CRIMINAL LAW AND PROCEDURE

D.C. Pqnde*

I ANTICIPATORY BAIL
THE GRANT of bail in anticipation of arrest has now been crystal-
lised into a legal concept by section 431 of the Code of Criminal
Procedure, 1973. The genesis of the concept is generally sought in the
recommendation of the Law Commission,1 which thought it could be
a useful addition to the protective rights of a person under the criminal
procedure. However, the utility of the provision was recommended only
for exceptional cases.2 In fact, the concept of anticipatory bail had grown
in our system of jurisprudence as a by-product of judicial decision^
on the interpretation of sections 496-498 of the old Code of Criminal
Procedure,8 which had set up a trend for giving validity to the
principle of putting a person out of fear of being arrested for an alleged
offence.
The rationale for incorporating the provision of anticipatory bail has
been stated by the Law Commission in these words :
The necessity for granting anticipatory bail arises mainly
because sometimes influential persons try to implicate their
rivals in false cases for the purpose of disgracing them or for
other purposes by getting them detained in jail for some days.
In recent times, with the accentuation of political rivalry, this
tendency is showing signs of steady increase....4

•Associate Research Professor, Indian Law Institute, New Delhi.

1
Forty-first Report, para 39.9 (1969).
8
See the Law Commission, Forty-eighth Report (1972).
8
D-C. Pande & V. Bagga,'Criminal Law and Procedure', IX A.S.I.L. 175 at 197-8
(1973).
* Supra note 1 at 3 21.
170 Annual Survey of Indian Law [1977

The Law Commission's sweeping remarks of the above kind cannot

be taken to be the sole sustenance of the concept of anticipatory bail.
It also took the view that if an accused person is not likely to abscond
or misuse his liberty in some way there does not seem to be justification
to require a person to submit first to custody and then apply for bail.8
A further scrutiny of the proposal by the Law Commission resulted in
taking precautions against the abuse of this provision by recommending
that the issue of direction for anticipatory bail be made only after
notice to the public prosecutor is given and the reasons be recorded if a
direction to this effect is deemed necessary by the court in the interests
of justice. Thus, discretionary excercise of the power to grant anticipa-
tory bail cannot be invoked as a matter of rule.
The Patna High Court was guided by these considerations8 and ruled
that the provision be used in cases where "the Court is convinced that
the person is of such a status that he would not abscond or otherwise
misuse his liberty".7 The court further said that even before this
provision was introduced there had been the practice in vogue to release
such persons without a bail or on their giving a personal understanding
that they would appear before the court if required to do so.8
The above view is in consonance with the general judicial attitude of
taking a restrictive view of the personal liberty aspect of the matter.
Personal liberty is to be enjoyed by all and in an equal measure. It
has nothing to do with the status of a person as such, which he seeks
to canvass for his position in life, and which the society so often
measures only in terms of his wealth and power. The Law Commission's
criterion has been that justification for denying personal liberty by way
of granting anticipatory bail, lies on the apprehension of his absconding
or misusing his liberty. This approach has been explicitly negatived by
the Patna High Court which observed :
Ordinarily, there should be a presumption in favour of every
citizen that he is not likely to abscond or otherwise misuse his
liberty while on bail. But such presumptions are generally
belied and one cannot be granted bail on that account.9
The foregoing observations have, thus, superseded the labours of the
Law Commission, which recommended the use of such a mechanism in

6
Ibid.
8
Narsingh Lai Daga v. State, 1977 Cri. LJ. 1776.
7
M a t 1777.
8
Ibid.
9
Id. at 1776-7.
Vol. XIII] Criminal Law and Procedure 171
promoting the interests of personal liberty, as well as the wisdom of
the legislators who formulated, debated and passed the Bill. It is,
however, not suggested that denial of this relief to the petitioner involved
in the breach of law under section 7 of the Essential Commodities Act,
1955, and rule 114 of the Defence of Internal Security India Rules,
1971, was incorrect, but in arriving at the conclusion the court took an
approach which incidentally puts a dent in the very basis of the concept.
In Badri Prasad Pathya v. State10 the Madhya Pradesh High Court has,
however, endorsed the view that grant of anticipatory bail is mainly
meant to relieve a person from being disgraced or from being unnecessa-
rily deprived of liberty; though in the instant case the consideration
of high hazards of releasing the persons alleged to be involved in a
prima facie case of murder weighed with the court in rejecting the
application as against their claims for personal liberty.

In an application for grant of anticipatory bail before the Punjab and

Haryana High Court11 two influential parties were pitched against each
other, to make the contest "unnecessarily prestigious". The court was
required to intervene in the matter by way of granting bail to the
members of one party who apprehended police arrest on the basis of a
first information report which showed that two shots werefiredin the air
by unknown persons in a meeting of a registered society. No person
was found hurt as a result of the reported incident and three weeks of
police investigation could also not reveal as to who fired the shots. In
these circumstances the court issued direction for anticipatory bail.

