000071. Live-in partners who have attained majority cannot be separated by Habeas Corpus writ, Kerala High Court

The Kerala High Court today held that High Court’s power to issue a writ of Habeas Corpus cannot be used to separate live-in partners, provided they have attained the age of majority.

A judgment to that effect was passed by a Bench of Justices V Chitambaresh and KP Jyothindranath in a petition filed by the father of a 19-year-old woman, praying for issuance of a Habeas Corpus writ.

The woman was living with her 18-year-old partner. Her father had moved the Court contending that his daughter was in the illegal custody of the respondent. It was his contention that since the respondent has not attained the age of 21 years, he was a child as defined by the Prohibition of Child Marriage Act, 2006. It was, therefore, his argument that there could be no valid marriage between the detenue and the respondent.

Further, he pointed out that a child born out of such a union would be an illegitimate child. He also stated before the Court that he was willing to allow the detenue to go with the respondent after a legal marriage, but not under a live-in relationship.

The detenue and the respondent submitted that they were in love with each other since school days, and had attained majority.

The Court, after considering the submissions of the parties, noted that the detenue was living with the respondent out of her own volition. Therefore, it held that she had every right to live with the respondent even outside the wedlock, since live-in relationships were “statutorily recognised”.

The Court also cited its own judgment in Nandakumar v. State of Kerala and the Supreme Court judgment in the Hadiya case in this regard.

Noting that live-in relationships have become common in our society, the Court held that such live-in partners cannot be separated by the issue of a writ of Habeas Corpus, provided they have attained the age of majority.

“We cannot close our eyes to the fact that live-in relationship has become rampant in our society and such living partners cannot be separated by the issue of a writ of habeas corpus provided they are major.”

The Court also made it clear that Constitutional courts are bound to respect the right of a major to have a live-in relationship even though the same may not be palatable to orthodox sections of the society.

“The Constitutional Court is bound to respect the unfettered right of a major to have live-in relationship even though the same may not be palatable to the orthodox section of the society.”

It, therefore, dismissed the writ petition declaring that the detenue is free to live with the respondent or marry him later on his attaining the marriageable age.

000070. The Bar Council of India (BCI) introduces a new rule

Newbie Advocated Banned from Starting Practise in Supreme Court: BCI 

The Bar Council of India (BCI) introduces a new rule that new advocates can’t start practicing in the Supreme Court right away. BCI says that all the advocates should have at least 5 years of legal experience in the lower court before appearing in the Supreme Court. The BCI invents a new Certificate of Practice and Renewal Rules, 2014 which bans new advocates to practice first up in the Supreme Court except the advocates who has two years of practice in a trail court and three years of years of service in the High Court in India. 

The update of the BCI reads as follows: The 5-year experience requirement, which is in “Rule 7 of Chapter III shall come into force on such date as the Bar Council of India may, by notification in the Gazette of India, appoint in this behalf”. 

This rule reminds that the certificate of practice needs to be renewed every five years. So every lawyer has to submit an application at the relevant state bar council six months before the current certificate expires. 

An update of BCI has been released which says: Within six months of 29 October 2014 (the date of the notification), under Rule 8 all advocates who graduated before 2010 must get a certificate of practice from the BCI, which will cost Rs 500 (Rs 400 to the respective state bar council and Rs 100 to the BCI). 

The rules also make note of the shocking proportions of lawyers who leave the profession seeking better prospects and their names are still on the rolls of the State Bar Councils. 

At present, all types and categories of advocates are allowed to practice and appear before the Supreme Court. But the Supreme Court Advocates on record (AOR) are only permitted to appear, act and plead for a petitioner before the apex court. The lawyers who pass the Supreme Court AOR exam are eligible for attempt practice in the Supreme Court chambers for at least five years. The Supreme Court Rules 2013 already have banned the advocated enrolled for less than one year from appearing before the Supreme Court and they are just permitted to seek date, time, adjournment or other brief orders. 

000069. Differences between CID, CB-CID and CBI:

CID (Crime Investigation Department):

It is an investigation and intelligence department of state police.

CBI (Central Bureau of Investigation):

It is an agency of the Central  Government of country which looks after the offences regarding national  interest like economic and corruption cases etc.

