NECESSARY TO PROVE TWIN CONDITIONS OF ‘DEMAND’ AND ACCEPTANCE’ OF BRIBE IN A CASE UNDER PC ACT

The appellant was an employee of the Delhi Electricity Supply Undertaking, working on the post of Inspector at the time relevant.

An FIR was filed against him and one Rajinder Kumar, another employee of DESU, wherein it was alleged that the appellant had demanded Rs 4000 for installation of electricity connection in complainant’s factory.

On the basis of FIR, the CBI formed a raiding party and the whole procedure was followed. On the scene, the appellant asked the complainant to hand over the money to Rajinder Kumar. As soon as Rajinder Kumar accepted the money, the raiding party came in and the accused were caught. The trial court convicted the appellant as a fore stated. However, Rajinder Kumar was acquitted from all the charges.

It is pertinent to note that both the accused were acquitted of the charge under Section 120-B IPC (criminal conspiracy). The appellant filed an appeal to the High Court which was dismissed.

The Supreme Court, sitting in appeal, perused the record and noted that the case of the prosecution was that the appellant conspired with Rajinder Kumar to accept illegal gratification from the complainant.

The Court was of the opinion that once Rajinder Kumar and the appellant stood acquitted of the charge of conspiracy and further, Rajinder Kumar was acquitted of the charges under PC Act, the charged against the appellant must also fall on the ground.

Furthermore, in order to prove its case against the appellant, it was necessary for the prosecution to prove twin requirements of demand and acceptance of the bribe amount by the appellant. It was the case of the prosecution that the money was accepted by Rajinder Kumar and since the accused were acquitted of the charge of conspiracy, it could not be said that Rajinder Kumar accepted the money as illegal gratification for it on behalf of the appellant.

In such circumstances, there was no evidence to prove that the appellant accepted the money from the complainant. Resultantly, the Court held that the judgment impugned requires interference which was accordingly set aside. The appeal was. allowed and the appellant was acquitted of all the charges. [Dashrath Singh Chauhan v. CBI, 2018 SCC OnLine SC 1841, decided on 09-10-2018]

LEGAL ASSISTANCE TO THE VICTIMS OF RAPE

In case of Delhi Domestic Working Women'S Association ... vs Union Of India And Others on 19 October, 1994 1995 SCC (1) 14 the Hon’ble Supreme Court has issued following guidelines, to be implemented by the States. 

Some of the Guidelines viz. victim compensation scheme is in place now and detail procedure has been evolved by National Legal Service Authority but the remaining  guidelines are still relevant which are supposed to be implemented by the police:-

(1)The complainants of sexual assault cases should be provided with legal representation. It is important to have someone who is well acquainted with the criminal justice system.

The role of the victim's advocate would not only be to explain to the victim the nature of the proceedings, to prepare her for the case and to assist her in the police station and in court but to provide her with guidance as to how she might obtain help of a different nature from other agencies, for example, mind counseling or medical assistance.

It is important to secure continuity of assistance by ensuring that the same person who looked after the complainant's interests in the police station represent her till the end of the case.

(2) Legal assistance will have to be provided at the police station since the victim of sexual assault might very well be in a distressed state upon arrival at the police station, the guidance and support of a lawyer at this stage and whilst she was being questioned would be of great assistance to her.

(3) The police should be under a duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed.

(4) A list of advocates willing to act in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.

(5) The advocate shall be appointed by the court, upon application by the police at the earliest convenient moment, but in order to ensure that victims were questioned without undue delay, advocates would be authorised to act at the police station before leave of the court was sought or obtained.

(6)In all rape trials anonymity of the victim must be maintained, as far as necessary.

(7)It is necessary, having regard to the Directive Principles contained under Article 38(1)of the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss. Some, for example, are too traumatised to continue in employment.

(8) Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape.

COMMITTEE TO EXAMINE CASES RESULTING INTO ACQUITTAL - INVESTIGATING OFFICER TO FACE DEPARTMENTAL ACTION IF ACQUIITAL IS BECAUSE OF LAPSES ON THE PART OF INVESTIGATING OFFICER.........

