Sri Ramanand Ram S.D.J.M, Dalsingsarai, Hanuman Prasad Tiwari, Additional Sessions Judge, IIIrd Court, Samastipur must compensate the petitioner: Patna High Court

In Sunil Pandit Vs. State of Bihar, Patna High Court concluded: "As the petitioner was made to suffer a criminal trial which is not maintainable against him and he was compelled to be confined in the correctional home at different points of time. This Court is of the opinion that the petitioner should be compensated since the petitioner was made to suffer the agony and trauma of a criminal trial as well as detention in custody for taking cognizance against him by the learned Magistrate and putting him in trial in a case which is not maintainable against him, the petitioner is entitled to get compensation at the rate of Rs. 100/- each payable by the learned Judicial Magistrate, namely, Sri Ramanand Ram, S.D.J.M, Dalsingsarai- Samastipur and Hanuman Prasad Tiwari, Additional Sessions Judge, IIIrd Court, Samastipur, on 28th June 2016." 

The penultimate para of the judgement reads: Since the accused/petitioner cannot be booked for committing offence under Sections 498A and Section 4 of the Dowry Prohibition Act, he is acquitted from the charge, set at liberty and released from the liability of bail bond."

In his judgment, Justice Bibek Chaudhuri observed: "I am consciously issued the order for payment of compensation directing the concerned Judicial Officers to pay a token amount because in the instant case compensation is not assessed on the basis of the mental agony and trauma and social ignominy suffered by the petitioner due to seer lackadaisical approach of both the courts below. The amount of compensation is fixed as a token to remind the concerned Judicial Officers that before taking cognizance and also during judicial inquiry and trial, it is the bounden and obligatory duty of all the courts to go through the complaint carefully and then to take cognizance and proceed against the accused persons in accordance with law."

The criminal revision was directed against the judgment and order of affirmation passed by the Additional Sessions Judge IIIrd Court at Samastipur on 28th June 2016, in Criminal Appeal No. 46 of 2011, whereby and whereunder the appellate Court maintained the order passed by the trial court, of conviction for the offence punishable under Sections 498A of the IPC and Section 4 of the Dowry Prohibition Act and sentence of the petitioner to suffer imprisonment for three years and also to pay fine of Rs. 1,000/- with default clause for the offence under Section 498A of the IPC and rigorous imprisonment for one year with fine and default clause for the offence punishable under Section 4 of the Dowry Prohibition Act.

On perusal of the petition of complaint, on the basis of which, Complaint Case No. 172 of 2004 was registered, the Court found that the petitioner was not a relative of the husband of the complainant as provided in Section 498A of the IPC. It is clearly stated by the complainant in page 04 of the complaint that the present petitioner who was arrayed as accused no. 4 was an advisor of other accused persons.

The judgement reads: "Let a copy of this order be sent to the Registrar General, High Court at Patna for information and necessary action intimating the concerned Judicial Officers to comply with this order within three weeks from the date of communication." The Court's direction reads: "The concerned judicial officers are directed to deposit the fine amount in the Criminal Cash Section of the Chief Judicial Magistrate, Samastipur within three weeks from the date of this order." The judgement was delivered on April 18, 2024.

 

Judgements of Additional Sessions Judge-III, Muzaffarpur, Judicial Magistrate, Ist Class, Muzaffarpur perverse and illegal: Patna High Court

In Manoj Rai Vs.State of Bihar, Justice Bibek Chaudhuri of Patna High Court observed: "In the instant case, going through the lower court record as well as Judgments passed by the trial court and the appellate court, this Court is of the view that this is one of the rare cases where the examination of evidence by both the courts below were perverse."

The Court noted that "Both the courts below convicted the accused under Section 25 (1-B) (a) of the Arms Act. Practically, the penal provision was wrongly recorded by both the courts below. Section 25 (1-B) (a) states that whoever acquires, has in his possession or carries any firearm or ammunition in contravention of Section 3 shall be punishable with imprisonment for a term which shall not be less than two years but it may extend to five years and shall also be liable to fine. Therefore, for all practical purposes, both the courts below convicted the accused under Section 25 (1-B) (a). The penal provision states minimum punishment of two years. When minimum punishment is prescribed by a penal statute, the appellate court cannot pass any order of punishment less than minimum punishment prescribed by the statute. On this score also the impugned Judgment is illegal and inoperative." 

The order reads: "For the reasons stated above, I find that both the courts below acted illegally and with material irregularity in convicting and punishing the accused for the offence punishable under Section 25 (1-B) (a) of the Arms Act. It is unfortunate that the accused person/petitioner is in Correctional Home for about seven months. The petitioner be acquitted and released from the Correctional Home at once." The judgement was passed on April 18, 2024.

The criminal revision was directed against the Judgment and order dated August 16, 2016, passed by the Additional Sessions Judge-III, Muzaffarpur in Cr. Appeal No. 116 of 2008, whereby and whereunder the petitioner’s appeal was dismissed and the Judgment and order of conviction and sentence, passed by the Judicial Magistrate, Ist Class, Muzaffarpur, on November 29, 2008, convicting the petitioner for the offence punishable under Section 25 (1-B) (a) read with Section 26 of the Arms Act and sentencing the petitioner with imprisonment for a term of one year with fine of Rs. 1,000/-, in default further imprisonment for one month.

The case arose out of P.S. Case No.-26 Year-2002 Thana- Siwaipatti, Muzaffarpur. It was registered under Section 25(1-b)/26 of the Arms Act on the basis of a suo motu complaint filed by the Officer-in-charge of the said Police Station, namely Prem Shankar Singh. He alleged that on June 15, 2002, he along with other members of Police force and village Chowkidars went to village Koharia to conduct investigation of the Siwaipatti P.S. Case No. 26 of 2002. After completion of part investigation and search, the Police party was returning to the Police Station at about 8:30 P.M. When they were proceeding by Police Jeep towards village Ghosaut, the informant saw a person proceeding towards South with a rifle in his hand. 

The Police Officer asked him to stop, but seeing the Police party he tried to flee away. Immediately, the informant directed the members of the force, who were with him, to chase the said person. The Police party chased him and apprehended the said person. Hearing hue and cry, local people assemble at the spot.
The Police Officer/informant called two persons amongst the villagers, who were present at the spot. To witness the process of search and seizure one Mohan Paswan and Rajesh Kumar volunteered themselves. The informant conducted search of the apprehended person in presence of above named independent
witnesses and recovered one country made rifle loaded with 1.315 bore cartridge from his hand. The rifle was country made. The apprehended person could not produce any document in support of his possession in respect of the firearm. The Police Officer also seized one live cartridges of 1.315 bore from his right hand side pocket of his pant in present of the independent witnesses. 

The firearm and ammunition were seized and the accused was formally arrested. Then they returned to the Police Station and Officer-in-charge of the said Police Station submitted a written complaint against the accused, on the basis of which above named police case was registered.

The investigation was taken up by PW.5. During investigation, he examined witnesses visited the spot, send the seized firearm and ammunition to the expert to ascertain as to whether the seized material is a country made rifle or not and whether it was in working condition or not. After getting the expert’s report Police Submitted Charge-sheet. 

The Trial of the case was conducted by the Judicial Magistrate, Ist Class at Muzaffarpur and by his Judgment dated 29th November, 2008, the accused was convicted and sentenced to suffer rigorous imprisonment for two years for committing offence under Section 25 (1-B) (a) of the Arms Act. The accused was also directed to pay fine of Rs. 1,000/-, in default to suffer imprisonment for further period of one month.

The accused preferred an appeal before the Sessions Judge at Muzaffarpur. The said appeal was finally heard by the Additional Sessions Judge-III, Muzaffarpur. 

By his Judgment dated 16th August, 2016 in Cr. Appeal No. 116 of 2008, the learned Additional Sessions Judge maintained the order of conviction, modified the sentence directing that the petitioner shall suffer rigorous imprisonment for one year. The sentence of payment of find was maintained by the Additional Sessions Judge.

The order of the appellate court was under challenge in the instant revision.

The Advocate for the petitioner at the outset that the Additional Sessions Judge in the impugned Judgment mechanically affirmed the Judgment of the trial court without independent assessment of evidence on record. Therefore, the counsel for the petitioner first refers to the Judgment of the trial Court. During trial prosecution examined seven witnesses. Amongst them PW.1 is a seizure list  witness. PW.2 and PW.3 are Chowkidars, who accompanied the Police Party to the spot. The prosecution claimed that search, recovery and seizure list firearm and ammunition were made in presence of P.W.2 and P.W.3. PW.4 is the Arms expert, who examined the said firearm. PW.5 is the Investigating Officer of this case. PW.6 is the Assistant Sub Inspector of Police attached to the Siwaipatti Police Station at the relevant point of time. He received the complaint from the Officer-in-charge and registered Siwaipatti P.S. Case No. 26 of 2002. PW.7 is the informant, who was the Officer-in-charge of the Siwaipatti P.S. at the relevant point of time.

The Advocate for the petitioner pointed out that two witnesses were examined in support of defence.
He submitted with regard to evidence adduced by the witnesses on behalf of the prosecution that P.W.1 Mohan Paswan was cited as a seizure list witness by the prosecution, but during evidence he did not support the prosecution case. He stated that Police Officer obtained his signature on a blank paper at the spot on 15th June, 2002. He did not see any writing on the seizure list. No firearm or ammunition was seized from the possession of the accused in his presence. The Advocate for the petitioner submitted that PW.2 and 3, who are the Chowkidars under the Police Department also did not support the prosecution case. From their evidence it is crystal clear that they did not apprehend the accused. It appears from their evidence that when the members of the force were chasing the accused, they were sitting in Police Jeep, so they personally did not conduct any raid to arrest the accused. However, it is stated by them in course of their evidence that after apprehension, the accused was brought in front of the Police Jeep and the Officer-in-charge of the Police Station seized one firearm and two ammunitions from the possession of the accused.

The petitioner's Advocate submitted that other witnesses namely P.W.4, P.W.5 and P.W.6 are formal witnesses. They did not see the actual incident of arrest of the accused and recovery of firearm and ammunition from the possession of him. P.W.4 is an Arms expert, who opined that the seized firearm was in working condition. The firearm was produced during trial, but the trial court recorded in his Judgment
that the seized firearm was produced in two pieces. The butt of the rifle was not attached to its barrel and trigger. He pointed out that search and seizure was not supported by the independent witness. No Police Officer or Police personnel, who actually apprehended the accused was examined by the prosecution. The firearm was produced in broken condition. There is no explanation as to whether the firearm that was produced before the trial court during trial is the seized firearm, which was recovered from the accused. The prosecution did not come forward with plausible explanation as to whether the firearm was broken in
Police Malkhana or it was seized in broken condition.

It was pointed out by the Advocate for the petitioner that the accused/petitioner examined two independent witnesses during trial. Both the witnesses stated that the accused had some dispute with the local M.L.A. Under the instruction of the local M.L.A., Police arrested him and implicated him in a false case under the Arms Act and the accused never possessed any illegal firearm and ammunition as alleged by the prosecution. 

The petitioner submitted that the prosecution failed to comply with the provision contained in Sub-section 4 of Section 100 of the Cr.P.C. There is nothing on record that before making a search, the Officer or other person about to make the search called upon the independent witnesses and respectable inhabitants of the locality in which the place to be search is situated or any other locality or of any locality if no such inhabitants of the said locality is available or is willing to a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

The Court observed: "I am not in a position to accept such contention made by the learned Advocate for the petitioner relying on Section 100 (4) of the Cr.P.C. Simply for the reason that Section 100 relates to search of a closed place or any building, warehouse etc. In the instant case search was made in open field. According to prosecution some people assembled hearing the hue and cry at the time of apprehension of the accused. Two of them were called and seizure was made in presence of them. Thus, non-compliance of
Section 100 (4) of the Cr.P.C. does not make the search and seizure of firearm illegal."

It pointed out that "the Judgment of this Court in the case of Lakhindra Rai Vrs. The State of Bihar, reported in (2007) 3 PLJR 362 is also not applicable because in the said report a decision, a Coordinate Bench has dealt with provision of Section 50 of the Narcotics Drugs and Psychotropic Substances Act, 1985, where special provisions are laid down under the Special Act as the prerequisite of search in a case under the N.D.P.S. Act. The decision of the Division Bench of this Court in Guddu Rai Vs. The State of Bihar, reported in (2012) 4 PLJR 1064 is also not applicable under the facts and circumstances of this case because in the said reported decision the Police officer failed to get the seized firearm examined by a ballisticate part. Question of examination of a firearm by a ballisticate part arises when the firearm is used for firing a shot to a person. In the instant case there was no such case of firing made out by the prosecution. 

The order records that "In Guddu Rai Vs. The State of Bihar, the Division Bench of this Court relied upon the decision of the Hon’ble Supreme court in Nachhattar Singh & Ors. vs. State of Punjab, reported in AIR 1976 SC 951, where recovery was made form the accused person and it was held by the Apex Court that the recovery ought to have been proved by examining the witnesses, who had witnessed the recovery."

The learned A.P.P. In-charge has supported the prosecution case as well as the decision rendered by the trial court and affirmed by the appellate court in course of his submission. 

The Court underlined that in the criminal revision, "it is not permissible for a revision court to examine and scan the evidence on record adduced by the prosecution and defence until and unless a gross perversity is made out against the petitioner."

The Court assigned the reasons. The trial court observed that PW.1 was did not support the prosecution case, but surprisingly held that he was present at the place of occurrence on the date and time of incident. Even assuming that P.W.-1 was present at the place of occurrence does it prove that he was a seizure witness when he specially submitted that his signature was obtained by the Officer-in-charge of the Police Station on a blank paper. It is important to note that PW.1 was not declared hostile by the prosecution. Therefore, the evidence of PW.1 ought to have been made applicable against the prosecution and it ought to have been held that search and seizure of firearm was not made in present of any independent witness.

The Court observed that "when search and seizure is made on an open filed, it may not be possible for the

Police Officer to find out independent witness. There is no harm if the search and seizure was made in presence of other Police Officers, who took part in the raid. Not a single Police Officer was examined in this case on behalf of the prosecution to support the raid and search and seizure. The Officer-in-charge, who allegedly seized a firearm did not take any signature of any of the Police Officers, who accompanied him. The Chowkidars (PW.-2 and 3) stated on oath that during apprehension of the accused they were sitting inside the Police vehicle.

The Court took note of another important aspect of the matter which is that "the Officer-in-charge did not prepare any label in respect of the seized articles. The seized firearm was not sealed at the spot or even at the Police Station without identification label and official seal of the firearm, how could P.W.-4 state in his report that the firearm, which was recovered from the possession of the accused was placed before him for examination. There is no seal and label with signature of the accused and the witnesses on the firearm and cartridges to prove that those articles were seized from the possession of the accused."  In such a backdrop, the Court's order reads: "I am not in a position to accept the report of the Arms expert in connection with this case." The Court granted  the liberty to the petitioner's advocate to act on the server copy of this Judgment.

Post conviction in NDPS case, Jharkhand residents are in Buxer and Ara jails, High Court to hear their appeal in August

The 84 page long judgement of the trial court by Additional Sessions Judge-VIII, Bhojpur refers to four accused persons namely, 1) Bijendra Kumar Rai (Bihar), Nav Kumar Ojha (Jharkhand), Shankar Yadav  (Jharkhand) and Pritam Lakda (Jharkhand). Notably, all the four accused persons were acquitted of conspiracy charges (Section 29 of  Narcotic Drugs And Psychotropic Substances (NDPS) Act, 1985) by the trial court. But Bijendra Kumar Rai (Bihar), the kingpin was given the benefit of doubt, and acquitted by the trial court, and the remaining three-truck owner, driver and Khalasi, the cleaner were convicted under Sections 20(b) (ii) (C) and 25 of NDPS Act, 1985. The appeal related to conviction over nine quintals of ganja came up for hearing before Patna High Court's division bench of Justices Ashutosh Kumar and Jitendra Kumar on May 9, 2024. 

 

The order records that the Advocates for Shankar Yadav, Pritam Lakra and Nav Kumar Ojha, the Appellants submitted that "the informant is the Investigator of this case which vitiates the entire prosecution case. It has further been submitted that none of the mandatory provisions of the NDPS Act has been complied with." The argument was submitted by the counsel for the second appellant. 

 

The High Court's order reads: "We have also been informed that the wife of another co-convict is mentally ill and, therefore, no appeal has been preferred on his behalf as yet. Apart from this, this Court has been informed that the main accused of this case has been acquitted on a specious plea which is not sustainable in the eyes of law. Though, taking into account the quantity of narcotics recovered from a vehicle of which the appellants are driver and cleaner respectively, we are not inclined to suspend their sentence presently. The prayer is rejected. However, we direct the registry to prepare the paper book urgently and get this case listed for final hearing in the second week of August commencing from 5th of August, 2024. We have said so for the reason that one of the co-convicts has still not preferred an appeal and the appellant No. 2 is a tribal student who is barely in his teens." 

 

The second appellant, a resident of Jharkhand is in Buxer jail. The first appellant is in Ara jail and is represented by Advocate Ravindra Kumar. Advocate Dr. Gopal Krishna  represents the second appellant. He also represents Nav Kumar Ojha, the third convict on humanitarian ground because he is without any legal assistance due to extreme poverty and unsound mental health of his wife. The third convict, a resident of Jharkhand is in Buxer jail as well.

Section 20 of the NDPS Act deals with punishment for contravention in relation to cannabis plants and cannabis. It states that "Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,—(a) cultivates any cannabis plant; or (b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable..."  Section 20 (ii) b of the NDPS Act states that where such contravention relates to sub-clause (b) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees. Section 20 (ii) (C) states that where such contravention relates to sub-clause (b), and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

 

The judgement of the the Additional Sessions Judge-VIII, Bhojpur reveals that Pritam Lakra, the helper of the truck is not covered under the ambit of Section 20 (ii) (b) (C) of the NDPS Act because there is nothing on record to show that he is a cultivator of any cannabis plant or producer, manufacturer, possessor, seller, purchaser, transporter, inter-State importer, inter-State exporter or user of cannabis. It is apparent that the Additional Sessions Judge-VIII, Bhojpur committed an error in convicting him under Section 20 (ii) (b) (C) of the NDPS Act.

As to Section 25 of NDPS Act which deals with the punishment for allowing premises, etc., to be used for commission of an offence. It states that "Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with the punishment provided for that offence."

The High Court will hear the appeal urgently in the second week of August 2024 because "one of the co-convicts has still not preferred an appeal and the appellant No. 2 is a tribal student who is barely in his teens."  

 

Judgment of Additional Sessions Judge, F.T.C-V, Sheikhpura in Section 304(B) case set aside: Justice Sunil Kumar Panwar

In Kaushaliya Devi Vs. State of Bihar, Justice Sunil Kumar Panwar of Patna High Court set aside the judgment of conviction dated December 5, 2006 and order of sentence dated December 7, 2006 passed by Additional Sessions Judge, F.T.C-V, Sheikhpura. The High Court delivered the judgement on May 2, 2024. The benefits of doubt was given to the appellants. The judgement acquitted all the appellants of all the charges. The appellants were on bail all along. They were discharged from the liabilities of the bail bonds.

The appeal was filed against the judgment of conviction and order of sentence passed by Additional Sessions Judge, F.T.C-V, Sheikhpura in connection with Sessions Case No. 404 of 1998 (Trial No. 124/2006), arising out of Barbigha P.S. Case No. 35 of 1997, whereby and whereunder the appellants were found guilty and convicted for the offences punishable under Section 304(B) of the Indian Penal Code (IPC) and they were sentenced to undergo rigorous imprisonment for a period of seven years for the offence punishable under Section 304(B).

Section 304 B deals with "dowry death". It reads: "(1) Where the death of a woman is caused by any burns or bodily injury oroccurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her

husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life." 

The prosecution case as per the F.I.R was that the informant Kapil Mahton gave a written information on March 3, 1997 to the effect that his daughter Sushila Devi (deceased) was married with Binod Mahto about three years before the date of filing the present F.I.R. After marriage, all the F.I.R named accused persons started torturing his daughter (deceased) for demand of dowry. She came many times at her parental house and narrated the same to the parents and other family members but every time, matter was consummated with the interventions of the family members of the deceased. It is further alleged that fort night prior to the complaint, the father-in-law of the deceased came to the informant’s house and informed that his daughter had fled away from her matrimonial house. The informant thereafter started searching his daughter and during search, he came to know that a lady about 25 years old had died consuming poison near bus stand. The informant went to the photo- studio shop and identified the photograph of that lady to be his daughter Sushila Devi. The informant alleged that due to torture, his daughter has committed suicide.

The case was registered against the appellants and others under Sections 498(A), 306/34 of the IPC. After completion of the investigation, charge-sheet was submitted and thereafter cognizance was taken and the case was committed to the Court of Sessions for trial.

During the course of trial, altogether twelve witnesses were examined on behalf of the prosecution.

The appellants' counsel submitted that appellants was innocent and they were falsely implicated in this case since they happens to be the mother-in-law and father-in-law of the deceased. The prosecution claimed demand of dowry and torture for non-fulfillment of the dowry demand but they failed to produce any evidence with regard to any torture or demand of dowry prior to the date of occurrence. The informant claimed that soon after the marriage, his daughter was tortured for non-fulfillment of dowry demand but he had not filed any complaint regarding the torture and demand of dowry before any authority nor any panchayati was held in this regard which suggests that a concocted story was implanted to falsely implicate the appellants in this case.

The Court observed that "most of the prosecution witnesses are either highly interested or hearsay witnesses." It also noted that "the prosecution has also failed to prove that the deceased died within seven years of her marriage as the date of marriage has not been mentioned in the F.I.R."

The Court records that "from perusal of the records and on going through the evidences, it appears that none of the prosecution witnesses have seen the occurrence and most of the witnesses are related to the informant and are highly interested witnesses. The prosecution has not brought on record any proof with regard to the torture and demand of dowry prior to the death of the deceased. The husband of the deceased had also not been made accused. Whatever have been stated by the witnesses in their examinations-in-chief was not contradicted in absence of evidence of Investigating Officer. The right of bringing on record the contradictions in the statement of witnesses made before the Investigating Officer is a very valuable right of the accused and by showing that, the witness has made improvements or has given evidence, which contradicts his earlier statement, the accused is able to satisfy the Court that the witness is not reliable witness." 

The Court observed: "It is also pertinent to mention here that in order to establish the offence under Section 304(B) of the Indian Penal Code, the prosecution is obliged to prove that death of a woman is caused by burns or bodily injury or occurs otherwise than normal circumstances and such death occurs within seven years of her marriage and if it is shown that soon before the death she was subjected to cruelty or harassment by her husband or any relative of her husband, such harassment and cruelty must be in connection with any demand of dowry." 

It further observed" "If the prosecution proves the aforesaid circumstances then the presumption under Section 113-B of the Evidence Act will operate. Such presumption is rebuttable and the onus to rebut shifts on the accused persons. It is evident that there is nothing on record to show that soon before the death, there was any demand or torture by the appellants which is a necessary ingredient to bring the accused under Section 304-B of the Indian Penal Code. Section 304-B of the Indian Penal Code clearly says that in case of abnormal death, if it is shown that soon before the death, she was subjected to cruelty or harassment by her husband or any relative of her husband in connection with demand of dowry, such death can be called dowry death. It is evident from the discussions made that necessary ingredient has not been established by the prosecution to bring the case within the ambit of Section 304-B of the Indian Penal Code." 

The Court pointed out that "If the prosecution fails to establish the aforesaid ingredient then presumption under Section 113-B of the Evidence Act does not apply and in such case the burden does not shift to the accused persons to rebut the presumption under the law. Since the ingredient of Section 304-B is absent on the record, in my view, the appellants cannot be convicted under Section 304-B of the Indian Penal Code."

The judgement concluded that "it is evident that the circumstantial evidence which has been brought on record, as discussed above, is not sufficient to come to a conclusion that the appellants committed dowry death due to non-fulfillment of dowry demand. It is well established rule of law that in case of circumstantial evidence, chain must be complete to establish the guilt of the accused persons. Hence, the prosecution has failed to establish its case beyond the shadow of all reasonable doubts and the appellants are entitled to get the benefits of doubt."

Judgement of Adhoc Additional Sessions Judge, F.T.C.-II, Bhojpur in 1987 case of dacoity set aside: Justice Rajesh Kumar Verma

In Banshidhar Sing Vs. State of Bihar, Justice Rajesh Kumar Verma of Patna High Court set aside the judgement of Adhoc Additional Sessions Judge, F.T.C.-II, Bhojpur.  The appellant was  acquitted from all the charges levelled against him. The Court's direction reads: "Let the appellant be set free at once, if he is not warranted in any other case." In its judgement dated May 6, 2024, the appeal filed by the appellant was allowed. 

It was pending in the High Court since January 2013. It was one of the 26386 are 10 to 20 years old cases pending in the Court. Notably, a division bench of the Court had acquitted 8 convicted persons by judgment dated May 6, 1993 in Jagnarayan Singh and Others Vs. State of Bihar, a related case. The genesis of the both cases was the same. The judgement in the case was delivered exactly 31 years after the acquittal of 8 persons.  In Patna High Court, a total of 3058 cases are over 30 years old,   

The appellant was convicted under Section 396 of the Indian Penal Code (IPC) and was sentenced to undergo rigorous imprisonment for ten years and a fine of Rs.5,000/- by the sentence dated December 18, 2012  trial Court pursuant to the judgment dated December 17, 2012. The prosecution case was that an armed dacoity was committed in the house of the informant situated in village Basantpur, Ara Muffasil, Bhojpur on November 22, 1987 in night. A number of dacoits armed with big Double Barrel Guns, Gun and Small country Pistols broke open the door, entered in the house and looted properties worth Rs. 40,000/. Visheshwar Rai, informant's grandfather told him that his brother Bhola Rai fell down due to bullet shot. Bhola told that “Kameshwar Singh shot fired him". Bhola was shot dead.

Section 396 of IPC deals with "Dacoity with murder" It reads: "If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or [imprisonment for life], or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."

The genesis of case lies in the FIR bearing Ara Muffasil P.S.Case No.125 of 1987 which was registered on November 23, 1987 based on the fardbeyan of informant, namely, Ram Dular Yadav against 9 named accused persons including the appellant. The prosecution after completion of investigation, chargesheet against eight accused persons (except the appellant) was submitted on February 23, 1988 which stated that the appellant was as absconder and the cognizance was taken for the offence punishable under Section 396 of Indian Penal Code. The case was committed for split trial by separating the case of this appellant, Yogendra Singh and other suspects against whom the investigation was still going on and accordingly S.Tr.No.436 of 1988 was registered. The 8 accused persons were convicted by the judgment dated March 19, 1990 passed by the 7th A.D.J., Ara and each accused were sentenced to undergo rigorous imprisonment for life. The convicted eight accused persons preferred Cr.Appeal before the Patna High Court vide Cr. Appeal No. 179 of 1990 (D.B.) (Jagnarayan Singh and Others Vs. State of Bihar). The Division Bench of the Court after hearing the parties had acquitted all the 8 convicted persons by allowing the appeal vide order/judgment dated May 6, 1993.

The Investigating Officer filed a petition before the Court concerned to the separate trial on February 23, 1988 for the permission to continue further investigation and the same was accorded by the C.J.M., Ara vide order on the same day. The supplementary Charge-sheet vide Charge-sheet dated November 15, 1989 was submitted under Section 396 of I.P.C. against the appellant. The case was committed for sessions trial. The appellant pleaded his innocence in respect to contents of the charge as framed. The trial of the appellant commenced. The prosecution examined two witnesses. The evidence of the prosecution had been closed on July 20, 2012. The statement of appellant accused was recorded on July 24, 2012 under Section 313. The appellant stated about his innocence and totally denied the allegation regarding alleged occurrence and the appellant adduced the judgment passed by the Division Bench of this Court in Cr.Appeal No. 179 of 1990 arising out from Sessions Trial No. 436/1988.

The appellant's counsel submitted that the defence raised the contention that both examined witnesses are full brother and also interested witnesses, the other witnesses mentioned in the Fardbeyan are not examined, an injured person namely Bhushan Yadav also has not been examined, which casts serious doubt on the prosecution version, Investigating Officer and Doctor of the case are not examined, in absence of medical report, a case U/S 396 of IPC cannot be proved as the cause of death of Bhola Rai has not been proved , the document of the case of Session Trial No. 436/1988 cannot be admissible permissible as evidence in this case, and in Cr. Appeal No. 179/1990. The High Court acquitted the other accused person of this case and also observed that the Fardbeyan is ante-dated, and the identification of the accused person as participants in the alleged dacoity by the eye witnesses who are all of the same family does not inspire confidence, and the entire prosecution came has no leg to stand but the learned trial court gave weightage of the plea as advanced by the prosecution in response to the aforesaid contention of the defence. 

The appellant's counsel submitted that both the witnesses are belonging to same family. The explanation of injury caused to Bhola Rai, Bhushan Yadav and son-in-law of Bhola could not be substantiated by the evidence of the prosecution witnesses and in the facts and circumstances, the investigating officer of the case who had taken part in the investigation and submitted the charge sheets was necessitated for the purpose of corroboration the location and situation of the house of the informant but the Investigating Officer was not examined in the present case and further corroboration in the present case with respect to postmortem of alleged deceased is required, which test amounts the examination of doctor who conducted the postmortem for proper explanation of the injury but the Doctor was not examined in the present case and in view of the aforesaid, the inquest seizure list and postmortem report have not been proved and it would cause prejudice to the appellant.

The counsel for the appellant relied upon the judgment of the Supreme Court in the case of Munna Lal Vs. State of Uttar Pradesh, reported in 2023 SCC OnLine SC 80. The paragraph Nos.-28,39 and 40 of the said judgment reads: 

“28. Before embarking on the exercise of deciding the fate of these appellants, it would be apt to take note of certain principles relevant for a decision on these two appeals. Needless to observe, such principles have evolved over the years and crystallized into ‘settled principles of law’. These are:
(a). Section 134 of Indian Evidence Act, 1872, enshrines the well-recognized maxim that evidence
has to be weighed and not counted. In other words, it is the quality of evidence that matters and not the
quantity. As a sequitur, even in a case of murder, it is not necessary to insist upon a plurality of witnesses
and the oral evidence of a single witness, if found to be reliable and trustworthy, could lead to a
conviction.
(b). Generally speaking, oral testimony may be classified into three categories, viz.:
 (i) Wholly reliable;  (ii) Wholly unreliable; (iii) Neither wholly reliable nor
wholly unreliable. 

The first two category of cases may not pose serious difficulty for the court in arriving at its conclusion(s).
However, in the third category of cases, the court has to be circumspect and look for corroboration of any material particulars by reliable testimony, direct or circumstantial, as a requirement of the rule of prudence.
(c). A defective investigation is not always fatal to the prosecution where ocular testimony is found credible and cogent. While in such a case the court has to be circumspect in evaluating the evidence, a faulty investigation cannot in all cases be a determinative factor to throw out a credible prosecution version.
(d). Non-examination of the Investigating Officer must result in prejudice to the accused; if no prejudice is caused, mere non-examination would not render the prosecution case fatal.

(e). Discrepancies do creep in, when a witness deposes in a natural manner after lapse of some time, and if such discrepancies are comparatively of a minor nature and do not go to the root of the prosecution story, then the same may not be given undue importance.”

The counsel for the appellant pointed out that the genesis of the Cr. Appeal No. 179/1990 which arose from the S.Tr.No. 436 of 1988 (arising out of Ara Muffasil P.S.Case No.125 of 1987)  was the fardbeyan as recorded and upon the same FIR was registered. The genesis of the S.Tr.No.22 of 1990 was the same as the Fardbeyan upon which the same FIR has been registered and the judgment passed in the trial is under challenge in the present Cr. Appeal No. 38/2013. The Division Bench of the High Court held that the said fardbeyan is ante dated and further impeached the credibility of the identification of the named accused in the FIR which also includes this appellant. 

The Court recorded that "the judgment passed in Cr. Appeal No. 179 of 1990 would operate as estoppel in regard all finding which are essential to sustain the judgment and both prosecution witnesses are not trustworthy witnesses and so the prosecution has failed to prove the case beyond reasonable doubt."

Justice Vipul Pancholi led bench sets aside judgement of Additional Sessions Judge, Rosera (Samastipur) in murder case

In Kanchan Kumari v. State of Bihar, the bench of Justices Vipul M. Pancholi and Chandra Shekhar Jha set aside the judgement of Additional Sessions Judge, Rosera (Samastipur) which convicted the appellants Ravindra Kumar @ Lalo and Kanchan Kumari for the offences punishable under Sections 302/34 and 302/120B of the Indian Penal Code (IPC) and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- each and in default of payment of fine, the appellants Ravindra Kumar @ Lalo and Kanchan Kumari have to undergo RI for four months. The appellants were also convicted for the offences punishable under Sections 201/34 of the IPC and sentenced to undergo RI for four years and to pay a fine of Rs.2000/- each and in default of payment of fine, the appellants have to undergo RI for one month. All the sentences were to run concurrently. The judgement of the division bench of the High Court was authored by Justice Pancholi was delivered on April 19, 2024.

The informant Binod Kumar gave a written complaint wherein Manoj Kumar (younger brother of the informant) and Mukesh Kumar (brother-in-law of Manoj Kumar) had been living at his house since long. On September 17, 2016, Mukesh Kumar (deceased) received a phone call and went outside. As a dance programme was organized on the occasion of Vishwakarma Puja at Basauna Chowk, the informant did not pay attention as to where he had gone. The informant got information through phone that dead body of Mukesh Kumar is lying in the water beside the road ahead of Utkramit Madhya Vidyalaya, Pakahi. The dead body was brought to Shahpur Chowk.

The written complaint given by the informant had given the names of four accused and also pointed out the motive for committing murder of deceased Mukesh Kumar. 

The judgement of the Patna High Court recorded that it was surprising that after preliminary investigation the investigating agency exonerated the said four persons who were named in the FIR and only on the basis of secret information given by the informer, all the present appellants have been implicated. 

Admittedly, there was no eye witness to the occurrence in question. The case of the prosecution rested on circumstantial evidence. 

Notably, none of the prosecution witnesses deposed against the appellants-accused except the Investigating Officer. None of the prosecution witnesses had seen the appellants lastly in company with the deceased. Even the weapon, i.e., the knife, which was recovered from the house of one of the appellants, was not sent for necessary analysis to FSL. The said aspect is admitted by the Investigating Officer.

The Trial Court had convicted the appellants only relying upon the deposition given by the Investigating Officer. The prosecution failed to complete the chain of circumstance from which it can be established that the appellants have killed the deceased despite which the Trial Court has passed the impugned judgment of conviction and order of sentence. 

The case of the prosecution was that as the deceased Mukesh Kumar was having love affair with one of the appellant Kanchan Kumari, with the help of the other two co-accused the deceased Mukesh Kumar has been killed. However, the prosecution has failed to prove by leading cogent evidence before the Court that Kanchan Kumari, the  appellant was having relation with the deceased. The said aspect has been admitted by the Investigating Officer.

