Leading Cases For Supreme Court AOR Exams 2021 [Part 2- Criminal Law]

Ashok Kini

20 Aug 2021 1:09 PM GMT

  • Leading Cases For Supreme Court AOR Exams 2021 [Part 2- Criminal Law]

    The list of leading cases for AOR exams provided by the Supreme Court contains the following judgments that dealt with criminal laws [ Item nos: 4,5,11,13,17, 25, 26, 28 31, 35, 39, 46, 47, 50, 60]Sharad Birdhi Chand Sarda v. State of MaharashtraCase: CrA 745 of 1983; 17 July 1984; Justices Syed Murtaza Fazalali, A. Varadarajan , Sabhyasachi MukharjiCitation: AIR 1984 SC 1622, 1985 SCR (1) 88...

    The list of leading cases for AOR exams provided by the Supreme Court contains the following judgments that dealt with criminal laws [ Item nos: 4,5,11,13,17, 25, 26, 28 31, 35, 39, 46, 47, 50, 60]

    Sharad Birdhi Chand Sarda v. State of Maharashtra

    Case: CrA 745 of 1983; 17 July 1984; Justices Syed Murtaza Fazalali, A. Varadarajan , Sabhyasachi Mukharji

    Citation: AIR 1984 SC 1622, 1985 SCR (1) 88 ; 1984 (4) SCC 116

    This judgment laid down the standard necessary for recording a conviction on the basis of circumstantial evidence. The court said that the following five golden principles constitute the panchsheel of the proof of a case based on circumstantial evidence.

    1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' 
    2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty,
    3. The circumstances should be of a conclusive nature and tendency.
    4. They should exclude every possible hypothesis except the one to be proved,
    5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.  

    This judgment also interpreted Section 32(1) of the Evidence Act on Dying Declarations. It held as follows:

    1. Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of s.32 to avoid injustice.
    2. The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under s.32.
    3. The second part of cl.1 of s.32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross- examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring.
    4.  It may be important to note that s.32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.
    5. Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of s.32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant

    A.R. Antulay vs R.S. Nayak 

    Case: CrA 468 of 1986 ; 29 April, 1988 ; Sabyasachi Mukherjee, J; S. Ranganathan, J; S. Natarajan, J; Ranganath Misra, J; M. N.Venkatachaliah, J; G. L. Oza, J; B. C. Ray, J

    Citation: AIR 1988 SC 1531 ; (1988) 2 SCC 602 ; [1988] 1 Suppl. SCR 1

    A complaint got filed against AR Antulay who was the chief Minister of Maharashtra  under Sections 161  and 165 of the Indian Penal Code and Section 5 of the Criminal Law Amendment Act, 1952 and also under Sections 384 and 420 read with Sections 109 and 120B of the Indian Penal Code. The Supreme Court, in a judgment passed in 1984 suo motu withdrew this special case and transferred them to the High Court, with the request to the Chief Justice to assign these two cases to a sitting Judge of the High Court.

    Later, a Constitution Bench  examined whether these directions is in breach of s. 7(1) of the Criminal Law Amendment Act, 1952 which mandated that the offences, as in this case, should be tried only by a Special Judge, thereby denying at least one right of appeal to the appellant was violative of Articles 14 and 21 of the Constitution 

