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criminal Law in india

 Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

There is no gainsaying that each incident of sexual harassment at the place of work, results in violation of the fundamental right to gender equality and the right to life and liberty — the two most precious fundamental rights guaranteed by the Constitution of India. As early as in 1993, at the ILO Seminar held at Manila, it was recognized that sexual harassment of women at the workplace was a form of “gender discrimination against women”. In our opinion, the contents of the fundamental rights guaranteed in our Constitution are of sufficient amplitude to encompass all facets of gender equality, including prevention of sexual harassment and abuse and the courts are under a constitutional obligation to protect and preserve those fundamental rights. That sexual harassment of a female at the place of work is incompatible with the dignity and honour of a female and needs to be eliminated and that there can be no compromise with such violations, admits of no debate. The message of international instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (“CEDAW”) and the Beijing Declaration which directs all State parties to take appropriate measures to prevent discrimination of all forms against women besides taking steps to protect the honour and dignity of women is loud and clear. The International Covenant on Economic, Social and Cultural Rights contains several provisions particularly important for women. Article 7 recognises her right to fair conditions of work and reflects that women shall not be subjected to sexual harassment at the place of work which may vitiate the working environment. These international instruments cast an obligation on the Indian State to gender-sensitise its laws and the courts are under an obligation to see that the message of the international instruments is not allowed to be drowned. This Court has in numerous cases emphasised that while discussing constitutional requirements, court and counsel must never forget the core principle embodied in the international conventions and instruments and as far as possible, give effect to the principles contained in those international instruments. The courts are under an obligation to give due regard to international conventions and norms for construing domestic laws, more so, when there is no inconsistency between them and there is a void in domestic law. (See with advantage — Prem Shankar Shukla v. Delhi Admn. [(1980) 3 SCC 526 : 1980 SCC (Cri) 815


 

         Prevention of sexual harassment.

  1. No woman shall be subjected to sexual harassment at any workplace.
  2. The following circumstances, among other circumstances, if it occurs or is persent in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment>-
  3. implied or explicit promise of preferential treatment in her employment; or
  4. implied or explicit threat of detrimental treatment in her employment; or

iii.        implied or explicit threat about her present or future employment status; or

  1. interference with her work or creating an intimidating or offensive or hostile work environment for her; or
  2. humiliating treatment likely to affect her health or safety.

—————————————————————————————————————————————–

 Complaint of sexual harassment

  1. Any aggrieved woman may make, in writing, a complaint of sexual harassment at work place to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident:

Provided that where such complaint cannot be made in writing, the Presiding Officer or any Member of the Internal Committee or the Chairperson or any Member of the Local Committee, as the case may be, shall render all reasonable assistance to the woman for making the complaint in writing:

Provided further that the Internal Committee or, as the case may be, the Local Committee may, for the reasons to be recorded in writing, extend the time limit not exceeding three months, if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period.

  1. Where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section.

 Constitution of Internal Complaints Committee.

  1. Every employer of a workplace shall, by an order in writing, constitute a Committee to be known as the “Internal Complaints Committee”:

Provided that where the offices or administrative units of the workplace are located at different places or divisional or sub-divisional level, the Internal Committee shall be constituted at all administrative units or offices.

  1. The Internal Committee shall consist of the following members to be nominated by the employer, namely:—
  2. a Presiding Officer who shall be a woman employed at a senior level at workplace from amongst the employees:

Provided that in case a senior level woman employee is not available, the Presiding Officer shall be nominated from other offices or administrative units of the workplace referred to in sub-section (l):

Provided further that in case the other offices or administrative units of the workplace do not have a senior level woman employee, the Presiding Officer shall be nominated from any other workplace of the same employer or other department or organisation;

  1. not less than two Members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge;
  2. one member from amongst non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment:

Provided that at least one-half of the total Members so nominated shall be women.

  1. The Presiding Officer and every Member of the Internal Committee shall hold office for such period, not exceeding three years, from the date of their nomination as may be specified by the employer.
  2. The Member appointed from amongst the non-governmental organisations or associations shall be paid such fees or allowances for holding the proceedings of the Internal Committee, by the employer, as may be prescribed.
  3. Where the Presiding Officer or any Member of the Internal Committee,- –
  4. contravenes the provisions of section 16; or
  5. has been convicted for an offence or an inquiry into an offence under any law for the time being in force is pending against him; or
  6. he has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him; or
  7. has so abused his position as to render his continuance in office prejudicial to the public interest, such Presiding Officer or Member, as the case may be, shall be removed from the Committee and the vacancy so created or any casual vacancy shall be filled by fresh nomination in accordance with the provisions of this section
  8. Inquiry Into complaint
  1. Subject to the provisions of section 10, the Internal Committee or the Local Committee, as the case may be, shall, where the respondent is an employee, proceed to make inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent and where no such rules exist, in such manner as may be prescribed or in case of a domestic worker, the Local Committee shall, if prima facie case exist, forward the complaint to the police, within a period of seven days for registering the case under section 509 of the Indian Penal Code, and any other relevant provisions of the said Code where applicable:

Provided that where the aggrieved woman informs the Internal Committee or the Local Committee, as the case may be, that any term or condition of the settlement arrived at under sub-section (2) of section 10 has not been complied with by the respondent, the Internal Committee or the Local Committee shall proceed to make an inquiry into the complaint or, as the case may be, forward the complaint to the police:

Provided further that where both the parties are employees, the parties shall, during the course of inquiry, be given an opportunity of being heard and a copy of the findings shall be made available to both the parties enabling them to make representation against the findings before the Committee.

  1. Notwithstanding anything contained in section 509 of the Indian Penal Code, the court may, when the respondent is convicted of the offence, order payment of such sums as it may consider appropriate, to the aggrieved woman by the respondent, having regard to the provisions of section 15.
  2. For the purpose of making an inquiry under sub-section (I), the Internal Committee. or the Local Committee, as the case may be, shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters, namely:-—
  3. summoning and enforcing the attendance of any person and examining him on oath;
  4. requiring the discovery and production of documents; and
  5. any other matter which may be prescribed.
  6. The inquiry under sub-section (I) shall be completed within a period of ninety days.

 Action during pendency of inquiry

  1. During the pendency of an inquiry, on a written request made by the aggrieved woman, the Internal Committee or the Local Committee, as the case may be, may recommend to the employer to—
  2. transfer the aggrieved woman or the respondent to any other workplace; or
  3. grant leave to the aggrieved woman up to a period of three months; or
  4. grant such other relief to the aggrieved woman as may be prescribed.
  5. The leave granted to the aggrieved woman under this section shall be in addition to the leave she would be otherwise entitled.
  6. On the recommendation of the Internal Committee or the Local Committee, as the case may be, under sub-section (1), the employer shall implement the recommendations made under sub-section (1) and send the report of such implementation to the Internal Committee or the Local Committee, as the case may be.

      Inquiry Report.

  1. On the completion of an inquiry under this Act, the Internal Committee or the Local Committee, as the case may be, shall provide a report of its findings to the employer, or as the case may be, the District Officer within a period often days from the date of completion of the inquiry and such report be made available to the concerned parties.
  2. Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has not been proved, it shall recommend to the employer and the District Officer that no action is required to be taken in the matter.
  3. Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as the case may be—
  4. to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed;
  5. to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as it may determine, in accordance with the provisions of section 15:

Provided that in case the employer is unable to make such deduction from the salary of the respondent due to his being absent from duty or cessation of employment it may direct to the respondent to pay such sum to the aggrieved woman:

Provided further that in case the respondent fails to pay the sum referred to in clause (II), the Internal Committee or, as the case may be, the Local Committee may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer.

  1. The employer or the District Officer shall act upon the recommendation within sixty days of its receipt by him. Punishment for false or malicious complaint and false evidence

 Punishment for false or malicious complaint and false evidence

  1. Where the Internal Committee or the Local Committee, as the case may be, arrives at a conclusion that the allegation against the respondent is malicious or the aggrieved woman or any other person making the complaint has made the complaint knowing it to be false or the aggrieved woman or any other person making the complaint has produced any forged or misleading document, it may recommend to the employer or the District Officer, as the case may be, to take action against the woman or the person who has made the complaint under sub-section (I) or sub-section (2) of section 9, as the case may be, in accordance with the provisions of the service rules applicable to her or him or where no such service rules exist, in such manner as may be prescribed:

Provided that a mere inability to substantiate a complaint or provide adequate proof need not attract     action against the complainant under this section:

Provided further that the malicious intent on part of the complainant shall be established after an inquiry    in accordance with the procedure prescribed, before any action IS recommended.

  1. Where the Internal Committee or the Local Committee, as the case may be, arrives at a conclusion that during the inquiry any witness has given false evidence or produced any forged or misleading document, it may recommend to the employer of the witness or the District Officer, as the case may be, to take action in accordance with the provisions of the service rules applicable to the said witness or where no such service rules exist, in such manner as may be prescribed.

 

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What is Money Laundering?.

Money Laundering refers to the conversion of money which has been illegally obtained, in such a way that it appears to have originated from a legitimate source.

What is the Law to regulate for Money Laundering in India ?.

Prevention of Money Laundering Act, 2002 is an Act of the Parliament of India enacted by the NDA government to prevent money-laundering and to provide for confiscation of property derived from money-laundering.

 Offence of money-laundering.-

Section 3 : Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime and projecting it as untainted property shall be guilty of offence of money-laundering.

Punishment for money-laundering.-

Section 4 :Whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine which may extend to five lakh rupees: Provided that where the proceeds of crime involved in money-laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words “which may extend to seven years”, t e words “which may extend to ten years” had been substituted.

   Section : 5 : Attachment of property involved in money-laundering.-

  1. Where the Director, or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section, has reason to believe (the reason for such belief to be recorde in writing), on the basis of material in his possession, that-
  2. any person is in possession of any proceeds of crime;
  3. such person has been charged of having committed a scheduled offence; and
  4. such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime under this Chapter, he may, by order in writing, provisionally attach such property for a period not exceeding ninety days from the date of the order, in the manner provided in the Second Schedule to the Income-tax Act, 1961 (43 of 1961) and the Director or the other office so authorised by him, as the case may be, shall be deemed to be an officer under sub-rule (e) of rule 1 of that Schedule: Provided that no such order of attachment shall be made unless, in relation to an offence under-
  5. Paragraph 1 of Part A and Part B of the Schedule, a report has been forwarded to a Magistrate under section 173 of the Code of Criminal Procedure, 1973 (2 of 1974); or
  6. Paragraph 2 of Part A of the Schedule, a police report or a complaint has been filed for taking cognizance of an offence by the Special Court constituted under sub-section (1) of section 36 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985).
  7. The Director, or any other officer not below the rank of Deputy Director, shall, immediately after attachment under sub-section (1), forward a copy of the order, along with the material in his possession, referred to in that sub-section, to the Adjud cating Authority, in a sealed envelope, in the manner as may be prescribed and such Adjudicating Authority shall keep such order and material for such period as may be prescribed.
  8. Every order of attachment made under sub-section (1) shall cease to have effect after the expiry of the period specified in that sub-section or on the date of an order made under sub-section (2) of section 8, whichever is earlier.
  9. Nothing in this section shall prevent the person interested in the enjoyment of the immovable property attached under sub-section (1) from such enjoyment. Explanation.-For the purposes of this sub-section, “person interested”, in relation to any immovable property, includes all persons claiming or entitled to claim any interest in the property.
  10. The Director or any other officer who provisionally attaches any property under sub-section (1) shall, within a period of thirty days from such attachment, file a complaint stating the facts of such attachment before the Adjudicating Authority.

          Search and seizure.-

  1. Where the Director, on the basis of information in his possession, has reason to believe (the reason for such belief to be recorded in writing) that any person-
  2. has committed any act which constitutes money-laundering, or
  3. is in possession of any proceeds of crime involved in money-laundering, or

iii.        is in possession of any records relating to money-laundering, then, subject to the rules made in this behalf, he may authorise any officer subordinate to him to-

  1. enter and search any building, place, vessel, vehicle or aircraft where he has reason to suspect that such records or proceeds of crime are kept;
  2. break open the lock of any door, box, locker, safe, salmirah or other receptacle for exercising the powers conferred by clause (a) where the keys thereof are not available;
  3. seize any record or property found as a result of such search;
  4. place marks of identification on such record or make or cause to be made extracts or copies therefrom;
  5. make a note or an inventory of such record or property;
  6. examine on oath any person, who is found to be in possession or control of any record or property, in respect of all matters relevant for the purposes of any investigation under this Act:

Provided that no search shall be conducted unless, in relation to an offence under-

  1. Paragraph 1 of Part A and Part B of the Schedule, a report has been forwarded to a Magistrate under section 173 of the Code of Criminal Procedure, 1973 (2 of 1974); or
  2. Paragraph 2 of Part A of the Schedule, a police report or a complaint has been filed for taking cognizance of an offence by the Special Court constituted under sub-section (1) of section 36 of the Narcotic Drugs and Psychotropic Substances Act, 1985 61 of 1985).
  3. The authority, who has been authorised under sub-section (1) shall, immediately after search and seizure, forward a copy of the reasons so recorded along with material in his possession, referred to in that sub-section, to the Adjudicating Authority n a sealed envelope, in the manner, as may be prescribed and such Adjudicating Authority shall keep such reasons and material for such period, as may be prescribed.
  4. Where an authority, upon information obtained during survey under section 16, is satisfied that any evidence shall be or is likely to be concealed or tampered with, he may, for reasons to be recorded in writing, enter and search the building or place where such evidence is located and seize that evidence: Provided that no authorisation referred to in sub-section (1) shall be required for search under this sub-section.
  5. The authority, seizing any record or property under this section, shall, within a period of thirty days from such seizure, file an application, requesting for retention of such record or property, before the Adjudicating Authority.

