So far as Section 366 of the Indian Penal Code is concerned, the essential ingredients are: (i) kidnapping or abducting any woman; (ii) such kidnapping or abducting must be (a) with intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will; or (b) in order that she may be forced or seduced to illicit intercourse. The second part of the section requires two things (1) By criminal intimidation or abuse of authority or by compulsion inducing any woman to go from any place; and (2) such going must be with the intent that she may be, or with knowledge that it is likely that she will be forced or seduced to illicit intercourse, with some person. The word ‘woman’ has been defined in Section 10 of the Indian Penal Code. It includes a minor female. If the girl was eighteen or over, she could only be abducted and not kidnapped, but if she was under eighteen she could be kidnapped as well as abducted if the taking was by force or the taking or enticing was by deceitful means. The intention of the accused is the basis and the gravamen of offence under Section 366. The volition, the intention and the conduct of the woman do not determine the offence; they can only bear upon the intent with which the accused kidnapped or abducted any woman and the intent of the accused is the vital question for determination in each case. Kidnapping and abduction are two distinct offences. The ingredients of the two offences are entirely different. Kidnapping except kidnapping from India is an offence against guardianship. It consists of enticing or removing a girl from the keeping of the lawful guardianship without her consent. Abduction is an offence as defined in Section 362 of the Indian Penal Code when a person is by force compelled or by deceitful means induced to go from any place. In abduction the person abducted may be a minor or a major. Kidnapping is punishable per se in terms of Section 363 of the Indian Penal Code. Abduction on the other hand is not punishable per se and is punishable only when accompanied by a particular purpose as contemplated in Sections 364 to 366 of the Indian Penal Code. But as kidnapping also may be for the same purposes, Sections 364 to 366 of the Indian Penal Code deal with both kidnapping and abduction for the purposes stated therein and prescribe the punishments. Arvind v. State of U.P., 2019 (108) ACC 509.
Conviction – On the Basis of Circumstantial Evidence
The Hon’ble Apex Court in Sharad Birdhi Chand Sharda v. State of Maharashtra, (1984) 4 SCC 116, elaborately considered the standard of proof necessitated for recording a conviction on the basis of circumstantial evidence and laid down the five golden principles of standard of proof required to be established in such a case, which are as follows:
- The circumstances from which the conclusion of guilt is to be drawn should be fully established;
- The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, these should not be explainable on any other hypothesis except that the accused is guilty;
- The circumstances should be conclusive in nature and tendency;
- They should exclude every possible hypothesis except the one to be proved; and
- There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the acts must have been committed by the accused. Ramesh Dasu Chauhan State of Maharashtra, 2019 (108) ACC 698.
Word Instigate – Meaning of
In Ramesh Kumar v. State of Chhatisgarh, 2001 (43) ACC 1140 (SC) the Hon’ble Apex Court has clarified the word ‘instigate’ by mentioning therein that the instigation is to goad, urge forward, provoke, incite or encourage to do “an act”. To satisfy the requirement of “instigation”, though it is not necessary that actual words must be used to that effect or what constitutes “instigation” must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. Where the accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, in which case, an ‘instigation’ may have to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation. Ajay Kumar Mishra v. State of U.P.¸ 2019 (107) ACC 424.
Interested Witness – A Close Relative
In a case where the incident had taken place in the presence of relatives, it is only relatives, who will come forward and depose against the commission of the said crime. Law in respect of the examination of interested witnesses and their deposition in the court is well settled. Relationship is not a factor to affect credibility of a witness. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. A witness who is a relative of the deceased or victim of the crime cannot be characterized as ‘interested’. The term ‘interested’ postulates that the witness has some direct or indirect ‘interest’ in having the accused somehow or other convicted due to animus or for some other oblique motive. A close relative cannot be characterized as an ‘interested witness’. He is a ‘natural witness’. His evidence, however, must be scrutinized carefully. If on such scrutiny his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the ‘sole testimony’ of such witness. Iqbal Khan v. State of U.P., 2019 (107) ACC 516.
CRPC Section 133 – Removal of Public Nuisances
Removal of Public Nuisances under Section 133 CRPC would mean removal of nuisances which is to the public at large. The elaboration of such nuisances in clauses (a), (b), (c), (d), (e) and (f) of sub-section (1) of Section 133 is nothing but the elaboration of different kind of public nuisances. Clause (d) of sub-section (1) of Section 133, inter alia, provides that a building or a structure when is in a condition that is “likely to fall, and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by”, only then the jurisdiction under Section 133 CRPC can be exercised. The important words here are that a structure or a building is in such a condition that in case it falls, it will cause injury to “persons living or carrying on business in the neighbourhood or passing by”. It does not say that it will cause injury to persons living inside that particular building. That would not just be a strained but clearly a wrong interpretation of the provision. Abdul Hamid v. State of Uttarakhand, 2018 (103) ACC 904.
