Tekchand Sharma vs State of Punjab

CRMM 6089/20 10/07/23 [ Harsimran Singh Sethi Justice ]

[ PUNJAB HARYANA HIGH COURT ]

Section 182 IPC Section 468 CRPC Quashing of kalandra and proceedings Limitation Period for cognizance Limitation period of one year would start from the date when the cancellation report was prepared by the investigating agency Mere pendency of FIRs on the date of the registration of impugned DD will not extend the limitation period DD was registered after expiry of limitation period one year of preparation of cancellation period Thus, all the proceedings arising from said DD were not maintainable, hence quashed.

Relevant Paras:

4. The petitioner argues that keeping in view the limitation period provided under Section 468 Cr.P.C. as the maximum punishment provided under Section 182 IPC is 6 months imprisonment, the DD No.15, dated 25.01.2020 could have only been got registered within a period of one year of the cancellation report, whereas the same was registered much after the expiry of the limitation provided under Section 468 of the Cr.P.C. hence, the same is liable to be quashed being not maintainable.
5. Learned counsel for the respondent on the other hand submits that though the cancellation report was submitted on the dates mentioned by the petitioner as recorded hereinbefore but as the FIRs were pending, the registration of the DD No.15 dated 25.01.2020, is to be treated within the limitation as provided under Section 468 of Cr.P.C.
6. I have heard learned counsel for the parties and have gone through the record with their able assistance.
7. It is a conceded position that in the present petition, the challenge is to the DD No.15 dated 25.01.2020. It is also a conceded position that the maximum punishment provided, in case the allegations are proved under Section 182 IPC, is 6 months imprisonment. Section 468 of the Cr.P.C. provides limitation for taking cognizance of the offence. Section 468 Cr.P.C., is reproduced herein for the ready reference:-
468. Bar to taking cognizance after lapse of the period of limitation:-
(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.
(2) The period of limitation shall be-
(a) six months, if the offence is punishable with fine only;
b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

c) three years, if the offence is punishable with imprisonment for term exceeding one year but not exceeding three years.
(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.
8.As per Section 468 (2) Cr.P.C., where the offence is punishable with imprisonment for a term not exceeding one year, the limitation period is one year, hence, in the present case the limitation period would start from the date when the cancellation report was prepared by the investigating agency.
9. In the facts and circumstances of the case, it is clear that it was only uptill 28.09.2019 that the action could have been initiated by the investigating agency under Section 182 of the IPC, whereas the present DD No.15 dated 25.01.2020, was registered after the expiry of the limitation period as provided under Section 468(2) of Cr.P.C.
10. Learned counsel for the respondent has not been able to point out, as to how mere the pendency of the FIRs on the date of the registration of the impugned DD, will extend the limitation especially the allegation alleged in the DD were based upon the cancellation report submitted on 17.09.2018 in respect of FIR No.190 dated 01.08.2016 and cancellation report dated 28.09.2018 in respect of FIR No.130, dated 07.08.2014, registered at Police Station Hasanpur, District Palwal.

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CRM-M_6089_2020_10_07_2023_ Tekchand Sharma Vs State of Haryana and others the law literates judgment

All rights Reserved (Saba Hasan) Adv

Date of decision: 21st November, 2023
FAHIM VS STATE 
CORAM:
HON’BLE MR. JUSTICE AMIT BANSAL

The Trial Courts should not issue NBWs against a person on first call in the pre-lunch hours of the Court, except when there are genuine apprehensions that the person would abscond if not taken intocustody. Such coercive steps should be taken only post 12:30 PM.
ii. In situations where warrants, either bailable or non-bailable, are issued and the person appears before the Court during the course of the Court hours, the Courts should assess if the reason of non- appearance of the person was reasonable and if warranted, costs may be imposed.
iii. If the person is present through his authorized Advocate, warrants for appearance of the person should be issued only in exceptional circumstances, with reasons for the same being recorded in writing, especially where an application seeking exemption from personal appearance has been filed on behalf of the person.
iv. If an application for cancellation of NBWs due to non-appearance of the parties is filed shortly after the issuance of NBWs, the Trial Court should expeditiously consider the said application.

Relevant Paras:

3. I have heard counsels for the parties and perused the material on record.
4. Rule 3, Part C (i), Volume III, Chapter 1 of the Delhi High Court Rules states that issuance of warrants interferes with the personal liberty of a person and the Magistrate should take care that no greater hardship than is necessary is caused to the person concerned.
5. A Co-ordinate Bench of this Court in Afzal Ahmad v. State, 2022 SCC OnLine Del 256, has observed that the Trial Court should not have issued NBWs against the petitioner on account of non-appearance of the petitioner in the early hours of the day.
6. Another Co-ordinate Bench of this Court in Naresh Kumar v. State, (2006) 131 DLT 678, held that the Trial Courts should not take an extreme step of issuing NBWs during the first call and in the pre-lunch hours of the day.
7. This Court is in full agreement with the aforesaid views taken by the Co-ordinate Benches. On a lot of occasions due to variety of reasons, including the traffic situation in the city, various parties are unable to reach the Court when the matter is called for the first time, but reach later.

