Supreme Court Criminal Law Digest: July 2023

1996 Lajpat Nagar blast case - The bomb blast caused at the behest of the accused persons resulted in the death of 13 persons and 38 persons suffered injuries. There was further damage caused to the livelihood of the shopkeepers, whose shops were burnt down due to the said bomb blast. It is evident that these accused persons were part of the plan for future blasts in the nation as well. The incident took place on May 21, 1996, i.e., approximately 27 years ago, the trial court awarded the sentence of death on April 22, 2010, i.e., more than 13 years ago are all mitigating circumstances in not awarding the sentence of death even though it falls within the category of rarest of rare cases. (Para 208) Mohd Naushad v. State (Govt. of NCT of Delhi), 2023 LiveLaw (SC) 508 : 2023 INSC 605

Accused not filing a petition to quash FIR / Chargesheet has no relevance in deciding bail application. Teesta Atul Setalvad v. State of Gujarat, 2023 LiveLaw (SC) 554 : 2023 INSC 637

All laws on preventive detention are necessarily harsh. They curtail personal liberty of an individual, who is kept behind bars without any trial. In such cases, procedure is all a detenue has. Laws of preventive detention must therefore be strictly applied. Prakash Chandra Yadav v. State of Jharkhand, 2023 LiveLaw (SC) 529

Anticipatory Bail - Personal liberty is important, but courts must also consider the gravity of offence & impact on society. Pratibha Manchanda v. State of Haryana, 2023 LiveLaw (SC) 514 : 2023 INSC 612

Arnesh Kumar Guidelines - The Supreme Court reiterated the guidelines laid down for arrest under Section 498A of the Indian Penal Code, 1860 and for other offences punishable by a maximum jail term of seven years in its 2014 Arnesh Kumar judgement - Also directed high courts and police chiefs to issue notifications and circulars in terms of the 2014 judgement to ensure strict compliance. (Para 12) Md. Asfak Alam v. State of Jharkhand, 2023 LiveLaw (SC) 583 : 2023 INSC 660

Attempt to culpable homicide - Conviction under section 308 IPC not sustainable if accused had no intention or knowledge to cause death. Abdul Ansar v. State of Kerala, 2023 LiveLaw (SC) 510 : 2023 INSC 602

Bail orders must be backed by reasons considering vital aspects': Supreme Court sets aside 'casual & cryptical' HC order. Rohit Bishnoi v. State of Rajasthan, 2023 LiveLaw (SC) 560 : 2023 INSC 642

Ballistic expert evidence - In cases where injuries are caused by firearms, the opinion of the ballistic expert is of a considerable importance where both the firearm and the crime cartridge are recovered during the investigation to connect an accused with the crime. Failure to produce the expert opinion before the trial court in such cases affects the creditworthiness of the prosecution case to a great extent. (Para 23, 24) Pritinder Singh @ Lovely v. State of Punjab, 2023 LiveLaw (SC) 516 : 2023 INSC 614

Cannot grant interim protection to accused while rejecting anticipatory bail plea : Supreme Court 'amazed' at HC's self-contradictory order. State of Uttar Pradesh v. Mohd. Afzal, 2023 LiveLaw (SC) 566

Child Witness- Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. A child witness of tender age is easily susceptible to tutoring. However, that by itself is no ground to reject the evidence of a child witness. The Court must make careful scrutiny of the evidence of a child witness. The Court must apply its mind to the question whether there is a possibility of the child witness being tutored. Therefore, scrutiny of the evidence of a child witness is required to be made by the Court with care and caution. (Para 8) Pradeep v. State of Haryana, 2023 LiveLaw (SC) 501 : 2023 INSC 599

Circumstantial Evidence - The circumstances from which the conclusion of guilt is to be drawn should be fully established - 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” - 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 - The circumstances should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one sought to be proved, and there must be a chain of evidence so complete so 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 - However strong a suspicion may be, it cannot take place of a proof beyond reasonable doubt. (Para 5-8) Pritinder Singh @ Lovely v. State of Punjab, 2023 LiveLaw (SC) 516 : 2023 INSC 614

Code of Criminal Procedure, 1973; Section 102, 104 - the power under Section 104 of Cr.P.C. cannot be invoked to impound a passport. The reason is that the provisions of the PP Act which deal with the specific subject of impounding passports shall prevail over Section 104 of Cr.P.C. Moreover, under Section 102 (1) of Cr.P.C., the Police have the power to seize the passport but there is no power to impound the same. Even if the power of seizure of a passport is exercised under Section 102, the Police cannot withhold the said document and the same must be forwarded to the Passport Authority. It is, thereafter, for the Passport Authority to decide whether the passport needs to be impounded. (Para 8) Chennupati Kranthi Kumar v. State of Andra Pradesh, 2023 LiveLaw (SC) 565 : 2023 INSC 645

Code of Criminal Procedure, 1973; Section 222 (2) - Court can consider whether the accused has committed any other offence which is a minor offence in comparison to the offence for which he is tried. (Para 13) Abdul Ansar v. State of Kerala, 2023 LiveLaw (SC) 510 : 2023 INSC 602

