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SUPREME COURT GIVES WORDS OF CAUTION TO HIGH COURTS IN QUASHING CRIMINAL PROCEEDINGS


SUPREME COURT RECENTLY IN ONE OF THE CLASSIC DECISION HAS COLLECTED BELOW DECISIONS AND REMINDED HIGH COURTS:-   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].
 
 Supreme Court in Pepsi Foods Ltd. & Anr. Vs.  Special Judicial Magistrate & Ors. [(1998)5 SCC 749  held:  "Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to  examine the nature of allegations made in  the complaint and the evidence both oral and documentary in support thereof and would  that be sufficient for the complainant to  succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of  the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

Supreme  Court again in Janata Dal v. H. S. Chowdhary &  Others (1992) 4 SCC 305 observed that in what  circumstances the inherent powers should be exercised:-  "The criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plentitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles."

The decision in Central Bureau of Investigation, SPE,  SIU(X), New Delhi v. Duncans Agro Industries Ltd.,  Calcutta (1996) 5 SCC 591 The court observed that for the  purpose of quashing the complaint, it is necessary to consider  whether the allegations in the complaint prima facie make out  an offence or not. It is not necessary to scrutinize the  allegations for the purpose of deciding whether such allegations are likely to be upheld in the trial. Any action by  way of quashing the complaint is an action to be taken at the  threshold before evidences are led in support of the complaint.  For quashing the complaint by way of action at the threshold,  it is, therefore, necessary to consider whether on the face of the allegations incorporated in a complaint or F.I.R., a  criminal offence is constituted or not.

In B.S. Joshi & Others v. State of Haryana &  Another (2003) 4 SCC 675 the court reiterated the legal  position that the court's inherent powers have no limit but  should be exercised with utmost care and caution. Inherent powers must be utilized with the sole purpose to prevent the abuse of the process of the court or to otherwise secure the  ends of justice. In exercise of inherent powers, proper  scrutiny of facts and circumstances of concerned case are  absolutely imperative.

 In Jagdish Chanana & Others v. State of Haryana &  Another 2008 (4) Scale 411 Supreme court observed as under:-  "The fact that a compromise has indeed been recorded is admitted by all sides and in terms of the compromise the disputes which are purely personal in nature and arise out of commercial transactions, have been settled in terms of the compromise with one of the terms of the compromise being that proceedings pending in court may be withdrawn or compromised or quashed, as the case may be. In the light of the compromise, it is unlikely that the prosecution will succeed in the matter. We also see that the dispute is a purely personal one and no public policy is involved in the transaction that had been entered into between the parties. To continue with the proceedings, therefore, would be a futile exercise."

In Madan Mohan Abbot v. State of Punjab (2008) 4  SCC 582  observed as under:- "We need to emphasise that it is perhaps advisable that in disputes where the question involved is of a purely personal nature, the court should ordinarily accept the terms of the compromise even in criminal proceedings as keeping the matter alive with no possibility of a result in favour of the prosecution is a luxury which the courts, grossly overburdened as they are, cannot afford and that the time so saved can be utilized in deciding more effective and meaningful litigation. This is a common sense approach to the matter based on ground of realities and bereft of the technicalities of the law."

Raghubir Saran (Dr) v. State of Bihar [AIR 1964 SC 1]. 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 a proceeding 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 court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings."

Recently in R. Kalyani vs. Janak C. Mehta & Ors. [(2009) 1 SCC 516], this Court opined: "Propositions of law which emerge from the said decisions are:
(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.

(2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.

(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.

(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.

In Hira Lal Hari Lal Bhagwati v. CBI [(2003) 5 SCC 257],  Court held : "It is settled law, by a catena of decisions, that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. From his making failure to keep promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed. It is seen from the records that the exemption certificate contained necessary conditions which were required to be complied with after importation of the machine. Since the GCS could not comply with it, therefore, it rightly paid the necessary duties without taking advantage of the exemption certificate. The conduct of the GCS clearly indicates that there was no fraudulent or dishonest intention of either the GCS or the appellants in their capacities as office-bearers right at the time of making application for exemption."

