0

Karnataka High Court: Accused Discharged in Suicide Abetment Case Due to Insufficient Evidence

Case title: ONKARAPPA G H & ORS VS THE STATE OF KARNATAKA

Case no.: CRIMINAL REVISION PETITION NO. 141 OF 2024

Dated on: 21st may 2024

Quorum: HON’BLE MR JUSTICE S RACHAIAH

FACTS OF THE CASE

The case of the prosecution is that the deceased Shruthi was working as a maid in the house of Sri. G.H. Omkarappa and Smt. Anusuyamma at Shivamogga. The deceased was staying with them since two years. The complainant being a mother of the deceased-Shruthi used to visit the house where Shruthi was working often and she was enquiring about the welfare of her daughter. Such being the fact, she has received a message from the reliable source that her daughter committed suicide in the house of the accused around 2.00 pm. Immediately after receiving the said information, the complainant and others went to Shivamogga and learnt that the deceased Shruthi committed suicide inside the room and it was bolted from inside. It is further stated in the complaint that, the door was opened with the help of the localities in the presence of police. On opening the said room, the complainant found that her daughter was hanging from the ceiling fan and also noticed a chit said to have written by the deceased. Hence, she lodged a complaint. Upon the complaint, the jurisdictional police registered a case in Cr.No.207/2015 for the offence under Section 306 read with Section 34 of IPC. After conducting investigation submitted charge sheet. Being aggrieved by filing of the charge sheet, the petitioner herein filed an application under Section 227 of Code of Criminal Procedure Act (for short, ‘Cr.P.C.’). The said application came to be rejected by the Trial Court. Hence, this revision.

ISSUES

  • Whether the accused can be charged under Section 306 of the IPC for abetting suicide based on the evidence provided in the complaint and charge sheet.
  • Whether the contents of the complaint and charge sheet provide sufficient grounds to proceed against the accused and whether they disclose the necessary elements of instigation or harassment required for abetment of suicide.
  • Whether the Trial Court’s decision to reject the application for discharge was justified or if it amounted to an abuse of process of law.

LEGAL PROVISINS

Indian Penal Code (IPC), Section 306: Abetment of Suicide Section 306 of the IPC deals with the abetment of suicide. It states that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Indian Penal Code (IPC), Section 34: Acts Done by Several Persons in Furtherance of Common Intention Section 34 deals with acts done by several persons in furtherance of a common intention. It states that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

Code of Criminal Procedure (Cr.P.C.), Section 227: Discharge Section 227 of the Cr.P.C. provides the power to discharge. It states that if, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for doing so.

CONTENTIONS OF THE APPELLANT

Arun Shyam, learned Senior Counsel for Sri. Suyog  Herele, learned counsel for the petitioner and Sri. Rahul Rai, learned High Court Government Pleader for the State. It is the submission of learned Senior Counsel that the findings of the Trial Court in rejecting the application for discharge is erroneous and against to the facts of the case. Hence, the same is liable to be set aside. It is further submitted that the contents of the charge sheet do not disclose the ingredients of Section 306 of IPC. In fact, the complainant in her complaint stated that she was visiting the house of the accused and she was enquiring about the welfare of her daughter. The averments of the complaint did not disclose either instigation or harassment to commit suicide. It is further submitted that a letter said to have been found in the room where the deceased committed suicide clearly discloses that, the deceased was loving a boy and she mentioned the phone numbers and narrated certain facts in it. However, the deceased mentioned in the end of the said letter, that accused are responsible for her suicide. That itself is not sufficient to attract the ingredients of instigation or abetment to commit suicide. Such being the fact, asking the petitioner to face the trial, certainly, amounts to an abuse of process of law. Therefore, the petition deserves to be allowed. Making such submissions, the learned Senior Counsel prays to allow the petition.

CONTENTIONS OF THE RESPONDENTS

The learned High Court Government Pleader vehemently justified the order of rejection passed by the Trial Court and submitted that as per the averments of the complaint, the deceased Shruthi was working in the house of the accused as a maid and she committed suicide in their house by leaving death note. The said death note contains some facts and the same are required to be proved during full-fledged trial. In case, if the petition is allowed, the facts remain unchallenged. Therefore, the petition deserves to be dismissed. Making such submission, the learned High Court Government Pleader prays to dismiss the petition. Having heard learned counsel for the respective parties and also after having perused the findings of the Trial Court, the Trial Court while rejecting the application opined that at the stage of framing of charges, the Court has to see only prima-facie material and further opined that the contents of the death note are required to be proved during trial. It is settled principles of law that in order to convict a person under Section 306 of IPC, there has to be a clear mens rea to commit the offence. Further, it also requires an active act or direct act which lead the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide.

 

COURT’S ANALYSIS AND JUDGEMENT

In the present case, either the averments of the complaint or averments of the charge sheet do not disclose neither mens-rea nor instigation. Even assuming that the contents of the death note are true, it can be inferred from the averments that the deceased was loving a boy and she mentioned the phone numbers and expressed her willingness to meet him and at the same time, she mentioned the reason for committing suicide. “Mere mentioning that the accused are responsible for committing suicide “, is not sufficient to attract the ingredients of abetment. Such being the facts, asking accused to face the trial, certainly would be considered as an abuse of process of law. Therefore, the petition deserves to be allowed. It is needless to say that the Trial Court while considering the application for discharge must satisfy as to whether the material placed in the charge sheet are sufficient to record the conviction. The Hon’ble Supreme Court time and again reiterated that the Trial Court shall not act as a post office between prosecution and investigating agency. Of course, the Trial Court while framing the charge must prima facie satisfy that the materials are sufficient to frame the charge. However, the said word “prima facie” would mean that, even if no other material is placed by the investigating agency, the conviction can be recorded based on the charge sheet materials. The Criminal Revision Petition is allowed. The order dated 18.12.2023 in S.C No.126/2023 passed by the Prl. District and Sessions Judge, Shivamogga, is hereby set aside. The petitioners are discharged for the offence punishable under Sections 306 read with Section 34 of IPC.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Judgement Reviewed by – HARIRAGHAVA JP

