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GUIDELINES ISSUED REGARDING WOMEN PRISONER AND RIGHTS OF CHILD BORN TO HER



AIR 2006 SC 1946, R.D. Upadhyay VS State of A.P. & Ors.

GUIDELINES :

1. A child shall not be treated as an undertrial/convict while in jail with his/her mother. Such a child is entitled to food, shelter, medical care, clothing, education and recreational facilities as a matter of right.

2. Pregnancy: a. Before sending a woman who is pregnant to a jail, the concerned authorities must ensure that jail in question has the basic minimum facilities for child delivery as well as for providing pre- natal and post-natal care for both, the mother and the child. b. When a woman prisoner is found or suspected to be pregnant at the time of her admission or at any time thereafter, the lady Medical Officer shall report the fact to the superintendent. As soon as possible, arrangement shall be made to get such prisoner medically examined at the female wing of the District Government Hospital for ascertaining the state of her health, pregnancy, duration of pregnancy, probable date of delivery and so on. After ascertaining the necessary particulars, a report shall be sent to the Inspector General of Prisons, stating the date of admission, term of sentence, date of release, duration of pregnancy, possible date of delivery and so on. c. Gynaecological examination of female prisoners shall be performed in the District Government Hospital. Proper pre-natal and post-natal care shall be provided to the prisoner as per medical advice.

3. Child birth in prison: a. As far as possible and provided she has a suitable option, arrangements for temporary release/parole (or suspended sentence in case of minor and casual offender) should be made to enable an expectant prisoner to have her delivery outside the prison. Only exceptional cases constituting high security risk or cases of equivalent grave descriptions can be denied this facility. b. Births in prison, when they occur, shall be registered in the local birth registration office. But the fact that the child has been born in the prison shall not be recorded in the certificate of birth that is issued. Only the address of the locality shall be mentioned. c. As far as circumstances permit, all facilities for the naming rites of children born in prison shall be extended.

4. Female prisoners and their children: a. Female prisoners shall be allowed to keep their children with them in jail till they attain the age of six years. b. No female prisoner shall be allowed to keep a child who has completed the age of six years. Upon reaching the age of six years, the child shall be handed over to a suitable surrogate as per the wishes of the female prisoner or shall be sent to a suitable institution run by the Social Welfare Department. As far as possible, the child shall not be transferred to an institution outside the town or city where the prison is located in order to minimize undue hardships on both mother and child due to physical distance. c. Such children shall be kept in protective custody until their mother is released or the child attains such age as to earn his/her own livelihood. d. Children kept under the protective custody in a home of the Department of Social Welfare shall be allowed to meet the mother at least once a week. The Director, Social Welfare Department, shall ensure that such children are brought to the prison for this purpose on the date fixed by the Superintendent of Prisons. e. When a female prisoner dies and leaves behind a child, the Superintendent shall inform the District Magistrate concerned and he shall arrange for the proper care of the child. Should the concerned relative(s) be unwilling to support the child, the District Magistrate shall either place the child in an approved institution/home run by the State Social Welfare Department or hand the child over to a responsible person for care and maintenance.

5. Food, clothing, medical care and shelter: a. Children in jail shall be provided with adequate clothing suiting the local climatic requirement for which the State/U.T. Government shall lay down the scales. b. State/U.T. Governments shall lay down dietary scales for children keeping in view the calorific requirements of growing children as per medical norms. c. A permanent arrangement needs to be evolved in all jails, to provide separate food with ingredients to take care of the nutritional needs of children who reside in them on a regular basis. d. Separate utensils of suitable size and material should also be provided to each mother prisoner for using to feed her child. e. Clean drinking water must be provided to the children. This water must be periodically checked. f. Children shall be regularly examined by the Lady Medical Officer to monitor their physical growth and shall also receive timely vaccination. Vaccination charts regarding each child shall be kept in the records. Extra clothing, diet and so on may also be provided on the recommendation of the Medical Officer. g. In the event of a woman prisoner falling ill, alternative arrangements for looking after any children falling under her care must be made by the jail staff. h. Sleeping facilities that are provided to the mother and the child should be adequate, clean and hygienic. i. Children of prisoners shall have the right of visitation. j. The Prison Superintendent shall be empowered in special cases and where circumstances warrant admitting children of women prisoners to prison without court orders provided such children are below 6 years of age.

6. Education and recreation for children of female prisoners: a. The child of female prisoners living in the jails shall be given proper education and recreational opportunities and while their mothers are at work in jail, the children shall be kept in crhches under the charge of a matron/female warder. This facility will also be extended to children of warders and other female prison staff. b. There shall be a crhche and a nursery attached to the prison for women where the children of women prisoners will be looked after. Children below three years of age shall be allowed in the crhche and those between three and six years shall be looked after in the nursery. The prison authorities shall preferably run the said crhche and nursery outside the prison premises.

7. In many states, small children are living in sub-jails that are not at all equipped to keep small children. Women prisoners with children should not be kept in such sub-jails, unless proper facilities can be ensured which would make for a conducive environment there, for proper biological, psychological and social growth.

8. The stay of children in crowded barracks amidst women convicts, undertrials, offenders relating to all types of crimes including violent crimes is certainly harmful for the development of their personality. Therefore, children deserve to be separated from such environments on a priority basis.

9. Diet : Dietary scale for institutionalized infants/children prepared by Dr. A.M. Dwarkadas Motiwala, MD (Paediatrics) and Fellowship in Neonatology (USA) has been submitted by Mr. Sanjay Parikh. The document submitted recommends exclusive breastfeeding on the demand of the baby day and night. If for some reason, the mother cannot feed the baby, undiluted fresh milk can be given to the baby. It is emphasized that "dilution is not recommended; especially for low socio-economic groups who are also illiterate, ignorant, their children are already malnourished and are prone to gastroenteritis and other infections due to poor living conditions and unhygienic food habits. Also, where the drinking water is not safe/reliable since source of drinking water is a question mark. Over-dilution will provide more water than milk to the child and hence will lead to malnutrition and infections. This in turn will lead to growth retardation and developmental delay both physically and mentally." …………… It is essential that the above food groups to be provided in the portions mentioned in order to ensure that both macronutrients and micronutrients are available to the child in adequate quantities.

10. Jail Manual and/or other relevant Rules, Regulations, instructions etc. shall be suitably amended within three months so as to comply with the above directions. If in some jails, better facilities are being provided, same shall continue.

11. Schemes and laws relating to welfare and development of such children shall be implemented in letter and spirit. State Legislatures may consider passing of necessary legislations, wherever necessary, having regard to what is noticed in this judgment.

12. The State Legal Services Authorities shall take necessary measures to periodically inspect jails to monitor that the directions regarding children and mother are complied with in letter and spirit.

13. The Courts dealing with cases of women prisoners whose children are in prison with their mothers are directed to give priority to such cases and decide their cases expeditiously.

14. Copy of the judgment shall be sent to Union of India, all State Governments/Union Territories, High Courts.

15. Compliance report stating steps taken by Union of India, State Governments, Union territories and State Legal Services Authorities shall be filed in four months whereafter matter shall be listed for directions.