    1. Section 7(1) of the Criminal Law Amendment Act, 1952 creates a condition which is sine qua non for the trial of offences under s. 6(1) of the said Act. The condition is that notwithstanding anything contained in the Code of Criminal Procedure or any other law, the said offences shall be triable by Special Judges only. The offences specified under s. 6(1) of the 1952 Act are those punishable under ss. 161, 162, 163, 164 and 165A of the Indian Penal Code and s. 5 of the Prevention of Corruption Act, 1947. Therefore, the order of this Court transferring the cases to the High Court on 16th February, 1984 was not authorised by law. This Court, by its directions could not confer jurisdiction on the High Court to try any case, when it did not possess such jurisdiction under the scheme of the 1952 Act.
    2. The power to create or enlarge jurisdiction is legislative in character, so also the power to confer a right of appeal or to take away a right of appeal. Parliament alone can do it by law. No Court, whether superior or inferior or both combined can enlarge the jurisdiction of the Court or divest a person of his rights of revision and appeal.  Want of jurisdiction can be established solely by superior court and in practice, no decision can be impeached collaterally by any interior court, but the superior court can always correct its own error brought to its notice either by way of petition or ex debito justitiae. The distinction between an error which entails absence of jurisdiction and an error made within the jurisdiction is so fine that it is rapidly being eroded. In rectifying the error, no personal inhibitions should debar this Court because no person should suffer by reason of any mistake of this Court. Here no rule of res judicata would apply to prevent this Court from entertaining the grievance and giving appropriate directions.
    3. Section 407 of the Criminal Procedure Code was subject to over-riding mandate of s. 7(1) of the 1952 Act and, hence it does not permit the High Court to withdraw a case for trial to itself from the Court of Special Judge. Article 134(1)(b) of the Constitution does not recognise in every High Court power to withdraw for trial cases from any Court subordinate to its authority. At least this Article cannot be construed to mean that where power to withdraw is restricted, it can be widened by virtue of Article 134(1)(b) of the Constitution. Where by a specific clause of a specific statute the power is given for trial by the Special Judge only and transfer can be from one such Judge to another Special Judge, there is no warrant to suggest that the High Court has power to transfer Such a case from a Judge under s. 6 of the Act of 1952 to itself. It is not a case of exclusion of the superior Courts. 

    D.K. Basu v. State of West Bengal

    Case: WP(Crl) 592 OF 1987; 18 December, 1996; Justices Kuldip Singh, A.S. Anand

    Citation: [1996] 10 Suppl. SCR 284 ; (1997) 1 SCC 416

    The Executive Chairman of Legal Aid Services, West Bengal, which was a non-political organisation addressed a letter to the Chief Justice of India drawing his attention to certain news items published in the Telegraph regarding deaths in police lock-ups and custody. This letter was treated as a Public Interest Litigation and the following directions were issued:

    1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name togs with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
    2. That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest a such memo shall be attested by atleast one witness. who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest. 
    3. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
    4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
    5. The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained.
    6. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of he next friend of the person who has been informed of the arrest an the names and particulars of the police officials in whose custody the arrestee is.
    7. The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
    8. The arrestee should be subjected to medical examination by trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned Stare or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well.
    9. Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaga Magistrate for his record.
    10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
    11. A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

    "It is now a well accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is nor available and the citizen must revive the amount of compensation from the State, which shall have the right to be indemnified by the wrong doer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law, is duty bound to do, That award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will. of course, depend upon the peculiar facts of each case and no strait jacket formula can be evolved in that behalf.", the court added.

    Vishaka v. State of Rajasthan  

    Case: 13 August 1997; CJI JS Verma, Justices Sujata V. Manohar, BN Kirpal

    Citation :  [1997] 3 Suppl. SCR 404 ; (1997) 6 SCC 241

    Pursuant to an incident of alleged brutal gang rape of social worker in a village of Rajasthan, a Writ Petition got filed for the enforcement of the fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India. At that time, there was no law to provide protection to women against sexual harassment at work places. The court issued the following guidelines

    1. Duty of the Employer or other responsible persons in work places and other institutions: It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
    2. Definition: For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as: a) physical contact and advances; b) a demand or request for sexual favours; c) sexually coloured remarks; d) showing pornography; e) any other unwelcome physical verbal or non-verbal conduct of sexual nature. Where any of these acts is committed in circumstances where under the victim of such conduct has a reasonable apprehension that in relation to the victim's employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.
    3. Preventive Steps: All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps: (a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways. (b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender. (c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946. (d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
    4. Criminal Proceedings: Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority. In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.
    5. Disciplinary Action: Where such conduct amounts to mis-conduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.
    6. Complaint Mechanism: Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer's organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.
    7. Complaints Committee: The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality. The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any under pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment. The Complaints Committee must make an annual report to the government department concerned of the complaints and action taken by them. The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.
    8. Workers' Initiative: Employees should be allowed to raise issues of sexual harassment at workers meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.
    9. Awareness: Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in suitable manner.
    10. Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.
    11. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.
    12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.

    Epilogue: In 2013, the Centre enacted Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment.

