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PRE-TRIAL PROCESS AND POLICING Case Analysis & Judicial Discourse

G.S. Bajpai

Sidharth Dahiya

PRE-TRIAL PROCESS AND POLICING

Case Analysis & Judicial Discourse

Prof. (Dr.) G.S. Bajpai Professor and Registrar

National Law University Delhi

Sidharth Dahiya Assistant Registrar (Academic) National Law University Delhi

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Due care and diligence has been taken while editing and printing this book. Neither the editors nor the publisher of the book holds any responsibility for any mistake that may have inadvertently crept in. The judgments incorporated in the book have been referred from government websites and various open access internet web resources facilitating access of judgments of Supreme Court of India and available to use under Section 52 (q)(iv) of the Copyright Act 1957. The publisher and editor shall not be liable for any direct, consequential, or incidental damages arising out of the use of this book. In case of binding mistake, misprints, or missing pages etc., the publisher’s entire liability, and your exclusive remedy, is replacement of this book within one month of purchases by similar edition/ reprint of the book.

NATIONAL LAW UNIVERSITY DELHI

Prof. (Dr.) Ranbir Singh Vice-Chancellor

Foreword The conspectus of criminal law in the recent past has expanded significantly and therefore there is a growing demand in the legal circles to have the literature focusing on micro themes in this field. It is in this context, the idea contained in the present book devoted to the subject of pre- trial process from the perspective of policing is highly relevant. A range of due process entitlements have been guaranteed in the Constitution of India to the accused and accordingly the role of law enforcement agency is shaped. Pre-trail process includes the stages namely registration of FIR, Investigation including arrest, search and seizure, custody, bail etc. It is apparent that a large number of issues relating to the denial of Human Rights vis-a-vis police relate to some of these stages. The protections at various stages of pre-trial are in consonance with the framework of fundamental rights provided in the Constitution of India. The violation relating to pre-trail protection provided in the procedural law bring considerable disgrace to the law enforcement agency and the criminal law administration. A large number of complaints against police pertain to these issues. This entire terrain has received significant attention from the Apex Court number of landmark judgements pertaining to FIR, arrest and investigation have been delivered on these issues. Resultantly, criminal law has been evolving and expanding to capture the modern thinking on these subjects. The constant development in these areas require the judges, advocates, juries, law enforcement agencies and students to keep themselves updated on these additions in the criminal law. It is in this context the present book is highly significant as it fulfils a long standing need to have a compendium of judgements related to pre-trial process from the perspective of police. Divided into 11 Chapters, this book offers an easy reading as the cases have not only been divided into useful categories but also the synopsis of the case has been presented in most lucid form. I am sure that this ready reckoner will be highly useful to the academia and practioners in their consultation of the case laws in this emerging field of criminal law.

(Ranbir Singh)

A University of Law Established in 2008 by Act No. 1 of 2008 of Delhi) Sector-14, Dwarka, New Delhi – 110 078, Ph: +91 11 2803 4253 Fax: +91 11 2803 4256

Email: [email protected], [email protected] website: http://nludelhi.ac.in

Preface

The criminal process is a dynamic entity. The salience of criminal procedure is highly relevant in a constitutional democracy characteristic by the rule of law. The procedural justice is a key assurance provided within the framework on the constitutional and the criminal procedure law. The current emphasis on procedural law becomes more relevant as it has been able to protect the rights and interests of the participants in the criminal process. The criminal procedure law in India, in the recent past, has seen some drastic changes in view of several contemporary developments relating to the punishment, sentencing and victims of crime.

The code of criminal procedure lays down the basic principles of conducting the process of arrest, trail, seizure, investigation within the framework of Constitution of India.

While there is a growing literature on various aspects of criminal procedure, the classified literature on micro aspects of subject reflecting a thematic discussion is hardly available. The most literature available in one piece containing the entire terrain of criminal procedure law in the form of commentary on case material. This often obstructs easy consultation by specific researchers who are keen about the intensive study of the aspects of criminal process.

The present compilation in the form of a book addressed to this issue where a carefully selected range of Supreme Court Cases have been identified, collected and analysed with respect to Pre-Trail Process in the context of policing. This sector is crucially important as one of the prominent feature of criminal procedure code is its robust protection that is provided to the accused at the pre-trail stage especially when he/she confronts the police agency. It is at this stage the rights and due process entitlements become important. This section of CrPC is highly debated and a range of significant case laws are available on this subject.

The present book is therefore a compilation of judicial pronouncements on arrest, investigation, search and seizure etc. Divided into 11 Chapters, this book presents cases available in the public domain in a synoptic form. Presented in a snapshot view, this collection offers a quick view of the facts and the ratio of the cases in most lucid manner. As on many occasions the researchers, lawyers, judges and jurists are in need or a quick consultation to know about the contents of the cases. It is in this context, this book becomes an easy reference for consultation by the researchers and any other persons inclined to undertake a research on these subjects.

G. S. Bajpai Sidharth Dahiya

Contents

Foreword

Preface

Chapter 1 JURISDICTION 1

Chapter 2 REGISTRATION OF FIRST INFORMATION REPORT 16

Chapter 3 POWER OF INVESTIGATION 40

Chapter 4 POLICE INTERROGATION 76

Chapter 5 POLICE ARREST AND CUSTODY 108

Chapter 6 HAND CUFFING AND SECURITY 135

Chapter 7 REMAND 158

Chapter 8 SEARCH AND SIZURE 179

Chapter 9 CASE DIARY 202

Chapter 10 CHARGE 230

Chapter 11 DYING DECLARATION 257

List of Case Laws

CHAPTER 1- JURISDICTION 1. Prem kumar and Ors. vs. State of Kerala 6 2. Ruchi Agarwal vs. Amit Kumar Agrawal and Ors 7 3. Paulmeli and Anr. vs. State of Tamil Nadu tr. Insp. of Police 8 4. Rasiklal Dalpatram Thakkar vs. State of Gujarat and Ors 9 5. Balram Singh and Anr. vs. State of Punjab 12 6. Shiv Shankar Singh vs. State of Bihar and Anr 13

CHAPTER 2- REGISTRATION OF FIRST INFORMATION REPORT 1. Lalita Kumari vs. Govt. of U.P. and Ors. 18 2. Himmat Sukhadeo Wahurwagh and Ors. vs. State of Maharashtra 20 3. Upkar Singh vs. Ved Prakash and Ors 21 4. State of N.C.T. of Delhi vs. Ajay Kumar Tyagi 22 5. Kailash Gour and Ors. vs. State of Assam 23 6. Inspector of Police, Tamil Nadu vs. John David 27 7. Umesh Kumar vs. State of Andhra Pradesh 30 8. Shashikant vs. Central Bureau of Investigation and Ors. 34 9. Anju Chaudhary vs. State of U.P. and Anr. 35

CHAPTER 3- POWER OF INVESTIGATION 10. T.T. Antony vs. State of Kerala and Ors. 40 11. D. Venkatasubramaniam and Ors. vs. M.K. Mohan 42 Krishnamachari and Anr. 12. Vinay Tyagi vs. Irshad Ali @ Deepak and Ors. 44 13. Kishan Lal vs. Dharmendra Bafna and Anr. 46 14. M.R.F. Ltd. vs. Manohar Parrikar and Ors. and M.R.F. Ltd. 49 and Anr. vs. The State of Goa and Anr. 15. Glass Fibre Ltd. vs. State of Goa and Anr. 51 16. M. Narayandas vs. State of Karnataka and Ors 53 17. Hemant Dhasmane vs. Central Bureau of Investigation and anr. 55 18. Lalita Kumari vs. Govt. of U.P. and Ors. 56 19. Divine Retreat Centre vs. State of Kerala and Ors. 60

x List of Case Laws

20. Smt. Mona Panwar vs. The Hon'ble High Court of Judicature at Allahabad through its Registrar and Ors.

62

21. Lalita Kumari vs. Government of U.P. and Ors. And Samshudheen vs. State, represented by Dy. Superintendent of Police Tamil Nadu And Baldev Singh Cheema vs. State of Punjab and Ors. And Daljit Singh Grewal vs. Ramesh Inder Singh

64

22. State of Orissa vs. Mahima @ Mahimananda Mishra and Ors. 67 23. State of Karnataka and Anr. vs. Pastor P. Raju 68 24. Mithilesh Kumar Singh vs. State of Rajasthan 71 25. Anju Chaudhary vs. State of U.P. and Anr. 73

CHAPTER 4- POLICE INTERROGATION

1. Smt. Selvi and Ors. vs. State of Karnataka 80 2. Aloke Nath Dutta and Ors. vs. State of West Bengal 85 3. Mohammed Ajmal Mohammad Amir Kasab @ Abu

Mujahid vs. State of Maharashtra And State of Maharashtra vs. Fahim Harshad Mohammad Yusuf Ansari and Anr. And Radhakant Yadav vs. Union of India (UOI) and Ors.

89

4. John Pandian vs. State Rep. by Inspector of Police, T. Nadu 95 5. OMA @ Omprakash and Anr. vs. State of Tamil Nadu 98 6. Senior Intelligence Officer vs. Jugal Kishore Samra 101 7. Balasaheb @ Ramesh Laxman Deshmukh vs. State of

Maharashtra and Anr. 103

8. Ramesh Laxman Deshmukh vs. State of Maharashtra and Anr

105

CHAPTER 5- POLICE ARREST AND CUSTODY

1. Bhagwan Singh and Ors. vs. State of M.P. 112 2. State Rep. by Inspector of Police and Ors. vs. N.M.T. Joy

Immaculate 115

3. Raghuvansh Dewanchand Bhasin vs. State of Maharashtra and Anr.

118

4. Sanatan Naskar and Anr. vs. State of West Bengal 121 5. Ram Singh vs. Sonia and Ors. 123 6. Rajoo and Ors. vs. State of M.P. 127 7. Prithipal Singh etc. vs. State of Punjab and Anr. etc. 129 8. Madhu vs. State of Kerala 132

List of Case Laws xi

CHAPTER 6- HAND CUFFING AND SECURITY1. National Legal Services Authority vs. Union of India (UOI)

and Ors. 144

2. State of Uttaranchal vs. Balwant Singh Chaufal and Ors 147 3. Hardeep Singh vs. State of Madhya Pradesh 150 4. Priya Gupta and Anr. vs. Ministry of Health and Family

Welfare and Ors. 152

5. Sadashio Mundaji Bhalerao vs. State of Maharashtra 154 CHAPTER 7- REMAND

6. Devender Kumar and another etc. vs. State of Haryana others etc.

162

7. Mithabhai Pashabhai Patel And Others vs. State of Gujarat 165 8. Syed Hakkim And Anr. vs. State, Dy. Superintendent of

Police, Karur, Tamil Nadu 167

9. Raju vs. State By Inspector of Police 169 10. Aqeel Ahmad vs. State of Uttar Pradesh 171 11. A. Maharaja vs. State Of Tamil Nadu 174 12. Dinesh Dalmia vs. C.B.I. 176

CHAPTER 8- SEARCH AND SIZURE

13. Manish Dixit and Ors. vs. State of Rajasthan 186 14. M. Prabhulal vs. The Assistant Director, Directorate of

Revenue Intelligence 189

15. Bharatbhai Bhagwanjibhai vs. State of Gujarat 191 16. State of Himachal Pradesh vs. Pawan Kumar with

State of Rajasthan vs. Bhanwar Lal 194

17. Jayant Kumar Sharma vs. State of Madhya Pradesh 197 18. Khet Singh vs. Union of India (UOI) 198 19. Abdul Rahman vs. State of Kerala 201

CHAPTER 9- CASE DIARY

20. Ganga Dhar Kalita vs. State of Assam and others 202 21. Tomaso Bruno and another vs. State of Uttar Pradesh 203 22. People's Union for Civil Liberties and another vs. State of

Maharashtra and others 206

23. Saurabh Kumar vs. Jailor, Koneila Jail and another 208 24. Sobaran Singh and others vs. State of Madhya Pradesh 210 25. Arnesh Kumar vs. State of Bihar and another 213 26. Ram Kumar and others vs. State of Madhya Pradesh 215 27. Bal Manohar Jalan vs. Sunil Paswan and another 218

xii List of Case Laws

28. Sudarshan and another vs. State of Maharashtra 220 29. Lalit Kumar Yadav @ Kurhi vs. State of Uttar Pradesh 222 30. Anjani Kumar Chaudhary vs. State of Bihar and another 225 31. Thimma reddy and others vs. State of Karnataka 227

CHAPTER 10- CHARGE

32. State of Uttar Pradesh vs. Ram Sajivan and Others 230 33. Satish Narayan Sawant vs. State of Goa 233 34. Maniben vs. State of Gujarat 235 35. Rajiv Modi vs. Sanjay Jain and Others 238 36. Ganesh Gogoi vs. State of Assam 240 37. Musauddin Ahmed vs. The State Of Assam 242 38. Ahmed Hussein Vali Mohammed Saiyed and Another vs.

State of Gujarat 244

39. Nafe Singh vs. State of Haryana 247 40. Jagan Shravan Patil And Anr vs. State of Maharashtra 249 41. Manish Jalan vs. State of Karnataka 251 42. Har Prasad And Anr vs. Ranveer Singh And Anr 253 43. Ajay Singh vs. State of Maharashtra 254

CHAPTER 11- DYING DECLARATION

44. Vutukuru Lakshmaiah vs. State of Andhra Pradesh 260 45. State of Maharashtra Etc. vs. Pravin Mahadeo Gadekar Etc 263 46. Vijay Pal vs. State Govt. (NCT of Delhi) 265 47. Ramakant Mishra @ Lalu Etc. vs. State of Uttar Pradesh 268 48. Tejram Patil vs. State of Maharashtra 271 49. State of Karnataka vs. Suvarnnamma and another 273 50. Jumni and Others vs. State of Haryana 276 51. Bhadragiri Venkata Ravi vs. Public Prosecutor High Court Of

A.P., Hyderabad 278

52. Ahir Devayat Bhima vs. State of Gujarat 281

Chapter 1

JURISDICTION

S.177 to 188 CrPC - Territorial Jurisdiction of Court to take Cognizance of Offences

Section 14: Local Jurisdiction of Judicial Magistrates (1) Subject to the control of the High Court, the Chief Judicial Magistrate may, from time to time, define the local limits of the areas within which the Magistrates appointed under section 11 or under section 13 may exercise all or any of the powers with which they may respectively be invested under this Code:

Provided that the Court of a Special Judicial Magistrate may hold its sitting at any place within the local area for which it is established].

(2) Except as otherwise provided by such definition, the jurisdiction and powers of every such Magistrate shall extend throughout the district.

(3) Where the local jurisdiction of a Magistrate, appointed under section 11 or section 13 or section 18, extends to an area beyond the district, or the metropolitan area, as the case may be, in which he ordinarily holds Court, any reference in this Code to the Court of Session, Chief Judicial Magistrate or the Chief Metropolitan Magistrate shall, in relation to such Magistrate, throughout the area within his local jurisdiction, be construed, unless the context otherwise requires, as a reference to the Court of Session, Chief Judicial Magistrate, or Chief Metropolitan Magistrate, as the case may be, exercising jurisdiction in relation to the said district or metropolitan area.]

Section 26: Courts by which offences are triable Subject to the other provisions of this Code,

(a) any offence under the Indian Penal Code (45 of 1860) may be tried by-

(i) the High Court, or

(ii) the Court of Session, or

(iii) any other Court by which such offence is shown in the First Schedule to be triable;

2 Pre-Trial Process and Policing

“Provided that any offence under section 376 and sections 376A to 376D of the Indian Penal Code shall be tried as far as practicable by a Court presided over by a woman.”.

(b) any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no Court is so mentioned, may be tried by, (i) the High Court, or (ii) any other Court by which such offence is shown in the First Schedule

to be triable. Section 29: Sentences which Magistrates may pass (1) The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years. (2) The Court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding 19 [ten thousand rupees], or of both. (3) The Court of a Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding 20 [five thousand rupees], or of both. (4) The Court of a Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the Court of a Magistrate of the first class. Section 177 to 189 (Territorial jurisdiction of court to take cognizance of offences) Section 177: Ordinary place of inquiry and trial: Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. Section 178: Place of inquiry or trial. (a) When it is uncertain in which of several local areas an offence was

committed, or (b) where an offence is committed partly in one local area and partly in

another, or (c) where an offence is a continuing one, and continues to be committed in

more local areas than one, or (d) where it consists of several acts done in different local areas, it may be

inquired into or tried by a Court having jurisdiction over any of such local areas.

Territorial Jurisdiction 3

Section 179: Offence triable where act is done or consequence ensues: When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued. Section 180: Place of trial where act is an offence by reason of relation to other offence: When an act is an offence by reason of its relation to any other act which is also an offence or which would be an offence if the doer were capable of committing an offence, the first-mentioned offence may be inquired into or tried by a Court within whose local jurisdiction either act was done. Section 181: Place of trial in case of certain offences. (1) Any offence of being a thug, or murder committed by a thug, of dacoity, of dacoity with murder, of belonging to a gang of dacoits, or of escaping from custody, may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the accused person is found. (2) Any offence of kidnapping or abduction of a person may be inquired into or tried by a Court within whose local jurisdiction the person was kidnapped or abducted or was conveyed or concealed or detained. (3) Any offence of theft, extortion or robbery may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the stolen property which is the subject of the offence was possessed by any person committing it or by any person who received or retained such property knowing or having reason to believe it to be stolen property. (4) Any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person. (5) Any offence which includes the possession of stolen property may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the stolen property was possessed by any person who received or retained it knowing or having reason to believe it to be stolen property. Section 182: Offences committed by letters, etc. (1) Any offence which includes cheating may, if the deception is practised by means of letters or telecommunication messages, be inquired into or tried by any Court within whose local jurisdiction such letters or messages were sent or were received; and any offence of cheating and dishonestly inducing delivery of property may be inquired into or tried by a Court within whose


local jurisdiction the property was delivered by the person deceived or was received by the accused person. (2) Any offence punishable under section 495 or section 494 of the Indian Penal Code (45 of 1860) may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the offender last resided with his or her spouse by the first marriage [, or the wife by first marriage has taken up permanent residence after the commission of offence]. Section 183: Offence committed on journey or voyage. When an offence is committed, whilst the person by or against whom, or the thing in respect of which, the offence is committed is in the course of performing a journey or voyage, the offence may be inquired into or tried by a Court through or into whose local jurisdiction that person or thing passed in the course of that journey or voyage. Section 184: Place of trial for offences triable together: Where (a) the offences committed by any person are such that he may be charged

with, and tried at one trial for, each such offence by virtue of the provisions of section 219 , section 220 or section 221 , or

(b) the offence or offences committed by several persons are such that they may be charged with, and tried together by virtue of the provisions of section 223 , the offences may be inquired into or tried by any Court competent to inquire into or try any of the offences.

Section 185: Power to order cases to be tried in different sessions divisions. Notwithstanding anything contained in the preceding provisions of this Chapter, the State Government may direct that any cases or class of cases committed for trial in any district may be tried in any sessions division: Provided that such direction is not repugnant to any direction previously issued by the High Court or the Supreme Court under the Constitution, or under this Code or any other law for the time being in force. Section 186: High Court to decide, in case of doubt, district where inquiry or trial shall take place: Where two or more Courts have taken cognizance of the same offence and a question arises as to which of them ought to inquire into or try that offence, the question shall be decided (a) if the Courts are subordinate to the same High Court, by that High

Court; (b) if the Courts are not subordinate to the same High Court, by the High

Court within the local limits of whose appellate criminal jurisdiction the proceedings were first commenced, and thereupon all other proceedings in respect of that offence shall be discontinued.


Section 187: Power to issue summons or warrant for offence committed beyond local jurisdiction. (1) When a Magistrate of the first class sees reason to believe that any person within his local jurisdiction has committed outside such jurisdiction (whether within or outside India) an offence which cannot, under the provisions of sections 177 to 185 (both inclusive), or any other law for the time being in force, be inquired into or tried within such jurisdiction but is under some law for the time being in force triable in India, such Magistrate may inquire into the offence as if it had been committed within such local jurisdiction and compel such person in the manner hereinbefore provided to appear before him, and send such person to the Magistrate having jurisdiction to inquire into or try such offence, or, if such offence is not punishable with death or imprisonment for life and such person is ready and willing to give bail to the satisfaction of the Magistrate acting under this section, take a bond with or without sureties for his appearance before the Magistrate having such jurisdiction. (2) When there are more Magistrates than one having such jurisdiction and the Magistrate acting under this section cannot satisfy himself as to the Magistrate to or before whom such person should be sent or bound to appear, the case shall be reported for the orders of the High Court. Section 188: Offence committed outside India: When an offence is committed outside India (a) by a citizen of India, whether on the high seas or elsewhere; or (b) by a person, not being such citizen, on any ship or aircraft registered in

India, he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found:

Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government. Territorial jurisdiction refers to jurisdiction over an area arising in or involving persons residing within a defined territory. It can also be the territory over which a government, one of its courts, or one of its subdivisions has jurisdiction. The hon’ble Supreme Court has played an efficient role in dealing with this subject of territorial jurisdiction in connection with police.


1 Premkumar and Ors.

Vs. State of Kerala

Decided on: 19.12.20081

Facts of the case - Jeeja, the deceased was married on 12.09.1998 with the first appellant herein, Dr. Premkumar at Attingal. They had been residing at Chenkkottah, in the district of Tenkasi in the State of Tamil Nadu. She committed suicide at her matrimonial house which is in the State of Tamil Nadu on 14.02.2003. Appellant No. 2 herein, father-in-law of the deceased, informed the Courtallam Police about the said unnatural death pursuant where to a case being Crime No. 64/2003 under Section 174 of the Code of Criminal Procedure (Cr.P.C.) was registered. The body of the deceased was subjected to inquest by the Sub Divisional Executive Magistrate and Revenue Divisional Officer, Tenkasi and an enquiry was conducted by the said officer and a report was submitted before the Deputy Superintendent of Police, Tenkasi The court held that- In a case of this nature and following the aforementioned decisions and particularly in view of the fact that the police at Courtallam, Tamil Nadu had already been informed, although stricto sensu, the same cannot be construed to be an FIR within the meaning of provisions of Section 154, Cr.P.C., and, thus, F.I.R. lodged at Kadakkavoor Police Station was maintainable, we are of the opinion that the interest of justice would be subserved if the investigation and consequent trial is transferred to Police Officer in charge of Courtallam Police Station, Tamil Nadu. All the materials collected by Kadakkavoor Police Station, Kerala shall be transferred to the officer incharge of Courtallam Police Station, Tamil Nadu. The officer incharge of Kadakkavoor Police Station, Kerala, must ensure that in the event a charge-sheet is filed and cognizance of offence under Section 304B IPC is taken, witnesses who are available within his jurisdiction shall be produced. We have passed this unusual order keeping in view the specific defence raised by the appellants that the deceased had been suffering from some mental illness. However, with a view that a fair investigation is carried out we would direct that the Superintendent of Police of the concerned district at Tamil Nadu shall himself make an investigation and/or cause the same to be made by a highly responsible officer.

1. 2009-1-LW (Crl) 600.


2 Ruchi Agarwal

Vs. Amit Kumar Agrawal and Ors

Decided on: 05.11.20042

Facts- By the impugned order, the High Court of Uttaranchal quashed a criminal complaint filed by the appellant against the respondents. The complaint was made by the appellant alleging offences under sections 498A, 323 and 506 IPC, and Sections 3 and 4 of the Dowry Prohibition Act. The High Court by the impugned judgment came to the conclusion that the alleged offences having taken place within the jurisdiction of Ram Nagar Police Station of Bilaspur district, the court at Rampur district did not have the territorial jurisdiction to entertain a complaint, hence, while quashing the charge sheet and the summoning order of the Chief Judicial Magistrate, Nainital, transferred the investigation of the case to Police Station Bilaspur, district Rampur. The Court held that-It is on the basis of the submission made on behalf of the appellant and on the basis of the terms of the compromise, said case came to be dismissed. However, so far as the complaint under Sections 498A, 323 and 506 IPC and under Sections 3and 4 of the Dowry Prohibition Act is concerned, which is the subject matter of this appeal, the appellant did not take any steps to withdraw the same. It is in those circumstances, a quashing petition was filed before the High Court which came to be partially allowed on the ground of the territorial jurisdiction, and against the said order the appellant has preferred this appeal. It is based on the said compromise the appellant obtained a divorce as desired by her under Section 13(b) of the Hindu Marriage Act and in partial compliance of the terms of the compromise she withdrew the criminal case filed under Section 125 of the Criminal Procedure Code but for reasons better known to her she did not withdraw that complaint from which this appeal arises. That apart after the order of the High Court quashing the said complaint on the ground of territorial jurisdiction, she has chosen to file this appeal. It is in this background, we will have to appreciate the merits of this appeal.

2. (2005) 3 SCC 299.


3 Paulmeli and Anr.

Vs. State of Tamil Nadu tr. Insp. of Police

Decided on: 23.05.20143

This appeal was been preferred against the impugned judgment and order dated 6.10.2009, passed by the High Court of Tamil Nadu (Madurai Bench) in Criminal Appeal (MD) No. 540 of 2008 affirming the judgment and order dated 18.11.2008, passed in Sessions Case No. 18 of 2001 by the Addl. District & Sessions Judge (Fast Track Court), Ramanathapuram by which and whereunder the Appellants had been convicted Under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as ‘Indian Penal Code’) and awarded life imprisonment and a fine of Rs. 2,000/- each, and in default to undergo further RI for six months Facts- That about 20 years ago, one Vellaimmal (PW. 17, blind and deaf), daughter of Paulmeli Thevar, got married to one Arumugam and a daughter was born out of the said wedlock. The said Arumugam deserted his wife Vellaimmal and married another lady which resulted in enmity between the two families. Arumugam assaulted Vellaimmal and her family. As a consequence, Ramasamy, the uncle of Vellaimmal, with whom she had started living after being deserted by her husband allegedly murdered Arumugam, Ramu Thevar and Laxmana Thevar in the year 1981. B. After a gap of about 20 years of the said incident happened in the year 1981, it was alleged that on 30.7.1999, 17 persons including the two Appellants unlawfully assembled together with a common object to murder Ramasamy and they came at his house at about 9 P.M. when he was sleeping on a cot outside his house. The accused encircled him and caused indiscriminate cuts over his body using an Arrival which caused instantaneous death. In order to save Ramasamy, his two sons, namely Paulmeli and Vijayasamy intervened and they also got injuries. After committing the offence, accused persons ran away. The court held that- In Sucha Singh v. State of Punjab : AIR 2003 SC 3617, this Court had taken note of its various earlier judgments and held that even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, it is the duty of the court to separate grain from chaff. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno falsus

3. 2014 CriLJ 3240.


in omnibus (false in one thing, false in everything) has no application in India and the witness cannot be branded as a liar. In case this maxim is applied in all the cases it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, truth is the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of credence, and merely because in some respects the court considers the same to be insufficient or unworthy of reliance, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well.

4 Rasiklal Dalpatram Thakkar

Vs. State of Gujarat and Ors. Decided on: 06.11.20094

Facts- The Madhavpura Mercantile Cooperative Bank Ltd., which is governed by the provisions of the Multi State Cooperative Societies Act, 2002, has its Registered as well as Head Office at Madhavpura Market, Shastribaug, Ahmedabad, and carries on banking operations in the State of Gujarat, Maharashtra among other States in India. According to the Bank, all its activities relating to disbursement of loans are conducted from the Head Office at Ahmedabad. In 1992, the appellant’s company took loan from the aforesaid Bank which for the reasons prevailing closed down its business operations in 2001. Thereafter, a Scheme of Reconstruction approved by the Reserve Bank of India was formulated and a new Board of Management (Administration) came to be appointed to implement the same. Several irregularities were discovered regarding the grant of loans to borrowers with the connivance of the then Chief Executive Officer, Managing Director and Chairman of the Bank. Several complaints came to be registered against the said officers and several borrowers. Five such complaints were filed against the appellant on 9th July, 2003, before the Chief Metropolitan Magistrate, Ahmedabad, who directed the Economic Offences Wing, State C.I.D. (Crime), Ahmedabad, under Section 156(3) Cr.P.C. to carry out an investigation. The Investigating Agency submitted a report stating that the allegations complained of had been committed within the territorial limits of the city of Mumbai, Maharashtra, and that the investigation should, therefore, be transferred to the Investigation Agency in Mumbai, Maharashtra.

4. AIR 2010 SC 715.


The court held that- Before the High Court it was reiterated that the loan had been availed of by the appellant’s company from the Mandvi Branch of the Bank in Mumbai which had an independent identity as a registered co-operative Society under the Maharashtra Co-operative Societies Act. It was also reiterated that the loan amount had been disbursed from the said Branch in Mumbai. It was contended that since the cause of action for the alleged offence had arisen outside the territorial jurisdiction of the Chief Judicial Magistrate, Ahmedabad, he could not direct the Investigating Agency under his jurisdiction to conduct an investigation into the complaint made against the appellant in respect of such cause of action. Accepting the views expressed by the Chief Metropolitan Magistrate that the Investigating Agency was only required to state the outcome of the investigation pursuant to an order under Section 156(3) Cr.P.C. and that it had no authority to state which Court had jurisdiction to inquire into the alleged offence, the High Court by its impugned judgment dated 15.3.2007 dismissed the writ petition filed by the appellant, inter alia, on the following grounds: (i) That the Investigating Agency had travelled beyond its jurisdiction in

expressing its views regarding the territorial jurisdiction in regard to a criminal offence which was for the Courts to decide.

(ii) That the Station House Officer is vested with the authority to investigate any cognizable offence in respect of which an F.I.R. is lodged.

(iii) The powers reserved to the High Court under Section 482 Cr.P.C. could not be interfered with or curtailed on the ground that the Investigating Officer had no territorial jurisdiction over the investigation.

Alleging that the power of the Magistrate under Sub-section (3) was circumscribed by the powers vested in the Investigating Agency under Sub-section (2) of Section 156 Cr.P.C, and that it was only the Investigating Agency which could decide the question relating to the territorial jurisdiction in respect of the crime committed, learned Counsel submitted that the High Court had erred in upholding the views expressed by the learned Chief Metropolitan Magistrate that the Investigating Agency was only required to state the outcome of the investigation conducted pursuant to an order under Section 156(3) Cr.P.C. and that it had no authority or right to state as to which Court had jurisdiction to inquire into the alleged offence in question. Learned Counsel then relied on the decision of this Court in Satvinder Kaur v. State (NCT of Delhi) : (1999) 8 SCC 728 in support of his submission that in view of the provisions of Section 156(1) Cr.P.C. a police officer was competent to investigate any cognizable offence and was also competent to


forward the same to the police station having territorial jurisdiction if he came to the conclusion that the crime had been committed beyond his territorial jurisdiction Learned Counsel urged that once the Investigating Agency in respect of an order under Section 156(3) Cr.P.C. came to a finding that it did not have territorial jurisdiction in the matter, the High Court could not have directed a fresh investigation into the matter on the ground that it was not for the Investigating Agency to decide the question of jurisdiction which is the prerogative of the Courts. On the legal question raised on behalf of the appellant, Mr. Rao submitted that Section 156 Cr.P.C. only spelt out the powers of a police officer to investigate a cognizable case and the power of a Magistrate to order such an investigation to be made. In addition, it was also stipulated that no investigation by a police officer at any stage of such investigation could be questioned on the ground that such officer was not empowered to conduct such investigation. Mr. Rao submitted that the decisions cited by Mr. Syed did not really make any difference to the appellant’s case as the power of the Investigating Officer to transfer an investigation, which he did not have the jurisdiction to investigate, to a police officer having such jurisdiction, was never at issue in the instant case. What was at issue was the Investigating Officer’s decision not to conduct an investigation despite an order passed by the Chief Judicial Magistrate, Ahmedabad, under Section 156(3) Cr.P.C. on the ground that he did not have territorial jurisdiction to undertake such investigation. The principal question which emerges from the submissions made on behalf of the parties is whether in regard to an order passed under Section 156(3) Cr.P.C. the police authorities empowered under Sub-section (1) of Section 156 can unilaterally decide not to conduct an investigation on the ground that they had no territorial jurisdiction to do so. In our view, both the trial Court as well as the Bombay High Court had correctly interpreted the provisions of Section 156 Cr.P.C. to hold that it was not within the jurisdiction of the Investigating Agency to refrain itself from holding a proper and complete investigation merely upon arriving at a conclusion that the offences had been committed beyond its territorial jurisdiction. The answer, in our view, is in the negative and we are of the firm view that the powers vested in the Investigating Authorities, under Section 156(1) Cr.P.C., did not restrict the jurisdiction of the Investigating Agency to investigate into a complaint even if it did not have territorial jurisdiction to do so.


5 Balram Singh and Anr.

Vs. State of Punjab

Decided on: 07.05.20035

Facts- That in view of some previous enmity arising out of the fact that Prem Singh A-5 had called the sons of deceased Kirpal Singh as ‘Bhangi’ and drunkards, there was some altercation a few days earlier between the two groups belonging to A-1 and the deceased Kirpal Singh. It is pursuant to the abovesaid incident, on 5.5.1990 at about 8.30 p.m. when deceased Kirpal Singh and his daughter Smt. Raj Karni PW-1 were coming towards their house from their cattle shed in front of the house of Nachhater Singh (A-1), A-1 intercepted the deceased armed with an axe along with Balram Singh A-2 was holding a Takua, Khushal Singh A-3 armed with a Kirpan, Parhlad Singh A-4 armed with a dang, Prem Singh A-5 and Sukhdev Singh A-6 who were unarmed. It is the prosecution case that all these persons attacked the deceased and PW-1 during which attack A-1 gave a Kulhari blow on the head of deceased Kirpal Singh, consequent to which the deceased fell down still A-1 continued to inflict more blows on the fallen body of the deceased. At that time, when PW-1 raised an alarm hearing which Kashmir Singh PW-2 came to the spot and he was also attacked by A-2 with a Taqua and A-3 also gave blows with Kirpan on the back and abdomen of PW-2. The further blows given by A-2 fell on the left arm, right leg and left heel of PW-2. At that time, A-1 gave blows to PW-1 on left arm and left hand. Thereafter PW-2 was dragged into the house of A-1 by accused persons. The court held that- It has come in the prosecution evidence that the distance between the place of the incident and the hospital is about 17 kms. The Police at Gurdaspur Police Station who received the intimation, having come to know that the incident in question had taken place within the territorial jurisdiction of Sadar Police Station Pathankot sent intimation to the said Pathankot Police Station and Ram Dass. ASI of the Pathankot Police Station travelled to the hospital in Gurdaspur which is about 40 kms. away from the Pathankot Police Station and reached the hospital at about 9.15 a.m. on 6.5.1990 and he then recorded the statements of injured witnesses and registered an FIR and after investigation filed the charge sheet as against the named accused and the trial court as stated above in the course of trial included three more persons in the array of accused.

5. AIR 2003 SC 2213.


6 Shiv Shankar Singh

Vs. State of Bihar and Anr. Decided on: 22.11.20116

Facts- A. A dacoity was committed in the house of present Appellant Shivshankar Singh and his brother Kameshwar Singh on 6.12.2004 Where in Gopal Singh son of Kameshwar Singh was killed by the dacoits and lots of valuable properties were looted. The police reached the place of occurrence at about 3.00 AM i.e. about 2 hours after the occurrence. An FIR No. 147/2004 dated 6.12.2004 was lodged by the Appellant naming Ramakant Singh and An and Kumar Singh alongwith 15 other persons under Sections 396/398Indian Penal Code. B. However, Kameshwar Singh, the real brother of the Appellant and father of Gopal Singh, the deceased, approached the court by filing a case under Section 156(3) of the Code of Criminal Procedure, 1973, (hereinafter called `Code of Criminal Procedure.?). Appropriate orders were passed therein and in pursuance of which FIR No. 151/2004 was lodged on 29.12.2004 in respect of the same incident with the allegations that the present Appellant, Bhola Singh, son of the second complainant and Shankar Thakur, the maternal uncle of Bhola Singh had killed Gopal Singh as the accused wanted to grab the immovable property. The court held that-Undoubtedly, the High Court has placed a very heavy reliance on the judgment of the Calcutta High Court in Joy Krishna Chakraborty and Ors. (supra), wherein the Protest Petition dated 19.3.1976 was entertained by the Magistrate issuing direction to the Officer-in-Charge of the Khanakul Police Station under Section 156(3) Code of Criminal Procedure. to make the investigation and submit the report to the court concerned by 10.4.1976. The Officer-in-Charge of the said police station did not carry out any investigation on the ground that the incident had occurred outside the territorial jurisdiction of the said police station. The second Protest Petition filed by the same complainant on 23.3.1976 was entertained by the learned Magistrate. In fact, it was in this factual backdrop that the Calcutta High Court held that the matter could have been proceeded with on the basis of the first Protest Petition itself by the Magistrate and second Protest Petition could not have been entertained.

6. 2012 (1) ACR 1173 (SC).


7 Naresh Kavarchand Khatri

Vs. State of Gujarat and Anr.

Decided on: 08.05.20087

• Whether the High Court has the requisite jurisdiction to transfer an investigation from one Police Station to another is the core question involved in these two appeals which arise out of judgment and order dated 28.12.2006 in Special Criminal Appeal Nos. 2272 and 2271 of 2006.

Facts- Appellant lodged a First Information Report before the detective Crime Branch, Police Station, Vadodara City under Sections 406, 420 and 120B of the Indian Penal Code against the respondents. According to the appellants, the respondent had assured that the child of the first informants would be admitted in their institution and on that pretext, collected a huge amount from them. The children of the first informant took admission after depositing the admission fee and miscellaneous charges etc. However, their admission was later on cancelled. The court held that- The power of the court to interfere with an investigation is limited. The police authorities, in terms of Section 156 of the Code of Criminal Procedure, exercise a statutory power. The Code of Criminal procedure has conferred power on the statutory authorities to direct transfer of an investigation from one Police Station to another in the event it is found that they do not have any jurisdiction in the matter. The Court should not interfere in the matter at an initial stage in regard thereto. If it is found that the investigation has been conducted by an Investigating Officer who did not have any territorial jurisdiction in the matter, the same should be transferred by him to the police station having the requisite jurisdiction. In Satvinder Kaur v. State (Govt. of NCT of Delhi) : AIR1999SC3596 this Court noticing various provisions of the Code of Criminal Procedure opined: 12. A reading of the aforesaid sections would make it clear that Section 177 provides for “ordinary” place of enquiry or trial. Section 178, inter alia, provides for place of enquiry or trial when it is uncertain in which of several local areas an offence was committed or where the offence was committed partly in one local area and partly in another and where it consisted of several acts done in different local areas, it could be enquired into or tried by a court

7. AIR 2008 SC 2180.


having jurisdiction over any of such local areas. Hence, at the stage of investigation, it cannot be held that the SHO does not have territorial jurisdiction to investigate the crime. Hence, in the present case, the High Court committed a grave error in accepting the contention of the respondent that the investigating officer had no jurisdiction to investigate the matters on the alleged ground that no part of the offence was committed within the territorial jurisdiction of the police station at Delhi. The appreciation of the evidence is the function of the courts when seized of the matter. At the stage of investigation, the material collected by an investigating officer cannot be judicially scrutinized for arriving at a conclusion that the police station officer of a particular police station would not have territorial jurisdiction. In any case, it has to be stated that in view of Section 178(c) of the Criminal Procedure Code, when it is uncertain in which of the several local areas an offence was committed, or where it consists of several acts done in different local areas, the said offence can be enquired into or tried by a court having jurisdiction over any of such local areas. The impugned order has been passed on 28th December, 2008. The first information report prima facie shows that a part of cause of jurisdiction arose within the territorial jurisdiction of Vadodara Police Station. We fail to understand as to how at such an early stage, the investigation should have been directed to be transferred, having regard to the fact that Waghodia Police Station where the `institution’ in question is situated is within the jurisdiction of Vadodara (District) and is, therefore, not a case where the accused would have been even otherwise gravely prejudiced in joining investigation. 11. We, therefore, are of the opinion that it is not a case where we should refuse to exercise jurisdiction under Article 136 of the Constitution of India. We, therefore, set aside the impugned orders. Consequently, the charge sheets filed by the Wagodhia Police Station stand set aside. The concerned Police Officer of Vadodara Police Station would initiate appropriate investigation in the matter in accordance with law.

Chapter 2

REGISTRATION OF FIR

An information given under sub-section (1) of section 154 CrPC is commonly known as first information report (FIR) though this term is not used in the Criminal Procedure Code (in short CrPC). It is the earliest and the first information of a cognizable offence recorded by an officer-in-charge of a police station. It sets the criminal law in motion and marks the commencement of the investigation which ends up with the formation of opinion under section 169 or 170 CrPC, as the case may be, and forwarding of a police report under section 173 CrPC. It is quite possible and it happens not infrequently that more information than one are given to a police officer-in-charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house diary and this is implied in section 154 CrPC. Apart from a vague information by a phone call, the information first entered in the station house diary, kept for this purpose, by a police officer-in-charge of a police station is the first information report- FIR postulated by section 154 CrPC. All other information made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under section 162 CrPC. No such information/statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of CrPC Purpose and Object of FIR The purpose of registration of FIR is manifold that is to say (1) To reduce the substance of information disclosing commission of a cognizable offence, if given orally, into writing. (2) If given in writing to have it signed by the complainant.

Pre-Trial Process and Policing 17

(3) To maintain record of receipt of information as regards commission of cognizable offences. (4) To initiate investigation on receipt of information as regards commission of cognizable offence. (5) To inform Magistrate forthwith of the factum of the information received. Evidentiary Value of FIR. FIR is not a piece of substantive evidence. It can be used only for limited purposes, like corroborating under section 157 of the Evidence Act or contradicting (cross-examination under section 145 of Evidence Act) the maker thereof, or to show that the implication of the accused was not an after-thought. It can also be used under section 8 and section 11 of the Evidence Act. Obviously, the FIR cannot be used for the purposes of corroborating or contradicting or discrediting any witness other than the one lodging the FIR. It cannot be used for corroborating the statement of a third party. If the FIR is of a confessional nature it cannot be proved against the accused-informant, because according to section 25 of the Evidence Act, no confession made to a police officer can be proved as against a person accused of any offence. But it might become relevant under section 8 of the Evidence Act. What you will do when police officer refuse to register FIR When a police officer-in-charge of a police station or any other police officer, acting under the directions of the officer-in-charge of police station refuses to register information, any person aggrieved by such refusal may send in writing and by post, the substance of such information disclosing a cognizable offence, to the Superintendent of Police under section 154(3) or to the Magistrate concerned under section 156(3) of the CrPC.

Punishment for giving false information.

Punishment for giving false information to the police is dealt with by sections 182, 203 & 211 of IPC. Even if such information is not reduced to writing under Section 154(1) of CrPC, the person giving the false information may nevertheless be punished for preferring a false charge under section 211 of IPC. A police officer refusing to enter in the diary a report made to him about the commission of an offence, and instead making an entry totally different from the information given, would be guilty under Sections 166A and 177 of IPC.

18 Registration of Fir

1 Lalita Kumari

Vs. Govt. of U.P. and Ors.

Decided On: 12.11.20131

FACTS- The important issue which arises for consideration in the referred matter is whether “a police officer is bound to register a First Information Report (FIR) upon receiving any information relating to commission of a cognizable offence under Section 154 of the Code of Criminal Procedure, 1973 (in short ‘the Code’) or the police officer has the power to conduct a “preliminary inquiry” in order to test the veracity of such information before registering the same?” The present writ petition, under Article 32 of the Constitution, has been filed by one Lalita Kumari (minor) through her father, viz., Shri Bhola Kamat for the issuance of a writ of Habeas Corpus or direction(s) of like nature against the Respondents herein for the protection of his minor daughter who has been kidnapped. The grievance in the said writ petition is that on 11.05.2008, a written report was submitted by the Petitioner before the officer in-charge of the police station concerned who did not take any action on the same. Thereafter, when the Superintendent of Police was moved, an FIR was registered. According to the Petitioner, even thereafter, steps were not taken either for apprehending the accused or for the recovery of the minor girl child. A two-Judge Bench of this Court in, Lalita Kumari v. Government of Uttar Pradesh and Ors.(2008) 7 SCC 164, after noticing the disparity in registration of FIRs by police officers on case to case basis across the country, issued notice to the Union of India, the Chief Secretaries of all the States and Union Territories and Director Generals of Police/Commissioners of Police to the effect that if steps are not taken for registration of FIRs immediately and the copies thereof are not handed over to the complainants, they may move the Magistrates concerned by filing complaint petitions for appropriate direction(s) to the police to register the case immediately and for apprehending the accused persons, failing which, contempt proceedings must be initiated against such delinquent police officers if no sufficient cause is shown. THE COURT HELD THAT- An investigation, culminating into a Final Report under Section 173 of the Code, cannot be called into question and

1. AIR 2014 SC187


be quashed due to the reason that a part of the inquiry, investigation or steps taken during investigation are conducted after receiving the first information but prior to registering the same unless it is found that the said investigation is unfair, illegal, mala fide and has resulted in grave prejudice to the right of the accused to fair investigation. In support of the above contentions, she traced the earlier provisions of the Code and current statutory framework, viz., Criminal Law (Amendment) Act, 2013 with reference to various decisions of this Court. She concluded that Section 154 of the Code leaves no area of doubt that where a cognizable offence is disclosed, there is no discretion on the part of the police to record or not to record the said information, however, it may differ from case to case. It is thus clear that registration of FIR is to be done in a book called FIR book or FIR Register. of course, in addition, the gist of the FIR or the substance of the FIR may also be mentioned simultaneously in the General Diary as mandated in the respective Police Act or Rules, as the case may be, under the relevant State provisions. 55. The General Diary is a record of all important transactions/events taking place in a police station, including departure and arrival of police staff, handing over or taking over of charge, arrest of a person, details of law and order duties, visit of senior officers etc. It is in this context that gist or substance of each FIR being registered in the police station is also mentioned in the General Diary since registration of FIR also happens to be a very important event in the police station. Since General Diary is a record that is maintained chronologically on day-today basis (on each day, starting with new number 1), the General Diary entry reference is also mentioned simultaneously in the FIR Book, while FIR number is mentioned in the General Diary entry since both of these are prepared simultaneously. It is relevant to point out that FIR Book is maintained with its number given on an annual basis. This means that each FIR has a unique annual number given to it. This is on similar lines as the Case Numbers given in courts. Due to this reason, it is possible to keep a strict control and track over the registration of FIRs by the supervisory police officers and by the courts, wherever necessary. Copy of each FIR is sent to the superior officers and to the concerned Judicial Magistrate .


2 Himmat Sukhadeo Wahurwagh and Ors.

Vs. State of Maharashtra

Decided On: 01.05.20092

Facts- This appeal is directed against the judgment of the Bombay High Court dated 24th April 2007 whereby the State appeal against acquittal against the judgment of the Additional Sessions Judge, Akola has been allowed and the accused convicted and sentenced for offences punishable under Section 302/149 of the IPC etc. The facts are as under: At about 4 p.m. on 11th June 1989 Babarao Kolhe, his brother Jaidev Kolhe and grandson Sanjay PW-1 residents of village Panaj, went to plough their fields, about one-and-a half kilometers away from the village. As they were returning home in their bullock cart, they were waylaid by the eight accused, variously armed with axes and sticks who attacked Babarao and Jaidev. Sanjay escaped from the spot and reached home and informed his grandfather Namdeo Kolhe about what had happened, giving details of the injuries caused by each of the accused. In the meantime, the bullock cart sans Babarao and Jaidev too returned to the residence in the village. Namdeo Kolhe thereupon called his sons Dadarao and Wasudeo and alongwith several other persons went in search and found Babarao and Jaidev lying seriously injured in the field of one Vishwanath Akotkar. It is the case of the prosecution that Jaidev made a dying declaration to Dadarao that the eight accused had beaten him and Babarao. The two injured were thereafter taken homeward and as the party entered the village. Namdeo and the others received information that the accused were searching for them as well so that they too could be killed. Dadarao and Wasudeo thereupon left the cart and returned home by a circuitous route. Namdeo then left for the house of the Police Patil accompanied by his grandson Bhimrao PW 4 and Deokabai PW 5 but he too was assaulted along the way by the accused. Bhimrao rushed back home and narrated the incident to his mother Shantabai and to his father. The accused al so threatened Deokabai that they would kill her as well on which she made a hasty retreat to her home. The court held that- Before we embark on an appreciation of the evidence some thoughts come to mind. The criminal justice system as we understand it as of today in our country, is beset with major issues, sometimes unrelated to what happens in court, particularly in cases involving more than one accused.

2. AIR 2009 SC 2292


Fudged and dishonest first information reports, tardy and misdirected investigations and witnesses committing perjury with not the slightest qualm or a quibble make the decision of even the most diligent and focused of judges particularly galling and difficult. Several other factors inhibit the proper conduct of proceedings in a trial. As per “Crimes in India - 1998” a total of 5,42,345 cases under the Indian Penal Code including those carried over from the previous years, and another 6,37,345 criminal cases under Special and Local Laws making a backlog of 11,79,690 cases were pending investigation. It has also been found that the delay in the investigation and disposal of a criminal case makes the possibility of acquittal that much higher as witnesses tend to turn hostile. The Fourth Report of the National Police Commission (1980) Chapter XXVIII gives some alarming statistics inasmuch that a sample study of Sessions cases in a crime infested district revealed that out of 320 cases disposed off in the concerned Sessions court during the 8 months working period in a year, only 29 ended in conviction while 291 ended in acquittal. In conclusion, the Commission observed: As many as 130 cases, which included 21 murders, 58 attempts at murder, 17 decoities and 9 robberies, took more than 3 years for disposal, reckoning the time from the date of registration of First Information Report. It was also noticed that the longer a case took for disposal the more were the chances of its acquittal. Protracted proceedings in courts followed by acquittal in such heinous crimes tend to generate a feeling of confidence among the hardened criminals that they can continue to commit crimes with impunity and ultimately get away with it all at the end of leisurely and long drawn legal battles in courts which they can allow their defence counsel to take care of. Such a situation is hardly assuring to the law abiding citizens and needs to be immediately corrected by appropriate measures even if they should appear drastic and radical.

3 Upkar Singh

Vs. Ved Prakash and Ors

Decided On: 10.09.20043

Facts- In regard to an incident which took place on 20th of May. 1995 at about 10.00 AM, a complaint was lodged by the 1st respondent herein with the Sikhera Police Station in the village Fahimpur Kalan. In the said complaint appellant herein and some others persons were arrayed as accused. On the

3. AIR 2004 SC 4320


basis of the said complaint the police registered a Crime under Sections 452 and 307 IPC against the appellant and other named persons therein in Crime No. 48 of 1995 of that Police Station. Appellant alleges that he too lodged a complaint in regard to the very same offence against the respondents herein for having committed offences punishable under Sections 506 and 307 IPC as against him and his family members but since the said complaint was not entertained by the police concerned, he tried to approach the Superintendent of Police and District Magistrate and having tailed in his attempts to get his complaint registered he filed petition under Section 156(3) of the Criminal Procedure Code before the Judicial Magistrate, Muzaffarnagar. The Court Held That- In the instant case, it is seen in regard to the incident which took place on 20th May, 1995, the appellant and the 1st respondent herein have lodged separate complaints giving different versions but while the complaint of respondent was registered by the concerned police, the complaint of the appellant was not so registered, hence on his prayer the learned Magistrate was justified in directing the police concerned to register a case and investigate the same and report back. In our opinion, both the learned Additional Sessions Judge and the High Court erred in coming to the conclusion that the same is hit by Section 161 or 162 of the Code which, in our considered opinion, has absolutely no bearing on the question involved. Section 161 or 162 of the Code does not refer to registration of a case, it only speaks of a statement to he recorded by the police in the course of the investigation and its evidentiary value.

4 State of N.C.T. of Delhi

Vs. Ajay Kumar Tyagi

Decided On: 31.08.20124

Facts-Ajay Kumar Tyagi, at the relevant time, was working as a Junior Engineer with the Delhi Jal Board. Surinder Singh, a Constable with the Delhi Police applied to the Delhi Jal Board, hereinafter referred to as ‘the Board’, for water connection in the name of his wife Sheela Devi. The application for grant of water connection was cleared by the Assistant Engineer and the file was sent to said Ajay Kumar Tyagi (hereinafter referred to as ‘the accused’).

4. 2012 (3) ACR 3466


2. Constable Surinder Singh lodged a report with the Anti Corruption Branch alleging that the accused demanded bribe of Rs. 2000/- for clearing the file and a sum of Rs. 1000/- was to be paid initially and the balance amount after the clearance of file. On the basis of the information lodged, a trap was laid and, according to the prosecution, the accused demanded and accepted the bribe of Rs. 1000/-. This led to registration of the first information report under Section 7/13 of the Prevention of Corruption Act. The Court Held That- Therefore, in our opinion, the High court quashed the prosecution on total misreading of the judgment in the case of P.S. Rajya (Supra). In fact, there are precedents, to which we have referred to above speak eloquently a contrary view i.e. exoneration in departmental proceeding ipso facto would not lead to exoneration or acquittal in a criminal case. On principle also, this view commends us. It is well settled that the standard of proof in department proceeding is lower than that of criminal prosecution. It is equally well settled that the departmental proceeding or for that matter criminal cases have to be decided only on the basis of evidence adduced therein. Truthfulness of the evidence in the criminal case can be judged only after the evidence is adduced therein and the criminal case can not be rejected on the basis of the evidence in the departmental proceeding or the report of the Inquiry Officer based on those evidence. We are, therefore, of the opinion that the exoneration in the departmental proceeding ipso facto would not result into the quashing of the criminal prosecution. We hasten to add, however, that if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed. But that principle will not apply in the case of the departmental proceeding as the criminal trial and the departmental proceeding are held by two different entities. Further they are not in the same hierarchy.

5 Kailash Gour and Ors.

Vs. State of Assam

Decided On: 15.12.20115

Facts- This appeal arises out of a judgment and order dated 29th June, 2006, passed by the High Court of Judicature at Gauhati whereby Criminal Appeal No. 133 of 2005 filed by the Appellants has been dismissed and the 5. AIR 2012 SC 786


conviction and sentence of life imprisonment awarded to them by the trial Court for offences punishable under Sections 448, 324 and 302 read with Section 34 Indian Penal Code upheld. The appeal was initially heard by a Division Bench of this Court comprising S.B. Sinha and H.S. Bedi, JJ., who differed in their conclusions. While S.B. Sinha, J. acquitted the Appellants giving them the benefit of doubt, Bedi, J. upheld their conviction and sentence and consequently dismissed the appeal. The appeal has, in that backdrop, been listed before us to resolve the conflict. Briefly stated, the prosecution case is that at about 10.00 p.m. on December 14, 1992, Mohd. Taheruddin (PW2) a resident of village, Changmazi Pathar situate within the limits of Police Station Doboka, District Nagaon in the State of Assam was guarding his paddy crop in his field close to his house. Md. Mustafa Ahmed (PW3), one of the two sons of Mohd. Taheruddin was sleeping at home in one of the rooms while Md. Hanif Ahmed (PW4) was together with one Zakir, said to be a close relative, was sleeping in the kitchen. Sahera Khatoon wife of Mohd. Taheruddin and his daughters This appeal arises out of a judgment and order dated 29th June, 2006, passed by the High Court of Judicature at Gauhati whereby Criminal Appeal No. 133 of 2005 filed by the Appellants has been dismissed and the conviction and sentence of life imprisonment awarded to them by the trial Court for offences punishable under Sections 448, 324 and 302 read with Section 34 Indian Penal Code upheld. The appeal was initially heard by a Division Bench of this Court comprising S.B. Sinha and H.S. Bedi, JJ., who differed in their conclusions. While S.B. Sinha, J. acquitted the Appellants giving them the benefit of doubt, Bedi, J. upheld their conviction and sentence and consequently dismissed the appeal. The appeal has, in that backdrop, been listed before us to resolve the conflict. Briefly stated, the prosecution case is that at about 10.00 p.m. on December 14, 1992, Mohd. Taheruddin (PW2) a resident of village, Changmazi Pathar situate within the limits of Police Station Doboka, District Nagaon in the State of Assam was guarding his paddy crop in his field close to his house. Md. Mustafa Ahmed (PW3), one of the two sons of Mohd. Taheruddin was sleeping at home in one of the rooms while Md. Hanif Ahmed was together with one Zakir, said to be a close relative, was sleeping in the kitchen. Sahera Khatoon wife of Mohd. Taheruddin and his daughters Court held that That being the state of evidence adduced in the case, the question is whether the deposition of Md. Hanif, the solitary eye witness, is reliable, having regard to the attendant circumstances. The prosecution witnesses except the two doctors examined at the trial have all deposed that the communal atmosphere in the area was surcharged as an aftermath of the


demolition of the mosque, an event that took place just about a week before the occurrence in this case. Those affected by the disturbances were shifted to camps established by the administration. Deployment of a large police force in the area to which the Investigation Officer has referred in his deposition also was clear indicator of the atmosphere being surcharged and tense. That a house was set afire in the neighbourhood of the place of occurrence is also amply proved by the evidence on record. As a matter of fact, the police arrived on the spot within minutes of the commission of the gruesome murders not because any report was made to it about the said crime but because it had received information about a house having been set on fire. Once on the spot the police and the Army realised that there was much more at their hands than just an incident of fire. A mob comprising 35- 40 people had intruded in the homestead of Taheruddin and committed cold blooded murder of three innocent persons, two of whom were female children of tender age. If the prosecution version were to be believed, the Investigating Officer had the opportunity of getting an eye witness and first hand account of the incident within minutes of the commission of the crime. In the ordinary course, the Investigating Officer would have immediately recorded the First Information Report based on the eye witness account of the occurrence given by Md. Hanif and started his investigation in the right earnest. That is not, however, what happened. No effort was made by the Investigating Officer nor is there any explanation for his failure to ascertain from the alleged eye witness the sequence of events and the names and particulars of those who were responsible for the same. Instead, without the registration of the First Information Report, the Investigating Officer completes the inquest, prepares a site plan and gets the post mortem of the dead conducted on 15th December, 1992, long before the First Information Report was registered at 11.00 p.m. late in the evening on that date. There can be only two explanations for this kind of a situation. One could be, that the Investigating Officer was so stupid, ill-trained, ignorant of the law and procedure that he did not realise the importance of getting a crime registered in the police station concerned before undertaking any investigation including conduct of an inquest, post mortem etc. The other explanation could be that since neither the Investigating Officer had any clue as to who the perpetrators of the crime were nor did the witnesses now shown as witnesses of the occurrence had any idea, the investigations started without any First Information Report being recorded till late at night on 15th December, 1992. We are inclined to believe that the second explanation is more probable of the two. We say so for reasons that may be summarised as under: The Investigating Officer having prepared a site plan of the place of occurrence before the registration of the case and even before the


statements of the witnesses were recorded under Section 161 Code of Criminal Procedure., did not make any mention about the banana trees behind which Md. Hanif (PW4) is said to have hidden himself. If the story regarding PW4 having had observed the occurrence from behind the banana trees was correct, the trees ought to appear in the site plan which is not the case. Absence of any banana trees in the area around the house is an indication of the fact that no implicit reliance can be placed upon the version of Md. Hanif (PW4). According to PW3 and PW4, after they emerged from their hideouts and after their father returned to the spot they started looking for the dead bodies with the help of a torch. If PW4 was right in his version, then the victims were hacked in front of the door of the house, there was no question of searching for the dead bodies with the help of torch light. The use of torch light to look for bodies shows that there was no source of light. The night was a foggy, cold December night. The presence of fog is admitted by PW4 in his deposition. Assuming that there was moonlight, the presence of fog was a disabling factor that made visibility poor for any one to observe the occurrence from a distance when a huge mob of 30-40 people was on the rampage. : 2011(2)ALD(Cri)635,According to Shri B.N. Kalita (PW7) the Investigating Officer in the case a written ejahar was presented to him by Taheruddin when the former reached the spot on 14th December, 1992. If that were so, the least which the officer would have done was to take that ejahar as the first information report regarding the occurrence and register a case of murder against those named in it. This admittedly was not done. In cross- examination the witness said that a written ejahar was presented1992 at 12.10 p.m. Now, even if that were true, there is no explanation why the officer delayed registration of the FIR till 11.00 p.m. on that day. The delay in the lodging of the FIR and the circumstances in which the ejahar was written, cast a serious doubt about the whole prosecution case especially when there is no explanation whatsoever for the failure of the Investigating Officer to record the report based on the alleged eye witness account immediately after he reached the spot. It is one of the fundamental principles of criminal jurisprudence that an accused is presumed to be innocent till he is proved to be guilty. It is equally well settled that suspicion howsoever strong can never take the place of proof. There is indeed a long distance between accused ?may have committed the offence? and ?must have committed the offence? which must be traversed by the prosecution by adducing reliable and cogent evidence. Presumption of innocence has been recognised as a human right which cannot be wished away. See Narendra Singh and Anr. v. State of M.P. (2004) 10 SCC 699


and Ranjitsingh Brahmajeet singh Sharma v. State of Maharashtra and Ors. (2005) 5 SCC 294. We are conscious of the fact that three innocent persons including two young children have been done to death in the incident in question which needs to be deprecated in the strongest terms but unless proved to be the perpetrators of the crime beyond a reasonable doubt, the Appellants cannot be convicted and sentenced for the same. We accordingly allow this appeal and acquit the Appellants giving them the benefit of doubt. They shall be set free forthwith unless required in connection with any other case.

6 Appellants: Inspector of Police, Tamil Nadu

Vs. Respondent: John David Decided On: 20.04.20116

Facts Criminal - Acquittal - Circumstantial Evidence - Sections 201, 302, 342 and 364 of the Indian Penal Code, 1860 (IPC) - High Court acquitted Respondent for offence charged under Sections 302, 364, 201 and 342 of the IPC by reversing judgment and order of Trial Court - Hence this Appeal - Whether prosecution established chain of circumstances - Held, all witnesses were independent and respectable eyewitnesses - They had not been shown to have any axe to grind against accused - Accused nurtured ill feeling against deceased as, deceased refused to write record note for accused - Deceased was last seen with accused and he was searching for him very eagerly - Recovery of crime objects on basis of information given by accused provides link in chain of circumstances Failure to explain one of the circumstances would not be fatal for prosecution case - Minor loopholes and irregularities in the investigation process cannot form crux of case when there were strong circumstantial evidences deduced from said investigation which logically and rationally point towards guilt of accused - Therefore, prosecution had established its case on basis of strong and cogent circumstantial evidence - Hence, there could not be any other possible or plausible view favoring accused - High Court erred in reversing order of conviction recorded by Trial Court - Court set aside impugned judgment of High Court and restored judgment and decision of Trial Court - Directed Respondent to surrender before jail authorities - Appeal allowed. Ratio Decidendi: Failure to explain one of circumstances would not be fatal for prosecution case. Minor loopholes and irregularities in investigation 6. 2011 (2) ALD (Cri) 635


process cannot form crux of case when there are strong circumstantial evidences deduced from said investigation which logically and rationally point towards guilt of accused. This appeal is directed against the judgment and order dated 05.10.2001 passed by the High Court of Madras whereby the High Court has allowed the appeal filed by the Respondent herein. The High Court acquitted the Respondent under Sections 302, 364, 201and 342 of the Indian Penal Code, 1860 (for short “IPC”) by reversing the judgment and order dated 11.03.1988 rendered by the Court of Principal Sessions Judge, Cuddalore in Sessions Case No. 63 of 1997. The facts of this case are very shocking and very distressing. Murder is committed of a young boy, the only son of his parents, who at the relevant time was studying for a medical degree. The manner in which he was killed and his dead body was disposed of after cutting it into different pieces was very gruesome and ghastly. The person in the dock and who was accused of the crime was another senior student in the same campus. Court held that Brief relevant facts leading to the registration of the first information report and giving rise to the present appeal are being set out hereunder. In the academic year of 1995-96 the Respondent-accused was studying in the senior first year course of MBBS and the deceased-Navarasu, son of Dr. P.K. Ponnusamy [PW-1], a retired Vice-Chancellor of Madras University, was studying in the junior first year course of MBBS in Raja Muthiah Medical College, Annamalai University, Annamalai Nagar. The Respondent was staying in room No. 319 of KRM hostel and the deceased was staying in room No. 95 in E.1 Malligai Hostel belonging to the same medical college campus. PW-1 returned from his foreign trip on 07.11.1996 and was waiting for the arrival of his son-Navarasu from college to celebrate Diwali which in that relevant year fell on 10.11.96. When Navarasu did not return home till 09.11.1996, PW-1 started enquiring from the friends of his son, available at Madras but no information of his whereabouts could be gathered by the father. PW-1 then on 09.11.1996 rang up the university authorities to find out and ascertain the whereabouts of his son. When he was informed that the college authority found his hostel room locked and when it was broken upon, it was found that his belongings along with a small box were lying in the room but he was not available in the room. The college authorities and the father were of the opinion that Navarasu had not left for Diwali to Madras. PW-1 thereafter rushed to the University on 10.11.96 and made a complaint of missing of his son at about 11.30 p.m. on 10.11.96 which was registered as Crime No. 509 of 1996 [Exhibit-P1].


On completion of investigation, the police submitted a charge sheet against the Respondent. On the basis of the aforesaid charge sheet, charges were framed against the accused- Respondent. The prosecution in order to establish the guilt of the accused examined several witnesses and exhibited a number of documents including scientific reports. Thereafter, the accused was examined under Section 313 Code of Criminal Procedure for the purpose of enabling him to explain the circumstances existing against him. After hearing arguments advanced by the parties, the Principal Sessions Judge, Cuddalore by its judgment dated 11.03.1998 convicted the accused. Principal Sessions Judge, Cuddalore found that there are enough circumstantial evidence and motive on the part of the accused for committing such a crime and held the accused/Respondent guilty under sections 302, 364, 201and 342 IPC and convicted and sentenced him to undergo imprisonment for life under Sections 302 and 364 IPC, rigorous imprisonment for one year under Section 342 IPC, and rigorous imprisonment for seven years and to pay a fine of rupees one lakh and in default to undergo rigorous imprisonment for twenty one months under Section 201 IPC. It was also ordered that the sentences would run consecutively. 8. Aggrieved by the aforesaid judgment and order of conviction passed by the trial Court, the Respondent herein preferred an appeal before the High Court. The High Court entertained the said appeal and heard the counsel appearing for the parties. On conclusion of the arguments, the High Court held that the prosecution has failed to prove the guilt of the accused and accordingly the High Court acquitted the Respondent of all the charges vide its judgment and order dated 05.10.2001 by reversing and setting aside the order of conviction passed against the Respondent under sections 302, 364, 201and 342 IPC. On the other hand, Mr. Sushil Kumar, learned senior counsel appearing on behalf of the Respondent-accused very painstakingly drew our attention to various aspects of the case, which according to him demolish the very substratum of the prosecution case. He also heavily relied upon the fact, by making submission, that there are no eye-witnesses and no direct evidence regarding commission of the crime by the Respondent. He submitted that there are no materials to show that the Respondent took the deceased to room No. 319 [room of the accused] and killed him there. He further submitted that as no blood was recovered from the room No. 319 and that the two roommates of the Respondent, viz., Raja Chidambaram [PW-37] & Shagir Thabris [PW-38] have not stated that they smelled any blood or saw any blood stains in the room, it definitely belies prosecution case that murder was committed in the said room of the hostel. Further submission was that P Ws 37 & 38 admitted that the three knives [i.e., MO Ss 9 to 11] were used for cutting fruits and that PW 37 further admitted that during the time of


interrogation police neither showed the articles seized from the room of accused nor asked him to identify the said articles. The counsel for the Respondent further submitted that there is no evidence to prove that the accused proceeded to Madras on 06.11.1996 at 9.00 p.m. from Chidambaram railway station, albeit he submitted that accused took train at Chidambaram on 06.11.1996 at 9.00 p.m. bound for Tiruchirapalli to go to his native place, Karur and returned from Karur on 8th morning. Counsel stated that accused took his briefcase [MO-13] along with him and that MO-14 belongs to Raja Chidambaram [PW-37] and after meeting his parents on 7.11.96, the accused returned to Chidambaram hostel on the morning of 8.11.96 and he was in the hostel from 9-11.11.96. On the night of 10.11.96 his mother and his cousin brother had arrived at Chidambaram and stayed in Saradha Ram Hotel and they left on 11.11.96 Noon. Counsel for the Respondent further submitted that the non-examination of the Vice- Chancellor and the Dean of the university though they have been cited in the charge sheet as witnesses is fatal to the prosecution case. Next submission was that the chain of events to prove the guilt of the accused has many loopholes in it. Learned senior counsel for the Respondent also submitted that the High Court has rightly acquitted the accused as circumstances alleged by the prosecution have not been proved. It was also his submission that this being an appeal against acquittal, it is to be ascertained very carefully whether the view taken by the High Court is a plausible or possible view and that if the order of acquittal is one of the possible view, the same deserves deference rather than interference by the appellate court. He also submitted that the trial court was wrong in holding the Respondent guilty for evidence adduced by the prosecution to prove that the deceased was last seen with the accused replete with inherent improbabilities and inconsistent.

