State of Punjab Vs Jagdev Singh Talwandi on 16 Dec 1983

Posted on January 14, 2021 by ShadesOfKnife

A 5-judge Constitutional bench of Supreme Court deprecated the “practice increasingly adopted by the High Courts, of pronouncing the final order without a reasoned judgment“.

We would like to take this opportunity to point out that serious difficulties arise on account of the practice increasingly adopted by the High Courts, of pronouncing the final order without a reasoned judgment. It is desirable that the final order which the High Court intends to pass should not be announced until a reasoned judgment is ready for pronouncement. Suppose, for example, that a final order without a reasoned judgment is announced by the High Court that a house shall be demolished, or that the custody of a child shall be handed over to one parent as against the order, or that a person accused of a serious charge is acquitted, or that a statute is unconstitutional or, as in the instant case, that a detenu be released from detention. If the object of passing such orders is to ensure speedy compliance with them, that object is more often defeated by the aggrieved party filing a special leave petition in this Court against the order passed by the High Court. That places this Court in a predicament because, without the benefit of the reasoning of the High Court, it is difficult for this Court to allow the bare order to be implemented. The result inevitably is that the operation of the order passed by the High Court has to be stayed pending delivery of the reasoned judgment.
It may be thought that such orders are passed by this Court and therefore there is no reason why the High Courts should not do the same. We would like to point out respectfully that the orders passed by this Court are final and no appeal lies against them. The Supreme Court is the final Court in thehierarchy of our courts. Besides, orders without a reasoned judgment are passed by this Court very rarely, under exceptional circumstances. Orders passed by the High Court are subject to the appellate jurisdiction of this Court under Article 136 of the Constitution and other provisions of theconcerned statutes. We thought it necessary to make these observations in order that a practice which is not very desirable and which achieves no useful purpose may not grow out of its present infancy.

Indiankanoon version:

State of Punjab Vs Jagdev Singh Talwandi on 16 Dec 1983 (Indiankanoon)

Casemine version:

State of Punjab Vs Jagdev Singh Talwandi on 16 Dec 1983 (Casemine)

Citations : [1984 CRLJ SC 177], [1984 SCC 1 596], [1984 CRIMES SC 1 224], [1983 SCALE 2 942], [1984 SCC CRI 135], [1984 SCR 2 50], [1984 AIR SC 444]

Other Sources :

https://indiankanoon.org/doc/1158281/

https://www.casemine.com/judgement/in/5609ac0be4b014971140dde1#

Jaisingh Agarwal and Anr Vs State of Chhattisgarh and Anr on 27 Oct 2020

Posted on January 13, 2021 by ShadesOfKnife

From Para 14,

14. On a careful reading of the aforesaid provision, it is quite vivid that the Court of Session can take cognizance of any offence as a Court of original
jurisdiction except as otherwise expressly provided by the Code or by any other law for the time being in force only if the case has been committed to it by a Magistrate.

From Para 28,

28.From the aforesaid pronouncement of law rendered by the Constitution Bench of the Supreme Court, it is quite vivid that under the provisions of the Prevention of Corruption Act, the Special Judge is not prohibited from exercising power and jurisdiction under Section 156(3) of the Code when there is no exclusion of power in respect of the point raised.

hence, from Paras 32 and 33,

32.Thus, from the aforesaid proposition of law rendered by the Supreme Court in A.R. Antulay (supra) and the M.P. High Court in Anand Swaroop Tiwari (supra), it is quite vivid that the Special Court constituted under Section 14 of the Act of 1989 is the criminal court of original jurisdiction and is not governed by Section 193 of the Code, and the Special Court can take cognizance in any of the circumstances referred to in Section 190 of the Code and is governed by Chapters XV & XVI of the Code and such other provisions of the Code which are not inconsistent with the status and functions as Courts of original jurisdiction. Therefore, the Special Courts constituted under the Act of 1989 will also have power and jurisdiction to invoke Section 156(3) of the Code to direct investigation in exercise of power conferred, to the Station House Officer subject to fulfillment of making two prior applications under Section 154(1) and thereafter under Section 154(3) of the Code by the complainant. As such, I do not find any merit in the submission of learned Senior Counsel for the petitioners that the Special Judge under SC & ST Act has no power and jurisdiction to invoke Section 156(3) of the Code and to direct registration of FIR and investigation. Such a submission being meritless and substance-less deserves to be and is accordingly rejected.
33. Having answered question No.1 against the petitioners and in favour of respondent No.2, reverting to the second question whether the learned Special Judge is justified in invoking power and jurisdiction under Section 156(3) of the Code after finding compliance with the provisions contained in subsections (1) & (3) of Section 154 of the Code, it would be necessary to point out here that in order to make a duly constituted application for invoking the jurisdiction of the learned Special Judge under Section 156(3) of the Code, compliance of subsections (1) & (3) of Section 154 of the Code would be absolutely necessary rather it would be sine-qua-non for making the application under Section 156(1) of the Code maintainable.

