Whether police must register FIR If the offence is about to happen?

  Learned counsel for the petitioners have placed

reliance on the judgment in the case of Lalita Kumari vs

Government of Uttar Pradesh and Others [(2014) 2 SCC

1] in support of their argument that the seizure panchanama

conducted by the appellants without registration of FIR was

illegal.

10. Examined whether the ratio in Lalita Kumari

(supra) is applicable in a situation where a police officer only

receives a credible or secret information about an offence

which is about to be committed, I may with great respect

observe that the primary duty of police is to prevent an

offence from happening; immediately after receiving the

information, a police officer has to proceed to spot for

averting the crime, and taking such other measures as the

situation demands. In Lalita Kumari (supra), the focus is

on the duty of Station House Officer once he receives

information about commission of offence, that means the

information should disclose a crime being already

committed. And in such a situation, if the crime is

cognizable, the Station House Officer is bound to register FIR

without wasting time. But the secret information does not

disclose a crime being committed, it only alerts the police

about a crime which is about to occur. The police officer

who receives such information has to proceed to spot for

preventing the crime or to take such other measures that the

situation demands. Thereafter if he prepares a report, it may

be treated as FIR for further course of action. Sometimes,

offences do take place in the presence of the police officer. In

such a situation, his first duty is to arrest the accused and

collect the evidence, and not registration of FIR.

11. In the case on hand what the police officer

received was a report about likelihood of offences under

NDPS Act being committed, the informant only suspected

possession of contraband substances, regarding which no

FIR could be registered without ascertaining the truth in the

information. The seizure panchanama discloses that the

petitioners and other accused possessed contraband

substance for the purpose of selling them. He seized the

substances and made a report of the same. No error can be

found in it.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

CRIMINAL PETITION No.3073 OF 2020

Tasleem N.P @ Muhammed Thaslim N P  Vs State of Karnataka,

BEFORE

 MR. JUSTICE SREENIVAS HARISH KUMAR

DATED: 01ST DAY OF OCTOBER 2020

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Whether court can prosecute parties for making false pleading as per S 209 of IPC U/S 340 of CRPC?

15. Conclusions

15.1 Section 209 of the Indian Penal Code, is a salutary provision enacted to preserve the sanctity of the Courts and to safeguard the administration of law by deterring the litigants from making the false claims. However, this provision has been seldom invoked by the Courts. The disastrous result of not invoking Section 209 is that the litigants indulge in false claims because of the confidence that no action will be taken.

15.2 Making a false averment in the pleading pollutes the stream of justice. It is an attempt at inviting the Court into passing a wrong judgment and that is why it has been be treated as an offence.

15.3 False evidence in the vast majority of cases springs out of false pleading, and would entirely banish from the Courts if false pleading could be prevented.

15.4 Unless the judicial system protects itself from such wrongdoing by taking cognizance, directing prosecution, and punishing those found guilty, it will be failing in its duty to render justice to the citizens.

15.5 The justice delivery system has to be pure and should be such that the persons who are approaching the Courts must be afraid of making false claims.

15.6 To enable the Courts to ward off unjustified interference in their working, those who indulge in immoral acts like false claims have to be appropriately dealt with, without which it would not be possible for any Court to administer justice in the true sense and to the satisfaction of those who approach it in the hope that truth would ultimately prevail.

15.7 Whenever a false claim is made before a Court, it would be appropriate, in the first instance, to issue a show cause notice to the litigant to show cause as to why a complaint be not made under Section 340 Cr.P.C. for having made a false claim under Section 209 of the Indian Penal Code and a reasonable opportunity be afforded to the litigant to reply to the same. The Court may record the evidence, if considered it necessary.

15.8 If the facts are sufficient to return a finding that an offence appears to have been committed and it is expedient in the interests of justice to proceed to make a complaint under Section 340 Cr.P.C., the Court need not order a preliminary inquiry. But if they are not and there is suspicion, albeit a strong one, the Court may order a preliminary inquiry. For that purpose, it can direct the State agency to investigate and file a report along with such other evidence that they are able to gather.

15.9 Before making a complaint under Section 340 Cr.P.C., the Court shall consider whether it is expedient in the interest of justice to make a complaint.

15.10 Once it prima facie appears that an offence under Section 209 IPC has been made out and it is expedient in the interest of justice, the Court should not hesitate to make a complaint under Section 340 Cr.P.C.

