Section 375 IPC defines the expression “rape”,

which indicates that the first clause operates, wherethe   woman   is   in   possession   of   her   senses,   andtherefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her on any person in whom she is interested in fear of death or of hurt. The expression “against her will” means that the   act   must   have   been   done   in   spite   of   the opposition of the woman. An inference as to consent can   be   drawn   if   only   based   on   evidence   or probabilities of the case. “Consent” is also stated to be   an   act   of   reason   coupled   with   deliberation.   It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression “consent”. Section 90, though,   does   not   define   “consent”,   but   describes what is not consent. “Consent”, for the purpose of Section 375, requires voluntary participation not only after   the   exercise   of   intelligence   based   on   the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful

study of all relevant circumstances. (See  State   of H.P. v. Mango Ram (2000) 7 SCC 224”

10.2 In the case of  Deepak  Gulati   v.  State  of  Haryana (2013) 7 SCC 675, The Hon’ble Supreme  Court observed and held in paragraphs 21 and 24 as under: “21. Consent may be express or implied, coerced or misguided,   obtained   willingly   or   through   deceit. Consent   is   an   act   of   reason,   accompanied   by deliberation, the mind weighing, as in a balance, the good   and   evil   on   each   side.   There   is   a   clear distinction between rape and consensual sex and in acase like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the   latter   falls   within   the   ambit   of   cheating   or deception. There is a distinction between the mere breach   of   a   promise,   and   not   fulfilling   a   false promise.   Thus,   the   court   must   examine   whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual   intercourse   on   account   of   her   love   and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where   an   accused   on   account   of   circumstances which he  could  not  have  foreseen, or  which  were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.

In the matter of Anurag Soni Versus State of Chhattisgarh( The Hon’ble Supreme Court recently held that.’

“The   prosecution   has   been successful   by   leading   cogent   evidence   that   from   the   very

inspection the accused had no intention to marry the victim and that he had mala fide motives and had made false promise only to satisfy the lust.  But for the false promise by the accused to marry the prosecutrix, the prosecutrix would not have given the consent to have the physical relationship. It was a clear case of cheating and deception.   As   observed   hereinabove,   the   consent   given   by   the prosecutrix was on misconception of fact.  Such incidents are on increase   now­a­days.     Such   offences   are   against   the   society. Rape is the most morally and physically reprehensible crime in a society, an assault on the body, mind and privacy of the victim. As   observed   by   this   Court   in   a   catena   of   decisions,   while   a murderer   destroys   the   physical   frame   of   the   victim,   a   rapist degrades and defiles the soul of a helpless female.  Rape reduces a woman to an animal, as it shakes the very core of her life.  no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, the rape tantamounts to a serious blow to the supreme honour of a woman, and offends both her esteem and dignity.  Therefore, merely because the accused had married   with   another   lady   and/or   even   the   prosecutrix   has subsequently married, is no ground not to convict the appellantaccused for the offence punishable under Section 376 of the IPC.The appellant­accused must face the consequences of the crimecommitted by him.

 In view of the above and for the reasons stated above, we are of the opinion that both the Courts below have rightly convicted the appellant­accused under Section 376 of the IPC. We also maintain the conviction of the appellant­accused under Section 376 of the IPC.  However, in the facts and circumstances of   the   case   and   the   request   made   by   the   learned   counsel appearing on behalf of the appellant­accused, the sentence of 10 years’ RI awarded by the courts below is hereby reduced to seven years RI, the minimum which was prescribed at the relevant time of   commission   of   offence   under   Section   376   of   the   IPC. Consequently,   the   present   appeal   is   partly   allowed   to   the aforesaid modification in the sentence only.”

 

 

 

 

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Now in respect of the offence of cheating, the law is fairly well settled in various judgments of the Apex Court, some of which are relied upon  like Hridaya Ranjan Prasad Verma & ors -vs Stat of Bihar and anr (2000) 4 SCC 168; wherein it was observed that, “It is held time and again that the distinction between mere breach of contract and the offence of cheating is a fine one.

It would depend upon the intention of the accused at the time of inducement, which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of transaction that is the time when the offence is said to have been committed.

Therefore, it is the intention which is gist of the offence. To hold a person guilty of cheating, it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such an culpable intention right at the beginning that is when he made the promise cannot be presumed”

Where  predominantly case  of civil nature and which has been given the robe of criminal offence that too, after availing civil remedies. Therefore, as held by the Apex Court in the case of State of Haryana and others -vs- Bhajan Lal and otherss 1992 Supp (1) SCC 335, where a criminal proceeding is manifestly attended with malafide intention and/or the proceeding is maliciously instituted with object to serve the oblique purpose of recovering the amount, such proceeding needs to be quashed and set aside. The allegations made in the present complaint, even after taken, as they are, also do not make out ingredients of the criminal offence, though at the most they may attract civil dispute, for which respondent No.3 has already taken recourse to the civil law and therefore, on this count also, complaint needs to be quashed and set aside.

In the case of Chandran Ratnaswami -vs- K.C. Palanisamy and ors (2013) 6 SCC 740, relied upon by learned counsel for applicant, wherein it was held that, when the disputes are of civil nature and finally adjudicated by the competent authority, as in the present case, by the Company Law Board and the disputes are arising out of alleged breach of joint venture agreement and when such disputes have been finally resolved by the Court of competent jurisdiction, then it is apparent that complainant wants to manipulate and misuse the process of Court. In this judgment, it was held that, it would be unfair if the applicants are to be tried in such criminal proceeding arising out of the alleged breach of a Joint Venture Agreement. It was further held that the wholesome power under Section 482 of Code of Criminal Procedure entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be abuse of the process of the Court or that the ends of justice require that the proceedings ought to be quashed.

in the case in Indian Oil Corpn-vs- NEPC India Ltd and ors, 2006 (3) SCC Cri 736, the Apex Court was pleased to caution about the growing tendency in business circles to convert purely civil disputes into criminal cases. It was observed that:-

“Any effort to settle civil disputes and claims which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged”

The  Hon’ble Supreme Court in the case of V.Y. Jose and anr -vs- State of Gujarat (2009) 3 SCC 78, wherein the Apex Court was once again pleased to observe that:-

“Section 482 serves a salutary purpose that a person should not undergo harassment litigation, even though no case has been made out against him. A matter which essentially involves disputes of civil nature, should not be allowed to be subject matter of a criminal offence, the latter being a shortcut of executing a decree which is non-existent”.

