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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.

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Judgement Reviewed by – HARIRAGHAVA JP

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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.

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An Explicate Comparative Analysis of Code of Criminal Procedure, 1973 and Bharatiya Nagarik Suraksha Sanhita, 2023

 

An Explicate Comparative Analysis of Code of Criminal Procedure, 1973 and Bharatiya Nagarik Suraksha Sanhita, 2023

ABSTRACT
This study undertakes a comparative analysis of the Criminal Procedure Code (CrPC) in India and the Bhartiya Nagarik Suraksha (BNS), a hypothetical legal framework proposed for consideration. The CrPC is a comprehensive statute governing criminal procedure in India, while the BNS is a conceptual framework that draws inspiration from traditional Indian legal principles. The CrPC, enacted in 1973, provides the procedural framework for the investigation and trial of criminal offenses in India. It outlines the powers and responsibilities of various authorities involved in the criminal justice system, such as police officers, magistrates, and courts. The CrPC also lays down the procedures for the arrest, bail, and trial of accused persons, as well as the rules for the conduct of investigations and trials. On the other hand, the BNS is a proposed legal framework that seeks to incorporate traditional Indian legal principles into the modern criminal justice system. It emphasizes principles such as restorative justice, community involvement, and reconciliation. The BNS envisions a system where the focus is not only on punishing offenders but also on rehabilitating them and restoring harmony in the community.
In comparing the two frameworks, several major differences emerge. The CrPC is a detailed and elaborate statute that provides specific procedures and guidelines for every stage of the criminal justice process. In contrast, the BNS is more principles-based and allows for greater flexibility in its application. The BNS also places a greater emphasis on alternative dispute resolution mechanisms, such as mediation and arbitration, whereas the CrPC primarily relies on formal adjudication by courts. The both frameworks share the common goal of ensuring justice and protecting the rights of individuals. While the CrPC is firmly rooted in the principles of British common law, the BNS seeks to draw on India’s rich legal heritage to create a more holistic and culturally relevant approach to criminal justice.

KEYWORDS
Legal procedures, Investigation, Trial, Arrest, Bail, Magistrates, Courts, Offenses, Evidence, Traditional Indian legal Principles, Restorative justice, Community involvement, Reconciliation, Alternative dispute resolution, Mediation, Rehabilitation, Harmony, Cultural relevance, Legal heritage, Criminal justice system, social cohesion, Customary law, Conflict resolution, Legal pluralism, Judicial discretion, Summons cases, Warrant cases, Session court, Summary Trail.

 

 

INTRODUCTION
The CrPC is divided into two main parts: the substantive part, which contains provisions related to the investigation and trial of criminal cases, and the procedural part, which contains the rules and regulations governing the conduct of criminal proceedings. One of the key features of the CrPC is its emphasis on the protection of the rights of the accused. The code lays down specific procedures to be followed by the police during the investigation, such as the recording of statements, the collection of evidence, and the arrest of suspects. The CrPC also provides for the rights of the accused, such as the right to legal representation, the right to bail, and the right to a fair trial. Another important aspect of the CrPC is its role in ensuring the efficiency and effectiveness of the criminal justice system. The code contains provisions that regulate the conduct of courts, such as the time limits for the completion of various stages of the trial and the procedures for the disposal of cases. These provisions are aimed at expediting the delivery of justice and reducing delays in the criminal justice system. Overall, the Criminal Procedure Code plays a crucial role in ensuring the proper administration of criminal justice in India. It provides a framework within which the police and courts can operate, ensuring that the rights of the accused are protected and that justice is delivered in a fair and timely manner. On 11th August, 2023 marked a historic day as several speculations regarding the introduction of new criminal major laws were finally laid to rest. On this date, the Hon’ble Home Minister of India, Shri Amit Shah introduced the three bills to replace the existing IPC, CrPC and IEA. These bills are called The Bharatiya Nyaya Sanhita, 2023; The Bharatiya Nagarik Suraksha Sanhita, 2023; and The Bharatiya Sakshya Bill, 2023 respectively. All the three laws have been referred to relevant Parliamentary Standing Committee. Although, the bills are yet to be enacted and subsequently notified, they have become a major point of debate and discussion already. While some are applauding this move to decolonise the existing criminal infrastructure, many others have questioned the move as being abrupt and without proper public consultation. The majority of the current discourse is focusing upon the IPC or the upcoming Bhartiya Nyaya Sanhita.