16. This Court hopes that the Courts below shall invoke Section 209 of the Indian Penal Code in appropriate cases to prevent the abuse of process of law, secure the ends of justice, keep the path of justice clear of obstructions and give effect to the principles laid down by the Supreme Court in T. Arivandandam v. T.V. Satyapal (supra), S.P. Chengalvaraya Naida v. Jagannath (supra), Dalip Singh v. State of U.P.(supra), Ramrameshwari Devi v. Nirmala Devi (supra), Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria (supra), Kishore Samrite v. State of Uttar Pradesh (supra) and Subrata Roy Sahara v. Union of India (supra).

 IN THE HIGH COURT OF DELHI

RFA 784/2010

Decided On: 22.01.2016

H.S. Bedi Vs.  National Highway Authority of India

Hon'ble Judges/Coram: J.R. Midha, J.

Citation: MANU/DE/0154/2016

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Whether the court can acquit accused in case of circumstantial evidence if the prosecution fails to prove motive for the offence?

 Now so far as the submission on behalf of the accused that

in the present case the prosecution has failed to establish and

prove the motive and therefore the accused deserves acquittal is

concerned, it is true that the absence of proving the motive

cannot be a ground to reject the prosecution case. It is also true

and as held by this Court in the case of Suresh Chandra Bahri v.

State of Bihar 1995 Supp (1) SCC 80 that if motive is proved that

would supply a link in the chain of circumstantial evidence but

the absence thereof cannot be a ground to reject the prosecution

case. However, at the same time, as observed by this Court in

the case of Babu (supra), absence of motive in a case depending

on circumstantial evidence is a factor that weighs in favour of the

accused. In paragraphs 25 and 26, it is observed and held as

under:

“25. In State of U.P. v. Kishanpal (2008) 16 SCC 73, this Court

examined the importance of motive in cases of circumstantial

evidence and observed: (SCC pp. 8788,

paras 3839)

“38. … the motive is a thing which is primarily known to the

accused themselves and it is not possible for the prosecution to

explain what actually promoted or excited them to commit the

particular crime.

39. The motive may be considered as a circumstance which is

relevant for assessing the evidence but if the evidence is clear

and unambiguous and the circumstances prove the guilt of the

accused, the same is not weakened even if the motive is not a

very strong one. It is also settled law that the motive loses all its

importance in a case where direct evidence of eyewitnesses is

available, because even if there may be a very strong motive for

the accused persons to commit a particular crime, they cannot

be convicted if the evidence of eyewitnesses is not convincing. In

the same way, even if there may not be an apparent motive but if

the evidence of the eyewitnesses is clear and reliable, the

absence or inadequacy of motive cannot stand in the way of

conviction.”

26. This Court has also held that the absence of motive in a case

depending on circumstantial evidence is a factor that weighs in

favour of the accused. (Vide Pannayar v. State of T.N (2009) 9 SCC

152).”

(emphasis supplied)

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1121 OF 2016

Anwar Ali Vs The State of Himachal Pradesh 

Author: M.R. SHAH, J.

Dated: SEPTEMBER 25, 2020

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Whether an act would amount to an offence if general exceptions under IPC cover it?

 As rightly contended by Mr. Sharath Chandran, it is a misnomer to say that the "Chapter IV – General exceptions" of the IPC is a defence for the accused. In the opinion of this Court, every act should pass through the prism of Chapter IV of the IPC to graduate into an offence. If an act complained of falls within the net of the exceptions in Chapter IV of the IPC,

it is not an offence at all. Before going into the text of Chapter IV of the IPC, it may be apposite to quote Lord Macaulay in this regard:

“This Chapter has been framed in order to obviate

the necessity of repeating in every penal clause a

considerable number of limitations. Some limitations

relate only to a single provision, or to a very small class of

provisions…. Every such exception evidently ought to be

appended to the rule which it is intended to modify. But

there are other exceptions which are common to all the

penal clauses of the Code, or to a greater variety of clauses

dispersed over many chapters. It would obviously be

inconvenient to repeat these exceptions several times in

every page. We have, therefore, placed them in a separate

chapter and, we have provided that every definition of an

offence, every penal provision, and every illustration of a

definition or penal provision, shall be construed subject to

the provisions contained in that chapter.” T.B. Macaulay – The Works of Lord Macaulay: Critical & Historical Essays, Longman's Green, 1885

Edn. P.448

(emphasis supplied)

43. To hit the nail hard, Sections 6 and 84 IPC are extracted

hereunder:

Section 6 IPC:

"Throughout this Code every definition of an offence, every

penal provision, and every illustration of every such definition or penal provision shall be understood subject to the exceptions

contained in the Chapter entitled "General Exceptions", though those exceptions are not repeated in such definition, penal provision, or illustration.