In Vir Prakash Sharma v. Anil Kumar Agarwal [(2007) 7 SCC 373], noticing, inter alia, the aforementioned decision, this Court held: "The dispute between the parties herein is essentially a civil dispute. Non-payment or underpayment of the price of the goods by itself does not amount to commission of an offence of cheating or criminal breach of trust. No offence, having regard to the definition of criminal breach of trust contained in Section 405 of the Penal Code can be said to have been made out in the instant case."

Supreme Court in the case of Indian Oil Corpn. v. NEPC India Ltd.,  (2006) 6 SCC 736, at page 747 has observed as under :  "The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few--Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, State of Haryana v. Bhajan Lal, Rupan Deol Bajaj v. Kanwar Pal Singh Gill, Central Bureau of Investigation v. Duncans Agro Industries Ltd., State of Bihar v. Rajendra Agrawalla, Rajesh Bajaj v. State NCT of Delhi, Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd., Hridaya Ranjan Prasad Verma v. State of Bihar, M. Krishnan v. Vijay Singh and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque.. The principles, relevant to our purpose are:

(i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused.  For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint. 

(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.     

(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.

(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.

(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not."

Supreme Court has recently in R. Kalyani v. Janak C. Mehta and  Others, (2009) 1 SCC 516, observed as follows:  "15. Propositions of law which emerge from the said decisions are:

(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.    

(2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.

(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.

(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.

 

In Chandrapal Singh & Others v. Maharaj Singh &  Another (1982) 1 SCC 466, in a landlord and tenant matter  where criminal proceedings had been initiated, this Court  observed in para 1 at page 467 as under:-  "A frustrated landlord after having met his waterloo in the hierarchy of civil courts, has further enmeshed the tenant in a frivolous criminal prosecution which prima facie appears to be an abuse of the process of law. The facts when stated are so telling that the further discussion may appear to be superfluous."

In G. Sagar Suri & Another v. State of UP & Others  (2000) 2 SCC 636,  court observed that it is the duty and  obligation of the criminal court to exercise a great deal of  caution in issuing the process particularly when matters are  essentially of civil nature.

This court in Roy V.D. v. State of Kerala (2000) 8 SCC  590 observed thus:- "It is well settled that the power under section 482 Cr.P.C has to be exercised by the High Court, inter alia, to prevent abuse of the process of any court or otherwise to secure the ends of justice. Where criminal proceedings are initiated based on illicit material collected on search and arrest which are per se illegal and vitiate not only a conviction and sentence based on such material but also the trial itself, the proceedings cannot be allowed to go on as it cannot but amount to abuse of the process of the court; in such a case not quashing the proceedings would perpetuate abuse of the process of the court resulting in great hardship and injustice to the accused. In our opinion, exercise of power under section 482 CrPC to quash proceedings in a case like the one on hand, would indeed secure the ends of
justice."

Supreme  court in Zandu Pharmaceutical Works Ltd. &  Others v. Mohd. Sharaful Haque & Another (2005) 1 SCC  122 observed thus:-  "It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."  





PUNISHMENT OF DEATH A CLASSIC JUDGEMENT OF GUJARATH HIGH COURT JUSTICE B.SETHNA J VORA

RAREST OF RARE CASES
JUSTICE B Shethna, J Vora IN State Of Gujarat vs Surendrapal Shivabalakpal COFIRMING DEATH SENTENCE DISCUSSED BELOW JUDGEMENTS OF SUPREME COURTS REGARDING 'rarest of rare cases' AND FINALLY OBSERVED THAT : GUJARATH HIGH COURT (2004) 3 GLR 628
A question arises, if not capital punishment then what ? Solitary confinement ? That would be a living death. The other alternative is life-imprisonment. Could a life termer on one hand and a cold-blooded sadistic criminal on the other hand be meted out with the same term of punishment ? Could that be a balanced justice ?
There have been cases where capital punishment is converted to life imprisonment, and on finishing the term, the released convict commits a grave offence of murder of the like. So who is to assure to cure such a criminal ?

Considering the conditions in India, the vastness of it's area, the variety of social upbringing, disparity in the level of education, diversity in it's population, and the need for maintaining law and order at the present juncture, India cannot risk the experiment of abolishment of capital punishment.

Capital punishment may not assure to stop grievous offences but it can surely refrain one from contemplating them and more so make it tough for the offenders to get away with his crime.

