Civil Law · Criminal Justice System · Uncategorized

Issues relating to Electronic Evidence – Admissibility, Section 65B certificate and other frequently asked questions.

Issues relating to Electronic Evidence

  1. What is an Electronic Record ?
  2. Types of Electronic Records.
  3. Is an Electronic Record a ‘document’ ?
  4. Is a ’Hard Drive’ a document ?
    • Admissibility of Hard Disk
  5. Proof of Electronic Record.
  6. Section 65B of the Evidence Act
  7. Effect of use of Non Obstante Clause in S.65B(1);
  8. Conditions : Section 65B(2) (a) & (c) related to computer’s integrity;
  9. What if Computer Malfunctions ?
  10. Conditions in Section 65B(2) (b) & (d) relating to the informational ‘chain of integrity’;
  11. Section 65B(4) Certificate
  12. Whether Mandatory ?
  13. Oral Testimony as to S.65B – whether sufficient compliance of Section 65B(4) ?
  14. Who is to file the certificate ?
  15. Stage of filing – Can the certificate u/s 65B(4) be received at a later stage, that is to say, after filing of the electronic evidence on record in the form of an output ?
  16. Whether judicial admission by the opposite party as to the electronic record dispenses with formal proof and compliance of Section 65B of the IEA ?
  17. E-Contract – territorial jurisdiction;
  18. Challenging issues in interface with Criminal Law.

 

  1. What is an Electronic Record ?

2(t) of the IT Act “Electronic Record” means Data, Record or Data Generated, Image or Sound Stored, Received or Sent in an Electronic Form or Micro Film or Computer Generated Micro fiche;

 

  1. Types of Electronic Record.

Pen Drive, CD, DVD, Whatsapp message, email, SMS, Video, image file etc.

 

  1. Electronic Records as ‘documents’ for the purpose of Evidence Act.

Section 3 of Indian Evidence Act.

“Evidence” – ‘Evidence’ means and includes—

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry;

Such statements are called oral evidence

(2) all documents including electronic records produced for the inspection of the Court;

such documents are called documentary evidence.

 

  1. Whether a ‘Hard Disk’ is a document ?

Answer is Yes.

Dharmabir Vs. CBI  (2008) DHC  –

  • New Hard Disk (blank slate) is merely a storage device.
  • Hard Disk once data/information is written on it, becomes a electronic record. (S.2(t) of the IT Act)
  • From Electronic Record to document (S.3 IEA)
  • Two Levels of Electronic Record : Active memory & Subcutaneous memory;
  • Accused entitled to both.
  • Right of the accused under sections 207 (v) and 173(5)(a) of the Cr.P.C.

 

  1. Proof of Electronic Record : Primary – Secondary
  2. Primary Evidence – (eg : Original Device/Electronic Record)  directly admissible u/s 62 of the IEA. (Kishan Tripathi Vs. The State, Delhi High Court 2016 held : Original Hard Disk containing CCTV Footage = primary evidence u/s 62 IEA
  3. Secondary Evidence (Output) Admissible u/s 65B of the IEA.

 

  1. CONDITIONS AS TO ADMISSIBILITY OF ELECTRONIC EVIDENCE IN COURT

 

Section 65B(1)

Notwithstanding anything contained in this Act, any information contained in an electronic record

  • which is printed on a paper;
  • stored, recorded or copied in optical or magnetic media produced by a computer
  • shall be deemed to be also a document, if the conditions mentioned in this section are satisfied.
    • in relation to the information and
    • computer in question and
  • shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

 

  1. Use of Non Obstante clause in S.65B(1)

Notwithstanding anything contained in this Act”  ~ See class notes for detailed discussion.

 

  1. 65B(2): Conditions (a) & (c)

a) The computer from which the record is generated was regularly used to store or process information in respect of activity regularly carried on by a person having lawful control over the period, and relates to the period over which the computer was regularly used;

c) The computer was operating properly, and if not, was not such as to affect the electronic record or its accuracy;

Broadly related to Computer’s integrity and Lawful Control

 

  1. What if computer is malfunctioning ?

Bank ATM – withdrawal case !

Sri. P. Padmanabh Vs. Syndicate Bank Limited, 2008 Karnataka High Court.

If Computer is malfunctioning output may become inadmissible.

ATM link lost > Person took out more money than he was entitled > Bank alleged defendant took advantage of computer malfunction > sued for recovery of that amount > in evidence, relied on electronic evidence of withdrawal of money > held : when the ATM/Computer itself was admittedly malfunctioning, output not admissible in evidence.

Therefore, the proper functioning of the computer > accuracy of data > chain of integrity is extremely important.

 

  1. 65B(2): Conditions (b) & (d)

b) Information was fed in computer in the ordinary course of the activities of the person having lawful control over the computer;

d) Information reproduced is such as is fed into computer in the ordinary course of activity.

Broadly related to informational integrity

 

  1. Certificate u/s Sec. 65B(4): Certificate :
  • identifying the electronic record containing the statement and describing the manner in which it was produced;
  • giving the particulars of any device involved in the production of that electronic record
  • dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,

 

  1. Whether certificate u/s 65B Evidence Act is mandatory ?
  • Earlier view – No (State (NCT of Delhi) v. Navjot Sandhu (2005) SC)
  • Current view – Yes. ((ANVAR P.V. VS. P.K. BASHEER AND OTHERS – 2014 (SC) Navjot Sandhu stands overruled in this context by PV Anvar.
  • See Dictation Notes for detailed discussion.
  • Generalia Specialibus Non Derogant

 

  1. Oral Deposition as to conditions of S.65B(2) – whether sufficient compliance ?

Oral Statement in court as to compliance of Section 65B of the IEA will not suffice and certificate u/s 65B is mandatory.  Jagdeo Singh and Ors. Vs. The State (2015) Delhi High Court

Principle : When something is categorically prescribed to be done in law in a certain manner, it has to be done in that manner alone and no other.

 

  1. Who is Competent to issue the certificate ?

After mentioning the contents of the certificate, the latter part of Section 65B(4) reads as under :-

  • and purporting to be signed by a person.
  • occupying a responsible official position in relation to the operation of the relevant device or
  • the management of the relevant activities (whichever is appropriate)
  • shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

 

Section 65B(4) Certificate and the Doctrine of Hearsay

  • In cases where information as to proper functioning of computer system/server is derived from system logs, made in the ordinary course of business, a witness deriving his knowledge from such written records can produce certificate u/s 65B(4) and prove the electronic record and his testimony is not barred by doctrine of hearsay.
  • This is premised on the fact that : Proper functioning of the computer in such cases is not a matter of personal testimonial knowledge but knowledge derived from records maintained in the usual course of working of the system.
  • Doctrine of hearsay primarily applies in the domain of oral evidence.
  • Doctrine of hearsay limited in its application in cases of Electronic Evidence. (Kundan Singh Vs. The State (2015) Delhi High Court)

 

 

  1. Stage of filing of certificate u/s 65B(4) ? Is it mandatory to file it alongside the electronic evidence output or can it be filed later ?
  • Certificate u/s 65B IEA can be filed even after receipt of document/Electronic evidence on record.
  • Court may invoke Sections 91, 311,391 of the CrPC to facilitate filing of certificate. Investigating authority (police) can also file the certificate alongwith a supplementary police report u/s 173(8) of the CrPC.
  • In civil proceedings, Ord. XVI R. 14, Ord. XVIII R.17 r/w 151 CPC can be used to recall a witness for the purpose of certificate.

 

(See : Kundan Singh Vs. The State (2015) Delhi High Court & Paras Jain and Ors. Vs. State of Rajasthan,(2015) Raj. HC).

 

  1. Whether judicial admission by the opposite party as to the electronic record dispenses with formal proof and compliance of Section 65B of the IEA ?

 

Judicial Admission by the Witness as to electronic record waives the requirement of formal proof and conditions of Section 65B IEA need not be complied with.  (Shamsher Singh Verma Vs. State of Haryana, 2015 – SC)

 

  1. E-Contract – territorial jurisdiction;

 

Section 13(3) of the IT Act reads as under :-

 

(3) Save as otherwise agreed to between the originator and the addressee, an electronic record is deemed to be despatched at the place where the originator has his place of business, and is deemed to be received at the place where the addressee has his place of business.

 

P.R. Transport Agency vs. Union of India & others – 2005 SCC OnLine All 880 Allahabad High Court.

  • No expert opinion can be led w.r.t an electronic evidence without first complying with Section 65B of the IEA. (See Anvar P.V v. P K Basheer, 2014 SC)

 

  1. Electronic Evidence Vis-à-vis Criminal Law and the Constitution.
    • Section 27 of IEA or Section 65B – which one is to prevail ?
    • Certificate from the Accused u/s 65B(4) IEA – is it a violation of Article 20(3) of the Indian Constitution ?
Advertisements
Criminal Justice System · Uncategorized

All you need to know about the Law relating to Money-Laundering in India

The Indian Government’s crackdown on black money continues unabated and a spate of prosecutions have been launched in the recent times under the Prevention of Money Laundering Act, 2002. This article is an attempt to demystify the law relating to money laundering in India and provide a brief overview of its scheme and operation.

1. What is Money Laundering ?

Investopedia[2] defines money laundering as The process of creating the appearance that large amounts of money obtained from serious crimes has originated from a legitimate source.”

Illegal arms sales, smuggling, and other organized crime, including drug trafficking and prostitution rings, can generate huge amounts of money. Embezzlement, insider trading, bribery and computer fraud schemes can also produce large profits and create the incentive to “legitimize” the ill-gotten gains through money laundering. The money so generated is tainted and is in the nature of ‘dirty money’. Money Laundering is the process of conversion of such proceeds of crime, that is to say the ‘dirty money’, to make it appear as ‘legitimate’ money.[3]

1.1              The USUAL modus operandi

A case of Money laundering ostensibly appears to be an above-board financial transaction, however, the criminality underneath is hidden by a three stage process :

  • The first stage is when the crime money is injected into the formal financial System. This is called ‘placement’;
  • In the second stage, money injected into the system is layered and spread over various transactions with a view obfuscate the tainted origin of the money. This process is called ‘layering’;
  • In the third and the final stage, money enters the financial system in such a way that original association with the crime is sought to be obliterated so that the money can then be used by the offender or person receiving as clean money. This is called ‘Integration’.

1.2             Methods of Money Laundering

Structuring, Bulk Cash Smuggling, Cash Intensive Businesses, Trade-based laundering, Shell companies and trusts, Round-tripping, Bank Capture, Gambling, Real Estate, Black Salaries, Fictional Loans, Hawala, False invoicing are some of the common methods of money laundering.

2. What is the Indian Law on the subject ?

In India, the specific legislation dealing with money laundering is the Prevention of Money-Laundering Act, 2002 (for short ‘PMLA’). The law was enacted to combat money laundering in India and has three main objectives :

  • To prevent and control money laundering;
  • To provide for confiscation and seizure of property obtained from laundered                                  money; and
  • To deal with any other issue connected with money-laundering in India.

Apart from the provisions of PMLA, there are other specialised provisions such as RBI/SEBI/IRDA anti money laundering regulations. Many of these authorities are bound to provide suspicious transaction reports, which are in-turn analysed by Financial Intelligence Units established by the Central Government.

3. What is the Legal Definition of Money Laundering ?

3.1       Money Laundering

The offence of ‘Money Laundering’ is defined under Section 3 of the PMLA, which, for ease of understanding, can be deconstructed as :

Whosoever :

  • directly or indirectly,
  • attempts to indulge, or
  • knowingly assists, or
  • knowingly is party, or
  • is actually involved in
  •             any process, or activity connected,
  • with the Proceeds of Crime, including its :

            ◦          Concealment,

            ◦          Possession,

            ◦          Acquisition or use; and

  • Projecting or Claiming it as Untainted Property

                     shall be guilty of offence of Money-Laundering.

It is clear that the section is most widely worded and almost any kind of dealing with the proceeds/fruits of crime, is brought within the purview of the section and made culpable.

3.2       ‘Proceeds of Crime’

An understanding of the phrase ‘Proceeds of Crime’ is crucial to the understanding of the crime of Money Laundering. The offence of money laundering (defined u/s 3 and punished u/s 4 PMLA) is attracted only when the laundered property falls within the definition of ‘proceeds of crime’

To understand what is meant by ‘Proceeds of Crime’, one has to turn to Section 2(u) of PMLA, which provides that – ‘proceeds of crime’ means and includes :

  • Any property derived or obtained
  • Directly or indirectly
  • By any person
  • as a result of criminal activity
  • relating to a ‘scheduled offense’; or
    • the value of any such property

To further add teeth to this provision, the Finance Act of 2015 has further widened the definition of proceeds of crime and included within its ambit not only the specific property (which is the subject matter of money laundering) or its value, but also the property-equivalent in value held within the country (in a situation where property which is the ‘proceed of crime’ is taken or held outside the country). Such properties are also included within the definition of ‘proceeds of crime’. This principle of equivalence has been introduced by the Finance Act, 2015 for the first time.

To illustrate, if a person X has been accused of having proceeds of crime in country X, in that situation, his assets in India of the same value will qualify as ‘proceeds of crime’, even though these assets per se are not the ‘proceeds of crime’ or in no way connected to it. This has been done with a view to enable action in those cases where ‘proceeds of crime’ are taken or held outside the country and to allow action to be taken for attachment of equivalent asset located within the country. This step appears to have been taken in view of the increasing internationalisation of crime. However, this gives rather wide and unguided powers of attachment to the authorities under the Act, which may be exercised arbitrarily.

The Interconnectedness of PMLA and ‘scheduled offence’ 

A reading of the above definition of ‘proceeds of crime’ also makes one more thing clear, which is extremely crucial to an understanding of the offence of Money Laundering, which is that the offence of Money Laundering is not an independent crime; it depends upon another crime, which is known as the ‘predicate offence’ or ‘scheduled offence’, the proceeds of which are made the subject matter of crime of money laundering. The world over, countries include almost all serious crimes as predicate crimes for the purpose of money laundering offence, with a view to widen the ambit of prosecution.

In the next section we deal with the Schedule and the list of predicate offences.

4. What are the scheduled/predicate offences which entail proceedings under PMLA ?

4.1       List of Offences

Under PMLA, commission of any offence, as specified in the Part A and Part C of the Schedule of PMLA will attract the provisions of PMLA. Some of the Acts and offences, which may attract PMLA, are enumerated herein below:

  • Part A enlists offences under various acts such as : Indian Penal Code, 1860 (including but not limited to offences against Property such Cheating, Forgery, Counterfeiting, Fraud, murder etc) Narcotics Drugs and Psychotropic Substances Act, 1985, Prevention of Corruption Act, 1988 SEBI, Customs Act, 1955, Foreigners Act, Arms Act, Antiquities and Art Treasures Act, Copyright Act, 1957, Trademark Act,1999, Wildlife Protection Act, 1872, Information Technology Act, 2000, amongst others.
  • Part B offences (offence under the Customs Act), provided the value of property involved is more than one crore rupees or more;
  • Part C deals with trans-border crimes, and reflects the commitment to tackle Money Laundering across International Boundaries.

 

5. Authorities entrusted to investigate/prosecute under the PMLA?

Though the Code of Criminal Procedure governs the procedural aspects of prosecution, there are marked deviations from the standard procedure considering the special nature of the offence (including its cross border character) and slightly different process is envisaged. The offence is cognizable which means arrest can be made without a warrant.[4] There is a specialised investigative body for investigation of these offences. The Directorate of Enforcement in the Department of Revenue, Ministry of Finance is responsible for investigating the offences of money laundering under the PMLA.  Investigation usually begins with the registration of an Enforcement Case Information Report (also known was ECIR) which sets the investigation into motion.

This authority is empowered to carry out interim measures such as survey, search, seizure and arrest of the accused. Similarly, if an asset is found to be the proceeds of crime, the same can be confiscated and appropriated by the Government.

Financial Intelligence Unit – India (FIU-IND) under the Department of Revenue, Ministry of Finance is the central national agency responsible for receiving, processing, analyzing and disseminating information relating to suspect financial transactions to enforcement agencies and foreign FIUs.

The predicate/scheduled offences are separately investigated by agencies mentioned under those acts, for example – the local police, CBI, customs departments, SEBI or any other investigative agency, as the case may be.

After investigation is complete for the offence of money laundering, a complaint is filed by the investigating authority before the Special Court, where the trial for the offence actually takes place.

Since the offence of Money laundering is inextricably connected with the predicate offence, 2013 amendments to the PMLA provide that the trial for the predicate offence as well as offence punishable under Section 4 shall be conducted by the Special Court. If court which has taken cognizance of the scheduled offence is other than the Special Court (which has taken the cognisance of the complaint of the offence of money laundering under sub-clause (b), it shall, on an application by the authority authorised to file a complaint under this Act, commit the case relating to the scheduled offence to the Special Court and the Special Court shall, on receipt of such case proceed to deal with it from the stage at which it was committed. [5]

As opposed to this, the process relating to attachment of property (including its confirmation) is dealt with by the Adjudicating Authority established under the Act.

6. Actions that may be initiated against person laundering money?

  • Attachment of property under Section 5, seizure/freezing of property and records under Section 17 or Section 18.
  • Persons (Individuals and/or juristic person such as a Company etc) found guilty of an offence of Money Laundering are punishable with imprisonment for a term which shall not be less than three years but may extend up to seven or even ten years (depending on circumstances) and shall also be liable to fine (no upper limits) [Section 4].[6]

7. Attachment of Property.

The PMLA gives extremely wide powers to the authorities to attach properties suspected to be involved in Money Laundering. Section 5 of the PMLA authorises the Director or any other officer not below the rank of Dy.Director to attach property. This power is to be exercised if the authority, as specified above, has a reason to believe (and such reasons have to be recorded in writing to prevent arbitrariness), on the basis of material in their possession, that –

Any person is in possession of any Proceeds of Crime; and such Proceeds of crime are likely to be :

  • Concealed,
  • Transferred, or
  • dealt with in any manner

which may result in frustrating any proceedings relating to confiscation of such proceeds of crime.

 If the aforesaid conditions are satisfied, the authority may by order in writing, provisionally attach such property for a period not exceeding 180 days from the date of order.

Under normal circumstances, presence of a complaint/police report against the accused for the predicate/scheduled offence, whether in India or abroad, is a necessary precondition for provisional attachment of property.  This is, however, not an absolute pre-condition and in cases where immediate attachment is needed and non-attachment is likely to frustrate the proceedings, the Director or the Dy.Director, for reasons to be recorded in writing, may nevertheless go ahead with provisional attachment even with there being no prosecution qua the scheduled offence against the accused. 

It may be noted that there is no provision for a prior notice of a provisional attachment and the same can come like a total bolt from the blue.

What happens post-provisional attachment ?

After provisional attachment, the Director or any other officer, has to file a complaint stating the facts of such attachment before the Adjudicating Authority, within a period of thirty days from such attachment

Remedy

Thereafter, the person aggrieved by the provisional attachment may file his objections before the Adjudicating Authority.  This is the remedy under the PMLA, however, an order without jurisdiction or suffering from any jurisdictional error may be challenged directly before the High Court by invoking Article 226 of the Constitution.  The Courts have held that a mere mechanical noting that the property in question is likely to be concealed, transferred or dealt-with would not meet the requirements of Section 5(1) of the Act and such a non speaking order by a Director can be set aside in writ proceedings by the High Court if it is devoid of strong and cogent reasons[7]

 

  1. Can provisional attachment be invoked against a person not accused of any Scheduled Offence ?

 The answer is Yes. Provisional attachment can be invoked even against a person who is not accused of any ‘scheduled-offence’. A conjoint reading of Sections 2(s) and 2(u) reveals that reference made is to ‘any person’; this coupled with the purpose and intent of the Act, calls for a wide interpretation.

In fact, Section 5(1) second proviso specifically allows attachment of property in the hands of a  third person even without there being a prosecution qua that person under the PMLA. It provides that if the designated officer has reason to believe that the property in possession of such person is involved in Money-Laundering, and non-attachment will frustrate any proceedings under the Act, he can go ahead and attach the same. The essence of the matter being ‘freezing of tainted assets’ at the earliest.