Key differences Between CID and CBI:

The major difference between CID and CBI is that the CID works within the state, whereas the CBI works across the nation.

The area of operation of CID is small while the area of operation of CBI is large.

CID deals with criminal cases within the state including riot cases,  murder cases, etc. but the CBI deals with economic and corruption  cases, fraud, embezzlement across the country including interstate  ramifications too.

After graduation a candidate has to the join police force thereafter  he has to pass a criminology exam for getting into CID but for getting  into CBI he has to pass CGPE conducted by SSC board.

CID, established in 1902 by the British Government, while CBI was established in 1941 as the Special Police Establishment.

CB CID (Central Branch CID):

The CID (crime investigation department) has several branches which work from state to state. These branches include:

CB- CID

Anti-Human Trafficking & Missing Persons Cell

Anti-Narcotics Cell

Finger Print Bureau

CID

Anti-Terrorism wing

CB-CID is a special wing in the CID headed by the Additional Director  General of Police (ADGP) and assisted by the Inspector General of Police  (IGP).

Key differences Between CID and CBI

The major difference between the CID and CBI is that the CID works within the state, whereas the CBI works across the nation.

The area of operation of CID is small while the area of operation of CBI is large.

After graduation a candidate has to the join police force thereafter he has to pass a criminology exam for getting into CID but for getting into CBI he has to pass CGPE conducted by the SSC board.

CID deals with criminal cases within the state including riot cases, murder cases, etc. but the CBI deals with economic and corruption cases, fraud, embezzlement across the country including the interstate ramifications too.

CID, established in 1902 by the British Government, while CBI was established in 1941 as the Special Police Establishment.

000068. IMPORTANT COURT TERMS & COURT ABBREVATIONS

ADP :- Assistant Director of Prosecution.

APP :- Assistant Public Prosecutor.

CC No :- Calendar Case. Number.

CJM :- Chief Judicial Magistrate.

DDP :- Deputy Director of Prosecution.

DJ :- District Judge.

DW :- Defense Witness.

FTC :- Fast Track Court.

JM :- Judicial Magistrate.

MC :- Magisterial Clerk.

NBW :- Non Bailable Warrant.

PP :- Public Prosecutor.

PRC No. :- Preliminary Registration Case Number.

PT :- Pending Trial.

PT Warrant :- Prisoner Transfer Warrant.

PW :- Prosecution Witness.

SC No. :- Sessions Case Number.

STC No :- Summary Trial Case Number.

PENDING TRIAL CASE ( PT ) CASE



CASE TYPES 
APPELLATE SIDE 
Main Case Types 

WRIT APPEAL : W.A. 

FIRST APPEAL : A.S. 

SECOND APPEAL : S.A. 

ORIGINAL SIDE APPEAL : O.S.A. 

SPECIAL TRIBUNAL APPEAL : S.T.A. 

CIVIL MISCELLANEOUS APPEAL : C.M.A. 

CIVIL MIS.SECOND APPEAL : C.M.S.A. 

LETTERS PATENT APPEAL : L.P.A. 

SPECIAL TRIBUNAL PETITION : S.T.P. 

CONTEMPT APPEAL : CONT.A. 

CROSS OBJECTION : CROSS.OBJ. 

TRADE MARKS APPEAL : T.M.A. 

TRADE MARKS SECOND APPEAL : T.M.S.A. 

TAX CASES : T.C. 

TAX CASE APPEAL : T.C.A. 

TAX CASE REVISION : T.C.R. 

REFERRED CASE PETITION : R.C.P. 

CIVIL REVISION PETITION : C.R.P. 

CIVIL REVISION PETITION (PD) : C.R.P. (PD) 

MATRIMONIAL CAUSES : MC 

REVIEW APPLICATION : REV.APPL. 


Miscellaneous Case Types 

MISCELLANEOUS PETITION : M.P. 

CAVEAT : CAVEAT 

HABEAS CORPUS PETITION : H.C.P. 

CRL. REVISION CASE : CRL. R.C. 

CRIMINAL APPEAL : CRL.A. 

REFERRED TRIAL : R.T. 

CRIMINAL ORIGINAL PETITION : CRL. O.P. 