The National Institute of Criminology and Forensic Sciences conducted a research study of children of women prisoners in Indian jails. The salient features of the study brought to the notice of all Governments in February 2002, are : (i) The general impression gathered was the most of these children were living in really difficult conditions and suffering from diverse deprivations relating to food, healthcare, accommodation, education, recreation, etc. (ii) No appropriate programmes were found to be in place in any jail, for their proper bio-psycho-social development. Their looking after was mostly left to their mothers. No trained staff was found in any jail to take care of these children. (iii) It was observed that in many jails, women inmates with children were not given any special or extra meals. In some cases, occasionally, some extra food, mostly in the form of a glass of milk, was available to children. In some jails, separate food was being provided only to grown up children, over the age of five years. But the quality of food would be same as supplied to adult prisoners. (iv) No special consideration was reported to be given to child bearing women inmates, in matters of good or other facilities. The same food and the same facilities were given to all women inmates, irrespective of the fact whether their children were also living with them or not. (v) No separate or specialised medical facilities for children were available in jails. (vi) Barring a few, most mother prisoners considered that their stay in jails would have a negative impact on the physical as well as mental development of their children. (vii) Crowded environment, lack of appropriate food, shelter and above all, deprivation of affection of other members of the family, particularly the father was generally perceived by the mothers as big stumbling blocks for the proper development of their children in the formative years of life. (viii) Mother prisoners identified six areas where urgent improvement was necessary for proper upkeep of their children. They related to food, medical facilities, accommodation, education, recreation and separation of their children from habitual offenders. (ix) No prison office was deployed on the exclusive duty of looking after these children or their mothers. They had to perform this duty alongside many other duties including administrative work, discipline maintenance, security-related jobs etc. None of them was reported to have undergone any special training in looking after the children in jails.




CHILD RIGHTS



In Sheela Barse v. Secretary, Children's Aid Society [(1987) 3 SCC 50] which dealt with the working of an Observation Home that was maintained and managed by the Children's Aid Society, Bombay, it was said: " Children are the citizens of the future era. On the proper bringing up of children and giving them the proper training to turn out to be good citizens depends the future of the country. In recent years, this position has been well realised. In 1959, the Declaration of all the rights of the child was adopted by the General Assembly of the United Nations and in Article 24 of the International Covenant on Civil and Political Rights, 1966. The importance of the child has been appropriately recognised. India as a party to these International Charters having ratified the Declaration, it is an obligation of the Government of India as also the State machinery to implement the same in the proper way. The Children's Act, 1948 has made elaborate provisions to cover this and if these provisions are properly translated into action and the authorities created under the Act become cognizant of their role, duties and obligation in the performance of the statutory mechanism created under the Act and they are properly motivated to meet the situations that arise in handing the problems, the situation would certainly be very much eased."





CHILD WITNESS



Section 118 of Evidence Act (I of 1872) provides that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same mind. The competency of a witness is a rule and their incompetence is the exception. The sole test is whether witness has sufficient intelligence to depose or whether he can appreciate the duty of speaking truth. Under Section 118 of the Evidence Act a child is competent to testify, provided he can understand the questions put to him and giving rational answers thereto.


Apex Court in case titled as Baby Kandayanathil v. State of Kerala reported in AIR 1993 SC 2275 : 1993 Cri LJ 2605 held that the statement of a child is admissible evidence and can be acted upon when recorded after putting preliminary questions to him and satisfying that he was answering intelligently and fearlessly and also gave all details of occurrence and withstood test of cross-examination.

Apex Court in case titled as Ratansinh Dalsukhbhat Nayak v. State of Gujarat reported as AIR 2004 SC 23 : 2004 Cri LJ 19 held that testimony of child witness is reliable moreso, when it receives corroboration from the evidence relating to the recovery and, report of Forensic Science Laboratory. Further it is held in the judgment that a child who sticks to her statement recorded during investigation in all material particulars, the trial Court is within its jurisdiction and power, is justified in placing implicit reliance on her.

Dattu Ramrao Sakhare and Others Vs. State of Maharashtra - (1997) 5 SCC 341, had held that there is no rule of practice that the evidence of a child witness needs corroboration in order to base conviction on it. However, as a rule of prudence, the Court insists it is desirable to have corroboration from other dependable evidence.

In Suryanarayana Vs. State of Karnataka - (2001) 9 SCC 129, Court held that corroboration of the testimony of a child witness is not a rule but is a measure of caution and prudence.




COLLECTOR ENQUIRING IN LAQ PROCEEDINGS IS NOT JUDICIAL OR QUASI JUDICIAL AUTHORITY



CRIMINAL APPEAL NO. 174 OF 2009 (Arising out of SLP [Criminal] No.3173 of 2006) Surendra Kumar Bhatia Vs. Kanhaiya Lal & Ors. DECIDED ON January 30, 2009. BY SUPREME COURT OF INDIA BY JUSTICE R.V.RAVEENDRAN, J.
Only Judges (as defined in section 19 IPC) acting judicially are entitled to the protection under Section 77 IPC. The Collector is neither a Judge as defined under Section 19 nor does he act judicially, when discharging any of the functions under the Act. Therefore he is not entitled to the protection under Section 77 IPC.

The question whether the Collector/Land Acquisition Officer while making an enquiry and award under the Act, acts in a judicial capacity or not, has been considered in a series of judgments. (Raja Harish Chandra Raj Singh vs. The Dy. Land Acquisition Officer - 1962 (1) SCR 676; M/s. Boman Behram v. State of Mysore - 1974 (2) SCC 316; Mrs. Khorshed Shapoor Chenai vs. Controller of Estate Duty - 1980 (2) SCC 1; Sharda Devi v. State Government of Bihar - 2003 (3) SCC 128, and Kiran Tandon v. Allahabad Development Authority - 2004 (10) SCC 745) The well settled principles are :

(a) Any inquiry as to the market value of property and determination of the amount of compensation by the Collector, is administrative and not judicial in nature, even though the Collector may have power to summon and enforce the attendance of witnesses and production of documents. In making an award or making a reference or serving a notice, the Collector neither acts in judicial nor quasi judicial capacity but purely in an administrative capacity, exercising statutory powers as an agent and representative of the Government/Acquiring Authority.

(b) The award by a Collector is merely an offer of the amount mentioned as compensation, on behalf of the Government/Acquiring Authority to the person/s interested. It is neither an executable decree, nor binds the owners or persons interested in the acquired property.

(c) The Collector does not function as a Judicial Officer who is required to base his decision only on the material placed in the enquiry in the presence of parties, but functions as a valuer who ascertains the market value on material collected from all sources, personal inspection and his own knowledge and experience.




LAST SEEN THEORY



In State of U.P. v. Satish [2005 (3) SCC 114] it was noted as follows: "The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."

In Ramreddy Rajeshkhanna Reddy v. State of A.P. [2006 (10) SCC 172] it was noted as follows: "The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration".

In Joseph and Poulo v. State of Kerala [2000(5) SCC 197] it was, inter alia, held as follows: "The formidable incriminating circumstances against the appellant, as far as we could see, are that the deceased was taken away from the convent by the appellant under a false pretext and she was last seen alive only in his company and that it is on the information furnished by the appellant in the course of investigation that jewels of the deceased which were sold to PW 11 by the appellant, were seized." "The incriminating circumstances enumerated above unmistakably and inevitably lead to the guilt of the appellant and nothing has been highlighted or brought on record to make the facts proved or the circumstances established to be in any manner in consonance with the innocence at any rate of the appellant. During the time of questioning under Section 313 Cr.P.C. the appellant instead of making at least an attempt to explain or clarity the incriminating circumstances inculpating him, and connecting him with the crime by his adamant attitude of total denial of everything when those circumstances were brought to his notice by the Court not only lost the opportunity but stood self-condemned. Such incriminating links of facts could, if at all, have been only explained by the appellant, and by nobody else, they being personally and exclusively within his knowledge. Of late, courts have, from the falsity of the defence plea and false answers given to court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed.(See: State of Maharashtra v. Suresh). That missing link to connect the accused appellant, we find in this case provided by the blunt and outright denial of every one and all that incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connect the accused with the death and the cause of the death of Gracy and for robbing her of her jewellery worn by her -- MOs 1 to 3, under Section 392. The deceased meekly went with the accused from the Convent on account of the misrepresentation made that her mother was seriously ill and hospitalised apparently reposing faith and confidence in him in view of his close relationship -- being the husband of her own sister, but the appellant seems to have not only betrayed the confidence reposed in him but also took advantage of the loneliness of the hapless woman. The quantum of punishment imposed is commensurate with the gravity of the charges held proved and calls for no interference in our hands, despite the fact that we are not agreeing with the High Court in respect of the findings relating to the charge under Section 376.




