Tag: Criminal Law

5
Jun

Probation: Reformative Aspect of Criminal Justice

Written By- Adarsh Pharasi

‘Hate the Crime not the Criminals’. These words of Mahatma Gandhi reflect the modern approach of Penology which concentrates on reforming criminals. No one is born-criminal, it is the unfavourable circumstances in our life which makes a criminal. Therefore  probation serves the reformative approach of penology and aims at rehabilitating offenders to the norms of society to become a law abiding citizen. In the words of Sutherland and Cressey:

“Probation is the status of a convicted offender during a period of suspension of the sentence in which he is given liberty conditioned on his good behaviour and in which the state by a personal supervision attempts to assist him to maintain good behaviour.”

It is a method in which, rather than imprisoning the offender, is placed under the supervision of Probation officer for a specified period as per the conditions laid down by the court, with a view for his reformation.

Laws pertaining to Probation in India:

Code of Criminal Procedure, 1898 comprised the provision for probation of offenders under Section 562. After amendment Code of Criminal Procedure, 1974 consist of the said provision under Section 360. The Sub-section 1 Section 360 forms two classes of offenders entitled for probation:

  1. Any person not under 21 years of age convicted of an offence punishable with fine only or imprisonment for a term of seven years or less, and no previous conviction is proved against the offender, or
  2. Any person under 21 years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender.

The provisions of the section are supplemented and elaborated by Probation of Offenders Act, 1958. Further Section 361 of the code makes it mandatory for the court to record reasons for not granting probation to an offender where the court could have granted probation. But Section 19 of the Schedule Cast and Schedule Tribes (Prevention of Atrocities) Act, 1989 restricts the application of provisions of Sec. 360 of CrPC and Probation of Offenders Act, 1958 upon the offender above the age of 18 who has committed offence under Schedule Cast and Schedule Tribes (Prevention of Atrocities) Act, 1989.

Procedure for Probation under Probation of Offenders Act

The act empowers the power to grant probation by court by two means:

  1. Power of Court to release certain offenders after admonition(Section 3)
  2. Power of Court to release certain offenders on good conduct(Section 4)

Probation after admonition may be granted upon the discretion of court if the person is convicted of offence of theft, misappropriation, cheating or any other offence punishable with two years of imprisonment or fine, or both and there is no other previous conviction of any offence.

Probation on good behaviour is granted when the court having regard to the nature of offence and offender and his good conduct thinks fit to release him on bond, with or without surety, that the offender will present himself to receive sentence in front of authority when called upon, not exceeding three years only when the offence for which the person is found guilty is not punishable with death sentence or imprisonment for life. The Court can appoint a probation officer for supervision of the offender during for a period not less than one year.

The Court may also require the offender to pay compensation as fine for his release on probation under section 5 of the Act.

Section 8: Variation of Condition of Probation

(1) If, on the application of a probation officer, any court of opinion that in the interests of the offender and the public it is expedient or necessary to vary the conditions of any bond entered into by the offender, it may, at any time during the period when the bond is effective, vary the bond by extending or diminishing the duration thereof so, however, that it shall not exceed three years from the date of the original order or by altering the conditions thereof or by inserting additional conditions therein;

Provided that no such variation shall be made without giving the offender and the surety or sureties mentioned in the bond an opportunity of being heard.

(2) If any surety refuses to consent to any variation proposed to be made under sub-section  (1), the court may require the offender to enter into a fresh bond and if the offender refuses or fails to do so, the court may sentence him for the offence of which he was found guilty.

(3) Notwithstanding anything hereinbefore contained, the court which passes an order under section 4 in respect of an offender may, if it is satisfied on an application made by the probation officer, that the conduct of the offender has been such as to make it unnecessary that he should be kept any longer under supervision, discharge the bond or bonds entered into by him.