 

Where there is no purely matter of Civil in nature FIR can not be quashed.

In the latest judgment of Apex Court in the case of Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and ors -vs- State of Gujarat and anr, in Criminal Appeal No.1723 of 2017  it was found that the case involves allegations of extortion, forgery, fabrication of documents, utilization of those documents to effectuate transfers of title before registering authorities and the deprivation of the complainant of his interest in land on the basis of fabricated power of attorney. Hence, it was held that such allegations in the F.I.R., cannot be construed to be of a merely private or civil dispute. They implicate serious offence having a bearing on a vital societal interest and therefore, it was held that the High Court was justified in declining to quash the F.I.R., though the matter was amicably settled between the private parties.

In the case of State of Maharashtra and ors -vs- Arun Gulab Gawali, (2009) 9 SCC 701, Court has explained the parameters and ambit of section 482 of the Code of Criminal Procedure, in the light of decision of Apex Court.

 The based judgments for quashing u/s 482 of Cr.P.C is  State of Haryana -vs- Bhajanlal.

 

Bail/Anticipatory bail section 354 of IPC

Per Contra, learned APP has vehemently opposed the bail application by stating that the petitioner has been evading arrest and has not joined the investigation. He further alleged that the anticipatory bail application has been previously rejected by the learned ASJ keeping in view the seriousness of the allegations. Hence, the present petition is liable to be set aside.

  1. I have heard the learned counsel for the parties and perused the material available on record.
  2. Before adverting to the question raised in the present petition, it is seen that the petitioner is charged for the offences under Sections 354/354A/506 of IPC. Section 354 IPC, makes penal the assault or use of criminal force to a woman to outrage her modesty. The essential ingredients of offence under Section 354 IPC are: (a) that the assault must be on a woman; (b) that the accused must have used criminal force on her; (c) that the criminal force must have been used on the woman intending thereby to outrage her modesty. In Raju Pandurang Mahale vs State Of Maharashtra And Anr reported in (2004) 4 SCC 371, it has been observed that :

“What constitutes an outrage to female modesty is nowhere defined. The essence of a woman’s modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a women, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such ourtrage alone for its object. As indicated above, the word ‘modesty’ is not defined in IPC. The shorter Oxford Dictionary (Third Edn.) defines the word ‘modesty’ in relation to woman as follows: “Decorous in manner and conduct; not forward or lowe; Shame-fast: Scrupulously chast.” Modesty is defined as the quality of being modest; and in relation to woman, “womanly propriety of behaviour; scrupluous chastity of thought, speech and conduct.” It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. As observed by Justice Patterson in Rex v. James Llyod, (1876) 7 C & P 817. In order to find the accused guilty of an assault with intent to commit a rape, court must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part. The point of distinction between an offence of attempt to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he was just going to have sexual connection with her. Webster’s Third New International Dictionary of the English Language defines modesty as “freedom from coarseness, indelicacy or indecency, a regard for propriety in dress, speech or conduct”. In the Oxford English Dictionary (1933 Edn.), the meaning of the word ‘modesty’ is given as “womanly propriety of behaviour: scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions.” In State of Punjab v. Major Singh, AIR (1967) SC 63 a question arose whether a female child of seven and a half months could be said to be possessed of ‘modesty’ which could be outraged. In answering the above question the majority view was that when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that must fall within the mischief of Section 354 IPC. Needless to say, the “common notions of mankind” referred to have to be gauged by contemporary societal standards. It was further observed in the said case that the essence of a woman’s modesty is her sex and from her very birth she possess the modesty which is the attribute of her sex. From the above dictionary meaning of ‘modesty’ and the interpretation given to that word by this Court in Major Singh’s case (supra) the ultimate test for ascertaining whether modesty has been outraged is whether the action of the offender is such as could be perceived as one which is capable of shocking the sense of decency of a woman. The above position was noted in Rupan Deal Bajaj (Mrs.) and Anr. v. Kanwar Pal Singh Gill and Anr., [1995] 6 SCC 194.

When the above test is applied in the present case, keeping in view the total fact situation, the inevitable conclusion is that the acts of accused appellant and the concrete role be consistently played from the beginning proved combination of persons and minds as well and as such amounted to “outraging of her modesty” for it was an affront to the normal sense of feminist decency.”

Determining the parameters in granting anticipatory bail in cases of serious offences. The Supreme Court in Bhadresh Bipinbhai Sheth vs State Of Gujarat & Anr reported in (2016) 1 SCC 152 after analyzing the entire law has observed as under:-

“(a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;

(c) The possibility of the applicant to flee from justice;

(d) The possibility of the accused’s likelihood to repeat similar or other offences;

(e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

(f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

(g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because overimplication in the cases is a matter of common knowledge and concern;

(h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused in entitled to an order of bail.”

——————————————————————————————————————————-

IN THE HIGH COURT OF DELHI AT NEW DELHI

BAIL APPLN. 1752/2017 & CRL.M.A. 14404/2017

SANJAY JAIN                                         …..Petitioner

versus

STATE OF NCT OF DELHI                     ….Respondent

HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

  1. By way of the present petition filed under Section 438 of the Criminal Procedure Code,1973 (hereinafter referred as ‘Cr.P.C.), the petitioner seeks grant of anticipatory bail in respect of FIR No. 0308 dated 21.07.2017, under Section 354/354A/506 of The Indian Penal Code,1860(hereinafter referred as ‘IPC’), registered by P.S. Jafarabad, New-Delhi.
  2. Briefly stated the facts of the case are that the complaint was lodged on 21.07.2017 by one Dimple who alleged that, on 17.07.2017 at around 4 pm her brother-in-law (devar), who used to stay with her mother-in-law, had come to her house when she was alone at home and forcefully tried to make physical relations with her and even threatened her when she objected. The alleged incident was narrated by her, to her husband who did not pay any heed to it and then, later she narrated it to her brother and her aunt. She reported the incident to the police officials and the complaint was lodged under the Sections 354/354A/506 of IPC.
  3. Ms. Ishita Jain, the learned counsel for the petitioner contended that that the present FIR filed against the petitioner is false and fabricated; that the petitioner visited the house of the prosecutrix on an invitation made by her for lunch; that the prosecutrix threatens her husband and his family members many a times of filing false cases of domestic violence, sexual harassment etc; that in the year 2005, she filed a false case of domestic violence against her husband, which was later on withdrawn by her; that her behavior towards her husband and his family is unreasonable; that she even went on a vacation, with her husband along with the petitioner and a friend, a month before filing the FIR. Hence, the present petition should be allowed.
  4. Per Contra, learned APP has vehemently opposed the bail application by stating that the petitioner has been evading arrest and has not joined the investigation. He further alleged that the anticipatory bail application has been previously rejected by the learned ASJ keeping in view the seriousness of the allegations. Hence, the present petition is liable to be set aside.
  5. I have heard the learned counsel for the parties and perused the material available on record.
  6. Before adverting to the question raised in the present petition, it is seen that the petitioner is charged for the offences under Sections 354/354A/506 of IPC. Section 354 IPC, makes penal the assault or use of criminal force to a woman to outrage her modesty. The essential ingredients of offence under Section 354 IPC are: (a) that the assault must be on a woman; (b) that the accused must have used criminal force on her; (c) that the criminal force must have been used on the woman intending thereby to outrage her modesty. In Raju Pandurang Mahale vs State Of Maharashtra And Anr reported in (2004) 4 SCC 371, it has been observed that :

