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BLAWG

Special powers of High Court and Court of Sessions regarding Bail

The term ‘Bail’ has not been defined under the Code of Criminal Procedure, 1973. However section 2(a) of the Code deals with “bailable offence” and “non bailable offence” and it is defined as an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and “non-bailable offence” means any other offence;

In the Black’s Law dictionary, what is contemplated in bail is to procure the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgement of the Court.[i] Bail, in general words, and is defined as the temporary release of an accused person who is awaiting trial, sometimes on the condition that a specified amount of money is lodged as security in order to secure their appearance before the Court at a later point in time.

In the instance of a bailable offence, bail is the right of the accused and in the instance of a non-bailable offence, it is up to the discretion of the Court.

Chapter-XXXIII of the Code of Criminal Procedure deals with various provisions as to bail and bonds. Sections 436-450 lays down as to when bail is the right of the accused, when bail is the discretion of the Court, in what circumstances said discretion can be exercised, how sureties may be discharged, what are the terms and conditions which would be required to be observed by the accused, what is the procedure when bond has been forfeited, who has been released on bail and what powers are vested in the Court in the event of accused committing default of bail order, cancellation of bond and bail-bond.

Section 439 specifically deals with special powers of High Court and Court of Sessions regarding bail.

Section 439 of the CrPC:

Section 439- (1) A High Court or Court of Session may direct—

(a)

 

that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;

(b)

 

that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:

Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice:

[Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860), give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.]

[(1A) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860).]

(2) A High Court or Court of Session may direct that any person who has been released on bail to be arrested and commit him to custody.[ii]

In general words, this section gives the High Court and the Court of Sessions special powers with respect to bail and these powers are wide. It may direct that any person accused of an offence and in custody be released on bail, it may also impose any condition which it considers necessary. Another special power given to the Courts under this section is the power to impose or set aside any condition imposed by a Magistrate when releasing the person on bail.

If the offence is exclusively triable by the Court of Sessions, then the High Court or the Court of Sessions shall give a notice of application for bail to the Public prosecutor unless they are of the opinion that giving such notice is not practicable and these reasons are recorded in writing by the Court.

The High Court or the Court of Sessions may also direct that any person who has already been released on bail to be arrested and then committed to custody.

Concurrent jurisdiction of the High Court and Sessions Court:

The High Court and the Court of Sessions have concurrent jurisdiction with regard to granting of bail under section 439 of the Code of Criminal Procedure, 1973. However, it is considered desirable by the High Court that the lower Courts should first be moved in this matter.[iii] This is considered of great importance because if the High Court expresses its opinion in a matter especially where the Court’s discretion is used, such an opinion of the superior Court may influence the decision of the lower Courts.

In the case of Hajialisher vs. State of Rajasthan[iv], the Court held that only in exceptional or special circumstances, the High Court may be moved first or directly for an application for bail. Generally, these applications are entertained in lower courts first.

In the case of Ram Pratap Yadav vs. Mitra Sen Yadav[v], the Supreme Court was of the opinion that, the discretion given to the High Court under section 439 of the Code should be exercised keeping in mind the reasons adduced by lower Courts for either rejecting or accepting the prayer for bail. Various parameters need to be taken into consideration before the High Court entertains such an application.

Edited by Pushpamrita Roy

Approved & Published – Sakshi Raje 

Endnotes:

[i] Black’s Law Dictionary (4thEdn.) 177.

[ii] § 439 of the Code of Criminal Procedure, 1973.

[iii] R. V. Kelkar’s Lectures on Criminal Procedure, 6thEdn. 159.

[iv]1976 Cri LJ 1658 (Raj).

[v] (2003) 1 SCC 15.

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BLAWG

Legal remedies for dishonour of cheque

The Negotiable Instruments Act, 1881 is an Act to define the law relating to promissory notes, bills of exchange and cheques. According to Section 6 of the Negotiable Instruments Act, a “cheque” is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of a truncated cheque and cheque in the electronic form.

Chapter XVII with sections 138- 142 of the Act deals with penalties in case of Dishonour of certain Cheques for Insufficiency of funds in the accounts. These provisions instil faith in the efficiency of banking operations and gives credibility to the use of negotiable instruments employed in business transactions.

What constitutes dishonour of cheque?

There are two methods of dishonouring a cheque by the paying banker, i.e., rightful dishonour of cheque and wrongful dishonour of cheque[i]. Circumstances where a cheque is rightfully dishonoured doesn’t incur any liability whereas if a cheque is wrongfully dishonoured then it attracts consequences which shall be legally redressed.

Rightful dishonour of cheque

The following are some of the circumstances where the paying banker is justified in dishonouring a cheque.

  • Insufficient funds– Where there are no sufficient funds to meet the requirement in the cheque or when the amount to the customer’s credit is insufficient to meet the whole amount of the cheque, such an instrument may be dishonoured.
  • Particulars not duly filled in– A banker can dishonour a cheque if all the required particulars of the cheque is not in order. The date, name of the payee, the amount written in both words and numbers, signature of the drawer, account number etc., is to be filled in properly, if not the banker can refuse to dishonour the cheque.
  • Not properly presented– If the cheque is not properly presented, that is to say that the cheque is presented at a branch where the customer doesn’t have an account or is presented after banking hours or is not presented within a reasonable time, the banker may refuse to honour the cheque.
  • Death of the customer– Upon the death of the customer, the balance in that account is vested with their legal representatives and once the banker receives notice of the customer’s death, he may refuse to honour any cheques that were issued by the drawer before his death, because the amount in the account now belongs to his legal representatives.

In the case of Tate vs. Hilbert[ii], it was held that if a banker honours the cheque after the death of the drawer but before the notice of his death, he is justified in doing so.

  • Insolvency of the customer- When a customer is declared an insolvent by a competent court then all of his assets are vested with the assignee and hence a banker may refuse to honour such cheques.
  • Forgery- if a cheque is forged then the Banker can dishonour it.
  • Court orders- In situations where a Court passes any attachment order, judgements or garnishee orders against persons under section 39 of the Civil Procedure Code, 1908 or under the Specific Relief Act, 1963, then the Banker may refuse to honour a cheque.

There are several other grounds such as when the customer countermands payment, closing of the drawer’s a/c, attachment under the Income Tax Act, breach of trust, defective title, post-dated cheque, mutilation of the cheque etc., that may justify dishonouring of a cheque.

Wrongful dishonour of a cheque

In lieu of a healthy banker-customer relationship, a banker has a statutory obligation to honour his customer’s cheques unless he has valid reasons to dishonour it. If dishonouring of a cheque is due to the mistake or negligence of the Banker or any of his employees, then he attracts liability. This is referred to as wrongful dishonour of a cheque and the banker who dishonours the cheque intentionally without any valid reason or by mistake or due to negligence is liable to compensate for the loss suffered by the customer.

Section 31 of the Negotiable Instruments Act, 1881 states that when a customer had sufficient balance in his account, the banker is bound to honour such a cheque and if he fails to do so, he shall compensate the drawer for any loss or damage caused by such default.

In Marzetti vs. Williams[iii], the customer Marzetti had an account with the Williams bank and Marzetti had 69 pounds in his account, later on the same day 40 pounds was paid into his account. A couple of hours later, Marzetti drew a cheque for 87 pounds and the same was presented before the bank. However, the bank didn’t take due notice of the additional 40 pounds that was credited into Marzetti’s account and dishonoured the cheque for insufficient funds. The Court held that the bank was liable for damages as a couple of hours was sufficient for the banker to calculate the amount in the customer’s account and it is injurious to the customer especially if he is a person in trade to have such a small amount of payment having been refused for payment.

