Case BriefsHigh Courts

Orissa High Court: S.K. Sahoo, J. dismissed a criminal appeal for the acquittal of the appellant under Section 376 of the Penal Code, 1860.

The victim in the present case was forcibly raped by the appellant on the pretext that he will marry her. The appellant visited the victim on many occasions and raped her and would give her the assurance of marriage. Even after the victim became pregnant, the appellant continued raping her. The news of the pregnancy of the victim spread in the village and the appellant confessed his guilt before the uncles of the victim. He also admitted to having impregnated the victim in presence of the entire village post which, on 11-04-2011, she lodged an FIR. The trial Court acquitted the appellant on 28-06-2012 under Section 417 of the Penal Code but found him guilty under section 376 and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of rupees five thousand.

The appellant challenged this judgment and order of conviction on the grounds that there was a delay in filing the FIR by the victim and the prosecution has not satisfactorily explained this delay. It was further contended that there is no hard evidence to prove the age of the victim, and if the age of the victim is held to be more than sixteen years then it can be said that she was a consenting party.

Priyabrata Tripathy, Additional Standing Counsel for the victim, submitted that delay in lodging the FIR in a rape case cannot be a ground to hold the entire prosecution case suspicious. He argued that the victim remained silent an account of assurance of marriage given by the appellant and when the victim disclosed about her pregnancy, an FIR was lodged. Further, there is no infirmity in the evidence of the victim.

The Court held that, “the law is well settled that delay in lodging the FIR in an offence of rape is a normal phenomenon as the FIR is lodged after deliberation. It takes some time to overcome the trauma suffered, the agony and anguish that create the turbulence in the mind of the victim, to muster the courage to expose one in a conservative social media, to acquire the psychological inner strength to undertake a legal battle against the culprit.”

Secondly, the victim stated her age to be fifteen years at the time of her deposition, which was recorded on 13-08-2011. She stated that the occurrence last took place in 2010. No evidence was brought out in the cross-examination to challenge her age. The doctor who conducted ossification test of the victim stated that on the basis of the physical findings, dental examination and development of secondary sexual characteristics and menstrual history and ossification test, that the age of the victim to be more than fourteen years and less than sixteen years. Therefore, the question of the victim being a consenting party was not taken into account.

The appellant also submitted that he has been in judicial custody since 14-04-2011 and he was never released on bail either during pendency of the trial or during pendency of this appeal and therefore, he has already undergone the substantive sentence of eight years and three months and therefore, the substantive sentence should be reduced to the period already undergone.

The Court upheld the order of conviction of the appellant under Section 376 of the Penal Code, 1860 but reduced the substantive sentence from rigorous imprisonment for ten years to the period already undergone. In view of the enactment of the Odisha Victim Compensation Scheme, 2012, keeping in view the age of the victim at the time of occurrence and the nature and gravity of the offence committed and the family background, the Court recommend the case to District Legal Services Authority, to examine the case of the victim for grant of compensation under the Scheme.

The Criminal Appeal was dismissed and the appellant was released from jail custody.[Budha v. State of Odisha, 2019 SCC OnLine Ori 262, decided on 01-08-2019]

Case BriefsHigh Courts

Madras High Court: N. Anand Venkatesh, J. dismissed a petition filed by Prisoners Right Forum against the order of the Chief Judicial Magistrate whereby he had dismissed a complaint filed in the matter of the death of a prisoner in judicial custody. It was held that the forum, being a third party who was neither a victim not an aggrieved person, had no locus standi to file the present petition.

The deceased, a prisoner, died in judicial custody in April, 2014. An FIR was registered, enquiry conducted, and criminal proceedings initiated against the respondent officials. However, ultimately, the Chief Metropolitan Magistrate came to the conclusion that no offence was established against the accused persons, and therefore he dismissed the complaint. The said order was challenged by the Forum in the present petition under Section 482 CrPC.

The High Court was of the opinion that the preliminary issue to be decided was as to the locus standi of the petitioner Forum to file the petition. M. Radhakrishnan, Advocate led arguments on behalf of the Forum. Per contra, the respondents were represented by C. Emilias, Additional General, assisted by M. Mohamed Tiyaz, APP; and Senior Advocate N.R. Elango; and A. Gokulakrishnan, Advocate; all of whom opposed the petition.

The Court noted that the term locus standi is commonly understood as the right or the capacity to bring an action or to appear in a Court. The march of law, more particularly by way of public interest litigations, has now allowed anyone from the society, not related to the cause of action to approach the Court seeking justice for those who cannot or who could not approach themselves or in cases which involves the public interest at large. However, it was held that such right cannot be extended in a criminal case to a third party who is not in any way related to the case. It was observed: “If this practice is permitted in a casual manner, a meddlesome bystander can easily decide to attack a person who has been held to be not guilty by a Subordinate Court, by initiating a frivolous proceeding and thereby cause irretrievable injury to the life and liberty of the accused person.” The only exception that has been created in this regard is by the Supreme Court which has held that third parties will have right, in very exceptional cases, to approach the Supreme Court under Article 136 of the Constitution of India. Reference was made to Amanullah v. State of Bihar, (2016) 6 SCC 699; National Commission for Women v. State (NCT of Delhi), (2010) 12 SCC 599; Harsh Mandar v. Amit Anilchandra Shah, (2017) 13 SCC 420.

