Criminal law

The High Court (HC) cannot direct the investigation agency not to arrest the accused during the course of investigation or to ask the Trial Magistrate to admit the accused on bail while dismissing the application of the accused for quashing the Fist Information Report (FIR) under Section 482 Criminal Procedure Code, 1973 (CrPC).

When a person is arrested on the charge of an offence, the Police Officer not below the rank of a Sub Inspector or a person under his direction can ask a medical practitioner to make an examination of the person arrested as is reasonably necessary to ascertain the facts which may afford such evidence of commission of the offence.

In every criminal case, on completion of the police investigation, the police have to file a final Police Report, under Section 173(2) of the CrPC. Police investigation starts with what we call First Information Statement (FIS) by some informant, then comes First Information Report (FIR) and ends with submission of final Police Report, stated as above, clearly denoting whether to proceed against the accused or not. The FIS leads to the recording of FIR.

In order to attract Section 294(b) IPC, it is necessary for the prosecution to prove that the offence had been committed in the public place. Public place is one where the public go, no matter whether they have a right to go or not. The public place may vary from time to time and what the court has to consider is whether the particular place is a public place or not.

A person marrying for the second time while his first marriage is in subsistence is an offence. Such a marriage, called bigamy, does not hold any legal validity. Nevertheless, the victims of bigamy can still approach the court for claiming maintenance. In order to attract the offence of bigamy, it is necessary that essential ceremonies, rites or procedures constituting a marriage should have performed in both the marriages. In essence, a marriage means solemnisation with proper ceremonies appropriate under the custom or law followed by the party in marriage.

No prior sanction of the government is required, under section 17A of Prevention of Corruption Act, 1988 (PC Act), for offences like falsification of accounts, breach of trust and misappropriation of funds or acts which are ex facie criminal in nature. The Kerala High Court held this in Shankara Bhat v. State of Kerala & Ors, while deciding a few connected matters.

The High Court of Kerala in Thadevoose Sebastian v The Regional Passport Office says that the grant of permission by the Magistrate enabling an accused to travel abroad will be of great significance, especially since it will be a process of balancing the fundamental right of a citizen to travel abroad and the need to ensure the presence of the accused during trial.

Sexual intercourse of a man with a woman against her will or without her free consent is rape under, Section 375 of the Indian Penal Code (IPC). The consent should be an unequivocal voluntary agreement of the woman by words, gesture or any form of verbal or non-verbal communication, by which she communicates her willingness to participate in the sexual act in question.

In Krishnan M.C vs State Of Kerala, a Division Bench of the Kerala High Court, in view of the conflicting decisions in different cases, examined as part of a reference whether the accused has got a right to get the second sample taken for analysis to the Chemical Examiner’s Laboratory, under Section 8 of the Kerala Abkari Shops Disposal Rules,2002. It was decided by the bench that the accused has no right seek chemical analysis of B Sample. There is no specific provision in the law for the purpose, as well.

When a complainant dies, the Magistrate cannot proceed with the case merely on the ground that the pleader, appointed by the deceased-complainant, is present in the court to continue the proceedings. In such a scenario, his pleader retains no authority and cannot, therefore, be allowed to continue to proceed with the complaint in the capacity of the pleader of the deceased-complainant. Therefore, he cannot be allowed to represent the complaint, under Section 256(2) of the Criminal Procedure Code (CrPC).