Illustrations:

(a) The sections, in this Code, which contain definitions of

offences, do not express that a child under seven years of age cannot commit such offences, but the definitions are to be understood subject to the general exception which provides that nothing shall be an offence which is done by a child under seven years of age.

(b) A, a police-officer, without warrant, apprehends Z,

who has committed murder. Here A is not guilty of the offence of

wrongful confinement; for he was bound by law to apprehend Z and therefore the case falls within the general exception which provides that “nothing is an offence which is done by a person who is bound by law to do it”.

Section 84 IPC:

“Act of a person of unsound mind.—Nothing is an offence

which is done by a person who, at the time of doing it, by reason of

unsoundness of mind, is incapable of knowing the nature of the act,

or that he is doing what is either wrong or contrary to law.”

(emphasis supplied)

44. Therefore, it is beyond a pale of doubt that the framers of the

Code had catalogued the exceptions in Chapter IV of the IPC in such a way that every criminal act passes muster the exceptions contained therein to metamorphosize into an offence.

47. Ex consequenti, this Court is in complete agreement with the

summing up words of Mr. Sharath Chandran that what is not an offence does not require a defence. This Court is further fortified in leaning towards the contemporary school of thought by the usage of the expression "after hearing the defence of the accused, but, without questioning the accused" in Section

329(2) Cr.P.C. The legislature was aware that in an enquiry under the second

limb of Section 329(2) Cr.P.C., the trial Court is dealing with the case of a

person who has been found unfit to defend himself. Nevertheless, the legislature has recognised his legal right to be defended by an advocate who can effectively articulate the case of the accused and place materials of sterling quality before the Court to show that even at the time of commission of the criminal act, the accused was suffering from mental illness of such a kind so as to bring him within the exception under Section 84 IPC. 

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Crl.O.P.No.4993 of 2018 and Crl.M.P.Nos.2485 & 2486 of 2018

Kaliyappan Muniyappan Aanurpatty Vs State 

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Whether the court can convict accused who was a member of unlawful assembly for Murder read with the third clause of 141 of IPC?

141. Unlawful assembly An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is-

First - To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or

Second - To resist the execution of any law, or of any legal process; or

Third - To commit any mischief or criminal trespass, or other offence; or

Fourth - By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or

Fifth - by means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.

Explanation -- An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.

38. Section 141 'third', clearly mentions that an assembly of five or more persons is designated as an unlawful assembly if the common object of the persons composing that assembly as among other offences namely, mischief or criminal trespass or commission of other offence. A literal interpretation, therefore, only means that apart from the offence of mischief and criminal trespass, all other offences would fall within the said clause 'third' mentioned in Section 141. 

39. The principle 'ejusdem generis' means 'where a law lists specific classes of persons or things and then refers to them in general, the general statements only apply to the same kind of persons or things specifically listed'. The learned senior counsel for the Appellants, therefore, contended that since the expression "other offence" under Section 141 'third' has been used along with the offence, mischief or criminal trespass, it can only relate to similar such offences of the same species and not commission of all other offences as in the case on hand, namely, murder or attempt to commit murder.

42. We fail to appreciate as to how simply because the offences mischief or criminal trespass are used preceding the expression "other offence" in Section 141 'third', it should be taken that such offence would only relate to a minor offence of mischief or trespass and that the expression "other offence" should be restricted only to that extent. As pointed out by us above, the offence of mischief and trespass could also be as grave as that of an offence of murder, for which the punishment of life imprisonment can be imposed as provided for under Sections 438, 449, 450 etc. Therefore, we straight away hold that the argument of learned senior counsel for the Appellants to import the principle of 'ejusdem generis' to Section 141 'third', cannot be accepted.

43. The submission of the learned senior counsel cannot also be countenanced by applying Section 40 of the Code, which specifically mentions as to how the term 'offence' will have to be construed. In the main clause of the said section it has been clearly set out that the word "offence" denotes a thing made punishable by this Code except the Chapters and Sections mentioned in clauses 2 and 3 of the said section. Therefore, going by the main clause of Section 40, the word "offence" since denotes the thing made punishable under the Code, 'other offence' mentioned in Section 141 'third', can only denote to offences, which are punishable under any of the provisions of the Code. Therefore, by applying the main clause of Section 40, it can be straight away held that all offences referred to in any of the provisions of the Code for which the punishment is provided for would automatically fall within the expression "other offence", which has been used in Section 141 'third'.

