Bijumon and Ors Vs The New India Assurance Co on 28 Feb 2023
Source:
https://www.livelaw.in/news-updates/kerala-high-court-motor-vehicle-act-road-accident-notional-income-deceased-child-rs-30000-loss-of-dependency-223334
Author: ShadesOfKnife
Jai Prakash Tiwari Vs State of Madhya Pradesh on 04 Aug 2022
A Full bench of the Apex Court held as follows regarding the important of fundamental right available to accused u/s 313 Cr.P.C.
From Paras 18 and 19,
18. Another important issue that merits consideration in the present appeal is that the accused-appellant, in his Section 313 statement, stated that he and the complainant belonged to opposing student parties. The accused-appellant claimed that owing to the animosity pertaining to the elections, the accused-appellant was falsely implicated in the matter. He also produced two witnesses to prove his alibi. DW1 and DW2 have stated that the accused appellant was in his village as his mother was unwell. Moreover, the accused-appellant also pointed out to the Court that the father, sister and brother of the complainant were all a part of the police department. The accused-appellant also brought to the notice of the Court the fact that the complainant had also registered another criminal case against the accused-appellant in which he already stands acquitted.
19. In the case at hand, the alternate version put forth by the appellant-accused could not be ignored. Section 313 CrPC confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right, as a constitutional right to a fair trial under Article 21 of the Constitution.[See Reena Hazarika v. State of Assam, (2019) 13 SCC 289]
From Paras 25-28,
25. In the present case, the courts below failed to scrutinize the defence version put forward by the appellant-accusedin his Section 313 statement. The object of Section 313 of the Codeis to establish a direct dialogue between the court and the accused. (See Asraf Ali v. State of Assam, (2008) 16 SCC 328)
26. The purpose of Section 313 CrPC is to provide the accused a reasonable opportunity to explain the adverse circumstances which have emerged against him during the course of trial.A reasonable opportunity entails putting all the adverse evidences in the form of questions so as to give an opportunity to the accused to articulate his defence and givehis explanation.
27. If all the circumstances are bundled together and a singleopportunity is provided to the accused to explain himself, he may not able to put forth a rational and intelligibleexplanation. Such, exercises which defeats fair opportunity are nothing but empty formality. Non-fulfilment of the true spirit of Section 313 may ultimately cause grave prejudice tothe accused and the Court may not have the benefit of all the necessary facts and circumstances to arrive at a fair conclusion.
28. Such an omission does not ipso facto vitiate the trial, unless the accused fails to prove that grave prejudice has been caused to him. Although the counsel on behalf the accused has not proved any serious prejudice caused to him due to failure of the Court in framing individual circumstances; however, considering the long pendency of the matter and the right of the accused to have a fair and expeditious trial, we propose to proceed and decide the matter on its own merit.
From Para 29,
Jai Prakash Tiwari Vs State of Madhya Pradesh on 04 Aug 202229. It is an established principle of criminal law that the burden of proving the guilt of the accused beyond reasonable doubt is upon the prosecution. Where an accused sets up a defence or offers an explanation, it is well-settled that he is not required to prove his defence beyond a reasonable doubt but only by preponderance of probabilities. [See M. Abbas v. State of Kerala, (2001) 10 SCC 103]. Further, it has been held by this Court in Parminder Kaur v. State of Punjab, (2020) 8 SCC 811 that “once a plausible version has been put forth in defence at the Section 313 CrPC examination stage, then it is for the prosecution to negate such defence plea”.
Ayush Mahendra Vs State of Telangana on 05 Jan 2021
A single judge bench of Telangana High Court passed this reportable judgment regarding whether a co-accused be a surety to accused in a criminal case.
From Paras 21-26,
Ayush Mahendra Vs State of Telangana on 05 Jan 202121. As discussed supra, the prime object of the surety is to secure the presence of an accused for the purpose of concluding investigation and the trial after filing charge-sheet. A surety should be a fit person. Who is a fit person is not defined or explained anywhere in the Code. Generally, the surety must be a genuine person. He should not be a bogus person. Sureties come to the Court and give undertakings to the Court that he will ensure the presence of accused. If the accused fails to appear before the Court, surety bond executed by the surety will be forfeited. Thus, the Station House Officer has to ascertain the genuineness of surety. It is also relevant to note that there is no prohibition in the Code that the co-accused cannot stand as surety to any accused. It is also relevant to note that the prosecution has not filed any document to show that the mother of the accused is added as accused No. 2 in Crime No. 913 of 2020. Therefore, the Station House Officer, Madhapur Police Station is not justified in refusing to accept the surety of the mother of the accused. The mother of the accused whether she is co-accused or not can stand as a surety.