7 Umesh Kumar

Vs. State of Andhra Pradesh Decided On: 06.09.20137

Facts these appeals have been preferred against the impugned judgment and order dated 11.4.2012 passed by the High Court of Andhra Pradesh at Hyderabad in Criminal Petition No. 12791 of 2011 by way of which the High Court has quashed the charge sheet in C.C. No. 555 of 2011 in respect of the offence Under Section 468 of Indian Penal Code, 1860 (hereinafter referred to

7. 2013 (4) J.L.J.R. 151


as ‘Indian Penal Code’). However, it has not quashed the charge sheet in respect of offences punishable Under Sections 471,, 120B and 201 Indian Penal Code. Hence, these cross appeals by both parties i.e. the accused and the State of Andhra Pradesh. On 24.8.2011, Shri Dinesh Reddy-Respondent No. 2 himself directed the registration of the First Information Report (in short ‘FIR’) and that an investigation be conducted by CID. As a consequence, the FIR was registered on 25.8.2011 and one Shri J. Ranjan Ratan Kumar, Dy. S.P. was appointed as the Investigating Officer. F. During the course of investigation, Shri T. Sunil Reddy was arrested on 26.8.2011. His statement was recorded on 27.8.2011 Under Section 161 of Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Code of Criminal Procedure’) wherein Umesh Kumar, Appellant was not named. G. The report submitted by Shri Malla Reddy was forwarded by Shri V. Dinesh Reddy-Respondent No. 2 to the State Government on 27.8.2011. Shri T. Sunil Reddy was remanded to judicial custody on 27.8.2011. It was during that judicial custody on 3.9.2011 that his statement was recorded a second time Under Section 161 Code of Criminal Procedure wherein he named Umesh Kumar, Appellant. On being enlarged on bail on 5.9.2011, Shri T. Sunil Reddy made an application on 7.9.2011 Under Section 306 Code of Criminal Procedure to become an approver. After completing the investigation, a charge sheet dated 14.11.2011 was filed naming Umesh Kumar, Appellant showing that offences punishable Under Sections 468, 471, 120B and 201 Indian Penal Code had been committed. J. Aggrieved, Umesh Kumar approached the High Court Under Section 482 Code of Criminal Procedure for quashing the said charge sheet. However, the High Court vide impugned judgment and order dated 11.4.2012 quashed the charge sheet only in part as referred to hereinabove. Court held that Shri R. Venkataramani, learned senior counsel appearing for the State has submitted that Umesh Kumar hatched a conspiracy and obtained the certified copies of the sale deeds which were in the name of different persons and filed a complaint in the fictitious name forging the signature of Shri M.A. Khan, M.P. Such a fact had been disclosed by his accomplice Shri T. Sunil Reddy and other persons like Shri Lokesh Kumar etc. Respondent No. 2 being the head of the police department has rightly issued the direction to lodge an FIR and investigate the matter. The High Court committed an error entertaining his petition Under Section 482 Code of Criminal Procedure without any ground. As it was at the pre-emptive stage the matter could have been examined by the competent court; issues raised by Umesh Kumar could have been examined at the time of framing of the charges; and he could have


filed an application for discharge. As charges can be altered at any stage during the trial, the High Court could not have quashed the charge sheet in respect of only Section 468 Indian Penal Code. Thus, the appeal filed by Umesh Kumar is liable to the dismissed and the appeal filed by the State deserves to be allowed. Shri U.U. Lalit, learned senior counsel appearing for Respondent No. 2 has submitted that by filing a complaint in the fictitious name and forging the signature of Shri M.A. Khan, M.P., the reputation of Respondent No. 2 was put at stake. Admittedly, the complaint was in a fictitious name and with a forged signature. A case had been registered in respect of the same with Delhi Police, however, it could not proceed further. The office of the CID was chosen by the Chief Secretary and an enquiry was entrusted to the said department. Therefore, there could be no malice or mala fides so far as Respondent No. 2 is concerned. More so, the name of Umesh Kumar, Appellant, was not disclosed till the Respondent No. 2 was appointed as D.G.P. His name could be unearthed at a subsequent stage. Shri M.A. Khan, M.P. contacted the said Respondent and asked for a preliminary enquiry. The said Respondent forwarded the said report. Therefore, there could be no malice against him whatsoever. In view of the above, the appeal of Umesh Kumar, Appellant is liable to be dismissed. The facts are not in dispute. The letter dated 22.4.2011 purported to have been written by Shri M.A. Khan, M.P., suggests that various properties had been purchased by Respondent No. 2 as benami and the copies of the sale deeds etc. filed along with the said letter fortify the same. The Government of India wrote a letter to the Chief Secretary, Govt. of A.P. on 5.5.2011 to conduct an enquiry in respect of alleged disproportionate assets made by the Respondent No. 2 by purchase of huge lands either by himself or in the name of his wife or through benamis. Shri M.A. Khan, M.P. vide letter dated 23.5.2011 pointed out to the Central Government that he had not signed the complaint and his signature had been forged. Umesh Kumar, Appellant had asked the State Government to conduct an enquiry in respect of the disproportionate assets of the Respondent No. 2. In view thereof, if any person has forged in a letter under the name of the Samithi and forged the signature of Shri M.A. Khan, M.P., the matter being of grave nature requires investigation and, in view of above, we cannot find fault with the action initiated against Umesh Kumar, Appellant. Once criminal law is put in motion and after investigation the charge sheet is filed, it requires scrutiny in the court of law. However, before the charges could be framed, Umesh Kumar, Appellant, approached the High Court Under Section 482 Code of Criminal Procedure for quashing of the charge sheet. The scope of Section 482Code of Criminal Procedure is well defined and inherent


powers could be exercised by the High Court to give effect to an order under the Code of Criminal Procedure; to prevent abuse of the process of court; and to otherwise secure the ends of justice. This extraordinary power is to be exercised ex debito justitiae. However, in exercise of such powers, it is not permissible for the High Court to appreciate the evidence as it can only evaluate material documents on record to the extent of its prima faciesatisfaction about the existence of sufficient ground for proceedings against the accused and the court cannot look into materials, the acceptability of which is essentially a matter for trial. Any document filed along with the petition labelled as evidence without being tested and proved, cannot be examined. Law does not prohibit entertaining the petition Under Section 482 Code of Criminal Procedure for quashing the charge sheet even before the charges are framed or before the application of discharge is filed or even during its pendency of such application before the court concerned. The High Court cannot reject the application merely on the ground that the accused can argue legal and factual issues at the time of the framing of the charge. However, the inherent power of the court should not be exercised to stifle the legitimate prosecution but can be exercised to save the accused to undergo the agony of a criminal trial. Scheme for inquiry/trial provided under the Code of Criminal Procedure is quite clear. After investigation, report Under Section 173(2) Code of Criminal Procedure is to be submitted before the competent court i.e. magistrate having jurisdiction in the matter and the magistrate may take cognizance Under Section 190 Code of Criminal Procedure However, it is still open to the magistrate to direct further investigation under the provisions of Section 173(8) Code of Criminal Procedure If the case is triable by the Court of Sessions, the magistrate would commit the case to the said court Under Section 209 Code of Criminal Procedure It is for the court to examine whether there is sufficient material collected during investigation and filed along with the charge sheet that a prima facie view can be taken to proceed against the accused and in view thereof, frame charges Under Section 228 Code of Criminal Procedure At this stage the remedy available to the accused is to ask for discharge Under Section 227 Code of Criminal Procedure In case charges are framed the accused has to face the trial, charges can be added/altered at any stage of the trial, before the pronouncement of the judgment to suit the evidence adduced before the court, under the provisions of Section 216 Code of Criminal Procedure The only legal requirement is that a witness has to be recalled as provided Under Section 217 Code of Criminal Procedure when a charge is altered or added by the court. 20. In the instant case, charge sheet had been filed and the cognizance had been taken by the magistrate concerned; the committal proceedings have not


yet taken place; and some of the offences attracted in this case are exclusively triable by the Sessions Court. Umesh Kumar, Appellant approached the High Court Under Section 482 Code of Criminal Procedure and the charge sheet has been partly quashed observing that the provisions of Section 468 Indian Penal Code are not attracted. Case of Umesh Kumar - Appellant would proceed before the Trial Court as explained hereinabove. A copy of the judgment and order be sent to the Director, CBI, forthwith. The CBI shall submit the Status Report to this Court within four months.

8 Shashikant

Vs. Central Bureau of Investigation and Ors.

Decided On: 07.11.20068

Facts- This appeal is directed against a judgment and order dated 12.09.2005 passed by a learned Single Judge of the Nagpur Bench of the High Court of Judicature at Bombay High Court in Criminal Writ Petition No. 558 of 2005 whereby and whereunder the writ petition filed by Appellant herein was dismissed. Appellant claims himself to be a vigilant employee He made an anonymous complaint to the Central Bureau of Investigation alleging corrupt practices and financial irregularities on the part of some officers of his department. First respondent No. 1 stated that on the basis of a source information, a preliminary inquiry was conducted in which the statements of various officers were recorded. However, the investigating officer was of the opinion that it was not necessary to register a First Information Report. It recommended for holding of departmental proceedings against the concerned officers. The said recommendation found favour with the higher officers. The opinion of the Central Vigilance Commission was also obtained. It is stated that pursuant to or in furtherance of the said recommendation, the Railway Administration initiated departmental proceedings against the concerned officers, namely, S/Shri Shyam Sunder, U.J. Dave, R.T. Pali and Ganga Prasad Sahu and imposed different penalties on them. The Railway Board thereafter by letters dated 06.12.2005 and 22.02.2006 advised the Central Vigilance Commission as regards imposition of penalties upon the said officers and closure of cases against them. Appellant, however, in the

8. AIR 2007 SC 351


meanwhile, was transferred by an order dated 20.05.2005. He approached the Central Administrative Tribunal contending that the said order of transfer was mala fide and being an outcome of his complaint and statements made in the inquiry conducted by the first respondent. By an order dated 17.08.2005, the application filed by Appellant was dismissed. The court held that- It is not in dispute that Appellant was directed to be transferred on administrative grounds by an order dated 20.05.2005. The complaint was although made by Appellant; but it being anonymous his address was not known. It may be true, initially he having been posted in the store in which the delinquent officers were also working, his statement had been recorded; but when a preliminary inquiry was conducted on the basis of an anonymous complaint without registering a First Information Report, neither it was necessary to comply with the provision of the proviso (b) appended to Sub-section (1) of Section 157 of the Code, nor having regard to the fact that the identity of Appellant was being unknown, the question of complying with the said provisions, even if it be held that the same was applicable, did not arise. Strong reliance has been placed by the learned Counsel on a decision of this Court on Hemant Dhasmana v. Central Bureau of Investigation 2001CriLJ4190 , wherein it was held that when an investigation had been conducted by the Central Bureau of Investigation, Chapter 12 of the Code would apply. There can be no dispute as regards the proposition of law laid down therein. But the said decision cannot be said to have any application whatsoever in the instant case. In the decision of the Kerala High Court in Velayudhan (supra), P.K. Balasubramanyan, J. (as His Lordship then was) opined that on objective assessment on the part of the officer, if he finds that no investigation into the allegation is needed, he could certainly act in terms of Section 157 of the Code. The said decision, however, will have no application in a case of this nature. So far as the decision of the first respondent herein, not to register a regular case so as to take up an investigation into the allegation against the concerned officers, is concerned, Appellant may have to pursue his own remedy keeping in view the fact that the first respondent before this Court has furnished the details of its findings in the preliminary inquiry as also the result of the departmental proceedings initiated against the delinquent officers.


9 Anju Chaudhary

Vs. State of U.P. and Anr.

Decided On: 13.12.20129

Facts- A cardinal question of public importance and one that is likely to arise more often than not in relation to the lodging of the First Information Report (FIR) with the aid of Section 156(3) of the Code of Criminal Procedure (for short, ‘the Code’) or otherwise independently within the ambit of Section 154 of the Code is as to whether there can be more than one FIR in relation to the same incident or different incidents arising from the same occurrence. The above question arises from the factual matrix which, shorn of the unnecessary details, can be stated as follows: On 16th November, 2007, one Parvez Parwaz, Respondent No. 2, claiming himself to be a social activist filed an application Under Section 156(3) in the Court of the Chief Judicial Magistrate, Gorakhpur. According to this complaint, one Mahant Aditya Nath Yogi, Member of Parliament and leader of an unregistered organization called the Hindu Yuva Vahini had been spreading hatred amongst Hindus and Muslims for a number of years and has also been causing fear amongst the Muslim community and harming them, demolishing the properties of Muslims and carrying out other acts of harassment. On 27thJanuary, 2007 when the complainant, Respondent No. 2 herein, was returning home from the Railway Station, Gorakhpur at about 8.00 p.m., Yogi Aditya Nath, Member of Parliament, Dr. Radha Mohan Dass Aggarwal, Member of the Legislative Assembly, Dr. Y.D. Singh, Member of the Legislative Council and Anju Chowdhary, Mayor of Gorakhpur, the Minister of State and BJP Leader Shiv Pratap Shukla, other office bearers and thousands of activists of Hindu Yuva Vahini, BJP and Vyapar Mandal, Gorakhpur, as well as various other persons whom the Petitioner does not know by name but can recognise, were holding a meeting as “Warning Meeting”. The meeting which was addressed by Yogi Aditya Nath who was saying that if blood of one Hindu be shed then they will not register any FIR with the administration against the bloodshed of one Hindu in the times to come, instead they will get ten persons (Muslims) killed. If damage is done to the shops and properties of Hindus, they would indulge in similar activities towards the Muslims. Anything can be done to save the glory of Hindus and all should prepare for a fight.

9. 2013 (1) KLJ 636


Another very vital fact, that requires to be noticed at this stage itself, is that on 26th January, 2007, Rajkumar Agrahari, a Hindu boy was murdered in Gorakhpur, which resulted in breaking out of communal violence in the city and imposition of curfew Under Section 144 of the Code. On 27th January, 2007 a condolence meeting for the murder of Raj Kumar was organised which was attended by many persons including Anju Chaudhary, the Mayor of Gorakhpur and Yogi Aditya Nath, Member of Parliament from that constituency. It appears from the record that the High Court had also passed some orders in regard to the investigation of the case and finally the police had registered a case Under Section 302 of the Indian Penal Code, 1860 (for short ‘Indian Penal Code’), and had even filed a charge sheet Under Section 173 of the Code before the Court of competent jurisdiction against six unknown accused persons. 6. Apart from this incident and before the public meeting attended by above-stated Anju Chaudhary, another incident took place at the shop of one Hazrat S/o Bismilla under Police Station Cantt. In this incident, the shop of Hazarat was set on fire at about 6 p.m. on 27th January, 2007 causing heavy damage to the same. In fact, as per the report lodged by him, he was working in that shop and owner of the shop was one Md. Isa Ansari. According to him, some unknown persons, claiming to be from Hindu Yuva Vahini, had set the shop on fire. He neither knew their names nor their addresses. This report was sent by post and was, thus, received by the Police Station and registered as FIR No. 145 of 2007 on 3rdFebruary, 2007. The police had registered a case against unknown persons Under Sections 147, 427, 436and 506 Indian Penal Code read with Section 23 of the U.P. Gangsters and Activists Prevention Act and Section 7 of the Criminal Law Amendment Act. The court held that- Is an accused entitled to hearing pre-registration of an FIR? Section 154 of the Code places an unequivocal duty upon the police officer in charge of a police station to register FIR upon receipt of the information that a cognizable offence has been committed. It hardly gives any discretion to the said police officer. The genesis of this provision in our country in this regard is that he must register the FIR and proceed with the investigation forthwith. While the position of law cannot be dispelled in view of the three Judge Bench judgment of this Court in State of Uttar Pradeshv. Bhagwant Kishore Joshi AIR 1964 SC 221, a limited discretion is vested in the investigating officer to conduct a preliminary inquiry pre-registration of a FIR as there is absence of any specific prohibition in the Code, express or implied. The subsequent judgments of this Court have clearly stated the proposition that such discretion hardly exists. In fact the view taken is that he is duty bound to


register an FIR. Then the question that arises is whether a suspect is entitled to any pre-registration hearing or any such right is vested in the suspect. The rule of audi alteram partem is subject to exceptions. Such exceptions may be provided by law or by such necessary implications where no other interpretation is possible. Thus rule of natural justice has an application, both under the civil and criminal jurisprudence. The laws like detention and Ors. specifically provide for post-detention hearing and it is a settled principle of law that application of this doctrine can be excluded by exercise of legislative powers which shall withstand judicial scrutiny. The purpose of the Code of Criminal Procedure and the Indian Penal Code is to effectively execute administration of the criminal justice system and protect society from perpetrators of crime. It has a twin purpose; firstly to adequately punish the offender in accordance with law and secondly to ensure prevention of crime. On examination, the scheme of the Code of Criminal Procedure does not provide for any right of hearing at the time of registration of the First Information Report. As already noticed, the registration forthwith of a cognizable offence is the statutory duty of a police officer in charge of the police station. The very purpose of fair and just investigation shall stand frustrated if pre-registration hearing is required to be granted to a suspect. It is not that the liberty of an individual is being taken away or is being adversely affected, except by the due process of law. Where the Officer In-charge of a police station is informed of a heinous or cognizable offence, it will completely destroy the purpose of proper and fair investigation if the suspect is required to be granted a hearing at that stage and is not subjected to custody in accordance with law. There would be the predominant possibility of a suspect escaping the process of law. The entire scheme of the Code unambiguously supports the theory of exclusion of audi alteram partem- pre-registration of an FIR. Upon registration of an FIR, a person is entitled to take recourse to the various provisions of bail and anticipatory bail to claim his liberty in accordance with law. It cannot be said to be a violation of the principles of natural justice for two different reasons. Firstly, the Code does not provide for any such right at that stage. Secondly, the absence of such a provision clearly demonstrates the legislative intent to the contrary and thus necessarily implies exclusion of hearing at that stage. This Court in the case of Union of India v. W.N. Chadha (1993) Suppl. (4) SCC 260 clearly spelled out this principle in paragraph 98 of the judgment that reads as under: If prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation lifeless, absurd and self-defeating. Further, the scheme of the


relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary. It is true that law recognizes common trial or a common FIR being registered for one series of acts so connected together as to form the same transaction as contemplated Under Section 220 of the Code. There cannot be any straight jacket formula, but this question has to be answered on the facts of each case. This Court in the case of Mohan Baitha v. State of Bihar (2001) 4 SCC 350, held that the expression ‘same transaction’ from its very nature is incapable of exact definition. It is not intended to be interpreted in any artificial or technical sense. Common sense in the ordinary use of language must decide whether or not in the very facts of a case, it can be held to be one transaction. It is not possible to enunciate any formula of universal application for the purpose of determining whether two or more acts constitute the same transaction. Such things are to be gathered from the circumstances of a given case indicating proximity of time, unity or proximity of place, continuity of action, commonality of purpose or design. Where two incidents are of different times with involvement of different persons, there is no commonality and the purpose thereof different and they emerge from different circumstances, it will not be possible for the Court to take a view that they form part of the same transaction and therefore, there could be a common FIR or subsequent FIR could not be permitted to be registered or there could be common trial.

Chapter 3

POWER OF INVESTIGATION

Section 67 – Procedure when investigation cannot be completed in twenty-four hours

Section 168 – Report of investigation by subordinate police officer Section 169 – Release of accused when evidence deficient Section 170 – Cases to be sent to Magistrate when evidence is sufficient Section 171 – Complainant and witnesses not to be required to accompany

police officer and not to be subject to restraint Section 172 – Diary of proceeding in investigation Section 173 – Report of police officer on completion of investigation Section 174 – Police to inquire and report on suicide, etc. Section 175 – Power to summon persons Section 176 – Inquiry by Magistrate into cause of death

1 T.T. Antony

Vs. State of Kerala and Ors. Decided on: 12.07.20011

Facts- The Communist Party of India (Marxist), C.P.I.(M), is said to have a strong hold in Kannur District of the State of Kerala. One Mr. M.V. Raghavan who was once a comrade-in-arms in C.P.I.(M) and was its M.L.A. for over 15 years, broke away from that party and formed a new party -- ‘The communist Marxist Party’ (CMP). He was elected as an M.L.A. on the ticket of CMP from the Azkeekkode Constituency, Kannur District. The CMP became a constituent of United Democratic Front (UDF) which formed the Government and was in power in the State of Kerala during the relevant period. He was a Minister in UDF Government having the portfolio of Co-operation and Ports. This gave rise to retribution in the rank and file of C.P.I.(M) particularly in 1. AIR 2001 SC 2637.

Power of Investigation 41

the youth wing (DYFI) which took upon itself to prevent his visits to Kannur District. In January 1993 during his visit to Azhikal (Kannur District) a favour Country-made bombs were hurled on him. In view of that incident the then Government ordered elaborate security arrangements for all his visits to Kannur District. It appears, much against the advice of the district administration, the Minister finalised his visit, fro inauguration of the ‘evening branch of the Co-operative Urban Bank’ in the Alakkandy Complex at Kuthuparamba - Tellicherry Road (Kannur District) on November 25, 1994. Far from being auspicious, it turned out to be an ill-starred day not only from the victims of police excesses and their families but also for the public and the public authorities as five persons died and six persons were injured in the police firing purportedly resorted to for the protection of the Minister and of public and private properties. In the melee which preceded the police firing more than hundred persons suffered injuries in the lathi charge and a few police personnel also sustained injuries. The court held that- Where the police transgress its statutory power of investigation the High Court under Section 482 Code of Criminal Procedure or Article 226/227 of the Constitution and this Court in appropriate case can interdict the investigation to prevent abuse of the process of the Court or otherwise to secure the ends of justice. In our view a case of fresh investigation based on the second or successive F.I.R.S. not being a counter case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first F.I.R. either investigation is underway or final report under Section 173(2) has been forwarded to the Magistrate may be a fit case for exercise of power under Section 482 Code of Criminal Procedure or under Article 226/227 of the Constitution. There cannot be any controversy that sub-section (8) of Section 173 Cr.P.C. empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narangs’ case (supra) it was, however, observed that it would be appropriate to conduct further investigation with the permission of the Court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) Cr.P.C.


2 D. Venkatasubramaniam and Ors.

Vs. M.K. Mohan Krishnamachari and Anr.

Decided on: 14.09.20092

Facts- In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under Section 491, Criminal P.C. to give directions in the nature of habeas corpus. In such a case as the present, however, the Court’s functions begin when a charge is preferred before it and not until then. It has sometimes been thought that Section 561A has given increased powers to the Court which it did not possess before that section was enacted. But this is not so. The section gives no new powers, it only provides that those which the Court already inherently possess shall be preserved and is inserted, as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code, and that no inherent power had survived the passing of that Act. The court held that- A short question that arises for our consideration in these appeals is whether it is open to the High Court in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure to interfere with thestatutory power of investigation by police into a cognizable offence? If such a power is available with the Court, what are the parameters for its interference? 2. It is well settled and this Court time and again, reiterated that the police authorities have the statutory right and duty to investigate into a cognizable offence under the scheme of Code of Criminal Procedure (for short ‘the Code’). The powers of investigation into cognizable offences are contained in Chapter XIV of the Code. Section 154 which is in that Chapter deals with information in cognizable offences and Section 156 with investigation into

2. JT 2009 (12) SC 447.


such offences and under these sections the police has the statutory right to investigate into the circumstances of any alleged cognizable offence...and this statutory power of the police to investigate cannot be interfered with by the exercise of power under Section 439 or under the inherent power of the court under Section 561A of Criminal Procedure Code. This Court, having found that the High Court had exceeded its jurisdiction in interfering with the investigation, interfered with the orders of the High Court by allowing the appeal preferred by the State. In our view the High Court exceeded its jurisdiction in making this direction which deserves to be set aside. While it is open to the High Court, in appropriate cases, to give directions for prompt investigation etc. the High Court cannot direct the investigating agency to submit a report that is in accord with its views as that would amount to unwarranted interference with the investigation of the case by inhibiting the exercise of statutory power by the investigating agency. There is also no allegation of any collusion and deliberate delay on the part of the investigating agency in the matter of investigation into the case that has been promptly registered on the information lodged by the respondent. The petition almost reads like a civil suit for recovery of the money. As noted hereinabove, the petition has been filed within one week of registration of the crime by which time the police had already started serious investigation as is evident from the material available on record. It is also required to notice that none of the appellants have been impleaded as party respondents to the petition filed under Section 482 of the Code. The State represented by its Sub Inspector of Police, Central Crime Branch, Egmore, Chennai alone was impleaded as the respondent. The investigating agency in its counter filed in the High Court stated that after obtaining necessary legal opinion, a case was registered and ‘commenced the investigation’. It is also stated in categorical terms that the police had “inquired all the connected witnesses, recorded their statements and also collected the material documents and confirmed commission of cognizable offences by all the accused”. The High Court, within a period of one month from the date of filing of the petition, finally disposed of the same observing that “it is obligatory on the part of the respondent police to conduct investigation in accordance with law, including recording of statements from witnesses, arrest, seizure of property, perusal of various documents, filing of charge sheet.


3 Vinay Tyagi

Vs. Irshad Ali @ Deepak and Ors.

Decided on: 13.12.20123

Facts- Irshad Ali @ Deepak, Respondent No. 1, in the present appeal was working as an informer of the Special Cell of Delhi Police in the year 2000. He was also working in a similar capacity for Intelligence Bureau. Primarily, his profession and means of earning his livelihood was working as a rickshaw puller. On 11th December, 2005, it is stated that he had a heated conversation with the Intelligence Bureau officials for whom he was working. It was demanded of him that he should join a militant camp in Jammu & Kashmir in order to give information with respect their activities to the Intelligence Bureau. However, the said Respondent refused to do the job and consequently claims that he has been falsely implicated in the present case. In fact, on 12th December, 2005, a report was lodged regarding disappearance of Respondent No. 2 by his family members at Police Station, Bhajanpura, Delhi. Not only this, the brother of the Respondent No. 2 also sent a telegram to the Prime Minister, Home Minister and Police Commissioner on 7th and 10th January, 2006, but to no avail. On 9th February, 2006, a report was published in the Hindustan Times newspaper, Delhi Edition, through SHO, Police Station, Bhajanpura, Delhi with the photograph of Respondent No. 2 seeking help of the general public in tracing him. On that very evening, it is stated that the Special Cell of the Delhi Police falsely implicated both the Respondents in a case, FIR No. 10/2006, under Sections 4 and 5 of the Explosive Substances Act and under Section120B, 121 and 122 of the Indian Penal Code, 1860 (for short ‘Indian Penal Code’) read with Section 25 of the Arms Act. Both the Respondents were described as terrorists. The court held that- The initial investigation is the one which the empowered police officer shall conduct in furtherance to registration of an FIR. Such investigation itself can lead to filing of a final report under Section 173 of the Code and shall take within its ambit the investigation which the empowered officer shall conduct in furtherance of an order for investigation passed by the court of competent jurisdiction in terms of Section 156 of the Code. 15. ‘Further investigation’ is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the

3. 2013 CriLJ 754.


Court in terms of Section 173. This power is vested with the Executive. It is the continuation of a previous investigation and, therefore, is understood and described as a ‘further investigation’. Scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as ‘supplementary report’. ‘Supplementary report’ would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a ‘reinvestigation’, ‘fresh’ or ‘de novo’ investigation. 16. However, in the case of a ‘fresh investigation’, ‘reinvestigation’ or ‘de novo investigation’ there has to be a definite order of the court. The order of the Court unambiguously should state as to whether the previous investigation, for reasons to be recorded, is incapable of being acted upon. Neither the Investigating agency nor the Magistrate has any power to order or conduct ‘fresh investigation’. This is primarily for the reason that it would be opposed to the scheme of the Code. It is essential that even an order of ‘fresh’/’de novo’ investigation passed by the higher judiciary should always be coupled with a specific direction as to the fate of the investigation already conducted. The cases where such direction can be issued are few and far between. This is based upon a fundamental principle of our criminal jurisprudence which is that it is the right of a suspect or an accused to have a just and fair investigation and trial. This principle flows from the constitutional mandate contained in Articles 21 and 22 of the Constitution of India. Where the investigation ex facie is unfair, tainted, mala fide and smacks of foul play, the courts would set aside such an investigation and direct fresh or de novo investigation and, if necessary, even by another independent investigating agency. As already noticed, this is a power of wide plenitude and, therefore, has to be exercised sparingly. The principle of rarest of rare cases would squarely apply to such cases. Unless the unfairness of the investigation is such that it pricks the judicial conscience of the Court, the Court should be reluctant to interfere in such matters to the extent of quashing an investigation and directing a ‘fresh investigation’.


Referring to the provisions of Section 173of the Code, the Court observed that the police has the power to conduct further investigation in terms of Section 173 of the Code but also opined that even the Trial Court can direct further investigation in contradistinction to fresh investigation, even where the report has been filed. It will be useful to refer to the following paragraphs of the judgment wherein the Court while referring to the case of Mithabhai Pashabhai Patel v. State of Gujarat (supra) held as under: 13. It is, however, beyond any cavil that ‘further investigation’ and ‘reinvestigation’ stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely, under Articles 226and 32 of the Constitution of India could direct a ‘State’ to get an offence investigated and/or further investigated by a different agency. In our considered view, the trial court has to consider the entire record, including both the Delhi Police Report filed under Section 173 of the Code as well as the Closure Report filed by the CBI and the documents filed along with these reports. It appears, the trial court may have three options, firstly, it may accept the application of accused for discharge. Secondly, it may direct that the trial may proceed further in accordance with law and thirdly, if it is dissatisfied on any important aspect of investigation already conducted and in its considered opinion, it is just, proper and necessary in the interest of justice to direct ‘further investigation’, it may do so.

4 Kishan Lal

Vs. Dharmendra Bafna and Anr.

Decided on: 21/07/20094

Facts- Jurisdiction of a Magistrate to direct reinvestigation of a case from time to time as laid down under Sub-section (8) of Section 173 of the Code of Criminal Procedure, 1973 (for short, “the Code”) is the question involved in this appeal. It arises out of a judgment and order dated 13th March, 2008 passed by a learned single judge of the High Court of Judicature at Madras in Crl. R.C. No. 245 of 2008 allowing the criminal revision application filed by the respondent No. 1 from an order dated 13th February, 2008 passed by the learned III Metropolitan Magistrate, George Town, Chennai.

4. AIR 2009 SC 2932.


Indisputably, on or about 30th December 2005, a complaint was lodged by the appellant against Accused Nos. 1 to 9, namely, Lakshmichand Bafna (Accused No. 1), Dharmendra Bafna (Accused No. 2), Mahendar Bafna (Accused No. 3), Rakesh Bafna (Accused No. 4), G.R. Surana (Accused No. 5), Shantilal Surana (Accused No. 6), Vijayaraj Surana (Accused No. 7), Dinesh Chand Surana (Accused No. 8) and Maran (Accused No. 9) before the Commissioner of Police, Chennai City, Chennai inter alia alleging that they connived together from the beginning and cheated him a sum of Rs. 4.65 crores by denying to return the money which was given to them for purchase of gold. It was alleged that the amount was entrusted on various dates from 06th October 2005 to 17th November 2005. Although they have admitted the liability to the extent of 4.95 crores, but did not return either any gold or money to the complainant. On or about 12th January 2006, an application for grant of anticipatory bail before the High Court of Madras was filed by all the accused stating that the Accused Nos. 5 to 8 are brothers and are the directors of their family business known as M/s Surana Corporation Limited. It was admitted that the Accused No. 2 is the sub-agent of Surana Corporation Limited who introduces investors. The court held that- It is now a well settled principle of law that when a final form is filed by any Investigating Officer in exercise of his power under Sub-section (2) of Section 173 of the Code, the first informant has to be given notice. He may file a protest petition which in a given case may be treated to be a complaint petition, on the basis whereof after fulfilling the other statutory requirements cognizance may be taken. The learned Magistrate can also take cognizance on the basis of the materials placed on record by the investigating agency. It is also permissible for a learned Magistrate to direct further investigation. The Investigating Officer when an FIR is lodged in respect of a cognizable offence, upon completion of the investigation would file a police report. The power of investigation is a statutory one and ordinarily and save and except some exceptional situations, no interference therewith by any court is permissible. It may also be further noticed that, even in Sub-section (3) of Section 156, the only power given to the Magistrate, who can take cognizance of an offence under Section 190, is to order an investigation; there is no mention of any power to stop aninvestigation by the police. The scheme of these sections, thus, clearly is that the power of the police to investigate any cognizable offence is uncontrolled by the Magistrate, and it is only in cases where the police decide not to investigate the case that the


Magistrate can intervene and either direct an investigation, or, in the alternative, himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case. The power of the police to investigate has been made independent of any control by the Magistrate. This interpretation, to some extent, supports the view that the scheme of the Criminal Procedure Code is that the power of the police to investigate a cognizable offence is not to be interfered with by the judiciary. Their Lordships of the Privy Council were, of course, concerned only with the powers of the High Court under Section 561A CrPC, while we have to interpret Section 159 of the Code which defines the powers of a Magistrate which he can exercise on receiving a report from the police of the cognizable offence under Section 157of the Code. In our opinion, Section 159 was really intended to give a limited power to the Magistrate to ensure that the police investigate all cognizable offences and do not refuse to do so by abusing the right granted for certain limited cases of not proceeding with the investigation of the offence. We have noticed hereinbefore the order passed by the learned Magistrate. His order that “several kinds of issues were not disclosed and beyond from knots of doubts” is vague in nature. It has not been pointed out that in what respect the investigation has not been carried out. What are hidden truths required to be unearthed had also not been pointed out. The learned Magistrate did not consider the fact that the investigation had been carried out by two different agencies and by responsible police officers. It has not been found that the Investigating Officer was in any way biased towards the complainant. Furthermore, if the contention of Mr. Tulsi is correct, the question as to whether Accused Nos. 3 to 10 were involved in the matter could be pointed out from the materials which had already been brought on record. Furthermore, whether the admissions made in the application for anticipatory bail were binding on them, the same being a matter of inference can also be urged. The other and further remedies as pointed out can be resorted to as also invocation of the provisions of Section 319 of the Code at the stage of trial is also permissible in law, if an appropriate case is made out therefor. We furthermore clarify that any observations made by the High Court or by us should not prejudice the either party and the learned Magistrate should consider the matter on its own merit and without in any way being influenced by the same, if any occasion arises in this behalf in future.


5 M.R.F. Ltd.

Vs. Manohar Parrikar and Ors.

[Alongwith civil Appeal Nos. 4213 and 4218 of 2002] AND

M.R.F. Ltd. and Anr. Vs.

The State of Goa and Anr. [Alongwith civil Appeal Nos. 4214 and 4217 of 2002]5

Facts - The Government of Goa, in purported exercise powers conferred upon them by Section 23 of the Indian Electricity Act, 1910 (`Electricity Act’ for short) issued a Notification on 30.09.1991, granting rebate of 25% in Tariff in respect of the power supply to the Low Tension and High Tension Industrial Consumers/appellants who apply for availing High Tension or Low Tension Power Supply on or after the 1st of October, 1991 for bona fide industrial activities and certified by the Industries Department, Government of Goa as eligible for concessional tariffs for a period of five years from the date on which electricity supply is made available to such units. This Notification was issued by the State Government in the name of the Governor of the State as per the Rules of Authentication framed under Article 166 (2) of the Constitution of India by following the procedure prescribed by the Business Rules framed under the Provisions of Article 166(3) of the Constitution of India after the State Cabinet had approved it. Though the said Notification was in subsistence, except one Industrial Unit, none applied to the State Government for the grant of benefit of the Notification for a long period or at least till 31.03.1995. On 31.03.1995, the said Notification was rescinded by the State Government in purported exercise of power conferred on it under Section 21 of the General Clauses Act read with Sections 23 & 51A of the Electricity Act with effect from 01.04.1995, by issuing a Notification dated 31.03.1995 strictly in accordance with the Business Rules and Rules of Authentication pursuant to the decision taken by the State Cabinet. The court held that- It appears that at one stage the applicant had prayed for taking up the Writ Petition No. 316/98 along with the other batch of Writ Petitions, but the said prayer was withdrawn. In the said batch of Writ Petitions, challenge had been thrown to the decision of government of Goa

5. 2010 (4) Bom CR 1.


communicated by the Chief Electrical Engineer vide Circular dated 31st March, 1998 to suspend the release of 25% rebate of power tariff to the industrial consumers. There was no challenge whatsoever to Notification dated 15th May, 1996, or Notification dated 1st August, 1996, or that the said Notifications were null and void and to nullify any effect given to them in the earlier batch of Writ Petitions which declaration is now sought by the Writ Petition No. 316/98. There was also no challenge to the guidelines framed by letter dated 12th December, 1995, which is sought to be challenged in the Writ Petition No. 316/98 on the ground that it is illegal to the extent it goes beyond the scope of 1991 Notification. No direction had been sought in the earlier batch of Writ Petitions for investigation into the grant of rebate, or for initiation of recovery proceedings against those units to whom 25% rebate had actually been paid, or adjusted, or to fix accountability of the concerned public servant, or authorities for causing loss to the State exchequer. After taking us through the Judgment, learned advocate for the applicant himself admitted that none of the declarations or directions claimed in Writ Petition No. 316/98 had been sought in the earlier batch of Writ Petitions. therefore, it cannot prima facie be said that the controversy in the earlier batch of Writ Petitions and the Writ Petition in question is the same. The then Power Minister had made a note on the file concerned that he had consulted the Chief Minister which was found to be false as per the police investigation conducted and that the then Chief Minister had clearly stated that neither he was ever consulted by the Power Minister nor was the file ever shown to him and that this fact was taken note of by the High Court of Bombay Panaji Bench in its Judgment dated 19/24.04.2001 in Writ Petition No. 316 of 1998, which is appealed against and pending in SLP (Civil) No. 4233 of 2001 before this Court. The respondent State in its affidavit draws support from certain observations from the Judgment of the High Court of Bombay dated 19/24.04.2001, to say that the Notifications mentioned above were non-est and action taken thereunder was null and void. It is the stand of the State, that, the High Court in W.P. No. 316 of 1998 has also dealt with the issue as to why the State had failed to bring before the High Court in the earlier batch of Writ Petition decided on 21.01.1999, wherein the High Court upheld the power of the State Government to withdraw the rebate by invoking provisions of Section 21 of the General Clauses Act. According to the State, the High Court in the earlier round of litigation gave a decision as regards the financial crunch faced by the Court and that the affidavits filed for and on behalf of the State Government therein by the then Chief Electrical Engineer of Goa Mr. T. Nagarajan, who as disclosed from the police investigations was himself a supporter of the illegal act of abuse of power and he could not be expected to place all facts


before the High Court. The State further contends that the High Court in its judgment in W.P No. 316 of 1998, has noted that even the attempts to have the Notifications ratified by the cabinet failed and there being legal dissent, the Cabinet refused to ratify the decision and withdrew the same. therefore, it cannot be said that the State had enacted the Act impugned to give effect to the judgment of the High Court in Writ Petition No. 316 of 1998.

6 Glass Fibre Ltd.

Vs. State of Goa and Anr.

Decided on: 03.05.20106

Facts- The above writ petitions are filed under Article 32 of the Constitution of India, inter alia tailing in question the vires and Constitutional validity of “The Goa (Prohibition of Further Payment and Recovery of Rebate Benefits) Act, 2002 (hereinafter referred to as ‘the Act’) enacted by the Legislature of the State of Goa. The petitioners seek a declaration from this Court that the Act is ultra vires of the Constitution of India and in the alternative seek a limited declaration that Sections 2, 3, 5 and 6 of the Act are unconstitutional and liable to be struck down. 2. The Act is attacked as unconstitutional mainly on the following grounds: • That it seeks to nullify a judgment of this Court dated 13.02.2001 affirming the view taken by High Court of Bombay Goa Bench, in its judgment dated 21.01.1999. The court held that - The impugned Act is not aimed at giving effect to the order of the High Court of Bombay dated 19/24.04.2001 in W.P No. 316 of 1998 as has been argued by the learned senior counsel for the petitioner. It is not passed because the abovementioned Special Leave Petition is pending before this Court. It has been passed with an aim to sustain the State Coffers and to prevent further abuse and payment out of the State’s Exchequer. It is placed on record by the State Government, that, the coffers of the State had already lost an amount of almost 16 Crores which the State could not afford and a further sum of Rs. 50 Crores of public money would have been lost, had it not been checked and prevented by the Act impugned. In this regard it is necessary take notice of the reiteration of the State in its affidavit that the earlier affidavits filed for and on behalf of the State Government before the High Court in the earlier round of litigations did not reflect correct and true

6. 2010 (4) BomCR 73.


factual position, It is stated by the State Government that there was neither financial sanction nor budgetary provision nor cabinet approval as required under Article 166(3) of the Constitution of India and therefore the two notifications dated 15.05.1996 and 01.08.1996 in issue could not be said to be the decision of the State Government in the strict sense of law and the claims for rebate under these Notifications which run into several Crores of Rupees could not be borne by the exchequer, more so when they are devoid of any legal sanctity and that it was impossible for the State to meet or bear such an enormous liability of such a magnitude. The respondent State in its affidavit draws support from certain observations from the Judgment of the High Court of Bombay dated 19/24.04.2001, to say that the Notifications mentioned above were non-est and action taken thereunder was null and void. It is the stand of the State, that, the High Court in W.P. No. 316 of 1998 has also dealt with the issue as to why the State had failed to bring before the High Court in the earlier batch of Writ Petition decided on 21.01.1999, wherein the High Court upheld the power of the State Government to withdraw the rebate by invoking provisions of Section 21 of the General Clauses Act. According to the State, the High Court in the earlier round of litigation gave a decision as regards the financial crunch faced by the Court and that the affidavits filed for and on behalf of the State Government therein by the then Chief Electrical Engineer of Goa Mr. T. Nagarajan, who as disclosed from the police investigations was himself a supporter of the illegal act of abuse of power and he could not be expected to place all facts before the High Court. The State further contends that the High Court in its judgment in W.P No. 316 of 1998, has noted that even the attempts to have the Notifications ratified by the cabinet failed and there being legal dissent, the Cabinet refused to ratify the decision and withdrew the same. Therefore, it cannot be said that the State had enacted the Act impugned to give effect to the judgment of the High Court in Writ Petition No. 316 of 1998. It is also placed on record that there was neither any budgetary allocation nor any provision made for such payments and these payments were sought to be diverted to the private industrialists, by virtue of the two notifications mentioned above and with a view to put an end to this illegality, the impugned Act has been enacted in the larger public interest to save the Public Exchequer from being drained off. These amounts always belonged to the State Government and the State had every right to recover the same, by resorting to legislative measures from the beneficiaries of an illegal Act, who cannot be allowed to retain the benefits. In the earlier round of litigation before the High Court, the State had taken the stand that there was financial crunch being faced by the State Government and that it was the primary reason for the State Government to withdraw the rebate. This Court and the High Court in the


earlier round of litigation merely dealt with and interpreted the rights of the Consumer to recover and be paid the rebate on electricity tariff in view of the two notifications being in force. This Court and the High Court in those proceedings did not deal with or decide their validity. The question there was, whether the benefits granted by the Notifications could be withdrawn by a mere administrative circular of the Chief Electrical Engineer dated 31.03.1998 and the High Court held in those writ petitions that the two notifications could not be withdrawn by a mere administrative Order and on that premise the High Court had directed the State to pay the amounts and this Court confirmed the same in its Order. What the Legislature seeks to do by the Act impugned is to cure the defect of any kind and thereby to ensure that public funds are not drained and it is in larger public interest that this Act is enacted. The Act which has been passed in the larger public interest and with a view to sub serve the public cause and to prevent abuse of public exchequer and to remedy the fraud played by an individual on the public exchequer and to recover the amounts paid under these two Notifications and to prevent further loss of public funds cannot be termed as unconstitutional. It cannot therefore be said that the Act impugned is aimed at nullifying a judgment of this Court dated 13.02.2001, affirming the view taken by High Court of Bombay Panaji Bench, in its judgment dated 21.01.1999. It cannot also be said that the Act impugned seeks to give effect to the decision of the High Court of Bombay dated 19/24th April” 2001, in Writ Petition No. 316 of 1998.

7 M. Narayandas

Vs. State of Karnataka and Ors

Decided On: 19.09.20037

FACTS-The Appellant is the owner of survey No. 66 in Sarakki village. He appears to have entered into an agreement to sell dated 18th February, 1988 with his sister one Nirmala. This agreement was for 25,188 sq ft in survey No. 66. Respondent No. 2 is the son of the said Nirmala. Respondent No. 4 is the daughter of the said Nirmala. Respondent No. 3 is a daughter-in-law, through a deceased son of Nirmala. It is the case of the Appellant that he had permitted his sister Nirmala to reside in the plot agreed to be sold to her as his licensee. On 7th September, 2000 Respondents 2 to 4 filed a suit for partition. Appellant claims that in this suit, partition was also claimed of the 25,188 sq ft. Respondents 2 to 4 deny that the claim in partition suit includes this piece

7. 2004 CriLJ 822.


of land. We are not concerned with this controversy, save and except to note that admittedly the documents set out hereunder were not produced or relied upon in this suit. The Appellant claims that he learnt that Respondents 2 to 4 were trying to get this piece of land transferred to their names on the basis of some partition deed. The Appellant thus filed a suit against Respondents 2 to 4 for a permanent injunction restraining change of name in the records. Respondents 2 to 4 filed a written statement wherein they relied upon three documents all dated 21stOctober, 1989. The documents are (a) a general power of attorney (b) a sale cum possession receipts (c) and affidavits purported to have been sworn by the Appellant. The Appellant claims that these documents were never executed by him. The Appellant claims that he also found some manipulations in the agreement to sell dated 18th February, 1988, The Appellant thus filed, on 27th May, 2002, a complaint with the police station at Ulsoor complaining that these documents were forged and fabricated. An FIR under Sections 468, 470, 471 and 120B Indian Penal Code came to be registered. Respondents 2 and 3 filed a Petition under Section 482 of the Criminal Procedure Code to quash the FIR. This has been allowed by the High Court, Hence this Appeal. COURT HELD THAT-. It was lastly submitted that the quest/on whether Section 195 Criminal Procedure Code applied or not had not been considered by the High Court and therefore the case should be sent back to the High Court for consideration thereof. It was submitted that In the petition it had been squarely urged that Section 195 applied. It was submitted that the High Court should have considered this aspect. It was pointed out that the question whether Section 195 applies to documents forged prior to the proceedings in which they are tendered has, due to conflict of decisions, been referred to a 5 Judge bench. We see no substance in this submission. The law on the point is clear. At the stage of investigation Section 195 has no application. We are therefore not concerned with the question whether Section 195 applies to documents forged/fabricated prior to their being produced in Court. At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the concerned police officer cannot embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register 3 case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to section 157. (As we have proposed to make a detailed discussion about the power of a police officer in the


field of investigation of a cognizable offence within the ambit of Sections 156 and 157 of the Code in the ensuing part of this judgment, we do not propose to deal with those sections in extenso in the present context.) In case, an officer in charge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by Sub-section (3) of Section 154 of the Code.

8 Hemant Dhasmane

Vs. Central Bureau of Investigation and anr.

Decided on: 17.08.20018

Facts- A complainant, after investigation, was transposed as an accused. Such a prodigy happened in this case. A trap to catch a big fish (Chief Commissioner of Income Tax) was orchestrated by the Central Bureau of Investigation (‘the CBI’ for short) with a bewitching bait, but still he did not bite it. But the appellant says that two sons of the said Chief Commissioner collected the bulky cash offered to their father. On such a complaint the CBI conducted investigation. after the investigation the CBI turned against the complainant/appellant and ordered him to be prosecuted for giving false information with intent to cause the public servant use his lawful power to the detriment of the public. However, the final report laid by the CBI was not acceptable to the Special Judge and he directed further investigation into the matter but the High Court reversed the said direction by the impugned order. 3. Appellant styles himself as a disciple of one Swami Rama, a non-resident Indian, who founded a Trust by name “Himalayan institute of Medical Sciences” at Dehra Dun with high profile public personage shown as its patrons. The Trust had a lot of Income Tax, Meerut ,was troubling the then Commission of Income Tax, Meerut, was troubling the Trust and its founder with notices frequently issued. It was in the said context that they approached B.P. Gupta, Chief Commissioner of Income Tax, Kanpur (the third respondent) for redressed of their grievances. 8. AIR 2001 SC 2721.


The court Held that- Although the said sub-section does not, in specific terms, mention about the powers of the Court to order further investigations the power of the police to conductfurther investigation envisaged there in can be triggered into motion at the instance of the Court. When any such order is passed by a court which has the jurisdiction to do so it would not be a proper exercise of revisional powers to interfere therewith because the further investigation would only be for the ends of justice. After the further investigation, the authority conducting such investigation can either reach the same conclusion and reiterate it or it can reach a different conclusion. During such extended investigation the officers can either act on the same materials or on other materials which may come to their notice. It is for the investigating agency to exercise its power when it is put back to that track. If they come to the same conclusion it is of added advantage to the persons against whom the allegations were made, and if the allegations are found false again the complainant would be in trouble. So from any point of view the Special Judge’s direction would be of advantage for the ends of justice. It is too premature for the High Court of predict that the investigating officer would not be able to collect any further material at all. That is an area which should have been left to the investigating officer to survey and recheck.

9 Lalita Kumari

Vs. Govt. of U.P. and Ors. Decided on: 12.11.20139

Facts- The important issue which arises for consideration in the referred matter is whether “a police officer is bound to register a First Information Report (FIR) upon receiving any information relating to commission of a cognizable offence under Section 154 of the Code of Criminal Procedure, 1973 (in short ‘the Code’) or the police officer has the power to conduct a “preliminary inquiry” in order to test the veracity of such information before registering the same?” The present writ petition, under Article 32 of the Constitution, has been filed by one Lalita Kumari (minor) through her father, viz., Shri Bhola Kamat for the issuance of a writ of Habeas Corpus or direction(s) of like nature against the Respondents herein for the protection of his minor daughter who has been kidnapped. The grievance in the said writ petition is that on 11.05.2008, a written report was submitted by the Petitioner before the officer in-charge of

9. AIR 2014 SC 187.


the police station concerned who did not take any action on the same. Thereafter, when the Superintendent of Police was moved, an FIR was registered. According to the Petitioner, even thereafter, steps were not taken either for apprehending the accused or for the recovery of the minor girl child. The court held that- Rajinder Singh Katoch (supra), P. Sirajuddin (supra), Bhagwant Kishore Joshi (supra) and Sevi (supra), which hold that before registering an FIR under Section 154 of the Code, it is open to the police officer to hold a preliminary inquiry to ascertain whether there is a prima facie case of commission of a cognizable offence or not. According to learned senior counsel, Section 154 of the Code forms part of a chain of statutory provisions relating to investigation and, therefore, the scheme of provisions of Sections 41, 157, 167, 169, etc., must have a bearing on the interpretation of Section 154. In addition, he emphasized that giving a literal interpretation would reduce the registration of FIR to a mechanical act. Parallelly, he underscored the impact of Article 21 on Section 154 of the Code by referring to Maneka Gandhi v. Union of India : (1978) 1 SCC 248, wherein this Court has applied Article 21 to several provisions relating to criminal law. This Court has also stated that the expression “law” contained in Article 21 necessarily postulates law which is reasonable and not merely statutory provisions irrespective of its reasonableness or otherwise. Learned senior counsel pleaded that in the light of Article 21, provisions of Section 154 of the Code must be read down to mean that before registering an FIR, the police officer must be satisfied that there is a prima facie case for investigation. He also emphasized that Section 154 contains implied power of the police officer to hold preliminary inquiry if he bona fide possess serious doubts about the credibility of the information given to him. By pointing out Criminal Law (Amendment) Act, 2013, particularly, Section 166A, Mr. Naphade contended that as far as other cognizable offences (apart from those mentioned in Section 166A) are concerned, police has a discretion to hold preliminary inquiry if there is some doubt about the correctness of the information. Mr. K.V. Viswanathan, learned Additional Solicitor General appearing on behalf of Union of India submitted that in all the cases where information is received under Section 154 of the Code, it is mandatory for the police to forthwith enter the same into the register maintained for the said purpose, if the same relates to commission of a cognizable offence. According to learned ASG, the police authorities have no discretion or authority, whatsoever, to ascertain the veracity of such information before deciding to register it. He also pointed out that a police officer, who proceeds to the spot under Sections 156 and 157 of the Code, on the basis of either a cryptic information or source information, or a rumour etc., has to immediately, on gathering information relating to the commission of a cognizable offence, send a report (ruqqa) to


the police station so that the same can be registered as FIR. He also highlighted the scheme of the Code relating to the registration of FIR, arrest, various protections provided to the accused and the power of police to close investigation. In support of his claim, he relied on various decisions of this Court viz., Bhajan Lal (supra), Ramesh Kumari (supra) and Aleque Padamsee (supra). He also deliberated upon the distinguishable judgments in conflict with the mandatory proposition, viz.,State of Uttar Pradesh v. Bhagwant Kishore Joshi : (1964) 3 SCR 71, P. Sirajuddin (supra), Sevi (supra), Shashikant (supra), Rajinder Singh Katoch (supra), Jacob Mathew v. State of Punjab and Anr. However, on the other hand, there are a number of cases which exhibit that there are instances where the power of the police to register an FIR and initiate an investigation thereto are misused where a cognizable offence is not made out from the contents of the complaint. A significant case in this context is the case of Preeti Gupta v. State of Jharkhand : (2010) 7 SCC 667 wherein this Court has expressed its anxiety over misuse of Section 498A of the Indian Penal Code, 1860 (in short ‘the Indian Penal Code’) with respect to which a large number of frivolous reports were lodged. This Court expressed its desire that the legislature must take into consideration the informed public opinion and the pragmatic realities to make necessary changes in law. At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the concerned police officer cannot embark upon an inquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section 157. (As we have proposed to make a detailed discussion about the power of a police officer in the field of investigation of a cognizable offence within the ambit of Sections 156 and 157 of the Code in the ensuing part of this judgment, we do not propose to deal with those sections in extenso in the present context.) In case, an officer in charge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either


investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by Sub-section (3) of Section 154 of the Code. The parties before us did not dispute the legal position that a GD entry may be treated as a first information report in an appropriate case, where it discloses the commission of a cognizable offence. If the contention of the Appellants is upheld, the order of the High Court must be set aside because if there was in law a first information report disclosing the commission of a cognizable offence, the police had the power and jurisdiction to investigate, and in the process of investigation to conduct search and seizure. It is, therefore, not necessary for us to consider the authorities cited at the Bar on the question of validity of the preliminary inquiry and the validity of the search and seizure. In Ramesh Kumari (supra), this Court held as under: That a police officer mandatorily registers a case on a complaint of a cognizable offence by the citizen under Section 154 of the Code is no more res integra. The point of law has been set at rest by this Court in State of Haryana v. Bhajan Lal. This Court after examining the whole gamut and intricacies of the mandatory nature of Section 154 of the Code has arrived at the finding in paras 31 and 32 of the judgment as under: At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the police officer concerned cannot embark upon an inquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section 157. (As we have proposed to make a detailed discussion about the power of a police officer in the field of investigation of a cognizable offence within the ambit of Sections 156 and 157 of the Code in the ensuing part of this judgment, we do not propose to deal with those sections in extenso in the present context.) In case, an officer in charge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made by any


police officer subordinate to him in the manner provided by Sub-section (3) of Section 154 of the Code. Therefore, the Scheme of the Code not only ensures that the time of the police should not be wasted on false and frivolous information but also that the police should not intentionally refrain from doing their duty of investigating cognizable offences. As a result, the apprehension of misuse of the provision of mandatory registration of FIR is unfounded and speculative in nature.

10 Divine Retreat Centre

Vs. State of Kerala and Ors. Decided On: 11.03.200810

FACTS- This appeal by grant of special leave is directed by Divine Retreat Centre assailing the judgment and order dated 10-3-2006 of the High Court of Kerala rendered in Criminal MC No. 405 of 2006, directing investigation of Crime No. 381 of 2005 of Koratty Police Station to be taken away from the investigating officer and entrusting the same to a special investigation team headed by Vension M. Paul, IPS, Inspector General of Police, presently working as Managing Director of Kerala Police Housing Construction Corporation, Thiruvananthapuram. The High Court also directed the same authority to investigate/inquire into various other allegations levelled in an anonymous petition filed against Divine Retreat Centre. The impugned judgment and order arises out of the proceedings suo motu initiated by the Court on the basis of anonymous petition addressed to Justice Padmanabhan Nair. 5. The tell-tale facts disclosed from the record may have to be noted in some detail. One Mini Varghese, a female remand prisoner, sent a petition to the District Judge, Kozhikode, inter alia, alleging that while she was taking shelter in Divine Retreat Centre she had been subjected to molestation and exploitation and became pregnant from Father Jose Thadathil (later identified as Father Mathew Thadathil). When she came out of the centre to attend her sister’s marriage she was implicated in a false theft case and lodged in the jail. The court held that-The sum and substance of the above deliberation and analysis of the law cited leads us to an irresistible conclusion that the investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict

10. AIR 2008 SC 1614.


compliance with the provisions under Chapter XII of the Code. However, we may hasten to add that unfettered discretion does not mean any unaccountable or unlimited discretion and act according to one’s own choice. The power to investigate must be exercised strictly on the condition of which that power is granted by the Code itself. The High Court in exercise of its inherent jurisdiction cannot change the investigating officer in the midstream and appoint any agency of its own choice to investigate into a crime or whatsoever basis and more particularly on the basis of complaints or anonymous petitions addressed to a named Judge. Such communications cannot be converted into suo motu proceedings for setting the law in motion. Neither are the accused nor the complainant or informant entitled to choose their own investigating agency to investigate a crime in which they may be interested. The question that arises for our consideration is whether the contents of the petition submitted by the victim and as well as the allegations made in the anonymous complaint reveal any cause for issuing directions relieving the investigating officer of his statutory power and duty to investigate Crime No. 381 of 2005 under Section 376(g) of the Penal Code. The allegations in the anonymous complaint are in two parts. The first part relates to Crime No. 381 of 2005 wherein it is alleged that investigation in crime has been “put to cold storage due to influence exerted at high places”. This is required to be considered along with the petition sent by the victim herself making certain allegations against the police in general. The allegations are against two police constables that they have tortured her mentally in connection with the investigation of the case. She complained that truth will never come, out if the case is entrusted to the police for investigation. She prayed for a “confidential investigation”. Neither has the anonymous petition nor the complaint made by the victim been directed against the investigating officer complaining of any bias or any attempt on his part to destroy the available evidence. Be that as it may, Crime No. 381 of 2005 itself was registered pursuant to the order of the Magistrate under Section 156(3) of the Code. We are unable to appreciate as to how the learned Judge could have ordered investigation by special investigation team constituted by himself on the strength of such wild, imaginary and vague allegations. It is difficult to discern the basis for arriving at the conclusion that the entire attempt of the investigating officer was to exonerate the accused and make the complainant as the accused. The investigation was in progress as is evident from the case diary. The special investigation team also proceeded on the same lines as the of the investigating officer and similar observations as the one made by the investigating officer are to be found in the report of the special investigation team submitted to this Court. The facts gathered by the investigating officer about the victim were part of the result of the investigation.


11 Smt. Mona Panwar

Vs. The Hon’ble High Court of Judicature at Allahabad through its

Registrar and Ors. Decided On: 02.02.201111

Facts- The present appeal is filed by the Appellant, who is member of judicial service of the State of Uttar Pradesh, for expunging the remarks made by the learned Single Judge of the High Court of Judicature at Allahabad in Criminal Misc. Application No. 21606 of 2009 while setting aside order dated August 1, 2009, passed by the Appellant in case No. nil of 2009 titled as Shabnam v. Irshad registering the application filed by the Respondent No. 3 under Section 156(3) of the Code of Criminal Procedure (“Code” for short) as complaint and directing the Registry to present the file before the Appellant on August 9, 2009 for recording the statement of the complainant, i.e., of Shabnam under Section 200 of the Code. The facts giving rise to the present appeal are as under: The Respondent No. 3 is wife of one Mustqeem and resides at Village Sayyed Mazra, District Saharanpur with her husband and in-laws. It may be stated that the accused is her father-in-law. According to the Respondent No. 3 her father-in-law had bad eye on her since her marriage. The case of the Respondent No. 3 was that in the intervening night of June 18/19, 2009 at about 3 O’clock she was all alone in her room as her husband had gone out and she was sleeping but the doors of the room were kept open due to heat. The allegation made by the Respondent No. 3 is that Irshad, i.e., her father-in-law came inside her room, caught hold of her with bad intention, scratched her breasts, forcibly pushed cloth in her mouth and forcibly committed rape on her. The case of the Respondent No. 3 was that though she offered resistance, Irshad did not pay any heed and committed rape on her. The allegation made by her was that because of the incident she became unconscious and in the morning she narrated the whole incident to her mother-in-law Bindi, but she advised her not to disclose the incident to anyone as it was a matter of reputation of the family. According to Respondent No. 3 she telephoned her mother, who arrived at her in-laws’ place along with Muneer, her brother-in-law, on a motor cycle but Irshad in the meanwhile had fled away from the village. The case projected by the Respondent No. 3 was that as her condition was deteriorating, she was got medically examined in District hospital by her mother and thereafter she had

11. 2011 CriLJ 1619.


gone to the Police Station, Nakur, but the police had refused to register her FIR. It was claimed by the Respondent No. 3 that under the circumstances she had moved an application before the Senior Superintendent of Police, Saharanpur but he had also not taken any action and, therefore, she had filed an application under Section 156(3) of the Code before the learned Judicial Magistrate II, Court No. 14, Saharanpur mentioning therein as to how the incident of rape with her had taken place and praying the learned Magistrate to direct the Officer-in-charge of Police Station, Nakur, to register her complaint and investigate the case against the accused under Section 156(3) of the Code. The court held that- Section 156(1) of the Code authorizes the police to investigate into a cognizable offence without requiring any sanction from a judicial authority. However, Sub-section (3) of Section 156 of the Code provides that any Magistrate empowered under Section 190 of the Code may order such an investigation as mentioned in Sub-section (1) of the said Section. Section 190 of the Code deals with cognizance of offences by Magistrates and inter alia provides that any Magistrate of the first class may take cognizance of an offence (a) upon receiving a complaint of facts which constitute such offence, (b) upon a police report of such facts and (c) upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed. Neither Section 154 nor Section 156 of the Code contemplates any application to be made to the police under Section 156(3) of the Code. What is provided in Section 156(1) of the Code is that any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquiry into or try under the provisions of Chapter XIII. However, this Court finds that in the present case it was alleged by the Respondent No. 3 that she had filed complaint before police but according to her, the police officer in charge of the police station had refused to register her complaint and, therefore, she had made application to the Senior Superintendent of Police as required by Section 154(3) of the Code, but of no avail. Therefore, the Respondent No. 3 had approached the Appellant, who was then discharging duties as Judicial Magistrate II, Court No. 14, Saharanpur. When the complaint was presented before the Appellant, the Appellant had mainly two options available to her. One was to pass an order as contemplated by Section 156(3) of the Code and second one was to direct examination of the complainant upon oath and the witnesses present, if any, as mentioned in Section 200 and proceed further with the matter as provided by Section 202 of the Code. An order made under Sub-section (3) of Section 156 of the Code is in the nature of a peremptory reminder or intimation to the police to exercise its plenary power of investigation under Section


156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with the final report either under Section 169 or submission of charge sheet under Section 173 of the Code. A Magistrate can under Section 190 of the Code before taking cognizance ask for investigation by the police under Section 156(3) of the Code. The Magistrate can also issue warrant for production, before taking cognizance. If after cognizance has been taken and the Magistrate wants any investigation, it will be under Section 202 of the Code. The phrase “taking cognizance of” means cognizance of offence and not of the offender. Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the Magistrate takes cognizance of an offence on a complaint or on a police report or upon information of a person other than a police officer. Before the Magistrate can be said to have taken cognizance of an offence under Section 190(1)(b) of the Code, he must have not only applied his mind to the contents of the complaint presented before him, but must have done so for the purpose of proceeding under Section 200 and the provisions following that Section. However, when the Magistrate had applied his mind only for ordering an investigation under Section 156(3) of the Code or issued a warrant for the purposes of investigation, he cannot be said to have taken cognizance of an offence. Taking cognizance is a different thing from initiation of the proceedings. One of the objects of examination of complainant and his witnesses as mentioned in Section 200 of the Code is to ascertain whether there is prima facie case against the person accused of the offence in the complaint and to prevent the issue of process on a complaint which is either false or vexatious or intended only to harass such person. Such examination is provided, therefore, to find out whether there is or not sufficient ground for proceeding further.

12 Lalita Kumari

Vs. Government of U.P. and Ors.

AND Samshudheen

Vs. State, represented by Dy. Superintendent of

Police Tamil Nadu


AND Baldev Singh Cheema

Vs. State of Punjab and Ors.

Along with SLP (Criminal) No. 5986 of 2010] AND

Daljit Singh Grewal Vs.

Ramesh Inder Singh Decided On: 27.02.201212

Facts- The petition has been filed before this Court under Article 32 of the Constitution of India in the nature of habeas corpus to produce Lalita Kumari, the minor daughter of Bhola Kamat. On 5.5.2008, Lalita Kumari, aged about six years, went out of her house at 9 p.m. When she did not return for half an hour and Bhola Kamat was not successful in tracing her, he filed a missing report at the police station Loni, Ghaziabad, U.P. On 11.5.2008, Respondent No. 5 met Bhola Kamat and informed him that his daughter has been kidnapped and kept under unlawful confinement by the Respondent Nos. 6 to 13. The Respondent-police did not take any action on his complaint. Aggrieved by the inaction of the local police, Bhola Kamat made a representation on 3.6.2008 to the Senior Superintendent of Police, Ghaziabad. On the directions of the Superintendent of Police, Ghaziabad, the police station Loni, Ghaziabad registered a First Information Report (F.I.R.) No. 484 dated 6.6.2008 under Sections 363/366/506/120B Indian Penal Code against the private Respondents. 5. Even after registration of the FIR against the private Respondents, the police did not take any action to trace Lalita Kumari. According to the allegation of Bhola Kamat, he was asked to pay money for initiating investigation and to arrest the accused persons. Ultimately, the Petitioner filed this petition under Article 32 of the Constitution before this Court. The court Held That- That a police officer mandatory registers a case on a complaint of a cognizable offence by the citizen under Section 154 of the Code is no more res integra. The point of law has been set at rest by this Court in State of Haryana v. Bhajan Lal. This Court after examining the whole gamut and intricacies of the mandatory nature of Section 154of the

12. AIR 2012 SC 1515.


Code has arrived at the finding in paras 31 and 32 of the judgment as under: (SCC pp. 354-55) At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the police officer concerned cannot embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section 157. (As we have proposed to make a detailed discussion about the power of a police officer in the field of investigation of a cognizable offence within the ambit of Sections 156 and 157 of the Code in the ensuing part of this judgment, we do not propose to deal with those sections in extenso in the present context.) In case, an officer in charge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by Sub-section (3) of Section 154 of the Code. Be it noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression ‘information’ without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions, ‘reasonable complaint’ and ‘credible information’ are used. Evidently, the non-qualification of the word ‘information’ in Section 154(1) unlike in Section41 (1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, ‘reasonableness’ or ‘credibility’ of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word ‘information’ without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by the Legislative Council of India read that ‘every complaint or information’ preferred to an officer in charge of a police station should be reduced into writing which


provision was subsequently modified by Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter read that ‘every complaint’ preferred to an officer in charge of a police station shall be reduced in writing. The word ‘complaint’ which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word ‘information’ was used in the Codes of 1882 and 1898 which word is now used in Sections 154, 155, 157 and 190(c) of the present Code of 1973 (Act 2 of 1974). An overall reading of all the Codes makes it clear that the condition which is sine qua non for recording a first information report is that there must be information and that information must disclose a cognizable offence. In further support of the proposition that a police officer is not bound to register an FIR on mere disclosure of existence of ingredients of cognizable offence, it is submitted that the statute does not contemplate that for the purpose of investigation, recording of an FIR is a condition precedent. Section 156 empowers the police to do so. Similarly, Section 157 clearly lays down that if from information received or otherwise an officer in charge of the police station has reason to suspect the commission of an offence, he can investigate into the same. In Section 157(1) the expression “from information received” obviously refers to complaint under Section 154 Code of Criminal Procedure registered as an FIR. The word “otherwise” in Section 157 Code of Criminal Procedure clearly indicates that recording of an FIR is not a condition precedent to initiation of investigation. The very fact that the police have a power of investigation independent of registration of an FIR is a clear pointer to the legislative intent that a police officer is not bound to register an FIR in each and every case.

13 State of Orissa

Vs. Mahima @ Mahimananda Mishra and Ors.

