Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. modified the order of sentence imposed on petitioner and directed that the sentences shall run concurrently and not consecutively.

Petitioner was alleged to have snatched a chain from a lade and threatening her with a weapon while fleeing. He was convicted under Section 382 read with Section 34 IPC and sentences to undergo 4 years rigorous imprisonment. He was also convicted under Section 25(1-B)(a) of the Arms Act and sentenced to undergo 1-year rigorous imprisonment. By the order on sentence, trial court directed both sentences to run one after the other, i.e. consecutively. This order was challenged in the present petition.

Archit Upadhyay, Advocate for the petitioner contended that the impugned order was erroneous and contrary to the settled position of law. He relied on Manoj v. State of Haryana, (2014) 2 SCC 153, wherein the Supreme Court interpreted Section 31 CrPC which relates ‘sentences in cases of conviction of several offences at one trial.’

The High Court noted that the offences committed by petitioner were part of the same transaction. The Court discussed the Manoj case while referring to Nagaraja Rao v. CBI, (2015) 4 SCC 302V.K. Bansal v. State of Haryana, (2013)  7 SCC 211Sharad Hiru Kolambe v. State of Maharashtra, 2018 SCC OnLine SC 1581. It was observed by the High Court that “if the accused convicted of separate offences under IPC as also the Arms Act but they are part of the same transactions, the sentences shall run concurrently and not consecutively.” As such, the impugned order of the sentence was modified to run concurrently. Furthermore, it was found that the petitioner had already undergone the substantive sentence and was therefore directed to be released forthwith. [Irfan v. State, 2019 SCC OnLine Del 6908, decided on 05-02-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Single Judge Bench comprising of Narayan Singh Dhanik, J. partly allowed a petition as a prima facie case was made out against the accused.

The applicant has prayed for quashing the Criminal Case filed under Sections 147, 148, 149, 452, 504, 323, 427 IPC and one under Section 3(1)x of the SC/ST Act.

The respondent through his counsel Pratiropp Pandey has filed an FIR by alleging that the applicant armed with a sword, pistol and lathi entered into his house and hurled abuses and caste indicating words “Neech” and “Chamar” and also assaulted him as well as his brother along with looting articles from his house. The applicant through his counsel Amit Kapri has contended that the provisions of the SC/ST Act were not attracted in this case as the FIR nowhere states that that the applicant does not belong Scheduled Caste or the Scheduled Tribe and that they intentionally insulted or intimidated the complainant and his brother with intent to humiliate them in a place within public view.

The Court here was of the view that the basic element needed to prosecute the applicant was missing here and thus the offence under the SC/ST Act cannot be sustained nonetheless the rest of the claim stood allowed.[Mahendra Bhatt v. State of Uttarakhand,2018 SCC OnLine Utt 1022, decided on 14-12-2018]

Hot Off The PressNews

As reported by media, a PIL has been filed in the Delhi High Court seeking regulation of content on online platforms such as Netflix, Amazon Prime Video, Hotstar, etc.

The PIL has been filed by an NGO named Justice for Rights Foundation for the purpose of removal of the content which is “uncertified, sexually explicit and vulgar” from the above-stated platforms as the content being streamed is in violation of the provisions of the Indian Penal Code (IPC) and the Information Technology Act.

Further, it has been stated by the petitioners that these online platforms offered vulgar, sexually explicit, pornographic, profane, virulent, religiously forbidden and morally unethical contents to attract more subscribers and generate profit.

The matter is listed for 14-11-2018.

[Source: The Pioneer]

Case BriefsSupreme Court

Supreme Court: A.M. Sapre, J. speaking for himself and Uday U. Lalit, J. allowed an appeal filed by the State of U.P. against the judgment of a Division Bench of the Allahabad High Court whereby the  appellant’s application under Section 378(3) CrPC was rejected and the judgment of Additional Sessions Judge acquitting the accused (respondents herein) was affirmed.

The respondents were prosecuted and tried for commission of offences punishable under Sections 363, 366, 376 and 120-B IPC. The Additional Sessions Judge, on appreciating the evidence adduced by the prosecution, acquitted the respondents of all the charges. Aggrieved by the acquittal, the appellant filed an application for leave to appeal under Section 378(3) before the High Court which was rejected vide the order impugned. Against this order of the High Court, the appellant preferred the instant appeal.

The Supreme Court referred to State of Maharashtra v. Sujay Mangesh Poyarekar (2008) 9 SCC 475 for looking at the parameters to be kept in mind by the High Court while deciding an application for leave to appeal. The Court perused the order impugned and felt constrained to observe that the High Court grossly erred in passing the same without assigning any reason. It was a clear case of non-application of mind, held the Supreme Court. The order impugned neither sets out the facts nor the submissions of the parties nor the findings nor the reasons as to why the leave to appeal was declined. In such circumstances, the order impugned was set aside and the matter was remanded back to the High Court for deciding the application afresh. The appeal was, thus, allowed. [State of U.P. v. Anil Kumar,2018 SCC OnLine SC 1223, dated 29-08-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of B.R. Gavai and Sarang V. Kotwal JJ., addressed a Criminal Appeal by setting aside the order of conviction and sentence in view of considering the matter in the purview of ‘benefit of doubt’.

In the present matter, the Appellant was convicted under Sections 376 (f) and 302 IPC for committing the rape of a 6-year-old child and murder thereafter. In accordance to the FIR lodged by the victim’s father. The appellant was found to be sleeping beside the deceased. The deceased was found with blood and injuries to her private parts.

While noting the facts of the case, the High Court found that the post-mortem report states the final cause of death as ‘death due to shock due to vaginal and anal tear with multiple injuries over body’. Also, the fact to be noted that was found on during the medical examination of the Appellant was that he had no injuries on his person with no blood or semen on any of the clothing of the appellant. There was no evidence of semen or vaginal fluid been taken off by washing from the private parts of the appellant.

Therefore, the case of prosecution lied only in the arena of ‘suspicion’ and the chain of circumstances against the appellant seemed to be incomplete, which awarded the appellant ‘benefit of doubt’ by acquitting the appellant in the present matter. [Sandip Ramesh Gaikwad v. State of Maharashtra,2018 SCC OnLine Bom 2067, dated 06-07-2018]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench comprising of Ravi Krishan Kapur and Joymalya Bagchi JJ., issued directions in a case involving commercial sexual exploitation of women and children that are to be followed as a standard operating procedure in the investigation and prosecution of such crimes.

The present case deals with the application for cancellation of bail for the offences under Sections 363/366/370/370 A/373/120 B/34 IPC, r/w Sections 3/4/5/6/7/9 of the Immoral Traffic (Prevention) Act, 1956, Sections 4/6/17 of the POCSO Act and Section 81 of the Juvenile Justice (Care and Protection of Children) Act, 2015. It has been alleged by the petitioner that after the disclosure of the opposite-party being involved in such grave offences with evidence on record, the order of anticipatory bail granted needs to be set aside as the order indeed seems to be given without any application of mind and in absolute mechanical manner.

While noting the facts and circumstances along with the submission of parties, the Court stated that ‘We are pained by the laconic and casual manner in which the learned Judge chose to allow an application for pre-arrest bail in a case relating to the commercial sexual exploitation of underage girls by an organised crime racket’.

