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Law Firm Internship Work, Assignments of Law of Evidence

Amity University - MumbaiLaw of Evidence

CASE ANALYSIS OF VARIOUS CASE LAWS

Typology: Assignments

2020/2021

Uploaded on 06/15/2021

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CASE – VINUBHAI HARIBHAI MALVIYA VS. STATE OF GUJARAT
Decided On - 16th October 2019
Bench: Hon’ble R.F. Nariman J., Hon’ble Suryakant J. and Hon’ble Ramasubramanian J.
Facts: In the present case, FIR was filled pursuant to which an investigation was conducted by
the police which resulted in the charge sheet. The summons were served to the accused and
accused persons appeared before the magistrate. The accused no. 1 i.e. Vinubhai Haribhai
Malviya filed an application for further d investigation under section 173 (8) of CrPC, which was
dismissed.
Issues Involved:
1. Whether magistrate can order further investigation under section 173(8) of the Criminal
Procedure Code, 1973, after filing of charge-sheet before him?
2. If the Further investigation can be ordered then till what stage magistrate can order the
further investigation in a criminal proceeding?
Ratio Decidendi:
For the First issue Hon’ble Supreme Court Observed the following:
Article 21 of the Constitution of India enshrines and guarantees the right of life and personal
liberty to a person. It is a fundamental right of a person which can only be denude by following
the procedure established by law in demand of the fair trial which assures the safety of the
accused. The assurance of a fair trial is stated to be the first imperative of the dispensation of
justice. Article 21 of the Constitution of India makes it clear that clear that the procedure in
criminal trials must be --right, just and fair and not arbitrary, fanciful or oppressive. (As held in
Mrs. Meneka Gandhi v. Union of India & Anr. (1978) 1 SCC 248).
Secion 156(3) of CrPC is also based on the principle of just and fair trial as it ensures proper
investigation by the police in sense of the fundamental right given under article 21 of the
Constitution of India. Therefore, the power given to a magistrate under section 156(3)) CrPC is
very wide.
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1 st^ CASE – VINUBHAI HARIBHAI MALVIYA VS. STATE OF GUJARAT Decided On - 16th^ October 2019 Bench : Hon’ble R.F. Nariman J., Hon’ble Suryakant J. and Hon’ble Ramasubramanian J. Facts: In the present case, FIR was filled pursuant to which an investigation was conducted by the police which resulted in the charge sheet. The summons were served to the accused and accused persons appeared before the magistrate. The accused no. 1 i.e. Vinubhai Haribhai Malviya filed an application for further d investigation under section 173 (8) of CrPC, which was dismissed. Issues Involved:

  1. Whether magistrate can order further investigation under section 173(8) of the Criminal Procedure Code, 1973, after filing of charge-sheet before him?
  2. If the Further investigation can be ordered then till what stage magistrate can order the further investigation in a criminal proceeding? Ratio Decidendi: For the First issue Hon’ble Supreme Court Observed the following: Article 21 of the Constitution of India enshrines and guarantees the right of life and personal liberty to a person. It is a fundamental right of a person which can only be denude by following the procedure established by law in demand of the fair trial which assures the safety of the accused. The assurance of a fair trial is stated to be the first imperative of the dispensation of justice. Article 21 of the Constitution of India makes it clear that clear that the procedure in criminal trials must be --right, just and fair and not arbitrary, fanciful or oppressive. (As held in Mrs. Meneka Gandhi v. Union of India & Anr. (1978) 1 SCC 248). Secion 156(3) of CrPC is also based on the principle of just and fair trial as it ensures proper investigation by the police in sense of the fundamental right given under article 21 of the Constitution of India. Therefore, the power given to a magistrate under section 156(3)) CrPC is very wide.