The purpose underlying section 438 of the Code is to secure that a

person anticipating arrest is not obliged to go to jail till he is able to
move the court for being released on bail. But it cannot also be
construed that such a direction should be allowed to come in the way
of police investigation or it should seek to circumscribe the police
powers relating to remand to police custody for purposes of facilitating
investigation. Accordingly, in Somabhai v. State of Gujarat12, the court
observed that a direction for anticipatory bail would not be allowed to
come in the way of a fuller consideration of the question of custody of
the person when the investigation is complete. The court further said :

The order may therefore provide that it will exhaust itself on

or will remain operative only till the expiry of say ten days

" 1977 Cri. LJ. (N.O.C.) 130 (Madh. Pra.).

11
Narinder Singh v. State, 1977 Cri. L J. 596.
x
* 1977 Cri. L.J. 1523 (Guj.).
 172 Annual Survey of Indian Law [1977

from the date of the arrest and the accused will have to obtain
a fresh order in usual course.... To avoid complications,
instead of unlimited duration the order may provide that it
will become inoperative if no arrest is made say within 90 days
of the order.18
A search for factors guiding issuance of direction for anticipatory
bail is to continue. Some conditions are already engrafted in clause (2)
of section 438 of the Code of Criminal Procedure, 1973.14 In applying
these conditions to specific situations the court may find it convenient
to reckon factors like, gravity of the offence, nature of the accusation,
character and antecedents of the petitioner as well as some such other
cliches as are generally found in the judicial store-house and are so
often relied upon. It may be said that the search for guidelines may
take the court even to fall back on considerations stated under section
437 of the Code which provides for grant of bail in non-bailable cases,
although proceedings under section 438 for the direction of anticipatory
bail are to be invoked during the pendency of investigation and not after
it.
In Balchand v. State of AT P.15 the Supreme Court found :
[T]he Legislature in enshrining the salutary provision in Section
438 of the Code which applies only to non-bailable offences
was to see that the liberty of the subject is not put in jeopardy,
on frivolous grounds at the instance of unscrupulous or irres-
ponsible persons or officers...."

*»/</. at 1524.
" It reads:
When the High Court or the Court of Session makes a direction under
sub-section (i) it may include such conditions in such directions in the
light of the facts of the particular case, as it may think fit, including —
(i) a condition that the person shall make himself available for inter-
rogation by a police officer as and when required ;
(ii) a condition that the person shall 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;
(iii) a condition that the person shall not leave India without the
previous permission of the Court;
(iv) such other condition as may be imposed under sub-section (3) of
section 437, as if the bail were granted under that section.
18
1977 Cri. L.J- 225 (S.C).
" Id. at 254 (per Fazal AH J.).
 Vol XIII] Criminal Law and Procedure 173

At the same time the court stressed that "this being an extraordinary
power should be exercised sparingly and only in special cases". With a
view to giving effect to the above, the court further said that the "rule
of prudence requires that notice should be given to the other side before
passing afinalorder of anticipatory bail so that wrong order of anticipa-
tory bail is not obtained by a party by placing incorrect or misleading
facts or suppressing material facts."17

In sum, an anticipatory bail cannot be invoked as a matter of rule.

It cannot be used to thwart the investigation or to defeat the excercise
of proper police powers needed for the purposes of investigation.
However, when the police actions prejudicially tend to tilt the balance
against a party whose personal liberty is likely to be jeopardised without
fuller justification under the law, the courts can exercise the discretion
to issue a direction of anticipatory bail. This facility remains confined
to persons apprehending arrest during pendency of investigation of non-
bailable offences.

II WITHDRAWAL FROM PROSECUTION

Unwarranted prosecutions can be put to a stop by the state by with-

drawing them. The Code of Criminal Procedure, 1973, contemplates
that where the interests of justice may so warrant, the prosecutions
launched can be withdrawn by the prosecutor with the consent of the
court u If the proposal of the prosecutor to withdraw the prosecution
is consented to by the court the accused person is discharged forthwith;
and if the charges have been framed the effect of the proceeding is to
declare the acquittal of the accused. No withdrawal can, however,
take place after the judgment is pronounced.

