Different Segments/Parts of the Code of Criminal Procedure, 1973 - An Overview

The Code of Criminal Procedure, 1973 is divided into 37 Chapters - (From Section 1 to Section 484)

It has two Schedules:

⮚ First Schedule - Classifications of Offences (further divided into 2 parts)
⮚ Second Schedule - Form

Introductory Segments/Parts of CrPC: Read these provisions before starting a discussion on Pre Trial
Proceedings:

⮚ Definitions Clause (Section 2)

⮚ Constitution of Criminal Courts and Offices including Office of Executive Magistrate (Chapter II
-Sections 6 to 25A)

⮚ Powers of Courts (Chapter III - Sections 26 to 35)

⮚ Powers of Superior Officers of Police (Chapter IV - Section 36)

⮚ Aid to Magistrate and the Police by the Members of General Public (Chapter IV - Sections 37 to 40)

The provisions of the Code of Criminal Procedure, 1973 (CrPC) may be divided into 3 main
Segments/Parts which are as follows:

1 Provisions relating to Pre-Trial Proceedings: Under the provisions of CrPC Pre-Trial Proceedings may
be conducted by Police or Criminal Courts (Including Sessions Court & Courts of Judicial
Magistrates/Metropolitan Magistrates)

A. Pre-Trial Proceedings by the Police (Investigation Agency):

⮚ First Information Report and Investigation (Chapter XII - Sections 154 to 176)

⮚ Arrest (Chapter V of CrPC - Sections 41 to 60A)

⮚ Search and Seizure (Chapter VII - Sections 91 to 105)

B. Pre-Trial Proceedings by or before Criminal Court:

⮚ Criminal Complaints to Judicial Magistrates (Chapter XV - Sections 200 to 203)

⮚ Cognizance (Chapter XIV - Sections 190 to 199)

⮚ Issue of Process by Judicial Magistrates (Chapter XVI - Sections 204 to 210)

⮚ Charge including Form of Charges and Joinder of Charges (Chapter XVII - Section 211 to 224)

⮚ Provisions relating to Bail and Bond (Chapter XXXIII - Sections 436 to 450)

Note: Provisions relating to Bail and Bond can be invoked before Trial, during Trial and after Trial.

2 Provisions relating to Trial

Meaning of Trial: Recording of Evidences against and for the accused to find whether the accused is guilty
or not.

At this stage the Evidence Act would come into picture.

⮚ Jurisdictions of Criminal Courts in Inquiries and Trials (Chapter XIII - Sections 177 to 189)

Different Kinds of Trial under the provisions of CrPC:

⮚ Trial before a Court of Session (Chapter XVIII - Sections 225 to 237)

⮚ Warrant Trial of Cases Instituted on a Police Report (Chapter XIX - Sections 238 to 243 & Sections
248 to 250)

⮚ Warrant Trial of Cases Otherwise than on a Police Report (Chapter XIX - Sections 244 to 247 &
Sections 248 to 250)

⮚ Summons Trial (Chapter XX - Sections 251 to 259)

⮚ Summary Trial (Chapter XXI - Sections 260 to 265)

❖ Mode of Taking and Recording Evidences and Commissions for the Examination of Witnesses
(Chapter XIII -Sections 272 to 299)

❖ General Provisions as to Inquiries and Trials (Chapter XXIV - Sections 300 to 327)

❖ Judgment (Chapter XXVII - Sections 353 to 365)

❖ Reference & Revision (Chapter XXX - Sections 395 to 405)

3. Provisions relating to Post-Trial Proceedings

⮚ Submission of Death Sentence for Confirmation (Chapter XXVIII - Sections 366 to 371)

⮚ Appeal (Chapter XXIX - Sections 372 to 394)

Here, provisions relating to Revisions may also be included.

⮚ Execution, Suspension, Remission and Commutation of Sentence (Chapter XXXII- Sections 413 to
435)

Other Segments/Parts of CrPC: (I would prefer to call these peripheral parts of CrPC)

⮚ Provisions relating to Security for Keeping the Peace and for Good Behaviour (Chapter VIII - Sections
106 to 124)

⮚ Provisions relating to Maintenance of Wives, Children and Parents (Chapter IX - Sections 125 to 128)

⮚ Provisions relating to Maintenance of Public Order and Tranquility (Chapter X) which includes:

(i) Provisions relating to Unlawful Assemblies (Sections 129 to 132)

(ii) Provisions relating to Public Nuisance (Sections 133 to 143)

 (iii)Provisions relating to Urgent Cases of Nuisance and Apprehended Danger (Sections 144 and
144A)

(iv) Disputes as to Immovable Property (Sections 145 to 148)

⮚ Preventive Action of Police (Chapter XI -Sections 149 to 153)

These provisions are generally used by Police and Executive Magistrates for the maintenance of Law and
Order.

⮚ Provisions as to Accused Persons of Unsound Mind (Chapter XXV - Sections 328 to 339)

⮚ Provisions as to Offences Affecting the Administration of Justice (Chapter XXVI - Section 340 to 352)

⮚ Transfer of Criminal Cases (Chapter XXX1 - Sections 406 to 412)

⮚ Irregular Proceedings (Chapter XXXV - Sections 460-466)

⮚ Limitation for Taking Cognizance of Certain Offences (Sections 467 - 473)

 Importance of Criminal Procedure
Suggested Readings:
(1) 37th Report of Law Commission of India, (1967)
(2) Lqbal Ismail Sodawala v. The State of Maharashtra and Ors, (1974 AIR SC 1880)
(3) Joginder Kumar vs. State of U.P. ( AIR 1994 SC 1349).
(4) Report of Committee on Reforms of Criminal Justice System, 2003 (popularly known as Malimath Committee Report [Para
1.35 Vol. 1]

Code of Criminal Procedure is a procedural law. According to Article 21 of the constitution of India, “No person shall be
deprived of his life or personal liberty except according to procedure established by law.” Cr.P.C. provides the procedure by
which life and liberty of person can be deprived after following procedure laid down in it. It creates confidence among all
persons including poor. It also provides speedy law related to maintenance. It also lays down procedure for fair trial. Several
rights and remedies are also available in favour of accused as well as victim.

The Code of Criminal Procedure provides the machinery for the detection of crime, apprehension of suspected criminals,
collection of evidence, determination of the guilt or innocence of the suspected person, and the imposition of suitable
punishment on the guilty.
It is further aimed at trying to provide a balance between the needs of the investigating and adjudicatory bodies to
detect crime, maintain law and order and the rights of the accused.
(1) 37th Report of Law Commission of India (1967)

The importance of Code of Criminal Procedure is based on two considerations:-

(i) expense, delay or uncertainty in applying the best laws for the prevention and punishment of offences would render those
laws useless or oppressive:
(ii) law relating to criminal procedure is more constantly used and affects a greater number of persons than any other law.

(2) In the case of Lqbal Ismail Sodawala v. The State of Maharashtra and Ors. (1974 AIR SC 1880), Hon’ble Justice H R
Khanna observed thus:

The Code of Criminal Procedure is essentially a Code of procedure and like all procedural laws, is designed to further the
ends of justice. At the same time it has to be borne in mind that it is procedure that spells much of the difference between rule
of law and rule by whim and caprice.
The object of the Code is to ensure for the accused a full and fair trial, in accordance with the principles of natural justice.
Therefore the main purpose of procedural law is to establish rule of law.

(3) In Joginder Kumar v. State of U.P. ( AIR 1994 SC 1349), Hon’ble Chief Justice M.N. Venkatachalliah observed thus:

“The quality of a nation’s civilization can be largely measured by the methods it uses in the enforcement of criminal law.” In
this way criminal procedure is a measurement for civilization.
(4) Relevant Excerpt from the Malimath Committee Report (2003):

Substantive penal laws are enacted prescribing punishment for the invasion of the rights. When there is an invasion of these
rights of the citizens it becomes the duty of the State to apprehend the person guilty for such invasion, subject him to fair trial
and if found guilty to punish him. Substantive penal laws can be effective only when the procedural laws for enforcing them
are efficient. This in essence is the function of the criminal justice system.

It means efficiency of substantive law depends upon procedural law

 Important Definitions under CrPC
Some definitions under the Code can be discussed to develop an effective understanding of Classification of Offences under
the Code. Therefore, we will discuss these definition under the larger heading of Classification of Offences under CrPC.

Classification of Offences under CrPC: For the purpose of applying the provisions of the Code the offences may be classified
into 3 main categories. These are as follows:

1. Cognizable and Non-cognizable Offences:

Cognizable Offence is defined under Section 2 (c) which means an offence for which, and “cognizable case” means a case
in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force,
arrest without warrant.

Non-cognizable Offence is defined under Section 2 (l) “non- cognizable offence” means an offence for which, and “non-
cognizable case” means a case in which, a police officer has no authority to arrest without warrant.

Therefore, this classification is based on Power of Police to Arrest (and also to investigante an offence)
Differences between Cognizable and Non Cognizable Offences:

Cognizable Offences Non-cognizable Offences

1. Defined under Section 2(c) of Cr.P.C. 1. Defined under Section 2(l) of CrPC.
2. An offence for which, a police officer may, in accordance 2. An offence for which, a police officer has no authority
with the First Schedule or under any other law for the time to arrest without warrant.
being in force, arrest without warrant.
3. Part II of the First Schedule of the Code which deals with 3. Part II of the First Schedule of the Code which deals with
offences other than that of IPC and provides that if the offences other than that of IPC and provides that if the
offence is punishable with death, imprisonment for life or offence is punishable with imprisonment for less than 3
imprisonment for 3 years or more that offence shall be years or with fine only that offence shall be treated as
treated as cognizable offences. non-cognizable offences
4. First Informaton Report is registered under Section 154 4. Information is recorded under Section 155 of the Code.
of the Code.
5. Generally serious offences. 5. Generally less serious offences.
6. After recording the FIR under section 154, any officer in 6. No police officer shall investigate a non-cognizable case
charge of police station may, without the order of a without the order of a Magistrate having power to try such
Magistrate, investigate any cognizable case. [Section 156] case or commit the case for trial. [Section 155]
2. Bailable and Non-bailable Offence:

Section 2(a) gives the definition or meaning of both Bailable an Non-Bailable Offence:

According to Section 2 (a) “bailable offence” means an offence which is shown as bailable in the First Schedule, or which
is made bailable by any other law for the time being in force; and “non-bailable offence” means any other offence;

Therefore, the basis of this classification is release of accused/suspected person from custody.

The Supreme Court in Moti Ram & Ors. v. State of M.P., (1978) laid down the rule governing the law relating to bail in India
and observed that the bail is rule, jail is exception.

We wil discuss these definitions in brief detail while discussing the Law Relating to Bail in India.
Differences between Bailable Offence and Non-Bailable Offence
Bailable Offence Non-Bailable Offence
1. An offence which is shown as bailable in the First 1. Offence other than bailable offence. [Section 2(a)]
Schedule, or which is made bailable by any other law for
the time being in force. [Section 2(a)]
2. Part II of the First Schedule of the Code which deals with 2. Part II of the First Schedule of the Code which deals with
offences other than that of IPC and provides that if the offences other than that of IPC and provides that if the
offence is punishable with imprisonment for less than 3 offence is punishable with death, imprisonment for life or
years or with fine only that offence shall be treated imprisonment for 3 years or more that offence shall be
bailable offences. treated non-bailable offences.
3. Accused can claim bail as a matter of right. If he is 3. An accused cannot claim bail as a matter of right. Court or
fulfilling all other conditions. Officer in Charge of Police Station may grant bail. It is
discretion of Court or Officer in Charge of Police Station to
grant bail. There are certain exceptional cases when granting
of bail is mandatory in non-bailable offences as well. For
example Section 167, Section 437(2), Section 437(6), and
Section 437(7) etc.
4. No provision for Anticipatory Bail. 4. Provision of Anticipatory Bail is applicable. [See, Section
438 of CrPC]
3. Warrant Case and Summon Case:

According to Section 2 (x) “warrant- case” means a case relating to an offence punishable with death, imprisonment for
life or imprisonment for a term exceeding two years.

According to Section 2(w) “summon-case” means a case relating to an offence, and not being a warrant- case. [i.e. a
case relating to an offence punishable with an imprisonment for a term upto 2

Therefore, the basis of the classification of offences into Warrant Case and Summon Case - the seriousness of the
Offence.

This classification is useful:

to determine the type of trial procedure to be adopted in a case. The trial procedure prescribed for a warrant case is
much more elaborate than the trial procedure provided for a summon case.

to decide as to whether summons or warrant is to be to the accused person in the first instance at the stage of
issuing process. [Read Section 204]

We will discuss this classification in detail under Topic 5 and Topic 6 of our Course.
Difference between Summon Case and Warrant Case:

Summon Case [Section 2(w)] Warrant Case [Section 2(x)]

1. Meaning: a case relating to an offence, and not being 1. Meaning: a case relating to an offence punishable with
a warrant- case.[i.e. relating to an offence which is death,imprisonment for life or imprisonment for a term
punishable with imprisonment upto two years] exceeding two years.
2. One procedure for conducting the trial of Summon Cases 2. Two Types of procedure for conducting the trial of
[See, Sections 251-259] Warrant Case by Magistrate. These are:
(i) Trial of Warrant Cases instituted on Police Report
[Sections 238 – 243, 248-250]
(ii) Trial of Warrant Cases instituted otherwise than on Police
Report [Sections 244 –247, 248-250]
3. Framing of Charge not necessary. [Section 251] 3. It is mandatory to frame charge.
4. Summon shall be issued [Section 204(1) (a)]. 4. Either warrant or summon may be issued [Section 204(1)
(b)]
5. Trial of Summons Cases can be converted into trial of 5. Trial of Warrant cases cannot be converted into Summon
warrant cases. [Section 259] Cases.
6. Consequence of non-appearance of complainant - 6. Consequence of non-appearance of complainant - In
Magistrate may acquit the accused. some case Magistrate may discharge the accused before
framing of charge.
Meaning of Inquiry and Investigation:
Let us now discuss the meaning of Inquiry and Investigation and the differnce between these two.

According to Section 2 (g) “inquiry” means every inquiry, other than a trial, conducted under this Code by a Magistrate or
Court

According to Section 2(h) defines ‘investigation’ includes all the procedings under this Code for the collection of evidence
conducted by a police officer or by an person (other than a Magistrate) who is authorised by a Magistrate in this behalf.

Therefore,
purpose of investigation is collection of evidence. It is not judicial proceeding.
Investigation is conducted by (i) a police officer or (ii) by any person (other than a Magistrate) who is authorised by a
Magistrate in this behalf.
Differences between Inquiry and Investigation

Inquiry [Section 2(g)] Investigation [Section 2(h)]

1. Meaning: every inquiry, other than a trial, conducted 1. Meaning: includes all the proceedings under this Code
under this Code by a Magistrate or Court. for the collection of evidence conducted by a police officer
or by any person (other than a Magistrate) who is
authorised by a Magistrate in this behalf;
2. Always conducted by Magistrate or Court. 2. Conducted by Police officer or by any person (other than a
Magistrate) who is authorised by a Magistrate in this behalf
3. Object of Inquiry is to find out if there is a prima facie 3. Object of investigation is collection of evidence.
case against the accused person.
4. Judicial Proceeding. 4. Not a Judicial Proceeding.
Differences between Inquiry and Trial:

Inquiry Trial
1. Defined under Section 2(g). 1. Not defined under the Code.
2. Meaning: every inquiry, other than a trial, conducted under 2. Trial may be said to be a judicial proceeding which ends
this Code by a Magistrate or Court. either in conviction or acquittal of accused.
3. Object: to find out if there is a prima facie case against the 3. Conducted by Magistrate or Court with a view to find out
accused person. whether the accused is actually guilty of the offences
charged.
4. It is Conducted before the stage of framing of charge 4. It commences after the framing of charge

It includes all the steps which a criminal court adopts

subsequent to the framing of the charge and until the
pronouncement of judgment of conviction or acquittal.
Other Definitions:

Meaning of Complaint: According to Section 2 (d) “complaint” means any allegation made orally or in writing to a
Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has
committed an offence, but does not include a police report.

Explanation- A report made by a police officer in a case which discloses, after investigation, the commission of a
non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be
deemed to be the complainant;

Meaning of Metropolitan Area: Accroding to Section 2 (k) “metropolitan area” means the area declared, or deemed to be
declared, under section, to be a metropolitan area. [Read this definition with Section 8 of the Code]

Meaning of Offence: According to Section 2 (n) “offence” means any act or omission made punishable by any law for the
time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle-
trespass Act, 1871 (1 of 1871 ). [Also read the definitions of 'Offence under Section of Indian Penal Code and General
Clauses Act]
Meaning of Police Station: According to Section 2 (s) “police station” means any post or place declared generally or specially
by the State Government, to be a police station, and includes any local area specified by the State Government in this behalf.

Meaning of Officer in Charge of Police Station: According to Section 2 (o) “officer in charge of a police station” includes,
when the officer in charge of the police station is absent from the station house or unable from illness or other cause to
perform his duties, the police officer present at the station- house who is next in rank to such officer and is above the rank of
constable or, when the State Government so directs, any other police officer so present.

Meaning of Police Report: According to Section 2 (r) “police report” means a report forwarded by a police officer to
Magistrate under section (2) of section 173.

Meaning of Victim: According to Section 2 (wa) “victim” means a person who has suffered any loss or injury caused by
reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her
guardian or legal heir.

Note: According to Section 2 (y) words and expressions used herein and not defined but defined in the Indian Penal Code (45 of
1860) have the meanings respectively assigned to them in that Code. [This section is bridge between Cr.P.C and Indian Penal
Code.]
 Funtionaries & Stakeholders in the Criminal Justice Administration

Criminal Justice Administration - Functionaries:

1. The Police:

The police force is an important instrument for the prevention, detection and investigation of crime.

Established by every State Government under the Police Act, 1861 or under an enactment replacing the Act of 1861.

Powers of Police under CrPC: (i) Power to make arrest, search and seizure (ii) investigation (iii) prevention of crime etc.

2. The Prosecutors

As a general rule, State takes upon itself the responsibility of prosecuting the accused person/s.

The Government (both State and Central) have powers to appoint prosecutors for conducting prosecutions on their behalf
in the High Courts, Sessions Court and Court of Magistrate

For details on the Office of Public Prosecutor - Read Section 24 of CrPC

For details on the Office of Assistant Public Prosecutor - Read Section 25 of CrPC
Some Important Points on Prosecutor/s:

In every Trial before a Sessions Court - Prosecution shall be conducted by the Public Prosecutor [Section 225 of CrPC]

No specific provision in the Code in respect of the conduct of of Prosecution in the Court of Magistrate. However, in
practice in respect of trial by the Court of Magistrate of case initiated on Police Report - Prosecution is conducted by the
Assistant Public Prosecutor [different states use different designations for this Office].

In respect of trial by the Court of Magistrate of cases initiated on a private complaint - Prosecution is either conducted by
the Complainant himself or by his duly authorised counsel or State appointed prosecutor if the case involves public interest

You may also read Sections 301 and 302 of CrPC.

Duty of Prosecutor in a criminal trial is not merely to secure conviction, but to place before the court evidences, whether
they may be in favour or against the accused and to leave it to the court to decide upon all such evidences whether th
accused is or is not guilty of the alleged offence.
3. The Defence Counsel
Under Indian Criminal Justice System, the State uses its investigation agencies and prosecutors would prosecute the
accused, who, in turn, will employ an equally competent defence counsel to challenge the evidence of the Prosecution.

Therefore both Constitution of India and CrPC confer on the accused person a right to consult and to be defended by a
legal practitioner of his choice. [See Article 22(1) of the Constitution and Section 303 of CrPC]

But an indigent accused stands the risk of denial of fair trial when he does not have the equal access to the legal resources
available to the other side. The Code has attempted to provide a solution to this problem under Section 304 which reads
thus:

Section 304(1): Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it
appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his
defence at the expense of the State.

Section 304(3): Has empowered the State Government to extend the application of the above provision to any class of trials
before other courts in the State.

Also Supreme Court has declared Right to Free Legal Aid to an accused person who is unable to engage a lawyer on
account of reasons such as poverty, indigence etc. as a Fundamental Right under Article 21 of the Constitution. [ See
Khatri v. State of Bihar, (1981) 1 SCC 627; Suk Das v. State of Arunachal Pradesh, (1988) 2 SCC 401]

The provisions of Legal Services Authorities Act enable the judiciary to provide legal representation to indigent accused.
4. The Courts:
Following are the Courts in Criminal Justice System in India:
I. Supreme Court: CrPC makes provision of appeal to Supreme Court under certain circumstances (Ss. 374 & 379) and also
enables the Court to transfer cases and appeals in the interest of justice (Section 406).
II. High Court: CrPC gives various powers to High Court including those related to reference, revision, appeal, transfer of
cases and inherent power of High Courtto prevent the abuse of the process of any court or to secure ends to justice.

III. Sessions Court - Courts of Sessions Judge, Additional & Assistant Sessions Judge (Relevant Provisions - Section 9 and 10
of CrPC)
The State is to establish a Sessions Court for every sessions division, which is presided over by Sessions Judge appointed by
the High Court.

The High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in the
Sessions Court.

IV. Courts of Chief Judicial Magistrate (CJM) & Additonal CJM (Relevant Provision - Section 12)
High Court appoints a Judicial Magistrate of the First Class to be the Chief Judicial Magistrate (CJM) of the District.
Funtion of CJM: To guide, supervise and control other Judicial Magistrates. (See Section 15(2) of CrPC)

High Court may also appoint any Judicial Magistrate of First Class to be an Additional CJM, and such a Magistrate shall
have all or any of the powers of a CJM as the High Court may direct.

For any sub-division of a district, the High Court may appoint any Judicial Magistrate of First Class as the Sub-Divisional
Magistrate, having power to supervise and control the work of Judicial Magistrates in that sub-division.
 Every CJM shall be subordinate to the Sessions Judge; and every other Judicial Magistrates shall, subject to the general
control of the Sessions Judge, be subordinate to the Chief Judicial Magistrate. [See Section 15(1) of CrPC]

V. Courts of Judicial Magistrate (Relevant Provision - Sections 11 of CrPC)

In every district (not being a Metropolitan Area), the State Government, may after consultation with the High Court,
establish as many Courts of Judicial Magistrate of the First Class and of the Second Class as it may consider necessary.

The Presiding Officer of such Courts shall be appointed by the High Court.

VI. Courts of Chief Metropolitan Magistrate (CMM) & Additional CMM (Relevant Provisions - Sections 17 and 19 of CrPC)

In every Metropolitan Area (For definition of Metropolitan Areas - See Section 8 of Crpc), the High Court shall appoint a
Metropolitan Magistrate as Chief Metropolitan Magistrate.

High Court may also appoint Addidional CMM, and such Magistrates shall have generally all the powers of CMM.

The CMM and every Additional CMM shall be subordinate to the Sessions Judge; and every other Metropolitan
Meagistrate shall subject to the general control of the Sessions Judge, be subordinate to the CMM. (See Section 19 of
CrPC)
VII. Courts of Metropolitan Magistrates (Relevant Provision - Section 16)

In every Metropolitan area, the State Government may, after consultation with the High Court, estblish Courts of
Metropolitan Magistrates, at such places and in such numbers as it thinks necessary.

The presiding officer of Courts of Metropolitan Magistrates shall be appointed by High Court.

VIII. Special Judicial & Metropoltan Magistrate:

A. Special Judicial Magistrate - SJM (Section 13):
The High Court may, if requested by the Central or State Government so to do, confer upon any person who holds or has
held any post under the Government, all or any of the powers conferred or conferrable by or under this Code on a Judicial
Magistrate of the first class or of the second class, in respect to particular cases or to a particular classes of cases in any
local area not being a metropolitan area. Such Magistrate shall be called Special Judicial Magistrate.

SJM shall be appointed for such term, not exceeding one year at a time.

B. Special Metropolitan Magistrate - SMM (Section 17):

The High Court may, if requested by the Central or State Government so to do, confer upon any person who holds or has
held any post under the Government, all or any of the powers conferred or conferrable by or under this Code on a
Metropolitan Magistrate, in respect to particular cases or to a particular classes of cases in any metropolitan area within its
local jurisdiction. Such Magistrate shall be called Special Metropolitan Magistrate.

SMM shall be appointed for such term, not exceeding one year at a time.
IX Executive Magistrates (Section 20 of CrPC)

In every district and in every metropolitan area, the State Government may appoint as many persons as it thinks fit to be
Executive Magistrates and shall appoint one of them to be the District Magistrate.

The State Government may appoint any Executive Magistrate to be an Additional District Magistrate, and such Magistrate
shall have such of the powers of a District Magistrate under this Code or under any other law for the time being in force as
may be directed by the State Government.

Special Executive Magistrates (Section 21 of CrPC)

The State Government may appoint, for such term as it may think fit, Executive Magistrates, to be known as Special
Executive Magistrates, for particular areas or for the performance of particular functions and confer on such Special
Executive Magistrates such of the powers as are conferrable under this Code on Executive Magistrates, as it may deem fit

Subordination of Executive Magistrates (Section 23 of CrPC)

All Executive Magistrates, other than the Additional District Magistrate, shall be subordinate to the District Magistrate and
every Executive Magistrate (other than the Sub-divisional Magistrate) exercising powers in a sub-division shall also be
subordinate to the Sub-divisional Magistrate, subject, however, to the general control of the District Magistrate.
5. Prison Authorities and Correctional Services Personnel:

CrPC does not make specific provisions for the creation, wroking and control of Prison system and authorities needed for
the purpose of execution of the sentence passed by criminal courts.

Creation, working and control of Prison system and authorities depends upon the laws like the Prisons Act, 1894, Prisoners
Act, 1900 etc.

Regarding the machinary needed for correctional services, CrPC entirely depends upon laws like the Probation of
Offenders Act, 1958 etc.
Stakeholders in the Criminal Justice Administration
1. State :
The State discharges the obligation to protect life, liberty and property of the citizens by taking suitable preventive and
punitive measures which also serve the object of preventing private retribution so essential for maintenance of peace and
law and order in the society. Main functions of State are to protect the life and liberty of its subjects and to punish culprits.
State has also responsibilities to protect sovereignty and integrity of nation. Commission of crime is treated crime against
State. State establishes a machinery to administer criminal justice according to law made by State.

2. Victim:
In the initial stage whole concentration of criminal law justice system was on accused. Later on new concept i.e. right/s of
victim was gradually recognized. In 2009 several amendments were made to give some rights and relieves in favour of
victim.
For example: Section 2(wa) (definition of victim) section 357A (Victim Compensation Scheme), Section 357 C (Treatment of
victims of sexual offences), Section 372, Provided (Right of victim to appeal in certain cases). Under section 357A District
Legal Services Authority or State Legal Services Authority is authorised to decide quantum of compensation.

3. Accused:
The well recognised fundamental principles of criminal jurisprudence are ‘presumption of innocence and right to silence of
the accused’, ‘burden of proof on the Prosecution’ and the ‘right to fair trial’. Several rights for accused have also been
prescribed in Constitution of India especially Articles 20, 21 and 22. Legal aid to the accused at the expense of State is also
provided in certain cases (Article 39A of the Constitution, Section 304 of Cr.P.C.and M.H. Hoscot v. State of Maharashtra
(1978) - Right to free legal aid is fundamental right under article 21 of the constitution of India.) In the case of Hussainara
Khatoon (No.1) v. State of Bihar (1979) Supreme Court held that Right to Speedy Trial is fundamental right under Article
21.
4. Witnesses:
According to Bentham, “Witnesses are the eyes and ears of justice”.

In the case of Mrs. Neelam Katara v. Union of India (2003), Delhi High Court after observing laws of several countries laid
down exhaustive guidelines for protection of witnesses.

In the case of Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors. (2006) Supreme Court observed, “Fair trial
means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is
eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The
failure to hear material witnesses is certainly denial of fair trial.”

Do we have a law for witness protection in India?

5. Society & Members of the General Public:

Society has huge shareholders in criminal justice system.

Fair criminal justice systems build up confidence in society and other member instead of taking revenge and taking law in
his own hands take recourse of State sponsored criminal justice system.

Terrorist attacks, economic offences, food adulteration cases effect members of the General Public.
Classes of Criminal Courts under Criminal Procedure Code:

According to Section 6 of the Code besides the High Courts and the Courts constituted under any law,
other than this Code, there shall be, in every State, the following classes of Criminal Courts, namely:—

(i) Courts of Session;

(ii) Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrates;
(iii) Judicial Magistrates of the second class; and
(iv) Executive Magistrates.

Territorial Division for the Purpose of Criminal Justice Administration:

According to Section 7 of the Code:

(1) Every State shall be a sessions division or shall consist of sessions divisions; and every sessions
division shall, for the purposes of this Code, be a district or consist of districts: Provided that every
metropolitan area shall, for the said purposes, be a separate sessions division and district.

(2) The State Government may, after consultation with the High Court, alter the limits or the number of
such divisions and districts.

(3) The State Government may, after consultation with the High Court, divide any district into
subdivisions and may alter the limits or the number of such sub-divisions.

(4) The sessions divisions, districts and sub-divisions existing in a State at the commencement of this
Code, shall be deemed to have been formed under this section.

Question: Which is your Sessions Division? Is your sessions division consist of a district or districts?

- How many sub-divisions are there in your district?

- Can you identify the Courts of Session, Judicial Magistrates in your Sessions division?

- Can you identify the Judicial Magistrates (including Chief Judicial Magistrates) and Executive Magistrates
in your district?

Metropolitan areas— According to Section 8 of the Code:

(1) The State Government may, by notification, declare that, as from such date as may be specified in
the notification, any area in the State comprising a city or town whose population exceeds one million shall
be a metropolitan area for the purposes of this Code.

(2) As from the commencement of this Code, each of the Presidency-towns of Bombay, Calcutta and
Madras and the city of Ahmedabad shall be deemed to be declared under sub-section (1) to be a
metropolitan area.

(3) The State Government may, by notification, extend, reduce or alter the limits of a metropolitan area
but the reduction or alteration shall not be so made as to reduce the population of such area to less than
one million.
Hierarchy of Criminal Courts in India:
Relevant Provisions: Sections 6 to 19 of CrPC

Supreme Court

High Courts

Sessions Court

Court of Chief Judicial Magistrates Court of Chief

Metropolitan Mag. Court of Assistant Session Judge

Judicial Magistrate First Class Metropolitan Magistrate

(Special Judicial Magis. First Class) (Special Metropolitan Magistrate)
Judicial Magistrate Second Class/
Special Judicial Magistrate Second Class

Some
Sentences which the above-mentioned Criminal Courts are Empowered/Authorised to Pass under

Relevant Provisions: Sections 28 and 29 of CrPC, 1973.

Court Sentence Empowered/Authorised to Pass under

the Provisions of CrPC, 1973
High Court Any Sentence Authorised by Law [Section 28(1)]
Court of Session (including Court of Session Judge Any sentence authorised by law. Sentence of death
and Additional Session Judge is subject to confirmation of High Court u/s 368.
[Section 28(2)]
Court of Assistant Session Judge Imprisonment up to ten years or/and fine. [Section
28(3)]
Court of Chief Judicial Magistrate/ Court of Chief Imprisonment up to seven years or/and fine
Metropolitan Magistrate [Section 29(1) and 29(4)]
Judicial Magistrate First Class/ Court of Metropolitan Imprisonment up to three years or/and fine up to rs.
Magistrate 10,000. [Section 29(2) and 29(4)]
Court of Judicial Magistrate Second Class Imprisonment up to one year or/and fine up to rs.
5,000. [Section 29(3)]

Powers of High Court:

Note: It is inclusive and not an exhaustive enumeration of Powers of High Court under CrPC.

⮚ Under Section 9, High Court has power to appoint Session Judge, Additional Session Judge and
Assistant Session Judge.

⮚ Power to Confirm Death Sentence passed by Court of Session Judge/Additional Session Judge:
Punishment of death sentence passed by Session Judge / Additional Session Judge cannot be executed
unless it is confirmed by High Court under Section 368.

⮚ High Court may authorize Judicial Magistrate First Class (Section 260) and Judicial Magistrate Second
Class for summary trial.

⮚ Under section 438 High Court has power to grant anticipatory bail.
⮚ Power of High Court to hear and decide Appeals against the judgments of the subordinate criminal
courts

⮚ Inherent Power of High Court (Section 482): Only High Court has inherent power under section 482 of
Cr.P.C.

Duty of High Court: According to section 483 it is duty of High Court to exercise continuous
superintendence over Courts of Judicial Magistrates subordinate to it as to ensure that there is an
expeditious and proper disposal of cases by such Magistrates.

Power of Court of Session Judge:

⮚ All Assistant Sessions Judges, Chief Judicial Magistrate, the Chief Metropolitan Magistrate and
Additional Chief Metropolitan Magistrate and other Judicial Magistrates shall be subordinate to the
Sessions Judge.

⮚ Power to Make Rules (Section 10): The Sessions Judge may, from time to time, make rules consistent
with this Code, as to the distribution of business among such Assistant Sessions Judges.

⮚ Power under Section 409: A Sessions Judge may withdraw any case or appeal from, or recall any case
or appeal which he has made over to, any Assistant Sessions Judge or Chief Judicial Magistrate
subordinate to him.

⮚ Session Judge has also power to grant anticipatory bail (Section 438) and bail (Section 439).

⮚ Power to hear and Decide Appeals against the judgments of the subordinate criminal courts.
 Law Reating to First Information Report

We have already discussed that registration of FIR is one of the modes of crime reporting.

This term is not defined under the Code. [Is it used in any of the provisons of the Code?]

Meaning of FIR:
The information given under sub-section (1) of section 154 of the Code is commonly/Popularly known as First
Information Report (FIR). It is the ‘information’ that is received first in point of time

In other words, FIR is a report giving information of the commission of a cognizable crime which may be made by the
victim or by any other person knowing about the commission of such an offence.

The registration of the FIR empowers the officer in-charge of the Police Station to commence investigation with respect to
the crime reported to him.

Object: Two fold object sought to be achieved by registreing the FIR:

“It has twin object- one, that the criminal process is set into motion and is well documented from the very start; and second,
that the earliest information received in relation to the commission of a cognizable offence is recorded so that there cannot be
any embellishment etc., later.” [Lalita Kumari v. State of U.P, (2014) 2 SCC 1]
 Essential Ingredients of FIR
There are following essential ingredients of FIR under section 154:

1. Information: There must be information.

2. Cognizable Offence: That information must be related to commission of cognizable offence.

3. Information made to Officer in charge of a police station and woman police officer or any woman officer: It must be
made to the officer in charge of a police station.
Note: If the informant is the victim (woman) of acid attack, rape etc. then such information shall be recorded, by a woman
police officer or any woman officer. If the victim is temporarily or permanently mentally or physically disabled, then such
information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a
convenient place of such person’s choice, in the presence of an interpreter or a special educator, as the case may be. The
recording of such information shall be videographed. [Inserted by the Criminal Law (Amendment) Act, 2013; some changes
were made by the Crim. Law (Amendment) Act, 2018; For details read Proviso to Section 154(1)]

4. Oral or written: Such information may be given either orally or written form. If it is given orally to an officer in charge of a
police station, shall be reduced to writing by him or under his direction, and be read over to the informant. [S. 154(1)]

5. Signature of informant: Every such information, whether given in writing or reduced to writing (oral information) as
aforesaid, shall be signed by the person giving it (informant), and [S. 154(1)]

6. Entering of substance in book: The substance the information shall be entered in a book to be kept by such officer in such
form as the State Government may prescribe in this behalf. ‘General Diary’ has been prescribed for this purpose.
 Number of copies of FIR and Entering of its substance in ‘General Diary’

Every State has made its own rules/regulations to answer the issue of number of copies and mentioning substance of FIR in
'General Diary'.

Lets discuss Uttar Pradesh Police Regulation on this point:

According to Para 97 of this regulation FIR must be prepared in ‘triplicate’ (Three copies). Informant must sign all three copies
or if he cannot write he must put his thumb impression. Officer in charge of police station must sign and seal all three copies
also. These copies are distributed according to sections 157, 158 of Cr.P.C. and Para 97 Uttar Pradesh Police Regulations in
following manner -
(i) Original (First) Copy to Magistrate: According to section 157, officer in charge of police station empowered to investigate
under section 156 shall forthwith send a report of FIR to a Magistrate who is empowered to take cognizance of such offence
upon a police report.
Original copy is sent through SP to Magistrate having jurisdiction. [Read Section 158 of CrPC]

(ii) Second Copy to ‘Informant’: Second copy shall be given to the informant free of cost.

(iii) Third Copy for Police Station: Third copy remains in book.
According to Para 99 of Uttar Pradesh Regulation as soon as information has been written in First Information Book, the
substance of FIR must be written in ‘General Diary’.

Note: Each FIR has a unique annual number given to it which is maintained in FIR book on an annual basis. To keep a strict
control and track over the registration of FIRs by the supervisory police officers and by the courts, wherever necessary.
In Madhu Bala v. Suresh Kumar (1997) 8 SCC 476, the Supreme Court has pointed out following procedure relating to F.I.R.:

“First, Registration of FIR is to be done in a book called ‘FIR book’ or ‘FIR Register’, and secondly, 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.”

Q. Whether an entry in General Diary may be treated as FIR?

Contents of FIR

In the case of G. S. Naidu v. State of A.P. and Ors. (Dec. 15, 2003, SC) Hon’ble Justice Arijit Pasayat said, “The FIR is not
supposed to be an encyclopedia of the factors concerning the crime, yet there must be some definite information of the crime.”

In the case of Ravi Kumar v. State of Punjab (SC, 2005) Hon’ble Justice Arijit Pasayat said “It is not the requirement of law that
the minutest details be recorded in the FIR lodged immediately after the occurrence.”
Issue: Whether reasonableness or credibility of any information relating to cognizable offence is a condition precedent for
registration of an FIR.

Supreme Court discussed this issue in detail in Bhajan Lal v. State of Haryana, 1992 Cri.LJ 527 (SC) and summed up the
discussion in the following words:

“The non qualification of the word "information" in Section 154(1) of the Code is for the reason that the police officer should
not refuse to record any information relating to the commission of a cognizable offence 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 the registration of a case.”

An officer in charge of police station cannot refuse to register the FIR on the ground that the information is not relevant or
credible. [See, Ramesh Kumari v. State (NCT of Delhi), (2006) 2 SCC 667]

Therefore in the words of Supreme Court in Prakash Singh Badal v. State of Punjab, JT 2007(1) SC 89, it can failry be
concluded that “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.”
 Kinds of FIR

FIR can be divided on the basis of informant or authorities (on whose information or direction FIR is registered) and relevant
statutory provisions. These classification are as follows:

A. Kinds of FIR on the Basis of Informant (including Police Authorities or Court)

Victim Accused? Third Person Police Authority (Suo Motto) Court

(S. 154) (S. 154) (S.154) (S. 157/ S.36) [S.156(3)/S.482(HC)]

B. Kinds of FIR on the Basis of Jurisdiction of Police Station

Jurisdictional FIR - S.154 Zero FIR S. 154 (Free Jurisdictional FIR)

Zero FIR: Zero FIR can be registered by any Officer in charge of Police Station even he has no jurisdiction for investigation of
the offence. In such FIR serial number is put Zero and such FIR is forwarded to competent investigating police station.

Q. Give some illustrative examples of registration of Zero FIR that you may have read on media plaforms.
Supreme Court on Kinds of FIR:

In the case of Lalita Kumari v. Govt. of U.P. [2013(13) SCALE 559] Supreme Court said that the Code contemplates two kinds of
FIRs, namely; (i) FIR under section 154 (1) and (ii)FIR under section 157(1).

The duly signed FIR under Section 154(1) is by the informant to the concerned officer at the police station. The second kind of
FIR is one which is registered by the police itself on any information received or other than by way of an informant [under
Section 157(1)] and even this information has to be duly recorded and the copy should be sent to the Magistrate forthwith.

Territorial Jurisdictional of Police Station and FIR: Every police station has own territorial jurisdiction. However, section 154
does not say anything regarding territorial jurisdiction.
If cognizable offence is committed within territorial jurisdiction then FIR is registered and it contains date, time and place of
occurrence, serial number etc.
Issue: Whether telephonic information if reduced to writing, can be treated as F.I.R.

This issue has been answered by the Supreme Court in the following cases:

(i) In Ramsingh Bavaji Jadeja v. State of Gujarat, (1994) 2 SCC 685, the Court has held thus:
“If the telephonic message is cryptic in nature and the officer in charge proceeds to the place of occurrence on the basis of that
information to find out the details of the nature of the offence itself, then it cannot be said that the information, which had
been received by him on telephone, shall be deemed to be First Information Report. The object and purpose of giving such
telephonic message is not to lodge the First Information Report, but to request the officer in charge of the police station to
reach the place of occurrence.”

“On the other hand, if the information given on telephone is not cryptic and on the basis of that information, the officer in
charge, is prima facie satisfied about the commission of a cognizable offence and he proceeds from the police station, after
recording such information, to investigate such offence then that piece of information will constitute F.I.R.” [Similar view shared
in State of A.P. v. V.V. Panduranga Rao, (2009) 15 SCC 2011].

(ii) In Tapinder Singh v. State of Punjab, (1970) 2 SCC 113, the Supreme Court ruled that:
where an anonymous telephonic message neither discloses names of the accused nor the commission of a cognizable offence, it
cannot be treated as FIR. The mere fact that this information was the first in point of time does not by itself clothe it with the
character of First Information Report.

Issue: Whteher information received via social media platforms, if reduced in writing, can be treated as FIR
 Delay in lodging FIR and its Implication

Information under section 154 must be given at the earliest possible opportunity after the commission of the offence.
Prompt lodging of FIR presumes fairness in the administration of criminal justice.

Immediate lodging of FIR facilitates swift investigation and sometimes even prevention of the crime and hence effectuates
the regime of law. It also leads to less manipulation in criminal cases and lessens incidents of ante-dates FIR or deliberately
delayed FIR
Note: In Lalita Kumari Case, Supreme Court discussed advantages of immediate registration of FIR which we have aready
discussed while answering the question on importance of reporting of cimes.
Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought and much deliberation.

Issue: Whether delay per se in lodging an FIR effect credibility of FIR and is a ground to disbelieve prosecution story

Delay in lodging FIR shall not affect credibility of FIR and also is not a ground to disbelieve prosecution case, if there are
justified reasons to explain such delay. In case of State of Himachal Pradesh v. Gyan Chand (2001) Supreme Court
observed:
“Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same
solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to
search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails
to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the
delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by
itself be a ground for disbelieving and discarding the entire prosecution case.”
Issue: How much weightage should be given to to the factor of delay in lodging FIR in sexual offences?

Courts are not in favour of giving weightage to the factor of delay in lodging FIR in sexual offences.

Supreme Court has consistently appealed the courts to display a greater sense of responsibility and ‘to be more sensitive’
in handling cases of sexual assault on women, particularly of tender age and children. [See State of Punjab v. Ramdev
Singh, AIR 2004 SC 1290]
 Mandatory Registration of FIR and Exceptions to it

Issue 1: Whether it is obligatory for the police to register FIR on information given by an informant or officer incharge has
discretion of conducting some kind of preliminary enquiry before registering FIR.
Issue 2: Are there any exceptions to Mandatory Registration of FIR?
We will discuss both the issues relating to Mandatory registration of FIR in detail with the help of the decision of Supreme
Court in Lalita Kumari Case.

Special Rules of mandatory reporting for select offences:

The number of crimes against women and children has always been shown less than their actual number in the Crime Record
statistics. Mainly beacuse of two reasons: First, less number of reporting of these crimes and second, reluctance on the part
of the authorities to record these crimes. To deal with the problem of non-reporting of crimes, following provisions are
introduced in several criminal statutes:

Section 166A, clause (c) of the Indian Penal Code confers a positive obligation on a police officer and lays down that if a
police officer fails to record any information given to him under Section 154(1) of the Code in relation to offences of acid
attack, sexual harassment or rape, he shall be punished with rigorous imprisonment for a term which shall not be less than
six months but may extend to two years and shall also be liable to fine.The intention of the legislature in enacting section
166A(c) by the Criminal Law (Amendment) Act, 2013 is to tighten the already existing provisions to provide enhanced
safeguards to women.

Non-reporting of commission of an offence falling under sections 19(1) or 20 of the Protection of Children against Sexual
Offences Act, 2012 (POCSO) will invite criminal sanction of imprisonment up to one year and fine under section 21 of the
Act.
Issue: What are the remedies available to an aggrieved person, if the police officer in charge of a police station refuses to
record the information disclosing the commission of cognizable offence.

We will discuss this issue in detail with the help of the decision of Supreme Court in Sakiri Vasu v. State of U.P., (2008) 2 SCC
409, wherein the court has discussed the remedies available to an aggrieved person, if the police officer in charge of a police
station refuses to register his FIR.
Issue relating to Validity of Second FIR:
Where more information than one are given to a police officer in respect of the same incident involving one or more than one
cognizable offences, whether the police officer should register both the information separately or he may record any one of the
information as FIR.

The Supreme Court has evolved the ‘test of sameness’ and ‘consequence test’ to decide the validity of the second FIR.
(i) In Ram Lal Narang v. State (Delhi Administration) [(1979) 2 SCC 322], the Supreme Court laid down the ‘test of sameness’
to decide this issue. In this case, It was held that the two FIR’s denoted separate conspiracies and separate incidents, wherein
the first FIR reveals a smaller conspiracy, the second FIR exposed a larger conspiracy enlarging the ramifications of offences
and scope of the FIR. In such a situation the larger conspiracy cannot be said to be part of the FIR registered first therefore,
the second FIR is permissible.

(ii) In T.T. Antony v. State of Kerala, (2001) 6 SCC 181; the Supreme Court found that the facts of both the FIR’s were similar,
against similar individuals and for similar offences; therefore they could be stated to be in the course of the same transaction.
Relying on the ratio of Ram Lal Narang case, the court quashed the second FIR.

(iii) In Amitbhai Anilchandra Shah v. CBI, (2013)6 SCC3 48 the Supreme Court applied the 'test of consequence' to determine
whether a second FIR was permissible or not. The Court held thus:
“If the offence forming part of the second FIR arises as a consequence of the offence alleged in the first FIR then offences
covered by both the FIRs are the same and, accordingly, the second FIR will be impermissible in law. In other words, the
offences covered in both the FIRs shall have to be treated as part of the first FIR. There cannot be second FIR in respect of the
same offence/event because whenever any further information is received by the investigating agency, it is always in
furtherance of the first FIR. Therefore, Filing of the second FIR and fresh charge sheet in such cases is violative of fundamental
rights under Article 14, 20 and 21 of the Constitution.”
 Evidentiary Value of FIR

Issue: What is the evidentiary value of FIR in a criminal trial?

In Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119 the Supreme Court answered ths question in the following words:

Section 154 of the Code of Criminal Procedure provides for the recording of the first information. The evidentiary value of FIR
under the provisions of the Indian Evidence Act is as follows:

(1) The information report as such is not substantive evidence.

(2) It may be used to corroborate the informant under Section 157 of the Evidence Act or to contradict him under Section
145 of the Act, if the informant is called as a witness.

(3) If the first information is given by the accused himself, the fact of his giving the information is admissible against him as
evidence of his conduct under Section 8 of the Evidence Act.

(4) If the information is a non-confessional statement, it is admissible against the accused as an admission under Section 21
of the Evidence Act and is relevant.

(5) A confessional first information report to a police officer cannot be used against the accused in view of Section 25 of the
Evidence Act
Note: FIR can also be treated as res gestae and therefore relevant under section 6 of the Indian Evidence Act.
 It has been held time and again that the FIR is not a substantive piece of evidence and can only be used to corroborate the
statement of the maker under Section 157 of the Indian Evidence Act, 1872 or to contradict him under Section 145 of that
Act. It can neither be used as evidence against the maker at the trial if he himself becomes an accused nor to corroborate
or contradict other witnesses. [ Justice Arijit Pasayat in Ravi Kumar v. State of Punjab (SC, March, 2005)]

However there is an exception to the general rule that the FIR is not a substantive piece of evidence. This exception can be
illustrated with the help of decision of Allahabad High Court in Pancham Yadav v. State of U.P. (All. H.C. 1993), wherein the
Information given by the victim was recorded as FIR. Later on he died. This FIR was also treated as a dying declaration
under section 32(1) of Indian Evidence Act, 1872.
Therefore, this is the only circumstances when FIR becomes substantive piece of evidence.
Who Lodged the Evidentiary Value of FIR
FIR
1. FIR by Victim Relevant u/s Relevant u/s 6 Relevant u/s 8 Relevant u/s 145 Relevant u/s 157
32 of IEA (As of IEA as Res of IEA of IEA of IEA
a Substantive gestae
Piece of
Evidence)
2. FIR by Third Relevant u/s 6 Relevant u/s 145 Relevant u/s 157
Person (if called as of IEA as Res of IEA of IEA
gestae
witness at the Trial
3. FIR by Accused Relevant u/s Relevant u/s 8 Relevant u/s 157
21 of IEA. of IEA of IEA (Do
connect it with
Section 25 of
IEA)

Note: If FIR is filed by the Accused and he appears as a Witness at the time of Trial, then the FIR can be used as an
evidence as per the provisions of Sections 145 and 157 of the Indian Evidence Act. [See Section 315 of CrPC on this point]
 Quashing of FIR

High Court is empowered to quash an FIR (also a complaint as well) to protect the accused from malicious prosecution. For
example, when FIR is instituted with mala-fide intention to harass the accused person, the court can quash the same for the
ends of justice.

FIR can be quashed by the High Court in the exercise of inherent power vested in it under Section 482 of CrPC. (Such power
can also be exercised on a petition filed under the provisions of Article 226 of the Constitution of India read with Section
482 of CrPC)

Therefore, Once an FIR is registered, the accused person can approach the High Court under Section 482 CrPC or under Article
226 of the Constitution or Article 226 r/w Section 482 CrPC for quashing of the FIR, [See State of Haryana v. Bhajan Lal, 1992
Supp (1) SCC 335]

The power of High to quash an FIR are to be exercised sparingly and that too, in rare and appropriate cases and in extreme
circumstances to prevent abuse of process of law or otherwise to secure the ends of justice.

Question: If X files an FIR against Y with a malafide intention to harass him. Y approaches you for legal advice. What legal
remedy/remedies are available to Y under law?
Cases in which Power to Quash an FIR (also a complaint) can be exercised:
Supreme Court in several cases has observed that it may not be possible to lay down any precise, clearly defined and
sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad cases where
power to quash an FIR should be exercised.

However, in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, the Supreme Court gave a illustrative list of case in
which High Court can exercise its extraordinary power to quash an FIR (or a complaint). These are as follows: [Para 102]

(1) Where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their
entirety do not prima facie constitute any offence or make out a case against the accused.
Note: Recently, this rule was reiterated by the Supreme Court in Arnab Manoranjan Goswami v. State of Maharashtra, AIR
2021 SC 1.

(2) Where the allegations in the FIR and other materials, if any, accompanying the FIR do not disclose a cognizable offence,
justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same
do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence,
no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of
the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a
criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific
provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.

For example, the High Court can quash the criminal proceeding which is carried on in breach of pre legal requirement Sections
195, 196, 197, 198 & 199 of the Code of Criminal Procedure.

(7) Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted
with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal
grudge.

Note: The Court has clarified that the said parameters or guidelines are not exhaustive but only illustrative. Nevertheless, it
throws light on the circumstances and situations where the Court's inherent power can be exercised.
 Topic 2: Initiation of Criminal Case

It is advisable to read the following provisions of CrPC before starting the discussion on this topic:

Definitions given under Sections 2(c), Section 2(l), Section 2(d) and Section 2(h)
Section 154:
Section 155:

Note: Section 156, Section 157, Section 173, Section 190, Section 200, Section 202 and Section
204 also relevant but there is no need to study these sections in detail as we will discuss these in
detail under Topics 3 and 5 of the syllabus)
Section
In our lectures on this topic, we will be answering the following questions. Lets start our discussion

Q.1 What is the importance/relevance of crime reporting?

Discussion on Q.1:
⮚ Every criminal act may not reach the formal criminal justice system because of reasons relating
to poverty, illiteracy and lack of awareness of victims. [Can you point out other reasons for
non-reporting of crimes in India?]

⮚ The crimes which get reported come to formal criminal justice system and also reflected in the
crime record statistics.

Q Which government agency is responsible for collecting and analysing crime data of the crimes as
defined under the Indian Penal Code, 1860 and other Special and Local Laws? Also name its
flagship publications.

- To answer this question please visit https://ncrb.gov.in/hi.

Importance of Reporting of Crimes:

⮚ Reporting of crime/criminal incident is the first step in the criminal adjudication process.

⮚ By reporting the victim/informant brings the crime into the notice of Police/Magistrate which
gives opportunity to investigating agencies/criminal courts to investigate or conduct an inquiry,
apprehend the accused and bring him into the criminal adjudication system for final
determination of his guilt or innocence.

⮚ Reduces the chances of tampering or manipulation with evidence/s, prevents further commission
of crimes and strengthens rule of law.

In Lalita Kumari v. Govt. of U.P. (2014) 2 SCC 1, the Supreme Court has mentioned following
benefits of reporting of crimes:

a) It is the first step to 'access to justice' for a victim.

b) It upholds the ‘Rule of Law’ inasmuch as the ordinary person brings forth the commission of
a cognizable crime in the knowledge of the State.
c) It also facilitates swift investigation and sometimes even prevention of any further crime. In
both cases, it only effectuates the regime of law.

d) It leads to less manipulation in criminal cases and lessens incidents of 'ante dates' FIR or
deliberately delayed FIR.

Q.2: What are the Methods of Initiating a Criminal Case under the Code of Criminal
Procedure, 1973?

Discussion on Q.2:

1ST Method: Initiating a Criminal Case by Reporting of Crime

Read the following flow chart carefully to understand different modes/methods of Reporting of
Crimes under CrPC:
It is clear from the above flowchart that under the provisions of CrPC there are three modes of
Reporting of Crime and thereby initiating a criminal case. These are as follows:

1. By Lodging First Information Report disclosing commission of cognizable offence with

the police officer under section 154 of CrPC.

Legal Implication of Registration of FIR: According to section 157 of CrPC, immediately after
registration of FIR the Investigating officer is required to send forthwith a copy of the FIR to the
Judicial Magistrate empowered to take cognizance of the offence. The recording of information
triggers investigation by a police officer under section 156(1) as per the procedure of investigation
provided under section 157 without the order of the Magistrate. After completion of the investigation
if the IO is of this opinion that there is sufficient evidences to place the accused before a criminal
court for trial, he shall file police report (chargesheet) under section 173 of CrPC.

⮚ However, if the police decides to foreclose the investigation then they are required to inform
both the Magistrate and the informant as per section 157(2) of CrPC. Therefore, police is not
liable to start an investigation in every registered FIR on receiving information relating to
commission of a cognizable offence.

⮚ In other words, if it appears to the officer in charge of a police station that there is no sufficient
ground for conducting investigation, he can foreclose the investigation. It is evident from the
language of section 157(1) of the Code.[Read Section 157(1)]

2. By filing a criminal complaint before a Judicial Magistrate under section 200 read with
section 190(1)(a) of CrPC.

⮚ Any aggrieved person can directly approach the Illaka Judicial Magistrate and file the complaint
under section 200 read with section 190(1)(a) of CrPC. It is immaterial whether the complaint
is relating to cognizable or non-cognizable offence.

Legal Implication of Filing of Criminal Complaint: Upon receiving complaint, the Magistrate
may take any of the following two courses. He may

i) Either direct police to investigate as per section 156(3) of CrPC or conduct an inquiry.
Where he decides to proceed under section 156(3), he is required to record reasons for his decision.

⮚ Generally, where a complaint discloses a cognizable offence the Magistrate sends the complaint
to the police under section 156(3) for thorough investigation. The police will then investigate
and submit a chargesheet before Magistrate under section 173(2) of CrPC. If the Magistrate
takes cognizance on the police report under section 190(1)(b) of CrPC, the complaint case can
be said to have been converted into FIR case
OR
ii) Take cognizance of the offence under section 190(1)(a) and accordingly issue process under
section 204 of CrPC.
In other words, where Magistrate is satisfied with the substance of the complaint and takes steps
under section 200/202/204, he must be held to have taken the cognizance of the offence mentioned in
the complaint
3. By giving information as to Non-cognizable Offence to the Police.

Legal Implication: Where the information given to the police discloses commission of
Non-Cognizable offence, the police must proceed as per section 155 of CrPC by recording the
information and sending the informant to the competent Judicial Magistrate.

⮚ Investigation into non-cognizable offences is not the responsibility of the police unless otherwise
ordered by the Magistrate as per Section 155(2).

⮚ Section 155 requires the police officer: to enter the substance of the information relating to
commission of a non-cognizable offence in a book kept for this purpose and refer the informant
to the Magistrate.

⮚ Where a Magistrate orders investigation the police officer may exercise the same powers in
respect of the investigation, except the power to arrest without warrant, as an officer in charge of
a police station may exercise in a cognizable case.[See Section 155(2)]
Note: Where a case relates to two or more offences of which at least one is cognizable, the case shall
be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.

2ND Method: Suo Motto Initiation of Criminal Case:

Following are the modes in which the Police or Magistrate may initiate a criminal case suo
motto:

1. The police officer in-charge of a police station under Section 157(1) of CrPC have been
conferred the power to start suo-motto investigation of any cognizable offence.

⮚ A bare reading of section 157(1) suggests that FIR is not an indispensable requisite for the
investigation of a crime. The police officer may also proceed to investigate a crime if he has
reason to suspect the commission of an offence.

2. The Magistrate concerned under section 190(1)(c) of CrPC have also been conferred with the
power to take cognizance of any offence otherwise than on a criminal complaint or police report.
Therefore this provision suggests he may initiate a criminal case suo motto.
 Lalita Kumari v. Govt. of Uttar Pradesh
2008(11) SCALE 154

B N AGRAWAL AND G.S. SINGHVI, JJ.

ORDER

⮚ The grievance in the present writ petition is that the occurrence had taken place in the month of May
and, in that very month, on 11th May, 2008, the written report was submitted by the petitioner before
the Officer In-charge of the concerned Police Station, who sat tight over the matter. Thereafter, when
the Superintendent of Police was moved, a First Information Report (for short “F.I.R.”) was registered.
Even thereafter, steps were not taken either for apprehending the accused or recovery of the minor girl
child.

⮚ It is a matter of experience of one of us (B.N. Agrawal, J.) while acting as Judge of Patna High Court,
Chief Justice of Orissa High Court and Judge of this Court that in spite of law laid down by this Court,
the concerned police authorities do not register F.I.Rs unless some direction is given by the Chief
Judicial Magistrate or the High Court or this Court. Further experience shows that even after orders are
passed by the concerned courts for registration of the case, the police does not take the necessary
steps and when matters are brought to the notice of the Inspecting Judges of the High Court during the
course of inspection of Courts and Superintendents of Police are taken to task, then only F.I.Rs are
registered.

⮚ In large number of cases investigations do not commence even after registration of F.I.Rs and in case
like the present one, steps are not taken for recovery of the kidnapped person or apprehending the
accused person with reasonable despatch. At times it has been found that when harsh orders are
passed by the Members of the Judiciary in a State, the police becomes hostile to them; for instance in
Bihar when a bail petition filed by a police personnel, who was accused was rejected by a member of
Bihar Superior Judicial Service, he was assaulted in the Court room for which contempt proceeding
was initiated by Patna High Court and the erring police officials were convicted and sentenced to
suffer imprisonment. (Glimpse of Failed Police System)

⮚ On the other hand, there are innumerable cases that where the complainant is a practical person, F.I.Rs
are registered immediately, copies thereof are made over to the complainant on the same day,
investigation proceeds with supersonic jet speed, immediate steps are taken for apprehending the
accused and recovery of the kidnapped persons and the properties which were subject matter of theft
or dacoity. (Glimpse of an Excellent Police System)

In the case before us allegations have been made that the Station House Officer of the concerned Police
Station is pressurising the complainant to withdraw the complaint, which, if true, is a very disturbing state
of affairs. We do not know there may be innumerable such instances.

Order of the Court: In view of the above, we feel that it is high time to give directions to Governments of all
the States and Union Territories besides their Director Generals of Police/Commissioners of Police as the
case may be to the effect:
❖ that if steps are not taken for registration of F.I.Rs immediately and copies thereof are not made over
to the complainants, they may move the concerned Magistrates by filing complaint petitions to give
direction to the police to register case immediately upon receipt/production of copy of the orders and
make over copy of the F.I.Rs to the complainants, within twenty four hours of receipt/production of
copy of such orders.

❖ It may further give direction to take immediate steps for apprehending the accused persons and
recovery of kidnapped/abducted persons and properties which were subject matter of theft or dacoity.
❖ In case F.I.Rs are not registered within the aforementioned time, and/or aforementioned steps are not
taken by the police, the concerned Magistrate would be justified in initiating contempt proceeding
against such delinquent officers and punish them for violation of its orders if no sufficient cause is
shown and awarding stringent punishment like sentence of imprisonment against them inasmuch as
the Disciplinary Authority would be quite justified in initiating departmental proceeding and
suspending them in contemplation of the same.

Keeping in mind these facts, we are of the view that notices should be issued to Government of all the
States and Union Territories besides Director Generals of Police/Commissioners of Police as the case may
be. Issue notice to the Chief Secretaries of all the States and Union Territories and the Director Generals
of Police/Commissioners of Police, as the case may be, to show cause as to why aforesaid directions be
not given by this Court.

Notices may be sent to the parties by Fax and it should be mentioned therein that the order has been put
on the Website of the Supreme Court of India so that they may file response without loss of time.

Let the Registry place this order on the Website immediately on receipt of the file so that the concerned
authorities know about the same and that the person concerned may file response within the time granted
hereunder .

Three weeks' time is allowed to file response.

Place this matter on 8th August, 2008.

Lalita Kumari v. Govt. of Uttar Pradesh

2008(11) SCALE 157
B N AGRAWAL AND G.S. SINGHVI, JJ.

ORDER

1. By order dated 14th July, 2008, we issued notices to the Chief Secretaries of all the States and Union
Territories and Director Generals of Police / Commissioners of Police, as the case may be, to show cause as
to why the directions enumerated therein be not given by this Court. Notices were sent to the aforesaid
authorities by the Supreme Court Registry by fax and it was mentioned in the notices that the order has
been put on the website of the Supreme Court of India so that they may file responses without loss of time.
The order was put on the website of the Supreme Court of India, as directed by this Court.

2. It appears that notices have been served upon the Chief Secretaries of all the States and Union
Territories and all the Generals of Police / Commissioners of Police, as the case may be, but, in spite of
that, it is pathetic state of affairs that only two States, viz., States of Uttar Pradesh and Arunachal
Pradesh , have responded and the other States did not bother to file their responses. Some of them have
simply engaged their counsel, who are appearing in court, and, as usual, they have made prayer for time
to file responses.(you may laugh or smile if you want to either on our Bureaucracy or
Judiciary or Both. Your choice)

3. In spite of the order passed on 14th July, 2008, that we intend to give certain directions enumerated
therein, it is unfortunate that neither the Director Generals of Police / Commissioners of Police, as the case
may be, nor the Superintendents of Police has taken any steps by giving suitable directions to the officers
in-charge of the police stations. (Smile if you wish to on DGs and Commissioners. After all they
are very busy Officers)

In view of this, we direct the Chief Secretaries of all the States and Union Territories and Director Generals
of Police / Commissioners of Police, as the case may be, to see that the police officers posted in every
police station throughout the country should act in accordance with the order dated 14th July, 2008,
treating the proposed directions therein given by this Court to be the interim ones and, in case there is
any failure on the part of any police officer, the concerned authority shall take immediate action against
that officer.

4. In any view of the matter, we grant two weeks’ time by way of last chance to the Chief Secretaries
of all the States and Union Territories, except Chief Secretaries and Director Generals of Police of the States
of Uttar Pradesh and Arunachal Pradesh, as well as Directors Generals of Police / Commissioners of Police,
as the case may be, to file responses failing which they shall have to appear in court in-person (they will
start lining up from behind) on the next date fixed in this case. As all the States and Union Territories
are represented before this Court, it was not necessary for the Registry to communicate this order to the
Chief Secretaries or Directors Generals of Police / Commissioners of Police, as the case may be.
Nonetheless, the Registry is directed to communicate this order by fax as well to the Chief Secretaries of all
the States and Union Territories and all the Director Generals of Police / Commissioners of Police, as the
case may be,

5. Let order dated 14th July, 2008 and this order be put on the website of the Supreme Court of India
so that the people of India may know what directions have been given by this Court and they may take
appropriate steps in case of any inaction on the part of the concerned officer of the police station in
instituting a case and the Chief Judicial Magistrate / Chief Metropolitan Magistrate, as the case may be,
shall take action in a case of inaction upon filing of complaint petition and give direction to institute the
case within the time directed in the said order failing which the Chief Judicial Magistrate / Chief
Metropolitan Magistrate, as the case may be, shall not only initiate action against the delinquent police
officer but punish them suitably by sending them to jail, in case the cause shown is found to be
unsatisfactory. Apart from this, the Chief Judicial Magistrate / Chief Metropolitan Magistrate, as the case
may be, shall report the matter to the disciplinary authority at once by fax as well upon receipt of which
the disciplinary authority shall suspend the concerned police officer immediately in contemplation of
departmental proceeding.

Note: After this order the case walked around the Supreme Court for few years before it was referred to a
Constitution Bench for final decision - by a bench of 3 judges [on February 27, 2012]

The case was finally decided on 12 November, 2013 by the Constitution Bench [Bench: P Sathasivam, B.S.
Chauhan, Ranjana Prakash Desai, Ranjan Gogoi, S.A. Bobde] Now we will read the final decision of the case
authored by CJI P. Sathasivam.

Lalita Kumari v. Govt. of U.P.

 2013(13) SCALE 559

Bench: P Sathasivam, B.S. Chauhan, Ranjana Prakash Desai, Ranjan Gogoi, S.A. Bobde

P Sathasivam, CJI.:
Issue: 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?

2. 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.

3. A two-Judge Bench of this Court in, Lalita Kumari v. Government of Uttar Pradesh [(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.

4. Pursuant to the above directions, when the matter was heard by the very same Bench in Lalita
Kumari v. Government of Uttar Pradesh [(2008) 14 SCC 337] Mr. S.B. Upadhyay, learned senior counsel for
the petitioner, projected his claim that upon receipt of information by a police officer in-charge of a police
station disclosing a cognizable offence, it is imperative for him to register a case under Section 154 of the
Code and placed reliance upon two-Judge Bench decisions of this Court in State of Haryana v. Bhajan Lal
[1992 Supp (1) SCC 335], Ramesh Kumari v. State (NCT of Delhi) [(2006) 2 SCC 677] and Parkash Singh
Badal v. State of Punjab [(2007) 1 SCC 1].

On the other hand, Mr. Shekhar Naphade, learned senior counsel for the State of Maharashtra submitted
that an officer in-charge of a police station is not obliged under law, upon receipt of information disclosing
commission of a cognizable offence, to register a case rather the discretion lies with him, in appropriate
cases, to hold some sort of preliminary inquiry in relation to the veracity or otherwise of the accusations
made in the report. In support of his submission, he placed reliance upon two-Judge Bench decisions of this
Court in P. Sirajuddin v. State of Madras [(1970) 1 SCC 595], Shashikant v. Central Bureau of Investigation
[(2007) 1 SCC 630], and Rajinder Singh Katoch v. Chandigarh Admn. [(2007) 10 SCC 69]. In view of the
conflicting decisions of this Court on the issue, the said bench, vide order dated 16.09.2008, referred the
same to a larger bench.

Note: Interestingly the three judge Bench heard the matter after around 4 years in the
year 2012. [Imagine, 4 year is EQUIVALENT to one term of US presidency/ entire course of
B.Tech degree/ even the western world recovered from 2008 sub-prime crisis]
5. Ensuing compliance to the above direction, the matter pertaining to Lalita Kumari was heard by a
Bench of three-Judges in Lalita Kumari v. Government of Uttar Pradesh [(2012) 4 SCC 1] wherein, this
Court, after hearing various counsel representing Union of India, States and Union Territories and also after
adverting to all the conflicting decisions extensively, referred the matter to a Constitution Bench while
concluding as under:-

“97. We have carefully analysed various judgments delivered by this Court in the last several decades. We
clearly discern divergent judicial opinions of this Court on the main issue: whether under Section 154 CrPC,
a police officer is bound to register an FIR when a cognizable offence is made out or he (police officer) has
an option, discretion or latitude of conducting some kind of preliminary inquiry before registering the
FIR.

98. The learned counsel appearing for the Union of India and different States have expressed totally
divergent views even before this Court. This Court also carved out a special category in the case of medical
doctors in the aforementioned cases of Santosh Kumar and Suresh Gupta where preliminary inquiry had
been postulated before registering an FIR. Some counsel also submitted that the CBI Manual also
envisages some kind of preliminary inquiry before registering the FIR.

99. The issue which has arisen for consideration in these cases is of great public importance. In view of the
divergent opinions in a large number of cases decided by this Court, it has become extremely important to
have a clear enunciation of law and adjudication by a larger Bench of this Court for the benefit of all
concerned-the courts, the investigating agencies and the citizens.

Consequently, we request the Hon'ble the Chief Justice to refer these matters to a Constitution Bench of
at least five Judges of this Court for an authoritative judgment.”

6. Therefore, the only question before this Constitution Bench relates to the interpretation of
Section 154 of the Code and incidentally to consider Sections 156 and 157 also.

The issues before the Constitution Bench of this Court arise out of two main conflicting areas of concern,
viz.,
(i) Whether the immediate non-registration of FIR leads to scope for manipulation by the police which
affects the right of the victim/complainant to have a complaint immediately investigated upon allegations
being made; and

(ii) Whether in cases where the complaint/information does not clearly disclose the commission of a
cognizable offence but the FIR is compulsorily registered then does it infringe the rights of an accused.

86) The underpinnings of compulsory registration of FIR is not only to ensure transparency in the
criminal justice delivery system but also to ensure ‘judicial oversight’. Section 157(1) deploys the word
‘forthwith’. Thus, any information received under Section 154(1) or otherwise has to be duly informed in
the form of a report to the Magistrate. Thus, the commission of a cognizable offence is not only brought to
the knowledge of the investigating agency but also to the subordinate judiciary.

Kinds of FIR under CrPC:[See PPT on FIR]

87) The Code contemplates two kinds of FIRs. The duly signed FIR under Section 154(1) is by the
informant to the concerned officer at the police station. The second kind of FIR could be which is registered
by the police itself on any information received or other than by way of an informant [Section 157(1)] and
even this information has to be duly recorded and the copy should be sent to the Magistrate forthwith.

Inherent Advantages of Obligation to Register FIR:

88) The registration of FIR either on the basis of the information furnished by the informant under
Section 154(1) of the Code or otherwise under Section 157(1) of the Code is obligatory. The obligation to
register FIR has inherent advantages:

a) It is the first step to ‘access to justice’ for a victim.

b) It upholds the ‘Rule of Law’ inasmuch as the ordinary person brings forth the commission of a
cognizable crime in the knowledge of the State.
c) It also facilitates swift investigation and sometimes even prevention of the crime. In both cases, it
only effectuates the regime of law.
d) It leads to less manipulation in criminal cases and lessens incidents of ‘ante-dates’ FIR or deliberately
delayed FIR.

92) According to the Statement of Objects and Reasons, protection of the interests of the poor is clearly
one of the main objects of the Code. Making registration of information relating to commission of a
cognizable offence mandatory would help the society, especially, the poor in rural and remote areas of the
country.

93) The Committee on Reforms of Criminal Justice System headed by Dr. Justice V.S. Malimath also
noticed the plight faced by several people due to non-registration of FIRs and recommended that action
should be taken against police officers who refuse to register such information. The Committee observed:-

“7.19.1 According to the Section 154 of the Code of Criminal Procedure, the office incharge of a police
station is mandated to register every information oral or written relating to the commission of a cognizable
offence. Non-registration of cases is a serious complaint against the police. The National Police Commission
in its 4th report lamented that the police “evade registering cases for taking up investigation where
specific complaints are lodged at the police stations”. It referred to a study conducted by the Indian
Institute of Public Opinion, New Delhi regarding “Image of the Police in India” which observed that over
50% of the respondents mention non-registration of complaints as a common practice in police stations.

7.19.2 The Committee recommends that all complaints should be registered promptly, failing which
appropriate action should be taken. This would necessitate change in the mindset of the political executive
and that of senior officers.

7.19.4 There are two more aspects relating to registration. The first is minimization of offences by the
police by way of not invoking appropriate sections of law. We disapprove of this tendency. Appropriate
sections of law should be invoked in each case unmindfull of the gravity of offences involved. The second
issue is relating to the registration of written complaints. There is an increasing tendency amongst the
police station officers to advise the informants, who come to give oral complaints, to bring written
complaints. This is wrong. Registration is delayed resulting in valuable loss of time in launching the
investigation and apprehension of criminals. Besides, the complainant gets an opportunity to consult his
friends, relatives and sometimes even lawyers and often tends to exaggerate the crime and implicate
innocent persons. This eventually has adverse effect at the trial. The information should be reduced in
writing by the SHO, if given orally, without any loss of time so that the first version of the alleged crime
comes on record.

7.20.11 It has come to the notice of the Committee that even in cognizable cases quite often the Police
officers do not entertain the complaint and send the complainant away saying that the offence is not
cognizable. Sometimes the police twist facts to bring the case within the cognizable category even though it
is non-cognizable, due to political or other pressures or corruption. This menace can be stopped by making
it obligatory on the police officer to register every complaint received by him. Breach of this duty should
become an offence punishable in law to prevent misuse of the power by the police officer.”

94) It means that the number of FIRs not registered is approximately equivalent to the number of FIRs
actually registered. Keeping in view the NCRB figures that show that about 60 lakh cognizable offences
were registered in India during the year 2012, the burking (Failure to get/register information of crime) of
crime may itself be in the range of about 60 lakh every year. Thus, it is seen that such a large number of
FIRs are not registered every year, which is a clear violation of the rights of the victims of such a large
number of crimes.

95) Burking of crime leads to dilution of the rule of law in the short run; and also has a very negative
impact on the rule of law in the long run since people stop having respect for rule of law. Thus,
non-registration of such a large number of FIRs leads to a definite lawlessness in the society.

Therefore, reading Section 154 in any other form would not only be detrimental to the Scheme of the
Code but also to the society as a whole. It is thus seen that this Court has repeatedly held in various
decided cases that registration of FIR is mandatory if the information given to the police under Section
154 of the Code discloses the commission of a cognizable offence.

Is there a likelihood of misuse of the provision?

96) Another, stimulating argument raised in support of preliminary inquiry is that mandatory
registration of FIRs will lead to arbitrary arrest, which will directly be in contravention of Article 21 of the
Constitution.

97) While registration of FIR is mandatory, arrest of the accused immediately on registration of FIR is
not at all mandatory. In fact, registration of FIR and arrest of an accused person are two entirely different
concepts under the law, and there are several safeguards available against arrest. Moreover, it is also
pertinent to mention that an accused person also has a right to apply for “anticipatory bail” under the
provisions of Section 438 of the Code if the conditions mentioned therein are satisfied. Thus, in appropriate
cases, he can avoid the arrest under that provision by obtaining an order from the Court.

98) It is also relevant to note that in Joginder Kumar v. State of U.P. [(1994) 4 SCC 260], this Court has
held that arrest cannot be made by police in a routine manner. Some important observations are
reproduced as under:-

“20…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 for a police officer in the interest of protection of the constitutional
rights of a citizen and perhaps in his own interest that no arrest should be made 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. Denying a
person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the
constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable
to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in
the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous
offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House
and not to leave the Station without permission would do.”

99) The registration of FIR under Section 154 of the Code and arrest of an accused person under Section
41 are two entirely different things. It is not correct to say that just because FIR is registered, the accused
person can be arrested immediately. It is the imaginary fear that “merely because FIR has been
registered, it would require arrest of the accused and thereby leading to loss of his reputation” and it
should not be allowed by this Court to hold that registration of FIR is not mandatory to avoid such
inconvenience to some persons. The remedy lies in strictly enforcing the safeguards available against
arbitrary arrests made by the police and not in allowing the police to avoid mandatory registration of FIR
when the information discloses commission of a cognizable offence.

100) This can also be seen from the fact that Section 151 of the Code allows a police officer to arrest a
person, even before the commission of a cognizable offence, in order to prevent the commission of that
offence, if it cannot be prevented otherwise. Such preventive arrests can be valid for 24 hours. However, a
Maharashtra State amendment to Section 151 allows the custody of a person in that State even for up to a
period of 30 days (with the order of the Judicial Magistrate) even before a cognizable offence is committed
in order to prevent commission of such offence. Thus, the arrest of a person and registration of FIR are not
directly and/or irreversibly linked and they are entirely different concepts operating under entirely different
parameters. On the other hand, if a police officer misuses his power of arrest, he can be tried and
punished under Section 166.

101) Besides, the Code gives power to the police to close a matter both before and after investigation.

⮚ A police officer can foreclose an FIR before an investigation under Section 157 of the Code, if it appears
to him that there is no sufficient ground to investigate the same. The Section itself states that a police
officer can start investigation when he has a ‘reason to suspect the commission of an offence’.
Therefore, the requirements of launching an investigation under Section 157 of the Code are higher than
the requirement under Section 154 of the Code.

⮚ The police officer can also, in a given case, investigate the matter and then file a final report under
Section 173 of the Code seeking closure of the matter.

Therefore, the police is not liable to launch an investigation in every FIR which is mandatorily registered
on receiving information relating to commission of a cognizable offence.

102) Likewise, giving power to the police to close an investigation, Section 157 of the Code also acts like a
check on the police to make sure that it is dispensing its function of investigating cognizable offences. This
has been recorded in the 41st Report of the Law Commission of India on the Code of Criminal Procedure,
1898 as follows:

14.1…….If the offence does not appear to be serious and if the station-house officer thinks there is no
sufficient ground for starting an investigation, he need not investigate but, here again, he has to send a
report to the Magistrate who can direct the police to investigate, or if the Magistrate thinks fit, hold an
inquiry himself.

14.2. A noticeable feature of the scheme as outlined above is that a Magistrate is kept in the picture at all
stages of the police investigation, but he is not authorized to interfere with the actual investigation or to
direct the police how that investigation is to be conducted.” 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.

103) It is the stand of Mr. Naphade, learned senior counsel for the State of Maharashtra that when an
innocent person is falsely implicated, he not only suffers from loss of reputation but also from mental
tension and his personal liberty is seriously impaired. He relied on the Maneka Gandhi (supra), which held
the proposition that the law which deprives a person of his personal liberty must be reasonable both from
the stand point of substantive as well as procedural aspect is now firmly established in our Constitutional
law. Therefore, he pleaded for a fresh look at Section 154 of the Code, which interprets Section 154 of the
Code in conformity with the mandate of Article 21.

104) It is true that a delicate balance has to be maintained between the interest of the society and
protecting the liberty of an individual. As already discussed above, there are already sufficient safeguards
provided in the Code which duly protect the liberty of an individual in case of registration of false FIR. At
the same time, Section 154 was drafted keeping in mind the interest of the victim and the society.
Therefore, we are of the cogent view that mandatory registration of FIRs under Section 154 of the Code
will not be in contravention of Article 21 of the Constitution as purported by various counsel.

Exceptions to the mandatory registration of FIR:

105) Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory
registration of FIRs on receipt of all cognizable offence, yet, there may be instances where preliminary
inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time.

⮚ One such instance is in the case of allegations relating to medical negligence on the part of doctors. It
will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in
the complaint.

In the context of medical negligence cases, in Jacob Mathew Case (supra), it was held by this Court as
under:
51. We may not be understood as holding that doctors can never be prosecuted for an offence of which
rashness or negligence is an essential ingredient. All that we are doing is to emphasise the need for care
and caution in the interest of society; for, the service which the medical profession renders to human
beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or
unjust prosecutions. Many a complainant prefer recourse to criminal process as a tool for pressurising the
medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have
to be guarded against.

52. Statutory rules or executive instructions incorporating certain guidelines need to be framed and
issued by the Government of India and/or the State Governments in consultation with the Medical Council
of India. So long as it is not done, we propose to lay down certain guidelines for the future which should
govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an
ingredient. A private complaint may not be entertained unless the complainant has produced prima facie
evidence before the court in the form of a credible opinion given by another competent doctor to
support the charge of rashness or negligence on the part of the accused doctor.

The investigating officer should, before proceeding against the doctor accused of rash or negligent act or
omission, obtain an independent and competent medical opinion preferably from a doctor in government
service, qualified in that branch of medical practice who can normally be expected to give an impartial and
unbiased opinion applying the Bolam test to the facts collected in the investigation. A doctor accused of
rashness or negligence, may not be arrested in a routine manner (simply because a charge has been
levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting
evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not
make himself available to face the prosecution unless arrested, the arrest may be withheld.”

108) In the context of offences relating to corruption, this Court in P. Sirajuddin Case (supra) expressed
the need for a preliminary inquiry before proceeding against public servants.
109) Similarly, in Tapan Kumar Singh (supra), this Court has validated a preliminary inquiry prior to
registering an FIR only on the ground that at the time the first information is received, the same does not
disclose a cognizable offence.

110) Therefore, in view of various counter claims regarding registration or non-registration, what is
necessary is only that the information given to the police must disclose the commission of a cognizable
offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made
out in the information given, then the FIR need not be registered immediately and perhaps the police can
conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a
cognizable offence has been committed. But, if the information given clearly mentions the commission of a
cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not
relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the
information is genuine, whether the information is credible etc. These are the issues that have to be
verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely
whether the information given ex facie discloses the commission of a cognizable offence. If, after
investigation, the information given is found to be false, there is always an option to prosecute the
complainant for filing a false FIR

Conclusion/Directions:
111) In view of the aforesaid discussion, we hold:

i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses
commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. [FIR
discloses cognizable offence (Mandatory FIR)]

ii) If the information received does not disclose a cognizable offence but indicates the necessity for an
inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed
or not. [FIR does not disclose cognizable offence ( Preliminary Inquiry)]

iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases
where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be
supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for
closing the complaint and not proceeding further.

iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed.
Action must be taken against erring officers who do not register the FIR if information received by him
discloses a cognizable offence.

v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information
received but only to ascertain whether the information reveals any cognizable offence.

vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts
and circumstances of each case. The category of cases in which preliminary inquiry may be made are as
under:
a) Matrimonial disputes/family disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example,
over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary
inquiry.

vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry
should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the
causes of it must be reflected in the General Diary entry.

viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police
station, we direct that all information relating to cognizable offences, whether resulting in registration of
FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the
decision to conduct a preliminary inquiry must also be reflected, as mentioned above.

112) With the above directions, we dispose of the reference made to us. List all the matters before the
appropriate Bench for disposal on merits.

Lalita Kumari v. Govt. of Uttar Pradesh

CRL.M.P. NO.5029 OF 2014
IN WRIT PETITION (CRL.) NO.68 OF 2008
ORDER

After hearing him and in the light of the grievance expressed in the present criminal miscellaneous petition
filed in the writ petition, we modify clause (vii) of paragraph 111 of our judgment dated 12th November,
2013, in the following manner:

"(vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry
should be made time bound and in any case it should not exceed fifteen days generally and in exceptional
cases, by giving adequate reasons, six weeks time is provided. The fact of such delay and the causes of it
must be reflected in the General Diary entry."

To this extent, clause (vii) of paragraph 111 of the judgment is modified. Criminal miscellaneous petition is,
accordingly, disposed of.

Preliminary Inquiry

Preliminary inquiry is possible in two circumstance:

1. If FIR discloses cognizable offence and that offence is related to MCMCD, and 
2. If FIR does not disclose cognizable offence ‘Preliminary Inquiry’ can be conducted to ensure nature
of offence. If in ‘Preliminary Inquiry’ it is concluded that offence is cognizable, then FIR shall be registered.

Purpose of ‘Preliminary Inquiry’: The scope of preliminary inquiry is not to verify the veracity or otherwise
of the information received but only to ascertain whether the information reveals any cognizable offence.
(vi) ‘Preliminary Inquiry’ in MC, MCD (Matrimonial Commercial, Medical Corruption, Delay for three month)
- As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and
circumstances of each case. The categories of cases in which preliminary inquiry may be made are as
under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3
months delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary
inquiry.

⮚ ‘Preliminary Inquiry’ should be completed within 15 days - While ensuring and protecting the rights of
the accused and the complainant, a preliminary inquiry should be made time bound and in any case it
should not exceed 15 days. The fact of such delay and the causes of it must be reflected in the General
Diary entry.

⮚ Registration or preliminary inquiry must be mentioned in‘General Diary’- Since the General
Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct
that all information relating to cognizable offences, whether resulting in registration of FIR or leading to
an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to
conduct a preliminary inquiry must also be reflected, as mentioned above.
 Youth Bar Association of India v. Union of India
(2016) 9 SCC 473

DIPAK MISRA AND C. NAGAPPAN , JJ.

ORDER

In this writ petition, preferred under Article 32 of the Constitution of India, the petitioner, Youth Bar
Association of India, has prayed:
for issue of a writ in the nature of mandamus, directing the Union of India and the States to upload each
and every First Information Report registered in all the police stations within the territory of India in the
official website of the police of all States, as early as possible, preferably within 24 hours from the time
of registration.

After the writ petition was entertained by this Court, notices were issued to the Union of India and the
States.

Submissions of the Counsel of Petitioner: It is submitted by Mr. Sanpreet Singh Ajmani, learned counsel
appearing for the petitioner:

that after registration of the First Information Report if it is uploaded in the official website of police,
that will solve many unnecessary problems faced by the accused persons and their family members.

that when the criminal law is set in motion and liberty of an individual is at stake, he should have the
information so that he can take necessary steps to protect his liberty. In this context, he has drawn our
attention to a passage from the judgment rendered in State of West Bengal and others vs. Committee
for Protection of Democratic Rights, West Bengal and others (2010) 3 SCC 571, wherein it has been
observed:- “Article 21 of the Constitution in its broad perspective seeks to protect the persons of their
lives and personal liberties except according to the procedure established by law. The said Article in its
broad application not only takes within its fold enforcement of the rights of an accused but also the
rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair
and impartial investigation against any person accused of commission of a cognizable offence, which
may include its own officers. In certain situations even a witness to the crime may seek for and shall
be granted protection by the State.”

In Som Mittal vs. Government of Karnataka (2008) 3 SCC 753, the Court has ruled thus:- “The right to
liberty under Article 21 of the Constitution is a valuable right, and hence should not be lightly interfered
with. It was won by the people of Europe and America after tremendous historical struggles and
sacrifices. One is reminded of Charles Dickens novel `A Tale of Two Cities in which Dr. Manette was
incarcerated in the Bastille for 18 years on a mere lettre de cachet of a French aristocrat, although he
was innocent.”

In D.K. Basu vs. State of West Bengal AIR 1997 SC 610 it has been opined that:- “The rights inherent in
Articles 21 and 22(1) of the Constitution required to be jealously and scrupulously protected. We
cannot wish away the problem. Any form of torture of cruel, inhuman or degrading treatment would
fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation,
interrogation or otherwise. If the functionaries of the Government become law breakers, it is bound to
breed contempt for law and would encourage lawlessness and every man would have the tendency to
become law unto himself thereby leading to anarchanism. No civilised nation can permit that to
happen.
Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the
right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal court of
human rights jurisprudence. The answer, indeed, has to be an emphatic 'No'. The precious right
 guaranteed by Article 21 of the Constitution of India cannot be denied to convicted undertrials,
detenues and other prisoners in custody, except according to the procedure established by law by
placing such reasonable restrictions as are permitted by law.”

Learned counsel for the petitioner has also drawn our attention to a Division Bench decision of Delhi
High Court rendered in Court on its Own Motion through Mr. Ajay Chaudhary vs. State (2010) 175
DLT (DB).

Submissions of the Respondents:

On being asked, Mr. Tushar Mehta, learned Additional Solicitor General appearing for the Union of
India, has submitted that the directions issued by the High Court of Delhi can be applied with certain
modifications. Learned Additional Solicitor General has also drawn our attention to paragraph 4 of the
affidavit filed in an interlocutory application in the present writ petition. The said paragraph reads as
under:- “4. That is it respectfully submitted that Central Government is supporting all the states to
set up a mechanism for online filing of complaints under the protect 'Crime & Criminal Tracking
Network & Systems (CCTNS)'.”

Mr. Saurabh Trivedi, learned counsel appearing for the State of Uttarakhand has submitted that the
First Information Report in respect of certain offences which are registered, like sexual offences and the
offences registered under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), may
be difficult to be put on the website.

Mr. Ranjan Mukherjee, Mr. Shikhar Garg, and Mr. Yusuf Khan, learned counsel appearing for the States
of Meghalaya, Mizoram and Sikkim respectively, have submitted that insurgency would be a sensitive
matter and, that apart, it may not be possible on the part of the said States to upload the First
Information Reports within 24 hours.

Mr. Uddyam Mukherji, learned counsel appearing for the State of Odisha has submitted that whether
a matter is sensitive or not, the Court may say no reasons should be given because the allegation in the
F.I.R. shall speak for itself.

Decision of the Supreme Court:

Having heard learned counsel for the parties, we think it appropriate to record the requisite conclusions
and, thereafter, proceed to issue the directions:-

(a) An accused is entitled to get a copy of the First Information Report at an earlier stage than as prescribed
under Section 207 of the Cr.P.C.

(b) An accused who has reasons to suspect that he has been roped in a criminal case and his name may be
finding place in a First Information Report can submit an application through his
representative/agent/parokar for grant of a certified copy before the concerned police officer or to the
Superintendent of Police on payment of such fee which is payable for obtaining such a copy from the
Court. On such application being made, the copy shall be supplied within twenty-four hours.

(c) Once the First Information Report is forwarded by the police station to the concerned Magistrate or any
Special Judge, on an application being filed for certified copy on behalf of the accused, the same shall be
given by the Court concerned within two working days. The aforesaid direction has nothing to do with the
statutory mandate inhered under Section 207 of the Cr.P.C.

(d) The copies of the FIRs, unless the offence is sensitive in nature, like sexual offences, offences
pertaining to insurgency, terrorism and of that category, offences under POCSO Act and such other
offences, should be uploaded on the police website, and if there is no such website, on the official
website of the State Government, within twenty-four hours of the registration of the First Information
Report so that the accused or any person connected with the same can download the FIR and file
appropriate application before the Court as per law for redressal of his grievances.

It may be clarified here that in case there is connectivity problems due to geographical location or there is
some other unavoidable difficulty, the time can be extended up to forty-eight hours. The said 48 hours can
be extended maximum up to 72 hours and it is only relatable to connectivity problems due to geographical
location.

(e) The decision not to upload the copy of the FIR on the website shall not be taken by an officer below the
rank of Deputy Superintendent of Police or any person holding equivalent post. In case, the States where
District Magistrate has a role, he may also assume the said authority. A decision taken by the concerned
police officer or the District Magistrate shall be duly communicated to the concerned jurisdictional
Magistrate.

(f) The word 'sensitive' apart from the other aspects which may be thought of being sensitive by the
competent authority as stated hereinbefore would also include concept of privacy regard being had to the
nature of the FIR. The examples given with regard to the sensitive cases are absolutely illustrative and
are not exhaustive.

(g) If an FIR is not uploaded, needless to say, it shall not enure per se a ground to obtain the benefit under
Section 438 of the Cr.P.C.

(h) In case a copy of the FIR is not provided on the ground of sensitive nature of the case, a person grieved
by the said action, after disclosing his identity, can submit a representation to the Superintendent of
Police or any person holding the equivalent post in the State. The Superintendent of Police shall constitute
a committee of three officers which shall deal with the said grievance.

As far as the Metropolitan cities are concerned, where Commissioner is there, if a representation is
submitted to the Commissioner of Police who shall constitute a committee of three officers.

The committee so constituted shall deal with the grievance within three days from the date of receipt of
the representation and communicate it to the grieved person.

(i) The competent authority referred to hereinabove shall constitute the committee, as directed herein-
above, within eight weeks from today.

(j) In cases wherein decisions have been taken not to give copies of the FIR regard being had to the
sensitive nature of the case, it will be open to the accused/his authorized representative/parokar to file an
application for grant of certified copy before the Court to which the FIR has been sent and the same shall
be provided in quite promptitude by the concerned Court not beyond three days of the submission of the
application.

(k) The directions for uploading of FIR in the website of all the States shall be given effect from 15th
November, 2016.

Let a copy of this order be sent to all the Home Secretaries and the Director Generals of Police of the
States concerned.

The writ petition is, accordingly, disposed of.

 State of Orissa v. Sharat Chandra Sahu & Anr.
(1996) 6 SCC 435 S.

SAGHIR AHMAD, J.:

Relevant Provision of the Code:

⮚ Sub-section (4) of Section 155: Where the case relates to two offences of which one is cognizable, the
case shall be deemed to be a cognizable case notwithstanding that the other offence or offences are
non-cognizable.

Facts of the Case:

⮚ Respondent 1 is the husband of Respondent 2 who made a complaint in writing to the Women’s
Commission setting out therein that Respondent 1 had contracted a second marriage and had thus
committed an offence punishable under Section 494 IPC. It was also alleged that ever since the
marriage with her, he had been making demands for money being paid to him which amounted to her
harassment and constituted the offence punishable under Section 498-A IPC for which Respondent 1
was liable to be punished.

⮚ The Women’s Commission sent the complaint to the police station where GR Case No. 418 of 1993 was
registered against Respondent 1. The police investigated the case and filed a charge-sheet in the Court
of Sub-Divisional Judicial Magistrate, Anandpur, who, after perusal of the charge-sheet, framed charges
against Respondent 1 under Section 498-A as also under Section 494 IPC.

Note: If an accused person is aggrieved by the framing of charge by the Trial Court, he/she is entitled to
approach High Court under Section 482 of Cr.P.C. for quashing such charge/charges framed against
Him/Her.

⮚ Aggrieved by the framing of the charge by the Sub-Divisional Judicial Magistrate, Anandpur,
Respondent 1 filed a petition (Criminal Miscellaneous Case No. 1169 of 1994) under Section 482 of the
Code of Criminal Procedure (for short, the Code) in the Orissa High Court for quashing the proceedings
and the charges framed against him.

Decision of High Court on the Petition under Section 482 of the Code: The High Court by its impugned
judgment dated 3-5-1995 partly allowed the petition with the findings that since Respondent 2 had not
herself personally filed the complaint under Section 494 IPC, its cognizance could not have been taken by
the Magistrate in view of the provisions contained in Section 198(1)(c) of the Code.
Consequently, the charge framed by the Magistrate under Section 494 IPC was quashed but the charge
under Section 498-A IPC was maintained and the petition under Section 482 Criminal Procedure Code to
that extent was dismissed.

Hence the instant Appeal:

Decision of Supreme Court in Appeal:

The judgment of the High Court so far as it relates to the quashing of the charge under Section 494 IPC, is
wholly erroneous and is based on complete ignorance of the relevant statutory provisions.

⮚ The first Schedule appended to the Code indicates that the offence under Section 494 IPC is
non-cognizable and bailable. It is thus obvious that the police could not take cognizance of this offence
and that a complaint had to be filed before a Magistrate.
⮚ These provisions set out the prohibition for the court from taking cognizance of an offence punishable
under Chapter XX of the Indian Penal Code.

⮚ The cognizance, however, can be taken only if the complaint is made by the person aggrieved by the
offence. Clause (c) appended to the proviso to sub-section (1) of section 198 provides that where a
person aggrieved is the wife, a complaint may be made on her behalf by her father, mother, brother,
sister, son or daughter or other relations mentioned therein who are related to her by blood, marriage
or adoption.

⮚ The High Court relied upon the provisions contained in clause (c) and held that since the wife herself
had not filed the complaint and Women’s Commission had complained to the police, the Sub-Divisional
Judicial Magistrate, Anandpur could not legally take cognizance of the offence. In laying down this
proposition, the High Court forgot that the other offence namely, the offence under Section 498-A
IPC was a cognizable offence and the police was entitled to take cognizance of the offence
irrespective of the person who gave the first information to it.

⮚ Sub-section (4) of Section 155 clearly provides that where the case relates to two offences of which
one is cognizable, the case shall be deemed to be a cognizable case notwithstanding that the other
offence or offences are non-cognizable.

⮚ Sub-section (4) creates a legal fiction and provides that although a case may comprise of several
offences of which some are cognizable and others are not, it would not be open to the police to
investigate the cognizable offences only and omit the non-cognizable offences. Since the whole case
(comprising of cognizable and non-cognizable offences) is to be treated as cognizable, the police had no
option but to investigate the whole of the case and to submit a charge-sheet in respect of all the
offences, cognizable or non-cognizable both, provided it is found by the police during investigation that
the offences appear, prima facie, to have been committed.

⮚ Sub-section (4) of Section 155 is a new provision introduced for the first time in the Code in 1973. This
was done to overcome the controversy about investigation of non-cognizable offences by the police
without the leave of the Magistrate.

⮚ The statutory provision is specific, precise and clear and there is no ambiguity in the language
employed in subsection (4). It is apparent that if the facts reported to the police disclose both
cognizable and non-cognizable offences, the police would be acting within the scope of its authority in
investigating both the offences as the legal fiction enacted in sub-section (4) provides that even a
non-cognizable case shall, in that situation, be treated as cognizable.

⮚ This Court in Pravin Chandra Mody v. State of A.P. [AIR 1965 SC 1185] has held that while investigating
a cognizable offence and presenting a charge-sheet for it, the police are not debarred from
investigating any non-cognizable offence arising out of the same facts and including them in the
charge-sheet.

The High Court was thus clearly in error in quashing the charge under Section 494 IPC on the ground that
the trial court could not take cognizance of that offence unless a complaint was filed personally by the
wife or any other near relation contemplated by clause (c) of the proviso to Section 198(1).

The judgment of the High Court being erroneous has to be set aside. The appeal is consequently allowed.
The judgment and order dated 3-5-1995 passed by the Orissa High Court insofar as it purports to quash
the charge under Section 494 IPC and the proceedings relating thereto is set aside with the direction to
the Magistrate to proceed with the case and dispose of it expeditiously.
 Madhu Bala v. Suresh Kumar
(1997) 8 SCC 476

M K MUKHERJEE, J.:

⮚ On 18-2-1988, the appellant filed a complaint against the three respondents, who are her husband,
father-in-law and mother-in law respectively, before the Chief Judicial Magistrate, Kurukshetra alleging
commission of offences under Sections 498- A and 406 of the Indian Penal Code (IPC for short) by
them.

⮚ On that complaint the learned Magistrate passed an order under Section 156(3) of the Code of
Criminal Procedure ("Code" for short) directing the police to register a case and investigate into the
same. Pursuant to the said direction Thaneswar Police Station registered a case being FIR No. 61 of
1988 and on completion of investigation submitted charge-sheet (police report) against the three
respondents under Sections 498-A and 406 IPC.

⮚ The learned Magistrate took cognizance of the said charge-sheet and thereafter framed charge against
the three respondents under Section 406 IPC only as, according to the learned Magistrate, the offence
under Section 498-A IPC was allegedly committed in the district of Karnal.

Against the framing of the charge the respondents moved the Sessions Judge in revision, but without
success.

⮚ Thereafter on 29-1-1994 the appellant filed another complaint against the respondents under Section
498-A IPC before the Chief Judicial Magistrate, Karnal and on this complaint the learned Magistrate
passed a similar order under Section 156(3) of the Code for registration of a case and investigation. In
compliance with the order, FIR No. 111 of 1994 was registered by the Karnal Police Station and on
completion of investigation charge-sheet was submitted against the three respondents under Section
498-A IPC. On that charge-sheet the learned Magistrate took cognizance of the above offence and later
on framed charge against them in accordance with Section 240 of the Code.

While the above two cases were being tried, the respondents filed petitions under Section 482 of the
Code before the Punjab and Haryana High Court for quashing of their proceedings on the ground that the
orders passed by the Chief Judicial Magistrates of Kurukshetra and Karnal directing registration of cases
in purported exercise of their power under Section 156(3) of the Code were patently wrong and
consequently all actions taken pursuant thereto were illegal.

Decision of High Court on the Petitions under Section 482 of the Code:

⮚ The contention so raised found favour with the High Court, and by the impugned judgement it quashed
the orders of the Chief Judicial Magistrates of Kurukshetra and Karnal dated 18-2-1988 and 29-1-1994
respectively, pursuant to which cases were registered by the police on the complaints of the appellant,
and the entire proceedings of the two cases arising therefrom.

⮚ According to the High Court, under Section 156(3) of the Code a Magistrate can only direct
investigation by the police but he has no power to direct “registration of a case.” In drawing the above
conclusion, it relied upon the judgements of this Court in Gopal Das Sindhi v. State of Assam [AIR 1961
SC 986] and Tula Ram v. Kishore Singh [AIR 1977 SC 2401] and some judgments of the Punjab and
Haryana High Court which, according to it, followed the above two decisions of this Court.
Decision of Supreme Court in Appeal on the impugned Judgment of High Court:

⮚ In our considered view, the impugned judgment is wholly unsustainable as it has not only failed to
consider the basic provisions of the Code but also failed to notice that the judgments in Gopal Das and
Tula Ram have no relevance whatsoever to the interpretation or purport of Section 156(3) of the Code.
The earlier judgments of the Punjab and Haryana High Court, which have been followed in the instant
case also suffer from the above two infirmities.

⮚ Coming first to the relevant provisions of the Code, Section 2(d) defines “complaint” to mean any
allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code,
that some person, whether known or unknown has committed an offence, but does not include a police
report.

⮚ Under Section 2(c) “cognizable offence” means an offence for which, and “cognizable case” means a
case in which a police officer may in accordance with the First Schedule (of the Code) or under any
other law for the time being in force, arrest without a warrant.

⮚ Under Section 2(r) “police report” means a report forwarded by a police officer to a Magistrate under
sub-section (2) of Section 173 of the Code. [popularly known as ‘Chargesheet’]

Chapter XII of the Code comprising Sections 154 to 176 relates to information to the police and their
powers to investigate.

⮚ Section 154 provides, inter alia, that the officer in charge of a police station shall reduce into writing
every information relating to the commission of a cognizable offence given to him orally and every
such information if given in writing shall be signed by the person giving it and the substance thereof
shall be entered in a book to be kept by such officer in such form as the State Government may
prescribe in this behalf.

On completion of investigation undertaken under Section 156(1)

the officer in charge of the police station is required under Section 173(2) to forward to a Magistrate
empowered to take cognizance of the offence on a police report (Section 190 of the Code), a report in the
form prescribed by the State Government containing all the particulars mentioned therein.

Chapter XIV of the Code lays down the conditions requisite for initiation of proceedings by the
Magistrate.
⮚ Under subsection (1) of Section 190 appearing in that Chapter any Magistrate of the First Class and any
Magistrate of the Second Class specially empowered may take cognizance of any offence:

(a) upon receiving a “complaint” of facts which constitutes such offence;

(b) upon a “police report” of such facts; or
(c) upon information received from any person other than a police officer, or upon his own knowledge
(suo motto cognizance) that such offence has been committed.

Chapter XV prescribes the procedure the Magistrate has to initially follow if it takes cognizance of an
offence on a complaint under Section 190(1) (a).
Options Available to a Magistrate when a Written Complaint disclosing a cognizable offence is made
before Him/Her:

FIRST OPTION: From a combined reading of the above provisions it is abundantly clear that when a
written complaint disclosing a cognizable offence is made before a Magistrate, he may take cognizance
upon the same under Section 190(1) (a) of the Code and proceed with the same in accordance with the
provisions of Chapter XV.

SECOND OPTION: The other option available to the Magistrate in such a case is to send the complaint to
the appropriate police station under Section 156(3) for investigation. Once such a direction is given under
subsection (3) of Section 156 the police is required to investigate into that complaint under sub-section
(1) thereof and on completion of investigation to submit a “police report” in accordance with Section
173(2) on which a Magistrate may take cognizance under Section 190(1) (b) - but not under 190(1) (a).

⮚ Since a complaint filed before a Magistrate cannot be a “police report” in view of the definition of
“complaint” referred to earlier and since the investigation of a “cognizable case” by the police under
Section 156(1) has to culminate in a “police report; the “complaint” - as soon as an order under
Section 156(3) is passed thereon - transforms itself to a report given in writing within the meaning of
Section 154 of the Code, which is known as the first information report (FIR). As under Section 156(1),
the police can only investigate a cognizable “case”, it has to formally register a case on that report.

Important Point: The mode and manner of registration of such cases are laid down in the Rules framed by
the different State Governments under the Indian Police Act, 1861. The other requirements of the said
Rules need not be detailed as they have no relevance to the point at issue.

From the foregoing discussion it is evident that whenever a Magistrate directs an investigation on a
“complaint” the police has to register a cognizable case on that complaint treating the same as the FIR
and comply with the requirements of the above Rules. It, therefore, passes our comprehension as to how
the direction of a Magistrate asking the police to “register a case” makes an order of investigation under
Section 156(3) legally unsustainable.

⮚ Indeed, even if a Magistrate does not pass a direction to register a case, still in view of the provisions of
Section 156(1) of the Code which empowers the police to investigate into a cognizable “case” and the
Rules framed under the Indian Police Act, 1861 it (the police) is duty bound to formally register a case
and then investigate into the same.

⮚ The provisions of the Code, therefore, do not in any way stand in the way of a Magistrate to direct the
police to register a case at the police station and then investigate into the same.

In our opinion when an order for investigation under Section 156(3) of the Code is to be made the proper
direction to the police would be “to register a case at the police station treating the complaint as the first
information report and investigate into the same.”

Adverting now to the two cases of this Court on which reliance has been placed by the High Court we
find that
I. In the case of Gopal Das' the facts were that on receipt of a complaint of commission of offences under
Sections 147, 323, 342 and 448 of the Indian Penal Code, the Additional District Magistrate made the
following endorsement: “To Shri C. Thomas, Magistrate 1st Class, for disposal.” On receiving the
complaint Mr. Thomas directed the officer in charge of the Gauhati Police Station to register a case,
investigate and if warranted submit a charge-sheet. After investigation police submitted a charge-sheet
and on receipt thereof the Additional District Magistrate forwarded it to Shri R. Goswami, Magistrate
for disposal.
❖ Shri Goswami framed a charge under Section 448 of the Indian Penal Code against the accused therein
and aggrieved thereby the accused first approached the revisional court and, having failed there, the
High Court under Article 227 of the Constitution of India.

❖ Since the petition before the High Court was also dismissed they moved this Court. The contention that
was raised before this Court was that Mr. Thomas acted without jurisdiction in directing the police to
register a case to investigate it and thereafter to submit a charge-sheet, if warranted. The steps of
reasoning for the above contention were that since the Additional District Magistrate had transferred
the case to Mr. Thomas for disposal under Section 192 of the Code it must be said that the former had
already taken cognizance thereupon under Section 190(1) (a) of the Code. Therefore, he (Mr. Thomas)
could not pass any order under Section 156(3) of the Code as it related to a pre-cognizance stage; and
he could deal with the same only in accordance with Chapter XVI.

In negativing this contention this Court held that the order of the Additional District Magistrate transferring
the case to Mr. Thomas on the face of it did not show that the former had taken cognizance of any offence
in the complaint. According to this Court the order was by way of an administrative action, presumably
because Mr. Thomas was the Magistrate before whom ordinarily complaints were to be filed. The case of
Gopal Das has, therefore, no manner of application in the facts of the instant case. It is interesting to note
that the order that was passed under Section 156(3) therein also contained a direction to the police to
register a case.

II. In Tula Ram case, the only question that was raised before this Court was whether or not a Magistrate
after receiving a complaint and after directing investigation under Section 155(3) of the Code and on
receipt of the "police report" from the police can issue notice to the complainant, record his
statement and the statements of other witnesses and then issue process under Section 204 of the
Code.
From the question itself it is apparent that the said case related to a stage after the police report under
Section 173(2) of the Code was submitted pursuant to an order under Section 156(3) of the Code and not
to the nature of the order that can be passed thereunder Section 156(3).

III. The cases of the Punjab and Haryana High Court referred to by the learned Judge in the impugned
judgement need not be discussed in detail for they only lay down the proposition that under Section
156(3) a Magistrate can only direct investigation but cannot direct registration of a case for no such
power is given to him under that section. We repeat and reiterate that such a power inheres in
Section 156(3), for investigation directed thereunder can only be in the complaint filed before the
Magistrate on which a case has to be formally registered in the police station treating the same as
the FIR. If the reasoning of the Punjab and Haryana High Court is taken to its logical conclusion it would
mean that if a Magistrate issues a direction to submit a report under Section 173(2) of the Code after
completion of investigation while passing an order under Section 156(3) it would be equally bad for
the said section only "directs investigation" and nothing more. Needless to say, such a conclusion
would be fallacious, for while with the registration of a case by the police on the complaint, the
investigation directed under Section 156(3) commences, with the submission of the "police report"
under Section 173(2) it culminates.

Appeal Allowed: On the conclusions as above we set aside the impugned judgement and orders of the
High Court and direct the Magistrates concerned to proceed with the cases in accordance with law. The
appeals are accordingly allowed.
 Sakiri Vasu v. State of U.P.
(2008) 2 SCC 409

MARKANDEY KATJU, J.:

Facts of the Case:

⮚ The son of the appellant was a Major in the Indian Army. His dead body was found on 23.8.2003 at
Mathura Railway Station. The G.R.P, Mathura investigated the matter and gave a detailed report on
29.8.2003 stating that the death was due to an accident or suicide.

⮚ The Army officials at Mathura also held two Courts of Inquiry and both times submitted the report that
the deceased Major S. Ravishankar had committed suicide at the railway track at Mathura junction.

⮚ The first Court of Inquiry was held by the Army which gave its report in September, 2003 stating that it
was a case of suicide. The appellant was not satisfied with the findings of this Court of Inquiry and
hence on 22.4.2004 he made a representation to the then Chief of the Army Staff, General N.C. Vij, as a
result of which another Court of Inquiry was held. However, the second Court of Inquiry came to the
same conclusion as that of the first inquiry namely, that it was a case of suicide.

The Court of Inquiry relied on:

(i) the statement of the Sahayak (domestic servant) Pradeep Kumar who made a statement that
“deceased Major Ravishankar never looked cheerful; he used to sit on a chair in the verandah gazing at
the roof with blank eyes and deeply involved in some thoughts and used to remain oblivious of the
surroundings”.
(ii) the deposition of the main eye-witness, gangman Roop Singh, who stated that Major Ravishankar
was hit by a goods train that came from Delhi.

The appellant who is the father of Major Ravishankar alleged that in fact it was a case of murder and not
suicide. He alleged that in the Mathura unit of the Army there was rampant corruption about which Major
Ravishankar came to know and he made oral complaints about it to his superiors and also to his father.
According to the appellant, it was for this reason that his son was murdered.

Aggrieved by the two courts of Inquiry, the appellant filed a writ petition in the High Court which was
dismissed by the impugned judgment.

Prayer of the petitioner (appellant herein) in the writ petition: that the matter be ordered to be
investigated by the Central Bureau of Investigation (in short “CBI”).

Since his prayer was rejected by the High Court, hence this appeal by way of special leave.

Decision of the Supreme Court:

⮚ It has been held by this Court in CBI v. Rajesh Gandhi [(1996) 11 SCC 253] that no one can insist that an
offence be investigated by a particular agency. We fully agree with the view in the aforesaid decision.
An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no
right to claim that it be investigated by any particular agency of his choice.
In this decision the Supreme Court stated the remedies available to a person if he has a grievance that
the police station is not registering his FIR:

⮚ In this connection we would like to state that if a person has a grievance that the police station is not
registering his FIR under Section 154 Cr.P.C., then he can approach the Superintendent of Police under
Section 154(3) Cr.P.C. by an application in writing or other police officer referred to in Section 36 Cr.P.C.

⮚ Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered,
or that even after registering it no proper investigation is held, it is open to the aggrieved person to file
an application under Section 156 (3) Cr.P.C. before the learned Magistrate concerned. If such an
application under Section 156 (3) is filed before the Magistrate, the Magistrate can direct the FIR to be
registered and also can direct a proper investigation to be made, in a case where, according to the
aggrieved person, no proper investigation was made. The Magistrate can also under the same
provision monitor the investigation to ensure a proper investigation.

⮚ The aggrieved person has a further remedy of filing a criminal complaint under Section 200 Cr.P.C.

⮚ If the person is still aggrieved then he can approach the High Court by filing a petition under Section
482 of CrPC.

⮚ He may also approach the High Court by filing a writ petition under Article 226 of the Constitution of
India.

Discussion on Powers of Magistrate under Section 156(3) of CrPC which are Necessary for Ensuring a
Proper Investigation:

Section 156 (3) of CrPC states:

“Any Magistrate empowered under Section 190 may order such an investigation as abovementioned.” The
words “as above-mentioned” obviously refer to Section 156 (1), which contemplates investigation by the
officer in charge of the Police Station.

Power of Magistrate to Order Investigation and/or Registration of FIR under Section 156(3):

⮚ In Mohd. Yousuf v. Afaq Jahan [(2006) 1 SCC 627] this Court observed:

“11. The clear position therefore is that any judicial Magistrate, before taking cognizance of the offence,
can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the
complainant on oath because he was not taking cognizance of any offence therein. For the purpose of
enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR.
There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the
substance of the information relating to the commission of the cognizable offence in a book kept by the
officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not
say in so many words while directing investigating under Section 156(3) of the Code that an FIR should be
registered, it is the duty of the officer in charge of the police station to register the FIR regarding the
cognizable offence disclosed by the complaint because that police officer could take further steps
contemplated in Chapter XII of the Code only thereafter.”

⮚ The same view was taken by this Court in Dilawar Singh v. State of Delhi [(2007) 12 SCC 641]. We
would further clarify that even if an FIR has been registered and even if the police has made the
investigation, or is actually making the investigation, which the aggrieved person feels is not proper,
such a person can approach the Magistrate under Section 156(3) Cr.P.C., and if the Magistrate is
 satisfied he can order a proper investigation and take other suitable steps and pass such order orders
as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under
Section 156(3) Cr.P.C.

Therefore, Section 156(3) provides for a check by the Magistrate on the police performing its duties under
Chapter XII Cr.P.C. In cases where the Magistrate finds that the police has not done its duty of investigating
the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation
properly, and can monitor the same.

Power of Magistrate to Order Further Investigation under Section 156(3): [We will discuss it later on
while discussing Section 173 of the Code]

⮚ The power in the Magistrate to order further investigation under Section 156(3) is an independent
power, and does not affect the power of the investigating officer to further investigate the case even
after submission of his report vide Section 173(8). Hence the Magistrate can order re-opening of the
investigation even after the police submits the final report. [State of Bihar v. J.A.C. Saldanha (1980) 1
SCC 554].

In our opinion Section 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are
necessary for ensuring a proper investigation, and it includes the power
(i) to order registration of an F.I.R. and
(ii) of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not
been done, or is not being done by the police.

Section 156(3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such
incidental powers as are necessary for ensuring a proper investigation.

Court used Doctrine of Implied Power in reading Section 156(3) of the Code:
It is well-settled that when a power is given to an authority to do something it includes such incidental or
implied powers which would ensure the proper doing of that thing. In other words, when any power is
expressly granted by the statute, there is impliedly included in the grant, even without special mention,
every power and every control the denial of which would render the grant itself ineffective. Thus where an
Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as
are essentially necessary to its execution.The reason for the rule (doctrine of implied power) is quite
apparent. Many matters of minor details are omitted from legislation.

As Crawford observes in his Statutory Construction (3rd edn. page 267):-

“…If these details could not be inserted by implication, the drafting of legislation would be an
indeterminable process and the legislative intent would likely be defeated by a most insignificant omission.”

⮚ In ascertaining a necessary implication, the Court simply determines the legislative will and makes it
effective. What is necessarily implied is as much part of the statute as if it were specifically written
therein.

⮚ An express grant of statutory powers carries with it by necessary implication the authority to use all
reasonable means to make such grant effective. Thus in ITO v. M.K. Mohammad Kunhi [AIR 1969 SC
430] this Court held that the income tax appellate tribunal has implied powers to grant stay, although
no such power has been expressly granted to it by the Income Tax Act.
⮚ In Savitri v. Govind Singh Rawat [(1985) 4 SCC 337] this Court held that the power conferred on the
Magistrate under Section 125 Cr.P.C. to grant maintenance to the wife implies the power to grant
interim maintenance during the pendency of the proceeding, otherwise she may starve during this
period.

In view of the abovementioned legal position, we are of the view that although Section 156(3) is very
briefly worded, there is an implied power in the Magistrate under Section 156(3) Cr.P.C. to order
registration of a criminal offence and /or to direct the officer in charge of the concerned police station to
hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper
investigation including monitoring the same. Even though these powers have not been expressly
mentioned in Section 156(3) Cr.P.C., we are of the opinion that they are implied in the above provision.

In these paragraphs Court is once again reiterating the remedies available to a person who has a
grievance that his FIR has not been registered at the police station:
⮚ We have elaborated on the above matter because we often find that when someone has a grievance
that his FIR has not been registered at the police station and/or a proper investigation is not being
done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482
Cr.P.C. We are of the opinion that the High Court should not encourage this practice and should
ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy,
firstly under Section 154(3)and Section 36 Cr.P.C. before the concerned police officers, and if that is of
no avail, by approaching the concerned Magistrate under Section 156(3).

⮚ If a person has a grievance that his FIR has not been registered by the police station his first remedy is
to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to
in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in
Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C.
instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C.
Moreover he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C. Why then
should writ petitions or Section 482 petitions be entertained when there are so many alternative
remedies?

⮚ As we have already observed above, the Magistrate has very wide powers to direct registration of an
FIR and to ensure a proper investigation, and for this purpose he can monitor the investigation to
ensure that the investigation is done properly (though he cannot investigate himself).

⮚ The High Court should discourage the practice of filing a writ petition or petition under Section 482
Cr.P.C. simply because a person has a grievance that his FIR has not been registered by the police, or
after being registered, proper investigation has not been done by the police. For this grievance, the
remedy lies under Sections 36 and 154(3) before the concerned police officers, and if that is of no avail,
under Section 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint under Section 200
Cr.P.C. and not by filing a writ petition or a petition under Section 482 Cr.P.C.

It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled
that if there is an alternative remedy the High Court should not ordinarily interfere.

In Union of India v. Prakash P. Hinduja [(2003) 6 SCC 1950], it has been observed by this Court that a
Magistrate cannot interfere with the investigation by the police. However, in our opinion, the ratio of this
decision would only apply when a proper investigation is being done by the police.

If the Magistrate on an application under Section 156(3) Cr.P.C. is satisfied that proper investigation has not
been done, or is not being done by the officer-incharge of the concerned police station, he can certainly
direct the officer in charge of the police station to make a proper investigation and can further monitor the
same (though he should not himself investigate).

Right of a person to approach SP or Other Officers Superior in Rank, If a proper investigation has not
been conducted:
⮚ It may be further mentioned that in view of Section 36 Cr.P.C. if a person is aggrieved that a proper
investigation has not been made by the officer-in-charge of the concerned police station, such
aggrieved person can approach the Superintendent of Police or other police officer superior in rank to
the officer-in-charge of the police station and such superior officer can, if he so wishes, do the
investigation [ See CBI v. State of Rajasthan [(2001) 3 SCC 333] R.P. Kapur v. Sardar Pratap Singh
Kairon [AIR 1961 SC 1117].
⮚ Also, the State Government is competent to direct the Inspector General, Vigilance to take over the
investigation of a cognizable offence registered at a police station [State of Bihar v. A.C. Saldanna]

Q. Can the Magistrate order investigation by CBI under Section 156(3) of the Code?
Ans: No doubt the Magistrate cannot order investigation by the CBI [CBI v. State of Rajasthan].

Q. Can the Supreme Court or the High Court has the power to order investigation by the CBI?
Ans: Yes the Supreme Court or the High Court has power under Article 136 or Article 226 to order
investigation by the CBI. That, however should be done only in some rare and exceptional case, otherwise,
the CBI would be flooded with a large number of cases and would find it impossible to properly investigate
all of them.

Decision on the Prayer of the Appellant in the instant Appel:

⮚ In the present case, there was an investigation by the G.R.P., Mathura and also two Courts of Inquiry
held by the Army authorities and they found that it was a case of suicide. Hence, in our opinion, the
High Court was justified in rejecting the prayer for a CBI inquiry.

⮚ In Secy., Minor Irrigation & Rural Engineering Services U.P. v. Sahngoo Ram Arya [2002 (5) SCC 521]
this Court observed that although the High Court has power to order a CBI inquiry, that power should
only be exercised if the High Court after considering the material on record comes to a conclusion that
such material discloses prima facie a case calling for investigation by the CBI or by any other similar
agency. A CBI inquiry cannot be ordered as a matter of routine or merely because the party makes
some allegation.

The Court dismissed the Appeal and held thus:

⮚ In the present case, we are of the opinion that the material on record does not disclose a prima facie
case calling for an investigation by the CBI. The mere allegation of the appellant that his son was
murdered because he had discovered some corruption cannot, in our opinion, justify a CBI inquiry,
particularly when inquiries were held by the Army authorities as well as by the G.R.P. at Mathura,
which revealed that it was a case of suicide.

⮚ It has been stated in the impugned order of the High Court that the G.R.P. at Mathura had investigated
the matter and gave a detailed report on 29.8.2003. It is not clear whether this report was accepted by
the Magistrate or not. If the report has been accepted by the Magistrate and no appeal/revision was
filed against the order of the learned Magistrate accepting the police report, then that is the end of the
matter. However, if the Magistrate has not yet passed any order on the police report, he may do so in
accordance with law and in the light of the observations made above.