        Power to arrest.-

  1. If the Director, Deputy Director, Assistant Director or any other officer authorised in this behalf by the Central Government by general or special order, has on the basis of material in his possession, reason to believe (the reason for such belief to be recorded in writing) that any person has been guilty of an offence punishable under this Act, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest.
  2. The Director, Deputy Director, Assistant Director or any other officer shall, immediately after arrest of such person under sub-section (1), forward a copy of the order along with the material in his possession, referred to in that sub-section, to the Adjudicating Authority in a sealed envelope, in the manner, as may be prescribed and such Adjudicating Authority shall keep such order and material for such period, as may be prescribed.
  3. Every person arrested under sub-section (1) shall, within twenty-four hours, be taken to a Judicial Magistrate or a Metropolitan Magistrate, as the case may be, having jurisdiction: Provided that the period of twenty-four hours shall exclude the time necessary for the journey from the place of arrest to the Magistrate’s Court.

         What is the new Amendment in PMLA.

       Government introduces Bill to amend the Prevention of Money-laundering Act,          2002 through Finance Act, 2018 

Following amendments have been made in the Prevention of Money-laundering Act,   2002 (PMLA) through Finance Act 2018. The Amendments aim at further enhancing the   effectiveness of the Act, widen its scope and take care of certain procedural difficulties   faced by the Enforcement Directorate in prosecution of PMLA cases. The major   amendments proposed are as follows:

            Measures to enhance effectiveness of PMLA

  1. Amendment in definition of “proceeds of crime”:The definition of “proceeds of crime” in PMLA was amended in 2015 to include “property equivalent held within the country” in case proceeds of crime is taken out or held “outside the country”. The present amendment shall allow to proceed against property equivalent to proceeds to crime held outside the country also.
  2. Amendment in bail provisions: Amendment proposed in Section 45(1) would make the applicability of bail conditions uniform to all the offences under PMLA, instead of only those offences under the schedule which are liable to imprisonment of more than 3 years. This will be a significant step forward in delinking the proceedings against scheduled offences and Money laundering  offences under PMLA.

Further limit of Rs.one crore shall allow court to apply bail provisions more leniently to less serious PMLA cases.

  1. Corporate frauds included as Scheduled offence:Section 447 of Companies Act is being included as scheduled offence under PMLA so that Registrar of Companies in suitable cases would be able to report such cases for action by Enforcement Directorate under the PMLA provisions. This provision shall strengthen the PMLA with respect to Corporate frauds.
  2. Measures to enhance effectiveness of investigations

Section 5(1) of the Act provides that every order of provisional attachment passed by an officer of Enforcement Directorate shall cease to have effect after 180 days from the date of the provisional attachment order, unless confirmed by the Adjudicating Authority under PMLA within that period. The section is proposed to be amended to include the period of stay in this time limit of 180 days and also further period of not more than 30 days to take care of delays if any in communication of judicial orders.

  1. Under the existing provision of Section 8(3), presently, the Directorate is required to file prosecution immediately after confirmation by Adjudicating Authority. Proposed amendment gives 90 days more for investigation to ED, before prosecution is filed.
  2. New sub-section (2) of section 66 is being introduced to provide for clear guidelines to share the information relating to contraventions of other laws noticed during investigation by ED, with concerned authorities under the said Acts. This shall enable exchange of information among agencies and enhance effectiveness of efforts against black money.
  3. Measures for restoration of property of persons adversely affected by PMLA investigation

Present provisions under Section 8(8) allow distribution of confiscated property to the rightful claimants, only after the trial is complete. Present amendment allows Special Court, if it thinks fit, to consider the claims of the claimants for the purposes of restoration of such properties even during trial also, in such manner as may be prescribed.


 

Bail rejected in PMLA Cases Judgment.

IN THE HIGH COURT OF JHARKHAND AT RANCHI

B.A. No. 36 of 2011

Vikash Kumar Sinha                                     ……Petitioner

Versus

The State of Jharkhand through

Directorate of Enforcement                        …..Opposite Party

CORAM:-HON’BLE MR. JUSTICE R.K. MERATHIA

For the Petitioner : Mr.   Y.V. Giri, Sr. Advocate

Mr.   Sameer Saurav, Mr. Siddhartha Ranjan,

Mr.   Rakesh Ranjan, Mr. Amit Kumar,

Mr.   Vinay Prakash, Advocates

For Directorate

of Enforcement : Mr.

A.K. Das, Advocate

: Mr.

Chandrajit Mukherjee, Advocate

——–

C.AV.On 25.2.2011                   Delivered on 11/3/2011

 

7/ 11/3/2011

This application has been filed for grant of bail in connection with Complaint Case No. 1 of 2009, corresponding to Enforcement Case Information Report-E.C.I.R./02/PAT/09/AD registered under section 4 of the Prevention of Money Laundering Act, 2002 ( Money Laundering Act for short).

  1. The prayer for bail of the petitioner was earlier rejected by this Court on 24.05.2010 vide B.A. No. 823 of 2010, inter alia observing as follows;-

It appears that a complaint has been filed by the Assistant Director- II of Directorate of Enforcement under section 45 of the Prevention of Money Laundering Act, 2002 before the Special Judge Ranchi (under the Prevention of Money Laundering Act) against the petitioner Vikash Sinha. It further appears that information was filed under the scheduled offences of Prevention of Money Laundering Act, 2002, i.e. under sections 420, 423,424,409 and 120B of the Indian Penal Code as well as under sections 7,10 and 13 of the Prevention of Corruption Act and now for the offence under the Money Laundering Act punishable under section 4 of the Prevention of Money Laundering Act, 2002 against Sri Madhu Koda, Shri Kamlesh Singh, Shri Bhanu Pratap Shahi, Shri Bandhu Tirkey, Shri Binod Sinha, Shri Sunil Kumar Sinha, Shri Vikas Sinha, Shri Sanjay Chaudhary and Shri Dhananjay Chaudhary.

The investigation against this petitioner was complete and thereafter complaint was filed before the Special Judge, Ranchi (under the Prevention of Money Laundering Act), stating therein that the investigation of the case against other accused persons was going on. Accordingly, leave, as prayed, for filing further complaint against other accused persons was granted by the Special Judge, Ranchi ( under the Prevention of Money Laundering Act).

So far as the petitioner is concerned, the learned Special Judge Ranchi (under the Prevention of Money Laundering Act), on the basis of the complaint as well as the materials collected during the course of investigation, took cognizance against the petitioner under section 3 of the Money Laundering Act, 2002 punishable under section 4 of the said Act.

The allegations made in the complaint, in short, are that the accused persons in collusion and connivance with each other acquired huge properties. Some of the accused persons were even public servants in the State of Jharkhand. The accused persons accumulated moveable and immoveable properties and assets not only in India but in abroad also. Those properties were acquired otherwise and were not included in their disclosed assets. Their criminal acts indicated misappropriation of public money in the capacity of public servants. One of the co- accused Binod Sinha is the own brother of this petitioner Vikash Kumar Sinha. It is alleged that this petitioner jointly with his brother Binod Sinha acquired the properties and assets; the details of which have been given in the complaint.

The present case is a very sensitive case, in which high profile persons like Ex. Chief Minister of the State is one of the accused. The allegation is that he along with other accused persons in collusion and connivance with each other named in the report have acquired huge moveable and immoveable properties and assets not only in India but in abroad also. The investigation against other accused are still in progress and, therefore, in my view if the petitioner is released on bail, he may certainly try to influence the further investigation and he may try to tamper with the evidence or may try to destroy the evidence.

Considering the gravity of the offence and nature of the crime committed by the accused persons as well as for the reasons stated herein above, in my view the petitioner does not deserve bail. Accordingly, the prayer for bail of the petitioner is rejected and this application is dismissed…..”.

  1. Against the said order, petitioner moved before Hon’ble Supreme Court vide S.L.P. ( Cr) No. 5084 of 2010, which was dismissed on 17.09.2010, with the following order.

” Heard learned senior counsel appearing on behalf of the petitioner as well as learned ASG appearing on behalf of Respondent no. 2.

The Special Leave Petition is dismissed. However, liberty is given to the petitioner to renew his bail application after three months before the appropriate court.”

  1. Mr. Y.V. Giri, learned senior counsel appearing for the petitioner, submitted as follows. The main/C.B.I. case was based on Media Reports. In that case, there was no allegations against the petitioner. In the present case, i.e. E.C.I.R. Case No. 02/2009 registered under the Money Laundering Act, petitioner has been made an accused on the basis of his alleged confession/statements made before the Income tax authorities, about which the petitioner made statement later that such statements/confessions were recorded under coercion. The statements made before the Income tax authorities are relevant for the purpose of taking action under that Act. He relied on 1992 Cr. L.J. 2781__K.T.M.S. Mohammad Vs. Union of India. The concerned authorities have not taken any action against co-accused persons, against whom, there are similar allegations such as Mr. Bandhu Tirkey and Bhanu Pratap Sahi, who are sitting M.L.As. The rigorous of Section 45 of the Money Laundering Act is applicable to the offences under part A of the Schedule of the Act, whereas no part of the schedule is applicable to the petitioner on the basis of the offences alleged and therefore the provisions of Cr.P.C. with regard to bail will apply to the petitioner. In the charge-sheet submitted by the C.B.I., the alleged amount involved is about Rs.7 crores covering all the accused persons. Only because petitioner is brother of co-accused Binod Sinha, he has been made an accused in this case. The papers supplied to the petitioner are not readable. The trial is also not progressing. The petitioner was apprehended on 6.11.2009 and since then he is in jail for about 15 months.

In similar circumstances, one Kamlesh Singh was granted bail in Vigilance Case No. 9 of 2009, which is the basis of this case. Shri Laloo Prasad Yadav was also granted bail after he remained in jail for about 6 months vide (2002) 9 SCC 731. One Manoj Singh was also granted bail by this Court, against whom, there were allegations under Money Laundering Act involving 12 crores, on the ground that he has remained in jail for about six months.

The order of the High Court rejecting bail of the petitioner earlier has merged in the said order of the Supreme court, in which petitioner was given liberty to apply for bail after three months by order dated 17.9.2010. Petitioner will cooperate in trial. In these circumstances, petitioner should be enlarged on bail.

  1. Mr. A.K. Das, learned counsel appearing for Directorate of Enforcement, vehemently opposed the prayer for bail and submitted as follows. This case was instituted against several accused persons including Shri Madhu Kora, ex Chief Minister, Jharkhand and the petitioner mainly alleging inter alia that during the Chief Ministership of Shri Madhu Kora, he along with co-accused persons acquired huge illegal money ( proceeds of crime) through corrupt and illegal means and committed offences, which are covered under schedule of Money Laundering Act, in connivance with his close associates, including petitioner and others. The proceeds of crime so accumulated were invested not only in India but in several other countries so as to project the same as untainted property such as Dubai, Hongkong, Thailand, Singapur and Sweden.

The modus operandi adopted by the accused persons has been explained in detail by Shri S.K. Naredi ( Chartered Accountant), who is one of the important witnesses in this case- that some Chartered Accountant/Entry Operators maintained several files of Companies which only exist on paper for providing accommodation entries to the intending persons who want to induct their undisclosed income in the books of accounts of the Company as share capital/unsecured loan.

During investigation, it was found that the petitioner gave about Rs.45 crores to one Mr. B.N. Gupta, an employee of Mr. Naredi and the same was inducted in several such companies running on paper.

By such proceeds of crime, the capital of M/s Emmar Alloys Pvt. Ltd., a paper company of the petitioner was increased and 15% of the share of the Company was transferred in the name of the co-accused- Vijay Joshi, who admitted in his statement that he did not pay any consideration in lieu of acquisition of its share.

The proceeds of crime were rapidly allowed to change hands. About Rs.15 crores was spent on construction/acquisition of industry/ property only. The petitioner for the purpose of laundering the proceeds of crime has become Director in about 8 companies. He was examined under the provisions of Money Laundering Act and Income Tax Act. He admitted his guilt, which finds support from other materials available on record.

Other accused persons are in custody in this case. Petitioner is also deeply and actively involved in the offence. Further investigation is going on in India and in foreign countries. Petitioner cannot complain that the main/CBI case was based on media reports, as on investigation, such reports have been found correct to a great extent. Thus the Enforcement Department had reasonable belief about commission of offence. Some of the accused persons have not been arrested as investigation against them is going on. Referring to section 3 of the Money Laundering Act, he submitted that the petitioner is directly involved in the process and actively connected with the proceeds of crime for projecting it as untainted property. Petitioner may hamper and tamper with the evidences of this case, in which high profile person including ex Chief Minister are involved. He also referred to the order dated 26.10.2010, passed in S.L.P ( Crl) Nos. 6995-6999/2010 in the case of CBI, Hyderabad Vs. B. Ramaraju and others. He lastly submitted that petitioner is not entitled to bail, even on the basis of liberty given by Hon’ble Supreme Court, as he himself is delaying the trial.

  1. It will not be proper for this Court to express any opinion on the said submissions of the parties as it may prejudice them during trial. Prima facie, the submissions made on behalf of the petitioner are not acceptable. During investigation, Media reports have been found substantially correct. Petitioner confessed his guilt during investigation, which finds support from other materials available on record. The judgment of K.T.M.S. Mohammad ( supra) relied by the petitioner is of no help to him. It was rendered in altogether different context. The orders granting bail to other accused persons in other criminal cases in the facts and circumstances of those cases by different courts are of no help to the petitioner.

It is true that liberty was given by the Hon’ble Supreme Court to the petitioner to renew his bail application after three months but, from the order sheet of trial court, it appears that petitioner is trying to delay the trial on flimsy grounds. On the other hand, bail is prayed on the ground of the period of detention and the liberty given by Hon’ble Supreme Court.

Prima facie, it is a case of loot and laundering of huge public money in which the petitioner is also actively involved. After hearing the parties at length and considering the entire matter carefully, in my opinion, petitioner does not deserve bail in this case in view of the seriousness of the charges, the materials available in support thereof, and the provisions of Money Laundering Act, as noticed above. Accordingly, this bail application is rejected.