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Fahim vs State Delhi High Court judgment the law literates

All rights Reserved (Vaibhav Tomar Adv)

Shabnamjahan vs State Of Maharashtra CRA 127/22 11/04/23

[ CORAM: GAURI GODSE, JUSTICE] [ BOMBAY HIGH COURT ]

• Juvenile Justice Care and Protection of Children Act, Section 102 Adoption of child Adoption cannot be denied on the ground that prospective parent is a single lady and a divorcee and she being a working lady will not be able to give personal attention to the child When the statute recognises a single parent to be eligible for being an adoptive parent, the approach of the Competent Court defeats the very object of the statute Single or divorced person is eligible for taking a child in adoption Application is rejected only on one ground of the adoptive parent being a working lady.

Relevant Paras :

15. The learned Counsel for the Applicants has relied upon a decision of this Court in the case of Sumed s/o. Devidas Thamke and others1 in support of his submissions. In the said case adoption application was rejected by the Competent Court on the ground that since the child was neither a child in conflict with the law, nor a child in need of care and protection, nor an orphan, nor a surrendered/ abandoned child, the provisions of JJ Act were not applicable. This Court, after referring to various provisions of the JJ Act, held that the JJ Act is also applicable for the adoption of a child by a relative from another relative.
16. In the present case, the Competent Court has rejected the application only on the ground that the prospective parent is a single lady and a divorcee, and she being a workinglady, will not be able to give personal attention to the child per contra the biological parents would be in a better condition to take care of the child. Section 57 of the JJ Act provides the eligibility criteria of a prospective parent. Sub- section (3) of Section 57 holds a single or divorced person eligible for taking a child in adoption. Sub-section (1) of Section 57 states that the prospective adoptive parent shall be physically fit, financially sound, mentally alert and highly motivated to adopt a child to provide a good upbringing to the child. Thus, the reason given by the Competent Court is not only contrary to the provisions of the JJ Act but is also contrary to the recommendation made by the District Child Welfare Officer and the Assistant Director of CARA. Even otherwise, the reason given by the Competent Court is unfounded and baseless.
17. The Competent Court was required to verify whether the statutory requirements were complied with and, after scrutinising the record of the proceedings, form an opinion as to whether the application for adoption was in the interest of the child. The Competent Court has erroneouslyrejected the application by doing guesswork. The comparison done by the Competent Court between the biological mother being a housewife and the prospective adoptive mother (single parent) being a working lady reflects a mindset of the medieval conservative concepts of a family. When the statute recognises a single parent to be eligible for being an adoptive parent, the approach of the Competent Court defeats the very object of the statute. Generally, a single parent is bound to be a working person, maybe with some rare exceptions. Thus, by no stretch of the imagination, a single parent can be held to be ineligible to be an adoptive parent on the ground that he/she is a working person.

18. There is nothing adverse shown to me for rejecting the application for adoption. A perusal of the record shows that all the statutory compliances are done. The report of the District Child Welfare Officer and the pre-approved letter issued by the Assistant Director of CARA have found the prospective adoptive parent to be a fit parent for adopting the child. The impugned Order does not record anything
adverse regarding the statutory compliances. The application is rejected only on one ground of the adoptive parent being a working lady. The reason recorded by the Competent Court is unfounded, illegal, perverse, unjust and unacceptable.

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Miss Shabnamjahan D:o. Moinuddin Ansari vs state of Maharashtra

all rights reserved (Vaibhav Tomar Adv)

LASKAR vs STATE OF PUNJAB CRR 2044/19 13/11/19 [ Anupinder JJ ]

[ PUNJAB HARYANA HIGH COURT ]

Sections 382, 323, 511 and 34 IPC Tried to snatching Conviction and sentence Challenged Petitioners are alleged to have only tried to snatch the motorcycle of the complainant by putting chilli powder in his eyes. The medical evidence does not indicate any serious injury to the complainant Petitioners are first offenders and facing the agony of protracted criminal proceedings for over 06 years. They are in their 20’s and not involved in any other case. The petitioners have undergone sentence of 4 months and 29 days It would, therefore, be in the interest of justice, if the sentence of the petitioners is reduced to the period already undergone by them – Consequently, while maintaining the conviction, the sentence of the petitioners is reduced to the period already undergone by them. They be released forthwith, if not required in any other case

Relevant paras

The petitioners had been convicted under Sections 382, 323, 511 and 34 IPC and sentenced to undergo rigorous imprisonment for a period of one year. The petitioners are alleged to have only tried to snatch the motorcycle of the complainant by putting chilli powder in his eyes. The medical evidence does not indicate any serious injury to the complainant. The petitioners are first offenders and facing the agony of protracted criminal proceedings for over 06 years. They are in their 20’s and not involved in any other case. The petitioners have undergone sentence of 4 months and 29 days.
It would, therefore, be in the interest of justice, if the sentence of the petitioners is reduced to the period already undergone by them.
Consequently, while maintaining the conviction, the sentence of
the petitioners is reduced to the period already undergone by them. They be
released forthwith, if not required in any other case.