Decided On: 16.09.200213

Facts - The state is in appeal against an order of the Orissa High Court which, inter alia, records as below: “I am, therefore, of the view that reopening the investigation by examining those witnesses who were examined or available to be examined at the time of earlier investigation and recording their statements almost five and half years after the final form was submitted do not appear to be bona fide and further investigation on the basis of statements of witnesses available to be examined 13. 2003 (1) ACR 320 (SC).


during earlier investigation amounts to abuse of process of court and exercise of power not intended to be exercised under Section 173(8) of the Code. The scope of Section 173(8) of the Code cannot be stretched to that extent. Having observed that further investigation by the crime branch by way of examining these witnesses is not bona fide, I quash further investigation on that ground. However, it shall be open for the investigating agency to make further investigation in terms of Section 173(8) of the Code on the basis of such materials which were not available at that time of earlier investigation or not within the knowledge of the investigating agency.” The court held that- The language of the statute is clear enough to indicate that it is not a restrictive one but it has a widest possible sanctity. The statute has provided the said provision for the sake of concept of justice and in the event, the interest of justice so requires, this further power of investigation has been conferred on to the police under Section 173(8) of the Code. On the wake of the aforesaid and having considered the submissions and observations of this Court as in Hemant’s case (supra), we do feel it expedient to record that the learned single judge in exercise of the power under criminal revisional jurisdiction ought not to have interpreted Section 173(8) of the Code with a restriction. The last two lines of the paragraph noticed above viz. “which were not available at the time of earlier investigation or not within the knowledge of the investigating agency” cannot be said to be a proper expression of law in terms of Section 173(8) of the Code. The judgment impugned is erroneous on a reading of Section 173(8) of the Code and as such cannot be concurred with. The appeal is thus allowed. The order impugned is set aside. The investigating agency will be at liberty to investigate further as in the manner as it deems fit and proper in accordance with law. In the event the respondents herein require any further assistance in the matter of obtaining anticipatory bail, the respondents would be at liberty to approach the High Court for appropriate orders and the factum of setting aside of the order impugned, however, would not in any way, affect such a decision of the High Court.

14 State of Karnataka and Anr.

Vs. Pastor P. Raju

Decided On: 04.08.200614

Facts - This appeal, by special leave, has been preferred against the judgment and order dated 23.2.2005 of Karnataka High Court by which initiation of 14. AIR 2006 SC 2825.


criminal proceedings against the respondent under Section 153B IPC were quashed in exercise of jurisdiction under Section 482 Cr.P.C. One R.N. Lokesh son of R.S. Narayanappa resident of Ramapura, Channapatna, lodged an FIR alleging that at about 7.30 p.m. on 14.1.2005, he along with some other persons was celebrating Sankranthi festival when the respondent Pastor P. Raju, who is a member of Christian community, came there and made an appeal to them to get converted to Christian religion where they would get many benefits and facilities which were not available to them in Hindu religion to which they belong. It is also alleged that many persons who were present there resented the appeal made by the respondent and strongly opposed the plea or assertion for their conversion from Hindu religion to Christian religion. On the basis of the FIR, a case as Crime No. 8 of 2005 was registered under Section 153B IPC at the concerned police station. The respondent was arrested on 15.1.2005 and was produced before a Magistrate on the same day who remanded him to judicial custody as no application for bail had been filed. Subsequently, a bail application was moved under Section 436 Cr.P.C. before the learned Magistrate which was rejected on the ground that the offence under Section 153B IPC being a non-bailable offence, the power under the aforesaid provision could not be exercised as the said provision empowered the Court to grant bail in bailable offences only. The respondent filed a petition under Section 482 Cr.P.C. on 27.1.2005 for quashing of the proceedings initiated against him under Section 153B IPC in case Crime No. 8 of 2005. This petition was allowed by the High Court by the order under challenge and the entire proceedings initiated against the respondent were quashed. The court held that- In the present case neither any complaint had been filed nor any police report had been submitted nor had any information been given by any person other than the police officer before the Magistrate competent to take cognizance of the offence. After the FIR had been lodged and a case had been registered under Section 153B IPC, the respondent was arrested by the police and thereafter he had been produced before the Magistrate. The Magistrate had merely passed an order remanding him to judicial custody. Section 167 Cr.P.C. finds place in Chapter XII which deals with Information to the Police and Their Powers to Investigate. This Section gives the procedure which has to be followed when investigation cannot be completed within twenty-four hours and requires that whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57 and there are grounds for believing that the accusation or information is well founded, he shall be forthwith transmitted to the nearest Judicial Magistrate along with copy of the entries in the diary. Sub-section (2) of Section 167 will


show that even a Magistrate who has no jurisdiction to try the case can authorize the detention of the accused. A limited role has to be performed by the Judicial Magistrate to whom the accused has been forwarded, viz., to authorize his detention. This is anterior to Section 190 Cr.P.C. which confers power upon a Magistrate to take cognizance of an offence. Therefore, an order remanding an accused to judicial custody does not amount to taking cognizance of an offence. In such circumstances Section 196(1-A) Cr.P.C. can have no application at all and the High Court clearly erred in quashing the proceedings on the ground that previous sanction of the Central Government or of the State Government or of the District Magistrate had not been obtained. It is important to note that on the view taken by the High Court, no person accused of an offence, which is of the nature which requires previous sanction of a specified authority before taking of cognizance by the Court, can ever be arrested nor such an offence can be investigated by the police. The specified authority empowered to grant sanction does so after applying his mind to the material collected during the course of investigation. There is no occasion for grant of sanction soon after the FIR is lodged nor such a power can be exercised before completion of investigation and collection of evidence. Therefore, the whole premise on the basis of which the proceedings have been quashed by the High Court is wholly erroneous in law and is liable to be set aside. There is another aspect of the matter which deserves notice. The FIR in the case was lodged on 15.1.2005 and the petition under Section 482 Cr.P.C. was filed within 12 days on 27.1.2005 when the investigation had just commenced. The petition was allowed by the High Court on 23.2.2005 when the investigation was still under progress. No report as contemplated by Section 173 Cr.P.C. had been submitted by the incharge of the police station concerned to the Magistrate empowered to take cognizance of the offence. Section 482 Cr.P.C. saves inherent powers of the High Court and such a power can be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This power can be exercised to quash the criminal proceedings pending in any Court but the power cannot be exercised to interfere with the statutory power of the police to conduct investigation in a cognizable offence. Thus the legal position is absolutely clear and also settled by judicial authorities that the Court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the First Information Report till the submission of the report by the officer in charge of police station in court under Section 173(2) Cr.P.C., this field being exclusively reserved for the investigating agency.


15 Mithilesh Kumar Singh

Vs. State of Rajasthan

Decided On: 11.12.201415

Facts- The deceased and her sister were admitted to the college as fresher’s is not in dispute. That she sustained injuries because of a fall from the fourth floor of the college hostel where she was staying with her sister is also not in dispute. That she was moved first to Dulet hospital and later to Sawai Man Singh hospital is also a fact not in dispute. That three days after her fall from the building she passed away is also admitted. What called for a fair and proper investigation was whether she fell because of ragging by the seniors as alleged by the Petitioner or she jumped to commit suicide. The case of the Respondents which includes the state of Rajasthan, the police and the college where she was studying, appears to be that she committed suicide because of an unwanted pregnancy which she was carrying. Reliance in support of that version is placed upon the medical record of the hospital, which appears to suggest that (a) she was 14 weeks pregnant and, (b) the pregnancy was aborted within 24 hours of her death. The record also suggests that the Petitioner had declined to consent to the removal of the foetus from the womb of the deceased despite being counseled about the consequences that would follow, should that procedure be not followed. From the medical record it appears that no removal of fetus was conducted by the doctors for want of consent by the father of the deceased. What is alleged is that the post mortem report does not establish in clear terms the presence of a pregnancy or a 14 week old foetus. This according to the Petitioner belies the story that the deceased was pregnant which could give her a possible reason to commit suicide. The Petitioner’s case also is that a complaint about harassment by the ragging had been made to the college authorities who did not act in the matter. The Petitioner alleges that the deceased had remained unattended on the ground after the fall for about half an hour because of the negligence of the college authorities. There is also an allegation that although the deceased had sustained serious injuries which eventually proved fatal no complaint or report was lodged by the college authorities with the police. No statement or dying declaration of the deceased was recorded during the time she was in the hospital even though she was conscious and oriented. The medical record has been, according to the Petitioner, fabricated as the college is owned and run by influential people in the state of Rajasthan, apart from the fact that a senior

15. 2015 (1) RCR (Criminal) 437.


doctor in the hospital is related to one of the Respondents. There are also allegations of the college authorities having pressurized the younger sister of the deceased not to disclose the true facts to anyone for otherwise she will face consequences. All told the Petitioner is totally dissatisfied and disillusioned with the investigation conducted by the State Police. That is why he prays for a fair and proper investigation into the episode to bring the truth to light so that justice is done not only at the stage of investigation but even at the trial which depends so much on the fairness of the investigation. The court Held that - Such being the importance of fair and proper investigation, this Court has in numerous cases arising out of several distinctly different fact situations exercised its power of transferring investigation from the State/jurisdictional police to the Central Bureau of Investigation under Delhi Police Establishment Act. There was mercifully no challenge to the power of this Court to direct such a transfer and in my opinion rightly so as the question whether this Court has the jurisdiction to direct transfer stands authoritatively settled by the Constitution bench of this Court in State of West Bengal and Ors. v. Committee for protection of Democratic Rights, West Bengal and Ors.: (2010) 3 SCC 571. Even so the availability of power and its exercise are two distinct matters. This Court does not direct transfer of investigation just for the asking nor is transfer directed only to satisfy the ego or vindicate the prestige of a party interested in such investigation. The decision whether transfer should or should not be ordered rests on the Court’s satisfaction whether the facts and circumstances of a given case demand such an order. No hard and fast rule has been or can possibly be prescribed for universal application to all cases. Each case will obviously depend upon its own facts. What is important is that the Court while exercising its jurisdiction to direct transfer remains sensitive to the principle that transfers are not ordered just because a party seeks to lead the investigator to a given conclusion. It is only when there is a reasonable apprehension about justice becoming a victim because of shabby or partisan investigation that the Court may step in and exercise its extra ordinary powers. The sensibility of the victims of the crime or their next of kin is not wholly irrelevant in such situations. After all transfer of investigation to an outside agency does not imply that the transferee agency will necessarily much less falsely implicate anyone in the commission of the crime. That is particularly so when transfer is ordered to an outside agency perceived to be independent of influences, pressures and pulls that are common place when State police investigates matters of some significance. The confidence of the party seeking transfer in the outside agency in such cases itself rests on the independence of that agency from such or similar other considerations. It follows that unless the Court sees any design behind the prayer for transfer,


the same must be seen as an attempt only to ensure that the truth is discovered. The hallmark of a transfer is the perceived independence of the transferee more than any other consideration. Discovery of truth is the ultimate purpose of any investigation and who can do it better than an agency that is independent.

16 Anju Chaudhary

Vs. State of U.P. and Anr.

Decided On: 13.12.201216

Facts- On 16th November, 2007, one Parvez Parwaz, Respondent No. 2, claiming himself to be a social activist filed an application Under Section 156(3) in the Court of the Chief Judicial Magistrate, Gorakhpur. According to this complaint, one Mahant Aditya Nath Yogi, Member of Parliament and leader of an unregistered organization called the Hindu Yuva Vahini had been spreading hatred amongst Hindus and Muslims for a number of years and has also been causing fear amongst the Muslim community and harming them, demolishing the properties of Muslims and carrying out other acts of harassment. On 27thJanuary, 2007 when the complainant, Respondent No. 2 herein, was returning home from the Railway Station, Gorakhpur at about 8.00 p.m., Yogi Aditya Nath, Member of Parliament, Dr. Radha Mohan Dass Aggarwal, Member of the Legislative Assembly, Dr. Y.D. Singh, Member of the Legislative Council and Anju Chowdhary, Mayor of Gorakhpur, the Minister of State and BJP Leader Shiv Pratap Shukla, other office bearers and thousands of activists of Hindu Yuva Vahini, BJP and Vyapar Mandal, Gorakhpur, as well as various other persons whom the Petitioner does not know by name but can recognise, were holding a meeting as “Warning Meeting”. The meeting which was addressed by Yogi Aditya Nath who was saying that if blood of one Hindu be shed then they will not register any FIR with the administration against the bloodshed of one Hindu in the times to come, instead they will get ten persons (Muslims) killed. If damage is done to the shops and properties of Hindus, they would indulge in similar activities towards the Muslims. Anything can be done to save the glory of Hindus and all should prepare for a fight. The court held that- Anyone acquainted with the day-to-day working of the criminal courts will be alive to the practical necessity of the police possessing the power to make further investigation and submit a supplemental report. It

16. 2013 CriLJ 776.


is in the interests of both the prosecution and the defence that the police should have such power. It is easy to visualize a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused. When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate? After all, the investigating agency has greater resources at its command than a private individual. Similarly, where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. What action a Magistrate is to take in accordance with the provisions of the Code of Criminal Procedure in such situations is a matter best left to the discretion of the Magistrate. The criticism that a further investigation by the police would trench upon the proceeding before the court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light. As observed by us earlier, there was no provision in the Code of Criminal Procedure, 1898 which, expressly or by necessary implication, barred the right of the police to further investigate after cognizance of the case had been


taken by the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts. In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the court by seeking its formal permission to make further investigation.

Chapter 4

POLICE INTERROGATION

It is often the case when the police arrest a person in suspicion of a crime they are unable to complete the investigation in 24 hours. At this juncture when they require the accused or suspect to be kept away from society at large for the protection of society, of the accused or for the purpose of ensuring his availability for investigation, they may produce him before a magistrate, who may allow for the suspect to be held in the custody of the police or the judiciary. The provisions for holding a person in custody for the purpose of furthering investigation, in India are governed by Section 167 of the Code of Criminal Procedure. Section 167 of the Code allows that a person may be held in the custody of the police for a period of 15 days on the orders of a magistrate. A judicial magistrate may remand a person to any form of custody extending up to 15 days and an executive magistrate may order for a period of custody extending up to 7 days. A person may be held in the custody of the police or in judicial custody. Police custody may extend only up to a period of 15 days from the date custody begins but judicial custody may extend to a period of 90 days for a crime which entails a punishment of death, life imprisonment or period of imprisonment exceeding 10 years and 60 days for all other crimes if the magistrate is convinced that sufficient reasons exists, following which the accused or suspect must be released on bail. The magistrate has the authority to remand the person into judicial or police custody. The detaining authority may be changed during the pendency of the detention, provided that the total time period does not extend 15 days. If a person is transferred from police to judicial custody the number of days served in police custody is deducted from the total time remanded to judicial custody. The difference between judicial and police custody apart from the difference in custodian authority, is that under police custody, the suspect may be interrogated by the police but under judicial custody interrogation is not permitted except in exceptional circumstances, police custody starts when a

Police Interrogation 77

person is taken into custody by the police and his rights are read out to him along with the explanation for reasons for custody but judicial custody starts when a judge orders for judicial custody. The first thing that happens to a suspect on arrest is that he is taken into police custody, following which he is taken before a magistrate and he may either be remanded to judicial custody or be sent back into police custody. He may also gain temporary relief by posting bail. RIGHTS OF ACCUSED The rights of the accused begin from the time of his arrest. The Constitution of India under Article 22 provides for the protection of the arrested person to the extent that he has a right to be informed of the reason for arrest and he must be produced before the nearest magistrate within a period of 24 hours. Article 22 (1) also provides that he shall be entitled to consult and to be defended by a legal practitioner of his choice[i]. Section 50, Cr. P.C. which is a corollary to Article 22, Clause (1) and (5) of the Constitution of India, enacts, that the persons arrested should be informed of the ground of arrest, and of right to bail. After the legal arrest of a person, his rights are protected through the time period for which he may be held in custody. For the custody to be a legal, a person may not be held in custody for more than 15 days. A magistrate must be convinced that that there are exceptional circumstances present to extend this custody for a maximum of 60-90 days depending in the nature of the crime being investigated. A cautious reading of S.167(1) of the code of criminal procedure makes it clear that the officer in charge of the police station or the investigating officer (if he is not below the rank of sub-inspector) can ask for remand only when there are grounds to believe that the accusation or information is well founded and it appears that the investigation cannot be completed within the period of twenty-four hours as specified under Section 57. Hence, Magistrate’s power to give remand is not mechanical and adequate grounds must subsist if Magistrate wants to exercise his power of remand. The same was held in Raj Pal Singh v. State of U.P[ii] the case also said that the remand order sheet need not look like, a judgment delivered after full trial but application of main must be evident. It is the right of the accused that he is brought before a magistrate within 24 hours of arrest, excluding the time taken in transportation from the place of custody to the magistrate. If no judicial magistrate is immediately available then he may be taken before an executive magistrate who can remand him to custody for a maximum of 7 days following which he must be taken before a judicial magistrate. In Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J.Kulkarni [iii] the question regarding arrest &


detention in custody was dealt with it was held that the magistrate under S.167(2) can authorise the detention of the accused in such custody as he thinks fit but it should not exceed fifteen days in the whole. Therefore the custody initially should not exceed fifteen days in the whole. The custody can be police custody or judicial custody as the magistrate thinks fit. The words “such custody” and “for a term not exceeding fifteen days in whole” are very significant. On a combined reading of S.167(2) and (2A) it emerges that the Judicial Magistrate to whom the Executive Magistrate has forwarded the arrested accused can order detention in such custody namely police custody} or judicial custody under S.167(2) for the rest of the first fifteen days after deducting the period of detention order by the Executive Magistrate. The detention thereafter could only be in judicial custody. There are also specific rights during arrest and custody, governing the right of medically unfit prisoners. These are that women accused of any offence, if arrested so soon after child birth that they cannot at once be taken before the Magistrate without personal suffering and risk to health should not ordinarily be removed until they are in a proper condition to travel. They should be allowed to remain under proper charge in the care of their relations, or be sent to the nearest dispensary, and suffered to remain there until the officer in charge of the dispensary certifies that they are sufficiently recovered. In such cases, sanction must be obtained by the police from the nearest Magistrate for their detention at their homes, or in the dispensary, beyond the period of 24 hours as allowed by section 57 of the code of criminal procedure 1973. The same procedure should be followed in the case of other accused persons who are too ill to travel. The other right that is accorded to the accused is a derivative of the principles of natural justice which would dictate that the police proceed as swiftly as possible with the investigation so as to cause minimum suffering to all parties concerned. In the case of Elumalai v. State of Tamil Nadu[iv] the court has held that “For a speedy trial, the prosecution agencies also must take a prompt step in completing their investigations and filing their final reports as contemplated under the Code as expeditiously as possible. In case the investigating officer fails to take speedy action in a case registered against any person arrested under S. 41(1), S. 151(1) or any other penal provision of the law, and keeps it in cold storage, forgetting his obligation to the society and in contravention of the principles of natural justice and allow, by his conduct, the arrested persons to be kept behind the bars, for months together and if the Courts without being conscious of the mandatory provisions of S. 167(2), mechanically authorise repeated detention and also do not show any diligence in completing the trial of the case speedily, the


result would be that prisoners, especially those coming from the society of have nots, have to suffer untold physical and mental agony and spend their lives in the jail without having any ray of hope of their release.” REMEDIES If the arrest is invalid on account of breach of procedure or violation of any other right or if the custody is not passed within the framework of the law by a competent magistrate who has jurisdiction over the issue, the person so detained can file a writ of habeas corpus under Article 32 or 226 of the Constitution of India. However it must be noted that a writ does not lie against a legal custody, no matter what rights may have been violated before the lawful custody. In Kami Sanyal v Dist. Magistrate[v], Darjeeling the Supreme Court observed that “while a person is committed to jail custody by a competent Court by an order, which prima facie does not appear to be without jurisdiction or wholly illegal, a writ of habeas corpus in respect of that person cannot be granted”. It has been held that the crucial date when the legality of the remand is to be looked into is the date when the petition comes up for hearing, in Kana v. State of Rajasthan[vi] the Jaipur Bench of the Rajasthan High Court, referring to the Full Bench decision of the Patna High Court, in Babunandan Mallah v. State[vii] held that “if the detention of the accused is legal, when the bail application is preferred, his previous illegal detention should not be considered.” ANALYSIS AND CONCLUSION Like in the case of all law enforcement in India, the right of the underprivileged always becomes harder to protect. The provisions of section 167b Cr.P.C extends to allowing the person bail if there isn’t sufficient cause to hold him in custody. The section, however also explicitly states that if the accused is unable to furnish bail then he continues to remain in custody. It was observed in Laxmi Narain Gupta v. State[viii] that “Along with the present petition at least another 20 cases have been listed, where the accused are in judicial custody, merely because they are poor. In each of those cases, directions have been passed by the Courts concerned, for admitting them to bail. They are in judicial customary because they have not been able to arrange a surety while the orders for their judicial remands are being passed in a routine manner.” This drawback also persists when the accused is unaware of his rights. While this section has been made clear by the statute, the same cannot be said for provisions relating to the inability of the police to get a person into custody due to medical or other reasons. The law is not clear if the 15 day limit must be suspended during the period of inability to hold in physical custody.


It becomes clear that the while the law provides for safeguards against abuse, it need to be amended to remove all obscurities and contradiction. The magistrates must also see to the background of the victims before passing orders. Section 167 must also be expanded so that remedies must be available for past illegal detentions or arrest even if in the present case custody is legal. Lastly, the executive must also play a role by ensuring that more and more people are aware of their right.1

1 Appellants: Smt. Selvi and Ors.

Vs. Respondent: State of Karnataka

Decided On: 05.05.20102

Facts- The legal questions in this batch of criminal appeals relate to the involuntary administration of certain scientific techniques, namely narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) test for the purpose of improving investigation efforts in criminal cases. This issue has received considerable attention since it involves tensions between the desirability of efficient investigation and the preservation of individual liberties. Ordinarily the judicial task is that of evaluating the rival contentions in order to arrive at a sound conclusion. However, the present case is not an ordinary dispute between private parties. It raises pertinent questions about the meaning and scope of fundamental rights which are available to all citizens. Therefore, we must examine the implications of permitting the use of the impugned techniques in a variety of settings. 2. Objections have been raised in respect of instances where individuals who are the accused, suspects or witnesses in an investigation have been subjected to these tests without their consent. Such measures have been defended by citing the importance of extracting information which could help the investigating agencies to prevent criminal activities in the future as well as in circumstances where it is difficult to gather evidence through ordinary means. In some of the impugned judgments, reliance has been placed on certain provisions of the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 to refer back to the responsibilities placed on citizens to fully co-operate with investigation agencies. It has also been urged that administering these techniques does not cause any bodily harm and that the extracted

1. https://www.lawctopus.com/academike/laws-of-custody-in-india-an-analysis-of-section-167-

of-the-code-of-criminal-procedure/ 2. AIR 2010 SC 1974


information will be used only for strengthening investigation efforts and will not be admitted as evidence during the trial stage. The assertion is that improvements in fact-finding during the investigation stage will consequently help to increase the rate of prosecution as well as the rate of acquittal. Yet another line of reasoning is that these scientific techniques are a softer alternative to the regrettable and allegedly widespread use of `third degree methods’ by investigators. The court held that- In a concurring opinion, Beetz., J. drew a comparison between statements made during hypnosis and those made under the influence of a sodium-amytal injection. It was observed, at Para. 91: 91. Finally, voluntariness is incompatible not only with promises and threats but actual violence. Had Horvath made a statement while under the influence of an amytal injection administered without his consent, the statement would have been inadmissible because of the assault, and presumably because also of the effect of the injection on his mind. There was no physical violence in the case at bar. There is not even any evidence of bodily contact between Horvath and Sergeant Proke, but through the use of an interrogation technique involving certain physical elements such as a hypnotic quality of voice and manner, a police officer has gained unconsented access to what in a human being is of the utmost privacy, the privacy of his own mind. As I have already indicated, it is my view that this was a form of violence or intrusion of a moral or mental nature, more subtle than visible violence but not less efficient in the result than an amytal injection administered by force. 65. In this regard, the following observations are instructive for the deciding the questions before us, at Paras. 117,118: 117. It would appear that hypnosis and narcoanalysis are used on a consensual basis by certain police forces as well as by the defence, and it has been argued that they can serve useful purposes. 118. I refrain from commenting on such practices, short of noting that even the consensual use of hypnosis and narcoanalysis for evidentiary purposes may present problems. Under normal police interrogation, a suspect has the opportunity to renew or deny his consent to answer each question, which is no longer the case once he is, although by consent, in a state of hypnosis or under the influence of a `truth serum’. (internal citation omitted) These safeguards were designed to mitigate the disadvantages faced by a suspect in a custodial environment. This was done in recognition of the fact that methods involving deception and psychological pressure were routinely used and often encouraged in police interrogations. Emphasis was placed on


the ability of the person being questioned to fully comprehend and understand the content of the stipulated warning. It was held, Id. at pp. 457-458: In these cases, we might not find the defendant’s statements to have been involuntary in traditional terms. Our concern for adequate safeguards to protect the precious Fifth Amendment right is, of course, not lessened in the slightest. In each of the cases, the defendant was thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures.... It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carried its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity. [Professor Sutherland, `Crime and Confessions’, 79Harvard Law Review 21, 37 (1965)] The current practice of incommunicado interrogation is at odds with one of our Nation’s most cherished principles - that the individual may not be compelled to incriminate himself. Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice. The opinion also explained the significance of having a counsel present during a custodial interrogation. It was noted, Id. at pp. 469-470: The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. Our aim is to assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process. A once-stated warning, delivered by those who will conduct the interrogation, cannot itself suffice to that end among those who most require knowledge of their rights. A mere warning given by the interrogators is not alone sufficient to accomplish that end. Prosecutors themselves claim that the admonishment of the right to remain silent without more `will benefit only the recidivist and the professional.’ [Brief for theNational District Attorneys Association as amicus curiae, p. 14] Even preliminary advice given to the accused by his own attorney can be swiftly overcome by the secret interrogation process. [Cited from Escobedo v. State of Illinois 378 U.S. 478, 485 ...] Thus, the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires. The majority decision in Miranda (supra.) was not a sudden development in U.S. constitutional law. The scope of the privilege against self-incrimination


had been progressively expanded in several prior decisions. The notable feature was the recognition of the interrelationship between the Fifth Amendment and the Fourteenth Amendment’s guarantee that the government must observe the `due process of law’ as well as the Fourth Amendment’s protection against `unreasonable search and seizure’. While it is not necessary for us to survey these decisions, it will suffice to say that after Miranda (supra.), administering a warning about a person’s right to silence during custodial interrogations as well as obtaining a voluntary waiver of the prescribed rights has become a ubiquitous feature in the U.S. criminal justice system. In the absence of such a warning and voluntary waiver, there is a presumption of compulsion with regard to the custodial statements, thereby rendering them inadmissible as evidence. The position in India is different since there is no automatic presumption of compulsion in respect of custodial statements. However, if the fact of compulsion is proved then the resulting statements are rendered inadmissible as evidence. To apply their knowledge and skills in order to assist in the interrogation of prisoners and detainees in a manner that may adversely affect the physical or mental health or condition of such prisoners or detainees and which is not in accordance with the relevant international instruments; 156. Being a court of law, we do not have the expertise to mould the specifics of professional ethics for the medical profession. Furthermore, the involvement of doctors in the course of investigation in criminal cases has long been recognised as an exception to the physician-patient privilege. In the Indian context, the statutory provisions for directing a medical examination are an example of the same. Fields such as forensic toxicology have become important in criminal- justice systems all over the world and doctors are frequently called on to examine bodily substances such as samples of blood, hair, semen, saliva, sweat, sputum and fingernail clippings as well as marks, wounds and other physical characteristics. A reasonable limitation on the forensic uses of medical expertise is the fact that testimonial acts such as the results of a psychiatric examination cannot be used as evidence without the subject’s informed consent. Results of impugned tests should be treated as `personal testimony’ 157. We now return to the operative question of whether the results obtained through polygraph examination and the BEAP test should be treated as testimonial responses. Ordinarily evidence is classified into three broad categories, namely oral testimony, documents and material evidence. The protective scope of Article 20(3) read with Section 161(2) , CrPC guards against the compulsory extraction of oral testimony, even at the stage of investigation. With respect to the production of documents, the applicability


of Article 20(3) is decided by the trial judge but parties are obliged to produce documents in the first place. However, the compulsory extraction of material (or physical) evidence lies outside the protective scope of Article 20(3) . Furthermore, even testimony in oral or written form can be required under compulsion if it is to be used for the purpose of identification or comparison with materials and information that is already in the possession of investigators. 158. We have already stated that the narcoanalysis test includes substantial reliance on verbal statements by the test subject and hence its involuntary administration offends the `right against self-incrimination’. The crucial test laid down in Kathi Kalu Oghad, (supra.) is that of `imparting knowledge in respect of relevant fact by means of oral statements or statements in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation’ [Id. at p. 30]. The difficulty arises since the majority opinion in that case appears to confine the understanding of `personal testimony’ to the conveyance of personal knowledge through oral statements or statements in writing. The results obtained from polygraph examination or a BEAP test are not in the nature of oral or written statements. Instead, inferences are drawn from the measurement of physiological responses recorded during the performance of these tests. It could also be argued that tests such as polygraph examination and the BEAP test do not involve a `positive volitional act’ on part of the test subject and hence their results should not be treated as testimony. However, this does not entail that the results of these two tests should be likened to physical evidence and thereby excluded from the protective scope of Article 20(3). We must refer back to the substance of the decision in Kathi Kalu Oghad (supra.) which equated a testimonial act with the imparting of knowledge by a person who has personal knowledge of the facts that are in issue. It has been recognised in other decisions that such personal knowledge about relevant facts can also be communicated through means other than oral or written statements. For example in M.P. Sharma’s case (supra.), it was noted that “...evidence can be furnished through the lips or by production of a thing or of a document or in other modes” [Id. at p. 1087]. Furthermore, common sense dictates that certain communicative gestures such as pointing or nodding can also convey personal knowledge about a relevant fact, without offering a verbal response. It is quite foreseeable that such a communicative gesture may by itself expose a person to `criminal charges or penalties’ or furnish a link in the chain of evidence needed for prosecution. 159. We must also highlight that there is nothing to show that the learned judges in Kathi Kalu Oghad(supra.) had contemplated the impugned techniques while discussing the scope of the phrase `to be a witness’ for the


purpose of Article 20(3). At that time, the transmission of knowledge through means other than speech or writing was not something that could have been easily conceived of. Techniques such as polygraph examination were fairly obscure and were the subject of experimentation in some Western nations while the BEAP technique was developed several years later. Just as the interpretation of statutes has to be often re-examined in light of scientific advancements, we should also be willing to re-examine judicial observations with a progressive lens. An explicit reference to the Lie-Detector tests was of course made by the U.S. Supreme Court in the Schmerber decision, 384 US 757 (1966), wherein Brennan, J. had observed, at p. 764: To compel a person to submit to testing in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment. In these cases, we might not find the defendant’s statements to have been involuntary in traditional terms. Our concern for adequate safeguards to protect the precious Fifth Amendment right is, of course, not lessened in the slightest. In each of the cases, the defendant was thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures.... It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carried its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity. [Professor Sutherland, `Crime and Confessions’, 79Harvard Law Review 21, 37 (1965)] The current practice of incommunicado interrogation is at odds with one of our Nation’s most cherished principles - that the individual may not be compelled to incriminate himself. Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.

2 Appellants: Aloke Nath Dutta and Ors.

Vs. Respondent: State of West Bengal

Decided On: 12.12.20063

Facts- Premise No. 2C, a three storied building situate at Beadon Street situated in the town of Kolkata, belonged to one Jagannath Dutta. He 3. (2007) 12 SCC 230


transferred the said property in favour of his wife Arunamoyee Dutta on certain terms and conditions wherewith we are not concerned. She had four sons and one daughter. During her life time, two of the sons, namely, Biswanath Dutta (deceased) and Aloke Nath Dutta, (appellant), were residing with her. Biswanath used to stay at the second floor with some tenants occupying some portions thereof; whereas Aloke Nath Dutta used to reside on the first floor. Her daughter Anuradha Das was married and was residing at Jadavpore. Two other sons, namely, Amar Nath Dutta (PW-4) and Samar Nath Dutta (PW-3) were residing in the towns of Chandannagore and Bararast respectively. Arunamoyee Dutta died intestate in April, 1993. Aloke Nath was working with Kolkata Police, whereas Biswanath was employed in the United Bank of India. Biswanath was a bachelor, whereas Aloke Nath is married. Mamata one of the appellants herein, is Aloke Nath’s wife. Sister of Mamata and her husband Shib Sankar Roy @ Gobinda @ Babu Roy were also residing on the first floor. Aloke Nath had many vices. He was a spendthrift. He was a womanizer and spent a lot of money in gambling and horse racing etc. He intended to sell the said house property, wherefore he entered into agreements for sale with one Nandlal Singh as also with one Arunmoy Bose. Arunmoy Bose advanced a sum of Rs. 65,000/- to him. Nandlal Singh (PW-15) also had advanced various sums of money to Aloke Nath from time to time. He on the advice of his advocate Bikash Pal (PW-14) refused to advance any further sum till the time he was put in possession of the room of the second floor and the Puja Room; which was promised to be delivered on 23.01.1994. 3. Prosecution story is that the deceased was not in favour of sale of the said property. The transactions with regard to the sale of the said property, in favour of the said Nandlal Singh and Arunmoy Bose, however, were being conducted, as if Biswanath was a party thereto. Appellant Mrinal Dutta is said to have been impersonating Biswanath and singed several documents in his name. Aloke Nath absented himself from duty from 7.00 p.m. on 22.01.1994 to 28.01.1994, as disclosed by his colleagues Sahadev Mondal (PW-33), Ananta Kumar Thanedar (PW-34), and Biman Ghosh Dastidar (PW-35). The court held that- We hold that Section 161 enables the police to examine the accused during investigation. The prohibitive sweep of Article 20(3) goes back to the stage of police interrogation - not, as contended, commencing in court only. In our judgment, the provisions of Article 20(3) and Section 161(1) substantially cover the same area, so far as police investigations are concerned. The ban on self-accusation and the right to silence, while one investigation or trial is under way, goes beyond that case


and protects the accused in regard to other offences pending or imminent, which may deter him from voluntary disclosure of criminatory matter. To withdraw from what has been said previously needs to be interpreted in the vein of right to remain silent as an extension of this civil liberty. The quality or merit of confession, in no uncertain terms, is in voluntary narration by the accused. At the same time we are equally in know of the troubled times the judiciary is plagued with. The issue of evidentiary standards is a very delicate one and has a great bearing on the outcome of cases. But be it as it may, basic tenets of criminal law can not be lost sight of. In similar vein the law on retracted confession must be judged in the context of each case. 51. In this regard it is important to consider the retracted confession within the legislative paradigm laid down under Sections 24 to 26 of the Indian Evidence Act and Section 162(1) and Section 164 of the Code of Criminal Procedure, 1973. Also it will be in the fitness of the case to appraise the value of retracted confession for the co-accused under Section 30 of The Indian Evidence Act a little later. 54. In a case, where confession is made in the presence of a Magistrate conforming the requirements of Section 164, if it is retracted at a later stage, the court in our opinion, should probe deeper into the matter. Despite procedural safeguards contained in the said provision, in our opinion, the learned Magistrate should satisfy himself that whether the confession was of voluntary nature. It has to be appreciated that there can be times where despite such procedural safeguards, confessions are made for unknown reasons and in fact made out of fear of police. Judicial confession must be recorded in strict compliance of the provisions of Section 164 of the Code of Criminal Procedure. While doing so, the court shall not go by the black letter of law as contained in the aforementioned provision; but must make further probe so as to satisfy itself that the confession is truly voluntary and had not been by reason of any inducement, threat or torture. The fact that the accused was produced from the police custody is accepted. But it was considered in a routine manner. The learned Magistrate in his evidence could not even state as to whether the appellants had any injury on his person or whether there had been any tainted marks therefore. The courts while applying the law must give due regard to its past experience. The past experience of the courts as also the decisions rendered by the superior courts should be taken as a wholesome guide. We must remind ourselves that despite the fact that procedural safeguards contained in Section 164 of the Cr. P.C. may be satisfied, but the courts must look for truthfulness and voluntariness thereof. It must, however, be remembered that it may be


retracted subsequently. The court must, thus, take adequate precaution. Affirmative indication of external pressure will render the retracted confession nugatory in effect. The court must play a proactive role in unearthing objective evidence forming the backdrop of retraction and later the examination of such evidence of retraction. However in cases where none exists, the court must give the benefit of doubt to the accused. Where there is no objective material available for verifying the conditions in which the confession was retracted, the spirit of Section 24 of the Evidence Act (irrelevance of confession caused by inducement) may be extended to retracted confession. An inverse presumption must be drawn from absence of materials. In a case of retracted confession, the courts while arriving at a finding of guilt would not ordinarily rely solely thereupon and would look forward for corroboration of material particulars. Such corroboration must not be referable in nature. Such corroboration must be independent and conclusive in nature. Does fact of this case make out the case to be one of rarest of rare cases? We are of the opinion that it does not. The manner of commission of offence may be gruesome. Biswanath was killed while he was in deep slumber, but the method applied cannot be said to be cruel. The reason for commission of the murder is greed of money on the part of Aloke Nath which evidently arose out the result of his bad habits. We have no doubt in our mind that he was pushed back to such a situation where he thought that he had no other option but to kill his brother. The prosecution has not brought out any material to show that Aloke Nath had not been maintaining good relation with Biswanath. There might have difference of opinion between the brothers in regard to the question of sale of house, but we have nothing before us to say one way or the other in this behalf. Aloke Nath was in need of money; Biswanath, an employee of a bank and being a bachelor probably did not require the same. He might have other idea e.g. he did not want to loose his place of abode. Aloke Nath had many vices, whereas Biswanath did not have any. But they had been living in the same premises for a long time. Both of them have been looking after their parents. In fact, only it was the other brothers, namely, Amar Nath and Samar Nath had filed a suit against their mother as well as Aloke Nath and Biswanath, apprehending that their mother would bequeath the property in their favour, and, thus, excluding them from inheriting the same.


3 Appellants: Mohammed Ajmal Mohammad Amir Kasab @ Abu

Mujahid Vs.

Respondent: State of Maharashtra AND

Appellants: State of Maharashtra Vs.

Respondent: Fahim Harshad Mohammad Yusuf Ansari and Anr. AND

Appellants: Radhakant Yadav Vs.

Respondent: Union of India (UOI) and Ors. Decided On: 29.08.20124

Facts-The Appellant, Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid (hereinafter referred to as ‘the Appellant’ or as ‘Kasab’), who is a Pakistani national, has earned for himself five death penalties and an equal number of life terms in prison for committing multiple crimes of a horrendous kind in this country. Some of the major charges against him were: conspiracy to wage war against the Government of India; collecting arms with the intention of waging war against the Government of India; waging and abetting the waging of war against the Government of India; commission of terrorist acts; criminal conspiracy to commit murder; criminal conspiracy, common intention and abetment to commit murder; committing murder of a number of persons; attempt to murder with common intention; criminal conspiracy and abetment; abduction for murder; robbery/dacoity with an attempt to cause death or grievous hurt; and causing explosions punishable under the Explosive Substance Act, 1908. He was found guilty of all these charges besides many others and was awarded the death sentence on five counts, life-sentence on five other counts, as well as a number of relatively lighter sentences of imprisonment for the other offences. Apart from the Appellant, two other accused, namely Fahim Ansari and Sabauddin Ahamed, both Indian nationals, were also arraigned before the trial court and indicted on the same charges as the Appellant. The Court Held That-when an individual was taken into custody or otherwise deprived of his freedom by authorities in any significant way and was subjected to questioning, privilege against self-incrimination was

4. AIR 2012 SC 3565


jeopardized - Procedural safeguards must be employed to protect privilege, and unless other fully effective means were adopted to notify person of his right of silence and to assure that exercise of right would be scrupulously honored - Right against self-incrimination under Article 20(3) was fully incorporated in provisions of Code of Criminal Procedure (Sections 161, 162, 163 and 164) and Evidence Act, 1872, as manifestations of enforceable due process, and thus compliance with these statutory provisions was also equal compliance with Constitutional guarantees - However State was under a constitutional obligation to provide free legal services to an indigent Accused not only at stage of trial but also at stage when he was first produced before magistrate as also when he was remanded from time to time - However Appellant’s refusal to accept services of an Indian lawyer and his demand for a lawyer from his country could not be anything but his own independent decision - Demand for a Pakistani lawyer in those circumstances, and especially when Pakistan was denying that Appellant was even a Pakistani citizen, might had been impractical, even foolish, but man certainly did not need any advice from an Indian Court or authority as to his rights under Indian Constitution - He was acting quite independently and, in his mind, he was a “patriotic” Pakistani at war with this country - Appellant asked for a lawyer, apparently convinced by then that no help would come from Pakistan or anywhere else - He was then immediately provided with a set of two lawyers - Thus there was no question of any violation of any of rights of Appellant under Indian Constitution - He was offered services of a lawyer at time of his arrest and at all relevant stages in proceedings - In absence of a lawyer at pre-trial stage was not only as per wishes of Appellant himself, but that this absence also did not cause him any prejudice in trial. Mr. Subramanium also submitted that the Miranda principles that gave the accused the right to silence and an absolute right to counsel at the stage of police interrogation have not been uniformly followed in several other jurisdictions. He pointed out that the Miranda principle has been held to be inapplicable in Australia in a Judgment of the High Court of Australia in Dietrich v. Rule (1992) 177 CLR 292. In this regard, he also referred to the Judgment of the Supreme Court of Canada in R. v. Sinclair (2010) 2 S.C.R. 310. He also referred to a decision of the European Court in Salduz v. Turkey (2009) 49 EHRR 19, and two decisions of the UK Supreme Court in Ambrose v. Harris (Procurator Fiscal, Oban) (Scotland) (2011) UKSC 43 and McGowan, (Procurator Fiscal, Edinburgh) v. B (Scotland)(2011) UKSC 54.


442. Mr. Subramanium also referred to a number of academic articles and papers to contend that, in the United States itself, the Miranda principles have been considerably eroded by later case laws. 443. Next, dealing with the issue of the right to counsel, as claimed on behalf of the Appellant in light of the decision in Nandini Satpathy, Mr. Subramanium pointed out that at least in two cases, namely, Poolpandi v. Superintendent, Central Excise (1992) 3 SCC 259 and Directorate of Revenue Intelligence v. Jugal Kishore Samra (2011) 12 SCC 362, this Court had expressly declined to follow Nandini Satpathy. Miranda and Nandini Satpathy, which draws heavily upon the former, are, of course, referred with approval in D.K. Basu and in Navjot Sandhu, but those decisions were in completely different contexts. In D.K. Basu, the Court was dealing with the use of compulsion during investigation and the need to insulate the accused from any coercive measures. It was in that connection that this Court issued guidelines incorporating the requirements that “the arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation”. Mr. Subramanium submitted that the decision in D.K. Basu has construed Article 22(1) as an enablement and not as a mandatory right. Let us first put aside the Miranda decision that seems to have entered into the discussions of this case as a red herring. The Miranda decision was rendered under a system of law in which an utterance made by a suspect before the police could lead to his conviction and even the imposition of the death penalty. From the Judgment in the Miranda case it further appears that the police would subject the suspect to incommunicado interrogation in a terribly oppressive atmosphere. The interrogator would employ all the intimidation tactics and interrogations skills at his command, not to find out the truth but to somehow crack the suspect and make him ‘confess’ to his guilt. It was in such a situation that the US Supreme Court evolved the Miranda rules, in order to provide necessary protection to the accused against self-accusation and to ensure the voluntary nature of any statement made before the police, and came to hold and direct as under: To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent; that anything he says can be


used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him. a bare reference to the provisions of the Code of Criminal Procedure would show that those provisions are designed to afford complete protection to the accused against self-incrimination. Section 161(2) of the Code of Criminal Procedure disallows incriminating answers to police interrogations. Section 162(1) makes any statements, in any form, made to police officers inadmissible excepting those that may lead to discovery of any fact (vide Section 27 of the Evidence Act) and that may constitute a dying declaration (vide Section 32 of the Evidence Act). Coupled with these provisions of the Code of Criminal Procedure is Section 25 of the Evidence Act that makes any confession by an accused made to a police officer completely inadmissible. Section 163 of the Code of Criminal Procedure prohibits the use of any inducement, threat or promise by a police officer. and then comes Section 164 Code of Criminal Procedure, dealing with the recording of confessions and statements made before a magistrate. Sub-section (1) of Section 164 provides for recording any confession or statement in the course of an investigation, or at any time before the commencement of the inquiry or trial; Sub-section (2) mandates the magistrate to administer the pre-confession caution to the accused and also requires him to be satisfied, as a judicial authority, about the confession being made voluntarily; Sub-section (3) provides one of the most important protections to the accused by stipulating that in case the accused produced before the magistrate declines to make the confession, the magistrate shall not authorize his detention in police custody; Sub-section (4) incorporates the post-confession safeguard and requires the magistrate to make a memorandum at the foot of the confession regarding the caution administered to the accused and a certificate to the effect that the confession as recorded is a full and true account of the statement made. Section 164 of the Code of Criminal Procedure is to be read along with Section 26 of the Evidence Act, which provides that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a magistrate, shall be proved as against such person.


It is thus clear to us that the protection to the accused against any self-incrimination guaranteed by the Constitution is very strongly built into the Indian statutory framework and we see absolutely no reason to draw any help from the Miranda principles for providing protection against self-incrimination to the accused. Here it will be instructive to see how the Miranda decision has been viewed by this Court; in what ways it has been referred to in this Court’s decisions and where this Court has declined to follow the Miranda rules. In later decisions, Nandini Satpathy guidelines and the Miranda rule are referred to, approved and followed in an ancillary way when this Court moved to protect or expand the rights of the accused against investigation by lawless means, but we are not aware of any decision in which the Court might have followed the core of the Nandini Satpathy guidelines or the Miranda rule. The object of the criminal law process is to find out the truth and not to shield the accused from the consequences of his wrongdoing. A defense lawyer has to conduct the trial on the basis of the materials lawfully collected in the course of investigation. The test to judge the Constitutional and legal acceptability of a confession recorded Under Section 164 Code of Criminal Procedure is not whether the accused would have made the statement had he been sufficiently scared by the lawyer regarding the consequences of the confession. The true test is whether or not the confession is voluntary. If a doubt is created regarding the voluntariness of the confession, notwithstanding the safeguards stipulated in Section 164 it has to be trashed; but if a confession is established as voluntary it must be taken into account, not only constitutionally and legally but also morally. We, therefore, have no hesitation in holding that the right to access to legal aid, to consult and to be defended by a legal practitioner, arises when a person arrested in connection with a cognizable offence is first produced before a magistrate. We, accordingly, hold that it is the duty and obligation of the magistrate before whom a person accused of committing a cognizable offence is first produced to make him fully aware that it is his right to consult and be defended by a legal practitioner and, in case he has no means to engage a lawyer of his choice, that one would be provided to him from legal aid at the expense of the State. The right flows from Articles 21 and 22(1) of the Constitution and needs to be strictly enforced. We, accordingly, direct all the magistrates in the country to faithfully discharge the aforesaid duty and obligation and further make it clear that any failure to fully discharge the duty would amount to dereliction in duty and would make the concerned magistrate liable to departmental proceedings.


485. It needs to be clarified here that the right to consult and be defended by a legal practitioner is not to be construed as sanctioning or permitting the presence of a lawyer during police interrogation. According to our system of law, the role of a lawyer is mainly focused on court proceedings. The accused would need a lawyer to resist remand to police or judicial custody and for granting of bail; to clearly explain to him the legal consequences in case he intended to make a confessional statement in terms of Section 164 Code of Criminal Procedure; to represent him when the court examines the chargesheet submitted by the police and decides upon the future course of proceedings and at the stage of the framing of charges; and beyond that, of course, for the trial. It is thus to be seen that the right to access to a lawyer in this country is not based on the Miranda principles, as protection against self-incrimination, for which there are more than adequate safeguards in Indian laws. The right to access to a lawyer is for very Indian reasons; it flows from the provisions of the Constitution and the statutes, and is only intended to ensure that those provisions are faithfully adhered to in practice. 486. At this stage the question arises, what would be the legal consequence of failure to provide legal aid to an indigent who is not in a position, on account of indigence or any other similar reasons, to engage a lawyer of his own choice? Proceeding to the structure of the statement the sequence of events narrated therein and the use of some words that prima facie seem unnatural in his mouth. It needs to be kept in mind that the Appellant was making the statement after being in police custody for several months. The police, in the course of countless sessions of interrogations, would have turned him inside out, and he would have earlier made the very same statements in the same sequence before the police many a times. Under relentless police interrogations, he would have recalled the smallest details of his past life, specially relating to the preparation and training for the attack on Mumbai. (The statements made before the police were not, however, admissible in evidence as being barred by the various provisions of the Code of Criminal Procedure and the Evidence Act, as discussed in detail above.) But when the Appellant went to the magistrate to make his confession, everything would be completely fresh in his mind. He would also have unconsciously picked up those words pointed out by Mr. Ramachandran from his interrogators, and these would have become part of his own vocabulary. We, therefore, find nothing surprising in his uttering words like “Sahzish” or “POK”.


4 Appellants: John Pandian

Vs. Respondent: State Rep. by Inspector of Police, T. Nadu

Decided On: 03.12.20105

Facts- All these appeals are against the conviction of accused persons who were convicted by the trial Court and the appellate Court for offences under Sections 120B,302 read with Section 109, Indian Penal Code (IPC) and Section 302, IPC substantively. Initially, there were as many as 11 accused persons tried for the offence of murder of Vivi @ Vivek @ Vivekanandan. The trial Court convicted the original accused No. 9, Kumar S/o Vellaichami, accused No. 10, Pavunraj @ Pavun s/o Poothiyamuthu and accused No. 11, Prince Kumar @ Prince @ Balan s/o Amalraj for the offence under Sections 302, IPC read with Section 34, IPC. While accused No. 9, Kumar s/o Vellaichami was convicted for the substantive offence the other two accused persons were convicted with the aid of Section 34 IPC. The trial Court acquitted accused No. 3 Subramaniam @ Subbu Kutty s/o Ramasamy Gounder. There was no appeal against his acquittal filed by the State. Venkatraman Krishnan @ Venkatraman @ Thambu, s/o Surya Kumar (accused No. 1), Sivakumar, s/o Maruthachalam (accused No. 2), Ubaiadulla @ Tamil Selvan, s/o Mohammed Yusuf (accused No. 4), Yusuf, s/o Abdullah (accused No. 5), Abdul Kareem @ Kareem, s/o Hanifa (accused No. 6), John Pandian, s/o Benjamin (accused No. 7), Ganesan, s/o Sudalaimuthu (accused No. 8), Kumar, s/o Vellaichami (accused No. 9), Pavunraj @ Pavun, s/o Poothiyamuthu (accused No. 10) and Prince Kumar (accused No. 11) were convicted for offence under Section 120B, IPC. Venkatraman (accused No. 1), Sivakumar (accused No. 2), Ubaiadulla (accused No. 4), Yusuf (accused No. 5), Abdul Kareem (accused No. 6), John Pandian, (accused No. 7) and Ganesan (accused No. 8) were also convicted for offence Under Section 302, IPC read with SectioN 109, IPC. Out of these accused persons, barring accused No. 3, who was acquitted, all the rest filed appeals before the High Court. The appeal filed by original accused No. 8, Ganesan was allowed and he was acquitted. The appeals of the remaining accused persons were dismissed and the conviction and sentences passed against them were confirmed. During the pendency of this appeal, however, Venkatraman (accused No. 1) committed suicide while accused No. 11, Prince Kumar @ Prince died. Thus, in the present appeals, we are left with original accused Nos. 2, 4, 5, 6 and 7 and accused Nos. 9, 10 and 11. For the 5. (2010) 14 SCC 129


sake of convenience, we shall refer to the accused persons from their original accused numbers. This is a pathetic story of a triangle of love having resulted in the gruesome end of the deceased. We shall first start with the gruesome murder of deceased Vivek @ Vivekanandan which took place on 17.8.1993 at about 10.15 a.m. on a busy road called Diwan Bahadur Road in R.S. Puram near Richy Rich restaurant at Coimbatore. The prosecution painted a picture that Vivek and the original accused No. 1 Venkatraman, whose family owned Laxmi Vilas Mills at Coimbatore were studying in the same college. One Sunitha (PW-3) was also studying with them. Venkatraman (accused No. 1) had a crush on Sunitha. However, there was a love affair going on between Sunitha and Vivek which ultimately resulted in the marriage of both of them. In fact, everything should have come to an end with that marriage and they should have been left to live happily forever but unfortunately that was not to be. The prosecution painted a picture that even after their marriage the fatal attraction which Venkatraman (accused No. 1) felt for Sunitha did not end and he remained a close friend of Vivekanandan and Sunitha to the extent that on the earlier day on which the murder took place they had even gone to a movie along with their other friends. It has come by way of prosecution story that Venkatraman (A-1) was trying to be as near to the couple as possible and he had even provided them with a telephone line. He also helped the couple in establishing their house by helping to buy drapery for their newly set up abode. It was also tried to be shown by the prosecution that after the marriage of deceased Vivekanandan with Sunitha there was a brief love affair between accused No. 1, Venkatraman and one Sherry who was a student of an engineering college. Though Venkatraman (accused No. 1) got married to Sherry in a secret manner perhaps after converting her to Hinduism, Sherry did not honour her marriage vows and left the company of Venkatraman (A-1) and went back to Kerala and, thereafter, also got married to one Thomas and left the country to live in Middle East. This added fuel to the fire of love and jealousy in the heart of Venkatraman (A-1). He, therefore, hatched a conspiracy along with the other accused persons to eliminate the deceased Vivekanandan for ever. The court held that- In this country, people are not keen to become the witnesses and avoid the police-interrogation. That should have happened with this witness. Even the other witness Paramasivam (PW-15) also avoided to go to the police or to be available to the police for 15 days. Though the period of 15 days is rather a longish period, that by itself should not be a reason to disbelieve him. The trial and the appellate Courts have been alive to this situation and have considered this aspect. Our attention was invited to the statement made by Ramalingam (PW-16) to the effect that he asserted that the


statements of these two witnesses were also recorded on 17.8.1993, which was not correct. This circumstance was considered by the appellate Court and, in our opinion, rightly. We, therefore, need not go into that aspect. The evidence was severely criticized on the basis that all the three witnesses had contradicted each other. We do not think so. All the three witnesses had given graphic description of the incident. All of them have asserted that first two accused they being Pavunraj @ Pavun (A-10) and Prince Kumar @ Prince (A-11) stopped the deceased and the third accused Kumar Vellaichami (A-9) started severely assaulting the deceased. Insofar as role played by these accused persons is concerned, the evidence of all the three eye-witnesses is in consonance with each other and there does not appear to be any reason to discard their evidence. In our opinion, the trial and the appellate Courts are right in accepting their evidence as truthful. There is not a word of cross-examination on the factum of assault and the manner thereof. Therefore, we are not impressed by the argument of Ms. Mohana that the evidence of these three witnesses should be discarded. We do appreciate the argument that the statement of Paramasivam (PW-15) was recorded after about 15 days, however, his evidence appears to be creditworthy. He was frank enough in admitting that he left the place and never came back for 15 days to run the auto. If he avoided the police for 15 days, there is nothing unusual about it. When we test this fact as against the quality of his evidence, it might be stated that the witness appears to be truthful and was rightly relied upon by the Courts below, ignoring the time taken for recording his statement. Insofar as Ramalingam (PW-16) is concerned, his evidence remained unshaken and like the earlier two witnesses, there was hardly any cross-examination. All the three eye-witnesses have been corroborated by the fact that in the Test Identification Parade, they identified the accused persons. Barring Kumar s/o Vellaichami (A-9) who was not identified by one of the witnesses, namely, Parmasivam (PW-15), two other eye-witnesses have been able to identify all the three accused persons. We have very carefully seen the evidence of Rajsekharan (PW-54), the Magistrate, who conducted the Parade. Rajsekharan (PW-54) has deposed that in the first Identification Parade, only Pavunraj @ Pavun (A-10) and Prince Kumar @ Prince (A-11) were available. He held the first Identification Parade in respect of these two accused persons on 15.9.1993 i.e. within one month of the incident. In that Parade, both the accused were identified twice by all these three witnesses. He had also included the other witnesses who were claimed to be the eye-witnesses by the police. However, it has come that only these three witnesses were able to identify the accused persons Pavunraj @ Pavun (A-10) and Prince Kumar @ Prince (A-11) twice. We are impressed by the fact that even after changing their dresses, when the accused persons again stood for the identification, they


were actually identified by all the three eye-witnesses. The second Test Identification Parade was held on 28.10.1993 as till then Kumar s/o Vellaichami (A-9) had not become available. Barring one witness, namely, Paramasivam (PW-15), both the eye-witnesses Selvaraj (PW-14) and Ramalingam (PW-16) were able to identify Kumar (A-9) twice. We have very closely considered the evidence of this witness. There is absolutely nothing which could be pointed out against the evidence being accepted. In our opinion, the trial and the appellate Courts have rightly accepted the evidence of Test Identification Parade, which has the effect of corroborating the evidence of the three eye-witnesses. It was stated that one of the eye-witnesses have failed to identify Kumar (A-9), but that by itself will not be sufficient to view with suspicion the participation of Kumar (A-9). The other two witnesses Selvaraj (PW-14) and Ramalingam (PW-16) have actually identified him as the assaulter. The evidence of Identification Parade need not be viewed as a weak type of evidence as held in State of Uttar Pradesh v. Boota Singh and Ors. 1979 (1) SCC 31. We do not think that the evidence of these three eye-witnesses suffer from any infirmity.

5 Appellants: OMA @ Omprakash and Anr.

Vs. Respondent: State of Tamil Nadu

Decided On: 11.12.20126

Facts- The Appellants and nine other absconding accused persons entered the house of one Lakshmi (PW 2) at 1 O’ clock in the night of 07.06.1995 with the intention of committing burglary with iron rods in their hands and burgled 17 tolas of gold and Rs. 5,000/- in cash. In that process, it was alleged that they had strangulated Doctor Mohan Kumar, husband of PW 2 with a rope and thereby killed him. It was alleged that the accused assaulted PW 2, her son Sudhakar (PW 5) and other son Sakthivel (PW 6). While escaping, they had also attacked Bormin Varghese (PW 1) with iron rod. FIR Cr. No. 403 of 1995 under Sections 396, 397 Indian Penal Code was registered at 5.30 am on 07.06.1995 at Police Station Walajapet on the statement of one Patrick Varghese recorded by PW 7. Post Mortem of the deceased was conducted at 2.30 p.m. on 07.06.1995. The prosecution could not nab the accused persons for over ten years. A2 was arrested on 26.02.2005 in connection with some other case in Cr. No. 59 of 1996. It is the prosecution case that his finger prints tallied with the ones

6. AIR 2013 SC 825


lifted from the place of occurrence in that other case. Further, it was also stated, as per the investigation, A2 made a disclosure and pursuant to that the iron rod (M.O. 1) used 10 years back was recovered. A1 was arrested on 21.09.2005 by the special team in connection with some other case in Cr. No. 352 of 2004 of Sri Perumbatoor Police Station. An identification parade was conducted so far as A1 is concerned on 20.10.2005 in which PW 10, Karthik an Auto Driver said to have identified A1. Later, the charge-sheet was filed by PW 15 on 23.12.2005 and charges under Sections 395, 396 and 397 Indian Penal Code were framed against the accused persons on 24.03.2006. The prosecution examined 15 witnesses to prove the case against the accused persons. Statements of the accused persons were recorded under Section 313 Code of Criminal Procedure on 17.04.2006. The court held that- . Evidently, the witnesses did not know the accused earlier, hence the accused could be identified only through a test identification parade which was not done in this case, so far as A-2 is concerned. In this connection, we may refer to the judgment of this Court in Mohd. Iqbal M. Shaikh v. State of Maharashtra (1998) 4 SCC 494 wherein this Court held that: If the witness did not know the accused persons by name but could only identify from their appearance then a test identification parade was necessary, so that, the substantive evidence in court about the identification, which is held after fairly a long period could get corroboration from the identification parade. But unfortunately the prosecution did not take any steps in that regard and no test identification parade had been held. This Court in Ravindra Alias Ravi Bansi Gohar v. State of Maharashtra and Ors. (1998) 6 SCC 609 deprecated the practice of showing the photographs for indentifying the culprits and held as follows: The identification parade belongs to the investigation stage and they serve to provide the investigating authority with materials to assure themselves if the investigation is proceeding on the right lines. In other words, it is through these identification parades that the investigating agency is required to ascertain whether the persons whom they suspect to have committed the offence were the real culprits - and not by showing the suspects or their photographs. Such being the purpose of identification parades, the investigating agency, by showing the photographs of the suspects whom they intended to place in the TI parade, made it farcical. If really the investigating agency was satisfied that PWs 2 and 12 did know the Appellants from before and they were in fact amongst the miscreants, the question of holding the TI parade in respect of them for their identification could not have arisen.


In Ravi alias Ravichandran v. State represented by Inspector of Police (2007) 15 SCC 372, this Court held that: A judgment of conviction can be arrived at even if no test identification parade has been held. But when a first information report has been lodged against unknown persons, a test identification parade in terms of Section 9 of the Evidence Act, is held for the purpose of testing the veracity of the witness in regard to his capability of identifying persons who were unknown to him. Further, it is also held that:It was incumbent upon the prosecution to arrange a test identification parade. Such test identification parade was required to be held as early as possible so as to exclude the possibility of the accused being identified either at the police station or at some other place by the witnesses concerned or with reference to the photographs published in the newspaper. A conviction should not be based on a vague identification. A-2, it may be noted, was not named in the FIR, nor any identification parade was conducted to identify him by the witnesses. It is rather impossible to identify the accused person when he is produced for the first time in the court i.e. after ten years since he was unknown to the witnesses. We are of the view that it is a glaring defect which goes to the root of the case since none of the witnesses had properly identified the accused. It is the case of prosecution that one rod was also used for the murder of the deceased persons in this case, but that rod was not recovered. One rod stated to have been recovered at the instance of A2 could not be connected with the crime. PW 5 in his examination-in-chief had stated that the accused had attacked him with a similar rod that was being shown to him which would indicate that the witness could not conclusively connect the rod which was used for committing the crime. Further, the rod was recovered after a period of ten years of the incident and it is highly doubtful, whether it was used for the commission of the offence. Further, the prosecution case is that a rope was used for the strangulation causing death to Dr. Mohan Kumar, but the rope was not recovered. In Dwarkadas Gehanmal v. State of Gujarat (1999) 1 SCC 57, this Court has held that it is for the prosecution to prove that the object recovered has nexus with the crime. This Court in Mustkeem alias Sirajudeen v. State of Rajasthan (2011) 11 SCC 724 held, “what is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution.” This Court held as follows: With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution


to establish a close link between discovery of the material object and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution. In this case, the prosecution could not prove that the rod recovered has any nexus with the crime alleged to have been committed by A-2. We are of the view that the prosecution, therefore, could not establish the guilt of the second accused beyond reasonable doubt. The High Court, therefore, committed a gross error in awarding life sentence to A2.

6 Appellants: Senior Intelligence Officer

Vs. Respondent: Jugal Kishore Samra

Decided On: 05.07.20117

Facts-The facts and circumstances in which this appeal arises need to be noticed first. On July 20, 2006, the officers of the Directorate of Revenue Intelligence (for short “DRI”) Hyderabad, raided the premises of M/s Hy-Gro Chemicals Pharmatek Private Ltd. and found a shortage of 250kgs of Dextropropoxyphene Hydrochloride (DPP HCL). DPP HCL is a manufactured narcotic drug as specified in Government of India’s notification S.O. 826(E), dated November 14, 1985, at Serial No. 87. C.K. Bishnoi (accused No. 1) and P.V. Satyanarayana Raju (accused No. 2), the Managing Director and the Production Manager, respectively, of M/s Hy-Gro Chemicals Pharmatek Private Ltd., admitted that the drug was clandestinely cleared to M/s J. K. Pharma Agencies, New Delhi, of which the Respondent, Jugal Kishore Samra and his brother, Ramesh Kumar Samra (accused No. 3) happen to be the partners. On the next day, i.e., July 21, 2006, a search was carried out at the Cargo Complex of the Indira Gandhi International Airport, New Delhi, and five drums containing DPP HCL were discovered. On examination of the cargo it was found that the contraband was manufactured by M/s Hy-Gro Chemicals Pharmatek Pvt. Ltd. and was sent to M/s J.K. Pharma Agencies by wrongly declaring the consignment as 5-Amino Salicylic Acid. The Directorate of Revenue Intelligence registered a case against C.K. Bishnoi, P.V. Satyanarayana Raju and Ramesh Kumar Samra for the offences punishable under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “NDPS Act”).

7. (2011) 12 SCC 362


The court held that-We hold that Section 161 enables the police to examine the accused during investigation. The prohibitive sweep of Article 20(3) goes back to the stage of police interrogation-not, as contended, commencing in court only. In our judgment, the provisions of Article 20(3) and Section 161(1) substantially cover the same area, so far as police investigations are concerned. The ban on self-accusation and the right to silence, while one investigation or trial is under way, goes beyond that case and protects the accused in regard to other offences pending or imminent, which may deter him from voluntary disclosure of criminatory matter. We are disposed to read ‘compelled testimony’ as evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like-not legal penalty for violation. So, the legal perils following upon refusal to answer, or answer truthfully, cannot be regarded as compulsion within the meaning of Article 20(3). The prospect of prosecution may lead to legal tension in the exercise of a constitutional right, but then, a stance of silence is running a calculated risk. On the other hand, if there is any mode of pressure, subtle or crude, mental or physical, direct or indirect, but sufficiently substantial, applied by the policeman for obtaining information from an accused strongly suggestive of guilt, it becomes ‘compelled testimony’, violative of Article 20(3). 17. It may be mentioned here that in holding, “the prohibitive sweep of Article 20(3) goes back to the stage of police interrogation-not, as contended, commencing in court only” the decision in Nandini Satpathy apparently went against two earlier constitution bench decisions of this Court in Ramesh Chandra Mehta v. State of West Bengal 1969 (2) SCR 461 and Illias v. Collector of Customs, Madras 1969 (2) SCR 613. In Nandini Satpathy, the Court proceeded further, and though the issue neither arose in the facts of the case nor it was one of the issues framed in paragraph 10 of the judgment, proceeded to dwell upon the need for the presence of the advocate at the time of interrogation of a person in connection with a case. In paragraphs 61-65 of the judgment, the Court made the following observations: It may not be sufficient merely to state the rules of jurisprudence in a branch like this. The man who has to work it is the average police head constable in the Indian countryside. The man who has to defend himself with the constitutional shield is the little individual, by and large. The place where these principles have to have play is the unpleasant police station, unused to constitutional nuances and habituated to other strategies. Naturally, practical points which lend themselves to adoption without much sophistication must be indicated if this judgment is to have full social relevance. In this perspective we address ourselves to the further task of concretising guidelines.


7 Appellants: Balasaheb @ Ramesh Laxman Deshmukh

Vs. Respondent: State of Maharashtra and Anr.

