Cheating and Criminal Breach of Trust Cannot Co-Exist on the Same Allegations: Supreme Court

Introduction

In a landmark judgment delivered on 24 September 2025, the Supreme Court of India has clarified that the offences of cheating (Section 420 IPC / Section 318 BNS) and criminal breach of trust (Section 406 IPC / Section 316 BNS) cannot be alleged simultaneously on the basis of the same set of facts. The Court emphasized that both offences are “antithetical” in nature, and therefore cannot co-exist.

The judgment was delivered by a Bench comprising Justice B.V. Nagarathna and Justice R. Mahadevan in the case Arshad Neyaz Khan vs State of Jharkhand & Another (Criminal Appeal No. ___ of 2025; arising out of SLP (Crl.) No. 3606 of 2024).

Background of the Case

The dispute arose from an agreement for sale executed in 2013. The appellant, Arshad Neyaz Khan, agreed to sell certain immovable properties to the complainant, Md. Mustafa, for a total consideration of ₹43,00,000. An advance of ₹20,00,000 was paid, but the sale deed was never executed, nor was the money refunded.

After nearly eight years, in 2021, the complainant filed a case alleging offences under Sections 406 (criminal breach of trust), 420 (cheating), and 120B (criminal conspiracy) IPC. An FIR was also registered. While the High Court refused to quash the proceedings, the appellant approached the Supreme Court.

Supreme Court’s Observations

The Supreme Court undertook a detailed analysis of the provisions and judicial precedents.

1.      On Cheating (Section 420 IPC):

o   For cheating, a fraudulent or dishonest intention at the inception of the transaction is essential.

o   Mere failure to keep a promise later cannot amount to cheating.

o   In the present case, there was no material to suggest that the appellant had dishonest intention from the beginning.

2.      On Criminal Breach of Trust (Section 406 IPC):

o   This offence requires lawful entrustment of property and subsequent dishonest misappropriation.

o   The complainant failed to prove how the property was entrusted or misappropriated.

o   Every breach of contract cannot be converted into a criminal breach of trust unless dishonest intention is evident.

3.      Antithetical Nature of the Offences:

o   In Delhi Race Club (1940) Ltd. vs. State of UP (2024), the Court had earlier clarified the distinction.

o   Cheating involves deception at inception, whereas breach of trust involves lawful entrustment followed by dishonesty.

o   Both cannot exist together in the same factual scenario.

4.      Delay and Mala Fide Allegations:

o   The complaint was filed after eight years, raising doubts on its bona fides.

o   The Court cautioned against misuse of criminal proceedings for settling civil disputes.

By quashing the complaint and FIR, the Supreme Court reiterated the principle that criminal law should not be misused as a tool for harassment or to pressurize parties in civil disputes. This judgment provides much-needed clarity to distinguish between cheating and criminal breach of trust, strengthening the jurisprudence on criminal liability in contractual matters.

The decision is a guiding precedent for lawyers, law students, and judiciary aspirants, reaffirming the Court’s stand against conflating distinct offences in criminal law.

Key Takeaways

• Cheating requires proof of dishonest intention from the beginning of the transaction.
• Criminal Breach of Trust requires proof of entrustment and subsequent misappropriation.
• Both offences are mutually exclusive and cannot be alleged together on the same facts.

Delay in filing complaints and misuse of criminal law for civil disputes will not be entertained by courts.

Difference between Summon Case and Warrant Case

A summon is a form issued by a Court, calling on a person to appear before the Magistrate to produce it. Section 61 of the Cr. PC specifies that summons given by a Judge, a duplicate second copy, signed by the President of the Judge and should also bear the court’s seal. Summons that do not have those elements are considered invalid, and the person to whom they are issued or addressed may refuse to accept them. The Court’s description, the place, date and time at which the summoned person must be present, should be clear.

A warrant is an order issued to a certain person that orders him to apprehend the accused and to bring him to justice. It is being executed on valid grounds only by a Magistrate. The warrant must bear the court seal, and a court presiding officer must sign the written warrant. A warrant remains valid until it is cancelled by the same court, whose seal it bears. The court has a right to state in a warrant that a person can pay a certain amount of security as assurance of producing himself before the court and thereby, avoid his arrest. If necessary, the immediate execution can be done by a person who is not a police officer. A Magistrate can execute a warrant on any person entering his territory and the person to whom the warrant is issued, can be anybody within his local jurisdiction. An arrested person should be notified about the cause of his arrest, and if the need be, the warrant can be shown to him.

Warrant can be authorised to a police officer outside the jurisdiction of the Judicial Magistrate, but this must be approved by the Executive Magistrate or by a police officer who is in charge of the police station.

It would be pertinent to bring out difference between a summons  case and a warrant case from the point of procedure to be adopted for trial of these cases. The difference between the two are as follows: 

