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Issue 6, Oct 2020
10.10.2020
Ratio Obiter
A Fortnightly Newsletter By Criminal Law Review
Contributors: Contact Us
Ananya crlreview@gmail.com
Karanam Anusha
Prasoon Shekhar 31 Contemporary Case Laws
Siddeeqa Iram & 6 Landmark Case Laws
Criminal Law Review (CrLR) | A Research Organisationii
Content
About Us
About ‘Ratio Obiter’
From the Desk of the Founder
Snippets
Common Intention v. Common Object
Ingredients of Sec 149
Criminal Contempt
Supreme Court
Delhi High Court
Gujarat High Court
Kerala High Court
Allahabad High Court
Gauhati High Court
Karnataka High Court
Himachal Pradesh High Court.
Bombay High Court
Calcutta High Court
Jammu & Kashmir High Court
Madhya Pradesh High Court
Patna High Court
Uttarakhand High Court
The CrLR Blog | Round-Up
Ratio Obiter. Issue 6 © 2020 Criminal Law Review (CrLR). All rights reserved.iii
About Us
Criminal Law Review (the ‘CrLR’), is a research organization founded by Ashwani
Kumar Singh. Though the CrLR started as a criminal law blog in Jan 2018, later on (in
the beginning of 2020) we started working to establish the CrLR as a research
organization. CrLR is incubated by the GNLU Legal Incubation Centre (GLIC).
The CrLR takes up several research projects, runs a blog and conducts various events
with an aim to promote legal writing and research and to assist legal fraternity in the
field of criminal law. As a research organisation, the CrLR provides an effective
platform to credible and comprehensive research work that deals with the intricacies
and nuances of criminal law.
About ‘Ratio Obiter’
The Ratio Obiter is a fortnightly newsletter to keep the legal community updated
about the recent happenings with regards to criminal law. The prime objective behind
the inception of this idea is to spark contemporary and insightful discussions in the
realm of criminal law. The CrLR team along with the interns efficiently works in
selecting content and editing process to put out only the best content.
The newsletter would consist of brief updates on select judgements of the Supreme
Court and High Court of India, recent blog posts, important legal news and snippets
of SC judgements among others.
All Rights Reserved.
Ratio Obiter. Issue 6 © 2020 Criminal Law Review (CrLR). All rights reserved.iv
From the Desk of the Founder
As our tagline suggests, the primary goal behind every activity of the CrLR is to
assist Legal Fraternity in Criminal Law in different ways possible. The Ratio Obiter,
our fortnightly newsletter, runs on the similar lines by keeping you updated.
This Issue of the Ratio Obiter has been made possible majorly by the efforts of our
Interns, and our Team is thankful to all of them –
Ananya (2019-24, Gujarat National Law University),
Karanam Anusha (2017-22, School of law, Alliance University),
Prasoon Shekhar (2018-23, ICFAI Law School, ICFAI University), and
Siddeeqa Iram (2019-24, Damodaram Sanjivayya National Law University)
If you are interested in contributing, reach to us at crlreview@gmail.com or +91-
7434045410 or any of our social media pages. We would be happy to hear any
feedback / suggestion from your end, please do get in touch.
~
Ashwani Kumar Singh, Founder & MD
E: ashwanis528@hotmail.com
Ratio Obiter. Issue 6 © 2020 Criminal Law Review (CrLR). All rights reserved.1
Snippets
Common Intention v. Common Object
State of Maharashtra v. Kashirao and Ors., MANU/SC/0627/2003.
o 'Common object' is different from a 'common intention' as it does not require
a prior concert and a common meeting of minds before the attack. It is enough
if each has the same object in view and their number is five or more and that
they act as an assembly to achieve that object.
o The 'common object' of an assembly is to be ascertained from the acts and
language of the members composing it, and from a consideration of all the
surrounding circumstances. It may be gathered from the course of conduct
adopted by the members of the assembly.
o For determination of the common object of the unlawful assembly, the conduct
of each of the members of the unlawful assembly, before and at the time of
attack and thereafter, the motive for the crime, are some of the relevant
considerations.
o What the common object of the unlawful assembly is at a particular stage of
the incident is essentially a question of fact to be determined, keeping in view
the nature of the assembly, the arms carried by the members, and the behavior
of the members at or near the scene of the incident.
o It is not necessary under law that in all cases of unlawful assembly, with an
unlawful common object, the same must be translated into action or be
successful.
Chittarmal and Anr. v. State of Rajasthan, MANU/SC/0008/2003.
o It is well settled by a catena of decisions that Sec34 as well as Sec 149 deal with
liability for constructive criminality i.e. vicarious liability of a person for acts
of others.
o Both the Sections deal with combinations of persons who become punishable
as sharers in an offence. Thus they have a certain resemblance and may to some
extent overlap. But a clear distinction is made out between common intention
Ratio Obiter. Issue 6 © 2020 Criminal Law Review (CrLR). All rights reserved.2
and common object in that common intention denotes action in concert and
necessarily postulates the existence of a prearranged plan implying a prior
meeting of the minds, while common object does not necessarily require proof
of prior meeting of minds or preconcert.
o Though there is a substantial difference between the two sections, they also to
some extent overlap and it is a question to be determined on the facts of each
case whether the charge Under Sec 149 overlaps the ground covered by Section
34.
Ingredients of Sec 149
State of Maharashtra v. Kashirao and Ors., MANU/SC/0627/2003.
o Section 149, IPC consists of two parts. The first part of the section means that
the offence to be committed in prosecution of the common object must be one
which is committed with a view to accomplish the common object.
o In order that the offence may fall within the first part, the offence must be
connected immediately with the common object of the unlawful assembly of
which the accused was member.
o Even if the offence committed is not in direct prosecution of the common object
of the assembly, it may yet fall under Sec 141, if it can be held that the offence
was such as the members knew was likely to be committed and this is what is
required in the second part of the section.
o Purpose of Sec 149: for which the members of the assembly set out or desired
to achieve is the object. If the object desired by all the members is the same, the
knowledge that is the object which is being pursued is shared by all the
members and they are in general agreement as to how it is to be achieved and
that is now the common object of the assembly.