REFERENCE CASE : R.C. 


Miscellaneous Case Types 

MISCELLANEOUS PETITION : M.P.   


WRIT SIDE Main Case Types 

WRIT PETITION : W.P. 

WRIT PETITION (MADURAI) : W.P. (MD) 

WRIT PETITION (TRIBUNAL) : W.P. (T) 

REVIEW APPLICATION : REV. APPL.   


Miscellaneous Case Types 

MISCELLANEOUS PETITION : M.P. 


Note: For all cases filed in Madurai Bench, the letters ‘MD’ shall be added in Brackets along side the respective abbreviations. 


ORIGINAL SIDE Main Case Types 

CIVIL SUIT : C.S. 

INSOLVENCY PETITION : I.P. 

INSOLVENCY NOTICE I.N. 

ORIGINAL PETITION : O.P. 

COMPANY PETITION : C.P. 

CONTEMPT PETITION : CONT. PETN 

ELECTION PETITION : ELEC. PETN 

TESTAMENTARY ORIGINAL SUIT : T.O.S. 

ORIGINAL MATRIMONIAL SUIT : O.M.S 

ORIGINAL APPLICATIONS : O.A.   


Miscellaneous Case Types 

ORIGINAL APPLICATION : O.A. 

APPLICATION : APPLICATION 

COMPANY APPLICATION : COM. APPLICATION 

SUB-APPLICATION : SUB-APPLICATION 

EXECUTION PETITION : E.P. 

CAVEAT : CAVEAT

000067. ANTICIPATORY BAIL

Under Section 438 of the Criminal Procedure Code there is a provision for a person to seek ‘Anticipatory Bail’. This means that an individual can seek or request to get bail in anticipation or in expectation of being named or accused of having committed a non-bailable offence. 

Anticipatory bail is meant to be a safeguard for a person who has false accusation or charges made against him/her, most commonly due to professional or personal enmity, as it ensures the release of the falsely accused person even before he/she is arrested. 

How to apply for anticipatory bail?

Contact lawyers in India to apply for pre-arrest notice / notice bail, and anticipatory bail.

Get the lawyer to draft an anticipatory bail mentioning your version of the fact.

Apply at the appropriate Sessions Court.

When the matter comes up for hearing, it is advisable that your lawyer is accompanied by a trusted person.

IMPORTANT POINT ON FILING OF ANTICIPATORY BAIL APPLICATION BEFORE THE SESSIONS COURT:

The anticipatory bail application should be singed by the applicant/accused.

The applicant is also required to swear an affidavit in support of the anticipatory bail application.

Power of Attorney in favour of the counsel is required to be executed and attached along with the anticipatory bail application.

Copy of the FIR which is readable is required to be filed along with the anticipatory bail application.

Copies of all the relevant documents are required to be attached along with the anticipatory bail application.

ANTICIPATORY BAIL APPLICATION FORMAT in INDIA

BEFORE THE COURT OF DISTRICT AND SESSIONS JUDGE, AT (give the name of the district where the bail application is being filed)

IN THE MATTER OF STATE

VS

(Mention the name of the applicant)

FIR Number: (Mention the FIR number)

Under Section: (Mention the sections under which the FIR has been filed)

Police Station: (Mention the name of the Police Station)

APPLICATION U/S 438 CRPC FOR GRANT OF ANTICIPATORY BAIL ON BEHALF OF THE ACCUSED ( name of the applicant of the bail)

MOST RESPECTFULLY SUBMITTED AS UNDER:

1. That the present FIR has been registered on false and bogus facts. The facts stated in the FIR are fabricated, concocted and without any basis.

2. That the police has falsely implicated the applicant in the present case, the applicant is a respectable citizen of the society and is not involved any criminal case.

3. That the facts stated in the complainant against the applicant are civil disputes and does not constitute any criminal offence at all.

4. That the applicant is not required in any kind of investigation nor any kind of custodial interrogation is required.

5. That the applicant is having very good antecedents, he belongs to good family and there is no criminal case pending against them.