Highlights of the Bill

1. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) seeks to replace the Criminal Procedure Code, 1973 (CrPC). The CrPC provides for the procedure for arrest, prosecution, and bail.
2. BNSS mandates forensic investigation for offences punishable with seven years of imprisonment or more. Forensic experts will visit crime scenes to collect forensic evidence and record the process.
3. All trials, inquiries, and proceedings may be held in electronic mode. Production of electronic communication devices, likely to contain digital evidence, will be allowed for investigation, inquiry, or trial.
4. If a proclaimed offender has absconded to evade trial and there is no immediate prospect of arresting him, the trial can be conducted and judgement pronounced in his absence.

 

5. Along with specimen signatures or handwriting, finger impressions and voice samples may be 5. collected for investigation or proceedings. Samples may be taken from a person who has not been arrested.

Major Issues and Analysis

1. The BNSS allows up to 15 days of police custody, which can be authorised in parts during the initial 40 or 60 days of the 60- or 90-days period of judicial custody. This may lead to denial of bail for the entire period if the police have not exhausted the 15 days custody.

2. The powers to attach property from proceeds of crime does not have safeguards provided in the Prevention of Money Laundering Act.

3. The CrPC provides for bail for an accused who has been detained for half the maximum imprisonment for the offence. The BNSS denies this facility for anyone facing multiple charges. As many cases involve charges under multiple sections, this may limit such bail.

4. The use of handcuffs is permitted in a range of cases including economic offences, contradicting Supreme Court directions.

5. The BNSS allows evidence collected by retired or transferred investigating officers to be presented by their successors. This violates normal rules of evidence when the author of the document can be cross examined.

6. Recommendations of high-level committees on changes to the CrPC such as reforms in sentencing guidelines and codifying rights of the accused have not been incorporated in the BNSS.

The Code of Criminal Procedure, 1973 (CrPC) is a procedural law established for the administration of the Indian Penal Code, 1860 (IPC). It governs the procedure for investigation, arrest, prosecution, and bail for offences. The CrPC was first passed in 1861 to address the problem of multiplicity of legal systems in India. Since then, it has been revised on multiple occasions. In 1973, the erstwhile act was repealed and

replaced by the existing CrPC, and changes like anticipatory bail were introduced. It was amended in 2005 to add changes such as provisions for plea bargaining and rights of arrested persons. over the years, the Supreme Court has interpreted the CrPC in varied ways and revised its application. These include: (i) mandating the registration of an FIR if the complaint relates to a cognisable offence, (ii) making arrests an exception when the punishment is less than seven years of imprisonment, (iii) ensuring bail for bailable offence is an absolute and in-defeasible right and no discretion is exercised in

such matters. The Court has also ruled on procedural aspects such as establishing guidelines for custodial interrogations and emphasising the importance of speedy trials. However, the criminal justice system continues to face challenges like case backlogs, trial delays, and concerns about treatment of underprivileged groups. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) was introduced on August 11, 2023 to replace the CrPC. It amends provisions on bail, expands the scope of property seizure, and alters powers of police and Magistrates. The Bill has been examined by the Standing Committee on Home Affairs.