Consequences of dishonour of cheque:

  • Notice- According to section 93 of the Negotiable Instruments Act, 1881, “when a promissory note, bill of exchange or cheque is dishonoured by non-acceptance or non-payment, the holder thereof, or some party thereto who remains liable thereon, must give notice that the instrument has been so dishonoured to all other parties whom the holder seeks to make severally liable thereon, and to some one of several parties whom he seeks to make jointly liable thereon.”
  • Compensation- According to section 117 of the Negotiable Instruments Act, 1881, the compensation payable in case of dishonour of promissory note, bill of exchange or cheque, by any party liable to the holder or any endorsee, shall be determined by the following rules:
  • the holder is entitled to the amount due upon the instrument together with the expense properly incurred in presenting, noting and protesting it;
  • when the person charged resides at a place different from that at which the instrument was payable, the holder is entitled to receive such sum at the current rate of exchange between the two places;
  • an endorser who, being liable, has paid the amount due on the same is entitled to the amount so paid with interest at 31[eighteen per centum] per annum from the date of payment until tender or realization thereof, together with all expenses caused by the dishonour and payment;
  • when the person charged and such endorser reside at different places, the endorser is entitled to receive such sum at the current rate of exchange between the two places;
  • the party entitled to compensation may draw a bill upon the party liable to compensate him, payable at sight or on demand, for the amount due to him, together with all expenses properly incurred by him. Such bill must be accompanied by the instrument dishonoured and the protest thereof (if any). If such bill is dishonoured, the party dishonouring the same is liable to make compensation thereof in the same manner as in the case of the original bill.
  • Liability of banker for negligently dealing with bills presented for payment- According to section 77 of the Act when a bill of exchange, accepted payable at a specified bank, has been duly presented there for payment and dishonoured, if the banker so negligently or improperly keeps, deals with or delivers back such bill as to cause loss to the holder, he must compensate the holder for such loss.[iv]

Criminal liability of Drawer of a cheque on dishonour:

According to section 138 of Negotiable Instruments Act, 1881, where any cheque that was duly presented to the bank is returned unpaid either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank, such person shall be deemed to have committed an offence, and shall be imprisoned for a term which may be extended up to two years, or with fine which may extend to twice the amount of the cheque, or both.[v]

There are also three conditions specified in the section to attract the operation of this section.

In the case of Kusum Ingots and Alloys Ltd. vs. Pennar Peterson Securities[vi], the SC held that, “The object of bringing section 138 on statute is to inculcate faith in the efficiency of banking operations and credibility in transacting business on negotiable instruments.”

Edited by Pushpamrita Roy

Approved & Published – Sakshi Raje 

Reference

[i]Dr.S.R.Myneni, Law of Banking, 2ndEdn. 354.

[ii] (1973) 2 ves. 111

[iii] (1830) 109 ER 842

[iv]S.77 of Negotiable Instruments Act, 1881.

[v]S.138 of Negotiable Instruments Act, 1881.

[vi][(2000) 2 SCC 745]

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BLAWG

Is phone audio recording an admissible evidence in courts?

Under the Indian Evidence Act, 1872, there are two types of evidence- oral evidence and documentary evidence.

Under section 3 of the Act, “Evidence” means and includes-

 (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;

 (2) all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.

Therefore, all the statements made by witnesses are classified as ‘oral evidence’ and all the documents that are produced before the Court are ‘documentary evidence’. The term ‘electronic record’ is not defined under the Indian Evidence Act, however, under section 2(t) of the IT Act, 2000, an ‘electric record’ is defined as data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche;

A phone audio recording falls within the ambit of an electronic record. In the current digital age, these devices are being used for almost everything. There is an inflow of cases where electronic records especially voice recordings are being brought before the Courts for evidence. The question of whether this evidence is admissible or not is discussed under the Indian Evidence Act, 1872.

Section 65B of the Indian Evidence Act, 1972:

Section 65B of the Act deals with the admissibility of electronic records. There are certain conditions laid down under the section and if these conditions are satisfied then such evidence shall be admissible in any proceedings before the Courts. The conditions are as follows;

  • The computer source containing the information, which is being produced as evidence, has to be produced by the computer during the period over which it was used regularly to store or process information for the purposes of any activities regularly carried on and it must be carried on by a person who has lawful control over the use of that computer.
  • During the said period, information contained in the electronic record or of a kind from which it was derived has to be regularly fed into the computer in the ordinary course of these activities.
  • Throughout the significant part of this period, the computer must be operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation, then for the duration of that part of the period, the accuracy of the contents of the electronic record must not be effected.
  • The information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

According to section 65B (4), if evidence is adduced during any proceeding before a Court by virtue of this section, then a certificate stating any of the following needs to be furnished;

  • A certificate identifying the electronic record containing the statement and describing the manner in which it was produced or;
  • A certificate giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; or
  • It is to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities shall be evidence of any matter stated in the certificate.

Judicial decisions on admissibility of recorded evidence:

RM Malkani vs. State of Maharastra[i]

The Court in this case laid down the following conditions to allow a tape recorded conversation to be admissible as evidence before a court of law.

  • The conversation recorded on tape must be relevant to the matter in issue.
  • The voice recorded must be identified.
  • The accuracy of the tape-recorded conversation is proved by eliminating the possibility of erasing the tape-recorder.

“Tape recorded conversation is admissible, provided first the conversation is relevant to the matters in issue, secondly, there is identification of the voice and thirdly, the accuracy of the tape-recorded conversation is proved by eliminating the possibility of erasing the tape-recorder. The tape-recorded conversation is, therefore, a relevant fact under section 8 of the Evidence Act and is admissible under section 7 of the Evidence Act.”

Ram Singh v. Col. Ram Singh[ii]

The Court in this case held that, the evidence recorded on a tape Recorder or other mechanical process is in favour of the admissibility of the statements subject to certain safeguards such as;

  • The voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.
  • The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence- direct or circumstantial.
  • Every possibility of tampering with or erasure of a part of a tape-recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
  • The statement must be relevant according to the rules of Evidence Act.
  • The recorded cassette must be carefully sealed and kept in safe or official custody.
  • The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.

K. Velusamy vs. N. Palanisamy[iii]

The Supreme Court in this case, considered the telephonic conversation recording and came to the conclusion that a disccontaining recording of telephonic conversation could be a valid evidence according to Section 3 of the Evidence Act and Section 2 (t) of the IT Act. The Supreme Court also observed that electronically recorded conversation is admissible in evidence, if the conversation is relevant to the matter in issue and the voice is identified and the accuracy of the recorded conversation is proved by eliminating the possibility of erasure, addition or manipulation.

In conclusion, phone audio recording is admissible as evidence in Courts under section 65B of the Indian Evidence Act, 1872. But, it is also subject to certain conditions are prescribed by the Courts in various precedents.

Edited by Pushpamrita Roy

Approved & Published – Sakshi Raje 

Reference

[i]1973 AIR 157

[ii]1985 Supp SCC 611

[iii](2011) 11 S.C.C. 275

Categories
BLAWG

What are the general rules of transferability?

The Transfer of Property Act, 1882 was enacted on 17th February 1882 and it came into force on 1st July, 1882. The Act regulates the transfer of property in India and contains provisions relating to Sale of immovable property, discharge of encumbrances on sale, Mortgages and Charges of Immovable property, rights and liabilities of Mortgagor and Mortgagee and Leases of immovable property.

“Property” has not been defined under the Act, however, under section 5 of the Act, “transfer of property” is defined and it reads as follows;

“Transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons.

What may be transferred?

Transferability of property is the general rule whereas its non-transferability is an exception. Section 6 of the Act elaborates on what may be transferred.

