An Endeavour for Learning and Excellence - Vol- IX Part-7 - objective of ...

Vol- IX
Part-7

             An Endeavour for Learning and
                     Excellence

           Aano Bhadra Krtavo Yantu Vishwatah.(RIG VEDAM)
          "Let Noble Thoughts Come To Me From All Directions"

2

SOMASUNDARAM @ SOMU VS STATE REP. BY THE DEPUTY COMMISSIONER OF POLICE,
03 Jun 2020- 2020 0 Supreme(SC) 388; (THREE JUDGE BENCH)
Abetment of an offence being an offence, the abetment of such abetment is also an offence under
Explanation IV. Explanation V makes it clear that it is not necessary to the commission of offence of
abetment by conspiracy that the abettor should concert the offence with the person who commits and
it is sufficient if he engages in the conspiracy in pursuance of which the offence is committed.
As far as the last part of the Explanation to Section 109 of the IPC is concerned, which speaks about
an act or offence being committed in consequence of abetment being committed with the aid which
constitutes abetment, it is relatable to thirdly under Section 107 of the IPC.
In order to attract Section 109 of the IPC, the act abetted must be committed in consequence of the
abetment. Sections 115 and 116 of the IPC deal with punishments for abetment of offences when the
offence is not committed in consequence of the abetment and where no express provision is made in
the IPC for the punishment of such abetment.
As laid down by this Court, every material circumstance against the accused need not be
independently confirmed. Corroboration must be such that it renders the testimony of the approver
believable in the facts and circumstances of each case. The testimony of one accomplice cannot be,
ordinarily, be supported by the testimony of another approver. We have used the word ‘ordinarily’
inspired by the statement of the law in paragraph-4 in K. Hashim (supra) wherein in this Court, did
contemplate special and extraordinary cases where the principle embedded in Section 133 would
literally apply. In other words, in the common run of cases, the rule of prudence which has evolved
into a principle of law is that an accomplice, to be believed, he must be corroborated in material
particulars of his testimony. The evidence which is used to corroborate an accomplice need not be a
direct evidence and can be in the form of circumstantial evidence.
ACCOMPLICE AND APPROVER

3
An accomplice is in many cases, pardoned and he becomes what is known as an approver. An
elaborate procedure for making a person an approver, has been set out in Section 306 of the CrPC.
Briefly, the person is proposed as an approver. The exercise is undertaken before the competent
Magistrate. His evidence is recorded. He receives pardon in exchange for the undertaking that he will
give an unvarnished version of the events in which he is a participant in the crime. He would expose
himself to proceedings under Section
308 of the CrPC. Section 308 contemplates that if such person has not complied with the condition on
which the tender of pardon was given either by wilfully concealing anything essential or by giving
false evidence, he can be put on trial for the offence in respect to which the pardon was so tendered
or for any other offence of which he appears to be a guilty in connection with the same matters. This
is besides the liability to be proceeded against for the offence of perjury. Sub-section (2) of Section
308 declares that any statement which is given by the person accepting the tender of pardon and
recorded under Section 164 and Section 306 can be used against him as evidence in the trial under
Section 308(1) of the CrPC. An accomplice or an approver are competent witnesses. An approver is
an accomplice, who has received pardon within the meaning of Section 306. We would hold, that as
between an accomplice and an approver, the latter would be more beholden to the version he has
given having regard to the adverse consequences which await him as spelt out in Section 308 of the
CrPC. as explained by us. It is also settled principle that the competency of an accomplice is not
impaired, though, he could have been tried jointly with the accused and instead of so being tried, he
has been made a witness for the prosecution.
As the defence had no opportunity to cross-examine the witnesses whose statements are recorded
under Section 164 Cr.P.C., such statements cannot be treated as substantive evidence.
Section 364 of the IPC, more graver than Section 365 of the IPC, occurs when abduction, inter alia, is
done with the intention to commit murder or that he is so disposed of so as to put the abducted
person in danger of being murdered. Section 365 of the IPC is attracted when the abduction takes
place to cause the abducted person to be secretly and wrongfully confined.
It is true that in a given case, a person may be abducted to be secretly and wrongfully confined and
also to commit murder. Such a situation may attract both Sections 364 and 365 of the IPC.