A few cases have been reported discussing the scope of the exercise
of this power. A reading of a recent Supreme Court decision in
Balwant Singh v. State of Bihar19 suggests that the power is not meant

Xl
Ibid.
18
S. 321, Cr. P. C , 1973. This power can be exercised subject to the proviso that
0') it was against any law relating to a matter to which the executive power of
the Union extends, or
(ii) it was investigated by the Delhi Special Police Establishment under the
Delhi Special Police Establishment Act, 1946, or
(///) it involved the misappropriation or destruction of, or damage to, any pro-
perty belonging to the central government, or
(/v) it was committed by a person in the service of the central government while
acting or purporting to act in the discharge of his official duty.
18
1977 Cri. L.J. 1935.
174 Annual Survey of Indian Law [1977
to be used in ordinary criminal cases with a focus on the interests of
the individual involved in the proceeding. The interests should be larger
than that. According to the court the sole consideration for the
public prosecutor in such a case is "the larger factor of the administra-
tion of justice — not political favour nor party pressures nor like
concerns". A broader connotation of public justice would thus compre-
hend withdrawal of such prosecutions as might have erupted by way
of communal feuds or labour disputes for which the malady might not
have been rooted in the antisocial propensities of the wrongdoers. The
responsibility for such occurrences can well be identified with the doings
of the society at large, and for rectifying them the administration has
to secure conditions of relaxation by way of retracing its own steps.

The dilemma whether to prosecute or not has to be solved by the

prosecutor himself. It is he who has to form his opinion in this regard
and submit the same to the court for making the latter agreeable to the
decision of withdrawal in the interests of justice. In Balwant Singh's
case20 where the desirability of the decision to withdraw was questioned,
the decision had emanated from the court which directed the prose*
cutor to withdraw the case. The formation of the opinion is that of the
prosecutor, who may be acting on broader policy considerations. The
possibility of an accused being convicted in the case can, therefore, not
act as a deterrence to the decision at both the levels of the prosecutor
as well as the court. As pointed out by Bhagwati J. :

The ultimate guiding consideration must always be the interest

of administration of justice and that is the touchstone on which
the question must be determined whether the prosecution
should be allowed to be withdrawn.21

The modality of determining the interests of administration of justice

has to be found out. It is understandable that where a prosecution
has been initiated, and it is realised later on that it would not be
possible to produce sufficient evidence to sustain the charge the prosecu-
tor can apply for its withdrawal. It would, indeed, be in the interests
of justice if the prosecution finds out subsequently that the prosecution
has been fabricated and is not well founded. Other circumstances in
which the power can be invoked include such decisions on the part of
the state which seek to implement a policy on grounds as have been
stated above, e.g., to withdraw prosecutions arising out of communal

"Ibid.
81
State ofOrissa v. Chandrika Mohapatra, 1977 Cri. LJ. 773 at 777-8 (S. C).
 Vol. XIII] Criminal Law and Procedure 175
feuds or labour disputes so as to assuage the feelings of the passioned
group with a view to arriving at a negotiated settlement for the keeping
of law and order. In Public Prosecutor v. P.P. Reddy%% the prosecutor
moved the court for withdrawal of prosecution to which the court did
not consent. A perusal of the record showed that the chargesheet
filed in the case rested on wrong premises and the complainant had
suppressed some material facts from the investigating officer. The case
had also prolonged unnecessarily for more than five years. In the
circumstances, refusal to give consent to the withdrawal was not held
valid and the court rightly remarked that "to allow the prosecution to
proceed any further would only be enabling abuse of the process of
law."23

In Laxman v. State of Maharashtra24, the state did not want to

proceed with the prosecution of accused persons who were alleged to
have concertedly committed dacoity of articles valued over Rs. 13,000.
The grounds for withdrawal included, inter alia, the desire of the
government to put an end to the matter with a view to maintaining
peace, law and order in the area. It also emphasised that the accused
persons were not habitual offenders, but were poor farmers.
Consent was accorded to the proposal by the court. This order was
challenged to be wrong and the High Court upheld the contention
on revision. It was held that the grounds stated by the prosecutor
could not be sustained as these are not comprehended within the scope
of section 321, Criminal Procedure Code. It really sounded anomalous
that the plea of non-prosecution of offenders of serious offences was
being canvassed for attaining the object of maintaining law and order.
An exercise of the power under section 321, Criminal Procedure Code
being a judicial one has to be used in a proper and reasonable manner.26

Ill CRIMINAL APPEAL — GROUNDS OF INTERFERENCE

A serious miscarriage of justice, caused either by an error of law or

procedure can lead the Supreme Court to interfere in the matter of
criminal appeals. In this regard, principles have been enunciated as
early as 1950*6 and have since then been reiterated time and again in a

"1977 Cri. L. J. 2013.

88
Id. at 2019.
" 1977 Cri. L. J. 2022.
" See State of Bihar v. Ram Naresh, 1957 Cri. L. J. 567 (S.C).
" See Pritam Singh v. The State, A. I. R. 1950 S.C. 169.
 176 Annual Survey of Indian Law [1977

number of cases.27 The principles emerging from the cases can be

stated as under :

(0 Interference by the Supreme Court is precluded where the

concurrent findings of the two courts below are based on pure apprecia-
tion of evidence even though a different view of the evidence is possible.