However, even post attachment, the person may continue in the enjoyment of the property during the period of attachment, but is prohibited from creating any third party interest in the property.

  1. Post Attachment proceedings.

We have already seen that after provisional attachment u/s 5 of the PMLA, the Director has to file a complaint before the Adjudicating authority. Section 8 of PMLA lays down an elaborate procedure for adjudication of a complaint under Section 5 of PMLA. It calls for a show cause notice to be issued to the offender/person from whom property has been seized, so as to give the person an opportunity to make a case against attachment/confiscation. Such a person, in order to avoid confiscation, can demonstrate the legitimate sources of his income, earning or assets, out of which or by means of which he has acquired the property attached, the evidence on which he relies and other relevant information and particulars, and to basically convince the authority as to why all or any of such properties should not be declared to be the properties involved in money-laundering and confiscated by the Central Government. The Authority after giving him a hearing reaches a finding, which needless to state is open to challenge before the Appellate Tribunal.

If the Adjudicating Authority, after the enquiry, comes to the conclusion that any property is involved in money laundering, it can, by an order in writing, confirm the attachment of the property. Such attachment shall :

  1. continue during the pendency of proceedings relating to any scheduled offence before a Court; and
  2. become final after the guilt of the person is proved before the Special Court and order of such Court becomes final;
  3. after the confirmation of provisional order of attachment, the Director or any other officer authorised by him in this behalf shall forthwith take the possession of the attached property.

Essentially, once the provisional attachment is confirmed, the final fate of the property depends on the decision of the Special Court (trying the offence under the PMLA). If the offence under PMLA stands proved, the Special Court shall order confiscation of the property to the Central Government. If the Special Court reaches the conclusion that the offence has not taken place, it shall order release of such property to the person entitled to receive it.

Appeal against confirmation of Attachment

Decisions of the adjudicating authority of first instance can be appealed to the Appellate Tribunal  created under the Act.

Adjudicating Authority and Special Court – Relative scope

It is to be noted that the Adjudicating Authority under this section is concerned with questions of continuation of attachment and/or retention of property involved in money laundering and not the trial of offence of money laundering or the scheduled offence, which function falls for a judicial trial by the Special Court.

Procedure before the Adjudicating authority

 The Adjudicating Authority has been given vast powers of discovery, inspection, compelling production of records as per S.11 of the Act. Section 11 spells out the powers of the Adjudicating Authority in discovery of facts, Section 50 does so in respect of a Director.

Needless to state, being a quasi judicial authority, both of them have to conform to the principles of Natural Justice.

As per established principles, following duties are imposed on quasi judicial authorities :- (i) A quasi-judicial authority ought not to make any decision adverse to a party without affording an opportunity of meeting the allegations made against him; (ii) The party whose rights are to be affected should be provided with the information upon which the action is raised and the affected party should have reasonable notice of the case which he has to meet/face. Of course, an opportunity is to be provided to the affected party which must be real, reasonable and substantial too; (iii) The affected party should have the opportunity of letting in/adducing evidence which he relies upon.

 9A. Whether an accused can be called upon to disclose documents and give statements, or can he exercise the right to silence?

Section 11(2) & S.50(3) of the PMLA makes it mandatory for a person so summoned by the adjudicating authority to attend in person and bound to disclose documents as may be required, and answer such questions as are put and for the purposes of these sections, the adjudicating authority is considered a ‘court’ and proceedings ‘judicial proceedings’.

Moreover, Section 50(1) prescribes taking of affidavits on oath with respect to discovery of facts.

On a plain reading, any person will include an accused person too. Now, whether the accused can be compelled to disclose documents and disclose facts is a serious question as it makes serious inroads into the constitutional right of silence of the accused and protection from self incrimination, as guaranteed under Article 20(3) of the Constitution. However, the law as it stands makes the statement recorded before the Investigating officer under PMLA admissible in evidence before the Court.[8] (This, it may be noted, is in stark contrast to any other criminal prosecution where statements given to Police during investigation are not admissible in evidence during trial).

  1. Powers of the Enforcement Directorate relating to Search, Seizure and Arrest.

10.1            Search of premises

Section 17 gives wide powers of search and seizure to the investigating agency. If the investigating agency has reason to believe (and such belief should be recorded in writing) the commission of offence under the PMLA and possession of proceeds of crime, it can enter and seize property/records etc, make an inventory of the same. The seizure memo is required to be signed by two independent witnesses.

Whereas this section provides for search of premises, Section 18 provides for search of an individual.

10.2            Search of person

If the investigating authority has a reason to believe that a person has secreted about his possession, ownership or control, proceeds of crime, in that case the person can be searched. Before the search of a person, as per his wish, the authority shall take the said person before a Gazetted officer superior in rank to the authority or a Magistrate within 24 hours excluding the time of journey. This is the safeguard laid down in S. 18(4) of the PMLA, however, strangely there is no corresponding obligation on the investigating agency to inform the person about to be searched of this valuable right. Something akin to a Miranda warning will be apposite here.

The property seized has to be forwarded to the adjudicating authority for further orders.

10.3            Arrest

The offence is cognizable which means arrest can be made without a warrant.[9] Section 19 gives the authority power to arrest. Standard safeguards relating to arrest apply. Every person arrested has to be produced before the Magistrate within 24 hours (excluding time of journey).  The provision also mandates that such arresting official has to forward a copy of such arrest memo with the material in his possession to the adjudicating authority in a sealed envelop as per the procedure prescribed.

Apart from these, the investigating officer may summon and record the statements of persons concerned (S.50 of PMLA)

 

  1. Right to Bail

Section 45 of the PMLA makes the offence of money laundering non-bailable, which means that a person arrested is not entitled to bail as a matter of right, and bail becomes a matter of discretion for the court. If the predicate offence provides for punishment more than 3 years, then there is an embargo on release on bail, unless either the offence concerns a child, woman, sick or infirm; if not, then bail can only be granted after hearing the Prosecutor and only after the court comes to the conclusion that “there are reasonable grounds for believing that he is not guilty of such an offence and that he is not likely to commit any offence while on bail”. Now this is an extremely tall order, especially having regard to the fact that the matter is usually at a preliminary stage when the question of bail is being decided. For a court to record a finding, at that stage, that there are no reasonable grounds for believing commission of the offence is an unnaturally high threshold. Usually the prosecution will prepare the case in such a way so that it contains the basic allegations and there is a very less likelihood of it being thrown out at the very outset. Once that is done, the court, at the stage of bail, will normally not be in a position to return a finding of non-guilt in favour of the accused.

This makes serious inroads into the right & presumption of innocence in favour of the accused. An accused is presumed to be innocent till his guilt is proved beyond reasonable doubts. Pre-trial incarceration is frowned upon by law, as it carries a substantial punitive content and has a stigmatic effect. Such incarceration is not only a denial of ‘due process’ but prejudices the accused in the preparation of defence of his case.

Secondly, if in a case, the court releases the accused on bail, in view of the above findings and at the same time frames charges against him and takes the matter to trial, would not the two findings be mutually destructive of each other. These are some of the major anomalies with this provision and a serious constitutional challenge can be mounted on this provision on the above grounds.

  1. Can a Company and its Directors/Managers/Secretaries be accused of offence under PMLA ?

Section 70 of PMLA deals with offences by Companies. It states that where a person committing a contravention of any of the provisions of this Act or of any Rule, Direction or Order made there under is a Company (company” means a body-corporate and includes a firm or other association of individuals), in that case: every person who, at the time the contravention was committed, was in charge of, and was responsible to the company, for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall also be liable to be proceeded against and punished under PMLA. This is an instance of what is known as ‘Vicarious Liability’ where liability for the acts of the company is also attributed on the individuals heading responsible positions in the company on the premise of them being the alter egos/nerve-centers of the company.

The possible defence and exception to this is for the individual to argue and prove that the contravention took place without his knowledge/despite all due diligence.

S.70(2) further provides that if the contravention has took place with the consent or connivance of, or is attributable to any neglect on the part of any Director, Manager, Secretary or other Officer of any Company, such Director, Manager, Secretary or other Officer shall also be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly.

 

  1. Obligations of Banking Companies, Financial Institutions and Intermediaries

Under Section 12 of PMLA, there is a mandate on all Banking Companies, Financial Institutions and Intermediaries to maintain records of all transactions, including information relating to transactions for a period of 5 years, in such manner as to enable the investigating agency/Court to reconstruct individual transactions and find out criminality. The aforesaid agencies are required furnish to the concerned Authorities under PMLA, all information relating to such transactions, whether attempted or executed; the nature and value of such transactions; verify the identity of its clients and the beneficial owner, if any; and maintain record of documents evidencing identity of its clients and beneficial owners as well as account files and business correspondence relating to its clients.

  1. Trial of PMLA offence and scheduled offence

Since the offence of Money laundering is inextricably connected with the scheduled offence, 2013 amendments to the PMLA provide that the trial for the predicate offence as well as offence punishable under Section 4 shall be conducted by the Special Court. If a Court which has taken cognizance of the scheduled offence is other than the Special Court (which has taken the cognizance of the complaint of the offence of money laundering under sub-clause (b), it shall, on an application by the authority authorised to file a complaint under this Act, commit the case relating to the scheduled offence to the Special Court and the Special Court shall, on receipt of such case proceed to deal with it from the stage at which it was committed. [10] However, this by itself should not be construed to mean a joinder or clubbing of trial. The simultaneous trial in both the cases by the same court is an expedient to reduce delays. Needless to state, both the cases are independently tried and decided on the basis of evidence in each case.  The trial of scheduled offence and PMLA offence is to be conducted by the same court – only for the sake of expediency.

The interconnectedness of PMLA and ‘scheduled offence’

It would be a truism to say that the offence of Money Laundering is inextricably linked with the scheduled offence and, logically, an exoneration in the latter should, by itself, lead to an acquittal/discharge for the offence of money laundering too. This view seems not only just and legal but also deserves to be adopted for its eminent common-sense, for if there is no scheduled offence, there cannot be any ‘proceeds of crime’ either, as the ‘crime’ in the phrase ‘proceeds of crime’ is nothing but the scheduled offence. In other words, the Special Court trying the PMLA case cannot conclude, without the scheduled offence being proved, that some property associated with that offence is tainted as ‘proceeds of ‘crime. For something to be ‘proceeds of crime’ there has to be a crime in the first place. Any other view would make the two judgments mutually inconsistent, absurd and contradictory. Therefore, an acquittal/discharge in the predicate/scheduled offence should ipso facto lead to exoneration in the PMLA offence too. Infact, since it is the same Court which tries both the scheduled offence and the PMLA case (arising out of the scheduled offence), a discharge/acquittal in the scheduled offence itself leads to a discharge/acquittal for the PMLA offence too. A conclusive decision by the Hon’ble Supreme Court is required on the matter so as to settle the issue.

It may be noted that this provision cannot be construed to mean that the Enforcement Directorate (the investigating body under the PMLA) can investigate into the scheduled offences also. Investigation for each of the offences is to be done by agency(agencies) authorised under the respective acts. Investigation by an agency other than ED for an offence under PMLA may open the entire investigation (and its result) to challenge.

 

  1. Evidence, Presumptions and Burden of Proof

Keeping in view the difficulty of investigation in complex cases like money laundering, PMLA makes a departure from the standard rule of presumption of innocence and raises certain presumptions. This is an application of the ‘doctrine of reverse burden’. Such provisions, needless to say, make the defence of a PMLA case quite challenging.

15.1            presumption of property being tainted property

Section 24 of the PMLA casts the burden of proving that (alleged) proceeds of crime are not involved in Money Laundering on the Accused. This prima facie appears harsh, but on a deeper scrutiny it seems that this section will not relieve the prosecution of its responsibility of making a specific allegation that the monies that are allegedly being laundered are earned by committing a particular schedule offence or offences under the PMLA and are, therefore, proceeds of crime. The section cannot be read so as to obviate the requirement for the prosecution to prove these foundational facts. Any other view shall seriously undermine the fairness of the process, as one has to keep in mind that negative proof (proof of innocence, as opposed to proof of commission), by its very nature, is extremely difficult to be established. It is always easier to prove a positive, than a negative. The language of Section 24 (a) demonstrates that a person should be ‘charged’ for an offence under Section 3, in order for the presumption to follow. Charge has to be read to mean a specific charge and not a vague and omnibus allegation. However, once that charge is made, the accused will have justify that the property is not tainted with vice. This can be done by making it reasonably probable that the property is legitimately acquired by lawful means. He can disclose his sources of Income, Earnings or Assets, out of which or means by which he has acquired the property attached. As per fairly established principles of standard of proof, the accused does not have to prove all this to the hilt or beyond all reasonable doubt, but on a standard of preponderance of probability, that is to say, that it is more probable that the property is above board, than not.

15.2            presumption in inter-connected transactions

Where proceeds of crime are layered through plural transactions, the intent to camouflage the source of the property as a derivative of criminality renders it difficult to identify the succeeding transactions as relatable to the initial proceeds of crime. It is for this reason and to effectuate the purposes of the Act that Section 23 incorporates the presumption that where money-laundering involves two or more connected transactions and one or more such transactions is/are proved to be involved in money-laundering, then for the purposes of adjudication or confiscation under Section 8, it shall, unless otherwise proved to the satisfaction of the adjudicating authority, be presumed that the remaining transactions form part of such interconnected transactions i.e., involved in money-laundering as well. (Section 23 of PMLA).

15.3            presumption in cases of records/property found in possession of person

A presumption is raised that property/records/documents found, seized from the possession or control of a person actually belong to such person (from whom they are seized) and the contents of such records are true. Further, there is also a presumption as to the records being in the handwriting/signatures of the person from whose possession they are seized. Due to the operation of the presumption, the onus, once again, is on accused to rebut the same. (Section 22 of PMLA)

  1. Punishment under PMLA

Section 4 of PMLA prescribes the punishment for Money-Laundering as under:

                        Rigorous Imprisonment for a term

            ◦          which shall not be less than 3 years, but

            ◦          which may extend to 7 years/10 years, and

            ◦          shall also be liable to fine.

A notable feature is that there is no upper limit on the fine that may be imposed for an offence under the PMLA. The obvious intent is for the fine imposed to be commensurate to the nature and extent of offence committed and the money laundered.

  1. Conclusion

Money laundering poses a serious threat not only to the financial systems of countries, but also to their integrity and sovereignty. To obviate such threats, certain legislations including PMLA, have been enacted. The above analysis of the PMLA manifests that the Act, although extremely well intentioned, compromises on the fundamental principles of natural justice, fair trial and due-process. In its enthusiasm to fight black money, the Act transgresses upon basic rights and liberties. Some of the provisions under the Act are legally and jurisprudentially unsound and tenuous and may not pass constitutional muster. Since the Act is fairly new, it is expected that the Hon’ble Courts would interpret/strike/read-down these provisions in such a manner, so as to make the Act less prone to arbitrary exercise of power and ensure that its operation is constitutionally compatible.

[1] This article has been co-authored by Anirban Bhattacharya, Partner & Bharat Chugh, Counsel at Luthra and Luthra Law Offices, New Delhi. (bharat.law06@gmail.com) The views and opinions expressed in this article are those of the authors and do not necessarily reflect the views of the Firm.

[2] http://www.investopedia.com/terms/m/moneylaundering.asp

[3] FAQ on Money Laundering Act, Enforcement Directorate, Government of India

http://www.enforcementdirectorate.gov.in/faqs_on_pmla.pdf

[4] Chahagan Chandrakant Bhujbal v. Union of India, 2016 SCC OnLine Bom 938.

[5] Section 44 of the PMLA.

[6] If the proceeds of crime involved in money-laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words “which may extend to seven years”, the words “which may extend to ten years” had been substituted. Section 4 – proviso.

[7] M/s. Mahanivesh Oils & Foods Pvt. Ltd. v. Directorate of Enforcement – 2016 SCC OnLine Del 475

[8] Section 50(2) and 50(3) of the PMLA. The person summoned is bound to attend and state the truth upon any subject respecting which they are examined or make statements and produce such documents as may be required. These proceedings are deemed to be judicial proceeding within the meaning of Section 193 and 228 of the IPC. The proceedings relating to perjury/contempt of court apply with respect to these proceedings.

[9] Chahagan Chandrakant Bhujbal v. Union of India, 2016 SCC OnLine Bom 938.

[10] Section 44 of the PMLA.

Criminal Justice System · Uncategorized

Role of a Magistrate in a Criminal Investigation

Authored by Bharat Chugh[1]

INTRODUCTION

A young bank official named Joseph is arrested by two policemen one fine morning, without even being informed why. Joseph is outraged. Till his death, Joseph does not get to know what is he being tried for. Joseph is the protagonist of Franz Kafka’s seminal work ‘The Trial’, which is the story of Joseph’s case, his trial and tribulations with : the invisible Law, absent judge, opaque court processes, police excesses and the high-handedness of our criminal justice system. He dies a year later at the hands of the very policemen who had arrested him, in a striking finale of how the system consumes him. Like all fiction, the story is a lie, but one that says a lot of truth about our criminal justice administration, or at any rate, its prevailing stereotype, which has a definitive impress of truth.

Enter G, a 6-year old girl taken to a field, enticed with sweets, and then raped; her delicate face smashed beyond recognition, having been bludgeoned to death by bricks. Her little feet chopped-off from right above her ankles. You see, she was wearing silver anklets which wouldn’t come-off otherwise. The case was based on circumstantial evidence. X was acquitted by courts – on all counts, primarily on account of : grave lapses by the investigative/prosecution agencies, non-examination of material witnesses and obliteration of vital evidence. The sheer agony of the court is palpable in the judgment[2].

Joseph was arbitrarily arrested, falsely prosecuted and ultimately loses his life, while the court remains oblivious. Conversely, in G’s case, the accused who brutally cut short her life, went scot free on account of glaring omissions in the investigation. Irregularities which could have been nipped in the very bud by a more involved, responsive & pro-active magistracy.  In both these cases, it is not Joseph or X who is at trial, it is ‘us’.

This paper makes a case for a more pro-active & responsive magistracy. It is an endeavour to highlight the areas in which magistrates, as the protectors of rights of people, can make meaningful interventions during investigation, with a view to protect liberty and also to ensure an effective investigation.  An attempt would be made to analyse the relevant statutory provisions and case law on the subject, and also to draw comparative insights from the conception and role of a Magistrate in the french criminal justice system. 

 

Magisterial Vigil during Investigation.

In chronological order, the role of magistrate in investigation can be understood in terms of these five stages :

Stage – I –     Soon after the registration of FIR

Stage – II –   In cases where the arrest is effected by the Investigating officer, on his production before the court and while deciding the question of the validity of arrest and need for further custody – Judicial or Police.

Stage – III- Magisterial interventions while deciding misc. applications for recording of statement(s) u/s 164 of the Cr.P.C, test identification parades, etc.

Stage – IV – Monitoring of investigation and Comparison with French Model.

Stage – V – Further investigation, post-filing of police report u/s 173 of the Cr.P.C

 

Stage – I – Soon after the Registration of FIR 

Criminal justice Administration is set into motion with the receipt of information with respect to the commission of a cognizable offence[3]. Section 157 mandates the sending of a report to this effect to the area magistrate forthwith, to bring the matter to his scrutiny. This is a safeguard meant to prevent police excess, embellishments, false prosecutions and non-investigation at a crucial stage. A copy of the FIR (often termed ‘occurrence report’) is to be brought to the seisin of the magistrate as soon as possible, and any delay can adversely affect the prosecution case at trial, if not explained adequately. In heinous cases, a copy of the FIR alongwith an endorsement is dispatched via a special messenger to the area magistrate or duty magistrate. Delhi High Court Rules[4] require the magistrate to make an endorsement on the copy of the FIR regarding date/time and place of receipt. The Delhi High Court recently in Rafiq[5] has directed magistrates to mention the aforesaid details & sign such copy of the FIR legibly, forthwith on its receipt, so that the time of registration of FIR can be ascertained with exactitude.

 

Stage II – Production of the Accused before the court for the first time.