Code of Criminal Procedure, 1973; Section 319 - Merits of evidence has to be appreciated only during trial; not at the stage of summoning the accused. Sandeep Kumar v. State of Haryana, 2023 LiveLaw (SC) 573 : 2023 INSC 654

Code of Criminal Procedure, 1973; Section 319 - The contention that a summoned person must be given an opportunity of being heard before being added as an accused to face the trial is clearly not contemplated under Section 319 Cr.P.C - The principle of hearing a person who is summoned cannot be read into Section 319 Cr.P.C. - The lateral entry of a person summoned in exercise of power under Section 319 Cr.P.C. is only to face the trial along with other accused. (Para 32-34) Yashodhan Singh v. State of U.P., 2023 LiveLaw (SC) 576 : 2023 INSC 652

Code of Criminal Procedure, 1973; Section 319 - The merits of the evidence has to be appreciated only during the trial, by cross examination of the witnesses and scrutiny of the Court. This is not to be done at the stage of Section 319 - Scope and ambit discussed. (Para 4-5) Sandeep Kumar v. State of Haryana, 2023 LiveLaw (SC) 573 : 2023 INSC 654

Code of Criminal Procedure, 1973; Section 378(2) - the judgment of the Calcutta High Court, which proposed a mechanism for filing of appeals before the HC against acquittals in CBI cases, should not be treated as a mandate. Central Bureau of Investigations v. S.R. Ramamani, 2023 LiveLaw (SC) 558

Code of Criminal Procedure, 1973; Section 378(3) - The Supreme Court upheld a judgment of the Uttarakhand High Court which dismissed an application filed by the CBI seeking leave to appeal against order passed by the trial court acquitting three policemen who were charged of murder while patrolling, on the ground that the circumstances found do not constitute a complete chain as to indicate that in all human probability it were the accused persons who committed the crime. (Para 32) Central Bureau of Investigation v. Shyam Bihari, 2023 LiveLaw (SC) 542 : 2023 INSC 623

Code of Criminal Procedure, 1973; Section 428 - Anticipatory Bail - Self-Contradictory orders passed by the High Court - On the one hand, the application for anticipatory bail is rejected and, on the other hand, the interim protection is granted for a period of two months - Appeal allowed and interim protection direction set aside. State of Uttar Pradesh v. Mohd. Afzal, 2023 LiveLaw (SC) 566

Code of Criminal Procedure, 1973; Section 438 - Anticipatory Bail - The relief of Anticipatory Bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tight rope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each individual case becomes crucial to ensure a just outcome. (Para 19) Pratibha Manchanda v. State of Haryana, 2023 LiveLaw (SC) 514 : 2023 INSC 612

Code of Criminal Procedure, 1973; Section 438 - Central Goods and Service Tax Act, 2017; Section 69 - Power to Arrest – Anticipatory Bail - If any person is summoned under Section 69 of the CGST Act, 2017 for the purpose of recording of his statement, the provisions of Section 438 Cr.P.C. cannot be invoked. No First Information Report gets registered before the power of arrest under Section 69(1) of the CGST Act, 2017 is invoked and in such circumstances, the person summoned cannot invoke Section 438 Cr.P.C. for anticipatory bail. The only way a person summoned can seek protection against the pre-trial arrest is to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India. (Para 16) State of Gujarat v. Choodamani Parmeshwaran Iyer, 2023 LiveLaw (SC) 552

Code of Criminal Procedure, 1973; Section 438 - the High Court fell in grave error in proceeding on the basis of the undertaking of the accused and imposing payment of Rs.22,00,000/- (Rupees twenty-two lakh) as a condition precedent for grant of bail. (Para 29) Ramesh Kumar v. State NCT of Delhi, 2023 LiveLaw (SC) 496 : 2023 INSC 596

Code of Criminal Procedure, 1973; Section 438 - the process of criminal law cannot be pressed into service for settling a civil dispute. (Para 27) Ramesh Kumar v. State NCT of Delhi, 2023 LiveLaw (SC) 496 : 2023 INSC 596

Code of Criminal Procedure, 1973; Section 438 - Willingness of accused to deposit money as bail condition must be considered only in cases involving public money; not in private cases. (Para 26) Ramesh Kumar v. State NCT of Delhi, 2023 LiveLaw (SC) 496 : 2023 INSC 596

Code of Criminal Procedure, 1973; Section 439 – Bail - An order granting bail in a mechanical manner, without recording reasons, would suffer from the vice of nonapplication of mind, rendering it illegal. (Para 19) Rohit Bishnoi v. State of Rajasthan, 2023 LiveLaw (SC) 560 : 2023 INSC 642

Code of Criminal Procedure, 1973; Section 439 – Bail - The primary considerations which must be placed at balance while deciding the grant of bail are: (i) The seriousness of the offence; (ii) The likelihood of the accused fleeing from justice; (iii) The impact of the release of the accused on the prosecution witnesses; (iv) Likelihood of the accused tampering with evidence. (Para 18) Rohit Bishnoi v. State of Rajasthan, 2023 LiveLaw (SC) 560 : 2023 INSC 642