Sikandar Singh and Ors. v. State of Bihar, MANU/SC/0462/2010.
o The provision has essentially two ingredients viz. (i) the commission of an
offence by any member of an unlawful assembly and (ii) such offence must be
committed in prosecution of the common object of the assembly or must be
Ratio Obiter. Issue 6 © 2020 Criminal Law Review (CrLR). All rights reserved.3
such as the members of that assembly knew to be likely to be committed in
prosecution of the common object.
o Once it is established that the unlawful assembly had common object, it is not
necessary that all persons forming the unlawful assembly must be shown to
have committed some overt act.
o For the purpose of incurring the vicarious liability for the offence committed
by a member of such unlawful assembly under the provision, the liability of
other members of the unlawful assembly for the offence committed during the
continuance of the occurrence, rests upon the fact whether the other members
knew beforehand that the offence actually committed was likely to be
committed in prosecution of the common object.
Criminal Contempt
Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat
and Ors., MANU/SC/0478/1991.
o The definition of criminal contempt is wide enough to include any act by a
person which would tend to interfere with the administration of justice or
which would lower the authority of court. The public have a vital stake in
effective and orderly administration of justice.
o The Court has the duty of protecting, the interest-of the community in the due
administration of justice and, so, it is entrusted with the power to commit for
contempt of court, not to protect the dignity of the Court against insult or
injury, but, to protect and vindicate the right of the public so that the
administration of justice is not perverted, prejudiced, obstructed or interfered
with.
In re: Vinay Chandra Mishra, MANU/SC/0471/1995.
o The criminal contempt of court undoubtedly amounts to an offence but it is an
offence sui generis and hence for such offence, the procedure adopted both
under the common law and the statute law even in this country has always
been summary.
Ratio Obiter. Issue 6 © 2020 Criminal Law Review (CrLR). All rights reserved.4
o However, the fact that the process is summary does not mean that the
procedural requirement, viz., that an opportunity of meeting the charge, is
denied to the contemner.
o The degree of precision with which the change may be stated depends upon
the circumstances. So long as the gist of the specific allegations is made clear
or otherwise the contemner is aware of the specific allegation, it is not always
necessary to formulate the charge in a specific allegation.
o The consensus of opinion among the judiciary and the jurists alike is that
despite the objection that the judge deals with the contempt himself and the
Contemner has little opportunity to defend himself, there is a residue of cases
where not only it is justifiable to punish on the spot but it is the only realistic
way of dealing with certain offenders.
o This procedure does not offend against the principle of natural justice, viz.,
Nemo judex in sua causa since the prosecution is not aimed at protecting the
Judge personally but protecting the administration of justice. The threat of
immediate punishment is the most effective deterrent against misconduct.
o The judge has to remain in full control of the hearing of the case and he must
be able to take steps to restore order as early and quickly as possible. The time
factor is crucial.
o Dragging out the contempt proceedings means a lengthy interruption to the
main proceedings which paralyses the court for a time and indirectly impedes
the speed and efficiency with which justice is administered.
o Instant justice can never be complete satisfactory yet it does provide the
simplest, most effective and least unsatisfactory method of dealing with
disruptive conduct in Court.
o So long as the contemner's interest are adequately safeguarded by giving him
an opportunity of being heard in his defence, even summary procedure in the
case of contempt in the face of the Court is commended and not faulted.
Ratio Obiter. Issue 6 © 2020 Criminal Law Review (CrLR). All rights reserved.5
Supreme Court
1. Satish v. State of Uttar Pradesh, [Special Leave Petition (Crl.) No. 8326 of 2019]
1.1. Keywords: Sec 364A (IPC), kidnapping, ransom, probation, Sec 401 (CrPC), Arms
Act, redemption, premature release, antecedent, good conduct in jail, liberty of the
prisoner, individual liberty.
1.2. This petition was filed the accused, seeking special leave petition against an
order of the Allahabad High Court which turned down their appeal against
conviction under Sec 364A of IPC and consequential sentence of life granted
by the trial court.
1.3. The Court in its judgement discussed about the reformative theory of
punishments at length. The court upheld that first-time offender ought to be
liberally accorded a chance to repent their past and look forward to a bright
future.
1.4. On the account of Art. 72 and 161 of the Indian Constitution, the court differed
from the respondent government’s order declining the premature release of
the accused. The court stated that the length of the sentence or the gravity of
the original crime can’t be the sole basis for refusing premature release rather
should be based on antecedents as well as on the conduct of the prisoner while
in jail.
1.5. Looking at the petitioners’ good conduct in jail and no reporting of criminal
antecedents, the court disposed of the Special Leave Petition, granting the
petitioners conditional premature release.
2. Neetu Kumar Nagaich v. The State of Rajasthan, [Writ Petition (Crl.) No. 141 of
2020]
2.1. Keywords: flawed investigation, delay in investigation, de novo investigation, Sec
174 & 173(8) (CrPC), Special Investigation Team.
2.2. The petitioner is the mother of the deceased, a 21 years old law student at
National Law University Jodhpur; who was mysteriously found dead on the
railway tracks at 9 in the morning. The petitioner, dissatisfied with the
investigation carried out, seeks justice for her son’s death.
Ratio Obiter. Issue 6 © 2020 Criminal Law Review (CrLR). All rights reserved.6
2.3. The court is vested with the power, if discontented with the original
investigation, to order a fresh investigation, in order to prevent the miscarriage
of the criminal justice.