Click here to read the judgement

0

Judicial intervention: The High Court of Karnataka strikes down proclamation order in pujar bitcoin case  

Case title:   SHRIDHAR K PUJAR VS STATE OF KARNATAKA

Case no.: CRIMINAL PETITION NO. 2380 OF 2024 C/W CRIMINAL PETITION NO. 2916 OF 2024 CRIMINAL PETITION NO. 2925 OF 2024

Dated on: 02th May 2024

Quorum: HON’BLE MR JUSTICE V SRISHANANDA

FACTS OF THE CASE

The Petitioner is a Police Officer of Dy.S. P rank. Allegations are leveled against him that he was involved in interfering with the true course of justice inasmuch as he had interfered with the investigation of Crime Nos.91/2020 and 287/2020 registered in the file of K.G. Nagara Police Station and Ashok Nagara Police Station respectively. In respect of those crimes when the investigation was under process, the petitioner said to have been found in the company of the Lawyer who represented the accused therein. He was required to accompany the Police personnel who had spotted him in the car. At that juncture, he escaped from the clutches and he is not available to the Police is the allegation. Based on the said incident, a case came to be registered against the petitioner in Crime No.19/2024 and Crime No.1/2024 and attempts were made by the petitioner to obtain an order of grant of Anticipatory Bail were rejected. It is also submitted that a Coordinate Bench of this Court also rejected the anticipatory bail request of the petitioner and thereafter he is not available to the Investigation Agency. In the meantime, the prosecution has filed an application seeking proclamation as against the petitioner. The material on record discloses that before issuing a Proclamation Order necessary procedural formalities are not carried out and therefore the very issuance of proclamation is questioned by the petitioner in Criminal Petition No.2925/2024. Fact remains that till today the petitioner is not available to the Investigation Agency. In Criminal Petition Nos. 2380/2024 and 2916/2024 the petitioner is seeking quashing of two criminal cases registered in Crime Nos.19/2024 and 1/2024.

 

ISSUES

  • Whether at all the allegations leveled against the petitioner is true or not cannot be decided by this Court at this stage, as the case against the petitioner is still in the inception stage?
  • Whether the issuance of a proclamation order was procedurally correct.
  • Whether the FIRs against the petitioner should be quashed.

LEGAL PROVISIONS

Indian Penal Code (IPC)

Section 343: Punishment for wrongful confinement for three or more days.

Section 344: Punishment for wrongful confinement for ten or more days.

Section 409: Criminal breach of trust by a public servant, or by banker, merchant or agent.

Section 426: Punishment for mischief.

Section 34: Acts done by several persons in furtherance of common intention.

Section 201: Causing disappearance of evidence of offence, or giving false information to screen offender.

Section 204: Destruction of document or electronic record to prevent its production as evidence.

Information Technology (IT) Act, 2000

Section 66: Computer-related offenses, including hacking and unauthorized access.

Section 84C: Punishment for attempt to commit offenses.

Criminal procedure code 1973

Section 482 of the Cr.P.C. Section 482 of Cr.P.C.: Saving of inherent powers of High Court. The section grants inherent powers to the High Court to make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice.

CONTENTIONS OF THE APPELLANT

Sri. Aruna Shyam learned Senior Counsel submits that in view of the directions issued by this Court in the above criminal petitions, he would not press the anticipatory bail application pending in Criminal Petition No.3062/2024.The petitioner challenged the procedural correctness of the proclamation order. He sought quashing of the FIRs registered in Crime Nos. 19/2024 and 1/2024.He expressed willingness to join and cooperate with the investigation.

CONTENTIONS OF THE RESPONDENTS

The prosecution highlighted the petitioner’s non-cooperation and absconding behaviour. The prosecution requested the court to mandate the petitioner’s participation in the investigation.