Bond for probation

An offender is required to enter into a bond, with or without surety to be released from incarceration on probation. In Dasappa v. State of Mysore, AIR 1965 Mys 224., The release of probationer on bond with or without sureties on probation of good conduct is, in nature, a preventive measure which seeks to save the offender from the evil effects of 5 / 18 THE PROBATION OF OFFENDERS ACT, 1958 institutional incarceration and affords him an opportunity of reformation within the community itself. It is a discretionary remedy rather than a mandatory one. But the bond may be terminated if the offender hasn’t complied with the conditions of probation order, or under the conditions given under Section 8 of the Act. But, in Durgesh Ranjan Chakraborty v. The Administrator of Tripura, AIR 1965 Tripura 26., it has been said that for the forfeiture of bond and the failure to pay penalty on behalf of surety, the court is not empowered to order surety’s arrest.

Probation officer

Under Section 13 of the act a probation officer is the person appointed to be a probation officer by the State Government or recognised as such by the State Government; or a person provided for this purpose by a society recognised in this behalf by the State Government; or in any exceptional case, any other person who, in the opinion of the court, is fit to act as a probation officer in the special circumstances of the case. A probation officer works under the control of the district magistrate of the district in which the offender for the time being resides and his reports are confidential ‘provided that the court may, if it so thinks fit, communicate the substance thereof to the offender and may give him an opportunity of producing such evidence as may be relevant to the matter stated in the report.’(Section 7)

Special Provision for offenders under twenty one years of age

Under Section 6 of the act the offenders under 21 years of age convicted of crime punishable with imprisonment(not life imprisonment) shall be given benefit of section 3 and 4 by the court but if the court with regard to the nature of offence and offender, report of probation officer is of the opinion that such benefit shall not be granted to the offender then it can do so with reasons recorded for its decision.

Conclusion

The provisions of Section 360 of Cr.P.C. and Probation of Offenders Act are same except that for the special provision for offenders under 21 years of age Cr.P.C. provides that there should not be any other conviction but the condition don’t apply to probation under Sec. 6 of Probation of Offenders Act. But the scope of these two enactment shll not be confused as under Sec. 19 of The Probation of Offenders Act provides that the Sec. 16, 17 and 360 of Cr.P.C. will not apply in states where the said Act is operative. Besides these two enactments, the Juvenile Justice (Care and Protection of Children) Act, 2000 also provides for the release of children who have committed offences to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, or any fit institution as the Board may require, for the good behaviour and well-being of the juvenile for any period not exceeding three years.

22
Oct

TRIAL PROCEDURE IN CRIMINAL CASES

Shree Rastogi , Legal News Report

In law, a trial is a coming together of parties to a dispute. A crime or offence (or criminal offence) is an act harmful not only to some individual but also to a community, society or the state (a public wrong).Such acts are forbidden and punishable by law. In simple words, an act and omission that constitutes an offence that may be prosecuted by the state and is punishable by law. The punishment of such crime is decided by the following procedures of criminal trial. India has a well-established statutory, administrative and judicial framework for criminal trials. The entire criminal law consists of three core acts:-

  1. Indian Penal Code,1860
  2. Code of Criminal Procedure, 1973
  3. Indian Evidence Act, 1872

Indian Penal Code, 1860 is the substantive criminal law which defines various crimes/ offences that are punishable in India and prescribes the punishment laid down for commission of that crime/ offence and the Code of Criminal Procedure, 1973 or the Indian Evidence Act, 1872 are the procedural criminal laws for conducting a trial in India. Code of Criminal Procedure lays down the procedure that is to be mandatorily followed while pursuing a case or the process of litigation. It also lays down the procedure to be followed by the police while doing their duty like filling of FIRs, investigation, filing charge sheet, etc. The Indian Evidence Act contains a set of rules and allied issues governing admissibility of evidence in the Indian courts of law.

Indian Penal Code and Code of Criminal Procedure are both together known as “Twin Sisters” of criminal law.