 

(R .K. Merathia, J) Rakesh/

The Hon’ble Supreme Court held that :-

supreme-court-l

“This is a matter that will, of course, be dealt with by the trial judge. However, what is important, as far as we are concerned, is that during the entire period of investigations which appear to have been spread over seven months, the appellant was not arrested by the investigating officer. Even when the appellant apprehended that he might be arrested after the charge sheet was filed against him, he was not arrested for a considerable period of time. When he approached the Allahabad High Court for quashing the FIR lodged against him, he was granted two months time to appear before the trial judge. All these facts are an indication that there was no apprehension that the appellant would abscond or would hamper the trial in any manner. That being the case, the trial judge, as well as the High Court ought to have judiciously exercised discretion and granted bail to the appellant. It is nobody’s case that the appellant is a shady character and there is nothing on record to indicate that the appellant had earlier been involved in any unacceptable activity, let alone any alleged illegal activity.

In our view, taking all these and other factors into consideration, it would be appropriate if the appellant is granted bail on conditions that may be reasonably fixed by the trial judge. We order accordingly

We should not be understood to have expressed any opinion on the allegations made against the appellant, both in the charge sheet as well as in the complaint case filed against him. “

—————————————————————————————————————————————–

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.227 /2018

(ARISING OUT OF S.L.P. (CRL.) NO. 151 OF 2018)

Dataram Singh …Appellant

Versus

State of Uttar Pradesh & Anr. …Respondents

J U D G M E N T

Madan B. Lokur, J.

  1. Leave granted.
  2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a Crl. Appeal No.227/2018 (@ S.L.P. (Crl.) No. 151 of 2018) Page 1 of 9 correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.
  3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.
  4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973.
  5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons. 1 1 (2017) 10 SCC
  6. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in NikeshTarachand Shah v. Union of India2 going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab3 in which it is observed that it was held way back in Nagendra v. King-Emperor4 that bail is not to be withheld as a punishment. Reference was also made to Emperor v. Hutchinson5 wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days.
  7. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory. 2 2017 (13) SCALE 609 3 (1980) 2 SCC 565 4 AIR 1924 Cal 476 5 AIR 1931 All 356
  8. We have been constrained to make these observations in the present appeal, in which the grant of bail has not been opposed by the State, but there is vehement opposition from the complainant.
  9. On 13th January, 2016 the complainant lodged a First Information Report (FIR) No.16 of 2016 at Police Station Sahjanawa, Gorakhpur, Uttar Pradesh, alleging that the appellant had cheated him of an amount exceeding Rs.37 lakhs and had therefore committed an offence punishable under Sections 419, 420, 406 and 506 of the Indian Penal Code. It was also alleged that the appellant had issued a cheque for Rs. 18 lakhs in favour of the complainant (returning a part of the amount of Rs. 37 lakhs) but had stopped payment of that cheque in violation of Section 138 of the Negotiable Instruments Act, 1881.
  10. Thereafter the complainant filed Complaint Case No. 206 of 2016 on or about 21st January, 2016 alleging the commission of an offence by the appellant under Section 138 of the Negotiable Instruments Act, 1881. Cognizance was taken and summons issued to the appellant by the concerned Magistrate in the complaint case.
  11. Much later, on or about 15th August, 2016, the investigating officer filed a charge sheet against the appellant being Case Crime No. 18 of 2017. It is not clear why the Case Crime was registered so late (it may be a typo), but be that as it may, it appears that during the the appellant was not arrested.
  12. Fearing arrest after the charge sheet was filed against him, the appellant moved the Allahabad High Court for quashing the FIR lodged against him. The record of the case reveals that on 7th February, 2017 the High Court declined to quash the FIR, but granted two months time to the appellant to appear before the trial judge. Presumably, it was directed that during this period, the appellant should not be arrested. On 11th April, 2017 the appellant approached the Allahabad High Court once again, this time for a further period of two weeks to enable him to appear before the trial judge. Time as prayed for, appears to have been granted and eventually on 24th April, 2017 the appellant appeared before the trial judge and was taken into judicial custody. The appellant has been in judicial custody ever since.
  13. A bail application moved by the appellant was rejected by the trial judge on 27th April, 2017 and another application for bail was rejected by the Allahabad High Court on 21st September, 2017 (impugned before us).
  14. On 23rd January, 2018 when the appeal was listed before us, the complainant was represented by learned counsel even though he was not a party to the proceedings. However, on the oral request of learned counsel for the appellant the complainant was impleaded as a party respondent. Notice was then issued to the State of Uttar Pradesh, notice was accepted by learned counsel for the complainant on his behalf. A request was made for filing a reply to the petition for special leave to appeal and two days time was granted for this purpose since the appellant was in judicial custody for a considerable period.
  15. Even though the State of Uttar Pradesh has been served in the appeal, no one has put in appearance on its behalf. As far as the complainant is concerned, no reply was filed by the time the matter was taken up for consideration on 29th January, 2018. Accordingly, the matter was adjourned to 2nd February, 2018 by which date also no reply was filed by the complainant. As mentioned above, no one has put in appearance on behalf of the State of Uttar Pradesh to oppose the grant of bail to the appellant.
  16. Learned counsel for the complainant vehemently contended that the appellant had duped him of a considerable amount of money and that looking to the seriousness of the allegations against him, this was not a case in which the appellant ought to be granted bail by this Court. Learned counsel supported the view taken by the trial judge as well as by the Allahabad High Court. He argued that given the conduct of the appellant in not only cheating the complainant and depriving him of a considerable sum of money but thereafter issuing a cheque for which payment was stopped made it an appropriate case for dismissal
  17. In our opinion, it is not necessary to go into the correctness or otherwise of the allegations made against the appellant. This is a matter that will, of course, be dealt with by the trial judge. However, what is important, as far as we are concerned, is that during the entire period of investigations which appear to have been spread over seven months, the appellant was not arrested by the investigating officer. Even when the appellant apprehended that he might be arrested after the charge sheet was filed against him, he was not arrested for a considerable period of time. When he approached the Allahabad High Court for quashing the FIR lodged against him, he was granted two months time to appear before the trial judge. All these facts are an indication that there was no apprehension that the appellant would abscond or would hamper the trial in any manner. That being the case, the trial judge, as well as the High Court ought to have judiciously exercised discretion and granted bail to the appellant. It is nobody’s case that the appellant is a shady character and there is nothing on record to indicate that the appellant had earlier been involved in any unacceptable activity, let alone any alleged illegal activity.
  18. In our view, taking all these and other factors into consideration, it would be appropriate if the appellant is granted bail on conditions that may be reasonably fixed by the trial judge. We order accordingly
  19. We should not be understood to have expressed any opinion on the allegations made against the appellant, both in the charge sheet as well as in the complaint case filed against him.
  20. The appeal is allowed. ……………………

…J (Madan B. Lokur) J New Delhi;

(Deepak Gupta) February 6, 2018

“”311. Power to summon material witness, or examine person present:-. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re- examine any person already examined; and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case.”

Careful perusal of aforesaid provision clearly suggests that court enjoys vast power to summon any person as a witness or recall and re-examine a witness provided same is essentially .

required for just decision of the case. Moreover, such exercise of power can be at any stage of inquiry, trial or proceedings under the Code, meaning thereby applicant can file an application at any time before conclusion of trial. Very object of Section 311 is to bring on record evidence not only from the point of view of accused and prosecution but also from the point of view of the orderly society.

Otherwise also, it is well established principle of criminal jurisprudence that discovery, vindication and establishment of truth are main purposes of underlying object of courts of justice. It is also well settled that wider the power, greater the responsibility upon court, which exercises such power and exercise of such power cannot be untrammeled and arbitrary, rather same must be guided by object of arriving at a just decision of case. Close scrutiny of aforesaid provision of law further suggests that Section 311 has two parts; first part reserves a right to the parties to move an appropriate application for re-examination of a witness at any stage; but definitely the second part is mandatory that casts a duty upon court to re-examine or recall or summon a witness at any stage if his/her evidence appears to be essential for just decision of case because, definitely the underlying object of aforesaid provision of law is to ensure that there is no failure of justice on account of mistake on the part of either of parties in bringing valuable piece of evidence or leaving an ambiguity in the statements of witnesses examined from either side.

Hon’ble Apex Court in Zahira Habibullah Sheikh (5) and another vs. State of Gujarat and others (2006)3 SCC 374 has held as under:-

“27. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is “at any stage of inquiry or trial or other proceeding under this Code”. It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.

  1. As indicated above, the Section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: it is, that the Court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court. Sections 60, 64 and 91 of the Indian Evidence Act, 1872 (in short, ‘Evidence Act’) are based on this rule. The Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the Court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The Court will often have to depend on intercepted allegations made by the parties, or on inconclusive .

inference from facts elicited in the evidence. In such cases, the Court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the Court may result in what is thought to be “filling of loopholes”. That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge.

  1. The object of the Section 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by Court gives evidence against the complainant he should be allowed an opportunity to cross- examine. The right to cross-examine a witness who is called by a Court arises not under the provision of Section 311, but under the Evidence Act which gives a party the right to cross- examine a witness who is not his own witness. Since a witness summoned by the Court could not be termed a witness of any particular party, the Court should give the right of cross- examination to the complainant. These aspects were highlighted in Jamat Raj Kewalji Govani v. State of Maharashtra, (AIR 1968 SC 178).
  2. Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The operative principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involves a delicate judicial balancing of competing interests in a criminal trial, the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences.

 Hon’ble Apex Court in Raja Ram Prasad Yadav vs. State of Bihar and another, (2013)14 SCC 461, has held that power under Section 311 Cr.P.C. to summon any person or witness or examine any person already examined can be exercised at any stage provided the same is required for just decision of the case. It may be profitable to take note of the following paras of the judgment:-

“14. A conspicuous reading of Section 311 Cr.P.C. would show that widest of the powers have been invested with the Courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression “any” has been used as a pre-fix to “court”, “inquiry”, “trial”, “other proceeding”, “person as a witness”, “person in attendance though not summoned as a witness”, and “person already examined”. By using the said expression “any” as a pre-fix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the Court was only in relation to such evidence that appears to the Court to be essential for the just decision of the case. Section 138 of the Evidence Act, prescribed the order of examination of a witness in the Court. Order of re-examination is also prescribed calling for such a witness so desired for such re-examination. Therefore, a reading of Section 311 Cr.P.C. and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 Cr.P.C. It is, therefore, imperative that the invocation of Section 311 Cr.P.C. and its application in a particular case can be ordered by the Court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted by us earlier. The power vested under the said provision is made available to any Court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and re-examination of any person already examined, the Court must necessarily consider and-ensure that such recall and re-examination of any person, appears in the view of the Court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. To put it differently, while such a widest power is invested with the Court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution.

In this context, we also wish to make a reference to certain decisions rendered by this Court on the interpretation of Section 311 Cr.P.C. where, this Court highlighted as to the basic principles which are to be borne in mind, while dealing with an application under Section 311 Cr.P.C.

In the decision reported in Jamatraj Kewalji Govani vs. State of Maharashtra – AIR 1968 SC 178, this Court held as under in paragraph 14:-

“14. It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it. In other words, where the court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case. If the court has acted without the requirements of a just decision, the action is open to criticism but if the court’s action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction.” (Emphasis added) 15.2 In the decision reported in Mohanlal Shamji Soni vs. Union of India and another – 1991 Suppl.(1) SCC 271, this Court again highlighted the importance of the power to be exercised under Section 311 Cr.P.C. as under in paragraph 10:-

“10….In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code

(Section 311 of the new Code) are enacted whereunder any court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or .

recall or re- examine any person in attendance though not summoned as a witness or recall and reexamine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.”

15.3 In the decision in Raj Deo Sharma (II) vs. State of Bihar – 1999 (7) SCC 604, the proposition has been reiterated as under in paragraph 9:-

“9. We may observe that the power of the court as envisaged in Section 311 of the Code of Criminal Procedure has not been curtailed by this Court. Neither in the decision of the five-Judge Bench in A.R. Antulay case nor in Kartar Singh case such power has been restricted for achieving speedy trial. In other words, even if the prosecution evidence is closed in compliance with the directions contained in the main judgment it is still open to the prosecution to invoke the powers of the court under Section 311 of the Code. We make it clear that if evidence of any witness appears to the court to be essential to the just decision of the case it is the duty of the court to summon and examine or recall and re-examine any such person.”

(Emphasis added) 15.4 In U.T. of Dadra and Nagar Haveli and Anr. vs. Fatehsinh Mohansinh Chauhan – 2006 (7) SCC 529, the decision has been further elucidated as under in paragraph 15:-

“15. A conspectus of authorities referred to above would show that the principle is well settled that the exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, this being the primary duty of a criminal court. Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order to enable the court to arrive at a just decision of the case cannot be dubbed as “filling in a lacuna in the prosecution case” unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused resulting in miscarriage of justice.” (Emphasis supplied) .

15.5 In Iddar & Ors. vs. Aabida & Anr. – AIR 2007 SC 3029, the object underlying under Section 311 Cr.P.C., has been stated as under in paragraph 9:-

“9…27. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is ‘at any stage of inquiry or trial or other proceeding under this Code’. It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.” (Emphasis added) 15.6 In P. Sanjeeva Rao vs. State of A.P.- AIR 2012 SC 2242, the scope of Section 311 Cr.P.C. has been highlighted by making reference to an earlier decision of this Court and also with particular reference to the case, which was dealt with in that decision in paragraphs 20 and 23, which are as under:-

“20. Grant of fairest opportunity to the accused to prove his innocence was the object of every fair trial, observed this Court in Hoffman Andreas v. Inspector of Customs, Amritsar (2000) 10 SCC

  1. The following passage is in this regard apposite:

“6. …In such circumstances, if the new counsel thought to have the material witnesses further examined, the Court could adopt latitude and a liberal view in the interest of justice, particularly when the court has unbridled powers in the .

matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible.”

  1. We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined-in-chief about an incident that is nearly seven years old. Delay takes a heavy toll on the human memory apart from breeding cynicism about the efficacy of the judicial system to decide cases within a reasonably foreseeable time period. To that extent the apprehension expressed by Mr. Rawal, that the prosecution may suffer prejudice on account of a belated recall, may not be wholly without any basis. Having said that, we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself.” (Emphasis in original) 15.7 In a recent decision of this Court in Sheikh Jumman vs. State of Maharashtra – (2012) 9 SCALE 18, the above referred to decisions were followed.