(») The court would interfere where serious prejudice or injustice

is caused to the accused as a result of violation of principles of natural
justice, mandatory provison of law or disregard of judicial process in
ascertaining a fact.

(Hi) The question of going into the credibility of evidence in special

appeal does not arise except in exceptional circumstances resulting in
substantial and grave injustice.

(iv) The opportunity given by way of special appeal does not

allow an appellant to contest all the findings of fact but it is confined to
issues raised at the time of granting the leave.

A catalogue of the principles cannot exhaustively be drawn. Each case

is to be tested on the basis of such prejudice being caused to the accused
as may be resulting in substantial and grave injustice. In Dalbir Kaur
v. State of Punjab™ where the omission to examine material witnesses
took place without deliberation or design the court did not think it
would constitute a fit case for interference. But in Chuhar Singh v.
State** where the conviction of the accused for a rash and negligent act
rested on the evidence of a single eyewitness, which on scrutiny was
found to suffer from serious infirmities, the Supreme Court stepped in
to reverse the conviction.

The Supreme Court has been reluctant to embark on reappreciation

of evidence and, thus, to interfere with the concurrent view taken in
regard to evidence by the courts below,30 except where the sense of
fair play and justice are in jeopardy.31 In Ramlakhan v. State** the

27
Hem Raj v. The State of Ajmer, A . I . R . 1954 S. C 462; Piara Singh v. State of
Punjab, A . I . R . 1969 S.C. 961; Guli Chand v. State of Rajasthan, A. I. R. 1974
S* C. 276; Kaur Sain v. State of Punjab, A. I. R. 1974 S. C. 329.
28
1977 Cri. L. J. 273; also Nathu v. State, 1977 Cri. L. J. 1578 (S. C ) .
29
1977 Cri. L.J. 243.
80
Ashok Kumar v. State, 1977 Cri. L. J. 164; also Ajmer Singh v. State, 1977 Cri.
L. J. 659.
81
Harshadsingh v. State, 1977 Cri. L. J. 352.
82
1977 Cri. L. J. 1566; see also NarpalSingh v. State, 1977 Cri. L. J. 642.
Vol XIII] Criminal Law and Procedure 177
Supreme Court undertook the arduous task of reappreciating the
evidence and coming to its own conclusion because it found that the
evidence against the accused was replete with infirmities which had
affected the quality of appreciation. Accordingly, a thorough examina-
tion of the evidence and the entire circumstances to satisfy itself about
the guilt of the accused was warranted by the interest of justice parti*
cularly when the accused had been awarded the extreme penalty of
death.
The Supreme Court has sought justification to interfere in certain
matters which do not seem to be consistent with notioqs of fair play
and justice. Thus, in Kashmira Singh v. Statezz the court had granted
leave to appeal and the matter for bail of the accused appellant came
up. The court said that the past practice of not releasing a person Qfy
bai} who has been sentenced by the High Court was based on the
postulate that the appeal of such person would be disposed of within
a measurable distance of time so that if he is ultimately found innocent,
he has not to remain in jail for an unduly long period. As the rationale
of this practice has no application today because of an appeal taking as
much as five to six years, the past practice of not releasing such a
person has to undergo a change particularly when fie has a prima facie
good case for appeal in view of his being granted leave to appeal.
The court's interference in the matter of sentence has figured in some
cases. It is the general rule that when a leave has been granted
on the question of sentence the court does not permit in appeal to go
behind the findings of facts recorded by the High Court 34 On the
question of sentence there is reluctance to interfere with the quantum of
punishment awarded as the imposition of sentence is always a matter of
discretion An interference can be sought only if the discretion bas
been exercised capriciously or without taking the relevant factors into
account.35 Even a new plea claiming benefit under the Probation of
Offender's Act, 1958, which the Supreme Court has entertained in
appropriate cases was refused in Yadurajsingh v. StateZ5a because of the
lack of reliable evidence being on record which show the true age.

IV CONFESSIONAL STATEMENTS
It is always open to the court to convict an accused on his confession.
As a matter of prudence and caution the courts require some corro-

88
1977 Cri. L- J. 1746.
84
Ram Sarup v. State, 1977 Cri. L. J. 1439.
85
Surendra v. State, \911 Cri. L. J. 351.
850
1977 Cri. L.J. 340 (S.C).
 178 Annual Survey of Indian Law [1977

boration to the confessional statement before convicting a person on

such a statement. In State v. Lilanand** the accused had made a
confessional statement before a magistrate under section 164. He did
not retract from his confession at any stage of the trial. On the con-
trary while being examined under section 342, Criminal Procedure Code,
he admitted his guilt. In the circumstances the validity of the convic-
tion cannot be challenged as being against the law and practice. In fact,
the subsequent assertion by the accused in admitting his guilt corrobo-
rated the evidence to sustain conviction.