Code of Criminal Procedure, 1973; Section 439 – Bail - While considering an application for grant of bail, a prima-facie conclusion must be supported by reasons and must be arrived at after having regard to the vital facts of the case brought on record. Due consideration must be given to facts suggestive of the nature of crime, the criminal antecedents of the accused, if any, and the nature of punishment that would follow a conviction vis à vis the offence/s alleged against an accused. (Para 22) Rohit Bishnoi v. State of Rajasthan, 2023 LiveLaw (SC) 560 : 2023 INSC 642

Code of Criminal Procedure, 1973; Section 482 – Accused not filing petition to quash FIR / chargesheet has no relevance in deciding bail application. (Para 25 - 28) Teesta Atul Setalvad v. State of Gujarat, 2023 LiveLaw (SC) 554 : 2023 INSC 637

Code of Criminal Procedure, 1973; Section 482 - It is no part of the business of any of the courts to ascertain what the outcome of the trial could be, ~ conviction or acquittal of the accused. The small window that the law, through judicial precedents, provides is to look at the allegations in the FIR and the materials collected in course of investigation, without a rebuttal thereof by the accused, and to form an opinion upon consideration thereof that an offence is indeed not disclosed from it. Unless the prosecution is shown to be illegitimate so as to result in an abuse of the process of law, it would not be proper to scuttle it. (Para 17) Supriya Jain v. State of Haryana, 2023 LiveLaw (SC) 494 : 2023 INSC 595

Code of Criminal Procedure, 1973; Section 482 - Trend of projecting a purely civil financial dispute as a criminal matter with a view to intimidate and in abuse of the criminal process - In “Priyanka Srivastava Vs. State of U.P.”, (2015) 6 SCC 287, this Court had noticed that taking recourse to criminal law by bypassing statutory remedies to bring the financial institutions on their knees, has the inherent potentiality to affect the marrows of economic health of the nation. Further, in “Vijay Kumar Ghai & Anr. Vs. State of W.B. & Ors.” (2022) 7 SCC 124, this Court quashed the criminal proceedings being abuse of law in a purely civil financial dispute and being a case of forum shopping. Despite these judgments, continuation of such a trend appears extremely disturbing. Gagan Baba v. Samit Mandal, 2023 LiveLaw (SC) 500

Code of Criminal Procedure, 1973; Section 482, 397 - The principles to be borne in mind with regard to quashing of a charge / proceedings either in exercise of jurisdiction under Section 397 Cr.P.C. or Section 482 Cr. P.C. or together. (Para 17) Supriya Jain v. State of Haryana, 2023 LiveLaw (SC) 494 : 2023 INSC 595

Code of Criminal Procedure, 1973; Sections 319, 190 - The exercise of power under Section 319 Cr.P.C. is not at the initial stage where cognizance is taken of the offence and the summoning order is passed before committal of the matter to the Sessions Court. That power exercised under Section 190 of the Cr.P.C. is quite distinct from the power exercised by the Trial Court/Sessions Court under Section 319 Cr.P.C - Scope of Section 319 CrPC discussed. (Para 22-27) Yashodhan Singh v. State of U.P., 2023 LiveLaw (SC) 576 : 2023 INSC 652

Code of Criminal Procedure, 1973; Sections 319, 227 - When power is exercised the under Section 319 Cr.P.C. to summon a person to be added as an accused in the trial to be tried along with other accused, such a person cannot seek discharge as the court would have exercised the power under Section 319 Cr.P.C. based on a satisfaction derived from the evidence that has emerged during the evidence recorded in the course of trial and such satisfaction is of a higher degree than the satisfaction which is derived by the court at the time of framing of charge. (Para 24) Yashodhan Singh v. State of U.P., 2023 LiveLaw (SC) 576 : 2023 INSC 652

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Special Leave Petition challenging a report of the Advisory Board / Opinion of the Board under the COFEPOSA Act is not maintainable. Union of India v. Dharanessh Raji Shetty, 2023 LiveLaw (SC) 547

Continuing trend of projecting purely civil financial dispute as criminal matter 'extremely disturbing'. Gagan Baba v. Samit Mandal, 2023 LiveLaw (SC) 500

Death by accidental firing : Supreme Court converts conviction of cop from Section 302 to Section 304A IPC. Arvind Kumar v. State, NCT of Delhi, 2023 LiveLaw (SC) 539 : 2023 INSC 622

Downright Bizarre' : Supreme Court on High Court Judgment resulting in different jail terms for convicts in the same offence. Uggarsain v. The State of Haryana, 2023 LiveLaw (SC) 492 : 2023 INSC 587

Evidence Act, 1872; Section 118 - Criminal Trial - Child Witness - Trial Judge's duty to record his opinion that the child is able to understand the questions put to him and that he is able to give rational answers to the questions put to him - The Trial Judge must also record his opinion that the child witness understands the duty of speaking the truth and state why he is of the opinion that the child understands the duty of speaking the truth. Before recording evidence of a minor, it is the duty of a Judicial Officer to ask preliminary questions to him with a view to ascertain whether the minor can understand the questions put to him and is in a position to give rational answers. The Judge must be satisfied that the minor is able to understand the questions and respond to them and understands the importance of speaking the truth. Therefore, the role of the Judge who records the evidence is very crucial. He has to make a proper preliminary examination of the minor by putting appropriate questions to ascertain whether the minor is capable of understanding the questions put to him and is able to give rational answers. It is advisable to record the preliminary questions and answers so that the Appellate Court can go into the correctness of the opinion of the Trial Court. (Para 7-9) Pradeep v. State of Haryana, 2023 LiveLaw (SC) 501 : 2023 INSC 599