SpesSuccessionis – section 6 (a)

Under English law, during the lifetime of a person, the chance of his ‘heir apparent’ succeeding to the estate or the chance of a relation obtaining a legacy under his will is known as a spessuccessionis (chance of succession).[i]

For instance, if John, who is the father of Robert, has a property in his name. Now, Robert is an heir apparent to this property if John dies. However, Robert is not allowed to sell or transfer or alienate the property during the lifetime of John without his consent because the property is in the name of John and it will only be inherited by Robert upon John’s death. Therefore, transfer of property cannot be validated by a mere chance of succession.

In the case of Ananda Mohan vs. Gaur Mohan[ii], a Hindu contracted to sell an immovable property to which he was the nearest reversionary heir expectant upon the death of a widow who was in possession of that property. The Privy Council held that such a contract was void since section 6 (a) of the Transfer of Property Act, forbids the transfer of an expectancy. He was only going to inherit the property upon the death of the widow and that was a spes successionis which is void ab inito.

Right of re-entry- section 6 (b):

Re-entry refers to the right to continue or resume possession of a property which, for a certain period of time, has been given to the possession of another. This is generally seen in cases of a leased out land.

Section 6 (b) of the Act states that a mere right of re-entry for breach of a condition subsequent cannot be transferred to anyone except the owner of the property. A condition subsequent is when, upon happening of a particular event, the rights and duties of a party in a contract is extinguished.

For instance, Rohan has leased out a building to Nita for a period of 3 years, and there are certain conditions laid down in the lease agreement between the two. If Nita, being the lessee, breaches any of the conditions laid down in the agreement, then Rohan, as the lessor, has the right of re-entry into the building. The lessor usually reserves the right of re-entry after transferring possession of his property.

Right to re-enter is a personal right enjoyed by the lessor and the same cannot be transferred to another person, if it is transferred then according to section 6 (b), it is rendered void.

Easements- section 6 (c):

An easement is a right which the owner or occupier of a certain land possesses as such for the beneficial enjoyment of that land to do and continue to prevent something being done, in or upon or in respect of certain other land which is not his own.[iii]

An easement involves a dominant heritage and a servient heritage. The dominant heritage is a land to which the benefit of the easement attaches, and the servient heritage is a land to which the burden of the easement is attached.

If X owns a house and has a right of way through B’s land, the house is the dominant heritage and the right of way is the servient heritage.

According to section 6(c), an easement cannot be transferred without the dominant heritage. In the above example, X cannot just transfer the right of way to Y, however, if X transfers the house to Y, Y will receive the right of way as well.

Restricted interests- section 6 (d):

In certain situations, the interest which a person has in a property may be such that he alone can enjoy it and no one else. Such interests are considered inalienable. According to section 6(d), an interest in property which is restricted in enjoyment to the owner personally cannot be transferred by him.

The following are a list of restricted interests that cannot be transferred:

  • Service Inams
  • Religious office- in the case of Raja Varma vs. Ravi Varma[iv], a manager of a temple transferred his right over the management of the temple to the plaintiff who then filed a suit against the defendant to recover jewels of the deity of the temple from the defendants. The defendants contended that the plaintiff was not the manager of the temple and that they had no right to file a suit against them. The Court upheld the defendant’s contention and stated that management of the temple was a religious office and it couldn’t be alienated.
  • A right of Pre-emption
  • Emoluments which are attached to the priestly office.[v]

A right to future maintenance- section 6 (dd):

In the case of Thimmanayanim vs. Venkatappa[vi], the Madras High Court held that the right to future maintenance is transferable if it is obtained by a decree. However, in the case of Asad Ali vs. Haidar Ali[vii], the Calcutta High Court took a contrary view. In order to resolve this conflict, the Transfer of Property (Amendment) Act, 1929 inserted clause dd to section 6 according to which, transfer of the right to receive maintenance is a personal right which cannot be validated.

A mere right to sue- section 6 (e):

A bare right to sue is non-transferable. But, if property is transferred and the right to sue is an accrued right, then it may also pass along with the property. In the case of Shankarappa vs. Khatumbi[viii], a sale of property was made along with the right to sue and collect mesne profits. The Bombay High Court considered that in this case, it wasn’t a transfer of mere right to sue but the property was also transferred and hence such a transfer is valid.

Public Office- section 6 (f):

According to section 6(f), a public office or the salary whether before or after it has become payable to the public officer cannot be transferred. Section 2(17) of the Civil procedure Code, 1908 defines the term “public officer”.

Pensions- section 6 (g):

Stipends allowed to military, naval, air-force and civil pensioners of the government and political pensions cannot be transferred. A pension is a periodical payment of money made by the government to the pensioner. In the case of Saundariya Bai v. Union of India, AIR 2008 MP 227 it was held that pension is non-transferable, so long as it is unpaid and in the hands of the government.[ix] 

Prohibited transfers- section 6 (h):

A transfer made in the following situations are considered as void:

  • if it is opposed to the nature of the interest affected or
  • for an unlawful object or consideration within the meaning of section 23 of the Indian Contract Act, 1872 or
  • to a person legally disqualified to be transferee.

Unlawful transfer- section 6(i) :

The following persons are not authorized to assign their interest according to section 6(i):

  • a tenant having an untransferable right of occupancy or
  • the farmer of an estate in respect of which default has been made in paying revenue, or
  • the lessee of an estate, under the management of a Court of Wards.

Edited by Pushpamrita Roy

Approved & Published – Sakshi Raje 

Endnotes:

[i] G.C.V. SubbaRao’s Transfer of property Act, revised 16th ed, 37.

[ii] 50 Cal 929.

[iii]section 4 of the Easements Act, 1882

[iv] I. Mad 235 (P.C)

[v]https://blog.ipleaders.in/transfer-of-property-act-section-6/

[vi] (1978) Mad. 713 (F.B)

[vii] 38 Cal. 13.

[viii] 56 Bom 403.

[ix]https://indiankanoon.org/doc/45285691/

Categories
BLAWG

What does privileged communication mean?

When two individuals are in a legally recognized relationship, they are not bound to disclose any details of the communication that happened between them by virtue of this relationship. Such a relationship is referred to as a protected relationship and this form of communication is known as ‘Privileged Communication’.

According to the Black’s Law Dictionary[i], Privileged Communications are “those statements made by a certain person within a protected relationship…which the law protects from forced disclosure on the witness stand…”

It extends to a variety of legal relationships such as Attorney and Client, Doctor and Patient, Husband and Wife, Priest and Penitent and it also extends to the State in the form of State Privilege.

Essentials to claim Privileged Communication:

It is important to note that the following pre-requisites need to be ensured in order for any communication to be considered as a Privileged communication;

  • The communication should take place between individuals who are in a protected legal relationship
  • The communication should take place in private
  • The information communicated cannot be disclosed to a third party as the privileged status ends once the information is disclosed to a third party who was not a part of the interaction.[ii]

Effect of Privileged Communication:

As per the definition of Privileged Communication, the persons communicating in the said protected relationship cannot be compelled to disclose the details of the communication on a witness stand. Whatever is communicated between the persons within such a protected relationship is considered as confidential and can’t be forced by law for disclosure.

The rule of privileged communication is that the details of the communication are inadmissible as evidence in a court of law. The objective behind the same is to protect the confidentiality and sanctity of certain protected relationships.

Any disclosure or exchange of information of the privileged communication to an external party or to the Court is not permissible without the consent of the other party involved in the interaction.

Types of relationships where Privileged communication is applicable to:

Spousal relationship

Any communication between a married couple is considered to be confidential. Either of the spouses cannot disclose details of their communication to a third party or a Court cannot compel either the husband or wife to testify against each other. This privilege also extends to dissolved marriages. In M.C. Verghese v. T J. Ponnam[iii], the Court held that if the marriage was subsisting at the time when the communications were made, the bar prescribed by Section 122 of the Indian Evidence Act, 1872 will operate. There existed a defamation case between the husband and wife and the Court required the wife to appear as a witness to give evidence about the communication between the married couple. In such a situation, communication couldn’t be disclosed unless the husband consents because, if the marriage was subsisting at the time when the communication was made the bar prescribed by s. 122 would operate.