⮚ With the above observations, this appeal stands dismissed.

Let a copy of this judgment be sent by the Secretary General of this Court to the Registrar
Generals/Registrars of all the High Courts, who shall circulate a copy of this Judgment to all the Hon’ble
Judges of the High Courts.
 TOPIC 3 - INVESTIGATION

Relevant Provisions: Section 155 to 176 (Chapter XII of CrPC)

Investigation is a pre-trial stage in the Criminal Justice System.

Q. Who conducts investigation?

Ans:

Q. What is the purpose of conducting investigation?

Ans:

An important stage because at this stage the prima-facie case is made against the accused by
collecting evidences and if the police is able to make a prima facie case then police report
(chargesheet) is prepared and filed before the Magistrate competent to take cognizance.

Meaning/Definition: The term 'investigation' is defined under Section 2(h) of CrPC as thus:

The investigation includes all the proceedings under the Code for the collection of evidences conducted by a
police officer.

This definition is not an exhaustive definition and it does not give a clear idea about what the investigation
includes
 Investigation of a Cognizable Case

I. Police Officer's Power to Investigate a Cognizable Case:

Sub-section (1) of Section 156 of CrPC confers wide powers on the police to investigate a cognizable offence
without the order of a Magistrate. In other wrods, for investigating a cognizable case, police does not require prior
permission of the Magistrate. Sub-section (1) of Section 156 reads thus:

156(1): Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable
case which a court having having jurisdiction over the local area within the limits of such station would have powr to
inquire into or try under the provisions of Chapter XIII.

The latter part of sub-section (1) of Section 156 determines the local jurisdiction of the police officer in charge
of a police station to investigate cognizable offences.

However, as we have already discussed under Law Relating to FIR, the police officer is required to report the
Magistrate under Section-157 (1) about the registration of a cognizable case.

Note: The Court has no power to investigate a cognizable case. It is the statutory power of the police to investigate
a cognizable case and Court has no power to interfere with such investigation. Court’s function begins with the
filing of the charge-sheet.
A Magistrate is kept in the picture at all the stages of the police investigation, but he is not authorized to interfere
with the actual investigation or to direct the police how that investigation is to be conducted. [41st Report of
Law Commission of India]

The functions of the judiciary and the police are complementary, not overlapping, and the combination of
individual liberty with due observance of law and order is only to be obtained by leaving each to exercise its own
function. [See King-Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC 18; State of W.B. v. S.N. Basak, AIR
1963 SC 447; H.N. Rishbud v. State of Delhi, AIR 1955 SC 196]
II. Initiation of Investigation:

In case of cognizable offence, the investigation is initiated by the giving of information under Section 154 to a police
officer in charge of a police station. [General Rule]

Q. Whether lodging of FIR is a pre-condition for initiation of investigation?

Ans: No, lodging of FIR is not a pre-condition for initiation of the investigationas.
Reason: Beacuse Section 157(1) of CrPC provides that when from the information received or “otherwise” the
police officer has reason to suspect the commission of the cognizable offence, then he can send a report to
Magistrate and conduct the investigation.
In other words, if from some other sources police officer comes to know about the commission of the cognizable
offence then without lodging the FIR he can proceed to the spot, initiate the investigation and record the
formal information (FIR) on his return to the police station.

Q. Is it obligatory on the police officer to conduct investigation after registration of FIR or receiving
information relating to commission of cognizable offence?
Ans: No, if after registration of FIR or receiving information relating to commission of cognizable offence, the police
officer is of the opinion that there are no reasonable grounds to investigate the case, then he can decide not to
conduct the investigation.
However, if he does not conduct the investigation then he shall report the Magistrate in this regard under Section
157.
III. Various Processes involved in Investigation

First we will try to understand various Processes involved in Investigation with the help of a flowchart and then we
will move on to discuss each process in detail.

VARIOUS PROCESSES INVOLVED IN INVESTIGATION

B. EFECTING F. On
ARREST OF Completion of
ACCUSED/SUS E. Investigation if G. After the
PECTED C. CONDUCTING INTERROGATION Evidences Completion of
A. PERSON: SEARCH: /EXAMINATION against Investigation if
PROCEEDING (i) Arrest witout (i) Search of a OF WITNESSES, Accused Person there are
TO THE CRIME Warrant Place with ACCUSED,VICTIM not Sufficient Sufficient
SCENE [Sections 41 to Warrant [Ss. 93, S etc. & Officer incharge Evidences
[Section 45, Section 100] RECORDING OF of P.O. can against the
157(1)] 60A, Section (ii) Search of a THEIR submit FINAL Accused then
& 151 - Ch. V] Place without STATEMENTS REPORT/CLOS the Officer
ASCERTAINM (ii) Arrest with Warrant [Sec. [Sections 160 to URE REPORT/ incharge of P.O.
ENT OF FACTS Warrant 165, also read 163] KHATMA shall file Police
& [Sections 70 to Sec. 166] Note: Confession CHALAAN to Report/Chargesh
CIRCUMSTAN 81 - Ch. VI] of Accused and Magistrate eet/ Challan
CES OF THE D. SEIZURE OF Statements of competent to before
CASE Note: Here, CERTAIN Witnesses can be take Cognizance Magistarte
Rights of PROPERTY recorded by [Section 169] competent to
Arrestee is a [Section 102] Magistrate [See take Cognizance
also an Sec. 164] [Sec. 173]
important
sub-topic
The Supreme Court in the case of H.N. Rishbud v. State of Delhi, AIR 1955 SC 196 has viewed that the
investigation of an offence as generally consisting of:

(1) Proceeding to the spot,

(2) Ascertainment of the facts and circumstances of the case,

(3) Discovery and arrest of the suspected offender,

(4) Collection of evidence relating to the commission of the offence which may consist of-

(i) the examination of various persons (including the accused) and the reduction of their statements into writing,

(ii) the search of places or seizure of things considered necessary for the investigation or to be produced at the trial,
and

(5) Formation of the opinion as to whether on the materials collected there is a case to place the accused before a
magistrate for trial, and if so, taking necessary steps for the same by filing of a charge-sheet under Section- 173 of
the Code.
 Detailed Discussion on the Processes Involved in Investigation

A. Proceeding to the Crime Scene [Section 157(1)] & Ascertainment of Facts & Circumstances of the Case

Upon receiving information of commission of a cognizable offence, if the officer in charge of police station has
reason to suspect the commission of such offence, he shall forthwith send a report of the same to a Magistrate
empowered to take cognizance of such offence on police report [under Section 190(1)(b)]
&
shall proceed in person or shall depute one of his subordinate officers to proceed, to the spot, to
investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and
arrest of the offender. [Read Sec. 157(1)]

Proviso (a) to Section 157(1) - When information as to commission of any such offence is given against any
person by name and the case is not of serious nature, the officer in charge of a police station need not proceed in
person or depute a subordinate officer to make an investigation on the spot (crime scene). [Police officer must
state in his report to Magistrate the reasons for not complying with the requirement of proceeding to the crime
scene [read Sub-section(2) of Section 157]

Proviso (b) to Section 157(1): If it appears to the officer in charge of police station that there is no sufficient
ground for entering on an investigation, he shall not investigate the case. [Police officer must state in his report to
Magistrate the reasons for not investgating the case and he shall also notify the informant regarding the same
[read Sub-section (2) of 157]
B. Effecting Arrest of Accused/Suspected Person

Note: We will discuss the Law Relating to Arrest including the Rights of Arrestee in a Separate Lecture.
C. Conducting Search
During investigation, police officer is empowered to conduct search of a place. Search may be conducting either with
search warrant or wihthout search warrant. Lets discuss both these modes of conducting search by Police:

(i) Conducting Search with Search Warrants:

A court having jurisdiction over the subject-matter of the proceeding may issue a search-warrant for search in any
place in India in the same way as a warrant of arrest.
Police officer is empowered to make a search of any place under the search warrant issued under Section-93 of
the Code. Sub-section (1) of Section 93 provides that the search warrant can be issued in the following
circumstances:

(i) When the order or the summons issued under Section-91 is not obeyed by the person,

(ii) When the Court has reason to believe that the order or the summons will not be obeyed;

(iii) Where the document or the thing is not known to the Court to be in possession of any person,

(iv) When the general search is required for the purpose of investigation, inquiry or trial.

Note: Section 91 of the Code confers a general power on Court and police officer to issue summons/order for
production of document or other thing which is necessary for the purposes of conducting investigation, inquiry, and
trial.Before issuing the summons the Court must satisfy itself that the document or thing required for
investigation, inquiry or trial is in the possession of the person to be summoned.
The non-compliance of the order issued u/s 91 is punishable under Section-175 of the IPC.
Other circumstances in which a search warrant may be issued are:

i) Search of a place suspected to contain stolen property, forged documents etc. [Section 94]
ii) Search of a place suspected to contain any book, newspaper or documents which the State Government has
declared to be forfeited. [Section 95]
iii) Search for the person who is wrongfully confined. [Section 97]

(ii) Search without Warrant

Section 165 of the Code empowers the police officer to make the search without any warrant. This Section
provides that when for the purpose of investigation the search a place is required and the delay
occasioned in obtaining search warrant will defeat the purpose of search, then the police officer is
empowered to make the search without obtaining the warrant. [Power u/s 165 can only be exercised in case
of cognizable offences and only after the registration of the case, not before that]
Power of search without warrant should be exercised by the police officer with great caution and only in those
cases in which the production of the document cannot be secured by adopting the procedure given under
Section 91 and Section 93.
Other instances of Search without Warrant under CrPC:

(a) Section 166 enables a police officer to effectuate search of a place located beyond the limits of his own police
station, if the exigencies of the situation so require.

(b) Where a police officer in charge of a police station has reason to believe that weights, measures or instruments
for weighing which are false, are used or kept in any place, he can inspect and search the place and seize such
things as per Section 153 of the Code.
Note 1: Section 103 of the Code empowers a Magistrate to direct a search to be made in his presence of any place
for the search of which he is competent to issue a search warrant.

Safeguards Against Search Without Warrant:

Sometimes, search may prove to be exceedingly arbitrary in character, stringent statutory conditions are imposed
on the exercise of the power. Section 165 provides certain safeguards to the person concerned in order to prevent
the arbitrary exercise of the powers.

▪ Section 165 does not permit a general search and it authorizes police officer the power to search for particular
things or documents, necessary for the purposes of the investigation.
▪ The police officer must have reasonable grounds for believing that:

(a) The thing for which search is to be made for the purposes of the investigation may be found in the place within
the limits of his police station.

(b) Such thing, in his opinion, cannot otherwise be obtained without undue delay i.e. it would be too late before a
search-warrant is obtained from a Magistrate. Therefore, the section ensures that the search by police officer is not
arbitrary and are genuinely required in cases where there is no time to approach a Magistrate for a search-warrant.

(c) The police officer before proceeding to search a place must record the grounds of his belief as to the necessity
of such search and must also specify the things for which the search is to be conducted. The non recording of
reasons for search would make the search illegal.
(d) Copies of record relating to searches made by the police officer shall be sent forthwith to the nearest Magistrate.
This requirement prohibits any kind of manipulation or fabrication afterwards.

(e) The section requires the Magistrate to furnish; free of cost, to the occupier of the place searched a copy of the
entire record furnished to him. It enables the occupier to satisfy himself as to the legality of the search.

General Safeguards against Arbitrary Search and Seizure: [With or without warrant]

Section 100 provides certain safeguards against arbitrary search and seizure, and invasion of privacy which are
applicable in all cases whether the search is with or without warrant. The safeguards are as follows:

(a) The search should be made in presence of two or more independent and respectable witnesses;

(b) A list of things seized in course of the search should be prepared and signature of the witnesses should be
obtained on it;

(c) The occupant of the place searched or his representative should be permitted to attend the search and a copy of
the search list should be delivered to him.
Constitutional Validity of Search-Warrants:
Issue 1: Whether a search-warrant is valid when issued against the accused person relating to documents or
things in his possession?
The Supreme Court in Shyamlal Mohanlal v. State of Gujarat, AIR 1965 SC 1251 has held that the term
‘person’ in Section 94 of CrPC, 1898 (now section 91 of CrPC, 1973) does not include an accused person.
Therefore, the court or police officer, as the case may be, is precluded from issuing a summons/order to an
accused person to produce any document or thing in his possession as that would be violative of Article 20(3) of
the Constitution.

A search-warrant under Section 93(1)(a) can be issued only in cases where a summons has been or might has
been issued. As the term ‘person’ in Section 91 does not include an accused, therefore, a search-warrant under
Section 93(1)(a) for the documents or things in the possession of the accused cannot be issued.

Issue 2: Whether a search-warrant is valid where it is issued for a general search or inspection of the premises in
possession or occupation of the accused person?
The question was answered by the Supreme Court way back in 1954 in M. P. Sharma v. Satish Chandra, in
following words:
“Article 20(3) of the Constitution gives protection to the accused person against testimonial compulsion. In these
cases the search and consequent seizure of the documents or other things are not the acts of the accused. Neither
the search nor the seizure is 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.”

Therefore, where a search warrant is issued under Section 93(1)(b) & (c), for particular thing or document not
known to be in possession of any person or a warrant for general search of the premises in possession of the
accused person, cannot be said to be violative of Article 20(3) of the Constitution
(iii) Procedure Relating to Search of a Place:

Section 100 of the Code provides that:

any person residing in, or being charge of such closed place shall on production of the warrant, allow free entry
and afford all reasonable means for smooth search of the place.

If there is any reasonable suspicion that any person is concealing on his person any article or thing for which the
search of a place is to be made, the person may be searched.

If the person to be searched is a woman, then the search shall be made by another woman with strict regard to
her decency

Note: Section 100 is applicable when a search is to be made of a place and not of a person.
D. Seizure of Certain Thing/Property:
Section 102 of the Code confers power on a police officer to seize certain property. In case of M.T. Enrica Lexie
v. Doramma, (2012) 6 SCC 760, the Supreme Court elaborated upon the power of police to seize any property
under Sec. 102 and held that such power can be exercised if such property is:

(a) alleged to be stolen or is suspected to be stolen or

(b) the object of the crime under investigation or has direct link with the commission of offence under investigation.

Note: Where a search warrant is issued for the search of any particular things, the person making the search has
been empowered to seize such things if recovered during such search and shall report the seizure to the
Magistrate and in case the property cannot be carried to the court, to give it to a person executing bond for its
production before the court.

Issue: [Relevant for both Search and Seizure]: Whether failure on the part of the investigating officer to comply
with the procedural requirements provided under the Code (for example safeguards provided u/s 165 etc.) will
make the search and subsequent seizure illegal
- The Courts in India has maintained the consistent view that if no prejudice is caused to the accused person such
evidence, though collected by illegal search and seizure, will be admissible in the court of law.
“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 the search 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.” [Khet Singh v. UOI, (2002) 4 SCC 380; Also see: Radhakrishan v. State of U.P., AIR
1963 SC 822; Shyam Lal Sharma v. State of M. P., AIR 1972 SC 886]
E. Interrogation /Examination of Witnesses, Accused, Victim/s and Recording of their Statements [Sections
160 to 163] including Confession of Accused and its Recording by Magistrate [Section 164]

Interrogation is an important part of the investigation. While conducting the investigation for the purpose of
gathering the facts of the case, collection of evidences and recording of statements various person need to be
interrogated and their statements ought to be recorded. Lets discuss Section 160 to 164 in detail:

(i) Statutory Power of Police Officer to Require Attendance of any Person: [Section 160]

Section-160 provides for the power of the police officer, making the investigation, to require the attendance
before himself of any person acquainted with the facts and circumstances of the case by issuing a written
order.

It is mandatory to appear in fulfillment of the order issued under this Section. As this sub-section (1) provides
“such person shall attend as so required”.

The non-compliance with the order issued under sub-section (1) is punishable under Section-174 of the IPC.

Q. Could you point out some inconsistency between the heading of Section 160 which reads, “Police officer’s
power to require Attendance of Witnesses” and the main body of the Section?

Q. How will you interpret the words 'any person' used in Section 160 of the Code?
Exception to the Power of Police Officer to Require Attendance of any Person is provided under the
Proviso to Section 160(1) of CrPC, which reads thus:
A male person below the age of 15 years or above the age of 65 years or a female person (of any age) or a
mentally or physically disabled person cannot be ordered to appear in the police station. These persons can be
interrogated by the police officer at the place of their residence.

In this regard, it is relevant to mention Proviso to Section-157(1), which was inserted by the Criminal Procedure
(Amendment) Act, 2008, which provides thus:

In case of offence of rape the statements of the rape victim shall be recorded at the place of her residence or any
other place of her choice and as far as practicable by a woman police officer in presence of her parents or guardian
or near relatives or social worker.

(ii) Examination of Any Person by the Police Officer: [Section 161]

Sub-section (1) of Section 161 reads thus:

161. Examination of Witnesses by Police:
(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as
the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such
officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the
case.

Comments: Though the heading of Section-161 is “Examination of witnesses by police”, but the main the body
of this Section suggests that the police officer is empowered to examine “any person” acquainted with the facts
and circumstances of the case either at the police station or at the place of their residence or any other place
 During investigation the police may examine a person who subsequently becomes an accused under this
sub-section. Though, no statement made by such accused to a Police officer during investigation shall be
admissible in evidence at the trial, by the reason of Section 162 except under Sections 27, 32 and 145 of the
Evidence Act.

Sub-section (2) of Section 161 reads thus:

Such person shall be bound to answer truly all questions relating to such case put to him by such officer,
other than questions the answers to which would have a tendency to expose him to a criminal charge or to a
penalty or forfeiture.

Comments:
Police officer can ask any question from the person being examined and he/she shall be bound to give the
answer truly.

Furnishing of the false information is punishable under Section-202 and Section-203 of the IPC and refusing to
give the answer is punishable under Section-179 of the IPC.

The later part of Sub-section (2) provides a protection to any person being examined/interrogated by the police
that the questions the answer to which would have a tendency to expose him to a criminal charge or to a penalty
or forfeiture need not to be answered.

Q. What is the reason for giving the above-mentioned protection under sub-section (2) to any person being
examined/interrogated by Police at the stage of investigation?
Sub Section (3) of Section 161 provides that:
The police officer may reduce into writing any statements made to him in course of an examination under this
Section; and
if he does so, he shall make a separate and true record of the statement of each such person whose statement
he records.

The Investigating Officer should record the statements of witnesses promptly. Such prompt recording of the
statements avoids the contradictions and suspicions.

Provisos to Sub-section (3):

First proviso empowers the police officer for the recording of statements through the mode of audio-video
electronic means. [inserted by the Criminal Procedure (Amendment) Act, 2008]

Second Proviso provides that the statement of a woman against whom an offence under section 354, section
354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376AB, section 376B,
section 376C, section 376D, section 376DA, section 376DB, section 376E or section 509 of the Indian Penal
Code (45 of 1860) is alleged to have been committed or attempted shall be recorded, by a woman police
officer or any woman officer. [Inserted by the Criminal Law (Amendment) Act, 2013; and some changes were
made by the Criminal Law (Amendment) Act, 2018]
(iii) Evidentiary Value of the Statements Made to & Recorded by the Police Officer at the Stage of
Investigation [Section 162]

Sub-section (1) of Section-162 provides that the statements made to the police officer need not to be signed
by the maker of it. In this regard the relevant part of this Sub-section reads thus:

No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if
reduced to writing, be signed by the person making it; [because these may be extracted by the police by using
the unlawful means. These statements are not made of oath].

These statements cannot be used as the substantial piece of evidence at the stage of trial and the guilt of
the accused cannot be determined only on the basis of these statements. In this regard later part of
Sub-section (1) reads thus:

“nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such
statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any
offence under investigation at the time when such statement was made.”.

But these statements can be used only for the purpose of Section 145 of the Evidence Act. Under the proviso to
Sub-section (1) of section 162, it is provided that these statements can be used by the accused or, with the
permission of the Court, by the prosecution against the maker of it when he appears as a witness to contradict
him.

In other words, these statements can be used for impeaching the credibility of the witness by establishing the
contradiction between his previous statements made at the stage of investigation and the statements made
before the Court at the stage of trial. But these statements cannot be used by the prosecution for the
 When any part of such statement is used to contradict the maker of the statement (u/s145 of the Evidence Act),
any part thereof may also be used in the re-examination of such witness, but for the purpose only of
explaining any matter referred to in his cross-examination.

Exceptions to the General Rule that Statements Recorded under Section 162 are not Admissible as
Evidence: [Sub-Section (2) of Section 162]

First Exception: When the maker of it dies after making the statements and the statements reveals the cause of
his death or the circumstances in which his death was caused then the statements are admissible as evidence
under Section-32(1) of the Evidence Act.

Second Exceptio: When these statements leads to discovery of certain articles or things then those statements are
admissible as an evidence under Section-27 of the Evidence Act.

(iv) No Inducement to be Offered by Police Officer to any Person Making Statement [Section 163]

At the stage of the investigation police officers are empowered to interrogate any person and can ask any
question and that person is bound to give the answer truly but for extracting the answers no police officer
shall make any inducement, threat or promise to the person to be interrogated. [Section 163(1)]

The statements made by the persons to the police officer must be out of their own free will. However it is not
required that the police officer shall caution a person from making any statement which he makes out of his own
free will. [Section 163(2)]
(v) Recording of Confessions and Statements by the Magistrate [Section 164]
Section-25 of the Evidence Act provides that a confession made to the police officer is not admissible as
evidence. If at the stage of the investigation a confession is made by the accused to the investigating officer or
any other police officer that cannot be used against the accused at the stage of trial.

Section-164 of the Code provides a solution to this problem as it empowers the judicial magistrate or the
metropolitan magistrate for the recording of the confession and statement at the stage of the investigation and
that shall be admissible as evidence. Sub-section (1) of section 164 reads thus:

“Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record
any confession or statement made to him in the course of an investigation under this Chapter or under any
other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial:

First Proviso: Any confession or statement made under this sub-section may also be recorded by audio-video
electronic means in the presence of the advocate of the person accused of an offence

Second Proviso: No confession shall be recorded by a police officer on whom any power of a Magistrate has been
conferred under any law for the time being in force.

Before recording the confession the magistrate is required to inform the accused that he is not bound to make the
confession and if he makes it, it can be used against him and even after giving this information if the accused is
willing to make the confession only then he shall record it. [Sub-section (2) of Section 164]
 If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not
willing to make the confession, the Magistrate shall not authorise the detention of such person in police
custody. [Sub-section(3) of Section 164]

Manner of Recording Confession: [Sub-section(4) Section 164]

Any confession u/s 164 shall be recorded in the manner provided in Section 281 for recording the examination of an
accused person and shall be signed by the person making the confession; and the Magistrate shall make a
memorandum at the foot of such record to the following effect:
"I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may
make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in
my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it
contains a full and true account of the statement made by him.”
(Signed) AB Magistrate

Therefore, Before recording the statement the magistrate must satisfy himself that the accused is making the
confession out of his own free will and without any threat by the police officer.

Confession should be recorded in the language of the accused (as far as possible) or in the language of the Court.
But the contents must be shown to the accused and be explained to him in his language by the Magistrate.

Thereafter, it should be signed by the accused and the Magistrate who will also certify that he has recorded the
confession truthfully and nothing has been left over or added
Manner of Recording Any Statement (Other than a Confession) [Sub-section (5) of Section 164:

Any statement (other than a Confession) made by the witnesses to the police officer at the stage of investigation
are not admissible as evidence because of the effect of Sectio-162 of the Code. But Section-164(5) provides that if
those statements are recorded by the magistrate then that is admissible as evidence. Sub-section(5) reads thus:

“Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner
hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the
circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement
is so recorded.”

So, whenever it appears to the police officer that the statements of some witness/s are relevant at the stage
of trial, he can produce them before the magistrate who can record the statements.

Note: The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by
whom the case is to be inquired into or tried. [Sub-section (6) of Section 164]

Confession recorded by the Magistrate is not a substantive piece of evidence. It has to be fully proved in trial
court by the Magistrate who recorded it and it may be tested by cross-examination of the Magistrate.

The provisions of Sec.164 applies only to the confession or statement made before a Magistrate, during
investigation and before the inquiry and trial. When a confession is made during trial, the provision of Section
281 is applicable.
Special Procedure for Recording the Statement of Victim of any Sexual Offence/s: [Sub-section (5A) of
Section 164]

Section 164(5A) (Clause a) reads thus:

In cases punishable under section 354, section 354A, section 354B, section 354C, section 354D, sub-section (1) or
sub-section (2) of section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section
376DA, section 376DB, section 376E or section 509 of the Indian Penal Code (45 of 1860),
the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in
the manner prescribed in sub-section (5), as soon as the commission of the offence is brought to the notice of the
police:

If the person making the statement is temporarily or permanently mentally or physically disabled:
▪ the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement
▪ the statement shall be videographed.

Section 164(5A) (Clause b) provides that:

A statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically
disabled, shall be considered a statement in lieu of examination-in-chief, as specified in section 137 of the
Indian Evidence Act, 1872 (1 of 1872) such that the maker of the statement can be cross-examined on such
statement, without the need for recording the same at the time of trial.
F. On Completion of Investigation if Evidences against Accused Person not Sufficient the Officer Incharge
of Police Station can submit FINAL REPORT/CLOSURE REPORT/ KHATMA CHALAAN to Magistrate
competent to take Cognizance & Release the Accused Person if he/she is in Custody [Section 169]

First lets look at Section 169 of the Code which reads thus:

If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that
there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused
to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or
without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to
take cognizance of the offence on a police report, and to try the accused or commit him for trial. [The last part of
this provisions is little confusing]

When on the completion of the investigation it is found by the investigating officer that the evidences against the
accused are not sufficient for forwarding him before the Magistrate for trial, then he can submit a report in this
regard under this Section. This report is called “the Final Report or the Summary”. It is also called “Closure
report or Khatma Chalaan”.

Note: It is the jurisdiction of the IO whether to file the final report (FR) under Sec. 169 of the Code or to file police
report/charge sheet under Sec. 173 of the Code.

Now Answer the following Question: Can the Court compel the investigating officer to file the charge-sheet
under Section-173?
Q. What are the options available to Magistrate when Final Report is filed by Police under Section 169?

Following options are open for the Magistrate when Final Report is filed:

(i) The Magistrate can accept the Final Report and close down the case and release the accused. However,
before releasing the accused under Section-169, the Magistrate is required to give a notice to the informant or the
victim.

(ii) The Magistrate can reject the Final Report as he is not bound to accept it.

(iii) The Magistrate can order the investigation under Section 156(3) if it appears to him that the further
investigation is required for the collection of evidences.

(iv) The Magistarte can take the cognizance of the matter under Section-190(1)(c) or on the initial complaint. [The
Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his
mind to the facts emerging from the investigation and take cognizance of the case].

Note: After perusal of the final report, the Magistrate may call for the case diary of the investigating officer to make
up his mind whether the investigation has been properly conducted.

Q. Is there any remedy availlable to the informant or victim if IO has filed the Final Report under Section 169? If
yes, discuss the remedy.
Ans: Yes. The remedy is as follows: When a Final Report is filed under this Section the informant or the victim can
file the “Protest petition/ Naraazgi” against that report and the Magistrate can treat it as a complaint and can take
cognizance of the case.
Q. Whether a Magistrate after accepting a final report submitted by the Police can take action on the basis of the
protest petition filed by the complainant/first informant?

[See: Decision of Supreme Court in Rakesh Kumar and Anr. v. State of U.P. and Anr. (2014)]
G. After the Completion of Investigation if there are Sufficient Evidences against the Accused then the
Officer Incharge of Police Station shall file Police Report/Chargesheet/ Challan before Magistarte
competent to take Cognizance.
Relevant Provision: Section 173 (read it with Section 170) of the Code

After the completion of the investigation if there are sufficient evidences against the accused, then the IO shall
forward him before the Magistrate along with a report prepared under Sec.173. This report is popularly known as
“the Investigation Report/ Charge-Sheet/ Challan”.

Q. What are the ingredients of Charge-sheet?

Ans: According to Section 173(2)(i) as soon as investigation is completed, the officer in charge of the police
station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in
the form prescribed by the State Government, stating:

(a) the names of the parties;

(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so,by whom ;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, weather with or without sureties;
(g) whether he has been forwarded in custody under section170
(h) whether the report of medical examination of the woman has been attached where investigation relates to an
offence under section 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB,or section 376E of the Indian Penal
Code (45 of 1860)]
Important Point: The officer shall also communicate, in such manner as may be prescribed by the State
Government, the action taken by him, to the person, if any, by whom the information relating to the commission of
the offence was first given. [Sec. 173(2)(ii)]

Q. What are the powers of Magistrate when charge sheet is filed under Setion 173 by the officer incharge of the
police station?

Ans:
On the basis of the charge sheet filed under Sec. 173 the Magistrate is empowered to take the cognizance of
the case under Sec.190(1)(b).

Magistrate is not bound to take Cognizance on the chrgesheet filed by the Police. [ But if the Magistrate is
not inclined to take cognizance of the offence, he must give the informant an opportunity to be heard
at the time when the report is considered by the Magistrate, so that the informant may make his
submissions]

If it appears to him that there are no reasonable grounds for taking cognizance on the basis of the report then
he can order for the further investigation under Section-156(3).
Further Investigation by Investigation Officer [Section 173(8)]

After the submission of charge sheet, Investigation Officer is empowered to do further investigation under Sec.
173(8) if he/she discovers some new facts and it appears to him/her that a further investigation is necessary for
the purpose of collection of some new evidences.

After completion of further investigation IO can submit an additional report, this is called “the Supplementary
Report or the
Supplementary Challan”

Issue: Whether Sub-section (8) of Sec. 173 empowers the IO only to conduct the further investigation and does not
empower the Magistrate to order the further investigation under this Section after taking cognizance of the case.

Point to Remember for answering this issue: The Magistrate can order the further investigation under
Section-156(3) before taking cognizance of the case on the basis of investigation report if it appears to him that prima
facie no offence appears to have been committed in the report.

Issue: Whether further investigation after the submission of charge sheet is the discretionary power of the IO or can
it be demanded by the prosecution or the informant as a matter of right?
 Case Diary, its Importance in Investigation & its Evidentiary Value:
Sec.172 of the Code provides for the maintenance of the case diary by IO while conducting the investigation. While
conducting the investigation police officer performs various functions such as:
proceeding to the spot,
sketching the map,
ascertaining the facts and circumstances of the case,
recording the statements on the spot,
issuing orders under Sec.160,
recording the statements under Section-161,
making searches etc.
All these steps taken by the IO need to be recorded in the case diary.
▪ For making the whole process of investigation accountable on the part of the investigating officer, Sec. 172
provides for the maintenance of the case diary.

Contents of Case Diary:

▪ It is maintained on day-to-day basis. All the dates, time and other details of the work done in relation to the
investigation need to be mentioned in this diary. The time at which the information reached to the investigating
officer and the time at which he began and closed the investigation need to be mentioned.
▪ All the places visited by the investigating officer are mentioned in it. The statements of the witness recorded by
the investigating officer are copied in it. All the expert reports obtained at the stage of investigation are mentioned
in it.
▪ After the completion of the investigation the grounds on which the investigating officer forms his opinion for
submitting the charge-sheet is also mentioned in it.
Evidentiary value of Case Diary:
The case diary is not a substantial piece of evidence; it can be used only as secondary evidence. In other
words, it is not a substantive piece of evidence of any date, time, fact or statement contained in it.
The Court cannot make use of anything contained in the Case Diary in support of the judgment.
The Diary may be given to the Investigating Officer to refresh his memory.
the accused will not have a right to inspect the case diary, even though that is referred by the Court as aid at the
inquiry or trial.
The accused gets the right to cross examine the Investigating Officer with regard to the case diary, if it is
used by the IO to refresh his memory or by the Court for the purpose of contradicting the IO.

Q. Is Case Diary different from General Diary? What are the contents of General Diary/Station Diary?

Ans: Yes Case Diary is different from General Diary bacause in the General Diary all the events of a police station
are mentioned. General Diary is maintained under Section- 44 of the Police Act. Further, Case Diary is maintained
by the Officer-in-charge of the Police Station, while the Case Diary is maintained by every police officer investigating
the case. Following are the contents of the General Diary:
(i) All complaints made and the information given at the Police Station,
(ii) The names of the complainants or the informants,
(iii) The names of all the persons arrested,
(iv) The offences alleged to have been committed by them,
(v) The arms and weapons forfeited,
(vi) The names of witness examined
 Inquest Report-Section 174

The report given after investigation under Sec.174 of the Code is called as “the inquest report”. The object of this
report is to reveal the apparent cause of the death of a person.

Section-174 (1) provides that - when the officer in charge or some other police officer specially empowered
receives an information that:

a person has committed suicide, or has been killed by another or by animal, or by machinery, or by an accident, or
has died under circumstances raising a reasonable suspicion that an offence has been committed in relation to him
then

he shall immediately inform the nearest Executive Magistrate, empowered to hold inquest, about the information
received and proceed to the spot to conduct the investigation.

On the spot of death the police officer shall conduct the investigation in presence of two or more respectable
member of that locality to ascertain the apparent cause of the death describing such wounds, fractures, bruises and
other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument,
such marks appears to have been inflicted

Note: The report shall be signed by such police officer and other persons, or by so many of them as concur therein,
and shall be forthwith forwarded to the District Magistrate or the Sub-divisional Magistrate. [Sub-section (2) of
Section 174]
Circumstances in which Dead Body is Forwarded to Nearest Civil Surgeon for Medical Examination
(Post-Mortem)
According to Sub-section (3) of Section 174: When -
(i) the case involves suicide by a woman within 7 years of her marriage; or

(ii) the case relates to the death of a woman within 7 years of her marriage in any circumstances raising a
reasonable suspicion that some other person committed an offence in relation to such woman; or

(iii) the case relates to the death of a woman within 7 years of her marriage and any relative of the woman has
made a request in this behalf; or

(iv) there is any doubt regarding the cause of death; or

(v) the police officer for any other reason considers it expedient so to do [Discretionary power given to the
Police officer]

he shall, subject to such rules as the State Government may prescribe in this behalf, forward the body, with a
view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this
behalf by the State Government, if the state of the weather and the distance admit of its being so forwarded without
risk of such putrefaction on the road as would render such examination useless.

Object of the inquest: To ascertain the apparent cause of the death and not to conduct the detailed
investigation for the purpose of ascertaining the names of accused or for arresting the accused or for
ascertain the names of witnesses.
Inquiry by Magistrate into cause of death [Section 176]

Following are the circumstances in which Magistrate is Empowered to Hold a Magistrial Inquiry:

I. According to Sub-section (1) of Section 176: When:

(i) the case involves suicide by a woman within seven years of her marriage; or
(ii) the case relates to the death of a woman within seven years of her marriage in any circumstances raising a
reasonable suspicion that some other person committed an offence in relation to such woman

the nearest Magistrate empowered to hold inquests shall, and in any other case mentioned in sub-section (1) of
section 174, any Magistrate so empowered may hold an inquiry into the cause of death either instead of, or in
addition to, the investigation held by the police officer; and if he does so, he shall have all the powers in conducting it
which he would have in holding an inquiry into an offence. [Under this sub-section inquiry is done by Executive
Magistrate]

II. According to Sub-section (1A) of Section 176:

Where,—
(a) any person dies or disappears, or
(b) rape is alleged to have been committed on any woman,

while such person or woman is in the custody of the police or in any other custody authorised by the Magistrate or
the Court, under this Code in addition to the inquiry or investigation held by the police, an inquiry shall be held by
the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, within whose local jurisdiction the
offence has been committed.
Where an inquiry is to be held under section 176, the Magistrate shall, wherever practicable, inform the relatives
of the deceased whose names and addresses are known, and shall allow them to remain present at the
inquiry.[Sub-section(4)]

The Judicial Magistrate or the Metropolitan Magistrate or Executive Magistrate or police officer holding an inquiry
or investigation, as the case may be, under sub-section (1A) shall, within twenty-four hours of the death of a
person, forward the body with a view to its being examined to the nearest Civil Surgeon or other qualified
medical person appointed in this behalf by the State Government, unless it is not possible to do so for reasons to
be recorded in writing. [Sub-section(4)]

In Section 176 the expression "relative" means parents, children, brothers, sisters and spouse.
 Procedure when Investigation cannot be Completed in Twenty-Four Hours [Section 167]
The Relevant Parts of Sectio167 reads thus:
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. [Sub-section (1)]

The Magistrate to whom an accused person is forwarded under this section may................ authorise the
detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding 15 days in the
whole............[Sub-section (2)]
According to Proviso (a) of Section 167(2) the Magistrate may authorise the detention of the accused
person, otherwise than in custody of the police, beyond the period of 15 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) 90 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) 60 days, where the investigation relates to any other offence,

on the expiry of the said period of 90 days, or 60 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 so released under the provisions of Chapter XXXIII for the
purposes of that Chapter
 No Magistrate shall authorise detention of the accused in custody of the police under this section unless the
accused is produced before him in person for the first time and subsequently every time till the accused
remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on
production of the accused either in person or through the medium of electronic video linkage. [Proviso
(b) to Section 167(2)]

No Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise
detention in the custody of the police. [Poviso (c) to Section 167(2)]

Note: In case of a woman under eighteen years of age, the detention shall be authorised to be in the custody
of a remand home or recognised social institution.

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.
Forwarding the Accused and Case Diary to Nearest Executive Magistrate in Case Judicial Magistrate is not
Available [Sub-section (2A) of Section 167]
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 case diary relating to
the case, and shall, forward the accused to such Executive Magistrate, and

such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused
person in such custody as he may think fit for a term not exceeding 7 days in the aggregate; and,

on the expiry of the period of detention so authorised, 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 no 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)
 Before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial
Magistrate the records of the case together with 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.
[Proviso to Sec. 167(2A)]

A Magistrate authorising under this section detention in the custody of the police shall record his reasons for
so doing. [Sub-section (3)]

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. [Sub-section (4)]

Procedure if Investigation not Concluded within a Period of Six Months in a Summon Case [Sub-section(5)
of 167]

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.

Note: 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.
[Sub-section (6) of 167]
Comments on Section 167:

Article 22(2) provides that no person can be detained beyond the period of 24 hours without producing him
before the nearest Magistrate. Section-167 of the Code fulfils this constitutional mandate.

When a person is arrested and the investigation can be completed within the period of 24 hours, he can be
produced before the Judicial Magistrate along with the charge-sheet.

But when the investigation cannot be completed within 24 hours and the detention of the person is required
beyond that period then the procedure is given under Section-167. In this case the police officer shall produce
that person before the nearest Judicial Magistrate and can demand for the detention/remand of the accused.

It is the responsibility of the police officer to satisfy the Magistrate why the detention of the accused beyond the
period of 24 hours is required. If the Magistrate is satisfied he can authorize the detention either in police
custody (police remand) or the judicial custody (judicial remand) maximum for the period of 15 days.

The arrestee can be produced before any Judicial Magistrate, whether he has the jurisdiction or not.

Before authorizing the detention beyond the period of 24 hour, the Magistrate must apply his mind and should
not authorize the detention only on the application of the police officer.
 Options Open to Magistrate when the Accused is Produced before Him/Her: when the accused is
produced before a Magistrate it becomes the Court’s responsibility and power to order whether he is to be
remanded to further custody or granted bail or released altogether. This power of the Court cannot be
exercised only on the discretion of the investigating agency.
If the investigation cannot be completed within the period of 15 days and the detention of the accused is
required beyond that period, then the accused need to be produced before the Judicial Magistrate having
jurisdiction and such Magistrate, if satisfied as to why the further detention is required, may authorize the
further detention in the judicial custody. The detention beyond the period of 15 days cannot be authorized in
police custody.
No Magistrate shall authorize the detention of the accused person for a total period of exceeding:
(i) 90 days, in case of the offence punishable with the death penalty or life imprisonment or imprisonment for a
term not less than 10 years,
(ii) 60 days, in case of the other offences

How to Compute this Period of 90 days and 60 days: This period of 90 days/ 60 days is inclusive of the first
15 days period of remand. Means after the completion of the 15 days of remand, the accused can be detained
maximum for a further period of 75 days/ 45 days.

Q. Whether the period of 90 days/ 60 days remand shall be computed from the date of the first remand order or
from the date of his arrest?
Ans: The words used in proviso (a) to Section-167(2) are “no Magistrate shall authorize the detention of the
accused person in custody, under this paragraph for a total period exceeding i.e. 90 days/60 days.” Detention can
be authorized by the Magistrate only from the time the order of remand is passed. The earlier period, when the
accused is in custody of a police cannot constitute detention pursuant to an authorization issued by the Magistrate.
Therefore the total period of 90 days/ 60 days can begin to run only from the date of order of remand.
 Under Section-167 the accused can be ordered to be detained only at the stage of investigation. Once the
Magistrate takes the cognizance of the matter after the completion of the investigation then at the stage of trial the
detention of the accused can be authorized under Section-309 of the Code.

If no Judicial Magistrate is available then the accused can be produced by the police officer before the Executive
Magistrate and he is also empowered to authorize the detention of the accused maximum for a period of 7 days.

If the investigation cannot be completed within the period of 90 days/ 60 days and the accused is in custody then
after that period he shall be entitled to be released on bail. In that circumstance it is not the discretion of the Court
but the right of the accused to be released on bail.

Note: Once the investigation is complete, the charge-sheet is filed and the Magistrate takes the cognizance then the
bail cannot be claimed as a matter of right under Section-167. If the period of 90 days/60 days is complete and the
bail application is not filed and in the mean time the charge-sheet is filed then it shall not be the right of the accused
to be released on bail.
Situation in which Police can do Investigatio in a Non-cognizable Case:
Relevant Provision: Section 155

When the information relating to the non cognizable offence is given to the officer in charge of the police station
then he shall record the information in a book kept for that purpose and refer the informant to the Magistrate for
seeking the further orders. [Sub-section (1)]

In case of non-cognizable offence, the police officer has no power to conduct the investigation without the order
of the Magistrate. [Sub-section (2)]

If an order is issued by the Magistrate for the investigation in such cases then the police office will have the
same powers to investigate as in case of cognizable offences, but he shall not have the power to make arrest
without warrant. [Sub-section (3)]

Following is an exception to the General Rule that in case of non-cognizable offence police officer cannot
conduct the investigation without the order of the Magistrate:

When the information reveals the commission of two or more offences, of which at least one is cognizable
offence, then the whole case shall be treated as the cognizable case and the police officer will have the power to
conduct the investigation without the order of the Magistrate with respect to all the offences. [Sub-section (4) of
Section 155]
 Circumstances in which Magistrate can Order the Police Officer to Conduct the Investigation:

There are certain circumstances in which Magistrate can order the police officer to conduct the investigation. These
are as follows:

1. When the Magistrate receives a complaint under Section 190(1)(a) then before taking the cognizance, he can
order under Section-156(3) the investigation to be made in that case. On receiving the complaint the Magistrate is
not bound the take the cognizance. As Section 190 uses the term “may” and if it appears to the Magistrate that
before taking cognizance the investigation is required to be made then he can order the police officer to conduct the
investigation. When the police report (charge-sheet) is submitted in that case and the magistrate takes the
cognizance upon that report then that case it treated as a case instituted on police report and not on complaint.

2. When the Magistrate takes cognizance under Section-190(1)(c) upon some other information received and it
appears to him that an investigation in the case is required then he can order the investigation under
Section-156(3).

3. When the Magistrate receives a complaint under Section-190(1)(a) and after taking the cognizance upon that
complaint, i.e. after examining the complainant under Section 200, it appears to magistrate that an investigation is
required to made then he can order the investigation under Section-202. This case shall be treated as the case
instituted on the complaint only, as in this situation Magistrate had all ready taken the cognizance upon the
complaint and after that the investigation is ordered and police report is submitted.
4. After receiving the information by the police officer relating to the cognizable offence, if there appears no
reasonable ground to him to investigate the case and he does not conduct the investigation then he shall report the
Magistrate in this regard under Section-157 and upon that report if it appears to the Magistrate that an investigation
is required to be made in the case then he can order the investigation under Section-159 of the Code.

5. If the Final Report or the closure report is submitted by the investigating officer under Section 169 on the
discovery of insufficient evidences to prove the guilt of the accused and it appears to the Magistrate that the further
investigation is required for the discovery of evidences then he can order the investigation under Section156(3) of
the Code.

6. When the investigation report/charge-sheet is submitted by the investigation officer under Section 173 and it
appears to the Magistrate that there are no sufficient grounds in the report submitted for taking the cognizance,
then he can order for the further conduction of the investigation under Section-156(3).
 Stopping/ Quashing Investigation Proceeedings

If commission of a cognizable offence is reported, an investigation into the offence must necessarily follow in the
interest of justice and the court will not normally interfere with the investigation and will permit the investigation to be
completed.

However, if the materials do not disclose an offence, an investigation cannot be permitted, as any investigation, in
the absence of any offence being disclosed will result in unnecessary harassment to a party whose liberty and
property may be put in jeopardy for nothing.

In such a case the High Court in the exercise of its powers under Article 226 of the Constitution of India or under
Section 482 of the Code may stop and quash the investigation proceedings.
See: State of W.B. v. Swapan Kumar Guha, (1982) 1 SCC 561

Fair Investigation a Part of Fundamental Rights guaranteed under Art. 20 and 21 of the Constitution of India.
Not only fair trial but fair investigation is also part of fundametal rights guaranteed under Articles 20 and 21 of the
Constitution of India. Therefore, investigation must be fair, transparent and judicious as it is the minimum
requirement of law. The investigating agency cannot be permitted to conduct an investigation in a tainted and
biased manner. Where non-interference of the Court would ultimately result in failure of justice, the Court must
interfere. In such a situation, it may be in the interest of justice that an independent agency chosen by the High
Court makes a fresh investigation. [Babubhai v. State of Gujarat, (2011) 1 SCC 336]
 A Brief Note on Judicial Custody and Police Custody:

Introductory Remarks

⮚ During the course of investigation, if any person is arrested or detained in the police custody, the
investigation is to be completed within twenty four hours and if it could not be completed the
investigating officer has to produce the arrestee to the nearest Judicial Magistrate.

⮚ Thus the persons arrested by the police can be produced before a Judicial Magistrate whether he
has power to try the case or has not. Role of Magistrate as regards to the accused commences at
this stage.

⮚ Under Section 167 of the Cr.P.C. the Magistrate authorizes the detention of arrestee, in such
custody as he thinks fit.

Note: Theoretically, the person arrested can be ordered to be detained in the custody of any person as
per the discretion of the Magistrate.

⮚ As per Section 167 (2) of the Cr.P.C. the Magistrate can authorize the detention of the accused
person either in police custody or otherwise than in custody of police.

Object of requiring the accused to be produced before the Magistrate: To enable the Magistrate
to decide judicially whether remand is necessary and also to enable the accused to make any
representation to the Magistrate to controvert the grounds on which the police officer has asked for
remand.

⮚ Order of the detention is not to be passed mechanically as a routine order on the request of the
police for remand. In other words, the Magistrate has to exercise his judicial discretion while
deciding whether or not the detention of the accused in any custody is necessary. He shall
scrutinize all the papers including the entries in the case diary before authorizing the detention of
the accused in the custody and it is obligatory on his part to record the reasons for it

Though the Cr. P.C. did not specify the persons under whom or place where the arrestee can be
detained in the custody “otherwise than in police custody” as the practices goes, in majority of
the cases it is only the judicial custody. Thus it is necessary to understand the nature of the
judicial and police custody:

(A) Judicial Custody:

⮚ Though ‘Judicial Custody’ is not mentioned in section 167 of the Cr.P.C, it is being commonly
used in the language of law practice and academia.

⮚ The Magistrate, on production of the accused before him may order that he be kept in the
judicial custody and on such order the accused is kept in a jail. This is known as judicial
custody and during this period the police usually can not have any access to the accused,
except under a specific order by the court.

⮚ An accused can be detained in the judicial custody during the investigation or trial.
Note: When the person detained in judicial custody is sentenced to imprisonment for a term, the
period of detention undergone by him during the investigation, inquiry or trial of the case shall be set
off against the term of imprisonment awarded to him and he shall be liable to serve the remainder of
the sentence only.[See, Section 428 of the Code]

It is to be noted that the judicial custody of an accused can be ordered under section 167 of the
Cr.P.C. only during the course of the investigation and such custody can be ordered under section
209(a) and (b) of the Cr.P.C if it is before committing the case the Court of Session by the
Magistrate and under section 309 (2) of the Cr.P.C if it is during the trial. The purpose of detention
differs from one category to another.

(B) Police Custody:

⮚ As it is seen, under section 167 of the Cr. P.C. the Magistrate can order detention of the accused
in such custody as he thinks fit. Thus, the Magistrate can authorize the detention of the
accused in the police custody.

⮚ Unless a person is remanded to the judicial custody, the court cannot order the detention of the
accused in the police custody.

⮚ Section167(2) is interpreted to the effect that the nature of custody can be altered from judicial
custody to police custody and vice versa during the first period of 15 days mentioned there in.

In Central Bureau of Investigation v. Anupam J Kulkarni, (1992)3 SCC 141,the Supreme Court
made it clear that police remand should not be resorted to after 15 days and after the first remand
period the court can authorize the detention of a person only in the judicial custody. Police custody
can be ordered by any Magistrate of First Class or Chief Judicial Magistrate and in case the Judicial
Magistrate of First Class authorizes the detention in the police custody, it is obligatory on his part to
forward the copy of the order to the Chief Judicial Magistrate as per section 167(4) of the Cr. P.C.

⮚ Earlier judgments (See, Jai Singh v. Emperor, AIR 1932 Oudh 11, Queen Emperor v. Engadu,
ILR 11 Madras 98) on granting the police custody reveals that the law was strongly against
granting of the police custody after the arrest and the dominant opinion was that only in rare
cases after judicial evaluation of special circumstances and that too for limited periods as the
necessities of the case may require, police custody could be granted.

⮚ But the enormous growth of crime, particularly the growth of economic and financial crimes, the
number of cases in which the police custody is being sought for is on increase. The complexity
in modern day crime is another reason for such increase.

Note: The Code does not mention the circumstances in which the court can authorize the detention
of the arrestee in the police custody and leaves it to the discretion of the Magistrate. The discretion is
to be exercised judiciously and thus the decision depends upon the facts of the case in connection
with which the person is detained. By and large it can be said that only in case of absolute necessity
the court can order the detention of the arrestee in the police custody.

⮚ Usually, whenever the police custody is ordered, the Magistrates impose conditions. The
conditions include directions not use third degree methods, medical examination prior to and on
expiry of police custody, making legal counsel available during the investigation etc.
Nandini Sathpathi v. P.L. Dani, (1978)2SCC 424, is the leading case on the presence of the lawyer
for consultation during the interrogation, in order to protect his right against self incrimination

However in Senior Revenue Intelligence Officer v. Jugal Kishore Samra, (2011)12 SCC 362,
Supreme Court doubted the dictum of Nandini Sathpathi case and ordered that “the interrogation of
the respondent may be held within the sight of his advocate or any other person duly authorized by
him. The advocate or the person authorized by the respondent may watch the proceedings from a
distance or from beyond a glass partition but he will not be within the hearing distance and it will
not be open to the respondent to have consultations with him in course of the interrogation.”

Comment: The mere presence of the advocate without the opportunity for being consulted will be of
no use and does not serve any purpose.
 B. Law Relating to Arrest and Rights of Arrestee

Introductory Remarks:

Process of arrest confers on the police a power to interfere with a person’s freedom from physical
restraint. In other words, in the process of arrest State is empowered to interfere with the
personal liberty of a person.

However, if we look at this power with a view to secure a crime free society then arrest is a process
that ensures:
 effective conduct of investigation,
 prevention of further criminal designs and
 availability of the accused for trial and consequent punishment.

Thus the law of arrest entails fine balancing between the liberties of the arrestee, and the interest
of State and people to secure a crime free society.

Under this topic we will discuss the following:

 Concept and Meaning of Arrest
 Provisions which deals with the arrest of a person without warrant by the police officer, private
person and magistrate,
 Provisions which deals with the power of courts to issue arrest warrant and arrest of a person
with warrant by the police
 Various steps taken by the judiciary and the legislature for the prevention of arbitrary arrest
[With the help of the case laws given in your case material]
 The manner of effecting the arrest and the rights of the arrestee.

The Concept and Meaning of Arrest:

 The term arrest is not defined in the Code. The code only provides the procedure for effecting
the arrest and the circumstances in which arrest can be made.
 According to Black’s Law Dictionary (6th edition) Arrest means the restraint of a person’s
liberty through some lawful authority
 In other words Arrest means:
- Deprivation of a person
- Of his liberty
- By legal authority

Note: Every compulsion or physical restraint is not arrest but when the restraint is total and
deprivation of liberty is complete that would amount to arrest.
 Arrest can also be defined as taking a person into (lawful) custody for making him answerable
to a criminal charge.
(We will discuss this in detail with the help of State of Harayana v Dinesh Kumar)
 Legal Framework for Effecting Arrest With or Without Warrant under CrPC

ARREST

Arrest without Warrant [Chapter V Arrest with/under Warrant [Chapter VI of

of the Code] the Code]: Sections 70 to 81 provide the
procedure for effecting the arrest under
the warrant, the various kinds of warrant

General Powers of Arrest Special/Preventive Powers of

[Section 60A, Sections 41-45] Arrest [Section 151]

Arrest by:
- Police [Section 41 provides for the situations when police may arrest without warrant.
Section 42 deals with situation where a police officer can arrest without warrant in case of
non-cognizable offences]

- Private Person [Section 43 provides for the situation where an arrest can be made by a
private person and the procedure to be followed thereafter]

-Magistrate [Section 44 deals with arrest by a magistrate]

Lets discuss the Legal Framework of Arrest Law under the Code in Detail:

General Powers of Arrest under CrPC: Section 60A of the Code provides that no arrest shall be
made except in accordance with the provisions of this Code or any other law for the time being in
force providing for arrest.

1. Arrest Without Warrant: General Powers of Arrest:

The provisions which authorize arrest without warrant are as follows:

(i) Arrest without Warrant by Police Officer: [Relevant Provision- Sections 41 & 42]

Sections 41 & 42 deals with the powers of police officer to make arrest without warrant. It means
that in all the cases arrest cannot be made by the police office without warrant, except only in
circumstances enumerated in these sections.

The Supreme Court in two landmark cases; Joginder Kumar v. State of U.P., (1994) 4 SCC 260; D.K.
Basu v. State of West Bengal, AIR 1997 SC 610 decided to limit the potential misuse of power of
arrest by the police. Through these cases the Supreme Court has laid down various guidelines for
prevention of the arbitrary exercise of such power of arrest.

In the case of Joginder Kumar v. State of U.P. the Supreme Court has held that:
no arrest can be made because it is lawful for the police officer to do so. The existence of the power
is one thing. The justification for the exercise of it is quite another. No arrest should be made
without a reasonable satisfaction reached after some investigation about 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. Denying a person his liberty is a serious matter

After making such observation the Court has laid down following steps to be followed in cases of
arrest in a cognizable case:
 An arrested person being held in custody is entitled, if he so requests, to have any 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 he is being detained.
 The Police Officer shall inform the arrested person when he is brought to the police station of
this right.
 An entry shall be required to be made in the Diary as to who was informed of the arrest.

In D.K. Basu v. State of West Bengal, the Supreme Court has further extended the protection from
arbitrary arrest. In this case the Supreme Court laid down the various requirements which should
be followed while arresting a person. [This case law is given in study material, therefore we will
discuss it in detail]

Lets discuss Section 41 of the the Code:

Section 41(1) clause (a) to clause (i) enumerates the circumstances in which a police officer is
empowered to make the arrest without warrant. This sub-section of section 41 only gives the
discretionary power to police to make arrest.

It is not mandatory to make the arrest on the part of police officers in the circumstances mentioned
in this section. As the opening line of section 41(1) reads thus: “Any police officer may without an
order from a Magistrate and without a warrant, arrest any person”.

Note: Exercise of power of arrest under Section 41(1)should be reasonable and to be exercised
only in cases where the immediate arrest and the prompt action is needed. In case, the legality of
an arrest made under this provision is questioned before the court, the burden is on the police
officer to satisfy the Court that he had reasonable ground of suspicion.

Note: The malicious and excessive exercise of the power of arrest under these Sections would be
punishable under Section 220 of the IPC.

The various circumstances enumerated under clause (a) to clause (i) of Section 41(1) of the code in
which a police officer may arrest without warrant are as follows:
Section 41(1): Any police officer may without an order from a Magistrate and without a warrant,
arrest any person:

Clause (a): who commits, in the presence of a police officer, a cognizable offence;

Clause (b): against whom a reasonable complaint has been made, or credible information has
been received, or a reasonable suspicion exists that he has committed a cognizable offence
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, if the following conditions are satisfied,
namely:

Condition (i): The police officer has reason to believe on the basis of such complaint, information,
or suspicion that such person has committed the said offence;

Condition (ii): The police officer is satisfied that such arrest is necessary -

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear
or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any
person acquainted with the facts of the case so as to dissuade him from disclosing
such facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot
be ensured,

and the police officer shall record while making such arrest, his reasons in writing.

Proviso: That a police officer shall in all cases where the arrest of a person is not required under the
provisions of this sub-section record the reasons in writing for not making the arrest. [Inserted by
Code of Criminal Procedure (Amendment) Act, 2010]

Clause (ba): Against whom credible information has been received that he has committed a
cognizable offence punishable with imprisonment for a term which may extend to more than
seven years whether with or without fine or with death sentence
&
the police officer has reason to believe on the basis of that information that such person has
committed the said offence;

Note: Clause (b) provides for the less serious offences which are punishable upto the imprisonment
of seven years, in case of those offences the arrest can be made without warrant but only for the
purposes mention in that clause and the police officer is also required to record the reason for
making the arrest.
However the police officer is empowered to make the arrest without warrant only on the ground of
credible information in case of the serious offences which are punishable with the imprisonment
of more than seven years under clause (ba). This clause (ba) gives a wide discretionary power and
does not, like clause (b), provide the purposes only for which the arrest can be made and like
clause (b) no reason is required to be recorded.

Clause (c):Arrest of Proclaimed Offender

 any person, who has been proclaimed as an offender either under this Code or by the order of
the State Government, can be arrested by the police officer without warrant.

Clause (d): Arrest of Person in Possession of Stolen Property

 a person, who is suspected to be in possession of stolen property or a person who is suspected
to have committed an offence in relation to that property, can be arrested without warrant.

In order to exercise the power clause (d), the suspicion of the police must be ‘reasonable’, i.e.
founded on unsatisfactory replies of the person on interrogation as to his belongings or on inquiries
as might be proper in the circumstances, so that he may be said to have acted in good faith.

Clause (e): Arrest of Person Obstructing Police Officer or Absconder from Lawful Custody:
 a person, who obstructs a police officer in the discharge of his duties, can be arrested without
warrant. This clause also provides that a person who has escaped or attempts to escape, from
lawful custody, can be arrested without warrant.

Note 1: Obstructing a public servant in the discharge of his official duties is a non-cognizable
offence under Section 186 of the IPC. But this clause provides that in case of obstruction to the
police officer, arrest can be made without warrant.

Note 2: it is not necessary that the escaped person must have committed a cognizable offence. The
person, who escapes from lawful custody, can be convicted for such an action under Section 224 of
the IPC.

Clause (f): Arrest of a Deserter

 a person who is reasonably suspected of being a deserter from any of the Armed Forces of the
Union, can be arrested without warrant.

Clause (g): Arrest of the Person having Committed the Offence Outside India
 a person, who has been concerned in or against a reasonable complaint has been made or a
credible information has been received or a reasonable suspicion exits of his having been so
concerned in the commission of an offence outside India, can be arrested without warrant.

Note: It is not necessary that the act done by the accused must be punishable as an offence in that
foreign country and it is also not necessary that the offence must be cognizable one. This clause
applies in case commission of any offence, whether cognizable of non-cognizable, committed
outside India.

Clause (h): Arrest of a Person who Violates the Conditions Imposed under Section 356:
 in case of violation of the conditions imposed under Section 356(5) relating to the notification
of residence or change in, or absence from residence by the released convicts, arrest can be
made without warrant.
Clause (i): Arrest in Case of Requisition by Another Police Officer:
 when a requisition, written or oral, is received from another police officer for the arrest of a
person, then he can be arrest without warrant

Note: Arrest without Warrant by Subordinate Police Officer and Procedure thereof [Section 55]-
See below.

Now Lets Discuss Section 42 which provides for the Power of Police to Arrest without Warrant in
case of Non-cognizable Offence:

A combined reading of Section 2(l) & Sub-section (2) of Section 41 provides the general rule that
Police officer does not have any authority to arrest without warrant in case of non-cognizable
offence. However under Section 41(2) this rule is subject to the provisions of Section 42 which
empowers the police officer to arrest without warrant in case of non-cognizable offence.

Section 41(2) reads thus:

 Subject to the provisions of section 42, no person concerned in a non-cognizable offence or
against whom a complaint has been made or credible information has been received or
reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant
or order of a Magistrate.

Section 42 provides that:

 when any person who, in the presence of a police officer, has committed or has been accused
of committing a non-cognizable offence refuses to give his name and residence or gives a
name or residence which such officer has reason to believe to be false, he may be arrested by
such officer for the purpose of ascertaining his true name and residence.[sub-sec. (1)]
 As soon as the name and residence is ascertained, that person shall be released on his
executing a bond.[sub-section(2)]
 If the name and residence cannot be ascertained within 24 hours, then he is required to be
produced before the Magistrate. [sub-section(3)]

Note: While exercising the powers given under Section 42 the police officer must have reason to
believe that the name or residence is false only then the power can be exercised under this Section.

(ii) Arrest without Warrant by Private Person: [Section 43]

Section 43 provides that a private person may arrest or cause to be arrested the following two
categories of persons:
 a person who in his presence commits a non-bailable and cognizable offence, or
 a proclaimed offender.

Procedure to be followed after such Arrest: Sub-section(1) further provides that after making the
arrest, the private person shall immediately hand over the accused to the police officer and if no
police officer is present there, to the nearest police station.

Sub Section(2) provides that - if the police officer has reason to believe that such person comes
under Section 41, then he shall re-arrest him.
Sub Section (3) provides that - If there is reason to believe that he has committed a non-cognizable
offence, and he refuses on the demand of a police officer to give his name and residence, or gives a
name or residence which such officer has reason to believe to be false, he shall be dealt with under
the provisions of section 42;
but if there is no sufficient reason to believe that he has committed any offence, he shall be at once
released.

Legal Consequences of Wrongful Arrest made by the Private Person: If wrongful arrest is made by
private person, i.e. Arrest in case of a non-cognizable offence or arrest long after the commission of
the offence or arrest with the intention to detain, then:

 the accused has the right of private defence against the private person and the accused cannot
be convicted for the resistance to arrest under Section 224 or Section 225 of the IPC.
 the private person can be made liable for the offence of wrongful confinement under Section
340 of the IPC.

However, the private person cannot be made liable for the bonafide arrest, as for example it was
not known to him that whether the offence is cognizable or non-cognizable

(iii) Arrest without Warrant by Magistrate [Both Executive and Judicial Magistrate]: [Section 44]

According to Section 44 Magistrate can arrest the following to categories of persons:

(i) any person who commits an offence in the presence of the Magistrate. [Sub Section (1)]
(ii) any person for whose arrest, such Magistrate is competent to issue a warrant. [Sub Section (2)]

Note 1: Power to arrest without warrant under Section 44 can be exercised by any Magistrate
whether executive or judicial and with respect to any offence, whether cognizable or
non-cognizable, if committed in presence of the Magistrate, the arrest can be made

Note 2: After making the arrest that Magistrate is required to produce the accused within 24 hours
before another Judicial Magistrate for the purposes of Section 57 and Section 167. That Magistrate
is not empowered to authorize the remand of the arrested person under Section 167.

Protection of members of the Armed Forces from arrest [Section 45]

Sub-section (1): Notwithstanding anything contained in sections 41 to 44 (both inclusive), no

member of the Armed Forces of the Union shall be arrested for anything done or purported to be
done by him in the discharge of his official duties except after obtaining the consent of the Central
Government.

Sub-section (2): The State Government may, by notification, direct that the provisions of
sub-section (1) shall apply to such class or category of the members of the Force charged with the
maintenance of public order as may be specified therein, wherever they may be serving, and
thereupon the provisions of that sub-section shall apply as if for the expression “Central
Government” occurring therein, the expression “State Government” were substituted.
2. Special/ Preventive Powers of Police to Arrest without Warrant [Section 151 of CrPC]

Arrest to prevent the commission of cognizable offences [Section 151]

Sub-section (1): A police officer knowing of a design to commit any cognizable offence may arrest,
without orders from a Magistrate and without a warrant, the person so designing, if it appears to
such officer that the commission of the offence cannot be otherwise prevented.

Sub-section (2): No person arrested under sub-section (1) shall be detained in custody for a period
exceeding twenty-four hours from the time of his arrest unless his further detention is required or
authorised under any other provisions of this Code or of any other law for the time being in force.

3. Process to Effect/Make Arrest: Section 46 of CrPC provides how the arrest be made.This
Section provides that:
 the arrest is made by actual touching or confining the body of the person to be arrested. But if
the person to be arrested submits himself/herself to the custody then actual touch or
confinement of the body is not required.
The submission may be expressed by words or may be inferred from the conduct of the
person.[sub-section (1)]

 If the person to be arrested resists or tries to evade the arrest, then the person making the
arrest is empowered to use all necessary means for the purpose of effecting the arrest.
[sub-section (2)]

 for the purpose of making the arrest even the death of the person to be arrested can be caused;
if the person is alleged to have committed an offence punishable with death penalty or life
imprisonment. [Sub section (3)]

Note 1: But in that case the burden shall be on the police officer or the other person making the
arrest to prove that the accused was trying to escape and it was necessary to cause the death and
there were reasonable grounds to believe that the accused has committed an offence punishable
with death penalty or life imprisonment.

Note 2: For the purpose of arresting the accused force can be used against him but this force
should be reasonable force and be in proportion to resistance and necessary for the purpose of
making the arrest. Unnecessary and unreasonable force should not be used.

Note 3: If a person resist the arrest and evade the arrest then such person may be convicted under
Section 224 or Section 225 of the IPC.

In the case of State of U.P. v. Deoman Upadhaya, AIR 1960 SC 1125 the accused approached a
police officer investigating the offence. He offered to give information leading to the discovery of
fact having a bearing on the charge which might be made against him. Supreme Court held that he
had submitted to the custody by action within the meaning of sub-section (1) of Section 46
Additional Powers for Effecting Arrest: Read the following provisions with Section 46 of the Code:

(a) Power to Search a Place for Effecting Arrest: According to Section 47 of the Code, an occupier
of a house is under a legal duty to afford to the police all the facilities to search the house for the
purpose of making arrests.
 If such facilities are denied and obstructions are put in the way of the police officer,the section
allows the officer to use force for getting entry into the house for search or also for the
purpose of liberating himself in case he is detained in the house.
 This section also puts reasonable restrictions on the police when the part of the house to be
searched is occupied by a pardanashin woman.

(b) Power to Pursue Offenders for the Purpose of Effecting Arrest: Section 48 of the Code provides
that “a police officer may, for the purpose of arresting without warrant any person whom he is
authorised to arrest, pursue such person into any place in India.”

(c) Power, on Escape, to Pursue and Retake:

 If a person in lawful custody escapes or is rescued, the person from whose custody he escaped
or was rescued may immediately pursue and arrest him in any place in India.[Section 60(1)]

(d) Power of Officer Incharge of Police Station or any IO to Depute Subordinate to Arrest:
 When any officer in charge of a police station or any police officer making an investigation
under Chapter XII requires any officer subordinate to him to arrest without a warrant
(otherwise than in his presence) any person who may lawfully be arrested without a warrant,
he shall deliver to the officer required to make the arrest an order in writing, specifying the
person to be arrested and the offence or other cause for which the arrest is to be made and
the officer so required shall, before making the arrest, notify to the person to be arrested the
substance of the order and, if so required by such person, shall show him the order. [Section
55(1)]

(e) Power of Police to Search Arrested Person:

 Section 51 empowers a police officer to make a search of the arrested person under the
circumstances mentioned therein. Such search may prove useful for conducting proper
investigation.
Note: If incriminating things or stolen articles are found in such search, the police officer can seize
them under Section 102 and the same is produced before the court. [See also the discussion on
Seizure.
 Though this Section does not require the search to be conducted in the presence of the
witnesses, the rules made under the Police Act direct that the search of arrested person should
be made in the presence of independent and respectable witnesses.
 The police officer effecting the search shall place in safe custody all articles, other than
necessary wearing apparel found upon him and where any article is seized from the arrested
person, a receipt showing the articles taken in possession by the police officer shall be given to
such person. [This would ensure that the articles seized are properly accounted for.]
Note: In case the arrested person is a woman the search can be made only by a female with strict
regard to decency. [Sub-section (2) of Section 51]

(f) Seizure of Offensive Weapons: Section 52 of the Code provides:

The officer or other person making any arrest under this Code may take from the person arrested
any offensive weapons which he has about his person, and shall deliver all weapons so taken to the
court or officer before which or whom the officer or person making the arrest is required by this
Code to produce the person arrested.

Note: Under this section seizure can be made by any person making arrest under this Code.

4. Duties of Police Officer Effecting Arrest: [Only an Illustrative discussion not Exhaustive. You
may add more duties of the police officer while effecting arrest or post arrest]
(i) Duties of Police Officer while Making Arrest [Section 41 B]
Every police officer while making an arrest shall:
(a) bear an accurate, visible and clear identification of his name which will facilitate easy
identification;

(b) prepare a memorandum of arrest which shall be:

(i) attested by at least one witness, who is a member of the family of the person arrested or a
respectable member of the locality where the arrest is made;
(ii) countersigned by the person arrested; and

(c) inform the person arrested, unless the memorandum is attested by a member of his family, that
he has a right to have a relative or a friend named by him to be informed of his arrest.

(ii) Duty to Take Care of Health and Safety of Accused [Section 55A]
 It shall be the duty of the person having the custody of an accused to take reasonable care of
the health and safety of the accused.

(iii) Duty of Officer Incharge of Police Station to Report Arrests to District Magistrate [Section 58]
 Officers in charge of police stations shall report to the District Magistrate, or, if he so directs, to
the Sub-divisional Magistrate, the cases of all persons arrested without warrant, within the
limits of their respective stations, whether such persons have been admitted to bail or
otherwise.

(iv) Duty of Police Officer no to subject the person arrested to more restraint than is necessary to
prevent his escape. [Section 49]
 RIGHTS OF ARRESTEE

Part III of the Constitution of India and Chapter V of CrPC provide certain rights to the arrestee in
case of arrest without warrant. The jurisprudence of Rights of Arrestee is strengthened by Supreme
Court in Joginder Kumar v. State Of U.P (1994) D.K.Basu v. State of West Bengal (1997) Arnesh
Kumar v. State of Bihar (2014). We will discuss these case laws in detail in our lectures.

Here are the rights of arrestee under the provisions of CrPC:

Let us discuss the Rights of Arrestee under the provisions of the Constitution of India and CrPC:

(i) Right to know the grounds of arrest [Article 22(1) read with Section-50(1)]

 Section 50(1) provides that when a police officer or any other person makes an arrest without
warrant then he is required to inform to the arrested person the grounds of his arrest. This is a
mandatory provision.

This provision fulfills the constitutional objective given under Article 22(1) which reads thus:
“ No person who is arrested shall be detained in custody without being informed, as soon as
may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be
defended by, a legal practitioner of his choice.”

 An accused must be informed of the bare necessary facts leading to his arrest. It is difficult to
prescribe any form in which the information must be given. An arrested person must know the
grounds and the reasons and the facts that in respect of whom and by whom the offence is said
 to have been committed as well as the date, time and place of the offence etc. [See Vikram v.
State, 1996 Cr.L.J. 1536]

 The burden lies on the police officer to prove that the provisions of this Section have been
complied.

(ii) Right to be Informed about his/right to be Released on Bail in Bailable Offences [Section
50(2)]

Sub Section (2) of Section-50 provides that when a police officer makes an arrest without warrant
in case of a bailable offence then he is required to inform the arrestee that the he has a right to be
released on bail.

(iii) Right to be Taken before a Magistrate without Delay: [Section 56 & Section 76 of CrPC]

 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
Note: The arrested person should not be confined in any place other than a police station before he
is taken to the Magistrate.
(iv) Right of the Arrestee to be produced before a Magistrate within 24 hours [Article 22(2) of
Constitution r/w Section 57 of CrPC]

 Section-57 of the Code provides that when a police officer makes an arrest without warrant
then the arrestee is required to be produced before the Magistrate without unnecessary delay
and this period should exceed 24 hours from the arrest.

 Section 57 is in consonance with the constitutional mandate given under Article 22(2) of the
Constitution which reads:

Object: Arrest must come into the judicial consideration and some or the other Judicial Magistrate
must check the legality of the arrest.

 Not necessary under this Section that the arrestee must be produced before the Magistrate
having jurisdiction, but before any nearest Magistrate.

 This period of 24 hours is excluding the time necessary for the journey from the place of arrest
to the Magistrate’s Court.

Note: This is a mandatory provision and the detention beyond 24 hour becomes illegal and the
police officer can be convicted for the offence of wrongful confinement under Section-340 of the
IPC.

 This Section does not authorize the police officer to detain the arrestee for the period of 24
hour in all the cases without any reasonable cause.
 Section 57 of the Code does not empower a police officer to keep an arrested person in
custody a minute longer than is necessary for the purpose of investigation and it does not give
him an absolute right to keep a person in custody till 24 hours. The police officer shall, without
unnecessary delay, take or send the arrested person before a Magistrate. The 24 hours
prescribed under Section 57 is the outermost limit beyond which a person cannot be detained
in the police custody. It is certainly not an authorization for the police to detain him for 24 hour
in their custody. It is only in a case where a police officer considers that the investigation can
be completed within 24 hours that such detention for 24 hours is permitted. [See - P. Swarupa
and etc. v. State of A.P. 1996 Cr.L.J. 2607]

(v) Right of Arrestee to Meet a Lawyer of his Choice during Interrogation [Article 22(1) r/w
Section 41D]

Section 41-D of the Code provides that when any person is arrested and interrogated by the police,
he shall be entitled to meet an advocate of his choice during interrogation, though not throughout
interrogation.

(vi) Right of Information Regarding Arrest and Place of Detention to a Nominated Person
[Section 50A]

Section 50A: Obligation of person making arrest to inform about the arrest, etc., to a nominated
person.—
(1) Every police officer or other person making any arrest under this Code shall forthwith give the
information regarding such arrest and place where the arrested person is being held to any of his
friends, relatives or such other persons as may be disclosed or nominated by the arrested person
for the purpose of giving such information.

(2) The police officer shall inform the arrested person of his rights under sub-section (1) as soon as
he is brought to the police station.

(3) An entry of the fact as to who has been informed of the arrest of such person shall be made in a
book to be kept in the police station in such form as may be prescribed in this behalf by the State
Government.
(4) It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy
himself that the requirements of sub-section (2) and sub-section (3) have been complied with in
respect of such arrested person.

(vii) Right of Arrestee to be Medically Examined by Medial Officer [Section 54]

 When any person is arrested, he shall be examined by a medical officer in the service of Central
or State Government, and in case the medical officer is not available, by a registered medical
practitioner soon after the arrest is made. [Sub-section (1)]

 Where the arrested person is a female, the examination of the body shall be made only by or
under the supervision of a female medical officer, and in case the female medical officer is not
available, by a female registered medical practitioner. [Proviso to sub-section (1)]
 The medical officer or a registered medical practitioner so examining the arrested person shall
prepare the record of such examination, mentioning therein any injuries or marks of violence
upon the person arrested, and the approximate time when such injuries or marks may have
been inflicted.[Sub-section (2)]

 Where an examination is made under sub-section (1), a copy of the report of such examination
shall be furnished by the medical officer or registered medical practitioner, as the case may be,
to the arrested person or the person nominated by such arrested person. [Sub-section (3)]

Note:
A. Examination of accused by medical practitioner at the request of police officer [Section 53]

 When a person is arrested on a charge of committing an offence of such a nature and alleged
to have been committed under such circumstances that there are reasonable grounds for
believing that an examination of his person will afford evidence as to the commission of an
offence, it shall be lawful for a registered medical practitioner, acting at the request of a police
officer not below the rank of sub-inspector, and for any person acting in good faith in his aid
and under his direction, to make such an examination of the person arrested as is reasonably
necessary in order to ascertain the facts which may afford such evidence, and to use such force
as is reasonably necessary for that purpose.[Sub-section (1)]

 Whenever the person of a female is to be examined under this section, the examination shall
be made only by, or under the supervision of, a female registered medical
practitioner.[Sub-section (2)]
B. Examination of person accused of rape by medical practitioner [Section 53A]

 When a person is arrested on a charge of committing an offence of rape or an attempt to

commit rape and there are reasonable grounds for believing that an examination of his person
will afford evidence as to the commission of such offence, it shall be lawful for a registered
medical practitioner employed in a hospital run by the Government or by a local authority and
in the absence of such a practitioner within the radius of sixteen kilometres from the place
where the offence has been committed, by any other registered medical practitioner, acting at
the request of a police officer not below the rank of a sub-inspector, and for any person acting
in good faith in his aid and under his direction, to make such an examination of the arrested
person and to use such force as is reasonably necessary for that purpose.[Sub-section (1)]

 The registered medical practitioner conducting such examination shall, without delay, examine
such person and prepare a report of his examination giving the following particulars, namely:—
(i) the name and address of the accused and of the person by whom he was brought,
(ii) the age of the accused,
(iii) marks of injury, if any, on the person of the accused,
(iv) the description of material taken from the person of the accused for DNA profiling, and
(v) other material particulars in reasonable detail. [Sub-section (2)]

 The report shall state precisely the reasons for each conclusion arrived at.[Sub-section (3)]

 The exact time of commencement and completion of the examination shall also be noted in the
 report.[Sub-section (4)]

 The registered medical practitioner shall, without delay, forward the report to the investigating
officer, who shall forward it to the Magistrate referred to in section 173 as part of the
documents referred to in clause (a) of subsection (5) of that section.[Sub-section (5)]

Note:
In sections 53, 53A and 54,“examination” shall include:
the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat,
hair samples and finger nail clippings by the use of modern and scientific techniques including DNA
profiling and such other tests which the registered medical practitioner thinks necessary in a
particular case;

In sections 53, 53A and 54“registered medical practitioner” means:

a medical practitioner who possesses any medical qualification as defined in clause (h) of section 2
of the Indian Medical Council Act, 1956 (102 of 1956) and whose name has been entered in a State
Medical Register.

Note: Right of an Arrested Indigent Person to Free Legal Aid and to be Informed about it: [Article
21 of the Constitution of India]
In Khatri v. State of Bihar, (1981) 1 SCC 62, the Supreme Court has held that the State is under a
constitutional mandate implicit under Article 21 to provide free legal aid to an indigent accused
person, and this constitutional obligation to provide free legal aid does not arise only when the trial
commences but also when the accused is for the first time produced before the Magistrate as also
when he is 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.
[Also see decision of Supreme Court in Suk Das v. UT of Arunachal Pradesh, (1986) 2 SCC 401]
 Arrest under Warrant
Chapter VI of the Code: Sections 70 to 81 provide the procedure for effecting the arrest under the
warrant, the various kinds of warrant.

Meaning of Warrant of Arrest: A warrant is a written order issued and signed by a Magistrate
addressed to a certain person to arrest the accused to take him into custody and bring him before
the Court issuing the warrant.

 Ordinarily in all warrant cases arrest may be made under warrant of the court.[Section 204] &
A Magistrate taking cognizance of an offence can issue a warrant for the arrest of the accused.

Circumstances in which the court empowered to issue summons for the appearance of any
person may issue warrant of arrest: [Section 87]
(a) if either before the issue of summons, or after the issue of the same but before time fixed for
his appearance, the court sees reason to believe that he has absconded or will not obey the
summons; or
(b) if, at such time he fails to appear and the summons is proved to have been duly served in time
to admit of his appearing in accordance therewith and no reasonable excuse is offered for such
failure.

Some Important Points to Remember on Warrant of Arrest:

(i) Personal liberty of accused is of paramount importance and where his presence may be secured
otherwise, the court must not issue warrant of arrest.Therefore, A warrant of arrest should not, as
a general rule, be issued where summons would be sufficient to secure the ends of justice.

(ii) A warrant once issued remains in force until it is cancelled or executed.

(iii) Where Warrant may be Executed: A warrant of arrest may be executed at any place in India
and it is not restricted to the local limits of the jurisdiction of the Magistrate issuing such warrant.
[Section 77]

(iv) Generally, a court has no jurisdiction to issue a warrant where the offence has been committed
outside his jurisdiction but in certain circumstances a Magistrate is empowered to issue a warrant
for arresting a person within his jurisdiction for an offence committed by him outside his
jurisdiction. [Section 187]

(v) A warrant may be issued for the arrest of a person who fails to appear in Court, after having
executed a bond in that behalf. [Section 89]

Formal requirements of a warrant of arrest: Section 70 of the Code provides for form of warrant of
arrest. Every warrant of arrest must satisfy following requirements
i) Issued by a Court;
ii) in writing;
iii) bear name and designation of the person who is to execute it;
iv) give full name and description of the person to be arrested;
v) state the offence charged;
vi) signed by the presiding officer;
vii) bear seal of the Court.

Modes of execution of a Warrant of arrest:

General Rule: A warrant of arrest should be directed to a police officer or officers, for execution.
Where it is directed to more officers than one, it may be executed by all or by any one or more of
them.[See, Section 72]

Exception to the General Rule: Where the arrest is immediately necessary and no police officer is
available for execution of the warrant, a warrant of arrest may be directed to a person other than a
police officer. [See Section 72]

Instances in which a Warrant of Arrest may be Directed to a Person other than a Police Officer:
[See, Section 73]
The Code confers special powers on the Chief Judicial Magistrate and Judicial Magistrate of the First
Class to direct any person within his local jurisdiction to arrest:
i) Any escaped convict, or
ii) Proclaimed offender, or
iii) Any person accused of a non-bailable offence and is evading arrest

Procedure where a warrant of arrest is to be executed outside the local jurisdiction of the Court
issuing it: [See, Section 78 & 79]

 Where a warrant of arrest is to be executed outside the local jurisdiction of the Court issuing it,
such Court may forward it by post or otherwise to any Executive Magistrate or District
Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction
it is to be executed.
 In cases, when a warrant of arrest is directed to a police officer is to be executed outside the
local jurisdiction of the Court issuing it, he is required to take the same for endorsement either
to an Executive Magistrate or to a Police Officer not below the rank of an officer-in-charge of a
police station, within the local limits of whose jurisdiction it is to be executed.

Obligations upon the Person Executing a Warrant: [See, Sections 75 and 76]

The Code imposes following obligations upon the person executing warrant of arrest:
(i) To notify the substance of the warrant to arrestee:
Object: To inform the person arrested of the charge on which he was being arrested, so that he
may arrange for his release or defense.

(ii) To show the warrant, if required: The obligation to show the warrant arises only if the person
to be arrested demands it. It need not be shown when the substance thereof is notified. The
warrant should be shown in such a manner that the person gets an opportunity to read it.

Q What is the legal consequence of non-compliance with above-mentioned obligations?

Ans: Non compliance with these requirements will make the arrest illegal.

Note: The person executing a warrant of arrest is under an obligation to bring the person arrested
before the Court without unnecessary delay.
Two Kinds of Warrant of Arrest:

I. Bailable Warrants: The term ‘bailable warrant’ is not used in the Code. Section 71 of the
Code confers discretion upon the Magistrate issuing a warrant of arrest to make it ‘bailable’.

 Therefore, where the arrested person executes a bond with sufficient sureties for his
attendance before the Court at a specified time, the officer to whom the warrant is directed
shall take such security and release the person from custody.

II. Non-bailable Warrants: Merely because the warrant uses the expression like ‘non-bailable’
and that such terminology is not to be found in the Code, by itself cannot render the warrant bad in
law.

 Under section 70, a Judicial Magistrate can convert warrant of arrest into a bailable warrant.
He may also issue orders with regard to issuance of non-bailable warrants. It is for the court,
clothed with the discretion, to determine whether the presence of the accused can be secured
by a bailable or non-bailable warrant.

Supreme Court on Non-bailable Warrant of Arrest:

In Raghuvansh Dewanchand Bhasin v. State of Maharashtra, (2012)9 SCC 791. the Supreme Court
has issued directions to the courts below in respect to non-bailable warrants and made following
observation:

 Since the execution of a non-bailable warrant directly involves curtailment of liberty of a

person, warrant of arrest cannot be issued mechanically/arbitrarily, but only after recording
satisfaction that in the facts and circumstances of the case, it is warranted.

 The Courts have to be extra-cautious and careful while directing issue of non-bailable warrant;
else a wrongful detention would amount to denial of constitutional mandate envisaged in
Article 21 of the Constitution of India.

 But in situations where neither the accused nor his lawyer appear before the Court on the date
given and also fail to file petition seeking condonation of the absence, the issuance of
non-bailable warrant is justified.

In Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1 the Supreme Court instructed
that the non-bailable warrant should not be issued to bring a person to court when summons or
bailable warrants would likely to serve the purpose. Though issuance of a non-bailable warrant
would not be unjustified where:

 It is reasonable to believe that the person will not voluntarily appear in court; or
 The police authorities are unable to find the person to serve him with a summon; or
 It is considered that the person could harm someone if not placed into custody immediately.
In case of State of U.P. v. Poosu, (1976) 3 SCC 1 the Supreme Court made it clear that:

“before exercising its power to issue non-bailable warrant, the court should consider factors like
the nature and seriousness of the offence involved; the past conduct of the accused; his age and the
possibility of his absconding.”

Therefore we may conclude thus:

 The court should properly balance both personal liberty and societal interest before issuing
warrants.There cannot be any straightjacket formula for issuance of warrants but as a general
rule, unless an accused is likely to tamper or destroy the evidence or is likely to evade the
process of law, issuance of non-bailable warrants should be avoided.

 The court in all circumstances in complaint cases at the first instance should first prefer issuing
summons or bailable warrant failing which a non-bailable warrant should be issued.

Proclamation and Attachment of Property

Object of Proclamation and Attachment of Property: To put considerable pressure on the accused
so as to impel him to appear before the court in order to avoid deprivation of his property.

 A proclamation cannot be issued without first issuing a warrant of arrest. Before issuing a
proclamation the court must satisfy itself that a warrant of arrest had already been issued and
that the accused is absconding, concealing or evading the execution of warrant of arrest.

 The Criminal Procedure (Amendment) Act, 2005 strengthened the criminal courts while dealing
with accused of serious offences by empowering the courts to declare accused of serious
offences as proclaimed offenders where he fails to appear in response to its proclamation
under Section 80(4).

Procedure for Issuance of Proclamation:

 Where the court has reason to believe that any person against whom a warrant has been
issued by it i) has absconded, or ii) concealing himself to avoid execution of warrant, may
publish a written proclamation requiring him to appear at a specified time and place not less
than 30 days from the date of publishing such proclamation.[Read Section 82(1)]

 The Court issuing such proclamation may at any time thereafter, order the attachment of any
property, movable or immovable or both, belonging to the proclaimed person.[Read Section
83(1)]

 If the proclaimed person appears within the time specified in the proclamation, the court shall
make an order releasing the property from the attachment.
Modes of publication of Proclamation:

Section 82(2) prescribes three modes for publication of proclamation. These are:

i) The proclamation shall be publicly read in some conspicuous place of the town or village in which
such person ordinarily resides;

ii) The proclamation shall be affixed to some conspicuous part of the house in which such person
ordinarily resides or to some conspicuous place of such town or village;

iii) A copy of the proclamation shall be affixed to some conspicuous part of the Court house.

The court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily
newspaper circulating in the place in which such person ordinarily resides.

Procedure Regarding Attachment of Property [Read Section 83]

 The court issuing proclamation, at any time after the issue of proclamation, may order the
attachment of property, movable or immovable or both, belonging to proclaimed person.

 The purpose of attachment of the property of the absconder is not to punish him but to
procure his presence. If the proclaimed person does not appear within the time specified in the
proclamation, the property under the attachment shall be at the disposal of the State
Government.

Situations in which the Property under Attachment may be sold:

i) Where the time period of six months from the date of the attachment is expired, and
ii) Where any claim preferred or objection made under section 84 is disposed of.

 Provided further that where the property is subject to speedy and natural decay, or the sale
would be for the benefit of the owner, the court may cause it to be sold whenever it thinks fit.

Circumstances in which Code allows Issuance of an Order of Attachment Simultaneously with the
Issue of the Proclamation
 Though no time limit is prescribed for issuing a proclamation under section 83 but the general
rule is that an order of attachment should be made only after the issuance of proclamation. But
in certain circumstances the Code allows issuance of an order of attachment simultaneously
with the issue of the proclamation and such order shall not be held illegal. The situations are as
follows:

i) Where the proclaimed person is about to dispose of the whole or any part of his property, or
ii) Where the proclaimed person is about to remove the whole or any part of his property from the
local jurisdiction of the court.

This provision removed the hardship in cases where the person concerned, even before knowing
issuance of proclamation, finds his property being attached.
Relevant Provisions of UP Police Regulation on Proclamation and Attachment of Property of
Proclaimed Offender:

Regulation 215. Action against proclaimed offender:

 Whenever an officer-incharge of a police station, or an officer making an investigation under
Chapter XII of the Code of Criminal Procedure, 1973 (2 of 1974) is satisfied that a person
whom he is empowered to arrest under Section 41 (1) of the Code has absconded or is
concealing himself so that he cannot be arrested,
 he must apply to the Court having jurisdiction, successively, for a warrant of arrest, a
proclamation under Section 82 of the Code of Criminal Procedure, 1973 (2 of 1974) and an
order of attachment under Section 83/84.
 All these applications should be made as early as may be desirable in the particular case; they
need not be delayed for the conclusion of an investigation; and a warrant of arrest, a
proclamation and an order of attachment may all legally be issued one after the other in their
proper order on the same day.
 The officer who asks a Court to issue a proclamation must be prepared to produce legal
evidence to prove that the person whose arrest desired has absconded, and must not accept
the mere statement or report of an officer who has no personal knowledge of the absconding
to satisfy the Court. When an order of attachment is issued he must satisfy himself that it is
efficiently executed.

Regulation 216: Absconded offer:

Any person for whose appearance a proclamation has been issued under Section 82 of the Code of
Criminal Procedure, 1973 (2 of 1974) is an absconded offender within the meaning of this Chapter.

Regulation 217: Types of absconded offenders: Absconded offenders shall be divided into two
classes : A and B.
Class A will include all absconders whose names, caste, residence, and antecedents have been
verified beyond all possibility of doubt;
Class B consists only of those persons whose real names, residence and antecedents have not been
ascertained.
 State of Haryana v. Dinesh Kumar
(2008) 3 SCC 222

ALTAMAS KABIR,J.:

These two appeals have been taken up for hearing and disposal together, in as much as, the issues to be
decided in these appeals are common to both, but have been decided differently by two co-ordinate
benches of the same High Court giving rise to a question of law which is of great public importance. In
these appeals we are called upon to decide:
⮚ what constitutes arrest and custody in relation to a criminal proceeding and
⮚ the decision in respect thereof may have a bearing on the fate of the respondent in this appeal and
that of the appellants in the other appeal in relation to their recruitment as Constable-Drivers in the
Haryana Police.

Facts of First Appeal:

⮚ The respondent in the first of these two appeals and the appellants in the other appeal applied for
appointment as Constable-Drivers under the Haryana Police and submitted their respective application
forms, which contained two columns, namely, 13(A) and 14, which read as follows:-
13(A): Have you ever been arrested?
14: Have you ever been convicted by the Court of any offence?

⮚ As far as the respondent in SLP(C) No. 1840 of 2007, Dinesh Kumar, is concerned, he answered the said
two queries in the negative. Subsequently, during verification of the character and antecedents of the
said respondent, it was reported that he had been arrested in connection with a case arising out of FIR
No. 168 of 13th October, 1994, registered at Kalanaur Police Station under Sections 323/324/34
Indian Penal Code. He and his family members were ultimately acquitted of the charges framed
against them on 6th January, 1998, by the Judicial Magistrate, Ist Class, Rohtak. The appellant,
however, alleged that the respondent had concealed these facts from the Selection Committee and had
not correctly furnished the information in columns 13(A) and 14 of the application form submitted by
him for recruitment to the post in question.

⮚ Since, according to the appellants, the respondent had failed to disclose the aforesaid criminal case,
which had been registered against all his family members, he was not offered any appointment. The
appeal filed by the respondent was rejected by the Director General of Police, Haryana, by his order
dated 18th November, 2005.
⮚ The rejection of the respondent’s claim for appointment as Constable-Driver on the above mentioned
ground was challenged by him before the Punjab and Haryana High Court in Civil Writ Petition No. 18
of 2006.
⮚ Before the High Court, it was contended by the respondent that in connection with the aforesaid FIR
No. 168 dated 13th October, 1994, he had been granted bail on 17th October, 1994 without having
been arrested. It was, therefore, contended on his behalf that since he had not been actually arrested
and the case against him having ended in acquittal, it must be deemed that no case had ever been
filed against him and hence he had not suppressed any information by replying in the negative to the
questions contained in columns 13(A) and 14.

Impugned Decision of High Court in First Appeal

⮚ Taking the view that the appellant had not suppressed any material while filling up the said columns
13(A) and 14, the High Court quashed the order of rejection by the Director General of Police, Haryana
on 18th November, 2005 and directed the appellants herein to take steps to issue an appointment
letter to the respondent subject to fulfillment of other conditions by him.
⮚ In order to arrive at the aforesaid conclusion, the High Court held that since the petitioner had been
acquitted from the criminal case in question, he had quite truthfully answered the query in column 14
 by stating that he had never been convicted by any Court for any offence. The High Court also held that
even column 13(A) had been correctly answered because the High Court was of the view that the
appellant had never been arrested, though he had obtained bail in connection with the said case.

Facts of the Second Appeal:

⮚ In the other writ petition filed by Lalit Kumar and Bhupinder, a co-ordinate Bench of the same High
Court took a different view. In the said matter the appellants had been involved in a criminal case,
being FIR No.212 dated 3rd November, 2000, registered at Police Station Sadar, Narwana, for offences
punishable under Sections 148/149/307/325/323 of the Indian Penal Code, but they had been
subsequently acquitted of the said charges on 10th September, 2001.

⮚ On behalf of the State, the same stand was taken that the aforesaid piece of information had been
withheld by the writ petitioners while filling column 14 of the application form.

Impugned Decision of High Court in Second Appeal:

⮚ The High Court was of the view that since the writ petitioners had withheld important information it
clearly disentitled them to appointment, as it revealed that they could not be trusted to perform their
duties honestly. The High Court, accordingly, dismissed the writ petitions as being without merit.

● In the first of the two appeals, the respondent had not surrendered to the police but had appeared
before the Magistrate with his lawyer of his own volition and was immediately granted bail.
Admittedly, therefore, the respondent had not surrendered to the police but had voluntarily appeared
before the Magistrate and had prayed for bail and was released on bail, so that as per the
respondent’s understanding, at no point of time was he taken into custody or arrested.

● As to the second of the two appeals, the appellants in response to the query in column 14, had quite
truthfully answered that they had not been convicted by any Court of any offence, since they had been
acquitted of the charges brought against them. With regard to column 13(A), the appellants who had
been implicated in FIR under Sections 323/324/34 Indian Penal Code appeared before the Ilaka
Magistrate, and were released on their personal bonds without being placed under arrest or being
taken into custody.

● The information disclosed by them was held to be suppression of the fact that they had been involved
in a criminal case though the tenor of the query was not to that effect and was confined to the
question as to whether they had been arrested.

One of the common questions which, therefore, need to be answered in both these appeals is:

⮚ whether the manner in which they had appeared before the Magistrate and had been released
without being taken into formal custody, could amount to arrest for the purpose of the query in
Column 13A.

As mentioned hereinbefore, the same High Court took two different views of the matter. While,
on the one hand, one bench of the High Court held that since the accused had neither surrendered nor had
been taken into custody, it could not be said that he had actually been arrested,
on the other hand, another bench of the same High Court dismissed similar writ petitions filed by Lalit
Kumar and Bhupinder, without examining the question as to whether they had actually been arrested or
not. The said bench decided the writ petitions against the writ petitioners upon holding that they had
withheld important information regarding their prosecutions in a criminal case though ultimately they were
acquitted.
In order to resolve the controversy that has arisen because of the two divergent views, it will be
necessary to examine the concept of arrest and custody in connection with a criminal case.

⮚ The expression arrest has neither been defined in the Code of Criminal Procedure (hereinafter referred
to as the Code) nor in the Indian Penal Code or any other enactment dealing with criminal offences.
The only indication as to what would constitute arrest may perhaps be found in Section 46 of the Code
which reads as follows:-

Section 46 - Arrest how made (1) In making an arrest the police officer or other person making the same
shall actually touch or confine the body of the person to be arrested, unless there be a submission to the
custody by word or action.

(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest,
such police officer or other person may use all means necessary to effect the arrest.

(3) Nothing in this section gives a right to cause the death of a person who is not accused of an
offence punishable with death or with imprisonment for life.

(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before
sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a
written report, obtain the prior permission of the Judicial Magistrate of the first class within whose
local jurisdiction the offence is committed or the arrest is to be made.

⮚ We are concerned with sub-sections (1) and (2) of Section 46 of the Code from which this much is
clear that in order to make an arrest the police officer or other person making the same shall actually
touch or confine the body of the person to be arrested, unless there be submission to the custody by
word or action.

Similarly, the expression custody has also not been defined in the Code.

⮚ The question as to what would constitute arrest and custody has been the subject matter of
decisions of different High Courts, which have been referred to and relied upon by Mr. Patwalia
appearing for Dinesh Kumar, respondent in the first of the two appeals. This Court has also had
occasion to consider the said question in a few cases, which we will refer to shortly. Reliance was
also placed on the dictionary meaning of the two expressions which will also be relevant to our
decision.

Mr. Anoop Chaudhary, learned senior advocate, who appeared for the State of Haryana, in both the
appeals, submitted:
⮚ that when the respondent in the first appeal and the appellants in the second appeal had appeared
before the Magistrates and prayed for bail, it must be understood that they had surrendered to the
custody of the court, as otherwise, the provisions of Section 439 of the Code would not have had
application.
⮚ that it did not matter as to whether the accused persons had been arrested and detained in custody
by the police or not, the very fact that they voluntarily appeared before the Magistrate and prayed for
bail amounted to arrest of their movements, since thereafter they were confined to the Court room
and were no longer free to leave the court premises of their own choice

⮚ that the ordinary dictionary meaning of arrest is - to legally restrain a person’s movements for the
purpose of detaining a person in custody by authority of law. He submitted that in Dinesh Kumar’s
 writ petition the High Court had erred in coming to a finding that he had never been arrested since he
had voluntarily appeared before the Magistrate and had been granted bail immediately.

Opposing Mr. Chaudhary’s submission, Mr. Patwalia, relying on various decisions of different High Courts
and in particular a Full Bench decision of the Madras High Court in the case of Roshan Beevi v. Joint
Secretary to the Govt. of Tamil Nadu,[1984 Cr.L.J 134], submitted

⮚ that although technically the appearance of the accused before the Magistrate might amount to
surrender to judicial custody, in actuality no attempt had been made by anyone to restrict the
movements of the accused which may have led him to believe that he had never been arrested. It is on
a layman’s understanding of the principle of arrest and custody that prompted the respondent in the
first of the two appeals and the appellants in the second appeal to mention in column 13(A) that they
had never been arrested in connection with any criminal offence.

⮚ Mr. Patwalia referred to certain decisions of the Allahabad High Court, the Punjab High Court and the
Madras High Court which apparently supports his submissions.

⮚ Of the said decisions, the one in which the meaning of the two expressions arrest and custody have
been considered in detail is that of the Full Bench of the Madras High Court in Roshan Beevi’s case
(supra). The said decision was, however, rendered in the context of Sections 107 and 108 of the
Customs Act, 1962.

Sections 107 and 108 of the Customs Act authorises a Customs Officer empowered in that behalf to
require a person to attend before him and produce or deliver documents relevant to the enquiry or to
summon such person whose attendance is considered necessary for giving evidence or production of a
document in connection with any enquiry being undertaken by such officer under the Act. In such context
the Full Bench of the Madras High Court returned a finding that:
“custody and arrest are not synonymous terms and observed that it is true that in every arrest there is a
custody but not vice-versa. A custody may amount to arrest in certain cases, but not in all cases. It is in the
aforesaid circumstances that the Full Bench came to the conclusion that a person who is taken by the
Customs Officer either for the purpose of enquiry or interrogation or investigation cannot be held to have
come into the custody and detention of the Customs Officer and he cannot be deemed to have been
arrested from the moment he was taken into custody.”

⮚ In coming to the aforesaid conclusion, the Full Bench had occasion to consider in detail the meaning of
the expression arrest. Reference was made to the definition of arrest in various legal dictionaries and
Halsbury’s Laws of England as also the Corpus Juris Secundum. In paragraph 16 of the judgment it was
observed as follows:

16. From the various definitions which we have extracted above, it is clear that the word arrest
when used in its ordinary and natural sense, means the apprehension or restraint or the deprivation of
one’s personal liberty. The question whether the person is under arrest or not, depends not on the
legality of the arrest, but on whether he has been deprived of his personal liberty to go where he pleases.
When used in the legal sense in the procedure connected with criminal offences, an arrest consists in the
taking into custody of another person under authority empowered by law, for the purpose of holding or
detaining him to answer a criminal charge or of preventing the commission of a criminal offence.
The essential elements to constitute an arrest in the above sense are that:
✔ there must be an intent to arrest under the authority,
✔ accompanied by a seizure or detention of the person in the manner known to law, which is so
understood by the person arrested.
In this connection, a debatable question that arises for our consideration is whether the mere taking into
custody of a person by an authority empowered to arrest would amount to arrest of that person and
whether the terms arrest and custody are synonymous.

⮚ Faced with the decision of this Court in Niranjan Singh v. Prabhakar (AIR 1980 SC 785) the Full Bench
distinguished the same on an observation made by this Court that equivocatory quibbling that the
police have taken a man into informal custody but have not arrested him, have detained him in
interrogation but have not taken him into formal custody, were unfair evasion of the
straightforwardness of the law.
⮚ This Court went on to observe further that there was no necessity of dilating on the shady facet as the
Court was satisfied that the accused had physically submitted before the Sessions Judge giving rise to
the jurisdiction to grant bail. Taking refuge in the said observation, the Full Bench observed that the
decision rendered by this Court could not be availed of by the learned counsel in support of his
contentions that the mere taking of a person into custody would amount to arrest.
The Full Bench observed that mere summoning of a person during an enquiry under the Customs Act did
not amount to arrest so as to attract the provisions of Article 22(2) of the Constitution of India and the
stand taken that the persons arrested under the Customs Act should be produced before a Magistrate
without unnecessary delay from the moment the arrest is effected, had to fail.

Decision of the Supreme Court:

We are unable to appreciate the views of the Full Bench of the Madras High Court and reiterate the
decision of this Court in Niranjan Singh case. In our view, the law relating to the concept of arrest or
custody has been correctly stated in Niranjan Singh case (supra). Paragraphs 7, 8 and the relevant portion
of paragraph 9 of the decision in the said case states as follows:-

7. When is a person in custody, within the meaning of Section 439 Cr. P.C.? When he is, in duress
either because he is held by the investigating agency or other police or allied authority or is under the
control of the court having been remanded by judicial order, or having offered himself to the court’s
jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential
profusion is needed to come to the realistic conclusion that he who is under the control of the court or
is in the physical hold of an officer with coercive power is in custody for the purpose of Section 439.

This word is of elastic semantics but its core meaning is that the law has taken control of the person.

The equivocatory quibblings and hide-and-seek niceties sometimes heard in court that the police have
taken a man into informal custody but not arrested him, have detained him for interrogation but
not taken him into formal custody and other like terminological dubiotics are unfair evasion of the
straightforwardness of the law. We need not dilate on this shady facet here because we are satisfied
that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail
thus arose.

8. Custody, in the context of Section 439, (we are not, be noted, dealing with anticipatory bail
under Section 438) is physical control or at least physical presence of the accused in court coupled
with submission to the jurisdiction and order of the court.

9. He can be in custody not merely when the police arrest him, produces him before a Magistrate
and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he
surrenders before the court and submits to its directions.
Sections 107 and 108 of the Customs Act do not contemplate immediate arrest of a person being
summoned in connection with an enquiry, but only contemplates surrendering to the custody of the
Customs Officer which could subsequently lead to arrest and detention.
⮚ We also agree with Mr. Anoop Chaudhary’s submission that unless a person accused of an offence is in
custody, he cannot move the Court for bail under Section 439 of the Code, which provides for release on
bail of any person accused of an offence and in custody. The pre-condition, therefore, to applying the
provisions of Section 439 of the Code is that a person who is an accused must be in custody and his
movements must have been restricted before he can move for bail. This aspect of the matter was
considered in Niranjan Singh case where it was held that a person can be stated to be in judicial
custody when he surrenders before the Court and submits to its directions.

Decision of the SC on the issues involved in the Appeal:

⮚ It is no doubt true that in the instant case the accused persons had appeared before the concerned
Magistrates with their learned advocates and on applying for bail were granted bail without being
taken into formal custody, which appears to have swayed one of the benches of the Punjab and
Haryana High Court to take a liberal view and to hold that no arrest had actually been effected. The
said view, in our opinion, is incorrect as it goes against the very grain of Sections 46 and 439 of the
Code.
⮚ The interpretation of arrest and custody rendered by the Full Bench in Roshan Beevi case (supra) may
be relevant in the context of Sections 107 and 108 of the Customs Act where summons in respect of
an enquiry may amount to custody but not to arrest, but such custody could subsequently materialize
into arrest.
⮚ The position is different as far as proceedings in the court are concerned in relation to enquiry into
offences under the Indian Penal Code and other criminal enactments. In the latter set of cases, in order
to obtain the benefit of bail an accused has to surrender to the custody of the Court or the police
authorities before he can be granted the benefit thereunder. In Vol.11 of the 4th Edition of Halsbury’s
Laws of England the term arrest has been defined in paragraph 99 in the following terms:-

Meaning of arrest. Arrest consists in the seizure or touching of a person’s body with a view to his
restraint; words may, however, amount to an arrest if, in the circumstances of the case, they are calculated
to bring, and do bring, to a person’s notice that he is under compulsion and he thereafter submits to the
compulsion.

⮚ The aforesaid definition is similar in spirit to what is incorporated in Section 46 of the Code of Criminal
Procedure. The concept was expanded by this Court in State of Uttar Pradesh v. Deomen [AIR 1960 SC
1125] wherein it was inter alia observed as follows:-

“Section 46, Cr.P.C. does not contemplate any formality before a person can be said to be taken in custody.
Submission to the custody by words of mouth or action by a person is sufficient. A person directly giving a
police officer by word of mouth information which may be used as evidence against him may be deemed to
have submitted himself to the custody of the Police Officer.”

The sequatur of the above is that when a person, who is not in custody, approaches the police officer and
provides information, which leads to the discovery of a fact, which could be used against him, it would be
deemed that he had surrendered to the authority of the investigating agency.

⮚ It must, therefore, be held that the views expressed by the High Court in Dinesh Kumar’s writ petition
regarding arrest were incorrect, while the views expressed in the writ petitions filed by Lalit Kumar
and Bhupinder correctly interpreted the meaning of the expressions arrest and custody.
However, how far the same would apply in the ultimate analysis relating to the filling up of column 13(A)
is another matter altogether.

⮚ In our view, the reasoning given in Dinesh Kumar case in that context is a possible view and does not
call for interference under Article 136 of the Constitution. Conversely, the decision rendered in the writ
petitions filed by Lalit Kumar and Bhupinder has to be reversed to be in line with the decision in
Dinesh Kumar case.

When the question as to what constitutes arrest has for long engaged the attention of different High Courts
as also this Court, it may not be altogether unreasonable to expect a layman to construe that he had never
been arrested on his appearing before the Court and being granted bail immediately. The position would
have been different, had the person concerned not been released on bail. We would, in the facts of these
cases, give the benefit of a mistaken impression, rather than that of deliberate and wilful misrepresentation
and concealment of facts, to the appellants in the second of the two appeals as well, while affirming the
view taken by the High Court in Dinesh Kumar case.

⮚ Accordingly, although, we are of the view that the legal position as to what constitutes arrest was
correctly stated in the writ petitions filed by Lalit Kumar and Bhupinder, we confirm the order passed in
Dinesh Kumar case and extend the same benefit to Lalit Kumar and Bhupinder also.

⮚ In the result, the Civil Appeal arising out of SLP(C) No. 1840 of 2007 is dismissed, while the Civil Appeal
arising out of SLP(C) No.14939 of 2007 is allowed. The judgment of the High Court dated 22nd
September, 2005, impugned in the said appeal, is set aside and the concerned respondents are
directed to take steps to issue appointment letters to the appellants in the said appeals subject to
fulfillment of other conditions by them. It is also made clear that the appellants will be deemed to have
been appointed as Constable-Drivers with effect from the date, persons lower in merit to them were
appointed. However, while they will be entitled to the notional benefits of such continuous
appointment, they will be entitled to salary only from the date of this judgment on the basis of such
notional benefits.

The appeals are disposed of accordingly.

 Arnesh Kumar v. State of Bihar
(2014) 8 SCC 273

CHANDRAMAULI KR. PRASAD, J.:

⮚ The petitioner apprehends his arrest in a case under Section 498-A of the Penal Code, 1860
(hereinafter called as “IPC”) and Section 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 Section 4 of the Dowry Prohibition Act
is two years and with fine.

Facts of the Case:

⮚ The petitioner happens to be the husband of Respondent 2, Sweta Kiran. The marriage between them
was solemnized on 1-7-2007. His attempt to secure anticipatory bail has failed [Arnesh Kumar v. State
of Bihar, Criminal Misc. No. 30041 of 2013, order dated 8-10-2013 (Pat)] 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 lakhs, a Maruti car, an air conditioner, 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 non-fulfilment 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.

Observations of Court on Cases of the Offence of Cruelty under Section 498-A being used as weapon
rather than shield by disgruntled wives against their husbands and their relatives:

⮚ There is a phenomenal increase in matrimonial disputes in recent years. The institution of marriage is
greatly revered in this country. Section 498-A 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 IPC 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 under this provision. In a quite number of
cases, bedridden grandfathers and grandmothers of the husbands, their sisters living abroad for
decades are arrested. “Crime in India 2012 Statistics” published by the National Crime Records
Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012
for the offence under Section 498-A 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 the Penal Code. It accounts for 4.5% of total crimes
committed under different sections of the Penal Code, more than any other crimes excepting theft and
hurt. The rate of charge-sheeting in cases under Section 498-A IPC is as high as 93.6%, while the
conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending
trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.

⮚ Arrest brings humiliation, curtails freedom and casts scars forever. Lawmakers know it so also the
police. There is a battle between the lawmakers and the police and it seems that the police has not
learnt its lesson: the lesson implicit and embodied in CrPC. It has not come out of its colonial image
despite six decades of independence, it is largely considered as a tool of harassment, oppression and
 surely not considered a friend of public. The need for caution in exercising the drastic power of arrest
has been emphasised time and again by the courts but has not yielded desired result. Power to arrest
greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the
power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then
proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity
or act with oblique motive.

⮚ Law Commissions, Police Commissions and this Court in a large number of judgments emphasised 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 the 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.
Despite this legal position, the legislature did not find any improvement. Numbers of arrest have not
decreased.

⮚ Ultimately, Parliament had to intervene and on the recommendation of the 177th Report of the Law
Commission submitted in the year 2001, Section 41 of the Code of Criminal Procedure (for short
“CrPC”), in the present form came to be enacted. It is interesting to note that such a recommendation
was made by the Law Commission in its 152nd and 154th Report submitted as back in the year 1994.
The value of the proportionality permeates the amendment relating to arrest.

Power of Police Officer to Arrest without warrant - Section 41 of CrPC if Accused is Charged under
Section 498-A of IPC:

⮚ As the offence with which we are concerned in the present appeal, provides for a maximum
punishment of imprisonment which may extend to seven years and fine, Section 41(1)(b) CrPC which is
relevant for the purpose reads as follows:

“41. When police may arrest without warrant.—(1) Any police officer may without an order from a
Magistrate and without a warrant, arrest any person—
(a) ***
(b) against whom a reasonable complaint has been made, or credible information has been received,
or a reasonable suspicion exists that he has committed a cognizable offence punishable with
imprisonment for a term which may be less than 7 years or which may extend to 7 years whether with or
without fine, if the following conditions are satisfied, namely—
(i) ***
(ii) the police officer is satisfied that such arrest is necessary—
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear or tampering with
such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person acquainted
with the facts of the case so as to dissuade him from disclosing such facts to the court or to the police
officer; or
(e) as unless such person is arrested, his presence in the court whenever required cannot be ensured,
and the police officer shall record while making such arrest, his reasons in writing:

Provided that a police officer shall, in all cases where the arrest of a person is not required under the
provisions of this sub-section, record the reasons in writing for not making the arrest.”

⮚ From a plain reading of the aforesaid provision, it is evident that a person accused of an offence
punishable with imprisonment for a term which may be less than seven years or which may extend
to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction
that such person had committed the offence punishable as aforesaid.
⮚ A police officer before arrest, in such cases has to be further satisfied that:
✔ such arrest is necessary to prevent such person from committing any further offence; or
✔ for proper investigation of the case; or
✔ to prevent the accused from causing the evidence of the offence to disappear; or
✔ tampering with such evidence in any manner; or
✔ to prevent such person from making any inducement, threat or promise to a witness so as to dissuade
him from disclosing such facts to the court or the police officer; or
✔ unless such accused person is arrested, his presence in the court whenever required cannot be
ensured.

These are the conclusions, which one may reach based on facts.

⮚ The law mandates the police officer to state the facts and record the reasons in writing which led him
to come to a conclusion covered by any of the provisions aforesaid, while making such arrest.
⮚ The law further requires the police officers to record the reasons in writing for not making the arrest.

In pith and core, the police officer before arrest must put a question to himself,
⮚ why arrest?
⮚ Is it really required?
⮚ What purpose it will serve?
⮚ What object it will achieve?

It is only after these questions are addressed and one or the other conditions as enumerated above is
satisfied, the power of arrest needs to be exercised. Before arrest, first the police officers should have
reason to believe on the basis of information and material that the accused has committed the offence.
Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more
purposes envisaged by sub-clauses (a) to (e) of clause (ii) of Section 41(1)(b) of CrPC.

Constitutional and Statutory Right of Accused arrested without warrant:

⮚ An accused arrested without warrant by the police has the constitutional right under Article 22(2) of
the Constitution of India and Section 57 CrPC to be produced before the Magistrate without
unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the
journey:

During the course of investigation of a case, an accused can be kept in detention beyond a period of 24
hours only when it is authorised by the Magistrate in exercise of power under Section 167 CrPC.:

⮚ The power to authorise detention is a very solemn function. It affects the liberty and freedom of
citizens and needs to be exercised with great care and caution. Our experience tells us that it is not
exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine,
casual and cavalier manner.
⮚ Before a Magistrate authorises detention under Section 167 CrPC, he has to be first satisfied that the
arrest made is legal and in accordance with law and all the constitutional (& statutory) rights of the
person arrested are satisfied. If the arrest effected by the police officer does not satisfy the
requirements of Section 41 of the Code, Magistrate is duty-bound not to authorise his further detention
and release the accused. In other words, when an accused is produced before the Magistrate, the police
officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions
for arrest and the Magistrate in turn is to be satisfied that the condition precedent for arrest under
Section 41 CrPC has been satisfied and it is only thereafter that he will authorise the detention of an
accused.

⮚ The Magistrate before authorising detention will record his own satisfaction, may be in brief but the
said satisfaction must reflect from his order. It shall never be based upon the ipse dixit of the police
officer, for example, in case the police officer considers the arrest necessary to prevent such person
from committing any further offence or for proper investigation of the case or for preventing an
accused from tampering with evidence or making inducement, etc. the police officer shall furnish to
the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached
its conclusion. Those shall be perused by the Magistrate while authorising the detention and only
after recording his satisfaction in writing that the Magistrate will authorise the detention of the
accused.

⮚ When a suspect is arrested and produced before a Magistrate for authorising detention, the
Magistrate has to address the question whether specific reasons have been recorded for arrest and if
so, prima facie those reasons are relevant, and secondly, a reasonable conclusion could at all be
reached by the police officer that one or the other conditions stated above are attracted. To this
limited extent the Magistrate will make judicial scrutiny.

Section 41-A of the Code and its utility in avoiding unnecessary arrest:

⮚ Another provision i.e. Section 41-A CrPC aimed to avoid unnecessary arrest or threat of arrest looming
large on the accused requires to be vitalised. Section 41-A as inserted by Section 6 of the Code of
Criminal Procedure (Amendment) Act, 2008 (5 of 2009), which is relevant in the context reads as
follows:

41-A. Notice of appearance before police officer.—(1) The police officer shall, in all cases where the arrest
of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the
person against whom a reasonable complaint has been made, or credible information has been received, or
a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such
other place as may be specified in the notice.

(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the
terms of the notice.

(3) Where such person complies and continues to comply with the notice, he shall not be arrested in
respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the
opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to
identify himself, the police officer may, subject to such orders as may have been passed by a competent
court in this behalf, arrest him for the offence mentioned in the notice.”

⮚ The aforesaid provision makes it clear that in all cases where the arrest of a person is not required
under Section 41(1) CrPC, 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 officer is of the opinion that the arrest is
necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 CrPC has
to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.

Important Paras of the Judgement:

⮚ We are of the opinion that if the provisions of Section 41 CrPC 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 contained in Section 41 CrPC for effecting arrest be discouraged and
discontinued.

Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily
and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have
observed above, we give the following directions:

1) All the State Governments to instruct its police officers not to automatically arrest when a case under
Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the
parameters laid down above flowing from Section 41 CrPC;

2) All police officers be provided with a check list containing specified sub-clauses under Section
41(1)(b)(ii);

3) The police officer shall forward the check list duly filled and furnish the reasons and materials which
necessitated the arrest, while forwarding/producing the accused before the Magistrate for further
detention;

4) The Magistrate while authorising detention of the accused shall peruse the report furnished by the
police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise
detention;

5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date
of the institution of the case with a copy to the Magistrate which may be extended by the
Superintendent of Police of the district for the reasons to be recorded in writing;

6) Notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from
the date of institution of the case, which may be extended by the Superintendent of Police of the
district for the reasons to be recorded in writing;

⮚ Failure to comply with the directions aforesaid shall apart from rendering the police officers
concerned liable for departmental action, they shall also be liable to be punished for contempt of
court to be instituted before the High Court having territorial jurisdiction.

⮚ Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned
shall be liable for departmental action by the appropriate High Court. [Why not Contempt of Court?]
Read this para carefully: We hasten to add that the directions aforesaid shall not only apply to the cases
under Section 498-A IPC or Section 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.

2. 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.

Appeal Allowed and Appellant granted Bail:

⮚ By order dated 31-10-2013 [Arnesh Kumar v. State of Bihar, (2014) 8 SCC 469], 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 31-10-2013 [Arnesh Kumar v.
State of Bihar, (2014) 8 SCC 469] absolute; with the directions aforesaid.
 Dilip K. Basu v. State of West Bengal
(1997) 6 SCC 642
Dr. A.S. Anand and K.T. Thomas, JJ.
ORDER

On 18-12-1996 in D.K. Basu v. State of West Bengal [(1997) 1 SCC 416] this Court laid down certain basic
“requirements” to be followed in all cases of arrest or detention till legal provisions are made in that behalf
as a measure to prevent custodial violence. The requirements read as follows:

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. [See,
Section 41B (a) of CrPC Inserted by Code of Criminal Procedure (Amendment) Act, 2008]

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 either be 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. [See, Section
41B (b) of CrPC Inserted by Code of Criminal Procedure (Amendment) Act, 2008]

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. [See, Section 41B (c) of CrPC Inserted by Code of
Criminal Procedure (Amendment) Act, 2008]

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
Organisation in the district and the police station of the area concerned telegraphically within a period of
8 to 12 hours after the arrest. [See, Section 41C (2) of CrPC Inserted by Code of Criminal Procedure
(Amendment) Act, 2008]

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 on the panel of approved doctors appointed by Director,
Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a
panel for all tehsils and districts as well. [Section 54 substituted by Code of Criminal Procedure
(Amendment) Act, 2008]
9. Copies of all the documents including the memo of arrest, referred to above, should be sent to the
Illaqa Magistrate for his record.

10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout
the interrogation. [Section 41D inserted by Code of Criminal Procedure (Amendment) Act, 2008]

11. A police control room should be provided at all district 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.”[Incorporated in CrPC under Section 41C by Code of Criminal Procedure
(Amendment) Act, 2008]

This Court also opined that failure to comply with the above requirements, apart from rendering the
official concerned liable for departmental action, would also render him liable to be punished for
contempt of court and the proceedings for contempt of court could be instituted in any High Court of the
country, having territorial jurisdiction over the matter.

This Court further observed:

⮚ The requirements mentioned above shall be forwarded to the Director General of Police and the Home
Secretary of every State/Union Territory and it shall be their obligation to circulate the same to every
police station under their charge and get the same notified at every police station at a conspicuous
place. It would also be useful and serve larger interest to broadcast the requirements on All India Radio
besides being shown on the National Network of Doordarshan and by publishing and distributing
pamphlets in the local language containing these requirements for information of the general public.
Creating awareness about the rights of the arrestee would in our opinion be a step in the right
direction to combat the evil of custodial crime and bring in transparency and accountability. It is hoped
that these requirements would help to curb, if not totally eliminate, the use of questionable methods
during interrogation and investigation leading to custodial commission of crimes.