Mustak @ Kanio Ahmed Shaikh VS State of Gujarat, 18 Jun 2020; 2020 0 Supreme(SC) 414;
minor discrepancies in evidence and inability to recall details of the description of houses, roads and
streets after several years, do not vitiate the evidence of recovery itself.
We do not find any such error in the findings of the Session Court to warrant interference. When there
is a time gap between an occurrence and the trial it is impossible for police/Investigating Officer to
recall minute details. Nor is it possible for a surgeon performing an operation to remove a bullet from
the body of a patient to throw light on the chain of custody of the bullet, after it was made over to the
attending Nurse. There was sufficient incriminating evidence for conviction of the Appellant.

RANA NAHID @ RESHMA @ SANA VS SAHIDUL HAQ CHISTI, 18 Jun 2020; 2020 0
Supreme(SC) 415;
Muslim Women (Protection of Rights on Divorce) Act, 1986 does not deviate itself from the purpose,
object and scope of the provisions of maintenance under Criminal Procedure Code. The provisions of
the Act are not inconsistent with the provisions of Chapter IX of the Code. The provision of this
enactment provides remedies beneficial to the Muslim women divorcee by making the former
husband liable to provide the divorced woman with reasonable and fair provision in addition to
providing maintenance and where the husband fails to comply with the order without sufficient cause,
the Magistrate may issue warrant for levying the amount of maintenance and may sentence him to
imprisonment for a term which may extend to one year. The near relatives of the woman are also
made liable under Section 4 of the Act. In case, the relatives are not in a position to pay her, the State
Wakf Board is also made liable to provide maintenance. While the Criminal Procedure Code provides
the relief of maintenance only, the Act of 1986 furnishes to divorced woman, additionally, a
reasonable and fair provision, the relief of recovery of dower and return of marital gifts.
Though divorced Muslim women are excluded from the purview of Section 125 of the Cr.PC by
reason of the 1986 Act for Muslim Women, Parliament has in its wisdom considered it necessary to
make provisions for expeditious orders in applications for maintenance filed by divorced Muslim

4
women. It is with this object in mind that Muslim women have been given the liberty of
approaching the Magistrate and the Magistrate is required to make an order within one month from
the date of filing of the application and the order of the Magistrate is executable in the same manner
for levying fines under the Cr.PC. Violation of an order of the Magistrate entails sentence of
imprisonment for a term which might extend to one year or until payment if sooner made, subject to
such person being heard in defence and the sentence being imposed according to the provisions of
the Cr.PC.

