Investigation u/s 212 of Companies Act:

Investigation into the affairs of the Company:

There is no denying the fact that, the Competent Authority vide its order dated 20.06.2018 directed the SFIO to conduct an investigation into the affairs of the subject entities, in public interest. There is also no quarrel with the circumstance that, the period specified by the Competent Authority in the said order dated 20.06.2018 lapsed on 19.09.2018. There is also no dispute with regard to the fact that, the SFIO sought an extension of time, from the Competent Authority, to carry out further investigation under the mandate of the provisions of Section 212 of the said Act, only on 13.12.2018, admittedly two and half months after the period granted to them by the Competent Authority for the said purpose, had come to an end by efflux of time.

Continue reading “Investigation u/s 212 of Companies Act:”

Advertisements

Improper investigation can not result in conviction

Prosecution for rape and murder:

The case of the prosecution is that the accused had some liquor at the spot from liquor bottles and from a handi. Empty liquor bottles, a handi and some glasses were seized from the scene of crime. There is no DNA or finger prints on the glass and liquor bottles to connect the accused with the crime. In fact, PW20 – IO has admitted that the finger print report did not implicate the accused. At this stage, it is required to be noted that the accused’ DNA samples were collected during the investigation and in fact were sent for DNA analysis, but the prosecution never presented the report to the Court. No pubic hair, DNA, semen or blood of the accused were found on any of the victims. It appears that the samples were collected from the accused and were sent for analysis, but the result did not incriminate the accused.

Continue reading “Improper investigation can not result in conviction”

Abetment for committing suicide

Using abusing language by itself is not abetment.

The essential ingredients of the offence under Section 306 I.P.C. are: (i) the abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide.
The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied, accused cannot be convicted under Section 306 I.P.C.

Continue reading “Abetment for committing suicide”

Necessity of Corroboration of Testimony of Rape Victim

Conviction for rape on the basis of uncorroborated testimony of Child Victim

It is well settled by a catena of decisions of the Supreme Court that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the ‘probabilities factor’ does not render it unworthy of credence. As a general rule, there is no reason to insist on corroboration except from medical evidence. However, having regard to the circumstances of the case, medical evidence may not be available. In such cases, solitary testimony of the prosecutrix would be sufficient to base the conviction, if it inspires the confidence of the court.

Continue reading “Necessity of Corroboration of Testimony of Rape Victim”

Conviction on the basis of Extra Judicial Confession.

Conviction under Prevention of Corruption Act.

Extra-judicial confession is a weak piece of evidence and the court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. In order to accept extra-judicial confession, it must be voluntary and must inspire confidence. If the court is satisfied that the extra-judicial confession is voluntary, it can be acted upon to base the conviction.

Misappropriation of funds u/s 409 of IPC:

Continue reading “Conviction on the basis of Extra Judicial Confession.”

Judicial Review of arrest by Supreme Court under article 32 of Constitution

The arrest of Urban Naxals

The locus standi of the petitioners:

Five illustrious persons in their own field have filed this petition on 29th August, 2018 complaining about the high- handed action of the Maharashtra Police in raiding the homes and arresting five well known human rights activists, journalists, advocates and political worker, with a view to kill independent voices differing in ideology from the party in power and to stifle the honest voice of dissent. They complain that the five activists, namely, Gautam Navalakha, Sudha Signature Not Verified Bharadwaj, Varavara Rao, Arun Ferreira and Vernon Gonsalves were arrested on 28th August, 2018 from their homes at New Delhi, Faridabad, Mumbai, Thane and Hyderabad, respectively, without any credible material and evidence against them justifying their arrest, purportedly in connection with FIR No.0004/2018 dated 8th January, 2018 registered with Police Station Vishram Bagh, Pune City. This action was to silence the dissent, stop people from helping the poor and downtrodden and to instill fear in the minds of people and was a motivated action to deflect people‟s attention from real issues. The petitioners have made it clear in their petition that they were seriously concerned about the erosion of democratic values and were approaching this Court “not to stop investigation into allegations” “but” to ensure independent and credible “investigation into the arrest of stated five human rights activists.”
Continue reading “Judicial Review of arrest by Supreme Court under article 32 of Constitution”