From Paras 35 and 36,

35.From the focused perusal of Section 154(1) of the Code, it is quite vivid that every information relating to commission of cognizable offence, if given orally to in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant and every such information given in writing or reduced in writing as above-said shall be signed by person giving it and substance thereof shall be entered into book kept by such officer. Subsection (3) of Section 154 of the Code provides the procedure to be followed by informant, if officer in charge of a police station refuses to record the information referred to Section 154(1) of the Code and mandates that substance of such information in writing may be sent by post, to the Superintendent of Police concerned, who if satisfied that such information discloses commission of cognizable offence either investigate himself or direct an officer subordinate to him to investigate in the manner provided by the Code.
36.Their Lordships of the Supreme Court in the matter of Priyanka Srivastava (supra) laid down duty and approach of Magistrate while exercising power under Section 156(3) of the Code and highlighted preconditions to be satisfied to maintain the application under Section 156(3). It has also been held that power under Section 156(3) warrants application of judicial mind and there has to be prior application under Section 154(1) and 154(3) of the Code.

Jaisingh Agarwal and Anr Vs State of Chhattisgarh and Anr on 27 Oct 2020

Zaid Pathan and Ors Vs State of M.P. on 22 Dec 2020

Posted on January 9, 2021 by ShadesOfKnife

Even though the MP High Court held the law point correctly, IMHO, the said FIR which was saved by this Court, has no future, unless it was treated as a FIR registered u/s 154 CrPC, which is what the case is here.

From Para 15 16

15/ The submission of counsel for the petitioners is that as per the procedure prescribed in Section 195 of the Cr.P.C., for the purpose of the offence under Section 188 of the IPC a public servant is required to file a complaint before the competent court and, therefore, the FIR cannot be registered.
16/ Such an argument advanced by counsel for the petitioners is devoid of any merit. A bare reading of Section 195(1) Cr.P.C. reveals that the provisions contained in the sub-section are attracted at the stage of taking cognizance. There is no bar under Section 195 of the Cr.P.C. in respect of registration of FIR, therefore, FIR for an offence under Section 188 of the IPC can be registered by the police and after investigation on the basis of the FIR and the material collected during the course of investigation, a competent public servant can file the complaint before the concerned court. What is barred under Section 195 of the Cr.P.C. is that after investigating the offence under Section 188 of the IPC, the police officer cannot file a final report in the Court and the Court cannot take cognizance on that final report, as at that stage the bar contained in Section 195 of the Cr.P.C. comes
into operation.

Zaid Pathan and Ors Vs State of M.P. on 22 Dec 2020

Citations :

Other Sources :

https://www.indianemployees.com/judgments/details/zaid-pathan-and-others-vs-state-of-m-p

Umedbhai Jadavbhai Vs State of Gujarat on 16 Dec 1977

Posted on January 6, 2021 by ShadesOfKnife

Definition of Circumstantial evidence established by Supreme Court in this case. This corresponds to Sec 106 of Evidence Act.

