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Sec.304 B – Reason of Death not established – Non- examination of the Doctor – Non- production of Vicesar report – Police , Magistrate – Prosecution all committed grave mistake – resulted in Acquittal under sec. 304 B I.P.C. = Chhotan Sao & Another …Appellants Versus State of Bihar …Respondent = Published in judis.nic.in/supremecourt/filename=41114
Sec.304 B – Reason of Death not established – Non- examination of the Doctor – Non- production of Vicesar report – filed charge sheet – Police , Magistrate – Prosecution all committed grave mistake – resulted in Acquittal under sec. 304 B I.P.C. = We are of the opinion that the conviction of the … Continue reading
The appellant stated that the deceased had died a natural death because she was suffering from rheumatic pain (heart disease) and at that time she was being treated by Dr. Roop Chand at Satnali and she was also attended by Dr. Roop Chand on the day of her death. If this was the defence of the appellant in his statement under Section 313 Cr.P.C. it was incumbent upon him to have produced Dr. Roop Chand as a defence witness, but he has not done so. The result is that the appellant has failed to rebut the presumption under Section 113B of the Indian Evidence Act that it is he who had caused dowry death of the deceased within the meaning of Section 304B of the IPC.
Page 1 Crl.A. Nos. 1447-1448 of 2007 1 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 1447-1448 OF 2007 SATYA PAL ….. APPELLANT VERSUS STATE OF HARYANA & ANR. ….. RESPONDENT J U D G M E N T A.K. PATNAIK J. 1. These are appeals against the judgment dated 16th March, … Continue reading
under Sections 279 and 114 of the Indian Penal Code, 1860 (in short “IPC”), Sections 184, 177 and 192 of the Motor Vehicles Act, 1988 (in short “M.V. Act”), Sections 5, 6, 8 and 10 of the Gujarat Animal Preservation Act, 1954 (hereinafter referred to as “the Principal Act”) and Section 11 of the Prevention of Cruelty to Animals Act, 1960.- ‘buffalo calf’ has not been mentioned as prohibited animal. Sub- section 1A of Section 5 stipulates the schedule of animals which are as under: (a) a cow; (b) the calf of a cow, whether male or female and if male, whether castrated or not; (c) a bull; (d) a bullock. It is clear from the above description of animals that the buffalo calf does not fall under the list of prohibited animals. It is true that Section 5(1) prohibits slaughtering of any animal without a certificate in writing from the Competent Authority that the animal is fit for slaughter. In other words, without a certificate from competent authority, no animal could be slaughtered. Sub-section (1A) to Section 5 mandates that no certificate under sub-section (1) shall be granted in respect of the above mentioned animals. In the said section, admittedly, ‘buffalo calf’ has not been mentioned as prohibited animal. In such circumstance, the prohibition relating to release of vehicle before a period of six months as mentioned in Section 6B(3) of the Amendment Act is not applicable since the appellant was transporting 28 buffalo calves only. In view of the same, it is not advisable to keep the seized vehicle in the police station in open condition which is prone to natural decay on account of weather conditions. In addition to the above interpretation, whatever be the situation, it is of no use to keep the seized vehicle in the police station for a long period. 13) In the light of the above conclusion, order dated 24.08.2012, passed by the Judicial Magistrate, Gandhinagar in Criminal Misc. Application No. 9 of 2012, order dated 01.09.2012, passed by the District and Sessions Judge, Gandhinagar in Criminal Revision Application No. 73 of 2012 and order dated 25.09.2012, passed by the High Court in Special Criminal Application No. 2755 of 2012 are set aside and the respondents are directed to release the vehicle – Eicher Truck bearing Regn. No. GJ-9-Z-3801 forthwith. 14) The appeal is allowed.
