2 October 2024 - Legal Updates

1. Supreme Court Sets Aside Madras HC Judgment, Which was signed & Uploaded After Judge’s Retirement

The Supreme Court restored a quashing petition related to a corruption case to the file of the Madras High Court, nothing that the judgment in the case was signed and uploaded after the judge, Justice T. Mathivanan, had retired.

Justice Abhay Oka, after dictating the order, emphasized, there should not be a single incident like this referring to the issuance of the detailed judgment after the judge’s retirement.

A bench of Justice Abhay Oka and Justice Augustine George Masih noted the report of the registrar of the personal assistance section of the Madras HC personal assistance section of the Madras HC that indicated that the detailed judgment was received from the judge after his retirement on May 26, 2017.

Faced with this situation we have no option but to set aside the judgment dated 15th May, 2017 and restore CRL OP No. 2245 of 2017 to the file of the High Court , the court stated in its order.

The CBI filed the present SLP challenging the quashing of a disproportionate assets case against an IRS officer. The corruption case involves an IRS officer from the 1999 batch, who was accused of amassing assets worth over Rs. 3.2 crores, allegedly disproportionate to known sources of income, between January 2002 and August 2014.

The Court had earlier sought a report following CBI's claim that the judge had pronounced a one-line order in Court quashing the case but the certified copy of the judgment was made available after the judge's retirement. Further, the CBI claimed that the Chief Justice of the HC had ordered the case to be heard de novo.

Today, the Supreme Court referred to the report submitted by the Registrar General of the Madras HC. The report indicated that the case bundle, along with the detailed judgment dated May 15, 2017, was received by the Personal Assistance Section on July 17, 2017, and was sent for uploading on July 18, 2017. The judgment was eventually uploaded on July 20, 2017. A report from the Joint Registrar of the Personal Assistance Section was also attached to the Registrar's submission.

The report indicated the case in question was not among the nine cases previously ordered for a de novo hearing by the Chief Justice.

However, considering the circumstances, the Supreme Court found it necessary to set aside the judgment dated May 15, 2017, and restore the quashing petition to the file of the Madras High Court.

The Court directed that the restored petition be listed before the roster bench of the HC on October 21, 2024, and that the petitioners and respondents be present on that day. No further notice will be issued. On the scheduled date, the High Court was ordered to fix a date for the final hearing of the case, taking into account that the petition is from 2017.

The Supreme Court also held that any interim relief granted until May 15, 2017, would continue until the restored petition is decided by the HC. The Court made it clear that it had not made any determinations on the merits of the case and left all issues open for the HC to decide.

The Supreme Court has previously dealt with similar issues. Recently, a bench led by Justice Oka quashed another judgment by Justice Mathivanan on the grounds that the judge had released a detailed judgment five months after his retirement, which the Court described as "gross impropriety."

Case- State through the Inspector of Police CBI/ACB/Chennai vs. S. Murali Mohan

2. Sec. 111 BNS | State Can’t Arrest And Fish For Evidence of “Organised Crime” Later: Punjab & Haryana High Court

The Punjab & Haryana High Court has held that state cannot arrest a person for organised crime under section 111 of the Bhartiya Nyaya Sanhita (BNS) without having any prima facie admissible evidence against him.

The new law BNS, which replaced Indian Penal Code added organised crime as an offence under section 111, and if the crime results in the death of any person, maximum prescribed punishment is death penalty.

Organised crime is defined as- Any continuing unlawful activity including kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offence, cyber-crimes, trafficking of persons, drugs, weapons or illicit goods or services, human trafficking for prostitution or ransom, by any person or a group of persons acting in concert, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence, threat of violence threat of violence, intimidation, coercion, or by any other unlawful means to obtain direct or indirect material benefit including a financial benefit, shall constitute organised crime.

Justice Anoop Chitkara said, "Without legally admissible accusations, allegations, or evidence, the State cannot arrest a suspect to fish evidence against them or use such a suspect as custodial bait by any hook, line, and sinker to bring the case into the fold of S. 111 of BNS. Prima facie evidence must be admissible, and if such evidence is deemed inadmissible, the entire foundation will collapse."

In the present case, the accused, Suraj Singh filed the plea seeking anticipatory bail under Section 482 of Bharatiya Nagarik Suraksha Sanhita, 2023, [BNSS]. According to the reply filed by the police, it was stated in a disclosure statement by another accused that Singh allegedly illegally purchased a gun to commit organised crime and also committed various organised crime.

An FIR was lodged under Sections 111, 310 (4), 310 (5) of BNS and Sections 25, 27 Arms Act, 1959 against Singh.

Perusing the reply, the Court noted that, "During his (co-accused) custodial investigation, the investigation reveals that accused Karan Singh disclosed to the Police officer that he had purchased the pistol and cartridges from his school-time friend Pardeep Singh alias Kaka, who had further purchased these from the petitioner. After that, on numerous occasions, petitioner Suraj borrowed the said pistol. Based on this disclosure statement, the Investigator had arraigned the petitioner, Suraj, as an accused."

After examining the submissions, the judge referred to Section 23 of Bharatiya Sakshya Adhiniyam, 2023, [BSA], which states- no confession made to a police officer shall be proved as against a person accused of any offence.

The proviso of the Section states that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact discovered, may be proved.

The judge opined that perusal of the reply does not point towards the discovery of any fact to bring the confessions made by the co-accused within the purview of the Proviso to Section 23 of the BSA.

