Section 357 CrPC is intended to reassure the victim that he/she is not forgotten in the criminal justice system. {Para 161}
162. Section 357 CrPC is a constructive approach to crimes. It is indeed a step forward in our criminal justice system.
163. The power under Section 357 CrPC is not ancillary to other sentences but in addition thereto.
164. The power under Section 357 CrPC is to be exercised liberally to meet the ends of justice in a better way.
165. Section 357 CrPC confers a duty on the Court to apply its mind on the question of compensation in every criminal case.
166. The word „may‟ in Section 357(3) CrPC means „shall‟ and therefore, Section 357 CrPC is mandatory.
167. The Supreme Court in Ankush Shivaji Gaikwad (supra) has given directions that the Courts shall consider Section 357 CrPC in every criminal case and if the Court fails to make an order of compensation, it must furnish reasons.
Quantum of compensation
168. The amount of compensation is to be determined by the Court depending upon gravity of offence, severity of mental and physical harm/injury suffered by the victim, damage/losses suffered by the victims and the capacity of the accused to pay. While determining the paying capacity of the accused, the Court has to take into consideration the present occupation and income of the accused. The accused can also be directed to pay monthly compensation out of his income.
Financial capacity of the accused
169. Before awarding compensation, the Trial Court is required to ascertain the financial capacity of the accused. This Court has formulated the format of an affidavit to be filed by the accused after his conviction to disclose his assets and income which is Annexure-A hereto.
Victim Impact Report
170. This Court has formulated the format of Victim Impact Report (VIR) to be filed by DSLSA in every criminal case after conviction. Victim Impact Report (VIR) shall disclose the impact of the crime on the victim. The format of the Victim Impact Report in respect of criminal cases, other than motor accident cases, is Annexure B-1. The format of Victim Impact Report
in respect of motor accident cases is Annexure B-2.
Summary Inquiry
171. A summary inquiry is necessary to ascertain the impact of crime on the victim, the expenses incurred on prosecution as well as the paying capacity of the accused.
172. This Court is of the view that the summary inquiry be conducted by Delhi State Legal Services Authority (DSLSA) considering that DSLSA is conducting similar inquiry under the Delhi Victim Compensation Scheme, 2018 and is well conversant with the manner of conducting the inquiry.
173. After the conviction of the accused, the Trial Court shall direct the accused to file the affidavit of his assets and income in the format of Annexure-A within 10 days.
174. After the conviction of the accused, the Court shall also direct the State to disclose the expenses incurred on prosecution on affidavit along with the supporting documents within 30 days.
175. Upon receipt of the affidavit of the accused, the Trial Court shall immediately send the copy of the judgment and the affidavit of the accused in the format of Annexure-A and the documents filed with the affidavit to DSLSA.
176. Upon receipt of the judgment and the affidavit of the accused, DSLSA shall conduct a summary inquiry to compute the loss suffered by the victims and the paying capacity of the accused and shall submit the Victim Impact Report containing their recommendations to the Court within 30 days. Delhi State Legal Services Authority shall seek the necessary assistance in
conducting the inquiry from SDM concerned, SHO concerned and/or prosecution who shall provide the necessary assistance upon being requested.
177. The Trial Court shall thereafter consider the Victim Impact Report of the DSLSA with respect to the impact of crime on the victims, paying capacity of the accused and expenditure incurred on the prosecution; and after hearing the parties including the victims of crime, the Court shall award the compensation to the victim(s) and cost of prosecution to the State, if the accused has the capacity to pay the same. The Court shall direct the accused to deposit the compensation with DSLSA whereupon DSLSA shall disburse the amount to the victims according to their Scheme.
178. If the accused does not have the capacity to pay the compensation or the compensation awarded against the accused is not adequate for rehabilitation of the victim, the Court shall invoke Section 357A CrPC to recommend the case to the Delhi State Legal Services Authority for award of compensation from the Victim Compensation Fund under the Delhi Victims Compensation Scheme, 2018.
179. In pending appeals/revisions against the order on sentence in which Section 357 CrPC has not been complied with, the Public Prosecutor shall file an application seeking a direction from the Court for directing the accused to file his affidavit of assets and income in the format of Annexure- A and directions to DSLSA to conduct a summary inquiry to ascertain theloss/damage suffered by the victim(s) and the paying capacity of the accused in the format of Annexures-B/B-1 in terms of Sections 357(4) CrPC in accordance with procedure mentioned hereinabove.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 27th November, 2020
+ CRL.A. 352/2020
KARAN Vs STATE NCT OF DELHI
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
HON'BLE MR. JUSTICE RAJNISH BHATNAGAR
HON'BLE MR. JUSTICE BRIJESH SETHI
Citation: 2020:DHC:3415-DB
1. The appellants have been convicted by the ld. Additional Sessions
Judge under Sections 302/34 IPC. The ld. Addl. Sessions Judge reserved the
judgment, after conclusion of the arguments, on 06th March, 2020 while
being posted at Karkardooma Courts. On 13th March, 2020, ld. Addl.
Sessions Judge was transferred from Karkardooma Courts to Rohini Courts
and he pronounced the impugned judgments on 09th July, 2020. The
appellants have challenged impugned judgments on the two grounds: first,
that the ld. Addl. Sessions Judge ceased to have jurisdiction in respect of
Karkardooma Courts matters upon being transferred with immediate effect
vide transfer order No.10/G-I/Gaz.IA/DHC/2020 dated 13th March, 2020 and
he was not empowered to deal with this case which was tried in the
jurisdiction of Karkardooma Courts and second, that Note 2 appended to the
transfer order dated 13th March, 2020 which empowered the judicial officers
to pronounce the judgment/order in the reserved matters, was invalid.
Reliance is placed on the Division Bench judgment of this Court in Jitender
@ Kalle v. State, (2013) 196 DLT 103 (DB).
2. An important question of law has arisen for consideration before this
Court with respect to the validity of Note 2 appended to the transfer order
dated 13th March, 2020 and the correctness of the findings of Jitender‟s case
relating to Note 2 in respect of similar transfer orders of the High Court.
Note 2 empowered the transferred judicial officers to pronounce the
judgments/orders in respect of the reserved matters within a period of 2-3
weeks after transfer took effect, notwithstanding such posting/transfer. Note
2 appended to the Transfer Order is reproduced herein under:
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“Note 2. The judicial officers under transfer shall notify the
cases in which they had reserved judgments/orders before
relinquishing the charge of the court in terms of the
posting/transfer order. The judicial officers shall pronounce
judgments/orders in all such matters on the date fixed or
maximum within a period of 2-3 weeks thereof, notwithstanding
the posting/transfer. Date of pronouncement shall be notified in
the cause list of the court to which the matter pertains as also of
the court to which the judicial officer has been transferred and
on the website.”
(Emphasis Supplied)
Brief facts
3. On 15th June, 2017 at about 09:00 PM, the appellants namely Karan,
Sunny and „MB‟ a juvenile in conflict with law dragged Gulfam out of his
house to a nearby park where Karan and Sunny caught hold of Gulfam and
MB stabbed Gulfam in his back with a knife/chura. Gulfam suffered fatal
injuries. FIR No. 465/2017 was registered at P.S. Nand Nagari and both the
appellants were charged for offences under Sections 302/34 IPC. The
chargesheet was committed to the ld. Addl. Sessions Judge Shahdara, vide
order dated 23rd October, 2017 of the Chief Metropolitan Magistrate and
both the accused persons faced the trial.
4. Sh. Jagdish Kumar, Addl. Sessions Judge, Karkardooma Courts heard
the final arguments which concluded on 06th March, 2020 whereupon he
reserved the judgment and the matter was listed for orders on 17th March,
2020.
5. Vide transfer notification/order bearing No. 10/G-I/Gaz.IA/DH/2020
dated 13th March, 2020, Sh. Jagdish Kumar was transferred from the post of
Addl. Sessions Judge, Judge-04, Karkardooma Courts to Addl. Sessions
Judge (Special Fast Track Court), North Rohini with immediate effect.
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6. On 09th July, 2020, Sh. Jagdish Kumar, Addl. Sessions Judge
delivered the judgment while Presiding as Addl. Sessions Judge (Special
Fast Track Court), North Rohini.
7. These appeals came up for hearing for first time on 16th July, 2020,
when the Division Bench of this Court issued notice to the State.
Considering that the grounds raised by the appellants had wide ramifications
on the Criminal Justice System, the Division Bench of this Court issued
notice to the High Court on administrative side. The Division Bench further
appointed Mr. Vikas Pahwa, Senior Advocate to assist this Court as amicus
curiae. The Division Bench further directed the ld. Addl. Sessions Judge to
defer the hearing on sentence by two weeks.
8. On 10th August, 2020, Mr. Vikas Pahwa, ld. amicus curiae, submitted
that this case is squarely covered by the law laid down by the Supreme Court
in Gokaraju Rangaraju v. State of Andhra Pradesh, (1981) 3 SCC 132 in
which the Supreme Court held that the judgment passed by a Sessions Judge
would be legal and valid even if the appointment of the concerned Judge was
subsequently declared to be invalid. The Supreme Court held that the de
facto doctrine was well established. The Supreme Court considered the
earlier cases on the de facto doctrine. The Supreme Court also noted that the
de facto doctrine was recognized by British as well as American Courts. The
Supreme Court further noted that Article 233A was incorporated by the 20th
Amendment to the Constitution in 1966 to protect the judgments delivered
by the Judges notwithstanding that their appointment, posting, promotion or
transfer was not valid. The 20th Amendment was the consequence of the
decision of the 5 Judge Bench judgment of Supreme Court in Chandra
Mohan v. State of U.P., AIR 1966 SC 1987 in which the appointment of the
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District Judges was held to be invalid. The Supreme Court also noted that de
facto doctrine is not a stranger to the Constitution or to the
Parliament/Legislatures of the States. Article 71(2) of the Constitution
protects the actions of the President and the Vice-President, even if their
election was declared as void. Section 107(2) of the Representation of the
People Act, 1951 protects the actions of the Members of Parliament, even if
their election was declared as void.
9. Vide order dated 10th August, 2020, the Division Bench referred these
matters to a larger Bench considering the important questions of law relating
to the criminal justice system involved in these cases.
10. On 25th August, 2020, this matter was placed before the present Bench
of three Judges. The brief notes of submissions were filed by Mr. Rajshekhar
Rao, ld. counsel for Delhi High Court as well as ld. amicus curiae along with
the relevant judgments. Learned counsel for the appellants submitted that he
had gone through the submissions filed by the High Court as well as the ld.
amicus curiae and he received instructions from the appellants to withdraw
the objections to the jurisdiction of the ld. Addl. Sessions Judge and not to
press these appeals but with liberty to challenge the conviction on merits
after the passing of the order on sentence.
11. Mr. Rajshekhar Rao, ld. counsel for the Delhi High Court, Mr. Vikas
Pahwa, ld. amicus curiae; and Mr. Rahul Mehra, ld. Standing counsel for the
State submitted that the findings of the Division Bench relating to the Note 2
in Jitender‟s case (supra) affected the entire Criminal Justice System and,
therefore, this Court should examine the validity of Note 2 issued by the
High Court in these appeals. This Court, vide order dated 25th August, 2020,
permitted the appellants to withdraw the objections to the jurisdiction of the
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ld. Addl. Sessions Judge and the bail applications were dismissed as
infructuous. However, the appeals were kept pending to consider the legal
issues raised by the High Court.
12. Mr. Kanhaiya Singhal, ld. counsel for the appellant Mr. Rajshekhar
Rao, ld. counsel for the High Court; Mr. Rahul Mehra, ld. Standing Counsel
and Mr. Vikas Pahwa, ld. amicus curiae, further submitted that there is a
need to frame guidelines for award of compensation under Section 357
CrPC. It was submitted that the Courts below are not conducting any inquiry
to ascertain the impact of crime on the victims and the paying capacity of the
accused before awarding the compensation. It was further submitted that
guidelines be framed in this regard. Prof. G.S. Bajpai, Professor of
Criminology & Criminal Justice, National Law University, Delhi, who has
done extensive research on Victimology has been appointed as amicus
curiae to assist in this case in framing guidelines under Section 357 CrPC.
Submissions of Mr. Rajshekhar Rao, Ld. counsel for Delhi High Court
13. The ld. Addl. Sessions Judge was transferred from Karkardooma
Courts to Rohini Courts by the High Court vide transfer order dated 13th
March, 2020 and Note 2 appended to the transfer order dated 13th March,
2020 is under challenge. Note 2 appended to the Transfer Order dated 13th
March, 2020, directs:
(i) The judicial officers under transfer shall notify the cases in which they
had reserved judgments/orders before relinquishing the charge of the
Court in terms of the posting/transfer order;
(ii) The Judicial Officers shall pronounce judgments/orders in all such
matters on the date fixed or maximum within a period of 2-3 weeks;
(iii) Notwithstanding the posting/transfer, judgments/orders shall be
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pronounced within a maximum period of 2-3 weeks; and
(iv) Date of pronouncement shall be notified in the (a) cause list of the
Court to which the matter pertains as also (b) the cause list of the
Court to which the judicial officer has been transferred and (c) on the
website.
14. In Jitender‟s case (supra), a similar Note 2 was appended to the
transfer order of the ld. Addl. Sessions Judge which is reproduced
hereunder:-
“Note 2. Judicial Officers under transfer shall notify the cases
in which they had reserved Judgments/Orders before
relinquishing the charge of the Court in terms of the
postings/transfers order. The Judicial Officers shall pronounce
the judgments/orders in all such matters within a period of 2-3
weeks, notwithstanding the posting/transfer.”
15. The aforesaid Note 2 was used for the first time in the transfer/posting
order dated 13th May, 2009 on the recommendation dated 12th May, 2009 of
the Administrative and General Supervision Committee of the High Court.
As per minutes of the meeting of the Administrative and General
Supervision Committee dated 12th May, 2009, the following
recommendations were made:
“(a) It was decided that whenever postings/transfers of judicial
officers are made, the order to be issued, shall be made
effective 2-3 days after the date of issuance.
(b)In the postings/transfers order it shall be directed that the
judicial officers under transfer shall notify the cases in which
they had reserved judgments/orders before relinquishing the
charge of the court in terms of the postings/transfers order. The
judicial officers shall be directed to pronounce
judgments/orders in all such matters within a period of 2-3
weeks, notwithstanding the posting/transfer.”
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16. Note 2 appended to Transfer Order dated 08th February, 2010 has been
used in various other transfer/posting orders of the Judicial Officers by this
Court such as transfer orders dated 13th March, 2009; 17th July, 2009; 28th
July, 2009; 15th October, 2009; 14th December, 2009; 04th February, 2010;
08th March, 2010; 26th April, 2010, 26th August, 2010; 09th September, 2010;
29th October, 2010; 15th December, 2010; 23rd December, 2010; 02nd
February, 2011; 30th September, 2019; 19th November 2019; 04th December,
2019; 19th February, 2020. Various other versions similar to Note 2 have
been used in the transfer/posting orders by this High Court for transfer of
judicial officers of the subordinate judiciary.
Powers of the High Court
17. Article 227 of the Constitution empowers the High Court with the
superintendence over all Courts and Tribunals throughout its territory. The
power of superintendence under Article 227 includes the administrative as
well as judicial superintendence i.e. the High Court can transfer a case by
exercising its administrative power of superintendence or its judicial power
of superintendence. Articles 227 and 235 of the Constitution empower the
High Court to transfer the cases on administrative side. Article 235 of the
Constitution empowers the High Court with control over subordinate Courts
including posting and promotion of Judicial Officers.
18. Code of Criminal Procedure vests plenary powers in the High Court
relating to the superintendence over the subordinate Courts including the
appointment, posting, promotion and transfer of the judicial officers.
Reference is made to Sections 4(1), 7, 9, 11, 12, 13, 16, 17 and 18 CrPC.
Section 33 provides that the Judicial Officers shall have the powers
conferred upon them by High Court and High Court is empowered to
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withdraw the powers conferred on any officer. Section 194 empowers the
High Court to direct a Sessions Judge to try a particular case. Section 407
empowers the High Court to transfer the cases on judicial side and Section
483 stipulates the duty of High Court to exercise continuous superintendence
over Courts of Judicial Magistrates subordinate to it as to ensure that there is
an expeditious and proper disposal of cases by such Magistrates. Section 482
vests inherent power in the High Court to make such orders as may be
necessary to give effect to any order under this Code or to prevent abuse of
process of any Court or otherwise to secure the ends of justice. Section 483
empowers the High Court to exercise superintendence over the subordinate
judiciary. Rule 3, Part B of Chapter 26 of Delhi High Court Rules empowers
the High Court to transfer the cases on administrative grounds. To
summarize, the High Court has both judicial as well as administrative
powers to regulate administration of justice. Reliance is placed on Hari
Vishnu Kamath v. Syed Ahmad Ishaque, (1955) 1 SCR 1104; Ranbir
Yadav v. State of Bihar, (1995) 4 SCC 392; Kamlesh Kumar v. State of
Jharkhand, (2013) 15 SCC 460; Ajay Singh v. State of Chhattisgarh,
(2017) 3 SCC 330 and S. J. Chaudhri [Lt. Col. (Retd.)] v. State, (2006) 131
DLT 376 (DB).
Scheme of the CrPC vis-Ã -vis Irregularity in Procedure
19. Chapter XXXV CrPC deals with irregular proceedings. The object of
Chapter XXXV is to protect the irregular proceedings unless the error has
resulted in failure of justice. Section 460 protects irregularities which do not
vitiate the proceedings whereas Section 461 lists out irregularities which
vitiate proceedings. Section 462 deals with proceedings in a wrong place and
Section 465 deals with the effect of an error, omission or irregularity.
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20. Chapter XXXV CrPC protects the irregularities in procedure unless it
has resulted in failure of justice. Section 462 protects judgment given by a
Criminal Court in a proceeding which took place in a wrong jurisdiction
unless it has resulted in failure of justice. Section 465 protects the
irregularities in the complaint, summons, warrants, proclamation, order,
judgment or other proceedings before or during trial. Reliance is placed on
Willie (William) Slaney v. State of M.P., (1955) 2 SCR 1140 and State of
M.P. v. Bhooraji, (2001) 7 SCC 679.
Concept of „Illegality‟ and „Irregularity‟ in CrPC
21. In Pulukuri Kotayya v. King-Emperor, (1947) 1 Mad LJ 219, the
Privy Council held that the distinction between an illegality and an
irregularity is one of degree rather than of kind. In Willie (William) Slaney
(supra), the Constitution Bench of the Supreme Court held that the illegality
that strikes at the root of the trial and cannot be cured is not merely an
irregularity but the illegality that may strike at the root of the trial and can be
cured is merely an irregularity.
Concept of “Failure of Justice”
22. The conviction cannot be set aside merely on the ground of procedural
irregularity unless it has resulted in failure of justice.
23. In Darbara Singh v. State of Punjab, (2012) 10 SCC 476, the
accused challenged the conviction under Section 302 IPC on the ground that
a charge under Section 302/34 of IPC was not framed against him. The
Supreme Court rejected the objection on the ground that the appellant was
unable to show what prejudice, if any, was caused to the appellant, even if
such charge has not been framed against him, moreover, the appellant was
always fully aware of all the facts. The Supreme Court held that “Failure of
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Justice” means serious prejudice caused to the accused. It has to be shown
that the accused has suffered some disability or detriment in respect of the
protections available to him under Indian Criminal Jurisprudence. Once the
accused is able to show that there has been serious prejudice caused to him,
with respect to either of these aspects, and that the same has defeated the
rights available to him under criminal jurisprudence, then the accused can
seek benefit under the orders of the Court.
24. In Willie (William) Slaney v. State of M.P. (supra), the Supreme
Court held that the irregularities relating to the charge would not vitiate the
conviction, if the accused knew what he was being tried for; main facts
sought to be established against were explained to him clearly and fairly;
and if he was given a full and fair chance to defend himself.
25. In Hanumant Dass v. Vinay Kumar, (1982) 2 SCC 177, the Supreme
Court rejected the challenge to the conviction on the ground that the case
was transferred to a Court which did not have territorial jurisdiction as it has
not resulted in failure of justice.
26. In Kalpnath Rai v. State, (1997) 8 SCC 732, the Supreme Court
rejected the contention that the sanction letter did not mention the section of
the offence under which the accused were prosecuted as it has not resulted in
failure of justice.
Sections 462 and 465 CrPC protects the irregularities pertaining to lack of
jurisdiction
27. There are two types of jurisdictions of a Criminal Court, namely, (i)
the jurisdiction with respect to the power of the Court to try particular kinds
of offences, and (ii) the territorial jurisdiction. While the former goes to the
root of the matter and any transgression of it makes the entire trial void, the
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latter is not of a peremptory character and is curable under Section 462.
Territorial jurisdiction is a matter of convenience, keeping in mind the
administrative point of view with respect to the work of a particular Court,
the convenience of the accused as well as convenience of the witnesses who
have to appear before the Court.
28. While considering the ambit of Sections 462 and 465, the Supreme
Court in State of Karnataka v. Kuppuswamy Gownder, (1987) 2 SCC 74
held that the Scheme of CrPC is that where there is no inherent lack of
jurisdiction either on the ground of lack of territorial jurisdiction or on the
ground of any irregularity of procedure, an order or sentence awarded by a
competent Court could not be set aside unless prejudice is pleaded and
proved which will mean failure of justice. The Supreme Court specifically
observed that „even if a trial takes place in a wrong place where the Court
has no territorial jurisdiction to try the case still unless failure of justice is
pleaded and proved, the trial cannot be quashed‟. Even in cases where trial
was conducted in the wrong jurisdiction, it has been held by the Supreme
Court that the same would not vitiate trial unless there has been a failure of
justice. Reference is made to Mangaldas Raghavji Ruparel v. State of
Maharashtra, (1965) 2 SCR 894; Ram Chandra Prasad v. State of Bihar,
(1962) 2 SCR 50; State of A.P. v. Cheemalapati Ganeswara Rao (1964) 3
SCR 297 and Kamil v. State of U.P., (2019) 12 SCC 600.
Procedure in Criminal Cases
29. Section 353 CrPC provides that judgment in every trial in a Criminal
Court shall be pronounced by the Presiding Officer in open Court. The term
“Presiding Officer” has been used in Sections 61, 70, 105, 265D, 265F, 340,
353 CrPC and Sections 366 and 367 CrPC, 1898. In Section 265F, the term
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„Presiding Officer of the Court‟ is used in contrast to the Section 353 which
uses the term „Presiding Officer‟. In Section 265F, delivery of judgment is
associated with a particular Court whereas Sections 353 CrPC and 366
CrPC, 1898 do not associate the delivery of a judgment with a particular
Court. Section 367 CrPC, 1898 provides that the judgment shall be written
by the Presiding Officer of the Court whereas there is no such stipulation in
Section 353 CrPC.
30. CrPC deals with the situation where the jurisdiction of a Judge, who
recorded the whole or any part of the evidence, has ceased to exist. CrPC
draws the distinction between the matters where hearing had been concluded
prior to cessation of jurisdiction and part-heard matters. Section 326 has to
be complied with even in cases of transfer of a judicial officer within the
same Sessions division. Reference is made to Ranbir Yadav (supra);
Bhaskar v. State, (1999) 9 SCC 551 and Anil Kumar Agarwal v. State of
U.P., 2015 Cri LJ 2826.
31. Section 462 provides that no finding, sentence or order shall be set
aside merely on the ground that the inquiry, trial or other proceedings took
place in the wrong jurisdiction unless there has been a failure of justice.
Similarly, where a judge who had prepared and signed a judgment after
having recorded the entire evidence and hearing arguments, ceased to
exercise jurisdiction prior to pronouncing the same, the successor Judge was
permitted to pronounce the said judgment written and signed by his
predecessor where all formalities stipulated under Section 353 have been
complied with by the predecessor Judge. Reference is made to Bharti Arora
v. State of Haryana, (2011) 1 RCR (Cri) 513 (2).
32. Section 353 does not limit pronouncement of a judgment “in the open
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Court” or by the “presiding officer of the Court” where matter was heard.