    P. Rama Chandra Rao v. State of Karnataka 

    Case: Appeal (Crl.) 535 of 2000; 16 April, 2002; CJI SP Baroocha, Justices Syed Shah Mohammed Quadri, R.C. Lahoti, N. Santosh Hegde, Ruma Pal, Arijit Pasayat, Doraiswamy Raju

    Citation: [2002] 3 SCR 60 ; (2002) 4 SCC 578

    In the year 1996, the Supreme Court in Common Cause vs. Union of India cases, issued some general directions inter alia prescribing  periods of limitation beyond which the trial of a criminal case or a criminal proceeding cannot continue and must be closed followed by an order acquitting or discharging the accused. A seven judge bench, overruling these directions, held"

    1. The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulay's case, adequately take care of right to speedy trial. We uphold and re-affirm the said propositions. The guidelines laid down in A.R. Antulay's case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait-jacket formula. Their applicability would depend on the fact-situation of each case. It is difficult to foresee all situations and no generalization can be made.
    2. It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time-limits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause Case (I), Raj Deo Sharma case (I) and (II). At the most the periods of time prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A.R. Antulay's case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time-limits cannot and will not by themselves be treated by any Court as a bar to further continuance of the trial or proceedings and as mandatorily obliging the court to terminate the same and acquit or discharge the accused.
    3. The Criminal Courts should exercise their available powers, such as those under Sections 309, 311 and 258 of Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial judge can prove to be better protector of such right than any guidelines. In appropriate cases jurisdiction of High Court under Section 482 of Cr.P.C. and Articles 226 and 227 of Constitution can be invoked seeking appropriate relief or suitable directions.

    State of West Bengal v. The Committee for Protection of Democratic Rights, West Bengal

    Case: CA 6249-6250  of 2001; 17 February, 2010; Justices  K.G. Balakrishnan, R.V. Raveendran, D.K. Jain, P. Sathasivam, J.M. Panchal

    Citation: [2010] 2 SCR 979 (2010) 3 SCC 571

    In this case, the Constitution Bench considered the issue whether the High Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, can direct the Central Bureau of Investigation (for short "the CBI"), established under the Delhi Special Police Establishment Act, 1946 to investigate a cognizable offence, which is alleged to have taken place within the territorial jurisdiction of a State, without the consent of the State Government.

    The court held that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to the CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly, the bench held.

    "Despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these Constitutional powers. The very plenitude of the power under the said Articles requires great caution in its exercise. In so far as the question of issuing a direction to the CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.", the court added. |It was also observed that an order directing an enquiry by the CBI should be passed only when the High Court, after considering the material on record, comes to a conclusion that such material does disclose a prima facie case calling for an investigation by the CBI or any other similar agency.

    Selvi  v. State of Karnataka

    Case: CrA 1267 of 2004 ; May 5, 2010 ; CJI KG Balakrishnan, Justices RV Raveendran, JM Panchal

    Citation: [2010] 5 SCR 381 (2010) 7 SCC 263

    The three judge bench considered the legal validity of involuntary administration of certain scientific techniques, namely narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) test for the purpose of improving investigation efforts in criminal cases.

    It was held that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty.

    The court however observed that voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safeguards are in place. "Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with Section 27 of the Evidence Act, 1872", the court added.

    Referring to the 'Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused' published by National Human Rights Commission in 2000, the bench said that the same should be strictly adhered to and similar safeguards should be adopted for conducting the `Narcoanalysis technique' and the `Brain Electrical Activation Profile' test. The following are the said guidelines: (i) No Lie Detector Tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test. (ii) If the accused volunteers for a Lie Detector Test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer. (iii) The consent should be recorded before a Judicial Magistrate. (iv) During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer. (v) At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a `confessional' statement to the Magistrate but will have the status of a statement made to the police. (vi) The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation. (vii) The actual recording of the Lie Detector Test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer. (viii) A full medical and factual narration of the manner of the information received must be taken on record.