22. The apprehension of the prosecution is that both the petitioner and her mother are from Lucknow and there is every possibility of accused jumping on bail in which event the Investigating Officer will not be in a position to ensure the presence of the accused in concluding the investigation.
23. In view of the said apprehension, it is relevant to point out that there is provision in the Code to arrest the surety in the event of accused fails to appear before the Investigating Officer or Trial Court for concluding investigation or trial respectively. There is no provision in the Code to take any other step/action against surety except forfeiting the surety amount, and initiating the procedure laid down under Sections 82 and 83 of the Code which is lengthy procedure.
24. At the cost of repetition, as discussed supra, the object surety is to ensure the presence of accused for the purpose of completion of investigation and concluding of trial in case of filing of charge-sheet. The surety should be a fit person and a genuine person. He/She should not be a bogus person. The Court or the Station House Officer has to ascertain and take an undertaking from the surety that he/she will ensure the appearance of the accused for the purpose of completing the investigation and concluding the trial in case of filing charge-sheet. The Station House Officer should be satisfied the genuineness and identity of the surety including residential address of surety. The Station House Officer cannot reject or refuse to accept surety offered by mother of the accused, whether she is a co-accused or otherwise.
25. In the case on hand, the petitioner has filed copies of fixed deposit receipts obtained in the name of the mother of the petitioner, local surety and also filed copies of death certificate of his grandfather, flight tickets etc. After completion of funeral rites of his grandfather, he has reached the Hyderabad to offer sureties. But, the Station House Officer has refused to receive the same. In view of the above discussion, the Station House Officer, Madhapur, cannot refuse to accept the surety offered by the mother of the petitioner whether she is a co-accused or otherwise.
26. In view of the above discussion and also the authoritative principles of law, the Station House Officer, Madhapur Police Station, Cyberabad Commissionerate, is directed to accept the surety of mother of the petitioner-accused in compliance of the order dated 19.11.2020 passed by this Court in Crl. P No. 5782 of 2020. The time granted for surrender of the petitioner in the said order is extended by two weeks from the date of receipt of copy of this order.
Citations: [2021 ALT CRI 1 230], [2021 ALD CRI 1 491], [2021 SCC ONLINE TS 1931]
Other Sources:
https://www.casemine.com/judgement/in/60af56e34653d00e3c27c6e2
Earlier Anticipatory Bail Order:
Ayush Mahendra Vs State of Telangana on 19 Nov 2020
Premchand Vs State of Maharashtra on 03 Mar 2023
A Division Bench of the Supreme Court held as follows regarding the purpose and import of Section 313 of Cr.P.C.,
From Para 15,
15. What follows from these authorities may briefly be summarized thus:
a. section 313, Cr. P.C. [clause (b) of sub-section 1] is a valuable safeguard in the trial process for the accused to establish his innocence;
b. section 313, which is intended to ensure a direct dialogue between the court and the accused, casts a mandatory duty on the court to question the accused generally on the case for the purpose of enabling him to personally explain any circumstances appearing in the evidence against him;
c. when questioned, the accused may not admit his involvement at all and choose to flatly deny or outrightly repudiate whatever is put to him by the court;
d. the accused may even admit or own incriminating circumstances adduced against him to adopt legally recognized defences;
e. an accused can make a statement without fear of being cross-examined by the prosecution or the latter having any right to cross-examine him;
f. the explanations that an accused may furnish cannot be considered in isolation but has to be considered in conjunction with the evidence adduced by the prosecution and, therefore, no conviction can be premised solely on the basis of the section 313 statement(s);
g. statements of the accused in course of examination under section 313, since not on oath, do not constitute evidence under section 3 of the Evidence Act, yet, the answers given are relevant for finding the truth and examining the veracity of the prosecution case;
h. statement(s) of the accused cannot be dissected to rely on the inculpatory part and ignore the exculpatory part and has/have to be read in the whole, inter alia, to test the authenticity of the exculpatory nature of admission;
i. if the accused takes a defence and proffers any alternate version of events or interpretation, the court has to carefully analyze and consider his statements; and
j. any failure to consider the accused’s explanation of incriminating circumstances, in a given case, may vitiate the trial and/or endanger the conviction.