⮚ More than seven months have elapsed since the directions were issued. Through these petitions, Dr
Singhvi, the learned amicus curiae, who had assisted the Court in the main petition, seeks a direction,
calling upon the Director General of Police and the Home Secretary of every State/Union Territory to
report to this Court compliance of the above directions and the steps taken by All India Radio and the
National Network of Doordarshan for broadcasting the requirements.

⮚ We direct the Registry to send a copy of this application, together with a copy of this order to
Respondents 1 to 31 to have the report/reports from the Director General of Police and the Home
Secretary of the State/Union Territory concerned, sent to this Court regarding the compliance of the
above directions concerning arrestees. The report shall indicate, in a tabular form, as to which of the
“requirements” have been carried out and in what manner, as also, which are the “requirements”
which still remain to be carried out and the steps being taken for carrying out those.

Report shall also be obtained from the Directors of All India Radio and Doordarshan regarding broadcasts
made.

The notice on Respondents 1 to 31, in addition, may also be served through the standing counsel of the
respective States/Union Territories in the Supreme Court. After the reports are received, copies of the same
shall be furnished to the Advocate-on-Record for Dr Singhvi, Ms. Suruchi Aggrawal, Advocates.

The reports shall be submitted to this Court in the terms, indicated above, within six weeks from today. The
matters shall be put up on board for monitoring, after seven weeks.
 Bail

Relevant Provisons: Section 436 to 450 (Chapter XXXIII) of CrPC. [Other relevant provisions as well for example Proviso to
Section 167(2) etc.]

1. Meaning & Object of Bail

Meaning of Bail: What is the difference between bond and bail bond?

The word 'bail' is not defined in CrPC.

Bail means security for the appearance of accused person on giving which he is released pending trial or investigation.
[Quoted from Law Lexicon in Govind Prasad v. State of W.B., 1975 CriLJ 1255 (Cal)]

What is contemplated by bail is to 'procure the release of a person from legal custody, by undertaking that he shall
appear at the time and place designated and submit himself to the jurisdiction and judgment of the court.' [Black's Law
Dictionary 4th edn. 177]

Supreme Court in Moti Ram v. State of M.P., (1978) 4 SCC 47, has held that bail covers both release on one's own bond,
with or without sureties.

Note: In dealing with the application for bail, the courts in India has accepted the principle that bail is the rule and jail is the
exception.
 The provisions relating to bail under CrPC are aimed at:
ensuring the presence of the accused at his trial but without unreasonably and unjustifiably interfering with his liberty.

In other words, accused is arrested primarily to secure his appearance at the time of trial and to ensure that in case he is found
guilty he is available to receive to recieve the sentence. However, if his presence at the trial could be reasonably ensured
otherwise than by his arrest, it would be unjust and unfair to deprive the accused of his liberty during the pendency of the
criminal proceedings against him.

The law relating to bail has to dovetail two conflicting demands, namely, on one hand, the requirements of the society for
being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime;
and on the other hand the fundamental canon of criminal jurisprudence, viz,, the presumption of innocence of an accused
till he is found guilty.

In order to subserve the aforesaid objectives, the legislature in its wisdom has enacted provisions prescribing precise
directions for granting or not granting bail.

Where a provision in CrPC allows discretion in the grant of bail, the discretion is to be exercised according to the guidelines
provided by law; in addition the courts have evolved certain norms for the proper exercise of such discretion.
Where the arrested person:
accused of comitting heinous offence/s and is likely to be convicted and punished severly for such crime, he would be
prone to abscond or if given bail, he might jump bail in order to avoid trial and consequntial sentence.

is likely to put obstruction in the conduct of fair trial either by destroying evidence or by tampering with the prosecution
witnesses or is likely to commit more offences during the period of his release on bail.
In such cases, it would be improper or unwise to release the arreseted accused person on bail

▪ On the other hand, where there are no such risks involved in releasing the accused person on bail, it would be cruel and
unjust to deny him the bail.
 2. Bailable and Non-Bailable Offences
CrPC has classified all offences into 'bailable' and 'non-bailable' offences. The classification of offences into bailable and
non-bailable hs been devised for making a thresold decision as to whether the accused person should be released on bail
as a matter of right which inheres in the arrested accused person.

Interestingly both are defined under the same clasue of section 2 of the Code. Acording to section 2(a):

Bailable offence means offence which is shown as bailable in the First Schedule or which is made bailable by any other
law for the time being in force.

Non-bailable offence means any other offence (i.e. other than bailable offences)

It is clear from the above definitions that the Code has not given any test or criterion to determine whether any particular
offence is bailable or non-bailable. It all depends on whether it has been shown bailable or non-bailable in the First
Schedule of the Code.

In other words the First Schedule refers to all the offences under the Indian Penal Code, 1860 and puts them into bailable
and non-bailable categories.

Second part of the First Schedule of the Code deals with offences other than that of IPC and provides that:
if the offence is punishable with imprisonment for less than 3 years or with fine only that offence shall be treated bailable
offences.
if the offence is punishable with death, imprisonment for life or imprisonment for 3 years or more that offence shall be
treated non-bailable offences.
Note 1: In case of bailable offence, accused can claim bail as a matter of right. If he is fulfilling all other conditions, Court or
Officer in Charge of Police Station cannot deny bail.

Exception to the above rule is contained in Section 436(2).

Note 2: In case of non- bailable offence, accused cannot claim bail as a matter of right. Court or Officer in Charge of Police
Station may grant bail. It is discretion of Court or Officer in Charge of Police Station to grant bail.

There are certain exceptional cases when granting of bail is mandatory in non-bailable offences as well. For example, section
167, section 437(2), section 437(6), and section 437(7) etc.
 3. Circumstances in which Release on Bail is Imperative/Mandatory
(i) Cases other than those of Non-Bailable Offences (i.e. Cases involving Bailable Offences):
Section 436 of the Code provides that when a person not accused of a non-bailable offence is arrested or detained he can, as
of right, claim to be released on bail. The section covers all cases of:

persons accused of bailable offences;

persons though not accused of any offence but against whom security proceedings have been initiated under Chapter VIII
of the Code;
all other cases of arrest and detention which are not in respect of any bailable or non-bailable offence.

Section 436 reads thus:

(1) When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of
a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the
proceeding before such Court to give bail, such person shall be released on bail:
Provided that such officer or Court, if he or it thinks fit, may, and shall, if such person is indigent and is unable to furnish surety, instead of
taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided.

Explanation: Where a person is unable to give bail within a week of the date of his arrest, it shall be a sufficient ground for the officer or the
Court to presume that he is an indigent person for the purposes of this proviso:
Provided further that nothing in this section shall be deemed to affect the provisions of sub-section (3) of section 116 or section 446A.

(2) Notwithstanding anything contained in sub-section (1), where a person has failed to comply with the conditions of the bail-bond as regards
the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears
before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person
bound by such bond to pay the penalty thereof under section 446. [Exception to General Rule under sub-section (1)]
Brief discussion on Section 436:
As soon as it appears that the accused person is prepared to give bail, the police officer or the court, before whom he
offers to give bail, is bound to release him on such terms as to bail as may appear to the police officer or court to be
reasonable.

Police officer or court may release an indigent person on executing his bond instead of taking bail from him. [See provsio
to Section 436(1)]

Note: Section 50(2) makes it obligatory for a police officer arresting without warrant a person accused of a bailable offence t
inform of his right to be released on bail.

Q. Whether a person who has been released on bail under section 436 by the police officer should seek a fresh bail from the
court?

Interpretation of word 'appears':

The word 'appears' in section 436(1) is wide enough to include voluntary appearance of the person accused of an offence
even where no process has been issued against him. In other words, the surrender and the physical presence of the
accused with submission to the jurisdition of the court is judicial custody and the accused may be granted bail and released
from such custody.

Second proviso to section 436 saves section 116(3) and section 446-A:
Acording to section 116(3) a person against whom security proceedings for keeping peace or maintaining or good behaviour
have been started may be detained in custody if he fails to furnish an interim bond as required by the court in such
proceedings.
 The provision contained in Section 446-A regarding the forfeiture and the cancellation of the bond on breach of any
condition and cnsequent contraint imposed on fresh release on bail in the same case shall have an overriding effect on
the general rule as to release on bail contained in section 436(1)

Note: The right to be released on bail under section 436(1) cannot be nullified indirectly by fixing too high the amount of
bond or bail-bond to be furnished by the person seeking the bail.

[On this point refer to section 440(1) which provides that the amount of every such bond shall be fixed with due regard to
the circumstances of the case and shall not be excessive. Further section 440(2) empowers the High Court and the Court of
Session to direct, if found necessary, that the bail required by a police officer or Magistrate may be reduced.]

There is no specific provision for appeal against the orders refusing to grant bail under section 436(1), the High Court or
Court of Session can be moved under section 439 for bail.

Legel consequence of refusal to grant bail in contravention of section 436: Refusal to grant bail to the accused person in
contravention of section 436 will make the detention illegal and the police officer causing such detention may be held guilty
of wrongful confinement under section 342 of IPC.

Note: If a person released on bail under section 436(1) indulges in acts which are entirey subversive of a fair trial, the High
Court of Court of Session may cancel his bail and commit him to custody.
(ii) Right to be Released on Bail if Investigation not Completed within the Number of Days Presribed under Section 167:

Acording to the provisions contained in Section 167, the total period of detention of an accused person shall not exceed:
90 days - where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for
a term of 10 years or more

60 days - where the investigation relates to any other offence.

On expiry of this period of 90 days or 60 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 so released on bail shall be deemed to be so released under the
provisions of Chapter XXXIII of the Code for the purpose of that Chapter. [Para(a) to proviso to section 167(2)]

This provision is applicable irrespective of the fact that the offence of which the detained person is accused of is
non-bailable or the case is such that the bail cannot be granted according to the provisions of Chapter XXXIII of the Code
dealing with bail and bonds.
Therefore, if it is not possible to complete the investigation within a period of 60 days or 90 days, as the case may be, then
even in serious and ghastly types of crimesthe accused will be entitled to be released on bail.

The right to obtain bail provided under proviso to section 167(2) is subject to cancellation of bail if the requirements of
section 437(5) are satisfied.

The order for release on bail passed under proviso to section 167(2) is not extinguished or defeated by discharge of surety
or lapse of time. Nor is it defeated by the filing of charge-sheet or by remand to custody under section 309(2).
 Bail under the proviso to section 167(2), would not be available to the accused who makes the application after the filing
of charge-sheet beyond the prescribed period of 60 days or 90 days, as the case may be.

However, if the bail application is made after 60 days or 90 days, but before the submission of the charge-sheet, the
accused can be granted bail.

Object of Proviso (a) to section 167(2): To put pressure on the invesigation agency to complete the investigation
expeditiously and within a reasonable time.

Note: In a case where it is found that the person released on bail under the mandatory provision of proviso (a) to section
167(2) is misusing his freedom by tampering with the prosecution witnesses or by attempting to flee from justice by
absconding, the competent court is empowered to cancel the bail. Also the court may also stay the operation of bail in
exerise of its inherent powers provided under section 482 of the Code.
(iii) No Reasonable Ground for Believing the Accused Guilty of a Non-Bailable Offence but Sufficient Ground for further
Inquiry:

When there are no reasonable grounds to believe that the accused was involved in the commission of a non-bailable
offence, the accused shall be released on bail under section 436.

A similar situation is contemplated by section 437(2) which provides that

when any person accused of or suspected of the commission of any non-bailable offence is arrested or detained
without warrant by an officer-in-charge of a police station or appears or is brought before the court, and
If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there
are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are
sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of section 446A and
pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a
bond without sureties for his appearance as hereinafter provided.

Further, an officer or a court releasing any person on bail under section 437(2) is required to record his or its reasons for
doing so [Section 437(4)]
(iv) Trial not Concluded within 60 days:

If in any case triable by a Magistrate, the trial of a person accused of any 'non-bailable offence' is not concluded within a
period of 60 days from the first date fixed for taking evidence in the case, the accused person standing trial, shall, if in
custody during the whole of the said period be released on bail to the satisfaction of the Magistrate, [unless for reasons
to be recorded in writing the Magistrate otherwise directs]. [Section 437(6)]

Object of section 437(6): To avoid hardship to accused person in non-bailable cases where the trial proceedings are
prolonged unresonably beyond 60 days.

Note: The cases triable by Court of Session are not within the purview of this provision.

(v) Release on Bail after Conclusion of the Trial but before the Judgment is Delivered:

According to Section 437(7), if, at any time, after the conclusion of the trial of a person accused of a non-bailable offence
and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused
is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without
sureties for his appearance to hear judgment delivered.
Maximum Period for which an Undertrial Prisoner can be Detained [Section 436-A]

Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not
being an offence for which the punishment of death has been specified as one of the punishments under that law)
undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that
offence under that law,
he shall be released by the Court on his personal bond with or without sureties:

Proviso 1: the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the
continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the
personal bond with or without sureties:

Proviso 2: further that no such person shall in any case be detained during the period of investigation, inquiry or trial for
more than the maximum period of imprisonment provided for the said offence under that law.

Explanation: In computing the period of detention under this section for granting bail, the period of detention passed due to
delay in proceeding caused by the accused shall be excluded.
 4. Circumstances in which Granting of Bail is Discretionary in Cases of Non-Bailable Offences

Except in the circumstances that we have already discussed in previous lecture/s, bail can only be a matter of discretion if
the offence is non-bailable.

The scope of the discretion depends upon various considerations such as:
Scope of discretion varies in inverse proportion to the gravity of the crime. As the gravity of the offence increases, the
discretion to release the offender on bail gets narrowed down.

As between the police officers and the courts, wider discretion to grant bail has been given to the courts.

Among the criminal courts, High Court or a Court of Session has far wider discretion than that given to Courts of Judicial
Magistrates

Note: Whether discretion in granting bail is wide or narrow, it ought not to be used in an arbitrary manner. In other words,
discretion means sound discretion guided by law and it must not be arbitrary, vague and fanciful but legal and regular.

Now we will discuss in detail the rules and principles as laid down by the Code and judicial decisions t govern the exercise of
discretion to grant bail in cases of 'non-bailable' offences
(i) Discretion in Granting Bail, how to be Exercised
According to Section 437(1): when any person accused of, or suspected of, the commission of any non-bailable offence is
arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court
other than the High Court or Court of session, he may be released on bail.
The word 'may' in the above provision clearly indicates that the police officer or the court has discretion in granting bail.

The word 'appears' in section 437(1) is wide enough to include voluntary appearance of the accused person and he/she
may be released on bail.

While considering the question of bail in cases of 'non-bailable' offences, there cannot be very rigid and inflexible rules;
however the courts while exercising their discretion to grant bail can look to the following circumstances.
(a) the enormity of the charge;
(b) the severity of the punishment which the convicton will entail;
(c) the nature of the evidence in support of the accusation;
(d) the danger of the accused person's absconding if he is released on bail;
(e) the danger of witnesses being tampered with;
(f) the protracted nature of trial;
(g) opportunity to the bail applicant for preparation of his defence and access to his counsel;
(h) the health, age and sex of the accused;
(i) the nature and gravity of the circumstances in which the offence is committed;
(j) the position and the status of the accused with reference to the victim and the witnesses;
(k) the probability of accused committing more offences if released on bail, etc.; and
(l) interets of society
There are also other considerations and the above is by no means an exhaustive catalogue of the factors which should
weigh wth the courts while exercising their discretion to grant bail in 'non-bailable' offences.
Issue: Whether bail can be granted on the basis of parity?

Simply because a co-accused has been granted bail, the remaining accused/s cannot be grnated bail as a matter of right.
The principle of parity is a desirable rule but it is not mandatory.

Also another important point is that it is not a binding rule that if bail has been granted by court to a co-accused, then the
court is not bound to grant bail to similarly placed co-accused.

Allahabad High Court in Yunis v. State of U.P., 1999 CriLJ 4094 (All), made the following observation on the issue of granting
bail on the basis of parity:

As regards the principle of parity in matter of rejection of bail application, it may be observed that law of parity is a desirable
rule. In matter of release on bail to the co-accused may be applied where the case of the co-accused is identically similar, but
cannot be applied for rejecting the bail appliation of co-accused. A co-accused cannot be denied bail, merely on the ground
that the bail of another accused has been rejected bthe Court earlie, the obvious reason being that while the earlier bail order
denying bail to another co-accused was passed, the latter co-accused applying for bail was not heard.

Note: The mere fact that an accused person may be required for being identified by witnesses during investigation shall not be
sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he
shall comply with such directions as may be given by the Court [Third Proviso to Section 437(1)]
 An order of refusing an application for bail does not necessarily preclude subsequent bail application/s, on a later
occassion, giving more details, materials, further developments and different considerations.
Therefore successive bail applications can be entertained by court when there is a substantive change in fact situation or
cirumstances during the period between the two applications.

Recording of Reasons Mandatory, if Bail Granted in Cases of Non-Bailable offences:

According to sub-section (4) of section 437, an officer or a Court releasing any person on bail under sub-section (1) or
sub-section (2) of section 437, shall record in writing his or its reasons or special reasons for so doing.
This requirement would enable the appellate court or revisional court to see whether the discretion in the matter of bail was
properly exercised.

Where an order refusing or granting bail does not furnish the reasons that inform the decision, there is a presumption of
non-application of mind.

(ii) No Bail in Case of Offence Punishable with Death or Imprisonment for Life
In case of a person under arrest or detention as mentioned in sub-section(1) of section 437, if there appear reasonable
grounds for believing that he has been guilty of an offence punishable with death or life imprisonment, he shall not be
released on bail. [Section 437(1)(i)]
However the court may direct that a person referred above be released on bail if such person is under the age of 16
years or is a woman or is sick or infirm. [First Provisio to section 437(1)]

Note: It is not every sickness that entitles an accused person to the grant of bail. The sickness contemplated by the proviso is
a sickness which involves a risk or danger to the life of the accused person if he is kept in jail.
 The court releasing any person on bail under the first proviso to section 437(1) will have to record in writing its reasons or
special reasons for doing so. [Section 437(4)]

Fourth Provisp to section 437(1) provides for hearing the Public Prosecutor before the accused person is given bail if the
offence is punishable with death, imprisonment for life or imprisonment for seven years or more.

Q. How the phrase 'an offence punishable with death or imprisonment for life' in section 437(1)(i) be interpreted?

(iii) Habitual Offender or Person previously Convicted of Serious Offence not to be Released on Bail:

If any person who had been previously convicted of an offence punishable with death, imprisonment for life or
imprisonment for 7 years or more, or had been previously convicted on two or more occasions of non-bailable and
cognizable offence punishable with imprisonment for 3 years or more but not less than 7 years; is arrested or detained
without warrant by an officer incharge of a police station or appears or is brought before a court other than the High Court
or Court of Session for commission of non-bailable offence, he SHALL NOT be released on BAIL. [Section 437(1)(ii)]

However, if such person is under the age of 16 years or is a woman or is sick or infirm or for any other special reasons the
court considers it just and proper to release him on bail, the court may direct that he be released on bail. [See First and
Second Proviso to section 437(1)]

While directing the release on bail under the abovementioned provision, the court shall record reasons for or special reasons
for doing so. [Section 437(4)]
(iv) Grant of Bail with Condition is Non-Bailable Offences:

Cases often arise under section 437, where, though the court regards the case as fit for the grant of bail, it regards the
impositon of certain conditionsas necesssary in the circumstances. To meet this need sub-section (3) of section 437 which
reads thus:

437(3): When a person accused or suspected of the commission of an offence punishable with imprisonment which may
extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of
1860) or abatement of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1),the
Court shall impose the conditions,—

(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,

(b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the
commission of which he is suspected, and

(c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with
the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the
evidence,

and may also impose, in the interests of justice, such other conditions as it considers necessary
Therefore under sub-section (3) of section 437:

The power to impose condition has been given to the court and not to any police officer;
the power to impose conditions can only be exercised
(a) where offence is punishable with imprisonment which may extend to 7 years or more; or
(b) where the offence is one under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860)
(c) where the offence is one of the abetment of, or conspiracy to, or attempt to commit any such offence as mentioned
above.

Note: No such condition be imposed under sub-section(3) which is in derogation of any fundamental right of the accused
guaranteed under the Constitution.

Note: In 2009, section 437-A was added to the Code to ensure the presence of the accused before the Appellate Court.
(v) Approver in Custody not to be Released on Bail

According to section 306(4)(b) of the Code, every person accepting a tender of pardon under section 306(1) shall, unless he
is already on bail, be detained in custody until the termination of the trial.

The effect of this provision is to take away the discretion to grant bail by providing that the approver shall be detained in
custody till the termination of trial.

Object: To protect the approver from the wrath of his associates whom he seeks to expose, to prevent him from the
temptation of saving his companions and to ensure his presence in court till the completion of the trial.

Note: The High Court, in exercise of the inherent powers under section 482, may release the approver on bail in exceptional
circumstances to prevent the abuse of the process of the court or to secure the ends of justice.
 5. Special Powers of High Court or Court of Session in the Matter of Granting Bail

Section 439 [more specifically sub-section (1)] of the Code gives very wide discretion to the High Court and the Court of
Session in the matter of granting bail. Section 439 reads thus:
Section 439 - Special powers of High Court or Court of Session regarding Bail:

(1) A High Court or Court of Session may direct -

(a) that any person accused of an offence and in custody be released on bail, and
if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the
purposes mentioned in that sub-section;

(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:

First Proviso: that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable
exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for
bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

Second Proviso: that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence under
sub-section(3) of section 376 or section 376-AB, or section 376-DA, or section 376-DB of IPC, give notice of the application for bail to the
Public Prosecutor within a period of 15 days from the date of receipt of the notice of such application.

(1-A) The presence of the informant or any person authorised by him/her shall be obligatory at the time of hearing of the application for bail
to the person under sub-section(3) of section 376 or section 376-AB, or section 376-DA, or section 376-DB of IPC.

(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit
him to custody. [Cancellation of Bail]
Comments on Section 439:

A person can move the High Court or the Court of Session for bail under section 439 only when he is in custody (be it
police or judicial custody)

An accused who is in custody can directly approach the Sessions Court or the High Court for regular bail under section
439 even if he has not approached the Magistrate i the first instance. [Sundeep Kumar Bafna v. State of Maharashtra,
(2014) 16 SCC 623]

The discretion to grant bail given to the High Court and the Court of Session under section 439 is not fettered in terms by
the restrictions contained in section 437, but, on principle, these restrictions should equally govern the exercise of the
discretion by them under section 439, in as much as section 439 is in a way an expansion of section 437.

Therefore the overriding considerations in granting bail which are common both in the case of section 437(1) and section
439(1) are:
the nature and gravity of the circumstances in which the offence is committed;
the position and the status of the accused with reference to the victim and the witnesses;
the liklihood of the accused fleeing from justice, of repeating the offence, of jeopardising his own life being faced with a
grim prospect of possible conviction in the case, of tampering with witnesses;
criminal antecedents of the accused;
the history of the case as well as investigation and other relevant grounds;
Note: Although the High Court has concurrent jurisdiction with the Court of Session to grant bail under section 439, it is
considered desirable that the lower court should first be moved in the matter. Therefore, only in exceptional or special
circumstances an application for bail may be directly made to the High Court.

As the courts other than the High Court or Court of Session granting bail have powers to set forth any condition which
they consider necessary in the interest of justice, as provided under section 437(3), the higher court exercising power
under section 439 should have the power to examine the correctness of that order in all its aspects and to modify or set
aside any portion of the same if it is considered necessary.
 6. Cancellation of Bail

According to section 437(5), any court which has released a person on bail under sub-section (1) and sub-section (2) of
section 437 may, if it considers it necessary to do so, directs that such person be arrested and committed to custody.

Some Points to Remember on Cancellation of Bail:

The power to cancel bail has been given to the court and not to a police officer.

It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case as cancellation of
bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of
supervening circumstances, it would be no longer conducive to a far trial to allow the accused to retain his freedom
duringthe trial.

Any challenge to an order of a court granting bail on the ground of it being illegal or contrary to law can be determined
only by a court superior to the court granting it.
The court has been given power and discretion to cancel the bail, but the section does not give any guidance as to when and
how the discretion is to be exercised.

In Public Prosecutor v. George Williams, AIR 1951 Mad 1042, the Madras High Court Pointed the five cases where a person
granted bail, may have the bail cancelled and be recommitted to jail:

(i) Where the person on bail, during the period of bail, commits the very same offence for which he is being tried or has
been convicted, and thereby proves his utter unfitness to be on bail;

(ii) If he hampers the investigation as will be the case if he, when on bail, forcibly prevents the search of places under his
control for the incriminating things;

(iii) If he tampers with the evidence as by intimidating the prosecution witnesses, interfering with the scene of the offence
in order to remove traces or proofs of the crime, etc.;

(iv) if he runs away to a foreign country, or goes underground, or beyond the control of his sureties; and

(v) If he commits acts of violence, in revenge, against the police and the prosecution witnesses and those who have
booked him or trying to book him.
Cancellation of Bail by the High Court or Court of Session [Section 439(2)]

According to section 439(2) High Court or a Court of Session may direct that any person who has been released on bail
under Chapter 33 of the Code be arrested and committed to Jail. [Power of Cancellation of Bail]

The power of cancellation of bail given to High Court and Court of Session are very wide.

Under section 439(2), a High Court may commit a person released on bail under Chapter 33 of the Code by any court
including the Court of Session to custody, if it thinks appropriate to do so.

However, a Court of Session cannot cancel a bail which has already been granted by the High Court unless new
circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court.

If Court of Session had admitted an accused person to bail, the State has following options which are as follows:

(i) If certain new circumstnaces have arisen which were not earlier known to the State and to the Court
(a)The State may move the Session Judge .
(b) The State may as well approach the High Court being the superior court under section 439(2) to commit the accused
to custody.

(ii) If there are no new circumstances that have cropped up except those already existed at the time of granting bail by the
Sessions Court.
(a) The State may move to the High Court for cancellation of bail under section 439(2).
 There is no absolute bar against an informant to move for cancellation of bail under section 439(2). Besides the factors
necessary to be considered when the application is made by the State, the additional considerations which will weigh
with the court to exercise power of cancellation of bail at the instance of a private person are whether the order granting
bail has resulted in gross miscarriage of justice; is wholly an abuse of the process of law and whether there is any real
threat or risk to the informant or his party due to the accused being at large.

Pertinent to quote the following observation of Supreme Court in R. Rathinam v. State, (2000) 2 SCC 391:

“It is not disputed before us that the power so vested in the High Court can be invoked either by the State or by any aggrieved
party. Nor is it disputed that the said power can be exercised suo motto by the High Court.”
 7. Anticipatory Bail

(a) Object of Section 438:

Section 438 makes a provision enabling the superior courts to grant anticipatory bail, i.e. a direction to release a person on
bail issued even before the person is arrested. The Law Commission of India considered the need for such a provision and
observed:

“ The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals
in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent
times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases,
where there are reasonable grounds for holding that a person acused of an offence is not likely to abscond, or otherwise
misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some
days and then apply for bail.”
Section 438 of CrPC reads as follows:

(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable
offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such
arrest he shall be released on bail; and that Court may, after taking into consideration, inter-alia, the following factors,
namely—

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on
conviction by a Court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and.
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested,

either reject the application forthwith or issue an interim order for the grant of anticipatory bail;

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this
sub-Section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police
station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

(1A) Where the Court grants an interim order under sub-Section (1), it shall forthwith cause a notice being not less than 7
days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police,
with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally
heard by the Court.
(1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application
and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such
presence necessary in the interest of justice.

(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in
such directions in the light of the facts of the particular case, as it may thinks fit, including:
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person
acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under sub-Section (3) of section 437, as if the bail were granted under that
section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and
is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released
on bail, and
if a Magistrate taking cognizance of such offence decides that a warrant should be issued in the first instance against that
person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-Section (1).

(4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an
offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of IPC, 1860.
Under the revised section 438 the prosecution gets maximum opportunity for presenting its case before the grant of
anticipatory bail and the factors that go into the decision of the Court granting such bail has been spelt out clearly in the
section.
(b) Meaning of Anticipatory Bail:
The expression 'anticipatory bail' is not found in section 438 or in any other provision of the Code. This expression is a
convenient mode of conveying that it is possible to apply for bail in anticipation of arrest.
When the court grants 'anticipatory bail', what it does is to make an order that in the event of arrest, a person shall be
released on bail.
It is to be noted that there is no question of release on bail unless a person is arrested, and, therefore, it is only on arrest
that the order granting 'anticipatory bail' becomes operative. The section however makes no distinction when the arrest
is apprehended at the hands of the police or at the instance of the Magistrate.
The issuance of warrant by the Magistrate against a person justifiably gives rise to aprehension of arrest and entitles a
person to file an application for granting of 'anticipatory bail'. Also issuance of summons for appearance also entitles an
accused person to apply for 'anticipatory bail'.

Note: The distinction between an order of regular bail and an order of 'anticipatory bail' is that whereas the former is
granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest
and is therefore effective at the very moment of arrest.

(c) Concurrent Jursidiction of High Court and Sessions Court:

Accordg to section 438(1) an application for 'anticipatory bail' can be made to the High Court or Sessions Court. Normally
it is to be presumed that the Court of Session wouold be first approached for the grant of 'anticipatory bail' unless an
adequate case is made out for straightaway appraoching the High Court directly without first approaching the Court of
Session.
The Full Bench of Allahabad High Court in Onkar Nath Agarwal v. State, 1976 CriLJ 1142, has, however, taken the view
that a bail application uner section 438 may be moved in the High Court without the applicant taking recourse to the
Court of Session.
Note: As bail is against arrest and detention, in addition to the courts within whose jurisdiction the alleged offence has been
committed or where an FIR is lodged , an appropriate court within whose jurisdiction the arrest takes place or is apprehended
or contemplated will also have jurisdiction to grant bail to the person concerned.

(d) Reasonable Apprehension of Arrest for a Non-Bailable Offence:

Section 438(1) confers on the High Court and the Cout of Session the power to grant 'anticipatory bail' if the applicant has
reason to believe that he may be arrested on the accusation of having committed 'a non-bailable offence'.

For the purpose of applying for 'anticipatory bail', if the offence is non-bailable, it is mmaterial for the purpose of section
438 whether te offence is cognizable or non-cognizable or whether it is one under IPC or under any other law like Customs
Act, 1962. There is no restriction on granting 'anticipatory bail' merely because the alleged offence is punishable with
most severe punishments.

The use of expression 'reason to believe' shows that the belief that the applicant may be so arrested must be founded on
reasonable grounds. Mere 'fear' is not 'belief' for which reason it is not anough for the applicant to show that he has some
sort of a vague apprehension that someone is going to make an accusation against him, in pursuance of which he may be
arrested.
The grounds for 'reason to believe' under section 438 must be capable of being examined by the court objectively,
beacuse it is then alone that the court can determine wether the applicant has reason to believe that he may be so
arrested.

Note: Section 438 does not require that the offence in respect of which the 'anticipatory bail' is asked for has been registered
with the police. In other words, the filing of FIR is not a condition precedent to the exercise of the power under this section.
(e) Wide Discretion in Granting Anticipatory Bail:
The words, 'may, it thinks fit' used in section 438(1) and the absence of any specific restraints on the exercise of the power
to grant 'anticipatory bail' clealry indicate that the legislature has conferred very wide discretion on the High Court and
the Court of Session to grant such bail.

Therefore these courts in the exercise of their judicial discretion can grant 'anticipatory bail' if they consider it fit to do so
on the particular facts and circumstances of the case and on such conditions as the case may warrant .

Similarly these courts are free to refuse 'anticipatory bail' if the circumstances of the case so warrant, on considerations
mentioned under the Code and laid down in relevant judicial decisions.

Note: We will discuss the decision of Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab, (1980) on this point.

The court while granting 'anticipatory bail' should record reasons for doing so.

Note: Anticipatory bail cannot be rejected on the ground that the petition filed by the accused under section 482 praying for
quashing of FIR has laready been rejected.
(f) Anticiipatory Bail with Conditions:
The High Court or the Court of Session, while granting 'anticipatory bail' may impose conditions as mentioned in section
438(2) of the Code. The conditions mentioned in this provision are only illustrative and the court may impose other
conditions as well, if it thinks fit, with a view to strike a balance between the individual's right to personal liberty and the
interest of law enforcement authorities and public at large.

For instance, the court may direct that the applicant shold surrender himself to the police for a brief period if a discovery is
to be made under section 27 of the Evidence Act, 1872 or that he should be deemed to have surrendered himself if such a
discovery is to be made.

(g) No 'Blanket Order' of Anticipatory Bail:

If a direction is issued under section 438(1) to the effect that the applicant shall be released on bail 'whenever arrested
for whichever offence whatsoever', such a direction would amount to a 'blanket-order' of 'anticipatory bail', an order
which serves as a 'blanket' to cover or protect any and every kind of allegedly unlawful activity, in fact any eventuality,
likely or unlikely regarding which no concrete information can possibly be had.

Therefore such a 'blanket order' of 'anticipatory bail' is not contemplated by section 438 as the section requires that the
applicant must have reasonable grounds to believe that he might be arrested for having committed a non-bailable
offence. Also such a 'blanket-order' would cause serious interference with both the right and duty of the police in the
matter of investigation.
Hence, the court which grants 'anticipatory bail' must take care to specify the offence or offences in respect of which alone
the order will be effectieve.
(h) Interim Order and Notice to the Public Prosecutor:
Section 438 does not require that a notice to be given to the Public Prosecutor before the application for 'anticipatory
bail' is considered by the court and legally it is possible to pass an 'interim order' order (i.e. ex parte order) of
'anticipatory bail'.

Such interim order must conform to the requirements of section 438 and suitable conditions be imposed on the applicant
keeping in mind facts and circumstances of the case.

Where the Court grants an interim order under sub-Section (1), it shall forthwith cause a notice being not less than 7 days
notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police,
with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally
heard by the Court. [Section 438(1A)]

(i) No Anticipatory Bail after Arrest:

Section 438 cannot be invoked after the arrest of the accused person. The grant of 'anticipatory bail' to an accused who is
under arrest involves contradiction in terms, insofar as the offence or offences for which he is arrested are concerned.

After arrest, the accused must seek his remedy under section 437 or section 439 if he wants to be released on bail in
respect of the offence or offences for which he is arrested.
(j) Anticipatory Bail to be Effective till the Conclusion of Trial:
There is nothing in section 438 to suggest that the order of 'anticipatory bail' shall be effective upto a particular stage or
till the filing of charge-sheet.

As soon as a person is enlarged on bail on the directions of 'anticipatory bail' order it would be deemed by implication as
if the bail was granted under section 437(1). Consequently, the bail shall be effective till the conclusion of the trial, unless
it is cancelled by the court under section 437(5) or section 439(2) of the Code on the grounds known to law.

In this context a Five Judge Bench of the Supreme Court in Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1,
answered the following two questions:

Question 1: Whether the protection granted to a person under under section 438 of CrPC should be limited to a fixed period
so as to enable the person to surrender before the trial court and seek regular bail?
Ans: The protection granted to a person under section 438 CrPC should not invariably be limited to a fixed period; it should
enure in favour of the accused without any restriction on time. Normal conditions under section 437(3) read with section
438(2) should be imposed; if there are specific facts or features in regard to any offence it is open for the court to impose any
condition in the nature of fixed nature of relief, or its being tied to an event etc.

Question 2: Whether the life of an anticipatory bail should end at the time and the stage when the accused is summoned by
the court?
Ans: The life and duration of an anticipatory bail order does not end normally at the time and the stage when the accused is
summoned by the court, or when charges are framed, but can continue till the end of trial.
Howeve, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open
for it to do so.
(k) Cancellation of Anticipatory Bail:
Neither section 438 nor any other section in CrPC makes any clear provision as to whether the order granting anticipatory
bail can be cancelled.

However, when section 438 permits the making of an order and the order is made for granting anticipatory bail, it is
implicit that the court making such an order is entitled upon appropriate considerations to cancel the bail order.

(l) Anticipatory Bail in the Absence of Section 438:

In Hema Mishra v. State of U.P., (2014) 4 SCC 453, it was held by the Supreme Court that in case of inapplicability of section
438 CrPC in a particular State, the accused can appraoch the High Court under Article 226 of the Constitution for grant of
releif of anticipatory bail. However, High Court has to exercise its powers sparingly an grant relief of anticipatory bail only in
appropriate cases.
A Five Judge Bench of the Supreme Court in Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, elaborated that the
following points need to be kept in mind by courts, while dealing with application for anticipatory bail under section 438 of
CrPC:

(i) Consistent with the judgment of the Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, when a
person complains of apprehension of arrest and approaches for order, the application should be based on concrete facts (and
not vague or general allegations), relatable to one or other specific offence. The application seeking anticipatory bail should
contain bare essential facts relating to the offence, and why the applicant reasonably apprehends arrest as well as his side of
the story. These are essential for the court which should consider his application to evaluate the threat or apprehension, its
gravity or seriousness or the appropriateness of any condition that may have to be imposed. It is not essential that an
application should be moved only after an FIR is filed; in can be moved earlier, so long as the facts are clear and there is
reasonable basis for apprehending arrest.

(ii) It may be advisable for the court which is approached with an application under section 438, depending on the seriousness
of the threat (of arrest), to issue notice to the Public Prosecutor and obtain facts, even while granting limited interim
anticipatory bail.

(iii) Nothing in section 438 CrPC compels or obliges courts to impose conditions limiting reliefs in terms of time, or upon filing
of FIR, or recording of statements of any witness, by the police, during investigation or inquiry, etc. While considering an
application (for grant of anticipatory bail), the court has to consider the nature of the offence, the role of the person, the
liklihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), liklihood
of fleeing justice (such as leaving the country), etc. The courts would be justified and ought to impose conditions spelt out in
section 437(3) [by virtue of section 438(2)]
The need to impose other restrictive conditions would have to be judged on a case by case basis, and depending upon the
materials produced by the state and other investigating agency. Such special or other restrictive conditions may be imposed if
the case or cases warrant, but should not be imposed in a routine manner in all cases. Likewise, conditions which limit the
grant of anticipatory bail may be granted, if they are required in the facts of any case or cases, however such limiting
conditions may not be invariably imposed.

(iv) Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed
to the applicant, and the facts of the case, while considering whether to grant anticipatory bail or refuse it. Whether to grant
or not is a matter of discretion; equally whether and if so, what kind of special conditions are to be imposed (or not to be
imposed) are dependent on the facts of the case, and subject to the discretion of the court.

(v) Anticipatory bail granted can, depending on the conduct and behaviour of the accused, continue after filing of the
charge-sheet till the end of trial.

(vi) An order of anticipatory bail should not be 'blanket' in the sense that it should not enable the accusedto commit further
offences and claim relief of indefinite protection from arrest. It should be confined to the offence or incident, for which
apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect of a future incident that
involves commission of an offence.

(vii) An order of anticipatory bail does not in any manner limit or restrict the rights or duties of the police or investigating
agency to investigate into the charges against the person who seeks and is granted pre-arrest bail.
(viii) The observation in Sibbia case regarding 'limited custody' or 'demand custody' to facilitate the requirements of the
investigating agency would be sufficient for the purpose of fulfilling the provisions of section 27, in the event of recovery of
an article, or discovery of a fact, which is relatable to a statement made during such event (i.e. deemed custody). In such
event, there is no question (or necessity) of asking the accused to separately surrender and seek regular bail. Supreme Court
in Sibbia case had observed that. “if and when the occasion arises, it may be possible for the prosecution to claim the benefit
of section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person
released on bail by invoking the principle stated by this Court in State of U.P. v. Deoman Upadhyay, AIR 1960 SC 1125.

(ix) It is open to the police or the investigating agency to move the court concerned, which grant anticipatory bail for a
direction under section 439(2) of CrPC to arrest the accused, in the event of violation of any term, such as absconding,
non-cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of
the investigation or trial.

(x) The court referred to in para (9) above is the court which grants anticipatory bail, in the first instance, according to
prevailing authorities.
(xi) The correctness of an order granting bail can be considered by the appellate or superior court at the behest of the State
or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial
circumstances. This does not amount to 'cancellation' in terms of section 439(2) of CrPC.

(xii) The observation in Siddharam S. Mhetre v. State of Maharashtra, (2011) 1 SCC 694; that no restrictive conditions at all
can be imposed while granting anticipatory bail are hereby overruled. Likewise the decision in S.A. Shaikh v State of
Maharashtra, (1996) 1 SCC 667, and other subseuent similar decisions which lay down such restrictive conditions or terms
limiting the grant of anticipatory bail to a period of time are hereby overruled.
 8. Powers of Appelate Court to Grant Bail
(a) In Case of Appeal against Conviction: Section 389(1) of the Code provides:
(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that
the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released
on bail, or on his own bond.

First Proviso: The Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an
offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give
opportunity to the Public Prosecutor for showing cause in writing against such release;
Second Proviso: In cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an
application for the cancellation of the bail.

(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an
appeal by convicted person to a Court subordinate thereto.

Comment: The analysis of the above rule shows that the appellate court can exercise the power to grant bail only if:
(i) the person asking for release on bail is a convicted person;
(ii) he is in confinement;
(iii) his appeal against the conviction is pending.

Irrespective of whether the offence is baiable or non-bailable the release of the convicted person on bail is entirely at the
discretion of the appellate court, which is to be exercised judicially and the appellate court is required to record reasons
for granting bail.
Release on Bail after Conviction but before Filing of Appeal: [Section 389(3)]
Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall;
where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or
where the offence of which such person has been convicted is a bailable one, and he is on bail,

order that the convicted person be released on bail unless there are special reasons for refusing bail, for such period as will
afford sufficient time to present the appeal and obtain the orders of the Appellate Court under Sub-Section (1), and the
sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.
(b) In Case of an Appeal against Acquittal:

When an appeal against acquittal is presented under section 378, the High Court may issue a warrant directing that the
accused be arrested and brought before it or any subordinate court, and the court before which he is brought may commit
im to prison pending the disposal of the appeal or admit him to bail.

The Supreme Court while granting special leave to appeal against an order of acquittal on a serious offence, has by virtue
of Article 142, to exercise the same powers which the High Court has under section 390.

9. Powers of the Courts of Revision to Grant Bail

As in case of appeal, the court exercising revisional jurisdiction has full discretion in the matter of bail. Such discretion is to
be used judicially having regard to all the facts and circumstances of the case.
Note: Any court making a reference to the High Court as provided under section 395(1) or section 395(2), may pending the
decision of the High Court thereon, either commit the accused to jail or release him on bail to appear when called upon.
[Section 395(3)]
 FORM No. 45 (Second Schedule of CrPC, 1973)
BOND AND BAIL-BOND FOR ATTENDANCE BEFORE OFFICER IN CHARGE OF POLICE STATION OR COURT
See sections 436, 436A, 437, 437A, 438 (3) and 441

I, ____________(name), of ________________(place of residence), having been arrested or detained without warrant by the
Officer in charge of police station (or having been brought before the Court of ), charged with the offence of, and required to
give security for my attendance before such Officer of Court on condition that I shall attend such Officer or Court on every
day on which any investigation or trial is held with regard to such charge, and in case of my making default herein, I bind
myself to forfeit to Government the sum of rupees ________________.

Dated, this _____________________ day of , ________________20__ .

(Signature)

I hereby declare myself (or we jointly and severally declare ourselves and each of us) surety (or sureties) for the above said
(name) that he shall attend the Officer in charge of police station or the Court of on every day on which any investigation into
the charge is made or any trial on such charge is held, that he shall be, and appear, before such Officer or Court for the
purpose of such investigation or to answer the charge against him (as the case may be), and, in case of his making default
herein, I hereby bind myself (or we, hereby bind ourselves) to forfeit to Government the sum of rupees ___________.

Dated, this ________________day of ,___________20___.

(Signature)
 State v. Captain Jagjit Singh
(1962) 3 SCR 622

K N. WANCHOO, J.:

Facts of the Case:

The respondent Jagjit Singh along with two others was prosecuted for conspiracy and also under
Sections 3 and 5 of the Indian Official Secrets Act, (19 of 1923,) (hereinafter called the Act). The
respondent is a former captain of the Indian Army and was at the time of his arrest in December, 1960,
employed in the delegation in India of a French company. The other two persons were employed in
the Ministry of Defence and the Army Headquarters, New Delhi. The case against the three persons
was that they in conspiracy had passed on official secrets to a foreign agency.

The respondent applied for bail to the Sessions Judge; but his application was rejected by the Additional
Sessions Judge, Delhi.

Thereupon the respondent applied under Section 498 of the Code of Criminal Procedure (Old CrPC) to the
High Court, and the main contention urged before the High Court was that on the facts disclosed the case
against the respondent could only be under Section 5 of the Act, which is bailable and not under Section 3
which is non bailable.

Decision of High Court: The High Court was of the view that it was hardly possible at that stage to go
into the question whether Section 3 or Section 5 applied; but that there was substance in the
suggestion on behalf of the respondent that the matter was arguable. Consequently the High Court
took the view that as the other two persons prosecuted along with the respondent had been released
on bail, the respondent should also be so released, particularly as it appeared that the trial was
likely to take a considerable time and the respondent was not likely to abscond. The High Court,
therefore, allowed bail to the respondent.

Thereupon the State made an application for special leave which was granted.

The bail granted to the respondent was cancelled by an interim order by this Court, and the matter has
now come up before us for final disposal.

Decision of Supreme Court:

There is in our opinion a basic error in the order of the High Court. Whenever an application for bail is
made to a court, the first question that it has to decide is:

whether the offence for which the accused is being prosecuted is bailable or otherwise.

If the offence is bailable, bail will be granted under Section 436 of the Code of Criminal Procedure; but if
the offence is not bailable, further considerations will arise and the court will decide the question of grant
of bail in the light of those further considerations.

The error in the order of the High Court is: that it did not consider whether the offence for which the
respondent was being prosecuted was a bailable one or otherwise.
Even if the High Court thought that it would not be proper at that stage, where commitment proceedings
were to take place, to express an opinion on the question whether the offence in this case fell under Section
5 which is bailable or under Section 3 which is not bailable, it should have proceeded to deal with the
application on the assumption that the offence was under Section 3 and therefore not bailable.
The High Court, however, did not deal with the application for bail on this footing, for in the order it is
said that the question whether the offence fell under Section 3 or Section 5 was arguable. It follows
from this observation that the High Court thought it possible that the offence might fall under Section
5. This, in our opinion, was the basic error into which the High Court fell in dealing with the application
for bail before it, and it should have considered the matter even if it did not consider it proper at that
stage to decide the question whether the offence was under Section 3 or Section 5, on the assumption
that the case fell under Section 3 of the Act. It should then have taken into account the various
considerations, such as, nature and seriousness of the offence, the character of the evidence,
circumstances which are peculiar to the accused, a reasonable possibility of the presence of the
accused not being secured at the trial, reasonable apprehension of witnesses being tampered with the
larger interests of the public or the State, and similar other considerations, which arise when a court is
asked for bail in a non-bailable offence.

It is true that under Section 498 of the Code of Criminal Procedure, the powers of the High Court in the
matter of granting bail are very wide; even so where the offence is non-bailable, various considerations
such as those indicated above have to be taken into account before bail is granted in a non-bailable
offence. This, the High Court does not seem to have done, for it proceeded as if the offence for which
the respondent was being prosecuted might be a bailable one.

The only reasons which the High Court gave for granting bail in this case were:
that the other two persons had been granted bail,
that there was no likelihood of the respondent absconding, he being well-connected, and
that the trial was likely to take considerable time.

These are however not the only considerations which should have weighed with the High Court if it had
considered the matter as relating to a non-bailable offence under Section 3 of the Act.

The first question therefore that we have to decide in considering whether the High Court’s order should
be set aside is:
whether this is a case which falls prima facie under Section 3 of the Act.
It is, however, unnecessary now in view of what has transpired since the High Court’s order to decide that
question. It appears that the respondent has been committed to the Court of Session along with the other
two persons under Section 120-B of the Indian Penal Code and under Sections 3 and 5 of the Act read
with Section 120-B. Prima facie therefore, a case has been found against the respondent under Section 3,
which is a non-bailable offence.

It is in this background that we have now to consider: whether the order of the High Court should be set
aside.[Main issue before the Court]

Court’s decision on this issue:

Among other considerations, which a court has to take into account in deciding whether bail should be
granted in a non-bailable offence, is the nature of the offence; and
if the offence is of a kind in which bail should not be granted considering its seriousness, the court
should refuse bail even though it has very wide powers under Section 498 of the Code of Criminal
Procedure.
Now Section 3 of the Act enacts an offence which is prejudicial to the safety or interests of the State
and relates to obtaining, collecting, recording or publishing or communicating to any other person any
secret official code or password or any sketch, plan, model, article or note or other document or
information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an
enemy.
Obviously, the offence is of a very serious kind affecting the safety or the interests of the State.

Further where the offence is committed in relation to any work of defence, arsenal, naval, military or
air force establishment, or station, mine, minefield, factory, dockyard, camp, ship or aircraft or
otherwise in relation to the naval, military or air force affairs of Government or in relation to any secret
official code, it is punishable with fourteen years imprisonment.

The case against the respondent is in relation to the military affairs of the Government, and prima
facie, therefore, the respondent if convicted would be liable upto fourteen years’ imprisonment.

In these circumstances considering the nature of the offence, it seems to us that this is not a case where
discretion, which undoubtedly vests in the court, under Section 498 of the Code of Criminal Procedure,
should have been exercised in favour of the respondent. We advisedly say no more as the case has still to be
tried.

It is true that two of the persons who were prosecuted along with the respondent were released on bail
prior to the commitment order; but the case of the respondent is obviously distinguishable from their
case in as much as the prosecution case is that it is the respondent who is in touch with the foreign
agency and not the other two persons prosecuted along with him. The fact that the respondent may
not abscond is not by itself sufficient to induce the court to grant him bail in a case of this nature.

Further, as the respondent has been committed for trial to the Court of Session, it is not likely now that
the trial will take a long time. In the circumstances we are of opinion that the order of the High Court
granting bail to the respondent is erroneous and should be set aside.

We therefore allow the appeal and set aside the order of the High Court granting bail to the respondent.
As he has already been arrested under the interim order passed by this Court, no further order in this
connection is necessary. We, however, direct that the Sessions Judge will take steps to see that as far as
possible the trial of the respondent starts within two months of the date of this order.
 Moti Ram v. State of M.P.
(1978) 4 SCC 47

V.R. KRISHNA IYER, J. :

Narration of Facts in Justice Iyer’s Unique and Impeccable Style:

 “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in
the streets, and to steal bread,” lampooned Anatole France. The reality of this caricature of equal
justice under the law, whereby the poor are priced out of their liberty in the justice market, is the
grievance of the petitioner. His criminal appeal pends in this Court and he has obtained an order for
bail in his favour “to the satisfaction of the Chief Judicial Magistrate”. The direction of this Court did
not spell out the details of the bail, and so, the magistrate ordered that a surety in a sum of Rs
10,000 be produced which, in actual impact, was a double denial of the bail benefit. For one thing the
miserable mason, the petitioner before us, could not afford to procure that huge sum or manage a
surety of sufficient prosperity. Affluents do not befriend indigents. For another, the magistrate made
an odd order refusing to accept the surety ship of the petitioner’s brother because he and his assets
were in another district.

 If mason and millionaire were treated alike, egregious illegality is an inevitability. Likewise,
geographic allergy at the judicial level makes mockery of equal protection of the laws within the
territory of India. India is one and not a conglomeration of districts, untouchably apart.

 When this Court’s order for release was thus frustrated by magisterial intransigence the prisoner
moved this Court again to modify the original order “to the extent that petitioner be released on
furnishing surety to the tune of Rs 2,000 or on executing a personal bond or pass any other order or
direction as this Hon’ble Court may deem fit and proper”.

From this factual matrix three legal issues arise:

(1) Can the Court, under the Code of Criminal Procedure, enlarge, on his own bond without sureties, a
person undergoing incarceration for a non-bailable offence either as undertrial or as convict who has
appealed or sought special leave?

(2) If the Court decides to grant bail with sureties, what criteria should guide it in quantifying the amount of
bail, and

(3) Is it within the power of the Court to reject a surety because he or his estate is situate in a different
district or State?

Situating Liberty in Bail Jurisprudence once again in Iyer’s Style:

 This formulation turns the focus on an aspect of liberty bearing on bail jurisprudence. The victims,
when suretyship is insisted on or heavy sums are demanded by way of bail or local bailors alone are
persona grata, may well lie the weaker segments of society like the proletariat, the linguistic and other
minorities and distant denizens from the far corners of our country with its vast diversity. In fact the
grant of bail can be stultified or made impossibly inconvenient and expensive if the Court is powerless
to dispense with surety or to receive an Indian bailor across the district borders as good or the sum is so
excessive that to procure a wealthy surety may be both exasperating and expensive.

 The problem is plainly one of human rights, especially freedom vis-a-vis the lowly. This poignant
import of the problem persuaded the Chamber Judge - to invite the Supreme Court Bar Association
and the Citizens for Democracy to assist the Court in decoding the Code and its provisions regarding
 bail. The Kerala State Bar Federation was permitted to intervene and counsel for the parties also made
submissions. We record our appreciation of the amicus curiae for their services and proceed to discuss
the triple issues formulated above.

There is already a direction for grant of bail by this Court in favour of the petitioner and so the merits of
that matter do not have to be examined now.

 It is a sombre reflection that many little Indians are forced into long cellular servitude for little
offences because trials never conclude and bailors are beyond their meagre means. The new
awareness about human rights imparts to what might appear to be a small concern relating to small
men a deeper meaning. That is why we have decided to examine the question from a wider
perspective bearing in mind prisoner’s rights in an international setting and informing ourselves of the
historical origins and contemporary trends in this branch of law. Social Justice is the signature tune of
our Constitution and the little man in peril of losing his liberty is the consumer of social justice.

There is no definition of bail in the Code although offences are classified as bailable and non-bailable. The
actual sections which deal with bail, as we will presently show, are of blurred semantics. We have to
interdict judicial arbitrariness deprivatory of liberty and ensure “fair procedure” which has a creative
connotation after Maneka Gandhi [(1978) 1 SCC 248].

Speaking generally, we agree with the annotation of the expression ‘bail’ given in the American
Jurisprudence (2nd Edn. Vol. 8, Article 2, p. 783): The term ‘bail bond’ and ‘recognizance’ are used
interchangeably in many bail statutes, and quite generally without distinction by the courts, and are given
a practically identical effect.

According to the American Jurisprudence Article 6, p. 785, there is power in the court to release the
defendant without bail or on his own recognizance.

Likewise, the definition of bail as given in Webster’s Third Year International Dictionary: “The process by
which a person is released from custody”.

The concept of bail has a long history briefly set out in the publication on ‘Programme in Criminal Justice
Reform’:

 The concept of bail has a long history and deep roots in English and American law. In medieval
England, the custom grew out of the need to free untried prisoners from disease-ridden jails while
they were waiting for the delayed trials conducted by travelling justices. Prisoners were bailed, or
delivered, to reputable third parties of their own choosing who accepted responsibility for assuring
their appearance at trial. If the accused did not appear, his bailor would stand trial in his place.

 Eventually it became the practice for property owners who accepted responsibility for accused persons
to forfeit money when their charges failed to appear for trial. From this grew the modern practice of
posting a money bond through a commercial bondsman who receives a cash premium for his service,
and usually demands some collateral as well. In the event of non-appearance the bond is forfeited,
after a grace period of a number of days during which the bondsman may produce the accused in
court.

 It sounds like a culture of bonded labour, and yet are we to cling to it. Of course, in the United States,
since then, the bondsman emerged as a commercial adjunct to the processes of criminal justice,
which, in turn, bred abuses and led to reform movements like the Manhattan Bail Project. This
research project spurred the National Bail Conference, held in 1964, which in its crucial chain reaction
provided the major impetus to a reform of bail law across the United States. The seminal statutory
 outcome of this trend was the enactment of the Bail Reform Act of 1966 signed into law by President
Lyndon B. Johnson. It is noteworthy that Chief Justice Earl Warren, Attorney General Robert Kennedy
and other legal luminaries shared the view that bail reform was necessary. Indeed, this legislative
scenario has a lesson for India where a much later Criminal Procedure Code, 1973 has largely left
untouched ancient provisions on this subject, incongruous with the Preamble to the Constitution.

 Hopefully, one wishes that socio-legal research projects in India were started to examine our current
bail system. Are researchers and jurists speechless on such issues because pundits regard these small
men's causes not worthwhile? Is the art of academic monitoring of legislative performance irrelevant
for India?

 The American Act of 1966 has stipulated, inter alia, that release should be granted in non-capital cases
where there is reasonable assurance the individual will reappear when required; that the Courts
should make use of a variety of release options depending on the circumstances; that information
should be developed about the individual on which intelligent selection of alternatives should be
based.

 The Manhattan Bail Project, conducted by the Vera Foundation [Vera Institute of Justice Ten-year
Report 1961-71, p. 20] and the Institute of Judicial Administration at New York University School of
Law, found that about sixty-five per cent of all felony defendants interviewed could be recommended
for release without bail. Of 2,195 defendants released in this way less than one per cent failed to
appear, when required. In short, risk of financial loss is an insubstantial deterrent to flight for a large
number of defendants whose ties with the community are sufficient to bring them to court.

 It is interesting that American criminological thinking and research had legislative response and the
Bail Reforms Act, 1966 came into being. The then President, Lyndon B. Johnson made certain
observations at the signing ceremony:
“Today, we join to recognize a major development in our system of criminal justice: the reform of the
bail system. This system has endured - archaic, unjust and virtually unexamined - since the Judiciary Act of
1789.
The principal purpose of bail is to ensure that an accused person will return for trial if he is released after
arrest.
How is that purpose met under the present system? The defendant with means can afford to pay bail. He
can afford to buy his freedom. But the poorer defendant cannot pay the price. He languishes in jail weeks,
months and perhaps even years before trial.

He does not stay in jail because he is guilty.

He does not stay in jail because any sentence has been passed.
He does not stay in jail because he is any more likely to flee before trial.
He stays in jail for one reason only—because he is poor. . . .”(emphasis added)

Coming to studies made in India by knowledgeable Committees we find the same connotation of bail as
including release on one’s own bond being treated as implicit in the provisions of the Code of Criminal
Procedure. The Gujarat Committee from which we quote extensively, dealt with this matter in depth:
“The bail system, as we see it administered in the criminal courts today, is extremely unsatisfactory and
needs drastic change. In the first place it is virtually impossible to translate risk of non-appearance by the
accused into precise monetary terms and even its basic premise that risk of financial loss is necessary to
prevent the accused from fleeing is of doubtful validity. There are several considerations which deter an
accused from running away from justice and risk of financial loss is only one of them and that too not a
major one. The experience of enlightened Bail Projects in the United States such as Manhattan Bail Project
and D.C. Bail Project shows that even without monetary bail it has been possible to secure the presence of
the accused at the trial in quite a large number of cases. Moreover, the bail system causes discrimination
against the poor since the poor would not be able to furnish bail on account of their poverty while the
wealthier persons otherwise similarly situate would be able to secure their freedom because they can
afford to furnish bail. This discrimination arises even if the amount of the bail fixed by the Magistrate is
not high, for a large majority of those who are brought before the Courts in criminal cases are so poor
that they would find it difficult to furnish bail even in a small amount.” (emphasis added)

The vice of the system is brought out in the Report:

“The evil of the bail system is that either the poor accused has to fall back on touts and professional sureties
for providing bail or suffer pre-trial detention. Both these consequences are fraught with great hardship to
the poor. In one case the poor accused is fleeced of his moneys by touts and professional sureties and
sometimes has even to incur debts to make payment to them for securing his release; in the other he is
deprived of his liberty without trial and conviction and this leads to grave consequences, namely:
(1) though presumed innocent he is subjected to the psychological and physical deprivations of jail life;
(2) he loses his job, if he has one, and is deprived of an opportunity to work to support himself and his
family with the result that burden of his detention falls heavily on the innocent members of the family,
(3) he is prevented from contributing to the preparation of his defence; and
(4) the public exchequer has to bear the cost of maintaining him in the jail.

The Encyclopaedia Britannica brings out the same point even in more affluent societies:

“Bail, procedure by which a judge or magistrate sets at liberty one who has been arrested or imprisoned,
upon receipt of security to ensure the released prisoner’s later appearance in court for further proceedings.
. . . Failure to consider financial ability has generated much controversy in recent years, for bail
requirements may discriminate against poor people and certain minority groups who are thus deprived of
an equal opportunity to secure their freedom pending trial. Some courts now give special consideration
to indigent accused persons who, because of their community standing and past history, are considered
likely to appear in court.”

A latter Committee with Judges, lawyers, members of Parliament and other legal experts, came to the
same conclusion and proceeded on the assumption that release on bail included release on the
accused’s own bond:

“We think that a liberal policy of conditional release without monetary sureties or financial security and
release on one’s own recognizance with punishment provided for violation will go a long way to reform the
bail system and help the weaker and poorer sections of the community to get equal justice under law.
Conditional release may take the form of entrusting the accused to the care of his relatives or releasing him
on supervision. The court or the authority granting bail may have to use the discretion judiciously. When
the accused is too poor to find sureties, there will be no point in insisting on his furnishing bail with sureties,
as it will only compel him to be in custody with the consequent handicaps in making his defence.”

 We should suggest that the Magistrate must always bear in mind that monetary bail is not a necessary
element of the criminal process and even if risk of monetary loss is a deterrent against fleeing from
justice, it is not the only deterrent and there are other factors which are sufficient deterrents
against flight. The Magistrate must abandon the antiquated concept under which pre-trial release
could be ordered only against monetary Bail. That concept is out-dated and experience has shown that
it has done more harm than good.

 Every other feasible method of pre-trial release should be exhausted before resorting to monetary
bail. The practice which is now being followed in the United States is that the accused should
ordinarily be released on order to appear or on his own recognizance unless it is shown that there is
substantial risk of non-appearance or there are circumstances justifying imposition of conditions on
 release. . . If a Magistrate is satisfied after making an enquiry into the condition and background of the
accused that the accused has his roots in the community and is not likely to abscond, he can safely
release the accused on order to appear or on his own recognizance. . .

Thus, the legal literature, Indian and Anglo-American, on bail jurisprudence lends countenance to the
contention that bail, loosely used, is comprehensive enough to cover release on one’s own bond with or
without sureties.

 We have explained later that the power of the Supreme Court to enlarge a person during the
pendency of a Special Leave Petition or of an appeal is very wide, as Order 21 Rule 27 of the Supreme
Court Rules discloses. In that sense, a consideration of the question as to whether the High Court or
the subordinate courts have powers to enlarge a person on his own bond without sureties may not
strictly arise. Even so, the guidelines which prevail with the Supreme Court when granting suspension
of sentence must, in a broad sense, have relevance to what the Code indicates except where special
circumstances call for a different course. Moreover, the advocates who participated—many of them
did—covered the wider area of release under the Code, whether with or without sureties, and that is
why we consider the relevant provisions of the Code in some detail.

Let us now examine whether there is anything in the provisions of the Code which make this meaning
clearly untenable.

 A semantic smog overlays the provisions of bail in the Code and prisoners’ rights, when cast in
ambiguous language become precarious. Where doubts arise the Gandhian talisman becomes a tool of
interpretation:

“Whenever you are in doubt. . . apply the following test. Recall the face of the poorest and the weakest
man whom you may have seen, and ask yourself, if the step you contemplate is going to be of any use to
him.”
Law, at the service of life, must respond interpretatively to raw realities and make for liberties.

Primarily Chapter XXXIII is the nidus of the law of bail.

 Section 436 of the Code speaks of bail but the proviso makes a contradistinction between ‘bail’ and
‘own bond without sureties’. Even here there is an ambiguity, because even the proviso comes in only
if, as indicated in the substantive part, the accused in a bailable offence ‘is prepared to give bail’.
Here, ‘bail’ suggests‘with or without sureties’. And, ‘bail bond’ in Section 436(2) covers own bond.
 Section 437(2) blandly speaks of bail but speaks of release on bail of persons below 16 years of age,
sick or infirm people and women. It cannot be that a small boy or sinking invalid or pardanashin should
be refused release and suffer stress and distress in prison unless sureties are hauled into a far-off court
with obligation for frequent appearance: ‘Bail’ there suggests release, the accent being on undertaking
to appear when directed, not on the production of sureties. But Section 437(2) distinguishes between
bail and bond without sureties.

 Section 445 suggests, especially when read with the marginal note, that deposit of money will do duty
for bond ‘with or without sureties’.

 Section 441(1) of the Code may appear to be a stumbling block in the way of the liberal interpretation
of bail as covering own bond with and without sureties. Superficially viewed, it uses the words ‘bail’
and ‘own bond’ as antithetical, if the reading is literal. Incisively understood, Section 441(1) provides
for both the bond of the accused and the undertaking of the surety being conditioned in the manner
mentioned in the sub-section. To read ‘bail’ as including only cases of release with sureties will stultify
the sub-section; for then, an accused released on his own bond without bail, i.e. surety, cannot be
conditioned to attend at the appointed place. Section 441(2) uses the word ‘bail’ to include ‘own bond’
 loosely as meaning one or the other or both. Moreover, an accused in judicial custody, actual or
potential, may be released by the court to further the ends of justice and nothing in Section 441(1)
compels a contrary meaning.

 Section 441(2) and (3) use the word ‘bail’ generically because the expression is intended to cover bond
with or without sureties.

The slippery aspect is dispelled when we understand the import of Section 389(1) which reads:
389(1): Pending any appeal by a convicted person the Appellate Court may, for reasons to be recorded by it
in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he
is in confinement, that he be released on bail, or on his own bond.

The court of appeal may release a convict on his own bond without sureties. Surely, it cannot be that an
under-trial is worse off than a convict or that the power of the court to release increases when the guilt is
established. It is not the court’s status but the applicant’s guilt status that is germane. That a guilty man
may claim judicial liberation, pro tempore without sureties while an undertrial cannot is a reductio ad
absurdem.

 Likewise, the Supreme Court’s powers to enlarge a prisoner, as the wide words of Order 21 Rule 27
(Supreme Court Rules) show, contain no limitation based on sureties. Counsel for the State agrees that
this is so, which means that a murderer, concurrently found to be so, may theoretically be released on
his own bond without sureties while a suspect, presumed to be innocent, cannot. Such a strange
anomaly could not be, even though it is true that the Supreme Court exercises wider powers with
greater circumspection.

The truth, perhaps, is that indecisive and imprecise language is unwittingly used, not knowing the
draftsman’s golden rule:

In drafting it is not enough to gain a degree of precision which a person reading in good faith can
understand, but it is necessary to attain if possible to a degree of precision which a person reading in bad
faith cannot misunderstand.

 If sureties are obligatory even for juveniles, females and sickly accused while they can be dispensed
with, after being found guilty, if during trial when the presence to instruct lawyers is more necessary,
an accused must buy release only with sureties while at the appellate level, surety ship is expendable,
there is unreasonable restriction on personal liberty with discrimination writ on the provisions. The
hornet’s nest of Part III need not be provoked if we read ‘bail’ to mean that it popularly does, and
lexically and in American Jurisprudence is stated to mean, viz. a generic expression used to describe
judicial release from custodia juris.
 Bearing in mind the need for liberal interpretation in areas of social justice, individual freedom and
indigents’s rights:
we hold that bail covers both—release on one’s own bond, with or without sureties. When sureties
should be demanded and what sum should be insisted on are dependent on variables.

 Even so, poor men - Indians are, in monetary terms, indigents - young persons, infirm individuals and
women are weak categories and courts should be liberal in releasing them on their own recognizances
- put whatever reasonable conditions you may

 It shocks one’s conscience to ask a mason like the petitioner to furnish sureties for Rs 10,000. The
magistrate must be given the benefit of doubt for not fully appreciating that our Constitution,
enacted by ‘We, the People of India’, is meant for the butcher, the baker and the candlestick maker -
shall we add, the bonded labour and pavement dweller.
To add insult to injury, the magistrate has demanded sureties from his own district! (We assume the
allegation in the petition). What is a Malayalee, Kannadiga, Tamil or Telugu to do if arrested for alleged
misappropriation or theft or criminal trespass in Bastar, Port Blair, Pahalgam or Chandni Chowk? He cannot
have sureties owning properties in these distant places. He may not know any one there and might have
come in a batch or to seek a job or in a morcha. Judicial disruption of Indian unity is surest achieved by such
provincial allergies. What law prescribes surety is from outside or non-regional language applications?
What law prescribes the geographical discrimination implicit in asking for sureties from the court district?
This tendency takes many forms, sometimes, geographic, sometimes linguistic, sometimes legalistic. Article
14 protects all Indians qua Indian, within the territory of India. Article 350 sanctions representation to any
authority, including a court, for redress of grievances in any language used in the Union of India. Equality
before the law implies that even a vakalat or affirmation made in any State language according to the law
in that State must be accepted everywhere in the territory of India save where a valid legislation to the
contrary exists. Otherwise, an adivasi will be unfree in free India, and likewise many other minorities. This
divagation has become necessary to still the judicial beginnings, and to inhibit the process of making
Indians aliens in their own homeland. Swaraj is made of united stuff.

 We mandate the magistrate to release the petitioner on his own bond in a sum of Rs 1,000.

An afterword

35. We leave it to Parliament to consider whether in our socialist republic, with social justice as its
hallmark, monetary superstition, not other relevant considerations like family ties, roots in the community,
membership of stable organisations, should prevail for bail bonds to ensure that the ‘bailee’ does not flee
justice. The best guarantee of presence in court is the reach of the law, not the money tag. A parting
thought. If the indigents are not to be betrayed by the law including bail law, re-writing of many processual
laws is an urgent desideratum; and the judiciary will do well to remember that the geo-legal frontiers of
the Central Codes cannot be disfigured by cartographic dissection in the name of language or province.
 Gurcharan Singh v. State (Delhi Admn)
(1978) 1 SCC 118 : AIR 1978 SC 179

P. K. GOSWAMI, J. -

 These two appeals by Special Leave are directed against the judgment and order of the Delhi High
Court cancelling the orders of bail of each of the appellant s passed by the learned Sessions Judge,
Delhi. They were all arrested in pursuance of the First Information Report lodged by the
Superintendent of Police, CBI on June 10, 1977 in what is now described as the “Sunder Murder Case”.
 The report at that stage did not disclose names of accused persons and referred to the involvement of
“some Delhi Police personnel”. Sunder was said to be a notorious dacoit who was wanted in several
cases of murder and dacoity alleged to have been committed by him in Delhi and elsewhere. It is
stated- that by May, 1976 Sunder became a “security risk for Mr Sanjay Gandhi”. It appears Sunder
was arrested at Jaipur on August 31, 1976 and was in police custody in Delhi between November 2,
1976 and November 26, 1976 under the orders of the Court of the Additional Chief Metropolitan
Magistrate, Shahdara, Delhi.

 It is alleged that the appellants ranging from the Deputy Inspector General of Police and the
Superintendent of Police at the top down to some police constables were a party to a criminal
conspiracy to kill Sunder and caused his death by drowning him in the Yamuna in pursuance of the
conspiracy. According to the prosecution, the alleged murder took place on the night of November 24,
1976.

 The appellants were arrested in connection with the above case between June 10, 1977 and July 12,
1977 and the Magistrate declined to release them on bail. Thereafter, they approached the learned
Sessions Judge under Section 439, Criminal Procedure Code, 1973 (briefly the new Code) and secured
release on bail of the four appellants, namely, Gurcharan Singh (Superintendent of Police), P.S.
Bhinder (D.I.G. of Police), Amarjit Singh (Inspector) and Constable Paras Ram on August 1, 1977 and
of the eight other police personnel on August 11, 1977.

On August 9, 1977: Charge-sheet was submitted against 13 accused including all the appellants under
Section 120B read with Section 302, IPC and under other sections. The thirteenth accused who was also a
policeman has been evading arrest.

 The Delhi Administration moved the High Court under Section 439(2), Cr. P.C. against the orders of the
learned Sessions Judge for cancellation of the bail.

On September 19, 1977: The High Court set aside the orders of the Sessions Judge dated August 1, 1977
and August 11, 1977 and the bail bonds furnished by the appellants were cancelled and they were ordered
to be taken into custody forthwith. Hence these appeals by Special Leave which were argued together and
will be disposed of by this judgment.

In order to appreciate the submissions, on behalf of the appellants, of Mr Mulla followed by Mr

Mukherjee it will be appropriate to briefly advert to certain relevant facts.

 On the allegations, this is principally a case of criminal conspiracy to murder a person in police custody
be he a bandit. The police personnel from the Deputy Inspector General of Police to police constables
are said to be involved as accused.

 Before the FIR was lodged on June 10, 1977, there had been a preliminary inquiry conducted by the
CBI between April 6, 1977 and June 9, 1977 bearing upon the death of Sunder. Fifty-three witnesses
 were examined in that inquiry and six of them were said to be eye-witnesses. These eye-witnesses
were all police personnel. During this preliminary inquiry, all the six alleged eye-witnesses did not
support the prosecution case, but gave statements in favour of the accused. However, as stated
earlier, the FIR was lodged on June 10, 1977 and investigation proceeded in which statements of
witnesses were recorded under Section 161, Cr.P.C The appellants were also arrested and suspended
during the period between June 10, 1977 and July 12, 1977.
 During the course of the investigation, seven witnesses including six persons already examined during
the preliminary inquiry, gave statements implicating the appellants in support of the theory of
prosecution. The witnesses were also forwarded to the Magistrate for recording their statements
under Section 164, Cr.P.C All the seven witnesses, it is stated, continued to support the prosecution
case to their statements on oath recorded under Section 164, Cr.P.C Six eye-witnesses who made such
discrepant statements and had supported the defence version at one stage, explained that some of
the accused, namely, D.S.P. R. K. Sharma and Inspector Harkesh had exercised pressure on them to
make such statements in favour of the defence. The seventh eye-witness A.S.I. Gopal Das, who had not
been examined earlier, made statements under Section 164, Cr.P.C. in favour of the prosecution.

It is in the above background that the Delhi Administration moved the High Court for cancellation of the
bail granted by the Sessions Judge alleging that there was grave apprehension of the witnesses being
tampered with by the accused persons on account of their position and influence which they wielded over
the witnesses. The learned Sessions Judge adverting to this aspect had, while granting bail, observed as
follows:

The argument of the learned Public Prosecutor that if released on bail, the petitioner will misuse their
freedom to tamper with the witnesses is not quite convincing. After all, there is little to gain by tampering
with the witnesses who have, themselves, already tampered with their evidence by making contradictory
statements in respect of the same transaction.
The learned Sessions Judge ended his long discussion as follows:
To sum up, after reviewing the entire material including the inquest proceedings held by the Sub-
Divisional Magistrate, statements recorded by the CBI during the preliminary enquiry and under Section
161, Cr.P.C. and the statements recorded under Section 164, Cr.P.C and having regard to the inordinate
delay in registering this case and to the circumstances that there is little probability of the petitioners flying
from justice or tampering with the witnesses, and also having regard to the character of evidence, I am
inclined to grant bail to the petitioners.

The High Court, on the other hand, set aside the orders of the Sessions Judge observing as follows:

Considering the nature of the offence, character of the evidence, including the fact that some
of the witnesses during preliminary inquiry did not fully support the prosecution case, the
reasonable apprehension of witnesses being tampered with and all other factors relevant for
consideration, while considering the application for grant or refusal of bail in a non-bailable
offence punishable with death or imprisonment for life, I have no option but to cancel the bail. I
am of the considered view that the learned Sessions Judge did not exercise his judicial discretion on
relevant well-recognised principles and factors which ought to have been considered by him.

Section 437 of the new Code corresponds to Section 497 of the Code of Criminal Procedure, 1898 (briefly
the old Code) and Section 439 of the new Code corresponds to Section 498 of the old Code. Since there is
no direct authority of this Court with regard to Section 439, Cr.P.C of the new Code, Counsel for both
sides drew our attention to various decisions of the High Courts under Section 498, Cr.P.C of the old
Code.

 Mr Mulla drew our particular attention to some change in the language of Section 437(1), Cr.P.C. (new
Code) compared with Section 497(1) of the old Code. Mr Mulla points out that while Section 497(1),
Cr.P.C of the old Code, in terms, refers to an accused being “brought before a Court”, Section 437(1),
Cr.P.C uses the expression “brought before a Court other than the High Court or a Court of Session”.
From this, Mr Mulla submits that limitations with regard to the granting of bail laid down under
Section 497 (1) to the effect that the accused “shall not be so released if there appears reasonable
grounds for believing that he has been guilty of an offence punishable with death or imprisonment
for life” are not in the way of the High Court or the Court of Session in dealing with bail under Section
439 of the new Code.

 It is, however, difficult to appreciate how the change in the language under Section 437(1) affects the
true legal position. Under the new as well as the old Code an accused after being arrested is produced
before the Court of a Magistrate. There is no provision in the Code whereby the accused is for the first
time produced after initial arrest before the Court of Session or before the High Court. Section 437(1),
Cr.P.C, therefore, takes care of the situation arising out of an accused being arrested by the police and
produced before a Magistrate. What has been the rule of production of accused person after arrest by
the police under the old Code has been made explicitly clear in Section 437(1) of the new Code by
excluding the High Court or the Court of Session.

 From the above change of language it is difficult to reach a conclusion that the Sessions Judge or the
High Court need not even bear in mind the guidelines which the Magistrate has necessarily to follow
in considering bail of an accused. It is not possible to hold that the Sessions Judge or the High Court,
certainly enjoying wide powers, will be oblivious of the considerations of the likelihood of the accused
being guilty of an offence punishable with death or imprisonment for life. Since the Sessions Judge or
the High Court will be approached by an accused only after refusal of bail by the Magistrate, it is not
possible to hold that the mandate of the law of bail under Section 437, Cr.P.C for the Magistrate will be
ignored by the High Court or by the Sessions Judge.

 Section 439 of the new Code confers special powers on High Court or Court of Session regarding bail.
This was also the position under Section 498, Cr.P.C of the old Code. That is to say, even if a Magistrate
refuses to grant bail to an accused person, the High Court or the Court of Session may order for grant
of bail in appropriate cases.
 Similarly under Section 439(2) of the new Code, the High Court or the Court of Session may direct any
person who has been released on bail to be arrested and committed to custody. In the old Code,
Section 498(2) was worded in somewhat different language when it said that a High Court or Court of
Session may cause any person who has been admitted to bail under sub-section (1) to be arrested and
may commit him to custody. In other words, under Section 498 (2) of the old Code, a person who had
been admitted to bail by the High Court could be committed to custody only by the High Court.
Similarly, if a person was admitted to bail by a Court of Session, it was only the Court of Session that
could commit him to custody.
 This restriction upon the power of entertainment of an application for committing a person, already
admitted to bail, to custody, is lifted in the new Code under Section 439(2). Under Section 439(2) of
the new Code, a High Court may commit a person released on bail under Chapter XXXIII by any Court
including the Court of Session to custody, if it thinks appropriate to do so. It must, however, be made
clear that a Court of Session cannot cancel a bail which has already been granted by the High Court
unless new circumstances arise during the progress of the trial after an accused person has been
admitted to bail by the High Court.

If, however, a Court of Session had admitted an accused person to bail, the State has two options:
 It may move the Sessions Judge if certain new circumstances have arisen which were not earlier
known to the State and necessarily, therefore, to that Court.
 The State may as well approach the High Court being the superior court under Section 439(2) to
commit the accused to custody.

When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no
new circumstances that have cropped up except those already existed, it is futile for the State to move the
Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This
position follows from the subordinate position of the Court of Session vis-a-vis the High Court.

 There is no provision in the new Code excluding the jurisdiction of the High Court in dealing with an
application under Section 439(2), Cr.P.C to cancel bail after the Sessions Judge had been moved and an
order had been passed by him granting bail. The High Court has undoubtedly jurisdiction to entertain
the application under Section 439(2), Cr.P.C for cancellation of bail notwithstanding that the Sessions
Judge had earlier admitted the appellants to bail. There is, therefore, no force in the submission of Mr
Mukherjee to the contrary.

Chapter XXXIII of the new Code contains provisions in respect of bail.

 Section 436, Cr.P.C, with which this Chapter opens makes an invariable rule for bail in case of bailable
offences subject to the specified exception under sub-section (2) of that section.
 Section 437, Cr.P.C provides as to when bail may be taken in case of non-bailable offences. Sub-
section (1) of Section 437, Cr.P.C makes a dichotomy in dealing with non-bailable offences. The first
category relates to offences punishable with death or imprisonment for life and the rest are all other
non-bailable offences. With regard to the first category. Section 437(1), Cr.P.C imposes a bar to grant
of bail by the Court or the officer incharge of a police station to a person accused of or suspected of
the commission of an offence punishable with death or imprisonment for life, if there appear
reasonable grounds for believing that he has been so guilty. Naturally, therefore, at the stage of
investigation unless there are some materials to justify an officer or the Court to believe that there are
no reasonable grounds for believing that the person accused of or suspected of the commission of
such an offence has been guilty of the same, there is a ban imposed under Section 437(1), Cr.P.C.
against granting of bail. On the other hand, if to either the officer in-charge of the police station or to
the Court there appear to be reasonable grounds to believe that the accused has been guilty of such
an offence there will be no question of the Court or the officer granting bail to him.
 Under sub-section (4) of Section 437, Cr.P.C. an officer or a Court releasing any person on bail under
sub-section (1) or sub-section (2) of that section is required to record in writing his or its reasons for
so doing.

Section 437, Cr.P.C. deals, inter-alia with two stages during the initial period of the investigation of a
non-bailable offence.
 Even the officer in-charge of the police station may, by recording his reasons in writing, release a
person accused of or suspected of the commission of any non-bailable offence provided there are no
reasonable grounds for believing that the accused has committed a non-bailable offence. Quick arrests
by the police may be necessary when there are sufficient materials for the accusation or even for
suspicion.
 When such an accused is produced before the Court, the Court has a discretion to grant bail in all non-
bailable cases except those punishable with death or imprisonment for life if there appear to be
reasons to believe that he has been guilty of such offences.
The Courts over-see the action of the police and exercise judicial discretion in granting bail always bearing
in mind that the liberty of an individual is not unnecessarily and unduly abridged and at the same time the
cause of justice does not suffer. After the Court releases a person on bail under sub-section (1) or sub-
section (2) of Section 437, Cr.P.C it may direct him to be arrested again when it considers necessary so to
do. This will be also in exercise of its judicial discretion on valid grounds.

 There is a similar provision under sub-section (6) of Section 437, Cr. P.C which corresponds to Section
497 (3A) of the old Code. This provision is again intended to speed up trial without unnecessarily
detaining a person as an undertrial prisoner, unless for reasons to be recorded in writing, the
Magistrate otherwise directs. We may also notice in this connection sub-section (7) of Section 437
which provides that if at any time after the conclusion of a trial of any person accused of non-bailable
offence and before the judgment is delivered, the Court is of opinion that there are reasonable
grounds for believing that the accused is not guilty of such an offence, it shall release the accused, if he
is in custody, on the execution of him of a bond without sureties for his appearance to hear the
judgment.
The principle underlying Section 437 is, therefore, towards granting of bail except in cases where there
appear to be reasonable grounds for believing that the accused has been guilty of an offence punishable
with death or imprisonment for life and also when there are other valid reasons to justify the refusal of bail.

Section 437, Cr.P.C is concerned only with the Court of Magistrate. It expressly excludes the High Court
and the Court of Session.

 Section 439(1), Cr.P.C. of the new Code, on the other hand, confers special powers on the High Court
or the Court of Session in respect of bail. Unlike under Section 437(1) there is no ban imposed under
Section 439(1), Cr.P.C against granting of bail by the High Court or the Court of Session to persons
accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to
suppose that the High Court or the Court of Session will be approached by an accused only after he
has failed before the Magistrate and after the investigation has progressed throwing light on the
evidence and circumstances implicating the accused.
 Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering
the question of granting of bail under Section 439(1), Cr.P.C. of the new Code. The over-riding
considerations in granting bail to which we adverted to earlier and which are common both in the case
of Section 437(1) and Section 439(1), Cr.P.C of the new Code are
- the nature and gravity of the circumstances in which the offence is committed;
- the position and the status of the accused with reference to the victim and the witnesses;
- the likelihood, of the accused fleeing from justice;
- of repeating the offence;
- of jeopardising his own life being faced with a grim prospect of possible conviction in the case;
- of tampering with witnesses;
- the history of the case as well as of its investigation and other relevant grounds which, in view of
so many valuable factors, cannot be exhaustively set out.

 The question of cancellation of bail under Section 439(2), Cr.P.C of the new Code is certainly different
from admission to bail under Section 439(1), Cr.P.C The decisions of the various High Courts cited
before us are mainly with regard to the admission to bail by the High Court under Section 498, Cr.P.C
(old). Power of the High Court or of the Sessions Judge to admit persons to bail under Section 498,
Cr.P.C (old) was always held to be wide without any express limitations in law. In considering the
question of bail justice to both sides governs the judicious exercise of the Court’s judicial discretion.

 The only authority cited before us where this Court cancelled bail granted by the High Court is that of
The State v. Captain Jagjit Singh [AIR 1962 SC 253]. The Captain was prosecuted along with others for
conspiracy and also under Sections 3 and 5 of the Indian Official Secrets Act, 1923 for passing on
official secrets to a foreign agency. This Court found a basic error in the order of the High Court in
treating the case as falling under Section 5 of the Official Secrets Act which is a bailable offence when
the High Court ought to have proceeded on the assumption that it was under Section 3 of that Act
 which is a non-bailable offence. It is because of this basic error into which the High Court felt that this
Court interfered with the order of bail granted by the High Court.

In the present case the Sessions Judge having admitted the appellants to bail by recording his reasons
we will have to see whether that order was vitiated by any serious infirmity for which it was right and
proper for the High Court, in the interest of justice, to interfere with his discretion in granting the bail.

Ordinarily the High Court will not exercise its discretion to interfere with an order of bail granted by the
Sessions Judge in favour of an accused.

 We have set out above the material portions of the order of the Sessions Judge from which it is seen
that he did not take into proper account the grave apprehension of the prosecution that there was a
likelihood of the appellants tampering with the prosecution witnesses.

 In the peculiar nature of the case revealed from the allegations and the position of the appellants in
relation to the eyewitnesses it was incumbent upon the Sessions Judge to give proper weight to the
serious apprehension of the prosecution with regard to tampering with, the eyewitnesses, which was
urged before him in resisting the application for bail. The matter would have been different if there was
absolutely no basis for the apprehension of the prosecution with regard to tampering of the witnesses
and the allegation rested only on a bald statement.

 The manner in which the above plea was disposed of by the Sessions Judge was very casual and even
the language in the order is not clear enough to indicate what he meant by observing that “the
witnesses … themselves already tampered with their evidence by making contradictory statements
…” The learned Sessions Judge was not alive to the legal position that there was no substantive
evidence yet recorded against the accused until the eyewitnesses were examined in the trial which was
to proceed unimpeded by any vicious probability. The witnesses stated on oath under Section 164,
Cr.P.C that they had made the earlier statements under pressure by some of the appellants. Where the
truth lies will be determined at the trial.

 The High Court took note of this serious infirmity of approach of the Sessions Judge as also the
unwarranted manner bordering on his prematurely commenting on the merits of the case by observing
that “such deposition cannot escape a taint of unreliability in some measure or other”. The only
question which the Sessions Judge was required to consider at that stage was whether there was prima
facie case made out, as alleged, on the statements of the witnesses and on other materials. There
appeared at least nothing at that stage against the statement of ASI Gopal Das who had made no
earlier contradictory statement. “The taint of unreliability” could not be attached to his statement
even for the reason given by the learned Sessions Judge.

Whether his evidence will ultimately be held to be trustworthy will be an issue at the stage of trial. In
considering the question of bail of an accused in a non-bailable offence punishable with death or
imprisonment for life, it is necessary for the Court to consider whether the evidence discloses a prima facie
case to warrant his detention in jail besides the other relevant factors referred to above. As a link in the
chain of criminal conspiracy the prosecution is also relying on the conduct of some of the appellants in
taking Sunder out of police lockup for making what is called a false discovery.

We may repeat the two paramount considerations, viz. likelihood of the accused fleeing from justice and his
tampering with prosecution evidence relate to ensuring a fair trial of the case in a Court of Justice. It is
essential that due and proper weight should be bestowed on these two factors apart from others. There
cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case
will govern the exercise of judicial discretion in granting or cancelling bail.
In dealing with the question of bail under Section 498 of the old Code under which the High Court in that
case had admitted the accused to bail, this Court in The State v. Captain Jagjit Singh, while setting aside
the order of the High Court granting bail, made certain general observations with regard to the principles
that should govern in granting bail in a non-bailable case as follows:

It (the High Court) should then have taken into account the various considerations, such as
- nature and seriousness of the offence,
- the character of the evidence,
- circumstances which are peculiar to the accused,
- a reasonable possibility of the presence of the accused not being secured at the trial,
- reasonable apprehension of witnesses being tampered with,
- the larger interests of the public or the State, and

similar other considerations, which arise when a Court is asked for bail in a non-bailable offence. It is true
that under Section 498 of the Code of Criminal Procedure, the powers of the High Court in the matter of
granting bail are very wide; even so where the offence is non-bailable, various considerations such as those
indicated above have to be taken into account before bail is granted, in a non-bailable offence.

We are of the opinion that the above observations equally apply to a case under Section 439 of the new
Code and the legal position is not different under the new Code.

We are satisfied that the High Court has correctly appreciated the entire position and the Sessions Judge
did not at the stage the case was before him. We will not, therefore, be justified under Article 136 of the
Constitution in interfering with the discretion exercised by the High Court in cancelling the bail of the
appellants in this case.

Before closing, we should, however, make certain things clear. We find that the case is now before the
committing Magistrate. We are also informed that all documents have been furnished to the accused
under Section 207, Cr.P.C. of the new Code. The Magistrate will, therefore, without loss of further time
pass an appropriate order under Section 209, Cr.P.C The Court of Session will, thereafter, commence trial
at an early date and examine all the eyewitnesses first and such other material witnesses thereafter as may
be produced by the prosecution as early as possible. Trial should proceed de die in diem as far as
practicable at least so far as the eyewitnesses and the above referred to Panch witness are concerned. We
have to make this order as both Mr Mulla and Mr Mukherjee submitted that trial will take a long time as
the witnesses cited in the charge-sheet are more than 200 and it will be a punishment to keep the
appellants in detention pending the trial. We have, therefore, thought it fit to make the above observation
to which the learned Additional Solicitor General had readily and very fairly agreed. After the statements of
the eye-witnesses and the said Panch witness have been recorded, it will be open to the accused to move
the Sessions Judge for admitting them to bail, pending further hearing. The appeals are dismissed with the
above observations. The stay orders stand vacated.
 Sanjay Chandra v. Central Bureau of Investigation
(2012) 1 SCC 40

H. L. DATTU, J.:
Leave granted in all the Special Leave Petitions.
 These appeals are directed against the common Judgment and Order of the learned Single Judge of
the High Court of Delhi, dated 23rd May 2011 in Bail Application No. 508/2011, Bail Application No.
509/2011 & Crl. M.A. 653/2011, Bail Application No. 510/2011, Bail Application No. 511/2011 and Bail
Application No. 512/2011, by which the learned Single Judge refused to grant bail to the accused-
appellants. These cases were argued together and submitted for decision as one case.

The offence alleged against each of the accused, as noticed by the Ld. Special Judge, CBI, New Delhi, who
rejected bail applications of the appellants, vide his order dated 20.4.2011, is extracted for easy
reference :

Sanjay Chandra (A7) in Crl. Appeal No. 2178 of 2011 [arising out of SLP (Crl.) No. 5650 of 2011]:

 The allegations against accused Sanjay Chandra are that he entered into criminal conspiracy with
accused A. Raja, R.K. Chandolia and other accused persons during September 2009 to get UAS licence
(Unified Access Service Licence) for providing telecom services to otherwise an ineligible company to
get UAS licences.
 He, as Managing Director of M/s Unitech Wireless (Tamil Nadu) Limited, was looking after the
business of telecom through 8 group companies of Unitech Limited. The first-come-first- served
procedure of allocation of UAS Licences and spectrum was manipulated by the accused persons in
order to benefit M/s Unitech Group Companies.
 The cutoff date of 25.09.2007 was decided by accused public servants of DoT primarily to allow
consideration of Unitech group applications for UAS licences. The Unitech Group Companies were in
business of realty and even the objects of companies were not changed to ‘telecom’ and registered as
required before applying. The companies were ineligible to get the licences till the grant of UAS
licences.
 The Unitech Group was almost last within the applicants considered for allocation of UAS licences and
as per existing policy of first-come-first-served, no licence could be issued in as many as 10 to 13
circles where sufficient spectrum was not available. The Unitech companies got benefit of spectrum in
as many as 10 circles over the other eligible applicants.
 Accused Sanjay Chandra, in conspiracy with accused public servants, was aware of the whole design of
the allocation of LOIs and on behalf of the Unitech group companies was ready with the drafts of Rs.
1658 crores as early as 10th October, 2007.”

Vinod Goenka (A5) in Crl. Appeal No. 2179 of 2011 [arising out of SLP (Crl) No. 5902 of 2011] :

 The allegations against accused Vinod Goenka are that he was one of the directors of M/s Swan
Telecom (P) Limited in addition to accused Shahid Usman Balwa w.e.f. 01.10.2007 and acquired
majority stake on 18.10.2007 in M/s Swan Telecom (P) Limited (STPL) through DB Infrastructure (P)
Limited.
 Accused Vinod Goenka carried forward the fraudulent applications of STPL dated 02.03.2007
submitted by previous management despite knowing the fact that STPL was ineligible company to get
UAS licences by virtue of clause 8 of UASL guidelines 2005.
 Accused Vinod Goenka was an associate of accused Shahid Usman Balwa to create false documents
including Board Minutes of M/s Giraffe Consultancy (P) Limited fraudulently showing transfer of its
shares by the companies of Reliance ADA Group during February 2007 itself.
 Accused/applicant in conspiracy with accused Shahid Usman Balwa concealed or furnished false
information to DoT regarding shareholding pattern of STPL as on the date of application thereby
 making STPL an eligible company to get licence on the date of application, that is, 02.03.2007.
Accused/applicant was an overall beneficiary with accused Shahid Usman Balwa for getting licence and
spectrum in 13 telecom circles.

 Investigation Has also disclosed pursuant to TRAI recommendations dated 28.08.2007 when M/s
Reliance Communications Ltd. got the GSM spectrum under the Dual Technology policy, accused
Gautam Doshi, Hari Nair and Surendra Pipara transferred the control of M/s Swan Telecom Pvt. Ltd.,
and said structure of holding companies, to accused Shahid Balwa and Vinod Goenka. In this manner
they transferred a company which was otherwise ineligible for grant of UAS license on the date of
application, to the said two accused persons belonging to Dynamix Balwa (DB) group and thereby
facilitated them to cheat the DoT by getting issued UAS Licences despite the ineligibility on the date of
application and till 18.10.2007.

 Investigation has disclosed that accused Shahid Balwa and Vinod Goenka joined M/s Swan Telecom
Pvt. Ltd. and M/s Tiger Traders Pvt. Ltd. as directors on 01.10.2007 and DB group acquired the
majority stake in TTPL/ M/s Swan Telecom Pvt. Ltd. (STPL) on 18.10.2007.
 On 18.10.2007 a fresh equity of 49.90 lakh shares was allotted to M/s DB Infrastructure Pvt. Ltd.
Therefore on 01.10.2007, and thereafter, accused Shahid Balwa and Vinod Goenka were in- charge of,
and were responsible to, the company M/s Swan Telecom Pvt. Ltd. for the conduct of business. As such
on this date, majority shares of the company were held by D.B. Group.”

Gautam Doshi (A9), Surendra Pipara (A10) and Hari Nair (A 11) in Crl. Appeal Nos.2180, 2182 & 2181 of
2011 [arising out of SLP (Crl) Nos. 6190, 6315 & 6288 of 2011] :

 It is further alleged that in January-February, 2007 accused Gautam Doshi, Surendra Pipara and Hari
Nath in furtherance of their common intention to cheat the Department of Telecommunications,
structured/created net worth of M/s Swan Telecom Pvt. Ltd., out of funds arranged from M/s Reliance
Telecom Ltd. or its associates, for applying to DoT for UAS Licences in 13 circles, where M/s Reliance
Telecom Ltd. had no GSM spectrum, in a manner that its associations with M/s Reliance Telecom Ltd.
may not be detected, so that DOT could not reject its application on the basis of clause 8 of the UASL
Guidelines dated 14.12.2005.

 In pursuance of the said common intention of accused persons, they structured the stake-holding of
M/s Swan Telecom Pvt. Ltd. in a manner that only 9.9% equity was held by M/s Reliance Telecom Ltd.
(RTL) and rest 90.1% was shown as held by M/s Tiger Traders Pvt. Ltd. (later known as M/s Tiger
Trustees Pvt. Ltd. – TTPL), although the entire company was held by the Reliance ADA Group of
companies through the funds raised from M/s Reliance Telecom Ltd. etc.

 It was further alleged that M/s Swan Telecom Pvt. Ltd. (STPL) was, at the time of application dated
02.03.2007, an associate of M/s Reliance ADA Group / M/s Reliance Communications Limited / M/s
Reliance Telecom Limited, having existing UAS Licences in all telecom circles. Investigations have also
disclosed that M/s Tiger Traders Pvt. Ltd., which held majority stake (more than 90%) in M/s Swan
Telecom Pvt. Ltd. (STPL), was also an associate company of Reliance ADA Group.

 Both the companies has not business history and were activated solely for the purpose of applying for
UAS Licences in 13 telecom circles, where M/s Reliance Telecom Ltd. did not have GSM spectrum and
M/s Reliance Communications Ltd. had already applied for dual technology spectrum for these circles.
Investigation has disclosed that the day to day affairs of M/s Swan Telecom Pvt. Ltd. and M/s Tiger
Traders Pvt. Ltd. were managed by the said three accused persons either themselves or through other
officers/consultants related to the Reliance ADA group.
 Investigations about the holding structure of M/s Tiger Traders Pvt. Ltd. has revealed that the
aforesaid accused persons also structured two other companies i.e. M/s Zebra Consultancy Private
Limited & M/s Parrot Consultants Private Limited. Till April, 2007, by when M/s Swan Telecom Pvt.
Ltd. applied for telecom licences, 50% shares of M/s Zebra Consultancy Private Limited & M/s Parrot
Consultants Private Limited, were purchased by M/s Tiger Traders Pvt. Ltd. Similarly, 50% of equity
shares of M/s Parrot Consultants Private Limited & M/s Tiger Traders Private Limited were
purchased by M/s Zebra Consultancy Private Limited. Also, 50% of equity shares of M/s Zebra
Consultancy Private Limited and M/s Tiger Traders Private Limited were purchased by M/s Parrot
Consultants Private Limited. These 3 companies were, therefore, cross holding each other in an inter-
locking structure w.e.f. March 2006 till 4th April, 2007.

 It is further alleged that accused Gautam Doshi, Surendra Pipara and Hari Nair instead of withdrawing
the fraudulent applications preferred in the name of M/s Swan Telecom (P) Limited, which was not
eligible at all, allowed the transfer of control of that company to the Dynamix Balwa Group and thus,
enabled perpetuating and (sic.) illegality. It is alleged that TRAI in its recommendations dated
28.08.2007 recommended the use of dual technology by UAS Licencees. Due to this reason M/s
Reliance Communications Limited, holding company of M/s Reliance Telecom Limited, became
eligible to get GSM spectrum in telecom circles for which STPL had applied. Consequently, having
management control of STPL was of no use for the applicant/accused persons and M/s Reliance
Telecom Limited. Moreover, the transfer of management of STPL to DB Group and sale of equity held
by it to M/s Delphi Investments (P) Limited, Mauritius, M/s Reliance Telecom Limited has earned a
profit of around Rs. 10 crores which otherwise was not possible if they had withdrawn the
applications. M/s Reliance Communications Limited also entered into agreement with M/s Swan
Telecom (P) Limited for sharing its telecom infrastructure. It is further alleged that the three accused
persons facilitated the new management of M/s Swan Telecom (P) Limited to get UAS licences on the
basis of applications filed by the former management. It is further alleged that M/s Swan Telecom (P)
Limited on the date of application, that is, 02.03.2007 was an associate company of Reliance ADA
group, that is, M/s Reliance Communications Limited/ M/s Reliance Telecom Limited and therefore,
ineligible for UAS licences.

 Investigation has also disclosed pursuant to TRAI recommendations dated 28.08.2007 when M/s
Reliance Communications Ltd. got the GSM spectrum under the Dual Technology policy, accused
Gautam Doshi, Hari Nair and Surendra Pipara transferred the control of M/s Swan Telecom Pvt. Ltd.,
and said structure of holding companies, to accused Shahid Balwa and Vinod Goenka. In this manner
they transferred a company which was otherwise ineligible for grant of UAS license on the date of
application, to the said two accused persons belonging to Dynamix Balwa (DB) group and thereby
facilitated them to cheat the DoT by getting issued UAS Licences despite the ineligibility on the date of
application and till 18.10.2007.”

The Special Judge, CBI, New Delhi, rejected Bail Applications filed by the appellants by his order dated
20.04.2011.

The appellants moved the High Court by filing applications under Section 439 of the Code of Criminal
Procedure (in short, “Cr. P.C.”). The same came to be rejected by the learned Single Judge by his order
dated 23.05.2011.

Aggrieved by the same, the appellants are before us in these appeals.

Shri. Ram Jethmalani, Shri. Mukul Rohatgi, Shri Soli J. Sorabjee and Shri. Ashok H. Desai, learned senior
counsel appeared for the appellants and Shri. Harin P. Raval, learned Additional Solicitor General, appears
for the respondent-CBI.

Shri. Ram Jethmalani, learned senior counsel appearing for the appellant Sanjay Chandra, would urge
 that the impugned Judgment has not appreciated the basic rule laid down by this Court that grant of
bail is the rule and its denial is the exception.
 that if there is any apprehension of the accused of absconding from trial or tampering with the
witnesses, then it is justified for the Court to deny bail.
 that the accused has cooperated with the investigation throughout and that his behavior has been
exemplary.
 that the appellant was not arrested during the investigation, as there was no threat from him of
tampering with the witnesses.
 that the personal liberty is at a very high pedestal in our Constitutional system, and the same cannot
be meddled with in a causal manner.
 the impugned Judgment stating that the Ld. Judge did not apply his mind, and give adequate reasons
before rejecting bail, as is required by the legal norms set down by this Court.
 that it was only after the appellants appeared in the Court in pursuance of summons issued, they were
made to apply for bail, and, thereafter, denied bail and sent to custody. The learned senior counsel
states that the trial Judge does not have the power to send a person, who he has summoned in
pursuance of Section 87 Cr.P.C to judicial custody. The only power that the trial Judge had, he would
contend, was to ask for a bond as provided for in Section 88 Cr.P.C. to ensure his appearance.
 that when a person appeared in pursuance of a bond, he was a free man, and such a free man cannot
be committed to prison by making him to apply for bail and thereafter, denying him the same.
 that if it was the intention of the Legislature to make a person, who appears in pursuance of summons
to apply for bail, it would have been so legislated in Section 88 Cr.P.C.
 The learned senior counsel assailed the Judgment of the Delhi High Court in the Court on its own
motion v. CBI [2004 I JCC 308] by which the High Court gave directions to Criminal Courts to call upon
the accused who is summoned to appear to apply for bail, and then decide on the merits of the bail
application. The High Court has ignored even the CBI Manual before issuing these directions, which
provided for bail to be granted to the accused, except in the event of there being commission of
heinous crime. The learned senior counsel would also argue that it was an error to have a “rolled up
harge”, as recognized by the Griffiths’ case [R v. Griffiths (1966) 1 Q.B. 589].
 that there is not even a prima facie case against the accused and would make references to the charge
sheet and the statement of several witnesses. He would emphatically submit that none of the
ingredients of the offences charged with were stated in the charge sheet. He would further contend
that even if, there is a prima facie case, the rule is still bail, and not jail, as per the dicta of this Court in
several cases.

Shri. Mukul Rohatgi, learned senior counsel appearing for the appellant Vinod Goenka, while adopting
the arguments of Shri. Jethmalani, would further supplement by arguing

 that the Ld. Trial Judge erred in making the persons, who appeared in pursuance of the summons,
apply for bail and then denying the same, and ordering for remand in judicial custody.
 that the gravity of the offence charged with, is to be determined by the maximum sentence prescribed
by the Statute and not by any other standard or measure. The alleged amount involved in the so-called
Scam is not the determining factor of the gravity of the offence, but the maximum punishment
prescribed for the offence. He would state that the only bar for bail pending trial in Section 437 is for
those persons who are charged with offences punishable with life or death, and there is no such bar
for those persons who were charged with offences with maximum punishment of seven years. Shri.
Rohatgi also cited some case laws.
Shri. Ashok H. Desai, learned senior counsel appearing for the appellants Hari Nair and Surendra Pipara,
adopted the principal arguments of Shri.Jethmalani. In addition, Shri. Desai would submit

 that a citizen of this country, who is charged with a criminal offence, has the right to be enlarged on
bail. Unless there is a clear necessity for deprivation of his liberty, a person should not be remanded to
judicial custody.
 that such custody is not punitive in nature, but preventive, and must be opted only when the charges
are serious.
 that the power of the High Court and this Court is not limited by the operation of Section 437. He
would further contend that Surendra Pipara deserves to be released on bail in view of his serious
health conditions.

Shri. Soli J. Sorabjee, learned senior counsel appearing for Gautam Doshi, adopted the principal
arguments of Shri. Jethmalani. Shri. Sorabjee would assail the finding of the Learned Judge of the High
Court in the impugned Judgment: that the mere fact that the accused were not arrested during the
investigation was proof of their influence in the society, and hence, there was a reasonable apprehension
that they would tamper with the evidence if enlarged on bail.
 that if this reasoning is to be accepted, then bail is to be denied in each and every criminal case that
comes before the Court.
 that the accused had no criminal antecedents.

Contentions of the Respondent State: Shri. Haren P. Raval, the learned Additional Solicitor General, in
his reply, would submit
 that the offences that are being charged, are of the nature that the economic fabric of the country is
brought at stake.
 that the quantum of punishment could not be the only determinative factor for the magnitude of an
offence.
 that one of the relevant considerations for the grant of bail is the interest of the society at large as
opposed to the personal liberty of the accused, and that the Court must not lose sight of the former.
That in the changing circumstances and scenario, it was in the interest of the society for the Court to
decline bail to the appellants.
 that consistency is the norm of this Court and that there was no reason or change in circumstance as
to why this Court should take a different view from the order of 20th June 2011 in Sharad Kumar Etc.
v. Central Bureau of Investigation [in SLP (Crl) No. 4584-4585 of 2011] rejecting bail to some of the co-
accused in the same case.
 that the investigation in these cases is monitored by this Court and the trial is proceeding on a day-to-
day basis and that there is absolutely no delay on behalf of the prosecuting agency in completing the
trial.
 that the appellants, having cooperated with the investigation, is no ground for grant of bail, as they
were expected to cooperate with the investigation as provided by the law.

He would further submit that the test to enlarge an accused on bail is:
 whether there is a reasonable apprehension of tampering with the evidence, and that there is an
apprehension of threat to some of the witnesses.

That there is more reason now for the accused not to be enlarged on bail, as they now have the knowledge
of the identity of the witnesses, who are the employees of the accused, and there is an apprehension that
the witnesses may be tampered with.
 that Section 437 of the Cr.P.C. uses the word “appears”, and, therefore, that the argument of the
learned senior counsel for the appellants that the power of the trial Judge with regard to a person
summoned under Section 87 is controlled by Section 88 is incorrect.
 Shri. Raval also made references to the United Nations Convention on Corruption and the Report on
the Reforms in the Criminal Justice System by Justice Malimath, which, we do not think, is necessary to
go into.
On a query from the Bench, the learned ASG would submit that in his opinion, bail should be denied in all
cases of corruption which pose a threat to the economic fabric of the country, and that the balance should
tilt in favour of the public interest.

In his reply, Shri. Jethmalani would submit:

 That as the presumption of innocence is the privilege of every accused, there is also a presumption that
the appellants would not tamper with the witnesses if they are enlarged on bail, especially in the facts
of the case, where the appellants have cooperated with the investigation.

That there are two principles for the grant of bail:

 firstly, if there is no prima facie case, and
 secondly, even if there is a prima facie case, if there is no reasonable apprehension of tampering with
the witnesses or evidence or absconding from the trial, the accused are entitled to grant of bail
pending trial.
 that since both the conditions are satisfied in this case, the appellants should be granted bail.

Decision of Supreme Court on Arguments advances by the Appellants and Respondent State:

Let us first deal with a minor issue canvassed by Mr. Raval, learned ASG. It is submitted that this Court has
refused to entertain the Special Leave Petition filed by one of the coaccused [Sharad Kumar v. CBI] and,
therefore, there is no reason or change in the circumstance to take a different view in the case of the
appellants who are also chargesheeted for the same offence.

 We are not impressed by this argument. In the aforesaid petition, the petitioner was before this Court
before framing of charges by the Trial Court. Now the charges are framed and the trial has
commenced. We cannot compare the earlier and the present proceedings and conclude that there are
no changed circumstances and reject these petitions.

The appellants are facing trial in respect of the offences under Sections 420-B, 468, 471 and 109 of Indian
Penal Code and Section 13(2) read with 13(i)(d) of Prevention of Corruption Act, 1988. Bail has been
refused first by the Special Judge, CBI, New Delhi and subsequently, by the High Court. Both the courts
have listed the factors, on which they think, are relevant for refusing the Bail applications filed by the
applicants as:
 seriousness of the charge;
 the nature of the evidence in support of the charge;
 the likely sentence to be imposed upon conviction;
 the possibility of interference with witnesses;
 the objection of the prosecuting authorities;
 possibility of absconding from justice.

 In bail applications, generally, it has been laid down from the earliest times that the object of bail is to
secure the appearance of the accused person at his trial by reasonable amount of bail. The object of
bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment,
unless it can be required to ensure that an accused person will stand his trial when called upon. The
courts owe more than verbal respect to the principle that punishment begins after conviction, and that
every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it
was appreciated that detention in custody pending completion of trial could be a cause of great
hardship.
 From time to time, necessity demands that some un-convicted persons should be held in custody
pending trial to secure their attendance at the trial but in such cases, ‘necessity’ is the operative test.
 In this country, it would be quite contrary to the concept of personal liberty enshrined in the
Constitution that any person should be punished in respect of any matter, upon which, he has not been
convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he
will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.
 Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of
the fact that any imprisonment before conviction has a substantial punitive content and it would be
improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused
has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving
him a taste of imprisonment as a lesson.

In the instant case, as we have already noticed:

 that the “pointing finger of accusation” against the appellants is ‘the seriousness of the charge’. The
offences alleged are economic offences which has resulted in loss to the State exchequer. Though, they
contend that there is possibility of the appellants tampering witnesses, they have not placed any
material in support of the allegation.
 In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering
bail applications but that is not the only test or the factor : The other factor that also requires to be
taken note of is the punishment that could be imposed after trial and conviction, both under the Indian
Penal Code and Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be
balancing the Constitutional Rights but rather “recalibration of the scales of justice.”
 The provisions of Cr.P.C. confer discretionary jurisdiction on Criminal Courts to grant bail to accused
pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has to be
exercised with great care and caution by balancing valuable right of liberty of an individual and the
interest of the society in general.

In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in
our opinion, a denial of the whole basis of our system of law and normal rule of bail system. It
transcends respect for the requirement that a man shall be considered innocent until he is found guilty.
If such power is recognized, then it may lead to chaotic situation and would jeopardize the personal
liberty of an individual.

This Court, time and again, has stated that bail is the rule and committal to jail an exception. It is also
observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under
Article 21 of the Constitution. In the case of State of Rajasthan v. Balchand [(1977) 4 SCC 308] this Court
opined:
 The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances
suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the
shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks
enlargement on bail from the Court. We do not intend to be exhaustive but only illustrative.

In the case of Gudikanti Narasimhulu v. Public Prosecutor [(1978) 1 SCC 240] V.R. Krishna Iyer, J., sitting as
Chamber Judge, enunciated the principles of bail thus:

“What, then, is “judicial discretion” in this bail context? In the elegant words of 75 75 Benjamin Cardozo:
“The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a
knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his
inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and
unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy,
disciplined by system, and subordinated to “the primordial necessity of order in the social life”. Wide
enough in all conscience is the field of discretion that remains.”
In Gurcharan Singh v. State [(1978) 1 SCC 118] this Court took the view:

 In other non-bailable cases the Court will exercise its judicial discretion in favour of granting bail
subject to sub- section (3) of Section 437 CrPC if it deems necessary to act under it. Unless exceptional
circumstances are brought to the notice of the Court which may defeat proper investigation and a fair
trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable
with death or imprisonment for life. It is also clear that when an accused is brought before the Court of
a Magistrate with the allegation against him of an offence punishable with death or imprisonment for
life, he has ordinarily no option in the matter but to refuse bail subject, however, to the first proviso to
Section 437(1) CrPC and in a case where the Magistrate entertains a reasonable belief on the materials
that the accused has not been guilty of such an offence. This will, however, be an extraordinary
occasion since there will be some materials at the stage of initial arrest, for the accusation or for
strong suspicion of commission by the person of such an offence.

 Section 439(1) CrPC of the new Code, on the other hand, confers special powers on the High Court or
the Court of Session in respect of bail. Unlike under Section 437(1) there is no ban imposed under
Section 439(1), CrPC against granting of bail by the High Court or the Court of Session to persons
accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to
suppose that the High Court or the Court of Session will be approached by an accused only after he has
failed before the Magistrate and after the investigation has progressed throwing light on the evidence
and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to
exercise its judicial discretion in considering the question of granting of bail under Section 439(1) CrPC
of the new Code. The overriding considerations in granting bail to which we adverted to earlier and
which are common both in the case of Section 437(1) and Section 439(1) CrPC of the new Code are
the nature and gravity of the circumstances in which the offence is committed; the position and the
status of the accused with reference to the victim and the witnesses; the likelihood, of the accused
fleeing from justice; of repeating the offence; of jeopardizing his own life being faced with a grim
prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well
as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be
exhaustively set out.”

In Babu Singh v. State of U.P. [(1978) 1 SCC 579] this Court opined:

 The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And
yet, the issue is one of liberty, justice, public safety and burden on the public treasury, all of which
insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. As
Chamber Judge in this summit Court I had to deal with this uncanalised case-flow, ad hoc response to
the docket being the flickering candle light. So it is desirable that the subject is disposed of on basic
principle, not improvised brevity draped as discretion.
 Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system
recognised under Article 21 that the curial power to negate it is a lively concern for the cost to the
individual and the community. To glamorise impressionistic orders as discretionary may, on occasions,
make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or
convict is fundamental, suffering lawful eclipse only in terms of “procedure established by law”. The
last four words of Article 21 are the life of that human right.

 Considering the likelihood of the applicant Interfering with witnesses for the prosecution orotherwise
polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the
antecedents of a man who is applying for bail to find whether he has a bad record—particularly a
record which suggests that he is likely to commit serious offences while on bail. In regard to habituals,
it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the
 opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of
evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance

 The significance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and
permissible only when the law authorising it is reasonable, evenhanded and geared to the goals of
community good and State necessity spelt out in Article

Indeed, the considerations I have set out as criteria are germane to the constitutional proposition I have
deduced. Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal
of bail is not for punitive purpose but for the bi-focal

We must weigh the contrary factors to answer the test of reasonableness, subject to the need for securing
the presence of the bail applicant. It makes sense to assume that a man on bail has a better chance to
prepare or present his case than one remanded in custody. And if public justice is to be promoted,
mechanical detention should be demoted. In the United States, which has a constitutional perspective
close to ours, the function of bail is limited, “community roots” of the applicant are stressed and, after the
Vera Foundation's Manhattan Bail Project, monetary suretyship disappearance or disturbance can arise, is
not a negligible consideration. Equally important is the deplorable condition, verging on the inhuman, of
our sub-jails, that the unrewarding cruelty and expensive custody of avoidable incarceration makes refusal
of bail unreasonable and a policy favouring release justly sensible.

In Moti Ram v. State of M.P. [(1978) 4 SCC 47] this Court, while discussing pretrial detention, held:

 The consequences of pre-trial detention are grave. Defendants presumed innocent arc subjected to
the psychological and physical deprivations of jail life, usually under more onerous conditions than are
imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented
from contributing to the preparation of his defence. Equally important, the burden of his detention
frequently falls heavily on the innocent members of his family.”

The concept and philosophy of bail was discussed by this Court in Vaman Narain Ghiya v. State of
Rajasthan [(2009) 2 SCC 281] thus:

 “Bail” remains an undefined term in CrPC. Nowhere else has the term been statutorily defined.
Conceptually, it continues to be understood as a right for assertion of freedom against the State
imposing restraints. Since the UN Declaration of Human Rights of 1948, to which India is a signatory,
the concept of bail has found a place within the scope of human rights. The dictionary meaning of the
expression “bail” denotes a security for appearance of a prisoner for his release. Etymologically, the
word is derived from an old French verb “bailer” which means to “give” or “to deliver”, although
another view is that its derivation is from the Latin term “baiulare”, meaning “to bear a burden”. Bail
is a conditional liberty. Stroud's Judicial Dictionary (4th Edn., 1971) spells out certain other details. It
states:
… when a man is taken or arrested for felony, suspicion of felony, indicted of felony, or any such case, so
that he is restrained of his liberty. And, being by law bailable, offereth surety to those which have authority
to bail him, which sureties are bound for him to the King's use in a certain sums of money, or body for body,
that he shall appear before the justices of goal delivery at the next sessions, etc. Then upon the bonds of
these sureties, as is aforesaid, he is bailed—that is to say, set at liberty until the day appointed for his
appearance.” Bail may thus be regarded as a mechanism whereby the State devolutes upon the community
the function of securing the presence of the prisoners, and at the same time involves participation of the
community in administration of justice

Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law. Liberty
of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is
required to be maintained between the personal liberty of the accused and the investigational right of the
police. It must result in minimum interference with the personal liberty of the accused and the right of the
police to investigate the case. It has to dovetail two conflicting demands, namely, on the one hand the
requirements of the society for being shielded from the hazards of being exposed to the misadventures of
a person alleged to have committed a crime; and on the other, the fundamental canon of criminal
jurisprudence viz. the presumption of innocence of an accused till he is found guilty. Liberty exists in
proportion to wholesome restraint, the more restraint on others to keep off from us, the more liberty we
have. (See A.K. Gopalan v. State of Madras)

The law of bail, like any other branch of law, has its own philosophy, and occupies an important place in
the administration of justice and the concept of bail emerges from the conflict between the police power
to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in
favour of the alleged criminal. An accused is not detained in custody with the object of punishing him on
the assumption of his guilt.

 More recently, in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, [(2011) 1 SCC
694] this Court observed that “(j)ust as liberty is precious to an individual, so is the society’s interest in
maintenance of peace, law and order. Both are equally important.” This Court further observed:
“Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes
imperative according to the peculiar facts and circumstances of the case.”

 This Court has taken the view that when there is a delay in the trial, bail should be granted to the
accused [See Babba v. State of Maharashtra [(2005) 11 SCC 569] Vivek Kumar v. State of U.P. [(2000)
9 SCC 443] Mahesh Kumar Bhawsinghka v. State of Delhi, [(2000) 9 SCC 383].

The principles, which the Court must consider while granting or declining bail, have been culled out by this
Court in the case of Prahlad Singh Bhati v. NCT [(2001) 4 SCC 280] thus:
“The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the
circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in
mind
 the nature of accusations,
 the nature of the evidence in support thereof,
 the severity of the punishment which conviction will entail,
 the character, behaviour, means and standing of the accused,
 circumstances which are peculiar to the accused,
 reasonable possibility of securing the presence of the accused at the trial,
 reasonable apprehension of the witnesses being tampered with,
 the larger interests of the public or State and similar other considerations.

It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words
“reasonable grounds for believing” instead of “the evidence” which means the court dealing with the
grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that
the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at
this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.”

In State of U.P. v. Amarmani Tripathi [(2005) 8 SCC 21] this Court held as under:

It is well settled that the matters to be considered in an application for bail are
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the
offence;
(ii) nature and gravity of the charge;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being tampered with; and (
viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT and
Gurcharan Singh v. State].
While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground
to refuse bail, if the accused is of such character that his mere presence at large would intimidate the
witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the
evidence, then bail will be refused.

We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra
Sarkar v. Rajesh Ranjan
“The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its
discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a
detailed examination of evidence and elaborate documentation of the merit of the case need not be
undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being
granted particularly where the accused is charged of having committed a serious offence. Any order devoid
of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to
consider among other circumstances, the following factors also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of
supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan
Singh and Puran v. Rambilas)”

While a detailed examination of the evidence is to be avoided while considering the question of bail, to
ensure that there is no prejudging and no prejudice, a brief examination to be satisfied about the existence
or otherwise of a prima facie case is necessary.”

Coming back to the facts of the present case, both the Courts have refused the request for grant of bail
on two grounds :-
 The primary ground is that offence alleged against the accused persons is very serious involving deep
rooted planning in which, huge financial loss is caused to the State exchequer ;
 the secondary ground is that the possibility of the accused persons tempering with the witnesses.