Again in an unreported decision rendered by this Court dated 08.05.2013 in Natasha Singh vs. CBI (State) – Criminal Appeal No.709 of 2013, where one of us was a party, various other decisions of this Court were referred to and the position has been stated as under in paragraphs 15 and 16:

The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as

any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the .

accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal, however, must be given to the other party.

The power conferred under Section 311 Cr.P.C. must, therefore, be invoked by the Court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection.

The very use of words such as ‘any Court’, ‘at any stage’, or ‘or any enquiry’, trial or other proceedings’, ‘any person’ and ‘any such person’ clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should, therefore, be whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.

Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person’s right to fair trial be jeopardized. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the

denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same. (Vide Talab Haji .

Hussain v. Madhukar Purshottam Mondkar & Anr., AIR 1958 SC 376; Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & Ors. AIR 2004 SC 3114; Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors., AIR 2006 SC 1367; Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.) (2007) 2 SCC 258; Vijay Kumar v. State of U.P. & Anr., (2011) 8 SCC 136; and Sudevanand v. State through C.B.I. (2012) 3 SCC 387.)”

 From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts:

  1. a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?
  2. b) The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated.
  3. c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and reexamine any such person.
  4. d) The exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.
  5. e) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.
  6. f) The wide discretionary power should be exercised judiciously and not arbitrarily.
  7. g) The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further .examination in order to arrive at a just decision of the case.
  8. h) The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision.
  9. i) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.
  10. j) Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.
  11. k) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
  12. m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.
  13. n) The power under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised,

with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be .ensured being a constitutional goal, as well as a human right.”

12.Hon’ble Apex Court in Mannan SK and others vs. State of West Bengal and another AIR 2014 SC 2950, wherein the Hon’ble Court has held as under:-

“10. The aim of every court is to discover truth. Section 311 of the Code is one of many such provisions of the Code which strengthen the arms of a court in its effort to ferret out the truth by procedure sanctioned by law. It is couched in very wide terms. It empowers the court at any stage of any inquiry, trial or other proceedings under the Code to summon any person as a witness or examine any person in attendance, though not summoned as witness or recall and re-examine already examined witness. The second part of the Section uses the word ‘shall’. It says that the court shall summon and examine or recall or re-examine any such person if his evidence appears to it to be essential to the just decision of the case. The words ‘essential to the just decision of the case’ are the key words. The court must form an opinion that for the just decision of the case recall or reexamination of the witness is necessary. Since the power is wide it’s exercise has to be done with circumspection. It is trite that wider the power greater is the responsibility on the courts which exercise it. The exercise of this power cannot be untrammeled and arbitrary but must be only guided by the object of arriving at a just decision of the case. It should not cause prejudice to the accused. It should not permit the prosecution to fill-up the lacuna. Whether recall of a witness is for filling-up of a lacuna or it is for just decision of a case depends on facts and circumstances of each case. In all cases it is likely to be argued that the prosecution is trying to fill-up a lacuna because the line of demarcation is thin. It is for the court to consider all the circumstances and decide whether the prayer for recall is genuine.”

  1. Aforesaid exposition of law clearly suggests that a fair trial is main object of criminal jurisprudence and it is duty of court to ensure such fairness is not hampered or threatened in any manner. It has been further held in the aforesaid judgments that fair trial entails interests of accused, victim and society and therefore, grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right. Hon’ble Apex Court has categorically held in the aforesaid judgment that adducing evidence in support of the defence is a valuable right and denial of such right would amount to denial of a fair trial.
  2. Hon’ble Apex Court in Raja Ram Prasad Yadav vs. State of Bihar and another, (2013)14 SCC 461, while culling out certain principles required to be borne in mind by the courts while considering applications under Section 311 has held that exercise of widest discretionary powers under Section 311 should ensure that judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts. Hon’ble Apex Court has further held that if evidence of any witness appears to be essential for the just decision of the case, it is the duty of the court to summon and examine or recall and re-examine any such person because very object of exercising power under Section 311 is to find out truth and render a just decision. Most importantly, in the judgment referred to herein above, Hon’ble Apex Court has held that court should bear in mind that no party in trial can be .foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.

 

Whether Criminal Appeal would be maintainable, at the instance of a victim, against order of acquittal passed by an Appellate Court in a Police Case ?

Whether Appeal is maintainable file by informant against the Acquittal ?

Whether Revision or Appeal is maintainable against the Acquittal on behalf of Complainant or Informant ?

Lets discuss the relevant Laws in this regard.

The answer to query would necessitate a closer look at Section 373, which is quoted hereinbelow:

“372. No appeal to lie unless otherwise provided- No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force;

Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court”.

It is relevant to state that prior to 2009 amendments, which the Code underwent, a victim did not have any right to file appeal against order of acquittal and the right to prefer appeal was provided only to State, District Magistrate and a Complainant of a Complaint Case. Section 372 of the Code, which is couched in negative connotation, prohibits filing of an appeal from any judgment or order of a Criminal Court save and except as provided for by the Code or by any other law for the time being in force. The Code had not provided any right of an appeal to a victim against acquittal.

It would appear from a bare perusal and plain reading of Section 372 of the Code that the right to appeal against acquittal, under the proviso thereto, has been provided only to the “victim” and not to the complainant or the informant simplicitor. The term „victim‟, for the first time, has been included by way of amendment to Section 372 in the year 2009. However, some Courts have expressed reservations regarding the right of a Complainant, even if he is a victim, to prefer an appeal against acquittal under the proviso to Section 372. The term “victim” has been defined under section 2(wa) as follows:

 

“2(wa)- “Victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir”.

Though Chapter XXIX under its heading „Appeals‟ consists of twenty two Sections, we would confine ourselves to, and deal primarily with, those provisions, which are relevant for the decision of the appeal. In this context, Sections 372, 374, 375, 376, 377, 378 Cr.P.C. are worth noticing. Some of the other provisions, under the Chapter, deal with format of appeal, its hearing, its scope and ambit. Prior to the amendments, which the Code underwent in the year 2009, Chapter XXIX provided for three categories of appeals.

(i) Appeal from orders requiring security — under Section 373 of Code

(ii) Appeal against conviction — under Section 374 of Code

(iii) Appeal against acquittal — under Section 378 of Code

(iv) Appeal against inadequacy of sentence — under Section 377 of Code

With the introduction of the proviso to Section 372 of the Code by the amendments carried out in the year 2009, appeal against “inadequacy of compensation” has also become statutory ground to prefer appeal by a victim.

It is worth noticing that though Section 374 provides appeal against convictions, all convictions are not appeallable. The Code bars filing of appeal against convictions in petty cases (See Section 376) and in the cases, wherein accused pleads guilty (See Section 375).

As the issue confronting us is as to whether an appeal would, at the instance of a victim, lie against order passed by Appellate Court acquitting an accused, it would be expedient to, first, deal with provisions relating to acquittal. Section 378, which is the only section under the Code providing therein right of appeal against acquittal, read, prior to the amendments in 2009, as under:

“378. Appeal in case of acquittal- (1) Save as otherwise provided in sub-section (2),and subject to the provisions of sub-section (3) and (5),-

(a )the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;

(b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court(not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision). (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code,( the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal-,

(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;

(b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court (not being an order under clause (a) or an order of acquittal passed by the Court of session in revision) (3) (No appeal to the High Court) under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court.

(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

(5) No application under sub-section (4) for the grant of Special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.

(6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub- section (2)”.

Appeal against Acquittal: (Section 378 of Code)

  1. It is noticeable that Section 378 of the Code, until before amendments in the year 2009, gave right to present an appeal against acquittal, subject to conditions mentioned therein, only to the three categories of persons, namely, (i) District Magistrate, (ii) State, and (iii) Complainant. Prior to the year 2009, no right of appeal was conferred on the informant or on the victim against order of acquittal.

Section 378 of the Code stands divided into six sub- sections. Sub-section (1) of Section 378 stands further divided into two parts, namely, Section 378(1)(a) and Section 378(1)(b). Section 378(1)(a) empowers a District Magistrate to direct Public Prosecutor to present an appeal to the Court of Sessions from order of acquittal passed by a Magistrate in a cognizable and non-bailable offence. Section 378(1)(b) empowers the State Government to direct Public Prosecutor to file an appeal to the High Court against (i) an order of acquittal passed either by original or appellate court other than High Court subject to the same being not an order passed under Clause (a) of Sub-Section (1) of Section 378.

Thus, a District Magistrate can direct Public Prosecutor to file appeal before Sessions Court against order of acquittal passed by a Magistrate only; whereas the State Government can, under Clause 1(a) of Section 378, direct filing of an appeal against original as well as appellate order of acquittal of any Court other than High Court not being an order of acquittal passed by a Court of Magistrate in respect of a cognizable and non-bailable offence.

In other words, the State can direct filing of an appeal against order of acquittal passed by a Magistrate in any case relating to cognizable and non-bailable offences. In view of specific embargo placed by Section 378(1)(b), the bar, upon the right of State to file an appeal against order of acquittal passed by a Magistrate, is restricted to cognizable and non-bailable offences. The logical inference follows that the State would have a right of appeal against an order of acquittal, even if the order of acquittal is passed by a Magistrate provided that the acquittal is in respect of a non-cognizable and bailable offence.

Sub-section (3) of Section 378 puts restrictions on the right of the State to file appeal inasmuch as Section 378 states that no appeal, on behalf of State, against acquittal would be entertained by a High Court, either under sub-section (1) or sub- section (2), without the leave of the Court. In other words, if leave is refused, appeal against acquittal by State Government would not be entertained.

Section 378(4) of the Code gives a right to complainant to prefer appeal against acquittal of accused provided that the High Court grants „special leave‟ to such appeal. It is apparent that the condition, laid down with respect to the right of complainant to file an appeal against acquittal, is more stringent than the limitations imposed on the State Government‟s right to file appeal against acquittal. While the State is required to seek leave to file appeal against acquittal, a Complainant has to seek grant of Special Leave to Appeal in order to maintain an appeal against acquittal under Section 378 (4) of the Code.

Sub- Section (5) of Section 378 sets up a time limit for filing of appeal, which is sixty days for a private complainant, but six months for a public servant. Section 378(6) states that a complainant will have no right to file an appeal if the application for grant of Special Leave to Appeal is refused by the High Court.

Appeal against Conviction and Sentence: (Section 374 and Section 377 of the Code.

Sections 374 of the Code grants right of appeal against Conviction and Section 377 deals with appeal against inadequacy of Sentence passed by a Magistrate or Sessions Court. We would, first, deal with Section 374, which gives a right of appeal against conviction. Section 374 is quoted hereinbelow for easy reference:

  1. Appeals from convictions.-(1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court.

(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years (has been passed against him or against any other person convicted at the same trial); may appeal to the High Court.

(3) Save as otherwise provided in sub-section (2), any person,-

(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class or of the second class, or

(b) sentenced under section 325, or

(c) in respect of whom an order has been made or a sentence has been passed under section 360 by any Magistrate, may appeal to the Court of Session.

  1. Section 374(1) relates to a right of appeal of a convicted person, on a trial held by a High Court in extra- ordinary original criminal jurisdiction, to the Supreme Court. Section 374(2) vests, a right to appeal to High Court, in a person convicted, on a trial held either by a Sessions Judge or Additional Sessions Judge or by any other Court in which the imprisonment for more than seven years has been passed either against him or against any person convicted in the same trial, whereas Sub-Section (3) of Section 374 provides that any person, convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of 1st Class or Second Class or sentence under Section 325 Cr.P.C. or in respect of whom an order has been made or a sentence has been passed under Section 360 by any Magistrate, may appeal to Court of Sessions.

 Section 375 prohibits filing of appeal in certain cases, when accused pleads guilty.

Section 376 bars filing of appeal in petty cases. For instance, where a Court of Sessions or a Metropolitan Magistrate passes a sentence of imprisonment for a term not exceeding three months or of fine not exceeding 200 rupees or of both, imprisonment or fine, no appeal is provided under the Code. In such cases, the informant or the complainant can take recourse to only the revisional power under Section 397 and 401 of the Code. This is only by way of an illustration. The other instances, wherein no appeal is provided in petty cases, are mentioned in Section 376 itself, which we quote hereinbelow:

“376. No appeal in petty cases.- Notwithstanding anything contained in section 374, there shall be no appeal by a convicted person in any of the following cases, namely:-

(a) where a High Court passes only a sentence of imprisonment for a term not exceeding six months or of fine not exceeding one thousand rupees, or of both such imprisonment and fine;

(b) where a Court of Session or a Metropolitan Magistrate passes only a sentence of imprisonment for a term not exceeding three months or of fine not exceeding two hundred rupees, or of both such imprisonment and fine;

(c) where a Magistrate of the first class passes only a sentence of fine not exceeding one hundred rupees; or

(d) where, in a case tried summarily, a Magistrate empowered to act under section 260 passes only a sentence of fine not exceeding two hundred rupees; Provided that an appeal may be brought against any such sentence if any other punishment is combined with it, but such sentence shall not be appelable merely on the ground-

(i) that the person convicted is ordered to furnish security to keep the peace; or

(ii) that a direction for imprisonment in default of payment of fine is included in the sentence; or

(iii) that more than one sentence of fine is passed in the case, if the total amount of fine imposed does not exceed the amount hereinbefore specified in respect of the case”.

We may, now, come to Section 372 inasmuch as it is proviso to Section 372, which gives right to a victim to prefer an appeal against any order passed by Court acquitting the accused and further provides that such appeal shall lie to the Court to which an appeal, ordinarily, lies against order of conviction of such Court.

Appeal on ground of Inadequacy of Sentence: (Section 377 of the Code)

The State Government, under Section 377 of the Code, can direct Public Prosecutor to present an appeal against sentence on ground of inadequacy to the Court of Sessions, if the sentence is passed by a Magistrate, and to the High Court if the sentence is passed by any other Court. We would not go into further details of this provision as it relates to inadequacy of sentence and not with respect to passing of order of acquittal.