“Eternal Vigilance, is the price of liberty….” [6]

 

Law of Arrest

Arrest leads to deprivation of liberty and, therefore, has great ramifications for the person arrested. Any denial of personal liberty has to be through a due process[7]. A process that is non-arbitrary, just, fair and reasonable.No arrest shall be made, merely because it is lawful for the police officers to do so and each arrest has to be justified on ground of its imperative need[8]  and reasons are to be recorded in writing by the police officer effecting the arrest. According to the latest amendments in the CrPC, in cases covered u/s 41(1)(b) of the CrPC, i.e where the case relates to offence punishable with imprisonment of 7 years or less, arrest can be made by the police only on satisfaction (recorded in writing) to the effect that, the arrest is imperative for :

✔         prevention of further offences;

✔         proper investigation of the offence;

✔         prevention of tampering or disappearance of evidence;

✔         prevention of any undue influence/threat to the complainant or witnesses;

✔         ensuring his presence in the court;

 

The requirement of recording of reasons is expected to transcend the essentially subjective decision of arrest, to greater objectivity and to rule out arbitrary arrests, made with a view to wreak vendetta.[9] The Magistrate is a bulwark against unnecessary detention and abuse of power and process.[10]

 

The recording of these reasons, therefore, is a condition precedent for arrest.

 

Magisterial check on police powers of arrest.

The sufficiency of reasons for arrest recorded by the police officer is to be examined by  magistrates and not to be accepted at the mere ipse dixit of the police. After examining the validity of the arrest, the next point of inquiry is : whether there are grounds to keep the accused in detention or whether he can be released on bail, or otherwise discharged. The Supreme Court recently in Arnesh Kumar v. State of Bihar [11] has ruled that decision to detain & remand is not a mechanical act and a remand order has to be a reasoned order and should reflect due application of mind. Mere mechanical reproduction of above elements in remand application is also to be deprecated. These conditions have to be justified in the factual matrix of each case.  The fact that 76 % of the prisoners in Tihar Jail[12] are undertrials is evidence of a rather trigger-happy (or rather custody-happy) magistracy. Magistrates, to borrow the expression of Lord Atkin, ought to avoid being more executive-minded than the executive[13] and consider the question of bail/release by special order on the first production suo motu.

The anxiety as to participation in investigation by the accused is allayed by Section 41A of the CrPC, which provides for service of a notice on the accused by the Investigating Officer (in short ‘IO’) seeking participation in investigation and the necessary information from him. If the accused does not comply with the notice, he can be arrested, after recording the factum of his non cooperation in writing.

 

Safeguards relating to arrest

The magistrate is also under an obligation to peruse the Arrest Memo/Medical examination report of the accused (to rule out cases of police torture) as well as the victim (to preserve crucial medical evidence).[14] It is also incumbent on the Magistrate to ensure production of the accused before itself within 24 hours of arrest[15] and communication of information to relatives/friends about his arrest and compliance of the detailed guidelines laid down by the Supreme Court in D.K.Basu (supra). The Magistrate is to also ensure that the copy of the FIR is uploaded on the internet, forthwith, except of course, in cases where the matter is sensitive in nature, or issues of privacy are involved.[16]

 

Importance of Case Diary

Case diary is an effective instrument for the magistrate to keep a tab on the propriety of an investigation. The Supreme Court has repeatedly reiterated that the case diary should be maintained with scrupulous completeness and efficiency, since it is an extremely important document.[17] When a person arrested is produced before a magistrate for remand, the magistrate has to : peruse and scrutinise copies of FIR/Case Diary ‘Zimnis’, which ought to be in the form of a volume, duly paginated[18] and contain statements of the witnesses recorded u/s 161 of the CrPC[19], and also to ensure that the same are in chronology and reflect the progress of investigation. The Delhi High Court Rules[20] make it incumbent upon the Magistrate to record reasons for the grant of remand and to sign and date every page of the case diaries or copies thereof as a token of his having seen them. This rules out any fabrication, embellishment or interpolation of case diary at a later stage.

 

Audi Alteram Partem

Even god did not banish Adam and Eve from the heavens for their proverbial sin, before giving them an opportunity of making their case. The Magistrate can claim little immunity from this salutary principle of natural justice, wherein no man ought to be condemned without hearing him. The magistrate is duty bound to ensure Legal Representation for the accused at the very first production and to give him an effective opportunity of being heard. If the accused does not have a private counsel, Legal Aid from the state is to be ensured.[21] In Delhi – Remand Advocates have been appointed by the District Legal Services Authorities, in each court, to ensure fair representation for each accused.

 

Remand to Police Custody

Detention in police custody (permissible only within 15 days of the first remand), is usually disfavoured by law, which guards personal liberty zealously[22]. Courts are cognisant of the police’s predilection for disclosure statements & confessions(often extorted), instead of scientific and objective methods of investigation. Therefore, at the time of giving police remand, the magistrate ought to ensure and record the imperative need for police custody, and as to why it is is necessary for an effective investigation. The need for discovery of the weapon of the offence, fruits of crime, unearthing a larger conspiracy and facilitating the arrest of co-accused by disclosure are important considerations. However, mere verification of information given by the accused is not a ground for police custody. Similarly, the Magistrate should also ensure that remand is not taken merely to make a ‘pointing out’ memo. Such pointing-out memos, needless to state, have no statutory sanction or admissibility in a court of law. Only when there is a certain physicality to a discovered fact : that the same falls within the definition of Section 27 of the Evidence Act. Practise has shown that ‘Pointing out Memos’ are recorded with a view to circumvent the clear embargo on police confessions under Section 25 of the Evidence Act, and to permit a rather insidious inclusion of incriminating facts through a circuitous route.

One more thing that a Magistrate ought to be extremely cautious about is that in almost every criminal case – there is an (alleged) confession made to the police by the accused, however, practise shows that only seldom does the police file an application for the confession to be recorded in the presence of the Magistrate, after compliance of Section 164 of the CrPC. It defies reason as to when so many accused are penitent and inclined to confess, then why no confessions are being recorded through the Magistrates. This becomes crucial since the confession before the Police Officer is inadmissible in law and has to be totally excluded from consideration. However, such confessions are employed to IOs routinely to have atleast some semblance of a case against the accused and seek repeated Police Custody/Judicial Custody on that basis.  Expediency should never be allowed to supersede the legal principle and Magistrates ought not to blink at such a practise, as the very fact of there being a police confession in every case and judicial confession in none, reflects a pernicious, and a rather appalling state of affairs. In every case where the accused has allegedly confessed to the police, the magistrate ought to put a question to the IO as to what prevented him from getting the confession recorded before the court. This will keep the coerced confessions in check and encourage police officers to explore other avenues of investigation, which are more legitimate.

It is also important for the Magistrates to remember that Police custody ought not to be given at the drop of a hat and at the mere asking of the police. It is also advisable for the magistrate to scrupulously ensure medical examination of the accused before and after the grant of police custody, so as to rule out torture at the hands of the police. In many a cases the injuries on the person of the accused are suppressed in the Medical Certificates. In such cases, the Magistrate may order a fresh medical examination of the Accused by a team of doctors at a reputed and independent medical institution and entrust the safety of the accused personally to a higher police functionary.  It also needs to be remembered that the Accused has a right to interview with his legal advisor during this time. [23]

 

Release by special order in case of unjustified arrests

If the arrest seems unwarranted in the facts of the case, the magistrate can always disallow both judicial and police custody and release the person on bail (on surety or personal bonds), or even by way of a special order u/s 59 of the CrPC. A more active use of this provision is the need of the hour.

 

Immediate Succour to the (oft forgotten!) victims

The magistrate, when seized of the matter for the first time, ought to enquire about the status of the victim of the crime and whether the victim needs immediate first aid or any other interim compensation. A recommendation in this regard can be made by the Magistrate concerned to the District Legal Services Authority[24]. DLSA shall go on to grant compensation in accordance with the Victim Compensation Scheme.

 

Special Provisions relating to juveniles. 

While dealing with juveniles, the court ought to proceed strictly in line with the principles of parens-patriae[25] & best interests of the child and zealously guard their welfare. Any offender under the age of 18 ought to be tried by the Juvenile Justice Board and is not to be exposed to the rigours of ordinary criminal law process.

Whenever a plea of juvenility is taken by an accused, the age determination enquiry has to be conducted by the court only, in accordance with Section 7A of the JJ Act and Rule 12 of the Delhi JJ Rules, 2009. Where, in the opinion of the Magistrate, the accused is patently(from the physical appearance or otherwise) below 18, the court shall immediately transfer the child to observation home and order production of the juvenile before the JJB concerned. In other cases, the inquiry has to be conducted by the court, and if the accused turns out to be a juvenile, he shall be ordered to be transferred to observation home the same day and if person has turned an adult on the date of such order, in that case, to a place of safety.

Contrary to popular misconceptions, an age inquiry, envisaged under the act, is a summary inquiry to be completed within 30 days[26] and not a full blown investigation or trial. Oral evidence need not be recorded to arrive at a finding. Lengthy examination/cross examinations are also out of the question, unless of course, a vexed question of fact arises. The input for such an inquiry may be prima face opinion on the basis of documents.[27]

Experience has shown that in many cases, investigating officers would deliberately state the age of the accused to be above 18 years in order to defeat the benevolent provisions of the Juvenile Justice Act. To counter this, the Delhi High Court[28] has directed that : in case of person arrested being within 18 to 21 years of age, the Investigating officer of the case  of the case has to mandatorily prepare an age memo and collect proof regarding the age of the accused, and court also has to conduct an age inquiry in such cases, if juvenility is pleaded.

STAGE – III –  Magisterial interventions while deciding applications for recording of statement u/s 164 of the Cr.P.C/Test Identification Parade, and the like.

While recording statements u/s 164 of the Cr.P.C

 Recording of Statements of the witnesses is a vital part of the investigation. This not only allows an investigator to come to a finding, but also captures the testimony of the witness, when the same is still fresh and unsullied. However, the code reflects a palpable distrust of police officers in the matter of impartial recording of statements.  Statements recorded by the Police Officers during investigation are inadmissible in evidence, except in limited cases where it can either be used as a Dying Declaration or only insofar as it leads to a recovery. [29] These statements, however, can be used for contradiction and cross examination of the prosecution witnesses, at the time of trial.

 In India, the statement u/s 164 of the CrPC is recorded by the same Magistrate who goes on to conduct inquiry or trial, or his link Magistrate (In Delhi). In contrast to this, in the French system, the statements of the witnesses are recorded by an ‘Examining Magistrate’, a judge who carries out investigation and also arranges prosecutions.   The conception of a Magistrate under the French System will be dealt in greater details in the following paras.

Coming back – Under the present code, Section 164 allows recording of statement of witnesses & confessions by the magistrate. The statement of witnesses under this section is recorded on oath. The underlying objective is to preserve evidence, get an account of the testimony of the witness at the first instance (while it is still fresh), and to prevent retraction of testimony at a later stage. Another upside of a statement recorded u/s 164 of the Cr.P.C is that the same can be used for corroboration of the witness’s testimony at trial[30], thereby strengthening the veracity of prosecution case.

The safeguards in place to ensure the voluntariness of a confession/statement made before the magistrate are too well established to be reiterated. However, there are certain cases that deserve extra care and caution : for instance, in cases of rustic/illiterate and other vulnerable witnesses, the magistrate is duty bound to cull out the truth from the witness by asking the relevant questions.[31] In cases of child victims, the statement ought to be recorded in the special child witness/vulnerable witness room, away from the grim dynamics of the court. The magistrate can also take the aid of visual guides/diagrams and anatomically correct dolls with a view to ensure that the young witness, who might not be articulate or possess an adult vocabulary, is able to communicate and explain as to what happened. POCSO[32] also envisages the presence of a parent/support person with the victim at the time of recording of statement. It also permits the services of a special educator/interpreter/translator to aid the judge to understand and record the statement better.[33] Wherever possible, the magistrate must direct the IO to make the necessary arrangements for video recording of the statement. The expectation, therefore, is of utmost sensitivity and responsiveness while recording the testimony of a vulnerable witness, being alive to the trauma & stigmatic impact that the witness has undergone. [34]

 

Magistrate and Witness Protection.

Witnesses disappearing or turning hostile is a major stumbling block in successful criminal justice administration. The need for a specific witness protection legislation has been sorely felt for many years. Pursuant to the repeated directions of the High Court of Delhi with respect to a law to this effect, the Delhi State Government has notified the ‘Delhi Witness Protection Scheme, 2015’. Under the scheme, witnesses are categorised under three categories, depending on the threat perception. The Delhi State Legal Services Authority has been appointed as the competent authority for the implementation of the scheme. As per the scheme, the witness facing a threat is required to file an application for protection before the Ld.Member Secretary/Officer on Special Duty, DSLSA, which has to be routed through the Prosecutor. However, the Magistrate too, has a vital role to play in this. The Magistrates establishes a direct dialogue with the witness at various stages of the investigation; therefore, in appropriate cases, where there is sufficient cause to believe that a threat to the witness exists, there is nothing that prevents the Magistrate from referring the case to the DSLSA for consideration under the scheme, even sans a formal application. The witnesses’s oral request may be treated as an ‘application’. Considering the fact that most witness are laypersons, without adequate legal advise and knowledge as to their rights, this latitude will go a long way to serve the spirit of the scheme.

STAGE – IV – MONITORING OF INVESTIGATION

Apart from the magisterial interface with the investigation, as discussed above : The question as to how a case has to be investigated has been traditionally considered to be the sole prerogative of the investigating officer, premised on (the now defunct!) ideals of formalistic separation of powers. The dangers of unfettered power and insulating investigation from court’s vigil have already been demonstrated in the introductory paragraphs of this paper.

Such anachronistic notions of a passive magistrate have taken a thorough beating over the last couple of years and the definitive shift towards a more inquisitorial and participative system is clearly discernible. The argument that there is no provision in CrPC that allows the magistrate to monitor an investigation has been debunked by the Supreme Court conclusively in Sakiri Vasu[35] wherein such power has been read within Section 156(3) of the CrPC. It has been held that the power to direct investigation u/s 156(3) of the CrPC is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation. Therefore, in appropriate cases, the victim, complainant or a witness can approach the court seeking necessary directions to the police and supervision of investigation.

This reflects a definitive shift in the perception of a magistrate and recognition of his social function. The fact that he ought not to remain a mute spectator to the distortions and inadequacies of investigations, but make meaningful interventions. At the same time, the magistrate ought to desist from investigating himself, as in the system we have adopted in India, the same magistrate often conducts the trial. However, the magistrate is empowered to monitor the investigation, with a view to ensure that it is free and fair.

The exact import of word ‘monitoring of investigation’ is too circumstantial to be put in a straitjacket. Placing a narrow interpretation on the phrase will render it sterile. The phrase, therefore, ought to receive a social context or liberal interpretation. Illustrative cases, where the power to pass necessary directions may be used are :  to protect witnesses,  check disregard of vital evidence (which may get obliterated in course of time), non-examination of witnesses, deliberate shielding of some accused, or the investigating officer being interested in the case.  In such cases, a magistrate ought to push the envelope and actively monitor the investigation, while avoiding investigating himself, or directing investigation by a specific agency, with respect to which there is a specific embargo on the powers of the magistrate.

Monitoring of investigation by the magistrate is, therefore, of vital importance to protect the integrity of prosecution. In this regard, the Magistrate has to walk a tightrope and balance, on one side – the separation of executive from judiciary and the investigative autonomy of the police and on the other, the imperatives of a fair, free and impartial investigation and to ensure that the search for truth is not muddied by police lapses, whether innocent or blameworthy.

The Malimath Committee had recommended that a provision on the following lines be added immediately below Section 311 of the CrPC :

Power to issue directions regarding investigation

“Any court shall, at any stage of inquiry or trial under this Code, shall have such power to issue directions to the investigating officer to make further investigation or to direct the Supervisory Officer to take appropriate action for proper or adequate investigation so as to assist the Court in search for truth.”[36]

The above amendment remains elusive. Similarly, amendments to Section 482 of the CrPC so as to acknowledge ‘inherent powers in the trial court’ to pass any orders to do complete justice, have also remained on the paper. However, even dehors these amendments, there is nothing that prevents the court from reading this ‘pursuit of truth’ within the existing framework and more particularly, within Section 156(3) of the CrPC.

 

Comparison of the Indian Magistrate with the French System of Juge d’instructions’

Any analysis of the role of a Magistrate cannot be complete without a comparison with the  extraordinary role of a Magistrate in the French System. France’s investigating magistrates, or Juge d’instructions’, as they are called in french, have been a central pillar of the french criminal justice system for the last 200 years. Under the French System –  Investigation in respect of serious and complex offences is done under the supervision of an independent judicial officer, who for the purpose of discovering truth  : collects evidence for and against the accused and then decides whether the accused ought to be tried or not. In case of there being adequate material, the matter is forwarded for an adversarial trial by jury.

The institution of a juge dinstruction was made in the mid 19th Century. Juges are appointed by none other than the President himself – for fixed three-year terms (which are renewable) upon the recommendations of the Ministry of Justice. The juge d’instruction commences investigation on either a referral by the prosecutor or on a private complaint. Once the juge d’instruction’s is seized of the matter : even the accused gets right to all the documents and evidence collected during the investigation, and the right to be assisted by a counsel throughout the investigation. In contrast to this, in a strictly adversarial system – such as ours, the accused has little role to play in the investigation. The Investigating officers usually collect only incriminating material, totally disregarding exculpatory material. The accused does not get to participate in the investigation process, till the filing of the police report, and not even thereafter, strictly speaking, as even upto the stage of charge, he cannot adduce any evidence of his own to assist the court. He can only address submissions, punch holes, and expose intrinsic infirmities in the case of the prosecution. This results in the court having a totally one sided view of the case, atleast till the stage of charge. This also results in a warped investigation; as much of what the accused can possibly rely on, is lost. This is especially problematic having regard to the fact that : most accused persons have little investigative prowess compared to the state, and by dictates of logic – a negative (innocense) is always more difficult to be proved than a positive (guilt).

Coming back to the institution of Juge d’Intruction, To assist fact finding, juge has a wide range of powers available. He may issue search warrants and order seizure of property. He also may issue warrants requiring attendance of other witnesses; he may even require experts to testify. Infact, if there is a conflicting testimony, witnesses are confronted with each other and often with the accused. This exercise is not done, in an adversarial system, till the recording and appreciation of evidence, which is usually- years after the actual occurrence and when the recollection of the incident is allowed to be muddied.

The evidence collected and the testimony of witnesses recorded – make up what is known as a ‘dossier of a case’, which serves as a guide for the juge in the preliminary hearing in the court. It is also made available to the defence, so that the element of surprise, so prevalent in common-law trials, is eliminated from the main hearing.  It is on the strength of this file that the juge d’instruction bases his decision as to whether to commit a case to trial. The trial is conducted by another judge or the jury, which allows a fresh set of eyes to evaluate the evidence collected.

It will be naive to suggest that the institution of examining magistrates is devoid of imperfections. An inquisitorial system is not at all infallible. An apt illustration will be – Albert Camus’ famous work – ‘The Stranger’, where an examining magistrate allows extremely prejudicial past character evidence (which ought to have been excluded) and societal retribution to creep into the trial against the defendant. Where : in a trial for Murder of an assailant, evidence was allowed to show that the defendant did not believe in god; Evidence was also allowed to the effect that the accused displayed a lack of emotion/grief at his mother’s funeral some months back. Strangely, this fact was allowed to be led in evidence to prove his guilt in a totally unrelated murder case.

One more opposition to the french model is that : there is no constitutional right of habeas corpus in France. Investigating magistrates have a right to keep suspects in detention for extended periods of time without trial.

It is also argued that the ‘examining magistrate’ system is also less effective in ordinary crimes. It is slower and sometimes chokes the system; it is relatively more opaque and the concentration of power in one magistrate sometimes leads to arbitrariness in exercise thereof.