1. The Code of Criminal Procedure prescribes two procedures for the trial of a warrant case by Magistrates, namely, one to be adopted by the Magistrate in case instituted on a Police Report while the other in case instituted  otherwise than on a Police Report. But there is only one procedure prescribed for trial of a summons case whether it is instituted on a Police Report or on a complaint.
2. The trial of a warrant case as a summons case is a serious irregularity which would vitiate the trial if the accused has been prejudiced. But the trial of a summons case a warrant case is only an irregularity which is curable under Section 465 of the Code.
3. Where a warrant case has been tried as a summons case and it has resulted into acquittal of the accused, such acquittal shall operate only as a discharge under Section 245 of the Code. On the other hand, where a summon case has been tried as a warrant case and the accused is discharged under Section 245, the discharge will amount to an acquittal under Section 255 of the Code.
4. When the accused appears or is brought before a Magistrate in a warrant case, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. But in a summon case, the particulars of the offence are stated to the accused and he shall be asked whether he pleads guilty or wishes to defend himself.
5. Framing of a formal charge is necessary in a warrant case but it is not necessary in a summon case.
6. In a warrant case, the accused gets more than one opportunity to cross examine the prosecution witnesses whereas in a summons case he gets only one opportunity to cross-examine the prosecution witnesses.
7. A warrant case may result into discharge of the accused under Section 249 in the absence of the complainant but in a summons case, the result would be acquittal of the accused under Section 256 of the Code.
8. In a warrant case, a complaint cannot be withdrawn by the complainant but in a summons case the complainant may withdraw the complaint with the permission of the Magistrate.
9. The Magistrate is empowered to convert a summons cases into a warrant case under Chapter XX of the Code but a warrant case cannot be converted into a summons case.
10. In warrant case, after convicting the accused, the Magistrate may take evidence regarding the alleged previous conviction, which is not admitted by the accused, and shall record his finding thereon. But no such power is conferred on the Magistrate while trying the accused in a summon case.
11. In a summon case, after the issue of summons, the accused may plead guilty by post without appearing before the Magistrate. But no such provision exists in trial of a warrant case. 

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Dr. Deepak Miglani

Email id:- legalbuddy@gmail.com

What is Non-Bailable Offence?

According to Section 2(a) of the Code of Criminal Procedure, “Non-Bailable Offence” means an offence other than bailable offence.

Actually the Code of Criminal Procedure contemplates two kinds of offences- Bailable and Non-Bailable Offence.

The term ‘non-bailable offence does not imply that the accused person cannot be released on bail under any circumstances. Section 437 of the Code of Criminal procedure gives the Court or a police officer-in-charge of a police station unfettered discretion to grant bail in case of non-bailable offence, except where that appear reasonable grounds for believing that the accused person is guilty of an offence punishable with death or imprisonment for life.

But a person under the age of sixteen years or any woman or any sick or infirm person may be released on bail even if the offence be punishable with imprisonment for life or with death. Where a person charged with a non-bailable offence, but it appears in the course of the trial that he is not guilty of such offence, he can be immediately released on bail pending further inquiry.

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Dr. Deepak Miglani, Email id.:- legalbuddy@gmail.com.

What is Bailable Offence?

The offences and their punishments have been given under Indian Penal Code, 1860  and the procedure for the same has been given in the Code of Criminal Procedure, 1973. Under CrPC, the offences have been mainly classified under two heads- bailable and non-bailable offences.

Before defining Bailable Offence, we will understand the definition of offence. It is defined under Section 2 (n) of the Code of Criminal Procedure. According to this Section 2(n) of the Code “offence” is related to the following:-

      -               an act or

       -             omission.

Such an act or omission is punishable by law for time being in force. It also includes any act in respect of which a complaint may be made under Section 20 of the Cattle Tress Act, 1871. Bailable offence means an offence shown in first Schedule as bailable.

According to Section 2 of CrPC, “Bailable offence” means an offence shown as bailable in the first schedule and which made bailable by any other law for the time being in force.

In case of bailable offence bail can be claimed by the accused person as a matter of right and the Court concerned released the accused on the bail.

In Chagani Lal v. State of Gujarat, 1973 GJJ 533, it was held that the Court cannot order remand of the accused to police custody in  a case where the accused is charged of having committed a bailable offence and he is prepared to give bail for his release.

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Dr. Deepak Miglani

Email id.:- legalbuddy@gmail.com

Admissibility of electronic records in evidence

Any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned below are satisfied in relation to the information and computer in question. This information shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein or which direct evidence would be admissible.
The conditions referred to in above paragraph in respect of a computer output shall be the following, namely:-

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the materiel part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,-
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,
and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purpose of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

For this purposes -
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation.- For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.]-Section 65 B Indian Evidence Act 1872

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State has to protect its police