2.4. The court in this case could not overlook the long pendency in the
investigation and the misguided approach taken by the investigating officers.
After analyzing the closure report by the investigation team, the court came to
the conclusion that it was a clear hasty action leaving much to be desired
regarding the nature of the investigation. It also questioned the high court for
disregarding the fact that the investigation remained inconclusive for nearly
three long years.
2.5. The court, therefore, set aside the closure report and directed a de novo
investigation by a fresh team of investigators headed by a senior police officer
and also imposed a deadline of 2 months.
3. Jeet Ram v. The Narcotics Control Bureau, [Criminal Appeal no. 688 of 2013]
3.1. Keywords: Sec 20 of Narcotics Drugs and Psychotropic Substances Act, 1985,
reduced sentence, trial court’s judgement not accepted, Sec 313 (CrPC).
3.2. This criminal appeal is filed by the accused, aggrieved by the judgment of
conviction passed by the High Court of Himachal Pradesh, Shimla, ordering
the accused to undergo rigorous imprisonment for 15 years and a fine. The
appellate-accused was charged punishable under Sec 20 of the NDPS Act for
possessing 13Kg of Charas.
3.3. After closely scrutinizing the depositions of the witnesses and looking deeply
into the evidence on record, the Hon’ble court is of the view that the findings
of the trial court are contrary to evidence on record, and the High Court rightly
interfered with the same and recorded its own findings to convict the
appellant.
3.4. The court upheld that it is always open to the appellate court to reappreciate
the evidence, on which the order of acquittal is founded, and appellate courts
have the powers to review and come to their own conclusions.
Ratio Obiter. Issue 6 © 2020 Criminal Law Review (CrLR). All rights reserved.7
3.5. The court contended that an appellate court must be cautious of the double
presumption in favor of the accused. Firstly, the accused is presumed to be
innocent under the fundamental principle of criminal jurisprudence and
secondly, the acquittal of the accused reinforces the presumption of his
innocence.
3.6. The Court held the High Court’s judgement free of any infirmity however,
considering the fact that the incident occurred in the year 2001, the court
deemed fit to reduce the sentence of the appellant to 10 years while
maintaining the conviction and penalty as imposed by the High Court.
Delhi High Court
4. Sunil v. State, [Crl. A. 832/2017, Crl. M. (Bail) 7775 of 2020 & Crl. M.A. 5348 of
2020]
4.1. Keywords: Rape, Sec 376 (IPC), sentencing, absence of resistance, corroborating
evidence, medical examination, Sec 164 & 313 (CrPC).
4.2. The appellant has filed the appeal impugning the judgment of the Additional
Sessions Judge who convicted the accused-appellant under Sec 376 of IPC and
sentenced him to seven years of rigorous imprisonment and a fine for raping
the prosecutrix.
4.3. The court submitted against the contentions of the appellant’s legal counsel,
who had suggested certain inconsistencies in the prosecutrix’s testimony, that
none of the inconsistencies are material so as to persuade the court to discard
her testimony. An allegation of rape made by a woman comes with
consequences such as, even after not being at fault, she is subjected to stigma
and ignominy.
4.4. Therefore, unless there are solid and justified reasons suggesting otherwise the
sole testimony of such victim will be sufficient to uphold the conviction of the
accused.
4.5. The court was also of the view that the absence of the act of resistance cannot
be considered a ground for acquittal of rape as it does not, in any case,
insinuate consent of the victim for sexual intercourse.
Ratio Obiter. Issue 6 © 2020 Criminal Law Review (CrLR). All rights reserved.8
4.6. The medical report in corroboration with the prosecutrix’s testimony was
found sufficient to prove the accused’s guilt. The court, therefore, finds the
appellant’s defense unpersuasive to raise any doubts on the prosecution’s case,
further calls for the dismissal of the appeal.
5. Samuel Okeke v. State, [Crl. A. 915 of 2016 & Crl. M. (Bail) 316 of 2020]
5.1. Keywords: Sec 21(b) & 21(c) of NDPS Act, 1985, mixture of sample, acquittal.
5.2. This appeal is filed by the accused-appellant challenging the judgement
convicting him guilty and sentencing him for ten years and six months of
imprisonment along with fine under the Sec 22(c) & Sec 21(b) of the NDPS Act
for being in possession of 400 gm of Methamphetamine and 10 gm of cocaine
respectively.
5.3. The Court has drawn suspicion on the manner in which the samples were
drawn which will subsequently be proved fatal for the prosecution’s case. The
sample for the drug Methamphetamine was drawn after mixing the content of
both the polythene pouches, which subsequently defies the object of drawing
and testing the sample which is to establish the composition and weight of the
substance recovered. Therefore, the court set aside the accused’s conviction
under Sec 22(c) of the NDPS Act.
5.4. However, the appellant’s conviction, under Sec 21(b) of NDPS Act for
possessing 10 gm of Cocaine, was upheld on the account that the two samples
were drawn and sealed in two separate pullandas. Therefore, the court, in this
case, allowed the appeal partly.
Gujarat High Court
6. Rahul Madhubhai Makani v. State of Gujarat, [R/Cr. MA/13813 of 2020]
6.1. Keywords: amicable settlement, quashing of FIR, Sec 482 (CrPC).
6.2. The application thus filed seeks the FIR registered, for the offences under Sec
498A, 323, 504, 114 and 506(2) of IPC, 1860 and Sec 3 & 4 of the Dowry
Prohibition Act against the applicants, to be quashed.
Ratio Obiter. Issue 6 © 2020 Criminal Law Review (CrLR). All rights reserved.9
6.3. The parties in this case agree into an amicable settlement seeking the
rescindment of the filed FIR. The Hon’ble high court, have submitted that,
since the parties have freely consented to settle the dispute, in an offence of
less gravity, there is no requirement of a trial.