In the present case, the charge is that of cheating and dishonestly inducing delivery of property, forgery
for the purpose of cheating using as genuine a forged document. The punishment of the offence is
punishment for a term which may extend to seven years.

 It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the
punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in
determining whether to grant bail, both the seriousness of the charge and the severity of the
punishment should be taken into consideration. The grant or refusal to grant bail lies within the
discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and
circumstances of each particular case. But at the same time, right to bail is not to be denied merely
 because of the sentiments of the community against the accused. The primary purposes of bail in a
criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping
him, pending the trial, and at the same time, to keep the accused constructively in the custody of the
Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court
and be in attendance thereon whenever his presence is required.

 This Court in Gurcharan Singh v. State [AIR 1978 SC 179] observed that two paramount
considerations, while considering petition for grant of bail in non-bailable offence, apart from the
seriousness of the offence, are the likelihood of the accused fleeing from justice and his tampering with
the prosecution witnesses. Both of them relate to ensure of the fair trial of the case.
Though, this aspect is dealt by the High Court in its impugned order, in our view, the same is not convincing.

When the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the
Constitution is violated. Every person, detained or arrested, is entitled to speedy trial, the question is :
whether the same is possible in the present case.
 There are seventeen accused persons. Statement of the witnesses runs to several hundred pages and
the documents on which reliance is placed by the prosecution, is voluminous. The trial may take
considerable time and it looks to us that the appellants, who are in jail, have to remain in jail longer
than the period of detention, had they been convicted. It is not in the interest of justice that accused
should be in jail for an indefinite period.
 No doubt, the offence alleged against the appellants is a serious one in terms of alleged huge loss to
the State exchequer, that, by itself, should not deter us from enlarging the appellants on bail when
there is no serious contention of the respondent that the accused, if released on bail, would interfere
with the trial or tamper with evidence.
We do not see any good reason to detain the accused in custody, that too, after the completion of the
investigation and filing of the charge-sheet.

This Court, in the case of State of Kerala v. Raneef [(2011) 1 SCC 784] has stated :-

“In deciding bail applications an important factor which should certainly be taken into consideration by the
court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but
is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the
Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a
case? Of course this is not the only factor, but it is certainly one of the important factors in deciding
whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in
Para 2 of his counter-affidavit), and we see no reason why he should be denied bail. A doctor incarcerated
for a long period may end up like Dr. Manette in Charles Dicken's novel A Tale of Two Cities, who forgot his
profession and even his name in the Bastille.”

In ‘Bihar Fodder Scam’, this Court, taking into consideration the seriousness of the charges alleged and the
maximum sentence of imprisonment that could be imposed including the fact that the appellants were in
jail for a period more than six months as on the date of passing of the order, was of the view that the
further detention of the appellants as pre-trial prisoners would not serve any purpose.

We are conscious of the fact that the accused are charged with economic offences of huge magnitude.
We are also conscious of the fact that the offences alleged, if proved, may jeopardize the economy of
the country. At the same time, we cannot lose sight of the fact that the investigating agency has already
completed investigation and the charge sheet is already filed before the Special Judge, CBI, New Delhi.
Therefore, their presence in the custody may not be necessary for further investigation. We are of the
view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to
ally the apprehension expressed by CBI.
 In the view we have taken, it may not be necessary to refer and discuss other issues canvassed by the
learned counsel for the parties and the case laws relied on in support of their respective contentions.
We clarify that we have not expressed any opinion regarding the other legal issues canvassed by
learned counsel for the parties.

In the result, we order that the appellants be released on bail on their executing a bond with two solvent
sureties, each in a sum of 5 lakhs to the satisfaction of the Special Judge, CBI, New Delhi on the following
conditions :-

a. The appellants shall not directly or indirectly make any inducement, threat or promise to any person
acquainted with the facts or the case so as to dissuade him to disclose such facts to the Court or to any
other authority.
b. They shall remain present before the Court on the dates fixed for hearing of the case. If they want to
remain absent, then they shall take prior permission of the court and in case of unavoidable circumstances
for remaining absent, they shall immediately give intimation to the appropriate court and also to the
Superintendent, CBI and request that they may be permitted to be present through the counsel.

c. They will not dispute their identity as the accused in the case.

d. They shall surrender their passport, if any (if not already surrendered), and in case, they are not a holder
of the same, they shall swear to an affidavit. If they have already surrendered before the Ld. Special Judge,
CBI, that fact should also be supported by an affidavit.

e. We reserve liberty to the CBI to make an appropriate application for modification/ recalling the order
passed by us, if for any reason, the appellants violate any of the conditions imposed by this Court.

31) The appeals are disposed of accordingly.

 Shri Gurbaksh Singh Sibbia v. State of Punjab
(1980) 2 SCC 565 : AIR 1980 SC 1632

Bench: Chandrachud, Y.V. (Cj), Bhagwati, P.N., Untwalia, N.L., Pathak, R.S., Reddy, O. Chinnappa (J)

Author: Y V CHANDRACHUD, C.J.

 These appeals by special leave involve a question of great public importance bearing, at once, on
personal liberty and the investigational powers of the police. The society has a vital stake in both of
these interests, though their relative importance at any given time depends upon the complexion and
restraints of political conditions. Our task in these appeals is how best to balance these interest while
determining the scope of Section 438 of the Code of Criminal Procedure, 1973 (Act 2 of 1974).

Criminal Appeal 335 of 1977: It is the first of the many appeals before us, arises out of a judgement dated
September 13, 1977 of a Full Bench of the High Court of Punjab and Haryana [Gurbaksh Singh Sibbia v.
State of Punjab, (AIR 1978 P & H 1]. The appellant therein, Shri Gurbaksh Singh Sibbia, was a Minister of
Irrigation and Power in the Congress Ministry of the Government of Punjab. Grave allegations of political
corruption were made against him and others whereupon, applications were filed in the High Court of
Punjab and Haryana under Section 438, praying that the appellants be directed to be released on bail, in
the event of their arrest on the aforesaid charges. Considering the importance of the matter, a learned
Single Judge referred the application to a Full Bench, which by its judgment dated September 13, 1977
dismissed them.

The Code of Criminal Procedure, 1898 did not contain any specific provision corresponding to the present
Section 438. Under the old Code, there was a sharp difference of opinion amongst the various High Courts
on the question as to whether courts had the inherent power to pass an order of bail in anticipation of
arrest, the preponderance of view being that it did not have such power. The Law Commission of India, in
its 41st Report dated September 24, 1969 pointed out the necessity of introducing a provision in the Code
enabling the High Court and the Court of Session to grant "anticipatory bail". It observed in paragraph 39.9
of its report (Volume I):

The suggestion for directing the release of a person on bail prior to his arrest (commonly known as "anticipatory
bail") was carefully considered by us. Though there is a conflict of judicial opinion about the power of court to grant
anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The
necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in
false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In
recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from
false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to
abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to
custody, remain in prison for some days and then apply for bail.

We considered carefully the question of laying down in the statute certain conditions under which alone anticipatory
bail could be granted. But we found that it may not be practicable to exhaustively enumerate those conditions; and
moreover, the laying down of such conditions may be construed as prejudging (partially at any rate) the whole case. Hence
we would leave it to the discretion of the court and prefer not to fetter such discretion in the statutory provision itself.
Superior courts will, undoubtedly, exercise their discretion properly, and not make any observations in the order granting
anticipatory bail, which will have a tendency to prejudice the fair trial of the accused.

The suggestion made by the Law Commission was, in principle, accepted by the Central Government which
introduced Clauses 447 in the Draft Bill of the Code of Criminal Procedure, 1970 with a view to conferring
as express power on the High Court and the Court of Session to grant anticipatory bail.
The Law Commission, in paragraph 31 of its 48th Report (1972), made the following comments on the
aforesaid clause:
The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the
recommendation made by the previous Commission. We agree that this would be a useful addition,
though we must add that it is in very exceptional cases that such power should be exercised. We are
further of the view that in order to ensure that the provision is not put to abuse at the instance of
unscrupulous petitioners, the final order should be made only after notice to the Public Prosecutor.
The initial order should only be an interim one. Further, the relevant section should make it clear that the
direction can be issued only for reasons to be recorded, and if the court is satisfied that such a direction is
necessary in the interests of justice. It will also be convenient to provide that notice of the interim order as
well as of the final orders will be given to the Superintendent of Police forthwith.

Clause 447 of the Draft Bill of 1970 was enacted with certain modifications and became Section 438 of the
Code of Criminal Procedure, 1973.

 The facility which Section 438 affords is generally referred to as 'anticipatory bail', an expression
which was used by the Law Commission in the 41st Report. Neither the section nor its marginal note
so describes it but the expression 'anticipatory bail' is a convenient mode of conveying that it is
possible to apply for bail in anticipation of arrest. Any order of bail can, of course, be effective only
from the time of arrest because, to grant bail, as stated in Wharton's Law Lexicon, is to 'set at liberty a
person arrested or imprisoned, on security being taken for his appearance'. Thus, bail is basically
release from restraint, more particularly, release from the custody of the police. The act of the arrest
directly affects freedom of movement of the person arrested by the police, and speaking generally, an
order of bail gives back to the accused that freedom on condition that he will appear to take his trial.

 Personal recognizance, suretyship bonds and such other modalities are the means by which an
assurance is secured from the accused that though he has been released on bail, he will present
himself at the trial of offence or offences of which he is charged and for which he was arrested.

 The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the
former is granted after arrest and therefore means release from the custody of the police, the latter is
granted in anticipation of arrest and is therefore effective at the very moment of arrest. In other words,
unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in
whose favour it is iss ued is thereafter arrested on the accusation in respect of which the direction is
issued, he shall be released on bail.

 Section 46(1) of the Code of Criminal Procedure which deals with how arrests are to be made,
provides that in making the arrest, the police officer or other person making the arrest "shall actually
touch or confine the body of the person to be arrested, unless there be a submission to custody by
word or action". A direction under Section 438 is intended to confer conditional immunity from this
'touch' or confinement.

It is argued by the learned Additional SolicitorGeneral on behalf of the State Government:

 that the grant of anticipatory bail should at least be conditional upon the applicant showing that he is
likely to be arrested for an ulterior motive, that is to say, that the proposed charge or charges are
evidently baseless and are actuated by mala fides.

Shri V. M. Tarkunde, appearing on behalf of some of the appellants, urged:

 that Section 438 is a procedural provision which is concerned with the personal liberty of an individual
who has not been convicted of the offence in respect of which he seeks bail and who must therefore
 be presumed to be innocent. The validity of that section must accordingly be examined by the test of
fairness and reasonableness, which is implicit in Article 21. If the legislature itself were to impose an
unreasonable restriction on the grant of anticipatory bail, such a restriction could have been struck
down as being violative of Article 21. Therefore, while determining the scope of Section 438, the court
should not impose any unfair or unreasonable limitation on the individual's right to obtain an order of
anticipatory bail. Imposition of an unfair or unreasonable limitation, according to the learned counsel,
would be violative of Article 21, irrespective of whether it is imposed by legislation or by judicial
decision.

The Full Bench of the Punjab and Haryana High Court rejected the appellants' applications for bail after
summarising, what according to it is the true legal position, thus:

(1) The power under Section 438, of the Code, is of an extraordinary character and must be exercised
sparingly in exceptional cases only; [Accepted it Partially]
(2) Neither Section 438 nor any other provision of the Code authorises the grant of blanket anticipatory
bail for offences not yet committed or with regard to accusations not so far levelled. [Accepted in …]
(3) The said power is not unguided or uncanalised but all the limitations imposed in the preceding Section
437, are implicit therein and must be read into Section 438.
(4) In addition to the limitations mentioned in Section 437, the petitioner must make out a special case for
the exercise of the power to grant anticipatory bail.
(5) Where a legitimate case for the remand of the offender to the police custody under Section 167(2) can
be made out by the investigating agency or a reasonable claim to secure incriminating material from
information likely to be received from the offender under Section 27 of the Evidence Act can be made out,
the power under Section 438 should not be exercised.
(6) The discretion under Section 438 cannot be exercised with regard to offences punishable with death or
imprisonment for life unless the court at that very stage is satisfied that such a charge appears to be
false or groundless.
(7) The larger interest of the public and State demand that in serious cases like economic offences
involving blatant corruption at the higher rungs of the executive and political power, the discretion under
Section 438 of the Code should not be exercised; and
(8) Mere general allegations of mala fides in the petition are inadequate. The court must be satisfied on
materials before it that the allegations of mala fides are substantial and the accusation appears to be false
and groundless.

 It was urged before the Full Bench that the appellants were men of substance and position who were
hardly likely to abscond and would be prepared willingly to face trial. This argument was rejected with
the observation that to accord differential treatment to the appellants on account of their status will
amount to negation of the concept of equality before the law and that it could hardly be contended
that every man of status, who was intended to be charged with serious crimes, including the one
under Section 409, IPC which was punishable with life imprisonment, "was entitled to knock at the
door of the court for anticipatory bail". The possession of high status, according to the Full Bench, is
not only an irrelevant consideration for granting anticipatory bail but is, if anything, an aggravating
circumstances.

We find ourselves unable to accept, in their totality, the submissions of the learned Additional Solicitor
General or the constraints which the Full Bench of the High Court has engrafted on the power conferred
by Section 438. Clause (1) of Section 438 is couched in terms, broad and unqualified.

 By any known canon of construction, words of which and amplitude ought not generally to be cut
down so as to read into the language of the statute restraints and conditions which the legislature
itself did not think it proper or necessary to impose. This is especially true when the statutory
provision which falls for consideration is designed to secure a valuable right like to personal freedom
 and involves the application of a presumption as salutary and deep grained in our criminal
jurisprudence as the presumption of innocence. Though the right to apply for anticipatory bail was
conferred for the first time by Section 438, while enacting that provision, the legislature was not
writing on a clean slate in the sense of taking an unprecedented step, insofar as the right to apply for
bail is concerned. It had before it two cognate provisions of the Code: Section 437 which deals with
the power of courts other than the Court of Session and the High Court to grant bail in non-bailable
cases and Section 439 which deals with the "special powers" of the High Court and the Court of
Session regarding bail. The whole of Section 437 is riddled and hedged in by restriction on the power
of certain courts to grant bail.

Section 439(1)(a) incorporates the conditions mentioned in Section 437(3) if the offence in respect of
which the bail is sought is of the nature specified in that sub-section.

 The provisions of Sections 437 and 439 furnished a convenient model for the legislature to copy while
enacting Section 438. If it has not done so and has departed from a pattern which could easily be
adopted with the necessary modifications, it would be wrong to refuse to give the departure its full
effect by assuming that it was not intended to serve any particular or specific purpose. The departure,
in our opinion, was made advisedly and purposefully.

 Advisedly, at least in part, because of the 41st Report of the Law Commission which, while pointing out
the necessity of introducing a provision in the Code enabling the High Court and the Court of Session
to grant anticipatory bail, said in paragraph 39.9 that it had "considered carefully the question of
laying down in the statute certain condition under which alone anticipatory bail could be granted"
but had come to the conclusion that the question of granting such bail should be left "to the discretion
of the court" and ought not to be fettered by the statutory provision itself, since the discretion was
being conferred by upon superior courts which were expected to exercise it judicially. The legislature
conferred a wide discretion on the High Court and the Court of Session to grant anticipatory bail
because it evidently felt, firstly, that it would be difficult to enumerate the conditions under which
anticipatory bail should or should not be granted and secondly, because the intention was to allow the
higher courts in the echelon a somewhat free hand in the grant of relief in the nature of anticipatory
bail.
 That is why, departing from the terms of Sections 437 and 439, Section 438(1) uses the language that
the High Court or the Court of Session "may, if it thinks fit" direct that the applicant be released on
bail. Sub-section (2) of Section 438 is a further and cleared manifestation of the same legislative intent
to confer a wide discretionary power to grant anticipatory bail. It provides that the High Court or the
Court of Session, while issuing a direction for the grant of anticipatory bail, "may include such
conditions in such directions in the light of the facts of the particular case, as it may think fit",
including the conditions which are set out in clauses (i) to (iv) of sub-section (2).

 The proof of legislative intent can best be found in the language which the legislature uses.
Ambiguities can undoubtedly be resolved by resort to extraneous aids but words, as wide and explicit
as have been used in Section 438, must be given their full effect, especially when to refuse to do so
will result in undue impairment of the freedom of the individual and the presumption of innocence. It
has to be borne in mind that anticipatory bail is sought when there is a mere apprehension of arrest on
the accusation that the applicant has committed a non-bailable offence. A person who has yet to lose
his freedom by being arrested asks for freedom in the event of arrest. That is the stage at which it is
imperative to protect his freedom, insofar as one may, and to give full play to the presumption that he
is innocent. In fact, the stage, at which anticipatory bail is generally sought, brings about its striking
dissimilarity with the situation in which a person who is arrested for the commission of a non-bailable
offence asks for bail. In the latter situation, adequate data is available to the court, or can be called for
by it, in the light of which it can grant or refuse relief and while granting it, modify it by the imposition
of all or any of the conditions mentioned in Section 437.
 This is not to say that anticipatory bail, if granted, must be granted without the imposition of any
conditions. That will be plainly contrary to the very terms of Section 438. Though sub-section (1) of
that section says that the court "may, if it thinks fit" issue the necessary direction for bail, sub-section
(2) confers on the court the power to include such conditions in the direction as it may think fit in the
light of the facts of the particular case, including the conditions mentioned in clauses (i) to (iv) of
that sub-section.

The controversy therefore is not whether the court has the power to impose conditions while granting
anticipatory bail. It clearly and expressly has that power. The true question is:
whether by a process of construction, the amplitude of judicial discretion which is given to the High Court
and the Court of Session, to impose such conditions as they may think of it while granting anticipatory bail,
should be cut down by reading into the statute conditions which are not to be found therein, like those
evolved by the High Court or canvassed by the learned Additional Solicitor General.

Our answer, clearly, and emphatically, is in the negative. The High Court and the Court of Session to
whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial
discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case
and on such condition as the case may warrant. Similarly, they must be left free to refuse bail if the
circumstances of the case so warrant, on considerations similar to those mentioned in Section 437 or
which are generally considered to be relevant under Section 439 of the Code.

Generalisations on matters which rest on discretion and the attempt to discover formulae of universal
application when facts are bound to differ from case to case frustrate the very purpose of conferring
discretion.
No two cases are alike on facts and therefore, courts have to be allowed a little free play in the joints if the
conferment of discretionary power is to be meaningful. There is no risk involved in entrusting a wide
discretion to the Court of Session and the High Court in granting anticipatory bail because:
 firstly, these are higher courts manned by experienced persons,
 secondly, their orders are not final but are open to appellate or revisional scrutiny and
 above all because, discretion has always to be exercised by courts judicially and not according to
whim, caprice or fancy.

 On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be
allowed because life throws up unforeseen possibilities and offers new challenges. Judicial discretion
has to be free enough to be able to take these possibilities in its stride and to meet these challenges.

 Judges have to decide cases as they come before them, mindful of the need to keep passions and
prejudices out of their decisions. And it will be strange if, by employing judicial artifices and
techniques, we cut down the discretion so wisely conferred upon the courts, by devising a formula
which will confine the power to grant anticipatory bail within a straitjacket. While laying down cast-
iron rules in a matter like granting anticipatory bail, as the High Court has done it is apt to be
overlooked that even judges can have but an imperfect awareness of the needs of new situations. Life
is never static and every situation has to be assessed in the context of emerging concerns as and when
it arises.

Therefore, even if we were to frame a 'Code for the grant of anticipatory bail', which really is the business
of the legislature, it can at best furnish broad guidelines and cannot compel blind adherence. In which case
to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion. But apart from
the fact that the question is inherently of a kind which calls for the use of discretion from case to case, the
legislature has, in terms express, relegated the decision of that question to the discretion of the court, by
providing that it may grant bail "if it thinks fit".
A close look at some of the rules in the eight-point code formulated by the High Court will show how
difficult it is to apply them in practice.

The seventh proposition says: The larger interest of the public and State demand that in serious cases like
economic offences involving blatant corruption at the higher rungs of the executive and political power, the
discretion under Section 438 of the Code should not be exercised.

 How can the court, even if it had a third eye, assess the blatantness of corruption at the stage of
anticipatory bail? And will it be correct to say that blatantness of the accusation will suffice for
rejecting bail, if the applicant's conduct is painted in colours too lurid to be true?

The eighth proposition rule framed by the High Court says:Mere general allegations of mala fides in the
petition are inadequate. The court must be satisfied on materials before it that the allegations of mala fides
are substantial and the accusation appears to be false and groundless.

 Does this rule mean, and that is the argument of the learned Additional Solicitor-General, that
anticipatory bail cannot be granted unless it is alleged (and naturally, also shown, because mere
allegation is never enough) that the proposed accusation are malafide? It is understandable that if
mala fides are shown, anticipatory bail should be granted in the generality of cases.
 But it is not easy to appreciate why an application for anticipatory bail must be rejected unless the
accusation is shown to be malafide. This, truly, is the risk involved in framing rules by judicial
construction. Discretion, therefore, ought to be permitted to remain in the domain of discretion, to be
exercised objectively and open to correction by the higher courts. The safety of discretionary power
lies in this twin protection which provides a safeguard against its abuse.

According to the sixth proposition framed by the High Court: the discretion under Section 438 cannot be
exercised in regard to offences punishable with death or imprisonment for life unless, the court at the stage
of granting anticipatory bail, is satisfied that such a charge appears to be false or groundless.

 Now, Section 438 confers on the High Court and the Court of Session the power to grant anticipatory
bail if the applicant has reason to believe that he may be arrested on an accusation of having
committed "a non-bailable offence". We see no warrant for reading into this provision the conditions
subject to which bail can be granted under Section 437(1) of the Code. That section, while conferring
the power to grant bail in cases of non-bailable offences, provides by way of an exception that a
person accused or suspected of the commission of a non-bailable offence "shall not be so released" if
there appear to be reasonable grounds for believing that he has been guilty of an offence punishable
with death or imprisonment for life. If it was intended that the exception contained in Section 437(1)
should govern the grant of relief under Section 438(1), nothing would have been easier for the
legislature than to introduce into the latter section a similar provision.

 We have already pointed out the basic distinction between these two sections. Section 437 applies
only after a person, who is alleged to have committed a non-bailable offence, is arrested or detained
without warrant or appears or is brought before a court. Section 438 applies before the arrest is made
and, in fact, one of the pre-conditions of its application is that the person, who applies for relief under
it, must be able to show that he has reason to believe that "he may be arrested", which plainly means
that he is not yet arrested. The nexus which this distinction bears with the grant or refusal of bail is
that in cases falling under Section 437, there is some concrete data on the basis of which it is possible
to show that there appear to be reasonable grounds for believing that the applicant has been guilty of
an offence punishable with death or imprisonment for life. In case falling under Section 438 that stage
is still to arrive and, in the generality of cases thereunder, it would be premature and indeed difficult
to predicate that there are or are not reasonable grounds for so believing.
 The foundation of the belief spoken of in Section 437(1), by reason of which the court cannot release
there applicant on bail is, normally, the credibility of the allegations contained in the first information
report. In the majority of cases falling under Section 438, that data will be lacking for forming the
requisite belief. If at all the conditions mentioned in Section 437 are to be read into the provisions of
Section 438, the transplantation shall have to be done without amputation. That is to say, on the
reasoning of the High Court, Section 438(1) shall have to be read as containing the clause that the
applicant "shall not" be released on bail "if there appear reasonable grounds for believing that he
has been guilty of an offence punishable with death or imprisonment for life".
 In this process one shall have overlooked that whereas, the power under Section 438(1) can be
exercised if the High Court or the Court of Session "thinks fit" to do so, Section 437(1) does not confer
the power to grant bail in the same wide terms. The expression "if it thinks fit", which occurs in
Section 438(1) in relation to the power of the High Court or the Court of Session, is conspicuously
absent in Section 437(1). We see no valid reason for rewriting Section 438 with a view, not to
expanding the scope and ambit of the discretion conferred on the High Court and the Court of Session
but, for the purpose of limiting it.

Accordingly, we are unable to endorse the view of the High Court that anticipatory bail cannot be granted
in respect of offences like criminal breach of trust for the mere reason that the punishment provided
therefor is imprisonment for life. Circumstances may broadly justify the grant of bail in such cases too,
though of course, the court is free to refuse anticipatory bail in any case if there is material before it
justifying such refusal.

A great deal has been said by the High Court on the fifth proposition framed by it, according to which,
inter alia: the power under Section 438 should not be exercised if the investigating agency can make a
reasonable claim that it can secure incriminating material from information likely to be received from the
offender under Section 27 of the Evidence Act.
 According to the High Court, it is right and the duty of the police to investigate into offences brought
to their notice and therefore, courts should be careful not to exercise their powers in a manner, which
is calculated to cause interference therewith. It is true that the functions of the judiciary and the police
are in a sense complementary and not overlapping.

 An order of anticipatory bail does not in any way, directly or indirectly, take away from the police their
right to investigate into charges made or to be made against the person released on bail. In fact, two
of the usual conditions incorporated in a direction issued under Section 438(1) are those
recommended in sub-section (2)(i) and (ii) which require the applicant to co-operate with the police
and to assure that he shall not tamper with the witnesses during and after the investigation.
 While granting relief under Section 438(1), appropriate conditions can be imposed under Section
438(2) so as to ensure an uninterrupted investigation. One of such conditions can even be that in the
event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the
person released on bail shall be liable to be taken in police custody for facilitating the discovery.
Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of
Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information
supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v.
Deoman Upadhyaya [AIR 1960 SC 1125] to the effect that when a person not in custody approaches a
police officer investigating an offence and offers to give information leading to the discovery of a fact,
having a bearing on the charge which may be made against him, he may appropriately be deemed so
have surrendered himself to the police. The broad foundation of this rule is stated to be that Section 46
of the Code of Criminal Procedure does not contemplate any formality before a person can be said to
be taken in custody: submission to the custody by word or action by a person is sufficient. For similar
reasons, we are unable to agree that anticipatory bail should be refused if a legitimate case for the
remand of the offender to the police custody under Section 167(2) of the Code is made out by the
investigating agency.
It is unnecessary to consider the third proposition of the High Court in any great details because
 we have already indicated that there is no justification for reading into Section 438 the limitations
mentioned in Section 437. The High Court says that such limitation are implicit in Section 438 but, with
respect, no such implication arise or can be read into that section. The plenitude of the section must
be given its full play.

The High Court says in its fourth proposition that: in addition to the limitations mentioned in Section 437,
the petitioner must make out a "special case" for exercise of the power to grant anticipatory bail.

 This, virtually, reduces the salutary power conferred by Section 438 to a dead letter. In its anxiety,
otherwise just, to show that the power conferred by Section 438 is not "unguided or uncanalised", the
High Court has subjected that power to restraint which will have the effect of making the power
utterly unguided. To say that the applicant must make out a "special case" for the exercise of the
power to grant anticipatory bail is really to say nothing. The applicant has undoubtedly to make out a
case for the grant of anticipatory bail. But one cannot go further and say that he must make out a
"special case".
 We do not see why the provisions of Section 438 should be suspected as containing something volatile
or incendiary, which needs to be handled with the greatest care and caution imaginable. A wise
exercise of judicial power inevitably takes care of the evil consequences, which are likely to flow out of
its intemperate use. Every kind of judicial discretion, whatever may be the nature of matter in regard
to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness
of the context in which the discretion is required to be exercised and of the reasonably foreseeable
consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to
make a bugbear of the power to grant anticipatory bail.

By proposition No. 1 the High Court says that the power conferred by Section 438 is “of an extraordinary
character and must be exercised sparingly in exceptional cases only.”
 It may perhaps be right to describe the power as of an extraordinary character because ordinarily the
bail is applied for under Section 437 or Section 439. These sections deal with the power to grant or
refuse bail to a person who is in the custody of the police and that is the ordinary situation in which
bail is generally applied for. But this does not justify the conclusion that the power must be exercised
in exceptional cases only because it is of an extraordinary character. We will really be saying once too
often that all discretion has to be exercised with care and circumspection, depending on circumstances
justifying its exercise. It is unnecessary to travel beyond it and subject the wide power conferred by
the legislature to a rigorous code of selfimposed limitation.

It remains only to consider the second proposition formulated by the High Court, which is the only one
with which we are disposed to agree but we will say more about it a little later.

It will be appropriate at this stage to refer to a decision of this Court in Balchand Jain v. State of Madhya
Pradesh [(1976) 4 SCC 572] on which the High Court has learned heavily in formulating its propositions.
One of us, Bhagwati, J. who spoke for himself and A. C. Gupta, J. observed in that case that:

This power of granting 'anticipatory bail' is somewhat extraordinary in character and it is only in
exceptional cases where it appears that a person might be falsely implicated, or a frivolous case might be
launched against him, or "there are reasonable grounds for holding that a person accused of an offence is
not likely to abscond or otherwise misuse his liberty while on bail" that such power is to be exercised.

Fazal Ali, J. who delivered a separate judgment of concurrence also observed that: (SCC pp. 582-83, para
14) An order for anticipatory bail is an extraordinary remedy available in special cases . . . and proceeded to
say:
As Section 438 immediately follows Section 437 which is the main provision for bail in respect of non-
bailable offences, it is manifest that the conditions imposed by Section 437(1) are implicitly contained in
Section 438 of the Code. Otherwise the result would be that a person who is accused of murder can get
away under Section 438 by obtaining an order for anticipatory bail without the necessity of proving that
there were reasonable grounds for believing that he was not guilty of offence punishable with death of
imprisonment for life. Such a course would render the provisions of Section 437 nugatory and will give a
free licence to the accused persons charged with non-bailable offences to get easy bail by approaching the
court under Section 438 and bypassing Section 437 of the Code. This, we feel could never have been the
intention of the legislature. Section 438 does not contain unguided or uncanalised powers to pass an
order for anticipatory bail, but such an order being of an exceptional type can only be passed if, apart
from the conditions mentioned in Section 437, there is a special case made out for passing the order.
The words "for a direction under this section" and "court may if it thinks fit, direct" clearly show that the
court has to be guided by a large number of considerations including those mentioned in Section 437 of
the Code.

While stating his conclusions Fazal Ali, J. reiterated in conclusion No. 3 that “Section 438 of the Code is an
extraordinary remedy and should be resorted only in special cases.”

 We hold the decision in Balchand Jain in great respect but it is necessary to remember that the
question as regards the interpretation of Section 438 did not at all arise in that case. Fazal Ali, J. has
stated in paragraph 3 of his judgement that "the only point" which arose for consideration before the
court was whether the provisions of Section 438 relating to anticipatory bail stand overruled and
repealed by virtue of Rule 184 of the Defence and Internal Security of India Rules, 1971 or whether
both the provisions can, by the rule of harmonious interpretation, exist side by side.

 Bhagwati, J. has also stated in his judgement, after adverting to Section 438 that Rule 184 is what the
court was concerned with in the appeal.

 The observations made in Balchand Jain regarding the nature of the power conferred by Section 438
and regarding the question whether the conditions mentioned in Section 437 should be read into
Section 438 cannot therefore be treated as concluding the points which arise directly for our
consideration.

We agree, with respect, that the power conferred by Section 438 is of an extraordinarily character in the
sense indicated above, namely, that it is not ordinarily resorted to like the power conferred by Section 437
and 439. We also agree that the power to grant anticipatory bail should be exercised with due care and
circumspection but beyond that it is not possible to agree with observations made in Balchand Jain
altogether different context on an altogether different point.

We find a great deal of substance in Mr. Tarkunde's submission:

 that since denial of bail amounts to deprivation of personal liberty, the court should lean against the
imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions
have been imposed by the legislature in the terms of that section.
 Section 438 is a procedural provision which is concerned with personal liberty of the individual, who is
entitled to the benefit of the presumption of innocence since he is not, on the date of his application for
anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion
of constraints and conditions which are not to be found in Section 438 can make its provisions
constitutionally vulnerable since the right to personal freedom cannot be made to depend on
compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be
saved, not jettisoned.
 No doubt can linger after the decision in Maneka Gandhi [Maneka Gandhi v. Union of India (1978) 1
SCC 248] that in order to meet the challenge of Article 21 of the Constitution, the procedure established
 by law for depriving a person of his liberty must be fair, just and reasonable. Section 438 in the form in
which it is conceived by the legislature, is open to no exception on the ground that it prescribes a
procedure which is unjust or unfair. We ought, at all costs to avoid throwing it open to a constitutional
challenge by reading words in it which are not to be found therein.

It is not necessary to refer to decision, which deal with the right to ordinary bail because that right does
not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as
in 1924 it was held by the High Court of Calcutta in Nagendra v. King-Emperor (AIR 1924 Cal 476) that the
object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the
solution of the question whether bail should be granted or refused is whether it is probable that the party
will appear to take his trial and that it is indisputable that bail is not to be withheld as punishment.

In two other cases which, significantly, are the 'Meerut Conspiracy cases' observations are to be found
regarding the right to bail, which deserve a special mention.

 In K. N. Joglekar v. Emperor (AIR 1931 All 504) it was observed, while dealing with Section 498 which
corresponds to the present Section 439 of the Code, that it conferred upon the Sessions Judge or the
High Court wide powers to grant bail which were not handicapped by the restrictions in the
preceding Section 497 which corresponds to the present Section 437. It was observed by the court
that there was no hard and fast rule and no inflexible principle governing the exercise of the
discretion conferred by Section 498 and that the only principle which was established was that the
discretion should be exercised judiciously.

 In Emperor v. Hutchinson (AIR 1931 All 356) it was said that it was very unwise to make an attempt to
lay down any particular rules which will bind the High Court, having regard to the fact that the
legislature itself left the discretion of the court unfettered. According to the High Court, the variety of
cases that may arise from time to time cannot be safely classified and it is dangerous to make an
attempt to classify the cases and to say that in particular classes a bail may be granted but not in
other classes. It was observed that the principle to be deduced from the various sections in the
Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. An accused
person who enjoys freedom is in a much better position to look after his case and to properly defend
himself than if he were in custody. As a presumably innocent person he is therefore entitled to
freedom and every opportunity to look after his own case. A presumably innocent person must have
his freedom to enable him to establish his innocence.

Coming nearer home, it was observed by Krishna Iyer, J., in Gudikanti Narasimhulu v. Public Prosecutor
[(1978) 1 SCC 240] that:. . . the issue of bail is one of liberty, justice, public safety and burden of the public
treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial
process. . . . After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only
in terms of procedure established by law. The last four words of Article 21 are the life of that human right.

In Gurcharan Singh v. State (Delhi Administration) [(1978) 1 SCC 118] it was observed by Goswami, J., who
spoke for the court that: There cannot be an inexorable formula in the matter of granting bail. The facts
and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail.

In AMERICAN JURISPRUDENCE (2d, Volume 8, page 806, para 39), it is stated:

Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a
large extent, by the facts and circumstances of each particular case. Since the object of the detention or
imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the
judgement of the court, the primary inquiry is whether a recognizance or bond would effect that end. It is
thus clear that the question whether to grant bail or not depends for its answer upon a variety of
circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single
circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of
bail.

In regard to anticipatory bail:

 if the proposed accusation appears to stem not from motives of furthering the ends of justice but from
some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a
direction for the release of the applicant on bail in the event of his arrest would generally be made.

 On the other hand, if it appears likely, considering the antecedents of the applicant, that taking
advantage of the order of anticipatory bail he will flee from justice, such an order would not be made.
But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as
an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to
be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that
the applicant will abscond.

There are several other considerations, too numerous to enumerate, the combined effect of which must
weigh with the court while granting or rejecting anticipatory bail.
 The nature and seriousness of the proposed charges,
 the context of the events likely to lead to the making of the charges,
 a reasonable possibility of the applicant's presence not being secured at the trial,
 a reasonable apprehension that witnesses will be tampered with and "the larger interests of the public
or the State"
are some of the considerations which the court has to keep in mind while deciding an application for
anticipatory bail.

The relevance of these considerations was pointed out in The State v. Captain Jagjit Singh (AIR 1962 SC
253), which, though was a case under the old Section 498 which corresponds to the present Section 439 of
the Code.

 It is of paramount consideration to remember that the freedom of the individual is as necessary for the
survival of the society as it is for the egoistic purpose of the individual. A person seeking anticipatory
bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on
his freedom, by the acceptance of condition which the court may think fit to impose, in consideration of
the assurance that if arrested he shall be enlarged on bail.

A word of caution may perhaps be necessary in the evaluation of the consideration whether the
applicant is likely to abscond.
There can be no presumption that the wealthy and the mighty will submit themselves to trial and that the
humble and the poor will run away from the course of justice, any more than there can be a presumption
that the former are not likely to commit a crime and the latter are more likely to commit it. In his charge to
the grand jury at Salisbury Assizes, 1899 (to which Krishna Iyer, J. has referred in Gudikanti [(1978) 1 SCC
240], Lord Russel of Killowen said:
It was the duty of magistrates to admit accused persons to bail, wherever practicable, unless there were
strong grounds for supposing that such persons would not appear to take their trial. It was not the poorer
classes who did not appear, for their circumstances were such as to tie them to the place where they
carried on their work. They had not the golden wings with which to fly from justice.

 This, incidentally, will serve to show how no hard and fast rules can be laid down in discretionary
matters like the grant or refusal of bail, whether anticipatory or otherwise. No such rules can be laid
down for the simple reason that a circumstance which, in a given case, turns out to be conclusive, may
have no more than ordinary signification in another case.
 We would therefore, prefer to leave the High Court and the Court of Session to exercise their
jurisdiction under Section 438 by a wise and careful use of their discretion which, by their long training
and experience, they are ideally suited to do. The ends of justice will be better served by trusting these
courts to act objectively and in consonance with principles governing the grant of bail which are
recognised over the years, than by divesting them of their discretion which the legislature has
conferred upon them, by laying down inflexible rules of general application. It is customary, almost
chronic to take a statute as one finds it on the ground that, after all, "the legislature in its wisdom" has
thought it fit to use a particular expression. A convention may usefully grow whereby the High Court
and the Court of Session may be trusted to exercise their discretionary powers in their wisdom,
especially when the discretion is entrusted to their care by the legislature in its wisdom. If they err, they
are liable to be corrected.

This should be the end of the matter, but it is necessary to clarify a few points, which have given rise to
certain misgivings.

 Section 438(1) of the Code lays down a condition, which has to be satisfied before anticipatory bail can
be granted. The applicant must show that he has "reason to believe" that he may be arrested for a
non-bailable offence. The use of the expression "reason to believe" shows that the belief that the
applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief', for
which reason it is not enough for the applicant to show that he has some sort of a vague apprehension
that some one is going to make an accusation against him, in pursuance of which he may be arrested.
The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable
offence, must be capable of being examined by the court objectively, because it is then alone that the
court can determine whether the applicant has reason to believe that he may be so arrested. Section
438(1) therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself
in perpetuity against a possible arrest. Otherwise, the number of application for anticipatory bail will
be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual's
liberty; it is neither a passport to the commission of crimes nor a shield against any or all kinds of
accusations, likely or unlikely.

 Secondly if an application for anticipatory bail is made to the High Court or the Court of Session it must
apply its own mind to the question and decide whether a case has been made out for granting such
relief. It cannot leave the question for the decision of the Magistrate concerned under Section 437 of
the Code, as and when an occasion arises. Such a course will defeat the very object of Section 438.

 Thirdly, the filing of a first information report is not a condition precedent to the exercise of the power
under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to
exist even if an FIR is not yet filed.

 Fourthly, anticipatory bail can be granted even after an FIR is filed, so long as the applicant has not
been arrested.

 Fifthly, the provisions of Section 438 cannot be invoked after the arrest of the accused. The grant of
"anticipatory bail" to an accused who is under arrest involves a contradiction in terms, insofar as the
offence or offences for which he is arrested, are concerned. After arrest, the accused must seek his
remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of
the offence or offences for which he is arrested.

We have said that there is one proposition formulated by the High Court with which we are inclined to
agree. That is proposition (2).
 We agree that a 'blanket order' of anticipatory bail should not generally be passed. This flows from the
very language of the section which, as discussed above, requires the applicant to show that he has
 "reason to believe" that he may be arrested. A belief can be said to be founded on reasonable grounds
only if there is something tangible to go by on the basis of which it can be said that the applicant's
apprehension that he may be arrested is genuine. That is why, normally, a direction should not issue
under Section 438(1) to the effect that the applicant shall be released on bail "whenever arrested for
whichever offence whatsoever". That is what is meant by a 'blanket order' of anticipatory bail, an
order which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity, in
fact any eventuality, likely or unlikely regarding which, no concrete information can possibly be had.
The rationale of a direction under Section 438(1) is the belief of the applicant founded on reasonable
grounds that he may be arrested for a non-bailable offence. It is unrealistic to expect the applicant to
draw up his application with the meticulousness of a pleading in a civil case and such is not
requirement of the section. But specific events and facts must be disclosed by the applicant in order to
enable the court to judge of the reasonableness of his belief, the existence of which is the sine qua non
of the exercise of power conferred by the section.

 Apart from the fact that the very language of the statute compels this construction, there is an
important principle involved in the insistence that facts, on the basis of which a direction under
Section 438(1) is sought must be clear and specific, not vague and general. It is only by the observance
of that principle that a possible conflict between the right of an individual to his liberty and the right of
the police to investigate into crimes reported to them can be avoided.

A blanket order of anticipatory bail is bound to cause serious interference with both the right and the duty
of the police in the matter of investigation because, regardless of what kind of offence is alleged to have
been committed by the applicant and when, an order of bail which comprehends allegedly unlawful activity
of any description whatsoever, will prevent the police from arresting the applicant even if he commits, say,
a murder in the presence of the public. Such an order can then become a charter of lawlessness and a
weapon to stifle prompt investigation into offences which could not possibly be predicated when the order
was passed. Therefore, the court which grants anticipatory bail must take care to specify the offence or
offences in respect of which alone the order will be effective. The power should not be exercised in a
vacuum.

There was some discussion before us on certain minor modalities regarding the passing of bail orders
under Section 438(1). Can an order of bail be passed under the section without notice to the Public
Prosecutor?
 It can be. But notice should issue to the Public Prosecutor or the Government Advocate forthwith and
the question of bail should be re-examined in the light of the respective contentions of the parties. The
ad interim order too must conform to the requirements of the section and suitable conditions should
be imposed on the applicant even at that stage.

Should the operation of an order passed under Section 438(1) be limited in point of time?
 Not necessarily. The court may, if there are reasons for doing so, limit the operation of the order to a
short period unit after the filing of an FIR in respect of the matter covered by the order. The applicant
may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Code within a
reasonably short period after the filing of the FIR as aforesaid. But this need not be followed as an
invariable rule. The normal rule should be not to limit the operation of the order in relation to a
period of time.

During the last couple of years this Court, while dealing with appeals against orders passed by various High
Courts, has granted anticipatory bail to many a person by imposing conditions set out in Section 438(2) (i),
(ii) and (iii).
 The court has, in addition, directed in most of those cases that the applicant should surrender himself
to the police for a brief period if a discovery is to be made under Section 27 of the Evidence Act or
that he should be deemed to have surrendered himself if such a discovery is to be made.
 In certain exceptional cases, the court has, in view of the material placed before it, directed that the
order of anticipatory bail will remain in operation only for a week or so until after the filling of the FIR
in respect of matters covered by the order.
These orders, on the whole, have worked satisfactorily, causing the least inconvenience to the individuals
concerned and least interference with the investigational rights of the police. The court has attempted
through those orders to strike a balance between the individual's right to personal freedom and the
investigational rights of the police.

The appellants who were refused anticipatory bail by various courts have long since been released by this
Court under Section 438(1) of the Code.

The various appeals and special leave petitions before us will stand disposed of in terms of this judgment.
The judgment of the Full Bench of the Punjab and Haryana High Court, which was treated as the main case
under appeal is substantially set aside as indicated during the course of this judgment.
 State (Delhi Administration) v. Sanjay Gandhi
(1978) 2 SCC 411

Y. V. CHANDRACHUD, C.J. -

The respondent is arraigned as accused No. 2 in a prosecution instituted by the Central Bureau of
Investigation in the court of the learned Chief Metropolitan Magistrate, Delhi. Omitting details which are
not necessary for the present purpose, the case of the prosecution is as follow:

One Shri Amrit Nahata had produced a film called 'Kissa Kursi Ka', which portrayed the story of the
political doings of the respondent and his mother, Smt. Indira Gandhi, the former Prime Minister of
India.
The Board of Censors declined to grant a certificate for exhibition of the film whereupon, Shri Nahata
filed a writ petition in this Court for a Writ of mandamus.
On October 29, 1975, a direction was given by the Court that the film be screened on November 17 to
enable the Judges to see whether the censorship certificate was refused rightly.
In order to prevent this Court from exercising its constitutional jurisdiction and with a view to
preventing the film from being publicly exhibited, the respondent and his co-accused Shri Vidya
Charan Shukla, who was then the Minister for information and Broadcasting, entered into a conspiracy
to take possession of the film and to destroy it.
The Supreme Court was informed that it was not possible to screen the film for evaluation by the
Judges. And the writ petition filed by Shri Nahata came to an abrupt end upon an affidavit being filed
on March 22, 1976, by one Mr. Ghose that the spools of the film had got mixed up with some other
films received by the Government in connection with the International Film Festival.

After the emergency was lifted and the present Janata Government came into power, a certain
information was received in consequence of which a raid was effected on the Gurgaon premises of the
Maruti Limited. The raid yielded incriminating material to show that the 13 boxes which had been
received from Bombay at the New Delhi Railway Station contained the spools of the film 'Kissa Kursi Ka'
which were burnt and destroyed in the factory premises.

R. B. Khedkar, a Security Officer of the Maruti Limited and his assistant, Kanwar Singh Yadav, who was
the Security Supervisor of the company, were arrested on the very day of the raid. Yadav made a
statement on the following day stating how the film was burnt in the premises of the factory. Yadav's
confessional statement was recorded by the Chief Metropolitan Magistrate on June 3 and Khedkar's
on June 4. They were granted pardon under Section 306 of the Code of Criminal Procedure on July 14,
1977.

After completion of the investigation, a charge-sheet was filed by the C.B.I. in the court of the Chief
Metropolitan Magistrate citing 138 witnesses for proving charges under Section 120B read with
Sections 409, 435 and 201 of the Penal Code as also for substantive offences under the last
mentioned three sections of the Penal Code.

Section - 409: Criminal Breach of Trust by Public Servant, or by Banker, Merchant or Agent:
Whoever, being in any manner entrusted with property, or with any dominion over property in his
capacity of a public servant or in the way of his business as a banker, merchant, factor, broker,
attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with
imprisonment for life, or with imprisonment of either description for a term which may extend to 10
years, and shall also be liable to fine.
Section 435: Mischief by Fire or Explosive Substance with Intent to Cause Damage to Amount of One
Hundred or (in Case of Agricultural Produce) Ten Rupees:
Whoever commits mischief by fire or any explosive substance intending to cause, or knowing it to be
likely that he will thereby cause, damage to any property to the amount of one hundred rupees or
upwards or (where the property is agricultural produce) ten rupees or upwards, shall be punished with
imprisonment of either description for a term which may extend to 7 years, and shall also be liable to
fine.

Section 201: Causing Disappearance of Evidence of Offence, or Giving False Information to Screen
Offender

In certain proceedings for contempt and perjury which were filed in this Court against Shri Shukla, it
was directed by the Court on January 2, 1978, that the Chief Metropolitan Magistrate shall commence
the hearing of the case of February 15 and that the Sessions Court will commence the trial on March
20, 1978, and shall proceed with the hearing from day to day. By an order dated February 14, the
Court extended the time limit by four days in each case

Khedkar supported the prosecution fully except that he admitted in his cross-examination that he had
written two inland letters, which may tend to throw a cloud on his evidence. On February 21, the
second approver Yadav was examined by the prosecution. He resiled both from the statement which
he made to the police under Section 161 of the Code of Criminal Procedure as well as from his judicial
confession. The recording of Yadav's evidence was over on the 22nd.

On February 27, 1978: An application was filed by the Delhi Administration, in the High Court of Delhi for
cancellation of the respondent's bail. That application having been dismissed by a learned single Judge on
April 11, 1978, the Administration has filed this appeal by special leave.

We are not disposed to allow the State to rely on any new material which was not available to the High
Court. True, that the additional data came into existence after the High Court gave its judgment but it
would be unfair to the respondent to make use of that material without giving him an adequate
opportunity to meet it. That will entail a fairly long adjournment which may frustrate the very object of
the proceedings initiated by the State. Besides, though in appropriate cases the court has the power to
take additional evidence, that power has to be exercised sparingly, particularly in appeals brought under
Article 136 of the Constitution. The High Court, while dismissing the State's application for cancellation
of bail, has reserved to it the liberty to approach it "if, at any time in future, the respondent abuses his
liberty". The new developments could, if the prosecution is so advised, be brought to the High Court's
attention for obtaining suitable relief. We cannot spend our time in scanning affidavits and sifting
material for the first time for ourselves, for determining whether the new material can justify
cancellation of bail. We propose, therefore, to limit ourselves to the facts and incidents which were
before the High Court and on which it has pronounced.

Rejection of bail when bail is applied for is one thing; cancellation of bail already granted is quite
another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in
such a case. Cancellation of bail necessarily involves the review of a decision already made and can by
and large be permitted only if, by reason of supervening circumstances, it would be no longer
conducive to a fair trial to allow the accused to retain his freedom during the trial.

The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that the
accused has won them over. A brother, a sister or a parent who has seen the commission of crime,
may resile in the Court from a statement recorded during the course of investigation. That happens
instinctively, out of natural love and affection, not out of persuasion by the accused. The witness has a
stake in the innocence of the accused and tries therefore to save him from the guilt. Likewise, an
 employee may, out of a sense of gratitude, oblige the employer by uttering an untruth without
pressure or persuasion.
In other words, the objective fact that witnesses have turned hostile must be shown to bear a causal
connection with the subjective involvement therein of the respondent. Without such proof, a bail
once granted cannot be cancelled on the off chance or on the supposition that witnesses have been
won over by the accused. Inconsistent testimony can no more be ascribed by itself to the influence of
the accused than consistent testimony, by itself, can be ascribed to the pressure of the prosecution.

Therefore, Mr. Mulla is right that one has to countenance a reasonable possibility that the employees
of Maruti like the approver Yadav might have, of their own volition, attempted to protect the
respondent from involvement in criminal charges. Their willingness now to oblige the respondent would
depend upon how much the respondent has obliged them in the past. It is therefore necessary for the
prosecution to show some act or conduct on the part of the respondent from which a reasonable
inference may arise that the witnesses have gone back on their statements as a result of an
intervention by or on behalf of the respondent.

Before we go to the facts of the case, it is necessary to consider what precisely is the nature of the
burden which rests on the prosecution in an application for cancellation of bail.

Is it necessary for the prosecution to prove by a mathematical certainty or even beyond a reasonable doubt
that the witnesses have turned hostile because they are won over by the accused ?

We think not. The issue of cancellation of bail can only arise in criminal cases, but that does not mean
that every incidental matter in a criminal case must be proved beyond a reasonable doubt like the
guilt of the accused. Whether an accused is absconding and therefore his property can be attached
under Section 83 of the Criminal Procedure Code, whether a search of person or premises was taken
as required by the provisions of Section 100 of the Code, whether a confession is recorded in strict
accordance with the requirements of Section 164 of the Code and whether a fact was discovered in
consequence of information received from an accused as required by Section 27 of the Evidence Act
are all matters which fall particularly within the ordinary sweep of criminal trials.

But though the guilt of the accused in cases which involve the assessment of these facts has to be
established beyond a reasonable doubt, these various facts are not required to be proved by the same
rigorous standard. Indeed, proof of facts by preponderance of probabilities as in a civil case is not
foreign to criminal jurisprudence because, in cases where the statute raises a presumption of guilt as,
for example, the Prevention of Corruption Act, the accused is entitled to rebut that presumption by
proving his defence by a balance of probabilities. He does not have to establish his case beyond a
reasonable doubt. The same standard of proof as in a civil case applies to proof of incidental issues
involved in a criminal trial like the cancellation of bail of an accused.

The prosecution, therefore, can establish its case in an application for cancellation of bail by showing on a
preponderance of probabilities that the accused has attempted to tamper or has tampered with its
witnesses. Proving by the test of balance of probabilities that the accused has abused his liberty or that
there is a reasonable apprehension that he will interfere with the course of justice is all that is necessary for
the prosecution to do in order to succeed in an application for cancellation of bail.

Our task therefore is to determine whether, by the application of the test of probabilities, the
prosecution has succeeded in proving its case that the respondent has tampered with its witnesses and
that there is a reasonable apprehension that he will continue to indulge in that course of conduct if he is
allowed to remain at large.
 Normally, the High Court's findings are treated by this Court as binding on such issues but, regretfully,
we have to depart from that rule since the High Court has rejected incontrovertible evidence on
hypertechnical considerations.
If two views of the evidence were reasonably possible and the High Court had taken one view, we
would have been disinclined to interfere therewith in this appeal under Article 136 of the Constitution.
But the evidence points in one direction only, leaving no manner of doubt that the respondent has
misused the facility afforded to him by the High Court by granting anticipatory bail to him.

The sequence of events is too striking to fail to catch the watchful eye. But, we will not enter too
minutely into the several incidents on which the appellant relies to prove its case. We will confine
ourselves to some of the outstanding instances and show how the prosecution is justified in its
apprehension.

Kanwar Singh Yadav was working at the relevant time as a Security Supervisor under R. B. Khedkar
who was the Security officer of Maruti Ltd. Both of them were arrested and the very day of the raid,
that is, on May 25, 1977. On the 26th, the police recorded Yadav's statement and on the 28th, he
made a petition to the Chief Metropolitan Magistrate, expressing his willingness to confess. The
confessional statement was recorded on June 3 and Yadav was granted pardon on July 14, under
section 306 of the Code of Criminal Procedure.

Khedkar made a confession on June 4 and was granted pardon on July 14, 1977.
The C.B.I. filed the chargesheet on 14th July itself.
The committal proceedings were fixed by this Court by an order dated January 2, 1978 to begin
peremptorily on February 15, 1978. The respondent obtained a modification of that order, by virtue of
which the proceedings began on February 20.
One day before the proceedings were originally scheduled to begin, that is on 14th February, the two
approvers, Yadav and Khedkar, appeared at the C.B.I. office and filed written complaints dated the
13th that the respondent was making repeated attempts to call Yadav to meet him by sending the
car with Ram Chander, the driver of the respondent. One of these complaints is signed by Yadav and
the other by Khedkar.
Yadav turned hostile when he was examined on the 21st February before the Committing Magistrate.
He went back on his police statement, resiled from his confession and risked his pardon. But he
admitted in his cross-examination to the Public Prosecutor that he had given the complaint to the
C.B.I. He explained it away by offering a series of excuses but we will only characterise that attempt as
lame and unconvincing.
A deeper probe into the matter and its critical analysis is likely to exceed the legitimate bounds of this
proceeding and therefore we will stop with the observation that there is more than satisfactory proof of
the respondent having attempted to suborn Yadav. Whether Yadav succumbed to the persuasion is not
for us to say.
The Sessions Judge shall have to decide that question uninfluenced by anything appearing herein. We
are concerned with the respondent's conduct, not with Yadav's reaction or his motives. Khedkar stuck
to the complaint.

That is in regard to the event of the 14th February. On the 17th Yadav and the respondent were seen
together, the former leaving, the Maruti factory with the respondent in his car. This is supported by
the affidavits of Sat Pal Singh, a constable of the Haryana Armed Constabulary who was on duty at
the Factory, Ganpat Singh, a Postal Peon and Digambar Das, an Assistant DIspatch Clerk in Maruti. It
is undisputed that the respondent had gone for official work to the factory on the 17th.

The High Court objects the incident firstly because it is not mentioned in the petition for cancellation
of the respondent's bail. The affidavit of Ved Prakash, Inspector of Police, C.B.I., shows that
information of the incident was received on the 24th whereas the petition was drafted on the 22nd
 February. That apart, we cannot understand the High Court to say that the affidavits of the three
witnesses could not be accepted because the verification clause of the affidavits was "most defective"
as it could not be said "what part of the affidavit is true to the knowledge of the deponent and what
part thereof is true to the belief of the deponent". This reason has been cited by the learned Judge for
rejecting many an incident but then it was open to him to ask for better particulars of verification.

The witnesses claim to have seen with their own eyes that Yadav drove away with the respondent. The
incident consisted of one single event and there was no possibility of the witnesses' knowledge being
mixed up with their belief.
We find it impossible to endorse this part of the High Court's reasoning and are inclined to the view that the
respondent ultimately succeeded in establishing contact with Yadav. Whether the respondent succeeded in
achieving his ultimate object is beyond us to, say except that Yadav turned hostile in the Committing
Magistrate's court on February 21.

The High Court has also rejected the affidavit of Sarup Singh that on February 28, 1978, while he was
doing duty as an armed constable at the factory, he saw the respondent coming to the factory and
heard him assuring Yadav that he need not worry. The verification clause of the affidavit was again
thought to be defective. We are unable to agree with this part of the learned Judge's judgment for
reasons already indicated.

We are also unable to agree with the High Court that the complaint filed by Charan Singh on July 12 in
regard to the incident of July 5, 1977 and the complaint filed by A. K. Dangwal on July 9 in regard to
the incident of July 7, 1977 are "irrelevant" since the prosecution did not even oppose the grant of bail
to the respondent after the chargesheet was filed on July 14, 1977.
It is true that it is not possible to accept Shri Jethmalani's explanation of the inactivity on the part of
the prosecution even after receiving the two complaints showing that the respondent was trying to
tamper with the witnesses. Concessions of benevolence cannot readily be made in favour of the
prosecution. But it cannot be overlooked that Charan Singh did turn hostile, though that happened
after the, High Court gave its judgment on April 11. The respondent knows that the witness turned
hostile and significantly, though the witness refused to support the prosecution he made an important
admission that he Had submitted a written application or complaint to Inspector Ved Prakash on July
12, 1977 and that "whatever is mentioned in that application is correct".

That application, which is really a complaint, contains the most flagrant allegation of attempted
tampering with the witness by the respondent, through his driver Chattar Singh. Reference to this
incident is not in the nature of Additional evidence properly so called because the witness was
examined in the Sessions Court in the presence of the respondent and his advocates. They know what
the witness stated in his open evidence and what explanation he gave for making the complaint on July
12, 1977. The Sessions Court will no doubt assess its value but for our limited purpose, the episode is
difficult to dismiss as irrelevant.

Even excluding the last incident in regard to Charan Singh which is really first in point of time and though it
is corroborated by an entry in the General Diary, we are of the opinion that
(i) Yadav's complaint of the, 14th February,
(ii) Khedkar's complaint of the same date,
(iii) Yadav's admission in his evidence that he did make the written complaint inspite of the fact that he had
turned hostile (
(iv) the affidavits of Sat Pal Singh, Ganpat Singh and Digambar Das in regard to the incident of the 17th and
(v) the affidavit of Sarup Singh regarding the incident of February 28,

furnish satisfactory proof that the respondent has abused his liberty by attempting to, suborn the
prosecution witnesses. He has therefore forfeited his right to remain free.
Section 439(2) of the Code of Criminal Procedure confers jurisdiction on the High Court to Court of
Session to direct that any person who has been released on bail under Chapter XXXIII be arrested and
committed to custody.
The power to take back in custody an accused who has been enlarged on bail has to be exercised with
care and circumspection. But the power, though of an extraordinary nature, is meant to be exercised
in appropriate cases when, by a preponderance of probabilities, it is clear that the accused is
interfering with the course of justice by tampering with witnesses. Refusal to exercise that wholesome
power in such cases, few though they may be, will reduce it to a dead letter and will suffer the courts
to be silent spectators to the subversion of the judicial process. We might as well wind up the courts
and bolt their doors against all than permit a few to ensure that justice shall not be done.

The power to cancel bail was exercised by the Bombay High Court in Madhukar Purshottam Mondkar
v. Talab Haji Hussain [AIR 1958 Bom 406] where the accused was charged with a bailable offence. The
test adopted by that court was whether the material placed before the court was "such as to lead to
the conclusion that there is a strong prima facie case that if the accused were to be allowed to be at
large he would tamper with the prosecution witnesses and impede the course of justice". An appeal
preferred by the accused against the judgment of the Bombay High Court was dismissed by this Court.

In Gurcharan Singh v. State (Delhi Administration) [1978) 1 SCC 118, 128-129] while confirming the
order of the High Court cancelling the bail of the accused, this Court observed that the only question
which the court had to consider at that stage was whether "there was prima facie case made out, as
alleged, on the statements of the witnesses and on other materials", that "there was a likelihood of
the appellants tampering with the prosecution witnesses". It is by the application of this test that we
have come to the conclusion that the respondent's bail ought to be cancelled.

But avoidance of undue hardship or harassment is the quintessence of judicial process. Justice, at all
times and in all situations, has to be tempered by mercy, even as against persons who attempt to
tamper with its processes. The apprehension of the prosecution is that 'Maruti witnesses' are likely to
be won over. The instances discussed by us are also confined to the attempted tampering of Maruti
witnesses like Yadav and Charan Singh, though we have excluded Charan Singh's complaint from our
consideration.

Since the appellant's counsel has assured us that the prosecution will examine the Maruti witnesses
immediately and that their evidence will occupy no more than a month, it will be enough to limit the
cancellation of respondent's bail to that period. We hope and trust that no unfair advantage will be
taken of our order by stalling the proceedings or by asking for a stay on some pretext or the other. If
that is done, the arms of law shall be long enough.

Out of abundant caution, we reserve liberty to the State to apply to the High Court, if necessary, but only if
strictly necessary. We are hopeful that the State too will take our order in its true spirit.

In the result, we allow the appeal partly, set aside the judgment of the High Court dated April 11, cancel
the respondent's bail for a period of one month from today and direct that he be taken into custody.
Respondent will, in the normal course, be entitled to be released on fresh bail on the expiry of the
aforesaid period. The learned Sessions Judge will be at liberty to fix the amount and conditions of bail.
The order of anticipatory bail will stand modified to the extent indicated herein.
 Unit 5: Pre-Trial Proceedings (by or before Court of Judicial Magistrates and Sessions Court)

We will discuss pre-trial proceedings under the following heads:

A. Cognizance of Offences
Relevant Provisions of the Code: Sections 190 to 199 (Chapter XIV); Sections 200-204 (XV)
However, as per the syllabus we will dicuss in detail Section 190, Sections 191-194, Section 199 Of Chapter XIV & Sections
200-203 of Chapter XV
We will also discuss the stage of Issue of Process witht the help of relevant provisions under Chapter XVI (Sections 204 to
208)

B. Committal Proceedings

Relevant Provisions of the Code: Section 209 (including Sections 207 and 208) [Read section 209 with section 323 which is
supplementary to it]

C. Concept of 'Charge' under Criminal Porcedure and Rules Relating to Framing of Charge

Relevant Provisions of the Code: Sections 211 to 224 (Chapter XVII)

 A. Cognizance of Offences

Plain Meaning of Cognizance & 'Taking Cognizance':

The word ‘cognizance’ has not been defined under the Code.
Cognizance literally means knowledge or notice
In plain and dictionary meaning taking cognizance means 'taking note of', 'taking account of', 'to know about', 'to gain
knowledge about', 'awareness about certain things' etc.

Legal Meaning of the word Cognizance (or the expression 'Taking Cognizance of Offence'):
In law, the common understanding of the term 'cognizance' is: ‘taking judicial notice by a court of law, possessing
jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings
and determination of the cause or matter 'judicially'.

In other words, in law the expression taking cognizance of offence means, taking notice or becoming aware of the alleged
commission of offence.

Taking cognizance of offence means judicial notice by a court of law on a crime which, according to such court, has been
committed against the victim, to take further action if facts and circumstances so warrant.’

Thus, legal sense of taking judicial notice by a court of law or a Magistrate is altogether different from the view and idea a
layman has for it;

It is an established principle of law that cognizance is taken of the offence and not of the offender. Therefore, the
Magistrate will have to take cognizance of the offence first before he could proceed to conduct a trial.
 Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as
such applies his mind to the suspected commission of an offence for the purpose of proceeding to take subsequent steps
towards inquiry or trial. [Chief Justice Hiralal J Kania in R.R. Chari v. The State of Uttar Pradesh (1951)]

Reiterated in Smt. Mona Panwar v. The Hon'ble High Court of Judicature At Allahabad through its Registrar and others
(Feb.2, 2011 SC) wherein Justice Panchal observed, “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.”

There may be circumstances where the Magistrate applies his mind to the facts placed before him, not with an intention
to proceed with any kind of inquiry or trial and in such circumstances it cannot be said that he has taken cognizance of
the offence.
For example, examination of a criminal complaint for referring a case to the police for investigation under section 156(3) of
the Cr.P.C., issuing orders for search of any premises etc.

The subject of taking cognizance of offences is dealt under Chapter XIV of the Code in which:

Sections 190 to 194 deal with taking cognizance of offences by the different courts in different situations.

Sections 195 to 199 deal with bar on taking cognizance of certain offences except under certain circumstances.
Q. Who is empowered to take cognizance of offences under the Code?

Under the provisions of the Code, cognizance may be taken by:

I. Judicial Magistrate which includes:
(i) Judicial Magistrate First Class [Section 190 (1)]
(ii) J.M. Second Class empowered by Chief Judicial Magistrate [Section 190 (1) r/w (2)]
(iii) Chief Judicial Magistrate [Section 192 (1)] - Also every CJM is a JM first class therefore one may read here Section 190(1)
as well.

II. Court of Session [under Section 199 (2) or under any special laws]
 I. Cognizance of Offence by Judicial Magistrate

Modes of Taking Cognizance of Offences by Judical Magistrates: [Section 190]

According to Section 190(1) of the Cr.P.C, any Magistrate of the first class and any Magistrate of the second class specially
empowered in this behalf by the Chief Judicial Magistrate under sub-section (2) may take cognizance of any offence -

(a) upon receiving a complaint of the facts which constitute such offence;
(b) upon a police report of such fact
(c) upon information received from any person other than a police officer, or upon his own knowledge that such offence
has been committed

Lets discuss each mode of taking cognizance in brief detail:

(a) Magistrate taking Cognizance of Offence upon a Criminal Complaint [Sec. 190 (1)(a)]

The word Complaint is defined under section 2(d) of the Code as:
“Complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code,
that some person, whether known or unknown, has committed an offence, but does not include a police report.

Explanation: A report made by a police officer in a case which discloses, after investigation, the commission of a
non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be
deemed to be the complainant;
Issue: When can it be said that the Magistrate has taken cognizance upon receiving a complaint?
The answer to the question question whether the Magistrate has taken cognizance of the offence depends upon the steps
taken afterwards.
If the Magistrate applies his mind to proceed with the complaint under sections 200 to 203, he must be said to have taken
cognizance; whereas if he applies his mind to the complaint and proceed under section 156(3) or section 93, he cannot be said
to have taken cognizance of the offence.

This position was eaxplained by Supreme Court in Tula Ram v. Kishore Singh (1977) 4 SCC 459, wherein Hon’ble Justice
Syed Murtaza Fazal Ali observed: “There is no special charm or any magical formula in the expression ‘taking cognizance’
which merely means judicial application of the mind of the Magistrate to the facts mentioned in the complaint with a view
to taking further action. What section 190 contemplates is that the Magistrate takes cognizance once he makes himself
fully conscious and aware of the allegations made in the complaint and decides to examine or test the validity of the said
allegations. Therefore, in complaint cases if the Magistrate does not proceed as per sections 200, 202 or 203 and has
ordered investigation under section 156(3), or issues a search warrant under section 93 for the purpose of investigation, he
cannot be said to have taken cognizance of the offence.”

In Devarpalli Lakshminaryana Reddy & Ors. v. V. Narayana Reddy & Ors. (May 4, 1976) Justice Sarkaria observed:
“Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under
Section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence
within the meaning of section 190(1) (a). If, instead of proceeding under Chapter XV, he has in the judicial exercise of his
discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering
investigation by the police under section 156(3), he cannot be said to have taken cognizance of any offence.”
Procedure followed by Magistrate if he/she takes cognizance upon Complaint and Proceeds as per Sections 200 to 203
(Chapter XV):

Section 200: Examination of Complainant

Judicial proceeding under section 200 is the nature of ‘Inquiry’.
Section 200 comes into play when Magistrate has taken cognizance on complaint under section 190(1)(a) but before issue
of process under section 204 he is bound to follow procedure under section 200 so that frivolous and vexatious complaint
can be rejected and accused may be saved from unnecessary summons and warrants as the case may be.

Section 200 may be divided into two parts namely:

(i) Mandatory Examination (on oath) of Complainant and Witnesses if any (General Rule): A Magistrate taking cognizance of
an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of
such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the
Magistrate.
Q. What is the relevance of doing examination on Oath u/s 200 of the Code?

(ii) Exceptions to the General Rule of Mandatory Examination (Proviso to Section 200): when the complaint is made in
writing, the Magistrate need not examine the complainant and the witnesses:
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192

Note: if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and
the witnesses, the latter Magistrate need not re-examine them.
After examination of complainant & witnesses if any u/s 200, the Magistrate has three options:

Option 1: To Conduct Personal Inquiry or Direct Investigation: According to section 202 the Court may (and shall if accused
is residing at a place beyond the area in which he exercises his jurisdiction,) either conduct personal inquiry or direct for
investigation.
Cases in which Magistrate cannot direct for investigation:
(i) Offence is exclusively triable by Court of Session, and
(ii) before examination of complainant and the witnesses present (if any) under section 200 except where the complaint is
made by a Court i.e. Judge/ Magistrate is the Complainnat.

Option 2: Dismiss the Complaint: According to Section 203 If, after considering the statements on oath (if any) of the
complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is
of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall
briefly record his reasons for so doing

Option 3: Issue of process as per Section 204.

Difference between an Order of Magistrate for investigation under Section 156(3) and an Order directing Investigation
under Section 202:
Section 156(3) occurs in Chapter XII, under the caption: ‘Information to the Police and their powers to investigate’;
while Section 202 is in Chapter XV which bears the heading ‘complaints to Magistrates’.

The power to order police investigation under Section 156 (3) is different from the power to direct investigation
conferred by Section 202 (1). The two operate in distinct spheres at different stages. The first is exercisable at the pre
cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case.

'That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156
(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a) . But if he once
takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to
the pre-cognizance stage and avail of Section 156 (3). It may be noted further that an order made under Section 156 (3),
is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation
under Section 156(1). Such an investigation embraces the entire continuous proces which begins with the collection of
evidence under Section 156 and ends with a report or charge sheet under Section 173.

On the other hand Section 202 comes in at a stage when some evidence has been collected by the Magistrate in
proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the
prescribed procedure. In such a situation, the Magistrate is empowered under Section 202 to direct within the limits
circumscribed by that section, an investigation ‘for the purpose of deciding whether or not here is sufficient ground for
proceeding. Thus the object of an investigation under Section 202 is not to initiate a fresh case on police report but to
assist the Magistrate in completing proceedings already instituted upon a complaint before him
[See, Devarpalli Lakshminaryana Reddy & Ors. v. V. Narayana Reddy & Ors. (1976)]
 Section 156(3) Section 202(1)

1. Under Chapter XII 1. Under Chapter XV

2. Wider in Scope 2. Narrower in Scope

3. Here the purpose of investigation is to embrace the 3. Here purpose of investigation is limited. It is
entire continuous proces which begins with the conducted whether or not there is sufficient ground for
collection of evidence and ends with a report or charge issuing of process.
sheet under Section 173.

4. It is complete investigation. 4. It is basically in the nature of inquiry.

5. Order under this provision is made in pre-cognizance 5. Order under this provision is made during post
stage cognizance stage.
6. Order under this provision confined only to 6. Here order for investigation can be passed to
investigation of cognizable offence. investigate any types of offence. Because complaint can
be made regarding cognizable or non-cognizable
offence.
7. No such bar on the power of Magistrate to Order 7. In some cases order for investigation can not be
investigation. passed. For example, if offence exclusively triable by
Court of Session
Issue: Whether a second complaint can be entertained by a Magistrate who or whose predecessor had, on the same or similar
allegation, dismissed a previous complaint u/s 203, and if so in what circumstances should such a second complaint be
entertained.
Answer: An order of dismissal u/s 203 of the Code, is, however, no bar to the entertainment of a second complaint on the
same facts but it will be entertained only in exceptional circumstances, e.g, where the previous order was passed on an
incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or
where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings
have been adduced. [Justice S.K. Das in Pramath Nath Talukdar v. Saroj Ranjan Sarkar (SC, 1961)]

Procedure by Magistrate not competent to take cognizance of the case: [Section 201]
If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall -
(a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect;
(b) if the complaint is not in writing, direct the complainant to the proper Cour
(b) Magistrate taking Cognizance of Offence upon Police Report [Sec. 190 (1)(b)]:
The Magistrate may also take cognizance of an offence under section 190(1)(b) on receiving the police report.

Meaning of Police Report: According to section 2(r) “police report” means a report forwarded by a police officer to a
Magistrate under sub-section (2) of section 173

If he is of the opinion that prima facie case is made out, he may straightaway issue a process (Section 204).
The Magistrate is not bound by the conclusion reached by the police and it is open to him to take cognizance on the basis
of the police report, even though the police might have recommended in their report that no case is made out.

Note: Cognizance is taken of the offence and not of the offender. Therefore, the power of Magistrate to take cognizance
includes - those persons who have not been arrayed by the police but there is sufficient evidence to make out their
involvement in the alleged offence.

Q. Do you think Magistrate bound to take cognizance of an offence on the basis of final report under Section 173(2) of
Cr.P.C.?
Ans: Section 190 (1) uses the words “any Magistrate … may take cognizance ….”. So Magistrate is not bound to take
cognizance on the basis of police report and by using section 156(3), he may give direction for proper investigation.
There were conflicting opinion of Supreme Court on the point regarding meaning of “… may take cognizance ….”.
Supreme Court in some cases held that word ‘may’ denotes discretionary power of Supreme Court.
But in some cases the Court took just contrary opinion and said that ‘may’ should be read as ‘must’, otherwise it will be
violation of Article 14 of the Constitution of India.

Finally, Law Commission of India in its 41st Report recommended that ‘may’ denotes discretionary power of Court but this
(c) Magistrate taking Cognizance upon Information Received from any Person other than a Police Officer or suo mott [Sec.
190 (1)(c)]:

According to Section 190(1)(c) of the Code, Magistrate may take cognizance upon information received from any person
other than a police officer, or upon his own knowledge, that such offence has been committed.

Object of Section 190(1)(c): To enable a Magistarte to see that justice is vindicated notwithstanding that the persons
individuallly aggrieved are uwilling or unable to lodge an FIR or file a complaint.

The proper use of power conferred under clause (c) of section 190(1) is to proceed under it when the Magistrate has
reason to believe the commission of a crime, but is unable to proceed in the ordinary way owing to absence of any
complaint or police report about it.

Legel Consequence of Cognizance taken by a Magistrate not Empowered:

If any Magistrate not empowered to take cognizance of an offence under under clauses (a) and (b) of section 190(1) does
erroneously in good faith takes cognizance of an offence under any such clause his proceedings shall not be set aside
merely on the ground of his not being so empowered. [Read Section 460 (e)]

If a Magistrate who is not empowered to take cognizance of an offence takes cognizance under clause (c) of section
190(1), his proceedings shall be void. [Section 461(k)]
Lets discuss Section 191 and 192 of the Code:

Section 191 takes care of the situations where the Magistrate himself is a complainant. This provision removes any doubt as
to the scope for prejudice or malice on the part of the Magistrate by allowing the Chief Judicial Magistrate to transfer the
case to any other Magistrate. Section 191 reads thus:
When a Magistrate takes cognizance of an offence under clause (c) of sub-section (1) of section 190, the accused shall,
before any evidence is taken, be informed that he is entitled to have the case inquired into or tried by another Magistrate,
and if the accused or any of the accused, if there be more than one, objects to further proceedings before the Magistrate
taking cognizance, the case shall be transferred to such other Magistrate as may be specified by the Chief Judicial Magistrate
in this behalf.

Section 192: Making over of cases to Magistrates.—(1) Any Chief Judicial Magistrate may, after taking cognizance of an
offence, make over the case for inquiry or trial to any competent Magistrate subordinate to him.

(2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of
an offence, make over the case for inquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate
may, by general or special order, specify, and thereupon such Magistrate may hold the inquiry or trial.
 II. Cognizance of offence by Sessions Court

Section 193 of the Code provides for cognizance of offence by Court of Session which reads thus:
“Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall
take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate
under this Code.”

On a plain reading of the aforesaid provision, it is clear that no Court of Session can take cognizance of any offence as a
court of original jurisdiction except as otherwise expressly provided by the Code or any other law for the time being in
force or unless the case has been committed to it by a Magistrate.

The idea is that the Court of Session is not required to perform all the preliminary formalities under sections 207-209 of
the Code which the Magistrate have to do before the case is committed to the Court of Session.

Note: the Court of Session may take cognizance without commitment by the Magistrate if so expressly provided by the Code
or by any other law for the time being in force.
For example, Under section 199(2), Court of Session may take cognizance as a court of original jurisdiction
Q. What is the validity of a trial by Sessions Court where the cognizance was directly taken by the Sessions Judge without the
case being committed to it by the Magistrate as required under section 193 of the Code?
Ans: The trial of any case, though not committed, may not be vitiated inasmuch as there is no failure of justice or no
prejudice is caused to the accused person. In other words, where Sessions Court has taken cognizance without the
committal proceeding it shall not affect the trial and subsequent conviction unless it is proved that the same gives rise to
failure of justice. [See, Rattiram v. State of M.P., (2012) 4 SCC 516]

Q. Whether the Sessions Court can invoke powers under section 319 of the Code at the stage of section 193?
Ans: This question was finally answered affirmatively by the Constitutional Bench in Dharam Pal & Others v. State of
Haryana & Another, (2014) 3 SCC 306. The Bench reiterated the ratio of Kishun Singh v. State of Bihar, (1993) 2 SCC 16, and
held thus: “the powers under section 319 of the Code can be invoked at the committal stage. On committal, the Sessions
Court shall have all the powers under section 209. Hence, even without recording evidence, upon committal under section
209, the Session Judge may summon those persons not named as accused by the police to stand trial along with those
already named therein.”

Power under section 319 can be exercised at any time after the charge sheet is filed and before the pronouncement of
the judgment, except during the stage of section 207/208, committal etc.The steps under section 207/208 and
committal cannot be termed as judicial steps which require only application of mind rather than application of judicial
mind. The compliance of section 207 and committal proceeding are administrative work. Therefore, in a case triable by
Sessions Court, the Magistrate is not allowed to apply his mind to the merits of the case and determine as to whether
any accused needs to be added or removed to face trial before the Sessions Court. [ See, Hardeep Singh v. State of
Punjab, (2014) 3 SCC 92]
Period of Limitation for Taking Cognizance of Certain Offences: [Chapter XXXVI (Section 467 to 473]
A Magistrate can take cognizance of offence only within the time limits prescribed by law for this purpose as per sections
467 to 473 of the Code.
Bar to Taking Cognizance after Lapse of the Period of Limitation [Section 468]
No Court shall take cognizance of an offence of the category specified in sub-section (2),after the expiry of the period of
limitation. [Sec. 468(1)]
The period of limitation shall be [Sec. 468(2)]
(a) 6 months, if the offence is punishable with fine only;
(b) 1 year, if the offence is punishable with imprisonment for a term not exceeding 1 year;
(c) 3 years, if the offence is punishable with imprisonment for a term exceeding 1 year but not exceeding 3 years.
For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with
reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.

Commencement of the period of limitation [Section 469]: The period of limitation, shall commence,
(a) on the date of the offence; or
(b) where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the
first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier; or
(c) where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to
the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier.
Note 1: In computing the said period, the day from which such period is to be computed shall be excluded.
Note 2: Where the period of limitation expires on a day when the Court is closed, the Court may take cognizance on the day
on which the Court reopens. [Section 471]
Note 3: In the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during
which the offence continues. [Section 472]
 Limitation/Bar on taking Cognizance of certain Offences except under Certain Circumstances
Sections 195 to 199 deal with bar on taking cognizance of certain offences except under certain circumstances.
Sections 195 to 199 are exceptions to the general rule and they impose conditions on taking cognizance of certain
offences by the court. It is only on fulfilling some conditions the court can take cognizance of the offences.

Lets do an analysis of Sections 195-199 of the Code:

(A) Prosecution for Contempt of Lawful Authority of Public Servants [Section 195 (1)(a)]: No Court shall take cognizance—
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, (45 of 1860), or
(ii) of any abetment of, or attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence,
except on the complaint in writing of the public servant concerned or of some other public servant to whom he is
administratively subordinate

(B) Prosecution for Offences against Public Justice & for Offences Relating to Documents given in Evidence [195(1)(b)]:
No court shall take cognizance -
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections
193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been
committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code,
when such offence is alleged to have been committed in respect of a document produced or given in evidence in a
proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or
sub-clause (ii),
except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in
this behalf, or of some other Court to which that Court is subordinate.
(C) A witness or any other person (threatened to give false evidence) may file a complaint in relation to an offence under
section 195A of IPC. [Read Section 195A of CrPC inserted by the Code of Criminal Procedure (Amendment) Act 2008]

(D) Prosecution for Offences against the State and other Related Offences [ Section 196]
Section 196(1): No Court shall take cognizance of—
(a) any offence punishable under Chapter VI (Offences against State) or under section 153A, section 295A or sub-section (1)
of section 505 of the Indian Penal Code (45 of 1860), or
(b) a criminal conspiracy to commit such offence, or
(c) any such abetment, as is described in section 108A of the Indian Penal Code (45 of 1860),
except with the previous sanction of the Central Government or of the State Government

Section 196(1A): No Court shall take cognizance of—

(a) any offence punishable under section 153B or sub-section (2) or sub-section (3) of section 505 of the Indian Penal Code
(45 of 1860), or
(b) a criminal conspiracy to commit such offence,
except with the previous sanction of the Central Government or of the State Government or of the District Magistrate.

Note: The object of the restrictive provisions contained under Section 196 (1) & (2) is to prevent unauthorised persons from
intruding in matters of State by instituting prosecutions and to secure that such prosecutions, for reasons of policy, shall only
be instituted under the authority of government.

Sanction to prosecute under Section 196 is a condition precedent for taking cognizance of any such offence. Before
according sanction the concerned government may order a preliminary investigation by a police officer not below the rank
of Inspector.
(E) Prosecution for the Offence of Criminal Conspiracy [Section 196(2)]: No Court shall take cognizance of the offence of
any criminal conspiracy punishable under section 120B of the Indian Penal Code (45 of 1860), other than a criminal
conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two
years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the
proceedings:
Provided that where the criminal conspiracy is one to which the provisions of section 195 apply, no such consent shall be
necessary.
Note: In case of conspiracies which are of petty nature, it was thought by the legislature that private complaints should not
be freely allowed and prosecutions should be instituted only when they are necessary in the public interest.

(F) Prosecuton of Judges and Public Servants [Section 197 (1)]

Section 197(1): When any person who is or was a Judge or Magistrate or a public servant not removable from his office save
by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or
purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous
sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014)]—
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence
employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence
employed, in connection with the affairs of a State, of the State Government:

Proviso to 197(1): Where the alleged offence was committed by a person referred to in clause (b) during the period while a
Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for
the expression “State Government” occurring therein, the expression “Central Government” were substituted.]
Explanation to Section 197(1): For the removal of doubts it is hereby declared that no sanction shall be required in case of a
public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section
354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, section 376A, section 376C, section
376D or section 509 of the Indian Penal Code (45 of 1860).

Note: The Central Government or the State Government, as the case may be, may determine the person by whom, the
manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be
conducted, and may specify the Court before which the trial is to be held. [Section 197(4)]

(G) Prosecution of Members of Armed Forces [Section 197(2)]

No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the
Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central
Government.

Note: The object of retrictive rule contained under Section 197(1)&(2) is to enable the judges, public servants and members of
armed forces performing onerous and responsible functions to act fearlessly by protecting them from false, vexatious and
malafide prosecutions. In other words, the justification for the protection provided under this provision is the public interest
in seeing that official acts do not lead to needless o vexatious prosecutions.
(H) Prosecution for Offences against Marriage [Section 198]
Section 198(1): No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code
except upon a complaint made by some person aggrieved by the offence.

Provisos to Section 198(1):

(a) where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to
make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in
public, some other person may, with the leave of the Court, make a complaint on his or her behalf;
(b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are
certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in
person, some other person authorised by the husband in accordance with the provisions of sub-section (4) may make a
complaint on his behalf;
(c) where the person aggrieved by an offence punishable under section 494 or section 495 of IPC, is the wife, complaint may
be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister,
or, with the leave of the Court, by any other person related to her by blood, marriage or adoption.

Note: For the purposes of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved
by any offence punishable under section 497 [This section has been declared unconstitutional by Supreme Court] or section
498 of the said Code. [Section 198(2)]
Proviso to Section 198(2): In the absence of the husband, some person who had care of the woman on his behalf at the time
when such offence was committed may, with the leave of the Court, make a complaint on his behalf.

Note: The object of section 198(1) is to prevent strangers from interfering in family life when the aggrived family members
themselves are unwilling to agitate against the alleged wrong.
(I) Prosecution of Husband for Rape:
No court shall take cognizance of an offence under Section 376 of IPC, where such offence consists of sexual intercourse
by a man with his own wife, the wife being under 18 years of age, if more than one year has elapsed from the date of the
commission of offence. [Section 198(6)]

No Court shall take cognizance of an offence punishable under section 376B of IPC where the persons are in a marital
relationship, except upon prima facie satisfaction of the facts which constitute the offence upon a complaint having been
filed or made by the wife against the husband. [Section 198-B]

(J) Prosecution of Offences under Section 498-A (Cruelty) of the Indian Penal Code [Section 198-A]

No Court shall take cognizance of an offence punishable under section 498A of IPC except upon a police report of facts
which constitute such offence or upon a complaint made by the person aggrieved by the offence or by her father, mother,
brother, sister or by her father’s or mother’s brother or sister or, with the leave of the Court, by any other person related to
her by blood, marriage or adoption
(K) Prosecution for Defamation [Section 199]

No court shall take cognizance of an offence punishable under Chapter XXI of the IPC except upon a complaint made by
some person aggrieved by the offence. [Section 199(1)]

Note: Section 199 has been held to be constitutionally valid in Subramanian Swamy v Union of India, (2016) 7 SCC 221.
The offences cntained in Chapter XXI of the IPC relate to - defamation, printing or engraving of defamatory matter, sale of
printed substances containing defamatory matter.

Exceptions to the Above Rule:

where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to
make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear
in public, some other person may, with the leave of the Court, make a complaint on his or her behalf. [Proviso to Section
199(1)]

Section 199(2): When any offence falling under Chapter XXI of IPC is alleged to have been committed against a person
who, at the time of such commission, is the President of India, the Vice-President of India, the Governor of a State, the
Administrator of a Union territory or a Minister of the Union or of a State or of a Union territory, or any other public
servant employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of his
public functions

a Court of Session may take cognizance of such offence, without the case being committed to it,

upon a complaint in writing made by the Public Prosecutor

Object of Special Rule under Section 199(2): To enble the government to step into to maintain confidence in the purity of
administration when high dignitaries and other public servants are wrongly defamed.

Note: Every complaint referred to in sub-section (2) shall set forth the facts which constitute the offence alleged, the nature
of such offence and such other particulars as are reasonably sufficient to give notice to the accused of the offence alleged to
have been committed by him.[Section 199(3)]

Note: No complaint under sub-section (2) shall be made by the Public Prosecutor except with the previous sanction—
(a) of the State Government, in the case of a person who is or has been the Governor of that State or a Minister of that
Government;

(b) of the State Government, in the case of any other public servant employed in connection with the affairs of the State;

(c) of the Central Government, in any other case. [Section 199(4)]

No Court of Session shall take cognizance of an offence under sub-section (2) unless the complaint is made within six
months from the date on which the offence is alleged to have been committed. [Section 199(5)]

The provisio empowering the Public Prosecutor to make a complaint as above, shall not affect the right of the person
against whom the offence is alleged to have been committed to make a complaint in respect of that offence before a
Magistrate having jurisdiction, or the power of such Magistrate to take cognizance of the offence upon such complaint.
[Section 199(6)]
 Proceedings after Cognizance is Taken by the Magistrate
Sections 204 to 208 (Chapter XVI) deal with the subsequent proceedings that would follow after cognizance is
taken by the Magistrate as per Section 190(1).

Issue of Process [Section 204]:

Once the cognizance is taken by the Magistrate, he issues process for appearance of the accused before him.
Section 204 is source of such power of the Magistrate which deals with issue of process in summons and warrant
cases. This section reads:
Issue of Process—(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground
for proceeding, and the case appears to be—
(a) a summons-case, he shall issue his summons for the attendance of the accused, or
(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought
or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate
having jurisdiction.

(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the
prosecution witnesses has been filed.

(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under
sub-section (1) shall be accompanied by a copy of such complaint.

(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be
issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss
the complaint.

(5) Nothing in this section shall be deemed to affect the provisions of section 87.
Note: If circumstance demands, the Magistrate issuing summons may dispense with the personal attendance of
the accused and may permit him to appear by his pleader. [Section 205]

Note 2: Generally in case of petty offences the Magistrate must issue summons to the accused to appear in
person or through his pleader but in limited cases the accused may be given exemption from personal attendance
only for the reasons recorded in writing by the Magistrate. [Read Section 206 of the Code]

Meaning of Petty Offences: For the purpose of Section 206 petty offence means any offence punishable only
with fine not exceeding 1000 rupees, but does not include any offence so punishable under the Motor Vehicles Act,
1939 (4 of 1939), or under any other law which provides for convicting the accused person in his absence on a plea
of guilty.
▪ When the accused appears before the court or when the accused is brought before the court on issuance of
process the first duty of the Magistrate is to furnish the copies of all the documents relied upon by the
prosecution as contemplated under section 207 of the Cr.P.C in cases instituted on police report or section 208
of the Cr.P.C. in cases instituted otherwise than on police report.

Supply to the accused of copy of Police report and Other Documents: [Section 207]
In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish
to the accused, free of cost, a copy of each of the following:—
(i) the police report/chargesheet;
(ii) the first information report (FIR) recorded under section 154;
(iii) the statements recorded under sub-section (3) of section 161 of all persons whom the prosecution proposes
to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been
made by the police officer under sub-section (6) of section 173;
(iv) the confessions and statements, if any, recorded under section 164;
(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under
sub-section (5) of section 173:
Note: The Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and
considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or
of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused [Proviso 1 to Section
207]

Note 2: If the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of
furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or
through pleader in Court.[Proviso 2 of Section 207]
 Section 208 of the Cr.P.C describes the copies of such documents which are to be furnished to the accused in
cases instituted otherwise than on a police report and which are exclusively triable by the Court of Sessions.
The court under this provision has to furnish the copies of the statements recorded under section 200 or 202 of
the Cr.P.C., statements or confessions if any recorded under sections 161 and 164 of the Cr.P.C. and other
relevant documents. This provision reads thus:
208. Supply of copies of statements and documents to accused in other cases triable by Court of Session:
Where, in a case instituted otherwise than on a police report [190(1)a) or (c)], it appears to the Magistrate
issuing process under section 204 that the offence is triable exclusively by the Court of Session, the Magistrate
shall without delay furnish to the accused, free of cost, a copy of each of the following:
(i) the statements recorded under section 200 or section 202, of all persons examined by the Magistrate;
(ii) the statements and confessions, if any, recorded under section 161 or section 164;
(iii) any documents produced before the Magistrate on which the prosecution proposes to rely:

Note: If the Magistrate is satisfied that any such document is voluminous, he shall, instead of furnishing the
accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in
Court. [Proviso to Sec.208]

Points to Remember:
Interestingly there is no provision in the Cr.P.C. which obligates the Magistrate to furnish the copies of the
documents instituted otherwise than on a police report and which are not triable by the Court of Sessions.
Though it is provided that the copies are to be furnished by the Magistrate, the statute did not mention as to
who has to file the copies. In some of the States, the High Courts have established a separate section in every
criminal court to copy the documents while in some other States the police are filing the copies along with the
charge sheet/challan. It is submitted that uniformity in this process by choosing the best practice is needed
Committal Proceedings - Committing the cases to the Court of Session [Section 209]

Under the Cr.P.C. the courts of Magistrates and Sessions Courts function as trial courts, First Schedule annexed
to the Cr.P.C. mentions whether a particular offence is triable by the Magistrate or the Court of Sessions. If the
offence is exclusively triable by the Court of Sessions, the Magistrate has to commit the case to the Court of
Sessions under Section 209 of the Cr.P.C. This Section reads:

209. Commitment of case to Court of Session when offence is triable exclusively by it: When in a case
instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it
appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall
(a) commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to
the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody
until such commitment has been made;
(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the
conclusion of, the trial;
(c) send to that Court the record of the case and the documents and articles, if any, which are to be
produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.

Note: The Magistrate at any stage of Inquiry or trial can commit the case to the Court of Session though initially it
was considered as the case triable by the Magistrate and later it appears to him that it ought to be tried by the
Court of Session. [Read, section 323 of the Code]
Procedure to be followed when there is a complaint case and police investigation in respect of the same
offence [Section 210]

When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is
made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by
the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him,
the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the
police officer conducting the investigation. [Sub-section (1) of Section 210]

If a report is made by the investigating police officer under section 173 and on such report cognizance of any
offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate
shall inquire into or try together the complaint case and the case arising out of the police report as if both the
cases were instituted on a police report. [Sub-section (2) of Section 210]

If the police report does not relate to any accused in the complaint case or if the Magistrate does not take
cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by
him, in accordance with the provisions of this Code. [Sub-section (3) of Section 210]
 Legal Concept of Charge and Framing of Charge
One basic requirement of a fair trial in criminal procedure is to give precise information to the accused as to the accusation
against him as it helps the accused in the preparation of his defence.

In all trials under the Code, the accused is informed of the accusation in the beginning itself. In case of serious offences
the Code requires that the accusations are to be formulated and reduced to writing with great precision and clarity. This
‘charge’ is then to be read and explained to the accused person.

Meaning of Charge:
CrPC does not define charge precisely and clearly, but Section 2(b) of the Code says that “Charge includes any head of
charge when the charge contains more heads than one”
A ‘charge’ simply means an accusation.
“A charge is a precise formulation of a specific accusation made against a person of an offence alleged to have been
committed by him.” [As defined by Justice K Subbarao in Birichh Bhuian and Others v. State of Bihar (1962)].

Q. What do you understand by Charge under the Code? What is the purpose of framing charge?
Ans: A charge is a written notice of the precise and specific accusation against the accused person on which the trial is
conducted. It is the first notice to the person of the matter whereof he is accused and it must convey to him with sufficient
clarity and certainty that the prosecution intends to prove against him and of which, he would have to clear himself.

Charge serves the purpose of notice or intimation to the accused, drawn up according to specific language of law, giving
clear and unambiguous or precise notice of the nature of accusation that the accused is called upon to meet in the
course of trial. In other words, The object of framing charge is to enable the accused to know the case he will have to
meet and to be ready before evidence is given.
Q. Is framing of Charge necessary in all kinds of Trial under the Code?

Ans: In Session Trial and Warrant Trial, framing of charge is mandatory. While in cases of Summons and Summary Trial,
framing of charges is not necessary. In these Trials framing of charge is discretionary power of Magistrate.

Lets explain it with the help of the provisions of the Code:

In a Trial before Court of Session - According to Section 228, Court of Session shall frame in writing a charge against the
accused.

In Trial of Warrant Cases by Magistrate of Cases instituted on a Police Report - According to Section 240 Magistrate shall
frame in writing a charge against the accused.

In Trial of Warrant Cases by Magistrate of Cases instituted otherwise than on a Police Report - According to Section
246(1) Magistrate shall frame in writing a charge against the accused.

In Trial of Summons Cases by Magistrate - According to Section 251, it shall not be necessary to frame a formal charge.

In Summary Trial - According to Section 262(1), trial of summons case and summary trial are same except with certain
exceptional cases. Therefore, here also it shall not be necessary to frame a formal charge.
Form and Content of Charge:
Sections 211 to 214 deal with form and content of charge and mentioning of particulars as to time and place of the alleged
offence in the charge.
Section 211 of the Code deals with contents of Charge and states that:
(1) Every charge under this Code shall state the offence with which the accused is charged.

(2) If the law which creates the offence gives it any specific name, the offence may be described in the charge by that name
only.

(3) If the law which creates the offence does not give it any specific name so much of the definition of the offence must be
stated as to give the accused notice of the matter with which he is charge.

(4) The law and section of the law against which the offence is said to have been committed shall be mentioned in the
charge.
(5) The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute
the offence charged was fulfilled in the particular case.
(6) The charge shall be written in the language of the Court. [See Section 272 of the Code]

(7) If the accused, having been previously convicted of any offence, is liable, by reason of such previous conviction, to
enhanced punishment, or to punishment of a different kind, for a subsequent offence, and it is intended to prove such
previous conviction for the purpose of affecting the punishment which the Court may think fit to award for the subsequent
offence, the fact date and place of the previous, conviction shall be stated in the charge; and if such statement has been
omitted, the Court may add it at any time before sentence is passed.
Illustrations on Section 211:
(a) A is charged with the murder of B. This is equivalent to a statement that A's act fell within the definition of murder given in sections 299 &
300 of the Indian Penal Code (45 of 1860); that it did not fall within any of the general exceptions of the said Code; and that it did not fall
within any of the five exceptions to section 300, or that, if it did fall within Exception 1, one or other of the three provisos to that exception
applied to it.

(b) A is charged under section 326 of the Indian Penal Code (45 of 1860), with voluntarily causing grievous hurt to B by means of an instrument
for shooting. This is equivalent to a statement that the case was not provided for by section 335 of the said Code, and that the general
exceptions did not apply to it.

(c) A is accused of murder, cheating, theft, extortion, adultery or criminal intimidation, or using a false property-mark. The charge may state
that A committed murder, or cheating, or theft, or extortion, or adultery, or criminal intimidation, or that he used a false property-mark,
without reference to the definitions, of those crimes contained in the Indian Penal Code (45 of 1860); but the sections under which the
offence is punishable must, in each instance be referred to in the charge.

(d) A is charged under section 184 of the Indian Penal Code (45 of 1860) with intentionally obstructing a sale of property offered for sale by the
lawful authority of a public servant. The charge should be in those words

Section 212 provides for the particulars as to time and place of the alleged offence in the charge and reads:
The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the
thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is
charged. [Sub-section (1)]
When the accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, it shall be
sufficient to specify the gross sum or, as the case may be, describe the movable property in respect of which the offence is alleged to have
been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or
exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 219. [Sub-section (2)]
When manner of committing offence must be stated in Charge?
In cases where the content of charge does not give the accused sufficient notice of the matter with which he is charged,
the charge shall also contain such particulars of the manner in which the alleged offence was committed as will be
sufficient for the accused to understand the accusation. [Section 213 - Supportive Content of Charge]

Illustrations:
(a) A is accused of the theft of a certain article at a certain time and place. The charge need not set out the manner in which the theft was
effected.

(b) A is accused of cheating B at a given time and place. The charge must set out the manner in which A cheated B.

(c) A is accused of giving false evidence at a given time and place. The charge must set out that portion of the evidence given by A which is
alleged to be false.

(d) A is accused of obstructing B, a public servant, in the discharge of his public functions at a given time and place. The charge must set out
the manner in which A obstructed B in the discharge of his functions.

(e) A is accused of the murder of B at a given time and place. The charge need not state the manner in which A murdered B.

(f) A is accused of disobeying a direction of the law with intent to save B from punishment. The charge must set out the disobedience
charged and the law infringed.

Note: In every charge words used in describing an offence shall be deemed to have been used in the sense attached to them
by the law under which such offence is punishable. [Section 214]
 FORM No. 32
CHARGES
(See sections 211,212 and 213)
I. CHARGES WITH ONE HEAD
Charge under section 121
I,………………………. (name and office of Magistrate, etc.), hereby chargeyou…………………. (name of accused person) as follows:-

That you, on or about the……….. day of……… , at (time)……… , waged war against the Government of India and thereby committed an
offence punishable under section 121 of the Indian Penal Code, and within the cognizance of this Court.
And I hereby direct that you be tried by this Court on the said charge.
Signature and seal of the Magistrate

II. CHARGES WITH TWO OR MORE HEADS

Charges under sections 302 and 304

I,………………………. (name and office of Magistrate/Judge, etc.), hereby charge you…………………. (name of accused person) as follows:-

First- That you, on or about the……….. day of……… , at (time)……… ,committed murder by causing the death of ___, and thereby committed
an offence punishable under section 302 of the Indian Penal Code, and within the cognizance of the Court of Session.

Secondly -That you, on or about the……….. day of……… , at (time)……… , by causing the death of ____, committed culpable homicide not
amounting to murder, and thereby committed an offence punishable under section 304 of the Indian Penal Code, and within the cognizance
of the Court of Session.
And I hereby direct that you be tried by the said Court on the said charge.
Signature and seal of the Magistrate
Q. What is the legal effect of errors in framing of charge?

Ans: According to Section 215 of the Code, no error in stating either the offence or the particulars required to be stated in
the charge, and
No omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless
the accused was in fact misled by such error or omission, and
it has occasioned a failure of justice.

Note: According to Section 464 of the Code, no finding, sentence or order by a Court of competent jurisdiction shall be
deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in
the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a
failure of justice has in fact been occasioned thereby. [Section 464 validates the order of sentence of any court passed in
lack of framing of charge.]

Q. What is the difference, if any between Section 215 and Section 464 of the Code?

Illustration of Section 215:

(a) A is charged under Section 242 of the Indian Penal Code (45 of 1860), with "having been in possession of counterfeit coin, having known at
the time when he became possessed thereof that such coin was counterfeit,” the word "fraudulently" being omitted in the charge. Unless it
appears that A was in fact misled by this omission, the error shall notbe regarded as material.

(b) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge or is set out incorrectly. A defends himself,
calls witnesses and gives his own account of the transaction. The Court may infer from this that the omission to set out the manner of the
cheating is not material.
(c) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge. There were many transactions between A
and B, and A had no means of knowing to which of them the charge referred, and offered no defence. The Court may infer from such facts
that the omission to set out the manner of the cheating was, in the case, a material error.

(d) A is charged with the murder of Khoda Baksh on the 21st January, 1882. In fact, the murdered person's name was Haidar Baksh, and the
date of the murder was the 20th January, 1882. A was never charged with any murder but one, and had heard the inquiry before the
Magistrate, which referred exclusively to the case of Haidar Baksh. The Court may infer from these facts that A was not misled, and that the
error in the charge was immaterial.

(e) A was charged with murdering Haidar Baksh on the 20th January, 1882, and Khoda Baksh (who tried to arrest him for that murder) on the
21st January, 1882. When charged for the murder of Haidar Baksh, he was tried for the murder of Khoda Baksh. The witnesses present in his
defence were witnesses in the case of Haidar Baksh. The Court may infer from this that A was misled, and that the error was material.

Case Law: Mohan Singh v State of Bihar, (2011) 9 SCC 272

Brief Facts: Victims were running medical store. They were demanded money for Durga Puja and at the same time they were threatened that
in case of non-payment, they have to face dire consequences. They did not pay and informed to the police station. Lakshmi Singh and Niraj
Singh killed Sureshwar Jha and his son (Anil Kumar Jha) on direction of Mohan Singh. Reason of this killing was non-payment of money of
extortion. Motihari (Bihar) Police Station registered FIR against all these three accused on the basis of information given by Vikas Kumar Jha.
All the three accused were prosecuted for murder after hatching conspiracy for murder.

At the time of framing of ‘Charges’ only section 120B and Section 387 of IPC were mentioned. Section 302 of IPC was mistakenly not
mentioend in the charges framed against the accused persons. But facts of case in charges were narrated in such a manner that it was
clear that accused were involved in conspiracy of causing of death.
This error in framing charge was neither raised before Trial Court, High Court nor in the course of examination under section 313 of Cr.P.C.
It was first time raised in Supreme Court on the basis of Section 464 of CrPC.
Issue before Supreme Court: Whether non-mentioning of section 302, IPC in ‘Head of Charges’ will affect proceedings
against the Appellant and has resulted in failure of justice.
Decision of Supreme Court:
• The purpose of framing a charge is to give intimation to the accused of clear, unambiguous and precise notice of the
nature of accusation that the accused is called upon to meet in the course of a trial
• Supreme Court held that no prejudice has been caused to the appellant for non-mentioning of Section 302 I.P.C. in the
charge since all the ingredients of the offence were disclosed.
The appellant had full notice and
He had ample opportunity to defend himself against the same and
He had at no earlier stage of the proceedings, raised any grievance relating to error in framing of charge.
Apart from that, on an overall consideration of the facts and circumstances of this case, appellant neither suffered any
prejudice nor has there been any failure of justice.
In the instant case, in the charge it has been clearly mentioned that the accused-appellant has committed the murder of
Anil Jha. By mentioning that the accused has committed the murder of Anil Jha all the ingredients of the charge have been
mentioned and the requirement of Section 211(2) has been complied with.
• The court also relied on the decision of Dalbir Singh v. State of U.P., (2004), wherein Supreme Court held that in view of
Section 464 Cr.P.C. it is possible for the appellate or revisional court to convict the accused for an offence for which no
charge was framedunless the court is of the opinion that the failure of justice will occasion in the process. The learned
Judges further explained that in order to judge whether there is a failure of justice the Court has to examine
whether the accused was aware of the basic ingredients of the offence for which he is being convicted and
whether the main facts sought to be established against him were explained to him clearlyand
whether he got a fair chance to defend himself.
On the basis of above grounds Supreme Court held, “We do not find any substance in the aforesaid grievance of the
appellant.” Affirmed the decision of the High Court and upheld the conviction and punishment awarded to the Appellant
Q. Can a Court alter ‘Charge’? If so, how and up-to what stage?

Ans: According to Section 216 of the Code, a criminal court may alter charge before judgment is pronounced. The section
invests a comprehensive power to remedy the defects in the framing or non-framing of a charge, whether discovered at the
initial stage of the trial or at any subsequent stage prior to the judgment.The sections reads:
Any Court may alter or add to any charge at any time before judgment is pronounced. It does not use word
‘omission’.[Sub-section (1)]
Every such alteration or addition shall be read and explained to the accused. [Sub-section (2)]

Procedure after Alteration or Addition of charge if immediate proceeding is possible without prejudice
According to Sub-section (3) of Section 216, if in the opinion of the Court,
the alteration or addition to a charge is such that proceeding immediately with the trial is not likely to prejudice the
accused in his defence or the prosecutor in the conduct of the case,
the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered
or added charge had been the original charge.

Procedure after Alteration or Addition of charge if immediate proceeding is not possible without prejudice
According to Sub-section (4) of Section 216, if in the opinion of the Court,
the alteration or addition is such that proceeding immediately with the trial is to prejudice the accused or the
prosecutor as aforesaid,
the Court may, either direct a new trial or adjourn the trial for such period as may be necessary.
Note: The court has a very wide power to alter the charge; however, the court is to act judiciously and to exercise the
discretion wisely. It should not alter the charge to the prejudice of the accused person.

Rule relating to Prior Sanction for Proceeding if any Charge is Altered or Added:
According to Sub-section (5) of Section 216 , if the offence stated in the altered or added charge is one for the
prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained,
unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added
charge is founded.
For example if Court has added charge of Sedition, the case shall not be proceeded with until such sanction is obtained. [See,
Sec. 196 of the Code]

Rule relating to Recall of Witnesses when Charge Altered:

According to Section 217, whenever a charge is altered or added to by the Court after the commencement of the trial, the
prosecutor and the accused shall be allowed -

(a) to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been
examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case
may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice;
(b) also to call any further witness whom the Court may think to be material.
Q. For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be
tried separately. Discuss. Are there any exceptions to this rule?
Ans: The first part of the question can be answered by discussing the Basic rule of relating to a 'Charge'. This basic rule is
prescribed under Section 218 of the Code, which states that for every distinct offence of which any person is accused there
shall be a separate charge and every such charge shall be tried separately (except otherwise provided under the Code). This
rule is enacted so that the accused could prepare his defence properly and effectively and no Injustice be caused to him.

Illustration: A is accused of a theft on one occasion, and of causing grievous hurt on another occasion. A must be separately
charged and separately tried for the theft and causing grievous hurt.

The strict observance of the above rule may lad to multiplicity of trials, therefore the Code provides the following Exception
to the above general rule:
Exception 1: According to proviso to Section 218(1) of the code, where the accused person, by an application in writing, so
desires and the Magistrate is of opinion that such person is not likely to be prejudiced thereby, the Magistrate may try
together all or any number of the charges framed against such person.

Exception 2: Three offences of same kind within year may be charged and tried together [Section 219]
When a person is accused of more offences than one of the same kind committed with in the period of 12 months from
the first to the last of such offences, he may be charged with, and tried at one trial for any number of them not exceeding
three.
Therefore following are the essential conditions of this Exception:
(i) Offences of Same Kind
(ii) Committed within 12 months
(iii) Joint Trial of not more than 3 Offences
Meaning of Offences of Same Kind: Offences are of the same kind when they are punishable with the same amount of
punishment under the same section of the Indian Penal Code (45 of 1860) or of any special or local law [Sub-section (2)]

For the purposes of this section, an offence punishable under section 379 of the Indian Penal Code (45 of 1860) shall be
deemed to be an offence of the same kind as an offence punishable under section 380 of the said Code, and that an
offence punishable under any section of the said Code, or of any special or local law, shall be deemed to be an offence of
the same kind as an attempt to commit such offence, when such an attempt is an offence. [Proviso to Section 219]

Exception 3: Offence Committed in the Course of Same Transaction by the Same Person [Section 220(1)]
If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by
the same person,
he may be charged with, and tried at one trial for, every such offence.

Illustartions:
(a) A rescues B, a person in lawful custody, and in so doing causes grievous hurt to C, a constable in whose custody B was. A may be charged
with, and convicted of, offences under sections 225 and 333 of the Indian Penal Code (45 of 1860).

(b) A commits house-breaking by day with intent to commit adultery, and commits, in the house so entered, adultery with B's wife. A may be
separately charged with, and convicted of, offences under sections 454 and 497 of the Indian Penal Code (45 of 1860).

(c) A entices B, the wife of C, away from C, with intent to commit adultery with B, and then commits adultery with her. A may be separately
charged with, and convicted of, offences under sections 498 and 497 of the Indian Penal Code (45 of 1860).

Note: In Joseph Shine v. Union of India (2018) – Supreme Court declared Section 497 IPC as unconstitutional. After decision of this case
illustrations (b) and (c) have lost their relevancy.
(d) A has in his possession several seals, knowing them to be counterfeit and intending to use them for the purpose of committing several
forgeries punishable under section 466 of the Indian Penal Code (45 of 1860). A may be separately charged with, and convicted of, the
possession of each seal under section 473 of the Indian Penal Code.

(e) With intent to cause injury to B, A institutes a criminal proceeding against him, knowing that there is no just or lawful ground for such
proceeding, and also falsely accuses B of having committed an offence, knowing that there is no just or lawful ground for such charge. A may
be separately charged with, and convicted of, two offences under section 211 of the Indian Penal Code (45 of 1860).

(f) A, with intent to cause injury to B, falsely accuses him of having committed an offence, knowing that there is no just or lawful ground for
such charge. On the trial, A gives false evidence against B, intending thereby to cause B to be convicted of a capital offence. A may be
separately charged with, and convicted of, offences under sections 211 and 194 of the Indian Penal Code (45 of 1860).

(g) A, with six others, commits the offences of rioting, grievous hurt and assaulting a public servant endeavouring in the discharge of his duty
as such to suppress the riot. A may be separately charged with, and convicted of, offences under sections 147, 325 and 152 of the Indian
Penal Code (45 of 1860).

(h) A threatens B, C and D at the same time with injury to their persons with intent to cause alarm to them. A may be separately charged
with, and convicted of, each of the three offences under section 506 of the Indian Penal Code (45 of 1860).

The separate charges referred to in illustrations (a) to (h), respectively, may be tried at the same time.
Exception 4: Criminal breach of trust or dishonest misappropriation of property and their companion offences [Section220
(2)]
Sub-section (2) of Section 220 covers 3 kinds of Offences:
Dishonest misappropriation of property - Sections 403-404, IPC.
Criminal breach of trust – Sections 406-410, IPC.
Falsification of accounts -Offence under section 477A, IPC.
When a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as
provided in sub-section (2) of section 212 or in sub-section (1) of section 219 of CrPC, is accused of committing, for the
purpose of facilitating or concealing the commission of that offence or those offences, one or more offences of falsification of
accounts, he may be charged with, and tried at one trial for, every such offence

Exception 5: Same Act Falling under Different Definition of Offences [Section 220(3)]
If the acts alleged constitute an offence, falling within two or more separate definitions of any law in force for the time
being by which offences are defined or punished,
the person accused of them may be charged with, and tried at one trial for, each of such offences

Illustrations: (i) A wrongfully strikes B with a cane. A may be separately charged with, and convicted of, offences under Sections 352 and
323 of the Indian Penal Code (45 of 1860). These offences may be tried jointly.

(j) Several stolen sacks of corn are made over to A and B, who knew they are stolen property, for the purpose of concealing them. A and B
thereupon voluntarily assist each other to conceal the sacks at the bottom of a grain-pit. A and B may be separately charged with, and
convicted of, offences under sections 411 and 414 of the Indian Penal Code (45 of 1860). These offences may be tried jointly.
(k) A exposes her child with the knowledge that she is thereby likely to cause its death. The child dies in consequence of such exposure. A
may be separately charged with, and convicted of, offences under sections 317 and 304 of the Indian Penal Code (45 of 1860). These offences
may be tried jointly.

(l) A dishonestly uses a forged document as genuine evidence, in order to convict B, a public servant, of an offence under section 167 of the
Indian Penal Code (45 of 1860). A may be separately charged with, and convicted of, offences under sections 471 (read with section 466) and
196 of that Code. These offences may be tried jointly.

Exception 6: Acts Forming an Offence also Constituting Different Offences when Taken Separately or in Group [Section
220(4)]
If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when
combined a different offence,
the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when
combined, and for any offence constituted by any one, or more, of such acts.

Illustration:
(m) A commits robbery on B, and in doing so voluntarily causes hurt to him. A may be separately charged with, and convicted of, offences
under sections 323, 392 and 394 of the Indian Penal Code. These offences may be tried jointly.
Exception 7: Where it is Doubtful what Offence has been Constituted [Section 221(1)]
If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved
will constitute,
the accused may be charged with having committed all or any of such offences, and any number of such charges may
be tried at once; or
he may be charged in the alternative with having committed some one of the said offences

Note: If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different
offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence
which he is shown to have committed, although he was not charged with it. [Section 221(2)]
Illustration on Section 220(1):
(a) A is accused of an act which may amount to theft, or receiving stolen property, or criminal breach of trust or cheating.
He may be charged with theft, receiving stolen property, criminal breach of trust and cheating, [Charged for all offences] or
he may be charged with having committed theft, or receiving stolen property, or criminal breach of trust or cheating. [Alternative
Charges]

Illustration on Section 220(2):

(b) In the case mentioned, A is only charged with theft. It appears that he committed the offence of criminal breach of trust, or that of
receiving stolen goods. He may be convicted of criminal breach of trust or of receiving stolen goods (as the case may be), though he was
not charged with such offence.
Certain Persons may be Tried Jointly [Section 223]

The following persons may be charged and tried together, namely:

(a) persons accused of the same offence committed in the course of the same transaction; [Section 220(1)]

(b) persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence;

(c) persons accused of more than one offence of the same kind, within the meaning of Section 219 committed by them
jointly within the period of twelve months;

(d) persons accused of different offences committed in the course of the same transaction.

(e) persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, and persons
accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to
have been transferred by any such offence committed by the first-named persons, or of abetment of or attempting to
commit any such last-named offence;

(f) persons accused of offences under sections 411 and 414 of the Indian Penal Code (45 of 1860) or either of those sections
in respect of stolen property the possession of which has been transferred by one offence;

(g) persons accused of any offence under Chapter XII of the Indian Penal Code (45 of 1860) relating to counterfeit coin and
persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to
commit any such offence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all
such charges
 As discussed above, the basic rule regarding charge is that for every distinct offence there shall be a separate charge & for
every such charge there shall be separate trial. The only exceptions recognized are contained in Sections 219,220,221 &
223 of Cr.P.C.

Therefore separate trial is the rule and the joint trial is an exception. The sections containing the exceptions are only
enabling provisions.

A court has got the discretion to order a separate trial even though the case is covered by one of the exceptions enabling
a joint trial. A joint trial of a very large number of charges is very much to be deprecated even though it is not prohibited
by law. A separate trial is always desirable whenever there is risk of prejudice to the accused in a joint trial.

It is the option of the court whether to resort to Section 219,220 & 223 of the Code or whether to act as laid down in
Section 218 and that the accused has no right to claim joinder of charges or of offenders.
Q. What are cases in which an accused person may be convicted of an offence which is not specified in the charge sheet on
which he has been tried?
Ans: The Code contemplates two cases in which the Court can convict the accused of offences for which he is not charged.
These are:
(i) Such a circumstance is found in Section 221(2) of the Code which permits the Court to convict an accused for an offence
not charged with if it appears in evidence that he committed a different offence for which he might have been charged
under the provisions of sub-section (1) of section 221. Section 221 of the Code thus provides for framing of alternative
charges and convicting an accused for an offence where only one of the alternative charges is framed. [See illustration of
Section 221(2) on previous slides]

(ii) The second such circumstance authorising the Court to convict an accused for a different offence not charged with is
where the prosecution fails to prove all particulars constituting the offence but could only prove few facts which in itself
constitute a minor offence. The accused may be convicted for such minor offence though not charged with. [Read Section
222]

Illustrations:
(a) A is charged, under Section 407 of the Indian Penal Code (45 of 1860), with criminal breach of trust in respect of
property entrusted to him as a carrier. It appears, that he did commit criminal breach of trust under section 406 of that
Code in respect of the property, but that it was not entrusted to him as a carrier. He may be convicted of criminal breach of
trust under the said Section 406.

(b) A is charged, under Section 325 of the Indian Penal Code (45 of 1860), with causing grievous hurt. He proves that he
acted on grave and sudden provocation. He may be convicted under Section 335 of that Code.
 Withdrawal of remaining charges on conviction on one of several charges [Section 224]

When a charge containing more heads than one is framed against the same person, and when a conviction has been had on
one or more of them,
the complainant, or the officer conducting the prosecution, may, with the consent of the Court, withdraw the remaining
charge or charges, [Withdrawal by Parties] or
the Court of its own accord may stay the inquiry into, or trial of, such charge or charges [Stay by Court]
&
Such withdrawal shall have the effect of an acquittal on such charge or charges, unless the conviction be set aside, in which
case the said Court (subject to the order of the Court setting aside the conviction) may proceed with the inquiry into, or trial
of, the charge or charges so withdrawn. [Effect of Withdrawal]
 Mohan Singh v. State of Bihar
(2011)9 SCC 272

A. K.GANGULY, J.

⮚ This criminal appeal has been preferred from the judgment of the High Court in Criminal Appeal (DB)
No. 1338 of 2007, dated 3.9.2008, whereby the High Court upheld the judgment and order of
conviction passed by the learned Additional Sessions Judge, Fast Track Court-IV, Motihari, East
Champaran in Sessions Trial No. 101/16 of 2006/2007.

⮚ Sessions Court: Held the appellant guilty of criminal conspiracy for murder under sections 120B of IPC
and of extortion under section 387 of IPC and sentenced him to undergo rigorous imprisonment for
life and was fined for Rs.25,000/- for the offence of criminal conspiracy for murder under section
120B, in default of which he was to further undergo simple imprisonment for 1 year. He was further
sentenced for seven years rigorous imprisonment under section 387 IPC and was fined Rs.5,000/-, in
default of which to undergo simple imprisonment for six months.

Facts of the Case:

⮚ That the informant Shri Vikas Kumar Jha gave a fardbeyan to the effect that at about 5.00 P.M. on
23.7.2005, he had received a call on, inquiring about his elder brother Shri Anil Kumar Jha. The
informant stated before the police that his elder brother, the owner of a medical store, on the said
date had been out of town.

⮚ He submitted that he had communicated the same to the caller. Upon such reply, the caller disclosed
himself as Mohan Singh, the appellant herein, and asked the informant to send him Rs.50,000/-. The
informant submitted that he had similar conversations with the caller three to four times in the past.

⮚ However, he then received another telephone call on 25.7.2005 from a cell phone. The caller
threatened him that since the demand of money had not been fulfilled, the informant should be ready
to face the consequences. Upon his elder brother's return, the informant had narrated the events to
him. However, his elder brother did not take the threat seriously.

⮚ On 3.8.2005, at about 9.00 P.M. when the informant was at a place called Balua Chowk, he had
received a call from his driver Shri Dhanai Yadav on his cell phone to the effect that informant's elder
brother and their father, Shri Sureshwar Jha, had been shot at while they were in their medical store,
and that both of them had been rushed to Sadar Hospital.

⮚ On reaching Sadar Hospital, the informant saw the dead body of his elder brother. He was intimated by
the people there that his father had been shifted to another hospital called Rahman's Nursing Home.

⮚ He was also told that the shots had been fired by one Laxmi Singh and Niraj Singh. Having heard this,
the informant rushed to Rahman's Nursing Home, where his injured father told him that while Niraj
Singh cleared the medical store of all the other people, Laxmi Singh had fired shots at him and Anil
Kumar Jha with an A.K. 47 rifle, before fleeing from the scene. After narrating such events, his father
became unconscious.