It is said that just as one cannot permit that which is prohibited, similarly, one cannot prohibit that which should be permitted and capital punishment cannot be prohibited as it is rightly permitted

Coming to the facts of this case, which is narrated hereinabove in extensio, it is clear that the accused by his pervert, ghoulish and depraved act has brought an abrupt and early end of an innocent child who had hardly seen seven summers of her life, in the most ghastly and dastardly manner and left behind grisly sovereign of his crime. The victim was an innocent child whereas the accused was the human monster and this heinous and odious crime committed by him is an unpardonable pillage of human virtues, values and tenets of humanity. Such gruesome plundering of an innocent human life not only warrants the highest punishment provided under the law, but it also prompts repugnance from our sense of humanity and surety. We must have heard and decided hundreds of horrendous cases of aggravated assault in life, but this one has sent a chilling shock through our spine. It is no doubt true that the human life must be valued, but not of a human monster, who has got an end of human life of an innocent girl child hardly aged 7 years in a most barbaric manner after committing rape on her in the most brutal manner. Therefore, on facts of this case, if learned Judge has awarded death sentence to the accused then it cannot be said even by stretch of imagination that the learned Judge was blood thirsty.

CASES DISCUSSED BY HON’BLE JUSTICE

In the matter of Kamta Tiwari vs. State of M.P., reported in AIR 1996 SC 2800, the accused was charged for the offence under sec. 376 as well as 302 of IPC of committing rape on his niece aged 7 years and then committed her murder. The entire case was based on circumstantial evidence but the tell-tale circumstances firmly established were not compatible with any other reasonable hypothesis except that the accused after kidnapping "Pinky" committed rape on her and then strangulated her and committed her murder. The Hon'ble Supreme Court held that : "When an innocent helpless girl of 7 years was subjected to such barbaric treatment by a person who was in a position of her trust his culpability assumes the proportion of extreme depravity and arouses a sense of revulsion in the mind of the common man. In fine, the motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime, the execution thereof persuade us to hold that this is a "rarest of rare" cases where the sentence of death is eminently desirable not only to deter others from committing such atrocious crimes but also to give emphatic expression to society's abhorrence of such crimes". While confirming the death sentence in Kamta Tiwari's case (supra), the Hon'ble Supreme Court also considered its earlier land mark judgments (1) in the case of Bachan Singh vs. State of Punjab reported in AIR 1980 SC 898 and (2) in the case of Machhi Singh vs. State of Punjab reported in AIR 1983 SC 957.


In case of Laxman Naik vs. State of Orissa, reported in AIR 1995 SC 1387, the Hon'ble Supreme court confirmed the death sentence of the accused, who, first committed rape on the minor daughter aged 7 of his brother. The case was based purely on circumstantial evidence and then killed her. After considering the the judgment of Bachan Singh's case (supra), the Apext Court observed in para-26 that : ".......While discussing the sentencing policy, also laid down norms indicating the area of imposition of death penalty taking into consideration the aggravating and mitigating circumstances of the case and affirmed the view that the sentencing discretion is to be exercised judicially on well-recognised principles, after balancing all the aggravating and mitigating circumstances of the crime guided by the Legislative Policy incernible form the provisions contained in Sections 253(2) and 354(3) of the Code of Criminal Procedure. In other words, the extreme penalty can be inflicted only in gravest cases of the extreme culpability and in making choice of the sentence, in addition to the circumstances of the offender also. Having regard to these principles with regard to the imposition of the extreme penalty it may be noticed that there are absolutely no mitigating circumstances in the present case........." It has further observed in para 27 that: "........the victim was totally a helpless child there being no one to protect her in the desert where she was taken by the appellant misusing his confidence to fulfil his lust. It appears that the appellant had pre-planned to commit the crime by resorting to diabolical methods and it was with that object that he took the girl to a lonely place to execute his dastardly act." Ultimately, the Hon'ble Supreme court held that: "The evidence on record is indicative of the fact as to how diabolically the appellant had conceived of his plan and brutally executed it and such a calculated cold blooded and brutal murder of a girl of a very tender age after committing rape on her would undoubtedly fall in the category of rarest of the rare case attracting no punishment other than the capital punishment and consequently, we confirm the sentence of death imposed upon the appellant for the offence under Section 302 of the Penal Code."