6.4. It would be a futile exercise and any further proceedings would amount to
abuse of law, and if, the trial shall take place, the purpose of the same would
not be served. Considering the facts of the case and the further development,
the cause of action does not survive anymore.
6.5. Therefore, the FIR lodged under the relevant Sec of IPC and Dowry Prohibition
Act and all the consequential proceedings arising from there, is hereby
quashed and set aside.
7. Merubhai Ramabhai Kodiyatar v. State of Gujarat, [R/ Special Criminal
Application No. 4052 of 2020]
7.1. Keywords: quashing FIR, Art. 226/227 of Constitution of India, cancellation of bail,
Sec 439(2) (CrPC), rejection of bail.
7.2. This petition filed under Art. 226/227 of the Indian Constitution, challenges
the order passed by the Principal District and Sessions Judge whereby the
judge has cancelled the bail granted to the applicant-accused on the
application filed by the State as the applicant-accused was found in
contradiction to the conditions of the bail granted.
7.3. The Hon’ble High Court, believes that the learned sessions judge has failed to
consider the facts and circumstances placed before him for analysis while
declaring the cancellation of the bail.
7.4. The court in this matter submits that, in order to ensure fair trial, the cancelling
of a bail should be exercised with the greatest care and circumspection.
Referring to the Supreme Court’s verdict in Dolat Ram v. State of Haryana (1995)
1 SCC 349, this court stated that bail once granted should not be cancelled in a
mechanical manner without any supervening circumstances proving that the
accused’s retention of his or her liberty will compromise the fair trial of the
case.
Ratio Obiter. Issue 6 © 2020 Criminal Law Review (CrLR). All rights reserved.10
7.5. With no solid argument from the respondent state, the court favored the
petitioner by allowing the petition and, therefore, setting aside the order
passed by the Principal District and Sessions Judge.
Kerala High Court
8. State of Kerala v. Unnikrishnan, [Crl.A.991 of 2004 & Crl.Rev.Pet.301 of 2005]
8.1. Keywords: Dowry Death, cruelty, natural death of accused, acquittal, evidence,
personal interest, letter, Sec 304B, 498 & 34 (IPC).
8.2. This appeal was filed by the state challenging the acquittal of the accused who
were charged under Sec 304B IPC for causing the dowry death of the deceased.
This appeal was clubbed with a revision petition on the conviction of the
accused under Sec 498 r/w 34 of IPC for subjecting the deceased to cruelty.
8.3. One of the accused met with natural death while the proceedings were going
on, therefore, the court abated her case.
8.4. One of the major testimonies by the witnesses, was of the deceased’s mother’s,
who was still grieving for her daughter’s death; therefore, the court could not
convict the accused under Sec 498A based on the evidence provided by the
prosecution. Looking into the trial court’s decision, the Kerala High Court
could not find a ground to question the acquittal of the accused under the Sec
304B.
9. Venugopal v. State of Kerala, [Crl. A. Nos. 1457 & 1525 of 2005]
9.1. Keywords: Sec 5 of Explosive Substance Act, Sec 27 of the Arms Act, conviction,
sentencing, acquittal, prosecution failed, lack of evidence, Sec 34 (IPC).
9.2. This appeal was filed impugning the conviction of the accused under the Sec
5 of the Explosive Substance Act and sentencing of two years of rigorous
imprisonment and a fine.
9.3. The court after analyzing the prosecution’s case and the oral evidence
presented by the prosecution, believes that the prosecution has failed to prove
that the accused present in the dock of the court is the accused involved in this
Ratio Obiter. Issue 6 © 2020 Criminal Law Review (CrLR). All rights reserved.11
case. The perusal of the evidence could help the court to deduce nothing more
than the fact that the appellants were merely travelling in the autorickshaw.
9.4. The court is of the view that the prosecution could not prove that the
contraband articles were in conscious possession of the appellants, on account
of which, the criminal appeal was allowed and the conviction and the sentence
imposed on the appellants were set aside.
10. Sudheesh v. State of Kerala, [Crl. A. No. 636 of 2005]
10.1. Keywords: Sec 324, 332 & 307 r/w 34 IPC, conviction, injury, public servant,
sufficient evidence, reduction in punishment, oral evidence, corroboration, medical
evidence.
10.2. The appellants of this appeal are held guilty under Sec 324 and 332 r/w 34 of
IPC for which they were sentenced to undergo rigorous imprisonment of one
year and a fine.
10.3. The court, after considering the oral evidence in corroboration with the medical
evidence presented before the trial court, could not find any reason to be at
variance with the trial court’s conclusion and therefore upheld the conviction
and also the fact that the prosecution was able to successfully prove that the
accused assaulted the victim, in addition to which the accused deterred the
public servant from performing his duty.
10.4. However, considering the time elapsed since the commission of the crime,
which in this case is 21 years, and no criminal antecedents have been reported
on the part of the accused, the court was compelled to reduce the punishment
of the accused to just fine and compensation to the injured.
Allahabad High Court
11. Ram Ajor v. State of UP, [Criminal Appeal No. 5050 of 2006]
11.1. Keywords: Dowry Death, Sec 498A and 304B of IPC, Sec 4 of Dowry Prohibition Act,
113B of the Evidence Act, reduction of sentence, cruelty, soon before the death,
harassment, suicide, rare case, unnatural death, presumed to have cause death.
Ratio Obiter. Issue 6 © 2020 Criminal Law Review (CrLR). All rights reserved.12
11.2. This criminal appeal has been preferred against the judgement whereby the
appellant- accused has been convicted under Sec 498A and 304B of IPC and Sec
4 of Dowry Prohibition Act on account of which, the accused was sentenced to
undergo life imprisonment along with fine.
