1. Balbir Singh @ Rinku v. Yashwant Pirta
Case No.: Criminal. MMO No. 313 of 2018
Date Of Pronouncing Judgment: 26th November 2018
Coram: Hon’ble Mr. Tarlok Singh Chauhan, J.
Judgment By: Hon’ble Mr. Tarlok Singh Chauhan, J.
PRINCIPLES OF LAW DISCUSSED:
- Code of Criminal Procedure: S.82: provisions u/S. 82 were enacted to secure the presence of the accused and once the said purpose is achieved, even if the property is attached, then the proceedings stand withdrawn.
- Securing the attendance of an absconding accused, is a matter between the State and the accused. Complainant should not ordinarily derive any benefit therefrom.
- 482 – Petition not maintainable – The accused should produce himself before Ld. Trial court for cancellation of proclamation.
DECISION & DISCUSSION:
Moot question in this case was whether the proclamation u/s. 82 of Cr.P.C. can be quashed by the High Court under S.482 proceedings?
The Hon’ble Court opined,
“It is more than settled that the aforesaid provisions i.e. Section 82 were enacted to secure the presence of the accused and once the said purpose is achieved, even if the property is attached, then the proceedings stand withdrawn.”
Reliance was made on SC judgment in Vimlaben Ajitbhai Patel vs. Vatslaben Ashokbhai Patel and others[1] where it was held,
“32. The provisions contained in Section 82 of the Code of Criminal Procedure were put on the statute book for certain purpose. It was enacted to secure the presence of the accused. Once the said purpose is achieved, the attachment shall be withdrawn. Even the property which was attached, should be restored. The provisions of the Code of Criminal Procedure do not warrant sale of the property despite the fact that the absconding accused had surrendered and obtained bail. Once he surrenders before the Court and the Standing Warrants cancelled, he is no longer an absconder. The purpose of attaching the property comes to an end. It is to be released subject to the provisions of the Code. Securing the attendance of an absconding accused, is a matter between the State and the accused. Complainant should not ordinarily derive any benefit therefrom. If the property is to be sold, it vests with the State subject to any order passed under Section 85 of the Code. It cannot be a subject matter of execution of a decree, far less for executing the decree of a third party, who had no right, title or interest thereon.”
Principle laid down:
“It is absolutely clear that instead of invoking the jurisdiction of this Court under Section 482 Cr.P.C, the petitioner was required to surrender before the learned trial Court and obtain bail. Once he had surrendered then obviously the standing warrants would be cancelled and he no longer would be an absconder. Therefore S. 482 petition is not maintainable.”
2. Baldev Singh v. State of H.P.
Case No.: Criminal Appeal No. 96 of 2016)
Date of Reserving Judgment: 21st November 2018.
Date of Pronouncing Judgment: 26th November 2018
Coram: Hon’ble Mr. Tarlok Singh Chauhan, J.
Judgment By: Hon’ble Mr. Tarlok Singh Chauhan, J.
PRINCIPLES OF LAW DISCUSSED:
- Indian Penal Code: – S.376: An inference as to consent can be drawn if only based on evidence or probabilities of the case. “Consent” is also stated to be an act of reason coupled with deliberation.
- Statement of prosecutrix cannot be universally and mechanically applied to the facts of every case of sexual assault, as in its opinion, in such cases, the possibility of false implication can’t also be ruled-out.
- Mere delay in lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact.
DECISION & DISCUSSION:
Judgment first deals with the law on the point of “consent” u/S.375 of IPC. consent has been discussed by the Apex Court in Kaini Rajan vs. State of Kerala[2], as follows:
“12. Section 375 IPC defines the expression “rape”, which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her on any person in whom she is interested in fear of death or of hurt. The expression “against her will” means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. “Consent” is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of.”
Further, In State of Punjab Vs. Gurmeet Singh and others[3], the Apex Court has held that, the own statement of the prosecutrix if inspires confidence is sufficient to bring the guilt home to the accused. However, later in Gurmeet Singh’s case was diluted in Ranjit Hazarika Vs. State of Assam[4], where it was held that, statement of prosecutrix cannot be universally and mechanically applied to the facts of every case of sexual assault, as in its opinion, in such cases, the possibility of false implication can’t also be ruled-out. Similar was the view of the matter taken again by the apex Court in Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P. and another[5].
Further on the point of delay in lodging in F.I.R. HC relied upon following judgments,
In Pandurang and others vs. State of Hyderabad[6] & in Ramdas and others vs. State of Maharashtra[7], it was held,
“mere delay in lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact.”
3. Sachin & Anr. State of Himachal Pradesh
Case No.: (Criminal Revision No. 294 of 2018)
Date Of Pronouncing Judgment: 26th November 2018
Coram: Hon’ble Mr. Tarlok Singh Chauhan, J.
Judgment By: Hon’ble Mr. Tarlok Singh Chauhan, J.
PRINCIPLES OF LAW DISCUSSED:
- Narcotic Drugs and Psychotropic Substances Act,1985 (for short ‘NDPS Act’): u/S. 20 and 29: Possession – Conscious- Direct/Constructive Possession.
- The term “possession” – two elements. First, it refers to the corpus or the physical control and the Second, it refers to the animus or intent which has reference to exercise of the said control.
- This Court prima facie is required to see – the requisite degree of control, even if – narcotic substance, not held to be within the physical control of the petitioners at that moment.
DECISION & DISCUSSION:
The Hon’ble HC has discussed various judgments of Hon’ble Supreme Court, which has dealt with the expression- “Possession”.
In Megh Singh vs. State of Punjab[8], it was held by the Hon’ble Supreme Court that in order to make the possession illicit, there must be a conscious possession. The expression “possession” is polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible to work out a completely logical and precise definition of “possession” uniformly applicable to all situations in the context of all statutes. Possession in a given case need not be physical possession but can be constructive. It was further held that the word “conscious” means awareness of a particular fact. It is a state of mind which is deliberate and intended. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.
In State of Punjab vs. Hari Singh and others[9], the Hon’ble Supreme Court held,
“unless the possession was coupled with requisite mental elements i.e. conscious possession and not mere custody without awareness of the nature of such possession, provisions of Section 15 of the Act are not attracted.”
In Mohan Lal vs. State of Rajasthan[10],the Hon’ble Supreme Court while dealing with a case under Section 9 of the Opium Act as well as Section 18 of the NDPS Act held,
“The term “possession” ordinarily consists of two elements. First, it refers to the corpus or the physical control and the second, it refers to the animus or intent which has reference to exercise of the said control…
…The word “possession” refers to a mental state as is noticeable from the language employed in Section 35 of the NDPS Act. It includes knowledge of a fact. That apart, Section 35 raises a presumption as to knowledge and culpable mental state from the possession of illicit articles. The expression “possess or possessed” is often used in connection with statutory offences of being in possession of prohibited drugs and contraband substances. Conscious or mental state of possession is necessary and that is the reason for enacting Section 35 of the NDPS Act, 1985.”
Principle laid down:
“This Court prima facie is required to see is the requisite degree of control, even if, the narcotic substance is not held to be within the physical control of the petitioners at that moment.”
[1] (2008) 4 SCC 649.
[2] JT 2013 (12) SC 538
[3] AIR 1996 SC 1393.
[4] (1998) 8 SCC 635.
[5] (2003) 3 SCC 175.
[6] AIR 1956 SC 216.
[7] AIR 2007 SC 155.
[8] AIR 2003 SC 3184.
[9] (2009) 4 SCC 200.
[10] (2015) 6 SCC 222.
About the Author: Advait is a 2016-19 Batch student at ILS Law College, Pune.
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