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION 1 CRIMINAL APPEAL No. 219 OF 2013 (Arising out of S.L.P. (Crl.) No. 8971 of 2012) Multani Hanifbhai Kalubhai …. Appellant(s) Versus State of Gujarat & Anr. …. Respondent(s) 2 J U D G M E N T P.Sathasivam,J. 1) Leave granted. 2) This appeal … Continue reading
Code of Criminal Procedure, 1973: s. 438 – Anticipatory bail – Grant of – Appellant was member of a political party – FIR alleging that appellant and his brother instigated their party workers to fire gun shots at the workers of opponent political party which resulted in the murder of one person – Murder took place eight days after the incident of instigation – Application for anticipatory bail by appellant – Rejection of, by the High Court – Sustainability of – Held: Order passed by the High Court not sustainable – Appellant directed to join investigation and in the event of arrest, appellant to be released on bail on his furnishing a personal bond – Judgment of Constitution Bench of the Supreme Court in *Sibbia’s case being on the same issue regarding ambit, scope and object of the concept of anticipatory bail u/s. 438 followed – Judicial discipline – Bail – Precedent. ss. 438 and 437 – Power u/s 438, if subject to limitations u/s. 437 – Held: The limitations mentioned in s. 437 cannot be read into s. 438 – Plentitude of s. 438 must be given its full play – Court can impose conditions for the grant of bail – Bail. s. 438 – Anticipatory bail – Grant of, for limited period – Held: Order granting anticipatory bail for a limited duration and, thereafter, directing the accused to surrender and apply before a regular bail is contrary to the legislative intention and the judgment of the Constitution Bench in *Sibbia’s case – When the bail order is confirmed then the benefit of the grant of the bail should continue till the end of the trial of that case – Directing the accused to surrender to custody after the limited period amounts to deprivation of his personal liberty – s.438 does not mention anything about the duration to which a direction for release on bail in the event of arrest can be granted – Courts should not impose restrictions on the ambit and scope of s. 438 which are not envisaged by the legislature – Constitution of India, 1950 – Article 21 – Interpretation of statutes – Legislative intent. s. 438 – Anticipatory bail – Scope and ambit of – Discussed. s. 438 – Anticipatory bail – Grant or refusal of – Exercise of power – Relevant considerations for – Held: Courts should maintain fine balance between societal interest vis-=Allowing the appeal, the Court HELD: 1.1 In the instant case, there is a direct judgment of the Constitution Bench of this Court in Sibbia’s case dealing with exactly the same issue regarding ambit, scope and object of the concept of anticipatory bail enumerated under Section 438 of the Code of Criminal Procedure, 1973. The controversy is no longer res integra. The judicial discipline obliges this Court to follow the said judgment in letter and spirit. The impugned judgment and order of the High Court declining anticipatory bail to the appellant cannot be sustained and is consequently set aside. The appellant is directed to join the investigation and fully cooperate with the investigating agency. In the event of arrest the appellant would be released on bail. [Paras 151, 152 and 153] [273-H; 274-A-C] 1.2 This Court in the *Sibbia’s case laid down the following principles with regard to anticipatory bail: (a) Section 438(1) Cr.P.C. is to be interpreted in light of Article 21 of the Constitution of India. (b) Filing of FIR is not a condition precedent to exercise of power under Section 438 Cr.P.C. (c) Order under Section 438 would not affect the right of police to conduct investigation. (d) Conditions mentioned in Section 437 Cr.P.C. cannot be read into Section 438 Cr.P.C. (e) Although the power to release on anticipatory bail can be described as of an “extraordinary” character this would “not justify the conclusion that the power must be exercised in exceptional cases only.” (f) Powers are discretionary to be exercised in light of the circumstances of each case. (g) Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be issued forthwith and question ought to be re- examined after hearing. Such ad interim order must conform to requirements of the Section and suitable conditions should be imposed on the applicant. [Para 119] [261-B-H; 262-A] 1.3 The Constitution Bench in *Sibbia’s case comprehensively dealt with almost all aspects of the concept of anticipatory bail under Section 438 Cr.P.C. In view of the clear declaration of law laid down by the Constitution Bench in *Sibbia’s case, it would not be proper to limit the life of anticipatory bail. When the court observed that the anticipatory bail is for limited duration and thereafter, the accused should apply to the regular court for bail, that means the life of Section 438 Cr.P.C. would come to an end after that limited duration. This limitation has not been envisaged by the legislature. The Constitution Bench in *Sibbia’s case clearly observed that it is not necessary to re-write Section 438 Cr.P.C. Therefore, in view of the clear declaration of the law by the Constitution Bench, the life of the order under Section 438 Cr.P.C. granting bail cannot be curtailed. [Paras 133 and 134] [267-C-H; 268-A] *Gurbaksh Singh Sibbia and Ors. vs. State of Punjab (1980) 2 SCC 565 – followed. 