It is worth noting that neither Section 378 nor Chapter XXIX or the Code, prior to insertion of the proviso to Section 372, in the year 2009, vested any right in the inforamnt or in the „victim‟ to prefer an appeal against acquittal. The informant could challenge the order of acquittal by way of revision under Sections 397 and 401 of the Code to the High Court; but such challenge would be restricted to judging of the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court.

It would be relevant to state herein that though an informant could have moved the High Court, under Sections 397 and 401 of the Code, against an order of acquittal, such right was not available to the victim if he was not the informant of the case. Sub-Section (3) of Section 401 restricts the High Court to exercise its revisional jurisdiction to convert a finding of acquittal into one of conviction. Further-more, a revisional Court can correct an error committed by a Court, while passing an order of acquittal, but it cannot, ordinarily, interfere with a finding of acquittal unless there has been apparent error of law or procedure or unless the finding is perverse or suffers from manifest illegality or has caused gross miscarriage of justice.

The Apex Court, in case of Johart vs Mangal Prasad, reported in 2008 SC 1165, observed that the jurisdiction of the High Court to entertain revision against acquittal is not barred, but is severally restricted. The High Court, in its revisional power, would not, ordinarily, interfere with the judgment of acquittal passed by the trial court unless there has been apparent error of law or procedure or where the public justice requires interference for correction of manifest illegality or prevention of gross miscarriage of justice. Reference can be made to cases of Ram briksh Singh vs Ambika Yadav, reported in (2004)7 SCC 665 and Bimal Singh vs Khuman Singh, reported in 1988 SCC Criminal 1574, too.

Moreover, the exercise of power of revision remains confined within parameters permitted by the provisions of Section 379 and Section 401 of the Code and is narrower in its ambit and scope in comparison to the power of appeal, which permits examination of both fact and law.

Now that we have noticed the relevant provisions with respect to right of appeal against the order of acquittal passed by original or appellate court other than the High Court, it would be equally apt to trace out the legislative and legal history qua right of victim emerging in criminal jurisprudence prior to coming into force of the present proviso to Section 372 of the Code in the year 2009. Our task has become considerably easier as Punjab and Haryana High Court, in the case of M/s Tata Steel Limited vs Atma Tube Products Limited & Ors, disposed of on 18th March, 2013 vide CRM-790-MA-2010 (O&M), reported in 2013(1) ILR 719(P&H), while examining a related issue, has, at length, dealt with the legislative and legal history. We would do no better than to incorporate some references from passages of Full Bench judgment for the legislative and legal history would be necessary in order to correctly appreciate the issue at hand.

Legislative History The British Government on the report of Margery Fry, set up a Programme, in the year 1964, providing for compensation to victim of crime depending upon gravity of offence, which was subsequently adopted by more and more countries. In the year 1985, United Nations adopted the declaration of basic principles of justice for victims of crime and abuse of power. On the basis of several pronouncements of the Supreme Court, the Law Commission, in the year 1996, in its 154th Report, made recommendations with respect to right of victim or person, followed by report of Justice Manimath Committee in the year 2003, which resulted in the amendment of 1973 Code in the year 2009, inserting proviso to Section 372 of the Code. The European Union (EU) also took big step forward in granting and protecting the rights of „victims‟ through various Covenants, particularly, the position of victim in the framework of Criminal Law and Procedure, Council of Europe Committee of Ministers to Member States, 1985. Towards this direction, the United States of America (USA) also made two enactments, namely, (i) The Victims of Crime Act, 1984, whereunder legal assistance is granted to the crime-victims; and (ii) The Victims‟ Rights and Restitution Act of 1990. The Australian Legislature also enacted South Australia Victims of Crime Act, 2001, and Canada was also not behind in making legislation on the subject known as Victims of Crime Act.

Chapter 15 of 154th Report of Law Commission of India advocated for providing compensatory justice to the victim through victim compensation scheme. The Malimath Committee Report 2003 also made recommendation for impleading victim or his legal representative, as a party, in every criminal procedure, where charge is framed for commission of offence punishable by 7 years imprisonment or more as a right. The Committee also recommended incorporation of provisions conferring right, on victim, to prefer appeal against any adverse order or to engage a lawyer of his choice.

Contribution of Courts in Evolution of Right of Victim:

The right of victim, or a person aggrieved, engaged the attention of the Court time and again. In the year 1955, a Division Bench of the Assam High Court, in case of N.C. Bose vs. Prabodh Dutt Gupta reported in ILR 1955 (Assam)116, emphasized the need of right of a private party or victim in case of wrongful acquittal of the case. The relevant extract of the Court‟s observations read as under:

“It seems to me that the person vitally interested in the issue of the prosecution or the trial is the person aggrieved who „initiates‟ the proceedings. He may be both civilly and criminally liable if, on account of any unfairness or partiality, the trial or the proceeding ends in wrongful acquittal or discharge of the accused. The Legislature therefore could not have intended to shut out such a person from coming to the High Court and claiming redress under Section 526 of the Code. The words should be construed to have the widest amplitude so long as the effect of the interpretation is not to open the door to frivolous applications at the instance of intermeddlers or officious persons having no direct interest in the prosueciton or trial”.

The Apex Court, in the case of Ratan Singh vs State of Punjab, reported in (1979) 4 SCC 719, observed that it is a weakness of our criminal jurisprudence that a victim of crime and the distress of the dependents of prisoner do not attract the attention of the law. Indeed, the victim reparation is still the vanishing point of our criminal law and such deficiency and discrepancy, in the system, must be rectified by the legislature sooner the better.

The Constitution Bench of Supreme Court, in the case of Sadhanathan vs Arunachalam and another, reported in (1980) 3 SCC 141, while examining filing of an appeal, under Article 136, held,”…………………….where the court is convinced that public interest justifies an appeal against the acquittal and State has refrained from petitioning from Special Leave which was promoted by private influence, want of bona fide and other extensions considerations, an appeal filed by private party be entertained”.

In the case of J.K. International vs State (Government of NCT of Delhi), reported in (2001) 3 SCC 462, the Apex Court held that a person, who is aggrieved by an offence involved in the case, is not altogether debarred from participating in trial or is not altogether wiped out from the scenario of trial.

The Apex Court, in the case of Ramakant Rai vs. Madan Rai and Others, reported in (2003) 12 SCC 395, recognized the right of a private person to file an appeal against order of acquittal passed by a High Court. In case of Masurddin Mushni vs Md. Siraj & Ors, reported in (2008) 8 SCC 434, the Supreme Court held that a First Information Report cannot be quashed by Court at the instance of accused without giving notice to informant.

Though, in Indian context, the Legislative sanction eluded the right of victim to appeal till 2009 amendment, such a right, on account of judicial pronouncements, was, in effect recognized, throughout the country, as an invaluable right of a victim. The reports of different Committees, 1985 United Nation declarations, 154th report of the Law Commission of India in the year 1996, Malimath Committee Report of 2003 and judicial pronouncement delineating the right of victim were the guiding force and motivating factor leading to statutory enactments of right of appeal of victim in the year 2009.

Chapter XXIX Cr.P.C. contained elaborate provisions with regard to the right of a convict, of the State and of a Complainant to prefer appeal against a judgment and order of the Court passed in a criminal proceeding, It did not, however, contain provisions giving any right to a victim to appeal. It was only by dint of amendment in the year 2009 that a proviso was inserted to Section 372 of the Code giving right of appeal to a victim against (a) order of acquittal, or (b) conviction for a lesser offence or (c) imposing inadequate compensation.

As noticed earlier, the term „victim‟ has been defined in Section 2(wa) to mean a person, who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged, and the expression „victim‟ includes his or her guardian or legal heir. If a „victim‟ himself or herself cannot sue on ground of minority or on account of death or any other inability, his guardian or legal heir, as the case may be, would, under the proviso to Section 372, step into his shoes and can exercise similar right as available to a „victim‟.

Coming back to 2009 amendment, the proviso to Section 372 states that a „victim‟ shall have right to prefer an appeal against any order passed by Court acquitting the accused or convicting for a lesser offence including inadequate compensation and that such an appeal shall lie to the Court to which an appeal, ordinarily, lies against the order of conviction of such a Court.

 The issue, which arises for consideration, is whether the proviso to Section 372 would also give right to a victim to prefer appeal against order of acquittal passed by an Appellate Court.

Apart from decision of Full Bench of Punjab and Haryana High Court in the case of M/s Tata Steel Limited (supra), references have been made to a Division Bench decision of this Court in the case of Parmeshwar Mandal vs State of Bihar, reported in 2014(1) PLJR 377 and to the case of Subhash Chandra vs State (Delhi Administration), reported in (2013)2 SCC 17.

We would, first, refer to the decision of Full Bench of Punjab and Haryana High Court rendered in the case of M/s Tata Steel Limited (supra), which was constituted in view of two separate references made by two different learned Single Judges of Punjab and Haryana High Court, both arising out of Complaint Cases. In one such case, a learned Single Judge, while considering the application seeking leave of the Court to prefer an appeal against the order of acquittal in a case under Sections 279, 337, 338 and 304-A IPC, noticed an apparent conflict between proviso to Section 372 and Section 378 Cr.PC and made the following reference:

“……as proviso to Section 372 of the Code unequivocally provides the remedy of appeal to a victim before a Court to which an appeal shall ordinarily lie against the order of conviction of such a Court while Section 378 of the Code refers to filing of an appeal to the Court of Session from an order of acquittal passed by a Magistrate only in respect of cognizable and non-bailable offences. There would thus be ambiguity in so far as the remedy of appeal provided to a victim in the cases where the offences are bailable and in which cases the aforesaid ambiguity amounts to giving with a left hand only to be taken away by the right hand”.

whether a „victim‟ under proviso to Section 372 of the Code would include „complainant‟ also

“Whether the word “victim” as mentioned in the proviso of Section 372 Cr.P.C. include complainant also for the purpose of availing the remedy of appeal as given to the victim by aforesaid proviso?

It is relevant to note that both the issues were framed by learned Single Judges, while considering applications seeking Special Leave to Appeal under Section 378 (4) of the Code. The last reference was in the context of an order of acquittal, passed by a Magistrate, in a case under Section 138 of the Negotiable Instruments Act, 1881.

The learned Full Bench, finding the matter of being one of paramount importance, formulated the following issues in view of discordance among different High Courts on one question or the other. The issues formulated are as follows:

(A) What is the true import and meaning of the expression „victim‟ as defined under Section 2 (wa) read with proviso to Section 372 Cr.P.C.?

(B) Whether „complainant‟ in a private complaint case, who is also the „victim‟ and the „victim‟ other than the „complainant‟ in such cases are entitled to present appeal agaisnt the order of acquittal under proviso to Section 372 or have to seek „special leave‟ to appeal from the High Court under Section 378(4) Cr.P.C.?

(C) Whether the „rights‟ of a victim under the amended Code are necessary and auxiliary to those perceived to be the exclusive domain of the „State‟?

(D) Whether presentation of appeal against acquittal is a „right‟ or an „obligation‟ of the „State‟ stemming from the Constitution?

(E) Where would the appeal of a „victim‟ preferred under proviso to Section 372 lie when the State also prefers appeal against that order of acquittal under Clause (a) of Section 378)1) Cr.P.C.?

(F) Whether proviso to Section 372 Cr.P.C. inserted w.e.f. December 31,2009, is prospective or retrospective in nature and whether a revision petition pending against an order of acquittal before the insertion of the said proviso, can be converted into an appeal and transferred to the Court of competent jurisdiction?

(G) What would be the period of limitation for a „victim‟ to prefer an appeal under proviso to Section 372 Cr.P.C.?

After detailed consideration of the provisions of the Code, the legislative history relating to enactment of the proviso to Section 372 and various pronouncements of different courts, the learned Full Bench of Punjab and Haryana High Court, in the case of M/s Tata Steel Limited (supra), answered the reference, issue wise, as follows:

Question (A)

(i) The expression „victim‟ as defined in Section 2(wa) includes all categories of his/her legal heirs for the purpose of engaging an advocate under Section 24(8) or to prefer an appeal under proviso to Section 372 of the Code.

(ii) However, legal heirs comprising only the wife, husband, parent and child of a deceased victim are entitled to payment of compensation under Section 357(1)(c) of the Code. Similarly, only those dependents of a deceased victim who have suffered loss or injury as a result of the crime and require rehabilitation, are eligible to seek compensation as per the Scheme formulated under section 357-A of the Code.

Question (B)

(iii) The “Complainant” in a complaint-case who is also a “victim” and the “victim” other than a “complainant” in such case, shall have remedy of appeal against acquittal under Section 378(4) only, except where he/she succeeds in establishing the guilt of an accused but is aggrieved at the conviction for a lesser offence or imposition of an inadequate compensation, for which he/she shall be entitled to avail the remedy of appeal under proviso to Section 372 of the Code.

(iv) The „victim‟, who is not the complainant in a private complaint-case, is not entitled to prefer appeal against acquittal under proviso to Section 372 and his/her right to appeal, if any, continues to be governed by the unamended provisions read with Section 378(4) of the Code.

(v) Those “victims” of complaint cases whose right to appeal have been recognized under proviso to Section 372, are not required to seek “leave” or “special Leave” to appeal from the High Court in the manner contemplated under Section 378(3) & (4) of the Code.

Questions (C) and (D)

(vi) The right conferred on a “victim” to present appeal under proviso to Section 372 is a substantive and independent right which is neither inferior to nor contingent up-on the filing of appeal by the State in that case. Resultantly, the condition of seeking “leave to appeal” or “Special leave to appeal” as contained in section 378(3) & (4) cannot be imposed for the maintainability of appeal by a “victim” under proviso to Section 372 of the Code.

Question (E)

(vii) In view of proviso to Section 372 an appeal preferred by a “victim” against the order of acquittal passed by a Magistrate in respect of a cognizable offence whether bailable or non-bailable shall lie to the Court of Session, the State‟s appeal under Section 378(1)(a) of the Code against that very order shall also be entertained and/or transferred to the same sessions Court.