Having said this, the Inquisitorial system has certain undeniable advantages. It can be used to avoiding misunderstandings at an earlier stage in the case. In addition to this, in an inquisitorial system – ‘truth seeking’ is the fundamental value, and the very ‘end’ of the system. This is contrast to the Adversarial system, where by competing to prove one’s case to the judge – parties are encouraged to win, not uncover the truth. This can lead to unnecessary complications during the trial and more technical objections. Truth seeking is lost somewhere in this dialectic clash, which is seldom played by the rules. Such a passive system, also ends up rewarding the better lawyer and not the more truthful case.

Relatively, Trial procedures in this non-adversary model are simpler, less technical, and less lawyer dominated than in the adversary model where a complex system of evidentiary and procedural rules governs the parties’ judicial duel.[37]

It is undeniable that the move towards a more pro-active and participative magistracy, on the lines of the examining magistrate is the need of the hour. Incidents of transgression of power will not be common-place, and in any event, a magistrate can be credited with greater objectivity than the average investigating officer. The argument of possibility of bias creeping in is not very convincing as bias can never be completely ruled out as long as investigation is done by any human agency. However, a judge’s very training gives him atleast some amount of transcendence and objectivity; although – aberrations are always there.

Therefore, on a juxtaposition of the two systems. Both have certain advantages and concerns. But on a fair analysis – the trade of should not be difficult; The benefits of a more inquisitorial approach far outweigh the pitfalls. Across the world – there is a move towards more involved and less passive legal systems. Within the Indian Legal Framework – these benefits can be achieved with the expansion, or atleast better use of Section 164 of the CrPC – wherein statements of more material witnesses are recorded before the Magistrate during investigation, more proactive use of S.156(3), inclusion of powers to pass specific directions to the Investigating Officers, with a view to aid the search of truth – as recommended by the Malimath Committee and saving of inherent powers with the trial court. This paper is an attempt to demonstrate that all this can be achieved, atleast in a fair measure, within the existing judicial framework.

Stage – V – Further investigation after filing of police report

Magisterial vigil does not terminate on the filing of the police report on the conclusion of the investigation and the court is not bound to accept the results of an investigation conducted by the police. In the case the police concludes that no case is made out against the accused, the Magistrate has to issue a notice to the informed/victim and hear him out. [38] After hearing the informant, the court can, notwithstanding the closure report, choose to proceed with the matter, as a case based on police report or even a prior complaint.

The third option available is ordering further investigation. Section 173(8) of the CrPC expressly lays down such a course of action. However, the section does not enlist considerations that will govern the exercise of such power. Illustrative cases where further investigation may be ordered are : where the police acts in a partisan manner to shield the real culprits and the investigation has not been done in a proper and objective manner but is tainted[39], non-examination of crucial witnesses, clearing of doubts and to substantiate the prosecution case.  To conduct fair, proper and an unquestionable investigation is the obligation of the investigation agency and the court in its supervisory capacity is required to ensure the same. [40]

Having said that, further investigation is to be distinguished from re-investigation or a de-novo investigation, which is not permissible. In cases where vital evidence has been disregarded by the police, the court can order further investigation into that aspect. The result of the further investigation is called a ‘supplementary report’ and can supplement the primary police report, already on record.[41]  The earlier investigation is not wiped-off from the record and the subsequent investigation only supplements the earlier investigation.

The magistrate also cannot order a further investigation by a different agency (agency other than the original investigating agency) either, as that will amount to re-investigation. Only the higher courts have the power to order reinvestigation by a different agency, such as the CBI.[42] Having said that, in such cases, the Magistrate is not powerless, if the magistrate suspects foul play in investigation, he can always pass orders for senior officers to supervise the investigation personally and file periodic compliance reports, in a process akin to a continuing mandamus.

The power of further investigation, it must be remembered, can be exercised even suo motu[43], and even after taking of cognizance[44] – to ensure that no crucial aspect of the case goes investigated and subsequent facts are brought to the fore.

 

Conclusion

“Trial judge as the kingpin in administration of Justice..” [45]

It is apparent that ample powers are vested in the magistrate to check arbitrary arrests, police excesses & to facilitate a more incisive probe into the discovery of truth, at various stages of an investigation, and even after filing of the police report. Never should a judge find himself in a situation where he has to make a grudging confession of acquitting a known culprit due to lack of evidence or investigative lapses. A conscientious magistrate’s Dharma also lies in the deft use of these provisions, in order to uphold constitutional values and the Rule of law, and in this he ought not to hesitate in recalibrating the scales of justice and even protectively discriminating to correct systemic asymmetries & disadvantages towards the weaker accused, witness or the complainant. Existing provisions can be interpreted creatively. Cues can be taken from the magisterial role, as envisaged in other jurisdictions. No doubt, there would be questions raised over the magistrate having descended into the arena. But the magistrate ought to not to be unnecessarily wary of such aspersions; or be a worshipper of dead habit, convention, or the complacency of the status quo, for no ideals, howsoever hallowed, can be allowed to impede the voyage of discovery, an affirmative duty for the search of truth.

[1]                Advocate Supreme Court of India, formerly : Civil Judge/Metropolitan Magistrate, Delhi

[2]                 State of Gujarat v. Kishanbhai (2014) 5 SCC 108

[3]                 Section 154 of the Cr.P.C

[4]                Delhi High Court Rules – Vol III, Chapter 11, Part A, Rule 4.

[5]                 Rafiq v. State (Crl. A. No. 1505/2013 – Date of Decision 23.07.2015)

[6]                Attributed to Thomas Jefferson.

[7]                 Article 21 of the Constitution. Maneka Gandhi v. Union of India, (1978) 1 SCC 248

[8]                 D.K.Basu v. State of West Bengal (1997) 6 SCC 642, Joginder Kumar v. State of U.P (1994) 4 SCC 260.                       Also see Code of Criminal Procedure (Amendment) Act, 2008.

[9]                According to Third National Police Commission – 60 % of the arrests made were unjustified and unnecessary arrests account for 43 % of the expenditure in jails (Joginder Kumar v. State of U.P – supra)

[10]               Fair Trial Manual : A Handbook for Judges and Magistrates by CHRI. (http://www.humanrightsinitiative.org/publications/police/fair_trial_manual.pdf)

[11]              2014 8 SCC 273

[12]               As on 31.12.2015, by a report of the Tihar Prison (available at : http://www.delhi.gov.in/wps/wcm/connect/lib_centraljail/Central+Jail/Home/Prisoner+Profile)

[13]           Lord Atkin’s dissenting judgment in Liversidge v. Anderson [1941] UKHL 1

[14]               Section 53/53A/164A of the CrPC

[15]               Section 57 of the CrPC & Article 22 of the Constitution of India

[16]          Court on it’s own motion versus State (Writ Petition (Crl.) No. 468 of 2010)

[17]               Bhagwant Singh v Commissioner of Police, Delhi, (1983) CriLJ 1081.

[18]               Section 172 (1-B) of the CrPC

[19]               Section 172(1-A) of the CrPC

[20]               Delhi High Court Rules – Vol III, Chapter 11, Part B, Rule 3.

[21]               Md. Ajmal Amir Kasab v. State of Maharashtra (2012) 9 SCC 1. The Hon’ble Supreme Court has also held     that any lapse on this count by the magistrate may entail departmental action.

[22]               CBI v. Anupam J. Kulkarni – AIR 1992 SC 1768

[23]               Adjudication in trial courts : A Benchbook for Judicial Officers, by N.R.Madhava Menon, David                   Annoussamy & D K Sampath.

[24]               Section 357A(6) of the CrPC

[25]              Black’s Law Dictionary, Sixth Edition, p. 1114 – Parens patriae. “Parens patriae,” literally “parent of the country,” refers traditionally to role of state as sovereign and guardian of persons under legal disability, such as juveniles or the insane, State of W.Va. v. Chas. Pfizer & Co., C.A.N.Y., 440 F.2d 1079, 1089, and in child custody determinations, when acting on behalf of the state to protect the interests of the child.  It is the principle that the state must care for those who cannot take care of themselves, such as minors who lack proper care and custody from their parents

[26]               Rule 12 of the Delhi JJA Rules, 2009

[27]               Ashwani Kumar Saxena v. State of M.P (2012) 9 SCC 750.

[28]               Court on it’s own motion versus  Dept of Women and Child Development &Ors – WP(c) 8889 of 2011,        Date of Decision – 11.05.2012

[29]          Section 162 of the CrPC.

[30]               Section 157 of the Evidence Act

[31]               R.Shaji v. State of Kerala (2013) 14 SCC 266

[32]               Section 25 of the POCSO, Section 164(5A) in cases of women victims of sexual assault.

[33]               In such cases the video recording of the statement is mandatory as per the mandate of Section 164(5A)(a) 2nd proviso

[34]               See Exhaustive guidelines for various stakeholders with respect to vulnerable witnesses, laid down by the High Court in Virender v. State of NCT of Delhi (Crl. A.No. 121/2008 – Date of Decision : 29.09.2009)

[35]              Sakiri Vasu v. State of U.P (2008) 2 SCC 409. (Note on position post Sakiri Vasu -The correctness of Sakiri Vasu was subsequently questioned by the Supreme Court in Nirmal Singh Kahlon (2009) 1 SCC 441 by saying “correctness whereof is open to question”, however since the matter was not referred to a larger bench for reconsideration and no reasons given as to why Sakiri Vasu was not acceptable – Sakiri Vasu still holds field and has since been endorsed by a catena of judgments including T.C.Thangaraj vs V.Engammal & Ors (2011) 12 SCC 328.

[36]          Malimath Committee on Reforms in Criminal Justice System, 2003. Available at : http://www.mha.nic.in/hindi/sites/upload_files/mhahindi/files/pdf/criminal_justice_system.pdf

[37] Edward A. Tomlinson, Nonadversarial Justice: the French Experience, 42 Md. L. Rev. 131 (1983)

[38] Bhagwant Singh v. Commissioner of Police and Another, AIR (1985) SC 1285; Gangadhar Janardan Mhatre v. State of Maharashtra and Others (2004 7 SCC 768)

[39]               Kashmeri Devi vs. Delhi Administration and others, AIR 1988 SC 1323.

[40]              Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762.

[41]               Vinay Tyagi (supra)

[42]          Chandra Babu versus State, (2015) 8 SCC 774.

[43]               Vinay Tyagi (supra)

[44]              Kishan Lal v. Dharmendra Bafna, (2009) 7 SCC 685 at page 693

[45]              All India Judges Association v. Union of India (1992) 1 SCC 119

Criminal Justice System

Supreme Court on Possession of fruits of crime in murder case

A decision on inference arising from possession of fruits of crime – soon after the occurence, in absence of reasonable explanation may lead to inference of complicity, also a preposition on Life Sentence means incarceration till last breathe and not 14 or 20 years.

The possession of the fruits of the crime recently after it has been committed, affords a strong and reasonable ground for the presumption that the party in whose possession they are found was the real offender, unless he can account for such possession in some way consistent with his innocence. It is founded on the obvious principle that if such possession had been lawfully acquired, that party would be able to give an account of the manner in which it was obtained. His unwillingness or inability to afford any reasonable explanation is regarded as amounting to strong, self inculpatory evidence. If the party gives a reasonable explanation as to how he obtained it, the courts will be justified in not drawing the presumption of guilt. The force of this rule of presumption depends upon the recency of the possession as related to the crime and that if the interval of time be considerable, the presumption is weakened and more especially if the goods are of such kind as in the ordinary course of such things frequently change hands. It is not possible to fix any precise period. This Court has drawn similar presumption of murder and robbery in series of decisions especially when the accused was found in possession of these incriminating articles and was not in a position to give any reasonable explanation. Earabhadrappa @ Krishnappa vs. State of Karnataka (1983) 2 SCC 330 was a case where the deceased Bachamma was throttled to death and the appellant was taken into custody and gold ornaments and other articles were recovered at his instance.

SC

Shri Bhagwan vs State Of Rajasthan on 10 May, 2001
Author: K Balakris,hnan
Bench: M B Shah, K Balakrishnan

CASE NO.:

Appeal (crl.) 242 of 2000

PETITIONER:

SHRI BHAGWAN

Vs.

RESPONDENT:

STATE OF RAJASTHAN

DATE OF JUDGMENT: 10/05/2001

BENCH:

M B Shah & K.G. Balakrishnan

JUDGMENT:

K.G. BALAKRISHNAN, J.

The facts in this criminal appeal disclose acts of unparalleled evil and barbarity as five persons of a family were battered to death without mercy by a young culprit aged about 20 years.

PW-17 Shiv Pratap, his wife, three daughters and aged parents were residing in a house at Bidasar. The marriage of the eldest daughter of Shiv Pratap was fixed to be held on 20.2.1994. In order to purchase some articles for the marriage, Shiv Pratap and his wife Bhanwari had left for Jaipur on 14th December, 1993. They came back to Bidasar from Jaipur on 17th December, 1993 at about 9.30 PM. On reaching the house, they found the outer door of the house open and the inside room was found bolted from within. PW-17 knocked at the door in vain and after sometime he scaled over the wall and gained entry into the room. He found his parents lying dead with multiple injuries. PW-17 and his wife then went to the room of their daughters. That room was found locked from outside. PW-17 broke open the lock and found dead bodies of his three daughters. Various blood-stained articles were found strewn in the room. PW-17 used to peg the bag containing gold and silver jewellery of the shop. That bag was also found missing. Shocked at the incident, they made a hue and cry. The brother of PW-17 who was staying nearby came to the house. Some neighbours also came there in the meanwhile and saw the ghastly incident. By about 9.45 P.M., PW-17 gave the P-8 statement before the Station House Officer of Police Station Chhapar ( PW-23). PW-23 registered a case and immediately visited the place of occurrence. He recorded the statement of Bhanwari (PW-1); Murlidhar (PW-2) and also the further statement of Shiv Pratap (PW-17). On the next day, he took various photographs and conducted inquest of the dead bodies of all the five deceased persons. The various articles, including clothes found lying in the house, were recovered. Many of these articles were found blood-stained.

In his statement, PW-2, Murlidhar mentioned that on the evening of 14th December, 1993, he had seen the deceased Jora Ram, the father of Shiv Pratap, at about 6.00 PM going to his house after closing the shop and the appellant, Shri Bhagwan was also accompanying him. PW-2 further stated that Shri Bhagwan was known to him previously as he had worked in the shop of Shiv Pratap for about 8 to 10 months. He also stated that he saw the appellant and Jora Ram entering the house of Shiv Pratap. Based on this information, appellant Shri Bhagwan was arrested on the night of 18th December, 1993 and the investigation of the case was taken over by PW-24 . He too visited the place of occurrence and collected various articles from there. A broken iron ‘Kunta’, a wooden Pestle and an iron scissors were also recovered from the scene of occurrence and all these articles were stained with blood. The appellant was interrogated and based on his statement, an axe was recovered from the water tank located on the terrace of the house of Shiv Pratap. During the course of further investigation, the appellant gave a statement regarding the place of concealment of golden jewellery and other articles taken away from the house of Shiv Pratap. Appellant’s brother-in-law (Bahnoi) Ramu Ram was a resident of Sardar Shahar. The appellant led the police party to the house of Ramu Ram and from his house a bag containing jewellery and other articles were seized under Ex. P-83. These articles included one gold finger-ring, gold ear tops and nose tops, white pearls, etc. All these articles were later identified by Shiv Pratap as gold ornaments belonging to his mother and daughters. From the house of Ramu Ram, a small tobacco box was recovered which contained 12 copper pieces and an envelope of ‘Kumkum Patri’ addressed to Shiv Pratap, Bidasar, and the sender’s name was one Manak Chand Soni (PW-10). Manak Chand was examined and he deposed that this invitation had been sent by him to Shiv Pratap on the occasion of the marriage of his daughter which was on 10th December, 1993.

Appellant, Shri Bhagwan also gave a statement to the effect that while he was travelling in a bus, he had thrown away the shirt worn by him at the time of occurrence, near a place three kilometers away from Sujangarh. The appellant led the police party to that place and the said shirt was recovered from the bushes near the place where the appellant had stated to have thrown the same. This shirt was blood-stained and it bore the label of 786 J.K. Tailors, Subzi Mandi, S.R.D.R. On the shirt, number 427 was found marked. The investigation officer later visited the said shop of J.K. Tailors and questioned the owner of the shop, Zafar Hussain (PW-18). PW-18 stated that he had stitched the shirt for the appellant and he had also recorded the name of the appellant and the measurements in the register. Exh. P-48 is the register maintained by him and as against serial number 427, the name of appellant, Shri Bhagwan Soni was found written.

The appellant was tried for offences under Section 302 and 392 read with Section 397 IPC and was found guilty. For the offences under Section 392 and 397 IPC, he was sentenced to undergo R.I. for seven years and to pay a fine of Rs.200/-. For the offence under Section 302 IPC, the appellant was sentenced to death and to pay a fine of Rs.200/- by the Sessions Judge. This was challenged in appeal and the Division Bench of the Rajasthan High Court confirmed the conviction and sentence of the appellant.

On behalf of the appellant, Dr. Shyamla Pappu, learned Senior Advocate (A.C.) very ably argued the case. It was pointed out by her that the evidence adduced by the prosecution was not sufficient to find the guilt for the offences he had been charged with. It was contended that various incriminating circumstances relied on by the court are not sufficient to draw an inference of guilt of the appellant and the chain of circumstances was not cogently and firmly established and these circumstances have no definite tendency to unerringly point the guilt of the accused. It was also contended that in a case of circumstantial evidence, the chain of circumstances should be so complete that there is no escape from the conclusion that in all probability the crime was committed by the accused and none else.

The counsel for the appellant also argued that in the Exh. P-8 Statement given by PW-17 Shiv Pratap, the name of the appellant was not mentioned, though he was accompanied by PW-2 Murlidhar, who is alleged to have seen the appellant along with one of the deceased prior to the incident. It may be noted that PW-17 must have been under severe psychic trauma at the time of giving the Exh.P-8 Statement before the police and naturally he did not mention the name of the appellant to PW- 23 who recorded his statement. PW-23 himself recorded the statement of PW-2 immediately thereafter and in that statement the name of the appellant was mentioned as the person last seen with one of the deceased. Another contention urged by appellant’s counsel is that in the instant case series of injuries had been caused to the deceased persons and sticks, wooden pestle, broken handle of axe, scissors and ‘kunta’ were alleged to have been used and it was argued that from these facts, it is possibe that there must have been more than one assailant and therefore, the prosecution suppressed the real facts and the appellant is entitled to the benefit of doubt. All the articles allegedly used by appellant as weapons of offence are things which might have been collected from the house itself and according to the prosecution, the appellant was seen with deceased Jora Ram in the evening and in all probability he must have spent the night in the house of Shiv Pratap. The incident might have happened in the dead of the night and that being a winter season, it is quite possible that attention of the neighbours might not have been attracted. The fact that household items were used as weapons of offence rules out the possibility of the presence of any outsider. Moreover, it is also not possible to infer anything from the nature of injuries as to how many assailants were involved. It is quite reasonable and probable that one assailant alone can cause so much of injuries especially during the night when the victims might have been in deep slumber.

The counsel for the appellant also raised serious doubts regarding the various recoveries effected at the instance of the appellant, but we do not find any reason to disbelieve the evidence adduced by the prosecution as there is further corroborative evidence to support the recoveries. The articles were recovered from the close relative of the appellant and they were identified by PW-17. It is also established beyond doubt that the recovered blood stained shirt belonged to the appellant.

Having regard to the various facts, we do not find any reason to suspect the guilt of the accused as it is proved that the appellant was seen with one of the deceased Jora Ram in the evening of 14th November, 1993 and the appellant had an acquaintance with the family members of the deceased as he had already worked as an apprentice in the shop of PW-17 to learn the trade of goldsmithy. PW-17 deposed that the appellant was sent away from the shop as he had committed some minor gold thefts.

It is also relevant to note that the appellant had some injuries at the time of his arrest. These injuries are of minor nature, but even then the appellant could not give any satisfactory explanation with regard thereto. The recovery of various articles at the instance of the appellant, that too immediately after the incident, goes a long way in proving the guilt of the appellant.

