Criminal Lawyer V.K.Singh

08/05/2023

when Consent is valid as per Law in consensual s*x or false promise of marriage.

How is “consent” defined? Section 90 IPC defines consent known to be given under “fear or misconception” which reads as under:
“90.Consent known to be given under fear or misconception.—A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent
Section 375 IPC defines the expression “r**e”, 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. Section 90 IPC refers to the expression “consent”. Section 90, though, does not define “consent”, but describes what is not consent. “Consent”, for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. (See State of H.P. v. Mango Ram (2000) 7 SCC 224”
In the case of D###### v. State of Haryana (2013) 7 SCC 675, this Court observed and held in paragraphs 21 and 24 as under:
24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The “failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term “misconception of fact”, the fact must have an immediate relevance”. Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her.” 10.3 In the case of Yedla Srinivasa Rao v. State of A.P.
was given in consequence of such fear or misconception;” (emphasis supplied) Thus, if consent is given by the prosecutrix under a misconception of fact, it is vitiated.

02/01/2023

R**e On False Marriage Promise not maintainable Even After Knowing About Man’s Marriage.

The Kerala High Court on Thursday reiterated that if a man retracts his promise to marry a woman, the consensual s*x they have had will not constitute r**e unless it is established that the consent was obtained by him by giving false promise of marriage with no intention of adhering to it, and that promise made was false to his knowledge.

Quashing a r**e case against a 33-year-old man, Justice Kauser Edappagath said the relationship between the accused and the complainant appears to have been purely consensual in nature. There is no allegation that when he promised to marry her, it was done in bad faith or with the intention to deceive her, said the court.
“The admitted fact that the 4th respondent [complainant] is having a relationship with the petitioner since 2010 and she continued the relationship knowing about his marriage from 2013 onwards would nullify the story regarding the s*xual in*******se on the false pretext of marrying her,”

“The alleged s*x can only be termed as one on account of love and passion for the petitioner and not on account of misrepresentation made to her by the petitioner. Therefore, even if the facts set out in the FIS [First Information Statement] are accepted in totality, no offence u/s 375 of IPC is not made out.

Case Title: Sreekanth Sasidharan v. State of Kerala & Ors. Citation: 2022 LiveLaw (Ker) 514

12/09/2021

Safeguards against extradition of a fugitive criminal in India as per Extradition Act.

What do you mean by Extradition?

The Hon’ble Supreme Court of India has stated “Extradition is the delivery on the part of one state to another of those whom it is desired to deal with for crimes of which they have been accused or convicted and justifiable in the courts of the other state”. It is a subject of International law where one jurisdiction delivers a person accused or convicted of committing a crime in another jurisdiction over the new law enforcement as a result of any mutual agreement or treaty signed between them.

It is a cooperative law enforcement process between the two jurisdictions and is largely dependent on the arrangements and understanding made between them.

An extradition request for an accused can be initiated in case of under-investigation under trial and convicted criminals. Besides the legal aspects of the process, extradition also involves physical transfer of the custody of the person being extradited of the legal authority of requesting jurisdiction.

Through the process of the extradition, one sovereign jurisdiction typically makes a formal request to another sovereign jurisdiction (requesting state). If the fugitive is found within the territory of the requesting state arrest the fugitive and subject him /her to its extradition process. The process of extradition procedures to which the fugitive will be subjected to and dependent on the law and practice of the requested state.

The consensus in international law is that normally a state does not have any obligation to surrender an alleged criminal to a foreign state because one foreign state because the principle of sovereignty is that every state has legal authority over the people within its borders. Such an absence of international obligation and the desire for the right to demand such criminals from other countries have caused most of the countries to enter such agreements with the other countries.

2. What are Extradition Treaties or Agreements?

Section 2(d) of the Indian Extradition Act 1962 defines an” Extradition Treaty as a Treaty, Arrangement/ Agreement made by India with a foreign state relating to the extradition of fugitive criminals. Traditionally speaking, most of the extradition treaties are bilateral in nature. However, most of them include the following five principles which have been endorsed by many judicial pronouncements.

1. Extradition applies only with respect to offenses clearly stipulated as such in the treaty.

2. The principle of dual criminality requires that the offenses for which the extradition has been sought to be an offense under the national laws of both the jurisdictions under the extradition.