The legal provision that deals with privileged communication between spouses is under Section 122 of the Indian Evidence Act, 1872.[iv]

The exceptions to this privilege are;

  • When there is a dispute between the married persons, then they can disclose details about their communication.
  • When one married person is being prosecuted for a crime committed against the other, this privilege is not available.

Priest and penitent relationship

In the Roman Catholic Church a penitent is a person who confesses their sins to a priest and submits to the penance that he imposes. It is also referred to as clergy-penitent privilege. In such a relationship, the priest is bound by privileged communication to not disclose the details of the communication or confessions between them.

The clergy-penitent privilege originated in the Canon law of the Roman Catholic Church. Under Canon law, “the seal of the confessional is ‘inviolable.’” A priest could be denounced for disclosing the details of a confession.[v]

This privilege is given recognition in the United States and several other countries. However, Indian legislations only provide for privileged communication between spouses and legal advisers and priest and penitent relationship is not covered under Indian law.

Doctor and patient relationship

Doctor and patient confidentiality is one of the most discussed areas and is prevalent across nations. Any information regarding a patient, that a doctor comes across by virtue of his capacity as a doctor is not to be disclosed to any third party. Any sort of communication between a doctor and their patient remains confidential. The Medical Council of India is authorized to revoke the license of the doctor who breaches the confidentiality.

Under The Indian Medical Council (Professional Conduct, Etiquettes and Ethics) Regulations, 2002[vi], there is a bar on doctors to disclose confidential information regarding their patients. Rule 7.14 deals with the doctor patient confidentiality.

However, the exceptions to this rule include:

  • when the doctor is called upon by a court of law under the orders of the Presiding Judge.
  • when there is a serious risk to a person or the community at large.
  • When it is a case of notifiable diseases, the concerned public health authorities must be informed immediately.

Lawyer and Client relationship

Privileged communication extends to Lawyer and his clients as well. Any communication between an attorney and his client is protected and remains confidential.

The Attorney-Client privilege in India is governed by legal provisions under the following legislations:

  • The Indian Evidence Act, 1872
  • Bar Council of India Rules 
  • Advocates Act, 1961.

Sections 126-129 of the Indian Evidence Act, 1872 deal with privileged communication in a professional relationship.

Section 126[vii] states that, No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client’s express consent, to disclose any communication or to disclose the contents of any documents or to disclose any advice given by him to his client in the course of his employment or for the purpose of such employment.

The exceptions for this privilege are as follows;

  • Privilege may be waived with express consent of the client.
  • If such communication is in furtherance of any illegal purpose.
  • Any fact observed by a lawyer in the course of his employment, showing that any crime or fraud has been committed by the client since the commencement of his employment.

In Municipal Corporation of Greater Bombay v. Vijay Metal Works[viii] the Court held that “a salaried employee who advises his employer on all legal questions and also other legal matters would get the same protection as others, viz., barrister, attorney, pleader or vakil, under Ss.126 and 129, and, therefore, any communication made in confidence to him by his employer seeking his legal advice or by him to his employer giving legal advice should get the protections of Ss.126 and 129.” 

Conclusion

Privileged communication protects the details of an interaction between individuals in a protected relationship. According to the rule of privileged communication, a court of law cannot ask an individual in this protected relationship to disclose any details of this communication giving due regard to the exceptions.

Edited by Pushpamrita Roy

Approved & Published – Sakshi Raje 

Endnotes:

[i] Black’s Law Dictionary, 6th ed., 1991.

[ii]https://blog.ipleaders.in/privileged-communications/

[iii] M.C. Verghese v. T J. Ponnam, (1970 AIR 1876)

[iv] §122, Indian Evidence Act, 1872

[v] F. Robert Radel, II & Andrew A. Labbe, ‘The Clergy-Penitent Privilege: An Overview’https://www.gspalaw.com/the-clergy-penitent-privilege-an-overview/

[vi]Rule 7.14, The Indian Medical Council (Professional Conduct, Etiquettes and Ethics) Regulations, 2002; https://www.mciindia.org/documents/rulesAndRegulations/Ethics%20Regulations-2002.pdf

[vii]§126, Indian Evidence Act, 1872

[viii]Municipal Corporation of Greater Bombay v. Vijay Metal Works (AIR 1982 Bom 6) 

Categories
BLAWG

Compromise under non-compoundable offences

A compromise is an agreement between two or more parties to settle their differences amicably, by avoiding a lawsuit.

Under the Code of Criminal Procedure, 1973 there is a distinction made between compoundable offences and non-compoundable offences. In general words, compoundable offences are those offences where a compromise can be drawn between the parties in order to drop all charges against the accused and a non-compoundable offence is where the charges cannot be dropped against the accused by way of a compromise due to the seriousness of the offence.

Distinction between Compoundable and non- compoundable offences:

Section 320 of CrPC[i] deals with Compoundable offences, these are offences that are less serious in nature. Under a compoundable offence, the complainant who has filed the case may enter into a compromise and agree to drop all the charges against the accused. Two important elements that constitute such a compromise are that;

  • such a compromise is bonafide;
  • the complainant has not received any consideration that he is not entitled to.

Section 320 classifies compoundable offences into two types. The kinds of offences that fall under the different classification of compounding is as follows;

  • Where Court permission is not required before compounding– Voluntarily causing hurt, Wrongfully restraining or confining any person, Assault or use of criminal force, Theft, Cheating, Fraudulent removal or concealment of property, Criminal trespass, Using a false trade or property mark, Adultery, Criminal intimidation etc.
  • Where Court permission is required before compounding– Causing miscarriage, Voluntarily causing grievous hurt, Criminal breach of trust, Marrying again during the life-time of a husband or wife etc.

Non-compoundable offences are those offences that are slightly more serious in nature than compoundable offences. Due to the gravity of these offences, they cannot be compounded and they can only be quashed. All the offences that are not mentioned under section 320 of CrPC are classified as non-compoundable cases. In these cases, the State or the police act as the complainants and hence it is not possible for them to enter into a compromise with the accused to drop all the charges.

In the case of Rameshchandra J, Thakkar vs. A. P. Jhaveri & Anr[ii], it was held that, “where an acquittal is based on the compounding of an offence and the compounding is invalid under the law, the acquittal would be liable to be set aside by the High Court in exercise of its revisional powers.”

If a non-compoundable offence has been compounded, against the law and the accused has been acquitted based on the same compromise, the High Court has the power to set aside such an order.

Power of High Court under section 482 of CrPC:

Section 482 of CrPC[iii] gives the High Court inherent powers to deal with matters in order to;

  • to give effect to any order under CrPC, or
  • to prevent abuse of the process of any Court or
  • to secure the ends of justice.

In the landmark case of Gian Singh vs State Of Punjab & Anr[iv] the Supreme Court held that “In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute, would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society.”

If the crime is serious in nature and has a grave impact on the society, the High Court is empowered to quash the proceedings even if the parties have arrived at a compromise. However, if it is a civil matter, the wrong is personal in nature and if the parties have resolved the dispute by way of a compromise then the proceedings may be quashed.

Narinder Singh v State of Punjab ((2014) 6 SCC 466):

In the above mentioned case, the Supreme Court took into consideration all the principles laid down in several judgements regarding compromise in non-compoundable cases and laid down the following guidelines for quashing criminal proceeding in case of non-compoundable offences by high courts when invoking their inherent powers under Section 482 of the CrPC;

Civil matter

If the proceedings deal with a civil or a commercial matter, the wrong done is personal in nature and therefore the High Court can quash the proceedings by invoking their powers under section 482 of CrPC.