Evidence Act, 1872; Section 45 - If this opinion is read with the opinion dated 18th August 1995, it is apparent that if the change lever is not in a safety position, the firearm can be cocked by entangling with a chain. (Para 13) Arvind Kumar v. State, NCT of Delhi, 2023 LiveLaw (SC) 539 : 2023 INSC 622

Evidence Act, 1872; Section 6 - Assuming that the statements attributed to the appellant and PW-12 were in fact made, the conduct of the appellant in making the said statement becomes relevant in view of Section 6. Section 6 is applicable to facts that are not in issue. Such facts become relevant only when the same satisfies the tests laid down in Section 6. Hence, the statement of an accused to which Section 6 is applicable cannot be treated as a confession of guilt. The statement becomes relevant which can be read in evidence as it shows the conduct of the appellant immediately after the incident. (para 18) Arvind Kumar v. State, NCT of Delhi, 2023 LiveLaw (SC) 539 : 2023 INSC 622

Expeditious trial of terror attack cases necessary: Supreme Court says delay in 1996 Lajpat Nagar blast case compromised national security. Mohd Naushad v. State (Govt. of NCT of Delhi), 2023 LiveLaw (SC) 508 : 2023 INSC 605

Extra judicial confession - Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The extrajudicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support. (Para 12) Pritinder Singh @ Lovely v. State of Punjab, 2023 LiveLaw (SC) 516 : 2023 INSC 614

Guilty Intention' vs 'Guilty Knowledge' : Supreme Court explains fine distinction between two parts of Section 304 IPC. Anbazhagan v. State, 2023 LiveLaw (SC) 550 : 2023 INSC 632

Land scams in India have been a persistent issue, involving fraudulent practices and illegal activities related to land acquisition, ownership, and transactions. Scammers often create fake land titles, forge sale deeds, or manipulate land records to show false ownership or an encumbrance free status. Organized criminal networks often plan and execute these intricate scams, exploiting vulnerable individuals and communities, and resorting to intimidation or threats to force them to vacate their properties. These land scams not only result in financial losses for individuals and investors but also disrupt development projects, erode public trust, and hinder socio-economic progress. (Para 25) Pratibha Manchanda v. State of Haryana, 2023 LiveLaw (SC) 514 : 2023 INSC 612

Mere possession of extremist literature not 'terrorist activity' under UAPA; No 'credible evidence' against Vernon & Arun. Vernon v. State of Maharashtra, 2023 LiveLaw (SC) 575 : 2023 INSC 655

Modality proposed by Calcutta High Court to CBI for filing appeals not a mandate. Central Bureau of Investigations v. S.R. Ramamani, 2023 LiveLaw (SC) 558

Murder case - 'Cruel' is a relative term; if its ordinary meaning is used, exception 4 of Section 300 IPC can never be applied. Gursewak Singh v. Union of India, 2023 LiveLaw (SC) 571 : 2023 INSC 648

Murder case based on circumstantial evidence - Death caused by firearms - In view of the serious doubt with regard to the credibility of the witnesses on the issue of extra-judicial confession and last seen theory, the failure to examine Ballistic Expert would be a glaring defect in the prosecution case - Prosecution has failed to prove the case beyond reasonable doubt and, as such, the accused are entitled to benefit of doubt - Accused acquitted. Pritinder Singh @ Lovely v. State of Punjab, 2023 LiveLaw (SC) 516 : 2023 INSC 614

Narcotic Drugs and Psychotropic Substances Act, 1985 - Conviction liable to be set aside if samples weren't drawn in magistrate's presence as per Section 52A. Simarnjit Singh v. State of Punjab, 2023 LiveLaw (SC) 570

Narcotic Drugs and Psychotropic Substances Act, 1985 - In case of prolonged incarceration, liberty will override embargo under Section 37 : Supreme Court grants bail. Rabi Prakash v. State of Odisha, 2023 LiveLaw (SC) 533

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 37 - In case of prolonged incarceration, conditional liberty will override the statutory embargo under Section 37 of the Act. Prolonged incarceration is against fundamental right guaranteed under Article 21, ie, protection of life and personal liberty. (Para 4) Rabi Prakash v. State of Odisha, 2023 LiveLaw (SC) 533

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 52A - Evidence Act, 1872; Section 114(g) - Section 52A of the NDPS Act is a mandatory rule of evidence which requires the physical presence of a Magistrate followed by an order facilitating his approval either for certifying an inventory or for a photograph taken apart from list of samples drawn - Before any proposed disposal / destruction mandate of Section 52A of the NPDS Act requires to be duly complied with starting with an application to that effect. A Court should be satisfied with such compliance while deciding the case. The onus is entirely on the prosecution in a given case to satisfy the Court when such an issue arises for consideration. Production of seized material is a factor to establish seizure followed by recovery - Provisions of the NDPS Act are both stringent and rigorous and therefore the burden heavily lies on the prosecution. Non-production of a physical evidence would lead to a negative inference within the meaning of Section 114(g) of the Indian Evidence Act. (Para 6-9) Mangilal v. State of Madhya Pradesh, 2023 LiveLaw (SC) 549 : 2023 INSC 634