The High Court re-appreciated the entire evidence led by the prosecution before the Trial Court. It would emerge from the record that there is no eye witness to the occurrence in question and case of the prosecution rests on circumstantial evidence. It noted that as per the deposition given by the Investigating Officer, on the basis of secret information given by the informer of the police, it was revealed that the deceased Mukesh Kumar was having love affair with Kanchan Kumari, one of the appellants and all the appellants in connivance with each other killed the deceased. 

The prosecution failed to examine the witness with a view to prove that deceased Mukesh Kumar was
having love affair with Kanchan Kumari, one of the appellants. It emerges that the prosecution failed to prove the motive on the part of the accused to commit the alleged offences. 

Admittedly it is a case of circumstantial evidence. It is well settled that in case of circumstantial evidence, it is the duty of the prosecution to complete the chain of circumstance from which it can be established before the Court that the appellants/accused have committed the alleged offences. 

The he doctor who had conducted post-mortem on the dead body of the deceased found seven injuries out of which six are sharp cut wound. He opined that death was due to hemorrhage and shock caused by above mentioned injuries. He stated that if the knife blow is given, there would be a penetrating wound and he did not find any penetrating wound on the dead body of the deceased. 

The Court observed: "though the Investigating Officer collected the CDR of the concerned mobile phones and produced before the Court, the certification under Section 65B of Evidence Act was not produced before the Court." 

It also observed that "in the case of circumstantial evidence, motive assumes importance. In the present case, as discussed hereinabove, the prosecution has failed to prove the motive on the part of the appellants to kill the deceased by leading cogent evidence before the Trial Court. The medical evidence also does not support the case of the prosecution. Thus, from the aforesaid evidence, it can be said that only on the basis of the confessional statement of the accused and the CDR of the mobile phones, the appellants have been convicted by the Trial Court."

The judgement concluded: "we are of the view that the prosecution has failed to prove the case against the appellants beyond reasonable doubt despite which the Trial Court has passed the impugned judgment of conviction and order of sentence against the appellants. Hence, the same is required to be quashed and set aside." 

The direction of the Court reads: Since appellants, namely, Ravindra Singh @Ravindra Kumar @ Lalo and Kanchan Kumari in Criminal Appeal (DB) No.98 of 2019 and Criminal Appeal (DB) No.291 of 2019 respectively are in jail, they are directed to be released from custody forthwith, if their presence is not required in any other case." It also directed that Bipin Prasad Singh @ Bipin Singh, the appellant, in Criminal Appeal (DB) No.1480 of 2018 who is on bail, is discharged from the liabilities of his bail bonds.

 

High Court sets aside judgement of Additional Sessions Judge-VI-cum-Special Judge, POCSO Act, Nalanda in "a case of a gun-shot marriage"

Patna High Court's bench of Justices Ashutosh Kumar and Jitendra Kumar set aside the judgment and order of conviction by Additional Sessions Judge-VI-cum-Special Judge, POCSO Act, Nalanda and acquitted Prabhas Singh, the appellant of the charges leveled against him. 

The victim had lodged the written report addressed to the Officer-in-Charge of Mahila Police Station, Biharsharif on October 24, 2019, which led to the registration of Mahila P.S. Case No. 175 of 2019 on the same day under Sections 376, 313, 506 and 34 of the I.P.C. and Section 6 of the POCSO Act, 2012. 

Section 376 of IPC provides punishment for rape. The offender is "punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine." 

Section 313 deals with punishment for the offence of "causing miscarriage without woman's consent" . The offender is punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." It is non-bailable and triable by a Court of Session.

Section 506 deals with the punishment for criminal intimidation. The offender is punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 

Section 34 deals with acts done by several persons in furtherance of common intention.

Section 6 of POCSO Act provides" punishment for aggravated penetrative sexual assault". The offencer is punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death. The fine imposed is required to be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.

The Court has recorded that "no effort was made by the Investigator to know about the age of the victim, especially at the time of the first encounter, when she had become pregnant." The age came to light from the the matriculation certificate of the victim, which showed her date of birth to be April 1, 2003. It emerged that the victim was a 16 year old minor when she had met the appellant for the first time and had continued with her relationship for a very long time during her minority. 

The marriage was performed after the offence of rape was lodged. The Court observed: "Prima facie, it appears to be a case of a gun-shot marriage and, thereafter, that marriage having failed for some reason or the other." The Court inferred that "the victim having voluntarily accepted the matrimonial relationship with the appellant and staying in her matrimonial home for three years, which fact was clearly admitted by her in her deposition before the Trial Court and there being no investigation about the minority of the victim, we do not find it to be a case of rape." It pointed out that "there is no proof of the fact that the relationship was consummated when the victim was only a minor and had not crossed over the date of majority." The Court concluded, "we find the accusation against the appellant to be unworthy of complete reliance. We, therefore, cannot put our imprimatur to the opinion arrived at by the Trial Court."

The Court observed that "the victim had a field day when she approbated and reprobated, depending upon her equation with the appellant and his family members." It has recorded that "the victim has herself stated under Section 164 Cr.P.C. as also before the Trial Court that she got married to the appellant,  it was an important fact to have been disclosed before the Investigator as also before the Trial Court. The very factum of marriage and the victim staying in her matrimonial home for more than two years would have made the allegations absolutely false."

The Court has noted that the victim "has also admitted that she became pregnant because of the association with the appellant, but when the appellant refused to marry her, she lodged a case. After the case was lodged, the appellant married her and she was happily residing in her matrimonial home."

The judgement notes that "all the while that she made statement before the Magistrate under Section 164 Cr.P.C. and in her deposition before the Trial Court, she had referred to the appellant as having plighted his troth to her. There was obviously love relationship between the victim and the appellant."

The Court's direction reads: "the appellant/Prabhas Singh is in jail, he is directed to be released from jail forthwith, if his detention is not required in any other case."

Notably, there is a glaring proofing error in the opening sentence of the judgement. It reads: "The sole appellant/Prabhas Singh has been convicted for the offence under Section 376 (3) of the Protection of Children from Sexual Offences Act, 2012." Instead of referring to Section 376 (3) of the IPC, it inadvertently refers to POCSO Act. The fact is that there are only 46 Sections in the POCSO Act.  Section 376 (3) of IPC which was inserted in 2018 states that "Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this sub-section shall be paid to the victim."  

Chief Justice led bench dismisses PIL seeking implementation of Street Vendor (Protection of Livelihood and Regulation of Street Vending) Act

On May 1, 2024, the division bench of Chief Justice K. Vinod Chandran and Justice Harish Kumar dismissed a writ petition praying for implementation the Street Vendor (Protection of Livelihood and Regulation of Street Vending) Act, 2014 as "unnecessary petition". It was filed filed by Qamre Alam and Md. Qayum Uddin.

The judgement in Qamre Alam v. State of Bihar drew on the counter affidavit which provided details of the steps being taken by the Patna Municipal Corporation for implementation of the Street Vending Act. 

The judgement recalled an earlier petition filed by the very same writ petitioners numbered as CWJC No. 17256 of 2019 (Patna Junction Thela Footpath Dukandar Sangh v. State of Bihar) which was disposed of, granting liberty to the petitioners to assist the Court in another writ petition pending on the same subject matter numbered as CWJC No. 15475 of 2016 (Vikash Chandra Guddu Baba Vs. the State of Bihar). The perusal of the judgement in  the former case which provides the names of 119 petitioners does not show the name of Qamre Alam and Md. Qayum Uddin.  

The judgement of Chief Justice Sanjay Karol and Justice S. Kumar bench records that "Patna Junction Street Vendors Association themselves have filed CWJC No. 17976 of 2019, for the same subject matter. There is hence no requirement for a public spirited person to agitate the cause." The fact is that this case was disposed of without expressing "any opinion on the merits of the matter" on November 23, 2020.

The petitioners had prayed for the following relief(s):-
(i) For issuance of writ of mandamus commanding upon the respondents to implement the prevision of street vendors (Protection of livelihood and Regulation of Street Vending Act 2014 and after survey the town vending committee shall ensure that all existing street Vendors identified in the survey are accommodated in the Vending Zone (which is not declared till date) in accordance with the plan for Street Vending and the holding capacity of the Vending Zone.
(ii) For issuance of writ of mandamus commanding upon the respondents not to disturb/remove the from existing place of business Street Vendors from existing place of business in the name of Anti encroachment Drives as they are earning their livelihood for themselves and also for their family members. Since last several years as despite several insurance given by the respondents, no Street Vending Zone has been specific and they have been removed one place to another place in the name of the Anti encroachment drive.
(iii) For issuance of writ of Mandamus to Specific the Vending Zone for the Street Vendors.
(iv) For issuance of writ of mandamus commanding upon the respondents to ensure that all the Street Vendors who are earning their livelihood from place situated near the Patna Junction adjacent to Veena Picture Hall, Patna are accommodated in the Vending Zone after specifying the place of Vending Zone.
(v) For the direction to the respondents not to disturb the Street Venders who are earning their livelihood from the place at Patna Junction near Veena Picture Hall, Patna prior to fixing the place as Vendor Zone and accommodating them in the said Vendor Zone.
(vi) For the other reliefs in facts & circumstances of the case.”