6. That the applicant is a permanent resident and there are no chances of his absconding from the course of justice.

7. That the applicant undertakes to present himself before the police/court as and when directed.

8. That the applicant undertakes that he will not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer.

9. That the applicant further undertakes not to tamper with the evidence or the witnesses in any manner.

10. That the applicant shall not leave India without the previous permission of the Court.

11. That the applicant is ready and willing to accept any other conditions as may be imposed by the Court or the police in connection with the case. PRAYER

It is therefore prayed that the court may direct the release the applicant on bail in the event of his arrest by the police.

Any other order which the court may deem fit and proper in the facts and circumstances of the case may be also passed in favor of the applicant.

APPLICANT

THROUGH

COUNSEL

ANTICIPATORY BAIL APPLICATION 

BEFORE HIGH COURT:

IMPORTANT TIPS ON FILING OF ANTICIPATORY BAIL APPLICATION BEFORE HIGH COURT:

The anticipatory bail application should be signed by the applicant/accused. The applicant is also required to swear an affidavit in support of the anticipatory bail application.

Power of Attorney in favour of the counsel is required to be executed and attached alongwith the anticipatory bail application.

Copy of the FIR with its true translation if it is in vernacular is required to be filed alongwith the anticipatory bail application.

Copies of all the relevant documents are required to be attached alongwith the anticipatory bail application.

Certified copies of the orders passed by the Sessions Court rejecting the anticipatory bail application is to be filed along with the anticipatory bail application.

SUGGESTED FORMAT OF THE ANTICIPATORY BAIL APPLICATION TO BE FILED BEFORE THE HIGH COURT IN THE EVENT OF THE APPLICATION FOR ANTICIPATORY BAIL BEING DISMISSED BY THE SESSIONS COURT. 

BEFORE THE HIGH COURT AT (give the name of the High Court where the

anticipatory bail application format India is being filed)

IN THE MATTER OF

STATE

VS

(Mention the name of the accused)

FIR Number: (Mention the FIR number)

Under Section: (Mention the sections under which the FIR has been filed)

Police Station: (Mention the name of the Police Station)

APPLICATION U/S 438 CRPC FOR GRANT OF ANTICIPATORY BAIL ON BEHALF OF THE ACCUSED ( name of the applicant of the bail)

MOST RESPECTFULLY SUBMITTED AS UNDER :-

1. That the present FIR has been registered on false and bogus facts. The facts stated in the FIR are fabricated, concocted and without any basis.

2. That the police has falsely implicated the applicant in the present case, the applicant is a respectable citizen of the society and is not involved any criminal case.

3. That the facts stated in the complainant against the applicant are civil disputes and does not constitute any criminal offence at all.

4. That the applicant is not required in any kind of investigation nor any kind of custodial interrogation is required.

5. That the applicant is having very good antecedents, he belongs to good family and there is no criminal case pending against them.

6. That the applicant is a permanent resident and there are no chances of his absconding from the course of justice.

7. That the applicant undertakes to present himself before the police/court as and when directed.

8. That the applicant undertakes that he will not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer.

9. That the applicant further undertakes not to tamper with the evidence or the witnesses in any manner.

10. That the applicant shall not leave India without the previous permission of the Court.

11. That the applicant is ready and willing to accept any other conditions as may be imposed by the Court or the police in connection with the case. 12. That the Court below has failed to consider all the facts and circumstances of the case and has wrongly dismissed the anticipatory bail application.

000066. Quashing of FIR fresh Guidelines:

Supreme Court has issued guidelines on quashing of First Intimation Report:

The supreme court of india has issued few guide lines on the suppressing of criminal proceeding of a non compoundable offense by using the basic powers.

A Supreme Court bench of Justice A.K.Sikri and Justice K.S.Radhakrishnan has issued guidelines using the fundamental powers of High Court under Section 482 of Criminal Procedure Code on the basis of a settlement between the parties. SC was considering the question whether a serious offence like S.307 under IPC be suppressed only because the both parties have compromised.