S. KASI VS STATE THROUGH THE INSPECTOR OF POLICE SAMAYNALLUR POLICE STATION
MADURAI DISTRICT, 19 Jun 2020 ; 2020 0 Supreme(SC) 417;
We may further notice that learned Single Judge in the impugned judgment had not only breached
the judicial discipline but has also referred to an observation made by learned Single Judge in Settu
versus The State as uncharitable. All Courts including the High Courts and the Supreme Court have
to follow a principle of Comity of Courts. A Bench whether coordinate or Larger, has to refrain from
making any uncharitable observation on a decision even though delivered by a Bench of a lesser
coram. A Bench sitting in a Larger coram may be right in overturning a judgment on a question of law,
which jurisdiction a Judge sitting in a coordinate Bench does not have. In any case, a Judge sitting in
a coordinate Bench or a Larger Bench has no business to make any adverse comment or
uncharitable remark on any other judgment. We strongly disapprove the course adopted by the
learned Single Judge in the impugned judgment.
Rajasthan High Court had occasion to consider Section 167 as well as the order of this Court dated
23.03.2020 passed in Suo Moto W.P(C)No.3 of 2020 and Rajasthan High Court has also come to the
same conclusion that the order of this Court dated 23.03.2020 has no consequence on the right,
which accrues to an accused on non-filing of charge sheet within time as prescribed under Section
167 Cr.P.C. Rajasthan High Court in S.B. Criminal Revision Petition No. 355 of 2020 Pankaj Vs.
State decided on 22.05.2020 has also followed the judgment of learned Single Judge of the Madras
High Court in Settu versus The State (supra) and has held that accused was entitled for grant of the
default bail. Uttarakhand High Court in First Bail Application No.511 of 2020 Vivek Sharma Vs. State
of Uttarakhand in its judgment dated 12.05.2020 has after considering the judgment of this Court
dated 23.03.2020 passed in Suo Moto W.P(C)No.3 of 2020 has taken the view that the order of this
Court does not cover police investigation. We approve the above view taken by learned Single Judge
of Madras High court in Settu versus The State (supra) as well as the by the Kerala High Court,
Rajasthan High Court and Uttarakhand High Court noticed above.

Jinofer Kawasji Bhujwala VS State of Gujarat, 19 Jun 2020; 2020 0 Supreme(SC) 418;
Obviously, the period of six months within which the High Court hoped the trial to commence, has
expired as on date. The appellant, who is admittedly 62 years of age has already spent nearly a year
in judicial custody. A period of nine months has passed from the date of filing of the charge sheet.
Though the learned Solicitor General contended that the sanction to prosecute has already been
issued as against Government Officials, the fact remains that charges have not been framed and the
trial has not commenced as yet.
Though much is said about the tempering of witnesses, it is seen from the material on record that the
prosecution rests mainly on documents. In any case, the prosecution is not remedyless, if a person
enlarged on bail, indulges in certain activities.

IN RE : THE PROPER TREATMENT OF COVID 19 PATIENTS AND DIGNIFIED HANDLING OF
DEAD BODIES IN THE HOSPITALS ETC. VS ., 19 Jun 2020’ 2020 0 Supreme(SC) 420;
We with the object of continuous supervision and monitoring of government hospitals, Covid
dedicated hospitals and other hospitals taking care of covid management issue following directions
Nos.(I) to (IV):-
(I) The Ministry of Health and Family Welfare, Union of India, shall constitute Expert Committees
consisting of:
       (a) Senior Doctors from Central Government hospitals in Delhi,
       (b) Doctors from GNCTD hospitals or other hospitals of Delhi Government,
       (c) Doctors from All India Institute of Medical Sciences,