The possession of the fruits of the crime recently after it has been committed, affords a strong and reasonable ground for the presumption that the party in whose possession they are found was the real offender, unless he can account for such possession in some way consistent with his innocence. It is founded on the obvious principle that if such possession had been lawfully acquired, that party would be able to give an account of the manner in which it was obtained. His unwillingness or inability to afford any reasonable explanation is regarded as amounting to strong, self inculpatory evidence. If the party gives a reasonable explanation as to how he obtained it, the courts will be justified in not drawing the presumption of guilt. The force of this rule of presumption depends upon the recency of the possession as related to the crime and that if the interval of time be considerable, the presumption is weakened and more especially if the goods are of such kind as in the ordinary course of such things frequently change hands. It is not possible to fix any precise period. This Court has drawn similar presumption of murder and robbery in series of decisions especially when the accused was found in possession of these incriminating articles and was not in a position to give any reasonable explanation. Earabhadrappa @ Krishnappa vs. State of Karnataka (1983) 2 SCC 330 was a case where the deceased Bachamma was throttled to death and the appellant was taken into custody and gold ornaments and other articles were recovered at his instance. This Court observed:

This is a case where murder and robbery are proved to have been integral parts of one and the same transaction and therefore the presumption arising under Illustration (a) to Section 114 of the Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her gold ornaments which form part of the same transaction.

In another case reported in (1997) 10 SCC 130 [Mukund vs. State of M.P.], the prosecution case was that in the night intervening 17.1.1994 and 18.1.1994, the appellants trespassed into the residential house of one Anuj Prasad Dubey, committed murders of his wife and their two children and looted their ornaments and other valuable articles. On the next night, the appellants were arrested and interrogated. Pursuant to the statement made by one of the accused, gold and silver ornaments and other articles were recovered. This court, relying on an earlier decision reported in Gulab Chand vs. State of M.P. (1995) 3 SCC 574, observed :

“If in a given case — as the present one — the prosecution can successfully prove that the offences of robbery and murder were committed in one and the same transaction and soon thereafter the stolen properties were recovered, a court may legitimately draw a presumption not only of the fact that the person in whose possession the stolen articles were found committed the robbery but also that he committed the murder.”

In the instant case, the appellant could not give an explanation as to how he came into possession of various gold ornaments and other articles belonging to Shiv Pratap and the members of his family. The appellant also could not give any reasonable explanation how he sustained injuries on his body and how his shirt became blood-stained. In the facts and circumstances, it is a fit case where the presumption under Illustration (a) to Section 114 of the Evidence Act could be drawn that the appellant committed the murders and the robbery. The courts below have rightly held the appellant guilty of the offences charged against him.

As regards the question of sentence, the counsel for the appellant submitted that the appellant was a youngster aged 20 at the time of crime and ever since the imposition of death penalty on him he has been under devastating and degrading fear that is imposed on the condemned and that appellant must have been under intense mental suffering that is inevitably associated with confinement under sentence of death. It is submitted that these factors had been taken note of by this Court as relevant mitigating factors to commute the sentence of death to life imprisonment.

Of course, the nature of the crime committed by the appellant was so horrendous and exceptionally cruel and sadistic. However, we are inclined to take a lenient view having regard to the various facts and circumstances of the case. In dealing with criminal matters where death sentence is prescribed in law as the punishment for the crime, the courts are required to answer new challenges as the object has to be not only to protect the society at large, but impose appropriate sentence lest there should be a tendency to undermine the public confidence in the criminal justice delivery system.

In A. Devendran v. State of Tamil Nadu [(1997) 11 SCC 720], while considering the question of imposition of death penalty, this Court observed:- (in para 26)

Bearing in mind the ratio of the aforesaid cases it may be seen that since the evidence of an approver has been taken out of consideration the conviction of the appellant Devendran under Section 302 has been upheld on the basis of the evidence of PW2, PW5 and the recovery of the pistol which was used for the commission of murder from the house of the said Devendran as well as the recoveries of ornaments and other jewelleries belonging to the informant recovered from the house of Devendran on the basis of his statement, while in custody and those jewelleries being identified by PW4. The aforesaid evidence by no stretch of imagination brings the case in hand to be one of the rarest of rare cases where the extreme penalty of death can be awarded.

Similar is the position in the present case. The circumstantial evidence discussed above, even though held to be reliable for convicting the accused, we do not think it to be one of the rarest of rare cases warranting death sentence.

Hence, what would be the appropriate punishment?

Crimes, like the one before us, cannot be looked upon with equanimity because they tend to destroy ones faith in all that is good in life. A young man was given opportunity to learn gold-smithery. He was once sent away for alleged act of theft. Yet again, on the day of incident, he was permitted to accompany the deceased old man and as per the evidence, he accompanied the deceased in his house. The reward of that kindness is murder of old man and his wife alongwith three daughters including one whose marriage was fixed after two months. Hence, even though we reduce the death penalty, we think that punishment should be sufficient so as to have deterrent effect as well as no further chance to the accused for relapsing into the crime and becoming danger to the Society.

Section 57 IPC provides that in calculating fractions of terms of punishment, imprisonment for life is to be reckoned as equivalent to the imprisonment for twenty years. In our view, considering the heinous barbaric offence committed by the accused, in no set of circumstances accused should be released before completion of 20 years of imprisonment. This Court in Dalbir Singh and others v. State of Punjab [(1979) 3 SCC 745] considered the question that in case where sentence of death is reduced to life imprisonment, for how many years accused should be detained in prison. The Court in paragraph 14 held thus:- 14. The sentences of death in the present appeal are liable to be reduced to life imprisonment. We may add a footnote to the ruling in Rajendra Prasad case. Taking the cue from the English legislation on abolition, we may suggest that life imprisonment which strictly means imprisonment for the whole of the mans life, but in practice amounts to incarceration for a period between 10 and 14 years may, at the option of the convicting court, be subject to the condition that the sentence of imprisonment shall last as long as life lasts where there are exceptional indications of murderous recidivism and the community cannot run the risk of the convict being at large. This takes care of judicial apprehensions that unless physically liquidated the culprit may at some remote time repeat murder.

(Emphasis added)

In case of Subash Chander v. Krishan Lal & Ors. [2001 (3) SCALE 130], the said principle is followed by this Court and it was ordered that accused shall be incarcerated for the remainder of his life and that he shall not be let loose upon the society as he is a potential danger.

Question may arisewhether in view of the provision of Section 433(b) read with Section 433-A Cr.P.C. accused should be released on completion of 14 years of imprisonment? For this purpose, we would make it clear that under Section 433 (b) enables the appropriate Government to commute the sentence of imprisonment for life, for imprisonment of a term not exceeding 14 years or for fine. Under Section 433-A, there is an embargo on that power by providing that where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided under the law, such person is not to be released from prison unless he had served at least fourteen years of imprisonment. This question is considered by various decisions rendered by this Court and by the Privy Council and it has been reiterated that a sentence of imprisonment for life imposed prima facie be treated as imprisonment for the whole of the remaining period of the convicted persons natural life. It is also established law that rules framed under the Prisons Act do not substitute a lesser sentence for a sentence of transportation for life. This Court in State of Madhya Pradesh v. Ratan Singh and others [(1976) 3 SCC 470] in paragraphs 4 and 9 held thus:-

4. As regards the first point, namely, that the prisoner could be released automatically on the expiry of 20 years under the Punjab Jail Manual or the Rules framed under the Prisons Act, the matter is no longer res integra and stands concluded by a decision of this Court in Gopal Vinayak Godse v. State of Maharashtra [(1961) 3 SCR 440], where the Court, following a decision of the Privy Council in Pandit Kishori Lal v. King Emperor [(LR 72 IA 1 : AIR 1945 PC 64] observed as follows:

Under that section, a person transported for life or any other term before the enactment of the said section would be treated as a person sentenced to rigorous imprisonment for life or for the said term.

If so, the next question is whether there is any provision of law whereunder a sentence for life imprisonment, without any formal remission by appropriate Government can be automatically treated as one for a definite period. No such provision is found in the Indian Penal Code of Criminal Procedure or the Prisons Act.

* * * * *

A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted persons natural life.

The Court further observed thus:

But the Prisons Act does not confer on any authority a power to commute or remit sentences; it provides only for the regulation of prisons and for the treatment of prisoners confined therein. Section 59 of the Prisons Act confers a power on the State Government to make rules, inter alia, for rewards for good conduct. Therefore, the rules made under the Act should be construed within the scope of the ambit of the Act. . . . Under the said rules the orders of an appropriate Government under Section 401, Criminal Procedure Code, are a pre-requisite for a release. No other rule has been brought to our notice which confers an indefeasible right on a prisoner sentenced to transportation for life to an unconditional release on the expiry of a particular term including remissions. The rules under the Prisons Act do not substitute a lesser sentence for a sentence of transportation for life.

The question of remission is exclusively within the province of the appropriate Government; and in this case it is admitted that, though the appropriate Government made certain remissions under Section 401 of the Code of Criminal Procedure, it did not remit the entire sentence. We, therefore, hold that the petitioner has not yet acquired any right to release.

It is, therefore, manifest from the decision of this Court that the Rules framed under the Prisons Act or under the Jail Manual do not affect the total period which the prisoner has to suffer but merely amount to administrative instructions regarding the various remissions to be given to the prisoner from time to time in accordance with the rules. This Court further pointed out that the question of remission of the entire sentence or a part of it lies within the exclusive domain of the appropriate Government under Section 401 of the Code of Criminal Procedure and neither Section 57 of the Indian Penal Code nor any Rules or local Acts can stultify the effect of the sentence of life imprisonment given by the court under the Indian Penal Code. In other words, this Court has clearly held that a sentence for life would ensure till the lifetime of the accused as it is not possible to fix a particular period the prisoners death and remissions given under the Rules could not be regarded as a substitute for a sentence of transportation for life.

In Maru Ram v. Union of India [(1981) 1 SCC 107], Constitutional Bench of this Court reiterated the aforesaid position and observed that the inevitable conclusion is that since in Section 433-A we deal only with life sentences, remissions lead nowhere and cannot entitle a prisoner to release. Further, in Laxman Naskar (LIFE CONVICT) v. State of W.B. and another [(2000) 7 SCC 626], after referring to the decision of the case of Gopal Vinayak Godse v. State of Maharashtra [(1961) 3 SCR 440], the Court reiterated that sentence for imprisonment for life ordinarily means imprisonment for the whole of the remaining period of the convicted persons natural life; that a convict undergoing such sentence may earn remissions of his part of sentence under the Prison Rules but such remissions in the absence of an order of an appropriate Government remitting the entire balance of his sentence under this section does not entitle the convict to be released automatically before the full life term is served. It was observed that though under the relevant Rules a sentence for imprisonment for life is equated with the definite period of 20 years, there is no indefeasible right of such prisoner to be unconditionally released on the expiry of such particular term, including remissions and that is only for the purpose of working out the remissions that the said sentence is equated with definite period and not for any other purpose.

Therefore, in the interest of justice, we commute the death sentence imposed upon the appellant and direct that the appellant shall undergo the sentence of imprisonment for life. We further direct that the appellant shall not be released from the prison unless he had served out at least 20 years of imprisonment including the period already undergone by the appellant. As regards offences under Sections 392 & 397 IPC, we confirm the conviction of the appellant and no separate sentence is awarded.

With the above directions and modification in the sentence, the appeal is disposed of.

Criminal Justice System

Tukaram v. State of Maharashtra 1979 SC

Largely hailed as a rare example of judicial insensitivity to a rape victim/gender outrage – the judgment paved path for various amendments in rape related laws – especially those catering to situations on dominance where a person uses his official/superior position to obtain advantage (see S.376A to D) also introduced was S.114A which raised a rebuttable presumption of no consent’ on the ipse dixit of the girl and the burden to prove consent on the defence, in the fitness of things was introduced. 
Supreme Court of India
Tuka Ram And Anr vs State Of Maharashtra on 15 September, 1978
Equivalent citations: 1979 AIR 185, 1979 SCR (1) 810
Bench: Koshal, A.D.

PETITIONER:

TUKA RAM AND ANR.

Vs.

RESPONDENT:

STATE OF MAHARASHTRA

DATE OF JUDGMENT15/09/1978

BENCH:

KOSHAL, A.D.

BENCH:

KOSHAL, A.D.

SINGH, JASWANT

KAILASAM, P.S.

CITATION:

1979 AIR 185 1979 SCR (1) 810

1979 SCC (2) 143

ACT:

Indian Penal Code Sec. 375-Rape-What is the meaning of without consent-Obtaining consent by putting fear of death or hurt-Criminal trial-Onus is on prosecution to prove all the ingredients of an offence.

HEADNOTE:

The prosecution alleged that appellant No. 1, the Police Head Constable and appellant No. 2 Police Constable attached to Desai Gunj Police Station raped Mathura (P.W. 1) in the police station. Mathura’s parents died when she was a child and she was living with her brother, Gama. Both of them worked as labourers to earn a living. Mathura used to go to the house of Nunshi for work and during the course of her visits to that house she came in contact with Ashok who was the sister’s son of Nunshi. The contact developed into an intimacy so that Ashok and Mathura decided to become husband and wife.

On 26th of March, 1972 Gama lodged a report at the police station alleging that Mathura had been kidnapped by Nunshi, her husband Laxman and Ashok. The report was recorded by Head Constable Baburao, at whose instance all the three persons complained against as well as Mathura were brought to the police station at about 9 p.m. and the statements of Ashok and Mathura were recorded. By that time, it was 10.30 p.m. and Baburao asked all the persons to leave with a direction to Gama to bring a copy of the entry regarding the birth date of Mathura. After Baburao left Mathura, Nunshi and Gama and Ashok started to leave the police station. The appellants, however, asked Mathura to wait at the police station and told her companions to move out. The direction was complied with.

The case of the prosecution is that immediately thereafter Ganpat, appellant No. 1, took Mathura into a latrine raped her and thereafter dragged her to a Chhapri on the back side and raped her again. Thereafter, appellant No. 2 fondled with her private parts but could not rape her because he was in a highly intoxicated condition. Nunshi, Gama and Ashok who were waiting outside the police station for Mathura grew suspicious. They, therefore shouted and attracted a crowd. Thereafter, a complaint was lodged. Mathura was examined by a doctor who found that she had no injury on her person. Her hymen revealed old ruptures. The vagina admitted two fingers easily. The age of the girl was estimated by the doctor to be between 14 and 16 years. The Chemical Examiner did not find the traces of semen in the pubic hair and vaginal-smear slides. The presence of semen was, however, detected on the girl’s clothes.

The Sessions Judge found that there was no satisfactory evidence to prove that Mathura was below 16 years of age on the date of occurrence. He held that Mathura was “a shocking liar” whose testimony “is riddled with falsehood and improbabilities”. The Court came to the conclusion that she had sexual

811

intercourse while at the police station but rape had not been proved and that she was habituated to sexual inter- course, but finding that Nunshi and Ashok would get angry with her, she had to sound virtuous before them. Really speaking, she would have surrendered her body to the Constable.

6. The District Judge, therefore, acquitted the appellants. The High Court reversed the order of acquittal. The High Court found that the sexual intercourse was forcible and amounted to rape. Since both the accused were strangers to Mathura, it was highly improbable that Mathura would make any overtures or invite the accused to satisfy her sexual desire. It is possible that a girl who was involved in a complaint filed by her brother would make such overtures or advances. However the initiative must have come from the accused and if such initiative came from the accused, she could not have resisted the same. About appellant Tuka Ram, the Court believed that he had not made any attempt to rape the girl but took her word for granted insofar as he was alleged to have fondled her private parts after the act of sexual intercourse by Ganpat appellant.

7. In an appeal by special leave, the appellant contended that :-

(1) there is no direct evidence about the nature of the consent of the girl to the alleged act of sexual intercourse. Therefore, it had to be inferred from the available circumstances and it could not be deduced from those circumstances that the girl had been subjected to or was under any fear or compulsion as would justify an inference of any “passive submission.”

(2) The alleged intercourse was a peaceful affair and the story of stiff resistance is all false.

(3) The averments of the girl that she had shouted loudly is false.

(4) The reasoning of the High Court that the girl must have submitted to sexual intercourse because of the fear does not amount to consent.

Secondly, the High Court lost sight of the fact that Mathura and Gama had started to leave the police station and the case is that at that time Ganpat caught her. Allowing the appeal, the Court

^

HELD : 1. The onus is always on the prosecution to prove affirmatively each ingredient of the offence. It was therefore, incumbent on the prosecution to prove all the ingredients of Section 375 of the Indian Penal Code. The High Court has not given a finding that the consent of the girl was obtained by putting her in a state of fear of death or of hurt. Therefore, the third clause of section 375 will not apply. There could be no fear because the girl was taken away by Ganpat right from amongst her near and dear ones. The circumstantial evidence available is not only capable of being construed in a way different from that adopted by the High Court but actually derogates in no uncertain measure from the inference drawn by it. [817G-H, 818A, G-H,819A] Secondly, the intercourse in question is not proved to amount rape and that no offence is brought home to appellant Ganpat. As far as Tuka Ram is concerned, the girl has made serious allegations against Tuka Ram in the First 812

Information Report. She went back on these allegations at the Trial. The presence of Tuka Ram at the police station is not inculpatory and is capable of more explanations than one. The appellants were acquitted. [819C-E]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 64 of 1977.

Appeal by Special Leave from the Judgment and Order dated 12th/13th December, 1978 of the Bombay High Court (Nagpur Bench) in Criminal Appeal No. 193/74. M. N. Phadke, S. V. Deshpande, V. M. Phadke and N. M. Ghatate for the Appellants.

H. R. Khanna and M. N. Shroff for the Respondent. The Judgment of the Court was delivered by KOSHAL, J.-This appeal by special leave is directed against the judgment dated the 12th October 1976 of the High Court of Judicature at Bombay (Nagpur Bench) reversing a judgment of acquittal of the two appellants of an offence under section 376 read with section 34 of the Indian Penal Code recorded by the Sessions Judge, Chandrapur, on the 1st of June 1974, and convicting Tukaram, appellant No. 1, of an offence under section 354 of the Code and the second appellant named Ganpat of one under section 376 thereof. The sentences imposed by the High Court on the two appellants are rigorous imprisonment for a year and 5 years respectively.

2. Briefly stated, the prosecution case is this. Appellant No. 1, who is a Head Constable of police, was attached to the Desai Gunj police station in March, 1972 and so was appellant No. 2 who is a police constable. Mathura (P.W. 1) is the girl who is said to have been raped. Her parents died when she was a child and she is living with her brother, Gama (P.W. 3). Both of them worked as labourers to earn a living. Mathura (P. W. 1) used to go to the house of Nunshi (P.W. 2) for work and during the course of her visits to that house, came into contact with Ashok, who was the sister’s son of Nunshi (P.W. 2) and was residing with the latter. The contact developed into an intimacy so that Ashok and Mathura (P.W. 1) decided to become husband and wife.

On the 26th of March, 1972, Gama (P.W. 3) lodged report Ex-P8 at police station Desai Gunj alleging that Mathura (P.W. 1) had been kidnapped by Nunshi (P.W. 2), her husband Laxman and the said Ashok. The report was recorded by Head Constable Baburao (P.W. 8) at whose instance all the three persons complained against as well as Mathura (P.W. 1) were brought to the police station at

813

about 9 p.m. and who recorded the statements of the two lovers. By then it was about 10-30 p.m. and Baburao (P.W. 8) told them to go after giving them a direction that Gama (P.W. 3) shall bring a copy of the entry regarding the birth of Mathura (P.W.1) recorded in the relevant register and himself left for his house as he had yet to take his evening meal. At that time the two appellants were present at the police station.

After Baburao (P.W. 8) had gone away, Mathura (P.W. 1), Nunshi (P.W. 2), Gama (P.W. 3) and Ashok started leaving the police station. The appellants, however, asked Mathura (P.W. 1) to wait at the police station and told her companions to move out. The direction was complied with. Immediately thereafter Ganpat appellant took Mathura (P.W.1) into a latrine situated at the rear of the main building, loosened her under-wear, lit a torch and stared at her private parts. He then dragged her to a chhapri which serves the main building as its back verandah. In the chhapri he felled her on the ground and raped her in spite of protests and stiff resistance on her part. He departed after satisfying his lust and then Tukaram appellant, who was seated on a cot nearby, came to the place where Mathura (P.W. 1) was and fondled her private parts. He also wanted to rape her but was unable to do so for the reason that he was in a highly intoxicated condition.