“What constitutes an outrage to female modesty is nowhere defined. The essence of a woman’s modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a women, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such ourtrage alone for its object. As indicated above, the word ‘modesty’ is not defined in IPC. The shorter Oxford Dictionary (Third Edn.) defines the word ‘modesty’ in relation to woman as follows: “Decorous in manner and conduct; not forward or lowe; Shame-fast: Scrupulously chast.” Modesty is defined as the quality of being modest; and in relation to woman, “womanly propriety of behaviour; scrupluous chastity of thought, speech and conduct.” It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. As observed by Justice Patterson in Rex v. James Llyod, (1876) 7 C & P 817. In order to find the accused guilty of an assault with intent to commit a rape, court must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part. The point of distinction between an offence of attempt to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he was just going to have sexual connection with her. Webster’s Third New International Dictionary of the English Language defines modesty as “freedom from coarseness, indelicacy or indecency, a regard for propriety in dress, speech or conduct”. In the Oxford English Dictionary (1933 Edn.), the meaning of the word ‘modesty’ is given as “womanly propriety of behaviour: scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions.” In State of Punjab v. Major Singh, AIR (1967) SC 63 a question arose whether a female child of seven and a half months could be said to be possessed of ‘modesty’ which could be outraged. In answering the above question the majority view was that when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that must fall within the mischief of Section 354 IPC. Needless to say, the “common notions of mankind” referred to have to be gauged by contemporary societal standards. It was further observed in the said case that the essence of a woman’s modesty is her sex and from her very birth she possess the modesty which is the attribute of her sex. From the above dictionary meaning of ‘modesty’ and the interpretation given to that word by this Court in Major Singh’s case (supra) the ultimate test for ascertaining whether modesty has been outraged is whether the action of the offender is such as could be perceived as one which is capable of shocking the sense of decency of a woman. The above position was noted in Rupan Deal Bajaj (Mrs.) and Anr. v. Kanwar Pal Singh Gill and Anr., [1995] 6 SCC 194.

When the above test is applied in the present case, keeping in view the total fact situation, the inevitable conclusion is that the acts of accused appellant and the concrete role be consistently played from the beginning proved combination of persons and minds as well and as such amounted to “outraging of her modesty” for it was an affront to the normal sense of feminist decency.”

  1. The petitioner has been charged for the offence under Section 354 IPC i.e assault/criminal force to a woman to outrage her modesty as well as for the offence under Section 354A IPC i.e physical contact with explicit sexual overtures and demand of sexual favour. Further, for the offence under Section 506 IPC, which states that “506. Punishment for criminal intimidation.– Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.–And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.”
  2. Keeping in view the above legal proposition, it is observed in the facts and circumstances of the present case that the prosecutrix has made specific allegations in her complaint against the petitioner during lodging of the FIR and has further stated on similar lines during recording of her statements under Section 164 Cr.P.C where it has been explicitly stated by her that the petitioner always tried to make physical relations with her in absence of her husband; that even her husband as well as her mother-in-law never supported her to proceed against the petitioner; that on 17.07.2017, he visited her house and forcibly tried kissing her, touching her, tore off her clothes and harassed her.
  3. On perusal of the statements made by her against the petitioner, it is observed that the allegations against the petitioner are grave and serious. Also, in Status Report, it has been stated that the investigation is still in process and the petitioner herein is evading arrest by not joining the investigation. Thus, the chance of the petitioner escaping the procedure of law, tampering with the evidence or threatening the complainant exists. In my view, since the case is at the threshold and the investigations are underway, it will be practically scuttling the investigation in case the anticipatory bail is granted to the petitioner which will create hurdles in arriving at the truth.
  4. Determining the parameters in granting anticipatory bail in cases of serious offences. The Supreme Court in Bhadresh Bipinbhai Sheth vs State Of Gujarat & Anr reported in (2016) 1 SCC 152 after analyzing the entire law has observed as under:-

“(a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;

(c) The possibility of the applicant to flee from justice;

(d) The possibility of the accused’s likelihood to repeat similar or other offences;

(e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

(f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

(g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because overimplication in the cases is a matter of common knowledge and concern;

(h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused in entitled to an order of bail.”

  1. In view of the aforesaid settled principles, the facts and circumstances of the present case and perusing the allegations leveled against the petitioner, and considering the gravity of offence, this court is not inclined to grant anticipatory bail to the petitioner. Accordingly, the petition stand dismissed along with the pending application.
  2. Observations made in the order shall have no impact on the merits of the case.

SANGITA DHINGRA SEHGAL

 The offence punishable under Section 354 of the Indian Penal Code. reads as under:

  “Assault or criminal force to woman with intent to outrage her modesty – Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”.

All the ingredients of offence punishable under Section 354 of the Indian Penal Code such as, the criminal force applied on the woman and that force had been used on the woman intending to outrage her modesty or knowing that the act would likely to outrage her modesty are proved beyond reasonable doubt and accused has been rightly convicted by the learned Trial Court under Section 354 of the Indian Penal Code.

At this juncture, it is appropriate to incorporate Section 354 IPC 354. Assault or criminal force to woman with intent to outrage her modesty.Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. The ingredients reads as follows:

Essential ingredients are as follows:

  1. A woman was assaulted or criminal force was used.
  2. Thereby accused intended to outrage her modesty.
  3. Or knowing that her modesty will be outraged.
  4. The essential ingredients of the offence under Section 354 IPC are as under.-

(i) that the person assaulted must be a woman;

(ii) that the accused must have used criminal force on her; and

(iii) that the criminal force must have been used on the woman intending thereby to outrage her modesty.