Narcotics Drugs and Psychotropic Substances Act, 1985; Section 52-A - the process of drawing of samples under Section 52-A of the NDPS Act has to be in the presence and under the supervision of the Magistrate. The entire exercise of collecting the sample must be certified by the Magistrate to be correct. Simarnjit Singh v. State of Punjab, 2023 LiveLaw (SC) 570

Negotiable Instruments Act, 1881; Section 143A(1) - Where a cheque is dishonoured, the interim compensation can be directed to be paid only after the accused has pleaded not guilty. Pawan Bhasin v. State of U.P., 2023 LiveLaw (SC) 537

No Overt Act' : Supreme Court set aside conviction under Section 323 r/w 34 IPC. Boini Mahipal v. State of Telangana, 2023 LiveLaw (SC) 546 : 2023 INSC 627

Not necessary to give opportunity of hearing to person summoned u/section 319 Cr.P.C. before adding him as accused. Yashodhan Singh v. State of U.P., 2023 LiveLaw (SC) 576 : 2023 INSC 652

Passports Act, 1967; Section 10 - Without impounding of the passport, the Passport Authority cannot unauthorizedly retain a passport handed over by the Police in the name of a pending criminal case. (Para 11) Chennupati Kranthi Kumar v. State of Andra Pradesh, 2023 LiveLaw (SC) 565 : 2023 INSC 645

Penal Code, 1860 - Section 180 IPC can't be applied against a person for refusing to sign statement given to police : Supreme Sourt castigates DYSP. Supriya Jain v. State of Haryana, 2023 LiveLaw (SC) 494 : 2023 INSC 595

Penal Code, 1860 - Sections 302, 307, 411, 436 and 120B - Explosive Substances Act, 1908; Section 5 - In view of the severity of the offence resulting in deaths of innocent persons and the role played by each accused person, all these accused persons are sentenced to imprisonment for life, without remission, extending to natural life. (Para 212- 213) Mohd Naushad v. State (Govt. of NCT of Delhi), 2023 LiveLaw (SC) 508 : 2023 INSC 605

Penal Code, 1860, Section 498A, 323 / 504 / 506 - Dowry Prohibition Act, 1961; Section 3 & 4 - Code of Criminal Procedure, 1973; Section 438 - Matrimonial Offences - Denial of anticipatory bail and a further direction to surrender before the Court and seek regular bail – Held, there are no startling features or elements that stand out or any exceptional fact disentitling the appellant to the grant of anticipatory bail. Once the chargesheet was filed and there was no impediment, at least on the part of the accused, the court having regard to the nature of the offences, the allegations and the maximum sentence of the offences they were likely to carry, ought to have granted the bail as a matter of course. However, the court did not do so but mechanically rejected and, virtually, to rub salt in the wound directed the appellant to surrender and seek regular bail before the Trial Court. Therefore, the High Court fell into error in adopting such a casual approach. The impugned order of rejecting the bail and directing the appellant, to surrender and later seek bail, therefore, cannot stand, and is hereby set aside. (Para 12) Md. Asfak Alam v. State of Jharkhand, 2023 LiveLaw (SC) 583 : 2023 INSC 660

Penal Code, 1860; Exception 4 to Section 300 - The term 'cruel manner' is a relative term. Exception 4 applies when a man kills another. By ordinary standards, this itself is a cruel act - If we assign a meaning to the word ‘cruel’ used in exception which is used in common parlance, in no case exception 4 can be applied. (Para 11) Gursewak Singh v. Union of India, 2023 LiveLaw (SC) 571 : 2023 INSC 648

Penal Code, 1860; Section 149 - For attracting the offence under Section 149 IPC, one simply has to be a part of an unlawful assembly -Any specific individual role or act is not material. No overt act needs to be assigned to a member of an unlawful assembly. (Para 4) Sandeep Kumar v. State of Haryana, 2023 LiveLaw (SC) 573 : 2023 INSC 654

Penal Code, 1860; Section 180 - Code of Criminal Procedure, 1973; Section 162 - No statement made by a person to a police officer in the course of any investigation under Chapter XII of the Cr.P.C., which is reduced to writing, is required to be signed by the person making the statement - Section 180 of the IPC gets attracted only if a statement is refused to be signed which a public servant is legally competent to require the person making the statement to sign. (Para 22) Supriya Jain v. State of Haryana, 2023 LiveLaw (SC) 494 : 2023 INSC 595

Penal Code, 1860; Section 299, 302 - Assuming that when the appellant approached the deceased to stop him from using the telephone, he was aware that the change lever was not in a safety position, it is not possible to attribute knowledge to him that by his failure to keep SAF in the safety position, he was likely to cause the death of the deceased. Thus, by no stretch of the imagination, it is a case of culpable homicide as defined under Section 299 of IPC as the existence of none of the three ingredients incorporated therein was proved by the prosecution. (Para 19) Arvind Kumar v. State, NCT of Delhi, 2023 LiveLaw (SC) 539 : 2023 INSC 622

