LODGING TWO FIR AGAINST SAME PERSON IN RESPECT OF SAME CASE

The validity of registration of the second FIR against same person in respect of same case was decided by the Supreme Court.

The Appellants lodged the FIR No. 274 of 2012 against four accused persons alleging that they had prepared fake and fraudulent documents. The second FIR came to be registered on the basis of the direction issued by the learned Additional Chief Judicial Magistrate in exercise of power under Section 156(3) of the Code at the instance of another person alleging, inter alia, that he was neither present in the meetings nor had he signed any of the resolutions of the meetings and the accused persons, five in number, including the Appellant No. 1 herein, had fabricated documents and filed the same before the competent authority. FIR No. 442 of 2012 (which gave rise to Crime No. 491 of 2012) was registered because of an order passed by the learned Magistrate. Be it noted, the complaint was filed by another member of the Governing Body of the Society and the allegation was that the accused persons, twelve in numbers, had entered into a conspiracy and prepared forged documents relating to the meetings held on different dates.

The Hon’ble Judges, in Surender Kaushik and others Vs State of Uttar Pradesh and others observed:

The lodgment of two FIRs is not permissible in respect of one and the same incident. The concept of sameness has been given a restricted meaning. It does not encompass filing of a counter FIR relating to the same or connected cognizable offence. What is prohibited is any further complaint by the same complainant and others against the same accused subsequent to the registration of the case under the Code, for an investigation in that regard would have already commenced and allowing registration of further complaint would amount to an improvement of the facts mentioned in the original complaint.

If the involvement of the number of accused persons and the nature of the allegations are scrutinized, it becomes crystal clear that every FIR has a different spectrum. The allegations made are distinct and separate. It may be regarded as a counter complaint and cannot be stated that an effort has been made to improve the allegations that find place in the first FIR. It is impossible to say that the principle of sameness gets attracted. If the said principle is made applicable to the case at hand and the investigation is scuttled by quashing the FIRs, the complainants in the other two FIRs would be deprived of justice. The Appellants have lodged the FIR making the allegations against certain persons, but that does not debar the other aggrieved persons to move the court for direction of registration of an FIR as there have been other accused persons including the complainant in the first FIR involved in the forgery and fabrication of documents and getting benefits from the statutory authority. The Hon’ble Court concludes and held that the second FIR is recognised and will not be quashed.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

SETTLEMENT OF DISPUTE PUNISHABLE UNDER SECTION 498-A OF INDIAN PENAL CODE

Whether the Criminal Courts dealing with the complaints Under Section 498-A of Indian Penal Code can refer the matter to mediation for the settlement of dispute was examined by the Supreme Court.

The Hon’ble Supreme Court in K.Srinivas Rao Vs D.A.Deepa, held that though offence punishable Under Section 498-A of Indian Penal Code is not compoundable, in appropriate cases if the parties are willing and if it appears to the Criminal Court that there exist elements of settlement, it should direct the parties to explore the possibility of settlement through mediation.

The Hon’ble Supreme Court had issued directions that “(b) The criminal courts dealing with the complaint under Section 498-A of the Indian Penal Code should, at any stage and particularly, before they take up the complaint for hearing, refer the parties to mediation centre if they feel that there exist elements of settlement and both the parties are willing. However, they should take care to see that in this exercise, rigour, purport and efficacy of Section 498-A of the Indian Penal Code is not diluted. Needless to say that the discretion to grant or not to grant bail is not in any way curtailed by this direction. It will be for the concerned court to work out the modalities taking into consideration the facts of each case. (c) All mediation centers shall set up pre-litigation desks/clinics; give them wide publicity and make efforts to settle matrimonial disputes at pre-litigation stage”.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

PRESUMED MARRIAGE ENOUGH FOR RELIEF UNDER PWDV ACT

Whether a relationship in the nature of marriage which existed will entitle woman to claim and receive maintenance under the DV Act, 2005