The law with regard to the grant of leave is well settled by a catena of judgments. Leave to Appeal can be granted only where it is shown that the conclusions arrived at by the Trial Court are perverse or there is misapplication of law or any legal principle. The High Court cannot entertain a petition merely because another view is possible or that another view is more conceivable. In Arulvelu and Anr. vs. State : 2009 (10) SCC 206, while referring with approval the earlier judgment in Ghurey Lal Vs. State of Uttar Pradesh : (2008) 10 SCC 450, the Supreme Court reiterated the principles which must be kept in mind by the High Court while entertaining an Appeal against acquittal. The principles are:

“1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court’s acquittal bolsters the presumption that he is innocent.

  1. The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court’s conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.
  2. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.
  3. The appellate court may only overrule or otherwise disturb the trial court’s acquittal if it has “very substantial and compelling reasons” for doing so.
  4. If two reasonable or possible views can be reached – one that leads to acquittal, the other to conviction – the High Courts/appellate courts must rule in favour of the accused”.

It is a settled principle of criminal jurisprudence that the burden of proof lies on the prosecution and the prosecution has to prove a charge beyond reasonable doubt. The accused has a right to fair trial and the presumption of innocence is in favour of the accused.

Discharge of Accused in Criminal Cases.

In Bhushan Kumar v. State (NCT of Delhi), (2012) 5 SCC 424, the Supreme Court observed that it is the bounden duty of the Trial Court in Section 251 Cr.P.C. to satisfy whether the offence against the accused is made out or not and to discharge the accused if no case is made out against him. The relevant findings of the Supreme Court are reproduced hereunder:-

“20. It is inherent in Section 251 of the Code that when an accused appears before the trial Court pursuant to summons issued under Section 204 of the Code in a summons trial case, it is the bounden duty of the trial Court to carefully go through the allegations made in the charge-sheet or complaint and consider the evidence to come to a conclusion whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accusation to the accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as per Section 239 of the Code.”

However, in a warrant trial instituted otherwise than on a police report, when the accused appears or is brought before the Magistrate under Section 244(1) Cr.P.C., the Magistrate has to hear the prosecution and take all such evidence, as may be produced in support of the prosecution. In this, the Magistrate may issue summons to the witnesses also under Section 244(2) Cr.P.C. on the application by prosecution. All this evidence is evidence before charge. It is after all this, evidence is taken, then the Magistrate has to consider under Section 245(1) Cr.P.C., whether any case against the accused is made out, which, if unrebutted, would warrant his conviction, and if the Magistrate comes to the conclusion that there is no such case made out against the accused, the Magistrate proceeds to discharge him. On the other hand, if he is satisfied about the prima facie case against the accused, the Magistrate would frame a charge under Section 246(1) Cr.P.C. The complainant then gets the second opportunity to lead evidence in support of the charge unlike a warrant trial on police report, where there is only one opportunity.

In the warrant trial instituted otherwise than the police report, the complainant gets two opportunities to lead evidence, firstly, before the charge is framed and secondly, after the charge. Of course, under Section 245(2) Cr.P.C., a Magistrate can discharge the accused at any previous stage of the case, if he finds the charge to be groundless.

Sec.248. Acquittal or conviction.

(1) If, in any case under this Chapter in which a charge has been framed, the Magistrate finds the accused not guilty, he shall record an order of acquittal.

(2) Where, in any case under this Chapter, the Magistrate finds the accused guilty, but does not proceed in accordance with the provisions

of section 325 or section 360, he shall, after hearing the accused on the question of sentence, pass sentence upon him according to law.

(3) Where, in any case under this Chapter, a previous conviction is charged under the provisions of sub- section (7) of section 211 and the accused does not admit that he has been previously convicted as alleged in the charge, the Magistrate may, after he has convicted the said accused, take evidence in respect of the alleged previous conviction, and shall record a finding thereon: Provided that no such charge shall be read out by the Magistrate nor shall the accused be asked to plead thereto nor shall the previous conviction be referred to by the prosecution or in any evidence adduced by it, unless and until the accused has been convicted under sub- section (2).

A perusal of section 248 Cr.P.C. shows that the Magistrate may either acquit the accused but in case he finds him guilty, he may either proceed under section 325 Cr.P.C. or under section 360 Cr.P.C. and in case he does not chose either of the said two options, he shall proceed to hear the accused on quantum of sentence and impose sentence according to law. In other words, provisions under section 325 Cr.P.C. would come into play after a finding regarding guilt has been recorded. It further becomes evident that the proceedings before passing any order for resorting to 325 Cr.P.C or for releasing him on probation u/s 360 Cr.P.C. or imposing sentence upon the accused are of the same nature and kind and different kinds of proceedings are not visualised. This is what the Magistrate has done in the present case wherein while aquitting one of the accused he has recorded a finding regarding guilt of the other accused.

Section 42 in The Narcotic Drugs and Psychotropic Substances Act, 198

1[42. Power of entry, search, seizure and arrest without warrant or authorisation.—

(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,—

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.]


 

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 459 OF 2017

SK RAJU @ ABDUL HAQUE @ JAGGA                                    …..APPELLANT

Versus

STATE OF WEST BENGAL                                            …..RESPONDENT

JUDGMENT

Dr Dhananjaya Y Chandrachud 1 The present appeal, by special leave, is directed against a judgment dated 19 February 2016 of a Division Bench of the Calcutta High Court. The High Court upheld the conviction of the appellant by the Additional Sessions Judge (“ASJ”) and Special Court under the Narcotic Drugs and Psychotropic Signature Not Verified Substances Act 1985 (“the Act”). On 15 February 2014, the ASJ had convicted Digitally signed by CHETAN KUMAR Date: 2018.09.05 14:51:16 IST Reason:

the appellant of an offence punishable under Section 20(b)(ii)(C) of the Act. The
appellant was sentenced to 14 years of rigorous imprisonment and directed to pay a fine of Rs 1,40,000.