Penal Code, 1860; Section 302 and 304 Part 1 - Appellant's conviction altered from Section 302 IPC to Section 304 Part 1 IPC. Gursewak Singh v. Union of India, 2023 LiveLaw (SC) 571 : 2023 INSC 648

Penal Code, 1860; Section 302 r/w. 34 - Neither PW-3 nor PW-6 could identify any of the three accused and they did not depose that the three policemen involved in the crime were those who were facing trial. PW15’s presence was not confirmed by PW3 and PW6 and his conduct of remaining silent for over a week creates a lingering doubt as to whether he was a witness set up on advise, particularly, when in his first statement was not to the investigating agency but made on an affidavit prepared by a lawyer, who simultaneously prepared three affidavits identically worded. (Para 29) Central Bureau of Investigation v. Shyam Bihari, 2023 LiveLaw (SC) 542 : 2023 INSC 623

Penal Code, 1860; Section 302 r/w. 34 - The circumstance that the accused persons were required to patrol that area and had left the police station for that end on that fateful night is a circumstance which is not conclusive as to turn the tables on the accused, inasmuch as the patrolling area covered two villages. It may be possible that the accused arrived at the spot late, when the incident had already taken place, and to chase away the miscreants, fired shots from their service rifles. The circumstances ought to have formed a chain so far complete as to indicate that in all human probability it were the persons facing trial and none else who committed the crime. (Para 32) Central Bureau of Investigation v. Shyam Bihari, 2023 LiveLaw (SC) 542 : 2023 INSC 623

Penal Code, 1860; Section 302 r/w. 34 - The deceased did not die of a rifle bullet injury. Rather, he died from a .12 bore gunshot which could not be ascribed to rifles issued to the accused persons. The continued presence of the accused at the spot is a circumstance which goes in favour of the accused, being a conduct that belies a guilty mind. According to the prosecution’s own case, the accused persons, three in number, had a rifle each with 50 rounds. Admittedly, some of the empty cartridges found at the spot, as per the ballistic expert report, were not fired from the rifle issued to the accused. This is indicative of presence of some other rifle also. Whose rifle it was, the prosecution evidence is silent. Here the circumstances found proved do not constitute a chain so far complete as to indicate that in all human probability it were the accused persons and no one else who committed the crime. In such a situation, there was no option for the trial court but to extend the benefit of doubt to the accused. (Para 30, 31) Central Bureau of Investigation v. Shyam Bihari, 2023 LiveLaw (SC) 542 : 2023 INSC 623

Penal Code, 1860; Section 304 Part II and 149 - Different sentence for the convicts for the same offence - The impugned judgment fell into error in not considering the gravity of the offence. Having held all the accused criminally liable, under Section 304 Part II read with Section 149 IPC and also not having found any distinguishing feature in the form of separate roles played by each of them, the imposition of the “sentence undergone” criteria, amounted to an aberration, and the sentencing is for that reason, flawed. This court is, therefore, of the view that given the totality of circumstances (which includes the fact that the accused have been at large for the past four years), the appropriate sentence would be five years rigorous imprisonment. (Para 16) Uggarsain v. The State of Haryana, 2023 LiveLaw (SC) 492 : 2023 INSC 587

Penal Code, 1860; Section 304A - There is a failure on the part of the appellant who was holding a sophisticated automatic weapon to ensure that the change lever was always kept in a safety position. This was the minimum care that he was expected to take while he approached the deceased. Thus, there is gross negligence on the part of the appellant which led to a loss of human life. (Para 20) Arvind Kumar v. State, NCT of Delhi, 2023 LiveLaw (SC) 539 : 2023 INSC 622

Penal Code, 1860; Section 308 - Attempt to Culpable Homicide - Conviction under section 308 IPC not sustainable if accused had no intention or knowledge to cause death. Abdul Ansar v. State of Kerala, 2023 LiveLaw (SC) 510 : 2023 INSC 602

Penal Code, 1860; Section 338 - Causing grievous hurt by act endangering life or personal safety of others - At that relevant time, the bus was overcrowded. There were a number of passengers waiting at the bus stop. Therefore, it was the duty of the conductor to take care of the passengers. Hence, before he rang the bell and gave a signal to the driver to start the bus, he ought to have verified whether all passengers had safely boarded the bus. He could have ascertained this from accused no.3 – cleaner who was standing near the door of the bus. However, he did not take that precaution and care which he was under an obligation to take. Therefore, the accused acted rashly and negligently as he did not perform his duty of being careful. The accused knew that at the relevant bus stop, a large number of students were waiting to take the bus to reach their school and therefore, the accused ought to have verified whether all the passengers had properly boarded the bus before giving the signal to the driver. However, he did not verify whether the passengers had properly boarded the bus. Therefore, he is guilty of negligence as he failed to perform his duty. In fact, this was an act of recklessness on his part. The fact is that due to the negligence on the part of the accused, human life was endangered. (Para 14) Abdul Ansar v. State of Kerala, 2023 LiveLaw (SC) 510 : 2023 INSC 602