Though, as many as seven issues were framed by the Punjab and Haryana High Court, in M/s Tata Steel Limited (supra), we would refer to these issues as and when found necessary in the context of the present case.

With respect to Issue No. „A‟ – As to what would be the true import and meaning of the expression „victim‟ as defined under Section 2(wa) read with proviso to Section 372 Cr.P.C. would not be of much relevance in the instant case inasmuch as there is no dispute that in the present case, the informant is the victim as well. According to the prosecution‟s case, it is the informant, who had sustained injuries and loss on account of act of commission of the accused, and, thus, is a „victim‟ within the meaning of Section 2(wa) of the Code.

With respect to Issue No. B- Whether „complainant‟, in a private complaint case, who is also the „victim‟ and the „victim‟ other than the „complainant‟, in such cases, are entitled to present appeal against order of acquittal under the proviso to Section 372 or have to seek „special leave‟ to appeal from the High Court under Section 378(4) of the Code?

The Full Bench of Punjab & Haryana High Court noticed, in M/s Tata Steel Limited (supra), that the High Courts are at variance in their views whether Section 2(wa) would cover „victim‟ in a Complaint Case as well. Whereas Rajasthan High Court, Allahabad High Court and Punjab and Haryana High Court held that Section 2(wa) would cover a complaint case, Madhya Pradesh High Court, Bombay High Court and Maharashtra High Court held that a complainant would not fall under proviso to Section 372 of the Code. The Uttrakhand High Court, in Special Leave to Appeal, in Criminal Appeal No.139 of 2011 (Bhagwan Singh vs State of Uttrakhand & anr) observed that appeal against order of acquittal, in a Complaint Case, which involves commission of a non-cognizable and bailable offence, would also fall in clause (b) of sub-Section (1) of Section 378 and, hence, the victim (who was complainant in a private complaint) could file, in High Court, appeal, under the provisio to Section 372, but after obtaining „ special leave to appeal‟ by the High Court.

The Full Bench of Punjab & Haryana High Court while deciding, in M/s Tata Steel Limited (supra), the issues, held, relying upon the decision, in Subhash Chandra vs State (Delhi Administration), reported in (2013) 2 SCC 17, that there is no distinction between a Complaint Case filed by a private person and a public servant and, as such, the appeal against acquittal, in every single complaint case, would lie under Section 378(4) after seeking Special Leave of the High Court. The Full Bench further observed that even if acquittal order is passed by a Magistrate, in a Complaint Case, filed by a public servant or State Government, no appeal shall lie to the Court of Sessions under section 378(1)(a) of the Code. The Full Bench further observed that a Complainant, whether he is a victim or not a victim, would have remedy of appeal against order of acquittal only under Section 378(4) after obtaining Special Leave to appeal.

The Full Bench, however, observed, in M/s Tata Steel Limited (supra), that if such a victim-cum-complainant succeeds in bringing the guilt of the accused home and establishes his or her victimization, but is aggrieved by conviction for a lesser offence or imposition of inadequate compensation, he or she shall be entitled to invoke the proviso to Section 372 of the Code. Such complainant, if he is proven to be a victim, would have remedy of appeal under the proviso to Section 372 of the Code.

In other words, the Punjab and Haryana High Court came to the conclusion, in M/s Tata Steel Limited (supra), that a complainant, even if he is „victim‟, would have no right of appeal against acquittal under proviso to Section 372 of the Code, but would be entitled to this right of appeal only if conviction is for a lesser offence or on the ground of inadequate compensation inasmuch as there is no other remedy to assail such conviction for a lesser offence or imposition of inadequate compensation. According to the Full Bench of Punjab and Haryana High Court, for a complainant, whether he is a victim or not, the remedy against acquittal would only be by way of Special Leave to Appeal under Section 378(4).

The Full Bench, in M/s Tata Steel Limited (supra), while coming to the said conclusion, reasoned that Legislature has imposed stringent condition on the maintainability of appeal against an order of acquittal in a complaint case, for, the acquittal by the trial court reinforces presumption of innocence in favour of the accused, who has earned acquittal in a case, where the complainant himself/herself was the prosecutor unlike the „victim‟ in a police-case, who does not have any say in the trial. Such being the legislative intendment, there cannot be any scope to doubt that the „complainant‟ of Section 378 (4), who fails to establish the complicity of an accused, can assail such acquittal only with the „special leave‟ of the High Court under Section 378(4). The fact that the Legislature has brought no changes, in this sub-Section, fortifies its policy to retain the same legal position as it existed before the Amendment Act, 2008. The Full Bench was of the view that when State had to seek leave before its appeal against acquittal is entertained, the Complainant would have no better right than the sovereign in preferring appeal with leave under the proviso.

With all humility, it is difficult for us to agree to the proposition of law laid down by the Full Bench of Punjab and Haryana High Court, in M/s Tata Steel Limited (supra), that a complainant, even if he/she is a „victim‟, would have no right of appeal under proviso to Section 372 of the Code against acquittal, for, adopting such a view would not be in consonance with mandate of law. The provision is clear and unambiguous and vests a right in a victim to prefer appeal against any order passed by Court:-

(a) acquitting accused or

(b) convicting accused for a lesser offence or

(c) imposition of inadequate compensation.

The proviso to Section 372 does not even remotely indicate that the expression „victim‟ has been used only in respect of a police case and would not include complainant of a complaint case. It is cardinal principle of construction that if the words of statute are plain and unambiguous, it should be given its literal meaning. Tindal, CJ, in Sussex Peerage‟s, case, observed that “if the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense”. Again, VISCOUNT SIMONDS, L.C., in 1940, Appeal Case 1014, which was approvingly quoted in A.I.R. 1987 Supreme Court 117, (Chandavarkar Sita Ratna Rao v. Ashalata S. Guram), observed that the golden rule is that the words of a statute must prima facie give their ordinary meaning and the aforesaid principle should not be departed unless it can be shown that the legal context in which the words are used requires different meaning. A bare perusal of definition of „victim‟ manifests that the term has not been used in a restrictive sense and would include both the complainant and the informant so long it satisfies qualifying condition in the proviso that he must have suffered loss or injury by act of omission or commission of the accused.

A victim, who has suffered injury, has an option either to file a complaint in the Court or to lodge a case with the police. Any narrower interpretation of the term „victim‟ to exclude one or the other would be contrary to the legislative intent behind insertion of the proviso, which makes no distinction between „Complainant‟ and „Informant‟. The aforesaid aspect can be tested from the following example. A person, who suffers brutal assault, would be a victim under the meaning of term „victim‟ defined in Section 2(wa). Can it be said that he would not be a victim if he files a complaint in court and would come within the definition of „victim‟ if lodges a police case. Such an interpretation would defeat the purpose of giving a right, though of limited nature, to a victim to appeal against acquitting accused or convicting accused for a lesser offence or imposition of inadequate compensation.

In M/s Tata Steel Limited (supra), the reliance by the Punjab and Haryana High Court, on the case of Subhash Chandra (supra) is misplaced as the case of Subhash Chandra (supra) is one, wherein the Supreme Court has held that there is no distinction in Complaint Case, where such complaint is filed by a private person and/or public servant and appeal against acquittal, in every single complaint case, shall lie under Section 378(4) after seeking special leave of the High Court. In M/s Tata Steel Limited (supra), the Full Bench of Punjab and Harayan High Court, later on, in paragraph 77 of its decision, noticed that the question of status of such a complaint as a „victim‟ or his consequential right to prefer an appeal, under proviso to Section 372 of the Code, was not subject matter of consideration before the Supreme Court in the case of Subhash Chandra (supra). Against order passed by a court acquitting an accused a Complainant, who is also a victim, would have a right to prefer an appeal to a court, where such an appeal lies against order of conviction of such court and not under Section 378(4). In case, the Complainant is not the victim, then, his remedy against order of acquittal would be under Section 378(4) only.

In our view, the proviso to Section 372 would be applicable to victims of both, Complaint case as well as Police Case alike. Thus, we are of the considered view that victims of both, Complaint Case and Police Case, would have equal right of appeal against order of acquittal as provided under the proviso to Section 372.

The proviso to Section 372 of the Code became a subject of consideration, in somewhat different context, in the case of Parmeshwar Mandal (supra). In Parmeshwar Mandal (supra), one of the main issues was whether the proviso to Section 372 is prospective or retrospective in nature. Yet another issue, Parmeshwar Mandal (supra), was as to who would constitute guardian or legal heir of a victim in terms of the meaning of the „victim‟ as given in Section 2(wa) and, in the light of the definition of „victim‟ as given in Section 2(wa), it was concluded that the victim would include his (i.e.,victim‟s) guardian and legal heirs.

The Division Bench, in Parmeshwar Mandal (supra), relying upon decisions rendered in the case of New India Insurance Company Limited vs Smt. Shanty Mishra,Adult, reported in 1976 SC 237; Ramesh Kumar Soni vs. State of Madhya Pradesh, reported in AIR 2013 SC 1896; Sudhir G.Angurs vs. M. Sanjeevs, reported in (2006)1 SCC 141, held that substantive part of law would operate prospectively unless made retrospective and the procedural part is presumed to be prospective within its defined limit. The learned Judges held that the first clause of the proviso to Section 372 creates a substantive right in the victim to prefer an appeal and the second clause identifies forum for preferring such appeal. Therefore, the right of victim to prefer an appeal become available to all cases, where orders were passed, in a Criminal Court, acquitting accused and the date of judgment of a criminal Court has to be necessarily treated as relevant date for applying the test of maintainability of appeal by the victim irrespective of date of the occurrence, institution of cases, cognizance or commitment. The Division Bench held that in case the occurrence took place before the date of amendment, but judgment of acquittal is passed after the date of amendment, the victim would have right to appeal. We agree with the view of Division Bench, in Subhash Chandra (supra), that if the judgment of acquittal is passed after the date of amendment, the victim would have a right to appeal and accord our respectful decent to the view of Punjab and Haryana High Court, in M/s Tata Steel Limited (supra), held to the contrary.

As discussed above, a victim, in a police case — be he an informant or otherwise (in the present case, informant himself is victim)― has a right to prefer an appeal against any order passed by the court acquitting accused or convicting for a lesser offence or imposing inadequate compensation and such appeal shall lie to the court to which an appeal, ordinarily, lies against the order of conviction of such court.

Under the Code of Criminal Procedure, 1973, the right to file an appeal, in a police case, against sentence or against acquittal, was given to the District Magistrate of a District or to the State Government or to the Central Government through their respective Public Prosecutors under Sections 377 and 378 of the Code of Criminal Procedure.

As noticed in the preceding paragraphs, Section 378(1)

(a) gives District Magistrate a right to direct Public Prosecutor to prefer an appeal, in the Court of Sessions, against order of acquittal passed by a Magistrate in respect of cognizable and non-bailable offence; whereas Section 378(1)(b) gives the right to the State Government to direct Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than High Court. Similarly, sub-section (2) of Section 378 gives the right to the Central Government to direct Public Prosecutor to present an appeal against order of acquittal in a case, wherein offence has been investigated by the Delhi Special Police Establishment or by any other agency empowered to make investigation into an offence in any Central Act other than this Code.

The provisions of Section 378 clearly go to show that only the State Government and the Central Government have been given the right to file an appeal, in the High Court, from an appellate order of acquittal.

It is, thus, evident that right to prefer an appeal, in High Court, has been given to State Government as well as to Central Government from an appellate order of an acquittal passed by any court (other than High Court).

Section 378 makes it abundantly clear that the right to file appeal against the order of acquittal by the Appellate Court has been given to sovereign, i.e., the State Government or the Central Government, as the case may be, and such a right has not been given even to the District Magistrate, who is prosecutor of district.

Chapter XXIX of the Code of Criminal Procedure talks about an order passed “by the Court” and it means the original court, because the High Court, ordinarily, exercises the power either under appellate or revisional jurisdiction.

The proviso to Section 372, which gives right to a victim, for the first time, to file an appeal against order of acquittal, or order of conviction of a lesser offence or order imposing inadequate compensation, speaks of any order passed by the court. It further provides that against those orders, the appeal shall lie to the court to which an appeal, ordinarily, lies against the order of conviction of such court.

The proviso to Section 372 clearly goes to show that right to file an appeal by the victim, whether he is informant or not, is against the order of trial court only and not against the order of appellate court and when a victim has not been given by the Code the right to prefer appeal against an order of acquittal passed by an appellate court, this right cannot be given to him by enlarging the scope of the proviso to Section 372 of the Code.

From Section 378, it is evident that right to file an appeal against order of acquittal passed by Appellate Court is given to sovereign only, i.e., the State Government and the Central Government, and not to any other person, i.e., not even to the District Magistrate, and, in that view of the matter also, a victim cannot be given a better right.

Further-more, Section 372 bars filing of an appeal unless it is expressly provided in the Code or any other law. The proviso to Section 372 confers right on the victim to prefer an appeal, against „any order passed by the court‟ as indicated hereinbefore, to the Court, wherein an appeal, ordinarily, lies against order of conviction of such court. It is relevant to state that against order of conviction by appellate court, no provision of appeal is provided to High Court. On this score, too, a victim would not have any right of appeal against order of acquittal passed by an Appellate Court.

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (DB) No.146 of 2014

======================================================

Jainath Prasad son of Late Ram Briksh Prasad, resident of Village- Baishakhwa, P.S. Keshwaria, District East Champaran …. Appellant Versus

 

  1. The State of Bihar

 

  1. Brahma Prasad son of Late Mukhlal Prasad, resident of Village Baishkhwa, P.S. Kesharia, District East Champaran, Motihari …. Respondents

59611229

“A twenty one year young boy has knocked at the portals of this Court for bail. He is involved in cybercrime. The manner in which the crime has been committed shows the devilish master mindedness, cool thinking, tricks adopted, organised effort and timely execution of plan of the offenders. The intelligence and advanced type of knowledge on cyber seems to have been utilised in a wrong way. Sitting somewhere far from the victim and without having any direct physical access to her, the cybercriminal has caused unimaginable harm to her with touches of his fingers on the computer and stolen more than what an ordinary criminal could have done with gun. The victim of the organised crime appears to be an innocent lady fell into the trap of evil design. With the temptation of getting foreign gifts, she acted like a brainless toy in the hands of the criminals till she realised one day that she had been deceived on a mistaken impression.