HUMAN RIGHTS



In respect of violations of human rights during investigation, in D.K. Basu v. State of West Bengal [(1997) 1 SCC 416], grave concern was expressed by Supreme Court in respect of persons who were supposed to be the protectors of the citizens and committed violence under the shield of uniform and authority in the four walls of a Police Station or lockup, the victims being totally helpless. It will be useful to note what was said in para 18 which reads : "However, in spite of the constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, growing incidence of torture and deaths in police custody has been a disturbing factor. Experience shows that worst violations of human rights take place during the course of investigation, when the police with a view to secure evidence or confession often resorts to third-degree methods including torture and adopts techniques of screening arrest by either not recording the arrest or describing the deprivation of liberty merely as a prolonged interrogation. A reading of the morning newspapers almost everyday carrying reports of dehumanising torture, assault, rape and death in custody of police or other governmental agencies is indeed depressing. The increasing incidence of torture and death in custody has assumed such alarming proportion that it is affecting the credibility of the rule of law and the administration of criminal justice system. The community rightly feels perturbed. Society's cry for justice becomes louder."

In Makinnon Mackenzie and Co. Ltd. v. Audrey D'Costa [(1987) SCC 469], Supreme Court considered the case of a "confidential lady stenographer" who complained that she and other women stenographers who are in the service of a company were being paid lower emoluments than their male counterparts. Taking note of the fact that India is a party to the international convention concerning equal remuneration for men and women for work of equal value (the Equal Remuneration Convention, 1951), the Court adopted a principle embodied in the Convention to construe a law enacted by the Parliament, the Equal Remuneration Act, 1976 to grant relief to the petitioner therein by holding the action of the employer to be an unconstitutional violation of the principles of equal pay for equal work.

In Sheela Barse v. Secretary, Children's Aid Soceity [(1987) 3 SCC 50 at 54], the petitioner complained about the state of affairs in an observation home for children. While issuing directions to the State of Maharashtra, it was held by this Court that the international instruments which had been ratified by India and which elucidated norms for the protection of children cast an obligation on the State to implement their principles. The Court said: "Children are the citizens of the future era. On the proper bringing up of children and giving them the proper training to turn out to be good citizens depends the future of the country. In recent years, this position has been well realized. In 1959 the Declaration of all the rights of the child was adopted by the General Assembly of the United Nations in Article 24 of the International Covenant on Civil and Political Rights, 1996, the importance of the child has been appropriately recognized. India as a part to these International Charters having ratified the Declaration, it is an obligation of the Government of India as also the State machinery to implement the same in the proper way."




PUCL VS UNION OF INDIA, 2005(2 )SCC 436 Per Y.K. Sabharwal, J: HELD:

1. The appointment of respondent No.2 as member of the National Human Rights Commission is declared null and void.
2. The Protection of Human Rights Act, 1993 was enacted to provide for better protection of human rights and for matters connected therewith or incidental thereto. India is a party to international covenants on human rights. Indian Constitution guarantees essential human rights in the form of fundamental rights under Part III and also directive principles of State Policy in Part IV which are fundamental in the governance of the country. Freedoms granted under Part III have been liberally construed by various pronouncement of this Court in last half a century in favour of the subjects also, keeping in view the international covenants. The object has been to place citizens at a central stage and State being highly accountable. These developments at international level ultimately led to the passing of the Act.

3. Investigation under the Act has been separately dealt with in the manner provided in Sections 11, 14 and 37. A Police officer may be very good investigator. He may have vast experience in respect of the nature of commission of crime and consequentially its prevention. But, for the present purposes what is relevant is that number of cases reported to NHRC relate to acts of omission and commission by the members of such forces. In this regard, reference is made to NHRC Report for the year 2001-02 which shows that large number of cases relating to custodial deaths and police encounter deaths came up for enquiry and consideration before the Commission. The officers of these forces while being members of service necessarily come across such cases. An individual officer may be very good but something inbuilt in service as a class is the relevant consideration. The Commission has also to deal with type of cases, which officers had sometimes to defend, on account of nature of their service. Further, the knowledge or practical experience in relation to commission of crime, investigation and solving a crime which may show violation of human rights is one thing and the knowledge or experience relating to protection of life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the international covenants and enforceable by courts in India is altogether different. The requirement of the section is of latter and not former.

4. Question to consider is the eligibility of a person who has to become a part of the decision making process of NHRC and not the process of investigation which commission may direct to be conducted. The exclusion of the category under consideration seems evident when seen as to who are included in the light of Paris principles, namely, representatives of non-governmental organizations responsible for human rights and efforts to combat racial discrimination, trade unions, concerned social and professional organizations, for example, associations of lawyers, doctors, journalists eminent scientists; trends in philosophical or religious thoughts; universities and qualified experts; and parliament. Regarding the Government departments, their representation in the deliberations is only in advisory capacity.

5. The scheme of the Act is to protect and implement human rights including those envisaged in Article 21 of the Constitution and International Covenants. The functions include understanding and dissemination of knowledge on human rights. The members referred in Section 3(2)(d) are required to have the knowledge and practical experience in matters relating to human rights of the type expected from those covered under Section 3(2)(a),(b) and (c). Section 7 provides that in the event of the occurrence of any vacancy in the office of the Chairperson, any one of the members may be authorized to act as the Chairperson until the appointment of a new Chairperson. The person to be appointed under Section 3(2)(d) should also be one who can act as a Chairperson under contingency contemplated by Section 7 of the Act.

6. The expertise in investigation cannot be confused with expertise in the matters relating to human rights. These two are entirely different. For investigation, police and investigating staff is available to the Commission. The Commission can also require any person to furnish information on such points or matters as may be useful for, or relevant to, the subject matter of inquiry. It may utilise services of any officer or investigating agency as stipulated in Section 14 of the Act for the purpose of conducting any investigation pertaining to the inquiry. The Central Government is required to make available to the Commission such police and investigating staff for the efficient performance of the functions of the Commission.

7. While construing the provisions of the statute, the object of the statute and the aspect of public perception cannot be altogether overlooked. The statute of the nature under consideration are based on public confidence. It cannot be overlooked that notwithstanding the exemplary role of police and security forces, there have been many instances of excesses by the members of the forces leading to public unrest and deteriorating public faith. The issue is not whether all are fully true or not but is what exists in the public mind and whether there is some justification.

8. An individual Police officer may be very good but his participation in decision making as a member of the Commission is likely to give rise to a reasonable apprehension in the minds of the citizens that he may sub-consciously influence the functioning of the Commission. Such reasonable perception of the affected parties are relevant considerations to ensure the continued public confidence in the credibility and impartiality of institution like NHRC.

9. Assuming two constructions of Section 3(2)(d) are reasonably possible, the construction which promotes public confidence, advances the cause of human rights and seeks to fulfill the purpose of international instruments has to be preferred than the one which nullifies it. Ambiguity, if any, in the statutory provision is required to be removed by judicial process to advance the cause of protection of human rights.

10. When a Police officer is a member of NHRC, the question to be asked is not to his bias but is the impression of a reasonable right minded person and the confidence the Commission would generate as a result of participation of a person of such a background.

11. Respondent No.2 has been a Police Officer throughout his service career. Assuming that he was a very efficient officer and investigated many cases including complicated and sensitive cases but what is relevant for the present purpose is the `sanskar', i.e., conscious or sub-conscious bias in favour of investigating agencies.

12. The question can also be examined from another angle. The knowledge or experience of a police officer of human rights violation, represents only one facet of human right violation and its protection, namely, arising out of crime. Human Right violations are of various forms which besides Police brutality is - gender injustice, pollution, environmental degradation, mal-nutrition, social ostracism of Dalits etc. Police officer can claim to have experience of only one facet. That is not the requirement of the section.