Types of Criminal Trial

According to the Code of Criminal Procedure, a Criminal Trial is divided into three types:-

  1. Warrant Trial
  2. Summon Trial
  3. Summary Trial

Warrant Cases: – Section 2(x) of Code of Criminal Procedure, 1973 defines; a warrant case is one which relates to the offences punishable with death, imprisonment for life or imprisonment for a term exceeding two years. The trial in warrant cases starts whichever by filing of FIR in a police station or by filling a complaint before a magistrate. Later, if the magistrate is satisfied that the offence is punishable for more than two years, he sends the case to the sessions court for trial.

The stages of trial in warrant cases are specified from section 238 to 250 of the code of criminal procedure, 1973.

Stages of Criminal Trial in a Warrant Case: –

  • First Information Report: Section 154 of the criminal procedure code talks about FIR or First information Report is registered. FIR puts the case into motion. A FIR is information given by someone (aggrieved) to police relating to commitment of an offense.
  • Investigation: After FIR the next step is the investigation by investigating officer. The Investigating officer made conclusion by examining the facts and circumstances, collecting evidence, examining various person and all other necessary steps for completing the investigation and then that conclusion is filed to the magistrate as a police report.
  • Charges: After considering the police report and other important documents the court frames charges under which accused is to be trialed. In warrant cases, the charges should be framed in writing.
  • Plea of guilty : section 241 of Code of Criminal Procedure, talks about the plea of guilty, after framing of charges to accused is given opportunity to plead guilty, and responsibility lies with the judge to ensure that the plea of guilt was voluntarily made.
  • Prosecution evidence: After charges framed and accused pleads guilty, then the court involves the prosecution to produce evidence to prove the guiltiness of the accused. The prosecution is required to support their evidence with the statements from its witnesses. This process is called “examination in chief”.
  • Statement of the accused: Section 313 of the criminal procedure code provides an opportunity to accuse to be heard and explain the facts and circumstances of the case. The statements of accused are not recorded under oath and can be used against him in the trial.
  • Defense evidence: opportunity is given to the accused where he is not being acquitted to produce so as to defend his case. In India, the burden of proof is on the prosecution the defense, in general, is not required to give any defense evidence.
  • Judgment: The final decision of court with reasons given in support of the acquittal or conviction of the accused is known as judgment.

Summon Cases:

According to section 2(w) of code of criminal proceeding, those cases in which an offense is punishable with an imprisonment of fewer than two years is a summon case. This case does not require the method of preparing the evidence.

Stages of Criminal Trial in a Summon Case:

  • Pre-trial: in this stage, the process such as filing of FIR and investigation is conducted.
  • Charges: In this trial, charges are not framed in writing. Then accused seemed before the court or is brought before the court then the Magistrate would orally state the facts of the offense he is answerable.
  • Plea of guilty and absence of the accused: In cases where the accused wants to plead guilty without appearing in the court, the accused has to send rs.1000/- to the Magistrate (through by post or a messenger(lawyer)).The absentee should also send a letter containing acceptance of guilt and the amount of fine provided in the summons.
  • Prosecution and defense evidence: the procedure followed should be very simple elaborate procedures are eliminated. If the accused does not plead guilty, then the process of trail starts. The prosecution and the defense are asked to present evidenced in support of their cases. The Magistrate is also empowered to take the statement of the accused.
  • Judgment: when sentence is passed, the parties need not to argue on the amount of punishment given. The sentence is the sole discretion of the judge. If the accused is acquitted, the prosecution has the right to appeal is also extended to the accused.

Summary Trial

Those cases in which an offense is punishable with an imprisonment of not more than six months can be tried in a summary way. The summary trials are reserved for small offenses to reduce the burden on courts and reduce the burden on courts and to save time and money.  Cases which generally take only one or two hearings to decide the matter comes under this category.

The trial procedure is give from section 260 to 265 of the Code of Criminal Procedure.

 Stages:

  • The procedure followed in the summary trail is similar to summons case.
  • Imprisonment up to three months can be passed.
  • In the judgment, the judge should record the substance of the evidence and a brief statement of the finding of the court with reasons.