⮚ The informant further stated that his family had actually known the appellant and Laxmi Singh from an
earlier incident in 2004, when on the occasion of Durga Puja, the two had sent a messenger to Anil
Kumar Jha's medical store, demanding Rs.50,000/- or to face death in the alternative. He submitted
that pursuant to this, they had preferred a complaint before the police, and that the matter was sub
judice.
⮚ He further stated that he had actually met the appellant once prior to the telephone calls when the
latter had asked for money, as contribution for celebrations of Sarswati Puja and Durga Puja. The
informant thus stated that his father and brother had been attacked by Laxmi Singh and Niraj Singh
at the instance of Mohan Singh for not having paid the extortion money. The informant said so on
the identification of the voice of the telephone caller as that of the appellant.

⮚ He, however, did not follow up the calls made on 23rd and 25th of July, 2005 either with the appellant
in person, or with the authorities of Motihari jail where the appellant was in fact lodged at the time of
the calls. These statements of the informant were supported by the informant's father Sureshwar Jha,
and his other brother Sunil Kumar Jha.

On the basis of this fardbeyan, Motihari Town Police Station Case No.246/2005 was registered on
3.8.2005 against the appellant Mohan Singh, Laxmi Singh, Niraj Singh and others.

The investigating officer submitted that:

⮚ he had known the appellant to have as many as seven criminal cases for murder, kidnapping for
ransom and loot, pending against him. However, he submitted that he had received the phone number
attributed to the appellant only from the informant.

⮚ That as many as nine calls had been made between the phone numbers attributed to the appellant and
Laxmi Singh, and that he had retrieved the records of calls made by the number attributed to the
appellant and that of the informant, he had not been able to establish as to who were the registered
owners of the SIM cards.

Decision of Sessions Court:

The learned Sessions Court in the course of trial took note of the fact that identities of the registered
owners of the said SIM cards had not been established by the police, but it did not give much emphasis on
this on the grounds that the informant's family had known the appellant and Laxmi Singh long enough and
had known about their common intention to extort money. On these findings the learned Sessions Court
found the appellant guilty.

Decision of Division Bench High Court in Appeal: On appeal the learned Division Bench upheld the
conviction inter alia on the grounds that the informant himself and his family had known the appellant and
Laxmi Singh from before.

⮚ Even though the High Court in the impugned judgment held that identification by voice and gait is
risky, but in a case where the witness identifying the voice had previous acquaintance with the caller,
the accused in this case, such identification can be relied upon. The High Court also held that direct
evidence in a conspiracy is difficult to be obtained. The case of conspiracy has to be inferred from the
conduct of the parties.

⮚ The High Court relied upon the evidence of the informant, PW.4 and on Exts. 9 and 10 where the
conversation between PW.4 and the appellant was recorded. The High Court also relied upon the
evidence of PW.1 Dhanai Yadav, who was sitting inside the medical store of the deceased Anil Kumar
Jha at the time of the incident.
⮚ PW.1 was a witness to the incident of Laxmi Singh firing shots at the deceased and his father
Sureshwar Jha.
⮚ The High Court also relied upon the evidence of PW.2 Surehswar Jha, the injured witness.
⮚ The High Court found that the evidence of PW.2 and 4 is unblemished and their evidence cannot be
discarded. The High Court also relied upon the evidence of PW.4 as having identified the voice of the
appellant.
On appreciation of the aforesaid evidence, the High Court came to the conclusion that Mohan Singh was
performing one part of the act, and Laxmi Singh performed another part, both performing their parts of
the same act. Thus the case of conspiracy was made out.

Arguments of the Appellant before Supreme Court:

⮚ That the appellant cannot be convicted under section 120-B and given the sentence of rigorous
imprisonment for life in view of the charges framed against the appellant.

In order to appreciate this argument, the charges framed against the appellant are set out below:

FIRST - That you, on or about the day of at about or during the period between 23.7.05 & 3.8.05 agreed
with Laxmi Narain Singh, Niraj Singh & Pankaj Singh to commit the murder of Anil Jha, in the event of his
not fulfilling your demand, as extortion of a sum of Rs.50,000/- and besides the above said agreement
you did telephone from Motihari Jail to Vikash Jha in pursuance of the said agreement extending threat of
dire consequences if the demand was not met and then on 3.8.05 the offence of murder punishable with
death was committed by your companions Laxmi Narain Singh and Niraj Singh and you thereby
committed the offence of criminal conspiracy to commit murder of Anil Jha and seriously injured
Sureshwar Jha and thereby committed an offence punishable under Section 120-B of the Indian Penal
Code, and within my cognizance.

SECONDLY - That you, during the period between 23.7.05 & 3.8.05 at Hospital gate Motihari P.S., Motihari
Town Dist. East Champaran, Put Vikash Jha in fear of death and grievous hurt to him and his family
members in order to commit extortion on telephone and thereby committed an offence punishable under
Section 387 of the Indian Penal Code, and within my cognizance and I hereby direct that you be tried by me
on the said the charge.

Charges were read over and explained in Hindi to the accused and the accused pleaded not guilty as
charged. Let him be tried."

Decision of Supreme Court in the instant Appeal:

⮚ Admittedly, no complaint of any prejudice by the appellant was raised either before the trial Court or in
the High Court or in the course of examination under Section 313 Cr.P.C. These points have been raised
before this Court for the first time.

⮚ These points have been raised before this Court for the first time. In a case where points relating to
errors in framing of charge or even misjoinder of charge are raised before this Court for the first time,
such grievances are not normally considered by this Court.

⮚ However, instead of refusing to consider the said grievance on the ground of not having been raised at
an earlier stage of the proceeding, we propose to examine the same on its merits.

Purpose of Framing Charge under the Code:

⮚ The purpose of framing a charge is to give intimation to the accused of clear, unambiguous and precise
notice of the nature of accusation that the accused is called upon to meet in the course of a trial. (See
decision of a four-Judge Bench of this Court in V.C. Shukla v. State 1980 supp SCC 92 at page 150 and
paragraph 110 of the report).

But the question is how to interpret the words in a charge? In this connection, we may refer to the
provision of Section 214 of the Code which reads:
"214. Words in charge taken in sense of law under which offence is punishable: In every charge words
used in describing an offence shall be deemed to have been used in the sense attached to them respectively
by the law under which such offence is punishable."

The other relevant provisions relating to charge may be noticed as under:

"211. Contents of charge- (1) Every charge under this Code shall state the offence with which the accused
is charged.
(2) If the law which creates the offence gives it any specific name, the offence may be described in the
charge by that name only.
(3) If the law which creates the offence does not give it any specific name, so much of the definition of
the offence must be stated as to give the accused notice of the matter with which he is charged.
(4) The law and section of the law against which the offence is said to have been committed shall be
mentioned in the charge.
(5) The fact that the charge is made is equivalent to a statement that every legal condition required by
law to constitute the offence charged was fulfilled in the particular case.
(6) The charge shall be written in the language of the Court.
(7) If the accused, having been previously convicted of any offence, is liable, by reason of such previous
conviction, to enhanced punishment, or to punishment of a different kind, for a subsequent offence, and it is
intended to prove such previous conviction for the purpose of affecting the punishment which the Court
may think fit to award for the subsequent offence, the fact date and place of the previous conviction shall
be stated in the charge; and if such statement has been omitted, the Court may add it at any time before
sentence is passed.

215 Effect of errors- No error in stating either the offence or the particulars required to be stated in the
charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the
case as material,
unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.

464 Effect of omission to frame, or absence of, or error in, charge.- (1) No finding sentence or order by a
Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or
on the ground of any error, omission or irregularity in the charge including any misjoinder of charges,
unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been
occasioned thereby.

(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact
been occasioned, it may-
(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be
recommenced from the point immediately after the framing of the charge;
(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a
charge framed in whatever manner it thinks fit:

Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be
preferred against the accused in respect of the facts proved, it shall quash the conviction."

While examining the aforesaid provisions, we may keep in mind the principles laid down by Justice Vivian
Bose in Willie (William) Slaney v. State of MP AIR1956 SC 116. The learned judge observed:

"We see no reason for straining at the meaning of these plain and emphatic provisions unless ritual and
form are to be regarded as of the essence in criminal trials. We are unable to find any magic or charm in the
ritual of a charge. It is the substance of these provisions that count and not their outward form. To hold
otherwise is only to provide avenues of escape for the guilty and afford no protection to the innocent."
In K. Prema S. Rao v. Yadla Srinivasa Rao (2003) 1 SCC 217 this Court held that though the charge
specifically under Section 306 IPC was not framed but all the ingredients constituting the offence were
mentioned in the statement of charges.

⮚ Mere omission or defect in framing of charge does not disable the criminal court from convicting the
accused for the offence which is found to have been proved on the evidence on record.The provisions of
Section 221 Cr.P.C. takes care of such a situation and safeguards the powers of the criminal court to
convict an accused for an offence with which he is not charged although on facts found in evidence he
could have been charged with such offence. The learned Judges have also referred to Section 215 of the
Cr.P.C., set out above, in support of their contention.

Even in the case of Dalbir Singh v. State of U.P., (2004) 5 SCC 334, a three-Judge Bench of this Court held
that in view of Section 464 Cr.P.C. it is possible for the appellate or revisional court to convict the accused
for an offence for which no charge was framed unless the court is of the opinion that the failure of justice
will occasion in the process.
⮚ The learned Judges further explained that in order to judge whether there is a failure of justice the
Court has to examine whether the accused was aware of the basic ingredients of the offence for which
he is being convicted and whether the main facts sought to be established against him were explained
to him clearly and whether he got a fair chance to defend himself.

⮚ In State of Uttar Pradesh v. Paras Nath Singh (2009) 6 SCC 372 this Court, setting out Section 464 of
Cr.P.C., further held that whether there is failure of justice or not has to be proved by the accused.

In the instant case no such argument was ever made before the Trial Court or even in the High Court and we
are satisfied from the materials on record that no failure of justice has been occasioned in any way nor has
the appellant suffered any prejudice.

⮚ In Annareddy Sambasiva Reddy v. State of AP (2009) 12 SCC 546 this court again had occasion to deal
with the same question and referred to Section 464 of Cr.P.C. and this Court came to the conclusion
that if the ingredients of the section charged with are obvious and implicit, conviction under such head
can be sustained irrespective of the fact whether the said section has been mentioned or not in the
charge. The basic question is one of prejudice.

In view of such consistent opinion of this Court, we are of the view that no prejudice has been caused to the
appellant for non-mentioning of Section 302 I.P.C. in the charge since all the ingredients of the offence were
disclosed. The appellant had full notice and had ample opportunity to defend himself against the same and
at no earlier stage of the proceedings, the appellant had raised any grievance. Apart from that, on overall
consideration of the facts and circumstances of this case we do not find that the appellant suffered any
prejudice nor has there been any failure of justice.

In the instant case, in the charge it has been clearly mentioned that the accused appellant has committed
the murder of Anil Jha. By mentioning that the accused has committed the murder of Anil Jha all the
ingredients of the charge have been mentioned and the requirement of Section 211, sub-section (2) has
been complied with. Therefore, we do not find any substance in the aforesaid grievance of the appellant.

⮚ Now the only other point on which argument has been made on behalf of the appellant is that in the
instant case appellant was in jail at the time of the commission of the offence. It has been submitted
that his involvement in the whole episode has been argued for only on the evidence of PW.4 who is
said to have identified his voice on the basis of some telephone calls. These are essentially questions of
fact and after a concurrent finding by two courts normally this Court in an appeal against such finding
is slow and circumspect to upset such finding unless this Court finds the finding to be perverse.
⮚ However, on the legal issue one thing is clear that identification by voice has to be considered by this
Court carefully and on this aspect some guidelines have been laid down by this Court in the case of
Kirpal Singh v. The State of UP AIR 1965 SC 712. In dealing with the question of voice identification,
construing the provisions of Section 9 of the Indian Evidence Act, this Court held:

"...It is true that the evidence about identification of a person by the timbre of his voice depending upon
subtle variations in the overtones when the person recognising is not familiar with the person recognised
may be some-what risky in a criminal trial. But the appellant was intimately known to Rakkha Singh and for
more than a fortnight before the date of the offence he had met the appellant on several occasions in
connection with the dispute about the sugarcane crop...."

Relying on such identification by voice this Court held in Kripal Singh that it cannot come to the conclusion
that the identification of the assailant by Rakkha Singh was so improbable that this Court would be justified
in disagreeing with the opinion of the Court which saw the witness and formed its opinion as to its
credibility and also of the High Court which considered the evidence against the appellant and accepted the
testimony.

The same principles will apply here.

⮚ The next decision on which reliance was placed by the learned counsel for the appellant was rendered
in the case of Saju v. State of Kerala (2001) 1 SCC 378. In Saju this Court explained the principles of
Section 10 of the Evidence Act, as follows:
Sec.10 Act or action of one of the accused cannot be used as evidence against the other. However, an
exception has been carved out under Section 10 of the Evidence Act in the case of conspiracy. To attract the
applicability of Section 10 of the Evidence Act, the court must have reasonable ground to believe that two
or more persons had conspired together for committing an offence. It is only then that the evidence of
action or statement made by one of the accused could be used as evidence against the other."

If we apply the aforesaid principles to the facts of the present case it is clear that there is enough evidence
to furnish reasonable ground to believe that both the appellant and Laxmi Singh had conspired together for
committing the offence. Therefore, the principles of this case do not help the appellant.

⮚ In the instant case, as discussed above, substantive evidence was placed to prove the meeting of minds
between the appellant and Laxmi Singh about the murder of the victim. In evidence which has been
noted hereinabove in the earlier part of the judgment it clearly shows that there is substantial piece of
evidence to prove criminal conspiracy.

For the reasons discussed above, this Court does not find that there is any reason to interfere with the
concurrent finding in the instant case. This Court, therefore, does not find any reason to take a view
different from the one taken by the High Court. The appeal is dismissed and the conviction of the
appellant under Section 120B of IPC for life imprisonment is affirmed.
 Ajay Kumar Parmar v. State Of Rajasthan
2012 (9) SCALE 542

Dr. B.S.CHAUHAN, J.

⮚ This appeal has been preferred against the impugned judgment and order dated 9.1.2012 passed by
the High Court of Judicature for Rajasthan at Jodhpur in S.B. Criminal Revision Petition No. 458 of
1998, by way of which, the High Court has upheld the judgment and order dated 25.7.1998, passed by
the Sessions Judge in Revision Petition No. 5 of 1998.

⮚ By way of the said revisional order, the court had reversed the order of discharge of the appellant for
the offences under Sections 376 and 342 of the Indian Penal Code, 1860 (hereinafter referred to as the
dated 25.3.1998, passed by the Judicial Magistrate, Sheoganj.

The facts and circumstances giving rise to this appeal are as follows:

A An FIR was lodged by one Pushpa on 22.3.1997, against the appellant stating that the appellant had
raped her on 10.3.1997. In view thereof, an investigation ensued and the appellant was medically
examined. The prosecutrix’s clothes were then also recovered and were sent for the preparation of FSL
report. The prosecutrix was medically examined on 22.3.1997, wherein it was opined by the doctor that she
was habitual to sexual intercourse, however, a final opinion regarding fresh intercourse would be given only
after receipt of report from the Chemical Examiner.

B The statement of the prosecutrix was recorded under Section 161 of Cr.P.C., by the Dy.S.P., wherein she
narrated the incident as mentioned in the FIR, stating that she had been employed as a servant at the
residence of one sister Durgi for the past six years. Close to the residence of sister Durgi, Dr. D.R. Parmar
and his son Ajay Parmar were also residing. On the day of the said incident, Ajay Parmar called Pushpa, the
prosecutrix home on the pretext that there was a telephone call for her. When she reached the residence
of Ajay Parmar, she was raped by him and was restrained from going out for a long period of time and kept
indoors without provision of any food or water. However, the next evening, she was pushed out
surreptitiously from the back exit of the said house. She then tried to commit suicide but was saved by
Prakash Sen and Vikram Sen and then, eventually, after a lapse of about 10 days, the complaint in question
was handed over to the SP, Sirohi.
⮚ Subsequently, she herself appeared before the Chief Judicial Magistrate, Sirohi on 9.4.1997, and
moved an application before him stating that, although she had lodged an FIR under Section
376/342 IPC, the police was not investigating the case in a correct manner and, therefore, she
wished to make her statement under Section 164 Cr.P.C.

C The Chief Judicial Magistrate, Sirohi, entertained the said application and disposed it of on the same day,
i.e. 9.4.1997 by directing the Judicial Magistrate, Sheoganj, to record her statement under Section 164
Cr.P.C.

D In pursuance thereof, the prosecutrix appeared before the Judicial Magistrate, Sheoganj, which is at a far
distance from Sirohi, on 9.4.1997 itself and handed over all the requisite papers to the Magistrate. After
examining the order passed by the Chief Judicial Magiastrate, Sirohi, the Judicial Magistrate, Sheoganj,
directed the public prosecutor to produce the Case Diary of the case at 4.00 P.M. on the same day.

E As the public prosecutor could not produce the Case Diary at 4.00 P.M, the Judicial Magistrate, Sheoganj,
directed the Public prosecutor to produce the Case Diary on 10.4.1997 at 10.00 A.M. The Case Diary was
then produced before the said court on 10.4.1997 by the Public prosecutor. The Statement of the
prosecutrix under Section 164 Cr.P.C., was recorded after being identified by the lawyer, to the effect that:
the said FIR lodged by her was false; in addition to which, the statement made by her under Section 161
Cr.P.C., before the Deputy Superintendent of Police was also false; and finally that no offence whatsoever
was ever committed by the appellant, so far as the prosecutrix was concerned.

F After the conclusion of the investigation, charge sheet was filed against the appellant. On 25.3.1998, the
Judicial Magistrate, Sheoganj, taking note of the statement given by the prosecrutix under Section 164
Cr.P.C., passed an order of not taking cognizance of the offences under Sections 376 and 342 IPC and not
only acquitted the appellant but also passed strictures against the investigating agency.

G Aggrieved, the public prosecutor filed a revision before the Learned Sessions Judge, Sirohi, wherein, the
aforesaid order dated 25.3.1998 was reversed by order dated 25.7.1998 on two grounds:
firstly, that a case under Sections 376 and 342 IPC was triable by the Sessions Court and the Magistrate,
therefore, had no jurisdiction to discharge/acquit the appellant on any ground whatsoever, as he was
bound to commit the case to the Sessions Court, which was the only competent court to deal with the issue.

Secondly, the alleged statement of the prosecutrix under Section 164 Cr.P.C. was not worth reliance as she
had not been produced before the Magistrate by the police.

H Being aggrieved by the aforesaid order of the Sessions Court dated 25.7.1998, the appellant moved the
High Court and the High Court vide its impugned judgment and order, affirmed the order of the Sessions
Court on both counts.

Hence, this appeal.

Submissions of the Appellant’s Counsel:

Ms. Aishwarya Bhati, learned counsel appearing on behalf of the appellant, has submitted:

⮚ that in view of the statement of the prosecutrix as recorded under Section 164 Cr.P.C., the Judicial
Magistrate, Sheoganj, has rightly refused to take cognizance of the offence and has acquitted the
appellant stating that no fault can be found with the said order, and therefore it is stated that both, the
Revisional Court, as well as the High Court committed a serious error in reversing the same.

Submission of the Respondent’s Counsel:

On the contrary, Shri Ajay Veer Singh Jain, learned counsel appearing for the State, has opposed the
appeal, contending:
⮚ that the Magistrate ought not to have refused to take cognizance of the said offences and has
committed a grave error in acquitting the appellant, after taking note of the statement of the
prosecutrix which was recorded under Section 164 Cr.P.C. The said statement was recorded in great
haste.
⮚ that, as the prosecutrix had appeared before the Magistrate independently, without any assistance of
the police, her statement recorded under Section 164 Cr.P.C. is not worth acceptance. Thus, the appeal
is liable to be dismissed.

Decision of Supreme Court:

⮚ We have considered the rival submissions made by the learned counsel for the parties and perused the
records. A three Judge bench of this Court in Jogendra Nahak &Ors. v. State of Orissa &Ors., AIR 1999
SC 2565, held that Sub-Section 5 of Section 164, deals with the statement of a person, other than the
statement of an accused i.e. a confession. Such a statement can be recorded, only and only when, the
person making such statement is produced before the Magistrate by the police. This Court held that, in
case such a course of action, wherein such person is allowed to appear before the Magistrate of his
own volition, is made permissible, and the doors of court are opened to them to come as they please,
and if the Magistrate starts recording all their statements, then too many persons sponsored by culprits
 might throng before the portals of the Magistrate courts, for the purpose of creating record in advance
to aid the said culprits.

⮚ The said judgment was distinguished by this Court in Mahabir Singh v. State of Haryana, AIR 2001 SC
2503, on facts, but the Court expressed its anguish at the fact that the statement of a person in the said
case was recorded under Section 164 Cr.P.C. by the Magistrate, without knowing him personally or
without any attempt of identification of the said person, by any other person.

In view of the above, it is evident that this case is squarely covered by the aforesaid judgment of the three
Judge bench in Jogendra Nahak &Ors. (Supra), which held that a person should be produced before a
Magistrate, by the police for recording his statement under Section 164 Cr.P.C. The Chief Judicial Magistrate,
Sirohi, who entertained the application and further directed the Judicial Magistrate, Sheoganj, to record the
statement of the prosecutrix, was not known to the prosecutrix in the case and the latter also recorded her
statement, without any attempt at identification, by any court officer/lawyer/police or anybody else.

⮚ In Sanjay Gandhi v. Union of India, AIR 1978 SC 514, this court while dealing with the competence of
the Magistrate to discharge an accused, in a case like the instant one at hand, held:

It is not open to the committal Court to launch on a process of satisfying itself that a prima facie case has
been made out on the merits. The jurisdiction once vested in him under the earlier Code but has been
eliminated now under the present Code. Therefore, to hold that he can go into the merits even for a prima
facie satisfaction is to frustrate the Parliament's purpose in re-moulding Section 207-A (old Code) into its
present non-discretionary shape. Expedition was intended by this change and this will be defeated
successfully if interpretatively we hold that a dress rehearsal of a trial before the Magistrate is in order. In
our view, the narrow inspection hole through which the committing Magistrate has to look at the case
limits him merely to ascertain whether the case, as disclosed by the police report, appears to the Magistrate
to show an offence triable solely by the Court of Session. Assuming the facts to be correct as stated in the
police report, the Magistrate has simply to commit for trial before the Court of Session. If, by error, a wrong
section of the Penal Code is quoted, he may look into that aspect.

If made-up facts unsupported by any material are reported by the police and a sessions offence is made
to appear, it is perfectly open to the Sessions Court under Section 227 CrPC to discharge the accused. This
provision takes care of the alleged grievance of the accused.

⮚ Thus, it is evident from the aforesaid judgment that when an offence is cognizable by the Sessions
court, the Magistrate cannot probe into the matter and discharge the accused. It is not permissible for
him to do so, even after considering the evidence on record, as he has no jurisdiction to probe or look
into the matter at all. His concern should be to see what provisions of the Penal statute have been
mentioned and in case an offence triable by the Sessions Court has been mentioned, he must commit
the case to the Sessions Court and do nothing else.

Thus, we are of the considered opinion that the Magistrate had no business to discharge the appellant. In
fact, Section 207-A in the old Cr.P.C., empowered the Magistrate to exercise such a power. However, in
the Cr.P.C. 1973, there is no provision analogous to the said Section 207-A. He was bound under law, to
commit the case to the Sessions Court, where such application for discharge would be considered. The
order of discharge is therefore, a nullity, being without jurisdiction.

⮚ More so, it was not permissible for the Judicial Magistrate, Sheoganj, to take into consideration the
evidence in defence produced by the appellant as it has consistently been held by this Court that at the
time of framing the charge, the only documents which are required to be considered are the documents
submitted by the investigating agency along with the charge-sheet. Any document which the accused
 want to rely upon cannot be read as evidence. If such evidence is to be considered, there would be a
mini trial at the stage of framing of charge. That would defeat the object of the Code.

⮚ The provision about hearing the submissions of the accused as postulated by Section 227 means
hearing the submissions of the accused on the record of the case as filed by the prosecution and
documents submitted therewith and nothing more. Even if, in a rare case it is permissible to consider
the defence evidence, if such material convincingly establishes that the whole prosecution version is
totally absurd, preposterous or concocted, the instant case does not fall in that category. (Vide: State
of Orissa v.Debendra Nath Padhi, AIR 2003 SC 1512; S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla &
Anr., AIR 2005 SC 3512; Bharat Parikh v. C.B.I. & Anr., (2008) 10 SCC 109; and Rukmini Narvekarv.
Vijaya Satardekar & Ors., AIR 2009 SC 1013)

The court should not pass an order of acquittal by resorting to a course of not taking cognizance, where
prima facie case is made out by the Investigating Agency. More so, it is the duty of the court to safeguard
the right and interests of the victim, who does not participate in discharge proceedings. At the stage of
application of Section 227, the court has to shift the evidence in order to find out whether or not there is
sufficient ground for proceeding against the accused. Thus, appreciation of evidence at this stage, is not
permissible. (P. Vijayan v. State of Kerala &Anr., AIR 2010 SC 663; and R.S. Mishra v. State of Orissa &Ors.,
AIR 2011 SC 1103).

⮚ The scheme of the Code, particularly, the provisions of Sections 207 to 209 Cr.P.C., mandate the
Magistrate to commit the case to the Court of Sessions, when the charge-sheet is filed. A conjoint
reading of these provisions makes it crystal clear that the committal of a case exclusively triable by the
Court of Sessions, in a case instituted by the police is mandatory. The scheme of the Code simply
provides that the Magistrate can determine, whether the facts stated in the report make out an offence
triable exclusively, by the Court of Sessions. Once he reaches the conclusion that the facts alleged in the
report, make out an offence triable exclusively by the Court of Sessions, he must commit the case to the
Sessions Court.

⮚ The Magistrate, in exercise of its power under Section 190 Cr.P.C., can refuse to take cognizance if the
material on record warrants so. The Magistrate must, in such a case, be satisfied that the complaint,
case diary, statements of the witnesses recorded under Sections 161 and 164 Cr.P.C., if any, do not make
out any offence. At this stage, the Magistrate performs a judicial function. However, he cannot
appreciate the evidence on record and reach a conclusion as to which evidence is acceptable, or can be
relied upon. Thus, at this stage appreciation of evidence is impermissible. The Magistrate is not
competent to weigh the evidence and the balance of probability in the case.

We find no force in the submission advanced by the learned counsel for the appellant that the Judicial
Magistrate, Sheoganj, has proceeded strictly in accordance with law laid down by this Court in various
judgments wherein it has categorically been held that a Magistrate has a power to drop the proceedings
even in the cases exclusively triable by the Sessions Court when the charge-sheet is filed by the police.

Appellant’s counsel has placed very heavy reliance upon the judgment of this Court in Minu Kumari &Anr.
v. State of Bihar &Ors., AIR 2006 SC 1937 wherein this Court placed reliance upon its earlier judgment in
Bhagwant Singh v. Commissioner of Police &Anr., AIR 1985 SC 1285 and held that where the Magistrate
decides not to take cognizance and to drop the proceeding or takes a view that there is no sufficient ground
for proceeding against some of the persons mentioned in the FIR, notice to informant and grant of being
heard in the matter, becomes mandatory.

In the case at hand, admittedly, the Magistrate has not given any notice to the complainant before
dropping the proceedings and, thus, acted in violation of the mandatory requirement of law
⮚ The application filed before the Chief Judicial Magistrate, Sirohi, has been signed by the prosecutrix, as
well as by her counsel. However, there has been no identification of the prosecutrix, either by the said
advocate or by anyone else. The Chief Judicial Magistrate, Sirohi, proceeded to deal with the
application without identification of the prosecutrix and has no where mentioned that he knew the
prosecutrix personally. The Judicial Magistrate, Sheoganj, recorded the statement of the prosecutrix
after she was identified by the lawyer. There is nothing on record to show that she had appeared before
the Chief Judicial Magistrate, Sirohi or before the Judicial Magistrate, Sheoganj, along with her parents
or any other person related to her. In such circumstances, the statement so recorded, loses its
significance and legal sanctity.

⮚ The record of the case reveals that the Chief Judicial Magistrate, Sirohi, passed an order on 9.4.1994.
The prosecutrix appeared before the Judicial Magistrate, Sheoganj, at a place far away from Sirohi, on
the same date with papers/order etc. and the said Judicial Magistrate directed the public prosecutor to
produce the Case Diary on the same date at 4.00 P.M. The case Diary could not be produced on the
said day. Thus, direction was issued to produce the same in the morning of the next day. The statement
was recorded on 10.4.1997. The fact-situation reveals that the court proceeded with utmost haste
and any action taken so hurridly, can be labelled as arbitrary

⮚ The original record reveals that the prosecutrix had lodged the FIR herself and the same bears her
signature. She was medically examined the next day, and the medical report also bears her signature.
We have compared the aforementioned signatures with the signatures appearing upon the application
filed before the Chief Judicial Magistrate, Sirohi, for recording her statement under Section 164 Cr.P.C.,
as also with, the signature on the statement alleged to have been made by her under Section 164
Cr.P.C., and after examining the same, prima facie we are of the view that they have not been made by
the same person, as the two sets of signatures do not tally, rather there is an apparent dissimilarity
between them.

⮚ Evidence of identity of handwriting has been dealt with by three Sections of the Indian Evidence Act,
1872 (Sections 45, 47 and 73). Section 73 of the said Act provides for a comparison made by the Court
with a writing sample given in its presence, or admitted, or proved to be the writing of the concerned
person.

The aforesaid discussion leads to the following inferences:

I. In respect of an incident of rape, an FIR was lodged. The Dy.S.P. recorded the statement of the
prosecutrix, wherein she narrated the facts alleging rape against the appellant.

II. The prosecutrix, appeared before the Chief Judicial Magistrate, Sirohi, on 9.4.1997 and lodged a
complaint, stating that the police was not investigating the case properly. She filed an application that her
statement be recorded under Section 164 Cr.P.C.

III. The prosecutrix had signed the said application. It was also signed by her lawyer. However, she was not
identified by any one.

IV. There is nothing on record to show with whom she had appeared before the Court.

V. From the signatures on the FIR and Medical Report, it appears that she is not an educated person and
can hardly form her own signatures.

VI. Thus, it leads to suspicion regarding how an 18 year old, who is an illiterate rustic villager, reached the
court and how she knew that her statement could be recorded by the Magistrate.
VII. More so, she appeared before the Chief Judicial Magistrate, Sirohi, and not before the area Magistrate
at Sheoganj.

VIII. The Chief Judicial Magistrate on the same day disposed of the application, directing the Judicial
Magistrate, Sheoganj, to record her statement.

IX. The prosecutrix appeared before the Judicial Magistrate, Sheoganj, at a far distance from Sirohi, where
she originally went, on 9.4.1997 itself, and her statement under Section 164 Cr.P.C. was recorded on
10.4.1997 as on 9.4.1997, since the public prosecutor could not produce the Case Diary.

X. Signature of the prosecutrix on the papers before the Chief Judicial Magistrate, Sirohi and Judicial
Magistrate, Sheoganj, do not tally with the signatures on the FIR and Medical Report. There is apparent
dissimilarity between the same, which creates suspicion.

XI. After completing the investigation, charge-sheet was filed before the Judicial Magistrate, Sheoganj, on
20.3.1998.

XII. The Judicial Magistrate, Sheoganj, vide order dated 25.3.1998, refused to take cognizance of the
offences on the basis of the statement of the prosecutrix, recorded under Section 164 Cr.P.C. The said court
erred in not taking cognizance on this count as the said statement could not be relied upon.

XIII. The revisional court as well as the High Court have rightly held that the statement under Section 164
Cr.P.C. had not been recorded correctly. The said courts have rightly set aside the order of the Judicial
Magistrate, Sheoganj, dated 25.3.1998, not taking the cognizance of the offence.

XIV. There is no provision analogous to Section 207-A of the old Cr.P.C. The Judicial Magistrate, Sheoganj,
should have committed the case to the Sessions court as the said application could be entertained only by
the Sessions Court. More so, it was not permissible for the court to examine the weight of defence evidence
at that stage. Thus, the order is insignificant and inconsequential being without jurisdiction.

In view of the above, we do not find any force in the appeal. It is, accordingly, dismissed. The judgment
and order of the revisional court, as well as of the High Court is upheld. The original record reveals that
in pursuance of the High Court’s order, the case has been committed by the Judicial Magistrate,
Sheoganj, to the Court of Sessions on 23.4.2012. The Sessions Court is requested to proceed strictly in
accordance with law, expeditiously and take the case to its logical conclusion without any further delay.
We make it clear that none of the observations made herein will adversely affect either of the parties, as
the same have been made only to decide the present case.
Difference between Summons Case and Warrant Case:
Summons Case Warrant Case

“Summons- case” means a case relating to an offence, and not “Warrant- case” means a case relating to an offence punishable
being a warrant case.[Section 2(w)] - Less serious in nature. with death,imprisonment for life or imprisonment for a term
exceeding 2 years. [Sec. 2(x)] - Offences involved in warrant cases
are more serious in nature.
There is only one procedure prescribed for trial of summons cases Procedure for trial of warrant cases by Magistrates are as follows:
(Sections 251 – 259). It is immaterial whether court has taken (i) Warrant Cases instituted on police report (Sections 238 – 243,
cognizance on the basis of police report or otherwise. 248-250) and
(ii) Warrant Cases instituted otherwise than on police report
(Sections 244 – 247, 248-250).
Note: Warrant cases are also tried by Court of Session.
Framing of charge is not necessary (Section 251). Stating particulars Framing of charge is necessary (See, Section 240 and section 246).
of offence will be sufficient. In other words, framing of charge is the
discretion of Court.
Rule is that in summons cases summonsshall be issued [Section In warrant cases either warrant or summons may be issued
204(1) (a)]. Exceptions to this rule is provided under section 87, [Section 204(1) (b)]. Generally even in warrant cases summons is
Cr.P.C issued.
Trial of Summons Cases can be converted into trial of warrant Trial of Warrant Cases cannot be converted into Summons cases.
cases. [Section 259]
In case of non-appearance of complainant, Magistrate may acquit In case of non-appearance of complainant, Magistrate may
the accused [Section 256] discharge the accused in some case before framing of charge
[Section 249]
 SESSIONS TRIAL [Sections 225-237 (Chapter XVIII)]

Opening of case by Public Prosecutor by describing

charge brought against the accused. Sec 226

not exclusively triable by Court of

Session, he may frame charge & order
transfer of trial to CJM or JM I Class,
If Judge considers that no sufficient Framing of Charge. Sec 228
who shall try the offence in accordance
grounds for proceeding against the If Judge is of the opinion that with the trial procedure of warrant
accused exists, he shall Discharge accused has committed an offence cases instituted on a police report.
the accused. Sec. 227 which is -
exclusively triable by the Court,
he shall frame charge against the
accused.
Charge is read out & accused is asked
whether he pleads guilty or not.
Sec 228 (1)

Date for prosecution evidence to be fixed

If accused pleads guilty, Judge
u/s 230 in case, the accused refuses to
shall record the plea & may order
plead guilty; does not plead guilty; claims
conviction. Sec 229
to be tried or; is not convicted u/s 229.

Evidence for Prosecution. Sec 231 -

Judge shall take all such evidence
produced in support of prosecution.

Acquit the accused u/s 232, if the

If accused is not acquitted u/s 232, he shall
Judge considers that there is no
be called upon to enter on his defence &
evidence that the accused committed
adduce evidence in his support. Sec 233
the offence.

Arguments. Sec 234 - When examination of

defence witness is complete, prosecutor shall
sum up his case & accused shall be entitled
to reply.

Judgement of Acquittal or Conviction.

Sec 235
After hearing arguments, Judge shall
pronounce judgement. 235(1)
If the accused is convicted, Judge shall
(unless the provisions of section 360
applies) hear the accused on question of
sentence & then pass sentence on him.
235(2)
 Now Lets discuss Sessions Trial by Court of Session in Detail

Relevant Provisions: Sections 225 to 237 (Chapter XVIII)

Introductory Remarks:

We have already discussed that a Court of Session cannot directly take cognizance of
any offence exclusively triable by such court. A competent Magistrate may take
cognizance of such an offence and commit the case to the Court of Session for trial.

All offences exclusively triable by Court of Session shall be tried according to the
procedure laid down in section 226 to 236 of Chapter XVIII of the Code.

Note: According to section 26, the High Court has the power to try any offence. But
in practice, generally, the High Court does not conduct any trial, nor does the First
Schedule of the Code indicate any offence as being triable by a High Court.
However, on rare occasions the High Court, after considering the importance and
widespread ramifications of a case, may decide to try the case itself either at the
instance of the government or on it own initiative. The procedure to be observed by
the High Court in such a trial shall, according to section 474 be the same as would be
followed in a Sessions Trial as provided under Chapter XVIII.

A. Initial Steps in the Sessions Trial

(i) Opening of Case for Prosecution: According to section 226:

 when the accused appears or is brought before the Court in pursuance of a
commitment of the case under section 209, the prosecutor shall open his case by
describing the charge brought against the accused; and stating by what evidence
he proposes to prove the guilt of the accused.

 Not necessary for a public prosecutor in opening the case for the prosecution to
give full details regarding the evidence including the documents by which he
intends to prove his case.

Note: It is the duty of the trial court to secure the attendance of the accused not of the
Prosecution.

(ii) Discharge of Accused:

 If, upon consideration of the record of the case and the documents submitted
therewith, and after hearing the submissions of the accused and the prosecution
in this behalf, the Judge considers that there is not sufficient ground for
proceeding against the accused, he shall discharge the accused and record his
reasons for so doing.[Section 227]

 Section 227 is a beneficent provision to save the accused from prolonged

harassment which is a necessary concomitant of a protracted trial.

 The words, “not sufficient ground for proceeding against the accused” clearly
show that the judge is not a mere post office to frame the charge at the behest of
 the prosecution, but has to exercise his judicial mind to the facts of the case in
order to determine whether a case for trial has been made out by the prosecution.

Object of requiring Session Judge to record reasons for discharging the Accused:

 To enable the superior court to examine the correctness of the reasons for which
the Session Judge has held that there is or is not sufficient ground for proceeding
against the accused.
 To keep in view the interests of the victim who does not participate in
proceedings at this stage.
 To inform the prosecution as to what went wrong with the investigation.

(iii) Framing of Charge: According to Section 228(1) -

(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that
there is ground for presuming that the accused has committed an offence which

(a) is not exclusively triable by the Court of Session, he may, frame a charge
against the accused and, by order, transfer the case for trial to the Chief Judicial
Magistrate, or any other Judicial Magistrate of the first class and direct the accused to
appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial
Magistrate of the first class, on such date as he deems fit, and thereupon such
Magistrate shall try the offence in accordance with the procedure for the trial of
warrant-cases instituted on a police report;

(b) is exclusively triable by the Court, he shall frame in writing a charge against
the accused.

 It is not obligatory on the part of the Sessions Court to give reasons for its
framing charges.
 Section 227 and section 228(1) are inter-related and should be read together.
 While considering the question of framing a charge under this provision, the court
has the power to weigh and analyze the materials for the limited purpose of
finding out whether or not a prima facie case against the accused has been made
out.
 The test to determine a prima facie case against the accused would naturally
depend upon the facts of each case and it is difficult to lay down a rule of
universal application.

Note: The purpose of section 227 and section 228(1) of the Code is to ensure that the
court should be satisfied that the accusations made against the accused person is not
frivolous and there is sufficient material for proceeding against him

(iv) Explaining the Charge to the Accused:

Where the charge has been framed in writing against the accused as mentioned in
section 228(1), the charge shall be read and explained to the accused.
The accused shall then be asked whether he pleads guilty of the offence or claims to
be tried [Section 228(2)]
Note: The default in reading out or explaining the charge to the accused would not
not, however, vitiate the trial unless it can be shown that the non-compliance with
section 228(2) has resulted in causing prejudice to the accused.

(v) Conviction on Plea of Guilty:

 According to section 229, if the accused pleads guilty, the Judge shall record the
plea and may, in his discretion, convict him thereon.

 The plea of guilty must be in unambigous terms; otherwise such a plea is

considered as equivalent to a plea of not guilty.

 The court has got the discretion to accept the plea of guilty and to convict the
accused thereon. However, this discretion is to be used with care and
circumspection and on sound judicial principles bearing in mind the ultimate
objective to do justice to the accused.

Note: If the accused is convicted on his plea of guilty, the judge shall, unless he
proceeds in accordance with the provisions of section 360, hear the accused on the
question of sentence, and the pass sentence on him according to law.

(vi) Date for Prosecution Evidence:

If the accused refuses to plead guilty or does not plead guilty or claims to be tried or is
not convicted under section 229,
 the judge shall fix a date for the examination of prosecution witnesses, and may,
 on the application of the prosecution, issue any process for compelling the
attendance of any witness or the production of any document or other thing.
[Section 230]

B. Evidence for Prosecution & Steps to Follow the Prosecution Evidence

(i) Examination of Witnesses:

 On the date so fixed, (i.e. mentioned in section 230 above) the judge shall
proceed to take all such evidence as may be produced in support of the
prosecution. [Section 231(1)]

At this stage provisions of the Evidence Act, 1872 will come into operation
relevant. For example:

 Witnesses shall be first examined-in-chief then if the adverse party so desires

cross-examined, then if the party calling him so desires re-examined

 For the meaning and scope of the examination-in-chief, cross-examination and

re-examination of witnesses, [Sections 135-166 (Chapter X) of the Evidence
Act, 1872]
 The Judge may, in his discretion, permit the cross-examination of any witness to
be deferred until any other witness or witnesses have been examined or recall any
witness for further cross-examination.[Section 231(2)]

(ii) Record of Evidence

 In all trials before a Court of Session, the evidence of each witness shall, as his
examination proceeds, be taken down in writing either by the presiding Judge
himself or by his dictation in open Court, or under his direction and
superintendence, by an officer of the Court appointed by him in this
behalf.[Section 276(1)]

 Such evidence shall ordinarily be taken down in the form of a narrative, but the
presiding Judge may, in his discretion, take down, or cause to be taken down, any
part of such evidence in the form of question and answer. [Section 276(2)]

 As the evidence of each witness taken under section 276 is completed, it shall be
read over to him in the presence of the accused, if in attendance, or of his pleader,
if he appears by pleader, and shall, if necessary, be corrected.[Section 278(1)]; If
the witness denies the correctness of any part of the evidence when the same is
read over to him, the Magistrate or presiding Judge may, instead of correcting the
evidence, make a memorandum thereon of the objection made to it by the witness
and shall add such remarks as he thinks necessary.[Section 278(2)]; If the record
of the evidence is in a language different from that in which it has been given and
the witness does not understand that language, the record shall be interpreted to
him in the language in which it was given, or in a language which he
understands.[Section 278(3)]
 The evidence so taken down shall be signed by the presiding Judge and shall
form part of the record.[Section 276(3)]
 When a presiding Judge or Magistrate has recorded the evidence of a witness, he
shall also record such remarks (if any) as he thinks material respecting the
demeanour of such witness whilst under examination.[Section 280] This section
aims at giving some aid to the appellant court in estimating the value of the
evidence recorded by the trial court.

Language of Record of Evidence: According to section 277 of the Code, in every

case where evidence is taken down under section 276:

(a) if the witness gives evidence in the language of the Court, it shall be taken down
in that language;

(b) if he gives evidence in any other language, it may, if practicable, be taken down
in that language, and if it is not practicable to do so, a true translation of the evidence
in the language of the Court shall be prepared as the examination of the witness
proceeds, signed by the Magistrate or presiding Judge, and shall form part of the
record;

(c) where under clause (b) evidence is taken down in a language other than the
language of the Court, a true translation thereof in the language of the Court shall be
prepared as soon as practicable, signed by the Magistrate or presiding Judge, and shall
form part of the record:
Provided that when under clause (b) evidence is taken down in English and a
translation thereof in the language of the Court is not required by any of the parties,
the Court may dispense with such translation

 Whenever any evidence is given in a language not understood by the accused,

and he is present in Court in person, it shall be interpreted to him in open Court in
a language understood by him.[Section 279(1)]

(iii) Steps to Follow the Prosecution Evidence:

(a) Oral Arguments and Memorandum of Arguments on behalf of the

Prosecution: Section 314 enables the prosecutor to submit his arguments after the
conclusion of the prosecution evidence and before any other step in the proceedings,
including the personal examination of the accused under section 313(1)(b), is taken.
The prosecution arguments at this stage might help the court in conducting the
examination of the accused and seeking his explanations on the points raised by the
prosecution.

(b) Explanation of the Accused: After the witnesses for the prosecution have been
examined and before the accused is called on for his defence, section 313(1)(b)
requires the court to question the accuse person generally on the case for the purpose
of enabling the accused personally to explain any circumstances appearing in
evidence against him.

(c) Hearing of Parties: Section 232 empowers the court to acquit the accused if there
is no evidence that the accused committed the offence. This the court can do before
calling upon the accused to enter upon his defence and to adduce evidence in support
thereof. With a view to help the court in taking the decision in this matter, section 232
gives an opportunity to both the prosecution and the defence to address the court on
the point. The comments of the parties would naturally relate to the evidence adduced
by the prosecution and the personal examination of the accused.

(d) Order of Acquittal: If, after taking the evidence for the prosecution, examining
the accused and hearing the prosecution and the defence on the point,
 the Judge considers that there is no evidence that the accused committed the
offence, the Judge shall record an order of acquittal. [Section 232]

 Object of Section 232: To expedite the conclusion of the sessions trial and, at the
same time, to avoid unnecessary harassment to the accused by calling upon him
to adduce evidence or to avoid the waste of public time when there is no evidence
at all.

 The section confers an important statutory right upon the accused person to take
his chance of acquittal at the stage of section 232. Till then, he is under no duty to
disclose the names of his defence witnesses.

 If the judge does not think it proper to acquit him under section 232, he has to
call on the accused to enter on his defence and it is that stage at which the
 accused person is under duty to apply for the issue of process for summoning the
defence witnesses.

C. Evidence for Defence & Steps to Follow the Defence Evidence

(i) Examination of Witnesses for the Defence:

 Where the accused is not acquitted under section 232 as mentioned above, he
shall be called upon to enter on his defence and adduce any evidence he may
have in support thereof.[Section 233(1)]

 This provision casts a duty on the trial court to call upon the accused person to
enter on his defence and adduce evidence, he may have.

 If the accused applies for the issue of any process for compelling the attendance
of any witness or the production of any document or thing, the Judge shall issue
such process unless he considers, for reasons to be recorded, that such application
should be refused on the ground that it is made for the purpose of vexation or
delay or for defeating the ends of justice.[Section 233(3)]

 The accused himself is a competent witness and can give evidence on oath in
disproof of the charges made against him. [Read section 315 of the Code]

(ii) Written Statement of the Accused:

 If accused person, if he so desires, can put in any written statement in his defence.
If he puts in any such statement, the judge shall file it with the record. [Section
233(2)]

(iii) Record of Evidence:

 The witnesses for the defence shall be examined in the same manner as has been
mentioned in case of prosecution witnesses. The rules for recording the evidence
of prosecution as discussed above would equally be applicable to record of the
defence evidence.

(iv) Steps to Follow the Defence Evidence

(a) When the examination of the witnesses (if any) for the defence is complete, the
prosecutor shall sum up his case and the accused or his pleader shall be entitled to
reply.

Provided that where any point of law is raised by the accused or his pleader, the
prosecution may with the permission of the judge, make his submission with regard to
such point of law. [Section 234]

Note: As provided by Section 311 the court can, at any stage, summon and examine
any person as a court witness if his evidence appears to be essential to the just
decision of the case.
D Judgment of Acquittal or Conviction

(i) Judgment: After hearing arguments and points of law (if any), the judge shall
give a judgment in the case. The judge may pronounce the judgment of acquittal or
conviction. [Section 235(1)]

(ii) Procedure to Follow the judgment of Conviction:

 If the accused is convicted, the Judge shall, unless he proceeds in accordance with
the provisions of section 360, hear the accused on the questions of sentence, and
then pass sentence on him according to law.[Section 235(2)]

Note: Considering the character of the offender, the nature of the offence and the
circumstances of the case, the judge may, instead of passing the sentence, decide to
release the offender on probation of good conduct under section 360 or under the
Probation of Offenders Act, 1958.

 A separate and specific stage of trial has been provided by Section 235(2)
whereby the sessions court is required to hear the accuse (now the convicted
person) on the question of sentence.

 In other words this provision provides for a bifurcated trial and specifically gives
the convicted person a right of pre-sentence hearing which may not be strictly
relevant to or connected with the particular crime under trial but may have a
bearing on the choice of the sentence.

Object of pre-sentence hearing under section 235(2): To acquaint the court with
the social and personal data of the offender and thereby to enable the court to decide
as to the proper sentence or the method of dealing with the offender after his
conviction.

Meaning of word ‘hearing’ in section 235(2): The ‘hearing’ contemplated by

section 235(2) is not confined to hearing oral submissions, but is also intended to give
an opportunity to the prosecution and the accused to place before the court facts and
materials relating to various factors bearing on the question of sentence and if they are
contested by either side, then to produce evidence for the purpose of establishing the
same.

 The obligation to hear the accused on the question of sentence is not discharged
by putting a formal question to him as to what he has to say on the question of
sentence. The court must make a genuine effort to elicit from the accused all
information which will eventually bear on the question of sentence.

 As a general rule the sessions court should after recording the conviction adjourn
the matter to a future date and call both the prosecution as well as the defence to
place the relevant material bearing on the question of sentence before it and
thereafter pronounce the sentence to be imposed on the offender.
 However, mere non-conduct of the pre-sentence hearing on a separate date would
not per se vitiate the trial if the accused has been afforded sufficient time to place
relevant relevant materials on the record.
 A sentencing decision taken without following the requirements of section 235(2)
in letter and spirit is likely to be struck down as violative of the rules of natural
justice.
 Non-compliance with the requirements of section 235(2) cannot be described as
mere irregularity in the course of the trial and not curable under section 465.

For example: When no opportunity has been given to the accused to produce
material and make submissions in regard to the sentence to be imposed on him, failure
of justice is implicit and therefore, the defect of non-compliance with section 235(2)
is not curable by section 465 of the Code.

(iii) Procedure in Case of Previous Conviction. [Section 236]

In a case where a previous conviction is charged under the provisions of sub-section
(7) of section 211, and the accused does not admit that he has been previously
convicted as alleged in the charge, the Judge may, after he has convicted the said
accused under section 229 or section 235, take evidence in respect of the alleged
previous conviction, and shall record a finding thereon:

Provided that no such charge shall be read out by the Judge nor shall the accused be
asked to plead thereto nor shall the previous conviction be referred to by the
prosecution or in any evidence adduced by it, unless and until the accused has been
convicted under section 229 or section 235.

Difference between Discharge and Acquittal:

Discharge Acquittal
An order of discharge simply means that An order of acquittal is a judicial decision
there is no prima facie evidence against after fully inquiry establishing the
the accused to justify the framing of innocence of the accused.
charge. Such order does not establish
anything regarding innocence or guilt of
the accused
Discharge is a pre-charge framing stage. Acquittal is a postframing of charge
For example Section 227. stage. For example Sections 232 & 235.
Discharge occurs during inquiry. In Acquittal occurs during trial.
Common Cause v. Union of India,
Supreme Court made differences between
Inquiry & Trial. The judicial proceeding
before Framing of charge is in the nature
of inquiry and the judicial proceeding
after framing of charge is in the nature of
trial.
After discharge protection of Section 300 After acquittal protection of Section 300,
shall not be available. Cr.P.C. would be available.
Explanation to Section 300 - The
dismissal of a complaint, or the discharge
of the accused, is not an acquittal for the
purposes of this section
Discharge does not bar trial when new Acquittal bars a second trial on the same
evidence available against the accused facts and for the same offence.
An acquittal may also result from:
(a) Absence of complainant –Section
256
(b) Withdrawal of complaint–Section
257
(c) Compounding of offences–Section
320
(d) Withdrawal from prosecution–
Section 321

Some Important Points on Conviction:

 In the criminal cases conviction occurs during trial.
 When it is proved beyond reasonable doubt that the accused has committed a
crime then he is convicted.
 Once he is convicted there shall be a hearing on sentence for the purpose of
deciding the quantum of sentence. For example Section 235(2) provides, ‘If the
accused is convicted, the Judge shall, unless he proceeds in accordance with the
provisions of section 360, hear the accused on the questions of sentence, and then
pass sentence on him according to law.’
 In case of acquittal, accused shall not be entitled for protection under Article
20(2) while in case of conviction the accused shall be entitled for protection
under Article 20(2).
 In case of his previous conviction, at the time of punishment lenient view is not
accepted.
 In case of previous conviction plea bargaining shall not be applicable while in
case of previous acquittal plea bargaining is possible if other conditions are being
fulfilled

Read the Text of Following Provisions of the Code:

Section 313. Power to examine the accused.

(1) In every inquiry or trial, for the purpose of enabling the accused personally to
explain any circumstances appearing in the evidence against him, the Court -
(a) may at any stage, without previously warning the accused put such questions to
him as the Court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and before he is
called on for his defence, question him generally on the case:
Provided that in a summons-case, where the Court has dispensed with the personal
attendance of the accused, it may also dispense with his examination under clause (b).
(2) No oath shall be administered to the accused when he is examined under
sub-section (1).
(3) The accused shall not render himself liable to punishment by refusing to answer
such questions, or by giving false answers to them.
(4) The answers given by the accused may be taken into consideration in such inquiry
or trial, and put in evidence for or against him in any other inquiry into, or trial for,
any other offence which such answers may tend to show he has committed.
(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant
questions which are to be put to the accused and the Court may permit filing of
written statement by the accused as sufficient compliance of this section.

Section 314. Oral arguments and memorandum of arguments.

(1) Any party to a proceeding may, as soon as may be, after the close of his evidence,
address concise oral arguments, and may, before he concludes the oral arguments, if
any, submit a memorandum to the Court setting forth concisely and under distinct
headings, the arguments in support of his case and every such memorandum shall
form part of the record.
(2) A copy of every such memorandum shall be simultaneously furnished to the
opposite party.
(3) No adjournment of the proceedings shall be granted for the purpose of filing the
written arguments unless the Court, for reasons to be recorded in writing, considers it
necessary to grant such adjournment.
(4) The Court may, if it is of opinion that the oral arguments are not concise or
relevant, regulate such arguments.

Section 315. Accused person to be competent witness.

(1) Any person accused of an offence before a Criminal Court shall be a competent
witness for the defence and may give evidence on oath in disproof of the charges
made against him or any person charged together with him at the same trial: Provided
that-
(a) he shall not be called as a witness except on his own request in writing;
(b) his failure to give evidence shall not be made the subject of any comment by any
of the parties or the Court or give rise to any presumption against himself or any
person charged together with him at the same trial.

Procedure in Cases of Defamation of High Dignitaries and Public Servants as

provided in section 199(2) [Section 237]

 A Court of Session taking cognizance of an offence under sub- section (2) of

section 199 shall try the case in accordance with the procedure for the trial of
warrant- cases instituted otherwise than on a police report before a Court of
Magistrate:
Provided that the person against whom the offence is alleged to have been committed
shall, unless the Court of Session, for reasons to be recorded, otherwise directs, be
examined as a witness for the prosecution. [Section 237(1)]

 Every trial of cases of defamation of high dignitaries and public servants shall be
held in camera if either party thereto so desires or if the Court thinks fit so to do.
[Section 237(2)]
 If, in any such case, the Court discharges or acquits all or any of the accused and
is of opinion that there was no reasonable cause for making the accusation
against them or any of them, it may, by its order of discharge or acquittal, direct
the person against whom the offence was alleged to have been committed (other
than the President, Vice-President or the Governor of a State or the Administrator
 of a Union territory) to show cause why he should not pay compensation to such
accused or to each or any of such accused, when there are more than one.
[Section 237(3)]

 The Court shall record and consider any cause which may be shown by the
person so directed, and if it is satisfied that there was no reasonable cause for
making the accusation, it may, for reasons to be recorded, make an order that
compensation to such amount not exceeding one thousand rupees, as it may
determine, be paid by such person to the accused or to each or any of them.
[Section 237(4)]

 The person who has been ordered under sub-section (4) to pay compensation
may appeal from the order, in so far as it relates to the payment of compensation,
to the High Court.[Section 237(7)]
 TRIAL OF WARRANT CASES BY MAGISTRATES [Sections 238-250
(Chapter XIX)]

Cases instituted on a Police Report Cases instituted otherwise than on a

Police Report

Sec. 238 - Compliance with Sec. 207 Sec. 244 - Evidence for Prosecution
At the commencement of trial, Magistrate Magistrate shall proceed to hear prosecution
shall satisfy himself that he has complied & take all such evidences produced in
with section 207. support thereof.

Sec. 245 - Discharge Sec. 246 (1) Framing of Charge

Sec. 240(1) - Framing of Charge
Sec. 239 - Discharge Accused shall be discharged if If ground for presuming that
If ground for presuming that accused
Accused shall be discharged if Magistrate considers that no case accused has committed an
has committed an offence under this
charges against the accused are could be made out against the offence under this Chapter exists,
Chapter exists, Magistrate shall
found groundless. accused on the basis prosecution Magistrate shall frame charge
frame charge against the accused.
evidence. against the accused.

Sec. 240(2) - Whether Pleads Sec. 246 (2) - Whether Pleads

Guilty Guilty
Charge shall be read & explained to Charge shall be read & explained
the accused & he shall be asked to the accused & he shall be
whether he pleads guilty or has any asked whether he pleads guilty or
defence to make. has any defence to make.

Sec. 242 - Evidence for Sec. 246(4) Refuses to plead

Sec. 241 - Conviction on plea of Prosecution If the accused claims to be tried
Sec. 246 (3) If pleads guilty or does not plead guilty or is not
guilty If the accused claims to be tried
Magistrate shall record the plea convicted under 246(3), he shall
Magistrate shall record the plea or does not plead guilty or is not
convict the accused if he pleads state if he wishes to cross
convict the accused if he pleads convicted under 241, Magistrate
guilty. examine prosecution witnesses.
guilty. shall fix a date for prosecution
evidence.

The evidence of any remaining witnesses for

Sec. 243 - Evidence for Defence the prosecution shall be taken
Accused shall be called upon to
produce evidence in his defence.

Sec. 247 - Evidence for Defence

Accused shall be called upon to enter upon his
defence & produce his evidence; and provisions of
sec. 243 shall apply to the case.

Sec. 248(1) - Acquittal or Conviction

If Magistrate finds accused not guilty, he shall record an order of acquittal.

Sec. 248(2) - Hearing on Sentence

If magistrate finds the accused guilty, but does not proceed u/s 325 or 360, he shall hear the accused & pass
sentence upon him according to law.
 Now Lets discuss Trial of Warrant Cases by Magistrate in Detail

Relevant Provisions: Sections 238 to 250 (Chapter-XIX)

Introductory Remarks:

The procedure for trial of warrant cases by Magistrate is provided under Chapter XIX
(sections 238 to 250) of the Code.

Sections 238 to 250 may be divided into three groups:

1st Group: Consists of section 238 to 243 and deals with provisions mainly applicable
in respect of warrant cases instituted on a police report;

2nd Group: Consists of sections 244 to 247 and deals with provisions exclusively
applicable to warrant cases instituted otherwise than on a police report;

3rd Group: consists of sections 248 to 250 which are equally applicable both to cases
instituted on a police report and cases instituted otherwise than on a police report.

Reason for difference in procedure to be followed in trial of warrant cases

instituted on police report and cases instituted otherwise than on a police report.

In cases instituted on a police report, lot of record made during investigation by the
police is made available to the court and the accused person. Such record does not
exist in cases instituted otherwise than on a police report. Therefore, it becomes
necessary in such cases to provide special procedures to enable the accused to
acquaint himself with the facts of the case on which the prosecution is relying before
he is called upon to defend himself.

Trial of Warrant Cases Instituted on a Police Report by Magistrate

(Sections 238-243 & Sections 248-249)
A. Initial Steps to be Taken by Magistrate:

(i) Compliance with Section 207 by supplying the Copies of Police Report
(Chargesheet) and other Relevant Documents to the Accused:
 According to section 238 when, in any warrant-case instituted on a police report,
the accused appears or is brought before a Magistrate at the commencement of
the trial, the Magistrate shall satisfy himself that he has complied with the
provisions of section 207.

Object of Section 238:

 To enable the accused to have a complete picture of the prosecution case
against him at the commencement of the trial;
 To enable the accused to cross-examine the witnesses at the time of his
defence.
Meaning of expression ‘at the commencement of the trial’: This expression means
‘at the beginning of the trial’, which in the context of the warrant trial means at the
point when the charge is framed.

Q What is the legal consequence of omission to comply with the provisions regarding
the supply of copies to the accused at the beginning of the trial?
Ans: Such omission will not be fatal so as to vitiate the trial but it will merely an
irregularity curable under Section 465 of the Code.

(ii) Discharge of Accused when Allegations against him are Baseless:

 If, upon considering the police report and the documents sent with it under
section 173 and making such examination, if any, of the accused as the
Magistrate thinks necessary and after giving the prosecution and the accused an
opportunity of being heard, the Magistrate considers the charge against the
accused to be groundless, he shall discharge the accused, and record his reasons
for so doing. [Section 239]

Comment on Section 239:

 Object: To discontinue the groundless prosecution halfway and discharge the
accused to avoid unwarranted trial process which will ultimately result in
acquittal.

 After the necessary documents as mentioned in section 207 are supplied to the
accused, he must be given a reasonable ‘opportunity of being heard’ and
engaging a counsel before framing of charge.

Meaning of expression ‘opportunity of being heard’: Opportunity of

addressing arguments in support of their respective cases and does not mean
examination of witnesses.

Note: Before charging or discharging the accused, the court has to apply its judicial
mind to all the evidence in the case. Evidence which may persuade the court to hold
the charge groundless, must be clinching in nature and the court cannot give benefit
of doubt to the accused at that stage and discharge him.

Discharge order must be a reasoned/speaking order: As the Magistrate has to reach

the decision of discharging the accused after a proper consideration of the
documents before him/her and hearing both sides and his/her order of discharge is
subject to revision, therefore it is necessary that he/she should record his/her
reasons in the order.

(iii) Framing of Charge:

If, upon such consideration (of the police report and the documents sent with it
under Section 173, the examination of the accused), if any, and hearing the parties,
the Magistrate is of opinion that there is ground for presuming that the accused has
committed an offence triable under this Chapter, which such Magistrate is
competent to try and which, in his opinion, could be adequately punished by him, he
shall frame in writing a charge against the accused.[Section 240(1)]

The examination of the accused referred to in section 240(1) can only be with
reference to documents referred to in section 173.

Object of Examination of Accused at the Stage of Framing of Charge: To afford an

opportunity to accused to explain any circumstance appearing against him.

Q Is the examination of accused imperative?

Ans: Examination of the accused is not imperative. However, such examination
becomes necessary when there are facts or circumstances in the documents etc.,
which go against the accused and which need explanation before framing charge.

Note: The responsibility of framing the charges is that of the court and it has to
judicially consider the question of doing so. Without fully adverting to the material
on the record it must not blindly adopt the decision of the prosecution. Nor should it
be influenced by the counsel for the complainant.

(iv) Explaining the Charge to the Accused:

 After the framing of the charge, it shall then be read and explained to the
accused,
&
he shall be asked whether he pleads guilty of the offence charged or claims to be
tried.[Section 240(2)]

Note: If the accused has been made aware of the offences, a mistake in framing of
charges may not prejudice the accused.

(v) Conviction on Plea of Guilty:

If the accused pleads guilty, the Magistrate shall record the plea and may, in his
discretion, convict him thereon.[Section 241]

 If the accused is convicted on his plea of guilty, the Magistrate shall unless he
proceeds in accordance with the provisions of section 325 or section 360, hear
the accused on the question of sentence and then pass sentence on him
according to law.

(vi) Fixing Date for Prosecution Evidence

 If the accused refuses to plead (guilty) or does not plead (guilty), or claims to be
tried or the Magistrate does not convict the accused under section 241, the
Magistrate shall fix a date for the examination of witnesses.[Section 242(1)]

 Recording of the evidence on the very day on which the charge is framed would
render the proceedings illegal.
 The Magistrate may, on the application of the prosecution, issue a summons to
any of its witnesses directing him to attend or to produce any document or
other thing.[Section 242(2)]

Note: The word ‘may’ in section 242(2) suggests that the Magistrate has
discretion in the matter of issuing summons to a prosecution witness.

B. Evidence for Prosecution & Steps to Follow the Prosecution Evidence

(i) Examination of Witnesses:

On the date so fixed for the examination of witnesses, the Magistrate shall proceed
to take all such evidence as may be produced in support of the prosecution.[Section
242(3)]

Proviso to Section 242(3): The Magistrate may permit the cross-examination of any
witness to be deferred until any other witness or witnesses have been examined or
recall any witness for further cross-examination.

 This sub-section casts a duty on the Magistrate to take all such evidence as may
be produced by the prosecution on the date fixed.
 Material witnesses considered necessary by the prosecution for unfolding the
prosecution story alone need to be produced without unnecessary and
redundant multiplication of witnesses.
 The Magistrate is to take all the evidence adduced by the prosecution, and he
cannot acquit the accused after taking only part of the prosecution evidence.

(ii) Record of the Evidence

 In all warrant-cases tried before a Magistrate, the evidence of each witness shall,
as his examination proceeds, be taken down in writing either by the Magistrate
himself or by his dictation in open Court or, where he is unable to do so owing to
a physical or other incapacity, under his direction and superintendence, by an
officer of the Court appointed by him in this behalf.[Section 275(1)]
Proviso to Section 275(1): evidence of a witness under this sub-section may also be
recorded by audio-video electronic means in the presence of the advocate of the
person accused of the offence.

 Where the Magistrate causes the evidence to he taken down, he shall record a
certificate that the evidence could not be taken down by himself for the reasons
referred to in sub-section (1) given above.[Section 275(2)]

 Such evidence shall ordinarily be taken down in the form of a narrative; but the
Magistrate may, in his discretion take down, or cause to be taken down, any
part of such evidence in the form of question and answer.[Section 275(3)]

 The evidence so taken down shall be signed by the Magistrate and shall form
part of the record.[Section 275(4)]
 The provisions regarding the reading over of the evidence to each witness, [S.
278];
the recording of the remarks respecting the demeanour of a witness, [S.280];
the language in which the evidence is to be recorded, [S. 277];
the interpretation of the evidence to the accused or his pleader, [S.279]
are the same as are applicable in respect of evidence recorded in a trial before a
Court of Session.

(iii) Steps to Follow the Prosecution of Evidence: After the completion of the
prosecution evidence two important steps are taken:

(a) Oral Arguments and the Memorandum of Arguments on behalf of the

Prosecution [Section 314]
(b) Examination of the Accused under [Section 313(1)(b)]

C. Evidence for the Defence & Steps to follow the Defence Evidence

(i) Examination of Witnesses for the Defence:

 After the completion of the prosecution evidence, the submission of the
prosecution arguments and the examination of the accused person under
section 313(1)(b), the accused shall then be called upon to enter his defence
and produce his evidence. [S. 243(1)]

 If the accused, after he has entered upon his defence, applies to the Magistrate
to issue any process for compelling the attendance of any witness for the
purpose of examination or cross-examination, or the production of any
document or other thing, the Magistrate shall issue such process unless he
considers that such application should be refused on the ground that it is made
for the purpose of vexation or delay or for defeating the ends of justice and such
ground shall be recorded by him in writing.[S. 243(2)]

Proviso to section 243(2): When the accused has cross-examined or had the
opportunity of cross-examining any witness before entering on his defence, the
attendance of such witness shall not be compelled under this section, unless the
Magistrate is satisfied that it is necessary for the ends of justice.

 The Magistrate may, before summoning any witness on an application under

sub-section (2), require that the reasonable expenses incurred by the witness in
attending for the purposes of the trial be deposited in Court.[S. 243(3)]

(ii) Written Statement of the Accused:

 If the accused puts in any written statement, the Magistrate shall file it with the
record. [S. 243(1)]

 This provision regarding the written statement might be of some use to an

accused person who (or whose pleader) feels that his examination under section
313(1)(b) has not given him a full opportunity to explain all aspects of the case.
(iii) Record of the Evidence
 The evidence for the defence shall be recorded in the same manner and subject
to the same rules as discussed under rules for recording prosecution evidence.

(iv) Steps to Follow the Defence Evidence:

(a) Court Witness: The court can, at any stage, summon and examine any person as
a court witness if his evidence appears to it to be essential to the just decision of the
case.[S. 311]

(b) Arguments submitted on behalf of Defence: After the close of the defence
evidence, the defence can address concise oral arguments and may submit to the
court a memorandum in support of its case.[See, Section 314]

D. Judgment of Acquittal and Conviction:

 After the closing of the defence evidence and after hearing arguments the
Magistrate shall give a judgment in the case.

 If, in any case under this Chapter in which a charge has been framed, the
Magistrate finds the accused not guilty, he shall record an order of
acquittal.[Section 248(1)]

 Where, in any case under this Chapter, the Magistrate finds the accused guilty,
but does not proceed in accordance with the provisions of section 325 or section
360, he shall, after hearing the accused on the question of sentence, pass
sentence upon him according to law.[Section 248(2)]

Hearing on Question of Sentence:

 In order to acquaint the court with the social and personal data of the offender
and thereby to enable the court to decide as to the proper sentence or the
method of dealing with the offender after his conviction, Section 248(2) makes
it imperative that the Magistrate shall hear the accused on the question of
sentence.
 In other words, after an accused has been found guilty and an order to that
effect has been passed, the Magistrate cannot straightway record an order of
sentence. He has to pause there because the statute enjoins that he shall
‘hear’ the accused on the question of sentence.
 Section 248(2) given an opportunity to both parties to bring to notice of the
court facts and circumstances which will help personalize the sentence froma
reformative angle.

Note: The provision of section 248(2) is similar to one contained in section 235(2).
Procedure in Case of Previous Conviction:
 Where, in any case under this Chapter, a previous conviction is charged under
the provisions of sub-section (7) of section 211 and the accused does not admit
that he has been previously convicted as alleged in the charge, the Magistrate
may, after he has convicted the said accused, take evidence in respect of the
alleged previous conviction, and shall record a finding thereon. [Section 248(3)]

Proviso to section 248(3): No such charge shall be read out by the Magistrate nor
shall the accused be asked to plead thereto nor shall the previous conviction be
referred to by the prosecution or in any evidence adduced by it, unless and until the
accused has been convicted under sub-section (2).

Note: This sub-section provides for a special procedure for determining liability to
enhanced punishment as a consequence of previous conviction.

 The object of the section in prohibiting the proof of previous conviction to be

given until and unless the accused is convicted, is to prevent the accused from
being prejudiced at the trial.

Discharge of Accused in Certain Cases where the Complainant is Absent:

 When the proceedings have been instituted upon complaint, and on any day
fixed for the hearing of the case, the complainant is absent, and the offence may
be lawfully compounded or is not a cognizable offence, the Magistrate may, in
his discretion, notwithstanding anything hereinbefore contained, at any time
before the charge has been framed, discharge the accused.[Section 249]

 The provision contained under section 249 is one of the examples of disposal of
criminal cases without full trial.

 The clauses “and the offence may be lawfully compounded” and “is not a
cognizable offence” are separated by a disjunctive conjunction ‘or’ which
indicates that they are not alternative and not cumulative. Thus the section
applies not only to cases where the offence is compoundable one but also
where though it is non-compoundable, it is non-cognizable.

 The discretion which is vested in the Magistrate to discharge the accused, is to

be exercised judicially and not arbitrarily.
 Trial of Warrant Cases Instituted otherwise than on a Police Report by Magistrate
(Sections 244 to 248)
A. Initial Steps to be Taken by Magistrate

(i) Preliminary Hearing of the Prosecution Case:

 In cases instituted on a police report the accused has the advantage of getting
copies of the documents referred to in section 173 and thereby he is enabled to
make adequate preparations for his defence. These documents also help the
court in deciding whether to frame charge against the accused person, or to
discharge him if there is “no evidence”.

As such copies and record are not available to the court and to the accused person in
cases instituted otherwise than on a police report, a sort of preliminary hearing of
the prosecution case becomes desirable. For this purpose section 244 of the code
provides thus:

Section 244(1): When, in any warrant-case instituted otherwise than on a police

report, the accused appears or is brought before a Magistrate, the Magistrate shall
proceed to hear the prosecution and take all such evidence as may be produced in
support of the prosecution.

(2) The Magistrate may, on the application of the prosecution, issue a summons to
any of its witnesses directing him to attend or to produce any document or other
thing.

When the accused appears or is brought before the Magistrate, he is required to

“hear” the prosecution and to take such evidence as may be produced in support
of the prosecution.

The word “hear”in this context obviously suggests that the court shall have to
give a right of audience to the prosecution regarding the nature and character of the
evidence that it wants to produce.

Meaning of expression “as may be produced”: This expression connote that the
liberty of determining the order of evidence or the production of the same or the
choice of the witnesses is entirely that of the prosecution.

Note: There is a qualitative difference between the approach that the court adopts
and the evidence adduced at the stage of taking cognizance and summoning the
accused and that recorded at the trial. The difference lies in the fact that while the
former is a process that is conducted in the absence of the accused, the latter is
undertaken in his presence with an opportunity to him to cross-examine the
witnesses produced by the prosecution. [Sunil Mehta v. State of Gujarat, (2013) 9
SCC 209]

(ii) Discharge of Accused:

Section 245 of the code provides thus:
(1) If, upon taking all the evidence referred to in section 244, the Magistrate
considers, for reasons to be recorded, that no case against the accused has been
made out which, if unrebutted, would warrant his conviction, the Magistrate shall
discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging
the accused at any previous stage of the case if, for reasons to be recorded by such
Magistrate, he considers the charge to be groundless.

Comment on Section 245:

 At this stage of the proceedings section 245(1) requires the Magistrate to only
consider the evidence prima facie with the pointed view as to whether the
evidence if unrebutted would result in conviction. He is not required to consder
the entire pros and cons of the evidence at this stage.

 From the reading of section 245 itself it is obvious that an order of discharge
passed by a Magistrate in a case instituted otherwise than on a police report
should always be a written order and it should contain the reasons for the
Magistrate discharging the accused.

Intent behind section 245(2): The complaint should not be allowed to be proceeded
with on a charge which is groundless one in order to prevent undue harassment of
the accused persons.

Note: In view of the language employed by the legislature in section 245(2) It is open
to the Magistrate to discharge the accused without taking any evidence, if he is
otherwise satisfied on materials that the charge is groundless one. For instance:
When a person against whom a process is issued by a criminal court feels that the
process ought to have been issued either for want of any statutory sanction or on the
ground that the averments made in the complaint make out no case or on any other
such ground, it would be open to the accused concerned to move the Magistrate
issuing process to discharge him even before.

(iii) Framing of Charge:

If, when such evidence as mentioned in section 244 has been taken, or at any
previous stage of the case, the Magistrate is of opinion that there is ground for
presuming that the accused has committed an offence triable under this Chapter,
which such Magistrate is competent to try and which, in his opinion, could be
adequately punished by him, he shall frame in writing a charge against the accused.
[Section 246(1)]

 Under this provision the Magistrate is supposed to frame charge against the
accused but it does not lay down that the charge shall be framed only after
evidence is taken in terms of section 244 of the code.
 However section 246(1) empowers a Magistrate to frame a charge at any
previous stage of the case, that may be even after the examination of one
witness.

 To frame charge under this sub-section, what is necessary for the Magistrate is
that he must be of opinion that there is ground for presuming that the accused
has committed the offence.

Note: The phrase “at any previous stage of the case”contained in section 246(1)
has to be read in the context of the provisions of section 244 and it means that if the
Magistrate in the process of taking evidence feels feels at any particular stage that
the evidence so far recorded was enough for the purpose of framing the charge, he
can at that stage frame the charge without further taking the remaining evidence.

(iv) Explaining the Charge to the Accused

 The charge shall then be read and explained to the accused, and he shall be
asked whether he pleads guilty or has any defence to make. [Section 246(2)]

 This section 246(2) is analogous to section 240(2).

(v) Conviction on Plea of Guilty

 If the accused pleads guilty, the Magistrate shall record the plea, and may, in his
discretion, convict him thereon.[Section 246(3)]

 This section is analogous to section 241 of the Code.

 When the facts alleged do not themselves constitute an offence the plea of
guilty cannot be made the basis for conviction. A person can be convicted on a
plea of guilty only if the ingredients of the offences are made out.

(vi) Choice of the Accused to Recall Prosecution Witnesses:

 If the accused refuses to plead, or does not plead or claims to be tried or if the
accused is not convicted under section 246(3), he shall be required to state, at
the commencement of the next hearing of the case, or, if the Magistrate for
reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to
cross-examine any, and, if so, which, of the witnesses for the prosecution whose
evidence has been taken.[Section 246(4)]

 If he says he does so wish, the witnesses named by him shall be recalled and,
after cross-examination and reexamination (if any), they shall be
discharged.[Section 246(5)]

Purpose: To secure the accused an opportunity to cross-examine the prosecution

witnesses after he has been given notice of the specific charge which he has to
answer.
Note: The fact that the accused had cross-examined the prosecution witnesses
before the charge had been framed is no reason to deny the right of
cross-examination of the said witnesses after the framing of charge.

B. Evidence for Prosecution

(i) Examination of Witnesses:

 All prosecution evidence produced in support of the prosecution is already taken
under section 244 before the charge is framed.

 But when the charge is framed the accused becomes aware of the exact nature
of the charge or allegations against him. Therefore, in all fairness to him the
accused person is asked by the Magistrate under section 264(4) as to whether
he wishes to cross-examine any of the witnesses for the prosecution whose
evidence has already be taken under section 244.

 If he says he does so wish, the witnesses named by him shall be recalled and,
after cross-examination and reexamination (if any), they shall be
discharged.[Section 246(5)]

 The evidence of any remaining witnesses for the prosecution shall next be taken,
and after cross-examination and re-examination (if any), they shall also be
discharged.[Section 246(6)]

Note: According to section 246(6) the prosecution is entitled to examine witnesses,

who have not been examined or whose names have not been mentioned in the list
of witnesses before the charge is framed. If in such a case the accused wants time to
cross-examine the witnesses, whose names were not disclosed before the charge
was framed, the Magistrate may grant time to the accused person.

(ii) Record of Evidence: The evidence in warrant cases shall be recorded according
to the provisions contained in sections 275, 277 to 280. [Please refer to discussion
on this provisions under Sessions Trial]

(iii) Steps to Follow the Prosecution Evidence

(a) Arguments on behalf of the Prosecution [Section 314]

(b) Examination of the Accused Person under Section 313(1)(b)

C. Evidence for Defence

 After the completion of the prosecution evidence, arguments, and the

examination of the accused under section 313(1)(b), the accused shall then be
called upon to enter upon his defence and produce his evidence; and the
provisions of section 243 shall apply to the case.[Section 247]
 Section 243 has already been discussed above. Please refer to the same.

 Also the discussion regarding written statement of the accused, record of

evidence and the steps to follow the defence evidence is equally applicable in
respect of section 247.

D. Judgment of Acquittal and Conviction:

Please refer to the discussion under the same head on page number 7 and 8 of this
document. Sections 248 & 249 are equally applicable both to trial of cases instituted
otherwise than on a police report by Magistrate.

Compensation for Accusation without Reasonable Cause [Section 250]

Section 250: (1) If, in any case instituted upon complaint or upon information given
to a police officer or to a Magistrate, one or more persons is or are accused before a
Magistrate of any offence triable by a Magistrate, and the Magistrate by whom the
case is heard discharges or acquits all or any of the accused, and is of opinion
 that there was no reasonable ground for making the accusation against them or
any of them,
 the Magistrate may, by his order of discharge or acquittal, if the person upon
whose complaint or information the accusation was made is present, call upon
him forthwith to show cause why he should not pay compensation to such
accused or to each or any of such accused when there are more than one; or,
 if such person is not present, direct the issue of a summons to him to appear
and show cause as aforesaid.

(2) The Magistrate shall record and consider any cause which such complainant or
informant may show, and if he is satisfied that there was no reasonable ground for
making the accusation, may, for reasons to be recorded make an order
 that compensation to such amount, not exceeding the amount of fine he is
empowered to impose, as he may determine, be paid by such complainant or
informant to the accused or to each or any of them.

(3) The Magistrate may, by the order directing payment of the compensation under
sub-section (2), further order that, in default of payment, the person ordered to pay
such compensation shall undergo simple imprisonment for a period not exceeding
30 days.

(4) When any person is imprisoned under sub-section (3), the provisions of sections
68 and 69 of the Indian Penal Code (45 of 1860) shall, so far as may be, apply.

(5) No person who has been directed to pay compensation under this section shall,
by reason of such order, be exempted from any civil or criminal liability in respect of
the complaint made or information given by him:

Provided that any amount paid to an accused person under this section shall be
taken into account in awarding compensation to such person in any subsequent civil
suit relating to the same matter.

(6) A complainant or informant who has been ordered under sub-section (2) by a
Magistrate of the second class to pay compensation exceeding one hundred rupees,
may appeal from the order, as if such complainant or informant had been convicted
on a trial held by such Magistrate.
(7) When an order for payment of compensation to an accused person is made in a
case which is subject to appeal under sub-section (6), the compensation shall not be
paid to him before the period allowed for the presentation of the appeal has
elapsed, or, if an appeal is presented, before the appeal has been decided; and
where such order is made in a case which is not so subject to appeal the
compensation shall not be paid before the expiration of one month from the date of
the order.

(8) The provisions of this section apply to summons-cases as well as to

warrant-cases.
 TRIAL OF SUMMONS-CASES BY MAGISTRATES [Sections 251-259 (Chapter-XX)]

Sec. 251 - Substance of Accusation to be stated

When the accused appears or is brought before
the Magistrate -
- particulars of offence shall be stated to him &
- he shall be asked whether he pleads guilty or
has any defence to make.

Note: Framing of charge is not mandatory in summons case.

Sec.252 - Conviction on plea of guilty Sec.254 - Procedure when not convicted If the
If the accused pleads guilty, Magistrate Magistrate does not convict the accused u/s 252 or 253,
shall record his plea & may convict him. he shall -
- proceed to hear the prosecution
- take all such evidence produced in support of prosecution, &
Note: Sec.253 Conviction on plea of guilty in - also hear the accused & take all such evidence as he
Absence of accused in petty cases - produces in his defence.
Where summon is issued u/s 206 & the accused
desires to plead guilty without appearing before
the Magistrate, he shall transmit his plea along
with fine amount to the Magistrate through post,
or messenger or letter.

Sec. 255(1) Order of Acquittal

If the Magistrate upon taking evidence
referred to in sec.254 & such further Sec. 255(2) Passing of Sentence
evidence, as he may, on his own motion If the Magistrate does not proceed with sec. 325
cause to be produced, finds the accused or 360, he shall, if he finds the accused guilty,
not guilty, he shall record an order of pass sentence upon him according to law.
acquittal.
 Now Lets discuss Trial of Summons Cases in Detail

Relevant Provisions: Sections 251 to 259 (Chapter XX - Trial of Summons Cases to

be Stated)

A. Initial Steps to be taken by the Magistrate:

(i) Explaining the substance of the accusation to the accused:

According to Sec. 251 when, in a summons case the accused appears or is brought
before the Magistrate shall,
 state the particulars of the offence (of which he is accused) to the accused.
 ask the accused whether he pleads guilty, or
 has any defence to make.

Note: It shall not be necessary for a magistrate to frame a formal charge.

(ii) Conviction on plea of guilty:

According to Sec. 252, if the accused pleads guilty, the Magistrate shall record the
plea in the words used by the accused and may, in his discretion, convict him
thereon.

(iii) Conviction on plea of guilty in absence of the accused in petty cases:

Sec. 253, prescribes the procedure where a person to whom summons has been
issued under sec. 206 has transmitted to the Magistrate, by post or by messenger, a
letter containing his plea and also the amount of fine specified in the summons. Sec.
253 reads thus:

(1) Where a summons has been issued under section 206 and the accused desires
to plead guilty to the charge without appearing before the Magistrate, he shall
transmit to the Magistrate, by post or by messenger, a letter containing his plea and
also the amount of fine specified in the summons.
(2) The Magistrate may, in his discretion, convict the accused in his absence, on his
plea of guilty and sentence him to pay the fine specified in the summons, and the
amount transmitted by the accused shall be adjusted towards that fine, or where a
pleader authorised by the accused in this behalf pleads guilty on behalf of the
accused, the Magistrate shall record the plea as nearly as possible in the words used
by the pleader and may, in his discretion, convict the accused on such plea and
sentence him as aforesaid.

B. Evidence for Prosecution & Steps to Follow the Prosecution Evidence

(i) Hearing of Prosecution Case:

According to sec. 254(1), if the Magistrate does not convict the accused under
section 252 or 253, he shall -
 proceed to hear the prosecution case and
 take all such evidence as may be produced in support of the prosecution.
(ii) Evidence for the prosecution:
According to sec. 254(1), the Magistrate shall then take all such evidence as may be
produced in support of prosecution. Further, a Magistrate may:
 if he thinks fit, on the application of the prosecution, issue summons to any
witness directing him to attend or produce any document or thing. [Sec 254(2)]
 before summoning any witness on such application require that the reasonable
expenses of the witness incurred in attending for the purpose of the trial be
deposited in Court. [Sec 254(3)]

(iii) Record of evidence:

In all summons cases tried before a Magistrate, the Magistrate shall:
 as the examination of each witness proceeds, make a memorandum of the
substance of his evidence in the language of the court. In case of his inability, he
shall, record the reason of his inability and cause such memorandum to be made
in writing or from his dictation in open court. [Sec. 274(1)]
 Such memorandum shall be signed by the Magistrate and shall form part of the
record. [Sec. 274(2)]

(iv) Arguments on behalf of Prosecution:

Section 314 enables the prosecutor to submit his arguments after the conclusion of
the prosecution evidence and before any other further step is taken in the
proceedings.

C. Hearing of the Defence Case

(i) Hearing the accused and evidence for defence:

After the personal examination of the accused, if any, u/s 313(1)(b), the Magistrate
shall hear the accused and take all such evidence as he produces in his defence. [Sec
254(1)]. Further, the Magistrate may:

 if he thinks fit, on the application of the prosecution, issue summons to any

witness directing him to attend or produce any document or thing. [Sec 254(2)]
 before summoning any witness on such application require that the reasonable
expenses of the witness incurred in attending for the purpose of the trial be
deposited in Court. [Sec 254(3)]

(ii) Record of evidence for defence:

The same provisions as are applicable in respect of record of evidence for the
prosecution as mentioned above are equally applicable to the record of defence
evidence.

(iii) Arguments for defence:

After the closure of the defence evidence, the defence may submit its arguments.
Sec 314.
D. Acquittal or Conviction:

(i) Acquittal:
If the Magistrate, upon taking the evidence for the prosecution and for the defence,
and such further evidence, if any, as he may on his own motion, cause to be
produced, finds the accused not guilty, he shall record an order of acquittal. [Sec.
255(1)]

(ii) Conviction and Sentence:

Where the Magistrate does not proceed in accordance with the provisions of section
325 or 360, he shall, if he finds the accused guilty, pass sentence upon him according
to law. [Sec. 255(2)]

(iii) Accused can be convicted of an offence not charged:

A Magistrate may, under section 252 or section 255, convict the accused of any
offence triable under this Chapter, which from the facts admitted or proved he
appears to have committed, whatever may be the nature of the complaint or
summons, if the Magistrate is satisfied that the accused would not be prejudiced
thereby. [Sec. 255(3)]

Additional Provisions:

Non- appearance or death of complainant - Sec. 256

(1) If the summons has been issued on complaint, and
 on the day appointed for the appearance of the accused, or any day subsequent
thereto to which the hearing may be adjourned,
 the complainant does not appear,
 the Magistrate shall, notwithstanding anything herein before contained, acquit
the accused, unless for some reason he thinks it proper to adjourn the hearing of
the case to some other day.

Provided that where the complainant is represented by a pleader or by the officer

conducting the prosecution or where the Magistrate is of opinion that the personal
attendance of the complainant is not necessary, the Magistrate may dispense with
his attendance and proceed with the case.

(2) The provisions of sub- section (1) shall, so far as may be, apply also to cases
where the non- appearance of the complainant is due to his death.

Withdrawal of Complaint - Sec. 257

If a complainant, at any time before a final order is passed in any case under this
Chapter, satisfies the Magistrate that
 there are sufficient grounds for
 permitting him to withdraw his complaint against the accused, or
 if there be more than one accused, against all or any of them,
 the Magistrate may permit him to withdraw the same, and
 shall thereupon acquit the accused against whom the complaint is so withdrawn.

Note: Read this along with Section 321 (Withdrawal of Prosecution) and try to
point out the differences between these two provisions.

Power to stop proceedings in certain cases - Sec. 258

In any summons-case instituted otherwise than upon complaint, a Magistrate first
class or, any other Judicial Magistrate (with the previous sanction of the CJM), may:
 for reasons to be recorded by him,
 stop the proceedings at any stage without pronouncing any judgment and
 where such stoppage of proceedings is made after the evidence of the principal
witnesses has been recorded, pronounce a judgment of acquittal,
 and in any other case, release the accused, and such release shall have the effect
of discharge.

Comment:
 Acquittal - The stoppage of proceeding will have the effect of acquittal of the
accused if the stoppage is made after the evidence of the principal witnesses has
been recorded.
 Discharge - If the proceeding is stopped before the taking of evidence, it shall
have the effect of discharge.

Power of Court to convert summon-cases into warrant cases - Sec. 259

When in the course of the trial of a summons- case relating to an offence punishable
with imprisonment for a term exceeding six months:
 it appears to the Magistrate that in the interests of justice,
 the offence should be tried in accordance with the procedure for the trial of
warrant- cases,
 such Magistrate may proceed to re- hear the case in the manner provided by this
Code for the trial of warrant- cases and may recall an witness who may have
been examined.
 Summary Trial
Chapter XXI [Sections 260 – 265] of Cr.P.C. deals summary trial

Meaning of Summary Trial: According to 41st Report of Law Commission of India:

Summary Trial is an abridged form of regular trial and is a short cut in regular procedure & is resorted to in order to save time
in trying petty cases.

Justification of Summary Trial: Law Commission of India in its 41st Report observed that short-cuts in procedure in criminal
cases are not without risks; but in view of the safeguards provided as to
the type of judicial officers who may exercise this power,
the nature of the offences that may be so tried and
the punishment that may be awarded in such trials,
summary jurisdiction is justifiable.

Judicial Officers Empowered to Conduct Summary Trial:

According to Section 260(1) of the Code following judicial officers are empowered to conduct summary trial:
(a) any Chief Judicial Magistrate
(b) any Metropolitan Magistrate
(c) any Magistrate of the first class specially empowered in this behalf by the High Court,may, if he thinks fit, try in a summary
way
Note: In addition to the abovementioned judicial officers, according to Section 261 of the Code, the High Court may confer on
any Magistrate invested with the powers of a Magistrate of the second class power to try summarily any offence which is
punishable only with fine or with imprisonment for a term not exceeding six months with or without fine, and any abetment
of or attempt to commit any such offence.
Note: If any Magistrate not being empowered by law in this behalf tries an offender summarily, then according to clause (m)
of Section 461, such proceedings shall be void.

Note: The Magistrate has the discretion to decide whether a case should be tried summarily or not. However, such discretion
is to be used judicially having regard to the circumstances of each case.

Q. Which offences are triable in a summary way?

Ans: According to Section 261(1) of the Code, prescribed authorities may, if he thinks fit try in a summary way all or any of the
following offences: [It is discretionary powers of prescribed authorities to decide the offences summarily]
(i) offences not punishable with death, imprisonment for life or imprisonment for a term exceeding two years; [refers to all
offences irrespective of the fact whether any such offence is committed under IPC or any other special enactment]

(ii) theft, under section 379, section 380 or section 381 of IPC, where the value of the property stolen does not exceed two
thousand rupees;

(iii) receiving or retaining stolen property, under section 411 of IPC, where the value of the property does not exceed two
thousand rupees;

(iv) assisting in the concealment or disposal of stolen property, under section 414 of IPC, where the value of such property
does not exceed two thousand rupees;

(v) offences under sections 454 (Lurking house-trespass or house-breaking in order to commit offence punishable with
imprisonment) and 456 (Lurking house-trespass or house-breaking by night) of IPC;
(vi) insult with intent to provoke a breach of the peace, under section 504, and criminal intimidation punishable with
imprisionment for a term which may extend to two years, or with fine, or with both, under section 506 of IPC;

(vii) abetment of any of the foregoing offences;

(viii) an attempt to commit any of the foregoing offences, when such attempt is an offence;

(ix) any offence constituted by an act in respect of which a complaint may be made under section 20 of the Cattle-trespass
Act, 1871.
 Procedure to be Followed in Summary Trial

According to section 260(1), in summary trial, the procedure specified in this Code for the trial of summons case subject to
the provisons of sections 262 to 265.

Important Note: cases relating to offences covered by clause (ii) to (vi) are mostly warrant cases. However, as the maximum
punishment that can be awarded in a summary trial being only three months' imprisonment [Section 262(2)] and as the
offences are triable only by specially empowered Magistrates and other Senior Magistrates, it has been considered
expedient to follow the summons case procedure.
Therefore, it was felt that no particular advantage would be gained by following the more complicated warrant case
procedure if such warrant cases are to be tried summarily only. [See 41st Report of Law Commission of India, page 181]

No sentence of imprisonment for a term exceeding 3 months shall be passed in the case of any conviction under this
Chapter. [Section 262(2)]
Note: However, there is no restriction on the amount of fine that can be imposed in accordance with law.

Q. In what situation a summary trial may be given up in favour of a regular trial?

Ans: According to section 260(2) When, in the course of a summary trial it appears to the Magistrate that the nature of the
case is such that it is undesirable to try it summarily, the Magistrate shall recall any witnesses who may have been examined
and proceed to re-hear the case in the manner provided by this Code.

Note: If there is a change from summary to regular trial, the trial from its inception must be conducted in the regular
manner.
Record in Sumary Trials [Section 263]
In every case tried summarily, the Magistrate shall enter, in such form as the State Government may direct, the following
particulars, namely:
(a) the serial number of the case;

(b) the date of the commission of the offence;

(c) the date of the report or complaint;

(d) the name of the complainant (if any);

(e) the name, parentage and residence of the accused;

(f) the offence complained of and the offence (if any) proved, and in cases coming under clause (ii), clause (iii) or clause (iv) of sub-section
(1) of section 260, the value of the property in respect of which the offence has been committed; [It is the duty of the trial court to give the
substance of the offence by mentioning necessary facts which constituted the offence]

(g) the plea of the accused and his examination (if any);

(h) the finding;

(i) the sentence or other final order;

(j) the date on which proceedings terminated.

Judgment in Cases tried Summarily:

In every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of the
evidence and a judgment containing a brief statement of the reasons for the finding. [Section 264]

Note: The judgment should be such as to enable a court of appeal or revision to know more from its perusal, the nature of the
case, the substance of the evidence and the reasons for the finding so that such courts might be in a position to examine the
correctness or propriety or illegality of such finding.

Note: The judgment referred in section 264 is in addition to the record that has to be maintained under section 263. The
record maintained under section 263 and the judgment under section 264 are distinct and separate.

Language of Record and Judgment:

Every such record and judgment shall be written in the language of the Court. [Section 265(1)]

The High Court may authorise any Magistrate empowered to try offences summarily to prepare the aforesaid record or
judgment or both by means of an officer appointed in this behalf by the Chief Judicial Magistrate, and the record or
judgment so prepared shall be signed by such Magistrate. [Section 265(2)]
 Summons under CrPC

Relevant Provisions: Sections 61-69 (Chapter VI); Sections 91-92 (Chapter VII)
The word ‘Summons’ has not been defined in Code of Criminal Procedure.

Meaning/Definition: Summons is a legal document which is issued by Court to accused, complainant, witnesses and other
persons to -
• present before Court or
• produce documents or things.

Note: Summons also issued in civil cases by a civil court [See, Sections 27 to 32 & Order V of the Code of Civil Procedure,
1908]

Kinds of Summons under CrPC:

(i) Summons for Appearance of Accused, Witnesses etc. (Sections 61-69)
(ii) Summons for Production of Things or Documents (Section 91-92)

To whom summons may be issued under the provisions of CrPC?

• Accused - For example - Section 204
• Witnesses - For example - Sections 233(2), 244(2), 254(2)
• Complainant - For example - section 250
• Any other Person - See section 91
Form of summons [Section 61]: Every summons issued by a Court under this Code
shall be in writing,
in duplicate,
signed by the presiding officer of such Court or by such other officer as the High Court may, from time to time, by rule
direct, and
shall bear the seal of the Court.

Q. How summons are served?

Ans: According to Section 62(1) of the Code every summons shall be served by a police officer, or subject to such rules as the
State Government may make in this behalf, by an officer of the Court issuing it or other public servant.
The summons shall, if practicable, be served personally on the person summoned, by delivering or tendering to him one
of the duplicates of the summons. [Section 62(2)]
Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt therefor on the
back of the other duplicate. [Section 62(3)]

Note: Absconding to avoid service of summons of other proceeding is an offence under Section 172 of IPC.
Preventing service of summons or other proceeding, or preventing publication thereof is an offence under Section 173 of IPC.

Note: Section 350 of CrPC provides the summary procedure for punishment for non-attendance by a witness in obedience to
summons.
Procedure to serve summons on Corporate Bodies and Societies [Section 63]
Service of a summons on a corporation may be effected by serving it on:
• the secretary,
• local manager or
• other principal officer of the corporation, or
• by letter sent by registered post, addressed to the chief officer of the corporation in India, in which case the service shall
be deemed to have been effected when the letter would arrive in ordinary course of post.

In section 63, “corporation” means an incorporated company or other body corporate and includes a society registered under
the Societies Registration Act, 1860.

Service when Persons Summoned cannot be Found [Section 64]

Where the person summoned cannot, by the exercise of due diligence, be found,
• the summons may be served by leaving one of the duplicates for him with some adult male member of his family residing
with him, and
• the person with whom the summons is so left shall, if so required by the serving officer, sign a receipt therefor on the back
of the other duplicate.
Explanation-A servant is not a member of the family within the meaning of this section

If service cannot by the exercise of due diligence be effected as provided in Section 62, Section 63 or Section 64, the
serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead in
which the person summoned ordinarily resides; and thereupon the Court, after making such inquiries as it thinks fit, may
either declare that the summons has been duly served or order fresh service in such manner as it considers proper.
[Section 65]
Q. How to serve summons on Government Servant?
Ans: According to Section 66 where the person summoned is in the active service of the Government, the Court issuing the
summons shall ordinarily send it in duplicate to the head of the office in which such person is employed; and
• such head shall thereupon cause the summons to be served in the manner provided by Section 62, and shall return it to
the Court under his signature with the endorsement required by that section.
• Such signature shall be evidence of due service.

Q. How to serve summons outside local limits?

Ans: According to Section 67 When a Court desires that a summons issued by it shall be served at any place outside its local
jurisdiction, it shall:
• ordinarily send such summons in duplicate to a Magistrate within whose local jurisdiction the person summoned resides,
or is, to be there served.
Q. How to serve summons on witness by post?
Ans: According to Section 69(1):
Notwithstanding anything contained in the preceding sections of this Chapter, a Court issuing a summons to a witness may,
in addition to and simultaneously with the issue of such summons, direct a copy of the summons to be served
• by registered post addressed to the witness at the place where he ordinarily resides or carries on business or personally
works for gain.

Note: When an acknowledgement purporting to be signed by the witness or an endorsement purporting to be made by a
postal employee that the witness refused to take delivery of the summons has been received, the Court issuing the
summons may declare that the summons has been duly served. [Section 69(2)]

Q. Can warrant may be issued against witness?

Ans: Warrant (Bailable or non-bailable warrant) may be issued against any person including a witness under Section 87 of
the Code. This provision is applicable in all cases in which court is competent to issue summons.
Summons Warrant

Summon is issued in duplicate [See, Section 61] Warrant is issued in one copy [See, Section 70]

signed by: (i) presiding officer of such Court or (ii) by such signed by: (i) presiding officer of such Court
other officer as the High Court may, from time to time, by Note: High Court cannot authorize any officer to put their
rule direct. signature.
There are no kinds of summons. There are two types of warrant namely;
(i) Bailable warrant - Section 71
(ii) Non-bailable warrant (NBW)
Summons cannot be issued in lieu of or in addition to Warrant can be issued in lieu of or in addition to summons
warrant [Section 87]
Summons shall be served by a police officer, or by an officer Generally Warrant is executed by police officer. But in
of the Court. Summons is not served by private person exceptional cases, private person can be authorized to
execute warrant.
In case of summons time is given to the person to appear In warrant the direction of Court is to arrest and produce
before the court of produce any thing/doucument. before Court unless warrant is bailable warrant.
 Withdrawal from Prosecution

Justice ordinarily demands that every case must reach its destination, not interrupted in route. Section 321 is exception.
Purpose of law is to establish peace and tranquility in society. Section 321 of the Code reads thus:

321. Withdrawal from prosecution - The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the
consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either
generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal -
(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in
respect of such offence or offences.

Proviso to Section 321: Where such offence—

(i) was against any law relating to a matter to which the executive power of the Union extends, or
(ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of
1946), or
(iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or
(iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of
his official duty
and the Prosecutor in charge of the case has not been appointed by the Central Government, he shall not, unless he has been
permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the
Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central
Government to withdraw from the prosecution.
 Supreme Court on Law Relating to Withdrawal from Prosecution - Some Important Observations

Hon’ble Justice V.R. Krishnaiyer pointed out in Balvant Singh v. State of Bihar, AIR 1977 SC 2265 that
it is the statutory responsibility of the public prosecutor alone to apply his mind and decide about withdrawal of
prosecution and
this power is non-negotiable and cannot be bartered away in favour of those who may be above him on the
administrative side.
Rule - Justice ordinarily demands that every case must reach its destination, not interrupted in route.
Exception - Section 321 is exception. Purpose of law is to establish peace and tranquility in society.

Duty of Court-
• Consent should be given - If some policy consideration bearing on the administration of justice justifies withdrawal, the
court may accord permission.
• Consent should not be given- If there is no public policy bearing on the administration of justice is involved the Court
should not give consent.
• Consent should be vigilant - The court has to be vigilant when a case has been pending before it and not succumb to
executive suggestion made in the form of application for withdrawal with a bunch of papers tacked on.

What should be considered in deciding an application of Withdrawal from Prosecution under Section 321?
Facts should be considered - The sole consideration for the Public Prosecutor when he decides to withdraw from a
prosecution is the, larger factor of the administration of justice. Of course, the interests of public justice being the
paramount consideration.
Facts should not be considered - Prosecution should neither be withdrawn for political favours nor under party pressures
nor like concerns.
Example of prosecution which may be withdrawn under Section 321 CrPC:

(i) Communal feuds: Communal feuds which may have been amicably settled should not re-erupt on account of one or two
prosecutions pending.
(ii) Labour disputes: Labour disputes which, might have given rise to criminal cases, when settled, might probably be another
instance where the interests of public justice in the broader connotation may perhaps warrant withdrawal from the
prosecution.
(iii) Public justice: Other instances also may be given where public justice may be served by withdrawal even apart from the
merits of the case.
In Subhash Chander v. State (Chandigarh Admn.) & Ors.(1979), Hon’ble Justice V.R. Krishnaiyer observed following
important points on Law relating to Withdrawal from Prosecution:

(1) Judges are not fungible - When a crime is committed in this country, the assessment of guilt and the award of
punishment or, alternatively, the discharge or acquittal of the accused are part of the criminal justice process administered
by the courts of the land. It is not the function of the executive to administer criminal justice and in our system, judges are
not fungible.

(2) One of the few exceptions to the uninterrupted flow of the court’s process is Section 321, Cr. P.C.
But even here it is the Public Prosecutor, and not any executive authority, who is entrusted by the Code with the power
to withdraw from a prosecution, and that also with the consent of the court.

(3) All public power is public trust: Once a prosecution is launched, its relentless course cannot be halted except on sound
considerations germane (Relevant) to public justice. All public power is a public trust, and the Public Prosecutor cannot act
save in discharge of that public trust, a public trust geared to public justice.

(4) Consent of Court is check on the exercise of power: The consent of the court under Section 321 as a condition for
withdrawal is imposed as a check on the exercise of that power. Consent will be given only if public justice in the larger
sense is promoted rather than subverted by such withdrawal.
(5) Purpose of withdrawal of prosecution: The fact that broader considerations of
public peace,
larger considerations of public justice and
even deeper considerations of promotion of long-lasting security in a locality,
of order in a disorderly situation or harmony in a factious milieu (social setting) , or
halting a false and vexatious prosecution in a court,

persuades the Executive, pro bono publico, sacrifice a pending case for a wider benefit, is not ruled out although the power
must be sparingly exercised and the statutory agency to be satisfied is the public prosecutor, not the District Magistrate or
Minister.

(6) Prosecutors are limb of Judicial Process rather than extension of the executive: The functionary clothed by the Code
with the power to withdraw from the prosecution is the Public Prosecutor. The Public Prosecutor is not the executive, nor a
flunkey of political power. Invested by the statute with a discretion to withdraw or not to withdraw, it is for him to apply an
independent mind and exercise his discretion. In doing so, he acts as a limb of the judicative process, not as an extension of
the executive.

Note: Malimath Committee (2003) recommended that there should be participation of victim before withdrawal of cases
under section 321, CrPC. But this recommendation has not been implemented by any Government and till now victim has no
role in withdrawal of prosecution of cases under section 321. It is pathetic condition
 Shri Abdul Karim v. The State of Karnataka & Ors., (2000) 8 SCC 710

Brief Facts of the Case: On the night of 30-7-2000, between 20:45 and 21:10 hours, Veerappan abducted from Gajanoor a
film actor named Rajkumar, who is very popular in Karnataka, and three others, namely, Govindraj, who is the son-in-law of
Rajkumar, Nagesh, who is a relative of Rajkumar, and Nagappa, who is an Assistant Film Director. As of today, Rajkumar and
Nagesh remain in Veerappan’s custody. Nagappa is said to have escaped and Govindraj was released by Veerappan. Gajanoor
is a town in Tamil Nadu close to the border with Karnataka.

Senior police officials of State of Karnataka and Tamil Nadu had reliable inputs learnt that Veerappan intended to kidnap
Rajkumar during the latter’s visit to his farmhouse in Gajanoor and had requested adequate security arrangements for
Rajkumar whenever he visited Gajanoor.

Rajkumar did not want police protection and considered the presence of the police a problem. No information had been
received in regard to the visit of Rajkumar to Gajanoor on 28-7-2000, and they had not learnt of it until after the kidnap.

At the time of the kidnapping, Veerappan handed over to Rajkumar’s wife an audio cassette to be delivered to the Chief
Minister of the State of Karnataka. The audio cassette required that he send an emissary to Veerappan. On 31-7-2000
the Chief Ministers of the States of Karnataka and Tamil Nadu met in Chennai and decided to send as an emissary one
Gopal, he having served as an emissary when, on 12-7-1997, Veerappan had kidnapped nine forest officers of the State of
Karnataka and he had obtained their release thereafter.
On 5-8-2000 Gopal sent an audio cassette to Chennai which, in the voices of Veerappan and an associate, set out ten
demands for the release of Rajkumar. On the next day, that is, 6-8-2000, the Chief Ministers of the States of Karnataka and
Tamil Nadu met in Chennai to discuss the demands and their responses were made public at a press conference held on
that very day.
Note: Please read the 10 (plus two additional) demands made by Veerappan and the respone of the Governments of Both the
States from the text of the case law uploaded on google classroom.
For the purpose of our discussion demand number 6 is relevant which reads thus:
Demand 6: Innocent persons languishing in Karnataka Jails should be released.
Response: TADA charges will be dropped immediately facilitating release of the prisoners.

On 11-8-2000 Gopal returned to Chennai with a written message and a video cassette that contained an elaboration of two
earlier demands and two new demands. The elaboration related to the release of prisoners in the State of Karnataka,
which was reiterated, and the payment of compensation based on the Sathasivam Commission Report.

Facts of the Withdrawal of Prosecution Application filed in State of Tamil Nadu: On 10-8-2000 an application was filed by the
Special Public Prosecutor under the provisions of Section 321 of the Criminal Procedure Code in fourteen cases being heard by
the Designated Court at Mysore. These cases were filed under the provisions of the Terrorist and Disruptive Activities
(Prevention) Act and other penal enactments alleging that on the afternoon of 14-8-1992 Veerappan along with his associates
attacked the then Superintendent of Police, Mysore District, Shri Harikrishna, and the then SI of Police of M.M. Hills, Shri
Shakeel Ahamed and other police personnel who had been there to nab Veerappan on the information furnished by the
informant Kamala Naika, who also died in the incident, and had also resulted in the killing of six police personnel and injuring
others and damaging the vehicles and also removing of the weapons and the wireless set belonging to the Police Department.

Grounds of Withdrawal: (i) It is submitted by the Prosecutor that in order to restore the peace and normalcy in the border
area and among the people living in the border area and to maintain peace among the public at general and inhabitants of the
particular village, the Prosecutor has decided to withdraw from the prosecution the charged under the offences of the
provision punishable under Section 3, 4 and 5 of the TADA.
(ii) That the trial regarding other offences are being continued and the charges under the Arms Act and the Explosive
Substances Act, to certain extent cover the provisions of Sections 3 and 4 of TADA. Therefore, no injustice would be caused if
the Prosecutor withdraws the charges for the offences punishable under Sections 3, 4 and 5 of the TADA Act.

Appellant Statement of Opposition against the Withdrawal of Application filed by the Special Prosecutor:The appellant
before us opposed the Special Public Prosecutor’s application. He is the father of Shakeel Ahamed who, as the application
recites, had, allegedly, been killed by Veerappan and his associates. The appellant’s statement of opposition referred to the
abduction of Rajkumar and alleged:
that no cogent reasons had been given for the decision to drop the TADA cases.

that it was the duty of the Special Public Prosecutor to inform the court of the reasons prompting him to withdraw the
prosecution and of the court to apprise itself of these reasons.

The Special Public Prosecutor denied the submission in the statement of opposition that the Government of the State of
Karnataka had yielded to blackmail by Veerappan.

Decision of the Special Judge Designated on the Application of the Special Public Prosecutor: The learned Judge stated:
that the present appellant could not be said to be an aggrieved party who could be permitted to raise objections to the
application.
that he was satisfied that the Special Public Prosecutor had applied his mind in filing the application and the grant of
permission to withdraw subserves the administration of justice and the permission had not been sought covertly with an
ulterior purpose unconnected with the vindication of law, which the executive organs are duty-bound to further and
maintain.
 Accordingly, the learned Judge allowed the application, according consent to withdrawal of the charges relating to
offences punishable under the TADA Act against the accused. He ordered, “the accused in custody and on bail, facing trial
for offences under the TADA Act stand acquitted/discharged as the case may be”. He transferred the cases to the Court of
the Principal District and Sessions Judge, Mysore for disposal in accordance with law of all charges other than under the
TADA Act.
The accused who were in custody and were discharged by the Special Court in respect of TADA charges against them
immediately filed an application for bail before the Court of District and Sessions Judge, Mysore. The court allowed the
bail petition and the accused were directed to be released on bail.

The order dated 19-8-2000 on the Special Public Prosecutor’s application for allowing the withdrawal of prosecution is
impugned in the appeals before us.

Facts of the Withdrawal of Prosecution Application filed in State of Tamil Nadu:

On 16-8-2000: The Special Public Prosecutor before the Designated Court (TADA Act) at Chennai made two applications to
that court under the provisions of Section 321 of the Code. They stated that Radio Venkatesan was charged before the
Designated Court in cases arising under the TADA Act, the Explosive Substances Act, the Indian Penal Code and the Arms Act
and the cases were pending for framing charges. The applications added it is further submitted:

that after perusal of records I am satisfied that under the new change of circumstances and also in the public interest I
hereby request this Hon’ble Court to permit me to withdraw the charges under Sections 3(1), 3(3), 4(1) and 5 of the Tamil
Nadu Terrorist and Disruptive Activities Preventive Act, 1987 against the accused Venkatesan @ Radio Venkatesan and
thus render justice. A copy of the Government Order of 14-8-2000 was submitted with the applications.
Decisions of the Designated Court Chennai on Application of Withdrawal of Prosecution:
The court referred to the applications before it and the provisions of Section 321 which permitted withdrawal from
prosecution of one or more offences when the accused was charged with more than one offence and held thus:
So far as this case is concerned the Government has passed the order to withdraw the TADA case alone as against the
accused Venkatesan @ Radio Venkatesan, who is involved. As this application has been filed by the learned Special Public
Prosecutor on the basis of the Government Order referred above, permission is granted to withdraw the TADA case against
the accused Venkatesan @ Radio Venkatesan and he has been discharged from the various offences of the TADA Act. The
applications were allowed accordingly.

The abovementioned order of the Designated Court, Chennai is also challenged before the Supreme Court.

Decision of Supreme Court by S P. BHARUCHA, J. (for himself and Mohapatra, J.):

A. Supreme Court on Law relating to Withdrawal of Prosecution [under Section 321]
The law as it stands today in relation to applications under Section 321 is laid down by the majority judgment delivered by
Khalid, J. in the Constitution Bench decision of this Court in Sheonandan Paswan v. State of Bihar [(1987) 1 SCC 288]. It is held
therein that:
❖ when an application under Section 321 is made, it is not necessary for the court to assess the evidence to discover whether
the case would end in conviction or acquittal. What the court has to see is whether the application is made in good faith, in
the interest of public policy and justice and not to thwart or stifle the process of law.
❖ The court, after considering the facts of the case, has to see whether the application suffers from such improprieties or
illegalities as would cause manifest injustice if consent was given.
❖ When the Public Prosecutor makes an application for withdrawal after taking into consideration all the material before him,
the court must exercise its judicial discretion by considering such material and, on such consideration, must either give
consent or decline consent.
❖ The section should not be construed to mean that the court has to give a detailed reasoned order when it gives consent. If,
on a reading of the order giving consent, a higher court is satisfied that such consent was given on an overall consideration
of the material available, the order giving consent has necessarily to be upheld. Section 321 contemplates consent by the
court in a supervisory and not an adjudicatory manner.
❖ What the court must ensure is that the application for withdrawal has been properly made, after independent
consideration by the Public Prosecutor and in furtherance of public interest. Section 321 enables the Public Prosecutor to
withdraw from the prosecution of any accused. The discretion exercisable under Section 321 is fettered only by a consent
from the court on a consideration of the material before it. What is necessary to satisfy the section is to see that the Public
Prosecutor has acted in good faith and the exercise of discretion by him is proper.
❖ The law, therefore, is:
that the application under Section 321 must aver that the Public Prosecutor is, in good faith, satisfied, on consideration of
all relevant material, that his withdrawal from the prosecution is in the public interest and it will not stifle or thwart the
process of law or cause injustice. The material that the Public Prosecutor has considered must be set out, briefly but
concisely, in the application or in an affidavit annexed to the application or, in a given case, placed before the court, with its
permission, in a sealed envelope.
The court has to give an informed consent. It must be satisfied that this material can reasonably lead to the conclusion that
the withdrawal of the Public Prosecutor from the prosecution will serve the public interest; but it is not for the court to
weigh the material.
The court must be satisfied that the Public Prosecutor has considered the material and, in good faith, reached the
conclusion that his withdrawal from the prosecution will serve the public interest.
The court must also consider whether the grant of consent may thwart or stifle the course of law or result in manifest
injustice.
If, upon such consideration, the court accords consent, it must make such order on the application as will indicate to a higher
court that it has done all that the law requires it to do before granting consent.
B. Decision of Supreme Court on the Impugned Order of Designated Court at Mysore:
The applications under Section 321 made by the Special Public Prosecutor before the Designated Court at Mysore did not
state why the Special Public Prosecutor apprehended a disturbance of the peace and normalcy of “the border area” or
the “particular village”, nor was any material in this behalf, or a summary thereof, set out.

There was, therefore, no basis laid in the applications upon which the learned Judge presiding over the Designated Court
could conclude that the Special Public Prosecutor had applied his mind to the relevant material and exercised discretion
in good faith and that the withdrawal would not stifle or thwart the course of the law and cause manifest injustice. The
order of the learned Judge noted that the statement of opposition filed by the present appellant averred that Rajkumar
had been abducted by Veerappan and it said that he would have to take notice of this aspect. The order did not note that
the statement of opposition also said that, consequent upon such abduction, the State of Karnataka had yielded to the
demands made by Veerappan and had issued notifications that it would withdraw all cases against Veerappan and his
associates.

No query in this regard was made by the learned Judge with the Special Public Prosecutor. The learned Judge said that he
was satisfied on the material placed before him that the grant of permission to withdraw subserved the administration of
justice and it had not been sought covertly, but he did not state what those materials were. It is not the case of anybody
that any materials were placed before the learned Judge upon the basis of which he could have been satisfied that the
Special Public Prosecutor had applied his mind thereto and had reached, in good faith, the conclusion that the
withdrawal he sought was necessary for the reasons he pleaded. The learned Judge placed on record, as he called it, the
decision of this Court in the case of Sheonandan Paswan, referred to above, but he did not appreciate what it required of
a Public Prosecutor and of a court in regard of Section 321, and he did not follow it.
The order granting consent on the Special Public Prosecutor’s application, therefore, does not meet the requirements of
Section 321 and is bad in law.
C. Decision of Supreme Court on the Impugned Order of Designated Court at Chennai:
The applications under Section 321 filed before the Designated Court at Chennai sought consent to the withdrawal from
TADA prosecution against Venkatesan @ Radio Venkatesan after “perusal of records” by the Special Public Prosecutor,
and they submitted that “under the new change of circumstances and also in the public interest the permission was
sought”. What the record was that the Special Public Prosecutor had perused was not set out nor was it annexed nor a
summary thereof recited. What the changed circumstances were was not set out.

The order on the applications was founded only upon the relevant Government Order, thus:So far as this case is concerned
the Government has passed order to withdraw the TADA case alone as against the accused Venkatesan @ Radio
Venkatesan, who is involved in Crl. Nos. 50 and 346 of 1993. As this application has been filed by the learned Special
Public Prosecutor on the basis of the Government Order referred above, permission is granted to withdraw the TADA case
against the accused Venkatesan @ Radio Venkatesan.…

The order, therefore, was not passed after meeting the requirements of Section 321, and it is bad in law.

The decision of the Government of the State of Karnataka, was that, in view of its apprehension of the unrest that would
follow if any harm were to come to Rajkumar, it was better to yield to Veerappan’s demand and to withdraw TADA charges
against Veerappan and his associates, including the respondents-accused. In this context, the Special Public Prosecutor should
have considered and answered the following questions for himself before he decided to exercise his discretion in favour of
such withdrawal from prosecution of TADA charges.

1.Was there material to show that the police and intelligence authorities and the State Government had a reasonable
apprehension of such civil disturbances as would justify the dropping of charges against Veerappan and others accused of
TADA offences and the release on bail of those in custody in respect of the other offences they were charged with?
2.What was the assessment of the police and intelligence authorities and of the State Government of the risk of leaving
Veerappan free to commit crimes in future, and how did it weigh against the risk to Rajkumar’s life and the likely consequent
civil disturbances?
3.What was the likely effect on the morale of the law-enforcement agencies?
4.What was the likelihood of reprisals against the many witnesses who had already deposed against the
respondents-accused?
5.Was there any material to suggest that Veerappan would release Rajkumar when some of Veerappan’s demands were not
to be met at all?
6.When the demand was to release innocent persons languishing in the Karnataka Jails, was there any material to suggest
that Veerappan would be satisfied with the release of only the respondents-accused?
7.In any event, was there any material to suggest that after the respondents-accused had secured their discharge from TADA
charges and bail on the other charges Veerappan would release Rajkumar?
8.Given that the Government of the States of Karnataka and Tamil Nadu had not for 10 years apprehended Veerappan and
brought him to justice, was this a ploy adopted by them to keep Veerappan out of the clutches of the law?

The affidavit of the Special Public Prosecutor reveals that he was “informed” that the Government of the State of
Karnataka had intelligence reports that if any harm were to be caused to Rajkumar, it would lead to problems between
two linguistic communities. Clearly, he was not shown the intelligence reports. Throughout the affidavit the phrase “I was
informed” recurs. There is no statement therein which shows that the Special Public Prosecutor had the opportunity of
assessing the situation for himself by reading the primary material and deciding, upon the basis thereof, whether he
should exercise his discretion in favour of the withdrawal of TADA charges.
 Acting upon the information, which he could not verify, the Special Public Prosecutor could not be satisfied that such
withdrawal was in the public interest and that it would not thwart or stifle the process of the law or cause manifest
injustice. The Special Public Prosecutor, in fact, acted only upon the instructions of the Government of the State of
Karnataka. He, therefore, did not follow the requirement of the law that he be satisfied and the consent he sought under
Section 321 cannot be granted by this Court.

The affidavit of the Special Public Prosecutor speaks of “withdrawal of TADA charges which would enable the accused to
file necessary bail applications and their consequent release on bail .…” It is, thus, clear that what was envisaged by the
Government of the State of Karnataka and the Special Public Prosecutor was a package which comprised of the
withdrawal of TADA charges against the respondents-accused and their release on bail on applications filed by them. This
indicates complicity with the respondents-accused.