5
        (d) Responsible officer from Ministry of Health and Family Welfare.
(II) The Expert Committee shall inspect, supervise and issue necessary directions to all Government
hospitals, Covid hospitals and other hospitals in NCT of Delhi taking care of Covid patients; The
Expert Committees shall ensure that at least one visit in each hospital be done weekly.
(III) The above team may in addition to normal inspection shall also conduct surprise visits to assess
he preparedness of the hospitals. The expert team as indicated above after visiting may issue
necessary instructions for improvement to the hospital concerned and also forward its report to the
Government of NCT of Delhi and the Union of India, Ministry of Health and Family Welfare.
(IV) We further direct that all States shall also constitute an expert team of Doctors and other experts
for inspection, supervision and guidance of Government hospitals and other hospitals dedicated to
Covid-19 in each State who may inspect, supervise the hospitals in the State and issue necessary
directions for the improvement to the concerned hospital and report to the Government. Chief
Secretary of each State shall ensure that such Committees are immediately constituted and start their
works within a period of seven days.
(V) Footage from the CCTV Cameras shall be made available by the hospitals in NCT of Delhi to the
inspecting/supervising expert team or to any other authority or body as per directions of the Union of
India, Ministry of Health and Family Welfare for screening the footage and issuing necessary
directions thereon.
(VI) In Government hospitals of GNCT, Delhi which are Covid dedicated hospitals, where CCTV
cameras have not been installed, steps shall be taken to install CCTV Cameras in the wards.
(VII) The Chief Secretaries of other States shall also take steps regarding installation of CCTV
Cameras in Covid dedicated hospitals where Covid patients are taking treatment to facilitate the
management of such patients and for the screening of the footage by designated authorities or
bodies so that remedial action may be suggested and ensured.
(VIII) All Covid-dedicated hospitals shall permit one willing attendant of the patient in the hospital
premise, who can remain in an area earmarked by the hospital.
(IX) All Covid dedicated hospitals shall create a helpdesk accessible physically as well as by
telephone from where well being of patients admitted in the hospitals can be enquired.
(X) The Union of India, Ministry of Home Affairs may issue appropriate directions in exercise of power
under Disaster Management Act, 2005 to all States/Union Territories to uniformly follow the revised
discharge policy dated 08.05.2020 with regard to discharge of different categories of patients as
categorised in the revised discharge policy.
(XI) The Union of India may issue appropriate guidelines/directions to all the States/Union Territories
with regard to prescribing reasonable rates of various Covid related facilities/test etc., which need to
be uniformly followed by all concerned. In case, with regard to any particular State/Union Territory,
there is any difference, the same may be specifically noticed and directed accordingly.
the States and all concerned shall supply a copy of the report of the patient to him or his relatives and
the hospital.

Insisting for independent evidence and not relying on Circumstantial Evidence
sufficient in case of Kidnap would be counter productive.
In Sucha Singh v. State of Punjab, AIR 2001 SC 1436 turned down the request of the
appellant to reconsider the ratio laid down in State of W.B. V. Mir Mohd. Omar (supra).
In the said case, the conviction appears to have been only under Section 302 though
read with Section 34 of the IPC. It is pertinent to note what this Court held speaking
through Justice K.T. Thomas:
      “21. We are mindful of what is frequently happening during these days. Persons
      are kidnapped in the sight of others and are forcibly taken out of the sight of all
      others and later the kidnapped are killed. If a legal principle is to be laid down
      that for the murder of such kidnapped there should necessarily be independent

6
      evidence     apart      from      the circumstances enumerated above, we
      would be providing a safe jurisprudence for protecting such criminal activities.
      India cannot now afford to lay down any such legal principle insulating the
      marauders of their activities of killing kidnapped innocents outside the ken of
      others.”

THE PROTEST PETITION HAS TO SATISFY THE INGREDIENTS OF COMPLAINT
SUBHASH SAHEBRAO DESHMUKH VS SATISH ATMARAM TALEKAR, 18 Jun
2020; 2020 0 Supreme(SC) 410;
In B. Chandrika vs. Santhosh, (2014) 13 SCC 699, this Court observed as follows:
      "5. The power of the Magistrate to take cognizance of an offence on a complaint
      or a protest petition on the same or similar allegations even after accepting the
      final report, cannot be disputed. It is settled law that when a complaint is filed and
      sent to police under Section 156(3) for investigation and then a protest petition is
      filed, the Magistrate after accepting the final report of the police under Section
      173 and discharging the accused persons has the power to deal with the protest
      petition. However, the protest petition has to satisfy the ingredients of complaint
      before the Magistrate takes cognizance under Section 190(1)(a) CrPC."

Art 14 applies to Substantial as well as procedural laws
In Meenakshi Mills vs. Vishvanatha Sastri reported in AIR 1955 SC 13, a Constitution
Bench of this Court held:
6. . Article 14 of this Part guarantees to all persons the right of equality before the law
and equal protection of the laws within the territory of India. This article not only
guarantees equal protection as regards substantive laws but procedural laws also
come within its ambit. The implication of the article is that all litigants similarly situated
are entitled to avail themselves of the same procedural rights for relief, and for defence
with like protection and without discrimination. The procedural provisions of Act 30 of
1947 had therefore to stand the challenge of Article 14 and could only be upheld
provided they withstood that challenge.