Directions to prevent cow vigilante and mob lynching

Rule of Law:

Law, enacted for the benefit of the society by conferring rights on the citizens and to regulate social behaviour in many a sphere, is required to be implemented by the law enforcing agencies and the citizens are duty bound to follow the law treating it as sacred. Law has to be regarded as the foundation of a civilized society. The primary goal of law is to have an orderly society where the citizenry dreams for change and progress is realized and the individual aspiration finds space for expression of his/her potential. In such an atmosphere while every citizen is entitled to enjoy the rights and interest bestowed under the constitutional and statutory law, he is also obligated to remain obeisant to the command of law.

Duty of authorities:

There can be no shadow of doubt that the authorities which are conferred with the responsibility to maintain law and order in the States have the principal obligation to see that vigilantism, be it cow vigilantism or any other vigilantism of any perception, does not take place. When any core group with some kind of idea take the law into their own hands, it ushers in anarchy, chaos, disorder and, eventually, there is an emergence of a violent society. Vigilantism cannot, by any stretch of imagination, be given room to take shape, for it is absolutely a perverse notion. We may note here that certain applications for intervention and written notes have been filed in this regard supporting the same on the basis that there is cattle smuggling and cruel treatment to animals. In this context, suffice it to say that it is the law enforcing agencies which have to survey, prevent and prosecute. No one has the authority to enter into the said field and harbour the feeling that he is the law and the punisher himself. A country where the rule of law prevails does not allow any such thought. It, in fact, commands for ostracisation of such thoughts with immediacy. Continue reading “Directions to prevent cow vigilante and mob lynching”

Scope of appeal against acquittal

Duty of appellate court:

It is the duty of an appellate Court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate court in drawing inference from proved and admitted facts. It must be remembered that the appellate court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final Court of Appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court.

[Source:  Padam Singh v. State of U.P., (2000) 1 SCC 621]

Appeal against acquittal:

The power of the appellate Court in an appeal against acquittal is the same as that of an appeal against conviction. But, in an appeal against acquittal, the Court has to bear in mind that the presumption of innocence is in favour of the accused and it is strengthened by the order of acquittal. At the same time, appellate Court will not interfere with the order of acquittal mainly because two views are possible, but only when the High Court feels that the appreciation of evidence is based on erroneous considerations and when there is manifest illegality in the conclusion arrived at by the trial Court.

In the present case, there was manifest irregularity in the appreciation of evidence by the trial Court. The High Court based on sound principles of criminal jurisprudence, has interfered with the judgment of acquittal passed by the trial Court and convicted the accused as the prosecution was successful in proving the guilt of the accused beyond reasonable doubt.

[Source: Khurshid Ahmed vs. State of J & K, decided by SC on 15th May 2018]

Death due to brain hemorrhage

Distinction between Murder and Homicide not amounting to murder:

It is important to have a look at the evidence of PW 5-Dr. Arvind Kanwar who has conducted Post mortem and according to him there was an incised wound on the right parietal region of size 4” and 10” above right ear and another incised wound of 1” in size on the right index finger. He has deposed that “the brain was found congested, yet no fracture was seen on the scalp”. Though in the cross examination he has stated at one place that the injury No 2 on the scalp might be ‘grievous’ that caused brain hemorrhage. This particular fact is not noted in the postmortem report. Regarding the cause of such injury, PW5 stated that it can be caused by striking with sharp edged object and the depth of the scalp injury depends upon the force and speed. He maintains the stand that it was a ‘scalp injury’ and not ‘skull injury’. Moreover, he did not measure the depth of the head injury which was necessary for classification of injury. Continue reading “Death due to brain hemorrhage”

Prosecution for perjury

Scheme of Section 195 read with sec. 340 of Cr. P.C.

The prosecution for perjury should be sanctioned by courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely.

No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge.

[Source: Chajoo Ram v. Radhey Shyam, AIR 1971 SC 1367, 1971 SCR 172]

In view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the section is conditioned by the words “court is of opinion that it is expedient in the interests of justice”.

Continue reading “Prosecution for perjury”