Hon’ble Supreme Court  in case of STATE OF GUJRAT VS KISHAN BHAI 2014(5) SCC 108 while dealing with a case of murder of  a minor girl and allowing the appeal resulting into acquittal of the accused because of the lapses of investigating officer issued following directions to the State Governments:-

We accordingly direct, that on the completion of the investigation in a criminal case, the prosecuting agency should apply its independent mind, and require all shortcomings to be rectified, if necessary by requiring further investigation.

It should also be ensured, that the evidence gathered during investigation is truly and faithfully utilized, by confirming that all relevant witnesses and materials for proving the charges are conscientiously presented during the trial of a case.

This would achieve two purposes. Only persons against whom there is sufficient evidence, will have to suffer the rigors of criminal prosecution. By following the above procedure, in most criminal prosecutions, the concerned agencies will be able to successfully establish the guilt of the accused.

Every acquittal should be understood as a failure of the justice delivery system, in serving the cause of justice. Likewise, every acquittal should ordinarily lead to the inference, that an innocent person was wrongfully prosecuted.

It is therefore, essential that every State should put in place a procedural mechanism, which would ensure that the cause of justice is served, which would simultaneously ensure the safeguard of interest of those who are innocent.

In furtherance of the above purpose  it is considered essential to direct the Home Department of every State, to examine all orders of acquittal and to record reasons for the failure of each prosecution case.

A standing committee of senior officers of the police and prosecution departments, should be vested with aforesaid responsibility. The consideration at the hands of the above committee, should be utilized for crystalizing mistakes committed during investigation, and/or prosecution, or both.

The Home Department of every State Government will incorporate in its existing training programmes for junior investigation/prosecution officials course- content drawn from the above consideration. The same should also constitute course-content of refresher training programmes, for senior investigating/prosecuting officials.

The above responsibility for preparing training programmes for officials, should be vested in the same committee of senior officers referred to above. Judgments like the one in hand (depicting more than 10 glaring lapses in the investigation/prosecution of the case), and similar other judgments, may also be added to the training programmes.

The course content will be reviewed by the above committee annually, on the basis of fresh inputs, including emerging scientific tools of investigation, judgments of Courts,  and on the basis of experiences gained by the standing committee while examining failures, in unsuccessful prosecution of cases.

We further direct, that the above training programme be put in place within 6 months. This would ensure that those persons who handle sensitive matters concerning investigation/prosecution are fully trained to handle the same. Thereupon, if any lapses are committed by them, they would not be able to feign innocence, when they are made liable to suffer departmental action, for their lapses.

On the culmination of a criminal case in acquittal, the concerned investigating/prosecuting official(s) responsible for such acquittal must necessarily be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy.

Each erring officer must suffer the consequences of his lapse, by appropriate departmental action, whenever called for. Taking into consideration the seriousness of the matter, the concerned official may be withdrawn from investigative responsibilities, permanently or temporarily, depending purely on his culpability.

We also feel compelled to require the adoption of some indispensable measures, which may reduce the malady suffered by parties on both sides of criminal litigation.

Accordingly we direct, the Home Department of every State Government, to formulate a procedure for taking action against all erring investigating/prosecuting officials/officers.

All such erring officials/officers identified, as responsible for failure of a prosecution case, on account of sheer negligence or because of culpable lapses, must suffer departmental action. The above mechanism formulated would infuse seriousness in the performance of investigating and prosecuting duties, and would ensure that investigation and prosecution are purposeful and decisive.

The instant direction shall also be given effect to within 6 months.

A copy of the instant judgment shall be transmitted by the Registry of this Court, to the Home Secretaries of all State Governments and Union Territories, within one week. All the concerned Home Secretaries, shall ensure compliance of the directions recorded above. The records of consideration, in compliance with the above direction,shall be maintained.

We hope and trust the Home Department of the State of Gujarat, will identify the erring officers in the instant case, and will take appropriate departmental action against them, as may be considered appropriate, in accordance with law.