However, Sections 353 and 354 have to be complied with. CrPC does not
impose a bar on pronouncement of orders/judgments by the Judge who
recorded the entire evidence and heard the matter or who heard the matter
finally after evidence was recorded by someone else, merely because the
said Judge has been transferred to another Court.
Division Bench judgment in Jitender‟s case
33. Note 2 attached to the transfer order dated 08th February, 2010 was not
under challenge in Jitender‟s case. In that case, the Division Bench was
dealing with the validity of the judgments by which the appellant were
convicted, though dictated and signed by the Judge who heard the arguments
but were „announced‟ by a successor Judge after the transfer of the
predecessor Judge. Thereafter, the successor Judge heard the arguments on
the point of sentence and passed the orders on sentence. The accused
challenged the conviction on the ground that the judgment was not duly
pronounced and Section 353 was not complied with. The question before the
Division Bench was whether such „announcements‟ could amount to valid
judgments? The Division Bench held that the successor Judge cannot adopt
her predecessor‟s written judgment as her own and CrPC does not permit
pronouncement of an order by a successor Judge authored, signed and dated
by a predecessor Judge. Para 47 of the judgment is reproduced hereunder:
“47…While it is true that the note sought to enable the judicial
officers to pronounce judgments/orders within a period of 2/3
weeks, notwithstanding, the posting/transfer, that was merely
an administrative order and cannot over ride the statutory
provisions of the 1973 Code. The High Court could not permit
something by way of an administrative order which was not
permissible under the 1973 Code. The mere fact that there is a
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note such as Note 2 in the order dated 08.02.2010 would not
enable us to detract from the statutory provisions which do not
permit the pronouncement of a judgment by a successor judge
which have been written and signed by the predecessor and
that, too, after the predecessor ceased to have jurisdiction over
the said case…”
34. On a bare reading of para 47 of the judgment in Jitender‟s case, it
appears that the meaning/intention behind Note 2 was not gone into by the
Division Bench. The Division Bench held that an administrative order
cannot override the statutory provisions of the CrPC. As such, it cannot be
said that Note 2 in itself has been set aside by the Division Bench in
Jitender‟s case especially since in the facts of the said case, there was a
clear departure from what was prescribed in Note 2 i.e., rather than the
Presiding Officer who heard the matter pronouncing judgment after transfer
albeit at Court to which he was posted, the judgment was „announced‟ by
the successor although the same was dictated and signed by the predecessor
Judge and dispatched to the successor Judge in sealed cover. Attention of the
Division Bench does not appear to have been drawn to Section 462 CrPC
where setting aside of an order/judgment merely on account of lack of
jurisdiction has been specifically barred unless “such error has in fact
occasioned a failure of justice”. It also appears that the attention of the
Division Bench was not drawn to the judgment of the Supreme Court in
Kuppuswamy Gownder, (supra), where the scope of Section 462 CrPC has
been extended to cases where trial takes place in a wrong place.
35. While considering the impact of Jitender‟s case, it is important to
note that every observation in a judgment is not a binding precedent. In State
of Orissa v. Mohd. Illiyas, (2006) 1 SCC 275, the Supreme Court held that a
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judgment is a precedent on its own facts. It is not everything written in the
judgment constitutes a precedent. The relevant portion is as under:-
“12. … Reliance on the decision without looking into the
factual background of the case before it, is clearly
impermissible. A decision is a precedent on its own facts. Each
case presents its own features. It is not everything said by a
Judge while giving judgment that constitutes a precedent. The
only thing in a Judge's decision binding a party is the principle
upon which the case is decided and for this reason it is
important to analyse a decision and isolate from it the ratio
decidendi. According to the well settled theory of precedents,
every decision contains three basic postulates: (i) findings of
material facts, direct and inferential. An inferential finding of
facts is the inference which the Judge draws from the direct, or
perceptible facts; (ii) statements of the principles of law
applicable to the legal problems disclosed by the facts; and (iii)
judgment based on the combined effect of the above. A decision
is an authority for what it actually decides. What is of the
essence in a decision is its ratio and not every observation
found therein nor what logically flows from the various
observations made in the judgment. The enunciation of the
reason or principle on which a question before a court has been
decided is alone binding as a precedent. (See State of Orissa v.
Sudhansu Sekhar Misra [(1968) 2 SCR 154: AIR 1968 SC 647]
and Union of India v. Dhanwanti Devi [(1996) 6 SCC 44]) A
case is a precedent and binding for what it explicitly decides
and no more. The words used by Judges in their judgments are
not to be read as if they are words in an Act of Parliament. In
Quinn v. Leathem [1901 AC 495 : 85 LT 289 : (1900-03) All
ER Rep 1 (HL)] the Earl of Halsbury, L.C. observed that every
judgment must be read as applicable to the particular facts
proved or assumed to be proved, since the generality of the
expressions which are found there are not intended to be the
exposition of the whole law but governed and qualified by the
particular facts of the case in which such expressions are found
and a case is only an authority for what it actually decides.”
36. In Mehboob Dawood Shaikh v. State of Maharashtra, (2004) 2 SCC
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362, the Supreme Court held that a decision is available as a precedent only
if it decides a question of law. In Jitender‟s case, the question before the
Division Bench was as to (i) whether decisions can be delivered by a
successor Judge in criminal matters (ii) whether decisions announced in
open Court without complying with provisions of Section 353 CrPC can be
considered as validly pronounced and (iii) whether decisions can be
authored by successor Judge in criminal matters after relinquishing charge
on their transfer. However, the Division Bench did not consider the question
as to (i) whether it was mandatory for the successor Judge to pronounce a
judgment authored by the predecessor Judge in view of Note 2 appended to
the transfer order and no other course of action was available to the
successor judge and (ii) whether the defect in pronouncement of judgment
therein is curable under Section 462 CrPC.
Courts have to exercise caution while setting aside administrative orders
37. Note 2 appended to the Transfer Order dated 08th February, 2010 and
Transfer Order dated 13th March, 2020 has been issued in compliance with
the principle that he who hears must decide as held in Gullapalli Nageswara
Rao v. A.P.S.R.T.C., AIR 1959 SC 308. Note 2 further ensure that pendency
of cases is curbed to a certain extent by permitting Judge to pronounce
judgments/orders within a particular time frame subsequent to their transfer.
It is also clear that Note 2 is not in violation of any of the legal principles
stipulated in CrPC. While examining the validity of an administrative order
issued by the Patna High Court under Section 9(6) CrPC that the trial will be
conducted inside the Jail premises for the expeditious trial of the case, it was
held by the Supreme Court in Mohd. Shahabuddin v. State of Bihar, (2010)
4 SCC 653 that while reviewing administrative decisions, standards of
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natural justice should be maintained and the power of judicial review must
not be applied blindly.
38. Pertinently, Note 2 is issued in exercise of the supervisory jurisdiction
of this Court under Article 235 of the Constitution as also in furtherance of
the powers of the High Court under Section 483 CrPC to ensure expeditious
and proper disposal of cases by the Courts. It must also be kept in mind that
there is presumption that all judicial and official acts have been regularly
performed by the judicial officers. As such, unless prejudice or failure of
justice can be shown, administrative orders issued by High Court ought not
to be set aside.
Procedure adopted by Ld. ASJ has not resulted in any irregularity or
illegality
39. It is not the case of the appellants herein that the ld. ASJ, Shri Jagdish
Kumar has not complied with provisions of Section 353 CrPC while
pronouncing the Judgment. It is not the case of the appellants that parties
were not duly notified of the pronouncement in the cause list of the Court
where matter was heard and evidence was recorded, in the cause list of the
Court where order was pronounced or on the District Court website. It is
also not the case of the appellants that the order/judgment has not been duly
signed by ld. ASJ. It is also not the case of the Appellant that the language or
contents of the order/judgment do not comply with Section 354 CrPC. As
the entire evidence in the matter had been recorded and arguments had been
heard, the trial stood completed on 06th March, 2020. As per Section 353
CrPC, judgment in every trial shall be pronounced „after termination of
trial‟. It is also clear that sentencing is a separate stage of trial. It is not the
case of the Appellants herein that in view of procedure followed by ld. ASJ,
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procedure prescribed under Section 235 CrPC for a hearing on sentence
could not be complied with. As such, it is clear that procedure prescribed
under CrPC has not been violated, at any stage, in the present appeals.
Lapse of over four months in delivering the Impugned Judgment is an
irregularity and can be cured
40. Admittedly, there is a time gap of over four months between
completion of trial and pronouncement of the judgment. Ld. ASJ
relinquished charge as ASJ-04, Shahdara on 16th March, 2020 before the
lunch session and took charge as ASJ (Special Fast Track Courts), North
District, Rohini on 16th March, 2020 in the fore-noon.
41. Chapter 11 Part A, Rule 4 of the Delhi High Court Rules provides
for the manner in which a delay in pronouncement of a judgment by a
subordinate Judge is to be dealt with. At the same time, it is important to
mention that various orders have been passed by this Court wherein it is
stipulated that there should be no delay in delivery of judgments in view of
the pandemic prevalent in the country. Reference is made to Dalbir Singh v.
Satish Chand CRP No. 53/2020 decided by this Court on 22nd July, 2020;
Shushree Securities Pvt. Ltd. v. Times A & M (India) Limited, CM(M) No.
98/2020 decided by this Court on 02nd March, 2020 and Deepti Khera v.
Siddharth Khera, CM(M) No. 1637/2019 decided by this Court on 18th
November, 2019.
42. Even though recommendations have been made by the Supreme Court
directing that judgments be delivered in a time bound manner in Anil Rai v.
State of Bihar, (2001) 7 SCC 318, none of the recommendations made
therein stipulate that judgments ought to be set aside merely on account of
delay of four months. Even though there have been instances where the
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Supreme Court has set aside judgments on account of delay in
pronouncements, the cases pertain to a delay of over two years. Reference is
made to Kanhaiyalal v. Anupkumar, (2003) 1 SCC 430 and Bhagwandas
Fatehchand Daswani v. HPA International, (2000) 2 SCC 13. Further,
practice directions of this Court as stipulated in the Delhi High Court Rules
do not stipulate that judgments ought to set aside merely on account of
delay.
Right of accused to a speedy trial and interest of society
43. It is clear that various provisions have been stipulated in the CPC and
CrPC in order to ensure that there is no delay in delivery and pronouncement
of judgments/orders. In the event that the said provisions are violated, a
Court may consider setting aside the conviction keeping in mind various
extraneous factors such as the possibility that the Judge may have forgotten
the facts, public confidence in the judiciary etc. However, it is also important
to keep in mind the following observations of the Supreme Court in Mohd.
Hussain v. State, (2012) 9 SCC 408:
“40. “Speedy trial” and “fair trial” to a person accused of a crime
are integral part of Article 21. There is, however, qualitative
difference between the right to speedy trial and the accused's right of
fair trial. Unlike the accused's right of fair trial, deprivation of the
right to speedy trial does not per se prejudice the accused in
defending himself. The right to speedy trial is in its very nature
relative. It depends upon diverse circumstances. Each case of delay in
conclusion of a criminal trial has to be seen in the facts and
circumstances of such case. Mere lapse of several years since the
commencement of prosecution by itself may not justify the
discontinuance of prosecution or dismissal of indictment. The factors
concerning the accused's right to speedy trial have to be weighed visà -
vis the impact of the crime on society and the confidence of the
people in judicial system. Speedy trial secures rights to an accused
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but it does not preclude the rights of public justice. The nature and
gravity of crime, persons involved, social impact and societal needs
must be weighed along with the right of the accused to speedy trial
and if the balance tilts in favour of the former the long delay in
conclusion of criminal trial should not operate against the
continuation of prosecution and if the right of the accused in the facts
and circumstances of the case and exigencies of situation tilts the
balance in his favour, the prosecution may be brought to an end.
These principles must apply as well when the appeal court is
confronted with the question whether or not retrial of an accused
should be ordered.”
Applicability of de facto doctrine and Article 233A of the Constitution
44. In the present case, Note 2 in the transfer order dated 13th March, 2020
permits the Judge to pronounce the judgment within 2-3 weeks after
relinquishing the charge and, as such, there is no irregularity in the
pronouncement of the judgment. Without prejudice, it is submitted that even
assuming Note 2 was invalid, the de facto doctrine laid down by the
Supreme Court in Gokaraju Rangaraju (supra), would protect the
impugned judgments in the present appeals. In Gokaraju Rangaraju
(supra), the Supreme Court considered the validity of the judgments and
orders passed by the Sessions Judges whose appointments were
subsequently quashed by the Supreme Court. The Supreme Court applied
the de facto doctrine to protect the judgments/orders of such Judges.
45. Article 233A was introduced in the Constitution as a result of the 20th
Amendment to the Constitution pursuant to the Judgment in Chandra
Mohan (supra). Article 233A is reproduced herein under:
“Article 233A - Validation of appointments of, and judgments,
etc., delivered by, certain district judges
Notwithstanding any judgment, decree or order of any court,
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(a)(i) no appointment of any person already in the judicial
service of a State or of any person who has been for not less
than seven years an advocate or a pleader, to be a district
judge in that State, and
(ii) no posting, promotion or transfer of any such person as a
district judge, made at any time before the commencement of
the Constitution (Twentieth Amendment) Act, 1966, otherwise
than in accordance with the provisions of article 233 or article
235 shall be deemed to be illegal or void or ever to have
become illegal or void by reason only of the fact that such
appointment, posting, promotion or transfer was not made in
accordance with the said provisions;
(b) no jurisdiction exercised, no judgment, decree, sentence or
order passed or made, and no other act or proceeding done or
taken, before the commencement of the Constitution (Twentieth
Amendment) Act, 1966 by, or before, any person appointed,
posted, promoted or transferred as a district judge in any State
otherwise than in accordance with the provisions of article 233
or article 235 shall be deemed to be illegal or invalid or ever to
have become illegal or invalid by reason only of the fact that
such appointment, posting, promotion or transfer was not made
in accordance with the said provisions.”
Submissions of Mr. Vikas Pahwa, Ld. amicus curiae
46. In the present case, the Judgment was delivered by ld. ASJ, Shri
Jagdish Prasad in open Court on 09th July, 2020. The pronouncement is in
consonance with Section 353 CrPC and thus, is a valid judgment and no
prejudice has been caused to the accused resulting in failure of justice. Ld.
ASJ had presided over the trial, appreciated the evidence and heard the final
arguments of the case in terms of Section 235 CrPC on 29th February, 2020,
02nd March, 2020, 03rd March, 2020 and on 06th March, 2020, before
reserving the judgment. The trial concluded in terms of Chapter XVIII
CrPC, upon hearing of the arguments of the case on 06th March, 2020. The
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only proceeding left was the pronouncement of the judgment in terms of
Section 353 CrPC.
47. The mandate of Section 353 CrPC is that the Presiding Officer
pronounces the judgment in open Court, immediately after the termination of
the trial or at any subsequent time. The ld. Presiding Officer has to read the
judgment in whole or in part and sign the same along with the date in open
Court. In the present case, the Presiding officer has done the same and
hence, the pronouncement is in consonance with the said provision.
48. The term „Presiding officer‟ referred to Section 353 CrPC has not
been defined in CrPC. It has to be construed liberally taking into
consideration that the Judge before whom the evidence has been recorded,
arguments have been heard and the trial terminated for pronouncement of
the judgment. The only mandatory requirement is that the Judge has to apply
his mind by appreciating the evidence, which he has to declare while
pronouncing the judgment.
49. Ld. ASJ had the jurisdiction to pass the judgment being a de facto
Judge in service and holding a court of competent jurisdiction in Delhi. The
ld. ASJ pronounced the judgment on 09th July, 2020, assuming to have
jurisdiction in view of the Transfer Order passed by the High Court on 13th
March, 2020. To test the validity of the judgment pronounced on 09th July,
2020 by the ld. ASJ, de facto doctrine has to be applied. This doctrine is
engrafted as a matter of public policy and necessity to protect the interest of
public and individuals involved in the official acts of persons exercising the
duty under lawful authority. Since the judgments pronounced by the Judges
post-transfer in different jurisdictions, involves the personal liberty of
convicts at large, the public policy gets involved. This doctrine is well
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established that „the acts of the officers de facto performed by them within
the scope of their assumed official authority, in the interest of the public or
third persons and not for their own benefit, are generally as valid or binding
as if they were the acts of officers de jure‟.
50. In Pulin Behary Das v. King Emperor, 1911 SCC Online Cal 159
Calcutta High Court held that the de facto doctrine is aimed at the prevention
of public mischief and the protection of public and private interest.
51. In Gokaraju Rangaraju v. State of Andhra Pradesh, 1981 (3) SCC
132, the Supreme Court upheld the validity of the judgments and orders
passed by the Sessions Judges whose appointments were subsequently
quashed by the Supreme Court. The Supreme Court applied the de facto
doctrine to protect the judgments/orders of such Judges whose appointments
were quashed. The de facto doctrine avoids endless confusion and needless
chaos. An illegal appointment may be set aside, and a proper appointment
may be made, but the acts of those who hold office de facto are not so easily
undone and may have lasting repercussions and confusing sequels if
attempted to be undone. The de facto doctrine thus has two requisites,
namely, the possession of the office and the performance of the duties
attached thereto and other is the color of title, i.e., apparent right to the office
and acquiescence in the possession thereof by the public. According to this
doctrine, the acts of officers de facto performed within the sphere of their
assumed official authority, in the interest of the public or third parties and
not for their own interest, are generally held valid and binding as if they
were performed by de jure officers.
52. In the present case, no prejudice whatsoever has been caused to the
accused by the pronouncement of the judgment. The ld. ASJ pronounced
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the judgment by assuming power under the administrative transfer order
dated 13th February, 2020 which empowered him to pronounce the judgment
in reserved matters.
High Court has superintendence over the District Courts for conferring
jurisdiction to try cases and the transfer of the Judges
53. Under Articles 227 and 235 of the Constitution, the High Court has
superintendence over all the Courts in Delhi and confers jurisdiction on the
District Courts to try cases in accordance with law, including the power to
transfer the cases from one District to another. The cases can also be
transferred by the High Court under Sections 194, 407 and 483 CrPC.
Reliance is placed on Hari Vishnu Kamath v. Syed Ahmad Ishaque, (1955)
1 SCR 1104; Ranbir Yadav v. State of Bihar, (1995) 4 SCC 392; Kamlesh
Kumar v. State of Jharkhand, (2013) 15 SCC 460; Ajay Singh v. State of
Chhattisgarh, (2017) 3 SCC 330 and Achutananda Baidya v. Prafullya
Kumar Gayen, (1997) 5 SCC 76.
54. In the present case, the transfer order dated 13th March, 2020 has been
issued by the High Court in exercise of its administrative power of
superintendence under Article 227 of the Constitution by empowering the
Judges to pronounce the judgments in reserved matters. The administrative
order of the High Court is not in conflict with the statutory provisions as the
power is exercised for administrative exigency, without impinging upon or
prejudicially affecting the rights and interests of the parties to any judicial
proceeding.
Section 462 CrPC protects the finding, sentence or order challenged on
the ground of jurisdiction of a Sessions division
55. Section 462 CrPC protects the finding, sentence or order of any
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criminal Court on the ground that the enquiry, trial or other proceedings took
place in a wrong Sessions division unless such error has occasioned failure
of justice.
56. In Padam Singh Thakur v. Madan Chauhan, 2016 SCC OnLine HP
4260, the conviction was challenged on the ground that the case was
adjudicated by the Judicial Magistrate, Shimla whereas it should have been
tried by the Judicial Magistrate, Theog. The Himachal Pradesh High Court
rejected the challenge on the ground that no prejudice whatsoever has been
caused to the accused. The Himachal Pradesh High Court held that Section
462 CrPC saves the judgments if the trial had taken place in a wrong
Sessions division.
57. In the present case, the ld. ASJ presided over the trial, heard the final
arguments and thereafter, reserved the judgment. The ld. ASJ thereafter
pronounced the judgment in terms of Section 235 CrPC and no prejudice
whatsoever has been caused to the accused and there was no failure of
justice.
Section 465 CrPC mandates that an irregularity, which does not have the
character of an illegality and does not cause prejudice to the accused, can
be cured
58. Section 465 CrPC provides that the finding, sentence or order of a
Court cannot be set aside on the ground of any error, omission or irregularity
unless there has been failure of justice. Section 465 CrPC protects the
findings, sentence or order in respect of an irregularity and not an illegality.
In Willie (William) Slaney (supra), the Supreme Court defined illegality as a
defect which strikes at the very substance of justice such as refusal to give
accused a hearing, refusal to allow the accused to defend himself, refusal to
explain the charge to the accused and such illegalities are not protected by
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Section 465 CrPC.
59. In Purushottamdas Dalmia v. State of West Bengal, AIR 1961 SC
1589, the conviction by the Sessions Court, Calcutta was challenged by the
accused on the ground that Calcutta Court had no jurisdiction to try the
offence committed outside Calcutta. The Supreme Court held that there are
two types of jurisdiction; first, being the power of the Court to try particular
kind of offences and second, being territorial jurisdiction attached to various
Courts for the sake of convenience. The Supreme Court emphatically held
that if a Court has no jurisdiction to try a particular offence, then it would
amount to be a flagrant violation, which would render the entire trial void.
However, similar importance is not attached to an irregularity arisen due to
territorial jurisdiction of a Court.
60. In Bhooraji, (supra), the conviction was challenged on the ground
that the Sessions Court took cognizance of the offences without the case
being committed to it. The Supreme Court held that a mere irregularity,
which is not in the nature of illegality, can be cured by aid of Section 465
CrPC unless there has been failure of justice. Relevant portion of the
judgment is reproduced as under:-
“12. Section 465 of the Code falls within Chapter XXXV under
the caption "Irregular Proceedings". The chapter consists of
seven sections starting with Section 460 containing a catalogue
or irregularities which the legislature thought were not enough
to axe down concluded proceedings in trials or enquiries.
Section 461 of the Code contains another catalogue of
irregularities which in the legislative perception would render
the entire proceedings null and void. It is pertinent to point out
that among the former catalogue constrains the instance of a
Magistrate, who is not empowered to take cognizance of
offence, taking cognizance erroneously and in good faith. the
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provision says that the proceedings adopted in such a case,
though based on such erroneous order, "shall not be set aside
merely on the ground of his not being so empowered."
13. It is useful to refer to Section 462 of the Code which says
that even proceedings conducted in a wrong sessions divisions
are not liable to be set at naught merely on that ground.
However, an exception is provided in that section that if the
court is satisfied that proceedings conducted erroneously in a
wrong sessions division "has in fact occasioned a failure of
justice" it is open to the higher court to interfere. While it is
provided that all the instances enumerated in Section 461
would render the proceedings void, no other proceedings would
get vitiated ipso facto merely on the ground that the
proceedings were erroneous. The court of appeal or revision
has to examine specifically whether such erroneous steps had in
fact occasioned failure of justice. Then alone the proceedings
can be set aside. Thus the entire purport of the provisions
subsumed in Chapter XXXV is to save the proceedings linked
with such erroneous steps, unless the error is of such a nature
that it had occasioned failure of justice.
xxx xxx xxx
15. A reading of the section makes it clear that the error,
omission or irregularity in the proceedings held before or
during the trial or in any enquiry were reckoned by the
legislature as possible occurrences in criminal courts. Yet the
legislature disfavoured axing down the proceedings or to direct
repetition of the whole proceedings afresh. Hence, the
legislature imposed a prohibition that unless such error,
omission or irregularity has occasioned "a failure of justice"
the superior court shall not quash the proceedings merely on
the ground of such error, omission or irregularity.
16. What is meant by "a failure of justice" occasioned on
account of such error, omission or irregularity? This Court has
observed in Shamnsaheb M. Multtani vs :State of Karanataka
(2001) 2 SCC 577 thus:
"23. We often hear about 'failure or justice' and
quite often the submission in a criminal court is
accentuated with the said expression. Perhaps it is
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too pliable or facile an expression which could be
fitted in any situation of a case. The expression
'failure of justice' would appear, sometimes, as an
etymological chameleon (the simile is borrowed
from Lord Diplock in Town Investments Ltd. v.