The Andhra HC ruling has grave implications for national security, says C.B.S. Venkataramana
THE Supreme Court has rightly stayed the Andhra Pradesh High Court ruling, declaring that cases of murder under Section 302 of the Indian Penal Code should be filed against the police in cases where individuals are killed in firing either in law and order situations or extremist operations.
Indeed, the High Court order has grave implications for the maintenance of public security in the country. If it is enforced, policemen bearing arms — from those escorting VVIPs to those on patrol duty — will be reluctant to open fire. Otherwise, they will face charges of murder and possible life imprisonment for discharging their duty.
It is the state’s responsibility to protect the citizens. Police is the state’s coercive and enforcing arm. If individual police officers have to stand trial and defend themselves for their actions done as a part of their lawful duties, what is the protection and immunity that the society and state offer to them for having acted on their behalf in good faith? Who will come forward in future to act on behalf of the state in the fight against armed extremists, terrorists and anti-social elements and put themselves in risk for life imprisonment?
In the criminal justice system, the entire burden of investigation and proof generally rests with the prosecution and the state. The police will have to prevent, detect, and investigate crimes and maintain public order. If the High Court ruling is implemented, the policeman would probably take the path of least resistance and simply duck the responsibility for such functions by filing innocuous reports.
With over 110 districts in the country being under severe extremist threat and terrorist strikes in some state capitals, an overwhelming negative motivation will permeate the police officers in working in these areas of policing, if the state and society are unwilling to protect and indemnify their actions done in discharge of their official duties.
Peculiar problems will crop up. When police officers involved in deaths due to ‘encounter’ shoot-outs or crowd-control firings are prosecuted for murder, as in other cases, the state has to take up the prosecution. However, if the police have acted on duty as part of their responsibilities on behalf of the state, they would also have to be defended by the state. Or, would they be left to their own?
Moreover, if death in police firing is treated as prima facie murder and case initiated against the policeman involved, why should not the policemen also be charged for assault, etc. for injuries sustained by individuals in police action in crowd control operations? Secondly, there would be no merit in any policeman carrying firearms since a firearm’s purpose is to ‘shoot to kill’, if need be. By logical conclusion, it is pointless to provide armed escort to VVIPs.
The police might even become averse to carrying firearms as being avoidably risky. Shy of using weapons, police will cease to be the state’s coercive and enforcing arm. If the state itself is not to disintegrate, such functions would then have to be necessarily entrusted to some other force, say the army. The whole question of trusting such a force with use of firearms and causing death if need be would again rise and go through the same full circle.
When the trial court magistrate determines that the police shall stand trial for murder for deaths, the investigation has to be entrusted to other officers in the same police department, whose impartiality would naturally be suspect. Would a separate police force be then raised under the courts’ or some other authority’s control to investigate offences determined to have been committed by the police personnel prima facie?
Another implication of the High Court ruling relates to the degree of trust and distrust that ought to be placed by society in the police force vis-à-vis other wings of the state. Considered together with an earlier Supreme Court order that no member of the judiciary, judge or magistrate, shall be arrested by the police for any offence whatsoever without the permission of the higher courts, the law of the land as laid by these two judgments is that, on one hand, absolute trust shall be placed by society in the judiciary, and judges not arrested or cases filed for any offence small or big, even murder committed by them in their private capacity, without prior permission from the higher judiciary.
On the other, while police shall be trusted with the use of weapons that are used to kill, the police force itself shall be completely distrusted, and it be left to the judgment and discretion of a trial court magistrate whether the policeman’s version of facts and events should be believed or not.
A better alternative to this total distrust of the police force could be to compulsorily arrange for a judicial magistrate and a press television crew team to accompany every posse of armed police force proceeding on mob control functions or extremist and terrorist control patrolling tasks. Only then would the judicial magistrate or judge be able to take the sum total of circumstances of the incident, together with the extreme agitation and terror of the moment and the scent of fear of life and death that the police personnel face, in determining whether or not the action taken by them, leading to causing of a death, did actually occur in bona fide discharge of their lawful functions.
No individual or judge, sitting in the cool confines of his office or court, doing a legalistically clinical post mortem of events basing merely on reported descriptions of the event, do any justice in deciding whether the acts that were done by the police personnel under tension, facing the risk of death, were justified or otherwise. It has to be inferred, albeit sadly, that the High Court order shows an impractical and armchair approach to the matter.
A further alternative could be that instead of a case of murder being automatically initiated in the appropriate trial court in every case of death in police firing (death in police lock-up being excluded), a permanent statutory commission could be constituted for each state to scrutinise and review all such cases. The commission could have a reputed retired member of the higher judiciary as chairperson, reputed retired administrators and police officers with experience of working in districts with extremist/terrorist violence, and one or two reputed dispassionate members of the civil society as members.
The commission could scrutinise and review every case of death in police firing and give their finding to the government whether a prima facie case of abuse of powers is involved, and such finding could be binding on the government. This commission could be given statutory status through appropriate provisions to the Criminal Procedure Code.
Also, where criminal cases of murder are initiated against police officers in instances of death in police firing, the onus of proof of self-defence might be shifted from the individual police officer to the prosecution to prove that the said acts were not done in self-defence. For, it would be grossly unfair and impractical to put a police officer in the same situation as that of a private individual, who, if had killed another in self-defence, has to prove the same, the prima facie assumption being that that act was not in self-defence.
The issue in question is whether the state has the right and duty to protect itself and its very existence; and if so, what means are just in that process. A demoralised and psychologically disengaged police force can be the weakest link of the chain, however strong it may be, in its ability and resolve to defend the state.

The writer, a senior IAS officer, is Joint Director-General, Ministry of Shipping, Government of India, Mumbai

Source:- The Tribune 5 April 2009 http://www.tribuneindia.com/2009/20090405/edit.htm#1

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‘No tinkering with chargesheet’ –Supreme Court of India

This significant ruling from the Supreme Court is sure to nip the growing tendency among ruling political parties to change the course of a investigation by forcing the police to abuse the law permitting further probe and filing of additional chargesheet.

The apex court’s ‘do not tinker with the course of investigation’ message came loud and clear in its judgment delivered on Thursday by a Bench comprising Justices S B Sinha and P Sathasivam. It ruled that the police could not effect radical changes in the crux of a chargesheet by filing an additional chargesheet after conducting further probe.

This means, if the police have made a person accused in the first chargesheet, it cannot, while submitting an additional chargesheet, give a clean chit to him. Under Section 173 of the Criminal Procedure Code, police had the power to carry out further probe into a case even after filing a chargesheet and on discovery of further evidence could file an additional chargesheet, said the Bench stating the law.

“Further investigation is permissible, however, reinvestigation is prohibited. The law does not mandate taking of prior permission from the magistrate for further investigation. Carrying out a further investigation even after filing of the chargesheet is statutory right of the police,” it said.

However, police could undertake reinvestigation only with the prior permission of the concerned magistrate, said Justice Sathasivam, writing the judgment for the Bench.

Explaining the meaning of Section 173(8) of CrPC, he said: “Further investigation is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether.”