11.3. Sec 304B IPC requires two things to be proved for conviction: firstly, unnatural
death withing seven years of marriage and secondly, deceased should have been
subjected to cruelty and harassment demanding dowry soon before the death.
11.4. In addition to which, the court shall presume that whoever subjected the
deceased wife to cruelty, supposedly has caused the dowry death also,
according to the Sec 113B of the Evidence Act.
11.5. In the instant case, all the evidence is discernable of fulfilling the requirements
to prove 304B of IPC. However, there is no evidence that the deceased was done
to death by the accused- appellant as the deceased was found hanging on a tree.
11.6. The court was of the view that since there is no evidence stating otherwise, the
act of hanging can be concluded to be suicide which falls within the ambit of
Sec 304B(1) IPC.
11.7. On the appeal of the accused-appellant, for having been in the jail for the last
16 years, the court, keeping in mind that the measure of punishment should be
proportionate to the gravity of the offence, reduced the sentence of the
appellant from life imprisonment to that already undergone by the accused-
appellant as this case does not fall in the category of ‘rare case’ envisaged by
the Apex Court to award a life imprisonment.
Gauhati High Court
12. Raju Saikia v. The State of Assam, [Anticipatory Bail Application No. 1875 of
2020]
12.1. Keywords: Sec 376 IPC, Protection of Children from Sexual Offences (POCSO) Act,
2012, rejection of bail.
12.2. The court has established that after rejection of an application for pre-arrest bail
under Sec 438 CrPC on merits, there is scope to file a subsequent bail
application for pre-arrest bail only if there is change in the fact situation or in
Ratio Obiter. Issue 6 © 2020 Criminal Law Review (CrLR). All rights reserved.13
law which is of such nature that requires the earlier view to be interfered with
or when the earlier finding has become absolute.
13. Tabu Ram Pegu v. The State of Assam and anr, [Criminal Petition 290 of 2020]
13.1. Keywords: Sec 66(B),72 Information Technology Act, cognizable and non- cognizable
offence, and inherent powers.
13.2. The Hon’ble court, in this case, has held that circulating a video which contain
no secrets or national secret or material benefitting anyone but have visuals of
a responsible police officer assaulting an executive magistrate in public do not
constitute to an offence under Sec 66(B) and Sec 77 of the IT act
13.3. The courts have observed that The power under Sec 482 of the CrPC is the
inherent power of the High Court. This power is exercised in order to prevent
abuse of the process of the Court and to prevent miscarriage of justice.
13.4. Subjecting someone to criminal prosecution to wreck vengeance is a serious
matter; such an act affects his personal liberty. No greater damage can be done
to the reputation of a person than dragging him in a criminal case.
14. Helaluddin Ahmed v. The State Of Assam and Anr, [Criminal Petition No. 229
of 2020]
14.1. Keywords: Sec 482 CrPC, Inherent powers of court.
14.2. The power under Sec 482 CrPC cannot be invoked to resist the legitimate
prosecution at the threshold and the entire matter is to be decided only on the
basis of the evidence on record and authenticity of the allegation is to be tested
only on trial.
14.3. The Hon’ble judges in this case have observed that a prima facie has been made
out against the accused person and falsity of the allegation or otherwise is a
subject matter of trial and the Court at this stage, cannot appreciate the evidence
collected by the prosecution, whether the case will end in acquittal or
conviction.
14.4. This Court cannot hold an enquiry to ascertain the authenticity of the allegation
or the meticulous examination of evidence for exercising the power under Sec
Ratio Obiter. Issue 6 © 2020 Criminal Law Review (CrLR). All rights reserved.14
482 CrPC. Such a power cannot be invoked as a matter of rule, but as an
exception with circumspection and with care and caution.
Karnataka High Court
15. Kirankumar S/O Anandayya v. State of Karnataka, [ Criminal Appeal No.
100064 of 2018]
15.1. Keywords: Sec 106 Indian Evidence Act, burden of proof, homicidal death.
15.2. The Court, applying settled propositions of law and appreciation of the
evidence on record and finding of the Sessions Court, held that the accused are
responsible for the homicidal death of the victim and snatched away the gold
ornaments from the dead body of victim.
15.3. The Court was of the considered opinion that the prosecution has been able to
prove the circumstances narrated above by placing cogent material on record
and the finding of Sessions Court is based on the proper appreciation of
evidence on record and with sound logical reasons and thus does not call for
any interference by this Court.
15.4. When once the prosecution is successful in establishing its case by placing
cogent evidence on record, the burden of proving the fact, which is especially
in the knowledge of a person, must be placed by the defence. In this regard this
Court places its reliance on Sec 106 of the Indian Evidence Act.
16. Riyaz S/O. Abdulgafar Shaikh v. The State Of Karnataka, [Criminal Appeal No.
100100 of 2018]
16.1. Keywords: Sec 498A, 306, 304B of IPC, Dowry Prohibition Act, 1961, Dowry Death.
16.2. Where the accused by his acts or by a continued course of conduct creates such
circumstances that the deceased was left with no other option except to commit
suicide, "instigation" may be inferred.
16.3. The essence of the ingredients of the offence punishable under Sec 306 of IPC
is part of the charges framed for the offence punishable under Sec 304 B of IPC
with the intention of instigating victim to commit suicide, physically and
mentally ill treated her.
Ratio Obiter. Issue 6 © 2020 Criminal Law Review (CrLR). All rights reserved.15
17. Smt Malathi v. State Of Karnataka, [Criminal Appeal No. 408 of 2015 c/w
Criminal Appeal No 767 of 2015]
17.1. Keywords: Sec 300 & 304 IPC, culpable homicide, murder.
17.2. The Hon’ble court observed that an offence of culpable homicide does not
amount to murder if offence is committed without any premeditation in a
sudden fight in the heat of passion upon a sudden quarrel and without the
offender having taken undue advantage or acted in a cruel or unusual manner.