The Appellant, who was married to the Respondent in the year 2006, had filed a petition Under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'the DV Act') seeking certain reliefs including damages and maintenance. During the pendency of the aforesaid application the Appellant filed an application for interim maintenance which was granted by the learned trial court on 13.02.2008 at the rate of Rs. 2000/- per month. the Respondent sought a recall of the order dated 13.02.2008 on the ground that he could subsequently come to know that his marriage with the Appellant was void on the ground that at the time of the said marriage the Appellant was already married to one Rohit Kumar Mishra. The learned trial court by order dated 7.8.2009 rejected the aforesaid application on the ground that notwithstanding the certificate issued Under special marriage act (first marriage) would still require to the adduced and only thereafter the certificate can be held to be valid. The High Court held that the marriage certificate dated 18.04.2003 was conclusive proof of the first marriage of the Appellant, which had the effect of rendering the marriage between the Appellant and the Respondent null and void. Accordingly, it was held that as the Appellant was not the legally wedded wife of the Respondent she was not entitled to maintenance granted by the learned courts below.

The Hon’ble Supreme Court in Deoki Panjhiyara Vs Shashi Bhushan Narayan Azad and Anr, [Criminal Appeal Nos. 2032-2033 of 2012] had observed:

If according to the Respondent, the marriage between him and the Appellant was void on account of the previous marriage of the Appellant, the Respondent ought to have obtained the necessary declaration from the competent court in view of the highly contentious questions raised by the Appellant on the aforesaid score. It is only upon a declaration of nullity or annulment of the marriage between the parties by a competent court that any consideration of the question whether the parties had lived in a "relationship in the nature of marriage" would be justified. In the absence of any valid decree of nullity or the necessary declaration the court will have to proceed on the footing that the relationship between the parties is one of marriage and not in the nature of marriage. We would also like to emphasise that any determination of the validity of the marriage between the parties could have been made only by a competent court in an appropriate proceeding by and between the parties and in compliance with all other requirements of law. Mere production of a marriage certificate issued Under Section 13 of the Special Marriage Act, 1954 in support of the claimed first marriage of the Appellant, was not sufficient for any of the courts, including the High Court, to render a complete and effective decision with regard to the marital status of the parties and that too in a collateral proceeding for maintenance.

The Hon’ble Court concluded that “the interference made by the High Court with the grant of maintenance in favour of the Appellant was not at all justified”.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates 

POWER OF MAGISTRATE TO TAKE VOICE SAMPLE

Whether Article 20(3) of the Constitution of India, which protects a person accused of an offence from being compelled to be a witness against himself, extends to protecting such an accused from being compelled to give his voice sample during the course of investigation into an offence? (ii) Assuming that there is no violation of Article 20(3) of the Constitution of India, whether in the absence of any provision in the Code, can a Magistrate authorize the investigating agency to record the voice sample of the person accused of an offence?

The above question of law was raised in Ritesh Sinha Vs The state of Uttar Pradesh and Anr. [(2013) 2 SCCC357].

On 7/12/2009, one Prashant Kapil, In-charge, Electronics Cell, P.S. Sadar Bazar, District Saharanpur lodged a First Information Report alleging that one Dhoom Singh in connivance with the Appellant was collecting money from people on the pretext that he would get them recruited in the police department.  After his arrest, one mobile phone was seized from Dhoom Singh.  As the police wanted to verify whether the recorded conversation, which is in their possession, is between accused Dhoom Singh and the Appellant, they needed voice sample of the Appellant.  The police, therefore, filed an application before learned Chief Judicial Magistrate, Janpad Saharanpur, praying that the Appellant be summoned to the court for recording the sample of his voice. On 8/1/2010, learned Chief Judicial Magistrate, Saharanpur issued summons to the Appellant to appear before the investigating officer and give his voice sample. The Appellant approached the Allahabad High Court under Section 482 of the Code of Criminal Procedure, 1973 for quashing of the said order. The High Court by the impugned order dated 9/7/2010 rejected the said application; hence, this appeal was filed before the Supreme Court.