Heinous and serious offences-

If the proceedings deal with a heinous or a serious offence, the High Court must refrain from exercising their powers under section 482 of CrPC to quash the proceedings.

Section 307 of IPC-

This section deals with attempt to murder under the Indian Penal Code and it is categorized as a heinous and a serious offence. However, in this case the Court held that the High Court cannot rest its case completely on the fact that it is classified as a serious offence and instead the High Court shall examine all the evidence presented and determine if incorporation of section 307 is for name sake or if there is actually enough evidence to prove the same. For this purpose, the High Court shall examine the nature of injury, on which part of the body the injury is made, nature of the weapon used etc.

Special statutes-

If the offences are under special statutes like Prevention of Corruption Act etc., the High Court must refrain from quashing the criminal proceedings even if the parties have entered into a compromise.

Conduct of the Accused-

When the offences involved are private in nature, the high court, while exercising its power under Section 482 of the CrPC in respect of non-compoundable offences on ground that there is a compromise / settlement between the victim and accused, is required to consider the antecedents and conduct of the accused.[v]

Conclusion:

Therefore, the above mentioned guidelines are to be taken into consideration when the High Court is quashing a proceeding because the parties have arrived at a compromise in a non-compoundable offence. The Supreme Court under a bench of Justices R.Banumathi and A.S. Bopanna in the case of Manjit Singh vs. State of Punjab[vi] held that it would not be appropriate to ignore and keep aside statutory provisions in order to allow compounding of an offence that is not compoundable under the law. However, they also said that while sentencing the accused for a non-compoundable offence, the compromise entered into between the parties is indeed a relevant circumstance for considering the quantum of sentence.

Edited by Pushpamrita Roy

Approved & Published – Sakshi Raje 

Endnotes:

[i] § 320, Code of Criminal Procedure, 1973.

[ii]1973 AIR 84

[iii]§ 482, Code of Criminal Procedure, 1973

[iv]((2012) 10 SCC 303)

[v]https://www.mondaq.com/india/Litigation-Mediation-Arbitration/793048/Compounding-Of-Non-Compoundable-Offences-By-High-Courts-Under-Section-482-Of-CRPC-Supreme-Court-Re-Affirms-Position

[vi][Criminal Appeal Nos. 1090 of 2019 arising out of SLP (CRL.) No. 8293 of 2018]

Categories
BLAWG

How different is session trial than other trails?

One of the basic classifications of offences in the Code of Criminal Procedure, 1973 is the “Summons case” and “Warrant case”. According to section 2(x) of the Code of Criminal Procedure, a Warrant case refers to any case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. Whereas, a Summons case, according to section 2(w) of the Code, means a case relating to an offence not being a warrant case. In other words, Summons case includes all cases relating to offences where the punishment is less than two years.

The Code has laid down the following types of Trial procedures:

1. Sessions Trial or Trial before a Sessions Court,

2. Warrant Trial or Trial of Warrant cases by Magistrates

3. Summons Trial or Trial of Summons cases by Magistrates and

4. Summary Trials.

The Trial procedure for a Warrant case is much more elaborate than the trial procedure for a Summons case. Even under Warrant trials, the cases relating to offences of higher gravity are dealt with by the Sessions Court whereas the cases relating to offences of lesser gravity are dealt with the Magistrates.

Classification of offences- Sessions Court or the Magistrates:

Section 26 of the Code titled “Courts by which offences are triable” read with Schedule I of the Code titled “Classification of Offences” are used to determine whether an offence is triable by the Magistrate or the Court of Sessions.

However, even in cases where an offence is exclusively triable by Sessions Court, it cannot take cognizance of such an offence. According to Section 209 of the Code, A competent Magistrate may take cognizance of such an offence and then commit the case to the Court of Sessions for Trial.
Although Section 199(2) of the Code acts as an exception to this rule where, a Court of Sessions may directly take cognizance of an offence without the case being committed to it in case of defamation of high dignitaries and public servants under certain circumstances. Such trials in the Court of Sessions shall be carried out in accordance with the normal procedure followed by a Magistrate in the trial of a case. The procedure for the same is detailed out under section 237 of CrPC.

Procedure for Sessions Trials:

Chapter XVIII titled ‘Trial before a Court of Session’ under sections 225-237 of CrPC deal with Sessions trial.

According to Section 225 of the Code, in ever trial before a Court of Sessions, the prosecution will be conducted by a Public Prosecutor.[i]

According to section 226, when the accused appears or is brought before the Court after the case has been committed to the Court of Sessions by the competent Magistrate, the prosecution will describe the charges brought against the accused and states all the evidence in pursuance of the same for the Court’s consideration.

Upon consideration of all the documents and submissions made by the prosecution and the accused, if the Judge feels that there isn’t sufficient ground to proceed against the accused, then he may discharge him after recording the reasons for the same according to section 227 of CrPC.

In the popular case of Century Spinning and Manufacturing Company vs. State of Maharashtra[ii], The Court laid down that, if there was “no sufficient ground for proceeding” then the proceeding should no longer be conducted as it might result in wastage of Court’s precious time and an innocent man is being humiliated without any valid ground.[iii]

However, if upon consideration of the above mentioned documents and submissions, the Court is of the opinion that the there are grounds for presuming that the accused has committed an offence;

  • Which is not exclusively triable by the Sessions Court, then the Court may frame charges and transfer the case for trial to the appropriate Court.
  • Which is exclusively triable by the Sessions Court, the Court shall frame a charge in writing against the accused according to section 228 of CrPC.

If the Accused pleads guilty, then the Judge will record the plea and in his discretion convict the accused according to section 229 of the Code. In State of Gujrat vs. Dinesh Chandra Harjibhai Patel[iv], the Court held that, a person is taken to have pled guilty only if he has pled guilty to the facts constituting ingredients of the offence without adding anything external to it. The Supreme Court has also stated on this matter in the case of Pawan Kumar vs. State of Haryana[v] that, if an accused who has not been confronted with the substance of allegations against him, pleads guilty to the violation of a provision of law, that plea is not a valid plea at all.

If the accused doesn’t plead guilty or doesn’t plead or wants to be tried, then the Court shall fix a date for examination of witnesses under section 230.

Upon hearing the evidence for prosecution, defence on point, examination of the accused and other procedures, if the Judge is of the opinion that the accused did not commit the offence, then he may record an order of acquittal according to section 232 of CrPC. And if the Judge is of the opinion that the accused did commit the offence, then he may hear the accused on the question of sentence and pass a sentence on him according to the law under section 235 of CrPC.

Differences between Sessions Trial and other forms of Trial:

There are several common features among the different types of trials in CrPC related to Language of the Courts, Power of Courts to summon any material witnesses or to examine persons present, Power of Court to order payment of expenses of Complainants and witnesses, Commissions for the examination of witnesses and a few more[vi], however, there are a few significant differences between them as well;

Sl. no.

Points of Difference

Sessions Trial

Warrant Trial

Summons Trial

Summary Trial

01

Definitions

All warrant cases where the offence is exclusively triable by a Court of Sessions and cases that are committed to the Court by a competent Magistrate.

All warrant cases triable by the Magistrates where the offences are punishable with imprisonment for a term exceeding two years.

All summons cases related to the offences punishable with imprisonment for a term below two years.

All summons cases related to offences punishable with imprisonment for a term less than 3 months.

02.

Provisions

Sections 225-237 of CrPC

Sections 238-250 of CrPC

Sections 251- 259 of CrPC

Sections 260-265 of CrPC

03.