17.3. The Hon’ble judges in this specific case has observed that the accused has
caused injury by kicking the testicles of the deceased in the heat of passion over
doubting the fidelity of his wife without thinking whether his act would cause
death to the deceased and hence the offence does not amount to murder as the
accused in all probability did not have knowledge that his act would cause
death.
18. Yogesh Agarwal v. State Of Karnataka, [Criminal Petition No. 3197 of 2020]
18.1. Keywords: Sec 482 CrPC, Sec 138 of the NI Act.
18.2. The Hon’ble Court has observed in this case that fraud it is always open for a
party in a contract, to prosecute the other side for the offences alleged. Equally,
mere filing of a suit or complaint filed under Sec 138 of the NI Act, 1881 by itself
is no ground to quash the proceedings.
18.3. It is not the duty of the Court to see only on the face of reading of the complaint
and FIR whether the allegations constitute cognizable offence or not and it
should not adjudicate upon the veracity of offence alleged and it cannot
appreciate the other aspects.
Himachal Pradesh High Court.
19. Ami Chand v. State Of Himachal Pradesh, [Criminal Petition No. 1116 of 2020]
19.1. Keywords: SC/ST (Prevention of Atrocities Act), Sec 439 CrPC, provisions of bail,
Non-Bailable offences, FIR.
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19.2. The Hon’ble Court was of the view that interpretation of the Atrocities Act
should promote constitutional values of fraternity and integration of the
society. This may require check on false implications of innocent citizens on
caste lines.
19.3. Bail is the antithesis of custody. In the absence of any riders or restrictions
under Sec 439 CrPC, any person accused of a non-bailable offence, under any
penal law, including the violations under the Scheduled Caste & Scheduled
Tribes (Prevention of Atrocities) Act, 1989, can apply under Sec 439 CrPC,
offering to surrender and simultaneously seeking interim bail.
19.4. On receipt of such application, the Court is to satisfy that the applicant stands
arraigned as an accused in a FIR disclosing Non-Bailable offences. If all these
parameters are complete, then the Courts are under an obligation to accept
surrender.
19.5. Since custody is a sine qua non for considering a bail application, the Court is
under an obligation to consider the prayer for interim bail after this deemed
custody. All such pleas fall under the scope of Sec 439 CrPC itself, and there is
no need to invoke Sec 482 CrPC. After that, granting or refusing interim bail is
a Judicial function.
19.6. While granting interim bail, the rights of the victims, their families, the
oppressed communities, the existence of reasonable grounds for believing that
a person has committed an offence punishable with death or transportation for
life, the gravity and heinous nature of the crime, the criminal history of the
accused, as well as of the possibility of false implication, should always be gone
into.
19.7. Bail cannot be withheld merely as a punishment. One of the most significant
considerations is the accused's conduct, which was not to abscond but
voluntarily to surrender and submit themselves to the majesty of Justice. Each
case will have to be decided on the cumulative effect of all events put before
the Court. However, there would be no justification in entering into a roving
inquiry on either party's allegations.
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19.8. The offences committed against the persons extend to their family members,
stigmatize them, affect their dignity, demotivate them, and make them
unequal. To eliminate casteism, we need social re-engineering by developing
herd immunity, ensuring that perpetrators of casteism run out of hosts.
19.9. Thus, the prudent condition while granting interim bail in SCSTPOA is an
assurance from the accused of not terrorizing the victim, with a rider that
interim bail's order shall ipso facto vacate if the accused attempts to browbeat
the victim or repeats any such act. Subject to the seriousness of allegations, the
accused may also be directed to stay away from the victim's residence and
workplace.
20. Hitesh Gandhi v. Central Bureau Of Investigation, [Criminal Miscellaneous
Petition No. 1162 of 2020]
20.1. Keywords: Provision of bail, investigation of economic offence, grant of bail, economic
offences.
20.2. The Hon’ble Judge, in the present case of involvement of 22 private educational
institutions in a scam, observed that even if it is a case of socio-economic
offence of serious magnitude and respondent may have strong evidence about
involvement of the petitioner, yet 'gravity can only beget length of sentence'
provided in law, after the trial.
20.3. Grant of bail cannot be thwarted merely by asserting that offence is grave and
therefore, petitioner should remain in custody till the investigation of all 22
private educational institutes is completed.
20.4. Even in cases involving economic offences, where there is strong, prima facie,
evidence against the accused, it cannot be said as a matter of abstract principle
that bail should invariably be refused. It is impossible to hold that an accused
should not be granted bail during pendency of whole of investigation.
21. Shyam Lal Sharma v. State Of Himachal Pradesh. & Another, [Criminal MMO
No. 224 of 2020]
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21.1. Keywords: Arms Act, Sec 307 IPC, compromise between parties, special statutes,
quashing criminal proceedings, serious offences.
21.2. The Hon’ble High Court was of the opinion that any compromise between the
victim and offender in relation to the offences under special statutes like
Prevention of Corruption Act or the offences committed by public servants
while working in that capacity etc; cannot provide for any basis for quashing
criminal proceedings involving such offences.
21.3. But the criminal cases having overwhelmingly and pre-dominatingly civil
flavour stand on different footing for the purposes of quashing, particularly the
offences arising from commercial, financial, mercantile, civil, partnership or
such like transactions or the offences arising out of matrimony relating to
dowry, etc. or the family disputes where the wrong is basically private or
personal in nature and the parties have resolved their entire dispute.