Positive Changes
Contrary to popular discourse, several positive changes have been made under the newly enacted BNSS. The author would classify them under five broad categories even though there might be overlaps where one provision can be slotted into multiple categories.
A. Removal of Archaic and Insensitive Terms
Unlike several justifiable critiques against the banality of changing names, sometimes the exercise can be a marvelous step against stigmatisation. One of the most praiseworthy steps in the BNSS is the replacement of archaic and insensitive terminology such as ‘lunatic person’ or ‘person of unsound mind’. All such references have been replaced with more sensitive terms such as ‘having intellectual disability’ or ‘person with mental illness’. This can be seen in Section 219(1)(a) of the BNSS corresponding to Section 198 of CrPC. Similar change has been incorporated in Section 357 of BNSS corresponding to Section 318 of CrPC. Most noticeably, Chapter XXV or 25 of CrPC [Provisions as to Accused Persons Of Unsound Mind] has now been introduced as Chapter XXVII or 27 of BNSS [Provisions as to Accused Persons With Mental Illness] where all the concerned sections have been amended suitably with references to Mental Healthcare Act 2017. The term ‘lunatic asylum’ has been suitably changed to ‘mental health establishment’.
B. Clarity in some procedures
The new code also significantly clarifies and amends the stance to be used viz-a-viz Proclaimed offenders. Earlier as per Section 82(4) of CrPC as added to the code by 2005 Amendment, someone can be declared as a ‘Proclaimed offender’ for only nineteen specified offences under IPC namely, “302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460”. This led to situations wherein someone repeatedly evading legal processes of summons/warrant for any other offence under general penal code of IPC or any other special law could not be declared as a Proclaimed offender. Now, by removing this seemingly arbitrary list of sections, anyone accused of an offence with more than 10 years of imprisonment or other special offences could be declared a proclaimed offender. Similarly, a new section 356 has been added to the BNSS which provides a detailed procedure for conducting a trial/inquiry in the absence of a person declared as ‘Proclaimed offender’. While one may doubt the need for such harsh measures as declaration of a person as a proclaimed offender, but for the time being the code has at least clarified the procedural application of the same.

c. Progressive Safeguards and/or changes

BNSS is also keeping with the times ahead by incorporating changes with respect to use of forensic science in investigation of crimes. By amending Section 311A of CrPC or Section 349 of BNSS, now even finger prints and voice samples may also be taken as compared to just specimen signatures or handwriting samples in the earlier iteration of the code. Earlier only the central government could notify scientific experts for the purposes of Section 293(4)(g) of CrPC, but now state governments may also do the same as per the revised Section 329(4)(g) of BNSS. The new law also seeks to increase the ambit for provision of legal aid. Section 304(1) of CrPC earlier provided for legal aid “in a trial before the Court of Session”. However, the revised section 341(1) of BNSS has replaced this with “in a trial or appeal before a Court” which significantly increases the ambit of the same. In the author’s opinion, the drafters missed an opportunity to bring in comprehensive reforms to legal aid system in India. They could have incorporated some of the suggestions mentioned in reports by NALSA, Law Commission of India, and other reports, most notably the contribution by two of the most preeminent retired judges of Indian Supreme Court such as Hon’ble Mr. Justice P.N. Bhagwati and Hon’ble Mr. Justice V.R. Krishna Iyer.

D. Electronic/Digital alternatives for existing processes
In line of our commitment towards a Digital India, a landmark new Section 532 has been added to the BNSS. As per the same, all trials, inquires and proceedings, recording of evidence therein, examinations of parties, issuance, service and execution of summons and warrants, and several other processes can now be done electronically.
Another change which can be observed is that Section 182 of CrPC which discussed the procedure regarding “Offences committed by letters etc.”, has now been suitably modified to include ‘electronic communication’ as well as per Section 202 of BNSS. While considering the custody and disposal of perishable property during trial, electronic records now need to be maintained of the same as per the revised Section 499 of BNSS or Section 451 of CrPC.

