These are the recommendations prepared by Amicus curie in March 2020.
Supreme Court issued notices to all HCs and State Administrations to hear them and then pass Draft Rules.
Final Decision on 24-Apr-2021. [(2021) 10 SCC 598]
Tag: Landmark Case
Rajaram Prasad Yadav Vs State of Bihar and Anr on 4 Jul 2013
Supreme Court passed these guidelines when a witness is called or recalled for evidence.
a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?
b) The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate,
inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.
c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person.
d) The exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for
such facts, which will lead to a just and correct decision of the case.
e) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it
apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.
f) The wide discretionary power should be exercised judiciously and not arbitrarily.
g) The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to
arrive at a just decision of the case.
h) The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision.
i) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.
j) Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.
k) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.
l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also
ensure that an opportunity of rebuttal is given to the other party.
n) The power under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.
Citations : [2013 AD SC 8 583], [2013 AIR SC 3081], [2013 JLJR 3 447], [2013 JCC 3 2179], [2013 JT SC 11 118], [2013 NCC 2 582], [2013 PLJR 4 34], [2013 RCR CRIMINAL 3 726], [2013 SCALE 8 316], [2013 SCC 14 461], [2013 SCR 7 420], [2013 UC 3 1631], [2014 SCC CRI 4 256], [2013 SCC ONLINE SC 577], [2013 AIC 128 29], [2013 AIR SC 0 4179], [2013 AIR SC 1746], [2013 CRLJ SC 3777], [2013 SLT 6 571], [2013 SUPREME 4 621], [2013 AIOL 432], [2013 KCCR SN 4 396], [2013 SCJ 7 986], [2013 BOMCR CRI SC 4 35], [2013 AIR SCW 0 4179]
Other Sources :
https://indiankanoon.org/doc/3583407/
https://www.casemine.com/judgement/in/5609af2be4b0149711415b41
Sabina Sahdev and Ors Vs Vidur Sahdev on 9 Jul 2018
A Division bench of Delhi High Court held that, the law does not prescribe any precondition such that the arrears amount of maintenance has to be deposited before appeal or revision can be allowed.
From Para 22,
22. Neither the language used by the Legislature in Section 399 read with Section 401 of the Cr.P.C., nor the language used in Section 29 of the DV Act even remotely suggest that the Legislature intended to impose pre-conditions to the availment of the said remedies, of the kind evolved in Rajeev Preenja (supra).
And then from Para 25,
25. Laudable as the object of the learned Single Judge may have been, the question is, whether in the light of the settled law taken note of hereinabove, the learned Single Judge while deciding Rajeev Preenja (supra) could have issued a general direction barring entertainment of criminal revisions under Section 399 read with Section 401 Cr.P.C. against orders granting interim maintenance to the wife/ child under Section 125 Cr.P.C., unless the entire arrears of maintenance up to date were first deposited? In our view, with due respect to the learned Single Judge, the answer is clearly in the negative. As to what should be the policy of the law is a matter which squarely falls within the preserve of the Legislature, and it is not a matter which the Courts can dictate, or evolve. It is one thing to interpret an existing law and, while doing so, to adopt an interpretation which is purposive, i.e. one which advances the objective of the enactment. However, it is quite a different thing to evolve a statutory scheme which, even the Legislature did not provide for.
Finally, in Paras 29 and 30,
29. As rightly pointed out by Mr. Bahl, imposition of a limitation on the statutory remedy of revision/ appeal under Section 399 of the Cr.P.C. or Section 29 of the DV Act- as the case may be, also falls foul of Article 14 of the Constitution of India for the reasons noticed by the Division Bench in Gagan Makkar (supra).Even if the condition in question – of the nature directed by the learned Single Judge in Rajeev Preenja (supra), were to exist in the statutory framework, the same may fail the test of reasonableness under Article 14 of the Constitution of India. This is for the reason that, in a given case, the order granting interim maintenance passed by the Ld. Magistrate either under Section 125 Cr.P.C or under Section 29 of the DV Act, may be so harsh and so unreasonable, as to make it impossible for the opposite party/ husband to comply with the same. Experience shows that in a large number of cases, the arrears of interim maintenance- which may be granted from the date of moving of the application before the Ld. Magistrate, may accumulate to a very large amount running into lakhs of rupees. The arrears of interim maintenance may not necessarily be a meager amount in all cases. It would be most unjust and unreasonable to bar his statutory remedy of revision/ appeal as the case may be, merely because he may not be in a position to deposit the entire arrears of interim maintenance.