2.1 The society has a vital interest in grant or refusal of bail because every criminal offence is an offence against the State. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society. The law of bails dovetails two conflicting interests namely, on the one hand, the requirements of shielding the society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand absolute adherence of the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty. [Para 3] [221-C-D] 2.2 Police custody is an inevitable concomitant of arrest for non-bailable offences. The concept of anticipatory bail is that a person who apprehends his arrest in a non-bailable case can apply for grant of bail to the Court of Sessions or to the High Court before the arrest. It is clear from the statement of objects and reasons that the purpose of incorporating Section 438 in the Code of Criminal Procedure, 1973 was to recognize the importance of personal liberty and freedom in a free and democratic country. On analyzing Section 438 Cr.P.C. the wisdom of the legislature becomes quite evident and clear that the legislature was keen to ensure respect for the personal liberty and also pressed in service the age-old principle that an individual is presumed to be innocent till he is found guilty by the court. [Paras 14 and 17] [227-B-C; F-H] 3.1 All human beings are born with some unalienable rights like life, liberty and pursuit of happiness. The importance of these natural rights can be found in the fact that these are fundamental for their proper existence and no other right can be enjoyed without the presence of right to life and liberty. Life bereft of liberty would be without honour and dignity and it would lose all significance and meaning and the life itself would not be worth living. That is why `liberty’ is called the very quintessence of a civilized existence. [Paras 42 and 43] [235-H; 236-A-B] 3.2 The term `liberty’ may be defined as the affirmation by an individual or group of his or its own essence. It needs the presence of three factors, harmonious balance of personality, the absence of restraint upon the exercise of that affirmation and organization of opportunities for the exercise of a continuous initiative. `Liberty’ generally means the prevention of restraints and providing such opportunities, the denial of which would result in frustration and ultimately disorder. Restraints on man’s liberty are laid down by power used through absolute discretion, which when used in this manner brings an end to `liberty’ and freedom is lost. At the same time `liberty’ without restraints would mean liberty won by one and lost by another. So `liberty’ means doing of anything one desires but subject to the desire of others. [Paras 45, 46 and 47] [236-G- H; 237-A-E] 3.3 In a properly constituted democratic State, there cannot be a conflict between the interests of the citizens and those of the State. The harmony, if not the identity, of the interests of the State and the individual, is the fundamental basis of the modern Democratic National State. Yet the existence of the State and all government and even all law must mean in a measure the curtailment of the liberty of the individual. But such a surrender and curtailment of his liberty is essential in the interests of the citizens of the State. The individuals composing the State must, in their own interests and in order that they may be assured the existence of conditions in which they can, with a reasonable amount of freedom, carry on their other activities, endow those in authority over them to make laws and regulations and adopt measures which impose certain restrictions on the activities of the individuals. [Para 51] [238-D-G] Chambers’ Twentieth Century Dictionary; Essays on Freedom and Power by John E.E.D.; Treatise on War and Civil Liberties by M.C. Setalvad; Development of Constitutional Guarantee of Liberty by Rosco Pound; Commentaries on the Laws of England by Blackstone Vol. I, p.134; Constitutional Law by Dicey 9th Edn., pp.207-08 – referred to. 4.1 The Fundamental Rights represent the basic values enriched by the people of this country. The aim behind having elementary right of the individual such as the Right to Life and Liberty is not fulfilled as desired by the framers of the Constitution. It is to preserve and protect certain basic human rights against interference by the State. The inclusion of a Chapter in Constitution is in accordance with the trends of modern democratic thought. The object is to ensure the inviolability of certain essential rights against political vicissitudes. [Para 59] [240-E-F] 4.2 Article 21 of the Constitution of India, 1950 is a declaration of deep faith and belief in human rights. In this pattern of guarantee woven in Chapter III of the Constitution, personal liberty of man is at root of Article 21 and each expression used in Article 21 enhances human dignity and values. It lays foundation for a society where rule of law has primary and not arbitrary or capricious exercise of power. The early approach to Article 21 which guarantees right to life and personal liberty was circumscribed by literal interpretation in A.K. Gopalan case. But in course of time, the scope of the