Negative Changes

While most of the changes to BNSS might be categorised as benevolent and/or timely, some changes to the criminal procedure have also raised significant concerns. As abovementioned, while there has been a push on the greater use of forensic science in criminal trials, some provisions could be termed alarming. For instance, as per a proviso added to Section 349 of BNSS corresponding to Section 311A, now a magistrate may ask any person without a history of arrest to give specimens/samples such as fingerprint, voice sample or handwriting samples. Earlier, this could not have been done unless the person was not arrested in connection with an investigation. While one might make the claim that this would reduce unnecessary arrests merely for taking samples, but this exercise of sample taking should ideally be exercised with great caution and only when it is of utmost importance to a trial. Another concerning provision is the addition of a new subsection (3) to Section 43 – ‘Arrest how made’ of BNSS. This new provision now formally brings back the usage of handcuffs. On one hand, it may be argued that usage of

handcuffs become vital in serious cases and not having the same may seriously impede investigation. However, by diluting the scope of this section as can be seen in BNSS, this provision might run contrary to the landmark 1979 Supreme Court verdict of Sunil Batra vs. Delhi Administration, AIR 1980 SC 1579 which heavily critiqued the indiscriminate use of handcuffs. BNSS also adds a new Section 107 which gives vast powers of seizure and attachment of property. This section gives police the power to have the property of any accused seized and forfeited if it is suspected to be involved in criminal activity. The application and judicial interpretation of this section would require a close scrutiny going ahead.As discussed above, to expedite investigations the role of Central government has been explicitly recognised at several instances in the new law. However, while discussing the State government’s power to remit or commute a sentence, earlier as per Section 435 of CrPC the states were only required to ‘consult’ the Central government. Now, as per Section 478 of BNSS the word ‘consultation’ has been substituted by ‘concurrence’. This may lead to situations wherein various state governments might allege that their exclusive power has been made subservient to the will of the Centre. In Section 149(1) of BNSS corresponding to Section 130(1) of CrPC, the level of executive satisfaction to ‘use armed forces to disperse assembly’ has been lowered. Earlier, “Executive Magistrate of the highest rank who is present” could only request the deployment of armed forces. Now, “District Magistrate or any other Executive Magistrate authorised by him, who is present” can also do the same. A new section is added in Chapter XII of BNSS corresponding to Chapter XI of CrPC relating to ‘Preventive Action of Police’. As per this new Section 172, police have been granted wide powers to enforce their will. Anyone deemed to be “resisting, refusing, ignoring or disregarding to conform to any direction” can be detained or removed by the police. Such a detained person may be taken before a judicial magistrate. Ideally, the section should also clarify that such detainee must be brought before a magistrate within 24 hours if the arrest duration is longer than a day and other procedural safeguards must be followed.

CONCLUSION
The CrPC provides for the procedure for investigation and trial for offences. It also contains provisions for security to maintain peace, and maintenance of public order and tranquillity. It contains provisions that allow a District Magistrate to issue orders needed to preserve public order. The BNSS has retained these provisions (in separate chapters). Since trial procedure and maintenance of public order are

distinct functions, the question is whether they should be included under the same law or if they should be dealt with separately. As per the Seventh Schedule of the Constitution, public order is a state subject. However, matters under the CrPC (prior to the commencement of the Constitution fall) under the Concurrent List.
The Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 (BNSS2) proposes significant changes to India’s criminal justice system. While the BNSS2 includes positive steps like mandating forensic investigations, it raises concerns in several areas:
Limited Bail and Plea Bargaining: Changes to bail provisions and restrictions on plea bargaining could limit the rights of the accused and exacerbate prison overcrowding
Data Collection and Due Process: The BNSS2 expands data collection powers, but these might overlap with existing legislation and raise privacy concerns. Additionally, property attachment procedures lack safeguards compared to the PMLA.