On completion of the “further” probe, the investigating agency had to forward to the magistrate a “further” report and not a fresh report regarding “further” evidence obtained during such investigation, the Bench said.
Source:- The Times of India 4 April 2009 P. 13 Delhi
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SC trashes obscenity charge on Husain

New Delhi, Sept. 8: The Supreme Court today refused to allow prosecution of M.F. Husain on obscenity charges, saying his paintings were “art” and citing how erotic sculptures abounded at Hindu temples.
The apex court threw out an appeal against a May 8 Delhi High Court order that had quashed criminal proceedings against Husain while deploring the “new puritanism” in India.
“There are so many such subjects, photographs and publications. Will you file cases against all of them?” Chief Justice K.G. Balakrishnan wondered. “What about temple structures?”
He added: “It (Husain’s work) is art. If you don’t want to see it, don’t see it. There are so many such art forms in temple structures.”
The court rejected the argument of the Maharashtra-based complainant that Husain should be summoned before the court with his paintings and asked to explain their meaning.
Husain, 93, has been living in self-imposed exile in Dubai and London for the past two years while a series of cases have been filed against him in India for his nude paintings of Hindu goddesses and Bharat Mata.
On May 8 this year, Delhi High Court had dismissed three criminal complaints against Husain, filed in Bhopal, Indore and Rajkot. Justice Sanjay Kishan Kaul had said the allegation that Husain’s paintings were obscene were baseless.
“A painter has his own perspective of looking at things and it cannot be the basis of initiating criminal proceedings against him,” Justice Kaul had observed.
“In India, a new puritanism is being carried out in the name of cultural purity and a host of ignorant people are vandalising art and pushing us towards a pre-renaissance era…. A painter at 90 deserves to be sitting in his home and painting his canvas.”
The three complainants had moved courts in their home states claiming Husain’s nude Bharat Mata had offended Hindu religious sensibilities.
The apex court had clubbed these complaints together on a plea by Husain, who said he was too old and ill to travel to fight the cases, and sent them to the high court in September last year.
Several other cases accusing the painter of hurting religious sentiments and promoting enmity between religious groups have also been quashed.
With Thanks from the The Telegraph Tuesday , September 9 , 2008
Source:- http://www.telegraphindia.com/1080909/jsp/nation/story_9807563.jsp
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Ansal brothers sent to serve 2-yrs imprisonment

New Delhi (PTI) Real estate barons Sushil and Gopal Ansal were on Thursday sent to jail by a Delhi court where they surrendered in compliance with a Supreme Court order cancelling their bail in the case of Uphaar fire tragedy, which claimed 59 lives.
While Sushil had remained behind the bars for around 40 days in 1997 when the mishap took place, his younger brother will go to jail for the first time.
Pensive looking Ansal brothers, who were directed by the apex court to "serve out the remaining period of the two-year sentence" given by the trial court, entered the courtroom of Additional Sessions Judge (ASJ) I K Kochhar around 3.15 pm and were taken into custody by CBI personnel on the conclusion of procedural formalities.
The Supreme Court had yesterday said that the Delhi High Court was "not justified" in granting them bail in the facts and circumstance of the present case, especially in view of their conduct when they were on bail.
A bench of Justices B N Agrawal and G S Singhvi had taken strong exception to the allegations that Ansal brothers attempted to destroy evidence, saying "tampering with judicial records is a crime worse than murder or dacoity".
The ASJ, after perusing the apex court order, called up the names of convicts including the Uphaar hall managers -- Nirmal Singh Chopra and Ajit Choudhary, who were sentenced to seven years jail term.
Ansal brothers, who remained out on bail during the trial in the 11-year-old case, were sentenced to two years jail term on November 23, last year, after being convicted under a milder penal section 304A (causing death by rash and negligent acts) of the IPC.
Flanked by their lawyers, the convicted brothers moved several applications in the court seeking access to medicines, spectacles and medical assistance inside Tihar jail which was opposed by CBI counsel Y K Saxena on the ground that only Jail Superintendent could decide such issues.
"Don't get into all this. I am ordering to the Jail Superintendent to look into these according to the Jail manual," the judge said.
Ansals, however, got some relief when the judge accepted their request to order the lensmen present outside the courtroom to be sent out of the Patiala House Court complex.
"I want media out of this court", the judge said, asking Delhi Police personnel to push away the journalists.
Sushil, wearing a white shirt and grey trousers, came alongwith his lawyers, almost five minutes after his younger brother Gopal, who was also sporting a similar shirt and brown trousers, entered in the courtroom to surrender.
Members of the Association of Victims of Uphaar Tragedy (AVUT), on whose appeal the apex court had cancelled the bail, were present in the courtroom since morning for attending the day's proceedings.
Neelam Krishnamurthy, who lost both her son and daughter in the tragedy and has been relentlessly pursuing the case for over a decade, expressed satisfaction at the outcome of the events that finally resulted in the arrest of Ansal brothers.
"It is very satisfying to see Ansals going behind the bar. I was not satisfied when they were convicted and still remained outside," Krishnamurthy, who was with her husband Shekhar and other members of Association, said.
AVUT's lawyer Sultan Singh said now the Ansals will know the pain of living in jail away from their kith and kins.
"Ansals will now realise the trauma of the victims' kin who have been living without their loved ones," he said.
With Thanks from the The Hindu 11 September 2008 Thursday
Source:- http://www.hindu.com/thehindu/holnus/000200809111841.htm
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'जब वी मेट' के डाइरेक्टर के खिलाफ अरेस्ट वॉरंट’ Arrest warrant against the director of Jub We Met