46. Therefore, a conspectus reading of Section 40 makes the position abundantly clear that for all offences punishable under the Indian Penal Code, the main clause of Section 40 would straight away apply in which event the expression "other offence" used in Section 141 'third', will have to be construed as any offence for which punishment is prescribed under the Code.  Therefore, having regard to Sub-clause 1 of Section 40 of the Code read along with Section 141 'third', the argument of learned senior counsel for the Appellants will have to be rejected. We are, therefore, of the firm view that only such a construction would be in tune with the purport and intent of the law makers while defining an unlawful assembly for commission of an offence with a common object, as specified under Section 141 of the Code. In the case on hand, since no special law or local law was attracted and the accused were charged only for the offence under the Indian Penal Code, Section 40(1) gets attracted along with Section 141 'third' Indian Penal Code. Having regard to such a construction of ours on Section 141, read along with Section 40 Indian Penal Code, the offence found proved against the Appellants, namely, falling under Sections 302 read with 149, 307 read with 149 along with 147 and 148 of the Code for which the conviction and sentence imposed by the Court below cannot be found fault with.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 1156, 1157, 1158, 1159, 1160, 1161, 1162, 1163, 1164, 1165 and 1166 of 2008

Decided On: 03.05.2013

Manga  Vs.   State of Uttarakhand

Hon'ble Judges/Coram:

B.S. Chauhan and F.M. Ibrahim Kalifulla, JJ.

Author: F.M. Ibrahim Kalifulla, J.

Citation: ( 2013 ) 7 SCC 629,2013 CRLJ 3332,MANU/SC/0464/2013

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Supreme Court: Police officer can not register offence, arrest accused and investigate the case under the Drugs and Cosmetics Act

THE CONCLUSIONS/DIRECTIONS

150. Thus, we may cull out our conclusions/directions as follows:

I. In regard to cognizable offences under Chapter IV of the Act, in view of Section 32 of the Act and also the scheme of the Code of Criminal Procedure, the Police Officer cannot prosecute offenders in regard to such offences. Only the persons mentioned in Section 32 are entitled to do the same.

II. There is no bar to the Police Officer, however, to investigate and prosecute the person where he has committed an offence, as stated Under Section 32(3) of the Act, i.e., if he has committed any cognizable offence under any other law.

III. Having regard to the scheme of the Code of Criminal Procedure and also the mandate of Section 32 of the Act and on a conspectus of powers which are available with the Drugs Inspector under the Act and also his duties, a Police Officer cannot register a FIR Under Section 154 of the Code of Criminal Procedure, in regard to cognizable offences under Chapter IV of the Act and he cannot investigate such offences under the provisions of the Code of Criminal Procedure.

IV. Having regard to the provisions of Section 22(1)(d) of the Act, we hold that an arrest can be made by the Drugs Inspector in regard to cognizable offences falling under Chapter IV of the Act without any warrant and otherwise treating it as a cognizable offence. He is, however, bound by the law as laid down in D.K. Basu (supra) and to follow the provisions of Code of Criminal Procedure.

V. It would appear that on the understanding that the Police Officer can register a FIR, there are many cases where FIRs have been registered in regard to cognizable offences falling under Chapter IV of the Act. We find substance in the stand taken by learned Amicus Curiae and direct that they should be made over to the Drugs Inspectors, if not already made over, and it is for the Drugs Inspector to take action on the same in accordance with the law. We must record that we are resorting to our power Under Article 142 of the Constitution of India in this regard.

VI. Further, we would be inclined to believe that in a number of cases on the understanding of the law relating to the power of arrest as, in fact, evidenced by the facts of the present case, police officers would have made arrests in regard to offences under Chapter IV of the Act. Therefore, in regard to the power of arrest, we make it clear that our decision that Police Officers do not have power to arrest in respect of cognizable offences under Chapter IV of the Act, will operate with effect from the date of this Judgment.

VII. We further direct that the Drugs Inspectors, who carry out the arrest, must not only report the arrests, as provided in Section 58 of the Code of Criminal Procedure, but also immediately report the arrests to their superior Officers.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 200 of 2020 

Decided On: 28.08.2020

 Union of India (UOI)  Vs. Ashok Kumar Sharma and Ors.

