Whether the court can impose condition when releasing accused on anticipatory bail that police will take him in custody for discovery U/S 27 of Evidence Act?

1) As regards the concern expressed on behalf of the state and the Union-that unconditional orders (i.e. those unrelated to a particular time frame) would result in non-co-operation of the Accused, with the investigating officer or authority, or that there would be reluctance to make statements to the prosecution, to assist in the recovery of articles that incriminate the Accused (and therefore can be used under Section 27, Evidence Act), this Court perceives such views to be vague and based apparently pre-conceived notions. If there is non-cooperation by an Accused - in the course of investigation, the remedy of seeking assistance of the court exists. Moreover, on this aspect too, Sibbia had envisioned the situation; the court had cited State of U.P. v. Deoman Upadhyaya MANU/SC/0060/1960 : 1961 (1) SCR 14, where this Court had observed as follows:

2) When a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him he may appropriately be deemed to have surrendered himself to the police. Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person in sufficient. A person directly giving to a police officer by word of mouth information which may be used as evidence against him, may be deemed to have submitted himself to the "custody" of the police officer within the meaning of Section 27 of the Indian Evidence Act: Legal Remembrancer v. Lalit Mohan Singh (MANU/WB/0391/1921 : (1921) I.L.R. 49 Cal. 167), Santokhi Beldar v. King Emperor (MANU/BH/0088/1932 : (1933) I.L.R. 12 Pat. 241). Exceptional cases may certainly be imagined in which a person may give information without presenting himself before a police officer who is investigating an offence. For instance, he may write a letter and give such information or may send a telephonic or other message to the police officer.

3) This view was reiterated and applied in Vallabhdas Liladhar v. Asst. Collector of Customs MANU/SC/0096/1964 : 1965 (3) SCR 854. The observations in Sibbia (supra) are relevant, and are reproduced again, for facility of reference:

4) One of such conditions can even be that in the event of the police making out a case of a likely discovery Under Section 27 of the Evidence Act, person released on bail shall be liable to be taken in police custody for facilitating the discovery. Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v. Deoman Upadhyaya.

5) Therefore, the "limited custody" or "deemed custody" to facilitate the requirements of the investigative authority, would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of recovery of an article, or discovery of a fact, which is relatable to a statement made during such event (i.e. deemed custody). In such event, there is no question (or necessity) of asking the Accused to separately surrender and seek regular bail.

6)   Therefore, courts and can, use their discretion, having regard to the offence, the peculiar facts, the role of the offender, circumstances relating to him, his likelihood of subverting justice (or a fair investigation), likelihood of evading or fleeing justice-to impose special conditions. Imposing such conditions, would have to be on a case to case basis, and upon exercise of discretion by the court seized of the application Under Section 438. In conclusion, it is held that imposing conditions such as those stated in Section 437(2) while granting bail, are normal; equally, the condition that in the event of the police making out a case of a likely discovery Under Section 27 of the Evidence Act, person released on bail shall be liable to be taken in police custody for facilitating the discovery. 

IN THE SUPREME COURT OF INDIA

Special Leave Petition (Criminal) Nos. 7281-7282/2017

Decided On: 29.01.2020

 Sushila Aggarwal and Ors. Vs. State (NCT of Delhi) and Ors.

Hon'ble Judges/Coram:

Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah and S. Ravindra Bhat, JJ.

Citation:  MANU/SC/0100/2020.

Read full judgment here: Click here

Print Page

Whether it is mandatory to prepare and prove spot panchnama in offence U/S 294 of IPC?

 Section 294 in The Indian Penal Code

 [294. Obscene acts and songs.—Whoever, to the annoyance of others—

(a) does any obscene act in any public place, or

(b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.]

As per this section offence should occur in a public place. Hence the prosecution must prove that crime happened in a public place. Therefore it is mandatory for investigating officer to prepare spot panchnama to show that offence occurred in a public place. The prosecution can also prove that incident happened in a public place by adducing other evidence.