    Republic of Italy and Ors. v. Union of India

    Case: WP(C) 135 OF 2012;  18 January 2013; CJI Altamas Kabir, Justice J. Chelameswar

    Citation: [2013] 4 SCR 595 ; (2013) 4 SCC 721 29 0

    In this case, the Supreme Court examined the jurisdiction of the Kerala State Police to investigate the incident of shooting of the two Indian fishermen on board their fishing vessel (2012 sea-firing incident near Kerala coast which killed two Indian fishermen). The court also considered whether the Courts of the Republic of Italy or the Indian Courts have jurisdiction to try the accused.

    The court held that the State of Kerala has no jurisdiction to investigate into the incident, and it is the Union of India which has jurisdiction to proceed with the investigation and trial of the accused The Union of was thus directed to set up a Special Court to try this case and to dispose of the same in accordance with the provisions of the Maritime Zones Act, 1976, the Indian Penal Code, the Code of Criminal Procedure and , the provisions of UNCLOS 1982, where there is no conflict between the domestic law and UNCLOS 1982.

    Epilogue: In July 2020, the Permanent Court of Arbitration(PCA) under the United Nations Convention of Law of Seas ruled that India was entitled to claim compensation from Italy for the death of Indian fishermen. However, the International Tribunal also held that India has no jurisdiction to launch criminal prosecution against the Marines as they had sovereign immunity. Following this, the Centre informed the Supreme Court that it was accepting the award of the PCA and sought to quash the pending cases against the Marines. Later, after the compensation of Rupees 10 crores was deposited by the Republic of Italy, the Supreme Court quashed the criminal proceedings pending in India against against two Italian Marines -Massimilano Latorre and Salvatore Girone.

    Lalita Kumari v. Govt.of U.P.

    Case:  WP(Crl) 68 OF 2008; 12 November, 2013; CJI P Sathasivam, Justices B.S. Chauhan, Ranjana Prakash Desai, Ranjan Gogoi, S.A. Bobde

    Citation: [2013] 14 SCR 713 (2014) 2 SCC 1

    While considering a petition seeking issuance of a writ of Habeas Corpus for the protection of his minor girl who has been kidnapped, the Court considered the issue whether "a police officer is bound to register a First Information Report (FIR) upon receiving any information relating to commission of a cognizable offence under Section 154 of the Code of Criminal Procedure, 1973 (in short 'the Code') or the police officer has the power to conduct a "preliminary inquiry" in order to test the veracity of such information before registering the same?"

    The court held:

    1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
    2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
    3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
    4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
    5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
    6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: a) Matrimonial disputes/ family disputes b) Commercial offences c) Medical negligence cases d) Corruption cases e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
    7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
    8. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.

    Shreya Singhal v. Union of India

    Case:  WP(Crl) 167 OF 2012; 24 March 2015; Justices J. Chelameswar, RF Nariman

    Citation: [2015] 5 SCR 963 (2015) 5 SCC 01 

    By virtue of an Amendment Act of 2009 with effect from 27.10.2009, Section 66A was added to Information Technology Act. It provided for punishment for sending offensive messages through communication service, etc. The provision read thus: Any person who sends, by means of a computer resource or a communication device,- (a) any information that is grossly offensive or has menacing character; or (b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device; or (c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine. Explanation.- For the purposes of this section, terms "electronic mail" and "electronic mail message" means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message."

    Allowing the writ petitions challenging the constitutional validity of this provision, the court held that this Section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right. The court held that this Section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of overbreadth. The bench, however, rejected the challenge against Section 69A of IT Act.

    The court also held that Section 118(d) of Kerala Police Act unconstitutional on the ground that it violates Article 19(1)(a)  not being a reasonable restriction on the said right and not being saved under any of the subject matters contained in Article 19(2).

    Epilogue:  Even after this judgment, crimes continued to be registered in various parts of the country under Section 66A IT Act. In January 2019, the People's Union for Civil Liberties (PUCL), approached the Apex Court highlighting the continued use of Section 66A of the Information Technology Act. Agreeing with the suggestion mooted by the Attorney General of India, the Supreme Court disposed of this application by directing all High Courts to make available the copies of the Supreme Court judgment in 'Shreya Singhal v. Union of India' to all the District Courts. The court had also directed the Chief Secretaries of all states to sensitise the police departments in this country by sending copies of this judgment to the Director General of Police in each State. In July 2021, the Supreme Court again expressed shock at the practice of police registering FIRs under Section 66A of the Information Technology Act. The court issued notice to States, Union Territories and Registrar of High Courts in a plea filed by Peoples Union for Civil Liberties (PUCL) seeking various directions and guidelines against the FIRs under provision of Section 66A struck down by Shreya Singhal case judgement.