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Supreme Court: Court should not reject bail on the ground that offence is grave and serious

The offence alleged no doubt is grave and serious and there are several criminal cases pending against the Accused. These factors by themselves cannot be the basis for refusal of prayer for bail. The High Court has exercised its discretion in granting bail to the Accused Vikram Singh upon considering relevant materials. No ex-facie error in the order has been shown by the Appellant which would establish exercise of such discretion to be improper. We accordingly sustain the order of the High Court granting bail. This appeal is dismissed.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 153 of 2020 

Decided On: 24.01.2020

Prabhakar Tewari  Vs.  State of U.P. and Ors.

Hon'ble Judges/Coram:

Deepak Gupta and Aniruddha Bose, JJ.

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Whether court should deny anticipatory bail to accused if mobile phone by which offence was committed was registered in his name?

Once the mobile phone, which has been used in the commission

of the offence, is registered in the name of the petitioner and the said

number has been issued after the bio-metric verification of KYC of the

petitioner, it is the petitioner, who has to explain as to how the said number

was used for the commission of the offence. Learned counsel for the

petitioner has not denied during the hearing that said mobile number is

being used by the petitioner. Moreover, the said phone is yet to be

recovered. Keeping in view these facts, it is not a case where petitioner

can claim that he is not related to the incident.

Once the recovery of the phone is to be effected, the custodial

interrogation of the petitioner is necessary so as to find out as to whether

petitioner is also involved in any other cases of the similar nature or not.

No ground is made out to allow the petitioner the benefit of pre-arrest bail,

hence the prayer is declined and the petition is dismissed.

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

(202) CRM No. M-6558 of 2020

Date of Decision : 03.06.2020

Shubham Singh Vs  State of Punjab

CORAM :  MR. JUSTICE HARSIMRAN SINGH SETHI

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Whether causing simple hurt can be treated as crime involving moral turpitude for taking disciplinary action against employee??

There can be no manner of doubt about certain offences which can straightaway be termed as involving moral turpitude e.g. offences under the Prevention of Corruption of Act, NDPS Act, etc. The question that arises for our consideration in this case is whether an offence involving bodily injury can be categorized as a crime involving moral turpitude. In this case, we are concerned with an assault. It is very difficult to state that every assault is not an offence involving moral turpitude. A simple assault is different from an aggravated assault. All cases of assault or simple hurt cannot be categorized as crimes involving moral turpitude. On the other hand, the use of a dangerous weapon which can cause the death of the victim may result in an offence involving moral turpitude. In the instant case, there was no motive for the Respondent to cause the death of the victims. The criminal courts below found that the injuries caused to the victims were simple in nature. On an overall consideration of the facts of this case, we are of the opinion that the crime committed by the Respondent does not involve moral turpitude. As the Respondent is not guilty of an offence involving moral turpitude, he is not liable to be discharged from service.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7011 of 2009

Decided On: 26.04.2019

 The State Bank of India  Vs.  P. Soupramaniane

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Whether demand of bribe without acceptance amounts to offence under Prevention of Corruption Act?

Section 7 on the other hand, is wider and uses the words "accepts" or "obtains" or "agrees to accept" or "attempts to obtain". All these four words or phrases are used for specific purposes, thus Section 7 envisages that acceptance of bribe money is covered under the words "accepts" or "obtains". However, the use of the phrases "agrees to accept" or "attempts to obtain" would clearly cover the case of demand. In these eventualities, there may or may not be acceptance and yet the offence is complete as per Section 7. Thus there is no manner of doubt to hold that the demand is covered under Section 7. Similar phrases are used in Section 13 (1)(a) and 13 (1)(b), thus under both these clauses, mere demand without acceptance is envisaged for which punishment is provided. Therefore, it cannot be said that mere demand is not an offence.

18. A Division Bench of this Court in the case of Ashok S/o. Ganapati Kolte & Anr. v. The State of Maharashtra & Ors., reported MANU/MH/3045/2016 : (2016) ALL MR (Cri.) page 4317 has already dealt with this issue and has squarely held that for constituting offence under Section 7, there was no need to show the acceptance of bribe and mere agreeing to accept or attempting to accept the bribe from any person is sufficient. In the said case, the applicant therein had prayed for quashing of the F.I.R. on the similar set of facts. In that case, demand was made but suspecting the proposed trap, the accused decided not to accept the bribe amount. This case is very similar to the case before us and we are in agreement with the ratio laid down in the said judgment.

19. Even the Hon'ble Supreme Court has held that each demand constituted a separate offence by itself. 

IN THE HIGH COURT OF BOMBAY

Criminal Application No. 1077 of 2017

Decided On: 13.03.2018

Rajendra Shinde Vs. The State of Maharashtra

Hon'ble Judges/Coram:

R.M. Savant and Sarang V. Kotwal, JJ.