Type of Offence

Gravest and the most serious offences

Serious offences

Minor offences

Petty offences

04.

Type of Punishment

Cases relating to offences punishable with death penalty, life imprisonment or imprisonment for a term exceeding 7 years.

Cases relating to offences punishable with an imprisonment for a term above 2 years.

Cases relating to offences punishable with an imprisonment for a term less than 2 years.

Cases relating to offences punishable with an imprisonment for a term less than 3 months.

Along with the above basic differences, the procedure for the same shall also vary in accordance with the provisions mentioned in the Code of Criminal Procedure, 1973. For instance, “Framing of Charges” is not necessary in Summons Trial whereas it is an essential part of the procedure in Sessions and Warrant Trial.

Edited by Pushpamrita Roy

Approved & Published – Sakshi Raje 

Reference:

[i] Public prosecutor defined under Section 2 (u) of CrPC, 1973.

[ii]Century Spinning and Manufacturing Company vs. State of Maharashtra  AIR 1972 SC 545

[iii]https://blog.ipleaders.in/difference-between-session-trial-and-warrant-trial/

[iv] State of Gujrat vs. Dinesh Chandra Harjibhai Patel [1994 Cri LJ 1393 (Guj)]

[v] Pawan Kumar vs. State of Haryana [ (1996) 4 SCC 17 ]

[vi]R.V. Kelkar’s Lectures on Criminal Procedure, 6th Ed, 193.

Categories
BLAWG

What are the important Motor Vehicle Act provisions everyone should know about?

The Motor Vehicles Act, 1988 was enacted by the Parliament of India in 1988 and it came into force from 1st July, 1989. It governs and regulates important aspects of road transport vehicles by including provisions for licensing drivers and conductors, registration of Motor vehicles, control of transport vehicles, control of traffic, no fault liability provisions, insurance for motor vehicles etc. It also lays down an elaborate list of offences and penalties under the Act as well as the Central Motor Vehicle Rules, 1989.

The Motor Vehicles (Amendment) Bill, 2019 was introduced in Lok Sabha on July 15, 2019 by the Ministry of Road Transport and Highways. The Bill received the assent of the President on the 9th August, 2019 and became the Motor Vehicles (Amendment) Act, 2019. It seeks to amend the Motor Vehicles Act, 1988 to provide for road safety.  The Act provides for grant of licenses and permits related to motor vehicles, standards for motor vehicles, and penalties for violation of these provisions.[i]

Driving Licenses under the Act:

  • According to section 3 of the Act, it is necessary to have a driving license for any person to drive a motor vehicle at any public place. Section 4 of the Act prescribes the age limit to hold a driver’s license. A driver’s license can be issued to a person once he/she attains the age of 18. One exception to this is the motor cycle with engine capacity for not more than 50 cc which can be ridden by any person above the age of 16 years and a transport vehicle shall only be driven by a person above the age of 20 years.
  • Section 19 deals with the Power of a licensing authority to disqualify someone from holding a license or revoking such license under circumstances.

The following are the circumstances in which the power under this provision may be exercised;

(a) is a habitual criminal or a habitual drunkard;                                                          

(b) is a habitual addict to any narcotic drug or psychotropic substance within the meaning of the Narcotic Drugs and Psychotropic Substances Act, 1985;

(c) is using or has used a motor vehicle in the commission of a cognizable offence;   

(d) has by his previous conduct as driver of a motor vehicle shown that his driving is likely to be attended with danger to the public;

(e) has obtained any driving license by a fraud or misrepresentation;

(f) has committed any such act which his likely to cause nuisance or danger to the public, as may be prescribed by the Central Government, in accordance with this Act;

(g) has failed to submit to, or has not passed, the tests referred to under the Act;

(h) being a person under the age of eighteen years who has been granted a learner’s license or a driving license with the consent in writing of the person having the care of the holder of the license and has ceased to be in such care.[ii]

The authority is expected to give the holder of the driving license an opportunity of being heard and then, if satisfied with any of the above mentioned situations, may record reasons in writing to either disqualify the person from holding the license or revoke such a license.

Control of Traffic:

  • Section 119 of the Act imposes a duty on every driver of a motor vehicle to obey traffic signs and shall obey all instructions given by any police officer for the time being engaged in regulating traffic in any public place.
  • Section 128 of the Act provides for safety measures for drivers and pillion riders, according to which a driver of a two-wheeled motor cycle is not allowed to carry more than one person in addition to himself on the motor cycle.
  • Section 129 of the Act makes it mandatory for every person driving or riding a motor vehicle to wear protective headgear (i.e., Helmet) while in a public place. However, this section shall not apply to a person who is a Sikh, if he is, while driving or riding on the motor cycle, in a public place, wearing a turban.
    However, after the Amendment in 2019, every person, above four years of age, driving or riding or being carried on a motorcycle (i.e., pillions) shall wear protective headgear while in a public place. Therefore, after the amendment, it is now mandatory for every person driving or riding along with the pillion on the vehicle should wear a helmet, given that the pillion rider is above the age of 4 years.
  • The following duties are imposed on the driver or owner of a motor vehicle in case of accident and injury to a person according to section 134 of the Act.

When any person is injured or any property of a third party is damaged, as a result of an accident in which a motor vehicle is involved, the driver of the vehicle or other person in charge of the vehicle shall-

(a) take all reasonable steps to secure medical attention for the injured person, by conveying him to the nearest medical practitioner or hospital;

(b)  give on demand by a police officer any information required by him,

(c)  give information in writing to the insurer, who has issued the certificate of insurance, about the occurrence of the accident.[iii]

  • After the amendment in 2019, a new section was inserted in accordance with section 134, namely section 134A titled ‘Protection of Good Samaritans.’ According to this section, a “Good Samaritan” means a person, who in good faith, voluntarily and without expectation of any reward or compensation provides emergency medical or non-medical care or assistance at the scene of an accident to the victim or transports such victim to the hospital, and according to section 134A, such a person shall not be liable for any civil or criminal action for any injury to or death of the victim of an accident involving a motor vehicle, where such injury or death resulted from the Good Samaritan’s negligence in acting or failing to act while rendering emergency medical or non-medical care or assistance.

Insurance:

Chapter XI of the 1988 Act is substituted with a new Chapter XI through the 2019 amendment. The Amendment requires the Central government to constitute a Motor Vehicle Accident Fund, to provide compulsory insurance cover to all road users in India.  It will be utilised for:

  • treatment of persons injured in road accidents as per the golden hour scheme,
  • compensation to representatives of a person who died in a hit and run accident,
  • compensation to a person grievously hurt in a hit and run accident, and
  • compensation to any other persons as prescribed by the central government. 

This Fund will be credited through:

  • payment of a nature notified by the central government,
  • a grant or loan made by the central government,
  • balance of the Solatium Fund (existing fund under the Act to provide compensation for hit and run accidents), or
  • any other source as prescribed the central government.[iv]

Offences:

Chapter XIII of the 1988 Act contains provisions for Offences and Penalties under the Act.

  • Section 177 is a general provision for punishment of offences under which, whoever contravenes any provisions of the Act, rule, regulation or notification, then for the first offence the punishment shall be Rs. 500 (after the 2019 amendment) and for a subsequent offence, the punishment shall be a fine of Rs. 1500 (after the 2019 amendment).
  • Under section 181, any person driving a vehicle in contravention with the driving license provisions under sections 3 & 4 of the 1988 Act shall be punished with imprisonment for a term which may extend to three months, or with fine which may extend to five thousand rupees (after the 2019 amendment).
  • Under section 184 of the Act, whoever drives a motor vehicle at a speed or in a manner which is dangerous to the public or which causes a sense of alarm or distress to the occupants of the vehicle, other road users, and persons near roads, shall be punishable for the first offence with imprisonment for a term which may extend to one year but shall not be less than six months or with fine which shall not be less than one thousand rupees but may extend to five thousand rupees, or with both, and for any second or subsequent offence if committed within three years of the commission of a previous similar offence with imprisonment for a term which may extend to two years or with fine which may extend to ten thousand rupees, or with both.

