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

ROUNDING-OFF THE MARKS/PERCENTAGE IS INJUSTICE

Rounding-off of the marks/percentage in a qualifying examination is injustice.

 The Supreme Court in The Registrar, Rajiv Gandhi University of Health Sciences, Bangalore Vs Hemlatha & Others said, no provision is provided in the statute/rules which permits rounding-off of eligibility criteria prescribed for the qualifying examination for admission to PG courses in M.Sc (Nursing). When eligibility criteria are prescribed in a qualifying examination, it must be strictly adhered to. Any dilution or tampering with it will work injustice on other candidates. Rounding-off is impermissible.

The respondent had completed a bachelor of science degree in nursing with 54.71% aggregate marks.  The eligibility criteria prescribed by the Indian Nursing Council for securing admission to the PG course was 55% aggregate marks. By rounding-off method she obtained an eligibility certificate. With the said certificate she obtained admission in the management quota.

When respondent was preparing to take the annual examination, she was informed by the appellant that she was not eligible to take examination as she has secured less than 55% in the qualifying examination. She preferred writ petition in the High Court challenging the said communication. She obtained an interim order permitting to take the first and second examination. Thus, she has completed the PG course by taking both the examinations. The single judge of the Karnataka High Court, by applying the rule of rounding-off of numbers, held 54.71% be rounded-off to 55%. The division bench inclined to interfere with the discretion of the single judge.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates 

POSTAL DEPARTMENT IS DUTY BOUND TO ENSURE THAT LETTERS REACH IN TIME AGAINST ALL ODDS

The postal department is duty bound to ensure that letters reach their destination in time against all odds.

In SR.SUPERINTENDENT OF POST OFFICES DEPARTMENT OF POST VS PUSHPENDRA SINGH, Rajasthan Public Service Commission, Ajmer invited applications for the post of sub-inspectors in Rajasthan police. The complainant sent his application for the said post on 28.12.2010 through speed post. The application did not reach the destination till 31.12.2010, the last day. It was tendered to the Rajasthan Public Service Commission on 04.01.2011 after 4 days of the last date. The complainant received back the envelope on 12.01.2011 with the remark ‘time barred’.

The National Consumer Commission has said, it is the duty of the State to see to it that the letter reaches within 24 hours or at the most within 48 hours from the date of its receipt. It is no part of the duty of subject to anticipate that the letter would not reach the destination due to agitation. The postal department should under all the probabilities, whether it is in its control or beyond its control, must see to it that the letters reach the destination in time.

The post office is not supposed to play with the carrier of the citizen of the country. The letters sent through speed post are always urgent and emergent. It there is a delay, it is the duty of the state to find out some other method to prevent the delay in such like matters.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

WOMAN IN A LIVE-IN RELATIONSHIP AND SECOND WIFE NOT ENTITILED TO MAINTENANCE

The woman in a live-in relationship and second wife is not entitled to maintenance unless she fulfills certain parameters, the Supreme Court in VELUSAMY Vs D PATCHAIAMMAL [2010 (10) SCC 469] had observed that merely spending weekends together or a one night would not make it a domestic relationship.

A bench comprising Justices Markandey Katju and T S Thakur said that in order to get maintenance, a women, even if not married, has to fulfill the following four requirements:

    1. The couple must hold themselves out to society as being akin to spouses.

    2. They must be of legal age to marry.

    3. They must be otherwise qualified to enter into a legal marriage, including being unmarried.

    4. They must be voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

The Supreme Court observed, in our opinion not all Live-in relationships will amount to a relationship in the nature of marriage to get the benefit of the Protection of Women from Domestic Violence Act, 2005. To get such benefit the conditions mentioned above must be satisfied, and this has to be proved by evidence. If a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purposes and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage.

 The Apex court passed the judgment while setting aside the concurrent orders passed by a matrimonial court and the Madras High Court awarding Rs 500 maintenance to Patchaiammal who claimed to have married the appellant D Velusamy. 

Velusamy had challenged the two Court’s order on the ground that he was already married to one Laxmi and Patchiammal was not married to him though he lived with her for some time. 

The Apex court also observed, "No doubt the view we are taking would exclude many women who have had a Live-in relationship from the benefit of the 2005 Act (Protection of Women from Domestic Violence Act), but then it is not for this court to legislate or amend the law. Parliament has used the expression 'relationship in the nature of marriage' and not 'Live-in relationship'. The court in the garb of interpretation cannot change the language of the statute," the bench observed.

Related Articles:

Mutual consent divorce in India

Legal Principles

Legal perspective of the Live-in relationship

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

NO SYMPATHY IN CORRUPTION CASES

The Supreme court refused to render mercy in a corruption case. The Supreme Court in State of Rajasthan Vs Dr. Rajkumar Agarwal & Another, observed that rampant corruption is seen in every walk of our life. People, particularly those holding high office, are frequently seen accepting illegal gratification. In such serious cases mercy at this stage may send wrong signals. The Supreme Court refused to accede to the request of the respondent No.1 to take a kindly view of the matter because he is on the verge of retirement and that he had suffered the agony of investigation since 2007.

The complaint was that the respondent No.1 demanded Rs.5000/- as bribe for the operation and for better treatment of the complainant’s aunt. The complainant gave a sum of Rs.2,500/- at the time of operation. The complainant stated that his aunt was still in hospital and the respondent No.1 was demanded the remaining sum of Rs.2,500/-. In this matter the conversation was recorded, the money was recovered and hand wash of the respondent No.1 was taken which turned pink. After following the necessary formalities, FIR came to be registered.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates