JURIS RAY - Patna High Court

JURIS RAYA Journal of B.J.A.

July, 2021

GI HH CA ON UT RA TP

GAIGHAT, PATNA-7

BIHAR JUDICIAL ACADEMYBIHAR JUDICIAL ACADEMY

Hon'ble Mr. Justice Sanjay KarolHon'ble the Chief Justice

Patna High Court -cum- Patron-in-Chief

Bihar Judicial Academy

Hon'ble Mr. Justice Ashwani Kumar SinghJudge-cum-JAD II, Patna High Court -cum- Chairman

Bihar Judicial Academy

Hon'ble Mr. Justice PavanKumar Bhimappa BajanthriJudge, Patna High Court

Hon'ble Mr. Justice Sanjeev Prakash SharmaJudge, Patna High Court

Hon'ble Mr. Justice Mohit Kumar ShahJudge, Patna High Court

Hon'ble Mr. Justice Partha SarthyJudge, Patna High Court

Hon'ble Mr. Justice Nawneet Kumar PandeyJudge, Patna High Court

Hon'ble Board of GovernorsBihar Judicial Academy

JURIS RAYA Journal of B.J.A.

July, 2021

GAIGHAT, PATNA-7

BIHAR JUDICIAL ACADEMY

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THE CONSTITUTION OF INDIA

PREAMBLE

WE, THE PEOPLE OF INDIA, having solemnly

resolved to constitute India into a SOVEREIGN

SOCIALIST SECULAR DEMOCRATIC REPUBLIC

and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and

worship;

EQUALITY of status and of opportunity; and to promote

among them all

FRATERNITY assuring the dignity of the individual and

the unity and integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth

day of November, 1949, do HEREBY ADOPT, ENACT

AND GIVE TO OURSELVES THIS CONSTITUTION.

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CONTENTS

1. HOW TO IMPROVE THE IMAGE OF JUDICIARY: 1-4

A REPORT

2. GENDER BIAS - ROLE OF JUDGE 5-20

3. ELECTRONIC EVIDENCE : 21-30

Decoding The Binary of Admissibility and Proof

5. THE JURISPRUDENCE OF CIRCUMSTANTIAL EVIDENCE 37-54

Saba Alam,

SCOPE AND EXTENT OF POWER U/S.319 55-66

Cr. P. C AS PER APEX COURT IN

HARDEEP SINGH'S CASE (2014)3 SCC 92

THE CONCEPT OF LEGAL AID AND FUNCTIONING OF 66-74

LEGAL SERVICES AUTHORITY

NEED FOR REFORMS IN SECTION - 15 0F 75-84

TH HINDU JSUCCESSION ACT, 1956

(Alok Kumar Pandey, Director, B.J.A)

(Bharat Bhushan Bhasin, Addl. Director, B.J.A)

(Ankur Gupta, Deputy Director, B.J.A)

( Assistant Director (R & T), B.J.A)

6.

(Anil Kumar Srivastava, Dist. – Judge (Retd.))

7.

KishoreKunal

Seema Kumari

4. UNDERTRIAL REVIEW COMMITTEE : 31-36

A SHORT INTRODUCTION

(Aditya Pandey, Administrative Officer, B.J.A.)

8.

PART-1 : ARTICLES

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PART - 2 : SYNOPSIS OF RECENT JUDGEMENTS

9 ynopsis of Recent Judgements of 85-117

Supreme Court (Criminal)

10. Synopsis of Recent Judgements of 118-132

Supreme Court (Civil)

11. Synopsis of Recent Judgements of 133-161

Patna High Court (Criminal)

12. Synopsis of Recent Judgements of 162-171

Patna High Court (Civil)

. S

PART - 3 : RECENT IMPORTANT LEGISLATIONS

13. Video Conferencing Rules 2020. 173-191

14. Protection of Children from sexual offences rules 2020 192-208

15. Compensation scheme for women victims survivors of 209-219

Sexual assault & other Crimes 2019

16. Civil Procedure Mediation Rules 2019. 220-224

PART - 4 : EVENT ARCADE

1. Covid-19 Vaccination Camp 225

2. Online Yoga Series 226

3. Online Lecture Series on the Topic “Law and Vision 227-230

for Judges” By Hon'ble Judges of Patna High Court

4. Judgement Writing Examination of Probationary 231thJudicial Officers of 30 Batch

5. Online Orientation Programme for Commercial Courts 232-233

6. Online Condolence Meeting 234-236

7. Release of Criminal Miscellany and Launch of 237-243

New Website of Bihar Judicial Academy

8. Seminar on "Constitutional Rights against Legal Wrongs" 244-248

9. Valedictory Session of Probationary Judicial Officers 249-256thof 30 Batch of Bihar Judicial Service Addressed.

10. Online Moot Court Competition 257-259

JURIS RAY

PART-1

ARTICLES

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HOW TO IMPROVE THE IMAGE OF

JUDICIARY: A REPORT

The Founding Father of our Constitution placed justice at the highest

pedestal and the Preamble to our Constitution significantly noticed justice higher

than other principles i.e., liberty, equality and fraternity. Again, the preamble

clearly demonstrates the precedence to social and economic justice over political

justice. Therefore, it is rightly said that Justice Delivery System is based on edifice

of faith arising out of urges and aspirations of people belonging to different strata of

the society. But recently, after seeing the jubilation and celebration across the

nation over killing of rape accused in Hyderabad in the name of quick justice, has

compelled us to think whether present Justice Delivery System is able to live up

the faith and aspirations of masses of nation?. If such faith erodes, anarchy

prevails. As rightly said by Honorable C.J.I. that “Justice is not Justice if it's

revenge”.

The issue at hand involves issues of great expectations a Countryman has

from a Judge who knows nobody, and whose pious duty is to preach and practice:

? ? ? ? ??? ? ?? ? ? ? ? ? (Yato Dharmastato Jayah) “Whence Justice (Dharma), thence

victory”. But we are living up to the legitimate expectations of 'We, the people of

India? We need to introspect for a promising prospect.

First step towards treatment is to diagnose the real disease. Justice

Delivery System is plagued with two monstrous problems. 1. Delay in disposal of

cases and 2. Large number of pending cases. Both problems are in symbiosis with

each other, hence, must be taken up together for working solutions.

Image of Indian Judicial System is directly proportionate to the delay in

disposal of cases. As Lord Hewitt once said that "Justice Delayed is Justice

denied”. But in our context, it is not only Justice denied" but also Rule of Law

destroyed.

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Alok Kumar Pandey

Director, Bihar Judicial Academy

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Recent studies have pointed to four key bottlenecks that cause delays in civil

and criminal proceedings, namely (a) Service of process; (b) Adjournments; (c)

Interlocutory Orders; and (d) Appearance of witnesses and accused.

To redress the situation, we need to have a bottom up approach. A high level

team must visit each district court to ascertain what is lacking in terms of

infrastructure and facilities. Secondly we need to identify the number of pending

cases and status of each case. A court's ability to dispose of cases depends on both

the volume of cases it has to process and the resources it has. On both these fronts,

India faces challenges. It is therefore suggested that number of cases pending

before a court must be reasonable and equal distribution of cases amongst officers

must be adhered to.

As Hon'ble former CJI, recently said that more than 50% cases are pending

because of non execution of processes issued by the court. Here due to laxity on the

part of executive department of the government justice is being delayed. It is

therefore suggested that special cells should be created at the district court levels

to resolve issues in co-ordination with law enforcement and other governmental

authorities. Taking cue from the district Court, Delhi we should also apply the

concept of Naib Court/Court Police so that delay caused due to non execution of

processes issued by Court can be resolved. Say for example, several cases are

pending for the death report of accused. If better co-ordination is established

amongst different departments of government and the Court, such kind of delay

can easily be avoided. In G.O. cases most of the witnesses are government

employees and it is herculean task to secure their appearance to proceed further in

the case. It is therefore suggested in such cases D.M./S.P. must be directed to

produce such employees before the Court in time bound manner. It is further

suggested for time bound disposal of cases, digitisation of processes is much

needed for the timely appearance of accused persons and witnesses and time

bound monitoring of cases.

To tackle such problems, the concept of case management comes handy.

Under this concept priority should be given to creating time tables for every

contested case and monitoring its progression by means of computerised system.

Case management also involves the use of strategies to keep matters out of Courts.

It is therefore suggested ADR method should be promoted vigorously. And here we

need to focus more and more Lok Adalat in particular and DLSA as general. The

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Chairman DLSA should work as front leader and catalyst respectively to ensure

justice to the victims and for the access of justice to the under privileged.

Currently ADJ Courts are working at full strength; at this juncture we must

ensure proper division of works amongst them. All officers in this cadre must be

utilised properly with regard to distribution and division of cases. The work of

ADJs should be specifically and conclusively categorized in the light of pendency

with regard to civil matters and criminal matters. Division of work will effectively

improve disposal of cases and by this, image of judiciary will improve.

The ruling in Arnesh Kumar v. State of Bihar, must be followed strictly to

reduce the number of bail petitions in lower courts and in turn in Honourable High

Court.

It is also suggested that practice of calling for LCR and CD in routine

manner should be avoided unless and until it is required. This will ensure speedy

disposal of bail and revision.

For the improvement of infrastructure regarding purchasing of furniture etc,

fund should be directly given to District Judge at local level.

The quality of investigation and the prosecution is very poor. In most of the

cases, investigation is unscientific and based on obsolete concept and done in

haphazard manner. Prosecution seems to be least interested in the pursuing the

case and due to their inability, loose the case most of the time. It is therefore

suggested that Prosecution should be held responsible for non-appearance of

witnesses. It is further suggested that a reform is much needed in police and

prosecution department.

The role of academia is also very crucial for the image building of judiciary. It

provides the seed capital for a vibrant judiciary. A right admixture of study and

practice at the college level will for sure, produce brilliant lawyers and brilliant

judicial officers.

Judiciary being inanimate thing is being represented by its Officers.

Therefore, officers should be given proper training in this regard. Further Officers

should be provided with personal security guard so that they can discharge their

duty fearlessly. Official vehicles should be provided to the officers with driver.

Official residents should be provided for officers' accommodation.

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The conduct and behaviour of the Judge has far reaching consequences to

impress the society at large. His behaviour on the dias and off the dias, his time

schedule for working hours coupled with fairness connecting all the Stakeholders

is the essence of echo of the Justice Delivery System. It is not an exaggeration to

state that a good batsman keeps his bat straight within playground and outside the

playground for example, District Judge being a front leader at District Judicial

Level, he can innovate approach to reach the remotest area at grass root level

whereby Legal Aid Clinic should be opened in every village and legal awareness

should be treated as Grievance Redressal Forum, so that despair of poor can be

restored to the stair of hope and para legal volunteers should be assigned specific

task along with Panel Lawyers to get the grievance of the poorest of poor of the

remotest village who are not able to reach at the traditional adversial justice

delivery system.

So, possibilities are endless, and if adopted with a missionary zeal can work

wonders for the entire organ. At the end it can be said that “Everything has been

said already, but as no one listens, we must always begin again.

******

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GENDER BIAS - ROLE OF JUDGE

Gender remains a critically important and largely ignored lens to view

development issues across the world. Gender indiscrimination or Gender bias' is a

term commonly used to describe how far behind women have remained in seizing

opportunities for improving their level of living. This paper relates to gender bias in

relation with sexual violence. Before adverting to the role of Judge in shrinking the

gender bias, it is apropos to glance over journey of the status of Indian Women, so

far.

Foundation of human civilization and its development are consequences of

persistent women endeavour. Distinguished women contribution has through its

history of superiority and confinement conveyed the picturesque of civilization.

Sh. Anant Sadashiv Altekar's famous book 'The Position of Women in Hindu

Civilization From Prehistoric Times to the Present Day', is recognized as first

historical survey of the status of Indian Women. According to Altekar “one of the

best ways to understand the spirit of a civilization and to appreciate its excellences

and realise its limitations is to study the history of the position and status of women

in it.” The influence of Indian society on gender has varied widely over time and

space due to the differences in socio-cultural traditions and practices. Status and

honour of women in society can be judged from famous shloka –

The famous shloka means - where Women are honored, divinity blossoms

there, and where women are dishonored, all action no matter how noble remain

unfruitful. Existence of a preference for son, was always accepted in early Vedic

India, however girls' education was well recognized. The girls' education, during

Vedic era used to pass through the stages of Upanayana and Brahmacharya leading

JOURNEY OF STATUS OF WOMEN IN OUR SOCIETY

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JURIS RAY

Bharat Bhushan Bhasin

Additional Director, Bihar Judicial Academy

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to the marital state. Women in early Vedic family affairs enjoyed both their

autonomy and their role as wives was considered to be ardhangini (better half).

Womanhood was idealized as an honourable position both in and outside the home

during most celebrated period of Ramayana and Mahabharata (the Epic Period), as

well. Gender equity was also observed during the period of Jainism and Buddhism.

As a matter of fact, Buddhist philosophy encouraged women to lead a liberal and

honourable life. They were not restricted to household chores but were encouraged

to pursue educational careers of their desire. Between 200 BC & 647 AD, women's

right to education was almost withdrawn. It was the period when child marriage

took significant place in society and husband was given the status of God (devta).

During this period widow marriage was socially banned, her succession rights were

almost diminished. This era also witnessed development of monogamous families

with insistence on female chastity and indicated the direct influence of economic

developments in favour of male domination. Although, historical studies and

women's contemporary status discloses that Indian society since 200BC least

accepted womanhood as being equal, even today women's stories signifying her

glory and achievements are recognised and cherished in our society. That being a

truth, the other facet of the coin well projects noteworthy role Women played in

strengthening the dynamism of human civilisation. One of the manifestations of thsuch social identification is celebration of International Women's Day on every 8 of

March.

Today Indian women is marching with pace in every sphere which in turn is

paving the way for mother Nation to touch higher horizons in terms of development

and glory. Women right to education, succession, property, socio-cultural

privileges, employment, political and all other rights stand legally fortified.

Numerous Indian statutes not only recognize but also lay down procedures and

safeguards for women rights and measures to curb gender discrimination. Despite

having strict and promising legislations we are witnessing increasing number of

cases involving sexual violence in our country. The prevalence of physical or sexual

violence ranges from 6% in Himachal Pradesh, 13% in Jammu and Kashmir and

Meghalaya, 46% in Madhya Pradesh Rajasthan and 59% in Bihar. Domestic

violence, rape and dowry-related violence are sources of gender violence. According

GENDER VIOLENCE

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to the National Crime Records Bureau 2013 annual report, 24,923 rape cases were

reported across India in 2012. Out of these, 24,470 were committed by relative or

neighbour. In other words, the victim knew the alleged rapist in 98 per cent of the

cases. In the year 2019 about 32033 rape cases were registered and more than

88000 cases of molestation were registered in 2019 itself. In addition to it around

46000 POCSO cases, where victim were girl children, were reported in the year

2019 The conviction rate in rape and sexual violence cases, across the country is

less than 30%. As per different studies about 70-99 per cent sexual violence cases

are not reported.

Hon'ble Supreme Court in case titled Aparna Bhat Vs. State of Madhya

Pradesh, AIR 2021 SC 1492 observed – “Gender violence is most often unseen and

is shrouded in a culture of silence. The causes and factors of violence against

women include entrenched unequal power equations between men and women that

foster violence and its acceptability, aggravated by cultural and social norms,

economic dependence, poverty and alcohol consumption, etc. In India, the culprits

are often known to the woman; the social and economic "costs" of reporting such

crimes are high. General economic dependence on family and fear of social

ostracization act as significant disincentives for women to report any kind of sexual

violence, abuse or abhorrent behaviour. Therefore, the actual incidence of violence

against women in India is probably much higher than the data suggests, and

women may continue to face hostility and have to remain in environments where

they are subject to violence. This silence needs to be broken. In doing so, men,

perhaps more, than women have a duty and role to play in averting and combating

violence against women.”

Hon'ble Justice J.S. Verma Committee appointed in the aftermath of the

Nirbhaya incident to suggest reforms in Indian criminal law, observed that:

“ We believe that while certain measures may have been taken over a period

of time but they have been too far and too few and they certainly have not attempted

to restructure and transform society and its institutions. If there has to be a society

which is based on equality of gender, we must ensure that not only does a woman

not suffer on account of gender but also not suffer on account of caste or religion in

CAUSES OF GENDER VIOLENCE :

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addition. Thus a woman may suffer a double disadvantage - a) because she is a

woman, and b) because she belongs to a caste/tribe/community/religion which is

disadvantaged, she stands at a dangerous intersection if poor.”

The main cause of violence is the perpetrator himself or herself. Most

important aspect which needs to be borne in mind is that a person who has been

affected by gender based violence is never responsible for the perpetrator's actions.

Prominent causes of gender violence can be categorized under four heads –

CULTURAL, ECONOMIC, SOCIAL & LEGAL

Patriarchal views, gender stereotypes, gender based prejudices,

lack of moral values, vulnerability etc., are major socio-cultural reasons leading to

gender violence. Historical traditions and views have also sanctioned the physical

punishment of women under the belief of prerogative and ownership of women.

Lack of economic resources make women vulnerable to violence.

Violence and poverty form an inter-woven pattern making it difficult for victims to

disengage themselves.

Chastity is sometimes attached with so-called family honour in some of

the societies. Females having more than one relation are known to have indulged in

forbidden sex relations and are thus victimized for the sake of honour. Such women

are considered as threat to societal norms and are turned out of the society, thus,

making them prone to hate crimes. Gender violence is also based upon

intersections of race, caste, religion, disability, age, sexual orientation etc. Child

abuse by close relative, lack of social and family values, alcohol and drug abuse are

also some noticeable social factors causing gender violence.

“A woman cannot be herself in the society of the present day, which is an

exclusively masculine society with laws framed by men and with a judicial system

that judges feminine conduct from a masculine point of view.” - Henrik Ibsen. This

quote was referred by their Lordship in case titled Aparna Bhat Vs. State of

Madhya Pradesh (supra). Hon'ble Supreme Court also noted that – “Women often

experience obstacles in gaining access to mechanisms of redress, including legal

aid, cancelling services and shelters. They are re-victimized and exposed to further

risk of violence through the denial of redress in the context of informal trials or

CULTURAL :-

ECONOMIC :-

SOCIAL :-

LEGAL :-

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negotiations between families and community leaders. The payment of financial

compensation by the perpetrator or his family for acts of violence against women, in

lieu of legal remedies, was a recurrent concern vis-à-vis the formal and informal

justice systems…..”

Lack of legal aid, inability to access redress in police station, social stigma,

pressure from families and peers, threat from offenders, harsh and non-

compassionate treatment by society and sometimes by police, low conviction rate

(less deterrent effect) and HESITATION FROM SECONDARY VICTIMIZATION

are some legal factors which indirectly are responsible for increasing number of

cases of gender based violence.

Hon'ble Supreme Court in Aparna Bhat's case (supra) observed that “The

role of all courts is to make sure that the survivor can rely on their impartiality and

neutrality, at every stage in a criminal proceeding, where she is the survivor and an

aggrieved party. Even an indirect undermining of this responsibility cast upon the

court, by permitting discursive formations on behalf of the Accused, that seek to

diminish his agency, or underplay his role as an active participant (or perpetrator) of

the crime, could in many cases, shake the confidence of the rape survivor (or accuser

of the crime) in the impartiality of the court. The current attitude regarding crimes

against women typically is that "grave" offences like rape are not tolerable and

offenders must be punished. This, however, only takes into consideration rape and

other serious forms of gender-based physical violence. The challenges Indian women

face are formidable: they include a misogynistic society with entrenched cultural

values and beliefs, bias (often sub-conscious) about the stereotypical role of women,

social and political structures that are heavily male-centric, most often legal

enforcement structures that either cannot cope with, or are unwilling to take strict

and timely measures. Therefore, reinforcement of this stereotype, in court utterances

or orders, through considerations which are extraneous to the case, would impact

fairness.”

Role of Court vis-à-vis gender violence need to be addressed broadly on two

levels – firstly, Attitude level i.e., the Judge should be sensitive towards Gender

ROLE OF COURTS IN CURBING GENDER VIOLENCE

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bias and secondly, Aptitude level i.e., Judge should proactively ensure that

relevant law and procedures are strictly implemented and followed.

Zero tolerance towards gender bias and discrimination need to be

developed in judicial functions. Even if a Judge remains neutral and allows gender

specific arguments to be addressed, such neutral conduct indirectly promotes

Gender violence. One needs to be sensitive towards the trauma a victim of sexual

violence has suffered and daring she exhibited in reporting the crime. If a judge

silently allows biased arguments or character assassination arguments to be

addressed on behalf of accused, such insensitive attitude not only shakes the trust

of victim but also discourages her endeavour for seeking redress and justice. In

some cases it has surfaced up that courts have suggested or imposed conditions of

bail to accused of sexual violence, which itself frustrated the very purpose of quest

for justice.

Insensitivity of judges illustrative manifestations :- Insensitivity towards Gender

bias, was reflected in some bail orders. Such Bail orders directly or indirectly

supported Marriage proposal/compromise between survivor and accused; tying of

rakhi by victim to the perpetrator of crime; community service; contribution to

COVID hospitals or relief funds; plantation of trees, etc.

Hon'ble Supreme Court in Sumit Mehta vs State of NCT of Delhi (2013) 15 scc 570,

observed that Role of courts is not that of social reformer or fund raiser or imposing

conditions which have no nexus with the offense or relevance with the object of the

bail provisions. it was observed that while granting relief u/s 438 cr.p.c appropriate

conditions can be imposed so as to ensure an uninterrupted investigation. The

object of putting such conditions should be to avoid the possibility of accused

hampering the investigation. Thus any condition which has no reference to the

fairness of propriety of the investigation or trial cannot be countenanced as

permissible under the law. Similarly, in Kunal Kumar Tiwari vs State of Bihar

(2018) 16 scc 74 it was observed that phrase 'in the interest of justice' as under

section 437(3) cr.cp.c., means good administration of justice or advancing the trial

process and inclusion of broader meaning should be shunned because of purposive

ATTITUDE LEVEL :

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interpretation. The conditions cannot be arbitrary, fanciful or extend beyond the

ends of the provision

Need to develop sensitive attitude while conducting proceedings

in cases involving sexual violence is desirable and necessary for courts in order to

justify and safeguard trust of most vulnerable victims. Comments viz., – victim is of

loose character, habitual to sexual intercourse should not be used. Prosecutrix's

casual relationships, promiscuous attitude or voyeuristic mind etc. should not be

included in order or judgment. Even arguments in this regard should be sternly

discouraged specially during bail hearings.

At Aptitude level a Judge should consistently refresh knowledge and

practice of special provisions specially inserted in the Statutes to uphold honour

and dignity of woman. These legal provisions will only manifest the intention of

legislator if the same are implemented by concerned law enforcing agencies. To

check and follow proper implementation of laws and legal provisions is one of the

primary duties of court and same need to be adhered to in letter and spirit. Some of

such relevant and important legal provisions intended to safeguard womanhood

and rights of victims are referred here after.

Role of Court regarding implementation of laws specially laid down for

women and their rights :-

According to section 12(c) of Legal Services Authorities Act, 1987 every

woman is entitled for legal aid. Courts must ensure that the victims are well aware

of their right to have legal aid at the very initial stage of proceedings.

It is duty of District Legal Services Authority and Police to

provide immediate first aid facility or medical benefits free of cost to the

victims. A magistrate of the area concerned may also issue appropriate

NO INSENTIVE REMARKS AT DIFFERENT STAGES OF COURT

PROCEEDINGS :

APPTITUDE LEVEL

LEGAL AID :

CRIMINAL PROCEDURE CODE :

? Section 357A (6) :

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certificate for providing medical aid as well as interim relief to the victim. It

is therefore required that in every suitable case, Magistrate concerned

should even suo moto issue the required certificate to the victim for

providing her interim relief.

Concerned Magistrate need to be vigilant and pro-

active regarding mandatory implementation of recording of First

Information Report u/s 154 cr,p.c. by police. It need to be checked whether

proviso relating to recording of statement by women officer has been

complied with by police or not further it need to be looked whether police

has complied the proviso regarding disabled victim in whose case the

statement ought to be recorded at place convenient for the victim. Non

registration of case despite information furnished to police by the victim or

on her behalf, whenever reported to Magistrate, should be pro-actively

considered and appropriate action in the light of Section 166A (c) IPC r/w

section 156(3) cr.p.c., should be taken.

It has been held by Hon'ble Supreme Court in

Sakri Vasu vs state of U.P (2008) 2 SCC 409; Mohd. Yousuf vs Smt. Afaq

Jahan and ors. (2006) 1 SCC 627 & Vinubhai Haribhai Malviya and ors. Vs

State of Gujarat (2019) 17 SCC 43 that power of Magistrate under section

156(3) cr.p.c., is very wide which extends to monitor the investigation and

pass any appropriate order if it is found that investigation is not being

carried out properly. Magistrate concerned should use the power u/s 156(3)

cr.p.c., to ensure that all mandatory provisions are complied with by the

police after calling status report.

Pro-active vigilance is required regarding strict

compliance of section 160 Cr.P.C., regarding examination of woman,

disabled, old and child below 15 years of age. Proviso to section 160 cr.p.c.,

requires that Police officer cannot summon such witnesses to police station

and their examination has be conducted by police officer at his/her

residence only. In case it is noticed that investigating officer has

contravened section 160 Cr.P.C., concerned Magistrate should issue

directions for taking action against such erring officer u/s 166 A (a) IPC.

? Section 154 Cr.P.C. :

? Section 156(3) Cr.P.C., :

? Section 160 Cr.P.C. :

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? Section 164 cr.p.c. : Concerned Magistrate must ensure that mandatory

requirement of Recording of section 164 crpc., is duly complied with by the

investigating officer. Section 164(5A) Cr.P.C. requires the Judicial

Magistrate to record statement of the person against whom offence

punishable u/s 354, 354A, 354B, 354C, 354D,376B, 376C, 376D, 376DA,

376DB, 376E or section 309 has been committed. In case of temporarily or

permanently mentally or physically disabled victim, the statement is to be

recorded with assistance of an interpreter or a special educator and such

statement is to be video-graphed. Hon'ble Supreme Court in State Of

Karnataka vs Shivanna @ Tarkari Shivanna SPECIAL LEAVE PETITION

(CRL.) NO. 5073/2011, on 24-04-2014 passed following directions –

…..“hence exercising powers under of the Constitution, we are

pleased to issue interim directions in the form of mandamus to all the police

station in charge in the entire country to follow the direction of this Court

which are as follows:

(i) Upon receipt of information relating to the commission of offence of rape, the

Investigating Officer shall make immediate steps to take the victim to any

Metropolitan/preferably Judicial Magistrate for the purpose of recording her

statement under Cr.P.C. A copy of the statement under

Cr.P.C. should be handed over to the Investigating Officer immediately

with a specific direction that the contents of such statement under

Cr.P.C. should not be disclosed to any person till charge sheet/report

under Cr.P.C. is filed.

(ii) The Investigating Officer shall as far as possible take the victim to the nearest

Lady Metropolitan/preferably Lady Judicial Magistrate.

(iii) The Investigating Officer shall record specifically the date and the time at

which he learnt about the commission of the offence of rape and the date and

time at which he took the victim to the Metropolitan/preferably Lady

Judicial Magistrate as aforesaid.

(iv)If there is any delay exceeding 24 hours in taking the victim to the

Magistrate, the Investigating Officer should record the reasons for the same

in the case diary and hand over a copy of the same to the Magistrate.

Article 142

Section 164 Section

164

Section

164

Section 173

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(v) Medical Examination of the victim: A Cr.P.C. inserted by Act 25

of 2005 in . imposes an obligation on the part of Investigating Officer to

get the victim of the rape immediately medically examined. A copy of the

report of such medical examination should be immediately handed over to the

Magistrate who records the statement of the victim under Cr.P.C.

Police is required to complete investigation in

rape cases within two months from the date of receipt of information in

police station. The provision need to be got implemented strictly. Similar

provisions are contained under special statutes viz., Scheduled Cast and

Scheduled Tribes (Prevention of Atrocities) Act & The Protection of

Children from Sexual Offences (POCSO) Act. Court should issue notice

demanding status of the investigation and ensure timely filing of charge-

sheet. The role of court is to seek status of investigation periodically and

monitor the investigation within the ambit of section 156(3) cr.p.c.

In all cases involving sexual violence, court must h o l d

the proceedings in camera. Proviso to section 327 mandates that all

rape cases should be conducted in camera. Hon'ble Supreme Court in

Sakshi Vs Union of India, AIR 2004 SC 3566, held that in cases u/s 354 and

377 examination of victim should also be conducted in camera.

Court must pro-actively stop counsels on behalf of

accused from asking questions about general immoral character or

previous sexual experience of the victim.

Court need to be vigilant during examination of

victims during the trial and must strictly bar asking Indecent ,

scandalous, or questions which tend to insult or annoy the witness.

In Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4

SCC 158 it was held that The Courts have to take a participatory role in a

trial. They are not expected to be tape recorders to record whatever is

Section 164

Cr.P.C

Section 164

? Section 173 (1A) Cr.P.C., :

? Section 327 Cr.P.C :

?Section 146 (proviso) :

?Section 151 & 152 :

?Section 165 :

INDIAN EVIDENCE ACT :

JURIS RAY

| 15 |

being stated by the witnesses. Section 311 of the Code and Section 165 of

the Evidence Act confer vast and wide powers on Presiding Officers of

Court to elicit all necessary materials by playing an active role in the

evidence collecting process. They have to monitor the proceedings in

aid of justice in a manner that something, which is not relevant, is not

unnecessarily brought into record. Even if the prosecutor is remiss in

some ways, it can control the proceedings effectively so that ultimate

objective i.e. truth is arrived at. This becomes more necessary when the

Court has reasons to believe that the prosecuting agency or the

prosecutor is not acting in the requisite manner. The Court cannot afford

to be wishfully or pretend to be blissfully ignorant or oblivious to such

serious pitfalls or dereliction of duty on the part of the prosecuting

agency. The prosecutor who does not act fairly and acts more like a

counsel for the defence is a liability to the fair judicial system, and Courts

could not also play into the hands of such prosecuting agency

showing indifference or adopting an attitude of total aloofness.” In

Himanshu Singh Sabharwal vs. State of M.P. and Ors. (2008)3SCC602:

MANU/SC/1193/2008 it was observed by Hon'ble Apex Court that

“Presiding Judge most not be a spectator and mere recording machine.

Evidence Act (1 of 1872) , S.165— If a criminal Court is to be an effective

instrument in dispensing justice, the presiding Judge must cease to be a

spectator and a mere recording machine by becoming a participant in the

trial evincing intelligence, active interest and elicit all relevant materials

necessary for reaching the correct conclusion, to find out the truth, and

administer justice with fairness and impartiality both to the parties and

to the community it serves. Courts administering criminal justice cannot

turn a blind eye to vexatious or oppressive conduct that has occurred in

relation to proceedings, even if a fair trial is still possible, except at the

risk of undermining the fair name and standing of the Judges as

impartial and independent adjudicators.(Para 8) The Courts have to take

a participatory role in a trial. They are not expected to be tape recorders

to record whatever is being stated by the witness…” It is therefore

required that Trial Court should use power to examine any witness to

elicit truth as provided u/s 165 cr.p.c.

JURIS RAY

| 16 |

?Section 118 and 119 : Court must be vigilant while examining witness

who are unable to communicate verbally. It should be ensured that State

Government make arrangements for making available special

educator/interpreter/support person. Specific order to this effect may be

passed in suitable cases to prosecution to make such arrangements. At

the same time victims with disabilities should not be out rightly

considered as incompetent witnesses. Hon'ble Apex Court in Patan

Jamal Vali vs The State of Andhra Pradesh : AIR2021SC2190, observed

that “There have been instances where the testimony of a disabled

prosecutrix has not been considered seriously and treated at an equal

footing as that of their able-bodied counterparts. One such instance is the

judgment of this Court in Mange v. State of Haryana

MANU/SC/0165/1979 : (1979) 4 SCC 349, where the testimony of a

thirteen year-old girl who was deaf and mute was not recorded and the

conviction was confirmed on the account of an eye witness and supported

by medical evidence. This Court in affirming the conviction noted that the

non-examination of the prosecutrix was not a major infirmity in the

prosecution's case "apart from being a child witness, she was also deaf and

dumb and no useful purpose would have been served by examining her." We

are of the considered view that presumptions of such nature which construe

disability as an incapacity to participate in the legal process reflect not

only an inadequate understanding of how disability operates but may also

result in amiscarriage of justice through a devaluation of crucial

testimonies given by persons with disabilities. The legal personhood of

persons with disabilities cannot be premised on societal stereotypes of their

supposed "inferiority", which is an affront to their dignity and a negation

of the principle of equality. A survey and analysis of High Court judgments

by Saptarshi Mandal indicates that the testimony of the disabled witnesses

is devalued by not recording the testimony of the prosecutrix at all; or

recording it without adherence to correct legal procedure, thereby

rendering it ineffectual; dismissal of the testimony for its lack of

intelligibility or for not being supported by the condition of her body. This

kind of a judicial attitude stems from and perpetuates the underlying bias

JURIS RAY

| 17 |

and stereotypes against persons with disabilities. We are of the view that

the testimony of a prosecutrix with a disability, or of a disabled witness for

that matter, cannot be considered weak or inferior, only because such an

individual interacts with the world in a different manner, vis-à-vis their

able-bodied counterparts. As long as the testimony of such a witness

otherwise meets the criteria for inspiring judicial confidence, it is entitled to

full legal weight. It goes without saying that the court appreciating such

testimony needs to be attentive to the fact that the witness' disability can

have the consequence of the testimony being rendered in a different form,

relative to that of an able-bodied witness.”

In cases under POCSO Act, provisions relating to examination of

child victim as laid down from section 23 to 40 should be adhered to strictly

and court must ensure that the same are duly complied with.

Threatening any person to give false evidence is

punishable under newly inserted penal provision under Indian Penal Code.

Whenever, a complaint or reference from witness is brought before Trial

Court or committal court, the same need to be channelled for institution of

prosecution of the person threatening.

Procedure for witnesses in case of threatening is laid

down under section 195A of Cr.P.C., it corresponds and enables section 195A

IPC. Pro-active implementation of these provisions by trial court is

desirable in suitable cases.

In Aparna Bhat's case, Hon'ble Apex Court

was pleased to direct that “Where circumstances exist for the court to believe

that there might be a potential threat of harassment of the victim, or upon

apprehension expressed, after calling for reports from the police, the nature of

protection shall be separately considered and appropriate order made, in

addition to a direction to the Accused not to make any contact with the

victim.”

EXAMINING CHILD VICTIM UNDER POCSO :

WITNESS PROTECTION :

?Section 195 A I.P.C :

?Section 195 A Cr.P.C. :

?Witness Protection Scheme :

JURIS RAY

| 18 |

Protection of witness was felt and considered by Hon'ble Apex Court in

Mahender Chawla and Ors. Vs. Union of India (UOI) and Ors.

(2019)14SCC615 and in compliance of directions issued by Hon'ble

Supreme Court almost every State has formulated Witness Protection

Scheme. In Bihar vide gazette notification (No. 38 Extraordinary, dated 15-

01-2020) Bihar Witness Protection Scheme has been enacted. Courts need

to pro- actively make the victims aware about the Scheme and ensure that in

all suitable and deserving cases witness protection is provided to the

victims. This will reduce the chances of witness being won over by or on

behalf of accused.

In addition to above referred special provisions which Courts must

refresh and always consider while dealing with gender violence cases, there

are various statutes which tend to curb out gender bias. Constitution of

India provides for equality among all under article 14, 15 & 16, equality in

opportunity to livelihood (Article 39(a)), equal work equal pay (Article

39(d)), in addition to it Article 39A, Article 42, Article 46, Article 47, Article

51(A)(e), Article 243 D(3), (4), Article 243T(3) & (4) all these provisions

have been laid down to ensure women empowerment. Besides these

constitutional provisions special laws have been enacted to protect and

safeguard womanhood. These legislations include The Immoral Traffic

(Prevention) Act, 1956, The Dowry Prohibition Act, 1961 (28 of 1961)

(Amended in 1986) The Special Marriage Act, 1954, The Hindu

Marriage Act, 1955, The Hindu Succession Act, 1956 with Amendment in

2005, The Indecent Representation of Women (Prohibition) Act, 1986, The

Commission of Sati (Prevention) Act, 1987 (3 of 1988) The National

commission for Women Act, 1990, Pre-Conception and Pre-Natal Diagnostic

Techniques (PCPNDT) Act, 1994, Protection of Women from Domestic

Violence Act, 2005 The Prohibition of Child Marriage Act, 2006 ,The Sexual

Harassment of Women at Workplace (Prevention, Prohibition And

Redressal) Act, 2013 The Criminal Law (Amendment) Act, 2013, The

Muslim Women (Protection Of Rights On Marriage) Act, 2019 etc.

Despite having stringent and specific legislations to remove gender

,

,

,

JURIS RAY

| 19 |

bias and sexual violence, the number of such cases is increasing day by day.

At this juncture, it is apt to refer quote of Alexander Hamilton –

Role of Courts in addressing the issue of Gender Bias in relation with

sexual violence is utmost vital and incumbent. There is need to remind

overselves, again and again that courts at district level are the first interface

for redress and justice expected and relied by the victims. A victim, despite

all odds and social stigmas, after collecting courage reports sexual violence,

her call expects only justice to be done by the Judge. But if she has to face

stereotypes and insensitiveness, not only her faith fails but it also

discourages others to take the audacious step in reporting sexual violence,

further any insensitive approach encourages and indirectly enhances

chances of incidents of gender violence.

The judiciary will not be trusted if it is viewed as a direct or indirect

supporter of deep-rooted misogynistic, male-centric, and gender bias

beliefs, oblivious to changes in society and to the needs of the most

vulnerable victims. A Judge does not by his appointment itself or

miraculously isolates himself from biases and prejudices. While there is no

simple or omnibus solution to this problem with regards to the judiciary,

differentiating, dissecting and ignoring his own life experiences with of

those whose case is before the judge and by having open mind approach, will

definitely improve the probability that biases and prejudices will be

checked.

In the backdrop of food for thought as penned hereinbefore, it seems

befitting to conclude with following poetic top-up.

“ LAWS ARE A DEAD LETTER WITHOUT COURTS TO EXPOUND AND

DEFINE THEIR TRUE MEANING AND OPERATION.”

JURIS RAY

| 20 |

^̂ugha feyk**

iq:"k iz/kku lekt esa] fprk lk bls xHkZ feyk

Hkzw.k j{kk vf/kdkjksa ls] dgk¡ dU;k tue dks izk.k feyk

HkkbZ le lEifÙk ls] dgk¡ d̂U;k&nku* dks voje feyk

?ku yksHk dh lwyh ij] p<+rh jkst+ ;gk¡ cyh gS]

ngst fojks/kh fof/k;ksa ls] dgk¡ nqYgu dks thou nku feyk A

ru dh Hkw[kh vk¡[kksa dks] dc n.M dk Hk; feyk

dBksj dkjkokl fo/kkuksa ls] dc 'khy Hkax dks var feyk

bu dksjs & dksjs fu;eksa ls] dc uS;frdrk dks cy feyk

;g dSlh fn'kk gS f'k{kk dh] ftl ls Hkz"V lekt feyk

dkuwu ugha pfj= lq/kkjksa] lEeku gh U;k; gS ukjh dk

er Hkwyks ml dh dqjckuh] ftl ls gh ge dks thou feyk

******

| 21 |

JURIS RAY

ELECTRONIC EVIDENCE

BINARY OF ADMISSIBILITY AND PROOF

DECODING THE

Introduction:

"We cannot allow the dead hand of the past to stifle the growth of the living

present. Law cannot stand still; it must change with the changing social concepts and

values. If the bark that protects the tree fails to grow and expand along with the tree.

It will either choke the tree or if it is a living tree, it will shed that bark and grow a new

living bark'

Justice Bhagwati observed thus in the case of National Textile Workers'

Union v. P.R. Ramakrishnan, MANU/SC/0025/1982 : (1983)ILLJ45SC ,256.

The need to keep pace with the latest technological developments was

recognized by the Indian Legislature when it passed the Information Technology

Act of 2000. Section 92 (since repealed) of the IT Act brought about several

amendments in the Indian Evidence Act and the concept of Electronic Evidence

was introduced for the first time. Prior to 2000 most of the courts were reluctant to

accept electronic evidence because of lack of clarity of definition of electronic

evidence. However time has shown that the act has posed more questions than it

has answered.

Filing of printouts of the call detail record, copy of CCTV footage, printouts of

photographs taken from a mobile phone or filing of voice recording of conversations

pose several complex questions of law. Are the printouts of the call detail record or

of the photographs taken from a mobile phone documentary evidence simpliciter

or do they come within the ambit of electronic evidence? What is the nature of

these printouts-Primary or Secondary? Can they be proved with the oral testimony

of the person who has taken out these CDR or who has clicked the photographs?

ANKUR GUPTA

Deputy Director, Bihar Judicial Academy

| 22 |

This article is an attempt to navigate the complex labyrinth of questions such as

these.

The term electronic evidence is not defined anywhere in the act. However

section 3 of the Indian Evidence Act defines evidence as:

“ Evidence” means and includes—

(1) All statements which the Court permits or requires to be made before it by

witnesses, in relation to matters of fact under inquiry, such statements are

called oral evidence;

(2) All documents including electronic records produced for the inspection of

the Court, such documents are called documentary evidence.

Thus as per section 3 of the Act, electronic evidence is electronic record

produced for the inspection of the court.

Section 2 (t) of the Information technology Act defines Electronic record as :

"electronic record" means data, record or data generated, image or sound

stored, received or sent in an electronic form or micro film or computer

generated micro fiche;'

The definition of electronic record is wide enough to include:

vPhotographs clicked from digital cameras, mobile cameras

vConversation recordings from mobile phones

vData generated thorough mobile phones

vCCtv footage and various other such records.

In the case of VS Lad Vs State of Karnataka 2009 Cri LJ 3760 (

Karnataka), satellite images were held to be electronic evidence.

Interestingly, even though section 3 of the Indian Evidence Act has been

amended to include electronic records in the definition of evidence and they have

been clubbed with documentary evidence but no corresponding amendment was

made in section 62-65. Normally all documents have to be proved by primary

Electronic evidence Definition:

Mode of proving electronic records:

JURIS RAY

| 23 |

evidence except under the circumstances prescribed in section 65 of the Act in

which case secondary evidence may also be given. Since section 62 – 65 have not

been amended to include electronic Evidence therefore this rule is not applicable

to Electronic Record. Instead the mode of proving electronic record is guided by

sections 65 A and 65 B of The Act.

Section 65 A provides that the contents of electronic records may be proved

in accordance with the provisions of section 65B.

Section 65 B(1) provides that Any information contained in any electronic

record, which is printed on paper, stored, recorded or copied in optical or magnetic

media produced by a computer shall be deemed to be a document only if the

conditions mentioned in sub-section 2 are satisfied in relation to the information

and computer in question and shall be admissible in any proceedings without

further proof or production of the original as evidence of any contents of the

original.

Sub Section 2 provides the conditions which have been mentioned in sub

section (1).

These conditions which have been aptly summarized in the case of Anvar

P.V. v. P.K. Basheer AIR 2015 SC 180 are:

(i) The electronic record containing the information should have been

produced by the computer during the period over which the same was

regularly used to store or process information for the purpose of any activity

regularly carried on over that period by the person having lawful control over

the use of that computer;

(ii) The information of the kind contained in electronic record or of the kind

from which the information is derived was regularly fed into the computer in

the ordinary course of the said activity;

(iii) During the material part of the said period, the computer was operating

properly and that even if it was not operating properly for some time, the

break or breaks had not affected either the record or the accuracy of its

contents; and

(iv) The information contained in the record should be a reproduction or

derivation from the information fed into the computer in the ordinary course

of the said activity.

JURIS RAY

| 24 |

Section 65 (B) (3) explains the situations where combination of computers

shall be treated as a single computer.