Deptt. of the Environment, 1977 (1) All E.R. 813.
The criminal court, particularly the superior court
should make a close examination to ascertain
whether there was really a failure of justice or
whether it is only a camouflage."
17. It is an uphill task for the accused in this case to show that
failure of justice had in fact occasioned merely because the
specified Sessions Court took cognizance of the offences
without the case being committed to it. The normal and correct
procedure, of course, is that the case should have been
committed to the Special Court because that court being
essentially a Court of Sessions can take cognizance of any
offence only then. But if a specified Sessions Court, on the basis
of the legal position then felt to be correct on account of a
decision adopted by the High Court, had chosen to take
cognizance without a committal order, what is the disadvantage
of the accused in following the said court?”
(Emphasis Supplied)
61. In the present case there is no „failure of justice‟ as the predecessor
Judge presided over the trial, heard the final arguments, authored the
judgment and finally pronounced the judgment in consonance with Section
353 CrPC. Even if it is presumed for the sake of arguments, that any
irregularity has been caused due to the delay in pronouncement, it is curable
under Section 465 CrPC. In Jitender‟s case, the defect was not an
irregularity but rather an illegality which could not be cured. The Judgment
was pronounced in violation of Section 353 CrPC, which was held to be no
Judgment in the eyes of law. In the present case, the Judgment passed by the
Ld. Predecessor Judge is valid and legal, and the case was referred to the
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Successor Judge to pass the order on sentence in terms of Section 235(2)
CrPC. The Successor Judge has the jurisdiction to pass the Order on
Sentence in terms of Section 35 CrPC.
Judgment passed by Division Bench in Jitender‟s case is per incuriam and
thus, should be overruled
62. Section 326 (1) CrPC relied upon by the Division Bench while
deciding the above mentioned case states that whenever a Judge or a
Magistrate, after having heard and recorded the whole or any part of the
evidence in an inquiry or a trial, ceases to exercise jurisdiction therein and is
succeeded by another Judge or Magistrate who has such jurisdiction, the
Judge or Magistrate so succeeding may act on the evidence so recorded by
his predecessor, or partly recorded by his predecessor and partly recorded by
himself. Provided that if the succeeding Judge or Magistrate is of opinion
that further examination of any of the witnesses whose evidence has already
been recorded is necessary in the interests of justice, he may re-summon any
such witness, and after such further examination, cross-examination and
re-examination, if any, as he may permit, the witness shall be discharged.
63. Section 326 (1) CrPC while enabling the Successor Judge or
Magistrate to proceed in the manner indicated above, does not specifically
empower the Succeeding Judge or Magistrate to pronounce a Judgment
written by the predecessor Judge or Magistrate without application of mind.
This section only applies when the criminal trial is pending and not
terminated, while the matter is fixed for the pronouncement of judgment.
The Division Bench has wrongly relied upon Section 326 CrPC, which had
no application on the facts and circumstances of that case.
64. While deciding the legality of Note 2 in the transfer/posting order, the
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Division Bench ought to have heard the Delhi High Court. However, the
Division Bench did not issue notice to High Court and hence, the High Court
was not given an opportunity to defend its order. The principle of audi
alteram partem is of paramount importance and the same cannot be
overlooked. Thus, the order passed by the Division Bench is improper on
this count.
65. Note 2 of the transfer/posting order was issued by the High Court
while exercising powers under Article 227 of the Constitution. If given an
opportunity, the Delhi High Court could have defended Note 2, being an
administrative order passed by this High Court in exercise of the power of
superintendence under Article 227, which is the basic structure of the
Constitution. The Division Bench thus did not take into consideration the
power of superintendence of the High Court under Article 227 of the
Constitution.
66. The Division Bench overlooked the mandate of Section 462 CrPC,
which categorically states that no finding, sentence or order can be
challenged on the ground of jurisdiction of any Sessions division.
67. The Division Bench failed to take into consideration the mandate of
Section 465 CrPC, which categorically states that unless there has been a
failure of justice, convictions cannot be set aside merely on the ground of
procedural irregularity.
68. Since the relevant provisions of CrPC, Article 227 of the Constitution
and various judgments of the Supreme Court in this regard were overlooked
by the Division Bench while passing the Judgment in the case Jitender‟s
case, the same deserves to be overruled.
69. The judgment passed by the Division Bench in Jitender‟s case is bad
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in the eyes of law as the Division Bench did not consider the de facto
doctrine discussed in Gokaraju Rangaraju (supra).
Submissions relating to the sentencing policy
70. Section 357 CrPC was introduced on the basis of recommendations
made by the Law Commission in the 41st Report submitted in 1969, which
discussed section 545 (now section 357) of the erstwhile Criminal Code of
1898 extensively. The Report recognized that Criminal Courts had the
discretion to order or not to order payment of compensation. On the basis of
41st Report, the Government of India introduced the Code of Criminal
Procedure Bill, 1970 which aimed at revising section 545 and introducing it
as Section 357. The Statement of Objects and Reasons underlying the Bill
was that Section 545 only provided compensation when the Court imposed a
fine and the amount of compensation was limited to the fine whereas under
the new provision (Section 357), compensation can be awarded irrespective
of whether the offence is punishable with fine and if fine is actually
imposed.
71. Section 357 empowers the Court to award compensation to the victim
having due regard to the nature of injury, the manner of inflicting the same,
the capacity of the accused to pay and other relevant factors. The Code of
Criminal Procedure, 1973 incorporated Section 357 which states in its
Objects that the provision was inserted as it “intended to provide relief to the
proper sections of the community”.
72. The amendments to the Code of Criminal Procedure, 2008 focused
heavily on the rights of victims in a criminal trial, particularly in trials
relating to sexual offences. Though the 2008 Amendment left Section 357
CrPC unchanged, it introduced Section 357A CrPC under which the Court is
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empowered to direct the State to pay compensation to the victim in cases
where Section 357 is not adequate for rehabilitation or where cases end in
acquittal or discharge. The insertion of Sections 357A and 357B in CrPC has
triggered a new compensatory regime. Reference is made to Ankush Shivaji
Gaikwad v. State of Maharashtra, (2013) 6 SCC 770.
73. Section 357A was introduced in CrPC on recommendation of the
154th Law Commission Report to protect victims. The 154th Law
Commission Report on the CrPC devoted an entire chapter to 'Victimology'
in which the growing emphasis on victim's rights in criminal trials was
discussed extensively as under:
“1. Increasingly the attention of criminologists, penologists and
reformers of criminal justice system has been directed to
victimology, control of victimization and protection of victims
of crimes. Crimes often entail substantive harms to people and
not merely symbolic harm to the social order. Consequently the
needs and rights of victims of crime should receive priority
attention in the total response to crime. One recognized method
of protection of victims is compensation to victims of crime. The
needs of victims and their family are extensive and varied.
xxx xxx xxx
9.1 The principles of victimology has foundations in Indian
constitutional jurisprudence. The provision on Fundamental
Rights (Part III) and Directive Principles of State Policy (Part
IV) form the bulwark for a new social order in which social and
economic justice would blossom in the national life of the
country (Article 38). Article 41 mandates inter alia that the
State shall make effective provisions for "securing the right to
public assistance in cases of disablement and in other cases of
undeserved want." So, Article 51A makes it a fundamental duty
of every Indian citizen, inter alia 'to have compassion for living
creatures and humanism. If interpreted and to 'develop
emphatically imaginatively expanded these provisions can form
the constitutional underpinnings for victimology.
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9.2 However, in India the criminal law provides compensation
to the victims and their dependants only in a limited manner.
Section 357 of the Code of Criminal Procedure incorporates
this concept to an extent and empowers the Criminal Courts to
grant compensation to the victims.
xxx xxx xxx
11. In India the principles of compensation to crime victims
need to be reviewed and expanded to cover all cases. The
compensation should not be limited only to fines, penalties and
forfeitures realized. The State should accept the principle of
providing assistance to victims out of its own funds.....
xxx xxx xxx
48. The question then is whether the plenitude of the power
vested in the Courts Under Section 357 & 357-A,
notwithstanding, the Courts can simply ignore the provisions or
neglect the exercise of a power that is primarily meant to be
exercised for the benefit of the victims of crimes that are so
often committed though less frequently punished by the Courts.
In other words, whether Courts have a duty to advert to the
question of awarding compensation to the victim and record
reasons while granting or refusing relief to them?
xxx xxx xxx
66. To sum up: While the award or refusal of compensation in a
particular case may be within the Court's discretion, there
exists a mandatory duty on the Court to apply its mind to the
question in every criminal case. Application of mind to the
question is best disclosed by recording reasons for
awarding/refusing compensation. It is axiomatic that for any
exercise involving application of mind, the Court ought to have
the necessary material which it would evaluate to arrive at a
fair and reasonable conclusion. It is also beyond dispute that
the occasion to consider the question of award of compensation
would logically arise only after the court records a conviction
of the accused. Capacity of the accused to pay which constitutes
an important aspect of any order Under Section 357 Code of
Criminal Procedure would involve a certain enquiry albeit
summary unless of course the facts as emerging in the course of
the trial are so clear that the court considers it unnecessary to
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do so. Such an enquiry can precede an order on sentence to
enable the court to take a view, both on the question of sentence
and compensation that it may in its wisdom decide to award to
the victim or his/her family.
In Malimath Committee Report (March 2003), it was
observed:
“6.7.1 Historically speaking, Criminal Justice System seems to
exist to protect the power, the privilege and the values of the
elite sections in society. The way crimes are defined and the
system is administered demonstrate that there is an element of
truth in the above perception even in modern times. However,
over the years the dominant function of criminal justice is
projected to be protecting all citizens from harm to either their
person or property, the assumption being that it is the primary
duty of a State under rule of law. The State does this by
depriving individuals of the power to take law into their own
hands and using its power to satisfy the sense of revenge
through appropriate sanctions. The State (and society), it was
argued, is itself the victim when a citizen commits a crime and
thereby questions its norms and authority. In the process of this
transformation of torts to crimes, the focus of attention of the
system shifted from the real victim who suffered the injury (as a
result of the failure of the state) to the offender and how he is
dealt with by the State.
xxx xxx xxx
6.8.1 The principle of compensating victims of crime has for
long been recognized by the law though it is recognized more
as a token relief rather than part of a punishment or substantial
remedy. When the sentence of fine is imposed as the sole
punishment or an additional punishment, the whole or part of it
may be directed to be paid to the person having suffered loss or
injury as per the discretion of the Court (Section 357 Cr.PC).
Compensation can be awarded only if the offender has been
convicted of the offence with which he is charged.
xxx xxx xxx
6.8.7 Sympathizing with the plight of victims under Criminal
Justice administration and taking advantage of the obligation
to do complete justice under the Indian Constitution in defense
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of human rights, the Supreme Court and High Courts in India
have of late evolved the practice of awarding compensatory
remedies not only in terms of money but also in terms of other
appropriate reliefs and remedies. Medical justice for the
Bhagalpur blinded victims, rehabilitative justice to the
communal violence victims and compensatory justice to the
Union Carbide victims are examples of this liberal package of
reliefs and remedies forged by the apex Court. The recent
decisions in Nilabati Behera v. State of Orissa (1993 2 SCC
746) and in Chairman, Railway Board v. Chandrima Das are
illustrative of this new trend of using Constitutional jurisdiction
to do justice to victims of crime. Substantial monetary
compensations have been awarded against the instrumentalities
of the state for failure to protect the rights of the victim.
6.8.8 These decisions have clearly acknowledged the need for
compensating victims of violent crimes irrespective of the fact
whether offenders are apprehended or punished. The principle
invoked is the obligation of the state to protect basic rights and
to deliver justice to victims of crimes fairly and quickly. It is
time that the Criminal Justice System takes note of these
principles of Indian Constitution and legislate on the subject
suitably.”
(Emphasis Supplied)
74. On perusal of Section 357 CrPC it is clear that rights under Section
357 are not foreclosed but continued in Section 357A CrPC. The Courts are
empowered to travel beyond Section 357 CrPC and award compensation
where relief under Section 357 CrPC is inadequate or where the cases end in
acquittal or discharge. This amendment has brought forth rehabilitation of
victims to the forefront and it is the Court‟s duty to make such provisions
operative and meaningful.
75. Pursuant to the directions of the Division Bench of this Court in
judgment dated 07th July, 2008 in Criminal Appeal No. 5/2000 titled Khem
Chand v. State of Delhi, Delhi State Legal Services Authority is granting
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interim compensation to the victims under the Delhi Victims Compensation
Scheme, 2011 at initial stage for their rehabilitation on the recommendations
of SHO of the case concerned and also by the Court concerned while
disposing the matter. The nature of extent of victimisation has to be
adequately understood considering the social and stark financial disparity
amongst our citizens. The rights and rehabilitation needs of each victim have
to be minutely gauged, recognized and redressed. Keeping this in
consideration, The Delhi Victim Compensation Scheme, 2011 was
promulgated which was replaced by the Delhi Victims Compensation
Scheme, 2015 which has been in turn replaced by Delhi Victims
Compensation Scheme, 2018 notified on 27th June, 2019 by notification no.
F.11/35/2010/HP-II/2677-2693.
76. In State of Gujarat v. Hon'ble High Court of Gujarat, 1998) 7 SCC
392, the issue arose whether the Government should be permitted to deduct
the expenses incurred for food and clothes from prisoner‟s wages. The Court
allowed the same and observed that it is a constructive thinking for the State
to make appropriate law for diverting some portion of the income earned by
the prisoners when they are in jail to be paid to deserving victims. A victim
of crime suffers the most and even though retribution is the primary function
of law, reparation is the ultimate goal of the Law. The Supreme Court
succinctly noted:
“99……….A victim of crime cannot be a ''forgotten man'' in the
criminal justice system. It is he who has suffered the most. His
family is ruined particularly in case of death and other bodily
injury. This is apart from the factors like loss of reputation,
humiliation, etc. An honour which is lost or life which is snuffed
out cannot be recompensed but then monetary compensation
will at least provide some solace.”
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77. In Hari Singh v. Sukhbir Singh, (1988) 4 SCC 551, seven persons
were convicted under Sections 307/149, 325/l49, 323/149 and 148 IPC and
sentenced to undergo rigorous imprisonment from one year to three years.
The High Court acquitted two of the accused of all charges, and five of the
accused of the offence under Sections 307/149 IPC while maintaining their
conviction and sentence under Sections 325/149, 323/149 IPC and Section
148 IPC. They were however released on probation of good conduct. Each
one of accused was ordered to pay compensation of Rs. 2,500/- to Joginder
who was seriously injured and whose power of speech was permanently
impaired. The Supreme Court deplored the failure of Courts in awarding
compensation under 357 CrPC. The Court recommended all the courts to
exercise the power available under Section 357 CrPC liberally to meet ends
of justice. The court observed:
“10. Sub-section (1) of Section 357 provides power to award
compensation to victims of the offence out of the sentence of
fine imposed on accused. In this case, we are not concerned
with sub-section (1). We are concerned only with sub-section
(3). It is an important provision but courts have seldom invoked
it. Perhaps due to ignorance of the object of it. It empowers the
court to award compensation to victims while passing judgment
of conviction. In addition to conviction, the court may order the
accused to pay some amount by way of compensation to victim
who has suffered by the action of accused. It may be noted that
this power of Courts to award compensation is not ancillary to
other sentences but it is in addition thereto. This power was
intended to do something to reassure the victim that he or she is
not forgotten in the criminal justice system. It is a measure of
responding appropriately to crime as well of reconciling the
victim with the offender. It is, to some extent, a constructive
approach to crimes. It is indeed a step forward in our criminal
justice system. We, therefore, recommend to all Courts to
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exercise this power liberally so as to meet the ends of justice in
a better way.”
The same position was reiterated by courts in Manish Jalan v. State
of Karnataka, (2008) 8 SCC 225; K.A. Abbas H.S.A. v. Sabu Joseph,
(2010) 6 SCC 230 and Roy Fernandes v. State of Goa, (2012) 3 SCC 221.
78. In Ankush Shivaji Gaikwad (supra), the Supreme Court reiterated the
law laid down in Hari Singh‟s case and held that Section 357 confers a
power coupled with a duty on the Courts to apply its mind to the question of
awarding compensation in every criminal case. After noting number of
cases, the Court observed that, “Section 357 CrPC confers a duty on the
Court to apply its mind to the question of compensation in every criminal
case. It necessarily follows that the Court must disclose that it has applied
its mind to this question in every criminal case.” The ignorant attitude of
lower judiciary was intolerable to the Supreme Court when it apparently
observed that:
“67.We regret to say that the trial court and the High Court
appear to have remained oblivious to the provisions of Section
357 CrPC. The judgments under appeal betray ignorance of the
courts below about the statutory provisions and the duty cast
upon the courts. Remand at this distant point of time does not
appear to be a good option either. This may not be a happy
situation but having regard to the facts and the circumstances
of the case and the time lag since the offence was committed,
we conclude this chapter in the hope that the courts remain
careful in future.”
In para 68 of the said judgment, the Supreme Court directed that the
copy of the judgment be forwarded to the Registrars of all the High Courts
for circulation among Judges handling criminal trials and hearing appeals.
79. In Satya Prakash v. State, 2013 (3) MWN (Cr.) 373 (Del.), this Court
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reiterated the same while deciding the scope of compensation under Sections
357 and 357A CrPC to victims of motor accidents. This Court laid down the
guidelines for awarding compensation by Criminal Court to all victims of
motor accident offences even if they are in receipt of compensation from
Motor Accident Claims Tribunal. Further the Court directed a summary
inquiry to be conducted by Criminal Court for ascertaining quantum of
compensation by directing the SHO of Police station to submit „Victim
Impact Report‟.
80. In Vikas Yadav v. State of U.P, 2015 SCC OnLine Del 7129, the
Division Bench of this Court held that although theorizing is one thing and
practically carrying out what the Section mandates in order to achieve its
true objective requires aid of the judiciary to form guidelines on Scheme of
Compensation under Section 357. There is huge cost of litigation even in
criminal cases also though comparatively criminal cases run for a lesser
duration. The contributing factors in the increase is the fact that the accused
who is in the state custody is deemed to be innocent and therefore, all
expenses of such person as long as he is in custody is borne by the State
itself. At the end of the trial, Courts may ask the accused to pay for the
expenses, which are surprisingly limited to the fine to be paid under Section
357. The litigants take advantage of such expenses borne by the State and
the State ends up paying amount for trips to the hospital and other places of
the accused. This fact has been predominantly deprecated by the Division
Bench in Vikas Yadav (supra), where the Court went to miniscule minutes
of each penny spent on the accused during the entire trial and ordered for the
recovery of the same. The Division Bench imposed a fine of Rupees fifty
lakhs on the accused and ordered it to be disbursed. The Supreme Court in
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appeal Vikas Yadav v. State of Uttar Pradesh, (2016) 9 SCC 541 upheld the
compensation Scheme under Section 357 CrPC and modified it by
enhancing the fine and determining the compensation as per facts of the
case, thereby reaffirming the compensation Scheme.
81. The law in many jurisdictions particularly in continental countries
recognizes two types of rights of victims of crime, firstly, the victim‟s right
to participate in criminal proceedings and secondly, the right to seek and
receive compensation from the criminal court for injuries suffered as well as
appropriate interim reliefs in the course of proceedings.
82. In Suresh v. State of Haryana, (2015) 2 SCC 227, the Supreme Court
interpreted Section 357 CrPC to include interim compensation also. In a case
where State failed to protect the life of two, the Court observed:
“16. We are of the view that it is the duty of the courts, on
taking cognizance of a criminal offence, to ascertain whether
there is tangible material to show commission of crime,
whether the victim is identifiable and whether the victim of
crime needs immediate financial relief. On being satisfied on an
application or on its own motion, the Court ought to direct
grant of interim compensation, subject to final compensation
being determined later. Such duty continues at every stage of a
criminal case where compensation ought to be given and has
not been given, irrespective of the application by the victim.
Gravity of offence and need of victim are some of the guiding
factors to be kept in mind, apart from such other factors as may
be found relevant in the facts and circumstances of an
individual case.
17. We are also of the view that there is need to consider
upward revision in the scale for compensation and pending
such consideration to adopt the scale notified by the State of
Kerala in its scheme, unless the scale awarded by any other
State or Union Territory is higher. The States of Andhra
Pradesh, Madhya Pradesh, Meghalaya and Telangana are
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directed to notify their schemes within one month from receipt
of a copy of this order.
18. We also direct that a copy of this judgment be forwarded to
National Judicial Academy so that all judicial officers in the
country can be imparted requisite training to make the
provision operative and meaningful.
19. We determine the interim compensation payable for the two
deaths to be rupees ten lakhs, without prejudice to any other
rights or remedies of the victim family in any other
proceedings.
20. Accordingly, while dismissing the appeal, we direct that
...the victim be paid interim compensation of rupees ten lakhs.
It will be payable by the Haryana State Legal Services
authority within one month from receipt of a copy of this order.
If the funds are not available for the purpose with the said
authority, the State of Haryana will make such funds available
within one month from the date of receipt of a copy of this
judgment and the Legal Services Authority will disburse the
compensation within one month thereafter”.
83. In Ankush Shivaji Gaikwad (supra) the Supreme Court developed on
its position taken in Hari Singh (supra) and held that Section 357 CrPC
confers a power coupled with a duty on the Courts to apply its mind to the
question of awarding compensation in every criminal case. The Supreme
Court laid down the proposition that: - “While the award or refusal of
compensation in a particular case may be within the Court's discretion,
there exists a mandatory duty on the Court to apply its mind to the question
in every criminal case. Application of mind to the question is best disclosed
by recording reasons for awarding/refusing compensation”. The Court
made application of Sections 357 and 357A CrPC mandatory while
sentencing the accused by directing the Courts to state the reasons for
application or non- application of Sections 357 or 357A CrPC before
delivering the order on sentence. The Supreme Court, in Suresh (supra),
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categorically observed that Section 357A CrPC was introduced on the
recommendation of the 154th Law Commission Report with the sole purpose
of ensuring protection to victims.
Submissions of Prof. G.S. Bajpai, Professor of Criminology & Criminal
Justice, National Law University, Delhi
84. Prof. G.S. Bajpai has submitted the research paper on Victim
Restitution Scheme. Prof. G.S. Bajpai has also made oral submissions to
assist this Court. Prof. G.S. Bajpai referred to the resolution passed by
General Assembly of United Nations titled UN Declaration of Basic
Principles of Justice for Victims of Crime and Abuse of Power on 11th
November, 1985. Clause 8 of the U.N. Declaration deals with the restitution
to the victims of the crime. It is submitted that the crime has numerous
impacts on the victim including physical, financial, social and sociological
impact. Prof. G.S. Bajpai has suggested the Victim Restitution Scheme,
according to which the Investigating Officer should prepare a report relating
to the loss or injury suffered by the victim and the financial capacity of the
accused during the course of investigation.
85. After conviction of an accused, the Court should constitute an Inquiry
Committee to determine the injury suffered by the victim; cost incurred by
the State in prosecution and financial capacity of the accused to pay the
restitution amount; the Inquiry Committee should comprise of a panel of two
members from DSLSA, Police, Advocates, eminent persons in the field of
law and social workers; the Inquiry Committee should call for an affidavit
from the accused with respect to his financial capacity and an affidavit from
the victim with respect to the impact of crime and data from the
Investigating Officer and prosecution with respect to the cost of prosecution;
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Inquiry Committee should thereafter inquire into the matter and submit the
report to the Court within 30 days; the Court should determine the restitution
amount after considering the report and hearing the parties. Prof. G.S. Bajpai
has also given suggestions for protection and disbursement of the restitution
amount to the victims. Prof. G.S. Bajpai has also submitted the formats of
report of the Investigating Officer; and formats of the affidavit of the victim
and format of the affidavit of the accused.