Justice Ranjana Prakash Desai, observed:

The principle that a penal statute should be strictly construed is not of universal application. In Murlidhar Meghraj Loya v. State of Maharashtra: AIR 1976 SC 1929, this Court was dealing with the Prevention of Food Adulteration Act, 1954. Speaking for this Court, Krishna Iyer, J. held that any narrow and pedantic, literal and lexical construction of Food Laws is likely to leave loopholes for the offender to sneak out of the meshes of law and should be discouraged and criminal jurisprudence must depart from old canons defeating criminal statutes calculated to protect the public health and the nation's wealth. Similar view was taken in Kisan Trimbak Kothula and Ors. v. State of Maharashtra: AIR 1977 SC 435. In State of Maharashtra v. Natwarlal Damodardas Soni: AIR 1980 SC 593, while dealing with Section 135 of the Customs Act and Rule 126-H(2)(d) of the Defence of India Rules, a narrow construction given by the High Court was rejected on the ground that will emasculate these provisions and render them ineffective as a weapon for combating gold smuggling. It was further held that the provisions have to be specially construed in a manner which will suppress the mischief and advance the object which the legislature had in view. Therefore, whether the penal statute should be given strict interpretation or not will depend on facts of each case. Considerations of public health, preservation of nation's wealth, public safety may weigh with the court in a given case and persuade it not to give a narrow construction to a penal statute. In the facts of this case, I am not inclined to give a narrow construction to the provisions of the Prisoners Act and Section 53 of the Code. Judicial note can be taken of the fact that there is a great deal of technological advance in means of communication. Criminals are using new methodology in committing crimes. Use of landlines, mobile phones and voice over internet protocol (VoIP) in the commission of crimes like kidnapping for ransom, extortion, blackmail and for terrorist activities is rampant. Therefore, in order to strengthen the hands of investigating agencies, I am inclined to give purposive interpretation to the provisions of the Prisoners Act and Section 53 of the Code instead of giving a narrow interpretation to them. I, however, feel that Parliament needs to bring in more clarity and precision by amending the Prisoners Act. The Code also needs to be suitably amended. Crime has changed its face. There are new challenges faced by the investigating agency. It is necessary to note that many local amendments have been made in the Prisoners Act by several States. Technological and scientific advance in the investigative process could be more effectively used if required amendments are introduced by Parliament. This is necessary to strike a balance between the need to preserve the right against self incrimination guaranteed under Article 20(3) of the Constitution and the need to strengthen the hands of the investigating agency to bring criminals to book.

The Hon’ble Justice held that the impugned order passed by the High Court confirming the order passed by learned Chief Judicial Magistrate, Saharanpur summoning the Appellant to the court for recording the sample of his voice.

Justice Aftab Alam, differed from the above conclusion and held that:

“The Code of Criminal Procedure was amended in 2005 when the Explanation was added to Section 53 and Sections 53A and 311A were inserted into the Code. Voice sample was not included either in the Explanation to Section 53 or Section 311A.

Should the Court still insist that voice sample is included in the definition of "measurements" under the Identification of Prisoners Act and in the Explanation to Section 53 of the Code of Criminal Procedure? I would answer in the negative.”

In view of two different opinions, the appeal therefore was placed before the Hon’ble chief justice of India for referring it for the appropriate bench.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

BAIL MATTER, COURT NOT TO UNDERTAKE METICULOUS EXAMINATION OF EVIDENCE

The High Court had released Accused/Respondent 2 on bail. Consequently the appellant (diseased brother) filed appeal to Supreme Court. Whether, High Court ignored well established principles which guide Court in the exercise of the discretion to grant bail.

The Hon’ble Supreme Court in “Kanwar Singh Meena Vs State of Rajasthan and Anr” [2012(10) SCALE270], had held:

“Section 439 of the Code confers very wide powers on the High court and the Court of Sessions regarding bail. But, while granting bail, the High Court and the Sessions court are guided by the same considerations as other courts. That is to say, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds are required to be taken into consideration. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the Court. The court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police and comment on the same. Such Assessment of evidence and premature comments are likely to deprive the accused of a fair trial. While cancelling bail Under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions court can cancel bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well recognized principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society. Needless to say that though the powers of this Court are much wider, this Court is equally guided by the above principles in the matter of grant or cancellation of bail”.