The Court detailed the scope of section320 IPC which allow proceedings in those offences which are uncompoundable has been recognized. The only difference is that nopermission is required under Section 320 from the Court in those cases which are compoundable even though the Court has unrestricted power to refuse to compound the offence. However, compounding under Section 320 is acceptable only when the offences are minor or no serious offences. Likewise, when the parties reach settlement in respect of offences enumerated in Section 320(2) of the Code, compounding is allowed but it also requires the approval of the Court. In so far as serious offences are concerned, quashing of criminal proceedings upon compromise is within the unrestricted powers of the High Court. In such cases, the power is exercised under Section 482 of the Code and proceedings are suppressed. Outline of these powers were described by this Court in B.S.Joshi vs. State of Haryana which has been followed and further detailed in so many cases thereafter and following points have been noted.

One has to keep in mind that the delicate distinction between the power of compounding of offences given to Court under Section 320 of the Code and quashing of criminal proceedings by the High Court using basic jurisdiction conferred upon it under Section 482 of the Code. Once, it is found that compounding allowed only if an offence is covered by the provisions of Section 320 of the Code and the Court in such cases is guided only by the compromise between the parties, in so far as power of quashing under Section 482 of the Code is concerned, it is guided by the material on record as to whether the ends of justice would justify such exercise of power, although the ultimate consequence may be acquittal or dismissal of indictment. Three Judge Bench of this Court in Gian Singh vs. State of Punjab & Anr. Justice Lodha has interpreted the difference between the two provisions in the following manner: “Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. The power of compounding of offences inclined to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal law court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record”

However it is not right to leave the serious crimes just which will be a threat to public only because the party and victim have compromised yet certain crimes have been made compoundable in law, with or without the permission of the court. Certain serious offences like murder, dacoity, rape etc. or other mental depravity offences under IPC. In such a case the settlement between the offender and the victim can’t be sanctioned legally at all.

Still, certain crimes which vigorously and predominantly bear civil flavor having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or matrimony crimes such as dowry, etc. or the family issues, such a offense is not compoundable, the HC may within the framework of its fundamental power has right to quash the criminal proceeding or FIR if it is satisfied that on the face of such settlement. The above mentioned list is illustrative and not exhaustive”, said the Court.

After completing discussion following guidelines have be issued:

 (I) Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.

(II)When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure: (i) ends of justice, or (ii) to prevent abuse of the process of any Court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.

(III) Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by Public Servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.

(IV) On the other, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.

(V) While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.

000065. Attempt to Murder under Section 307, IPC

INTRODUCTION

Section 307 IPC is about attempt to murder and in the section a lot of weightage has been given to the intention and the knowledge of the accused and the preparation that he takes before committing the crime. How is this intention determined? 

Is there any hard and fast rule that the courts can apply to decide the intention?

And is the nature of injury important to convict a person under this section?

LITERATURE REVIEW

The attempt to murder under section 307 IPC is a very interesting section, in the sense that it has lots of similarities with section 324 IPC, which deals with voluntarily causing hurt using dangerous weapons. Sometimes it is seen that it is very difficult to differentiate between the cases under section 307 and cases under 324,325,326 because all these offences have some common ingredients among themselves. The offence of attempt to murder is a very serious offence because it is not very different from the offence of murder itself. The only difference between the two offences is the death of the victim which is not present under section 307.

The main ingredients under section 307 are

The act attempted should be of such a nature that if not prevented or intercepted, it would lead to the death of the victim.

The intention or mens rea to kill is need to be proved clearly without doubt, for this purpose the prosecution can make use of the circumstances like attack by dangerous weapons on vital parts of the body however the intention to kill cannot be gauged simply by the seriousness of the injury caused.

The intention and the knowledge of the result of the act being done is the main thing that is needed to be proved for conviction under section 307.

For the conviction under this section more importance has been given to mens rea or the intention than the actus reus or the actual act itself. The attempt should arise out of a specific intention or desire to murder the victim.” The nature of the weapon used, the manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted is all taken into consideration to determine the intention. The important cases which show that the nature of the injury helps in determining the intention of the accused are “Kaluram vs state of Assam”,in this case it was found that the accused had dangerous weapon but he inflicted only minor injuries on the victim, which clearly showed that he had no intention to murder and hence he was not convicted under section 307 IPC. Similarly cases like “Kiran Kumar vs State of Gujarat” where the accused stabbed the stomach near the naval region with a big knife blade, the court rightly rules that it is a case of attempt to murder and not grieveous hurt.