Submissions of Mr. Rahul Mehra, Ld. Standing Counsel, Govt. of NCT of
Delhi
86. On 29th November, 1985, The General Assembly of United Nations
adopted the UN Declaration of Basic Principles of Justice for Victims of
Crime and Abuse of Power which emphasized the need to set norms and
minimum standards for protection of victims of crime. The said declaration
recognized four major components of rights of victims of crime, namely,
access to justice and fair treatment; restitution; compensation and assistance.
Section 357A CrPC was incorporated to give effect to the UN Declaration.
87. Every victim of crime undergoes immense physical, emotional and
mental trauma apart from economic losses. State as a custodian of all
Fundamental Constitutional Rights is not only legally but also morally and
socially bound to come to the rescue of victims and provide them all help so
that they can overcome their trauma, both emotionally as well as financially.
88. The nature and extent of victimisation has to be adequately understood
considering the social and stark financial disparity amongst the citizens. The
rights and rehabilitation needs of each victim have to be minutely gauged,
recognized and redressed. They deserve attention and help.
89. In Khem Chand v. State, Crl.A.No.5/2000, this Court passed
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directions for grant of interim compensation to the victims at the initial stage
for rehabilitation whereupon DSLSA granted interim compensation to the
victims and DSLSA established a cell to provide counseling to the victims of
sexual assault.
90. Victim Compensation Scheme, 2011 was notified which was later
replaced by Delhi Victim Compensation Scheme, 2015 and then again
replaced by Delhi Victim Compensation Scheme, 2018 which is in force
now.
91. In Nipun Saxena v. Union of India, (2019) 2 SCC 703 the Supreme
Court passed various directions with respect to the compensation to the
victims of crime in pursuance to which Delhi Victim Compensation Scheme,
2015 was replaced by Delhi Victim Compensation Scheme, 2018.
92. Delhi Victim Compensation Scheme, 2018 contains two parts – Part I
deals with the victims of offences categorized in the schedule whereas Part
II deals with women victims/survivors of sexual assault and other crimes.
The salient features of Delhi Victim Compensation Scheme, 2018 are as
under:
(i) In every matter wherein the convict is not in position to
compensate the victim, the Trial Court may consider the same
and with reasons in writing, may recommend the matter to
District Legal Services Authority.
(ii) Except Special Courts designated as Children‟s Court/POCSO
Court, Trial Court while making the recommendation cannot
quantify the quantum of compensation. POCSO Court is
authorized by law laid down under Section 33(8) of the
Protection of Children from Sexual Offences Act, 2012 to
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quantify the quantum.
(iii) The recommendation may be made for grant of compensation
according to the Delhi Victim Compensation Scheme, 2018.
The Legal Services Authority is not authorized to grant the
compensation beyond the limit provided in the Scheme.
(iv) In matters resulting into acquittal or discharge, similar
recommendation may be made in case the Trial Court feels the
need of rehabilitation of the victim provided the victim can be
considered as a victim of an offence as defined in the scheme.
(v) In cases of untraced matters or wherein the identity of the
offender cannot be established, the victim/dependants may be
referred to District Legal Services Authority to move an
application for grant of compensation.
(vi) At any stage of the trial, Trial Court may also recommend/refer
the matter for grant of Interim Compensation. The interim
compensation can only be quantified by the POCSO Court.
(vii) The compensation can only be granted in the categories
mentioned in the Schedule to the Scheme in Part-I and Part-II.
The other matters cannot be considered. Legal Services
Authorities are not authorized/ empowered to go beyond the
Scheme.
(viii) Compensation may be recommended in State Cases i.e. matter
on which cognizance has been taken on basis of Police Report
(for Interim, this may be considered as Institution on basis of
FIR) or on complaint cases (only when the accused has been
summoned).
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(ix) In Part-I of the Scheme, it has been categorically provided that
cases covered under the Motor Vehicles Act, 1988 wherein
compensation is to be awarded by Motor Accidents Claims
Tribunal, shall not be covered under the Scheme.
(x) In case the victim/dependents have already been granted
compensation under any other governmental scheme, District
Legal Services Authority does not have any authority to grant
compensation under Part-I and under Part-II, the quantum so
granted has to be considered/adjusted accordingly.
(xi) Under the purview of the Scheme as envisaged in Part-I, it is
not the offence but the injury suffered by the victim which
forms the basis of recommendation for grant of compensation.
(xii) The Scheme also provides for factors to be considered while
awarding compensation in both Part-I and Part-II which have to
be considered by the District Victim Compensation Committee
for grant of compensation. In case, none of the factors are
satisfied, the committee is not empowered to grant the
compensation.
(xiii) The Scheme does not provide for compensation in case of loss
of property rather it focuses on physical or mental injury
sustained by victim and similarly by the dependents in case of
loss of life. Therefore, the matter wherein the victim has
suffered loss of only movable/immovable property may not be
recommended/ referred for compensation.
93. The inquiry should be conducted by the DSLSA with the assistance of
Delhi Police and the Inquiry Report with respect to the impact of the crime
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on the victim as well as with respect to the financial capacity of the accused
be filed by DSLSA before the Court. It is submitted that the format of the
affidavit of the victim with respect to the impact of the crime and the
affidavit of the accused with respect to the financial capacity be formulated.
The Court, after holding the accused guilty of offence, should direct the
aforesaid affidavits to be filed within 10 days and DSLSA be directed to
conduct a preliminary inquiry into the matter and submit a report to the
Court within 30 days.
Submission of Mr. Kanhaiya Singhal, Advocate
94. The affidavit of the victim relating to the impact of crime and the
affidavit of the accused with respect to his financial capacity be formulated
and the same be called for by the Trial Court after the conviction of the
accused. Mr. Singhal, ld. counsel for the appellants has suggested the
formats of the affidavits in his written submissions.
Relevant Provisions of law
95. Constitution of India
Article 227 - Power of superintendence over all courts by the
High Court
(1) Every High Court shall have superintendence over all
courts and tribunals throughout the territories in relation to
which it exercises jurisdiction.
(2) Without prejudice to the generality of the foregoing
provision, the High Court may:
a. call for returns from such courts;
b. make and issue general rules and prescribe forms
for regulating the practice and proceedings of such
courts; and
c. prescribe forms in which books, entries and
accounts shall be kept by the officers of any such courts.
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(3) The High Court may also settle tables of fees to be
allowed to the sheriff and all clerks and officers of such courts
and to attorneys, advocates and pleaders practicing therein:
Provided that any rules made, forms prescribed, or tables
settled under clause (2) or clause (3) shall not be inconsistent
with the provision of any law for the time being in force and
shall require the previous approval of the Governor.
(4) Nothing in this article shall be deemed to confer on a
High Court powers of superintendence over any court or
tribunal constituted by or under any law relating to the Armed
Forces.
Article 235 - Control over subordinate courts
The control over district courts and courts subordinate thereto
including the posting and promotion of, and the grant of leave
to, persons belonging to the judicial service of a State and
holding any post inferior to the post of district judge shall be
vested in the High Court, but nothing in this article shall be
construed as taking away from any such person any right of
appeal which he may under the law regulating the conditions of
his service or as authorising the High Court to deal with him
otherwise than in accordance with the conditions of his service
prescribed under such law.
96. Code of Criminal Procedure
Section 194 - Additional and Assistant Sessions Judges to try
cases made over to them
An Additional Sessions Judge or Assistant Sessions Judge shall
try such cases as the Sessions Judge of the division may, by
general or special order, make over to him for trial or as the
High Court may, by special order, direct him to try.
Section 265 F - Judgment of the Court
The Court shall deliver its judgment in terms of section 265E in
the open Court and the same shall be signed by the presiding
officer of the Court.
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Section 326 - Conviction or commitment on evidence partly
recorded by one Magistrate and partly by another.
(1) Whenever any Judge or Magistrate, after having heard
and recorded the whole or any part of the evidence in any
inquiry or a trial, ceases to exercise jurisdiction therein and is
succeeded by another Judge or Magistrate who has and who
exercises such jurisdiction, the Judge or Magistrate so
succeeding may act on the evidence so recorded by his
predecessor, or partly recorded by his predecessor and partly
recorded by himself: Provided that if the succeeding Judge or
Magistrate is of opinion that further examination of any of the
witnesses whose evidence has already been recorded is
necessary in the interests of Justice, he may re-summon any
such witness, and after such further examination, crossexamination
and re-examination, if any, as he may permit, the
witness shall be discharged.
(2) When a case is transferred under the provisions of this
Code from one judge to another Judge or from one Magistrate
to another Magistrate, the former shall be deemed to cease to
exercise jurisdiction therein, and to be succeeded by the latter,
within the meaning of sub-section (1).
(3) Nothing in this section applies to summary trials or to
cases in which proceedings have been stayed under section 322
or in which proceedings have been submitted to a superior
Magistrate under section 325.
Section 353 - Judgment
(1) The judgment in every trial in any Criminal Court of
original jurisdiction shall be pronounced in open Court by the
presiding officer immediately after the termination of the trial
or at some subsequent time of which notice shall be given to the
parties or their pleaders,—
(a) by delivering the whole of the judgment; or
(b) by reading out the whole of the judgment; or
(c) by reading out the operative part of the judgment and
explaining the substance of the judgment in a language
which is understood by the accused or his pleader.
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(2) Where the judgment is delivered under clause (a) of subsection
(1), the presiding officer shall cause it to be taken down
in short-hand, sign the transcript and every page thereof as
soon as it is made ready, and write on it the date of the delivery
of the judgment in open Court.
(3) Where the judgment or the operative part thereof is read out
under clause (b) or clause (c) of sub-section (1), as the case
may be, it shall be dated and signed by the presiding officer in
open Court, and if it is not written with his own hand, every
page of the judgment shall be signed by him.
(4) Where the judgment is pronounced in the manner specified
in clause (c) of sub-section (1), the whole judgment or a copy
thereof shall be immediately made available for the perusal of
the parties or their pleaders free of cost.
(5) If the accused is in custody, he shall be brought up to hear
the judgment pronounced.
(6) If the accused is not in custody, he shall be required by the
Court to attend to hear the judgment pronounced, except where
his personal attendance during the trial has been dispensed
with and the sentence is one of fine only or he is acquitted:
Provided that, where there are more accused than one,
and one or more of them do not attend the Court on the date on
which the judgment is to be pronounced, the presiding officer
may, in order to avoid undue delay in the disposal of the case,
pronounce the judgment notwithstanding their absence.
(7) No judgment delivered by any Criminal Court shall be
deemed to be invalid by reason only of the absence of any party
or his pleader on the day or from the place notified for the
delivery thereof, or of any omission to serve, or defect in
serving, on the parties or their pleaders, or any of them, the
notice of such day and place.
(8) Nothing in this section shall be construed to limit in any
way the extent of the provisions of Section 465.
Section 354 - Language and contents of judgment.
(1) Except as otherwise expressly provided by this Code, every
judgment referred to in Section 353,—
(a) shall be written in the language of the Court;
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(b) shall contain the point or points for determination,
the decision thereon and the reasons for the decision;
(c) shall specify the offence (if any) of which, and the
section of the Indian Penal Code (45 of 1860) or other
law under which, the accused is convicted and the
punishment to which he is sentenced;
(d) if it be a judgment of acquittal, shall state the offence
of which the accused is acquitted and direct that he be set
at liberty.
Section 357 - Order to pay compensation:
(1) When a Court imposes a sentence of fine or a sentence
(including a sentence of death) of which fine forms a part, the
Court may, when passing judgment, order the whole or any
part of the fine recovered to be applieda)
in defraying the expenses properly incurred in the
prosecution;
b) in the payment to any person of compensation for
any loss or injury caused by the offence, when
compensation is, in the opinion of the Court, recoverable
by such person in a civil court;
c) when any person is convicted of any offence for
having caused the death of another person or of having
abetted the commission of such an offence, in paying
compensation to the persons who are, under the Fatal
Accidents Act, 1855 (13 of 1855), entitled to recover
damages from the person sentenced for the loss resulting
to them from such death;
d) when any person is convicted of any offence which
includes theft, criminal misappropriation, criminal
breach of trust, or cheating, or of having dishonestly
received or retained, or of having voluntarily assisted in
disposing of, stolen property knowing or having reason
to believe the same to be stolen, in compensating any
bona fide purchaser of such property for the loss of the
same if such property is restored to the possession of the
person entitled thereto.
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(2) If the fine is imposed in a case which is subject to appeal,
no such payment shall be made before the period allowed for
presenting the appeal has elapsed, or, if an appeal be
presented, before the decision of the appeal.
(3) When a Court imposes a sentence, of which fine does not
form a part, the Court may, when passing judgment, order the
accused person to pay, by way of compensation, such amount
as may be specified in the order to the person who has suffered
any loss or injury by reason of the act for which the accused
person has been so sentenced.
(4) An order under this section may also be made by an
Appellate Court or by the High Court or Court of Session when
exercising its powers of revision.
(5) At the time of awarding compensation in any subsequent
civil suit relating to the same matter, the Court shall take into
account any sum paid or recovered as compensation under this
section.
Section 357A - Victim Compensation Scheme
(1) Every State Government in co-ordination with the
Central Government shall prepare a scheme for providing
funds for the purpose of compensation to the victim or his
dependent who has suffered loss or injury as a result of the
crime and who require rehabilitation.
(2) Whenever a recommendation is made by the Court for
compensation, the District Legal Service Authority or the State
Legal Service Authority, as the case may be, shall decide the
quantum of compensation to be awarded under the scheme
referred to in sub-section (1).
(3) If the trial Court, at the conclusion of the trial, is
satisfied, that the compensation awarded under Section 357 is
not adequate for such rehabilitation, or where the cases end in
acquittal or discharge and the victim has to be rehabilitated, it
may make recommendation for compensation.
(4) Where the offender is not traced or identified, but the
victim is identified, and where no trial takes place, the victim or
his dependents may make an application to the State or the
District Legal Services Authority for award of compensation.
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(5) On receipt of such recommendations or on the
application under sub-section (4), the State or the District
Legal Services Authority shall, after due enquiry award
adequate compensation by completing the enquiry within two
months.
(6) The State or the District Legal Services Authority, as the
case may be, to alleviate the suffering of the victim, may order
for immediate first-aid facility or medical benefits to the be
made available free of cost on the certificate of the police
officer not below the rank of the officer in charge of the police
station or a Magistrate of the area concerned, or any other
interim relief as the appropriate authority deems fit.
Section 407 - Power of High Court to transfer cases and
appeals
(1) Whenever it is made to appear to the High Court:
(a) that a fair and impartial inquiry or trial cannot be
had in any Criminal Court subordinate thereto, or
(b) that some question of law of unusual difficulty is
likely to arise, or
(c) that an order under this section is required by any
provision of this Code, or will tend to the general
convenience of the parties or witnesses, or is expedient
for the ends of justice,
it may order—
(i) that any offence be inquired into or tried by
any Court not qualified under Sections 177 to 185
(both inclusive), but in other respects competent to
inquire into or try such offence;
(ii) that any particular case or appeal, or class
of cases or appeals, be transferred from a
Criminal Court subordinate to its authority to any
other such Criminal Court of equal or superior
jurisdiction;
(iii) that any particular case be committed for
trial to a Court of Session; or
(iv) that any particular case or appeal be
transferred to and tried before itself.
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(2) The High Court may act either on the report of the lower Court,
or on the application of a party interested, or on its own initiative:
Provided that no application shall lie to the High Court for
transferring a case from one Criminal Court to another Criminal
Court in the same sessions division, unless an application for such
transfer has been made to the Sessions Judge and rejected by him.
(3) Every application for an order under sub-section (1) shall be
made by motion, which shall, except when the applicant is the
Advocate-General of the State, be supported by affidavit or
affirmation.
(4) When such an application is made by an accused person, the
High Court may direct him to execute a bond, with or without
sureties, for the payment of any compensation which the High Court
may award under sub-section (7).
(5) Every accused person making such application shall give to the
Public Prosecutor notice in writing of the application, together with a
copy of the grounds on which it is made; and no order shall be made
on the merits of the application unless at least twenty-four hours have
elapsed between the giving of such notice and the hearing of the
application.
(6) Where the application is for the transfer of a case or appeal
from any subordinate Court, the High Court may, if it is satisfied that
it is necessary so to do in the interests of justice, order that, pending
the disposal of the application, the proceedings in the subordinate
Court shall be stayed, on such terms as the High Court may think fit
to impose:
(7) Provided that such stay shall not affect the subordinate Court‟s
power of remand under Section 309.
(8) Where an application for an order under sub-section (1) is
dismissed, the High Court may, if it is of opinion that the application
was frivolous or vexatious, order the applicant to pay by way of
compensation to any person who has opposed the application such
sum not exceeding one thousand rupees as it may consider proper in
the circumstances of the case.
(9) When the High Court orders under sub-section (1) that a case
be transferred from any Court for trial before itself, it shall observe in
such trial the same procedure which that Court would have observed
if the case had not been so transferred.
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(10) Nothing in this section shall be deemed to affect any order of
Government under Section 197
Section 460 - Irregularities which do not vitiate proceedings
If any Magistrate not empowered by law to do any of the following
things, namely:—
(a) to issue a search-warrant under Section 94;
(b) to order, under Section 155, the police to investigate an
offence;
(c) to hold an inquest under Section 176;
(d) to issue process under Section 187, for the apprehension of a
person within his local jurisdiction who has committed an
offence outside the limits of such jurisdiction;
(e) to take cognizance of an offence under clause (a) or clause (b)
of sub-section (1) of Section 190;
(f) to make over a case under sub-section (2) of Section 192;
(g) to tender a pardon under Section 306;
(h) to recall a case and try it himself under Section 410; or
(i) to sell property under Section 458 or Section 459,
erroneously in good faith does that thing, his proceedings shall not be
set aside merely on the ground of his not being so empowered.
Section 461 - Irregularities which vitiate proceedings
If any Magistrate, not being empowered by law in this behalf, does
any of the following things, namely:—
(a) attaches and sells property under Section 83;
(b) issues a search-warrant for a document, parcel or other thing
in the custody of a postal or telegraph authority;
(c) demands security to keep the peace;
(d) demands security for good behaviour;
(e) discharges a person lawfully bound to be of good behaviour;
(f) cancels a bond to keep the peace;
(g) makes an order for maintenance;
(h) makes an order under Section 133 as to a local nuisance;
(i) prohibits, under Section 143, the repetition or continuance of
a public nuisance;
(j) makes an order under Part C or Part D of Chapter X;
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(k) takes cognizance of an offence under clause (c) of sub-section
(1) of Section 190;
(l) tries an offender;
(m) tries an offender summarily;
(n) passes a sentence, under Section 325, on proceedings
recorded by another Magistrate;
(o) decides an appeal;
(p) calls, under Section 397, for proceedings; or
(q) revises an order passed under Section 446,
his proceedings shall be void.
Section 462 - Proceedings in wrong place
No finding, sentence or order of any Criminal Court shall be set aside
merely on the ground that the inquiry, trial or other proceedings in
the course of which it was arrived at or passed, took place in a wrong
sessions division, district, sub-division or other local area, unless it
appears that such error has in fact occasioned a failure of justice.
Section 465 - Finding or sentence when reversible by reason
of error, omission or irregularity
(1) Subject to the provisions hereinbefore contained, no finding,
sentence or order passed by a Court of competent jurisdiction shall be
reversed or altered by a Court of appeal, confirmation or revision on
account of any error, omission or irregularity in the complaint,
summons, warrant, proclamation, order, judgment or other
proceedings before or during trial or in any inquiry or other
proceedings under this Code, or any error, or irregularity in any
sanction for the prosecution unless in the opinion of that Court, a
failure of justice has in fact been occasioned thereby.
(2) In determining whether any error, omission or irregularity in any
proceeding under this Code, or any error, or irregularity in any
sanction for the prosecution has occasioned a failure of justice, the
Court shall have regard to the fact whether the objection could and
should have been raised at an earlier stage in the proceedings.
Section 483 - Duty of High Court to exercise continuous
superintendence over Courts of Judicial Magistrates
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Every High Court shall so exercise its superintendence over the
Courts of Judicial Magistrates subordinate to it as to ensure that
there is an expeditious and proper disposal of cases by such
Magistrates.
Relevant Judgments
Powers of the High Court
97. In Hari Vishnu Kamath v. Syed Ahmad Ishaque, (1955) 1 SCR
1104, the Supreme Court held that Article 227 of the Constitution confers
the power of Superintendence to the High Courts, both on judicial and
administrative side. Relevant portion of the said judgment is reproduced
hereunder:
“20. We are also of opinion that the Election Tribunals are
subject to the superintendence of the High Courts under Article
227 of the Constitution, and that superintendence is both
judicial and administrative. That was held by this Court in
Waryam Singh v. Amarnath [1954 SCR 565] where it was
observed that in this respect Article 227 went further than
Section 224 of the Government of India Act, 1935, under which
the superintendence was purely administrative, and that it
restored the position under Section 107 of the Government of
India Act, 1915. It may also be noted that while in a certiorari
under Article 226 the High Court can only annul the decision of
the Tribunal, it can, under Article 227, do that, and also issue
further directions in the matter. We must accordingly hold that
the application of the appellant for a writ of certiorari and for
other reliefs was maintainable under Articles 226 and 227 of
the Constitution.”
(Emphasis Supplied)
98. In Ranbir Yadav v. State of Bihar, (1995) 4 SCC 392, the Supreme
Court dismissed the challenge to the transfer of a case by the High Court on
administrative side holding that the High Court is empowered to transfer a
case on administrative side as well as judicial side and both the powers
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coexist. Relevant portion of the said judgment is reproduced hereunder:
“13. …So long as power can be and is exercised purely for
administrative exigency without impinging upon and
prejudicially affecting the rights or interests of the parties to
any judicial proceeding we do not find any reason to hold that
administrative powers must yield place to judicial powers
simply because in a given circumstance they coexist. On the
contrary, the present case illustrates how exercise of
administrative powers were more expedient, effective and
efficacious. If the High Court had intended to exercise its
judicial powers of transfer invoking Section 407 of the Code it
would have necessitated compliance with all the procedural
formalities thereof, besides providing adequate opportunities to
the parties of a proper hearing which, resultantly, would have
not only delayed the trial but further incarceration of some of
the accused. It is obvious, therefore, that by invoking its power
of superintendence, instead of judicial powers, the High Court
not only redressed the grievances of the accused and others
connected with the trial but did it with utmost dispatch.”
(Emphasis Supplied)
99. In Achutananda Baidya v. Prafullya Kumar Gayen, (1997) 5 SCC
76, the Supreme Court held that the High Court has both administrative as
well as judicial power of superintendence under Article 227 of the
Constitution. Relevant portion of the judgment is as under:
“10. The power of superintendence of the High Court under
Article 227 of the Constitution is not confined to administrative
superintendence only but such power includes within its sweep
the power of judicial review. The power and duty of the High
Court under Article 227 is essentially to ensure that the courts
and tribunals, inferior to High Court, have done what they were
required to do. Law is well settled by various decisions of this
Court that the High Court can interfere under Article 227 of the
Constitution in cases of erroneous assumption or acting beyond
its jurisdiction, refusal to exercise jurisdiction, error of law
apparent on record as distinguished from a mere mistake of
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law, arbitrary or capricious exercise of authority or discretion,
a patent error in procedure, arriving at a finding which is
perverse or based on no material, or resulting in manifest
injustice. As regards finding of fact of the inferior court, the
High Court should not quash the judgment of the subordinate
court merely on the ground that its finding of fact was
erroneous but it will be open to the High Court in exercise of
the powers under Article 227 to interfere with the finding of fact
if the subordinate court came to the conclusion without any
evidence or upon manifest misreading of the evidence thereby
indulging in improper exercise of jurisdiction or if its
conclusions are perverse.”
100. In Kamlesh Kumar v. State of Jharkhand, (2013) 15 SCC 460, the
Supreme Court rejected the challenge to the transfer of a case by the High
Court on administrative side on the ground that the High Court can transfer
the case by exercising its administrative power of superintendence under
Article 227 read with Article 235 of the Constitution of India. Relevant
portion of the said judgment is reproduced hereunder:
“21. The High Court does have the power to transfer the cases
and appeals under Section 407 CrPC which is essentially a
judicial power. Section 407(1)(c) CrPC lays down that, where it
will tend to the general convenience of the parties or witnesses,
or where it was expedient for the ends of justice, the High Court
could transfer such a case for trial to a Court of Session. That
does not mean that the High Court cannot transfer cases by
exercising its administrative power of superintendence which is
available to it under Article 227 of the Constitution of India.