65 (B) (4) provides that in order to make a document referred to in sub

section 1 admissible in evidence a person occupying a responsible official position

in relation to the operation or management of the relevant device must give a

certificate doing any of the following things:

a) Identifying the electronic record containing the statement and describing

the manner in which it was produced

b) giving such particulars of any device involved in the production of that

electronic record as may be appropriate for the purpose of showing that the

electronic record was produced by a computer.

c) dealing with any of the matters to which the conditions mentioned in sub-

section (2) relate

In the case of Kundan Singh v. State (2014 SCC OnLine Del 6461) the

Hon'ble Delhi High Court clarified that use of the word “officially” “is not

intended to mean or be restricted to a person holding an office or employed in

public capacity” but only refers to “a person primarily responsible for the

management or the use, upkeep or operations of such device”.

In the case of Anvar P.V vs. P.K. Basheer AIR 2015 SC 180, the Hon'ble Apex

Court observed that a certificate under section 65 (B) of the Act must fulfill the

following conditions:

(a) There must be a certificate which identifies the electronic record containing

the statement;

(b) The certificate must describe the manner in which the electronic record was

produced;

(c) The certificate must furnish the particulars of the device involved in the

production of that record;

(d) The certificate must deal with the applicable conditions mentioned under

Section 65B(2) of the Evidence Act; and

Meaning of person in authority in reference to the certificate under section 65 (B):

Conditions to be fulfilled by the Certificate :

JURIS RAY

| 25 |

(e) The certificate must be signed by a person occupying a responsible official

position in relation to the operation of the relevant device.

It was further clarified that the person need only to state in the certificate

that the same is to the best of his knowledge and belief.

Another question that has long perplexed the Courts is the stage at which

the certificate under section 65 (B) of the Act is required to be filed. In the case of

Ankur Chawala Vs CBI, the Hon'ble Delhi High Court had observed that the

certificate must be of the same date when the computer output ( in that case the

CD's) are produced and did not consider the certificate which was filed after the

submission of the Charge Sheet.

However in State vs. M.R. Hiremath (01.05.2019 - SC) :

MANU/SC/0807/2019 AIR2019SC2377 the Hon'ble Supreme Court held that it is

fallacious to insist on the production of the certificate at the time of charge sheet.

The need for production of such a certificate would arise when the electronic record

is sought to be produced in evidence at the trial.

Whether filing of certificate is mandatory for admissibility of electronic

evidence in every case is a question that has long vexed the Indian Courts.

In the case of State (N.C.T. Of Delhi) vs Navjot Sandhu @ Afsan Guru (2005)

11 SCC 600 The Hon'ble Supreme Court held that the call details are held in huge

servers which can not be moved around easily and therefore section 63 and 65 of

the Indian Evidence Act will be applicable irrespective of compliance of section 65

(B) of the Act.

However in Anvar P.V. v. P.K. Basheer AIR 2015 SC 180, the Hon'ble

Supreme Court overruled the law laid down in Navjot Sandhu's case and held that

certificate under section 65 (B) is mandatory in every case where the secondary

evidence of electronic record is sought to be given.

The Anvar's case raised several questions, one of them being meeting with a

circumstance where the party is not in position to produce the certificate. The

rigours of Anvar's case were sought to be assuaged by the Hon'ble Supreme Court

in Shafi Mohammad vs. State of H.P AIR 2018 SC 714 in which the Hon'ble

Supreme Court held that “ In a case where electronic evidence is produced by a

party who is not in possession of a device, applicability of Sections 63 and 65 of the

Evidence Act cannot be held to be excluded. In such case, procedure under the

Stage of filing the Certificate:

Certificate : The holy grail for admissibility of electronic evidence?

JURIS RAY

| 26 |

sections 64 and 65 of Evidence Act can certainly be invoked. If this is not so

permitted, it will be denial of justice to the person who is in possession of authentic

evidence/witness but on account of manner of proving, such document is kept out of

consideration by the Court in absence of certificate Under Section 65B(4) of the

Evidence Act.”

Thus the Judgment in Shafi Mohammad's Case was in conflict with the

Judgment in Anvar's case which further complicated the issue of requirement of

Certificate under Section 65 (B) of the Evidence Act. However the question relating

to mandatory nature of certificate for proving computer output is no longer res

integra. In Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal

AIR2020SC4908 Hon'ble Apex Court held that:

“We may reiterate, therefore, that the certificate required Under Section

65B(4) is a condition precedent to the admissibility of evidence by way of electronic

record, as correctly held in Anvar P.V. (supra), and incorrectly "clarified" in Shafhi

Mohammed (supra). Oral evidence in the place of such certificate cannot possibly

suffice as Section 65B(4) is a mandatory requirement of the law.”

In this case the Hon'ble Apex Court also observed that if the party who intends to

tender secondary evidence of an electronic record in not in possession or control of

the device he can always make an application to a Judge for production of such a

certificate from the requisite person Under Section 65B(4) in cases in which such

person refuses to give it.

Thus the position is very clear now that a certificate under section 65 B is must for

proving copy of electronic record.

Even though there has initially been some variance in opinion about the

requirement of certificate for proving copies of electronic record, the Hon'ble

Supreme Court has consistently held that the certificate under section 65 (B ) is not

required if the original electronic record is itself produced before the Court.

Even in Anvar's case the requirement of the certificate was made mandatory

only in respect of copies of the original electronic record and not in the case of the

original record.

The position was further clarified in the case of Vikram Singh and Ors. vs.

State of Punjab and Ors. (07.07.2017 - SC) : MANU/SC/0758/2017. In this case

The original tape record containing the original recording of ransom call was

Requirement of Certificate where the original is produced before the Court :

JURIS RAY

| 27 |

produced in Court. The Hon'ble Supreme Court held that the tape being primary

evidence there is no need of certificate.

The same position was reiterated in Arjun Panditrao Khotkar vs Kailash

Kushanrao Gorantyal AIR2020SC4908.

In Abdul Rahman Kunji Vs The State of West Bengal the Hon'ble High Court

of Calcutta while deciding the admissibility of emails held that an email

downloaded and printed from the email account of the person can be proved by

virtue of section 65 (B) read with section 88 A of Evidence Act.

Section 88 A of the Act provides that the Court may presume that an

electronic message forwarded by the originator through an electronic mail server

to the addressee to whom the message purports to be addressed corresponds with

the message as fed into his computer for transmission but the court shall not make

any presumption as to the person by whom such message was delivered for

transmission.

Thus where print outs of e mail are sought to be proved following conditions have

to be fulfilled:

1) There must be a certificate envisaged by section 65 (B) of the Act

2) The person must prove that the message was actually sent by the person

who is alleged to have sent them.

If these two conditions are satisfied then the court may presume that the message

corresponds with the message as fed into the computer of the originator for

transmission. Likewise printed copies of sms and messages too require to be

authenticated by the certificate under section 65 (B) of the Act.

Audio recordings in electronic form are also governed by the rules of

admissibility applicable to other electronic documents. In Jagdeo Singh Vs. The

State and others [MANU/DE/0376/2015] while dealing with the admissibility of

intercepted telephone call in a CD and CDR which were produced in court without

certificate under section 65 (B) of Evidence Act, it was observed that the secondary

electronic evidence produced in court without certificate, u/s 65(B) Evidence Act,

is inadmissible and cannot be looked into by the court and therefore the audio

recordings were not accepted.

Proving Emails, sms and messages:

Audio Recordings:

JURIS RAY

| 28 |

Additionally, in case of audio recordings it also needs to be proved that the

voice is actually of the person whose voice it is alleged to be. For this the person

whose voice is to be compared can be compelled to give samples of his voice as was

held in the case of Ritesh Sinha Vs State of UP 2019 SCC OnLine SC 956.

It is indisputable that the admissibility and probative value of an evidence

are not synonymous or interchangeable. Likewise in the case of electronic evidence

also the test of admissibility and of authenticity can not be intermixed.

Section 65 (B) only specifies the rule for admission of electronic evidence. In the case

of Anvar PV ( supra) it was observed that “ Genuiness, Veracity or Reliability of the

evidence is looked into by the court subsequently only after the relevance and

admissibility is fulfilled. The requirement to ensure the source and authenticity,

pertaining to electronic records is because it is more vulnerable to tampering,

alteration, transposition excision etc.”

For aiding the proof about the genuineness of electronic evidence, sections

81 A, 85 A – 88 A and section 90 A of the Act provide for several presumptions.

Further, section 45 A also provides that the opinion of the examiner of the

electronic record evidence referred to in section 79 A of the IT act, 2000 is a

relevant fact when the court has to form an opinion about information stored in

electronic form. The section also provides that such examiner shall be an expert.

Thus the court can also take the aid of examiners in forming opinion about

the authenticity and genuineness of electronic records.

The amendments in Indian Evidence Act brought about by the Information

Technology Act, 2000 were done with a view to clarify the law relating to

admissibility and proof of Electronic Records. However, even after almost a decade

of the enactment the law on the subject is still in flux. The law clearly has not been

able to serve the purpose for which it was enacted. In U.K. the Civil Evidence Act,

1995, makes no distinction between documentary evidence and electronic

evidence resulting in simpler procedures. It is time that we too revisit the law

relating to Electronic Evidence.

Probative Value:

Conclusion:

JURIS RAY

| 29 |

UNDERTRIAL REVIEW COMMITTEE :

A SHORT INTRODUCTION

“The degree of civilisation in a society can be judged by entering its prisons.” th

The famous words of 19 Century Russian novelist Fyodor Dostoevesky (The House

of the Dead - 1860) ring true in the present times. Today, when we are scaling new

peaks of civilisation, the condition of living in our prisons, however, tells a story

which is not much different from what it used to be in the previous era. Prisons are

institutions where undertrials and convicts are lodged away from mainstream

society and public sight. In real world, those entering the four-walls of prison

become a forgotten lot, thus vulnerable to deprivation of legal rights and subject to

maltreatment often in violation of their human rights, and even death.

It is remarkable that more than two third of the inmates in prisons across

the country are undertrials – those who are incarcerated during the stages of trial,

investigation or inquiry but yet to be convicted by a Court of law. The ratio is

unusually high by international standards. The undertrials are compelled to face

ordeal of prison life which is nothing short of punishment despite the cardinal

presumption of innocence in their favour. Furthermore, the average period of stay of

an undertrial in prison being excessively long, means that the constitutional

guarantee of right to life – which includes right to fair and speedy trial is relegated

to dead letters.

Moved by the plight of prisoners Justice R.C. Lahoti, former Chief Justice of

India, had in a letter petition to the Supreme Court mentioned a quote from a

research paper, “Judges rarely expressed concern for the inhumane treatment

that the person being sentenced is likely to face from fellow prisoners and prison

officials, or that time provides poor preparation for a productive life afterwards.

Courts rarely consider tragic personal past that may be partly responsible for

Background

JURIS RAY

Aditya PandeyAdministrative Officer

Bihar Judicial Academy

| 30 |

criminal behavior or how the communities or the families of a defendant will suffer

during and long after his imprisonment.” The Hon'ble Supreme Court converted

this letter petition into a suo moto petition “In Re-inhuman Conditions in 1382 thPrisons”, Writ Petitions (Civil) No. 406 / 2013, and vide historic order dated - 24

April 2015, cretaed an oversight mechanism to monitor the conditions of

undertrials and to provide free legal aid for their early release from prisons. The

Hon'ble Court directed National Legal Services Authority along with Ministry of

Home Affairs and State Legal Services Authorities to ensure formation of

Undertrial Review Committees (hereinafter referred to as UTRC) in every district.

The UTRC, as composed originally through the April 2015 order of the

Supreme Court, was a three member Committee comprising of District & Sessions

Judge as Chairman, and District Magistrate and Superintendent of Police as st st

members. Later, through the orders dated 31 March 2016 and 31 October 2017,

Secretary, District Legal Services Authority (hereinafter referred to as DLSA) and

Officer-in-charge of prison in the district were added as members, respectively, for

its smooth functioning. National Legal Services Authority (hereinafter referred to

as NALSA) Standard Operating Procedure (SOP) proposes inclusion of Public

Prosecutor of the district in the UTRC as member, in order to gain better

coordination with Police Department for complete data about the prisoners and

proper follow up on other recommendations.

thThe Supreme Court order dated 24 April 2015 mandated the UTRC to

review three categories of undertrial prisoners, - those eligible under section 436A

of Criminal Procedure Code (hereinafter referred to as Cr.P.C. or the Code), those

released on bail but unable to furnish security, and those accused of compoundable th thoffences. Later, through orders dated 5 February 2016 and 6 May 2016, the

Hon'ble Court expanded the mandate of UTRCs from 3 categories to 14 categories

of inmates, including convicts, to be reviewed for release. The other 11 categories

are as follows :

1. Under trial prisoners eligible under section 436 Cr.P.C. (Vide Hon'ble th

Supreme Court order dated - 5 February, 2016)

Composition

Mandate

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| 31 |

2. Under trial prisoners either covered under section 3 of the Probation of

Offenders Act or accused of offences under 379, 380, 381, 404 and 420

Indian Penal Code or an offence where imprisonment is of less than two thyears. (Vide Hon'ble Supreme Court order dated - 5 February, 2016)

3. Convicts who have completed their sentence or are entitled to be

released on the remission granted to them. (Vide Hon'ble Supreme thCourt order dated - 5 February, 2016)

4. Undertrial prisoners eligible to be released on bail under section 167

(2)(a)(i) & (ii) of the Code read with section 36A of the Narcotic Drugs

and Psychotropic Substances Act 1985, (where persons accused of

section 19 or section 24 or section 27A or for offences involving

commercial quantity) and where investigation is not completed in th

60/90/180 days. (Vide Hon'ble Supreme Court order dated - 6 May,

2016)

5. Undertrial prisoners of unsound mind and must be dealt with under thChapter XXV of the Code.(Vide Hon'ble Supreme Court order dated - 6

May, 2016)

6. Undertrial prisoners in prison for offences which carry a maximum thpunishment of two years.(Vide Hon'ble Supreme Court order dated - 6

May, 2016)

7. Undertrial prisoners who are detained under chapters VIII of Cr.P.C.

that is under section 107, 108, 109 and 151 of Cr.P.C. (Vide Hon'ble thSupreme Court order dated - 6 May, 2016)

8. Undertrial prisoners who are sick infirm or require specialized medical th

treatment.(Vide Hon'ble Supreme Court order dated - 6 May, 2016)

9. Undertrial women prisoners. (Vide Hon'ble Supreme Court order dated th- 6 May, 2016)

10. Under trial prisoners were the first time offenders between the ages of

19 and 21 years and in custody fo offences punishable with less than 7

years of imprisonment and have suffered at least ¼ of the maximum thsentence possible. (Vide Hon'ble Supreme Court order dated - 6 May,

2016)

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11. Under trial prisoners eligible for release under section 437(6) of Cr.P.C.

wherein in a case triable by a Magistrate the trial of a person accused of

any non bailable offence has not been a concluded within a maximum

period of 60 days from the first date fixed for taking evidence in the th

case. (Vide Hon'ble Supreme Court order dated - 6 May, 2016)

With a view to bringing uniformity in functioning of the UTRCs, the Hon'ble stSupreme Court through an order dated 31 October 2017 directed the National

Legal Services Authority (NALSA) to prepare a Standard Operating Procedure

(SOP) for ensuring that all 14 categories of prisoners get benefit without delay.

National Legal Services Authority, thereafter, formulated the Standard Operating thProcedure and finally on 4 December 2018 the Supreme Court directed all the

States and the Union Territories to adopt and follow NALSA SOP for UTRC.

The review process is carried out by the functionaries in the following

manner - Jail Superintendent of every prison in district prepares list of all

undertrial prisoners and convicts lodged in the prison. DLSA secretary shortlists

eligible cases of undertrials and convicts based on 14 categories of prisoners

mentioned in the NALSA SOP for the prepared list to be considered in the UTRC

meeting. The District and Sessions Judge convenes a meeting of all UTRC

members where the shortlisted cases are considered. UTRC makes

recommendations for release and other actions in the case of eligible individual

prisoners to the concerned Court and stakeholder. Jail Superintendent informs

prisoners about the recommendations made in their cases. In the case of

undertrials, concerned court decides on the recommendations of the UTRC

brought before it in the manner appropriate for the particular case. UTRC keeps a

track on the actions taken on the recommendations. DLSA Secretary collects the

data and prepares a quarterly report on the recommendations and actions taken in

the case is considered by the UTRC.

The periodicity of holding meeting of UTRC was initially fixed to every three thmonths. However, in the 4 December 2018 order in “In Re-inhuman Conditions in

1382 Prisons”, Supreme Court directed the UTRC to meet every month from

January 2019 to June 2019. Later, in March 2020 in the wake of COVID-19 being

Standard Operating Procedure

Review process

JURIS RAY

| 33 |

declared as pandemic, Supreme Court in “In Re:Contagion of COVID-19 Virus in

Prisons” Suo Moto Writ Petition (Civil) No. 1/2020 directed the UTRCs to meet

once a week. The UTRCs are thus required to follow the periodicity as directed

from time to time.

The review of the mandated category of cases is achieved through close co-

ordination among the members of UTRC who have specific role to play by virtue of

their positions in district administration and powers attached to their offices. To

start with, the District and Sessions Judge as the chairperson of UTRC is not only

obliged to convene the UTRC meeting but also ensure that recommendations are

shared with the trial court, Jail Superintendent and Secretary DLSA, and that

follow up on recommendations is done.

The Secretary DLSA works with the aid of Panel lawyers, Para Legal

Volunteers and others, to prepare a list of undertrial prisoners or convicts eligible

for consideration by UTRC. Out of data sent to him in the light of criteria laid down

by Hon'ble Supreme Court in In Re-inhuman Conditions in 1382 Prisons WPC

406/2013 and laid down in NALSA SOP, if any further details are required by the

Secretary DLSA from any Court or from the Jail Superintendent or from the Police

authorities, the same may be ascertained by the secretary DLSA. The secretary

shall then prepare a list of eligible undertrial prisoners for consideration of UTRC

and inform the District and Session Judge requesting him to convene the UTRC

meeting at the earliest. The secretary is required to instruct the panel lawyers to

move applications as required in the UTRC recommendations for legal aid cases,

keep track of the follow up action in recommendations, and collect data on action

taken on recommendations and final outcome.

District Magistrate is the administrative head of the district and

supervisory authority for the entire administration of the district. In relation to

prisons, District Magistrate discharges his powers and duties as mandated by the

Prison Rules and he is also obligated to regularly visit the prison in order to ensure

that conditions are humane and compliance of State Prison Rules are done. He has

general powers to issue orders for the effective working of the prison

administration as executive magistrate as persons are also detained under chapter

VIII of Cr.P.C. i.e. under section 107, 108 and 151 for keeping peace and good

behaviour.

Role of Functionaries

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The Superintendent of Police being the policing head of the district, is

mainly responsible for maintenance of law and order. In addition, the investigation

officers in the police stations work under his authority and are dutybound to file

chargesheet within 60/90/180 days as the case may be. Another important duty is

to ensure the availability of police escorts to ensure that every undertrial reach

Court in a timely manner on the date specified by the court warrant. This requires

co-ordination with the prison authorities and the participation of Superintendent

of Police at UTRC is intended to facilitate this.

The Jail Superintendent is required to prepare separate lists of undertrials st th th st

and convicts detained in prison as on 31 March 30 June 30 September and 31 thDecember in the prescribed format and send the list to DLSA Secretary by 7 April

th th th7 July 7 October and 7 January respectively. After UTRC meetings, the Jail

Superintendent is required to inform the concerned undertrial prisioners and

convict about the recommendations made in their cases.

The extent of access to justice in a society is reflective of the level of its

civilisation. With time, UTRC has emerged as an effective mechanism to enhance

access to justice for prisoners/convicts and also to relieve the prisons from the

perpetual burden of overcrowding. Experience has shown that common zeal to

achieve the underlying objective and proper co-ordination between the

functionaries is key to smooth functioning of UTRC. It is solemn duty of all the

stakeholders to let the ray of hope reach the forgotten lot so that the rights

guaranteed to them by our Constitution does not remain teasing illusion.

Conclusion

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THE JURISPRUDENCE OF CIRCUMSTANTIAL EVIDENCE

“Men may tell lies, but Circumstances do not”.

Evidence may be defined as any written or oral testimony given under-oath,

including documents, records, or physical objects admissible in a court of law,

according to established rules of evidence, either to prove or disprove the existence

or non-existence of alleged facts, claims, or accusations. Depending upon the

source of its origin and probative value, evidence is often classified as positive or

direct evidence or circumstantial or indirect evidence. Section 3 of the Indian

Evidence Act defines evidence as "Evidence" means and includes all statements

which the Court permits or requires to be made before it by witnesses, in relation to

matters of fact under inquiry; such statements are called oral evidence; all

documents including electronic records produced for the inspection of the Court;

such documents are called documentary evidence.

Circumstantial evidence is indirect information or secondary facts that

allow the reasonable inference of the principal fact, without actually proving that

such inference is true. Therefore, circumstantial evidence ideally requires further

corroboration through other forms of evidence to prove a fact. Circumstantial

evidence is also known as indirect evidence. It is distinguished from direct

evidence, which, if believed, proves the existence of a particular fact without any

inference or presumption. Under the Indian Evidence Act, “circumstantial

evidence” is included under the expression “relevant facts” and it is provided that

all “relevant facts” require being proved by some evidence oral or documentary,

that is to say, by direct evidence. Circumstantial evidence, to be relied upon, must

not only point to the inference to be drawn by the court, but it must be of such a

nature that it can possibly lead to no other inference.

INTRODUCTORY REMARKS

JURIS RAY

Saba Alam

Assistant Director (R&T)

Bihar Judicial Academy

| 36 |

THE JURISPRUDENTIAL ASPECT

CIRCUMSTANTIAL EVIDENCE: MEANING AND SCOPE

The ancient theories of criminal jurisprudence postulate the existence of

circumstantial evidence as proof of culpability and there are traces of the same in

ancient criminal legal systems. However the genesis of the existing concept of

circumstantial evidence may be traced back to the prevailing practices in the

English legal system during the eighteenth century. For many generations the

English, who often convicted criminals on the basis of "circumstances," seemed to

have felt somewhat reluctant to do so except in those special crimes where

testimonial evidence was almost certain to be lacking. However the traditional

preference for direct testimonial over circumstantial evidence was seemingly

reversed during the course of the eighteenth century. Circumstantial evidence was

elevated above testimonial evidence on the grounds that witnesses might lie. The

maxims "circumstances cannot lie" and "facts cannot lie" were gaining acceptance

before the jury. This also emanated from the fact that procuring convictions was

rewarded and hence there was great likelihood of seeking false convictions. The

offence of perjury had since then evolved for most part of it. In 1781 Justice Buller

opined that a presumption which necessarily arises from circumstances is very

often more convincing and more satisfactory than any other kind of evidence,

because it is not within the reach and compass of human abilities to invent a train of

circumstances which shall be so connected together as to amount to a proof of guilt,

without affording opportunities of contradicting a great part if not all of these

circumstance. A rather similar position was taken by Edmund Burke. "When

circumstantial proof is in its greatest perfection, that is, when it is most abundant

in circumstances, it is much superior to positive proof."

In India, the term circumstantial evidence was first used by Sir James

Stephen, stating circumstantial evidence to be facts that are relevant to the other

fact, whose existence can be proved by the existence of other fact.

Circumstantial evidence is evidence of relevant facts from which, one can, by

process of intuitive reasoning, infer about the existence of facts in issue or factum

probandum. It is direct evidence of a fact from which a person may reasonably infer

the existence or non existence of another fact. Information pertaining to the said

chain of events in civil or criminal cases establishes the existence of a fact or any

assertion a party seeks to prove.

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Circumstantial evidence consists of an unrelated chain of events which

when put together formulates circumstances leading to the commission of the

crime and can be used to derive a conclusion. It is used to support a theory of a

sequence of events. The sum total of multiple pieces of corroborating evidence,

each piece being circumstantial alone, build an argument to support how a

particular event happened.

An example of circumstantial evidence would be, if police retrieves stolen

goods from the house of a suspect, although it establishes that the suspect has

stolen the good but does not necessarily establish guilty or the fact that he must

have stolen the goods. Recovery of goods in the house of a suspect is a

circumstantial evidence as the goods might be placed there by someone else, thus

not establishing complete guilt but forming a chain of events. This would shift the

burden of proof on the suspect to establish his innocence.

In Dharam Das Wadhwani V. State of Uttar Pradesh (AIR 1975 SC 241), it

was observed by Justice Krishna Iyer; that every evidentiary circumstances is a

probative link, strong or weak, and must be made out with certainty. Link after link

forged firmly by credible testimony may form a strong chain of sure guilt binding

the accused. Each link taken separately may just suggest but when hooked on to

the next and on again may manacle the accused inescapably. Only then can a

concatenation of incriminating facts suffice to convict a man. Short of that is

insufficient. The rule of reasonable benefit of doubt does not imply a frail willow

bending to very whiff of hesitancy. Judges are made of sterner stuff and must take a

practical view of legitimate inferences flowing from evidences circumstantial or

direct. Common examples of circumstantial evidence include; Evidence that

establishes a motive; Evidence of an opportunity to commit the offence ;Evidence of

the accused's state of mind when the offence was committed; Evidence of the

accused preparing for the crime; Evidence of the accused having items that could

be used to commit the offence; Evidence of identification, for example, the

accused's DNA, fingerprints or mobile phone records;Evidence that the accused

committed similar crimes around the same time the alleged offence was

committed; Evidence of the accused giving different versions of events. Examples

of circumstantial evidence in theft cases include; Evidence of the accused's

fingerprints at the scene of the crime; The fact that the accused was found with a

large amount of money and was unable to explain why they had it. Examples of

circumstantial evidence in murder cases include; The fact that the accused had an

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intense dislike of the victim; The fact that the accused behaved in a bizarre and

suspicious way after the offence; the fact that the accused lied about their alibi; the

fact that the accused was in the area when the offence was committed; the fact that

the defendant's blood or DNA matches blood or DNA found on the victim's body.

Abnormal conduct of accused: Conduct of the accused plays a vital role in

corroborating or establishing circumstantial evidence. Conduct of the accused

which is unnatural and abnormal, such as absconding, inability to provide

explanation, inability to disclose location during the commission of offence,

providing false alibis, secretive cremation of death body, which destroys the

presumption of innocence is a relevant factor in establishing guilt and building the

chain of events.

The concept of circumstantial evidence has evolved through the interplay

between statutes and judicial interpretation. The law draws no distinction between

circumstantial evidence and direct evidence in terms of weight or importance.

Either type of evidence may be enough to establish guilt beyond a reasonable

doubt, depending on the facts of the case. It is a misconception that the

circumstantial evidence are less relevant and carry less weight than direct

evidences. Any piece of evidence, whether direct or circumstantial, must be

evaluated in terms of whether the source of the evidence is reliable.

In the case of Holland v. United States, (1954, 348 U.S. 121); the US

Supreme Court concluded, that fundamentally there is no intrinsic difference

between direct evidence and circumstantial evidence.

The fundamental difference between direct and circumstantial evidence is

that Direct evidence does not require any reasoning or inference to arrive at the

conclusion to be drawn from the evidence. Circumstantial evidence, also called

indirect evidence, requires that an inference be made between the evidence and

the conclusion to be drawn from it. Both the direct and circumstantial evidence are

equally significant in establishing criminal intent as well as the criminal act.

Circumstantial Evidence could not be fabricated easily and that is an advantage

over direct evidence. Circumstantial evidence ordinarily means effect from which

some other fact is inferred whereas direct evidence means testimony given by a

person as to what he has himself perceived by his own sensors. Direct evidence

DIRECT VERSUS CIRCUMSTANTIAL EVIDENCE

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means direct assertion where as circumstantial evidence means effect on which an

inference is to be founded. Direct evidence of witnesses should not be brushed

aside in the light of any circumstances, unless the existence of the fact in issue is

inconsistent with or rendered improbable in proof of the existence of the

circumstance. While there are certainly differences between direct and

circumstantial evidence, reliability is not necessarily one of them.

A person's guilt of a charged crime may be proved by circumstantial

evidence, if that evidence, while not directly establishing guilt, gives rise to an

inference of guilt beyond a reasonable doubt. Convictions if based on

circumstantial evidence require an unbreakable link between the criminal and the

crime.

In dealing with circumstantial evidence there is always a danger that

conjecture or suspicion lingering on mind may take place of proof. Suspicion,

however, strong cannot be allowed to take place of proof and, therefore, the Court

has to be watchful and ensure that conjectures and suspicions do not take place of

legal proof. The onus is on the prosecution to prove that the chain is complete and

the infirmity of lacuna in prosecution cannot be cured by false defence or plea as

there is always a danger that in cases depending squarely on circumstantial

evidence; conjecture or suspicion may take the place of legal proof.

The most fundamental and basic decision on this is Hanumant v. State of

Madhya Pradesh[AIR 1952 SC 343]. This case has been uniformly followed and

applied by this Court in a large number of later decisions up-to date, for instance,

the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh[(1969) 3 SCC 198

Ramgopal v. State of Maharashtra[(1972) 4 SCC 625 :It may be useful to extract

what Mahajan, J. has laid down in Hanumant case [AIR 1952 SC 343] :

"It is well to remember that in cases where the evidence is of a circumstantial

nature, the circumstances from which the conclusion of guilt is to be drawn should in

the first instance be fully established, and all the facts so established should be

consistent only with the hypothesis of the guilt of the accused. Again, the

circumstances should be of a conclusive nature and tendency and they should be such

as to exclude every hypothesis but the one proposed to be proved. In other words, there

must be a chain of evidence so far complete as not to leave any reasonable ground for a

NATURE OF PROOF :

JURIS RAY

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conclusion consistent with the innocence of the accused and it must be such as to

show that within all human probability the act must have been done by the accused."

There is not only a grammatical but a legal distinction between "may be

proved" and "must be or should be proved" as was held by the Supreme

Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC

793] where the following observations were made:"Certainly, it is a primary

principle that the accused must be and not merely may be guilty before a court

can convict and the mental distance between 'may be' and 'must be' is long

and divides vague conjectures from sure conclusions."

In the case of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4

SCC 116 the court laid down the five golden principles of Circumstantial

Evidences i.e

?The circumstances from where conclusion of guilt is to be drawn ought to be

established. The circumstances involved must or should and not may be

established.

?The facts, therefore, established ought to be as per the hypothesis of the

guilt of the accused.

?Circumstances ought to be conclusive in nature and tendency.

?They ought to exclude each attainable hypothesis except the one to be

tested.

?There should be a complete sequence of proof so as to not leave

any affordable ground for the conclusion in line with the innocence of the

defendant and should show that the act must have been done by the

defendant.

The analysis of circumstantial evidence requires that inference

supporting conclusion other than guilt be based on evidence rather than

upon lack of evidence. In G. Parshwanath v. State of Karnataka AIR 2010 SC 2914

210, it was observedthat, in cases where evidence is of a circumstantial

nature, the circumstances from which the conclusion of guilt is to be drawn should,

in the first instance, be fully established. Each fact sought to be relied upon must

be proved individually. However, in applying this principle a distinction must be

JURIS RAY

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made between facts called primary or basic on the one hand and inference of facts

to be drawn from them on the other. In regard to proof of primary facts, the court

has to judge the evidence and decide whether that evidence proves a particular fact

and if that fact is proved, the question whether that fact leads to an inference of

guilt of the accused person should be considered. In dealing with this aspect of the

problem, the doctrine of benefit of doubt applies. Although there should not be any

missing links in the case, yet it is not essential that each of the links must appear on

the surface of the evidence adduced and some of these links may have to be

inferred from the proved facts. In drawing these inferences, the court must have

regard to the common course of natural events and to human conduct and their

relations to the facts of the particular case. The Court thereafter has to consider the

effect of proved facts. In deciding the sufficiency of the circumstantial evidence for

the purpose of conviction, the court has to consider the total cumulative effect of all

the proved facts, each one of which reinforces the conclusion of guilt and if the

combined effect of all these facts taken together is conclusive in establishing the

guilt of the accused, the conviction would be justified even though it may be that

one or more of these facts by itself or themselves is/are not decisive. The facts

established should be consistent only with the hypothesis of the guilt of the

accused and should exclude every hypothesis except the one sought to be proved.

But this does not mean that before the prosecution can succeed in a case resting

upon circumstantial evidence alone, it must exclude each and every hypothesis

suggested by the accused, howsoever, extravagant and fanciful it might be.

The nature, character and essential proof required in a criminal case which

rests on circumstantial evidence alone, as derived from various judgements, may

thus be summarised as follows:

(1) The circumstances from which the conclusion of guilt is to be drawn should

be fully established.

(2) The facts so established should be consistent only with the hypothesis of

the guilt of the accused, that is to say, they should not be explainable on any

other hypothesis except that the accused is guilty

(3) The circumstances should be of a conclusive nature and tendency

(4) They should exclude every possible hypothesis except the one to be proved

and

JURIS RAY

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(5) There must be a chain of evidence so complete as not to leave any reasonable

ground for the conclusion consistent with the innocence of the accused and

must show that in all human probability the act must have been done by the

accused. (Paramjeet Singh v. State of Uttarakhand AIR 2011 SC 200)

(6) It is true that there should be no missing links, in the chain of events so far

as the prosecution is concerned, but it is not that every one of the links must

appear on the surface of the evidence, since some of these links may only be

inferred from the proven facts. (Pawan Kuar v. State of Haryana, 2001 (3)

SCC 628) A false plea of alibi could be an important linkbut it can not be the

sole link or sole circumstance on which a conviction could be passed.

(Babudas v. State of M.P. 2003 Cri.L.J. 2536)

(7) Circumstances of strong suspicion without, however, any conclusive

evidence are not sufficient to justify the conviction and it is on this score that

great care must be taken in evaluating the circumstantial evidence.

It is true that in a case relating to circumstantial evidence motive does

assume great importance, but to say that the absence of motive would dislodge the

entire prosecution story is perhaps giving this one factor an importance which is

not due and (to use the cliche) the motive is in the mind of the accused and can

seldom be fathomed with any degree of accuracy. If motive is proved that would

supply a link in the chain of circumstantial evidence but the absence thereof cannot

be a ground to reject the prosecution case. The absence of motive, however, puts the

court on its guard to scrutinize the circumstances more carefully to ensure that

suspicion and conjecture do not take place of legal proof. In State (Delhi

Administration) V. Gulzarilal Tandon AIR 1975 SC 1382, it was observed that in

ases where the case of the prosecution rests purely on circumstantial evidence,

motive undoubtedly plays an important part in order to tilt the scale against the

accused. In Arjun Marik v. State of Bihar reported as 1994 Supp (2) SCC 372, The

Hon'ble Supreme Court was pleased to hold as under:

".........mere absence of proof of motive for commission of a crime cannot be a

ground to presume the innocence of an accused if the involvement of the accused is

otherwise established. But it has to be remembered that in incidents in which the only

evidence available is circumstantial evidence then in that event the motive does

THE IMPORTANCE OF MOTIVE :

JURIS RAY

| 43 |

assume importance if it is established from the evidence on record that the accused

had a strong motive and also an opportunity to commit the crime and the established

circumstances along with the explanation of the accused, if any, exclude the

reasonable possibility of anyone else being the perpetrator of the crime then the chain

of evidence may be considered to show that within all human probability the crime

must have been committed by the accused."

Reiterating the above principle the Delhi High Court in Ram Badan Yadav @

Madan vs State on 10 December, 2019 observed that In a case of circumstantial

evidence, where the other circumstances have not been cogently and conclusively

proved by the prosecution, the motive for the commission of crime is a critical link

and it therefore becomes incumbent on the prosecution to prove the same whout a

shadow of doubt, if it has to show that the complete chain of circumstances points

unmistakably to the guilt of the accused.

Section 106 Evidence Act postulates that when a fact is with in the

knowledge of a person, the burden is upon him to establish his innocence. section

deals with sifting the onus of proving a particular fact on the accused when that

particular fact is especially within his knowledge. This section is only applicable

when the prosecution has proved the prima facie case against the accused. Hence,

it is clear that the section is just an exception section 101 of the Evidence Act and

its applicability does not extend into taking off the legal burden from the shoulder

of e prosecution. Hence the burden which is being talked about in this section is

the evidential burden the onus of proving which can be shifted to the accused.

Thus, if a person is last seen with the deceased, he must offer an explanation as to

how and when he parted company. He must furnish an explanation which appears

to the Court to be probable and satisfactory. If he does so he must be held to have

discharged his burden. If he fails to offer an explanation on the basis of facts within

his special knowledge, he fails to discharge the burden cast upon him by Section

106 of the Evidence Act. In a case resting on circumstantial evidence if the accused

fails to offer a reasonable explanation in discharge of the burden placed on him,

that itself provides an additional link in the chain of circumstances proved against

him. Section 106 does not shift the burden of proof in a criminal trial, which is

always upon the prosecution. It lays down the rule that when the accused does not

SECTION 106 INDIAN EVIDENCE ACT AND CIRCUMSTANTIAL EVIDENCE

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throw any light upon facts which is specially within his knowledge and which could

not support any theory or hypothesis compatible with his innocence, the Court can

consider his failure to adduce any explanation, as an additional link which

completes the chain. The principle has been succinctly stated in Re. Naina

Mohammed V. Unknown AIR 1960 Madras, 218.

Body of B was found in the house of A. The onus is upon A to establish

that even though body of the deceased was recovered from his house, his

involvement in the crime is negligible. The inmates of the house are also required

to provide an explanation. If the defendant fails to provide a viable explanation and

fails to establish his innocence, this would form a chain of circumstantial evidence

establishing the guilt of the accused. In the case of dowry death, the evidence

provided by the victim' family was considered reliable forming a chain of

circumstances leading to the murder. Further, the body of the deceased was found

in the river which was within the knowledge of the accused. Since the accused

failed to establish his innocence as per Section 106, he was convicted under

302/149, 498-A, 201 IPC. The Honourable Supreme Court in Collector of Customs

vs. D. Bhoormall 1974 (2) SCC 544) considered this question with respect to an

offence under Sections 167 and 178 A of Sea Customs Act and held;

"on the principle underlying Section 106, Evidence Act, the burden to establish those

facts is cast on the person concerned and if he fails to establish or explain those facts,

an adverse inference of fact may arise against him, which coupled with the

presumptive evidence adduced by the prosecution or the Department would rebut the

initial presumption of innocence in favour of that person and in the result, prove him

guilty"

That principles were followed in Balram Prasad Agrawal vs. State of Bihar 1997 (9)

SCC 338). Also the Honourable Supreme Court in State of West Bengal vs. Mir

Mohd.Omar 2000 (8) SCC 382), analysing Section 106 of Indian Evidence Act held

that the pristine rule that the burden of proof is on the prosecution to prove the

guilt of the accused should not be taken as a fossilised doctrine as though it admits

no process of intelligent reasoning.

In Shambhu Nath Mehra v. State of Ajmer AIR 1956 SC 404 it was held that

Section 106 is not a substitute for the burden of proof that rests upon the

prosecution. Honourable Supreme Court in Trimukh Maroti Kirkan v. State of

Illustration–

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Maharashtra 2006(10) SCC 681), considered the failure of the accused to offer any

explanation or the effect of an explanation which is found to be untrue and held;

"In a case based on circumstantial evidence where no eyewitness account is

available, there is another principle of law which must be kept in mind. The

principle is that when an incriminating circumstance is put to the accused and the

said accused either offers no explanation or offers an explanation which is found to

be untrue, then the same becomes an additional link in the chain of circumstances

to make it complete." This view has been taken in a catena of decisions of Apex

Court (State of T.N. v. Rajendran 1999(8) SCC 679) State of U.P v. Dr.Ravindra

Prakadh Mittal (1992 (3) SCC 300); State of Maharashtra v. Suresh (2000 (1) SCC

471 para) Ganesh Lal . State of Rajasthan (2002 (1) SCC 731 para 15) and Gulab

Chand v. State of M.P. (1995 (3) SCC 574 para 4).

In the celebrated case of Nupur Talwar and others v. State of U.P. And others

Criminal appeal 474 of 2012 it was observed that Section 106 of the Evidence Act

has to be read in conjunction with and not in derogation of Section 101 Evidence

Act. Section 106 of the Indian Evidence Act, does not relieve prosecution of it's

primary and foremost duty to establish the guilt of the accused beyond all

reasonable doubts independent of weaknesses of the defence. It is only when

prosecution, for well perceptible and acceptable reasons, is unable to lead evidence

because of circumstances beyond it's control including the reason that the fact

required to be proved was within the special knowledge of an accused alone and

prosecution could not have known it by due care and diligence, that Section 106 can

be resorted to by shifting burden on the accused to divulge that fact which is in his

special knowledge and accused fails to offer any reasonable explanation to satiate

judicial inquisitive scrutiny, he is liable to be punished. Section 106 of Act, is not

meant to be utilized to make up for the prosecution's inability to establish its case

by leading, cogent and reliable evidence.

Their Lordships of the Hon'ble Supreme Court in State of Rajasthan Vs.

Thakur Singh (2014) 12 SCC 211 have held that in a case of unnatural death of wife

of accused in a room occupied only by both of them, when there was no evidenceof

anybody else entering the room and the accused has not explained the

circumstances about unnatural death of his wife, the principle under section 106 of

the Evidence Act was clearly applicable.

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CIRCUMSTANTIAL EVIDENCE:

WHETHER SOLE BASIS OF CONVICTION

Circumstantial evidence can be sole basis for a conviction, if circumstances

establish the chain of events leading to the guilt of the accused and commission of

the crime without other possibilities. The Court should be satisfied that the said

circumstances were clearly established and complete the chain of events and prove

the guilt of the accused beyond reasonable doubt. Moreover, all the circumstances

should indicate towards the guilt of the accused and should be inconsistent with

his innocence. It is of utmost importance that the chain of events or circumstances

should be complete without gaps to the extent that no other conclusion or inference

apart from the guilt of the accused can be drawn.

In the case of Ashok Kumar v. State of Madhya Pradesh, AIR 1989 SC 1890

the Supreme Court held that for circumstantial evidence to sustain conviction, the

chain of events should be complete and should establish the guilt of the accused

without probability of any other alternative. Further, the evidence should be

cogently and firmly established.

In the case of Bodh Raj v. State of Jammu & Kashmir 2002 (8) SCC 45, the

Court reiterating the principles laid down in Sharad Birdichand case, held that for

a conviction to be solely based on circumstantial evidence following conditions are

required to be met:

• Circumstances from which guilt is established are required to be

proved and impenetrable

• Circumstances should be conclusive in nature and should form a link

between the criminal and commission of the offence

• Crcumstances should retain moral certainty and there should be no

scope for any other hypothesis.

• All other hypothesis should be excluded except the one that is

required to be proved

In Sidhartha Vashisht @ Manu Sharma v. State (Nct Of Delhi), 2010

(69) CC 833 (SC) popularly known as Jessica Lal Murder Case the Apex

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Court upheld the judgment of the Delhi High Court and the Bench

comprising P. Sathasivam, J., and B. Swatanter Kumar, J., held that the

presence of the accused at the scene of the crime had been proved through

the ocular testimonies of several witnesses. The circumstantial evidence

connecting the vehicles and cartridges used at the site of the crime to Manu

Sharma as well as his conduct after the incident (he first absconded but

surrendered later) proved his guilt beyond reasonable doubt.

In the case of Nizam V. State of Rajasthan, (2016) 1 SCC 550, Hon'ble

Supreme Court, inter alia held that in a case based on circumstantial evidence

settled law is that the circumstances from which the conclusion of guilt is drawn

should be fully proved and such circumstances must be conclusive in nature.

Moreover, all the circumstances should be complete, forming a chain and there

should be no gap left in the chain of evidence Further, the proved circumstances

must be consistent only with the hypothesis of the guilt of the accused and totally

inconsistent with his innocence.(Para 8)

In the case of Ganpat Singh v.State of Madhya Pradesh, (2017) 16 SCC 353,

the Hon'ble Court has held as hereunder:

In a case which rests on circumstantial evidence the law postulates a two

fold requirement. First, every link in the chain of circumstances necessary to

establish the guilt of the accused must be established by the prosecution beyond

reasonable doubt. second, all the circumstances must be consistent only with the

guilt of the accused. The principle has been consistently formulated thus:

"The normal principle in a case based on circumstantial evidence is that the

circumstances from which an inference of guilt is sought to be drawn must

cogently and firmly establish that those circumstances should be of a

definite tendency unerringly pointing towards the guilt of the accused that

the circumstances taken cumulatively should form a chain so complete that

there is no escape from the conclusion that within all human probability the

crime was committed by the accused and they should be incapable of

explanation on any hypothesis other than that of the guilt of the accused and

inconsistent with his innocence."