COURT’S ANALYSIS AND JUDGEMENT          

Having heard the parties and perused the material on record, it is crystal clear that the petitioner is not available to the Investigation Agency till now. The attempts made by the petitioner to submit himself for the process of law by seeking an order of grant of anticipatory bail is turned down by the learned District & Session Judge and a Coordinate Bench of this Court. It is a settled principles of law and requires no emphasis that every accused is presumed to be innocent unless the allegations leveled against him stands proved before the court of law beyond all reasonable doubts. However, the prima facie material would reveal that the petitioner said to be involved in helping the accused in crime No.91/2020. Fact remains that unless the petitioner joins the investigation and cooperates with pending investigation in respect of Crime No.19/2024 and crime No.1/2024 no useful purpose would be served by simply keeping the investigation pending. More so, the petitioner being the Police Officer by himself of Dy. SP rank. Under the above peculiar facts and circumstances of the case and in view of the submissions made on behalf of the petitioner that he would be interested in joining the investigation and cooperate with the investigation to the fullest extent subject to the rights of the petitioner as enshrined under the provisions of Constitution, an arrangement needs to be made which would strike a harmonious balance between the rights of the petitioner and the need of the prosecution. Therefore, without expressing further opinion on the merits of the matter, without holding mini enquiry, if the petitions are disposed of by directing the petitioner to join the investigation and cooperate with the investigation process, would meet the ends of justice. Having said thus, it is settled principles of law that generally FIR cannot be quashed unless it has acted prejudicial to the interest of the petitioner and by the allegation found in the complaint, no case is made out against the accused/petitioner. In the case on hand, there is no special reason for this Court to quash the FIR itself. Criminal Petition No.2925/2024 is Allowed. Order of proclamation passed by the learned Trial Judge as against the petitioner stands quashed, on account of procedural irregularities. Petitioner is at liberty to appear before the Jurisdictional court and subject himself for investigation process. Criminal Petition Nos.2380/2024 and 2916/2024 are Disposed Of with the following conditions: Petitioner shall positively join the investigation on 08.05.2024 by appearing before the Investigating Officer at 9.00 a.m., Investigating Officer is at liberty to take the petitioner to the judicial custody and conclude the custodial investigation on the very same day before 6.00 p.m. Petitioner shall completely cooperate with the Investigation Agency. Prosecution shall not indulge in extra-judicial methods while investigating the matter. On conclusion of the custodial investigation, the petitioner shall be let free by taking a bond in a sum of Rs.2,00,000/- (Rupees Two Lakhs Only) with two sureties to the satisfaction of the Investigation Officer. Further, the petitioner is directed to appear before the Investigation Officer as and when called and shall not in any way tamper the prosecution evidence.  In view of the fact that the petitioner has agreed to join the investigation, bail application if any to be filed by the petitioner shall not be opposed by the prosecution. However, disposal of the present petitions would not come in the way of the petitioner in challenging the final report, if it goes against him.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Judgement Reviewed by – HARIRAGHAVA JP

Click here to read the judgement

0

Factors Considered by Delhi High Court When Granting Bail in Cases Based on Circumstantial Evidence in Heinous Offences

Factors Considered by Delhi High Court When Granting Bail in Cases Based on Circumstantial Evidence in Heinous Offences

Case title: ROSHAN VS THE STATE (GOVT OF NCT OF DELHI)

Case no.: BAIL APPLN. 2478/2023

Dated on: 20TH May 2024

Quorum:  Hon’ble MS. JUSTICE AMIT MAHAJAN.

FACTS OF THE CASE

The present application is filed under Section 439 of the Code of Criminal Procedure, 1973 for seeking bail in FIR No. 321/2016 dated 17.05.2016, registered at Police Station Gokal Puri, for the offences under Section 363 of the Indian Penal Code, 1860 (‘IPC’). Chargesheet was filed against the applicant for the offences under Sections 363/302/201 of the IPC. The FIR was registered on a complaint made by the complainant alleging that his 3-year-old daughter (victim) had taken some money from the wife of his younger brother (the applicant) and gone out to eat some street food. It was alleged that the victim did not come back and despite all efforts, the complainant was unable to find her. On 18.05.2016, information was received that a quarrel had happened at H.No. 455, Gali No. 4/5, Indra Vihar, Mustaf Abad, Delhi 110094. Thereafter, information was received that a dead body had been recovered. It is alleged that the police found that there was no quarrel, but the body of the victim had been recovered from the drawer of the bed of the complainant’s brother, namely, Aftab Alam (the then husband of the applicant), at the aforesaid address. It is the case of the prosecution that the complainant and his brother were living in the same house with their families. It is alleged that the applicant was upset due to the alleged affair between the mother of the victim (sister-in-law of the applicant) and her husband. It is alleged that on the date of the incident, the victim was sleeping and the other family members had gone out, when the applicant murdered the victim out of anger. It is alleged that the applicant disclosed that the applicant closed the mouth of the victim and then tied her mouth with a dupatta. Thereafter, the applicant allegedly threw the victim in her bed. It The applicant allegedly lied that the victim was out playing with other kids on the street. It is alleged that the body of the victim was discovered when the other members of the family noticed the stinking smell coming from the room of the applicant.

ISSUE

Whether the circumstantial evidence presented by the prosecution is sufficient to establish the guilt of the accused beyond a reasonable doubt?

LEGAL PROVISIONS

  1. Indian Penal Code, 1860 (IPC)

Section 363 (Punishment for Kidnapping)

This section deals with the punishment for kidnapping any person from lawful guardianship. The penalty can extend to seven years of imprisonment and also include a fine.

Section 302 (Punishment for Murder)

This section prescribes the punishment for murder. It stipulates that whoever commits murder shall be punished with death or imprisonment for life, and shall also be liable to a fine.

Section 201 (Causing Disappearance of Evidence of Offence, or Giving False Information to Screen Offender)

This section addresses the punishment for anyone who causes the disappearance of evidence or provides false information with the intention of screening an offender. The punishment can vary based on the severity of the primary offence, including imprisonment and fines.

  1. Code of Criminal Procedure, 1973 (CrPC)

Section 439 (Special Powers of High Court or Court of Session regarding Bail)

This section grants the High Court and Court of Session the authority to release an accused person on bail. It allows for the consideration of the nature and gravity of the accusation, the severity of the punishment if convicted, the danger of the accused absconding or tampering with evidence, and other relevant factors.