While repelling the objection to the exercise of this power, this
Court observed in para 13 of Ranbir Yadav [Ranbir Yadav v.
State of Bihar, (1995) 4 SCC 392: 1995 SCC (Cri) 728] ……
22. For the reasons stated above, there is no substance in the
objections raised by the petitioners. The High Court has looked
into Section 407 CrPC, referred to Articles 227 and 235 of the
Constitution of India, and thereafter in its impugned judgment
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[Kamlesh Kumar v. State of Jharkhand, WP (Cri) No. 95 of
2003, decided on 19-7-2012 (Jhar)] has observed as follows:
“Having perused Section 407 CrPC and Articles
227 and 235, I have no hesitation to hold that this
Court either on the administrative side or in the
judicial side has absolute jurisdiction to transfer
any criminal cases pending before one competent
court to be heard and decided by another court
within the jurisdiction of this Court. This Court in
its administrative power can issue direction that
cases of particular nature shall be heard by
particular court having jurisdiction.”
In view of what is stated earlier, we have no reason to take a
view different from the one taken by the High Court. Both the
special leave petitions (criminal) are, therefore, dismissed.”
101. In Ajay Singh v. State of Chhattisgarh, (2017) 3 SCC 330, the
Supreme Court rejected the challenge to the transfer of a case by the High
Court on administrative side. Relevant portion of the said judgment is
reproduced hereunder:
“28. In the case at hand, the High Court on the administrative
side had transferred the case to the learned Sessions Judge by
which it has conferred jurisdiction on the trial court which has
the jurisdiction to try the sessions case under CrPC. Thus, it
has done so as it has, as a matter of fact, found that there was
no judgment on record. There is no illegality. Be it noted, the
Division Bench in the appeal preferred at the instance of the
present appellants thought it appropriate to quash the order as
there is no judgment on record but a mere order-sheet. In a
piquant situation like the present one, we are disposed to think
that the High Court was under legal obligation to set aside the
order as it had no effect in law. The High Court has correctly
done so as it has the duty to see that sanctity of justice is not
undermined. The High Court has done so as it has felt that an
order which is a mere declaration of result without the
judgment should be nullified and become extinct.
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29. The case at hand constrains us to say that a trial Judge
should remember that he has immense responsibility as he has
a lawful duty to record the evidence in the prescribed manner
keeping in mind the command postulated in Section 309 CrPC
and pronounce the judgment as provided under the Code. A
Judge in charge of the trial has to be extremely diligent so that
no dent is created in the trial and in its eventual conclusion.
Mistakes made or errors committed are to be rectified by the
appellate court in exercise of “error jurisdiction”. That is a
different matter. But, when a situation like the present one
crops up, it causes agony, an unbearable one, to the cause of
justice and hits like a lightning in a cloudless sky. It hurts the
justice dispensation system and no one, and we mean no one,
has any right to do so. The High Court by rectifying the grave
error has acted in furtherance of the cause of justice. The
accused persons might have felt delighted in acquittal and
affected by the order of rehearing, but they should bear in mind
that they are not the lone receivers of justice. There are victims
of the crime. Law serves both and justice looks at them equally.
It does not tolerate that the grievance of the victim should be
comatosed in this manner.”
102. In S. J. Chaudhri v. State, 2006 SCC OnLine Del 797, the Division
Bench of this Court rejected the challenge to the transfer of a case by the
High Court from one Session to another on administrative side. Relevant
portion of the said judgment is as under:-
“6. … this is not a case of transfer simplicitor from one
Sessions Judge to another, but a case where arguments stand
more or less concluded in the Court of a particular Sessions
Judge and the Chief Justice on the administrative side has
deemed it expedient, for the ends of justice, to order that the
Sessions Judge who has heard the arguments in extenso
pronounce judgment in the case.
7. We say so on the basis of the records which have been
scrutinized by us, and on such scrutiny it was found by us that
arguments in the case had been heard by Ms. Mamta Sehgal,
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Additional Sessions Judge on more than thirty different dates,
i.e. on 27.10.2004, 1.11.2004, 14.12.2004, 15.12.2004,
16.12.2004, 31.1.2005, 1.2.2005, 18.2.2005, 24.2.2005,
28.2.2005, 1.3.2005, 10.3.2005, 17.3.2005, 22.3.2005,
23.3.2005, 19.4.2005, 21.4.2005, 25.4.2005, 8.7.2005,
22.7.2005, 26.7.2005, 27.7.2005, 9.8.2005, 24.8.2005,
25.8.2005, 20.9.2005, 21.9.2005, 28.9.2005, 31.10.2005,
9.11.2005 and 18.11.2005. To say that arguments had been
more or less completed cannot, in such circumstances, be stated
to be incorrect. This being the position and the complainant
(father of the deceased) being over 90 years of age, in our
considered opinion, it cannot be said that the orders passed by
the Hon'ble Chief Justice on the administrative side were
uncalled for or in any manner prejudicial to the
petitioner/accused.
8. In Ranbir Yadav v. State of Bihar, (1995) 4 SCC 392, the
High Court had exercised the power of transfer on the petition
filed by the accused from jail, inter alia, complaining that they
could not be accommodated in the Court room as a result of
which some of them had to remain outside. This order was
challenged before the Supreme Court on the ground that
administrative power could not be exercised when judicial
power was not only available and operational, but was equally
effective and efficacious. The Supreme Court held that so long
as power can be and is exercised purely for administrative
exigency without impinging upon and prejudicially affecting the
rights or interests of the parties to any judicial proceedings, it
could not be said that administrative powers must yield to
judicial powers simply because they happened to co-exist in a
given case.
9. Applying the ratio of the decision in Ranbir Yadav's case
(supra), it cannot be said that the exercise of administrative
power in the instant case by the head of the High Court was not
supported by any good or cogent reason or that the same was
vexatious to the accused in any manner. Here is a case where
the father of the deceased has been in pursuit of justice for the
last 23 years. He is over 94 years of age and has yet to come to
terms with his son's brutal murder. Arguments have been heard
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at length on over 30 dates by a Sessions Judge with whom the
case has been pending for the last over 5 years. Yet the course
of justice is sought to be obstructed by the present transfer
petition praying for re-transfer of the case to a Sessions Judge
who will have to hear arguments from the scratch. Should such
a prayer be entertained at the behest of the accused? We are of
the considered view that the answer to this must be in the
negative, for, in our view, any exercise of powers as contained
under Sections 407 and 482 of the Code of Criminal Procedure
for the aforesaid purpose would not only further delay the
disposal of the case, which has been pending already for over
23 years, but would cause untold hardship to the complainant,
apart from the fact that the State through the CBI would have to
de novo argue the matter.
10. Before parting with the order, we deem it expedient to refer
to the contention of the petitioner that fair and impartial justice
will not be done to him if the matter is heard and decided by
Ms. Mamta Sehgal. To say the least, we find no reason for such
an apprehension on the part of the petitioner. Merely for the
petitioner to allege that he will not get impartial justice, to our
mind, is wholly insufficient. The question really is whether the
petitioner can be said to entertain reasonably an apprehension
that he would not get justice. It is not any and every
apprehension in the mind of the accused that can be termed as
reasonable apprehension. Apprehension must not only be
entertained, but must also appear to the Court to be reasonable
and justified by facts and circumstances. Facts and
circumstances are otherwise. The petitioner did not entertain
any apprehension from the year 2001 when the matter was
posted with Ms. Mamta Sehgal, Additional Sessions Judge till
the year 2006 when her posting was changed. But now all of a
sudden he expresses apprehension that the learned Additional
Sessions Judge may not render impartial justice. Can his
apprehension be termed a reasonable one? In the attendant
circumstances and in view of the fact that no case of any real
bias has been made out by him, the answer to this question must
be in the negative. It cannot be also lost sight of that though
assurance of a fair trial is the final imperative of the
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dispensation of justice, hyper-sensitivity cannot be allowed to
impede the course of justice to such an extent that the resultant
delay results in failure of justice. Also, normally the
complainant has a right to choose any Court having
jurisdiction and the accused cannot dictate where the case
against him should be tried.”
103. In Willie (William) Slaney v. State of M.P., (1955) 2 SCR 1140, the
Supreme Court held that every error or omission in the trial would not vitiate
the trial unless the accused can show substantial prejudice. Relevant portion
of the judgment is reproduced hereunder:-
“5. … the Code is a code of procedure and, like all procedural
laws, is designed to further the ends of justice and not to
frustrate them by the introduction of endless technicalities. The
object of the Code is to ensure that an accused person gets a
full and fair trial along certain well established and wellunderstood
lines that accord with our notions of natural justice.
If he does, if he is tried by a competent court, if he is told and
clearly understands the nature of the offence for which he is
being tried, if the case against him is fully and fairly explained
to him and he is afforded a full and fair opportunity of
defending himself, then, provided there is substantial
compliance with the outward forms of the law, mere mistakes in
procedure, mere inconsequential errors and omissions in the
trial are regarded as venal by the Code and the trial is not
vitiated unless the accused can show substantial prejudice.
That, broadly speaking, is the basic principle on which the
Code is based.
xxx xxx xxx
8. Next comes a class of case for which there is no express
provision in the Code, or where there is ambiguity. In that
event, the question is whether the trial has been conducted in
substantial compliance with the Code or in a manner
substantially different from that prescribed.
“When a trial is conducted in a manner different
from that prescribed by the Code (as in N.A.
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Subramania Iyer case [(1901) LR 28 IA 257, 263],
the trial is bad and no question of curing an
irregularity arises; but if the trial is conducted
substantially in the manner prescribed by the
Code, but some irregularity occurs in the course of
such conduct, the irregularity can be cured under
Section 537, and nonetheless so because the
irregularity involves, as must nearly always be the
case, a breach of one or more of the very
comprehensive provisions of the Code”. Pulukuri
Kotayya v. King-Emperor [(1947) LR 74 IA 65,
75].
9. Now it is obvious that the question of curing an irregularity
can only arise when one or more of the express provisions of
the Code is violated. The question in such cases is whether the
departure is so violent as to strike at the root of the trial and
make it no trial at all or is of a less vital character. It is
impossible to lay down any hard and fast rule but taken by and
large the question usually narrows down to one of prejudice. In
any case, the courts must be guided by the plain provisions of
the Code without straining at its language wherever there is an
express provision.
10. For a time it was thought that all provisions of the Code
about the mode of trial were so vital as to make any departure
therefrom an illegality that could not be cured. That was due to
the language of the Judicial Committee in N.A. Subramania
Iyer v. King-Emperor [(1938) 65 AIR 158, 175].
11. Later, this was construed to mean that that only applies
when there is an express prohibition and there is prejudice. In
Subramania Iyer case [(1901) LR 28 IA 257, 263] the Privy
Council said:
“The remedying of mere irregularities is familiar
in most systems of jurisprudence, but it would be
an extraordinary extension of such a branch of
administering the criminal law to say that when
the Code positively enacts that such a trial as that
which has taken place here shall not be permitted
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that this contravention of the Code comes within
the description of error, omission or irregularity.”
This was examined and explained in Abdul Rahman v. King-
Emperor (1926) LR 54 IA 96, 109 as follows:
“The procedure adopted was one which the Code
positively prohibited, and it was possible that it
might have worked actual injustice to the
accused.”
12. …………Except where there is something so vital as to cut
at the root of jurisdiction or so abhorrent to what one might
term natural justice, the matter resolves itself to a question of
prejudice. Some violations of the Code will be so obvious that
they will speak for themselves as, for example, a refusal to give
the accused a hearing, a refusal to allow him to defend himself,
a refusal to explain the nature of the charge to him and so
forth. These go to the foundations of natural justice and would
be struck down as illegal forthwith. It hardly matters whether
this is because prejudice is then patent or because it is so
abhorrent to well-established notions of natural justice that a
trial of that kind is only a mockery of a trial and not of the kind
envisaged by the laws of our land, because either way they
would be struck down at once. Other violations will not be so
obvious and it may be possible to show that having regard to
all that occurred no prejudice was occasioned or that there was
no reasonable probability of prejudice. In still another class of
case, the matter may be so near the border line that very slight
evidence of a reasonable possibility of prejudice would swing
the balance in favour of the accused.
xxx xxx xxx
15…The real question is not whether a matter is expressed
positively or is stated in negative terms but whether disregard
of a particular provision amounts to substantial denial of a trial
as contemplated by the Code and understood by the
comprehensive expression “natural justice”.
xxx xxx xxx
17. This, we feel, is the true intent and purpose of Section
537(a) which covers every proceeding taken with jurisdiction in
the general phrase “or other proceedings under this Code”. It
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is for the Court in all these cases to determine whether there
has been prejudice to the accused; and in doing so to bear in
mind that some violations are so obviously opposed to natural
justice and the true intendment of the Code that on the face of
them and without anything else they must be struck down, while
in other cases a closer examination of all the circumstances
will be called for in order to discover whether the accused has
been prejudiced.”
Concept of „Illegality‟ and „Irregularity‟ in CrPC
104. In Pulukuri Kotayya v. King-Emperor, (1948) LR 74 IA 65, the Privy
Council held that the distinction drawn in many of the cases in India
between an illegality and an irregularity is one of degree rather than of kind.
Relevant portion of the judgment is reproduced hereunder:
“…but if the trial is conducted substantially in the manner
prescribed by the Code, but some irregularity occurs in the
course of such conduct, the irregularity can be cured under s.
537, and none the less so because the irregularity involves, as
must nearly always be the case, a breach of one or more of the
very comprehensive provisions of the Code. The distinction
drawn in many of the cases in India between an illegality and
an irregularity is one of degree rather than of kind.”
(Emphasis Supplied)
105. In Willie (William) Slaney v. State of M.P. (supra), the Constitution
Bench of the Supreme Court held that the irregularity is curable if it has not
resulted in failure of justice but the irregularity is not curable if it has
resulted in failure of justice. Relevant portion of the said judgment is
reproduced hereunder:
“31. The sort of problem that we are now examining can only
arise when an express provision of the Code is violated and
then the root of the matter is not whether there is violation of an
express provision, for the problem postulates that there must
be, nor is it whether the provision is expressed in positive or in
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negative terms, but what are the consequences of such
disregard. Does it result in an illegality that strikes at the root
of the trial and cannot be cured or is it an irregularity that is
curable?
32. We have used the terms “illegality” and “irregularity”
because they have acquired a technical significance and are
convenient to demarcate a distinction between two classes of
case. They were first used by the Privy Council in N.A.
Subramania Iyer v. King-Emperor [(1901) LR 28 IA 257] and
repeated in Babulal Choukhani v. King-Emperor [(1938) LR 65
IA 158, 174] and in Pululkuri Kotayya v. King-Emperor
[(1947) LR 74 IA 65, 75] but it is to be observed that the Code
does not use the term “illegality”. It refers to both classes as
“irregularities”; some vitiate the proceedings (Section 530)
and others do not (Section 529). Proceedings that come under
the former head are “void”. Section 535 uses the words “shall
be deemed invalid” which indicate that a total omission to
frame a charge would render the conviction invalid but for
Section 535 which serves to validate it when that sort of
“irregularity” has not occasioned a “failure of justice”.
Section 537 does not use any of these expressions but merely
says that no conviction or sentence “shall be reversed or
altered” unless there has in fact been a failure of justice.
33. We do not attach any special significance to these terms.
They are convenient expressions to convey a thought and that is
all. The essence of the matter does not lie there. It is embedded
in broader considerations of justice that cannot be reduced to a
set formula of words or rules. It is a feeling, a way of thinking
and of living that has been crystallized into judicial thought and
is summed up in the admittedly vague and indefinite expression
“natural justice”: something that is incapable of being reduced
to a set formula of words and yet which is easily recognizable
by those steeped in judicial thought and tradition. In the end, it
all narrows down to this: some things are “illegal”, that is to
say, not curable, because the Code expressly makes them so;
others are struck down by the good sense of Judges who,
whatever expressions they may use, do so because those things
occasion prejudice and offend their sense of fair play and
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justice. When so struck down, the conviction is “invalid”; when
not, it is good whatever the “irregularity”. It matters little
whether this is called an “illegality”, an “irregularity” that
cannot be cured or an “invalidity”, so long as the terms are
used in a clearly defined sense.”
Concept of “Failure of Justice”
106. In Darbara Singh v. State of Punjab, (2012) 10 SCC 476, the
accused challenged the conviction under Section 302 IPC on the ground of
defect of framing of charges. The Supreme Court rejected the challenge on
the ground that there was no failure of justice. The Supreme Court held that
“Failure of Justice” means serious prejudice caused to the accused.
Relevant portion of the judgment is reproduced hereunder:
“21. “Failure of justice” is an extremely pliable or facile
expression, which can be made to fit into any situation in any
case. The court must endeavour to find the truth. There would
be “failure of justice”; not only by unjust conviction, but also
by acquittal of the guilty, as a result of unjust failure to produce
requisite evidence. Of course, the rights of the accused have to
be kept in mind and also safeguarded, but they should not be
overemphasised to the extent of forgetting that the victims also
have rights. It has to be shown that the accused has suffered
some disability or detriment in respect of the protections
available to him under the Indian criminal jurisprudence.
“Prejudice” is incapable of being interpreted in its generic
sense and applied to criminal jurisprudence. The plea of
prejudice has to be in relation to investigation or trial, and not
with respect to matters falling outside their scope. Once the
accused is able to show that there has been serious prejudice
caused to him, with respect to either of these aspects, and that
the same has defeated the rights available to him under
criminal jurisprudence, then the accused can seek benefit under
the orders of the court.”
107. In Willie (William) Slaney (supra), the Supreme Court held that the
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irregularities relating to the charge would not vitiate the conviction if the
accused knew what he was being tried for; main facts sought to be
established against him were explained to him clearly and fairly; and if he
was given a full and fair chance to defend himself. Relevant portion of the
said judgment is reproduced hereunder:
“43… But when all is said and done, what we are concerned to
see is whether the accused had a fair trial, whether he knew
what he was being tried for, whether the main facts sought to be
established against him were explained to him fairly and
clearly and whether he was given a full and fair chance to
defend himself. If all these elements are there and no prejudice
is shown, the conviction must stand whatever the irregularities
whether traceable to the charge or to a want of one.”
(Emphasis Supplied)
108. In State of M.P. v. Bhooraji, (2001) 7 SCC 679, the Supreme Court
held that the irregularity of the Sessions Court taking cognizance of the
offence without the case being committed has not caused any prejudice to
the accused. The Supreme Court further held that any de novo trial should be
the last resort and that too only when such a course becomes so desperately
indispensable. It should be limited to the extreme exigency to avert “a
failure of justice”. Any omission or even the illegality in the procedure
which does not affect the core of the case is not a ground for ordering a de
novo trial. Relevant portion of the said judgment is reproduced hereunder:
“8…. A de novo trial should be the last resort and that too only
when such a course becomes so desperately indispensable. It
should be limited to the extreme exigency to avert “a failure of
justice”. Any omission or even the illegality in the procedure
which does not affect the core of the case is not a ground for
ordering a de novo trial. This is because the appellate court has
plenary powers for revaluating and reappraising the evidence
and even to take additional evidence by the appellate court
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itself or to direct such additional evidence to be collected by the
trial court. But to replay the whole laborious exercise after
erasing the bulky records relating to the earlier proceedings, by
bringing down all the persons to the court once again for
repeating the whole depositions would be a sheer waste of time,
energy and costs unless there is miscarriage of justice
otherwise. Hence the said course can be resorted to when it
becomes unpreventable for the purpose of averting “a failure of
justice”. The superior court which orders a de novo trial
cannot afford to overlook the realities and the serious impact
on the pending cases in trial courts which are crammed with
dockets, and how much that order would inflict hardship on
many innocent persons who once took all the trouble to reach
the court and deposed their versions in the very same case. To
them and the public the re-enactment of the whole labour might
give the impression that law is more pedantic than pragmatic.
Law is not an instrument to be used for inflicting sufferings on
the people but for the process of justice dispensation.”
xxx xxx xxx
“17. It is an uphill task for the accused in this case to show that
failure of justice had in fact occasioned merely because the
specified Sessions Court took cognizance of the offences
without the case being committed to it. The normal and correct
procedure, of course, is that the case should have been
committed to the Special Court because that court being
essentially a Court of Session can take cognizance of any
offence only then. But if a specified Sessions Court, on the basis
of the legal position then felt to be correct on account of a
decision adopted by the High Court, had chosen to take
cognizance without a committal order, what is the disadvantage
of the accused in following the said course?”
109. In Hanumant Dass v. Vinay Kumar, (1982) 2 SCC 177, the Supreme
Court rejected the challenge to the conviction on the ground that the case
was transferred to a Court which did not have territorial jurisdiction as it has
not resulted in failure of justice. Relevant portion of the said judgment is
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reproduced hereunder:-
“16. Assuming for the sake of argument, that there were certain
irregularities in the procedure the judgment of the High Court
could not be set aside unless it was shown by the appellant that
there has been failure of justice…
17. We have perused the judgment of the High Court which was
placed before us in full. It shows that each and every aspect of
the matter has been thoroughly discussed and the High Court
has also referred to the error committed by the Sessions Judge
in the approach of the case and also in making unwarranted
assumptions.”
(Emphasis Supplied)
Section 462 CrPC protects the irregularity pertaining to lack of
jurisdiction
110. In State of Karnataka v. Kuppuswamy Gownder, (1987) 2 SCC 74,
the matter was transferred after framing of charge by the Principal Sessions
Judge from one Sessions Judge to another by a distribution memo without an
order under Sections 407 or 194 CrPC. The High Court set aside the
conviction on the ground of irregularity which was challenged before the
Supreme Court. The Supreme Court held that the irregularity in the
procedure has not resulted in failure of justice and therefore, the conviction
cannot be set aside. Relevant portion of the said judgment is reproduced
hereunder:
“14. The High Court, however, observed that provisions of
Section 465 CrPC cannot be made use of to regularise this
trial. No reasons have been stated for this conclusion. Section
465 CrPC reads as under…
xxx xxx xxx
It is provided that a finding or sentence passed by a court of
competent jurisdiction could not be set aside merely on the
ground of irregularity if no prejudice is caused to the accused.
It is not disputed that this question was neither raised by the
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accused at the trial nor any prejudice was pleaded either at the
trial or at the appellate stage and therefore in absence of any
prejudice such a technical objection will not affect the order or
sentence passed by competent court. Apart from Section 465,
Section 462 provides for remedy in cases of trial in wrong
places. Section 462 reads as under…
…This provision even saves a decision if the trial has taken
place in a wrong Sessions Division or sub-division or a district
or other local area and such an error could only be of some
consequence if it results in failure of justice, otherwise no
finding or sentence could be set aside only on the basis of such
an error.
15. It is therefore clear that even if the trial before the III
Additional City Civil and Sessions Judge would have in a
Division other than the Bangalore Metropolitan Area for which
III Additional City Civil and Sessions Judge is also notified to
be a Sessions Judge still the trial could not have been quashed
in view of Section 462. This goes a long way to show that even
if a trial takes place in a wrong place where the court has no
territorial jurisdiction to try the case still unless failure of
justice is pleaded and proved, the trial cannot be quashed. In
this view of the matter therefore reading Section 462 alongwith
Section 465 clearly goes to show that the scheme of the Code of
Criminal Procedure is that where there is no inherent lack of
jurisdiction merely either on the ground of lack of territorial
jurisdiction or on the ground of any irregularity of procedure
an order or sentence awarded by a competent court could not
be set aside unless a prejudice is pleaded and proved which will
mean failure of justice. But in absence of such a plea merely on
such technical ground the order or sentence passed by a
competent court could not be quashed.”
(Emphasis Supplied)
111. In Purushottamdas Dalmia v. State of W.B., (1962) 2 SCR 101, the
conviction was challenged by the accused on the ground that the offence was
not committed within the territorial limits of the Court which convicted him.