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Whether Indian citizen who has committed offence outside India can be tried by Indian courts?

Section 188 in The Code Of Criminal Procedure, 1973

188. Offence committed outside India. When an offence is committed outside India-

(a) by a citizen of India, whether on the high seas or elsewhere; or

(b) by a person, not being such citizen, on any ship or aircraft registered in India, he may be dealt with in respect of such offence as if it had been com- mitted at any place within India at which he may be found: Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.

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Whether police can register offence U/S 31 of Domestic violence Act?

Sec. 32 of the DV Act reads as follows:

“Sec. 32: Cognizance and proof.-- (1) Notwithstanding anything

contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offence

under sub-section (1) of Section 31 shall be cognizable and non-bailable.

(2) Upon the sole testimony of the aggrieved person, the Court

may conclude that an offence under sub-section (1) of Section 31 has been

committed by the accused.”

Sec.31 provides that the above offences are cognizable. Since

the offence under Sec.31 of the DV has been classified as an

cognizable offence as per the provisions of the abovesaid statute, it

cannot be said that the action of the Police in registering the

impugned Anx. A1 crime including the one under Sec. 31 of the DV is

in any manner illegal, improper or ultra vires. Moreover, it has to be

borne in mind that the specific allegations raised by the 2nd

respondent in Anx. A5 petition is that the accused persons had gone

to her residence and uttered obscene words and threatened and

manhandled her, etc. Therefore, the allegations in Anx. A5 petition

would constitute an offence as per Sec. 31 of the DV Act, inasmuch as

it discloses allegations that the petitioners herein, who are the

respondents Anx. A3 interim order in the DV application, have

violated the directives in Anx.A-3 order granted by the jurisdictional

Magistrate's court concerned in DV proceedings. Since the said

offence under Sec. 31 is cognizable and the correctness or otherwise

of the allegations raised in Anx. A5 would require investigation, etc.

no illegality can be attributed in the registering of the impugned Anx.

A-1 crime. Of course there could be some cases, where interim order

could be in the nature of a interim direction to the respondents in the

DV application, not to alienate immovable property , etc. and in such

cases, the allegation that the said interim order in the DV proceedings

not to alienate the above property has been breached by the other

party concerned, may not require much investigation and the same

could be dealt with as a complaint to be filed directly before the

learned Magistrate as it would be very easy to determine the factual

controversy as to whether the immovable property has been alienated

by the execution of the registered deed, etc. by the other party

concerned in breach of the interim order granted in the DV

application. Such is not the nature of the allegation in the instant

case. In the instant case, the allegation in Anx. A5 petition is that the

petitioners had gone to the residence of the 2nd respondent and

threatened and manhandled her, etc. and therefore ordinarily the

matter would require investigation etc. In the light of the facts and

circumstances of this case, this Court is of the view that no illegality

or impropriety has been committed in the registration of the

impugned Anx. A-1 crime.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

MR. JUSTICE ALEXANDER THOMAS

Crl.MC.No. 1848 of 2019

 PAUL,  Vs   STATE OF KERALA, 

Crl.M.C.No. 1848 of 2019

Dated this the 7th day of June, 2019

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Whether offence of dishonour of cheque is made out even if drawer of cheque has changed date of cheque to revalidate it?

 In our view this reasoning is entirely fallacious. There is no provision in the Negotiable Instruments Act or in any other law which stipulates that a drawer of a negotiable instrument cannot re-validate it. It is always open to a drawer to voluntarily revalidate a negotiable instrument, including a cheque. The High Court has also placed reliance on Section 87 of the Negotiable Instruments Act, which reads as follows:

87. Effect of material alteration -- Any material alteration of a negotiable instrument renders the same void as against any one who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties;

Alteration by indorsee -- Any such alteration, if made by an indorsee, discharges his endorser from all liability to him in respect of the consideration thereof.

The provisions of this section are subject to those of Sections 20, 49, 86 and 125". The first paragraph of Section 87 makes it clear that the party who consents to the alteration as well as the party who made the alteration are disentitled to complain against such alteration, e.g. if the drawer of the cheque himself altered the cheque for validating or revalidating the same instrument he cannot take advantage of it later by saying that the cheque became void as there is material alteration thereto.Further, even if the payee or the holder of the cheque made the alteration with the consent of the drawer thereof, such alteration also cannot be used as a ground to resist the right of the payee or the holder thereof. It is always a question of fact whether the alteration was made by the drawer himself or whether it was made with the consent of the drawer. It requires evidence to prove the aforesaid question whenever it is disputed.