application of the Article against arbitrary encroachment by the executives was expanded by liberal interpretation of the components of the Article in tune with the relevant international understanding. Thus, protection against arbitrary privation of “life” no longer means mere protection of death, or physical injury, but also an invasion of the right to “live” with human dignity and would include all these aspects of life which would go to make a man’s life meaningful and worth living, such as his tradition, culture and heritage. The object of Article 21 is to prevent encroachment upon personal liberty in any manner. Article 21 is repository of all human rights essentially for a person or a citizen. A fruitful and meaningful life presupposes full of dignity, honour, health and welfare. In the modern “Welfare Philosophy”, it is for the State to ensure these essentials of life to all its citizens, and if possible to non-citizens. [Paras 67, 69 and 71] [242-H; 243-A, D-F, H; 244- A-B] A. K. Gopalan v. The State of Madras AIR 1950 SC 27; Kharak Singh v. State of U.P. and Ors. AIR 1963 SC 1295; Maneka Gandhi v. Union of India and Anr. (1978) 1 SCC 248; State of A.P. v. Challa Ramakrishna Reddy and Ors. (2000) 5 SCC 712; Kartar Singh v. State of Punjab and Ors. (1994) 3 SCC 569; Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Ors. (1981) 1 SCC 608; P. Rathinam/Nagbhusan Patnaik v. Union of India and Anr. (1994) 3 SCC 394; Khedat Mazdoor Chetana Sangath v. State of M.P. and Ors. (1994) 6 SCC 260; Central Inland Water Transport Corporation Ltd. and Anr. v. Brojo Nath Ganguly and Anr. (1986) 3 SCC 156; Prem Shankar Shukla v. Delhi Administration (1980) 3 SCC 526 – relied on. Bugdaycay v. Secretary of State for the Home Department (1987) 1 All ER 940; R on the application of Pretty v. Director of Public Prosecutions (2002) 1 All ER 1; R. v. Curr (1972) S.C.R. 889 – referred to. 5.1 The complaint filed against the accused needs to be thoroughly examined including the aspect whether the complainant has filed 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. The gravity of charge and 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. [Paras 94 and 95] [252-G-H; 253-A-C] 5.2 It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion 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 investigation and he is fully co-operating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. [Paras 96] [253-D-E] 6.1 The Constitution Bench in Sibbia’s case clearly observed that there is no justification for reading into Section 438 Cr.P.C. the limitations mentioned in Section 437 Cr.P.C. The plentitude of the Section must be given its full play. [Para 98] [253-H; 254-A-B] 6.2 The proper course of action for grant of anticipatory bail ought to be that after evaluating the averments and accusation 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 bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of bail. The public prosecutor or complainant would be at liberty to move the same court for cancellation or modifying the conditions of bail any time if liberty granted by the court is misused. The bail granted by the court should ordinarily be continued till the trial of the case. [Para 101] [254-G-H; 255-A-B] 6.3 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. [Para 103] [255-D] 6.4 The intention of the legislature is quite clear that the power of grant or refusal of bail is entirely discretionary. The Constitution Bench in Sibbia’s case clearly stated that grant and refusal is discretionary and it should depend on the facts and circumstances of each case; and that the wisdom of the Legislature entrusting this power to the superior courts namely, the High Court and the Court of Session must be respected. [Para 104] [255-E-F] 7.1 The order granting anticipatory bail for a limited duration and, thereafter, directing the accused to surrender and apply before a regular bail is contrary to the legislative intention and the judgment of the Constitution Bench in Sibbia’s case. [Para 102] [255-C] 7.2 The court which grants the bail also has the power to cancel it according to the provisions of the General Clauses Act but ordinarily after hearing the public prosecutor when the bail order is confirmed then the benefit of the grant of the bail should continue till the end of the trial of that case. [Para 105] [256-D] 7.3 The restriction on the provision of anticipatory bail under Section 438 Cr.P.C. limits the personal liberty of the accused granted under Article 21 of the Constitution. In order to meet the challenge of Article 21 of the Constitution the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. [Para 107] [256-F-H; 257-A] Maneka Gandhi v. Union of India and Anr. (1978) 1 SCC 248 – relied on. 7.4 Section 438 Cr.P.C. does not mention anything about the duration to which a direction for release on bail in the event of arrest can be granted. The order granting anticipatory bail is a direction specifically to release the accused on bail in the event of his arrest. Once such a direction of anticipatory bail is executed by the accused and he is released on bail, the concerned court would be fully justified in imposing conditions including direction of joining investigation. [Para 108] [257-B- C] 7.5 In pursuance to the order of the Court of Sessions or the High