In the case of Navneethakrishnan v.State by Inspector of Police 2018) 16

SCC 161, Hon'ble Supreme Court, inter alia held that the last seen theory is very

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important even in the chain of circumstances to establish the guilt of the accused,

but it all alone is not sufficient to prove the guilt and it requires corroboration.

?The Court stated that each and every incriminating circumstance must be

clearly established by reliable and clinching evidence and the

circumstances so proved must form a chain of events rom which the only

irresistible conclusion about the guilt of the accused can be safely drawn and

no other hypothesis against the guilt is possible.

?That in a case depending largely upon circumstantial evidence, there is

always a danger that conjecture or suspicion may take the place of legal

proof. The court must satisfy itself that various circumstances in the chain of

events must be such as to rule out a reasonable likelihood of the innocence of

the accused.

?That when the important link goes, the chain of circumstances gets snapped

and the other circumstances cannot, in any manner, establish the guilt of the

accused beyond all reasonable doubt.

?That the Court has to be watchful and avoid the danger of allowing the

suspicion to take the place of legal proof for sometimes, unconsciously it may

happen to be a short step between moral certainty and legal proof.

?That there is a long mental distance between may be true and must be true

and the same divides conjectures from sure conclusions. The Court must be

mindful of cautions settled by the principles of law and the decisions

rendered by that where the prosecution rests on the circumstantial

evidence, the prosecution must place and prove all the necessary

circumstances, which would constitute a complete chain without a snap and

pointing to the hypothesis that except the accused, no one had committed

the offence, which in the present case, the prosecution has failed to prove.

In the case of Devi Lal [2019 (1) N.C.C. 541] Hon'ble Supreme Court has

held that while scrutinizing the circumstantial evidence a Court has to evaluate it

to ensure the chain of events is established clearly and completely to rule out any

reasonable likelihood of innocence of the accused. In this case, the Hon'ble

Supreme Court referred to the principle of law as laid down in the case of Sharad

Birdhichand Sarda. State of Maharashtra (1984) 4 SCC 116, Sujit Biswas v. State

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of Assam (2013) 12 SCC 406 and Raja alias Rajinder V. State of Haryana (2015) 11

SCC 43.

In State of Uttrakhand v. Jai Prakash 2020 SCC Online Utt 10 the SC

upholding the conviction of the accused once again reiterated the principles on

which circumstantial evidence can form the basis of conviction. The brief facts of

the case were as follows the victim's parents, were labourers, who were residing in

the makeshift huts at the construction site. She was nine years old. Her uncle, aunt

and their two sons were also staying near to their hut. On the fateful day, victim was

playing with her cousins. Suddenly, she went missing. A search was made and

finally her dead body was recovered from the hut of the appellant. It was hidden

below the empty sacks and other articles A report was lodged and after

investigating charge-sheet was submitted against the appellant. Upon trial, the

appellant was convicted and sentenced to death. The prosecution enumerated the

complete chain of events leading to the recovery of the dead body of the victim in

the hut of the appellant and also established by way of ocular evidence that the

victim was last seen with the appellant accused and that it was the appellant

accused who had sexually exploited the minor victim and eventually he was

convicted by the trial court and sentenced to death. Upholding the conviction and

sentence, the SC categorical dealt with each and every circumstance as laid down

by oral and documentary evidence including expert opinion and observed that all

the circumstances unerringly and irresistibly concludes that it is the appellant,

who brutally sexually assaulted the victim and killed her and concealed her dead

body so as to disappear the evidence of the victim.

The Supreme Court of Canada In R.v. Villaroman, 2016 SCC 33, [2016] 1

S.C.R. 1000 held that in assessing circumstantial evidence, inferences consistent

with innocence do not have to arise from proven facts. The issue with respect to

circumstantial evidence is the range of reasonable inferences that can be drawn

from it. If there are reasonable inferences other than guilt, the Crown' evidence

does not meet the proof beyond the reasonable doubt standard. A certain gap in the

evidence may result in inferences other than guilt. But those inferences must be

reasonable given the evidence and the absence of evidence, assessed logically, and

in light of human experience a common sense. When assessing circumstantial

evidence, the trier of fact should consider other plausible theories and other

reasonable possibilities which are inconsistent with guilt. The Crown thus may

need to negative these reasonable possibilities, but certainly does not need to

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disprove every possible conjecture which might be consistent with innocence.

Other plausible theories or other reasonable possibilities must be based on logic

and experience applied to the evidence or the absence of evidence, not on

speculation.

The last seen theory comes into play where the time gap between the point of time

when the accused and deceased were last seen alive and when the deceased is

found dead is so small that possibility of any person other than the accused being

the author of the crime becomes impossible. There must be proximity of time and

place.

However circumstances leading to last seen together does not necessarily

imply that it was the accused who has committed the crime. If the circumstances

are limited to just ast seen together without further corroboration, conviction

cannot be based on the said assertion. The doctrine of last seen together shifts the

onus onto the accused to establish his innocence. Thus, last seen together is not a

conclusive proof establishing guilt, it is imperative to look at surrounding

circumstances such as victim relationship, history of hostility, weapon recovery,

relationship between the victim and the accused among others. The proximity

between the time of death and last seen together is essential to conclude that the

accused and deceased were last seen together without the probability of other

persons coming in between exists. The legal position in this regard has been

explained by the Supreme Court in State of U.P. v. Satish (2005) 3 SCC 114, as

under:

"The last seen theory comes into play where the time-gap between the point

of time when the accused and the deceased were seen last alive and when the

deceased is found dead is so small that possibility of any person other than the

accused being the author of the crime becomes impossible. It would be difficult in

some cases to positively establish that the deceased was last seen with the accused

when there is a long gap and possibility of other persons coming in between exists.

In the absence of any other positive evidence to conclude that the accused and the

deceased were last seen together, it would be hazardous to come to a conclusion of

guilt in those cases.

THE THEORY OF LAST SEEN

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In State of Karnataka V. Chand Basha (2015) 3 ACR 3439, the Supreme

Court explained: "This Court has time and again laid down the ingredients to be

made out by the prosecution to prove the „last seen together? theory. The Court for

the purpose of arriving at a finding as to whether the said offence has been

committed or not, may take into consideration the circumstantial evidence.

However, while doing so, it must be borne in mind that close proximity between the

last seen evidence and death should be clearly established."

The Delhi High Court in Ram Badan Yadav @ Madan vs State Cri.A.52/2019 has

held that in case of circumstantial evidence the paramount requirement is that,

every possible link in the chain should be complete, alongwith with other

incriminating circumstances including motive and recovery of weapon of offence,

and not exclusively on basis of last seen testimony alone.

The circumstantial evidence is also the result of human testimony and

subject to the same for liberty of assertion as direct evidence, still the danger of

false testimony is considerably less in the case of former class of evidence. The

significance of circumstantial evidence in criminal trials cannot be denied merely

because they do not constitute direct evidence of fact in issue or relevant fact. Every

fact need not necessarily be proved by direct evidence. It is sufficient that the

evidence adduced is of a clear and convincing nature. However it comes with a

caution that not all circumstances are conclusive proofs and that circumstantial

evidence in order to be conclusive must pass the pristine theory of chain of events

being complete and in consonance with the hypothesis of guilt of the accused.

CONCLUSION

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SCOPE AND EXTENT OF POWER U/S.319 Cr. P. C AS PER APEX COURT IN HARDEEP

SINGH'S CASE (2014)3 SCC 92.

Article 20 and 21 of the constitution of India has provided a protective

umbrella for smooth functioning of Administration of Justice. Accordingly,

provisions have been made for courts to ensure fair trial so that the accused does

not get prejudiced and at the same time also gives equal protection to victims and

society by ensuring that the guilty does not get away from the clutches of law.

Section 319 Cr. P. C springs out of the doctrine “Judex damnatur cum nocens

absolvitur” (Judge is condemned when guilty is acquitted). This doctrine should

be used as beacon light while examining the ambit & spirit underlying 319 Cr. P. C.

The court is sole repository of justice and a duty is cast upon it to uphold the rule of

law and, therefore, it will be inappropriate to deny the existence of such power with

courts in criminal justice where it is not uncommon that the accused, at times, get

away by manipulating the investigating agency since desire to avoid trial is so

strong. It is the duty of the court to do justice by punishing the real culprit. Where

the investigating agency, for any reason, does not array one of the real culprit, the

court is not powerless to call such person to face trial. The question remain- under

what circumstances and at what stage court should exercise such power u/s. 319

Cr. P. C.

Section 319 Cr. P. C is an enabling section which empowers court and court

only, not on any officer who is not functioning as court. It can be exercised suo-moto

or upon application by someone. With regard to exercise of power u/s. 319 Cr. P. C.,

different and conflicting views have been expressed by different benches of Apex

court & several high courts. The two Judge bench of Apex court in Hardeep Singh V

State of Punjab noticed the conflicting views expressed in Rakesh V St. of Haryana

(AIR 2001 SC 2521) & Md. Rafique (AIR 2007 SC 1899). In Rakesh case was that

evidence in examination- in chief is sufficient to enable the court to form an opinion

whether to exercise power u/s. 319 Cr. P. C. whereas in shafi case it was held that

Anil Kumar Srivastava

Dist. – Judge (Retd.)

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court should wait till cross- examination and satisfaction for adding accused

should be such that in all likelihood would be convicted. Noticing above conflicting

view, matter was referred for consideration by a larger bench on 07.11.2008 with

forming question that what should be the stage for invoking power? Whether only

on completion of cross –examination? What is the test and guideline for invoking

the power? Whether only if court is satisfied that in all likelihood would be

convicted? The matter came for consideration before a three- judge bench but the

bench noticed that the three- judge bench of this court has already referred the

matter to a five – judge Constitutional bench in Dharmpal's case (2004) 13 SCC 9,

which involved identical & overlapping issues. Noticing this, the present bench

also referred this on 08.12.2011, for being considered by a bench of similar

strength.

Before Hardeep singh's case the case of Dharmpal Singh got answered by

five – judge constitutional bench ( AIR 2013 SC 3018), that the session court upon

committal, with the aid of sec. 193 Cr. P. C. Can array and summon any other

accused person to face trial on the basis of material available on record i.e.

materials collected by investigating agency if complicity of that other appears in

commission of crime, without waiting till the stage of evidence where services of

sec.319 Cr. P.C could be pressed. The issues involved in the case was power of

session court on committal and procedural delay.

The five- judge constitutional bench in Hardeep Singh case, for the purpose

of providing guidelines and answers with respect to all possible aspect of exercise

of power u/s. 319 Cr. P. C., framed following five questions whose answers will

provide solutions while exercising power u/s. 319 Cr. P. C. :-

(i) What is the stage at which power u/s. 319 Cr. P.C. can be exercised?

(ii) Does the word “ evidence “ in sec. 319 Cr. P. C. means as arising in

examination- in –chief or also together with cross – examination?

(iii) Whether the word “evidence” used in sec. 319 Cr. P. C. has been used

in a comprehensive sense and includes the evidence collected during

investigation or the word “evidence” is limited to the evidence

recorded during trial?

(iv) What is the degree of satisfaction required for invoking the power

u/s.319 Cr. P.C.?

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(v) In what situations can the power under this section be exercised: Not

named in FIR; Named in the FIR but not charge sheeted or has been

discharged?

st While examining the answer of 1 question, the Apex court considered

several decisions of Apex court as well as of High courts but following four decisions

need to be mentioned for appreciating the answers given by the apex court. These

four decisions were also considered in Dharmpal's case:-

In Raghubans Dubey V State State of Bihar, AIR 1967 SC 1167, the court

held- “Once cognizance has been taken by the Magistrate, he takes cognizance of

the offence and not the offenders, once he takes cognizance of the offence it is his

duty to find out who the offenders really are and once he comes to conclusion that

apart from the persons sent up by the police some other persons are also involved, it

his duty to proceed against those persons. The summoning of additional accused is

part of the proceeding initiated by taking cognizance of an offence. This decision

was reaffirmed in Hareram Sathpathy V Tikrama Agrawala, (1978)4 SCC 58, after

coming in- force of new Cr. P.C. in 1973, holding that the position has changed even

after the enactment of new Cr.P.C.

In Kishun singh Vs. State of Bihar (1993) 2 SCC 16, the Apex court held the

view that the power u/s. 319 Cr. P.C. can be exercised only at the stage of inquiry

into or trial of an offence and the stages at 207, 208 & 209 Cr. P.C. ( committal by

Magistrate ) are neither inquiry nor trial as no application of Judicial of mind is

there but upon committal the session court acquires original jurisdiction of taking

cognizance u/s 193 Cr. P. C. and can array & summon any other person whose

involvement appears from the materials on record and need not wait till the stage

u/s. 319 Cr. P.C. is reached.

In Ranjit Singh Vs. State of Punjab AIR 1998 SC3148, the Apex ruled that

from the stage of committal till the session court reaches the stage indicted in

section 230 Cr. P. C., court can deal with only those accused persons referred to in

sec.209 Cr. P.C. and there is no intermediary stage till then for session court to

array as accused any other person.

In Raj Kishore Prasad vs. state of Bihar AIR 1996 SC1931, held the view

that power u/s. 319 Cr. P.C. operates only at ongoing inquiry or trial of an offence

and at the stage of 209 Cr. P.C. the court is neither at inquiry nor at trial and also

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while ensuring compliance of 207,208 Cr. P. C. the court is neither at inquiry nor at

trial because no application of judicial mind is there and the court makes the case

ready for hearing by session court. Upon committal as soon as the prosecutor is

present before court and court hears the parties on framing of charge or discharge,

trial is said to have commenced and there is no intermediary stage for session court

between committal and framing of charge.

The Apex court in Dharmpal's case noticed the conflict in decisions of

kishun Singh and Ranjit Singh and referred the matter to constitution bench

However, while referring the matter, affirmed the view of kishun singh case and

doubted the correctness of judgment in Ranjit singh case. The court in Dharmpal's

case held that the effect of Ranjit Singh would be that in less serious offences

triable by Magistrate, court would have power to proceed against those mentioned

in col.2 of charge sheet, if on the basis of materials the magistrate disagrees with

the conclusion reached by police, but, as far as offences triable by court of session

are concerned, court will have to wait till the stage of 319 Cr. P.C. is reached.

The present bench explained that the issue being considered in Dharmpal's

case was the exercise of such power at the stage of committal of a case and the court

held that even if sec. 319 Cr.P. C. could not be invoked at that stage, section 193 Cr.

P. C. could be invoked for the said purpose. The procedural delay was also a concern

which was considered while giving the above answer. The bench also clarified that

upon committal by Magistrate. the session court u/s. 193 Cr. P. C. acquires the

original jurisdiction of taking cognizance and can summon any other person on the

basis of materials on record. Since the position that power u/s. 319 Cr. P. C. can be

exercised during inquiry or trial of offence--- has not been disturbed in Dharmpal'

case, there is no conflict, the bench agrees with Dharmpal's view and find no

occasion to delve in the answer given.

From the above three decision of kishun Singh, Ranjit Singh & Rajkishore

Prasad, it is clear that there is no conflict in the position that power u/s. 319 Cr.

P.C. can be exercised only at the stage of inquiry or trial. There is also no conflict

that the stage u/s. 207, 208 & 209 Cr. P. C. are neither inquiry nor trial but only a

pre-trial stage where no judicial application of mind is required except setting the

process in motion. The conclusion is that the aforesaid power cannot be exercised

at the stage of 207,208 &209 Cr. P. C. The provision of 319 Cr. P. C. also permits the

exercise of power only at the of inquiry into or trial of an offence and not at any other

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stage of proceeding including the pre- trial stages u/s. 207, 208 and 209 Cr. P. C.

(committal by Magistrate).

The provision 319 Cr. P.C. says “where in course of inquiry into or trial of an

offence….” Question arises, When inquiry and trial is said to have commenced? As

per sec.2 (g) Cr. P. C., Inquiry means every inquiry other than trial conducted under

this code by Magistrate or court. It is clear from above definition that inquiry by

court is some act done by court before trial commences. It is also clear that inquiry

by investigating agency during investigation is also not inquiry by court, but is an

inquiry after the case is brought to the notice of court by filling charge sheet and

other materials. The courts can thereafter apply its mind for proceeding with the

case and inquiry by court is said to have commenced. This is the reason inquiry

means something other than trial. Now when trial commences? The trial is distinct

from inquiry and must succeed inquiry. The inquiry is forerunner of trial. The view

that trial commences with taking cognizance and proceeding to conduct trial- was

not approved by this bench and it was held that trial means determination of issues

adjudging the guilt or innocence of a person, the person has to be aware of what is

the case against him and it is only at the stage of framing charge that court informs

him of same, the trial commences only on charge being framed. The word “course”

indicates a continuous progress from one point to next in time and conveys a period

of time. The section clearly indicates that the power can be exercised only during

the period inquiry has commenced and is going on trial has commenced and is

going on. It covers the entire range of the process of pre- trial and trial stage. The

word “course” therefore allows court to invoke this power against any person from

the initial stage of inquiry unto the conclusion of trial. The court does not become

functus officio even if cognizance is taken so far it is looking into the materials qua

any other person who is not an accused. Thus the conclusion is that the power u/s.

319 Cr. P.C. can be exercised at any time from filling of charge sheet in court and

before pronouncement of judgment except the stage of 207,208 and 209 which are

neither inquiry nor trial. This answers question no. (1).

Now a very important question arises that what should be the material or evidence

on the basis of which aforesaid power has to be exercised? What meaning, the word

“evidence” used in the provision, conveys? The answer to above also answers the

question no (iii) As per Tomlin's Law Dictionary “evidence is the means from which

an inference may logically be drawn as to existence of a fact. It consists of proof by

testimony of witnesses, on oath; or by writing or records” Evidence produces in

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mind a persuation concerning the existence of some other matter of fact, a

persuation either affirmative of disaffirmative of its existence. As per section 3 of

Evidence Act, “evidence” means and includes:

(1) All statements which the court permits or requires to be made before

it by witnesses in relation to matters of fact under inquiry; such

statements are called oral evidence;

(2) All documents including electronic records produced for inspection

of court, such statements are called documentary evidence.

The definition of “evidence”as per section 3 of Evidence Act is exhaustive

and clear. Thus the statements by witnesses before court, is evidence within the

meaning of Evidence Act. As such, the stage of inquiry does not contemplate any

evidence in its strict legal sense, nor the legislature could have contemplated this

as much as the stage for evidence has not yet arrived. The only materials the court

has before it is the materials collected by the prosecution and the court at this

stage of ongoing inquiry may get some information revealing some suppressed or

concealed facts which is necessary for fair trial. This is information of complicity

and courts at this stage can prima-facie, apply its mind to find out as to whether a

person, who can be accused, has been erroneously omitted from being arraigned or

has been deliberately excluded by the prosecuting agency. This is all the more

necessary in order to ensure that the investigating and prosecuting agencies have

acted fairly in bringing before the court those persons who deserve to be tried and

to prevent any person from being deliberately shielded when they ought to have

been tried. This is necessary to usher faith in Judicial system whereby court should

be empowered to exercise such powers even at the stage of inquiry and it is for

this reason that the legislature has consciously used separate terms, namely ,

inquiry or trial in section 319 Cr. P. C.

The exercise of such power at the stage trial is clear and obvious that if the

evidence recorded discloses involvement of some other person not facing trial,

court can array and summon him to trial but at the stage of inquiry there is one and

only one circumstance rather exceptional circumstance when court finds that

someone who ought to have been made accused, has been left out inspite of

materials disclosing his involvement in the crime.

Though evidence in strict legal sense is not contemplated at inquiry stage

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but there are some provisions relating to complaint case where evidence comes

before court u/s. 200,201, 202 Cr. P. C. even under 398 Cr .P. C. They are evidence

within the meaning of Evidence Act and there is no restriction in sec.319 Cr. P. C. So

as to preclude such evidences in complaint cases. These evidences are used for

passing order u/s. 204 Cr. P. C. and no accused is present in court while recording of

them, it can be used only for corroboration of evidence recorded during trial for the

purpose of sec.319 Cr. P. C., if required. The evidence in complaint case also comes

before framing of Charge. What is essential for the purpose of this section is that

there should appear some evidence against a person not proceeded against and the

stage of the proceeding is irrelevant. If the court is of opinion that there appears to

be some evidence pointing to the complicity of some other persons as well, section

319 Cr .P. C. acts as empowering provision and enables court to proceed against

such other persons, The purpose of 319 Cr. P. C. is to do complete justice and to

ensure that persons who ought to have been tried as well are also tried. Therefore,

there does not appear any difficulty in invoking such power at the stage of trial in

complaint case when the evidence of complainant as well as his witnesses is being

recorded.

Thus we find that for invoking such power at the stage of trial there is

evidence recorded by court which provides the basis for exercising aforesaid power

if there appears involvement of some other person not facing the trial and at inquiry

stage there is no evidence in strict legal sense and what is before court is materials

collected by investigating agency and court can prima-facie apply its mind. These

materials are not evidence as per the definition but are materials on the basis of

which evidence is adduced at trial, they facilitate the trial. At inquiry stage if the

court finds that someone has been left out in spite of material available against him

which indicates his involvement in the crime, can exercise such power in

exceptional circumstances, as stated earlier. As such the basis at inquiry stage is

the materials available on record. The word “evidence” used in the provision has

been used in context of the terms, “inquiry” and “trial”. The meaning of evidence in

trial is obvious and clear but in context of inquiry, it has to be understood in its

wider sense so as to be including materials collected by investigating agency and

not limited to evidence recorded during trial. The Question no (iii) get answered.

Proceeding to explain whether “evidence” means as arising in examination-

in-chief or together with cross- examination, it can be noticed that as per section 3

of Evidence Act , the Statement of witnesses in examination-in-chief is evidence in

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legal sense. Section 3 of Evidence act do not even whisper about including cross-

examination. In Rakesh case, it was held that “it is true that finally at the time of

trial the accused is to given opportunity to cross-examine the witness, but that

stage would not aries while exercising power u/s. 319 Cr. P. C... Once the deposition

is recorded, no doubt there being no cross-examination, it would be a prima-facie

material, which would enable the court to decide whether such powers should be

exercised or not.” In Md. Shafi, Court can wait till cross- examination is over. There

is no logic in waiting till cross- examination, the person sought to be added is not

participating in trial so that he can cross the witness. Moreover once added, he is

entitled for afresh trial, witnesses to be re- heard and will have opportunity to

cross. For evaluating the Statement of rebutting the same, cross- examination is

required which is considered at the stage of judgment and not essential for forming

a prima- facie opinion regarding complicity of some other person, not facing trial

and who could be tried together, as such, un crossed statement serves the purpose

for exercising power u/s. 319 Cr. P. C. The conclusion is that such power can be

exercised at the completion of examination-in-chief and court need not wait till the

said evidence is tested on cross examination for it is the satisfaction of court which

can be gathered from the reasons recorded by the court, in respect of complicity of

some other person not facing the trial. This provides answer to question no. (ii).

Section 319 Cr. P. C. empowers court to proceed against other person who

appear to be guilty of offence, though not an accused before court. The word

“appear” means “seems” and imparts a lesser degree of probability than proof. In

Rajendra singh case (AIR 2007 SC2786), it was observed that the court need not be

satisfied that he has committed an offence. It is sufficient that it applies that he

has committed an offence. In other words, from evidence it need only appear that

someone else has committed an offence for exercising such power. The expression

“appears” indicate the application of mind by court to evidence which has come

before court and then taking a decision to proceed u/s. 319 Cr. P. or not. As per Md.

Shafi case, the court must arrive at a satisfaction that there exists a possibility that

the accused so summoned in all likelihood would be convicted. As per Sarabjit

singh case (AIR2009 SC2792), the courts are required to apply stringent test, the

court must consider the entire materials on record to from an opinion that the

evidence if unrebutted, would lead to a judgment of conviction. As per Ram Singh V.

Ram Niwas & Anr. (2009) 14 SCC 25, for fulfillment of the condition that it appears

to the court, the court satisfy itself about the existence of unexceptional

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circumstances to exercise extraordinary jurisdiction. The court is to arrive at a

satisfaction that the evidence adduced, if unrebutted, would lead to conviction. As

per Bridaban Das V. State of West Bengal, AIR2009 SC 1248, the court is required

to consider whether such evidence would be sufficient to convict the person being

summoned, since issuance of summon u/s. 319 Cr. P.C entails a de novo trial and a

large no. of witnesses may have been examined and their re-examination can

prejudice or delay the trial, the trial court has to exercise such power with great

care and perspicacity. Thought only a prima- facie case is to be established but it

requires much stronger evidence from mere probability of his complicity. The test

that has to be applied is one which is more than prima-facie as exercised at the

time of framing of charge, but short of satisfaction to an extent that the evidence if

goes unrebutted, would lead to conviction. At time of framing charge, the court has

to see whether a prima facie case is made out for proceeding against the accused

person and u/s.319 Cr. P.C., though the test of prima- facie is same but the degree of

satisfaction required is much stricter. While exercising power at the inquiry stage,

the satisfaction would obviously be prima- facie on stricter and higher pedestal but

at trial stage, the degree of satisfaction has to be different on account of fact that it

will result in delay of trial. The degree of satisfaction for summoning original

accused and subsequently added accused at trial stage has got to be different. The

question no (iv) gets answered.

The expression “being the accused” does not exclude those who are not

named in FIR or named in FIR but not sent up by police or even discharged person.

They can be summoned u/s. 319 Cr. P. C. if materials or evidence discloses their

involvement in offences for which they could be tried together. The expression

clearly covers any person who is being tried by the court and purpose of 319 Cr. P. C.

clearly indicates that even persons who have been dropped by the police but

evidence shows their involvement in offence, are included in the expression. In

Anju Chaudhary V. State of U. P. (2013) 6 SCC 384 it was held that even in case

where report u/s. 173 (2) Cr. P. C has been filed and investigation records a person

in col. 2 or even does not name the person as accused at all u/ s 319 Cr. P. C. can

summon such person as accused. In Suman V. State of Rajasthan AIR 2010 SC 518,

it was held that there is nothing in the language of this sub- section from which it

can be inferred that a person who is named in FIR or complaint but against whom

charge- sheet is not filed by police, cannot be proceeded against even though in

course of inquiry or trial, court finds that such person has committed the offence for

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which he could be tried together with other accused. The constitutional bench in

Dharmpal's case has held that the session court can also exercise the original

jurisdiction and summon a person in col.2 of charge- sheet, once the case is

committed to it. It means that a person whose name appears in FIR and not main

charge – sheet but in col. 2 and has not been summoned u/s. 193 Cr. P. C. can still be

summoned, provided court is satisfied that conditions provided in the said

statuary provisions stand fulfilled. However the case of discharged person is on

different footing. The possibility of after thought view of merely seeking revenge or

implicating him on behest of some or for extraneous considerations, has to be

filtered out from the statement of witness and only if after careful examination of

the evidence, court is of opinion that there does exist evidence to proceed against

the person so discharged, it may take steps but before exercising such power

against discharged accused, the compliance of sec. 300 (5) and 398 Cr. P. C. has to

be done and then only could be summoned. This answers question no. (v),

In case of Babubhai Bhimabhai Bukharia V. St. of Gujarat, 2013(9) SCC 500,

The Apex court observed that the word used in the provision is “could be tried

together” which is necessarily not “must be tried together” if original case is on

verge of conclusion, then case for added accused person at such late stage can be

separated trial and the decision and disposal of the original case will have no

impact on the separated trial.

(1) Yogendra yadav V. St. of Bihar, AIR 2015 SC 2915

The accused persons who are added u/s. 319 Cr. P.C. on higher standard of

test, cannot be discharged U/s. 227 Cr. P. C. on lower standard of test by the

same court. The relief u/s. 227 Cr. P.C. is not available to them

(2) Dinesh Kumar @Deena v. St. Of T.N., AIR2015 SC 1816.

Prosecution witness cannot be added as an accused even if his statements

are inculpatory. Sec. 132 of Evidence Act drafts a statutory bar on such trial

and Article 20 (3) go hand in hand and no prosecution can be launched

against maker of such statements.

(3) R.N. Agrawal V R. C. Bansal & ors., 2014 AIR SCW 6139.,

Some worthy decisions post Hardeep singh's case by the Apex court:-

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The C.B.I Judge after compliance of 207 Cr. P. C., upo n application u/s. 319

Cr. P. C. by one of the accused, summoned P. Ws. 21, 23 and 30 to face trial on

the basis of materials in diary. The High court quashed the order in view of

Anirudh case as no fresh materials has come but the Apex court, in view of

Dharmpal's and Hardeep's case, restored the order of CBI Judge.

(3A) Bijendra Singh ors. V. St. Of Rajasthan, (2017)7 SCC706

Power u/s 319 Cr. P. C. is discretionary and extra ordinary which is exercised

sparingly and only in those cases where circumstances of the case so

warrants and strong and cogent evidence occurs against a person from the

evidence before the court and not in a casual and caviler manner.

(4) Periyasami V S Nallasamy, 2019 SCC online 379, decided on 14.3.2019

Mere naming accused persons for summoning them u/s. 319 Cr. P. C.

without any primary evidence of their roles played in the commission of

crime, can not be a strong and cogent evidence for exercise of such

extraordinary power which is to be exercised sparingly and not in a casual

and cavalier manner but only when strong and cogent evidence occurs.

(5) Sugreev Kumar V State of Punjab, AIR 2019 SC 2903, decided on

15.03.2019.

The Section 319 Cr. P. C. sanctions summoning of accused on the basis of

relevant evidence only. It is a discretionary and extraordinary power to be exercised

sparingly and only If strong and cogent evidence is available. The prima- Facie

opinion required under the above section is one which is more than prima- facie as

required for framing of charge but less than the satisfaction to the extent that the

evidence if goes unrebutted, would lead to conviction. In absence of such

satisfaction court should refrain from exercising such power. In section 319 Cr. P. C.

the purpose of providing if “ it appears from the evidence that any person not being

the accused has committed any offence” is clear from the words” for which such

person could be tried together with the accused. “The words used are not “ for

which such person could be convicted” There is, therefore, no scope for the court

acting u/s. 319 Cr. P. C. to from any opinion as to the guilt of the accused. Applying

the above principles, the Honorable court expressed its view that the consideration

of application u/s. 319 Cr. P. C. in impugned order has been as if the existence of

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case beyond reasonable doubt was being examined against the proposed accused

persons. In other words, the trial court and high court have proceeded as if an

unfailible case was required to be shown by the prosecution in order to proceed

against proposed accused persons. This clearly, been an erroneous approach

towards prayer for proceeding against a person with reference to the evidence

available on record. The witness has made statement assigning specific roles of

proposed accused persons. At the stage of considering application u/s. 319 Cr. P. C.,

of course, the court has to look at something more than a prima- facie case but

could not have gone to the extent of enquiring as to whether the matter would

ultimately result in conviction of the proposed accused persons.

************

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THE CONCEPT OF LEGAL AID AND FUNCTIONING OF LEGAL

SERVICES AUTHORITY

The Churning and honest self-introspection resulted into the provisions of 1

Article 39A of the Constitution of India, which puts a Constitutional obligation of

the State to make provision for Legal Aid to the weaker sections having no means,

to help them get legal assistance, by suitable legislation or schemes or in any other

way, to ensure that opportunities for securing justice are not denied to any citizen by 2 3

reason of economic or other disability. Article 14 and 22(1) also make it obligatory

for the State to ensure equality before law and a legal system which promotes

justice on a basis of equal opportunity to all.

thThe history of 'Legal aid' in India could be traced from the 14 report of the Law

Commission of India in the year 1958. The commission in its report recommended

that the word 'pauper' as used in CPC, Order XXXIII, should be substituted by the 4word 'poor persons' or 'assisted persons'. During 1960, the Govt. of India prepared

an outline for Legal Aid Organisations and States for their comments. But the

various State Governments in the conference held during 1962 had expressed 5their inability to allocate funds for the purpose of Legal Aid Scheme . However, the

6Report of the Expert Committee on Legal Aid titled as 'Processual Justice to the

People' was published by the Government of India in May, 1973. This committee

was constituted to see as to how the states should go about devising and

elaborating the legal aid scheme. The recommendations of this report were made

*Additional Chief Judicial Magistrate cum Principal Magistrate, East Champaran, Motihari1Art. 39-A : The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity and shall,

in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing

justice are not denied to any citizen by reason of economic or other disabilities.2The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.3No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest

nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.4S.K Sarkar, Law Relating to LokAdalats and Legal Aid, Commentary on the Legal Services Authorities Act, 1987, Orient Publishing Company, preface (v)5Supra note 1.6 thThe Expert Committee was constituted by the order of the Govt. on 27 October 1972 headed by Justice V.R Krishna Iyer, Judge Supreme Court of India.

Kishore KunalSub Judge cum ACJM

East Champaran, Motihari

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with a view “to bring about a system by which, through legal aid, justice is made

available to the people regardless of penury of social handicaps”. The Committee

came out with the most systematic and elaborate statement regarding

establishment of legal aid committees in each district, at state level and at the

Centers. It was also suggested that an autonomous corporation be set up, Law

clinics be established in Universities and lawyers be urged to help.

7The Committee in its report in Para 16 made recommendation to the Parliament to

make appropriate provision for a comprehensive scheme of legal aid and to give

grants for this purpose. Accepting this recommendation in the year 1976, Article nd

39A was introduced in the Directive Principles of State Policy by 42 Amendment

of the Constitution.

The Hon'ble Supreme Court in Hussainara Khatoon v. Home Secretary, State of 8

Bihar had called upon the Government to frame appropriate scheme for providing

legal aid to the poor. In order to achieve the objective enshrined in Article 39A of

the Constitution, and to look into the direction of the Hon'ble Supreme Court in

the Hussainara Khatoon the Government had, with the object of providing free th

legal aid, by a Resolution dated 26 September, 1980 appointed a 'Committee for

implementing Legal Aid Scheme' (CILAS) under the chairmanship of Chief

Justice P.N. Bhagwati to monitor and implement Legal Aid Programmes on a

uniform basis in all the States and Union Territories. The said committee evolved a 9

model scheme which was accordingly implemented by the Government . But on

review, certain deficiencies were found and it was considered desirable to

constitute statutory legal authorities at the National, State and District levels so as

to provide effective monitoring of Legal Aid programmes.

Legal Aid is the method adopted to ensure that no one is debarred from

professional advice and help because of lack of funds. Thus, the provisions of legal

aid to the poor are based on humanitarian considerations and the main aim of

these provisions is to help the poor people who are socially and economically 10 11

backward . Hon'ble Justice S.J Mukhopadhaya has rightly said : “When we talk of

7Para-16 We are, therefore, of the opinion that it is open to Parliament under the various entries already referred to, to make appropriate provision for a

comprehensive scheme of legal aid and to give grants for this purpose.8AIR 1979 SC 1369: 1980 (1) SC 98: 1979 (3) SCR 532: 1979 Cri LJ 1045: 1980 SCC (Cr) 40.9The introduction of LokAdalats added a new chapter to the justice dispensation system of this country and succeeded in providing a

supplementary forum to the litigants for conciliatory settlement of their disputes. 10Scott, C.H: Legal Aid Past and Present, A Brief Bleak Picture, P4-5.11On 13.09.2014 on the occasion of Legal Awareness Programme for College Students and Opening of Village Legal Care and

Support Centers at Puducherry.

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Legal aid, we must make it clear that the legal aid meant for those who are poor, those

who are illiterate, those who are unaware, those who don't care that what is going on,

they only care one thing, how will I be feeding my stomach? That is their aim, so they

don't look at the other things."

For the disposal of large number of cases expeditiously and without much cost

LokAdalats have been constituted and they have been functioning as a voluntary

and conciliatory agency without any statutory backing for its decisions. In order to

provide for the composition of statutory legal authorities and to provide statutory

backing to LokAdalat and its awards the Legal Services Authorities Bill, 1987 was th

introduced in the Lok Sabha on 24 August 1987. This Act was finally enforced on

9th of November 1995 after certain amendments were introduced therein by the

Amendment Act of 1994 to establish nationwide uniform network for providing free

and competent legal services to the weaker Sections of the society on the basis of

equal opportunity.

Section 3 of the Legal Services Authority Act provides for the constitution of the

National Legal Services Authority to exercise the powers and perform the functions 12conferred on, or assigned to, the Central Authority under this Act . Further Sec.3-A

provides for the constitution of Supreme Court Legal Services Committee to

administer and implement the legal services programme insofar as it relates to the

Supreme court of India. Similarly, Sec.6 of the Act provides for the constitution of

State Legal Services Authority (SLSA) with the Chief Justice of the High Court as

the Patron-in-Chief and the Senior most Judge of the High Court as the Executive

Chairman.

13At the District level, District Legal Services Authority (DLSA) have been

constituted within the premises of Civil Court with the District Judge as the

Chairman of the DLSA and the Junior most Additional District Judge as the

Secretary of the DLSA in Bihar. District Magistrate of the respective District is the

President of DLSA in Bihar. Similarly, at the Taluka Level, Taluka Legal Services 14

Committees (TLSA) have been constituted. The purpose of the DLSA and TLSA is

to give effect to the policies and directions of NALSA at the grassroot level and

State Legal Services Authority has to monitor the functioning of the DLSA and

TLSA apart from complying the policies and directions of NALSA.

Functioning of Legal Services Institutions:

12The Chief Justice of India is the Patron-in Chief of NALSA. The Senior Most Judge of the Supreme Court is the Executive Chairman and the CentralGovernment in consultation with the CJI has to appoint a person as the Member Secretary of NALSA.13 14 Section 9 of the Legal Services Authority Act-1987. Section 11-A of the Legal Services Authority Act-1987.

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The object of the Legal Services Authorities Act, 1987 is to provide not only free but

also competent legal services to the weaker sections of the society suffering from

economic or other disabilities, and to organize LokAdalats to secure that the

operation of the legal system promotes justice on a basis of equal opportunity.

Chapter IV of the Act provides the persons eligible (weaker section of the society) 15

for giving legal services and includes Women and Children, Members of SC/ST,

Industrial workmen, persons with Disability, Persons in custody, Victims of mass

disaster, violence, flood, drought, earthquake, Industrial disaster, Victims of

trafficking in human beings or beggar and persons whose annual income does not

exceed Rs. One lakh or as notified by the Central/ State Government.

Free Legal Aid Services means providing free legal aid in civil and

criminal matters to the above mentioned categories who can't afford the services of

a lawyer for the conduct of a case or a legal proceeding in any court, tribunal or

before an authority. In free legal aid service an advocate is provided to represent

the interest of the needy in legal proceeding, preparation and drafting of pleading,

documents, memo of appeal, paper book including printing, Xerox of

Free Legal Services:

15 Every person who has to file or defend a case shall be entitled to legal services under this Act if that person is –a member of a

Scheduled Caste or

Scheduled Tribe;

a) a victim of trafficking in human beings or beggar as referred to in Article 23 of the Constitution;

b) a woman or a child;

c) a person with disability as defined in clause (i) of section 2 of the Persons with Disabilities (Equal Opportunities,

Protection of Rights and Full participation) Act, 1995;

d) a person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste

atrocity, flood, drought, earthquake or industrial disaster; or

e) an industrial workman; or

f) in custody, including custody in a protective home within the meaning of clause (g) of Section 2 of the Immoral Traffic

(Prevention) Act, 1956, Juvenile Justice Act, 1986, or in a psychiatric hospital or psychiatric nursing

home within the meaning of clause (g) of Section 2 of the Mental Health Act, 1987.

g) In receipt of annual income less than rupees nine thousand or such other higher amount as may be prescribed by the

State Government, if the case is before a Court other than the Supreme Court, and less than twelve

thousand rupees or such other higher amount as may be prescribed by the Central Government if the case

is before the Supreme Court.

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16documents in legal proceedings, giving of advice on any legal matter . It also

includes aid and advice to the beneficiaries to access the benefits under the welfare

statutes and schemes framed by the Central Government or the State Government 17and to ensure access to justice in any other manner . However, legal services may

be withdrawn if the aided person is possessing sufficient means or if he has

obtained legal services by misrepresentation or fraud or if his matter is found to be 18an abuse of the process of law or legal services .

Any person in need of free legal services can approach the State Legal Service

Authority, District Legal Service Authority or Taluka Legal Service Authority

through an application which could either be sent in writing or by filling up the

form prescribed by the authorities stating in brief the reasons for seeking legal aid

or the grievances.

Para legal Volunteers and Panel Lawyers are two limbs of DLSAs. National Legal

Services Authority brought out a scheme called the Para-Legal Volunteers Scheme

during the year 2009 with an objective to impart legal training to volunteers 19 20

selected from different walks of life so as to ensure legal aid reaching all sections

of people through the process of Para-Legal Volunteers Scheme for smooth access

to justice. The entire process aims to ensure that Legal Services Institutions reach

out to the people at their doorsteps rather than people approaching such Legal

Services Institutions. Para-Legal Volunteers are expected to assist the Legal

Services Institutions to reach the people at large who are not aware of their right

and with their basic knowledge in the laws and other available welfare measures

and legislations; they are able to assist their immediate neighborhood. Para-Legal

volunteers are expected to act as bridging the gap between the common people and

the Legal Services Institutions. They may bring the needy people at the doorstep of

the government functionaries so that such people may able to taste the fruits of the

various Government Welfare Schemes.

Role of Para Legal Volunteers and Panel Lawyers:

16Legal Services: Access to Justice for All, National Legal Services Authority, Information Booklet.17Supra note; 16.18Supra note; 16.19PLVs shall be literate and having a mind-set to assist the needy in the society coupled with the compassion, empathy and concern

for the upliftment of marginalized and weaker section of the society. Ideally every Taluk Legal Services Committee shall have a

maximum number of 25 PLVs and DLSAs shall have 50 active PLVs on their roll.20The PLVs have to be trained in the basics of different Laws which would be applicable at the grassroots level with reference to their

day to day life, the subtle nuances employed in the working of a judicial system, and the functioning of various other stakeholders

like the Police, officials from Social Welfare Department, Woman and Child Welfare Department and other departments dealing with

different beneficial schemes of Central and State Governments including the protection officers involved with Domestic Violence

and Juvenile Justice Acts.

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PLVs are not only expected to impart awareness on laws and the legal system, but

they must also be trained to counsel and amicably settle simple disputes between

the parties at the source itself; which could save the trouble of the affected 21travelling all the way to the Legal Services Authority or ADR Centers . They help

out to see that the dispute does not escalate. If PLV fails to resolve the dispute at

the source destination then they may bring the parties to the concerned DLSA,

where, with the assistance of the Secretary either it could be referred to LokAdalat

or Mediation Centre or Legal assistance could be provided for adjudication in a

court of law; depending upon the nature of problem. The success of the legal aid

scheme effectively depends upon the active assistance and co-operation of the

members of the legal profession. It is also an obligation on persons who are in legal

profession to render their honorary services to the society by providing legal

services to those who need it. Bar Council of India reflects the same obligation in 22the rules framed by it.

23Panel Lawyers are also foot soldiers in this process who are empanelled under the

National Legal Services Authority (Free and Competent Legal Services)

Regulations, 2010. However, such Lawyers must have minimum three years'

experience at the Bar. Regulation 8 (10) of the Scheme provides that the Panel

Lawyers designated as Retainers shall devote their time exclusively for legal aid

work and shall be always available to deal with legal aid cases and to man the front 24

office or consultation office in the respective Legal Services Institutions .

In its effort to make legal aid easily accessible to the marginalized communities

and citizens, NALSA in association with Union Ministry of Law & Justice in

partnership with the Ministry of Electronics and Information Technology has

launched 'Tele Law Scheme' on 06.08.2017 in the State of Bihar to provide legal

aid services through its Common Service Centers (CSCs) at the panchayat level,

spread across the country. Under the Scheme, a portal called 'Tele-Law' has been

conceived, which is available across the Common Service Centre (CSCs) network.