From Paras 7 and 8,

7. It is well-established that in a case resting on circumstantial evidence all the circumstances brought out by the prosecution, must inevitably and exclusively point to the guilt of the accused and there should be no circumstance which may reasonably be considered consistent with the innocence of the accused. Even in the case of circumstantial evidence, the Court will have to bear in mind the cumulative effect of all the circumstances in a given case and weigh them as an integrated whole. Any missing link may be fatal to the prosecution case.
8. We will first consider whether the High Court was justified in entertaining the appeal and secondly in interfering with the order of acquittal. Entertainment of the appeal by the High Court against an acquittal will be justified only under special circumstances. They exist in this case. We find that the Sessions Judge has committed a manifest error of record when he held that “there was a pool of blood in the outer room and trail of blood-stains leading from the outer room to the inner room”. We do not find a tittle of evidence, oral or documentary to substantiate the above statement in the judgment of the Sessions Judge relying on which he came to the conclusion “that the victim was stabbed in the outer room while she was running from the outer room into the inner room”. The Sessions Judge fell into a grave error by coming to this grossly erroneous conclusion absolutely unsupported by any evidence.

Umedbhai Jadavbhai Vs State of Gujarat on 16 Dec 1977 (Indiankanoon)

Casemine version

Umedbhai Jadavbhai Vs State of Gujarat on 16 Dec 1977 (Casemine)

Citations : [1978 AIR SC 424], [1978 GLR 19 268], [1978 SCC 1 228], [1978 SCR 2 471], [1978 CAR 57], [1978 SCC CRI 108], [1978 CRLJ SC 489], [1978 CRLR SC 72]

Other Sources :

https://indiankanoon.org/doc/1083864/

https://www.casemine.com/judgement/in/5609abcae4b014971140d562

https://india.lawi.asia/umedbhai-jadavbhai-v-the-state-of-gujarat/

Bhadresh Bipinbhai Sheth Vs State of Gujarat and Anr on 1 Sep 2015

Posted on January 2, 2021 by ShadesOfKnife

Another wonderful judgment around anticipatory bail.

From Para 23,

23. The principles which can be culled out, for the purposes of the instant case, can be stated as under:
(i) The complaint filed against the accused needs to be thoroughly examined, including the aspect whether the complainant has filed a false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law.
(ii) The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases, the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court.
(iii) It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage.
(iv) There is no justification for reading into Section 438 CrPC the limitations mentioned in Section 437 CrPC. The plentitude of Section 438 must be given its full play. There is no requirement that the accused must make out a “special case” for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by Section 438 CrPC to a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.
(v) The proper course of action on an application for anticipatory bail ought to be that after evaluating the averments and accusations available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor the court may either reject the anticipatory bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same court for cancellation or modifying the conditions of anticipatory bail at any time if liberty granted by the court is misused. The anticipatory bail granted by the court should ordinarily be continued till the trial of the case.
(vi) It is a settled legal position that the court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the Public Prosecutor or the complainant, on finding new material or circumstances at any point of time.
(vii) In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail.
(viii) Discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations.
(ix) No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case.
(x) We shall also reproduce para 112 of the judgment wherein the Court delineated the following factors and parameters that need to be taken into consideration while dealing with anticipatory bail:
(a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
(c) The possibility of the applicant to flee from justice;
(d) The possibility of the accused’s likelihood to repeat similar or other offences;
(e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because over-implication in the cases is a matter of common knowledge and concern;
(h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused in entitled to an order of bail.

Bhadresh Bipinbhai Sheth Vs State of Gujarat and Anr on 1 Sep 2015

Citations : [2016 ALT CRL AP 1 122], [2016 GLR 1 798], [2016 SCC 1 152], [2015 AIR SC 3090], [2015 ACR SC 3 3013], [2015 AD SC 9 511], [2015 ALLCC 91 215], [2015 ALLMR CRI 4116], [2015 BOMCR CRI 4 412], [2015 CCR SC 3 453], [2015 CRIMES SC 4 298], [2015 JCC 4 2603], [2015 JLJR 4 57], [2015 NCC 3 104], [2015 PLJR 4 218], [2015 RCR CRIMINAL 4 199], [2015 RLW SC 4 3551], [2015 SCALE 9 403], [2015 SCJ 9 734], [2015 UC 3 1761], [2016 SCC CRI 1 240], [2015 SCC ONLINE SC 771], [2015 GUJ LH 3 165], [2015 AIC 154 1]

Other Sources :

https://indiankanoon.org/doc/180463386/

https://www.casemine.com/judgement/in/5790b344e561097e45a4e3ca

Bhadresh Bipinbhai Sheth v. State of Gujarat & Another

Namathoti Sankaramma Vs State of A.P. and Ors on 15 Sep 2000

Posted on January 1, 2021 by ShadesOfKnife

This is a case decided by single-judge bench of AP High Court regard a case involving CrPC 210.