From Para 30 (Corum cleverly clubbed 125 Cr.P.C. cases also along with DV cases!)
30. Thus, we answer the reference by holding that the general direction issued in Rajeev Preenja (supra) in paragraphs 15, 16 and 20 are not sustainable. The said directions could not have been issued by the learned Single Judge as they seek to curtail the statutory remedy of revision available under Section 399 read with Section 401 of the Cr.P.C, and of appeal under Section 29 of the DV Act, against orders granting interim maintenance under Section 125 Cr.P.C. and Section 23 of the DV Act respectively. The direction in question over steps into the legislative field, which was impermissible for the Court to do. We agree with the view taken by the learned Single Judge in Brijesh Kumar Gupta (supra), that there cannot be an absolute rider that the entire maintenance amount, as granted by the Trial Court, should be deposited prior to the entertainment of the statutory remedy, because it would leave the remedy of statutory revision/ appeal illusory. Accordingly, we hold that a revision under Section 399 read with Section 401 Cr.P.C. and an appeal under Section 29 of the DV Act, against the order granting maintenance under Section 125 Cr.P.C. and under Section 23 of the DV Act respectively, would be maintainable, and would be entertained and heard without any pre-condition of deposit of the arrears of maintenance as ordered by the Ld. MM. We further hold that the pendency of such a Revision or Appeal- as the case may be, shall not operate as a stay of the operation of the order granting interim maintenance. The reference is answered accordingly.
Citations : [2018 DLT 251 245], [2018 HLR 3 413], [2019 CRI LJ 218],[2018 (4) RCR (Criminal) 30], [2018 SCC OnLine Del 9747],
Other Sources :
https://indiankanoon.org/doc/80568294/
https://www.casemine.com/judgement/in/5b44dfac9eff431bb54655a9
Index of PWDV Act cases here. Index of Maintenance cases u/s 144 BNSS (125 Cr.P.C.) here.
State Of Goa Vs Jose Maria Albert Vales @ Robert Vales on 18 Aug 2017
2-Judge bench held that without prima facie opinion in a complaint made otherwise than a police complaint, invoking of perjury u/s 340 CrPC or 341 CrPC is indefensible.
From Para 58,
58. We are thus of the firm opinion that a Trial Magistrate, on receipt of a complaint under Section 340 and/or Section 341 of the Code, if there is a preliminary inquiry and adequate materials in support of the considerations impelling action under the above provisions are available, would be required to treat such complaint to constitute a case, as if instituted on police report and proceed in accordance with law. However, in absence of any preliminary inquiry or adequate materials, it would be open for the Trial Magistrate, if he genuinely feels it necessary, in the interest of justice and to avoid unmerited prosecution to embark on a summary inquiry to collect further materials and then decide the future course of action as per law. In both the eventualities, the Trial Magistrate has to be cautious, circumspect, rational, objective and further informed with the overwhelming caveat that the offence alleged is one affecting the administration of justice, requiring a responsible, uncompromising and committed approach to the issue referred to him for inquiry and trial, as the case may be. In no case, however, in the teeth of Section 343(1), the procedure prescribed for cases instituted otherwise than on police report would either be relevant or applicable qua the complaints under Section 340 and/or 341 of the Cr.P.C.
And from Final Para,
60. In view of the determination as above, the approach of the High Court is wholly indefensible, as in the face of Section 343(1) of the Cr.P.C., the procedure prescribed for cases instituted otherwise than on police report is not attracted qua a complaint under Section 340 and/or Section 341 of the Code. Even assuming that the Trial Magistrate had examined few witnesses in support of the complaint, it was in the form of a summary inquiry, to be satisfied as to whether the materials on record would justify the framing of charge against the respondent or not and nothing further. Any other view would fly in the face of the ordainment of Section 343(1) of the Cr.P.C. and thus cannot receive judicial imprimatur. The impugned judgment of the High Court in quashing the charge framed by the Trial Magistrate and remanding the case to him to follow the procedure outlined for cases, instituted otherwise than on police report, under Chapter XIX-B is on the face of it unsustainable in law and on facts. It is thus set aside. The appeals are allowed. The Trial Magistrate would proceed from the stage of framing of charge, strictly in compliance of the letter and spirit of the precept contained in Section 343(1) of the Code. We make it clear that we have not offered any observation on the merits of the charge and the Trial Court would further the proceedings in accordance with law.