Holding that the petitioner had no locus standi to maintain the present petition, the Court dismissed the same.[Prisoners Right Forum v. State of T.N., 2019 SCC OnLine Mad 2476, decided on 22-07-2019]

Case BriefsHigh Courts

Kerala High Court: The Bench of N. Anil Kumar, J. allowed the bail application of a person accused of illegal possession of a psychotropic substance, on the ground that the quantity possessed by him was not ‘commercial quantity’ in terms of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Petitioner herein was accused of an offence under Section 22(b) of the NDPS Act. The prosecution allegation was that the petitioner was found in possession of 50 Nitrazepam tablets in contravention of the NDPS Act and Rules framed thereunder. He was arrested and produced before the Court on 12-03-2019 and had been in judicial custody since then.

Learned Public Prosecutor Mr D. Chandrasenan submitted that 50 Nitrazepam tablets, allegedly in possession of the petitioner, is not a commercial quantity as defined under the Act.

The Court noted that the commercial quantity of Nitrazepam, as prescribed under the table in NDPS Act at serial number 221 is 500 grams. There was nothing on record to show that the petitioner had any other criminal antecedents. Thus, it was opined that further detention of petitioner in judicial custody for investigation purpose was not required.

In view of the above, the petition was allowed, directing him to be released on bail on executing a bond of Rs 50,000.[Ashkar v. State of Kerala, 2019 SCC OnLine Ker 1406, Order dated 03-05-2019]

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench of Raja Vijayaraghavan, J.,  decided a bail application filed under Section 239 of the CrPC wherein it granted bail to the accused because of the default of the prosecution in filing the charge sheet.

The applicant herein was the sixth accused and was remanded to judicial custody on 19.5.2018. He had been languishing in judicial custody for more than 60 days. The counsel on behalf of the applicant submitted that the applicant was entitled to be released on bail on the default of the prosecution in filing the charge sheet within the prescribed period, which was 60 days in the present case.

The High Court observed that more than 60 days had elapsed from the date of remand of the applicant. The final report had not been filed after completion of investigation. The Court held that the applicant had absolute right to be released on bail and it found no reason to refuse the same. The application was accordingly allowed.[Sanal v. State of Kerala,2018 SCC OnLine Ker 3010, dated 09-08-2018]

Case BriefsHigh Courts

Patna High Court: In a criminal appeal decided by a Single Judge Bench comprising of Vinod Kumar Sinha, J., the period of sentence of imprisonment inflicted upon the accused under Sections 392 and 411 of IPC along with Section 25(1)(1-B) of the Arms Act was reduced to the period of imprisonment already undergone by the accused.

The accused stood convicted by the trial court under the abovesaid sections along with other sections of the Arms Act and were sentenced to undergo rigorous imprisonment of five years. The said order of the trial court was challenged by the accused in the instant appeal. The High Court considered the record as well as submissions made on behalf of the parties and upheld the conviction of the accused under the sections mentioned stated above. However, the conviction of the accused under other sections of the Arms Act was set aside. Learned counsel for the accused prayed to reduce their sentence of imprisonment.

The High Court perused the record and found that the accused remained in custody for more than three years; the incident occurred in the year 2002 and as such the accused have faced rigors of trial for more than fifteen years. Considering these facts and circumstances, the Court was of the view that the sentence of imprisonment inflicted upon the accused should be reduced to the period of imprisonment already undergone by them.

The appeal was disposed with the aforesaid modification in conviction and sentence. [Ranjeet Kumar Singh v. State of Bihar, 2018 SCC OnLine Pat 449, decided on 19-03-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of SC Dharmadhikari and Bharati H. Dangre, JJ issued a writ of habeas corpus ordering the release of the petitioner’s son, who had been illegally detained in unlawful continued judicial custody for more than sixty days. The detenu had been arrested by the Central Bureau of Investigation, Economic Offences Wing on 19-09-2017.

Following multiple remand applications requesting extension of custody of the detenu, the total detention period exceeded the maximum limit of sixty days on 23-11-2017. Under Section 167(2) of the Code of Criminal Procedure, a Judicial Magistrate is entitled to authorize a detention not exceeding 60 days for all offences, unless the offence is punishable with death, imprisonment for life or imprisonment for a period of at least ten years.

Though the prosecution contended that the charges framed against the detenu during the course of investigation involved offences that were punishable with death, with life imprisonment or with imprisonment for at least ten years, the Court held the detention beyond the period of 60 days to be in contravention of S. 167(2) CrPC and also violative of the right to life and personal liberty enshrined under Article 21 of the Indian Constitution. [Rajkumar Bhagchand Jain v. Union of India,  2017 SCC OnLine Bom 9435, order dated 08-12-2017]