3. The requested country must be satisfied that there is a prima facie case made out against the accused /offender.

4. The extradited person must be preceded against only the offense for which his extradition has been requested.

5. He must be accorded a fair trial taking care of the principles of natural justice

Section 31 of the Act provides the safeguards against extradition of a fugitive criminal. The said section reads as follows:

“31. Restrictions on surrender.― (1) A fugitive criminal shall not be surrendered or returned to a foreign State

(a) if the offence in respect of which his surrender is sought is of a political character or if he proves to the satisfaction of the magistrate or court before whom he may be produced or of the Central Government that the requisition or warrant for his surrender has, in fact, been made with a view to try or punish him for an offence of a political character;

(b) if prosecution for the offence in respect of which his surrender is sought is according to the law of that State barred by time;

(c) unless provision is made by that law of the foreign State or in the extradition treaty with the foreign State that the fugitive criminal shall not be determined or tried in that State for an offence other than–

(i) the extradition offence in relation to which he is to be surrendered or returned;

(ii) any lesser offence disclosed by the facts proved for the purposes of securing his surrender or return other than an offence in relation to which an order for his surrender or return could not be lawfully made; or

(iii) the offence in respect of which the Central Government has given its consent;

(d) if he has been accused of some offence in India, not being the offence for which his surrender or return is sought, or is undergoing sentence under any conviction in India until after he has been discharged, whether by acquittal or on expiration of his sentence or otherwise;

(e) until after the expiration of fifteen days from the date of his being committed to prison by the magistrate. (2) For the purposes of sub-section (1), the offence specified in the Schedule shall not be regarded as offences of a political character.

(3) The Central Government having regard to the extradition treaty made by India with any foreign State may, by notified order, add or omit any offence from the list given in the Schedule.”

49. Section 34B which falls in Chapter-V provides for provisional arrest. The same reads as follows:

“34B. Provisional arrest. (1) On receipt of an urgent request from a foreign State for the immediate arrest of a fugitive criminal, the Central Government may request the Magistrate having competent jurisdiction to issue a provisional warrant for the arrest of such fugitive criminal.

(2) A fugitive criminal arrested under sub-section (1) shall be discharged upon the expiration of sixty days from the date of his arrest if no request for his surrender or return is received within the said period.”

50. Section 35 provides that every notified order made or notification issued under the Act shall as soon as may be after it is made or issued, be laid before each House of Parliament.

51. Section 36 contains the rule making power of the Central Government to carry out the purpose of the Act. Section 36(2) without prejudice to the generality of the rule making power contained in sub-Section(1), particularises the matters in respect whereof rules may be made. Section 37 is the repeal and saving provision.

52. The Schedule to the Act referred to in Section 31(2) enlists the offences which are not to be regarded as offences of Political Character.

53. Extradition of a fugitive criminal to a Foreign State is an executive decision of the State, taken in exercise of the Sovereign Power of the State. Extradition is the surrender of a criminal fugitive by one State to another in which the criminal fugitive is liable to be punished, or has been convicted. When a requisition for surrender of a fugitive criminal is received from a Foreign State – whether or not it is a Treaty State, the rights of the fugitive criminal to be subjected to a Magisterial inquiry are preserved, wherein the Magistrate shall examine, inter-alia, whether the fugitive criminal is accused or convicted of an offence of a political character, and whether the offence is, or is not, an extradition offence. He shall conduct the inquiry in terms of Section 7 and 31 of the Act. The law of extradition is based on the broad principle that it is in the interests of all nations that crimes recognized as such by the civilized world should not go unpunished (See, Definition contained in Delhi High Court Rules, Volume III Chapter 16 : Extradition and Foreign Jurisdiction (Criminal Courts)). Extradition of A fugitive criminal may be undertaken in pursuance of a signed and ratified treaty, or even when such a treaty does not exist. The signing of an extradition treaty, or any other treaty between two or more sovereign nation States is an executive act, whereas, the act of ratification i.e., implementation of such a treaty, is a legislative function. It is the municipal law of the State which lays down the procedure to be followed, inter alia, for the purpose of conduct of the inquiry. The Act is that municipal law in India. The purpose of such an inquiry – which is not a trial, is not to decide the innocence or guilt of the fugitive criminal. The main purpose of the enquiry is to determine whether there is a prima facie case, or reasonable ground which warrants the fugitive criminal being sent to the demanding State. Merely because the Act provides for issuance of warrant for arrest of the fugitive criminal in respect of whom an Order for conduct of a Magisterial inquiry is issued under Section 6 of the Act, and the criminal fugitive is taken into custody, is no reason to consider the Act – or any provision thereof as a penal statute. The arrest of the fugitive criminal is not punitive. The whole purpose is to apprehend or prevent the further escape of the person – who is accused of certain offences and/ or is convicted and wanted by the requesting State for trial or for undergoing the sentence passed or to be passed. (See Nina Pillai, SMT v. Union of India, 1997 Cr L.J. 2358]

What do you mean by Extradition? The Hon’ble Supreme Court of India has stated “Extradition is the delivery on the part of one state to another of those whom it is desired to deal with for crimes o…

12/09/2021

Whether an anticipatory bail granted to a person under Section 438 Cr.P.C. should be limited to a fixed period only and he or she has to surrender before the Trial Court and seek regular bail.