In the case of Molai and another vs. State of Madhya Pradesh, reported in AIR 2000 SC 177, teenage girl aged 16 years was all alone in the house preparing for her exams. Both the accused took disadvantage of the said fact and committed rape on her and strangulated her by using her undergarments and caused injuries on her person with sharp edged weapon and after committing her murder threw her dead body into septic tank at the backside of the house. In absence of mitigating circumstances, the Hon'ble Supreme court held that in a case of this nature, capital punishment to both the accused was the only proper punishment and accordingly the death sentence was confirmed.

In the case of Javed Ahmed Abdulhamid Pawala vs. State of Maharashtra reported in AIR 1983 SC 594, the accused was convicted for the offence under sec. 302 of IPC. He was only 22 years old and case rested upon circumstantial evidence, however, murder was perpetrated in a cruel, callous and fiendish fashion. Therefore, Hon'ble Supreme Court confirmed the death sentence and held that it was a "rarest of the rare cases".

In the case of Javed Ahmed Abdulhamid Pawala vs. State of Maharashtra reported in AIR 1983 SC 594, the accused was convicted for the offence under sec. 302 of IPC. He was only 22 years old and case rested upon circumstantial evidence, however, murder was perpetrated in a cruel, callous and fiendish fashion. Therefore, Hon'ble Supreme Court confirmed the death sentence and held that it was a "rarest of the rare cases".

In the case of Govindasami vs. State of Tamil Nadu, reported in AIR 1998 SC 2889, the accused was convicted for the offence under sec. 302 for grabbing properties. No mitigating circumstance was pointed out. Considering the judgment of the Hon'ble Supreme Court in Bachan Singh's case (supra) held that: "Nonetheless we looked into the record to find out whether there was (were) any extenuating or mitigating circumstances in favour of the appellant but found none. If, in spite thereof, we commute the death sentence to life imprisonment we will be yielding to spasmodic sentiment, unregulated benevolence and misplaced sympathy."

In the case of Smt. Shashi Nayar vs. Union of India and others reported in AIR 1992 SC 395, the Hon'ble Supreme Court has already set at rest the challenge to the death sentence to be awarded for the offence under sec. 302 of IPC by holding that it does not violate mandate of Article 21, therefore, if it is a rarest of rare cases than the death sentence can always be awarded.

In case of Bantu alias Naresh Giri vs. State of M.P. reported in AIR 2002 SC 70, on the facts of that case, the Hon'ble Supreme Court held that it was not the rarest of the rare cases where the accused was required to sentence to death. It was the case in which the accused first committed rape on the minor girl aged 6 years and then committed her murder. The only aspect of the case which seems to have weighed with the Hon'ble Supreme Court for not awarding the death sentence to the accused for such heinous offence was that he had no past criminal record.

In the case of Raju vs. State of Haryana reported in AIR 2001 SC 2043, the accused first committed rape on minor girl 11 years and then committed her murder. Accused had caused two injuries on head and mouth with bricks as she threatened the accused that she would report about the incident at home and the accused inflicted injuries on spur of moment. He had no criminal past record. Considering the facts of that case, the Hon'ble Supreme court held that it was not the rarest of the rare cases. Therefore, commuted the death sentence to life imprisonment.

In the case of Mohd. Chaman vs. State (NTC of Delhi) reported in (2001)2 SCC 28, the accused first committed rape on minor child 1 and 1/2 years and in that process of committing rape, inflicted injuries on her liver, apart from other injuries which resulted in death of the child. However, considering the guidelines laid down by the Apex Court in its earlier judgment reported in Bachan Singh's case (supra) and Machhi Singh's case (supra) and balancing the aggravating and mitigating circumstances emerging from the evidence on record, the Supreme Court held that it was not the case which can be said to be "rarest of the rare cases". Accordingly, the death sentence was commuted to life imprisonment.

In the case of Kumudi Lal vs. State of U.P. reported in AIR 1999 SC 1699, the girl aged 14 years was first raped by the accused and when she raised shouts, the accused tied Salwar around her neck and thereby caused her murder. On facts of that case, the Hon'ble Supreme Court commuted the death sentence in life imprisonment.

