Detenues who have completed more than three years in Assam Detention Centers should Be released: Supreme Court

Bench of Chief Justice Rajan Gogoi and Justice Sanjiv Khanna was hearing the matter of foreigners kept in detention centers in Assam in the case of Supreme Court Legal Services Committee v. Union of India & Anr.. Court laid down the following conditions for the release of detenues who have completed more than three years of detention:

Execution of a bond with two sureties of Rs 1,00,000 (Rupees one lakh only) each of Indian citizens;

Specification of a verifiable address of stay after release;

Biometric of his/her iris (if possible) and all ten fingerprints and photos shall be captured and stored in a secured database before release from the detention centres.

He or she shall report once every week to the Police Station specified by the Foreigners Tribunal;

He or she shall notify any change of his or her address to the specified Police Station on the same day, and ·

A quarterly report to be submitted by the Superintendent of Police (Border) to the Foreigners Tribunal regarding appearance of such released declared foreigner to concerned Police Station and in case of violation of condition, the DFN will be apprehended and produced before Foreigners Tribunal.

Court has further asked the State of Assam to place on record a detailed scheme, in consultation with the Gauhati High Court (on the administrative side), with regard to the constitution of Foreigners Tribunals including appointment of Members, staff etc.

It has also asked for record of such details as soon as possible while giving the State liberty to make a mention of the matter before the Vacation Bench. Matter is to be listed in the month of July unless mentioned otherwise by the counsel for the State.

Whether statement recorded under section 161 Cr.P.C. can be treated as dying declaration?

The Supreme court observed that statement recorded by the I.O. can be treated as dying declaration under the provisions of section 32(1) of the Evidence Act and is not hit by section 162 Cr.P.C.

( Pradeep Bisoi @ Ranjit Bisoi vs State of Odisha, Crl Appeal  1192/2018 decided on 10-10-2018)

Power of Court to monitor investigation

The magistrate on the application given by informant or suomoto pass an order for monitoring of  investigation being conducted by the police officer. Such a power is vested in the Magistrate by section 156(3) of the Cr.P.C. where a Magistrate can pass order for registering  FIR and conducting the investigation.

In case of Sakiri Vasu vs State of U.P. and others 2008(2) SCC 409, Supreme Court observed that “ the magistrate has very wide powers under section 156(3) to direct registration of FIR and to ensure a proper investigation and for this purpose he can monitor the investigation to see that investigation is done properly though he himself cannot investigate.

Whether monitoring of investigation by the court will amount to interfering in the investigation?

In case of Union of India  Vs Prakash Hinduja and anothers 2003 (6) SCC 195 , Supreme Court held that Magistrate has no power to interfere in the investigation conducted by the police. But in case of Sakir Vasu Supra the Supreme Court held that ratio of this decision would only apply when  proper investigation is being done by the police and if magistrate is satisfied that investigation is not being done properly he can certainly direct the Officer-in-Charge of Police Station to conduct the investigation properly and can further monitor the same.

Magistrate Cannot Suo Motu Direct Further Investigation After Discharging The Accused: SC

The Supreme Court has observed that a Magistrate has no jurisdiction to suo moto pass an order for further investigation/reinvestigation after he discharges the accused. The power to order further investigation which may be available to the Magistrate at the pre­cognizance stage may not be available to the Magistrate at the post-cognizance stage, more particularly, when the accused is discharged by him.

The bench comprising Justice L. Nageswara Rao and Justice MR Shah noted that when a report is forwarded by the police to the Magistrate under Section 173(2)(i) of the CrPC, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceedings, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. But all this is done at the pre--cognizance stage, the bench observed.