13. While construing any provision in domestic legislation which is ambiguous, in the sense that it is capable of more than one meaning, the meaning which conforms most closely to the provisions of any international instrument is to be preferred, in the absence of any domestic law to the contrary. In this view, Section 3(2)(d) is to be read keeping in view Paris Principles. Further, the proposal to appoint police officers on two earlier occasions was dropped when Chairperson of NHRC expressed his opinion against appointments of such persons. Thus, construing Section 3(2)(d) of the Act, police officer would be ineligible to be appointed as a member of NHRC.
14. The fact that the opinion of the Chairperson was sought on earlier two occasions would not tantamount to setting up of a convention requiring the Chairperson to be mandatorily consulted. The requirement of Section is not of `consultation' but of recommendation of the Committee. Since notice of the meeting had been given to Committee Members, it cannot be said that the recommendations of the Committee would stand vitiated as a result of non-participation. There is nothing to even suggest that any request for deferring the meeting was made. Undoubtedly, for meaningful and purposeful recommendation, there ought to be complete disclosure of relevant factors considering that the appointment is being recommended for a highly expert body in relation to protection of human rights. The members of the Committee were not informed that on earlier two occasions, the views of the Chairperson of the NHRC were asked and since the Chairperson was opposed to the appointment of a member of the force, the proposal was dropped.

Per D.M. Dharmadhikari, J:

1. The statutory provisions under Section (3)(2)(d) from its plain language, do no disqualify respondent No. 2 from holding the position of member of the NHRC.

2. Judges by the very nature of their office and duties, render them almost `cut off' from society. They lose touch with ground realities existing in the society. Their knowledge in matters relating to human rights is hearsay i.e. through the cases that happen to come before them in the law courts and which they get chance to deal and decide as judges in the seat of the court. Their lack of practical experience in the field of human rights is required to be supplemented by such members of the Commission who are either active in public life or directly dealing with the incidents and occurrences of violations of human rights. Such persons, as envisaged by use of a wide language in Section 3(2)(d), may include reputed Human Rights Activists or high ranking police officers who have acquired experience in investigation and prevention of human rights violations.

3. Human Rights violations, to a great extent, are crimes punishable under different kinds of Criminal Laws. Police Officers dealing with such crimes as investigators, as protectors of law or as preventors of such crimes cannot be held to be disqualified or considered unsuitable for membership of the Commission.

4. Public perception, of police as a force, can change only if the high ranking police officers with exemplary record of service and of of Section is not of `consultation' but of recommendation of the Committee. Since notice of the meeting had been given to Committee Members, it cannot be said that the recommendations of the Committee would stand vitiated as a result of non-participation. There is nothing to even suggest that any request for deferring the meeting was made. Undoubtedly, for meaningful and purposeful recommendation, there ought to be complete disclosure of relevant factors considering that the appointment is being recommended for a highly expert body in relation to protection of human rights. The members of the Committee were not informed that on earlier two occasions, the views of the Chairperson of the NHRC were asked and since the Chairperson was opposed to the appointment of a member of the force, the proposal was dropped.

6. Record of service of respondent no. 2 shows his knowledge and practical experience in matters relating to human rights. It is another thing to make a general statement that for membership under Section 3(2)(d), well-known human rights activists or members of the reputed NGOs who are actively involved in the field of human rights would have been better choices but the court is concerned only with the legality of the appointment and not the wisdom of the selection body. Merely because, a more suitable person ought to have been chosen is no ground to invalidate the appointment of respondent No. 2 who cannot be held to be disqualified under Section 3(2)(d).




SEARCH AND SEIZURE


In Radha Krishan vs. State of U.P. AIR 1963 SC 822, speaking for a three Judge Bench, Justice Mudholkar held : "So far as the alleged illegality of the search is concerned, it is sufficient to say that even assuming that the search was illegal and the seizure of the articles is not vitiated. It may be that where the provisions of Sections 103 and 165 of the Code of Criminal Procedure are contravened the search could be resisted by the person whose premises are being searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences, no further consequence ensues."

In a subsequent decision reported in Pooran Mal vs. Director of Inspection (1974) 1 SCC 354, Supreme Court held : "So far as India is concerned its law of evidence is modeled on the rules of evidence which prevailed in English Law, and Courts in India and in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure . It would thus be seen that in India, as in England, where the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search or seizure is not liable to shut out."

This decision was later followed in Dr. Pratap Singh vs. Director of Enforcement (1985) 3 SCC 72. The provisions contained in the Criminal Procedure Code relating to search and seizure are safeguards to prevent the clandestine use of powers conferred on the law enforcing authorities. They are powers incidental to the conduct of investigation and the legislature has imposed certain conditions for carrying out search and seizure in the Code. The courts have interpreted these provisions in different ways. One view is that disregard to the provisions of the Code of Criminal Procedure relating to the powers of search and seizures amounts to a default in doing what is enjoined by law and in order to prevent default in compliance with the provisions of the Code, the courts should take strict view of the matter and reject the evidence adduced on the basis of such illegal search. But often this creates a serious difficulty in the matter of proof. Though different High Courts have taken different views, the decisions of this Court quoted above have settled the position and we have followed the English decisions in this regard.

In the Privy Council decision in Kuruma v. The Queen (1955) A.C. 197, Lord Goddard, C.J. was of the firm view that in a criminal case the Judge always has a discretion to disallow evidence if the strict rule of admissibility would operate unfairly against an accused. The trend of judicial pronouncements is to the effect that evidence illegally or improperly obtained is not per se inadmissible. If the violation committed by the investigating authority is of serious nature and causes serious prejudice to the accused, such evidence may be excluded.




ASSETS BEYOND KNOWN SOURCES OF INCOME


AIR 2006 SC 1106, R. Janakiraman VS State of Tamil Nadu, through CBI,

1. Evidence Act, 1872: Section 92-Scope and ambit of-Criminal proceedings-Application of-Bar under-Held: Rule under S. 92 will apply only to the parties to the instrument or their successors-in-interest-Strangers to the contract (which would include the prosecution in a criminal proceeding) are not barred from establishing a contemporaneous oral agreement contradicting or varying the terms of the instrument-Therefore, bar under S. 92 will apply to a proceeding inter-parties to a document and not to a criminal proceeding.

2. The principles relating to Section 92 of the Evidence Act, 1872 are culled out as follows:-
(i) Section 92 is supplementary to Section 91 and corollary to the rule contained in Section 91.
(ii) The rule contained in section 92 will apply only to the parties to the instrument or their successors-in-interest. Strangers to the contract (which would include the prosecution in a criminal proceeding) are not barred from establishing a contemporaneous oral agreement contradicting or varying the terms of the instrument. On the other hand, Section 91 may apply to strangers also.
(iii) The bar under Section 92 would apply when a party to the instrument, relying on the instrument, seeks to prove that the terms of the transaction covered by the instrument are different from what is contained in the instrument. It will not apply where anyone, including a party to the instrument, seeks to establish that the transaction itself is different from what it purports to be. To put it differently, the bar is to oral evidence to disprove the terms of a contract, and not to disprove the contract itself, or to prove that the document was not intended to be acted upon and that intention was totally different.

3. Applying the aforesaid principles, it is clear that the bar under Section 92 will apply to a proceeding inter-parties to a document and not to a criminal proceeding, where the prosecution is trying to prove that a particular document or set of documents are fictitious documents created to offer an explanation for disproportionate wealth. Oral evidence can always be led to show that a transaction under a particular document or set of documents is sham or fictitious or nominal, not intended to be acted upon.

4. The contention that a statement under Section 164 of the Code of Criminal Procedure, 1973 of an accomplice/co-accused cannot be used as evidence against an accused, on the facts of this case, is rather misleading. It is no doubt well settled that in dealing with a case against an accused person, the Court cannot start with the confession of a co-accused and it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of such evidence, it is permissible to turn to the confession in order to lend support or assurance to the conclusion of guilt which the court is about to reach on the other evidence.