AIR 2003 SC 3131 in the case of Amit alias Ammu vs. State of Maharashtra, wherein also, the accused committed rape on school going girl aged 12 years and than committed her murder. On facts of that case, the Hon'ble Supreme Court held that it was not the rarest of the rare cases and accordingly the death sentence was commuted to life imprisonment.

TENDENCY OF APPLYING PRESSURE THROUGH CRIMINAL PROSECUTION


Indian Oil Corporation V. NEPC India Ltd. (2006) 6 SCC 736 "While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged.”

In G. Sagar Suri vs. State of UP [2000 (2) SCC 636], this Court observed : "It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."


In Chelloor Mankkal Narayan Ittiravi Nambudiri v. State of Travancore, Cochin [AIR 1953 SC 478], this Court held : " to constitute an offence of criminal breach of trust, it is essential that the prosecution must prove first of all that the accused was entrusted with some property or with any dominion or power over it. It has to be established further that in respect of the property so entrusted, there was dishonest misappropriation or dishonest conversion or dishonest use or disposal in violation of a direction of law or legal contract, by the accused himself or by someone else which he willingly suffered to do. It follows almost axiomatically from this definition that the ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed, must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit."

In Jaswantrai Manilal Akhaney v. State of Bombay [AIR 1956 SC 575], this Court reiterated that the first ingredient to be proved in respect of a criminal breach of trust is 'entrustment'. It, however, clarified :".. But when S. 405 which defines "criminal breach of trust" speaks of a person being in any manner entrusted with property, it does not contemplate the creation of a trust with all the technicalities of the law of trust. It contemplates the creation of a relationship whereby the owner of property makes it over to another person to be retained by him until a certain contingency arises or to be disposed of by him on the happening of a certain event."





WITHDRAWL FROM PROSECUTION


SHEONANDAN PASWAN VS STATE OF BIHAR AIR 1983 SC 194 :- From the Supreme Court's enunciation of the legal position governing the proper exercise of the power contained in Section 321,(WITHDRAWL FROM PROSECUTION) three or four things became clear :
(i) Though withdrawal from prosecution is an executive function of the Public Prosecutor for which statutory discretion is vested in him, the discretion is neither absolute nor unreviewable but it is subject to the court's supervisory function. In fact being an executive function it would be subject to a judicial review on certain limited grounds like any other executive action; the authority with whom the discretion is vested 'must genuinely address itself to the matter before it, must not act under the dictates of another body, must not do what it has been forbidden to do, must act in good faith, must have regard to all relevant considerations and must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or the spirit of the legislation that gives it power to act arbitrarily or capriciously."

(ii) Since the trial court's supervisory function of either granting or refusing to grant the permission is a judicial function the same is liable to correction by the High Court under its revisional powers both under the old and present Code of Criminal Procedure, and naturally the Supreme Court would have at least coextensive jurisdiction with the High Court in an appeal preferred to it by special leave or upon a certificate by the High Court.

(iii) No dichotomy as such between political offences or the like on the one hand and common law crimes on the other could be said to have been made by the Supreme Court for purposes of Section 321, for, even in what are called political offences or the like, committing common law crimes, is implicit, for the withdrawal from the prosecution of which the power under Section 321 has to be resorted to. But the decisions do lay down that when common law crimes are motivated by political ambitions or considerations or they are committed during or are followed by mass agitations, communal frenzies, regional disputes, industrial conflicts, student unrest or like situations involving emotive issues giving rise to an atmosphere surcharged with violence, the broader cause of public justice, public order and peace may outweigh the public interest of administering criminal justice in a particular litigation and withdrawal from the prosecution of that litigation would become necessary, a certainty of conviction notwithstanding, and persistence in the prosecution in the name of vindicating the law may prove counter-productive.