It is necessary that a confession be recorded with proper compliance

of the prescribed procedure under section 164, Criminal Procedure
Code. A confession has to be voluntary in addition to its being trust-
worthy. With a view to injecting voluntariness, it is necessary that the
accused is given sufficient time for reflection. Thus, where the accused
had been in police custody for more than twenty-four hours, the time of
two hours given to the accused for reflection was held not to be
sufficient.37 In order to dispel fear of any kind whatsoever, the magis-
trate recording the confession has to insure that necessary steps are
taken to keep the voluntariness of the statement untainted. It is,
therefore, the duty of a magistrate to see that the police officers are not
present at the scene. In State v. Mituz* the plea of the accused that
the confession was made in the presence of the police officer was
negatived, as the magistrate had not only taken care about removing the
policeman, but was careful enough to record this fact.

The validity of a confessional statement rests on its passing the test' of

voluntariness. Accordingly, it is a sound rule of practice to explain to
the accused the implications of his making a confession in a manner
that does not induce a feeling of fear or favour in the mind of the
person making the statement.89 In Baldeo Goala v. State*® the accused
had made an exculpatory statement asserting the right of private
defence, which was held to be not a confessional statement for purposes
of conviction. The question whether a confession is to be accepted as
voluntary or not is to be decided on the facts of each case. Various
factors are taken into consideration for this purpose, viz., the police
influence, prompting or persuasion, coercion and the like. To a large
extent voluntariness of a confessional statement can be measured from

ae
1977 Cri. L. J. 512 (Pat.)
87
Gunda Uran v. State, 1977 Cri. L. J. (N. O. C.) 13 (Gau.).
88
1977 Cri. L. J. 1018.
89
Ibid.
40
1977 Cri. L. J. 1516 (Gau.).
Vol. XIII] Criminal Law and Procedure 179
the manner in which it was made, from its general tenor, inherent appeal
to commonsense and experience of men and matters. Thus, where
adequate measures had been taken by the magistrate for recording the
confession, but warning was not administered in a formal way it was
held that it would not make the confession inadmissible.41

V ISSUE ESTOPPEL, RES JUDICATA AND

DOUBLE JEOPARDY

In Ponnuswamy v. Venkatachalam*2 the principle of issue estoppel or

res judicata was explained as applicable to criminal proceedings. The
principle of issue estoppel or res judicata is different from the principle
of "double jeopardy" or "auterfois acquit" as embodied in section 300
of the Code of Criminal Procedure, 1973.43

The principle of issue estoppel implies that where an issue of fact

has earlier been tried by a competent court and afindinghas been
arrived at in favour of the accused such finding would constitute an
issue estoppel against the prosecution. It does not, however, mean
that it would constitute a bar against trial and conviction of the accused
in a subsequent proceeding, but it would definitely operate as a bar to
receiving such evidence as may disturb the finding of a fact on which
the judicial verdict has been given.

The main object of the rule of issue estoppel is to prevent re-litiga-

tion of the issue which has been determined in a criminal trial between
the state and the accused. Th effect of a verdict of acquittal pronounc-
ed by a competent court on a lawful charge and after a lawful trial
will be that this verdict will be binding and conclusive in all subsequent
proceedings between the same parties to the adjudication on the same
issue. The principle was essentially used in civil proceedings (res
judicata proveriate accipitur) and has now been extended to criminal
proceedings as well.44

The principle of issue estoppel and the term "res judicata" have
invariably been used to mean one and the same thing. However, a
distinction seems to have been made between the two by the Patna High

41
Supra note 38.
42
1977 Cri. L. J. 431 (Mad.).
48
Corresponding to s. 403, Cr. P. C . 1898.
44
See State of A, P. v. K Meeraiah, A. I. R. 1970 S. C. 771; Pritam Singh v. State of
Punjab, 1956 Cri. L. J. 805 (S.C).
 18Q Annual Survey of Indian Law [1977

Court in Naresh Nonia v. State}* In this case the question arose

whether the finding of issue of fact in an earlier proceeding that the
possession of land in question was not with the complainant could estop
the complainant from tendering evidence in a subsequent proceeding of
theft of crops that he had grown. It was held that the complainant
was not precluded from leading such evidence.