From Paras 13, 14 and 15,

13. Sub-section (1) of Section 210 of Cr.P.C. is designed to ensure that the enquiry or trial in the case instituted on the basis of a complaint and enquiry or trial on the basis of a police report in respect of the same incident do not proceed tangentially but proceed in tandem. To enable the Magistrate to monitor the enquiry or trial under these two different streams to ensure simultaneously such enquiry or trial, Sub-section (1) of Section 210 of Cr.P.C. provides that when the case is instituted on the basis of a complaint, if it is brought to the notice of the Magistrate during the course of enquiry or trial on the basis of the said complaint that the investigation by the police in relation to the same offence is under way, the Magistrate shall stay the proceedings of such enquiry or trial and call for a report on the matter from the police officer conducting investigation. The condition for applicability of Section 210(1) of Cr.P.C. is that there must be commonality of the ‘offence’ in the subject of investigation by the police and the subject of enquiry by the Magistrate in the complaint case. But considering the context and the object of the provision, the word ‘offence’ used in Sub-section (1) of Section 210 of Cr.P.C. cannot be construed to refer to a particular provision of law defining certain offence. But it must be deemed to denote the incident or transaction in which an offence or offences have been committed.
14. However, under Sub-section (2) of Section 210 of Cr.P.C., the word ‘offence’ appears to have been used to indicate a particular transgression labelled as a particular offence under IPC or any other law. It is obvious from the fact that normally when the Court takes cognizance of an offence, it does not refer to taking cognizance of the whole incident in which offences are committed but to particular violations, which have been defined as specific offences. Inasmuch as the object of the provision appears to be as stated above to avoid enquiries or trials sought to be initiated on two different footings, namely, the complaint and the police report on parallel tracks leading to conflicting results, obviously it is the commonality of the
incident which are the subject matters of the complaint and the first information report under investigation by the police and not the labels of a particular transgression of law affixed by the complainant in the complaint or in the first information report which, if it were not so, the provisions of Section 210 of Cr.P.C. can be evaded by a mere device of labelling the transaction with different offences. As stated above in this case, the stage of staying the proceedings in the complaint case under Sub-section (1) of Section 210 of Cr.P.C., has passed and the stage for calling for a report from the police has also been passed inasmuch as the police report under Section 173 of Cr.P.C. has been filed already. The provision in Sub-section (1) of Section 210 of Cr.P.C. has been made as stated above for preventing parallel enquiries or trials. Where a question as to application of the provisions under Section 210 of Cr.P.C. arises at certain stage of enquiry in the complaint case or after the report under Section 173 of Cr.P.C. has been filed by the police, it cannot be said that because the stage for invoking Sub-section (1) of Section 210 of Cr.P.C. has crossed, the other provisions under it are not applicable.
15. For application of Sub-section (2) of Section 210 of Cr.P.C., two conditions are required to be satisfied, (i) On the report of the police under Section 173 of Cr.P.C., cognizance of some offences has been taken by the Magistrate; and (ii) Any person who is an accused in the complaint case is among the accused against whom the Magistrate has taken cognizance of an offence on the basis of the police report.

From Paras 21 and 22,

21. Section 210(3) Cr.P.C., would apply in two situations (i) Where the police report does not relate to ‘any’ accused in the complaint case, and (ii) if the Magistrate does not take cognizance of any offence on the police report at all. The word ‘any’ with reference to the accused and the offence in Section 210(3) and for that matter in Sub-section (2) of Section 210 of Cr.P.C. would only mean ‘one or more’ and not ‘all’. The Judgment of the Orissa High Court supra proceeds on the basis that Section 210(3) of Cr.P.C., will be applicable where all the offences and all the accused are not common in both the cases.
22. In this case as seen above, in view of the application of the provision of Section 210(2) Cr.P.C., an enquiry on the basis of a police report and the complaint case for the purpose of committal proceedings was required to be conducted together as if both were instituted on a police report.