Section 437(1) (When Bail may be taken in case of non-bailable offence)

This section specifies conditions under which bail can be granted for non-bailable offences, particularly emphasizing special consideration for women, children, and other vulnerable persons

CONTENTIONS OF THE APPELLANT

The learned counsel for the applicant submitted that the applicant has clean antecedents and has been falsely implicated in the present case. He submitted that the father of the applicant had made complaints to the concerned authorities regarding her false implication but no enquiry was done in that regard. He submitted that there is no eye witness in the present case and the entire prosecution story is based on circumstantial evidence. He submitted that the testimony of the witnesses that have been examined are contradictory. He further submitted that the dead body was not recovered at the instance of the applicant. The same was recovered from the then husband of the applicant, who has been discharged without examination. He submitted that the husband of the applicant divorced her while she was in custody. He submitted that the applicant was released on interim bail by a Coordinate Bench of this Court by order dated 27.07.2020 and her interim bail was extended from time to time. He submitted that the applicant was granted interim bail on account of HPC guidelines by the learned Trial Court vide order dated 02.06.2021 as well. He submitted that the applicant had surrendered on time on both instances and had never misused the liberty. He submitted that only 18 out of 30 witnesses have been

examined yet and the formal witnesses are yet to be examined. He submitted that the applicant has spent more than five years in custody and the trial is likely going to take a considerable amount of time.

CONTENTIONS OF THE RESPONDENTS

The learned Additional Public Prosecutor for the State strongly opposed the grant of any relief to the applicant. He submitted that the offences involved in the present case are heinous in nature. He submitted that the victim was last seen with the applicant. He submitted that the nominal roll of the applicant indicates that the jail conduct of the applicant is non-satisfactory. He submitted that the applicant broke jail rules and was involved in a number of other offences while in custody, including her alleged involvement in jail riots. The allegations in the present case are grave and heinous in nature. The victim aged 3 years is alleged to have been killed by the applicant, who also happened to be her aunt, on suspicion that her husband was having an extra-marital relationship with the mother of the deceased victim. It is, however, not disputed that the entire case is primarily based on the alleged extra-judicial confession of the applicant. It is trite law that an extra judicial confession cannot be relied upon unless it inspires confidence or is fully corroborated. Extra judicial confessions are weak pieces of evidence, whereby it is incumbent on the Courts to exercise extra caution while examining the same.

 

COURT’S ANALYSIS AND JUDGEMENT

At this stage, it cannot be denied that there is no direct evidence against the applicant and she has been implicated solely on the basis of the circumstances allegedly leading to the death of the victim, such as the victim having been allegedly last seen with the applicant. It is pertinent to note that the applicant admittedly used to stay in the same house as the victim. It is also not denied that the allegations in the present case are only made by the family members of the victim and the ex-husband of the applicant. There is no eye-witness to the commission of the alleged offence. It is settled law that when the case is based solely on circumstantial evidence, the chain of circumstances has to be so complete that it leaves no reasonable ground for any other conclusion except for the hypothesis of guilt of the accused person. The allegations along with the defences would be considered during the course of the trial. Admittedly, only 18 out of 30 witnesses have been examined till date and the trial would take a considerable period of time. The Hon’ble Apex Court in the case of Union of India v. K.A. Najeeb : AIR 2021 SC 712 held that once it is obvious that a timely trial would not be possible, and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge them on bail. It is also pointed out that the child of the applicant is now in custody her ex-husband, who divorced her during the pendency of the case. The applicant, being a woman, is undeniably entitled to special consideration while dealing with the question of bail, in terms of the proviso to Section 437(1) of the CrPC. In view of the above, the applicant is directed to be released on bail on furnishing a bail bond for a sum of ₹20,000/- with one surety of the like amount, subject to the satisfaction of the Trial Court/Duty MM/ Link MM, on the following conditions:

  1. The applicant shall provide the address where she would be residing after the release and shall not change the address without informing the concerned IO/ SHO;
  2. The applicant shall appear before the learned Trial Court as and when directed;
  3. The applicant shall under no circumstance leave the country without the permission of the Court;
  4. The applicant shall, upon her release, give her mobile number to the concerned IO/SHO and shall keep her mobile phone switched on at all times.

In the event of there being any FIR/ DD entry/ complaint lodged against the applicant, it would be open to the State to seek redressal.  The present application is allowed in the aforesaid terms. It is clarified that the observations made hereinabove are only for the purpose of considering the bail application and the same shall not be deemed to be an expression of opinion on the merits of the case.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Judgement Reviewed by – HARIRAGHAVA JP

Click here to read the judgement

0

Delhi High Court invokes Dostoevsky’s ‘Crime and Punishment’ to reduce sentence of 5 JeM operatives

Delhi High Court invokes Dostoevsky’s ‘Crime and Punishment’ to reduce sentence of 5 JeM operatives

Case titleBILAL AHMAD MIR ALIAS BILAL MIR ALIAS BILLA VS NATIONAL INVESTIGATING AGENCY NEW DELHI

Case no.: CRL.A. 53/2023

Dated on: 20TH May 2024

Quorum:  Hon’ble Mr. Justice SURESH KUMAR KAIT And Hon’ble Mr. Justice MANOJ JAIN.