In other words, in case of such conflict between the two types of public interests, the narrower public interest should yield to the broader public interest, and, therefore, an onerous duty is cast upon the court to weigh and decide which public interest should prevail in each case while granting or refusing to grant its consent to the withdrawal from the prosecution. For, it is not invariably that whenever crime is politically motivated or is committed in or is followed by any explosive situation involving emotive issue that the prosecution must be withdrawn. In other words, in each case of such conflict the court has to weigh and decide judiciously. But it is obvious that unless the crimes in question are per se political offences like sedition or are motivated by political considerations or are committed during or are followed by mass agitations, communal frenzies, regional disputes, industrial conflicts, student unrest or the like situations involving emotive issues giving rise to an atmosphere surcharged with violence, no question of serving any broader cause of public justice, public order or peace would arise and in the absence thereof the public interest of administering criminal justice in a given case cannot be permitted to be sacrificed, particularly when a highly placed person is allegedly involved in the crime, as otherwise the common man's faith in the rule of law and democratic values would be sheltered.

(iv) When paucity of evidence or lack of prospect of successful prosecution is the ground for withdrawal the court has not merely the power but a duty to examine the material on record without which the validity and propriety of such ground cannot be determined.

SHEONANDAN PASWAN VS STATE OF BIHAR AIR 1983 SC 194 In this country, the scheme of criminal justice places the prime responsibility of prosecuting serious offences on the executive authority. The investigation, collection of requisite evidence and the prosecution for the offences with reference to such evidence are the functions of the executive. The function of the court in this respect is a limited one and intended only to prevent the abuse. The function of the court in according its consent to withdrawal is, however, a judicial function. It, therefore, becomes necessary for the court before whom the application for withdrawal is filed by the public prosecutor to apply its mind so that the appellate court may examine and be satisfied that the court has not accorded its consent as a matter of course but has applied its mind to the grounds taken in the application for withdrawal by Public Prosecutor.








DEFECTIVE INVESTIGATION CANNOT BE GROUND TO ACQUIT ACCUSED


Apex Court in the case of Prithvi Manraj 2005 SCC Crl. 198 has held that faulty investigation could hardly be a ground for rejection of testimony of eyewitnesses which had a ring of truth in it. In fact, in the aforesaid decision, the Apex Court has also referred to an earlier decision and has observed thus: The defect in the investigation holding it to be shaky and creating doubts also appears to be the result of imaginary thought of the trial court. Otherwise also defective investigation by itself cannot be made a ground for acquitting the accused.

The Apex Court in the case reported in 2004 SCC (Cri.) 851 has observed as thus: Criminal Procedure Code, 1973 - Sections. 157, 160 to 168 - Investigation -- Defective investigation - Effect of - Not fatal to prosecution where ocular testimony is found credible and cogent - Court has to be circumspect while evaluating the evidence in a case of such type - Thus, accused cannot be acquitted solely on account of defect in investigation

State Of Karnataka vs Krishnappa ILR 1994 KAR 89 It is observed “ The Supreme Court in the case of VIJAYEE SINGH AND ORS. v. STATE OF U.P. 1990 SC (Crl) 378, clearly pointed out what a doubt in a criminal case means. It is not of a weak or unduly vacillating, capricious, indolent, drowsy or confused mind. It is that of an alert mind arrived at after due application of mind. The trial Court appears to have become over conscious of burden of proof, thus in that process forgetting for a moment that the circumstances are strong enough to find that it was the accused and the accused alone who was guilty of this diabolical act.

Unjust acquittal is as bad as unjust conviction as held by the Supreme Court in the case of SATHI PRASAD v. THE STATE OF U.P 1973 Crl .L.J. 344. It has been strongly urged that because the two children were not examined and the blood stained articles were not sent for Chemical Analysis that benefit should go to the accused. It cannot be so, the truth of a case should not depend on the whims and fancies of an Investigating Officer. If he has failed in his duty to subject the blood stained articles after examining some material witnesses, his way of handling the investigation may come for severe criticism but not at the cost of truth, if the evidence of PW.1 and other circumstances could be held sufficient to bring home the guilt to the accused then mere non-examination of the two small children present in the house will not be of much consequence.”…………… “It is well settled that if the police records become suspect and investigation perfunctory it becomes the duty of the Court to see if the evidence given in Court should be relied upon and such lapses ignored.”