Decided On: 07.12.20108

Facts- Bereft of unnecessary details, the facts necessary for determination of the aforesaid question are that informant Charudatta Pawar is alleged to have been assaulted by four persons in a Hotel in the night between 25th and 26th of April, 1996 and on the basis of the report given by him CR No. 102/1996 was registered at Chalisgaon Police Station. During the investigation the Appellant figured as a witness and his statement was recorded under Section 161 of the Code of Criminal Procedure. After investigation Chalisgaon Police Station submitted chargesheet against 4 accused persons named in the first information report on 24.5.1997. The said case, hereinafter referred to as the police case, is pending for trial before Judicial Magistrate, First Class, Chalisgaon. In regard to the same incident which is the subject matter of the trial in the aforesaid Police case, a complaint was filed impleading the Appellant herein besides five other persons as accused. Appellant figures as accused No. 6 in the complaint case and according to the allegation he conspired with other accused in commission of a crime. In this case, hereinafter referred to as the complaint case the Judicial Magistrate took cognizance of the offence and issued process by order dated 2nd February, 1998 against the four accused who were already charge sheeted in the police case and three other accused including the Appellant herein. By an order of the Bombay High Court dated 26thApril, 1999 both the criminal cases i.e. police case and complaint case were directed to be tried and decided simultaneously. The Bombay High Court further directed the Magistrate in session of the trial to conclude the trial within stipulated time. The Appellant filed an application before the learned Magistrate in session of the Police case objecting his examination as witness, inter alia, contending that in view of the Constitutional protection guaranteed under Article 20(3) of the Constitution of India, he cannot be compelled to be a witness in the case as he himself is an accused in relation to the same incident in the complaint case. The learned Magistrate by its order dated 5th September, 2000 allowed the application and observed that the prosecution cannot examine the Appellant as a witness in the Police case. The court held that- We hold that Section 161 enables the police to examine the accused during investigation. The prohibitive sweep of Article 20(3) goes 8. AIR 2011 SC 304


back to the stage of police interrogation -- not, as contended, commencing in court only. In our judgment, the provisions of Article 20(3) and Section 161(1) substantially cover the same area, so far as police investigations are concerned. The ban on self-accusation and the right to silence, while one investigation or trial is under way, goes beyond that case and protects the accused in regard to other offences pending or imminent, which may deter him from voluntary disclosure of criminatory matter. We are disposed to read “compelled testimony” as evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like -- not legal penalty for violation. So, the legal perils following upon refusal to answer, or answer truthfully, cannot be regarded as compulsion within the meaning of Article 20(3). The prospect of prosecution may lead to legal tension in the exercise of a constitutional right, but then, a stance of silence is running a calculated risk. On the other hand, if there is any mode of pressure, subtle or crude, mental or physical, direct or indirect, but sufficiently substantial, applied by the policeman for obtaining information from an accused strongly suggestive of guilt, it becomes “compelled testimony”, violative of Article 20(3). We do not find any substance in this submission of the learned Counsel and the decision relied on is clearly distinguishable. As observed earlier the Appellant is not an accused in the Police case and in fact a witness whose statement was recorded during the course of investigation under Section 161 of the Code of Criminal Procedure. In the Police case he utmost can be asked to support the case of the prosecution but no question intended to incriminate him can be asked and in case it is done the protection under Article 20(3) of the Constitution shall spring into action. What question shall be put to this Appellant when he appears as a witness is a matter of guess and on that basis he does not deserve the blanket protection under Article 20(3) of the Constitution. Even at the cost of the repetition we may observe that in the Police case when he appears and asked to answer question, the answer whereof tends to incriminate him, he can refuse to answer the same pleading protection under Article 20(3) of the Constitution. In such eventuality the Court would decide the same. Therefore, at this stage the blanket protection sought by the Appellant is not fit to be granted. As regards the authority of this Court in the case of Nandini Satpathy (supra) the same has no bearing in the facts and circumstances of this case. There the question was as to whether the protection under Article 20(3) of the Constitution shall apply at the stage of Police interrogation and in answer thereto this Court held that it shall go back to the stage of Police interrogation and not in Court only


8 Appellants: Ramesh Laxman Deshmukh


Decided On: 07.12.20109

Facts- Bereft of unnecessary details, the facts necessary for determination of the aforesaid question are that informant Charudatta Pawar is alleged to have been assaulted by four persons in a Hotel in the night between 25th and 26th of April, 1996 and on the basis of the report given by him CR No. 102/1996 was registered at Chalisgaon Police Station. During the investigation the Appellant figured as a witness and his statement was recorded under Section 161 of the Code of Criminal Procedure. After investigation Chalisgaon Police Station submitted charge-sheet against 4 accused persons named in the first information report on 24.5.1997. The said case, hereinafter referred to as the police case, is pending for trial before Judicial Magistrate, First Class, Chalisgaon. In regard to the same incident which is the subject matter of the trial in the aforesaid Police case, a complaint was filed impleading the Appellant herein besides five other persons as accused. Appellant figures as accused No. 6 in the complaint case and according to the allegation he conspired with other accused in commission of a crime. In this case, hereinafter referred to as the complaint case the Judicial Magistrate took cognizance of the offence and issued process by order dated 2nd February, 1998 against the four accused who were already charge-sheeted in the police case and three other accused including the Appellant herein. By an order of the Bombay High Court dated 26th April, 1999 both the criminal cases i.e. police case and complaint case were directed to be tried and decided simultaneously. The Bombay High Court further directed the Magistrate in session of the trial to conclude the trial within stipulated time. The Appellant filed an application before the learned Magistrate in session of the Police case objecting his examination as witness, inter alia, contending that in view of the Constitutional protection guaranteed under Article 20(3) of the Constitution of India, he cannot be compelled to be a witness in the case as he himself is an accused in relation to the same incident in the complaint case. The learned Magistrate by its order dated 5th September, 2000 allowed the application and observed that the prosecution cannot examine the Appellant as a witness in the Police case. The State of Maharashtra aggrieved by the aforesaid order filed Criminal Revision Application No. 268 of 2000 before the Bombay High Court which by its order dated 27th April, 2001 9. RLW 2011 (1) SC 955


allowed the application and set aside the order of the learned Magistrate, inter alia, observing that no such blanket protection can be given to the Appellant. The court held that- Section 161 enables the police to examine the accused during investigation. The prohibitive sweep of Article 20(3) goes back to the stage ofpolice interrogation -- not, as contended, commencing in court only. In our judgment, the provisions of Article 20(3) and Section 161(1) substantially cover the same area, so far as police investigations are concerned. The ban on self-accusation and the fight to silence, while one investigation or trial is under way, goes beyond that case and protects the accused in regard to other offences pending or imminent, which may deter him from voluntary disclosure of criminatory matter. We are disposed to read “compelled testimony” as evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like -- not legal penalty for violation. So, the legal perils following upon refusal to answer, or answer truthfully, cannot be regarded as compulsion within the meaning of Article 20(3). The prospect of prosecution may lead to legal tension in the exercise of a constitutional right, but then, a stance of silence is running a calculated risk. On the other hand, if there is any mode of pressure, subtle or crude, mental or physical, direct or indirect, but sufficiently substantial, applied by the policeman for obtaining information from an accused strongly suggestive of guilt, it becomes “compelled testimony”, vialative of Article 20(3). We do not find any substance in this submission of the learned Counsel and the decision relied on is clearly distinguishable. As observed earlier the Appellant is not an accused in the Police case and in fact a witness whose statement was recorded during the course of investigation under Section 161 of the Code of Criminal Procedure. In the Police case he utmost can be asked to support the case of the prosecution but no question intended to incriminate him can be asked and in case it is done the protection under Article 20(3) of the Constitution shall spring into action. What question shall be put to this Appellant when he appears as a witness is a matter of guess and on that basis he does not deserve the blanket protection under Article 20(3) of the Constitution. Even at the cost of the repetition we may observe that in the Police case when he appears and asked to answer question, the answer whereof tends to incriminate him, he can refuse to answer the same pleading protection under Article 20(3) of the Constitution. In such eventuality the Court would decide the same. Therefore, at this stage the blanket protection sought by the Appellant is not fit to be granted.


10. As regards the authority of this Court in the case of Nandini Satpathy (supra) the same has no bearing in the facts and circumstances of this case. There the question was as to whether the protection under Article 20(3) of the Constitution shall apply at the stage of Police interrogation and in answer thereto this Court held that it shall go back to the stage of Police interrogation and not in Court only.

Chapter 5

POLICE ARREST AND CUSTODY

In every ‘arrest’ there is ‘custody’, but not vice versa. Is custody (as meant by Article 22(2) of the , and Section 57 of the Code of Criminal Procedure, 1973 (“the CrPC”)) a part of every ‘formal arrest’? Justices M. Jaichandren and S. Nagamuthu addressed the issue in a Criminal Original Petition, in State by Inspector of Police, Anti Land Grabbing Special Cell v. K.N. Nehru, K.N. Ramajayam, and M. Anbhazhagan, in an order dated November 3, 2011. Briefly, the facts begin with the accused already in judicial custody in connection with two criminal cases. They were then formally arrested in connection with a third case. The Investigating Officer approached the Jurisdictional Magistrate for issuance of Prison Transit Warrants (“PT Warrants”) for the production of the accused. PT Warrants were issued and the accused were produced before the Jurisdictional Magistrate. This process took a few days. Thus, the accused could not be produced before the Magistrate concerned within twenty-four hours from the time of formal arrest. The Magistrate then remanded the accused to judicial custody. The issues before the court were: 1. When the accused is in judicial custody in connection with one case, if a formal arrest is effected in prison in connection with a different case, will the accused be “in the custody of the police”, as under Section 57 of the CrPC and Article 22(2) of the Constitution? 2. From the time of formal arrest, if the accused is not produced before the Magistrate for remand within twenty-four hours, will the detention of the accused, beyond these twenty-four hours be illegal? 3. Assuming that the accused could not be produced within twenty-four hours from the time of effecting formal arrest in jail, would it be lawful for the Magistrate to pass an order authorising the detention of the accused, either in police custody or in judicial custody, thereafter?

Police Arrest and Custody 109

4. Would such remand order passed by the Magistrate cure or legalise the alleged illegal detention of the accused in police custody beyond twenty-four hours from the time of formal arrest? Before answering these issues, the court outlined the law governing arrest and detention of persons accused of criminal offences. Article 22 of the Constitution mandates that every person who is arrested and detained in custody shall be produced before the nearest magistrate within twenty-four hours of such arrest excluding the time necessary for journey from the place of arrest to the court of the magistrate and that no such person shall be detained in custody beyond twenty-four hours without the authority of a magistrate. Section 57 of the CrPC echoes the same, further mandating that no police officer shall detain in custody a person arrested without warrant for a period longer than reasonable under all the circumstances. Such a period shall not, in the absence of a special order of a magistrate under Section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the magistrate’s court. Section 167(1) of the CrPC regulates and empowers a magistrate to authorise the detention of the accused either in police custody or in judicial custody, as the case may be. The petitioner contended that a formal arrest could not be equated to an arrest under Section 46 of the CrPC. When a formal arrest is effected in prison, the arrestee does not get into the custody of the police, and therefore, there is no question of detention in police custody beyond twenty-four hours. The respondents contended that the phrase “Arrest and Custody”, as enumerated in Article 22(2) of the Constitution and Section 57 of the CrPC, cannot be split into two distinct terms. After the moment of arrest, an accused comes under the physical custody of the police. Thus, there cannot be any arrest without custody. Even if a formal arrest is effected in prison by the police, the accused should be produced before a Magistrate within twenty-four hours from the time of such formal arrest and any detention beyond twenty-four hours from the time of formal arrest shall be illegal. The Bench explained that Section 46 of the CrPC clearly showed that “arrest” denotes confinement of the body of the person. It necessarily involves the person who effects the arrest taking the accused into physical custody. In Central Bureau of Investigation v. Anupam J. Kulkarani, 1992 (3) SCC 141, the Supreme Court held that a police officer can effect formal arrest of an accused person in prison. When a formal arrest is effected in prison, practically, if not in all cases at least in some cases, it may not be possible to produce the accused before the nearest magistrate within twenty-four hours for further remand, since the accused cannot be moved from the jail to the court without the authorisation of the court. In such a situation, the only mode


available for the police officer to produce the accused before the magistrate for the purpose of remand is to apply to the jurisdictional magistrate for a PT Warrant under Section 267, CrPC. This process will usually take more than twenty-four hours. If one were to say that the detention during the interregnum is illegal, it would be necessary to argue that the accused was in the custody of the police. Such an interpretation however, would make the law meaningless. The court then examined whether “arrest” and “custody” can be deemed synonymous. In Roshan Beevi v. Joint Secretary, Government of Tamil Nadu, 1983 MLW (Cri) 289, the Madras High Court concluded that custody and arrest are not synonymous, and held that even though custody may amount to arrest in certain circumstances, it did not mean that under all circumstances. In Niranjan Singh v. Prabhakar Rajaram Kharote, (1980) 2 SCC 559, Justice V.R. Krishna Iyer stated that one can be in custody not merely when the police arrests one and produces one before a Magistrate to get a remand to judicial or other custody, but can be stated to be in judicial custody when one surrenders before a court and submits to its directions. In a case where the accused is not actually arrested, as provided in Section 46, CrPC, and only a formal arrest is effected, the Bench ruled that the accused is not taken into the physical custody of the police. In other words, when formal arrest is effected, as stated in Central Bureau of Investigation v. Anupam Kulkarni, there is no custody, whereas, when there is actual arrest effected, there is custody. Therefore, there is no legal mandate that the accused should thereafter be produced before the jurisdictional magistrate or nearest magistrate, within twenty-four hours of such formal arrest. The next question is whether when the accused is already lodged in prison in connection with some other case, it is necessary that in all such cases, formal arrest is required to be effected in prison. It is needless to point out that though police officers have the power to arrest, it does not mean that they have to resort to arresting the accused, irrespective of the need and justification for arrest. Thus, only in a case where such arrest is absolutely necessary should they resort to arrest. In all other cases, they may, without arresting the accused, proceed with the investigation and file final reports. The Bench concluded: 1. When an accused is involved in more than one case and has been remanded to judicial custody in connection with one case, there is no legal compulsion for the Investigating Officer in the other case to effect a formal arrest of the accused. The police officer can resort to arrest only if there are grounds and there is a need for the arrest


2. In such a case, if the Investigating Officer decides to arrest the accused, he can go over to the prison where the accused is already in judicial remand in connection with some other case, and effect a formal arrest. When such a formal arrest is effected in prison, the accused does not come into the physical custody of the police at all, instead, he continues to be in judicial custody in connection with the other case. Therefore, there is no legal compulsion for the production of the accused before the magistrate within twenty-four hours from the said formal arrest. 3. For the production of the accused before the court after such formal arrest, the police officer shall make an application before the jurisdictional magistrate for issuance of a PT Warrant without delay. If the conditions under Section 267 of the CrPC are satisfied, the Magistrate shall issue PT Warrants for the production of the accused before him on a specified date. When the accused is so transmitted from prison and produced before the jurisdictional magistrate, it will be lawful for the police officer to make a request to the magistrate for authorising the detention of the accused either in police custody or in judicial custody. 4. After considering the said request, the representation of the accused, and after perusing the case diary and other relevant materials, the magistrate shall pass appropriate orders under Section 167(1) of the CrPC. 5. If the police officer decides not to effect formal arrest, it will be lawful for him to make an application to the jurisdictional magistrate for the issuance of PT Warrant for transmitting the accused from prison before him for the purpose of remand. On such request, if the magistrate finds that the requirements of Section 267 of the CrPC are satisfied, he shall issue a PT Warrant for the production of the accused on or before a specified date. 6. When the accused is so transmitted and produced before the magistrate in pursuance of the PT Warrant from prison, the police officer will be entitled to make a request to the Magistrate for authorising the detention of the accused either in police custody or in judicial custody. On such request, after following the procedure indicated above, the magistrate shall pass appropriate orders either remanding the accused either to judicial custody or police custody under Section 167(1) of the CrPC, or dismissing the request after recording the reasons. 7. Before the accused is transmitted and produced before the court in pursuance of a PT Warrant in connection with a later case, if he has been ordered to be released in connection with the former case, the jail authority shall set him at liberty and return the PT Warrant to the Magistrate making the necessary endorsement. Only if the accused continues to be in judicial


custody, in connection with the former case, can he be transmitted in pursuance of PT Warrant in connection with the later case. As a result, the impugned order of the Judicial Magistrate was set aside. The matter was remitted back to the Magistrate for passing appropriate orders, under Section 167(1) of the CrPC, after affording an opportunity to the prosecution as well as to the accused to be heard. The respondents were directed to surrender before the Judicial Magistrate, and if they failed to appear, the Magistrate was authorised to secure their custody by issuing non-bailable warrants.

1 Appellants: Bhagwan Singh and Ors.

Vs. Respondent: State of M.P.

Decided On: 23.01.20031

Facts- The incident took place on the intervening night of 28-29th February, 1984. The case of the prosecution is that the child eye-witnessArvind Kumar (PW-29) aged about six years was long with his two younger brothers sleeping with her deceased mother Munni Devi in the house of deceased Mata Prasad. The Investigating Officer claims to have recorded statement of the child witness under Section161 Cr.P.C. on the next day of the incident i.e. 01.3.1984. In his deposition the child claims to have seen accused Bhagwan Singh catching hold of his mother by face and the co-accused Laxman Singh and Sultan Singh assaulting her. He also stated that there were two other persons present with the accused. After witnessing the incident, he got terrified and went back to sleep. When he woke up in the morning, he found his grandfather Mata Prasad dead and hanging on the door of the house and mother lying burnt and dead. On seeing this ghastly scene, he again fell asleep inside the house. In the morning, his maternal uncle Agyaram came and took him and his younger brothers to village Alampur, where his father Radheshyam (PW-20) lived. The most striking feature of the case casting great doubt on the evidence of the child witness is the fact that although the child had named three appellants/accused in his statement under Section 161Cr.P.C. on 01.3.1984, the named accused were not arrested immediately thereafter. They were arrested as per the arrest memo (Ex.P18) on 12.3.1984. It is most unlikely that if the child had named the accused in his statement under Section 161 Cr.P.C. on 01.3.1984, the accused could not have been arrested soon thereafter. There 1. AIR 2003 SC 1088


is no explanation in the record for this delay in the arrest of the three accused who were alleged to have been named by the child witness in his statement to the police. The maternal uncle of the child Agyaram was the first person to meet child witness Arvind Kumar (PW-19). If the child had seen the incident and recognised the accused, Agyaram was the first person to whom the child would have disclosed the incident and the names of the assailants. The prosecution has not produced Agyaram as a witness in the case and has offered no explanation for withholding him from producing as a witness. This omission on the part of the prosecution for not producing Agyaram as a witness has been given great importance by the trial Judge in rejecting the version of the child amongst other reasons. The High Court, however, has overlooked this vital lapse in the prosecution evidence. The court held that-Judicial confession of acquitted accused P in police custody not involuntary and hence, unreliable--Confession also retracted by him in writing in his statement under Section 313, Cr. P.C.--Village of incident coming under dacoity affected area--Possibility of commission of alleged crime by unknown criminals not wholly ruled out--High Court not justified in reversing verdict of acquittal made by trial court--Appreciation of evidence by trial court proper--And conclusions drawn are reasonable--Judgment of High Court set aside. The most striking feature of the case casting great doubt on the evidence of the child witness is the fact that although the child had named three appellants/accused in his statement under Section 161Cr.P.C. on 01.3.1984, the named accused were not arrested immediately thereafter. They were arrested as per the arrest memo (Ex.P18) on 12.3.1984. It is most unlikely that if the child had named the accused in his statement under Section 161 Cr.P.C. on 01.3.1984, the accused could not have been arrested soon thereafter. There is no explanation in the record for this delay in the arrest of the three accused who were alleged to have been named by the child witness in his statement to the police. The maternal uncle of the child Agyaram was the first person to meet child witness Arvind Kumar (PW-19). If the child had seen the incident and recognised the accused, Agyaram was the first person to whom the child would have disclosed the incident and the names of the assailants. The prosecution has not produced Agyaram as a witness in the case and has offered no explanation for withholding him from producing as a witness. This omission on the part of the prosecution for not producing Agyaram as a witness has been given great importance by the trial Judge in rejecting the


version of the child amongst other reasons. The High Court, however, has overlooked this vital lapse in the prosecution evidence. Radheshyam (PW-20), the father of the child and husband of deceased Munni Devi in his statement did not state that after the incident, the child witness Arvind Kumar (PW-19) has disclosed to him the names of the assailants. This infirmity in the evidence of Radheshyam and child witness has been tried to be explained by the High Court in paragraph 26 of impugned judgment stating that Radheshyam with the news of the murder of near and dear ones might have been perturbed and instead of interrogating his child, must have been busy in taking care of the dead bodies and in helping the police investigation. The child witness was examined in the court as PW-19. His statement was recorded on 14.2.1985. In the period intervening the date of incident to the date of his deposition, there was sufficient time to tutor him for making a statement to involve the accused by names. Admittedly, even though child witness Arvind Kumar (PW-19) is alleged to have seen and named the three appellants/accused on 01.3.1984 in his statement made to the police under Section 161 Cr.P.C., no test identification parade was held. The accused are said to have been produced in the court with their faces covered. They were then on the directions of the court asked to uncover their faces. The child is said to have identified them in the court when they were in the dock. This dock identification of the three accused by child witness in the court was not given importance by the trial Judge in the absence of any Test Identification Parade. The trial Judge recorded the demeanour of the child witness that he was pausing and sometimes faltering while deposing and did not seem to understand few questions put to him. The trial Judge, therefore, held that it would be hazardous to rely on such shaky testimony of a child witness who could have been tutored in the period intervening the date of incident and the date of his deposition. In appeal, the High Court relied on the sole testimony of the above eye-witness and brushed aside such serious omissions including not holding of test identification parade after the child witness had named the three assailants before the police. The High Court relied on dock identification stating that the child witness used to regularly visit his deceased grandfather Mata Prasad with his mother and was knowing since before the incident accused Bhagwan Singh living in the neighbourhood and other accused Sultan Singh and Laxman Singh who were also of the same village Murawall. The relevant part of the reasoning of the High Court contained in paragraphs 26 to 28, requires reproduction for considering whether the reasons and conclusions contained in the judgment of the High Court are justified for reversing the verdict of acquittal given by the trial Judge.


The Magistrate in deposition as PW-1 does say that he questioned accused Pooran Singh and the latter confirmed that he was making a statement voluntarily without any pressure. But the record of confession (Ex.P1) does not show that any specific questions were put to accused Pooran Singh whether any physical or mental pressure was put on him by the investigating agency. The first precaution that a Judicial Magistrate is required to take is to prevent forcible extraction of confession by the prosecution agency [See - State of U.P. v. Singhara Singh, [1964] 4 SCR 485]. It has also held by this Court in the case of Shivappa v. State of Karnataka : AIR1995SC980 that the provisions of Section 164 Cr.P.C. must be complied with not only in form, but in essence. Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution.

2 Appellants: State Rep. by Inspector of Police and Ors.

Vs. Respondent: N.M.T. Joy Immaculate

Decided On: 05.05.20042

Facts-These appeals have been preferred by the State of Tamil Nadu against the judgment and order dated 11.4.2002 of a learned Single Judge of the High Court of Madras by which the criminal revision petition preferred by the respondent N.M.T. Joy Immaculate was allowed and the revision was disposed of with certain directionsAn unidentified dead body was found at Kanagavallipuram and on the report of Village Administrative Officer a case was registered with the concerned police station. After autopsy in the Government Hospital, Tiruvellore, the dead body was buried. One Deva @ Dev Raj was arrested by Inspector of P1-Puliyanthope Police Station. He confessed to the police about the commission of crime and showed the place where Rizwan Sail was murdered. It was thereafter ascertained that the unidentified dead body found on 10.10.2001 at Tiruvellore Taluka was that of Rizwan Sait. Thereafter, the case registered on 9.10.2001 at P.S. P1-Puliyanthope was altered to Section 363, 302 IPC. Dev Raj was remanded to judicial custody on 23.10.2001. Joy Immaculate surrendered in the Court of Judicial Magistrate, Alandhur, Chennai on 24.10.2001 and was remanded to judicial custody and R. Sathish surrendered before XXIII Metropolitan

2. AIR 2004 SC 2282


Magistrate, Saidpet, Chennai on 25.10.2001. The Investigating Officer made an application before the concerned Magistrate on 31.10.2001 for giving Sathish on police remand. This application was allowed and the learned Metropolitan Magistrate vide his order dated 1.11.2001 granted police remand of accused Sathish for 3 days i.e. from 1.11.2001 to 3.11.2001. It is alleged that he made some sort of a confession to the police and on the basis of the statement made by him, some incriminating articles were recovered. Thereafter, the Investigating Officer moved an application before the concerned Magistrate for grant of police remand of Joy Immaculate, which was opposed by her. The learned Vth Metropolitan Magistrate, Egmore, Chennai passed a detailed order on 6.11.2001, whereunder she was given in police custody for one day and was to be produced in court by 4.00 p.m. on 7.11.2001. It was directed that she would be detained in All Women Police Station and would be interrogated at the office of the Asst. Commissioner of Police, in the presence of the women Inspector of Police. It was further directed that during the period of police custody, the accused should not be harassed physically or psychologically and should be produced before the Court, in me same condition. The court held that According to the prosecution, Joy Immaculate made some confessional statements before the Investigating Officer and on her pointing out the wrist watch and shirt of the deceased and also the nylon rope used in the commission of murder were recovered. Thereafter, on 7.11.2001 she was produced before the Vth Metropolitan Magistrate who remanded her to judicial custody. Two weeks thereafter, Joy Immaculate filed a criminal revision petition under Section 397 Cr.P.C. being Crl. R.C. No. 1569 of 2001, wherein it was prayed that the order dated 6.11.2001 passed by Vth Metropolitan Magistrate granting police custody be set aside as the same is against the principles laid down in Section 167 Cr.P.C and that the Court may pass such other and further orders as it may deem fit and proper. In the revision petition, accused Joy Immaculate filed an affidavit making serious allegations against the police personnel to the effect that she was interrogated and detained at the police station on 18th and then from 20th to 24thOctober, 2001 and also referred to certain telegrams which were sent to the Chief Justice of the High Court in this connection The learned Vth Metropolitan Magistrate by his order dated 6.11.2001 had granted police remand for one day of the accused Joy Immaculate in exercise of powers conferred by Section 167 Cr.P.C. She was given in police custody on the same day and was produced before the learned Metropolitan Magistrate on 7.11.2001 and thereafter she was sent to judicial custody. The order had exhausted itself as the police custody was actually given. However,


the accused challenged the aforesaid order by filing a criminal revision petition under Section 397 Cr.P.C. after two weeks on 21.11.2001. 8. The first question which needs examination is whether the revision petition was maintainable. Sub-section (2) of Section 397, Cr.P.C. lays down that the power of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, enquiry, trial or other proceedings. The expression “interlocutory order” has not been defined in the Code The High Court has also awarded Rs. 1 lakh as compensation to the accused on the ground that she was illegally detained in the police station and the police personnel committed acts of molestation, obscene violation etc. It is noteworthy that after investigation, police has submitted charge sheet against accused Joy Immaculate. Her application for bail was rejected by the learned Sessions Judge and thereafter by the High Court on 18.1.2002 prior to the decision of the revision. There is absolutely no justification for awarding compensation to a person who is facing prosecution for a serious offence like murder even before the trial has commenced. This direction, therefore, deserves to be set aside. Section 160 of the Code of Criminal Procedure deals with police officer’s power to require attendance of witnesses. This Section aims at securing the attendance of persons who would supply the necessary information in respect of the commission of an offence and would be examined as witnesses in the inquiry or trial therefore. This Section applies only to the cases of persons who appear to be acquainted with the circumstances of the case, i.e. the witnesses or possible witnesses only In the instant case, the High Court, by an impugned order has given a direction to the State Government to issue circulars to all the police stations instructing the police officials that the woman accused/witness should not be summoned or required to attend at any police station under Section 160 Cr.P.C. but they must be enquired only by women police or in the presence of a women police, at the places where they reside. The High Court has issued a further direction to the Government to ensure that this instruction is strictly followed by the police in future. 24. In our opinion, the High Court has committed a serious error in giving such a direction contrary to the statutory provisions under Section 160 of the Cr.P.C. which is applicable only to the witnesses and not the accused. The High Court has also committed a grave error in giving a finding as to the confession and recovery of a nylon rope alleged to have been used in the commission of murder, thereby stifling/foreclosing the investigation into an offence of murder even before a final report in the case as contemplated under


Section 173(2) of the Cr.P.C. is filed. to note that the aforementioned findings is contrary to the statutory provisions contained in Section160 of the Cr.P.C. In fact, the learned Judge has erred in expanding the scope of Section 160 Cr.P.C. to the accused as well, which might lead to hardship to an investigating agency. If the directions of the learned single Judge is accepted, no purposeful investigation into any serious offence involving women accused could be conducted successfully. The learned Judge has also directed to take immediate departmental action against P-1 Inspector of Police and P-4 Inspector of Police and other Police Personnel who were responsible for the detention and other alleged acts committed on the respondent at P-4 police station. This direction, in our opinion, is not warranted in view of the fact of our allowing the criminal appeal and setting aside the judgment of the learned single Judge. The said direction issued by the learned Judge is set aside. This Court, in a number of other decisions, has also observed that the Courts should not make unjustifiable observations and directions beyond the scope and ambit of the lis pending before it and that such a direction and observation issued will only hamper the free-flow of justice and cause lot of inconvenience to the litigants who come before the Court for redressal of their genuine grievances. I respectfully agree with all other directions and the observations made by brother G.P. Mathur, J. in allowing the criminal appeal and setting aside the impugned judgment of the High Court dated 11.04.2002.

3 Appellants: Raghuvansh Dewanchand Bhasin


Decided On: 09.09.20113

Facts - This appeal, by special leave, is directed against the judgment and order dated 26th November 2007, rendered by the High Court of Judicature at Bombay, in CRL. W.P.No. 1086/2002. By the impugned judgment, while allowing the writ petition filed by the Appellant, alleging harassment on account of his arrest on the strength of a non-bailable warrant, which had been cancelled, the High Court has directed the delinquent police officer to pay by way of costs to the Appellant an amount of ` 2,000/- from his own account

3. AIR 2011 SC 3393, 2012


On 15th August, 2002, the complainant approached the Colaba Police Station and insisted on the arrest of the Appellant in pursuance of the said non-bailable warrant. Thereupon, Respondent No. 2, who at that point of time was posted as an Inspector of Police at the Colaba Police Station, directed a constable to accompany the complainant, and execute the warrant. When the Appellant was sought to be arrested, he informed the constable that the said warrant had already been cancelled. However, as he could not produce any documentary evidence relating to cancellation of warrant, the Appellant was arrested before a public gathering which had assembled at the Radio Club, in connection with the Independence day celebrations. He was produced before the duty Magistrate at about 2 P.M., the same day. The Magistrate directed the release of the Appellant. It appears that the Appellant obtained the necessary confirmation about cancellation of the warrant on the next day i.e. 16th August 2002 and produced the same before Respondent No. 2 on the same day. Alleging malafides and humiliation at the hands of Respondent No. 2, in collusion with the complainant, the Appellant approached the High Court, inter-alia, praying for suitable disciplinary action against Respondent No. 2; adequate compensation; damages and costs by the said Respondent from his own pocket. 5. As aforesaid, the High Court, vide impugned judgment has allowed the writ petition, inter alia, observing thus: having failed to get the desired relief from the High Court, the Appellant is before us in this appeal The court held that Arguing the case in person, it was strenuously urged by the Appellant that having regard to the nature of offence alleged against him, in the first place, the Additional Chief Metropolitan Magistrate erred in law in issuing non-bailable warrant in a routine manner, without application of mind, merely because the Appellant had failed to appear in court on 7th August 2002. It was asserted that since neither Section 70 nor Section 71 of the Code of Criminal Procedure, 1973 (for short “the Code”) uses the expression “non-bailable” a Magistrate is not authorised to issue non-bailable warrant of arrest even when an accused fails to appear in the court. It was submitted that having held that the Respondent No. 2 was guilty of misconduct, the High Court failed to punish the said Respondent under Sections 342 and 345 of the Indian Penal Code. It was argued that the misconduct of Respondent No. 2 was so high that he should have been forthwith suspended from his job and ordered to be tried in a competent criminal court. According to the Appellant, the direction of the High Court asking Respondent No. 2 to pay an amount of ` 2,000/- by way of cost to the Appellant was No. justice at all and if a strict action is not taken against such delinquent officers, they will continue to disregard the orders of the courts with impunity.


We deferentially concur with these directions, and emphasize that since these directions flow from the right to life and personal liberty, enshrined in Articles 21 and 22 of our Constitution, they need to be strictly complied with. However, we may hasten to add that these are only broad guidelines and not rigid rules of universal application when facts and behavioral patterns are bound to differ from case to case. Since discretion in this behalf is entrusted with the court, it is not advisable to lay down immutable formulae on the basis whereof discretion could be exercised. As aforesaid, it is for the court concerned to assess the situation and exercise discretion judiciously, dispassionately and without prejudice. We shall now advert to a more anxious point, viz. the conduct of Respondent No. 2, at whose direction the warrant was executed. It needs No. emphasis that any form of degrading treatment would fall within the inhibition of Article 21 of the Constitution. In the present case, Respondent No. 2 was aware that the non-bailable warrant issued on account of failure on the part of the Appellant to attend the court proceedings on 7th August 2002, was returnable only on 31st October 2002. Undoubtedly, Respondent No. 2 was duty bound to execute the warrant as expeditiously as possible but we are unable to fathom any justifiable reason for the urgency in executing the warrant on a National holiday, more so when it had been issued more than a week ago and even the complaint against the Appellant was in relation to the offence punishable under Section 324 of the Indian Penal Code. The complaint related to the year 2000. At the relevant time, the offence punishable under Section 324 of the Indian Penal Code was a bailable offence. That takes us to the core issue, namely, whether the Appellant is entitled to any compensation for the humiliation and harassment suffered by him on account of the wrong perpetrated by Respondent No. 2, in addition to what has been awarded by the High Court. As aforesaid, the grievance of the Appellant is that imposition of a fine of ` 2,000/- on Respondent No. 2 is grossly inadequate. His prayer is that in addition to an adequate amount of compensation, Respondent No. 2 should also be prosecuted and proceeded against departmentally for his wrongful confinement he last issue raised that remains to be considered is whether the Courts can at all issue a warrant, called a “non-bailable” warrant because No. such terminology is found in the Code as well as in Form 2 of the Second Schedule to the Code. It is true that neither Section 70 nor Section 71, appearing in Chapter VI of the Code, enumerating the processes to compel appearance, as also Form 2 uses the expression like “non-bailable”. Section 70 merely speaks of form of warrant of arrest, and ordains that it will remain in force until it is cancelled. Similarly Section 71 talks of discretionary power of Court to specify about the security


to be taken in case the person is to be released on his arrest pursuant to the execution of the warrant issued under Section 70 of the Code. Sub-section 2 of Section 71 of the Code specifies the endorsements which can be made on a warrant. Nevertheless, we feel that the endorsement of the expression “non-bailable” on a warrant is to facilitate the executing authority as well as the person against whom the warrant is sought to be executed to make them aware as to the nature of the warrant that has been issued. In our view, merely because Form No. 2, issued under Section 476 of the Code, and set forth in the Second schedule.

4 Appellants: Sanatan Naskar and Anr.

Vs. Respondent: State of West Bengal

Decided On: 08.07.20104

Facts This case is a typical example, where conviction is entirely based upon circumstantial evidence. It is a settled principle of law that doctrine of circumstantial evidence is brought into aid where there are no witnesses to give eye version of the occurrence and it is for the prosecution to establish complete chain of circumstances and events leading to a definite conclusion that will point towards the involvement and guilt of the accused. The challenge in the present appeal is to the concurrent judgments of conviction passed by the learned Sessions Judge as well as the High Court, primarily, on the ground that the prosecution has been able to establish by leading cogent and reliable evidence and the chain of circumstances leading to the commission of the offence by the accused persons. The challenge, primarily, is that findings of the Court are erroneous in law and on the facts of the case. According to the accused-appellants, the prosecution has not been able to establish the guilt beyond reasonable doubt. Secondly, it is submitted that the confessions, alleged to have been recorded by the police officer on the basis of which recoveries were effected, are contrary to law and, therefore, could not be the basis of the conviction of the appellants. For these reasons the appellants claim acquittal from charge. To examine the merits of these contentions reference to the case of the prosecution and the facts, as they emerged from the record, would be necessary. On 28th April, 1999 at Police Station Jadavpur, a case was registered under Section 302/34 of the Indian Penal Code (hereinafter referred to as ‘IPC’) 4. AIR 2010 SC 3570


against unknown miscreants for causing death of one Smt. Phool Guha, wife of Dr. Ashim Guha, resident of 11/1 East Road within Jadavpur Police Station. This case was registered on the basis of the complaint made by Dr. Ashim Guha The court held thatAs is evident from the above complaint that Dr. Ashim Guha, husband of the deceased, his son Debmalya and daughter-in-law Indira had left for Garihat on 28th April, 1999 at about 8.15 P.M. The deceased was all alone at home. When they returned home at about 9.30 P.M. they found a large gathering in front of the house. Upon entering the house, they found that Phool Guha was lying dead inside the room of her daughter-in-law with tongue protruded and with some marks of bruises on her body and blood trickling out of her mouth. It transpired that the assailants committed the murder of his wife and had ransacked both the rooms as the household articles were lying scattered. Mrinal Kanti Roy, the Investigating Officer, who was later examined as PW 13, commenced his investigation. He called for experts including dog squad. The photographs were taken. The dog squad was brought to the place of occurrence. After sniffing the place of occurrence, taking the round of the house and also sniffing the handkerchief lying on the face of the deceased, the dogs could not identify anyone present there. Thereafter inquest of the deceased was taken with the help of the relatives. The body was taken to Mominpur Police Morgue by the constable where the post mortem of the deceased was conducted and the report is Ext. 8. From the place of occurrence certain articles were recovered and seizure memos were prepared whereafter both the rooms at the upper floor of the house were locked. The saliva and blood stains, where the body was found, The case was committed to the Court of Sessions by the learned Magistrate vide order dated 28th November, 1999. After trial and recording of the statements of the accused under Section 313 of the Criminal Procedure Code (hereinafter referred to as ‘Cr.P.C.’) the learned Sessions Judge, by a detailed judgment, convicted both the accused and punished them The answers by an accused under Section 313 of the Cr.PC are of relevance for finding out the truth and examining the veracity of the case of the prosecution. The scope of Section 313 of the Cr.PC is wide and is not a mere formality. Let us examine the essential features of this section and the principles of law as enunciated by judgments, which are the guiding factors for proper application and consequences which shall flow from the provisions of Section 313 of the Cr.PC. As already noticed, the object of recording the statement of the accused under Section 313 of the Cr.PC is to put all incriminating evidence to the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also permit him to put forward


his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The Court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the Court and, besides ensuring the compliance thereof, the Court has to keep in mindSo, the first and the foremost question that this Court has to examine in the present case is, whether the prosecution has been able to establish the chain of event and circumstances which certainly points out towards the involvement and guilt of the accused that the accused gets a fair chance to explain his conduct We have already noticed that statement of PW 6 along with other prosecution witnesses is of definite significance. It is in evidence that the entrance door of the house was used to be locked. It was opened only when the visitor to the house press the call bell and such person was duly identifiable to the member of the family, watching from the 1st floor and that the keys were sent down with the help of a thread to enable the visitor to open the outside lock and then to enter the house. Keeping this routine practice adopted by the family of the deceased, it is clear that both the accused could enter the house only by the process indicated above or by break opening the lock of the entrance door. This is nobody’s case before the Court that the lock or the door itself was broken by the miscreants who entered the house of the deceased. The only possible inference is that these accused were known to the family, as stated by the witnesses including PW 6 and they entered the house in the manner afore stated and upon entering the house they ransacked the house and committed the murder of Phool Guha and fled away with stolen articles. The stolen articles were subsequently recovered from them and duly identified during investigation and trial. All these circumstances established the case of the prosecution beyond any reasonable doubt.

5 Appellants: Ram Singh

Vs. Respondent: Sonia and Ors.

Decided On: 15.02.20075

Facts The case of the prosecution is that on 23.8.2001 when Jeet Singh [PW 57], one of the employees of deceased - Relu Ram, and A-2 were sitting at the Saw Mill located by the side of Farm House of Relu Ram, a telephone call was received by A-2 from A-1 conveying her desire to celebrate Priyanka’s [deceased sister of A-1] birthday at the Kothi at Litani Mor

5. AIR 2007 SC 1218


[place of occurrence] and that she would bring her from the hostel of Jindal School at Hisar the school she was studying in. At about 9.30 p.m. A-1 along with Priyanka reached home in a jeep. Thereafter, between 11 12 p.m., on hearing some noise of footsteps, PW 57, who was present at the Farm House, woke up and noticed that light in the room, where the spare parts of tractors etc. were kept, was on and upon inquiry found that A-1 was there in the room and he saw her taking a rod to the first floor which rod is used for raising/tilting the tractor from the ground. He again heard the noise of explosion of fire works, but, thinking that Priyanka’s birthday was being celebrated, he went to sleep. PW 57 further stated that on 24.8.2001 at about 4.45 a.m. when he was sitting on his cot, he saw A-1 coming down and taking the Jeep at a very fast speed and returning after half an hour. Thereafter, at about 5.30 a.m. Ram Phal, the Milk Vendor, brought milk, but on seeing him coming upstairs, A-1 instructed him to leave the milk on the ground floor. At about 6.15 a.m. the School Van came to take Lokesh [deceased], son of Sunil [deceased], but it left after waiting for some time as Lokesh did not come down despite blowing of horn. PW 57 thereafter sent Rohtas, another servant of Relu Ram, to the first floor for bringing Lokesh down for being dropped in the School on motor-cycle. Upon being called by Rohtas, PW 57 went to the first floor and found that A-1 was lying in the porch with froth coming out of her mouth and was mumbling that she be saved and Sanjiv [A-2] be called. Reaching inside the house, PW 57 found that Relu Ram [father], Krishna [mother], Sunil [brother], Shakuntala [sister-in-law], Priyanka @ Pamma [sister], Lokesh [nephew] and Shivani and Preeti [nieces] of A-1 had been murdered in different rooms. He also found that Shakuntla’s hands and feet were tied with cot. The tractor rod that PW 57 had seen A-1 removing from the room on the previous night was lying on the bed of A-1. Noticing a letter [Suicide Note Ext. 227] lying on the bed of A- 1 written in Hindi, PW 57 picked up the same and left for the Ulkana Police Station. While giving description of what had been seen by him at the place of occurrence and handing over the said Suicide Note to S.I. Vinod Kumar, PW 59, PW 57 also stated that it may be possible that A-1 under a conspiracy had either administered some poisonous substance or made them to inhale poisonous thing and upon becoming unconscious they had been murdered. It was further stated by him that about six months prior to this incident, A-1 with an intention to kill deceased Sunil had also fired a shot from the licensed gun of deceased Relu Ram over a dispute of property, but the matter was hushed up in the house. The court held that On completion of the investigation, chargesheet was submitted against A-1, A-2 and eight other accused persons, cognizance taken and they were committed to the court of Sessions to face trial.


Defence of the accused persons was that they were innocent and falsely implicated. The stand taken by A-1 was that she was picked up by the police of CIA Staff on 24th August from Faridabad and was brought to Hisar, kept in illegal custody, tortured and threatened that in case she would not make the statement according to what they say, her only son would be killed and thereafter they forcibly obtained her signatures on blank papers. A-2 took the defence, inter alia, that he was falsely implicated at the instance of the employees of Relu Ram who had embezzled a lot of money of his father- in-law and by those people who had taken a loan from him and that it were they who had committed the murder of Relu Ram and his family members. We shall first deal with the Suicide Note allegedly written by A-1. PW 57 the informant while lodging the FIR and in his evidence stated that the Suicide Note was picked up by him from A-1’s bed and thereafter he left for the Ulkana Police Station to lodge the FIR. It was handed over by him to PW.59 who, on the basis of sequence of events narrated by PW.57 that had taken place at the place of occurrence and on the basis of Suicide Note, registered the FIR, making the Suicide Note as part and parcel of the FIR by reproducing its contents therein A bare perusal of Suicide Note which was addressed by A-1 to none other than A-2 [her husband], would show that in the very first line she has confessed of having eliminated everybody and that she was ending her life as well. In this very letter of hers, A-1 has admitted having written it immediately after the occurrence. Whether one is or is not in police custody could be discerned from the facts and circumstances obtaining in each case. Insofar as the case at hand is concerned, the police party reached the place of occurrence within 10 minutes of lodgment of the FIR and PW.25, being aware of the fact that A- 1 had consumed poison and under instructions, seeing A-1 lying in front of the porch, removed her to the hospital. PW.52 having opined that A-1 was unfit at the time of her admission in the hospital to give any statement, PW.62 and PW.32 also having stated in their evidence that none else, except them, was present in the room in which the statement of A-1 was recorded and in the absence of any evidence to show that from the moment of her admission to and discharge from the hospital the police personnel were either present in the room wherein A-1 was kept for treatment or even in the vicinity of the hospital or they made frequent visits to the hospital, it cannot be said that the A-1’s movements were restricted or she was kept in some sort of direct or indirect police surveillance and that she was in police custody for the purpose of Section 26 of the Evidence Act. Therefore, in our view, Paramhansa[supra] is of no help insofar as A-1 is concerned.


Before adverting to the three decisions relied upon by the learned Counsel for the accused, we shall first analyse the judicial confession (Ext.187) recorded by PW 62 and see whether it has been recorded according to the procedure prescribed by Section 164. We now proceed to consider the case of Sanjiv [A-2], husband of A-1, whose case revolves around the circumstantial evidence, apart from extra-judicial confessions made by him to Sunder Singh, PW 48 and Dr. Rajni Gandhi, PW.17, the result of the polygraph test and the recoveries made at his instance. In order to establish that A-1 had left the place of occurrence in the morning to take A-2 out therefrom in a clandestine way and leave her at a sufficient distance so as to be not seen by anyone, we have also been taken through the evidence of Head Constable Dharambir Singh [PW 46], conductor Jai Singh [PW.39], Rajesh Kumar [PW.55], Jai Dev Hans, [PW 45], Rajinder Parshad [PW 43] and K.A. Khan [PW 3]. PW. 46 in his testimony has stated that while he was on patrolling duty at Surewala Chock, he saw A-1 driving a vehicle at a very fast speed coming from Barwala side and going towards Narwana Chowk. PW.39 Having held that both A-1 and A-2 are guilty of murder of deceased Relu Ram and his family and that their conviction under Section 302 read with Section 34 and Section 120B and other provisions inflicted upon them by both the courts below does not call for any interference by this Court, we now proceed to decide whether the instant case is one of rarest of rare cases warranting death sentence, as has been held by the trial court to be one, or the one in which sentence of life imprisonment would be appropriate, as has been held by the High Court while commuting the sentence of death to life imprisonment. Having held that both A-1 and A-2 are guilty of murder of deceased Relu Ram and his family and that their conviction under Section 302 read with Section 34 and Section 120B and other provisions inflicted upon them by both the courts below does not call for any interference by this Court, we now proceed to decide whether the instant case is one of rarest of rare cases warranting death sentence, as has been held by the trial court to be one, or the one in which sentence of life imprisonment would be appropriate, as has been held by the High Court while commuting the sentence of death to life imprisonment.


6 Appellants: Rajoo and Ors.

Vs. Respondent: State of M.P.

Decided On: 03.12.20086

Facts On 28th December 1986, the prosecutrix PW9 along with her mother, Dukhni Bai PW8 were on their way to the bazaar for purchasing households items. While on the way, they met four of the accused Pyaru, Nandoo, Rajoo and Pentoo, who addressed the prosecutrix as a prostitute and then asked her to go with them to a hotel some distance away. The prosecutrix, however, refused to accept this order on which Nandoo and Pyaru put a towel on her face and after slapping her several times, made her sit on a scooter with Nandoo in front and Pyaru at the rear and the prosecutrix in the middle. The two accused then took the prosecutrix near the newly constructed quarters where the other accused were already present. It is the case of the prosecution that all the accused, first Nandoo, and thereafter the others turn by turn committed rape on her, and after having satisfied their lust, she was dropped by some of them near the peepal tree in the bazaar. She then reported the matter to the police at about 10 p.m. the same evening in which she named Nandoo and Bindu as the two accused who had taken her on the Luna but also stated that as all the other accused were from Ruabandha, she would be able to recognize them. A case under Sections 366 and 376 of the IPC was accordingly registered by Sub-Inspector P.N. Shukla PW10. The Police Officer also seized a saree and a petticoat which the prosecutrix had been wearing at the time of the commission of rape and also produced her before PW1 Dr. Smt. Christian for her medical examination. The Doctor observed no marks of injury visible on any part of her body other than a swelling on the lower jaw but opined that as she was habituated to sexual intercourse, she (the Doctor) was unable to give any opinion about the intercourse having been committed recently, though a foul smell was emanating from the vagina and slides were taken therefrom. Some of the accused were arrested on 29thDecember 1986 whereas the others were arrested on 2nd January 1987 and the underwear they were allegedly wearing at the time of incident were seized and thereafter sent to the laboratory and were subsequently found to be stained with semen. The accused were also produced before PW2 Dr. S.S. Dhillon and PW3 Dr. P. Srivastava, who opined that all the accused were capable of performing sexual intercourse. On 13th December 1986, 9 of the 13 accused were intermingled with 27 other persons and were subjected to an

6. AIR 2009 SC 858,


identification parade under the supervision of Sakharam Mahilong, Naib Tehsildar (PW5). As per the evidence of this officer, all the accused were duly identified by the prosecutrix by putting her hand over the head of each accused. The court held thatOn the completion of the investigation, all 13 accused were charged for offences punishable under Sections 366 / 376 of the IPC and as they pleaded not guilty, they were brought to trial. The trial court in its judgment dated May 26, 1989 relying on the evidence of the prosecutrix, as corroborated by the statement of her mother PW8, and further relying on the fact that 9 of the accused had been identified in the test identification parade and that the medical evidence showed the presence of semen in her vagina, found the case against all the accused as partly proved, and while acquitting them of the offence under Section 366 of the IPC convicted them for the offence under Section 376 (2) (g) with a sentence of RI for 10 years and a fine of Rs. 200/- and in default of fine to undergo RI for 6 months. Mr. Ranjit Kumar, the learned senior counsel for the accused-appellants has raised several arguments during the course of hearing. He has first emphasized that as the story projected by the prosecution witnesses i.e. the prosecutrix PW9 and her mother PW8 in so far as the offence under Section 366 of the IPC was concerned, had been disbelieved, the conviction under Section 376 (2) (g) of the IPC on the same evidence was uncalled for We have heard the learned Counsel for the parties and gone, through the record. It is true that rape is one of the most heinous and reprehensible of crimes that can be committed on a woman and it is for this reason that courts have leaned heavily in favour of such a victim. In this matter this Court allowed the State appeal against acquittal and while convicting the accused under Section 376 of the IPC, observed thus: The Court also observed that the alarming frequency of crimes against women had led Parliament to make some special laws in the background that rape was a very serious offence and that this was another factor which was to be kept in mind while appreciating the evidence in such matters. Reference has been made in Gurmit Singh’s case to the amendments in 1983 to Sections 375 and 376 of the India Penal Code making the penal provisions relating to rape more stringent, and also to Section 114 A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113 A and 113 B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two Sections, thus, raise a clear presumption in favour of the prosecution but no similar


presumption with respect to rape is visualized as the presumption under Section 114 A is extremely restricted in its applicability. Undoubtedly, the charge under Section 366 of the IPC has not been made out as per the findings of the courts below. We, however, find that the evidence of rape is distinct from the other charge and the matter should be examined in that background. We are, accordingly, of the opinion that merely because the accused have been acquitted for the offence punishable under Section 366 of the IPC is ipso-facto no reason to disbelieve the entire prosecution story on this solitary ground. On an examination of the entire evidence, we are of the opinion that it would be difficult to conclusively show the involvement of each of the accused beyond reasonable doubt. To our mind the truth and falsehood are so inextricably intertwined, that it is impossible to discern where one ends and the other begins.

7 Appellants: Prithipal Singh etc.

Vs. Respondent: State of Punjab and Anr. etc.

Decided On: 04.11.20117

Facts All the above appeals have been preferred against the common judgment and order dated 8.10.2007 passed by the High Court of Punjab & Haryana at Chandigarh in Criminal Appeal Nos. 864-DB of 2005, 2062-SB of 2005, 2073-SB of 2005, 2074-SB of 2005, 2075-SB of 2005 and order dated 16.10.2007 in Crl. R.P. No. 323 of 2006, whereby the High Court has dismissed the appeals of the Appellants filed against the conviction and sentences awarded to them by the Additional Sessions Judge, Patiala, in Sessions Case No. 49-T of 9.5.1998/30.11.2001 vide judgment and order dated 18.11.2005, whereby he had convicted Jaspal Singh, DSP appellant in Criminal Appeal No. 528 of 2009 and one Amarjit Singh, ASI, under Section 302/34 of Indian Penal Code, 1860 (hereinafter referred as `IPC’), and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 5,000/- each, in default of payment of fine, to further undergo Rigorous Imprisonment (hereinafter called `RI’) for five months. Both were also convicted under Section 120 b Indian Penal Code and sentenced to undergo RI for five years and to pay a fine of Rs. 2,000/-, in default of payment of fine, to further undergo RI for two months. They were further convicted under Sections 364/34 Indian Penal Code and sentenced to undergo RI for seven 7. 2011 (4) RCR (Criminal) 791


years and to pay a fine of Rs. 5000/- each, in default of payment of fine, to further undergo RI for five months. They were also convicted under Sections 201/34 Indian Penal Code and sentenced to undergo RI for two years and to pay a fine of Rs. 2,000/-, in default of payment of fine, to further undergo RI for two months. The High Court while dismissing the Criminal Appeals filed by Appellants, allowed the Criminal Revision Petition No. 323 of 2006 filed by Smt. Paramjit Kaur (PW.2), wife of the deceased, vide order dated 16.10.2007 and enhanced the sentence of the four Appellants from seven years RI to imprisonment for life under Section 364 Indian Penal Code. The court held that Shri Sushil Kumar, learned senior counsel appearing for the Appellants in Crl. Appeal Nos. 523-527/2008, has submitted that in the instant case, an FIR had been lodged under Section 365 Indian Penal Code without naming any person. The charge-sheet was filed under Sections 365/220 read with Section 120B Indian Penal Code and the sanction dated 19.8.1996 had been obtained by the prosecution from the Competent Authority to prosecute the accused persons under Sections 365/220 read with Section 120B Indian Penal Code. The Appellants stood convicted under Section 364 read with Section 34Indian Penal Code and were awarded 7 years RI each. In case, the appeals of these Appellants had been dismissed by the High Court, there was no justification for enhancing the punishment in exercise of the power under Section 386 (e) Code of Criminal Procedure. The High Court committed error in observing that it was a fit case for enhancement of punishment though charges had never been framed for the offences providing more rigorous punishment. In case, there had been no material at the time of framing of the charges for a more serious offence, the High Court erred in enhancing the punishment suo motu. The prosecution witnesses failed to identify the abductors. Moreover, there had been inordinate delay in investigation and thus, there were a lot of improvements and manipulations in the record. His statement was recorded by the CBI on 6.2.1996, but he did not name the said Appellant. Material improvements/contradictions exist between his statement in the court and before the CBI under Section 161 Code of Criminal Procedure. He had also accompanied Paramjit Kaur (PW.2) when she met Shri D.R. Bhati, D.I.G. but he has not stated before the CBI that he had accompanied her. Kirpal Singh (PW.7) also did not disclose in his statement under Section 161Code of Criminal Procedure. the name of the Appellant or any other person. In view of the above, the law can be summarised that the High Court in exercise of its power under Section 386(e) Code of Criminal Procedure. is


competent to enhance the sentence suo motu. However, such a course is permissible only after giving opportunity of hearing to the accused. The charges had been that all of them agreed to abduct and eliminate Shri Jaswant Singh Khalra. Thus, all of them stood charged under Section 120B Indian Penal Code. All of them were charged under Sections 364 read with 34 Indian Penal Code. Three of them, namely, Jaspal Singh, DSP, Appellant, Amarjit Singh and Rachpal Singh, as a result of criminal conspiracy, committed murder of Shri Khalra. Thus, they were charged under Sections 02 read with 34 Indian Penal Code. Further for causing the corpus of Shri Jaswant Singh Khalra disappeared with the intention of screening themselves from legal punishment, the said three persons were charged under Sections 201 read with 34 Indian Penal Code. During the course of trial, Ashok Kumar died, Rachpal Singh was discharged before his statement under Section 313 Code of Criminal Procedure. could be recorded as no incriminating material appeared against him. Amarjit Singh has been acquitted by the High Court. Thus, we are concerned with only remaining five Appellants Most of the Appellants had taken alibi for screening themselves from the offences. However, none of them could establish the same. The courts below have considered this issue elaborately and in order to avoid repetition, we do not want to re-examine the same. However, we would like to clarify that the conduct of accused subsequent to the commission of crime in such a case, may be very relevant. If there is sufficient evidence to show that the accused fabricated some evidence to screen/absolve himself from the offence, such circumstance may point towards his guilt. Such a view stand fortified by judgment of this Court in Anant Chintaman Lagu v. The State of Bombay AIR 1960 SC 500. Police atrocities are always violative of the constitutional mandate, particularly, Article 21 (protection of life and personal liberty) and Article 22 (person arrested must be informed the grounds of detention and produced before the Magistrate within 24 hours). Such provisions ensure that arbitrary arrest and detention are not made. Tolerance of police atrocities, as in the instant case, would amount to acceptance of systematic subversion and erosion of the rule of law. Therefore, illegal regime has to be glossed over with impunity, considering such cases of grave magnitude. In view of the above, we do not find any reason to interfere with the well reasoned judgment and order of the High Court. The facts of the case do not warrant review of the findings recorded by the courts below.


8 Appellants: Madhu

Vs. Respondent: State of Kerala

Decided On: 13.01.20128

Facts The Appellant herein, Madhu Kalikutty Panicker (hereinafter referred to as ‘Madhu’) was charged along with Sibi Bhaskaran (hereinafter referred to as ‘Sibi’) for offences punishable under Section 302 and392 read with Section 34 of the Indian Penal Code, for having robbed Padmini Devi alias Omana of her gold ornaments and thereafter having murdered her on 8.5.1998 at her residence, i.e., Kalathil House situated in Ward No. IV of Veliyanad Village. Both Madhu (accused No. 1) and Sibi (accused No. 2) were also residing in the neighbourhood of the deceased in the same ward and village. The Sessions Judge, Alappuzha convicted the accused and sentenced them to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 25,000/- under Section 392 of the Indian Penal Code. The accused were sentenced to imprisonment for life under Section 302 of the Indian Penal Code. The Sessions Judge directed that the aforesaid sentences would be suffered successively, i.e., one after the other. In case of default of payment of fine, the accused were to undergo further rigorous imprisonment for a period of three years. The Sessions Judge also directed that the accused would be entitled to set off equivalent to the period of their detention during the course of trial, under Section 428 of the Code of Criminal Procedure. On appeal, the High Court of Kerala maintained the conviction of the two accused. On the question of sentence, the High Court modified the order passed by the Sessions Judge to the extent that the sentences would run concurrently. Subject to the aforesaid modification, even the sentences awarded by the Sessions Court were maintained The court held that The conviction of the accused at the hands of the Sessions Judge as also the High Court was based on circumstantial evidence. Principally, the conviction was ordered as a consequence of recovery of ornaments worn by the deceased, pursuant to the information furnished by the accused. Based on the aforesaid recovery, the High Court, relying on Section 114 of the Indian Evidence Act inferred that the accused had committed the murder of Padmini Devi, and thereupon, robbed her off the ornaments worn by her. The only other material evidence taken into consideration by the

8. AIR 2012 SC 664


courts below, to return the conviction of the Appellant herein (as also his co-accused Sibi) was the factum of their having been sighted close to the place of occurrence at or around the time of occurrence The care and caution with which circumstantial evidence has to be evaluated stands recognized by judicial precedent. Only circumstantial evidence of a very high order can satisfy the test of proof in a criminal prosecution. In a case resting on circumstantial evidence, the prosecution must establish a complete unbroken chain of events leading to the determination that the inference being drawn from the evidence is the only inescapable conclusion On the registration of the FIR, PJ Thomas PW21, Circle Inspector of Police, reached the place of occurrence, and prepared the inquest report (Exhibit P-3). As per the inquest report. the deceased Padmini Devi alias Omana was aged 47 years. She was found by Karthikeyan Nair PW16, a neighbour and a resident of Thundiyil House in Ward No. IV, Veliyanad Village at 11.45 p.m. from the paddy field on the eastern side of his house. As per the inquest report, Padmini Devi was last seen alive at her residence by her son Aushutosh at 9.15 p.m. on 8.5.1998. As per the inquest report, apart from the dress worn by her she was wearing a gold chain around her neck of ‘thara’ fashion weighing about 5-1/2 sovereigns, besides 4-5 golden bangles in her left hand and golden earrings in her ears, when Aushutosh saw her for the last time. The inquest report further depicts, that blood and water was oozing out from her nostrils on both sides, and her tongue was protruding out by « inch, with the mouth slightl Since the prosecution endeavoured to establish the crime on the basis of circumstantial evidence, it shall be necessary for us to record a bird’s eye view of the statements of witnesses produced by the prosecution.y open. Since the prosecution endeavoured to establish the crime on the basis of circumstantial evidence, it shall be necessary for us to record a bird’s eye view of the stat The next set of witnesses produced by the prosecution was to establish the presence of accused Madhu and Sibi close to the scene of occurrence at or around the time of occurrence on 8.5.1998, as well as, matters associated there with. The most significant issue in the present controversy is the veracity of the confessional statements made by the accused Madhu and Sibi before P.J. Thomas PW21, Circle Inspector of Police on 13.5.1998. It is evident that the aforesaid statements were made by the accused before a police officer while the accused were in custody of the police. Section 25 of the Indian Evidence Act postulates that a confession made by an accused to a police officer cannot be proved against him. Additionally, Section 26 of the Indian Evidence Act stipulates that a confession made by an accused while in police custody cannot be proved against him. It is evident from the factual position narrated


hereinabove, that the statements made by the accused Madhu and Sibi were made to a police officer while the accused were in police custody. It is, therefore, apparent that in terms of the mandate of Sections 25 and 26 of the Indian Evidence Act, the said statements could not be used against accused Madhu and Sibi. But then, there is an exception to the rule provided for by Sections 25 and 26 aforesaid, under Section 27 of the Indian Evidence Act. Section 27 of the Indian Evidence Act is being extracted hereunder: Additionally, the charge-sheet pointedly records that Madhu-accused No. 1, caught hold of the plated hair and neck of Padmini Devi, and Sibi-accused No. 2 caught hold of her feet, and forcibly dragged her into the water and suffocated her thereby cause her death by drowning. This factual position remained unproved as not a single prosecution witness narrated the said factual position, so as to establish the manner in which Padmini Devi came to be drowned by the accused Madhu and Sibi. This issue has been examined from a different perspective in the next paragraph. For all the reasons recorded by us hereinabove, the Appellantaccused/Madhu, is liable to be acquitted of the charges levelled against him. Ordered accordingly. He be released forthwith, unless he is required to continue in detention in some other case. Resultantly, the instant appeal is allowed and the judgments rendered by the Trial Court, as also, by the High Court convicting the Appellant-accused/ Madhu are hereby set aside. an appeal so as to assail the impugned judgment whereby he stands convicted. In view of the ratio laid down in the two cases referred to above, we are satisfied, that to do complete justice, it would be just and appropriate to extend the same benefit as has been extended to the Appellant-accused/Madhu, also to Sibi- accused No. Therefore, for exactly the same reasons as have weighed with us in the instant appeal, to determine the acquittal of the Appellant-accused/Madhu, we hereby order the acquittal of Sibi-accused No. 2 as well, even though he has not preferred For the reasons recorded hereinabove, even Sibi-accused No. 2 is hereby acquitted. He be released forthwith, unless he is required to continue in detention in some other case.

Chapter 6

HAND CUFFING AND SECURITY

Rights of Arrested Person 1. Right to SilenceThe ‘right to silence’ is a principle of common law and it means that normally courts or tribunals of fact should not be invited or encouraged to conclude, by parties or prosecutors, that a suspect or an accused is guilty merely because he has refused to respond to questions put to him by the police or by the Court. The Justice Malimath Committee writes about the origin of the right to silence that “it was essentially the right to refuse to answer and incriminate oneself in the absence of a proper charge. Not initially, the right to refuse to reply to a proper charge.” The Justice Malimath Committee’s assumption is that the right to silence is only needed in tyrannical societies, where anyone can be arbitrarily charged. It assumes that whenever a charge is “proper”, there is no need for protection of the accused. In this backdrop it becomes necessary to examine the right to silence and its companion right against self-incrimination. These are the two aspects of fair trial and therefore cannot be made a subject matter of legislation. Right to fair trial is the basic premise of all procedural laws. The very prescription of procedure and the evolution of procedural law have to be understood in the historical context of the anxiety to substitute rule of men by rule of law. In law any statement or confession made to a police officer is not admissible. Right to silence is mainly concerned about confession. Breaking of silence by the accused can be before a magistrate but should be voluntary and without any duress or inducement. To ensure the truthfulness and reliability of the facts he stated the magistrate is required to take several precautions. Right to silence and the right against self-incrimination have been watered down quite considerably by interpretation than by legislation. The defendant if he so desires can be a witness in his trial. His confession outside the court either to the police officer or to the magistrate is admissible. He is encouraged to betray his colleagues in crime on promise of pardon. He is expected to explain every adverse circumstance to the court at the conclusion of evidence


with the court having jurisdiction to draw adverse inference while appreciating the evidence against him. The constitution of India guarantees every person right against self incrimination under Article 20 (3) “No person accused of any offense shall be compelled to be a witness against himself”. It is well established that the Right to Silence has been granted to the accused by virtue of the pronouncement in the case of Nandini Sathpathy vs P.L.Dani, no one can forcibly extract statements from the accused, who has the right to keep silent during the course of interrogation (investigation). By the administration of these tests, forcible intrusion into one’s mind is being restored to, thereby nullifying the validity and legitimacy of the Right to Silence. In 2010 The Supreme court made narco-analysis, brain mapping and lie detector test as a violation of Article 20(3). 2. Right To Know The Grounds of Arrest Firstly, according to Section 50(1) Cr.P.C. “every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.” Secondly, when a subordinate officer is deputed by a senior police officer to arrest a person under Section 55 Cr.P.C., such subordinate officer shall, before making the arrest, notify to the person to be arrested the substance of the written order given by the senior police officer specifying the offence or other cause for which the arrest is to be made. Non- compliance with this provision will render the arrest illegal. Thirdly, in case of arrest to be made under a warrant, Section 75 Cr.P.C. provides that “the police officer or other person executing a warrant of arrest shall notify the substance thereof to the person to be arrested, and if so required, shall show him the warrant.” If the substance of the warrant is not notified, the arrest would be unlawful. Indian constitution has also conferred on this right the status of the fundamental right. Article 22(2) of the constitution provides that “no person who is arrested shall be detained in custody without being informed as soon as may be, of the grounds of such arrest nor shall he be denied the right to consult, and to be defended by a legal practitioner of his choice.” The right to be informed of the grounds of arrest is a precious right of the arrested person. Timely information of the grounds of arrest serves him in many ways. It enables him to move the proper court for bail, or in appropriate circumstances for a writ of habeas corpus, or to make expeditious arrangement for his defence.

Hand Cuffing and Security 137

In re, Madhu Limaye the facts were: Madhu Limaye, Member of the Lok Sabha and several other persons were arrested. Madhu Limaye addressed a petition in the form of a letter to the Supreme Court under Article 32 mentioning that he along with his companions had been arrested but had not been communicated the reasons or the grounds for arrest. One of the contentions raised by Madhu Limaye was that there was a violation of the mandatory provisions of Article 22 (1) of the Constitution. The Supreme Court observed that Article 22 (1) embodies a rule which has always been regarded as vital and fundamental for safeguarding personal liberty in all legal systems where the Rule of Law prevails. The court further observed that the two requirements of Clause (1) of Article 22 are meant to afford the earliest opportunity to the arrested person to remove any mistake, misapprehension or misunderstanding in the minds of the arresting authority and, also to know exactly what the accusation against him is so that he can exercise the second right, namely of consulting a legal practitioner of his choice and to be defended by him. Whenever that is not done, the petitioner would be entitled to a writ of Habeas Corpus directing his release. Hence, the Court held that Madhu Limaye and others were entitled to be released on this ground alone. It appears reasonable to accept that grounds of the arrest should be communicated to the arrested person in the language understood by him; otherwise it would not amount to sufficient compliance with the constitutional requirement. The words “as soon as may be” in Article 22(1) would means as early as is reasonable in the circumstance of the case, however, the words “forthwith” in Section 50(1) of the code creates a stricter duty on the part of the police officer making the arrest and would mean “immediately”. If the arrest is made by the magistrate without a warrant under Section 44, the case is covered neither by any of the section 50, 55 and 75 nor by any other provision in the code requiring the magistrate to communicate the grounds of arrest to the arrested person. The lacuna in the code, however, will not create any difficulty in practice as the magistrate would still be bound to state the grounds under Article 22(1) of the Constitution. The rules emerging from decision such as Joginder Singh v. State of U.P. and D.K. Basu v. State of West Bengal, have been enacted in Section 50-A making it obligatory on the part of the police officer not only to inform the friend or relative of the arrested person about his arrest etc. but also to make entry in a register maintained by the police. The magistrate is also under an obligation to satisfy himself about the compliance of the police in this regard. 3. Information Regarding The Right To Be Released On Bail


Section 50(2) Cr.P.C. provides that “where a police officer arrests without warrant any person other than a person accused of a non- bailable offence, he shall inform the person arrested that he is entitled to be released in bail that he may arrange for sureties on his.” This will certainly be of help to persons who may not know about their rights to be released on bail in case of bailable offences. As a consequence, this provision may in some small measures, improve the relations of the people with the police and reduce discontent against them. 4. Right To Be Taken Before A Magistrate Without Delay Whether the arrest is made without warrant by a police officer, or whether the arrest is made under a warrant by any person, the person making the arrest must bring the arrested person before a judicial officer without unnecessary delay. It is also provided that the arrested person should not be confined in any place other than a police station before he is taken to the magistrate. These matters have been provided in Cr.P.C. under section 56 and 76 which are as given below: 56. Person arrested to be taken before Magistrate or officer in charge of police station- A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station. 76. Person arrested to be brought before Court without delay- The police officer or other person executing a warrant of arrest shall (subject to the provisions of section 71 as to security) without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person. Provided that such delay shall not, in any case, exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Cou 5. Right Of Not Being Detained For More Than 24 Hours Without Judicial Scrutiny Whether the arrest is without warrant or under a warrant, the arrested person must be brought before the magistrate or court within 24 hours. Section 57 provides as follows: 57. Person arrested not to be detained more than twenty-four hours- No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.