Nunshi (P.W.2), Gama (P.W. 3) and Ashok, who had been waiting outside the police station for Mathura (P.W.1) grew suspicious when they found the lights of the police station being turned off and its entrance door being closed from within. They went to the rear of the police station in order to find out what the matter was. No light was visible inside and when Nunshi (P.W. 2) shouted for Mathura (P.W. 1) there was no response. The noise attracted a crowd and some time later Tukaram appellant emerged from the rear of the police station and on an enquiry from Nunshi (P.W. 2) stated that the girl had already left. He himself went out and shortly afterwards Mathura (P.W. 1) also emerged from the rear of the police station and informed Nunshi (P.W. 2) and Gama (P.W. 3) that Ganpat had compelled her to undress herself and had raped her.

Nunshi (P.W. 2) took Mathura (P.W. 1) to Dr. Khume (P.W. 9) and the former told him that the girl was subjected to rape by a police constable and a Head Constable in police station Desai Gunj. The doctor told them to go to the police station and lodge a report there.

814

A few persons brought Head Constable Baburao (P.W. 8) from his house. He found that the crowd had grown restive and was threatening to beat Ganpat appellant and also to burn down the police station. Baburao (P.W. 8), however, was successful in persuading the crowd to disperse and thereafter took down the statement (Ex. 5) of Mathura (P.W. 1) which was registered as the first information report. Mathura (P.W. 1) was examined by Dr. Kamal Shastrakar at 8 p.m. on the 27th of March 1972. The girl had no injury on her person. Her hymen revealed old ruptures. The vagina admitted two fingers easily. There was no matting of the pubic hair. The age of the girl was estimated by the doctor to be between 14 and 16 years. A sample of the public hair and two vaginal-smear slides were sent by the doctor in a sealed packet to the Chemical Examiner who found no traces of semen therein. Presence of semen was however detected on the girl’s clothes and the pyjama which was taken off the person of Ganpat appellant.

3. The learned Sessions Judge found that there was no satisfactory evidence to prove that Mathura was below 16 years of age on the date of the occurrence. He further held that she was “a shocking liar” whose testimony “is riddled with falsehood and improbabilities”. But he observed that “the farthest one can go into believing her and the corroborative circumstances, would be the conclusion that while at the Police Station she had sexual intercourse and that, in all probability, this was with accused No. 2.” He added however that there was a world of difference between “sexual intercourse” and “rape”, and that rape had not been proved in spite of the fact that the defence version which was a bare denial of the allegations of rape, could not be accepted at its face value. He further observed: “Finding Nunshi angry and knowing that Nunshi would suspect some thing fishy, she (Mathura) could not have very well admitted that of her own free will, she had surrendered her body to a Police Constable. The crowd included her lover Ashok, and she had to sound virtuous before him. This is why-this is a possibility-she might have invented the story of having been confined at the Police Station and raped by accused No.

2…………………………….. Mathura is habituated to sexual intercourse, as is clear from the testimony of Dr. Shastrakar, and accused No. 2 is no novice. He speaks of nightly discharges. This may be untrue, but there is no reason to exclude the possibility of his having stained his Paijamal with semen while having sexual intercourse with persons other than

815

Mathura. The seminal stains on Mathura can be similarly accounted for. She was after all living with Ashok and very much in love with him……………… ” and then concluded that the prosecution had failed to prove its case against the appellants.

4. The High Court took note of the various findings arrived at by the Learned Sessions Judge and then itself proceeded to sift the evidence bearing in mind the principle that a reversal of the acquittal would not be justified if the view taken by the trial court was reasonably possible, even though the High Court was inclined to take a different view of the facts. It agreed with the learned Sessions Judge in respect of his finding with regard to the age of Mathura (P.W. 1) but then held that the deposition of the girl that Ganpat appellant had had sexual intercourse with her was reliable, supported as it was by circumstantial evidence, especially that of the presence of stains of semen on the clothes of the girl and Ganpat appellant. The fact that semen was found neither on the public hair nor on the vaginal-smears taken from her person, was considered to be of no consequence by reason of the circumstance that the girl was examined by the lady doctor about 20 hours after the event, and of the probability that she had taken a bath in the, meantime. The High Court proceeded to observe that although the learned Sessions Judge was right in saying that there was a world of difference between sexual intercourse and rape, he erred in appreciating the difference between consent and “passive submission”. In coming to the conclusion that the sexual intercourse in question was forcible and amounted to rape, the High Court remarked: “Besides the circumstances that emerge from the oral evidence on the record, we have to see in what situation Mathura was at the material time. Both the accused were strangers to her. It is not the case of the defence that Mathura knew both these accused or any of them since before the time of occurrence. It is, therefore, indeed, highly improbable that Mathura on her part would make any overtures or invite the accused to satisfy her sexual desire. Indeed it is also not probable that a girl who was involved in a complaint filed by her brother would make such overtures or advances. The initiative must, therefore, have come from the accused and if such an initiative comes from the accused, indeed she could not have resisted the same on account of the situation in which she had found herself especially on account of a complaint filed by her brother against her which was pending enquiry at the very police station. If these circumstances are taken into consideration it would be clear that the initiative for sexual intercourse must have come from the

816

accused or any of them and she had to submit without any resistance…………… Mere passive or helpless surrender of the body and its resignation to the other’s lust induced by threats or fear cannot be equated with the desire or will, nor can furnish an answer by the mere fact that the sexual act was not in opposition to such desire or volition……………… On the other hand, taking advantage of the fact that Mathura was involved in a complaint filed by her brother and that she was alone at the police station at the dead hour of night, it is more probable that the initiative for satisfying the sexual desire must have proceeded from the accused, and that victim Mathura must not have been a willing party to the act of the sexual intercourse. Her subsequent conduct in making statement immediately not only to her relatives but also to the members of the crowd leave no manner of doubt that she was subjected to forcible sexual intercourse.” In relation to Tukaram appellant, the High Court did not believe that he had made any attempt to rape the girl but took her word for granted insofar as he was alleged to have fondled her private parts after the act of sexual intercourse by Ganpat appellant.

It was in these premises that the High Court convicted and sentenced the two appellants as aforesaid.

5. The main contention which has been raised before us on behalf of the appellants is that no direct evidence being available about the nature of the consent of the girl to the alleged act of sexual intercourse, the same had to be inferred from the available circumstances and that from those circumstances it could not be deduced that the girl had been subjected to or was under any fear or compulsion such as would justify an inference of any “passive submission”, and this contention appears to us to be well- based. As pointed out earlier, no marks of injury were found on the person of the girl after the incident and their absence goes a long way to indicate that the alleged intercourse was a peaceful affair, and that the story of a stiff resistance having been put up by the girl is all false. It is further clear that the averments on the part of the girl that she had been shouting loudly for help are also a tissue of lies. On these two points the learned Sessions Judge and the High Court also hold the same view. In coming to the conclusion that the consent of the girl was a case of “passive submission”, the High Court mainly relied on the circumstance that at the relevant time the girl was in the police station where she would feel helpless in the presence of the two appellants who were persons in authority and whose advances she could hardly repel all by herself and inferred that her submission to the

817

act of sexual intercourse must be regarded as the result of fear and, therefore, as no consent in the eye of law. This reasoning suffers from two errors. In the first place, it loses sight of the fact which was admitted by the girl in cross-examination and which has been thus described in the impugned judgement:

“She asserted that after Baburao had recorded her statement before the occurrence, she and Gama had started to leave the police station and were passing through the front door. While she was so passing, Ganpat caught her. She stated that she knew the name of accused No. 2 as Ganpat from Head Constable Baburao while giving her report Exh. 5. She stated that immediately after her hand was caught by Ganpat she cried out. However, she was not allowed to raise the cry when she was being taken to the latrine but was prevented from doing so. Even so, she had cried out loudly. She stated that she had raised alarm even when the underwear was loosened at the latrine and also when Ganpat was looking at her private parts with the aid of torch. She stated that the underwear was not loosened by her.”

Now the cries and the alarm are, of course, a concoction on her part but then there is no reason to disbelieve her assertion that after Baburao (P.W. 8) had recorded her statement, she and Gama had. started leaving the police station and were passing through the entrance door when Ganpat appellant caught hold of her and took her away to the latrine. And if that be so, it would be preposterous to suggest that although she was in the company of her brother (and also perhaps of Ashok and her aunt Nunshi) and had practically left the police station, she would be so over-awed by the fact of the appellants being persons in authority or the circumstance that she was just emerging from a police station that she would make no attempt at all to resist. On the other hand, her natural impulse would be to shake of the hand that caught her and cry out for help even before she noticed who her molester was. Her failure to appeal to her companions who were no others than her brother, her aunt and her lover, and her conduct in meekly following Ganpat appellant and allowing him to have his way with her to the extent of satisfying his lust in full, makes us feel that the consent in question was not a consent which could be brushed aside as “passive submission”.

Secondly, it has to be borne in mind that the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and that such onus never shifts. It was, therefore, incumbent on it to make out that all the ingredients of section 818

375 of the Indian Penal Code were present in the case of the sexual intercourse attributed to Ganpat appellant. That section lays down:

375. `A man is said to commit “rape” who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions:

First.-Against her will.

Secondly.-Without her consent.

Thirdly.-With her consent, when her consent has been obtained by putting her in fear of death, or of hurt. Fourthly.-With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.-With or without her consent, when she is under sixteen years of age.

Explanation.-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception.-Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.’

The section itself states in clauses Thirdly and Fourthly as to when a consent would not be a consent within the meaning of clause Secondly. For the proposition that the requisite consent was lacking in the present case, reliance on behalf of the State can be placed only on clause Thirdly so that it would have to be shown that the girl had been put in fear of death or hurt and that that was the reason for her consent. To this aspect of the matter the High Court was perhaps alive when it talked of “passive submission” but then in holding that the circumstances available in the present case make out a case of fear on the part of the girl, it did not give a finding that such fear was shown to be that of death or hurt, and in the absence of such a finding, the alleged fear would not vitiate the consent. Further, for circumstantial evidence to be used in order to prove an ingredient of an offence, it has to be such that it leads to no reasonable inference other than that of guilt, We have already pointed out that the fear which clause Thirdly of section 375 speaks of is negatived by the circumstance that the girl is said to have been taken away by Ganpat right from amongst her near and dear ones at a point of time when they were, all leaving the police station 819

together and were crossing the entrance gate to emerge out of it. The circumstantial evidence available, therefore, is not only capable of being construed in a way different from that adopted by the High Court but actually derogates in no uncertain measure from the inference drawn by it.

6. In view of what we have said above, we conclude that the sexual intercourse in question is not proved to amount to rape and that no offence is brought home to Ganpat appellant.

7. The only allegation found by the High Court to have been brought home to Tukaram appellant is that he fondled the private parts of the girl after Ganpat had left her. The High Court itself has taken note of the fact that in the first information report (Ex. 5) the girl had made against Tukaram serious allegations on which she had gone back at the trial and the acts covered by. Which she attributed in her deposition to Ganpat instead. Those allegations were that Tukaram who had caught hold of her in the first instance, had taken her to the latrine in the rear of the main building, had lit a torch and had stared at her private parts in the torch-light. Now if the girl could alter her position in regard to these serious allegations at will, where is the assurance that her word is truthful in relation to what she now says about Tukaram ? The High Court appears to have been influenced by the fact that Tukaram was present at the police station when the incident took place and that he left it after the incident. This circumstance, in our opinion, is not inculpatory and is cable of more explanations than one. We do not, therefore, propose to take the girl at her word in relation to Tukaram appellant and hold that the charge remains wholly unproved against him.

8. In the result, the appeal succeeds and is accepted. The judgment of the High Court is reversed and the conviction recorded against as well as the sentences imposed upon the appellants by it are set aside.

P.M.P. Appeal allowed.

820

Criminal Justice System

The difference between Consent & Submission in cases of Rape

Punjab-Haryana High Court
Rao Harnarain Singh Sheoji Singh … vs The State on 12 August, 1957
Equivalent citations: AIR 1958 P H 123, 1958 CriLJ 563
Author: T Chand
Bench: T Chand

ORDER

Tek Chand, J.

1. This is an application under Section 498, Criminal Procedure Code, for release of the petitioners on bail pending their trial for offence said to have committed under Sections 302. 376, 109 and 201, Indian Penal Code. The applicants are (1) Rao Harnarain Singh, an Advocate and an Additional Public Prosecutor at Gurgaon, (2) Ch. Mauji Ram Deputy Superintendent Jail, Gurgaon, (3) Balbir Singh and (4) Sanwat Singh. The salient facts of the case are that Kalu Ram accused, husband of Mst. Surti, used to live in one of the rooms in the house of accused Rao Harnarain Singh.

Mst. Surti is said to be an attractive girl of 19 years. On the evening of 18th of April 1957 Rao Harnarain Singh was entertaining Ch. Mauji Ram, Deputy Superintendent Jail, Gurgaon, on the eve of his transfer. Rao Harnarain Singh is said to have required Kalu Hum to send Mst. Surti for the carnal pleasures of himself and his guests. Kalu Ram, who had a very humble station in life, after initial protasts, was induced to provide his wife to satisfy the carnal lust of Rao Harnarain Singh and his guests.

It is said that the girl protested vehemently against this outrageous demand, but under pressure of her husband, she was induced to surrender her chastity. It is alleged that three accused persons Rao Harnarain Singb, Ch. Mauji Ram and Balbir Singh ravished her during the night & she died almost immediately. It is also alleged that her shrieks were heard by some Advocates living in the neighbourhood. It is then stated that at the instance of Rao Harnarain Singh, Dr. Ram Parshad, Assistant Surgeon, was sent for in order to ascertain whether the girl had merely swooned or died.

Another physician Dr. Gulati, was also summoned and both of thorn were of the view, that she was dead but they could not assign the cause of her death. In the early hours of the morning of 19th April 1957 she was cremated. The prosecution contention is that the cremation was unduly hurried, without the performance of the usual funeral rites and with a view to destroy proof of violence done to her. The prosecution then alleges that soon after the hurried cremation of the dead body of Mst. Surti Rao Harnarain Singh left Gurgaon on 19th of April 1957 and was not to be seen there for several days.

Ch. Mauji Ram also left Gurgaon in the early hours of the morning of 19th of April 1957. It is also alleged that before her cremation, clothes worn by Mst. Surti at the time had been removed and they have been found by an expert to be smeared with stains of seminal fluid and human blood. Kalu Ram, the husband of Mst. Surti, made a confession giving full details as to the manner in which pressure was put on him for production of his wife for the satisfaction of the carnal pleasures of Rao Harnarain Singh and his guests.

This confession had been retracted after a lapse of a month and a half of its recording. The prosecution contends that Kalu Ram was made to resile from the confession under influence and coercion emanating from accused Rao Harnarain Singh and Mauji Ram, The prosecution also submitted that Babu Ram, who served Rao Harnarain Singh and his guests at the dinner, was a witness to the earlier part of the entertainment and saw Rao Harnarain Singh, Mauji Ram and Balbir Singh going inside a room with the girl and he also heard their talk when they came out after she had expired.

Out of the applicants Balbir Singh was proclaimed as an absconder and was apprehended after his property had been attached under the provisions of Criminal Procedure Code. Bail Application was rejected by the Committing Magistrate and the Additional Sessions Judge also declined to release the accused on bail. This Court has therefore been moved under Section 498, Criminal Procedure Code, praying that the petitioners be released on bail pending the decision of the case.

2. On behalf of the accused it is stated that a report was made by the local station house Officer to the Superintendent of Police of Gurgaon on 26th of April, 1957 that no tfrime had been committed. It is then stated that about three weeks after the cremation of the girl a rumour went round in Gurgaon that Mst. Surti had died an unnatural death and this rumour was featured by a local newspaper. A formal report was then lodged by the Superintendent of Police on 11th of May, 1957.

In that report he stated that on 26th of April. 1957 station House Officer Sadar Gurgaon brought to his notice an incident wherein a woman was reported to have died on the night of 18th/19th of April 1957 and that her body was cremated in haste early in the morning without performance of customary obsequial rites. The report then stated that although no formal or informal complaint or report had been lodged with the police and since the matter was likely to attract public attention he ordered Shri Ram Partap Deputy Superintendent of Police to Institute immediate inquiries into the Incident.

The report then mentioned that while the matter was still under inquiry with the Deputy Superintendent of Police, the Superintendent of Police found a large number of different rumours in circulation as to the sinister and suspicious manner in which the girl met her death. The Superintendent of Police ordered that a case under Section 302, Indian Penal Code, should be registered and investigated by the Inspector of Police, C. I. A, Gurgaon, under his direct supervision, and that the inquiry entrusted to Shri Ram Partap, Deputy Superintendent of Police, should be discontinued forthwith and all the papers transferred to his file. On 13th of May 1957 the Deputy Superintendent of Police, C. I. D. started investigation. On 18th of May, 1957 Rao Harnarain Singh was taken into custody and Mauji Ram was arrested on 28th of May, 1957. Balbir Singh accused was arrested on 26th of June, 1957. In this case 30th of July 1957 was the date fixed for recording the evidence of prosecution witnesses and on that day a transfer application was moved on behalf of the accused in this Court which has not yet been disposed of except that the High Court declined to stay proceedings in the trial Court. I am informed that 12th of August 1957 is the next date of hearing in this case before the trial Court.

3. Mr. Bhagat Singh Chawla has pressed for enlargement of the accused on bail on several grounds. He said that his clients deserved to be released on bail, as there did not appear any reasonable ground for holding that they had been gulity of an offence punishable with death or with imprisonment for life.

In the absence of Corpus delict he said it was not possible on the allegations in this case to hold any one of the accused to be guilty of murder, especially when there is no eye-witness to testify to the murder and no proof being available that the body of the girl which was cremated in the early hours shortly after the occurrence bore any marks of violence, suggestive of commission of offences of which they have been accused.

4. He also contended that on the allegations made in this case commission of offence of rape on the girl could not be established. According to him the girl was produced for the satisfaction of the carnal desires of Rao Harnarain Singh and his guests, with the consent of the girl’s husband Kalu Ram. He further urged that the girl was also a consenting party and she surrendered her body to the three persons willingly and with the approval and at the bidding of her husband.

5. Mr. Bhagat Singh, also suggested that she was a grown up girl of 19 years, and a married woman, and death could not result in consequence of sexual intercourse with her by three persons. Her death, he thought, was fortuitous and probably due to sudden failure of the heart. In his words, Rao Harnarain Singh and his guests were having “a good time” and had gathered there for a little bit of “gaiety and enjoyment”.

He also said that his two clients were “respectable persons”, one being an Advocate and the other a Deputy Superintendent of Jail, and for this reason also deserved to be set at large. He lastly urged that the gathering of three accused in the evening and their act in ravishing Mst. Surti, young wife of Kalu Ram, might be morally reprehensible but it was not such an act which should stand in the way of the accused, from being released on bail.

6. From such material as was referred to during the course of arguments of the counsel, I cannot accept the suggestion of S. Bhagat Singh Chawla that Kalu Ram, the husband of the girl, was a pander who had willingly agreed to minister to the baser passions of his clients. I cannot even pursuade myself to the view that his wife was a dissolute young woman who willingly lent her body to her ravishers to gratify her own lustful propensities;

The confession of Kalu Ram which was read out and which was later retracted after a month and a half, does not suggest consent on the part of either Kalu Ram or Mst Surti his wife. Kalu Ram appears to have protested as vehemently as he could dare, having regard to his humble station in life, to the suggestion made by accused Rao Harnarain Singh, that he should send his wife for carnal connection with himself and with his guests.

After such verbal resistance as Kalu Ram could offer had been overcome, his wife indignantly refused to submit to the indecent proposal conveyed to her through her husband. It is said that under the husband’s pressure, she after vehement protestations resigned herself to the disgrace that awaited her. There is also material with the prosecution that her shrieks pierced through the walls of the room and were heard by some Advocates living in the neighbourhood just before her voice was finally and fatally silenced. Such a submission on her part cannot be called by any stretch of language, consent.