In the matter of Sushila Aggarwal vs State (Nct Of Delhi) in SPECIAL LEAVE PETITION (CRIMINAL) NOS.7281­7282/2017 the Hon’ble Apex Court held that :-

In the light of the conflicting views of the different Benches of varying strength, the following questions are referred for consideration by a larger Bench:

“(1) Whether the protection granted to a person under Section 438 Cr.P.C. should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail.

(2) Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court.”

At the outset, it is required to be noted that as such the expression “anticipatory bail” has not been defined in the Code. As observed by this Court in the case of Balchand Jain (supra), “anticipatory bail” means “bail in anticipation of
arrest”. As held by this Court, the expression “anticipatory bail” is a misnomer inasmuch as it is not as if bail is presently granted by the Court in anticipation of arrest. An application for “anticipatory bail” in anticipation of arrest could be moved by the accused at a stage before an FIR is filed or at a stage when FIR is registered but the charge sheet has not been filed and the investigation is in progress.

In the light of the conflicting views of the different Benches of varying strength, more particularly in the cases of Shri Gurbaksh Singh Sibbia and others v. State of Punjab (1980) 2 SCC Signature…

10/05/2021

No Arrests where punishment is upto seven years as per judgment of Arnesh Kumar, HPCs Should Release All Prisoners Who Were Released Earlier during Covid19 and Lockdown,Supreme Court given Directions To De-Congest Prisons.

In the matter of : Suo Motu Writ Petition (C) No.01/2021, The Hon”ble Supreme Court held that :-

As a first measure, this Court, being the sentinel on the quivive of the fundamental rights, needs to strictly control andlimit the authorities from arresting accused in contraventionof guidelines laid down by this Court in Arnesh Kumar v. State of Bihar (supra) during pandemic. It may be relevant to quote the same:
11. Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we 11 have observed above, we give the following directions: 11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498¬A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC.
11.2. All police officers be provided with a check list containing specified sub¬clauses under Section 41(1)(b)(ii)
11.3. The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
11.4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;
11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;
11.6. Notice of appearance in terms of Section 41¬A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;
11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction.
11.8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
12. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A IPC or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine.
10. Second, the rapid proliferation of the virus amongst the inmates of congested prisons is a matter of serious concern. The High¬ Powered Committees constituted by the State Governments/Union Territories shall consider release of prisoners by adopting the guidelines (such as inter alia, SOP laid down by NALSA) followed by them last year, at the earliest. Such of those States which have not constituted High 13 Powered Committees last year are directed to do so immediately. Commissioner of Police Delhi shall also be a member of the High¬Powered Committee, Delhi.
11. Third, due to the immediate concern of the raging pandemic, this court has to address the issue of de-congestion. We find merit in the submission of Mr. Colin Gonsalves, learned Senior Counsel appearing on behalf of the applicant, that the HighPowered Committee, in addition to considering fresh release, should forthwith release all the inmates who had been released earlier pursuant to our order 23.03.2020, by imposing appropriate conditions. Such an exercise is mandated in order to save valuable time.
12. Fourth, further we direct that, those inmates who were granted parole, pursuant to our earlier orders, should be again granted a parole for a period of 90 days in order to tide over the pandemic.
13. Fifth, the fight against the pandemic is greatly benefitted by transparent administration. In this regard, our attention was drawn to example of Delhi, wherein the prison occupancy is updated in websites. Such measures are required to be considered by other States and should be adopted as good practice. Moreover, all the decisions of High ¬Powered Committees need to be published on respective State Legal Service Authorities/State Governments/High Courts websites in order to enable effective dissemination of information.
14. Overcrowding of prisons is a phenomenon, plaguing several countries including India. Some prisoners might not be willing to be released in view of their social background and the fear of becoming victims of the deadly virus. In such extraordinary cases, the authorities are directed to be considerate to the concerns of the inmates. The authorities are directed to ensure that proper medical facilities are provided to all prisoners who are imprisoned. The spread of Covid¬19 virus should be controlled in the prisons by regular testing being done of the prisoners but also the jail staff and immediate treatment should be made available to the inmates and the staff. It is necessary to maintain levels of daily hygiene and sanitation required to be improved. Suitable precautions shall be taken to prevent the transmission of the deadly virus amongst the inmates of prisons. Appropriate steps shall be taken for transportation of the released inmates of the prisons, if necessary, in view of the curfews and lockdown in some State

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20/04/2021

Notice under sec. 67 of ndps act by investigation officer for statement.