From Para 16,
16. Bearing the above well-settled principles in mind, every criminal court proceeding under clause (b) of sub-section (1) of section 313 has to shoulder the onerous responsibility of scanning the evidence after the prosecution closes its case, to trace the incriminating circumstances in the evidence against the accused and to prepare relevant questions to extend opportunity to the accused to explain any such circumstance in the evidence that could be used against him. Prior to the amendment of section 313 in 2009, the courts alone had to perform this task. Instances of interference with convictions by courts of appeal on the ground of failure of the trial court to frame relevant questions and to put the same to the accused were not rare. For toning up the criminal justice system and ensuring a fair and speedy trial, with emphasis on cutting down delays, the Parliament amended section 313 in 2009 and inserted sub-section (5), thereby enabling the court to take the assistance of the Public Prosecutor and Defence Counsel in preparing such questions [the first part of sub-section (5)]. Ideally, with such assistance (which has to be real and not sham to make the effort effective and meaningful), one would tend to believe that the courts probably are now better equipped to diligently prepare the relevant questions, lest there be any infirmity. However, judicial experience has shown that more often than not, the time and effort behind such an exercise put in by the trial court does not achieve the desired result. This is because either the accused elects to come forward with evasive denials or answers questions with stereotypes like ‘false’, ‘I don’t know’, ‘incorrect’, etc. Many a time, this does more harm than good to the cause of the accused. For instance, if facts within the special knowledge of the accused are not
satisfactorily explained, that could be a factor against the accused. Though such factor by itself is not conclusive of guilt, it becomes relevant while considering the totality of the circumstances. A proper explanation of one’s conduct or a version different from the prosecution version, without being obliged to face cross-examination, could provide the necessary hint or clue for the court to have a different perspective and solve the problem before it. The exercise under section 313 instead of being ritualistic ought to be realistic in the sense that it should be the means for securing the ends of justice; instead of an aimless effort, the means towards the end should be purposeful. Indeed, it is optional for the accused to explain the circumstances put to him under section 313, but the safeguard provided by it and the valuable right that it envisions, if availed of or exercised, could prove decisive and have an effect on the final outcome, which would in effect promote utility of the exercise rather than its futility.
From Para 17,
Premchand Vs State of Maharashtra on 03 Mar 202317. Once a written statement is filed by the accused under subsection (5) of section 313, Cr. P.C. and the court marks it as an exhibit, such statement must be treated as part of the accused’s statement under sub-section (1) read with sub-section (4) thereof. In view of the latter sub-section, the written statement has to be considered in the light of the evidence led by the prosecution to appreciate the truthfulness or otherwise of such case and the contents of such statement weighed with the probabilities of the case either in favour of the accused or against him.
Vibhor Garg Vs Neha
The Punjab and Haryana High Court decision here is challenged at Apex Court.
Diary No.- 31421 – 2021
Father Thomas Vs State of U.P. and Anr on 22 Dec 2010
Following the landmark decision of Apex Court here, the Full Bench of Allahabad High Court held as follows,
From Para 14,
14.In Union of India v. W.N. Chaddha, 1993 Cri.L.J 859 (SC) it has been held in paragraph 93: “…….More so, the accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under S. 173(2) of the Code or in a proceeding instituted otherwise than on a police report till the process is issued under S. 204 of the Code, as the case may be. Even in cases where cognizance of an offence is taken on a complaint notwithstanding the said offence is triable by a Magistrate or triable exclusively by the Court of Session, the accused has no right to have participation till the process is issued. In case the issue of process is postponed as contemplated under S. 202 of the Code, the accused may attend the subsequent inquiry but cannot participate. There are various judicial pronouncements to this effect but we feel that it is not necessary to recapitulate those decisions. At the same time, we would like to point out that there are certain provisions under the Code empowering the Magistrate to give an opportunity of being heard under certain specified circumstances.”