Finally, from Para 25,

25. The learned Sessions Judge ought to have examined the committal order to ensure whether the requirements under Sub-section (2) of Section 210 Cr.P.C. have been complied with or not. It was necessary for him to ascertain whether the learned Magistrate while enquiring into the matter has treated the material available in the com- plaint case as if it was material brought forth on record in the police report case. This was not done. I am, therefore, satisfied that there was no substantial compliance of Section 210(2) Cr.P.C. For the purpose of committing the case not only the material available in the police report has to be considered, but the material available in the complaint case also requires to be considered as it if it is material placed before the Court in the police report case.

Namathoti Sankaramma Vs State of A.P. and Ors on 15 Sep 2000

Casemine version:

Namathoti Sankaramma Vs State of A.P. and Ors on 15 Sep 2000 Casemine

Citations : [2000 ALD CRI 2 588], [2001 RCR CRIMINAL 2 323], [2000 SCC ONLINE AP 772], [2001 ALT CRI 1 17], [2000 SUP CRLJ AP 4831]

Other Sources :

https://indiankanoon.org/doc/678335/

https://www.casemine.com/judgement/in/5608f7c8e4b0149711140c35

Bhushan Kumar and Anr Vs State (NCT of Delhi) and Anr on 4 April 2012

Posted on December 29, 2020 by ShadesOfKnife

A 2-judge Division Bench held that Quash petition is maintainable even though this instant matter is dismissed on merits.

From Para 5,

5) The questions which arise for consideration in these appeals are:
(a) Whether taking cognizance of an offence by the Magistrate is same as summoning an accused to appear?
(b) Whether the Magistrate, while considering the question of summoning an accused, is required to assign reasons for the same?

From Para 7,

7) In S.K. Sinha, Chief Enforcement Officer vs. Videocon International Ltd. & Ors., (2008) 2 SCC 492, the expression “cognizance” was explained by this Court as it merely means“become aware of” and when used with reference to a court or a Judge, it connotes “to take notice of judicially”. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons.

From Para 8 (Very Imp)

8) Under Section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code.

From Para 9,

9) A summon is a process issued by a Court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in Court. A person who is summoned is legally bound to appear before the Court on the given date and time. Willful disobedience is liable to be punished under Section 174 IPC. It is a ground for contempt of court.

From Paras 10 and 11, (Very IMP)

10) Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued.
11) Time and again it has been stated by this Court that the summoning order under Section 204 of the Code requires no explicit reasons to be stated because it is imperative that the Magistrate must have taken notice of the accusations and applied his mind to the allegations made in the police report and the materials filed therewith.

Bhushan Kumar and Anr Vs State (NCT of Delhi) and Anr on 4 April 2012

Citations : [2012 RCR CRIMINAL SC 2 794], [2012 SUPREME 2 699], [2012 BOMCR CRI SC 4 138], [2012 SLT 3 221], [2012 AIR SC 1747], [2012 SCALE 3 191], [2012 AIOL 161], [2012 CRIMES SC 2 101], [2012 CRLJ SC 2286], [2012 AIR SC 2476], [2012 SCALE 4 191], [2012 SCC 5 424], [2012 SCC CRI 2 872], [2012 JT 4 127], [2012 SCC ONLINE SC 325], [2012 AIC 113 116], [2012 UC 2 1121], [2012 JCR SC 2 269], [2012 ACR SC 2 1514], [2012 LW CRL 2 33], [2012 PLJR 2 422], [2012 JLJR 2 307], [2012 RLW SC 3 2467], [2012 SCC 5 422], [2012 DRJ 130 225], [2012 ALT CRI SC 3 223], [2012 AIR SCW 2476], [2012 DLT SC 189 252]

Other Sources :

https://indiankanoon.org/doc/71570434/

https://www.casemine.com/judgement/in/5609af1de4b0149711415a6b

Bhagirath Vs Delhi Administration on 16 April, 1985

Posted on December 20, 2020 by ShadesOfKnife

A highly technical issue is resolved in affirmative, by the 5-judge Constitutional Bench by interpreting a term, ‘TERM‘.

Whether persons sentenced to imprisonment for life entitled to set-off their under trial period of detention against their sentence?