Seniority list should be prepared on merit and not on roster points:
L.Rani Vs State of Telangana; on 09.09.2019;
https://indiankanoon.org/doc/108925790/;
However, official respondents are directed to prepare seniority list of Junior
Stenographers basing on the merit but not on the roster points and by following Rule
33 (b) of the Rules and the ratio laid down by the Apex Court and this Court in the
judgments cited supra, and the allocation shall be made in the said order of seniority
as available on 01.06.2014.

    GOVERNMENT OF ANDHRA PRADESH- Public Services – Prosecutions
     Department – Promotion of Additional Public Prosecutors Grade-I/ Deputy
     Directors of Prosecutions to the category of Public Prosecutors/Joint Directors of
     Prosecutions who are included in the panel year 2019-20 – Postings - Orders –
     Issued- G.O.MS.No. 71 HOME (COURTS.A) DEPARTMENT Dated: 24-06-2020

7
   GOVERNMENT          OF     ANDHRA PRADESH- HOME DEPARTMENT – BE
    2020-21 (Vote on Account) – Prosecutions - Sanction of Rs.7,78,00,000/- as
    additional funds - Administrative Sanction –Accorded- G.O.RT.No. 516 HOME
    (BUDGET) DEPARTMENT Dated: 03-06-2020

   GOVERNMENT OF ANDHRA PRADESH- Public Services - Prosecutions
    Department – Sri BVA.Narasimha Murthy, Additional Public Prosecutor Grade-II,
    working as Legal Advisor-cum-Special Public Prosecutor O/o. the Director
    General, Anti-Corruption Bureau, Andhra Pradesh – Repatriation – and posted
    as Additional Public Prosecutor Grade-II, Assistant Sessions Judge Court,
    Yelamanchili, Visakhapatnam District - Orders – Issued- G.O.RT.No. 623 HOME
    (COURTS.A) DEPARTMENT, Dated: 24-06-2020
   GOVERNMENT OF ANDHRA PRADESH- Public Services - Prosecution
    Department – Smt.K.E.Swarnalatha Bhanu, Additional Public Prosecutor Grade-
    II, working as Legal Advisor-cum-Special Public Prosecutor, O/o. the
    Commissioner of Prohibition & Excise, Andhra Pradesh, Vijayawada –
    Repatriation – Posted as Additional Public Prosecutor Grade-II in the Court of
    Principal Assistant Sessions Judge, Narasaraopet, Guntur District - Orders –
    Issued- G.O.RT.No. 630 HOME (COURTS.A) DEPARTMENT Dated: 24-06-
    2020

THE COPIES OF THESE CIRCULARS, GAZETTES MENTIONED IN NEWS
SECTION OF THIS LEAFLET ARE AVAILABLE IN OUR “PROSECUTION
REPLENISH” CHANNEL IN TELEGRAM APP. http://t.me/prosecutionreplenish

                                              The Perfect Son.
                    A: I have the perfect son.
                    B: Does he smoke?
                    A: No, he doesn't.
                    B: Does he drink whiskey?
                    A: No, he doesn't.
                    B: Does he ever come home late?
                    A: No, he doesn't.
                    B: I guess you really do have the perfect son. How old is he?
                    A: He will be six months old next Wednesday.

While due care is taken while preparing this information. The patrons are requested to verify and bring
it to the notice of the concerned regarding any misprint or errors immediately, so as to bring it to the
notice of all patrons. Needless to add that no responsibility for any result arising out of the said error
                     shall be attributable to the publisher as the same is inadvertent.

     The Prosecution Replenish, 4-235, Gita Nagar,Malkajgiri, Hyderabad-500047
              : 9848844936; e-mail:- prosecutionreplenish@gmail.com
     telegram app : http://t.me/prosecutionreplenish Website : prosecutionreplenish.com

8