From Para 29,
29.From a consideration of the aforesaid authorities, it is apparent that even when a complaint is filed under section 190(1) (a) and the Court decides to take cognizance and to adopt the procedure provided for inquiry under section 200 and 202 Cr.P.C, the accused is only permitted to remain present during the proceedings, but not to intervene or to raise his defence, until the order issuing summons is passed. The right of hearing of a prospective accused at the pre-cognizance stage, when only a direction for investigation by the police is issued by the Magistrate under section 156(3) Cr.P.C., can only be placed at a lower pedestal. It is only during the course of trial that the accused has been conferred rights at different stages to raise his defence. As the authorities show, that in the absence of any statutory right of hearing to the prospective accused at the pre-cognizance stage, when the direction to investigate has only been issued by the Magistrate under section 156(3), the accused cannot be conferred with any right of hearing even under any principle of audi alteram partem.
From Para 41,
41.An order under section 156(3) Cr.P.C. passed by the Magistrate directing the police officer to investigate a cognizable case on the other hand is no such order of moment, which impinges on anyvaluable rights of the party. Were any objection to the issuance of such a direction to be accepted (though it is difficult to visualize anyobjection which could result in the quashing of a simple direction for investigation), the proceedings would still not come to an end, as itwould be open to the complainant informant to move an application under section 154(3) before the Superintendent of Police (S.P.) or a superior officer under section 36 of the Code. He could also file a complaint under section 190 read with section 200 of the Code. This is the basic difference from the situations mentioned in Madhu Limaye and in Amar Nath’s cases, where acceptance of the objections could result in the said accused being discharged or the summons set aside, and the proceedings terminated. Also the direction for investigation by the Magistrate is but an incidental step in aid of investigation and trial. It is thus similar to orders summoning witnesses, adjourning cases, orders granting bail, calling for reports and such other steps in aid of pending proceedings which have been described as purely interlocutory in nature in Amar Nath (supra).
From Para 58,
58.However it is made clear that the initial order for investigation under section 156(3) is also not open to challenge in a writ petition, as it is now beyond the pale of controversy that the province of investigationby the police and the judiciary are not overlapping but complementary. As observed by the Privy Council in paragraph 37 in Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC 18 when considering the scope of the statutory powers of the police to investigate a cognizable case under sections 154 and 156 of the Code, that it would be an unfortunate result if the Courts in exercise of their inherent powers could interfere in this function of the police. The roles of the Court and police are “complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function.”
Finally, from Paras 64 and 65,
Father Thomas Vs State of U.P. and Anr on 22 Dec 201064.In this view of the matter, the Opinion of the Full bench on the three questions posed is:
65.A. The order of the Magistrate made in exercise of powers under Section 156(3) Cr.P.C directing the police to register and investigate is not open to revision at the instance of a person against whom neither cognizance has been taken nor any process issued.
B. An order made under Section 156(3) Cr.P.C is an interlocutory order and remedy of revision against such order is barred under subsection (2) of Section 397 of the Code of Criminal Procedure, 1973.
C. The view expressed by a Division Bench of this Court in the case of Ajay Malviya Vs. State of U.P and others reported in 2000(41) ACC 435 that as an order made under Section 156(3) of the Code of Criminal Procedure is amenable to revision, and no writ petition for quashing an F.I.R registered on the basis of the order will be maintainable, is not correct.
Citations:
Other Sources:
https://indiankanoon.org/doc/77085610/
https://www.casemine.com/judgement/in/5767b120e691cb22da6d4314
Union of India and Anr Vs W.N.Chadha on 17 Dec 1992
A Division bench of the Apex Court held as follows,
From Para 91,
91. More so, the accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under Section 173(2) of the Code or in a proceeding instituted otherwise than on a police report till the process is issued under Section 204 of the Code, as the case may be. Even in cases where cognizance of an offence is taken on a complaint notwithstanding that the said offence is triable by a Magistrate or triable exclusively by the Court of Sessions, the accused has no right to have participation till the process is issued. In case the issue of process is postponed as contemplated under Section 202 of the Code, the accused may attend the subsequent inquiry but cannot participate. There are various judicial pronouncements to this effect but we feel that it is not necessary to recapitulate those decisions. At the same time, we would like to point out that there are certain provisions under the Code empowering the Magistrate to give an opportunity of being heard under certain specified circumstances.
From Para 97
97. If prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation lifeless, absurd and self- defeating. Further, the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary.