Court, once the accused is released on 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. The court must bear in mind that at times the applicant would approach the court for grant of anticipatory bail on mere apprehension of being arrested on accusation of having committed a non- bailable offence. In fact, the investigating or concerned agency may not otherwise arrest that applicant who has applied for anticipatory bail but just because he makes an application before the court and gets the relief from the court for a limited period and, thereafter, he has to surrender before the trial court and only thereafter his bail application can be considered and life of anticipatory bail comes to an end. This may lead to disastrous and unfortunate consequences. [Paras 110 and 111] [257-E-H; 258- A] 7.6 The courts should not impose restrictions on the ambit and scope of Section 438 Cr.P.C. which are not envisaged by the Legislature. The court cannot rewrite the provision of the statute in the garb of interpreting it. It is unreasonable to lay down strict, inflexible and rigid rules for exercise of such discretion by limiting the period of which an order under this Section could be granted. Once the anticipatory bail is granted then the protection should ordinarily be available till the end of the trial unless the interim protection by way of the grant of anticipatory bail is curtailed when the anticipatory bail granted by the court is cancelled by the court on finding fresh material or circumstances or on the ground of abuse of the indulgence by the accused. [Paras 113, 114 and 117] [258-E-H; 260-G-H; 261-A] 8.1 No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. No attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. [Para 121] [262-F-G] 8.2 The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) 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; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused’s likelihood to repeat similar or the other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) 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 accused is implicated with the help of Sections 34 and 149 of the Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; (viii) 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 the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) 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 is entitled to an order of bail. [Para 122] [263-A-H; 264-A-D] 8.3 The arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record. [Paras 123 and 124] [264-D- F] 8.4 Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case. In case, the State considers the following suggestions in proper perspective then perhaps it may not be necessary to curtail the personal liberty of the accused in a routine manner. These suggestions which are only illustrative and not exhaustive are: (1) Direct the accused to join investigation and only when the accused does not co-operate with the investigating agency, then only the accused be arrested. (2) Seize either the passport or such other related documents, such as, the title deeds of properties or the Fixed Deposit Receipts/Share Certificates of the accused. (3) Direct the accused to execute bonds; (4) The accused may be directed to furnish sureties of number of persons which according to the prosecution are necessary in view of the facts of the particular case. (5) The accused be directed to furnish undertaking that he would not visit the place where the witnesses reside so that the possibility of tampering of evidence or otherwise influencing the course of justice can be avoided. (6) Bank accounts be frozen for small duration during investigation. [Paras 127 and 128] [265-D-H; 266-A-C] 8.5 In case the arrest is imperative, according to the facts of the case, in that event, the arresting officer must clearly record the reasons for the arrest of the accused before the arrest in the case diary, but in exceptional cases where it becomes imperative to arrest the accused immediately, the reasons be recorded in the case diary immediately after the arrest is made without loss of any time so that the court has an opportunity to properly consider the case for grant or refusal of bail in the light of reasons recorded by the arresting officer. [Para 129] [266-D] 8.6 The exercise of jurisdiction under Section 438 Cr.P.C. is extremely important judicial function of a judge and must be entrusted to judicial officers with some experience and good track record. Both individual and society have vital interest in orders passed by the courts in anticipatory bail applications. It is imperative for the High Courts through its judicial academies to periodically organize workshops, symposiums, seminars and lectures by the experts to sensitize judicial officers, police officers and investigating officers so that they can properly comprehend the importance of personal liberty vis-
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 2271 2010. (Arising out of SLP (Crl.) No.7615 of 2009) Siddharam Satlingappa Mhetre …..Appellant Versus State of Maharashtra and Others …..Respondents JUDGMENT Dalveer Bhandari, J. 1. Leave granted. 2. This appeal involves issues of great public importance pertaining to the importance of … Continue reading
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