रतलामः शाहिद कपूर और करीना कपूर की फिल्म ' जब वी मेट ' के निर्देशक और लेखक इम्तियाज़ अली के खिलाफ मध्यप्रदेश के रतलाम की एक कोर्ट ने गिरफ्तारी वॉरंट जारी किया है। अली और फिल्म निर्माता कंपनी अष्टविनायक सिने विज़न प्रा.लि. के खिलाफ दायर एक याचिका पर नोटिस लेते हुए चीफ जुडिशल मैजिस्ट्रेट ने यह कार्रवाई की। योगेश शर्मा ने फिल्म में रतलाम शहर को वेश्यावृति के अड्डे के रूप में पेश करने पर आपत्ति जताते हुए मुकदमा किया था। मुकदमे में अली के अलावा ऐक्टर शाहिद कपूर और ऐक्ट्रिस करीना कपूर को भी अभियुक्त बनाया गया था। शुरुआती सबूत दर्ज कराने के बाद जज ने शाहिद और करीना कपूर को मामले से बाहर करते हुए फिल्म निर्माता और निर्देशक के खिलाफ मानहानि का आपराधिक मामला दर्ज कर लिया था। इस मामले में दोनों को कोर्ट में हाज़िर होने के आदेश दिए गए थे। गुरुवार को फिल्म निर्माता कंपनी की ओर से उनकी प्रतिनिधि दामिनी रसाल ने कोर्ट में उपस्थित होकर पांच हज़ार रुपये की ज़मानत पेश की। फिल्म के डाइरेक्टर इम्तियाज़ अली कोर्ट में हाज़िर नहीं हुए। इस पर न्यायाधीश एम. के. जैन ने कड़ा रवैया अपनाते हुए इम्तियाज़ अली के खिलाफ गिरफ्तारी वॉरंट जारी कर दिया। मामले की अगली सुनवाई 11 नवंबर को होगी। गिरफ्तारी वॉरंट मुंबई पुलिस कमिश्नर के ज़रिए से तामील करवाया जाएगा।
With Thanks from from नवभारत टाइम्स Source:- 4 Sep 2008 नवभारत टाइम्स http://navbharattimes.indiatimes.com/articleshow/3445599.cms

Immunity from Criminal Liability on the ground of drunkenness

Deepak Miglani Adv.

Drunkenness is a species of madness for which the man is to blame. The law pronounces that the obscuration and divestment of that judgement and human feeling which in a sober state would have prevented the accused from offending, shall not when produced by his voluntary act, screen him from punishment although he may by no longer capable of self-restraint. Qui pecat ebrius luat sobrius: let him who sins when drunk be punished when sober. If a man chooses to get drunk, it is its own voluntary act; it is very different from madness which is not caused by any act of the person. Now, so far as intoxicated persons are concerned, Section 85 and 86 are relevant. Section 86 lays down that nothing is an offence which is done by a persons who, owing to intoxication, is incapable of knowing the nature of the act, or that what he is doing is wrong or contrary to law, provided that the thing which intoxicated him was administered to him without his knowledge or against his will. It will, therefore, be been that for an offence committed is consequence of voluntary drunkenness, there is not excuse in law. If it were otherwise any murderer would first get himself thoroughly intoxicated, have enough sense to commit the murder, and plead intoxication as complete defence. Thus drunkenness is either voluntary or involuntary . The latter can excused under certain circumstances, but the former is no excuse. Section 85 declares that voluntary intoxication is no excuse for the commission of a crime. But if he gets intoxicated through fraud or stratagem of others, and thereby becomes incapable of understanding the nature and quality of the act, he must be excused. Likewise, if a person, by mistake takes some wrong medicine and gets intoxicated and then commits an offence surely he cannot be held liable. Similarly, if fraud is practised on him whereby he is made to take an intoxicant, and then he commits an offence , he cannot be held liable. Such cases are not cases of voluntary drunkenness. Test of Drunkenness- The test to apply in cases of drunkenness is whether by reason of drunkenness, the accused was incapable of forming an intention of committing the offence. For any query:- legalbuddy@gmail.com

Maya govt to repeal crime control bill

5 Sep 2008 The Times of India

LUCKNOW: Almost three days after the Union home minister for state Shri Prakash Jaiswal ruled out possibilities of giving a nod to Uttar Pradesh Control of Organised Crime Bill (UPCOCB), chief minister Mayawati took a decision to repeal the controversial bill on Thursday.

After having been passed by the state Assembly on February 13, 2008, the bill has been awaiting presidential assent.

"We have been able to curb crimes without the special act. Therefore it is hardly required," Mayawati declared at a press conference on Thursday. She, however, demanded to know that "how a law, which is considered perfectly valid in Maharashtra, could be trashed as draconian and useless in UP?"

"This only shows duplicity in the Congress party’s character," the CM said, adding that MCOCA must also be scrapped going by the same logic.

"Maharashtra, which has been ruled mostly by the Congress governments all along, has not been able to eliminate crime despite MCOCA," she said.

Targeting the lawlessness during Mulayamraj, the CM said that she had inherited a troubled legacy. "Loot, murder, decoity, kidnapping were order of the day during that time and criminal elements enjoyed protection by police and administration. The prevailing lawlessness and corruption during the SP rule, she said, posed a tough challenge and to bring the situation under the control "we decided to formulate UPCOCB", she explained

However the Congress, which had supported a similar legislation in Maharashtra all along, protested when such a decision was taken, the CM said. The party, she said, needed to do some introspection and learn to follow what they preach. The duplicity shown by the Congress party over this particular issue, Mayawati said, was deplorable and needed to be condemned. The UPCOCB had been awaiting assent from the president for past six months after having been passed by the assembly. Questioned by the media about the delay, Jaiswal had said that the Centre was not in favour of giving unbridled power to state and its police. "We have said no to Gujarat and will say the same to UP," he had declared.