2 The facts of the case are as follows. On 15 November 2011, Sub- Inspector Prasanta Kr. Das, Narcotics Cell, DD (PW-2) received information that a drug dealer would be in the vicinity of Tiljala Falguni Club, 138B/1, Picnic Garden Road, near Tiljala Police Station to supply narcotic drugs in the afternoon. PW-2 sought permission from the Assistant Commissioner of Police, Anti-Narcotics Department, DD to organize a raid (Exhibit-2). Permission was granted by the superior officer on the same day and a raiding team consisting of PW-2 and others reached the spot at about 12.50 pm. At around 1.40 pm, the source of the information pointed out to the appellant who was coming along Picnic Garden Road. The appellant was intercepted and detained immediately by the raiding party in front of Falguni Club. The appellant was informed about the reasons for his detention and the identities of the raiding party were disclosed to him. Subsequently, the appellant also disclosed his identity to the raiding party. PW-5 was one of the two independent witnesses who agreed to be a witness to this search. The appellant was informed about his legal right to be searched either in the presence of a magistrate or a gazetted officer (Exhibit-

3). The appellant opted for being searched by a gazetted officer. A gazetted officer, Inspector Joysurja Mukherjee (“PW-4”), arrived on the scene at about 3.20 pm. He provided the appellant with a “second option”. The appellant was asked by PW-4 whether he wished to be searched in the presence of a gazetted
officer or a magistrate (Exhibit-4). Once again, the appellant consented to be searched in the presence of a gazetted officer. PW-4 then inquired of the appellant whether he wanted to search PW-2 before the latter would carry out his search. The appellant agreed to search PW-2 before his own search was carried out by PW-2. No narcotic substance was recovered from the person of PW-2. PW-2 recovered nineteen “deep brown / blackish broken rectangular sheets” from a black polythene packet which was inside a biscuit colour jute bag, which the appellant was carrying in his right hand. The sheets were tested by PW-2 on the spot with the help of a test kit. The substance was found to be charas. The substance was also weighed using a weighing scale. The appellant was found to be in possession of 1.5 kilograms of charas. Cash amounting to Rs. 2,400/- was recovered from the trouser of the appellant. 3 Learned counsel for the appellant has argued that there was non- compliance with Section 42 of the Act. After PW-2 was intimated about the appellant’s arrival, he sought permission from the Assistant Commissioner of Police, Anti-Narcotics Department. Upon receipt of the letter of permission from the Assistant Commissioner, PW-2 proceeded to the place of the occurrence. PW-2 admitted in his cross-examination that he was aware of the gravity of the need for compliance with Section 42. However, apart from a letter seeking permission to act on the information which was addressed to a superior officer, he did not (it was urged) diarise it elsewhere. Learned counsel urged that PW- 2 had not complied with the mandatory requirements of Section 42, as a result
of which the trial stood vitiated. He has relied on the following decisions of this Court to buttress the submission: Abdul Rashid Ibrahim Mansuri v State of Gujarat (“Mansuri”),1 Directorate of Revenue v Mohammed Nisar Holia (“Holia”)2 and State of Rajasthan v Jagraj Singh (“Jagraj”).3 4 Learned counsel for the appellant also submitted that Section 50 has also not been complied with. According to him, not only was the bag of the appellant searched, but a search of the person of the appellant also resulted in the recovery of cash in the amount of Rs. 2,400/- from the left pocket of his trouser. Hence, it was urged by the learned counsel that though Section 50 was mandatorily required to be complied with, there was a breach of observance. Since the appellant was merely given an ‘option’ by PW-2 and PW-4 to be searched before a gazetted officer and was not informed that it was his legal right to be searched before a gazetted officer or a magistrate, the search was, it was urged, vitiated. On this aspect, learned counsel for the appellant has relied on the following judgments of this Court: Myla Venkateswarlu v State of Andhra Pradesh (“Venkateswarlu”),4 State of Rajasthan v Parmanand (“Parmanand”)5 and Namdi Francis Nwazor v Union of India (“Namdi”).6 On the other hand, the learned counsel appearing on behalf of the respondent- State has supported the judgment of the High Court and the legality of the 1 (2000) 2 SCC 513.

 

2 (2008) 2 SCC 370.

(2016) 11 SCC 687.

4 (2012) 5 SCC 226.

5 (2014) 5 SCC 345.

6 (1998) 8 SCC 534.

conviction. He argued that since the search was carried out in a public place, this case falls solely within the ambit of Section 43 and compliance with Section 42 was not necessary. Learned counsel for the respondent-State also urged that Section 50 is not attracted when the search involves the search of a bag or an article belonging to a person.

5 Section 42 of the Act deals with the power of entry, search, seizure and arrest without warrant or authorization. It reads thus:

“42. Power of entry, search, seizure and arrest without warrant or authorisation.— (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,—

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or
conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:

Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector:

Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.” Section 43 of the Act confers powers on the empowered officer to seize a substance and arrest a suspect in a public place. It provides thus:

“43. Power of seizure and arrest in public place.— Any officer of any of the departments mentioned in section 42 may—

(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act;

(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this
Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.

Explanation.— For the purposes of this section, the expression “public place” includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.” [Emphasis supplied] 6 We are unable to accept the submission made by the learned counsel for the appellant that Section 42 is attracted to the facts of the present case. In State of Punjab v Baldev Singh (“Baldev Singh”),7 Chief Justice Dr A S Anand speaking for a Constitution Bench of this Court, held:

“The material difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any Narcotic Drug or Psychotropic Substances in a public place where such possession appears to him to be unlawful.” [Emphasis supplied] In Narayanaswamy Ravishankar v Assistant Director, Directorate of Revenue Intelligence,8 a three judge Bench of this Court considered whether the empowered officer was bound to comply with the mandatory provisions of Section 42 before recovering heroin from the suitcase of the appellant at the airport and subsequently arresting him. Answering the above question in the negative, the Court held:

7 (1999) 6 SCC 172.

8 (2002) 8 SCC 7.