    Union of India v. V. Sriharan @ Murugan 

    Case: WP (Crl.) No. 48 of 2014 ; 2 December 2015 ; CJI H.L. Dattu, Justices Fakkir Mohamed Kalifulla, Pinaki Chandra Ghose, Abhay Manohar Sapre, Uday Umesh Lalit

    Citation: [2015] 14 SCR 613 2016 (7) SCC 1

    Pursuant to commutation of death sentence of the convicts in Rajiv Gandhi Assassination Case by the Supreme Court,  the State of Tamil Nadu proposed to remit the sentence of life imprisonment and to release the convicts. This decision was assailed by the Union of India before the Supreme Court. The matter was ultimately referred to a Constitution Bench which held (by 3:2 Majority) as follows:

    1. Imprisonment for life in terms of Section 53 read with Section 45 of the Penal Code only means imprisonment for rest of life of the convict. The right to claim remission, commutation, reprieve etc. as provided under Article 72 or Article 161 of the Constitution will always be available being Constitutional Remedies untouchable by the Court. The ratio laid down in Swamy Shraddananda (supra) that a special category of sentence; instead of death can be substituted by the punishment of imprisonment for life or for a term exceeding 14 years and put that category beyond application of remission is well-founded and we answer the said question in the affirmative.
    2. The exercise of power under Sections 432 and 433 of Code of Criminal Procedure will be available to the Appropriate Government even if such consideration was made earlier and exercised under Article 72 by the President or under Article 161 by the Governor. As far as the application of Article 32 of the Constitution by this Court is concerned, it is held that the powers under Sections 432 and 433 are to be exercised by the Appropriate Government statutorily and it is not for this Court to exercise the said power and it is always left to be decided by the Appropriate Government
    3. The status of Appropriate Government whether Union Government or the State Government will depend upon the order of sentence passed by the Criminal Court as has been stipulated in Section 432(6) and in the event of specific Executive Power conferred on the Centre under a law made by the Parliament or under the Constitution itself then in the event of the conviction and sentence covered by the said law of the Parliament or the provisions of the Constitution even if the Legislature of the State is also empowered to make a law on the same subject and coextensive, the Appropriate Government will be the Union Government having regard to the prescription contained in the proviso to Article 73(1)(a) of the Constitution. The principle stated in the decision in G.V. Ramanaiah (supra) should be applied. In other words, cases which fall within the four corners of Section 432(7)(a) by virtue of specific Executive Power conferred on the Centre, the same will clothe the Union Government the primacy with the status of Appropriate Government. Barring cases falling under Section 432(7)(a), in all other cases where the offender is sentenced or the sentence order is passed within the territorial jurisdiction of the concerned State, the State Government would be the Appropriate Government.
    4. No suo motu power of remission is exercisable under Section 432(1) of Code of Criminal Procedure It can only be initiated based on an application of the person convicted as provided under Section 432 (2) and that ultimate order of suspension or remission should be guided by the opinion to be rendered by the Presiding Officer of the concerned Court,
    5. Having regard to the principles culled out in paragraph 160 (a) to (n), it is imperative that it is always safe and appropriate to hold that in those situations covered by sub-clauses (a) to (c) of Section 435(1) falling within the jurisdiction of the Central Government it will assume primacy and consequently the process of ''Consultation'' in reality be held as the requirement of ''Concurrence".

    Mukesh v. State for NCT of Delhi

    Case: CrA 607-608 OF 2017; 5 May 2017 ; CJI Dipak Misra, Justices R. Banumathi, Ashok Bhushan

    Citation: (2017) 6 SCC 1 ; [2017] 6 SCR 1

    On December 16, 2012, five adult men and a juvenile lured the 23-year-old trainee physiotherapist and her male friend onto a bus in Delhi, where they repeatedly raped the woman and beat both with a metal bar before dumping them on a road. The woman, later dubbed Nirbhaya (meaning fearless), died two weeks later of her injuries. Four of the adults were sentenced to death by the Trial Court while the fifth hanged himself in prison. The death sentence was upheld by the Delhi High Court on March 12, 2014. 

