Assault and criminal intimidation on facebook

Aggressive comment on Facebook page of Police

Whether Facebook page of the Bengaluru traffic police is a public forum meant for citizens to discuss and post their grievances and whether  the comment  posted on the Facebook could prima facie constitute the offence of assault and criminal intimidation?

 Section 353 defines assault and is as under:

353. Assault or criminal force to deter public servant from discharge of his duty.- Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

A reading of the above provision shows that the essential ingredients of the offence under Section 353 IPC are that the person accused of the offence should have assaulted the public servant or used criminal force with the intention to prevent or deter the public servant from discharging his duty as such public servant. By perusing the materials available on record, it appears that no force was used by the appellants to commit such an offence. There is absolutely nothing on record to show that the appellants either assaulted the respondents or used criminal force to prevent the second respondent from discharging his official duty. Taking the uncontroverted allegations, in our view, that the ingredients of the offence under Section 353 IPC are not made out. Continue reading “Assault and criminal intimidation on facebook”

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Custodial Interrogation to obtain confession is not permissible

Non-cooperation of accused with investigator:

Petition for cancellation of bail on the allegations that accused refused to confess to the I.O. if permissible?

“…It appears, the IO was of the view that the custody of the appellant is required for recording his confessional statement in terms of what the co-accused had already stated in the Statement under Section 161 of the Code of Criminal Procedure, 1973. The IO was of the opinion that the appellant was not cooperating because he kept reiterating that he had not purchased the food-grains. The purpose of custodial interrogation is not just for the purpose of confession. The right against self-incrimination is provided for in Article 20(3) of the Constitution. It is a well settled position in view of the Constitution Bench decision in Selvi and others v. State of Karnataka (2010) 7 SCC 263, that Article 20(3) enjoys an “exalted status”. This provision is an essential safeguard in criminal procedure and is also meant to be a vital safeguard against torture and other coercive methods used by investigating authorities. Therefore, merely because the appellant did not confess, it cannot be said that the appellant was not cooperating with the investigation. However, in case, there is no co-operation on the part of the appellant for the completion of the investigation, it will certainly be open to the respondent to seek for cancellation of bail.

Continue reading “Custodial Interrogation to obtain confession is not permissible”

Marital rape with a girl below 18 years

Sexual intercourse with a bride below 18 years if a rape.

Whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape? 

Exception 2 to Section 375 of the Indian Penal Code, 1860 (the IPC) answers this in the negative, but in our opinion sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. The exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved.

Continue reading “Marital rape with a girl below 18 years”

Conviction for corruption on circumstantial evidence

Conviction under Prevention of Corruption Act, 1988

Section 13(1)(d) of the Prevention of Corruption Act, 1988 read as hereunder:-

(d) if he,–

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or Section 13(2) in The Prevention of Corruption Act, 1988 (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.

For establishing the offence under the aforesaid sections, the ingredients of the public servant having abused his position and by abusing that position he has obtained for himself or any other person any valuable thing or pecuniary advantage, has to be proved Continue reading “Conviction for corruption on circumstantial evidence”

Meaning of Competent Court under MCOCA

Meaning of organised crime

In re: Maharashtra Control of Organised Crime Act, 1999 (MCOCA) as applied to Delhi under Delhi Laws Act:

The commission of crimes like contract killings, extortion, smuggling in contrabands, illegal trade in narcotics, kidnappings for ransom, collection of protection money and money laundering, etc. by organised crime syndicates was on the rise. To prevent such organised crime, an immediate need was felt to promulgate a stringent legislation. The Government realized that organised crime syndicates have connections with terrorist gangs and were fostering narcotic terrorism beyond the national boundaries. MCOCA was promulgated with the object of arresting organised crime which was posing a serious threat to the society. The interpretation of the provisions of MCOCA should be made in a manner which would advance the object of MCOCA. Continue reading “Meaning of Competent Court under MCOCA”

Common intention u/s 34 of IPC

Vicarious criminal liability for sharing common intention

Determination of common intention:

Section 34 of Penal Code is as under:

“Acts done by several persons in furtherance of common intention.—When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.”

In order to attract Section 34 IPC, the following ingredients must be established:

(i) there was common intention in the sense of a pre-arranged plan;

(ii) the person sought to be so held liable had participated in some manner in the act constituting the offence.

Continue reading “Common intention u/s 34 of IPC”

Quashing of Criminal Proceedings in Case of Compromise

Power of High Court under section 482

Power of quashing of proceedings

Supreme Court has laid down the broad principles which emerge from the precedents on the subject, and summarised the following propositions :

(i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;

(ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable. Continue reading “Quashing of Criminal Proceedings in Case of Compromise”

Quashing of charge in case of abetment of suicide

Allegations of land grabbing resulting in victim committing suicide.

Charge framed u/s 306 IPC quashed while sustaining the charge u/s. 448 of IPC

In other words, the truth of the matter has to come out when the prosecution evidence is led, the witnesses are cross-examined by the defence, the incriminating material and evidence is put to the accused in terms of Section 313 of the Code and then the accused is provided an opportunity to lead defence, if any. It is only upon completion of such steps that the trial concludes with the court forming its final opinion and delivering its judgment. Merely because there was civil transaction between the parties would not by itself alter the status of the allegations constituting the criminal offence. Continue reading “Quashing of charge in case of abetment of suicide”

Honeypreet not participating in investigation won’t get bail.

Honeypreet Insaan seeking bail in anticipation of arrest

The broad purpose of Section 438 Cr.PC is that where a person accused of commission of a non bailable offence is apprehending arrest, he may be afforded an opportunity to approach a High Court or a Court of Session for an appropriate order of bail before actual arrest. The two factors which entitle a person to seek shelter under Section 438 Cr.PC that firstly he must be under a reasonable apprehension of being arrested and secondly that such reasonable apprehension of arrest must arise on accusation of having committed a non bailable offence. Both these factors also determine the court in which an application under Section 438 Cr.PC can be filed.

Undoubtedly, anticipatory bail intrudes in the sphere of investigation of crime and some very compelling circumstances have to be made out for grant of anticipatory bail to the person accused of serious offences and the Court must be cautious and circumspect in exercising such power of a discretionary nature. Continue reading “Honeypreet not participating in investigation won’t get bail.”

Delay in recording of statement of witnesses if vitiate investigation

Delay in recording the statements of witnesses may render investigation doubtful.

Apart from the fact that Welji’s conduct was strange and inconsistent with the normal conduct of an eye-witness, and the inordinate delay in recording his statement by the police, his evidence suffers from other material flaws, also. In his statement before the police, Welji did not specifically name Pramila (P.W. 2) as person by whose shouts, he was attracted to the scene of occurrence. In variance with what he stated at the trial, his version before the police was that he had heard ‘some ladies, (that means more than one person), shouting ‘Bachao Bachao’. Admittedly, he knew Pramila’s name prior to the occurrence. His version in the witness-box that he was attracted to the spot on hearing the shouts of Pramila, was therefore, an improvement deliberately made to fit in the prosecution story at the trial. Continue reading “Delay in recording of statement of witnesses if vitiate investigation”