6, July, 2018
CrPC Section 102 – Power of police officer to seal the shop - Under Section 102(1) of CrPC the police have no power to seal the immovable property and the word seize under Section 102 of the CrPC used under Section 102 of the CrPC would mean only actual taking possession of the movable property.
Held, in exercise of power under Section 102 of the CrPC, the police has seized three trucks of iron angles and other objects weighing about 40 tonnes and has given the same to the possession of the employees of the petitioner, but thereafter, proceeded to seal the shop/immovable property held/owned by the petitioner. Police officer has no such power to seal the immovable property of the petitioner. Accordingly, the Station House Officer, Police Station Chakarbhata is directed to remove the seal on the immovable property of the petitioner and vacate the premises of the petitioner after making inventory of the articles which are lying on the shop. The said officer is also directed to make provision for keeping of the articles so seized for its production before the court as and when required. The said exercise shall be done within ten days from the date of receipt of a copy of this order. The petitioner will be entitled for vacant possession of the said premises. 2018 PLR IJ 17
IPC S. 149 - In cases where a large number of accused constituting an 'unlawful assembly' are alleged to have attacked and killed one or more persons, it is not necessary that each of the accused should inflict fatal injuries or any injury at all - Invocation of Section 149 is essential in such cases for punishing the members of such unlawful assemblies on the ground of vicarious liability even though they are not accused of having inflicted fatal injuries in appropriate cases if the evidence on record justifies - The mere presence of an accused in such an 'unlawful assembly' is sufficient to render him vicariously liable under Section 149 IPC for causing the death of the victim of the attack provided that the accused are told that they have to face a charge rendering them vicariously liable under Section 149 IPC for the offence punishable under Section 302 IPC - Failure to appropriately invoke and apply Section 149 enables large number of offenders to get away with the crime. Held, When a large number of people gather together (assemble) and commit an offence, it is possible that only some of the members of the assembly commit the crucial act which renders the transaction an offence and the remaining members do not take part in that 'crucial act' for example in a case of murder, the infliction of the fatal injury. It is in those situations, the legislature thought it fit as a matter of legislative policy to press into service the concept of vicarious liability for the crime. Section 149 IPC is one such provision. It is a provision conceived in the larger public interest to maintain the tranquility of the society and prevent wrong doers (who actively collaborate or assist the commission of offences) claiming impunity (Editor - Immunity) on the ground that their activity as members of the unlawful assembly is limited. The responsibility of the prosecution and/or of the Court (in a case like the one at hand where large numbers of people (5 or more) are collectively accused to have committed various offences and subjected to trial) in examining whether some of the members of such group are vicariously liable for some offence committed by some of the other members of such group requires an analysis. Such analysis has two components - (i) the amplitude and the vicarious liability created under Section 149; and (ii) the facts which are required to be proved to hold an accused vicariously liable for an offence. (2018)2 SCeJ 1183
IPC S. 149 - Unlawful assembly - Common object - Explained . Held, the common object of assembly is normally to be gathered from the circumstances of each case such as the time and place of the gathering of the assembly, the conduct of the gathering as distinguished from the conduct of the individual members are indicative of the common object of the gathering. Assessing the common object of an assembly only on the basis of the overt acts committed by such individual members of the assembly, in our opinion is impermissible. For example, if more than five people gather together and attack another person with deadly weapons eventually resulting in the death of the victim, it is wrong to conclude that one or some of the members of such assembly did not share the common object with those who had inflicted the fatal injuries (as proved by medical evidence); merely on the ground that the injuries inflicted by such members are relatively less serious and non fatal. For mulcting liability on the members of an unlawful assembly under Section 149, it is not necessary that every member of the unlawful assembly should commit the offence in prosecution of the common object of the assembly. Mere knowledge of the likelihood of commission of such an offence by the members of the assembly is sufficient. For example, if five or more members carrying AK 47 rifles collectively attack a victim and cause his death by gunshot injuries, the fact that one or two of the members of the assembly did not in fact fire their weapons does not mean that they did not have the knowledge of the fact that the offence of murder is likely to be committed. The identification of the common object essentially requires an assessment of the state of mind of the members of the unlawful assembly. Proof of such mental condition is normally established by inferential logic. If a large number of people gather at a public place at the dead of night armed with deadly weapons like axes and fire arms and attack another person or group of persons, any member of the attacking group would have to be a moron in intelligence if he did not know murder would be a likely consequence. (2018)2 SCeJ 1183
Criminal Procedure Code, S. 438 - Anticipatory Bail - (1) Whether the protection granted to a person under Section 438 CrPC should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail? (2) Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court - In the light of the conflicting views of the different Benches of varying strength, matter referred for consideration by a larger Bench.
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