Therefore, the High Court giving due weightage to the fact that menace of trafficking of women and minors have been observed in alarming proportions and the lackadaisical manner in which these cases are investigated, the following directions need to be adhered to:

  • FIR registered under I.T (P) Act or under Section 370/372/373 IPC or the provisions of the POCSO Act, needs to be investigated by specialized agency like Anti-Human Trafficking Unit.
  • FIR’s as stated in the above cases must be transferred within 24 hours to the specialized agency.
  • State Government to set up Anti-human Trafficking units in every district manned by police personnel, not below the rank of inspector, preferably women.
  • Section 164 CrPC: Statements of victims recovered under raid or any such circumstance to be recorded under the said Section.
  • Medical Assistance to victims under Section 357 CrPC.
  • Compensation under ‘Victim Compensation Scheme’ to be granted
  • Jurisdictional Magistrates/Special Courts shall seek reports from the investigating agency as well as Secretary, District Legal Services Authority.
  • Trial Court shall provide appropriate protection to the victims and its family members.
  • Depositions to be recorded within a month from the commencement of trial.

The High Court disposed of the application for cancellation of bail in accordance to the issued directions. [State of W.B v. Sangita Sahu, 2018 SCC OnLine Cal 4853, order dated 05-07-2018]

Case BriefsSupreme Court

Every attempt should be made by all the courts not to disclose the identity of the rape victim in terms of Section 228-A IPC

Supreme Court: The Bench comprising of Abhay Manohar Sapre and Uday Umesh Lalit JJ. while addressing the petition of a convict under Sections 376 and Section 342 IPC and affirming the sentence granted to him by the High Court, took notice of a very essential point of concern, that the name of the ‘rape’ victim has been stated in both the judgments of the Trial Court as well as that of the High Court.

The present order dealt with, the appeal of a rape convict under Sections 376 and 342 IPC with a sentence of 7 and 1 year respectively. The Supreme Court found no merits in intervening with the High Court’s conviction and sentence, therefore, the appeal was dismissed.

The point to be addressed was that of victim’s name being mentioned in the judgments of the Trial Court and High Court, which was inconsistent with Section 228-A of IPC. The Supreme Court while stating that the courts should make every attempt in not disclosing the identity of the victim, relied on the case State of Punjab v. Ramdev Singh (2004) 1 SCC 421.

Therefore, while dismissing the present appeal, the bench focussed on the point regarding the mentioning of rape victim’s name and further directed the Registry of the High Court to place the record of the appeal in the High Court for making appropriate changes in the record and passing of appropriate directions so that the trial courts comply and understand the essence of Section 228-A IPC. [Lalit Yadav v. State of Chhattisgarh, 2018 SCC OnLine SC 680, order dated 05-07-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of B.R. Gavai and Sarang V. Kotwal, JJ. dismissed an appeal filed against the judgment passed by the trial court whereby the appellant was convicted under Section 302 IPC.

The allegation against the convict was that he had murdered his wife. On a fateful day, the appellant himself came to the Police Station and informed about the death of the deceased. The investigation was completed and charge-sheet was filed. The Sessions Judge framed the charge against the appellant under Section 302 to which he pleaded not guilty. The appellant was tried and convicted under the said section. The appellant challenged the decision of Sessions Judge while submitting that the deceased had committed suicide.

The High Court perused the material available on record including the post-mortem report and evidence of the medical expert. It was noted that motive behind the commission of the crime could be gathered from the FIR; the deceased was not doing the work as told by the appellant, they had a regular quarrel, and the appellant was angry with her. The Court was of the view that the nature of injuries and the deposition of the medical expert proved beyond reasonable doubt that the death was homicidal. Death of the deceased occurred in suspicious circumstances. The appellant gave an explanation that the deceased committed suicide, which was wholly falsified by the medical evidence. Relying on the Supreme Court decision in Sharad Birdichand Sarda v. State of Maharashtra, (1984) 4 SCC 116: 1984 SCC (Cri) 487, the High Court held that a non-explanation or a false explanation given by the accused can be used to fortify the finding of guilt already recorded; the false explanation by the appellant was an additional circumstance in fortifying his guilt.  Thus, the appeal was dismissed. [Nazim Rashid Tamboli v. State of Maharashtra,2018 SCC OnLine Bom 1423, dated 28-06-2018]

Case BriefsHigh Courts

Patna High Court: The Division Bench comprising of Rakesh Kumar & Arvind Srivastava JJ., while setting aside the order of death sentence, held that the appellant was not provided with the appropriate legal aid which he was entitled to.