Indiankanoon Version:
Union of India and Anr Vs W.N.Chadha on 17 Dec 1992 (IK)Casemine Version:
Union of India and Anr Vs W.N.Chadha on 17 Dec 1992 (CM)LegalData Version:
Union of India and Anr Vs W.N.Chadha on 17 Dec 1992 (LD)Citations: [1992 SCALE 3 396], [1992 SUPP SCR 3 594], [1992 AIR SC 1082], [1992 SUPP JT 1 255], [1993 AIR SC 1083], [1993 SUPP SCC 4 280], [1993 CRLJ SC 859], [1993 SUPPL SCC 4 260], [1993 SCC CRI 1171]
Other Sources:
https://indiankanoon.org/doc/1787029/
https://www.casemine.com/judgement/in/5609ac7be4b014971140f032
https://legaldata.in/court/read/793121
Shivcharan Lal Verma and Anr Vs State of Madhya Pradesh on 19 Feb 2002
A full bench of Supreme Court held as follows regarding validity of 498A IPC proceedings when the marriage is null and void,
From Para 2,
2. This matter had not been taken up for hearing for this length of time as the judgment of this Court holding Section 306 of the IPC to be unconstitutional, was under re-consideration by the constitution bench. The constitution bench finally disposed of the matter in criminal case No. 274 of 1984 and batch and set aside the earlier judgment of this Court and held that Section 306 is constitutionally valid. In view of the aforesaid constitution bench decision, two questions arise for consideration in this appeal. One, whether the prosecution under Section 498A can at all be attracted since the marriage with Mohini itself was null and void, the same having been performed during the lifetime of Kalindi. Second, whether the conviction under Section 306 could at all be sustained in the absence of any positive material to hold that Mohini committed suicide because of any positive act on the part of either Shiv Charan or Kalindi.
Finally,
There may be considerable force in the argument of Mr. Khanduja, learned counsel for the appellant so far as conviction under Section 498A is concerned, inasmuch as the alleged marriage with Mohini during the subsistence of valid marriage with Kalindi is null and void. We, therefore, set aside the conviction and sentence under Section 498A of the IPC.
Citations : [2002 ACR SC 1 946], [2007 DMC SC 1 120], [2002 JT SC 2 641], [2007 SCC 15 369], [2010 SCC CRI 3 729], [2002 CRIMES SC 2 177], [2002 SUPREME 3 168], [2006 SLT 9 493], [2007 CCR 1 115]
Other Sources:
https://indiankanoon.org/doc/145448/
https://www.casemine.com/judgement/in/5609adbae4b01497114121aa
P Sivakumar and 2 Ors Vs State of Tamil Nadu on 09 Feb 2023
A division bench of Apex Court relying on landmark 3-judge bench decision here, held as follows,
From Para 5,
5. Mr. S.Nagamuthu, learned senior counsel for the appellants submits that the marriage between the parties has been held to be null and void by the judgment of the High Court of Madras, Madurai Bench by order dated 25.02.2021. He therefore submits that in view of the judgment of this Court in the case of Shivcharan Lal Verma v. State of Madhya Pradesh reported in (2007) 15 SCC 369, the conviction under Section 498-A IPC would not be sustainable.
From Para 7,
P Sivakumar and 2 Ors Vs State of Tamil Nadu on 09 Feb 20237. Undisputedly, the marriage between the appellant No.1 and PW-1 has been found to be null and void. As such the conviction under Section 498-A IPC would not be sustainable in view of the judgment of this Court in the case Shivcharan Lal Verma’s case supra. So far as the conviction under Sections 3 and 4 of the Dowry Prohibition Act is concerned, the learned trial Judge by an elaborate reasoning, arrived at after appreciation of evidence, has found that the prosecution has failed to prove the case beyond reasonable doubt. In an appeal/revision, the High court could have set aside the order of acquittal only if the findings as recorded by the trial Court were perverse or impossible.
Citations :
Other Sources:
Komaravolu Sai Srinivas Vs Komaravolu Gayathri on 10 Oct 2022
A single bench of AP High Court, relying on Sangita Saha Vs Abhijit Saha and Ors here, held as follows,
Komaravolu Sai Srinivas Vs Komaravolu Gayathri on 10 Oct 2022In view of the principle laid down in Sangita Saha V. Abhijit Saha (2020 (3) SCC (Cri) 573), wherein the Hon’ble Apex Court observed that when the petitioner therein was unable to establish any incident of torture or demand for money or physical violence, she is not entitled for any maintenance, this Court is of the opinion that the impugned order needs adjudication.
Citations :
Other Sources:
https://indiankanoon.org/doc/144262882/