Citations : [2017 SCC ONLINE SC 1021], [2017 ALLCC 101 330], [2017 CCR SC 4 28], [2017 JCC 4 2245], [2017 RCR CRIMINAL 3 981], [2017 SCALE 9 527], [2017 SCC ONLINE SC 1021]
Other Sources :
https://indiankanoon.org/doc/194410529/
https://www.casemine.com/judgement/in/5a65cbaf4a93263320778706
Index of Perjury Case laws is here.
Arnab Manoranjan Goswami Vs State of Maharashtra and Ors on 09 Nov 2020
Division Bench of Bombay High Court, while denying interim protection from arrest to Arnab Goswami, held that,
From Para 45,
45. The principle stated therein will equally apply to the exercise of this Court’s power under Article 226 of the Constitution of India and section 482 of the Code of Criminal Procedure while considering the applications for bail since the petitioner is already in Judicial custody. The legislature has provided specific remedy under Section 439 Cr.P.C. for applying for regular bail. Having regard to the alternate and efficacious remedy available to the petitioner under section 439 of the Code of Criminal Procedure, this Court has to exercise judicial restraint while entertaining application in the nature of seeking regular bail in a petition filed under Article 226 of the Constitution of India read with section 482 of Code of Criminal Procedure.
and from Para 70,
70. In our opinion, the petitioner has an alternate and efficacious remedy under section 439 of the Code of Criminal Procedure to apply for regular bail. At the time of concluding the hearing of Applications, we had made it clear that if the petitioner, if so advised, to apply for regular bail under section 439 of the Code of Criminal Procedure before the concerned Court, then, in that case, we have directed the concerned Court to decide the said
application within four days from filing of the same.
Here is the Bail application
Balaji Baliram Mupade Vs State of Maharashtra on 29 Oct 2020
Supreme Court, again, highlighted the need of delivering judgments at the earliest, as the “problem is compounded where the result is known but not the reasons.”
From Para 3,
3. Further, much later but still almost two decades ago, this Court in Anil Rai v. State of Bihar – 2001 (7) SCC 318 deemed it appropriate to provide some guidelines regarding the pronouncement of judgments, expecting them to be followed by all concerned under the mandate of this Court. It is not necessary to reproduce the directions except to state that normally the judgment is expected within two months of the conclusion of the arguments, and on expiry of three months any of the parties can file an application in the High Court with prayer for early judgment. If, for any reason, no judgment is pronounced for six months, any of the parties is entitled to move an application before the then Chief Justice of the High Court with a prayer to re-assign the case before another Bench for fresh arguments.
From Para 10,
10. We must note with regret that the counsel extended through various judicial pronouncements including the one referred to aforesaid appear to have been ignored, more importantly where oral orders are pronounced. In case of such orders, it is expected that they are either dictated in the Court or at least must follow immediately thereafter, to facilitate any aggrieved party to seek redressal from the higher Court. The delay in delivery of judgments has been observed to be a violation of Article 21 of the Constitution of India in Anil Rai’s case (supra) and as stated aforesaid, the problem gets aggravated when the operative portion is made available early and the reasons follow much later.
Citations :
Other Sources :
Pinakin Mahipatray Rawal Vs State of Gujarat on 9 Sep 2013
Division bench of Supreme Court held that,
From Para 306,
26. Section 306 refers to abetment of suicide. It says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. The action for committing suicide is also on account of mental disturbance caused by mental and physical cruelty. To constitute an offence under Section 306, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused. Prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. But for the alleged extra marital relationship, which if proved, could be illegal and immoral, nothing has been brought out by the prosecution to show that the accused had provoked, incited or induced the wife to commit suicide.
From Para 28, exoneration of husband,
28. Suicide note completely exonerates A-1, which states that he was not responsible for death of the deceased. On the other hand, the deceased described herself as extremely selfish, egoist and, therefore, not a match for A-1. She entertained the belief that her husband A-1 was in love with A-2 and wanted to marry A-2. Note states it was for their happiness she had decided to end her life. She also wanted to have the marriage of A-1 and A-2 solemnized with pomp and gaiety. On reading the suicide note, one can infer that the deceased was so possessive of her husband, and was always under an emotional stress that she might lose her husband. Too much of possessiveness could also lead to serious emotional stress, over and above the fact that she had one abortion and her daughter died after few days of birth. No evidence is forthcoming in this case to show that A-2 ever evinced any interest to marry A-1. On the other hand, during the subsistence of the alleged relationship, A-2 herself got married.