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LASKAR SINGH@LAKHWINDER SINGH AND ANOTHER VERSUS THE STATE OF PUNJAB the law literates

all rights reserved (Vaibhav Tomar) 𝔸𝕕𝕧 

THE SUPREME COURT OF INDIA

(2023) 1 ApexCourtJudgments(SC) 58 : (2023) 1 CriCC 26 : (2023) 1 KHC 418 : (2023) 1 MadWN(Cri) 337 : (2023) 1 RCR(Criminal) 762

GUDDAN @ROOP NARAYAN Vs. STATE OF RAJASTHAN — Respondent

Criminal Appeal No. 120 of 2023 (@ SLP (Criminal) No. 9756 of 2022)

DATE OF DECISION:- 03-01-2023

Criminal Procedure Code, 1973 (CrPC) – Sections 439 and 389 – Bail – While granting bail/suspension of sentence, excessive conditions cannot be imposed – Conditions for bail cannot become so onerous that their tantamount amounts to bail denial – This Court, time and time again has held that jail is the exception and grant of bail is the rule, and in such a scenario, the conditions imposed on bail must not be unreasonable*_

ORDER

1. The present Appeal has been filed by the Appellant herein against the impugned order dated 20.09.2022 passed by the High Court Of Rajasthan in S.B. CA No. 360/2019. The Appellant herein is seeking for a waiver of the conditions imposed on the grant of suspension of sentence by the impugned order*_

_*2. We had already on 03.01.2023 passed an order allowing the Appeal and waiving off the conditions of bail. We are now giving reasons for the same*_

_*3. Briefly, the facts relevant for the purpose of this Appeal are as follows*_

_*3.1. It is alleged that the complainant, on the date of the incident, was assaulted on the head with an iron rod by the Appellant, causing the complainant to be admitted to the hospital*_

_*3.2. The complainant then registered an FIR against the Appellant u/s 341 & 323 of the IPC. A chargesheet was subsequently filed against the Appellant u/s 341,323,325 and 307 IPC*_

_*4. The Ld. Trial Court, vide order dated 20.02.2019 convicted the appellant u/s 307,323 and 341 of the IPC on grounds of the recoveries made, the eyewitnesses to the incident and the medical evidence. The Appellant was thus sentenced to 10 years Imprisonment and fine of Rs.1,00,000- with default sentence u/s 307 along with 1 year Imprisonment and fine of Rs. 1,000- with default sentence u/s 323 and a 1 month Imprisonment and a fine of Rs. 500/- u/s 341 of the IPC*_

5. The Appellant then preferred an Appeal before the High Court, and during the pendency of the Appeal preferred an Application for Suspension of Sentence.

6. The High Court, vide impugned order dated 20.09.2022 suspended the sentence of the Appellant, however imposed strict conditions of deposit of fine amount of Rs. 1,00,000/- along with a surety of Rs. 1,00,000/- and two bail bonds of Rs. 50,000/- each.

7. These conditions imposed by the High Court for the grant of suspension of sentence are being challenged in the present Appeal.

8. We have heard the arguments of both the parties in detail.

9. This Court, time and time again has held that jail is the exception and grant of bail is the rule, and in such a scenario, the conditions imposed on bail must not be unreasonable.

10. In the case of Munish Bhasin and Others Vs. State (Government of NCT of Delhi) and Another (2009) 4 SCC 45, the Appellant had approached the Supreme Court in Appeal against an order of the High Court that had imposed onerous conditions for grant of Anticipatory Bail in a Domestic Violence case. This Hon’ble Court in its reasoning held that harsh and excessive conditions cannot be imposed while granting bail, the relevant observations of this Court are reproduced hereunder:

’10. It is well settled that while exercising discretion to release an accused under Section 438 of the Code neither the High Court nor the Sessions Court would be justified in imposing freakish conditions. There is no manner of doubt that the court having regard to the facts and circumstances of the case can impose necessary, just and efficacious conditions while enlarging an accused on bail under Section 438 of the Code. However, the accused cannot be subjected to any irrelevant condition at all.

12. While imposing conditions on an accused who approaches the court under Section 438 of the Code, the court should be extremely chary in imposing conditions and should not transgress its jurisdiction or power by imposing the conditions which are not called for at all. There is no manner of doubt that the conditions to be imposed under Section 438 of the Code cannot be harsh, onerous or excessive so as to frustrate the very object of grant of anticipatory bail under Section 438 of the Code.’