It is held by the High Court that a change of date is a material alteration which affected the interests of the Respondent. It is held that the Respondent not being a willing party to the said alteration, the cheques were void as contemplated by Section 87 of the Negotiable Instruments Act. At this stage there is no basis for arriving at such a conclusion. In the earlier part of the impugned Judgment it has been correctly held that this is a question of fact. This is a fact which will have to be established on evidence during trial. At this stage the High Court could not have quashed the complaint merely on the basis of an assertion in the reply.

IN THE SUPREME COURT OF INDIA

Crl. A. Nos. 1110-1111 of 2001

Decided On: 02.11.2001

Veera Exports  Vs.  T. Kalavathy

Hon'ble Judges/Coram: 

K.T. Thomas and S.N. Variava, JJ.

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Whether court has discretion to refuse compounding of compoundable offence?

 Having heard the learned counsel on both sides we have
perused the impugned judgment and also other material placed
on record. It was the case of the prosecution that in the
beneficial scheme introduced for poor persons under
residential scheme an amount of Rs.9800/- was sanctioned
during the year 1991-92 to the complainant. It is the
specific case of the complainant that though she was to be
paid entire Rs.9800/-, but appellant misled her and procured
her signature and made payment of only Rs.4000/- and he has
utilised rest of the amount for himself for his personal
benefit and gain. Merely because an offence is compoundable
under Section 320 Cr.PC, still discretion can be exercised by
the court having regard to nature of offence, as such it is
rightly held in the impugned judgment that as the offence for
which appellant was convicted and sentenced, it will have its
own effect on the society at large. In view of the reasons

recorded in the impugned order rejecting the application for
compounding, it cannot be said that the High Court has
committed any error in not accepting the application filed
for compounding the offence.

NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No(s). 465 OF 2019
(Arising out of SLP(Crl.) No(s).125 of 2017)

BHAGYAN DAS  Vs THE STATE OF UTTARAKHAND 

R. SUBHASH REDDY, J.:
Dated:MARCH 11, 2019.

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Whether offence committed due to Premenstrual Stress Syndrome (PMS) qualifies for the defence of insanity?

It is trite that while the burden of proof for the prosecution to establish the guilt of accused is beyond reasonable doubt, the accused has to merely probabilize his defense by preponderance of probabilities. The Supreme Court in Bhikari v. State of U.P., supra, has held that where plea of insanity is invoked by the accused it is for him to establish that fact. In Sudhakaran v. State of Kerala, supra, the Supreme Court held that for the act of a person of unsound mind the crucial point of time for ascertaining existence of circumstances bringing case within purview of Section 84 of the IPC is the time when the offence is committed. The Supreme Court in Shrikant Anandrao Bhosale v. State of Maharashtra, supra, interpreting Section 105 Illustration (a) of the Indian Evidence Act, 1872 held that nature of burden of proof on the accused to prove insanity is no higher than that which rests upon a party in civil proceedings. Similarly in Elavarasan v. State represented by Inspector of Police, supra, the Supreme Court held that burden of bringing his/her case under Section 84 of the IPC lies upon person claiming benefit thereof. However, standard of proof which accused has to satisfy for discharge of burden under Section 105 is not same as is expected of prosecution. It is enough for accused to establish his defence on preponderance of probabilities, as in a civil case. 

30. Law is thus well settled that the burden which lays on the accused-appellant was not higher than that which rests upon a party in a civil suit. According to the position emerging from the evidence in the light of such settled law, the appellant has been able to probabilize her defence that at the time of incident she was suffering from unsoundness of mind and was labouring under a defect of reason triggered by premenstrual stress syndrome. Even if the material placed before the court is held to be not sufficient to discharge the burden under Section 105 of the Evidence Act, it still raises a reasonable doubt as to the existence of mens rea on the part of the accused-appellant, thus making out a case for extending benefit of doubt to her.

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

D.B. Criminal Appeal No. 44 of 1987

Decided On: 01.08.2018

 Kumari Chandra Vs. State of Rajasthan

Hon'ble Judges/Coram:

Mohammad Rafiq and Goverdhan Bardhar, JJ.

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Whether factors are to be taken in consideration while deciding bail application?