 

References:

 

blog.ipleaders.in

 

 

11
Aug

*Some most important judgments related to 125 CrPC, 1973

1. 125 CrPC cannot be filed twice, only 127 CrPC is allowed. (High Court Gujrat), Bench Hbl J. M. R. Shah, Order on 30-08-2011, Cr RA/69/2011 8/8, Revision Appeal No. 69 of 2011, Chauhan Anjanaben Jayantibhai Vs Chauhan Kanaiyalal Mohanlal.( Chauhan vs Chauhan)

2. No Multiple maintenances are allowed. (High Court Gujrat), Bench Hbl J. Akhil Kureshi, order on 21-10-2010, Special Appeal No. 2080 of 2010, SCR. A/2080/2010, 2/2, Hemlataben Maheshbhai Chauhan Vs State of Gujarat.

3. Multiple petitions of maintenance are not allowed. (High Court Delhi), Hbl J. Shiv Narayan Dhingra, order on 30-08-10, Crl. M. C. No. 130/2010 and Crl. M. A. No. 504/2010, Rachna Kathuria vs Ramesh Kathuria. Citation No. 173 (2010) DLT 289.

4. Double Jeopardy. Same relief of maintenance cannot be asked twice in two different courts. Litigant cannot ride two horses. (High Court Mumbai), Bench Hbl B. Wahane, J. Order on 17-07-1991. Ravindra Haribhau Karmarkar Vs Mrs. Shaila R. Karmarkar. Citation No. 1992 Cri LJ 1845.

5. Separate income of wife can be taken in to account in determining the amount of maintenance payable to her. (Supreme Court), Bench Hbl JJ. Sarkaria R. Singh, Chandrachud Y.V., Gupta A.C., Order on 17-10-1974, Bhagwan Dutt Vs Kamla Devi and Ors. Citation Nos. 1975 AIR 83; 1975 SCR (2) 483; 1975 SCC (2) 386; Citator R 1986 SC 984 (5), R 1987 SC 1100 (5).

6. No parallel 125CrPC and DVA for maintenance. (High Court Delhi), Bench Hbl J. Shiv Narayan Dhingra, order on 22-09-2010, Crl. R. P. No. 633 of 2010, Crl M. A. No. 15451/ 2010, Renu Mittal Vs Anil Mittal & Ors. Citation No. 173 (2010) DLT 269.

7. Interim maintenance increase illegal. (Supreme Court), Bench Hbl JJ. B.N. Agarwal and G. S. Singhvi, Order on 23-02-2009, Civil Appeal No. 1163/2009, SLP (C) No. 16742 of 2006, Sanjeev Gupta Vs Salini Gupta. Citation No. 2009 INSC 390 (23 February 2009); II (2012 DMC 705.
8. Claim of high status of husband is not sufficient for interim maintenance. (High Court Delhi), Bench Hbl J. Shiv Narayan Dhigra, order on 01-09-2010, Crl M. C. No. 4066 of 2009 and Crl. M. A. No. 13807 of 2009, Amit Khanna Vs Priyanka Khanna.

9. Interim Maintenance cannot be increased based on husband salary hike. (High Court Mumbai), Bench Hbl R. S. Dalvi, J. order 26-02-2010, W. P. No. 6686 of 2009, Ritula Singh Vs Lt. Col. Rajeswar Singh.

10. Children can claim maintenance from mother. Punishment awarded U/s 193 IPC to wife for providing false evidence to the court. (High Court Delhi), Hbl J. Dr.S. Murlidharan, order on 23-03-2009, Crl. M. C. 1130/2008 & Crl. M. A. 4231/ 2008,   Jagdish Prasad Vs State of NCT Delhi & Ors.

11. Maintenance arrears of one year only from the date of filing the petition. (High Court AP), Hbl D.J. Raju, J., order on 31 March 1984, Jangam Srinivasa Rao Vs Jangam Rajeswari & ors. Citation No. 1990 Cri LJ 2506.