With thanks from The Times of India
Source:- http://timesofindia.indiatimes.com/Lucknow/Maya_govt_to_repeal_crime_control_bill/articleshow/3446436.cms

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Criminal Liability of Minor

Contributed by Deepak Miglani Advocate

Secs. 82-83 of Indian Penal Code , there is an absolute incapacity for crime under seven years of age. According to Sec. 82, an act of a child under seven years is no offence. It is to be noted that this immunity is not confined to offences under the Code only , but extends to offences under any special or local law. An infant is , by presumption of law, doli incapax i.e. not endowed with any discretion so as to distinguish right from wrong, thus, the question of criminal intention does not arise. Where persons get crimes committed through children below 7 years, they will be held liable while the child will be exempted. According to Sec. 83 , acts done by children above seven and below 12 will be protected if it is shown that the child in question has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion. It is to be noted that there is complete liability to punishment after twelve years of age. Where a child of 9 years of age stole a gold necklace and sold it to B for half a rupee only. The boy would be liable if he was proved to be of sufficient maturity of understanding. The Maxim militia supplet oetatem ( malice supplies defect of years) applies to Sec. 83. The circumstances of a case may disclose such a degree of malice as to justify the maxim.

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Delhi govt official in a spot for legal opinion

It’s a question of propriety. If a judge has dealt with a criminal case in his career, he is unlikely to deal with it in a different capacity — it’s considered to be an issue of ethics in judicial circles. This golden rule has been allegedly ignored by the principal law secretary of Delhi government G P Mittal who is a serving judicial officer. Mittal is at the centre of a controversy because he advised the prosecution not to appeal against an acquittal order in a dowry death case in which he had granted anticipatory bail to the accused three years ago while presiding over a sessions court.
Incidentally, the principal law secretary to Delhi government is always a senior sessions judge level officer who serves on this post while on deputation from the judiciary. The allegation against Mittal is being examined at the highest quarters of the government with the home secretary assessing the question of propriety raised in this case.
Subhash Arora, the complainant who approached the government, had lost his daughter, Kajal, about three-and-ahalf years ago. She was found hanging from the ceiling fan of her matrimonial home on January 31, 2005. While the husband and in-laws said it was suicide, Arora lodged an FIR of dowry harassment and cruelty against his daughter’s in-laws, alleging she was murdered.
In a detailed order on February 22 the same year, additional sessions judge G P Mittal granted anticipatory bail to Kajal’s brothers-in-law, Amit Chaudhary and Parichay Chaudhary, and a few days later to the parents-in-law, namely Bharat Bhushan and Nirmala Chaudhary. While giving them this protection, the ASJ noted that the in-lwas were staying separately from Kajal and her husband who were in United States for a period of three years before returning to India.
Arora got a further setback when in May this year a Rohini sessions judge acquitted all the accused, observing that there was no evidence that Kajal was subjected to any cruelty. Quoting from verdicts of Supreme Court and Delhi High Court, the trial court assessed that the victim might have been ‘‘hypersensitive to ordinary petulance and discord’’ and then concluded this was not enough to prove Kajal’s husband and in-laws pushed her to hang herself.
Whatever be the merits of the case, Arora planned to appeal in the HC but was shocked to know even though the director of prosecution wanted to go in for an appeal, the principal law secretary refused to grant sanction. A reply from Mittal’s office dated June 20, 2008, to Arora’s enquiries informed him ‘‘the matter has been examined in this department and found not fit for filing appeal...’’
This forced Arora to write to both the L-G and the CM, pointing out since Mittal had dealt with this case earlier, he should not have given a legal opinion on it now. ‘‘It is humbly prayed that Sh G P Mittal be recused from making another opinion in this matter in the interest of justice,’’ says Arora’s letter.
Attempts to reach Mittal for his comments proved futile. His deputy secretary, Chaman Lal, when asked about the allegations refused to comment.

With thanks from The Times of India 29 July 2008 P. 4 Delhi

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‘Coroner’ could ensure doubt-free autopsies

Crucial they might be, post-mortem reports in India are often the weakest and the most suspicious link in cases involving death. But this may no longer be the case.

If the Law Commission’s recommendations to enact a Coroners Act is heeded to by the government, post-mortem reports would not be subject matter of any controversy as there would be a designated officer in each area to take care of this legal necessity.

The recommendation, on the line of a similar British law, was handed over to the law ministry on Tuesday by Commission chairman Justice A R Lakshmanan.

Admitting that “divergent post-mortem reports and statements of witnesses have led to an alarming rate of acquittal in criminal cases”, the commission has suggested appointment of a coroner for each district and also for each Union territory. The coroner will have jurisdiction over a dead body found within his territorial jurisdiction, whether the death occurs in any part of the country or abroad. The commission took note of the recent abnormal spurt in unnatural deaths, especially in places like hospitals, in police firings, railways and other vehicles, and even in the households by way of dowry deaths before deciding to recommend the new law.

The panel examined the Coroners Act, 1871, the Coroners Act, 1988 (UK), relevant provisions of the Code of Criminal Procedure, 1973, and the Indian Penal Code, 1860, keeping in view the scope of Article 21 of the Constitution, so as to include the right to know the correct cause of death of any person, especially when the death is unnatural or suspicious.
With thanks from The Times of India 11 June 2008 P. 17 Delhi

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Proposal of 10 Yrs Jail For Running Over People While Driving Drunk

Panel seeks to hammer in traffic sense

GETTING TOUGH

• Maximum prison term for death by rash and negligent driving to be enhanced from 2 years at present to 10 years
• Cameras to be fitted at strategic positions on roads to help cops nab culprits who speed away after running over people
• No speed breakers or hoardings on highways to ensure smooth traffic
• All city transport buses will have to be fitted with speed governors
• Each city transport bus to be insured to enable victim’s kin to get compensation early

Finally, there is a serious effort to discipline our traffic. The Law Commission has prepared a report on traffic discipline that sets down stringent penalties and exacting norms to straighten out India’s notoriously indisciplined roads.

The Commission report has recommended a crackdown on drunken, rash and negligent driving by proposing that the maximum jail term for death caused by drunk or rash driving should be enhanced from two to 10 years. If the proposal is accepted, drunken or careless driving may become as much of a no-no in India as it is in the West.

While this is possibly the most dramatic recommendation made by the commission, headed by Justice A R Lakshmanan, there are a number of others that aim to make public transport more secure, heighten surveillance on roads, discourage distractions to drivers like cellphones or giant hoardings, and, generally speaking, minimise risks to public safety.

Among the other recommendations are positioning cameras on all major intersections and arterial roads in cities, doing away with speed breakers and hoardings on highways, intensive patrolling to deter drunken driving and use of mobiles while driving, and mandatory speed governors in city buses.

“I am giving the final touches to the recommendations which would address a lot of questions being asked by public about the leniency in legal provisions on rash and negligent driving,” Justice Lakshmanan told TOI.

By pitching for a zero tolerance regime against rash, negligent or drunk driving, the commission has effectively sought to transform the nature of the offences — from a minor infringement to a serious crime and a huge risk to public safety.

At present, in a majority of rash or drunken driving cases, the offender is booked by the police under Section 304A of the Indian Penal Code. The provision says: “Whoever causes the death of any person by doing a rash or negligent act not amounting to culpable homicide (murder), shall be punished with imprisonment of either description for a term which may extend to two years or with fine, or both.”

With thanks from The Times of India 11 June 2008 P. 1 Delhi

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Surrender First, Then Seek Bail-Supreme Court

‘Pre-arrest bail most abused provision’

The pre-arrest bail provision in the Criminal Procedure Code, inserted to save the innocent from harassment at the hands of the police, is the most abused, the Supreme Court said on Monday.

Its anguish stemmed from the fact that a discretionary power vested with the high courts and sessions courts was being repeatedly invoked by persons accused of heinous offences, which was not the intent of the relief-giving provision.

Exasperated by the large number of pre-arrest bail petitions flooding the HCs and even the Supreme Court, a vacation bench comprising Justices Arijit Pasayat and P P Naolekar said: “Now rapists, triple murder accused and most corrupt have started seeking anticipatory bail making the provision one of the most abused sections of the Criminal Procedure Code.”

The bench passed a standard order in all anticipatory bail petitions — let the accused surrender before the trial court and then seek bail. However, it also asked the trial court to hear the bail petition on the day it was filed before it.

Section 438 of CrPC, which deals with pre-arrest bail, provides: “When any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the high court or the court of session; and that court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.”

The section mandates that all prearrest bails would have at least three conditions attached to it — the accused should cooperate in investigation, not tamper with evidence or influence the witness, and not leave the country without prior permission of the court.

The Law Commission of India, in its 203rd report to the law ministry, had extensively dealt with the practicality of an amendment to the pre-arrest bail provision brought in under the CrPC (Amendment) Act, 2005, which had made it mandatory for the person seeking pre-arrest bail to be present before the court during the final hearing of his application. The commission had opined against the provision. However, Chief Justice of India K G Balakrishnan had recently made a grievance of pre-arrest bail petitions flooding the HCs because Section 438 of CrPC gave concurrent jurisdiction to both HCs and sessions courts.

Justice Balakrishnan had said: “As the court of sessions has the power to deal with sessions cases resulting in the imposition of death sentence or imprisonment for life, there is no reason why such a court could not be considered adequate to deal with applications for grant of anticipatory bail. Needless time of the high court would be spent in dealing with applications for grant of bail.” “We, therefore, recommend that Section 438 of the CrPC be suitably amended restricting the power of granting anticipatory bail to the court of sessions,” he had said.

With thanks from The Times of India 10 June 2008 P. 11 Delhi
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Warrant-A Brief Introduction

Contributed by Dr.K.V.K.Santhy* & Deepak Miglani**

Warrant is a written order from a court to a police officer.
Warrant of arrest is a written order from a court to a police officer to arrest a person and produce him before the court.
Search warrant is a written order to a police officer to search the premises of a person for a particular thing or a document required by the court in connection with a case.
Contents of Warrant:-
It should contain the name of the accused and his father's name and the caste/tribe, nationally and residence of the person to be arrested, so as to place his identity beyond all doubt. The warrant should specify the offence charged and the name of the district and the court issuing it.
The presiding officer, who alone, can sign the warrant. He must be the officer who presides in the court at the time when the warrant comes to be signed. An arrest under the warrant duly signed but not sealed is an illegal arrest. The absence of a seal on a warrant of arrest renders it void and invalid and obstruction to the execution of such warrant of arrest is not punishable.
When Police may arrest without warrant :-
According to Section 41(1) of Criminal Procedure Code , any police officer may, without an order from the Magistrate and without warrant arrest any person-
1. If he is wanted in a cognizable offence or if there is a reasonable suspicion, complaint or information that he has committed a cognizable offence; or
2. If he possesses, without licence, implements of house-breaking; or
3. If he is proclaimed as an offender; or
4. If he possesses stolen property; or
5. If he obstructs a police officer on duty; or
6. If he tries to escape from illegal custody;
7. If he is a deserter from the army, navy or airforce;or
8. If he commits an offence when he is out of India, punishable under any extradition law; or
9. If he is a released convict who breaks the restrictions imposed by the court; or
10. If any requisition for his arrest has been received, oral or written from another police officer.
Warrants to whom directed:-
A warrant of arrest is ordinarily directed to one or more police officers. If the court issuing the warrant may, if its immediate execution is necessary and no police officer is immediately available, direct it to any other person. A police officer can not endorse a warrant to a private person.
Kinds of Warrants:- There are two types of warrants Bailable and Non Bailable.
Bailable Warrant If the offence committed is bailable the conditions for granting bail are given in the warrant itself, and the person to whom the warrant is issued can comply with those conditions and in all these cases the bail is granted by the police officer itself. This could also be issued in a non bailable offence.
Non Bailable Warrant If the offence committed is a non bailable one, the warrant issued to the accused is called Non Bailable warrant. Unlike in the Bailable warrant here it is mandatory for the person to come to the court. The basic purpose of issuing Warrant is to make a person to attend the court and participate in the court proceedings.