 It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the Accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the Accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the Accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT, Delhi MANU/SC/0193/2001 : (2001) 4 SCC 280 and Gurcharan Singh v. State (Delhi Admn.) MANU/SC/0420/1978 : (1978) 1 SCC 118]. While a vague allegation that the Accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the Accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ranjan MANU/SC/0214/2004 : (2004) 7 SCC 528: (SCC pp. 535-36, para 11)

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1938 of 2017.

Decided On: 14.11.2017

 Anil Kumar Yadav and Ors. Vs. State (NCT) of Delhi and Ors.

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When second FIR in relation to same offence and against same accused is maintainable?

From the aforesaid decisions, it is quite luminous that the lodgment of two FIRs is not permissible in respect of one and the same incident. The concept of sameness has been given a restricted meaning. It does not encompass filing of a counter-FIR relating to the same or connected cognizable offence. What is prohibited is any further complaint by the same complainant and others against the same Accused subsequent to the registration of the case under the Code, for an investigation in that regard would have already commenced and allowing registration of further complaint would amount to an improvement of the facts mentioned in the original complaint. As is further made clear by the three-Judge Bench in Upkar Singh, the prohibition does not cover the allegations made by the Accused in the first FIR alleging a different version of the same incident. Thus, rival versions in respect of the same incident do take different shapes and in that event, lodgment of two FIRs is permissible.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 408 of 2018 (Arising out of S.L.P. (Crl.) No. 7970 of 2014)

Decided On: 19.03.2018

 P. Sreekumar Vs.  State of Kerala and Ors.

Hon'ble Judges/Coram:

R.K. Agrawal and Abhay Manohar Sapre, JJ.

Citation: (2018) 4 SCC 579

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Whether refusal by accused to confess offence amounts to non co-operation by him in investigation?

It appears, the IO was of the view that the custody of the appellant is required for recording his confessional statement in terms of what the co-accused had already stated in the Statement under Section 161 of the Code of Criminal Procedure, 1973. The IO was of the opinion that the appellant was not cooperating because he kept reiterating that he had not purchased the food-grains. The purpose of custodial interrogation is not just for the purpose of confession.

The right against self-incrimination is provided for in Article 20(3) of the Constitution. It is a well settled position in view of the Constitution Bench decision in Selvi and others v. State of Karnataka 1, that Article 20(3) enjoys an "exalted status".

This provision is an essential safeguard in criminal procedure and is also meant to be a vital safeguard against torture and other coercive methods used by investigating authorities. Therefore, merely because the appellant did not confess, it cannot be said that the appellant was not cooperating with the investigation. However, in case, there is no cooperation on the part of the appellant for the completion of the investigation, it will certainly be open to the respondent to seek for cancellation of bail.

Reportable

SUPREME COURT OF INDIA

Santosh S/o. Dwarkadas Fafat Vs. State of Maharashtra

[Criminal Appeal No. 1759 of 2017 arising out of S.L.P. (Criminal) No. 8439 of 2016]

DATED:OCTOBER 10, 2017.

Citation:(2017)9 SCC714

KURIAN, J.:

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Whether prosecution case can be doubted on ground of non recovery of weapon of offence?

The next line of contention taken by the learned counsel for the respondents is that the recovery evidence was false and fabricated. We feel no need to address this issue since it had already been validly discarded by the Trial court while convicting the respondents. In any case, it is an established proposition of law that mere non-recovery of weapon does not falsify the prosecution case where there is ample unimpeachable ocular evidence. [See Lakahan Sao Vs. State of Bihar and Anr., (2000) 9 SCC 82; State of Rajasthan Vs. Arjun Singh & Ors., (2011) 9 SCC 115 and Manjit Singh and Anr. Vs. State of Punjab, (2013) 12 SCC 746].
Reportable

Supreme Court of India

Yogesh Singh vs Mahabeer Singh & Ors on 20 October, 2016

Bench: Pinaki Chandra Ghose, Amitava Roy

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Whether right of private defence is available even if there is no actual commission of offence?

 Having regard to the above, we are of the view that the appellant
reasonably apprehended a danger to his life when the deceased and his
brothers started strangulating him after pushing him to the floor.
As observed by this Court a mere reasonable apprehension is enough to put
the right of self-defence into operation and it is not necessary that there
should be an actual commission of the offence in order to give rise to the
right of private defence. It is enough if the appellant apprehended that such
an offence is contemplated and is likely to be committed if the right of
private defence is not exercised.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 1548 OF 2011

SURESH SINGHAL  V  STATE (DELHI ADMINISTRATION) 

Dated:February 02, 2017

Citation:(2017)2 SCC 737

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