The law was set into motion with the presentation of a first information report by Sukanti Mohanty at Cyber Crime Police Station of C.I.D., C.B., Cuttack on the accusation that she had become a victim of organized cybercrime and had paid a sum of Rs.17,03,390/- to different persons through their bank accounts which were provided to her through e-mail/sms /whatsapp. She alleged against one person identifying himself as Frank Young on facebook had sent her a friend’s request which she accepted. The accused informed the informant that he had sent her some gifts which were held up in Delhi from where she should collect the gifts. The informant was asked through a number of calls and e-mails for money on various pretexts i.e. remittance, foreign exchange, transfer etc. The phone calls and sms were received from different numbers and the people who identified themselves as Frank, Marc, security personnel, R.B.I. officials and Airport officials etc. advised and convinced the informant to deposit money in different bank accounts provided by them. The money was paid in four different bank accounts of four different persons by the informant totalling to Rs.17,03,390/-.”

 

 

IN THE HIGH COURT OF ORISSA, CUTTACK

 

BLAPL NO. 5963 Of 2017

 

An application under section 439 of the Code of Criminal

Procedure, 1973 in connection with CID C.B. Cyber Crime P.S.

Case No.12 of 2016 corresponding to C.T. Case No.3811 of 2017

pending in the Court of learned S.D.J.M., Bhubaneswar.

—————————–

Obinna Nicodemus Enweka @ Obina Icodemus …….. Petitioner

-Versus-

State of Orissa                     ……..                             Opp.                            For Petitioner                    Mr. Goutam Mishra   For Opp. party                   –             Mr. JanmejayaKatikia                                                         Addl. Govt. Advocate

—————————–

 

P R E S E N T:

 

THE HONOURABLE MR. JUSTICE S.K. SAHOO

 

Date of Argument: 14.11.2017

Date of order: 22.11.2017

  1. K. SAHOO, J.

A twenty one year young boy has knocked at the portals of this Court for bail. He is involved in cybercrime. The manner in which the crime has been committed shows the devilish master mindedness, cool thinking, tricks adopted, organised effort and timely execution of plan of the offenders. The intelligence and advanced type of knowledge on cyber seems to have been utilised in a wrong way. Sitting somewhere far from the victim and without having any direct physical access to her, the cybercriminal has caused unimaginable harm to her with touches of his fingers on the computer and stolen more than what an ordinary criminal could have done with gun. The victim of the organised crime appears to be an innocent lady fell into the trap of evil design. With the temptation of getting foreign gifts, she acted like a brainless toy in the hands of the criminals till she realised one day that she had been deceived on a mistaken impression.

The law was set into motion with the presentation of a first information report by Sukanti Mohanty at Cyber Crime Police Station of C.I.D., C.B., Cuttack on the accusation that she had become a victim of organized cybercrime and had paid a sum of Rs.17,03,390/- to different persons through their bank accounts which were provided to her through e-mail/sms /whatsapp. She alleged against one person identifying himself as Frank Young on facebook had sent her a friend’s request which she accepted. The accused informed the informant that he had sent her some gifts which were held up in Delhi from where she should collect the gifts. The informant was asked through a number of calls and e-mails for money on various pretexts i.e. remittance, foreign exchange, transfer etc. The phone calls and sms were received from different numbers and the people who identified themselves as Frank, Marc, security personnel, R.B.I. officials and Airport officials etc. advised and convinced the informant to deposit money in different bank accounts provided by them. The money was paid in four different bank accounts of four different persons by the informant totalling to Rs.17,03,390/-.

On such first information report, C.I.D.C.B. Cyber Crime P.S. Case No.12 dated 26.08.2016 was registered under sections 419/420/468/471 of the Indian Penal Code and section 66-C/66-D of the Information Technology Act, 2000.

During course of investigation, the informant and other witnesses were examined. The documents relating to deposit of money, accounts statement of the informant’s bank account as well as some other relevant documents were seized. Requisitions under section 91 of Cr.P.C. were sent to the concerned banks to provide A/c opening forms details along with up to date account statement and other necessary information for identification of the account holders. Immediate correspondence were also made with concerned mobile service providers to ascertain the subscriber information as well as call details to ascertain the identity and location of the cell phone numbers which were used in making contact with the informant. While conducting investigating at New Delhi, it was ascertained that large sum of money was deposited in the bank accounts of fraudsters and the same was immediately being transferred to many other bank accounts in smaller amounts by internet banking and soon after that the smaller amounts were withdrawn immediately through ATMs in no time leaving very little or no balance in the beneficiary accounts. The concerned branch managers were requested to debit freeze the beneficiary accounts. On 08.10.2016, the Inspector of Cyber Crime, Goa intimated the investigating officer by e-mail that two Nigerian nationals i.e. the petitioner and another have been arrested on 03.10.2016 by Goa police and during interrogation, it was ascertained that they are involved in a crime in Orissa by defrauding the informant by using two mobile numbers. During verification of the mobile numbers and call records received from the mobile service providers, it appeared that the two mobile numbers are common in Odisha Cyber Crime case and Goa Cyber Crime case. The investigating officer received CDR and CAF in respect of some of the mobile numbers and analyzed them. From the CDR of the mobile phones, it became evident that the fraudster had induced the informant by making telephone call and sms and the two mobile numbers which were used in two IMEIs were seized by the Cybercrime officials of Delhi and Goa. It was ascertained during course of investigation that the petitioner and another co-accused had become friends with the informant through e-mail/sms/whatsapp. Finding sufficient prima facie evidence against the petitioner, charge sheet was submitted on 27.02.2017 against the petitioner and another co-accused under sections 419/420/468/471 of the Indian Penal Code and sections 66-C/66-D of the Information Technology Act keeping the further investigation open under section 173(8)of Cr.P.C.

The petitioner moved an application for bail before the learned Addl. Sessions Judge, Bhubaneswar in Bail Application No.201/904 of 2017 which was rejected vide order dated 02.08.2017.

Mr. Gautam Mishra, learned counsel appearing for the petitioner contended that the petitioner has been unnecessarily victimized and he is in no way involved in the alleged commission of the offences and he has already remained in custody for a substantial period and has undergone tremendous hardship and mental agony and charge sheet has already been submitted. It is further stated by the learned counsel for the petitioner that the petitioner has been granted bail in the Goa case by the J.M.F.C., Mapusa, Goa and he has filed the bail order copy. He further submitted that there is no chance of tampering with the evidence and therefore, the bail application may be favourably considered.

Mr. Janmejaya Katikia, learned Additional Government Advocate on the other hand contended that there is not only sufficient evidence against the petitioner relating to his involvement in the crime but also the further investigation of the case is under progress and once the petitioner is released on bail, there is likelihood of tampering with the evidence. It is further contended that the petitioner is involved in committing similar offences in other States also and therefore, the bail application should be rejected. Learned counsel filed the case records as well as some important documents in a sealed envelope.

Adverting to the contentions raised by the learned counsels for the respective parties and after going through the case records, it appears that there are sufficient prima facie evidence to show that due to inducement of the petitioner, the informant deposited a sum of Rs.17,03,390/- in four accounts, three belonged to S.B.I. and one belonged to Central Bank of India. From the said accounts, the petitioner had transferred money through online account transfer to beneficiary accounts and the accused persons have withdrawn money through ATM leaving a very negligible amount in the account. The maximum withdrawal have been effected using ATM cards and the Branch Managers of the concerned banks such as State Bank of Travancore, State Bank of Mysore, UCO Bank, Union Bank and State Bank of Hyderabad etc. stated that the account holders never visit the branch and have withdrawn money only through ATM. It is evident that the informant has deposited money in four accounts of different persons which are fake due to inducement by the petitioner through online transfer from her accounts and soon after her deposit, the money was transferred through internet banking in smaller amounts to several beneficiary accounts which are in different banks in New Delhi. It further appears that the petitioner visited India in a fake Visa on health ground.

Considering the nature and gravity of the accusation, the nature of supporting evidence, the manner in which the informant has been cheated with a huge amount, the severity of punishment in case of conviction, the reasonable apprehension of tampering with the evidence particularly when the further investigation is under progress and the criminal proclivity of the petitioner, I am not inclined to accept the prayer for bail of the petitioner.

Accordingly, the BLAPL application stands rejected.

………………………………… S.K. Sahoo, J.

Orissa High Court, Cuttack

 

                   “Rape is one of the most barbaric and heinous crimes not only against the victim of the rape but also against the society as a whole. The cases of rape, gang rape and digital rape are on increase and perpetrators of this inhuman and brutal crime are worse than even the beasts and deserve to be dealt with a heavy hand. The entire country is seriously debating this issue and there are proposals coming forth that death penalty should be the answer to deal with the accused involved in such heinous crime. Having said this, I am also constrained to observe here that no one should be allowed to trivialise the gravity of offence by misusing the same as a weapon for vengeance or vendetta.”

            “There is an old Jewish saying “if you are close when you should be distant, you will be distant when you should be close”. It is for both man and woman to restrain themselves and not to indulge in intimate activities prior to the marriage. Undoubtedly it is responsibility, moral & ethical, both, on the part of men not to exploit any woman by extending false promise or through devious acts to force or induce the girl for sexual relationship. But ultimately, it is woman herself who is the protector of her own body. Promise to marry may or may not culminate into marriage. It is the prime responsibility of the woman in the relationship or even otherwise to protect her honour, dignity and modesty. A woman should not throw herself to a man and indulge in promiscuity, becoming source of hilarity. It is for her to maintain her purity, chastity and virtues”

Rape is a crime against one’s mind, psyche and reputation. Rape leaves a permanent scar on the life of the victim and it becomes horrendous for the victim of rape to lead a dignified and well respected life in the society. It is very unfortunate that there is a high increase in the rape instances and ravenous maniacs are not even sparing the girls of a very tender age. Some of the recent rape cases have been so horrifying that the entire nation protestedto condemn these barbaric acts and raised a voice to curb the said menace by inflicting more severe punishment. The Government also promptly appointed Justice J.S. Verma Committee to review laws on crimes against women, which recommended certain dramatic changes in the Criminal law relating to offences against women.

Undoubtedly there is a manifold increase in the crime concerning rapes, but all the rape cases which are filed have their own individual story and factual matrix. While most of the cases may be genuine, wherein the girl is a victim of this horrifying crime, or has been forced, blackmailed, threatened to enter into physical relationship with a male on the false pretext of marriage with the sole intent to physically exploit the girl but there may be cases where both persons out of their own will and choice, develop a physical relationship. Many of the cases are being reported by those women who have consensual physical relationship with a man but when the relationship breaks due to one or the other reason, the women use the law as a weapon for vengeance and personal vendetta to extort money and sometimes even to force the boy to get married to her. Out of anger and frustration, they tend to convert such consensual sex as an incident of rape, defeating the very purpose of the provision. There is a clear demarcation between rape and consensual sex and in cases where such controversies are involved, the court must very cautiously examine the intentions of both the individuals involved and to check if even the girl on the other hand is genuine or had malafide motives. Cases like these not only make mockery of the sacred institution of marriage but also inflate the statistics of rape cases which further deprecates our own society.

 

IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                                BAIL APPLN. 311/2013

ROHIT CHAUHAN

….. Petitioner

Through Mr. B.S. Rana with Mr.T   Mr.VijenderBhardwaj and

Mr. Satyam Sisodiya, Advs.

Versus

 

STATE NCT OF DELHI

….. Respondent

Through Mr. Navin Sharma, APP for the State.

Mr.MasroorAlam Khan, Adv. for the

complainant.

CORAM:

HON’BLE MR. JUSTICE KAILASH GAMBHIR

ORDER  :  22.05.2013

  1. By this application filed under Section 438 Cr.P.C. the petitioner seeks grant of anticipatory bail.
  2. The petitioner herein is accused of committing the offence under Sections 376/506/328 IPC in FIR No. 39/2013 registered with PS Rani Bagh. As per the prosecuterix, Ms.Rupali Thakur it is alleged that she had an affair with the petitioner, RohitChauhan for the last 3 years and during this period the petitioner had physical intimacy with her on the promise that he would marry her.
  3. As per the complainant, who is present in court, the petitioner took the Bail Appn. 311/2013 Page 1 complainant to his house at Rishhi Nagar, Rani Baghon 14.2.2010 on the pretext of introducing her to his mother, but since there was no one present in his house, he forcibly had physical relationship with her. It is also the case of the prosecutrix, that when she tried to shout, then the petitioner daunted her that he would kill her and defame her and at the same time he asked her not to worry as he loved her and would marry her butif in case she discloses the said relationship to anyone then the petitioner would harm himself physically. It is also the case of the prosecutrix that the petitioner also gave certain pills to her so that she would not conceive. It is further alleged by the prosecutrix that the petitioner also threatened to kill her family members and to show her obscene videos to her parents and upload the same on ‘YouTube’, if she dared to refuse to maintain physical relations with him. It is also the case of the prosecuterix, that on 9.7.2012, the petitioner administered some drug in her cold drink, which she drank and again was forced to have physical relations with him. It is also the case of the prosecuterix that on 13.7.2012, she filed a complaint at Police Station, Shalimar Bagh which was later transferred to Police Station Rani Bagh, where the petitioner and his family members were called by the police and they gave assurance that they will arrange the marriage of the petitioner with the complainant only if the complainant withdraws the said complaint. As per the complainant, the marriage was solemnized at AryaSamajMandir, Bail Appn. 311/2013 Page 2 HaritVihar, Burari, Delhi on 10th August, 2012, where the family of the petitioner i.e. his mother Kiran, brother Kitty, cousin brother Vishnu Yadav, petitioner’s MassiPoonam, petitioner’s other Massa and Massi were all present. It is also the case of the prosecutrix that after the solemnisation of the said marriage, the petitioner did not take her to his house even for a day and rather after two days of marriage, the petitioner and his family members took the prosecutrix to AryaSamajMandir, beat her and forcibly took her signatures on one paper for dissolving the said marriage. It is also the case of the prosecuterix that after the marriage, the petitioner and his family members visited her locality several times and abused her besides creating nuisance outside her house. It is also the case of the prosecuterix that her sister was also threatened whenever she used to go to her school. It is also the case of the prosecuterix that on 3.11.2012, she again made a complaint against the petitioner and his family members in Police Station Shalimar Bagh, and when they were called by the police, they had demanded for one flat and Rs. 20 lakhs if the prosecutrix wanted to live with them. Thereafter, a complaint was filed by the prosecutrix with the Crime Against Women Cell, Maurya Enclave, so as to pursue her complaint dated 13th July, 2012.