"If the Magistrate was not satisfied with the investigation carried out by the investigating officer and the report submitted by the investigating officer under Section 173(2) (i) of the CrPC, as observed by this Court in catena of decisions and as observed hereinabove, it was always open/permissible for the Magistrate to direct the investigating agency for further investigation and may postpone even the framing of the charge and/or taking any final decision on the report at that stage. However, once the learned Magistrate, on the basis of the report and the materials placed along with the report, discharges the accused, we are afraid that thereafter the Magistrate can suo moto order the further investigation by the investigating agency. Once the order of discharge is passed, thereafter the Magistrate has no jurisdiction to suo moto direct the investigating officer for further investigation and submit the report"

In the instant case, the investigating authority did not apply for further investigation and that the learned Magistrate suo moto passed an order for further investigation and directed the investigating officer to further investigate and submit the report, which is impermissible under the law. Such a course of action is beyond the jurisdictional competence of the Magistrate. Therefore, that part of the order passed by the learned Magistrate ordering further investigation after he discharges the accused, cannot be sustained and the same deserves to be quashed and set aside. 

(Bikash Ranjan Rout Versus State through the Secretary (Home), Government of NCT of Delhi, CRIMINAL APPEAL NO. 687 OF 2019 decided on 16/4/19 Supreme Court.)

Magistrate cannot direct police to file charge sheet on receipt of closure report: Supreme Court.

While discussing the legal position Supreme Court observed:-

That The law is well-settled that in case a final report is filed under Section 173(2) Cr.P.C. stating that no offence is made out against the accused, any of the following courses can be adopted by the Magistrate:

(a) He may accept the report which was filed by the police in which case the proceedings would stand closed.

 (b) He may not accept the report and may take cognizance in the matter on the basis of such final report which was presented by the police.

(c) If he is not satisfied by the investigation so undertaken by the police, he may direct further investigation in the matter.

The law is further well-settled that the judicial discretion to be used by the Magistrate at such stage has to fall in either of the three aforesaid categories.

In the present matter, the magistrate has issued directions directing the police to file charge-sheet under Section 326 and 294 IPC and also the provision of Section 3(1) and 10 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Such a direction is wholly unsustainable.

RAMSWARUP SONY VS  STATE OF M.P.,CRIMINAL APPEAL NO.614 OF 2019 DECIDED ON 8-04-2019

SUPREME COURT ISSUES DIRECTIONS FOR THE BETTER IMPLEMENTATION OF POCSO ACT

A three judges bench of Supreme Court issued following directions for better implementation of POCSO Act

• The High Courts shall ensure that the cases registered under the POCSO Act are tried and disposed off by special courts in compliance with the provisions of the Act

• Such “special courts”, as envisaged under the POCSO Act, may be assigned the duty to deal with cases under the Act

• Instructions shall be issued to the “special courts” to fast-track the disposal of matters by not granting any unnecessary adjournments and following the procedure under the Act of 2012

 • The High Courts shall constitute a committee of an appropriate number of judges to monitor the progress of trial under the Act

 • The Director General of Police of the states shall constitute a Special Task Force to assist in investigation and the production of witnesses before the trial courts on the due date

 • Efforts shall be made by the High Courts to provide child friendly courts in accordance with the spirit of the POCSO Act.

WRIT PETITION (C) No.76 OF 2018

ALAKH ALOK SRIVASTAVA      VERSUS UNION OF INDIA & ORS. SC decided on  1-5-2018                   

SEX AFTER OBTAINING CONSENT BY FALSE PROMISE TO MARRY IS RAPE,

The  Supreme Court while dealing with the above subject observed

“The prosecution has been successful in proving the case that from the very beginning the accused never intended to marry the prosecutrix; he gave false promises/promise to the prosecutrix to marry her and on such false promise he had a physical relation with the prosecutrix; the prosecutrix initially resisted, however, gave the consent relying upon the false promise of the accused that he will marry her and, therefore, her consent can be said to be a consent on misconception of fact as per Section 90 of the IPC and such a consent shall not excuse the accused from the charge of rape and offence under Section 375 of the IPC"

Anurag Soni  Vs State of Chhattisgarh,  Crl. Appl. N. 629 OF 2019 decided on 9/4/2019 SC