However very interestingly the nature of the injury is not always used to ascertain the intention, that is, a very serious injury need not be caused to prove attempt to murder, even if a simple injury is done with the intention, it will be enough to convict the person under section 307. The most debatable aspect is that even if an injury which in the ordinary course would have caused death, but is not done with an intention to kill, the accused will not be convicted under section 307. The debatable aspect is the amount of punishment that is given under this section, is vastly different from the punishment given under section 324 and any false conviction will be very harmful to the concept equity and justice. In case of “Kuldip Singh vs State”, the accused tried to hit the victim with a naked sword but somehow the victim got saved and the blow only caused simple injury, but the court convicted the accused under section 307 IPC because of the dangerous weapon used, which gave away the intention of the accused which gave away the intention of the accused, which was to murder the victim. “So basically if the intention or necessary knowledge to cause death as envisaged by section 300 IPC which defines murder is there, then it is immaterial to whether or not any hurt was caused to the victim by the accused. So the interpretation is that an act which is sufficient in the ordinary cause of nature to cause the death of the person but the intention on the part of the accused is lacking, the act would not constitute an offence under this section. An interesting case is that of “Prakash Shandra Yadav vs State of Bihar” in this case the accused ordered a person to hurl bombs to kill an informant and the person hurled two bombs towards the informant but fortunately, the bombs did not explode and the high court refused to entertain the conviction of the accused under section 307 IPC citing the lack of serious injuries on the body of the victim, the Supreme Court asked for a reconsideration of the case due to the fact that the logic used by the high court was faulty. Similarly the reverse is also true and injuries of simple nature caused by non dangerous objects, like a pen knife but with an intention to kill is enough to prosecute under this section. In case of “Shiv Singh vs State” the medical evidence was taken into account for determining the intention of the accused, here the weapon used was a dangerous one but the wound caused was of a simple nature, hence the court ruled that the accused would be liable under section 324 and not section 307. In case of “Jai Narain vs State of Bihar” the number of the accused was taken into account, the court ruled that the fact that four or five people attacked a person with dangerous weapons showed their intention to cause the death of that person, hence they will be liable under 307.

The intention and knowledge of the act being done is one of the major factors that is used to decide conviction under section 307 but it is not the only factor. The circumstances under which the act was done also weighs heavily when the conviction is given under this section . The words “under the circumstances” have nothing to do with the fact or question that whether the act of the accused was enough to cause death of the victim or not, rather it deals with the nature of his offence which the accused would have committed if his act had caused death of the victim. “Before the act can hold that the act committed by the accused amounts to attempt to murder or attempt to commit to culpable homicide, it should be satisfied that the act was committed with such intention or knowledge under such circumstances that if it had caused death, it would have amounted, in one case, to murder and in another case, to culpable homicide not amounting to murder.”

This is perhaps the most interesting controversy with regards to section 307, the controversy being that the constitutional validity of this section was challenged itself that is it was alleged that this section violated some of the fundamental rights and thus was ultra vires. This issue was raised in an Andhra Pradesh High Court where the contention was that there were two punishments being meted out for the same offence, the first punishment being imprisoned for life and the second punishment being ten years rigorous imprisonment and there was no provision in the Code of Criminal Procedure to retransfer the matter to the Sessions Judge when it is allotted to him. In that case the Assistant Sessions judge has to decide the matter and he does not have the power to sentence the accused for more than 10 years according to the procedure laid down by the code. But in another case if the accused is being judged by the sessions judge, the accused can be sentenced for life for the same offence. Thus it was argued that this is violative of article 14 of the constitution. However this argument was refuted by the Andhra Pradesh High Court which gave a very good reasoning to solve this seemingly good question of law. The court gave a very simple logic, it being that the assistant session’s judge can always refer the case to the Sessions Judge if he feels that the accused deserves a punishment which he is not capable of imposing. Thus it cannot be said that these are discriminatory in nature or violative of article 14 of the constitution. The High Court found out that section 307 envisaged two type of cases one where the victim suffered injury and other where the victim didn’t suffer any injury. Accordingly the legislature differentiated between the punishments that was to be given in this section according to the status of the victim, that is if the victim was injured in the attack then the accused after being convicted under this section was given the sentence of imprisonment for life or for ten years with fine and in cases where the victim wasn’t hurt the punishment of imprisonment for ten years is given. This issue was raised in the case of “J Punarao vs State Of AP” and the court rightly ruled that there was no question of discrimination and consequently there is no violation of Article 14 and 21 of the constitution.