11. In the case of Sanjay Chandra Vs. Central Bureau of Investigation (2012) 1 SCC 40, while hearing a bail Application in a case of an alleged economic offence, this court held that the object of bail is neither punitive nor preventative. It was observed as under:

’21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.

25. The provisions of CrPC confer discretionary jurisdiction on criminal courts to grant bail to the accused pending trial or in appeal against convictions; since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, is a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognised, then it may lead to chaotic situation and would jeopardise the personal liberty of an individual.

27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution.’

12. Further, in the case of Sandeep Jain Vs. National Capital Territory of Delhi (2000) 2 SCC 66, this Court, while hearing a bail application held that conditions for grant of bail cannot become so onerous that their existence itself is tantamount to refusal of bail. This Court held as under:

‘We are unable to appreciate even the first order passed by the Metropolitan Magistrate imposing the onerous condition that an accused at the FIR stage should pay a huge sum of Rs 2 lakhs to be set at liberty. If he had paid it is a different matter. But the fact that he was not able to pay that amount and in default thereof he is to languish in jail for more than 10 months now, is sufficient indication that he was unable to make up the amount. Can he be detained in custody endlessly for his inability to pay the amount in the range of Rs 2 lakhs? If the cheques issued by his surety were dishonoured, the Court could perhaps have taken it as a ground to suggest to the payee of the cheques to resort to the legal remedies provided by law. Similarly if the Court was dissatisfied with the conduct of the surety as for his failure to raise funds for honouring the cheques issued by him, the Court could have directed the appellant to substitute him with another surety. But to keep him in prison for such a long period, that too in a case where bail would normally be granted for the offences alleged, is not only hard but improper. It must be remembered that the Court has not even come to the conclusion that the allegations made in the FIR are true. That can be decided only when the trial concludes, if the case is charge-sheeted by the police.’

13. In the present case, the Appellant has been granted bail by the High Court. However, while granting bail, the High Court has imposed the excessive conditions of a deposit of fine amount of Rs.1,00,000/- along with a surety of another Rs.1,00,000/- and two further bail bonds of Rs.50,000/- each.

14. We are unable to appreciate the excessive conditions of bail imposed by the High Court. The fact that bail has been granted to the Appellant herein is proof enough to show that he is not to be languishing in jail during the pendency of the case.

15. While bail has been granted to the Appellant, the excessive conditions imposed have, in-fact, in practical manifestation, acted as a refusal to the grant of bail. If the Appellant had paid the required amount, it would have been a different matter. However, the fact that the Appellant was not able to pay the amount, and in default thereof is still languishing in jail, is sufficient indication that he was not able to make up the amount.

16. As has been stated in the Sandeep Jain case (supra), the conditions of bail cannot be so onerous that their existence itself tantamounts to refusal of bail. In the present case, however, the excessive conditions herein have precisely become that, an antithesis to the grant of bail.

17. Any other accused in a similar circumstance at this point would not be in custody, however, the present Appellant, because of the conditions imposed, has not been able to leave the languish of jail. Can the Appellant, for not being able to comply with the excessive requirements, be detained in custody endlessly? To keep the Appellant in jail, that too in a case where he normally would have been granted bail for the alleged offences, is not just a symptom of injustice, but injustice itself.

18. Ld. Sr. Counsel Manish Singhvi, appearing on behalf of the State of Rajasthan on the basis of instructions has also very fairly conceded to the point that the conditions of bail are excessive and the appellant is in no financial condition to satisfy the conditions. We deeply appreciate his role as an officer of the court for his unbiased attitude in the matter.

19. We, therefore, allow this Appeal and set out to modify the bail order granted by the High Court. The Bail order is to continue, however, the conditions set for the grant of Bail stands waived off.

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Guddan @Roop Narayan. State Of Rajasthan Supreme Court of India judgment on bail

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Ghan vs State Of HP CRLA 311/21 06/01/23 [ SABINA JJ ]

[ HIMACHAL PRADESH HIGH COURT ]

• Section 376 IPC POCSO ACT Section 4B Section 437A CRPC Conviction Sustainability Penetrative sexual assault Appreciation of evidence Held, prosecution required to establish its case against accused beyond shadow of reasonable doubt Victim not supported prosecution case during trial nor scientific evidence corroborates prosecution case PW-3 deposed as per information given to her by complainant and not by victim herself PW-7 also deposed with regard to facts narrated by complainant and not by victim herself Conviction of appellant only on basis of testimony of complainant as possibility that she might have falsely involved accused in this case on account of domestic violence cannot be ruled out Thus, accused acquitted by giving him benefit of doubt Accused directed to furnish personal bond in sum of Rs.25,000/and surety in like amount. [Paras 21 to 26 and 28]

Relevant Paras:

21. Thus, in the present case, victim has not supported the prosecution case during trial nor the scientific evidence corroborates the prosecution case.