The Supreme Court held that there are two types of jurisdiction. First, being
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the power of the Court to try particular kind of offences and the second
being territorial jurisdiction attached to various courts for the sake of
convenience. The Supreme Court emphatically held that if a Court has no
jurisdiction to try a particular offence, then it would amount to be a flagrant
violation, which would render the entire trial void. However, similar
importance is not attached to an irregularity which arises due to territorial
jurisdiction of a Court. The Supreme Court further held that territorial
jurisdiction is provided just as a matter of convenience, keeping in mind the
administrative point of view with respect to the work of a particular court,
the convenience of the accused who will have to meet the charge leveled
against him and the convenience of the witnesses who have to appear before
the court. It is therefore provided in Section 177 CrPC that an offence would
ordinarily be tried by a court within the local limits of whose jurisdiction it
is committed. Relevant portion of the said judgment is reproduced
hereunder:
“13. It is true that the legislature treats with importance the
jurisdiction of courts for the trial of offences. Jurisdiction of
courts is of two kinds. One type of jurisdiction deals with
respect to the power of the courts to try particular kinds of
offences. That is a jurisdiction which goes to the root of the
matter and if a court not empowered to try a particular offence
does try it, the entire trial is void. The other jurisdiction is what
may be called territorial jurisdiction. Similar importance is not
attached to it. This is clear from the provisions of Sections 178,
188, 197(2) and 531 CrPC. Section 531 provides that:
“No finding, sentence or order of any criminal
court shall be set aside merely on the ground that
the enquiry, trial or other proceeding in the course
of which it was arrived at or passed, took place in
a wrong sessions division, district, sub-division or
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other local area, unless it appears that such error
has in fact occasioned a failure of justice.”
The reason for such a difference in the result of a case being
tried by a court not competent to try the offence and by a court
competent to try the offence but having no territorial
jurisdiction over the area where the offence was committed is
understandable. The power to try offences is conferred on all
courts according to the view the legislature holds with respect
to the capability and responsibility of those courts. The higher
the capability and the sense of responsibility, the larger is the
jurisdiction of those courts over the various offences.
Territorial jurisdiction is provided just as a matter of
convenience, keeping in mind the administrative point of view
with respect to the work of a particular court, the convenience
of the accused who will have to meet the charge levelled
against him and the convenience of the witnesses who have to
appear before the court. It is therefore that it is provided in
Section 177 that an offence would ordinarily be tried by a court
within the local limits of whose jurisdiction it is committed.”
112. In Ram Chandra Prasad v. State of Bihar, (1962) 2 SCR 50, the
Supreme Court rejected the objection that the Court did not have territorial
jurisdiction on the ground that it has not resulted in failure of justice.
Relevant portion of the said judgment is reproduced hereunder:
“8. In view of Section 531 of the code of Criminal Procedure,
the order of the Special Judge, Patna, is not to be set aside on
the ground of his having no territorial jurisdiction to try this
case, when no failure of justice has actually taken place. It is
contended for the appellant that Section 531 of the Code of
Criminal Procedure is not applicable to this case in view of
sub-section (1) of. Section 7 and Section 10 of the Criminal
Law Amendment Act. We do not agree. The former provision
simply lays down that such offences shall be triable by Special
Judges and this provision has not been offended against.
Section 10 simply provides that the cases triable by a Special
Judge under Section 7 and pending before a Magistrate
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immediately before the commencement of the Act shall be
forwarded for trial to the Special Judge having jurisdiction
over such cases. There is nothing in this section which leads to
the non-application of Section 531 of the Criminal Procedure
Code.”
113. In Padam Singh Thakur v. Madan Chauhan, 2016 SCC OnLine HP
4260, the conviction was challenged on the ground that the case was
adjudicated by the Judicial Magistrate, Shimla whereas it should have been
tried by the Judicial Magistrate, Theog. The Himachal Pradesh High Court
rejected the challenge on the ground that no prejudice whatsoever has been
caused to the accused. The Himachal Pradesh High Court held that Section
462 CrPC saves the judgments if the trial took place in a wrong Sessions
Division. Relevant portion of the judgment is as under:
“The expression “failure of justice” would appear, sometimes,
as an etymological chameleon. The Court has to examine
whether it is really a failure of justice or whether it is only a
camouflage. Justice is a virtue which transcends all barriers.
Neither the rules of procedure, nor (sic) technicalities of law
can stand in its way. Even the law bends before justice. The
order of the court should not prejudicial to anyone…….Law is
not an escape route for law breakers. If this is allowed, this
may lead to greater injustice than upholding the rule of the law.
The guilty man, therefore, should be punished, and in case
substantial justice has been done, it should be defeated when
pitted against technicalities.”
Procedure in Criminal Cases
114. In Bharti Arora v. State of Haryana, (2011) 1 RCR (Cri) 513 (2), the
Trial Judge prepared and signed a judgment but could not pronounce as the
accused did not appear before the court, despite various adjournment being
taken on multiple dates. The Trial Judge signed the judgement and kept the
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judgment in a sealed cover to be pronounced by the successor Judge. The
successor Judge later pronounced the judgment. The Punjab and Haryana
High Court held that failure to comply with Section 353 is a procedural
irregularity which is curable unless it occasions failure of justice. Relevant
portion of the judgment is reproduced hereunder:
“54. Considering the provisions of Sections 353(7) and 465,
Code of Criminal Procedure, collectively, it transpires that the
Presiding Officer was within the ambit of propriety to have
pronounced the judgment there, and then on any of the dates
after 22.5.2008. By 22.5.2008, all the proceedings hadconcluded,
including final arguments and the case had beenfixed
for passing of orders for 24.5.2008. The petitioner, while
giving one excuse after another, did not appear thereby
frustrating the process of Court and process of law, on account
of which the impugned order has been, passed.
55. Considering the provisions of Section 353, Code of
Criminal Procedure, I find that there was no bar, prohibition,
hindrance or obstacle for the trial Court to have adopted the
measure adopted by it. As held above, the judgment could have
been pronounced in the presence of the Counsel for the
petitioner. Conceivably, misconstruing the provisions of Section
353, Code of Criminal Procedure, the trial Court adopted the
procedure of signing the judgment and affixing a date thereon
and putting it in a sealed cover, to be pronounced by the
successor Presiding Officer. There being no provision
debarring the trial Court from adopting the procedure, I find no
illegality in the conduct of the trial Court. The proceedings had
concluded, the order had been prepared and was only to be
pronounced, after affixing the signatures by the Presiding
Officer.
xxx xxx xxx
73. From the Jaw, as noticed above, it also follows that the
judgment of the trial Court represents finalisation of trial of an
accused. The Code of Criminal Procedure contemplates that
the judgment should be complete in all respects at the time of
pronouncement. At that stage, all that is required of the
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Presiding Officer is that he should insert a date and append his
signatures at the time of pronouncement. On pronouncement of
the judgment, a copy is required to be supplied to the accused,
without delay. The Code of Criminal Procedure is essentially a
Code like all other procedural laws designed to further the ends
of justice and not to frustrate them by introduction of endless
technicalities. The object of the Code is to ensure for the
accused a full and fair trial in accordance with principles of
natural justice. If there be substantial compliance with the
requirements of law, a mere procedural irregularity would not
vitiate the trial unless the same results (sic) in miscarriage of
justice. In all procedural laws certain things are vital.
Disregard of a provision in respect of those procedural laws
would prove fatal to the trial and would invalidate the
conviction. However, other requirements might not be so vital.
Noncompliance with those procedures would be only an
irregularity, which would be curable unless it has resulted in
failure of justice.
74. When a Judicial Officer signs the order or judgment, it
becomes final so far as he is concerned. Pronouncement in
open Court, thereafter, remains only a formality by which the
concerns persons would get notice of the disposal of the case
and result of the trial.
75. When something requires to be done in the end of justice in
the absence of specific statutory provision, the approach of the
subordinate Courts should not be to plead helplessness on the
ground that specific provision authorising the requisite action
is lacking. Since there is no statutory prohibition that prevents
the Court from adopting a procedure in the interest of justice,
the trial Court should adopt the procedure. The Courts have to
deal with contingencies not contemplated by the framers of the
Code of Criminal Procedure. To, achieve the ends of justice,
the needful is required to be done, however, it should be
ensured that serious prejudice is not caused to the parties.
There is no legal prohibition that says that a judgment or order
in a criminal case prepared and signed by a Judicial Officer
could be pronounced only by him. When pronouncement of
judgment or order is necessary, there is no provision which
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prohibits the successor Officer pronouncing the same in Court.
Such a course does not cause prejudice to anybody, rather, it
accelerates dispensation of justice. Pronouncement of an order
by successor Presiding Officer would not in anyway prejudice
the accused in the conduct of the case. It is merely an
irregularity completely covered by the provisions of Section
465, Code of Criminal Procedure.
xxx xxx xxx
78. A combined reading of sub-Sections (7) and (8) of Section
353, Code of Criminal Procedure, indicates that noncompliance
with provisions of Section 353, Code of Criminal
Procedure, would not render valid until and unless it occasions
failure of justice. To obtain the benefit of noncompliance of
Section 353, Code of Criminal Procedure, it would be
incumbent on the accused to prove the prejudice caused to him'
by such non-compliance. This is what has been held in the law,
referred to above. The principle of law which emerges is that
mere non-compliance of Section 353. Code of Criminal
Procedure, which requires a Judge to pronounce and sign the
judgment in open Court, will not render the judgment illegal.
Procedural irregularity is curable.”
De facto Doctrine
115. In Gokaraju Rangaraju v. State of A.P., (1981) 3 SCC 132, while
considering the effect of the judgments pronounced by judges whose
appointments were quashed by the Court subsequent to the pronouncement
of judgments. The Court resorted to the de facto doctrine and held:
“17. A judge, de facto, therefore, is one who is not a mere
intruder or usurper but one who holds office, under colour of
lawful authority, though his appointment is defective and may
later be found to be defective. Whatever be the defect of his title
to the office, judgments pronounced by him and acts done by
him when he was clothed with the powers and functions of the
office, albeit unlawfully, have the same efficacy as judgments
pronounced and acts done by a judge de jure. Such is the de
facto doctrine, born of necessity and public policy to prevent
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needless confusion and endless mischief. There is yet another
rule also based on public policy. The defective appointment of a
de facto judge may be questioned directly in a proceeding to
which he be a party but it cannot be permitted to be questioned
in a litigation between two private litigants, a litigation which
is of no concern or consequence to the judge except as a judge.
Two litigants litigating their private titles cannot be permitted
to bring in issue and litigate upon the title of a judge to his
office. Otherwise so soon as a judge pronounces a judgment a
litigation may be commenced for a declaration that the
judgment is void because the judge is no judge. A judged title to
his office cannot be brought into jeopardy in that fashion.
Hence the Rule against collateral attack on validity of judicial
appointments. To question a judged appointment in an appeal
against his judgment is, of course, such a collateral attack.
18. … The twentieth amendment of the Constitution is an
instance where the de facto doctrine was applied by the
constituent body to remove any suspicion or taint of illegality
or invalidity that may be argued to have attached itself to
judgments, decrees, sentences or orders passed or made by
certain District Judges appointed before 1966, otherwise than
in accordance with the provision of Article 233 and Article 235
of the Constitution. The twentieth amendment was the
consequence of the decision of the Supreme Court in Chandra
Mohan v. State of U.P. [AIR 1966 SC 1987: (1967) 1 SCR 77:
(1967) 1 LLJ 412] that appointments of District Judges made
otherwise than in accordance with the provisions of Articles
233 and 235 were invalid….
19. In our view, the de facto doctrine furnishes an answer to the
submissions of Shri Phadke based on Section 9 of the Criminal
Procedure Code and Article 21 of the Constitution. The judges
who rejected the appeal in one case and convicted the accused
in the other case were not mere usurpers or intruders but were
persons who discharged the functions and duties of judges
under colour of lawful authority. We are concerned with the
office that the Judges purported to hold. We are not concerned
with the particular incumbents of the office. So long as the
office was validly created, it matters not that the incumbent was
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not validly appointed. A person appointed as a Sessions Judge,
Additional Sessions Judge or Assistant Sessions Judge, would
be exercising jurisdiction in the Court of Session and his
judgments and orders would be those of the Court of Session.
They would continue to be valid as the judgments and orders of
the Court of Session, notwithstanding that his appointment to
such Court might be declared invalid. On that account alone, it
can never be said that the procedure prescribed by law has not
been followed. It would be a different matter if the constitution
of the court itself is under challenge. We are not concerned
with such a situation in the instant cases. We, therefore, find no
force in any of the submissions of the learned Counsel.”
116. In Surendra Singh v. State of Uttar Pradesh, AIR 1954 SC 194, the
case was heard by a Bench of two judges and the judgment was signed by
both of them but one of the Judges expired before the pronouncement of the
judgment in the Court. The judgment was subsequently pronounced by one
of the Judges. The Supreme Court held the judgment to be valid having
been pronounced in terms of Section 353 CrPC. Relevant portion of the said
judgment is as under:
“11. An important point therefore arises. It is evident that the decision
which is so pronounced or intimated must be a declaration of the
mind of the Court as it is at the time of pronouncement. We lay no
stress on the mode of manner of delivery, as that is not of the essence,
except to say that it must be done in a judicial way in open court. But
however, it is done it must be an expression of the mind of the court at
the time of delivery. We say this because that is the first judicial act
touching the judgment which the court performs after the hearing.
Everything else up till then is done out of court and is not intended to
be the operative act which sets all the consequences which follow on
the judgment in motion. Judges may, and often do, discuss the matter
among themselves and reach a tentative conclusion. That is not their
judgment. They may write and exchange drafts. Those are not the
judgments either, however heavily and often they may have been
signed. The final operative act is that which is formally declared in
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open court with the intention of making it the operative decision of the
court. That is what constitutes the "judgment".”
Findings
117. Article 227 of the Constitution empowers the High Court with the
superintendence over all the Courts and Tribunals throughout its territory.
The power of superintendence under Article 227 includes the administrative
as well as judicial superintendence i.e. the High Court can transfer a case by
exercising its administrative power of superintendence or its judicial power
of superintendence. Articles 227 and 235 of the Constitution empowers the
High Court to have superintendence over all courts and tribunals throughout
the territories in relation to which it exercises jurisdiction and control over
subordinate Courts including matters with respect to the posting and
promotion of Judicial Officers.
118. Code of Criminal Procedure vests plenary powers in the High Court
relating to the superintendence over the subordinate Courts including the
appointment, posting, promotion and transfer of the judicial officers. Section
33 provides that the Judicial Officers shall have the powers conferred upon
them by High Court and High Court is empowered to withdraw the powers
conferred on any officer. Section 194 empowers the High Court to direct a
Sessions Judge to try a particular case. Section 407 empowers the High
Court to transfer the cases on judicial side and Section 483 empowers the
High Court to transfer the cases on the administrative side. Section 482 vests
inherent power in the High Court to make such orders as may be necessary
to give effect to any order under this Code or to prevent abuse of process of
any Court or otherwise to secure the ends of justice. Section 483 empowers
the High Court to exercise superintendence over the subordinate judiciary.
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Rule 3, Part B of Chapter 26 of Delhi High Court Rules empowers the High
Court to transfer the cases on administrative grounds. To summarize, the
High Court has both judicial as well as administrative power to regulate
administration of justice.
119. Chapter XXXV of the Code of Criminal Procedure protects the
irregularities in procedure unless it has resulted in failure of justice. Section
460 protects irregularities which do not vitiate the proceedings whereas
Section 461 lists out irregularities which vitiate proceedings. Section 462
protects judgment given by a Criminal Court in a proceeding which took
place in a wrong jurisdiction unless it has resulted in failure of justice.
Section 465 protects the irregularities in the complaint, summons, warrants,
proclamation, order, judgment or other proceedings before or during trial
unless there has been failure of justice. “Failure of Justice” means serious
prejudice caused to the accused.
120. Section 465 CrPC protects the findings, sentence or order in respect of
an irregularity and not an illegality. Illegality is a defect which strikes at the
very substance of justice such as refusal to give accused a hearing, refusal to
allow the accused to defend himself, refusal to explain the charge to the
accused and such illegalities are not protected by Section 465. The
distinction between an illegality and an irregularity is one of degree rather
than of kind.
121. There are two types of jurisdictions of a Criminal Court, namely, (i)
the jurisdiction with respect to the power of the Court to try particular kinds
of offences, and (ii) the territorial jurisdiction. While the former goes to the
root of the matter and any transgression makes the entire trial void, the latter
is not of a peremptory character and is curable under Section 462 CrPC.
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Territorial jurisdiction is a matter of convenience, keeping in mind the
administrative point of view with respect to the work of a particular Court,
the convenience of the accused who will have to meet the charge leveled
against him and the convenience of the witnesses who have to appear before
the Court.
122. The Scheme of the Code of Criminal Procedure is that where there is
no inherent lack of jurisdiction, an order or sentence awarded by a
competent Court cannot be set aside either on the ground of lack of
territorial jurisdiction or on the ground of any irregularity of procedure
unless prejudice is pleaded and proved which means failure of justice.
123. The Code of Criminal Procedure does not impose a bar on
pronouncement of orders/judgments by the Judge who recorded the entire
evidence and heard the matter or who heard the matter finally after evidence
was recorded by someone else, merely because the said Judge has been
transferred to another Court.
124. Note 2 appended to the transfer order dated 13th March, 2020 whereby
the High Court directed the judicial officers to pronounce judgment /order in
reserved matters notwithstanding their transfer, has been issued by the High
Court in exercise of the general power of superintendence over all
subordinate Courts under Articles 227 and 235 of the Constitution. Note 2
appended to the transfer order dated 13th March, 2020 is declared to be legal
and valid.
125. Notwithstanding the validity of Note 2, the impugned judgment of
conviction is protected by Section 462 of the Code of Criminal procedure.
Section 462 protects the judgment given by a Criminal Court in a proceeding
which took place in a wrong jurisdiction unless any prejudice is pleaded and
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proved. There has been no prejudice to the accused in the present case.
126. The impugned judgment is also protected by the de facto doctrine
based on necessity and public policy.
127. In Jitender‟s case (supra), Note 2 of the transfer order was not under
challenge. In that case, the Division Bench was considering the validity of a
judgment dictated and signed by the predecessor Judge but „announced‟ by
the successor Judge. The Division Bench held the pronouncement of the
judgment by the successor Judge to be illegal for being in violation of
Section 353 CrPC. While doing so, the Division Bench also commented on
the validity of Note 2 which was not in issue before the Division Bench. The
Division Bench observed that an administrative order cannot override the
statutory provisions of CrPC. However, the Division Bench did not consider
Articles 227 and 235 of the Constitution. The validity of Note 2 had to be
seen under Articles 227 and 235 of the Constitution which was not
considered. The Division Bench also did not consider Section 462 CrPC
which clearly protects a judgment/order on account of lack of territorial
jurisdiction unless it has resulted in failure of justice. The attention of the
Division Bench was not drawn to the Supreme Court judgment in State of
Karnataka v. Kuppuswamy Gownder (supra) on the scope of Section 462
where the trial takes at a wrong place. The well established de facto doctrine
was also not considered by the Division Bench. Before deciding the validity
of Note 2, the notice to the High Court was paramount. However, no notice
was issued to the High Court on the administrative side before considering
the validity of Note 2. Given an opportunity, the High Court could have
defended Note 2 being an administrative order passed in exercise of
superintendence under Articles 227 and 235 of the Constitution. We
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therefore, respectfully disagree with the findings of the Division Bench
relating to Note 2.
128. In the present case, ld. Addl. Sessions Judge concluded the hearing of
the oral arguments on 06th March, 2020 when he reserved the judgment. The
Ld. Addl. Sessions Judge pronounced the judgment in open Court on 09th
July, 2020. The pronouncement of the judgment by the ld. Addl. Sessions
Judge is in terms of Section 353 CrPC. The delay of over four months in
delivering the judgment by the ld. Addl. Sessions Judge is a mere
irregularity since it has not caused any prejudice to the accused and is,
therefore, curable.
Victimology
129. Victims are unfortunately the forgotten people in the criminal justice
delivery system. The criminal justice system tends to think more of the
rights of the offender than that of relief to the victims. The anxiety shown to
highlight the rights of the offender is not shown in enforcing law relating to
compensation for the victim, which too has a social purpose to serve.
130. The Court has to take into consideration the effect of the offence on
the victim's family even though human life cannot be restored, nor can its
loss be measured by the length of a prison sentence. No term of months or
years imposed on the offender can reconcile the family of a deceased victim
to their loss, nor will it cure their anguish but then monetary compensation
will at least provide some solace.
131. In Rattan Singh v. State of Punjab, (1979) 4 SCC 719, Krishna Iyer
J., held that it is a weakness of our jurisprudence that the victims of the
crime do not attract the attention of law. The relevant portion of the
judgment is reproduced hereunder:-
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“6. The victimisation of the family of the convict may well be a
reality and is regrettable. It is a weakness of our jurisprudence that
the victims of the crime, and the distress of the dependants of the
prisoner, do not attract the attention of the law. Indeed, victim
reparation is still the vanishing point of our criminal law! This is a
deficiency in the system which must be rectified by the legislature. We
can only draw attention to this matter. Hopefully, the welfare State
will bestow better thought and action to traffic justice in the light of
the observations we have made.”
(Emphasis supplied)
132. In Maru Ram v. Union of India, (1981) 1 SCC 107, Krishna Iyer J.,
held that while social responsibility of the criminal to restore the loss or heal
the injury is a part of the punitive exercise, the length of the prison term is
no reparation to the crippled or bereaved but is futility compounded with
cruelty. Victimology must find fulfillment, not through barbarity but by
compulsory recoupment by the wrongdoer of the damage inflicted not by
giving more pain to the offender but by lessening the loss of the forlorn.
133. In Dayal Singh v. State of Uttaranchal, (2012) 8 SCC 263, the
Supreme Court held that the criminal trial is meant for doing justice to all -
the accused, the society and the victim, then alone can law and order can be
maintained. The Courts do not merely discharge the function to ensure that
no innocent man is punished, but also that the guilty man does not escape.
134. In State of Gujarat v. Hon'ble High Court of Gujarat, (1998) 7 SCC
392, the Supreme Court suggested that the State should make a law for
setting apart a portion of wages earned by prisoners to be paid as
compensation to victims of the offence, the commission of which entailed a
sentence of imprisonment to the prisoner, either directly or through a
common fund to be created for this purpose or in another feasible mode. The
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entitlement of reparation, restitution and safeguarding of the rights of the
victim was noted. It was pointed out that if justice was not done to the victim
of the crime, criminal justice would look hollow. Reiterating that a life
which is lost or snuffed out could not be recompensed, that monetary
compensation would at least provide some solace, the Supreme Court
observed as follows:
“46. One area which is totally overlooked in the above practice is the
plight of the victims. It is a recent trend in the sentencing policy to
listen to the wailings of the victims. Rehabilitation of the prisoner
need not be by closing the eyes towards the suffering victims of the
offence. A glimpse at the field of victimology reveals two types of
victims. The first type consists of direct victims, i.e., those who are
alive and suffering on account of the harm inflicted by the prisoner
while committing the crime. The second type comprises of indirect
victims who are dependants of the direct victims of crimes who
undergo sufferings due to deprivation of their breadwinner.
xxx xxx xxx
"99. In our efforts to look after and protect the human rights of the
convict, we cannot forget the victim or his family in case of his death
or who is otherwise incapacitated to earn his livelihood because of
the criminal act of the convict. The victim is certainly entitled to
reparation, restitution and safeguard of his rights. Criminal justice
would look hollow if justice is not done to the victim of the crime. The
subject of victimology is gaining ground while we are also concerned
with the rights of the prisoners and prison reforms. A victim of crime
cannot be a ―forgotten man‖ in the criminal justice system. It is he
who has suffered the most. His family is ruined particularly in case of
death and other bodily injury. This is apart from the factors like loss
of reputation, humiliation, etc. An honour which is lost or life which is
snuffed out cannot be recompensed but then monetary compensation
will at least provide some solace.
xxx xxx xxx
101. Reparation is taken to mean the making of amends by an
offender to his victim, or to victims of crime generally, and may take
the form of compensation, the performance of some service or the
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return of stolen property (restitution), these being types of reparation
which might be described as practical or material. The term can also
be used to describe more intangible outcomes, as where an offender
makes an apology to a victim and provides some reassurance that the
offence will not be repeated, thus repairing the psychological harm
suffered by the victim as a result of the crime.”