21.4. The Court however additionally observed that offences under Sec 307 IPC and
the Arms Act etc. would fall in the category of heinous and serious offences and
therefore are to be treated as crime against the society and not against the
individual alone, and therefore, the criminal proceedings for the offence under
Sec 307 IPC and/or the Arms Act etc. which have a serious impact on the
society cannot be quashed in exercise of powers under Sec 482 of the Code, on
the ground that the parties have resolved their entire dispute amongst
themselves.
Bombay High Court
22. Amit Raoso Patil v. The State of Maharashtra, [Bail Application No. 1813 of 2020]
22.1. Keywords: Rape, § 376 of IPC, 1860, POSCO, Gravity of offence.
22.2. The applicant has approached the court for grant of bail for the offences
registered u/s 376, 354-D and 506 of the IPC, 1860 with Sec 3, 4, 11 and 12 of
the POSCO Act, 2012.
22.3. The applicant had relied on one case having identical facts as that of present
case and bail was granted by the Hon’ble Court.
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22.4. The Court observed that the position of law is no more res integra and orders
passed in previous bail application will not be a binding precedent. The court
further held that each case has to be decided on the basis of facts, gravity of
offence, conduct of applicant, his position in society and other important
factors.
22.5. The Court rejected the bail application on prima facie observations of the
materials placed on record. The court held: “‘Rape’ is not a forcible intercourse, it
means to inhabit and destroy everything”.
23. National Investigation Agency v. Vinay Talekar & Ors., [Criminal Appeal No. 8
of 2014]
23.1. Keywords: Acquittal, IPC, UAPA, Blast, Suspicion, Explosives Substances Act,
1908.
23.2. The appeal was filed by NIA against the order of Ld. Special Court for NIA
cases wherein the accused were booked under several charges of IPC, 1860,
UAPA, 1967 and Explosives Substances Act, 1908 for Goa Blast Case.
23.3. The court observed that mere graveness of suspicion can never be the proof
which is required in these offences. It was further observed that the prosecution
was unable to make any case against the any of the accused beyond reasonable
doubt.
23.4. The appeal was dismissed and acquittal of the accused by Ld. Special Court for
NIA cases was upheld.
24. Victim A & Ors. v. The State of Maharashtra, [Criminal Writ Petition No. 6065
of 2020]
24.1. Keywords: Prostitution, Immoral Traffic (Prevention) Act, 1956, Art. 227, § 482
CrPC.
24.2. The victims are members of ‘Bediya’ community wherein a custom of sending
girls to prostitution after attaining majority is prevalent. The victims have been
detained in protective homes for about one year on orders of Metropolitan
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Magistrate, Mazgaon and Ld. Additional Sessions Judge, Dindoshi and therefore,
they had approached this court for quashing the order of their detention.
24.3. The court observed that there is no provision under law which make
prostitution an offence or provides for punishing persons indulged in such act.
The court further observed that the punishments were provided under this Act
for sexual exploitation or abuse of person for commercial purpose.
24.4. The court ordered for quashing of order under which they were detained.
Calcutta High Court
25. Hiten Roy @ Hiru v. The State of West Bengal, [CRM No. 6381 of 2020]
25.1. Keywords: § 439 CrPC, § 21(c) NDPS Act, §s 25(1A), 25(1B) and 35 of Arms Act,
Statement of Accused.
25.2. The petitioner in the instant case was charged with provisions of Arms Act and
Narcotics Drugs and Psychotropic Substances Act. He approached the court for
grant of Bail.
25.3. The court observed that the petitioner was arrested merely on the basis of
accused from whom contraband has been recovered and there was no
independent material against the petitioner. Prima facie nexus of accused with
the offence was also lacking.
25.4. The petition was released on bail with certain conditions imposed.
Jammu & Kashmir High Court
26. Zakir Hussain v. UT of Ladakh through DGP & Ors., [Bail App. No. 67 of 2020
(2020 SCC Online J&K 484)]
26.1. Keywords: Sedition, § 124A, 153A of IPC, Objectionable words, Derogatory remarks.
26.2. The petitioner has approached the Hon’ble Court u/s 439 r/w Sec 437 for grant
of bail for offences u/s 124A, 153A, 153B, 188 and 505(2) of IPC, 1860. The
petitioner is an elected councillor of LAHDC and he has been booked for
objectionable and derogatory comments on social media against the country
and armed forces.
Ratio Obiter. Issue 6 © 2020 Criminal Law Review (CrLR). All rights reserved.21
26.3. The court observed that the words used in one conversation which is said to be
of the present petitioner prima facie appeared to be objectionable and
derogatory, but provisions of Sec 124A and 153A cannot be invoked on the said
ground.
26.4. Provisions of these sections can only be invoked when such conversation had
tendency/ was with intention to disturb public peace or creating disorder.
26.5. The court observed that the investigation was complete and the person had
deep roots in community so there was very less chance of fleeing. The petitioner
had also issued a public apology. Considering all these, bail was granted to the
petitioner.
27. Nasir Ahmad Mir v. UT of Jammu & Kashmir & Anr., [WP (Crl.) No. 674 of 2019]
27.1. Keywords: Quashing, Detention, Preventive Detention.
27.2. The petitioner, a semi-literate person had challenged the order issued by DM,
Srinagar whereby he has been placed under preventive detention in Central
Jail, Srinagar.
27.3. The court went through the ground of detention wherein it was mentioned the
he was playing active roles in illegal activities like stone pelting etc. It was
opined by courts than when the person is in jail how said contention can be
possible.
27.4. The court observed the material placed on record where it was unclear that the
grounds of his detention were explained to him. Judgments requiring the same
were placed on record. Court observed that the legal and constitutional
safeguards were not properly followed and hence it was directed to release the
detenue from custody.