 

  1. Advancing the arguments on behalf of the petitioner, Mr. B.S. Rana, Advocate, submits that the petitioner was abducted from his residence on 9.8.2012 at about 9 p.m. and he was severely beaten by the police in the Bail Appn. 311/2013 Page 3 police station and was taken to AryaSamajMandir, HaritVihar, Burari, Delhi, where he was forced to solemnize the aforesaid marriage with the complainant. To support his arguments counsel for the petitioner placed reliance on some of the photographs placed on record wherein the petitioner can be seen in a track suit and some police officials taking photographs of the marriage from his mobile. It is also the case of the petitioner that the complainant extorted a sum of Rs. 2.50 lakhs form the petitioner and his family for getting the said marriage dissolvedand vide settlement deed dated 10th August, 2012, which was duly signed by both the parties and their relatives, the said marriage was declared null and void. It is also the case of the petitioner that on 22nd January, 2013, the mother of the petitioner lodged a complaint with the Commissioner of Police to bring correct facts to the knowledge of the police, as to how the petitioner was forced to marry the prosecutrix and how he was blackmailed to pay the said amount of Rs. 2.50 lakhs to the prosecutrix. It is also the case of the petitioner that when the mother of the petitioner lodged a complaint, it is only thereafter that the respondent got the said case registered against the petitioner on 30th January, 2013. Counsel for the petitioner further submits that the petitioner and the complainant were known to each other for the last three years and during that period, both of them startedloving each other and the physical intimacy shared by both of them was consensual and therefore, there is no question of the Bail Appn. 311/2013 Page 4 petitioner ever raping the complainant. Counsel also submits that the petitioner had already filed a civil suit to seek decree of declaration to declare the said marriage as null and void and the said suit is pending disposal before the civil Court. Counsel furtherstates that after solemnization of the said marriage the complainant lodged a complaint against the petitioner after a gap of almost 3 years.
  2. Counsel for the petitioner further submits that the complainant never challenged the said deed of cancellation of marriage and the said complaint was lodged by the prosecutrix only with a view to extort more money from the petitioner and his family. During the course of the arguments, counsel for the petitioner has also placed on record certain photographs indicating as to how advance the complainant is. Counsel further submits that the photographs make it apparent that the prosecutrix can be seen dressed inappropriately, having beer while sitting next to some boy. It could also be seen that she is lighting cigarette for him.
  3. Based on the above submissions, counsel for the petitioner submits that the petitioner has been falsely implicated by the respondent in the present case.
  4. The present bail application of the petitioner has been strongly opposed by Mr Navin Sharmalearned APP for the State duly assisted by the counsel representing the complainant. Mr Navin Sharma submits that the petitioner sexually exploited the prosecutrix on the assurance of marrying Bail Appn. 311/2013 Page 5 her although he never intended to do so. Counsel also submits that there are specific allegations levelled by the complainant against the petitioner, forcing the complainant to have sexual relations with her and on many occasions he even threatened to kill her and defame her. On one occasion he even mixed some drug in her cold drink and thereafter, shared physical intimacy with her. He also blackmailed the complainant that he would upload her pictures/ videos on the ‘YouTube’ if she refused to maintain sexual relations with him. Counsel further submits that the petitioner was never forced to marry the complainant but the police officials were deployed by the area SHO in civil uniform to ensure that no untoward incident takes place at the time of solemnization of the marriage. Counsel also submits that the petitioner has forged and fabricated the deed of divorce dated 11th August, 2012 as on enquiry it was found that the said divorce deed was never notarized by SaritaGarg, Advocate. Counsel also submits that as per the complaint dated 22.1.2013 filed by the mother of the petitioner to the SHO Shalimar Bagh, the prosecutrix left for Jaipur immediately on the following day of the said marriage and she had returned to Delhi after 3 days. Counsel for the State further submits that if as per the mother of the petitioner she was at Jaipur on the following day of her marriage then how could she have signed a divorce deed and got the same attested from the notary.
  5. I have heard learned counsel for the parties at considerable length and Bail Appn. 311/2013 Page 6 given my anxious consideration to the arguments advanced by them. Before I proceed to decide the aforesaid bail application, it would be pertinent to discuss some recent judgments in the said context.

 

  1. The judgment of the Apex Court, in the case of Deepak Gulati V. State of Haryana,Criminal Appeal No. 2322/2010, the Hon’ble Supreme Court while dealing with an appeal filed by the appellant convicted for the offence punishable under Sections 365 and 376 of the Indian Penal Code, 1806, held as under:-

“14. The undisputed facts of the case are as under: I. The prosecutrix was 19 years of age at the time of the said incident.

  1. She had inclination towards the appellant, and had willingly gone with him to Kurukshetra to get married. III. The appellant had been giving her assurance of the fact that he would get married to her.
  2. The physical relationship between the parties had clearly developed with the consent of the prosecutrix, as there was neither a case of any resistance, nor had she raised any complaint anywhere at any time despite the fact that she had been living with the appellant for several days, and had travelled with him from one place to another. V. Even after leaving the hostel of Kurukshetra University, she agreed and proceeded to go with the appellant to Ambala, to get married to him there.
  3. 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 a case 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.

Bail Appn. 311/2013 Page 7

  1. Hence, it is evident that there must be adequate evidence to show that at the relevant time, i.e. at initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The “failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term misconception of fact, the fact must have an immediate relevance.” Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her.
  2. The instant case is factually very similar to the case of Uday (Supra), wherein the following facts were found to exist:
  3. The prosecutrix was 19 years of age and had adequate intelligence and maturity to understand the significance and morality associated with the act she was consenting to. II. She was conscious of the fact that her marriage may not take place owing to various considerations, including the caste factor.

III. It was difficult to impute to the accused, knowledge of the fact that the prosecutrix had consented as a consequence of a misconception of fact that had arisen from his promise to marry her.

  1. There was no evidence to prove conclusively, that the appellant had never intended to marry the prosecutrix.
  2. To conclude, the prosecutrix had left her home voluntarily, of her own free will to get married to the appellant. She was 19 years of age at the relevant time and was, hence, capable of understanding the complications and issues surrounding her marriage to the appellant. According to the version of events provided by her, the prosecutrix had called the appellant on a number given to her by him, to ask him why he had not met her at the place that had been pre-

decided by them. She also waited for him for a long time, and when he finally arrived she went with him to the Karnalake where they indulged in sexual intercourse. She did not raise any objection at this stage and made no complaints to anyone. Thereafter, she also went to Kurukshetra with the appellant, where she lived with his relatives. Here to, the prosecutrix voluntarily became intimate with the appellant. She then, for some reason, went to live in the hostel at Kurukshetra University illegally, Bail Appn. 311/2013 Page 8 and once again came into contact with the appellant at the Birla Mandir. Thereafter, she even proceeded with the appellant to the old bus-stand in Kurukshetra, to leave for Ambala so that the two of them could get married in court at Ambala. However, here they were apprehended by the police.

 

  1. If the prosecutrix was in fact going to Ambala to marry the appellant, as stands fully established from the evidence on record, we fail to understand on what basis the allegation of “false promise of marriage” has been raised by the prosecutrix. We also fail to comprehend the circumstances in which a charge of deceit/rape can be leveled against the appellant, in light of the afore-mentioned fact situation.”\

10.While dealing with the anticipatory bail application of an accused of committing the same offence, this Court in the case of Mohd. Iqbal V. State , Bail Application no. 2145 of 2009, held as under:-

“There is an old Jewish saying “if you are close when you should be distant, you will be distant when you should be close”. It is for both man and woman to restrain themselves and not to indulge in intimate activities prior to the marriage. Undoubtedly it is responsibility, moral & ethical, both, on the part of men not to exploit any woman by extending false promise or through devious acts to force or induce the girl for sexual relationship. But ultimately, it is woman herself who is the protector of her own body. Promise to marry may or may not culminate into marriage. It is the prime responsibility of the woman in the relationship or even otherwise to protect her honour, dignity and modesty. A woman should not throw herself to a man and indulge in promiscuity, becoming source of hilarity. It is for her to maintain her purity, chastity and virtues”

  1. In another bail application No. 1760 of 2012 dealing with the same offence, this Court held as under:-

“Rape is one of the most barbaric and heinous crimes not only against the victim of the rape but also against the society as a whole. The cases of rape, gang rape and digital rape are on increase and perpetrators of this inhuman and brutal crime are worse than even the beasts and deserve to be dealt with a heavy hand. The entire country is seriously debating this issue and there are proposals coming forth Bail Appn. 311/2013 Page 9 that death penalty should be the answer to deal with the accused involved in such heinous crime. Having said this, I am also constrained to observe here that no one should be allowed to trivialise the gravity of offence by misusing the same as a weapon for vengeance or vendetta.”

12.It is appalling to see that rape rears its ugly facade almost every day. As per the National Crime Record Bureau, in India, a rape is committed every 20 minutes. Rape being the fastest growing crime is undoubtedly one of the most deplorable, belligerent and atrociousact committed against the dignity of a woman. Rape has been held to be even more serious than murderwhich not only destroysthe woman physically but also shatters her innerself by destroying her each living moment emotionally and psychologically.

  1. Rape is a crime against one’s mind, psyche and reputation. Rape leaves a permanent scar on the life of the victim and it becomes horrendous for the victim of rape to lead a dignified and well respected life in the society. It is very unfortunate that there is a high increase in the rape instances and ravenous maniacs are not even sparing the girls of a very tender age. Some of the recent rape cases have been so horrifying that the entire nation protestedto condemn these barbaric acts and raised a voice to curb the said menace by inflicting more severe punishment. The Government also promptly appointed Justice J.S. Verma Committee to review laws on crimes against women, which recommended certain dramatic changes in the Criminal law relating to offences against women.

14.Undoubtedly there is a manifold increase in the crime concerning rapes, but all the rape cases which are filed have their own individual story and factual matrix. While most of the cases may be genuine, wherein the girl is a victim of this horrifying crime, or has been forced, blackmailed, threatened to enter into physical relationship with a male on the false pretext of marriage with the sole intent to physically exploit the girl but there may be cases where both persons out of their own will and choice, develop a physical relationship. Many of the cases are being reported by those women who have consensual physical relationship with a man but when the relationship breaks due to one or the other reason, the women use the law as a weapon for vengeance and personal vendetta to extort money and sometimes even to force the boy to get married to her. Out of anger and frustration, they tend to convert such consensual sex as an incident of rape, defeating the very purpose of the provision. There is a clear demarcation between rape and consensual sex and in cases where such controversies are involved, the court must very cautiously examine the intentions of both the individuals involved and to check if even the girl on the other hand is genuine or had malafide motives. Cases like these not only make mockery of the sacred institution of marriage but also inflate the statistics of rape cases which further deprecates our own society.

  1. In the facts of the present case, here is a complainant who appears to be quite an ultra-modern lady with an open outlook towards life, enjoying alcohol in the company of menwhich is evident from the photographs placed on record, which have not been denied by the prosecutrix present in court.She does not appear to be such a vulnerable lady that she would not raise her voice on being immensely exploited over such a long period of time. As per the prosecutrix, she had a physical relationship with the petitioner for the last more than 2 ½ years and it is not just a single act of sharing physical intimacy but the same continued for almost a long period of three years. There lies a possibility that the petitioner might have then refused to marry the prosecutrix and this refusal on the part of the petitioner gave a serious jolt to the prosecutrix who then with the help of police, solemnized the marriage with him, in the wee hours of the night when petitioner was in his casual apparels(track suit). It is only on 30.01.2013, that the complainant raised her voicefor the first time and made allegations of rape against the petitioner. It is an admitted case that the said marriage ultimately did not consummate as the complainant was never brought to the matrimonial home and the petitioner has already filed a civil suit to seek decree of declaration for declaring the said marriage as null and void.

16.The court can also not be oblivious of the fact that the marriage between the complainant and the petitioner had indeed taken place and both the parties have not disputed this fact. Therefore, this circumstance by itself entitles the petitioner to the grant of the anticipatory bail. We are not commenting here upon the circumstances which led to the solemnisation of the said marriage as there is a civil suit already pending before the court.It would be worthwhile to mention that being the victim of such a reprehensible crime, one should lodge a complaint immediately, or within a reasonable period of time unless there are sufficient reasons to explain the long delay. Delay in lodging an FIR, in such like cases can ultimately diminish the chances of conviction, as due to such delay, the medical evidence and the other circumstantial evidence may rarely be available to support the case of prosecution.

17.It is a settled position of law, that every case is to be dealt based on its individual factual matrix and no set principle or straight jacket formula can be applied specifically while dealing with bail matters where only prima facie view can be taken to appreciate the facts in a given case.

  1. Considering the facts of the present case, in light of the aforesaid discussion and the material on record, I am inclined to grant anticipatory bail to the petitioner. Accordingly in the event of arrest, the petitioner shall be released on bail subject to furnishing of his personal bonds in the Bail Appn. 311/2013 Page 13 sum of Rs. 50,000 with one surety of the like amount to the satisfaction of the arresting officer.
  2. It is directed that the petitioner and his family members shall not visit the prosecutrix or try to intimidate her.
  3. The present anticipatory bail application stands disposed of. It is ordered accordingly.

Dasti.

KAILASH GAMBHIR, J

MAY     22, 2013