Print Page

Important Notes on Indian Penal Code

1) Notes on S 34 and S149 IPC- Principle of constructive liability

https://www.lawweb.in/2018/08/notes-on-s-34-and-s-149-ipc-principle.html

2) Notes on offence of Forgery

https://www.lawweb.in/2018/08/notes-on-offence-of-forgery.html

3) Notes on offence of Mischief and Criminal Trespass

https://www.lawweb.in/2018/08/notes-on-offence-of-mischief-and.html

4) Notes on offence of receiving of stolen property

https://www.lawweb.in/2018/08/notes-on-offence-of-receiving-of-stolen.html

5)Notes on offence of Mischief and Criminal Trespass

Print Page

Whether agreement to commit an act which furnishes ground for civil action amounts to criminal conspiracy?

Section 120A in The Indian Penal Code

[120A. Definition of criminal conspiracy.—When two or more per­sons agree to do, or cause to be done,—

(1) an illegal act, or

(2) an act which is not illegal by illegal means, such an agree­ment is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation.—It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.]

Illegal Act

According to the Indian Penal Code, the term, ‘illegal’ includes everything that is an offence, or which furnishes a ground for civil action or which is prohibited by law.Hence, two or more persons would be held guilty under this provision if they agree to do an act prohibited by law or which is illegal or gives a ground for a civil action..

Apart from acts which are prohibited by law, acts that may be grounds for civil actions could be-

1. Breaches of contract; or
2. Wrongs independent of contract

Print Page

Supreme Court decriminalised all consensual sex among adults in private including homosexual sex

We hold and declare that:

(i) Section 377 of the Penal Code, in so far as it criminalises consensual sexual conduct between adults of the same sex, is unconstitutional;

(ii) Members of the LGBT community are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution;

(iii) The choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation;

(iv) Members of the LGBT community are entitled to the benefit of an equal citizenship, without discrimination, and to the equal protection of law; and

(v) The decision in Koushal stands overruled.

IN THE SUPREME COURT OF INDIA

Writ Petition (Criminal) No. 76 of 2016, 

Decided On: 06.09.2018

 Navtej Singh Johar  Vs. Union of India (UOI) and Ors.

Print Page

Supreme Court Judgment upholding sexual autonomy of married woman(Adultery Judgment)

 The contra view is that adultery is a marital wrong, which should have only civil consequences. A wrong punishable with criminal sanctions, must be a public wrong against society as a whole, and not merely an act committed against an individual victim.

To criminalize a certain conduct is to declare that it is a public wrong which would justify  public censure, and warrant the use of criminal sanction against such harm and wrong doing.

The autonomy of an individual to make his or her choices with respect to his/her sexuality in the most intimate spaces of life, should be protected from public censure through criminal sanction. The autonomy of the individual to take such decisions, which are purely personal, would be repugnant to any interference by the State to take action purportedly in the „best interest‟ of the individual.

Andrew Ashworth and Jeremy Horder in their commentary titled „Principles of Criminal Law‟59 have stated that the traditional starting point of criminalization is the „harm principle‟ the essence of which is that the State is justified in criminalizing a conduct which causes harm to others. The authors opine that the three elements for criminalization are: (i) harm, (ii) wrong doing, and (iii) public element, which are required to be 59 Oxford University Press, (7th Edn.) May 2013  proved before the State can classify a wrongful act as a criminal offence.

John Stuart Mill states that ―the only purpose for which power can be rightly exercised over the member of a civilized community against his will is The other important element is wrongfulness. Andrew Simester and Andreas von Hirsch opine that a necessary pre-requisite of criminalization is that the conduct amounts to a moral wrong.61 That even though sexual infidelity may be morally wrong conduct, this may not be a sufficient condition to criminalize the same.

17. In my view, criminal sanction may be justified where there is a public element in the wrong, such as offences against State security, and the like. These are public wrongs where the victim is not the individual, but the community as a whole.

60 Mill, John S., Chapter I: Introductory, On Liberty, Published London: Longman, Roberts, & Green Co. 1869, 4th Edn.

61 A P Simester and Andreas von Hirsch, Crimes, Harms, And Wrongs: On The Principles Of Criminalisation, Oxford: Hart Publishing (2011)  Adultery undoubtedly is a moral wrong qua the spouse and the family. The issue is whether there is a sufficient element of wrongfulness to society in general, in order to bring it within the ambit of criminal law?