12. Take EMI into consideration in maintenance and reduced maintenance. (Supreme Court), Hbl A. Kabir and C. Joseph, JJ., order on 28-08-2009, Crl Appeal No. 879 of 2009, Arising on SLP ( Crl.) No. 7503 of 2008, SLP (Crl.) No. 7924 of 2008, Bhushan Kumar Meen Vs Mansi Meen @ Harpreet Kaur. Citation Nos. (2010) 15 SCC 372 A; (2010) 15 SCC 372 B.

13. Wife cannot take advantage of two orders of maintenance passed by civil as well as criminal court. (HC Maharastra), Bench Hbl R. Lodha J., order on 13-09-1995, Gomaji Vs Smt. Yasoda & Ors. Citation No. 1(1996) DMC 487; II (1996) DMC 469.

14. Working wife no maintenance in HMA 24, 125 CrPC only for child. (Supreme Court), Bench Hbl JJ. T. Chatterjee and H. Dattu, order  on 23 March 2009, Civil Appeal Nos. 1789-1790 of 2009, SLP (C) Nos. 24589-24590 of 2007, Anu Kaul Vs Rajeev Kaul. Citation Nos. (2009) INSC 582 (23 March 2009); (2009) 13 SCC 209.

15. Meaning of unable to maintain in 125 CrPC and grounds for maintenance. (Supreme Court), Bench Hbl J. Dr. Arijit Pasayat, order on 27-11-2007, Appeal Cr. 1627 of 2007 arising on SLP No. (Crl.)  4379 of 2006, Chaturbhuj Vs Sita bai. Citation Nos. (2008) 2 SCC 316;

Adv Jagan Nath Bhandari,  PHHC, Chandigarh

11
Aug

White Collar Crime

Shree Rastogi, B.Com LLB, SHRI RAMSWAROOP  MEMORIAL UNIVERSITY

What is it?

White Collar Crimes are crimes that are committed by an individual in respect of high social status subsequently during the course of his occupation. It’s committed by salaried professional workers and persons in business and they therefore also involves a form of financial theft or fraud.

The term “White Collar Crime” was defined by sociologist Edwin Sutherland in 1939. These crimes are non-violent crimes performed by business people through representing activities who are able to access large amount of money for their financial profit.

People who are indulged in this crime are who involved in otherwise, lawful businesses and cover ups a wide range of activities; it is being expanding over business and technology. The laws relating to this crime depends upon the exact nature of the crime committed.

Types of White Collar Crimes:

Theft:

  • Blackmail (demanding money in exchange not exposing secrets, causing physical harm, damaging property).
  • Embezzlement or Misappropriation of Property: (Theft of money, goods or services by an employee).

Fraud:

It involves the intentional misrepresentation or omission of a material fact and someone must suffer a monitory loss as a result. It includes Bankruptcy fraud, Computer fraud, Health care fraud, Telemarketing fraud, Credit card fraud, Mail fraud, Government fraud, Financial fraud, Securities fraud, Counterfeiting.

Violation of Statutory Law

  • Anti-Trust Violation: Fixing prices and building monopolies.
  • Bribery: Offering money, goods, services, information or any gift to someone in order to have control to its actions.
  • Tax evasion: Providing wrong information in Tax forms or not filling tax returns at all.
  • Money laundering: The concealment of origin of legally obtained money.
  • Public Corruption: Breaching the public trust/or abusing a government position, usually in connection with private sector accomplices.
  • Environmental Law violations: Discharging the toxic substances into air, water or soil that harms people, property or environment, including air and water pollution and air dumping.

It also includes insider training, kickbacks, extortion, etc.

Causes of White Collar crime:

Each and every crime as its own reasons, there is a general perception that these crimes take place in sake of greed or economic instability. Some other reasons like: situational pressure, or the inherent nature of having more than others. There are some people, who want quick benefits with minimal efforts; some thinks whatever is performed by them is not a crime as the acts involved doesn’t looks like street crimes; necessity is also an another factor for committing these crimes in order to support their family. The main reason is lack of awareness (as this crime is different from traditional crimes and people hardly understand it though they are the worst victims of crime).