5. The appellant submitted that he had received a certain sum as travelling allowance (TA) during the check period and the said amount should be taken under the head of receipt/income during that period. The prosecution would not be justified in concluding that the travelling allowance was also a source of income (for the purpose of ascertaining the income from known sources during the check period) as such allowance is ordinarily meant to compensate the officer concerned for his out-of-pocket expenses incidental to the journeys performed by him for his official tour/s. As travelling allowance is not a source of income to the Government servant but only a compensation to meet his expenses, the prosecution while calculating the sources of income during the check period, need not take it into account as income. However, it is open to the Government servant to let in evidence to show that he had in fact saved something out of the travelling allowance. It is for the court then to accept or not whether there was such actual saving. But the question of automatically considering the entire travelling allowance as a source of income does not arise. In this case, as the appellant did not lead any specific evidence to show that he had made any savings from out of the travelling allowance, the claim for inclusion of TA in income, is untenable.

DSP CHENNAI VS K.INBASAGARAN AIR 2006 SC 552, when the accused has come forward with the plea that all the money which has been recovered from his house and purchase of real estate or the recovery of the gold and other deposits in the Bank, all have been owned by his wife, then in that situation how can all these recoveries of unaccounted money could be laid in his hands. The question is when the accused has provided satisfactorily explanation that all the money belonged to his wife and she has owned it and the Income-tax Department has assessed in her hand, then in that case, whether he could be charged under the Prevention of Corruption Act. It is true that when there is joint possession between the wife and husband, or father and son and if some of the members of the family are involved in amassing illegal wealth, then unless there is categorical evidence to believe, that this can be read in the hands of the husband or as the case may be, it cannot be fastened on the husband or head of family. It is true that the prosecution in the present case has tried its best to lead the evidence to show that all these moneys belonged to the accused but when the wife has fully owned the entire money and the other wealth earned by her by not showing in the Income-tax return and she has accepted the whole responsibilities, in that case, it is very difficult to hold the accused guilty of the charge. It is very difficult to segregate that how much of wealth belonged to the husband and how much belonged to the wife. The prosecution has not been able to lead evidence to establish that some of the money could be held in the hands of the accused. In case of joint possession it is very difficult when one of the persons accepted the entire responsibility. The wife of the accused has not been prosecuted and it is only the husband who has been charged being the public servant. In view of the explanation given by the husband and when it has been substantiated by the evidence of the wife, the other witnesses who have been produced on behalf of the accused coupled with the fact that the entire money has been treated in the hands of the wife and she has owned it and she has been assessed by the Income-tax Department, it will not be proper to hold the accused guilty under the prevention of Corruption Act as his explanation appears to be plausible and justifiable.

There is no two opinion in the matter that the initial burden lies on the prosecution. In the case of C.S.D.Swami v. The State reported in AIR 1960 SC 7, this Court has taken the view that in Section 5(3) of the Prevention of Corruption Act, 1947 a complete departure has made from the criminal jurisprudence still initial burden lies on the prosecution and in that context it has been observed as follows : " Section 5 (3) does not create a new offence but only lays down a rule of evidence, enabling the court to raise a presumption of guilt in certain circumstances- a rule which is a complete departure from the established principle of criminal jurisprudence that the burden always lies on the prosecution to prove all the ingredients of the offence charged, and that the burden never shifts on to the accused to disprove the charge framed against him. Therefore, the initial burden was on the prosecution to establish whether the accused has acquired the property disproportionate to his known source of income or not. But at the same time it has been held in a case of State of M.P. Vs. Awadh Kishore Gupta and Others reported in (2004) 1 SCC 691 that accused has to account satisfactorily the money received in his hand and satisfy the court that his explanation was worthy of acceptance.





INTENTION TO CAUSE DEATH



AIR 2006 SC 3010, Pulicherla Nagaraju @ Nagaraja Reddy VS State of A.P.

The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances;
(i) nature of the weapon used;
(ii) whether the weapon was carried by the accused or was picked up from the spot;
(iii) whether the blow is aimed at a vital part of the body;
(iv) the amount of force employed in causing injury;
(v) whether the act was in the course of a sudden quarrel or sudden fight or free for all fight;
(vi) whether the incident occurs by chance or whether there was any pre-meditation;
(vii) whether there was any prior enmity or whether the deceased was a stranger;
(viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation;
(ix) whether it was in the heat of passion;
(x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner;
(xi) whether the accused dealt a single blow or several blows.




DYING DECLARATION



Supreme Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Smt. Paniben v. State of Gujarat (AIR 1992 SC 1817):

(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [See Munnu Raja & Anr. v. The State of Madhya Pradesh (1976) 2 SCR 764)]
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [See State of Uttar Pradesh v. Ram Sagar Yadav and Ors. (AIR 1985 SC 416) and Ramavati Devi v. State of Bihar (AIR 1983 SC 164)]
(iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [See K. Ramachandra Reddy and Anr. v. The Public Prosecutor (AIR 1976 SC 1994)]
(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. [See Rasheed Beg v. State of Madhya Pradesh (1974 (4) SCC 264)]
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [See Kaka Singh v State of M.P. (AIR 1982 SC 1021)]
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [See Ram Manorath and Ors. v. State of U.P. (1981 (2) SCC 654)
(vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. [See State of Maharashtra v. Krishnamurthi Laxmipati Naidu (AIR 1981 SC 617)]
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [See Surajdeo Oza and Ors. v. State of Bihar (AIR 1979 SC 1505).
(ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See Nanahau Ram and Anr. v. State of Madhya Pradesh (AIR 1988 SC 912)].
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [See State of U.P. v. Madan Mohan and Ors. (AIR 1989 SC 1519)].
(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. [See Mohanlal Gangaram Gehani v.State of Maharashtra (AIR 1982 SC 839)]."




PRESUMPTION OF LAW AND FACT


Because both Sections 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras vs. A. Vaidyanatha Iyer AIR 1958 SC 61, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. "It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused". Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. In other words, provided the facts required to form the basis of a presumption of law exists, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists" . Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'. Judicial statements have differed as to the quantum of rebutting evidence required.

In Kundan Lal Rallaram vs Custodian, Evacuee Property, Bombay AIR 1961 SC 1316, Supreme Court held that the presumption of law under Section 118 of Negotiable Instruments Act could be rebutted, in certain circumstances, by a presumption of fact raised under Section 114 of the Evidence Act. The decision must be limited to the facts of that case. The more authoritative view has been laid down in the subsequent decision of the Constitution Bench in Dhanvantrai Balwantrai Desai vs State of Maharashtra AIR 1964 SC 575, where this Court reiterated the principle enunciated in State of Madras vs Vaidyanath Iyer (Supra) and clarified that the distinction between the two kinds of presumption lay not only in the mandate to the Court, but also in the nature of evidence required to rebut the two. In the case of a discretionary presumption the presumption if drawn may be rebutted by an explanation which "might reasonably be true and which is consistent with the innocence" of the accused. On the other hand in the case of a mandatory presumption "the burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under S.114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted......"