Search Warrant It is a written order given to the police officer by the court to search the premises of any person for specified things or documents relevant to conduct the Investigation or Trial. When the police officer shows the search warrant to the owner of the house he is under a duty to allow him into the premises and shall assist him in conducting the search. The police officer is not supposed to show any kind of harshness to the occupants of the house. He shall prepare a seizure list and get it signed by two respectable inhabitants from the same locality and also with the owner of the premises. A copy of the seizure memo shall be given to Owner. A search warrant can be issued to search a specific premises and it could be a general search warrant to search any premises and any person who ever is in possession of the documents or things.
Person arrested should be brought before Court without delay:-
The authorized person should bring the arrested person with in 24 hours before the Court without any unnecessary delay before which he is required by law to produce such a person.
Where warrant may be executed:-
A warrant can be executed at any place in India. The Extradition Act, 1903 must be followed to arrest a person out of India.

* Dr.K.V.K.Santhy,Asst.Professor,NALSAR University of Law ,Justice City, Shamirpet,Hyderabad. 500-027 Email id :- santhy.nalsar@gmail.com
** Deepak Miglani Advocate Delhi High Court Email id :- deepakmiglani@hotmail.com

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`Top executives liable for cheque bounce`

Top executives of a company, including the director or managing director in charge of the organisation, are liable for prosecution if a cheque signed by them bounces due to insufficient funds, the Supreme Court has said.
The liability can be fastened on the top executives when the complainant makes a specific averment (charge) against such individuals in his complaint, a bench of Justices Tarun Chatterjee and HS Bedi said.
The apex court passed the ruling while dismissing an appeal filed by the managing director of a company seeking to quash summons issued against him by a Maharashtra trial court in a cheque bounce case.
Tata Finance Ltd had filed cases against Paresh Rajda and Vijay Shroff, managing director and director of a company respectively, after a cheque of Rs 1 lakh issued by the duo bounced due to insufficient funds.
The Bombay High Court dismissed Rajda's plea to quash the summons, upon which he appealed in the apex court.
Interpreting Section 141 of the Negotiable Instruments (NI) Act and its earlier rulings, the apex court said it was necessary to specify in a complaint that at the time of the commission of the offence the person accused was in charge of the organisation and responsible for the conduct of its business.
"This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment, the requirements of Section 141 cannot be said to be satisfied," the apex court said recalling its observation in the SMS Pharmaceuticals case.
However, the apex court said, in a cheque bounce case a person is not liable for prosecution merely because he is a director in the company that issued the cheque.
A director in a company cannot be deemed to be in charge of and responsible for the conduct of the company's business, the bench said.
According to the apex court, in the present case the perusal of the complaint revealed that the accused were in charge and responsible for the conduct of the business and hence could not escape the liability for issuing a cheque that bounced due to insufficient funds.
"We are of the opinion that at a stage where the trial has not yet started, it would be inappropriate to quash the proceedings against them," the apex court observed while dismissing the appeal.

With Thanks from Buisness Standard

Source:- Business Standard 21st May 2008 New Delhi P. 1

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SC gives no relief to repeat child abuser

Emboldened by the light sentences he got for two earlier rapes, a serial child rapist went on to violate and kill two more minors in cold blood soon after he had served out the prison terms. The SC recently ruled that death was the only punishment for the pervert. Mohan Anna Chavan was no ordinary criminal. He was convicted in 1989 and sentenced to two years and 10 years by trial courts in Thane and Satara respectively for raping two minor girls in separate incidents. He came out of prison in July 1999 after serving the prison term, but without leaving behind his depravity.

In December 1999, five months after his release from prison, he set his eyes on two more young girls — Neelam and Gauri — and lured them to a secluded place promising them sweets. He raped the children and murdered them one after the other. He threw Neelam’s body into a well in a paddy field and concealed Gauri’s body after strangulating her.

The villagers, who had seen the children last in his company, spotted him the next morning and captured him. The police was called. The accused allegedly confessed to the crime and even helped recover the bodies.

Unlike the last time when he got away lightly, a Satara trial court considered the circumstancial evidence against Chavan to be a complete chain pointing to the guilt of the accused and awarded him death sentence classifying the case under “rarest of rare” category. The Bombay high court affirmed the death sentence finding the evidence strong enough to nail the convict for the ghastly crime.

Rejecting Chavan’s appeal against conviction and death sentence, a three-judge Bench of the apex court comprising Justices Arijit Pasayat, P Sathasivam and M K Sharma said, “The case at hand falls in the rarest of rare category. The past instances highlighted above, and the depraved acts of the accused call for only one sentence that is death sentence.” It said undue sympathy to impose adequate sentence would do more harm to the justice system and undermine public confidence in the efficacy of law. “It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed,” said Justice Pasayat, writing the unanimous judgment for the Bench.

The court said leniency in imposition of sentence without considering its effect on the social order could be a futile exercise. “The social impact of the crime, for example where it relates to crime against women other offences involving moral turpitude which have great impact on social order and public interest, cannot be lost sight of and require exemplary treatment,” the bench said.

The Times of India 20 May 2008 P. 15 Delhi
With thanks from The Time of India
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