White Collar Crime in India

These crimes are increasing rapidly in our country by the advancement of commerce and technology. We got the new dimensions to computer related crimes mostly termed as Cyber Crimes. The proportion of crimes is increasing as per the development of new websites. Largely affected areas are financial institutes, industries, business, transportation etc. The crime is an act or omission which constitutes an offence and is punishable under the law. Increment of crimes on daily basis do injures the society on a large scale. In India there are some scams that shook India were:

Satyam Fraud case in 2009: Rs.7, 000-crore fraud by former Satyam CEO Ramalinga Raju started off without any background in IT Company grew with India’s IT story. The scam broke after a spate of resignations force the company to look at financials. The case questioned the role of auditors, shareholders, senior managements.

The Mallya Case in 2016: Directorate has registered money laundering case against Vijay Mallya and his associates to investigate the alleged loan default of Rs. 6,027-crore.

Laws relating to it:

The government of India has introduced various regulatory legislations, the breach of which will amount to white collar criminality. Some of these legislations are Essential Commodities Act 1955, The Industrial (Development and Regulation) Act, 1951.The Import and Export (Control) Act, 1947, the Foreign Exchange (Regulation) Act, 1974, Companies Act, 1956, Prevention of Money Laundering Act, 2002.

Some provisions are been made under the Indian Penal Code to check crimes such as Bank fraud, Insurance fraud, Credit Card fraud etc. In case of Money Laundering several steps have been taken by the government of India to cure this problem. The Reserve Bank of India issued directions to be strictly followed by the banks under KYC ( Know Your Customer) guidelines. The banks and financial institutions are required to maintain the records of transactions for a period of ten years.

Section 43 and Section 44  of the Information Technology Act prescribe the penalty for the offences:

  • Unauthorized copying of an extract from any data.
  • Unauthorized access and downloading files.
  • Introduction of viruses or malicious programs.
  • Damage to computer system or computer network.
  • Denial of access to an authorized person to a computer system.
  • Providing assistance to any person to facilitate unauthorized access to a computer.

 

Conclusion:

As a coin has two faces similarly everything in World has its faces; if we talk about technology its achievements gave us so many things to make us advanced but sometimes this advancement of science and technology give birth to newer form of criminality known as White Collar Crime that has arisen. India to maintain its growth story needs to reduce fraud and corruption in the government and the private sector. The special Acts dealing with White Collar Crimes and the provisions of Indian Penal Code should be harmoniously interpreted to control the problem of these crimes. Although some people think that others are also violating the laws and so it is not bad if they will do the same. This type of mentality of people will definitely lead to increase in corruption and crimes. There are some protective measures also that do taken place. There are provisions of India Penal Code dealing with White Collar Crimes should be amended to enhance punishment that is totally suitable in tune with changing socio-economic conditions.

 

 

 

 

 

 

 

25
Jul

Legal Shorts; SC: Sec. 498-A IPC – “Cruelty” – What amounts to.

Deceased wife’s annoyance due to a relative’s children being looked after in the husband’s home, held does not amount to her being treated cruelly or being harassed .

Case: Lella Srinivasa Rao Vs. State of A.P.

Citation:
(2004) 9 SCC 713 : 2004 SCC (Cri) 1479 : AIR 2004 SC 1720.
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Shared by:
ADV. MAHESH VASWANI,
MUMBAI.
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22
Jul