Madhya Pradesh High Court
28. Shakuntala Khatik v. State of MP, [Criminal Appeal No. 10870 out of 2019]
28.1. Keywords: Suspend, Conviction, Elections, Exceptional.
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28.2. The petitioner is an MLA from Kiarara constituency of MP. He was sentenced
to imprisonment by the trial court under certain charges of IPC for more than
2 years in the year 2019.
28.3. The MP HC while suspending his conviction held that an MLA when convicted
becomes disqualified to contest in elections. After conviction if the person
wants to contest in the forthcoming elections, then he has to prove that the
conviction is not based on sound evidence to suspend the conviction.
28.4. The court observed that the conviction can be suspended only in exceptional
circumstances only after recording reasons to ensure that the conviction if
based on untenable grounds does not cause prejudice.
29. Phool Singh v. State of MP, [Criminal Miscellaneous No. 36488 out of 2020,
decided on 1st October, 2020]
29.1. Keywords: Sec 439 (CrPC), Bail, Undertrial Prisoner, delay in trial, Mercy of
Prosecution.
29.2. The petitioner approached the court under Sec 439 of CrPC for the grant of bail
for the 7th time due to the delay in trial.
29.3. The HC held the prosecution responsible for the delay in trial and while
granting the applicant bail observed that an undertrial prisoner cannot be put
in jail for an unlimited period of time at the mercy of the prosecution.
Patna High Court
30. Gore Lal Yadav, Gore lal Kumar v. State of Bihar, [Criminal Writ Jurisdiction
No. 1308 out of 2019, 29th September, 2020]
30.1. Keywords: Parens Patria, Art. 226 of the Indian Constitution, Certiorari, Remand,
Minor,
30.2. The petition was filed before the HC under Art. 226 of the constitution to grant
writ of certiorari to quash the order of the trial court. The victim in this case was
sent to remand home by the trial court as she was a minor and wanted to go
with the petitioner and not her natural guardian.
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30.3. The HC observed that its jurisdiction under Art. 226 is confined to correct the
error of law or procedural errors defeating the course of justice. The court’s
order to send victim to remand home was held to not be suffering from
illegality or any error of law and thus, certiorari cannot be issued.
30.4. Therefore, the HC while dismissing the petition held that the court has acted as
a guardian of the minor girl by relying on the case Suchita Shrivastava & Anr v.
Chandigarh administration (2009) 9 SCC 1, stating that the doctrine of parens patria
is applied by the state to protect the best interests of the victim.
Uttarakhand High Court
31. Rajendra Singh Bhandari v. State of Uttarakhand & Anr, [Criminal
Miscellaneous No. 1480 out of 2018, decided on 21st September, 2020]
31.1. Keywords: Sec 482 (CrPC), Representation of People’s Act, elections, Sec 125 of the
Representation of the People Act.
31.2. The petitioner was alleged to have printed a picture of Lord Badrinath on hand
bills and pamphlets while contesting in an election. It was contended that he
tried to gain votes by influencing people in the name of religion.
31.3. The proceedings against him were challenged. The HC refused to quash the
criminal proceedings against him under Sec 125 of the Representation of the
People Act, 1951. It stated that under the jurisdiction of Sec 482 of CrPC, it
cannot hold a parallel trial.
31.4. The HC referred to various judgments, one of them being Lee Kee Hun and others
v. State of UP JT 2012 (2) SC 237. The Supreme Court, in the mentioned case held
that under Sec 482 of the code, the court cannot go into the truth or the
otherwise of the allegations or any evidence.
Ratio Obiter. Issue 6 © 2020 Criminal Law Review (CrLR). All rights reserved.24
The CrLR Blog | Round-Up
1. Power to register FIR and Cognizance of Cognizable offences u/ Cr.P.C & special
statues: Time to revisit the law (published on 6th October, 2020. Access Here )
Authors: Hardik Gautam (practicing advocate in the Supreme Court of India).
Hardik Gautam, a practicing Advocate in Supreme Court, writes in light of a
Supreme Court judgment pronounced on 28th Aug, 2020 regarding the power of
Police to arrest, register FIR and investigate cognizable offences mentioned under
Chapter IV of the Drugs and Cosmetics Act [with references to CrPC provisions.
2. ‘Bois Locker Room’ Incident: Liability of Intermediaries in Online Scandals
(Published on 8th October, 2020. Access Here)
Authors: Vaibhav Suppal & Devansh Malhotra (Symbiosis Law School, Pune &
National Law Institute University, Bhopal)
The article discuss liabilities of (social media) intermediaries e.g., facebook,
Instagram, twitter etc., in light of the infamous Bois Locker Room incident.
The role and duty of these intermediaries according to the Information Technology
(Intermediary Guidelines Amendment Rules) 2018 can be understood as taking
enough precautions regarding the content to be published on the social media
platforms.
3. Decriminilisation of section 138 of NI Act: Dishonouring its purpose? (published
on 7th October, 2020. Access Here )
Authors: Yukta Ambastha & Shreya Shrivastava (National University of study and
research in law, Ranchi).
Ratio Obiter. Issue 6 © 2020 Criminal Law Review (CrLR). All rights reserved.25
The government through its recent notification has proposed to decriminalise
many minor white collar offences, including Sec 138 of Negotiable Instruments
Act, for ease in businesses.
Authors explain why this decision to decriminalize Sec 138 could be disastrous.
4. Reconciling Bail Law under UAPA in terms of a regulation based model
(published on 12th September, 2020. Access Here )
Authors: Sushovan Patnaik (National University of Juridical Sciences, Kolkata)
The author writes: Bail jurisprudence in India can be recalibrated in terms of
regulation through measures that reduce the intrusive consequences of bail denial
and ensure proportionality between the means and the objectives of the policy.
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