FACTS OF THE CASE

All the appellants were arraigned as accused in case RC No.08/2019/NIA/DLI. When the learned Trial Court heard arguments and ascertained the charges, they all pleaded guilty. They were accordingly convicted for various offences under IPC (Indian Penal Code, 1860) and (UAPA) Unlawful Activities (Prevention) Act, 1967). However, with respect to appellant Ishfaq Ahmad Bhat (A-7), when the appeal was filed under Section 21 of the National Investigation Agency Act (NIA Act), he challenged the legality of conviction as well, contending that the Trial Court had proceeded on the alleged plea of guilty in a mechanical manner. He asserted that when application under Section 229 of Cr.P.C. was moved before the learned Trial Court, it was, in essence a plea of guilt by way of plea bargaining. According to him, the conviction was not sustainable on the basis of such plea of guilt. Fact, however, remains that during course of consideration of the appeal, additional affidavit was filed stating therein that the appellant was no longer desirous of challenging his plea of guilt and consequent conviction and that he was confining his appeal to the extent of sentence qua those offences for which he had been given life sentence. The present appeals are under Section 21 of National Investigation Agency Act (NIA Act) and are in the nature akin to one mentioned in Section 375 Cr.P.C. which specifies that if any accused pleads guilty and is convicted on the basis of such plea of guilt, there shall be no appeal, except as to the extent or legality of the sentence. 10. Thus, the scope of all the aforesaid appeals is very limited in sphere and only the aspect related to the extent or legality of the sentence is required to be seen, the prayer being that they be given minimum sentence for offence under Section 121A IPC and in relation to appellant Muzaffar Ahmed Bhat, for offence under Section 23 UAPA as well. Eventually, when the charges were ascertained vide order dated 03.09.2022, the learned defense counsel informed the court that they all wanted to plead guilty. They were also made aware in vernacular that if they insisted for pleading guilty, they could be straightaway held guilty and could be sentenced to the maximum of the punishment prescribed under offences for which they had been charged. However, they remained firm. The Appellants, who have spent almost four years in prison, challenge the legality and extent of the sentence with respect to those offences for which they have been given maximum sentence i.e. imprisonment for life. Ms. Nitya Ramakrishnan, Learned Senior Counsel and Sh. Kunal Malik, learned Counsel for appellants have, very fairly, confirmed the same. A bare perusal of the aforesaid chart would, distinctly, reveal that there were many offences which attracted life sentence but despite that learned Trial Court awarded sentence of rigorous imprisonment of five years for most such offences. Reference be made to sentences imposed for commission of offences under Section 18, 18B, 19 of UAPA and Section 4 of ESA. As far as Section 23 UAPA is concerned, only appellant Muzaffar Ahmad Bhat (A-4) has been held guilty and sentenced to life imprisonment.

 

CONTENTIONS OF THE APPELLANT

Ms. Nitya Ramakrishnan, learned Senior Counsel has contended that the appellants never attempted to strike any kind of bargain, which even otherwise was not permissible in law. They all were, actually speaking, utmost remorseful and repentant for the alleged acts attributed to them and without any expectation, they had pleaded guilty before the Court. They were made aware about the fact that they can be meted out maximum sentence, i.e. life sentence. But despite knowing fully well the aforesaid maximum sentence, they chose to plead guilty. It is also contended that though the plea of guilt was without any bargain or expectation, nonetheless, the learned Trial Court did not give due weightage to the mitigating circumstances and handed out life, merely on the basis of the gravity of few such offences i.e. offences under Section 121A IPC and Section 23 UAPA. She contends that if the allegations are considered in toto, it would become very apparent that the crux of the allegations, with respect to all offences together, remained virtually the same. It is argued that Section 18 of UAPA also penalizes conspiracy of a terrorist act or any act preparatory to a commission of a terrorist act. A „terrorist act‟ has been defined under Section 15 of UAPA which is almost akin to what is contained under Section 121A IPC. As per Section 15 of UAPA, „terrorist act‟ is one which is done with the intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India and while learned Trial Court chose to give sentence of mere five years with respect to similar kind of offence under UAPA, it, for totally inexplicable reasons, awarded life sentence under Section 121A IPC. t is, thus, contended that the gravity of the matter should not have been and could not have been the „sole governing circumstance‟. During the course of the arguments, learned counsel for the appellants, in all fairness, contended that their sole contention is that with respect to offences under Section 121A IPC and Section 23 UAPA, any other sentence, instead of maximum sentence may be awarded, while considering the obvious special reasons existing in favour of appellants.

CONTENTIONS OF THE RESPONDENTS

Sh. Gautam Narayan, learned SPP for NIA has, on the other hand, justified the quantum of sentence. It is argued that the learned Trial Court has taken into consideration all the relevant factors which were germane for deciding the quantum of sentence and since the appellants had, without any expectancy, pleaded guilty before the Court, it does not lie in their mouth to now raise any grudge with respect to the extent of the sentence. It is argued that the appeals are totally misplaced and there is no reason to interfere with the sentence awarded by the learned Trial Court. It is also argued that the appellants were highly radicalized workers of a proscribed terrorist organization which had carried out several terrorist acts in India and the learned Trial Court had shown enough of compassion as it did not award maximum sentence for various other offences. During course of arguments, Sh. Narayan also made reference to the allegations against the appellants and contended that the allegations were actually enormous and merely because the appellants had chosen to plead guilty, it does not automatically follow that they had become entitled to lesser sentence. It is claimed that undue sympathy would rather do more harm than good and reliance in this regard has been placed upon Mohd. Jamiludin Nasir (supra). There cannot be qualm with respect to the above proposition but fact remains that the factual matrix of that case was entirely different. The charges therein were also for commission of offences under Section 121 IPC and Section 302 IPC, which attracted death sentence. The incident, narrated therein, resulted in loss of life of five police personnel apart from injuring thirteen police personnel and civilians. However, Hon’ble Supreme Court, taking into consideration the facts and circumstances of that case, came to the conclusion that it was not a case warranting extreme penalty of death. Moreover, in the present case, the charge is with respect to the conspiracy i.e. Section 121A IPC and not any actual act as contemplated under Section 121 IPC. It was also observed in the aforesaid case that sentencing is a delicate task requiring an interdisciplinary approach and calls for special skills and talents. A proper sentence is the amalgam of many factors, such as, the nature of offence, circumstances—extenuating or aggravating—of the offence, prior criminal record of the offender, age and background of the offender with reference to education, home life, sobriety, social adjustment, emotional and mental condition, the prospects for his rehabilitation, etc. Obviously, the most important mitigating circumstance is the fact that all the appellants pleaded guilty at the first available opportunity, without any expectation. They were very much regretful for their acts. We have carefully perused the contents of the application moved by the appellants under Section 229 Cr.P.C. before the learned rial Court whereby they had expressed their wish to plead guilty.