Gopal Vs State of Rajasthan , JUDGME NT, Dated February 13, 2009, Dr. ARIJIT PASAYAT, J, Prosecution case was that wife died 22 years after the marriage. The cause of death was asphyxia, due to opium poisoning and there were 6 bruises on the body. FIR was registered against the appellant-husband u/ss.498A & 306 IPC for beating his wife and treating her with cruelty. Trial court acquitted the appellant as prosecution case was not proved. High Court upheld acquittal u/s.306 but convicted u/s.498A. Hence the present appeal. HELD: Section 498A IPC has two limbs. The first limb of s. 498A provides that whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished. `Cruelty' has been defined in clause (a) of the Explanation to the said Section as any wilful conduct which is of such a nature as is likely to drive a woman to commit suicide. When there is demand of dowry, the case comes under clause (b) of the Explanation to s. 498A. Clause (a) of the Explanation has definite application to the facts of the instant case. The effect of s. 113 A of the Evidence Act cannot be lost sight of. As per s.113 A when the question as to whether commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume that such suicide had been abetted by her husband or by such relative of her husband. This has not been rebutted by the appellants. For bringing in application of s. 306 IPC, suicide has to be established. In the instant case, the trial court and the High Court have categorically held that no suicide has been established. So far as
s.498-A(b) is concerned, there must be an evidence of demand of dowry. There is no evidence in that regard adduced by the prosecution. That being so, s. 498 A(b) has no application. As regard conviction of appellant u/s.323 IPC, said question is not gone into considering the fact that the appellant has already suffered custody of about 6 months.





DOWRY DEATH AND PRESUMPTION



Prem Kanwar Vs State of Rajasthan 2009(1 )SCALE 230, s. 113B - Dowry death – Essential ingredients to raise presumption under s. 113-B - Held: Is that the concerned woman 'soon before her death' was subjected to cruelty or harassment 'for or in connection with the demand of dowry' - 'Soon before' is a relative term - It depends upon the facts and circumstances of the case - No strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence - There must be existence of proximate and live link between the effect of cruelty on dowry demand and death.

Dowry Prohibition Act, 1961: ss. 2, 3 and 4 - Dowry - Meaning of - Held: Dowry includes not only the period before marriage but also the period subsequent to the marriage - Demand of dowry refers to the demand of property or valuable security - Even demand of dowry on other ingredients being satisfied is punishable - It is not always necessary that there be any agreement for dowry

It was the case of the father of the deceased that the appellant-deceased's mother-in-law, her husband and uncle used to torture, harass and humiliate her for not bringing sufficient dowry. Within four years of marriage, the deceased was killed by burning. FIR was registered. Investigation was carried out. The doctor opined that the cause of death of the deceased was asphyxia due to ante-mortem injuries. Accused were tried u/s. 306 and 304-B IPC and s. 4 of the Dowry Prohibition Act, 1961. Trial court acquitted the accused holding it to be a case of suicide. However, High Court convicted them as case of suicide was not established; and there was evidence of murder of deceased before her burning. Hence the present appeal.

Supreme Court, HELD:

1. The explanation to s. 304 B IPC refers to dowry 'as having the same meaning as in s. 2 of the Dowry Prohibition Act, 1961'. The definition by amendment includes not only the period before marriage but also the period subsequent to the marriage. Demand neither conceives nor would conceive of any agreement. If for convicting any offender, agreement for dowry is to be proved, hardly any offenders would come under the clutches of law. When Section 304-B refers to 'demand of dowry', it refers to the demand of property or valuable security as referred to in the definition of 'dowry' under the Act. In cases of dowry deaths and suicides, circumstantial evidence plays an important role and inferences can be drawn on the basis of such evidence. That could be either direct or indirect. It is significant that Section 4 of the Act, was also amended by means of Act 63 of 1984, under which it is an offence to demand dowry directly or indirectly from the parents or other relatives or guardian of a bride. The word 'agreement' referred to in Section 2 has to be inferred on the facts and circumstances of each case. The argument that there has to be an agreement at the time of the marriage in view of the words 'agreed to be given' occurring therein, and in the absence of any such evidence it would not constitute to be a dowry, is misconceived. This would be contrary to the mandate and object of the Act. 'Dowry' definition is to be interpreted with the other provisions of the Act including Section 3, which refers to giving or taking dowry and Section 4 which deals with a penalty for demanding dowry, under the Act and the IPC. This makes it clear that even demand of dowry on other ingredients being satisfied is punishable. It is not always necessary that there be any agreement for dowry. The offence alleged against the accused is under Section 304-B IPC which makes 'demand of dowry' itself punishable. The argument that there is no demand of dowry, in instant case, has no force.

2. As per the definition of 'dowry death' in Section 304-B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been "soon before her death" subjected to cruelty or harassment "for or in connection with the demand of dowry". Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death.

3. The presumption shall be raised only on proof of the following essentials: (1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC). (2) The woman was subjected to cruelty or harassment by her husband or his relatives. (3) Such cruelty or harassment was for, or in connection with any demand for dowry. (4) Such cruelty or harassment was soon before her death.

4. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring otherwise than in normal circumstances'. The expression 'soon before' is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. 'Soon before' is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression 'soon before her death' used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression 'soon before' is not defined. A reference to expression 'soon before' used in Section 114. Illustration (a) of the Evidence Act is relevant. The determination of the period which can come within the term 'soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.

5. The doctors opined that cause of death of the deceased was Asphyxia due to ante mortem burns. He has proved the post mortem report. Thus, from the post mortem report and by the statement of PW-6, the fact that deceased died because of burns is very well established and at the time of post mortem of the dead body of the deceased, her skull bones were found broken. In the case of burning the fracture of skull is not a necessary corollary. Therefore, the fact remains that she was killed before death. Therefore, the High Court was justified in holding that the Sessions Judge erroneously concluded that it was a case of suicide.

6. PW-7 is an independent witness who is neighbour of the accused. His evidence is of considerable importance. According to him, while he was standing at the place where the deceased was burning the witness told R for extinguishing the fire upon which the appellant said that the deceased has been burnt and let her burn and it is no use extinguishing the fire. This statement has been rightly highlighted by the High Court to show that her role as alleged by the prosecution has been established.

7. The evidence of PWs 1, 2, 3, 4 and 5 clearly shows the greed of the accused who was persistently taunting and harassing the deceased for not having brought sufficient dowry. Therefore, the High Court was justified in upsetting the order of acquittal passed by the trial court and directing her conviction.




POWER OF TRIAL COURT TO PROCEED AGAINST OTHER PERSONS APPEARING TO BE GUILTY OF OFFENCE


BRINDABAN DAS AND OTHERS ...APPELLANTS VS. STATE OF WEST BENGAL 2009(1) SCALE 424 , 2009(1 )JT181

CODE OF CRIMINAL PROCEDURE, 1973: s.319 - Power of trial court to proceed against other persons appearing to be guilty of offence - Persons not named in FIR, nor mentioned in charge- sheet, nor sent up for trial, but after two years of their discharge from the case, trial court issuing warrants of arrest against them - Held: In order to invoke power u/s 319, court is not merely required to take note of the fact that name of a person has surfaced during trial but it has also to consider whether the evidence would be sufficient to convict him - In the instant case, on the evidence adduced as regards the persons summoned u/s 319, it cannot be said with any amount of certainty that the same would in all probability secure conviction against them - Order of trial court issuing warrants of arrest, and of High Court staying execution of warrants and directing the addresees to surrender and then seek bail are set aside. An F.I.R. alleging murder of the father of the complainant was lodged on 29.11.2002 on the allegations that besides the assailant several other persons could have been behind the incident. The appellants applied for and were granted bail. The appellants were neither shown in the charge-sheet nor were they sent up for trial, on the other hand, by an order dated 30.6.2004, they were discharged from the case. Later, on an application filed u/s 319 Cr.P.C by the complainant, the trial court, on 22.6.2006, issued warrants of arrest against the appellants for their alleged refusal to receive summons which had been issued to them earlier u/s 319 Cr.P.C. The High Court in its revisional jurisdiction stayed execution of the warrants holding that there was no willful defiance of the summons to necessitate issuance of warrants, and directed the appellants to surrender before the court within three weeks and thereafter to apply for bail. In the instant appeal, it was contended for the appellants that there was no direct evidence against them which could have formed the basis for issuance of summons u/s 319 Cr.P.C. and the entire case was hear-say in nature, that the trial court ought not to have issued summons u/s 319 Cr.P.C. without recording satisfaction as to the sufficiency of evidence on record for securing conviction against the appellants.