Penal Code, 1860; Section 420 - Code of Criminal Procedure, 1973; Section 438 - It is considered appropriate to remind the high courts and the sessions courts not to be unduly swayed by submissions advanced by counsel on behalf of the accused in the nature of undertakings to keep in deposit/repay any amount while seeking bail under section 438 of the Cr. PC. and incorporating a condition in that behalf for deposit/payment as a pre-requisite for grant of bail. (Para 2) Ramesh Kumar v. State NCT of Delhi, 2023 LiveLaw (SC) 496 : 2023 INSC 596

Penal Code, 1860; Section 420 - Code of Criminal Procedure, 1973; Section 438 - In the context of grant of bail, all such conditions that would facilitate the appearance of the accused before the investigating officer/court, unhindered completion of investigation/trial and safety of the community assume relevance. However, inclusion of a condition for payment of money by the applicant for bail tends to create an impression that bail could be secured by depositing money alleged to have been cheated. That is really not the purpose and intent of the provisions for grant of bail. (Para 26) Ramesh Kumar v. State NCT of Delhi, 2023 LiveLaw (SC) 496 : 2023 INSC 596

Penal Code, 1860; Section 80 - Defence of Accident rejected - The Trial Court and the High Court held that the defense of accidental firing cannot be accepted and that the act of firing bullets by the appellant was intentional. The Court rejected the defence of the accident pleaded by the appellant by taking recourse to Section 80 of IPC. (Para 8) Arvind Kumar v. State, NCT of Delhi, 2023 LiveLaw (SC) 539 : 2023 INSC 622

Penal Code, 1860; Sections 299, 300, 304 - Difference between the two parts of Section 304 - Under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC - If the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is ‘guilty intention ', whereas the second part would apply when there is no such intention, but there is ‘guilty knowledge’. (Para 60) Anbazhagan v. State, 2023 LiveLaw (SC) 550 : 2023 INSC 632

Penal Code,1860; Section 34 - In the absence of any incriminating material or other corroborative evidence pointing to the participation of appellants in the incident, the conviction of appellants under Section 323 read with Section 34 of IPC cannot be sustained. (Para 12) Boini Mahipal v. State of Telangana, 2023 LiveLaw (SC) 546 : 2023 INSC 627

Prohibition of cow slaughter to be decided by legislature, court can't compel law making. Mathala Chandrapati Rao v Union of India, 2023 LiveLaw (SC) 535

Protection of Children from Sexual Offences Act, 2012 - POCSO Act was enacted to provide more stringent punishments for the offences of child abuse of various kinds and that is why minimum punishments have been prescribed in Sections 4, 6, 8 and 10 of the POCSO Act for various categories of sexual assaults on children. Hence, Section 6, in its plain language, leaves no discretion to the Court and there is no option but to impose the minimum sentence. (Para 12) State of U.P. v. Sonu Kushwaha, 2023 LiveLaw (SC) 502 : 2023 INSC 603

Protection of Children from Sexual Offences Act, 2012; Section 6 - Appellant concurrently convicted under Section 6 of the POCSO Act as well as Section 10 of the Prohibition of Child Marriage Act - Conviction set aside. P. Yuvaprakash v. State, 2023 LiveLaw (SC) 538 : 2023 INSC 626

Protection of Children from Sexual Offences Act, 2012; Section 6 - Accused had put his penis into mouth of the victim aged about 10 years and discharged semen - The accused has committed an offence of aggravated penetrative sexual assault as he has committed penetrative sexual assault on a child below twelve years. (Para 7-11) State of U.P. v. Sonu Kushwaha, 2023 LiveLaw (SC) 502 : 2023 INSC 603

Protection of Children from Sexual Offences Act, 2012; Section 94 - Juvenile Justice (Care and Protection of Children) Act, 2015; Section 94 - Wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the Juvenile Justice Act - School transfer certificate and extracts of the admission register, are not what Section 94 (2) (i) mandate - Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through “an ossification test” or “any other latest medical age determination test” conducted on the orders of the concerned authority, i.e. Committee or Board or Court. P. Yuvaprakash v. State, 2023 LiveLaw (SC) 538 : 2023 INSC 626

School transfer certificate cannot be relied upon to determine POCSO victim age. P. Yuvaprakash v. State, 2023 LiveLaw (SC) 538 : 2023 INSC 626

Supreme Court dismisses West Bengal govt's plea challenging HC direction to transfer ram navami violence cases to NIA. State of West Bengal v. Suvendu Adhikari, 2023 LiveLaw (SC) 569 : 2023 INSC 647

Supreme Court grants bail to Teesta Setalvad; calls Gujarat HC observations 'perverse', 'contradictory'. Teesta Atul Setalvad v. State of Gujarat, 2023 LiveLaw (SC) 554 : 2023 INSC 637

Supreme Court grants bail to Vernon Gonsalves and Arun Ferreira in Bhima Koregaon case. Vernon v. State of Maharashtra, 2023 LiveLaw (SC) 575 : 2023 INSC 655

Supreme Court upholds acquittal of three policemen in 36 year old murder case; dismisses CBI's appeal. Central Bureau of Investigation v. Shyam Bihari, 2023 LiveLaw (SC) 542 : 2023 INSC 623