LEGAL PROVISIONS

  1. Indian Penal Code (IPC), 1860

Section 121A IPC: Punishes conspiracy to commit offenses against the state, such as waging war against the Government of India.

Section 121 IPC: Punishes waging, or attempting to wage war, or abetting waging of war against the Government of India. However, the charge under this section in the case study is related to conspiracy under Section 121A.

  1. Unlawful Activities (Prevention) Act (UAPA), 1967

Section 18 UAPA: Punishes conspiracy or attempt to commit, or advocating, abetting, advising, or inciting the commission of a terrorist act or any act preparatory to a terrorist act.

Section 18B UAPA: Relates to punishing individuals who recruit any person or persons for a terrorist act.

Section 19 UAPA: Penalizes individuals harboring or concealing, or attempting to harbor or conceal, any person knowing that such person is a terrorist.

Section 23 UAPA: Specifically deals with certain offenses involving terrorist organizations, which can include participation in activities, membership, and providing support to a terrorist organization. In the case study, Muzaffar Ahmad Bhat was sentenced to life imprisonment under this section.

  1. Criminal Procedure Code (Cr.P.C.), 1973

Section 229 Cr.P.C.: Provides the accused with the option to plead guilty. The court may, in its discretion, convict the accused on his plea of guilt.

Section 375 Cr.P.C.: Limits appeals when a conviction is based on a guilty plea, except regarding the extent or legality of the sentence.

  1. National Investigation Agency Act (NIA Act), 2008

Section 21 NIA Act: Deals with appeals against judgments, sentences, or orders, including the conviction of persons tried by Special Courts under this Act.

COURT’S ANALYSIS AND JUDGEMENT

The enormity of the allegations cannot be the sole determining factor for finalizing the quantum of sentence. Thus, when it comes to sentencing, the yardstick has to be somewhat different and a balanced one. The Court is required to take note of all the mitigating circumstances including the age and the previous antecedents of the appellants. Their candid and unconditional plea of guilt should also be in the reckoning. If the case had been put to trial, it would have taken years together in concluding the matter. Thus, in hindsight, there is significant saving of precious judicial time. A division bench comprising of Justice Suresh Kumar Kait and Justice Manoj Jain disposed of the appeals moved by Bilal Ahmad Mir, Sajjad Ahmad Khan, Muzaffar Ahmad Bhat, Mehraj- ud-Din Chopan and Ishfaq Ahmad Bhatt challenging the trial court order awarding them life sentence. Citing Russian novelist Fyodor Dostoyevsky’s quote from the book “Crime and Punishment”, the Delhi High Court on Monday modified and reduced the sentence awarded to five members of terror organization Jaish-e-Mohammed (JeM) from life imprisonment to 10 years of rigorous imprisonment for the offence under Section 121A of Indian Penal Code. Nonetheless, it will be hazardous to assume that these convicts, merely because of their despicable past, have no future. They do need to be given „a ray of hope‟. In the case in hand, we are fully cognizant of the fact that the appellants had pleaded guilty at the first available opportunity, without any expectation. There is nothing on record which may suggest that they are beyond redemption. India has shown enough of progression in all spheres and our justice delivery system is no exception. It also strongly believes that, more often than not, the eventual consequence of any penal sanction should be to reform any individual, instead of shutting him out by putting him inside for life. that as it may, keeping in mind the gravity of the matter, though, appellants did not deserve any unjustifiable leniency, at the same time, considering their candid confession at first opportunity, their relatively clean antecedents, inclination of reformation and their young age, the life sentence was not warranted either. The man who has a conscience suffers whilst acknowledging his sin. We refer to a quote by Fyodor Dostoyevsky, the author of „Crime and Punishment‟ and in chapter 19, Dostoevsky writes that “if he has a conscience he will suffer for his mistake; that will be punishment — as well as the prison”. Consequently, we hereby dispose of all the appeals with modification that for offence under Section 121A IPC, appellants are directed to serve sentence of rigorous imprisonment for ten years with fine of Rs. 2,000/- and to further undergo SI for a period of one year in case of default of payment of fine. Other terms and monetary imposition of fine for other offences for all the appellants shall remain unaltered. Appeals stand disposed of in aforesaid terms.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Judgement Reviewed by – HARIRAGHAVA JP

click here to read the judgement

0

Bail Can Be Cancelled by Same Court Which Granted It If There Are Serious Allegations Even If Accused Hasn’t Misused Bail: Supreme Court

Bail Can Be Cancelled by Same Court Which Granted It If There Are Serious Allegations Even If Accused Hasn’t Misused Bail: Supreme Court

Case title: AJWAR VS WASEEM AND ANOTHER

Case no.:  Criminal Appeal Nos. of 2024 arising out of Petition for Special Leave to Appeal (Criminal) Nos. 513, 2437, 13404, and 16310 of 2023