This right has been further strengthened by its incorporation in the Constitution as a fundamental right. Article 22(2) of the Constitution proves that “Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.” In case of arrest under a warrant the proviso to Section 76 provides a similar rule in substance. The right to be brought before a magistrate within a period of not more than 24 hours of arrest has been created with a view- i. To prevent arrest and detention for the purpose of extracting

confessions, or as a means of compelling people to give information; ii. To prevent police stations being used as though they were prisons- a

purpose for which they are unsuitable; iii. To afford to an early recourse to a judicial officer independent of the

police on all questions of bail or discharge. In a case of Khatri(II) v. State of Bihar, the Supreme Court has strongly urged upon the state and its police authorities to ensure that this constitutional and legal requirement to produce an arrested person before a Judicial Magistrate within 24 hours of the arrest be scrupulously observed. This healthy provision enables the magistrate to keep check over the police investigation and it is necessary that the magistrates should try to enforce this requirement and where it is found disobeyed, come heavily upon the police. If police officer fails to produce an arrested person before a magistrate within 24 hours of the arrest, he shall be held guilty of wrongful detention. In a case of Poovan v. Sub- Inspector of Police it was said that whenever a complaint is received by a magistrate that a person is arrested within his jurisdiction but has not been produced before him within 24 hours or a complaint has made to him that a person is being detained within his jurisdiction beyond 24 hours of his arrest, he can and should call upon the police officer concerned; to state whether the allegations are true and if so; on what and under whose custody; he is being so helped. If officer denies the arrest, the magistrate can make an inquiry into the issue and pass appropriate orders. 6. Rights at Trial i. Right To A Fair Trial- The Constitution under Article 14 guarantees the right to equality

before the law. The Code of Criminal Procedure also provides that for a trial to be fair, it must be an open court trial. This provision is


designed to ensure that convictions are not obtained in secret. In some exceptional cases the trial may be held in camera. Every accused is entitled to be informed by the court before taking the evidence that he is entitled to have his case tried by another court and if the accused subsequently moves such application for transfer of his case to another court the same must be transferred. However, the accused has no right to select or determine by which other court the case is to be tried.

ii. Right To A Speedy Trial- The Constitution provides an accused the right to a speedy trial.

Although this right is not explicitly stated in the constitution, it has been interpreted by the Hon’ble Supreme Court of India in the judgment of Hussainara Khatoon. This judgment mandates that an investigation in trial should be held “as expeditiously as possible”. In all summons trials (cases where the maximum punishment is two years imprisonment) once the accused has been arrested, the investigation for the trial must be completed within six months or stopped on an order of the Magistrate, unless the Magistrate receives and accepts, with his reasons in writing, that there is cause to extend the investigation

7. Right To Consult A Legal Practitioner Article 22(1) of the Constitution provides that no person who is arrested shall be denied the right to consult a legal practitioner of his choice. Further, as has been held by the Supreme Court that state is under a constitutional mandate (implicit in article 21) to provide free legal aid to an indigent accused person, and the constitutional obligation to provide free legal aid does not arise only when the trial commences but also attaches when the accused is for the first time produced before the magistrate, as also when remanded from time to time. It has been held by the Supreme Court that non- compliance with this requirement and failure to inform the accused of this right would vitiate the trial. Section 50(3) also provides that any person against whom proceedings are instituted under the code may of right be defended by a pleader of his choice. The right of an arrested person to consult his lawyer begins from the moment of his arrest. The consultation with the lawyer may be in the presence of police officer but not within his hearing. 8. Rights Of Free Legal Aid In Khatri(II) v. State of Bihar, the Supreme Court has held that the state is under a constitutional mandate (implicit in Article 21) to provide free legal aid to an indigent accused person, an and the constitutional obligation to provide free legal aid does not arise only when the trial commences but also attaches when the accused is for the first time produced before the magistrate, as also when remanded from time to time. However this constitutional right of


an indigent accused to get free legal aid may prove to be illusory unless he is promptly and duly informed about it by the court when he is produced before it. The Supreme Court has therefore cast a duty on all magistrates and courts to inform the indigent accused about his right to get free legal aid. The apex court has gone a step further in Suk Das v. Union Territory of Arunachal Pradesh, wherein it has been categorically laid down that this constitutional right cannot be denied if the accused failed to apply for it. It s clear that unless refused, failure to provide free legal aid to an indigent accused would vitiate the trial entailing setting aside of the conviction and sentence. 9. Right To Be Examined By A Medical Practitioner Section 54 now renumbered as Section 54(1) provides: 54. Examination of arrested person by medical practitioner at the request of the arrested person When a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time during the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offence or which will establish the commission by any other person of any offence against his body, the Magistrate shall, if requested by the arrested person so to do direct the examination of the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of justice. 10. Right Of The Accused To Produce An Evidence The accused even has right to produce witness in his defence in case of police report or private defence. After the Examination and cross examination of all prosecution witness i.e. after the completion of the prosecution case the accused shall be called upon to enter upon his defence and any written statement put in shall be filled with the record. He may even call further for cross examination. The judge shall go on recording the evidence of prosecution witness till the prosecution closes its evidence. The accused in order to test the veracity of the testimony of a prosecution witness has the right to cross-examine him. Section 138 of Indian Evidence Act, 1872 gives accused has a right to confront only witnesses. This right ensures that the accused has the opportunity for cross-examination of the adverse witness. Section 33 of Indian Evidence Act tells when witness is unavailable at trial, a testimonial statement of the witness maybe dispensed by issuing commission. The testimony at a formal trial is one example of prior testimonial statements which can be used as documentary evidence in a subsequent trial.


When in the course of investigation an accused or any other person desiring to make any statement is brought to a magistrate so that any confession or statement that he may be deposed to make of his free will is record. Confession statements by accused to the police are absolutely excluded under Section 25, Evidence Act. Judicial Pronouncements Joginder Kumar v. State of U.P In order to have transparency in the accused- police relations the Supreme Court held that right of arrested person upon request, to have someone informed about his arrest and right to consult privately with lawyers are inherent in Articles 21 and 22 of the Constitution. The Supreme Court observed that no arrest can be made because it is lawful for the Police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest should be made by Police Officer without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. The Supreme Court issued the following requirements: 1. An arrested person being held in custody is entitled, if he so requests, to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as practicable that he has been arrested and where is being detained. 2. The Police Officer shall inform the arrested person when he is brought to the police station of this right. 3. An entry shall be required to be made in the Diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22 (1) and enforced strictly. · D.K. Basu v. State of W.B The frequent instances of police atrocities and custodial deaths have promoted the Supreme Court to have a review of its decisions like Joginder Kumar, Nilabati Behera etc. Therefore, the Supreme Court issued in the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures.


1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. 2. That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. 3. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. 4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. 5. The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. 6. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is. 7. The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any, present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee. 8. The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody, by a doctor in the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory. Director, Health Services should prepare such a panel for all Tehsils and Districts as well. 9. Copies of all the documents including the memo of arrest, referred to above, should be sent to illaqa Magistrate for his record.


10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. 11. A police control room should be provided at all Districts and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the Officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. The Court emphasized that failure to comply with the said requirements shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of Court and the proceedings for contempt of Court may be instituted in any High Court of the country, having territorial jurisdiction over the matter. The requirements flow from Articles 21 and Article 22 (1) of the Constitution and need to be strictly followed. The requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the Courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee.

1 Appellants: National Legal Services Authority

Vs. Respondent: Union of India (UOI) and Ors.

Decided on: 15.04.20141

Facts- Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex. Our society often ridicules and abuses the Transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as untouchables, forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change. We are, in this case, concerned with the grievances of the members of Transgender Community (for short ‘TG community’) who seek a legal declaration of their gender identity than the one assigned to them, male or female, at the time of birth and their prayer is that non-recognition of their

1. AIR 2014 SC 1863.


gender identity violates Articles 14 and 21 of the Constitution of India. Hijras/Eunuchs, who also fall in that group, claim legal status as a third gender with all legal and constitutional protection. The National Legal Services Authority, constituted under the Legal Services Authority Act, 1997, to provide free legal services to the weaker and other marginalized sections of the society, has come forward to advocate their cause, by filing Writ Petition No. 400 of 2012. Poojaya Mata Nasib Kaur Ji Women Welfare Society, a registered association, has also preferred Writ Petition No. 604 of 2013, seeking similar reliefs in respect of Kinnar community, a TG community. Laxmi Narayan Tripathy, claimed to be a Hijra, has also got impleaded so as to effectively put across the cause of the members of the transgender community and Tripathy’s life experiences also for recognition of their identity as a third gender, over and above male and female. Tripathy says that non-recognition of the identity of Hijras, a TG community, as a third gender, denies them the right of equality before the law and equal protection of law guaranteed Under Article 14 of the Constitution and violates the rights guaranteed to them Under Article 21 of the Constitution of India. The court held that Shri Raju Ramachandran, learned senior Counsel appearing for the Petitioner-the National Legal Services Authority, highlighted the traumatic experiences faced by the members of the TG community and submitted that every person of that community has a legal right to decide their sex orientation and to espouse and determine their identity. Learned senior counsel has submitted that since the TGs are neither treated as male or female, nor given the status of a third gender, they are being deprived of many of the rights and privileges which other persons enjoy as citizens of this country. TGs are deprived of social and cultural participation and hence restricted access to education, health care and public places which deprives them of the Constitutional guarantee of equality before law and equal protection of laws. Further, it was also pointed out that the community also faces discrimination to contest election, right to vote, employment, to get licences etc. and, in effect, treated as an outcast and untouchable. Learned senior counsel also submitted that the State cannot discriminate them on the ground of gender, violating Articles 14 to 16 and 21 of the Constitution of India. Shri Raju Ramachandran, learned senior Counsel appearing for the Petitioner-the National Legal Services Authority, highlighted the traumatic experiences faced by the members of the TG community and submitted that every person of that community has a legal right to decide their sex orientation and to espouse and determine their identity. Learned senior counsel has submitted


that since the TGs are neither treated as male or female, nor given the status of a third gender, they are being deprived of many of the rights and privileges which other persons enjoy as citizens of this country. TGs are deprived of social and cultural participation and hence restricted access to education, health care and public places which deprives them of the Constitutional guarantee of equality before law and equal protection of laws. Further, it was also pointed out that the community also faces discrimination to contest election, right to vote, employment, to get licences etc. and, in effect, treated as an outcast and untouchable. Learned senior counsel also submitted that the State cannot discriminate them on the ground of gender, violating Articles 14 to 16 and 21 of the Constitution of India. Sexual orientation refers to an individual’s enduring physical, romantic and/or emotional attraction to another person. Sexual orientation includes transgender and gender-variant people with heavy sexual orientation and their sexual orientation may or may not change during or after gender transmission, which also includes homosexuals, bisexuals, heterosexuals, asexual etc. UN bodies, Regional Human Rights Bodies, National Courts, Government Commissions and the Commissions for Human Rights, Council of Europe, etc. have endorsed the Yogyakarta Principles and have considered them as an important tool for identifying the obligations of States to respect, protect and fulfill the human rights of all persons, regardless of their gender identity. United Nations Committee on Economic, Social and Cultural Rights in its Report of 2009 speaks of gender orientation and gender identity We have referred exhaustively to the various judicial pronouncements and legislations on the international arena to highlight the fact that the recognition of “sex identity gender” of persons, and “guarantee to equality and non-discrimination” on the ground of gender identity or expression is increasing and gaining acceptance in international law and, therefore, be applied in India as well. Historical background of Trans genders in India has already been dealt in the earlier part of this judgment indicating that they were once treated with great respect, at least in the past, though not in the present. We can perceive a wide range of transgender related identities, Article 253 of the Constitution of India states that the Parliament has the power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention. Generally, therefore, a legislation is required for implementing the international conventions, unlike the position in the United States of America where the rules of international law are applied by the municipal courts on the theory of their implied adoption by the State, as a part of its own municipal law. Article VI, Clause


(2) of the U.S. Constitution Recognition of one’s gender identity lies at the heart of the fundamental right to dignity. Gender, as already indicated, constitutes the core of one’s sense of being as well as an integral part of a person’s identity. Legal recognition of gender identity is, therefore, part of right to dignity and freedom guaranteed under our Constitution Articles 14,15,16,19 and 21 above discussion, would indicate, do not exclude Hijras/Transgenders from its ambit, but Indian law on the whole recognize the paradigm of binary genders of male and female, based on one’s biological sex. As already indicated, we cannot accept the Corbett principle of “Biological Test The genesis of this recognition lies in the acknowledgment of another fundamental and universal principal viz. “right of choice” given to an individual which is the inseparable part of human rights. It is a matter of historical significance that the 20th Century is often described as “the age of rights”. The rule of law is not merely public order. The rule of law is social justice based on public order. The law exists to ensure proper social life. Social life, however, is not a goal in itself but a means to allow the individual to life in dignity and development himself. The human being and human rights underlie this substantive perception of the rule of law, with a proper balance among the different rights and between human rights and the proper needs of society. The substantive rule of law “is the rule of proper law, which balances the needs of society and the individual.” This is the rule of law that strikes a balance between society’s need for political independence, social equality, economic development, and internal order, on the one hand, and the needs of the individual, his personal liberty, and his human dignity on the other. It is the duty of the Court to protect this rich concept of the rule of law.

2 Appellants: State of Uttaranchal

Vs. Respondent: Balwant Singh Chaufal and Ors

Decided on: 18.01.20102

Facts These appeals have been filed by the State of Uttaranchal (now Uttarakhand) against the orders dated 12.7.2001 and 1.8.2001 passed by the Division Bench of the High Court of Uttaranchal at Nainital in Civil Miscellaneous Writ Petition No. 689 (M/B) of 2001.

2. AIR 2010 SC 2550.


The appointment of L. P. Nathani was challenged before the High Court in a Public Interest Litigation on the ground that he could not hold the august Office of the Advocate General of Uttarakhand in view of Article 165 read with Article 217 of the Constitution. According to the respondent, Mr. Nathani was ineligible to be appointed as the Advocate General because he had attained the age of 62 years much before he was appointed as the Advocate General. The High Court entertained the petition and directed the State Government to take decision on the issue raised within 15 days and apprise the same to the High Court. The State of Uttaranchal preferred special leave petitions before this Court on 6.8.2001. This Court vide order dated 9.8.2001 stayed the operation of the impugned judgment of the High Court. Thereafter on 11.2.2002, this Court granted leave and directed that the stay already granted shall continue It may be pertinent to mention that, despite the service of notice, the respondents who had initially filed the writ petition before the High Court challenging the appointment of Nathani as the Advocate General did not appear before this Court. This clearly demonstrates the non- seriousness and non-commitment of the respondents in filing the petition. Before we proceed to examine the controversy involved in this case, we deem it appropriate to set out Articles 165 and 217 of the Constitution dealing with the post of the Advocate General and the qualifications for appointment to this post in the Constitution. Article 165 which deals with the appointment of the Advocate General for the States Article 217 which deals with the appointment and the conditions of the office of a Judge of a High Court The court held that- The Division Bench of the High Court in the impugned judgment observed that the first clause of Article 165 insists that the Governor shall appoint a person as the Advocate General who is qualified to be appointed as a Judge of a High Court. The qualifications for the appointment of a Judge of a High Court are prescribed in the second clause of Article 217. It is true that the first clause of Article 217 says that a Judge of a High Court “shall hold office until he attains the age of 60 years” (at the relevant time the age of retirement of a Judge of the High Court was 60 years and now it is 62 years). The Division Bench further held that the real question then was whether this provision is to be construed as one prescribing a qualification or as one prescribing the duration of the appointment of a Judge of a High Court. It was further held that as the provision does not occur in the second clause, it can only be construed as one prescribing the duration of the appointment of a Judge of a High Court. The Court further observed that the provisions about duration in the first clause of Article 217 cannot be made


applicable to the Advocate General because the Constitution contains a specific provision about the duration of the appointment of the Advocate General in the third clause of Article 165 which says that the Advocate General shall hold office during the pleasure of the Governor. This provision does not limit the duration of the appointment by reference to any particular age, as in the case of a Judge, it is not permissible to import into it the words “until he attains the age of sixty years”. The specific provision in the Constitution must, therefore, be given effect to without any limitation. If a person is appointed as an Advocate General, say at the age of fifty-five years, there is no warrant for holding that he must cease to hold his office on his attaining sixty two years because it is so stated about a Judge of a High court in the first clause of Article 217. If that be a true position, as we hold it is, then the appointment is not bad because the person is past sixty two years, so long as he has the qualifications prescribed in the second clause of Article 217. The State of Uttrakhand was a part of the State of U.P. a few years ago. In the State of U.P., a large number of Advocate Generals appointed were beyond 62 years of age at the time of their appointment. The petitioner, a local practicing lawyer, ought to have bestowed some care before filing this writ petition in public interest under Article 226 of the Constitution In our considered view, it is a clear case of the abuse of process of court in the name of the Public Interest Litigation. In order to curb this tendency effectively, it has now become imperative to examine all connected issues of public interest litigation by an authoritative judgment in the hope that in future no such petition would be filed and/or entertained by the Court. The High Courts followed this Court and exercised similar jurisdiction under Article 226 of the Constitution. The courts expanded the meaning of right to life and liberty guaranteed under Article 21 of the Constitution. The rule of locus standi was diluted and the traditional meaning of `aggrieved person ‘was broadened to provide access to justice to a very large section of the society which was otherwise not getting any benefit from the judicial system. We would like to term this as the first phase or the golden era of the public interest litigation. We would briefly deal with important cases decided by this Court in the first phase after broadening the definition of `aggrieved person’. We would also deal with cases how this Court prevented any abuse of the public interest litigation? There are a number of cases where the court tried to protect forest cover, ecology and environment and orders have been passed in that respect. As a matter of fact, the Supreme Court has a regular Forest Bench (Green Bench) and regularly passes orders and directions regarding various forest cover,


illegal mining, destruction of marine life and wild life etc. Reference of some cases is given just for illustration. In the second phase, the Supreme Court under Article 32 and the High Court under Article 226 of the Constitution passed a number of orders and directions in this respect. The recent example is the conversion of all public transport in the Metropolitan City of Delhi from diesel engine to CNG engine on the basis of the order of the High Court of Delhi to ensure that the pollution level is curtailed and this is being completely observed for the last several years. Only CNG vehicles are permitted to ply on Delhi roads for public transport.

3 Appellants: Hardeep Singh

Vs. Respondent: State of Madhya Pradesh

Decided on: 05.12.20113

Facts The Appellant, Hardeep Singh was engaged in running a coaching centre, called “Deepika Classes” where students were given tuition to prepare them for entrance tests for different professional courses. On June 8, 1992, it was reported to the Collector, Jabalpur, and Raghav Chandra that the Appellant had asked some of his students to pay him Rs. 50,000 /- for giving them the question papers for the pre- medical test in three subjects. The Collector decided to set up a trap for catching the Appellant. The complainant before the Collector had with him only Rs. 10,000/- at that time. The Collector, therefore, called the City Magistrate and instructed him to take out Rs. 10,000/- from the Collectorate Nazarat. The currency notes taken out from the Nazarat were marked and the decoy was sent to pay to the Appellant Rs. 20,000/-, including the money taken out from the Nazarat. Then a raid was conducted at the house of the Appellant in which Rs. 20,000/- with the marked currency notes of Rs. 10,000/- were recovered. The Appellant was arrested and a criminal case (Criminal case No. 314 of 2004) was instituted against him under Section 420 read with Section 34 of the Indian Penal Code and under Section 3/4 of The [Madhya Pradesh] Recognized Examinations Act, 1937. He was brought to the police station in handcuffs and his photographs in handcuffs appeared in the local newspapers. The police submitted charge sheet in the case on the basis of which the Appellant was put up on trial. The trial went on, as is not uncommon in this country for several years at the end of which he was acquitted on August 26, 2004. 3. AIR 2012 SC 1751.


Even while facing the trial, the Appellant filed a complaint before the Judicial Magistrate First Class at Jabalpur (which was registered as Criminal Case No. 66/2000) alleging that the Collector Raghav Chandra and Ors. Government functionaries, named as accused in the complaint had committed offences punishable under Sections 395, 468, 469 read with Section 34 of the Indian Penal Code. The Appellant’s complaint was also based on the raid conducted by the Collector along with the police officials at his house on June 8, 1992. The learned Magistrate dismissed the complaint for want of sanction under Section 197 of the Code of Criminal Procedure, 1973. Against the order dismissing the complaint, the Appellant moved the Sessions Court in revision. The revision was allowed and as directed by the Sessions Court the Appellant’s complaint came to be registered. The court held that The accused in the complaint filed by the Appellant then moved the High Court in a quashing application (Miscellaneous Criminal Case No. 1676/2000) and the High Court by order dated September 17, 2002 allowed the application holding that the complaint was not maintainable against the public servants in the absence of sanction under Section 197 Code of Criminal Procedure. The Appellant challenged the order of the High Court before this Court in SLP(C) No. 179/2003, but it was dismissed in limine. 6. The Appellant, then, moved the State Government for grant of sanction under Section 197 Code of Criminal Procedure. for prosecution of Raghav Chandra and the other Government officers named as accused in his complaint. The State Government, however, refused to give sanction and rejected his application by order dated December 12, 2006. We have heard the Appellant at length, who appeared in person. We have also carefully gone through the materials on record. We find that the Division Bench of the High Court on a detailed examination of the matter found and held that there was no material to suggest even a prima facie case against the Collector, Jabalpur, and the other Government officers accused by the complainant and, therefore, there was no ground to interfere with the decision of the State Government not to accord sanction for their prosecution. We find the view taken by the High Court is unexceptionable and there is no scope for any interference in the matter. We, accordingly, dismiss the appeal arising from Special Leave Petition (criminal) No. 1658 of 2010. The Division Bench further held that there was no warrant for putting the Appellant under handcuffs. His handcuffing was without justification and it had not only adversely affected his dignity as a human being but had also led to unfortunate and tragic consequences. But on that issue we cannot help him at all. It is now concluded by an order of this Court that the complaint filed by the Appellant cannot proceed in the


absence of sanction by the government for prosecution of the accused named in the complaint. The State Government has declined to grant sanction and the High Court has rightly found that the order of the State Government does not suffer from any infirmity and does not warrant any interference by the court. The prayer of the Appellant, therefore, to send the accused behind bars cannot be entertained. In the result, criminal appeal arising from SLP (Criminal) No. 1658 of 2010 is dismissed and criminal appeal arising from SLP (Criminal) D No. 23364 of 2008 is allowed to the extent stated above.

4 Appellants: Priya Gupta and Anr.

Vs. Respondent: Addl. Secy. Ministry of Health and Family Welfare and

Ors. Decided on: 13.12.20124

Facts While disposing of the Civil Appeal No. 4318 of 2012 titled Priya Gupta v. State of Chhatisgarh and Ors., the Court not only noticed breach of time schedule as well as various other irregularities that were committed by the various stakeholders, but also returned a finding as to failure of the performance of duties and obligations by the authorities in accordance with law as stated by this Court. The Court noticed that the case in hand was a clear example of calculated tampering with the schedule specified under the Regulations, and the judgments of the Court with a clear intention to grant admission to less meritorious candidates over candidates of higher merit. To put it simply, it was a case of favoritism and arbitrariness. The case in hand also demonstrates how either way the career of the students of higher merit has been jeopardized by the abuse and manipulation of provided procedure. In furtherance to the judgment dated 8th May, 2012, the Court initiated proceedings against the above defaulting persons under the Act and directed issuance of notice. Upon appearance, time was prayed for on behalf of the contemnors to file their reply affidavits and after they were filed, the contemnors were heard at some length by the Court. The stand taken by the respective contemnors is distinct and independent. However, the stand of contemnors “C” to “F” is somewhat common, therefore, it would be appropriate for the Court to deal with the case of these contemnors together. The case of contemnors ‘A’ and ‘G’ is to be considered together and finally that of contemnor ‘B’ will be dealt with separately. First and foremost, we 4. 2013 (1) ALD 174 (SC).


would deal with the case of Dr. S.L. Adile, whose daughter Akansha Adile is the direct beneficiary of this entire process. In the affidavit filed by Dr. Adile, it has been averred that he was working as a Professor of Ophthalmology in the Medical College, Raipur till 1st August, 2006 and Dean thereafter in the same college. The Director of Medical Education, Chhatisgarh (Dr. Bhola) retired on 31stAugust, 2006 and being the senior, Dr. Adile was asked to relieve Dr. Bhola, on 8th September, 2006 temporarily. This is how he came to be appointed as the Director of Medical Education. The findings recorded in the order against him which includes violation of schedule, moulding the process of selection to select his daughter and actually providing her a seat in the Medical College, Raipur has not been disputed. However, it is stated that he tenders an unconditional apology to the Court for all the acts of omission and commission mentioned in the order dated 8th May, 2012. He prays for the mercy of the Court on the ground that he was under suspension for last two years i.e. since 23rd July, 2010 and has suffered already. His daughter was also asked to pay Rs. 5 lakhs, if she was to continue her course in terms of the order dated 8th May, 2012, and therefore, he prays for discharge. The court held that Mr. Mukul Rohtagi, the learned senior Counsel appearing for Dr. S.L. Adile argued in principle that the Court may take a lenient view and discharge the notice of contempt against the contemnor in view of his unconditional, unqualified apology being tendered at the very first instance. The apology tendered is bona fide and, thus, should be accepted by the Court. Explanation to Section 12(1) places an obligation upon the Court to consider apology in a very objective manner and further provides that the Court shall not reject the same merely on the ground of it being qualified or conditional if it is made bonafidely. It is also to be noticed that the Secretary, Ministry of Health has specifically disputed that the letter dated 8thAugust, 2006 was not issued by the Ministry and is a manipulated one. This is the letter that has been relied upon by Dr. Adile. Of course, subsequently the said stand was given up by him. Tendering an apology is not a satisfactory way of resolving contempt proceedings. An apology tendered at the very initial stage of the proceedings being bona fide and preferably unconditional would normally persuade the Court to accept such apology, if this would not leave a serious scar on the dignity/authority of the Court and interfere with the administration of justice under the order. Now, we shall proceed to discuss the legal issues raised on behalf of the contemnor that in such cases, the proceedings under the Act cannot be taken recourse to. It is true that Section 12 of the Act contemplates disobedience of the orders of the Court to be wilful and further that such violation has to be of a specific order or direction of the Courts of the Court.


However, the Court did not punish them primarily on the ground that they were young judicial officers and had ignored the order of the Court. The directions of this Court in the case of Prem Shankar Shukla v. Delhi Administration [(1980) 3 SCC 526] issuing guidelines prohibiting such handcuffing itself were, in that sense, of a general nature and this Court clearly held that they were required to be obeyed without exception. Having considered the entire spectrum of the matter, we are of the considered view that the ends of justice would be met by issuing a warning to both these contemnors and not to punish them with fine or imprisonment. They should be more careful in discharge of their functions and duties in accordance with the judgment of this Court and we further direct them to ensure circulation of this judgment as well as the judgment of Priya Gupta’s case to all the Directors, Health Services of the respective States, Deans of the Universities holding the selection/examination or admission process for MBBS/BDS courses as well as to the Dean of all the colleges. In result of the above discussion, contemnor Dr. S.L. Adile, Amrita Banerjee, Dr. Sanjivani Wanjari, Dr. P.D. Agrawal and Mr. Padmakar Sasane are hereby punished and awarded the sentence of fine of Rs. 2,000/- each. The fine should be deposited within four weeks from today. In the event of default, they shall be liable to undergo civil imprisonment for a period of two weeks. The notice of contempt against them is discharged, however, subject to the observations aforesaid.

5 Appellants: Sadashio Mundaji Bhalerao

Vs. Respondent: State of Maharashtra

Decided on: 28.11.20065

Facts These appeals are directed against the order dated 17.1.2005 passed by the Division Bench of the Bombay High Court at Nagpur Bench in Criminal Appeal No. 242 of 1996 whereby the Division Bench has reversed the acquittal of all the accused- appellants and convicted them under Sections 302 read with Section 34 of the Indian Penal Code ( for short, ‘IPC’) and sentenced them to suffer life imprisonment. The Division Bench also directed payment of fine of Rs.30,000/- each by original accused Nos.1,2 & 3; Rs.15,000/- by original accused No.6; Rs.10,000/- each by original accused Nos.10, 11, 13, 15, 16 & 17. In default of payment of fine, they were also directed to undergo rigorous imprisonment for five years. So far as the 5. AIR 2007 SC 1028.


offence under Section 201 read with 34, IPC was concerned, the original accused Nos. 1, 2, 3, 6, 10, 11, 13, 15, 16 & 17 were sentenced to undergo rigorous imprisonment for five years. Original accused Nos.1 to 3 were directed to pay a fine of Rs.10,000/- each; accused No.6 to pay fine of Rs.5,000/- and accused Nos.10,11,13,15,16 & 17 were directed to pay a fine of Rs.2,500/- each. In default of payment of fine, they were to suffer further rigorous imprisonment for two years. The substantive sentences under Section 302 read with 34, I.P.C. and under Section 201 read with Section 34, I.P.C. were directed to run concurrently. Hence, the present appeals by the accused-appellants. Brief facts giving rise to filing of the present appeals are that the deceased Dilip along with other suspects were involved in a dacoity case which took place in the village Takarheda within the jurisdiction of Police-station, Arvi. One Namdeo Tulshiram Taywade, filed a complaint to this effect that the alleged dacoity has taken place in his house in which the inmates of the house were injured and certain ornaments had been taken away from his house. On the basis of this report, a case was registered on 24.10.1987 against unknown persons under Sections 395, 397 & 398, IPC vide Crime No.254 of 1987. The investigation of the case was taken over by P.I. Bhadikar the accused appellant. During the course of investigation, on 5.11.1987 the police arrested seven persons namely (1) Bastam Devidas Pawar, (2) Comrade Bhimrao Pawar, (3) Dilip Khusmya Ghosale, (4) Chaubharat Ramchandra Ghosale, (5) Partya Khusmya Ghosale, (6) Navbharat Ramachandra Ghosale and (7) Gangacharan Sukhadeo Pawar. The police arrested these persons and sought for judicial remand from the Judicial Magistrate for the purpose of investigation. The police was granted custody remand for seven days for the purpose of recovery of weapons of offence as well as stolen property. Till this time there was no complain of any ill- treatment of the accused. After taking remand from the Magistrate, the accused persons brought them to the Police-station. The court held that This is one of the unfortunate case where the deceased has died in the police custody. We are conscious that such incidents of suspect dying in the police custody has lately increased. This is an unfortunate scenario. But nonetheless we have to examine the matter objectively though keeping in mind the fact that the accused involved in all these appeals are nobody else that the Police officers and the investigation was being undertaken by their colleagues only. therefore, we have to examine all the aspects objectively keeping in mind the fact that the accused involved in the present appeals are nobody else but the colleagues of another investigating agency On the night intervening between 5.11.1987 and 6.11.1987 when all the accused above mentioned were in police custody on remand by the Magistrate, the police was


interrogating all the accused at the Police-station, Arvi. Dilip Khusmya Ghosale (hereinafter to be referred to as ‘Dilip’) who was one of the Suspects in the aforesaid crime was taken up from the police lock up to Detection Branch room for interrogation by some of the accused- appellants and it is alleged that his hands were tied down and he was administered beating by kicks and fist blows and during this interrogation, Dilip died in the Detection Branch center. It is alleged that though Dilip died on account of beating , but in order to cover up this fact, the police registered a case under Section 224, IPC on 6.11.1987 at 2.15 O’ clock that the accused- Dilip has escaped from the police custody and thereafter wireless message was sent all over the State describing the general features of the accused-Dilip. The case of the prosecution was that he was taken for interrogation in the interrogation room on the relevant date and he expired and in order to substantiate the allegation, the prosecution produced some of the witnesses who were already in the custody along with accused- Dilip, namely; P.Ws. 2,3,4& 5. These witnesses alleged that deceased Dilip was detained along with them and Dilip was being taken with his hands tied for interrogation and he was administered beating and he shouted for sometime but after some time no shouting was heard and thereafter the deceased died. The police prepared a defence that the accused escaped from the Police- station and therefore, registered a case being crime No.624/87 under Section 224, IPC on 6.11.1987. The first part of the evidence has to be closely examined whether the testimony of these witnesses is to be accepted and to what extent ? P.W.2 was an accused who was being prosecuted under Sections 302 & 307, IPC. He was also arrested along with the deceased Dilip and another accused detained in the police custody. Other accused were also there with him i.e. Babarao Naware and Sadashiv Uike involved in some other crime. He deposed that there is a police lock up which is separate from the Magistrate lock up. The distance between the two is 30 feet. It was pointed out that firstly no evidence had been led to show what was the height of the window from where these eye witnesses could see the beating to the deceased. Some witnesses state that some accused persons took the deceased by handcuffing with the rope in the D.B. room where they heard the shouting. But some said beating took place in open place near the temple. It was pointed out that there was no unanimity among the prosecution witnesses that who beat the deceased and how; whether all the 17 accused persons who were charged were all involved in beating to the deceased or some of them were involved in beating. therefore, learned Counsel has submitted that this kind of omissions in evidence cannot be accepted for convicting all the 17 accused of the P.S., Arvi, though the High Court has wrongly accepted their testimony on the face of it.


on 10.11.1987 though he admitted that the prints were not visible and these finger prints were sought to be corroborated with the receipt which was produced by P.W.5 which also bears the finger print of the deceased Dilip. For this the prosecution has also led evidence of P.W.10, the scribe of the receipt and P.W.11. Both the witnesses turned hostile. Consequently, it is very doubtful how could the receipt given to the purchaser was with the seller i.e. Dilip which was scribed by P.W.10 and it was said to be in possession of P.W.5, the brother of the deceased and the explanation was that his mother gave it to him. The thumb impression of Dilip in the said receipt was sought to be connected with the finger prints of the deceased taken by P.W.22. P.W.22 obtained the same with spoon method of right hand thumb impression and left hand thumb impression of the deceased which was in highly decomposed condition, dermis and epidermis of fingers were not found. As a result of our above discussion we are of opinion that the view taken by the Division Bench of the High Court in reversing the judgment of Second Additional Sessions Judge, does not appear to be well founded. Normally, the appellate court is very slow in interfering with the order of acquittal unless there are compelling circumstances to do so. After going through the judgment of the trial court, we are of opinion that the view taken by the trial court appears to be just and proper in the given facts and circumstances of the case and it was not proper for the Division Bench of the High Court to reverse the finding. We are satisfied that the reasons given by the High Court in reversing the order of acquittal of the accused persons are not cogent and does not appeal to the reason so as to justify the conviction of the appellants. Hence, we allow the appeals filed by the appellants and set aside the impugned judgment of the High Court and affirm the judgment of the trial court and acquit all accused- appellants from the charges. The appellants shall be released forthwith if they are not required in any other case.

Chapter 7

REMAND

Police Remand 167. Procedure when investigation cannot be completed in twenty-four hours. (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom all accused person is forwarded under this section may, whether he has or not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that- 1[(a) The Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding- (i) Ninety days, where the investigation relates to an offence punishable

with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) Sixty days, where the investigation relates to any other offence,

Remand 159

And, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be to released under the provisions of Chapter XXXIII for the purposes of that Chapter;]

(b) No Magistrate shall authorize detention in any custody under this section unless the accused is produced before him; (c) No Magistrate of the second class, not specially empowered in this behalf by the high Court, shall authorize detention in the custody of the police. 2[Explanation I. For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in Custody so long as he does not furnish bail.] 3[Explanation II].If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorizing detention. 2[(2A) Notwithstanding, anything contained in sub-section (1) or sub-section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, lot reasons to be recorded in writing, authoress the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and on the expiry of the period of detention so authorized, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2): Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together was a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.]


(3) A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing. (4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate. (5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary. (6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify. 1. Subs, by Act 45 of 1978, sec. 13, for paragraph (a)(w.e.f. 18-12-1978). 2. Ins. by Act 45 of 1978, sec. 13 (w.e.f. 18-12-1978). 3. Original Explanation numbered as Explanation II by Act 45 of 1978,

sec. 13 (w.e.f.18-12-1978). STATE AMENDMENTS Andaman and Nicobar Islands and Lakshadweep: In section 167, – (i) In sub-section (1) after the words “nearest Judicial Magistrate” the

words “or, if there is no Judicial Magistrate in an island, to an Executive Magistrate functioning in that island” shall be inserted;

(ii) After sub-section (1), the following sub-section shall be inserted, namely.

“(1A) Where a copy of the entries in diary is transmitted to an Executive Magistrate, reference in section 167 to a Magistrate shall be construed as references to such Executive Magistrate;” (iii) To sub-section (3), the following proviso shall be added, namely. “Provided that no Executive Magistrate other than the District

Magistrate or Sub-divisional Magistrate, shall unless he is specially

Remand 161

empowered in this behalf by the State Government authorize detention in the custody of the police.”

(iv) To sub-section (4), the following proviso shall be added, namely. “Provided that, where such order is made by an Executive Magistrate,

the Magistrate making the order shall forward a copy of the order, with his reasons for making it, to the Executive Magistrate to whom he is immediately subordinate.”

[Vide Regulation 1 of 1974, sec. 5 (w.e.f. 30-3-1974)]. Gujarat: In the proviso to sub-sec. (2) of section 167, – (i) For paragraph (a), the following paragraph shall be substituted,

namely. “(a) The Magistrate may authorize detention of the accused person

otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorize the detention of the accused person in custody under this section for a total period exceeding-

(i) One hundred and twenty days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years.

(ii) If sixty days, where the investigation relates to any offence: And on the expiry, of the said period of one hundred and twenty

days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this section shall be deemed to be so released under tire provisions of Chapter XXXIII for the purposes at that Chapter;

(ii) In paragraph (b), for the words “ no Magistrate shall” the words “no Magistrate shall, except for reason to be recorded in writing” shall be substituted:

(iii) The Explanation shall be numbered as Explanation II and before Explanation II as so remembered, the following Explanation shall be inserted, namely.

Explanation 1 – For the avoidance of’ doubts, it is hereby, declared that, not withstanding the expiry of’ the period specified in paragraph (a) the accused person shall be detained in custody so long as he does not furnish bail.


Amendment to apply to pending investigation.-The provisions of’ section 167 of the Code of Criminal Procedure, 1973, as amended by this Act, shall apply to every investigation pending immediately, before the commencement of this Act. If the period of’ of detention of’ the accused person, otherwise than in the custody of the police authorised under that section, had not, at such commencement, exceeds sixty days. [Vide President Act 21 of’ 1976 (w.e.f. 7-5-1976)]. [Ed. These amendments have been made prior to the enactment of the Code of Criminal Procedure (Amendment) Act, 1978 (Central Act 45 of 1978), sec. 13 (w.e.f. 18-12-1978)]. Haryana: After section 167, insert the following section namely. “167A.-Procedure on arrest by Magistrate.- For the avoidance of doubt, it is hereby declared that the provisions of’ section 167 shall, so far as may be, apply also in relation to any person arrested by, or under any order or direction of, Magistrate whether executive or Judicial” [Vide President Act 20 of 1981, sec. 2 (w.e.f.22-12-1981)]. Orissa: In section 167, in paragraph (a) of the proviso to sub-section (2),- (i) for the words “under this paragraph” the words “ under this section”

shall be substituted; and (ii) for the words “ninety days” wherever they occur, the words “one

hundred and twenty days” shall be substituted

1 Devender Kumar and another etc.

Vs. State of Haryana others etc.

Decided on: 5 May 20101

Facts These Appeals arise out of the judgment and order passed by the Punjab & Haryana High Court on 19th March, 2010, in Crl.M. Nos.28847 and 28849 of 2008, allowing the application filed by the Station House Officer, Hodal Police Station, praying for police remand of the accused, Devender Kumar, for three days.

1. Ind law SC 382, (2010).

Remand 163

It appears that when the Appellant No.1, Devender Kumar, was produced before the Judicial Magistrate, Palwal on 8th October, 2008, in connection with case FIR No.333 dated 18th September, 2008, registered at Hodal Police Station, District Faridabad under Sections 498A, 406, 506, 323 read with Section 34 IPC, an application was made for police remand by an officer of the rank of Assistant Sub-Inspector, which was rejected vide an order dated 8.10.2008, as the said application was contrary to the provisions of Section 167(1) Cr.P.C. which provide that an application for police remand can be made only by an officer not below the rank of Sub-Inspector. Accordingly, the Appellant No.1 was remanded to judicial custody and was directed to be produced on 22nd October, 2008. Subsequently, however, the position was rectified and as indicated hereinabove, an application was made by the S.H.O., Hodal, on 9th October, 2008, praying for grant of police remand of the accused/appellant Devender Kumar for a period of three days. It was mentioned therein that custodial interrogation of the accused was necessary for recovery of the dowry articles. The said application was dismissed by the learned Judicial Magistrate on 10th October, 2008. The learned Magistrate granted bail to Appellant No.1 by another order dated 10th October, 2008. The Respondent No.4, Kavita alias Shama, filed Criminal Misc. No.28847-M and 28849-M of 2008 in the High Court of Punjab and Haryana praying for cancellation of the bail granted to the appellants. She also prayed for quashing of the orders dated 8.10.2008 and 10.10.2008 by which the application for remand of Appellant No.1 had been rejected. By the impugned order dated 19th March, 2010, the High Court allowed the Criminal Misc. Petitions and quashed the orders dated 8.10.2008 and 10.10.2008 upon holding that Devender Kumar, the Appellant No.1 herein, had made a disclosure statement that dowry articles had been given to him and those articles were lying in his house at Delhi, which could be identified and recovered. Aggrieved by the order dated 19.3.2010 passed by the High Court in Criminal Misc. Nos. 28847-M and 28849-M of 2008, the appellants have filed this appeal. The court held thatThere is no allegation either that the Appellants had made themselves unavailable to the investigating agency after being released on bail. It was urged that despite the above, the High Court allowed the prayer for police remand simply upon observing that the Appellant No.1 made disclosures during investigation that the dowry articles which were given to him were lying in his house at Delhi which could be identified and recovered. A further contention was raised by Mr. Luthra that after an application for police remand had been dismissed when the Appellants were initially arrested and produced before the learned Magistrate, a second application for police


remand was not maintainable and that the order of the High Court cancelling the grant of bail to the Appellants was also bad on such ground. Mr. P.R. Agarwal, learned Advocate appearing for the Respondent No.4- Complainant, however, submitted that the order of the High Court did not require any interference, since a large number of articles given by way of dowry and which were admitted to have been received by the Appellants, were yet to be recovered and such recovery could be made only under custodial interrogation. The same view was expressed by Mr. Manjit Singh, learned Additional Advocate General appearing for the State of Haryana. We have carefully considered the submissions made on behalf of the respective parties and we are of the view that the order of the High Court requires intervention on the two points argued by Mr. Luthra. Bail had been granted to the Appellants by the learned Magistrate, Palwal, on 10th October, 2008, and as indicated hereinbefore, there is no allegation that the same had been misused or that any attempt had been made after the Appellants were granted bail to recover the articles alleged to have been given to the Appellant No.1 at the time of marriage with the complainant. The reason given by the High Court for cancellation of the orders granting bail and directing the arrest of the Appellants on the ground that disclosures have been made by the Appellants and that their police custody was necessary for recovery of the same, is, in our view, not sufficient for the purpose of cancellation of bail granted earlier. What is clear is the fact that police remand can only be made during the first period of remand after arrest and production before the Magistrate, but not after the expiry of the said period. Of course, we do not agree with the submissions made by Mr. Luthra that the second application for police remand is not maintainable even if made during the first 15 days period after arrest. The said point has also been considered and decided in the above case. Within the first 15 days of arrest the Magistrate may remand the accused either to judicial custody or police custody for a given number of days, but once the period of 15 days expires, the Magistrate cannot pass orders for police remand. Having regard to the facts of the case, we allow these appeals and set aside the impugned order directing cancellation of bail and re-arrest passed by the High Court dated 19th March, 2010, and restore that of the learned Magistrate passed on 10th October, 2008. Appeals allowed

Remand 165

2 Mithabhai Pashabhai Patel and Others

Vs. State Of Gujarat


Facts Whether with the change of an investigating authority, police custody of the accused on remand can be sought for, although cognizance of the offence had already been taken, is the question involved herein. It arises out of a judgment and order dated 5th September, 2009 passed by the High Court of Gujarat at Ahmedabad in Criminal Revision Application No.482 of 2008 setting aside an order dated 23rd May, 2008 passed by the learned Second Additional Sessions Judge, Himatnagar in Sessions Case No.70 of 2002. Shorn of all unnecessary details the fact of the matter is as under :- Appellants had been prosecuted for commission of an offence under Sections 302/307/395/396/397/201/435/324/143/147/148/149/153-A/341/337/427 and 120-B of the Indian Penal Code as also under Section 135 of the Bombay Police Act. 5. The occurrence in which the appellant is involved is said to have taken place on 20th August, 2002 at Vadvasa Patia Village near Prantij. A first information report was lodged on the same date. During course of investigation all the six appellants were arrested. 6. Indisputably, they were remanded to police custody in terms of sub- section (2) of Section 167 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’). Upon completion of investigation, a charge sheet was submitted. The matter was committed to the Sessions Court. Cognizance of the offence was taken by the Sessions Judge. They were granted bail by the High Court by an order dated 30th August, 2003. The court held that The matter, however, came up before this Court. A Bench of this Court by an order dated 26th March, 2008 passed by in Writ Petition (Crl.) No. 109 of 2003 appointed a Special Investigation Team. Pursuant to or in furtherance of the said direction the State of Gujarat issued a Notification on 1st April, 2008 constituting a Special Investigation Team to investigate into cases arising out of Godhra incident and communal riots erupted thereafter in the year 2002.

2. AIR 2009 SC (Supp) 1658.


In terms of the said Notification the SIT could work out the modalities and the norms required to be followed for the purpose of inquiry/investigation including further investigation. An application was filed on or about 22nd May, 2008 by one Himanshu Shukla, Assistant Superintendent of Police, seeking remand of the accused for a period of 14 days. The reasons assigned therefor were that that offences under some provisions were added and investigation with respect to the said offences from the accused could not be carried out therefor in respect of certain points mentioned therein. This Court while passing the order in exercise of its jurisdiction under Article 32 of Constitution of India did not direct re-investigation. This court exercised its jurisdiction which was within the realm of the Code. Indisputably the investigating agency in terms of sub-section (8) of Section 173 of the Code can pray before the Court and may be granted permission to investigate into the matter further. There are, however, certain situations, where such a formal request may not be insisted upon. It is, however, beyond any cavil that ‘further investigation’ and ‘re-investigation’ stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely under Articles 226 and 32 of the Constitution of India could direct a ‘State’ to get an offence investigated and/or further investigated by a different agency. Direction of a re-investigation, however, being forbidden in law, no superior could would ordinarily issue such a direction. It is a well-settled principle of interpretation of statute that it is to be read in its entirety. Construction of a statute should be made in a manner so as to give effect to all the provisions thereof. Remand of an accused is contemplated by Parliament at two stages; pre-cognizance and post- cognizance. Even in the same case, depending upon the nature of charge-sheet filed by the investigating officer in terms of Section 173 of the Code, a cognizance may be taken as against the person against whom an offence is said to have been made out and against whom no such offence has been made out even when investigation is pending. So long a charge-sheet is not filed within the meaning of sub-section (2) of Section 173 of the Code, investigation remains pending. It, however, does not preclude an investigating officer, as noticed hereinbefore, to carry on further investigation despite filing of a police report, in terms of sub-section (8) of Section 173 of the Code.” No sufficient or cogent material has been placed on record by the State or the Special Investigating Team in this behalf.

Remand 167

For the reasons aforementioned the impugned judgment cannot be sustained which is set aside accordingly. The appeal is allowed. We, however, in the peculiar facts and circumstances of this case, in exercise of our jurisdiction under Article 142 of the Constitution of India, make the interim direction absolute subject to any other or further orders that may be passed by the Sessions Judge till an additional charge sheet, if any, is filed by the Special Investigating Agency before the learned Sessions Judge. Appeal Allowed

3 Syed Hakkim And Anr.

Vs. State, Dy. Superintendent of Police, Karur, Tamil Nadu

Decided on: 23 February 20093

Facts The Judgment was delivered by : Dr. Arijit Pasayat, J. Leave granted. Challenge in this appeal is to the judgment of a Division Bench of the Madras High Court dismissing the appeal filed by the appellants. Seven accused persons faced trial. Appellants-accused were numbers as A-1 and A-2 respectively in the trial Court and before the High court. Out of seven accused persons who faced trial A-1 to A-5 and A-7 were convicted for offence punishable under Section 498-A of the Indian Penal Code, 1860 (in short the ‘IPC’) while A-1 to A-5 were also convicted for offence punishable under Section 302 IPC. In appeal the High Court set aside the conviction so far as A3, A4 and A5 are concerned in respect of offence punishable under Section 302 IPC. Prosecution version in a nutshell is as follows: The marriage between the first accused and Syed Ali Fathima (hereinafter referred to as ‘deceased’) took place on 22.4.2001. A2 is the brother of Al. A3 and A4 are the sisters of Al and AS is the mother and A6 is the father of Al. A7 is the aunt of Al. P.W.l is the mother of the deceased. At the time of marriage, P.W.l paid Rs.5,000/- and three sovereigns of gold jewels and after a period of two months, the first accused went to Mumbai seeking for a job. All the other accused ill-treated the deceased stating that the dowry demand was not met. Prior to the occurrence, the first accused came from Mumbai. PW-1 was summoned. At that time, there was a demand from accused Nos. 1, 2 and 7 that 10 sovereigns of gold and a sum of Rs.5,000/- towards 3. 2009 Indlaw SC 333.


“Seevarisai” for Ramzan must be paid immediately. A-7 who was present at that time informed PW-1 that she can pay the said demand within a period of two months. The court held thatOn the day of occurrence, i.e., 8.3.2002, the son of the 2nd accused proceeded to the house of P.W.1 and informed her that she was to be taken to the house of the accused and took her in a two wheeler. When P.W.1 went to the house of the accused, the wife of A2 informed that the deceased Fathima was upstairs. When P.W.1 went to upstairs, she found only the dead body of her daughter and P.W.1 was able to see a ligature mark around the neck of the deceased. When P.W.1 enquired, nobody gave any answer, but all laughed. P.W.1 immediately came back and informed the relatives and proceeded to the police Station. P.W.13, the Sub-Inspector of Police was on duty on the day of occurrence. P.W1 gave a complaint at about 17.30 hours which is marked as Ex.P.1 on the strength of which a case came to be registered in Crime No.49/2002 under Section 174 of the Code of Criminal Procedure, 1973 ( in short the ‘Code’) was dispatched to the Court. On receipt of the copy of the F.l.R., P.W.14 the Deputy Superintendent of Police took up investigation, proceeded to the scene of occurrence, made inspection and prepared Ex.P.2- the observation and Ex.P.12- the rough sketch. He also sent a copy of the FIR to PW-10, the Revenue Divisional Officer who on receipt of the copy of the FIR proceeded to the place and also conducted inquest on the dead body in the presence of witnesses and prepared Ex.P-9, the Inquest Report wherein he opined that it was not a case of suicide but it was the death by homicide. Originally, the case was registered under section 174 of Code. Later, it was converted into one under Sections 498-A and 302 IPC and the Express F.I.R. Ex.P.13 was dispatched to the court. On completion of investigation, the investigating officer filed the final report. The case was committed to the Court of Sessions. Necessary charges were framed in order to substantiate the charges leveled against the accused. The prosecution examined 16 witnesses and relied upon 13 exhibits and 3 material objects. On completion of evidence on the side of the prosecution, the accused were questioned under section 313 of Code. So far as Section 498-A is concerned according to learned counsel for the appellants the evidence is scanty but it is to be noticed that both the trial Court and the High Court having regard to the evidence of relatives concluded that the dowry demand was made. We do not find any infirmity with the conclusions arrived at more particularly in view of the evidence of PWs 1 and 2 and therefore there is no scope for interference with the conclusions relating to Section 498-A IPC.

Remand 169

There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952. The circumstances highlighted by the prosecution to bring in application of Section 302 IPC are insufficient and scanty. That being so, the conviction as recorded in terms of Section 302 IPC cannot be maintained and is set aside. The sentences imposed in respect of Section 498-A IPC does not warrant interference. In the ultimate result, the conviction in terms of Section 302 is set aside while that under Section 498-a stands confirmed. The appeal is disposed of to the aforesaid extent. Appeal disposed of.

4 Raju Vs.

State By Inspector of Police Decided on: 19 February 20094

Facts Challenge in this appeal is to the judgment of a Division Bench of the Madras High Court altering the conviction of the appellant from offence punishable u/s. 302 of the Indian Penal Code (in short the ‘IPC’) to S. 341 Part I IPC and sentencing him to undergo rigorous imprisonment for seven years. By the common judgment two Criminal Appeals were disposed of. Appeal filed by K. Periyapandian, the c While the matter stood thus, P.W.7, who had got financial transactions with the deceased, on the date of occurrence, i.e. 05.04.2005, went to Balasamudhram to get some amount from the deceased, got down from the bus, went to the nearby tea shop and enquired about the deceased. He was informed that the deceased, along with both the accused, was proceeding to his place and when P.W.7 went over there he found accused Nos.1 and 2 and the deceased were quarreling over the payment of commission and at that time P.W.7 was asked by the deceased what was the reason for his visit. P.W.7 answered that he had come to get some money and P.W.7 was informed by the deceased that he had no money and he was asked to come after four days and P.W.7 in turn returned leaving the deceased and accused 1 and 2 there. Till 9.00 p.m. on 05.04.2005 the deceased did not return home and hence at about 9.30 p.m. P.W.1 went in search of her husband and she found at the 4. AIR 2009 SC 2171.


place of occurrence the dead body of her husband. Immediately she informed to P.W.2, who in turn informed to P.Ws.3 and 4 who, also came there and saw the dead body. Thereafter, P.W.1 proceeded to the Police Station, gave a complaint, (which is marked as Ex.P-1) to P.W.13, the Head Constable, at about 4.00 a.m. on 06.04.2005. On the strength of Ex.P-1, P.W.13 registered a case in Crime No.293/2005 u/s. 302 IPC and prepared Ex.P-12, the First Information Report and the same was despatched to the Court through PW-11, the Head Constable. The court held that The doctor (PW-9) attached to Government Hospital, Palani, on receipt of Ex.P-3, the requisition, from the Investigator conducted postmortem on the body of the deceased and gave Ex.P-4, the postmortem certificate, opining that the deceased appeared to have died of shock and hemorrhage due to head injury, 14 to 18 hours prior to autopsy. After postmortem, PW.12, the Head Constable, recovered M.Os. 10 to 13, the personal wearing apparels and ornaments of the deceased, from the dead body and handed them over to the Inspector of Police. On completion of the investigation, P.W. 15, the Investigator, filed the charge sheet against both the accused u/s. 302 read with S. 34 IPC before the concerned Magistrate’s Court. As the accused persons pleaded innocence, trial was held. Fifteen witnesses were examined to further the prosecution version. The trial Court found that the evidence adduced by the prosecution was substantial in nature. Placing reliance on the evidence of PW-1, the widow and PW-7 the trial Court held the appellant guilty of offence punishable u/s. 302 IPC. The co-accused was found guilty of offence punishable u/s. 302 read with S. 34 IPC and S. 341 IPC. In appeal, it was submitted that the circumstances highlighted do not form a complete chain of circumstances and in any event PW-7’s evidence is not acceptable. The High Court did not find any substance in the appeal filed by the appellant and found him guilty but the conviction as noted above was altered. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952. PW-7’s evidence is clear and cogent. His presence at the spot has been established. He used to have business transactions with the deceased. He stated about the present appellant holding a handle of soil cutter. Though the deceased and the present appellant were engaged in exchange of hot words, that could not have given an impression to PW-7 that accused would take the life of the deceased.

Remand 171

Therefore, the fact that he left the place on being told by the deceased to do so cannot be a ground to dis-believe his evidence. According to him he had seen the deceased and the accused engaged in wordy tussle around 9.00 p.m. The wife of the deceased PW-1 found his dead body at about 9.30 p.m. The time gap when the deceased was last seen alive in the company of the accused and when his dead body was seen is not very large. Admittedly, the bone of contention between the deceased and the accused was nonpayment of the commission on account of which they were quarreling. The trial Court and the High Court have rightly held the appellant to be the author of the crime. We find no infirmity in the conclusion of the High Court to warrant interference. The appeal is accordingly dismissed. Appeal dismissed.

5 Aqeel Ahmad

Vs. State of Uttar Pradesh

Decided on: 19 December 20085

Facts Challenge in these appeals is to the judgment of a Division Bench of the Allahabad High Court upholding the conviction of appellant Aqeel Ahmad (Appellant in Crl. A. No.595/07) in Criminal Appeal No.2630 of 2004 but altering the sentence of death as awarded by learned Additional District and Sessions Judge, Court No.3, Aligarh to life sentence. Criminal Appeal No.2593 of 2004 filed by Ashiq Ali and Criminal Appeal No.2590 of 2004 filed by Mohammad Shakir and Chaudhary Aleem were also dismissed. The Criminal Reference for confirmation of death sentence as referred u/s. 366 of the Code of Criminal Procedure, 1973 (in short the ‘Code’) was answered in the negative. While Criminal Appeal No.595 of 2007 has been filed by Aqeel Ahmad, the other accused persons, namely, Mohammad Shakir, Ashiq Ali and Irfan have filed Criminal Appeal No.596 of 2007. Since the accused Ashiq Ali did not file surrender certificate, special leave petition was dismissed so far as he is concerned. So far as accused Chaudhary Aleem and Irfan are concerned it is submitted that they have died during the pendency of the matter before this Court. State of U.P. has filed Criminal Appeal No.597 of 2007 questioning alteration of death sentence to life sentence by the High Court.

5. AIR 2009 SC 1271.


A report was lodged by Ahmadur Rahman Sherwani at Police Station, Civil Lines, Aligarh stating that some construction of lane from the crossing of Amirnisha to Goshtwali gali was going on from the quota of Khwaja Aleem, M.L.A. A banner was fixed by Vyapar Mandal, Amirnisha and on the banner, name of his son Favad Khan Sherwani was mentioned as General Secretary. On 16.12.2001 at about 4.00 p.m. Shakir, Sabhasad had taken out the banner. He came at the house of informant armed with D.B.B.L. Gun. Irfan driver, Chaudhary Aleem, Shakir son of Shabbir and Ashiq Ali. His sons Favad and Shahood Ali khan were present there and they started abusing them and challenged saying that how he could dare to fix the banner and set the banner on fire. His sons told him that since there was a festival next day, they should talk about it later on. Hearing this, companions of Shakir Sabhasad exhorted and Shakir and appellant Aqueel Ahmad started firing from their guns which hit both his sons. He alongwith Iqbal Ahmad, Farooq Ahmad, Shah Alam, Jalaluddin, Mohd. Shabir, Maroof Ahmad Khan, Majid Ali khan, Subhash Chandra and others who were making purchases in the nearby shops came to rescue them and accused persons firing from their country made pistols and guns went away. His younger son Favad Khan (described as D1) died on the spot and injured Shahood (described as D2) died in the hospital during treatment. Shah Alam had also received fire arm injuries and he was taken to the Medical College. The court held that The High Court did not find any substance in these pleas. The appeals were dismissed but the death sentence was altered to life sentence in case of accused Aqueel Ahmad, as noted above. In support of appeals by the accused persons, learned counsel for the appellants re-iterated the various stands taken before the High Court. It is pointed out that there was no evidence that the special report was sent to the concerned Magistrate with reference to S. 157 of the Code. It is submitted that the requirements have not been complied with. In response, learned counsel for the informant and the State supported the judgment. Additionally, learned counsel for the State submitted that this was a case where death sentence as awarded by the trial Court should have been confirmed. Another factor which was highlighted by learned counsel for the appellants was that the prejudice is caused because the evidence of PWs 9 and 10 show that there were some deliberations and improvements made. Non examination of Shah Alam who is supposed to be injured witness also has relevance. It is pointed out that the medical evidence is contrary to the oral testimony. Since the medical report shows two wound and two entries it was stated that firing took place once.

Remand 173

It has been established by the evidence of the eye witnesses that all the eight accused persons were armed with weapons, they surrounded the deceased and in fact prevented others from going near the deceased to rescue him. They had arrived together in the same jeep and left by the jeep after the incident. One important and relevant factor, which has been noticed by the trial court and the High Court, is that the jeep was kept in starting position. Significantly the defence in the cross examination brought out the fact that the accused persons surrounded the deceased and prevented those who wanted to go to rescue the deceased by threatening them with dire consequences. The trial court and the High Court have analysed the factual position in great detail and have pointed out the aforesaid relevant factors. Therefore, there is no infirmity in the conclusion of the courts below about the applicability of S. 149 IPC. Where a group of assailants who were members of the unlawful assembly proceeds to commit the crime in pursuance of the common object of that assembly, it is often not possible for witnesses to describe the actual part played by each one of them and when several persons armed with weapons assault the intended victim, all of them may not take part in the actual assault. Therefore, it was not necessary for the prosecution to establish as to the specific overt act was done by each accused.” ‘The proceedings u/s. 174 have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under Section 174. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report. Therefore, the appeals filed by the accused persons are without merit, deserve dismissal which we direct. So far State’s appeal as regards sentence is concerned, it is to be noted that number of deaths in a case would not be the determinative factor for awarding the death sentence. Even in the case of single victim death sentence can be awarded taking into consideration the circumstances of the case. In the instant case looking to the background facts it cannot be said that the High Court by altering the sentence from death to life has acted inappropriately. We, therefore, dismiss the State’s appeal also. All the appeals are dismissed. Appeals dismissed


6 A. Maharaja

Vs. State Of Tamil Nadu

Decided on: 14 November 20086

Facts Challenge in this appeal is to the judgment of a Division Bench of the Madras High Court upholding the conviction of the appellant for offences punishable under Section 302 of the Indian Penal Code, 1860 (in short ‘the IPC’) and sentenced him to undergo imprisonment for life and also to pay a fine of Rs.1,000/- with default stipulations, as recorded by the Principal Sessions Judge, Madurai, in S.C. No.189 of 2005. 3. The prosecution version, in a nutshell, is as follows. PW-1 is the wife of PW-4. The accused and PW-4 are the sons of Alagu Ambalam (hereinafter referred to as the ‘deceased’). PW-2 is the son of PW-1. Alagu Ambalam had certain immovable properties which he partitioned 10 years before the occurrence, and he regained a piece of land namely 10 cents, which is a poramboke, for his livelihood. The accused was insisting him to give that land also. There arose a civil dispute between them. It also ended in favour of Alagu Ambalam. On the day of occurrence i.e, 26.05.2003 at about 7.00 A.M., PW-1 was going to the garden to pluck vegetables. At that time, her father-in-law, the said Alagu Ambalam, was cutting Karuvela trees. He was having a spade and aruval in hand. At that time, the accused came there and questioned how he could cut the trees, and following the same, there was a wordy duel. Immediately, the accused snatched the aruval and cut him on the neck and shoulder indiscriminately. PW-1 on seeing this, raised alarm, and immediately, the accused fled away from the place of occurrence. The said Alagu Ambalam met his instantaneous death. PW-1 proceeded to the Police Station, where, the sub- Inspector of Police (PW-11), was present. PW-1 gave a report (Ex.P1), on the strength of which a case came to be registered in Crime No.81/2003 under Section 302 IPC. The first information report, Ex.P-12, along with Ex.P1 was despatched to the Magistrates’ Court. The Inspector of Police (PW-12), on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an inspection in the presence of witnesses and prepared an observation , Ex.P-4, and a rough sketch, Ex.P-13. Then, he conducted inquest on the dead body of Alagu Ambalam in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P-14. The dead body was sent to the Government Hospital along with a requisition, Ex.P-2, for the purpose of autopsy. The Assistant Surgeon (PW-6), attached 6. AIR 2009 SC 480.

Remand 175

to the Government Hospital, Melur, on receipt of the said requisition, conducted autopsy on the dead body of Alagu Ambalam and found 7 cut injuries The court held that The stand before the High Court was reiterated by learned counsel for the appellant. The substantive plea relates to the applicability of Exception 4 of Section 300 IPC. For bringing in its operation it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the ca se of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men’s sober reason and urges them to do deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A ‘sudden fight’ implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. In Kikar Singh v. State of Rajasthan (AIR 1993 SC 2426) it was held that if the accused used deadly weapons against the


unarmed man and struck a blow on the head it must be held that using the blows with the knowledge that they were likely to cause death, he had taken undue advantage. These aspects have been recently highlighted in Iqbal Singh v. State of Punjab (2008 911 SCALE 599). From the background facts as considered in the light of the evidence, the inevitable conclusion is that the occurrence took place in course of sudden quarrel. Therefore, Exception 4 to Section 300 IPC applies. The appropriate conviction would be under Section 304 Part-I IPC. Custodial sentence of 10 years would meet the ends of justice. The appeal is allowed to the aforesaid extent. Appeal Allowed

7 Dinesh Dalmia

Vs. C.B.I.

Decided on: 18 September 20077

Facts Interpretation of Sub-s. (2) of S. 167 of the Code of Criminal Procedure, 1973 (for short “the Code”) vis-a-vis Sub-s. (2) of S. 309 thereof falls for consideration of this Court in this appeal which arises out of an order dated 22.12.2006 passed by a learned Single Judge of the High Court of Judicature at Madras in Crl. R.C. No. 1173 of 2006 setting aside an order dated 25.08.2006 passed by the 5th Additional Sessions Judge, Chennai in R.C. 4/(E)/03/BSC/FC/CBI New Delhi in Crl. R.C. No. 115 of 2006 whereby an order dated 30.05.2006 passed by the Special Court in Crl. M.P. No. 788 of 2006 in C.C. No. 19189 of 2005 was set aside. Appellant was proceeded against for commission of offences under Sections 409, 420 and 120B of the Indian Penal Code. The Central Bureau of Investigation (CBI) lodged a first information report against the appellant and three companies registered and incorporated under the Companies Act, 1956 on a complaint made by the Securities and Exchange Board of India. Indisputably, Appellant was named therein. He was, however, evading arrest. He had gone to the United States. The learned Magistrate by an order dated 14.02.2005, on a prayer made in that behalf by

7. AIR 2008 SC 78.

Remand 177

the CBI, issued a non-bailable warrant of arrest against him. Upon completion of investigation, a charge sheet was submitted before the Magistrate in terms of Sub-s. (2) of S. 173 of the Code. In the said charge sheet, name of the appellant appeared in Column No. 1 along with the said three companies. The court held that Although statements made by the witnesses u/s. 161 of the Code accompanied the charge sheet, the relevant documents could not be filed as they were sent for examination before the Government Examiner of Questioned Documents (GEQD). Cognizance was taken by the Magistrate on the said charge sheet by an order dated 25.10.2005. It was specifically noted that non-bailable warrant as against the appellant was still pending. 5. The CBI contended that the appellant entered into India illegally as no endorsement had been made in his passport showing a valid travel undertaken by him. He was produced before a Magistrate in Delhi for transit remand to Chennai. An order to that effect was passed. On 14.02.2006, when he was produced before the concerned Magistrate at Chennai, an order for police custody was prayed for and was granted till 24.02.2006. Another application was filed for further police custody for four days on 21.02.2006. An application was also filed seeking permission to conduct brain mapping, polygraph test, on the appellant which was allowed. Mr. Amarendra Sharan, learned Additional Solicitor General appearing on behalf of the CBI, on the other hand, would submit that a charge sheet having been submitted before the Court and cognizance having been taken on the basis thereof, the only provision applicable for remand of the accused would be Sub-s. (2) of S. 309 of the Code and, thus, even if a wrong provision has been mentioned by CBI in their applications for remand, the same by itself would not render the order of the Court invalid in law. In this case the CBI took a conscious decision to file charge sheet against the appellant. His name was shown in Column No. 1 thereof although he was absconding. It was found that a case for trial has been made out. There were five accused against whom allegations were made by the complainant. One of the companies was not sent for trial as nothing was found against it. All the other accused named in the first information report had been sent for trial. Apart from the appellant, three companies, registered and incorporated under the Companies Act, have been shown as accused in the charge sheet. It was, therefore, not necessary for the CBI to file a charge sheet so as to curtail the right of the accused to obtain bail. It is, therefore, not a case where by reason of such submission of charge sheet the appellant has been prejudiced in any manner whatsoever. It is also not a case of the appellant that he had been arrested in course of further investigation. A warrant of arrest had already been issued against him.