22. PW-3 Guddi Devi, deposed that she was working as Mid-Day-Meal Helper at Government Primary School, Nohra Khandol. In the year 2016, victim was a student of 2nd Class and during school hours she used to observe that the victim remained quite and scared. On inquiry made from the mother of the victim, it transpired that the father of the victim was doing wrong acts with her. In her cross-examination, she deposed that the appellant had not molested anyone in her presence. She admitted that the appellant was a drunkard and troubled his family and parents for the last many years. Thus, so far as the statement of PW-3 Guddi Devi is concerned, she has deposed as per information given to her by the mother of the victim and not by the victim herself.

23. PW-7 Rajat Sharma, deposed that the appellant was his father and the victim was younger daughter of the appellant. He came to know from his mother that something wrong had happened with his sister and his mother made reference of involvement of her father. His mother had told him that the victim complained of pain in her private part. In his cross-examination, he deposed that no one from the village had ever complained with regard to the act and conduct of the appellant. Appellant used to take drinks and created nuisance after consuming alcohol. His mother and grand-father had reported the matter to the local Panchayat against the appellant for creating nuisance at home. Thus, so far as the PW-7 Rajat Sharma is concerned, he has also deposed with regard to the facts narrated to him by his mother (complainant) and not by the victim herself.

24. Thus, in the present case, we are only left with the testimony of the complainant PW-2 Hem Lata, mother of the victim, who has supported the prosecution case during trial while appearing in the witness-box. As per the prosecution witnesses, appellant is a drunkard and creates nuisance at home under the influence of liquor. It has also been admitted by complainant PW-2 that the appellant indulged in domesticviolence. Since in the present case, the victim has not supported the prosecution case and the scientific evidence also does not corroborate the prosecution case, it would not be safe to base conviction of the appellant only on the basis of the testimony of PW-2 Hem Lata (complainant), as the possibility that she might have falsely involved the appellant in this case on account of domestic violence meted out to her, cannot be ruled out.
25. It is a settled proposition of law that prosecution is required to establish its case against an accused beyond the shadow of reasonable doubt. Whenever doubt arises in the prosecution case, benefit of the same has to be extended to the accused.
26. After considering the entire evidence on record, we are of the opinion that in the present case, the prosecution story is rendered doubtful. Hence, the appellant is liable to be acquitted of the charge framed against him by giving him benefit of doubt. Accordingly, the appeal is allowed. Impugned judgment and order of conviction passed by learned Additional District & Sessions Judge, Fast Track Special Court Solan, District Solan, H.P., in Sessions TrialNo.21-S/7 of 2020/2017, dated 23rd July, 2021, are set aside. Appellant is acquitted of the charge framed against him.

28. In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, appellant is directed to furnish a personal bond in the sum of Rs.25,000/- and a surety in the like amount before the Registrar (Judicial) of this Court, which shall be effective for a period of six months, with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellant aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.

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Judgment Ghan Shyam Versus State of Himachal Pradesh

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Major vs State Of Punjab CRMM 25822/23 22/05/23 [ HARPREET JJ ]

[ PUNJAB HARYANA HIGH COURT ]

• Sections 73, 446 and 482 CRPC Forfeiture of surety bond Mere absence of the accused on one date before trial Court in itself is not sufficient to conclude that he is evading his arrest and cannot be sole ground for issuance of non bailable warrants Courts can most certainly take into consideration conduct of accused if he is impeding progress of trial and is on earlier occasion he was declared proclaimed offender and on account of his continuous absence from trial, trial considerably protracted and his past behaviour is relevant for purpose of recording satisfaction under relevant provisions of Code – Hence, forfeiture and cancellation of surety bonds including issuance of nonbailable warrants set aside.

29. In view of the factual position of the law discussed above, this Court is of the considered opinion that for passing any orders in terms of Section 73(1), Section 82(1), Section 446 of the Code, the recording of the satisfaction with regard to evading of the arrest, the willful concealment and breach of the conditions of the bail bond is absolutely necessary. The constitutional protection provided under Article 21 requires that the accused must be granted opportunity in terms of principles of natural justice before any adverse order curtailing a person’s liberty is passed. The Courts cannot issue non bailable warrants in a routine manner without following the drill prescribed under the Code. The Court is required to record its satisfaction on the basis of material available on record and atleast assign reasons for concluding that the accused is willfully evading his arrest and the warrants cannot be executed. The non-bailable warrants are only to be issued after exhausting the other methods of securing the presence of the accused. Mere absence of the accused on one date before the trial Court in itself is not sufficient to conclude that he is evading his arrest and cannot be the sole ground for issuance of non bailable warrants. The Courts can most certainly take into consideration the conduct of the accused if he is impeding the progress of the trial and is on earlier occasion he was declared a proclaimed offender and on account of his continuous absence from the trial, the trial has been considerably protracted. His past behaviour is a relevant for the purpose of recording satisfaction under the relevant provisions of the Code.

