VOX IURA - Issue 6
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SUPREME COURT CASES
1. ALL CONSUMER COMPLAINTS FILED BEFORE CPA 2019 SHOULD BE HEARD BY FORA AS PER PECUNIARY JURISDICTION UNDER CPA 1986: SC
Case name: Neena Aneja and Others v. Jai Prakash Associates Ltd., LL 2021 SC 164.
In a significant verdict, the Supreme Court held that consumer complaints filed before the operation of the Consume Protection Act 2019 (CPA 2019) should continue in the for a in which they were filed as per the pecuniary jurisdiction under the previous Consumer Protection Act of 1986. A bench comprising Justices DY Chandrachud and MR Shah set aside the directions of the National Consumer Disputes Redressal Commission that the previously instituted cases as per the 1986 Act should be transferred to the respective for a as per the new pecuniary limits under the 2019 Act. It is to be noted that the material provisions of the Consumer Protection Act 2019 came into effect with the notification published on July 20, 2020 and the new Act repealed the 1986 Act. The Supreme Court ordered that all proceedings instituted before July 20, 2020 shall continue to be heard by the for a constituted under the 1986 Act and they are not to be transferred to the new for a as per the pecuniary jurisdiction of the 2019 Act.
2. DEFAULT BAIL: STATE CANNOT TAKE ADVANTAGE OF FILING ONE CHARGE-SHEET FIRST AND SEEKING TIME TO FILE SUPPLEMENTARY CHARGE-SHEETS TO EXTEND THE TIME LIMIT U/S.167(2)
Case name: Fakhrey Alam vs. State of Uttar Pradesh [Cr.A. 319 OF 2021]
The Supreme Court observed that the time period for investigation specified under Section 167 of the Code of Criminal Procedure cannot be extended by seeking to file supplementary charge sheet qua UAPA offences. The bench comprising Justices Sanjay Kishan Kaul and R. Subhash Reddy, while granting default bail to Fakhrey Alam, a person accused under Section 18 of the UAPA Act, reiterated that default bail under first proviso of Section 167(2) of the Cr.P.C. is a fundamental right and not merely a statutory right. The court noted that in this case, even within the 180 day’s period, the charge sheet/supplementary charge sheet under the UAPA Act was not filed and it was after a lapse of 211 days that this charge sheet had been filed. The court added that since the consequences of the UAPA Act are drastic in punishment and in that context, default bail is held not to be a mere statutory right but part of the procedure established by law under Article 21 of the Constitution of India.
3. COURTS SHOULD AVOID PATRIARCHAL AND STEREOTYPICL NOTIONS ABOUT WOMEN: SC ISSUES GUIDELINES FOR DEALING WITH SEXUAL CRIMES.
The Supreme Court issued a set of guidelines to be followed by courts while dealing with sexual crimes. It held that the” use of reasoning or language which diminishes the offence and tends to trivialize the survivors to be avoided under all circumstances”.
The court issued the following guidelines:
a) Bail conditions should not mandate require or permit contact between the accused and the victim. Such condition should seek to protect the complainant from any further harassment by the accused.
b) Bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society, and must be in accordance with the requirements of Cr. P. C.
c) The courts while adjudicating cases involving gender related crimes, should not suggest or entertain any notions towards compromises between the prosecutrix and the accused to get marries, suggest or mandate mediation between the accused and the survivor or any form of compromise as it is beyond their powers and jurisdiction.
d) Judges should not use any words that would undermine or shake the confidence of the survivor in the fairness or impartiality of the court.
4. DELAY IN RAISING JUVENILITY CLAIM IS NO GROUND FOR REJECTION OF SUCH A CLAIM: SUPREME COURT
CASE NAME: Ram Chandra vs. State of Uttar Pradesh [SLP (Crl) 8633/2017]
The Supreme Court observed that the delay in raising the claim of juvenility is no ground for rejection of such a claim. Such a claim can be raised at any stage, even after the final disposal of the case, the bench comprising Justices Indira Banerjee and Krishna Murari observed.
FACTS : The court was considering an application filed by one Isha Charan who has been convicted along with others under Section 302 of the Indian Penal Code and sentenced with imprisonment for life in relation to an incident which took place on 30-11-1982. In her application, she placed reliance on a school certificate, to contend that his date of birth is 08-10-1965 and on the date of the occurrence i.e 30-11-1982 she was only 17 years, 1 month and 22 days of age.