21Scheme for Para-Legal Volunteers (Revised) & Module for the Orientation –Induction-Refresher Courses for PLV Training, P32.22Duty to render Legal aid – Every advocate shall in the practice of the profession of law berar in mind that any one genuinely in need

of a lawyer is entitled to legal assistance even though he can not pay for it fully or adequately and that within the limits of an

advocate's economic condition, free legal assistance to the indigent and oppressed is one of the highest obligations an advocate

owes to society. 23Regulation 8 (1)Selection of legal Practioners as Panel lawyers- Every Legal Services Institution shall invite applications from

legal practitioners for their empanelment as panel lawyers and such applications shall be accompanied with proof of the

professional experience with special reference to the type of cases which the applicant-legal practitioners may prefer to be

entrusted with. Further it also provides that the seclection of such panel lawyers shall be made by the Executive Chairman of the

Legal Services institutions. 24Further the regulation provides that the Panel lawyer shall not ask for or receive any fee, remuneration or any valuable

consideration in any manner, from the person to whom he had rendered legal services under these regulations. If the Panel lawyer

engaged is not performing satisfactorily or has acted contrary to the ovject and spirit of the Act and these regulations, the Legal

Services Institution shall take appropriate steps including withdrawal of the case from such lawyer and his removal from the

panel.

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This will connect the citizens to legal service providers with the help of technology

enabled platform. The purpose is to take legal aid to the door step of the poor which

will be made available through the CSCs. The CSC and PLV will offer easy legal

advice to litigants in rural India making them digitally and financially inclusive.

In the author's opinion, the pious object of Legal Services Authorities Act, 1987

which is to provide free and competent legal aid to the marginalized section of

people, may only be achieved by strengthening District Legal Services Authorities

and Taluka Legal Services Committees. Therefore, there is a need to re-look at

their function with a view to improve them by providing better and more efficient

and effective Legal aid to the people who really need them. In this regard, more

commitment and dedication is required from the Panel Lawyers and Para Legal

Volunteers to realize the assurance set out in the Constitution of India.

The successful implementation of NALSA Schemes or Tele Law Schemes is directly

dependent upon the performance of Panel Lawyers and Para Legal Volunteers.

Therefore, they must be provided regular training and sensitization programme

and paid timely honorarium for their work. They must also get recognition from the

government departments for their social work. More co-ordination among the

different govt. departments with DLSAs is also needed because the ultimate goal of

State in providing legal aid is to guarantee equal access to justice for all.

The philosophy of legal aid as an inalienable element of fair procedure is evident

from the locus classicus observation of Hon'ble Justice Brennan'sin following

words: “Nothing rankles more in the human heart than a brooding sense of

injustice. Illness we can put up with. But injustice makes us want to pull things down.

When only the rich can enjoy the law, as a doubtful luxury, and the poor, who need it

most, cannot have it because its expense puts it beyond their reach, the threat to the

continued existence of free democracy is not imaginary but very real, because

democracy's very life depends upon making the machinery of justice so effective that 25

every citizen shall believe in and benefit by its impartiality and fairness".

It is common knowledge that about 70 per cent of the people living in rural areas are

illiterate majority of people are not aware of the rights conferred upon them by law.

Even literate people do not know what are their rights and entitlements under the

law. It is this absence of legal awareness which is responsible for the deception,

Conclusion:-

25As quoted in M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544

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exploitation and deprivation of rights and benefits from which the poor suffer in

this land. Their legal needs always stand to become crisis-oriented because their

ignorance prevents them from anticipating legal troubles and approaching a lawyer

for consultation and advice in time and their poverty magnifies the impact of the

legal troubles and difficulties when they come. Moreover, because of their

ignorance and illiteracy, they cannot become self-reliant: they cannot even help

themselves. The law ceases to be their protector because they do not know that

they are entitled to the protection of the law and they can avail of the legal service

programme for putting an end to their exploitation and winning their rights. The

result is that poverty becomes with them a condition of total helplessness. This

miserable condition in which the poor find themselves can be alleviated to some

extent by creating legal awareness amongst the poor. That is why it has always been

recognised as one of the principal items of the programme of the legal aid

movement in the country to promote legal literacy.

*************

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NEED FOR REFORMS IN SECTION -

15 0F THE HINDU SUCCESSION

ACT,1956

I. INTRODUCTION

II. REVIEW OF LITERATURE

The constitution of India provides equality, of status to all including women.

Various legal reforms have taken place in India after independence including an

equal share of daughters' property. Yet equal status remains illusive' The orthodox

notions of lndian patriarchal society chase a female from her conception, follow her

during lifetime and refuse to leave her even after her death. Post death operation

of succession laws ensure that her blood relations are relegated to an inferior

position while her in laws triumph in enjoying her hard earned money. The post

death succession aspect of Hindu female is indirectly promoting injustice and 1inequality exactly an antithesis to the very goal of establishing the judicial system .

The ancient texts had given various dictates for property rights of a Hindu

woman. While some were liberal and granted specific shares to women there were

others that severely restricted a women's right to property. The women as per

ancient scriptures, mostly had only right to maintenance and no absolute

ownership.

It was in this backdrop that Hindu Women's Rights to Property Act l937 was

enacted. Under this Act widow of a deceased Coparcener of Mistakshara Joint

Hindu family could claim the share of her deceased husband which was subject to

certain conditions. The legislation of 1937 was repealed by the Hindu Succession

Act 1956. Section 15 of Hindu Succession Act of 1956 dealt with succession of

Hindu Female's Property. The previous enactments like Hindu Law of Inheritance

(Amendment) Act 1929 and the Hindu women's Right to Property Act 1937 dealt

with succession of the property of a male. On the recommendations of Hindu Law

1 Poonam Pradhan Saxena, "Reinforeing Patriarchal Dictates through Judicial Mechanism: Need to Reform Law of Succession to Hindu Female Intsetates", Journal of the Indian Law Institute No. 2, Vol, 51 (2009),p. 221.

2 Monica Chawla- "Law Relating to Hindu Women Property". Civil and Military Journal, Vol.43 (2007) p. 32.

3 Paras Diwan, Law of Intestate and Testamentary Succession (ed. 3rd) 2007, p. 128, Universal Law Publishing Co.

Seema Kumari

Sub-Judge-cum-ACJM, Buxar

| 73 |

JURIS RAY

talked about the various facets of Sec. l5(2)(a) and Sec. l5(2)(b) of HSA 1956 and

has explained the controversy related to them with the help of case laws.6Poonam Pradhan Saxena in her book 'Family Law Lecture family Law lI' has

discussed in detail the controversial areas arising from the application of Sec.

l5(2)(a) and Sec. 15(2)(b) of HSA 1956. She has emphasized on need for reform in

the provisions of Section I 5 of HSA 1956.

Kusum in her notes and comments on "Towards Gender Just Property 7Laws" has observed that Sec. 15 of HSA 1956 reflects the patriarchal assumptions

of a dominant male ideology. After her own children and husband who are class I

heirs, the property of a female Hindu dying intestate devolves not on her own heirs

but upon the heirs of her husband. V.S. Anjaria in his article "Succession to Former

Limited Estate of a Remarried Hindu Widow under the Hindu Succession Act, 81956 (A case for rethinking) has focused implications of continuance of former

limited estate of a Hindu widow as her absolute one even after her remarriage.

Firstly he poses a question whether the children from former as well as of last

marriage, all of them together with the husband of last existing marriage will be

entitled to succeed to her former estate as her heirs. Secondly he asks if a female

dies intestate issueless but leaving a husband from last marriage,

Committee in l94l under the chairmanship of Sh. B.N. Rao. the parliament had 2enacted the Hindu Succession Act 1956 . The Rau Committee on Hindu Law

Reforms recommended that all properties held by a women should be her

absolute properties and also laid down certain rules of succession to her property.

The Rau Committee right from the start gave recommendations for a separate

succession scheme for Hindu female. This was incorporated in the I956 Hindu 3Succession Act.

thOn May 12. 2000 the l5 ' Law Commission of India, headed by Shri Justice thB.P. Jeevan Reddy in its' l74 report on Property Rights of Women proposed reform

and amendment in Hindu Succession Act, 1956. On recommendation of Law

Commission, Hindu Succession Act 2005 came into existence. Though this new act

brought various amendments in the succession provisions ol Hindu female but it

did not touch anything in the area of devolution of property of Hindu female dying

intestate.

th4 Ranganath Misra and Vijendra Kumar, Mayne's Hindu law and Usage (ed. I 6 ) 2006, pp. 1234-124l.

5 Supra note 3nd6 Poonam Pradhan saxena' Family Law Lectures Family Law II (ed 2 ) 2007' pp 434-450,

Lexis Nexis Butterworths

7 Kusum, "Towards Gender Just Property Laws", Journal of the Indian Law Institute, No. l,

Vol.47 (2005) p.96.

8 V.S. Anjaria, "Succession to the Former Limited Estate of a Remarried Hindu widow under

the Hindu Succession Act 1956'" SSC (Journal). No' l, Vol.17,(1973),

| 74 |

JURIS RAY

Various books have written about the provision of Section 15 of Hindu Succession

Act 1956 but not many of them have highlighted the grey areas of Section l5 of

Hindu Succession Act 1956, especially the area that how devolution of self acquired

propety of a Hindu female dying intestate without any issue will take place. 4Mayne's Hindu Law and Usage has written about the provisions to Sec l5 of Hindu

Succession Act (it would be written as HSA from hereafter) 1956 and in brief it has

thrown light on the area of Sec. 15(2)(a) and Sec. 15(2)(b) where a female has

acquired property from father or father in law and died intestate without any issue. 5Paras Dirvan in his book 'Law of' lntestate and Testamentary Succession has then

will this husband inherit the property of female who inherited from her former

husband.

Poonam Pradhan Saxena in her notes and comments on "Reinforcing

Patriarchal Dictates through Judicial Mechanism: Need to Reform Law of

Succession to Reform Law of Succession to Reform Law of Succession to Hindu 9Female lntestates.'' She tries to bring into the attention of her readers the various

anomalies hidden in the provision of Sec. l5(2)(a) and Sec. l5(2)(b) of HSA 1956.

Making Om Prokash v. Radhacharan case as the central point of her writing she

focuses on the bias towards male which is inherent in the provision of Sec. 15 of

HSA 1956. She mentions about the dual treatment given by the judiciary in case

of male and female.

Going through the various literature and writings by different authors one

finds the following lacunae in the provision of Sec. l5 of HSA 1956.

(1) The researcher agrees with defect pointed out by Poonam Pradhan Saxena

that Sec. 15 of HSA 1956 is not constitutionally valid in spite of the fact that 11court had upheld its' constitutional validity in a case. The constitutional

validity of the provision providing for two separate schemes of succession for

male and female intestates was challenged as volatile of article 14 and

article 15. The classification is not founded on intelligible differentia and

has no rational relation to the object the legislative provision is intended to

achieve.

(2) This section. has not clearly enumerated the succession of a female Hindu

property where it is self acquired.

(3) Notwithstanding anything contained in sub-section( 1 )

10

9 Supra note 1.

10 SCALE, Vol. 7 (2009),pp. 51-54.

11 Somu Bai Yashwant Jadeav v. Balagovinda Yadav, AIR 1983 Bom 156

| 75 |

JURIS RAY

(a) any property inherited by a female Hindu from her father or mother

shall devolve, in the absence of any son or daughter of the deceased

(including the children of any pre-deceased son or daughter) not

upon the other heirs referred to in sub-section (1) in the order

specified therein, but upon the heirs of the father; and

(b) any property inherited by a female Hindu from her husband or from

her father-in-law shall devolve, in the absence of any son or

daughter of the deceased (including the children of any pre deceased

son or daughter) not upon the other heirs referred to in sub-section

(1) in the order specified therein, but upon the heirs of the

husband'

This section deals with the general rules of succession to the property of a

Hindu female dying intestate. It applies to the property of which a Hindu female is

the full owner in terms of Section 14 of the Act. The source from which she obtains

the property is important in regard to certain categories of property, as the order of

heirs depends on the source. This section has only prospective application to any 12category of property.

Section I5 deals with categories of heirs and categories of proper ty'

Section 16 deals with the order of succession and the manner of distribution of

property among the heirs.

Property includes all kinds of heritable property of a woman acquired from

any source except covered by Sec. 14(2). For the purposes of succession. a female

property is divided broadly into three categories.

(1) Property inherited by a female from her father or mother:

(2) Property inherited from her husband or father in law and

(3) Property which she herself acquired in any other manner from any other

source as her absolute Property.

So far as the first two categories are concerned, separate set of rules are

prescribed for the purpose of devolution in sub-section 2(a) and 2(b). The third 13category is governed by sub-section ( I ) of this section .

According to sec 15 ( I ) the property of female intestate will go to her

children or children of deceased children and her husband. If none of them is

present then the property goes to the heirs of her husband. In their absence the

12 Supra note 3, p. 169.

13 Supra note 4,p. 1236

14 AIR 1998 SC, 1692

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JURIS RAY

properly will go to her parents in equal shares. In absence of her parents, property

goes to heir of father and failing them it goes to heirs of mother. 14ln Seetha Ammal v Muthu Venkatraman, supreme court held that in order

to decide, who are the heirs of the female Hindu under sec l5 (1) (b), it has to be

ascertained not at the time of death of the husband but at the time of wife's death.

The Hindu succession Bill, 1954 as originally introduced in the Rijya Sabha

did not contain any clause corresponding l5(2). lt came to be incorporated on the

recommendations of Joint committee of the two Houses of parliament. In the

opinion of Joint committee such a provision would prevent properties passing into 15the hands of persons to whom - justice would demand they should not pass. The

16stand was made clear by supreme court the case Bhagat Ram v Teja Singh court

held that the intent of legislature is clear that the property if originally belonged to

parents of the deceased female, should go to the legal heirs of the father. So also

under clause (b) of sec l5(2), the property inherited by the female from her

husband or father in law, shall also under similar condition, devolve upon the heirs

of husband. lt is the SOURCE from which the property was inherited of the female,

Which is more important for the purpose of devolution of her property.

1. As the interpretation says that legislature intended conservation of the

property in the family where it was received by a Hindu female it would be a

complicated case where a Hindu female dies and leaves behind her share in

the coparcenary property. Would the property be included under general

property as it can't be called property inherited from parents.If its is termed

as general property and goes as per Sec 15 then whether she has children or

not it will go to her husband and in his absence to his heirs to the exclusion

of parents. This would be contrary to the intention of legislature as the 17property wouldn't be conserved in the family from where it came.

2. Section 15 of HSA further reflects the patriarchal assumptions of a thdominant male ideology. The 174 report had explained the position thus

"Again the patrilineal assumptions of dominant male ideology are clearly

reflected in the laws governing a Hindu female who dies intestate. The law

in her case is markedly different from those governing Hindu males. The

IV. CONTENT ANALYSIS

15 207 Law Commission of India Report on proposal to Amend Section 15 of The Hindu Succession Act,

1956 in case a female dies intestate leaving her self acquired property with no heirs, para 3.3. Vol.

18, pp. 206.5-207.12

16 AIR 2002 SC 1 at p. 3

17 Supra note l, p.234

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JURIS RAY

property is to devolve first to her children and husband, secondly, to her

husband's. heirs; thirdly to her father's heirs and lastly to her mother's

heirs. The provision of Sec 15(2) of HSA is again indicative of a tilt towards

the male as it provides that any property she inherited from her father or

mother should devolve, in absence of any children, to the father's heirs.

These provisions indicate that if a female who has inherited property from

mother, when the female dies intestate without any issue' her property will

go to heirs of her father even if her parents are divorced.

3. ln a situation,, where a female from her father and she dies intestate without

leaving any issue then it will go to the heirs of the father. Even if the father is

alive he will not get the property rather his heirs would get them as per

provision of Sec l5(2) (a)

4. The term 'property' though not specified in this section means property of

the deceased heritable under the Act. It includes both movable and

immovable property owned and acquired by her inheritance or by devise or

at a partition or gift or by skill etc. This section does not differentiate

between the property inherited and self acquired property of a Hindu 19female.

Section 15 of HSA, has not clearly enumerated about succession of a female

Hindu property where it is self acquired or to put it this way, the legislators

did not contemplate that Hindu females would be in later years would be

having self-acquired property and in certain cases where her heirs in the

first category fail, the property would devolve totally upon her husband's 20heirs who may be remotely related as compared to her own father's heirs.

A complicated situation related to self'-acquired property of a female 21intestate without any issue, arose in the case of Om Prakash v Radhacharna. ln

this case Narayani Devi married Deendayal Sharma, who died within three

months of marriage. She was driven out of her matrimonial home. Her parents

educated her, she stayed with them, earned a living and died on July 11, 1966. She

left behind a substantial estate, but wrote no will and had no issue. Both her

mother and her husband's heirs claimed property. The Supreme Court considered

the scope of section l5 of HSA and held against mother. The court dismissed the

case by noting that it was a hard case and that in principal of law sympathy had no

role in determining the rights of the parties which are clear.

18

18 174th Report of the Law Commission of lndia, Vol' l4, p. 174.8

19 Supra note 16, para 3.5

20 Supra note I6, para 4.2

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JURIS RAY

The above judgment was greatly criticized by various segment of society.

Poonam Pradhan Sexena in her article wrote that the above judgment of judiciary

was disappointing as it came from Indian judiciary which is one of the major

components of state mechanism empowered to dispense justice in accordance with

the constitutional principles and law. The judgment sub served the ends of justice.

Rewarding the underserved was in itself like rewarding the guilty. The court first of

all is courts of equity, justice and good conscience and the above judgement fails to 22come up to expectations on all the three fronts.

5. In situation where a female inherits property from her husband of

former marriage and when she dies intestate leaving children from

her former and later marriage, where will the property devolve. In 23the case of Dhanistha Kalita v Ramakanta Kalita the court

observed, the object of Sec l5 (2) is to ensure that the property left by

a Hindu female, does not lose the real source from where the

deceased female had inherited the property....if such property is

allowed to be drifted away from the source, the object of Sec l5(2)

would be defeated i.e. if such property is allowed to be inherited by a

son or a daughter whom the female had begotten not from the

husband whose property she inherits, but from some other husband,

then Sec 15(2) (b) will become meaningless. 24Poonam Pradhan Saxena in her book notes that the

legislaturc has used in Sec l5(2) (b) the expression,

in absence of any son or daughter of the deceased.'

The expression 'son and daughter' used in the section are without any qualification

i.e. it would includes all kinds of sons and daughter. whether legitimate,

illegitimate. from former husband or later husband. All children have equal rights

over the property of their mother and it is only in case of their absence that question

of source of the properly becomes relevant. The court is creating a contradiction

between clause (a) and clause (b) of section l5 (2). A distinction like this would

make a women incapable of transrnitting the property to her heirs and frustrate the

object of making an absolute owner of the property.

21 SCALE. Vol. 7. (2009), pp. 5l-55

22 Supra note I , pp. 235. 236.

23 AIR 2003. Gauhati 92

24 Supra note 6, pp. 448-449.

| 79 |

JURIS RAY

V. SUBMISSION

VI. SUGGESTION

Thus, it is submitted that though constitution of India provides equality of

status to all including women yet equal status is still a distant dream. If enactment

of laws was sufficient to protect women, the women in India are on velvet. But

reality bites.

Thus. it may be summed from the review of various literature that Sec 15 of

HSA is ingrained with the seeds of gender bias and has various loopholes fringed to

it.

Thus under HSA 2005 the position may be summed up as under: where a

Hindu women dies intestate the property is divided in categories of succession.

l) Properties inherited from father and mother goes to father's heirs in

absence of children.

2) Property inherited from husband or in law goes to husband's

heir.

3) The general property goes to children and husband, in their absence

to heirs of husband, in their absence to parents. In absence of parents

to heirs of father and in their absence to heirs of mother.

Thus it may be submitted that there are few grey areas in Sec 15 of

HSA. Some of them are areas related to self acquired property or

where the female intestate dies leaving children from two marriages

and she had inherited property from one marriage or where a

Hindu female dies and leaves her share in the co-parcenary property.

In the present scenario when amendments are made to effect that women

have been entitled to inherit property from her parental side as well as from

husband's side, it will be quite justified if equal rights are given to her parental

heirs along with husband's heirs to inherit her property. Section 15 should be

amended so that a femate Hindu dying intestate without children leaving self

acquired property should devolve on husband's heirs and also an parent's heirs

equally.

There should be uniform scheme of succession for all intestates irrespective

of sex. The provision of two different schemes for male and female intestate is

discriminatory and should be deleted from the statute book. There has been a vast

change in the social scene in the past few years. Now women are owning property

| 80 |

JURIS RAY

earned by their own skill. These situations were not foreseen by the legislators, so

there should be an amendment in Sec l5.

One of the fundamental tenets of law of succession has been the proximity of

relation in which a successor stands to the person who originally held the property 25that may be the subject matter of inheritance in a given case Amendrnent should

be brought so that in case of a Hindu female dying intestate, without issue, her

parents are not relegated to an inferior placement as compared to her distant in

laws relatives.

The provisions of Sec 15 HSA should be given more clarification on the areas

where law is silent so that the traditional patriarchal interpretations by judiciary

can be given a good bye.

The above stated reforms will go a long way in improving the status of women

in Indian society.

1) Paras Diwan. Law of Intestate and Testamentary Succession, (ed. 3'd) 2007,

Universal Law Publishing Co.nd2) Poonam Pradhan Saxena. Family Law Lectures Family Law 11, (ed. 2 )

2007. Lexis Nexis Butterworths.

3) Ranganath Misra and Vijender Kumar, Mayne's Hindu Law and Usage, (ed. th16 ) 2008, Bharat Law House, New Delhi.

1) AIka Chawla. "Rhetoric and Reality of Women's Developrnent:

Contemporary perspective", Delhi Law, Review, Vol. XXI, (1997).

2) Monica Chawla, "Law Relating to Hindu Women Property", The Civil and

Military Journal, Yol. 43, (2007).

3) V.S. Anjaria, "Succession to the Former Limited Estate of a Remarried

Widow under the Hindu Succession Act, 1956", Supreme Court Cases

Journal, Vol. 40, (2001).

1 ) Kusum, "Towards Gender Just Property Laws". Journal of the Indian Law

Institute, Vol. 47, (2005).

VII. BIBLIOGRAPHY

Books

Articlcs

Notes and Comments

25 Jeremy Bentham, Theory of Legislation 109 (1795) quoted in Supra note 1, p.233

| 81 |

JURIS RAY

2) Poonam Pradhan Saxena, "Reinforcing Patriarchal Dictatcs. Through

Judicial Mechanism: Need to Reform Law of Succession to Hindu Female

Intestate", Journal of the Indian Law Institute, Vol. 51. (2009).

l) Poonam Pradhan Saxena. "Law and Gender Inequality: The politics of

Women's Rights", by Flavia Anges, Journal of the lndia Institute, Vol. 44,

(2002).

2) Poonam Pradhan Saxena, "Women and Law" by Anjali Kant. Journal of the

Indian Law Institute, Vol. 41. (1999).

l) Report of Law Cornnrission of India, 174th Report, Vol. 14, Universal Law

Publishing co.

2) Report of the Law Commission of India, 207th Report, Vol. 18. Universal

Law Publishing co.

1) The Hindu Succession Act, 1956.

*********

Book Reviews

REPORTS

STATUS

PART - 2

SYNOPSIS OF

RECENT

JUDGEMENTS

| 83 |

of 207 & 208 cr.p.c

3

M. Ravindran The Vs.

Intelligence Officer,

Directorate of Revenue Section 167(2) Cr.P.C

Subsequent filing of Charge-sheet does not

take away right of default bail if accused

State Of Uttar Pradesh.

2020(4)PLJR(SC)111

Section 433 A CrPCright

7

Sudha Singh State of Vs.

Uttar Pradesh,2021 SCC

OnLine SC 342

Section 437/439

Cr.P.C

There is no doubt that liberty is important,

even that of a person charged with crime

but it is important for the courts to

recognise the potential threat to the life and

liberty of victims/witnesses, if such accused

is released on bail

8

Sushila Aggarwal State Vs.

(NCT of Delhi), (2020) 5

SCC 1

Section 438 Cr.P.C

Protection granted to a person under

Section 438 CrPC should not invariably be

limited to a fixed period

Aparna Bhat and Ors. Vs.

State of Madhya Pradesh

and Ors. (18.03.2021 - SC)

: MANU/SC/0193/2021

Bail conditions and orders should avoid

reflecting stereotypical or patriarchal

notions about women and their place in

society, and must strictly be in accordance

with the requirements of the Code of

Criminal Procedure

Criminal Procedure Code

Index

Sl.No Case Title/Citation Section Finding

1

Vishwanath Biradar Vs.,

Deepika & Ors., SLP

(Crl.) 4123/2021

Section 41 & 46

Cr.P.C

Arrest of an accused is prerogative of

Investigating Officer

2

Miss A State of Uttar Vs.

Pradesh 2021(1) PLJR SC

116

Section 164, 207 &

208 Cr.P.C

Accused cannot claim copy of statement

recorded u/s 164 cr.p.c., prior to the stage

Satish @ Sabbe v. The Remission cannot be claimed as matter of6

5 Haryana, 2021 SCC

OnLine SC 404

Section 313 Cr.P.C. required to be examined with care &

caution. Law Reiterated and guidelines

issued

Intelligence 2020 (4) PLJR

320 (SC)has applied it earlier

Rhea Chakraborty Vs.

State of Bihar & Ors.

2020(4)PLJR(SC)120

Section 174 and 406

Cr.P.C

Police cannot refrain from investigating on

territorial grounds if complaint/information

discloses commission of cognizable offence

Satbir Singh vs State of

Examination of accused u/s 313 cr.p.c, is

not merely procedural formality. Accused is

4

Synopsis of Recent Judgements of

Supreme Court (Criminal)

JURIS RAY

Section 438 Cr.P.C9

| 84 |

JURIS RAY

10

Chaman Lal The State Vs.

of Himachal Pradesh AIR

2021 SC 46

Section 3 r/w Section

118 & 119

Mentally disabled girl is not in a position to

understand ‘good’ or ‘bad’, conviction

based upon medical evidence r/w ocular

testimony, despite contradictions is

sustainable

11

Jayamma and Ors. Vs.

State of Karnataka

(07.05.2021 - SC) :

MANU/SC/0347/2021, Cr.

Appeal No. 758/2010

Section 32It is unsafe to convict accused alone on basis

of dying declaration

12

Arjun P. Khotkar vs

Kailash K. Gorantyal &

Ors., (2020)7SCC1

Section 65B

Certificate as required u/s 65(B) (4) Indian

Evidence Act is must for admissibility of

secondary electronic evidence

INDIAN EVIDENCE ACT

13

Maheshwar Tigga Vs.

State of Jharkhand Section 90 and 376

IPC

Consent given by prosecutrix need to be

considered on the basis of evidence and

attending circumstances

Sandeep Kumar Vs State Section 304-B IPC :

INDIAN PENAL CODE

2021 SC 691

113B Indian Evidence

Act

If un-natural death is not proved conviction

u/s 304B IPC cannot sustain

15

Gurmeet Singh State Vs.

of Punjab, Criminal

Appeal No. 1731 of 2010,

Section 304-B IPC :

113B Indian Evidence

Act

Soon before death does not mean

immediately before death

16

Mukesh Singh Vs. State

(Narcotic Branch of

Delhi), AIR 2020 SC 4794

Section 53

On sole ground that informant/police

officer and investigating officer is same

person, accused is not entitled for acquittal

17

Shilpa Mittal State of Vs.

NCT of Delhi and Ors.

2020(1)PLJR (SC)352

Section 2(33)

Offence which does not provide minimum

sentence of 7 years imprisonment cannot be

treated a heinous offence

18

In Re: Contagion of

COVID 19 Virus in

Children Protection

Homes (07.06.2021 - SC

Order) :

MANU/SCOR/17751/2021

Section 107

19

Bikramjit Singh vs The

State Of Punjab 2020 (4)

PLJR 263 (SC)

Section 11 and 22 of

NIA Act

NIA ACT

N.D.P.S. ACT

JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN)

ACT, 2015

Specific directions issued in reference withsec. 107 of Jevenile Justice (Care & Protectionof CHILDREN) ACT - 2015

Magistrate has no power to extent time forin vestigation under NIA Act.

2020(4)PLJR(SC)100

14Sandeep Kumar Vs. State of Uttarakhand, AIR

| 85 |

JURIS RAY

SYNOPSIS OF RECENT SUPREME COURT JUDGEMENTS (CRIMINAL)

CRIMINAL PROCEDURE

(Arrest of an accused is prerogative of Investigating Officer)

Issue : In this case Hon'ble Karnataka High Court while quashing Anticipatory

Bail order passed in favour of petitioner by Addl. Sessions Judge, Dakshina

Kannada, Mangaluru, issued directions to Investigating Officer to take the accused

in custody and produce him before the concerned Jurisdictional Court.

Held : Whether an accused is liable to be arrested is based upon the decision of the

Investigating Officer depending upon the material collected during the

investigation which may be conducted in a particular crime. It is for the

investigation agency to whom the investigation has been entrusted to take a call as

to when the petitioner is to be arrested.

(Accused cannot claim copy of statement recorded u/s 164 cr.p.c., prior to the stage

of 207 & 208 cr.p.c.)

Held : No person is entitled to a copy of statement recorded under of

the Code till the appropriate orders are passed by the court after the charge-sheet

is filed.

The right to receive a copy of such statement arises only after cognizance is taken

and at the stage contemplated by and of the Code and not before.

The application of Respondent No.2 was, therefore, rightly rejected by the

Additional Sessions Judge and the order so passed did not call for any interference

by the High Court.

CODE

(I) Section 41 & 46 Cr.P.C.

(II) Section 164, 207 & 208 Cr.P.C.

1. Vishwanath Biradar Vs. Deepika & Ors., SLP (Crl.)

4123/2021, decided on 11-06-21

2. Miss A Vs. State of Uttar Pradesh 2021(1) PLJR SC 116

Section 164

Sections 207 208

| 86 |

JURIS RAY

In matters relating to sexual exploitation utmost confidentiality is required to be

maintained.

(Subsequent filing of Charge-sheet does not take away right of default bail if

accused has applied it earlier)

Issue : In the present case, the Appellant accused had exercised his option to

obtain bail by filing the application at 10:30 a.m. on the 181st day of his arrest, i.e.,

immediately after the court opened, on 01.02.2019. The Public Prosecutor had not

filed any application seeking extension of time to investigate into the crime prior to

31.01.2019 or prior to 10:30 a.m. on 01.02.2019. The Public Prosecutor

participated in the arguments on the bail application till 4:25 p.m. on the day it

was filed. It was only thereafter that the additional complaint came to be lodged

against the Appellant. Therefore, the Appellant accused was deemed to have

availed of his indefeasible right to bail, the moment he filed an application for

being released on bail and offered to abide by the terms and conditions of the bail

order, i.e. at 10:30 a.m. on 01.02.2019. He was entitled to be released on bail

notwithstanding the subsequent filing of an additional complaint. the State/the

investigating agency has, in order to defeat the indefeasible right of the accused to

be released on bail, filed an additional complaint before the concerned court

subsequent to the conclusion of the arguments of the Appellant on the bail

application. If such a practice is allowed, the right under Section 167(2) would be

rendered nugatory as the investigating officers could drag their heels till the time

the accused exercises his right and conveniently file an additional complaint

including the name of the accused as soon as the application for bail is taken up for

disposal. Such complaint may be on flimsy grounds or motivated merely to keep

the accused detained in custody, though we refrain from commenting on the

merits of the additional complaint in the present case. Irrespective of the

seriousness of the offence and the reliability of the evidence available, filing

additional complaints merely to circumvent the application for default bail is an

improper strategy.

(III) Section 167(2) Cr.P.C.

3. M. Ravindran Vs. The Intelligence Officer,

Directorate of Revenue Intelligence 2020 (4)

PLJR 320 (SC)

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JURIS RAY

Held : The Supreme Court laid down the following principles.

1. Once the accused files an application for bail under the Proviso to Section

167(2) he is deemed to have 'availed of' or enforced his right to be released on

default bail, accruing after expiry of the stipulated time limit for investigation.

Thus, if the accused applies for bail under Section 167(2), CrPC read with

Section 36A (4), NDPS Act upon expiry of 180 days or the extended period, as

the case may be, the Court must release him on bail forthwith without any

unnecessary delay after getting necessary information from the public

prosecutor, as mentioned supra. Such prompt action will restrict the

prosecution from frustrating the legislative mandate to release the accused on

bail in case of default by the investigative agency.

2. The right to be released on default bail continues to remain enforceable if the

accused has applied for such bail, notwithstanding pendency of the bail

application; or subsequent filing of the chargesheet or a report seeking

extension of time by the prosecution before the Court; or filing of the charge

sheet during the interregnum when challenge to the rejection of the bail

application is pending before a higher Court.

3. However, where the accused fails to apply for default bail when the right

accrues to him, and subsequently a charge sheet, additional complaint or a

report seeking extension of time is preferred before the Magistrate, the right to

default bail would be extinguished. The Magistrate would be at liberty to take

cognizance of the case or grant further time for completion of the investigation,

as the case may be, though the accused may still be released on bail under

other provisions of the Cr.P.C.

4. Notwithstanding the order of default bail passed by the Court, by virtue of

Explanation I to Section 167(2), the actual release of the accused from custody

is contingent on the directions passed by the competent Court granting bail. If

the accused fails to furnish bail and/or comply with the terms and conditions of

the bail order within the time stipulated by the Court, his continued detention

in custody is valid.

________________

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JURIS RAY

(IV) Section 174 and 406 Cr.P.C.

4. Rhea Chakraborty Vs. State of Bihar & Ors.2020(4)

PLJR(SC)120

(Police cannot refrain from investigating on territorial grounds if

complaint/information discloses commission of cognizable offence)

Issue : Section 406 Cr.P.C. Transfer of investigation.

Held : In this case Hon'ble Supreme Court held that the scope of exercise of power

under section 406 CrPC is for securing the ends of Justice .It is granted in cases

where the court believed that the trial may be prejudiced and that fair and

impartial proceeding cannot be carried on .The transfer of investigation on the

other hand has been negated by this court in the case of Ram Chander Singh Sagar

And Anr vs State Of Tamil Nadu And Anr 1978 SCR (2) 604.

A police officer cannot refrain from investigating a matter on territorial grounds if a

complaint discloses commission of a cognizable offence and the issue can be

decided after conclusion of investigation.

Proceeding u/s 174 crpc is limited to the enquiry carried out by the police to find

out the apparent cause of unnatural death. It is not in the nature of investigation

undertaken after the filing of FIR. Inquiry by the Mumbai police has not resulted in

the filing of FIR in this case. Bihar government was competent to give consent for

entrustment of investigation to the CBI and as such the ongoing investigation by

the CBI was held to be lawful. It was further observed that while the CBI cannot

conduct any investigation without the consent of the concerned State as mandated

under section 6 of the DSPE Act, the powers of the constitutional courts are not

fettered by the statutory restriction of DPSE Act.

_______________

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JURIS RAY

(V) Section 313 Cr.P.C.

5. Satbir Singh Vs. State of Haryana, 2021 SCC

OnLine SC 404

(Examination of accused u/s 313 cr.p.c, is not merely procedural formality.

Accused is required to be examined with care & caution. Law Reiterated and

guidelines issued)

Issue : In this case appellants were convicted by the Trial Court for the offences

under Sections 304-B and 306, IPC. Aggrieved thereby, the appellants approached

the High Court to set aside the order of conviction and sentence passed by the

Trial Court. Hon'ble Appellate Court upheld the order of the Trial Court and

dismissed the appeal filed by the appellants. The appellants by way of Special

Leave, challenged the concurrent findings of the Courts below.

Observations recorded by Hon'ble Apex Court : It is a matter of grave concern that,

often, Trial Courts record the statement of an accused under Section 313, CrPC in a

very casual and cursory manner, without specifically questioning the accused as to

his defense. It ought to be noted that the examination of an accused under Section

313, CrPC cannot be treated as a mere procedural formality, as it is based on the

fundamental principle of fairness. This provision incorporates the valuable

principle of natural justice- “audi alteram partem”, as it enables the accused to

offer an explanation for the incriminatory material appearing against him.

Therefore, it imposes an obligation on the part of the Court to question the accused

fairly, with care and caution. The Court must put incriminating circumstances

before the accused and seek his response. A duty is also cast on the counsel of the

accused to prepare his defense, since the inception of the trial, with due caution,

keeping in consideration the peculiarities of Section 304-B, IPC read with Section

113-B, Evidence Act.

Hon'ble Supreme court also referred to law as laid down in Kans Raj v. State

of Punjab, (2000) 5 SCC 207 and other cases and issued guidelines as under

:-

At the cost of repetition, the law under Section 304-B, IPC read with Section

113-B, Evidence Act can be summarized below:

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i. Section 304-B, IPC must be interpreted keeping in mind the legislative

intent to curb the social evil of bride burning and dowry demand.

ii. The prosecution must at first establish the existence of the necessary

ingredients for constituting an offence under Section 304-B, IPC. Once

these ingredients are satisfied, the rebuttable presumption of causality,

provided under Section 113-B, Evidence Act operates against the

accused.

iii. The phrase “soon before” as appearing in Section 304-B, IPC cannot be

construed to mean 'immediately before'. The prosecution must

establish existence of “proximate and live link” between the dowry

death and cruelty or harassment for dowry demand by the husband or

his relatives.

iv. Section 304-B, IPC does not take a pigeonhole approach in categorizing

death as homicidal or suicidal or accidental. The reason for such non

categorization is due to the fact that death occurring “otherwise than

under normal circumstances” can, in cases, be homicidal or suicidal or

accidental.

v. Due to the precarious nature of Section 304-B, IPC read with 113-B,

Evidence Act, Judges, prosecution and defence should be careful during

conduction of trial.

vi. It is a matter of grave concern that, often, Trial Courts record the

statement under Section 313, CrPC in a very casual and cursory manner,

without specifically questioning the accused as to his defense. It ought

to be noted that the examination of an accused under Section 313, CrPC

cannot be treated as a mere procedural formality, as it based on the

fundamental principle of fairness. This aforesaid provision incorporates

the valuable principle of natural justice “audi alteram partem” as it

enables the accused to offer an explanation for the incriminatory

material appearing against him. Therefore, it imposes an obligation on

the court to question the accused fairly, with care and caution.

vii. The Court must put incriminating circumstances before the accused

and seek his response. A duty is also cast on the counsel of the accused

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to prepare his defense since the inception of the Trial with due caution,

keeping in consideration the peculiarities of Section 304-B, IPC read

with Section 113-B, Evidence Act.

viii. Section 232, CrPC provides that, “If, after taking the evidence for the

prosecution, examining the accused and hearing the prosecution and

the defence on the point, the Judge considers that there is no evidence

that the accused committed the offence, the Judge shall record an

order of acquittal”. Such discretion must be utilized by the Trial Courts

as an obligation of best efforts.

ix. Once the Trial Court decides that the accused is not eligible to be

acquitted as per the provisions of Section 232, CrPC, it must move on

and fix hearings specifically for 'defence evidence', calling upon the

accused to present his defense as per the procedure provided under

Section 233, CrPC, which is also an invaluable right provided to the

accused.

x. In the same breath, Trial Courts need to balance other important

considerations such as the right to a speedy trial. In this regard, we may

caution that the above provisions should not be allowed to be misused as

delay tactics.

xi. Apart from the above, the presiding Judge should follow the guidelines

laid down by this Court while sentencing and imposing appropriate

punishment.

xii. Undoubtedly, as discussed above, the menace of dowry death is

increasing day by day. However, it is also observed that sometimes

family members of the husband are roped in, even though they have no

active role in commission of the offence and are residing at distant

places. In these cases, the Court need to be cautious in its approach.

________________

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JURIS RAY

(VI) Section 433 A

(VII) Section 437/439 Cr.P.C.

Cr.P.C.

(Remission cannot be claimed as matter of right)

Held :It was held that first time offenders ought to be liberally accorded a chance

to repent their past and look forward to a bright future. No convict can claim

remission as a matter of right. It would be gainsaid that length of the sentence or

the gravity of the original crime can't be the sole basis for refusing premature

release. Any assessment regarding predilection to commit crime upon release

must be based on antecedents as well as conduct of the prisoner while in jail, and

not merely on his age or apprehensions of the victims and witnesses.

(There is no doubt that liberty is important, even that of a person charged with

crime but it is important for the courts to recognise the potential threat to the

life and liberty of victims/witnesses, if such accused is released on bail.)

Issue : In this case wife of deceased victim preferred Appeal against order granting

Bail to accused persons by Hon'ble Allahabad High Court. The case against

accused persons was registered u/s 3 (1) of the U.P. Gangster and Anti-Social

Activities (Prevention) Act, 1986.

Held : While allowing the appeal, Hon'ble Apex Court referred to law laid down in

catena of judgments and reiterated that following factors should be considered at

the time of grant/refusal of bail :

(i) Whether there was a prima facie or reasonable ground to believe

that the accused had committed the offence;

(ii) Nature and gravity of accusations;

6. Satish @ Sabbe Vs. The State of Uttar Pradesh.

2020 (4) PLJR (SC) 111.

7. Sudha Singh Vs. State of Uttar Pradesh, 2021 SCC

OnLine SC 342

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JURIS RAY

(iii) Severity of the punishment in the event of a conviction;

(iv) Danger of the accused absconding or fleeing, if granted bail;

(v) Character, behaviour, means, position and standing of the accused;

(vi) Likelihood of repetition of the offence;

(vii) Reasonable apprehension of the witnesses being influenced; and

(viii) Danger of justice being thwarted by grant of bail.

Hon'ble Apex Court also observed that “There is no doubt that liberty is

important, even that of a person charged with crime but it is important for the

courts to recognise the potential threat to the life and liberty of victims/witnesses,

if such accused is released on bail.”

______________

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JURIS RAY

(VIII) Section 438 Cr.P.C.

8. Sushila Aggarwal Vs. State (NCT of Delhi), (2020) 5

SCC 1

(Protection granted to a person under Section 438 CrPC should not

invariably be limited to a fixed period )

Issues : “(1) Whether the protection granted to a person under Section 438 Cr.P.C.

should be limited to a fixed period so as to enable the person to surrender before

the Trial Court and seek regular bail.

(2) Whether the life of an anticipatory bail should end at the time and stage when

the accused is summoned by the court.”

Held : Regarding Question 1, this Court holds that the protection granted to a

person under Section 438 CrPC should not invariably be limited to a fixed period;

it should enure in favour of the accused without any restriction on time. Normal

conditions under Section 437(3) read with Section 438(2) should be imposed; if

there are specific facts or features in regard to any offence, it is open for the court to

impose any appropriate condition (including fixed nature of relief, or its being tied

to an event), etc.

«As regards the second question referred to this Court, it is held that the life

or duration of an anticipatory bail order does not end normally at the time

and stage when the accused is summoned by the court, or when charges are

framed, but can continue till the end of the trial. Again, if there are any

special or peculiar features necessitating the court to limit the tenure of

anticipatory bail, it is open for it to do so.

«This Court, in the light of the above discussion in the two judgments, and in

the light of the answers to the reference, hereby clarifies that the following

need to be kept in mind by courts, dealing with applications under Section

438 CrPC:

«? Consistent with the judgment in Gurbaksh Singh Sibbia v. State of Punjab

[Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC

(Cri) 465] , when a person complains of apprehension of arrest and

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JURIS RAY

approaches for order, the application should be based on concrete facts

(and not vague or general allegations) relatable to one or other specific

offence. The application seeking anticipatory bail should contain bare

essential facts relating to the offence, and why the applicant reasonably

apprehends arrest, as well as his side of the story. These are essential for

the court which should consider his application, to evaluate the threat or

apprehension, its gravity or seriousness and the appropriateness of any

condition that may have to be imposed. It is not essential that an

application should be moved only after an FIR is filed; it can be moved

earlier, so long as the facts are clear and there is reasonable basis for

apprehending arrest.

«It may be advisable for the court, which is approached with an application

under Section 438, depending on the seriousness of the threat (of arrest) to

issue notice to the Public Prosecutor and obtain facts, even while granting

limited interim anticipatory bail.

