Police Summoning a person from New Delhi to Kolkata on a facebook post.

Facebook post implying State bias towards a community:

The FIR contains a statement that the posts imply that:

(i) the State administration was going soft on the violation of the lock down at Rajabazar as the area is predominantly inhibited by a particular community and;

(ii) that the State administration is complacent while dealing with lock down violations caused by a certain segment of the community.

Reasonable Exercise of power of summoning:

The court must safeguard the fundamental right to the freedom of expression under Article 19(1)(a) of the Constitution. There is a need to ensure that the power under section 41A is not used to intimidate, threaten and harass.

Full Order of Supreme Court:

SLP(Crl) 4937/2020
1
ITEM NO.20 Court 6 (Video Conferencing) SECTION II-B
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No.4937/2020
(Arising out of impugned final judgment and order dated 29-09-2020
in CRAN No. 2/2020 passed by the High Court at Calcutta)
ROSHNI BISWAS Petitioner(s)
VERSUS
STATE OF WEST BENGAL & ANR. Respondent(s)

Continue reading “Police Summoning a person from New Delhi to Kolkata on a facebook post.”

Investigation by Complainant Police Officer, if vitiates the Criminal Trial?

The appellant cannot be discharged at this stage on the aforesaid ground mainly that the Investigating Officer and the complainant/informant are the same and thus the trial is vitiated.

At the outset it is required to be noted that after conclusion of the investigation, the Investigating Officer had filed the charge­sheet against the accused for the offences under Sections 354, 354A, 354B, 341, 342, 376 (2) (f) and 376 (2) (k) of the IPC. That thereafter, learned Trial Court has framed the charge against the appellant­original accused for the aforesaid offences, in exercise of its powers under Section 227/228 of the CrPC. Framing of the charge against the accused for the aforesaid offences was the subject matter before the High Court. By the impugned Judgment and Order the High Court has dismissed the Revision Application and has confirmed the Order passed by the learned Trial Court ordering to frame the charge against the accused for the aforesaid offences. Hence, the appellant­original accused is before this Court by way of present appeal.

Decision:

That it is mainly contended on behalf of the appellant that in the present case as the complainant and Investigating Officer are the same and therefore in view of the decision of this Court in the case of Mohan Lal (Supra) the entire criminal proceedings are vitiated and therefore the appellant – original accused is to be discharged. However, it is required to be noted that apart from the fact that the decision of this Court in the case of Mohan Lal (Supra) has been doubted and pursuant to the Order passed by this Court dated 17.01.2019 in SLP (Crl.) D. No.39528 of 2018, the same is referred to the larger Bench. In the subsequent decision in the case of Varinder Kumar (Supra), a three Judge Bench of this Court had an occasion to consider the decision of this Court in the case of Mohan Lal (Supra) and the three Judge Bench of this Court has held that the decision of this Court in the case of Mohan Lal (Supra) shall be applicable prospectively, it is further held that all pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal (Supra) shall continue to be governed by the individual facts of the case. Therefore, the reliance placed upon the decision of this Court in the case of Mohan Lal (Supra) by the learned Counsel appearing on behalf of the appellant/­original accused is misplaced. Now, the submission made by Shri Vikas Singh, learned Senior Advocate appearing on behalf of the appellant/­original accused that the subsequent Bench in the case of Varinder Kumar (Supra) could not have held that the decision of this Court in the case of Mohan Lal (Supra) shall be applicable prospectively is concerned, at the outset, it is required to be noted that this Bench is not considering whether in the subsequent decision in the case of Varinder Kumar (Supra), the Bench could not have considered the prospective applicability of the decision in the case of Mohan Lal (Supra) or not? The three Judge Bench of this Court held that the decision of this Court in the case of Mohan Lal (Supra) would be applicable prospectively and the same shall not affect criminal prosecutions, trials and appeals. We are bound by that decision. Therefore, we are of the opinion that the decision of this Court in the case of Mohan Lal (Supra) shall not be applicable to the facts of the case on hand as criminal prosecution has been initiated in the present case much prior to the decision in the case of the Mohan Lal (Supra). Therefore, the appellant cannot be discharged at this stage on the aforesaid ground mainly that the Investigating Officer and the complainant/informant are the same the trial is vitiated, relying upon the decision of this Court in the case of Mohan Lal (Supra). Even the decision of this Court in the case of Bhagwan Singh (Supra), relied upon by the learned Counsel appearing on behalf of the appellant­ original accused, also shall not be of much assistance to the appellant at this stage. In the case of Bhagwan Singh (Supra) and after the trial this Court held that as the complainant herself was the Investigating Officer, the case of the prosecution would not be free from doubt. It was the case after trial and not at the stage of framing of the charge. Where the complainant himself had conducted the investigation, such aspect of the matter can certainly be given due weightage while assessing the evidence on record but it would be completely a different thing to say that the trial itself would be vitiated for such infraction.

[Source: Tarun Jit Tejpal vs The State Of Goa decided by SC on 19 August, 2019]

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”