Apart from the above facts about intention, knowledge and the circumstances that are important ingredients to convict a person under the section, there is also a debate over the nature of the act that is whether the act must be of such a nature that it should cause death of the victim. Here it is unequivocally stated by Bombay High Court in a case that the act must be clearly of such a nature that if it was uninterrupted and not interrupted then the victim would have died, if the act complained is not of this nature, then section 307 will not apply. However the Lahore High Court, differed from the Bombay High Court in this regard and ruled even when no injury is caused then also there may be conviction under this section and that the injury caused is merely an aggravating factor. And the Orissa High Court in case called “Sukra vs State of Orissa” has ruled that injuries which are caused with the intention of causing death but are not grave enough to cause death do not come under this section, thus again reverting back to the position taken up by the Bombay High Court. This is very interesting to see that on the case of nature of injury all the courts are giving different opinions. The deciding opinion in such case is always the decision of the apex court which ruled that it is not at all mandatory for the accused to be convicted under this section, that he does not have to cause life threatening injury on the victim, his intention, knowledge and the preparation that he took will be the factors that will be looked into for his conviction. As far as the part of proving his intention the nature of the wound, type of weapon used, part of the body attacked can be taken into account. In the case of “Jodha vs State of Rajasthan”, the court ruled that merely because a person was stabbed in the thigh and not in a vital body part, it cannot be said that the case does not fall under the ambit of section 307.

Since the law gives a lot of importance on proving the intent of the accused, there have been some tests to determine the murderous intent of the accused. The test was laid down in the case of “Pran Dutt vs UP” where the court said to check the nature of the injury, preparation taken, weapon used to determine the intent of the accused. The evidence of the doctor is also given importance.

For more: Refer to. Indian Penal Code, ratanlal and dheerajlal.

Landmark cases:

Sarju Prasad vs State of Bihar.AIR 1965 SC 843

Hari Kishan vs Sukhbir Singh, AIR 1988 SC 2127

1977 crlj 98

1985 CrL(NOC) 22 (Guj)

(1988) 3 Crimes 628(1) Del (SN)

2008 CrLJ 438 SC

1975 CriLJ 704 All

1972 CrLJ 469(SC)(1971) SC 1764.

000064. Post decisional hearing

Post decisional hearing is a hearing which takes place after a provisional decision is reached. This principle was laid down in Maneka Gandhi v. Union of India. There is a nexus between pre-decisional and post-decisional hearing. The logic behind introducing the post- decisional hearing is to increase and maintain administrative fairness.

Post decisional hearing takes place where it may not be feasible to hold pre decisional hearing. One better example is, the power to impound the passport may be frustrated if a prior notice or hearing has given to the concerned person whose passport is going to be impounded because he can leave the country, therefore, passport authorities first impound the passport of that person without any hearing and later provide him opportunity of hearing. This was the scenario of Maneka Gandhi v. Union of India in which J. Chandrachud held that the action of impounding passport without giving her pre decisional hearing was bad. It was an exceptional site because government was not justified in its act of impounding passport. Later on, the concept was made justified in such cases.

The rule of Audi Alteram Partem is excluded from the purview of post decisional hearing or I can say that it is an exception of post decisional hearing but as soon as order is made, a fair opportunity of being heard should be provided to the person in order to follow the above said rule. This post decisional hearing cannot be treated as substitute of pre decisional hearing, the reason being that for the aggrieved person, pre decisional hearing affords such better safeguards.

It depends upon facts and circumstances of the case and there have been many instances where court have permitted a post decisional hearing as pre decisional hearing did not appear to be feasible, and where courts have refused to accept post decisional hearing where pre decisional hearing could have been given.

A post decisional hearing is less effective than a pre decisional hearing and it has pointed out by the court itself that once a decision has been taken by an authority, its natural tendency would be to support the same or not obviate from former order and representation against it may not really prove any fruitful result. Post decisional hearing is not adequate in dismissal case where the consequence to the concerned person is very serious.