Allowing the appeal, the Court HELD:

1. In matters relating to invocation of powers u/s 319 Cr.P.C., the Court is not merely required to take note of the fact that the name of a person who has not been named as an accused in the F.I.R. has surfaced during the trial, but it has also to consider whether such evidence would be sufficient to convict the person being summoned. Since issuance of summons u/s 319 Cr.P.C. entails a denovo trial and a large number of witnesses may have to be examined and their re-examination could prejudice the prosecution and delay the trial, the trial court has to exercise such discretion with great care and perspicacity.

2. The power u/s 319 Cr.P.C. is to be invoked, not as a matter of course, but in circumstances where the invocation of such power is imperative to meet the ends of justice. The fulcrum on which the invocation of Section 319 Cr.P.C. rests is whether the summoning of persons other than the named accused would make such a difference to the prosecution as would enable it not only to prove its case but also to secure conviction of the persons summoned.


3. In the instant case, on the quality of the evidence adduced by the prosecution as far as the appellants are concerned, it is difficult to hold with any amount of certainty that the same would in all probability secure a conviction against the appellants. The evidence which seeks to connect the appellants with the commission of the offence are hearsay in nature. Except for a statement in the F.I.R. that the complainant strongly believed that the murder of her father was pre-planned and there were many conspirators involved, there is no direct evidence of complicity of the appellants in the incident and, therefore, it would not be proper to subject them to trial by invoking the provisions of s. 319 Cr.P.C. The order passed by the trial court issuing summons to the appellants u/s 319 Cr.P.C. and the order of the High Court directing them to surrender before the trial court and to apply for bail are set aside.



Lal Suraj @ Suraj Singh & Anr. Versus State of Jharkhand 2008(16 )SCALE276 , 18-12-2008

Code of Criminal Procedure, 1973 - s. 319 - Summoning of other persons appearing to be guilty of offence under - The question which arose for consideration in this appeal was whether the courts below relying on evidence of prosecution witnesses were justified in allowing the application for summoning the appellants in exercise of his power u/s. 319 of the Code of Criminal Procedure, 1973.


Allowing the appeal, the Supreme Court HELD:

1. Section 319 Cr.P.C. is a special provision. It seeks to meet an extraordinary situation. It although confers a power of wide amplitude but is required to be exercised very sparingly. Before an order summoning an accused is passed, the trial court must form an opinion on the basis of the evidences brought before it that a case has been made out that such person could be tried together with the other accused. Even if a person had not been charge sheeted, he may come within the purview of the description of such a person as contained in s. 319 of the Code.

2. The principle of strong suspicion may be a criterion at the stage of framing of charge as all the materials brought during investigation were required to be taken into consideration, but, for the purpose of summoning a person, who did not figure as accused, a different legal principle is required to be applied. A court framing a charge would have before it all the materials on record which were required to be proved by the prosecution. In a case where, however, the court exercises its jurisdiction under Section 319 of the Code, the power has to be exercised on the basis of the fresh evidence brought before the court. There lies a fine but clear distinction.

3. The prosecution concededly did not file any charge sheet against the appellants. Even in the First Information Report only the appellant No. 1 was named. The case was committed to the Court of Sessions. There cannot be any doubt or dispute that although a person named in the First Information Report or another who was found to be involved in the commission of the offence may be summoned at a subsequent stage by the trial judge, legality of an order summoning such an accused, however, would depend on the nature of evidence brought on record by the prosecution witnesses and other relevant factors.

4. The Sessions Judge as also the High Court relied upon the deposition of PW-6 and PW-7. PW-6 is not an eye-witness to the occurrence. PW-7 is only hearsay witness. No evidence worth the name had been brought on record to arrive at a satisfaction that there was a reasonable prospect of conviction of the appellants. The approach of the Sessions Judge was wholly incorrect.

5. Applying the legal principles to the fact of the case, Sessions Judge as also the High Court committed a serious error in passing the impugned judgment. On the basis of the aforementioned evidence, there was no possibility of recording a judgment of conviction against the appellants at all. Thus, the impugned order are set aside.





POWERS OF APPELLATE COURTS



GHUREY LAL VERSUS STATE OF U.P. 2008(10 )SCC450 , Code of Criminal Procedure, 1973: Chapter XXX - Appeals - Powers of appellate courts - Appellate courts have wide and extensive powers of re-appreciating and re-evaluating the entire evidence, but the same must be used with great care and caution - Principles emerging from decisions of Supreme Court culled out. Appellate court would be justified in interfering with judgment of acquittal only when the same is palpably wrong, totally ill-founded or wholly misconceived, based on erroneous analysis of evidence and non-existent material, demonstrably unsustainable or perverse - Judgment of trial Court analyzing the infirmities in prosecution case acquitting accused of the charge u/s 302 IPC giving him benefit of doubt, is correct and is based on the fundamental principles of criminal jurisprudence

The appellate court undoubtedly has wide and extensive powers of re-appreciating and re-evaluating the entire evidence, but the same must be used with great care and caution. The appellate court would be justified in interfering with the judgment of acquittal only when the same is palpably wrong, totally ill-founded or wholly misconceived, based on erroneous analysis of evidence and non-existent material, demonstrably unsustainable or perverse.

On marshalling the entire evidence and the documents on record, the view taken by the trial court is certainly a possible and plausible view. The settled legal position is that if the trial court's view is possible and plausible, the High Court should not substitute the same by its own possible views. The difference in treatment of the case by two courts below is particularly noticeable in the manner in which they have dealt with the prosecution evidence. While the trial court took great pains in discussing all important material aspects and to record its opinion on every material and relevant point, the High Court has reversed the judgment of the trial court without placing the very substantial reasons in support of its conclusion. The trial court after marshalling the evidence on record came to the conclusion that there were serious infirmities in the prosecution story. The findings of the trial court are based on the fundamental principles of the criminal jurisprudence. The trial court carefully scrutinized the entire evidence and documents on record and arrived at the correct conclusion, and following the settled principles of law, it gave the benefit of doubt to the accused. The High Court totally ignored the settled legal position and the reasoning given by it for overturning the judgment of the trial court is wholly unsustainable.

The trial court categorically came to the finding that when the substratum of the evidence of the prosecution witnesses was false, then the prosecution case has to be discarded. When the trial court finds serious infirmities in the prosecution version, then the trial court was virtually left with no choice but to give benefit of doubt to the accused according to the settled principles of criminal jurisprudence. The trial court has the advantage of watching the demeanour of the witnesses who have given evidence; therefore, the appellate court should be slow to interfere with the decisions of the trial court. An acquittal by the trial court should not be interfered with unless it is totally perverse or wholly unsustainable.

As regards the powers of the appellate court, the following principles emerge from the cases decided by this Court:
(a) The appellate court may review the evidence in appeals against acquittal under sections 378 and 386 of the Code of Criminal Procedure 1973. Its power of reviewing evidence is wide; it can re-appreciate the entire evidence on record; it can review the trial court's conclusion with respect to both facts and law.
(b) The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.
(c) Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that trial court was wrong.

The High Courts and other appellate courts should follow the well settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the order of acquittal passed by the trial court.

(a) The appellate court may reverse or otherwise disturb the order of acquittal passed by trial court only if it has "very substantial and compelling reasons" for doing so. A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision.

"Very substantial and compelling reasons" exist when:
i) the trial court's conclusion with regard to the facts is palpably wrong;
ii) the trial court's decision was based on an erroneous view of law;
iii) the trial court's judgment is likely to result in "grave miscarriage of justice";
iv) the entire approach of the trial court in dealing with the evidence was patently illegal;
v) the trial court's judgment was manifestly unjust and unreasonable;
vi) the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/ report of the Ballistic Expert, etc. This list is intended to be illustrative, not exhaustive.