Dated on: 17TH May 2024

Quorum:  Hon’ble Ms. Justice [HIMA KOHLI And Hon’ble Mr. Justice. AHSANUDDIN AMANULLAH

FACTS OF THE CASE

Bail was granted to accused Waseem on grounds of parity with his father, Niyaz Ahmad, which was later set aside by the Court. An appeal by the appellant-complainant led to the restoration of the bail application of accused Waseem to be decided afresh by the High Court. The case involves multiple accused individuals (Nazim, Aslam, Abubakar) seeking bail on similar grounds under Section 439 Code of Criminal Procedure, 1973 for a case involving various offences. Different Benches of the High Court allowed the bail applications of Waseem, Nazim, Aslam, and Abubakar on separate dates. The appellant-complainant approached the Court aggrieved by the bail orders granted by the High Court on these individuals. The case pertains to an incident on 19 May, 2020, with ongoing investigation and court proceedings involving delays and attempts to transfer the trial. The conduct of the respondents in delaying the trial was criticized by the Additional Sessions Judge in Meerut. Co-accused Niyaz Ahmad filed a transfer petition for a change in the trial judge due to alleged bias. The post mortem reports of the deceased sons of the appellant showed fatal firearm injuries. Eyewitness testimonies implicated Waseem, Nazim, Aslam, and Abubakar in the incident. Multiple arrests were made, and illegal firearms were recovered from Aslam. Trial proceedings involved examination of witnesses and the statement of the informant. Previous court orders for bail were challenged and overturned based on findings. The case is pending trial before the Additional Sessions Judge in Meerut. Allegations of enmity and a targeted attack by the accused are central to the case.

 

CONTENTIONS OF THE APPELLANT

Appearing for the appellant-complainant, Mr. Shreyas U. Lalit and Mr. Ansar Ahmad Chaudhary, learned counsel submitted that this is a case of double murder of two young sons of the appellant-complainant at the hands of the accused persons who harbored previous enmity against him and his family members. Waseem (A-7) was arrested on 27th May, 2020. The other accused persons were arrested on different dates. After their arrest, the police conducted a search of the respondents and recovered five illegal country-made pistols, seven live cartridges and five used cartridges from the possession of Aslam (A-2). A specific role has been attributed to each of the four respondents herein that resulted in the death of the appellant’s two sons and serious injuries to his nephew. All the four respondents herein were named in the FIR, besides the other co-accused. During the course of investigation, the statements of eleven independent witnesses were recorded under Section 161 Cr.P.C. wherein an active role has been attributed to all the four respondents. Later on, the appellant-complainant entered the witness box and appeared as PW-1. He has reiterated the role played by the respondents herein in committing the offence. Two other independent eye witnesses, namely, Abdullah (PW-2), Asjad (PW-3) and Fahim Uddin (PW-4) have supported the testimony of the appellant (PW-1). Learned counsel for the appellant-complainant further states that the High Court has completely overlooked the fact that the respondents-accused parties were the aggressors who had forcibly entered the house of the appellant-complainant and indiscriminately fired at him, his sons and other persons who had gathered at his house to break the fast. They have criminal antecedents and several cases are registered against them. Even before completion of a period of six months granted by the High Court, by an earlier order dated 7th April, 2022 passed on an application moved by the appellant complainant under Section 482 Cr.P.C for issuing directions to the trial Court to complete the trial in a definite period, the High Court has proceeded to grant bail in favour of Waseem on the grounds of parity with his father; similar orders have been passed in favour of Nazim, Aslam and Abubakar. It has also been pointed out that from the side of the accused persons, a cross case was registered on the basis of an application moved under Section 156(3) of the Cr.P.C. The matter was investigated and the police filed its final report. He submitted that this conduct of the respondents was adversely commented upon by the Additional Sessions Judge, Court No.15, Meerut in his order dated 23rd August, 2022, wherein it was observed that five dates were taken by the accused but they failed to cross-examine the appellant – complainant and the accused were cautioned that if the cross-examination would not be completed, then their right to cross-examine him would be closed. To delay the trial, the co-accused, Niyaz Ahmad filed a transfer petition before the Sessions Court, requesting that the trial be conducted by some other Additional Sessions Judge, on the plea of bias.