The court took the view that before the principle of issue estoppel
can be applied, the question to be determined is whether in the subse-
quent case, the facts sought to be proved by the prosecution would be
contrary to the finding given on the basis of those facts. The point at
issue between the parties to be adjudicated upon should be the same on
both occasions for the application of issue estoppel. In the instant
case, the main question was as to who had grown the crops in question.
The question as to who is entitled to possession, which had been
decided earlier, is only subsidiary. Therefore, the latter finding could
not operate as a bar to lead evidence on the former question. It was
held that some of the ingredients of "res judicata" and the principle of
issue estoppel could be common but res judicata is estoppel by deed
while the issue estoppel relates to the objection to the reception of
evidence to prove an identical fact which has already been adjudicated
upon in an earlier finding between the parties.

An interesting question related to double jeopardy arose in

Ramanaya v. State** where the petitioner was convicted under section
101, Railways Act and under section 337, Indian Penal Code in respect
of the same act* The petitioner invoked the doctrine of double jeopardy
and contended that he cannot be convicted for two offences for the
same act by virtue of section 71 of the Penal Code and section 26 of
the General Clauses Act, 1897. The court rejected the plea on a
narrower ground and said that both these sections talk of punishment
and not of conviction. Accordingly, the conviction for both the
offences would be legal although the punishment be imposed only
for one.

VI GENERAL EXCEPTIONS TO CRIMINAL RESPONSIBILITY

Mistake of fact
In Keso Sahu v. Saligram Shah*7 the accused had helped a
policeman to stop the buffalo carts of the complainant on the suspicion

46
1977CruL. J. 1181 (Pat.).
46
1977 Cri. L. J. 467 (Pat.).
47
1977 Cri. L.J. 1725 (On.).
 Vol. XIII] Criminal Law and Procedure 181
that rice was being smuggled in the carts. A plea of mistake of
fact under section 79, Indian Penal Code, was invoked by the
accused in a complaint filed against him for wrongful confine-
ment. It was held that the policeman had the power to stop the cart
on suspicion and the help rendered to him by the accused on the asking
of the policeman was given in good faith and belief that the offence of
smuggling was being committed. Later, the suspicion turned out to be
incorrect. However, the protection of section 79, Indian Penal Code
could validly be availed for the acts which they had done in good
faith.

Accident
In Raja Ram v. State** the accused fired a gun at his assailant in
defence of his person. The shots misfired and the assailant escaped;
instead four other persons who were not marked to be the victims got
hurt and were fatally injured. In view of the fact that the shots were
fired in exercise of the right of private defence which accidentally hit the
unintended victims, the accused was entitled to the protection of section
80, Indian Penal Code, unintentionally causing the death of the
unintended victims by way of mere chance.

Doli incapax
The Supreme Court in Hiralal v. State of Bihar*9 critically
examined the defence of doli incapax as stated in section 83 of the
Indian Penal Code. A child below seven years of age is completely
free of any criminal responsibility50 but a child between 7-12 years of
age is qualified to avail the defence of doli incapax if it is proved that
he has not attained sufficient maturity of understanding to understand
the nature and consequences of his conduct on that occasion. In the
instant case the boy participated in a concerted action and used a
sharp weapon for a murderous attack on the deceased. No evidence
was led about the youth's feeble understanding of his action; hence the
defence was not allowed.

Insanity

To take protection of section 84, Indian Penal Code the person

must be non compos mentis at the time of the commission of crime.
The law presumes every person of the age of discretion to be sane

48
1977Cri. L. J. (N.O.C.) 85 (AIL).
49
1977 Cri. L.J. 1921 (S-C).
80
S. 82, Indian Penal Code, 1861.
 182 Annual Survey of Indian Law [1977

unless the contrary is proved; and even if a lunatic has lucid intervals
the law presumes the offence to have been committed in a lucid interval
unless it appears to have been committed during derangement.

In Ram Lai v. State of Rajasthan61 the appellant lacked motive in

killing the eight-year-old boy and the doctor's report showed that he
was a case of epilepsy with retarded mental faculty so as to put him in
the category of severe subnormality. There was no evidence that at
the time of murder the accused was acting in a state of hallucination or
under influence of epileptic insanity. On the contrary, his running
away to his village after the occurrence showed that he was conscious of
the fact, which was enough to demolish the plea of insanity.

The crucial point of time for ascertaining the state of mind of the
accused is the time when the offence was committed. No doubt, the
onus to prove this is on the accused, but he has not to prove the same
affirmatively beyond any reasonable doubt that the person was of
unsound mind and that by reason of unsoundness of mind he was
incapable of knowing the nature of the act.62

In Amrit Bhushan v. Union of IndiahZ the Supreme Court said that

insanity as an exception to criminal liability must rest on the fact that
the accused was incapable of understanding the nature and consequences
of his act at the time of the commission of the offence. If it were not
so the responsibility cannot be absolved. The correctness of the
sentence in such a case cannot be questioned by the Supreme Court
and the court cannot re-examine the facts once the matter has been
rejected by the President in a capital case.