After the amendment in 2019, the following situations shall amount to driving which is dangerous to the public.

 (a) jumping a red light;

(b) violating a stop sign;

(c) use of handheld communications devices while driving;

(d) passing or overtaking other vehicles in a manner contrary to law;

(e) driving against the authorised flow of traffic; or

(f) driving in any manner that falls far below what would be expected of a competent and careful driver and where it would be obvious to a competent and careful driver that driving in that manner would be dangerous.[v]

Conclusion:

The Motor Vehicles (Amendment) Bill, 2019 brought in significant changes to the Principal Act (i.e., 1988 Act) including changes like omitting the concept of ‘No fault’ liability in cases where accidents led to death or permanent disablement. It also substituted the terms of punishment under Chapter XIII that deals with offences and penalties, with higher sentences and fines.

Edited by Pushpamrita Roy

Approved & Published – Sakshi Raje 

Reference:

[i]https://prsindia.org/billtrack/motor-vehicles-amendment-bill-2019

[ii]s.19 of the Motor Vehicles Act, 1988.

[iii]s.134 of the Motor Vehicles Act, 1988.

[iv]https://prsindia.org/billtrack/motor-vehicles-amendment-bill-2019

[v]http://egazette.nic.in/WriteReadData/2019/210413.pdf

Categories
BLAWG

What are the different kinds of trials in Criminal Procedure Code?

The Code of Criminal Procedure, 1973 provides for different types of criminal trials for different types of criminal cases. If the offence is of a serious nature, the trial procedure is more elaborate whereas for offences of lesser gravity, the trial procedure is simple and less elaborate.

One of the basic classifications of offences is “Summons case” and “Warrant case”. According to section 2(x) of the Code of Criminal Procedure, a Warrant case refers to any case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. Whereas, a Summons case, according to section 2(w) of the Code, means a case relating to an offence not being a warrant case. In other words, Summons case includes all cases relating to offences where the punishment is less than two years.

The Trial procedure for a Warrant case is much more elaborate than the trial procedure for a Summons case. Therefore, the type of Trial procedure depends upon the classification of offences. The Code has laid down the following types of Trial procedures:

1. Trial before a Sessions Court (Sessions Trial),

2. Trial of Warrant cases by Magistrates (Warrant Trial),

3. Trial of Summons cases by Magistrates (Summons Trial) and

4.Summary Trials.

It is popularly considered that the first two types of Trial procedures are adopted in Warrant Cases while the last two types of Trial procedures are adopted in Summons Cases.[i]

Trial before a Sessions Court or Sessions Trial:

As discussed above, Trials of Warrant cases are more elaborate and are of a more serious nature than that of the Trials of Summons cases. Even under Warrant trials, the cases relating to offences of higher gravity are dealt with by the Sessions Court whereas the cases relating to offences of lesser gravity are dealt with the Magistrates.

Section 26 of the Code titled “Courts by which offences are triable” read with Schedule I of the Code titled “Classification of Offences” are used to determine whether an offence is triable by the Magistrate or the Court of Sessions.

However, even in cases where an offence is exclusively tried by Sessions Court, it cannot take cognizance of such an offence. According to Section 209 of the Code, A competent Magistrate may take cognizance of such an offence and then commit the case to the Court of Sessions for Trial.
Although Section 199(2) of the Code acts as an exception to this where a Court of Sessions may directly take cognizance of an offence without the case being committed to it in case of defamation of high dignitaries and public servants under certain circumstances.

According to Section 225 of the Code, in ever trial before a Court of Sessions, the prosecution will be conducted by a Public Prosecutor.[ii]

Trial of Warrant cases by Magistrates or Warrant Trial:

For trials of Warrant cases by Magistrates, there are three procedures prescribed;

  • Provisions applicable with respect to warrant cases instituted on Police Report: Sections 238-243 of the Code,
  • Provisions applicable with respect to warrant cases instituted otherwise than on a Police Report: Sections 244- 247 of the Code and
  • Provisions that are commonly applicable to all warrant cases instituted on a police report or otherwise: Sections 248-250 of the Code.

Cases instituted on Police report:

According to Section 238 of the Code, when in any warrant case instituted on a police report and the accused appears or is brought before the Magistrate, then he shall satisfy himself that he has supplied the accused with copies of all necessary documents like the Police report, FIR, statements of persons recorded by the Police during investigations etc,. as required under section 207 of the Act.

According to Section 239 of the Code, if the Magistrate upon examination of the charge-sheet filed and all other relevant documents sent, finds that the charge against the accused is groundless, then he may discharge the accused and record his reasons for doing so.

However, if upon examination he finds that there is a ground for presuming that the accused has committed an offence, he may proceed to frame charges in accordance with Section 240 of CrPC.

If the accused pleads guilty to the offence, then the Magistrate shall record the plea and use his discretion to convict him under section 241. If the accused doesn’t plead guilty then the Magistrate may fix a date for examination of witnesses and issue summons to witnesses according to Section 242.

Section 243 which deals with “Evidence for defence” is equally applicable to cases instituted on police report and otherwise.

Cases instituted otherwise than on a police report:

According to section 244, When, in any warrant-case instituted otherwise than on a police report, and the accused either appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. The Magistrate can also, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.

Upon taking all the evidence produced before him, if the Magistrate feels that no case has been made out against the accused, then he may discharge the accused after recording reasons for the same under section 245(1).

However, if the accused in not discharged then procedure according to section 246 shall be followed. The Magistrate shall proceed to frame charge under section 246 against the accused, the charge shall then be read and explained to the accused and then he has to be asked whether he pleads guilty or has any defence to make.

If the accused refuses to plead guilty or does not plead or claims to be tried then he shall be required to state whether he wants to cross examine any witnesses for the prosecution whose evidence has been taken. If the accused is ready to cross examine the witnesses, they shall be recalled for cross examination as well as re-examination if necessary.

Under section 247 of Cr. P. C. the accused shall be called upon to enter upon his defence and to produce his defence in accordance with section 243 as discussed earlier.

Common provisions regarding Conclusion of Trial:

Acquittal or Conviction of the Accused is under section 248 of the Code. After the close of the evidence for defence, and upon hearing the arguments, the Magistrate shall pronounce the judgement. If the Magistrates find the accused not guilty then they shall record an order of Acquittal under section 248(1). If the accused in found guilty, then he shall hear the accused on the question of sentence and then pass the sentence upon him according to section 248(2).

As per section 250 if in any case the accused is discharged or acquitted and the person upon whose complaint or information the accusation was made is present, the Magistrate may call upon him to show cause why he should not pay compensation to such accused or to each or any of such accused when there are more than one. If the complainant is absent then the summons may be issued to him to appear. Under section 250 [1] the accusation must be proved to have been made without reasonable cause. If there was no reasonable ground for making the accusation, then the Magistrate may make an order fixing the compensation to be paid to the accused.

The provisions of section 250 of the Code apply to summons cases as well as warrant cases.

Trial of Summons cases by Magistrates or Summons Trial:

A summons case is related to offences where the punishment is less than two years. In Summons Trial there is no “framing of a charge” and the Court issues a summons. Once the Accused appears acting upon the summons, the Court will then give him the particulars of the accusation called as “Notice”. Sections 251-259 of CrPC deal with Summons Trial.