«Nothing in Section 438 CrPC, compels or obliges courts to impose

conditions limiting relief in terms of time, or upon filing of FIR, or recording

of statement of any witness, by the police, during investigation or inquiry,

etc. While considering an application (for grant of anticipatory bail) the

court has to consider the nature of the offence, the role of the person, the

likelihood of his influencing the course of investigation, or tampering with

evidence (including intimidating witnesses), likelihood of fleeing justice

(such as leaving the country), etc. The courts would be justified — and

ought to impose conditions spelt out in Section 437(3) CrPC [by virtue of

Section 438(2)]. The need to impose other restrictive conditions, would

have to be judged on a case-by-case basis, and depending upon the

materials produced by the State or the investigating agency. Such special or

other restrictive conditions may be imposed if the case or cases warrant, but

should not be imposed in a routine manner, in all cases. Likewise,

conditions which limit the grant of anticipatory bail may be granted, if they

are required in the facts of any case or cases; however, such limiting

conditions may not be invariably imposed.

«Courts ought to be generally guided by considerations such as the nature

and gravity of the offences, the role attributed to the applicant, and the facts

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of the case, while considering whether to grant anticipatory bail, or refuse

it. Whether to grant or not is a matter of discretion; equally whether and if

so, what kind of special conditions are to be imposed (or not imposed) are

dependent on facts of the case, and subject to the discretion of the court.

«Anticipatory bail granted can, depending on the conduct and behaviour of

the accused, continue after filing of the charge-sheet till end of trial.

«An order of anticipatory bail should not be “blanket” in the sense that it

should not enable the accused to commit further offences and claim relief of

indefinite protection from arrest. It should be confined to the offence or

incident, for which apprehension of arrest is sought, in relation to a specific

incident. It cannot operate in respect of a future incident that involves

commission of an offence.

_____________________

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JURIS RAY

9. Aparna Bhat and Ors. State of Madhya Pradesh and

Ors. (18.03.2021 - SC) : MANU/SC/0193/2021

Vs.

(Bail conditions and orders should avoid reflecting stereotypical or

patriarchal notions about women and their place in society, and must

strictly be in accordance with the requirements of the Code of Criminal

Procedure)

Issue : The brief facts of the case are that the Accused, neighbour of the victim,

entered her house and caught hold of the her hand, and allegedly attempted to

harass her sexually. Accordingly, case was registered at Police Station, for the

offences punishable Under Sections 452, 354A3, 323 and 506 of the Indian Penal

Code . After completion of investigation a charge sheet was filed. The Accused

filed an application Under Section 438 of Code of Criminal Procedure, 1973

seeking pre-arrest bail. The High Court, by the impugned order, even while

granting bail to the applicant imposed condition that accused along with his wife

shall visit the house of the victim with Rakhi and a box of sweets and request the

her to tie the Rakhi band to him with the promise to protect her to the best of his

ability for all times to come. Accused was also required to tender Rs. 11,000/- to

the victim as a customary ritual and also to tender Rs. 5,000/- to the son of the

victim for purchase of clothes and sweets. The impugned conditions, as imposed

by Hon'ble High Court were challenged in PIL before Hon'ble Supreme Court.

Held : “Using rakhi tying as a condition for bail, transforms a molester into a

brother, by a judicial mandate. This is wholly unacceptable, and has the effect of

diluting and eroding the offence of sexual harassment. The act perpetrated on the

survivor constitutes an offence in law, and is not a minor transgression that can be

remedied by way of an apology, rendering community service, tying a rakhi or

presenting a gift to the survivor, or even promising to marry her, as the case may be.

The law criminalizes outraging the modesty of a woman. Granting bail, subject to

such conditions, renders the court susceptible to the charge of re-negotiating and

mediating justice between confronting parties in a criminal offence and

perpetuating gender stereotypes.”

While setting aside the bail conditions so imposed by Hon'ble High Court, their

Lordships issued following directions:

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(a) Bail conditions should not mandate, require or permit contact between the

Accused and the victim. Such conditions should seek to protect the

complainant from any further harassment by the Accused;

(b) Where circumstances exist for the court to believe that there might be a

potential threat of harassment of the victim, or upon apprehension

expressed, after calling for reports from the police, the nature of protection

shall be separately considered and appropriate order made, in addition to a

direction to the Accused not to make any contact with the victim;

(c) In all cases where bail is granted, the complainant should immediately be

informed that the Accused has been granted bail and copy of the bail order

made over to him/her within two days;

(d) Bail conditions and orders should avoid reflecting stereotypical or

patriarchal notions about women and their place in society, and must

strictly be in accordance with the requirements of the Code of Criminal

Procedure. In other words, discussion about the dress, behavior, or past

"conduct" or "morals" of the prosecutrix, should not enter the verdict

granting bail;

(e) The courts while adjudicating cases involving gender related crimes,

should not suggest or entertain any notions (or encourage any steps)

towards compromises between the prosecutrix and the Accused to get

married, suggest or mandate mediation between the Accused and the

survivor, or any form of compromise as it is beyond their powers and

jurisdiction;

(f) Sensitivity should be displayed at all times by judges, who should ensure

that there is no traumatization of the prosecutrix, during the proceedings,

or anything said during the arguments, and

(g) Judges especially should not use any words, spoken or written, that would

undermine or shake the confidence of the survivor in the fairness or

impartiality of the court.

______________

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JURIS RAY

INDIAN EVIDENCE ACT

(Mentally disabled girl is not in a position to understand 'good' or 'bad',

conviction based upon medical evidence r/w ocular testimony, despite

contradictions is sustainable.)

Facts : In this case prosecution story was that mother of prosecutrix discovered her pregnancy. The prosecutrix told her mother that when she used to go to jungle to graze goats and cattle, Accused also used to go to jungle to graze cattle and goats. The prosecutrix told her mother that three-four months ago, Accused had sexual intercourse with her forcibly and without her consent and the Accused threatened the prosecutrix not to disclose the incident to anyone. Due to fear and due to forgetting the same and further due to mental weakness, she did not disclose about the incident to anyone including her mother. That the prosecutrix was got medically examined and as per the Medical Officer the prosecutrix was carrying a pregnancy of 31 weeks. Her age was stated to be 19 years. Prosecutrix was alleged to be mentally retarded. She was medically examined at IGMC, Shimla as well as PGI, Chandigarh. Prosecutrix gave birth to a female child. As per DNA report, Accused was the biological father of the female child. On trial Accused was acquitted. However, in appeal Hon'ble High Court reversed the acquittal and convicted the accused u/s 376 IPC

Held : Hon'ble Supreme Court after discussing law as laid down in catena of judgments and after considering other relevant facts of the case held Now so far as the submission on behalf of the Accused that there are contradictions in the statement of PW11-Dr. Ramesh Kumar and PW22-Dr. Rama Malhotra that she was not knowing 'Hindi' and that she was only knowing 'Phari' and therefore in view of such contradictions the benefit of doubt must go in favour of the Accused is concerned, the aforesaid aspect has been explained by PW22 in her cross-examination. In the cross-examination, PW22-Dr. Rama Malhotra has specifically stated that the language is not material in the tests because these are independent of language. From the medical evidence, it emerges that IQ 62 falls in the category of 'mild mental retardation'. It has also emerged that the mental status and IQ are determined on the basis of the injuries and activities. IQ of a person can be known on the basis of the questions, activities and the history of a patient. Therefore, even if there might be some contradictions with respect to language known by the victim, in that case also, it cannot be said to be the major contradictions to disbelieve the entire medical evidence on the mental status of the victim. Therefore, the High Court is justified in reversing the order of acquittal and convicting the Accused for the offences under Sections 376 & 506 Indian Penal Code.

(I) Section 3 r/w Section 118 & 119

10. Chaman Lal The State of Himachal Pradesh AIR

2021 SC 46

Vs.

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JURIS RAY

(II) Section 32

11. Jayamma and Ors. State of Karnataka (07.05.2021 -

SC) : MANU/SC/0347/2021, Cr. Appeal No. 758/2010

Vs.

(It is unsafe to convict accused alone on basis of dying declaration)

Issue : In this case deceased and accused, both having common name 'Jayamma'

were having long enmity despite being close relatives. As per the case of

prosecution accused Jayamma with others had after pouring kerosene oil upon

deceased Jayamma put her on death by fire. Deceased was brought to hospital with

80% burn injuries. Her dying declaration was recorded by police officer. There was

an endorsement by doctor at the foot of the dying declaration that she was in fit

state of mind. During the trial most of the prosecution witnesses turned hostile.

Ld. Trial Court considered it unsafe to convict accused/appellant on the basis of

dying declaration alone. In appeal Hon'ble High Court reversed the acquittal of

Appellants and while relying upon dying declaration convicted the appellants.

Held: In appeal before Hon'ble Apex Court, while referring to catena of judgments

regarding admissibility and probative value of dying declaration, held that dying

declaration in the present case was not safe to be relied upon and it was unsafe to

convict appellants alone on its basis. Hon'ble Apex Court held the dying

declaration unreliable for following reasons:-

Firstly, the narration of events in the dying declaration were found so accurate, that

even a witness in the normal state of mind, cannot be expected to depose with such

precision. Although it was stated that deceased was questioned by the Police

officer, the purported dying declaration was found not in a questions and answers

format. The direct or indirect dominance of the Police Officer appeared to have

influenced the answers only in one direction.

Secondly, the injured victim was an illiterate old person and it appeared beyond

human probabilities that she would have been able to narrate the minutes of the

incident with such a high degree of accuracy.

Thirdly, there was sufficient evidence on record that the victim had been

administered highly sedative painkillers. Owing to 80% burn injuries suffered by

the victim on all vital parts of the body, it can be legitimately inferred that she was

reeling in pain and was in great agony and the possibility of her being in a state of

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delusion and hallucination cannot be completely ruled out. It was observed that the

doctor made the endorsement that the victim was in a fit state of mind to make the

statement 'after' the statement was recorded and not 'before' thereto -- being the

normal practice. It was further observed that faculties of the injured had been

drastically impaired and instead of making statement in an informative form she

had apparently endorsed what the Police Officer intended to. Their Lordships also

observed that I.O did not deem it appropriate to call a Judicial or Executive

Magistrate to record such statement, for the reasons best known to himself.

Fourthly, a serious contradiction between the statement of Doctor and witness was

noticed in respect of the nature of burn injuries suffered on different body parts of

the victim. While the doctor acknowledges that burn injuries included the hands of

the victim, the police officer claims that her hands were safe and she could put her

thumb impression. The thumb impression was observed to be very scrupulously

and the same appeared to be absolutely natural.

Fifthly, and most importantly the police officer candidly admits that he did not

seek an endorsement from the doctor as to whether the injured was in a fit state of

mind to make a statement, before he proceeded to record the statement. Both the

police officer as well as the doctor were found to have tried to cover up this serious

lacuna by referring to the purported oral endorsement of the doctor.

Sixthly, the alleged motive for the homicidal death was found highly doubtful.

There was no evidence, and the prosecution made no effort to verify the truth in the

statement that the Appellants poured kerosene and lit the victim on fire only. It was

also observed that the incident touching motive was denied by the prosecution

witness and two of them stated that victim committed suicide.

The Seventh reason which was found to dissuade from relying upon the dying

declaration was the conduct of the parties, i.e., a natural recourse expected to

happen. Had it been a case of homicidal death, and the victim's sonand her

daughter-in-law had witnessed the occurrence, then in all probabilities, they

would have, while making arrangement to take the injured to hospital, definitely

attempted to lodge a complaint to the police. Contrarily, the evidence of the doctor

and the police officer suggest that while the son, daughter-in-law and neighbour of

the deceased were present in the hospital, none approached the police to report

such a ghastly crime. It was found difficult to accept that the son and daughter-in-

law of the deceased were won over by the Accused persons within hours of the

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occurrence. This unusual conduct and behaviour was observed leading support to

the parallel version that the victim might have committed suicide.

The Eighth reason not to accept the contents of purported dying declaration was

observed by their Lordships was the fact that victim, Jayamma was brought to the

Civil Hospital at 12.30 a.m. on 22.09.1998. She succumbed to her burn injuries

after almost 30 hours later at 5:30 am on 23.09.1998. It was neither the case of

prosecution nor it so stated by relevant witnesses that soon after recording her

statement she became unconscious or went into coma. The prosecution, therefore,

had sufficient time to call a Judicial/Executive Magistrate to record the dying

declaration. It is common knowledge that such Officers are judicially trained to

record dying declarations after complying with all the mandatory pre-requisites,

including certification or endorsement from the Medical Officer that the victim was

in a fit state of mind to make a statement. Hon'ble Court held that the law does not

compulsorily require the presence of a Judicial or Executive Magistrate to record a

dying declaration or that a dying declaration cannot be relied upon as the solitary

piece of evidence unless recorded by a Judicial or Executive Magistrate. It was

observed that it is only as a Rule of prudence, and if so permitted by the facts and

circumstances, the dying declaration may preferably be recorded by a Judicial or

Executive Magistrate so as to muster additional strength to the prosecution case.

The Appeal was accordingly allowed and Appellants were acquitted.

____________

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JURIS RAY

(III) Section 65B

12. Arjun P. Khotkar Kailash K. Gorantyal & Ors.,

(2020)7SCC1

Vs.

(Certificate as required u/s 65(B) (4) Indian Evidence Act is must for

admissibility of secondary electronic evidence)

Held :

(a) Anvar P.V. v. P.K. Basheer, AIR 2015 SC 180, as clarified by us hereinabove, is

the law declared by this Court on Section 65B of the Evidence Act. The

judgment in Tomaso Bruno vs State of U.P., 2015 ( 2 ) PLJR 234 being per

incuriam, does not lay down the law correctly. Also, the judgment in SLP

(Crl.) No. 9431 of 2011 reported as Shafhi Mohammad VS state of Himachal

Pradesh. 2018 ( 2 ) PLJR 250 & 2018 (2) PLJR 23 reported as, do not lay

down the law correctly and are therefore overruled.

(b) The clarification referred to above is that the required certificate Under

Section 65B(4) is unnecessary if the original document itself is produced.

This can be done by the owner of a laptop computer, computer tablet or even

a mobile phone, by stepping into the witness box and proving that the

concerned device, on which the original information is first stored, is owned

and/or operated by him. In cases where the "computer" happens to be a part

of a "computer system" or "computer network" and it becomes impossible to

physically bring such system or network to the Court, then the only means of

providing information contained in such electronic record can be in

accordance with Section 65B(1), together with the requisite certificate

Under Section 65B(4). The last sentence in Anvar P.V. (supra) which reads as

"...if an electronic record as such is used as primary evidence under Section

62 of the Evidence Act..." is thus clarified; it is to be read without the words

"Under Section 62 of the Evidence Act,..." With this clarification, the law

stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited.

(c) The general directions issued in paragraph 62 (supra) shall hereafter be

followed by courts that deal with electronic evidence, to ensure their

preservation, and production of certificate at the appropriate stage. These

directions shall apply in all proceedings, till Rules and directions Under

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JURIS RAY

Section 67C of the Information Technology Act and data retention

conditions are formulated for compliance by telecom and internet service

providers.

(d) Appropriate Rules and directions should be framed in exercise of the

Information Technology Act, by exercising powers such as in Section 67C,

and also framing suitable Rules for the retention of data involved in trial of

offences, their segregation, Rules of chain of custody, stamping and record

maintenance, for the entire duration of trials and appeals, and also in regard

to preservation of the meta data to avoid corruption. Likewise, appropriate

Rules for preservation, retrieval and production of electronic record, should

be framed as indicated earlier, after considering the report of the

Committee constituted by the Chief Justice's Conference in April, 2016.

_________

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JURIS RAY

INDIAN PENAL CODE

(Consent given by prosecutrix need to be considered on the basis of

evidence and attending circumstances)

Under section 90 IPC, consent given under a misconception of fact is no consent

in the eye of law . But the misconception of fact has to be in proximity of time to

the occurrence. The Hon'ble SC in Uday vs State of Karnataka (2003) has held

that, “…the consensus of judicial opinion is in favour of the view that the

consent given prosecutrix to sexual intercourse with a person with whom she is

deeply in love on a promise that he would marry her on a later date cannot be

said to be given under a misconception of fact . A false promise is not a fact

within the meaning of the code .”

Whether the consent given by the prosecutrix to sexual intercourse is voluntary

or whether it is given under misconception of fact? This should be considered

by the courts on consideration of the evidence and surrounding circumstances ,

before reaching a conclusion.

____________

(I) Section 90 and 376 IPC

13. Maheshwar Tigga State of Jharkhand

2020(4)PLJR(SC)100

Vs.

| 106 |

JURIS RAY

(II) Section 304-B IPC : 113B Indian Evidence Act

14. Sandeep Kumar State of Uttarakhand, AIR 2021 SC

691

Vs.

(If un-natural death is not proved conviction u/s 304B IPC cannot sustain)

Facts : In this case the appellants, who were charged with the offence punishable

under Section 304B of the Penal Code, 1860 stood acquitted of the said charge by

learned sessions judge, Haridwar. However, in appeal carried by the complainant,

the verdict of acquittal was set aside and the appellants after conviction under

section 304-B of IPC stand sentenced to undergo imprisonment for life.

Held : As already noticed, in this case, apart from the fact that prosecution has not

been able to establish that the cause of death was unnatural, the case setup about

the demand of Rs. 10 lakhs by accused appears to be riddled with irreconcilable

contradictions. Neither the post-mortem nor the Forensic Lab Report shows any

poisoning. No poison has been recovered at all from the house of the appellants.

There are no marks of injury at all on the deceased. Even the material (wiper)

recovered, according to prosecution, and which allegedly was used to clean vomit of

the deceased, did not disclose any poison. The statement of Medical Practitioner

(DW2) that the deceased was having weight of 39 kilograms and weight below

normal as on 11.05.2010 cannot be ignored. Equally, the evidence of DW4 that the

Doctor has prescribed medicine for Anaemia because the deceased had told about

Tuberculosis earlier also, cannot be ignored. Evidence as to advice to the deceased

in 2007 to undergo blood test and the x-ray, to confirm whether TB has totally cured

or not and that the patient did not bring any x-ray or blood report, cannot be

overlooked. Section 113B of Evidence Act may not apply in this case for the reason

that in order that Section 113B applies, there must be evidence that soon before

the death of the person, the person, who is alleged to have caused death, treated

the deceased with cruelty or harassed her or in connection with a demand of dowry.

We have noticed the state of the evidence in this regard. We are also of the view that

there was no justification at all for the High Court, in the facts of this case, to have

overturned acquittal by the Trial Court.

_____________

| 107 |

JURIS RAY

15. Gurmeet Singh State of Punjab, Criminal Appeal

No. 1731 of 2010,Decided On: 28.05.2021:

MANU/SC/0359/2021

Vs.

(Soon before death does not mean immediately before death)

Issue :1. Whether 'soon before death' in section 304B IPC mean immediately

before death ?

2. Whether conviction u/s 304B IPC cannot be sustained in absence of charge u/s

498A IPC ?

Held : 1. The next important ingredient which needs to established is the existence

of dowry demand "soon before her death". This Court in catena of judgments have

held that, "soon before" cannot be interpreted to mean "immediately before",

rather the prosecution has to show that there existed a "proximate and live link"

between the cruelty and the consequential death of the victim. [See Satbir Singh v.

State of Haryana (supra); Kans Raj v. State of Punjab, MANU/SC/0296/2000 :

(2000) 5 SCC 207; Rajinder Singh v. State of Punjab, MANU/SC/0210/2015 :

(2015) 6 SCC 477]

2. Offences Under Section 498-A and Section 304-B, Indian Penal Code are distinct

in nature. Although cruelty is a common thread existing in both the offences,

however the ingredients of each offence are distinct and must be proved separately

by the prosecution. If a case is made out, there can be a conviction under both the

sections. (Law as laid down in Kamesh Panjiyar v. State of Bihar,

MANU/SC/0076/2005 : (2005) 2 SCC 388 was referred and relied upon by Hon'ble

Bench)

«In this case Hon'ble Apex Court again reiterated law relating to section 313

Cr.P.C. and issued following directions :-

«It is a matter of grave concern that, often, Trial Courts record the statement

Under Section 313, Code of Criminal Procedure in a very casual and cursory

manner, without specifically questioning the Accused as to his defense. It

ought to be noted that the examination of an Accused Under Section 313,

Code of Criminal Procedure cannot be treated as a mere procedural

formality, as it based on the fundamental principle of fairness. This

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JURIS RAY

aforesaid provision incorporates the valuable principle of natural justice

"audi alteram partem" as it enables the Accused to offer an explanation for

the incriminatory material appearing against him. Therefore, it imposes an

obligation on the court to question the Accused fairly, with care and caution.

«The Court must put incriminating circumstances before the Accused and

seek his response. A duty is also cast on the counsel of the Accused to

prepare his defense since the inception of the trial with due caution, keeping

in consideration the peculiarities of Section 304-B, Indian Penal Code read

with Section 113-B, Evidence Act.

«Section 232, Code of Criminal Procedure provides that, "If, after taking the

evidence for the prosecution, examining the Accused and hearing the

prosecution and the defence on the point, the Judge considers that there is

no evidence that the Accused committed the offence, the Judge shall record

an order of acquittal". Such discretion must be utilized by the Trial Courts as

an obligation of best efforts.

«Once the Trial Court decides that the Accused is not eligible to be acquitted

as per the provisions of Section 232, Code of Criminal Procedure, it must

move on and fix hearings specifically for 'defence evidence', calling upon the

Accused to present his defense as per the procedure provided Under Section

233, Code of Criminal Procedure, which is also an invaluable right provided

to the Accused.

«In the same breath, Trial Courts need to balance other important

considerations such as the right to a speedy trial. In this regard, we may

caution that the above provisions should not be allowed to be misused as

delay tactics.

«Apart from the above, the presiding Judge should follow the guidelines laid

down by this Court while sentencing and imposing appropriate punishment.

____________

| 109 |

JURIS RAY

N.D.P.S. ACT

(On sole ground that informant/police officer and investigating officer is

same person, accused is not entitled for acquittal)

Issue : Whether in case investigation was conducted by informant/police officer

who himself was complainant, trial was vitiated and in such situation, Accused was

entitled to acquittal ? (Law laid down in Mohan Lal Vs State of Punjab (2018) 17

SCC 627 reconsidered by Constitutional Bench)

Held : In a case where the informant himself is the investigator, by that itself

cannot be said that the investigation is vitiated on the ground of bias or the like

factor. The question of bias or prejudice would depend upon the facts and

circumstances of each case. Therefore, merely because the informant is the

investigator, by that itself the investigation would not suffer the vice of unfairness

or bias and therefore on the sole ground that informant is the investigator, the

Accused is not entitled to acquittal. The matter has to be decided on a case to case

basis. A contrary decision of this Court in the case of Mohan Lal v. State of Punjab

(2018) 17 SCC 627 and any other decision taking a contrary view that the informant

cannot be the investigator and in such a case the Accused is entitled to acquittal are

not good law and they are specifically overruled.

____________

Section 53

16. Mukesh Singh Vs. State (Narcotic Branch of Delhi),

AIR 2020 SC 4794

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JURIS RAY

JUVENILE JUSTICE (CARE AND

PROTECTION OF CHILDREN) ACT, 2015

(Offence which does not provide minimum sentence of 7 years imprisonment

cannot be treated a heinous offence. )

ISSUE : Whether an offence prescribing a maximum sentence of more than 7 years

imprisonment but not providing any minimum sentence, or providing a minimum

sentence of less than 7 years, can be considered to be a 'heinous offence' within the

meaning of Section 2(33) of The Juvenile Justice (Care and Protection of Children)

Act, 2015.

Held : “In view of the above discussion we dispose of the appeal by answering the

question set out in the first part of the judgment in the negative and hold that an

offence which does not provide a minimum sentence of 7 years cannot be treated to

be an heinous offence. However, in view of what we have held above, the Act does

not deal with the 4th category of offences viz., offence where the maximum

sentence is more than 7 years imprisonment, but no minimum sentence or

minimum sentence of less than 7 years is provided, shall be treated as 'serious

offences' within the meaning of the Act and dealt with accordingly till the

Parliament takes the call on the matter.”

Hon'ble Apex Court further reiterated that name of Juvenile should not be

disclosed in the judgment in the light of section 74 of the Act.

______________________

(I) Section 2(33)

17. Shilpa Mittal State of NCT of Delhi and Ors.

2020(1)PLJR (SC)352

Vs.

| 111 |

JURIS RAY

(II) Section 107

18. In Re: Contagion of COVID 19 Virus in Children

Protection Homes (07.06.2021 - SC Order) :

MANU/SCOR/17751/2021

Hon'ble Supreme Court issued following directions in ref. to section 107 of

Juvenile Justice (care and protection) of Children Act, 2015:

(1) The State Governments/Union Territories are directed to continue

identifying the children who have become orphans or lost a parent after

March, 2020 either due to Covid-19 or otherwise and provide the data on the

website of the NCPCR without any delay. The identification of the affected

children can be done through Childline (1098), health officials, Panchayati

Raj Institutions, police authorities, NGOs etc.

(2) The DCPU is directed to contact the affected child and his guardian on

receipt of information about the death of the parent/parents. Assessment

shall be made about the suitability and willingness of the guardian to take

care of the child. The DCPU should ensure that adequate provisions are

made for ration, food, medicine, clothing etc. for the affected child.

Financial assistance to which the disconsolate child is entitled to under the

prevailing schemes by the Central Government and the State

Governments/Union Territories should be provided without any delay.

(3) The DCPO should furnish his phone number and the name and phone

number of the local official who can be contacted by the guardian and the

child.

There should be a regular follow up by the concerned authorities with the

child at least once in a month.

(4) If the DCPO is of the prima facie opinion that the guardian is not suitable to

take care of the child, he should produce the child before the CWC

immediately.

(5) CWC should provide for the essential needs of the child during the

pendency of the inquiry without fail. The inquiry should be completed

| 112 |

JURIS RAY

expeditiously. CWC shall ensure that all financial benefits to which the child

is entitled are provided without any delay.

(6) The State Governments/Union Territories are directed to make provisions

for continuance of education of the children both in Government as well as in

private schools.

(7) The State Governments/Union Territories are directed to take action

against those NGOs/individuals who are indulging in illegal adoptions.

(8) Wide publicity should be given to the provisions of the JJ Act, 2015 and the

prevailing schemes of the Union of India and the State Governments/Union

Territories which would benefit the affected children.

(9) DPCO shall take the assistance of government servants at the Gram

Panchayat level to monitor the welfare of the disconsolate children who are

devastated by the catastrophe of losing their parent/parents.

_________

| 113 |

JURIS RAY

N.I.A. ACT

The pertinent question before the court was whether the exclusive jurisdiction to

extend time under NIA Act vested only in the Special Court and not in the Ilaqa

Magistrate, despite the fact that it was the State Police Agency that investigated

these offences. The SC observed that the Scheme of the NIA Act is that offences

under the enactments contained to the Schedule to the Act are now to be tried

exclusively by Special Courts set up under that Act. These may be set up by the

Central Government under Section 11 or by the State Government under Section

22 of the Act. On the facts of the present case, we are concerned with Section 22 as

Special Courts have been set up within the State of Punjab by a notification dated

10.06.2014. the said notification has been issued under Section 22(1) of the NIA

Act. What is important to note is that under , reference to the Central Agency in

Section 13(1) is to be construed as a reference to the investigation agency of the

State Government – namely, the State police in this case. Thereafter, what is

important to note is that notwithstanding anything contained in the Code, the

jurisdiction conferred on a Special Court shall, until a Special Court is designated

by the State Government, be exercised only by the Court of Sessions of the Division

in which such offence has been committed vide sub-section (3) of Section 22; and

by sub-section (4) of Section 22, on and from the date on which the Special Court is

designated by the State Government, the trial of any offence investigated by the

State Government under the provisions of the NIA Act shall stand transferred to

that Court on and from the date on which it is designated. Section 13(1) of the NIA

Act, which again begins with a non-obstante clause which is notwithstanding

anything contained in the Code, read with Section 22(2)(ii), states that every

scheduled offence that is investigated by the investigation agency of the State

Government is to be tried exclusively by the Special Court within whose local

jurisdiction it was committed. When these provisions are read along with Section

2(1)(d) and the provisos in 43-D(2) of the UAPA, the Scheme of the two Acts, which

are to be read together, becomes crystal clear. Under the first proviso in Section 43-

D(2)(b), the 90 day period indicated by the first proviso to Section 167(2) of the

Code can be extended up to a maximum period of 180 days if “the Court” is

(I) Section 11 and 22 of NIA Act

19. Bikramjit Singh The State Of Punjab 2020 (4)

PLJR 263 (SC)

Vs.

| 114 |

JURIS RAY

satisfied with the report of the public prosecutor indicating progress of

investigation and specific reasons for detention of the accused beyond the period of

90 days. “The Court”, when read with the extended definition contained in Section

2(1)(d) of the UAPA, now speaks of the Special Court constituted under Section 22

of the NIA Act. What becomes clear, therefore, from a reading of these provisions is

that for all offences under the UAPA, the Special Court alone has exclusive

jurisdiction to try such offences. This becomes even clearer on a reading of Section

16 of the NIA Act which makes it clear that the Special Court may take cognizance

of an offence without the accused being committed to it for trial upon receipt of a

complaint of facts or upon a police report of such facts. What is equally clear from a

reading of Section 16(2) of the NIA Act is that even though offences may be

punishable with imprisonment for a term not exceeding 3 years, the Special Court

alone is to try such offence – albeit in a summary way if it thinks it fit to do so. On a

conspectus of the above mentioned provisions, Section 13 read with Section

22(2)(ii) of the NIA Act, in particular, the argument of the learned counsel

appearing on behalf of the State of Punjab based on Section 10 of the said Act has no

legs to stand on since the Special Court has exclusive jurisdiction over every

Scheduled Offence investigated by the investigating agency of the State. under the

aforesaid Scheme what becomes clear is that so far as all offences under the UAPA

are concerned, the Magistrate's jurisdiction to extend time under the first proviso

in Section 43-D(2)(b) is non-existent, “the Court” being either a Sessions Court, in

the absence of a notification specifying a Special Court, or the Special Court itself.

_______________________

| 115 |

JURIS RAY

1

Patel Engineering Ltd.

Vs. North Easter Electric

Power Corporation Ltd.

(2020)7SCC167

Section 34 :An arbitral award can be set aside under

Section 34 if it is patently illegal or perverse

2

Silpi Industries and Ors.

Vs. Kerala State Road

Transport Corporation

and Ors. (29.06.2021 - SC)

: MANU/SC/0390/2021

Section 43

When there is a provision for filing counter-

claim and set-off which is expressly inserted

in Section 23 of the 1996 Act, there is no

reason for curtailing the right of the

Respondent for making counter-claim or set-

off in proceedings before the Facilitation

1

(1) R. Janakiammal and

Ors. Vs. S.K.

Kumarasamy (Deceased)

through Legal

Representatives and Ors.,

Civil Appeal No. 1537 &

1538 of 2016 (30.06.2021 -

SC) :

Order XXIII Rule 3 &

3-A

Separate suit challenging consent decree is

not maintainable, party disputing

compromise decree on the ground it being

void or voidable has to approach same

court

1

Satish Chandra Ahuja Vs.

Sneha Ahuja 2020 (4)

PLJR 211 (SC)

Section 2(s), 17 and

19 of DV Act

Wife is entitled to a claim of right to

residence in a shared household belonging

to relatives

IndexARBITRATION AND CONCILIATION ACT, 1996

Council.)

CODE OF CIVIL PROCEDURE

MANU/SC/0392/2021

HINDU SUCCESSION ACT

LIMITATION ACT

FAMILY COURT ACT

PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT

1Rajnesh Vs. Neha and

Ors. 2021(1)PLJR (SC) 1

Section 7 of Family

Courts Act r/w

section 125 cr.p.c

Guidelines framed for procedure to be

adopted in maintenance matters

1

State of Madhya Pradesh

Vs. Bherulal 2020 (4) PLJR

318 (SC)

Section 5

Where there are inordinate delays the

Government or State authorities must

pay for wastage of judicial time which has

its own value. Such costs can be recovered

from the officers responsible

1

Vineeta Sharma Vs.

Rakesh Sharma (2020) 9

SCC 1

Section 6

Daughter’s Right in coparcenary is by birth,

it is not necessary that father coparcener

should be living as on 9.9.2005

Sl.No Case Title/Citation Section Finding

Synopsis of Recent Judgements of

Supreme Court (Civil)

| 117 |

JURIS RAY

COMPILATION OF LATEST SUPREME COURT JUDGEMENTS (CIVIL)

1.

ARBITRATION AND CONCILIATION ACT, 1996

(An arbitral award can be set aside under Section 34 if it is patently illegal or

perverse)

FACTS: The Arbitral Tribunal held that the Petitioner was entitled to payment of

extra lead and the rate for extra lead for transportation of sand and boulders from

Government approved quarries to the work site for package works shall be decided

in terms of Contract Agreement. Application for setting aside the Award so passed

was moved by affected party/respondent u/s Section 34 of the Arbitration and

Conciliation Act, 1996. Said application was dismissed and Award(s) was upheld

before the Additional Deputy Commissioner (Judicial) challenging the arbitral

awards. Appeals under Section 37 of the Act before the High Court were allowed

and the award(s) passed by Arbitral Tribunal and order passed by Additional

Deputy Commissioner (judicial) were set aside. Petitioner thereafter filed SLP

challenging the order passed by High Court. The SLP was also dismissed.

Thereafter, petitioners filed Review petitions before High Court, which were also

dismissed. The matter was again challenged before Hon'ble Supreme Court.

Held: While dismissing the petitions Hon'ble Apex Court held that an arbitral

award can be set aside under Section 34 if it is patently illegal or perverse. It was

further observed that -The High Court rightly followed the test set out in case of

Associate Builders v. Delhi Development Authority, AIR 2015 SC 620.

Section 34:

Patel Engineering Ltd. North Easter Electric Power

Corporation Ltd. (2020)7SCC167

Vs.

| 118 |

JURIS RAY

Section 43

2. Silpi Industries and Ors. Kerala State Road

Transport Corporation and Ors. (29.06.2021 - SC) :

MANU/SC/0390/2021

Vs.

(When there is a provision for filing counter-claim and set-off which is expressly

inserted in Section 23 of the 1996 Act, there is no reason for curtailing the right of the

Respondent for making counter-claim or set-off in proceedings before the Facilitation

Council.)

ISSUE : (i) Whether the provisions of Indian Limitation Act, 1963 is applicable to

arbitration proceedings initiated Under Section 18(3) of Micro, Small and Medium

Enterprises Development Act, 2006?; and

(ii) Whether, counter claim is maintainable in such arbitration proceedings?

HELD: With regard to first issue, namely, applicability of Limitation Act, 1963 to

the arbitration proceedings initiated under provisions of Micro, Small and Medium

Enterprises Development Act, 2006, we need to notice certain relevant Sections of

the Act. As per Section 15 of the said Act, where supplier supplies any goods or

renders any services to any buyer, the buyer shall make payment on or before the

agreed date between the parties in writing or where there is no agreement, before

the appointed day. Section 16 deals with date from which and rate of interest

payable in the event of not making the payment. The recovery mechanism for the

amount due is covered by Sections 17 and 18 of the said Act. If any party has a

dispute with regard to amount due Under Section 17, a reference is required to be

made to the Micro and Small Enterprises Facilitation Council. On such reference,

the Council is empowered to conduct conciliation in the matter or seek assistance

of any institution or centre providing alternate dispute resolution services by

making a reference to such institution for conducting conciliation. If the

conciliation is not successful, as contemplated Under Section 18(2) of the said Act,

same stands terminated Under Section 18(3) of the said Act. Thereafter, the

Council shall either itself take up the dispute for arbitration or refer it to any

institution or centre providing alternate dispute resolution services for such

arbitration and the provisions of Arbitration and Conciliation Act, 1996 are made

applicable as if the arbitration was in pursuance of arbitration agreement between

| 119 |

JURIS RAY

the parties, under Sub-section (1) of Section 7 of the 1996 Act. Applicability of

Limitation Act, 1963 to the arbitrations is covered by Section 43 of the 1996 Act.

The High Court, while referring to abovesaid provisions and the judgment of this

Court in the case of Andhra Pradesh Power Coordination Committee and Ors. v.

Lanco Kondapalli Power Ltd. and Ors. MANU/SC/1244/2015 : (2016) 3 SCC 468

has held that the Limitation Act, 1963 is applicable to the arbitrations covered by

Section 18(3) of the 2006 Act. A reading of Section 43 itself makes it clear that the

Limitation Act, 1963 shall apply to the arbitrations, as it applies to proceedings in

court. When the settlement with regard to a dispute between the parties is not

arrived at Under Section 18 of the 2006 Act, necessarily, the Micro and Small

Enterprises Facilitation Council shall take up the dispute for arbitration under

Section 18(3) of the 2006 Act or it may refer to institution or centre to provide

alternate dispute resolution services and provisions of Arbitration and Conciliation

Act 1996 are made applicable as if there was an agreement between the parties

under Sub-section (1) of Section 7 of the 1996 Act. In view of the express provision

applying the provisions of the Limitation Act, 1963 to arbitrations as per Section 43

of the Arbitration and Conciliation Act, 1996, we are of the view that the High Court

has rightly relied on the judgment in the case of Andhra Pradesh Power

Coordination Committee MANU/SC/1244/2015: (2016) 3 SCC 468 and held that

Limitation Act, 1963 is applicable to the arbitration proceedings Under Section

18(3) of the 2006 Act. Thus, we are of the view that no further elaboration is

necessary on this issue and we hold that the provisions of Limitation Act, 1963 will

apply to the arbitrations covered by Section 18(3) of the 2006 Act. We make it clear

that as the judgment of the High Court is an order of remand, we need not enter

into the controversy whether the claims/counter claims are within time or not. We

keep it open to the primary authority to go into such issues and record its own

findings on merits.

Regarding second issue – it was held - “……….When Section 18(3) makes it clear

that in the event of failure by the Council Under Section 18(2) if proceedings are

initiated Under Section 18(3) of the 1996 Act(sic 2006), the provisions of 1996 Act

are not only made applicable but specific mention is made to the effect as if the

arbitration was in pursuance to an arbitration agreement referred to in Sub-section

(1) of Section 7 of the 1996 Act. When there is a provision for filing counter-claim

and set-off which is expressly inserted in Section 23 of the 1996 Act, there is no

reason for curtailing the right of the Respondent for making counter-claim or set-

| 120 |

JURIS RAY

off in proceedings before the Facilitation Council.

It is also further to be noted that if we do not allow the counter-claim made by the

buyer in the proceedings arising out of claims made by the seller, it may lead to

parallel proceedings before the various fora. On one hand, in view of beneficial

legislation, seller may approach the Facilitation Council for claims, in the event of

failure of payment by the buyer under provisions of 2006 Act, at the same time, if

there is no separate agreement between the parties for any arbitration in a given

case, buyer may approach the civil court for making claims against the seller, or

else if there is an agreement between the parties for arbitration in the event of

dispute between the parties, parties may seek appointment of arbitrator. At the

same time if the seller is covered by definition under micro, small and medium

enterprises, seller may approach the Facilitation Council for making claims under

the provisions of Micro, Small and Medium Enterprises Development Act, 2006. In

such event, it may result in conflicting findings, by various forums.

_______________

| 121 |

JURIS RAY

CODE OF CIVIL PROCEDURE

Order XXIII Rule 3 & 3-A

(Separate suit challenging consent decree is not maintainable, party disputing

compromise decree on the ground it being void or voidable has to approach same

court)

ISSUE: The point for determination in the above appeals was - whether the suit

seeking to declare the decree, is sham and nominal, ultra-vires, collusive,

unsustainable, invalid, unenforceable and not binding on the Plaintiff, is

maintainable in the light of the provisions contained in Order 23 Rule 3 of the Code

of Civil Procedure and Order 23 Rule 3-A of the Code of Civil Procedure?

HELD: “The above judgments contain a clear ratio that a party to a consent decree

based on a compromise to challenge the compromise decree on the ground that the

decree was not lawful, i.e., it was void or voidable has to approach the same court,

which recorded the compromise and a separate suit challenging the consent

decree has been held to be not maintainable. In Suit No. 1101 of 1987, the Plaintiff

prayed for a declaration declaring that the decree passed in O.S. No. 37 of 1984 is

sham and nominal, ultra vires, collusive, unsustainable invalid, unenforceable and

not binding on the Plaintiffs. We have noted the grounds as contained in the plaint

to challenge the consent decree in foregoing paragraphs from which it is clear that

the compromise, which was recorded on 06.08.1984 was sought to be termed as not

lawful, i.e., void or voidable. On the basis of grounds which have been taken by the

Plaintiff in Suit No. 1101 of 1987, the only remedy available to the Plaintiff was to

approach the court in the same case and satisfy the court that compromise was not

lawful. Rule 3A was specifically added by the amendment to bar separate suit to

challenge the compromise decree which according to legislative intent to arrest

the multiplicity of proceedings. We, thus, do not find any error in the judgment of

trial court and High Court holding that Suit No. 1101 of 1987 was barred Under

Order XXIII Rule 3A

1. R. Janakiammal and Ors. S.K. Kumarasamy

(Deceased) through Legal Representatives and Ors., Civil

Appeal No. 1537 & 1538 of 2016 (30.06.2021 - SC) :

MANU/SC/0392/2021

Vs.

| 122 |

JURIS RAY

HINDU SUCCESSION ACT

(Daughter's Right in coparcenary is by birth, it is not necessary that father

coparcener should be living as on 9.9.2005).

Issue: In this case questions relating to right of daughter to be a coparcener were

raised before the Hon'ble Supreme Court, and considering the contradicting view

expressed by the Hon'ble Supreme Court in the previous two decisions, i.e.,

Phulavati case and Danamma case, the issue was referred to a larger bench

constituting three judges of the Hon'ble Supreme Court.

Whether the amended Section 6 of the Act of 2005 requires the coparcener

to be alive as on 09.09.2020, for the daughter to claim rights in the coparcenary

property?

Whether the amended Section 6 of the Act of 2005 is prospective,

retrospective or retroactive?

Held: The Bench answered the reference as follows:

(I) The provisions contained in substituted Section 6 of the Hindu Succession

Act, 1956 confer status of coparcener on the daughter born before or after

amendment in the same manner as son with same rights and liabilities.

(ii) The rights can be claimed by the daughter born earlier with effect from

9.9.2005 with savings as provided in Section 6(1) as to the disposition or

alienation, partition or testamentary disposition which had taken place

before 20th day of December, 2004.

(iii) Since the right in coparcenary is by birth, it is not necessary that father

coparcener should be living as on 9.9.2005.

(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu

Succession Act, 1956 as originally enacted did not bring about the actual

partition or disruption of coparcenary. The fiction was only for the purpose of

ascertaining share of deceased coparcener when he was survived by a

Section 6

5. Vineeta Sharma Rakesh Sharma (2020) 9 SCC 1Vs.

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JURIS RAY

female heir, of Class-I as specified in the Schedule to the Act of 1956 or

male relative of such female. The provisions of the substituted Section 6 are

required to be given full effect. Notwithstanding that a preliminary decree

has been passed the daughters are to be given share in coparcenary equal to

that of a son in pending proceedings for final decree or in an appeal.

(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of

1956, a plea of oral partition cannot be accepted as the statutory recognised

mode of partition effected by a deed of partition duly registered under the

provisions of the Registration Act, 1908 or effected by a decree of a court.

However, in exceptional cases where plea of oral partition is supported by

public documents and partition is finally evinced in the same manner as if it

had been affected by a decree of a court, it may be accepted. A plea of

partition based on oral evidence alone cannot be accepted and to be rejected

out rightly.