Citations : [2013 CRLJ SC 44482013 AIOL 5932013 CRIMES SC 4 2952013 CRIMES SC 4 1102013 SCC 10 482013 AIR SC 52192013 RCR CRIMINAL SC 4 2712013 SLT 7 7062014 AIR SC 3312013 SCALE 11 1982013 JT 12 3572013 SUPREME 6 3662014 JLJR SC 1 3902013 SCC CRI 3 8012013 SCC CIV 4 6162013 SCC ONLINE SC 8142013 AIC 130 292013 CRILJ 44482014 PLJR 1 5112013 BOMCR CRI 4 5222013 UC 3 19352013 DMC 3 2452014 ALT CRL AP 1 2582013 ALD CRI 2 7552013 MLJ CRI 3 7002013 OLR 2 8672013 KHC 3 8102013 AD SC 10 452013 ABR 6 1792014 SCJ 1 5262013 RCR CRIMINAL 4 2712014 JLJR 1 3902013 CRI LJ 44482013 MLJ CRL 3 7002013 AIR SCW 5219
Other Sources :
https://indiankanoon.org/doc/170814796/
https://www.casemine.com/judgement/in/5609af2de4b0149711415bb9
https://www.scconline.com/blog/post/2015/02/25/husband-s-extra-marital-relationship-does-not-amount-to-cruelty/
K.V Prakash Babu Vs State of Karnataka on 22 Nov 2016
Supreme Court held that the necessary ingredients to make out a IPC 306 offence are missing in the case.
From Para 15, Mental Cruelty,
15. The concept of mental cruelty depends upon the milieu and the strata from which the persons come from and definitely has an individualistic perception regard being had to one’s endurance and sensitivity. It is difficult to generalise but certainly it can be appreciated in a set of established facts. Extra-marital relationship, per se, or as such would not come within the ambit of Section 498-A IPC. It would be an illegal or immoral act, but other ingredients are to be brought home so that it would constitute a criminal offence. There is no denial of the fact that the cruelty need not be physical but a mental torture or abnormal behaviour that amounts to cruelty or harassment in a given case. It will depend upon the facts of the said case. To explicate, solely because the husband is involved in an extra-marital relationship and there is some suspicion in the mind of wife, that cannot be regarded as mental cruelty which would attract mental cruelty for satisfying the ingredients of Section 306 IPC.
From Para 17, Final nail in the coffin,
17. In the instant case, as the evidence would limpidly show, the wife developed a sense of suspicion that her husband was going to the house of Ashwathamma in Village Chelur where he got involved with Deepa, daughter of Ashwathamma. It has come on record through various witnesses that the people talked in the locality with regard to the involvement of the appellant with Deepa. It needs to be noted that Anjanamma, being not able to digest the humiliation, committed suicide. The mother and the brother of Anjanamma paved the same path. In such a situation, it is extremely difficult to hold that the prosecution has established the charge under Section 498-A IPC and the fact that the said cruelty induced the wife to commit suicide. It is manifest that the wife was guided by the rumour that aggravated her suspicion which has no boundary. The seed of suspicion planted in mind brought the eventual tragedy. But such an event will not constitute the offence or establish the guilt of the appellant-accused under Section 306 IPC.
Citations : [2017 SCC 11 176], [2017 SCC CRI 4 242], [2016 SCC ONLINE SC 1363], [2016 AIR SC 5430], [2016 SCR 11 509], [2016 CRIMES 4 184], [2017 CRI LJ 264], [2017 AIC 169 211], [2017 KLT 1 125], [2017 KCCR 1 673], [2017 ECRN 1 1]
Other Sources :
https://indiankanoon.org/doc/33506004/
https://www.casemine.com/judgement/in/5837160c53bee74f64c25ebc
Bhagwan Das Vs Kartar Singh and Ors on 14 May 2007
Supreme Court held that,
From Paras 15 and 16,
15. In our opinion the view taken by the High Court is correct. It often happens that there are disputes and discords in the matrimonial home and a
wife is often harassed by the husband or her in-laws. This, however, in our opinion would not by itself and without something more attract Section 306 IPC read with Section 107 IPC.