Taking an overall view of the matter, the Hon’ble Supreme court quashed the order granting bail to the accused and issued direction to the police to take the accused in custody.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

LAWFUL MARRIAGE NOT REQUIRED FOR A MAN TO BE PUNISHED UNDER SECTION 493 I.P.C

Marriage should have been performed by customary rituals or in similar manner only in order to establish that a belief of marriage had been induced, is bound to frustrate the very object and purpose of the provision of section 493 I.P.C for which it has been incorporated in the Indian Penal Code which is clearly to prevent the deceitful act of a man inducing the belief of a lawful marriage for the purpose of cohabitation merely to satisfy his lust for sexual pleasure.

 In a matter before the Hon’ble Supreme Court, in Ram Chandra Bhagat Vs State of Jharkhand [(2010) 135SCC780];

The complainant got acquainted with the appellant herein and they developed intimate relationship so much as that for nine years they cohabited together and had two children - a son and a daughter. Thereafter, it is alleged that the appellant turned the lady out of his house. The complainant alleged that the appellant had given her assurance to marry her and even executed an agreement to this effect on 4.6.1990. The appellant has disputed this agreement.

 In the above Judgment Justice Markandy Katju, observed that:

It is true that the appellant has not behaved like a gentleman. He lived with the complainant for nine years and had two children by her, and hence as a decent person he should have married her which he did not do. However, there is a difference between law and morality, as already stated above. There are many things which are regarded by society as immoral but which may not be illegal. If we say something is illegal then we must point to some specific section of the Indian Penal Code or some other statute which has been violated. Merely saying that the person has done something improper will not necessarily make the act illegal.

In the present case it can be said that the appellant has not behaved like a decent man but, in my opinion, Section493 IPC is not attracted.

A criminal statute has to be construed strictly. Unless all its ingredients are satisfied the person cannot be punished, otherwise there will be violation of Articles 20 and 21 of the Constitution. In the present case since the ingredients of Section 493 are not satisfied the appellant is entitled to acquittal.

In the above matter Justice Gyan Sudha Misra, observed that:

The three ingredients necessary to be established for bringing home the offence under Section493 IPC are:

i) the accused practiced deception;

ii) such deceit was to induce a woman (complainant) to believe that she was lawfully married to him; and

iii) there was cohabitation or sexual intercourse as a result of the deception.

The aforesaid three ingredients for the offence under Section 493 IPC in the light of the evidence recorded hereinbefore are clearly fulfilled in the present case.

Section 493 IPC in my opinion do not presuppose a marriage between the accused and the victim necessarily by following a ritual or marriage by customary ceremony. What has been clearly laid down and emphasized is that there should be an inducement of belief in the woman that she is lawfully married to the accused/appellant and the inducement of belief of a lawful marriage cannot be interpreted so as to mean or infer that the marriage necessarily had to be in accordance with any custom or ritual or under Special Marriage Act. If the evidence on record indicate inducement of a belief in any manner in the woman which cannot possibly be enlisted but from which it can reasonably be inferred by ordinary prudence that she is a lawfully married wife of the man accused of an offence under Section 493 IPC, the same will have to be treated as sufficient material to bring home the guilt under Section493 IPC. Interpretation of the Section in any other manner including an assertion that the marriage should have been performed by customary rituals or in similar manner only in order to establish that a belief of marriage  had been induced, is bound to frustrate the very object and purpose of the provision for which it has been incorporated in the Indian Penal Code which is clearly to prevent the deceitful act of a man inducing the belief of a lawful  marriage for  the purpose of cohabitation merely to satisfy his lust for sexual pleasure.

Since there was a difference of opinion between the Hon’ble Judges, the appeal therefore was placed before the Hon’ble chief justice of India for referring it for the appropriate bench.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates