Tuesday, March 26, 2024

Question about validity of death penalty was raised in the 7th Lok Sabha

On August 22, 1984, P. Venkatasubbaiah, Union Minister of State the Ministry of Home Affairs informed the 7th Lok Sabha that the power of the President under article 72 of the Constitution to commute a sentence of death is absolute and unfettered and a decision is taken by the President on the merits of each prisoner’s case. During the three year period ending with August 14, 1984 the President was pleased to commute the death sentences of five condemned prisoners. He was replying to a question from Lakshman Mallick who had asked about the the number of death sentences commuted by the President during the last three years; and the guidelines for commuting the death sentences. 

Lakshman Mallick had asked about the the number of death sentences, during the last three years, state-wise and years-wise, confirmed after the appeal rejected by the Supreme Court. The minister informed that as of August 14, 1982, 1983 and 1984, there were a 3, 31 and 8 prisoners respectively, who were executed or the awaiting execution after rejection of their Mercy Petition. The minister provided State-wise and year-wise, who were executed or are awaiting execution after their mercy petitions were rejected by the President during the same Period after rejection of their appeals by the Supreme Court.

Out of the 3 who faced execution in 1982, one was from Maharashtra and 2 were from Delhi. Out of the 31 prisoners who faced execution in 1983, 2 were from Bihar, 1 from Gujarat, 2 from Haryana, 1 from Karnataka, 2 from Madhya Pradesh, 6 from Maharashtra, 5 from Punjab, 1 from Rajasthan, 6 from Tamil Nadu, 3 from Uttar Pradesh and 2 from Delhi. Out of the 8 prisoners who faced execution in 1984, 1 was from Jammu and Kashmir, 1 from Maharashtra, 4 from Punjab, 1 from Tamil Nadu and 1 from Uttar Pradesh.   

He had also asked whether Government have received any comments from the public or expert lawyers regarding its abolition. The minister replied, "No comments from the public or expert lawyers were received after the Supreme Court in Bachan Singh and others Vs. State of Punjab (AIR 1980 Supreme Court 898) had uphold the validity of the death penalty".

Notably, in Deena v. Union of India (1983), the Supreme Court directed the constitution of a committee of experts to re-examine whether hanging as a method of execution in capital punishment is in line with constitutional standards, 40 years after this method was upheld.    

Patna High Court acquitted three persons who faced death sentence in 2023

According to the National Crime Records Bureau (NCRB), 561 prisoners were living under a sentence of death at the end of 2023, which is the highest population on death row in a single calendar year in nearly two decades. 

As of December 31 2023, 120 death sentences were imposed by trial courts across the country, according to the eighth edition of the Death Penalty in India: Annual Statistics Report. Its previous seven editions are available at [2022] [2021] [2020] [2019] [2018] [2017] [2016]. These reports are prepared by the team members of Project 39A of National Law University, Delhi (NLUD). 

In 2023, Patna High Court acquitted three persons who were given death penalty by the trial courts. 

1. In the State of Bihar v. Amar Kumar, High Court's bench of Justices Ashutosh Kumar and Alok Kumar Pandey acquitted a person who was charged with murder involving sexual offences, on December 18, 2023.

2. In the State of Bihar v. Deva Nand Singh, High Court's bench of Justices Chakradhari Sharan Singh and G Anupama acquitted a prisoner of murder simpliciter on November 30, 2023.

3. In the State of Bihar v. Shahid, Justices Chakradhari Sharan Singh and Nawneet Kumar bench of the Patna High Court acquitted a person of murder involving sexual offences on August 29, 2023.

In Jai Kishor Sah v. State of Bihar, Patna High Court's bench of Justices Chkradhari Sharan and Rajesh Kumar Verma commuted the death sentence of the prisoner in a case of murder involving sexual offences on June 26, 2023. The sentence was reduced to fixed term imprisonment of 25 years without remission.  

The three new criminal laws, namely, Bharatiya Nyaya (Second) Sanhita (the Indian Penal Code), Bharatiya Nagarik Suraksha (Second) Sanhita (the Criminal Procedure Code) and Bharatiya Sakshya Act, 2023 (the Indian Evidence Act) are all set to come into force from July 2024.

Notably, the Bharatiya Nyaya (Second) Sanhita (new IPC) has increased the number of offences punishable by death from 12 to 18. 

The procedures and time limit for filing mercy petitions by death row prisoners are provided in the Bharatiya Nagarik Suraksha (Second) Sanhita (new CrPC). It codifies the procedure for filing of mercy petitions by death row prisoners. It introduces time limits for the filing of these petitions. 

80, 000 cases pending in Supreme Court, 196947 cases in Patna High Court, 5150733 cases in Bihar's District, Subordinate Courts

According to National Judicial Data Grid, out of 79787 cases including 2240 writ petitions and 972 contempt petitions pending in Supreme Court, 62793 are civil cases and 16994 are criminal cases. Notably, 

Union Ministry of Law and Justice informed Parliament on December 15, 2023 that 4735 cases are 10 to 20 years old and 14840 cases are 5-10 years old in the Supreme Court. 

In the High Courts, there are 6181977 pending cases, according the National Judicial Data Grid. Out of which 4426938 are civil cases and 1755039 are criminal cases.

There are 32,25,690 cases which are 10 to 20 years old and 68,94,578 cases are 5-10 years old, as per minister's reply. He also informed the parliament that in the district courts of India, there are 32,25,690 cases which are 10 to 20 years old and 68,94,578 cases are 5-10 years old. The National Judicial Data Grid reveals that there are a total of 44190110 cases in District and Taluka Courts of India. Out of which 3637842 cases were filed by women.   

A total of 196947 cases are pending in Patna High Court. Out of which 108091 are civil cases and 88856 are criminal cases. There are 5150733 pending cases in  Bihar's District and Subordinateas of December 12, 2023.

In Patna High Court, a total of 3058 cases are over 30 years old, 5607 are 20 to 30 years old, 26386 are 10 to 20 years old, 48997 are 5 to 10 years old, 27437 are 3 to 5 years old, 32168 are 1 to 3 years old and 53294 are 0 to 1 years old. A total of 16914 cases were filed by women. Out which 11781 were civil cases and 5133 criminal cases. 

Notably, there are 2 reference cases, 40 suits and 167 applications which are pending in the High Court. 

Out of a total of 3058 cases which are over 30 years old, there are 14 criminal cases.    

National Testing Agency (NTA) makes Holi of CUET UG candidates colourless, Citizens Forum for Civil Liberties (CFCL) condemns NTA's contempt of Supreme Court

Sunday, March 24, 2024

Patna High Court sets aside judgment by Special Judge, Vigilance-II, Patna in Koshi Hydal Power Station, Birpur, Saharsa case

In Vishwanath Gangul v. State of Bihar, Justice Sunil Kumar Panwar, Patna High Court found force in the submissions made on behalf of the appellants. He inferred that the submissions of the Vigilance is devoid of any merits. By its judgement, the High Court set aside the judgment of conviction and order of sentence dated February 7, 2012 passed by Special Judge, Vigilance-II, Patna in connection with Special Case No. 7 of 1998, arising out of Vigilance P.S. Case No. 7/1998. It acquitted all the appellants of all the charges. They were discharged from the liabilities of their bail bonds.

The appeals were filed against the judgment of conviction and order of Special Judge, Vigilance-II, Patna, whereby and whereunder the accused appellants and others were found guilty and convicted and convicts Kapildeo Narain Prasad Sinha, Vishwanath Ganguli, Shashinath Jha, Deep Narain Mandal and Anil Kumar Rai were sentenced to undergo rigorous imprisonment for one year for the offence punishable under Section 120(B) of the Indian Penal Code (IPC), rigorous imprisonment for one year for the offence punishable under Section 420 of the IPC, rigorous imprisonment for one year for the offence punishable under Section 467 I.P.C, rigorous imprisonment for one year for the offence punishable under Section 468 I.P.C, rigorous imprisonment for one year for the offence under Section 471 of the I.P.C. The convicts Kapildeo Narain Prasad Sinha, Vishwanath Ganguli, Shashinath Jha and Deep Narain Mandal were sentenced to undergo rigorous imprisonment for a period of one year under Section 13(10(d) of the Prevention of Corruption Act, 1988. The convict Anil Kumar Rai was sentenced to undergo rigorous imprisonment for six months under Section 12 of the Prevention of Corruption Act. All the sentences were directed to run concurrently.

The case of the prosecution was that an inquiry was conducted by the Crime Investigation Department and it was found that the estimate was prepared in the year 1986 for capital maintenance of Unit No. II of Koshi Hydal Power Station, Birpur, Saharsa under the supervision of Larson & Turbo Company, Calcutta. This estimate was prepared by the engineers of Larson & Turbo after physical verification of Unit No-II at Birpur. This estimate was prepared for Rs. 5,75,795/-, but the file relating to the said estimate could not return from Head Office, Bihar State Electricity Board (BSEB), Vidyut Bhawan, Patna to Birpur and then in November, 1988, on the same basis, another estimate was prepared for Rs. 6,36,852/-. There was difference of time of one year and eleven months in between the first and second estimate and during that period there was price rise and due to which the amount of second estimate was raised. The estimates were prepared by the local Executive Engineer, Assistant Engineer and Junior Engineer. 

The second estimate was sent to Chief Engineer, Hydal and Investigation S.B. Ram for its acceptance, who sent it to the then Project Manager, Jal Vidyut Pratishtan, Sikidri K.P. Sinha and Executive Engineer (Civil) Ranchi V.N. Ganguli. These two persons arbitrarily enhanced the estimate to Rs. 8,93,330/- without obtaining price list of the articles. In enhancement of the estimate cost, the role was played by S.P. Ram, K.P. Sinha, V.N. Ganguli and D.N. Mandal, the then Executive Engineers, Koshi Hydal Power Station. It was also alleged that Phulanand Jha, the then Electrical Execution Engineer (now dead) was also one of the associates in enhancement of rate of estimate. D.N. Mandal was camping in Ranchi from Birpur only for this work. The second estimate of Rs. 6,36,852/- was also prepared by him and again a third estimate of Rs. 8,93,330/- was prepared in connivance of D.N. Mandal and other officials. In the file relating to the estimate which was sent to Chief Engineer Ranchi for its acceptance, it was specifically provided that the basis of estimate is Larson & Turbo but the accused persons did not obtain any rate of articles from Larson & Turbo and arbitrarily they enhanced the estimates. 

It was alleged that the materials required for capital maintenance of the second unit was purchased from the market without giving any advertisement or without obtaining any quotation, and as such, the accused persons arbitrarily enhanced the amount of third estimate. The accused persons even did not contact the Larson & Turbo company at the time of preparation of estimate. After that the work was got done by M/s Gaurav Constructions, Birpur on the basis of third estimate and its payment was made by Chief Engineer, Hydal and Investigation, Ranchi. M/s Gaurav Constructions & Company is not authorized for the work, rather it works as middleman and in fact the work was got done by technically expert firm in Ranchi.

On the basis of this report, Vigilance P.S. Case No. 7 of 1998 was registered under Sections 120(B), 420, 468, 467, 471 of the IPC, Section 5(2) r/w 5(1)(d) of the P.C Act, 1947, corresponding to Section 13(2) r/w 13(1)(d) of the P.C. Act, 1988. After completion of the investigation, charge sheet was submitted against altogether six accused persons above named under the aforesaid sections and thereafter cognizance was taken and the accused persons were put on trial. 

The counsel of the Vigilance has submitted that three estimates were prepared for capital maintenance of Unit No-II of Koshi Hydal Power Station, Birpur. The difference of amount in first and second estimates was due to time gape of one year and eleven months and price rise during that period. The first and second estimates are not under allegation in this case because it were prepared under the assistance of Larson @ Tubro company. However, the third estimate was prepared by the accused persons in connivance with each other without consultation of Larson @ Tubro Company, whereas it was specifically provided that estimate was to be prepared with the assistance of Larson @ Tubro and price fixed by it. 

Notably, Sant Kumar Sharma, the Investigating Officer (IO) has also stated in his evidence in para-5 that during the course of investigation, he came to know that the estimate was to be prepared with the assistance of Larson @ Tubro and the work was to be done by it, but in spite of that the accused persons did not follow the mandate without assigning any reason in this regard and arbitrarily prepared the third estimate enhancing the cost. 

The counsel for the Vigilance had submitted that the work was to be done by Larson @ Tubro company, but in spite of that the accused persons did not prefer to get the work done by Larson @ Tubro without assigning any reason in this regard and they arbitrarily got the work done by Gaurav Construction company. From the materials available on record, it is apparent that the accused persons prepared third estimate enhancing the amount of second estimate arbitrarily without any valid reason in connivance with each others and for their own benefit which caused loss of Rs, 2,56,478/- to the BSEB. The appellant's counsel submitted that prosecution was required to prove with cogent evidence of material but the entire case is based upon surmises and conjecture. The Court found appellant's submission to be convincing. 

 


Patna High Court grants liberty for filing Civil Review petition to recall High Court's order in a food adulteration case

Patna High Court's bench of Justices P. B. Bajanthri and Alok Kumar Pandey disposed of Md. Islam v. State of Bihar (2024) Miscellaneous Jurisdiction Case (MJC) No.1538 of 2022 as not maintainable but granted liberty to file Civil Review Petition for recall of High Court's order by Chief Justice Sanjay Karol and Justice S. Kumar bench in a food adulteration case. The was filed on August 18, 2022 and registered on August 22, 2022. The case arose out of Civil Writ Jurisdiction Case/3332/2022 which was filed on February 22, 2022, registered on February 25, 2022 and disposed on April 25, 2022. 

The petitioner had prayed for issuance of appropriate writ/direction/order for release of the Tata LPT 2515 Model Truck bearing Registration No. NL01D3907 Chasis No. 426031GTZ128632 and ENGINE No. 60G62495487, which was seized in connection with Sahebganj P.S. Case No. 444 of 2018, Muzaffarpur for the offences punishable under sections 272 and 273 of the Indian Penal Code (IPC), pending in the Court of A.D.J. -2nd cum Special Judge (Excise Act) Muzaffarpur, which was sent to the Collector cum District magistrate, Sitamarhi for its confiscation. 

The section 272 of the IPC deals with “Adulteration of food or drink intended for sale". It states that "whoever adulterates any article of food or drink, so as to make such article noxious as food or drink intending to sell such article as food or drink, or knowing it to be likely that the same will be sold as food or drink, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.” 

The section 273 of the IPC deals with "Sale of noxious food or drink". It reads: "whoever sells, or offers or exposes for sale, as food or drink, any article which has been rendered or has become noxious, or is in a state unfit for food or drink, knowing or having reason to believe that the same is noxious as food or drink, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both”.

The bare perusal of the Food Safety & Standards Act, 2006 demonstrates that all laws prevailing in the country related to to food, their manufacture, storage, distribution, sale and import, to ensure availability of safe and wholesome food for human consumption and for matters connected therewith or incidental thereto was expressly and impliedly repealed. It is crystal clear that sections 272 and 273 of the IPC are repealed provisions of the IPC. Therefore, seizure for the offences punishable under sections 272 and 273 of the IPC in connection with Sahebganj P.S. Case No. 444 of 2018, Muzaffarpur is legally questionable.   

The section 89 of the Food Safety & Standards Act, 2006 gives it an overriding effect over all other food related laws. It reads: "Section— 89 “Overriding effect of this Act over all other food related laws.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.” Notably, the Parliament in its wisdom has used the word ‘all food related laws ‘to avoid ambiguity and to declare that the Special Statute would prevail when it is in conflict with any other laws relating to food. In such circumstance, although the legislature did not amend Sections 272 and 273 of the IPC, by virtue of the overriding effect of the Food Safety & Standards Act, 2006, these provisions of IPC can be considered as impliedly repealed. The use the word ‘over all other related laws’ is not superfluous. The use of the term ‘over all other related laws’ describes the intent of the Parliament to avoid conflict of laws by consolidating of food related laws into a single law having jurisdiction over the whole of India. 

It is also noteworthy that Section 97 (2) of the Food Safety and Standards Act provides that- “if there is any other law for the time being in force in any State, corresponding to this Act, the same shall upon the commencement of this Act, stand repealed and in such case, the provisions of Section 6 of the General Clauses Act, 1897 (10 of 1897), shall apply as if such provisions of the State law had been repealed”.  It is eminently apparent that the action of the police under sections 272 and 273 of IPC in connection with Sahebganj P.S. Case No. 444 of 2018, Muzaffarpur is unwarranted. The police not being Food Safety Officer under Food Safety and Standards Act, 2006 are not empowered to investigate into the offences mentioned specially in the 2006 law.

The State had submitted before the High Court that during the pendency of this writ petition, final order of confiscation has been passed by the Confiscating Authority on November 30, 2021, for which notices were issued to the owner of the vehicle in question. The petitioner's counsel disputed this submission saying, "no notices were issued to the petitioner of the initiation of confiscation proceedings and same has been passed without any notice to him". But the writ petition was disposed of with liberty to the petitioner to avail the statutory remedy under the Excise Act against the order passed by the Confiscating Authority. Justice S. Kumar had authored the judgement in CWJC No. 3332 of 2022.

The judgement in Miscellaneous Jurisdiction Case No.1538 of 2022 was authored by Justice Bajanthri. It reads:"the present M.J.C. is filed for modification of order dated 25.04.2022 passed in C.W.J.C. No. 3332 of 2022. Petitioner in his writ petition has prayed for certain relief relating to release of the subject matter of seized vehicle with reference to order of the learned Additional District Judge-II-cum-Special Judge (Excise Act), Muzaffarpur. It is stated in the relief column “which has been sent to the learned Collector cum District Magistrate, Sitamarhi for its confiscation.” Such typographical error has been crept in petitioner’s writ petition. As long as petitioner’s writ petition is not rectified, it is not appropriate to rectify the order of the Co-ordinate Bench dated 25.04.2022 passed in C.W.J.C. No. 3332 of 2022." The judgement reserved liberty to the petitioner "to file Civil Review petition to recall the order dated April 25, 2022 passed in CWJC No. 3332 of 2022."

 


Friday, March 22, 2024

Judgement of Chief Judicial Magistrate, Nalanda and Additional Sessions Judge, Fast Track Courts 1st, Nalanda quashed and set aside: Patna High Court

Statement under Section 164 of the Cr.P.C. is not a substantive piece of evidence but only corroborative in nature

In Sahdeo Gupta and Naresh Kumar Gupta v. State of Bihar and Kanhaiya Lal (2024), Patna High Court's Justice Bibek Chaudhuri quashed and set aside the judgement and order of conviction and sentence passed in Trial No. 82 of 2008, arising out of Nawada P. S. Case No. 231 of 1994, corresponding to G. R. Case No. 1543 of 1994, by the Chief Judicial Magistrate, Nalanda at Biharsharif and affirmed by the Additional Sessions Judge, Fast Track Courts 1st, Nalanda at Biharsharif in Criminal Appeal No. 39 of 2008.

The criminal revision petition was directed against an order, dated May 30, 2018, passed in Criminal Appeal No. 39 of 2008, by the learned Additional Sessions Judge, Fast Track Courts, 1st, Nalanda at Biharsharif, whereby the Court of Appeal upheld the order, dated March 12, 2008, passed in Trial No. 82 of 2008, arising out of Nawada P. S. Case No. 231 of 1994, corresponding to G. R. Case No. 1543 of 1994, by the Chief Judicial Magistrate, Nalanda at Biharsharif, convicting and sentencing the petitioners to suffer rigorous imprisonment for one year each for the offence punishable under Section 498A of the Indian Penal Code and rigorous imprisonment of six months with fine of Rs. 1,000/- each for the offence punishable under Section 4 of the Dowry Prohibition Act, 1961. Both the sentences were directed to be run concurrently.

Kanhaiya Lal had filed complaint case before the Chief Judicial Magistrate, Nawada against the Petitioners and their family members, alleging that on March 1, 1993, the daughter of the Informant, namely, Jyoti Gupta was married with Naresh Gupta. After marriage, she went to her matrimonial home and she was subjected to physical and mental torture for one Maruti Car. The wife of Naresh Gupta expressed her inability to provide a Maruti Car to the petitioners. She was brutally assaulted by them. The Informant made all other allegations, implicating the Petitioners of dowry related harassment and cruelty towards his daughter.

The counsel for the petitioners submitted that both the Trial Court and the first Appellate Court did not visualize the lack of specificity in the allegation against the petitioners. He pointed out that the de facto complainant claimed that his daughter was brutally tortured but she was never medically treated for such torture allegedly perpetrated upon her by the petitioners. 

The Court agreed with the counsel of the petitioners that both the Courts below relied on the statement of the wife Naresh Gupta recorded under Section 164 of the Cr.P.C. as substantive piece of evidence. But they failed to consider that a statement under Section 164 of the Cr.P.C. is not a substantive piece of evidence but only corroborative in nature, when it corroborates the statement made by the de facto complainant in the petition of complaint, the statement under Section 164 of the Cr.P.C. can be relied on as a corroborative piece of evidence. It found that the statement under Section 164 Cr.P.C. is exaggerated. 

Notably, the Court underlined that "neither the Trial Court nor the Court of Appeal consider that all the witnesses examined on behalf of the prosecution were either the family members or co-villagers of the Informant. They are interested witnesses and their evidences should not be considered as a gospel truth without proper scrutiny."

The High Court observed that "the case under 498 A of the Indian Penal Code is the outcome of personal grudge and differences between both the parties.

The Court relied on the decision of the Supreme Court in Arnesh Kumar v. State of Bihar (2014) wherein it was observed that“4. There is a phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-AIPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-AIPC is a cognizable and non- bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In quite a number of cases, bedridden grandfathers and grandmothers of the husbands, their sisters living abroad for decades are arrested.”

It cited the judgement of the Supreme Court in Preeti Gupta v. State of Jharkhand (2010). It observed by the Apex Court that: “32. It is a matter of common experience that most of these complaints under Section 498-AIPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment is also a matter of serious concern.” 

Justice Chaudhury concluded that it is revealed that omnibus allegation was made against the petitioners. The complainant alleged that all the accused persons harassed her and brutally tortured her on demand of a Maruti Car. However, no specific distinct allegation have been made against either of the Petitioners herein, i.e., none of the petitioners have been attributed any specific role in furtherance of general allegations made against them. This simply led to a suggestion wherein one fails to ascertain the role played by each accused in furtherance to the offence. His order reads: "In view of such circumstances, this Court is not in a position to concur with the concurrent finding of both the Courts below. Accordingly, the instant revision is allowed on contest."