According to section 251, if an accused in a summons case appears or is brought before the Magistrate, the particulars of the offence for which he is an accused shall be read out to him and he shall be asked if he wants to plead guilty or has any defence to make. If the accused pleads guilty, the Magistrate shall record the plea in nearly the same words as uttered by the accused and use his discretion to convict him under section 252 of the Code.[iii]

Section 253 deals with Conviction on plea of guilty in absence of accused in petty cases and acts as an exception to general rule which provides a simple procedure for disposing of petty cases without the presence of accused in court by post and messenger. By this provision discretion is given to the Magistrate to convict the accused. It also enables the pleader authorised by the accused to plead guilty on behalf of his client when offence is punishable only with fine.

Section 254 deals with a situation when the accused is not convicted and the Magistrate shall hear prosecution and take defence and shall also hear the accused and take his defence if any.

If the Magistrate upon hearing both sides, finds the accused not guilty, shall record an order of acquittal and if he is found guilty, then the Magistrate shall pass a sentence accordingly in accordance with section 255 of CrPC.

Summary Trials:

Chapter XXI of the Code of Criminal Procedure deals with Summary trials under Sections 260-265. The object of Summary trial is to deal with cases speedily.

The procedure for Summary trials is laid down in section 262 which prescribes the procedure in trial of summons case to be followed in a summary trial as well. The section also lays down that no sentence of imprisonment for a term exceeding three months shall be passed in summary trials.

Section 264 lays down that in every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the same shall be recorded.

Summary trials deal with cases relating to petty offences and hence the procedure for trial is not elaborate. There is no appeal in such a trial if a sentence of fine only not exceeding two hundred rupees has been awarded. However, there can be an application for revision to the High Court.

Edited by Pushpamrita Roy

Approved & Published – Sakshi Raje 

Reference

[i] R.V.Kelkar’s Lectures on Criminal Procedure, 6th Ed, 192.

[ii] Public prosecutor defined under Section 2 (u) of CrPC, 1973.

[iii]http://mja.gov.in/Site/Upload/GR/Title%20NO.123(As%20Per%20Workshop%20List%20title%20no123%20pdf).pdf

Categories
BLAWG

What is an execution warrant?

The Definition of an Execution Warrant:

An execution warrant is also known as the Death warrant or a Black warrant.

The warrant is a kind of notice issued by a court of law addressed to the officer in charge of the jail. This is the kind of warrant that puts the execution of a convict, after a court of law has sentenced him to death, in motion. It contains all particulars regarding the execution, for instance, the name of the convict who has been sentenced to death by a court of law, the day on which the death penalty was awarded and the Court that awarded the sentence etc…

Therefore, in simple words, an execution warrant is a notice issued by the court that has awarded the death penalty to a convict and the warrant is addressed to the officer in charge of the jail specifying the time and place of execution of the convict who has been sentenced.

The legal provision for an Execution warrant:

Schedule II of the Code of Criminal Procedure[i] contains a list of 56 forms dealing with Summons to the Accessed, Summons to the witness, warrant of arrest, bond and bail-bond and several others, under which Form 42 specifically deals with ‘Warrant of Execution of a Sentence of Death’

It reads as follows,

To the Officer in charge of the Jail at ______ (name of jail)

WHEREAS ______ (name of the prisoner), the _ (1st, 2nd, 3rd, as the case may be) Prisoner in case No. ___ (case number) of the Calendar for 20_ at the Session held before me on the _ day of ___ (month), 20_, has been by a warrant of the Court, dated the _ day of __, committed to your custody under sentence of death; and whereas the order of the High Court at ____ (place of the high court) confirming the said sentence has been received by this Court;

This is to authorise and require you to carry the said sentence into execution by causing the said ___ (name of the prisoner) to be hanged by the neck until he be dead, at _____ (time and place of execution), and to return this warrant to the Court with an endorsement certifying that the sentence has been executed.

Dated, this _ day of ___, 20__.

(Seal of the Court) (Signature)

When can a Black warrant be issued?

A black warrant proceeding can be initiated only after the death row convict has exhausted all of his available options of filing mercy petitions.[ii] In the case of Shabnam v. Union of India[iii], the Supreme Court concluded that execution warrants must not be issued in haste and due consideration must be taken before issuing it. They held that in the current case, the death warrants issued by the Sessions Judge without waiting for the exhaustion of remedies of the convicts was done in haste. The Supreme Court’s vacation bench, comprising of Justices AK Sikri and UU Lalit, quashed the warrants for execution of death sentence for the said reason.

Content of the execution warrant:

1. Name of the Jail where the convict is to be executed.

2. The name of the prisoner who has been sentenced and who is to be executed.

3. The case number where the death sentence was awarded.

4. The date on which the execution warrant is issued.

5. Place of the High Court that confirmed the death sentence.

6. The date, time and place of the execution.

7. Signature of the Judge issuing the sentence.

8. Seal of the Court that awarded the death penalty.

Instances where an execution warrants have been issued:

1. In 2012, a 23 year old paramedic student who is referred to as ‘Nirbhaya’ was brutally raped and horrendously assaulted in a moving bus by six men in South Delhi. One of the six men committed suicide while in jail and the minor among the accused was tried and convicted by a Juvenile Justice Board. The Delhi High Court issued execution warrants against the rest of the 4 convicts and directed that they be hanged in the Tihar Jail.[iv] Against the said order of the Delhi High Court, the convicted men had filed a curative plea before the Supreme Court in exercise of their last available legal remedy against the execution of the awarded death sentence. The 5 judge bench in the Supreme Court comprising of Justices N V Ramana, Arun Mishra, R F Nariman, R Banumathi and Ashok Bhushan dismissed the curative petitions filed by the convicts which brought them closer to the execution date of their death warrants.[v]

2. In the case of Surender Koli v. State of Uttar Pradesh[vi], an execution warrant was issued by the Trial Court against the infamous Surender Koli and Moninder Singh Pandher, the convicts in the Nithari Killings for the murder of Rimpa Halder, a 14 year old girl mercilessly raped and murdered. The Allahabad High Court affirmed the death sentence awarded to Koli while acquitted Moninder Singh Pandher. Surender Koli then filed a mercy petition before the Supreme Court which was rejected on the 15th of February 2011. He later filed a mercy petition before the President which was also rejected on the 27th July 2014.[vii] The Supreme Court confirmed his death sentence taking into consideration the brutality of his crimes and appointed an execution date.[viii]

Conclusion:

Therefore, an Execution warrant is issued when a convict needs to be executed and Form 42 in the Second Schedule of the Code of Criminal Procedure, it is specified that such a convict shall be ‘hanged till death’. An Execution warrant or a black warrant may only be issued after the convict has exhausted all of their available legal remedies against the death sentence awarded to them. Once all the legal remedies have been exhausted, the Court of law may direct the jail authorities to continue with the execution by way of issuing an Execution warrant.

Edited by Pushpamrita Roy

Approved & Published – Sakshi Raje 

Reference

[i]Code of Criminal Procedure, Schedule II, Form 42.

[ii]https://www.indiatoday.in/information/story/what-is-a-death-warrant-or-a-black-warrant-1634751-2020-01-07

[iii]Shabnam vs Union Of India And Anr (2015 SCC OnLine SC 484)

[iv]Mukesh v. State (NCT of Delhi) [(2017) 3 SCC 719]

[v]https://www.scconline.com/blog/post/2020/01/14/nirbhaya-case-supreme-court-dismisses-curative-pleas-of-2-death-row-convicts/

[vi]Surender Koli v. State of Uttar Pradesh (2011) 4 SCC 80

[vii]https://www.scconline.com/blog/post/2014/09/08/death-warrant-against-surinder-koli-convict-in-the-infernal-nithari-killings-case-stayed/

[viii]Surender Koli v. State of Uttar Pradesh, Review Petition (Criminal) No. 395 of 2014