It will have been noticed that stress was laid by the Special Public Prosecutor in his application under Section 321 on the
fact that the prosecutions against the respondents-accused on charges other than under the TADA Act would continue,
and this was noted in the order of the Designated Court. The Designated Court was not told either in the application or
thereafter that the Government of the State of Karnataka and the Special Public Prosecutor had in mind that the
respondents-accused would file bail applications subsequent to the order under Section 321 which would not be opposed.

There can, in the circumstances, be little doubt that after their release on bail the respondents-accused were not expected
to attend the court to answer the remaining charges against them and that the stress laid as aforesaid was intended to
mislead the Designated Court. We deprecate the conduct of the Government of the State of Karnataka and the Special
Public Prosecutor in this behalf.
We deem it appropriate, in the facts and circumstances, to set aside the orders granting bail to the respondents-accused.
 While we cannot assert that conceding to Veerappan’s demands was a ploy of the Government of the State of Karnataka to
keep him out of the clutches of the law, we do find that it acted in panic and haste and without thinking things through in
doing so. That this is so, is clear from the fact that the demands were conceded overnight and also from the fact that the
Government of the State of Karnataka did not ascertain the legal position that it was not for it but for the court to decide
upon the release of persons facing criminal prosecutions.

What causes us the gravest disquiet is that when, not so very long back, as the record shows, his gang had been
considerably reduced, Veerappan was not pursued and apprehended and now, as the statements in the affidavit filed on
behalf of the State of Tamil Nadu show, Veerappan is operating in the forest that has been his hideout for 10 years or more
along with secessionist Tamil elements. It seems to us certain that Veerappan will continue with his life of crime and very
likely that those crimes will have anti-national objectives.

The Government of the State of Tamil Nadu had been apprised that Rajkumar faced the risk of being kidnapped by
Veerappan when he visited his farmhouse at Gajanoor. It knew that Rajkumar was unlikely to give advance intimation of his
visits: he had visited Gajanoor for the house-warming ceremony of his new farmhouse in June 2000 without prior notice.
To put it mildly, it would have been prudent, in the circumstances, to post round the clock at Rajkumar’s farmhouse in
Gajanoor one or two policemen who could inform their local station house of his arrival there and thus ensure his safety.

The appeals are allowed and the order under appeal, dated 19-8-2000, is set aside. The order dated 28-8-2000 passed by the
Principal District and Sessions Judge, Mysore granting bail to the respondents-accused is also set aside. Further, the order of
the Designated Court at Chennai dated 16-8-2000 is set aside.
Concurring Opinion of Justice Y K. SABHARWAL, J:
I have gone through the elaborate and learned judgment prepared by my brother Justice S.P. Bharucha. I respectfully
agree that the orders granting consent on the Special Public Prosecutor’s applications do not meet the requirements of
Section 321 of the Code and the orders are bad in law. The questions raised in these matters have wide-ranging
repercussions regarding the scope of Section 321 and what is required to be considered by the Special Public Prosecutor
before consent of court is sought under Section 321 to withdraw from the prosecution of any person. I record these
additional reasons for concurring with the decision arrived at by Justice Bharucha and Justice Mohapatra.

The facts in detail have been set out in the judgment of Justice Bharucha and it is unnecessary to repeat them except to
briefly notice the broad, admitted and/or well established facts for appreciating the points involved. They are as under:

Veerappan is a dreaded criminal and despite various attempts over a number of years he could not be apprehended.
Veerappan and his gang members hatched a conspiracy to kill Superintendent of Police, Mysore District, Shri Harikrishna
and Sub-Inspector of Police of M.M. Hills Shri Shakeel Ahamed and other police personnel who had been there to nab
Veerappan with a view to terrorise the police force and to put fear of death into the minds of policemen who were
performing duty in attempting to arrest the wanted persons.
Cases filed against them are under the provisions of Terrorist and Disruptive Activities (Prevention) Act (TADA) and other
penal provisions, i.e., Indian Penal Code, Arms Act and Explosive Substances Act.
Rajkumar is a very popular film actor of Karnataka. In case any harm is caused to Rajkumar, there may be backlash on
Tamils in Karnataka and it may lead to problems between the two linguistic communities in the States. The people may
indulge in acts of violence.
On 30-7-2000, Veerappan abducted Rajkumar from his farmhouse along with three others. As of today, Rajkumar and one
Nagesh are still in Veerappan’s custody. No police protection or security was provided when Rajkumar visited the
farmhouse.
 Soon after the abduction of Rajkumar and others, the two State Governments decided to accept the demands of
Veerappan to release those in respect of whom TADA charges and detention orders under the National Security Act have
been withdrawn. The decision was taken in the meeting held on 4-8-2000/5-8-2000 between the Chief Ministers of the two
States.
Applications under Section 321 Cr.P.C seeking consent of court to withdraw TADA charges were filed to facilitate
ultimately the release of accused persons from judicial custody so as to meet Veerappan’s demand. The arrangement was
that once TADA charges are withdrawn, the accused in judicial custody will move bail applications in cases of offences
under IPC and other penal enactments. The Public Prosecutor will concede and will not oppose the grant of bail. The court
will grant the bail and, thus, accused will come out from judicial custody and, thus, this demand of Veerappan would be
met.

Keeping in view the aforesaid facts, let me now revert to application filed under Section 321 Cr.P.C:

The application filed under Section 321 makes no reference whatsoever to any such arrangement as mentioned above. The
main ground stated in the application is that in order to restore the peace and normalcy in the border area and among the
people living in the border area and to maintain peace among the public in general and inhabitants of the particular village,
the Prosecutor has decided to withdraw from the prosecution against the accused charged of the offences punishable
under Sections 3, 4 and 5 of TADA.

The Public Prosecutor has to be straight, forthright and honest and has to admit the arrangement and inform the court that
the real arrangement is to ultimately facilitate the release of these accused from judicial custody by not opposing the bail
applications after the withdrawal of TADA charges. The arrangement as set out above has neither been disputed nor is it
capable of being disputed.
It is well established that the real purpose for withdrawal of TADA charges was to facilitate the grant of bail to the accused.
In such circumstances, why the camouflage? Why is it not so stated in the application filed under Section 321? In fact, it is
a deceit. These are the questions for which there is no plausible answer. No court of law can be a party to such a
camouflage and deceit in judicial proceedings. The answer to these basic questions cannot be that the Judge knew about it
from the very nature of the case. Under these circumstances, it cannot be said that the application was made in good faith.

True, the power of the court under Section 321 is supervisory but that does not mean that while exercising that power, the
consent has to be granted on mere asking. The court has to examine that all relevant aspects have been taken into
consideration by the Public Prosecutor and/or by the Government in exercise of its executive function.

Besides the eight questions noticed in the main judgment, the question and aspect of association of Veerappan with those
having secessionist aspirations were also not considered.

The application and order under Section 321 is a result of panic reaction by overzealous persons without proper
understanding of the problem and consideration of the relevant material, though they may not have any personal motive.
It does not appear that anybody considered that if democratically-elected governments give an impression to the citizens
of this country of being lawbreakers, would it not breed contempt for law; would it not invite citizens to become a law onto
themselves. It may lead to anarchy. The Governments have to consider and balance the choice between maintenance of
law and order and anarchy.

It does not appear that anyone considered this aspect. It yielded to the pressure tactics of those who according to the
Government are out to terrorise the police force and to overawe the elected Governments.The aspect of paralysing and
discrediting the democratic authority had to be taken into consideration.
 It is the executive function to decide in the public interest to withdraw from prosecution as claimed, but it is also for the
Government to maintain its existence. The self-preservation is the most pervasive aspect of sovereignty. To preserve its
independence and territories is the highest duty of every nation and to attain these ends nearly all other considerations
are to be subordinated. Of course, it is for the State to consider these aspects and take a conscious decision.

In the present case, without consideration of these aspects the decision was taken to withdraw TADA charges. It is evident
from material now placed on record before this Court that Veerappan was acting in consultation with secessionist
organisations/groups which had the object of liberation of Tamil from India. There is no serious challenge to this aspect. None
of the aforesaid aspects were considered by the Government or the Public Prosecutors before having recourse to Section 321
Cr.P.C.

With these additional reasons, I am in complete respectful agreement with the conclusion and opinion of my senior colleague
Hon’ble Mr Justice S.P. Bharucha.
 Abdul Karim v. State of Karnataka
(2000) 8 SCC 710

S P. BHARUCHA, J. (for himself and Mohapatra, J.):

⮚ The border between the States of Karnataka and Tamil Nadu runs through mountainous forest. On
about 16,000 acres of this forest land, half in Karnataka and half in Tamil Nadu, a man named
Veerappan has held sway for more than 10 years. He is alleged to have poached elephants and
smuggled out ivory and sandalwood in a very big way. He is alleged to be guilty of the most heinous
crimes, including the murder of 119 persons, among them police and forest officers, and kidnapping.
Task forces set up by the States of Karnataka and Tamil Nadu for the purpose have been unable to
apprehend him and bring him to justice for 10 years.

⮚ On the night of 30-7-2000, between 20:45 and 21:10 hours, Veerappan abducted from Gajanoor a film
actor named Rajkumar, who is very popular in Karnataka, and three others, namely, Govindraj, who is
the son-in-law of Rajkumar, Nagesh, who is a relative of Rajkumar, and Nagappa, who is an Assistant
Film Director. As of today, Rajkumar and Nagesh remain in Veerappan’s custody. Nagappa is said to
have escaped and Govindraj was released by Veerappan. Gajanoor is a town in Tamil Nadu close to the
border with Karnataka.

⮚ On 8-7-1999 the Director General of Police of the State of Karnataka had informed the Inspector
General of Police of the State of Tamil Nadu that it had been reliably learnt that Veerappan intended to
kidnap Rajkumar during the latter’s visit to his farmhouse in Gajanoor and had requested adequate
security arrangements for Rajkumar whenever he visited Gajanoor. The record before us reveals that
Rajkumar did not want police protection and considered the presence of the police a problem. He had
visited Gajanoor on 22-6-2000 but no information in this behalf had been intimated to the police
authorities at Gajanoor; however, they had come to know of his presence and had made security
arrangements. No information had been received in regard to the visit of Rajkumar to Gajanoor on
28-7-2000, and they had not learnt of it until after the kidnap.

⮚ At the time of the kidnapping, Veerappan handed over to Rajkumar’s wife an audio cassette to be
delivered to the Chief Minister of the State of Karnataka. The audio cassette required that he send an
emissary to Veerappan. On 31-7-2000 the Chief Ministers of the States of Karnataka and Tamil Nadu
met in Chennai and decided to send as an emissary one Gopal, he having served as an emissary when,
on 12-7-1997, Veerappan had kidnapped nine forest officers of the State of Karnataka and he had
obtained their release thereafter.

⮚ On 1-8- 2000, Gopal left on his first mission to meet Veerappan in the forest along with two members
of his staff and a videographer. On 5-8-2000 Gopal sent an audio cassette to Chennai which, in the
voices of Veerappan and an associate, set out ten demands for the release of Rajkumar. On the next
day, that is, 6-8-2000, the Chief Ministers of the States of Karnataka and Tamil Nadu met in Chennai to
discuss the demands and their responses were made public at a press conference held on that very
day.

The ten demands and the responses thereto, as released to the press, are as follows:
Demand: 1. Permanent solution for the Cauvery water issue and implementation of the interim orders of
the Cauvery Tribunal.
Response: For implementation of the interim orders, the Cauvery River Water Authority has been set up
under the chairmanship of the Prime Minister.
Demand 2: Adequate compensation for Tamil victims of 1991 riots.
Response: Karnataka has constituted the Cauvery Riots Relief Authority as directed by the Supreme Court.
About 10,000 claims have been received. The time-limit for completion of the work has been extended up
to 31-5-2001.

Demand 3: Karnataka Government should accept Tamil as additional language of administration.

Response: As per the GOI Instructions, Karnataka has issued orders on 20-5-1999 that where linguistic
minorities constitute more than 15 per cent of the population, Government notices, Orders and rules shall
be issued in the language of the minorities as well.

Demand 4: Unveiling of Tiruvalluvar statue at Bangalore.

Response: Statues of Tiruvalluvar and Sarvajna will be installed and unveiled at Bangalore and Chennai
respectively with the participation of both the Chief Ministers.

Demand 5: Vacation of stay issued by High Court against Justice Sathasivam Commission to inquire into the
atrocities by the task forces of the two States. Compensation for victims and punishment for those held
guilty by the Commission.
Response: Karnataka Government will take steps to have the stay vacated.

Demand 6: Innocent persons languishing in Karnataka Jails should be released.

Response: TADA charges will be dropped immediately facilitating release of the prisoners.

Demand 7: Compensation for the families of nine dalits killed in Karnataka.

Response: Will be considered favourably after collecting particulars.

Demand 8: Minimum procurement price of Rs 15 per kg for tea leaves grown in the Nilgiris.
Response: A series of steps taken by the Central and the State Governments has already brought about
substantial increase in the price of tea leaves from Rs 4.50 to Rs 9.50

Demand 9: Five persons now in Tamil Nadu prisons should be released.

Response: Will be considered favourably.

Demand 10: Minimum daily wage of Rs 150 for coffee and tea estate workers in Tamil Nadu and Karnataka.

Response: Estate workers in Tamil Nadu get a minimum wage of Rs 74.62, inclusive of various allowances
the wages add up to Rs 139 per day. Further increase through negotiations would also be considered.”

On 11-8-2000 Gopal returned to Chennai with a written message and a video cassette that contained an
elaboration of two earlier demands and two new demands. The elaboration related to the release of
prisoners in the State of Karnataka, which was reiterated, and the payment of compensation based on
the Sathasivam Commission Report. The new demands and the responses thereto were as follows:

Additional Demand 1: Tamil should be the compulsory medium of instruction till Standard 10 in Tamil
Nadu. Tamil should be declared an official language.
Response: The Government move to make Tamil the medium of instruction till Standard 5 has been stayed
by the High Court and an appeal has been preferred in the Supreme Court.

Additional Demand 2: Compensation of Rs 10 lakhs each for innocent rape victims of Vachathi and
Chinnampathi in Tamil Nadu.

Response: Compensation has already been paid on rates determined by court/commission.”

⮚ On 10-8-2000 an application was filed by the Special Public Prosecutor under the provisions of Section
321 of the Criminal Procedure Code in fourteen cases (Special Cases Nos. 44, 63, 66 and 67 of 1994,
119 of 1995, 11,12, 13 and 14 of 1997, 3,19, 20 and 21 of 1998 and 79 of 1999) being heard by the
Designated Court at Mysore. The cases were filed under the provisions of the Terrorist and Disruptive
Activities (Prevention) Act and other penal enactments against Veerappan and a large number of his
alleged associates. The application needs to be reproduced in extenso:

It is submitted by the Special Public Prosecutor as follows: A charge-sheet has been filed against the
accused for the offences punishable under Sections 143, 147, 148, 341, 342, 120-B, 326, 307, 302, 396
read with 149 IPC and under Sections 3, 4 and 5 of the Indian Explosives Act, and under Sections 3 and 25
of the Arms Act, and also for the offences punishable under Sections 3, 4 and 5 of the TADA Act, alleging
that on the afternoon of 14-8-1992 Veerappan along with his associates attacked the then Superintendent
of Police, Mysore District, Shri Harikrishna, and the then SI of Police of M.M. Hills, Shri Shakeel Ahamed and
other police personnel who had been there to nab Veerappan on the information furnished by the informant
Kamala Naika, who also died in the incident, and had also resulted in the killing of six police personnel and
injuring others and damaging the vehicles and also removing of the weapons and the wireless set belonging
to the Police Department.

● There are in all 166 accused persons and out of which 30 accused are in custody and 48 accused are on
bail. It is submitted by the Prosecutor that the accused who are on bail have not repeated the offences
and they have also not involved themselves in any similar offences and terrorist activity have not been
noticed recently in the area.

● That in order to restore the peace and normalcy in the border area and among the people living in the
border area and to maintain peace among the public in general and inhabitants of the particular
village, the Prosecutor has decided to withdraw from the prosecution the charges under the offences of
the provision punishable under Sections 3, 4 and 5 of TADA.

● That the trial regarding other offences are being continued and the charges under the Arms Act and the
Explosive Substances Act, to certain extent cover the provisions of Sections 3 and 4 of TADA. Therefore,
no injustice would be caused if the Prosecutor withdraws the charges for the offences punishable under
Sections 3, 4 and 5 of the TADA Act.

● That as a matter of policy, since the Central Government has already withdrawn the Central enactment,
no purpose would be served immediately by the prosecution for the offences punishable under Sections
3, 4 and 5 of the TADA Act.

● That in the larger interest of the State and in order to avoid any unpleasant situation in the border
area, it is necessary to withdraw from prosecution of the charges under Sections 3, 4 and 5 of the
TADA Act. It is submitted by the Prosecutor that no injustice would be caused to the State by
withdrawing from the prosecution, the offences punishable under Sections 3, 4 and 5 of the TADA Act.

Therefore, it is submitted by the Prosecutor that the Hon’ble Court be pleased to accord consent to the
Prosecutor to withdraw the charges for the offences punishable under Sections 3, 4 and 5 of the TADA Act,
against the accused and the case may be withdrawn from the Designated Court and be transferred to the
regular Sessions Court for the continuance of the trial for the other offences in the interest of justice.”

Appellant Statement of Opposition against the Withdrawal of Application filed by the Special Prosecutor:
The appellant in Criminal Appeals Nos. 741-43 of 2000 before us opposed the Special Public Prosecutor’s
application. He is the father of Shakeel Ahamed who, as the application recites, had, allegedly, been killed
by Veerappan and his associates. The appellant’s statement of opposition referred to the abduction of
Rajkumar and alleged:

● that, consequent thereupon, the Government of the State of Karnataka had yielded to the demands of
Veerappan and had issued notifications that it would withdraw all cases against Veerappan and his
associates, and this had been widely publicised by the media. The statement of opposition submitted
that no cogent reasons had been given for the decision to drop the TADA cases.

● that it was the duty of the Special Public Prosecutor to inform the court of the reasons prompting him
to withdraw the prosecution and of the court to apprise itself of these reasons. The Special Public
Prosecutor rejoined to the statement of opposition by contending that all cases against Veerappan and
his associates were not being withdrawn, and they would be prosecuted. He, therefore, denied the
submission in the statement of opposition that the Government of the State of Karnataka had yielded
to blackmail by Veerappan.

The Special Public Prosecutor’s application was made when the trial of the cases to which it related was in
progress and the evidence of 51 witnesses had been recorded. The trial had been going on until 30-7-2000,
on the night of which Rajkumar was abducted.

Relevant Extracts from the Order of the Special Judge Designated on the Application of the Special Public
Prosecutor:
The Principal District and Sessions Judge, Mysore, was the Special Judge designated for the trial of TADA
offences. (He is now referred to as “the learned Judge”.) On 19-8-2000 the learned Judge passed on the
Special Public Prosecutor’s application the order that is impugned in these appeals. He set out in paras 2 to
6 the details of the cases before him, thus:

Para 2. The Special Cases Nos. 44 of 1994, 11 of 1997 and 3 of 1998 arise out of a chargesheet in Crime No.
70 of 1992 of Ramapura Police Station against Veerappan and others for offences under Sections 143 147,
148, 341, 342, 120-B, 326, 307, 302, 396 read with Section 149 IPC, Sections 3, 4 and 5 of the Indian
Explosives Act, Sections 3 and 25 of the Arms Act and also under Sections 3, 4 and 5 of the Terrorist and
Disruptive Activities (Prevention) Act, alleging that on the afternoon of 14-8-1992, Veerappan and his
associates had attacked the then Superintendent of Police, Mysore, Shri Harikrishna and the then
Sub-Inspector of Police Shri Shakeel Ahamed and other police personnels, who had been there to nab
Veerappan and in the encounter, six police personnel were killed and many of them were injured and
vehicles were damaged and the weapons and wireless set belonging to the Police Department were taken
away. The charge-sheet had been laid against 168 persons, of them 30 accused are in custody and 45 are
on bail and rest of them are shown as absconding.

Para 3: The Special Cases Nos. 63 of 1994, 13 of 1997 and 20 of 1998 arise out of a chargesheet filed in
Crime No. 41 of 1992 of Ramapura Police Station against Veerappan and 162 others alleging that on the
night of 19/20-5-1992, the accused had attacked Rampura Police Station and caused the death of five
police personnel and caused injuries to other police staff, thereby the accused are said to have committed
offences punishable under Sections 302, 307, 324, 326, 396 read with Section 149 IPC, Sections 3 and 25 of
the Indian Arms Act, Sections 3, 4 and 5 of the Terrorist and Disruptive Activities (Prevention) Act. Of the
said accused, 46 accused are on bail and 30 accused are in custody and rest of them have been shown to be
absconding.

Para 4: The Special Cases Nos. 66 of 1994, 14 of 1997 and 21 of 1998 arise out of a chargesheet submitted
by M.M. Hills Police in Crl. No. 12 of 1993 alleging that the accused had attacked police personnel on
24-5-1993 near Rangaswamy Voddu on M.M HillsTalabetta Road, near 18/28 S: Curve and in the attack the
Superintendent of Police Shri Gopal Hosur and his driver Ravi were injured and six police personnel were
killed and four police personnel were injured and thereby the accused are said to have committed offences
punishable under Sections 143, 148, 120-B, 341, 353, 395, 302, 109, 114 read with Section 149 IPC,
Sections 3, 4 and 5 of the Indian Explosives Act, Sections 3 and 25 of the Indian Arms Act and also under
Sections 3, 4 and 5 of the Terrorist and Disruptive Activities (Prevention) Act. The charge-sheet has been
submitted against 98 accused persons. Of them, 7 accused are on bail, 26 accused are in custody and others
are shown to be absconding.

Para 5: The Special Cases Nos. 67 of 1994, 12 of 1997 and 19 of 1998 arise out of a chargesheet submitted
by M.M. Hills Police against 143 accused persons alleging that on 9-4- 1993 at Sorekayee Madu the accused
had attacked and killed 22 persons belonging to both the Police and Forest Department and their
informants by planting bombs in the forest area of Palar and thereby the accused are said to have
committed offences punishable under Sections 143, 147, 148, 341, 342, 120-B, 324, 326, 307, 302 and 396
read with Section 149 IPC, Sections 3 and 25 of the Arms Act, Sections 3, 4 and 5 of the Indian Explosives
Substances Act and also Sections 3, 4 and 5 of the Terrorist and Disruptive Activities (Prevention) Act. Of
the 143 accused persons, 17 accused are on bail, 33 accused are in custody and rest of them are shown to
be absconding.

Para 6: The Special Cases Nos. 119 of 1995 and 79 of 1999 arise out of a charge-sheet submitted by
Ramapura Police in Crl No. 5 of 1994 against 17 accused persons alleging that on 17-1-1994 at Changadi
Forest, the accused had attacked staff of special task force and informants of the Police and Forest
Department and killing one police personnel and one gunman and thereby the accused are said to have
committed offences under Sections 143, 147, 148, 326, 307, 302 read with Section 149 IPC, Sections 3 and
25 of the Indian Arms Act and also Sections 3, 4 and 5 of the Terrorist and Disruptive Activities
(Prevention) Act.

⮚ The learned Judge then noted that the trial had begun and many material witnesses had been
examined. He referred to the pleadings in the application before him and the arguments of the Special
Public Prosecutor; among them, “there is no terrorist activity in the area. The instant application has
been filed with an intention to maintain peace and tranquillity. He has not been directed by the
State. It is the act of the Public Prosecutor only”. The learned Judge opined that the present appellant
could not be said to be an aggrieved party who could be permitted to raise objections to the
application.

⮚ He then dealt with precedents relevant to the application and concluded that his power was limited. It
was only a supervisory power over the action of the Special Public Prosecutor. The function of the
court was to prevent abuse. Its duty was to see, in furtherance of justice, that the permission was not
sought on grounds extraneous to the interest of justice. Permission to withdraw could only be
granted if the court was satisfied on the materials placed before it that its grant subserved the
administration of justice and it was not being sought covertly, with an ulterior purpose unconnected
with vindication of the law, which the executive organs were duty-bound to further and maintain.

⮚ The learned Judge stated that it was seen from the material on record that terrorist activity had not
been noticed recently in the area. The learned Judge did not accept the contention of the Special Public
Prosecutor that, since the TADA Act had been withdrawn, the permission should be granted. The
learned Judge noted that it had been mentioned in the statement of objections that Rajkumar had
been abducted by the prime accused before him; as such, he said that he would have to take notice of
this aspect. He mentioned that the trial of one of the special cases involved in the application had been
posted for hearing on 30-7-2000 but, on account of the changed situation, he had felt “that there was
a likelihood of danger to the person of accused, who are in custody, if they are insisted to be produced
before the court on the said hearing dates”. The learned Judge stated that he was satisfied that the
Special Public Prosecutor had applied his mind in filing the application.
In view of the grounds and circumstances mentioned by the Special Public Prosecutor, he was satisfied, on
the materials placed before him,that the grant of permission to withdraw subserves the administration of
justice and the permission had not been sought covertly with an ulterior purpose unconnected with the
vindication of law, which the executive organs are duty-bound to further and maintain.

⮚ The learned Judge observed that things could have been viewed from a different angle altogether if the
Special Public Prosecutor had sought for blanket withdrawal of the cases against the accused; but this
was not the situation in the case on hand for the case against the accused for other offences would be
proceeded with.

Accordingly, the learned Judge allowed the application, according consent to withdrawal of the charges
relating to offences punishable under the TADA Act against the accused. He ordered, “the accused in
custody and on bail, facing trial for offences under the TADA Act stand acquitted/discharged as the case
may be”. He transferred the cases to the Court of the Principal District and Sessions Judge, Mysore for
disposal in accordance with law of all charges other than under the TADA Act

⮚ The accused who were in custody and were discharged by the Special Court in respect of TADA charges
against them immediately filed an application for bail before the Court of District and Sessions Judge,
Mysore. On 28-8-2000, the learned Judge, now as Principal District and Sessions Judge, noted in his
order that learned counsel for the present appellant had informed him that the appellant had filed a
petition for special leave to appeal against the order on the Special Public Prosecutor’s application
which was to be taken up for hearing on the next day and that learned counsel had prayed that orders
on the bail petition should not be pronounced until thereafter. The Special Public Prosecutor had
submitted in reply that the special leave petition related only to the withdrawal of charges under the
TADA Act and the passing of orders on the bail petitions would not be affected thereby. The learned
Judge found that no order of stay had been passed by this Court, and, therefore, it overruled the
prayer and passed orders on the bail petitions. In the course thereof, the learned Judge referred to
“the urgency of the matter”. The learned Judge found force in the contention on behalf of the accused
that there had been a change in the circumstances in view of the fact that the Designated Court had
permitted the State to withdraw TADA charges against them. Having carefully gone through the
material on record and the nature of the accusations made against the accused and the evidence
projected, it was the learned Judge’s opinion that

there is no prima facie case made out against the accused for the said offence. Having regard to the facts
and circumstances, the social status of the accused and other relevant factors, the court is of the opinion
that the bail petition will have to be allowed on the following terms in the ends of justice
The accused were directed to be released on bail on each of them executing a bond for Rs 10,000 with one
surety for the like sum or, in the alternative, on each furnishing cash security of Rs 20,000, on the conditions
that they would appear before the court regularly, as and when required, they would not tamper with the
prosecution witnesses and they would not commit any other offence.

The order dated 19-8-2000 on the Special Public Prosecutor’s application is impugned in the appeals
before us.

On 14-8-2000: The Government of the State of Tamil Nadu issued a Government Order directing that
charges against one Radio Venkatesan in respect of two cases registered against him under the provisions
of the TADA (Prevention) Act be withdrawn “in the public interest”. The Inspector General of Police
Intelligence, Chennai was directed to take necessary action accordingly.
On 16-8-2000: The Special Public Prosecutor before the Designated Court (TADA Act) at Chennai made two
applications to that court under the provisions of Section 321 of the Code. They stated that Radio
Venkatesan was charged before the Designated Court in cases arising under the TADA Act, the Explosive
Substances Act, the Indian Penal Code and the Arms Act and the cases were pending for framing charges.
The applications added it is further submitted:
⮚ that after perusal of records I am satisfied that under the new change of circumstances and also in the
public interest I hereby request this Hon’ble Court to permit me to withdraw the charges under Sections
3(1), 3(3), 4(1) and 5 of the Tamil Nadu Terrorist and Disruptive Activities Preventive Act, 1987
against the accused Venkatesan @ Radio Venkatesan and thus render justice. A copy of the
Government Order of 14-8-2000 was submitted with the applications.

On 16-8- 2000: The Designated Court, Chennai passed an order on the applications. It noted: The
Government has passed an order stating that TADA offences against the accused Venkatesan @ Radio
Venkatesan is withdrawn in the public interest. There is no mention in the Government Order for
withdrawal of cases against the said accused under IPC offences and other laws. The court referred to the
applications before it and the provisions of Section 321 which permitted withdrawal from prosecution of
one or more offences when the accused was charged with more than one offence. It then stated:

So far as this case is concerned the Government has passed the order to withdraw the TADA case alone as
against the accused Venkatesan @ Radio Venkatesan, who is involved in Crl. No. 50 of 1993 and Crl. No. 346
of 1993. As this application has been filed by the learned Special Public Prosecutor on the basis of the
Government Order referred above, permission is granted to withdraw the TADA case against the accused
Venkatesan @ Radio Venkatesan and he has been discharged from the various offences of the TADA Act.
The applications were allowed accordingly.

Insofar as four detenus under the National Security Act were concerned, the Government of the State of
Tamil Nadu passed orders on 14-8-2000. As an example, that relating to Sathyamoorthy is reproduced
below:

1. Kannada film actor Dr Rajkumar and few others were kidnapped by sandalwood brigand Veerappan
and his men in the night of 30-7-2000. He has made 10 demands to release them from hostage. One of the
demands is to release 5 prisoners from the various prisons in Tamil Nadu. Thiru Sathyamoorthy @ Sathya
@ Kandasamy @ Neelan, is one among the NSA detenus mentioned above. A tense situation is prevailing
due to the kidnapping of Kannada film actor Dr Rajkumar. There is an apprehension that in case any harm is
caused to him, there may be a backlash on Tamils in Karnataka. In order to avoid such a situation and in the
public interest, the Government has decided to revoke the order of detention passed by the Collector and
District Magistrate, Erode District, in his proceedings first read above, under NSA against Thiru
Sathyamoorthy @ Sathya @Kandasamy @ Neelan and to release him from detention under NSA.

2. NOW THEREFORE in exercise of the powers conferred by clause (a) of sub-section (1) of Section 14
of the National Security Act, 1980, the Governor of Tamil Nadu hereby revokes the order of detention
made by the District Collector and District Magistrate, Erode District, against Thiru Sathyamoorthy @
Sathya @ Kandasamy @ Neelan, s/o Thiru Nataraja Muthiraiyar, in the proceedings first read above and
direct that the said Thiru Sathyamoorthy @ Sathya @ Kandasamy @ Neelan, be released from detention
under the said Act forthwith. This order applies only in respect of detention under the National Security
Act.

The aforesaid orders of the Government of the State of Tamil Nadu and the order of the Designated
Court, Chennai are challenged in the two public interest petitions before us.

In the appeals aforementioned, this Court passed an order on 29-8-2000 directing that none of the
respondents accused therein should be released, on bail or otherwise, pending further orders. Observing
the spirit of this order, those who are the beneficiaries of the aforesaid orders of the Government and
Designated Court of the State of Tamil Nadu have also not been released.
Supreme Court on Withdrawal of Prosecution [under Section 321]
The law as it stands today in relation to applications under Section 321 is laid down by the majority
judgment delivered by Khalid, J. in the Constitution Bench decision of this Court in Sheonandan Paswan v.
State of Bihar [(1987) 1 SCC 288]. It is held therein that
◆ when an application under Section 321 is made, it is not necessary for the court to assess the evidence
to discover whether the case would end in conviction or acquittal. What the court has to see is
whether the application is made in good faith, in the interest of public policy and justice and not to
thwart or stifle the process of law.
◆ The court, after considering the facts of the case, has to see whether the application suffers from such
improprieties or illegalities as would cause manifest injustice if consent was given.
◆ When the Public Prosecutor makes an application for withdrawal after taking into consideration all the
material before him, the court must exercise its judicial discretion by considering such material and, on
such consideration, must either give consent or decline consent.
◆ The section should not be construed to mean that the court has to give a detailed reasoned order
when it gives consent. If, on a reading of the order giving consent, a higher court is satisfied that such
consent was given on an overall consideration of the material available, the order giving consent has
necessarily to be upheld. Section 321 contemplates consent by the court in a supervisory and not an
adjudicatory manner.
◆ What the court must ensure is that the application for withdrawal has been properly made, after
independent consideration by the Public Prosecutor and in furtherance of public interest. Section 321
enables the Public Prosecutor to withdraw from the prosecution of any accused. The discretion
exercisable under Section 321 is fettered only by a consent from the court on a consideration of the
material before it. What is necessary to satisfy the section is to see that the Public Prosecutor has acted
in good faith and the exercise of discretion by him is proper

The law, therefore, is that though the Government may have ordered, directed or asked a Public Prosecutor
to withdraw from a prosecution, it is for the Public Prosecutor to apply his mind to all the relevant material
and, in good faith, to be satisfied thereon that the public interest will be served by his withdrawal from the
prosecution. In turn, the court has to be satisfied, after considering all that material, that the Public
Prosecutor has applied his mind independently thereto, that the Public Prosecutor, acting in good faith, is of
the opinion that his withdrawal from the prosecution is in the public interest, and that such withdrawal will
not stifle or thwart the process of law or cause manifest injustice.

⮚ It must follow that the application under Section 321 must aver that the Public Prosecutor is, in good
faith, satisfied, on consideration of all relevant material, that his withdrawal from the prosecution is in
the public interest and it will not stifle or thwart the process of law or cause injustice. The material that
the Public Prosecutor has considered must be set out, briefly but concisely, in the application or in an
affidavit annexed to the application or, in a given case, placed before the court, with its permission, in a
sealed envelope.
⮚ The court has to give an informed consent. It must be satisfied that this material can reasonably lead to
the conclusion that the withdrawal of the Public Prosecutor from the prosecution will serve the public
interest; but it is not for the court to weigh the material.
⮚ The court must be satisfied that the Public Prosecutor has considered the material and, in good faith,
reached the conclusion that his withdrawal from the prosecution will serve the public interest.
⮚ The court must also consider whether the grant of consent may thwart or stifle the course of law or
result in manifest injustice.
If, upon such consideration, the court accords consent, it must make such order on the application as will
indicate to a higher court that it has done all that the law requires it to do before granting consent.

The applications under Section 321 made by the Special Public Prosecutor before the Designated Court at
Mysore submitted: that the Special Public Prosecutor had decided to withdraw from prosecution the
charges under the TADA Act “in order to restore the peace and normalcy in the border area and among the
people living in the border area and to maintain peace among the public in general and inhabitants of the
particular village” and that such withdrawal from prosecution was necessary “in the larger interest of the
State and in order to avoid any unpleasant situation in the border area”.

⮚ The applications did not state why the Special Public Prosecutor apprehended a disturbance of the
peace and normalcy of “the border area” or the “particular village”, nor was any material in this behalf,
or a summary thereof, set out.

⮚ There was, therefore, no basis laid in the applications upon which the learned Judge presiding over the
Designated Court could conclude that the Special Public Prosecutor had applied his mind to the
relevant material and exercised discretion in good faith and that the withdrawal would not stifle or
thwart the course of the law and cause manifest injustice. The order of the learned Judge noted that
the statement of opposition filed by the present appellant averred that Rajkumar had been abducted
by Veerappan and it said that he would have to take notice of this aspect. The order did not note that
the statement of opposition also said that, consequent upon such abduction, the State of Karnataka
had yielded to the demands made by Veerappan and had issued notifications that it would withdraw
all cases against Veerappan and his associates.

⮚ No query in this regard was made by the learned Judge with the Special Public Prosecutor. The learned
Judge said that he was satisfied on the material placed before him that the grant of permission to
withdraw subserved the administration of justice and it had not been sought covertly, but he did not
state what those materials were. It is not the case of anybody that any materials were placed before
the learned Judge upon the basis of which he could have been satisfied that the Special Public
Prosecutor had applied his mind thereto and had reached, in good faith, the conclusion that the
withdrawal he sought was necessary for the reasons he pleaded. The learned Judge placed on record,
as he called it, the decision of this Court in the case of Sheonandan Paswan, referred to above, but he
did not appreciate what it required of a Public Prosecutor and of a court in regard of Section 321, and
he did not follow it.
The order granting consent on the Special Public Prosecutor’s application, therefore, does not meet the
requirements of Section 321 and is bad in law.

Decision of Supreme Court on the Impugned Order of Designated Court at Chennai:

⮚ The applications under Section 321 filed before the Designated Court at Chennai sought consent to the
withdrawal from TADA prosecution against Venkatesan @ Radio Venkatesan after “perusal of records”
by the Special Public Prosecutor, and they submitted that “under the new change of circumstances
and also in the public interest the permission was sought”. What the record was that the Special
Public Prosecutor had perused was not set out nor was it annexed nor a summary thereof recited.
What the changed circumstances were was not set out. The order on the applications was founded
only upon the relevant Government Order, thus:So far as this case is concerned the Government has
passed order to withdraw the TADA case alone as against the accused Venkatesan @ Radio
Venkatesan, who is involved in Crl. Nos. 50 and 346 of 1993. As this application has been filed by the
learned Special Public Prosecutor on the basis of the Government Order referred above, permission is
granted to withdraw the TADA case against the accused Venkatesan @ Radio Venkatesan.…

The order, therefore, was not passed after meeting the requirements of Section 321, and it is bad in law.

It was submitted by the learned Solicitor General, appearing for the State of Karnataka, that:
We, sitting in appeal, should consider the grant of consent under Section 321 based upon the state of
knowledge of the Special Public Prosecutor on the date on which he made the application before the
Designated Court at Mysore. In this behalf, two affidavits, both dated 19-10-2000, were filed. One affidavit
is made by the Minister of Law and Parliamentary Affairs of the State of Karnataka and the other by the
Special Public Prosecutor.

The affidavit of the Minister for Law states:

2. That I have been party to most of the decisions which have been taken in this matter, which has
culminated in the issuance of the Government Order dated 8-8-2000 requesting the Special Public
Prosecutor, in charge of the TADA cases pending before the Designated Court at Mysore against Veerappan
and his associates, to withdraw the charges under TADA.

3. I also held a meeting with the Special Public Prosecutor in charge of the cases, on 5-8- 2000 in my
office in Vidhan Soudha, Bangalore. The discussions held during the meeting and the persons present have
already been stated in the affidavit of Shri Ashwini Kumar Joshi which I confirm.

4. Prior to this meeting, the problems arising out of the abduction of Dr Rajkumar, the options
available to the State Government to deal with this crisis and the responses of the Government publicly
announced to Veerappan’s demands, have all been discussed at various levels including in informal
meetings held between me, the Home Minister and the Chief Minister as well as the Cabinet meetings
which have been held frequently during the period 1-8-2000 to 8-8-2000.

5. I submit that one option, which the Government had always considered relates to the use of force
for the release of Dr Rajkumar. While considering this option and evaluation of the risk factors, as advised
by the senior officials at the level of Home Secretary, and the Chief Secretary as well as our own experience
in the past were also considered. After detailed discussions on more that one occasion, the option of use of
force in the present circumstances and as at present advised, was ruled out in favour of acceding to some
of his demands.

6. The demands made by Veerappan were discussed informally at various levels of the Secretaries, at
the level of the Ministers and also informally in the Cabinet.

7. I submit that the Government made public its response to Veerappan’s demands in which it
indicated, inter alia, that only TADA charges (and not all cases) against the 51 accused would be withdrawn.

8. I submit that the matter of withdrawal of TADA charges had been informally discussed in the
Cabinet on 3rd August and the final decision taken between 4-8-2000/5-8-2000 between myself, the Home
Minister and the Chief Minister of Karnataka.

9. I respectfully state that it was after considering the options and the likely repercussions in future of
succumbing to his demands (i.e. the signals sent by agreeing to such demands, and the fact that it may
encourage further such acts) and after weighing it against the problem apprehended if any harm were to
be caused to Dr Rajkumar, that this decision to withdraw TADA charges was taken.

10. In the informal Cabinet meeting held on 3-8-2000, the Cabinet had authorised the Chief Minister,
the Home Minister and myself as well as the Chief Secretary to take a final decision in this matter and
pursuant to this, we took a final decision between 4-8- 2000/5-8-2000.”

The decision of the Government of the State of Karnataka, therefore, was that, in view of its
apprehension of the unrest that would follow if any harm were to come to Rajkumar, it was better to
yield to Veerappan’s demand and to withdraw TADA charges against Veerappan and his associates,
including the respondents-accused. In this context, the Special Public Prosecutor should have considered
and answered the following questions for himself before he decided to exercise his discretion in favour
of such withdrawal from prosecution of TADA charges.
1. Was there material to show that the police and intelligence authorities and the State Government
had a reasonable apprehension of such civil disturbances as would justify the dropping of charges against
Veerappan and others accused of TADA offences and the release on bail of those in custody in respect of
the other offences they were charged with?

2. What was the assessment of the police and intelligence authorities and of the State Government of
the risk of leaving Veerappan free to commit crimes in future, and how did it weigh against the risk to
Rajkumar’s life and the likely consequent civil disturbances?

3. What was the likely effect on the morale of the law-enforcement agencies?

4. What was the likelihood of reprisals against the many witnesses who had already deposed against
the respondents-accused?

5. Was there any material to suggest that Veerappan would release Rajkumar when some of
Veerappan’s demands were not to be met at all?

6. When the demand was to release innocent persons languishing in the Karnataka Jails, was there any
material to suggest that Veerappan would be satisfied with the release of only the respondents-accused?

7. In any event, was there any material to suggest that after the respondents-accused had secured
their discharge from TADA charges and bail on the other charges Veerappan would release Rajkumar?

8. Given that the Government of the States of Karnataka and Tamil Nadu had not for 10 years
apprehended Veerappan and brought him to justice, was this a ploy adopted by them to keep Veerappan
out of the clutches of the law?

The affidavit of the Special Public Prosecutor states: On 5-8-2000, I was called by the Office of the Hon’ble
Law Minister for a meeting in his chamber in Vidhan Soudha, Bangalore.

1. When I went to the meeting, the Special Secretary (Law) and the Director of Prosecutions as well as
the Additional Director General of Police (Intelligence) were present. We discussed the matter relating to
withdrawal of TADA charges against these 51 accused at considerable length for over 2 hours. In the course
of the discussion, I recall that I was informed, inter alia, that the negotiations had reached a point where it
was felt that withdrawal of TADA charges against these 51 accused would secure the release of Dr
Rajkumar. I was informed that the Government had intelligence reports and that if any harm were to be
caused to Dr Rajkumar, it would lead to problems between the two linguistic communities in the State. I
was informed that apprehending trouble, schools and colleges had been declared closed immediately in
the whole State and they were closed up to 5-8-2000. I was informed of the incidents, which had occurred
in Bangalore City on 31-7-2000 as an aftermath of this incident of kidnapping also showed that the
abduction was being construed by the people as an issue between two communities. The character of the
incident showed that these people were ready to indulge in acts of violence. I was also informed that acting
on intelligence reports, the Government had taken steps to arrange for deployment of central forces, such
as the Rapid Action Force, Armed Reserve Police, and Paramilitary Force from the neighbouring States and
some steps had already been taken and others were likely to be taken.

2. I was informed by the Hon’ble Law Minister that the Cabinet had also informally discussed this
matter in its urgent meeting held on 3-8-2000 and that a decision had been taken to take appropriate steps
and on that basis the Government would formally request me to take appropriate steps to withdraw TADA
charges.
3. On 8-8-2000 the GO issued by the Government along with its covering letter was duly forwarded to
me through the Law Department. A copy of the said GO and the connected documents are collectively
annexed hereto and marked as Annexure A.

4. Based on my understanding of the situation, which in turn, was based on the aforesaid material,
and the information which had been given to me which I believed to be true, I decided that it would be in
the interest of public peace and maintenance of law and order in the State to withdraw the charges against
the 51 TADA detenus.

5. I respectfully submit that the information which had been provided to me by the Additional Director
General of Police (Intelligence), the Hon’ble Law Minister and others present in the meeting as well as my
own knowledge of local events (being a resident of Mysore for 27 years and having witnessed the problems
which had resulted after the Cauvery riots), I felt there was substance in the Government’s request that any
such step which could secure the release of Dr Rajkumar would be a step to protect public peace. I felt that
if withdrawal of TADA charges which would enable the accused to file necessary bail applications and their
consequent release on bail could preserve amity between the two communities, it would outweigh the
likely problems which would arise on the release of these 51. In arriving at this decision that I was
influenced by the fact that the 73 co-accused who had already been enlarged on bail (by the court) had
complied with the bail conditions which suggested that they had not gone back to their old ways. There
were 12 women, 3 old persons of 70 years age and 3 persons aged between 55-60 amongst TADA accused.
I also considered the facts that they had been in the jail for six to seven years.

6. I was also informed in the course of the aforesaid meetings that in other districts also some
incidents have been reported. I believed the statement as I had no reason to doubt its credibility. I have
subsequently ascertained the particulars of the cases which are hereto annexed and marked as Annexure C.

⮚ The affidavit of the Special Public Prosecutor reveals that he was “informed” that the Government of
the State of Karnataka had intelligence reports that if any harm were to be caused to Rajkumar, it
would lead to problems between two linguistic communities. Clearly, he was not shown the intelligence
reports. Throughout the affidavit the phrase “I was informed” recurs. There is no statement therein
which shows that the Special Public Prosecutor had the opportunity of assessing the situation for
himself by reading the primary material and deciding, upon the basis thereof, whether he should
exercise his discretion in favour of the withdrawal of TADA charges.
Acting upon the information, which he could not verify, the Special Public Prosecutor could not be
satisfied that such withdrawal was in the public interest and that it would not thwart or stifle the process
of the law or cause manifest injustice. The Special Public Prosecutor, in fact, acted only upon the
instructions of the Government of the State of Karnataka. He, therefore, did not follow the requirement
of the law that he be satisfied and the consent he sought under Section 321 cannot be granted by this
Court.

⮚ The affidavit of the Special Public Prosecutor speaks of “withdrawal of TADA charges which would
enable the accused to file necessary bail applications and their consequent release on bail .…” It is,
thus, clear that what was envisaged by the Government of the State of Karnataka and the Special
Public Prosecutor was a package which comprised of the withdrawal of TADA charges against the
respondents-accused and their release on bail on applications filed by them. This indicates complicity
with the respondents-accused.

⮚ It will have been noticed that stress was laid by the Special Public Prosecutor in his application under
Section 321 on the fact that the prosecutions against the respondents-accused on charges other than
under the TADA Act would continue, and this was noted in the order of the Designated Court. The
Designated Court was not told either in the application or thereafter that the Government of the State
 of Karnataka and the Special Public Prosecutor had in mind that the respondents-accused would file
bail applications subsequent to the order under Section 321 which would not be opposed.

⮚ There can, in the circumstances, be little doubt that after their release on bail the respondents-accused
were not expected to attend the court to answer the remaining charges against them and that the
stress laid as aforesaid was intended to mislead the Designated Court. We deprecate the conduct of
the Government of the State of Karnataka and the Special Public Prosecutor in this behalf.
We deem it appropriate, in the facts and circumstances, to set aside the orders granting bail to the
respondents-accused.

Having set aside the order under Section 321 passed by the Designated Court at Chennai in the matter of
Radio Venkatesan, the Government of the State of Tamil Nadu cannot comply with Veerappan’s demand
to release the five prisoners from its jails. It is appropriate in the circumstances to set aside the orders of
the Government of the State of Tamil Nadu under the National Security Act releasing the other four
persons from detention.

⮚ The questions that we have posed above were put to the learned counsel for the State of Karnataka in
the context of the State Government’s decision to concede to the demand of Veerappan that prisoners
in Karnataka Jails should be released. The answers do not satisfy us.
⮚ We do not find on the record, including that placed before us in sealed covers, material that could give
rise to a reasonable apprehension of such civil disturbances as justifies the decision to drop TADA
charges against Veerappan and his associates, including the respondents accused, and to release the
latter on bail. There is nothing on the record which suggests that the possibility of reprisals against the
witnesses who have already deposed against the respondents-accused or the effect on the morale of
the law-enforcement agencies were considered before it was decided to release the
respondents-accused.
⮚ There is also nothing to suggest that there was reason to proceed upon the basis that Veerappan
would release Rajkumar when his demands were not being met in full. The Government of the State of
Karnataka would appear to be unaware that once the respondents-accused were discharged from
TADA charges, the deal was done; and that when they were released on bail they could not be
detained further, whether or not Rajkumar was released in exchange.
While we cannot assert that conceding to Veerappan’s demands was a ploy of the Government of the
State of Karnataka to keep him out of the clutches of the law, we do find that it acted in panic and haste
and without thinking things through in doing so. That this is so, is clear from the fact that the demands
were conceded overnight and also from the fact that the Government of the State of Karnataka did not
ascertain the legal position that it was not for it but for the court to decide upon the release of persons
facing criminal prosecutions

⮚ What causes us the gravest disquiet is that when, not so very long back, as the record shows, his gang
had been considerably reduced, Veerappan was not pursued and apprehended and now, as the
statements in the affidavit filed on behalf of the State of Tamil Nadu show, Veerappan is operating in
the forest that has been his hideout for 10 years or more along with secessionist Tamil elements. It
seems to us certain that Veerappan will continue with his life of crime and very likely that those crimes
will have anti-national objectives.

⮚ The Government of the State of Tamil Nadu had been apprised that Rajkumar faced the risk of being
kidnapped by Veerappan when he visited his farmhouse at Gajanoor. It knew that Rajkumar was
unlikely to give advance intimation of his visits: he had visited Gajanoor for the house-warming
ceremony of his new farmhouse in June 2000 without prior notice. To put it mildly, it would have been
prudent, in the circumstances, to post round the clock at Rajkumar’s farmhouse in Gajanoor one or
two policemen who could inform their local station house of his arrival there and thus ensure his
safety.
If not been for his appeal, a miscarriage of justice would have become a fait accompli. The
respondents-accused may have individual grounds for challenging the continued prosecution of TADA
charges against them or for bail. They shall be free to adopt proceedings in that regard, if so advised. Such
proceedings shall be decided on their merits and nothing that we have said in this judgment shall stand in
the way.

⮚ The appeals are allowed and the order under appeal, dated 19-8-2000, is set aside. The order dated
28-8-2000 passed by the Principal District and Sessions Judge, Mysore granting bail to the
respondents-accused is also set aside.

⮚ Further, the order of the Designated Court at Chennai dated 16-8-2000 is set aside. The orders of the
Government of the State of Tamil Nadu passed on 14-8-2000 under the National Security Act in respect
of Sathyamoorthy and three others revoking the orders of their detention under the National Security
Act are also set aside. The writ petitions were made absolute accordingly.

Y K. SABHARWAL, J. (concurring) - I have gone through the elaborate and learned judgment prepared by
my brother Justice S.P. Bharucha. I respectfully agree that the orders granting consent on the Special Public
Prosecutor’s applications do not meet the requirements of Section 321 of the Code and the orders are bad
in law. The questions raised in these matters have wide-ranging repercussions regarding the scope of
Section 321 and what is required to be considered by the Special Public Prosecutor before consent of court
is sought under Section 321 to withdraw from the prosecution of any person. I record these additional
reasons for concurring with the decision arrived at by Justice Bharucha and Justice Mohapatra.

The facts in detail have been set out in the judgment of Justice Bharucha and it is unnecessary to repeat
them except to briefly notice the broad, admitted and/or well established facts for appreciating the points
involved. They are as under:

(A) Veerappan is a dreaded criminal and despite various attempts over a number of years he could not
be apprehended.

(B) Veerappan and his associates are alleged to be responsible for killing of a large number of people
(over 100) including police personnel, forest personnel and others besides being responsible for causing
injuries to a large number of people and loss of property to the tune of crores of rupees.

(C) Veerappan and his gang members hatched a conspiracy to kill Superintendent of Police, Mysore
District, Shri Harikrishna and Sub-Inspector of Police of M.M. Hills Shri Shakeel Ahamed and other police
personnel who had been there to nab Veerappan with a view to terrorise the police force and to put fear of
death into the minds of policemen who were performing duty in attempting to arrest the wanted persons.

Various charges relating to murder, ambush, attempt to overawe the Government of Karnataka, killing of
elephants, smuggling of sandalwood etc. from the forest, possession of arms and ammunition, opening of
fire on task force personnel, have been framed against accused who are said to be the associates of
Veerappan. Cases filed against them are under the provisions of Terrorist and Disruptive Activities
(Prevention) Act (TADA) and other penal provisions, i.e., Indian Penal Code, Arms Act and Explosive
Substances Act.

(D) From their source information police authorities had learnt that Veerappan intended to kidnap
Rajkumar during his visit to his farmhouse in Gajanoor. More than a year back, Director General of Police of
the State of Karnataka had informed the Inspector General of Police of the State of Tamil Nadu requesting
for adequate security arrangements being made for Rajkumar whenever he visited the said farmhouse.

(E) Rajkumar is a very popular film actor of Karnataka. In case any harm is caused to Rajkumar, there
may be backlash on Tamils in Karnataka and it may lead to problems between the two linguistic
communities in the States. The people may indulge in acts of violence.

(F) On 30-7-2000, Veerappan abducted Rajkumar from his farmhouse along with three others. As of
today, Rajkumar and one Nagesh are still in Veerappan’s custody.

(G) No police protection or security was provided when Rajkumar visited the farmhouse.

(H) Soon after the abduction of Rajkumar and others, the two State Governments decided to accept
the demands of Veerappan to release those in respect of whom TADA charges and detention orders
under the National Security Act have been withdrawn. The decision was taken in the meeting held on
4-8-2000/5-8-2000 between the Chief Ministers of the two States.

(I) Applications under Section 321 Cr.P.C seeking consent of court to withdraw TADA charges were filed
to facilitate ultimately the release of accused persons from judicial custody so as to meet Veerappan’s
demand. The arrangement was that once TADA charges are withdrawn, the accused in judicial custody will
move bail applications in cases of offences under IPC and other penal enactments. The Public Prosecutor
will concede and will not oppose the grant of bail. The court will grant the bail and, thus, accused will come
out from judicial custody and, thus, this demand of Veerappan would be met.
Keeping in view the aforesaid facts, let me now revert to application filed under Section 321 Cr.P.C.

⮚ The application filed under Section 321 has been reproduced in extenso in the judgment of Justice
Bharucha. The application makes no reference whatsoever to any such arrangement as mentioned at
(I) above. The main ground stated in the application is that in order to restore the peace and normalcy
in the border area and among the people living in the border area and to maintain peace among the
public in general and inhabitants of the particular village, the Prosecutor has decided to withdraw from
the prosecution against the accused charged of the offences punishable under Sections 3, 4 and 5 of
TADA.
⮚ Abdul Karim, father of Shakeel Ahamed, opposed the application on various grounds, inter alia, stating
in the objection petition that if the cases against the hard core criminals are withdrawn or if they are
released on bail that may expose the families of the victims to terror unleashed by the TADA detenus,
who may unleash terror and jeopardise public order and cause detriment to the general public interest.
In reply to the said objections, instead of admitting that TADA charges are being withdrawn to facilitate
grant of bail, the stand taken by the Public Prosecutor, inter alia, is that Veerappan and his associates
will not be let out freely as they will be facing prosecution for other offences and, therefore, the
submission that the State Government has yielded to blackmail tactics of outlaw Veerappan is not
correct.

⮚ The Public Prosecutor has to be straight, forthright and honest and has to admit the arrangement and
inform the court that the real arrangement is to ultimately facilitate the release of these accused from
judicial custody by not opposing the bail applications after the withdrawal of TADA charges. The
arrangement as set out above has neither been disputed nor is it capable of being disputed.
⮚ It is well established that the real purpose for withdrawal of TADA charges was to facilitate the grant of
bail to the accused. In such circumstances, why the camouflage? Why is it not so stated in the
application filed under Section 321? In fact, it is a deceit. These are the questions for which there is no
plausible answer. No court of law can be a party to such a camouflage and deceit in judicial
proceedings. The answer to these basic questions cannot be that the Judge knew about it from the
very nature of the case. Under these circumstances, it cannot be said that the application was made
in good faith.

The satisfaction for moving an application under Section 321 Cr.P.C has to be of the Public Prosecutor which
in the nature of the case in hand has to be based on the material provided by the State. The nature of the
power to be exercised by the Court while deciding application under Section 321 is delineated by the
decision of this Court in Sheonandan Paswan v. State of Bihar. This decision holds that grant of consent by
the court is not a matter of course and when such an application is filed by the Public Prosecutor after
taking into consideration the material before him, the court exercises its judicial discretion by considering
such material and on such consideration either gives consent or declines consent. It also lays down that the
court has to see that the application is made
● in good faith,
● in the interest of public policy and justice and
● not to thwart or stifle the process of law or suffers from such improprieties or illegalities as to cause
manifest injustice if consent is given.

⮚ True, the power of the court under Section 321 is supervisory but that does not mean that while
exercising that power, the consent has to be granted on mere asking. The court has to examine that all
relevant aspects have been taken into consideration by the Public Prosecutor and/or by the
Government in exercise of its executive function.

⮚ Besides the eight questions noticed in the main judgment, the question and aspect of association of
Veerappan with those having secessionist aspirations were also not considered. Further, though it may
have been considered as to what happened on 1st August, immediately after the abduction of
 Rajkumar, but what does not seem to have been considered is that those were spontaneous outbursts
and the authorities may have been taken unaware but what would be the ground realities when the
law-enforcing agencies have sufficient time to prepare for any apprehended contingency.

⮚ The application and order under Section 321 is a result of panic reaction by overzealous persons
without proper understanding of the problem and consideration of the relevant material, though they
may not have any personal motive. It does not appear that anybody considered that if
democratically-elected governments give an impression to the citizens of this country of being
lawbreakers, would it not breed contempt for law; would it not invite citizens to become a law onto
themselves. It may lead to anarchy. The Governments have to consider and balance the choice
between maintenance of law and order and anarchy.
⮚ It does not appear that anyone considered this aspect. It yielded to the pressure tactics of those who
according to the Government are out to terrorise the police force and to overawe the elected
Governments. It does not appear that anyone considered that with their action people may lose faith
in the democratic process, when they see public authority flouted and the helplessness of the
Government. The aspect of paralysing and discrediting the democratic authority had to be taken into
consideration.
⮚ It is the executive function to decide in the public interest to withdraw from prosecution as claimed,
but it is also for the Government to maintain its existence. The self-preservation is the most pervasive
aspect of sovereignty. To preserve its independence and territories is the highest duty of every nation
and to attain these ends nearly all other considerations are to be subordinated. Of course, it is for the
State to consider these aspects and take a conscious decision.

In the present case, without consideration of these aspects the decision was taken to withdraw TADA
charges. It is evident from material now placed on record before this Court that Veerappan was acting in
consultation with secessionist organisations/groups which had the object of liberation of Tamil from
India. There is no serious challenge to this aspect. None of the aforesaid aspects were considered by the
Government or the Public Prosecutors before having recourse to Section 321 Cr.P.C.

With these additional reasons, I am in complete respectful agreement with the conclusion and opinion of
my senior colleague Hon’ble Mr Justice S.P. Bharucha.
 Ajay Pandit @ Jagdish Dayabhai Patel v. State of Maharashtra
(2012) 8 SCC 43

K S. Radhakrishnan, J.:
⮚ Death sentence has been awarded by the High Court of Bombay to Ajay Pandit @ Jagdish Dayabhai
Patel for double murder, in separate incidents, one for the murder of Nilesh Bhailal Patel and another
for the murder of Jayashree. The Bombay High Court heard both the appeals Criminal Appeal No. 46
of 2000 and Criminal Appeal No. 789 of 2001 together and rendered a common judgment on 22nd
December, 2005 confirming the order of conviction and enhancing the sentence of life imprisonment
to death and ordered the appellant to be hanged till death against which this appeal has been
preferred.

⮚ The accused Ajay Pandit @ JagdishDayabhai Patel was a dentist by profession, known as Doctor
Jagdish Patel at his Dhabasi Mohalla, District Kheda, Gujarat. Professional income was not sufficient for
him to lead a lavish and luxurious life. Self publicity was given of his make-belief contacts with the
officials of the American Embassy by which he lured the vulnerable into his net, for sending them to
America for better prospects in life. Several persons fell in his net like Nilesh and Jayashree and few
others narrowly escaped from the clutches of death.

Facts arising out of the judgment of the Bombay High Court in Criminal Appeal No. 46 of 2000 in which
the High Court, convicted the accused under Section 419 of the Indian Penal Code (for short the IPC) and
sentenced to suffer R.I. for one year, under Section 420 of the IPC, R.I. for two years and fine, under
Section 302 of the IPC life imprisonment with fine which was converted to death.

⮚ Doctor Jagdish Patel the accused had developed contacts with a family of one Dilip Manilal Patel and
during his visits to their house, the accused used to boost that he had contacts with the officials of the
American Embassy which kindled hopes in the minds of Dilip Patel and his family members and they
decided to send Nilesh Bhailal Patel, cousin brother of Smt. Sarala Patel, wife of Dilip Patel, to
America using the accused’s alleged influence in the American Embassy. A deal was struck and the
accused demanded an amount of Rs.2,50,000/- for realization of their dream. Negotiations took place
and the amount was reduced to Rs.1,10,000/- as an initial payment, and the balance was to be paid
after getting Nilesh employment in America. Dilip Patel in October 1993 paid Rs.60,000/- to the
accused and the balance amount of Rs.50,000/- was paid by Mahendra Bhailal Patel, brother of the
deceased - Nilesh to the accused.
⮚ The accused later asked Dilip Patel to send Nilesh to Bombay Central Railway Station on 8.2.1994 with
return ticket of the accused. Dilip Patel reached Bombay in the afternoon of 8.2.1994. The accused
told Dilip Patel that the necessary papers had been submitted to the Consulate and asked to leave the
place. Dilip Patel accordingly left the place and that was the last time, Dilip Patel saw Nilesh in the
company of the accused that was around 3 o’ clock.
⮚ In the evening of 8.2.1994 at about 5 o’ clock, Dilip Patel received a phone call from the accused
stating that the formalities had been completed and Nilesh would be coming home late in the night.
Dilip Patel contacted the accused in the morning of 9.2.1994 and he was informed by the accused that
Nilesh was waiting upto 5.30PM on the previous day at Bombay Central Railway Station and that he
would be back. Dilip Patel contacted the accused on several occasions to know whereabouts of Nilesh.
Meanwhile an attempt was made by the accused through one Tikabhai to inform Dilip Patel that
Nilesh had already left for America.

⮚ Dilip Patel in November 1994 read in a local newspaper Sandhya Jansatta of a news item of an
incident of attempt to murder and murder to three persons by one Doctor by name Jagdish. Dilip Patel
also read in Mid Day Evening Daily dated 5.11.1994 about arrest of Dr. Jagdish Patel the accused. On
the basis of this information, Dilip Patel approached Gamdevi Police Station on 13.11.1994 and
narrated the entire story to the police. The statement was accordingly recorded and a photograph of
 the dead body of unidentified person found in Room No. 103 of the Hotel Aradhana at Nana Chowk in
the evening of 9.2.1994 was also shown.
⮚ In the evening of 8.2.1994, the accused had booked Room No. 103 on the first floor of that Hotel. The
accused left the Hotel about 7.45PM in the evening of 8.2.1994 keeping the room locked and he did
not return. On 9.2.1994, for the purpose of cleaning the room, it was opened with a duplicate key and
the dead body of Nilesh was found. The dead body was sent for post-mortem but prior to that police
completed other formalities, finger print experts also did their job, articles received were sent to the
Forensic Laboratory, C.A. report was obtained. Till August 1994, there was no trace of the suspect and
the investigation was continuing. In fact on 30.8.1994, case was classified as true but not detected. The
accused was, however, arrested by Malabar Hill Police in C.R. No. 278/94 for murdering one woman -
Jayashree and for the attempted murder of two other persons at Hotel Kemps Corner. The accused
was identified by Dilip Patel, his wife Sarala Patel and Mahendra Patel brother of the deceased -
Nilesh. This was the brief background of the first case.

Facts of the second appeal which came up before the Bombay High Court vide Criminal Appeal No. 789 of
2001.
⮚ One Kaushikbhai Sanabhaiu Patel was leading a normal family life with his wife Jayashree at Labhvel,
District Anand, in the State of Gujarat. One Jagdish @ Harishbhai Patel was the cousin brother of
Jayashree. They had contacted Joy Travel Agency for the said purpose in October 1994. Kaushikbhai
was told by the owner of Joy Travels that the expenses of sending one person to America would be
around Rs.7,23,000/-. Kaushikbhai paid Rs.20,000/- to the travel agent for himself and Jagdish. While
he was nurturing the idea of going to America, the accused seized that opportunity and got acquainted
with Kaushikbhai and Jagdish. The accused promised that he would realize their dreams for which he
demanded a huge sum. On the accused initiative, Ramchandra visited the house of Kaushikbhai on
1.11.1994 and gave Rs.4,00,000/- to him, as instructed by the accused, by way of loan.

⮚ Kaushikbhai, his wife - Jayashree and Jagdish then boarded the train to Bombay Central from Baroda
Railway Station. F Accused reached Bombay Central Railway Station in the early hours of 2.11.1994 and
all the three along with the accused went to the Hotel Kemps Corner and two Rooms Nos. 202 and
206 were booked in the name of the accused. The accused informed them that all the requisite
formalities had been completed and a Doctor, who was supposed to issue the medical certificate,
would be coming at 4.30 pm on the same day to the hotel for medical check-up. The accused
demanded money for completing other formalities, Rs.60,000/- was received from Kaushikbhai and
Rs.40,000/- was received from Jagdish. A cheque drawn on Punjab National Bank, Anand for
Rs.14,50,000/-, one promissory note of Rs.8,50,000/- and Rs.4,37,000/- were given to the accused by
Kaushikbhai. Later, the accused gave one capsule and two tablets each to Kaushikbhai, Jayashree and
Jagdish which they were asked to take before the medical check-up, which they did. Later, Jayashree
went to Room No. 202 and Kaushikbhai and Jagdish remained in Room No. 206. Kaushikbhai and
Jagdish started feeling drowsiness and a sleeping sensation and they lied down on the bed. The
accused then administered an injection on the abdomen of Kaushikbhai who went fast asleep. Jagdish
by that time was already fast asleep and that was the last time, they saw the accused. In the mid-night,
Kaushikbhai regained consciousness, he felt some foul play and alerted the Hotel Manager and they
went to the room of Jayashree and got the room opened, but Jayashree was found dead. Intimation
was given to Malabar Hill Police Station and complaint of Kaushikbhai was recorded. Police arrested
the accused in November 1994.

The trial court as well as the High Court had elaborately discussed the various steps taken by the
investigating agency to unravel the truth and hence, we are not dealing with those facts in detail.

The prosecution in the case of death of Nilesh examined 17 witnesses. PW1 to PW4 are the employees of
the hotel and PW5 and PW6 are the relatives of the deceased Nilesh. We have also gone through the
evidence of other witnesses critically and it is unnecessary to repeat what they have said, since the trial
court as well as the High Court had elaborately discussed the evidence given by those witnesses.

⮚ So far as the death of Nilesh is concerned, there was no eye witness to the incident and the guilt of the
accused could be brought out by the prosecution only by circumstantial evidence. The direct evidence
of PW5 and PW6 preceded the death of Nilesh.
⮚ PW5 is the sister of the deceased Nilesh by name Sarala Dilip Patel. She stated that after Nilesh had
gone to Bombay, his whereabouts were not known. She had also deposed that on 27.3.1994, her
husband lodged a complaint at Kandivali Police Station since Nilesh was found missing. Further, they
had also noticed the news item appeared in various newspapers about the arrest of the accused in
respect of some other case. On 13.11.1994, her husband had again lodged a complaint as to missing of
Nilesh. She had also narrated the steps they had taken on coming to know that her brother Nilesh was
missing. Evidence given by this witness is consistent with the case of the prosecution and there is no
reason to disbelieve the version of this witness.

⮚ PW6 Dilip Patel, the husband of PW5 - had deposed that he knew the accused since 1991 and the
accused had come with the proposal for sending Nilesh to America stating that he had good
connections with the officials of the American Embassy. PW6 had also deposed that he had also gone
to Bombay with cash as directed by the accused. Further, he had also deposed that on 8.2.1994, Nilesh
had left his house for Bombay and that PW6 had also gone to Bombay since the accused asked him to
meet at Opera house at 11.30AM on 8.2.1994. PW6, it was stated, saw the accused and Nilesh near
the bus stop of Blobe Radio. The accused told him that at about 3.00 pm on 8.2.1994 he had submitted
the papers before the Embassy and asked PW6 to leave the place stating that Consulate would not like
the presence of too many persons. PW 6, therefore, left the place leaving behind the accused and
Nilesh. Nilesh did not return home, search was made and a complaint was lodged on 28.3.1994 at
Kandivali Police Station. On 6.9.1994, notice was sent through advocate to Kandivali Police Station. PW
6 also stated that he had met accused at village Borsad Chaukadi and the accused gave evasive
answers. Later, PW 6 came across a news item in Sandhya Jansatta wherein reference was made to one
Dr. Jagdish who had committed murder and attempted to commit murder of few other persons. News
item also appeared in other newspapers as well.

⮚ PW 6 was cross-examined at length but the defence could not demolish his evidence or the evidence
of other witnesses including that of PW5. Evidence, in this case, proved beyond reasonable doubt that
it was the accused who lured Nilesh for sending him to America. Facts would clearly indicate that it
was the accused who had extracted money giving false hopes. The deceased was also seen by PW 6
last, in the company of the accused. PW 6 had also made payment to the accused for medical
expenses. PW 5 and PW 6, therefore, proved the chain and links from the stage of acquaintance with
the accused till the stage of Nilesh being seen in the custody or company of the accused, for the
purpose of sending Nilesh to America.

⮚ The prosecution had examined PW 1 to PW 4 to prove the subsequent events and the steps taken. PW
1 to PW 4 were all attached to Hotel Aradhana or guest house of Aradhana. PW 1 is an independent
witness Manager of the Hotel Aradhana. He narrated what had happened at his Hotel. PW 1 also saw
the deceased in the company of the accused. He saw the accused taking Nilesh in Room No. 103 and
later coming back alone leaving the hotel without handing over the key at the reception counter.
Nothing had been brought out in the cross examination of these witnesses to contradict what he had
stated.

Learned counsel appearing for the accused had also not seriously attacked the findings and reasoning
given by the trial court as well as the High Court in ordering conviction and his thrust was on the
quantum of sentence awarded, and later death penalty
We have already indicated the modus operandi adopted by the accused in the second case was also
almost the same. Few facts of this case have already been dealt in the earlier paragraphs of this
judgment and hence, we may directly come to the evidence of the key witnesses in this case.

⮚ Jayashree the victim was poisoned by the accused at Hotel Kemps Corner. PW 1 and PW 5 were direct
victims of the accused who fortunately survived. PW 1 was the husband and PW 5 was the brother of
Jayashree the deceased. Evidence of PW 1 and PW 5 are consistent and have not been shaken at all by
the defence. No doubt has been created about the veracity of their testimony. PW 1 and PW 5 were
the direct victims and were also the eye witnesses to the entire transaction and we have critically gone
through the evidence adduced by PW 1 and PW 5 and nothing was brought out to discredit their
evidence.

⮚ The prosecution examined sixteen witnesses PW 2, PW 4, PW 14 were the staff members of the hotel
Kemps Corner - they had narrated, in detail, the manner in which the accused booked the room, paid
the amount, took the three witnesses to both the rooms. The hotel witnesses identified the accused in
the court as well as in the identification parade. The prosecution examined PW 8 panch witnesses
before whom the accused voluntarily gave statement u/s 27 of the Evidence Act which led to the
discovery of huge cash amount, cheques, promissory notes and various articles like passports, rubber
stamps etc.

⮚ We have also gone through, critically, the oral evidence and the documents produced in this case and
found no reason to take a different view from that of the trial court and the High Court on conviction.
We have also gone through the statement under section 313 Cr.P.C. made by the accused in both the
cases which was of total denial of the crime.

Nilesh the deceased, victim in the first case was an unmarried boy of 25 years and yet to become mature
enough to know the world around him. All the hopes dashed on the eventful day when he was murdered in
a brutal manner not only by inflicting injuries by deadly weapon on vital parts of the body but also injuries
on the testis causing him immense suffering and pain.

Jayashree, the deceased - victim was administered excessive tablets by the Dentist turned killer and
Jayashree died of that in the night of that fateful day. The medical evidence clearly indicates that
Kaushikbhai, Jayashree and Jagdish had taken one capsule and two tablets.

The Bombay High Court noticing the ghastly manner in which the accused had murdered Nilesh as well as
Jayashree and poisoned PW 1 and PW 5, considered it as a rarest of rare case warranting death sentence.

The High Court heard the arguments of the advocate for the accused as well as the prosecutor on the
point as to whether the High Court could enhance the sentence of the accused from life to death. Having
noticed that the High Court has the power to enhance the sentence from life imprisonment to death, the
High Court issued a notice on 1.12.2005 to the accused to show cause why the sentence of life
imprisonment be not enhanced to death sentence. The operative portion of the order reads as follows:

We have heard the arguments of learned advocate for the petitioner as well as learned APP for the State for
quite some time on two occasions. In exercise of suo-moto powers and on the basis of judgment of the
Supreme Court, it will be necessary to hear the accused as to why his sentence should not be enhanced from
life imprisonment to death. Therefore, the accused be produced by the Kalyan District Prison Authorities
before this Court on 12th December 2005.
The accused was produced before the Court on 12th December 2005 but the advocate representing the
accused was absent. Consequently, the matter was adjourned to 13.12.2005. On 13.12.2005, the accused
as well as his advocate were present and the Court on 13.12.2005 recorded the following statement of the
accused which reads as follows:

(Accused understands English. He gives the statement in English. We are recording the same in his own
language.) I am not involved in the case. The travel agent should also have been implicated in this case. I
am not involved. I am not guilty. (Repeatedly the accused was informed by us about the nature of the show
cause notice given. He made the aforesaid statement and he does not want to say any more. Matter
adjourned to 22nd December, 2005 at 3.00 for Judgment.Accused to be produced on that day.

Arguments of Counsel of Appellant: Mr. Sushil Karanjakar, learned advocate appearing for the accused
submitted:
⮚ that the High Court has not followed the procedure laid down under Section 235(2) of the Code before
enhancing the sentence of life imprisonment to death. Learned counsel pointed out that having regard
to the object and the setting in which the new provision of Section 235(2) was inserted in the 1973
Code, there can be no doubt that it is one of the most fundamental parts of the criminal procedure and
non-compliance thereof will ex facie vitiate the order. In support of his contention, learned counsel
placed reliance on the judgment of this Court in Santa Singh v. State of Punjab; (1976) 4 SCC 190 and a
recent judgment in Rajesh Kumar v. State through Government of NCT of Delhi; (2011) 13 SCC 706.

Mr. Shankar Chillarge, learned counsel appearing for the State, submitted:
⮚ that in the facts and circumstances of this case, the High Court was justified in according maximum
sentence of death penalty, since on facts, it was found to be a rarest of rare case and the test laid down
by this Court in Bachan Singh v. State of Punjab; (1980) 2 SCC 684 has been fully satisfied. Learned
prosecutor submitted this is a case of double murder and attempt to commit murder of two others and
the manner in which the same was executed was gruesome. Further, it was pointed out that the
procedure laid down under Section 235(2) Cr.P.C. was fully complied with and there is no reason to
upset the conviction/ sentence awarded by the High Court.

Decision of Supreme Court:

⮚ We heard the learned counsel on either side on this point at length. The original file made available to
this Court did not contain the copy of show cause notice dated 1.12.2005 issued by the High Court as
well as the full text of the order passed by the High Court on 13.12.2005 recording the statement of
the accused. We passed an order on 11.04.2012 to produce the original files to examine whether the
High Court had followed the procedure laid down under Section 235(2) Cr.P.C. Records were made
available and we went through those records with great care. We have also perused the full text of the
show cause notice dated 1.12.2005 issued by the High Court and the statement recorded by the High
Court under Section 235(2) Cr.P.C. after summoning the accused.

We have to examine whether the High Court has properly appreciated the purpose and object of Section
235(2) Cr.P.C. and applied the same bearing in mind the fact that they are taking away the life of a human
being.

Section 235 Cr.P.C. in its entirety is extracted for reference:

235: Judgment of acquittal or conviction
(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of
section 360 hear the accused on the question of sentence, and then pass sentence on him according to law.
The necessity of inserting sub-section (2) was highlighted by the Law Commission in its 41st Report which
reads as follows:

It is now being increasingly recognized that a rational and consistent sentencing policy requires the removal
of several deficiencies in the present system. One such deficiency is the lack of comprehensive information
as to the characteristics and background of the offender. The aims of sentencing become all the more so in
the absence of information on which the correctional process is to operate. The public as well as the courts
themselves are in the dark about the judicial approach in this regard. We are of the view that the taking of
evidence as to the circumstances relevant to sentencing should be encouraged, and both the prosecution
and the accused should be allowed to co-operate in the process. The Law Commission in its Report had
opined that the taking of evidence as to the circumstances relevant to sentencing should be encouraged in
the process. The Parliament, it is seen, has accepted the recommendation of the Law Commission fully and
has enacted sub-section (2).

The scope of the abovementioned provision has come up for consideration before the Apex Court on
various occasions. Reference to few of the judgments is apposite. The courts are unanimous in their view
that
⮚ sub-section (2) of Section 235 clearly states that the hearing has to be given to the accused on the
question of sentence, but the question is what is the object and purpose of hearing and what are the
matters to be elicited from the accused. Of course, full opportunity has to be given to produce
adequate materials before the Court and, if found, necessary court may also give an opportunity to
lead evidence. Evidence on what, the evidence which has some relevance on the question of sentence
and not on conviction.
⮚ But the further question to be examined is whether, in the absence of adding any materials by the
accused, has the Court any duty to elicit any information from whatever sources before awarding
sentence, especially capital punishment. Psychological trauma which a convict undergoes on hearing
that he would be awarded capital sentence, that is, death, has to be borne in mind, by the court.
Convict could be a completely shattered person, may not be in his normal senses, may be dumbfound,
unable to speak anything.
⮚ Can, in such a situation, the court presume that he has nothing to speak or mechanically record what
he states, without making any conscious effort to elicit relevant information, which has some bearing in
awarding a proper and adequate sentence. Awarding death sentence is always an exception, only in
rarest of rare cases.

(a) Santa Singh v. State of Punjab; (1976) 4 SCC 190: In this case Court has extensively dealt with the
nature and scope of Section 235(2) Cr.P.C. stating that such a provision was introduced in consonance with
the modern trends in penology and sentencing procedures. The Court noticed: today more than ever
before, sentencing has become a delicate task, requiring an inter-disciplinary approach and calling for skills
and talents very much different from those ordinarily expected of lawyers.

The Court found that the requirements of Section 235(2) were not complied with, inasmuch as no
opportunity was given to the appellant, after recording his conviction, to produce material and make
submissions in regard to the sentence to be imposed on him. The Court noticed in that case the Sessions
Court chose to inflict death sentence on the accused and the possibility could not be ruled out that if the
accused had been given an opportunity to produce material and make submissions on the question of
sentence, as contemplated by Section 235(2), he might have been in a position to persuade the Sessions
Court to impose a lesser penalty of life imprisonment. The Court, therefore, held the breach of the
mandatory requirement of Section 235(2) could not, in the circumstances, be ignored as inconsequential
and it can vitiate the sentence of death imposed by the Sessions Court. The Court, therefore, allowed the
appeal and set aside the sentence of death and remanded the case to the Sessions Court with a direction to
pass appropriate sentence after giving an opportunity to the accused to be heard.
Further, in Santa Singh, the Court also held as follows:The hearing contemplated by Section 235(2) is not
confined merely to hearing oral submissions, but it is also intended to give an opportunity to the
prosecution and the accused to place before the court facts and material relating to various factors bearing
on the question of sentence and if they are contested by either side, then to produce evidence for the
purpose of establishing the same.

(b) Dagdu &ors. v. State of Maharashtra; (1977) 3 SCC 68: The three Judges Bench, referring to the
judgment in Santa Singh, held as follows:

The Court on convicting an accused must unquestionably hear him on the question of sentence. But if, for
any reason, it omits to do so and the accused makes a grievance of it in the higher court, it would be open
to that court to remedy the breach by giving a hearing to the accused on the question of sentence.

It further held as follows: For a proper and effective implementation of the provision contained in Section
235(2), it is not always necessary to remand the matter to the court which has recorded the conviction
.Remand is an exception, not a rule, and ought therefore to be avoided as far as possible in the interests of
expeditious, though fair, disposal of cases

(c) Muniappan v. State of Tamil Nadu; AIR 1981 SC 1220: This Court held as follows:
The obligation to hear the accused on the question of sentence which is imposed by Section 235(2) of the
Criminal Procedure Code is not discharged by putting a formal question to the accused as to what he has to
say on the question of sentence. The Judge must make a genuine effort to elicit from the accused all
information which will eventually bear on the question of sentence.

(d) Allauddin Mian &ors. v. State of Bihar; (1989) 3 SCC 5: This Court also considered the effect of
non-compliance of Section 235(2) Cr.P.C. and held that the provision is mandatory. The operative portion
of the judgment reads as follows:

⮚ The requirement of hearing the accused is intended to satisfy the rule of natural justice. It is a
fundamental requirement of fair play that the accused who was hitherto concentrating on the
prosecution evidence on the question of guilt should, on being found guilty, be asked if he has anything
to say or any evidence to tender on the question of sentence. This is all the more necessary since the
Courts are generally required to make the choice from a wide range of discretion in the matter of
sentencing. To assist the Court in determining the correct sentence to be imposed the legislature
introduced Sub-section (2) to Section 235. The said provision therefore satisfies a dual purpose; it
satisfies the rule of natural justice by according to the accused an opportunity of being heard on the
question of sentence and at the same time helps the Court to choose the sentence to be awarded. Since
the provision is intended to give the accused an opportunity to place before the Court all the relevant
material having a bearing on the question of sentence there can be no doubt that the provision is
salutary and must be strictly followed. It is clearly mandatory and should not be treated as a mere
formality.

(e) Malkiat Singh v. State of Punjab; (1991) 4 SCC 341: The Supreme Court indicated the necessity of
adjourning the case to a future date after convicting the accused and held as follows:

On finding that the accused committed the charged offences, Section 235(2) of the Code empowers the
Judge that he shall pass sentence on him according to law on hearing him. Hearing contemplated is not
confined merely to oral hearing but also intended to afford an opportunity to the prosecution as well as the
accused to place before the Court facts and material relating to various factors on the question of sentence
and if interested by either side, to have evidence adduced to show mitigating circumstances to impose a
lesser sentence or aggravating grounds to impose death penalty. Therefore, sufficient time must be given to
the accused or the prosecution on the question of sentence, to show grounds on which the prosecution may
plead or the accused may show that the maximum sentence of death may be the appropriate sentence or
the minimum sentence of life imprisonment may be awarded, as the case may be.

(f) Rajesh Kumar v. State through Government of NCT of Delhi, (2011) 13 SCC 706: This Court examined at
length the evaluation of sentencing policy and the concept of mitigating circumstances in India relating to
the death penalty. The Court held that the object of hearing under Section 235(2) Cr.P.C. being intrinsically
and inherently connected with the sentencing procedure, the provisions of Section 354(3) Cr.P.C. which calls
for recording of special reason for awarding death sentence, must be read conjointly. The Court held that
such special reasons can only be validly recorded if an effective opportunity of hearing as contemplated
under Section 235(2) Cr.P.C. is genuinely extended and is allowed to be exercised by the accused who stands
convicted and is awaiting the sentence.

In our view, the principles laid down in the above cited judgments squarely applies on the question of
awarding of sentence and we find from the records that the High Court has only mechanically recorded
what the accused has said and no attempt has been made to elicit any information or particulars from the
accused or the prosecution which are relevant for awarding a proper sentence. The accused, of course, was
informed by the Court of the nature of the show-cause-notice.
What was the nature of show cause notice?
⮚ The nature of the show-cause-notice was whether the life sentence awarded by the trial court be not
enhanced to death penalty. No genuine effort has been made by the Court to elicit any information
either from the accused or the prosecution as to whether any circumstance exists which might influence
the Court to avoid and not to award death sentence.
⮚ Awarding death sentence is an exception, not the rule, and only in rarest of rare cases, the Court could
award death sentence. The state of mind of a person awaiting death sentence and the state of mind of
a person who has been awarded life sentence may not be the same mentally and psychologically. The
court has got a duty and obligation to elicit relevant facts even if the accused has kept totally silent in
such situations. In the instant case, the High Court has not addressed the issue in the correct
perspective bearing in mind those relevant factors, while questioning the accused and, therefore,
committed a gross error of procedure in not properly assimilating and understanding the purpose and
object behind Section 235(2) Cr.P.C.

In such circumstances, we are inclined to set aside the death sentence awarded by the High Court and remit
the matter to the High Court to follow Section 235(2) Cr.P.C. in accordance with the principles laid down.
The conviction awarded by the High Court, however, stands confirmed. The High Court is requested to pass
fresh orders preferably within a period of six months from the date of the receipt of the copy of this order.
The appeal is allowed to that extent.
 Judgment

Relevant Provisions: See Provisions under Chapter XXVII

Meaning of Judgment: Judgment is the final reasoned decision of the court as to the guilt or innocence of the accused.

Where the accused is found guilty, judgment would also include an order requiring the accused to undergo the prescribed
punishment.

Modes of Pronouncing the Judgment: According to Section 353 (1) The judgment in every trial in any Criminal Court or
original jurisdiction shall be pronounced in open Court by the presiding officer immediately after the termination of the trial or
at some subsequent time of which notice shall be given to the parties or their pleaders:

(a) by delivering the whole of the judgment; or

(b) by reading out the whole of the judgment; or

(c) by reading out the operative part of the judgment and explaining the substance of the judgment in a language which is
understood by the accused or his pleader

Where the judgment is delivered under clause (a) above, the presiding officer shall cause it to be taken down in short-hand,
sign the transcript and every page thereof as soon as it is made ready, and write on it the date of the delivery of the
judgment in open Court. [Section 353(2)]
 Where the judgment or the operative part thereof is read out under clause (b) or clause (c), as the case may be, it shall be
dated and signed by the presiding officer in open Court, and if it is not written with his own hand, every page of the
judgment shall be signed by him. [Section 353(3)]

Where the judgment is pronounced in the manner specified in clause (c), the whole judgment or a copy thereof shall be
immediately made available for the perusal of the parties or their pleaders free of cost.[Section 353(4)]

The trial court is required to secure the attendance of the accused at the time of deliverng a judgment of conviction by
which the accused is sentenced to a substantive sentence of imprisonemnt. [See Section 353(5) & (6)]

Where there are more accused than one, and one or more of them do not attend the Court on the date on which the
judgment is to be pronounced, the presiding officer may, in order to avoid undue delay in the disposal of the case,
pronounce the judgment notwithstanding their absence.[Proviso to Section 353(6)]

Court not to Alter Judgment: Save as otherwise provided by this Code or by any other law for the time being in force, no
Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a
clerical or arithmetical error. [Section 362]
Language and Contents of Judgment: Section 354 of the Code makes the following provision in this regard:
Except as otherwise expressly provided by this Code
(i) Every judgment shall be written in the language of the court [According to section 272, the language of the court is
determined by the State Government]

(ii) Every judgment shall contain the point or points for determination, the decisions thereon and the reasons for the
decision.

Note: Usually the judgment in a criminal case commence with stattement of facts, thereafter it indicates a careful analysis
and appraisal of the evidence while reaching the conclusions regarding proof of facts. No judgment can be regarded as a
considered judgment, unless the reasons for accepting one and rejecting the other of the two viewpoints are clearly
mentioned in the judgment.

(iii) Every judgment shall specify the offence (if any) of which, and the section of IPC or other law under which, the accused is
convicted, and the punishment to which he is sentenced.
Note: When the conviction is under IPC and it is doubtful under which of two sections, or under which of two parts of the
same section, of that Code the offence falls, the Court shall distinctly express the same, and pass judgment in the alternative.
[Section 354(2)]

(iv) if the judgment is one of acquittal, it shall state the offence of which the accused is acquitted and direct that he be set at
liberty

Note: When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or
imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of
Note: When the conviction is for an offence punishable with imprisonment for a term of one year or more, but the Court
imposes a sentence of imprisonment for a term of less than three months, it shall record its reasons for awarding such
sentence. [Section 354(4)]
Note: When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.
[Section 354(5)]

Judgment in Abridged Form: Accroding to Section 355 the judgment given by a Metropolitan Magistrate shall be in an
abridged form giving the following particulars only:
(a) the serial number of the case;
(b) the date of the commission of the offence;
(c) the name of the complainant (if any);
(d) the name of the accused person, and his parentage and residence;
(e) the offence complained of or proved;
(f) the plea of the accused and his examination (if any);
(g) the final order;
(h) the date of such order;
(i) in all cases in which an appeal lies from the final order either under section 373 or under sub-section (3) of section 374, a
brief statement of the reasons for the decision

Note 1: The judgment given in a summary trial is also to be recorded in a similar abridged form as prescribed by Sections
263-264.
Post-Conviction Orders: [Sections 360 & 361 of CrPC]

In recent times there has been an inreasing emphasis on the reformation and rehabilitation of the offender as a useful
and self reliant member of the society without subjecting him to the deleterious effects of jail life.

On the other hand, there are occasions when an offender is so anti-social that his immediate or sometimes prolonged
confinement is the best assurnace of soceity's protection. In such cases, the consideration of rehabilitation has to give
way, because of paramount need for the protection of society.

Therefore, it is not easy to reconcile these conflicting demands, and once the guilt is established, the punitive dilemma
begins.

In every criminal trial, when the court finds the accused guilty, it has to punish the accused in accordance with law after
hearing him. However having regard to the age, character, antecedents or physical or mental conditon of the offender
and to the circumstances in which the offence was committed the court may instead of sentencing the accused person
to any punishment, release him after admonition or on probation of good conduct under Section 360 of the Code or
under the provisions of the Probation of Offenders Act, 1958 (hereinafter, “POA”)
Analysis of Section 360:

An analysis of Section 360 will bring out the following points:

(i) Release on Probation of Good Conduct: Having regard to the age, character or antecedents of the offender, and the
circumstances in which the offence was committed, if the court convicting the accused person considers it expedient to
release the offender on probation of good conduct (instead of sentencing him to any punishment), it may direct the
offender to be released on his entering into a bond with or without sureties, to appear and receive sentence when called
upon during such period (not exceeding three years) a the court may fix and in the meantime to keep the peace and be of
good behaviour. Such a release is permissible only if the following conditions are satisfied:

(a) There is no previous conviction proved against the offender.

(b) When the person convicted is a woman of any age, or any male person under 21 years of age, and the offence of which
he or she is convicted is not punishable with death or imprisonment for life.

(c) When the person convicted is not under 21 years of age, and the offence of which he is convicted is punishable with fine
only or with imprisonment for a term of 7 years or less.

Note: No Magistrate of second class, unless he is specially empowered, can relaese an offender on probation as mentioned
above; however if such a Magistrate considers that the offender should be so released, he may transfer the case to a
Magistrate of the first class who may thereupon take such action as is appropriate as to sentencing the offender or releasing
him on probation
(ii) Release after Admonition: Having regard to the age, character, antecedents or physical or mental conditions of the
offender and to the trivial nature of the offence or any extnuating circumstances under which the offence was committed, the
court may, after convicting the accused person, release him after the admonition. Such a release is permissible only if the
following conditions are satisfied:

(a) There is no previous conviction proved against the accused person;

(b) The offence of which the accused is convicted is either:

- theft
- theft in building; or
-dishonest misappropiation; or
- cheating; or
- any offence which is punishable under the IPC with not more than two years of imprisonment; or
- any offence which is punishable with fine only

Object of Section 360: This section is intended to be used to prevent young persons from being committed to jail, where they
may associate with hardened criminals, who may lead them further along the path of crime, and to help even persons of more
mature years who for the first time may have committed crimes through ignorance, or inadvertance or the bad influence of
others and who, but for such lapses, might be expected to be good citizens.

Note: Section 360 (10) makes it quite clear that it shall not affect the provisions of the POA, 1958 in the following words:
Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or the Children Act,
1960 (60 of 1960) or any other law for the time being in force for the treatment, training or rehabilitation of youthful
offenders. [Read section 3, 4 and 6 of the POA, 1958]
(iii) Special Directive in Favour of non-punitive Measures:

The discretion to sentence a convicted person to any offence punishment has been narrowed down by Section 361 of the
Code. This section requires that:

Where in any case the Court could have dealt with -

(a) an accused person under section 360 or under the provisions of the Probation of Offenders Act, 1958 (20 of 1958); or
(b) a youthful offender under the Children Act, 1960 (60 of 1960) or any other law for the time being in force for the
treatment, training or rehabilitation of youthful offenders,
but has not done so, it shall record in its judgment the special reasons for not having done so.

Note: If the convicted person is not released after admonition or on probation of good conduct as mentioned above, the court
shall (in case of serious offences after hearing him on the question of sentene) pass sentence upon him according to law.
[Please see our discussion on Sections 235(2), 248(2) and 252(2)]
 Ashwini Kumar Upadhyay v. Union of India, 10th August 2021
⮚ The Court is convened through Video Conferencing. At the commencement of hearing, Mr.
Tushar Mehta, learned Solicitor General appearing on behalf of the Union of India seeks further
time to comply with the directions passed by this Court on 10.09.2020, 16.09.2020, 06.10.2020
and 04.11.2020 regarding filing of Status Report regarding pending cases against the legislators
(sitting or former).
⮚ Finally, two weeks’ time is granted to the learned Solicitor General to file response/affidavit in
compliance of the directions given by this Court vide orders dated 10.09.2020, 16.09.2020,
06.10.2020 and 04.11.2020 with a copy in advance to the learned amicus curiae within ten days.
We have heard Mr.Vijay Hansaria, learned amicus curiae, Mr. Tushar Mehta, learned Solicitor
General as also the learned counsel for the parties.
At the outset we may note that the learned amicus has filed his 13th Report dated 09.08.2021. The
Report, inter alia, addresses various concerns which are broadly indicated as under:
(I) Misuse of the Prosecutor’s power to withdraw cases under Section 321, Cr.P.C.
(II) Continuity of tenure of Judicial Officers
(III) Jurisdiction of Special Court (M.P./M.L.A.) to try cases against legislators elected from other
States
(IV) Jurisdiction of Special Courts with respect to cases triable by Magistrates
(V) Trial of cases where an M.P./M.L.A. is the complainant
(VI) Safe and secure witness examination facility
We are inclined to address the first two issues by this order as these issues are of immediate concern
and may be easily disposed of. It may not be out of context to state that issues no. 3 and 4 give rise to
substantive question of law which may require some elaborate arguments, which will be taken up on
a subsequent date.
Supreme Court’s Decision on First Issue:
(I) Misuse of Prosecutor’s Power u/s 321 of Cr.P.C.
⮚ Learned amicus has drawn our attention to various instances across the country, wherein various
State Governments have resorted to withdrawal of numerous criminal cases pending against
M.P./M.L.A. by utilising the power vested under Section 321, Cr.P.C. It merits mentioning that
the power under Section 321, Cr.P.C. is a responsibility which is to be utilized in public interest,
and cannot be used for extraneous and political considerations. This power is required to be
utilized with utmost good faith to serve the larger public interest. Recently, this Court in State of
Kerala v. K. Ajith, (2021) SCC Online SC 510, held as under:
“The principles which emerge from the decisions of this Court on the withdrawal of a
prosecution under Section 321 of the CrPC can now be formulated:
(i) Section 321 entrusts the decision to withdraw from a prosecution to the public
prosecutor but the consent of the court is required for a withdrawal of the prosecution;

(ii) The public prosecutor may withdraw from a prosecution not merely on the
ground of paucity of evidence but also to further the broad ends of public justice;

(iii) The public prosecutor must formulate an independent opinion before seeking
the consent of the court to withdraw from the prosecution;

(iv) While the mere fact that the initiative has come from the government will not
vitiate an application for withdrawal, the court must make an effort to elicit the
reasons for withdrawal so as to ensure that the public prosecutor was satisfied that the
withdrawal of the prosecution is necessary for good and relevant reasons;
 (v) In deciding whether to grant its consent to a withdrawal, the court exercises a
judicial function but it has been described to be supervisory in nature. Before deciding
whether to grant its consent the court must be satisfied that:

(a) The function of the public prosecutor has not been improperly exercised or
that it is not an attempt to interfere with the normal course of justice
for illegitimate reasons or purposes;
(b) The application has been made in good faith, in the interest of public policy
and justice, and not to thwart or stifle the process of law;
(c) The application does not suffer from such improprieties or illegalities as
would cause manifest injustice if consent were to be given;
(d) The grant of consent sub-serves the administration of justice; and
(e) The permission has not been sought with an ulterior purpose unconnected
with the vindication of the law which the public prosecutor is duty bound to maintain;

(vi) While determining whether the withdrawal of the prosecution subserves the
administration of justice, the court would be justified in scrutinizing the nature and
gravity of the offence and its impact upon public life especially where matters
involving public funds and the discharge of a public trust are implicated; and

(vii) In a situation where both the trial judge and the revisional court have concurred
in granting or refusing consent, this Court while exercising its jurisdiction
under Article 136 of the Constitution would exercise caution before disturbing
concurrent findings.

⮚ The Court may in exercise of the well-settled principles attached to the exercise of this
jurisdiction, interfere in a case where there has been a failure of the trial judge or of the
High Court to apply the correct principles in deciding whether to grant or withhold
consent.”

In view of the law laid down by this Court, we deem it appropriate to direct that no
prosecution against a sitting or former M.P./M.L.A. shall be withdrawn without the leave of
the High Court in the respective suo-motu writ petitions registered in pursuance of our
order dated 16.09.2020.
The High Courts are requested to examine the withdrawals, whether pending or disposed
of since 16.09.2020, in light of guidelines laid down by this Court.
Supreme Court’s Decision on Second Issue:
(II) Continuity of Tenure for Judicial Officer
⮚ This Court vide order dated 16.09.2020 had recorded the submissions of the learned amicus
curiae as under: -
“The High Courts would designate a judicial officer for all such cases, who shall try
these cases on priority basis. The judicial officer can be allotted other work
depending on the workload, number and nature of criminal cases against MPs/MLAs.
The judicial officer so designated shall have continuity of tenure for a minimum
period of two years.”

It may be noticed that during the intervening period, we faced a pandemic which scuttled many
Courts in effectively conducting trials, or recording evidence or hearing applications.
⮚ In the meanwhile, to ensure expeditious disposal of pending cases, it is necessary for this Court
to direct the officers presiding over Special Courts or CBI Courts involving prosecution of MPs
 or MLAs to continue in their present posts until further orders. This direction, barring transfer of
Judicial Officers, will be subject to their superannuation or death. If any further necessity or
emergency arises, the Registrar General of the High Courts are at liberty to make an application
before us for retention or to relieve those officers.
List the matter on 25.08.2021 for arguments on other issues indicated above.
 Features of Fair Trial

Relevant Provisions: Articles 20 (1) (3), 22(1), 39A of the Constitution;

Sections 273, 300, 303-304, 313, 316, 317, 319, 327, 406, 409 of CrPC. [Not exhaustive list of Provisions of CrPC]

Fair trial has been considered as a facet of “due process”.

Principle of 'due process' is an emanation from the Magna Carta that was accepted in American jurisprudence. In India, this
concept along with the concept of just, fair and reasonable law have been read by the Supreme Court into the guarantees
under Articles 14 and 21 of our Constitution.
Due process of the law, encompasses not only the right to a fair trial, but also the preservation of public confidence in the
administration of justice. Justice should not only be done but must be seen to be done.

Definition/Meaning of Fair Trial:

This concept of fair trial may carry different connotations with reference to a country, the time in history, the place, the
legal system being followed, the type of government, the religious and other norms acceptable to a society etc., so much so
that any attempt to define the same may prove futile. For example, in some countries jury trial is a facet of fair trial while in
others it is not.

The Supreme Court has observed:

that there can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and
it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether
something that was done or said either before or at the trial deprived the quality of fairness to a degree where a
miscarriage of justice has resulted.
 It will not be correct to say that it is only the accused who must be fairly dealt with….Denial of a fair trial is as much
injustice to the accused as is to the victim and the society

However in one of its leading judgments Supreme Court defined the fair trial as thus: Fair trial would mean a trial before
an impartial judge, a fair prosecutor and an atmosphere of judicial calm. [See, Zahira Habibullah Sheikh v. State of Gujarat
(2006) 3 SCC 374]
Now Let us discuss the Main Features of Fair Trial with the help of the Relevant Provisions of the Constitution of India
and the CrPC:
The concept of fair trial has permeated throughout the text of CrPC. One of the major objectives of the Code is to provide
for fair trial in the administration of criminal justice, it is but natural that the provisions of the Code are directed towards
achieveing this goal.
1 Adversarial Nature of Trial:
One of the important features, is a fundamental aspect of the right to a fair trial, that criminal proceedings, should be
adversarial.

An adversarial trial means both prosecution and defence must be given the opportunity to be aware of and confront the
contentions raised and the evidence adduced by the other party.
The court is more or less like an umpire an is not to take sides or to show any favour or disfavour to any party. In other
words, it has only to decide as to which party has succeeded in proving its case according to law.

Therefore, the adversary system of trial enables an impartial and competent court to have a proper perspective of the
case.

However, CrPC requires the criminal courts to play a more active and positive role than that of a mere umpire in the contest
between the prosecution and the accused person. For example, according to section 228 and section 240, the charge
against the acused person shall be framed by the court and not by the prosecution.
2 Independent, Impartial and Competent Judges

The most indispensable condition for a fair trial is to have an independent, impartial and competent judge to conduct the
trial. In this respect, the Code has made the following provisions:

(a) Separation of Judiciary from the Executive:

To ensure independent functioning othe judiciary in criminal matters, CrPC has brought about the separation of the
judiciary from the executive by requiring the appointment of Judicial Magistrates as distinct from the Executive
Magistartes and bringing them, for all practical purposes, under the direct supervision and control of the High Court in
each State. [Sections 6 to 19 of the Code]

Because of such separation, no Judge or Judicial Magistrate would be in any way connected with the prosecution, nor
would he be in direct administrative subordination to anyone connected with the prosecution.

(b) Courts to be Open:

Public trial in open court acts as a check against judicial caprice and serves as a powerful weapon instrument for creating
confidence among people in fairness, objectivity and impartiality of the administration of the criminal justice.

Section 327 of the Code provides that subject to such reasonable restrictions as the court may consider necessary, the
place in which the court is held shall be an open court to which the public generally may have access.
(c) Judge or Magistrate not to be Personally Intersted in the Case - (Nemo debet esse judex in propria causa - No man ought
to be a judge in his own cause):
The essence of the abovemnetioned maxim has been incorporated in Section 479 of the Code which provides thus:
• No judge or Magistrate shall, except with the permission of the higher appellate court, try or commit for trial any case to
or in which he is a party, or personally interested; and
• No judge or Magistrate shall hear an appeal from any judgment or order passed or made by himself.
Note: Section 480: This section provides that no pleader who practices in the court of any Magistrate shall sit as a Magistrate
in that court or in any court within the local jurisdiction of that court.

(d) Transfer of Cases to Secure Impartial Trial:

According to Section 190(1)(c), a Magistarte empowered to take cognizance of an offence may do so upon his own knowledge
about the commission of an offence.
In such a case the accused must be informed before any evidence is taken that he is entitled to have the case tried by
another Magistarte. [Section 191]

Power of Supreme Court to Transfer Cases and Appeals [Section 406]

(1) Whenever it is made to appear to the Supreme Court that an order under this section is expedient for the ends of justice, it
may direct that any particular case or appeal be transferred from one High Court to another High Court or
from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to
another High Court.
(2) The Supreme Court may act under this section only on the application of the Attorney- General of India or of a party
interested..........
Note: We will discuss the power of Supreme Court to transfer cases in detail with the help of Zahira Habibullah Sheikh v.
State of Gujarat (2004) 4 SCC 158.
Section 407: Power of High Court to Transfer Cases and Appeals:
Whenever it is made to appear to the High Court that a fair an impartial inquiry or trial cannot be held in any criminal court
subordinate to it, it may, subject to the conditions provided under Section 407, order that:
(i) any offence be inquired into or tried by any other competent court, or

(ii) that any particular case or class of casesbe transferred from from a criminal court subordinate to its authority to any other
criminal court or equal or superior jurisdiction etc. [Section 407]

Note: Sessions Court has been given the power of 'Transfer of Cases' in Section 408 respectively, and such powers can be used
in appropriate cases as a means for securing a fair and impartial trial.

(e) Competent Judges made available through Hierarchy of Courts

An overview of the provisions regarding the constitution of criminal courts will show their hierarchical structure (See,
Section 6, Sections 9-19)

The hierarchy of courts is desirable and necessary for marshalling of the limited resources available for the administration
of the criminal justice.

For instance, complicated cases of heinous offences would attract severe punishments and therefore these cases should be
handled with great care by more experienced and qualified judges.

On the other hand, in case of petty offences inviting only light punishments, it may be more expedient to have quick trials
and speedy disposals and such cases are handled by the courts lower in hierarchy.
Note 1: Trial of rape cases, as far as practicable shall be conducted by a court presided by a woman.[See, Proviso to Section
26]

Note 2: Children below 18 years of age accused of violations of law are not criminals and, therefore, their cases should be
handled with great care and understanding by experienced and qualified judges. Therefore, according to Section 27 the
juvenile offenders in respect of certain offences may be tried by the court of a Chief Judicial Magistrate.

3. Both Parties, Prosecution & Defence/Accused, to be Represented by Competent Lawyers:

To secure fair trial it would not only be necessary to have competent and independent judges (as discussed above) but also to
have competent and able lawyers adequately representing the parties before the court.

(a) Prosecutor Representing the State:

Generally, in a criminal trial, the State representing the society comes before the criminal court and seeks punishment to
the accused person suspected of having committed the crime.

The Public Prosecutor or the Assistant Public Prosecutor represents the State in criminal trials. [Provisions regarding the
qualifications and appointments of Public Prosecutor and APP are contained in Sections 24 and 25]

Note: In cases instituted on complaint, the complainant and not the State is the prosecuting party. But even in such a case,
the State through its Public Prosecutor or the APP, can step in and take charge of the prosecution.
Relevant provisions in this Regard - Section 301 which reads thus:

The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written
authority before any Court in which that case is under inquiry, trial or appeal. [Section 301(1)]

If in any such case, any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or
Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act
therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the
Court, submit written arguments after the evidence is closed in the case. [Section 301(2)]

Section 302: Permission to conduct prosecution.

Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a
police officer below the rank of Inspector; but no person, other than the Advocate General or Government Advocate or a
Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission:

Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the
offence with respect to which the accused is being prosecuted. [Section 302 (1)]

Any person conducting the prosecution may do so personally or by a pleader.[Section 302(2)]

(b) Representation of the Accused by a Lawyer:
In a criminal trial accused is entitled to hire any lawyer to defend himself against the case of prosecution.

Relevant Provisions in this regard are as follows:

Article 22(1): No person who is arrested shall be denied the right to consult and to be defended by a legal practitioner of
his choice.
Similarly according to Section 303 any person accused of an offence before a Criminal Court, or against whom proceedings
are instituted under this Code, may of right be defended by a pleader of his choice.

Note: Right to consult a lawyer for the purposes of defence begins from the time of arrest of the accused person and even
before the actual beginning of the trial.

However, considering that most of the accused persons in India are uneducated and poor and are often unable to engage
lawyers for their defence, it is highly important and necessary that proper arrangements are made for making the legal
services available to them.
Section 304 of the Code has, therefore, made provision to provide a lawyer to the indigent accused person in a trial before
a Sessions Court; further the Code also enables a State Government to extend this right to any class of trials before other
courts in the State.

Article 39-A is also relevant to secure the right to free legal aid to any indigent accused person. It reads thus:
The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in
particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for
securing justice are not denied to any citizen by reason of economic or other disabilities.
 In Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 98, the Supreme Court, after referring to the consitutional directive
contained in Article 39-A regarding equal justice and free legal aid, and also approvingly referring to the creative
interpretation of Article 21 of the Constitution and observed thus:
The right to free legal services is, therefore, clearly an essential ingredient of 'reasonable, fair and just' procedure for a person
accused of an offence and it must be held implicit in the guarantee of Article 21. This is constitutional right of every accused
person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty and indigence and
the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice
so require, provided of course the accused person does not object to the provision of such lawyer.

Note: On the abovementioned feature we will discuss in detail the decision of Supreme Court in Mohd. Ajmal Amir Kasab v.
State of Maharashtra, (2012) 9 SCC 1.
In Suk Das v. UT of Arunachal Pradesh, (1986) 2 SCC 401, it was held by the Supreme Court that the trial court is under an
obligation to inform the accused that if he is unable to engage a lawyer on account of poverty, he is entitled to obtain free
legal services at the cost of the State.
Relevant Case Law on this Issue: Mohd. Ajmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1. & Mohd. Hussain v. State
(Govt. of NCT of Delhi) (2012)9 SCC 408

4. Convenient Venue of the Trial:

The place of trial should be convenient to the accused person and should not cause any impediments in the preparation of
his defence.

The provisions regarding venue, i.e. the place of enquiry or trial are contained under Sections 177 to 189. These provisions
are essentially meant to facilitate the fair trial.
5. Presumption of Innocence and Burden of Proof
The adversary system of trial that we have adopted is based on the accusatorial method; and the burden of proving the
guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the court cannot record a finding of
the guilt of the accused.
Every criminal trial begins begins with the presumption of innocence in favour of the accused; and the Code is so drafted
that every criminal trial should begin with and be throughout governed by this essential presumption.

6. Expeditious/Speedy Trial
A criminal trial which drags on for unreasonably long time is not a fair trial. Supreme Court has recognized right to speedy
trial as an essential ingredient of 'just, fair and reasonable' procedure guranteed by Article 21 and it is constitutional
obligation of the State to devise such a procedure as would ensure speedy trial to the accused. [See, Hussainara Khatoon
v. State of Bihar, (1980) 1 SCC 98]

This right begins with actual restraint imposed by arrest and consequent incarceration and continues at all stages, namely
the stage of investigation, inquiry, trial, appeal and revision so that any possible prejudice that may result from
impermissible ad avoidable delay from the time of commission of the offence till it consummates into a finality can be
dealt with.
Note: Courts in India have held that it is neither advisable nor feasible nor judicially permissible to draw or prescribe an outer
limit for conclusion of all criminal proceedings.

Wherever there is any allegation of violation of right to speedy trial, the accused can approach to writ courts for getting
appropriate relief for infringement of his fundamental right to speedy trial and the courts have to perform a balancing act
by taking into consideration all attending circumstances and to decide whether the right to speedy trial has been dnied or
not.
 According to Section 309(1) in every inquiry or trial, the proceedings shall be held as expeditiously as possible, and, in
particular, when the examination of witnesses has once begun, and same shall be continued from day-to-day until all the
witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following
day to be necessary for reasons to be recorded.

When the inquiry or trial relates to an offence under Section 376, Section 376A, Section 376AB, Section 376B, Section
376C, Section 376D, Section 376DA, Section 376DB of IPC, the inquiry or trial shall be completed within a period of 2
months from the date of filing of the charge-sheet. [Proviso to Section 309(1)]

According to Section 309(2), if the Court, after taking cognizance of an offence, or commencement of trial, finds it
necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for
reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers
reasonable, and may by a warrant remand the accused if in custody:

Circumstances in which no Adjournment or Postponement shall be Granted [Provisos to Section 309(2)]

When witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except
for special reasons to be recorded in writing.
No adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence
proposed to be imposed on him.
No adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that
party.
Note: The fact that the pleader of a party is engaged in another Court, shall not be ground for adjournment.
7. Rights of Accused Persons at the Trial: A far trial implies that it should be fair, both to the prosecution as well as the
accused person. Therefore, the following rights in favour of the accused have been recognised by the Code, with a view to
make the trial fair to the accused person:

(i) Right to Know the Accusation: In order to enable the accused to make preparation for his defence, it is essential that he be
informed of the accusations against him.
In serious offences (i.e. in the trial of warrant cases) the trial court is manadatorily required to frame in writing a formal
charge and then to read and explain the charge to the accused person. [See, Section 228, 240 and 246]

(ii) Trial should be Conducted in the Presence of the Accused:

The personal presence of the accused throughout his trial would enable him to understand properly the prosecution case
as it unfolds in the court.
A trial and a decision behind the back of the accused person is not contemplated by the provisons of the Code.
The requirement of the presence of the accused during his trial can be implied from the provisions which allow the court to
dispense with the personal attendance of the accused under certain circumstances. [See, Sections 205, 273 etc.]

Section 317, however makes an exception to the above rule and empowers the court to dispense with the personal
attendance of the accused person at his trial under certain circumstances. It reads thus:

At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the
personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently
disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his
attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct
the personal attendance of such accused.
(iii) Evidence to be Taken in Presence of Accused:

Except as otherwise provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence
of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader. [Section 273]

However, it should not be understood that the above rule is applicable even where the accused by his own conduct makes
recording of evidence in his presence an impossibility.

Whenever, any evidence is given in a language not understood by the accused, and he is present in court in person, it shall
be interpreted in open court in a language understood by him. [Section 279]

An accused person may be of unsound mind and thus unable to understand the proceedings. To take care of such a case,
special provisions have been made in Sections 328- 339 of the Code.

Procedure where Accused does not Understand Proceedings [Section 318]

If the accused, though not of unsound mind, cannot be made to understand the proceedings, the Court may proceed with
the inquiry or trial; and, in the case of a Court other than a High Court, if such proceedings result in a conviction, the
proceedings shall be forwarded to the High Court with a report of the circumstances of the case, and the High Court shall
pass thereon such order as it thinks fit.

While recording the evidence of an alleged victim of sexual offence or rape under 18 years, the court shall ensure that the
woman is not confronted by the accused.
(iv) Right to Cross-examine Prosecution Witnesses:
Right to cross-examine prosecution witnesses is a very important right for the purposes of putting forward an effective
defence.
A criminal trial which denies the accused person the right to cross-examination prosecution witnesses is based on weak
foundation and cannot be considered as a fair trial.

(v) Right to Produce Evidence in Defence:

Though the burden of proving the guilt is entirely on the prosecution yet in every criminal trial accused ought to be
permitted to adduce evidence in his defence to disprove the prosecution case.
In other words a criminal trial in which the accused is not given opportunity to give evidence to disprove the prosecution
cannot be considered as just and fair trial.

(vi) Right to have Reasoned Decisions:

Trial court is expected to notice, consider and discuss, however briefly, the evidence of various witnesses as well as the
arguments addressed at the bar. This requirement is also applicable to the decisions of the appellate and revisional courts.

(vii) Right to protection against self-incrimination as stipulated by Article 20(3) of the Constitution.

(vii) Doctrine of 'autrefois acquit' and 'autrefois convict':

According to this doctrine, if a person is tried and acquitted or convicted o an offence, he cannot be tried again for the same
offence or on the same facts for any other offence. This doctrine has been substantially incorporated in Article 20(2) of the
Constitution and is also embodied in Section 300 of the Code.
Therefore, the second or subsequent trial in violation of the above doctrine would mean unjust harassment of the accused
person and can be considered as anaything but fair and has been prohibited by both by the Constitution and the Code.
Section 300 of the Code reads thus:
300. Person once Convicted or Acquitted not to be Tried for Same Offence.
(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such
offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on
the same facts for any other offence for which a different charge from the one made against him might have been made
under sub- section (1) of section 221, or for which he might have been convicted under sub- section (2) thereof.

(2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for
any distinct offence for which a separate charge might have been made against him at the former trial under sub- section
(1) of section 220.

(3) A person convicted of any offence constituted by any act causing consequences which, together with such act,
constituted a different offence from that of which he was convicted, may be afterwards tried for such last- mentioned
offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he
was convicted.

(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or
conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may
have committed if the Court by which he was first tried was not competent to try the offence with which he is
subsequently charged.

(5) A person discharged under Section 258 shall not be tried again for the same offence except with the consent of the Court
by which he was discharged or of any other Court to which the first- mentioned Court is subordinate.
(6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 , (10 of 1897 ) or of
section 188 of this Code.
Explanation: The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this
section.
Illustrations:
(a) A is tried upon a charge of theft as a servant and acquitted. He cannot afterwards, while the acquittal remains in force, be charged
with theft as a servant, or, upon the same facts, with theft simply, or with criminal breach of trust. [On sub-section (1)]

(b) A is tried for causing grievous hurt and convicted. The person injured afterwards dies. A may be tried again for culpable homicide.

(c) A is charged before the Court of Session and convicted of the culpable homicide of B. A may not afterwards be tried on the same facts
for the murder of B.

(d) A is charged by a Magistrate of the first class with, and convicted by him of, voluntarily causing hurt to B. A may not afterwards be tried
for voluntarily causing grievous hurt to B on the same facts, unless the case comes within sub- section (3) of this section.

(e) A is charged by a Magistrate of the second class with, and convicted by him of, theft of property from the person of B. A may
subsequently be charged with, and tried for, robbery on the same facts.[On sub-section (4)]

(f) A, B and C are charged by a Magistrate of the first class with, and convicted by him of, robbing D. A, B and C may afterwards be charged
with, and tried for, dacoity on the same facts. [On sub-section (4)]
When the accused appears or is brought before the court for trial of an offence he can raise the plea that he was earlier
tried for the same offence and was convicted or acquitted of the same and that according to the principle of autrefois
convict or autrefois acquit which is recognised as a fundamental right under Article 20(2) of the Constitution and has
been clearly embodied in Section 300 of the Code.
 Rights of Victims under CrPC

Relevant Provisions: Sections 2(wa), Proviso to Section 24(8), Proviso to Section 157(1), Section 164-A, Section 357, Section
357A, Section 357B, Section 357C and Section 372.

 In the case of Zahira Habibulla H. Shiekh & Anr. v. State of Gujarat and Ors. which is known as ‘Best Bakery Case’
Supreme Court observed, “denial of a fair trial is as much injustice to the accused as is to the victim and the society.
Concept of fair trial is triangulation.”

Definition of Victim: According to Section 2(wa) “Victim” means a person who has suffered any loss or injury caused by
reason of the act or omission for which the accused person has been charged and
the expression “victim” includes his or her guardian or legal heir.

 The Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.
[Proviso to Section 24 (8) Inserted by the Code of Criminal Pocedure (Amendment) Act, 2008]

 In relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the
victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or
guardian or near relatives or social worker of the locality. [Proviso to Section 157(1)]

Note: Victim has an important role in the process of Plea Bargaining. [We will discuss law relating Plea Bargaining in detail]
Medical Examination of the Victim of Rape [Section 164A inserted by the Code of Criminal Procedure (Amendment) Act
2005:
 Where, during the stage when an offence of committing rape or attempt to commit rape is under investigation, it is
proposed to get the person of the woman with whom rape is alleged or attempted to have been committed or attempted,
examined by a medical expert,
 such examination shall be conducted by a registered medical practitioner employed in a hospital run by the Government or
a local authority and in the absence of such a practitioner, by any other registered medical practitioner, with the consent of
such woman or of a person competent to give such consent on her behalf and
 such woman shall be sent to such registered medical practitioner within 24 hours from the time of receiving the
information relating to the commission of such offence.

Section 357- Order to pay Compensation:

(1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the
Court may, when passing judgment, order the whole or any part of the fine recovered to be applied—

(a) in defraying the expenses of properly incurred in the prosecution;

(b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the
opinion of the Court, recoverable by such person in a Civil Court;

(c) when any person is convicted of any offence for having caused the death of another person or of having abetted the
commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of
1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death;
(d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or
cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property
knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the
loss of the same if such property is restored to the possession of the person entitled thereto.

(2) If the fine is imposed in a case which is subject to appeal no such payment shall be made before the period allowed for
presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal.

(3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the
accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered
any loss or injury by reason of the act for which the accused person has been so sentenced.
Victim compensation Scheme [Section 357-A]
(1) Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the
purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who
require rehabilitation.

(2) Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State
Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme
referred to in sub-section (1).

(3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not
adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it
may make recommendation for compensation.

(4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or
his dependents may make an application to the State or the District Legal Services Authority for award of compensation.

(5) On receipt of such recommendations or on the application under sub-section (4), the State or the District Legal Services
Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months.

(6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for
immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not
below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief
as the appropriate authority deems fit.
Compensation to be in addition to fine under section 326A or section 376AB, Section 376D, Section 376DA and Section DB of
Indian Penal Code [Section 357-B]
 The compensation payable by the State Government under section 357A shall be in addition to the payment of fine to the
victim under section 326A, section 376AB, section 376D, section 376DA and section 376DB of the Indian Penal
Code.Section

Treatment of Victims [Section 357-C]

 All hospitals, public or private, whether run by the Central Government, the State Government, local bodies or any other
person, shall immediately, provide the first-aid or medical treatment,free of cost, to the victims of any offence covered
under section 326A, 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or section 376E of the IPC and shall immediately
inform the police of such incident.