The petition was disposed of in the following terms:-
(a) Petitioners’ representation, which is pending before the appropriate authority, shall be considered and decided in accordance with law within a period of four weeks from today;
(b) Liberty is reserved to the petitioner to take recourse to such remedy, pursuant to the decision taken on such representation, including approaching this Court afresh on same and subsequent cause of action, if so required and desired;
(c) We have not expressed any opinion on the merits of the matter. 

With regard to the latter case CWJC No.15475 of 2016 (Vikash Chandra Guddu Baba Vs. the State of Bihar), the judgement of the bench of Chief Justice Vinod Chandran and Justice Partha Sarthy dated September 22, 2023 makes it crystal clear that the writ petition was closed with certain observations. The observation reads: "The writ petition has been pending since 2016 and it is submitted by the petitioner in person that on the basis of orders passed by this court many of the encroachments have been removed." It recorded that Prabhat Kumar Verma, the AAG-3 informed the Court that "the State and the District Administration are relentlessly pursuing the matter and ensuring that no difficulty is caused to the public. We hope that the State does not let up on the removal of such encroachments wherever it is found and also ensure that there is no further occupation of public place by trespassers."

Notably, on October 4, 2017, the bench of Chief Justice Rajendra Menon and Anil Kumar Upadhyay had passed an order in Vikash Chandra Guddu Baba v. State of Bihar wherein it recorded that "the Patna Municipal Corporation in C.W.J.C. No. 2442 of 2017 has made statement on oath before this Court that they are proposing to create vending zones in the entire city of Patna and thereafter remove the encroachers to the said zone, list the matter for analogous hearing along with C.W.J.C. No. 2442 of 2017 and C.W.J.C. No. 3923 of 2016. Meanwhile, further action taken should be indicated to this Court and a report filed." C.W.J.C. No. 2442 of 2017 refers to Krishna Kumar Singh v. State of Bihar which was dismissed on April 21, 2023. The dismissal order reads:"Though it is submitted that Advocate Satya Prakash has expired, Vakalanama is also seen to be filed by Advocate Mr. Sachin Kumar. Consistently, none appears for the petitioner. As such, writ petition stands dismissed for default" after listing/hearing it on 30 occasions.  

The latter case C.W.J.C. No. 3923 of 2016 refers to Zila Footpath Dukandar Sangh, Muzaffarpur v. State of Bihar, which was disposed by the bench of Chief Justice Sanjay Karol and Justices Dinesh Kumar Singh on November 15, 2019. The recorded that Yogesh Chandra Verma, senior counsel stated that "out of 142, only 58 vendors have been issued identity cards and the rights of the remaining vendors remain denied." 

The Court's judgement reads: "Having considered the material placed on record in its entirety, we are of the considered view that interest of justice will be best met if each one of the remaining vendors were to approach the authority for redressal of their surviving grievances, including non-implementation or incomplete implementation of the provision of Sections-3 and 4 of The Street Vendors (Protection of Livelihood And Regulation Of Street Vending) Act, 2014." It observed: "We are sure that on receipt of such request, cases of each one of the remaining vendors shall be considered by the appropriate authority in accordance with law expeditiously and preferably within a period of 3 months from today. Mr. Prasoon Sinha, appearing for the respondent Municipal Corporation, ensures of the same. In view of the aforesaid directions, we dispose of the present petition reserving liberty to the remaining vendors to seek appropriate remedies in accordance with law, including approaching this Court by way of separate petitions" after listing/hearing the case on 33 occasions.

 

 

High Court sets aside judgement of Special Judge, POCSO Act, Samastipur

In Pappu Sharma v. State of Bihar, the direction of the division bench of Justices Ashutosh Kumar and Khatim Reza reads: "In face of the Doctors’ evidence, there could be a little doubt that the victim was attempted to be violated but finding the accusation against the appellant to be absolutely without any basis, we are constrained to set aside the judgment and order of conviction. The appellant is acquitted of the charge. Since the appellant is in jail, he is directed to be released forthwith unless his detention is required in connection with any other case". In its order, Patna High Court's bench heard the appellant who was convicted for the offence under Section 376 IPC and Section 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 vide judgment dated July 13, 2017 passed by the Special Judge, POCSO Act, Samastipur in Dalsingsarai. 

By order dated July 18, 2017, the appellant, a resident of Rasidpur, PBachhwara, Begusarai was sentenced to undergo imprisonment for life along with a fine of Rs. 1,00,000/- and in default of payment of fine, to further suffer rigorous imprisonment (R.I.) for one year for the offence under Section 6 of the POCSO Act. No separate sentence was awarded for the offence under Section 376 IPC. 

The judgement records that an eight year old girl is alleged to have been sexually violated by the appellant. The mother of the victim (PW4) had lodged the F.I.R. on 14.06.2015 alleging that on June 13, 2015, there was a religious congregation in front of her house under a peepal tree, where many persons of the village had assembled. She along with her daughter (victim) and a toddler slept on a cot by around 8.00 P.M. At about 12 ‘O’ Clock in the night, when she got up from her sleep, she did not find her daughter (victim) around. She came out in search of her daughter but to no avail. Shortly thereafter, she found her daughter weeping in the garden. When she was asked, she disclosed before PW4 that a musician of the band party had brought her at that place and had sexually assaulted her. The accused person had run away. PW4 lifted her daughter and brought her home and inquired about the musician in the band party. She came to know that one Pappu Sharma/appellant of Begusarai was member of the band party. The appellant was confronted with the afore-noted allegation but he denied and ran away. The local Mukhiya was informed about the occurrence, who in turn informed the police. The victim was brought to Dalsingsarai hospital and after her treatment, PW4 lodged the F.I.R. with the Mahila Police in Samastipur.

Since the appellant was the only person about whom there was a doubt that he had committed the offence, he was chargesheeted and put on trial. The Trial Court after having examined nine witnesses on behalf of the prosecution convicted and sentenced the appellant.

The High Court observed that from the deposition of PW4 before the Trial Court, it appears that it was only on her guesswork that she had raised allegation against the appellant. In her examination in chief, she stated that somebody had taken her daughter and had sexually violated her. On being asked, the victim had told her that one boy had taken her to the garden and had physically violated her. During cross-examination, she admitted that her daughter only said that one musician had taken her to the garden. It was found out that the musician playing in the band party was Pappu Sharma (the appellant). His name was not taken by the victim. The mother of the victim did not even recognize the appellant.

The victim was examined. After testing her competence to depose through voir dire, the Trial Court recorded her statement. Voir dire test is a test to determine the maturity and capability of a minor to be a witness. In this test, a judge to test the mental capacity of a minor, asks him/her questions not related to the circumstances of the case. Although it is not a rule but evidence by a minor ought to be accompanied by corroborating evidence as given section 142 of the Indian Evidence Act, 1872. The Court is cautious when there is a need to rely solely on a child’s testimony. The victim completely denied that the appellant who was standing in the dock, had committed any wrong act with her. She recognized the appellant but in no uncertain terms stated that he was not the person, who had caused trouble to her. The other witnesses, did not support the prosecution case and have been declared hostile. The grandfather of the victim denied the factum of rape of his granddaughter. 

The Court's order records that the victim was examined by Dr. Pushpa Rani and Dr. Hemant Kumar Singh, who found her to be between 7 to 8 years of age and there being strong evidence of sexual assault on her. Thus, there could be a possibility of the victim having been sexually violated but the accusation against the appellant was based on guess-work and some misgivings about his being the musician in the band party which was hired in the religious congregation. Had it not been the case, there would have been specific accusation against the appellant.

The High Court's bench led by Justice Ashutosh Kumar concluded that "it appears that it was only on the guess-work of the informant that the appellant was put on trial.

 

 

 

Justice Ashutosh Kumar led bench sets aside judgement of Additional District & Sessions Judge-IV, Siwan, aquits four of murder charges, directs release of convicts

In Ram Awadh Kishore Prasad v. State of Bihar and Dashrath Sahni v. State f Bihar, Patna High Court's bench of Justices Ashutosh Kumar and Khatim Reza observed, "We are amazed as to how the Trial Court found evidence good enough to convict all the appellants for the offence under Section 302 of the IPC. In the absence of any evidence worth its name, the prosecution has miserably failed to prove the case against all the appellants. The conviction of the appellants are thus set aside. The appellants are acquitted of the charges." The other appellants are Bechu Sahni and Kanhaiya Sahni.

The Court's judgement reads: "Appellant/Ram Awadh Kishore Prasad [in Cr. Appeal (DB) No. 1031 of 2017] is in jail. He is directed to be released from jail forthwith, if not required or detained in any other case. Appellants/Dashrath Sahni, Bechu Sahni and Kanhaiya Sahni [in Cr. Appeal (DB) No. 858 of 2017] are on bail. Their liabilities under the bail bonds are discharged....Let a copy of this judgment be dispatched to the Superintendent of the concerned Jail forthwith for compliance and record."