“In the instant case, according to the documents on record and the evidence of the witnesses, the search and seizure took place at the airport which is a public place. This being so, it is the provisions of Section 43 of the NDPS Act which would be applicable. Further, as Section 42 of the NDPS Act was not applicable in the present case, the seizure having been effected in a public place, the question of non-compliance, if any, of the provisions of Section 42 of the NDPS Act is wholly irrelevant.” In Krishna Kanwar (Smt) Alias Thakuraeen v State of Rajasthan,9 a two judge Bench of this Court considered whether a police officer who had prior information was required to comply with the provisions of Section 42 before seizing contraband and arresting the appellant who was travelling on a motorcycle on the highway. Answering the above question in the negative, the Court held:

“Section 42 comprises of two components. One relates to the basis of information i.e.: (i) from personal knowledge, and (ii) information given by person and taken down in writing. The second is that the information must relate to commission of offence punishable under Chapter IV and/or keeping or concealment of document or article in any building, conveyance or enclosed place which may furnish evidence of commission of such offence. Unless both the components exist Section 42 has no application. Sub-

section (2) mandates, as was noted in Baldev Singh case that where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. Therefore, sub-section (2) only comes into operation where the officer concerned does the enumerated acts, in case any offence under Chapter IV has been committed or documents etc. are concealed in any building, conveyance or enclosed place. Therefore, the commission of the act or concealment of document etc. must be in any building, conveyance or enclosed place.” [Emphasis supplied] 9 (2004) 2 SCC 608; Rajendra v State of M.P ., (2004) 1 SCC 432.
7 An empowered officer under Section 42(1) is obligated to reduce to writing the information received by him, only when an offence punishable under the Act has been committed in any building, conveyance or an enclosed place, or when a document or an article is concealed in a building, conveyance or an enclosed place. Compliance with Section 42, including recording of information received by the empowered officer, is not mandatory, when an offence punishable under the Act was not committed in a building, conveyance or an enclosed place. Section 43 is attracted in situations where the seizure and arrest are conducted in a public place, which includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public. 8 The appellant was walking along the Picnic Garden Road. He was intercepted and detained immediately by the raiding party in front of Falguni Club, which was not a building, conveyance or an enclosed place. The place of occurrence was accessible to the public and fell within the ambit of the phrase “public place” in the explanation to Section 43. Section 42 had no application. 9 The cases relied on by the learned counsel for the appellant will also not apply in the context of the facts before us. In Mansuri, an auto-rickshaw driver was intercepted by police personnel. Four gunny bags of charas were recovered from the auto-rickshaw. The police officer who had prior information about transportation of some narcotic substance, had neither taken down the information before carrying out the seizure and arrest, nor apprised his superior
officer. He contended that the action taken by him was under Section 43 and not Section 42. Rejecting the argument of the State, this Court held that compliance with Section 42 was required as the auto-rickshaw was a private vehicle and not a public conveyance as contemplated under Section 43. Similarly, in Jagraj, contraband was recovered from a jeep which was intercepted by police personnel on a public road after receiving prior information. The police officer who had received the information, admitted to not taking it down in writing, contending that Section 43 would be applicable. Rejecting the argument of the State, this Court held that the jeep which was intercepted, was not a public conveyance within the meaning of Section 43 and compliance with Section 42(1) was therefore mandatory. In Holia, Mandrax tablets were recovered from the hotel room of the respondent. The information was not reduced to writing by the officer who had first received the information. The State claimed that compliance with Section 42 was not required as the hotel was a public place. Rejecting the submission of the State, this Court held that while a hotel is a public place, a hotel room inside it is not a public place. This Court held thus:

“Section 43, on plain reading of the Act, may not attract the rigours of Section 42 thereof. That means that even subjective satisfaction on the part of the authority, as is required under sub-section (1) of Section 42, need not be complied with, only because the place whereat search is to be made is a public place. If Section 43 is to be treated as an exception to Section 42, it is required to be strictly complied with … It is also possible to contend that where a search is required to be made at a public place which is open to the general public, Section 42 would have no application but it may be another thing to contend that search is being made on prior information and there would be enough time for compliance of reducing the information to writing,
informing the same to the superior officer and obtain his permission as also recording the reasons therefore coupled with the fact that the place which is required to be searched is not open to public although situated in a public place as, for example, room of a hotel, whereas hotel is a public place, a room occupied by a guest may not be. He is entitled to his right of privacy. Nobody, even the staff of the hotel, can walk into his room without his permission. Subject to the ordinary activities in regard to maintenance and/or housekeeping of the room, the guest is entitled to maintain his privacy.” [Emphasis supplied] There is hence no substance in the first submission.

10 Section 50 of the Act deals with conditions under which search of persons shall be conducted. It states:

“50. Conditions under which search of persons shall be conducted.— (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under
section100 of the Code of Criminal Procedure, 1973 (2 of 1974).

(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.” According to Section 50(1), an empowered officer should necessarily inform the suspect about his legal right, if he so requires, to be searched in the presence of a gazetted officer or a magistrate. In Vijaysinh Chandubha Jadeja v State of Gujarat (“Vijaysinh”),10 a Constitution Bench of this Court interpreted Section 50 thus:

“The mandate of Section 50 is precise and clear, viz. if the person intended to be searched expresses to the authorised officer his desire to be taken to the nearest gazetted officer or the Magistrate, he cannot be searched till the gazetted officer or the Magistrate, as the case may be, directs the authorised officer to do so … In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under Sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision … We are of the opinion that the concept of “substantial compliance” with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez (supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of Sub-

10 (2011) 1 SCC 609.

section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh’s case (supra).” The principle which emerges from Vijaysinh is that the concept of “substantial compliance” with the requirement of Section 50 is neither in accordance with the law laid down in Baldev Singh, nor can it be construed from its language. [Reference may also be made to the decision of a two judge Bench of this Court in Venkateswarlu]. Therefore, strict compliance with Section 50(1) by the empowered officer is mandatory. Section 50, however, applies only in the case of a search of a person. In Baldev Singh, the Court held “on its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises, etc.” In State of Himachal Pradesh v Pawan Kumar (“Pawan Kumar”),11 a three judge Bench of this Court held that the search of an article which was being carried by a person in his hand, or on his shoulder or head, etc., would not attract Section 50. It was held thus:

“In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word “person” occurring in Section 50 of the Act …After the decision in Baldev Singh, this Court has consistently held that Section 50 would only apply to search of a person and not to any bag, article or container, etc. being carried by him.” In Parmanand, on a search of the person of the respondent, no substance was found. However, subsequently, opium was recovered from the bag of the respondent. A two judge Bench of this Court considered whether compliance 11 (2005) 4 SCC 350.

with Section 50(1) was required. This Court held that the empowered officer was required to comply with the requirements of Section 50(1) as the person of the respondent was also searched. [Reference may also be made to the decision of a two judge Bench of this Court in Dilip v State of Madhya Pradesh]12. It was held thus:

“Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application.” Moreover, in the above case, the empowered officer at the time of conducting the search informed the respondent that he could be searched before the nearest Magistrate or before the nearest gazetted officer or before the Superintendent, who was also a part of the raiding party. The Court held that the search of the respondent was not in consonance with the requirements of Section 50(1) as the empowered officer erred in giving the respondent an option of being search before the Superintendent, who was not an independent officer.