Certain issues with evaluation of evidence a lawyer must know

  1. Decided cases are not of much use in evaluating evidence. Each case depends on its own facts. A close similarity between one case and another is not enough to warrant like treatment because a significant details may alter the entire picture. One should avoid the temptation to decide cases by matching the colour of one case against the colour of another. The board resemblance between two cases is not at all decisive.[1] A judgment is not to be read as a statute. It must be read reasonably in its entirely. The effect of the judgment must be found out from the language used and the attendant circumstances in which they had been used.[2]
  2. Observation of courts are to be read neither as Euclid’s Theorems nor as provisions of statutes and that too taken out of their context. They must be read in the context in which they appear to have been made. Disposal of cases by blindly relying on a decision is not proper because an additional fact or a different fact may make a world of difference between conclusion inn two cases. Courts should not place reliance on decisions without discussion fact situation of the case on which reliance is placed.[3]
  3. There is no hard and fast rule regarding evaluation of evidence.[4] A witness can be disbelieved regarding some accused and believed regarding the other accused.[5] Where there are large number of accused and injured, witness can get confused and evidence cannot be rejected on the mere basis of contradiction.[6] In such case, conviction of any one could be sustained only if two or more witness support the case against that person; else, benefit of doubt must go to the particular accused.[7]
  4. Victims may act differently. Reaction and resistance would depend upon a variety of circumstances.[8] If eyewitness are not courageous enough to inform police or to go to the help of the injured, who was not a relative, it cannot be inferred that they had not witnessed the occurrence or that they are giving false evidence.[9]
  5. In a given case, instinct of self-preservation can be the dominant instinct.[10]
  6. No evidence should be adjudged adversely, making any other evidence including medical evidence as the sole touchstone for the test of credibility. Evidence must be tested for its own inherent consistency and inherent probability of that version, consistency with version of other witness held to be creditworthy, consistency with undisputed facts, credit-worthiness, their performance in the witness box, their power of observation, etc. then probative value of such evidence becomes eligible to be put into scale.[11]
  7. Culpability of each accused (in case and counter case) must be determined with reference to their individual overt acts.[12]
  8. When witnesses are rustic persons, their behavioural patterns, perceptions and habits must be taken into consideration and appreciated. Approaches that are too sophisticated, based on assumptions about human conduct cannot be applied to people accustomed to ways of village, as they may not have keen sense of time.[13]
  9. Fringe variations, discrepancies in details, contradictions in narration, and embellishments in non-essential part cannot militate against veracity of the core of testimony, if there is an impress of truth and conformity to probability in substantial fabric of prosecution story.[14]
  10. Exaggeration in the prosecution’s case about the commencement of the incident may not detract from the incident that was proved by eyewitness.[15]

[1] Parasa raja Manikyala Rao v. State of Andhra Pradesh, AIR 2004 SC 132

[2] Prem Singh v. State of Haryana, AIR 2009 SC 2573

[3] Union of India v. Arulmozhi Iniarasu, AIR 2011 SC 2731

[4] Dalbir Singh v. State of Punjab, AIR 1979 SC 1384

[5] Ahmed Suleman Bhorat v. State of Gujarat, AIR 1971 SC 991

[6] Har Prasad v. State of Madhya Pradesh, AIR 1971 SC 1450

[7] Masalti v. State of UP, AIR 1965 SC 202

[8] State of UP v. Samman Dass, AIR 1972 SC 677

[9] Apren Joseph alias Current Kunjunju v. State of Kerala, AIR 1973 SC 1

[10] Sucha Singh v. State of Punjab, AIR 2003 SC 3617

[11] State of UP v. Krishna Gopal, AIR 1988 SC 2154

[12] Kewal Singh v. State of Punjab, AIR 2004 SC 72

[13] Shivaji Sahebrao Bobade v. State of Maharastra, AIR 1973 SC 2622

[14] Shivaji Sahebrao Bobade v. State of Maharastra, AIR 1973 SC 2622

[15] Parsuram Pandey v. State of Bihar, AIR 2004 SC 5068

22
Jul

Place of trial for criminal misappropriation or breach of trust

The criminal misappropriation under section 403 IPC and Criminal Breach of Trust under section 406 IPC, it not essential that at the time the property is said to have been received or retained by the accused person he must have a dishonest intention to misappropriate it or to commit criminal breach of trust with reference to it. It is enough if the property which is the subject of the offence was received or retained by the accused at a particular place to give jurisdiction to the magistrate of that place to try the case.[1] Even the Magistrate having jurisdiction over the place where the property was to be returned or accounted for can try the offence. therefore, even supposing falsification of account has taken place outside jurisdiction, but if the accountability is within jurisdiction, the court can try the case. Where the accused, a former employee of a company having its Head Office at Calcutta, collected money for the company at Bombay Branch Office of the company, it was held that the Bombay Court had jurisdiction to try the case of criminal breach of trust under section 408 of IPC and not the Calcutta Court, and the case was transmitted to the court of Chief Metropolitan Magistrate, Bombay for trial.[2] The Orissa High Court held that an offence of Criminal Breach of Trust can be tried by any one of the following Court:-