30. In view of the above discussion, this Court finds that the learned trial Court has not followed the drill of the procedure provided under Sections 73, 82, 446 of the Code. The Hon’ble Supreme Court in Anuradha Bhasin Vs. Union of India 2020(3) SCC 637 has laid down the ratio that the procedural safeguards provided under the statute are required ot be mandatorily followed and following was observed:
“98. We also direct that all the above procedural safeguards, as elucidated by us, need to be mandatorily followed. In this context, this Court in the Hukam Chand Shyam Lal case (supra), observed as follows:
“18. It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other amodes (sic) of performance are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature…” (emphasis supplied).”
31. The sole purpose for cancellation of bail bonds or issuance of proclamation is to secure presence of the accused. The petitioner in the present case undertakes to appear before the learned trial Court on each and every date.
32. The learned State counsel is not able to controvert the factual position as well as the settled law on the issue at hand.
CONCLUSION
33. Accordingly, the present petition is allowed and the impugned orders dated 20.12.2022 and 03.04.2023 Annexure P-5 and P-6, respectively, passed by the learned trial Court are set aside and the petitioner is directed to appear before the learned trial Court on or before 03.07.2023 and on his doing so the learned trial Court shall admit him to bail on furnishing of fresh bail

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CRM-M_25822_2023_22_05_2023_FINAL_ORDER Major Singh @ Major vs State of Punjab

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R.MANIKANDAN Vs. STATE CRLA 105/16 01/03/23 [ ANAND JJ ]
[ MADRAS HIGH COURT ]

• Section 306 IPC Indian Evidence Act Section 113A Abetment of Suicide Demand of Dowry and Cruelty Appeal against conviction Evidence of father, brothers, sister and uncle of deceased showed that entire family was opposed to deceased marrying Appellant Neighbours stated that appellant and deceased were living happily and that they were not able to see any conflict between both of them Incident took place when the appellant was not in house Appellant did not run away nor absconded after incident and he, in fact, cut the shawl, in which, the deceased was hanging, brought down the deceased, attempted to sprinkle water in her face and informed the neighbours Evidence does not establish cruelty meted out by appellant to deceased Court below has virtually proceeded on an assumption that the appellant was the reason behind the suicide committed by deceased Held, how so ever high the suspicion is, the same cannot replace the test of proving the case beyond reasonable doubts by the prosecution Impugned judgment of conviction, set aside Appeal allowed. [Paras 15, 16, 20 and 22]

Relevant Paras

15. The neighbours, who were examined by the Revenue Divisional Officer, have, in one voice, stated that the appellant and the deceased Rubini were living happily and that they were not able to see any conflict between both of them. The appellant, while giving the statement to the Revenue Divisional Officer, has stated that on 16.3.2008, there was a small misunderstanding between the appellant and the deceased Rubini while they were having food. There was some quarrel between each other. The next day, the appellant left the home and admittedly, the incident took place when the appellant was not in the house. The appellant has attributed this incident to the hyper sensitivity of the deceased Rubini and her over reaction for an innocuous incident.
16. The appellant did not run away nor absconded after the incident and he, in fact, cut the shawl, in which, the deceased was hanging, brought down the deceased, attempted to sprinkle water in her face and informed the neighbours. Thereafter, he also called KMF hospital and the deceased was taken to the hospital. From there, they were directed to go to the Government Hospital at Kothagiri where the deceased was declared ‘brought dead’ at about 11.45 AM. Hence, the appellant was very much available with the deceased after the incident and the conduct of the appellant does not show anything unnatural or point to any suspicion against the appellant.

20. In the instant case, the evidence of P.W.1 to P.W.5 does not establish any cruelty meted out by the appellant to the deceased Rubini. On the other hand, almost all the neighbours, who gave their statements to the Revenue Divisional Officer, have stated that the appellant and the deceased were living happily. The appellant had also cited an incident that took place the previous day, which, by no stretch of imagination, can be considered as an abetment for committing suicide and at the best, it can only be held to be hyper sensitiveness on the part of the deceased. This is on the presumption that it is this incident, which led to the commission of suicide by the deceased Rubini.
21. It must be borne in mind that the deceased Rubini never got any support from her family and it is not known as to whether there was any serious misgiving between the deceased Rubini and her family members and whether the same was also one of the contributing factors, which ultimately led to the commission of suicide by Rubini.