It was held thus:

“We also notice that PW 10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before the nearest gazetted officer or before PW 5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution case that the respondents informed the officers that they would like to be searched before PW 5 J.S. Negi by PW 10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to the nearest Magistrate or the nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer.

Therefore, it was improper for PW 10 SI Qureshi to tell the 12 (2007) 1 SCC 450.

respondents that a third alternative was available and that they could be searched before PW 5 J.S. Negi, the Superintendent, who was part of the raiding party. PW 5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW 5 J.S. Negi, the search would have been vitiated or not. But PW 10 SI Qureshi could not have given a third option to the respondents when Section 50(1) of the NDPS Act does not provide for it and when such option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW 10 SI Qureshi is vitiated.” The question which arises before us is whether Section 50(1) was required to be complied with when charas was recovered only from the bag of the appellant and no charas was found on his person. Further, if the first question is answered in the affirmative, whether the requirements of Section 50 were strictly complied with by PW-2 and PW-4.

11 As evidenced by Exhibit-3, a first option was given to the appellant. PW- 2 informed him that it was his legal right to be searched either in the presence of a magistrate or in the presence of a gazetted officer. The appellant was then asked to give his option by indicating whether he wanted to be searched by a magistrate or a gazetted officer. The appellant indicated that he wanted the search to be carried out in the presence of a gazetted officer. When PW-4 arrived, he was introduced to the detainee as a gazetted officer. As evidenced by Exhibit-4, PW-4 then gave the appellant a second option. He inquired of him again, whether he wanted to be searched in the presence of a gazetted officer or in the presence of a magistrate. The appellant reiterated his desire to be
searched in the presence of a gazetted officer. Before the search of the appellant commenced, the gazetted officer asked the appellant whether he wanted to search PW-2 before his own search was carried out by PW-2. The appellant agreed to search PW-2 before the latter carried out his search. On conducting the search, only personal belongings of PW-2 were found by the appellant. On the search of the appellant in the presence of the gazetted officer, a biscuit colour jute bag was recovered from the appellant, and Rs. 2,400/- cash in the denomination of 24 notes of Rs. 100/- each was found in the left pocket of the appellant’s trouser. When the bag was opened, a black polythene cover containing nineteen rectangular broken sheets of a blackish / deep brown colour weighing 1.5 kilograms was recovered. The sheets were tested and were found to be charas.

PW-2 conducted a search of the bag of the appellant as well as of the appellant’s trousers. Therefore, the search conducted by PW-2 was not only of the bag which the appellant was carrying, but also of the appellant’s person. Since the search of the person of the appellant was also involved, Section 50 would be attracted in this case. Accordingly, PW-2 was required to comply with the requirements of Section 50(1). As soon as the search of a person takes place, the requirement of mandatory compliance with Section 50 is attracted, irrespective of whether contraband is recovered from the person of the detainee or not. It was, therefore, imperative for PW-2 to inform the appellant of his legal right to be searched in the presence of either a gazetted officer or a magistrate.
From Exhibit-3, it can be discerned that the appellant was informed of his legal right to be searched in the presence of a magistrate or a gazetted officer. The appellant opted for the latter alternative. Exhibit-4 is a record of the events after the arrival of PW-4 on the scene. After the arrival of PW-4, the appellant was once again asked by him, whether he wished to be searched in the presence of a gazetted officer or a magistrate. This was the second option which was presented to him. When he reiterated his desire to be searched before a gazetted officer, PW-4 inquired of the appellant whether he wished to search PW-2 before his own search was conducted by PW-2. The appellant agreed to search PW-2. Only the personal belongings of PW-2 were found by the appellant. It was only after this that a search of the appellant was conducted and charas recovered. Before the appellant’s search was conducted, both PW- 2 and PW-4 on different occasions apprised the appellant of his legal right to be searched either in the presence of a gazetted officer or a magistrate. The options given by both PW-2 and PW-4 were unambiguous. Merely because the appellant was given an option of searching PW-2 before the latter conducted his search, would not vitiate the search. In Parmanand, in addition to the option of being searched by the gazetted officer or the magistrate, the detainee was given a ‘third’ alternative by the empowered officer which was to be searched by an officer who was a part of the raiding team. This was found to be contrary to the intent of Section 50(1). The option given to the appellant of searching PW-2 in the case at hand, before the latter searched the appellant, did not vitiate the process in which a search of the appellant was conducted. The search of
the appellant was as a matter of fact conducted in the presence of PW-4, a gazetted officer, in consonance with the voluntary communication made by the appellant to both PW-2 and PW-4. There was strict compliance with the requirements of Section 50(1) as stipulated by this Court in Vijaysinh. 12 As we have already held that Section 50 was attracted in the present case, we do not need to decide on the applicability of Namdi to the facts of the present case. We have held that Section 50 was complied with. Having regard to the above position, we do not find any merit in the appeal. 13 The Criminal Appeal shall accordingly stand dismissed.

..CJI [DIPAK MISRA]

.J [Dr Dhananjaya Y Chandrachud] .

.J [INDIRA BANERJEE] New Delhi;

In a judgment rendered by the Hon’ble Supreme Court in Narinder Singh and others vs. State of Punjab and another, 2014(6) SCC 466, the Hon’ble Apex Court has laid down certain principles and guidelines which should be kept in mind while quashing of FIRs pertaining to noncompoundable offence. For ready reference paragraphs No. 29.2 and 29.5 are reproduced as under :-

“29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure :

(i) ends of justice, or

(ii) to prevent abuse of the process of any court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives. 29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case.”

 Even in a judgment rendered by the Hon’ble Supreme Court in Madan Mohan Abbot vs State Of Punjab, 2008 (4) SCC 582, it has been held that it is advisable that in disputes where the question involved is of a purely personal nature, the Court should ordinarily accept the terms of the compromise even in criminal proceedings. Relevant paragraph of the said judgment is reproduced herein below :-

“5. It is on the basis of this compromise that the application was filed in the High Court for quashing of proceedings which has been dismissed by the impugned order. We notice from a reading of the FIR and the other 3 of 5 documents on record that the dispute was purely a personal one between two contesting parties and that it arose out of extensive business dealings between them and that there was absolutely no public policy involved in the nature of the allegations made against the accused. We are, therefore, of the opinion that no useful purpose would be served in continuing with the proceedings in the light of the compromise and also in the light of the fact that the complainant has, on 11th January 2004, passed away and the possibility of a conviction being recorded has thus to be ruled out.