    On 5 May, 2017, a three Judge Bench of the Supreme Court dismissed their appeal against the Delhi High Court judgment. Justice Dipak Misra termed the incident as "tsunami of shock" while describing the nature and gravity of offence committed by the convicts. In a voluminous judgement (430 pages), the bench held the attitude of offenders as "beastial proclivity" and said "It sounds like a story from a different world where humanity is treated with irreverence." Justice Bhanumati, in a separate concurring opinion said the "incident shocks collective conscience of society"

    Shakti Vahini v. Union of India 

    Case: WP(C) 231 OF 2010 ; 27 March, 2018 ; CJI Dipak Misra, AM Khanwilkar, DY Chandrachud

    Citation: [2018] 3 SCR 770 (2018) 7 SCC 192 

    Shakti Vahini, an NGO, had approached the Apex Court, seeking directions to the State Governments and the Central Government to take preventive steps to combat honour crimes. It had also prayed before the Court to direct the State Governments to launch prosecutions in each case of honour killing and take appropriate measures so that such honour crimes and embedded evil in the mindset of certain members of the society are dealt with iron hands.

    The Court, in its judgment, observed that the consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock. It held that any attempt by Khap Panchayats or any other assembly to scuttle or prevent two consenting adults from marrying is absolutely "illegal". It issued the following directives as preventive, remedial and punitive measures against honour crimes:

    Preventive Steps:-

    1. The State Governments should forthwith identify Districts, Sub-Divisions and/or Villages where instances of honour killing or assembly of Khap Panchayats have been reported in the recent past, e.g., in the last five years.
    2. The Secretary, Home Department of the concerned States shall issue directives/advisories to the Superintendent of Police of the concerned Districts for ensuring that the Officer In charge of the Police Stations of the identified areas are extra cautious if any instance of inter-caste or inter- religious marriage within their jurisdiction comes to their notice.
    3. If information about any proposed gathering of a Khap Panchayat comes to the knowledge of any police officer or any officer of the District Administration, he shall forthwith inform his immediate superior officer and also simultaneously intimate the jurisdictional Deputy Superintendent of Police and Superintendent of Police.
    4. On receiving such information, the Deputy Superintendent of Police (or such senior police officer asidentified by the State Governments with respect to the area/district) shall immediately interact with the members of the Khap Panchayat and impress upon them that convening of such meeting/gathering is not permissible in law and to eschew from going ahead with such a meeting. Additionally, he should issue appropriate directions to the Officer Incharge of the jurisdictional Police Station to be vigilant and, if necessary, to deploy adequate police force for prevention of assembly of the proposed gathering.
    5. Despite taking such measures, if the meeting is conducted, the Deputy Superintendent of Police shall personally remain present during the meeting and impress upon the assembly that no decision can be taken to cause any harm to the couple or the family members of the couple, failing which each one participating in the meeting besides the organisers would be personally liable for criminal prosecution. He shall also ensure that video recording of the discussion and participation of the members of the assembly is done on the basis of which the law enforcing machinery can resort to suitable action.
    6. If the Deputy Superintendent of Police, after interaction with the members of the Khap Panchayat, has reason to believe that the gathering cannot be prevented 49 and/or is likely to cause harm to the couple or members of their family, he shall forthwith submit a proposal to the District Magistrate/Sub-Divisional Magistrate of the District/ Competent Authority of the concerned area for issuing orders to take preventive steps under the Cr.P.C., including by invoking prohibitory orders under Section 144 Cr.P.C. and also by causing arrest of the participants in the assembly under Section 151 Cr.P.C.
    7. The Home Department of the Government of India must take initiative and work in coordination with the State Governments for sensitising the law enforcement agencies and by involving all the stake holders to identify the measures for prevention of such violence and to implement the constitutional goal of social justice and the rule of law.
    8. There should be an institutional machinery with the necessary coordination of all the stakeholders. The different State Governments and the Centre ought to work on sensitization of the law enforcement agencies to mandate social initiatives and awareness to curb such violence.