The element of public censure, visiting the delinquent with penal consequences, and overriding individual rights, would be justified only when the society is directly impacted by such conduct. In fact, a much stronger justification is required where an offence is punishable with imprisonment.

The State must follow the minimalist approach in the criminalization of offences, keeping in view the respect for the autonomy of the individual to make his/her personal choices.

The right to live with dignity includes the right not to be subjected to public censure and punishment by the State except where absolutely necessary. In order to determine what conduct requires State interference through criminal sanction, the State must consider whether the civil remedy will serve the purpose. Where a  civil remedy for a wrongful act is sufficient, it may not warrant criminal sanction by the State.

18. In view of the aforesaid discussion, and the anomalies in Section 497, as enumerated in para 11 above, it is declared that :

(i) Section 497 is struck down as unconstitutional being violative of Articles 14, 15 and 21 of the Constitution.

(ii) Section 198(2) of the Cr.P.C. which contains the procedure for prosecution under Chapter XX of the I.P.C. shall be unconstitutional only to the extent that it is applicable to the offence of Adultery under Section 497.

(iii) The decisions in Sowmithri Vishnu (supra), V.

Rewathi (supra) and W. Kalyani (supra) hereby stand overruled.

IN THE SUPREME COURT OF INDIA

Writ Petition (Criminal) No. 194 of 2017 (Under Article 32 of the Constitution of India)

Decided On: 27.09.2018

Joseph Shine Vs. Union of India (UOI)

Print Page

Supreme court judgment limiting Marital rape of Minor Bride

The Petitioner was a registerd society registered and had since been working in the area of child rights. The society provides technical and hand-holding support to non-governmental organizations as also to government and multilateral bodies in several States in Country. It has also been involved in legal intervention, research and training on issues concerning children and their rights. The society had filed a petition in public interest with a view to draw attention to the violation of the rights of girls who were married between the ages of 15 and 18 years. Hence, present petition. 

Held, while allowing the petition:

Madan B. Lokur, J.:

(i) Prima facie it might appear that since rape is an offence under the Indian Penal Code (subject to Exception 2 to Section 375) while penetrative sexual assault or aggravated penetrative sexual assault is an offence under the POCSO Act and both are distinct and separate statutes, therefore there is no inconsistency between the provisions of the Indian Penal Code and the provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO). However the fact was that there was no real distinction between the definition of rape under the Indian Penal Code and the definition of penetrative sexual assault under the POCSO Act. There was also no real distinction between the rape of a married girl child and aggravated penetrative sexual assault punishable under Section 6 of the POCSO Act. Additionally, the punishment for the respective offences was the same, except that the marital rape of a girl child between 15 and 18 years of age was not rape in view of Exception 2 to Section 375 of the Code. In sum, marital rape of a girl child was effectively nothing but aggravated penetrative sexual assault and there was no reason why it should not be punishable under the provisions of the Indian Penal Code. Therefore, it does appear that only a notional or linguistic distinction was sought to be made between rape and penetrative sexual assault and rape of a married girl child and aggravated penetrative sexual assault. There was no rationale for this distinction and it was nothing but a completely arbitrary and discriminatory distinction. [98]

(ii) Exception 2 to Section 375 of the Code to now be meaningfully read as: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape." It was only through this reading that the intent of social justice to the married girl child and the constitutional vision of the framers of our Constitution could be preserved and protected and perhaps given impetus. [105]