22. The Court below has virtually proceeded on an assumption that the appellant was the reason behind the suicide committed by Rubini. It is now too well settled that how so ever high the suspicion is, the same cannot replace the test of proving the case beyond reasonable doubts by the prosecution.
23. In the light of the above discussions, this Court has absolutely no hesitation to interfere with the judgment rendered by the Sessions Judge, Magalir Neethimandram (FTMC), Ooty in S.C.No.4 of 2014, dated 25.11.2015 and accordingly, the same is hereby set aside. The above criminal appeal is allowed. The appellant was enlarged on bail by this Court by an order dated 21.3.2016 vide Crl.M.P.No.1504 of 2016. In this judgment, since the appellant is acquitted from the charge under Section 306 of the Code, the bail bonds executed shall stand canceled and the fine amount, if any, paid by the appellant shall be refunded to him.

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R.Manikandan Vs State by the Deputy Superintendent of Police, Coonoor Sub-Division, Kotagiri Police Station, Nilgiri District The law literates

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JAVAHAR vs OVT INDIA PVT. LIMITED CRLMC 1255/20 08/08/22

[ Hon’ble Justice Asha Memon   ]

[ DELHI HIGH COURT ]

• Section 482 CRPC NI ACT Sections 138 and 141 Quashing of proceedings Petition for Petitioner is not responsible for and in-charge of the business of the accused company It is not pleaded in the complaints that the dishonoured cheques had been signed by petitioner Documents show that the petitioner though a Director of the accused company was not incharge of or responsible for the conduct of its business Thus, an essential ingredient of Section 141 NI ACT based on which vicarious liability could be attached to the petitioner is missing Petition allowed.

Relevant paras 

8. While it is correct that there can be no deemed liability of Directors, there is a simultaneous requirement that when the petitioner seeks the quashing of a complaint, there is an onus on the petitioner to furnish some kind of sterling and incontrovertible material or other reasonable circumstances to substantiate his contention that he was not in-charge of and responsible for the conduct of the business of the accused company. A complaint cannot be quashed merely on the ground that no particulars are given in the complaint about his role if the basic averment was sufficient to make out a case in the complaint. (Gunmala Sales Pvt. Ltd vs. Anu Mehta and Ors (2015) 1 SCC 103).
9. Turning to the petitions at hand, the copy of the complaint has been filed as Annexure P-1 in each petition. In the compliants, Pantel Technologies Private Limited is accused No.1, the petitioner Javahar Lal is accused No.2 and Vivek Prakash is accused No.3, both of whom have been described as Directors. In Para No.2 of the complaints, it is mentioned that accused No.2 and 3, that is, the petitioner and other Director had approached the complaint for the manufacture and supply of 12,000 STBs Units @12.75 per unit. This is stated to have been done for and on behalf of the accused No.1 company. The words further used, as has been pointed out by the learned counsel for the petitioner, are that the complaints merely state that the accused No.2 and 3 are the Directors of the accused No.1/company and responsible for the day to day affairs of the accused No.1/company.

13. But again, that will not suffice. The MoU, the Tripartite and Sale Agreements placed on the record as P-2 and P-3 dated 18th September, 2018 and 2nd December, 2018 have been executed between M/s Pantel Technologies Private Ltd., M/s OVT India Pvt. Ltd. and Independent TV Ltd. The petitioner claims that he has not signed these agreements, which is substantiated from the very documents. The first Tripartite Agreement has been signed by Mr. Vijender Singh for and on behalf of. M/s Pantel Technologies Private Ltd., and the second agreement has been signed by Mr. Vivek Prakash i.e., accused No.3 in the complaint. In other words, the document relied upon by the respondents does not reflect the fact that the petitioner while being a Director of the accused company was participating in the conduct of the business by entering into trade agreements on behalf of the company. The averments do not find support from the very documents relied upon by the complainant/respondent.
14. Thus the petitioner is not responsible for and in-charge of the business of the accused company. It is not pleaded in the complaints that the dishonoured cheques had been signed by the petitioner. Nor has it been so urged before this Court. Thus, the averments made in the complaints even if be fully accepted, the documents annexed thereto ex facie show that the petitioner though a Director of the accused company was not in-charge of or responsible for the conduct of its business. Thus,

an essential ingredient of Section 141 N.I. Act based on which vicarious liability could be attached to the petitioner is missing.
15. The position of law being what it, is no two views can be taken in the present matters. The complaint cases qua the petitioner are required to be and are quashed.

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Javahar lal vs OVT INDIA PVT. LIMITED & ANR. Judgment delhi high court the law literates

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SEPHY vs CBI WPCRL 1729/09 07/02/23 [ CORAM:
HON’BLE MS. JUSTICE SWARANA KANTA SHARMA]

[ DELHI HIGH COURT ]

• Protection of Human Rights Act Section 12 (a) Conduct of ‘Virginity test’ Violation of fundamental right Examination of accused by medical practitioner Whether includes virginity test There cannot be two sets of views regarding virginity test being violative of fundamental right, for victim of sexual assault on one hand and woman under investigation on other hand Conduct of virginity test on a woman who is victim of sexual assault or on a woman who may be an accused of an offence, cannot be on different footing No procedure, under any law for the time being, which provides for “virginity test” of a female accused Some fundamental rights cannot be suspended or infringed or abridged even when person is in custody Right of dignity in custody however does not include ordinary stresses and anxieties that a person may feel as a result of being in custody and under interrogation.