Grant of Maintenance to Wife – A measure of Social Justice
In Chaturbhuj v. Sita Bai, 2007 (Suppl.) ACC 537, it was held as under:
“Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children and as held in Ramesh Chander Kaushal v. Veena Kaushal, (1978) 4 SCC 70, falls within Constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat, 2005 (51) ACC 923.
A division bench of Madhya Pradesh High Court in the case of Durga Singh Lodhi v. Prembai and Others, 1990 Cr. L.J. 2065, has held that mere absence of visible means or real estate will not entitle such a person to escape the liability to pay maintenance awarded under section 125(1) as even at the stage of enforcement of the order under Section 125(1), an able bodied healthy person capable of earning, must be subjected to pay maintenance allowance. If, with this visible capacity to earn, he avoids payments, it has to be held that he has so done for no sufficient cause. If such a person avoids to discharge that obligations despite issuance of a distress warrant, he can be sentenced to imprisonment for a term specified in sub – section (3) of Section 125 Cr.PC.
In Shamima Farooqui v. Shahid Khan, (2015) 5 SCC 705, it was held thus:
“A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125, Cr.P.C., it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or beggar.” Smt. Surbhi Agarwal v. State of U.P., 2017 (98) ACC 471.
Matrimonial Dispute – Casual Reference of Names of Family Members
Mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the house hold in the domestic quarrel taking place in a matrimonial dispute especially if it happens soon after the wedding. Rajendra Sood v. State of U.P., 2017 (98) ACC 521.
Criminal Conspiracy – Proof of
In Mir Nagvi Askari v. CBI, (2009) 15 SCC 643, it was ruled that while drawing an inference from the materials brought on record to arrive at a finding as to whether the charge of criminal conspiracy had been proved or not, it must be borne in mind that a conspiracy is hatched in secrecy and it is difficult, to obtain direct evidence to establish the same.
In Mohd. Amin v. CBI, (2008) 15 SCC 49, it was held as under:
“That for proving a charge of conspiracy, it is not necessary that all the conspirators know each and every detail of the conspiracy so long as they are co-participators in the main object of conspiracy. It is also not necessary that all the conspirators should participate from the inception of conspiracy to its end. If there is unity of object or purpose, all participating at different stages of the crime will be guilty of conspiracy.” Harpal Singh v. State of Punjab, (2017) 1 SCC 734.
Accused – Entitled to Get Copy of FIR
An accused is entitled to get a copy of the first information report at an earlier stage than as prescribed under Section 207 CrPC.
An accused who has reasons to suspect that he has been roped in a criminal case and his name may be finding place in a first information report can submit an application though his representative/agent/pairokar for grant of a certified copy before the police officer concerned or to the Superintendent of Police on payment of such fee which is payable for obtaining such a copy from the court. On such application being made, the copy shall be supplied within twenty four hours.
Once the first information report is forwarded by the police station to the Magistrate concerned or any Special Judge, on an application being filed for certified copy on behalf of the accused, the same shall be given by the court concerned within two working days. The aforesaid direction has nothing to do with the statutory mandate inhered under Section 207 CrPC.
The copies of FIRs, unless the offence is sensitive in nature, like sexual offences, offences pertaining to insurgency, terrorism and of that category, offences under the POSCO Act and such other offences, should be uploaded on the police website, and if there is no such website, on the official website of the State Government, within twenty four hours of the registration of the first information report so that the accused or any person connected with the same can download the FIR and file appropriate application before the court as per law for redressal of his grievances. Youth Bar Association of India v. Union of India, (2016) 9 SCC 473.
Grant of Bail – Factors to be considered
In Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528, it was held as under:
“The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:
- The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
- Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
- Prima facie satisfaction of the court in support of the charge.
The Hon’ble Apex Court in Rajesh Ranjan Yadav v. CBI, (2007) 1 SCC 70, balanced the fundamental right to individual liberty with the interest of the society in the following terms:
“While it is true that Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute and reasonable restrictions can be placed on them. While it is true that one of the considerations in deciding whether to grant bail to an accused or not is whether he has been in jail for a long time, the court has also to take into consideration other facts and circumstances, such as the interest of the society.”
In Ash Mohammad v. Shiv Raj Singh, (2012) 9 SCC 446, the Hon’ble Apex Court in the same vein had observed that though the period of custody is a relevant factor, the same has to be weighed simultaneously with the totality of the circumstances and the criminal antecedents. That these are to be weighed in the scale of collective cry and desire and that social concern has to be kept in view in juxtaposition to individual liberty, was underlined. Chandrakeshwar Prasad v. State of Bihar, (2016) 9 SCC 443.
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