"Thus, the disclosure statement made by the accused, Karan Singh, cannot be proved in evidence and thus has no evidentiary value," it added.

The Court further noted that the other evidence is the confidential information received by the police from its sources who had informed about the accused, initially named in FIR, who formed a gang and had already indulged in criminal activities, were hatching a conspiracy to commit offences.

While analysing the role of the petitioner alleged by the State, the Court found that the initial evidence was based on prior information of an informer, which is a privileged communication under Section 131 BSA and, thus, cannot be proved. "Section 131 is a privilege granted to the officers mentioned in S. 131 BSA, and thus, they cannot be compelled to name their source. Thus, this evidence can also not be proved."

"The other evidence is a confession of the co-accused in custody before the Investigators, which is hit by S. 23(1) and 23 (2) of BSA, 2023. Under S. 23 of BSA, 2023, neither a confession made to a police officer can be proved against any person accused of any offense, nor a confession by an accused to a police officer can be proved except when made before a Magistrate, and if done, it would imply that such confession shall be inadmissible in evidence," it added.

Prima Facie Evidence Should Be Admissible For Arresting Under Organised Crime

Perusing Section 111 of the BNS, the Court said that, "To bring an offense into the four corners of an organized crime, the offense must fall under a category described in S. 111 of BNS, 2023. The primafacie evidence must be legally admissible to constitute any continuing unlawful activity to constitute an organized crime as defined in S. 111 BNS."

Without legally admissible prima facie evidence, the State cannot make any suspect undergo custodial interrogation to hunt for such evidence against the suspect or others. The evidence must be gathered first to make out a prima facie case within the scope of S. 111 of BNS, and such evidence alone would justify custodial interrogation to carry out further investigation, added the Court.

In the light of the above, the Court said that there would be no justifiability for custodial interrogation or the pre-trial incarceration at this stage.

Consequently, the plea was allowed.

Case- Suraj Singh @ Noni vs. State of Punjab

3. ‘Quite Close To Cannibalism’ Bombay High Court Upholds Death Sentence of Man For Killing His Mother, Eating Her Organs

The Bombay High Court upheld the death sentence awarded to a man, who brutally killed his own mother and later ate her organs.

A division bench of Justices Revati Mohitedere and Prithiviraj Chavan pronounced the judgment in the open court while the appellant Sunil Kuchkoravi was produced through video conferencing facility.

This is a rarest of rare case, wherein the appellant not only killed his mother but removed her organs like brain, heart etc and was about to cook the same on a stove. Thus, we have upheld your death sentence, as awarded to you by the session court, Justice Chavan told Kuchkoravi.

In its 71-page judgment, the bench after detailing the manner in which the convict killed his mother, eviscerated her organs and was about to 'cook' some of them by applying salt and chilly powder, said that his conduct indicated "pathological cannibalism."

"The act of the convict was quite close to cannibalism," the judges said.

Further, the judges expressed shock over the defence of the convict that since he was habitual to consume flesh of cats and pigs, therefore, perhaps he might have committed the said offence.

"To release such a person would amount to giving him a free ride and freedom to commit similar offence qua the members of the society," the judges underscored.

The judges highlighted the tortured meted out by the convict to the old fragile defenceless mother, who had absolutely no chance to defend herself from a well-built hefty son to whom she used to provide meals twice a day, in view of the fact that wife and children of the convict had already abandoned him, perhaps because of his such conduct.

"The act of the convict in committing the murder of his mother even cannot be compared with an act of a butcher, who chops flesh. The conduct of the convict even cannot be regarded as a 'Betrayal of Trust' of his mother as it would be too small a word to describe what he did," the order authored by Justice Chavan reads.

The bench has said that giving a life sentence to the convict would pose a threat to inmates in the jail, where he will be lodged and later to the society.

"Apart from the extreme brutality, cruelty and barbarism with which the convict had murdered his mother in a cold blooded manner, one cannot turn nelson's eye that his conduct was akin to cannibalism and, therefore, he could be a potential threat and danger to the inmates in the jail, in case, sentence of life imprisonment is awarded. A person, who could commit such a heinous crime by killing his mother, can do so with anyone else, including his own family," the judges underscored.

The judge noted that the convict did not show any kind of remorse and also the bleak chances of rehabilitation in the society.

"He is not at all fit for any kind of reformatory and rehabilitation scheme. Life imprisonment would be completely futile as the sentencing aim of reformation is completely unachievable. During interaction with the convict through Video Conferencing, we do not find any remorse, penitence or repentance on his face. Normally, a deep regret should have come from him by a deep sense of guilt. He just feigned innocence contending that he does not remember anything," Justice Chavan has said in the order.

Notably, the appellant Sunil Kuchkoravi was convicted and sentenced to death by a session’s court in Kolhapur in July 2021 saying that the incident had shaken the "collective conscience of the society". The sessions court further observed that the present case was associated with "extreme brutality and shamelessness".

Kuchkoravi killed his mother in August 2017 and soon after that a neighborhood child found him standing near his mother's body, covered in blood stains. He was thereafter, arrested by the police.

According to the prosecution case, Kuchkoravi's wife left him and took along their three daughters and a son, after being unable to bear the constant torture he subjected her to due to his drinking habits. He therefore, lived with his old mother, who was dependent on Rs 4,000 which she got as a pension. The accused often quarrelled with the old mother, who provided him two meals a day and he event assault her after drinking.

Case- State of Maharashtra vs. Sunil Kuchkoravi