CONTENTIONS OF THE RESPONDENTS

As for the subsequent conduct of the respondents, it was pointed out that after being released on bail, one of the prime eyewitnesses, Abdullah (PW-2) was sought to be intimidated by them and their supporters. Abdullah (PW-2) filed a complaint on 21st March, 2023 which was registered as an FIR, wherein it was alleged that five accused persons i.e. three respondents herein (Waseem, Nazim and Aslam) and the co-accused, Hamid and Ayyub had threatened him in open Court. After he left the Court premises, he was thrashed by them. On an application moved by PW-2, he was extended protection by the Court. The present petitions have been strongly opposed by Mr. Siddharth Luthra, Senior Advocate appearing for the accused-respondents Waseem, Nazim and Aslam and Mr. Sitab Ali Chaudhary, learned counsel for the accused-respondent Abubakar. Learned counsel submitted that any delay in completing the trial cannot be attributed to the respondents and the adjournments referred to by the learned trial judge in the order dated 23rd August 2022 were not on account of the respondents. In fact, the prosecution witness was available only on two dates for his cross-examination and only one date was taken by the accused, Niyaz Ahmed on medical grounds. He submitted that accused Waseem did not misuse the liberty granted to him by the High Court vide order dated 22nd August, 2022 and when his bail order was set aside by this Court on 14th October, 2022 and remanded back to the High Court for passing a reasoned order, he had surrendered on time. Learned counsel submitted that the appellant-complainant himself is a well-known criminal of the area, having several cases registered against him as also his two sons. The criminal history of the appellant-complaint and his two deceased sons, Abdul Majid and Abdul Khaliq have been detailed in paras 19 to 21 of the counter affidavit. As per the respondents, the appellant-complainant is involved in 10 criminal cases and his two deceased sons, Abdul Majid was involved in 21 criminal cases and Abdul Khaliq was involved in 2 cases. Next, contending that bail once granted cannot be cancelled until there are supervening circumstances and in the present case there are no such circumstances that require setting aside of the impugned orders, learned counsel for the respondents supported the impugned orders and requested that the present appeals be dismissed. It was additionally submitted that even when the accused Waseem was released on bail, he had abided by the conditions of bail imposed on him and did not misuse the liberty in any manner. On merits, learned counsel for the respondents submitted that there was previous enmity between the parties; those three persons had been falsely introduced in the FIR against whom no case was made out and after investigation, their names were dropped from the chargesheet; that the prime eye-witnesses (PW-1, 2, 3 and 4) are related to the deceased being their father/uncle/cousin, etc. Several loopholes in the prosecution version were sought to be highlighted by the learned counsel for the respondents relating to conducting the inquest of the deceased Abdul Majid, the difference in the time between reporting the crime that took place on 19th May, 2020, at 2030 hours as against the time when the investigation had allegedly started (1818 hours); the alleged manipulation in the Medico Legal Reports of the injured, Asjad; the role of Asjad (nephew of the appellant complainant) who had allegedly called twice on the mobile phone of Abubakar (brother of the accused, Waseem) which fact could be verified from the CDR details of the mobile phone and showed that the injured Asjad was the aggressor who had threatened to kill Waseem’s brother. It was also contended that the appellant-complainant and 15 other persons with him were present at the mosque and not at his residence, as recorded in the chargesheet and they were the ones who had badly assaulted Waseem’s brother, entered his residence and thrashed his family members. Learned counsel for the respondents submitted that the real reason behind the dispute between the appellant-complainant and his family members and the accused and his family members related to political rivalry as the appellant-complainant had lost the election for the post of Village Pradhan and then proceeded to falsely implicate the accused persons. Learned counsel argued that where there are two bullet injuries, one each to the two deceased by three assailants, there is a possibility of over-implication of the accused persons. Finally, an assurance has sought to be extended to this Court that the respondents will not abscond as they are permanent residents of the village and they shall continue cooperating for timely completion of the trial.

ISSUES

  1. whether Single Judge disposed of the bail application in an unsatisfactory manner?
  2. whether bail should be granted in a serious criminal offence matter?
  3. whether The High Court’s jurisdiction under Section 439(1) of the Cr.P.C. is in question for granting regular bail Examining the justification of the High Court in granting bail to the respondents?

LEGAL PROVISIONS

Section 439 of the Code of Criminal Procedure, 1973: This section deals with the power of the High Court and Sessions Court to grant bail. It outlines the factors to be considered when granting bail, such as the nature and gravity of the offense, likelihood of the accused fleeing from justice, etc.

Section 154 of the Code of Criminal Procedure, 1973: The mandate of Section 154 is manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station, such police officer has no other option except to register the case on the basis of such information. The provision of Section 154 is mandatory.

Section 173 of the Code of Criminal Procedure, 1973: Every investigation under this Chapter shall be completed without unnecessary delay. [(1-A) The investigation in relation to [an offence under sections 376, 376A, 376AB, 376B, 376C, section 376D, section 376DA, section 376DB or section 376E of the Indian Penal Code shall be completed within two months.

COURT’S ANALYSIS AND JUDGEMENT

The Court must consider the seriousness and gravity of the crime in question. The High Court overlooked the period of custody of the accused for a grave offence. The High Court granted bail based on insufficient reasoning and questionable factors. The accused involved in previous criminal activities were granted bail in this case. The High Court ignored key eyewitness testimonies and the seriousness of the offence. The appellate Court found the bail orders to be unjustified and lacking reasonable grounds. The accused had spent less than three years in custody for a double murder charge. The police’s investigation was criticized for being one-sided. The delay tactics by the accused in the trial process were observed. The High Court granted bail without proper consideration of the gravity of the offence and relevant material. The principles guiding the discretion of granting bail were disregarded by the High Court. The power to grant bail under Section 439 Cr. P.C is of wide amplitude. The discretion of the High Court or a Sessions Court in granting bail is considerable but not unfettered. Considerations for cancelling bail include supervening circumstances or post-grant conduct of the accused. An order granting bail must reflect due application of judicial mind and well-established legal principles. Appellate Courts may set aside bail orders based on illegality, perversity, or irrelevant material. Considerations for setting aside bail orders include supervening circumstances, accused’s conduct on bail, attempts to delay trial, threats to witnesses, and tampering with evidence. The list of considerations provided is illustrative and not exhaustive. At the stage of granting bail, only a prima facie case needs to be examined, detailed reasons causing prejudice to the accused should be avoided in the bail order. The various factors examined collectively indicate that the respondents do not deserve the concession of bail. The observations made are limited to examining the infirmities in the impugned orders and do not indicate an opinion on the merits of the matter pending trial. All four impugned orders are quashed and set aside. Original Names are to surrender within two weeks from the date of this order. Respondents can apply for bail at a later stage if new circumstances emerge.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Judgement Reviewed by – HARIRAGHAVA JP

click here to read the judgement

1 2 3