_____________

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JURIS RAY

LIMITATION ACT

(Where there are such inordinate delays that the Government or State authorities

must pay for wastage of judicial time which has its own value. Such costs can be

recovered from the officers responsible)

In this case it was observed that “Supreme Court India cannot be a

place for the Governments to walk in when they choose ignoring the period of

limitation prescribed. If the Government machinery is so inefficient and incapable

of filing appeals/petitions in time, the solution may lie in requesting the

Legislature to expand the time period for filing limitation for Government

authorities because of their gross incompetence. That is not so. Till the Statute

subsists, the appeals/petitions have to be filed as per the Statues prescribed. No

doubt, some leeway is given for the Government inefficiencies but the sad part is

that the authorities keep on relying on judicial pronouncements for a period of time

when technology had not advanced and a greater leeway was given to the

Government. The reason for such an inordinate delay was stated to be only “due to

unavailability of the documents and the process of arranging the documents”. A

preposterous proposition is sought to be propounded that if there is some merit in

the case, the period of delay is to be given a go-by. If a case is good on merits, it will

succeed in any case. It is really a bar of limitation which can even shut out good

cases. This does not, of course, take away the jurisdiction of the Court in an

appropriate case to condone the delay. The object appears to be to obtain a

certificate of dismissal from the Supreme Court to put a quietus to the issue and

thus, say that nothing could be done because the highest Court has dismissed the

appeal. It is to complete this formality and save the skin of officers who may be at

default that such a process is followed. Such a practice and process has been

strongly deprecated. The purpose of coming to this Court is not to obtain such

certificates and if the Government suffers losses, it is time when the concerned

Section 5

6. State of Madhya Pradesh Bherulal 2020 (4) PLJR 318 (SC)

Vs.

| 125 |

JURIS RAY

officer responsible for the same bears the consequences. The irony is that in none of

the cases any action is taken against the officers, who sit on the files and do

nothing. It is presumed that the Court will condone the delay and even in making

submissions, straight away counsels appear to address on merits without referring

even to the aspect of limitation. Thus in all matters, where there are such

inordinate delays that the Government or State authorities must pay for wastage of

judicial time which has its own value. Such costs can be recovered from the officers

responsible.

_______________

| 126 |

JURIS RAY

MAINTENANCE (FAMILY COURTS

ACT/CR.P.C/D.V.ACT)

(Guidelines framed for procedure to be adopted in maintenance matters)

Issue: Delay in enforcement of maintenance orders. In the present case, interim

maintenance Under Section 125 Code of Criminal Procedure filed by wife remained

pending before the Courts for seven years and the difficulties encountered in the

enforcement of orders passed by the Courts. Considering various difficulties

caused due to overlapping jurisdiction(s) etc., Hon'ble Apex Court framed

guidelines, which mandatorily are to be followed in maintenance matters.

Directions :

In view of the foregoing discussion as contained in Part B - I to V of this judgment,

we deem it appropriate to pass the following directions in exercise of our powers

Under Article 142 of the Constitution of India:

(a) Issue of overlapping jurisdiction

To overcome the issue of overlapping jurisdiction, and avoid conflicting orders

being passed in different proceedings, it has become necessary to issue directions

in this regard, so that there is uniformity in the practice followed by the Family

Courts/District Courts/Magistrate Courts throughout the country. We direct that:

(i) where successive claims for maintenance are made by a party under

different statutes, the Court would consider an adjustment or set-off, of the

amount awarded in the previous proceeding/s, while determining whether

any further amount is to be awarded in the subsequent proceeding;

(ii) it is made mandatory for the Applicant to disclose the previous proceeding

and the orders passed therein, in the subsequent proceeding;

(iii) if the order passed in the previous proceeding/s requires any modification or

variation, it would be required to be done in the same proceeding.

Section 7 of Family Courts Act r/w section 125 cr.p.c.

7. Rajnesh Neha and Ors. 2021(1)PLJR (SC) 1Vs.

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JURIS RAY

(b) Payment of Interim Maintenance

The Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I,

II and III of this judgment, as may be applicable, shall be filed by both

parties in all maintenance proceedings, including pending proceedings

before the concerned Family Court/District Court/Magistrates Court, as

the case may be, throughout the country.

(c) Criteria for determining the quantum of maintenance

For determining the quantum of maintenance payable to an applicant, the

Court shall take into account the criteria enumerated in Part B - III of the

judgment.

The aforesaid factors are however not exhaustive, and the concerned Court

may exercise its discretion to consider any other factor/s which may be

necessary or of relevance in the facts and circumstances of a case.

(d) Date from which maintenance is to be awarded

We make it clear that maintenance in all cases will be awarded from the date

of filing the application for maintenance, as held in Part B - IV above.

(e) Enforcement/Execution of orders of maintenance

For enforcement/execution of orders of maintenance, it is directed that an

order or decree of maintenance may be enforced Under Section 28A of the

Hindu Marriage Act, 1956 (sic1955); Section 20(6) of the D.V. Act; and

Section 128 of Code of Criminal Procedure, as may be applicable. The order

of maintenance may be enforced as a money decree of a civil court as per the

provisions of the Code of Civil Procedure, more particularly Sections 51, 55,

58, 60 r.w. Order XXI.

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JURIS RAY

PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT

Section 2(s), 17 and 19 of DV Act:8. Satish Chandra Ahuja Sneha Ahuja 2020 (4) PLJR

211 (SC)

Vs.

(Wife is entitled to a claim of right to residence in a shared household belonging to in-

laws also)

Facts: This case raised important questions of law pertaining to the interpretation

and operation of the Domestic Violence Act, 2005 (“the Act”). In this case, Hon'ble

Supreme Court explicitly laid down that a wife is entitled to a claim of right to

residence in a shared household belonging to relatives of her husband. The

definition of shared household given under Section 2(s) as noticed above beginning

with expression “shared household means a household where the person

aggrieved lives or at any stage has lived in a domestic relationship either singly or

along with the respondent and includes... The section uses both the expressions

“means and includes” The use of both the expressions “means and includes” in

Section 2(s) of Act, 2005, thus, clearly indicate the legislative intent that the

definition is exhaustive and shall cover only those which fall within the purview of

definition and no other. The definition can be divided in two parts, first, which

follows the word “means” and second which follows the word “includes”. The

second part which follows “includes” can be further sub-divided in two parts. The

first part reads “shared household means a household where the person aggrieved

has lived or at any stage has lived in a domestic relationship either singly or along

with the respondent”. Thus, first condition to be fulfilled for a shared household is

that person aggrieved lives or at any stage has lived in a domestic relationship. The

second part sub- divided in two parts is- (a) includes such a household whether

owned or tenanted either jointly by the aggrieved person and the respondent and

owned or tenanted by either of them in respect of which either the aggrieved

person or the respondent or both jointly or singly have any right, title, interest or

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JURIS RAY

equity and (b)includes such a household which may belong to the joint family of

which the respondent is a member, irrespective of whether the respondent or the

aggrieved person has any right, title or interest in the shared household. From the

above definition, following is clear:- (i) it is not requirement of law that aggrieved

person may either own the premises jointly or singly or by tenanting it jointly or

singly; (ii) the household may belong to a joint family of which the respondent is a

member irrespective of whether the respondent or the aggrieved person has any

right, title or interest in the shared household; and (iii) the shared household may

either be owned or tenanted by the respondent singly or jointly. The words “lives or

at any stage has lived in a domestic relationship” have to be given its normal and

purposeful meaning. The living of woman in a household has to refer to a living

which has some permanency. Mere fleeting or casual living at different places shall

not make a shared household. The intention of the parties and the nature of living

including the nature of household have to be looked into to find out as to whether

the parties intended to treat the premises as shared household or not. As noted

above, Act 2005 was enacted to give a higher right in favour of woman. The Act of

2005 has been enacted to provide for more effective protection of the rights of the

woman who are victims of violence of any kind occurring within the family. The Act

has to be interpreted in a manner to effectuate the very purpose and object of the

Act. Section 2(s) read with Sections 17 and19 of Act, 2005 grants an entitlement in

favour of the woman of the right of residence under the shared household

irrespective of her having any legal interest in the same or not. The court also

observed that the right to residence under Section 19 is not an indefeasible right of

residence in shared household especially when the daughter-in-law is pitted

against aged father-in-law and mother-in-law. The senior citizens in the evening of

their life are also entitled to live peacefully not haunted by marital discord between

their son and daughter-in-law. While granting relief both in application under

Section 12 of Act, 2005 or in any civil proceedings, the Court has to balance the

rights of both the parties. It was observed that (i) The definition of shared

household given in Section 2(s) cannot be read to mean that shared household can

only be that household which is household of the joint family of which husband is a

member or in which husband of the aggrieved person has a share. (ii) The

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JURIS RAY

judgement of Supreme Court in S.R. Batra Vs. Taruna Batra (2007) 3 SCC 169 has

not correctly interpreted Section 2(s) of Act, 2005 and the judgment does not lay

down the correct law.

Held: The following propositions of law were laid down by the Supreme Court

(i) The pendency of proceedings under Act, 2005 or any order interim or final

passed under D.V. Act under Section 19 regarding right of residence is not an

embargo for initiating or continuing any civil proceedings, which relate to the

subject matter of order in terim or final passed in proceedings under D.V. Act, 2005.

(ii) The judgment or order of criminal court granting an interim or final relief under

Section 19 of D.V. Act, 2005 are relevant within the meaning of Section 43 of the

Evidence Act and can be referred to and looked into by the civil court.

(iii) A civil court is to determine the issues in civil proceedings on the basis of

evidence, which has been led by the parties before the civil court.

(iv) In the facts of the present case, suit filed in civil court for mandatory and

permanent injunction was fully maintainable and the issues raised by the appellant

as well as by the defendant claiming a right under Section 19 were to be addressed

and decided on the basis of evidence, which is led by the parties in the suit.

_____________

| 131 |

JURIS RAY

Sl.No Name of Parties Case No.Date of

JudgementCitation

INDEX

BIHAR PROHIBITION & EXCISE ACT

1Amit Kumar, Vs. The State of Bihar Through the

Commissioner Excise Department, State of Bihar,

Patna and others

Civil Writ Jurisdiction Case

No.5611 of 202126-05-2021 (2021)1 PLJR 1121

2Ranjit Kumar Bhagat Vs.The State of Bihar and

others Criminal Revision No.8 of 2005 06.03.2020

05.03.2020

10.01.2020

07.02.2020

29.05.2020

20.10.2020

15.04.2021

(2020) 2 PLJR 868

3 Shikha Kumari Vs. The State of BiharCriminal Writ Jurisdiction Case

No. 1355 of 20192020 (2) PLJR 15

4Kundan Kumar Vs.State of Bihar Through District

Magistrate Nawada

Cr.Writ Jurisdiction Case No.

1703 of 2019

2020 SCC OnLine

Pat 43

5 Aman Kumar Vs. State of Bihar Cr. Appeal (SJ) No. 1827 of 2017 20-04-2020 2020(2) PLJR, 505

6Nasruddin Mian @ Lalu @ Nasiruddin Vs.The

State Of Bihar

Death Reference No. 1 of 2019,

Death Reference No. 3 of 2018

Criminal Appeal (DB) Nos. 425

Criminal Appeal (DB) Nos. 888 of 2018

and 499 of 201921.06.2021 MANU/BH/0394/2021

7 State of Bihar Vs.Onkar Nath Singh @ SheruDeath reference No. 3 of 2016 with

Cr. APP (DB) 587 of 2016

2020 SCC OnLine

Pat 188

8 Amir Singh Vs. The State Of Bihar Criminal Appeal (DB) No.130 of

20132020 (3) PLJR 575

9 The State Of Bihar Vs. Ajit Kumar 2020 (4) PLJR 439

10 Shivjee Sah and Another Vs. State of Bihar Criminal Appeal (SJ) No. 4273 of

2018

2021 SCC OnLine

Pat 786

11 Gopal Gupta Vs.The State of Bihar and Ors Criminal Writ Jurisdiction Case

no. 394 of 202024-03-2021 MANU/BH/0263/2021

CRIMINAL PROCEDURE CODE

JUVENILE JUSTICE (CARE & PROTECTION OF CHILDREN) ACT

INDIAN PENAL CODE

12Khushi Kumari Vs. The State of Bihar through the Principal Secretary Home (Police) Patna

Cr. WJC 408 of 2021

2021 SCC OnLine

Pat 1352:

MANU/BH/0455/2021

13 Amar Kumar @ Amar Yadav Vs. The State of Bihar Criminal Revision No.50 of 2020 2021(1) PLJR 666

14 Sumit Kumar Vs. State of Bihar Criminal Misc. No. 82844 of 2019 2021 (1) PLJR 683

15 Nitish Kumar v. State of Bihar Criminal Revision No. 1255 of 20192020 SCC OnLine

Pat 2227

1629. Sanjay Kamkar @ Sanjay Kumar Vs. State of

Bihar

CR. APP (SJ) No.1479 of 2019 2021 (1) PLJR 793

NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT

Synopsis of Recent Judgements of

Patna High Court (Criminal)

INDIAN EVIDENCE ACT

25.03.2021

25.07.2020

05.02.2021

17.06.2021

09.02.2021

| 132 |

17 Nagina Choudhary and Ors. Vs. State of Bihar Criminal Appeal (SJ) Nos. 2060

and 2521 of 201726.04.2021 MANU/BH/0474/2021

18The Economic Offences unit through The

Superintendent of Police Vs.Aruna Kumari

Govt. Appeal (SJ) No.- 18 with IA

No. 1 of 201923.01.2020 2020(1) PLJR, 902

PREVENTION OF CORRUPTION ACT

POCSO ACT

| 133 |

JURIS RAY

SYNOPSIS OF RECENT PATNA HIGH COURT JUDJEMENTS (CRIMINAL)

BIHAR PROHIBITION & EXCISE ACT, 2016

(All confiscation proceedings under section 58 of the Bihar Prohibition and

Excise Act 2016 must be concluded within a period of ninety days.)

Facts: The present case was instituted praying for issuing appropriate writ

directing the respondents to release the vehicle seized under section 56 of the

Bihar Prohibition and Excise Act 2016.

The following four categories of procedural discrepancies were brought to the

notice of the court:-

(a) despite seizure, no proceedings for confiscation under Section 58 of

the Bihar Prohibition and Excise Act 2016 were initiated;

(b) even where the proceedings were initiated they could not be

concluded within a reasonable time;

(c) the parties after obtaining interim relief for release of “things” did

not participate in the confiscatory proceedings;

(d) upon conclusion of proceedings, the order of confiscation was neither

communicated nor the parties made aware of such fact, thus

precluding them from filing appeal under Section 92 and Revision

under Section 93 of the Act;

(e) Lastly the proceedings initiated under Section 92/93 were not

concluded within a reasonable time either on account of inaction on

?Section 56, 58

1. Amit Kumar, The State of Bihar Through the Commissioner Excise Department, State of Bihar, Patna and others

Civil Writ Jurisdiction Case No.5661 of 2021

26-05-2021

Vs.

| 134 |

JURIS RAY

the part of the authority(s) or on account of non-cooperation of the

private parties, be it for whatever reasons.

Held: Referring to its previous direction issued in the following cases

«Md. Shaukat Ali Vs. The State of Bihar CWJC No. 20598 of 2019

«Umesh Sah Versus the State of Bihar & Ors CWJC No.17165 of 2019.

«Bunilal Sah @ Munilal Sah CWJC No.2050 of 2020.

The court further directed that all proceedings under Section 58 of the

Bihar Prohibition and Excise Act 2016 with respect to confiscation

proceedings must positively be initiated / concluded within a period of

ninety days from the date of appearance of the parties. it was further

directed that Appeal/Revision, if any, be also decided within a period of

thirty days from the date of initiation, failing which the “things”

(vehicle/property/ etc.) shall be deemed to have been released.

________________

| 135 |

JURIS RAY

CRIMINAL PROCEDURE

(The term wife includes a woman who has been divorced or has obtained

divorce from her husband but has not remarried. As such she cannot be

disentitled from her maintenance on the ground that a decree for divorce has

been granted on the ground of desertion.)

Facts: The present revision was filed for setting aside the judgement wherein the

revisionist was asked to pay Rs. 1500 per month as maintenance to his wife on the

ground that he has obtained a decree of divorce against his wife from the court of

learned Additional District Judge, Delhi vide judgment dated 14.05.2003 on the

ground of desertion. It was also submitted that the wife was working as Nyaya Mitra

and as such she had sufficient earnings to meet her expenses and was not entitled

to claim maintenance.

Held: Dismissing the petition the court held that explanation (b) to sub-section 1 of

125 Cr.P.C. provides that a 'wife includes a woman who has been divorced by or has

obtained divorce from her husband but has not remarried', therefore even a

divorced wife who is unable to maintain herself is entitled to claim maintenance.

The wife's claim for maintenance under the first part of Section 125 Cr. P.C. is based

on the subsistence of marriage while claim for maintenance of a divorced wife is

based on the foundation provided by Explanation (b) to Sub-section (1) of Section

125 Cr. P.C. If the divorced wife is unable to maintain herself and if she has not

remarried, she will be entitled to maintenance allowance.

_____________

CODE

?Section 125

2. Ranjit Kumar Bhagat Vs. The State of Bihar and others

(2020) 2 PLJR 868

Criminal Revision No.8 of 2005, 06-03-2020

| 136 |

JURIS RAY

?Section 164, 483

3. Shikha Kumari Vs. The State of Bihar

2020 (2) PLJR 15

Criminal Writ Jurisdiction Case No. 1355 of 2019,

(An illegal and improper order of remand passed by a Judicial Magistrate of

competent jurisdiction cannot be reviewed in a petition seeking the writ of

habeas corpus)

Facts: The petitioner/girl eloped from her home with a person namely Dhanjeet

and married him. Her elopement resulted in FIR being lodged by her father

alleging that his 16 year old minor daughter has been kidnapped by one Dhanjeet

and his family members.

Upon recovery of petitioner/victim she disclosed in her 164 cr.pc statement that

she was having affair with Dhanjeet Yadav since last two years. She had left her

parents house out of her own volition and married him in a temple at Kothi High

School and she wants to live with him. Based on her medical report and documents

relating to her age the victim was found minor and she was sent to aftercare home

upon her refusal to go with her parents. Aggrieved by the said order the victim girl

preferred a writ of habeas corpus which was being heard by the division bench of

the Patna High Court.

It was argued that this case is fully covered with the decision of this Court in

Sahebi Khatoon @ Sahebi vs. State of Bihar & Ors.Cr.WJC No.991 of 2010 (.and the

order impugned where by the petitioner has been directed to be kept in an After

Care Home is illegal, a writ in the nature of habeas corpus would be maintainable

before this Court. The Division Bench doubted the correctness of an order passed

by another Division Bench in Sahebi Khatoon @ Sahebi vs. State of Bihar & Ors.

Therefore the matter was referred to a larger Bench regarding the issue. While

referring the case to Hon'ble the Chief Justice to constitute a larger Bench, the

Division Bench framed the following issues to be decided by larger Bench :-

(1) Whether, in a petition for issuance of writ of habeas corpus, an order

passed by a Magistrate could be assailed and set-aside;

(2) Whether an order of remand passed by a Judicial Magistrate could be

reviewed in a petition seeking the writ of habeas corpus, holding such

order of remand to be an illegal detention;

| 137 |

JURIS RAY

(3) Whether an improper order could be termed/viewed as an illegal

detention;

(4) Whether under Section 483 Cr.P.C., a Division Bench of this Court,

exercising constitutional powers of issuing prerogative writs,

especially writ of habeas corpus, could issue general directions to all

the Magistrates/Chief Judicial Magistrates of the State of Bihar for

releasing such women and permitting them to go along with the

people of their choice, who are minors and are brought before them

(Magistrates) with the charge of their having married some body of

their own volition.

Held: A full bench comprising Hon'ble Justice Ashwani kumar Singh, Justice

Ashutosh Kumar and Justice Birendra Kumar held “a writ of habeas corpus would

not be maintainable, if the detention in custody is as per judicial orders passed by a

Judicial Magistrate or a court of competent jurisdiction, even if it's an improper or

illegal order of judicial remand it cannot be termed/viewed as an illegal detention.

However, an illegal or irregular exercise of jurisdiction by a Magistrate passing an

order of remand can be cured by way of challenging the legality, validity and

correctness of the order by filing appropriate proceedings before the competent

revisional or appellate court under the statutory provisions of law. Such an order of

remand passed by a Judicial Magistrate of competent jurisdiction cannot be

reviewed in a petition seeking the writ of habeas corpus”

It was also observed that a writ petition cannot be issued where a person is

committed to jail custody by a competent court by an order which prima facie does

not appear to be without jurisdiction or wholly illegal. It was further held that in a

writ seeking a writ of habeas corpus, the provision of Section 483 of the CrPC

cannot be invoked for passing a general direction and setting aside the order

passed by the Chief Judicial Magistrate. He contended that in case of any illegality

in the judicial order of remand, the High Court by issuing a writ of certiorari may

quash the same. However, while exercising the constitutional power of prerogative

writ especially writ of habeas corpus, this Court cannot issue general direction in

exercise of powers under Section 483 of the CrPC to all the Magistrates/Chief

Judicial Magistrate of the State of Bihar for releasing such women and permitting

them to go along with person of their choice, who are minors and are brought before

them with the charge of their having married some body on their own volition.

| 138 |

JURIS RAY

?SECTION 167(2)

4. Kundan Kumar State of Bihar Through

District Magistrate Nawada Cr.WJC No. 1703 of

2019 ,2020 SCC OnLine Pat 43

Vs.

(Remand orders should not be passed in a routine manner and a magistrate

remanding an accused for the first time and thereafter on every subsequent

time must record his satisfaction for doing so.)

Facts: The petitioner Kundan Kumar was arrested in connection with Nardiganj

P.S. Case no.193 of 2017 dated 27.11.2017 for the offences punishable under

section 364, 506/34 of the Indian Penal Code. The petitioner was arrested on

17.11.2019 approximately two years after the institution of FIR. After his arrest on

17.11.2019, the petitioner was produced before the concerned Magistrate. The

magistrate at the time of remand and at every subsequent occasion when the

accused was produced before him drew a routine order failing to record his

satisfaction, as is mandated in law.

Held: Referring to the exhaustive guidelines issued by the Apex Court in the

Landmark case of Arnesh Kumar v. State of Bihar [(2014) 8 SCC 273] wherein it

was observed that recording of satisfaction was not an empty formality; Honorable

The Patna High Court observed that Judicial Officers are not mere post officers,

they are mandatorily required to examine the case record, and record their

satisfaction with regard to the need and requirement of the accused to be detained

and kept in custody, which regretfully, as is evident was never done in the instant

case. In a very casual and a perfunctory manner, the accused-writ petitioner's case

for remand was dealt with by the Judicial Officer (s) dealing with the file right from

17.11.2019, till 04.01.2020.

The court was pleased to summon the entire judicial record and perused the

remand orders from 17.11.2019 to 4.1.2020 threadbare. Upon examination the

court further observed “what shocks us is the manner in which the Judicial

Officers are passing routine orders, which is evident from the subsequent orders

dated 29.11.2019, 11.12.2019, 23.12.2019 and 04.01.2020. In none of these

orders, there is a whisper that the accused be detained or sent to jail, much less

record any satisfaction”.

On the basis of these facts and observations, the detention of Petitioner Kundan

Kumar was found illegal and he was directed to be released forthwith.

Additionally, The Registrar General of Patna High Court was directed to forthwith

communicate this order to the Director, Bihar Judicial Academy, Patna for

imparting training to the Judicial Officers as to how the officers must deal with the

remand applications.

| 139 |

JURIS RAY

?Section 317

5. Aman Kumar State of Bihar 2020 (2) PLJR, 505

Cr. Appeal (SJ) No. 1827 of 2017

Date of Judgement: 20-04-2020

Vs.

(Spliting of record for trial U/s 317(2) of Cr.P.C. against an accused is a

rule, whereas, the joint trial is an exception, which need to be exercised

judicially, based on the facts and circumstances of each case, coupled with

other mitigating factors.)

Facts: The present case is a referred matter from the Single Bench. A judgement

was passed by the Single Bench of The Hon'ble Patna High Court in Cr. Misc.

39878/2014 that, in cases where offence is U/s 304-B IPC, the concerned court

shall not permit the splitting of the cases unless all the accused are arrested or

granted regular bail or anticipatory bail, it shall not be split at all and trial shall be

comprehensive, and the officer who deviates and acts other than this, shall be

liable to be proceeded against.

Held: Once a person is before a Court against whom the police has submitted

charge-sheet recommending his trial and there are other accused person or

persons against whom the police proceedings are pending, then, in such scenario,

the Court concerned may bifurcate the case, by creating an extra record of the same

case, called the 'split-up record' in common parlance, and proceed with the main

original case against person/persons before the Court against whom it has taken

cognizance. The accused before the Court has an inalienable right that matters be

taken to their logical conclusion qua him as soon as possible. The accused cannot be

made to bear the brunt of waiting or suffer on account of the prosecution failing to

complete investigation and bring the other accused before the Court or the accused

themselves evading the process of law. To push upon the shoulders of an accused,

an extra burden of this kind, would negate the cherished Constitutional goal of

fairness and justice. Discretion to decide on splitting-up is to be judicially

exercised, based on the facts and circumstances of each case, coupled with other

mitigating factors. Such, discretion given to the Court concerned does not suffer

from the vice of Constitutional infirmity. Hence, the Reference stands answered

accordingly.

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JURIS RAY

?Section 354,366

6. Nasruddin Mian @ Lalu @ Nasiruddin

The State Of Bihar MANU/BH/0394/2021

Death Reference No. 1 of 2019, Criminal Appeal (DB)

Nos. 425 and 499 of 2019, Decided on 21 June, 2021

Vs.

(The judgment should be made by a Judge uninfluenced by his own

imagined norms of the functioning of the society.The finding of fact should be based

on legal testimony and should be based on legal grounds. Neither the finding of fact

nor the decision should be based upon wild suspicion, hypothetical presumption,

surmises and conjectures. A trial court should refrain from making sweeping and

disparaging remarks on the accused in his judgement.)

Facts: The informant Abdul Jabbar filed a written petition that his daughter

Sanjeeda (now deceased) was married to the accused Nasruddin Miyan. However

she was being harassed by her in laws in connection with demand of motorcycle. On

the fateful evening of 20.03.2007, he came to know that the aforesaid accused

persons have killed his daughter on 17.03.2007 by administering poison in her

food because of non-fulfillment of demand of motorcycle and buried her body

without informing him or his family members. Even though the FIR was registered

under sections 304-B and section 201/34 IPC the chargesheet was submitted

under sections 498-A, 306 and 201/34 IPC. During the course of trial the court

altered the charge to Sections 304-B, 302 and 201/34 of the IPC in place of original

charge under Sections 498-A, 306 and 201/34 of the IPC. At the conclusion of trial

the trial court found the accused guilty of the offences charged and sentenced the

husband of the deceased to death terming it as a “rarest of rare case”. The other

accused were sentenced to life imprisonment and fine.

Held: The High Court examined the evidence on record in the light of the

established legal principles and concluded that the trial court has completely

erred in appreciating the evidence and has been swayed by emotions while coming

to a finding of conviction and subsequent sentence. However it is not the finding of

conviction and subsequent sentence which drew the attention of the court rather it

was the reasons assigned by the trial court while coming to such a finding. The trial

court used the words like 'vahsi darinda'; 'Vahsipan and darindagi' for the alleged

acts of the accused. The trial court noted in para 44 of its judgement “ye kehna

atishiyokti nahi hoga ki abhiyukt itne vahsi darinde hain ki ek byahta stree ke

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JURIS RAY

hanste khelte jeewn ko ek motorcycle se bhi kam aanka or apni chahat poori ke liye

uski jeevan leela hi samapt kar di. Aise vahsi darinda per kisi bhi tarah ki

sahanubhuti dikhana khud ko ishwar ke bande na samjhana hoga”

Meaning: The act and overt-act committed by the husband-accused and Deyadin-

accused, who has given strength clear cut towards commission of murder of an

innocent Indian legal wedded wife due to non-fulfilment of demand of dowry even

for a motorcycle, goes against pious and God-fearing persons.

The court thus observed in paragraphs 75 and 76 and 79 that while writing a

judgment, a Judge is required to keep certain basic rules in mind. The supreme

requirement of a judgment is reason, which is the rational to the conclusion.

Reasoning is the mental process through which a Judge reaches to his conclusion.

All conclusions should be supported by reasons duly recorded.

The finding of fact should be based on legal testimony and should be

based on legal grounds. Neither the finding of fact nor the decision

should be based upon wild suspicion, hypothetical presumption,

surmises and conjectures.

Further, while commenting on the conduct of the parties, a Judge is

required to be careful to use sober and restrained language. He

should avoid use of disparaging and derogatory remarks against any

person whose case may be under consideration before him.

It was further observed that a Court while writing judgment has onerous task of

being dispassionate in assessing the evidence. Indulging in trial and error in

arriving at a decision making tends to cloud the cognitive space with the attendant

cognitive biases. The clouded mind then tends to fit in the causal chain to the

prototypes based on biologically and socially evolved capacities; social pressures,

individual motivations and emotions. In making decision a judge is required to

avoid the intuitive/reflexive outcome based on the causal chain of events available

and focus on deliberative aspect of decision making otherwise the judge would tend

to draw illusory correlation between the chain of events and the reflexive outcome.

The decision making requires a certain level of motivation and cognitive capacity of

a judge. A well trained mind of a judge along with self-realization of the available

biases occupying his cognitive space would help a judge avoid the pit falls of

heuristic and avoid distorted thinking leading to a more balanced and rational

outcome.

The judgment under consideration is an example of how not to write a judgment. It

?

?

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JURIS RAY

has repeatedly been emphasized by the Supreme Court that the Courts and Judges

must make a dispassionate assessment of evidence and that the Courts and Judges

should not be swayed by the horror of crime and the character of the person. The

judgment should be made by a Judge uninfluenced by his own imagined norms of

the functioning of the society. The Trial Court ought to have avoided the sweeping

and disparaging remarks against the accused while writing judgement.

(Sentencing is a delicate process which require due application of judicious

mind. It would be a travesty of justice if the Judges are allowed to exercise

discretion in the matter of sentencing in humorous manner.)

Facts: the accused persons were tried under section 302/120B IPC for having

caused the death of one Rajendra Keshri the cousin of the informant. While the

informant had gone to purchase paint from the deceased, three persons riding on

the motorcycle came and stopped their motorcycle in front of the victim's shop. Two

of them got down from the bike, one stood facing road and the other armed with

pistol came and opened indiscriminate firing over Rajendra Keshri. The third

person waited over the motor-cycle and after firing all three escaped. The

informant claimed that to identify the culprit. The injured was taken to Sadar

Hospital where he was declared dead. One of the accused namely Omkar Nath

Singh escaped from judicial custody during trial. The remaining accused were

convicted by judgment dated 29.09.2012 and by order of sentence dated

03.10.2012, all of them were sentenced to rigorous imprisonment for life and a fine

of Rs. 10,000/- under Section 302/34 of the IPC. by judgment dated 12 May, 2016

convicted the sole appellant Onkar Nath Singh @ Sheru Singh for the offence under

Section 302 read with Section 34 of the Penal Code, 1860 and subsection (3) of

Section 27 of the Arms Act. on 16.05.2016, has inflicted the punishment of life

imprisonment against the appellant till his natural life beyond the application of

remission by the appropriate government with a fine of Rs. 1,00,000/- for offence

under Section 303/34 and hanged by the neck till he is dead for the offence under

?Section 366

7. State of Bihar Onkar Nath Singh @ Sheru

2020 SCC OnLine Pat 188

Death reference No. 3 of 2016 with Cr. APP (DB)

587 of 2016

Vs.

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JURIS RAY

sub-section (3) of Section 27 of the Arms. It is worth noting that the mandatory

death sentence under section 27(3) has been declared unconstitutional by the Apex

court In State of Punjab v. Dalbir Sing (2013) 3 SCC 346.

Held: Quashing the conviction and sentence and remanding back the case for fresh

adjudication, the court observed, Sentencing is a delicate process which require

due application of judicious mind. It is true that the Judges exercise discretion in

the process of sentencing. After the Apex Court laying down the principle to be

applied, courts, particularly the trial court, while exercising discretion are

expected to apply scrupulously the rigorous test of “rarest of the rare cases” but

consistency in sentencing process particularly at the level of trial court is

conspicuously lacking.

The Cconstitutional mandate of the rule of law is applicable in the decision

making process and Courts are no exception The Session Courts are not expected to

do only lip service but apply their judicious mind and follow the basic guidelines

laid down by the Apex Court and after balancing the aggravating and mitigating

circumstances choose the sentence. The choice of imposing death sentence

involves competing interest and security of the individual, society and the State

and as such the choice of decision making process is a complicated one. The entire

criminal jurisprudence of sentencing is based on balancing of competing interest of

individual, society and the State; the concept of balancing of aggravating and

mitigating circumstance in the matter of awarding death sentence.

The court further observed that the most disgusting and disturbing part of

the sentence awarded by the Sessions Judge is that he has noted that sub-section

(3) of Section 27 of the Arms Act which provides that mandatory death sentence

has been declared ultra vires and void in the case of State of Punjab v. Dalbir Sing

(2013) 3 SCC 346 yet he has exercised discretion under Section 235(2) of the Code

of Criminal Procedure and claiming that he has been empowered by the Apex Court

while exercising discretion in awarding the sentence.

The court termed such exercise of discretion as judicial insanity reflecting total

ignorance of basic principles, decorum and propriety by the session's court.

Additionally, The Director, Bihar Judicial Academy was directed to formulate a

course of training of all the judicial officers vested with the power of session's trial.

How to exercise judicial discretion and balancing of aggravating and mitigating

circumstances at the same time balance of individual life and personal liberty and

security of the society as well as the State is part of training of all judicial officers.

______________

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JURIS RAY

INDIAN EVIDENCE ACT

(Mere congruity or consistency is not the sole test of truth in the depositions.

Discrepancies in the depositions of witnesses are always normal, however,

honest and truthful they may be. Such discrepancies are due to normal errors

of observation, normal errors of memory due to lapse of time, due to mental

disposition such as shock and horror at the time of occurrence. Material

discrepancies are those which are not normal and not expected of a normal

person.)

Facts: The prosecution case in brief is that the deceased Dharmendra Kumar was

preparing tobacco at 'Shivala' near his house when the appellants, namely, Ranjeet

Singh and Amir Singh, both armed with rifle and Munna Singh armed with piece of

brick, came there and started hurling abuses at the deceased. The appellant Arun

Singh armed with country made pistol also came there. Thereafter, Dharmendra

Singh asked them not to hurl abuses, upon which, the appellant Arun Singh

ordered the others to shoot him, whereupon, the appellant Munna Singh threw

bricks up on Dharmendra Singh and appellant Ranjeet Singh fired from his rifle.

The deceased Dharmendra Singh in order to save himself tried to hide behind the

electric pole, but the appellant Ranjeet Singh fired upon him which hit his right

elbow. Then, the appellant Amir Singh also fired two round of firings from his rifle,

out of which, one hit on his 'Panjara”, as a result of which, he fell down on the

ground and subsequently, he died.

The trial court found all the accused persons guilty of the offences under section

302 IPC and sentenced them to rigorous imprisonment for life. Additionally the

accused Amir Singh and Ranjit Singh were also convicted under section 27(1) Arms

Act and sentenced to rigorous imprisonment for three years and a fine of 5000

rupees. The appellants preferred the said appeal against the said order of

conviction and sentence on the ground that there were serious contradictions and

omissions in the prosecution case as also the prosecution withheld material

witnesses and has failed to prove its case beyond all reasonable doubt.

8. Amir Singh Vs. The State of Bihar 2020 (3) PLJR 575

Criminal Appeal (DB) No.130 of 2013 decided

on 29 May, 2020

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JURIS RAY

Held: Upholding the conviction and sentence, the court observed that it is the duty

of the Court to consider the trustworthiness of evidence on record which inspires

confidence and the same has to be accepted and acted upon and in such a situation

no adverse inference should be drawn from the fact of non-examination of other

witnesses. It has to be seen whether such non-examination of a witness would carry

the matter further so as to affect the evidence of other witnesses and if the evidence

of a witness is really not essential to the unfolding of the prosecution case, it cannot

be considered a material witness.

(A trial Judge should not get swayed with the gravity of crime however

heinous in nature. This is where the Judge's role comes in, to decide

judiciously in removing the husk from the chaff)

To prove the commission of offense beyond reasonable doubt based on

circumstantial evidence, an unbroken chain of circumstances pointing to the guilt

of the accused alone has to be established. It is settled position of law that where

there is no direct or ocular evidence of the crime, the guilt of the accused can be

proved by circumstantial evidence, but then, circumstances from which conclusion

of guilt must be drawn must be fully proved and be conclusive in nature to fully

connect the accused with the crime. All links in the chain of circumstances must be

proved beyond reasonable doubt, the proved circumstances must be consistent

only with the hypothesis of guilt of the accused alone and non-else, as also

inconsistent with his innocence. Where the chain for establishing the case by way of

circumstantial evidence is not linked, in fact, broken repeatedly and as such one

cannot presume specific facts or events based on the preponderance of probability.

A trial Judge should not get swayed with the gravity of crime however heinous in

nature. This is where the Judge's role comes in, to decide judiciously in removing

the husk from the chaff. The Trial Judge should not presume and assume without

discussing, the veracity of fruitfulness of the testimonies of the witnesses, for they

have to depose truthfully; The principle weighing with the Judge is not to apply the

preponderance of probabilities, but beyond a reasonable doubt. In a criminal trial,

the onus to prove criminal charge is on the prosecution and not the accused. It is

9. The State of Bihar Vs. Ajit Kumar

2020 (4) PLJR 439

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JURIS RAY

this principle which the Trial Judge should not forget where he concludes that

"there is nothing available on the case record to disbelieve the prosecution version"

having considered the plea taken by the defence. The defence set up by the accused

is in the nature of mere denial. The mere existence of the confessional statement

cannot weigh with the trial Judge for convicting the accused, unless its relevance or

admissibility is considered and examined. The law of admissibility for a

confessional statement must not only be taken note of but in all probability correctly

applied.

________________

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JURIS RAY

INDIAN PENAL CODE

(The factum of unnatural death in matrimonial home within seven years of

marriage would not by itself suffice to hold the accused persons guilty of the

offence under Section 304-B IPC rather the prosecution has to prove that the

woman was subjected to cruelty or harassment in connection with any

demand for dowry and such cruelty or harassment was soon before her

death. On proof of all these ingredients, the presumption under Section 113-

B of the Evidence Act would arise.)

Facts: The appellants were tried and convicted for having committed offences

under section 304- B of the IPC vide judgment dated 25.09.2018. Accused

Prashant Kumar the husband of the deceased was sentenced to undergo rigorous

imprisonment for 10 years and other accused namely Shivjee Sah and Manju Devi,

the parents of Prashant kumar were sentenced to undergo rigorous imprisonment

for 7 years by the order of sentence dated 29.09.2018. The judgment of conviction

and order of sentence are challenged in appeal. On behalf of the appellants it was

submitted that there is no acceptable evidence of demand of dowry and torture for

the same as alleged by the prosecution. For the first time during trial, some of the

prosecution witnesses claimed that there was further demand of a motorcycle. The

version of the prosecution that the victim was throttled to death was contradicted

by the medical evidence which found a case of hanging. It was also alleged that all

the incriminating facts were not put before the accused at the time of statement

under Section 313 Cr.P.C.

Held: Setting aside the conviction and sentence the court observed; that the

prosecution evidence is very shaky and clumsy to prove the ingredient of demand of

dowry and torture for fulfilment of the said demand. There is no corroboration by

independent witnesses, of any torture to the deceased, nor there is any evidence

that the deceased, made any complaint of demand and torture to her parents nor

the doctor found any external injury on the person of the deceased to corroborate

the claim of the prosecution witnesses that the deceased telephonically informed

?Section 304-B

10. Shivjee Sah and Another Vs. State of Bihar 2021 SCC OnLine Pat 786 Criminal Appeal (SJ) No. 4273 of 2018

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JURIS RAY

that she was bitterly assaulted by the in-laws and after few hours report of her

death was received. Thus, on such evidence conviction would not be safe. It was

further observed that the prosecution cannot be permitted to make improvements

in the allegations at a belated stage of trial for the obvious reason that improvement

of allegation if allowed would open a Pandora' s box and the prosecution would

make any suitable allegation against the accused to harass him.

Taking note of the fact that the examination of the accused under section 313

Cr.P.C. was conducted in a casual and perfunctory manner the court observed:

“Evidently the trial Judge failed in its duty to put specific incriminating material as

to nature of demand and nature of torture allegedly committed by the accused

persons against the deceased. Specific question on nature of demand and nature of

torture was essential. The accused cannot be expected to submit a reasonable

explanation to a vague question. The accused was seriously prejudiced due to non-

specific question as the prosecution had improved the allegation of demand of a

motorcycle for the first time in the Court.”

_______________

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JURIS RAY

JUVENILE JUSTICE ACT

(A child victim of an offence under section 366-A is covered under the

definition of “Child in need of Care and Protection” as contained under

Section 2(14) of the J. J. Act and the police officers as well as the Judicial

officers who are dealing with these kind of cases at the ground level must be

well aware of the legal provisions contained in the various special statutes

dealing with the crime against child.)

Facts: The present writ was filed by the father of the victim girl praying that she be

released from the illegal detention of the accused persons. The girl was eventually

recovered and was brought to Patliputra Police Station, Patna at 05:00 P.M. on

20.12.2020. The statement of the victim girl was recorded on 21.12.2020 by ACJM

XII wherein she disclosed that she had gone with the accused because of the ill

treatment meted out to her by her parents. She expressed her desire to go with her

parents but at the same time expressed apprehension that they may kill her.

Strangely the victim girl eloped once again during the pendency of the writ before

the Honourable court.

Held: Feeling disturbed on finding that there was a blatant disregard to the

specific provisions of law as regards treatment required to be given to a 'child' who

is victim of a crime; the court elaborately discussed the novel provisions of the

Juvenile Justice (Care and Protection of Children) Act, 2015. The Court further

proceeded to consider the safeguards which are provided to such child in the

matter of his/her production before the statutory committee or the court, as the

case may be. The court elaborately discussed the role and responsibility of the

stakeholders and also the procedure as mentioned in chapter VI sections 31, 32,

33, 34, 36, 37 and 39 of the Juvenile Justice (Care and Protection of Children) Act,

2015 read with Chapter IV of the Bihar Juvenile Justice (Care and Protection of

Children) Rules 2017. It was further observed that there is nothing on the record

?Section 2(14)

11. Gopal Gupta Vs. The State of Bihar and Ors

MANU/BH/0263/2021

Criminal Writ Jurisdiction Case no. 394 of 2020

24-03-2021

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JURIS RAY

to show that any interview of the victim girl or interaction with the victim girl was

done to satisfy itself as to whether any offence has been committed against her so

as to find out even prima-facie as to whether the child has been subjected to sexual

abuse and she needs support and assistance psychologically and legally.

The Court directed that the Director, Bihar Judicial Academy shall arrange

training classes for the judicial officers at all levels to sensitize them with the

subject and the laws relating to crime against child and the procedures required to

be followed in such cases.

Additionally it was directed that the Director General of Police (DGP), Bihar to

ensure trainings to the respective members of police force who are involved in

investigation of the cases and/or are likely to be involved in investigation of cases

where victims are girls and child, special trainings are required to be provided to

those police officers from time to time to make them acquainted with the

provisions of law, rights and safeguards of the victim child.

______________

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JURIS RAY

?Section 3

12. Khushi Kmari Vs. The State of Bihar through the

Principal Secretary Home (Police) Patna

2021 SCC OnLine Pat 1352: MANU/BH/0455/2021

Cr. WJC 408 of 2021

(The judicial officers are required to be sensitive towards the rights of the

child and need to take care of them on the principles of parens patriae the

well founded principle under the provisions of Juvenile Justice (care and

protection) Act, 2015.)

Facts:

heavily on the

decision of Supreme Court in Shafin Jahan v. Asokan K.M., ,

The instant application had been preferred by the victim girl who had been

kept in the Remand Home since 20-03-2020 in connection with Barh P.S.Case no.

