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Source: Punjab and Haryana High Court 

Why in News? 

• A bench of Justice Pankaj Jain held that confession made by accused in police custody cannot be relied upon to hold the appellant guilty.  
  • The Punjab and Haryana High Court held this in the case of Navdeep @ Chhotu and another v. State of Haryana. 

What is the Background of Navdeep @ Chhotu and another v. State of Haryana Case? 

• On 1st September 2020 the police party while patrolling received secret information that a person is in possession of a Swift Dzire Car without number plate which is a proceed of snatching. 
• Accused No.2 was apprehended in possession of a white colour Swift Dzire Car. 
• He suffered a disclosure that the said vehicle was left with him by co-accused Navdeep @ Chhotu. 
• It is a further case of the prosecution that accused Navdeep – appellant No.1 was apprehended who suffered a disclosure and submitted that Swift Desire Car was proceed of loot. 
• The Trial Court relied upon the statement of Gurpreet Singh who claimed that he was travelling in his car to his house from Gurugram.  
• His car was looted by 4 young boys at gun point near Sugar Mill, Jind. FIR No.306 dated 25th August 2020 was registered for the offence punishable under Section 395 of Indian Penal Code, 1860 and Section 25 of Arms Act, 1959. 
• Trial Court thus held that the prosecution has been able to prove recovery of car in question from appellant No.2 Sudhir which was handed over to him by appellant No.2 Navdeep @ Chhotu. 
• Trial Court in view of above held both the appellants guilty of offence punishable under Section 412 IPC. 

What were the Court’s Observations? 

• It is to be noted that Gurpreet Singh alleged that he was robbed by 4 young boys on pistol point. 
• In order to make out an offence under Section 412 of IPC, it is essential that offence of dacoity must have been committed.  
  • Consequently, for the purposes of offence of dacoity the number of persons involved in the offence should be more than five. 
• The Court held that it is clear by the statement of Gurpreet Singh that there was no dacoity, therefore, the offence of Appellant no 2 Sudhir was altered from Section 412 IPC to that of Section 411 IPC.  
• With regards to Appellant No. 1 Navdeep @ Chotu apart from disclosures made by the co-accused while in police custody, there was no other incriminating evidence against Navdeep. 
• So far as appellant No.1 Navdeep @ Chotu is concerned, apart from the disclosures made in the present case by both the accused while in police custody, there is no other incriminating evidence against him. 
• The Court held that confession made in police custody cannot be relied upon to make the accused guilty and hence Appellant Navdeep @ Chotu was ordered to be released. 

What is the Law Regarding Confession in Police Custody under Section 23 of Bhartiya Sakshya Adhiniyam, 2023 (BSA)? 

• Section 23 (1) of Bhartiya Sakshya Adhiniyam, 2023 (BSA) provides that no confession made to a police officer shall be proved as against a person accused of any offence.  
  • Section 23(2) of BSA provides that no confession made by any person while he is in the custody of a police officer, unless it is made in the immediate presence of a Magistrate shall be proved against him. 
  • Provided 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. 
• It is to be noted that the law provided for under Section 23 of BSA was spread over three different sections (Section 25, 26 and 27) under Indian Evidence Act, 1872 (IEA). 
• Section 25 of IEA provides what is now contained Section 23(1) of BSA.  

What are Landmark Cases on Confession in Police Custody cited in this case? 

• State of U.P v. Deoman Upadhyaya (1961): 
  • For the ban under Section 25 of IEA to be effective it is not necessary that the person should have been accused of an offence when he made the confession. 
  • The Court held that the adjectival clause “accused of any offence” is therefore descriptive of the person against whom a confessional statement made by him is declared not provable and does not predicate a condition of that person at the time of making the statement for the applicability of the ban. 
• Aghnoo Nagesia v. State of Bihar (1966) 
  • The Court observed that the expression “accused of any offence” covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession.  

Source: Allahabad High Court 

Why in News? 

Recently, the Allahabad High Court in the matter of Rammilan Bunkar vs. State of U.P and Connected Appeals, has held that mechanical addition of charge of Murder under Section 302 of Indian Penal Code 1860(IPC) is unsustainable in the cases already having charges related to Dowry death and Dowry related inhuman treatment. 

What was the Background of the Rammilan Bunkar vs. State of U.P and Connected Appeals Case? 