16. However, in our opinion mere harassment of wife by husband due to differences per se does not attract Section 306 read with Section 107 IPC, if
the wife commits suicide. Hence, we agree with the view taken by the High Court. We, however, make it clear that if the suicide was due to demand of
dowry soon before her death then Section 304B IPC may be attracted, whether it is a case of homicide or suicide. Vide Kans Raj vs. State of Punjab & Ors. 2000(5) SCC 207, Satvir Singh & Ors. vs. State of Punjab & Anr. 2001(8) SCC 633, Smt. Shanti & Anr. vs. State of Haryana AIR 1991 SC 1261.
Citations : [2007 AIR SC 2045], [2007 SUPREME 3 1073], [2009 ANJ SC 2 160], [2007 CRLJ SC 3420], [2007 SCC 11 205], [2007 SCALE 7 167], [2007 JT 7 36], [2007 SCR 6 474], [2007 AIOL 570], [2007 AIR SC 3107], [2007 AIR SCW 3107]
Other Sources :
https://indiankanoon.org/doc/366677/
https://www.casemine.com/judgement/in/5767b129e691cb22da6d54ae
https://www.latestlaws.com/index.php/latest-caselaw/2007/may/2007-latest-caselaw-439-sc/
Gurcharan Singh vs State of Punjab on 1 Oct 2020
3-Judge Bench of Supreme Court held that, for IPC 306 to be made out, necessary ingredients must be satisfied.
From Para 6, Learn the art and craft of Trail Courts in India, assuming certain sections apply to accused in the face of no direct evidence. Some of them are fit-for-nothing fellows…
6. The Trial Court then posed a question to itself as to why a young lady with two small children would commit suicide unless she has been pushed to do so, bythe circumstances in the matrimonial home. It was then observed that the expectation of a married woman will be love and affection and financial security at thehands of her husband and if her hopes are frustrated by the act or by wilful negligence of the husband, it would constitute abetment within the meaning of section107 IPC, warranting conviction under section 306 IPC. With such reasoning, the Trial Court concluded that Shinder Kaur committed suicide when her hopes were frustrated by the act of her husband or alternatively, by his wilful neglect. Thus, the Court itself wasuncertain on the nature of the act to be attributed to the appellant. Moreover, even while noting that no direct evidence of cruelty against the husband and thein-laws is available, the learned Court assumed that section 306 IPC can be applied against the appellant. With such conjecture, while acquitting all threeaccused of the charged crime under section 304B and 498A of IPC, the husband was convicted under section 306 IPC.
From Para 11, Rebutting the callous nature in which Trial Court used conjectures to lay conviction
11. Insofar as the possible reason for a young married lady with two minor children committing suicide, in the absence of evidence, conjectures cannot be drawn that she was pushed to take her life, by the circumstances and atmosphere in the matrimonial home. What might have been the level of expectation of the deceased from her husband and in-laws and the degree of her frustration, if any, is not found through any evidence on record. More significantly, wilful negligence by the husband could not be shown by the prosecution.
Then from Para 15,
15. As in all crimes, mens rea has to be established. To prove the offence of abetment, as specified under Sec 107 of the IPC, the state of mind to commit a particular crime must be visible, to determine the culpability. In order to prove mens rea, there has to be something on record to establish or show that the appellant herein had a guilty mind and in furtherance of that state of mind, abetted the suicide of the deceased. The ingredient of mens rea cannot be assumed to be ostensibly present but has to be visible and conspicuous. However, what transpires in the present matter is that both the Trial Court as well as the High Court never examined whether appellant had the mens rea for the crime, he is held to have committed. The conviction of Appellant by the Trial Court as well as the High Court on the theory that the woman with two young kids might have committed suicide, possibly
because of the harassment faced by her in the matrimonial house, is not at all borne out by the evidence in the case. Testimonies of the PWs do not
show that the wife was unhappy because of the appellant and she was forced to take such a step on his account.
From Para 19, Supreme Court declared that Trail Court and High Court speculated. How horrible !!!
19. Proceeding with the above understanding of the law and applying the ratios to the facts in the present case, what is apparent is that no overt act or illegal omission is seen from the appellant’s side, in taking due care of his deceased wife. The evidence also does not indicate that the deceased faced persistent harassment from her husband. Nothing to this effect is testified by the parents or any of the other prosecution witnesses. The Trial Court and the High Court speculated on the unnatural death and without any evidence concluded only through conjectures, that the appellant is guilty of abetting the suicide of his wife.
Citations :
Other Sources :
https://indiankanoon.org/doc/167656481/