57/2020 registered under Section 363, 366(A) of the IPC. The father of the victim

had lodged an FIR alleging that his daughter was seen being taken away by the

accused on a motorcycle. On recovery, the victim disclosed that she had gone to the

house of her maternal grandmother because her parents wanted to marry her to

someone else. She disclosed her age as 18 years which was recorded by the

magistrate in his own pen in the format of the statement under section 164 Cr.PC

but the Magistrate assessed her age as 17 years without there being any basis for

the same. Moreover, without considering the request of the victim girl to allow her

to live with her maternal grandmother, the Additional Chief Judicial Magistrate

vide order dated 20.03.2020 had sent her to the Observation Home.

Held: It was held that the Additional Chief Judicial Magistrate while passing the

impugned order should have acted with more circumspection and care. In all

fairness, he should have called for the school certificate of the victim girl because

he was aware that the victim girl was a student of Class-XII. The Magistrate had

also failed to consider the submission of the victim girl that she wanted to live with

her maternal grandmother particularly when the parents of the victim girl had no

objection to sending the victim girl to her maternal grand-mother. The Bench also

stated that all possibilities were required to be explored keeping the best interest

of the child in the mind, to facilitate her stay either with her own family or with a

trusted guardian where her security would also be intact. Relying

(2018) 16 SCC 368

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JURIS RAY

the Court set aside the impugned order and directed the release of the petitioner

from the Observation Home. The Bench further directed that it would be open to

the petitioner to choose her place of residence.

Additionally, observing that the judicial officers are required to be sensitized on

the subject, the Bench urged the Chief Justice to consider issuing appropriate

directions to the Bihar Judicial Academy to hold classes on the subject and take

efforts to sensitize the judicial officers of the State as to how to deal with such cases

in accordance with law. The Bench Remarked,

“The judicial officers are required to be sensitized on this issue otherwise similar

examples will kept on coming before this Court. The need to keep a child in the

Observation Home or to allow him/her to stay with her parents/guardians is one of

the most essential considerations which are required to be given by the

Magistrates when they find that a minor girl or victim of a crime is produced before

them. There cannot be a remand of a victim girl to an Observation Home in a

routine manner.”

13. Amar Yadav Vs. The State of Bihar

2021(1) PLJR 666

Criminal Revision No.50 of 2020

(Bail and not institutionalization continues to be the principle under the

Juvenile Justice (Care and Protection of Children) Act, 2015)

?Facts: The petitioner Juvenile in conflict with law was lodged in observation

home in connection with JJB case no. 606 of 2019 for having committed offences

under section 365, 363 and 302 IPC. His prayer for bail was rejected by the Juvenile

Justice Board, Buxar vide order dated 06.11.2019. Assailing the order he

preferred an appeal before 1 st Additional Sessions Judge-cum-Special Judge,

Buxar, upheld the order passed by the Juvenile Justice Board, Buxar and rejected

the appeal preferred by the petitioner. Hence the petitioner preferred the present

revision before the High court under Section 102 of the Act of 2015. The prayer for

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JURIS RAY

bail of the petitioner was rejected on the ground that the offence alleged is of

heinous nature and the matter is still under investigation. After recording these

reasons, Juvenile Justice Board was of the opinion that the release of petitioner on

bail may bring discord in the society causing physical and psychological danger to

the petitioner. The appellate court also recorded that the offence is grave and there

is possibility of association of the juvenile with adult criminals.

?Held: The courts below have erred in appreciating the true spirit and import of

mandate of section 12 of the Juvenile Justice Care and Protection of Children Act

2015 as discussed in Lalu Kumar v. State of Bihar 2019(4) PLJR 833. There was no

material before the court below to come to the conclusion that release would expose

the petitioner to moral, physical or psychological danger. The discord in the society

or apprehension of retaliation could not have been a valid ground for rejection of the

bail of the petitioner. Allowing the revision application the Juvenile was ordered to

be released on bail.

______________

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JURIS RAY

?Section 15, 18

14. Sumit Kumar Vs. State of Bihar

2021 (1) PLJR 683 Criminal Miscellaneous

No. 82844 of 2019

(The Special Courts created under special laws, gain power from the various

provisions contained in the enactments. They cannot and should not

transgress the jurisdiction prescribed under the special laws.)

Facts: The application in the present case was filed under Sections 439 and 440 of

the Code of Criminal Procedure, for grant of bail to the petitioner Sumit Kumar,

who was accused in Runnisaidpur P.S. Case No. 325 of 2019 registered under

Section 376 of the Indian Penal Code and Section 6 of the POCSO Act. The

petitioner, on 17.08.2019 at around 12 P.M. was alleged to have entered the house

of the victim (informant) where she was alone and raped her. On her protest, he put

a knife on her neck and threatened to kill her. The petitioner on 21.08.2019

preferred an application before The Special Court, POCSO Act, praying that he was

below 18 years on the date of offence and his case be transferred to the Juvenile

Justice Board, Sitamarhi, for trial and disposal. Whereupon the learned Special

Court itself conducted an inquiry as prescribed under Section 34 of the POCSO Act

and determined the age of the petitioner to be 17 years 11 months and 07 days on

the date of alleged occurrence, thus, declared him a 'child in conflict with law',

vide order dated 01.10.2019 and directed the petitioner to be sent to 'Observation

Home', Muzaffarpur. The Special Court, POCSO Act, Sitamarhi, determined the

age of the petitioner but did not forward the petitioner to the Juvenile Justice

Board and proceeded for trial as an adult, refusing the prayer for bail made on

behalf of the petitioner.

Held: The Special Court, POCSO Act, upon determining the age of the petitioner

and holding him 'child in conflict with law' is under statutory obligation in terms of

Section 34(1) of the POCSO Act, 2012 and Sections 9(2) & (3) of the Juvenile

Justice Act, 2015, to forward the petitioner to the Juvenile Justice Board for

passing appropriate order. In the case of heinous offence committed by a child, who

is above the age of 16 years, the Board shall conduct a preliminary assessment in

terms of Section 15 of the Act, thereupon the Board may pass an order in

accordance with the provisions of sub-section (3) of Section 18 for the purpose of

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JURIS RAY

trial of the said child as an adult and may transfer the case to the Children's Court

having jurisdiction to try such offences. Only after preliminary assessment by the

Board as stipulated under Section 15 of the Juvenile Justice Act, if the Board

passes an order transferring the trial of the case to the Children's' Court in terms of

Section 18(3) of the Act, the Children's Court or Special Court, POCSO Act, can

proceed and decide in terms of Section 19 of the Juvenile Justice Act. The Court in

paragraph 13 referred to and quoted the observations made by the Hon'ble

Supreme Court, regarding Section 15 of the Juvenile Justice Act in Shilpa Mittal

Vs. State of NCT of Delhi and Ors; reported in (2020) 2 SCC 787.

_______________

| 156 |

JURIS RAY

?Section 101(1)

15. Nitish Kumar Vs. State of Bihar,

2020 SCC OnLine Pat 2227

Criminal Revision No. 1255 of 2019

(An appeal against an order of the Juvenile Justice Justice Board lies before

the Children's court which is the court of ADJ –I for the State of Bihar and

an order passed by any other sessions court is a nullity being without

jurisdiction.)

Facts: The petitioner was in observation home in connection with Konch P.S. Case

No. 195 of 2018 registered for the offences punishable under Sections 395, 397 and

376-D of the Penal Code, 1860 as well as Section 6 of the Protection of Children

from Sexual Offences Act, 2012. The first information report was registered on

14.06.2018. The petitioner was taken into custody on 22.06.2018. He has been

declared a juvenile in conflict with law by the Juvenile Justice Board, Gaya, on

20.02.2019. His application for grant of bail was rejected by the Juvenile Justice

Board, Gaya, vide order dated 28.03.2019. his appeal against the said order was th

dismissed by the 9 additional sessions judge, Gaya. Against this he filed a revision

before the High Court.

Held: The High Court observed that, Section 101(1) of the Act of 2015 provides

that subject to the provisions of the Act, any person aggrieved by an order of the

Board, may prefer an appeal before the Children's Court within 30 days and in the

State of Bihar the court of Additional District and Sessions Judge-I of all the

judgeships has been designated as Children's Court under the Commission for

Protection of Child Rights Act, 2005. Hence the appeal preferred by the petitioner

under Section 101(1) of the Act of 2015 was not maintainable before the court of th

Additional District & Sessions Judge 9 , Gaya. Accordingly the matter was

remitted back to the court below.

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JURIS RAY

NARCOTIC DRUGS AND PSYCHOTROPIC

SUBSTANCES ACT

(Fair trial is a constitutional guarantee to an accused under Article 21. Fair

trial includes fair investigation. Onus lies on the prosecution to demonstrate

that the investigation was fair enough to not to cause any prejudice to the

parties, especially the accused.)

Facts: Confidential information was received that the appellant, is engaged in

purchase and sale of ganja (opium) and is hiding ganja in his house. On the basis of

this information the informant lodged station diary and proceeded along with

other police personnel for village. Local chaukidar Rajendra Paswan (PW-4) also

accompanied the informant and police party. The appellant was informed that the

police has to search the house as the police had information that ganja is kept

there. The appellant was also informed about his right to be searched in presence

of the Magistrate as contemplated under Section 50 of the Act. Upon search 29.500

Kg of ganja was recovered from the appellant's house. The sample from all the

packets of recovery was taken out and sealed in three envelops. Thereafter, the

seized narcotics were also sealed and subsequently sent to the forensic lab for

examination. Since the appellant had no valid license for keeping ganja in

commercial quantity, the appellant and others were booked in the case.

On conclusion of trial the appellant above named was found guilty for offences

under Section 20 (b) (ii) (C) and under Section 27 (A) of the Narcotic Drugs and

Psychotropic Substances Act, 1985. The learned trial Judge awarded 10 years

rigorous imprisonment along with fine of Rs. 1 lac under both the heads and in

default of payment of fine simple imprisonment of three months was awarded.

Held: Setting aside the conviction and sentence, the court observed that Fair trial

is a constitutional guarantee to an accused under Article 21. Fair trial includes fair

investigation. In the present case, there is no evidence on the record that the

requirement of Section 42 of the Act was complied. There is nothing on the record

and brought during the course of trial that the informant police officer got the

16. Sanjay Kamkar @ Sanjay Kumar V. State of Bihar

2021 (1) PLJR 793

CR. APP (SJ) No.1479 of 2019 decided on 09-02-2021

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JURIS RAY

confidential information received by him reduced into writing and communicated

it to his immediate official superior. Such writing might have been in physical form

or electronic mode, but nothing was brought on the record that the mandate of

Section 42 of the NDPS Act was complied. Hence the charge against the appellant

cannot be treated as proved.

It was also held that the prosecution has failed to establish that the place of seizure

belonged to the appellant as the appellant was arrested from his shop and not from

the place of seizure. The informant's claim that he searched the house of the

appellant and recovered ganja as well as his claim that he sampled and sealed the

same finds confrontation from the testimony of the prosecution witness no. 1, 2 and

3. Thus the whole prosecution case is fit to be disbelieved on the aforesaid score

only. Further held that the non-support of the prosecution case by the prosecution

witnesses, the non-examination of the Anchaladhikari who was accompanying the

police team as Magistrate; seriously tells upon the prosecution case as the

foundation of the case has not been proved and substantiated beyond reasonable

doubt. Accordingly the appellants were directed to be set free at once.

_______________

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JURIS RAY

POCSO ACT, 2012

(For The testimony of the victim cannot be disbelieved only on the ground of

non-examination of neighbour, especially, when her testimony is

corroborated by medical evidence and the victim is consistent in matter of

place of occurrence, manner of occurrence and identity of perpetrators of

crime.)

Facts: Both the appellants in this case faced trial in connection with Digha P.S.

Case No. 337 of 2014 corresponding to POCSO Case No. 76 of 2014 before learned

Special Judge, Patna and both were sentenced to undergo rigorous imprisonment

for 10 years and to pay a fine of Rs. 25000/- for offence under Section 4 of the

POCSO Act. Three months further imprisonment was ordered in default of

payment of fine. The appellants were acquitted of the charge under Section 376 (D)

of the Indian Penal Code. The Judgment of conviction dated 13.06.2017 and order

of sentence dated 15.06.2017 are under challenge in these appeals.

Held: Minor contradiction in filing of F.I.R is possible when the F.I.R. was lodged by

an illiterate lady and the same was written by some other person. Aforesaid

infirmity would be of no consequence when the victim is consistent in the matter of

place of occurrence, manner of occurrence and identity of the perpetrators of the

crime. It is highly unbelievable and unacceptable that the prosecutrix would make

a self-humiliating statement for the alleged dispute between the parties which is

itself of shaky nature and cannot take place of strong motive for making false

allegation. In the present case the prosecutrix has come forward to fully support

the prosecution case and her testimony is corroborated by the medical evidence.

She has with stand the test of cross-examination. Hence, appeal stands dismissed.

?Sections 4 & 16

17. Nagina Choudhary and Ors. vs. State of Bihar

MANU/BH/0474/2021

Criminal Appeal (SJ) Nos. 2060 and 2521 of 2017

Date of Judgment: 26.04.2021

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PREVENTION OF CORRUPTION ACT

(Where law presumes that there are orders on paper with regard to a certain

fact, the original or its copies, which are admissible under law, have to be

produced before the Court and proved in the manner required in law and

only upon the same being done, the Court is required to take cognizance and

accept the same.)

Facts: The petitioner was alleged to be caught taking bribe and was tried under

section 7/13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988. She was

acquitted by Special Judge, Vigilance (Trap), Patna who gave her the benefit of

doubt on the ground of non-production of order constituting the trap team,

constitution of a team to look into the matter is the first and foremost requirement

and upon such team being constituted, in accordance with law. Hence, this appeal.

Held: Constitution of a team to look into the matter is the first foremost

requirement and upon such team being constituted, in accordance with law, by the

Competent Authority, members of the team have the jurisdiction to proceed

further in the matter of cross checking, preparing pre-trap memo followed by the

exercise of actual trap and thereafter followed by a post-trap memo etc. When no

such document was ever produced before the Court to show that the trap team

which conducted the exercise was constituted by the Competent Authority, the

doubt in this regard becomes open to speculation and the Court rightly did not go

on the self-statement made by the concerned persons that they were members of

such trap team. Moreover the court also found the delay in filing of the appeal is due

to deliberate laches on the part of the appellant which does not persuade the Court

to condone such limitation. Hence, both on account of limitation and merits the

Appeal stands dismissed.

______________

18. The Economic Offences unit through The Superintendent

of Police v. Aruna Kumari 2020(1) PLJR, 902

Govt. Appeal (SJ) No.- 18 with IA No. 1 of 2019

Date of Judgement: 23-01-2020

JURIS RAY

Sl.No Name of Parties Citation Subject

1 Late Shanti Devi through LR Vs. Rajkumar Gupta 2020 (2)PLJR 265

2 Ram Sewak Mahto Vs. Ranjit Kumar Mahto 2020 (1) PLJR 432

Section 75

CPC & 151

CPC:

3 Uday Prakash Mishra Vs. Poonam Mishra 2020 (2) PLJR 599

Section 113

CPC & Order

XLVI Rule 1

4 Ranvijay Mandal Vs. Shambhu Mandal 2020(2)PLJR449Order VI

Rule 17

5 Sudha Agarwal Vs. Ritu Gupta 2020 (2) PLJR 275Order VI

Rule 17

6Kundan Kumar Yadav & Anr., Vs. Lalit Kumar

Yadav & Ors2020(1) PLJR 359

Order VIII

Rule 1

7 Vikash Yadav Vs. Kailash Chandra Sinha 2020 (1) PLJR 51Order XXII

Rule 12

8 Anjani Kumar Vs. Priya Devi 2020(1) PLJR 89 Section 24

9Pushpa Drolia And Anr Vs. Sohrai Mahton And

Ors2020(4)PLJR 40

Section 52 &

54

INDEX

LIMITATION ACT: ADVERSE POSSESSION

CODE OF CIVIL PROCEDURE

HINDU MARRIAGE ACT, 1955

TRANSFER OF PROPERTY ACT

Synopsis of Recent Judgements of

Patna High Courts (Civil)

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SYNOPSIS OF RECENT JUDGEMENTS

OF PATNA HIGH COURTS (CIVIL)LIMITATION ACT: ADVERSE POSSESSION

(Plea of adverse possession and title are mutually inconsistent)

FACTS: The defendant claimed to have title over the suit land on the basis of the

exchange deeds. He also claimed adverse possession over the suit land.

HELD: Hon'ble High Court held that the law is well settled that plea of adverse

possession and of title are mutually inconsistent. In this case the defendants have

put a claim on the suit land by title arising out of the exchange transaction.

Therefore, the defendants cannot be allowed to put claim over the suit land by

adverse possession. Moreover, a person who claims adverse possession should

prove that:

a) On what date he came into possession;

b) What was the nature of his possession;

c) Whether the factum of possession was known to the other property*;

d) How long his possession has continued, and;

e) His possession was open and undisturbed.

Mere long and continuous possession by itself could not constitute adverse

possession unless it is established by evidence that the claim of the defendants on

the suit property was hostile to the claim of the plaintiffs to their knowledge and

the plaintiffs deliberately kept mum even after expiry of 12 years from the date of

open assertion of title by the defendants.

The claim of adverse possession of the defendants was found to be not sustainable

in the facts of the case as per the above reasoning.

1. Late Shanti Devi through LR Vs. Rajkumar Gupta

2020 (2)PLJR 265

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JURIS RAY

CODE OF CIVIL PROCEDURE

(Direction to obtain DNA test cannot be used to collect evidence)

FACTS: Defendants claimed that plaintiffs have wrongly claimed to be the sons of

defendant no. 1/petitioner no. 1 in the partition suit filed by them. As a matter of

fact, they are sons of the first wife of defendant no. 1, who had married another

person namely Rajendra Mahto. It was stated that the plaintiffs merely are the

tenants of the defendant nos. 2 and 3. As such, defendants filed a petition under

Sections 75 and 151 CPC with a prayer to call for a report of DNA test of

plaintiff/defendants and defendant no. 1/petitioner no. 1.

HELD: Hon'ble High Court held that no document had been filed by the

defendants in order to draw an inference that the plaintiffs are not the sons of

defendant no. 1. On the other hand, documents had been furnished by the

plaintiffs which prima facie show them to be the sons of defendant no. 1. It is well

settled that a direction to obtain DNA test cannot be used as a tool to collect

evidence on behalf of the parties, as sought to be done herein. Accordingly the

lower court order rejecting the petition was held to be correct.

(Reference can be made only on question of law)

Reference was made by the Civil Judge to the Hon'ble High Court for

interpretation of the Judgment rendered in Miscellaneous Suit No 65 of 1993 as

also the order of the Apex Court passed inter se the parties in SLP No ( Civil) No

15016 of 93. The Hon'ble High Court held that order XLVI Rule 1 CPC restricts

references with regard to such of those matters which are appealable and moreover

the reference has to only on a question of law and not on fact. Accordingly the

reference was held to be misconceived and was returned to the Court concerned.

Section 75 CPC & 151 CPC:

Section 113 CPC & Order XLVI Rule 1

2. Ram Sewak Mahto Vs. Ranjit Kumar Mahto

2020 (1) PLJR 432

3. Uday Prakash Mishra Vs. Poonam Mishra 2020 (2) PLJR 599

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JURIS RAY

Order VI Rule 17

4. Ranvijay Mandal Vs. Shambhu Mandal

2020(2)PLJR449

(Amendment petition filed after extreme delay without Justification liable to

be rejected)

FACTS: The plaintiffs had filed the suit for declaration that the sale deeds

executed by the defendant 2nd party in favour of other defendants for the suit land

are illegal and void and not binding on the plaintiffs and further sought relief for

declaration that the order dated 15.6.1998 passed by the Circle Officer in Mutation

Case and the analogous orders passed in Mutation appeal are void, illegal, without

jurisdiction and not binding on the plaintiffs. During the trial, after 19 years,

plaintiffs filed an amendment petition claiming that inadvertently the plaintiffs

could not assert that they hold title to the suit land and sought corresponding

changes in relevant paras of the plaint and also sought amendment that a relief for

declaration of title be also added.

In the amendment petition, there was no averment that in spite of due diligence

the plaintiffs could not raise the matter before commencement of the trial. In

absence of the aforesaid pleading, the trial court dismissed the application filed by

the petitioners taking into consideration that no reason for filing a petition after

undue delay of 19 years has been given by the petitioners. The trial court also

observed that allowing the amendment would amount to reopening the suit from

its inception after 19 years of its filing. It also took into consideration several

directions given by this Court for early disposal of the case without giving any

adjournment to the parties to the suit as one of the fetters for not allowing the

application filed by the petitioners under Order VI, Rule 17 of the CPC.

HELD: Hon'ble High Court held that since no pleading was advanced by the

petitioners regarding justification for filing amendment petition after

commencement of trial in compliance of the proviso to Order VI, Rule 17 of the

CPC, no error can be found with the order impugned.

__________________________

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JURIS RAY

Order VI Rule 17:

Order VIII Rule 1

5. Sudha Agarwal Vs. Ritu Gupta 2020 (2) PLJR 275

6. Kundan Kumar Yadav & Anr., Vs. Lalit Kumar Yadav &

Ors. 2020(1) PLJR 359

(Introducing a new case through amendment is not permissible)

FACTS: The plaintiff filed the amendment petition after ten years of the institution

of the suit.. By proposed amendment, the plaintiff substituted figure '1962' by

figure '1985'. By the second amendment, the plaintiff has substituted the area

measuring '0805' in place of '0380' hectare. She further added a large number of

plots in Schedule of the plaint besides some other amendment. By said

amendment the plaintiffs want to withdraw the admission as regards year of

partition which she had admitted in the plaint. She has stated in the plaint that

partition took place in 1962 and now she asserts that partition took place in 1985.

Besides that she has added various plot numbers in Schedule 'Ka' of the plaint

claiming to be the joint family property.

HELD: The amendments in question introduce altogether a new case at the stage

when the plaintiffs have closed their case and the suit is pending for evidence of

defendants. In view of the above facts and reasons the order allowing the

amendment petition was set aside by the Hon'ble High Court.

(Delay in filing of written statement beyond the statutory period)

FACTS: After being impleaded as defendants, the petitioners did not file written

statement within the statutory period of 30 days in terms of Order VIII, Rule 1 of

the Code of Civil Procedure (for short 'CPC'). Even after expiry of the statutory

period, they did not file their written statement within the extended period of 120

days as provided under proviso to Order VIII, Rule 1 of the CPC. Thus, the plaintiff

filed an application for debarring the petitioners from filing their written

statement. The application filed by the respondent no. 1 was allowed and the

defendants were debarred from filing written statement. Thereafter, the petition of

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the defendants for recall of the order barring them from filing written statement

was also dismissed. Before the Hon'ble High Court the Ld. Counsel for the

defendants submitted that the petitioners would suffer irreparable injury in case

they are not allowed to file their written statement. He contended that since one of

the petitioners had fallen ill during the relevant period, written statement could

not be filed before the court within the stipulated time prescribed under Order

VIII, Rule 1 of the CPC. He has further contended that if the order impugned is not

set aside, it would amount to failure of justice.

HELD: The Hon'ble Court observed that the conduct of the petitioners in the court

below was just to delay the disposal of the probate case and defeat the ends of

justice. The delay of more than a year in filing the written statement and the

subsequent conduct of the defendants was found to be casual. Accordingly the

order debarring the defendants from filing written statement was held to be not

perverse.

A decree-holder can proceed with the execution case in spite of death of the

judgment-debtor without impleading the legal representatives of the

judgment-debtor)

FACTS : The facts of the case, in brief, are that the decree-holder had filed an

execution case for execution of a decree dated 23.11.1986 passed in Title Suit No.

119 of 1972 for delivery of possession.

The petitioner (before the Hon'ble High Court) being the son of judgment-debtor

Ramadhar Prasad Yadav after coming to know about the pendency of Execution

Case No. 2 of 2002 filed a petition in the Court of Munsif, Gopalganj stating therein

that he is the son of judgment-debtor namely, Ramadhar Prasad Yadav, who had

died on 6.7.2012. The judgment-debtor no. 2 Asharfi Sah died in 2015 and his wife,

the judgment-debtor no. 3, namely, Smt. Ishee Sana also died in the Year 2013, but

the legal representatives have not been brought on record either by filing fresh

Order XXII Rule 12

7. Vikash Yadav Vs. Kailash Chandra Sinha

2020 (1) PLJR 51

(

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JURIS RAY

execution case or impleading them in the pending execution proceeding.On the

aforesaid grounds, a prayer was made to dismiss the ongoing execution proceeding

against the deceased judgment-debtors. This petition was dismissed by the Trial

Court and the order was challenged before the Hon'ble Court.

HELD : Hon'ble High Court held that the normal principle in a suit before the

decree is passed is that the legal representatives are to be brought on record within

the time limited by the rules and in case, the legal representatives are not brought

on record within the time stipulated in the rules under Order 22, the suit would

abate, however, the same principle is not applicable in case of death of the decree-

holder or judgment debtor in execution proceeding, in view of the specific provision

prescribed under Order 22, Rule 12 of the C.P.C.

Hon'ble High Court also observed that in case of death of judgment-debtor, the

Court can fix a reasonable time for the said purpose and if the decree holder does

not file an application for the aforesaid purpose, the Court can dismiss the

execution petition for default. But in any event the execution petition cannot be

dismissed as abated. Alternatively, it is also open to the decree holder's legal

representatives, to file a fresh execution petition in case of death of the decree

holder; OR, in case of death of the judgment debtor, the decree holder can file a

fresh execution petition impleading the legal representatives of the judgment

debtor; such a fresh execution petition, if filed, is, in law, only a continuation of the

pending execution petition—the one which was filed in time by the decree holder

initially.

_____________________________

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JURIS RAY

HINDU MARRIAGE ACT, 1955

(Award of interim maintenance where the wife, alleging cruelty, stays away

from the Husband)

FACTS: The Husband had contested the claim of wife for interim maintenance on

the ground that she has deserted the matrimonial house and therefore is not

entitled to maintenance. He has also claimed that wife has a monthly income of Rs

30,000/- .

The brief facts are that initially the husband filed Matrimonial Case under Section

9 of the Hindu Marriage Act for restitution of conjugal rights. Since the wife did not

join in the said case in spite of due service of notice, the said case could not proceed.

Subsequently, the wife filed a complaint vide Complaint Case in the court against

the Husband under Section 498A of the Indian Penal Code. Left with no other

option the husband filed Matrimonial Case No. 279 of 2013 seeking decree of

divorce. The wife, on the other hand has claimed that

After marriage, she was subjected to cruelty in various ways for non-fulfillment of

demand of dowry in relation to which she has filed a complaint case as well. She

had also claimed that her husband owns a three-storied house out of which two

stories have been given on rent. The petitioner earns Rs. 15,000/- per month as

rent. He also owns two vehicles, namely, Bolero and vehicle, which plies on hire. He

also runs a poultry firm and is engaged in trade of share. Apart from the income of

the aforesaid sources, he is also working as an agent of Sahara India. She has

further stated that the total income of the petitioner is about Rs. 3 lakhs per month

out of the different trade and business being done by the petitioner. She has also

stated that she does not have any income and is totally dependent on his brothers

whose economic condition is itself bad. On the basis of the aforesaid pleas, the

respondent claimed Rs. 30,000/- per month as an interim maintenance allowance.

5. The petitioner contested the claim of the respondent. He has stated in his reply

to the claim made by the petitioner that the brother of the respondent is a

businessman and his monthly income is about 1 lakh. He also owns a house in

Section 24:

8. Anjani Kumar Vs. Priya Devi, 2020(1) PLJR 89

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JURIS RAY

Kankarbagh Colony, Patna, which is fitted with all modern appliances. The

respondent is also a working lady and earns about Rs. 30,000/- per month. He has

denied having any vehicle or medical agency or poultry firm of his own. However, he

has admitted that he works as an agent in Sahara India and out of the income from

the agency somehow he is able to lead his life. On such pleas, he has made a

request to the Court to dismiss the application filed by the respondent under

Section 24 of the Hindu Marriage Act.

6. Having appreciated the rival submissions, the court below has directed the

petitioner to pay interim maintenance allowance amounting to Rs. 8,000/- per

month from the date of filing of the suit and Rs. 20,000/- as cost of litigation to the

respondent.

HELD: As far as the factum of marriage is concerned, the same is not disputed.

Though, the petitioner has disputed his income from various sources, as stated by

the respondent, he has admitted that he is working as an agent in the Sahara India.

He has not brought on record anything to suggest that the respondent is a working

lady. The statement made by the petitioner that the respondent is earning Rs.

30,000/- per month from her private job is not corroborated by any oral or

documentary evidence. That apart, the ground taken by the petitioner that since

the respondent is not living in her matrimonial house and has herself deserted the

petitioner is no ground for denying her maintenance. It is not disputed that the

respondent has filed a case inter alia under Section 498A of the Indian Penal Code

against the petitioner, which is still pending in the court. If the wife alleges that

she is being subjected to cruelty in her matrimonial home, she has a right not to live

in her matrimonial home in order to save herself from further torture.

It is true that wife's income has to be taken into account while determining the

amount of maintenance payable to her. However, in absence of any proof of

employment of the respondent, the court below has rightly directed the petitioner

to pay maintenance allowance to his wife.

In Sunita Kachwaha and Ors. vs. Anil Kuchwaha [(2014)16 SCC 715], the Supreme

Court has held that even if the wife was earning some amount, that may not be a

reason to outrightly reject her maintenance application.

It was also held that the amount allowed as interim maintenance allowance is

neither unreasonable nor unjustified. The order impugned needs no interference

by this Court in exercise of power conferred under Article 227 of the Constitution of

India.

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JURIS RAY

TRANSFER OF PROPERTY ACT

(Whether notice of the suit is necessary for application of doctrine of lis-pen

dence)

The effect that the broad purpose of Section 52 of the Transfer of Property Act is to

maintain status quo unaffected by the act of any party to the litigation pending its

determination since if alienations pendente lite are permitted to prevail, it would

be impossible to bring an action or suit to a successful termination. The doctrine of

lis pendens is expressed in the well-known maxim; 'pendente lite nihil innovature'

which means 'during pendency of any suit regarding title of a property, any new

interest in respect of that property should not be created. The effect of the

applicability of the doctrine is that it does not annual the conveyance, but only

renders it subservient to the rights of the parties to the litigation. The transferee

will be bound by the result of the suit or proceeding, whether or not he had notice of

the suit or proceeding.

_______________________

Section 52 & 54:

9. Pushpa Drolia And Anr. Vs. Sohrai Mahton And Ors,

2020(4)PLJR 40

PART - 3

RECENT IMPORTANT

LEGISLATIONS

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VIDEO CONFERENCING RULES 2020.

Chapter I – Preliminary1. These Rules shall be called the "Rules for Video Conferencing for Courts,

2020".

(i) These Rules shall come into force from the date of its publication in

the Official Gazette.

2. Definitions:— In these Rules, unless the context otherwise requires:

(i) "Advocate" means and includes an advocate entered in any roll

maintained under the provisions of the Advocates Act, 1961 and

shall also include government pleaders/advocates and officers of the

department of prosecution.

(ii) "Commissioner" means a person appointed as commissioner under

the provisions of Code of Civil Procedure, 19081, or the Code of

Criminal Procedure, 19732, or any other law in force.

(iii) "Coordinator" means a person nominated as coordinator under

Rule-5.

(iv) "Court" includes a physical Court and a virtual Court or tribunal.

(v) "Court Point" means the Courtroom or one or more places where the

Court is physically convened, or the place where a Commissioner or

an inquiring officer holds proceedings pursuant to the directions of

the Court.

(vi) "Court User" means a user participating in Court proceedings

through video conferencing at a Court Point.

(vii) "Designated Video Conferencing Software" means software provided

by the High Court from time to time to conduct video conferencing.

(viii)“Exceptional circumstances” include illustratively pandemic, natural

calamities, circumstances implicating law and order and matters

relating to the safety of the accused and witnesses.

(ix) "Live Link" means and includes a live television link, audio-video

electronic means or other arrangements whereby a witness, a

required person or any other person permitted to remain present,

JURIS RAY

while physically absent from the Courtroom is nevertheless virtually

present in the Courtroom by remote communication using technology

to give evidence and be cross-examined.

(x) "Remote Point" is a place where any person or persons are required

to be present or appear through a video link.

(xi) "Remote User" means a user participating in Court proceedings

through video conferencing at a Remote Point.

(xii) "Required Person" includes:

a. the person who is to be examined; or

b. the person in whose presence certain proceedings are to be

recorded or conducted; or

c. an Advocate or a party in person who intends to examine a

witness; or

d. any person who is required to make submissions before the

Court; or

e. any other person who is permitted by the Court to appear

through video conferencing.

(xiii) “Rules” shall mean these Rules for Video Conferencing for Courts

and any reference to a Rule, Sub-Rule or Schedule shall be a

reference to a Rule, Sub-Rule or Schedule of these Rules.

_____________

JURIS RAY

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Chapter II - General Principles

3. General Principles Governing Video Conferencing:—

(i) Video conferencing facilities maybe used at all stages of judicial

proceedings and proceedings conducted by the Court.

(ii) All proceedings conducted by a Court by way of video conferencing

shall be judicial proceedings and all the courtesies and protocols

applicable to a physical Court shall apply to these virtual

proceedings. The protocol provided in Schedule-I shall be adhered

to for proceedings conducted by way of video conferencing.

(iii) All relevant statutory provisions applicable to judicial proceedings

including provisions of the CPC, CrPC, Contempt of Courts Act, 1971,

Indian Evidence Act, 1872 (abbreviated hereafter as the Evidence

Act), and Information Technology Act, 2000 (abbreviated hereafter

as the IT Act), shall apply to proceedings conducted by video

conferencing.

(iv) Subject to maintaining independence, impartiality and credibility of

judicial proceedings, and subject to such directions as the High

Court may issue, Courts may adopt such technological advances as

may become available from time to time.

(v) The Rules as applicable to a Court shall mutatis mutandis apply to a

Commissioner appointed by the Court to record evidence and to an

inquiry officer conducting an inquiry.

(vi) There shall be no unauthorised recording of the proceedings by any

person or entity.

(vii) The required person defined in Rule 2(xii) shall provide identity

proof as recognised by the Government of India/State Government/

Union Territory to the Court point coordinator via personal email. In

case identity proof is not readily available the person concerned shall

furnish the following personal details: name, parentage and

permanent address, as also, temporary address if any.

JURIS RAY

| 175 |

4. Facilities recommended for Video Conferencing:— The followingequipment

is recommended for conducting proceedings by video conferencing at the

Court Point and at the Remote Point:

(i) Desktop, Laptop, mobile devices with internet connectivity and

printer;

(ii) Device ensuring uninterrupted power supply;

(iii) Camera;

(iv) Microphones and speakers;

(v) Display unit;

(vi) Document visualizer;

(vii) Provision of a firewall;

(viii) Adequate seating arrangements ensuring privacy;

(ix) Adequate lighting; and

(x) Availability of a quiet and secure space

5. Preparatory Arrangements:—

5.1 There shall be a Coordinator both at the Court Point and at the

Remote Point from which any Required Person is to be examined or

heard. However, Coordinator may be required at the Remote Point

only when a witness or a person accused of an offence is to be

examined.

5.2 In the civil and criminal Courts falling within the purview of the

district judiciary, persons nominated by the High Court or the

concerned District Judge, shall perform the functions of

Coordinators at the Court Point as well as the Remote Point as

provided in Rule 5.3.

5.3 The Coordinator at the Remote Point may be any of the following:

5.4 When a Required Person is at any of the Remote Points mentioned in

Sub Rules 5.3 and video conferencing facilities are not available at

any of these places the concerned Court will formally request the

District Judge, in whose jurisdiction the Remote Point is situated to

appoint a Coordinator for and to provide a video conferencing facility

from proximate and suitable Court premises.

JURIS RAY

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| 177 |

5.5 The Coordinators at both the Court Point and Remote Point shall

ensure that the recommended requirements set out in Rule 4 are

complied with, so that the proceedings are conducted seamlessly.

5.6 The Coordinator at the Remote Point shall ensure that:

5.6.1 All Advocates and/or Required Persons scheduled to appear

in a particular proceeding are ready at the Remote Point

designated for video conferencing at least 30 minutes before

the scheduled time.

5.6.2 No unauthorised recording device is used.

5.6.3 No unauthorised person enters the video conference room

when the video conference is in progress.

5.6.4 The person being examined is not prompted, tutored, coaxed,

induced or coerced in any manner by any person and that the

person being examined does not refer to any document, script

or device without the permission of the concerned Court

during the course of examination.

5.7 Where the witness to be examined through video conferencing

requires or if it is otherwise expedient to do so, the Court shall give

sufficient notice in advance, setting out the schedule of video

conferencing and in appropriate cases may transmit non-editable

digital scanned copies of all or any part of the record of the

proceedings to the official email account of the Coordinator of the

concerned Remote Point designated in accordance with Rule 5.3.

5.8 Before the scheduled video conferencing date, the Coordinator at the

Court Point shall ensure that the Coordinator at the Remote Point

receives certified copies, printouts or a soft copy of the non-editable

scanned copies of all or any part of the record of proceedings which

may be required for recording statements or evidence, or for

reference. However, these shall be permitted to be used by the

Required Person only with the permission of the Court.

5.9 Whenever required the Court shall order the Coordinator at the

Remote Point or at the Court Point to provide –

5.9.1 A translator in case the person to be examined is not

conversant with the official language of the Court.

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5.9.2 An expert in sign languages in case the person to be examined

is impaired in speech and/or hearing or an expert for reading

documents, in case the person to be examined is visually

challenged.

5.9.3 An interpreter or a special educator, as the case may be, in

case a person to be examined is differently abled, either

temporarily or permanently.

____________

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Chapter III

Procedure for Video Conferencing6. Application for Appearance, Evidence and Submission by Video

Conferencing:

6.1 Any party to the proceeding or witness, save and except where

proceedings are initiated at the instance of the Court, may move a

request for video conferencing. A party or witness seeking a video

conferencing proceeding shall do so by making a request in the form

prescribed in Schedule II.

6.2 Any proposal to move a request for video conferencing should first be

discussed with the other party or parties to the proceeding, except

where it is not possible or inappropriate, for example in cases such as

urgent applications.

6.3 On receipt of such a request and upon hearing all concerned persons,

the Court will pass an appropriate order after ascertaining that the

application is not filed with an intention to impede a fair trial or to

delay the proceedings.

6.4 While allowing a request for video conferencing, the Court may also

fix the schedule for convening the video conferencing.

6.5 In case the video conferencing event is convened for making oral

submissions, the order may require the Advocate or party in person

to submit written arguments and precedents, if any, in advance on the

official email ID of the concerned Court.

6.6 Costs, if directed to be paid, shall be deposited within the prescribed

time, commencing from the date on which the order convening

proceedings through video conferencing is received.

7. Service of Summons:— Summons issued to a witness who is to be examined

through video conferencing, shall mention the date, time and venue of the

concerned Remote Point and shall direct the witness to attend in person along with

proof of identity or an affidavit to that effect. The existing rules regarding service of

summons and the consequences for non-attendance, as provided in the CPC and

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CrPC shall apply with respect to service of summons for proceedings conducted by

video conferencing.

8. Examination of persons:—

8.1 Any person being examined, including a witness shall, before being

examined through video conferencing, produce and file proof of

identity by submitting an identity document issued or duly

recognized by the Government of India, State Government, Union

Territory, or in the absence of such a document, an affidavit attested

by any of the authorities referred to in Section 139 of the CPC or

Section 297 of the CrPC, as the case maybe. The affidavit will inter

alia state that the person, who is shown to be the party to the

proceedings or as a witness, is the same person, who is to depose at

the virtual hearing. A copy of the proof of identity or affidavit, as the

case may be, will be made available to the opposite party.

8.2 The person being examined will ordinarily be examined during the

working hours of the concerned Court or at such time as the Court

may deem fit. The oath will be administered to the person being

examined by the Coordinator at the Court Point.

8.3 Where the person being examined, or the accused to be tried, is in

custody, the statement or, as the case may be, the testimony may be

recorded through video conferencing. The Court shall provide

adequate opportunity to the under-trial prisoner to consult in privacy

with their counsel before, during and after the video conferencing.

8.4 Subject to the provisions for examination of witnesses contained in

the Evidence Act, before the examination of the witness, the

documents, if any, sought to be relied upon shall be transmitted by

the applicant to the witness, so that the witness acquires familiarity

with the said documents. The applicant will file an acknowledgment

with the Court in this behalf.

8.5 If a person is examined with reference to a particular document then

the summons to witness must be accompanied by a duly certified

photocopy of the document. The original document should be

exhibited at the Court Point in accordance with the deposition of the

concerned person being examined.

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8.6 The Court would be at liberty to record the demeanour of the person

being examined.

8.7 The Court will note the objections raised during the deposition of the

person being examined and rule on them.

8.8 The Court shall obtain the signature of the person being examined on

the transcript once the examination is concluded. The signed

transcript will form part of the record of the judicial proceedings. The

signature on the transcript of the person being examined shall be

obtained in either of the following ways:

8.8.1 If digital signatures are available at both the concerned Court

Point and Remote Point, the soft copy of the transcript digitally

signed by the Presiding Judge at the Court Point shall be sent

by the official e-mail to the Remote Point where a print out of

the same will be taken and signed by the person being

examined. A scanned copy of the transcript digitally signed by

the Coordinator at the Remote Point would be transmitted by

official email of the Court Point. The hard copy of the signed

transcript will be dispatched after the testimony is over,

preferably within three days by the Coordinator at the Remote

Point to the Court Point by recognised courier / registered

speed post.

8.8.2 If digital signatures are not available, the printout of the

transcript shall be signed by the presiding Judge and the

representative of the parties, if any, at the Court Point and

shall be sent in noneditable scanned format to the official

email account of the Remote Point, where a printout of the

same will be taken and signed by the person examined and

countersigned by the Coordinator at the Remote Point. A non-

editable scanned format of the transcript so signed shall be

sent by the Coordinator of the Remote Point to the official

email account of the Court Point, where a print out of the same

will be taken and shall be made a part of the judicial record.

The hard copy would also be dispatched preferably within

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three days by the Coordinator at the Remote Point to the Court

Point by recognised courier / registered speed post.

8.9 An audio-visual recording of the examination of person examined

shall be preserved. An encrypted master copy with hash value shall

be retained as a part of the record.

8.10 The Court may, at the request of a person to be examined, or on its

own motion, taking into account the best interests of the person to be

examined, direct appropriate measures to protect the privacy of the

person examined bearing in mind aspects such as age, gender,

physical condition and recognized customs and practices.

8.11 The Coordinator at the Remote Point shall ensure that no person is

present at the Remote Point, save and except the person being

examined and those whose presence is deemed administratively

necessary by the Coordinator for the proceedings to continue.

8.12 The Court may also impose such other conditions as are necessary in

a given set of facts for effective recording of the examination

(especially to ensure compliance with Rule 5.6.4).

8.13 The examination shall, as far as practicable, proceed without

interruption or the grant of unnecessary adjournments. However, the

Court or the Commissioner as the case may be, will be at liberty to

determine whether an adjournment should be granted, and if so, on

what terms.

8.14 The Court shall be guided by the provisions of the CPC and Chapter

XXIII, Part B of the CrPC, the Evidence Act and the IT Act while

examining a person through video conferencing.

8.15 Where a Required Person is not capable of reaching the Court Point

or the Remote Point due to sickness or physical infirmity, or presence

of the required person cannot be secured without undue delay or

expense, the Court may authorize the conduct of video conferencing

from the place at which such person is located. In such

circumstances the Court may direct the use of portable video

conferencing systems. Authority in this behalf may be given to the

concerned Coordinator and/or any person deemed fit by the Court.

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8.16 Subject to such orders as the Court may pass, in case any party or

person authorized by the party is desirous of being physically present

at the Remote Point at the time of recording of the testimony, such a

party shall make its own arrangement for appearance

/representation at the Remote Point.

9. Exhibiting or Showing Documents to Witness or Accused at a Remote

Point:— If in the course of examination of a person at a Remote Point by video

conferencing, it is necessary to show a document to the person, the Court may

permit the document to be shown in the following manner:

9.1 If the document is at the Court Point, by transmitting a copy or image

of the document to the Remote Point electronically, including

through a document visualizer; or

9.2 If the document is at the Remote Point, by putting it to the person and

transmitting a copy/image of the same to the Court Point

electronically including through a document visualizer. The hard

copy of the document counter signed by the witness and the

Coordinator at the Remote Point shall be dispatched immediately

thereafter to the Court Point via authorized courier/registered speed

post.