Deepak Gupta, J.:Concurring view

(iii) The State was entitled and empowered to fix the age of consent. The State could make reasonable classification but while making any classification it must show that the classification has been made with the object of achieving a certain end. The classification must have a reasonable nexus with the object sought to be achieved. In this case the justification given by the State was only that it did not want to punish those who consummate their marriage. The stand of the State was that keeping in view the sanctity attached to the institution of marriage, it has decided to make a provision in the nature of Exception 2 to Section 375 of Code. This begs the question as to why in this exception the age has been fixed as 15 years and not 18 years. As pointed out earlier, a girl can legally consent to have sex only after she attains the age of 18 years. She could legally enter into marriage only after attaining the age of 18 years. When a girl gets married below the age of 18 years, the persons who contract such a marriage or abet in contracting such child marriage, commit a criminal offence and were liable for punishment under the Prohibition of Child Marriage Act, 2006. In view of this position there was no rationale for fixing the age at 15 years. This age has no nexus with the object sought to be achieved viz., maintaining the sanctity of marriage because by law such a marriage was not legal. It may be true that this marriage was voidable and not void ab initio (except in the State of Karnataka) but the fact remains that if the girl has got married before the age of 18 years, she has right to get her marriage annulled. Irrespective of the fact that the right of the girl child to get her marriage annulled, it was indisputable that a criminal offence has been committed and other than the girl child, all other persons including her husband, and those persons who were involved in getting her married were guilty of having committed a criminal act. When the State on the one hand, has, by legislation, laid down that abetting child marriage was a criminal offence, it could not, on the other hand defend this classification of girls below 18 years on the ground of sanctity of marriage because such classification has no nexus with the object sought to be achieved. Therefore, also Exception 2 in so far as it relates to girls below 18 years was discriminatory and violative of Article 14 of the Constitution. [183]

(iv) One more ground for holding that Exception 2 to Section 375 of Code was discriminatory was that this was the only provision in various penal laws which gives immunity to the husband. The husband was not immune from prosecution as far as other offences were concerned. Therefore, if the husband beats a girl child and has forcible sexual intercourse with her, he may be charged for offences under Sections 323, 324, 325 of Code etc. but he could not be charged with rape. This leads to an anomalous and astounding situation where the husband could be charged with lesser offences, but not with the more serious offence of rape. As far as sexual crimes against women were concerned, these were covered by Sections 354, 354A, 354B, 354C, 354D of the Code. These relate to assault or use of criminal force against a woman with intent to outrage her modesty; sexual harassment and punishment for sexual harassment; assault or use of criminal force to woman with intent to disrobe; voyeurism; and stalking respectively. There was no exception Clause giving immunity to the husband for such offences. The Domestic Violence Act would also apply in such cases and the husband does not get immunity. There were many other offences where the husband was either specifically liable or may be one of the accused. The husband was not given the immunity in any other penal provision except in Exception 2 to Section 375 of Code. It did not stand to reason that only for the offence of rape the husband should be granted such an immunity especially where the "victim wife" was aged below 18 years i.e. below the legal age of marriage and was also not legally capable of giving consent to have sexual intercourse. Exception 2 to Section 375 of Code was, therefore, discriminatory and violative of Article 14 of the Constitution of India, on this count also. [184]

(v) Exception 2 to Section 375 of Code in so far as it relates to a girl child below 18 years was liable to be struck down on the following grounds:(i) it was arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Article 14, 15 and 21 of the Constitution of India; (ii) it was discriminatory and violative of Article 14 of the Constitution of India and; (iii) it was inconsistent with the provisions of POCSO, which must prevail. [195]

IN THE SUPREME COURT OF INDIA

Writ Petition (Civil) No. 382 of 2013 (Under Article 32 of the Constitution of India)

Decided On: 11.10.2017

 Independent Thought Vs. Union of India (UOI) 

Print Page

Virsa Singh's judgment on essential ingredients of offence of murder

This Judgment is landmark as after Judgement in this case intention became important for determining whether it is murder or not.

To put it shortly, the prosecution must prove the following facts before it can bring a case under s. 300, "3rdly";

22. First, it must establish, quite objectively, that a bodily injury is present.

23. Secondly, the nature of the injury must be proved; These are purely objective investigations.

24. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.

25. Once these three elements are proved to be present, the enquiry proceeds further and.

26. Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature.

This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

27. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under s. 300, 3rdly.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 90 of 1957

Decided On: 11.03.1958

Virsa Singh Vs. The State of Punjab

Hon'ble Judges/Coram:

P.B. Gajendragadkar, Syed Jaffer Imam and Vivian Bose, JJ.

Citation:1958 CriLJ 818 

Vivian Bose, J.

Print Page