The Bench said,

Life is uncertain. In more ways than one. Who knows what good may come tomorrow and how many good tomorrows there are still to go ? But , philosophical digressions apart , especially optimistic , the fact that the term of life is of an uncertain duration does not justify the conclusion that the sentence of imprisonment for life is not for a term. The relevant question and , the only one , to ask under section 428 is: Has this person been sentenced to imprisonment for a term ? For the sake of convenience , the question may be split into two parts. One, has this person been sentenced to imprisonment ? And, two, is the imprisonment to which he has been sentenced an imprisonment for a term ? There can possibly be no dispute that a person sentenced to life imprisonment is sentenced to imprisonment. Then , what is the term to which he is sentenced ? The obvious answer to that question is that term to which he has been sentenced is the term of his life. Therefore , a person who is sentenced to life imprisonment is sentenced to imprisonment for term.

In conclusion,

We have considered with great care the reasoning upon which the decision in Kartar Singh proceeds. With respect, we are unable to agree with the decision. We have already discussed why ’imprisonment for life is imprisonment for a term , within the meaning of section 428. We would like to
add that we find it difficult to agree that the expressions ’imprisonment for life’ and imprisonment for a term’ are used either in the Penal Code or in the Criminal Procedure Code in contra-distinction with each other. Sections 304 , 305 , 307 and 391 of the penal Code undoubtedly provide that persons quilty of the respective offences shall be punished with imprisonment for life or with imprisonment for a term not exceeding a certain number of years. But , that is the only manner in which the Legislature could have expressed its intention that persons who are guilty of those offences shall be punished with either of the sentences mentioned in the respective sections. The circumstance on which the learned judges have placed reliance in Kartar Singh , do not afford any evidence , intrinsic or otherwise’ of the use of the two expressions in contra-distinction with each other. Two or more expressions are often used in the same section in order to exhaust the alternatives which are available to the Legislature. That does not mean that there is , necessarily , an antithesis between those expressions.
The reasoning in Kartar Singh that an order of remission does not interfere with the sentence recorded by the court but merely affects the execution of the sentence, stands answered by the interpretation which we have put upon the language of section 428 that persons sentenced to imprisonment for life are sentenced to imprisonment for a term. It is not because of remission that a sentence of life imprisonment becomes an imprisonment for a term.
We have also already answered the last of the reasons given in Kartar Singh that the question is not whether the beneficent provision contained in section 428 should be extended to life convicts on equitable considerations. We enter a most respectful caveat. Equity sustains law and the twain must meet. They cannot run in parallel streams. Equitable considerations must have an important place in the construction of beneficent provisions, particularly in the field of criminal law. To exclude such considerations is to denude law’s benevolence Or its true and lasting content. Lastly , the view expressed by the Joint Committee in its Report does not yield to the inference that the “mischief sought to be remedied has no relevance where gravity of offence requires the imposition of imprisonment for life”. As we have indicated earlier , graver the crime , longer the sentence and , longer the
sentence , greater the need for set-offs and remissions. Punishments are no longer retributory. They are reformative.
The order passed by this Court in Sukhlal Hansda related to the cases of 24 prisoners who were sentenced to life imprisonment. Most of those prisoners had undergone imprisonment for a period which , after taking account the remissions earned by them , exceeded fourteen years. It was
held by this Court that , for the purpose of considering whether the cases of those prisoners should be examined for premature release under the relevant provisions of the West Bengal Jail Manual , there was no reason why the period of imprisonment undergone by them as undertrial prisoners
should not be taken into account. The Court directed that the cases of the prisoners should be considered by the State Government , both for the purpose of setting off the period of detention undergone by them as undertrial prisoners and for taking into account the remissions earned by them. The order passed by the Court does not discuss the point which arises before us though , the observations made therein are consistent more with the view which we have taken than with the view taken in Kartar Singh.