  • Within whose jurisdiction the offence was committed;
  • Where any part of the property, which was the subject-matter of the offence, was received or retained[3]; and
  • At the place where property was required to be returned or accounted for by the accused.[4]

 

[1] Laxman, (1926) 51 Bom 101: 28 Bom LR 1292

[2] S.R. Sharma v. State of West Bengal, 1993 Cr Lj 831 (Cal)

[3] Jijo v.State, 2003 CrLJ 256 (Kant)

[4] Raja Ram Patnaik v. Indian Metal & Ferro – Alloys Limited, 1996 CrLJ 732 (Ori)

22
Jul

Conflict between a provision of Indian Penal Code and Special Law

The Supreme Court, while dealing with Section 41 IPC in the case of Kaushalya Rani v. Gopal Singh,[1] has observed that the expression ‘general law’ and ‘special law’ are relative terms and referred to a particular subject dealt with by respective act so that it is not possible logically to label any set of laws as being general laws or special law. the court is aware that the expression ‘special law’ defined in Section 41 IPC cannot be taken to mean any enactment which creates fresh offences not made punishable under the Indian Penal Code.[2]

If an offence is covered by both the provisions namely one of IPC and Special Act, the question may crop up as to which enactment the offender would be dealt with under. In view of the principle ‘geberalia specialibus non deropgant’ general things do not derogate from special. Special Acts are not repealed by general Acts unless there be some express reference to the previous legislation or a necessary inconsistency in the two Acts standing together, which prevents the maximum from bing applied.[3]

When there is conflict between a specific provision and the general provision, specific provision prevails over the general provision. The general provision apply to only such cases which are not governed by the special provisions. The rule applies to resolve conflicts between different provisions in different statutes as also in the same statute,[4] a person cannot be punished under the both the Penal Code and a special law for the same offence,[5] and ordinarily the sentence should be under the special Act.[6] This is, however, confined to cases where the offences are coincident or practically so.[7]

Thus, where an act was an offence under a special law and offence could be punished under that special law, the general law would not apply and this was the principle laid down in Section 5 of IPC.

The prosecution of road traffic offenders under various penal provision of Motor Vehicles Act is the Rule and the prosecution of such guilty persons under various provisions of Indian Penal Code is violative of the settled principles of law as well as contrary to the legislative intent. The only exception to this rule is to book traffic offenders under Section 304A IPC.[8] The offences mentioned in Factories Act and IPC are distinct and different. Factories Act does not prescribe any punishment regarding the rash and negligent act of the occupier or the manager, which results in the accident in factory in which any worker died or received bodily injury. When there is no specific punishment provided under special law then the punishment prescribed under general law. i.e, IPC comes into operation.

[1] AIR 1964 SC 260

[2] Kirpalsingh Pratapsingh Ori v. Balvinder Kaur Hardipsingh Lobana,2004 CrLJ 3786 (Guj)

[3] Harlow v. Minister of Transport, (1951) 2 KB 98

[4] J.K. Cotton Mills v. State of U.P. AIR 1961 SC 1170

[5] Hussun Ali, (1873) 5 NWP 49

[6] Kuloda Prasad Majumdar,(1906) 11 CWN 100

[7] Jyoti Prasad Gupta v. Emmperor, 33 CrLJ 236 All (237-238) relying on Emperor v. Mohanlal, AIR 1923 Pat 1: 23 CrLJ 625 (FB)

[8] Ramchandra Rabidas alias Ratan Rabidas v. State of Tripura, 2009 CrLJ 1342