The appellants were convicted under Sections 341, 323, 504 and 302/34 of the Indian Penal Code (IPC) vide judgment dated June 13, 2017 passed by the Additional District & Sessions Judge-IV, Siwan in Sessions Trial No. 393 of 2014 (G.R. No. 2700 of 2012), arose out of Darauli P.S. Case No. 67 of 2012. By order dated June 16, 2017, they were sentenced to undergo rigorous imprisonment (R.I.)) for one month under Section 341 of the IPC; R.I. for one year, to pay a fine of Rs. 1,000/- each and in default of payment of fine, to further suffer R.I. for three months under Section 323 of the IPC; R.I. for one year, to pay a fine of Rs. 1,000/- each and in default of payment of fine, to further suffer R.I. for three months under Section 504 of the IPC and R.I. for life, to pay a fine of Rs. 5,000/- each and in default of payment of fine, to further suffer R.I. for six months under Section 302 of the IPC. The sentences were ordered to run concurrently. 

It all began with the killing of one Bigan Bind and the injury of his son and nephew, viz., Kush Kumar Bin and Dhanu Bin in the occurrence. The accusation against appellant/Ram Awadh Kishore Prasad (Cr. Appeal (DB) No. 1031 of 2017) was of assaulting the deceased on his head by means of a rami (iron rod). Kush Kumar Bin and Dhanu Bin are said to have been assaulted by appellants/Dashrath Sahni, Bechu Sahni and Kanhaiya Sahni. The deceased died after five days of the occurrence. 

The FIR was lodged by Kush Kumar Bind (as P.W. 9) who is the son of the deceased. He had alleged in his written report dated 25.07.2012 that a dispute had erupted between appellant/Ram Awadh Kishore Prasad and the deceased with respect to fixing of pegs in the water body for fishing. After a brief squabble, appellant/Ram Awadh Kishore Prasad gave a rami blow on the head of the deceased. He and Dhanu Bin were held back by appellants/ Dashrath Sahni, Bechu Sahni and Kanhaiya Sahni and were also assaulted by them. As a result of assault on the deceased, he received injuries on his head and fell down. The deceased was thereafter assaulted by all the appellants. In the meantime, many persons of the village arrived and seeing them, the appellants fled towards Darauli.

At the Trial, Kush Kumar Bind, the informant made a somersault and stated in his cross-examination that somebody else had drafted the written report and he was not aware of the contents of it. So far as the assault is concerned, he has supported the prosecution case to the extent of there being a dispute between the deceased and appellant/Ram Awadh Kishore Prasad with respect to fishing rights. The assault made on the deceased made him unconscious. He was taken to Darauli Hospital for treatment and from there, he was referred to Siwan and later to Patna, where he died. The death took place on July 31, 2012.

With respect to the enmity between the parties, Kush Kumar Bind admitted that appellant/Ram Awadh Kishore Prasad was the Mukhiya, whereas the deceased was a candidate for the post of secretary of the Fishing Cooperative Society. His candidature was being opposed by appellant/Ram Awadh Kishore Prasad. He has denied the suggestion that one Nandu Sahni had opposed appellant/Ram Awadh Kishore Prasad in the election for Mukhiya, in which election, the deceased was from the side of Nandu Sahni and that only on the asking of Nandu Sahni, the appellants have been made accused in this case. 

Dhanu Bind (as P.W. 6), who is the nephew of the deceased, was examined as P.W. 6. The sequence of events as narrated by him is different from the prosecution version. He stated before the Trial Court that he is an expert at fishing. For the dispute over fixing of pegs in the pond for the purposes of demarcating the area in which fishing could be done, a dispute had taken place when the appellants had started assaulting him. The deceased and P.W. 9 had come to his rescue, when the deceased fell down. Nobody had spoken about the occurrence to anyone. At the time of occurrence, only three persons, viz., the deceased, P.W. 7 and him were present. This is in stark contrast to the deposition of the informant (P.W. 9) who has claimed that many persons of the village had arrived immediately after the assault. He has also spoken about the association of the deceased with Nandu Sahni who had contested the election of Mukhiya and had lost to appellant/Ram Awadh Kishore Prasad.

The High Court observed, "It is very surprising that even though the deceased died in hospital and the post-mortem examination was conducted on his dead body, but neither the post-mortem report has been brought on record nor the doctor who had conducted the post-mortem examination has been brought to the witness-stand. The reasons for it remain completely unknown. The Trial Court has completely overlooked this fact and has discussed about the injury on head and one of the legs of the deceased."

The order notes that "The absence of post-mortem report and the evidence of the Doctor who conducted the post-mortem examination, give a death blow to the prosecution case. We have also found that independent witnesses were unanimous in stating that the deceased died because of fall on a boulder. That apart, there is quite consistency in the deposition of the witnesses regarding the case having been filed at the instance of Nandu Sahni, who had his own axe to grind against appellant/Ram Awadh Kishore Prasad. Nandu Sahni had lost in the elections to the post of Mukhia to appellant/Ram Awadh Kishore Prasad. This postulate appears to be correct for the reason that even the informant had not written the FIR which formed the basis of prosecution. Someone else had done it and he had signed it."

No Confidence Motion under Bihar Panchayat Raj Act must be considered: Patna High Court

In Munni Khatun v. State of Bihar and 22 others, Patna High Court's division bench of Chief Justice K. Vinod Chandran and Justice Harish Kumar endorsed the submission of  Y. C. Verma, the senior counsel of the appellant, and directed that No Confidence Motion be considered immediately under Section 44 (3) of the Bihar Panchayat Raj Act, 2006.  

The final paragraphs of the judgement reads: "it is imperative that the No Confidence Motion be considered immediately. The No Confidence Motion will be considered on 26.04.2024 at 11:00 AM in the Panchayat Bhawan, in the presence of the Executive Officer....Whatever legal consequences follow, on the decision taken at the meeting will have to be scrupulously complied with." The judgement authored by the Chief Justice was delivered on April 20, 2024.  

The writ petitions filed by the Pramukh and Up-Pramukh from Fulwaria, Gopalganj against the No Confidence Motion being carried on January 12, 2024 were rejected by Justice Purnendu Singh, the Single Judge of the High Court due to undue delay of more than three months. It was also found that there was already an election scheduled on February 7, 2024, which was stayed. After dismissal of the writ petition there was an election scheduled on April 22, 2024. The petitions were filed by Ranjan Kumari Tiwari and Munni Khatun. Justice Singh had recorded that "No reason has been assigned for delay in approaching this Court." He had concluded that "The writ petitions deserve to be dismissed for having approached this Court after delay of nearly three months after the requisition dated 30.12.2023, was communicated to the petitioners and also in view of the fact that elections for the post of Pramukh and Up-Pramukh have been notified."

The division bench heard senior counsel for the private respondents and counsels for the State Election Commission and the State besides Verma, the senior counsel. 

The Court drew on Section 44 (3) of the Bihar Panchayat Raj Act which specifies that the requisition for a special meeting to consider the no confidence motion shall be presented to the Pramukh in writing with a copy to the Executive Officer of the Panchayat Samiti, by not less than one third of the total number of members elected directly from the territorial constituencies. The provision then provides that the Executive Officer should immediately bring the requisition to the notice of the Pramukh and the Pramukh should convene such meeting on a date falling within 15 days of such requisition. It is further provided that if the Pramukh fails to call the special meeting, the Up-Pramukh or the requisitionists themselves i.e. one third of the total number of members elected directly, could call for a specialmeeting. 

The Court observed that "the right of the Up-Pramukh or the requisitionists to call for a special meeting would arise only on the expiry of the first fifteen days."

The Court's judgement recorded that in the Munni Khatun case, the requisition was made on December 30, 2023 and the special meeting convened by the requisitionists, as notified by the Executive Officer to the Pramukh and Up-Pramukh was on January 12, 2024, within the fifteen days period.

The Court observed, "we are of the opinion that there is a clear statutory violation insofar as the convening of the meeting is concerned. However, the Pramukh has also failed to comply with the statutory obligation cast on the Pramukh, to call for a meeting within fifteen days; since till 12th, the 13th day, no meeting was scheduled. Since there is clear statutory violation in convening the meeting, where the No Confidence Motion was scheduled; we are of the opinion that the election convened on 22.04.2024 shall not be proceeded with."

Takshila Educational Society failed to avail alternative remedy, petition dismissed by High Court

In Takshila Educational Society v. The Assessment Unit, Income Tax Department, National Faceless Assessment, Centre, New Delhi, the division bench of Patna High Court observed, "The plea made of no oral hearing afforded has to be considered in the context of the option not having been exercised; which amounts to a waiver" in its judgement dated April 22, 2024. Takshila Educational Society, the petitioner is aggrieved with the assessment order dated March 22, 2024, passed without affording an opportunity of hearing. There is an appeal provided from the order, which has not been availed of. 