Compensation to Persons Groundlessly Arrested [Section 358]

(1) Whenever any person causes a police officer to arrest another person, if it appears to the Magistrate by whom the case is
heard that there was no sufficient ground for causing such arrest, the Magistrate may award such compensation, not
exceeding one thousand rupees, to be paid by the person so causing the arrest to the person so arrested, for his loss of time
and expenses in the matter, as the Magistrate thinks fit.

(2) In such cases, if more persons than one are arrested, the Magistrate may, in like manner, award to each of them such
compensation, not exceeding one thousand rupees, as such Magistrate thinks fit.

(3) All compensation awarded under this section may be recovered as if it were a fine, and, if it cannot be so recovered, the
person by whom it is payable shall be sentenced to simple imprisonment for such term not exceeding 30 days as the
Magistrate directs, unless such sum is sooner paid.
Proviso to Section 372: The victim shall have a right to prefer an appeal against any order passed by the Court acquitting the
accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to
which an appeal ordinarily lies against the order of conviction of such Court.
 1

Summoning of Additional Accused u/s 319 CrPC

S.S. Upadhyay
Former District & Sessions Judge/
Former Addl. Director (Training)
Institute of Judicial Training & Research, UP, Lucknow.
Member, Governing Body,
Chandigarh Judicial Academy, Chandigarh.
Former Legal Advisor to Governor
Raj Bhawan, Uttar Pradesh, Lucknow
Mobile : 9453048988
E-mail : [email protected]
Website: lawhelpline.in

1. Twin requirements for summoning an additional accused u/s 319

CrPC : Twin requirements for summoning an additional accused u/s 319
CrPC are as under :
(i) That from the evidence it appears to the court that such person has
committed any offence.
(ii) That such a person could be tried together with the accused already
facing trial. See : R. Dineshkumar Vs. State, (2015) 7 SCC497.
2. Power u/s 319 CrPC is discretionary : Power to summon an additional
accused u/s 319 CrPC to face trial is discretionary and cannot be fettered
either by calling it extraordinary or exercisable only in exceptional
circumstances. It is left to the judicial discretion of the court to decide to
proceed or not to proceed against person in terms of Sec. 319 CrPC. See :
1. Sarojben Ashwin kumar Shah Vs. State of Gujrat and another 2011 (74) ACC 951
(SC)
2. Rajendra Singh Vs. State of UP, AIR 2007 SC 2786
3. Hardeep Singh Vs. State of Punjab, 2009 (65) ACC 768 (SC)

3. Relevant considerations for exercising power u/s 319 CrPc. : For

exercising power to summon a person as accused u/s 319 CrPc, the
relevant considerations for the court is to see as to whether there are
sufficient grounds to proceed against the accused and the evidence of the
witnesses shows complicity of the accused with the crime. See : Golla
Deva Veram vs. Karanam Balarama Krishna Murthy, (2010) 3 SCC
(Cri.) 628
 2

4. Recording of satisfaction by trial court regarding likelihood of

conviction of proposed accused must for summoning u/s 319 Cr PC :
Before a court exercises its discretionary jurisdiction in terms of section
319 of the code of criminal procedure, it must arrive at the satisfaction
cused so summoned is in all likelihood would be convicted. Such
satisfaction can be arrived at inter alia upon completion of the cross-
examination of the said witness. For the said purpose, the court concerned
may also like to consider other evidence.
1. Mohd.Shafi Vs. Mohd. Rafiq, 2007(58)ACC 254(SC)
2. Sarabjit Singh vs. State of Punjab, (2010) 2 SCC (Criminal) 141
3. Michael Machado Vs. CBI, AIR 2000 SC 1127
5(A). Power u/s 319 CrPC being extraordinary to be exercised sparingly :
Power u/s 319 CrPC to summon a person as accused should be exercised
sparingly keeping in mind all the attending circumstances and only if
compelling reasons exist for taking cognizance against the person other
than the accused. See---
1. Michael Machado Vs. CBI, 2000 (3) SCC 262
2. Prasanna Das Vs. State of Orissa, 2004 (13) SCC 30
3. Krishnappa Vs. State of Karnataka, (2004) 7 SCC 792

5(B). Summoning of additional accused u/s 319 CrPC without evidence held
improper: This was basically a matrimonial dispute wherein husband/
complainant had leveled allegations against his wife and her other family
members. Though in the FIR, the complainant had mentioned that 15
women and 35 men had come by vehicles but names of 11 persons alone
were disclosed in the FIR. In the statements recorded under Section 161
CrPC, the complainant and his witnesses had not disclosed any other
names except the 11 persons named in the FIR. Thus, the complainant had
sought to cast net wide so as to include numerous other persons while
 3

moving an application u/s 319 CrPC without there being primary evidence
about their role in house trespass or of threatening the complainant. The
Supreme Court held that large number of people would not come to house
of the complainant and would return without causing any injury as they
were said to be armed with weapons like crowbar, knife and ripper etc. In
the FIR or in the statements recorded u/s 161 CrPC, names of the
appellants or any other description had not been given so as to identify
them. The allegations in the FIR were vague and could be used any time to
include any person in absence of description in the FIR to identify such
persons. There was no assertion in respect of the villages to which the
additional accused belonged. Therefore, there was no strong or cogent
evidence to make the appellants stand the trial for offences under Sections
147, 448, 294(b) and 506 of the IPC. Mere disclosure of names of the
appellants could not be said to be strong and cogent evidence to make
them to stand trial under Section 319 CrPC, especially when the
complainant was a husband and had initiated criminal proceedings against
the family of his in-laws and when their names or other identity were not
disclosed at the first opportunity. See: Periyasami and others Vs. S.
Nallasamy, AIR 2019 SC 1426.
6. Supreme Court guidelines for exercising powers u/s 319 CrPC : In the
case of Sarojben Ashwin Kumar Shah Vs. State of Gujarat, 2011(74) ACC
951 (SC)(para 16), the Hon'ble Supreme Court has drawn following
guidelines for exercising the jurisdiction by courts u/s 319 CrPC :
(i) The Court can exercise the power conferred on it under Section 319 of the
Code suo motu or on an application by someone.
(ii) The power conferred under Section 319(1) applies to all Courts including
the Sessions Court.
(iii) The phrase "any person not being the accused" occurring in section 319
does not exclude from its operation an accused who has been released by
the police under Section 169 of the Code and has been shown in column 2
of the charge-sheet. In other words, the said expression covers any person
 4

who is not being tried already by the Court and would include person or
persons who have been dropped by the police during investigation but
against whom evidence showing their involvement in the offence comes
before the Court.
(iv) The power to proceed against any person, not being the accused before the
Court, must be exercised only where there appears during inquiry or trial
sufficient evidence indicating his involvement in the offence as an accused
and not otherwise. The word "evidence" in section 319 contemplates the
evidence of witnesses given in Court in the inquiry or trial. The Court
cannot add persons as accused on the basis of materials available in the
charge-sheet or the case diary but must be based on the evidence adduced
before it. In other words, the Court must be satisfied that a case for
addition of persons as accused, not being the accused before it, has been
made out on the addition let in before it.
(v) The power conferred upon the Court is although discretionary but is not to
be exercised in a routine manner. In a sense, it is an extraordinary power
which should be used very sparingly and only if evidence has come on
record which sufficiently establishes that the other person has committed
an offence. A more doubt about involvement of the other person on the
basis of the evidence let in before the Court is not enough. The Court must
also be satisfied that circumstances justify and warrant that the other
person be tried with the already arraigned accused.
(vi) The Court while exercising its power under Section 319 of the Code must
keep in view full conspectus of the case including the stage at which the
trial has proceeded already and the quantum of evidence collected till then.
(vii) Regard must also be had by the Court to be constraints imposed in Section
319(4) that proceedings in respect of newly added persons shall be
commenced afresh from the beginning of the trial.
(viii) The Court must, therefore, appropriately consider the above aspects and
then exercise its judicial discretion."
 5

7. Person named in FIR but not charge sheeted can still be summoned
u/s 319 CrPC---A person who was named as accused in FIR but was not
charge sheeted can still be summoned by the court u/s 319 Cr.PC. See---
1. Bholu Ram Vs. State of Punjab, JT 2008 (9)SC 504
2. Rajindra Singh Vs. State of UP, AIR 2007 SC 2786
3. Ram Awadh Vs. State of UP, 2005(2) ACr.R 1233 (All.)
4. Surendra Kumar Agrawal Vs. State of UP, 2003(3) ACR 2290(All.)
5. Smt. Rukhsan Khatoon Vs. Sakhawat Hussain, AIR 2002 SC 2342
8. A person not named in FIR can be summoned u/s 319 CrPC---A
person not named in FIR and not charge sheeted can be summoned u/s 319
CrPC. See---
1.Guriya Vs. State of Bihar, (2007) 8 SCC 224
2. Hardeep Vs. State of Punjab, 2009 (65) ACC 768 (para 42)
3. Bholu Ram Vs. State of Punjab, JT 2008 (9)SC 504

9. Satisfaction Of IO not to be allowed to frustrate the purpose of

Sec.319 Cr PC--- Satisfaction of the investigating officer (on alibi of
accused) should not be given primacy over summoning of the accused u/s
319 CrPC otherwise the very purpose of Sec. 319 CrPC would be
frustrated. See---Y.Saraba Reddy Vs. Puthur Rami Reddy, 2007(3)A
Cr.R 2438 (SC) (Three- Judge Bench)

10. Defence plea like alibi cannot be entertained at the stage of Sec. 319
CrPC---Satisfaction of the investigating officer on alibi of accused should
not be given primacy over summoning of the accused u/s 319 Cr.P.C
otherwise the very purpose of Sec. 319 Cr.PC would be frustrated. See---
1. Y. Saraba Reddy Vs. Puthur Rami Reddy, 2007(3)A Cr.R 2438 (SC) (Three- Judge
Bench)
2. Krishna Kumar Rai Vs. State of UP, 2009(1) ACR 414 (All.)
3. Rajindra Singh Vs. State of UP, AIR 2007 SC 2786
 6

Note- ACR = Allahabad Criminal Rulings.

11. A new accused may be summoned u/s 319 CrPC even without
recording any evidence during trial by the Sessions Judge : Overruling
its earlier Three-Judge Bench decision in Ranjit Singh Vs. State of Punjab,
1998 (37) ACC 768 (SC) (Three-Judge Bench) and giving approval to its
division Bench decision in Kishun Singh Vs. State of Bihar, 1993 (30)
ACC 167 (SC), a Constitution Bench of the Hon'ble Supreme Court, in the
case noted below, has ruled thus : "Sessions Court had jurisdiction on
committal of a case to it take cognizance of the offences against the
persons not named as offenders but whose complicity in the case would be
evident from the materials available on record. Hence, even without
recording evidence, upon committal u/s 209 CrPC, the Sessions Judge may
summon those persons shown in column 2 of the police report to stand
trial alongwith those already named therein. The Sessions Judge acting as
a court of original jurisdiction could issue summons u/s 193 CrPC on the
basis of the records transmitted to him as result of the committal order
passed by the Magistrate. Once the case is committed to the court of
sessions by the Magistrate, court of sessions assumes original jurisdiction.
The Magistrate has to play passive role in committing the case to the court
of session and it cannot be said that part cognizance is taken by the
Magistrate and part cognizance by the Court of Sessions. Court of
Sessions has jurisdiction u/s 193 CrPC on committal of a case to it by the
Magistrate to take cognizance of offences against persons not named as
offenders and even without recording evidence upon committal u/s 209
CrPC, Sessions Judge may summons those persons shown in column No. 2
of the police report to stand trial along with those already named therein.
Sessions Judge has not to wait till the stage u/s 319 CrPC for proceeding
against whom prima facie case is made out from the material on record."
 7

See : Dharam Pal Vs. State of Haryana, 2013 (82) ACC 963 (Five-
Judge Bench) (paras 27, 28, 29 & 30)

11. Only evidence led before court to be considered at the stage of Sec. 319
CrPC--- Only evidence led before the court can be taken into
consideration at the time of disposal of the application u/s 319 of the CrPC.
Materials contained in the case diary or charge sheet cannot be looked into
at that stage as they do not constitute evidence. See---
1. Y.Saraba Reddy Vs. Puthur Rami Reddy, 2007(3)A Cr.R 2438 (SC)
2. Rajindra Singh Vs. State of UP, AIR 2007 SC 2786
12. An additional accused can be summoned u/s 319 CrPC merely on the
basis of deposition made by the witness in his examination-in-chief :
An additional accused can be summoned u/s 319 CrPC merely on the basis
of deposition made by the witness in his examination-in-chief See. R.
Dineshkumar Vs. State, (2015) 7 SCC497.
13. Cross Examination of PWs not necessary before disposal of
application u/s 319 CrPC : Cross Examination of PWs is not necessary
before disposal of application u/s 319 CrPC. See---
1.Rakesh Vs State of Haryana, (2001) 6 SCC 248
2.Harbhajan Singh Vs.State of Punjab, 2009(67)ACC 339(SC)
3.Hardeep Singh Vs. State of Punjab, 2009 (65) ACC 768 (SC)
4.Dilshad Vs. State of UP, 2016 (94) ACC 106 (All)
14. Cross examination of PWs may be allowed before disposal of
application u/s 319 CrPC---Before a court exercises its discretionary
jurisdiction in terms of Sec.319 CrPC, it must arrive at the satisfaction that
there exists a possibility that the accused so summoned in all likelihood
would be convicted. Such satisfaction can be arrived at inter alia upon
completion of the cross-examination of the said witness. For the said
purpose, the Court concerned may also like to consider other evidence.
See---Mohd. Shafi Vs. Mohd.Rafiq, 2007(58)ACC 254(SC)
 8

Note-The correctness of the decision in Mohd Shafi Vs. Mohd Rafiq (on the point of
necessity of cross examination of PW before exercising power u/s 319 CrPC) has
been doubted & referred to a Three-Judge Bench by the Supreme Court in
Harbhajan Singh Vs. State of Punjab, 2009(67)ACC 339(SC)& Hardeep Singh Vs.
State of Punjab, 2008(62) ACC 904(SC).
15. 01 Materials in case diary or charge sheet not to be considered at the
stage of Sec. 319 CrPC---Only evidence led before the court can be taken
into consideration at the time of disposal of the application u/s 319 of the
Cr.PC. Materials contained in the case diary or charge sheet or affidavits or
statements recorded u/s 161 CrPC cannot be looked into at that stage as
they do not constitute evidence. See---
1.Y.Saraba Reddy Vs. Puthur Rami Reddy, 2007(3)A CR 2438 (SC)
2.Rajendra Singh Vs. State of UP, AIR 2007 SC 2786
15.02. Non-filing of protest petition informant/ complainant against final
report u/s 173(2) CrPC not a bar against summoning of additional accused
u/s 319 CrPC: Fact that a protest petition had not been filed by the complainant
when the final report/ police report u/s 173(2) CrPC was submitted by the police
did not render the court powerless to exercise its power u/s 319 CrPC to summon
the additional accused on the basis of evidence which had emerged during trial.
See: Saeeda Khatoon Arshi Vs. State of UP, (2020) 2 SCC 323.
16. Belated application u/s 319 CrPC not to be rejected on the ground of
delayed moving of the same---An application moved u/s 319 Cr.PC at
belated stage of the proceedings cannot be rejected on the ground of
delay.See--- Y.Saraba Reddy Vs. Puthur Rami Reddy, 2007(3)ACR
2438 (SC)
17. An accused summoned u/s 319 CrPC can be tried even after
conclusion of trial of the co-accused--- An accused summoned u/s. 319
Cr.P.C. can be tried by the court even after the conclusion of the trial
of the co-accused. See---
1. Babubhai Bhimabhai Bokhiria Vs. State of Gujarat, AIR 2013 SC 3648
 9

2. Shashikant Singh Vs. Tarkeshwar Singh, (2002) 5 SCC 738

3. Mohit Singh Vs. State of U.P., 2010 (68) ACC 212 (All)
4. Rajendra Singh Vs. State of UP, AIR 2007 SC 2786

18. Person not summoned u/s 204 CrPC can be summoned u/s 319CrPC
after evidence u/s 244 CrPC--- Where a person was not summoned by the
magistrate u/s 204 Cr.PC but his name had surfaced in statement recorded
u/s 244 CrPC, a person can be summoned as accused u/s 319 CrPC as the
statement of witnesses recorded u/s 244 CrPC is evidence. See---Nazma
Vs. State of UP, 2010(2) ACR 1377 (All.)
Note- ACR = Allahabad Criminal Rulings.

19. De novo trial mandatory u/s 319(4) CrPC---The provision of de novo

trial u/s 319(4) CrPC is mandatory. It vitally affects the rights of a person
so brought before the Court. It would not be sufficient to only tender the
witnesses for the cross-examination of such a person. They have to be
examined afresh. Fresh examination in chief and not only their
presentation for the purpose of the cross-examination of the newly added
accused is the mandate of Sec. 319(4)CrPC. The words “could be tried
together with the accused” in Sec. 319(1)CrPC appear to be only directory.
See---
1. Hari Narayan G. Bajaj Vs. State of Maharshtra, 2010 (70) ACC 566(SC)
2. Rajendra Singh Vs. State of UP, AIR 2007 SC 2786

20. Fresh Examination-in-Chief of Pws must u/s 319 CrPC--- The

provision of de novo trial u/s 319(4) CrPC is mandatory. It vitally affects
the rights of a person so brought before the Court. It would not be
sufficient to only tender the witnesses for the cross-examination of such a
person. They have to be examined afresh. Fresh examination in chief and
not only their presentation for the purpose of the cross-examination of the
newly added accused is the mandate of Sec. 319(4)CrPC. The words
“could be tried together with the accused” in Sec. 319(1)CrPC appear to be
 10

only directory. See---Rajendra Singh Vs. State of UP, AIR 2007 SC

2786
21. An accused summoned u/s 319 CrPC cannot be discharged u/s 227
CrPC : An accused summoned under 319 CrPC cannot be discharged u/s
227 CrPC. See : Jogendra Yadav Vs. State of Bihar, (2015) 9 SCC 244.

22. An accused discharged earlier can be summoned u/s 319 CrPC--- Even
a person who has earlier been discharged would fall with in the sweep of
the power conferred by Sec. 319 CrPC. See---
1. Deepu Vs. State of MP, AIR 2019 SC 265.
2. Rajendra Singh Vs. State of UP, AIR 2007 SC 2786
3. Kishun Singh Vs. State of Bihar, (1993) 2 SCC 16
23. An accused already discharged cannot be summoned u/s 319 CrPC-
The provisions of Sec. 319 have to be read in consonance with the
provisions of Sec. 398. Once a person is found to have been the accused in
the case he goes out of the reach of Sec. 319. Whether he can be dealt with
under any other provisions of the Code is a different question. In the case
of the accused who has been discharged under the relevant provisions of
the Code, the nature of finality to such order and the resultant protection of
the persons discharged subject to revision under Sec. 398 may not be lost
sight of. Once a person was an accused in the case he would be out of
reach of Sec. 319. The crucial words in Sec. 319 are any person not being
the accused. See--- Sohan Lal Vs. State of Rajasthan, AIR 1990 SC
2158
24. An accused can be summoned u/s 319 CrPC even after the quashment
of proceedings against him u/s 482 CrPC---An accused can be
summoned u/s 319 CrPC even after the quashment of proceedings against
him u/s 482 CrPC. See---
1.Municipal Corp. of Delhi Vs. Ram Kishan Rohtagi, (1983) 1 SCC 1
2. Rajendra Singh Vs. State of UP, AIR 2007 SC 2786
 11

25. Hearing of proposed accused not to be done before summoning u/s 319
CrPC---A person proposed to be summoned as accused u/s 319 CrPC
cannot be heard under this Sec. prior to his summoning as accused.
Question of giving opportunity to him at that stage could not arise. See---
1.Hardeep Singh Vs. State of Punjab, 2009(65) ACC 768(SC)
2.Nagavva Vs. Veeranna, (1976) 3 SCC 736

26. Belated application u/s 319 Cr PC not to be allowed--- Where

application u/s 319 Cr PC was moved after 54 PWs were already
examined, it has been held that such application at so late stage should not
be allowed as it will frustrate the whole labour towards trial already done
by the court. See--- Michael Machado Vs. CBI, AIR 2000 SC 1127
27. Mere suspicion of complicity of accused not sufficient to summon u/s
319 CrPC---Mere suspicion is not sufficient to hold that there is a
reasonable prospect of convicting the accused of the offence (of criminal
conspiracy). See--- Michael Machado Vs. CBI, AIR 2000 SC 1127
28. Revision against an order u/s 319 CrPC maintainable : An order
rejecting application u/s 319 CrPC to summon additional accused in not an
interlocutory order. Revision lies against such an order passed u/s. 319
CrPC. See:
(i) Mohit Vs. State of UP, AIR 2013 SC 2248 (paras 21 & 22)
(ii) Khanna vs. Chief Secretary, AIR 1983 SC 595.

29. Issuing of notice to the proposed accused for hearing in revision filed
against an order rejecting application u/s 319 CrPC mandatory :
Where a criminal revision was filed before the sessions court against an
order rejecting application u/s 319 CrPC to summon additional accused,
relying upon its earlier decision in Manharibhai Muljibhai Kakadia Vs.
Shaileshbhai Mohanbhai Patel, (2012) 10 SCC 517 (Three-Judge
Bench), it has been ruled by the Hon'ble Supreme Court that a right of
hearing in revision had accrued in favour of the person proposed as
 12

accused before the lower court in the application moved u/s 319 CrPC and
the revision ought not to be decided without issuing notice and hearing to
such person. See : Mohit Vs. State of UP, AIR 2013 SC 2248 (para 29).
30. Remedy of revision bars remedy u/s 482 CrPC before High Court :
Inherent power of the High Court can be exercised when there is no
remedy (like revision etc.) provided in the CrPC for redressal of the
grievance. It is well settled that inherent power of the Court can ordinarily
be exercised when there is no express provision in the Code under which
order impugned can be challenged. See : Mohit Vs. State of UP, AIR
2013 SC 2248 (para 23)
31. Constitution Bench decision on Sec. 319 CrPC as reported in Hardeep
Singh Vs. State of Punjab, (2014) 3 SCC 92 (Five-Judge Bench)( para
117) : The questions referred by a Three-Judge Bench of the Supreme Court
to a Five-Judge Bench and the answers made by the Constitution Bench
thereto are as under :
Questions (i) and (iii)
What is the stage at which power under Section 319 CrPC can be exercised
?
AND
Whether the word "evidence" used in Section 319(1) CrPC has been used
in a comprehensive sense and includes the evidence collected during
investigation or the word "evidence" is limited to the evidence recorded
during trial ?

Answer :

Para 117.1 : In Dharm Pal Case, (Dharm Pal Vs. State of Haryana, (2014)
3 SCC 306) the Constitution Bench has already held that after
committal, cognizance of an offence can be taken against a person
not named as an accused but against whom materials are available
 13

from the papers filed by the police after completion of the

investigation. Such cognizance can be taken under Section 193
CrPC and the Sessions Judge need not wait till "evidence" under
Section 319 CrPC becomes available for summoning an additional
accused.

Para 117.2 : Section 319 CrPC, significantly, uses two expressions that have to
be taken note of i.e. (1) inquiry (2) trial. As a trial commences after
framing of charge, an inquiry can only be understood to be a pre-
trial inquiry. Inquiries under Sections 200, 2001, 2002 CrPC, and
under Section 398 CrPC are species of the inquiry contemplated by
Section 3139 CrPC. Materials coming before the court in course of
such inquiries can be used for corroboration of the evidence
recorded in the court after the trial commences, for the exercise of
power under Section 319 CrPC, and also to add an accused whose
name has been shown in Column of the Charge-sheet.

Para 117.3 : In view of the above position the word "evidence" in Section 319
CrPC has to be broadly understood and not literally i.e. as evidence
brought during a trial.

Question (ii): Whether the word "evidence" used in Section 319(1) CrPC could
only mean evidence tested by cross-examination or the court can
exercise the power under the said provision even on the basis of the
statement made in the examination-in-chief of the witness concerned
?

Answer

Para 117.4 : Considering the fact that under Section 319 CrPC a person against
whom material is disclosed is only summoned to face the trial and in
such an event under Section 319(4) CrPC the proceeding against
such person is to commence from the stage of taking of cognizance,
 14

the court need not wait for the evidence against the accused
proposed to be summoned to be tested by cross-examination.

Question (iv)What is the nature of the satisfaction required to invoke the power
under Section 319 CrPC to arraign an accsed ? Whether the power
under Section 319(1) CrPC can be exercised only if the court is
satisfied that the accused summoned will in all likelihood be
convicted ?

Answer

Para 17.5. : Though under Section 319(4)(b) CrPC the accused subsequently
impleaded is to be treated as if he had been an accused when the
court initially took cognizance of the offence, the degree of
satisfaction that will be required for summoning a person under
Section 319 CrPC would be the same as for framing a charge…..
The difference in the degree of satisfaction for summoning the
original accused is on account of the fact that the trial may have
already commenced against the original accused and it is in the
course of such trial that materials are disclosed against the newly
summoned accused. Fresh summoning of an accused will result in
delay of the trial, therefore, the degree of satisfaction for summoning
the accused (original and subsequent) has to be different.

Question (v): Does the power under Section 319 CrPC extend to persons not
named in the FIR or named in the FIR but not charge-sheet or who
have been discharged?

Answer

Para 117.6 : A person not named in the FIR or a person though named in the FIR
but has not been charge-sheeted or a person who has been
discharged can be summoned under Section 319 CrPC provided
from the evidence it appears that such person can be tried along with
 15

the accused already facing trial. However, insofar as an accused

who has been discharged is concerned the requirement of Section
300 and 398 CrPC has to be complied with before he can be
summoned afresh. Kindly See : Hardeep Singh Vs. State of
Punjab & Others, (2014) 3 SCC 92 (Five-Judge Bench).

32. Magistrate can summon some other person as accused not named in FIR or
charge-sheeted u/s 173(2) CrPC : Person who has not joined as accused in the
charge-sheet can be summoned at the stage of taking cognizance under S. 190.
Thus, the Magistrate is empowered to issue process against some other person,
who has not been charge-sheeted, but there has to be sufficient material in the
police report showing his involvement. In that case, the Magistrate is
empowered to ignore the conclusion arrived at by the investigating officer and
apply his mind independently on the facts emerging from the investigation and
take cognizance of the case. At the same time, it is not permissible at this stage
to consider any material other than that collected by the investigating officer.
See : Sunil Bharti Mittal Vs. CBI, AIR 2015 SC 923 (Three-Judge Bench).

********
 Witness Protection Scheme, 2018

PREFACE
Aims & Objective:

The ability of a witness to give testimony in a judicial setting or to

cooperate with law enforcement agencies and investigating officers without
fear of intimidation or reprisal is essential in maintaining the rule of law. The
objective of this Scheme is to ensure that the investigation, prosecution and
trial of criminal offences is not prejudiced because witnesses are intimidated or
frightened to give evidence without protection from violent or other criminal
recrimination. It aims to promote law enforcement by facilitating the protection
of persons who are involved directly or indirectly in providing assistance to
criminal law enforcement agencies and overall administration of Justice.
Witnesses need to be given the confidence to come forward to assist law
enforcement and Judicial Authorities with full assurance of safety. It is aimed
to identify series of measures that may be adopted to safeguard witnesses and
their family members from intimidation and threats against their lives,
reputation and property.

Need and justification for the scheme:

Jeremy Bentham has said that “Witnesses are the eyes and ears of
justice.” In cases involving heinous crimes, witnesses turn hostile because of
threat to life and property. Witnesses feel that there is no statutory legal-
obligation on the part of the State to extend any protection to them.
Hon’ble Supreme Court of India also held in State of Gujrat v. Anirudh
Singh(1997)6 SCC 514 that: “It is the salutary duty of every witness who has
the knowledge of the commission of the crime, to assist the State in giving
evidence.” Malimath Committee on Reforms of Criminal Justice System, 2003
said in its report that “By giving evidence relating to the commission of an
offence, he performs a sacred duty of assisting the court to discover the truth”.
In Zahira Habibulla H. Shiekh and Another v. State of Gujarat 2004 (4) SCC
158 while defining Fair Trial Hon’ble Supreme Court of India observed “If the
witnesses get threatened or are forced to give false evidence that also would not
result in a fair trial’’.
First ever reference to Witness Protection in India came in 14th Report of
the Law Commission of India in 1958. Further reference on the subject are
around in 154th and 178th report of the Law Commission of India. 198th Report of
the Law Commission of India titled as “Witness Identity Protection and
Witness Protection Programmes, 2006” is dedicated to the subject.
Hon’ble Supreme Court observed in Zahira case supra, “no country can
afford to expose its morally correct citizens to the peril of being harassed by
anti-social elements like rapists and murderers”. The 4th National Police
1
 Witness Protection Scheme, 2018

Commission Report, 1980 noted “prosecution witnesses are turning hostile

because of pressure of accused and there is need of regulation to check
manipulation of witnesses”.
Legislature has introduced Section 195A IPC in 2006 making Criminal
Intimidation of Witnesses a criminal offence punishable with seven years of
imprisonment. Likewise, statues namely Juvenile Justice (Care and Protection
of children) Act, 2015, Whistle Blowers Protection Act, 2011, Protection of
Children from Sexual Offences Act (POCSO Act) 2012 and National
Investigation Agency Act, 2008 and Scheduled Castes and Tribes (Prevention
of Atrocities) Act, 1989 also provide for safeguarding witnesses against the
threats. However no formal structured programme has been introduced as on
date for addressing the issue of witness protection in a holistic manner.
In recent years extremism, terrorism and organized crimes have grown and
are becoming stronger and more diverse. In the investigation and prosecution of
such crimes, it is essential that witnesses have trust in the criminal justice
system. Witnesses need to have the confidence to come forward to assist law
enforcement and prosecuting agencies. They need to be assured that they will
receive support and protection from intimidation and the harm that criminal
groups might seek to inflict upon them in order to discourage them from co-
operating with the law enforcement agencies and deposing before the court of
law. Hence, it is high time that a scheme is put in place for addressing the
issues of witness protection uniformly in the country.
Considering the need for such a scheme, Delhi had notified the Delhi
Witness Protection Scheme, 2015 vide notification No.F.11/79/2013/HP-11-
6650-6661 dated 30th July, 2015. However, the Hon’ble Supreme Court has
approved the Witness Protection Scheme, 2018 in the case of Mahender
Chawla & Ors v/s Union of India & Ors. Accordingly it has become
imperative to repeal the Delhi Witness Protection Scheme, 2015 and bring in its
place the Witness Protection Scheme, 2018 as approved by the Hon’ble
Supreme Court.

Scope of the Scheme:

Witness Protection may be as simple as providing a police escort to the

witness up to the Courtroom or using modern communication technology
(such as audio video means) for recording of testimony. In other more
complex cases, involving organized criminal group, extraordinary measures
are required to ensure the witness’s safety viz. anonymity, offering temporary
residence in a safe house, giving a new identity, and relocation of the witness
at an undisclosed place. However, Witness protection needs of a witness may
have to be viewed on case to case basis depending upon their vulnerability
and threat perception.
2
 Witness Protection Scheme, 2018

1. SHORT TITLE AND COMMENCEMENT:

(a) The Scheme shall be called “Witness Protection Scheme, 2018”

(b) It shall come into force from the date of its Notification in the Official
Gazette.
Part I

2. DEFINITIONS:

(a) "Code" means the Code of Criminal Procedure, 1973 (2 of 1974);

(b) “Concealment of Identity of Witness” means and includes any

condition prohibiting publication or revealing, in any manner, directly or
indirectly, of the name, address and other particulars which may lead to
the identification of the witness during investigation, trial and post-trial
stage;

(c) “Competent Authority” means a Standing Committee in each District

chaired by District and Sessions Judge with Deputy Commissioner of
Police (DCP) in the District as Member and Head of the Prosecution in
the District as its Member Secretary.

(d) “Family Member” includes parents/guardian, spouse, live-in partner,

siblings, children, grandchildren of the witness;

(e) "Form" means “Witness Protection Application Form” appended to this

Scheme;

(f) “In Camera Proceedings” means proceedings wherein the Competent

Authority/Court allows only those persons who are necessary to be
present while hearing and deciding the witness protection application or
deposing in the court.

(g) “Live Link” means and includes a live video link or other such
arrangement whereby a witness is not physically present in the courtroom
for deposing in the matter or interacting with the Competent Authority;

(h) “Witness Protection Measures” mean measures spelt out in Clause 7,

Part-III, Part-IV and Part V of the Scheme.

3
 Witness Protection Scheme, 2018

(i) "Offence" means those offences which are punishable with death or life
imprisonment or an imprisonment up to seven years and above and also
offences punishable under Section 354, 354A, 354B, 354C, 354D and 509
of IPC;
(j) "Threat Analysis Report" means a detailed report prepared and
submitted by the Head of the Police in District investigating the case with
regard to the seriousness and credibility of the threat perception to the
witness or his family members. It shall contain specific details about the
nature of threats faced by the witness or his family to their life, reputation
or property apart from analyzing the extent to which the person or persons
making the threat have the intent, motive and resources to implement the
threats.
It shall also categorize the threat perception apart from suggesting
the specific witness protection measures which deserve to be taken in the
matter;

(k) “Witness” means any person, who possesses information or document

about any offence;

(l) “Witness Protection Application” means an application moved by the

witness in the prescribed form before a Competent Authority through its
Member Secretary for seeking Witness Protection Order. It can be moved
by the witness, his family member, his duly engaged counsel or
IO/SHO/ACP- Sub Division/Jail Superintendent concerned;

(m) “Witness Protection Fund” means the fund created for bearing the
expenses incurred during the implementation of Witness Protection
Order passed by the Competent Authority under this scheme;

(n) “Witness Protection Order” means an order passed by the Competent

Authority detailing the witness protection measures to be taken;

(o) “Witness Protection Cell” means a dedicated Cell of State/UT Police or

Central Police Agencies assigned the duty to implement the witness
protection order.

4
 Witness Protection Scheme, 2018

Part II

3. CATEGORIES OF WITNESSES AS PER THREAT PERCEPTION:

Category „A‟ : Where the threat extends to life of witness or his family
members, during investigation/trial or thereafter.

Category „B‟ : Where the threat extends to safety, reputation or property

of the witness or his family members, during the
investigation/trial or thereafter.

Category „C‟ : Where the threat is moderate and extends to harassment

or intimidation of the witness or his family members,
reputation or property, during the investigation/trial or
thereafter.

4. STATE WITNESS PROTECTION FUND:

(a) There shall be a Fund, namely, the Witness Protection Fund from
which the expenses incurred during the implementation of Witness
Protection Order passed by the Competent Authority and other related
expenditure, shall be met.
(b) The Witness Protection Fund shall comprise the following:-
i. Budgetary allocation made in the Annual Budget by the State
Government;
ii. Receipt of amount of cost imposed/ordered to be deposited by
the courts/tribunals in the Witness Protection Fund
iii. Donations/contributions from Philanthropist/Charitable
Institutions/Organizations and individuals permitted by the
Government
iv. Funds contributed under Corporate Social Responsibility.

(c) The said Fund shall be operated by the Divisional Commissioner,

Government of National Capital Territory of Delhi.

5
 Witness Protection Scheme, 2018

5. FILING OF APPLICATION BEFORE COMPETENT AUTHORITY:

The application for seeking protection order under this scheme can be
filed in the prescribed form before the Competent Authority of the concerned
District where the offence is committed, through its Member Secretary along
with supporting documents, if any.

6. PROCEDURE FOR PROCESSING THE APPLICATION:

(a) As and when an application is received by the Member Secretary of

Competent Authority, in the prescribed form, it shall forthwith pass an
order for calling the Threat Analysis Report from the ACP/DCP in charge
of the concerned Police Sub-Division.
(b) Depending upon the urgency in the matter owing to imminent threat, the
Competent Authority can pass orders for interim protection of the witness
or his family members during the pendency of the application.
Provided that nothing shall preclude police from providing immediate
protection in case of grave and imminent threat to the life of applicant and
his family members.
(c) The Threat Analysis Report shall be prepared expeditiously while
maintaining full confidentiality and it shall reach the Competent Authority
within five working days of the receipt of the order.
(d) The Threat Analysis Report shall categorize the threat perception and also
include suggestive protection measures for providing adequate protection
to the witness or his family.
(e) While processing the application for witness protection, the Competent
Authority shall also interact preferably in person and if not possible
through electronic means with the witness and/or his family
members/employers or any other person deemed fit so as to ascertain the
witness protection needs of the witness.
(f) All the hearings on Witness Protection Application shall be held in-
camera by the Competent Authority while maintaining full
confidentiality.
(g) An application shall be disposed of within five working days of receipt of
Threat Analysis Report from the Police authorities.
(h) The Witness Protection Order passed by the Competent Authority shall
be implemented by the Witness Protection Cell of the State or the trial
Court, as the case may be. Overall responsibility of implementation of
all witness protection orders passed by the Competent Authority shall lie
on the Head of the Police in the State.
6
 Witness Protection Scheme, 2018

However the Witness Protection Order passed by the Competent

Authority for change of identity and/ or relocation shall be implemented
by the Department of Home of the concerned State.
(i) Upon passing of a Witness Protection Order, the Witness Protection Cell
shall file a monthly follow-up report before the Competent Authority.
(j) In case, the Competent Authority finds that there is a need to revise the
Witness Protection Order or an application is moved in this regard and
upon completion of trial, a fresh Threat Analysis Report shall be called
from the ACP/DCP in charge of the concerned Police Sub-Division.

7. TYPES OF PROTECTION MEASURES:

The witness protection measures ordered shall be proportionate to the

threat and shall be for a specific duration not exceeding three months at a
time. These may include:
(a) Ensuring that witness and accused do not come face to face during
investigation or trial;
(b) Monitoring of mail and telephone calls;
(c) Arrangement with the telephone company to change the witness’s
telephone number or assign him or her an unlisted telephone number;
(d) Installation of security devices in the witness’s home such as security
doors, CCTV, alarms, fencing etc;
(e) Concealment of identity of the witness by referring to him/her with the
changed name or alphabet;
(f) Emergency contact persons for the witness;
(g) Close protection, regular patrolling around the witness’s house;
(h) Temporary change of residence to a relative’s house or a nearby town;
(i) Escort to and from the court and provision of Government vehicle or a
State funded conveyance for the date of hearing;
(j) Holding of in-camera trials;
(k) Allowing a support person to remain present during recording of
statement and deposition;
(l) Usage of specially designed vulnerable witness court rooms which have
special arrangements like live links, one way mirrors and screens apart
from separate passages for witnesses and accused, with option to modify
the image of face of the witness and to modify the audio feed of the
witness’ voice, so that he/she is not identifiable;
(m) Ensuring expeditious recording of deposition during trial on day to day
basis without adjournments;

7
 Witness Protection Scheme, 2018

(n) Awarding time to time periodical financial aids/grants to the witness

from Witness Protection Fund for the purpose of re-location, sustenance
or starting new vocation/profession, if desired;
(o) Any other form of protection measures considered necessary.

8. MONITORING AND REVIEW:

Once the protection order is passed, the Competent Authority would

monitor its implementation and can review the same in terms of follow-up
reports received in the matter. However, the Competent Authority shall
review the Witness Protection Order on a quarterly basis based on the
monthly follow-up report submitted by the Witness Protection Cell.

Part III

9. PROTECTION OF IDENTITY :-

During the course of investigation or trial of any offence, an application

for seeking identity protection can be filed in the prescribed form before the
Competent Authority through its Member Secretary.

Upon receipt of the application, the Member Secretary of the Competent

Authority shall call for the Threat Analysis Report. The Competent Authority
shall examine the witness or his family members or any other person it deem
fit to ascertain whether there is necessity to pass an identity protection order.
During the course of hearing of the application, the identity of the
witness shall not be revealed to any other person, which is likely to lead to the
witness identification. The Competent Authority can thereafter, dispose of the
application as per material available on record.
One, an order for protection of identity of witness is passed by the
Competent Authority, it shall be the responsibility of the Witness Protection
Cell to ensure that identity of such witness/his or her family members
including name/parentage/occupation/address/digital footprints are fully
protected.

As long as identity of any witness is protected under an order of the

Competent Authority, the Witness Protection Cell shall provide details of
persons who can be contacted by the witness in case of emergency.
8
 Witness Protection Scheme, 2018

Part IV
10. CHANGE OF IDENTITY:-
In appropriate cases, where there is a request from the witness for change
of identity and based on the Threat Analysis Report, a decision can be taken
for conferring a new identity to the witness by the Competent Authority.

Conferring new identities includes new name/profession/parentage and

providing supporting documents acceptable by the Government Agencies.
The new identities should not deprive the witness from existing
educational/professional/property rights.

Part V
11. RELOCATION OF WITNESS:
In appropriate cases, where there is a request from the witness for
relocation and based on the Threat Analysis Report, a decision can be taken
for relocation of the witness by the Competent Authority.

The Competent Authority may pass an order for witness relocation to a

safer place within the State/UT or territory of the Indian Union keeping in
view the safety, welfare and wellbeing of the witness. The expenses shall be
borne from the Witness Protection Fund.

Part VI
12. WITNESSES TO BE APPRISED OF THE SCHEME:

Every State shall give wide publicity to this Scheme. The IO and the
Court shall inform witnesses about the existence of “Witness Protection
Scheme” and its salient features.

13. CONFIDENTIALITY AND PRESERVATION OF RECORDS:

All stakeholders including the Police, the Prosecution Department, Court

Staff, Lawyers from both sides shall maintain full confidentiality and shall
ensure that under no circumstance, any record, document or information in
relation to the proceedings under this scheme shall be shared with any

9
 Witness Protection Scheme, 2018

person in any manner except with the Trial Court/Appellate Court and that
too, on a written order.

All the records pertaining to proceedings under this scheme shall be

preserved till such time the related trial or appeal thereof is pending before a
Court of Law. After one year of disposal of the last Court proceedings, the
hard copy of the records can be weeded out by the Competent Authority
after preserving the scanned soft copies of the same.

14. RECOVERY OF EXPENSES:

In case the witness has lodged a false complaint, the Divisional

Commissioner, Government of National Capital Territory of Delhi can
initiate proceedings for recovery of the expenditure incurred from the
Witness Protection Fund.

15. REVIEW & APPEAL:

In case the witness or the police authorities are aggrieved by the decisions
of the Competent Authority, a review application may be filed within 15
days of passing of the orders by the Competent Authority.

16. REPEAL

The Delhi Witness Protection Scheme, 2015 hereby, stands repealed. The
cases pending before DSLSA shall, after notification of the scheme be
transferred to the concerned District Competent Authority.

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 Witness Protection Scheme, 2018

Witness Protection Application

under
Witness Protection Scheme, 2018

Before, (To be filed in duplicate)

The Competent Authority,

District …………………………………………………………

Application for:
1. Witness Protection
2. Witness Identity Protection
3. New Identity
4. Witness Relocation

1. Particulars of the
Witness (Fill in
Capital): -------------------------------------------
------------------------------------------
1) Name -------------------------------------------
2) Age -------------------------------------------
3) Father's Name -------------------------------------------
4) Residential -------------------------------------------
Address -------------------------------------------
5) Is witness -------------------------------------------
desirous of ------------------------------------------
Identity -------------------------------------------
protection/new -------------------------------------------
identity/witnes -------------------------------------------
s relocation, if
yes, give
reasons
6) Name and
other details
of family
members of
the witness
who are
receiving or
perceiving
threats .
7) Contact details
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 Witness Protection Scheme, 2018

(Mobile/e-
mail)

2. Particulars of
Criminal matter: -------------------------------------------
1) FIR No. -------------------------------------------
2) Under Section -------------------------------------------
3) Police Station -------------------------------------------
4) District -------------------------------------------
5) D.D. No. (in
case FIR not
yet registered)
6) Cr. Case No.
(in case of
private
complaint)
3. Particulars of the
Accused (if -------------------------------------------
available/known): -------------------------------------------
1) Name ------------------------------------------------------------------------
2) Address --------------
3) Phone No.
4) Email id
4. Name & other
particulars of the -------------------------------------------
person -------------------------------------------
giving/suspected of -------------------------------------------
giving threats

5. Nature of threat.
Please give brief -------------------------------------------
details of threat -------------------------------------------
received or -------------------------------------------
perceived in the -------------------------------------------
matter with specific
date, place, mode
and words used

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 Witness Protection Scheme, 2018

6. Type of witness
protection measures -------------------------------------------
prayed by/for the -------------------------------------------
witness -------------------------------------------
-------------------------------------------
-------------------------------------------

7. Details of Interim /
urgent Witness -------------------------------------------
Protection needs, if -------------------------------------------
required -------------------------------------------
-------------------------------------------
-------------------------------------------

• Applicant/witness can use extra sheets for giving additional information.

_____________________
Date: .............................. (Full Name with signature)
Place:..............................
UNDERTAKING
1. I undertake that I shall fully cooperate with the competent authority and the
Department of Home of the State and Witness Protection Cell.
2. I certify that the information provided by me in this application is true and correct to
my best knowledge and belief.
3. I understand that in case, information given by me in this application is found to be
false, competent authority under the scheme reserves the right to recover the
expensed incurred on me from out of the Witness Protection Fund.

_____________________
Date: .............................. (Full Name with signature)
Place:..............................

13
 Zahira Habibulla H. Sheikh v. State of Gujarat

(2004) 4 SCC 158

ARIJIT PASAYAT, J -

The present appeals have several unusual features and some of them pose very serious questions
of far reaching consequences. The case is commonly to be known as "Best Bakery Case".

 One of the appeals is by Zahira who claims to be an eyewitness to macabre killings allegedly as
a result of communal frenzy. She made statements and filed affidavits after completion of trial
and judgment by the trial Court, alleging that during trial she was forced to depose falsely
and turn hostile on account of threats and coercion. That raises an important issue regarding
witness protection besides the quality and credibility of the evidence before Court.

 The other rather unusual question interestingly raised by the State of Gujarat itself relates to
improper conduct of trial by the public prosecutor.

 Last, but not the least that the role of the investigating agency itself was perfunctory and not
impartial. Though its role is perceived differently by the parties, there is unanimity in their
stand that it was tainted, biased and not fair. While the accused persons accuse it for alleged
false implication, the victims' relatives like Zahira allege its efforts to be merely to protect the
accused.

The appeals are against judgment of the Gujarat High Court in Criminal Appeal No. 956 of 2003
upholding acquittal of respondents-accused by the trial Court. Along with said appeal, two other
petitions namely Criminal Miscellaneous Application No. 10315 of 2003 and Criminal Revision No.
583 of 2003 were disposed of.

The prayers made by the State for adducing additional evidence under Section 391 of the Code of
Criminal Procedure, 1973 (in short the 'Code'), and/or for directing retrial were rejected.
Consequentially, prayer for examination of witnesses under Section 311 of the Code was also
rejected.

In a nutshell the prosecution version which led to trial of the accused persons is as follows:
 Between 8.30 p.m. of 1.3.2002 and 11.00 a.m. of 2.3.2002, a business concern known as "Best
Bakery" at Vadodara was burnt down by an unruly mob of large number of people. In the
ghastly incident 14 persons died. The attacks were stated to be a part of retaliatory action to
avenge killing of 56 persons burnt to death in the Sabarmati Express.

 Zahira was the main eye-witness who lost family members including helpless women and
innocent children in the gruesome incident. Many persons other than Zahira were also
eye-witnesses. Accused persons were the perpetrators of the crime. After investigation charge
sheet was filed in June 2002.

 During trial the purported eye-witnesses resiled from the statements made during
investigation. Faulty and biased investigation as well as perfunctory trial were said to have
marred the sanctity of the entire exercise undertaken to bring the culprits to books. By
judgment dated 27.6.2003, the trial Court directed acquittal of the accused persons.

Zahira appeared before National Human Rights Commission (in short the 'NHRC') stating that she
was threatened by powerful politicians not to depose against the accused persons.

 On 7.8.2003: An appeal not up to the mark and neitherin conformity with the required care,
appears to have been filed by the State against the judgment of acquittal before the Gujarat
High Court.

 NHRC moved this Court and its Special leave petition has been treated as a petition under
Article 32 of the Constitution of India, 1950 (in short the 'Constitution').

 Zahira and another organisation - Citizens for Justice and Peace filed SLP (Crl.) No. 3770 of
2003 challenging judgment of acquittal passed by the trial Court.

 One Sahera Banu (sister of appellant-Zahira) filed the afore-noted Criminal Revision No. 583 of
2003 before the High Court questioning the legality of the judgment returning a verdict of
acquittal.

 Appellant-State filed an application (Criminal Misc. Application NO.7677 of 2003) in terms of

Sections 391 and 311 of the Code for permission to adduce additional evidence and for
examination of certain persons as witness.

 Criminal Miscellaneous Application No. 9825 of 2003 was filed by the State to bring on record a
document and to treat it as corroborative piece of evidence.
By the impugned judgment the appeal, revision and the applications were dismissed and
rejected.

The State and Zahira had requested for a fresh trial primarily on the following grounds:

 When a large number of witnesses have turned hostile it should have raised a reasonable
suspicion that the witnesses were being threatened or coerced.

 The public prosecutor did not take any step to protect the star witness who was to be
examined on 17.5.2003 especially when four out of seven injured witnesses had on 9.5.2003
resiled from the statements made during investigation.

 Zahira Sheikh - the Star witness had specifically stated on affidavit about the threat given to
her and the reason for her not coming out with the truth during her examination before Court
on 17.5.2003.

 The public prosecutor was not acting in a manner befitting the position held by him. He even
did not request the Trial court for holding the trial in camera when a large number of
witnesses were resiling from the statements made during investigation.

 The trial court should have exercised power under section 311 of the Code and recalled and
re-examined witnesses as their evidence was essential to arrive at the truth and a just
decision in the case. The power under Section 165 of the Indian Evidence Act, 1872 (in short
the 'Evidence Act') was not resorted to at all and that also had led to miscarriage of justice.

 The public prosecutor did not examine the injured witnesses. Exhibit 36/68 was produced by
the public prosecutor which is a statement of one Rahish Khan on the commencement of the
prosecution case, though the prosecution was neither relying on it nor it was called upon by
the accused, to be produced before the Court. The said statement was wrongly allowed to be
exhibited and treated as FIR by the public prosecutor.

Section 391 of the Code is intended to sub-serve the ends of justice by arriving at the truth and
there is no question of filling of any lacuna in the case on hand. The provision though a
discretionary one is hedged with the condition about the requirement to record reasons.

All these aspects have been lost sight of and the judgment, therefore, is indefensible. It was
submitted that this is a fit case where the prayer for retrial as a sequel to acceptance of
additional evidence should be directed. Though, the re-trial is not the only result flowing from
acceptance of additional evidence, in view of the peculiar circumstances of the case, the proper
course would be to direct acceptance of additional evidence and in the fitness of things also order
for a re-trial on the basis of the additional evidence.

Supreme Court on the Principle of Fair Trial:

 The operating principles for a fair trial permeate the common law in both civil and criminal
contexts. Application of these principles involve a delicate judicial balancing of competing
interests in a criminal trial, the interests of the accused and the public and to a great extent
that of the victim have to be weighed not losing sight of the public interest involved in the
prosecution of persons who commit offences.

 The concept of fair trial entails familiar triangulation of interests of the accused, the victim and
the society and it is the community that acts through the State and prosecuting agencies.
Courts have always been considered to have an over-riding duty to maintain public confidence
in the administration of justice - often referred to as the duty to vindicate and uphold the
'majesty of the law'.

 If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge

must cease to be a spectator and a mere recording machine by becoming a participant in the
trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching
the correct conclusion, to find out the truth, and administer justice with fairness and
impartiality both to the parties and to the community it serves.

Note:There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair
trial, and it may have to be determined in seemingly infinite variety of actual situations with the
ultimate object in mind viz. whether something that was done or said either before or at the trial
deprived the quality of fairness to a degree where a miscarriage of justice has resulted.

 It will not be correct to say that it is only the accused who must be fairly dealt with. That would
be turning Nelson's eyes to the needs of the society at large and the victims or their family
members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial.

Denial of a fair trial is as much injustice to the accused as is to the victim and the society.
Meaning of Fair Trial:Fair trial obviously would mean:

 a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm;

 a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is
being tried is eliminated.

 If the witnesses get threatened or are forced to give false evidence that also would not result
in a fair trial.

 The failure to hear material witnesses is certainly denial of fair trial.

Supreme Court on its Power to Transfer a Case under Section 406 of the Code:

While dealing with the claims for the transfer of a case under Section 406 of the Code from one
State to another this Court in Mrs. Maneka Sanjay Gandhi and Anr. v. Ms. Rani Jethmalani [1979
(4) SCC 167] emphasised the necessity to ensure fair trial, observing as hereunder:

 Assurance of a fair trial is the first imperative of the dispensation of justice and the central
criterion for the court to consider when a motion for transfer is made is not the
hypersensitivity or relative convenience of a party or easy availability of legal services or like
mini-grievances. Something more substantial, more compelling, more imperilling, from the
point of view of public justice and its attendant environment, is necessitous if the Court is to
exercise its power of transfer. This is the cardinal principle although the circumstances may be
myriad and vary from case to case.

 A more serious ground which disturbs us in more ways than one is the alleged absence of
congenial atmosphere for a fair and impartial trial. It is becoming a frequent phenomenon in
our country that court proceedings are being disturbed by rude hoodlums and unruly crowds,
jostling, jeering or cheering and disrupting the judicial hearing with menaces, noises and worse.
This tendency of toughs and street roughs to violate the serenity of court is obstructive of the
course of justice and must surely be stamped out.

 Likewise, the safety of the person of an accused or complainant is an essential condition for
participation in a trial and where that is put in peril by commotion, tumult or threat on account
 of pathological conditions prevalent in a particular venue, the request for a transfer may not be
dismissed summarily. It causes disquiet and concern to a court ofjustice if a person seeking
justice is unable to appear, present one's case, bring one's witnesses or adduce evidence. Indeed,
it is the duty of the court to assure propitious conditions which conduce to comparative
tranquility at the trial.

 Likewise, if there is general atmosphere of tension or raging masses of people in the entire
region taking sides and polluting the climate, vitiating the necessary neutrality to hold detached
judicial trial, the situation may be said to have deteriorated to such an extent as to warrant
transfer.

In a decision cited by the counsel for the petitioner, Bose, J., observed :

....But we do feel that good grounds for transfer from Jashpurnagar are made out because of the
bitterness of local communal feeling and the tenseness of the atmosphere there. Public confidence
in the fairness of a trial held in such an atmosphere would be seriously undermined, particularly
among reasonable Christians all over India not because the Judge was unfair or biased but because
the machinery of justice is not geared to work in the midst of such conditions. The calm detached
atmosphere of a fair and impartial judicial trial would be wanting, and even if justice were done it
would not be "seen to be done". (G. X. Francis v. Banke Behari Singh, AIR 1958 SC 309).

A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a
judgment on an issue as a fact or relevant facts which may lead to the discovery of the fact issue
and obtain proof of such facts at which the prosecution and the accused have arrived by their
pleadings; the controlling question being the guilt or innocence of the accused.

 Since the object is to mete out justice and to convict the guilty and protect the innocent, the
trial should be a search for the truth and not a bout over technicalities, and must be conducted
under such rules as will protect the innocent, and punish the guilty. The proof of charge which
has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the
evidence, oral and circumstantial and not by an isolated scrutiny.

Failure to accord fair hearing either to the accused or the prosecution violates even minimum
standards of due process of law. It is inherent in the concept of due process of law, that
condemnation should be rendered only after the trial in which the hearing is a real one, not sham or
a mere farce and pretence.
The fair trial for a criminal offence consists not only in technical observance of the frame and forms
of law, but also in recognition and just application of its principles in substance, to find out the truth
and prevent miscarriage of justice.

Supreme Court on Role and Significance of Witnesses in Criminal Trial & Need for Strengthening
Legal Framework for Witness Protection:

"Witnesses" as Bentham said: “are the eyes and ears of justice”.

 If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets
putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be
due to several factors like the witness being not in a position for reasons beyond control to
speak the truth in the Court or due to negligence or ignorance or some corrupt collusion.

 Time has become ripe to act on account of numerous experiences faced by Courts on account of
frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary
considerations at the instance of those in power, their henchmen and hirelings, political clouts
and patronage and innumerable other corrupt practices ingenuously adopted to smoother and
stifle truth and realities coming out to surface rendering truth and justice, to become ultimate
casualties.

 Broader public and societal interests require that the victims of the crime who are not ordinarily
parties to prosecution and the interests of State represented by their prosecuting agencies do
not suffer even in slow process but irreversibly and irretrievably, which if allowed would
undermine and destroy public confidence in the administration of justice, which may ultimately
pave way for anarchy, oppression and injustice resulting in complete breakdown and collapse of
the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution.

There comes the need for protecting the witness.

 Time has come when serious and undiluted thoughts are to be bestowed for protecting
witnesses so that ultimate truth is presented before the Court and justice triumphs and that
the trial is not reduced to mockery. The State has a definite role to play in protecting the
witnesses, to start with at least in sensitive cases involving those in power, who has political
patronage and could wield muscle and money power, to avert trial getting tainted and derailed
and truth becoming a casualty. As a protector of its citizens it has to ensure that during a trial in
 Court the witness could safely depose truth without any fear of being haunted by those against
whom he has deposed.

 Some legislative enactments like the Terrorist and Disruptive Activities (Prevention) Act, 1987
(in short the 'TADA Act') have taken note of the reluctance shown by witnesses to depose
against dangerous criminals-terrorists. In a milder form also the reluctance and the hesitation
of witnesses to depose against people with muscle power, money power or political power has
become the order of the day.

Legislative measures to emphasise prohibition against tampering with witness, victim or informant
have become the imminent and inevitable need of the day. Conducts which illegitimately affect the
presentation of evidence in proceedings before the Courts have to be seriously and sternly dealt with.
There should not be any undue anxiety to only protect the interest of the accused. That would be
unfair as noted above to the needs of the society. On the contrary, the efforts should be to ensure
fair trial where the accused and the prosecution both get a fair deal. Public interest in the proper
administration of justice must be given as much importance if not more, as the interests of the
individual accused. In this courts have a vital role to play.

When and How the Powers provided in Section 311 of CrPC and 165 of the Indian Evidence Act be
Exercised by Courts:

The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to
record whatever is being stated by the witnesses.

 Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on
Presiding Officers of Court to elicit all necessary materials by playing an active role in the
evidence collecting process. They have to monitor the proceedings in aid of justice in a manner
that something, which is not relevant, is not unnecessarily brought into record.

 This becomes more necessary where the Court has reasons to believe that the prosecuting
agency or the prosecutor is not acting in the requisite manner. The prosecutor who does not act
fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and
Courts could not also play into the hands of such prosecuting agency showing indifference or
adopting an attitude of total aloofness.

The power of the Court under Section 165 of the Evidence Act is in a way complementary to its
power under Section 311 of the Code. The section consists of two parts i.e
(i) giving a discretion to the Court to examine the witness at any stage and

(ii) the mandatory portion which compels the Court to examine a witness if his evidence appears to
be essential to the just decision of the Court.

Though the discretion given to the Court is very wide, the very width requires a corresponding
caution. In Mohan Lal v. Union of India [1991 Supp (1) SCC 271] this Court has observed, while
considering the scope and ambit of Section 311, that the very usage of the word such as, 'any Court'
'at any stage', or 'any enquiry or trial or other proceedings' 'any person' and 'any such person'
clearly spells out that the Section has expressed in the widest possible terms and do not limit the
discretion of the Court in any way.

 The second part of the section does not allow any discretion but obligates and binds the Court
to take necessary steps if the fresh evidence to be obtained is essential to the just decision of
the case - 'essential', to an active and alert mind and not to one which is bent to abandon or
abdicate.

Object of Section 311:To enable the Court to arrive at the truth irrespective of the fact that the
prosecution or the defence has failed to produce some evidence which is necessary for a just and
proper disposal of the case.

 The power is exercised and the evidence is examined neither to help the prosecution nor the
defence, if the Court feels that there is necessity to act in terms of Section 311 but only to
subserve the cause of justice and public interest. It is done with an object of getting the
evidence in aid of a just decision and to uphold the truth.

..„.. If the witness who deposed one way earlier comes before the appellate Court with a prayer
that he is prepared to give evidence which is materially different from what he has given earlier at
the trial with the reasons for the earlier lapse, the Court can consider the genuineness of the prayer
in the context as to whether the party concerned had a fair opportunity to speak the truth earlier
and in an appropriate case accept it.

Supreme Court on Nature and Scope of Section 391 and Section 386 of CrPC:
Section 391 of the Code is another salutary provision which clothes the Courts with the power to
effectively decide an appeal. Though Section 386 envisages the normal and ordinary manner and
method of disposal of an appeal, yet it does not and cannot be said to exhaustively enumerate the
modes by which alone the Court can deal with an appeal.

 Section 391 is one such exception to the ordinary rule and if the appellate Court considers
additional evidence to be necessary, the provisions in Section 386 and Section 391 have to be
harmoniously considered to enable the appeal to be considered and disposed of also in the
light of the additional evidence as well.

For this purpose it is open to the appellate Court to call for further evidence before the appeal is
disposed of.

 The appellate Court can direct the taking up of further evidence in support of the prosecution; a
fortiori it is open to the Court to direct that the accused persons may also be given a chance of
adducing further evidence.

 Section 391 is in the nature of an exception to the general rule and the powers under it must
also be exercised with great care, especially on behalf of the prosecution lest the admission of
additional evidence for the prosecution operates in a manner prejudicial to the defence of the
accused.

The legislative intent in enacting Section 391 appears to be:

the empowerment of the appellate court to see that justice is done between the prosecutor and the
persons prosecuted and if the appellate Court finds that certain evidence is necessary in order to
enable it to give a correct and proper findings, it would be justified in taking action under Section
391.

 There is no restriction in the wording of Section 391either as to the nature of the evidence or
that it is to be taken for the prosecution only or that the provisions of the Section are only to be
invoked when formal proof for the prosecution is necessary.

Note:Whether a retrial under Section 386 or taking up of additional evidence under Section 391 is
the proper procedure will depend on the facts and circumstances ofeach case for which no
straight-jacket formula of universal and invariable application can be formulated.
In the ultimate analysis whether it is a case covered by Section 386 or Section 391 of the Code the
underlying object which the Court must keep in view is the very reasons for which the Courts exist
i.e.:

 to find out the truth and dispense justice impartially and ensure also that the very process of
Courts are not employed or utilized in a manner which give room to unfairness or lend
themselves to be used as instruments of oppression and injustice.

Though justice is depicted to be blind-folded, as popularly said, it is only a veil not to see who the
party before it is while pronouncing judgment on the cause brought before it by enforcing law and
administer justice and not to ignore or turn the mind/attention of the Court away from the truth of
the cause or lis before it, in disregard of its duty to prevent miscarriage of justice.

Decision of Supreme Court:

If one even cursorily glances through the records of the case, one gets a feeling that the justice
delivery system was being taken for a ride and literally allowed to be abused, misused and
mutilated by subterfuge.

 The investigationappears to be perfunctory and anything but impartial without any definite
object of finding out the truth and bringing to book those who were responsible for the crime.

 The public prosecutorappears to have acted more as a defence counsel than one whose duty
was to present the truth before the Court.

 The Court in turn appeared to be a silent spectator, mute to the manipulations and preferred to
be indifferent to sacrilege being committed to justice.

 The role of the State Government also leaves much to be desired.

One gets a feeling that there was really no seriousness in the State's approach in assailing the Trial
Court's judgment. This is clearly indicated by the fact that the first memorandum of appeal filed was
an apology for the grounds. A second amendment was done, that too after this Court expressed its
unhappiness over the perfunctory manner in which the appeal was presented and challenge made.
That also was not the end of the matter. There was a subsequent petition for amendment.

 All this sadly reflects on the quality of determination exhibited by the State and the nature of
seriousness shown to pursue the appeal. Criminal trials should not be reduced to be the mock
trials or shadow boxing or fixed trials. Judicial Criminal Administration System must be kept
clean and beyond the reach of whimsical political wills or agendas and properly insulated from
discriminatory standards or yardsticks of the type prohibited by the mandate of the
Constitution.

Those who are responsible for protecting life and properties and ensuring that investigation is
fair and proper seem to have shown no real anxiety. Large number of people had lost their lives.
Whether the accused persons were really assailants or not could have been established by a fair
and impartial investigation.

 The modern day 'Neros' were looking elsewhere when Best Bakery and innocent children and
helpless women were burning, and were probably deliberating how the perpetrators of the
crime can be saved or protected. Law and justice become flies in the hands of these "wanton
boys". When fences start to swallow the crops, no scope will be left for survival of law and order
or truth and justice. Public order, as well as public interest, become martyrs and monuments.

In the background of principles underlying Section 311 and Section 391 of the Code and Section
165 of the Evidence Act it has to be seen as to whether the High Court's approach is correct and
whether it had acted justly, reasonably and fairly in placing premiums on the serious lapses of grave
magnitude by the prosecuting agencies and the Trial Court, as well.

There are several infirmities which are tell- tale even to the naked eye of even an ordinary
common man.

 The High Court has come to a definite conclusion that the investigation carried out by the
police was dishonest and faulty. That was and should have been per se sufficient justification
to direct a re-trial of the case.

 There was no reason for the High Court to come to the further conclusion of its own about false
implication without concrete basis and that too merely on conjectures.
 On the other hand, the possibility of the investigating agency trying to shield the accused
persons keeping in view the methodology adopted and outturn of events can equally be not
ruled out.

When the investigation is dishonest and faulty, it cannot be only with the purpose of false
implication. It may also be noted at this stage that the High Court has even gone to the extent of
holding that the FIR was manipulated. There was no basis for such a presumptive remark or
arbitrary conclusion.

The High Court has come to a conclusion that Zahira seems to have unfortunately for some
reasons after the pronouncement of the judgment fallen into the hands of some who prefer to
remain behind the curtain to come out with the affidavit alleging threat during trial.

 It has rejected the application for adducing additional evidence on the basis of the affidavit, but
has found fault with the affidavit and hastened to conclude unjustifiably that they are far from
truth by condemning those who were obviously victims.

 The question whether they were worthy of credence, and whether the subsequent stand of the
witnesses was correct needed to be assessed, and adjudged judiciously on objective standards
which are the hallmark of a judicial pronouncement. Such observations if at all could have been
only made after accepting the prayer for additional evidence.

 The disclosed purpose in the State Government's prayer with reference to the affidavits was to
bring to High Court's notice the situation which prevailed during trial and the reasons as to why
the witnesses gave the version as noted by the Trial Court. Whether the witness had told the
truth before the Trial Court or as stated in the affidavit, were matters for assessment of
evidence when admitted and tenderedand when the affidavit itself was not tendered as
evidence, the question of analysing it to find fault was not the proper course to be adopted.
The affidavits were filed to emphasise the need for permitting additional evidence to be taken
and for being considered as the evidence itself.

 The High Court has also found that some persons were not present and, therefore, question of
their statement being recorded by the police did not arise. For coming to this conclusion, the
High Court noted that the statements under Section 161 of the Code were recorded in Gujarati
language though the witnesses did not know Gujarati. The reasoning is erroneous for more
reasons than one. There was no material before the High Court for coming to a finding that the
 persons did not know Gujarati since there may be a person who could converse fluently in a
language though not a literate to read and write. Additionally, it is not a requirement in law
that the statement under Section 161 of the Code has to be recorded in the language known to
the person giving the statement. As a matter of fact, the person giving the statement is not
required to sign the statement as is mandated in Section 162 of the Code.

 Sub-section (1) of Section 161 of the Code provides that the competent police officer may
examine orally any person supposed to be acquainted with the facts and circumstances of the
case. Requirement is the examination by the concerned police officer. Sub-section (3) is
relevant, and it requires the police officer to reduce into writing any statement made to him in
the course of an examination under this Section; and if he does so, he shall make a separate
and true record of the statement of each such person whose statement he records. Statement
made by a witness to the police officer during investigation may be reduced to writing. It is not
obligatory on the part of the police officer to record any statement made to him. He may do so
if he feels it necessary. What is enjoined by the Section is a truthful disclosure by the person
who is examined. In the above circumstance the conclusion of the High Court holding that the
persons were not present is untenable.

 The reasons indicated by the High Court to justify non-examination of the eye-witnesses is also
not sustainable. In respect of one it has been said that whereabouts of the witness may not be
known. There is nothing on record to show that the efforts were made by the prosecution to
produce the witness for tendering evidence and yet the net result was 'untraceable'. In other
words, the evidence which should have been brought before the Court was not done with any
meticulous care or seriousness.

 It is true that the prosecution is not bound to examine each and every person who has been
named as witness. A person named as a witness may be given up when there is material to
show that he has been gained over or that there is no likelihood of the witness speaking the
truth in the Court. There was no such material brought to the notice of the Courts below to
justify non-examination. The materials on record are totally silent on this aspect.

 Another aspect which has been lightly brushed aside by the High Court is that one person who
was to be examined on a particular date was examined earlier than the date fixed. This unusual
conduct by the prosecutor should have been seriously taken note of by the Trial Court and also
by the High Court. It is to be noted that the High Court has found fault withDCP Shri Piyush
 Patel and has gone to the extent of saying that he has miserably failed to discharge his duties;
while finding at the same time that police inspector Baria had acted fairly.

 Time and again, this Court stressed upon the need of the investigating officer being present
during trial unless compelling reasons exist for a departure. In the instant case, this does not
appear to have been done, and there is no explanation whatsoever why it was not done. Even
Public Prosecutor does not appear to have taken note of this desirability.

In Shailendra Kumar v. State of Bihar [(2002)1 SCC 655] it was observed as under:

 The presence of investigating officer at the time of trial is must. It is his duty to keep the
witnesses present. If there is failure on part of any witness to remain present, it is the duty of
the court to take appropriate action including issuance of bailable/non-bailable warrants as the
case may be. It should be well understood that prosecution can not be frustrated by such
methods and victims of the crime cannot be left in lurch.

A somewhat unusual mode in contrast to the lapse committed by non-examining victims and injured
witnesses adopted by the investigating agency and the prosecutor was examination of six relatives
of accused persons. They have expectedly given a clean chit to the accused and labeled them as
saviors. This unusual procedure was highlighted before the High Court. But the same was not
considered relevant as there is no legal bar.

 When we asked Mr. Rohtagi, learned counsel for the State of Gujarat as to whether this does
not reflect badly on the conduct of investigating agency and the prosecutor, he submitted that
this was done to show the manner in which the incident had happened. This is a strange answer.
Witnesses are examined by prosecution to show primarily who is the accused. In this case it was
nobody's stand that the incident did not take place. That the conduct of investigating agency
and the prosecutor was not bona fide, is apparent and patent.

So far as non-examination of some injured relatives are concerned, the High Court has held that
in the absence of any medical report, it appears that they were not present and, therefore, held
that the prosecutor might have decided not to examine Yasminbanu because there was no injury.
 This is nothing but a wishful conclusion based on presumption. It is true that merely because the
affidavit has been filed stating that the witnesses were threatened, as a matter of routine,
additional evidence should not be permitted. But when the circumstances as in this case clearly
indicate that there is some truth or prima facie substance in the grievancemade, having regard
to background of events as happened the appropriate course for the Courts would be to admit
additional evidence for final adjudication so that the acceptability or otherwise of evidence
tendered by way of additional evidence can be tested properly and legally tested in the context
of probative value of the two versions.

 There cannot be straightjacket formula or rule of universal application when alone it can be
done and when, not. As the provisions under Section 391 of the Code are by way of an
exception, the Court has to carefully consider the need for and desirability to accept additional
evidence. We do not think it necessary to highlight all the infirmities in the judgment of the
High Court or the approach of the Trial Court lest nothing credible or worth mentioning would
remain in the process. This appears to be a case where the truth has become a casualty in the
trial.

We are satisfied that it is fit and proper case, in the background of the nature of additional evidence
sought to be adduced and the perfunctory manner of trial conducted on the basis of tainted
investigation a re-trial is a must and essentially called for in order to save and preserve the justice
delivery system unsullied and unscathed by vested interests. We should not be understood to have
held that whenever additional evidence is accepted, re-trial is a necessary corollary. The case on
hand is without parallel and comparison to any of the cases where even such grievances were
sought to be made. It stands on its own as an exemplary one, special of its kind, necessary to
prevent its recurrence. It is normally for the Appellate Court to decide whether the adjudication itself
by taking into account the additional evidence would be proper or it would be appropriate to direct
a fresh trial, though, on the facts of this case, the direction for re-trial becomes inevitable.

Prayer was made by learned counsel for the appellant that the trial should be conducted outside
the State so that the unhealthy atmosphere which led to failure of miscarriage of justice is not
repeated.

 This prayer has to be considered in the background and keeping in view the spirit of Section 406
of the Code. It is one of the salutory principles of the administration of justice that justice should
not only be done but it should be seen to be done. However, a mere allegation that there is
apprehension that justice will not be done in a given case or that general allegations of a
 surcharged atmosphere against a particular community alone does not suffice. The Court has to
see whether the apprehension is reasonable or not.

 The state of mind of the person who entertains apprehension, no doubt is a relevant factor but
not the only determinative or concluding factor. But the Court must be fully satisfied about the
existence of such conditions which would render inevitably impossible the holding of a fair and
impartial trial, uninfluenced by extraneous considerations that may ultimately undermine the
confidence of reasonable and right thinking citizen, in the justice delivery system. This position
has been highlighted in Gurcharan Das Chadha v. State of Rajasthan [1966 (2) SCR 678] and K.
Ambazhagan v. The Superintendent of Police [(2004)3 SCC 767].

Directions given by the Supreme Court:

Keeping in view the peculiar circumstances of the case, and the ample evidence on record,
glaringly demonstrating subversion of justice delivery system with no congeal and conducive
atmosphere still prevailing, we direct

 that the re-trial shall be done by a Court under the jurisdiction of Bombay High Court. The
Chief Justice of the said High Court is requested to fix up a Court of Competent jurisdiction.

 that the State Government to appoint another Public Prosecutor and it shall be open to the
affected persons to suggest any name which may also be taken into account in the decision to
so appoint. Though the witnesses or the victims do not have any choice in the normal course to
have a say in the matter of appointment of a Public Prosecutor, in view of the unusual factors
noticed in this case, to accord such liberties to the complainants party, would be appropriate.

 The fees and all other expenses of the public prosecutor who shall be entitled to assistance of
one lawyer of his choice shall initially be paid by the State of Maharashtra, who will thereafter
be entitled to get the same reimbursed from the State of Gujarat.

 The State of Gujarat shall ensure that all the documents and records are forthwith transferred
to the Court nominated by the Chief Justice of the Bombay High Court.
 The State of Gujarat shall also ensure that the witnesses are produced before the concerned
Court whenever they are required to attend that Court. Necessary protection shall be afforded
to them so that they can depose freely without any apprehension of threat or coercion from any
person.

 In case, any witness asks for protection, the State of Maharashtra shall also provide such
protection as deemed necessary, in addition to the protection to be provided for by the State of
Gujarat.

 All expenses necessary for the trial shall be initially borne by the State of Maharashtra, to be
reimbursed by the State of Gujarat.

 Since we have directed re-trial it would be desirable to the investigating agency or those
supervising the investigation, to act in terms of Section 173(8) of the Code, as the circumstances
seem to or may so warrant. The Director General of Police, Gujarat is directed to monitor
re-investigation, if any, to be taken up with the urgency and utmost sincerity, as the
circumstances warrant.

 Sub-section (8) of Section 173of the Code permits further investigation, and even de hors any
direction from the Court as such, it is open to the police to conduct proper investigation, even
after the Court took cognizance of any offence on the strength of a police report earlier
submitted.

Before we part with the case it would be appropriate to note some disturbing factors:

 The High Court after hearing the appeal directed its dismissal on 26.12.2003 indicating in the
order that the reasons were to be subsequently given, because the Court was closing for winter
holidays. This course was adopted "due to paucity of time". We see no perceivable reason for
the hurry. The accused were not in custody. Even if they were in custody, the course adopted
was not permissible. This Court has in several cases deprecated the practice adopted by the
High Court in the present case.
 It may be thought that such orders are passed by this Court and, therefore, there is no reason
why the High Courts should not do the same. We would like to point out that the orders passed
by this Court are final and no further appeal lies against them. The Supreme Court is the final
Court in the hierarchy of our Courts. Orders passed by the High Court are subject to the
appellate jurisdiction of this Court under Article 136 of the Constitution and other provisions of
the concerned statutes.

 We thought it necessary to make these observation so that a practice which is not a very
desirable one and which achieves no useful purpose may not grow out of and beyond its
present infancy. What is still more baffling is that written arguments of the State were filed on
29.12.2003 and by the accused persons on 1.1.2004. If the written arguments were to be on
record, it is not known as to why the High Court dismissed the appeal. If it had already arrived
at a particular view there was no question of filing written arguments.

The High Court appears to have miserably failed to maintain the required judicial balance and
sobriety in making unwarranted references to personalities and their legitimate moves before
competent courts - the highest court of the nation, despite knowing fully well that it could not
deal with such aspects or matters.

 But, such besmirching tacts, meant as innuendos or serve as surrogacy ought not to be made or
allowed to be made, to become part of solemn judgments, of at any rate by High Courts, which
are created as Court of record as well. Decency, decorum and judicial discipline should never
be made casualties by adopting such intemperate attitudes of judicial obstinacy.

 The High Court also made some observations and remarks about persons/constitutional bodies
like NHRC who were not before it. The move adopted and manner of references made, in para
no. 3 of the judgment except the last limb (sub-para) is not in good taste or decorous. It may be
noted that certain reference is made therein or grievances purportedly made before the High
Court about role of NHRC.

We order the expunging and deletion of the contents of para 3 of the judgment except the last
limb of the sub-para therein and it shall be always read to have not formed part of the judgment.

 A plea which was emphasised by Mr. Tulsi relates to the desirability of restraint in
publication/exhibition of details relating to sensitive cases, more particularly description of
alleged accused persons in the print/electronic/broadcast medias. According to him, "media
trial" causes indelible prejudice to the accused persons. This is sensitive and complex issue,
which we do not think it proper to deal in detail in these appeals.
 If the accused persons were not on bail at the time of conclusion of the trial, they shall go back
to custody, if on the other hand they were on bail that order shall continue unless modified by
the concerned Court.

 Since we are directing a re-trial, it would be appropriate if same is taken up on day-to-day basis
keeping in view the mandate of Section 309 of the Code and completed by the end of
December 2004.

The appeals are allowed on the terms and to the extent indicated above.
 Mohd. Hussain v. State (Govt. of NCT of Delhi)

(2012) 9 SCC 408

R M Lodha, J:

We are called upon to decide in this appeal the issue on reference by a two-Judge Bench [Mohd.
Hussain v. State (Govt. of NCT of Delhi), (2012) 2 SCC 584],

whether the matter requires to be remanded for a de novo trial in accordance with law or not?

 The two-Judge Bench [Mohd. Hussain v. State (Govt. of NCT of Delhi), (2012) 2 SCC 584] that
heard the criminal appeal, was unanimous that: the appellant was denied the assistance of a
counsel in substantial and meaningful manner in the course of trial although necessity of
counsel was vital and imperative and that resulted in denial of due process of law.

 In their separate judgments, the learned Judges agreed that the appellant has been put to
prejudice rendering the impugned judgments unsustainable in law. They, however, differed on
the course to be adopted after it was held that the conviction and sentence awarded to the
appellant by the trial court and confirmed by the High Court were vitiated.

 As noted above, H.L. Dattu, J. ordered the matter to be remanded to the trial court for fresh
disposal in accordance with law after providing to the appellant the assistance of the counsel
before the commencement of the trial till its conclusion if the accused was unable to engage a
counsel of his own choice.

 On the other hand, C.K. Prasad, J. for the reasons indicated by him held thatthe incident
occurred in 1997; the appellant was awarded the sentence of death more than seven years ago
and at such distance of time it shall be travesty of justice to direct for the appellant's de novo
trial.

“Speedy trial” and “fair trial” to a person accused of a crime are integral part of Article
21.There is, however, qualitative difference between the right to speedy trial and the accused's right
of fair trial.
 Unlike the accused's right of fair trial, deprivation of the right to speedy trial does not per se
prejudice the accused in defending himself. The right to speedy trial is in its very nature relative.
It depends upon diverse circumstances. Each case of delay in conclusion of a criminal trial has
to be seen in the facts and circumstances of such case. Mere lapse of several years since the
commencement of prosecution by itself may not justify the discontinuance of prosecution or
dismissal of indictment.

 The factors concerning the accused's right to speedy trial have to be weighed vis-à-vis the
impact of the crime on society and the confidence of the people in judicial system. Speedy trial
secures rights to an accused but it does not preclude the rights of public justice. The nature and
gravity of crime, persons involved, social impact and societal needs must be weighed along
with the right of the accused to speedy trial and if the balance tilts in favour of the former the
long delay in conclusion of criminal trial should not operate against the continuation of
prosecution and if the right of the accused in the facts and circumstances of the case and
exigencies of situation tilts the balance in his favour, the prosecution may be brought to an
end.

These principles must apply as well when the appeal court is confronted with the question whether
or not retrial of an accused should be ordered.

 The appellate court hearing a criminal appeal from a judgment of conviction has power to order
the retrial of the accused under Section 386 of the Code. That is clear from the bare language of
Section 386(b). Though such power exists, it should not be exercised in a routine manner.

 A de novo trial or retrial of the accused should be ordered by the appellate court inexceptional
and rare cases and only when in the opinion of the appellate court such course becomes
indispensable to avert failure of justice. Surely this power cannot be used to allow the
prosecution to improve upon its case or fill up the lacuna.

A retrial is not the second trial; it is continuation of the same trial and same prosecution. The
guiding factor for retrial must always be demand of justice.

 Obviously, the exercise of power of retrial under Section 386(b) of the Code, will depend on the
facts and circumstances of each case for which no straitjacket formula can be formulated but
the appeal court must closely keep in view that while protecting the right of an accused to fair
trial and due process, the people who seek protection of law do not lose hope in legal system
and the interests of the society are not altogether overlooked.

We have to consider now, whether the matter requires to be remanded for a de novo trial in the
facts and the circumstances of the present case.
 The incident is of 1997. It occurred in a public transport bus when that bus was carrying
passengers and stopped at a bus-stand. The moment the bus stopped an explosion took place
inside the bus that ultimately resulted in death of four persons and injury to twenty-four
persons. The nature of the incident and the circumstances in which it occurred speak volume
about the very grave nature of offence.

 As a matter of fact, the appellant has been charged for the offences under Sections 302/307
IPC and Section 3 and, in the alternative, Section 4(b) of the Explosive Substances Act. It is
true that the appellant has been in jail since 9-3-1998 and it is more than 14 years since he was
arrested and he has passed through mental agony of death sentence and the retrial at this
distance of time shall prolong the culmination of the criminal case but the question is whether
these factors are sufficient for the appellant's acquittal and dismissal of indictment. We think
not.

It cannot be ignored that the offences with which the appellant has been charged are of very
serious nature and if the prosecution succeeds and the appellant is convicted under Section 302
IPC on retrial, the sentence could be death or life imprisonment.Section 302 IPC authorises the
court to punish the offender of murder with death or life imprisonment.

 Gravity of the offences and the criminality with which the appellant is charged are important
factors that need to be kept in mind, though it is a fact that in the first instance the accused
has been denied due process.

 While having due consideration to the appellant's right, the nature of the offence and its
gravity, the impact of crime on the society, more particularly the crime that has shaken the
public and resulted in death of four persons in a public transport bus cannot be ignored and
overlooked. It is desirable that punishment should follow offence as closely as possible.

 In an extremely serious criminal case of the exceptional nature like the present one, it would
occasion in failure of justice if the prosecution is not taken to the logical conclusion. Justice is
supreme.

The retrial of the appellant, in our opinion, in the facts and circumstances, is indispensable. It is
imperative that justice is secured after providing the appellant with the legal practitioner if he
does not engage a lawyer of his choice

In what we have discussed above we answer the reference by holding that the matter requires to
be remanded for a de novo trial.
The Additional Sessions Judge shall proceed with the trial of the appellant in Sessions Case No. 122
of 1998 from the stage of prosecution evidence and shall further ensure that the trial is concluded
as expeditiously as may be possible and in no case later than three months from the date of
communication of this order.
 Mohd. Ajmal Amir Kasab v. State of Maharashtra

(2012) 9 SCC 1

Aftab Alam, J.:

401. Proceeding from the premise that fair trial is an inalienable right of every person, Mr
Ramachandran submitted that in case of the appellant the constitutional guarantee remained
unsatisfied because of denial to him of two valuable constitutional rights/protections:

 first, the right to counsel at the earliest, as provided under Article 22(1) of the Constitution;
and

 secondly, the right to protection against self-incrimination as stipulated by Article 20(3) of the
Constitution.

459. But on the issue of the right of the suspect or the accused to be represented by a lawyer, we
find Mr Subramanium's submissions equally unacceptable. Mr Subramanium contends that:

Article 22(1) merely allows an arrested person to consult a legal practitioner of his choice and the
right to be defended by a legal practitioner crystallises only at the stage of commencement of the
trial in terms of Section 304 CrPC.

We feel that such a view is quite incorrect and insupportable for two reasons.

 First, such a view is based on an unreasonably restricted construction of the constitutional and
statutory provisions; and

 Second, it overlooks the socio-economic realities of the country.

460. Article 22(1) was part of the Constitution as it came into force on 26-1-1950. The Criminal
Procedure Code, 1973 (2 of 1974), that substituted the earlier Code of 1898, came into force on
1-4-1974. The Criminal Procedure Code, as correctly explained by Mr Subramanium in his
submissions, incorporated the constitutional provisions regarding the protection of the accused
against self-accusation. The Criminal Procedure Code also had a provision in Section 304 regarding
access to a lawyer, to which Mr Subramanium alluded in support of his submission that the right to
be defended by a legal practitioner would crystallise only on the commencement of the trial.
But the Constitution and the body of laws are not frozen in time. They comprise an organic
structure developing and growing like a living organism.

461. In the more than four decades that have passed since, in order to serve the evolving needs of
the Indian people, has made massive progress through constitutional amendments, legislative
action and, not least, through the pronouncements by this Court. Article 39-A came to be inserted
in the Constitution by the Constitution (Forty-second Amendment) Act, 1976 with effect from
3-1-1977 as part of the “Directive Principles of the State Policy”. The Article reads as under:

“39-A. Equal justice and free legal aid.—The State shall secure that the operation of the legal
system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal
aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for
securing justice are not denied to any citizen by reason of economic or other disabilities.”

462. In furtherance to the ideal of Article 39-A, Parliament enacted the Legal Services Authorities
Act, 1987, that came into force from 9-11-1995. The Statement of Objects and Reasons of the Act,
insofar as relevant for the present, reads as under:

“Article 39-A of the Constitution provides that the State shall secure that the operation of the legal
system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal
aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing
justice are not denied to any citizen by reason of economic or other disabilities.”(emphasis added)

463. Sections 12 and 13 in Chapter IV of the Act deal with entitlement to legal services, and
provide for legal services under the Act to a very large class of people, including members of the
Scheduled Castes and the Scheduled Tribes, women and children and persons in receipt of annual
income less than rupees nine thousand (Rs 9000) if the case is before a court other than the
Supreme Court, and less than rupees twelve thousand (Rs 12,000) if the case is before the Supreme
Court. As regards income, an affidavit made by the person concerned would be regarded as
sufficient to make him eligible for entitlement to legal services under the Act. In the past 17years
since the Act came into force, the programme of legal aid had assumed the proportions of a
national movement.
All this development clearly indicates the direction in which the law relating to access to
lawyers/legal aid has developed and continues to develop. It is now rather late in the day to
contend that Article 22(1) is merely an enabling provision and that the right to be defended by a
legal practitioner comes into force only on the commencement of trial as provided under Section
304 CrPC.

464. And this leads us to the second ground for not accepting Mr Subramanium's submission on
this issue. Mr Subramanium is quite right and we are one with him in holding that the provisions of
CrPC and the Evidence Act fully incorporate the constitutional guarantees, and that the statutory
framework for the criminal process in India affords the fullest protection to personal liberty and
dignity of an individual. We find no flaws in the provisions in the statute books, but the devil lurks in
the faithful application and enforcement of those provisions.

 It is common knowledge, of which we take judicial notice, that there is a great hiatus between
what the law stipulates and the realities on the ground in the enforcement of the law. The
abuses of the provisions of CrPC are perhaps the most subversive of the rightto life and personal
liberty, the most precious right under the Constitution, and the human rights of an individual.
Access to a lawyer is, therefore, imperative to ensure compliance with statutory provisions,
which are of high standards in themselves and which, if duly complied with, will leave no room
for any violation of constitutional provisions or human rights abuses.

465. In any case, we find that the issue stands settled long ago and is no longer open to a debate.
More than three decades ago, in Hussainara Khatoon (4) v. State of Bihar [(1980) 1 SCC 98] , this
Court referring to Article 39-A, then newly added to the Constitution, said that the article
emphasised that free legal aid was an unalienable element of a “reasonable, fair and just”
procedure, for without it a person suffering from economic or other disabilities would be deprived
from securing justice. In para 7 of the judgment the Court observed and directed as under: (SCC p.
105)

“7. „ The right to free legal services is, therefore, clearly an essential ingredient of ‘reasonable,
fair and just’, procedure for a person accused of an offence and it must be held implicit in the
guarantee of Article 21. This is a constitutional right of every accused person who is unable to
engage a lawyer and secure legal services on account of reasons such as poverty, indigence or
incommunicado situation and the State is under a mandate to provide a lawyer to an accused
person if the circumstances of the case and the needs of justice so require, provided of course the
accused person does not object to the provision of such lawyer. We would, therefore, direct that on
the next remand dates, when the undertrial prisoners, charged with bailable offences, are produced
before the Magistrates, the State Government should provide them a lawyer at its own cost for the
purpose of making an application for bail, provided that no objection is raised to such lawyer on
behalf of such undertrial prisoners and if any application for bail is made, the Magistrates should
dispose of the same in accordance with the broad outlines set out by us in our judgment dated
12-2-1979 [Hussainara Khatoon (1) v.State of Bihar, (1980) 1 SCC]. The State Government will
report to the High Court of Patna its compliance with this direction within a period of six weeks from
today.”

466. Two years later, in Khatri (2) [(1981) 1 SCC 627] relating to the infamous case of blinding of
prisoners in Bihar, this Court reiterated that the right to free legal aid is an essential ingredient of
due process, which is implicit in the guarantee of Article 21 of the Constitution. In para 5 of the
judgment, the Court said: (SCC p. 631)

“This Court has pointed out in Hussainara Khatoon (4) case [(1980) 1 SCC 98] which was decided
as far back as 9-3-1979 that the right to free legal services is clearly an essential ingredient of
reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in
the guarantee of Article 21 and the State is under a constitutional mandate to provide a lawyer to
an accused person if the circumstances of the case and the needs of justice so require, provided of
course the accused person does not object to the provision of such lawyer. ”(emphasis supplied)

467. Then, brushing aside the plea of financial constraint in providing legal aid to an indigent, the
Court went on to say: [Khatri (2) case [(1981) 1 SCC 627]

“5. „ Moreover, this constitutional obligation to provide free legal services to an indigent accused
does not arise only when the trial commences but also attaches when the accused is for the first
time produced before the Magistrate. It is elementary that the jeopardy to his personal liberty arises
as soon as a person is arrested and produced before a Magistrate, for it is at that stage that he gets
the first opportunity to apply for bail and obtain his release as also to resist remand to police or jail
custody. That is the stage at which an accused person needs competent legal advice and
representation and no procedure can be said to be reasonable, fair and just which denies legal
advice and representation to him at this stage. We must, therefore, hold that the State is under a
constitutional obligation to provide free legal services to an indigent accused not only at the stage
of trial but also at the stage when he is first produced before the Magistrate as also when he is
remanded from time to time.”(emphasis supplied)
468. In para 6 of the judgment, this Court further said: [Khatri (2) case [(1981) 1 SCC 627]

“6. But even this right to free legal services would be illusory for an indigent accused unless the
Magistrate or the Sessions Judge before whom he is produced informs him of such right. „ The
Magistrate or the Sessions Judge before whom the accused appears must be held to be under an
obligation to inform the accused that if he is unable to engage the services of a lawyer on account of
poverty or indigence, he is entitled to obtain free legal services at the cost of the State. „ We would,
therefore, direct the Magistrates and Sessions Judges in the country to inform every accused who
appears before them and who is not represented by a lawyer on account of his poverty or indigence
that he is entitled to free legal services at the cost of the State. Unless he is not willing to take
advantage of the free legal services provided by the State, he must be provided legal representation
at the cost of the State.”(emphasis added)

469. The resounding words of the Court in Khatri (2) [(1981) 1 SCC 627] are equally, if not more,
relevant today than when they were first pronounced. In Khatri (2) [(1981) 1 SCC 627] the Court
also alluded to the reasons for the urgent need of the accused to access a lawyer, these being the
indigence and illiteracy of the vast majority of Indians accused of crimes.

470. As noted in Khatri (2) [(1981) 1 SCC 627] as far back as in 1981, a person arrested:

 needs a lawyer at the stage of his first production before the Magistrate, to resist remand to
police or jail custody and to apply for bail.

 needs a lawyer when the charge-sheet is submitted and the Magistrate applies his mind to the
charge-sheet with a view to determine the future course of proceedings.

 need a lawyer at the stage of framing of charges against him and he would, of course, need a
lawyer to defend him in trial.

To deal with one terrorist, we cannot take away the right given to the indigent and
underprivileged people of this country by this Court thirty-one (31) years ago.
471. 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 acognizable 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 Magistrate concerned liable to departmental
proceedings.

472. 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 CrPC;

 to represent him when the court examines the charge-sheet 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
[(1966) 16 L Ed 2d 694 : 384 US 436] 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.
473. 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?

474. Every accused unrepresented by a lawyer has to be provided a lawyer at the commencement
of the trial, engaged to represent him during the entire course of the trial. Even if the accused does
not ask for a lawyer or he remains silent, it is the constitutional duty of the court to provide him
with a lawyer before commencing the trial.

 Unless the accused voluntarily makes an informed decision and tells the court, in clear and
unambiguous words, that he does not want the assistance of any lawyer and would rather
defend himself personally, the obligation to provide him with a lawyer at the commencement
of the trial is absolute, and failure to do so would vitiate the trial and the resultant conviction
and sentence, if any, given to the accused (see Suk Das v. UT of Arunachal Pradesh [(1986) 2
SCC 401] ).

475. But the failure to provide a lawyer to the accused at the pre-trial stage may not have the same
consequence of vitiating the trial. It may have other consequences like making the delinquent
Magistrate liable to disciplinary proceedings, or giving the accused a right to claim compensation
against the State for failing to provide him legal aid. But it would not vitiate the trial unless it is
shown that failure to provide legal assistance at the pre-trial stage had resulted in some material
prejudice to the accused in the course of the trial. That would have to be judged on the facts of each
case.

485. The appellant's refusal to accept the services of an Indian lawyer and his demand for a lawyer
from his country cannot be anything but his own independent decision.

 The demandfor a Pakistani lawyer in those circumstances, and especially when Pakistan was
denying that the appellant was even a Pakistani citizen, might have been impractical, even
foolish, but the man certainly did not need any advice from an Indian court or authority as to his
rights under the Indian Constitution.

 He was acting quite independently and, in his mind, he was a “patriotic” Pakistani at war
with this country.
486. On 23-3-2009, the appellant finally 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.

 In the aforesaid facts we are firmly of the view that there is no question of any violation of
any of the rights of the appellant under the Indian Constitution. He was offered the services
of a lawyer at the time of his arrest and at all relevant stages in the proceedings.

 We are also clear in our view that the absence of a lawyer at the pre-trial stage was not only
as per the wishes of the appellant himself, but that this absence also did not cause him any
prejudice in the trial.
 Hardeep Singh v. State of Punjab

(2014)3 SCC 92

Dr. B.S. CHAUHAN, J. 1. This reference before us arises out of a variety of views having been
expressed by this Court and several High Courts of the country on:

the scope and extent of the powers of the courts under the criminal justice system to arraign any
person as an accused during the course of inquiry or trial as contemplated under Section 319 of
the Code of Criminal Procedure, 1973 (hereinafter referred to as the `Cr.P.C).

The doubts as categorised in paragraphs 75 and 78 of the reference order led to the framing of two
questions by the said Bench which are reproduced hereunder:

(1) When the power under sub-section (1) of Section 319 of the Code of addition of accused can be
exercised by a Court? Whether application under Section 319 is not maintainable unless the
cross-examination of the witness is complete?

(2) What is the test and what are the guidelines of exercising power under sub-section (1) of Section
319 of the Code? Whether such power can be exercised only if the Court is satisfied that the accused
summoned in all likelihood would be convicted?

 The reference was desired to be resolved by a three-Judge Bench whereafter the same came
up for consideration and vide order dated 8.12.2011, the Court opined that in view of the
reference made in the case of Dharam Pal v. State of Haryana[ (2004) 13 SCC 9,] the issues
involved being identical in nature, the same should be resolved by a Constitution Bench
consisting of at least five Judges. The Bench felt that since a three-Judge Bench has already
referred the matter of Dharam Pal (Supra) to a Constitution Bench, then in that event it would
be appropriate that such overlapping issues should also be resolved by a Bench of similar
strength.

 Reference made in the case of Dharam Pal (Supra) came to be answered in relation to the
power of a Court of Sessions to invoke Section 319 Cr.P.C. at the stage of committal of the case
to a Court of Sessions. The said reference was answered by the Constitution Bench in the case
of Dharam Pal v State of Haryana [AIR 2013 SC 3018 (hereinafter called Dharam Pal (CB)],
 wherein it was held that a Court of Sessions can with the aid of Section 193 Cr.P.C. proceed to
array any other person and summon him for being tried even if the provisions of Section 319
Cr.P.C. could not be pressed in service at the stage of committal.

On the consideration of the submissions raised and in view of what has been noted above, the
following questions are to be answered by this Constitutional Bench:

(i) What is the stage at which power under Section 319 Cr.P.C. can be exercised?

(ii) Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested
by cross-examination or the court can exercise the power under the said provision even on the
basis of the statement made in the examination-in-chief of the witness concerned?

(iii) Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive
sense and includes the evidence collected during investigation or the word "evidence" is limited
to the evidence recorded during trial?

(iv) What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C.
to arraign an accused? Whether the power under Section 319(1) Cr.P.C. can be exercised only if
the court is satisfied that the accused summoned will in all likelihood convicted?

(v) Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in
the FIR but not charged or who have been discharged?

In this reference what we are concerned with:

 firstly the stage at which such powers can be invoked and,

 secondly, the material on the basis whereof the invoking of such powers can be justified.

 thirdly, the manner in which such power has to be exercised, also has to be considered.

Section 319 Cr.P.C.-Power to proceed against other persons appearing to be guilty of offence.-
(1) Where, in the course ofany inquiry into, or trial of, an offence, it appears from the evidence
thatany person not being the accused has committed any offence for which such person could be
tried together with the accused,

the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the
circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained
by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have
committed.

(4) Where the Court proceeds against any person under sub- section (1), then-

(a) the proceedings in respect of such person shall be commenced afresh, and the
witnesses re-heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an
accused person when the Court took cognizance of the offence upon which the inquiry or trial
was commenced.

 Section 319 Cr.P.C. springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is
condemned when guilty is acquitted) and this doctrine must be used as a beacon light while
explaining the ambit and the spirit underlying the enactment of Section 319 Cr.P.C.

The question remains under what circumstances and at what stage should the court exercise its
power as contemplated in Section 319 Cr.P.C.?

 It is at this stage the comparison of the words used under Section 319 Cr.P.C. has to be
understood distinctively from the word used under Section 2(g) defining an inquiry other than
the trial by a magistrate or a court. Here the legislature has used two words, namely the
magistrate or court, whereas under Section 319 Cr.P.C., as indicated above, only the word
courthas been recited. This has been done by the legislature to emphasise that the power
 under Section 319 Cr.P.C. is exercisable only by the court and not by any officer not acting as a
court. Thus, the magistrate not functioning or exercising powers as a court can make an inquiry
in particular proceeding other than a trial but the material so collected would not be by a court
during the course of an inquiry or a trial.

The conclusion therefore, in short, is that in order to invoke the power under Section 319 Cr.P.C., it is
only a Court of Sessions or a Court of Magistrate performing the duties as a court under the Cr.P.C.
that can utilise the material before it for the purpose of the said Section.

 Section 319 Cr.P.C. allows the court to proceed against any person who is not an accused in a
case before it. Thus, the person against whom summons are issued in exercise of such powers,
has to necessarily not be an accused already facing trial. He can either be a person named in
Column 2 of the charge sheet (Personsagainst whom the police finds no case or they are not
found to be culprit by the police)filed under Section 173 Cr.P.C. or a person whose name has
been disclosed in any material before the court that is to be considered for the purpose of
trying the offence, but not investigated. He has to be a person whose complicity may be
indicated and connected with the commission of the offence.

 At the very outset, we may explain that the issue that was being considered by this Court in
Dharam Pal (CB), was the exercise of such power at the stage of committal of a case and the
court held that even if Section 319 Cr.P.C. could not be invoked at that stage, Section 193
Cr.P.C. could be invoked for the said purpose. We are not delving into the said issue which had
been answered by the five-Judge Bench of this Court. However, we may clarify that the
opening words of Section 193 Cr.P.C. categorically recite that the power of the Court of
Sessions to take cognizance would commence only after committal of the case by a magistrate.
The said provision opens with a non-obstante clause except as otherwise expressly provided by
this code or by any other law for the time being in force. The Section therefore is clarified by
the said opening words which clearly means that if there is any other provision under Cr.P.C.,
expressly making a provision for exercise of powers by the court to take cognizance, then the
same would apply and the provisions of Section 193 Cr.P.C. would not be applicable.

In our opinion, Section 319 Cr.P.C. is an enabling provision empowering the court to take
appropriate steps for proceeding against any person not being an accused for also having
committed the offence under trial. It is this part which is under reference before this Court and
therefore in our opinion, while answering the question referred to herein, we do not find any conflict
so as to delve upon the situation that was dealt by this Court in Dharam Pal (CB).
Q (i) What is the stage at which power under Section 319 Cr.P.C. can be exercised?

Ans:

 The stage of inquiry and trial upon cognizance being taken of an offence, has been considered
by a large number of decisions of this Court and that it may be useful to extract the same
hereunder for proper appreciation of the stage of invoking of the powers under Section 319
Cr.P.C. to understand the meaning that can be attributed to the word ‘inquiry’and ‘trial’
as used under the Section.

The stage of inquiry- commences, insofar as the court is concerned, with the filing of the
charge-sheet and the consideration of the material collected by the prosecution, that is mentioned
in the charge-sheet for the purpose of trying the accused. This has to be understood in terms of
Section 2(g) Cr.P.C., which defines an inquiry as follows:

‘inquiry’ means every inquiry, other than a trial, conducted under this Code by a Magistrate or
Court.

Stage of Trial:Trial is distinct from an inquiry and must necessarily succeed it. The purpose of the
trial is to fasten the responsibility upon a person on the basis of facts presented and evidence led in
this behalf. In Moly v. State of Kerala, [AIR 2004 SC 1890], this Court observed that though the
word ‘trial’ is not defined in the Code, it is clearly distinguishable from inquiry. Inquiry must
always be a forerunner to the trial.

 A three-Judge Bench of this Court in State of Bihar v. Ram Naresh Pandey [ AIR 1957 SC 389]
held: The words 'tried' and 'trial' appear to have no fixed or universal meaning. No doubt, in
quite a number of sections in the Code to which our attention has been drawn the words 'tried'
and 'trial' have been used in the sense of reference to a stage after the inquiry.

In Union of India v. Major General Madan Lal Yadav (Retd.), [AIR 1996 SC 1340], a three-Judge
Bench while dealing with the proceedings in General Court Martial under the provisions of the
Army Act 1950, applied legal maxim nullus commodum capere potest de injuria sua propria (no
one can take advantage of his own wrong), and referred to various dictionary meanings of the word
‘trial’ and came to the conclusion:
‘It would, therefore, be clear that trial means act of proving or judicial examination or
determination of the issues including its own jurisdiction or authority in accordance with law or
adjudging guilt or innocence of the accused including all steps necessary thereto. The trial
commences with the performance of the first act or steps necessary or essential to proceed with the
trial.’

In Common cause v. Union of India , [AIR 1997 SC 1539], this Court while dealing with the issue
held:

(i) In case of trials before Sessions Court the trials shall be treated to have commenced when
charges are framed under Section 228 of the Code of Criminal Procedure, 1973 in the concerned
cases.

ii) In cases of trials of warrant cases by Magistrates if the cases are instituted upon police reports
the trials shall be treated to have commenced when charges are framed under Section 240 of the
Code of Criminal Procedure, 1973, while in trials of warrant cases by Magistrates when cases are
instituted otherwise than on police report such trials shall be treated to have commenced when
charges are framed against the concerned accused under Section 246 of the Code of Criminal
Procedure, 1973.

iii) In cases of trials of summons cases by Magistrates the trials would be considered to have
commenced when the accused who appear or are brought before the Magistrate are asked under
Section 251 whether they plead guilty or have any defence to make.

In view of the above, the law can be summarised to the effect that as ‘trial’ means
determination of issues adjudging the guilt or the innocence of a person, the person has to be aware
of what is the case against him and it is only at the stage of framing of the charges that the court
informs him of the same, the ’trial’ commences only on charges being framed.

Thus, we do not approve the view taken by the courts that in a criminal case, trial commences on
cognizance being taken.

 Even the word ‘course’ occurring in Section 319 Cr.P.C., clearly indicates that the power can
be exercised only during the period when the inquiry has been commenced and is going on or
 the trial which has commenced and is going on. It covers the entire wide range of the process of
the pre-trial and the trial stage.

 The word ’course’ therefore, allows the court to invoke this power to proceed against any
person from the initial stage of inquiry upto the stage of the conclusion of the trial.

 The court does not become functus officio even if cognizance is taken so far as it is looking into
the material qua any other person who is not an accused. The word ‘course’ ordinarily
conveys a meaning of a continuous progress from one point to the next in time and conveys
the idea of a period of time; duration and not a fixed point of time.

To say that powers under Section 319 Cr.P.C. can be exercised only during trial would be reducing
the impact of the word ‘inquiry’ by the court. It is a settled principle of law that an
interpretation which leads to the conclusion that a word used by the legislature is redundant,
should be avoided as the presumption is that the legislature has deliberately and consciously used
the words for carrying out the purpose of the Act. The legal maxim "A Verbis Legis Non Est
Recedendum" which means, "from the words of law, there must be no departure" has to be kept
in mind.

 In our opinion, the stage of inquiry does not contemplate any evidence in its strict legal sense,
nor the legislature could have contemplated this inasmuch as the stage for evidence has not yet
arrived. The only material that the court has before it is the material collected by the
prosecution and the court at this stage prima facie can apply its mind to find out as to whether
a person, who can be an accused, has been erroneously omitted from being arraigned or has
been deliberately excluded by the prosecuting agencies.

 This is all the more necessary in order to ensure that the investigating and the prosecuting
agencies have acted fairly in bringing before the court those persons who deserve to be tried
and to prevent any person from being deliberately shielded when they ought to have been tried.
This is necessary to usher faith in the judicial system whereby the court should be empowered
to exercise such powers even at the stage of inquiry and it is for this reason that the legislature
has consciously used separate terms, namely, inquiry or trial in Section 319 Cr.P.C.

Accordingly, we hold that the court can exercise the power under Section 319 Cr.P.C. only after
the trial proceeds and commences with the recording of the evidence and also in exceptional
circumstances as explained herein above.
 What is essential for the purpose of the section is that there should appear some evidence
against a person not proceeded against and the stage of the proceedings is irrelevant. Where
the complainant is circumspect in proceeding against several persons, but the court is of the
opinion that there appears to be some evidence pointing to the complicity of some other
persons as well, Section 319 Cr.P.C. acts as an empowering provision enabling the
court/Magistrate to initiate proceedings against such other persons. The purpose of Section
319 Cr.P.C. is to do complete justice and to ensure that persons who ought to have been tried
as well are also tried.

Note:Therefore, there does not appear to be any difficulty in invoking powers of Section 319
Cr.P.C. at the stage of trial in a complaint case when the evidence of the complainant as well as
his witnesses is being recorded.

 Thus, the application of the provisions of Section 319 Cr.P.C., at the stage of inquiry is to be
understood in its correct perspective. The power under Section 319 Cr.P.C. can be exercised on
the basis of the evidence adduced before the court during a trial.

 So far as its application during the course of inquiry is concerned, it remains limited as referred
to hereinabove, adding a person as an accused, whose name has been mentioned in Column 2
of the charge sheet or any other person who might be an accomplice.

Q. (iii) Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a
comprehensive sense and includes the evidence collected during investigation or the word
"evidence" is limited to the evidence recorded during trial?

Ans:

Before we answer this issue, let us examine the meaning of the word evidence. According to
Section 3 of the Evidence Act, evidence means and includes:

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation
to matters of fact under inquiry; such statements are called oral evidence;

(2) all documents including electronic recordsproduced for the inspection of the Court, such
statements are called documentary evidence;
In Kalyan Kumar Gogoi v. Ashutosh Agnihotri, [AIR 2011 SC 760], while dealing with the issue this
Court held : “The word ‘evidence’ is used in common parlance in three different senses:

(a) as equivalent to relevant,

(b) as equivalent to proof, and

(c) as equivalent to the material, on the basis of which courts come to a conclusion about the
existence or non-existence of disputed facts.”

 It is, therefore, clear that the word ’evidence’ in Section 319 Cr.P.C. means only such
evidence as is made before the court, in relation to statements, and as produced before the
court, in relation to documents. It is only such evidence that can be taken into account by the
Magistrate or the Court to decide whether power under Section 319 Cr.P.C. is to be exercised
and not on the basis of material collected during investigation.

 The inquiry by the court is neither attributable to the investigation nor the prosecution, but by
the court itself for collecting information to draw back a curtain that hides something material.
It is the duty of the court to do so and therefore the power to perform this duty is provided
under the Cr.P.C.

 The unveiling of facts other than the material collected during investigation before the
magistrate or court before trial actually commences is part of the process of inquiry. Such facts
when recorded during trial are evidence. It is evidence only on the basis whereof trial can be
held, but can the same definition be extended for any other material collected during inquiry by
the magistrate or court for the purpose of Section 319 Cr.P.C.

An inquiry can be conducted by the magistrate or court at any stage during the proceedings before
the court. This power is preserved with the court and has to be read and understood accordingly.
The outcome of any such exercise should not be an impediment in the speedy trial of the case.
Though the facts so received by the magistrate or the court may not be evidence, yet it is some
material that makes things clear and unfolds concealed or deliberately suppressed material that
may facilitate the trial. In the context of Section 319 Cr.P.C. it is an information of complicity. Such
material therefore, can be used even though not an evidence in stricto sensuo, but an information
on record collected by the court during inquiry itself, as a prima facie satisfaction for exercising the
powers as presently involved.
 This pre-trial stage is a stage where no adjudication on the evidence of the offences involved
takes place and therefore, after the material alongwith the charge-sheet has been brought
before the court, the same can be inquired into in order to effectively proceed with framing of
charges. After the charges are framed, the prosecution is asked to lead evidence and till that is
done, there is no evidence available in the strict legal sense of Section 3 of the Evidence Act.
The actual trial of the offence by bringing the accused before the court has still not begun.
What is available is the material that has been submitted before the court along with the
charge-sheet. In such situation, the court only has the preparatory material that has been
placed before the court for its consideration in order to proceed with the trial by framing of
charges.

 It is, therefore, not any material that can be utilised, rather it is that material after cognizance is
taken by a court, that is available to it while making an inquiry into or trying an offence, that
the court can utilize or take into consideration for supporting reasons to summon any person on
the basis of evidence adduced before the Court, who may be on the basis of such material,
treated to be an accomplice in the commission of the offence. The inference that can be drawn
is that material which is not exactly evidence recorded before the court, but is a material
collected by the court, can be utilised to corroborate evidence already recorded for the purpose
of summoning any other person, other than the accused.

The word ‘evidence’ therefore has to be understood in its wider sense both at the stage of trial
and, as discussed earlier, even at the stage of inquiry, as used under Section 319 Cr.P.C. The court,
therefore, should be understood to have the power to proceed against any person after summoning
him on the basis of any such material as brought forth before it. The duty and obligation of the court
becomes more onerous to invoke such powers cautiously on such material after evidence has been
led during trial.

In view of the discussion made and the conclusion drawn hereinabove, the answer to the
aforesaid question posed is that:

apart from evidence recorded during trial, any material that has been received by the court after
cognizance is taken and before the trial commences, can be utilised only for corroboration and to
support the evidence recorded by the court to invokethe power under Section 319 Cr.P.C.

Q.(ii) Does the word ‘evidence’ in Section 319 Cr.P.C. means as arising in Examinationin-Chief
or also together with Cross- Examination?
Ans:

 The second question referred to herein is in relation to the word `evidence` as used under
Section 319 Cr.P.C., which leaves no room for doubt that the evidence as understood under
Section 3 of the Evidence Act is the statement of the witnesses that are recorded during trial
and the documentary evidence in accordance with the Evidence Act, which also includes the
document and material evidence in the Evidence Act. Such evidence begins with the statement
of the prosecution witnesses, therefore, is evidence which includes the statement during
examination-in-chief.

 In Rakesh (Supra), it was held that it is true that finally at the time of trial the accused is to be
given an opportunity to cross-examine the witness to test its truthfulness. But that stage would
not arise while exercising the court’s power under Section 319 CrPC. Once the deposition is
recorded, no doubt there being no cross-examination, it would be a prima facie material which
would enable the Sessions Court to decide whether powers under Section 319 should be
exercised or not.

We have given our thoughtful consideration to the diverse views expressed in the aforementioned
cases. Once examination-in-chief is conducted, the statement becomes part of the record. It is
evidence as per law and in the true sense, for at best, it may be rebuttable. An evidence being
rebutted or controverted becomes a matter of consideration, relevance and belief, which is the
stage of judgment by the court. Yet it is evidence and it is material on the basis whereof the court
can come to a prima facie opinion as to complicity of some other person who may be connected
with the offence.

 Hence, what is required is not to have a mini-trial at this stage by having examination and
cross-examination and thereafter rendering a decision on the overt act of such person sought
to be added. In fact, it is this mini-trial that would affect the right of the person sought to be
arraigned as an accused rather than not having any cross-examination at all, for in light of
sub-section 4 of Section 319 Cr.P.C., the person would be entitled to a fresh trial where he
would have all the rights including the right to cross examine prosecution witnesses and
examine defence witnesses and advance his arguments upon the same. Therefore, even on the
basis of Examination- in-Chief, the Court or the Magistrate can proceed against a person as
long as the court is satisfied that the evidence appearing against such person is such that
itprima facie necessitates bringing such person to face trial. In fact, Examination-in-Chief
untested by Cross Examination, undoubtedly in itself, is an evidence.
 Further, in our opinion, there does not seem to be any logic behind waiting till the
cross-examination of the witness is over. It is to be kept in mind that at the time of exercise of
power under Section 319 Cr.P.C., the person sought to be arraigned as an accused, is in no way
participating in the trial. Even if the cross-examination is to be taken into consideration, the
person sought to be arraigned as an accused cannot cross examine the witness(s) prior to
passing of an order under Section 319 Cr.P.C., as such a procedure is not contemplated by the
Cr.P.C. Secondly, invariably the State would not oppose or object to naming of more persons as
an accused as it would only help the prosecution in completing the chain of evidence, unless
the witness(s) is obliterating the role of persons already facing trial. More so, Section 299
Cr.P.C. enables the court to record evidence in absence of the accused in the circumstances
mentioned therein.

Thus, in view of the above, we hold that power under Section 319 Cr.P.C. can be exercised at the
stage of completion of examination in chief and court does not need to wait till the said evidence is
tested on cross-examination for it is the satisfaction of the court which can be gathered from the
reasons recorded by the court, in respect of complicity of some other person(s), not facing the trial
in the offence.

Q. (iv) What is the degree of satisfaction required for invoking the power under Section 319
Cr.P.C.?

Ans:

 Section 319(1) Cr.P.C. empowers the court to proceed against other persons who appear to be
guilty of offence, though not an accused before the court. The word appear means clear to the
comprehension or a phrase near to, if not synonymous with proved.It imparts a lesser degree of
probability than proof.

 At the time of taking cognizance, the court has to see whether a prima facie case is made out
to proceed against the accused. Under Section 319 Cr.P.C., though the test of prima facie case
is the same, the degree of satisfaction that is required is much stricter.

 In Rajendra Singh [(2007)7,SCC 378] the Court observed: Be it noted, the court need not be
satisfied that he has committed an offence. It need only appear to it that he has committed an
offence. In other words, from the evidence it need only appear to it that someone else has
committed an offence, to exercise jurisdiction under Section 319 of the Code. Even then, it has a
discretion not to proceed, since the expression used is may and not shall. The legislature
 apparently wanted to leave that discretion to the trial court so as to enable it to exercise its
jurisdiction under this section. The expression appears indicates an application of mind by the
court to the evidence that has come before it and then taking a decision to proceed under
Section 319 of the Code or not.

 In Sarabjit Singh v. State of Punjab, [AIR 2009 SC 2792], while explaining the scope of Section
319 Cr.P.C., a two-Judge Bench of this Court observed: “21-For the aforementioned purpose,
the courts are required to apply stringent tests; one of the tests being whether evidence on
record is such which would reasonably lead to conviction of the person sought to be summoned.
Whereas the test of prima facie case may be sufficient for taking cognizance of an offence; at
the stage of framing of charge, the court must be satisfied that there exists a strong suspicion.
While framing charge in terms of Section 227 of the Code, the court must consider the entire
materials on record to form an opinion that the evidence if unrebutted would lead to a
judgment of conviction. Whether a higher standard be set up for the purpose of invoking the
jurisdiction under Section 319 of the Code is the question. The answer to these questions should
be rendered in the affirmative.”

 The test that has to be applied is one which is more than prima facie case as exercised at the
time of framing of charge, but short of satisfaction to an extent that the evidence, if goes
unrebutted, would lead to conviction. In the absence of such satisfaction, the court should
refrain from exercising power under Section 319 Cr.P.C.

 In Section 319 Cr.P.C. the purpose of providing if it appears from the evidence that any person
not being the accused has committed any offence is clear from the words for which such person
could be tried together with the accused. The words used are not for which such person could
be convicted. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form
any opinion as to the guilt of the accused.

Q.(v) In what situations can the power under this section be exercised: Not named in FIR; Named
in the FIR but not charge-sheeted or has been discharged?

Ans:

 In Joginder Singh v. State of Punjab, [AIR 1979 SC 339], a three-Judge Bench of this Court held
that as regards the contention that the phrase any person not being the accused occurring in
 Section 319 Cr.P.C. excludes from its operation an accused who has been released by the police
under Section 169 Cr.P.C. and has been shown in Column 2 of the charge-sheet, the contention
has merely to be rejected. The said expression clearly covers any person who is not being tried
already by the Court and the very purpose of enacting such a provision like Section 319 (1)
Cr.P.C. clearly shows that even persons who have been dropped by the police during
investigation but against whom evidence showing their involvement in the offence comes
before the criminal court, are included in the said expression.

 In Anju Chaudhary v. State of U.P., [(2013) 6 SCC 384], a two-Judge Bench of this Court held
that even in the cases where report under Section 173(2) Cr.P.C. is filed in the court and
investigation records the name of a person in Column 2, or even does not name the person as
an accused at all, the court in exercise of its powers vested under Section 319 Cr.P.C. can
summon the person as an accused and even at that stage of summoning, no hearing is
contemplated under the law.

 In Suman v. State of Rajasthan, [AIR 2010 SC 518], a two- Judge Bench of this Court observed
that there is nothing in the language of this sub-section from which it can be inferredthat a
person who is named in the FIR or complaint, but against whom charge- sheet is not filed by the
police, cannot be proceeded against even though in the course of any inquiry into or trial of any
offence, the court finds that such person has committed an offence for which he could be tried
together with the other accused.

 However, there is a great difference with regard to a person who has been discharged. A
person who has been discharged stands on a different footing than a person who was never
subjected to investigation or if subjected to, but not charge-sheeted. Such a person has stood
the stage of inquiry before the court and upon judicial examination of the material collected
during investigation; the court had come to the conclusion that there is not even a prima facie
case to proceed against such person. Generally, the stage of evidence in trial is merely proving
the material collected during investigation and therefore, there is not much change as regards
the material existing against the person so discharged. Therefore, there must exist compelling
circumstances to exercise such power. The Court should keep in mind that the witness when
giving evidence against the person so discharged, is not doing so merely to seek revenge or is
naming him at the behest of someone or for such other extraneous considerations. The court
has to be circumspect in treating such evidence and try to separate the chaff from the grain. If
after such careful examination of the evidence, the court is of the opinion that there does exist
evidence to proceed against the person so discharged, it may take steps but only in accordance
with Section 398 Cr.P.C. without resorting to the provision of Section 319 Cr.P.C. directly.
Thus, it is evident that power under Section 319 Cr.P.C. can be exercised against a person not
subjected to investigation, or a person placed in the Column 2 of the Charge-Sheet and against
whom cognizance had not been taken, or a person who has been discharged. However, concerning
a person who has been discharged, no proceedings can be commenced against him directly under
Section 319 Cr.P.C. without taking recourse to provisions of Section 300(5) read with Section 398
Cr.P.C..

We accordingly sum up our conclusions as follows:

Q.1 What is the stage at which power under Section 319 Cr.P.C. can be exercised? AND Q.III
Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive
sense and includes the evidence collected during investigation or the word "evidence" is limited
to the evidence recorded during trial?