According to the brief facts of the case, the appellant was convicted under Section 302 of IPC for the offence of murder of two children. For the stated offence he was convicted by relying on the 5 witnesses out of the 16 mentioned witnesses. It has been stated that the cross-examination of all the witnesses could not be held due to appellant’s financial condition being poor and not being able to afford legal assistance in that regard.

The Hon’ble High Court, observes that the trial court should have taken steps for providing legal aid at the expense of the government as the case of appellant went weak due to the failure of cross-examination of all the witnesses and thereby  Section 304 of CrPC has also not been complied in that regard. The court also observed that the primary witnesses were not examined by the prosecution which compels it to set aside the decision of the trial court and requires the High Court to remit back the matter.

The trial court has also been directed to take up the matter twice a week without any unnecessary delay as it holds a grave issue of the murder of two children, only then a logical end to this case would be attained. [State of Bihar v. Ram Prit Mandal,2018 SCC OnLine Pat 1080, order decided on  04-04-2018]

 

Case BriefsHigh Courts

Gauhati High Court: A Single Judge Bench comprising of Hitesh Kumar Sarma, J., convicted the accused-appellant under Section 376(1) of the IPC, and made a correction by removing Section 8 of the POCSO Act as it was discovered by this Court that the victim was a major when the act of rape was committed upon the victim.

The brief facts of the case are that the accused/appellant had committed the offence of rape for which he was convicted by the learned Special Judge under Section 376 of the IPC combined with Section 8 of the POCSO Act. For the stated fact, an FIR was lodged and on receipt of the FIR, a case was registered under Section 376 of the IPC read with Section 8 of the Protection of Children from Sexual Offences Act, 2012. The learned Sessions Judge framed the charges against accused-appellant under Section 376 and 511 of the IPC as well as Section 8 of the POCSO Act.

The fact that the accused-appellant had committed the offence of rape on the victim who was intellectually disabled was allegedly proved from the fact that when he was asked to appear for a village meeting in which on being asked about the incident, he kept mum and therefore he was sent to jail.

However, on perusal of the records, the High Court stated that if any meeting of such manner as mentioned above was even held, the extra-judicial statements that were recorded at the meeting were all without strong corroboration and cannot be relied upon.

Therefore, the Hon’ble High Court on noting the fact that the victim was a major when the incident happened, acquitted the accused of the offence under Section 8 of POCSO Act, and upheld his conviction under Section 376 IPC on finding him guilty on the basis of the testimony of the victim. However, since the incident happened before the enforcement of Criminal (Amendment) Act, 2013, the accused was sentenced under Section 376(1) and his sentence was reduced from 10 years to 7 years. [Lila Duwarah v. State of Assam, 2018 SCC OnLine Gau 551, dated 18-05-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: A petition under Section 482 CrPC was filed by the petitioner  to conduct proper investigation in FIR registered by him in October, 2014 under Section 364/34 IPC registered at Police Station Malout, District Sri Muktsar Sahib. The petitioner also apprehended death threat from four police officials who are also the respondents in the case.

On hearing both the parties, Court examines the allegations by the petitioner on the respondents. The petitioner has alleged that in October, 2014, his son was kidnapped from Malout under the railway over bridge Malout by some police officials of Abohar while one official was in uniform and others were in civil clothes and accordingly, FIR was registered by the petitioner the very next day of kidnapping. However, later on, Abohar Police registered another FIR under Sections 399 and 402 IPC and Sections 25/54/59 of the Arms Act showing the arrest of petitioner’s son on 15.10.2014 at about 9.00 p.m. from a factory area in Abohar recording that they had received a secret information that five persons are making preparation to commit dacoity. Further, the offences under Sections 399 and 402 IPC were deleted and Amrik Singh was challaned only under Section 25 of the Arms Act and challan is since pending before Illaqa Magistrate for trial and the police also moved a cancellation report of FIR filed by the petitioner.