OBSERVATION: The plea of juvenility had possibly not been taken before the Trial Court as the trial was concluded and the applicant Isha Charan was convicted before the Juvenile Justice(Care and Protection of Children) Act, 2000 was enacted. However, Section 2(k) of the Juvenile Justice (Care and Protection of Chidren) Act, 2000, defines a "juvenile" or "child" as a person who has not completed eighteen years of age. A person who was a juvenile at the time of commission of offence is entitled to the protection. The claim of juvenility may be raised at any stage, even after the final disposal of the case as held by this Court in Abuzar Hossain @ Ghulam Hossain vs. State of West Bengal reported in (2012) 10 SCC 489. The delay in raising the claim of juvenility is no ground for rejection of such a claim. Similar view has been taken in numerous subsequent cases of this Court.", the court said.
The court also noted that Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000, defines a "juvenile" or "child" as a person who has not completed eighteen years of age. A person who was a juvenile at the time of commission of offence is entitled to the protection, it said. The court, therefore, directed the District and Sessions Judge, Siddharth Nagar, Uttar Pradesh is directed to conduct an inquiry into the juvenility of the applicant Isha Charan and submit a report to this Court within one month from date. The court also directed that she be released on bail on such conditions as may be imposed by the District and Sessions Judge, Siddharth Nagar, Uttar Pradesh.
HIGH COURT CASES
1. ANY OFFENCE COMMITTED UNDER THE POCSO ACT IS NOT COMPOUNDABLE OFFENCE: MADRAS HC
The Madras HC held that “Once the victim girl gave complaint that the appellant has committed the offence and the case has been registered, it is offence against State. Therefore, subsequent compromise will not take away the offence.”
The Police registered the case against the appellant for the offences under Section 417(Punishment for cheating), 376 (Punishment for Rape) IPC and section 5 (Aggravated penetrative sexual assault) r/w 6 of the Protection of Children from Sexual Offences (POCSO) Act. The trial court had sentenced him to 10 years in jail. The Appellant, during the pendency of appeal before the Madras HC filed an application under section 482 (Inherent Powers of the HC) and Section 391 (Appellate Court may take further evidence or direct it to be taken) of Cr.P.C.
In the affidavit sworn by the victim girl, it was stated that both the appellant and the victim girl are living together for the past four years and they are living and they settled the matter and therefore, prayed to allow the appeal and to set aside the order of the trial court and let them live peacefully.
The Court ruled that “Even assuming that victim girl had fallen in love with the appellant and admitted that they are living for four years, even on the date of commission of the offence, provisions of POCSO Act attract. It is not a compoundable offence. Subsequently, she cannot turn it to compound the offence.”
CLAT
1. Consider the following statements:
1. The Constitution does not make CJI the ―Master of Roster
2. The Supreme Court Rules vests in CJI the power of the ―Master of Roster
3. The Constitution of India read with Supreme Court Rules vests in CJI the Power of the ―Master of Rolls
4. The Power is neither given by the Constitution not by the Supreme Court Rules. It‘s just a convention.
Which of the statement given above is / are correct?
a) 1 and 3 only
b) 2 only
c) 3 and 4 only
d) 1, 3 only
2. Consider the following statements:
1) A judge of Supreme Court can be removed from his office by the Parliament.
2) A judge of Supreme Court can be impeached from his office by the President on the recommendation of Chief Justice of India.
3) The removal of Supreme Court judge is based on two grounds - proved misbehaviour or incapacity to act.
Which of the statement given above is / are correct?
a) 1 and 2 only
b) 2 and 3 only
c) 3 only
d) 1, 2 and 3
3. Supreme Court Rules framed under Article 145 of the Constitution provide CJI as the Master of Rolls. These rules-
a) Cannot be challenged as per Justice Dinakaran Judgment
b) Can be challenged before the President of India who is the appointing authority of CJI and other Judges
c) Rules made by the Court violative of Fundamental Rights may be struck down as ultra vires the Constitution as per Prem Chand Garg (1963) judgment of the Supreme Court.
d) Supreme Court is supreme and no authority can question it.