The learned Magistrate was conscious of the said fact while taking cognizance of the offence. The statutory scheme does not lead to a conclusion in regard to an investigation leading to filing of final form under Sub-s. (2) of S. 173 and further investigation contemplated under Sub-s. (8) thereof. Whereas only when a charge sheet is not filed and investigation is kept pending, benefit of proviso appended to Sub-s. (2) of S. 167 of the Code would be available to an offender; once, however, a charge sheet is filed, the said right ceases. Such a right does not revive only because a further investigation remains pending within the meaning of Sub-s. (8) of S. 173 of the Code. The High Court, in our opinion, is correct in its finding that, in the fact situation obtaining, the appellant had no statutory right to be released on bail. We do not, thus, find any infirmity in the judgment of the High Court. Accordingly, the appeal is dismissed. Appeal dismissed.

Chapter 8

SEARCH AND SIZURE

Section 91(1) CrPc: An analysis of Constitutional validity The entire procedure specified in the Code of criminal procedure, 1973 is based on principle of justice and fairness. One of the fundamental principles of legal jurisprudence is that a person accused of any offence should be given equal chance to be heard and to defend himself. It is in consonance with this theory only that there are provisions in Code of Criminal Procedure, 1973 (CrPC) related to issue of process, provisions in section 161 (3), provision in section 162 of the code that any statement recorded during the course of investigation, shall not be signed by the person making the statement, has been specified. Similarly upholding the similar proposition, the protection against self incrimination has been provided as a special fundamental right, under Part III of the Constitution of India. Article 20(3) states that: “No person accused of any offence shall be compelled to be a witness against himself.” This paper deals with the power of search and seizure of the court and police authorities particularly the power to issue summons or notice by the court or officer in charge of the police station under section 91(1) of CrPc. The issue has been dealt in detail by the apex court of this country in case of M.P Sharma and others vs Satish Chandra, State of Bombay vs Kathi Kalu Oghad and State of Gujrat v Shyamlal Mohanlal Choksi. After going through all the three case laws it is felt that the matter has been wrongly taken up by the court. The Supreme Court in Kalu Oghad’s case has narrowly interpreted the expression “to be a witness” which has created situation where a very narrow space is available for the actual protection of this right in respect of production of documents. This has been done by dealing with the general provisions of search and seizure and than analysing the Shyamlal Choksi as well as Kalu Oghad’s case. General Provision regarding search and seizure


Section 91 with the head note Process to Compel Production of Things of the Code of Criminal Procedure, 1973 states that: (1) Whenever any Court or any officer in charge of a police station consider that the production of any document or other thing is necessary or desirable for the purpose of any investigation, inquiry, trial or other proceeding under this code by or before such court or officer, such court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring hm to attend and produce it, or to produce it, at the time and place stated in the summons or order. (2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same. Whereas section 93 When search warrant may be issued; in sub section (1) provides that (1)(a) Where any court has reason to believe that a person to whom a summons or order under section 91 or a requisition under sub section (1) of section 92 has been, or might be, addressed, will not or would not produce the document or thing as required by such summons or requisition, or (b) where such thing or document is not known to the court to be in the possession of any person, or (c) where the Court consider that the purpose of any inquiry, trial or other proceeding under this code will be served by a general search or inspection, it may issue a search- warrant; and the person to whom such warrant is directed, may search or inspect in accordance therewith and provisions hereinafter contained. This means that an officer in charge of a police station can send a notice or a court can issue a summon under section 91(1) to any person within whose possession the officer or court thinks is the document or a thing necessary for the purpose of investigation. But if the court or officer feels that the person to whom the summons or notice is issued, will not produce the document or thing, the court can issue a warrant of search to the officer, under section 93(1) (a). From time to time the constitutional validity of the warrant issued under Section 93(1) (a), in context of Article 20(3) has been raised. The contentions were raised that the term “any person” in section 91(1) not only includes witnesses and other persons, but also includes the accused. Therefore if the accused person do not obeys the summons, he will have to face a compelled search in his house, and this itself shows the compulsion put on the accused. Further, the compelled search made will be an intrusion into the privacy. Also there will be a prosecution for the offence committed under section 174 of the

Search and Sizure 181

Indian Penal Code, 1860. Therefore in light of all this the summons issued is a compulsion on the accused person to produce self incriminating evidences, thereby completely violating his fundamental right guaranteed under Article 20(3) With regard to the first proposition about the process of issue of search warrant under section 93(1) (a), the Honourable Supreme Court in the leading case of M.P Sharma and Others v Satish Chandra, District Megistrate, Delhi and Others, through Jaghandadas J. stated that: “It may be mentioned in passing that the provision for the issue of general search warrants appears for the first time in procedure Code of 1882 and even there the issue of general warrants is not based on non compliance with a previous summons for production. It is, therefore, clear that there is no basis in the Indian law for the assumption that a search or seizure of a thing or document is in itself to be treated as compelled production of the same. Indeed a little consideration will show that the two are essentially different matters for the purpose relevant to the present discussion. A notice to produce is addressed to the party concerned and his productions in compliance therewith constitute a testimonial act by him within the meaning as explained above. But search warrant is addressed to an officer of the government, generally a police officer. Neither the search nor the seizures are acts of the occupier of the searched premises. They are acts of another to which he is obliged to submit and are, therefore, not his testimonial acts in any sense.” Which in whole means that the search conducted by the police officer or any investigating officer will be valid only if it has been conducted without any help (involuntary help) from the person, only if any formal accusation has been levelled against the person. However with regard to intrusion into the privacy, it has been settled that the right to privacy is not an absolute right and is subject to reasonable restriction whenever there are contravelling interest, which requires much weight age than the right to privacy of the person, for the sake of justice. Now the only question which is left, is: whether the accused will be penalized under section 174 of the IPC, 1860 if he does not comply with the notice or summons is issued to him? Section 174 with head note Non- attendance in obedience to an order from public servant, states that Whoever, being legally bound to attend in person or by agent at a certain place and time in obedience to a summon, notice, order or proclamation proceeding from any public servant legally competent, as such public servant, to issue the same,


Intentionally omits to attend at that place or time, or departs from the place where he is bound to attend before the time at which it is lawful for him to depart, Shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both, Or, if the summons, notice, order or proclamation is to attend in person or by agent in a Court of Justice, with a simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. With regard to the above proposition, the apex court in case of State of Gujrat v Shyamlal Mohanlal Choksi has held that the term “any person” in section 91 of CrPC does not include the person accused of any offence and therefore no notice can be issued to the accused. However the judgment of the court in the above case does not absolutely restrict the accused person. The ratio decidendi of the judgment has kept open the doors for the some amount of flexibility (which will be dealt in detail), which is strictly within the boundaries constructed by the same Supreme Court in case of State of Bombay v Kathi Kalu Oghad. In the above case one of the absurd decision was made by the Supreme Court (majority bench) where a narrow interpretation of the phrase “to be a witness” specified in Article 20(3) was made. Therefore this interpretation along with the decision in Shyamalal’s case raises two issues: (1) Whether the proposition stated by the majority bench in the Kathi Kalu Oghad case is practically applicable, in light of the protection against self incrimination? (2) Whether still there is a scope that the person accused of any offence can be summoned to produce any document or other thing for the purpose of investigation? “To be a witness” real meaning The protection against self incrimination as has been provided in Article 20(3) is based on the following principle: “nemo tenetur prodere or nemo tenetur scripsum accusare” which means that an accused should not be compelled to furnish any evidence against him. It is the duty of the State/ prosecution to prove him guilty, beyond reasonable doubt. This is just to give proper equal opportunity to accused to know what charges has been levelled against him, what case the prosecution has prepared and then on the basis of which he will prepare a proper defence for himself.


Historical Background This principle has been embodied in the statutes first in the fifth amendment of the American Constitution which states that: “No person……… shall be compelled in any criminal case to be a witness against himself” The same principle has been embodied in the Indian Constitution, but with some different words: Article 20(3): No person accused of any offence shall be compelled to be a witness against himself. The difference between the two provisions has been dealt in detail in the previous chapter. The expression “to be a witness” here needs some special consideration as the soul of the entire provision lie in this expression. The interpretation of this expression will determine the extent up to which whether there is a complete umbrella against self incrimination or not. The Supreme Court in case of Sharma v Satish stated that “to be a witness” means to become a witness and not to appear as a witness and thus the protection not only extends to compelled testimony in court but extend even to pre trial investigation and interrogation. This interpretation of the phrase has been even followed by the same court in State of Bombay v Kathi Kalu Oghad and State of Gujrat v Shyallal Mohanlal Choksi. However apart from this interpretation, one another interpretation made by the apex court in Kalu Oghad’s case where the majority through Sinha, Bhuvneshwar P.(CJ) stated that: “to be a witness means imparting knowledge in respect of relevant facts, by means of oral statements in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding enquiry or investigation. A person is said to be a witness, to a certain state of facts which has to be determined by a court or authority to come to a decision, by testifying to what he has seen, or something which he has heard which is capable of being heard and is not hit by rule excluding hearsay or giving his opinion, as an expert, in respect of matters in controversy.” Therefore even if an accused has any document which has the tendency to expose the guilt of the accused, or by which he will himself confirm the criminal charges against him, he can be summoned to produce the document and that the summoned issued will not be considered to be against self incrimination. The only requirement is that the content of the document should not disclose any information based on the personnel knowledge of the accused.


With regard to this Das Gupta J: speaking for the minority in the same case, criticized the above proposition in following words: “We have to remind ourselves that while on the one hand that Constitution- makers could not have intended to stifle legitimate modes of investigation we have to remember further that quite clearly they thought that certain things should not be allowed to be done, during the investigation or trial, however helpful they might seem to be the unfolding of truth and an unnecessary apprehension of disaster to, the police system and the administration of justice, should not deter us from giving words their proper meaning.” With regard to the practical application of the same proposition he further cited an example that if an accused person has in his possession, a letter written to him by an alleged co conspirator in reference to their common intention in connection with the conspiracy for committing particular offence. Under section 10 of the Evidence Act, 1872 the document is the relevant fact as against the accused himself for the purpose of proving the conspiracy and also for the purpose of showing that any such person was party to it. By producing this accused will not be imparting, any personnel knowledge of facts; yet it would be certainly be giving evidence of a relevant facts. Though not on the basis of the personnel knowledge, but certainly the submission of document will be self incriminatory. But as per the ratio decidendi of the majority in this case, this will be the practical application. Therefore this it self is evident as to what is scope of the applicability of the protection guaranteed by Article 20(3). However in a later decision in the case of State of Gujrat v Shyamlal Mohanlal Choksi. Supreme Court held that the term ‘person’ under section 91(1) does not include the accused person. However going again by the ratio decidendi of the judgment the court has stated that it is implicit in the section 91(1) that an accused will not be called for any document which will be self incriminating. The Sikri J. speaking for the majority stated that: “If after a thing or document is produced, its admissibility is going to be examined and the document or thing in question is not going to be admitted in evidence if it incriminates the accused person, the order to produce the thing or document would seem to serve no purpose; it cannot be overlooked that it is because the document or thing is likely to be relevant and material in supporting the prosecution case that on most occasion the power under section 94(1) would be resorted to, so that on the alternative view which seeks to exclude incriminating document or things, the working of section 94(1) would yield no result.”


So could it now be said that the person accused of any offence has been completely excluded from the application of power under section 91(1)? The decision of the apex court has to be looked in light of the judgment of the court in Kalu Oghad’s case. Therefore summing up both these judgments together it could be very well established that the accused, with due respect to his right against self incrimination, is definitely exempted from being summoned to produce incriminating documents but only if it does not contain any material on the basis of his personal knowledge. This will definitely raise a question in the mind that how the authority will come to know that whether any document is based on the personal knowledge of the accused? The answer to this typical question is very simple. First the authorities will call the accused person with the documents, after which they will come to know whether the document is incriminating or not (strictly according to the majority ruling in Kalu Oghad’s case). This has created a situation where both the heads and the tales are in the hand of authorities. Correcting the flaw The entire discussion made above raise only one question in mind. Is this was the legislative intention behind this protection afforded to the accused? Is this is what really should be? This fact is clearly established that the right against self incrimination is not an absolute privilege provided to the accusedbut still the interpretation of phrase procedure established by law as has been done by the Court in Menka Gandhi case is to be a just fair and reasonable procedure. Any procedure will ensure justness and fairness only when it respects the right of victim and accused equally. On the contrary the present law developed is violating the right to equal protection of law under Article 14 of the accused or suspect. So how is the justness and fairness ensured to the accused? It will definitely, finally lead him to the accusation. Therefore how much substantive the document is, how much relevant it could be for proving the fact in issue beyond reasonable doubt, if it is incriminating it should not be called by the accused by issuing any notice or summons. If called than it should be considered as an inadmissible document. Repeating the Sikri J. in Shyamlal’s case the term ‘any person’ in section 91 should exclude the accused person. Only than the real objective with which the right against self incrimination was included as a fundamental right, will be achieved.


1 Appellants: Manish Dixit and Ors.

Vs. Respondent:State of Rajasthan

Decided On: 18.10.20001

Facts A jeweller of Jaipur (Gulshan Makhija) was murdered on his way back home from his jewellery mart. He was abducted by two persons who intercepted the Gypsy (Jeep) driven by him on the night of 23.2.1994 with bags of jewellery kept in the vehicle. The abductors came on a motorcycle and took the jeweller to some distance where he was shot dead. The assailants decamped with a big booty consisting of valuable jewellery. There was one more person in the gypsy-a family friend by name Michael Hens (a German national who had a short sojourn at Jaipur as a tourist). He was jostled out of the gypsy before they abducted the deceased. Five persons were arraigned by the police for the said abduction and murder. But the Trial Court convicted only two among them for the aforesaid offences (A-1 Shared Dhakar and A-2 Manish Dixit), and the other three were acquitted. The High Court confirmed the said conviction only as against A-2 Manish Dixit, and the offence against A-1 Sharad Dhakar was found to be limited to Section 411 of the Indian Penal Code. 3. More details of the occurrence are these: Gulshan Makhija’s family was running the jewellery shop called “Star of India” at Ashoka Hotal building, Jaipur. He used to be in the shop everyday till it was closed in the night. On 23.2.1994 he called his mother over phone and told her that one guest would also be with him for dinner and that both would reach home soon. But the unfortunate mother could never see his son alive thereafter The court held that Gulshan Makhija and his German friend together set out from his shop in a brand new gypsy on the night after closing his shop. He carried with him a bulk of jewellery including gold, silver and valuable stones. As they reached Janpath at Shyam Nagar (near Bansal Hospital) the jeep was blocked by the two persons who rode on a motorcycle. One of them dragged Michael Hens out of the jeep and then pointed a revolver at him. He then pushed the jeweller off the driving seat and himself occupied that seat and drove the jeep keeping the dump-founded deceased on the side seat. The jeep disappeared from the sight of the sole eye-witness and the jeep was followed by the other assailant on the motorcycle.

1. AIR 2001 SC 93.


The German tourist (Michael Hens) somehow managed to reach the house of the deceased and divulged to the inmates thereof in his broken English of what happened. The brothers of the deceased took Michael Hens to the police station (Sodala at Jaipur) and lodged a complaint which became the basis of the FIR for offences under Section 365 and 379 of the Penal Code. On the next morning an anonymous phone call reached the officer-in-charge of Sodala police station that a white colored-gypsy was lying abandoned at Dayal Nagar Extension (near Gopalpur Bypass). Police then rushed to that place and found the vehicle lying on a side road. Dead body of Gulshan Makhija was seen in the vehicle with head injuries. Police noticed two bags of ornaments strewn on the road near the vehicle and some other bags of ornaments were lying inside. On 8.3.1994 police received a phone call at Idhayakapuri police station that an attaché was lying abandoned near Dhuleshwar Bagh Colony. The police traced out the spot and found the attaché and a bag also which contained nearly forty-two kgs. of ornaments, besides some documents relating to Gulshan Makhija.Police lifted the fingerprints noticed on the attaché and the bag. On 14.3.1994 A-1 Sharad Dhakar was arrested by the police. On the strength of information elicited from him police recovered some ornaments from a buried condition on the floor of “Universal Automobile Garage”. A motorcycle (RJM 6373) was also recovered pursuant to the information collected from the same accused. The first circumstances was proved with the help of two items of evidence. One is the Register of hotel Sanjay in which there is an entry made on 24.2.1994 that a person who styled himself as “Ramesh Chander Sharma” had stayed in the hotel. Second is the evidence of the hand-writing expert who said that the hand which wrote the said entry was that of Manish Dixit. Evidence of those two items has been accepted by the two Courts. But Shri. U.R. Lalit, learned Senior Counsel who argued for Manish Dixit contended that the said entry by itself is of no avail on the language of Section 34 of the Evidence Act. True Section 34 contains the rider that “such statement shall not alone be sufficient evidence to charge any person with liability According to the learned senior counsel, recovery of the revolver was in violation of Sections 165 and 166(3) of the Code. Regarding Section 165 it is admitted that for the search conducted at Alka Hotel, Connaught Place, New Delhi, no independent witness of the locality was called despite the fact that it is a very populous area of the metropolis. True no independent witness has


affixed signature on Ext. P.80-Seizure Memo. The police officer said that they made an effort to secure at least two persons from Connaught Place but none was willing to be a witness. It is no surprise that any of the traders of Connaught Place would be unwilling to officer his service as a witness to any police action if he knew that he would have to bear all the sufferings thereafter, to give evidence in a Criminal Court, more so, when that Court would be at a far off place in a different State altogether. City people are quite conscious of such consequences and they would normally be wary to signify to such witnessing. The evidence of the police officer that nobody was willing to stand as a witness in Ext. P-80 cannot, therefore, be spurned down as improbable We may look at this aspect from a broader angle. On 24.2.1994 a team of Rajasthan Police found a Gypsy lying on the roadside and they prepared Ext. P. 18 Memo. If any firearm was then lying in the Gypsy why should the police suppress that fact in the document which they prepared contemporaneously? It should be remembered that there was a number of police officers and a number of persons looking on. In such a situation the police would most certainly have mentioned in Ext. P. 18 if there was any firearm lying in the Gypsy because it is not that easy to suppress such a vital material. That apart, it is too much to assume that the police concealed that crucial weapon in Ext. P. 18 with the far sighted object of using that weapon for planting it elsewhere five months later for a concocted and fake recovery. If actually a firearm was found lying in the Gypsy on 24.2.1994, it is inconceivable that the police would not have taken it into custody and forwarded it to the Forensic Science Laboratory to check up whether it was the same firearm which the assailant could have used for murdering the deceased. In this context we may note that Ext. P. 18 which was prepared on 24.2.1994 relating to the Gypsy was promptly forwarded to the Court. We therefore, unhesitatingly allow the appeal filed by PW. 30 (Devendra Kumar Sharma) and order expunction of all the disparaging remarks made against him by the trial Judge as well the High Court in the judgments impugned before us. The direction to proceed against his departmentally would also stand deleted.


2 Appellants: M. Prabhulal

Vs. Respondent: The Assistant Director, Directorate of Revenue

Intelligence Decided On: 19.09.20032

Facts The Special Judge, Salem under Narcotics Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’), tried 11 accused for various offences. Six were convicted. Two of the convicted accused succeeded in the criminal appeal and the remaining four whose conviction and sentence has been maintained by the High Court by the impugned judgment are appellants before us. They are original accused Nos.1, 2, 3 and 6. The trial judge convicted accused Nos. 1, 2 and 3 for offences under Section 8(c), 29 read with Section 18 and Section 8(1), 29 read with Section 21 of the NDPS Act and awarded on each appellant the sentence of 10 years’ rigorous imprisonment and also fine amount of Rs. 1 lakh and in default of payment fine for each offence, they were directed to undergo further rigorous imprisonment for two years. The substantive sentences were, however, directed to run concurrently. Accused No. 6 was also found guilty for offence under Sections 8(c), 29 read with Section 21 of the NDPS Act and sentenced to undergo 10 years’ rigorous imprisonment and fine of Rs. 1 lakh and in default of payment of fine, to undergo further rigorous imprisonment for two years. In brief, the case of the prosecution is that on 15th May, 1993, a truck and car were apprehended. Accused No. 6 was in truck and accused Nos. 2 and 3 were in car. From them heroin weighing 66.1 kg. was seized. Accused No. 1, the main kingpin, is the brother of accused No. 2. Both were resident of Trichirappali. Accused No. 1 has been receiving narcotics from Mandasore, Madhya Pradesh, a place to which he belonged. Another brother of accused No. 1 named Durga Shankar was staying in the village Khonti in Mandasore District, Madhya Pradesh along with his parents. The father of accused Nos.1 and 2 used to cultivate opium and their brother Durga Shankar used to get opium and heroin and send the same to Trichy. The consignment in question was to be received and sold with the help of accused No. 3 for ultimate export to Sri Lanka through accused No. 6, Mohd. Sabeer. The High Court in appeal having confirmed the conviction and sentence of accused Nos. 1, 2, 3 and 6, they are in appear on grant of leave.

2. AIR 2003 SC 4311.


The conviction of the appellants is based primarily on their statements recorded under Section 67 of the NDPS Act as also on the recovery except from accused No. 1/appellant No. 1. The court held thatAssailing, therefore, the statements made by each of the appellant under Section 67, it was vehemently contended by Mr. R.K.Jain, Senior Advocate that the statements on basis whereof the appellants have been found guilty are not voluntary and thus their conviction cannot be sustained. The statements of the appellants have been recorded by officers of Department of Revenue Intelligence who are not police officers within the meaning of Section 25 of the Evidence Act, 1872. The confessional statements recorded by such officers are admissible in evidence. Learned counsel though not questioning the admissibility of the said statements contends that the same were obtained by torture and harassment and are involuntary and, therefore, the conviction of the appellants cannot be sustained. The delay in recording of the statements of the appellants is put forth as one of the reasons to support the contention that the statements were involuntary. Learned counsel submits that after apprehending truck and the car on the road at about noon time on 15th May, 1993, the seizure of the narcotics had taken place between 6 to 9 p.m. at the Customs House and the statements of accused Nos.2, 3 and 6 were recorded on the next day i.e. on 16th May, 1993 and the statement of accused No. 1 was recorded on 17th May, 1993. It may be noted that accused Nos. 2, 3 and 6 were apprehended on the spot on 15th May, 1993 whereas accused No. 1 was arrested on 16th May, 1993. The courts below on appreciation of evidence have neither doubted the recovery nor has found the statements to be involuntary The officer who conducted the arrest, search and seizure was an empowered Gazetted Officer of the department. This fact is not in dispute. According to Mr. Vasudev, learned senior counsel for the respondent, Section 42(2) is not applicable when an empowered Gazetted Officer conducts the arrest, search andseizure. Counsel submits that there was no obligation on the officer to comply with the requirement of Section 42(2) of the NDPS Act. It was also contended, in the alternative, that Section 42(2) of the NDPS Act was complied with. 10. The High Court in the judgment impugned has held that, on facts found, Section 41 of the NDPS Act alone was applicable and Section 42(2) was not attracted and, therefore, the judgments rendered under Section 42(2) of the NDPS Act relied upon by the appellants have no relevance. A xerox copy of the gist of intelligence was furnished to the appellants during the proceeding under the preventive detention law through the


Superintendent, Central Prison, Salem on 22.6.1993. A learned Single Judge of the High Court considering this writing to be a definite information about the definite commission of the offence under the NDPS Act with reference to car number, persons, lorry expected to arrive at that place and holding that Section 42 of the NDPS Act was squarely applicable and that it being a mandatory provision not having been complied with, the petitioners were entitled to be released on bail. The view expressed in the order, deciding bail application was, of course, prima facie. In the background, the further contention of Mr.Jain is that if Section 42(2) had been complied with, it would have been so pleaded by the respondent before the High Court when bail application came to be considered and the respondent would also have filed the requisite document along with challan to show compliance of Section 42(2) of the NDPS Act. The learned counsel submits that the document in purported compliance of Section 42(2) was filed by the respondent only after the decision of the bail application with a view to fill up the lacuna as a result of the observations made by the High Court in the order granting bail. In view of our conclusion that Section 42(2) is not applicable when search, seizure etc. is conducted by a Gazetted Officer under Section 41(2) and (3), the further contention of Mr. Jain that an attempt was made by the respondent to fill up lacuna to show compliance of Section 42(2) of the NDPS Act as a result of observations made in the order granting bail to the appellants as noticed hereinbefore becomes inconsequential and, therefore, it is not necessary to examine it. For the foregoing reasons, the impugned judgment of the High Court cannot be faulted. Thus, sustaining the conviction and sentence of the appellants, the appeals are dismissed.

3 Appellants: Bharatbhai Bhagwanjibhai

Vs. Respondent: State of Gujarat

Decided On: 29.10.20023

Facts The Statement of Objects and Reasons of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as the “NDPS Act”) categorically records the inadequacy of the existing legislation to combat illicit drug traffic and drug abuse, both at the national and international levels and it is by reason of such deficiencies in the existing laws, the legislature 3. AIR 2003 SC 7.


thought it prudent to consolidate the same and bring about a comprehensive legislation so as to meet the exigencies of the situation. A plain (SIC) at the provisions of the Act read with the Statement of Objects and the Preamble would depict the intent of legislature as regards the offences under the said consolidated legislation, which stands expressed in rather explicit language as one of the most heinous ones in nature. This Court, however, in consonance with criminal jurisprudence of the country has been insisting on strict compliance of the safe-guards provided under the Statute so as to be in tune therewith. At this juncture, however, it would be convenient to advert to the contextual facts briefly : The factual score records that on 23rd January, 2000, Inspector Mr. Katara along with two Head Constables and four Constables was on patrolling duty and whilst on duty at the bus stand at Chowk in Upset at about 3.00 p.m. it was noticed that the accused on seeing the police started running. This undue movement however aroused the curiosity and as such accused was intercepted and upon having the presence of two Panchas was searched which however led to the disclosure of small size plastic bag containing Charas of about 12 gms. in weight. The inspector lodged a complaint at about 1630 hours and necessary entries were made in the records. The substance found in the plastic bag was forwarded to the Forensic Science Laboratory for opinion and all necessary formalities thereafter were complied with culminating into the filing of the charge-sheet. The learned Sessions Judge framed the charge against the accused who pleaded ‘not guilty’ and as a matter of fact in his statement under Section 313 Cr.P. Code, the appellant has stated that the evidence stands created, as he was not aware of any such incident as noticed above. The learned Sessions Judge, however, on the basis of available records convicted the accused person and sentenced as noticed earlier. The High Court, however, confirmed the conviction as well as sentenced the accused to suffer rigorous imprisonment for 10 years and a fine of Rs. 1.00 lakh with a default clause as well. The court held thatThe principal contention raised that since the deterrent punishments are prescribed under the NDPS Act, the legislature has taken care to incorporate several provisions in Chapter V of the Act and as interpreted by this Court, the provisions are mandatory in nature and non-compliance therewith would completely vitiate the trial. It is on this score it has been contended in support of the appeal that by reason of the factum of ascertainment of the wishes and desires of the accused as regards the search and seizure and that being a mandatory requirement and there being admitted non-compliance therewith, question of either maintaining the guilt of the accused person by the Additional Sessions Judge or confirmation


thereof by the High Court would not arise. In this context Section 50 has been very strongly emphasised, which we feel it convenient to set out along with Sections 51 and 57 on which the appellant also laid strong emphasis On a reading of the aforesaid provisions thus, it appears that Section 51 of the Narcotics Act permits introduction of Section 4 of the Criminal Procedure Code even in the matter of investigation, searches, seizures, etc. As regards the provisions of Section 57, we do not find any infraction thereof. As such no question can be raised as regards the intimation of arrest and seizureand a report to that effect. The learned Advocate in support of the appeal further contended that the decision of this Court in Ahmed v. State of Gujarat MANU/SC/0528/2000 : 2000(71)ECC459 , upon reference to both Balbir and Baldev (supra) came to a conclusion of the applicability of Section 50 in all cases of NDPS. Unfortunately, however, the reliance on Ahmed (supra) is totally misplaced by reason of the fact that this Court in Ahmed was considering the issue of empowered officer or a duly authorised officer. This Court went on to record that to ensure fairness in the search itself and for compliance with Section 50 of the Act, no differentiation can be made whether the search is being made by the empowered officer, who obviously is an officer of a gazetted rank or the authorised officer, who may be a subordinate officer to whom the empowered officer authorises. This Court went on to observe that a combined reading of the provisions of Sections 42 and 50would make it crystal clear that wherever a search of a person is about to be made on the basis of personal knowledge or information received in that behalf, then if the person to be searched requires to be taken to a gazetted officer or the nearest Magistrate, the same must be complied with and failure to comply with the same would constitute an infraction of the requirements of the provisions of Section 50, which would ultimately vitiate the conviction and it is on this (sic) this Court relied upon the plain and categorical language used by the legislature in Section 50. The decision in Ahmed (supra) does not lend any credence to the submissions in support of the appeal. The High Court in fact recorded a categorical satisfaction as regards the acceptance of evidence as credible and trustworthy and we also do not find any reason to record a difference opinion in regard thereto. 10. On the wake of the aforesaid, we are not inclined to interfere with the order of the High Court. As such this appeal fails and is dismissed.


4 Appellants: State of Himachal Pradesh

Vs. Respondent: Pawan Kumar

WITH Appellants: State of Rajasthan

Vs. Respondent: Bhanwar Lal

Decided On: 08.04.20054

Facts In view of difference of opinion between two learned Judges who heard the appeal, the matter has been placed before this larger bench and the question for consideration is whether the safeguards provided by Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’ or ‘the Act’) regarding search of any “person” would also apply to any bag, briefcase or any such article or container etc., which is being carried by him. The essential facts of the case, which are necessary for decision of the appeal, may be stated in brief. According to the case of the prosecution, Hukum Singh and Munshi Ram, Head Constables and some police personnel were checking buses at the bus stand, Mandi in the night of 18.7.1994. While checking a bus at about 8.45 p.m., they noticed that the accused Pawan Kumar (respondent herein), who was carrying a bag, Ex.P3, slipped out from the rear door of the bus and thereafter started running towards Subzi Mandi side. The police personnel got suspicious and after a chase apprehended him near the gate of bus stand. They felt smell of opium emitting from the bag and, therefore, telephonically informed Prem Thakur, Deputy S.P./S.H.O., P.S. Sadar, Mandi. Prem Thakur came to the spot and inquired from the accused whether he wanted to be searched by police or by a Magistrate. The accused disclosed his name and expressed his willingness to be searched by the police. A search of the accused and the bag being carried by him was then conducted and 360 gms. of opium wrapped in polythene was found inside the bag. Two samples of the recovered opium, each weighing 20 gms. were taken and were sealed separately and a seizure memo was prepared. On the basis of the Ruka Ex.P8, an FIR was lodged at the Police Station and thereafter usual investigation followed which culminated in filing of a charge-sheet against the accused. The leaned Sessions Judge, Mandi, by the judgment and order dated 26.11.1994 convicted the respondent (accused) under Section 18 of the NDPS Act and sentenced him to undergo rigorous 4. AIR 2005 SC 2265.


imprisonment for 10 years and to pay a fine of Rs. 1 lakh. The respondent preferred an appeal against his conviction and sentence before the High Court of Himachal Pradesh. The High Court held that the opinion given by the Chemical Examiner regarding the substance recovered from the bag of the accused could not be treated to be opinion of the Chemical Examiner as defined under the Act and the Rules and, therefore, the same had to be excluded from consideration. It was further held that the provisions of Section 50 of NDPS Act had not been complied with while conducting the search of the bag and, therefore, recovery of opium from the possession of the accused was not established. On these findings, the appeal was allowed by the judgment and order dated 26.8.1996 and the conviction of the respondent was set aside. The court held thatThe State of Himachal Pradesh preferred the present appeal by special leave challenging the judgment of acquittal passed by the High Court. The appeal was initially heard by a Bench of two learned Judges. Hon’ble Y.K. Sabharwal, J. held that the view taken by the High Court that the report of the Chemical Examiner could not be taken into consideration was not correct. The finding recorded by the High Court that the prosecution had failed to prove that any incriminating substance had been recovered from the possession of the accused was accordingly reversed. Regarding the applicability of Section 50 of the NDPS Act On this fact situation, it cannot be held that the search was not of a person but was of a bag. Both are inextricably connected. It has to be held that the search was that of the respondent’s person. Clearly, Section 50 of the NDPS Act was applicable but was not complied. Therefore, the conviction of the respondent could not be sustained and the High Court rightly held that Section 50 had been breached.” search any person” occurring in Sub-section (1) of Section 50 of the Act. Learned counsel for the accused has submitted that the word “person” occurring in Section 50 would also include within its ambit any bag, briefcase or any such article or container, etc., being carried by such person and the provisions of Section 50 have to be strictly complied with while conducting, search of such bag, briefcase, article or container, etc. Learned counsel for the State has, on the other hand, submitted that there is no warrant for giving such an extended meaning and the word “person” would mean only the person himself and not any bag, briefcase, article or container, etc., being carried by him. An incriminating article can be kept concealed in the body or clothings or


come within the ambit of the word “search of person”. One of the tests, which can be applied is, where in the process of search the human body comes into contact or shall have to be touched by the person carrying out the search, it will be search of a person. Some indication of this is provided by Sub-section (4) of Section 50 of the Act, which provides that no female shall be searched by anyone excepting a female. The legislature has consciously made this provision as while conducting search of a female, her body may come in contact or may need to be touched and, therefore, it should be done only by a female. In the case of a bag, briefcase or any such article or container, etc., they would not normally move along with the body of the human being unless some extra or special effort is made. Either they have to be carried in hand or hung on the shoulder or back or placed on the head. They can be easily and in no time placed away from the body of the carrier. In order to make a search of such type of objects, the body of the carrier will not come in contact of the person conducting the search. Such objects cannot be said to be inextricably connected with the person, namely, the body of the human being. Inextricable means incapable of being disentangled or untied or forming a maze or tangle from which it is impossible to get free. Coming to the merits of the appeal, the High Court allowed the appeal on the finding that the report of the Chemical Examiner had to be excluded and that there was non compliance of Section 50 of the Act. The learned Judges of this Court, who heard the appeal earlier, have recorded a unanimous opinion that the report of the Chemical Examiner was admissible in evidence and could not be excluded. In view of the discussion made earlier, Section 50 of the Act can have no application on the facts and circumstances of the present case as opium was allegedly recovered from the bag, which was being carried by the accused. The High Court did not examine the testimony of the witnesses and other evidence on merits. Accordingly, the matter has to be remitted back to the High Court for a fresh hearing of the appeal. 24. In the result, the appeal is allowed. The judgment and order dated 26.8.1996 of the High Court is set aside. The appeal preferred by the respondent Pawan Kumar shall be heard afresh by the High Court in the light of the findings recorded by this Court and in accordance with law. The High Court by a very cryptic judgment held that the provisions of Section 50 of the NDPS Act were not complied with as the accused was not informed of his right to be searched in presence of a Magistrate or a Gazetted Officer and accordingly allowed the appeal and set aside the conviction and sentence of the accused. For the reasons discussed earlier, the view taken by the High Court cannot be sustained as it was a case of search of an attaché which was carried by the


accused. The appeal is accordingly allowed and the judgment and order dated 5.10.2001 of the High Court is set aside. The matter is remitted back to the High Court for a fresh consideration of the appeal on merits and in accordance with law

5 Appellants: Jayant Kumar Sharma

Vs. Respondent: State of Madhya Pradesh

Decided On: 18.04.19915

Facts- The appellant has been prosecuted for violating the provisions of Clause 6(4) of the Madhya Pradesh (Khadya Padarth) Sarvajanik Nagrik Poorti Vitran Scheme, 1981, and convicted under Section 3(7) of the Essential Commodities Act. He was sentenced one year imprisonment, the validity of which has been impeached in this appeal. The appellant was given permit for the sale of foodgrains in the village Kotetara at the weekly bazar held once in a week. On the date of the weekly bazar he lifted certain foodgrains from the Baradwara branch of the Food Corporation of India. It was in the evening at about 5.00 p.m. on that day. He had no vehicle except, the bullock-cart to transport the foodgrains to Kotetara. Kotetara is about 14 kilometers away from Baradwara. He has no shop at Kotetara for storing the foodgrains and therefore, he kept the same at Baradwara at his cycle-shop. What happened thereafter is in dispute. According to the appellant he straight went to the Baradwara Police Station and informed the Station House Officer (SHO) that he has kept the foodgrains in his cycle-shop since he could not transport the same to Kotetara. According to the SHO upon getting the information that the appellant has concealed foodgrains without distributing the same at Kotetara he raided the place and seized the foodgrains. At the time of seizure the appellant gave an application that he has kept the foodgrains at that place since he could not get conveyance for transporting the foodgrains to Kotetara. Ex. P.2 is the application admittedly given by the appellant to the SHO. If that application has been given by the appellant in the Police Station as contended by him the police indeed have no case to prosecute the appellant. The court held that We have heard counsel on both sides and also perused the entire material on record. We are inclined to believe that the appellant has given Ex. P.2 to the SHO at the Police Station. This is also corroborated from the contents of the First Information Report in which there is reference to the 5. AIR 1991 SC 1501.


fact that the appellant did visit the Police Station before the search and seizure of the foodgrains by the SHO. Even otherwise it will be seen that the prosecution of the appellant is unjustified. The foodgrains were required to be distributed on the shandy day at Kotetara. He lifted the foodgrain at Baradwara in the evening of such a day. So there was no question of distribution of the foodgrains on that day itself. He has to wait for the next weekly shandy day. He has not attempted to sell the same at Baradwara. He has stored it at the cycle-shop. It is, therefore, not legitimate to infer that the appellant has kept concealed the foodgrains for sale in the black market. In the result we allow the appeal, set aside the conviction and sentence, and acquit the appellant from all the charges levelled against him.

6 Appellants: Khet Singh

Vs. Respondent: Union of India (UOI)

Decided On: 20.03.20026

Facts- This appeal is directed against the judgment of the High Court of Rajasthan challenging the conviction and sentence of the appellant under Sections 17 18 & 21of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “NDPS Act”). Appellant had been sentenced to undergo 10 years’ rigorous imprisonment and a fine of Rs. 1 lakh and in default of payment of fine further to undergo two years and six months’ rigorous imprisonment. 2. Appellant Khet Singh was tried along with one Kanhaiya Lal for the aforesaid offences and Kanhaiya Lal was acquitted by the Sessions Court. The case of the prosecution is that on 6.5.1989, PW6 Shri Narain Das Lakhara, Inspector, Customs Department, Jaisalmer, along with the Superintendent of Customs and two other constables was proceeding on patrolling and checking duty towards Ramgarh. Near Brahamsar crossing, they started checking several motor vehicles as it was suspected that there might be drug trafficking. In truck no. RJC 1472, the appellant was found sitting with a cloth basket in his hand. During the search, a polythene bag was found in the basket which contained some black substance suspected to be opium. Appellant Khet Singh and Kanhaiya Lal along with the cloth basket were brought to the Office of the Customs. In the office of the Customs, the opium was seized, samples were taken from it and were sealed. Appellant and 6. AIR 2002 SC 1450.


Kanhaiya Lal were questioned. The appellant stated that he had purchased the seized opium from Kanhaiya Lal. The samples were sent for chemical examination and the report from the Forensic Science Laboratory revealed that the sample was ‘opium’. The court held thatThe appellant contended before the trial court that there was violation of Section 50 of the NDPS Act as the search and seizure was not made in the presence of a Gazetted Officer or a Magistrate and that the appellant was not told in advance that he had a right to demand that the search to be effected shall be in the presence of a Magistrate or a Gazetted Officer. This plea was rejected on the ground that search and checking was being conducted of the vehicles and it was during the course of this general search that the appellant was found travelling with the opium and hence Section 50 of the NDPS Act is not applicable and that the same would apply in the case of a search on the person of the appellant. The same plea was raised before the High Court and was rightly rejected. 4. The learned Counsel, Mr. Doongar Singh who appeared on behalf of the appellant raised a contention that though the search and seizure was effected near Brahamsar crossing, no was prepared and no samples were taken from the contraband article; the seizure memo was prepared in the Office of the Customs Department and the samples were also taken at the Office of the Customs Department, and that this has caused serious prejudice to the appellant. According to the appellant’s Counsel, the seizure memo should have been prepared at the place where the contraband article was seized from the accused. He further pointed out that the recovery was effected but the contraband article was not sealed at the spot and the truck along with the driver and the appellant were brought to the office of Customs Department at Jaisalmer and that there were about 10 other persons in the truck and all of them were allowed to go. The learned counsel further contended that had the search been prepared at the spot, it could have been satisfactorily proved that it was from the appellant’s possession that the bag was taken and it is doubtful whether the bag belonged to the appellant or to any other passengers. In the present case, the learned Counsel for the appellant contended that the police officer did not prepare the seizure at the spot and thereby violated the provisions of law. Therefore, it is argued that the evidence collected by the prosecution was not admissible. The learned Counsel further contended that the directions contained in the Standing Instructions issued by the Narcotics Control Bureau were not complied with. Our attention was drawn to clause 1.5 of the Standing Instruction No. 1/88 issued by the Narcotics Control Bureau, New The instructions issued by the Narcotics Control Bureau, New Delhi are to be followed by the officer in-charge of the


investigation of the crimes coming within the purview of the NDPS Act, even though these instructions do not have the force of law. They are intended to guide the officers and to see that a fair procedure is adopted by the officer in-charge of the investigation. It is true that when a contraband article is seized during investigation or search, a seizure should be prepared at the spot in accordance with law. There may, however, be circumstances in which it would not have been possible for the officer to prepare the at the spot, as it may be a chance recovery and the officer may not have the facility to prepare a seizure at the spot itself. If the seizureis effected at the place where there are no witnesses and there is no facility for weighing the contraband article or other requisite facilities are lacking, the officer can prepare the seizure at a later stage as and when the facilities are available, provided there are justifiable and reasonable grounds to do so. In that event, where the seizure is prepared at a later stage, the officer should indicate his reasons as to why he had not prepared the at the spot of recovery. If there is any inordinate delay in preparing the seizure , that may give an opportunity to tamper with the contraband article allegedly seized from the accused. There may also be allegations that the article seized was by itself substituted and some other items were planted to falsely implicate the accused. To avoid these suspicious circumstances and to have a fair procedure in respect of search and seizure, it is always desirable to prepare the seizureat the spot itself from where the contraband articles were taken into custody. Law on the point is very clear that even if there is any sort of procedural illegality in conducting the search and seizure, the evidence collected thereby will not become inadmissible and the Court would consider all the circumstances and find out whether any serious prejudice had been caused to the accused. If thesearch and seizure was in complete defiance of the law and procedure and there was any possibility of the evidence collected likely to have been tampered with or interpolated during the course of such search or seizure, then, it could be said that the evidence is not liable to be admissible in evidence. In the present case, though the was not prepared at the spot where the accused persons were found to be in possession of the contraband article but the same was done only at the Office of the Customs Department while the accused persons were very much present throughout, there was no allegation or suggestion that the contraband article was, in any way, meddled with by the officers. Therefore, we are of the view that the appellant has rightly been found to be in possession of the opium. We find no reason to interfere with the conviction and sentence entered against the appellant. The appeal is dismissed accordingly.


7 Appellants: Abdul Rahman

Vs. Respondent: State of Kerala

Decided On: 03.04.19977

Facts- The appellant in this case was convicted under Section 20(b)(i) of the Narcotic Drugs & Psychotropic Substances Act for possessing contraband ganja. According to the prosecution case, some quantity of ganja was recovered when the person of the accused was searched and the remaining quantity of ganja was recovered from the premises of the accused. Accepting the prosecution case, the trial court convicted the accused and the High Court has upheld the conviction. The High Court has not however accepted the alleged recovery of ganja from the premises of the accused but the case of recovery of 56 small packets of ganja from the pockets of the underwear of the accused has been accepted by the High Court. It, however, appears that such recovery has not been supported by PWs 3 and 4 who are the witnesses to such seizure. Moreover, on the personal search register, it was not stated that the accused was wearing underwear from the pockets of which the said small packets of ganja had been recovered The court held that In the general diary there is no mention of the seizure of 56 packets of ganja. The trial court has brushed aside such facts by indicating that such lapses did not affect the prosecution case in view of the other evidences. It however appears to us that apart from such infirmity, the mandatory provision of Section 50 of the Narcotic Drugs & Psychotropic Substances Act has not been complied with in this case. The accused was not told that he could get himself searched in the presence of a Gazetted Officer or before a Magistrate under the Narcotic Drugs & Psychotropic Substances Act. The alleged seizure was made by searching the person of the accused straightaway by the police officer. Even though such search and seizure had been made prior to the decision of the Court in Balbir Singh’s case 1994CriLJ3702 the illegality of such search and seizure as indicated by this Court operates. Accordingly even on the score of illegality in search and seizure the accused appellant is entitled to get an order of acquittal. We, therefore, allow this appeal and set aside the conviction and sentence. The appellant is directed to be released forthwith if he is not wanted in connection with any other criminal case.

7. (1997) 11 SCC 93.

Chapter 9

CASE DIARY

1 Ganga Dhar Kalita

Vs. State of Assam and others1

Facts This appeal is directed against judgment and order dated 20.3.2014, passed by the Gauhati High Court in Criminal Petition No. 287 of 2009, whereby said Court has dismissed the petition u/s. 482 of the Code of Criminal Procedure, 1973 (for short “the Code”) and declined to quash the criminal proceedings initiated against the appellant. We have heard learned counsel for the parties and perused the papers on record. Brief facts of the case are that a First Information Report dated 25.1.2009 was got lodged by respondent No. 3 Rabindra Nath Kalita at Police Station, Panbazar, District Kamrup, Assam. The present appellant challenged the First Information Report by filing a petition u/s. 482 of the Code on the ground that the dispute between the parties is of civil in nature. It is also pleaded by the appellant that a title suit No. 477 of 2008 has already instituted by Birendra Kumar Das. It is also urged that another suit No. 293 of 2009 was filed before the Court of Civil Judge No. 3, Guwahati, by the informants (respondent Nos. 3 and 4) seeking cancellation of the power of attorney in question The court held that Learned counsel for the appellant argued before us that since there are two suits already instituted, one filed by Birendra Kumar Das and another filed by the complainants, as such, the criminal proceedings in the matter are nothing but abuse of process of law.

1. 2015 Indlaw SC 279.

Case Diary 203

The allegations made in the First Information Report disclose that there are serious allegations against the appellant (accused) that he fraudulently got executed the power of attorney, and Kaustav K. Kalita was minor (aged nine years) on the date when the deed was said to have been signed by him. It is also alleged that respondent No. 5 Yuva Raj Borgohain, who is said to be another person who executed the power of attorney, was away from India on the date of alleged execution of the Deed No doubt, where the criminal complaints are filed in respect of property disputes of civil in nature only to harass the accused, and to pressurize him in the civil litigation pending, and there is prima facie abuse of process of law, it is well within the jurisdiction of the High Court to exercise its powers u/s. 482 of the Code to quash the criminal proceedings Having considered the law laid down by this Court, as above, and further considering the facts and circumstances of the case and seriousness of the allegations made against the accused, particularly that one of the persons said to have executed the power of attorney was minor, and another was away from India, in our opinion, even if the civil suit was instituted by the complainant, the High Court committed no error of law in declining to interfere with the criminal proceedings initiated against the appellant in the present case. Therefore, we are not inclined to interfere with the order passed by the High Court dismissing the petition u/s. 482 of the Code. Accordingly the appeal is dismissed. However, we clarify that the observations made in our order would not be read to influence the civil or criminal proceedings pending between the parties. Appeal dismissed jkhkljh/kjkl;

2 Tomaso Bruno and another

Vs. State of Uttar Pradesh2

Facts- This appeal is directed against the judgment dated 4.10.2012 passed by Allahabad High Court in Criminal Appeal No.5043 of 2011 in which the High Court confirmed the conviction of the appellants u/s. 302 read with S. 34 IPC and the sentence of life imprisonment and fine of Rs. 25,000/- imposed on each of them.

2. SC 389, 2015.


Briefly stated, case of the prosecution is that three Italian nationals namely Tomaso Bruno (Accused No.1), Elisa Betta Bon Compagni (Accused No. 2) and Francesco Montis (Deceased) came as tourists to India from London and reached Mumbai on 28.12.2009. After visiting several places of interest together, these persons arrived at Varanasi on 31.1.2010 and they checked in at Hotel Buddha, Ram Katora, Varanasi. The hotel management, after checking all the relevant identity proofs, allotted Room No. 459 in the hotel to them at about 5.00 p.m. For two days the accused and deceased went around the city. On 3.2.2010, the deceased complained of a mild headache on account of which, they went out late and returned early and thereafter, stayed in the room for the entire evening as they had planned to see the ‘Subahe Banaras’ the next morning. On 4.2.2010 at about 8.00 a.m. A-2 informed Ram Singh (PW-1), the Manager of hotel Buddha, Varanasi, that the condition of the deceased was not fine, after which the accused, PW-1 and others took the deceased to S.S.P.G. Hospital, Varanasi for treatment, where the doctors declared the ailing tourist as ‘brought dead’. . On the basis of the postmortem report and other materials, First Information Report in Case No. 34 of 2010 was registered on 5.2.2010. PW-12-Sagir Ahmad (SI) had taken up the investigation and proceeded to the place of occurrence i.e. hotel Buddha. During the spot-investigation, PW-12 collected bed-sheet, pillow, a towel and other material objects. The bedsheet contained marks of urine and stools and a black brown stain of the size of lip was found on the pillow cover. PW-12 also collected other articles from the room and also prepared Ex. P18- site plan at the place of occurrence. On 5.2.2010, further investigation was taken over by Shri Dharambir Singh (PW-13) who recorded the statement of the waiters in the hotel and also recorded the statement of the accused persons The court held that The accused stated that on 4.2.2010 morning they went out at 4.00 a.m. for ‘Subhae Banaras’, but deceased was not well, so he was left sleeping in the room and when they came back they found Francesco in a serious condition. On the basis of material collected during investigation, PW-arrested the accused persons after appraising them with the grounds of arrest. After completion of investigation, chargesheet u/s. 302 read with S. 34 IPC was filed by the police in the court against accused Nos. 1 and 2. To substantiate the charges against the accused, prosecution has examined thirteen witnesses and exhibited material documents and objects. The accused were questioned u/s. 313 Cr.P.C. about the incriminating evidence and the accused denied all of them. The accused reiterated whatever was earlier stated before I.O., that on the fateful night of 3.2.2010, they ordered two plates of fried rice and all three of them dined together. Next day morning they went out at 4.00 a.m. for ‘Subhae Banaras’, but deceased was not well and so he

Case Diary 205

was left sleeping in the room. When they returned to the hotel at 8.00 a.m., Francesco Montis was lying on the bed in an unconscious condition. The second accused stated that she had informed the hotel manager that Francesco Montis was very serious and all the staff, PW-1 manager and accused persons took Montis to the hospital where he was declared ‘brought dead’. The second accused clarified that the marks of lip on the cover were not hers. Upon consideration of evidence, trial court convicted the accused persons u/s. 302 read with S. 34 IPC and sentenced them to undergo life imprisonment, imposed a fine of Rs.25,000/- each with a default clause. Aggrieved by the same, the appellants preferred appeal before the High Court wherein by the impugned judgment, High Court confirmed the conviction and the sentence. Assailing the verdict of conviction and sentence of life imprisonment, the appellants have preferred this appeal by wa To invoke S. 106 of the Evidence Act, the main point to be established by the prosecution is that the accused persons were present in the hotel room at the relevant time. PW 1 Ram Singh-Hotel Manager stated that CCTV cameras are installed in the boundaries, near the reception, in the kitchen, in the restaurant and all three floors. In his evidence, PW-1 has stated that he monitors the affairs of the hotel on CCTV while sitting in reception. PW-1 further stated that he saw the CCTV footage at the relevant time and on the fateful night no person was having ingress or egress to the said room. PW-13-Dharambir Singh, investigating officer, also stated that he saw the full video recording of the fateful night on CCTV but he has not recorded the same in his casediary as nothing substantial emerged from the same. Even if we were to accept that the death was due to strangulation which was caused by an object, the non-recovery of alleged object weakens the prosecution case. Furthermore, it has to be pointed out that it has come in evidence that the deceased was a strongly built man and in the circumstances, it is rather strange that no external marks were found on the body which could demonstrate that there had been a struggle. The absence of struggle and the corresponding external injuries is yet another vital aspect which had gone unnoticed by the courts below Upon consideration of the facts and circumstances of the case, we are of the view that the circumstances and the evidence adduced by the prosecution do not form a complete chain pointing to the guilt of the accused and the benefit of doubt is to be given to the accused and the conviction of the appellants is liable to be set aside. In the result, conviction of the appellants under Section 302/34 IPC is set aside and the appeal is allowed. Appellants be released forthwith. Appeal allowed


3 People’s Union for Civil Liberties and another

Vs. State of Maharashtra and others3

Facts It is not necessary to notice the facts of the three writ petitions in detail. Suffice it to say that while considering the above prayers, the High Court directed the following guidelines to be followed necessarily and mandatorily by the police in the State: Whenever the respondents-police are on the receipt of intelligence or a tip off about the criminal movements and activities pertaining to the commission of grave crimes, it shall be entered into a casediary. If the receiving authority is the police officer of a particular police station, the relevant entry has to be made in the General diary and if the receiving authority is the higher police officer, the relevant entry to the said effect has to be made by a separate diary kept and provided therefor and then pursue further in accordance with the procedural law. Regarding any encounter operation is over and persons are killed or injured and the same is reported to either orally or writing to the police in furtherance of S. 154 of the Criminal Procedure Code, it shall be registered in Crime Register of that particular police station and that further the said First Information Report along with copies to the higher officials and the Court in original shall be sent with immediately without any delay whatsoever through proper channel so as to reach to the Court without any delay at all. A report, as enjoined u/s. 157(1) of the Criminal Procedure Code, shall also be followed necessarily by the concerned police station. After setting the law in motion by registering the First Information Report in the Crime Register by the concerned police officer of the particular police station, the investigating staff of the police shall take such steps by deputing the man or men to get the scene of crime guarded so as to avoid or obliterate or disfigure the existing physical features of the scene of occurrence or the operation encounter. This guarding of the scene of occurrence shall continue till the inspection of occurrence takes place by the investigating staff of the police and preparation of spot panchnama and the recovery panchnama. The court held that The inquest examination shall be conducted by the investigating staff of the police on the spot itself without any delay and statements of the inquest witnesses are to be recorded u/s. 161 of the Code of Criminal Procedure and the inquest panchnama shall be sent along with the 3. SC 456, 2014.

Case Diary 207

above case record prepared along with the First Information Report without any delay whatsoever to the Court. If the injured criminals during the operation encounter are found alive, not only that they should be provided medical aid immediately but also arrangements and attempts shall be taken by the police to record their statements u/s. 164 of the Criminal Procedure Code either by a Magistrate, if possible and if not, by the Medical Officer concerned duly attested by the hospital staff mentioning the time and factum that while recording such statements the injured were in a state of position that they will be able to give statements and the connected certificates by the doctors appended thereto. After the examination of further witnesses and completing the investigation inclusive of securing the accused or accused persons, the concerned police is directed to send final report to the Court of competent jurisdiction as required u/s. 173 of the Criminal Procedure Code for further proceeding. PUCL was not satisfied with the adequacy of the reliefs granted by the High Court and, consequently, it filed three SLPs against the judgment and order dated 22-25.02.1999. Few other matters have been connected with these three petitions. 5. After initial grant of leave, the matters came up for consideration before the two-Judge Bench on 05.11.2008. On that day, Mr. Prashant Bhushan, learned counsel appearing for the appellants placed before the Court the guidelines issued by the National Human Rights Commission (for short, “NHRC”) and also his own suggestions. Looking at the gravity of the matter, the Court on that day directed issuance of notice to the Union of India, States and Union Territories for consideration of issuance of final directions / guidelines in the matter by this Court. After the notice was issued, the Union of India, States and Union Territories, have filed their affidavits. The inquest examination shall be conducted by aforesaid independent investigating team on the spot itself without any delay and statements of the inquest witnesses are to be recorded u/s. 161 of the Code of Criminal Procedure and the inquest Panchnama shall be sent along with the above case record prepared along with the First Information Report without any delay whatsoever to the Court. In light of the above discussion and having regard to the directions issued by the Bombay High Court, guidelines issued by NHRC, suggestions of the appellant - PUCL, amicus curiae and the affidavits filed by the Union of India, State Governments and the Union Territories, we think it appropriate to issue the following requirements to be followed in the matters of investigating police encounters in the cases of death as the standard procedure for thorough, effective and independent investigation:


If the family of the victim finds that the above procedure has not been followed or there exists a pattern of abuse or lack of independent investigation or impartiality by any of the functionaries as above mentioned, it may make a complaint to the Sessions Judge having territorial jurisdiction over the place of incident. Upon such complaint being made, the concerned Sessions Judge shall look into the merits of the complaint and address the grievances raised therein. The above guidelines will also be applicable to grievous injury cases in police encounter, as far as possible. Accordingly, we direct that the above requirements / norms must be strictly observed in all cases of death and grievous injury in police encounters by treating them as law declared u/art. 141 of the Constitution of India. Order accordingly

4 Saurabh Kumar

Vs. Jailor, Koneila Jail and another4

Facts This habeas corpus petition is filed by one Saurabh Kumar who is in Koneila Jail, Dalsingsarai, District Samastipur (Bihar). In brief the case of the petitioner is that he was XII pass and wanted to leave the village in search of a decent job. In that connection he made an application for passport. On 30.6.2013 the police had called the petitioner to the Police Station for enquiry on his application for passport and after reaching inside the police station he was locked up. Thereafter on 1.7.2013 early morning, the petitioner was taken to the residence of one Shri Tripathi, Judicial Magistrate who is arrayed as 6th respondent in this writ petition. There, the petitioner was beaten with lathi by DSP, Manish Kumar Suman, who is arrayed as 9th respondent herein, in the presence of the said Judicial Magistrate and it is also alleged that while beating he was told that it is a reward for his parents for reporting or complaining against him to the Supreme Court, and insulted him by stating that low caste people should not become malik of the land of the upper caste people like mausaji. Thereafter, the petitioner was taken from the house of the Judicial Magistrate to the Koneila jail where he is kept under detention. The petitioner states that he was unnecessarily and illegally detained by the police. It is also a further case of the petitioner that the Judicial Magistrate, 4. SC 459, 2014.

Case Diary 209

Shri Tripathi also caused prejudice as he is out of vengeance against his parents. When they approached the local MLA, the MLA contacted the SHO of Dalsingsarai, District Samastipur, and the police informed the MLA that there is no complaint against the writ petitioner and they are going to release him but in spite of repeated requests they have not released him. Hence, the petitioner prayed for grant of a writ of habeas corpus u/Art. 32 read with Art.14, 21 & 22 of the Constitution of India directing the Respondents to produce the petitioner Saurabh Kumar before this Hon’ble Court and also to direct the respondent-State to devise a way to prevent malicious arrest and detention by the police that too without maintaining necessary record and further to direct the State to pay the petitioner compensation considering that the detention is a black mark to his career prospects and future. Initially there were eleven persons shown as respondents. But later on, the petitioner has withdrawn respondent nos. 3 to 11 from the array of parties. The court held that After issuing notice two counter affidavits have been filed, one by respondent nos. 1, 2, 7 and 8 and the other by the sixth respondent, Tripathi, the Additional Chief Judicial Magistrate and Judge In-charge (Administration) Dalsingsarai, District Samastipur, Bihar. From these two affidavits, it appears that there were land disputes between petitioner’s family and one Rama Kant Singh. A Mortgage Suit No. 30/94 was filed against Banwari Roy, who is the grand-father of the petitioner and obtained a decree against him on 28.2.1997 by the Munsif Court. Thereafter, the grandfather of the petitioner preferred Title Suit bearing T.A. No. 17/99 against the said Rama Kant which was subsequently dismissed by the learned Additional District and Sessions Judge-I, Samastipur by order dated 1.6.2013. The said Rama Kant Singh filed an execution case for delivery of possession of the land. The Munsif (Civil Judge, Jr. Division, Dalsingsarai) ordered for deputing the police force for the delivery of the land to the decree- holder. In view of the said order, the 6th respondent- Tripathi directed the Nazir, Civil Court, Dalsingsarai to execute the decree passed by the learned Munsif and on 3.3.2013 the said decree was executed which was confirmed by the Munsif by his order dated 15.3.2013. When the matter came up before this Court, the learned counsel appearing for the petitioner Smt. Lily Isabel Thomas contended that the petitioner is in illegal custody and sought a direction for his release. This Court has pointed out to the counsel for writ petitioner about the counter affidavits filed by the respondents which show that the petitioner is an accused in a criminal case which was registered under Sections 147, 148, 149, 323, 427, 504, 379 and


386 of IPC and u/s. 27 of Arms Act and after such registration he was arrested and produced before the Addl. Chief Judicial Magistrate, Dalsingsarai, District Samastipur, Bihar and then he was detained in judicial custody. However, the counsel contended that a direction be given to the jailer- respondent No. 1 to produce the remand report of the petitioner as that itself shows the illegal detention The petitioner has for whatever reasons chosen not to do so. He, instead, has been advised to file the present petition in this Court which is no substitute for his enlargement from custody. We are also of the view that the Magistrate has acted rather mechanically in remanding the accused petitioner herein to judicial custody without so much as making sure that the remaining accused persons are quickly served with the process of the Court and/or produced before the Court for an early disposal of the matter. The Magistrate appears to have taken the process in a cavalier fashion that betrays his insensitivity towards denial of personal liberty of a citizen who is languishing in jail because the police have taken no action for the apprehension and production of the other accused persons. This kind of apathy is regrettable to say the least. We also find it difficult to accept the contention that the other accused persons who all belong to one family have absconded. The nature of the offences alleged to have been committed is also not so serious as to probablise the version of the respondent that the accused have indeed absconded. Suffice it to say that the petitioner is free to make an application for the grant of bail to the Court concerned who shall consider the same no sooner the same is filed and pass appropriate orders thereon expeditiously. 22. With the above observations I agree with the order proposed by my esteemed brother N. V. Ramana, J. Order accordingly

5 Sobaran Singh and others

Vs. State of Madhya Pradesh5

Facts This appeal is preferred against the judgment dated 16.3.2012 passed by the High Court of Madhya Pradesh Bench at Gwalior in Criminal Appeal No.353 of 2004.

5. SC 447, 2014.

Case Diary 211

The appellants herein are accused nos.1 to 3 in the case in Sessions Trial No.8/97, on the file of Additional Sessions Judge, Gohad, District-Bhind (M.P.) and they were tried for the offence punishable u/s. 302 read with S. 34 IPC and the Trial Court convicted them for the said offence and sentenced each one of them to undergo imprisonment for life and to pay a fine of Rs.500/-, in default to undergo Rigorous Imprisonment for one month. Challenging the conviction and sentence, the accused preferred appeal in Criminal Appeal No.353 of 2004 in the High Court and the same came to be dismissed by the impugned judgment and that is now under challenge in this appeal. Briefly, the case of the prosecution is as follows : PW5 Satyendra Singh, PW16 Brijendra Singh and deceased Narendra Singh are sons of PW7 Hanumant Singh. PW6 Uday Singh and PW10 Om Prakash are brothers of PW7 Hanumant Singh. On 6.9.1994 at 8.00 a.m. PW5 Satyendra Singh and PW16 Brijendra Singh had gone to attend call of nature in the drain (Nalah) and they heard the sound of weeping and alarm raised by PW10 Om Prakash and they went there and saw Narendra lying on the ground and accused no.3 Sardar Khan put his knee on his chest after holding his hands tight and accused no.1 Sobaran Singh and accused no.2 Suraj Singh tied his neck with a muffler (Safee) and accused no.1 Sobaran Singh was armed with a 12-bore gun and due to fear, they did not go near Narendra and in the meanwhile, PW6 Uday Singh and PW11 Vishwanath Sharma also rushed to the spot and on seeing them, accused nos.1 to 3 ran away. They found Narendra alive with injuries on the neck, chest and right knee and they carried him to the tube-well and thereafter, put him on the tractor-trolley and drove him to the hospital at Mau where he was declared dead by the Doctor. On dissection of the body, he found contusion on sternum and ecchymosed underneath the contusion (rupture of small capillaries and ventricles) with tracheal rings and cricoids cartilage fractured. Pharynx and larynx were congested. He expressed opinion that death was caused due to strangulation (Asphyxia), 4-6 hours prior to autopsy and issued Exh.P16 post-mortem report. Thereafter, PW6 Uday Singh went to Mau Police Station and lodged a report, which was registered in the shape of Marg, u/s. 174 CrPC by Assistant Sub-Inspector of Police Balram Singh. During the investigation of Marg, statements of the witnesses were recorded. On 7.8.1995, PW9 Assistant Sub-Inspector Ram Naresh Singh Kushwah registered a case in Crime No.76/1995 against accused nos.1 to 3 for the alleged offence u/s. 302 read with S. 34 IPC and prepared Exh.P13 FIR. During investigation of the case, witnesses were examined and final report was filed. Charge u/s. 302 IPC was framed against accused nos.1 to 3 and they were found guilty and were sentenced as narrated


above and the appeal preferred by them was dismissed by the High Court. Challenging the same, accused nos.1 to 3 have preferred this appeal. The court held that The learned counsel for the appellants contended that the Marg Intimation Report shows that the complainant had only a suspicion against the accused and he has not stated about their involvement in the crime and the accused have been convicted merely on the evidence of the informant and other eye witnesses, who are none else, but the family members of the deceased, having enmity against the accused and the First Information Report came to be registered after nearly a year from the date of occurrence and on deliberation and afterthought, the statements of the material witnesses have been recorded falsely implicating the accused and there are embellishment and material contradictions in the statements of the witnesses and the investigation is biased and tainted and the prosecution has failed to prove the charge against the accused persons and the High Court fell in error while confirming the conviction imposed by the Trial Court and the impugned judgment is liable to be set aside. In the cross-examination, PW10 Om Prakash admitted that he was examined by police on the date of occurrence itself, namely 6.9.1994, and the said Marg diary statement is Exh.D/2-A, and he has stated therein that on the occurrence day in the morning Narendra took buffaloes to Banjara wale Har and after sometime, he went with his buffaloes and saw Narendra lying in the grass with white liquid coming from mouth and nose and he saw at a distance that accused no.2 Suraj Singh with a 12-bore gun, accused no.3 Sardar Khan and another person, who could not be identified, going down by crossing the drain (Nalah) and he ran to the tube-well and informed the same to others and he along with PW5 Satyendra Singh, PW6 Uday Singh and PW11 Vishwanath Sharma went to the occurrence place and found injured Narendra alive and they took him to the hospital at Mau, where he was declared dead and he has doubt on accused nos.1 and 3 about their involvement in the death of Narendra. The above version is the earliest in point of time wherein, he has not stated about the attack made by the assailants on Narendra. Moreover, he did not support the prosecution case in full and was declared as hostile. Our independent analysis of the evidence on the record coupled with the infirmities which we have noticed above has created an impression on our minds, that the prosecution has not been able to bring home guilt to the appellants beyond a reasonable doubt. The High Court even after noticing the infirmities, in our opinion, fell in error in confirming the conviction of the appellants. The reasons given by the High Court do not commend to us to sustain the conviction and sentence. They are neither sufficient nor adequate or cogent much less compelling to uphold the impugned judgment.