Right of private defence

It is a settled principle of law that it is not for the accused person
to take up the plea of right of private defence. The court has to take
an overall view of the case and if the right of self-defence is brought
home from the evidence on record, that right should be construed
liberally and be granted bearing the fact in mind that its character is
preventive and not retributive. The right of private defence envisages
that no person is expected to run away for safety when faced with
grave and imminent danger to his person and property.

51
1977 Cri. L. J. (N.O.C.) 168 (Raj.); also Benar Singh Tauli v. State, 1977 Cri. L. J.
296 (Gau,).
52
Surju Marandiv. State of Bihar, 1977 Cri. L. J. 1765; also State v. Lilanand, supra
note 36.
53
1977 Cri. L. J. 376 (S. C ) .
 Vol. XIII] Criminal Law and Procedure 183

The right commences at the very apprehension of a grievous injury.

No actual injury need be received before the right is exercised.54 The right
extends even to the extent of causing of death in the event of an assault
with intent to abduct. In Nankan v. State65 a woman was being abducted
by her husband and was being compelled by force to go away from her
paramour's house. It was held that the paramour and his brother were
justified in exercising the right of private defence against the husband
who had the intention to abduct his wife by force.

The right of private defence extends to protect the property against

a trespasser, but the right can be exercised only if there is no time to
have recourse to protection of public authorities.56

A true owner has every right to dispossess or throw out a trespas-

ser while the latter is in the act or process of trespassing. But once
the trespass is accomplished successfully the true owner loses this right.
In such cases he has to take recourse to the remedies available under
the law.67

VII CHEATING

The essence of an offence of cheating under section 415, Indian

Penal Code is that damage or harm caused by deception must be proved
in relation to the person deceived. However, in transactions of a
commercial nature the breach of promises which may resultantly yield
loss may not necessarily fall within the ambit of cheating. Thus,
where the complainant supplied goods to the accused on the latter's
tepresentation that the price would be sent at a later date, which
turned out to be untrue, it was held not to lay the basis for a criminal
action.68 Deception is, indeed, an essential ingredient of cheating, but it
has not been defined under the Code. A person is deceived when he
tvas induced to believe that as true which was untrue. This intention
must precede the action. In fact, in most of the contractual transac-
tions where deceptions occur the intention is lacking at the time of
entering into the transaction. The deception caused is the resultant
effect of breach of contract in some respect which causes loss to a
party. A loss caused by deception in a cheating case or by way of
damages through breach of contract may be one and the same thing to

M
M. C. Dutta v. State, 1977 Cri. L. J. 506 (Gau.).
85
1977 Cri. L. J. (N.O.C.) 116 (All.)*
66
M. Rahman v. State, 1977 Cri. L. J. 1293 (Gau.).
67
Ram Rattan v. State, 1977 Cri L. J. 433 (S C).
68
Fazlur Rahman v. Surinder Kumar, \911 Cri. L. J. (N.O.C.) 15 (H.P.).
 184 Annual Survey of Indian Law [1977
the victim, but the criminal processes cannot be resorted to, to achieve
the result where deception was not premeditated. Thus, in Ratanlal
Sharma v. Mangeram Ghanshyamdas69 where the accused refused to
take delivery of the goods on account of fall in prices, it cannot be
said to have induced the complainant to part with his goods by way of
deception.
The cheating is to take place in relation to the delivery of
property. It is not necessary that the property must have a money
value or a market value in the hand of the person cheated, but once it is
induced to be parted with and it becomes a thing of value in the hand
of the person who may get possession of it as a result of cheating, it
would fulfill the requirements. Thus, a passport was held to be a
property within the meaning of sections 415 and 420, Indian Penal
Code for it has the characteristics and importance of being a property
as envisaged in these provisions.60

VIII PROBATION
The law relating to probation of offenders has infused a new trend
in the field of penology. The courts have often been making use of
probation in lieu of sentencing individual offenders. The situations
where the benefit of probation can be availed of are becoming clearer
through judicial decisions. In Yaduraj Singh v. State*1 the benefit
could not be given because reliable evidence showing true ages of the
accused person had not been led and the Supreme Court was reluctant
to entertain the plea at the stage of appeal. In Rajoo v. State of
Rajasthan*2 several accused had been tried for rioting, hurt, mischief
by fire and trespass. Amongst the appellants two had been tried and
convicted of hurt and the third one for having committed mischief by
fire or explosive substance with intent to destroy the house. The High
Court accepted the plea of probation in the case of two accused persons
who had been convicted of the offence of hurt, but declined to give the
benefit to the third one because his conviction for the offence of
mischief under section 436 was of a grave nature and punishable with
imprisonment for life.
In State v. Ramados*z the accused persons had obtained loans from
the bank by making a fraudulent representation to it. Even though