Relvant Paras

50. Learned counsel for National Human Rights Commission states that the Commission had considered the matter carefully, and the case of petitioner was closed with the following observations:
“…The Hon’ble Court had already seized the matter. Hence, the Commission is not inclined to proceed with the complaint in accordance with Regulation 9 of the NHRC (Procedure) Regulations, 1994 as amended. The complainant may, if so advise, bring the allegation of violation of human rights to the notice of the Court. The case is closed with these observations…”

55. The Supreme Court in Re: Assessment of The Criminal Justice System in Response To Sexual Offences (2020) 18 SCC 540 called for the status report from all states and union territories in the country on the question, among others, as under:
“17. Thus, we consider it appropriate to call for status report with regard to the following: –
…(5) whether the medical experts have done away with the Per-Vaginum examination commonly referred to as ‘Two- finger test’ and whether any directions have been issued by the states in this regard?…”

65. The Hon’ble Apex Court in Selvi & ors. v. State of Karnataka (2010) 7 SCC 263 while dealing with the constitutional validity of narco-analysis of an accused person sans consent, examined the scheme of Sections 53 and 54 Cr.P.C., the relevant observations of which have been reproduced as under:
“145. At this juncture, it should be noted that the Explanation to Sections 53, 53-A and 54 of the Code of Criminal Procedure, 1973 was amended in 2005 to clarify the scope of medical examination, especially with regard to the extraction of bodily substances……

66. A bare perusal of aforesaid provisions reveal that firstly, virginity test finds no mention in the ‘explanation’ to Section 53 as a technique to be used in the medical examination of an accused person to ascertain the facts which may afford evidence. Apart from techniques to be used in examination relating to sexual offences, certain methods and techniques such as examination of sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling are mentioned. Secondly, the Indian Parliament, while introducing the ‘explanation’ to Section 53 Cr.P.C. by the Code of Criminal Procedure (Amendment) Act, 2005, and listing several forms of medical examination, left the scope for more techniques to be included within its ambit. However, as held by the Apex Court in Selvi & ors. v. State of Karnataka (supra), the said scope would be governed by the rule of ‘ejusdem generis’. As per the Apex Court in, the words “such other tests” should construe to mean and include those tests which are in the same genus as the other forms of medical examination that have been specified. Briefly stated, the ruleof ‘ejusdem generis’ commands that meaning of general words following the specific words in a provision of law should be construed in light of the meaning and intent of those specific words. A reading of ‘explanation’ to Section 53 shows that the same mandates medical examination of an accused person by “use of modern and scientific techniques”. It would not be out of context to state here, that, by no stretch of examination, ‘virginity test’ can presumably fall under the said provision. Virginity test is neither modern nor scientific, rather archaic and irrational. Modern science and medical law disapproves the conduct of such tests on women, as already discussed in the preceding paras.

85. The concept of custodial dignity i.e. ensuring dignity of an individual while in custody, whether police or judicial, has been discussed at length in the case of Sunil Batra (II) v. Delhi Administration (1980) 3 SCC 488, which dealt with the torture of persons while in judicial custody. The Hon’ble Apex Court has also held in several judgments regarding violence in police custody. The present case draws the attention of the Court to take note of the important issue of dignity of a female in police custody. This Court holds that the concept of custodial dignity of a female will include her right to live with dignity even while in police custody. Conducting a virginity test on the pretext of reaching truth regarding allegations against her will amount to infringement and violation of her right enshrined in Article 21 and explained in the judgment of D.K. Basu v. State of West Bengal (supra).
86. This Court is not impressed with the argument of the law enforcement agency that the virginity test was necessary to uphold the laws since this argument itself flouts basic principles that a person’s dignity even in custody has to be upheld. The conducting of virginity test not only amounts to interference of the investigating agency with the bodily integrity but also psychological integrity of a woman which will have serious and profound effects on the mental health of a woman.

87. Some fundamental rights cannot be suspended or infringed or abridged even when a person is in custody and right to dignity is one such fundamental right which falls within the ambit of Article 21.

Family Welfare and Secretary, Department of Health and Family Welfare, Govt. of NCT of Delhi.
(iii) The Delhi Judicial Academy is directed to include in its curriculum and in the workshops conducted for investigating officers, prosecutors and other stakeholders, the information regarding this issue.
(iv) Similarly, the Delhi Police Academy for Training shall also include the necessary information regarding this issue in its training curriculum.
(v) The Commissioner of Police, Delhi is also directed to ensure that the investigating officers are informed and sensitized in this regard.

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judgement Delhi High Court CBI & ORS. Versus SR.SEPHY (CRL) 1729:2009

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