Redundancies and Overlooked Reforms: The BNSS2 replicates provisions from existing laws, creating redundancy. Furthermore, it fails to incorporate well-established recommendations for reform in areas like sentencing guidelines and wrongful accusation compensation. The changes in remand procedure are some of the very problematic aspects which must be viewed with caution. Ideally, better funding and infrastructure along with increased safeguards should be further incorporated in the criminal justice administration to better complement any procedural law. It seems that as part of the decolonisation process (from a law made in 1973), name of the act itself has been changed as well as all the references to the word ‘code’ have been substituted for the word ‘Sanhita’. Conversely, one might argue that by still retaining some problematic aspects such as vast discretion granted to the authorities in arrest and investigation still makes it seem colonial.

Written by Hariraghava jp

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“Delhi HC Emphasizes Unique Dynamics of Domestic Violence Cases Involving Women in Authority”

Case title: Sanghmitra v. State

Case no.:  CRL.M.C. 1227/2009

Dated on: 1st April 2024

Quorum: Justice Swarana Kanta Sharma

FACTS OF THE CASE

The petitioner in this case has filed a petition under Section 482 of the Code of Criminal Procedure, 1973, challenging the judgment passed by the Additional Sessions Judge, Delhi, dated 04.10.2008, in CR No. 87/2008. This judgment pertains to a case arising from FIR No. 1098/2002, registered at Police Station Malviya Nagar, Delhi, for an offense under Section 498A of the Indian Penal Code, 1860 (IPC).

The facts of the case indicate that the petitioner had filed a complaint under Section 498A of the IPC on 03.07.2002 against respondent nos. 2 to 8 with the CAW Cell. This complaint led to the registration of FIR No. 1098/2002. The petitioner alleged that she was married to respondent no. 2 according to Buddhist rites and ceremonies on 28.02.1998.

Allegations were made regarding demands for dowry, verbal abuse, and physical violence against her. The accused persons allegedly used to abuse the petitioner and used to ask her to give them more dowry. It was further alleged in the complaint that a specific demand of Rs. 1.5 lakhs, a car, and a separate house was raised by the husband of the petitioner and her in-laws.

The charge-sheet in the case was filed on 27.07.2004, and the accused persons were charged under Sections 498A/406/34 of the IPC. However, the learned Magistrate dropped the charges under Section 406 of IPC against the accused persons on the ground that the complaint did not mention a demand for the return of articles. The accused persons were charged under Section 498A read with Section 34 of IPC.

The accused persons filed a revision petition (CR No. 87/2008) against the order framing charges, which was allowed by the learned Sessions Court through the impugned judgment, discharging the accused persons for the offense under Sections 498A/34 of IPC. The petitioner/complainant has now challenged this judgment through the present petition.

CONTENTIONS OF THE PETITIONER

The petitioner’s counsel argues that the Sessions Court erred in discharging respondent nos. 2 to 8 from the FIR. They contend that the complaint was within the limitation period, as it was filed within three years of the last alleged offense. The counsel asserts that the date of filing the complaint, not the date of cognizance, determines the limitation period. They emphasize that Section 498A IPC covers continuing offenses, including mental cruelty, even if the wife is not residing at her matrimonial home.

The petitioner stated in the complaint that dowry demands persisted after she left the matrimonial home, extending to mental torture via phone calls. The counsel criticizes the Sessions Court for prematurely assessing the case’s merits, alleging potential false implication solely due to the complainant being a police officer. They argue that the respondent no. 2, also a police officer, wouldn’t have been implicated without merit. The counsel maintains that specific allegations justify the inclusion of the accused relatives and seeks the reversal of the judgment.

CONTENTIONS OF THE RESPONDENTS

The counsel for respondent no. 2 contends that the learned Magistrate lacked authority to review the order dated 27.07.2004 and could only condone delay at the time of taking cognizance. They argue that Section 468 of Cr.P.C. bars cognizance of a time-barred case unless delay is condoned under Section 473 at the time of cognizance. The complaints filed by the petitioner were after she had been residing separately, and lacked specific allegations, only containing general ones.

They assert that as a second appellate court, this court cannot delve into the case’s merits based on factual instances. They further argue that despite the petitioner’s knowledge of law and investigation procedures as a Delhi Police employee, she failed to produce supporting documents or witnesses. Thus, they pray for the dismissal of the petition for lack of merit.