Section 67 in The Narcotic Drugs and Psychotropic Substances Act, 1985

67. Power to call for information, etc.�Any officer referred to in section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provisions of this Act,�

(a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder;

(b) require any person to produce or deliver any document or thing useful or relevant to the enquiry;

(c) examine any person acquainted with the facts and circumstances of the case.

Under the caption “Evidentiary value of statement under section 67 of the Narcotic Drugs and Psychotropic Substances, Act, 1985 (“NDPS Act”)”, the Court noted the decisions of Raj Kumar Karwal v. Union of India (1990) 2 SCC 409 and Kanhaiyalal v. Union of India (2008) 4 SCC 668, as also certain other judgments, most notably Abdul Rashid v. State of Bihar (2001) 9 SCC 578 and Noor Aga v. State of Punjab (2008) 16 SCC 417, and thereafter came to the conclusion that the NDPS Act, being a penal statute, is in contradistinction to the Customs Act, 1962 and the Central Excise Act, 1944, whose dominant object is
to protect the revenue of the State, and that therefore, judgments rendered in the context of those Acts may not be apposite when considering the NDPS Act – see paragraph 33. After then considering a number of other judgments, the referral order states that a re-look into the ratio of Raj Kumar Karwal (supra) and Kanhaiyalal (supra) would be necessary, and has referred the matter to a larger Bench thus:

https://criminallawyersindia.wordpress.com/2021/04/02/notice-under-sec-67-of-ndps-act-by-investigation-officer-for-statement/

20/04/2021

High Courts Shall Not Pass Order Of ‘Not To Arrest’ Or ‘No Coercive Steps’ While Dismissing/Disposing Petition U/s 482 CrPC of quashing of fir.

The Hon’ble Supreme Court in the matter of M/s Neeharika Infrastructure Pvt. Ltd vs State of Maharashtra and others held that :

Whether the High Court would be justified in granting stay of further investigation pending the proceedings under Section 482 Cr.P.C. before it and in what circumstances the High Court would be justified is a further core question to be considered. Before passing an interim order of staying further investigation pending the quashing petition under Section 482 Cr.P.C. and/or Article 41 226 of the Constitution of India, the High Court has to apply the very parameters which are required to be considered while quashing the proceedings in exercise of powers under Section 482 Cr.P.C. in exercise of its inherent jurisdiction, referred to hereinabove.

12. In a given case, there may be allegations of abuse of process of law by converting a civil dispute into a criminal dispute, only with a view to pressurise the accused. Similarly, in a given case the complaint itself on the face of it can be said to be barred by law. The allegations in the FIR/complaint may not at all disclose the commission of a cognizable offence. In such cases and in exceptional cases with circumspection, the High Court may stay the further investigation. However, at the same time, there may be genuine complaints/FIRs and the police/investigating agency has a statutory obligation/right/duty to enquire into the cognizable offences. Therefore, a balance has to be struck between the rights of the genuine complainants and the FIRs disclosing commission of a cognizable offence and the statutory obligation/duty of the investigating agency to investigate into the cognizable offences on the one hand and those innocent persons against whom the criminal proceedings are initiated which may be in a given case abuse of process of law and the process. However, if the facts are hazy and the investigation has just begun, the High Court would be circumspect in 42 exercising such powers and the High Court must permit the investigating agency to proceed further with the investigation in exercise of its statutory duty under the provisions of the Code. Even in such a case the High Court has to give/assign brief reasons why at this stage the further investigation is required to be stayed. The High Court must appreciate that speedy investigation is the requirement in the criminal administration of justice.

The Hon’ble Supreme Court in the matter of M/s Neeharika Infrastructure Pvt. Ltd vs State of Maharashtra and others  held that : Whether the High Court would be justified in granting stay of f…

20/04/2021

Private vehicles not ‘public place’ under Section 42 of NDPS Act: Supreme Court.

The decision of this Court in Karnail Singh as followed in Jagraj Singh alias Hansa is absolutely clear. Total non-compliance of Section 42 is impermissible. The rigor of Section 42 may get lessened in situations dealt with in the conclusion drawn by this Court in Karnail Singh but in no case, total non-compliance of Section 42 can be accepted.

In the circumstances, the Hon”ble Supreme courts held that in the matter of Boota Singh vs State of Haryana that the Punjab and Haryana High Court fell in error in rejecting the submissions advanced on behalf of the appellants. therefore, allow the appeal, set-aside the view taken by the High Court and acquit the appellants of the charge levelled against them. The appellants be released forthwith unless their custody is required in connection with any other offence.

Section 42 in The Narcotic Drugs and Psychotropic Substances Act, 1985

1[42. Power of entry, search, seizure and arrest without warrant or authorisation.—

(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,—

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.]

—https://criminallawyersindia.wordpress.com/2021/04/18/private-vehicles-not-public-place-under-section-42-of-ndps-act-supreme-court/