59
1977 Cri. L. J. (N. O. C.) 19 (Mad.).
60
N. M. Chakroborty v. State, 1977 Cri. L. J. 961 (S.C).
61
Supra note 35a
"1977 Cri. L. J. 837 (Raj.).
** 1977 Cri. L J . 2048 (Mad.).
Vol. XIII] Criminal Law and Procedure 185

each advancement of the loan was made on security of property and,

on account of it, there had been no loss to the bank, yet each borrower
had made a wrongful gain to himself by making dishonest representa-
tion to the bank in getting the loan amount and had, thus, committed
the offence of cheating. On the question of sentence the High Court
took the view that these are not the cases where any deterrent or severe
sentence is called for and, consequently, wiped out the stigma of each
offender by mere admonishment under section 3 of the Probation of
Offenders Act, 1958.

The benefit of probation was availed of by the accused for the offence
of selling adulterated groundnut oil mixed with safflower oil.64 The
court rested its decision on the basis that this oil, with which the
adulteration was done, was costlier than groundnut oil and it was not
at all injurious to health. Note was also taken of the fact that the
matter had been pending for the last three years. All these circums-
tances cumulatively led the court to give the benefit of probation to the
accused. In Shiv Dayal v. The State*6 the accused was a carrier who
was carrying milk on behalf of others. It was found adulterated,
but in view of the fact that the matter had remained pending for 7
years and that the accused was 16 years of age at the time of com-
mission of the offence, he was let off under the Probation of Offenders
Act.

The Kerala High Court,66 while dealing with a matter of food

adulteration for purposes of probation, took a correct stand and reiterat-
ed that the young age of the offender guilty of an offence of selling
adulterated food article* is not a good ground for leniency or preferential
treatment. The release of an offender under probation is determinable
not by the age alone, but by his character, antecedents, nature of the
offence and circumstances under which it was committed.67 In fact, the
report of the probation officer regarding the character of the accused
is not necessary if his age is over twenty-one years.68

The Bombay High Court in Prabhakar v. State*9 took the view that
in cases of food adulteration a manufacturer cannot claim that he is

64
Public Prosecutor v. Umedmall Gohalal, 1977 Cri. L.J. (N.O.C.) 266 (A.P.),
65
1977 Cri. L.J. 1548 (M.P.).
66
Abdul Razack v. Food Inspector, Cochin, \911 Cri. LJ. 669 (Kcr.).
67
See also Hansay. State, 1977 Cri. L.J. 1601 (S.C).
68
See Harnam Singh v. State of Punjab, 1977 Cri. L.J. 728 (Punj.).
•91977 Cri. LJ. 12X
 186 Annual Survey of Indian Law [1977
unknowingly passing an adulterated food article, though a retailer can
do so despite the fact that the liability for the offence is absolute.

In Badan Singh v. State of U.P.70 the Allahabad High Court answered

the question in the affirmative that the benefit of the law relating to
probation can be allowed to an accused who is found guilty of an
offence under the Prevention of Food Adulteration Act, to which the
proviso of section 16 of the Act does not apply.71

The trend of decisions of various High Courts in regard to the benefit

of probation to the food adulteration offences is not wholesome in view
of the fact that the latter are posing a grave threat to the national
health. The antisocial acts of these wrongdoers ought not to be viewed
leniently or lightly. Their gleeful game of piling up profits by butcher-
ing the health of the individuals and, consequently, of the society cannot
be condoned by extending the scope of the liberal trend in penology.
It has been pointed out earlier also that "the peddlers of positive
danger to food and health, are not the ones who are stray innocent
dealers and who might usefully be subjected to probation treatment".72
The extended coverage given by courts to the probation measure is,
thus, at cross purposes with the social policy. The Supreme Court has
now also clearly given the guidelines in this respect. Rejecting the con-
tention that the probation measure be made applicable to the offences
of food adulteration, the Supreme Court in Prem Ballab v. State79
said :
[T]he imperative of social defence must discourage the appli-
cability of the probation principle. No chance can be taken
by society with a man whose antisocial activities in the guise of
a respectable trade, jeopardise the health and well being of
numerous innocent consumers. The adulterator is a social
risk. It might be dangerous to leave him free to carry on his
nefarious activities by applying the probation principle to
him....74

It is high time that the High Courts took note of the risks involved
in extending the principle of probation to cases of food adulteration.

70
1977 Cri. L J . 412.
71
Ibid • also see Piyarey Lai v. State, 1977 Cri. L J . 1035 (All.).
72
D.C Pande & V. Bagga, 'Probation — The Law and Practice in India', 16 JJ.LJ. 48
at 86 (1974).
73
1977 Cri. L J. 12 ( S C ) .
71
M a t 18.