Teesta Setalvad case | 'What investigation was done in 24 hours? What was the State doing for 20 yrs?' : questions by Supreme Court to Gujarat Police. Teesta Atul Setalvad v. State of Gujarat, 2023 LiveLaw (SC) 554 : 2023 INSC 637

Terrorism and Disruptive Activities - Expeditious Trial of terror attack cases necessary - Delay in 1996 Lajpat Nagar blast case compromised national security – The Supreme Court while sentencing to life imprisonment without remission four Jammu and Kashmir Islamic Front (JKIF) militants convicted for their role in the 1996 Lajpat Nagar bomb blast, not only underscored the importance of speedy trials, but also considered the time elapsed since the terror attack as well as the date of conviction as mitigating circumstances in not awarding the death penalty. (Para 208) Mohd Naushad v. State (Govt. of NCT of Delhi), 2023 LiveLaw (SC) 508 : 2023 INSC 605

The failure to prove the existence of the motive is one of the circumstances which makes the prosecution case regarding intentional firing by the appellant not worthy of acceptance. (Para 9) Arvind Kumar v. State, NCT of Delhi, 2023 LiveLaw (SC) 539 : 2023 INSC 622

The Mandate of Section 52A NDPS Act has to be duly complied before disposal / destruction of seized narcotic substances. Mangilal v. State of Madhya Pradesh, 2023 LiveLaw (SC) 549 : 2023 INSC 634

Trial Courts should make proper preliminary examination of child witnesses before recording their evidence. Pradeep v. State of Haryana, 2023 LiveLaw (SC) 501 : 2023 INSC 599

UAPA - 'Watali' precedent won't apply if evidence is of low probative value on surface level analysis. Vernon v. State of Maharashtra, 2023 LiveLaw (SC) 575 : 2023 INSC 655

Unlawful Activities (Prevention) Act, 2002 - In National Investigation Agency v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1 held that the expression “prima facie true” would mean that the materials / evidence collated by the investigating agency in reference to the accusation against the accused concerned in the chargesheet must prevail, unless overcome or disproved by other evidence, and on the face of it, materials must show complicity of such accused in the commission of the stated offences. What this ratio contemplates is that on the face of it, the accusation against the accused ought to prevail. In our opinion, however, it would not satisfy the prima facie “test” unless there is at least surface-analysis of probative value of the evidence, at the stage of examining the question of granting bail and the quality or probative value satisfies the Court of its worth. In the case of the appellants, contents of the letters through which the appellants are sought to be implicated are in the nature of hearsay evidence, recovered from co-accused. Moreover, no covert or overt terrorist act has been attributed to the appellants in these letters, or any other material forming part of records of these two appeals. Reference to the activities of the accused are in the nature of ideological propagation and allegations of recruitment. No evidence of any of the persons who are alleged to have been recruited or have joined this “struggle” inspired by the appellants has been brought before us. Thus, we are unable to accept NIA’s contention that the appellants have committed the offence relating to support given to a terrorist organisation. (Para 36) Vernon v. State of Maharashtra, 2023 LiveLaw (SC) 575 : 2023 INSC 655

Unlawful Activities (Prevention) Act, 2002 - In the case of Zahoor Ahmad Shah Watali, the factors for granting bail under normal circumstances were discussed. It was held that the nature and seriousness of the offences, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tempered with; the larger interest of the public or the State would be relevant factors for granting or rejecting bail. Juxtaposing the appellants’ case founded on Articles 14 and 21 of the Constitution of India with the aforesaid allegations and considering the fact that almost five years have lapsed since they were taken into custody, we are satisfied that the appellants have made out a case for granting bail. Allegations against them no doubt are serious, but for that reason alone bail cannot be denied to them. While dealing with the offences under Chapters IV and VI of the 1967 Act, we have referred to the materials available against them at this stage. These materials cannot justify continued detention of the appellants, pending final outcome of the case under the others provisions of the 1860 Code and the 1967 Act. (Para 43) Vernon v. State of Maharashtra, 2023 LiveLaw (SC) 575 : 2023 INSC 655

Unlawful Activities (Prevention) Act, 2002 - Mere participation in seminars by itself cannot constitute an offence under the bail-restricting Sections of the 1967 Act. (Para 29) Unlawful Activities (Prevention) Act, 2002; Section 43D - A bail restricting clause cannot denude the jurisdiction of a Constitutional Court in testing if continued detention in a given case would breach the concept of liberty enshrined in Article 21 of the Constitution of India, would apply in a case where such a bail-restricting clause is being invoked on the basis of materials with prima facie low-probative value or quality. (Para 42 - 43) Vernon v. State of Maharashtra, 2023 LiveLaw (SC) 575 : 2023 INSC 655

Unlawful Activities (Prevention) Act, 2002; Section 15 - Mere possession of literature even if it inspires or propagates violence by itself would neither amount to a ‘terrorist act’ within the meaning of Section 15 of the Act, nor any other offences under Chapters IV and VI of the Act. (Para 26) Vernon v. State of Maharashtra, 2023 LiveLaw (SC) 575 : 2023 INSC 655