• In this case, six Criminal appeals were filed by accused where they were convicted under six different cases related to Dowry Death and Dowry related inhuman treatment. 
• In one of the six cases it was observed that the accused was charged with both the sections related to Murder and Dowry Death under IPC. 
• The Bench observed a pattern in which First Information Report (FIR) was filed pertaining to Section 498A & 304B of IPC and Sections 3 & 4 of Protection of Women & Domestic Violence Act, 2005 (DV) into which court added the charge of Section 302 of IPC as an alternate charge without referring to any evidence. 
• The court observed that in all the cases accused were discharged by the court from the charges related to Section 498A & 304B of IPC and Sections 3 & 4 of DV Act. 
• However, the appellants were charged under Section 302 & Section 34 of IPC taking into consideration Section 106 of Indian Evidence Act (IEA) and have been convicted under such offences. 
• The moot question to be adjudicated by court was whether application of Section 302 of IPC is maintainable in such cases. 

What were the Court’s Observations? 

• The court observed that addition of Murder charge as an alternate charge is not appropriate it should be treated as a main charge. 
• Further it was added that courts while charging under Section 302 of IPC must take the investigation into consideration and determine if there is any direct or circumstantial evidence available to support the charge. 
• It was observed by the High Court that trial court was referring Rajbir @ Raju and another v. State of Haryana (2010) and adding the charge of Murder while the Supreme Court in the case of Jasvinder Saini v. State (Government of NCT of Delhi) (2013) issued clear exception of this rule. 
• The bench also pointed out the clear difference between Section 302 & Section 304B of IPC and stated that Section 304B cannot be considered as a minor offence with respect to Section 302 and vice versa. 
• It was stated by the Bench that if the trial court does not have any direct or circumstantial evidence with respect to section 302 of IPC the trial court should proceed with Section 304B only. 
• It was further stated that Section 106 of IEA cannot be used to nullify the inability of the prosecution to produce evidence. 
• The court also stated that the investigating authorities to be cautious while performing an investigation and not to rely just on the FIR but also to examine the case from every possible angle. 
• It was further added that to prove charges of Murder various witnesses and proves to be produced beyond reasonable doubt. 
• The High Court therefore remitted all the cases back to trail courts for their re-trial by setting aside the judgements and allowing appeals. 

What are the Relevant Legal Provisions Related to this Case?  

Punishment for Muder: 

• Section 103 of Bharatiya Nyaya Sanhita, 2023 (BNS) deals with the punishment for murder. It states that: 
  • Punishment for murder. 
    • Whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine. 
    • When a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground each member of such group shall be punished with death or with imprisonment for life and shall also be liable to fine. 
  • This provision was earlier covered under Section 302 of the IPC. 

Dowry Death: 

• Section 80 of BNS states that: 
  • Dowry Death 
    • Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. 
    • Explanation. — For the purposes of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961. 
    • Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years, but which may extend to imprisonment for life. 
  • This provision was earlier covered under Section 304B of the IPC. 
• Section 85 of BNS states: 
  • Husband or relative of husband of a woman subjecting her to cruelty. 
    • Husband or relative of husband of a woman subjecting her to cruelty. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. 
  • This provision was earlier covered under Section 498A of IPC. 

Provisions of Dowry Prohibition Act, 1961: 

• Section 3: Penalty for giving or taking dowry 
  • If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more: 
  • Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than five years. 
  • Nothing in sub-section (1) shall apply to, or in relation to: 
    • Presents which are given at the time of marriage to the bride (without any demand having been made on that behalf). 
  • Provided that such presents are entered in a list maintained in accordance with the rules made under this Act. 
    • Presents which are given at the time of a marriage to the bridegroom (without any demand having been made on that behalf). 
  • Provided that such presents are entered in a list maintained in accordance with the rules made under this Act. 
  • Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given. 
• Section 4: Penalty for demanding dowry: 
  • If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees. 
  • Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months. 