(Emphasis Supplied)
135. Justice remains incomplete without adequate compensation to the
victim. Justice can be complete only when the victim is also compensated. In
order to give complete mental satisfaction to the victim, it is extremely
essential to provide some solace to him in the form of compensation so that
it can work as a support for the victim to start his life afresh.
Sections 357 and 357A of CrPC – Compensation to victim(s) of crime
136. Section 357 CrPC empowers the Court to award compensation to the
victim(s) of the offence in respect of the loss/injury suffered. The object of
the section is to meet the ends of justice in a better way. This section was
enacted to reassure the victims that they are not forgotten in the criminal
justice system. The amount of compensation to be awarded under Section
357 CrPC depends upon the nature of crime, extent of loss/damage suffered
and the capacity of the accused to pay for which the Court has to conduct a
summary inquiry. However, if the accused does not have the capacity to pay
the compensation or the compensation awarded against the accused is not
adequate for rehabilitation of the victim, the Court can invoke Section 357A
CrPC to recommend the case to the State/District Legal Services Authority
for award of compensation from the State funded Victim Compensation
Fund under the Delhi Victim Compensation Scheme, 2018. Section 357
CrPC is mandatory and it is the duty of all Courts to consider it in every
criminal case. The Court is required to give reasons to show such
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consideration.
137. The law contained in Section 357(3) CrPC, has, by and large, been
mostly neglected or ignored. Hence the Supreme Court in Hari Singh v.
Sukhbir Singh, (1988) 4 SCC 551, had to issue a mild reprimand while
exhorting the Courts for liberal use of this provision to meet the ends of
justice as a measure of responding appropriately to the crime, and
reconciling the victim with the offender. The relevant portion of the said
judgment is reproduced hereunder:
“10. …Sub-section (1) of Section 357 provides power to award
compensation to victims of the offence out of the sentence of fine
imposed on accused. … It is an important provision but courts have
seldom invoked it. Perhaps due to ignorance of the object of it. It
empowers the court to award compensation to victims while passing
judgment of conviction. In addition to conviction, the court may order
the accused to pay some amount by way of compensation to victim
who has suffered by the action of accused. It may be noted that this
power of courts to award compensation is not ancillary to other
sentences but it is in addition thereto. This power was intended to do
something to reassure the victim that he or she is not forgotten in the
criminal justice system. It is a measure of responding appropriately to
crime as well of reconciling the victim with the offender. It is, to some
extent, a constructive approach to crimes. It is indeed a step forward
in our criminal justice system. We, therefore, recommend to all courts
to exercise this power liberally so as to meet the ends of justice in a
better way.”
(Emphasis Supplied)
138. In Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd., (2007) 6 SCC
528, the Supreme Court explained the scope and purpose of grant of
compensation as under:
“38. The purpose of imposition of fine and/or grant of compensation
to a great extent must be considered having the relevant factors
therefore in mind. It may be compensating the person in one way or
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the other. The amount of compensation sought to be imposed, thus,
must be reasonable and not arbitrary. Before issuing a direction to
pay compensation, the capacity of the accused to pay the same must
be judged. A fortiori, an enquiry in this behalf even in a summary
way, may be necessary. Some reasons, which may not be very
elaborate, may also have to be assigned; the purpose being that
whereas the power to impose fine is limited and direction to pay
compensation can be made for one or the other factors enumerated
out of the same; but sub- section (3) of Section 357 does not impose
any such limitation and thus, power thereunder should be exercised
only in appropriate cases. Such a jurisdiction cannot be exercised at
the whims and caprice of a judge.”
(Emphasis Supplied)
139. In Manish Jalan v. State of Karnataka, (2008) 8 SCC 225, the
Supreme Court observed that the Courts have not made use of the provisions
regarding award of compensation to the victims as often as they ought to be.
The relevant portion of the said judgment is reproduced hereunder:
“12. Though a comprehensive provision enabling the court to direct
payment of compensation has been in existence all through but the
experience has shown that the provision has rarely attracted the
attention of the courts. Time and again the courts have been reminded
that the provision is aimed at serving the social purpose and should
be exercised liberally yet the results are not very heartening.”
140. In K.A. Abbas H.S.A. v. Sabu Joseph, (2010) 6 SCC 230, the
Supreme Court again noted that Section 357 CrPC is an important provision
but the Courts have seldom invoked it, perhaps due to the ignorance of the
object of it.
141. In Roy Fernandes v. State of Goa, (2012) 3 SCC 221, the Supreme
Court again observed that the Criminal Courts do not appear to have taken
significant note of Section 357 CrPC or exercised the power vested in them.
The relevant portion of the said judgment is reproduced hereunder:-
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“41. The provision for payment of compensation has been in existence
for a considerable period of time on the statute book in this country.
Even so, the criminal courts have not, it appears, taken significant
note of the said provision or exercised the power vested in them
thereunder. ...”
142. In Ankush Shivaji Gaikwad v. State of Maharashtra, (2013) 6 SCC
770, the Supreme Court again noted with despair that Section 357 CrPC has
been consistently neglected/ignored by the Courts despite series of
pronouncements to that effect. The Supreme Court cited with approval
Sarwan Singh v. State of Punjab, (1978) 4 SCC 111; Maru Ram (supra),
Hari Singh, (supra), Balraj v. State of U.P., (1994) 4 SCC 29, Baldev
Singh v. State of Punjab, (1995) 6 SCC 593 and Dilip S. Dahanukar
(supra). The Supreme Court held that Section 357 CrPC is mandatory and
has to be applied in every criminal case and the Courts are required to record
reasons for such application. The relevant portions of the judgment are
reproduced hereunder:-
“28. The only other aspect that needs to be examined is whether any
compensation be awarded against the appellant and in favour of the
bereaved family under Section 357 of the Code of Criminal
Procedure, 1973. This aspect arises very often and has been a
subject- matter of several pronouncements of this Court. The same
may require some elaboration to place in bold relief certain aspects
that need to be addressed by the courts but have despite the decisions
of this Court remained obscure and neglected by the courts at
different levels in this country.
xxx xxx xxx
48. The question then is whether the plenitude of the power vested in
the courts under Sections 357 and 357- A, notwithstanding, the courts
can simply ignore the provisions or neglect the exercise of a power
that is primarily meant to be exercised for the benefit of the victims of
crimes that are so often committed though less frequently punished by
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the courts. In other words, whether courts have a duty to advert to the
question of awarding compensation to the victim and record reasons
while granting or refusing relief to them?
xxx xxx xxx
54. Applying the tests which emerge from the above cases to Section
357, it appears to us that the provision confers a power coupled with
a duty on the courts to apply its mind to the question of awarding
compensation in every criminal case. We say so because in the
background and context in which it was introduced, the power to
award compensation was intended to reassure the victim that he or
she is not forgotten in the criminal justice system. The victim would
remain forgotten in the criminal justice system if despite the
legislature having gone so far as to enact specific provisions relating
to victim compensation, courts choose to ignore the provisions
altogether and do not even apply their mind to the question of
compensation. It follows that unless Section 357 is read to confer an
obligation on the courts to apply their mind to the question of
compensation, it would defeat the very object behind the introduction
of the provision.
xxx xxx xxx
61. Section 357 CrPC confers a duty on the court to apply its mind to
the question of compensation in every criminal case. It necessarily
follows that the court must disclose that it has applied its mind to this
question in every criminal case.
xxx xxx xxx
66. To sum up: while the award or refusal of compensation in a
particular case may be within the court's discretion, there exists a
mandatory duty on the court to apply its mind to the question in every
criminal case. Application of mind to the question is best disclosed by
recording reasons for awarding/refusing compensation. It is
axiomatic that for any exercise involving application of mind, the
Court ought to have the necessary material which it would evaluate to
arrive at a fair and reasonable conclusion. It is also beyond dispute
that the occasion to consider the question of award of compensation
would logically arise only after the court records a conviction of the
accused. Capacity of the accused to pay which constitutes an
important aspect of any order under Section 357 CrPC would involve
a certain enquiry albeit summary unless of course the facts as
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emerging in the course of the trial are so clear that the court
considers it unnecessary to do so. Such an enquiry can precede an
order on sentence to enable the court to take a view, both on the
question of sentence and compensation that it may in its wisdom
decide to award to the victim or his/her family.
67. Coming then to the case at hand, we regret to say that the trial
court and the High Court appear to have remained oblivious to the
provisions of Section 357 CrPC. The judgments under appeal betray
ignorance of the courts below about the statutory provisions and the
duty cast upon the courts. Remand at this distant point of time does
not appear to be a good option either. This may not be a happy
situation but having regard to the facts and the circumstances of the
case and the time lag since the offence was committed, we conclude
this chapter in the hope that the courts remain careful in future.”
(Emphasis Supplied)
143. In para 68 of the said judgment, the Supreme Court directed the copy
of this judgment be forwarded to the Registrars of all the High Courts for
circulation among Judges handling criminal trials and hearing appeals.
144. In Ashwani Gupta v. Government of India, 2005 (117) DLT 112, this
Court held that mere punishment of the offender cannot give much solace to
the family of the victim. Since the civil action for damages is a long
drawn/cumbersome judicial process, the compensation of Section 357 CrPC
would be useful and effective remedy.
145. There is, therefore not only statutory empowerment under Section
357(3) CrPC of the appellate court to make an appropriate order regarding
compensation but the mandatory duty of every court, at the trial stage as
well as the appellate court to consider and pass an order of fair and
reasonable compensation on relevant factors.
146. In Vikas Yadav v State of U.P, 2015 SCC OnLine Del 7129 the
Division Bench of this Court in which one of us (J.R. Midha, J.) was a
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member, laid down the principles relating to the procedure to be followed in
respect of Section 357 CrPC.
Principles in regard to methodology of assessing compensation
147. Section 357(1)(b) CrPC empowers the Court to award compensation
out of the fine to the victim for any loss or injury caused by the offence
when the compensation is, in the opinion of the Court, recoverable by such
person in Civil Court. Section 357(1)(c) empowers the Court to award
compensation out of the fine in death cases where the persons are entitled to
recover the same under Fatal Accidents Act, 1855. Section 357(3) empowers
the Court to award compensation to any person who has suffered loss or
injury by reason of the act of the accused. Section 357(5) provides that at the
time of awarding compensation in any subsequent civil suit relating to the
same matter, the Court shall take into account any sum paid or recovered as
compensation under this section. The effect of these provisions is that the
Court has to compute the compensation which the victims are entitled to
claim against the accused under civil law.
148. In cases resulting in death, the multiplier method has been accepted as
a sound method for determining the compensation to the family of the
deceased in law of torts. Reference may be made to Gobald Motor Service
Ltd. v. R.M.K. Veluswami, 1962 (1) SCR 929; Ishwar Devi Malik. v. Union
of India, ILR (1968) 1 Delhi 59; Lachman Singh v. Gurmit Kaur, I (1984)
ACC 489 (SB); Lachhman Singh v. Gurmit Kaur, AIR 1979 P&H 50; Bir
Singh v. Hashi Rashi Banerjee, AIR 1956 Cal. 555. Reference may also be
made to Lata Wadhwa v. State of Bihar, (2001) 8 SCC 197; Municipal
Corporation of Delhi v. Association of Victims of Uphaar Tragedy, AIR
2012 SC 100; Jaipur Golden Gas Victims Association v. Union of India,
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(2009) 164 DLT 346; Nagrik Sangarsh Samiti v. Union of India, 2012 ACJ
1548 ; Ram Kishore v. M.C.D, (2007) 97 DRJ 445; and Ashok Sharma v.
Union of India, 2009 ACJ 1063. The multiplier method is statutorily
recognized for computation of compensation in death cases under Section
163A of the Motor Vehicles Act, 1988.
149. The multiplier method is based on the pecuniary loss caused to the
dependants by the death of the victim of the road accident. The dependency
of the dependants is determined by taking the annual earning of the deceased
at the time of the accident. Thereafter, effect is given to the future prospects
of the deceased. After the income of the deceased is established, the
deduction is made towards the personal expenses of the deceased which he
would have spent on himself. If the deceased was unmarried, normally 50%
of the income is deducted towards his personal expenses. If the deceased
was married and leaves behind two to three dependents, 1/3rd deduction is
made; if the deceased has left behind four to six family members, deduction
of 1/4th of his income is made and where the number of dependent family
members exceeds six, the deduction of 1/5th of the income is made. The
remaining amount of income after deduction of personal expenses is taken to
be the loss of dependency to the family members which is multiplied by 12
to determine the annual loss of dependency. The annual loss of dependency
is multiplied by the multiplier according to the age of the deceased or
victim(s) whichever is higher. A table of multipliers is given in Schedule-II
of the Motor Vehicle Act, 1988 but there was some error in the said table
which has been corrected by the Supreme Court in Sarla Verma v. DTC,
2009 ACJ 1298. For example, in a case where the deceased was aged 36
years working as a telephone operator earning Rs.7,500/- per month dies in a
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road accident leaving behind his widow and two children; first step would be
to add 50% of the income as future prospects and total income for
computation of compensation would be taken as Rs.11,250/-. Next step is to
deduct 1/3rd towards the personal expenses which the deceased would have
spent on himself and the loss of dependency of his family would be
Rs.7,500/- per month. The annual loss of dependency of Rs.90,000/- is
multiplied by the multiplier of 15 to compute the total loss of dependency as
Rs.13,50,000/-. Compensation has to be added towards loss of love and
affection, loss of consortium, loss to estate, medical expenses, emotional
harm/trauma, mental and physical shock etc. and funeral expenses.
Interim compensation
150. In Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490,
the Supreme Court held that the Court has the right to award interim
compensation and the jurisdiction to pay interim compensation shall be
treated to be part of the overall jurisdiction of the Courts trying the offence.
The relevant portion of the judgment is reproduced hereunder:
“18. This decision recognises the right of the victim to compensation
by providing that it shall be awarded by the court on conviction of the
offender subject to the finalisation of the Scheme by the Central
Government. If the court trying an offence of rape has jurisdiction to
award the compensation at the final stage, there is no reason to deny
to the court the right to award interim compensation which should
also be provided in the Scheme. On the basis of principles set out in
the aforesaid decision in Delhi Domestic Working Women's Forum
[(1995) 1 SCC 14 : 1995 SCC (Cri) 7], the jurisdiction to pay interim
compensation shall be treated to be part of the overall jurisdiction of
the courts trying the offences of rape which, as pointed out above is
an offence against basic human rights as also the Fundamental Right
of Personal Liberty and Life.
19. Apart from the above, this Court has the inherent jurisdiction to
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pass any order it considers fit and proper in the interest of justice or
to do complete justice between the parties.”
(Emphasis Supplied)
Conclusion
151. Article 227 of the Constitution empowers the High Court with the
superintendence over all Courts and Tribunals throughout its territory. The
power of superintendence under Article 227 includes the administrative as
well as judicial superintendence i.e. the High Court can transfer a case by
exercising its administrative power of superintendence or its judicial power
of superintendence. Article 235 of the Constitution empowers the High
Court with respect to the posting and promotion of Judicial Officers.
152. Code of Criminal Procedure vests in the High Court plenary powers
relating to the superintendence over the subordinate Courts including the
appointment, posting, promotion and transfer of the judicial officers. Section
194 empowers the High Court to direct a Sessions Judge to try particular
cases. Section 407 empowers the High Court to transfer the cases on judicial
side and Section 483 empowers the High Court to transfer the cases on the
administrative side. Section 482 vests inherent power in the High Court to
make such orders as may be necessary to give effect to any order under this
Code or to prevent abuse of process of any Court or otherwise to secure the
ends of justice. Section 483 empowers the High Court to exercise
superintendence over the subordinate judiciary. Rule 3 of Part B of Chapter
26 of Delhi High Court Rules empowers the High Court to transfer the cases
on administrative grounds. To summarize, the High Court has both judicial
as well as administrative power to regulate administration of justice.
153. Note 2 appended to the transfer order dated 13th March, 2020 issued
by the High Court in exercising the aforesaid powers under the Constitution
and the Code of Criminal Procedure is declared to be legal and valid. The contrary finding of the Division Bench relating to Note 2 in Jitender‟s case (supra) is overruled.
154. The ld. Addl. Sessions Judge was duly empowered to pronounce the
judgment by virtue of Note 2 appended to the transfer order dated 13th
March, 2020. The pronouncement of the judgment by ld. Addl. Sessions
Judge is in terms of Section 353 CrPC. The delay in pronouncing the
judgment is a mere irregularity and is hereby condoned.
155. Notwithstanding validity of Note 2, the impugned judgment is also
protected by Sections 462 and 465 CrPC and the de facto doctrine.
Victimology
156. Victims are unfortunately the forgotten people in the criminal justice
delivery system. Victims are the worst sufferers. Victims‟ family is ruined
particularly in cases of death and grievous bodily injuries. This is apart from
the factors like loss of reputation, humiliation, etc. The Court has to take into
consideration the effect of the offence on the victim's family even though
human life cannot be restored but then monetary compensation will at least
provide some solace.
157. The criminal justice system is meant for doing justice to all - the
accused, the society and the victim.
158. Justice remains incomplete without adequate compensation to the
victim. Justice can be complete only when the victim is also compensated.
Sections 357 & 357A of CrPC
159. Section 357 CrPC empowers the Court to award compensation to
victims who have suffered by the action of the accused.
160. The object of the Section 357(3) CrPC is to provide compensation to
the victims who have suffered loss or injury by reason of the act of the
accused. Mere punishment of the offender cannot give much solace to the
family of the victim – civil action for damages is a long drawn and a
cumbersome judicial process. Monetary compensation for redressal by the
Court finding the infringement of the indefeasible right to life of the citizen
is, therefore, useful and at time perhaps the only effective remedy to apply
balm to the wounds of the family members of the deceased victim, who may
have been the bread earner of the family.
161. Section 357 CrPC is intended to reassure the victim that he/she is not
forgotten in the criminal justice system.
162. Section 357 CrPC is a constructive approach to crimes. It is indeed a
step forward in our criminal justice system.
163. The power under Section 357 CrPC is not ancillary to other sentences
but in addition thereto.
164. The power under Section 357 CrPC is to be exercised liberally to meet
the ends of justice in a better way.
165. Section 357 CrPC confers a duty on the Court to apply its mind on the
question of compensation in every criminal case.
166. The word „may‟ in Section 357(3) CrPC means „shall‟ and therefore,
Section 357 CrPC is mandatory.
167. The Supreme Court in Ankush Shivaji Gaikwad (supra) has given directions that the Courts shall consider Section 357 CrPC in every criminal case and if the Court fails to make an order of compensation, it must furnish reasons.
Quantum of compensation
168. The amount of compensation is to be determined by the Court
depending upon gravity of offence, severity of mental and physical
harm/injury suffered by the victim, damage/losses suffered by the victims and the capacity of the accused to pay. While determining the paying capacity of the accused, the Court has to take into consideration the present occupation and income of the accused. The accused can also be directed to pay monthly compensation out of his income.
Financial capacity of the accused
169. Before awarding compensation, the Trial Court is required to ascertain the financial capacity of the accused. This Court has formulated the format of an affidavit to be filed by the accused after his conviction to disclose his assets and income which is Annexure-A hereto.
Victim Impact Report
170. This Court has formulated the format of Victim Impact Report (VIR)
to be filed by DSLSA in every criminal case after conviction. Victim Impact
Report (VIR) shall disclose the impact of the crime on the victim. The
format of the Victim Impact Report in respect of criminal cases, other than
motor accident cases, is Annexure B-1. The format of Victim Impact Report
in respect of motor accident cases is Annexure B-2.
Summary Inquiry
171. A summary inquiry is necessary to ascertain the impact of crime on
the victim, the expenses incurred on prosecution as well as the paying
capacity of the accused.
172. This Court is of the view that the summary inquiry be conducted by
Delhi State Legal Services Authority (DSLSA) considering that DSLSA is
conducting similar inquiry under the Delhi Victim Compensation Scheme,
2018 and is well conversant with the manner of conducting the inquiry.
173. After the conviction of the accused, the Trial Court shall direct the accused to file the affidavit of his assets and income in the format of Annexure-A within 10 days.
174. After the conviction of the accused, the Court shall also direct the State to disclose the expenses incurred on prosecution on affidavit along with the supporting documents within 30 days.
175. Upon receipt of the affidavit of the accused, the Trial Court shall immediately send the copy of the judgment and the affidavit of the accused in the format of Annexure-A and the documents filed with the affidavit to DSLSA.
176. Upon receipt of the judgment and the affidavit of the accused, DSLSA shall conduct a summary inquiry to compute the loss suffered by the victims and the paying capacity of the accused and shall submit the Victim Impact Report containing their recommendations to the Court within 30 days. Delhi State Legal Services Authority shall seek the necessary assistance in
conducting the inquiry from SDM concerned, SHO concerned and/or
prosecution who shall provide the necessary assistance upon being
requested.
177. The Trial Court shall thereafter consider the Victim Impact Report of the DSLSA with respect to the impact of crime on the victims, paying capacity of the accused and expenditure incurred on the prosecution; and after hearing the parties including the victims of crime, the Court shall award the compensation to the victim(s) and cost of prosecution to the State, if the accused has the capacity to pay the same. The Court shall direct the accused to deposit the compensation with DSLSA whereupon DSLSA shall disburse
the amount to the victims according to their Scheme.
178. If the accused does not have the capacity to pay the compensation or the compensation awarded against the accused is not adequate for rehabilitation of the victim, the Court shall invoke Section 357A CrPC to recommend the case to the Delhi State Legal Services Authority for award of compensation from the Victim Compensation Fund under the Delhi Victims Compensation Scheme, 2018.
179. In pending appeals/revisions against the order on sentence in which Section 357 CrPC has not been complied with, the Public Prosecutor shall file an application seeking a direction from the Court for directing the accused to file his affidavit of assets and income in the format of Annexure- A and directions to DSLSA to conduct a summary inquiry to ascertain theloss/damage suffered by the victim(s) and the paying capacity of the accused in the format of Annexures-B/B-1 in terms of Sections 357(4) CrPC in accordance with procedure mentioned hereinabove.
180. All the Courts below shall send a monthly statement to the Registrar General of this Court containing the list of cases decided each month. The
list shall contain the name and particulars of the case; date of conviction;
whether affidavit of assets and income has been filed by the accused;
whether summary inquiry has been conducted to assess the compensation
and determine the paying capacity of the accused; and compensation amount
awarded. The monthly statement shall also contain one page summary
format of the above information. The first monthly report for the period 01st
January, 2021 to 31st January, 2021 be submitted by 15th February, 2021 and
thereafter, by 15th of each English calendar month. The Registrar General of
this Court shall place these reports before ACR Committee of the Judicial
Officers.
181. Sh. Kanwal Jeet Arora, Member Secretary, Delhi State Legal Services
Authority submits that additional manpower would be required to conduct
the summary inquiry in every criminal case before sentencing.
182. Delhi State Legal Services Authority is directed to prepare a proposal
for additional manpower after examining number of summary inquiries that
are likely to be conducted by DSLSA every month and the proposal be sent
to Government of NCT of Delhi within one week whereupon Government of
NCT of Delhi shall complete all necessary formalities within three weeks to
ensure that the directions of this Court relating to the summary inquiry by
DSLSA in every criminal case are implemented w.e.f. 01st January, 2021.
183. Mr. Rahul Mehra, ld. Standing Counsel shall take up the matter with
Government of NCT of Delhi to ensure the compliance of this direction
within the stipulated time.
184. List for reporting compliance and further directions on 25th February,
2021.