10. Ensuring seamless video conferencing .—

10.1 The Advocate or Required Person, shall address the Court by video

conferencing from a specified Remote Point on the date and time

specified in the order issued by the Court. The presence of the

coordinator will not be necessary at the Remote point where

arguments are to be addressed by an advocate or party in person

before the Court.

10.2 If the proceedings are carried out from any of the Remote Point(s) (in

situations described in Rules 5.3.1 to 5.3.9) the Coordinator at such

Remote Point shall ensure compliance of all technical requirements.

However, if the proceedings are conducted from a Remote Point

falling in the situation contemplated under Rule 5.3.10, such as an

Advocate’s office, the Coordinator at the Court Point shall ensure

compliance of all technical requirements for conducting video

conferencing at both the Court Point and the Remote Point.

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10.3 The Coordinator at the Court Point shall be in contact with the

concerned Advocate or the Required Person and guide them in

regard to the fulfilment of technical and other requirements for

executing a successful hearing through video conferencing. Any

problems faced by such Remote Users shall be resolved by the Court

Point Coordinator. The Court Point Coordinator shall inter alia share

the link of the video conferencing hearing with such Remote Users.

10.4 The Coordinator at the Court Point shall ensure that any document or

audio-visual files, emailed by the Remote User, are duly received at

the Court Point.

10.5 The Coordinator at the Court Point shall also conduct a trial video

conferencing, preferably 30 minutes prior to scheduled video

conferencing in order to ensure that all the technical systems are in

working condition at both the Court Point and the Remote Point.

10.6 At the scheduled time, the Coordinator at the Court Point shall

connect the Remote User to the Court.

10.7 On completion of the video conferencing proceeding, the Court shall

mention in the order sheet the time and duration of the proceeding,

the software used (in case the software used is not the Designated

Video Conferencing Software), the issue(s) on which the Court was

addressed and the documents if any that were produced and

transmitted online. In case a digital recording is tendered, the Court

shall record its duration in the order sheet along with all other

requisite details.

10.8 The Court shall also record its satisfaction as to clarity, sound and

connectivity for both Court Users and Remote Users.

10.9 On the completion of video conferencing, if a Remote User is of the

opinion that they were prejudiced due to poor video and / or audio

quality, the Remote User shall immediately inform the Coordinator

at the Court Point, who shall in turn, communicate this information

to the Court without any delay. The Court shall consider the

grievance and if it finds substance in the grievance may declare the

hearing to be incomplete and the parties may be asked to re-connect

or make a physical appearance in Court.

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11. Judicial remand, framing of charge, examination of accused and

Proceedings under Section 164 of the CrPC.—

11.1 The Court may, at its discretion, authorize detention of an accused,

frame charges in a criminal trial under the CrPC by video

conferencing. However, ordinarily judicial remand in the first

instance or police remand shall not be granted through video

conferencing save and except in exceptional circumstances for

reasons to be recorded in writing.

11.2 The Court may, in exceptional circumstances, for reasons to be

recorded in writing, examine a witness or an accused under Section

164 of the CrPC or record the statement of the accused under Section

313 CrPC through video conferencing, while observing all due

precautions to ensure that the witness or the accused as the case

maybe is free of any form of coercion, threat or undue influence. The

Court shall ensure compliance with Section 26 of the Evidence Act.

___________

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Chapter IV- General Procedure12. General procedure :—

12.1 The procedure set out hereinafter in this chapter is without prejudice

to the procedure indicated elsewhere in these Rules qua specific

instances in which proceedings are conducted via video

conferencing.

12.2 The Coordinator at the Court Point shall ensure that video

conferencing is conducted only through a Designated Video

Conferencing Software. However, in the event of a technical glitch

during a given proceeding, the concerned Court may for reasons to be

recorded permit the use of a software other than the Designated

Video Conferencing Software for video conferencing in that particular

proceeding.

12.3 The identity of the person to be examined shall be confirmed by the

Court with the assistance of the Coordinator at the Remote Point in

accordance with Rule 8.1, at the time of recording of the evidence

and the same must be reflected in the order sheet of the Court.

12.4 In civil cases, parties requesting for recording statements of the

person to be examined by video conferencing shall confirm to the

Court, the location of the person, the willingness of such person to be

examined through video conferencing and the availability of

technical facilities for video conferencing at the agreed upon time

and place.

12.5 In criminal cases, where the person to be examined is a prosecution

witness or a Court witness, or where a person to be examined is a

defence witness, the counsel for the prosecution or defence counsel,

as the case maybe, shall confirm to the Court the location of the

person, willingness to be examined by video conferencing and the

time, place and technical facility for such video conferencing.

12.6 In case the person to be examined is an accused, the prosecution will

confirm the location of the accused at the Remote Point.

12.7 Video conferencing shall ordinarily take place during the Court

hours. However, the Court may pass suitable directions concerning

the timing and schedule of video conferencing as the circumstances

may warrant.

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12.8 If the accused is in custody and not present at the Court Point, the

Court will order a multi-point video conference between itself, the

witness and the accused in custody to facilitate recording of the

statement of the witness (including medical or other expert). The

Court shall ensure that the defence of the accused is not prejudiced

in any manner and that the safeguards contained in Rule 8.3 are

observed.

12.9 The Coordinator at the Remote Point shall be paid such amount as

honorarium as may be directed by the Court in consultation with the

parties.

13. Costs of Video Conferencing :— In the absence of Rules prescribed by the

concerned Court, the Court may take into consideration following circumstances

when determining and/or apportioning the costs of video conferencing:

13.1 In criminal cases, the expenses of the video conferencing facility

including expenses involved in preparing soft copies / certified

copies of the Court record and transmitting the same to the

Coordinator at the Remote Point, and the fee payable to translator /

interpreter / special educator, as the case may be, as also the fee

payable to the Coordinator at the Remote Point, shall be borne by

such party as directed by the Court.

13.2 In civil cases, generally, the party making the request for recording

evidence, through video conferencing shall bear the expenses.

13.3 Besides the above, the Court may also make an order as to expenses

as it considers appropriate, taking into account Rule/ Rules

regarding payment of expenses to the complainant and witnesses, as

may be prevalent from time to time.

13.4 It shall be open to the Court to waive the costs as warranted in a given

situation.

14. Conduct of Proceedings:—

14.1 All advocates, required persons, the party in person and/or any other

person permitted by the Court to remain physically or virtually

present (hereinafter collectively referred to as participants) shall

abide by the requirements set out in Schedule I.

14.2 Before the commencement of video conferencing all participants,

shall have their presence recorded. However, in case a participant is

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desirous that their face or name be masked, information to that

effect will be furnished to the Court Point Coordinator prior to the

commencement of the proceeding.

14.3 The Court Point Coordinator shall send the link / Meeting ID / Room

Details via the email Id / mobile number furnished by the Advocate

or required person or other participant permitted to be virtually

present by the Court. Once the proceedings have commenced, no

other persons will be permitted to participate in the virtual hearing,

save and except with the permission of the Court.

14.4 The participants, after joining the hearing shall remain in the virtual

lobby if available, until they are admitted to virtual hearing by the

Coordinator at the Court Point.

14.5 Participation in the proceedings shall constitute consent by the

participants to the proceedings being recorded by video

conferencing.

14.6 Establishment and disconnection of links between the Court Point

and the Remote Point would be regulated by orders of the Court.

14.7 The Court shall satisfy itself that the advocate, required person or

any other participant that the Court deems necessary at the Remote

Point or the Court Point can be seen and heard clearly and can clearly

see and hear the Court.

14.8 To ensure that video conferencing is conducted seamlessly, the

difficulties, if any, experienced in connectivity must be brought to the

notice of the Court at the earliest on the official email address and

mobile number of the Court Point Coordinator which has been

furnished to the participant before the commencement of the virtual

hearing. No complaint shall subsequently be entertained.

14.9 Wherever any proceeding is carried out by the Court under these

Rules by taking recourse to video conferencing, this shall specifically

be mentioned in the order sheet.

15. Access to Legal Aid Clinics/Camps/Lok Adalats/Jail Adalats:—

15.1 In conformity with the provisions of the Legal Services Authorities

Act, 1987 and the laws in force, in proceedings related to Legal Aid

Clinics, Camps, Lok Adalats or Jail Adalats, any person who at the

Remote Point is in Jail or Prison shall be examined by the Chairman

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/ Secretary of the District Legal Service Authority or Taluka Legal

Service Committee or Members of Lok Adalats before passing any

award or orders in accordance with law.

15.2 Such award or order shall have the same force as if it was passed by

the regular Lok Adalat or Jail Adalat.

15.3 Copy of the award or order and the record of proceedings shall be

sent to the Remote Point.

16. Allowing persons who are not parties to the case to view the proceedings :—

16.1 In order to observe the requirement of an open Court proceeding,

members of the public will be allowed to view Court hearings

conducted through video conferencing, except proceedings ordered

for reasons recorded in writing to be conducted in-camera. The Court

shall endeavour to make available sufficient links (consistent with

available bandwidth) for accessing the proceedings.

16.2 Where, for any reason, a person unconnected with the case is present

at the Remote Point, that person shall be identified by the

Coordinator at the Remote Point at the start of the proceedings and

the purpose of the presence of that person shall be conveyed to the

Court. Such a person shall continue to remain present only if ordered

so by the Court.

____________

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Chapter V – Miscellaneous

SCHEDULE I

17. Reference to Words and Expressions.— Words and expressions used and not

defined in these Rules shall have the same meaning as assigned to them in the

CPC, the CrPC, Evidence Act, IT Act, and the General Clauses Act, 1897.

18. Power to Relax.— The High Court may if satisfied that the operation of any

Rule is causing undue hardship, by an order dispense with or relax the

requirements of that Rule to such extent and subject to such conditions, as may be

stipulated to deal with the case in a just and equitable manner.

19. Residual Provisions.—Matters with respect to which no express provision

has been made in these Rules shall be decided by the Court consistent with the

principle of furthering the interests of justice.

1. All participants shall wear sober attire consistent with the dignity of the

proceedings. Advocates shall be appropriately dressed in professional attire

prescribed under the Advocates Act, 1961. Police officials shall appear in

the uniform prescribed for police officials under the relevant statute or

orders. The attire for judicial officers and Court staff will be as specified in

the relevant Rules prescribed in that behalf by the High Court. The decision

of the Presiding Judge or officer as to the dress code will be final.

2. Proceedings shall be conducted at the appointed date and time. Punctuality

shall be scrupulously observed.

3. The case will be called out and appearances shall be recorded on the

direction of the Court.

4. Every participant shall adhere to the courtesies and protocol that are

followed in a physical Court. Judges will be addressed as “Madam/Sir” or

“Your Honour”. Officers will be addressed by their designation such as

“Bench Officer/Court Master”. Advocates will be addressed as “Learned

Counsel/Senior Counsel”

5. Advocates, required persons, parties in person and other participants shall

keep their microphones muted till such time as they are called upon to

make submissions.

6. Remote Users shall ensure that their devices are free from malware.

7. Remote Users and the Coordinator at the Remote Point shall ensure that

the Remote Point is situated in a quiet location, is properly secured and has

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sufficient internet coverage. Any unwarranted disturbance caused during

video conferencing may if the Presiding Judge so directs render the

proceedings nonest.

8. All participants cell phones shall remain switched off or in air-plane mode

during the proceedings.

9. All participants should endeavour to look into the camera, remain attentive

and not engage in any other activity during the course of the proceedings

10. The provisions of the Patna High Court Rules would be applicable wherever

the present Rules are inconsistent with the same or where provision has not

specifically been made in the present Rules.

Request Form for Video Conference1. Case Number / CNR Number (if any)

2. Cause Title

3. Proposed Date of conference (DD/MM/YYYY):___________

4. Location of the Court Point(s):______________

5. Location of the Remote Point(s):_______________________

6.Names & Designation of the Participants at the Remote Point:

___________________

7. Reasons for Video Conferencing:

In the matter of:

8. Nature of Proceedings: Final Hearing Motion Hearing Others

I have read and understood the provisions of Rules for Video Conferencing for

Courts (hyperlink). I undertake to remain bound by the same to the extent

applicable to me. I agree to pay video conferencing charges if so, directed by the

Court.

Signature of the applicant / authorised signatory:

Date:

For use of the Registry / Court Point Coordinator

A) Bench assigned:

SCHEDULE II

B) Hearing:

Held on (DD/MM/YYYY):

Commencement Time:

End time:

Number of hours:

C) Costs:

Overseas transmission charges if any:

To be Incurred by Applicant /Respondent:

To be shared equally:

Waived; as ordered by the Court:

Signature of the authorised officer:

Date:

PROTECTION OF CHILDREN FROM SEXUAL OFFENCES RULES 2020

1. (1) Short title and commencement.- These rules may be called the

Protection of Children from Sexual Offences Rules, 2020.

(2) They shall come into force on the date of their publication in the Official

Gazette.

2. Definitions.- (1) In these rules, unless the context otherwise requires,-

(a) “Act” means the Protection of Children from Sexual Offences Act, 2012 (32

of 2012);

(b) “District Child Protection Unit” (DCPU) means the District Child Protection

Unit established by the State Government under section 106 of the Juven

ile Justice (Care and Protection of Children) Act, 2015 (2 of 2016);

(c) “expert” means a person trained in mental health, medicine, child

development or other relevant discipline, who may be required to facilitate

communication with a child whose ability to has been affected by trauma,

disability or any other vulnerability;

(d) “special educator” means a person trained in communication with children

with disabilities in a way that addresses the child’s individual abilities and

needs, which include ch communication, emotional and behavioral issues,

physical disabilities, and developmental issues.

Explanation.- For the purposes of this clause, the expression“disabilities”,

shall carry the same meaning as defined in clauseof as section 2 of the

Rights of Persons with Disabilities Act, 2016 (49 of

(e) “Person familiar with the manner of communication of the child” means a

parent or family member of a child or a member of child shared household

or any person in whom the c confidence, who is familiar with that child’s

unique manner of communication, and whose presence may be required for

or be conducive to more effective communication with the child;

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(f) “support person” means a person assigned by the child Welfare Committee,

in accordance with sub rule (7) of rule 4, to render assistance to the child

through the process of investigation and trial, or any other person assisting

the child in the pre trial or trial process in respect of an offence under the

(2) Words and expressions used and not defined in these rules but defined in

the Act shall have the meanings respectively assigned to them under the Act.

3. Awareness gneration and capacity building. -- (1) The Central Government, or

as the case may be, the State Government shall prepare age appropriate

educational material and curriculum for children, informing them about

various aspects of personal safety, including:-

(i) measures to protect their physical, and virtual identity; and to safeguard

their emotional and mental

(ii) prevention and protection from sexual offences;

(iii) reporting mechanisms, including Child help line 1098 services;

(iv) inculcating gender sensitivity, gender equality and gender equity for

effective prevention of offences under the Act.

(2) Suitable material and information may be disseminated by the respective

Governments in all public places such as Panchayatbhavans, community centers,

schools and colleges, bus terminals, railway stations, places of congregation,

airports, taxi stands, cinema halls and such other prominent places and also be

disseminated in suitable form in virtual spaces such as internet and social

media.

(3) The Central Government and every State Government shall take all suitable

measures to spread awareness about possible risks and vulnerabilities, signs of

abuse, information about rights of children under the Act along with access to

support and services available for children.

(4) Any institution housing children or coming in regular contact with children

including schools, creches, sports academies or any other facility for children

must ensure a police verification and background check on periodic basis, of

every staff, teaching or non teaching, regular or contractual, or any other person

being an employee of such Institution coming in contact with the child. Such

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Institution shall also ensure that periodic training is organized for sensitizing

them on child safety and protection.

(5) The respective Governments shall formulate a child protection policy based

on the principle of zero tolerance to violence against children, which shall be

adopted by all institutions, organizations, or any other agency working with, or

coming in contact with children.

(6) The Central Government and every State to Government shall Provide

periodic training including orientation programmes, sensitization workshops

and refresher courses to all persons, whether regular or contractual, coming in

contact with the children, to sensitize them about child safety and protection

and educate them regarding their responsibility under the Act. Orientation

programme and intensive courses may also be organized for police personnel

and forensic experts for building the ir capacities in their respective roles on a

regular basis

4. Procedure regarding care and protection of child. (1) Where any Special

Juvenile Police Unit (hereafter referred to as (“SJPU”) or the local police

receives any information under sub-section (1) of section19 of the Act from any

person including the child, the SJPU or local police receiving the report of such

information shall forthwith disclose to the person making the report, the

following details:-

(i) his or her name and designation;

(ii) the address and telephone number;

(iii) the name, designation and contact details of the officer who supervises

the officer receiving the information.

(2) If any such information regarding the commission of an offence under the

provisions of the Act is received by the child help line 1098, the child help line

shall immediately report such information to SJPU or Local Police.

(3) Where an SJPU or the local police, as the case may be, receives information

in accordance with the provision ontained under sub section (1) of section 19 of

the Act in respect of an offence that has been committed or attempted or is

likely to be committed, the authority concerned shall, where applicable,

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(a) proceed to record and register a First Information Report as per the

provisions of section154 of the Code of Criminal Procedure, 1973 (2 of

1974), and furnish a copy thereof free of cost to the person making

such report, as per subsection (2) of section154 of that Code;

(b) where the child needs emergency medical care as described under

subsection (5) of section 19 of the Actor under these rules, arrange for

the child to access such care, in accordance with rule 6;

(c) take the child to the hospital for the medical examination in accordance

with section 27 of the Act

(d) ensure that the samples collected for the purposes of the forensic tests

are sent to the forensic laboratory immediately;

(e) inform the child and child’s parent or guardian or other person in whom

the child has trust and confidence of the availability of support services

including counselling, and assist them in contacting the persons who are

responsible for providing these services and relief;

(f) inform the child and child’s parent or guardian or other person in whom

the child has trust and confidence as to the righ t of the child to legal

advice and counsel and the right to be represented by a lawyer, in

accordance with section 40 of the Act.

(4) Where the SJPU or the local police receives information under sub section

(1) of section 19 of the Act, and has a reasonable apprehension that the offence

has been committed or attempted or is likely to be committed by a person living

in the same or shared household with the child, or the child is living in a child

care institution and is without parental support, or the child is found to be

without any home and parental support, the concerned SJPU, or the local police

shall produce the child before the concerned Child Welfare Committee

(hereafter referred to as “CWC”) within 24 hours of receipt of such report,

together with r easons in writing as to whether the child is in need of care and

protection under sub section (5) of section 19 of the Act, and with a request for a

detailed assessment by the CWC.

(5) Upon receipt of a report under sub rule (3), the concerned CWC must

proceed, in accordance with its powers under subsection (1) of section 31 of the

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Juvenile Justice Act, 2015 (2 of 2016), to make a determination within three

days, either on its own or with the assistance of a social worker, as to whether

the child needs to be taken outof the custody of child’s family or shared

household and placed in a children’s home or a shelter home.

(6) In making determination under sub rule (4), the CWC shall take into account

any preference or opinion expressed by the child on t he matter, together with

the best interests of the child, having regard to the following considerations,

namely:

(i) the capacity of the parents, or of either parent, or of any other person in

whom the child has trust an confidence, to provide for the immeddiate

care and protection needs of the child, including medical needs and

counseling;

(ii) the need for the child to remain in the care of parent’s, family and

extended family and to maintain a connection with them;

(iii) the child’s age and level of maturity, gender, and social and economic

background;

(iv) disability of the child, if any;

(v) any chronic illness from which a child may suffer;

(vi) any history of family violence involving the child or a family member of

the child; and,

(vii) any other relevant factors that may have a bearing on the best interest of

the child.

any other relevant Provided that prior to making such determination, an

inquiry shall be conducted in such a way that the child is not unnecessarily

exposed to injury or inconvenience.

(7) The child and child’s parent or guardian or any other person in whom the

child has trust and confidence and with whom the child has been living, who is

affected by such determination, shall be informed that such determination is

being considered.

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(8) The CWC, on receiving a report under sub section (6) of section 19 of the Act

or on the basis of its assessment made under sub-rule (5), and with the consent

of the child and child’s parent or guardian or other person in whom the child

has trust and confidence, may provide a support person to render assistance to

the child in all possible manner throughout the process of investigation and

trial, and shall immediately inform the SJPU or Local Police about providing a

support person to the child.

(9) The support person shall at all times maintain the confidentiality of all

information pertaining to the child to which he or she has access and shall keep

the child and child’s parent or guardian or other person in whom the child has

trust and confidence, informed regarding the proceedings of the case, including

available assistance, judicial procedures, and potential outcomes. The Support

person shall also inform the child of the role the Support person may play in the

judicial process and ensure that any concerns that the child may have, regarding

child’s safety in relation to the accused and the manner in which the Support

person would like to provide child’s testimony, are conveyed to the relevant

authorities.

(10) Where a support person has been provided to the child, the SJPU or the

local police shall, within 24 hours of making such assignment, inform the

Special Court in writing.

(11) The services of the support person may be terminated by the CWC upon

request by the child and child’s parent or guardian or person in whom the child

has trust and confidence, and the child requesting the termination shall not be

required to assign any reason for such request. The Special Court shall be given

in writing such information.

(12) The CWC shall also Seek monthly reports from support person till the

completion of trial, with respect to condition and care of child, including the

family situation focusing on the physical, emotional and mental wellbeing, and

progress towards healing from trauma; engage with medical care facilities, in

coordination with the support person, to ensure need-based continued medical

support to the child, including psychological care and counseling; and shall

ensure resumption of education of the child, or continued education of the child,

or shifting of the child to a new school, if required.

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(13) It shall be the responsibility of the SJPU, or the local police to keep the

child and child’s parent or guardian or other person in whom the child has trust

and confidence, and where a support person has been assigned, such person,

informed about the developments, including the arrest of the accused,

applications filed and other court proceedings.

(14) SJPU or the local police shall also inform the child and child’s parents or

guardian or other person in whom the child has trust and confidence about

their entitlements and services available to them under the Act or any other law

for the time being applicable as per Form-A. It shall also complete the

Preliminary Assessment Report in From B within 24 hours of the registration of

the First Information Report and submit it to the CWC.

(15) The information to be provided by the SJPU, local police, or support

person, to the child and child’s parents or guardian or other person in whom the

child has trust and confidence, includes but is not limited to the following:-

(i) the availability of public and private emergency and crisis services;

(ii) the procedural steps involved in a criminal prosecution;

(iii) the availability of victim’s compensation benefits;

(iv) the status of the investigation of the crime, to the extent it is a

ppropriate to inform the victim and to the extent that it will not

interfere with the investigation;

(v) the arrest of a suspected offender;

(vi) the filing of charges against a suspected offender;

(vii) the schedule of court proceedings that the child is either required to

attend or is entitled to attend;

(viii) the bail, release or detention status of an offender or suspected

offender;

(ix) the rendering of a verdict after trial; and

(x) the sentence imposed on an offender.

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5. Interpreters, translators, special educators, experts and support persons.--

(1) In each district, the DCPU shall maintain a register with names, addresses

and other contact details of interpreters, translators, experts, special educators

and support persons for the purposes of the Act, and this register shall be made

available to the SJPU, local police, magistrate or Special Court, as and when

required.

(2) The qualifications and experience of the interpreters, translators, special

educators, experts and support persons engaged for the purposes of sub-section

(4) of section 19, sub-sections (3) and (4) of section 26 and section 38 of the Act,

and rule 4 respectively shall be as indicated in these rules.

(3) Where an interpreter, translator, or special educator is engaged, otherwise

than from the list maintained by the DCPU under sub-rule (1), the requirements

prescribed under sub-rules (4) and (5) of this rule may be relaxed on evidence of

relevant experience or formal education or training or demonstrated proof of

fluency in the relevant languages by the interpreter, translator, or special

educator, subject to the satisfaction of the DCPU, Special Court or other

authority concerned.

(4) Interpreters and translators engaged under sub-rule (1) should have

functional familiarity with language spoken by the child as well as the official

language of the state, either by virtue of such language being child’s mother

tongue or medium of instruction at school at least up to primary school level, or

by the interpreter or translator having acquired knowledge of such language

through child's vocation, profession, or residence in the area where that

language is spoken.

(5) Sign language interpreters, special educators and experts entered in the

register under sub-rule(1) should have relevant qualifications in sign language

or special education, or in the case of an expert, in the relevant discipline, from

a recognised University or an institution recognised by the Rehabilitation

Council of India.

(6) Support person may be a person or organisation working in the field of child

rights or child protection, or an official of a children’s home or shelter home

having custody of the child, or a person employed by the DCPU:

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Provided that nothing in the se rules shall prevent the child and child’s

parents or guardian or other person in whom the child has trust and confidence

from seeking the assistance of any person or organization for proceedings under

the Act.

(7) Payment for the services of an interpreter, translator, special educator, expert

or support person whose name is enrolled in the register maintained under sub-

rule (1) or otherwise, shall be made by the State Government from the Fund

maintained under section 105 of the Juvenile Justice Act, 2015 (2 of 2016), or

from other funds placed at the disposal of the DCPU.

(8) Any interpreter, translator, special educator, expert or support person

engaged for the purpose of assisting a child under this Act, shall be paid a fee

which shall be prescribed by the State Government, but which, shall not be less

than the amount prescribed for a skilled worker under the Minimum Wages Act,

1948 (11 of 1948).

(9) Any preference expressed by the child at any stage after information is

received under sub-section(1) of section 19 of the Act, as to the gender of the

interpreter, translator, special educator, expert or support person, may be taken

into consideration, and where necessary, more than one such person may be

engaged in order to facilitate communication with the child.

(10) The interpreter, translator, special educator, expert, support person or

person familiar with the manner of communication of the child engaged to

provide services for the purposes of the Act shall be unbiased and impartial and

shall disclose any real or perceived conflict of interest and shall render a

complete and accurate interpretation or translation without any additions or

omissions, in accordance with section 282 of the Code of Criminal Procedure,

1973 (2 of 1974).

(11) In proceedings under section 38, the Special Court shall ascertain whether

the child speaks the language of the court adequately, and that the engagement

of any interpreter, translator, special educator, expert, support person or other

person familiar with the manner of communication of the child, who has been

engaged to facilitate communication with the child, does not involve any conflict

of interest.

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(12) Any interpreter, translator, special educator, expert or support person

appointed under the Act shall be bound by the rules of confidentiality, as

described under section 127 read with section 126 of the Indian Evidence Act,

1872 (1 of 1872).

6. Medical aid and care.-- (1) Where an officer of the SJPU, or the local police

receives information under section 19 of the Act that an offence under the Act

has been committed, and is satisfied that the child against whom an offence has

been committed is in need of urgent medical care and protection, such officer, or

as the case may be, the local police shall, within 24 hours of receiving such

information, arrange to take such child to the nearest hospital or medical care

facility center for emergency medical care:-

Provided that where an offence has been committed under sections 3, 5, 7 or

9 of the Act, the victim shall be referred to emergency medical care.

(2) Emergency medical care shall be rendered in such a manner as to protect

the privacy of the child, and in the presence of the parent or guardian or any

other person in whom the child has trust and confidence.

(3) No medical practitioner, hospital or other medical facility center rendering

emergency medical care to a child shall demand any legal or magisterial

requisition or other documentation as a pre-requisite to rendering such care.

(4) The registered medical practitioner rendering medical care shall attend to

the needs of the child, including:

(a) treatment for cuts, bruises, and other injuries including genital injuries,

if any;

(b) treatment for exposure to sexually transmitted diseases (STDs) including

prophylaxis for identified STDs;

© treatment for exposure to Human Immunodeficiency Virus

(HIV),including prophylaxis for HIV after necessary consultation with

infectious disease experts;

(d) possible pregnancy and emergency contraceptives should be discussed

with the pubertal child and her parent or any other person in whom the

child has trust and confidence; and,

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(e) wherever necessary, a referral or consultation for mental or psychological

health needs, or other counseling, or drug de-addiction services and

programmes should be made.

(5) The registered medical practitioner shall submit the report on the condition

of the child within 24 hrs to the SJPU or Local Police.

(6) Any forensic evidence collected in the course of rendering emergency

medical care must be collected in accordance with section 27 of the Act.

(7) If the child is found to be pregnant, then the registered medical practitioner

shall counsel the child, and her parents or guardians, or support person,

regarding the various lawful options available to the child as per the Medical

Termination of Pregnancy Act 1971 and the Juvenile Justice (Care and

Protection of Children) Act 2015 (2 of 2016).

(8) If the child is found to have been administered any drugs or other

intoxicating substances, access to drug de addiction programme shall be

ensured.

(9) If the Child is a divyang (person with disability), suitable measure and care

shall be taken as per the provisions of The Rights of Persons with Disabilities

Act, 2016 (49 of 2016).

7. Legal aid and assistance.-- (1) The CWC shall make a recommendation to

District Legal Services Authority (hereafter referred to as “DLSA”) for legal aid

and assistance.

(2) The legal aid and assistance shall be provided to the child in accordance

with the provisions of the Legal Services Authorities Act, 1987 (39 of 1987).

8. Special relief.-- (1) For special relief, if any, to be provided for contingencies

such as food, clothes, transport and other essential needs, CWC may

recommend immediate payment of such amount as it may assess to be required

at that stage, to any of the following:

(i) the DLSA under Section 357A; or;

(ii) the DCPU out of such funds placed at their disposal by state or;

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| 203 |

(iii) funds maintained under section105 of the Juvenile Justice (Care and

Protection of Children) Act,2015 (2)of (2016).

(2) Such immediate payment shall be made within a week of receipt of

recommendation from the CWC.

(9) Compensation.-- (1) The Special Court may, in appropriate cases, on its own

or on an application filed by or on behalf of the child, pass an order for interim

compensation to meet the needs of the child for relief or rehabilitation at any

stage after registration of the First Information Report. Such interim

compensation paid to the child shall be adjusted against the final compensation,

if any.

(2) The Special Court may, on its own or on an application filed by or on behalf

of the victim, recommend the award of compensation where the accused is

convicted, or where the case ends in acquittal or discharge, or the accused is

not traced or identified, and in the opinion of the Special Court the child has

suffered loss or injury as a result of that offence.

(3) Where the Special Court, under sub-section (8) of section 33 of the Act read

with sub-sections (2) and (3) of section 357A of the Code of Criminal Procedure,

1973 (2 of 1974) makes a direction for the award of compensation to the victim,

it shall take into account all relevant factors relating to the loss or injury caused

to the victim, including the following:

(i) type of abuse, gravity of the offence and the severity of the mental or

physical harm or injury suffered by the child;

(ii) the expenditure incurred or likely to be incurred on child’s medical

treatment for physical or mental health or on both;

(iii) loss of educational opportunity as a consequence of the offence,

including absence from school due to mental trauma, bodily injury,

medical treatment, investigation and trial of the offence, or any other

reason; p

(iv) loss of employment as a result of the offence, including absence from

place of employment due to mental trauma, bodily injury, medical

treatment, investigation and trial of the offence, or any other reason;

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(v) the relationship of the child to the offender, if any;

(vi) whether the abuse was a single isolated incidence or whether the

abuse took place overa period of time;

(vii) whether the child became pregnant as a result of the offence;

(viii) whether the child contracted a sexually transmitted disease (STD) as a

result of the offence;

(ix) whether the child contracted human immunodeficiency virus (HIV) as

a result of the offence;

(x) and disability suffered by the child as a result of the offence;

(xi) financial condition of the child against whom the offence has been

committed so as to determine such child’s need for rehabilitation;

(xii) any other factor that the Special Court may consider to be relevant.

(4) The compensation awarded by the Special Court is to be paid by the State

Government from the Victims Compensation Fund or other scheme or fund

established by it for the purposes of compensating and rehabilitating victims

under section 357A of the Code of Criminal Procedure, 1973 or any other law for

the time being in force, or, where such fund or scheme does not exist, by the

State Government.

(5) The State Government shall pay the compensation ordered by the Special

Court within 30 days of receipt of such order.

(6) Nothing in these rules shall prevent a child or child’sparent or guardian or

any other person in whom the child has trust and confidence from submitting an

application for seeking relief under any other rules or scheme of the Central

Government or State Government.

10.Procedure for imposition of fine and payment thereof:- (1) The CWC shall

coordinate with the DLSA to ensure that any amount of fine imposed by the

Special Court under the Act which is to be paid to the victim, is in fact paid to

the child.

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(2) The CWC will also facilitate any procedure for opening a bank account,

arranging for identity proofs, etc., with the assistance of DCPU and support

person.

11. Reporting of pornographic material involving a child. (1) Any person who

has received any pornographic material involving a child or any information

regarding such pornographic material being stored, possessed, distributed,

circulated, transmitted, facilitated, propagated or displayed, or is likely to be

distributed, facilitated or transmitted in any manner shall report the contents to

the SJPU or local police, or as the case may be, cybercrime portal

(cybercrime.gov.in) and upon such receipt of the report, the SJPU or local police

or the cyber crime portal take necessary action as per the directions of the

Government issued from time to time.

(2) In case the “person” as mentioned in sub-section (1) of section 2 of the

Information Technology Act,2000, such person shall in addition to reporting, as

provided under sub-rule(1), also hand over the necessary material including the

source from which such material may have originated to the SJPU or local

police, or as the case may be, cyber-crime portal (cybercrime.gov.in) and upon

such receipt of the said material, the SJPU or local police or the cyber-crime

portal take necessary action as per the directions of the Government issued

from time to time.

(3) The report shall include the details of the device in which such

pornographic content was noticed and the suspected device from which such

content was received including the platform on which the content was

displayed.

(4) The Central Government and every State Government shall make all

endeavors to create widespread awareness about the procedures of making such

reports from time to time.

12.Monitoring of implementation of the Act-(1) The National Commission for

the Protection of Child Rights (hereafter referred to as “NCPCR”) or the State

Commission for the Protection of Child Rights (hereafter referred to as

“SCPCR”), as the case may be, shall in addition to the functions assigned to

them under the Commissions for the Protection of Child Rights Protection of

Child Rights Act, 2005 (4 of 2006), perform the following functions for

implementation of the provisions of the Act-

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(a) monitor the designation of Special Courts by State Governments;

(b) monitor the appointment of the Special Public Prosecutors by the State

Governments;

(c) monitor the formulation of the guidelines described in section 39 of the

Act by the State Governments, for the use of non-governmental

organisations, professionals and experts or persons having knowledge of

psychology, social work, physical health, mental health and child

development to be associated with the pre-trial and trial stage to assist

the child, and to monitor the application of these guidelines;

(d) monitor the designing and implementation of modules for training police

personnel and other concerned persons, including officers of the Centre

and State Governments, for the effective discharge of their functions

under the Act;

(e) monitor and support the Central Government and State Governments for

the dissemination of information relating to the provisions of the Act

through media including the television, radio and print media at regular

intervals, so as to make the general public, children as well as

their parents and guardians aware of the provisions of the Act

(f) call for a report on any specific case of child sexual abuse falling within

the jurisdiction of a CWC.

(g) collect information and data on its own or from the relevant agencies

regarding reported cases of sexual abuse and their disposal under the

processes provided under the Act, including information on the

following:

(i) number and details of offences reported under the Act;

(ii) whether the procedures prescribed under the Act and rules were

followed, including those regarding timeframes;

(iii) details of arrangements for care and protection of victims of offences

under this Act, including arrangements for emergency medical care

and medical examination; and,

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(iv) details regarding assessment of the need for care and protection of a

child by the concerned CWC in any specific case;

(h) use the information so collected to assess the implementation of the

provisions of the Act. The report on monitoring of the Act shall be

included in a separate chapter in the annual report of the NCPCR or the

SCPCR.

(2) The concerned authorities mandated to collect data, under the Act, shall

share such data with the Central Government and every State Government,

NCPCR and SCPCRs.

13. Repeal.The Protection of Children from Sexual Offences Rules, 2012 are

hereby repealed, except as respects things done or omitted to be done before

such repeal.

FORM -A

Entitle of children who have suffered sexual abuse to receive information and services

1. To receive a copy of the FIR.

2. To receive adequate security and protection by Police.

3. To receive immediate and free medical examination by civil hospital/PHC

etc.

4. To receive Counseling and consultation for mental and psychological well

being.

5. For Recording of statement of child by woman police officer at child’s

home or any other place convenient to child.

6. To be moved to a Child Care Institution where offence was at home or in

a shared household, to the custody of a person whom child reposes faith.

7. For Immediate aid and assistance on the recommendation of CWC.

8. For being kept away from accused at all times, during trial and otherwise.

9. To have an interpreter or translator, where needed.

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10. To have special educator for the child or other specialized person where

child is disabled.

11. For Free Legal Aid.

12. For Support Person to be appointed by Child Welfare Committee.

13. To continue with education.

14. To privacy and confidentiality.

15. For list of Important Contact No.’s including that of the District

Magistrate and the Superintendent of Police.

Date:

I have received a copy of ‘Form-A'

(Signature of Victim/Parent/Guardian)Duty Officer

(Name & Desgination to be mentioned)

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COMPENSATION SCHEME FOR WOMEN VICTIMS SURVIVORS OF 209-221

SEXUAL ASSAULT & OTHER CRIMES 2019

1. SHORT TITLE AND COMMENCEMENT:—

2. DEFINITIONS:—

(1) This Chapter may be called the Compensation Scheme for women

Victims/Survivors of Sexual Assault/other Crimes, 2019.

(2) It shall come into force on the date of publication in official gazette.

(3) It shall apply to the Victim and their dependent(s) of Bihar who have

suffered loss, injury, as the case may be, as a result of the offence

committed and require rehabilitation.

(1) In this Chapter, unless the context otherwise requires:

(a) "Code" means the Code of Criminal Procedure, 1973 (2 of

1974);

(b) "Dependent" includes husband, father, mother,

grandparents, unmarried daughter and minor children of the

victim as determined by the State Legal Services Authority or

DLSA on the basis of the report of the Sub-Divisional

Magistrate of the concerned area/Station House

officer/Investigating officer or on the basis of material placed

on record by the dependents by way of affidavit or on its own

enquiry.

(c) "District Legal Services Authority" means the District Legal

Services Authority of Bihar (DLSA) constituted under section

9 of the Legal Services Authorities Act, 1987 (Act 39 of 1987),

Bihar;

(d) 'Form' means form appended to the Scheme as applicable to

this Chapter.

(e) 'Fund' means State fund i.e. victim compensation fund

constituted under the State Victim Compensation Scheme.

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(f) 'Central Fund' means funds received from CVCF Scheme,

2015.

(g) 'Women Victim Compensation Fund'- means a fund

segregated for disbursement for women victim, out of State

Victim Compensation Fund and Central Fund. [Within the

State Victim Compensation Fund , a separate Bank Account

shall be maintained as a portion of that larger fund which

shall contain the funds contributed under CVCF Scheme by

MHA, GOI contributed from Nirbhaya Fund apart from funds

received from the State Victim Compensation Fund which

shall be utilized only for Victim covered under this Chapter]

(h) 'Government' means 'State Government' of Bihar wherever

the State Victim Compensation Scheme or the State Victim

Compensation Fund is in context and 'Central Government'

wherever Central Government Victim Compensation Fund

Scheme is in context and includes UTs.

(i) 'Injury' means any harm caused to body or mind of a female.

(j) 'Minor' means a girl child who has not completed the age of 18

years.

(k) 'Offence' means offence committed against women

punishable under IPC or any other law.

(l) 'Penal Code' means Indian Penal Code, 1860 (45 of 1860);

(m) 'Schedule' means schedule applicable to the Chapter/Part of

the scheme.

(n) "State Legal Service Authority" means the Bihar State Legal

Services Authority (BSLSA), as defined in Section 6 of the

Legal Services Authorities Act, 1987 (39 of 1987)

(o) "Sexual Assault Victims" means female who has suffered

mental or physical injury or both as a result of sexual offence

including Sections 376 (A) to (E), Section 354 (A) to (D),

Section 509 IPC.

(p) 'Women Victim/survivor of other crime' means a women who

has suffered physical or mental injury as a result of any offence

mentioned in the attached Schedule including Section 304 B,

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Section 326A Section 498A IPC (in case of physical injury of

the nature specified in the schedule) including the attempts

and abetment.

(2) Words and expressions used in this Chapter and not defined here, shall

have the same meaning as assigned to them in the Code of Criminal

Procedure, 1973 or/and the Indian Penal Code, 1860.

(1) There shall be a fund namely, the Women Victim Compensation Fund

from which the amount of compensation, as decided by the State Legal

Services Authority or District Legal Services Authority, shall be paid to the

women victim or her dependent(s) who have suffered loss or injury as

a result of an offence and who require rehabilitation.

(2) The 'Women Victim Compensation Fund' shall comprise the following:-

(a) Contribution received from CVCF Scheme, 2015.

(b) Budgetary allocation in the shape of Grants-in aid to SLSA for which

necessary provision shall be made in the Annual Budget by the

Government;

(c) Any cost amount ordered by Civil/Criminal Tribunal to be deposited in

this Fund;

(d) Amount of compensation recovered from the wrong doer/accused

under clause 14 of the Scheme;

(e) Donation/contribution from international/National Philanthropist/

Charitable Institutions /Organizations and individuals permitted by

State or Central Government.

(f) Contributions from companies under CSR(Corporate Social

Responsibility)

(3) The said Fund shall be operated by the State Legal Services

Authority(SLSA).

A women victim or her dependent

(S) as the case may be, shall be eligible for grant of compensation from multiple

schemes applicable to her. However, the compensation received by her in the other

schemes with regard to Section 357-B Cr.P.C., shall be taken into account while

deciding the quantum in the such subsequent application.

Mandatory Reporting of FIRs:- SHO/SP/DCP shall mandatorily

3. WOMEN VICTIMS COMPENSATION FUND:—

4. ELIGIBILITY FOR COMPENSATION:—

5. PROCEDURE FOR MAKING APPLICATION BEFORE THE SLSA

OR DLSA:—

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share soft/hard copy of FIR immediately after its registration with State Legal

Services Authority/ District Legal Services Authority qua commission of offences

covered in this Scheme which include Sections 326A, 354A to 354D, 376A to 376E,

304B, 498A (in case of physical injury covered in this Schedule), so that the

SLSA/DLSA can, in deserving cases, may suo moto initiate preliminary verification

of facts for the purpose of grant of interim compensation. An application for the

award of interim/final compensation can be filed by the Victim and/or her

Dependents or the SHO of the area before concerned SLSA or DLSA. It shall be

submitted in form 'I' along with a copy of the First Information Report (FIR) or

criminal complaint of which cognizance is taken by the Court and if available

Medical Report, Death Certificate, Wherever applicable, copy of

judgment/recommendation of Court if the trial is over.

T h e

application/recommendation for compensation can be moved either before the

State Legal Services Authority or the concerned District Legal Services Authority

or it can be filed online on a portal which shall be created by State Legal Services

Authority. The Secretary of the respective DLSA shall decide the

application/recommendation moved before him/her as per the Scheme.

Explanation: In case of acid attack victim the deciding authority shall be Criminal

Injury Compensation Board as directed by Hon'ble Supreme Court in Laxmi VS

Union of India W.P.CRML 129/2006 order dated 10.04.2015 which includes Ld.

District & Session Judge, DM,SP, Civil Surgeon/CMO of the district.

The SLSA or DLSA may

award compensation to the victim or her dependents to the extent as specified in

the scheduled attached hereto.

While Deciding a matter, the State Legal Services

Authority/District Legal Services Authority may take into consideration the

following factors relating to the loss or injury suffered by the victim:

(1) Gravity of the offence and severity of mental or physical harm or

injury suffered by the victim;

(2) Expenditure incurred or likely to be incurred on the medical

treatment for physical and/or mental health including counseling of

the vict im, funeral , travel l ing during invest igat ion

6 . P L A C E O F F I L I N G O F A P P L I C AT I O N : —

7. RELIEFS THAT MAY BE AWARDED BY THE STATE OR

DISTRICT LEGAL SERVICES AUTHORITY:—

8. FACTORS TO BE CONSIDERED WHILE AWARDING

COMPENSATION:—