The petitioner sought an opportunity for a proper hearing. The senior counsel for the petitioner relied on a Full Bench decision of Patna High Court in Commissioner of Wealth-Tax Vs. Sri Jagdish Prasad Choudhary, (1995) 211 ITR 472X (Pat). Therein, the specific provision on which the dictum was laid was Section 18 (2) of the Wealth Tax Act, which reads as under: “18 (2) No order shall be made under sub-section (1) unless the person concerned has been given a reasonable opportunity of being heard." 

The Full Bench has held that the word “heard” occurring in Section 18(2) of the Act means to be heard “orally” and not a mere consideration of the case as made out in the written representation. Incidentally, it was also examined whether such an oral hearing can be given only on the request of the person concerned or whether under the scheme of the Act, there is an implied obligation of the concerned authority to offer an opportunity of oral hearing. It was found on the scheme of the Wealth Tax Act, specifically sub-Section (2) of Section 18 that even without a request there is an implied obligation on the authority.

The Court's judgement reads: "4. Juxtaposed with the above provision, we have to consider Section 144B(vii), which reads as under: “(vii) the assessee or any other person, as the case may be, shall file his response to the notice referred to in clause (vi), within the time specified therein or such time as may be extended on the basis of an application in this regard, to the National Faceless Assessment Centre;”

When one looked for Section 144 B (vii) in the  Income Tax Act, 1961, it was noticed that the entire Section 144 B has been "Omitted by the Direct Tax Laws (Amendment) Act, 1987" as per its Section 51 with effect from April 1, 1989. The omitted provision dealt with "Reference to Deputy Commissioner in certain cases".

Drawing on these omitted provisions, the Court observed: "5. Hence, under the scheme of the Income Tax Act, specifically after the faceless assessment was brought into force, a request has to be made for an oral hearing. There is a specific option provided, which has to be ticked in the affirmative, to make the request while uploading the objection. Unless the request is made, the faceless assessment would be concluded without an oral hearing, which again is as per the scheme of the Act. We do not think that the dictum of the Full Court applies here. We also notice that there is a provision for appeal where all the facts can be argued in person. The appellate authority also has sufficient power to get a report from the Assessing Officer, after affording an opportunity of hearing before the Assessing Officer." These observations require re-consideration in the light of the omitted provisions which appear to have erroneously been cited.   

The Court drew on the judgement of the Supreme Court in State of Himachal Pradesh v. Gujarat Ambuja Cement Limited (2005) 6 SCC 499 to ascertain the contours of the High Court's jurisdiction under Article 226 of the Constitution of India and the scope to interfere with appellable orders, as laid down by the Supreme Court. The Court has held that if an assessee approaches the High Court without availing the alternate remedy, it should be ensured that the assessee has made out a strong case or that there exists good grounds to invoke the extraordinary jurisdiction. It was clarified that the remedy of writ is an absolutely discretionary remedy. The High Court can always refuse the exercise of discretion if there is an adequate and effective remedy elsewhere. 

It observed: "The High Court can exercise the power only if it comes to the conclusion that there has been a breach of principles of natural justice or due procedure required for the decision has not been adopted. The High Court would also interfere if it comes to a conclusion that there is infringement of fundamental rights or where there is failure of principles of natural justice or where the orders and proceeding are wholly without jurisdiction or when the vires of an Act is challenged." The judgement was authored by Chief Justice K. Vinod Chandran.

The High Court reserved the liberty of the petitioner to approach the appellate authority. The period during which the writ petition, was pending, from April 10, 2024, till April 22, 2024 shall not be reckoned as delay.

Computerisation should not violate principles of natural justice, High Court sets aside the assessment order of the Income Tax Department

In District Bar Association, Supaul v. Assessment Unit, Income Tax Department, Patna High Court's bench of Chief Justice and Justice Harish Kumar set aside the assessment order of the Income Tax Department. The judgement observes, "We make it clear that the assessment order is set aside only on violation of the principles of natural justice and we have not looked at the merits of the assessment at all."

The petitioner was aggrieved with the assessment order passed on 27.03.2023 without providing adequate opportunity for being heard. The writ petition has been filed merely on the ground of violation of principles of natural justice. The request for adjournment made by the petitioner dated March 4, 2023 was filed in the portal of the Income Tax Department. Despite that, an assessment order was passed without affording any opportunity of hearing. 

Notably, the Department filed a response specifically contending that "no such request for adjournment was received in the portal of the Department." In compliance with the order of the Court, the petitioner filed a supplementary affidavit dated December 14, 2023, wherein "an auto generated mail issued from the portal of the Income Tax Department, that the request for adjournment for submission to notice under 147 is successfully submitted." The Department objected to it stating that the request for adjournment has to be uploaded in the assessment module of the “ITBA portal”, which has not received any request for extension of time. Although the Income Tax Department submitted that the adjournment request was not received in the ITBA portal but it did not disown the mail which was  issued by it. 

The Court observed that there is nothing to point out that suitable instructions were issued by the Department to the assesses to upload the adjournment requests in a particular portal. "The computerisation is to facilitate expeditious assessment and it cannot result in such gross violations of principles of natural justice." 

The judgement was authored by Chief Justice K. Vinod Chandran. The Court set aside the order dated March 27, 2023. Its direction dated April 23, 2024 reads: "The Income Tax Officer, Ward-3(4), Saharsa, who has filed the counter affidavit in the writ petition, shall on receipt of the certified copy of the judgment, facilitate the opening of the portal so as to enable filing of objections. The petitioner shall file the objections and after affording a personal hearing, the matter shall be considered afresh."

Jharkhand residents languising in Buxer jail after conviction in NDPS case, High Court to hear them on May 9

The matter related to suspension of conviction over nine quintals of ganja came up for hearing before the division bench of Justices Ashutosh Kumar and Khatim Reza. The counsel for Shankar Yadav, the second convict and the first appellant sought adjournment. The first appellant, a resident of Jharkhand is in Ara jail. Dr. Gopal Krishna, the counsel for Pritam Lakra (22), the second convict and the second appellant made a brief submission about how Lakra is not covered under offences under Section 20 (b) (ii) (C) and Section 25 of Narcotic Drugs And Psychotropic Substances (NDPS) Act, 1985 because Lakra, the resident of Jhrakhand is not a cultivator, producer, manufacturer, possessor, seller, purchaser, transporter, importer,  exporter or user of ganja. He is not the owner or occupier or controller or user of any house, room, enclosure, space, place, animal or conveyance. Therefore, he does not have the agency to knowingly permits it to be used for the commission of offence under NDPS Act by any other person.

The counsel for Pritam Lakra informed the High Court about Nav Kumar Ojha, the third convict in the case who is languishing in Buxer jail without any legal assistance because of extreme poverty and unsound mental health of his wife. He submitted that the Court may direct the Legal Services Authority to provide legal aid to Ojha, the resident of Jhrakhand. Justice Ashutosh Kumar led bench asked Dr. Krishna, the counsel to get vakalatnama from Ojha and provide free assistance. The counsel agreed to do so. The case is listed for hearing on May 9, 2024.       

Section 20 of the NDPS Act deals with punishment for contravention in relation to cannabis plants and cannabis. It states that "Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,—(a) cultivates any cannabis plant; or (b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable..."  Section 20 (ii) b of the NDPS Act states that where such contravention relates to sub-clause (b) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees. Section 20 (ii) (C) states that where such contravention relates to sub-clause (b), and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. 

 

The judgement of the the Additional Sessions Judge-VIII, Bhojpur reveals that Pritam Lakra, the helper of the truck is not covered under the ambit of Section 20 (ii) (b) (C) of the NDPS Act because there is nothing on record to show that he is a cultivator of any cannabis plant or producer, manufacturer, possessor, seller, purchaser, transporter, inter-State importer, inter-State exporter or user of cannabis. It is apparent that the Additional Sessions Judge-VIII, Bhojpur committed an error in convicting him under Section 20 (ii) (b) (C) of the NDPS Act.

As to Section 25 of NDPS Act which deals with the punishment for allowing premises, etc., to be used for commission of an offence. It states that "Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with the punishment provided for that offence." This provision too was substituted by the Narcotic Drugs And Psychotropic Substances (Amendment) Act, 2001 with effect from October 2, 2001. 

A careful reading of Section 25 of NDPS Act shows that Lakra, the helper of the  truck in question is not covered under the ambit of Section 25. It seems that the Additional Sessions Judge-VIII, Bhojpur committed an error in convicting him under Section 25.

 

Notably, Section 20 (b) (ii) (C) of the NDPS Act was substituted by the Narcotic Drugs And Psychotropic Substances (Amendment) Act, 2001 with effect from October 2, 2001. There were over 40 amendments made in the original NDPS Act, supposedly to address certain obligations specially in respect of the concept of ‘controlled delivery’ arising from the UN Convention against Illicit Traffic in Narcotic Drugs andPsychotropic Substances 1988 to which India is one of the 87 signatories out of 192 parties since March 27, 1990. Prior to that India amended the NDPS Act for the first time in 1989. The UN Convention came into force on November 11, 1990, in accordance with Article 29(1) of the Convention. The NDPS Act was amended in 2014 as well. Some 25 amendments were made under the 2014 legislation.