CHARACTER OF ORDINARY WITNESS


In Bhogin Bhai Kirji v. State of Gujrat - AIR 1983 SC 753, the apex court observed certain characteristics about an ordinary witness.
1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties, therefore, cannot be expected to be attuned to absorb the details.
3) The powers of observation differ from person to person. What one may notice, another may not. An object, or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
5) In regard to the exact time of an incident or the time duration of an occurrence, usually people make their estimates by guess work on spur of the moment at the time of interrogation and one cannot expect people to make very precise or reliable estimates in such matters. Again it depends on the time sense of individuals which varies from person to person.
6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused or mixed up when interrogated later on.
7) A witness though wholly truthful, is liable to be overawed by the court atmosphere and piercing cross-examination made by counsel and out of nervousness mixes up facts, gets confused regarding sequence of events, or fills up details from imagination on the spur of moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. Perhaps it is a sort of psychological defence mechanism activated on the spur of the moment.

Every person who witnesses a murder reacts in his own way. Some are stunned, some become speechless and some stand rooted to the spot. Some become hysteric and start wailing, some start shouting for help. Those others who run away to keep themselves as far removed from the spot as possible are not necessarily incredible yet others rush to the rescue of the victim even going to the extent of counter attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of witnesses on the ground that they did not react in a particular manner is to appreciate the evidence in a wholly unrealistic unimaginative way. (Rana Pratap v. State of Haryana - AIR 1983 S.C. 680).







WHEN ACCUSED IS OF UNSOUND MIND


Supposing an accused person who is of unsound mind is committed to the court of Session, it is an illegal committal because it is for the committal Magistrate himself to conduct an enquiry under Sec. 328 Cr.P.C. In a case of wrong committal the Sessions Judge does not have the power to set aside the committal and send it back to the committal court. He can only refer the matter to the High Court by invoking the power under Sec. 395 (2) Cr.P.C.

The ordinary presumption about a witness is that every witness testifying on oath before a court of law is a truthful witness unless he is shown to be unreliable or untruthful on any particular aspect. Witnesses solemnly deposing on oath in the witness box during a trial upon a grave charge of murder must be presumed to act with a full sense of responsibility of the consequence of what they state (State of Punjab v. Hari Singh - AIR 1984 SC 1168).







WITNESS PROTECTION SHALL BE DONE BY STATE


Swaran Singh v. State of Punjab- AIR 2000 SC 2017 wherein it has been observed as follows:“It is the game of unscrupulous lawyers to get adjournments for one excuse or the other till a witness is won over or is tired. Not only that a witness is threatened; he is abducted; he is maimed; he is done away with; or even bribed. There is no protection for him. In adjourning the matter without any valid cause a court unwittingly becomes party to miscarriage of justice. A witness is then not treated with respect in the Court. He is pushed out from the crowded courtroom by the peon. He waits for the whole day and then he finds that the matter is adjourned. He has no place to sit and no place even to have a glass of water. And when he does appear in Court, he is subjected to unchecked and prolonged examination and cross-examination and finds himself in a hapless situation. For all these reasons and others a person abhors becoming a witness. It is the administration of justice that suffers. The appropriate diet money for a witness is a far cry. Here again the process of harassment starts and he decides not to get the diet money at all. High Courts have to be vigilant in these matters. Proper diet money must be paid immediately to the witness (not only when he is examined but for every adjourned hearing) and even sent to him and he should not be left to be harassed by the subordinate staff. If the criminal justice system is to be put on a proper pedestal, the system cannot be left in the hands of unscrupulous lawyers and the sluggish State machinery. Each trial should be properly monitored. Time has come that all the courts, district courts, subordinate courts are linked to the High Court with a computer and a proper check is made on the adjournments and recordings”.

On 8th August 2003, in the case of National Human Rights Commission v. State of Gujarat, the Supreme Court regretted that "no law has yet been enacted, not even a scheme has been framed by the Union of India or by the State Government for giving protection to the witnesses." Later on in the case of Zahira v. State of Gujarat, while transferring what is known as the Best Bakery Case, to Mumbai by its Order dated 12th April, 2004, directed: "The State of Gujarat shall also ensure that the witnesses are produced before the concerned court, whenever they are required to attend them, so that they can depose freely without any apprehension of threat or coercion from any person. In case any witness asks for protection, the State of Maharashtra shall also provide such protection as deemed necessary, in addition to the protection to be provided for by the State of Gujarat."









KARNATAKA LAND LAWS

CASE LAW ON LAND LAWS