4. In which of the following cases, Supreme Court held that ―Chief Justice is an institution himself?
a) Kamini Jaiswal v. Union of India
b) Asok Pande v. Union of India
c) S.P. Gupta v. Union of India
d) Prashant Bhushan v. Union of India
5. In which of the following cases, Chief Justice was held to be as ‗Master of Roster‘, who alone has prerogative to constitute bench?
a) Prakash Chandra v. Union of India (UOI) through Secretary to the Government of India
b) S P Gupta v. Union of India
c) Third Judges Case
d) Justice C. S. Karnan v. The Hon‘ble Supreme Court of India
JUDICIARY
1. X, a doctor informs his patient Y that he has cancer which is in its last stage. ‘X requests Y to arrange his family affairs as he cannot survive for more than a couple of weeks Y’ dies because of shock on hearing this, X’ is:
(A) Guilty of murder as he knew that such a disclosure will cause death.
(B) Not guilty of any offence under IPC
(C) Guilty of causing death by negligence
(D) Guilty of culpable homicide not amounting to murder as he knew that such a disclosure is likely to cause death.
2. A servant collected money from the debtor of his master as authorized by him. The servant retained the money because it was due to him as wages. He commits:
(A) Criminal breach of trust
(B) Theft
(C) No offence
(D) Criminal Misappropriation
3. X has consensual sexual relations with ‘T’s wife. She gives to ‘X’ a valuable property which X’ knows to belong to her husband “Z’ and she has no authority from ‘Z’ to give. X takes the property. Which one of the following offences has been committed by X’?
(A) Criminal breach of trust
(B) Theft and criminal breach of trust
(C) Theft
(D) Criminal misappropriation
4. Common intention implies:
(A) Similar intention
(B) Pre-arranged planning
(C) Presence of common knowledge
(D) Common design for common objects
5. Which of the following is true as regards to section 410 of IPC?
Statement 1 Conviction of principal offender is a prerequisite to the conviction of the receiver of stolen property.
Statement 2 Where a property is stolen in foreign territory and brought to Indian territory, he cannot be convicted of theft in India, but can be convicted under section 410 of IPC.
Statement 3 Possession of property transferred by theft, robbery alone is designated as stolen property, however, property transferred by criminal misappropriation and breach of trust will not attract Section 410 of IPC.
(A) Statements 1 and 3 are correct
(B) Statements 1, 2 and 3 are correct
(C) Statements 1, 2, 3 are incorrect
(D) Statement 2 alone is correct
ANSWERS
CLAT
1. OPTION B
2. OPTION C
3. OPTION C
4. OPTION B
5. OPTION A
JUDICIARY
1. Answer: (B)
RELEVANT PROVISIONS
Section 52 of the Indian Penal Code,1860 deals with good faith.
Section 93 of the Indian Penal Code, 1860 deals with Communication made in good faith.
Explanation
Section 52. “Good faith”.—Nothing is said to be done or believed in “good faith” which is done or believed without due care and attention.
Section 93. "Communication made in good faith".—No communication made in good faith is an offence by reason of any harm to the person to whom it is made, if it is made for the benefit of that person.
Through this section, we can understand that the communication made with good faith to inform or just too casually talked cannot be considered the cause of harm to anyone.
Illustration
A surgeon, in good faith, communicates to a patient his opinion that he cannot live. The patient dies in consequence of the shock. A has committed no offence, though he knew it to be likely that the communication might cause the patient’s death.
The communication was made in good faith for the benefit of Y, thus X shall not be liable.
2. Answer: (D)
Relevant Provisions:
Section 403 of IPC deals with dishonest misappropriation of property. According to that section whoever dishonestly misappropriates or converts to his own use any movable property, shall be punished with imprisonment of either which may extend to two years, or with fine, or with both
Explanation:
Criminal misappropriation takes place when the possession has been innocently come by, but where, by a subsequent change of intention, or the knowledge of new fact with which the party was not previously acquainted, the retaining becomes wrongful and fraudulent.
Essential elements of Criminal misappropriation:
A person commits criminal misappropriation, if he:
1. Dishonestly misappropriates or converts any property into his own use,
2. Such property should be movable.
In the case of Ramaswami Nadar v. State of Madras, the Supreme Court held that the words used in section 403 such as ‘converts to his own use’ necessarily connotes that the accused has used or dealt with the property in derogation of the rights of the owner of the property
Difference between Criminal misappropriation and criminal breach of trust
Provision: Section 403 of the Indian Penal Code, 1860 defines Misappropriation of the property whereas Section 405 of the Indian Penal Code, 1860 defines Criminal Breach of Trust.