LEGAL PROVISIONS

  1. Section 468 of the Criminal Procedure Code (Cr.P.C.): Pertains to the bar on taking cognizance of certain offenses after the lapse of the prescribed period.
  2. Section 473 of the Criminal Procedure Code (Cr.P.C.): Relates to the power of the court to take cognizance of an offense after the lapse of the prescribed period if it is satisfied that the delay has been properly explained.
  3. Section 498A of the Indian Penal Code (IPC): Deals with the offense of cruelty by husband or relatives of the husband towards a woman.
  4. Section 34 of the Indian Penal Code (IPC): Pertains to acts done by several persons in furtherance of common intention.

ISSUE

The issue at hand, after scrutinizing the entirety of the case’s factual context, revolves around whether the cognizance taken by the learned Magistrate on 27.07.2004 was time-barred under Section 468 of the Cr.P.C., and whether the learned Sessions Court appropriately discharged the accused individuals in its judgment dated 04.10.2008.

COURT’S ANALYSIS AND JUDGEMENT

Cognizance by the Magistrate was Not Barred by Limitation under Section 468 of Cr.P.C.

Undisputed facts include the petitioner leaving her matrimonial home on 08.09.1999, filing a complaint with the CAW Cell on 03.07.2002, the police registering an FIR on 19.12.2002 under Sections 498A/406 of IPC, and the prosecution filing a charge-sheet on 27.07.2004, with cognizance taken on the same day.

Regarding the issue of cognizance, the Constitution Bench of the Hon’ble Apex Court, in the case of Sarah Mathew v. Institute of Cardio Vascular Diseases, clarified that for computing the limitation period under Section 468 of Cr.P.C., the date of filing the complaint or institution of prosecution is relevant, not the date of Magistrate’s cognizance. Furthermore, the Supreme Court held in Bharat Damodar Kale v. State of A.P. and Japani Sahoo v. Chandra Sekhar Mohanty that the date of filing the complaint determines the limitation period, not the date of cognizance.

Applying this principle, considering the date of the alleged offense and the date of filing the complaint, it is evident that the complaint was within the limitation period. The petitioner’s complaint included incidents beyond the date of leaving her matrimonial home, indicating ongoing cruelty, as emphasized in Rupali Devi v. State of U.P.

Therefore, it prima facie appears that there was no delay in filing the complaint under Section 498A/406 of IPC. However, it remains for the Trial Court to determine whether these incidents fall within the ambit of Section 498A of IPC.

The impugned judgment is subject to being overturned for two reasons:

Firstly, the bar under Section 468 of Cr.P.C. doesn’t apply here, as the complaint was filed within the limitation period. Therefore, the question posed by the Sessions Court regarding condoning delay in a supposedly time-barred case was misframed.

Secondly, the Sessions Court’s reasoning for refusing to condone the delay is flawed. It seems to suggest that a police officer, like the petitioner, cannot be a victim of domestic violence, which is a biased and unjustified perception. The court’s decision should be based on facts, not biases or stereotypes about gender or profession. Judicial decisions must be grounded in law, precedents, and evidence, not assumptions or prejudices about individuals’ professions or personal lives.

Judicial decisions must embrace gender neutrality and remain free from hidden biases. Biases, ingrained in societal norms, can subtly influence judgments, but judges must ensure impartiality. In this case, biases led to overlooking the complexities of domestic violence, particularly for empowered women. Judicial education is vital to address biases and ensure fairness in adjudication. The court emphasizes the importance of continuous training for judges to understand diverse perspectives and enhance public trust in the legal system. The impugned judgment is set aside, affirming the framing of charges under Sections 498A/34 of IPC. The petition is disposed of accordingly, with instructions to inform the trial court and upload the judgment on the website.

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Judgement Reviewed by – Chiraag K A

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