185. This Court appreciates the valuable and effective assistance rendered
by Mr. Kanhaiya Singhal, Advocate assisted by Ms. Pratiksha Tripathi,
Advocate; Mr. Rahul Mehra, ld. Standing Counsel assisted by Ms. Aashaa
Tiwari, ld. APP and Mr. Chaitanya Gosain, Advocate; Mr. Rajshekhar Rao,
Advocate assisted by Ms. Aanchal Tikmani and Mr. Shreeyash Lalit,
Advocates for Delhi High Court; Mr. Vikas Pahwa, ld. Amicus Curiae
assisted by Mr. Sumer Singh Boparai, Mr. Varun Bhati and Ms. Raavi
Sharma, Advocates; Prof. G.S. Bajpai, Professor of Criminology & Criminal
Justice, National Law University, Delhi as amicus curiae assisted by Mr.
Neeraj Tiwari, Assistant Professor of Law, Mr. Ankit Kaushik, Research
Associate, Mr. G. Arudhra Rao and Ms. Shelal Lodhi Rajput; Mr. Kanwal
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Jeet Arora, Member Secretary, DSLSA; Mr. Akshay Chowdhary and Ms.
Anjali Agrawal, Law Researchers attached to this Court.
186. This Court is of the view that the mandatory summary inquiry by
DSLSA into the loss/damage suffered by the victim and the paying capacity
of the accused after conviction; and the affidavit of accused in format of
Annexure-A; and Victim Impact Report by DSLSA in the format of
Annexure-B and Annexure B-1 should be incorporated in the Statue/Rules.
Let this suggestion be considered by the Central Government. Copy of this
judgment along with Annexure-A, Annexure-B and Annexure B-1 be sent
to Mr. Chetan Sharma, ld. ASG for taking up the matter with Ministry of
Law & Justice. Mr. Chetan Sharma, ld. ASG is requested to assist this Court
on 25th February, 2021.
187. Copy of this judgment along with Annexure-A, Annexure-B and
Annexure B-1 be sent to the Registrar General of this Court who shall send
the same to the District Judge (HQs.) for being circulated to all concerned
Courts.
188. Copy of this judgment along with affidavit of accused in the format of
Annexure-A and Victim Impact Report in the format of Annexure-B and
Annexure B-1 be uploaded in the District Court Website (in .pdf format) to
enable the lawyers/litigants to download the same.
189. Copy of this judgment along with Annexure-A, Annexure-B and
Annexure B-1 be sent to Delhi Judicial Academy to sensitize the Judges
about the directions given by this Court.
190. National Judicial Academy is reporting the best practices of the High
Courts on their website (www.nja.nic.in) under the head of Practices &
Initiatives of various High Courts. Copy of this judgment along with
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Annexure-A, Annexure-B and Annexure B-1 be sent to National Judicial
Academy.
191. Copy of this judgment be also sent to Delhi State Legal Services
Authority. Copy of this judgment be also sent to the Director of Prosecution
for circulation to all Prosecutors.
J.R. MIDHA, J.
RAJNISH BHATNAGAR, J.
BRIJESH SETHI, J.
NOVEMBER 27, 2020
ak/ds/dk
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ANNEXURE-A
Format of the AFFIDAVIT of the Convict
(To be filed by the Convict within ten days of the conviction)
AFFIDAVIT
I _______________________, son of/daughter of/wife of
___________________, aged about ____ years, resident of
___________________________, do hereby solemnly declare and affirm as
under:
S. No. Description Particulars
1. FIR No., date and under Section(s)
2. Name of Police Station
3. Date, time and place of offence
4. Date of conviction
5. Name of the convict
6. Father‟s /Spouse‟s name
7. Age
8. Gender
9. Marital status
10. Addresses: Permanent
Present
11. Contact information: Mobile
Email ID
12. Educational and professional
qualifications
13. Occupation
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14. Monthly income from all sources
including employment, business,
vocation, interest, investment,
income from properties, assets etc.
15. Whether you are assessed to Income
Tax? If yes, file the copy of Income
Tax Returns for the last three years.
16. Complete details of the immediate
family members (Name, age,
relation, occupation, income and
their address)
17. If the deponent is a salaried person:
(i) Designation
(ii) Name and address of the
employer
(iii) Monthly Income including the
salary, D.A., commissions/
incentives, bonus, perks etc.
18. If the deponent is self-employed:
(i) Nature of business/profession
(ii) Whether the business/profession
is carried on as an individual,
sole-proprietorship concern,
partnership concern, company,
HUF, joint family business or in
any other form.
(iii) Net monthly income
19. Income from other sources:
Agricultural Income; Rent; Interest
on bank deposits, FDRs, investments
including deposits, NSC, IVP, KVP,
Post Office schemes, PPF, loans;
Dividends; Mutual Funds; Annuities
etc.
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20. Income earned by the convict during
incarceration
21. Any other income not covered above
22. Total Income Monthly
Annual
23. Immovable properties
Particulars of the immovable
properties including joint properties,
built up properties, lease hold
properties, land/ agricultural land
and investment in real estate such as
booking of plots, flats etc. in your
name or in joint names
24. Financial Assets
Particulars of all bank accounts
including Current and Savings,
Demat accounts in your name or
joint names held in the last three
years
Account
Number
Name of
Bank
Current
Balance
25. Investments
FDRs, NSC, IVP, KVP, Post Office
schemes, PPF etc.; Deposits with
Government and Non-Government
entities; Stocks, shares, debentures,
bonds, units and mutual funds, etc.
Particulars Current Value
26. Movable Assets
Motor Vehicles, live stock, plant and
equipment etc.
Particulars Cost of acquisition
27. List of other assets not itemized
above
28. Value of total assets
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DOCUMENTS TO BE FILED WITH THE AFFIDAVIT
S. No. Particulars Please Tick
Attached NA To follow
29. Aadhaar Card
30. Voter ID Card
31. PAN Card
32. Statement of Account of all bank accounts
including current, savings, DEMAT for the
last three years
33. Income Tax Return(s) of the deponent along
with the balance sheets, statement of income
and Annexures for last three years
34. Salary Slip in case of salaried persons
Declaration:
1. I solemnly declare and affirm that I have made true, accurate and
complete disclosure of my income from all sources and assets. I further
declare and affirm that I have no income and assets other than set out in this
affidavit.
2. I undertake to inform this Court immediately upon any material
change in my income and assets or any other information disclosed in this
affidavit.
3. I hereby declare that the contents of this affidavit have been duly
explained to me and have been understood by me.
4. The copies of the documents filed with the affidavit are the true copies
of the originals and I have self attested the copies after comparing them with
their originals.
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5. I understand that any false statement made in this affidavit may
constitute an offence under Section 199 read with Sections 191 and 193 of
the Indian Penal Code, 1860 punishable with imprisonment up to seven
years and fine, and Section 209 of Indian Penal Code, 1860 punishable with
imprisonment up to two years and fine. I have read and understood Sections
191, 193, 199 and 209 of the Indian Penal Code, 1860.
DEPONENT
Verification:
Verified at ____________on this ____ day of ___________ that the contents
of the above affidavit relating to my income and assets are true to my
knowledge, no part of it is false and nothing material has been concealed
therefrom. I further verify that the copies of the documents filed along with
the affidavit are true copies of the originals.
DEPONENT
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ANNEXURE-B
Format of VICTIM IMPACT REPORT
(To be filed by DSLSA in all criminal cases, other than motor accident
cases, within 30 days of conviction and to be considered by the Court at
the time of sentencing)
S.
No.
Description Particulars
1. FIR No., date and under
Section(s)
2. Name of Police Station
3. Date, time and place of offence
4. Nature of injury/loss suffered by
the victim(s)
(i) Physical harm
(a) Simple injuries
(b) Grievous injuries
(c) Death
(ii) Emotional harm
(iii) Damage/loss of the property
(iv) Any other loss/injury
5. Brief description of offence(s) in
which the accused has been
convicted
6. Name of the victim
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7. Father‟s /Spouse‟s name
8. Age
9. Gender
10. Marital status
11. Addresses:
Permanent
Present
12. Contact information: Mobile
Email ID
I. Death Case
S. No. Description Particulars
13. Name of the deceased
14. Father‟s/Spouse‟s name
15. Age of the deceased
16. Gender of the deceased
17. Marital status of the deceased
18. Occupation of the deceased
19. Income of the deceased
20. Name, age and relationship of legal representatives of deceased:
Name Age Gender Relation
(i)
(ii)
(iii)
(iv)
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(v)
(vi)
21. Details of losses suffered
P ecuniary Losses:
(i) Income of the deceased (A)
(ii) Add-Future Prospects (B)
(iii) Less-Personal expenses of the deceased
(C)
(iv) Monthly loss of dependency
[(A+B) – C = D]
(v) Annual loss of dependency (D x 12)
(vi) Multiplier (E)
(vii) Total loss of dependency (D x 12 x E =
F)
(viii) Medical Expenses
(ix) Funeral Expenses
(x) Any other pecuniary loss/damage
Non-Pecuniary Losses:
(xi) Loss of consortium
(xii) Loss of love and affection
(xiii) Loss of estate
(xiv) Emotional harm/trauma, mental and
physical shock etc.
(xv) Post-traumatic stress disorder (anxiety,
depression, hostility, insomnia, selfdestructive
behaviour, nightmares,
agitation, social isolation, etc.) panic
disorder or phobia(a) which got triggered
by the incident/death of the deceased
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victim.
(xvi) Any other non pecuniary loss/damage
Total loss suffered
II. Injury Case
S. No. Description Particulars
22. Name of the injured
23. Father‟s /Spouse‟s name
24. Age of the injured
25. Gender of the injured
26. Marital status of the injured
27. Occupation of the injured
28. Income of the injured
29. Nature and description of
injury
30. Medical treatment taken by
the injured
31.
Name of hospital and period
of hospitalization
32. Details of surgeries, if
undergone
33. Whether any permanent
disability? If yes, give details
34. Whether the injured got
reimbursement of medical
expenses
35. Details of family/dependents of the injured:
Name Age Gender Relation
(i)
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(ii)
(iii)
(iv)
(v)
(vi)
36. Details of losses suffered
Pecuniary Losses:
(i) Expenditure incurred on treatment,
conveyance, special diet, attendant
etc.
(ii) If treatment is still continuing, give
the estimate of expenditure likely
to be incurred on future treatment
(iii) Loss of income
(iv) Any other loss which may require
any special treatment or aid to the
injured for the rest of his life
(v) Percentage of disability assessed
and nature of disability as
permanent or temporary
(vi) Percentage of loss of earning
capacity in relation to disability
(vii) Loss of future Income -
(Income x % Earning Capacity x
Multiplier)
(viii) Any other pecuniary loss or
damage
Non-Pecuniary Losses:
(i) Pain and suffering
(ii) Loss of amenities of life,
inconvenience, hardships,
disappointment, frustration, mental
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stress, dejectment and unhappiness
in future life etc.
(iii) Post-traumatic stress disorder
(anxiety, depression, hostility,
insomnia, self-destructive
behaviour, nightmares, agitation,
social isolation, etc.) panic disorder
or phobia(a) which got triggered
by the incident.
(iv) Emotional harm/trauma, mental
and physical shock etc.
(v) Disfiguration
(vi) Loss of marriage prospects
(vii) Loss of Reputation
(viii) Any other non-pecuniary
loss/damage
Total loss suffered
III. Damage/Loss to the property
S. No. Description Particulars
37. Description of the property
damaged/lost
38. The value of loss suffered
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IV. Paying capacity of the accused
The accused has submitted the affidavit of his assets and income in the
format Annexure-A. The particulars given by the accused in his affidavit
have been verified through SDM/Police/Prosecution and after considering
the same, paying capacity of the accused is assessed as under:
...................................................................................................................
...................................................................................................................
...................................................................................................................
...................................................................................................................
V. Recommendations of Delhi State Legal Services Authority
After taking into consideration the gravity of the offense, severity of
mental/physical harm/injuries suffered by the victim(s); losses suffered by
the victim(s) and the paying capacity of the accused. The recommendations
of the Committee are as under:-
...................................................................................................................
...................................................................................................................
...................................................................................................................
...................................................................................................................
Delhi Member Secretary
Dated: Delhi State Legal Services Authority
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Documents considered and attached to the report
In death cases:
1. Death certificate
2. Proof of age of the deceased which may be in form of a) Birth
Certificate; b) School Certificate; c) Certificate from Gram Panchayat
(in case of illiterate); d) Aadhar Card
3. Proof of Occupation and Income of the deceased which may be in
form of a) Pay slip/salary certificate (salaried employee); b) Bank
statements of the last six months; c) Income tax Return; Balance Sheet
4. Proof of the legal representatives of the deceased (Names, Age,
Address, Phone Number & Relationship)
5. Treatment record, medical bills and other expenditure
6. Bank Account no. of the legal representatives of the deceased with
name and address of the bank
7. Any other document found relevant
In injury cases:
8. Multi angle photographs of the injured
9. Proof of age of the deceased which may be in form of a) Birth
Certificate; b) School Certificate; c) Certificate from Gram Panchayat
(in case of illiterate); d) Aadhar Card
10. Proof of Occupation and Income of the deceased which may be in
form of a) Pay slip/salary certificate (salaried employee); b) Bank
statements of the last six months; c) Income tax Return; Balance Sheet
11. Treatment record, medical bills and other expenditure.
12. Disability certificate (if available)
13. Proof of absence from work where loss of income on account of
injury is being claimed, which may be in the form of a) Certificate
from the employer; b) Extracts from the attendance register.
14. Proof of reimbursement of medical expenses by employer or under a
Mediclaim policy, if taken
15. Any other document found relevant
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CRL.A. 352/2020 & CRL.A. 353/2020 Page 122 of 133
ANNEXURE-B1
Format of VICTIM IMPACT REPORT
(To be filed by DSLSA in all criminal cases relating to motor accidents
within 30 days of conviction and to be considered by the Court at the time
of sentencing)
S.
No.
Description Particulars
1. FIR No., date and under
Section(s)
2. Name of Police Station
3. Date, time and place of offence
4. Nature of injury/loss suffered by
the victim(s)
(i) Physical harm
(a) Simple injuries
(b) Grievous injuries
(c) Death
(ii) Emotional harm
(iii) Damage/loss of the property
(iv) Any other loss/injury
5. Brief description of offence(s) in
which the accused has been
convicted
6. Name of the victim
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7. Father‟s /Spouse‟s name
8. Age
9. Gender
10. Marital status
11. Addresses:
Permanent
Present
12. Contact information: Mobile
Email ID
I. Death Case
S. No. Description Particulars
13. Name of the deceased
14. Father‟s/Spouse‟s name
15. Age of the deceased
16. Gender of the deceased
17. Marital status of the deceased
18. Occupation of the deceased
19. Income of the deceased
20. Name, age and relationship of legal representatives of deceased:
Name Age Gender Relation
(i)
(ii)
(iii)
(iv)
(v)
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(vi)
21. Details of losses suffered
P ecuniary Losses:
(i) Income of the deceased (A)
(ii) Add-Future Prospects (B)
(iii) Less-Personal expenses of the deceased
(C)
(iv) Monthly loss of dependency
[(A+B) – C = D]
(v) Annual loss of dependency (D x 12)
(vi) Multiplier (E)
(vii) Total loss of dependency (D x 12 x E =
F)
(viii) Medical Expenses
(ix) Funeral Expenses
(x) Any other pecuniary loss/damage
Non-Pecuniary Losses:
(xi) Loss of consortium
(xii) Loss of love and affection
(xiii) Loss of estate
(xiv) Emotional harm/trauma, mental and
physical shock etc.
(xv) Post-traumatic stress disorder (anxiety,
depression, hostility, insomnia, selfdestructive
behaviour, nightmares,
agitation, social isolation, etc.) panic
disorder or phobia(a) which got triggered
by the incident/death of the deceased
victim.
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(xvi) Any other non-pecuniary loss/damage
Total loss suffered
II. Injury Case
S. No. Description Particulars
22. Name of the injured
23. Father‟s /Spouse‟s name
24. Age of the injured
25. Gender of the injured
26. Marital status of the injured
27. Occupation of the injured
28. Income of the injured
29. Nature and description of
injury
30. Medical treatment taken by
the injured
31.
Name of hospital and period
of hospitalization
32. Details of surgeries, if
undergone
33. Whether any permanent
disability? If yes, give details
34. Whether the injured got
reimbursement of medical
expenses
35. Details of family/dependents of the injured:
Name Age Gender Relation
(i)
(ii)
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(iii)
(iv)
(v)
(vi)
36. Details of losses suffered
Pecuniary Losses:
(i) Expenditure incurred on treatment,
conveyance, special diet, attendant
etc.
(ii) If treatment is still continuing, give
the estimate of expenditure likely
to be incurred on future treatment
(iii) Loss of income
(iv) Any other loss which may require
any special treatment or aid to the
injured for the rest of his life
(v) Percentage of disability assessed
and nature of disability as
permanent or temporary
(vi) Percentage of loss of earning
capacity in relation to disability
(vii) Loss of future Income -
(Income x % Earning Capacity x
Multiplier)
(viii) Any other pecuniary loss/damage
Non-Pecuniary Losses:
(i) Pain and suffering
(ii) Loss of amenities of life,
inconvenience, hardships,
disappointment, frustration, mental
stress, dejectment and unhappiness
2020:DHC:3415-DB
CRL.A. 352/2020 & CRL.A. 353/2020 Page 127 of 133
in future life etc.
(iii) Post-traumatic stress disorder
(anxiety, depression, hostility,
insomnia, self-destructive
behaviour, nightmares, agitation,
social isolation, etc.) panic disorder
or phobia(a) which got triggered
by the incident.
(iv) Emotional harm/trauma, mental
and physical shock etc.
(v) Disfiguration
(vi) Loss of marriage prospects
(vii) Loss of Reputation
(viii) Any other non-pecuniary
loss/damage
Total loss suffered
III. Damage/Loss to the property
S. No. Description Particulars
37. Description of the property
damaged/lost
38. The value of loss suffered
IV. Conduct of the accused
S. No. Description Particulars
39. Whether the accused fled from the
Spot
If so, when he/ she appeared before
Police/ Court or arrested?
40. Whether the Accused reported the
accident to the Police/ family of the
victim
2020:DHC:3415-DB
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41. (i) Whether the Accused provided
any assistance to the victim?
(ii) Whether the Accused took the
victim to the hospital?
(iii) Whether the Accused visited
the victim at the hospital?
42. Whether the Accused remained at
the spot till police arrived
43. Whether the Accused cooperated in
the investigation
44. Whether the Accused removed his/
her vehicle from the spot before
police arrived
45. Whether the Accused paid
compensation/ medical expenses to
victim/ his family
46. Whether the Accused has previous
convictions
47. Whether the Accused is/ was a
close relative or friend of the victim
48. Age of the Accused
49. Gender of the Accused
50. Whether accused suffered injuries
during the accident
51. Whether the Accused discharged
the duties under Sections 132 and
134 of the MV Act, 1988?
If no, whether the Accused has
been prosecuted under Section 187
of MV Act
52. Whether the Driver has been
previously involved in a motor
accident case
If Yes, provide following details:
FIR Number and Police Station
53. In case the driver fled from the
spot, did the owner comply with the
provisions of Section 133 of MV
Act
54. Any other information regarding
the conduct of the Accused
2020:DHC:3415-DB
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55. Apparent contributing circumstances
(i) Driving without valid driving
license
(ii) Driving while disqualified
(iii) Learner driving without supervision
(iv) Vehicle not insured
(v) Driving a stolen vehicle
(vi) Vehicle taken out without the
consent of the owner
(vii) Driving dangerously or at excessive
speed
(viii) Dangerously loaded vehicle/
Overloaded
(ix) Parking on the wrong side of the
road
(x) Improper parking/ Parking on
wrong side of road
(xi) Non-observance of traffic rules
(xii) Poorly maintained vehicle
(xiii) Fake/forged driving license
(xiv) History of convulsions/ seizures
(xv) Fatigued/ Sleepy
(xvi) Guilty of violation of traffic rules in
the past
(xvii) Previous convictions
(xviii) Suffering from medical condition
that impairs driving
(xix) Using mobile phone while driving
(Handheld)
(xx) Using mobile phone while driving
(Handsfree)
(xxi) More than one injured/ dead
(xxii) Under the influence of alcohol or
drugs
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56. Aggressive Driving
(i) Jumping Red Light
(ii) Abrupt braking
(iii) Neglect to keep to the left of road
(iv) Criss Cross Driving
(v) Driving on the wrong side
(vi) Driving close to vehicle in front
(vii) Inappropriate attempts to overtake
(viii) Cutting in after overtaking
(ix) Exceeding Speed Limit
(x) Racing/ Competitive Driving
(xi) Disregarding any warnings
(xii) Overtaking where prohibited
(xiii) Driving with loud music
(xiv) Improper reversing
(xv) Improper passing
(xvi) Improper turning
(xvii) Turning without indication
(xviii) Driving in no-entry zone
(xix) Not slowing at junctions/ crossings
(xx) Turning with indication
(xxi) Not respecting stop sign
(xxii) Not respecting right of way to
pedestrians
2020:DHC:3415-DB
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57. Irresponsible Behaviour
(i) Failing to stop after accident
(ii) Ran away from the spot after
leaving the vehicle
(iii) Destruction or attempt to destroy
the evidence
(iv) Falsely claiming that one of the
victims was responsible for the
accident
(v) Trying to throw the victim off the
bonnet of the vehicle by swerving
in order to escape
(vi) Causing death/injury in the course
of dangerous driving post
commission of crime or chased by
police in an attempt to avoid
detection or apprehension
(vii) Offence committed while the
offender was on bail
(viii) Took any false defence
(ix) Misled the investigation
(x) Post-accident road rage behavior
2020:DHC:3415-DB
CRL.A. 352/2020 & CRL.A. 353/2020 Page 132 of 133
IV. Paying capacity of the accused
The accused has submitted the affidavit of his assets and income in the
format Annexure-A. The particulars given by the accused in his affidavit
have been verified through SDM/Police/Prosecution and after considering
the same, paying capacity of the accused is assessed as under:
...................................................................................................................
...................................................................................................................
...................................................................................................................
...................................................................................................................
V. Recommendations of Delhi State Legal Services Authority
After taking into consideration the gravity of the offense, severity of
mental/physical harm/injuries suffered by the victim(s); losses suffered by
the victim(s) and the paying capacity of the accused. The recommendations
of the Committee are as under:-
...................................................................................................................
...................................................................................................................
...................................................................................................................
...................................................................................................................
Delhi Member Secretary
Dated: Delhi State Legal Services Authority
2020:DHC:3415-DB
CRL.A. 352/2020 & CRL.A. 353/2020 Page 133 of 133
Documents considered and attached to the report
In death cases:
1. Death certificate
2. Proof of age of the deceased which may be in form of a) Birth
Certificate; b) School Certificate; c) Certificate from Gram Panchayat
(in case of illiterate); d) Aadhar Card
3. Proof of Occupation and Income of the deceased which may be in
form of a) Pay slip/salary certificate (salaried employee); b) Bank
statements of the last six months; c) Income tax Return; Balance Sheet
4. Proof of the legal representatives of the deceased (Names, Age,
Address, Phone Number & Relationship)
5. Treatment record, medical bills and other expenditure
6. Bank Account no. of the legal representatives of the deceased with
name and address of the bank
7. Any other document found relevant
In injury cases:
8. Multi angle photographs of the injured
9. Proof of age of the deceased which may be in form of a) Birth
Certificate; b) School Certificate; c) Certificate from Gram Panchayat
(in case of illiterate); d) Aadhar Card
10. Proof of Occupation and Income of the deceased which may be in
form of a) Pay slip/salary certificate (salaried employee); b) Bank
statements of the last six months; c) Income tax Return; Balance Sheet
11. Treatment record, medical bills and other expenditure.
12. Disability certificate (if available)
13. Proof of absence from work where loss of income on account of
injury is being claimed, which may be in the form of a) Certificate
from the employer; b) Extracts from the attendance register.
14. Proof of reimbursement of medical expenses by employer or under a
Mediclaim policy, if taken
15. Any other document found relevant
2020:DHC:3415-DB
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