Case Diary 213

As a result of our above discussion, we hold that the case against the appellants has not been proved beyond a reasonable doubt and they are entitled to benefit of doubt. Their appeal consequently succeed and is allowed and the conviction and sentence imposed on them are set aside and they shall be set at liberty forthwith, if not required in any other case. Appeal allowed

6 Arnesh Kumar

Vs. State of Bihar and another6

Facts The petitioner apprehends his arrest in a case under Section 498-A of the Indian Penal Code, 1860 (hereinafter called as IPC) and S. 4 of the Dowry Prohibition Act, 1961. The maximum sentence provided under Section 498-A IPC is imprisonment for a term which may extend to three years and fine whereas the maximum sentence provided under S. 4 of the Dowry Prohibition Act is two years and with fine. Petitioner happens to be the husband of respondent no.2 Sweta Kiran. The marriage between them was solemnized on 1st July, 2007. His attempt to secure anticipatory bail has failed and hence he has knocked the door of this Court by way of this Special Leave Petition. Leave granted. In sum and substance, allegation levelled by the wife against the appellant is that demand of Rupees eight lacs, a maruti car, an airconditioner, television set etc. was made by her mother-in-law and father-in-law and when this fact was brought to the appellant’s notice, he supported his mother and threatened to marry another woman. It has been alleged that she was driven out of the matrimonial home due to nonfulfilment of the demand of dowry. Denying these allegations, the appellant preferred an application for anticipatory bail which was earlier rejected by the learned Sessions Judge and thereafter by the High Court. There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested

6. AIR 2014 SC 2756.


under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. “Crime in India 2012 Statistics” published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. The court held that Law Commissions, Police Commissions and this Court in a large number of judgments emphasized the need to maintain a balance between individual liberty and societal order while exercising the power of arrest. Police officers make arrest as they believe that they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. Aforesaid provision makes it clear that in all cases where the arrest of a person is not required under S. 41(1), Cr.PC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police office is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under S. 41 Cr.PC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid. We are of the opinion that if the provisions of Section 41, Cr.PC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons

Case Diary 215

contained in S. 41 Cr.PC for effecting arrest be discouraged and discontinued. Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction: We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or S. 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine. We direct that a copy of this judgment be forwarded to the Chief Secretaries as also the Director Generals of Police of all the State Governments and the Union Territories and the Registrar General of all the High Courts for onward transmission and ensuring its compliance. By order dated 31st of October, 2013, this Court had granted provisional bail to the appellant on certain conditions. We make this order absolute. In the result, we allow this appeal, making our aforesaid order dated 31st October, 2013 absolute; with the directions aforesaid. Appeal allowed

7 Ram Kumar and others

Vs. State of Madhya Pradesh7

Facts The appellants, who were convicted under Sections 302/149 and 148, IPC by the Trial Court and whose conviction was altered by the High Court to Section 302/34, IPC, have filed this appeal by way of special leave, having been dissatisfied with the judgment and order dated 4th December, 2008 of the High Court of Madhya Pradesh at Jabalpur passed in Criminal Appeal No. 1467 of 2000. The facts in brief, as discerned from the prosecution story, are that on 8th November, 1999 at about 5.00 p.m., some quarrel took place between the complainant Hiralal (PW-1) on one side and appellant No. 2 (Sukha Manidas) and two other accused on the other side. The complainant then rushed to the Police Station, Amdara along with his father (Mohanlal Sahu) for lodging a report against the accused who quarreled with him. While the complainant and his father (the deceased) were returning home from the police station

7. SC 435, 2014.


about 9.00 p.m., in the midway, appellant No. 3 (Suresh) appeared suddenly from behind and attacked Mohanlal Sahu (father of the complainant) with a stick (lathi) giving severe blows, resultantly Mohanlal Sahu fell down on the ground. Soon thereafter, the other accused, namely, Chintamani, armed with a sword, Sukha Manidas, carrying an iron rod and Suresh, Ramkumar and Ramesh with lathis in their hands appeared there and attacked Mohan Lal Sahu with their weapons/sticks giving continuous beatings. The complainant shocked thereby and out of fear, took shelter behind some bushes and immediately after the accused left the scene of occurrence, the complainant along with a villager Ramkishore Sahu (PW 2) noticed that Mohan Sahu (deceased) was soaked in the blood and he succumbed to the injuries caused by the accused. After informing about the incident to his brother and mother, the complainant went to the police station and lodged F.I.R. (Ext. P-1) against the accused persons. The police, after registering the case, took up the investigation immediately. The Investigating Officer (PW-14) arrived at the spot, conducted inquest, recorded statements of witnesses and arrested the accused persons. At the instance of the accused, the I.O. recovered weapons used in the crime, prepared seizure memo and sent the body of the deceased for postmortem. Charge Sheet was accordingly filed against all the five accused u/ss. 148 and 302/149, IPC and the matter was thereafter committed to the Court of Session. The appellants pleaded not guilty and claimed trial. The court held that In the present appeal, only three accused i.e. Ramkumar, Sukha Manidas and Suresh, have challenged the impugned order passed by the High Court. The prime contention of the learned counsel for the appellants before us is that the appellants were falsely implicated in the case. More specifically it was argued that the name of appellant No. 3-Suresh was not mentioned in the FIR, and he was intentionally implicated in the case by an afterthought. The evidence of prosecution witnesses is not consistent and there are several contradictions and infirmities in each other’s statement. The further argument advanced by the learned counsel is that the medical evidence does not corroborate the evidence of the complainant (eyewitness) to prove the charges levelled against the appellants. As the Doctor has not specified that the injuries on the body of the deceased were sufficient to cause the death, application of Section 302, IPC is not proper. Learned counsel, therefore, submitted that the orders of conviction and sentence passed by the Courts below are erroneous, illegal and have to be set aside.

Case Diary 217

We have heard learned counsel for both sides and also carefully gone through the material on record. Undisputedly, there was enmity between the accused and the complainant party and it appears that a criminal case was also pending between them. We find from the record that soon after registering complaint, the I.O. (PW 14) reached the place of occurrence and remained there till 1.00 p.m. on the next date i.e. 9th November, 1999 for investigating the case and he also recorded statements of witnesses. At that point of time itself, complainant (PW 1) mentioned the name and role played by the appellant No. 3 (Suresh) as recorded by the I.O. in the case diary. The same stand has been further affirmed by the complainant (PW 1) in his testimony that five persons attacked and caused injuries to his father and deposed that Suresh, Ramkumar and Sukh Manidas wielded lathis on his father. It was specifically mentioned that Appellant No. 3 (Suresh) hit at the kanpati of the deceased with his lathi. Another independent eyewitness, PW-10, (Tukodilal) also affirmed the presence of Appellant No. 3 at the scene of crime causing injuries to the victim by stick (lathi). He stated that he saw Ramkumar, Suresh and Ramesh beating Mohan Sahu (deceased) with lathis and another accused Chintamani was hitting the deceased with sword. Therefore, it can be said without any shadow of doubt that the Appellant No. 3 as well as other accused have participated actively in the crime and caused severe beatings to the deceased with their respective weapons/sticks. Another stand consistently taken by the appellants before the Courts below and also before us that there are various discrepancies and contradictions in the statements of prosecution witnesses also cannot be upheld in view of the corroborative statements of prosecution witnesses, especially ocular witness PW-1 and another independent eyewitness PW-10. 13. On going through the facts and circumstances of the case, we are of the view that there is ample evidence to prove that the accused have, with common intention, inflicted fatal injuries on the deceased which resulted in his death. The medical evidence completely corroborates the evidence of prosecution witnesses. We therefore find no infirmity in the impugned judgment passed by the High Court convicting the accused for the offences committed by them. 14. For all the aforesaid reasons, we hold that this appeal has no merit warranting our interference u/art. 136 of the Constitution, and the same hereby stands dismissed. Appeal dismissed


8 Bal Manohar Jalan

Vs. Sunil Paswan and another8

Facts- Leave granted.This appeal is preferred against the impugned order dated 18.4.2011 passed by the High Court of Judicature at Patna in Criminal Appeal No. 830 of 2009 whereby the High Court allowed the Criminal Revision filed by the respondent No.1 herein. The facts necessary for the disposal of the present appeal are stated as follows: The father of the respondent No.1 herein filed a complaint on 24.5.2003 against five accused persons alleging therein that they had committed murder of son of the complainant by name Anil Paswan by administering poison. A case was registered in First Information Report No.96 of 2003 on the file of Chowk Police Station, Patna City, on 28.5.2003 against 5 accused persons for the alleged offences under Section 328/302/34 IPC. During investigation, the complainant filed a protest- cum-complaint petition on 7.6.2003 which was kept on record. The investigation officer submitted the final report in the case on 31.5.2008 against accused No.1 Sunita Devi alone under Section 328/302 IPC for the murder of Anil Paswan. The Addl. Chief Judicial Magistrate, Patna City, perused the charge-sheet and the casediary as well as the protest-cum-complaint petition dated 7.6.2003 and took cognizance for the offences under Section 328/302 IPC against accused No.1 Sunita Devi and discharged accused Nos. 2 to 5 in the First Information Report from the case and rejected the protest-cum-complaint petition filed by the complainant by his order dated 4.3.2009. Aggrieved by the rejection of the protest-cum-complaint petition Sunil Paswan, the son of complainant late Harinandan Paswan filed revision petition in Criminal Revision No.830 of 2009 on the file of the High Court of Judicature at Patna u/s. 397 and 401 of the Code of Criminal Procedure. The High Court after hearing the revision petitioner and the respondent State set aside the order dated 4.3.2009 passed by Addl. Chief Judicial Magistrate, Patna City and remanded the matter to the court below for proceeding in accordance with law treating the protest-cum-complaint petition as a complaint. Accused No.4 mentioned in the First Information Report Bal Manohar Jalan has challenged the said order of the High Court in this appeal. The court held that This Court issued notice in the matter on 1.8.2011 besides granting stay of the impugned order. Respondent No.1 herein namely,

8. SC 403, (2014).

Case Diary 219

the revision petitioner before the High Court, though served did not choose to appear either in person or through counsel before this Court and that necessitated us to appoint Mr. S.B. Upadhyay, Senior Advocate as Amicus Curiae for respondent No.1 to assist the Court, by order dated 7.4.2014 and both sides were heard on 2.5.2014. The main contention of the learned counsel for the appellant is that though S. 401(2) of the Criminal Procedure Code stipulated that no order in exercise of the power to revision shall be made by the High Court to the prejudice of the accused unless he had an opportunity of being heard either personally or by pleader in his own defence, the High Court in criminal revision did not issue notice to the appellant herein who is accused No.4 in the First Information Report and without providing an opportunity to him has exercised jurisdiction u/s. 401 by directing to proceed in accordance with law treating the protest petition as the complaint, to the prejudice of the appellant herein and hence the impugned order of the High Court is liable to be set aside. In support of his submission he relied on the decision of this Court in Manharibhai Muljibhai Kakadia and another Vs. Shaileshbhai Mohanbhai Patel and others [(2012) 10 SCC 517]. We also heard the learned amicus curiae on the submissions made by the learned counsel for the appellant. In the present case challenge is laid to order dated 4.3.2009 at the instance of the complainant in the revision petition before the High Court and by virtue of S. 401(2) of the Code, the accused mentioned in the First Information Report get the right of hearing before the revisional court although the impugned order therein was passed without their participation. The appellant who is an accused person cannot be deprived of hearing on the face of the express provision contained in S. 401(2) of the Code and on this ground, the impugned order of the High Court is liable to be set aside and the matter has to be remitted. Though other grounds such as charge-sheet having been filed and the cognizance has been taken against accused No.1, the protest petition cannot be treated as a complaint warranting an independent inquiry, have been raised in this appeal, we do not deem it necessary to consider the same since we are remitting the matter for fresh consideration and it is open to the appellant to raise them before the High Court. In the result the impugned order of the High Court dated 18.4.2011 is set aside and the matter is remitted and the High Court shall issue notice to all the concerned accused and thereafter hear and dispose of the criminal revision petition in accordance with law. This appeal is allowed accordingly. Appeal allowed


9 Sudarshan and another

Vs. State of Maharashtra9

Facts The two appellants herein are aggrieved by the judgment of the High Court pronounced on July 27, 2011, whereby their conviction u/s. 302 read with S. 34 of the Indian Penal Code, 1860 (for short, ‘IPC’), as recorded by the Magistrate, has been upheld and their sentence to undergo life imprisonment with fine is also confirmed thereby. The prosecution case, on the basis of which the appellants along with eleven other persons were charged for committing offences of different nature, is stated by the High Court in para 5 of the impugned judgment. There is no dispute that the prosecution version, as recorded therein, suffers from any inaccuracies. Therefore, in order to have a glimpse of the prosecution case, we would take the facts as narrated in para 5 of the impugned judgment: The complainant, appellants and other accused persons are residents of Chandrapur. Complainant - Manoj Bhaskar Ugade knew both the appellants. The incident had occurred on November 17, 2002. The complainant had bought new motorcycle and with a view to celebrate the occasion, he had arranged a party at Junona in Ballarshah Tehsil. Junona is a forest place and it appears that there is some Holiday Resort also. It is a picnic place which is normally crowded to some extent on holidays. The said party arranged by Manoj was attended by his friends, including the two deceased, Vinod Channewar and Chandu Prakash Dongre. In addition to the above deceased, the said party was attended by Golu Ramteke, Jivan Mahadole, Anil Tajne, Sahilesh Gujarkar, Dilip Pradhan, Shankar Thakre, Vinod Shende, Santosh Kashti and Bahadur Hajare. The food was to be prepared on the spot. Therefore, raw material was taken to the spot of party in a Maruti van. The complainant and his friends reached the spot at about 12.00 noon and they started preparing meals. Since meals were not ready, the deceased had gone little away from the place of party to buy Gutka. They returned to the spot at about 12.30 p.m. The meals were still not ready. They, therefore, started playing cards at some distance from the place where the complainant was preparing roties. While the complainant was busy in his work, suddenly 8 to 10 persons reached the spot. The deceased, Vinod and Chandu, started running after witnessing them. However, the said 8 to 10 persons followed the deceased. The two appellants before us were holding swords. It is alleged that

9. SC 381, 2014.

Case Diary 221

both of them started assaulting deceased Vinod with the swords in their hands, while rest of the persons followed Chandu. The court held that The matter was reported to City Police Station, Chandrapur. They had registered an offence vide Crime No. 00/02 u/s. 302 read with S. 34 of IPC and S. 4 read with S. 25 of the Arms Act against the appellants and others. Since the place of incident was not within the jurisdiction of City Police Station, intimation was given to Ballarshah Police Station regarding the incident. Upon receiving the intimation, Ballarshah Police Station registered FIR No. 220 of 2002 and investigation was taken up by P.I. Mr. Kshirsagar, who visited the spot. Two of the witnesses were called, who had indentified the bodies lying on the spot. Inquest was done on the spot. Both the bodies were referred to General Hospital, Chandrapur for post-mortem examination. Rest of the panchnama was drawn on the next day as it was dark. During the course of investigation, it was revealed that one motorcycle was used by the appellants, which belonged to one Amarpur. The said motorcycle was also seized. Other accused were arrested from time to time during the course of investigation. Weapons and clothes were also seized and after completion of investigation chargesheet was filed in the court of Magistrate. It appears that during the course of investigation, provisions of the Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as ‘MCOC Act’) were also applied and further investigation was carried out by the Deputy Superintendent of Police, Mr. Sardeshpande. However, since Inspector General of Police rejected the proposal for prosecuting the appellants and others in MCOC Act, the accused were tried by the ad-hoc Additional Sessions Judge at Chandrapur. We find sufficient merit in the aforesaid submissions of Mr. Sushil Kumar and are convinced about the unnatural behaviour of the complainant in approaching Advocate Rangari and lodging the FIR at Chandrapur and also convinced that FIR appears to be ante-timed. As discussed in detail hereinafter, according to us, these facts are sufficient to hold that the appellants may have been roped in falsely at a later point of time, which entitles them to be given the benefit of doubt. We now proceed to discuss these circumstances and our reasons hereinafter. We may have agreed with the High Court that not reporting to the Police and going straightaway to an Advocate could have been because of the reason that all these persons were very scared, had it been a standalone fact. However, when this fact is examined in conjunction with other circumstances, which we narrate hereinafter, we find that approaching an Advocate instead of going to the Police Station to report the matter, was not that innocent a step as the prosecution has made us to believe.


At this juncture, we would like to point out that there were a number of persons, almost 100. The Police did not make any effort to join independent persons in the investigation. The entry to Junona, which is a jungle area, is by tickets. However, no efforts were made to take the connecting evidence of this nature. We are, therefore, of the opinion that the appellants are entitled to the benefit of doubt and the case against them is not proved beyond reasonable doubt so as to uphold their conviction into a serious charge of murder u/s. 302 read with S. 34 of IPC. The appeal is, accordingly, allowed and the conviction of the appellants under the aforesaid provisions is set aside. The appellants, who are in custody, shall be released forthwith, if not required in any other case. Appeal allowed

10 Lalit Kumar Yadav @ Kurhi


Facts This appeal is directed against the impugned common judgment dated 11th August, 2006 passed by the High Court of Judicature at Allahabad, Lucknow Bench in Capital Sentence Reference No.1 of 2005 with Criminal Appeal No.252 of 2005 from Jail and Criminal Appeal No. 384 of 2005. By the impugned common judgment the High Court while dismissed the appeal preferred by the appellant, answered the reference affirming the death sentence imposed by the Trial Court for the offence committed u/s. 302 IPC for having committed murder of Km. ‘x’ (victim: original name not disclosed). The High Court also affirmed the conviction and sentence passed against the appellant u/s. 376 read with S. 511 of Indian Penal Code for having made an attempt to commit rape on Km. ‘x’ aged about 18 years and sentenced him to undergo five years rigorous imprisonment thereunder. Initially the appeal was heard by the Division Bench of the Allahabad High Court, Lucknow Bench and after conclusion of the arguments the Hon’ble Judges pronounced their judgments but had a divided opinion; one Hon’ble Judge affirmed the order of conviction and sentence recorded by the Trial Court and the other Hon’ble Judge reversed the whole judgment and the order of the Trial Court and out rightly acquitted the accused-appellant on both the counts. Therefore, the case was referred u/s. 392 Cr.PC to a third Judge who

10. SC 299, 2014.

Case Diary 223

after hearing the parties and on appreciation of evidence by the impugned judgment dated 11th August, 2006 dismissed the appeals preferred by the appellant and another on his behalf. The judgment rendered by the Trial Court has been upheld and the reference was answered confirming the penalty of death sentence. On 23.2.2004, Ram Chandra Chaurasiya (PW-1) and his wife Vidyawati residents of village Gogulpur, Police Station Satrikh, District Barabanki had gone to their agricultural field. When they returned to their house at 2.30 p.m., they were informed by their daughter Guddi that their another daughter Km.’x’ had gone to beckon them at 1.30 p.m., as on that day, Govind, the son of Ram Chandra Chaurasiya’s sala (brother-in-law) had come to their house, his two daughters thought it proper to inform their parents and it was in this background that Km. ‘x’ had gone to inform and summon her parents. All the family members had a long wait for Km.’x’ to return but when she did not come back up to 4.00p.m., Ram Chandra Chaurasiya (PW-1) and Vidyawati both being worried left in search of their daughter. When they were going through the agricultural fields, they were shocked to see their daughter Km.’x’ lying dead in pool of blood in the plot of one Vishwanath. Ram Chandra Chaurasiya (PW-1) lodged a written report (Ext. Ka.1) at Satrikh Police Station where upon a case was registered and the then Station House Officer Shri Ashok Kumar Yadav assumed the charge of investigation and immediately swung into action. The court held that The Investigating Officer prepared the site plan of the occurrence. He collected ordinary and bloodstained earth from there and packed them in separate boxes. The trampled wheat plants around the dead body revealed a tale of violence. Both the chappals of the deceased were also lying at a distance. After interrogating all the relevant witnesses, collecting the relevant reports including the post- mortem, the Investigating Officer accomplished the investigation and submitted a charge-sheet against the accused .The prosecution examined as many as ten witnesses in support of the prosecution story. Ram Chandra Chaurasiya (PW-1) is the father of the deceased. He proved his report and also testified that the accused- appellant had teased the deceased girl a few days before the occurrence and when Km.’x’ complained about the incident of teasing to her cousin Ashok Kumar, the latter had scolded the appellant. Unfortunately, Ashok Kumar died subsequent to the occurrence. He also proved that the police called a dog who after smelling the site of occurrence tracked down to the house of the accused and caught himpellant. Head Constable Ram Prakash Shailesh (PW-5) had prepared the chik report Ex.Ka.5 on the basis of Ram Chandra Chaurasiya’s written report (Ext.Ka.1).


He registered the case in the General CaseDiary at Sl.No.33 on 23rd February, 2004 and submitted its copy Ext.Ka.6. 13. Dr. Arun Chandra Dwivedi (PW-6) is the Doctor, who conducted the post mortem of the victim’s corpse and prepared the autopsy report (Ext.Ka.7). He proved the said report before the Trial Court and testified that the neck of the deceased was almost severed from the trunk with a namesake junction of the skin. He confirmed that it was possible for the neck of the victim being severed by the sickle having small teeth. In the present case the recovery of ‘Gamchha’ and ‘Baniyan’ at the instance of the accused from the underneath the Takhat (Cot) is an important factor that connects the accused with the crime. According to the report of the chemical examiner and serologist, blood was also found on the said ‘Gamchha’ and ‘Baniyan’ belonging to the accused. This leads to the conclusion that at the time of committing murder the accused was wearing the ‘Gamchha’ and ‘Baniyan’ and thereafter he concealed them underneath the Takhat. Therefore, the aforesaid contention raised on behalf of the appellant that the alleged recovery of clothes i.e. Gamchha and Baniyan do not satisfy the mandate of S. 27 of the Indian Evidence Act cannot be sustained. This Court in many cases such as Atbir v. Govt. of NCT of Delhi, (2010) 9 SCC 1, case confirmed the death sentence awarded by the trial Court as affirmed by the High Court for different reasons after applying the principles enunciated in the judgments referred to above. 40. In Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546, this Court noticed aggravating circumstances (crime test) - mitigating circumstances- (criminal test) and rarest of rare case - (R-R test) and observed: In the present case, the circumstantial evidence comes to only one conclusion that appellant attempted to commit rape and because of resistance he committed the murder of the deceased. The appellant was aged about 21 years at the time of offence. Initially when the matter for confirmation of death sentence was heard by the two learned Judges of the High Court there was a divided opinion, one Judge confirmed the death sentence while the other acquitted the appellant. It is the other Bench which affirmed the death sentence. It is not the case of the Prosecution that the appellant cannot be reformed. In fact the possibility of his reformation cannot be ruled out. There is no criminal antecedent of the appellant. While we apply the various principles to the facts of the present case, we are of the opinion that considering the age of the accused, the possibility of reforming him cannot be ruled out. He cannot be termed as social menace.

Case Diary 225

Further, the case does not fall under the “rarest of rare” category. We, therefore, are unable to uphold the death sentence. 48. For the reasons aforesaid we are commuting the death sentence of accused-Lalit Kumar Yadav alias Kuri to that of life imprisonment but affirm the rest part of the conviction and sentence. The appeal is partly allowed only with regard to the quantum of sentence. Appeal partly allowed

11 Anjani Kumar Chaudhary

v State of Bihar and another11

Facts Leave granted.Appellant, a practicing advocate in the Patna High Court, had gone to his village at Nehra, in the district of Darbhanga for celebrating Holi festival. On 15.3.2006 at about 10.00 PM while he was sitting in the house of one Ranjit Chaudhary along with Gautam Chaudhary and others, few persons by name Ramesh Sahni, Dinesh Sahni and others, came there and demanded Rs.1,000/- as Rangdari for meeting Holi expenses. Appellant gave Rs.200/- but wanted the money to be returned which was not to the likings of the persons who came there. Twenty minutes thereafter, 2nd Respondent (1st accused) Sunil Sahni along with about 12 other persons came with Lathi, iron 1 of 11 rod, Fursha, Talbar etc. and abused the appellant and dragged him out of the house and brutally assaulted him with the weapons and left the place after inflicting several injuries on the appellant. The appellant was later admitted to the hospital at Sakri and his statement was recorded and a criminal case No. 46 of 2006 was registered under Sections 147, 148, 504, 323, 384, 324, 307 and 341 IPC against seven named persons and 10-15 unknown persons, vide FIR dated 16.3.2006. The police started investigation and, after completing the investigation, the police submitted its final report u/s. 173 Cr.P.C and the accused persons were sent for trial. The trial Court took cognizance of the offences on 9.10.2007 and the case was committed to the Sessions Court. 1st accused then filed an application for quashing the charge-sheet vide Criminal Misc. No. 13987 of 2007 before the Patna High Court. Later, that application was withdrawn seeking liberty to agitate the grievances before the trial Court at the time of framing of charges, which was allowed by the High Court by its order dated 5.11.2007. 1st accused also filed an application under 11. AIR 2014 SC 2740.


Sections 227/228 Cr.PC on 15.1.2008 before the Additional Sessions Judge, Darbhanga stating that no offence u/ss. 307 or 386 IPC was made out and hence prayed for the discharge and that the case be returned to the Chief Judicial Magistrate after framing charge under rest of the provisions. The court held that Shri Santosh Kumar, learned counsel appearing for the appellant, submitted that the Courts below were not justified in holding that no offence under Sections 307/308 IPC was made out. Learned counsel pointed out that the Courts below have failed to appreciate the statement of the witnesses at the casediary, which would clearly indicate that the 1st accused along with other accused persons inflicted blows by sharp weapons and had thus acted with the intention and knowledge that the same would cause the death of the appellant. Learned counsel also pointed out that the Courts below have failed to appreciate that when about 10-15 persons attacked an unarmed person with sharp weapons, one has to presume that the intention was to cause death and the injuries sustained by the appellant would also indicate that his life was in danger. Learned counsel submitted that, in order to sustain a charge u/s. 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted and what the Court has to consider is whether the act, irrespective of the result, was done with the intention or knowledge that death would be caused. In support of his contention, learned counsel placed reliance on the judgment of this Court in State of Madhya Pradesh v. Mohan and Others (2013) 14 SCC 116. We can, at this stage, proceed only on the basis of the statement recorded in the FIR as well as on the statements of the witnesses recorded in the casediary to find out whether they satisfy the ingredients of S. 307 IPC. The scope of S. 307 IPC has elaborately been dealt with by this Court in Mohan’s case (supra), wherein this Court has taken the view that if anybody does any act with intention or knowledge that by his act he might cause death and hurt is caused, that is sufficient to attract S. 307 IPC. Further, this Court has also taken the view that, in order to attract S. 307 IPC, the injury need not be on the vital part of the body. In the instant case, as per the statements, the weapons used were Lathi, rod, Farsa, Talwar etc. and when we look at the nature of injuries, it is clear that the injuries were caused by using sharp cutting weapons and also with hard blunt substance. Injuries were inflicted on the right temporal region of scalp at the base of the right ear, right side of occipital region of scalp, left side of occipital region of scalp etc. Open declaration by the accused that a person would be killed, indicates his intention and, as held by this Court in Vasant Vithu Jadhav v. State of Maharashtra (2004) 9 SCC 31, the question as to whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case which has to

Case Diary 227

be attributed on evidence by the trial court. Above facts would indicate that the ingredients of S. 307 IPC are made out. We make it clear that this is only a prima facie view to decide as to whether the FIR and the statements of witnesses contain averments so as to charge-sheet the accused u/s. 307 IPC and ultimately it is for the trial court to decide whether the offence u/s. 307 IPC has been made during trial, which ought to be ultimately decided on the basis of evidence tendered before the criminal Court. In such circumstances of the case, we are inclined to allow the appeal and set aside the judgment of the Sessions Court, which was affirmed by the High Court. Ordered accordingly. Appeal allowed

12 Thimmareddy and others

Vs. State of Karnataka12

Facts Leave granted. With the consent of learned counsel for the parties, matter was heard finally. Instant is an appeal filed by three persons who were accused of committing offence punishable u/s. 397 read with Section 120-B IPC along with five others. After the trial of these accused persons, the Sessions Court had acquitted all the accused person holding that charge under the aforesaid provisions had not been proved against these accused persons beyond reasonable doubt. The State had questioned the validity of the judgment of the trial court by preferring the appeal u/s. 378(1) and (3) of the Code of Criminal Procedure. During the pendency of the appeal, one of the accused persons, namely P.Laxman (A-3) died. Appeal was heard qua remaining seven accused persons. The High Court vide its judgment dated 1st December 2010 has convicted five of the seven accused persons for the offence punishable u/s. 397 read with Section 120- B of the IPC and have imposed the sentence of rigorous imprisonment for a period of seven years. They have also been directed to pay compensation of Rs.50,000/- each for the aforesaid offences and in default of such payment, to undergo simple imprisonment for a period of one year. The persons who were convicted are accused No.1 to 5, 7 and 8. In respect of accused No.4 and 6, the judgment of the Sessions Judge is maintained holding that the charges against them are not proved and appeal in respect of the said two persons is dismissed. As mentioned above, out of the 12. SC 269, 2014.


five accused convicted, only three have approached this Court with present appeal, who are A-1, A-2 and A-5. The prosecution examined 24 witnesses and produced 78 documents which were exhibited. The prosecution also marked 37 material objects. The accused persons in their defence examined two witnesses and produced five documents As is clear from the provisions of IPC, charge whereupon was pressed, it was the case of the prosecution that eight accused persons had hatched a conspiracy to commit the dacoity and in furtherance of the said conspiracy they committed dacoity by intercepting KSRTC on 8.10.2004 at about 10.30 p.m. The trial court, accordingly, formulated following points which arose for consideration: The court held that Apart from relying upon the aforesaid eye witnesses who deposed against thee accused persons at the time of trial, the prosecution also stated that after the arrest of the accused persons Test Identification Parades (TIPs) had been conducted. In these TIPs, PW-2, PW-6 and PW-16 were called and participated who identified A-2, A-1 and A-3, as well as A-7 and A-8 respectively. The trial court after analyzing the testimony of the aforesaid witnesses refused to believe them. Pertinent observation which is made by the trial court in this behalf is that when the statements of these witnesses were recorded under Section 161, Cr,P.C., at the time of investigation by the police officer, none of these witnesses stated that they had seen the accused persons and were in a position to identify them if they were brought before them. The trial court referred to Karnataka Police Manual and observed that the investigation was not done in accordance with the procedure for identifications contained therein. His analysis in this behalf reads as under:- It is mandatory on the part of the I.O. to record in the casediary, the description in detail with the above said ingredients. As could be seen from the casediary available on record there are no materials placed by the prosecution to show that they had identification feature of the accused with them after the incident. Therefore, there is a lapse on the part of the investigating agency to collect the material information, which gives to the prosecution opportunities to identify the accused. But they have failed to establish the identity of the accused persons of this case. Therefore, as could be seen from the statements of eye witnesses who had suffered injuries in the hands of the Dacoits who had an opportunity of seeing the accused with very close range have not given any description of the identification feature of the accused. In so far as recovery on the basis of purported voluntary statement of the accused persons is concerned, the trial court found that while recording

Case Diary 229

alleged voluntary statement of the accused persons, procedure as laid down u/ss. 165 and 166 of the Code of Criminal Procedure was not followed. The accused from outside the State were arrested within the limits of some other police station without following the procedure u/s. 166 Cr.P.C. It is further pointed out that when the accused persons were brought in Manvi Police Station and their voluntary statements were allegedly recorded, the police committed major irregularities which were incurable. According to the prosecution the voluntary statements were recorded on 29.10.2004 in respect of Timmareddy, Venkateshagouda, T.Laxman, Anjaneyallu, P.Devanna by PW-23. PW-23 says that after the arrest of the above said accused persons he requested the Tahsildar Manvi to provide 2 official panchas at 4.00 A.M. In the meanwhile, he recorded the voluntary statements of A-1 to 5 as per Ex.p-66 to P-70. Thereafter, on the basis of the said voluntary statements and in the presence of 2 official panchas deputed by the Tahsildar Manvi, he proceeded to recover the cash from their houses under the panchanamas. If that was so, he has not at all explained as to whether their faces were uncovered at any point of time how and when he was able to see their faces. He did not explain in his statement recorded u/s. 161 Cr.P.C. as to why he did not state he would be in a position to identify two persons. In that statement, he is conspicuously silent about having seen two persons. There is another important aspect which cannot be lost sight of, namely as per PW-1 the faces of all the accused persons were covered with kerchief. It is not at all stated by any of the witnesses as to when these persons removed those kerchief and their faces became naked which could be seen by these witnesses. PW-1 was subsequently confronted with the statement under Section 161, Cr.P.C. to this effect that in the cross- examination he accepted that he made the statement. Therefore, it was for him to clarify as to under what circumstances he could see the faces of A-1 and A-5 on the same ground how their faces could be seen by other witnesses, remains a mystery which is not explained by the prosecution. In this backdrop, the flaws in the investigation pointed out by the trial court become crucial. Curiously, High Court has not even adverted to those flaws. We are, therefore, of the opinion that the judgment of the High Court holding the appellants guilty of the offence is unsustainable. The same is accordingly set aside. This appeal is allowed holding that charge against the appellants u/s. 397 IPC read with Section 120-B has not been proved beyond reasonable doubt. The appellants are entitled to be released forthwith and it is directed accordingly. Appeal allowed.

Chapter 10

CHARGE

1 State of Uttar Pradesh

Vs. Ram Sajivan and Others

Decided on: 4 December 20091

Facts Unfortunately, the centuries old Indian Caste System still takes its toll from time to time. This case unfolds the worst kind of atrocities committed by the so called upper- caste (Kshatriya or Thakur) against the so called lower-caste -Harijan caste in a civilized country. It is absolutely imperative to abolish the caste system as expeditiously as possible for the smooth functioning of Rule of Law and Democracy in our country. In the instant case, the accused persons belonging to Thakur caste literally butchered seven totally innocent persons belonging to the Harijan caste and to wipe out the entire evidence of their atrocities, after shooting they were thrown in the river Ganges where currents were very strong. Out of seven, even the bodies of five persons could not be recovered. This appeal emanates from the judgment and order dated 10.01.2001 delivered by the High Court of judicature at Allahabad in Criminal Appeal No. 1715 of 1982. By this impugned judgment, all the 18 accused who were convicted and sentenced to life imprisonment by the trial court have been subsequently acquitted by the High Court. The learned Additional Sessions Judge, Fatehpur, in an elaborate, exhaustive and well considered judgment, sentenced the 18 accused persons u/s. 302 read with s. 149 IPC for committing the murder of Jasodiya, Ganga, Tulsi, Deo Nath alias Madan, Din Dayal, Sukhlal and Shripal. Accused persons were further sentenced to undergo seven years rigorous imprisonment on each

1. AIR 2010 SC 1738.

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counts for committing the dacoities. The accused persons were also sentenced to undergo five years of rigorous imprisonment u/s. 364 IPC for abduction of Kallu, Jasodiya, Ganga, Tulsi, Deo Nath, Din Dayal, Sukhpal and Shripal. All the accused persons were also sentenced to undergo four years rigorous imprisonment u/s. 201 IPC for elimination of evidence of murder by throwing the dead bodies of the seven persons in the river Ganga. All the sentences awarded to the accused persons on all counts were directed to run concurrently. In appeal, the High Court acquitted all the eighteen accused. The appellant, State of U.P. has preferred this appeal against the impugned judgment of the High Court acquitting all the accused persons. The court held that Thereafter, Kallu, Jasodiya, Din Dayal, Sukhlal, Shripal, Tulsi, Ganga Ram, Deo Nath alias Madan were tied with rope and were taken to the bank of the river Ganges, pushed in the boats and brutally murdered and thereafter all of them were thrown in the river Ganges, at a point where there were strong currents. Out of seven, five dead bodies could not be retrieved. Kallu P.W.14 jumped into the stream of the river Ganges and saved his life. Jasodiya, wife of Kallu was recovered from the river Ganges in an injured and unconscious state and after she regained consciousness, she got a written report Ex. KA.1 scribed by the witness Shyam Lal P.W.4 and the report was lodged at the police station Hathgaon of the District, U.P.. The statement of Jasodiya recorded u/s. 161 Cr.P.C. was recorded by the Investigating Officer, the extract of which is Ex. KA.25. The dying declaration Ex. KA.6 of Jasodiya was recorded by Dr. C. M. Mittal, Medical Officer at midnight on 10.9.1979. She narrated that on the previous night i.e. 09.09.1979 at about 11 p.m. about 20-22 persons came to her house. They forced their entry inside the house by cutting open the door shutters of the house and looted the property. The accused persons caught hold of her and her husband Kallu, Tulsi, Madan, Ganga Ram, Din Dayal, Sukhlal and Shripal sons of Din Dayal were also tied by a rope. The accused had pretended to be the Police officials of the District Rai Bareilly who had come to arrest persons in connection with some dacoity which took place in Rai Bareilly. Two persons spotted Jasodiya when she reached near the bank of the river in village Jafrabad. They reached at the bank of the river, took her out and put her on a small cot and she was warmed by fire under a Mahuwa tree. Thereafter, she was taken for medical examination of her injuries at the Public Health Centre (for short, PHC) Hathgaon, where Dr. C. M. Mittal examined the injuries of Jasodiya. She was taken there by Chet Ram 149 C.P. and Rais Ahmad 454 C.P. of the Police Station Hathgaon who had identified Jasodiya before Dr. C. M. Mittal. The examination took place at 10.30 pm on


10.9.1979. Dr. Mittal assessed the age of Jasodiya around 50 years and he found the following injuries on the person of Jasodiya: The prosecution, apart from Kallu P.W.14, also examined the other 32 witnesses and a large number of documents to prove its case. We would not like to burden the judgment by naming all the prosecution witnesses. We will deal with their statements as and when it becomes imperative. The statements of the accused persons were recorded u/s. 313 of the Code of Criminal Procedure. The accused denied their participation and suggested that they have been falsely implicated because of enmity. The trial court found that the prosecution had succeeded in establishing the charge of abduction of Kallu, his wife Jasodiya, Ganga, Tulsi, Deo Nath, Din Dayal, Shripal and Sukhlal with the intention of committing their murder. The trial court observed that the prosecution has also succeeded in establishing beyond any shadow of reasonable doubt of the charge of dacoity punishable u/s. 395 IPC against the accused. The trial court further observed that the accused persons were further liable to be held guilty of the charge punishable u/s. 201 IPC for destroying the evidence of murder by throwing the dead bodies of the said victims in the river Ganges, except Jasodiya who at that time had not died but was seriously wounded and later on succumbed to her injuries. The trial court convicted 18 accused persons named by Kallu P.W.14 in his testimony and sentenced them to life imprisonment. On consideration of the totality of the facts and circumstances of the case, we partly allow the appeal filed by the State and the acquittal of six accused namely (1) Mathura Singh @ Vijay Bahadur Singh R/o Vill. Lohari, District Fatehpur, (2) Udai Bhan Singh @ Lallan Singh R/o Kasraon District. Fatehpur, (3) Dhirendra Singh R/o Mawaiya, District Fatehpur, (4) Munna son of Ram Lal R/o District Banda, (5) Ram Niwas Singh alias Challa Singh R/o Siyari, District Fatehpur, and (6) Vijay Karan Singh R/o Bhainsahi, District Fatehpur recorded by the High Court is set aside and their conviction as recorded by the trial court is restored. However, during the pendency of this appeal, Ram Niwas Singh alias Challa Singh died and consequently his appeal abates. 73. The bail bonds of the convicted accused are cancelled and they are directed to surrender forthwith. In case they do not surrender within a period of four weeks from today, the State of UP is directed to arrest and lodge them in the prison to suffer the life imprisonment. Other accused who were convicted by the trial court are given benefit of doubt. They were acquitted by the High Court in the impugned judgment. Their acquittal is maintained. The appeal is accordingly disposed of.

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2 Satish Narayan Sawant

Vs. State of Goa

Decided on: 14 September 20092

Facts The present appeal arises out of the judgment and order dated 01.07.2002 passed by the High Court of Bombay at Goa in Criminal Appeal No. 6 of 2000 convicting the accused-appellant u/s. 302 of the Indian Penal Code (for short the ‘the IPC’) and sentencing him to undergo life imprisonment for the offence by setting aside the order of acquittal passed by the trial court. Facts giving rise to the present appeal may be stated first so as to enable us to appreciate the arguments raised by the parties more effectively. On 19.04.1988 between 8.30 p.m. and 8.45 p.m., Satish Narayan Sawant, the appellant (Accused No. 1) along with two other accused persons and also with two delinquent children allegedly formed an unlawful assembly and that in furtherance of the said common object stabbed one Rauji Dulba Sawant, the deceased and also assaulted Baby Dulba Sawant (PW-1), Ashok Dulba Sawant (PW-2), Kunda Rauji Sawant (PW-8) and Laxmi Dulba Sawant (PW-18) who are the sister, brother, wife and mother respectively of the deceased. It is also the case of the prosecution that as a result of the aforesaid stab injuries given to the deceased, he expired on the same day i.e. on 19.04.1988. P.S. Joaquim Dias (PW-21) who was attached to the Ponda Police Station as P.S.I. received a phone call at about 10.45 p.m. from P.S.I. K.K. Desai of the Panaji Police Station that a person named Rauji Dulba Sawant had been brought in police jeep by police constable Jaisingrao Rane and that while he was being taken to the Goa Medical College, he expired. He was informed that the deceased had died as a result of stab injuries received and, therefore, he was to take necessary steps. On receipt of the aforesaid message, PW-21 along with ASI Tabit Mamlekar went to the scene of offence. They reached the scene of offence at about 11.30 p.m. but found the entire place plunged into darkness and with the help of torch light, PW-21 surveyed the scene of offence. The court held that-PW-1 also alleged that on 19.04.1988 the deceased Rauji returned from his duty at about 6.30 p.m. and thereafter went to purchase some articles. On his return, he went to take bath and after having bath, he went and switched off the light of the room. As soon as the deceased

2. SC 1122; (2009) 17 SCC 724.


switched off the light, the appellant came from the room and started abusing Rauji. There was a heated exchange of words between Rauji and the appellant switched on the light, which was again switched off by Rauji, the deceased. Thereupon, the appellant went and removed the fuse of the said light. Accused No. 3 had then lit a kerosene lamp and brought the same in the hall. There was already an oil lamp burning which was attached to the ceiling by a brass chain. Meanwhile, Accused No. 3 started abusing PW-1, PW-8, PW-18, and the deceased Rauji. Ms. A. Subhashini, learned counsel appearing for the respondent- State, however, strenuously submitted that none of the aforesaid submissions could be accepted by this Court as it is a foolproof case of conviction of the appellant u/s. 302 IPC. She submitted that the High Court rightly interfered with the order of acquittal passed by the trial court after critically examining the evidence on record. It was submitted by her that the trial court examined the evidence in the present case in a very summary and cryptic manner and thereby arrived at a wrong conclusion that the accused persons were required to be acquitted. She has drawn our attention to the findings recorded by the High Court while setting aside the order of acquittal observing that the evidence of eye-witnesses namely PWs. 1, 2, 8 and 18 is convincing and reliable but so far as the evidence of PW-4 is concerned, the High Court has made an observation that he is not a reliable witness. Counsel for the respondent has, therefore, taken us through the evidence of PWs. 1, 2, 8 and 18 and on the basis thereof submitted that their evidence clearly prove and establish the role of the appellant herein in stabbing the deceased with the knife which he had brought from the other room with the intention of killing the deceased and, therefore, it is a clear case of conviction u/s. 302 IPC. In the light of the aforesaid submissions of the counsel appearing for the parties we have given our in-depth consideration to the facts of the present case. Learned counsel appearing for the appellant was critical of the manner in which PW-21 initiated the investigation without recording any G.D. entry and without getting any FIR recorded. He submitted that since the investigation in the instant case was started by the police without recording an FIR, such an FIR is necessarily hit by the provisions of S. 162 of the Cr.P.C. He next submitted that no evidence having been led by the prosecution about the time when the FIR reached the Magistrate, therefore, there is also violation of the provisions of S. 157 of the Cr.P.C. The issue with regard to the initiation of the investigation without recording the FIR was succinctly addressed by this Court in the case of State of U.P. v. Bhagwant Kishore Joshi, (1964) 3 SCR 71, observed.

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The aforesaid eye-witnesses, although, are related witnesses, were natural witnesses for they were the inmates of the house where the incident had taken place. The said eye-witnesses are consistent about the principal act of the appellant in stabbing the deceased. The discrepancies which were sought to be pointed out are minor discrepancies without in any manner affecting the substratum of the prosecution case and therefore, minor discrepancies in the evidence of the eye-witnesses are immaterial. This Court has observed as follows in the case of Dinesh Kumar v. State of Rajasthan, (2008) There is, therefore, provocation and the incident happened at the spur of the moment. That being the factual position, we are of the considered view that the present case cannot be said to be a case u/s. 302 IPC but it is a case falling under S. 304 Part II IPC. It is trite law that S. 304 Part II comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death. Accordingly, we convict the appellant under Section 304, Part II of IPC and sentence him to undergo imprisonment for a period of 7 years. His bail bonds shall stand cancelled and the appellant shall surrender immediately to serve out the remaining period of sentence. If, however, the appellant does not surrender by himself, the State shall take necessary steps to rearrests him to undergo the remaining part of sentence. The appeal stands disposed of in terms of aforesaid order.

3 Maniben

Vs. State of Gujarat

Decided on: 7 August 20093

Facts The present appeal is filed against the judgment and order passed by the High Court of Gujarat holding that the case of the appellant herein is covered under Clause (4) of Section 300 of the Indian Penal Code (for short ‘the IPC’) and, consequent thereto convicting her under Section 302 of IPC for murder of her daughter-in-law -Santokben alias Muktaben and sentencing the appellant to imprisonment for life. However, by the said order, imposition of the fine of Rs. 3,000/- by the Sessions Court was set aside. Earlier the Sessions Court held the appellant guilty for the offence of Section 304, Part II of IPC and convicted and

3. AIR 2010 SC 1261.


sentenced her for 5 years imprisonment and fine of Rs. 3,000/- and in lieu to undergo further imprisonment of one year. In order to appreciate the rival contentions advanced by the parties and issues involved, it would be necessary to set out brief facts of the case which gave rise to the present criminal appeal. Deceased Santokben was married to Parshottambhai Patel of village Jamvadi, Taluka Gondal, District Rajkot. After the marriage she gave birth to three children, who were all girls. The appellant herein, who is the mother-in-law of Santokben, was dissatisfied with Santokben because she was not able to bear a boy. According to prosecution on 29.11.1984 at about 7.00 a.m. the deceased with her youngest daughter Minaxi had gone to fetch water and while she was returning with water pot on her head and carrying Minaxi with the other hand, the appellant came and threw a burning wick made of rags on the deceased and thereby set fire to the terylene clothes put on by the deceased. The deceased brought down her minor daughter whom she was carrying and managed to reach her house with the burn injuries. The court held that After reaching her house the deceased summoned her daughter Nita who had gone to attend her school. Nita in turn informed witness Babulal Liladhar and the deceased was taken to Gondal Government dispensary at about 9.35 a.m. At Gondal Government dispensary the deceased was examined by Dr. Hareshkumar N. Savaliya, who was a Medical Officer at the said dispensary and on finding that the deceased has sustained more than 60% burns, he advised the persons accompanying her to remove her to Rajkot Hospital. At about 11.00 a.m. on that day an information was conveyed by Mr. Ghanshyambhai, who was police constable on duty at Gondal hospital, to Umiyashanker Jivram, P.S.O. at Gondal Taluka Police Station about the deceased having been admitted in the hospital for treatment of her burn injuries. Mr. Umiyashanker had in turn asked Jamadar Sultan Siddi at about 11.00 a.m. to go to the dispensary and record the complaint. Accordingly, Jamadar Sultan Siddi went to the Gondal hospital and recorded the complaint of the deceased at about 12.45 p.m., which is the First Information Report. After reducing the complaint/FIR of the deceased into writing, he obtained the thumb impression of the deceased thereon (Exhibit 46). Meanwhile at about 11.20 a.m. witness D.P. Trivedi, who was on duty at that time as Deputy Mamlatdar sent a report to Executive Magistrate that the deceased was admitted to hospital with burn injuries and he should record her dying declaration. The High Court by its judgment and order dated 03.04.2001 held that the learned Additional Sessions Judge had misconstrued the provisions of Section 300 and Part-II of Section 304 of IPC and thereby arrived at a wrong finding that the case of the appellant was a case within the meaning of Part II Section

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304 of IPC. The High Court also held that the case of the accused is covered under Clause (4) of Section 300 of IPC and, therefore, passed an order of conviction of the appellant under Section 302 IPC for murder of her daughter-in-law and sentenced her to imprisonment for life. However, the fine of Rs. 3,000/- imposed by the Sessions Court was set aside. Hence, the appellant filed the present appeal. The post-mortem report of the deceased was placed on record during the trial and Dr. Tarlikaben, who conducted the post-mortem examination was also examined as a witness in the trial. The said documentary and oral evidence of the doctor, as adduced, that he also treated the patient and conducted the post-mortem examination made it crystal clear that the deceased remained under treatment in hospital for 8 days and died after 8 days of the incident in question. The deceased was admitted in the hospital with about 60% burn injuries and during the course of treatment developed septicemia, which was the main cause of death of the deceased. It is, therefore, established that during the aforesaid period of 8 days the injuries aggravated and worsened to the extent that it led to ripening of the injuries and the deceased died due to poisonous effect of the injuries. There is also evidence on record to prove and establish that the action of the appellant to throw the burning tonsil was preceded by a quarrel between the deceased and the appellant. From the aforesaid evidence on record it cannot be said that the appellant had the intention that such action on her part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause the death of the deceased. Therefore, in our considered opinion, the case cannot be said to be covered under clause (4) of Section 300 of IPC. We are, however, of the considered opinion that the case of the appellant is covered under Section 304 Part II of IPC. We find that the view taken by the trial court was a cogent and plausible view and, therefore, we hold that the conviction and sentence imposed by the trial court is justified. Considering the totality of the circumstances and the fact that the appellant is of 85 years of age and had undergone the sentence imposed by the trial court under the provisions of Section 304 Part II of IPC, we set aside the conviction and sentence of the appellant imposed by the High Court of Gujarat and restore the judgment and order passed by the trial court. Since the appellant has already undergone the sentence imposed by the trial court she shall not be re- arrested unless required in connection with any other case. Bail bonds shall stand discharged. This shall not be the precedent for other cases. The appeal is allowed to the aforesaid extent.


4 Rajiv Modi

Vs. Sanjay Jain and Others

Decided on: 14 July 20094

Facts This is an appeal for special leave arises from the judgment and order of the Patna High Court in Criminal Miscellaneous Case No. 17815 of 2002 dated 20.11.2007. We grant special leave and dispose of this appeal as hereunder. By the judgment and the order impugned, the High Court in exercise of its power u/s. 482 of the Code of Criminal Procedure has quashed the private complaint filed u/s. 200 Cr.P.C., on the ground that the Judicial Magistrate, Patna did not have territorial jurisdiction to take cognizance of the offence alleged under Sections 406, 420 and 120-B of the Indian Penal Code. The admitted facts are, that, on 1.4.1999 M/s. Dhriti Agro Farms Private Limited (DAFPL), a company owned by the appellant, had entered into an agreement with Rajasthan Breweries Limited (RBL), a company owned by respondent Nos. 1 and 2. The agreement provides for appointment of DAFPL as their C & F Agent for the State of Rajasthan. It also provides the payment that requires to be made by the appellant for supply of raw materials to the suppliers of the respondents on behalf of the respondents and the respondents would supply the finished goods to the appellant for sale in Rajasthan. It is the case of the appellant that he had visited his in-laws in Patna in the month of February, 1998 and there the respondents had met him and had projected a lucrative picture of their business and assured the appellant the high returns for his investments. The appellant had agreed to become the C & F Agent of the respondent’s company for State of Rajasthan. Subsequently, the respondents handed over the Letter of Appointment of the appellant at the residence of his in-laws at Patna. It is the case of the appellant, that, pursuant to the agreement it has made several payments for supply of raw materials to different suppliers of the respondent but the respondents have not made any payment of the same till date. It is its further grievance that appellant though had made repeated requests to the respondent to return the money paid, the respondents have not acceded to the request so made. The court held that In view of the inaction of the police authorities, the appellant was constrained to file a private complaint before the Chief Judicial

4. Indlaw SC 848, (2009).

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Magistrate, inter alia alleging commission of the offences by the respondents u/ss. 406 and 420 read with Section 120-B of the Indian Penal Code. After recording the statements of the appellant and his witnesses and being convinced that a prima facie case has been made out against the respondents, for the offences, under Sections 420, 406 and 120(b) of the Indian Penal Code, the learned Magistrate has taken cognizance of the complaint and has issued summons to the respondents. Aggrieved by the aforesaid order, the respondents had approached the High Court by filing a petition u/s. 482 of the Cr.P.C., inter alia, requesting the court to quash the proceedings pending before the Judicial Magistrate, Patna. After recording the statements of the appellant and his witnesses and being convinced that a prima facie case has been made out against the respondents, for the offences, under Sections 420, 406 and 120(b) of the Indian Penal Code, the learned Magistrate has taken cognizance of the complaint and has issued summons to the respondents. Aggrieved by the aforesaid order, the respondents had approached the High Court by filing a petition u/s. 482 of the Cr.P.C., inter alia, requesting the court to quash the proceedings pending before the Judicial Magistrate, Patna. The only question, which remains to be considered, is, whether the Judicial Magistrate, Patna had the jurisdiction to take cognizance of the complaint? It is argued that the appointment of the appellant’s company as C & F Agent of the respondent’s company was agreed upon in Patna and the Letter of Appointment was also delivered at the address of the in-laws house of the appellant in Patna and therefore, it can be said that part of cause of action prima facie appears to have arisen in Patna. Therefore, Judicial Magistrate, Patna was justified in taking cognizance complaint and issuing process to the respondents. In view of the above, in our considered opinion, the High Court has erred by going into merits of the case and deciding doubtful or complicated questions of law and fact while invoking its powers u/s. 482 of Cr.P.C. This is not the fit case where the High Court could have exercised its inherent powers u/s. 482 of the Code. In view of the above discussion, we allow this appeal and set aside the impugned order passed by the High Court. The trial court is directed to proceed with the complaint. We make it clear that the observations made by us in the course of our judgment is only for the purpose of disposal of criminal appeal and the same need not be taken as any expression on the merits of the case. Appeal allowed.


5 Ganesh Gogoi

Vs. State of Assam


Facts This appeal has been filed under Section 19(1) of the Terrorist And Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the ‘TADA(P’) Act) impugning the judgment dated 11.7.2007 passed by the learned Designated Court, Assam, Guwahati in Sessions Case No. 68 of 2001 whereby the appellant has been convicted by the learned Judge of the Designated Court under Section 3(2)(i) TADA(P) Act and was sentenced to undergo imprisonment for life and to pay a fine of Rs.2000/- in default further imprisonment for six months. On the benefit of doubt being extended, the other accused, namely, Premodhar Gogoi was acquitted. The material facts of the case as alleged by the prosecution are that on 2.9.1991 at about 7.30 a.m., Sub-Inspector B. Kalita, who was in-charge of Naohalia Out Police Post informed the Office-in-Charge of Bordubi Police Station over telephone that on the previous day i.e. on 1.9.1991 at about 7.30 p.m. one Dinanath Agarwalla Naohalia was taken away in a Maruti car by some unknown persons and this information was entered vide General Diary Entry No. 19 dated 2.9.1991. Thereafter, Prabhat Gogoi, Officer-in-Charge along with his staff reached the place of occurrence for investigation and subsequently an FIR was lodged by him. 5. On conclusion of the investigation, charge- sheet dated 25.9.2001 was filed under Sections 365/302/34 of the Indian Penal Code read with Sections 3(2)(i) and 3(5) of the TADA(P) Act against the appellant and Premodhar Gogoi. The court held that Thereafter, on 10.1.2003, the learned Designated Court, Assam framed charges against the appellant under Section 302 of the Indian Penal Code and Section 3(5) of the TADA(P) Act. In the Trial evidence was adduced and the appellant was examined under Section 313 of the Code of Criminal Procedure and ultimately by the impugned judgment dated 11.7.2007 the appellant was convicted by the learned Designated Court under Section 3(2)(i) of the TADA(P) Act and was sentenced as stated hereinabove.

5. AIR 2009 SC 2955.

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Mr. P.K. Ghosh, learned senior counsel appearing on behalf of the appellant while assailing the judgment under appeal advanced various submissions. His first submission is that there is no evidence which can connect the appellant with the alleged incident and, therefore, the judgment of the learned Judge of the Designated Court is wholly unsustainable in law. Learned Counsel further submitted that apart from the aforesaid infirmity the appellant has been convicted only under Section 3(2)(i) of TADA(P) Act whereas he has not been charged under that Section at all. Learned Counsel submitted that in view of the charge which has been framed, he could not have been convicted under Section 3(5) of the TADA(P) Act. He submitted that a charge under Section 3(2)(i) and a charge under Section 3(5) of the TADA(P) Act are different charges and one is not encompassed by the other. His further submission is that admittedly Section 3(5) of the TADA(P) Act has been inserted in the statute book in 1993 by Section 4 of Act 43 of 1993. It is clear from the aforesaid statement, investigation in the case had already commenced and once investigation commences the FIR is hit by Section 162 Cr.P.C. and no value can be attached to the same. It does not appear that any witness has deposed that the appellant is a member of ULFA. Therefore, it is a very unfair question. This Court has allegedly convicted the appellant under Section 3(2)(i) but the ingredients of the Section 3(2)(i) were not been put to him. Therefore, there has not been a fair examination under Section 313 of the Cr.P.C. at all. The provisions of Section 313 are for the benefit of the accused and are there to give the accused an opportunity to explain the “circumstances appearing in the evidence against him”. In Basavaraj R. Patil & others Vs. State of Karnataka & others - (2000) 8 SCC 740, this Court held that those provisions are not meant to nail the accused to his disadvantage but are meant for his benefit. These provisions are based on the salutary principles of natural justice and the maxim ‘audi alteram partem’ has been enshrined in them. Therefore, the examination under Section 313 has to be of utmost fairness. But that has not been done here. This is also a factor vitiating the trial. The provision of Section 3(1) has been construed by this Court in several cases and reference in this connection may be made to the decision of Hitendra Vishnu Thakur and others Vs. State of Maharashtra and others - (1994) 4 SCC 602, wherein learned judges explained the ambit of a terrorist act which has not been defined in detail under TADA(P) Act. Sub-section (h) of Section 2 of the Act defines ‘terrorist act’ to mean the same thing as assigned to it in sub-section (i) of Section 3.


In the instant case the Designated Court has failed in its duty both in the matter of application of mind to the materials on record at the stage of framing of charge and also at the time of convicting the appellant. 36. This Court is, therefore, of the clear opinion that in the facts of the case no charge against the accused under the said Act could be framed, consequently he cannot be convicted under the provisions of the said Act. In any way in the instant case as discussed above, there is no evidence to connect the appellant with the alleged incident. Therefore, the judgment and order of conviction is totally unsustainable in law and is set aside. The appeal succeeds and the appellant be set at liberty forthwith if he is not wanted in connection with any other case. Appeal allowed.

6 Musauddin Ahmed

Vs. The State of Assam


Facts This appeal has been preferred against the judgment and order of the Gauhati High Court dated 20.2.2004 passed in Criminal Appeal No.188/2003 by which appeal against the judgment and order of the Sessions Court Kamrup, Guwahati in Sessions Case No.87(K)/97 (GR. Case No.47/95) has been dismissed wherein the appellant was convicted u/s. 376 Indian Penal Code (in short “IPC”) and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.2,000/-, in default to undergo imprisonment for another six months. However, the High Court reduced the sentence to four years and fine to Rs.1000/-. The facts and circumstances giving rise to this case are that the appellant Mussauddin Ahmed alias Musa allegedly abducted a minor girl namely Mira Begum on 7.1.1995 took her to a hotel and committed rape on her. The victim PW.4 Mira Begum was working as a maid servant in the house of PW.2 Abdul Hai Laskar and his wife PW.3 Hasmat Ara Begum at Gandhibasti, under Paltanbazar Police Station, Guwahati. Appellant was a security guard in the house of one Imran Shah of that locality. The appellant and prosecutrix knew each other from before. The court held thatAccording to the prosecution, on 7.1.1995, PW.4 Mira Begum, without informing her employer PW.2 Abdul Hai Laskar and PW.3

6. SC 65, 2009 (9).

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Hasmat Ara Begum went to see the zoo with one Suleman who was known to her. While they were coming back from the zoo they met the appellant near Ulubari Chowk. On seeing them together the appellant got annoyed and he slapped Suleman and threatened that he would hand them over to police. Out of fear Suleman ran away. The appellant on the pretext of taking the prosecutrix PW.4 Mira Begum, to the police station took her to Sodhi Hotel situated at Paltanbazar. In the hotel he hired a room in fictitious names and kept her in the room for the whole night and committed rape on her three times. On the next morning he sent her in a rickshaw. PW.4 Mira Begum came to the house of a person near Hazi Musafir Khana and telephonically informed her employers about the incident. PW.2 Abdul Hai Laskar brought her to his house and she narrated the whole incident before him. The written FIR relating to the incident was lodged by PW.2 Abdul Hai Laskar in the morning of 8.1.1995. Police registered the FIR and investigation was conducted by PW.7 Kanak Ch. Das, Sub-Inspector of Police. During investigation he got prosecutrix medically examined in the G.M.C.H. by PW.1 Dr. Pratap Ch. Sarma. The statement of the prosecutrix was recorded by PW.5 Parthiv Jyoti Saikia Judicial Magistrate Ist Class, Guwahati u/s. 164 Criminal Procedure Code (in short “Cr.P.C.”). After completion of the investigation, PW.7 Kanak Ch. Das submitted charge sheet against the accused under Section 366/342/376 IPC. 6. On committal of the case to the court of Sessions, charges under Sections 366/376 IPC were framed against the appellant. The appellant pleaded not guilty to the charge and hence trial commenced. During the trial the prosecution examined seven witnesses including the Investigating Officer. The Trial court found appellant guilty of the offence punishable u/s. 376 IPC and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.2,000/- in default to undergo imprisonment for another six months. It is the duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such a material evidence is withheld, the Court may draw adverse inference u/s. 114 illustration (g) of the Evidence Act notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence (vide Gopal Krishnaji Ketkar v. Mohamed Haji Latif & Ors., AIR 1968 SC 1413). Learned Standing counsel for the State, Mr. Jr. Luwang, could not satisfy the court as to why in absence of any allegation of threat or coercion, the prosecutrix could not have raised the alarm or informed any person on the road. Nor he could explain as to why the independent witness or an employee


of the hotel was not examined and why parents of the prosecutrix were not examined to find out her age. The prosecutrix appears to be a lady used to sexual intercourse and a dissolute lady. She had no objection in mixing up and having free movement with any of her known person, for enjoyment. Thus, she appeared to be a woman of easy virtues. In this view of the above, we are of the considered opinion that the prosecution failed to prove its case against the appellant beyond reasonable doubt. The appeal is allowed. The impugned judgment of the High Court and the trial court are set aside. Appellant is acquitted of the charge u/s. 376 IPC. The appellant is on bail. His bail bonds are discharged. Appeal allowed.

7 Ahmed Hussein Vali Mohammed Saiyed and Another

Vs. State of Gujarat


Facts The brief facts leading to the filing of the present appeals are as follows: According to the prosecution, on 03.8.1992, the accused formed an unlawful assembly and conspired together along with the absconding accused Sharifkhan, Resulkhan, Aminkhan Mojkhan and Imtiyaz and launched an attack on the deceased Hansraj Shivgopal Trivedi and other persons who were with him. In pursuance of the same, nine persons were killed and three persons were injured by indiscriminate firing resorted to by the appellants/accused with revolvers and automatic guns. Accused Nos. 1,2,3,4 and 20 went to Radhika Gymkhana near Gauri Cinema, Odhav on 03.08.1992 in a Maruti Fronti Car. Accused No. 1, Liyakathussein and absconding accused Sharifkhan fired on Hansraj and other seven persons resulting in their death. Both of them also resorted to indiscriminate firing on the witnesses Vrujlal and Mohan Meghnath which caused serious injuries to them. Accused No. 25 - Abdul Latif Abdul Wahab Shaikh, who was the gang leader, was accompanied by Accused Nos.26 - Sabbirhussein Husseinmiya Shaikh, and 27 - Tajammulhasan Alihasan Ansari, with a view to get rid of Hansraj. The complaint was given by Laxmansinh Madansinh Bhadoria on 3.8.1992 in the Odhav Police Station bearing 1-CR No. 254 of 1992. On the strength of the

7. AIR 2010 SC (Supp) 846.

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complaint, various offences were registered against the accused persons. The accused persons were arrested by the police and after submission of charge- sheet, necessary charges were framed by the Trial Court. On 21.12.1992, after conducting the trial in which 62 witnesses were examined by the prosecution and 139 documents were exhibited including the confessional statements of various accused, the Designated Judge convicted the accused under various sections of the I.P.C., Arms Act and TADA Act. In addition to the sentence, the Designated Judge also directed the accused persons to pay fine separately. All the sentences were ordered to run concurrently. Aggrieved by the conviction and sentence imposed by the Designated Judge, Ahmedabad, the appellants filed the above appeals before this Court. The court held that In the light of the above contentions and the materials placed before the Designed Court and statutory provisions, let us consider whether the prosecution has established its charges leveled against the accused and the Designated Court is right in convicting the appellants and justified in awarding appropriate sentence. In support of the same, the prosecution examined 62 witnesses. Out of 62 witnesses, some turned hostile and not supported the prosecution case. As per the charge-sheet in respect of TADA Case No. 8 of 1993 and TADA Case No. 144 of 1993, 24 persons were shown as accused. Out of the aforesaid accused, accused Nos. 1, 2, 3, 4 and 20 were charged under S. 5 of the TADA Act as well as u/s. 25(1)(c) and S. 27 of the Arms Act. They were also charged under Section 120-B of the IPC and all the accused were charged under Section 120-B read with Section 302/149 IPC. As accused were members of unlawful assembly, the charge u/s. 148 of IPC was also framed against them. In TADA Case Nos. 2 and 4 of 1996, the charge was framed against A-25 to A-28. Accused Nos. 25, 26 and 27 were charged under S. 5 of the TADA Act as well as u/s. 25(1)(c) and S. 27 of the Arms Act and also under Section 120-B of the IPC. They were also charged for the offences under Section 120-B read with S. 302 and u/s. 149 read with S. 302 of the IPC while accused No. 28 was charged u/s. 302 read with Section 120-B of the IPC and S. 5 of the TADA Act and Ss. 23(1)(c) and 27 of the Arms Act. They were also charged with S. 148 of the IPC. In TADA Case No. 38 of 1996, the charge was framed against the accused Aminkhan Alamkhan Mojkhan Pathan u/s. 120 read with S. 302 and S. 149 read with S. 302 and also under Section 120-B read with S. 302 and 149 of the IPC and S. 5 of the TADA Act and Ss. 25(1)(b) and 27 of the Arms Act. After framing the charges as mentioned above, joint trial was held and the evidence was recorded in TADA Case No. 8 of 1993. The statements of the appellants/accused recorded on various dates demonstrate the conspiracy to eliminate the business rivalry, and killing of


other gang leader, Hansraj Trivedi and others and how they executed the same on 03.08.1992 in the premises of Radhika Gymkhana Club. We have already pointed out that the TADA Act, being a special Act, which permits recording of confessional statement by a police officer not below the rank of Superintendent of Police and the same is also admissible in evidence. However, it is the duty of the prosecuting agency and the trial court/special court to see that strict compliance are adhered to while recording the confessional statement and relying on the same. Though, the argument was raised that there was no compliance of Rule 15(5) that the confessions recorded were not sent to the Chief Judicial Magistrate or the Magistrate having jurisdiction over the area immediately after recording the same, if we scrutinize the evidence of the recording officers who were all not below the rank of Superintendent of Police/Dy. Commissioner that after recording the confessional statements of the accused, particularly, in respect of A-27 and A-28 in accordance with the mandates of S. 15 and Rule 15, they were handed over to the Investigating Officers and in turn, to the concerned Court. As a matter of fact, PW-61, Khushpal Sing Nathulal Doshi, in his evidence asserted in categorical terms that the confessional statement of A-29, Aminkhan Mojkhan Pathan that was recorded by him kept in a sealed cover and sent to the Metropolitan Magistrate. He identified the confessional statement of the accused during the course of his deposition. If we consider other relevant acceptable materials which we have discussed in the earlier part of our judgment coupled with reliable dying declaration recorded by PW-6 and recovery of pistol as well as revolver and considering the factual aspects of this case, the objection raised by the appellants with regard to sub-rule (5) of Rule 15 is to be rejected. Evidence of Shiddharajsing Gulabsing Bhati - PW-53, Anilsing Kanaksing Jadeja, PW-54, Mohanlal Laxmichand Anal, PW-55, Natvarsinh Jagatsinh Champavat, PW-57 and Maharajsinh Rajput, PW-58 clearly prove the purchase of pistol and revolver by Jahangir Marazban Patel, A- 28 at Ahmedabad who in turn supplied the same to Latif and members of his gang, the recovery of all those weapons were duly identified by the person concerned. Finally, one more argument was advanced about the award of sentence to Liyakathussein @ Master Khudabax Shaikh (A-1). The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account

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of lapse of time in respect of such offences will be result-wise counterproductive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. In the light of the above discussion, we confirm the conviction and sentence imposed by the Designated Court. If any of the appellants/accused are on bail, steps shall be taken by the Court concerned to serve the remaining period of sentence. All the appeals are, accordingly, dismissed. Appeals dismissed.