Possession: In Criminal Misappropriation, the property comes into the possession of the offender in some natural manner or by some casualty, but in Criminal Breach of Trust, the property comes into the possession of the offender due to the entrustment by the owner of the accused.
Relationship: In Criminal Misappropriation, there is no contractual relationship between the offender and owner of the property, but in Criminal Breach of Trust, there is a contractual relationship between the offender and owner regarding the property.
Nature of the property: In Criminal Misappropriation, the subject matter i.e. the property is always movable in nature, but in Criminal Breach of Trust, the property may be movable or immovable in nature.
3. Answer: (C)
Relevant provision
Section 378 states that “Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft.
Explanation:
Ingredients for theft:
1. There must be a Dishonest intention to take the property;
2. The property must be moveable;
3. It should be taken without consent of that person;
4. It should be taken out of the possession of another person;
5. There must be some moving of the property to accomplish it’s taking;
K.N. Mehra v. State of Rajasthan in this case the court has held that the absence of persons consent and presence of dishonest intention are the essential elements of theft.
Theft by husband and wife – As far as Hindu Law is concerned, husband and wife do not constitute one single entity for the purpose of criminal law. Therefore, a wife may be guilty of theft, if she moves/gives any property to other person belonging to her husband with dishonest intention without husband’s consent. Similarly, if a husband dishonestly takes his wife’s separate property like her ‘Stridhana’ without her consent, he commits theft.
Also, a Mohammedan wife may be guilty of stealing her husband’s property and the husband may also similarly be held guilty.
Illustration
1. A asks charity from Z's wife. She gives A money, food and clothes, which A knows to belong to Z her husband. Here it is probable that A may conceive that Z's wife is authorized to give away alms. If this was A's impression, A has not committed theft.
2. A is the paramour of Z's wife. She gives a valuable property, which A knows to belong to her husband Z, and to be such property as she has not authority from Z to give. If A takes the property dishonestly, he commits theft.
4. Answer: (B)
Relevant Provision:
Section 34 of the Indian Penal Code, 1860: Acts done by several persons in furtherance of common intention.— When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
Explanation:
Common intention implies a pre-arranged plan. Pre-arranged plan means prior consent or prior meeting of minds. Criminal act must be done in concert pursuant to the pre-arranged plan. Common intention comes into being prior to the commission of the act in point of time.
Common intention implies a pre-arranged plan, prior meeting of minds, prior consultation in between all the persons constituting the group [Mahboob Shah v. Emperor, AIR 1945 PC 118]. Common intention means the mens rea necessary to constitute the offence that has been committed
Where there is no indication of premeditation or of a pre-arranged plan, the mere fact that the two accused were seen at the spot or that the two accused fired as a result of which one person died and two others received simple injuries could not be held sufficient to infer common intention [Ramachander v. State of Rajasthan, 1970 Cr.L.J. 653].
However, common intention may develop on the spot as between a number of persons and this has to be inferred from the act and conduct of the accused, and facts and circumstances of the case [Kripal Singh v. State of U.P., AIR 1954 SC 706].
Common intention is a question of fact. It can be inferred from the facts and circumstances from the whole conduct of all the persons. It should not be inferred from an individual act of one of them.
It was further observed: “Although accused persons may have similar intention to commit a crime, say murder, until and unless the pre-requisites of: (a) pre-consent, (b) presence and (c) participation, in respect of each accused are established, it cannot be said that they shared common intention and be culpable for the crime committed by any of them in furtherance to such intention.”
5. Answer: (C)
Relevant provision:
Section 410 of IPC states that Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as “stolen property”, [whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without India But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property.
Explanation
Section 410 to Section 414 of the Indian Penal Code, 1860 discusses provisions of ‘Receiving Stolen property’. Section 410 of the Code states the “Stolen Property”.
Ingredients
To invoke Section 410 of the Indian Penal Code the following essential ingredients are to be satisfied.
(1) Property is stolen Property if
(i) Possession thereof has been transferred by theft, extortion or robbery, or
(ii) It is Property which has been criminally misappropriated or in respected of which criminal breach of trust has been committed.
(2) It is immaterial whether the transfer has been made or the misappropriation or breach of trust committed within or without India
(3) But if Such property subsequently comes into possession of a person legally entitled to its possession then it ceases to be stolen property.
The essential requirements for convicting a person under this section are mainly two, one is dishonest receipt or retention of the stolen property and second is that he had knowledge at the time of receipt that the property was obtained in one of the ways as laid down in section.