Bhagirath Vs Delhi Administration on 16 April, 1985

Citations : [1985 SCC CRI 280], [1985 SCALE 1 719], [1985 AIR SC 1050], [1985 SCC 2 580], [1985 CRIMES SC 1 832], [1985 SCR 3 743], [1985 CRILJ 1179], [1985 AWC 11 510], [1985 BOMLR 85 400], [1985 ACR 340]

Other Sources :

https://indiankanoon.org/doc/733492/

https://www.casemine.com/judgement/in/5609ac19e4b014971140e060

Ganga Kumar Srivastava Vs The State of Bihar on 20 Jul 2005

Posted on December 15, 2020 by ShadesOfKnife

The following are the principles that emerge in regards to the exercise of power of the Supreme Court under Article 136 of the Constitution:

“(i) The powers of this Court under Article 136 of the Constitution are very wide but in criminal appeals this Court does not interfere with the
concurrent findings of fact save in exceptional circumstances.
(ii) It is open to this Court to interfere with the findings of fact given by the High Court, if the High Court has acted perversely or otherwise improperly.
(iii) It is open to this Court to invoke the power under Article 136 only in very exceptional circumstances as and when a question of law of general public importance arises or a decision shocks the conscience of the Court.
(iv) When the evidence adduced by the prosecution fell short of the test of reliability and acceptability and as such it is highly unsafe to act upon it.
(v) Where the appreciation of evidence and finding is vitiated by any error of law of procedure or found contrary to the principles of natural justice, errors of record and misreading of the evidence, or where the conclusions of the High Court are manifestly perverse and unsupportable from the evidence on record.”

Ganga Kumar Srivastava Vs The State of Bihar on 20 Jul 2005

Citations : [2005 SCC 6 211], [2005 JT 6 356], [2005 RCR CRI 3 707], [2005 AIR SC 3123], [2005 CRI 5 95], [2005 SAR CRI 0 640], [2005 SCJ 5 364], [2005 CALCRILR 419], [2005 CRLR 650], [2005 BLJ 1630], [2005 ALD CRI 1 485], [2005 ALD CRI 2 485], [2005 ALL MR CRI 2540], [2005 MAHLR 3 542], [2005 SUPREME 5 123], [2005 SCALE 5 535], [2005 AIR SC 3617], [2005 CCR 3 35], [2005 JCRIC 2 1182], [2005 SRJ 7 47], [2005 SLT 5 393], [2005 SCC CRI 1424], [2005 CRLJ SC 3454], [2005 MADLJ CRI 1 864], [2005 AIR SCW 3617]

Other Sources :

https://indiankanoon.org/doc/1238385/

https://www.casemine.com/judgement/in/5609ae1ce4b0149711412fe4

https://www.indianemployees.com/judgments/details/ganga-kumar-srivastava-versus-the-state-of-bihar

Kamlesh Kumar Vs Girish Kapoor and Anr on 12 Apr 1984

Posted on December 13, 2020 by ShadesOfKnife

One of the earliest judgments on Stay proceedings in a Revision at Sessions Court.

From Paras 6 and 7,

6. The above order was passed in revisional jurisdiction of the Sessions Judge. Obviously that jurisdiction was exercised Under Section 397, Cr.P.C. Under its provisions the Sessions Judge could pass an interlocutory order by directing “that the execution of any sentence or order be suspended….” It is, therefore, clear that in a revision, the Sessions Judge could, during the pendency of the revision, suspend either sentence or order against which the revision has been filed. In the present case there is no question of any sentence. There was only the order in question against which revision was filed. At best the said order could only be suspended during the pendency of the revision.
7. The question of suspending the order would only arise if it was still to be executed. If the order had already come into operation, there remained nothing to be suspended. In the present case it is undisputed fact that in pursuance of the order of the learned Magistrate, applicant Kamlesh Kumar had already executed the necessary bonds on the same date and had taken delivery of the said print of the film ‘Naseeb’. Accordingly there remained nothing which could be suspended.

Casemine Version:

Kamlesh Kumar Vs Girish Kapoor and Anr on 12 Apr 1984

Citations :

Other Sources :

https://indiankanoon.org/doc/1179659/

https://www.legalcrystal.com/case/473801/kamlesh-kumar-vs-girish-kapoor-anr

Shades of Knife

True Colors of a Vile Wife

Tag: Legal Procedure Explained – Interpretation of Statutes

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Ganga Kumar Srivastava Vs The State of Bihar on 20 Jul 2005

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