8 Nafe Vs.

State of Haryana Decided on: 23 April 20098

Facts Challenge in this appeal is to the judgment of a Division of the Punjab and Haryana High Court dismissing the appeal filed by the appellant. Three accused persons faced trial for alleged commission of offences punishable under Section 302, 323 and 324 read with Section 34 of the Indian Penal Code, 1860 (in short “IPC”) for allegedly intentionally causing the death of Bhanwar Singh (hereinafter referred to as “the deceased”) in furtherance of their common intention and causing injuries to Mukesh (PW.8) and his brother Vinod. The trial court found the accused persons guilty and convicted them for the offences punishable under Sections 302, 323 and 324 read with Section 34 IPC. The appeal was filed by all the three convicted accused persons. Criminal Revision No.474/2005 was filed by the complainant. On 30.5.2002, Kanwar Singh (PW.4) complainant along with his brother, namely, deceased Bhanwar Singh was working in the fields known by the name of Yamuna belt. Ram Phal son of Sugna, resident of Goela Khurd, was also ploughing his fields. Besides, the sons of the complainant, namely, Vinod and Mukesh, were also working in the field. At about 12 noon, appellant Nafe Singh armed with a Ballam, Dheeraj armed with a Gandasi and Angrej Singh armed with a lathi, came to their fields and raised a lalkara that Bhanwar Singh be taught a lesson for ploughing the fields, whereafter Nafe Singh gave a Ballam blow to Bhanwar Singh on the right side of his chest on its lateral

8. AIR 2009 SC 2825.


side lower part, while Deeraj gave a Gandasi blow on his left knee and Angrej gave a lathi blow to him. Upon this, Bhanwar Singh cried “Mar Diya Mar Diya” and on hearing his noise, Vinod and Mukesh went to rescue their uncle Bhanwar Singh; but they were also inflicted injuries by the above three accused with their respective weapons. When Kanwar Singh complainant along with Ram Phal intervened, the accused along with their respective weapons fled away from the spot. Accused Nafe Singh while leaving told them that his brothers Sahab Singh and Iqbal Singh has lot of money and can manage the affairs. Kanwar Singh, complainant along with Ram Phal went to the spot and found his brother Bhanwar Singh lying dead. Thereafter, Hari Singh son of Phula Singh and his wife Kiran Sarpanch who were coming from the fields along with Jhota Buggi took the injured to village and subsequently, to Civil Hospital, Panipat. Complainant Kanwar Singh made statement exhibits PB before ASI Randhir Singh in regard to the occurrence which led to registration of formal FIR exhibit PB/1 after making an endorsement Ex.PB/2. After commencement of investigation, both the injured, Mukesh and Vinod, were got medico-legally examined and their medical reports exhibits PE and PF were obtained. The police then moved an application Ex. PG for recording their statements and vide endorsement Ex. PG/1 the injured were declared fit to make statement. The court held that On completion of investigation, the accused-appellants were chargesheeted under Sections 302/324/323 read with Section 34 IPC. As the accused pleaded innocence, trial was held. In order to substantiate the accusations, 15 witnesses were examined. The accused persons in their statement recorded under Section 313 of the Code of Criminal Procedure, 1973 (in short “the Code”) took the plea of innocence and false implication as well as the plea of self-defence. The trial court placed reliance on the evidence of the witnesses and directed conviction. It did not find any substance in the plea the Learned counsel for the appellant submitted that in a case of free fight which has been established by the evidence on record, Section 302 will have no application. At this being a case of free fight, Section 302 will have no application. Questioning the correctness of the judgment of their conviction, three convicted accused preferred appeal before the High Court which was numbered as Appeal No. 87DB of 2005. By the impugned judgment, the High Court altered the conviction of the two accused persons to Section 324 and 323 IPC and considering the period of sentence already served, they were directed to be set at liberty unless required in any other case. The appeal of the present appellant was dismissed.

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Learned counsel for the appellant submitted that in a case of free fight which has been established by the evidence on record, Section 302 will have no application. Learned counsel for the respondent, on the other hand, supported the judgment of the High Court. It is to be noted that in some cases conviction is made in terms of Section 304 Part-I IPC and in some cases conviction is made in terms of Section 304 Part-II IPC. Considering the facts of this case, according to us, the appropriate conviction will be under Section 304 Part-II IPC instead of Section 302 IPC. Ends of justice would be met if the conviction is altered from Section 302 IPC to Section 304 Part II IPC and the custodial sentence is reduced to 7 years R.I. We order accordingly. The appeal is allowed to the aforesaid extent. Appeal allowed

9 Jagan Shravan Patil And Anr


Decided on: 3 March 20099

Facts- Challenge in this appeal is to the judgment of a Division Bench of the Bombay High Court at Aurangabad Bench. Originally the Special Leave Petition was filed by A-4, A-5 and A-6. So far as petition in respect of appellant No.3-Suresh is concerned the same was dismissed by order dated 7.4.2008 and notice was issued only in respect of other two petitioners. The present appellants alongwith co-accused persons were tried and convicted by learned II Ad-hoc Additional Sessions Judge, Jalgaon, for the offences punishable under sections 143, 144, 148, 323 and 302 read with Section 149 of the Indian Penal Code,1860 (in short ‘IPC’) by order dated 12.10.2004. The accused were sentenced to suffer on 13.7.2003 members of the family of deceased got up at 5.30 a.m. as usual. At about 6.30, PW 3 finished his bath and the deceased was brushing his teeth on the oath (raised platform) outside his house. At that time, all the accused came to the house of the deceased and stated abusing him because PW 7 had lodged report against A-5 and members of his family. A-6 was armed with axe, A-4 was armed with handle of axe and A-5 was armed with handle of hoe. The accused entered the house and stated 9. JT 2009 (3) SC 284.


kicking and fisting the deceased. A-1 was inciting them to eliminate the deceased, assuring them that he would take the responsibility for the consequences. During the assault, A-6 dealt an axe blow on the head of the deceased. The court held that As a result, the deceased sustained bleeding injury and fell down. When PW 3 and 10 tried to intervene A-5 dealt blow on the head of PW3 and A-4 dealt blow on the head of PW 10 causing bleeding injuries. Accused no.2 was pelting stones at the victims. A-3 kicked and fisted PW 8 and her mother. He was pushing them backwards and was preventing them from intervening in the quarrel. On the arrival of the neighbours, the accused ran away. PW 10 then brought a Jeep of one Razakseth. The deceased was then taken to the Hospital of Dr. Deore (PW.9) at Chalisgaon for the treatment of compound fracture over frontal region. The Doctor informed Chalisgaon Police Station that a patient has been admitted with the history of assault. However, the Doctor on duty certified in writing that the deceased is unconscious. Therefore, statement of the deceased could not be recorded. The deceased succumbed to the injury about 10.45 a.m. The Police officer then took PW 3 and 10 to the Police Station and recorded complaint of PW 3. On the basis of this complaint (Exh. 48), offence came to be registered against the accused at zero number as the incident had taken place within the jurisdiction of Mehunbare Police Station. The Police officer of Chalisgaon Police Station held inquest on the dead body, prepared Panchnama of Inquest (Exh. 86) and sent the dead body for the post mortem. Accordingly, he issued post-mortem Report (Exh. 43). At the mortuary, clothes of the deceased were attached in presence of PW 1, under Seizure Memo (Exh.41). After completing the preliminaries, papers of the investigation conducted by Chalisgaon Police were sent to Mehunbare Police Station where offence came to be registered at Crime No.59/2003 for offence punishable under sections 143, 144, 323, 324, 302 read with Sections 149, 504 and 506 IPC and Section 135 of the Bombay Police Act. A.P.I. Yogiraj Shevgan (PW14) took over the investigation of the offence. On completion of the investigation the accused were chargesheeted. The Section does not say “the common intention of all”, nor does it say “and intention common to all”. Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the commission of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between

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acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899), Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused. 13. If the background facts are considered in the light of the principles set out above, the inevitable conclusion is that the appeal is sans merit, deserves dismissal which we direct. Appeal dismissed

10 Manish Jalan

Vs. State of Karnataka


Facts- The sole appellant stands convicted under Section 279 of the Indian Penal Code, 1860 (for short ‘IPC’) for the offence of driving on public way so rashly or negligently as to endanger human life and also under Section 304A, IPC for causing death by rash or negligent act, not amounting to culpable homicide. The Trial Court sentenced him to undergo simple imprisonment for one year and to pay fine of Rs.5000/- for both the offences and in default to undergo simple imprisonment for two months. On appeal to the High Court, vide its judgment dated 10th November, 2006 in Criminal Revision Petition No.159 of 2005, the High Court of Karnataka at Bangalore has maintained the conviction but has reduced the sentence to simple imprisonment for one year and a fine of Rs.5000/- for the offence under Section 279, IPC and simple imprisonment for six months and fine of Rs.5000/- for offence under Section 304A, IPC. This judgment of the High Court is under challenge in this appeal by special leave. Since learned senior counsel for the appellant has not seriously questioned the correctness of the conviction and has confined his arguments to the quantum of sentence, we deem it unnecessary to refer to the accusations against the appellant in greater detail. The court held that It would suffice to note that the appellant was chargesheeted for driving a tanker in a rash and negligent manner so as to endanger

10. AIR 2008 SC 3074.


human life and in the process dashing against a Kinetic Honda scooter, being driven by the deceased, who fell down and was run over by the left wheel of the tanker. The deceased succumbed to the injuries on way to the hospital. As noted above, on appraisal of the evidence, both the courts below have found the appellant guilty of the offence under Sections 279 and 304A, IPC. On the question of compounding of the offences, as prayed for in the affidavit, Section 320 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) dealing with “compounding of offences”, provides that only such offences as are included in the two tables, provided thereunder can be compounded. Sub- section (9) of Section 320 Cr.P.C. imposes a specific bar on compounding of other offences, not included in the two tables. Admittedly, offences punishable under Sections 279 and 304A, IPC do not figure in the said tables and are, therefore, not compoundable. Conscious of the legal position, learned counsel did not press for compounding of the offences. The next question for consideration is whether facts of the case, particularly the supervening circumstance brought on record by way of the affidavit of the mother of the victim, warrant interference in the quantum of sentence awarded to the appellant? The law which enables the Court to direct payment of compensation to the dependents of the victim is found in Section 357 Cr.P.C. (1973), corresponding to Section 7 545 of the 1898 Code. Learned counsel for the appellant, in fact, indicated that his client was willing to pay that much amount. We order accordingly. Accordingly, the conviction of the appellant under Sections 279 and 304A, IPC is maintained. However, the substantive sentence of imprisonment is reduced to the period already undergone. Imposition of fine is also affirmed. Besides, the appellant shall pay an amount of Rs.1, 00,000/- to the mother of the victim, namely, Smt. H. Sunanda Prabhu, by way of compensation within three months from today. If the appellant fails to pay the said amount within the stipulated time, the same shall be recovered as per the procedure prescribed under Section 431 Cr.P.C. and be paid to Smt. H. Sunanda Prabhu. The appeal is partly allowed and the order of the High Court is modified to the extent indicated above. Appeal partly allowed

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11 Har Prasad And Anr

Vs. Ranveer Singh And Anr

Decided on: 12 February 200811

Facts Challenge in this appeal is to the order passed by a learned Single Judge of the Allahabad High Court allowing the revision filed by respondent No.1. The revision was filed questioning the legality of the order dated 18.11.2000 passed by XIII Additional District and Sessions Judge, Aligarh in Criminal Revision No.272 of 2000 accepting the contention that the informant of the case got a false affidavit filed alongwith protest petition, and therefore no action could have been taken. 3. Stand taken before the learned Sessions Judge was that by the time the protest petition was filed the informant had died and false affidavit with a thumb impression was filed. Since the informant had already died, the learned Magistrate could not have been proceeded in the matter. This found acceptance by the learned Sessions Judge. The High Court by the impugned order had held that the order was not passed on the protest petition and was in fact passed on consideration of the report submitted in terms of S. 173 of the Code of Criminal Procedure, 1973. Learned counsel for the appellants submitted that the High Court fell in grave error by holding that the filing of false affidavit, if any, along with protest petition was immaterial. According to him, when the learned Magistrate acted upon the protest petition, the view that the affidavit along with the protest petition was not of any consequence, cannot be maintained. The court held that Learned counsel for the respondents on the other hand submitted that a bare reading of the order passed by learned Magistrate shows that the order did not have its foundation on the protest petition, but was relatable to the report submitted under S. 173 Cr.P.C. The only question that falls for consideration is whether the order was passed by learned Magistrate on protest petition or on the police report. Reference may be made to a judgment of this Court in Abhinandan Jha and Ors. v. Dinesh Mishra (AIR 1968 SC 117) where it was held as follows: We have to approach the question, arising for consideration in this case, in the light of the circumstances pointed out above. We have already referred to the

11. AIR 2008 SC 1265.


scheme of Chapter XIV, as well as the observations of this Court in Rishbud and Inder Singh’s Case (AIR 1955 SC 196) that the information of the opinion as to whether or not there is a case to place the accused on trial before a Magistrate, is left to the officer in-charge of the police station. There is no express power, so far as we can see, which gives jurisdiction to pass an order of the nature under attack; nor can any such powers be implied. There is certainly no obligation, on the Magistrate, to accept the report, if he does not agree with the opinion formed by the police. Under those circumstances, if he still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of the police, to take cognizance, under s. 190(1) (c) of the Code. That provision, in our opinion, is obviously intended to secure that offences may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute, or the police, either wantonly or through bona fide error, fail to submit a report, setting out the facts constituting the offence. As the factual position goes to show the order passed by learned Magistrate was in consideration of the police report and was not relatable to the protest petition. That being so, the view of the High Court does not suffer from any infirmity and no interference is called for. The appeal is dismissed. Appeal dismissed.

12 Ajay Singh


Decided on: 6 June 200712

Facts Challenge in this appeal is to the order passed by a Division Bench of the Bombay High Court, Nagpur Bench, dismissing the appeal filed by the appellant. Appellant faced trial for alleged commission of offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the ‘IPC’). He was convicted by learned Ist Additional Sessions Judge, Nagpur and sentence of life imprisonment and fine of Rs.200/- with default stipulation was imposed. Appeal filed against the judgment, as noted above, was dismissed. Prosecution version as unfolded during trial is as follows: The appellant-accused was tried on a charge of having committed murder of his wife Smt. Latabai (hereinafter referred to as ‘deceased’) by pouring kerosene on her person and setting her ablaze in the night of 29.4.2003 i.e. at

12. AIR 2007 SC 2188.

Charge 255

about 1.30 a.m. in the police quarters No. 203/3 at Raghuji Nagar, Sakkardara at Nagpur. Appellant-accused was residing in the said quarters along with his wife-the deceased and children. On the fateful night when the neighbouring residents, mostly police personnel were in their respective quarters and sleeping in the courtyards, they heard sound of the tape-recorder, which was being played by the appellant-accused, at about 1.30 a.m. in the night which awakened them. They heard the appellant-accused and his wife quarrelling and saw the appellant-accused dragging the deceased inside the house by holding her hands and after a short while they noticed the appellant-accused coming out of his quarters and shouting “Kaka Lata Mere Hatho se Mar Gai” and fled away. The court held thatThereafter, the neighbours entered the quarters of the appellant-accused and saw that Lata had caught fire. They tried to extinguish the fire, but, as she had sustained excessive burns before she could be removed to hospital, she died on the spot. Due to this incident, all the people in the neighbourhood had gathered at the place of’ the incident and report (Exh. 80) in the matter came to be lodged by Police constable Krishna Sadashiv Lute (P.W. 1) at Police Station Sakkardara. The said report was taken down in the proforma prescribed under Section 154 of the Code of Criminal Procedure, 1973 (in short the Code) which is Exb. 19, by P.S.I. Kale (P.W. 11). P.S.I. Kale registered offence under Section 302 of IPC vide Crime No. 192/93 of Sakkardara Police Station. In the course of investigation, the inquest Panchanama (Exb. 22) of the dead body of’ Latabai was prepared and dead body was sent to Department of Forensic Medicines, Medical College, Nagpur for conducting post mortem. The Medical Officer conducted the post mortem and gave the report (Exb. 31), which was admitted by the appel1ant-accused and, therefore, the prosecution did not examine any Medical Officer. The police recorded statement of’ witnesses in addition to completing the formalities of forwarding the articles, seized during the investigation, to the Chemical Analyser. After investigation was completed, charge- sheet came to be filed against the appellant-accused. His case was committed to the court of Sessions for trial. As accused pleaded innocence, he was put to trial. The purpose of Section 313 of the Code is set out in its opening words- ‘for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him.’ In Hate Singh, Bhagat Singh v. State of Madhya Pradesh (AIR 1953 SC 468) it has been laid down by Bose, J that the statements of accused persons recorded under Section 313 of the Code ‘are among the most important matters to be considered at the trial’. It was pointed out that the statements of the accused recorded by the committing magistrate and the Sessions Judge are intended in India to take the place of what in England and in


America he would be free to state in his own way in the witness box and that they have to be received in evidence and treated as evidence and be duly considered at the trial. This position remains unaltered even after the insertion of Section 315 in the Code and any statement under Section 313 has to be considered in the same way as if Section 315 is not there. 15. The object of examination under this Section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus. Above being the position, the inevitable conclusion is that the prosecution has failed to establish the accusations. The conviction is set aside. The appeal is allowed. The appellant be set at liberty forthwith if not required in any other case. Appeal allowed use death in the ordinary course of nature. Rajwant and Anr. v. State of Kerala, 1996 IndLaw SC 91is an apt illustration of this point. In Virsa Singh v. State of Punjab, 1958 IndLaw SC 82, Vivian Bose, J. speaking for the Court, explained the meaning and scope of clause (3). It was observed that the prosecution must prove the following facts before it can bring a case under Section 300, “thirdly”. First, it must establish quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. The position was illuminatingly highlighted by this Court in State of Andhra Pradesh v. Rayavarapu Punnayya and Anr.1976 IndLaw SC 192, Abdul Waheed Khan @ Waheed and Ors. v. State of Andhra Pradesh2002 IndLaw SC 1777, Augustine Saldanha v. State of Karnataka 2003 IndLaw SC 674 and in Thangiya v. State of T.N.2004 IndLaw SC 1079. When the factual background is tested on the principles set out above, the inevitable conclusion is that the conviction u/s. 302 IPC cannot be maintained and the conviction has to be in terms of S. 304 Part II IPC. Custodial sentence of 7 years would meet the ends of justice. The appeal is allowed to the aforesaid extent. Appeal partly allowed.

Chapter 11

DYING DECLARATION

CHAPTER 13-A Ch. 13-A] Dying Declarations (Inserted vide Correction Slip No. 12-Rules/XII F-8, dated 26th May, 1966). 1. Statements made by a person as to the cause of his death or as any of the circumstances of the transaction which resulted in his death are themselves relevant facts and admissible in evidence under Section 32(1) of the Indian Evidence Act in cases in which the cause of the person’s death comes into question. A statement commonly known “dying declaration” constitutes such an important evidence in criminals that their Lordships of the Supreme Court ruled in Khushal v. State of Bombay (AIR 1958 SC 22), which was followed in Singh v. The State (AIR 1962 SC 439) that it could form the sole basis of conviction. It is thus necessary that a Court trying the case should have before it a correct and faithful record of the statement made by the dead person. As far as possible the dying declaration should be recorded in the manner hereinafter prescribed, and in the event of death of the person making it, should be submitted at the enquiry or trial. COMMENTS The law does not make any distinction between a dying declaration in which one person is named and a dying declaration in which several persons are named as culprits. A dying declaration implicating one person may well be false while a dying declaration implicating several persons may be true. Just as when a number of persons are mentioned as culprits by a person claiming to be an eye-witness in his evidence in Court the Court has to take care in deciding whether he has lied or made a mistake about any of them, so also when a number of persons appear to have been mentioned as culprits in a dying declaration the Court has to scrutinise the evidence in respect of each of the accused. But it is wrong to think that a dying declaration becomes less credible if a number of persons are named as culprits. Harbans Singh and Another, vs. State of Punjab, AIR 1962 SC 439. It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; a dying declaration


stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. Khushal Rao, vs. State of Bombay, AIR 1958 SC 22, (In re, Guruswami Tevar, I.L.R. 1940 Mad. 158: A. I. R. 1940 Mad. 196 approved) In order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, but from the fact that the Court, in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities. Observations in A.I.R. 1953 S. C. 420, held to be in the nature of obiter. Khushal Rao, vs. State of Bombay, AIR 1958 SC 22. 2. Dying declarations to be recorded by Judicial Magistrates—(i) Where a person whose evidence is essential to the prosecution of a criminal charge or to the proper investigation of an alleged crime, is in danger of dying before the enquiry proceedings or the trial of the case commences, his statement, if possible, be got recorded by a Judicial Magistrate. When the police officer concerned with the investigation of the case or the medical officer attending upon such person apprehends that such person is in the danger of dying before the case is put in Court, he may apply to the Chief Judicial Magistrate, and, in his absence, to the seniormost Judicial Magistrate present at the headquarters, for recording the dying declaration. (ii)

Dying Declaration 259

On receiving such application, the Judicial Magistrate shall at once either himself proceed, or depute some other stipendiary Judicial Magistrate to record the dying declaration. COMMENTS It is mandatory for the investigating officer to apply to Chief Metropolitan Magistrate to depute some Magistrate for recording of dying declaration. Smt. Madhu Bala vs. State (Delhi Admn.), 1989 (17) DRJ 178 : 1990 CrLJ 790. 3. Fitness of the declarant to make the statement should be got examined—Before proceeding to record the dying declaration, the Judicial Magistrate shall satisfy himself that the declarant is in a fit condition to make a statement, and if the medical officer is present, or his attendance can be secured without loss of time, his certificate as to the fitness of the declarant to make a statement should be obtained. If, however, the circumstances do not permit waiting or the attendance of the Medical Officer, the Judicial Magistrate may in such cases proceed forthwith to record the dying declaration but he should note down why he considered it impracticable or inadvisable to wait for a doctor’s attendance. 4. The statement of the declarant should be in the form of a simple narrative—The statement, whether made on oath or otherwise, shall be taken down by the Judicial Magistrate in the form of a simple narrative. This, however, will not prevent the Judicial Magistrate from clearing up any ambiguity, or asking the declarant to disclose the cause of his apprehended death or the circumstances of the transaction in which he sustained the injuries. If any occasion arises for putting questions to the dying man, the Judicial Magistrate should record the question also the answers which he receives. The actual words of the declarant should be taken down and not merely their substance. As far as possible the statement should be recorded in the language of the declarant or the Court language. 5. Signatures or thumb impression of the declarant to be obtained to token of the correctness of the statement—At the conclusion of the statement, the Judicial Magistrate shall read out the same to the declarant and obtain his signature or thumb-impression in token of its correctness unless it is not possible to do so. The dying declaration shall be placed in a sealed cover and transmitted to the Judicial Magistrate having jurisdiction to deal with the case to which it relates. COMMENTS In case where the MLC report shows that the injuries were not such that the thumb impression of the deceased could not be obtained and yet the SDM and the investigating officer did not get the signatures or thumb impression, then such declaration is not to be acted upon. Smt. Madhu Bala vs. State (Delhi Admn.), 1989 (17) DRJ 178 : 1990 CrLJ 790. 6. Recording of Dying declarations at a place away from the District Headquarters—Where in an emergency a dying declaration has to be recorded at a place away from the District Headquarters the investigated officer or the medical officer attending upon the dying man shall apply the nearest Judicial Magistrate to record the dying declaration, and the Judicial Magistrate shall immediately proceed to the spot and take the statement of the dying man in the manner stated above. This,


however, would not prevent the medical officer or the police officer connected with the investigation of the case from recording the dying declaration if he is of the opinion that death is imminent and there is no time to call a Judicial Magistrate. In such cases the police to the medical officer concerned must note down why it was not considered expedient to apply to a Judicial Magistrate for recording the dying declaration or to wait for his arrival. 7. Recording of a Dying declaration by a Police Officer or Medical Officer—Where a dying declaration is recorded by a Police Officer or a Medical Officer, it shall, so far as possible, be got attested by one or more of the persons who happen to be present at the time. 8. Fitness of the Declarant to make a statement to be certified by the Judicial Magistrate or other officer concerned—The Judicial Magistrate or other officer recording a dying declaration shall at the conclusion of the dying declaration certify that the declarant was fit to make a statement and it contained a correct and faithful record of the statement made by him as well as of the questions, if any, that were put to him by the justice recording the statement. If the accused or his counsel happens to be present at the time the dying declaration is recorded, his presence and objection, if any, raised by him shall be noted by the Judicial Magistrate or the officer recording the dying declaration, but the accused of his counsel shall not be entitled to crossexamine the declarant. 9. Dying Declaration should be a free and spontaneous—It is the duty of the person recording a dying declaration to take every possible question to ensure the making of a free and spontaneous statement by the declarant without any prompting, suggestion or aid from any other justice. 10. Welfare of the injured persons—The Judicial Magistrate, medical officer and police officials must all realize that the welfare of the injured person should be their first consideration, and in no circumstances must be proper medical treatment be impeded or delayed simply to obtain the dying declaration of the injured person.”1

1 Vutukuru Lakshmaiah

Vs. State of Andhra Pradesh2

Facts The present appeals are directed against the judgment and order dated 22.03.2007 passed by the High Court of Andhra Pradesh in Criminal Appeal No. 517 of 2005, whereby it has confirmed the judgment of conviction and order of sentence passed by the learned Additional Sessions Judge, Nellore in Sessions Case No. 365 of 1998 whereunder he had found the appellants guilty 1. http://delhihighcourt.nic.in/writereaddata/upload/CourtRules/CourtRuleFile_P9S0NL6U.PDF. 2. 2015 Indlaw SC 293.


of the offence u/ss. 302 and 148 of the Indian Penal Code (IPC) and sentenced each of them to suffer rigorous imprisonment for life on the first score and imposed separate sentence u/s. 148 IPC with the default clause stipulating that all the sentences shall be concurrent. Be it stated, the High Court has acquitted three of the convicted persons. Filtering the unnecessary details, the prosecution case is that the deceased, Patrangi Ramanaiah, was a supporter of the Telugu Desam Party, while accused Vutukuru Lakshmaiah, A-1, was the Councilor for Ward No. 16 of Nellore Municipality and belonged to the Congress Party. One Patrangi Velongini Raja of Telugu Desam Party was allegedly murdered by accused, A-1, and his brother and in the said prosecution the deceased and PW-1 were witnesses. On 14.05.1996 about 9.30 p.m., Pamula Ramanaiah, PW-1, and the deceased were travelling on their scooter towards Akuthota Harijanawada, and when they reached a sweet meat shop, Meriga Yedukondalu, A-4, and Utukuru Seenaiah, A-6 (since deceased) attacked them as a result of which, PW1, who was driving the scooter lost control of the scooter and both of them fell down. As the prosecution story proceeds, Vutukuru Lakshmaiah, A-1, Rayapu Srinivasulu, A-2, Rayapu Sivaiah, A-3, Meriga Ramaiah, A-5, and Meriga Penchlaiah, A-7, stabbed the deceased multiple times with knives, while A-4 and A-6 beat him with iron rods. A-2 then tried to stab PW-1 but missed. Thereafter A-3 stabbed PW-1 with a knife on his left arm, but he managed to escape and hid in the PWD office situated nearby. The court held that We have heard Mr. Nagendra Rai, learned senior counsel for the appellants and Ms. June Chaudhary, learned senior counsel for the State. Criticizing the judgment of conviction, it is submitted by Mr. Nagendra Rai, learned senior counsel for the appellants that the evidence adduced by the prosecution witnesses should have been discarded inasmuch as their testimony is replete with contradictions and as the occurrence had taken place during the night about 9.30 p.m. and there was no electric supply and hence, it could not have been possible on the part of the witnesses to see the accused-appellants by lighting the earthen mud lamp with a match stick. Learned counsel would contend that they are chance witnesses and their evidence really do not inspire confidence and, in fact, when cautiously scrutinized, they deserve to be totally discarded. It is urged by him that the dying declaration, Ex. P-13, does not inspire confidence inasmuch as the allegations are omnibus in character and no specific overt acts have been attributed to any of these appellants. It is contended by him that when the High Court has found that A-4, A-8 and A-9 have been falsely implicated, it would have been appropriate


on the part of the High Court to hold that the present appellants also had been falsely implicated in the case. It is canvassed by him that the appellant no. 1 was attending the Water Committee meeting on the date of occurrence and the same had been established by bringing acceptable evidence on record by citing witnesses and also by filing documents Ex. D-3 to D-8 which are documents maintained by Nellore Municipality. It is his further submission that learned trial Judge as well as the High Court has not given any justifiable reason to disregard the evidence of DW-1 to DW-7. It is also urged by him that the appellants could not have been convicted in aid of S. 149 IPC as the charge framed against them was simplicitor S. 302 IPC; and even if S. 149 IPC can be resorted to, in the absence of specific charge, the Court is required to see the circumstances, what is the nature of offence committed. Alternatively, it is submitted by him that even if the assault on the deceased is accepted, regard being had to the absence of intention and the nature of injury suffered by the deceased and death having taken place after three days, they may be liable for conviction u/s. 304 Part II IPC and not under S. 302 IPC. To buttress the said submission, he has drawn inspiration from decisions in State of Orissa v. Dibakar Naik (2002) 5 SCC 323, Sunder Lal v. State of Rajasthan (2007) 10 SCC 371 and Marimuthu v. State of Tamil Nadu (2008) 3 SCC 205. The next limb of submission of the learned senior counsel for the appellants relates to acceptability and reliability of the dying declaration recorded vide Ex. P-13. The criticism is advanced on the foundation that it is absolutely vague. It is urged by him that the dying declaration being absolutely infirm, it cannot be placed reliance upon and once the dying declaration is discarded, a serious dent is created in the prosecution story. To appreciate the said submission, we have carefully scrutinized the contents of the dying declaration contained in Ex. P-13, which has been recorded by the Additional Judicial Magistrate, First Class, PW-18. In his testimony, he has categorically stated every aspect in detail and nothing has been elicited in the cross-examination. At the time of recording of the dying declaration, as the material would show, the declarant was absolutely in a conscious state and there is an endorsement in that regard by the treating doctor. The submission that the dying declaration is eminently vague is neither correct nor is it based on any material on record. On the scanning of the dying declaration, we find that he has named Vutukuru Laxmaiah, A-1, Rayapu Sreenivasalu, A-2, Rayapu Subbaiah, A-3, Meriga Ramanaiah, A-5, Amburi Raja, A-8, Rayapu Ravi, A-9, and Rapayu Siddaiah. Thus, in the absence of any kind of infirmity or inherent contradiction or inconsistency or any facet that would create a serious doubt on the dying declaration, we are not inclined to discard it


The last plank of submission of the learned senior counsel for the appellants is that the appellants had no intention to commit the murder of the deceased. It is also submitted by him that when death has occurred three days after the incident, it is demonstrable that there was no intention on the part of the accused-appellants to kill him. To appreciate the said submission, we have perused the injury report. We find that there are five stab injuries at different parts of the body i.e. near right axilla, below the right axilla, over right hypochoncriam at mid clavicular line, over the border of right scapula and over mid spinal region at the level of 4th and 5th lumbar vertebra. The evidence on record shows that the deceased was assaulted as he was a witness in Velongini Raja’s murder case wherein the accused-appellant, A-1, was an accused. There are cases where this Court has converted offence from 302 IPC to 304 Part I IPC, regard being had to the genesis of occurrence or the nature of injuries. It is because one of the relevant factors to gather the intention is the nature of injury inflicted on the deceased. In the instant case, considering the nature of injuries and the previous animosity, we are of the considered opinion that it is not a fit case where the offence under S. 302 IPC should be converted to S. 304 Part I IPC. Consequently, we do not perceive any merit in these appeals and accordingly, the same stand dismissed. Appeals dismissed

2 State of Maharashtra Etc.

Vs. Pravin Mahadeo Gadekar Etc.3

FactsThese appeals by Special Leave are directed against the judgment and order dated 7.12.2007 passed by the High Court of Judicature at Bombay, Bench at Nagpur in Crl. Appeal Nos. 255 of 2001 and 306 of 2004. Deceased Sadhana, daughter of PW 5 Narmadabai, was married to respondent Pradip four to five years prior to the date of incident. After marriage, Sadhana was residing with Pradip in the matrimonial home where the other inmates were Parwatabai mother-in-law and respondent Pravin, brother-in-law. After the marriage, Sadhana was subjected to cruelty by Pradip and other in laws and she was constrained to leave her matrimonial home. A report was lodged by Sadhana on the basis of which these three persons were prosecuted. However the dispute was settled and she started co-habiting with Pradip.

3. 2015 Indlaw SC 244.


It is the case of prosecution that in the morning of 6.11.1995, deceased Sadhana suffered burn injuries. Her husband Pradip also suffered burn injuries. Both were rushed to Distt. Hospital, Akola for treatment. One Shelke gave information to police on telephone. PW1 Suryakanta, friend of Sadhana and PW5 Narmadabai, mother of Sadhana visited her separately in the hospital and Sadhana is stated to have disclosed that her husband Pradip poured kerosene on her and kept pallu of her saree on the lighted cooking gas setting her ablaze. Pursuant to the aforesaid statement, FIR was registered under Sections 498A, 307, 354 read with 34 IPC in city Kotwalli Police Station, Akola against Pradip, Pravin and their mother Parvatabai. In a supplementary statement recorded on 7.11.1995 Sadhana clarified that her brother-in-law Pravin had come to rape her on Monday, that he had molested her but had not committed any rape on her and that upon her raising shouts he had gone away. The court held thatIn the night intervening 6.11.1995 and 7.11.1995 while Sadhana was undergoing treatment, arrangements were made to record her statement. PW8 Vijay Singh Pawar who was working as Naib Tehsildar, Akola was requested to record her statement. He therefore went to the Distt. Hospital, met PW7 Dr. Vijay Kalne, Medical Officer Distt. Hospital and asked vide Ext.95 whether Sadhana was in a position to make a statement. PW7 Dr. Vijay Kalne examined Sadhana and vide Ext. 92 certified that she was conscious to record Dying Declaration. After such certification PW 8 Vijay Singh Pawar proceeded to record the statement Ext.96 of Sadhana. In response to the question how the incident had occurred she stated inter alia that Pravin had attempted to commit rape on her few days back and when she narrated this to Pradip after he came back, Pradip poured kerosene on her and set her ablaze. At the end of the statement, mark of her right toe was appended vide Ext. 96 as her hands had sustained burn injuries. After conclusion of the statement, endorsement was made by PW7 Dr. Vijay Kalne at 3.25 am vide Ext.93 that the patient was conscious to record the dying declaration. We have perused the entire record including the dying declarations. In our view dying declaration Ext. 96 as recorded by the Executive Magistrate is the most crucial document. Said document itself records the appropriate satisfaction and certification by the medical professional namely PW7 Dr. Vijay Kalne before and after recording of the dying declaration. PW7 Dr. Vijay Kalne clearly stated in his deposition that he had examined Sadhana and found her pulse and Blood Pressure normal, that she was well oriented and that she was mentally fit. He further stated that he was all the time present while the statement recorded. In the circumstances the dying decalration Ext. 96 is absolutely reliable. On the point that Pradip had set Sadhana ablaze,


there is no inconsistency in any of the dying declarations and they in unison point the finger at him. Even with respect to the role of Pravin the declarations Exts. 96 and 98 are quite consistent. There may be some exaggeration on part of PW 1 Suryakanata and PW 5 Narmadabai, but the supplementary statement of Sadhana dated 7.11.1995 put the matter completely beyond any doubt. The dying declaration Ext.96, in our view is definitely trustworthy. It also stands corroborated on material aspects by other declaration Ext.98. If some exaggeration on part of PW1 Suryakanta and PW5 Narmadabai is eschewed, their oral testimonies also lend full support. Whether Sadhana was able to speak coherently is a matter which stands dealt with by PW7 Dr. Vijay Kalne, and we have no hesitation in placing reliance on dying declaration Ext.96. The High Court was in error in discarding said dying declaration. The view which weighed with the High Court was not even a possible view. We, therefore hold that the charges u/ss. 302 and 354 as against Pradip and Pravin respectively stand fully proved. We affirm the acquittal of Pradip with regard to charge under Section 498A of the IPC. In the circumstances we allow these appeals and set aside the judgment and order of acquittal recorded by the High Court. The respondent Pradip is convicted u/s. 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.1,000/-. Respondent Pravin is convicted u/s. 354 IPC and sentenced to suffer rigorous imprisonment for six months and to pay fine of Rs.500/-, in default whereof to suffer further rigorous imprisonment for one month. Both the respondents Pradip and Pravin be taken in custody forthwith to undergo the sentence awarded to them. Appeals allowed

3 Vijay Pal

Vs. State Govt. (NCT of Delhi)4

Facts In this appeal, the assail is to the judgment and order dated 31.8.2009 passed by the High Court of Delhi in Criminal Appeal No. 417 of 2001 whereby the Division Bench has dismissed the appeal while affirming the judgment and order dated 17.01.2001 of the learned Additional Sessions Judge, Delhi in Sessions Case No. 27 of 1998 whereunder the trial Court had

4. 2015 Indlaw SC 160.


convicted the appellant u/s. 302 of the Indian Penal Code (for short “the I.P.C.”) and sentenced him to suffer rigorous imprisonment for life. Filtering the unnecessary details the case of the prosecution is that the deceased, Savitri, had entered into wedlock with the appellant herein prior to almost eleven years of the date of occurrence i.e. 2.11.1997. The parental home of the deceased was situated at a distance of half a kilometer. On the fateful day i.e. 2.11.1997 about 11:00 p.m., Seema, PW- 3, daughter of the deceased, aged about ten years, came running to the house of her grandfather Shivcharan, PW-8, and informed him as well as Satish, brother of the deceased, PW-1, that her father was threatening to burn her mother. The information compelled PWs 1 and 8 to rush to the house of the deceased and, as the factual matrix would show, PW-1, being young in age, reached the house of his sister earlier than his father and found his sister was burning and she told him that it was the accused- appellant who had put her ablaze by pouring kerosene. The brother poured water on the deceased in order to extinguish the fire and thereafter took her to Deen Dayal Upadhyay Hospital where she could not be admitted due to lack of facility and thereafter they brought her to Safdarjung Hospital where she was admitted. Despite availing treatment, she breathed her last on 3.11.1997 about noon. It is necessary to mention here that after the deceased was taken by her father and brother to the hospital, two neighbours, namely, Shanker Lal and Surender, PW-2 and PW-4 respectively went to the Police Station at Mangol Puri and gave the information about the incident by DD-73 dated 2.11.1997 on the basis of which, the S.I. Vijender Singh, PW-21, went to the place of the occurrence where he met PW- 3, the daughter of the deceased, and came to learn that her parents had quarreled and her mother had suffered burn injuries and was taken to the hospital. The prosecution in order to substantiate the charges leveled against the accused person, examined as many as 21 witnesses and got number of documents exhibited. On the basis of the ocular and the documentary evidence, the learned trial Judge came to hold that the prosecution had established the charge levelled against the accused to the hilt and accordingly convicted him under Section 302, I.P.C and imposed the sentence as has been stated hereinbefore. The court held that In the meantime, information was received at the police station from Safdarjung Hospital that the deceased had been admitted there and on the basis of the said information, the police rushed to the hospital where they met PWs 1 and 8. As the prosecution case would further unfurl after the death took place they proceeded with the investigation, seized the burnt clothes, a quilt, one plastic cane, one match-box and match stick and sent the dead body for post mortem. The investigating agency in course of


investigation arrested the husband on 03.11.1997 and after recording the statements of number of witnesses laid the chargesheet for the offence punishable u/s. 302 IPC before the competent Court, which in turn committed the matter to the Court of Session and eventually it was tried by the learned Additional Sessions Judge. The accused abjured his guilt and pleaded that he was not at home as he had gone to his sister’s place, Shyamwati, DW-1 at MJ-1/61, Vikas Puri, Delhi and claimed to be tried. On an appeal being preferred, the High Court reappreciating the evidence and placing reliance on the oral dying declaration and the testimony of the brother and further accepting the post mortem report found that the learned trial Judge had really not faulted in recording the conviction. Being of this view, it dismissed the appeal. We have heard Ms. Nupur Choudhary, Advocate (Amicus Curiae) for the appellant and Mr. W.A. Quadri, counsel for the State. In the cross-examination he has categorically denied the suggestion that the injuries received by the deceased could have been sustained because of kerosene oil from the stove fell on her body due to the pinning of the stove and also by fall of a tin of kerosene oil on the floor. He has deposed without any equivocation that the burn injuries sustained by the deceased were not possible due to accidental burns. The High Court has taken note of the FSL Report, Ext. PW 20/B, from which it is evident that the analysis by gas liquid chromatography showed, kerosene oil residues were found on the scalp hair of the deceased. It is apt to note that the presence of kerosene on the scalp hair of the deceased and presence of dust particles in the larynx of the deceased clearly evince that kerosene oil was poured on the skull of the deceased which could not have happened by accident. The testimony of the daughter, Seema, PW-3, a young girl of ten years that the kerosene oil accidentally spilled on the body of her mother is thus absolutely unbelievable. We are disposed to think so when we weigh the medical testimony vis-a-vis the ocular testimony. There is no dispute that the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner as alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.


Thus, the law is quite clear that if the dying declaration is absolutely credible and nothing is brought on record that the deceased was in such a condition, he or she could not have made a dying declaration to a witness, there is no justification to discard the same. In the instant case, PW-1 had immediately rushed to the house of the deceased and she had told him that her husband had poured kerosene on her. The plea taken by the appellant that he has been falsely implicated because his money was deposited with the in-laws and they were not inclined to return, does not also really breathe the truth, for there is even no suggestion to that effect. In the instant case, nothing has been brought on record that it was a physical impossibility of the presence of the accused to be at the scene of the offence by reason of his presence at another place. The plea can succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed. [Dudh Nath Pandey v. State of U.P., (1981) 1 SCC 166]. The evidence of the sister, DW-1, does not inspire any confidence. The cumulative effect of the evidence as regards the presence of the accused at the scene of occurrence cannot be disbelieved on the basis of bald utterance of the sister which is not only sketchy but also defies reason. Hence, we are obliged to concur with the findings recorded on this score by the learned trial Judge that has been given the stamp of approval by the High Court. Consequently, the appeal, being devoid of merit, stands dismissed. Appeal dismissed

4 Ramakant Mishra @ Lalu Etc.


Facts These Appeals assail the Judgment dated 13.07.2010 of the learned Single Judge, High Court of Judicature at Allahabad, Lucknow, who had affirmed the conviction of the Appellants and the sentencing under Sections 498A and 304B of the IPC pronounced by the VIIIth Additional District & Sessions Judge, Faizabad on 15.4.1999. The essay, therefore, is to reverse the concurrent findings and sentence of the Courts below. The endeavour of the learned counsel for the Appellants is almost entirely predicated on an exculpatory Dying Declaration allegedly made by the deceased, who was the wife of the 1st Appellant and the sister-in-law of the

5. 2015 Indlaw SC 149.


2nd Appellant and the 3rd Appellant. The deceased Vijay Lakshmi was married to the 1st Appellant, Ramakant Mishra, in 1989 and from that wedlock a son named Sonu was begotten. Sonu has been living with his maternal grandparents who have cared for all his requirements, without any efforts on the part of the Accused towards taking over his custody or making any contribution for his expenses. The prosecution has shown/proved that due to non-fulfillment of demands of dowry the deceased was harassed, tortured and treated with cruelty. The exact date of the marriage is not forthcoming, but it avowedly took place much before the expiry of seven years of the unnatural death of Vijay Lakshmi. On the morning of 21.9.1994 she has been shown by the prosecution to have been put on fire after sprinkling kerosene oil on her body. The husband/Appellant No.1 and the other Accused appear to have admitted her in a hospital and, thereafter, disappeared from the scene, not even being bothered to be present at her cremation. She succumbed to 90-95 per cent burn injuries at 11.30 p.m. that very day. Jagdamba, Appellant No.2 and brother-in-law of the deceased, has stated that when the deceased was preparing milk on the chulah, Sonu toppled the container of kerosene oil and its contents spilled on the floor; in her endeavour to pick up her son Sonu, her saree allegedly got caught in the chulah, resulting in the saree catching fire and her receiving 90-95 per cent burns. In the Impugned Order it has been noted that the opinion of the Doctor was that death resulted from burn injuries. The Chargesheet was submitted against four Accused named in the FIR, one of whom (the father-in-law of the deceased) has died. In harmony with the ratio of Sher Singh, so far as the present case is concerned, there can be no cavil that the prosecution has ‘shown’ that Section 304B stands attracted since the death of the wife occurred within seven years of the solemnization of the marriage; indubitably, it was an unnatural death. It has also come in evidence that immediately after her marriage a demand for a scooter was made and this demand recurred with regularity. The court held that Very recently, this Court had the opportunity of interpreting Section 304B of the IPC in Criminal Appeal No.1592 of 2011, titled Sher Singh v. State of Haryana, [reported in (2015) 1 SCR 29] which was authored by one of us (Vikramajit Sen,J.). Succinctly stated, it had been held therein that the use of word ‘shown’ instead of ‘proved’ in Section 304B indicates that the onus cast on the prosecution would stand satisfied on the anvil of a mere preponderance of probability. In other words, ‘shown’ will have to be read up to mean ‘proved’ but only to the extent of preponderance of probability. Thereafter, the word ‘deemed’ used in that Section is to be read down to require an accused to prove his innocence, but beyond reasonable doubt. The ‘deemed’ culpability of the accused leaving no room for the accused to prove innocence was, accordingly, read down to a strong


‘presumption’ of his culpability. However, the accused is required to dislodge this presumption by proving his innocence beyond reasonable doubt as distinct from preponderance of possibility. The defence has rested very heavily nay, almost entirely, on the alleged Dying Declaration attributed to the deceased. The admissibility of a Dying Declaration as a piece of evidence in a Trial is governed by S. 32(1) of the Evidence Act, 1872. Section 32, as a whole, enunciates the exceptions to the rule of non-admissibility of hearsay evidences, eventuated out of necessity to give relevance to the statements made by a person whose attendance cannot be procured for reasons stipulated in the section. Postulating the essential ingredients to define what exactly would constitute a hearsay is an arduous task, and since we are only concerned with one of its exceptions, we should forbear entering into the entire arena. The risks while admitting a Dying Declaration and the statements falling within the domain of S. 32(1) run higher in contrast to other sundry evidences, and this entails a huge bearing on their admissibility and credibility. The central question, however, remains as to whether the alleged Dying Declaration attracts authenticity. Since the prosecution has succeeded in showing/proving by preponderance of probability that a dowry death has occurred, the burden of proving innocence has shifted to the accused. It appears to us to be unexceptionable that whenever a person is brought to a hospital in an injured state which indicates foul-play, the hospital authorities are enjoined to treat it as a medico-legal case and inform the police. If the doctor, who has attended the injured, is of the opinion that death is likely to ensue, it is essential for him to immediately report the case to the police; any delay in doing so will almost never be brooked. The police in turn should be alive to the need to record a declaration/statement of the injured person, by pursuing a procedure which would make the recording of it beyond the pale of doubt. This is why an investigating officer (I.O.) is expected to alert the jurisdictional Magistrate of the occurrence, who in turn should immediately examine the injured. When this procedure is adopted, conditional on the certification of a doctor that the injured is in a fit state to make a statement, a Dying Declaration assumes incontrovertible evidentiary value. On keeping this information that the Dying Declaration of Vijay Lakshmi was recorded by the Magistrate I did not consider any need of this thing”. Neither the Doctor DW2 who had allegedly certified that the deceased was in a fit condition to make a statement nor the Tehsildar who had allegedly written down the alleged Dying Declaration has stated the manner in which the Tehsildar had been conscripted or located to perform this important recording. The Dying Declaration appears to have mysteriously popped up and referred


to at the time of praying for bail. The chain or sequence of events which lead to its recording remains undisclosed The Appeals are dismissed in the above terms. The interim Order is recalled. Appeals dismissed

5 Tejram Patil

Vs. State of Maharashtra6

Facts This appeal has been preferred against the judgment and order dated 17th November, 2008 passed by the High Court of Judicature at Bombay, Nagpur Bench, in Criminal Appeal No.455 of 2003, upholding the conviction of the appellant u/s. 302 IPC and sentence of rigorous imprisonment for life. The appellant has also been directed to pay fine of Rs.10,000/-, in default, to suffer RI for six months. Deceased Savita was married to the appellant about three years prior to the date of the incident in question, i.e., on 28th March, 1999. One son and one daughter were born out of the wedlock. They were living in a rented house owned by PW1 Vimalbai. According to the prosecution, the deceased was subjected to cruelty and on the fateful day, the appellant returned home in drunken condition and started abusing the deceased and her mother Prabha Bai who had come on a visit to her daughter’s house. Thereafter, the appellant poured kerosene on the deceased and set her on fire. Prabhabai and Vimalbai, PW1, tried to extinguish the fire and received burn injuries in the process. They were taken to Medical College and Hospital, Nagpur. The deceased made a dying declaration (‘DD’) (Exhibit 45) before PSI Sunil Eknadi Wanjari. She succumbed to her injuries at 6.25 A.M. on 29th March, 1999. Prabhabai also made a DD (Exhibit 43) before the PSI Bhila Narayan Bachao (PW5), on the basis of which FIR was lodged at Police Station Imambada. Rajiv Babarao Raut (PW3), Special Judicial Magistrate (SJM) also recorded DD of Prabhabai (Exhibit 41) at 9.30 A.M. on 29th March, 1999. The said Magistrate also recorded the statement of PW1 Vimalbai (Exhibit 29). Prabhabai died on 1st April, 1999 at 2.2.0 A.M. with 77% burn injuries. The dead bodies were subjected to post mortem. The court held that The stand of the accused in his statement u/s. 313 was that the deceased Savita committed suicide by pouring kerosene on herself

6. SC 526, 2015.


when the accused failed to meet her demand to pay her Rs.200/- for domestic expenses. The trial Court held the case of the prosecution proved mainly by relying on DDs Exhibits 41 and 43 made by deceased Prabhabai. The said DDs were held to be admissible and genuine. On appeal, the High Court affirmed the conviction and sentence of the appellant but on a different basis. The High Court held the DDs Exhibits 41 and 43 to be inadmissible for cause of death of Savita as the said statements were made by deceased Prabhabai and could be relevant only for the cause of death of Prabhabai. However, the DD Exhibit 45 made by Savita which was not accepted by the trial Court, was accepted by the High Court. It was held that since Savita had 100 per cent burn injuries, there was urgency for PSI Sunil Eknadi Wanjari PW4 to record her statement and in such circumstances failure to obtain medical evidence or to wait for the Magistrate was not a letter to the reliability of the said DD. On the other hand, learned counsel for the State supported the judgment of the courts below. According to him, DD made by deceased Savita as well as DDs made by Prabhabai were admissible in evidence and were reliable. He further submitted that the incident has been admitted by the appellant and his only defence was that the deceased Savita committed suicide by pouring kerosene on herself which has been found to be false by both the courts below. Thus, the circumstantial evidence of the deceased being present at the place of occurrence and the death being not suicidal rule out the chance of the appellant being innocent. The circumstantial evidence itself proves the guilt of the appellant. We have given our anxious consideration to the rival submissions and perused the evidence on record. It is thus clear that the DD is admissible not only in relation to the cause of death of the person making the statement and as to circumstances of the transaction which resulted in his death, if the circumstances of the said transaction relate to death of another person, the statement cannot be held to be inadmissible when circumstances of “his” death are integrally connected to the circumstances of death of such other person. In the present case, the statement of pouring of kerosene on Savita, intervention of Prabhabai in the process and her receiving burn injuries resulting in her death are integral part of the same transaction. Thus, the statement which relates to circumstances of the transaction resulting in her death being admissible, it can be relied upon to show as to how death of Savita took place. The said statement is also corroborated by the admission of the accused himself to the extent that the death of Savita was by burning and


the deceased Prabhabai received the burn injuries in the same incident. Though, the version of the accused that it was suicide, the same has been rightly found to be false. In these circumstances, the death of Savita is proved beyond reasonable doubt to be homicidal death by burning and by pouring of kerosene and setting her on fire by the accused. This stands established by the statement of Prabhabai and the attendant circumstances. The said statement was duly recorded by the Magistrate and carries an endorsement by the doctor about her consciousness and fitness to make a statement. There is no reason for not accepting the authenticity of the version given in the said DD. Accordingly, we hold that the DD made by Prabhabai was admissible as to the circumstances of the transaction which included the circumstance of pouring of kerosene and lighting of fire by the accused resulting in death of the deceased. As a result of the above discussion, we hold that the case of the prosecution against the appellant is proved beyond reasonable doubt. No interference is called for with his conviction and sentence. The appeal is accordingly dismissed. Appeal dismissed

6 State of Karnataka

Vs. Suvarnnamma and another7

Facts This appeal has been preferred against the Order dated 22nd December, 2005, of the High Court of Karnataka at Bangalore in Criminal Appeal No.1818 of 2004 setting aside the conviction of the accused-respondent Nos.1 and 2 passed by the Trial Court under Sections 498-A and 304-B of the Indian Penal Code (“IPC”) and Sections 3,4 and 6 of the Dowry Prohibition Act, and sentence imposed including the sentence to undergo imprisonment for life for the offence punishable under Section 304- B of the IPC. The case of the prosecution is that the deceased Soumya was married to the accused- Manjunath on 13th May, 1996. She was living with her husband and his mother co-accused Suvarnamma. She was not treated well and was harassed for dowry. On 31st August, 1998 at about 6.15 P.M., when her husband had gone out, the accused Suvarnamma brought kerosene can,

7. SC 412, 2014.


poured kerosene on the deceased-Soumya and ignited the fire. She cried for help but Suvernamma put a rug on her. Thereafter, she shifted her to Chigateri General Hospital, Davangere. PW-19, Dr. Rajeshwari Devi, examined her. Next day in the morning of 1st September, 1998, at about 7 A.M., PW-26, V. Dhananjaya, PSI, in the presence of PW-19, Dr. Rajeshwari Devi recorded her statement and on that basis registered First Information Report. Soumya died on 3rd September, 1998. After investigation, the accused-the husband, the mother-in-law and the sister-in-law, were sent up for trial. The prosecution examined 26 witnesses which included the family members of the deceased who gave evidence of demand of dowry and also the oral dying declarations made before them. PW-22, Taluqa Executive Magistrate, was examined to prove the inquest report. The prosecution also examined the medical experts and the investigating officers. The accused denied the prosecution allegations and stated that they were taken out of their house by the police at 12 A.M. mid-night and arrested and were not aware of anything. The Trial Court held that the offences were proved against the respondents-accused. However, co-accused Geetha, sister of Manjunath was acquitted. The Trial Court held that the demand of dowry soon before the death was established by the evidence of family members of the deceased which was reliable. The Trial Court rejected the plea that the prosecution had withheld the dying declaration (Exhibit D-7) recorded by PW-22 that the deceased caught fire accidentally; she had switched on the gas stove and had gone to change her clothes; when after returning back, she lit the match stick, as a result of which fire broke out resulting in accidental burn injuries. The court held that The Court dealing with a criminal trial is to perform the task of ascertaining the truth from the material before it. It has to punish the guilty and protect the innocent. Burden of proof is on the prosecution and the prosecution has to establish its case beyond reasonable doubt. Much weight cannot be given to minor discrepancies which are bound to occur on account of difference in perception, loss of memory and other invariable factors. In the absence of direct evidence, the circumstantial evidence can be the basis of conviction if the circumstances are of conclusive nature and rule out all reasonable possibilities of accused being innocent. Once the prosecution probabilises the involvement of the accused but the accused takes a false plea, such false plea can be taken as an additional circumstance against the accused. Though Art. 20 (3) of the Constitution incorporates the rule against self-incrimination, the scope and the content of


the said rule does not require the Court to ignore the conduct of the accused in not correctly disclosing the facts within his knowledge. When the accused takes a false plea about the facts exclusively known to him, such circumstance is a vital additional circumstance against the accused. It is also well settled that though the investigating agency is expected to be fair and efficient, any lapse on its part cannot per se be a ground to throw out the prosecution case when there is overwhelming evidence to prove the offence. What is surprising and wholly unacceptable is the stand of the accused who were husband and mother in-law of the deceased, living in the same house and that they had no idea that the deceased received burn injuries. This stand is clearly incompatible with the stand in Exhibit D-7 that the accused mother in-law of the deceased was very much present in the house and she shifted the deceased to the hospital. Even if the dying declaration (Exhibit D-7) was recorded, the fact remains that when it was recorded, even according to the said dying declaration, the deceased was accompanied by her mother in-law who is one of the accused. The High Court has not at all discussed the truthfulness or otherwise of the plea of the accused that though they were at home, they had no knowledge of burn injuries. This stand in their statement u/s. 313 Cr.P.C. is clearly false. They were expected to know the incident and make disclosure thereof, absence of which was a circumstance against them. In appeal against the acquittal, if a possible view has been taken, no interference is required, but if the view taken is not legally sustainable, the Court has ample powers to interfere with the order of acquittal. Accordingly, we hold that the case against the accused stands fully established. The view taken by the High Court for acquittal is not a possible view. The appeal is allowed. The order passed by the High Court is set aside and that passed by the Trial Court is restored with the modification that the sentence of imprisonment awarded to the accused under Section 304B will stand reduced to R.I. for seven years while maintaining sentence under other heads. The accused may be arrested to serve out the sentence imposed by the Trial Court, as modified above. Appeal allowed


7 Jumni and Others

Vs. State of Haryana8

FactsThe two questions for consideration and discussion relate to the value of the testimony of alibi witnesses and the severability of a dying declaration. In the present appeals, we are of the opinion that the testimony of the alibi witnesses of two of the four appellants deserves acceptance and the dying declaration so closely concerns all four appellants that it is not possible to sever the role of the sets of appellants, resulting in our giving the benefit of doubt to the remaining two appellants. The facts:Six relatives (by marriage) of deceased Asha Devi were accused of having murdered her and thereby having committed an offence punishable u/s. 302 of the Indian Penal Code. The accused persons were Rati Ram (father-in-law, now died), Jumni (mother-in-law and appellant in Criminal Appeal No. 1159 of 2005), Sham Lal (brother-in-law and appellant in Criminal Appeal No. 1159 of 2005), Balbir Prasad (brother-in-law and appellant in Criminal Appeal No.1159 of 2005, who, we were told has since died), Prem Nath (brother-in-law and appellant in Criminal Appeal No. 603 of 2005) and Raj Bala (wife of Prem Nath and appellant in Criminal Appeal No. 603 of 2005). Asha Devi was married at the age of 16 to Jagdish who was employed in the army. According to her father, Asha Devi lived with Jagdish for about one year and thereafter she lived in village Bhojpur in district Jagadhari, Haryana, in a one room tenement along with her two children aged 5 years and 1½ years. Her in- laws were staying in an adjacent tenement. There is no allegation or evidence of any matrimonial disharmony between Jagdish and Asha Devi who had been married for about nine years nor is there any allegation of any demand or harassment for dowry from Asha Devi. The case of the prosecution is entirely dependent on the dying declaration of Asha Devi. In her statement, Asha Devi stated that at about 12.00 noon on 4th April 1996 she was given a severe beating by all her in- laws. Thereafter, at about 3.00 p.m. she wanted to lodge a complaint with the police but all her in- laws prevented her from doing so. Rather, they suggested that she should be set ablaze. The court held that On the morning of 5th April 1996, Asha Devi seems to have had a quarrel and in a fit of anger she broke her bangles. Upon this, 8. SC 235, 2014.


Jumni said that she should be finished. Consequently, all her in-laws tied her up and poured kerosene on her and set her on fire. This was at about 7.30 a.m. At about 10.30 a.m. Asha Devi was taken to the Civil Hospital at Jagadhari. Seeing her condition with 100% burns, the doctor on duty, Dr. M.R. Passi (PW-1) immediately informed the police who took urgent steps for having her statement recorded. Prem Nath and Raj Bala produced alibi witnesses before the Trial Judge to show that Prem Nath was an employee in the HMT factory in Pinjore and that on 4th April 1996 as well as on 5th April 1996 he was in Pinjore and there was no question of his or his wife’s involvement in the incident. The accused also produced Chandan Singh, Sub-Inspector, Food Supply, Yamunanagar as DW-7 to prove, on the basis of the ration card issued to Jagdish and Rati Ram, that they lived in the same neighbourhood but not together as stated by Asha Devi. Similarly, Puran Chand a neighbour of Jagdish was produced as DW-8 and his testimony was to the effect that he saw smoke coming out of Jagdish’s house and he heard some children making a noise. Thereupon he went to Jagdish’s house and found that the door of the tenement was bolted from inside. He, along with one Gurbachan broke open the door and found Asha Devi lying burnt in the tenement. They put out the fire and called Rati Ram who was working in the nearby fields. Thereafter, Rati Ram took Asha Devi to the Civil Hospital. Puran Chand also stated that Prem Nath and Raj Bala were not present at the spot. On these facts, the Trial Judge concluded that Asha Devi was fit to make a dying declaration. The next question addressed by the Trial Judge was whether the dying declaration contained any falsehood. In this regard, the Trial Judge came to the conclusion that there was nothing to suggest that the dying declaration was incorrect in any manner or that Asha Devi made allegations out of some vengeance. Finally, the Trial Judge examined the plea of alibi raised by Prem Nath and Raj Bala and in this regard he concluded that there was every possibility of both of them being present in village Bhojpur both on 4th April 1996 when Asha Devi was given a beating as well as in the early morning of 5th April 1996 when Asha Devi was set on fire It is true that when a person is on his or her death bed, there is no reason to state a falsehood but it is equally true that it is not possible to delve into the mind of a person who is facing death. In the present case the death of Asha Devi and the circumstances in which she died are extremely unfortunate but at the same time it does appear that for some inexplicable reason she put the


blame for her death on all her in-laws without exception. Perhaps a more effective investigation or a more effective cross-examination of the witnesses would have brought out the truth but unfortunately on the record as it stands, there is no option but to give the benefit of doubt to Jumni (and Sham Lal) and to hold that they were not proved guilty of the offence of having murdered Asha Devi. Insofar as Prem Nath and Raj Bala are concerned there is sufficient material to accept their alibi and they must be acquitted of the charges made against them. As mentioned above Rati Ram and Balbir Prasad are already dead and nothing need be said about their involvement in the incident. Were they alive, they too would have been entitled to the benefit of doubt since the facts pertaining to them were similar to those of Jumni and Sham Lal. Conclusion:The plea of alibi set up by Prem Nath and Raj Bala deserve acceptance and are accepted. They are found not guilty of having murdered Asha Devi. Jumni and Sham Lal are given the benefit of doubt and the charge against them of having murdered Asha Devi is not proved beyond a reasonable doubt. Both the appeals are accordingly allowed. Appeals allowed

8 Bhadragiri Venkata Ravi

Vs. Public Prosecutor High Court Of A.P., Hyderabad9

Facts This appeal has been filed against the judgment and order dated 13.9.2006, passed by the High Court of Andhra Pradesh at Hyderabad in Criminal Appeal No.863 of 2004, by way of which the High Court reversed the judgment and order of the Sessions Judge, Vijianagaram dated 19.10.2001, passed in Sessions Case No.40 of 2001, by way of which and whereunder the appellant stood acquitted of the charges u/s. 302 read with S. 201 of the Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’). 2. Facts and circumstances giving rise to this appeal are that: A. The appellant had developed intimacy with Ratna Kumari (deceased) and got an inter caste marriage, registered on 26.10.1991 under the Hindu Marriage Act, 1955. Their married life was not very happy, therefore, Divorce Petition being O.P. No.37/92 was filed and the same was rejected by the Family Court on the ground that one year had not elapsed after their marriage. 9. SC 345, 2014.


B. Thus, a fresh Divorce Petition, i.e., O.P. No.65 of 1992 was filed on 31.12.1992. Their marriage was dissolved and the appellant and deceased stood separated. There was no child out of the said wedlock. C. The deceased was a well-qualified woman as she has obtained M.Com., LL.B. qualification. In order to earn her livelihood, she had been giving tuitions to the students in a rented premises i.e. House no.754, Phoolbagh Colony, Vijianagaram. The appellant, as alleged, in spite of their divorce, was having visiting terms with the deceased. D. On 15.4.2000, Ratna Kumari was admitted in the Govt. Headquarter Hospital, Vijianagaram at 1.30 p.m. with 44% burns. Her statement/complaint was recorded by the head constable of police wherein she had stated that a stove full of kerosene oil fell upon her and thus, she suffered burn injuries. On the basis of the same an FIR was registered. E. On the same day, her dying declaration was recorded by the Executive Magistrate after getting certificate of fitness from the Doctor, wherein a similar statement had been recorded. She remained admitted in the hospital. Ratna Kumari (deceased) expired on 3.6.2000 in the hospital and on getting the information, the police altered the FIR into S. 302 and 498A IPC. The doctor conducted the post mortem and opined that the cause of death was septicaemia shock due to ante-mortem burns. G. After necessary investigation, the police filed charge sheet on 2.12.2000 against the appellant and his parents for offences u/ss. 302 and 498A IPC. After committal of the proceedings, the trial commenced on 6.8.2001. After conclusion of the trial, the Trial Court vide judgment and order dated 19.10.2001 acquitted all the accused observing that prosecution could not prove any case whatsoever against either of them as there was no iota of evidence to show the involvement of either of them. H. Aggrieved, the State preferred Criminal Appeal No.863 of 2004 before the High Court of Andhra Pradesh at Hyderabad. The court dismissed the appeal against the parents of the appellant at the stage of admission itself. The appeal was admitted only qua the appellant. The appeal of the State has been allowed by the High Court vide judgment and order dated 13.9.2006, convicting the appellant u/s. 302 IPC and awarding the sentence to undergo life imprisonment and to pay fine of Rs.5,000/-, in default, to undergo further S.I. for a period of one year. Appellant was acquitted of all other charges. Hence, this appeal. The court held that The first two dying declarations were made in the Government Headquarter Hospital, Vijianagaram and the Magistrate had reached there on being called by the police. There is no inconsistency between the first two dying declarations and it is evident from the said dying


declarations recorded on 15.4.2000 that both of them had been recorded in the Government Headquarter Hospital, Vijianagaram. The third dying declaration makes it evident that on 15.4.2000 she had not been taken to the Government Hospital and her in-laws were not available on 14.4.2000. Her husband had been treating her at home and had also given her injections for two-three days. Her parents-in- laws reached on 15.4.2000 from Rajahmundry and then she was admitted to the private hospital on 16.4.2000. As she could not recover therein, then she was transferred to Government Headquarter Hospital, Vijianagaram on that day. Matcha Basavaraju (PW.8), a young student coming for tuition to the deceased deposed that he was not knowing the husband of Ratna but he had seen the appellant going on his scooter in Phoolbagh colony. He had never seen the appellant in the house of Ratna. Dr. Ch. Suryanarayana (PW.16) deposed that he had signed the dying declaration dated 28.4.2000. That Ratna was having 44% of burns. The record of the hospital revealed that she had been admitted in the hospital on 14.5.2000 and had been given regular treatment and blood many times between 14.5.2000 and 31.5.2000. As per the hospital record she had been brought there by Lalita, a friend of Ratna (deceased). She had given the name of her husband as Ramana and it has further been mentioned in the hospital record that the patient herself had stated that she suffered with burn injuries accidentally. In case of plural/multiple dying declarations, the court has to scrutinise the evidence cautiously and must find out whether there is consistency particularly in material particulars therein. In case there are inter-se discrepancies in the depositions of the witnesses given in support of one of the dying declarations, it would not be safe to rely upon the same. In fact it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If the dying declaration is found to be voluntary, reliable and made in a fit mental condition, it can be relied upon without any corroboration. But the statements should be consistent throughout. This court has time and again laid down parameters for interference by a superior court against the order of acquittal. In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court’s acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.


The High Court did not consider the matter in correct perspective nor observed the parameters laid down by this court to interfere against the order of acquittal. In view of the above, the appeal is allowed and the judgment and order of the High Court is set aside. The judgment and order of the Sessions Court is restored. The appellant is on bail. His bail bonds stand discharged. Appeal allowed

9 Ahir Devayat Bhima

Vs. State of Gujarat10

Facts Seven accused persons faced trial for alleged commission of offences punishable under Sections 302, 147, 148 and 149 of the Indian Penal Code, 1860 (in short the ‘ IPC’). One of them, A-7 was acquitted by the High Court. However, in respect of the other six who were convicted by the Trial Court for offences punishable u/s. 302 read with Section 34, along with Sections 147, 148, 149 IPC, conviction and sentence was maintained by the High Court. By orders dated 23.08.1996 and 07.10.1996, leave was refused so far as accused-appellant Nos. 1,2,3,5 and 6 are concerned. The present appeal relates to A-4 only. Learned counsel for the appellant submitted that the evidence so far as appellant-accused A-4 is concerned, is not sufficient to bring home the accusations. In fact, in the dying declaration purported to have been given by the deceased before PW-8, his name was not disclosed. Additionally, PW-10 who was supposed to be an eye-witness did not ascribe any role to him. Therefore, the conviction as done by the Trial Court and maintained by the High Court clearly warrants interference. The court held thatIn response, learned counsel for the respondent-State of Gujarat submitted that even though PW-10 has not named the appellant and there is omission in the dying declaration to name him, in view of the evidence of PW-11, his conviction is well merited. We have gone through the evidence on record and considered the judgments of the two courts below. In our view, the evidence is not sufficient in view of the inconsistencies and omissions to hold the appellant, A-4 guilty of the offence, as alleged. The

10. SC 1834, 2004.


evidence of PW-11 is not sufficient enough to outweigh the omissions in the evidence of PW-10 and the dying declaration given by the deceased before PW-8 in implicating A-4. The conviction and the consequential sentence imposed are set aside. The appeal is allowed on the above terms. The bail bonds of the appellant so far as this case is concerned, shall stand discharged. Appeal allowed

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