Therefore, while relying upon the ratios of the aforesaid judgments, this Court is of the view that the compromise which has been entered into for quashing of an offence under Section 376 IPC and Section 6 of the POCSO Act on the basis of the compromise should be accepted. As 4 of 5 has been held in Narinder Singh & Ors. case (supra) those cases where a settlement is arrived at immediately after the alleged commission of the offence, the High Court may be liberal in accepting the settlement to quash the criminal proceedings. Moreover, there is a specific plea in the petition that continuation of the proceedings under the FIR in question would hamper the settlement of the prosecutrix in future.

 Consequently, keeping in view the peculiar facts and circumstances of the present case and in view of the above ratios of law, this petition is allowed.


 

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND

HARYANA AT CHANDIGARH

CRM-M-31825-2017

Date of decision: 19.01.2018

Deepak                                                           …Petitioner

Versus

 

State of Haryana and another                                  …Respondents

CORAM: HON’BLE MS. JUSTICE JAISHREE THAKUR

JAISHREE THAKUR, J. (Oral)

  1. This petition has been filed under Section 482 of the Code of Criminal Procedure seeking quashing of FIR No. 461 dated 11.12.2015, registered under Sections 376(1)A, 452 and 506 of the IPC and Section 6 of the Protection of Children from Sexual Offences Act at Police Station Hansi Sadar, District Hisar and all subsequent proceedings arising therefrom in view of the compromise entered into between the parties.
  2. The aforesaid FIR has been registered on the complaint of respondent No. 2/prosecutrix herein. In brief, the facts of the case are that respondent No. 2 is a student of class 10. On 07.12.2015, she was sleeping in her room and her mother was sleeping outside. Suddenly, Vicky son of Kashmira entered into the house and after gagging the mouth of respondent No. 2 took her in a vacant plot, where he removed the salwar of respondent 1 of 5 No. 2 by showing her knife and committed rape upon her and threatened her that she would be killed if she discloses the incident to anyone. However, now with the intervention of respectable persons, the dispute has been amicably settled between the parties and they have entered into a compromise. In the petition, it has specifically been pleaded that pendency of these proceedings would hamper the settlement of the prosecutrix in future and it would be in the welfare of the prosecutrix if the FIR in question is quashed.
  3. By an order dated 10.11.2017, the parties were directed to appear before the trial Court so that their statement could be recorded regarding the genuineness of the compromise. The parties appeared before the Additional Sessions Judge at Hisar. In pursuance of the direction, a report has been received from the Additional Sessions Judge at Hisar, stating that the compromise arrived at between the parties is without any pressure or coercion from any one and the same appears to be genuine one.
  4. In normal circumstances, this Court would not entertain a matter when the non compoundable offences are heinous and serious in nature. In the instant case, the offence complained of includes offence punishable under Section 376 IPC and Section 6 of the POCSO Act which is an offence of grave nature. This Court is aware of the fact that time and again it has been held that an offence under Section 376 IPC is a grievous offence and considered as an offence against the society at large and thus, such matters should not be compromised. In the eyes of law, the offence of rape is serious and non-compoundable and the Courts should not in ordinary circumstances interfere and quash the FIR that has been registered.
  5. In a judgment rendered by the Hon’ble Supreme Court in Narinder Singh and others vs. State of Punjab and another, 2014(6) SCC 466, the Hon’ble Apex Court has laid down certain principles and guidelines which should be kept in mind while quashing of FIRs pertaining to noncompoundable offence. For ready reference paragraphs No. 29.2 and 29.5 are reproduced as under :-

“29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure :

(i) ends of justice, or

(ii) to prevent abuse of the process of any court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives. 29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case.”

  1. Even in a judgment rendered by the Hon’ble Supreme Court in Madan Mohan Abbot vs State Of Punjab, 2008 (4) SCC 582, it has been held that it is advisable that in disputes where the question involved is of a purely personal nature, the Court should ordinarily accept the terms of the compromise even in criminal proceedings. Relevant paragraph of the said judgment is reproduced herein below :-

“5. It is on the basis of this compromise that the application was filed in the High Court for quashing of proceedings which has been dismissed by the impugned order. We notice from a reading of the FIR and the other 3 of 5 documents on record that the dispute was purely a personal one between two contesting parties and that it arose out of extensive business dealings between them and that there was absolutely no public policy involved in the nature of the allegations made against the accused. We are, therefore, of the opinion that no useful purpose would be served in continuing with the proceedings in the light of the compromise and also in the light of the fact that the complainant has, on 11th January 2004, passed away and the possibility of a conviction being recorded has thus to be ruled out.

  1. We need to emphasize that it is perhaps advisable that in disputes where the question involved is of a purely personal nature, the Court should ordinarily accept the terms of the compromise even in criminal proceedings as keeping the matter alive with no possibility of a result in favour of the prosecution is a luxury which the Courts, grossly overburdened as they are, cannot afford and that the time so saved can be utilized in deciding more effective and meaningful litigation. This is a common sense approach to the matter based on ground of realities and bereft of the technicalities of the law.”
  2. In the judgment rendered in Gian Singh vs State of Punjab & Anr, reported as 2012(10) SCC 303 the basic principle of law as laid down is that where offences are purely private in nature and do not concern public policy, the power to quash proceedings involving non-compoundable offences on the basis of compromise can be exercised.
  3. Therefore, while relying upon the ratios of the aforesaid judgments, this Court is of the view that the compromise which has been entered into for quashing of an offence under Section 376 IPC and Section 6 of the POCSO Act on the basis of the compromise should be accepted. As 4 of 5 has been held in Narinder Singh & Ors. case (supra) those cases where a settlement is arrived at immediately after the alleged commission of the offence, the High Court may be liberal in accepting the settlement to quash the criminal proceedings. Moreover, there is a specific plea in the petition that continuation of the proceedings under the FIR in question would hamper the settlement of the prosecutrix in future.

 

  1. Consequently, keeping in view the peculiar facts and circumstances of the present case and in view of the above ratios of law, this petition is allowed and the FIR No. 461 dated 11.12.2015, registered under Sections 376(1)A, 452 and 506 of the IPC and Section 6 of the Protection of Children from Sexual Offences Act at Police Station Hansi Sadar, District Hisar and all subsequent proceedings arising out of the same are quashed qua the petitioner herein.

 

19.01.2018                                        (JAISHREE THAKUR)

Waseem Ansari                                           JUDGE