(b) The appellate court must always give proper weight and consideration to the findings of the trial court.
(c) If two reasonable views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.




POWERS OF HIGH COURT TO QUASH PROCEEDINGS



SCOPE OF SECTION 482

The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335]. A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of the rare cases. The illustrative categories indicated by this Court are as follows:
"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7)Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceedings instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceedings. These aspects were also highlighted in State of Karnataka v. M. Devendrappa [ 2002(3) SCC 89].


BHARAT PARIKH VS. C.B.I. & ANR. 2008(10 )SCC109 , Code of Criminal Procedure, 1973: ss. 207, 227 and 482 - Prayer of accused for discharge after charges were framed - HELD: At the stage of framing the charge roving and fishing inquiry is impermissible and submissions of accused have to be confined to the material produced by investigating agency - Documents subsequently filed cannot be relied upon to re-open the proceedings once charge has been framed or for invocation of power of High Court u/s 482. In the instant appeal arising out of rejection of accused's application seeking to reopen the proceedings and his discharge after the charges had been framed, the questions for consideration before the Court were: (i) whether having framed charges against an accused, a Magistrate has the jurisdiction in law to recall such order on the ground that the prosecution had failed to comply with the provisions of Section 207 of the Code of Criminal Procedure" and (ii) whether in exercise of its inherent powers, the High Court could quash the charges framed and acquit the accused on account of such non-compliance with the provisions of Sections 207 and 238 of the Code

While framing charges, the trial court can only look into the materials produced by the prosecution while giving an opportunity to the accused to show that the said materials were insufficient for the purpose of framing charge.

The question of discharge by the Magistrate after framing of charge does not, therefore, arise, notwithstanding the submissions advanced with regard to denial of natural justice and a fair and speedy trial as contemplated under Article 21 of the Constitution, which have no application whatsoever to the facts of the instant case.

With regard to the High Court's powers to look into materials produced on behalf of or at the instance of the accused for the purpose of invoking its powers under Section 482 of the Code for quashing the charges framed, it has to be kept in mind that after the stage of framing charge, evidence has to be led on behalf of the prosecution to prove the charge if an accused pleads not guilty to the charge and claims to be tried. It is only in the exceptional circumstances that criminal proceedings may be quashed to secure the ends of justice, but such a stage will come only after evidence is led, particularly, when the prosecution has produced sufficient material for charges to be framed.

At the stage of framing charge roving and fishing inquiry is impermissible and a mini trial cannot be conducted at such stage; and submissions on behalf of the accused have to be confined to the material produced by the investigating agency. The accused will get an opportunity to prove the documents subsequently produced by the prosecution on the order of the Court, but the same cannot be relied upon to re-open the proceedings once charge has been framed or for invocation of the High Court's powers under Section 482 of the Code.




RAREST OF RARE CASE



The test of rarest of rare case was laid down by this Court for the first time in the case of Bachan Singh v. State of Punjab reported in 1980 (2) SCC 684. Thereafter the same was reiterated in Machhi Singh & Ors. Vs. State of Punjab reported in 1983 (3) SCC 470. The test laid down adopted the following five considerations:-
"(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.
(2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward; or cold- blooded murder for gains of a persons vis-a vis whom the murderer is in dominating position or in a position of trust; or murder is committed in the course of betrayal of the motherland.
(3) When murder of a member of a Scheduled Caste or minority community etc. is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of `bride burning' or `dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infactuation.
(4) When the crime is enormous in proportion. For instance, when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community or locality are committed.
(5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community."

The findings of the rarest of rare case would have to be judged in the light of the circumstances brought about and proved by the prosecution. This Court in Om Prakash v. State of Haryana reported in 1999 (3) SCC 19, while dealing with the accused who had committed seven murders, observed as under: "17. Considering the aforesaid background of the matter, the question would be whether the case of the appellant could be one of the "rarest of the rare" cases so that death sentence is required to be imposed. In our view, even though this is a gruesome act on the part of the appellant, yet it is a result of human mind going astray because of constant harassment of the family members of the appellant as narrated above. It could be termed as a case of retribution or act for taking revenge. No doubt, it would not be a justifiable act at all, but the accused was feeling morally justifiable on his part. Hence, it would be difficult to term it as the "rarest of the rare" cases. Further this is not a crime committed because of lust for wealth or women, that is to say, murders are neither for money such as extortion, dacoity or robbery; nor even for lust and rape; it is not an act of anti-social element kidnapping and trafficking in minor girls or of an anti-social element dealing in dangerous drugs which affects the entire moral fibre of the society and kills number of persons; nor is it crime committed for power or political ambitions or part of organized criminal activities. It is a crime committed by the accused who had a cause to feel aggrieved for injustice meted out to his family members at the hands of the family of the other party who according to him were strong enough physically as well as economically and having influence with the authority which was required to protect him and his family. The bitterness increased to a boiling point and because of the agony suffered by him and his family members at the hands of the other party and for not getting protection from the police officers concerned or total inaction despite repeated written prayers goaded or compelled the accused to take law in his own hands which culminated in gruesome murders; may be that his mind got derailed of the track and went astray or beyond control because of extreme mental disturbances for the constant harassment and disputes. Further considering the facts and circumstances, it cannot be said that he would be menace to the society; there is no reason to believe that he cannot be reformed or rehabilitate and that he is likely to continue criminal acts of violence as would constitute as continuing threat to the society. He was working in BSF as a disciplined member of the armed forces aged about 23 at the relevant time, having no criminal antecedents."


Where the death sentence awarded by the Trial and the Appellate Court was confirmed by Supreme Court.

(I) MAHESH S/O RAM NARAIN & ORS. VS. STATE OF MADHYA PRADESH REPORTED IN 1987 (3) SCC 80.
(II) SEVAKA PERUMAL & ORS. VS. STATE OF TAMIL NADU REPORTED IN 1991 (3) SCC 471.
(III) JAI KUMAR VS. STATE OF MADHYA PRADESH REPORTED IN 1999 (5) SCC 1.
(IV) RAMDEO CHAUHAN ALIAS RAJNATH CHAUHAN VS. STATE OF ASSAM REPORTED IN 2007 (7) SCC 455
(V) SURESH & ANR. VS. STATE OF UTTAR PRADESH ETC. REPORTED IN 2001 (3) SCC 673.
(VI) KRISHNA MOCHI & ORS. VS. STATE OF BIHAR ETC. REPORTED IN 2001 (6) SCC 81.
(VII) OM PRAKASH @ RAJU VS. STATE OF UTTARANCHAL REPORTED IN 2003 (1) SCC 648.
(VIII) GURDEV SINGH & ANR. VS. STATE OF PUNJAB ETC. REPORTED IN 2003 (7) SCC 258.
(IX) PRAVEEN KUMAR VS. STATE OF KARNATAKA REPORTED IN 2003 (12) SCC 199.
(X) HOLIRAM BORDOLOGI VS. STATE OF ASSAM REPORTED IN 2005 (3) SCC 793.
(XI) UNION OF INDIA & ORS. VS. DEVENDRA NATH RAI REPORTED IN 2006 (2) SCC 243.
(XII) BABU @ MUBARIK HUSSAIN VS. STATE OF RAJASTHAN REPORTED IN 2006 (13) SCC 116.
(XIII) RAM SINGH VS. SONIA & ORS. REPORTED IN 2007 (3) SCC 1.
(XIV) SHIVU & ANR. VS. REGISTRAR GENERAL, H.C. OF KAR & ANR. REPORTED IN 2007 (4) SCC 713.
(XV) PRAJEET KUMAR SINGH VS. STATE OF BIHAR REPORTED IN 2008 (4) SCC 434.
(XVI) MOHAN ANNA CHAVAN VS. STATE OF MAHARASHTRA REPORTED IN 2008 (7) SCC 561.




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