    Remedial Measures

    1. Despite the preventive measures taken by the State Police, if it comes to the notice of the local police that the Khap Panchayat has taken place and it has passed any diktat to take action against a couple/family of an inter-caste or inter-religious marriage (or any other marriage which does not meet their acceptance), the jurisdictional police official shall cause to immediately lodge an F.I.R. under the appropriate provisions of the Indian Penal Code including Sections 141, 143, 503 read with 506 of IPC.
    2. Upon registration of F.I.R., intimation shall be simultaneously given to the Superintendent of Police/ Deputy Superintendent of Police who, in turn, shall ensure that effective investigation of the crime is done and taken to its logical end with promptitude.
    3. Additionally, immediate steps should be taken to provide security to the couple/family and, if necessary, to remove them to a safe house within the same district or elsewhere keeping in mind their safety and threat perception. The State Government may consider of establishing a safe house at each District Headquarter for that purpose. Such safe houses can cater to accommodate (i) young bachelor-bachelorette couples whose relationship is being opposed by their families /local community/Khaps and (ii) young married couples (of an inter-caste or inter-religious or any other marriage being opposed by their families/local community/Khaps). Such safe houses may be placed under the supervision of the jurisdictional District Magistrate and Superintendent of Police.
    4. The District Magistrate/Superintendent of Police must deal with the complaint regarding threat administered to such couple/family with utmost sensitivity. It should be first ascertained whether the bachelor-bachelorette are capable adults. Thereafter, if necessary, they may be provided logistical support for solemnising their marriage and/or for being duly registered under police protection, if they so desire. After the marriage, if the couple so desire, they can be provided accommodation on payment of nominal charges in the safe house initially for a period of one month to be extended on monthly basis but not exceeding one year in aggregate, depending on their threat assessment on case to case basis.
    5. The initial inquiry regarding the complaint received from the couple (bachelor-bachelorette or a young married couple) or upon receiving information from an independent source that the relationship/marriage of such couple is opposed by their family members/local community/Khaps shall be entrusted by the District Magistrate/ Superintendent of Police to an officer of the rank of Additional Superintendent of Police. He shall conduct a preliminary inquiry and ascertain the authenticity, nature and gravity of threat perception. On being satisfied as to the authenticity of such threats, he shall immediately submit a report to the Superintendent of Police in not later than one week.
    6. The District Superintendent of Police, upon receipt of such report, shall direct the Deputy Superintendent of Police incharge of the concerned sub-division to cause to register an F.I.R. against the persons threatening the couple(s) and, if necessary, invoke Section 151 of Cr.P.C. Additionally, the Deputy Superintendent of Police shall personally supervise the progress of investigation and ensure that the same is completed and taken to its logical end with promptitude. In the course of investigation, the concerned persons shall be booked without any exception including the members who have participated in the assembly. If the involvement of the members of Khap Panchayat comes to the fore, they shall also be charged for the offence of conspiracy or abetment, as the case may be.

    Punitive Measures

    1. Any failure by either the police or district officer/officials to comply with the aforesaid directions shall be considered as an act of deliberate negligence and/or misconduct for which departmental action must be taken under the service rules. The departmental action shall be initiated and taken to its logical end, preferably not exceeding six months, by the authority of the first instance.
    2. In terms of the ruling of this Court in Arumugam Servai (supra), the States are directed to take disciplinary action against the concerned officials if it is found that (i) such official(s) did not prevent the incident, despite having prior knowledge of it, or (ii) where the incident had already occurred, such official(s) did not promptly apprehend and institute criminal proceedings against the culprits.
    3. The State Governments shall create Special Cells in every District comprising of the Superintendent of Police, the District Social Welfare Officer and District Adi-Dravidar Welfare Officer to receive petitions/complaints of harassment of and threat to couples of inter-caste marriage.
    4. These Special Cells shall create a 24 hour helpline to receive and register such complaints and to provide necessary assistance/advice and protection to the couple.
    5. The criminal cases pertaining to honour killing or violence to the couple(s) shall be tried before the designated Court/Fast Track Court earmarked for that purpose. The trial must proceed on day to day basis to be concluded preferably within six months from the date of taking cognizance of the offence. We may hasten to add that this direction shall apply even to pending cases. The concerned District Judge shall assign those cases, as far as possible, to one jurisdictional court so as to ensure expeditious disposal thereof.