7. A mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be “consent” as understood in law. Consent, on the part of a woman as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent.

Submission of her body under the influence of fear or terror is no consent. There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent. Consent of the girl in order to relieve an act, of a criminal character, like rape, must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one’s will or pleasure.

A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former. On the material placed before me it cannot reasonably be argued that Mst. Surti was an assenting victim to the outrage perpetrated on her, on the fatal night. It is also not possible for me to accept the contention of the counsel for the accused petitioners, that Kalu Rani, the husband of the girl had freely and voluntarily accepted the importunate overtures, said to have been made to him, by Rao Haranarain Singh with full awareness of and willing concurrence in the proposed acts to which his wife was to be subjected by the accused persons.

8. Mr. Bhagat Singh Chawla also submitted commiseratingly that his clients were respectable and well connected persons, belonging to a higher strata of society and had assembled to spend a pleasant evening with no intention to endanger the life of the girl. The orgy of lust and debauchery to which the accused are said to have abandoned themselves was an act of unmitigated reprobates rather than of the so called “respectable persons”.

9. I am not unmindful of the proposition that the bad character of a man does not disentitle him from being bailed out if the law allows it. It is also well established that the object of detention pending criminal proceedings, is not punishment, and the law favours allowance of bail, which is the rule, and refusal is the exception. On the other hand, the social position or status of an accused person should not be taken into consideration while granting or rejecting an application for bail.

The Courts do not grant bail merely because an accused is a respectable man and is able to afford reasonable security (vide Emperor v. Abhairaj Kunwar AIR 1940 Oudh 8 (A) and Shaikh Karim v. Emperor AIR 1926 Nag 279 (B). I may profitably quote the observations of Courtney-Terrell, C. J., in Hikayat Singh v. Emperor, AIR 1932 Pat 209, at p. 211 (C).

“We must point out in the most emphatic way for the future guidance of Magistrates and Sessions Judges that save in exceptional cases, persons accused of crimes punishable with long terms of imprisonment should not be released by them on bail. The richer the accused and the more easy it is for him to find bail, the less it is desirable that he should be released …..”

10. It will be proper at this place to consider the principles which should guide the Courts in granting bail in a case like the present. There cannot be inflexible rules governing a subject which rests principally with the Courts’ discretion in the matter of allowance or refusal of bail. The probability or improbability of the prosecution terminating in conviction is not a conclusive consideration for the grant or refusal of bail, particularly in a case like this, in which evidence has not so far been led. For their guidance the Courts also look to other circumstances which may be determinative, as for example the Courts consider:

(a) the enormity of the charge,

(b) the nature of the accusation,

(c) the severity of the punishment which the conviction will entail, (d) the nature of the evidence in support of the accusation,

(e) the danger of the applicant’s absconding if he is released on bail,

(f) the danger of witnesses being tampered with,

(g) the protracted nature of the trial, (h) opportunity to the applicant for preparation of his defence and access to his counsel and

(i) the health, age and sex of the accused. There are also other considerations and the above is by no means an exhaustive catalogue of the factors which should weigh with the Courts.

11. The applicants in this case are accused of having committed the offences of murder, rape and also for causing disappearance of evidence of these offences. The first is a capital offence entailing death sentence, the second involves imprisonment for life and the last makes the offence punishable with imprisonment which may extend to seven years.

Section 497(1) of the Code of Criminal Procedure, while conferring wide discretionary powers on Courts to grant or refuse bail, where an accused person is suspected of the commission of a non-bailable offence, imposes important limitations, in cases where there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. The words “death or imprisonment for life,” should be read disjunctively, so as to mean offence punishable with death or punishable with imprisonment for life vide Emperor v. Nga San Htwa, AIR 1927 Rang 205 (FB) (D).

12. In this case an application for bail has been made at the initial stages of the case before the framing of charges against the accused and it is not possible at this juncture to scan the evidence in order to sec whether it establishes the guilt of the accused beyond reasonable doubt. On an application for bail it is not the certainty or the improbability of a capital sentence or imprisonment for life being imposed, which is to be seen but simply whether, the offence is one for which such a sentence may be awarded.

In considering an application for bail a Court is not required to conduct a preliminary trial of the case and consider the probability of the accused being found guilty or innocent. The Courts while deciding such applications, will be traversing beyond their proper ambit and would be exceeding: the limits of their function if they engage themselves in discovering the guilt or innocence of the accused applicant, which can only be determined at the trial stage.

Courts may, however, incidentally turn to the evidence with a view to examining the question of allowance or refusal of bail with reference to the principles governing release or detention pending the proceedings vide Public Prosecutor v. M. Sanyasayya Naidu AIR 1925 Mad 1224 (E).

13. The applicants in this case have been accused of having committed grave offences punishable with long terms of imprisonment and this is a consideration against their being released on bail. The question of severity of punishment must be looked at not from the point of view of what sentence on the facts of a particular case the Court should award, but only to see the maximum punishment which the Court may award.

14. Shri Chctan Das Diwan, learned counsel appearing for the State, has argued that the State entertains grave apprehension that there is a danger of the applicants absconding. It is stated in the affidavit of S. Surjan Singh, Deputy Superintendent of Police, C.I.D., that Balbir Singh accused was proclaimed as an absconder and he could not be apprehended until his property was attached under the provisions of the Criminal Procedure Code.

He has also argued that two accused, Rao Harnarain Singh and Mauji Ram, are men of importance in their respective walks of life, possessing considerable wealth and wielding great influence, and the witnesses who are to be produced by the prosecution, comparatively, occupy a very humble station in life; one of such witnesses served meals to the party at the dinner and another was a sweepress in the house of Rao Harnarain Singh. In this case, the apprehension that the accused on being released on bail will in all likelihood avail themselves of the opportunities to corrupt the prosecution witnesses by tampering with their testimony cannot be dismissed as chimerical.

15. In this case there is no risk of any unreasonable delay in consequence of the laches of the prosecution. An unreasonably long detention in Jail before the commencement of the trial is ordinarily a hardship, which weighs greatly with the Courts, in favour of the accused, while considering the desirability of allowing bail applications. But in this case there is no such risk as 12th of August, 1957, is the next date fixed before the trial Court. It is expected that the trial will proceed with reasonable speed.

16. There is no suggestion, that the trial is going to be protracted or their detention in jail has in any way deprived them of an opportunity to prepare their defence or has in any way interfered with their right to instruct their counsel. Lastly, bail in this case has not been asked on grounds relating to health or age of the accused.

17. After having thoroughly examined the arguments of the learned counsel, and after taking into careful consideration the principles governing release on bail, I am of the view, that this application and Criminal Miscellaneous No. 397 of 1957 cannot succeed, and are, there-tore, dismissed. I must however, warn the trial Court against drawing any inferences as to the guilt or innocence of the accused from any observations made in this order. The guilt or innocence of the accused is a matter which has to be determined by the trial Court and no remarks made by me should be treated as prejudging the case. Such comments as have been made in this order exclusively bear on considerations for refusing or allowing release on bail.

Criminal Justice System

For 420 in cheque bounce cases – dishonest intention at time of giving cheque necessary

This decision basically states that merely because cheque gets dishonoured – won’t automatically give rise to liability u/s 420 for cheating – the prosecution/complainant has to prove that at the time of giving of cheque the intention of drawer was dishonest/fraudulent, and he did not intend to pay, but dishonestly induced the complainant to delivery valuable security/property. 
Gauhati High Court
Manoranjan Haldar vs Mechfab Engineering Industries on 15 March, 1983
Equivalent citations: 1984 CriLJ 1265
Author: S Ali
Bench: S Ali

ORDER

S.M. Ali, J.

1. This application under Section 401 and/or 482 Cr.P.C. is directed against the order dated 15.10.81 passed by Judicial Magistrate, Gauhati in Case No. 1666/81 and for quashing the proceeding pending in the court of the judicial Magistrate vide the aforesaid case.

2. The opposite party filed a complaint petition in the Court of the Chief Judicial Magistrate, Kamrup at Gauhati on 28.8.82, against the accused-petitioner alleging that the complainant is a partner of M/s. Mechfab Engg, Industries having its head office and place of business at Zoo Road, Gauhati and being a firm manufacturing steel articles. On 3.7.81 the accused-petitioner placed an order with the firm for supply of 27 Nos. of G.I. Tank valued at Rs. 64,500/-. In pursuance of which the accused-petitioner paid an advance amouts of Rs. 30,000/- to the firm by a Bank cheque D/-3.7.81 which was duly encased by the firm Against the order of supply the complainant firm issued 27 Nos. of M. Section Moulds for P.S.C. Poles and one G.I. Tank by the bill D/-5.9.81. 14 Nos. of P.S.C. Poles and G. I. Tank were accepted by the accused-petitioner from the firm on 14.8.81. Then 13 Nos. of M.S. Moulds, P.S.C. Poles were supplied to the accused-petitioner on 5.9.81 by the firing which the accused-petitioner accepted. It is further alleged that a sum of Rs. 10,000/- was subsequently paid by the accused-petitioner to the complainant through a Bank Cheque which was also duly encased. For the balance amount of the dues the accused-petitioner issued a Bank Cheque DA 7.9.81 against his account at the Central Bank of India, Fancy Bazar Branch, Gauhati. The complainant presented the cheque to the Bank on 7.9.81 but it was dishonoured by the Bank. This fact was brought to the notice of the accused-petitioner who however apologized for the firm having not received the payment of the cheque money. The accused-petitioner assured the complainant that the cheque would be honoured if presented to the Bank after a couple of days. The complainant again presented the cheque on 24.9.81 to the Bank but’ the Bank informed that the accused petitioner by his letter D/- 24.9.81 directed the Bank to stop payment to the complainant. On enquiry from Bank the complainant came to know that the accused-petitioner bad only sum of Rs. 700/- at his credit at the Bank. Thereafter the complainant demanded the sum of Rs. 24,500/- from the accused-petitioner on several occasions but the accused ultimately refused to make payment of the dues on 14.10.81. The allegation is therefore that the accused-petitioner with full knowledge that he had no money in the Bank to satisfy the dues of the complainant issued the cheque and thus had the intention to deceive the complainant. Thus the accused-petitioner dishonestly induced the complainant to, deliver the articles with the intention to cheat the complainant.

3. The learned Chief Judicial Magistrate transferred the petition of complaint to the I learned Judicial Magistrate who examined the complainant on oath and finding that a I prima facie case Under Section 420 IPC was made out against the accused, issued, warrant of arrest against the accused with a bail of Rs. 5000/-.

4. On 17.11.81 the accused-petitioner I appeared before the court and was enlarged on a bail of Rs. 3000/- with one surety.

5. The case remains pending in the court of the learned Judicial Magistrate, who has not yet started trial.

6. It is to be seen whether any offence of cheating has been made out as per the complaint. In his examination under Section 200 Cr.P.C. the complainant (the partner representing the firm) disclosed that he met the accused-petitioner 2/4 days after the Bank had issued him a memo. Showing the reason of not honouring the bank cheque and that ultimately on 14.10.81 the accused informed him that he would not make any payment. Learned counsel for the petitioner pointed out that the facts of the complaint do not constitute the ingredients necessary for the offence of cheating, in any form. Section 415 IPC defines cheating as follows:

Whoever by deceiving any person fraudulently or dishonestly induces the person so deceived to deliver any property to any person or to consent that any person shall retain any property or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were so deceived and which act or omission causes or is likely to cause the damage or harm to that person in body, mind, reputation or property is said to cheat.

Explanation – The dishonest concealment of facts is a deception within the meaning of this section.

Section 420 IPC says:

Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person or to make, alter or destroy the whole or any part of a valuable security or anything which is signed or sealed and which is capable of being converted into a valuable security, shall be punished….

It is therefore clear that the intention to cheat must have been there with the accused at the time of the initial transaction. Where the accused had an intention to pay against delivery of goods, I the fact that he did riot pay would not convert the transaction into one of cheating. On the other hand, if he had no intention to pay but merely expressed his intention to pay in order to induce the complainant to part with the goods, then in that case cheating would be established. Then again, if there be no intention to, cheat at the time when promise of payment is made, subsequent inability to pay or perform the promise will not amount to any offence. It is of course settled principle that intention of an accused may be judged by his subsequent act or conduct. But still such conduct or act cannot be the sole criterion to judge his intention at the time of initial representation. There are two main Elements of offence of cheating, namely, deception and dishonest inducement to do or omit to do anything. At the same time, there deception is not a criminal offence nor is mere dishonesty so. In between the two conceptions there is yet a line though very thin giving rise to breach of contract for which remedy lies in a civil action.

7. In the light of the aforesaid principles of law we have to examine whether any criminal offence has been made out by the facts of the complaint. Here admittedly the accused made a payment of Rs. 40,000/- only to the complainant against the articles received by him from the firm. For the balance of the dues he issued a cheque D/-7.9.81 which though post dated was accepted by the complainant for encashment. When the Bank first dishonoured the cheque and as the matter came to the knowledge of the accused-petitioner he apologized and assured that in future the cheque would be honoured. That means he would be making necessary deposit in the Bank for encashment of the cheque. The accused-petitioner had only a sum of Rs. 700/- on his account in the Bank. It is stated in the complaint that on some subsequent occasions also the accused-petitioner assured the complainant that the payment would be made. Ultimately on 14.10.81 he refused to make any payment. These are the circumstances of the case and on the basis of these circumstances, it cannot be said that at the time when order for supply of the articles was placed by the accused-petitioner, he had any dishonest intention to deceive the complainant. There is scope to think that due to some subsequent developments, taking place between the parties, the accused-petitioner might have changed his mind for which he refused the payment. As said before, it is the established principle of law that the dishonest intention at the time of the initial transaction must appear to be clear. The subsequent conduct of the accused cannot make the transaction amount to cheating. The submission of the learned Counsel for the opposite parties that the facts of the case indicate that the accused-petitioner in order to cover up his dishonest intention made partial payment and that it was in his mind that after receiving the entire lot of the articles he would not make the balance payment thereby having some wrongful gain and that such dishonest intention to deceive the complainant was there with the accused from the very start of the deal, cannot be accepted in view of the facts of the case. The knowledge of the accused-petitioner that he had only a sum of Rs. 700/- in the Bank, whereas the Bank Cheque issued by him on 7.9.81 was for a sum of Rs. 24,500/- also by itself does not lead to the inference that he had the dishonest intention of cheating the complainant at the time when he placed the order for supply of the goods or at the time when he accepted the goods. As said before, there should be circumstances showing in a clear way that the accused had such a dishonest intention at the initial stage. As said before subsequent refusal to pay the balance amount cannot convert the transaction into cheating. It is found that the matter is purely of civil nature. It is a case of breach of contract. The complainant may take recourse to civil action if he so likes. But the criminal proceeding as it is in the present form would be merely a futile exercise.

8. The result is that the petition is allowed. The impugned order and the proceeding are hereby quashed. No order as to costs.

Criminal Justice System

Scope of Scrutiny at the stage of discharge …Supreme Court

This Judgment highlights the scope of scrutiny at the stage of discharge. 
 Supreme Court of India
R.S. Mishra vs State Of Orissa & Ors. on 1 February, 2011
Bench: J.M. Panchal, H.L. Gokhale

HELD:1.1. The provision concerning the framing of a charge is to be found in Section 228 of Cr.P.C. This Section is however, connected with the previous section, i.e. Section 227 which is concerning `Discharge’. From Section 227 it is clear that while discharging an accused, the Judge concerned has to consider the record of the case and the documents placed therewith, and if he is so convinced after hearing both the parties that there is no sufficient ground to proceed against the accused, he shall discharge the accused, but he has to record his reasons for doing the same. Section 228 which deals with framing of the charge, begins with the words "If after such consideration". Thus, these words in Section 228 refer to the `consideration’ under Section 227 which has to be after taking into account the record of the case and the documents submitted therewith. These words provide an inter-connection between Sections 227 and 228. That being so, while Section 227 provides for recording the reasons for discharging an accused, although it is not so specifically stated in Section 228, it can certainly be said that when the charge under a particular section is dropped or diluted, (although the accused is not discharged), some minimum reasons in nutshell are expected to be recorded disclosing the consideration of the material on record. This is because the charge is to be framed `after such consideration’ and therefore, that consideration must be reflected in the order. [Paras 17, 18] [357-F-G; 358-G-H; 359-A-C]

1.2. A discharge order is passed on an application by the accused on which the accused and the prosecution are heard. At the stage of discharging an accused or framing of the charge, the victim does not participate in the proceeding. While framing the charge, the rights of the victim are also to be taken care of as also that of the accused. That responsibility lies on the shoulders of the Judge. Therefore, on the analogy of a discharge order, the Judge must give his reasons atleast in a nutshell, if he is dropping or diluting any charge, particularly a serious one as in the present case. It is also necessary for the reason that the order should inform the prosecution as to what went wrong with the investigation. Besides, if the matter is carried to the higher Court, it will be able to know as to why a charge was dropped or diluted. [Para 19] [359-D-F]

1.3. At the initial stage of the framing of a charge, if there is a strong suspicion/evidence which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. Further, at the stage of the framing of the charge, the Judge is expected to sift the evidence for the limited purpose to decide if the facts emerging from the record and documents constitute the offence with which the accused is charged. This must be reflected in the order of the judge. Thus it cannot be disputed that in this process the minimum that is expected from the Judge is to look into the material placed before him and if he is of the view that no case was made out for framing of a charge, the order ought to be clear and self-explanatory with respect to the material placed before him. In the present case, all that the appellant stated in his judicial order was, that on consideration of the material available in the case diary, he had found that there was no sufficient material to frame the charge under Section 302 of IPC. This is nothing but a bald statement and was clearly against the statement of the injured eye witness, and supporting medical papers on record. The appellant has not even referred to the same. He has also not stated in his order as to why he was of the opinion that the material available in the case diary was insufficient. Such a bald order raises a serious doubt about the bona fides of the decision rendered by the Judge concerned. A young person had been killed. It was not a case of grave and sudden provocation. The material on record showed that there was an injured eye witness and there was the supporting medical report. The material on record could not be said to be self- contradictory or intrinsically unreliable. Thus, there was a prima facie case to proceed to frame the charge under Section 302 IPC. The reason given for dropping the charge under Section 302 was totally inadequate and untenable, and showed a non-application of mind by the appellant to the statements in the charge-sheet and the medical record. The order does not explain as to why a charge under Section 304 was being preferred to one under Section 302 IPC. In fact, since the material on record revealed a higher offence, it was expected of the appellant to frame the charge for more grievous offence and not to dilute the same. [Paras 20, 21 and 22] [359-G-H; 360-G-H; 361-A-G]

1.4. The impugned order of the High Court deciding Revision notes that the appellant had been functioning in the rank of the District Judge from August 1991 onwards, i.e. for nearly 5 years prior to his judicial order and further states that a Judicial Officer, before being posted as an Additional Session Judge, gets experience of taking the sessions cases as Assistant Session Judge. It cannot, therefore, be said that the appellant did not have requisite experience to pass a correct legal order under Section 228 of Cr.P.C. That apart, all that the impugned order in Revision did was to suggest to the High Court Administration, that if the appellant was not yet confirmed, his probation should wait and if he was already confirmed, his performance be verified before giving him the higher scale. Since the appellant, was already confirmed in service, all that the High Court did on the administrative side was to check his record, and thereafter to deny him the selection grade. The above observation in the impugned order in Revision was a suggestion to the Administration of the High Court. It was not a case of making any adverse or disparaging remarks. Having noted that the appellant had failed in discharging his duty in framing the correct charge, and having also noted that his record was not good, the High Court could not have granted him the selection grade. The selection grade is not to be conferred as a matter of right. The record of the concerned Judge has to seen, and that having been done in the present case (in pursuance to the observations of the High Court), and having noted the serious deficiencies, the High Court had denied the selection grade to the appellant. The impugned order contained nothing but a correctional suggestion to the High Court Administration which the Administration has accepted. [Para 24] [362-C-H; 363-A]

1.5. It is only because of the note made by inspecting Judge that the cursory order passed by the appellant in the Sessions case diluting the charge against the accused came to the notice of the High Court Administration. By the time the suo-moto Revision was decided, the accused had already undergone the punishment of rigorous imprisonment of 5 years and, therefore, the Revisional Court did not deem it fit to reopen the case. The appellant cannot take advantage of this part of the judgment of the Revisional Court, to challenge the observations of the Revisional Judge making a suggestion to the High Court to scrutinize appellant’s record for the dereliction of duty on his part. The appellant was responsible for an unjustified dilution of the charge and, therefore, thorough checking of his service record was necessary which is, what was directed in the impugned order of the Revisional Court/High Court. There is no reason to interfere in the said order making certain observations and suggestions which were necessary in the facts and circumstances of the case. [Paras 25, 26] [363- B-F]

In the matter of `K’ A Judicial Officer, 2001 (3) SCC 54; V.K. Jain v. High Court of Delhi through Registrar General and Others, 2008 (17) SCC 538 and Prakash Singh Teji v. Northern India Goods Transport Company Private Limited and Anr, 2009 (12) SCC 577 – distinguished.