APPLICABILITY OF SECTION 160 Cr.P.C TO THE ACCUSED

Section 160 of Cr.P.C. is the power of police to summon the witnesses. Often it is seen that section is also used to summon the accused person under the belief that it is applicable to accused also.

The controversy is set at rest by the Supreme Court in case of STATE REPRESENTED BY INSPECTOR OF POLICE AND OTHERS VS NMT JOY EMACULATE the Hon’ble Supreme Court observed “ in our opinion the High court has committed  serious error in giving such direction contrary to the statutory provisions of section 160 Cr.P.C which is applicable only to the witnesses, not to the accused”

“In fact, the learned Judge has erred in expanding the scope of Section 160 Cr.P.C. to the accused as well, which might lead to hardship to an investigating agency.”

(CRIMINAL APPEAL NO. 575-576 OF 2004 DATED 5/5/2004 SUPREME COURT)

THE ACCUSED CANNOT WAIVE HIS RIGHT OF BEING SEARCHED BY GAZETTED OFFICER OR MAGISTRATE UNDER SECTION 50 NDPS ACT

It appears that hon’ble Supreme Court has re-written the law on section 50 N D P S Act. Supreme Court in case of Arif khan vs State of Uttrakhand Criminal Appeal no. 273 of 2007 decided on April 17 2018 observed that accused cannot waive his right of section 50 N D PS  Act. 

The search by or in the presence of  gazetted officer or magistrate is must to comply with the provisions of  N D P S Act.

Earlier the police use to inform the accused that he has a right of being searched in the presence of gazette officer or magistrate  and then after use to search the accused when he declines to get searched in the presence of gazetted officer or magistrate.

Now as per the interpretation given by Supreme Court it is mandatory for the police to search the accused in presence of gazetted officer or magistrate or a member of the arresting party must be a gazetted officer to comply with the provisions of N D P S Act.

The above judgment is going to impact a large number of cases since in most of the cases the accused waives his right of being searched in the presence of gazetted officer or magistrate and permitting the police to take search.

A WOMAN’S BODY IS NOT A MAN’S PLAYTHING ...........................

The Hon’ble Supreme Court in case of State of U.P. vs Naushad  (2013) 16 SCC 651 while dealing with the factual matrix of the case where accused had physical sexual relations with the victim after obtaining the consent on false promise of marriage observed:-

“A WOMAN’S BODY IS NOT A MAN’S PLAYTHING AND HE CANNOT TAKE ADVANTAGE OF IT IN ORDER TO SATISFY HIS LUST AND DESIRES BY FOOLING A WOMAN INTO CONSENTING TO SEXUAL INTERCOURSE SIMPLY BECAUSE HE WANTS TO INDULGE IN IT. THE ACCUSED IN THIS CASE HAS COMMITTED THE VILE ACT OF RAPE AND DESERVES TO BE SUITABLY PUNISHED FOR IT.”

CONSTITUTIONAL VALIDITY OF SECTION 303 I.P.C.

Section 303 I P C provides the punishment for  the offence of “ murder by life convict” with mandatory death sentence . 

A constitutional bench of five judges of Supreme Court viz. Chandrachud, Y.V. (Cj), Fazalali, Syed Murtaza, Tulzapurkar, V.D., Reddy, O. Chinnappa (J), Varadarajan, A. (J) in case of Mithu vs State Of Punjab Etc. 1983 AIR 473 observed :-

 “it is impossible to uphold Sec. 303 as valid. Sec. 303 excludes judicial discretion. The scales of justice are removed from the hands of the Judge so soon as he pronounces the accused guilty of the offence. So final, so irrevocable and so irrestitutable is the sentence of death that no law which provides for it without involvement of the judicial mind can be said to be fair, just and reasonable. Such a law must necessarily be stigmatised as arbitrary and oppressive. Sec. 303 is such a law and it must go the way of all bad laws. I agree with my Lord Chief Justice that Sec. 303,Indian Penal Code must be struck down as unconstitutional."

So section 303 IPC remains in the statute book but not applicable, the cases of 303 I.P.C. will be covered in section 302 IPC.