It is the duty of the magistrate to ensure that a proper investigation should be conducted by the police officer and to order such investigation the magistrate concedes all the necessary powers, which may include incidental and implied powers, from article 21 of the Constitution of India, which also includes ordering of the investigation after a report received by a magistrate under section 173(2) and which power would continue with such magistrate till the commencement of the trial. The word “Investigation” used in CrPC is defined in section 2(h) which includes “all” proceedings for the collection of evidence conducted by a police officer which also includes the proceedings under sections 156(3) and 173(8) of the CrPC, in the form of proper and further investigation. The background of the CrPC clearly suggests that section 173(8) was a very important addition under the Code of 1973 which was not present in the earlier the Code of 1898. Also the definition of the investigation earlier in the Code of 1973 does not include the words- “all proceeding” which were later on added in the Code of 1973. The intention of the legislature, by this modification, appeared clear to comprise all the proceedings of investigation, including the further investigation under section 173(8) CrPC. Thus a Magistrate who is empowered to order proper investigation under 156(3) can also order further investigation under section 173(8) of the Code, 1973. For the Second Issue Hon’ble Supreme Court held the following: While answering the second question the Hon'ble Supreme Court observed that the investigation can ordered at any stage before the commencement of trial. The Hon'ble Bench further explained that a criminal trial does not begin after cognizance is taken by a magistrate. It begins when the charges are framed after the whole investigation gets complete and magistrate is satisfied that there is no need of further investigation. Therefore, the magistrate can order further investigation even after taking cognizance till of framing of charge. The Magistrate can also use exercise these powers suo moto, subject to facts and circumstance of each case.

Ratio Decidendi: In this case, accused were charged with Section 493 of the Indian Penal Code and section 3 read with Section 4 of the Dowry Prohibition Act. The Bench noted that though the offence in question are non- compoundable but the power of the High Court under Section 482 CrPC quash the Proceedings in such offences is well recognised by the various decisions of the Supreme Court and the issue is no longer Res Integra. The Apex Court held that offences for which the appellants have been charged are in fact offences against society and not private in nature. Such offences have serious impact upon society and continuance of trial of such cases is founded on the overriding effect of public interests in punishing persons for such serious offences. It is neither an offence arising out of commercial, financial, mercantile, partnership or such similar transactions or has any element of civil dispute thus it stands on a distinct footing. In such cases settlement even if arrived at between the complainant and the accused, the same cannot constitute a valid ground to quash the F.I.R. or the charge sheet. Thus the High Court cannot be said to be unjustified in refusing to quash the charge sheet on the ground of compromise between the parties. Referring to Section 493 of IPC, the bench noted that essence of the offence is the practice of deception by a man on a woman as a consequence of which led to believe that she is lawfully married to him although she is not and then make her cohabit with him. Explaining it further, the bench said that Deceit said to be a false statement of fact made by a person knowingly and recklessly with the intent that it shall be acted upon by the another who on believing the same after having acted thereupon suffers an injury. It is an attempt to deceive and includes such declaration and statement that misleads the others or causes him to believe which otherwise is false and incorrect. In other words, to constitute an offence under Section 493 I.P.C., the allegations in the FIR must demonstrate that the appellant had practiced deception on the daughter of the complainant causing a false belief of existence of lawful marriage and which led her to cohabit with him. Perusing the FIR, the bench said that the allegations made therein can be said to constitute an offence under Section 493 IPC. It said that there are no allegation of any inducement or any deceit to make the victim believe that she was lawfully married to the appellant, which mislead

her to have sexual intercourse with the accused appellant No.l. Only allegations in the First Information Report in this regard are that "after the marriage was settled, the appellant no.l started visiting the house of the complainant frequently and would mislead and instigate his daughter that relation is final and only Feras' remains to be performed. On the fateful day, i.e., 16.08.2013, the appellant no.l took leave and enticed and instigated his daughter took her to his room and promising that she is being his wife established physical relations. A perusal of the averments would go to show that ingredients to constitute an offence under Section 493 I.P.C. are missing from the averments. The allegations do not even prima-facie, cull out any inducement of belief in the victim that she is lawfully married to the appellant no.1 and on account of this deceitful misstatement, the victim cohabited with the accused. Since the essential ingredients to constitute an offence under Section 493 I.P.C. are missing from the allegations made in the F.I.R., offence under the said Section cannot be said to be made out against the appellants. However the court noted that the allegations of the F.I.R. clearly go to show that a demand of dowry of Rs.5 Lakhs was made by the accused from the complainants and thus it cannot be said that no offence under the Dowry Prohibition Act are made out against them. Partly allowing the appeal, the bench said that In view of the above facts and discussions, The Court held that insofar as offence 493 I.P.C. is concerned, since F.I.R. does not disclose the commission of the offence under the and thus the continuance of the criminal prosecution under said section would amount to abuse of process and the order of the High Court to that extent is liable to be set aside. However, in do far an offence against the appellants under Section 3/4 of the Dowry Prohibition Act is concerned, since the allegations disclose the commission of the cognizable offence in the F.I.R. , it is not a fit case to exercise power under Section 482 of CrPC and to quash the criminal proceedings against the appellants for the said offence.