Section 109 of Bharatiya Sakshya Adhiniyam, 2023 (BSA): 

• Section 109 deals with the burden of proving facts, especially within knowledge. It states that- 
  • Any continuing unlawful activity including kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offences, cyber-crimes having severe consequences, trafficking in people, drugs, illicit goods or services and weapons, human trafficking racket for prostitution or ransom by the effort of groups of individuals acting in concert, singly or jointly, either as a member of an organized crime syndicate or on behalf of such syndicate, by use of violence, threat of violence, intimidation, coercion, corruption or related activities or other unlawful means to obtain direct or indirect, material benefit including a financial benefit, shall constitute organized crime.  
  • Explanation: For the purposes of this sub-section 
    • ‘‘Benefit’ includes property, advantage, service, entertainment, the use of or access to property or facilities, and anything of benefit to a person whether or not it has any inherent or tangible value, purpose or attribute. 
    • “Organized crime syndicate” means a criminal organization or group of three or more persons who, acting either singly or collectively in concert, as a syndicate, gang, mafia, or (crime) ring indulging in commission of one or more serious offences or involved in gang criminality, racketeering, and syndicated organized crime. 
    • “Continuing unlawful activity” means an activity prohibited by law, which is a cognizable offence undertaken either singly or jointly, as a member of an organized crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent court within the preceding period of ten years and that court has taken cognizance of such offence. 
    • “Economic offences” include criminal breach of trust; forgery, counterfeiting of currency and valuable securities, financial scams, running Ponzi schemes, mass-marketing fraud or multi-level marketing schemes with a view to defraud the people at large for obtaining the monetary benefits or large-scale organized betting in any form, offences of money laundering and hawala transactions. 
  • Whoever, attempts to commit or commits an offence of organized crime shall:  
    • If such offence has resulted in the death of any person, be punishable with death or imprisonment for life and shall also be liable to fine which shall not be less than rupees ten lakhs. 
    •  In any other case, be punishable with imprisonment for a term which shall not be less than five years, but which may extend to imprisonment for life and shall also be liable to fine which shall not be less than rupees five lakhs.   
    • Whoever, conspires or organizes the commission of an organized crime, or assists, facilitates or otherwise engages in any act preparatory to an organized crime, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine which shall not be less than rupees five lakhs.  
    • Any person who is a member of an organized crime syndicate shall be punishable with imprisonment for a term which shall not be less than five years, but which may extend to imprisonment for life and shall also be liable to fine which shall not be less than rupees five lakhs.  
    • Whoever, intentionally harbours or conceals or attempts to harbour or conceal any person who has committed the offence of an organized crime or any member of an organized crime syndicate or believes that his act will encourage or assist the doing of such crime shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life and shall also be liable to fine which shall not be less than rupees five lakhs. 
    • Provided that this sub-section shall not apply to any case in which the harbour or concealment is by the spouse of the offender.  
    • Whoever, holds any property derived, or obtained from the commission of an organized crime or proceeds of any organized crime or which has been acquired through the organized crime syndicate funds shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life and shall also be liable to fine which shall not be less than rupees two lakhs.  
    • If any person on behalf of a member of an organized crime syndicate is, or at any time has been in possession of movable or immovable property which he cannot satisfactorily account for, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for ten years and shall also be liable to fine which shall not be less than rupees one lakh and such property shall also be liable for attachment and forfeiture.  
    • Explanation: For the purposes of this section, “proceeds of any organized crime” means all kind of properties which have been derived or obtained from commission of any organized crime or have acquired through funds traceable to any organized crime and shall include cash, irrespective of person in whose name such proceeds are standing or in whose possession they are found. 
  • This section was earlier covered under Section 106 of IEA. 

What are the Landmark Judgements? 

• Rajbir @ Raju and another v. State of Haryana (2010):  
  • In the case the High Court ordered the trial courts to ordinarily add Section 302 of IPC in the cases related to Dowry deaths so that death sentence can be pronounced in such heinous cases. 
• Jasvinder Saini v. State (Government of NCT of Delhi) (2013):  
  • In this case the Supreme Court made it clear that a charge under Section 302 of IPC to be made in cases of Dowry death only when evidence permits so. 
• Vijay Pal Singh & Ors v. State of Uttarakhand (2014):  
  • In this case the court held the accused liable for the offences related to Dowry death as there was sufficient evidence to prove the same. 
• Balvir Singh v. State of Uttarakhand (2023):  
  • In this case it was held that to convict the husband and his relatives there must be a full-fledged trial that is to be conducted and the court cannot take help of the provisions of section 106 IEA for the same.