    Navtej Singh Johar & Ors. v. Union of India 
    Case: WP(Crl) 76 OF 2016 ; 6 September 2018; CJI Dipak Misra, Justices AM Khanwilkar, RF Nariman, DY Chandrachud, Indu Malhotra

    Citation: [2018] 7 SCR 379 (2018) 10 SCC 1   

    The Delhi High Court decriminalised homosexuality by allowing the writ petition filed by NAZ Foundation challenging the constitutional validity of Section 377 of the Indian Penal Code. Later in Suresh Kumar Koushal vs. Naz Foundation, the Supreme Court set aside this judgment of the High Court. The issue resurrected in July 2016, when a fresh petition filed by well-known persons, including dancer N.S. Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur, was referred to Constitution Bench by a Division Bench headed by Justice Bobde. The reference was made on the basis of submission that it was the first time that individuals directly affected by the provision were approaching the Court.

    Overruling its earlier judgment, the Constitution bench of the Supreme Court held Section 377 of the Indian Penal Code is unconstitutional, to the extent it criminalizes consensual sexual acts between adults, whether homosexual or heterosexual. However, bestiality will continue as an offence.  The court observed that constitutional rights cannot be dictated by majoritarian views and popular morality.

    Joseph Shine v. Union of India

    Case: WP(Crl) 194 of 2017; 27 September 2018 ; CJI Dipak Misra, Justices AM Khanwilkar, RF Nariman, DY Chandrachud, Indu Malhotra

    Citation: [2018] 11 SCR 765 (2019) 3 SCC 39

    Section 497 of the Indian Penal Code punished a married man for having sex with wife of another man. However, the sexual act was exempted from punishment if it is performed with the consent or connivance of the husband of the other woman. Also, the provision exempted the wife from punishment, and states that wife should not be even treated as an abettor.

    In this case, a woman approached the Supreme Court challenging this provision. Allowing the writ petition, the Constitution Bench struck down 158 year old Section 497 of the Indian Penal Code as unconstitutional. "Any provision of law affecting individual dignity and equality of women invites wrath of constitution. It's time to say that husband is not the master of wife. Legal sovereignty of one sex over other sex is wrong", read out Chief Justice Misra from the judgment written for himself and Justice A M Khanwilkar. The judgment held Section 497 to be "manifestly arbitrary".

    Justice RF Nariman wrote a separate judgment to concur with the judgments of CJI Mira and Justice Khanwilkar, and stated that Section 497 was an archaic provision which had lost its rationale. "Ancient notion of man being the perpetrator and woman being victim of adultery no longer holds good", observed Justice Nariman. It treats women as chattel, and has chauvinistic undertones. Justice Chandrachud in his separate but concurring opinion said that Section 497 was destructive to woman's dignity. "Autonomy is intrinsic in dignified human existence.497 denuded the woman from making choices.The law in adultery is a codified rule of patriarchy.Society attributes impossible attributes to a woman, Raising woman to a pedestal is one part of such attribution", he said. Justice Indu Malhotra noted in her judgment that the Section institutionalized discrimination.

    The Court however clarified that adultery will be a ground for divorce. It was also stated that if an act of adultery leads the aggrieved spouse to suicide, the adulterous partner could be prosecuted for abetment of suicide under Section 306 of the IPC. The judgment also struck down Section 198(2) of the Code of Criminal Procedure, as a consequence of striking down of Section 497 IPC.

    Sushila Aggarwal and Others v. State (NCT of Delhi)

    Case: 29 January 2020 ; SLP(Crl) 7281­-7282/2017 ;Justices Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah and S. Ravindra Bhat

    Citation: (2020) 5 SCC 1 ; [2020] 2 S.C.R. 1

    In this case, the Constitution bench considered the issue (1) Whether the protection granted to a person under Section 438 Cr.P.C. should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail. (2) Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court.

    The Court held that anticipatory bail should not invariably be limited to a fixed period. But if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so, the five judge bench headed by Justice Arun Mishra has held. The Court also held that life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial except in special and peculiar cases.

    Next Story