Conclusively, the Court observed that the allegations put by the petitioner were quite serious as he had alleged that son of the petitioner was falsely implicated after being kidnapped from Malout and Police Station Sadar Abohar registered the FIR for dacoity only after the registration of FIR by the petitioner under Sections 364/34 IPC registered at Police Station Malout regarding kidnapping of his son.

The Court noted the fact that the matter involved was regarding life and liberty of the petitioner and was thus, very serious. The Court concluded with its findings stating that that police officials have committed the crime, necessary departmental and criminal action shall be taken against them and police may also take further action in the FIR lodged by the petitioner and follow up action for quashing the FIR alleged to be falsely implicating the petitioner’s son. It ordered the authorities concerned  to conduct the inquiry and submit the report within 3 months. Accordingly, it allowed the petitioner’s appeal along with an additional order that the petitioner and his son would not be called to the police station without prior permission of the Court. [Balkar Singh v. State of Punjab, 2017 SCC OnLine P&H 1725, decided on 18th July, 2017]

Case BriefsHigh Courts

Punjab and Haryana High Court: The Court in this case dealt with a revision petition under S. 401 CrPC challenging the judgment of the trial court, Chandigarh convicting and sentencing him rigorous imprisonment for 2 years for substantive offences under Sections 420, 467, 468, 471 IPC.

Learned counsel for the petitioner argued that a few material witnesses were not examined in the case. The Court noted that the counsel for the revisionist-petitioner has raised various other arguments like material discrepancies in the statements of PWs, non-joining of independent witnesses etc. However, H. S. Madaan, J. mentioned clearly in the judgment that such type of contentions do not cut much ice and were not of much concern. The Court observed after hearing the arguments by the petitioner as well as on examining the records of the lower court that the trial court has by giving proper reasoning, has arrived at the conclusion that his non-examination does not make much difference, when the case is otherwise established on the file and it agreed to it.

The Court went on to explain the scope of revision petition before the High Court stating that revisional jurisdiction is somewhat limited in nature and while exercising the same it is to be seen whether the order passed is manifestly illegal or would result in gross miscarriage of justice and therefore, the instant case would not fall within four corners of S. 401 CrPC.

However, the Court considered that the petitioner was 65 years old and had already spent 8 months in jail and in lieu of this, directed that the petitioner be treated leniently. Also keeping in mind that there was no previous conviction against the petitioner, it held that the ends of justice would still be met if the sentence is reduced from two years to one-and-a-half years. [Rajinder Singh v. Union Territory, Chandigarh, 2017 SCC OnLine P&H 1717, decided on 18.07.2017]

Case BriefsHigh Courts

Bombay High Court: In this case before the High Court, victim was adopted when she was 9 years old by the accused after her mother succumbed to HIV. After her mother’s death, she was living in a protective home from where she was adopted by the accused and his wife. She complained about the sexual abuses to an NGO named ‘Childline’ that she was undergoing the trauma for several years and a complaint against the accused was registered under Section 354, IPC and Section 8 of the Protection of Children from Sexual Offences Act.

The Court relied on the fact that supervisor of the protective home had warned the adoptive parents about her abnormal and unnatural behaviour. The Court went on to rely on a note written by the prosecutrix herself to come to a conclusion that she was inherently abnormal and had sexual instincts from her childhood and also, blamed the conduct of deceased mother for the same. Justice Sadhana S. Jadav approved the bail application of accused on these grounds and on an additional ground that there was a considerable lapse of time when she lodged the complaint. [Domnic Richard Rodrigues v. State of Maharashtra, Cr. Bail Application no. 708 of 2016, decided on 16.01.2017]