State of Bihar v. Ramesh Singh AIR 1977 SC 2018; Nirmaljit Singh Hoon v. State of West Bengal1973 (3) SCC 753; Chandra Deo Singh v. Prokash Chandra Bose AIR 1963 SC 1430; Niranjan Singh v. Jitendra Bhimraj 1990 (4) SCC 76 – relied on.

Case Law Reference:

2001 (3) SCC 54 distinguished Para 12

2008 (17) SCC 538 distinguished Para 13

2009 (12) SCC 577 distinguished Para 14

AIR 1977 SC 2018 relied on Para 20

1973 (3) SCC 753 relied on Para 20

AIR 1963 SC 1430 relied on Para 20

1990 (4) SCC 76 relied on Para 20

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 232 of 2005.

From the Judgment & Order dated 28.10.2002 of the High Court of Orissa in Suo Motu Criminal Revision Petition No. 367 of 1997.

Uday Gupta, D.K. Mishra, Manoj Swarup for the Appellant.

Suresh Chandra Tripathy, Janaranjan Das, Swetaketu Mishra for the

Respondents.

Criminal Justice System

Causing Death of Tresspasser by Rash & Negligent Act

Supreme Court of India
Cherubin Gregory vs The State Of Bihar on 31 July, 1963
Equivalent citations: 1964 AIR 205, 1964 SCR (4) 199
Bench: Ayyangar, N Rajagopala

PETITIONER:

CHERUBIN GREGORY

Vs.

RESPONDENT:

THE STATE OF BIHAR

DATE OF JUDGMENT:

31/07/1963

BENCH:

AYYANGAR, N. RAJAGOPALA

BENCH:

AYYANGAR, N. RAJAGOPALA

SINHA, BHUVNESHWAR P.(CJ)

SHAH, J.C.

CITATION:

1964 AIR 205 1964 SCR (4) 199

ACT:

Criminal trial-Trespasser-Duty of owners towards trespassers Indian Penal Code S. 99, 103, 304A.

HEADNOTE:

The appellant was charged under s. 304-A of Indian Penal Code for causing the death of a woman. The deceased was residing near the house of the accused. The wall of the latrine of the house of the deceased had fallen down about a week prior to the day of occurrence and so the deceased along with others started using the latrine of the accused. The accused protested against their coming there. The oral warnings however, proved ineffective and so he fixed up a naked copper wire across the passage leading upto his latrine and that wire carried current from the electrical wiring of his home to which it was connected. On the day of the occurrence, the deceased went to the latrine of the appellant and there she touched the aforesaid fixed wire as a result of which she died soon after. The trial and the appellate court convicted and sentenced the appellant under S. 304A of the Indian Penal Code. Hence this appeal. 200

Held : (1) The plea of the right of private defence of property was not sustainable for the reason that the type of injury caused by the trap laid by the accused could not be brought within the purview of S. 99 or 103 of the Indian Penal Code.

(2) A trespasser was not an outlaw, a caput lupinem. The mere fact that the person entering a land was a trespasser did not entitle the owner or occupier to inflict on him personal injury by direct violence and the same principle would govern the infliction of injury by indirectly doing something on the land the effect of which he must know was likely to cause serious injury to the trespasser.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 3 of 1962.

Appeal by special leave from the judgment and order dated September 20, 1961 of the Patna High Court in Criminal Appeal No. 124 of 1960.

D. Goburdhan, for the appellant.

S.P. Ferma, for the respondent.

July 31, 1963. The judgment of the Court was delivered by AYYANGAR J.-This is an appeal by special leave against the judgment of the High Court of Patna dismissing an appeal by the appellant against his conviction and the sentence passed on him by the Sessions Judge, Champaran. The appellant was charged with an offence under S. 304A of the Indian Penal Code for causing the death of one Mst. Madilen by contact with an electrically charged naked copper wire which he had fixed up at the back of his house with a view to prevent the entry of intruders into his latrine. The deceased Madilen was an inmate of a house near that of the accused. The wall of the latrine of the house of the deceased had fallen down about a week prior to the day of the occurrence-July 16, 1959, with the result that her latrine had become exposed to public view. Consequently the deceased among others, started using the latrine of the accused. The accused resented this and made it clear to them that they did not have his permission to use it and protested against their coming there. The oral warnings, however, proved inef-

201

fective and it was for this reason that on the facts, as found by the courts below, the accused wanted to make entry into his latrine dangerous to the intruders. Though some of the facts alleged by the prosecution were disputed by the accused, they are now concluded by the findings of the courts below and are no longer open to challenge and, indeed, learned Counsel for the appellant did not attempt to controvert them. The facts, as found, are that in order to prevent the ingress of persons like the deceased into his latrine by making such ingress dangerous (1) the accused fixed up a copper wire across the passage leading up to his latrine, (2) that this wire was naked and uninsulated and carried current from the electrical wiring of his house to which it was connected, (3) there was no warning that the wire was live, (4) the deceased managed to pass into the latrine without contacting the wire but that as she came out her hand happened to touch it and she got a shock as a result of which she died soon after. On these facts the Courts below held that the accused was guilty of an offence under s. 304A of the Indian Penal Code which en- acts :

“304A. Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

The accused made a suggestion that the deceased had been sufficiently warned and the facts relied on in this connection were two : (1) that at the time of the accident it was past day break and there was therefore enough light, and (2) that an electric light was burning some distance away. But it is manifest that neither of these could constitute warning as the conditions of the wire being charged with electric current could not obviously be de- tected merely by the place being properly lit. The voltage of the current passing through the naked wire being high enough to be lethal, there could be no dispute that charging it with current of that voltage was a ‘rash act’ done in reckless disregard of the serious consequences to people coming in contact with it.

It might be mentioned that the accused was also cliar- 14–2 S. C. India/64

202

ged before the learned Sessions Judge with an offence under section 304 of the Indian Penal Code but on the finding that the accused had no intention to cause the death of the deceased he was acquitted of that charge. The principal point of law which appears to have been argued before the learned judges of the High Court was that the accused had a right of private defence of property and that the death was caused in the course of the exercise of that right. The learned judges repelled this defence and in our opinion, quite correctly. The right of private defence of property which is set out in s. 97 of the Indian Penal Code is, as that section itself provides, subject to the provisions of s. 99 of the Code. It is obvious that the type of injury caused by the trap laid by the accused cannot be brought within the scope of s. 99, nor of course of s. 103 of the Code. As this defence was not pressed before us with any seriousness it is not necessary to deal with this at more length.

Learned Counsel, however, tried to adopt a different approach. The contention was that the deceased was a trespasser and that there was no duty owed by an occupier like the accused towards the trespasser and therefore the latter would have had no cause of action for damages for the injury inflicted and that if the act of the accused was not a tort, it could not also be a crime. There is no substance in this line of argument. In the first place, where we have a Code like the Indian Penal Code which defines with particularity the ingredients of a crime and the defences open to an accused charged with any of the offences there set out we consider that it would not be proper or justifiable to permit the invocation of some Common Law principle outside that Code for the purpose of treating what on the words of the statute is a crime into a permissible or other than unlawful act. But that apart, learned Counsel is also not right in his submission that the act of the accused as a result of which the deceased suffered injuries resulting in her death was not an actionable wrong. A trespasser is not an outlaw, a Caput lupinem. The mere fact that the person entering a land is a trespasser does not entitle the owner or occupier to inflict on him personal in- jury by direct violence and the same principle would 203

govern the infliction of injury by indirectly doing some- thing on the land the effect of which he must know was likely to cause serious injury to the trespasser. Thus in England it has been held that one who sets springguns to shoot at trespassers is guilty of a tort and that the person injured is entitled to recover. The laying of such a trap, and there is little difference between the spring-gun which was the trap with which the English Courts had to deal and the naked live wire in the present case, is in truth “an arrangement to shoot a man without personally firing a shot”. It is, no doubt true that the trespasser enters the property at his own risk and the occupier owes no duty to take any reasonable care for his protection, but at the same time the occupier is not entitled to do willfully acts such as set a trap or set a naked live wire with the deliberate intention of causing harm to trespassers or in reckless disregard of the presence of the trespassers. As we pointed out earlier, the voltage of the current fed into the wire precludes any contention that it was merely a reasonable precaution for the protection of private property. The position as to the obligation of occupiers towards trespassers has been neatly summarised by the Law Reform Committee of the United Kingdom in the following words: “The trespasser enters entirely at his own risk, but the occupier must not set traps designed to do him bodily harm or to do any act calculated to do bodily harm to the trespasser whom he knows to be or who to his knowledge is likely to be on his premises. For example, he must not set man-traps or spring guns.

This is no more than ordinary civilised behaviour.” judged in the light of these tests, it is clear that the point urged is wholly without merit.

The appeal fails and is dismissed.

Appeal dismissed.


Criminal Justice System

Supreme Court on S.106 Burden of Proof as to facts especially within knowledge.

 Comment : In this case the Court was faced with a situation where a railway employee was arraigned u/s 420 IPC for having cheated railway by making it give money as T.A (Travel Allowance) when indeed the employee did not travel at all. His guilt was sought to be established by putting on him the burden of proving u/s 106 – that he did travel, sole evidence against him was that on such day no ticket was given by the ticket counter. Court held that in such a case burden cannot be put on him, the court also observed that it was not uncommon where people used to purchase tickets in the train and not the ocunter. 
Supreme Court of India
Shambu Nath Mehra vs The State Of Ajmer on 12 March, 1956
Equivalent citations: 1956 AIR 404, 1956 SCR 199
Bench: Bose, Vivian

PETITIONER:

SHAMBU NATH MEHRA

Vs.

RESPONDENT:

THE STATE OF AJMER.

DATE OF JUDGMENT:

12/03/1956

BENCH:

BOSE, VIVIAN

BENCH:

BOSE, VIVIAN

AIYAR, N. CHANDRASEKHARA

CITATION:

1956 AIR 404 1956 SCR 199

ACT:

Burden of Proof-Proof of facts within especial knowledge- Facts equally within the knowledge of the prosecution and the accused, if “especially within the knowledge” of the accused-Illustration, Scope of-Indian Evidence Act (I of 1872), s. 106, Illustration (b).

HEADNOTE:

The appellant was put up for trial under s. 420 of the Indian Penal Code and s. 5(2) of the Prevention of Corruption Act of 1947 for obtaining a total sum of Rs. 23- 12-0 from the Government as T.A., being second class railway fares for two journeys, one from Ajmer to Abu Road and the other from Ajmer to Reengus, without having actually paid the said fares. The prosecution proved from the railway books and registers that no such second class tickets were issued at Ajmer on the relevant dates and the same witness who proved this also proved that tickets were not always issued and the passengers could pay the fare in the train and if the second class was fully booked, no further tickets were issued till the train arrived,in which case passengers sometimes bought third class or inter-class tickets and thereafter paid the difference to the guard of the train, if they could find second class accommodation on the arrival of the train. There was no proof that one or other -of those courses were not followed by the appellant and the prosecution instead of proving the absence of any such payments, in the same way as it had proved the non-issue of second class tickets, relied on Illustration (b) to s. 106 of the Evidence Act and contended that it was for the appellant to prove that he had actually paid the second class fares.

200

Held, that Illustration (b) to s. 106 of the Evidence Act had no application, the evidence adduced by the prosecution did not warrant a conviction and the accused should, having regard to the long lapse of time, be acquitted. That s. 106 of the Evidence Act does not abrogate the well- established rule of criminal law that except in very exceptional classes of cases the burden that lies on the prosecution to prove its case never shifts and s, 106 is not intended to relieve the prosecution of that burden.’ On the contrary, it seeks to meet certain exceptional cases where it is impossible, or disproportionately difficult, for the prosecution to establish facts which are especially within the knowledge of the accused and which can be proved by him without difficulty or inconvenience. But when knowledge of such facts is equally available to the prosecution if it chooses to exercise due diligence, they cannot be said to be especially within the knowledge of the accused and the section cannot apply.

Attygalle v. Emperor, (A.I.R. 1936 P.C. 169) and Seneviratne v.B., ([1936] 3 All E.R. 36), referred to. That illustrations to a section do not exhaust its full content even as they cannot curtail or expand its ambit, and in applying s. 106 the balance of convenience, the comparative labour involved in finding out and proving the facts and the ease with which the accused can prove them must be taken into consideration.

That cases coming under ss. 112 and 113 of the Indian Railways Act to which Illustration (b) to -s. 106 has obvious application stand on a different footing.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 65 of 1954.

Appeal by special leave from the judgment and order dated the 2nd January 1953 of the Judicial Commissioner’s Court at Ajmer in Criminal Appeal No. 3 of 1952 arising out of the judgment and order dated the 4th January, 1952 of the Court of Sessions Judge at Ajmer in Criminal Appeal No. 300 of 1951.

B.P. Berry and B. P. Maheshwari, for the appellant. C. K. Daphtar Solicitor-General of India (Porus A. Mehta and P. G. Gokhale, with him) for the respondent. 1956. March 12. The Judgment of the Court was delivered by BOSE J.-The appellant, S.N. Mehra, a Camp Clerk 201

Ajmer, has been convicted of offences under section 420 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act, 1947 (Act II of 1947). He was sentenced to two years’ rigorous imprisonment and a fine of Rs. 100 on each count. The substantive sentences are concurrent. The substance of the offences for which he was convicted lay in obtaining sums to talling Rs. 23-12-0 from Government as T.A. for two journeys, one from Ajmer to Abu Road and the other from Ajmer to Reengus. The money represents the second class railway fare for these journeys. The allegation against him is that either he did not travel at all between those places on the relevant dates, or, if he did, that he did not pay the fare.

He appealed to the Sessions Judge at Ajmer and was acquitted. The State filed an appeal against the acquittal to the Judicial Commissioner of Ajmer’ The learned Judicial Commissioner accepted the appeal and remanded the case for retrial before a Special Judge because, by reason of certain amendments in the law, only a Special Judge could try an offence under section 5(2) of the Prevention of Corruption Act at the date of the remand.

The appeal here raises certain questions about sanction which we do not intend to discuss because, in our opinion, the evidence adduced does not justify a retrial as no conviction for those two offences could be based on it. It was first alleged that the appellant did not travel at all on the relevant dates and that the burden of proving that he did was on him.

We do not think this issue arises because the charge assumes that he did travel and there is no evidence before us to justify even a prima facie inference that he did not. The charge runs-

“That you, on or about etc … cheated the Government by dishonestly inducing the Government to pay you Rs. 62-9-0 on account of T.A. for the journeys performed on the above- mentioned days……… ”

202

There is no suggestion that the journeys were not performed and only purported to be; and it would be unfair to permit the State to go back on what it said in the charge at this stage, especially after the appellant has entered on his defence and virtually admitted that he did travel on those dates; in any case, he has not denied the fact and that would naturally operate to his disadvantage if the prosecution were to be allowed to change its position in this way. We must therefore accept the fact that he did travel as alleged on the relevant dates, and the only question that remains is whether he paid the second class fares which he later claimed, and obtained, from Government as T.A. for those journeys.

The only proof that is adduced in support of the allegation that he did not is that no second class tickets were issued at Ajmer on the relevant dates either for Abu Road or for Reengus. This is proved by the Booking Clerk Ram Dayal, P.W. 4. But the same witness proves that tickets are not always issued and that passengers can pay the fare on the train; also, if the second class is fully booked no further tickets are issued till the arrival of the train. In that case, passengers sometimes buy a third class or an inter-class ticket and then pay the difference to the conductor or guard of the train if they are able to find second class accommodation when the train arrives. There is no proof that one or other of these courses was not followed on the dates with which we are concerned. The railway registers and books would show whether or not any such payments were made on those dates and the State could have proved the absence of such payments as easily as it was able to prove, from the same sort of material, that no second class tickets were issued. Instead of doing that, the State contented itself with saying that no second class tickets were issued and, then relying on Illustration (b) to section 106 of the Evidence Act, it contended that the burden of proving that the accused did pay the second class fares was on him.

Illustration (b) runs thus:

“A is charged with travelling on a railway with- 203

out a ticket. The burden of proving that he had a ticket is on him”.

But this is only an illustration and must be read subject to the section itself and cannot travel beyond it. The section runs-

“When any fact is especially within the knowledge of any person, the burden of proving that fact is on him”. The stress, in our opinion, is on the word “especially”. Section 106 is an exception to section 101. Section 101 lays down the general rule about the burden of proof. “Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist”. Illustration (a) says-

“A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime”. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word

“especially” stresses that. It means facts that are preeminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the

204

burden lies on an accused person to show that be did not commit the crime for which he is tried. These cases are Attygalle v. Emperor(1) and Seneviratne v. R. (2).

Illustration (b) to section 106 has obvious reference to a very special type of case, namely to offences under sections 112 and 113 of the Indian Railways Act for travelling or attempting to travel without a pass or ticket or with an insufficient pass, etc. Now if a passenger is seen in a railway carriage, or at the ticket barrier, and is unable to produce a ticket or explain his presence, it would obviously be impossible in most cases for the railway to prove, or even with due diligence to find out, where he came from and where he is going and whether or not be purchased a ticket. On the other band, it would be comparatively simple for the passenger either to produce his pass or ticket or, in the case of loss or of some other valid explanation, to set it out; and so far as proof is concerned, it would be easier for him to prove the substance of his explanation than for the State to establish its falsity.

We recognise that an illustration does not exhaust the full content of the section which it illustrates but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose to exercise due diligence, as to the accused, the facts cannot be said to be “especially” within the knowledge of the accused. This is a section which must be considered in a commonsense way; and the balance of convenience and the disproportion of the labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts.

Now what is the position here? These journeys (1) A.I.R. 1936 P.C. 169.

(2) [1936] 3 All E.R. 36, 49.

205

were performed on 8-9-1948 and 15-9-1948. The prosecution was launched on 19-4-1950 and the appellant was called upon to answer the charge on 9-3-1951; and now that the case has been remanded we are in the year 1956. The appellant, very naturally, said on 27-4-1951, two and a half years after the alleged offences:

“It is humanly impossible to give accurate explanations for the journeys in question after such a lapse of time”. And what of the prosecution? They have their registers and books, both of the railway and of the department in which the appellant works. They are in a position to know and prove his official movements on the relevant dates. They are in a position to show that no vouchers or receipts were issued for a second class journey by the guard or conductor of the trains on those days. This information was as much within their “especial” knowledge as in that of the appellant; indeed it is difficult to see how with all the relevant books and other material in the possession of the authorities, these facts can be said to be within the “especial” knowledge of the appellant after such a lapse of time however much it may once have been there. It would, we feel, be wrong to allow these proceedings to continue any longer. The appellant has been put upon his trial, the prosecution has had full and ample opportunity to prove its case and it can certainly not complain of want of time to search for and prepare its material. No conviction could validly rest on the material so far produced and it would savour of harassment to allow the continuance of such a trial without the slightest indication that there is additional evidence available which could not have been discovered and produced with the exercise of diligence at the earlier stages.

We set aside the order of the Judicial Commissioner and restore the order of the Sessions Judge acquitting the appellant on both counts of the charge framed against him. 27

206