Ans. In Dharam Pal's case, the Constitution Bench has already held that after committal, cognizance
of an offence can be taken against a person not named as an accused but against whom materials
are available from the papers filed by the police after completion of investigation. Such cognizance
can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under
Section 319 Cr.P.C. becomes available for summoning an additional accused. Section 319 Cr.P.C.,
significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial
commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry.
Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the
inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such
enquiries can be used for corroboration of theevidence recorded in the court after the trial
commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose
name has been shown in Column 2 of the chargesheet. In view of the above position the word
'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence
brought during a trial.

Q.II Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested
by cross-examination or the court can exercise the power under the said provision even on the
basis of the statement made in the examination-in-chief of the witness concerned?
Ans:Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed
is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding
against such person is to commence from the stage of taking of cognizance, the Court need not wait
for the evidence against the accused proposed to be summoned to be tested by cross-examination.

Q.IV What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C.
to arraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if
the court is satisfied that the accused summoned will in all likelihood be convicted?

Ans:Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as
if he had been an accused when the Court initially took cognizance of the offence, the degree of
satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the
same as for framing a charge. The difference in the degree of satisfaction for summoning the
original accused and a subsequent accused is on account of the fact that the trial may have already
commenced against the original accused and it is in the course of such trial that materials are
disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay
of the trial - therefore the degree of satisfaction for summoning the accused (original and
subsequent) has to be different.

Q.V Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named
in the FIR but not chargesheeted or who have been discharged?

Ans:A person not named in the FIR or a person though named in the FIR but has not been
chargesheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C.
provided from the evidence it appears that such person can be tried along with the accused already
facing trial. However, in so far as an accused who has been discharged is concerned the requirement
of Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh. The
matters be placed before the appropriate Bench for final disposal in accordance with law explained
hereinabove.
 Mehmood Nayyar Azam v. State of Chhattisgarh

(2012) 8 SCC 1

DIPAK MISRA, J.:

Leave granted.

 A human personality is endowed with potential infinity and it blossoms when dignity is
sustained. The sustenance of such dignity has to be the superlative concern of every sensitive
soul. The essence of dignity can never be treated as a momentary spark of light or, for that
matter, “a brief candle”, or “a hollow bubble”. .

 When a dent is created in the reputation, humanism is paralysed. There are some
megalomaniac officers who conceive the perverse notion that they are the “Law” forgetting
that law is the science of what is good and just and, in the very nature of things, protective of a
civilised society. But, some, the incurable ones, become totally oblivious of the fact that living
with dignity has been enshrined in our constitutional philosophy and it has its ubiquitous
presence, and the majesty and sacrosanctity of dignity cannot be allowed to be crucified in the
name of some kind of police action.

The aforesaid prologue gains signification since in the case at hand:

 a doctor, humiliated in custody, sought a public law remedy for grant of compensation and the
High Court, despite no factual dispute, has required him to submit a representation to the State
Government for adequate relief pertaining to grant of compensation after expiry of 19 years
with a further stipulation that if he is aggrieved by it, he can take recourse to requisite
proceedings available to him under law. We are pained to say that this is not only asking a man
to prefer an appeal from Caesar to Caesar's wife but it also compels him like a cursed Sisyphus
[Ed.: In Greek mythology Sisyphus was the King of Corinth who was punished by the Gods by
being compelled to roll a huge stone up a hill, only to watch it roll back down and repeat the
exercise forever, thus consigning him to an eternity of useless efforts and unending
frustration.] to carry the stone to the top of the mountain wherefrom the stone rolls down and
he is obliged to repeatedly perform that futile exercise.
 After issuing notice, this Court on 17-2-2012 [Mehmood Nayyar Azam v. State of Chhattisgarh,
SLP (C) No. 34702 of 2010, decided on 17-2-2012 (SC)] thought it apposite that the appellant
should submit a representation within a week which shall be considered by the respondents
within four weeks therefrom.

 In pursuance of the aforesaid order, the appellant submitted a representation which has been
rejected on 19-3-2012 by the OSD/Secretary, Government of Chhattisgarh, Home (Police)
Department. In the rejection order, it has been stated as follows:

“In the aforesaid cases, the arrest and the action regarding submission of charge-sheet in the
Hon'ble Court was in accordance with law.

 On 24-9-1992 the police officers taking your photograph and writing objectionable words
thereon was against the legal procedure. Considering this, action was taken against the guilty
police officers concerned in accordance with law and two police officers were punished.

 In your representation, compensation has been demanded on the following grounds:

A. Defamation was caused due to the police officers taking photograph.

B. Your wife became unwell mentally. She is still unwell.

C. Difficulty in marriage of daughter.

Regarding the aforesaid grounds, the actual position is as follows:

A. Defamation is such a subject, the decision on which is within the jurisdiction of the competent
court. No decision pertaining to defamation has been received from the court of competent
jurisdiction. Therefore, it would not be proper for the State Government to take a decision in this
regard.

B. Regarding mental ailment of your wife, no such basis has been submitted by you, on the basis of
which any conclusion may be drawn.

C. On the point of there being no marriage of children also, no such document or evidence has
been produced by you before the Government along with the representation, on the basis of which
any decision may be taken.
Therefore, in the light of the above, the State Government hereby rejects your representation and
accordingly decides your representation.”

At the very outset, we are obliged to state that five aspects are clear as day and do not remotely
admit of any doubt.

 First, the appellant was arrested in respect of the alleged offence under the Penal Code, 1860
and the Electricity Act, 2003;

 Second, there was a direction by the Magistrate for judicial remand and thereafter instead of
taking him to jail the next day, he was brought to the police station;

 Third, self-humiliating words were written on the placard and he was asked to hold it and
photographs were taken; and

 Fourth, the photographs were circulated in general public and were also filed by one of the
respondents in a revenue proceeding; and

 Fifth, the High Court, in categorical terms, has found that the appellant was harassed.

We have referred to the aforesaid paragraphs of D.K. Basu case [(1997) 1 SCC 416 : 1997 SCC (Cri)
92 : AIR 1997 SC 610] to highlight thatthis Court has emphasised on the concept of mental agony
when a person is confined within the four walls of police station or lock-up. Mental agony stands in
contradistinction to infliction of physical pain. In the said case, the two-Judge Bench referred to
Article 5 of the Universal Declaration of Human Rights, 1948 which provides that: “No one shall
be subjected to torture or to cruel, inhuman or degrading treatment or punishment. ” Thereafter,
the Bench adverted to Article 21 and proceeded to state that the expression “life or personal
liberty” has been held to include the right to live with human dignity and thus, it would also
include within itself a guarantee against torture and assault by the State or its functionaries.
Reference was made to Article 20(3) of theConstitution which postulates that a person accused of
an offence shall not be compelled to be a witness against himself.
 It is worthy to note that in D.K. Basu [(1997) 1 SCC 416] , the concern shown by this Court in
Joginder Kumar v. State of U.P. [(1994) 4 SCC 260] was taken note of. In Joginder Kumar case
this Court voiced its concern regarding complaints of violation of human rights during and after
arrest.

After referring to Joginder Kumar , A.S. Anand, J. (as His Lordship then was), dealing with the
various facets of Article 21 in D.K. Basu case [(1997) 1 SCC 416] , stated that

any form of torture or cruel, inhuman or degrading treatment would fall within the ambit of Article
21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the
functionaries of the Government become law-breakers, it is bound to breed contempt for law and
would encourage lawlessness and every man would have the tendency to become law unto himself
thereby leading to anarchy. No civilised nation can permit that to happen, for a citizen does not
shed off his fundamental right to life, the moment a policeman arrests him. The right to life of a
citizen cannot be put in abeyance on his arrest. The precious right guaranteed by Article 21 of the
Constitution of India cannot be denied to convicts, undertrials, detenus and other prisoners in
custody, except according to the procedure established by law by placing such reasonable
restrictions as are permitted by law.

From the aforesaid discussion, there is no shadow of doubt that any treatment meted out to an
accused while he is in custody which causes humiliation and mental trauma corrodes the concept
of human dignity.

 The majesty of law protects the dignity of a citizen in a society governed by law.When citizenry
rights are sometimes dashed against and pushed back by the members of City Halls, there has
to be a rebound and when the rebound takes place, Article 21 of the Constitution springs up to
action as a protector. That is why, an investigator of a crime is required to possess the qualities
of patience and perseverance as has been stated in Nandini Satpathy v. P.L. Dani [(1978) 2 SCC
424] .

In Delhi Judicial Service Assn. v. State of Gujarat [(1991) 4 SCC 406] , while dealing with the role of
police, this Court condemned the excessive use of force by the police and observed as follows:

“39. The main objective of police is to apprehend offenders, to investigate crimes and to prosecute
them before the courts and also to prevent commission of crime and above all to ensure law and
order to protect the citizens' life and property. The law enjoins the police to be scrupulously fair to
the offender and the Magistracy is to ensure fair investigation and fair trial to an offender. The
purpose and object of Magistracy and police are complementary to each other. It is unfortunate
that these objectives have remained unfulfilled even after 40 years of our Constitution. Aberrations
of police officers and police excesses in dealing with the law and order situation have been subject
of adverse comments from this Court as well as from other courts but it has failed to have any
corrective effect on it. The police has power to arrest a person even without obtaining a warrant of
arrest from a court. The amplitude of this power casts an obligation on the police „ [and it] must
bear in mind, as held by this Court that if a person is arrested for a crime, his constitutional and
fundamental rights must not be violated.”

It is imperative to state that it is the sacrosanct duty of the police authorities to remember that a
citizen while in custody is not denuded of his fundamental right under Article 21 of the Constitution.
The restrictions imposed have the sanction of law by which his enjoyment of fundamental right is
curtailed but his basic human rights are not crippled so that the police officers can treat him in an
inhuman manner. On the contrary, they are under obligation to protect his human rights and
prevent all forms of atrocities. We may hasten to add that a balance has to be struck and, in this
context, we may fruitfully quote a passage from D.K. Basu [(1997) 1 SCC 416:

“Using any form of torture for extracting any kind of information would neither be ‘right nor just
nor fair’ and, therefore, would be impermissible, being offensive to Article 21. Such a crime
suspect must be interrogated — indeed subjected to sustained and scientific interrogation —
determined in accordance with the provisions of law. He cannot, however, be tortured or subjected
to third-degree methods or eliminatedwith a view to elicit information, extract confession or derive
knowledge about his accomplices, weapons, etc. His constitutional right cannot be abridged [except]
in the manner permitted by law, though in the very nature of things there would be qualitative
difference in the method of interrogation of such a person as compared to an ordinary
criminal.”(emphasis in original)

Decision of Supreme Court in the Instant Appeal:

 In the case at hand, the appellant, while in custody, was compelled to hold a placard in which
condemning language was written. He was photographed with the said placard and the
photograph was made public. It was also filed in a revenue proceeding by the fifth respondent.
 The High Court has recorded that the competent authority of the State has conducted an
enquiry and found the erring officers to be guilty. The High Court has recordedthe findings in
the favour of the appellant but left him to submit a representation to the authorities concerned.

 This Court, as has been indicated earlier, granted an opportunity to the State to deal with the
matter in an appropriate manner but it rejected the representation and stated that it is not a
case of defamation.

 We may at once clarify that we are not at all concerned with defamation as postulated under
Section 499 IPC. We are really concerned how in a country governed by the rule of law and
where Article 21 of the Constitution is treated to be sacred, the dignity and social reputation of
a citizen has been affected.

As we perceive, from the admitted facts borne out on record, the appellant has been humiliated.
Such treatment is basically inhuman and causes mental trauma. In Kaplan and Sadock's Synopsis of
Psychiatry, while dealing with torture, the learned authors have stated that intentional physical and
psychological torture of one human by another can have emotionally damaging effects comparable
to, and possibly worse than, those seen with combat and other types of trauma. Any psychological
torture inflicts immense mental pain. A mental suffering at any age in life can carry the brunt and
may have nightmarish effect on the victim. The hurt develops a sense of insecurity, helplessness and
his self-respect gets gradually atrophied. We have referred to such aspects only to highlight that in
the case at hand, the police authorities possibly had some kind of sadistic pleasure or to “please
someone” meted out the appellant with this kind of treatment.

 It is not to be forgotten that when dignity is lost, the breath of life gets into oblivion. In a
society governed by the rule of law where humanity has to be a laser beam, as our
compassionate Constitution has so emphasised, the police authorities cannot show the power
or prowess to vivisect and dismember the same. When they pave such path, law cannot
become a silent spectator. As pithily stated inJennison v. Baker [(1972) 2 QB 52 : (1972) 2 WLR
429 : (1972) 1 All ER 997 (CA)] : (QB p. 66 H) “ „ ‘The law should not be seen to sit by
limply, while those who defy if go free, and those who seek its protection lose hope.’” (All
ER p. 1006d)

Presently, we shall advert to the aspect of grant of compensation.

 The learned counsel for the State, as has been indicated earlier, has submitted with immense
vehemence that the appellant should sue for defamation. Our analysis would clearly show that
the appellant was tortured while he was in custody. When there is contravention of human
rights, the inherent concern as envisaged in Article 21 springs to life and enables the citizen to
seek relief by taking recourse to public law remedy.

In this regard, we may fruitfully refer to Nilabati Behera v. State of Orissa [(1993) 2 SCC 746]
wherein it has been held thus: (SCC pp. 762-63, para 17)

“17. „ ‘a claim in public law for compensation’ for contravention of human rights and
fundamental freedoms, the protection of which is guaranteed in the Constitution, is an
acknowledged remedy for enforcement and protection of such rights, and such a claim based on
strict liability made by resorting to a constitutional remedy provided for the enforcement of a
fundamental right is ‘distinct from, and in addition to, the remedy in private law for damages
for the tort’ resulting from the contravention of the fundamental right. The defence of sovereign
immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can
be no question of such a defence being available in theconstitutional remedy. It is this principle
which justifies award of monetary compensation for contravention of fundamental rights
guaranteed by the Constitution, when that is the only practicable mode of redress available for the
contravention made by the State or its servants in the purported exercise of their powers, and
enforcement of the fundamental right is claimed by resort to the remedy in public law under the
Constitution by recourse to Articles 32 and 226 of the Constitution.”

41. Dr A.S. Anand, J. (as His Lordship then was), in his concurring opinion, expressed that: (Nilabati
case (1993) 2 SCC 746, pp. 768-69, para 34)

“34. „ The relief of monetary compensation, as exemplary damages, in proceedings under Article
32 by the Supreme Court or under Article 226 by the High Courts, for established infringement of the
indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law
and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights
of the citizen. The purpose of public law is not only to civilize public power but also to assure the
citizen that they live under a legal system which aims to protect their interests and preserve their
rights.
Therefore, when the court moulds the relief by granting ‘compensation’ in proceedings under
Articles 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it
does so under the public law by way of penalising the wrongdoer and fixing the liability for the
public wrong on the State which has failed in its public duty to protect the fundamental rights of the
citizen.

The payment of compensation in such cases is not to be understood, as it is generally understood in

a civil action for damages under the private law but in the broader sense of providing relief by an
order of making ‘monetary amends’ under the public law for the wrong done due to breach of
public duty, of not protecting the fundamental rights of the citizen.

The compensation is in the nature of ‘exemplary damages’ awarded against the wrongdoer for
the breach of its public law duty and is independent of the rights available to the aggrieved party to
claim compensation under the private law in an action based on tort, through a suit instituted in a
court of competent jurisdiction or/and prosecute the offender under the penal law. ”

42. In Sube Singh v. State of Haryana [(2006) 3 SCC 178] a three-Judge Bench of the Apex Court,
after referring to its earlier decisions, has opined as follows: (SCC pp. 198-99, para 38)

“38. It is thus now well settled that the award of compensation against the State is an appropriate
and effective remedy for redress of an established infringement of a fundamental right under Article
21, by a public servant. The quantum of compensation will, however, depend upon the facts and
circumstances of each case. Award of such compensation (by way of public law remedy) will not
come in the way of the aggrieved person claiming additional compensation in a civil court, in the
enforcement of the private law remedy in tort, nor come in the way of the criminal court ordering
compensation under Section 357 of the Code of Criminal Procedure.”

At this stage, we may fruitfully refer to the decision in Hardeep Singh v. State of M.P. [(2012) 1 SCC
748].:

The appellant therein was engaged in running a coaching centre where students were given tuition
to prepare for entrance test for different professional courses. On certain allegation, he was
arrested and taken to police station where he washandcuffed by the police without there being any
valid reason. A number of daily newspapers published the appellant's photographs and on seeing his
photograph in handcuffs, the appellant's elder sister was so shocked that she expired. After a long
and delayed trial, the appellant, Hardeep Singh, filed a writ petition before the High Court of
Madhya Pradesh at Jabalpur that the prosecution purposefully caused delay in conclusion of the
trial causing harm to his dignity and reputation. The learned Single Judge, who dealt with the
matter, did not find any ground to grant compensation. On an appeal being preferred, the Division
Bench observed that an expeditious trial ending in acquittal could have restored the appellant's
personal dignity but the State instead of taking prompt steps to examine the prosecution witnesses
delayed the trial for five long years. The Division Bench further held that there was no warrant for
putting the handcuffs on the appellant which adversely affected his dignity. Be it noted, the Division
Bench granted compensation of Rs 70,000

43. This Court, while dealing with the facet of compensation, held thus: (Hardeep Singh case [(2012)
1 SCC 748]

“17. Coming, however, to the issue of compensation, we find that in the light of the findings
arrived at by the Division Bench, the compensation of Rs 70,000 was too small and did not do justice
to the sufferings and humiliation undergone by the appellant. In the facts and circumstances of the
case, we feel that a sum of Rs 2,00,000 (Rupees two lakhs) would be an adequate compensation for
the appellant and would meet the ends of justice. We, accordingly, direct the State of Madhya
Pradesh to pay to the appellant the sum of Rs 2,00,000 (Rupees two lakhs) as compensation. In case
the sum of Rs 70,000 as awarded by the High Court, has already been paid to the appellant, the
State would naturally pay only the balance amount of Rs 1,30,000 (Rupees one lakh thirty
thousand).”

Thus, suffering and humiliation were highlighted and the amount of compensation was enhanced.

On a reflection of the facts of the case, it is luculent that:

 the appellant had undergone mental torture at the hands of insensible police officials. He might
have agitated to ameliorate the cause of the poor and the downtrodden, but, the social
humiliation that has been meted out to him is quite capable of destroying the heart of his
philosophy. It has been said that philosophy has the power to sustain a man's courage. But
courage is based on self-respect and when self-respect is dented, it is difficult even for a very
strong-minded person to maintain that courage. The initial invincible mind paves the path of
corrosion. As is perceptible, the mindset of the protectors of law appears to cause torment and
insult and tyrannise the man who is helpless in custody.

 There can be no trace of doubt that he is bound to develop stress disorder and anxiety which
destroy the brightness and strength of the will power. It has been said that anxiety and stress
are slow poisons. When torment is added, it creates commotion in the mind and the slow
poisons get activated. The inhuman treatment can be well visualised when the appellant came
 out from custody and witnessed his photograph being circulated with the self-condemning
words written on it.

This withers away the very essence of life as enshrined under Article 21 of the Constitution. Regard
being had to the various aspects which we have analysed and taking note of the totality of facts and
circumstances, we are disposed to think that a sum of Rs 5 lakhs (Rupees five lakhs only) should be
granted towards compensation to the appellant and, accordingly, we so direct.

The said amount shall be paidby the respondent State within a period of six weeks and be realised
from the erring officers in equal proportions from their salary as thought appropriate by the
competent authority of the State.
 Mrs. Neelam Katara v. Union of India

(2003) II Del 377

PRADEEP NANDRAJOG. J.

 The unfortunate mother Mrs.Neelam Katara filed the present petition pertaining to the tragic
homocidal death of her son, Nitish who had gone to attend the marriage of his friend at
Diamond Palace, Industrial Area New Kavi Nagar. Ghaziabad U.P. on the night intervening
16/17 February 2002.

 Respondent No.6, the son of a sitting Member of the Rajya Sabha came to be a suspect in the
homocidal death of Nitish Katara. The petitioner sought various reliefs. From time to time
various directions and orders were passed in the present petition resulting in the petition, as
far as the petition was concerned as having become infructuous.

 However, one aspect of the matter of genera public importance survives and counsel for the
parties stated that in public interest certain directions pertaining to witness protection need to
be issued.

 The edifice of administration of justice is based upon witness coming forward and deposing
without fear or favour, without intimidation or allurement in Courts of Law. If witnesses are
deposing under fear or intimidation or for favour or allurement, the foundation of
administration of justice not only gets weakened, but in cases it may even gets obliterated.

 The dockets in Courts today are overflowing to the brim and especially in criminal delivery
system no shorthand essay is possible; the accused must get a fair, proper and just hearing in
the adversarial system of Administration of Justice which we have adopted. Delay results. This
leads to the possibility of the witness being harassed or intimidated at the hands of the accused
or his accomplices.

QHas the time ripened to provide for safeguards for the witnesses that they come forwards and
depose without fear, without intimidation, without favour or allurement of the accused?
QHas prevention of accused person from suborning witnesses and turning them hostile to the case
of the prosecution become an urgent necessity?

Counsel for the petitioner Shri Arvind Nigam contended:

 that there are a large number of reports and in particular the report of the Vohra Committee
which have come to a finding that criminalisation has struck at the very foundation of the
Indian polity and there is urgent need to deal with this criminalisation on a war footing to
prevent the polity from further degenerating.

 Counsel commended us to take judicial notice that case after case of the prosecution was
collapsing, owing to the material witnesses turning hostile to the case of the prosecution. Why
was this happening in case after case questioned the counsel? He volunteered the answer
himself, ''fear of the accused person".

 Our attention was also drawn to the various Reports of the Law Commission of India and in
particular the 154th and 178th Reports which dealt with the menace of prosecution witnesses
turning hostile.

Counsel for the State submitted:

 that these Reports are being processed in consultation with the State Government as Criminal
Law and Criminal Procedure are on the concurrent list of 7 th Schedule to the Constitution.
Counsel for the State informed us that the Government is aware of the plight of the witnesses
appearing as prosecution witnesses and the Governmentintends to frame a Scheme for
protection of witnesses as the Government was awake to the reality that in the administration
of justice, witness deposition forms an important bedrock.

 that the Government had set up a Committee under the Chairmanship of Justice V.S. Malimath,
Former Chief Justice of Karnataka and Kerala High Courts to consider and recommends
measures for revamping the Criminal Justice System in the country. The counsel, however,
fairly conceded that it was uncertain as to when the suggestions would be incorporated
legislatively on the statute book.

Decision of Supreme Court:

We are, therefore, of the opinion that since this area is an unoccupied field, till the legislature
legislates thereon, it would be appropriate for the Court to lay down guidelines in respect of
protection to be granted to the witnesses.

 The Hon'ble Supreme Court in Vineet Narain Vs. Union of India, 1998(1) SCC 226 had directed
that steps should be taken immediately for the constitution of an able and impartial agency
comprising persons of unimpeachable integrity to form functions akin to those of the Director
of Prosecutions in United Kingdom.

Legal Framework for Witness Protection in UK:

 In the United Kingdom, the Director of Prosecutions was created in 1879. He is appointed by
the Attorney General from amongst the Members of the Bar. He discharges the functions
under the Superintendence of Attorney General. The Director of Prosecutions plays a direct
role in the prosecution system. He even administers "Witness Protection Programmes".
Legislations have been enacted in Australia, Canada and the United States of America.

Legal Framework for Witness Protection in USA:

 In the United States of America the Witness Protection and Reallocation Programme is
regulated by the Attorney-General for Protection of Witnesses in the Federal Government or
State Government in official proceedings concerning an organised criminal activities or other
serious offences. The Attorney General under the Programme is entitled to:

(a) provide suitable documents to enable the witness to establish a new identify;

(b) provide housing for the witness:

(c) provide transportation to the witness.

(d) provide payment to meet basic living expenses;

(e) provide help in obtaining employment;

(f) provide services necessary to assist the person becoming self-sustaining:

(g) regulate the disclosure of the identity of the person having regard to the danger such a
disclosure would pose to the person;
(h) protect the confidentiality and identity of the person.

Legal Framework for Witness Protection in Canada:

 In Canada, the Witness Protection Act, 1996 lays down the factors which the Attorney General
has to consider while deciding whether a witness should be admitted to the Program. They are
as under:

(a) the nature of the risk to the security of the witness;

(b) the danger to the community if the witness is admitted to the Program:

(c) the nature of the inquiry, investigation or prosecution involving the witness and the importance
of the witness in the matter;

(d) the value of the information or evidence given or agreed to be given or of the participation by
the witness;

(e) the likelihood of the witness being able to adjust to the Program, having regard to the witness's
maturity, judgment and other personal characteristics and the family relationships of the witness;

(f) the cost of maintaining the witness in the Program;

(g) alternate methods of protecting the witness without admitting the witness to the Program, and

(h) such other factors as the Commissioner deems relevant."

Legal Framework for Witness Protection in Australia:

 In Australia, the Witness Protection Act, 1994 was enacted. A Commissioner was designated to
monitor the National Witness Protection Program. The legislative guideline to determine as to
which witness should be included in the National Witness Protection Program, is as under:-

Selection for inclusion in the NWPP:

(1) The Commissioner has the sole responsibility of deciding whether to include a witness in the
NWPP. including cases where an approved authority has requested that a witness be included m
the NWPP.

(2) A witness may be included in the NWPP only if:

(a) the Commissioner has decided that the witness be included;

(b) the witness agrees to be included; and

(c) the witness signs a memorandum of understanding in accordance .with section 9 or;

(i) if the witness is under 18 years - a parent or guardian of the witness signs such a
memorandum; or

(ii)if the witness otherwise lacks legal capacity to sign the memorandum - a guardian or
other person who is usually responsible for the care and control of the witness signs such a
memorandum.

(3) The Commissioner must, in deciding whether to include a witness in the NWPP have regard to:

(a) whether the witness has a criminal record particularly in respect of crimes of violence, and
whether that record indicates a risk to the public if the witness is included in the NWPP;

(b) if a psychological or psychiatric examination of the witness has been conducted to determine
the witness's suitability for inclusion in the NWPP-- that examination or evaluation; and

(c) the seriousness of the offence to which any relevant evidence or statement relates; and

(d) the nature and importance of any relevant evidence or statement; and

(e) the nature of the perceived danger to the witness; and

(f) the nature of the witness s relationship to other witnesses being assessed for inclusion in the
NWPP;

(4) may have regard to such other matters as the Commissioner considers relevant.

(a) a parent or guardian of a witness signs a memorandum of understanding because the witness
was under 18 years;
(b) the witness is included in the NWPP and remains a participant until after he or she turns 18; the
Commissioner may require the participant to sign another memorandum of understanding.

 The Hon'ble Supreme Court in the judgment Vishaka Vs. State of Rajasthan reported as 1997(6)
SCC 241 observed that in the absence of domestic law occupying the field, an International
Convention not inconsistent with the fundamental rights and the harmony with its spirit may be
read into the municipal law.

 it was observed that if need be, Courts have the necessary power, by issuing directions to fill
the vacuum till such time the legislature steps in to cover the gap or the executive discharges
its role.

Given the financial constraints which we have in this country, it may not be possible to have a
Witness Protection Program on the extended scale at which it is being implemented in the United
States of America, Canada, Australia or for that matter in the United Kingdom. But a beginning
has to be made.

 Society has an interest in the administration of justice and it may be true that let a 100 accused
escape but let not an innocent be punished, but this cannot be stretched to mean an escape
route should be provided to the accused to hijack administration of justice and secure his
innocence, not as a result of a fair adversarial litigation but as a result of ‘might being right.'

 At least, in two categories of cases, namely, organised crime and a crime punishable with the
capital sentence or imprisonment for life, witness protection is required. It has been coming to
the notice of this court that in heinous crimes the witnesses and sometimes the victim turn
hostile. There is strong material from which it can be guessed that cause is fear and compulsion.
Till a suitable Legislation is brought on the Statute book, we direct that following guidelines shall
operate for protection of the witnesses.

These guidelines shall be known as '"Witness Protection Guidelines":

 "Witness" means a person whose statement has been recorded by the Investigating Officer
under Section 161 Cr.P.C. pertaining to a crime punishable with death or life imprisonment.

 "Accused" means a person charged with or suspected with the commission of a crime
punishable with death or life imprisonment.

 "Competent Authority" means the Member Secretary, Delhi legal Services Authority.

ADMISSION TO PROTECTION:

 The Competent Authority, on receipt of a request from a witness shall determine whether the
witness requires police protection, to what extent and for what duration.

FACTORS TO BE CONSIDERED:

In determining whether or not a witness should be provided police protection, Competent

Authority shall take into account the following factors:

(i) The nature of the risk to the security of the witness which may emanate from the accused or his
associates.

(ii) The nature of the investigation or the criminal case.

(iii) The importance of the witness in the matter and the value of the information or evidence given
or agreed to be given by the witness.
(iv) The cost of providing police protection to the witness.

OBLIGATION OF THE POLICE:

(1) While recording statement of the witness under Section 161 Cr.P.C., it will be the duty of the
Investigating Officer to make the witness aware of the "Witness Protection Guidelines'" and also
the fact that in case of any threat he can approach the Competent Authority. This the Investigating
Officer will inform in writing duly acknowledged by the witness.

(2) It shall be the duty of the Commissioner of Police to provide security to a witness in respect of
whom an order has been passed by the Competent Authority directing police protection.

We further direct that the respondent State shall give due publicity to the guidelines framed. We
make it clear that the guidelines framed by us would not be in derogation of the powers of the
concerned criminal court, if it forms an opinion that a witness requires police protection to so
direct.
 Mahender Chawla v. Union of India, 2018 SCC OnLine SC 2679

Bench: S A Nazeer, A Sikri

Author:A.K. SIKRI, J.

1) The instant writ petition filed by the petitioners under Article 32 of the Constitution of India
raises important issues touching upon the efficacy of the criminal justice system in this country.
In an adversarial system, which is prevalent by India, the court is supposed to decide the cases
on the basis of evidence produced before it. This evidence can be in the form of documents. It
can be oral evidence as well, i.e., the deposition of witnesses. The Signature Not Verified
witnesses, thus, play a vital role in facilitating the court to arrive at Digitally signed by SUSHIL
KUMAR RAKHEJA Date: 2018.12.05 correct findings on disputed questions of facts and to find
out 16:10:52 IST Reason:

where the truth lies. They are, therefore, backbone in decision making process. Whenever, in
a dispute, the two sides come out with conflicting version, the witnesses become important
tool to arrive at right conclusions, thereby advancing justice in a matter.

This principle applies with more vigor and strength in criminal cases inasmuch as most of such
cases are decided on the basis of testimonies of the witnesses, particularly, eye-witnesses, who
may have seen actual occurrence/crime. It is for this reason that Bentham stated more than
150 years ago that “witnesses are eyes and ears of justice”.

2) Thus, witnesses are important players in the judicial system, who help the judges in arriving
at correct factual findings. The instrument of evidence is the medium through which facts,
either disputed or required to be proved, are effectively conveyed to the courts. This evidence
in the form of documentary and oral is given by the witnesses. A witness may be a partisan or
interested witness, i.e., a witness who is in a near relation with the victim of crime or is
concerned with conviction of the accused person. Even his testimony is relevant, though,
stricter scrutiny is required while adjudging the credence of such a victim. However, apart from
these witnesses or the witnesses who may themselves be the victims, other witnesses may not
have any personal interest in the outcome of a case. They still help the judicial system. In the
words of Whittaker Chambers, a witness is “a man whose life and faith are so completely one
that when the challenge comes to step out and testify for his faith, he does so, disregarding all
risks, accepting all consequences 1.”

3) The importance of the witness, particularly in a criminal trial is highlighted in a book in the
following manner:
 "In search of truth, he plays that sacred role of the sun, which eliminates the
darkness of ignorance and illuminates the face of justice, encircled by devils of
humanity and compassion.

xxx xxx xxx The value of witnesses can‟t be denied, keeping in view the
dependency of the criminal proceedings on the testimonies and cooperation of
witnesses in all the stages of the proceedings, especially in those cases where the
prosecution has to establish the guilt with absolute certainty via oral
cross-examination of witnesses in hearings open to the world at large. In such
cases, the testimony of a witness, even if not as an eye witness, may prove to be
crucial in determining the circumstances in which the crime might have been
committed...”2 Notwithstanding the same, the conditions of witnesses in Indian
Legal System can be termed as „pathetic‟. There are many threats faced by the
witnesses at various stages of an investigation and then during the trial of a case.
Apart from facing 1 Whittaker Chambers, WITNESS QUOTES (January 7, 2014,
10.30 am), http://www.brainyquote.com/quotes/keywords/witness.

2 Witness Protection in Criminal Trial in India by Girish Abhyankar & Asawari Abhyankar life
threatening intimidation to himself and to his relatives, he may have to face the trauma of
attending the court regularly. Because of the lack of Witness Protection Programme in India
and the treatment that is meted out to them, there is a tendency of reluctance in coming
forward and making statement during the investigation and/or testify in courts. These
witnesses neither have any legal remedy nor do they get suitably treated. The present legal
system takes witnesses completely for granted.

They are summoned to court regardless of their financial and personal conditions. Many times
they are made to appear long after the incident of the alleged crime, which significantly
hampers their ability to recall necessary details at the time of actual crime. They are not even
suitably remunerated for the loss of time and the expenditure towards conveyance etc.

4) In Swaran Singh vs. State of Punjab, (2000) 5 SCC 68 this Court speaking through Wadhwa, J.
expressed view on conditions of witnesses by stating that:

"The witnesses are harassed a lot. They come from distant places and see the
case is adjourned. They have to attend the court many times on their own. It has
become routine that case is adjourned till the witness is tired and will stop
coming to court. In this process lawyers also play an important role. Sometimes
witness is threatened, maimed, or even bribed. protection to the witnesses. By
adjourning the case the court also becomes a party to such miscarriage of justice.
The witness is not given respect by the court. They are pulled out of the court
room by the peon. After waiting for the whole day he sees the matter being
 adjourned. There is no proper place for him to sit and drink a glass of water.
When he appears, he is subjected to prolong stretched examinations and cross
examinations. For these reasons persons avoid becoming a witness and because
of this administration of justice are hampered. The witnesses are not paid money
within time. The High Courts must be vigilant in these matters and should avoid
harassment in these matters by subordinate staff. The witnesses should be paid
immediately irrespective of the fact whether he examines or the matter is
adjourned. The time has come now that all courts should be linked with each
other through computer. The Bar Council of India has to play important role in
this process to put the criminal justice system on track. Though the trial judge is
aware that witness is telling lie still he is not ready to file complaint against such
witness because he is required to sign the same. There is need to amend section
340(3)(b) of Cr.P.C.”

5) It hardly needs to be emphasised that one of the main reasons for witnesses to turn hostile is
that they are not accorded appropriate protection by the State. It is a harsh reality, particularly,
in those cases where the accused persons/criminals are tried for heinous offences, or where
the accused persons are influential persons or in a dominating position that they make
attempts to terrorize or intimidate the witnesses because of which these witnesses either avoid
coming to courts or refrain from deposing truthfully. This unfortunate situation prevails
because of the reason that the State has not undertaken any protective measure to ensure
the safety of these witnesses, commonly known as „witness protection‟.

6) Over the last many years criminal justice system in this country has been witness to
traumatic experience where witnesses turn hostile. This has been happening very frequently.
There may be many causes for this sordid phenomena.

7) In Ramesh and Others vs. State of Haryana,(2017) 1 SCC 529 this Court had indicated some
of the reasons which make witnesses turn hostile, as can be discerned from the following
discussion.

"40. In some of the judgments in past few years, this Court has commented upon
such peculiar behaviour of witnesses turning hostile and we would like to quote
from few such judgments.

In Krishna Mochi v. State of Bihar, (2002) 6 SCC 81 : 2002 SCC (Cri) 1220] , this Court
observed as under:
“31. It is a matter of common experience that in recent times there has been a sharp decline of
ethical values in public life even in developed countries much less developing one, like ours,
where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to
depose or their evidence is not found to be credible by courts for manifold reasons. One of the
reasons may be that they do not have courage to depose against an accused because of threats
to their life, more so when the offenders are habitual criminals or high-ups in the Government
or close to powers, which may be political, economic or other powers including muscle power.”

Likewise, in Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374 : (2006) 2 SCC
(Cri) 8] , this Court highlighted the problem with the following observations: (SCC pp. 396-98,
paras 40-41)

“40. “Witnesses” as Bentham said: “are the eyes and ears of justice”. Hence, the importance
and primacy of the quality of trial process. If the witness himself is incapacitated from acting as
eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a
fair trial. The incapacitation may be due to several factors, like the witness being not in a
position for reasons beyond control to speak the truth in the court or due to negligence or
ignorance or some corrupt collusion. Time has become ripe to act on account of numerous
experiences faced by the court on account of frequent turning of witnesses as hostile, either
due to threats, coercion, lures and monetary considerations at the instance of those in power,
their henchmen and hirelings, political clouts and patronage and innumerable other corrupt
practices ingeniously adopted to smother and stifle truth and realities coming out to surface.…
Broader public and societal interests require that the victims of the crime who are not
ordinarily parties to prosecution and the interests of the State represented by their prosecuting
agencies do not suffer.… There comes the need for protecting the witness. Time has come
when serious and undiluted thoughts are to be bestowed for protecting witnesses so that the
ultimate truth presented before the court and justice triumphs and that the trial is not reduced
to a mockery. …

41. The State has a definite role to play in protecting the witnesses, to start with at least in
sensitive cases involving those in power, who have political patronage and could wield muscle
and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As
a protector of its citizens it has to ensure that during a trial in court the witness could safely
depose the truth without any fear of being haunted by those against whom he had deposed.
Every State has a constitutional obligation and duty to protect the life and liberty of its citizens.
That is the fundamental requirement for observance of the rule of law. There cannot be any
deviation from this requirement because of any extraneous factors like caste, creed, religion,
political belief or ideology. Every State is supposed to know these fundamental requirements
and this needs no retaliation (sic repetition). We can only say this with regard to the criticism
levelled against the State of Gujarat. Some legislative enactments like the Terrorist and
Disruptive Activities (Prevention) Act, 1987 (in short “the TADA Act”) have taken note of the
reluctance shown by witnesses to depose against people with muscle power, money power or
political power which has become the order of the day. If ultimately truth is to be arrived at,
the eyes and ears of justice have to be protected so that the interests of justice do not get
incapacitated in the sense of making the proceedings before the courts mere mock trials as are
usually seen in movies.” "

Likewise, in Sakshi v. Union of India, (2004) 5 SCC 518 : 2004 SCC (Cri) 1645] , the menace of
witnesses turning hostile was again described in the following words: (SCC pp. 544-45, para 32)

“32. The mere sight of the accused may induce an element of extreme fear in the mind of the
victim or the witnesses or can put them in a state of shock. In such a situation he or she may
not be able to give full details of the incident which may result in miscarriage of justice.
Therefore, a screen or some such arrangement can be made where the victim or witnesses do
not have to undergo the trauma of seeing the body or the face of the accused. Often the
questions put in cross- examination are purposely designed to embarrass or confuse the victims
of rape and child abuse. The object is that out of the feeling of shame or embarrassment, the
victim may not speak out or give details of certain acts committed by the accused. It will,
therefore, be better if the questions to be put by the accused in cross-examination are given in
writing to the presiding officer of the court, who may put the same to the victim or witnesses in
a language which is not embarrassing. There can hardly be any objection to the other
suggestion given by the petitioner that whenever a child or victim of rape is required to give
testimony, sufficient breaks should be given as and when required. The provisions of
sub-section (2) of Section 327 CrPC should also apply in inquiry or trial of offences
under Sections 354 and 377 IPC.”

In State v. Sanjeev Nanda, (2012) 8 SCC 450 : (2012) 4 SCC (Civ) 487 : (2012) 3 SCC (Civ) 899] ,
the Court felt constrained in reiterating the growing disturbing trend: (SCC pp. 486-87, paras
99-101)

“99. Witness turning hostile is a major disturbing factor faced by the criminal courts in India.
Reasons are many for the witnesses turning hostile, but of late, we see, especially in high
profile cases, there is a regularity in the witnesses turning hostile, either due to monetary
consideration or by other tempting offers which undermine the entire criminal justice system
and people carry the impression that the mighty and powerful can always get away from the
clutches of law, thereby eroding people's faith in the system.

100. This Court in State of U.P. v. Ramesh Prasad Misra, (1996) 10 SCC 360 : 1996 SCC (Cri)
1278] held that it is equally settled law that the evidence of a hostile witness could not be
totally rejected, if spoken in favour of the prosecution or the accused, but it can be subjected to
closest scrutiny and that portion of the evidence which is consistent with the case of the
prosecution or defence may be accepted. In K. Anbazhagan v. Supt. of Police, (2004) 3 SCC 767 :
2004 SCC (Cri) 882] , this Court held that if a court finds that in the process the credit of the
witness has not been completely shaken, he may after reading and considering the evidence of
the witness as a whole, with due caution, accept, in the light of the evidence on the record that
part of his testimony which it finds to be creditworthy and act upon it. This is exactly what was
done in the instant case by both the trial court and the High Court and they found the accused
guilty.

101. We cannot, however, close our eyes to the disturbing fact in the instant case where even
the injured witness, who was present on the spot, turned hostile. This Court in Manu Sharma v.
State (NCT of Delhi), (2010) 6 SCC 1 : (2010) 2 SCC (Cri) 1385] and inZahira Habibullah Sheikh (5)
v. State of Gujarat, (2006) 3 SCC 374 : (2006) 2 SCC (Cri) 8] had highlighted the glaring defects
in the system like non-recording of the statements correctly by the police and the retraction of
the statements by the prosecution witness due to intimidation, inducement and other
methods of manipulation. Courts, however, cannot shut their eyes to the reality. If a witness
becomes hostile to subvert the judicial process, the court shall not stand as a mute spectator
and every effort should be made to bring home the truth. Criminal judicial system cannot be
overturned by those gullible witnesses who act under pressure, inducement or intimidation.
Further, Section 193 IPC imposes punishment for giving false evidence but is seldom invoked.”

44. On the analysis of various cases, the following reasons can be discerned which make
witnesses retracting their statements before the court and turning hostile:

(i) Threat/Intimidation.

(ii) Inducement by various means.

(iii) Use of muscle and money power by the accused.

(iv) Use of stock witnesses.

(v) Protracted trials.

(vi) Hassles faced by the witnesses during investigation and trial.

(vii) Non-existence of any clear-cut legislation to check hostility of witness.

45. Threat and intimidation has been one of the major causes for the hostility of witnesses.
Bentham said: “witnesses are the eyes and ears of justice”. When the witnesses are not able to
depose correctly in the court of law, it results in low rate of conviction and many times even
hardened criminals escape the conviction. It shakes public confidence in the criminal justice
delivery system. It is for this reason there has been a lot of discussion on witness protection and
from various quarters demand is made for the State to play a definite role in coming out with
witness protection programme, at least in sensitive cases involving those in power, who have
political patronage and could wield muscle and money power, to avert trial getting tainted and
derailed and truth becoming a casualty. A stern and emphatic message to this effect was given
in Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374 : (2006) 2 SCC (Cri) 8] as
well.

46. Justifying the measures to be taken for witness protection to enable the witnesses to
depose truthfully and without fear, Justice Malimath Committee Report on Reforms of Criminal
Justice System, 2003 has remarked as under:

“11.3. Another major problem is about safety of witnesses and their family members who face
danger at different stages. They are often threatened and the seriousness of the threat
depends upon the type of the case and the background of the accused and his family. Many
times crucial witnesses are threatened or injured prior to their testifying in the court. If the
witness is still not amenable he may even be murdered. In such situations the witness will not
come forward to give evidence unless he is assured of protection or is guaranteed anonymity of
some form of physical disguise. … Time has come for a comprehensive law being enacted for
protection of the witness and members of his family.”

47. Almost to similar effect are the observations of the Law Commission of India in its 198th
Report [ Report on “witness identity protection and witness protection programmes”.] , as can
be seen from the following discussion therein:

“The reason is not far to seek. In the case of victims of terrorism and sexual offences against
women and juveniles, we are dealing with a section of society consisting of very vulnerable
people, be they victims or witnesses. The victims and witnesses are under fear of or danger to
their lives or lives of their relations or to their property. It is obvious that in the case of serious
offences under the Indian Penal Code, 1860 and other special enactments, some of which we
have referred to above, there are bound to be absolutely similar situations for victims and
witnesses. While in the case of certain offences under special statutes such fear or danger to
victims and witnesses may be more common and pronounced, in the case of victims and
witnesses involved or concerned with some serious offences, fear may be no less important.
Obviously, if the trial in the case of special offences is to be fair both to the accused as well as
to the victims/witnesses, then there is no reason as to why it should not be equally fair in the
case of other general offences of serious nature falling under the Indian Penal Code, 1860. It is
the fear or danger or rather the likelihood thereof that is common to both cases. That is why
several general statutes in other countries provide for victim and witness protection.”
8) All this has created problems of low convictions in India. This has serious repercussions on
the criminal justice system itself.

Criminal justice is closely associated with human rights.

Whereas, on the one hand, it is to be ensured that no innocent person is convicted and thereby
deprived of his liberty, it is of equal importance to ensure, on the other hand, that victims of
crime get justice by punishing the offender. In this whole process, protection of witnesses
assumes significance to enable them to depose fearlessly and truthfully. That would also ensure
fair trial as well, which is another concomitant of the rule of law.

9) Since this case relates to the issue of protection of witnesses, we are eschewing any further
discussion on other miseries faced by the witnesses, though we emphasise the need for
addressing other problems as well, at appropriate level, if the criminal justice system in this
country is to succeed. Adverting to the importance of witness protection, we may mention that
it has been highlighted and emphasised by the courts in India, including this Court, time and
again. Issues of identity protection of identity of witnesses and witness protection programme
have been raised in number of judgments like NHRC vs. State of Gujarat,2003 (9) SCALE
329;People’s Union for Civil Liberties (PUCL) vs. Union of India ,2003 10 SCALE 967; Zahira vs.
State of Gujarat,(2004) 4 SCC 158; Sakshi vs. Union of India, (2004) 5 SCC 518 and ,2006 (3)
SCALE 967

10) In People‟s Union for Civil Liberties, wherein constitutionality some of the provisions of
the Prevention of Terrorism Act (POTA), 2002, were challenged, the Court carefully
analyzed Section 30 of the Act, which had mentioned about the protection of witnesses. This
provision provides for the proceedings to be held in camera in order to keep the identity of
witness confidential. The Court felt the reality that very often witnesses do not come forward
to testify before court in serious crimes. Witnesses are not ready to give evidence mainly
because their lives might be in danger. In the court‟s view, Section 30 of the Act maintains a
balance between the rights of a witness, the rights of an accused and the interest of the public.
However, secrecy of the witness is an exception and not a rule under this section.

11) The protection of a child witness, who may also be a victim, becomes all the more
important. In Sakshi vs. Union of India, the Court stressed that there is a dire need to come up
with a legislation for the protection of witnesses. The Court also had issued certain guidelines
on the procedure of taking of evidence from a child witness. The Court also pointed out the
need for special protection to a victim of sexual abuse at the time of recording her statement in
court. The petitioner in that case had given certain suggestions for effectively dealing with the
special provisions for testimony in child sexual abuse cases, which were as follows:
a) The judges shall allow the use of a videotaped interview of the testimony of the child in the
presence of a child-support person.

b) A child could be permitted to testify through closed circuit television or from behind a screen
to acquire an honest and frank account of the acts complained of without any fear.

c) Only the judge should be allowed to cross-examine a minor on the basis of the questions
given by the defence in writing after the examination of the minor.

d) During the testimony of the child, sufficient interval should be provided as and when she
requires it.

12) In some other judgments, this Court gave some more guidelines, in the following manner:

a) Sections 354 and 377 of the Indian Penal Code should be tried and inquired on the same
principles mentioned under sub-

section (2) of Section 327 Cr.P.C.

b) While holding the trial of rape or child sex abuse, some sort of arrangements like a screen or
something like it may be used so as to make sure that victim or witnesses (who are equally
vulnerable and need protection like the victim) do not confront the accused;

c) Questions raised during the cross-examination by the counsel of the accused that are directly
related to and be reminiscent to the victim or the witnesses of the incident should be written
down and given to the presiding officer of the court in advance. The presiding officer must put
forth those questions to the victim or witness in simple and clear language and as far as
possible without making her uncomfortable;

13) It hardly needs to be emphasised that failure to hear material witness is denial of fair trial.
The practice, however, to give protection to the witnesses is based on ad hocism, i.e., on
case to case basis. The Courts have also, in the process, adopted different means to ensure
witness protection, which can be stated in brief detail:

(a) Publication of evidence of the witness only during the course of trial and not after [Naresh
Shridhar Mirajkar and Others vs. State of Maharashtra and Another; [1966 (3) SCR 744]

(b) Re-trial allowed due to apprehension and threat to the life of witness [Sunil Kumar Pal vs.
Phota Sheikh and Other; AIR 1984 SC 1591]

(c) Necessity of anonymity for victims in cases of rape [Delhi Domestic Working
Women’s Forum vs. Union of India; (1995) 1 SCC 14)]
(d) Discouraging the practice of obtaining adjournments in cases when witness is present and
accused is absent. [State of U.P. vs. Shambhu Nath Singh; (2001) 4 SCC 667]

(e) Making threatening of witnesses as a ground for cancellation of bail [Ram Govind Upadhyay
v. Sudarshan Singh; II (2002) SLT 587]

(f) Cross-examination by video conferencing — This is one of the innovative methods devised,
which is specifically helpful to the victims of sexual crimes, particularly, child witnesses who
are victims of crime as well.

14) In the instant case itself the petitioners have approached this Court with the allegations
that in the trials that are going on against Asaram, who is charged with the offence of
committing rapes in numerous cases, the witnesses have been frightened with serious
consequences in case they depose against Asaram.

It is alleged that as many as 10 witnesses have already been attacked and three witnesses have
been killed.

15) There are four petitioners in this petition. These petitioners include a witness, father of a
murdered witness, father of the child rape victim and a journalist who escaped a murder
attempt by goons of godman Asaram and his son Naryana Sai and still faces death threats by a
jailed sharpshooter of Asaram and Narayan Sai. It is stated that Petitioner No. 1 Mahender
Chawla miraculously survived a murder attempt on his life for daring to testify against so called
godman, Asaram Bapu and his son Narayan Sai in horrifying cases of rape of a child and two
sisters.

Petitioner no. 1 also witnessed Narayan Sai doing Tantrik Practice on a dead body of a child in
an Asaram in Madhya Pradesh, in which till date there has not been any investigation due to
the influence of Asaram. Petitioner no. 2 Naresh Gupta is the father of a murdered witness,
named, Akhil Gupta. Akhil was killed for daring to be a witness against Asaram. Petitioner no. 3
Karamvir Singh is the father of a child, who was raped by Asaram. Petitioner no. 3‟s son Somvir
was threatened by 2 attackers despite having State police security. The attackers were
apprehended and released on bail. Shockingly the same attacker, named Narayan Pandey, later
killed a rape-case prosecution witness Kripal Singh. The child rape victim‟s family has been
attacked, threatened and lives in constant fear. It is also alleged that despite being threatened,
the Uttar Pradesh Police shockingly withdrew half of their security. Petitioner no. 4, Narendra
Yadav is a journalist who survived a murder attempt on his life because he dared to write
articles to the dislike of Asaram Bapu and Narayan Sai. He now lives in constant fear of being
killed as the Uttar Pradesh Police has given him a solitary security guard for just eight hours a
day, leaving him to fend for himself through the remaining 16 hours. It is also averred that the
sharp shooter of Asaram, Narayan Pandey, who is in jail for murdering a witness Kripal Singh,
writes threatening letters to him from inside the jail.

16) The petitioners have prayed for a court monitored SIT or a CBI probe. It is stated by the
petitioners that the prevailing feeling of fear amongst witnesses in the country seriously impairs
the right of the people of this country to live in a free society governed by rule of law. The right
to testify in courts in a free and fair manner without any pressure and threat whatsoever is
under serious attack today. If one is unable to testify in courts due to threats or other pressures,
then it is a clear violation of Article 21 of the Constitution. The right to life guaranteed to the
people of this country also includes in its fold the right to live in a society, which is free from
crime and fear and right of witnesses to testify in courts without fear or pressure.

17) The petitioners had initially impleaded Union of India as Respondent No. 1 and States of
Haryana, Uttar Pradesh, Rajasthan, Gujarat and Madhya Pradesh as Respondent Nos. 2 to 6.

18) Appreciating the importance and seriousness of the matter, this Court issued show cause
notices in the petition on November 18, 2016. After the service of the notice when the matter
came up for hearing on March 24, 2017, this Court also directed the States of Uttar Pradesh and
Haryana to ensure full and proper protection to the petitioners by providing adequate security.

19) When the matter was again listed on August 28, 2017, Mr. K.K.Venugopal, learned Attorney
General appeared on behalf of the Union of India, along with Ms. Pinky Anand, Additional
Solicitor General. It was pointed out that since this Court was primarily dealing with the issue
pertaining to witness protection programme, it would be appropriate that other States are also
impleaded inasmuch as the issue had PAN India significant and witness protection programme
should be available in all the States. The petitioners were, accordingly, directed to implead
other States as well and they be served with the notice of this petition. This is how the coverage
of the petition has been extended to the entire country, encompassing all the States and Union
Territories.

20) The petition was amended and all the States and Union Territories have been served and
are represented through their respective counsel. When the matter was thereafter taken up for
hearing on November 17, 2017 all the respondents were called upon to file their responses
indicating as to what steps could be taken to have the witness protection programme in place.

21) Mr. Venugopal, learned Attorney General for India was also requested to give suggestions
in the form of a draft scheme. It is heartening to note that Union of India did not take this
petition as adversarial and understood the necessity of having such a scheme in the larger
public interest. With this sensitivity in mind, Ministry of Home Affairs have prepared a draft
witness protection scheme, 2018 and placed the same on record of this case. This was noted in
the orders dated April 13, 2018 and the State Governments as well as Union Territories, who
had already been supplied with the copy of the draft scheme by the Ministry itself, were asked
to furnish their comments by May 31, 2018 to the Ministry of Home Affairs. The Union
Government was impressed upon to finalise the scheme after receiving the
comments/suggestions from the various Governments. Order dated April 13, 2018,
incorporating the aforesaid aspects, is reproduced below:

"We are informed that the Ministry of Home Affairs has prepared a draft Witness
Protection Scheme 2018. A copy of the said draft scheme is handed over to us in
the court today. Vide letter dated 22nd March, 2018, a copy of the said scheme is
also provided to all the State Governments and the Union Territories
Administration requesting them to furnish their comments by 9th April, 2018.
Thereafter, again by reminder dated 11th April, 2018 all the State Governments
and Union Territories were asked to furnish their comments by 31st May, 2018.

We expect all the State Governments as well as the Union Territories to furnish their comments
by the aforesaid stipulated date of 31st May, 2018 to the Ministry of Home Affairs. After
receiving the comments/suggestions the draft Witness Protection Scheme 2018 shall be
finalized by the Government, Ministry of Home Affairs before the next date.

List the matter in the second week of August, 2018.

Learned amicus curiae is also at liberty to furnish his suggestions.”

22) When the matter was taken up on November 19, 2018, the learned Attorney General
informed that after taking the inputs from various States and Union Territories, Central
Government had finalized the scheme and filed it in this Court on November 06, 2018
supported by its affidavit. He was also candid in his submission that this Court can pass
appropriate orders directing all the States to adopt that scheme and provide a witness
protection in accordance therewith till the time appropriate legislation in this behalf is passed.

23) We may place on record that as per the affidavit of the Central Government, the Witness
Protection Scheme, 2018 is based on the inputs received from 18 States/Union Territories, 5
States Legal Services Authorities and open sources including civil society, three High Courts as
well as from Police personnel. It is also stated that the scheme has been finalised in
consultation with National Legal Services Authority (NALSA). It is mentioned that the aim and
objective of the scheme is to ensure that the investigation, prosecution and trial of criminal
offences is not prejudiced because witnesses are intimidated or frightened to give evidence
without protection from violent or other criminal recrimination. It aims to promote law
enforcement by facilitating the protection of persons who are involved directly or indirectly in
providing assistance to criminal law enforcement agencies and overall administration of justice.
24) The affidavit further emphasises that the witnesses need to be given the confidence to
come forward to assist law enforcement and judicial authorities with full assurance of safety
and the present Scheme is aimed to identify the series of measures that may be adopted to
safeguard witnesses and their family members from intimidate and threats against their lives,
reputation and property

25) At this stage, we reproduce Witness Protection Scheme, 2018 as filed, in its entirety[See PDF of
the Witness Protection Scheme, 2018 uploaded on google classroom]

26) As is clear from its reading, the essential features of the Witness Protection Scheme, 2018
include identifying categories of threat perceptions, preparation of a “Threat Analysis Report” by
the Head of the Police, types of protection measures like ensuring that the witness and accused do
not come face to face during investigation etc. protection of identity, change of identity, relocation
of witness, witnesses to be apprised of the scheme, confidentiality and preservation of records,
recovery of expenses etc.

27) Since it is beneficial and benevolent scheme which is aimed at strengthening the criminal justice
system in this country, which shall in turn ensure not only access to justice but also advance the
cause the justice itself, all the States and Union Territories also accepted that suitable directions
can be passed by the court to enforce the said Scheme as a mandate of the court till
the enactment of a statute by the Legislatures.

28) It is clear from the aforesaid events that the Scheme is the outcome of the efforts put in by the
Central Government with due assistance not only from the State Governments as well as Union
Territories but other stakeholders including Police personnel, NALSA and State Legal Services
Authorities, High Courts and even civil society. There is no reason not to accede to the aforesaid
submission of the learned Attorney General and other respondents.

29) As pointed out above, in Sakshi‟s case, the Court had insisted about the need to come up with a
legislation for the protection of witnesses. It had even requested the Law Commission to examine
certain aspects, which resulted to 172nd review of rape laws by the Law Commission. However, the
Court specifically rejected the suggestion of the Law Commission regarding examination of
vulnerable witnesses in the absence of accused.

Having regard to the provisions of Section 273 of the Code of Criminal Procedure, which is based on
the tenets of principle of natural justice, that the witness must be examined in the presence of the
accused, such a principle cannot be sacrificed in trials and in inquiries regarding sexual offences. In
such a scenario examination of these witnesses through video conferencing provides the solution
which balances the interest of the accused as well as vulnerable witnesses.

30) Part II(7)(L) of the Witness Protection Scheme, 2018 provides for usage of specially designed
court room having special arrangements like live links, one way mirrors, and screens apart from
separate passages for witnesses and accused with the option to modify the image of the face of the
witness and to modify the audio feed of the witness‟s voice, so that he/she is not identified.

31) In consonance with the same, the Delhi Judiciary has already established four Vulnerable
Witness Deposition Complexes in the National Capital Territory, the latest one being at the Dwarka
District Court, which was established in February, 2017. This complex provides facilities like
separate witness room, separate accused room, play area for the child witnesses, pantry, separate
toilet and an exclusive & comfortable waiting area and is equipped with all facilities of audio-visual
exchange for a free interface between the presiding Judge, the witness and the accused without
witness facing the accused. The complex has a separate entry for vulnerable witnesses, so that they
do not come in direct contact with accused at any point of time. There are provisions for support
persons, pre-trial court visit and facilities for pick and drop of the witnesses from their residence. In
this way, all possible efforts have been made for providing comfortable environment to vulnerable
witnesses at this complex in order to enable them to give their best evidence in criminal
proceedings.

32) One of the main reasons behind establishing these Vulnerable Witness Deposition Complexes
was that a large percentage of acquittals in criminal cases is due to witnesses turning hostile and
giving false testimonies, mostly due to lack of protection for them and their families, especially in
case of women and children.

33) In fact, the Supreme Court too, in the State of Maharashtra v.Bandu @ Daulat (Order dt.
24.20.2017 in Crl. Appeal No. 1820/2017) has directed as follows:

"10. … there should be special centres for examination of vulnerable witnesses in

criminal cases in the interest of conducive environment in Court so as to encourage a
vulnerable victim to make a statement. Such centres ought to be set up with all
necessary safeguards. Our attention has been drawn to guidelines issued by the
Delhi High Court for recording evidence of vulnerable witnesses in criminal matters
and also the fact that four special centres have been set up at Delhi for the purpose.

*****

12. The directions of Delhi High Court and setting up of special centres for vulnerable witnesses as
noted above are consistent with the decision of this Court and supplement the same. We are of
the view that all High Courts can adopt such guidelines if the same have not yet been adopted with
such modifications as may be deemed necessary. Setting up of one center for vulnerable witnesses
may be perhaps required almost in every district in the country. All the High Courts may take
appropriate steps in this direction in due course in phases. At least two such centres in the
jurisdiction of each High Court may be set up within three months from today. Thereafter, more
such centres may be set up as per decision of the High Courts.”
34) One thing which emerges from the aforesaid discussion is that there is a paramount need to
have witness protection regime, in a statutory form, which all the stakeholders and all the players
in the criminal justice system concede. At the same time no such legislation has been brought
about. These are the considerations which had influenced this Court to have a holistic regime of
witness protection which should be considered as law under Article 141 of the Constitution till a
suitable law is framed.

35) We, accordingly, direct that :

(i) This Court has given its imprimatur to the Scheme preparedby respondent No.1 which is
approved hereby. It comes intoeffect forthwith.

(ii) The Union of India as well as States and Union Territories shall enforce the Witness Protection
Scheme, 2018 in letter and spirit.

(iii) It shall be the „law‟ under Article 141/142 of the Constitution, till the enactment of suitable
Parliamentary and/or State Legislations on the subject.

(iv) In line with the aforesaid provisions contained in the Scheme, in all the district courts in India,
vulnerable witness deposition complexes shall be set up by the States and Union Territories. This
should be achieved within a period of one year, i.e., by the end of the year 2019. The Central
Government should also support this endeavour of the States/Union Territories by helping them
financially and otherwise.

36) Writ petition stands disposed of in the aforesaid terms.

 Law Relating to Plea Bargaining

Relevant Provisions: Sections 265-A to 265-L (Chapter 21A - Inserted by Criminal Law Amendment Act, 2005)

The earlier view was that the offence should be tried and punished according to the guilt of the accused. If the court
thinks that leniency can be shown on the facts of the case, it may impose a lighter sentence.

It is interesting to note that the Supreme Court in Kisan Trimbak Kothula v. State of Maharashtra, (1977) 1 SCC 300,
disapproved the application of plea bargaining to criminal trials.

However, with the development of Penology and contemporary practices prevalent in the western world and further on the
recommendations of Law of Commission of India, the concept of plea bargaining was incorporated in the Criminal Procedure
Code, 1973 by Criminal Law Amendment Act, 2005. [See Sections 265-A to 265-L under Chapter 21A]
According to Section 265-A(1), the Concept of Plea Bargaining contained under Chapter 21A shall apply in respect of an
ACCUSED against whom:

(a) the report has been forwarded by the officer in charge of the police station under section 173 alleging therein that an
offence appears to have been committed by him other than an offence for which the punishment of death or of
imprisonment for life or of imprisonment for a term exceeding 7 years has been provided under the law for the time being
in force; or

(b) a Magistrate has taken cognizance of an offence on complaint, other than an offence for which the punishment of
death or of imprisonment for life or of imprisonment for a term exceeding 7 years, has been provided under the law for
the time being in force, and after examining complainant and witnesses under section 200, issued the process under
section 204,

The Concept of Plea Bargaining does not apply where such offence:
affects the socio-economic condition of the country or
has been committed against a woman, or a child below the age of 14 years.

Note: the Central Government shall, by notification, determine the offences under the law for the time being in force which
shall be the offences affecting the socio-economic condition of the country. [Section 265-A(2)]
Application for Plea Barganing and Process Thereafter:
A person accused of an offence may file an application for plea bargaining in the Court in which such offence is pending for
trial. [Section 265-B(1)]

Contents of Application for Plea Bargaining: According to section 265-B(2) the application under sub-section (1) shall
contain:
a brief description of the case relating to which the application is filed including the offence to which the case relates and

an affidavit sworn by the accused stating therein that he has voluntarily preferred, after understanding the nature and
extent of punishment provided under the law for the offence, the plea bargaining in his case and that he has not
previously been convicted by a Court in a case in which he had been charged with the same offence.

Procedure after Receiving the Appliction of Plea Bargaining: After receiving the application under sub-section (1),
the Court shall issue notice to the Public Prosecutor or the complainant of the case, as the case may be, and to the
accused to appear on the date fixed for the case. [Section 265-B(3)]
When the Public Prosecutor or the complainant of the case, as the case may be, and the accused appear on the date fixed
under sub-section (3), the Court shall examine the accused in camera, where the other party in the case shall not be
present, to satisfy itself that the accused has filed the application voluntarily.

Where the Court is satisfied that the application has been filed by the accused voluntarily, it shall provide time to the Public
Prosecutor or the complainant of the case, as the case may be, and the accused to work out a mutually satisfactory
disposition of the case which may include giving to the victim by the accused the compensation and other expenses during
the case and thereafter fix the date for further hearing of the case; [Clause (a) of Section 265-B(4)]
Note: Where the Court finds that the application has been filed involuntarily by the accused or he has previously been
convicted by a Court in a case in which he had been charged with the same offence, it shall proceed further in accordance
with the provisions of this Code from the stage such application has been filed under sub-section (1). [Clause (b) of Section
265-B(4)]

Procedure to Followed in Working out a Mutually Satisfactory Disposition [Section 265-C]

In working out a mutually satisfactory disposition under clause (a) of sub-section (4) of section 265B, the Court shall follow
the following procedure, namely:—
(a) in a case instituted on a police report, the Court shall issue notice to the Public Prosecutor, the police officer who has
investigated the case, the accused and the victim of the case to participate in the meeting to work out a satisfactory
disposition of the case:

Throughout such process of working out a satisfactory disposition of the case, it shall be the duty of the Court to ensure
that the entire process is completed voluntarily by the parties participating in the meeting; [Proviso 1]
The accused, if he so desires, may participate in such meeting with his pleader, if any, engaged in the case;[Provisio 2]

(b) in a case instituted otherwise than on police report, the Court shall issue notice to the accused and the victim of the case
to participate in a meeting to work out a satisfactory disposition of the case:

The duty of the Court to ensure, throughout such process of working out a satisfactory disposition of the case, that it is
completed voluntarily by the parties participating in the meeting; [Proviso 1]
If the victim of the case or the accused, as the case may be, so desires, he may participate in such meeting with his
pleader engaged in the case. [Provisio 2]
Report of the Mutually Satisfactory Disposition to be Submitted before the Court [Section 265-D]: Where in a meeting
under section 265C, a satisfactory disposition of the case has been worked out,
the Court shall prepare a report of such disposition which shall be signed by the presiding officer of the Court and all other
persons who participated in the meeting
Note: If no such disposition has been worked out, the Court shall record such observation and proceed further in accordance
with the provisions of this Code from the stage the application under sub-section (1) of section 265B has been filed in such
case.

Disposal of Case on the basis of Mutually Satisfactory Disposition [Section 265-E]: Where a satisfactory disposition of the
case has been worked out under section 265D, the Court shall dispose of the case in the following manner, namely:—
(a) the Court shall award the compensation to the victim in accordance with the disposition under section 265D and hear the
parties on the quantum of the punishment, releasing of the accused on probation of good conduct or after admonition under
section 360 or for dealing with the accused under the provisions of the Probation of Offenders Act, 1958 or any other law for
the time being in force and follow the procedure specified in the succeeding clauses for imposing the punishment on the
accused;
(b) after hearing the parties under clause (a), if the Court is of the view that section 360 or the provisions of the Probation of
Offenders Act, 1958 or any other law for the time being in force are attracted in the case of the accused, it may release the
accused on probation or provide the benefit of any such law, as the case may be;
(c) after hearing the parties under clause (b), if the Court finds that minimum punishment has been provided under the law
for the offence committed by the accused, it may sentence the accused to half of such minimum punishment;
(d) in case after hearing the parties under clause (b), the Court finds that the offence committed by the accused is not
covered under clause (b) or clause (c), then, it may sentence the accused to one-fourth of the punishment provided or
extendable, as the case may be, for such offence
Judgment: The Court shall deliver its judgment in terms of section 265E in the open Court and the same shall be signed by the
presiding officer of the Court. [Section 265-F]

Note: The judgment delivered by the Court under section 265G shall be final and no appeal (except the special leave petition
under article 136 and writ petition under articles 226 and 227 of the Constitution) shall lie in any Court against such
judgment.

Period of Detention undergone by the Accused to be Set Off against the Sentence of Imprisonment [Section 265-I]
The provisions of section 428 shall apply, for setting off the period of detention undergone by the accused against the
sentence of imprisonment imposed under this Chapter, in the same manner as they apply in respect of the imprisonment
under other provisions of this Code.

Some Important Points on Law Relating to Plea Bargaining:

(i) The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other
provisions of this Code and nothing in such other provisions shall be construed to constrain the meaning of any provision of
this Chapter. [Section 265-J]

(ii)Notwithstanding anything contained in any law for the time being in force, the statements or facts stated by an accused in
an application for plea bargaining filed under section 265B shall not be used for any other purpose except for the purpose of
this Chapter. [Section 265-L]
 154th Report of the Law Commission on The Criminal Procedure Code
CHAPTER XIII
PLEA BARGAINING

1. The arrears of criminal cases awaiting trial are assuming menacing proportions. Grievances have
been vented in public that the disposal of criminal trials in the courts takes considerable time and
that in many cases trials do not commence for as long a period as three to four years after the
accused was remitted to judicial custody. Large number of persons accused of criminal offences
have not been able to secure bail for one reason or the other and have to languish in jails as
undertrial prisoners for years. It is also a matter of common knowledge that majority of the cases
ultimately end in acquittal. The accused have to undergo mental torture and also have to spend
considerable amount by way of legal expenses and the public exchequer has to bear the resultant
economic burden. During the course of detention as undertrial prisoners the accused persons are
exposed to the influence of hardcore criminals. Quite apart from this the accused have to remain in
a state of uncertainty and are unable to settle down in life for a number of years awaiting the
completion of trial. Huge arrears of criminal cases are a common feature in almost all the criminal
courts. It is in this background the Law Commission felt that some remedial legislative measures to
reduce the delays in the disposal of criminal trials and appeals and also to alleviate the suffering of
undertrial prisoners. The Law Commission in its 142nd Report on Concessional Treatment of
Offenders who on their own initiative choose to plead guilty without any bargaining (1991)
considered the question of introduction of the concept of concessional treatment for those who
choose to plead guilty by way of plea-bargaining.

2. The justification for introducing, plea-bargaining cannot be expressed any better than what the
Twelfth Law Commission in its 142nd Report had already done as below:

(1) It is not just and fair that an accused who feels contrite and wants to make amends or an
accused who is honest and candid enough to plead guilty in the hope that the community will
enable him to pay the penalty for the crime with a degree of compassion and consideration should
be treated on par with an accused who claims to be tried at considerable time-cost and money-cost
to the community.
(2) It is desirable to infuse life in the reformative provisions embodied in section 360 of the Criminal
Procedure Code and in the Probation of Offenders Act which remain practically unutilized as of
now.
(3) It will help the accused who have to remain as undertrial prisoners awaiting the trial as also
other accused on whom the sword of Damocles of an impending trial remains hanging for years to
obtain speedy trial with attendant benefits such as-
(a) end of uncertainty.
(b) saving in litigation-cost.
(c) saving in anxiety-cost.
(d) being able to know his or her fate and to start of fresh life without fear of having to undergo a
possible prison sentence at a future date disrupting his life or career.
(e) saving avoidable visits to lawyer's office and to court on every date or adjournment.

(4) It will, without detriment to public interest, reduce the back-breaking burden of the court cases
which have already assumed menacing proportions.
(5) It will reduce congestion in jails.
(6) In the USA nearly 75% of the total convictions are secured as a result of plea-bargaining.
(7) Under the present system 75% to 90% of the criminal cases if not more, result in acquittals.

3. The concept of plea bargaining has not been recognized so far by the criminal jurisprudence of
India. However, plea bargaining is considered to be one of the alternatives to deal with the huge
arrears of criminal cases. Plea-bargaining in its most traditional and general sense refers to pre-trial
negotiations between the accused usually conducted by the counsel and the prosecution during
which the accused agrees to plead guilty in exchange for certain concessions by the prosecutor. It
has two facets. One is “charge bargaining" which refers to a promise by the prosecutor to reduce or
dismiss some of the charges brought against the accused in exchange for guilty plea. The second
one is "sentence bargaining" which refers to a promise by the prosecutor to recommend a specific
sentence or to refrain from making any sentence recommendation in exchange for a guilty plea.

4. The practice of plea bargaining in USA dates back to a century or more. The Prosecuting Agency
has a leading role in this process in that it has the discretion to reduce or dismiss some of the
charges against the accused and also to make recommendations to the Court about the sentences
in exchange for a guilty plea. The Supreme Court of USA in Brady v. United States [297 US 742-25
L.Ed. 2d 747] and Santobello v. New York [404 US 257 (1971); Hutto v. Ross [50 L.Ed. 2d 876];
Chaffin v. Stynchcombe [412 US 17 (1973)]; Blackledge v. Allison [52 L.Ed. 2d 136]; Weatherford v.
Bursey [429 US 545 (1977)] upheld the constitutional validity and the significant role the concept of
the plea bargaining plays in the disposal of criminal cases. It has approved this practice mainly on
the premise that the accused who are convicted on the basis of negotiated pleas of guilt would
ordinarily have been convicted had they been subjected to trial processes. One of the main
arguments advanced in favour of plea bargaining is that it helps the disposal of accumulated cases
and will expedite delivery of criminal justice.

5. The Supreme Court of India has examined the concept of plea bargaining in Murlidhar Meghraj
Loya v. State of Maharashtra [AIR 1976 SC 1929] and Kasambhai v. State of Gujarat [AIR 1980 SC
854]. The Court did not approve of the procedure of plea bargaining on the basis of informal
inducement. In Kasambhai's case the Court squarely observed that conviction based on the plea of
guilty entered by the accused as a result of plea bargaining could not be sustained and that it was
opposed to public policy to convict the accused by inducing him to confess to a plea of guilty "on
allurement being held out to him that if he enters a plea of guilty he will be let off very lightly".

6. The Law Commission in its 142nd Report, having considered the concept as is being practiced in
other countries, recommended that the scheme for concessional treatment to offenders who plead
guilty on their own volition in lieu of a promise to reduce the charge, to drop some of the charges
or getting lesser punishment be statutorily introduced by adding a Chapter in the Code of Criminal
Procedure. In making such a recommendation, however, the Law Commission considered the views
in favour of the concept as well as against it.

7. We have examined the cases decided in USA as well as by the Supreme Court of India in respect
of this concept and the 142nd Report of the Law Commission. [Law Commission, One Hundred
Forty Second Report, Chapter IX, paras 9.1-9.40 pp 24-34 (1991)] We are of the view that plea
bargaining can be made an essential component of administration of criminal justice provided it is
properly administered. For that purpose, certain guidelines and procedure have to be incorporated
in the Code of Criminal Procedure.
8. Having given our earnest consideration, we recommend that this concept may be made
applicable as an experimental measure, to offences which are liable for punishment with
imprisonment of less than seven years and/or fine including the offences covered by section 320 of
the Criminal Procedure Code. Plea bargaining can also be in respect of the nature and gravity of
offences and the quantum of punishment.

9. However, plea bargaining should not be available to habitual offenders, those who are accused
of socio-economic offences of a grave nature and offences against women and children.

9.1, The process of plea bargaining shall be set in motion after issue of process and when the
accused appears, either on a written application by the accused to the Court or suo motu by the
Court to ascertain the willingness of the accused. On ascertainment of the willingness of the
accused, the Court shall require him to make an application accordingly.

9.2. On the date so fixed for the hearing the court shall ascertain from the accused whether the
application was made by him voluntarily without any inducement or pressure from any quarters,
particularly from Public Prosecutors or Police. The Court shall ensure that neither the public
prosecutor nor police is present at the time of making the preliminary examination of the accused.

9.3 Once the Court is satisfied about the voluntary nature of the application, the Court shall fix a
date for hearing the public prosecutor and the aggrieved party and the accused applicant for final
hearing and passing of final order. If the Court finds that the application has been made under
duress or pressure, or that the applicant after realizing the consequences is not prepared to
proceed with the application, the Court may reject the application.

9.4 Such an application may be rejected either at the initial stage or after hearing the public
prosecutor and the aggrieved party. If the Court finds that, having regard to the gravity of the
offence or any other circumstances which may be brought to its notice by the public prosecutor or
the aggrieved party, the case is not a fit one for exercise of its powers of plea bargaining, the Court
may reject the application supported by reasons therefor.

9.5 The order passed by the Court on the application of the accused applicant shall be confidential
and will be given only to the accused if he so desires. The making of such application by the accused
shall not create any prejudice against the accused at the ensuing trial.

9.6 We are of the view that such a plea bargaining can be availed of by the accused in the
categories of offences mentioned above before the Court at any stage after the charge sheet is filed
by the investigating agency in police cases and in respect of private complaints at any stage after
the cognizance is taken. An order passed by the court on such a plea shall be final and no appeal
shall lie against such an order passed by the Court accepting the plea.

9.7 In cases where the provisions of Probation of Offenders Act, 1958 and/or section 360 of Cr.
P.C. are applicable to an accused applicant, he would be entitled to make an application that he is
desirous of pleading guilty along with a prayer for availing of the benefit under the legislative
provisions referred to above. In such cases, the Court after hearing the public prosecutor and the
aggrieved party, may pass appropriate order conferring the benefit of those legislative provisions.
The Court may be empowered to dispense with the necessity of calling a report from the probation
officer in appropriate cases. The provision regarding confidentiality of the making of application
and the consequence of rejection outlined in paragraph 9.5 will be applicable if the application is
rejected by the Court.

9.8 If an accused enters a plea of guilty in respect of an offence for which minimum sentence is
provided for the Court may instead of rejecting the application in limine, after hearing the public
prosecutor and the aggrieved party accept the plea of guilty and pass an order of conviction and
sentence to the tune of one/half of the minimum sentence provided.

9.9 The Court shall on such a plea of guilty being taken explain to the accused that it may record a
conviction for such an offence and it may after hearing the accused proceed to hear the Public
Prosecutor or the aggrieved person as the case may be:

(i) impose a suspended sentence and release him on probation;

(ii) order him to pay compensation to the aggrieved party; or
(iii) impose a sentence which commensurate with the plea bargaining, or
(iv) convict him for an offence of lesser gravity than that for which the accused has been charged if
permissible in the facts and circumstances of the case.

10. We recommend that a separate Chapter XXIA on Plea Bargaining be incorporated in the Code
of Criminal Procedure on the lines indicated above.
 Appellate Process under the Criminal Procedure Code
Relevant Provisions: Chapter XXIX - Appeals (Sections 372 to 394) of the CrPC

The criminal trials have serious consequences for an individual’s right to life and personal liberty and therefore, the
decisions of lower courts should be scrutinized to obviate any miscarriage of justice.

Every institution created by humans is fallible and so is true of courts. It is this realization that demands the criminal
procedure laws contain specific provisions on appeal against a judgment or order of the courts conducting trials.

CrPC, contains elaborate provisions on appeals against a judgment of conviction or acquittal and also against the sentence
passed by the criminal courts conducting trials.

Note: CrPC is not the only statute wherein one can find the provisions pertaining to criminal appeals. Constitution of India
and several special and local laws incorporate provisions pertaining to criminal appeals. For example: Section 21 of the
National Investigation Agency Act, 2008; Section 28 of the Unlawful Activities (Prevention) Act, 1967 (as amended up to
date).

There is no vested right to appeal unless specifically provided under the relevant statutory provision. In other words right
to appeal is a statutory right. Pertinent to quote sections 372 on this point which reads thus:

No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for
the time being in force:
Vcitims Right to Appeal: Proviso to section 372 coonfers upon victims of crime a right to appeal in certain circumstances. This
proviso reads:

Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or
convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an
appeal ordinarily lies against the order of conviction of such Court.

Note: This proviso shall govern the victims right to appeal to all the courts including the High Court and the Supreme Court.

No Appeal in Certain Circumstances against Conviction:

In view of Sections 375, 376 and 265G of CrPC there may be circumstances when no appeal shall lie against the order of
conviction. These circumstances may effectively be explained with the help of the provisions of Sections 375, 376 and 265G
of CrPC which reads as follows:

Section 375: No appeal in certain cases when accused pleads guilty — Notwithstanding anything contained in section 374,
where an accused person has pleaded guilty and has been convicted on such plea, there shall be no appeal,

(a) if the conviction is by a High Court; or

(b) if the conviction is by a Court of Session, Metropolitan Magistrate or Magistrate of the first or second class, except as to
the extent or legality of the sentence
Section 376: No appeal in petty cases — Notwithstanding anything contained in section 374, there shall be no appeal by a
convicted person in any of the following cases, namely:
(a) where a High Court passes only a sentence of imprisonment for a term not exceeding 6 months or of fine not exceeding
one thousand rupees, or of both such imprisonment and fine;

(b) where a Court of Session or a Metropolitan Magistrate passes only a sentence of imprisonment for a term not
exceeding 3 months or of fine not exceeding two hundred rupees, or of both such imprisonment and fine;

(c) where a Magistrate of the first class passes only a sentence of fine not exceeding one hundred rupees; or

(d) where, in a case tried summarily, a Magistrate empowered to act under section 260 passes only a sentence of fine not
exceeding two hundred rupees:
Provided that an appeal may be brought against such sentence if any other punishment is combined with it, but such
sentence shall not be appealable merely on the ground:
(i) that the person convicted is ordered to furnish security to keep the peace; or
(ii) that a direction for imprisonment in default of payment of fine is included in the sentence; or
(iii) that more than one sentence of fine is passed in the case, if the total amount of fine imposed does not exceed the
amount hereinbefore specified in respect of the case.

Section 265G: Finality of the judgment—The judgment delivered by the Court under section 265G ( on Plea Bargaining) shall
be final and no appeal (except the special leave petition under Article 136 and writ petition under articles 226 and 227 of
the Constitution) shall lie in any Court against such judgment.
 Appeals from Conviction: [Section 374 of the Code]

Appeal against Conviction to Supreme Court:

Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the
Supreme Court. [Sec. 374(1)]

Appeal against Conviction to High Court:

Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other
court in which a sentence of imprisonment for more than 7 years has been passed against him or against any other
person convicted at the same trial, may appeal to the High Court. [Sec. 374(2)]
Note: Independent of this right of appeal, CrPC contains an in-built mechanism for an automatic appeal on facts to the High Court under
Section 366 of the CrPC and this right of appeal is not dependent upon the option of the accused to prefer an appeal or not. This right of
appeal has to be compulsorily afforded to the accused by the Court of Sessions by making a reference under Section 366, CrPC [See Sections
366 to 371 of the Code]

Appeal against Conviction to Court of Session:

Save as otherwise provided in sub-section (2), any person,—
(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class, or of
the second class, or
(b) sentenced under section 325, or
(c) in respect of whom an order has been made or a sentence has been passed under section 360 by any Magistrate,
may appeal to the Court of Session. [Sec. 374(3)]
Note 1: An appeal to the Court of Session or Sessions Judge shall be heard by the Sessions Judge or by an Additional Sessions
Judge. [See Section 381(1) of the Code]

Note 2: An appeal against a conviction recorded by a Magistrate of the Second Class may be heard and decided by an
Assistant Sessions Judge or a Chief Judicial Magistrate. [See Proviso to Section 381(1) of the Code]
 Appeal by the State Government against (Inadequacy of) Sentence - Section 377

(1) Save as otherwise provided in sub-section (2), the State Government may, in any case of conviction on a trial held by any
Court other than a High Court,
direct the Public Prosecutor to present an appeal against the sentence on the ground of its inadequacy:

(a) to the Court of Session, if the sentence is passed by the Magistrate; and
(b) to the High Court, if the sentence is passed by any other Court.

(2) If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment,
constituted under the Delhi Special Police Establishment Act, 1946, or by any other agency empowered to make
investigation into an offence under any Central Act other than this Code,
the Central Government may also direct the Public Prosecutor to present an appeal against the sentence on the ground of
its inadequacy:

(a) to the Court of Session, if the sentence is passed by the Magistrate; and
(b) to the High Court, if the sentence is passed by any other Court

Note: When an appeal has been filed against the sentence on the ground of its inadequacy,
the Court of Session or, as the case may be, the High Court shall not enhance the sentence except
after giving to the accused a reasonable opportunity of showing cause against such enhancement and
while showing cause, the accused may plead for his acquittal or for the reduction of the sentence.
 Appeal in Case of Acquittal - Section 378

(1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5),

(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an
order of acquittal passed by a Magistrate
in respect of a cognizable and non-bailable offence;

(b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an
original or appellate order of acquittal passed by any Court other than a High Court
not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision.

(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police
Establishment constituted under the Delhi Special Police Establishment Act, 1946, or by any other agency empowered to
make investigation into an offence under any Central Act other than this Code, the Central Government may, subject to the
provisions of sub-section (3), also direct the Public Prosecutor to present an appeal:

(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable
offence;

(b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court
not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision
(3) No appeal to the High Court under sub-section (1) or sub-section (2) shall be entertained except with the leave of the
High Court.

(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made
to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal,
the complainant may present such an appeal to the High Court.

(5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be
entertained by the High Court after the expiry of
6 months, where the complainant is a public servant, and
60 days in every other case,
computed from the date of that order of acquittal.

(6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is
refused,
no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2).

Q. Can a complainant file an appeal against an order of acquittal by Magistrates Court/Court of Session in a case initiated
on complaint?
 Criminal Appeals to Supreme Court

Every decision of the High Court may not be appealable in the Supreme Court.
To restrict the flow of the criminal appeals to the Supreme Court and Article 134 (& Article 134A) of the Constitution
regulates criminal appeals to the Supreme Court in such a manner that only important criminal appeals reach the
Supreme Court.

Lest discuss provisions of Article 134 and 134A of the Constitution:

According to Article 134
(1) An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High
Court in the territory of India if the High Court—
(a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or

(b) has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted
the accused person and sentenced him to death; or

(c) certifies under Article 134A that the case is a fit one for appeal to the Supreme Court:

Provided that an appeal under sub-clause (c) shall lie subject to such provisions as may be made in that behalf under clause
(1) of article 145 and to such conditions as the High Court may establish or require.

(2) Parliament may by law confer on the Supreme Court any further powers to entertain and hear appeals from any
judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India subject to such conditions
and limitations as may be specified in such law.
Note: Exercising its powers granted under Article 134 (2), the Parliament has passed the Supreme Court (Enlargement of
Criminal Appellate Jurisdiction) Act, 1970, under which the Supreme Court may also hear criminal appeals
firstly, if the High Court has on appeal reversed an order of acquittal of an accused and sentenced him to imprisonment
for life or for a period of not less than 10 years; and

secondly, if the High Court has withdrawn for trial before itself any case from a subordinate court and has convicted the
accused and sentenced him to imprisonment for life or for a period of not less than 10 years.

According to Article 134A of the Constitution, every High Court, passing or making a judgment, ...... final order, or sentence,
referred to in ............ clause ( 1 ) of Article 134
(a) may, if it deems fit so to do, on its own motion; and
(b) shall, if an oral application is made, by or on behalf of the party aggrieved, immediately after the passing or making
of such judgment,.... final order or sentence, determine, as soon as may be after such passing or making, the question
whether a certificate of the nature referred to in sub clause (c) of clause ( 1 ) of Article 134, may be given in respect of that
case

Section 379 of CrPC also makes provisions for appeals to the Supreme Court from certain orders of the High Court [quite
similar to provisions of Article 134 of the Constitution and the provisions of the Supreme Court (Enlargement of Criminal
Appellate Jurisdiction) Act, 1970 . This section reads thus:

Where the High Court has, on appeal, reversed an order of acquittal of an accused person and convicted him and sentenced
him to death or to imprisonment for life or to imprisonment for a term of ten years or more, he may appeal to the Supreme
Court.
The resultant position of law from the conjoined reading of Section 2 of the Supreme Court (Enlargement of Criminal
Appellate Jurisdiction) Act, 1970 and Articles 132, 134(1), 134A of the Constitution and the CrPC [Sections 374 and 379] is
as follows: [See Chandra Mohan Tiwari v State of M.P., AIR 1992 SC 891, at pp. 897-898]:

(i) Under sub-clause (a) of Article134(1) an appeal lies as of right to the Supreme Court in a case where the High Court has
reversed an order of acquittal of an accused person and sentenced him to death.

(ii) Under sub-clause (b) of Article 134(1) an appeal lies as of right to the Supreme Court in a case where the High Court has
withdrawn the case for trial before itself from any Court subordinate to its authority and sentenced him to death.

(iii) Under Section 2(a) of the Act of 1970 an appeal lies as of right to the Supreme Court in a case where the High Court has
reversed an order of an acquittal of an accused person and sentenced him to imprisonment for life or imprisonment for a
period of not less than 10 years.

(iv) Under Section 2(b) of the Act of 1970 an appeal lies as of right to the Supreme Court in a case where the High Court has
withdrawn for trial before itself any case from any Court subordinate to its authority and has in such trial convicted the
accused person and sentenced him to imprisonment for life or imprisonment for a period of not less than 10 years.

(v) Under Section 379 of the CrPC, an appeal lies as of right to the Supreme Court in a case where the High Court has on
appeal reversed an order of acquittal of an appeal of an accused person and convicted and sentenced him either to death
or to imprisonment for life or imprisonment for a term of 10 years or more.
(vi) Additionally, any person convicted by the High Court in exercise of its extraordinary original criminal jurisdiction may
appeal to the Supreme Court under Section 374 of CrPC.

(vii) In cases not covered by Article 134(1) (a) and (b) or Section 2(a) and (b) of the Act of 1970 or by Section 379 & Section
374 of the CrPC an appeal will lie only either on a certificate granted by the High Court under Article 134(1) (c) or by grant of
special leave by the Supreme Court under Article136.

The right of appeal given under Section379 of the CrPC is in line with Article134 (1)(a) and (b) and Section 2(a) and (b) of
the Act of 1970.

Article 132 makes it possible for a criminal appeal to be made to the Supreme Court if the High Court certifies under
Article 134 A that the case involves a substantial question of law as to the interpretation of the Constitution.

Extra-ordinary Appellate Jurisdiction of the Supreme Court:

Under Article 136 of the Constitution, the Supreme Court also enjoys a plenary jurisdiction in matters of appeal.
However, Article 136 is not a regular forum of appeal at all. It is a residual provision which enables the Supreme Court to
interfere with the judgment or order of any court or tribunal in India in its discretion.

Article 136 does not confer a right of appeal upon any party but merely vests discretion in the Supreme Court to interfere
in exceptional cases.

Therefore, this overriding and exceptional power has been vested in the Supreme Court to be exercised sparingly and only in
furtherance of the cause of justice in the Supreme Court in exceptional cases only when special circumstances are shown to
exist.
 Difference betweeen Ordinary and Extra-ordinary Appellate Jurisdiction of the Supreme Court in Criminal Matters:

Unlike the ordinary appellate jurisdiction of the Supreme Court in criminal matters, the extra-ordinary jurisdiction is not
fettered with any limitations. Following are main differences between the two:

(i) Under Article 136, an appeal may lie even against an ‘interlocutory order’ whereas under Article 134, only final orders are
appealable.

(ii) Appeals against the orders from ‘any court’ can lie to the Supreme Court under Article 136, whereas, under Article 134
orders only from High Court can be appealed against.
Manner and Form of Appeal:
Every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader, and every such
petition shall (unless the Court to which it is presented otherwise directs) be accompanied by a copy of the judgment or
order appealed against. [Section 382]

Procedure when appellant in Jail: If the appellant is in jail, he may present his petition of appeal and the copies
accompanying the same to the officer in charge of the jail, who shall thereupon forward such petition and copies to the
proper Appellate Court.[Section 383]

Procedure of Hearing and Disposal of Appeals:

Summary Dismissal of Appeal [Section 384]
(1) If upon examining the petition of appeal and copy of the judgment received under section 382 or section 383, the
Appellate Court considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily:

Provided that:
(a) no appeal presented under section 382 shall be dismissed unless the appellant or his pleader has had a reasonable
opportunity of being heard in support of the same;
(b) no appeal presented under section 383 shall be dismissed except after giving the appellant a reasonable opportunity of
being heard in support of the same, unless the Appellate Court considers that the appeal is frivolous or that the production
of the accused in custody before the Court would involve such inconvenience as would be disproportionate in the
circumstances of the case;
(c) no appeal presented under section 383 shall be dismissed summarily until the period allowed for preferring such appeal
has expired.
(2) Before dismissing an appeal under this section, the Court may call for the record of the case.

(3) Where the Appellate Court dismissing an appeal under this section is a Court of Session or of the Chief Judicial Magistrate,
it shall record its reasons for doing so.

Procedure for Hearing Appeals not Dismissed Summarily [Section 385]

(1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such
appeal will be heard to be given—
(i) to the appellant or his pleader;
(ii) to such officer as the State Government may appoint in this behalf;
(iii) if the appeal is from a judgment of conviction in a case instituted upon complaint, to the complainant;
(iv) if the appeal is under section 377 or section 378, to the accused, and shall also furnish such officer, complainant and
accused with a copy of the grounds of appeal.

(2) The Appellate Court shall then send for the record of the case, if such record is not already available in that Court, and
hear the parties:
Provided that if the appeal is only as to the extent or the legality of the sentence, the Court may dispose of the appeal
without sending for the record.

(3) Where the only ground for appeal from a conviction is the alleged severity of the sentence, the appellant shall not,
except with the leave of the Court, urge or be heard in support of any other ground.
 Powers of the Appellate Court

We will discuss sections 386, 389, 390 & 391 of the Code on this point.

Section 386 - Powers of the Appellate Court:

After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears,
and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may:
if it considers that there is no sufficient ground for interfering, dismiss the appeal,
OR
(a) In an appeal from an order of acquittal may:
reverse such order and direct that further inquiry be made, or
that the accused be re-tried or committed for trial, as the case may be, or
find him guilty and pass sentence on him according to law

(b) in an appeal from a conviction may:

(i) reverse the finding and sentence and acquit or discharge the accused, or
order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial,
or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or (both) the nature and extent, of the sentence, but
not so as to enhance the same
(c) In an appeal for enhancement of sentence may:
(i) reverse the finding and sentence and acquit or discharge the accused or
order him to be re-tried by a Court competent to try the offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or, the nature and extent, of the sentence, so as to
enhance or reduce the same;

(d) in an appeal from any other order, alter or reverse such order;

(e) make any amendment or any consequential or incidental order that may be just or proper:

Note: The sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such
enhancement [Proviso to Section 386]

Section 391 - Appellate Court Power to take Further Evidence or Direct it to be Taken:
(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall
record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate or, when the Appellate
Court is a High Court, by a Court of Session or a Magistrate.

(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the
Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.

(3) The accused or his pleader shall have the right to be present when the additional evidence is taken
Suspension of Sentence Pending the Appeal; Release of Appellant on Bail [Section 389]
(1) Pending any appeal by a convicted person, the Appellate Court may,
for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be
suspended and, also,
if he is in confinement, that he be released on bail, or on his own bond

Note: the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence
punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity
to the Public Prosecutor for showing cause in writing against such release:

Note: In cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for
the cancellation of the bail.

(2) The power conferred by this section on a Appellate Court may be exercised also by the High Court in the case of an
appeal by a convicted person to a Court subordinate thereto.

Arrest of Accused in Appeal from Acquittal [Section 390]

When an appeal is presented under section 378,

the High Court may issue a warrant directing that the accused be arrested and brought before it or any Subordinate
Court, and
the Court before which he is brought may commit him to prison pending the disposal of the appeal or admit him to bail.
 Inherent Powers of High Court

Relevant Provision: Section 482 of CrPC

Understanding the Concept of 'Inherent Powers' in Law:

The concept of inherent powers depends on a distinction between powers that are explicitly provided in the Constitution
or in statutes (like CrPC), and those that a courts, any constitutional functionary, or an individual officer of government;
possesses implicitly, whether owing to the nature of sovereignty or because of the permissive reading of the language of
the Constitution or the statutes

Inherent Powers are the “powers over and beyond those explicitly granted in the Constitution or reasonably to be
implied from the express grants.” [Black’s Law Dictionary]

Inherent Power are powers that must be deemed to exist in order for a particular responsibility to be carried out.”
[Webster’s New World Dictionary]

The concept of Inherent Powers in Law is based on the maxim quando lex aliquid alicui concedit, concedere videtur ed it
sine quo res ipsae esse non potest, which means when the law gives anything to anyone, it gives also all those things
without which the thing itself would be unavailable. [Section 482 of CrPC embodies this maxim]
Lets discuss Inherent Powers of High Court [Section 482] of CrPC: (corresponds to section 561-A of the old Cr.P.C. of 1898)
Section 482 of CrPC is a specific provision providing for the inherent powers of the High Court related to affairs covered
under Cr.P.C. only.
Therefore, this section cannot be invoked for purposes other than what Cr.P.C. covers.

Section 482 of CrPC reads thus:

Saving of inherent powers of High Court: Nothing in this Code shall be deemed to limit or affect the inherent powers of the
High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the
process of any Court or otherwise to secure the ends of justice.

Comment on Section 482:

The marginal note appended to section 482 says “Saving of Inherent powers of High Court”; which clearly suggests that
this provision is a saving clause meant to categorically stipulate that the provisions of Cr.P.C. are not in derogation to the
inherent powers of the High Court to do justice.

Section 482 Cr.P.C. envisages three conditions under which the inherent powers may be exercised by the High Court,
namely
(i) in order to give effect to an order under the code,
(ii) to prevent abuse of the process of the court; and
(iii) to otherwise secure the ends of justice.

Note: Section 482 has not given additional powers to the High Court, which it did not possess before the section was
inserted. It also gives no new powers. It only provides that the powers which the court already inherently possessed shall be
preserved.
The three conditions are not mutually exclusive rather the application of these conditions would necessarily have overlap. For
example:
Preventing the abuse of the process of the court cannot be distinguished as a category different from securing the ends of
justice; in fact preventing such abuse would be with a view to secure the ends of justice only.

Likewise to give effect to an order under the code also serves to secure the ends of justice.

Therefore, the ambit of “securing the ends of justice” is a very broad term, broader and inclusive of the first two conditions.

Note: It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent powers of
the court.

The Courts in India have consistently held that the ambit of the inherent powers of the High Court cannot caged, cabined or
confined to some pre-decided instances for its application and same should therefore, be flexible not curbing the powers in
any manner as contemplated by the Parliament.

But at the same time Courts have cautioned that the Inherent Powers of High Court under section 482 ought to be
exercised sparingly, cautiously and carefully, ex debito justitiae to do real and substantive justice for which only the court
exists.
In Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551, the Supreme Court held that the following principles would
govern the exercise of the inherent jurisdiction of a High Court given by section 482:

(a) The power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the
aggrieved party;
(b) It should be exercised very sparingly to prevent abuse of the process of any court or otherwise to secure the ends of
justice;
(c) It should not be exercised as against the express bar of the law engrafted in any other provision of the Code.
Differences between Writ Proceedings under Article 226/227 and Section 482:
Article 226 of the Constitution encapsulates wider powers to be exercised by the High Court than section 482 Cr.P.C.
Writ under Article 226 can be issued against the State in any circumstances, whereas, section 482 can be used only to
cases or procedures under the Code but not in other matters.

Likewise, Article 227 is a similar provision for power of superintendence over all courts by the High Court within the
territory over which it exercises jurisdiction. Under this article the power of superintendence is not only administrative but
judicial also. This article therefore, givers wide powers to the High Court to see that the processes of the courts below it
are not abused.
Note: Direction which can be issued under section 482 can also be issued by way of a writ petition under Article 226/227. In
numerous cases the High Court has taken the view that a writ proceeding is viable for any order without touching the
inherent
powers of the High Court.

Exercise of Inherent powers different from Appeal and Revision

Inherent jurisdiction of High Court is not part of the ordinary litigation process.
While exercising powers under section 482 the court does not function as a court of appeal or revision. Appeal and
revisions processes are creation of statutes and not contemplated to be the part of inherent powers of the court.
The High Court while exercising its inherent powers would not enter into the appreciation or re-appreciation of evidence
as it done if a case would reach the court by way of a statutory appeal.

Note: The orders passed by the High Court in its exercise of inherent powers are not appealable by way of a provision for
statutory appeal. Against the order of High Court the affected party can take up the matter to the Supreme Court by a special
In Raj Kapoor v. State [(1980) 1 SCC 43] the Court explained the width and amplitude of the inherent power of the High
Court under Section 482 vis-à-vis the revisional power under Section 397 as follows:

“.......nothing of the Code, not even Section 397, can affect the amplitude of the inherent power preserved in so many terms
by the language of Section 482. Even so, a general principle pervades this branch of law when a specific provision is made:
easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction
but that inherent power should not invade areas set apart for specific power under the same Code.”

In Madhu Limaye case Supreme Court has exhaustively and correctly discussed and delineated the law. While it is true that
Section 482 is pervasive it should not subvert legal interdicts written into the same Code, such, for instance, in Section
397(2). Apparent conflict may arise in some situations between the two provisions and a happy solution:

“In case the impugned order clearly brings about a situation which is an abuse of the process of the court or for the purpose
of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section
397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between.
The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a
criminal proceeding initiated illegally, vexatiously or as being without jurisdiction.”

In short, there is no total ban on the exercise of inherent power where abuse of the process of the court or other
extraordinary situation excites the court's jurisdiction. The limitation is self-restraint, nothing more. The policy of the law
is clear that interlocutory orders, pure and simple, should not be taken up to the High Court resulting in unnecessary
litigation and delay. At the other extreme, final orders are clearly capable of being considered in exercise of inherent
power, if glaring injustice stares the court in the face.
 Instances of Application of Section 482:
Although, the application of section 482 cannot be reduced to some pre-decided issues, yet keeping in mind the practice by
the High Courts in using this power the following areas could be highlighted as the main areas for the application of the
inherent powers of the High Court:
(i) Quashing of a Criminal Proceeding: The maximum cases involving the plea for the exercise of inherent powers are filed
with a view to get the criminal proceedings at any stage quashed. These include:
(a) Quashing of FIR;
(b) Quashing of complaint;
(c) Quashing of Charge-sheet;
Note: We have already discussed decision of the Supreme Court in State of Haryana v. Bhajan Lal, (1992) Supp (1) SCC 335;
in which the court laid down broad guidelines for the exercise of inherent powers with a view to quash criminal proceedings
under section 482 of Cr.P.C. and Article 226/227 of the Constitution.
Other relevant case laws on Quashing of Criminal Proceeding:
R. P. Kapoor v. State of Punjab, AIR 1960 SCC 866;
Chand Dhavan v. Jawaharlal, (1992) 3 SCC 317;
Pepsi Food v. Special Judicial Magistrate, (1998) 5 SCC 749;
Indian Oil Corpn. v. NEPC India Ltd., (2006) 6 SCC 736

Quashing of Charge: In Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 the Supreme Court examined the question as to
when inherent powers can be invoked by the High Court to quash the charges framed as per section 228 Cr.P.C. by the court
below. The Court held that the power of quashing criminal proceedings, particularly, the charge framed under section 228 should be
exercised very sparingly and with circumspection and that too in the rarest of rare cases. If the allegations are so patently absurd and
inherently improbable that no prudent person can ever reach such a conclusion and where basic ingredients of criminal offence are not
satisfied then the court may interfere
(ii) Quashing of Criminal Proceedings in Criminal Cases involving Non-Compoundable Offence on the Ground of
Compromise between the Parties:
We will discuss this instance of application of Section 482 in detail with the help of following case laws given in your case
material:
Gian Singh v. State of Punjab, (2012) 10 SCC 303 223.
State of M.P. v. Deepak, (2014) 10 SCC 285.
Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur. v. State of Gujarat, (2017) 9 SCC 641

(iii) Passing Direction to Register the Case

On many occasions, if the police failed to register the case, the complainant would approach the High Court under section
482 for directions to the State to register the case.
The Apex Court however, has expressed its unhappiness over this practice.[On this point we have already discussed the
decision of Supreme Court in Sakiri Vasu v. State of U.P., 2008 AIR SC 309.

(iv) Passing Direction for Reinvestigation:

(v) Awarding Cost: In Mary Angels v. State of Tamil Nadu, (1999) 5 SCC 209, the Supreme Court held that under section 482
High Courts are empowered to impose costs even if there is nothing in Cr.P.C. enabling the court to do so expressly.
Therefore, the Supreme Court held that the High Court was right in imposing costs upon persons who despite there being a
High Court order to frame charges against them filed a revision application in the High Court against the framing of charges
by the trial court in pursuance of the High Court’s order hiding the previous order of the High Court of framing of charges
against them.

(iv) Quashing of any other Order passed by the Courts Below within the scope and ambit of inherent powers of High Court
 Circumstances in which Inherent Powers of High Court NOT to be Used: [Not an exhaustive enumeration]

(i) Inherent Powers not to be Used as Measure of Appeal after Conviction

In Arun Shankar Shukla v. State of U.P., (1999) 6 SCC 146, the Supreme Court took very serious view of the fact that after
conviction and awaiting the order of sentence to be passed on the accused the High Court in a petition under section 482
stayed further proceedings and also stayed the non-bailable warrant issued against the accused by the trial court which was
issued by the trial court on account of the absence of the accused on the day of verdict in the court.

The Supreme Court declared the orders passed by the High Court illegal and expressed unhappiness that instead of ordering
the convict to be present at the court for further proceedings and ignoring that the accused even after sentencing will have
a right to appeal such an order was passed by the High Court under section 482.

(ii) No Inherent Power to Review its judgement under section 482

The Supreme Court in Hari Singh Mann v. Harbhajan Singh Bajwa, (2001) 1 SCC 169, held that there is no provision in
Cr.P.C. authorising the High Court to review its judgement with the aid of or under the cloak of section 482 of Cr.P.C.
In Simrikhia v. Dolley Mukherjee [(1990) 2 SCC 437] Supreme Court considered the scope of Section 482 of the Code in a case
where on dismissal of the petition under Section 482, a second petition under Section 482 of the Code was made. This Court
held as follows:

“.…If any consideration of the facts by way of review is not permissible under the Code and is expressly barred, it is not for the
court to exercise its inherent power to reconsider the matter and record a conflicting decision. If there had been change in the
circumstances of the case, it would be in order for the High Court to exercise its inherent powers in the prevailing circumstances
and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the court. Where there is no
such changed circumstances and the decision has to be arrived at on the facts that existed as on the date of the earlier order,
the exercise of the power to reconsider the same materials to arrive at different conclusion is in effect a review, which is
expressly barred under Section 362.”

Note: In State of U.P. v. Ram Ashrey, (2012) 12 SCC 219, the Supreme Court held that the finding of the High Court in its
interim order while the petition under section 482 was still pending before it, recording the innocence of the accused was
wholly unnecessary and without any justification. The Court made it clear that such a finding could not have been recorded at
the interim stage
 Reference and Revision
Relevant Provisions: Chapter XXX (Sections 395 to 405)

Reference to High Court [Section 395]

(1) Where any Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or
Regulation or of any provision contained in an Act, Ordinance or Regulation,
the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation
or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is Subordinate
or by the Supreme Court,
the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the decision of the
High Court.

(2) A Court of Session or a Metropolitan Magistrate may, if it or he thinks fit in any case pending before it or him to which
the provisions of sub-section (1) do not apply,
refer for the decision of the High Court any question of law arising in the hearing of such case.

(3) Any Court making a reference to the High Court under sub-section (1) or sub-section (2) may,
pending the decision of the High Court thereon, either commit the accused to jail or release him on bail to appear when
called upon.

Note: When a question has been so referred, the High Court shall pass such order thereon as it thinks fit, and shall cause a
copy of such order to be sent to the Court by which the reference was made,
which shall dispose of the case conformably to the said order. [Section 396]
 Revision

Calling for Records to Exercise Powers of Revision [Section 397]

(1) The High Court or any Sessions Judge may
call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local
jurisdiction
for the purpose of satisfying itself or himself; to the correctness, legality or propriety of any finding, sentence or order,
recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may,
when calling, for such record, direct that the execution of any sentence or order be suspended, and if the accused is in
confinement that he be released on bail or on his own bond pending the examination of the record.

Explanation: All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be
deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398.
(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in
any appeal, inquiry, trial or other proceeding.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge,
no further application by the same person shall be entertained by the other of them.

Object of Revisional Jurisdiction: To confer upon superior criminal courts a paternal or supervisory jurisdiction and to
empower the superior courts to pass suitable orders to address any defect, irregularity or illegality in any finding, sentence or
order passed by an inferior court.
Meaning of 'proceeding': 'Proceeding' is a very wide term and would include any judicial proceeding taken before any
inferior court even though it may not relate to the commission or trial of an offence. Therefore, the test to explain the scope
and ambit of this term used in section 397 is not the nature of the proceeding but the nature of the court in which the
proceeding is held.
Within the meaning of section 397, Session Judge is inferior to the High Court and both Executive and Judicial Magistrates
are inferior to the Sessions Court.

Generally, High Court and Session Judge exercise the revisional jurisdiction suo motto or at the instance of the
prosecution or the accused person and in some rare cases revisional powers may be exrcised on the motion of a third
party (niether prosecution and accused.

Q. What is interlocutory order?

Ans: An interlocutory order is one which is passed at some intermediate stage of a proceeding generally to advance the
cause of justice for the final determination of the rights between the parties. [Order which is purely temporary in nature] -
For example order of adjourning case to a future date, order of summoning witnesses etc.

Test whether an order is interlocutory or final in nature: Whether or not the order in question finally disposes of the rights
of the parties or leave them to be determined by the court in a final order.

Sub-section (2) of section 397 bans the exercise of revisional power in relation to any interlocutory order passed in
appeal, inquiry, trial or other proceeding.
Therefore, revisional jurisdiction is to be exercised only in respect of final orders and intermediate orders.
An intermediate order [quasi final order] fall in between the final and interlocutory order.
Example of Final Order: An order taking cognizance can be treated to be final and therefore it can be revised under Section
397 of the Code.

Q. Try to give more examples of final orders passed by criminal courts which can be revised under section 397.

Example of Intermediate Order: Order of framing of charge is neither interlocutory nor final and thereofore it can be termed
as intermediate and hence revisable.

Q. Try to give more examples of final orders passed by criminal courts which can be revised under section 397.

According to Supreme Court in Madhu Limaye v. State of Maharashtra, 91997) 4 SCC 591; it is neither advisable nor possible
to make a catalogue of orders to demonstrate which kind of orders would be merely, purely or simply interlocutory and which
kinds of orders would be final and then to prepare an exhaustive list of those types of orders which fall in between.
Sessions Judge's Powers of Revision [Section 399]

(1) In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any
of the powers which may be exercised by the High Court under sub-section (1) of section 401.

(2) Where any proceeding by way of revision is commenced before a Sessions Judge under sub-section (1), the provisions of
sub-sections (2), (3), (4) and (5) of section 401 shall, so far as may be, apply to such proceeding and references in the said
sub-sections to the High Court shall be construed as references to the Sessions Judge.

(3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the
Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of
such person shall be entertained by the High Court or any other Court.

Revisional Powers of Additional Sessons Judge [Section 400]

An Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under this Chapter in respect of
any case which may be transferred to him by or under any general or special order of the Sessions Judge.
High Court's Powers of Revision [Section 401]

(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its
knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386,
389, 390 and 391 or on a Court of Session by section 307, and, when the Judges composing the Court of Revision are equally
divided in opinion, the case shall be disposed of in the manner provided by section 392.

(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an
opportunity of being heard either personally or by pleader in his own defence.

(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.

Note: Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be
entertained at the instance of the party who could have appealed. [Sub-section (4) of Section 401]

(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and
the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it
is necessary in the interests of Justice so to do, the High Court may treat the application for revision as a petition of appeal
and deal with the same accordingly.
 Gian Singh v. State of Punjab
(2012) 10 SCC 303

R M LODHA, J.: When the special leave petition in Gian Singh v. State of Punjab [(2010) 15 SCC 118] came
up for hearing, a two-Judge Bench (Markandey Katju and Gyan Sudha Misra, JJ.) doubted the correctness
of the decisions of this Court in B.S. Joshi v. State of Haryana [(2003) 4 SCC 675], Nikhil Merchant v. CBI
[(2008) 9 SCC 677 : (2008) 3 SCC (Cri) 858] and Manoj Sharma v. State [(2008) 16 SCC 1 : (2010) 4 SCC (Cri)
145] and referred the matter to a larger Bench.

The reference order [(2010) 15 SCC 118] reads as follows: (SCC pp. 119-20, paras 1- 9)

1. Heard the learned counsel for the petitioner.

2. The petitioner has been convicted under Section 420 and Section 120-B IPC by the learned Magistrate.
He filed an appeal challenging his conviction before the learned Sessions Judge. While his appeal was
pending, he filed an application before the learned Sessions Judge for compounding the offence, which,
according to the learned counsel, was directed to be taken up along with the main appeal.

 Thereafter, the petitioner filed a petition under Section 482 CrPC for quashing of the FIR on the ground
of compounding the offence. That petition under Section 482 CrPC has been dismissed by the High
Court by its impugned order.
 Hence, this petition has been filed in this Court.

2. The learned counsel for the petitioner has relied on the three decisions of this Court, all by two-Judge
Benches. They are B.S. Joshi v. State of Haryana [(2003) 4 SCC 675] ; Nikhil Merchant v.CBI [(2008) 9 SCC
677] and Manoj Sharma v. State [(2008) 16 SCC 1 : (2010) 4 SCC (Cri) 145] . In these decisions, this Court
has indirectly permitted compounding of non-compoundable offences. One of us, Hon'ble Mr Justice
Markandey Katju, was a member to the last two decisions.

3. Section 320 CrPC mentions certain offences as compoundable, certain other offences as compoundable
with the permission of the court, and
 the other offences as non-compoundable.

4. Section 420 IPC, one of the counts on which the petitioner has been convicted, no doubt is a
compoundable offence with the permission of the court in view of Section 320 CrPC;
 but Section 120-B IPC, the other count on which the petitioner has been convicted, is a non-
compoundable offence. Section 120-B (criminal conspiracy) is a separate offence and since it is a non-
compoundable offence, we cannot permit it to be compounded.

5. The court cannot amend the statute and must maintain judicial restraint in this connection. The courts
should not try to take over the function of Parliament or the executive. It is the legislature alone which can
amend Section 320 CrPC.

6. We are of the opinion that the above three decisions require to be reconsidered as, in our opinion,
something which cannot be done directly cannot be done indirectly. In our, prima facie, opinion, non-
compoundable offences cannot be permitted to be compounded by the court, whether directly or indirectly.
Hence, the above three decisions do not appear to us to be correctly decided.

7. It is true that in the last two decisions, one of us, Hon'ble Mr Justice Markandey Katju, was a member
but a Judge should always be open to correct his mistakes. We feel that these decisions require
reconsideration and hence we direct that this matter be placed before a larger Bench to reconsider the
correctness of the aforesaid three decisions.
8. Let the papers of this case be placed before the Hon'ble Chief Justice of India for constituting a larger
Bench.”

This is how these matters have come up for consideration before us.

Two provisions of the Code of Criminal Procedure, 1973 which are vital for consideration of the issue
referred to the larger Bench are Sections 320 and 482.

Section 320 of the Code provides for compounding of certain offences punishable under the Penal Code,
1860 (for short “IPC”). It reads as follows:

320. Compounding of offences.—(1) The offences punishable under the sections of the Indian Penal Code
(45 of 1860) specified in the first two columns of the Table next following may be compounded by the
persons mentioned in the third column of that Table—
Table

Offence Section of the Indian Penal Code Applicable Person by whom Offence may be
Compounded

For the List of Refer Code Refer Code

Offences - Refer
Code

(2) The offences punishable under the sections of the Indian Penal Code (45 of 1860) specified in the first
two columns of the Table next following may, with the permission of the court before which any
prosecution for such offence is pending, be compounded by the persons mentioned in the third column of
that Table
Table

Offence Section of the Indian Penal Code Applicable Person by whom Offence may be
Compounded

For the List of Refer Code Refer Code

Offences - Refer
Code

(3) When an offence is compoundable under this section, the abetment of such offence or an attempt to
commit such offence (when such attempt is itself an offence) or where the accused is liable under Sections
34 or 149 of IPC may be compounded in like manner.

(3) (a) When the person who would otherwise be competent to compound an offence under this section is
under the age of 18 years or is an idiot or a lunatic,
any person competent to contract on his behalf may, with the permission of the court, compound such
offence.

(b) When the person who would otherwise be competent to compound an offence under this section is
dead, the legal representative, as defined in the Code of Civil Procedure, 1908 (5 of 1908), of such person
may, with the consent of the court, compound such offence.

(5) When the accused has been committed for trial or when he has been convicted and an appeal is
pending,
no composition for the offence shall be allowed without the leave of the court to which he is committed,
or, as the case may be, before which the appeal is to be heard.

(6) A High Court or Court of Session acting in the exercise of its powers of revision under Section 401 may
allow any person to compound any offence which such person is competent to compound under this
section.

(7) No offence shall be compounded if the accused is, by reason of a previous conviction, liable either to
enhanced punishment or to a punishment of a different kind for such offence.

(8) The composition of an offence under this section shall have the effect of an acquittal of the accused
with whom the offence has been compounded.

(9) No offence shall be compounded except as provided by this section.”

Section 482 saves the inherent power of the High Court and it reads as follows:
482. Saving of inherent powers of High Court:
“Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court:
 to make such orders as may be necessary to give effect to any order under this Code, or
 to prevent abuse of the process of any court or
 otherwise to secure the ends of justice.”

In B.S. Joshi case, the undisputed facts were these: the husband was one of the appellants while the wife
was Respondent 2 in the appeal before this Court. They were married on 21-7-1999 and were living
separately since 15-7-2000. An FIR was registered under Sections 498-A/323 and 406 IPC at the instance of
the wife on 2-1-2002.

 When the criminal case registered at the instance of the wife was pending, the wife filed an affidavit
that her disputes with the husband and the other members of his family had been finally settled and
she and her husband had agreed for mutual divorce.
 Based on the said affidavit, the matter was taken to the High Court by both the parties and they jointly
prayed for quashing the criminal proceedings launched against the husband and his family members
on the basis of the FIR registered at the wife's instance under Sections 498-A and 406 IPC.

The High Court dismissed the petition for quashing the FIR as in its view the offences under Sections 498-A
and 406 IPC were non-compoundable and the inherent powers under Section 482 of the Code could not be
invoked to by-pass Section 320 of the Code. It is from this order that the matter reached this Court.

 This (Supreme) Court held that the High Court in exercise of its inherent powers could quash the
criminal proceedings or the FIR or the complaint and Section 320 of the Code did not limit or affect
the powers under Section 482 of the Code.

In Nikhil Merchant Case, a company, M/s Neemuch Emballage Ltd., Mumbai was granted financial
assistance by Andhra Bank under various facilities. On account of default in repayment of loans, the Bank
filed a suit for recovery of the amount payable by the borrower Company. The Bank also filed a complaint
against the Company, its Managing Director and the officials of Andhra Bank for diverse offences, namely,
Section 120-B read with Sections 420, 467, 468, 471 IPC read with Sections 5(2) and 5(1)(d) of the
Prevention of Corruption Act, 1947 and Section 13(2) read with Section 13(1)(d) of the Prevention of
Corruption Act, 1988.
 The suit for recovery filed by the Bank against the Company and the Managing Director of the
Company was compromised. The suit was compromised upon the defendants agreeing to pay the
amounts due as per the schedule mentioned in the consent terms. Based on Clause 11 of the consent
terms, the Managing Director of the Company, the appellant who was Accused 3 in the charge-sheet
filed by CBI, made application for discharge from the criminal complaint.
 The said application was rejected by the Special Judge (CBI), Greater Bombay, which came to be
challenged before the Bombay High Court. The contention before the High Court was that since the
subject-matter of the dispute had been settled between the appellant and the Bank, it would be
unreasonable to continue with the criminal proceedings.
 The High Court rejected the application for discharge from the criminal cases. It is from this order that
the matter reached this Court by way of special leave.

Supreme Court having regard to the facts of the case and the earlier decision of this Court in B.S. Joshi , set
aside the order of the High Court and quashed the criminal proceedings by consideration of the matter
thus: (Nikhil Merchant case [(2008) 9 SCC 677]:

 Despite the ingredients and the factual content of an offence of cheating punishable under Section
420 IPC, the same has been made compoundable under sub-section (2) of Section 320 CrPC with the
leave of the court. Of course, forgery has not been included as one of the compoundable offences,
but it is in such cases that the principle enunciated in B.S. Joshi case becomes relevant.

 On an overall view of the facts as indicated hereinabove and keeping in mind the decision of this Court
in B.S. Joshi case and the compromise arrived at between the Company and the Bank as also Clause 11
of the consent terms filed in the suit filed by the Bank, we are satisfied that this is a fit case where
technicality should not be allowed to stand in the way in the quashing of the criminal proceedings,
since, in our view, the continuance of the same after the compromise arrived at between the parties
would be a futile exercise.”

In Manoj Sharma Case the Court was concerned with the question whether an FIR under Sections
420/468/471/34/120-B IPC can be quashed either under Section 482 of the Code or under Article 226 of
the Constitution when the accused and the complainant have compromised and settled the matter
between themselves.
 Altamas Kabir, J., who delivered the lead judgment referred to B.S. Joshi Case and the submission
made on behalf of the State that B.S. Joshi required a second look and held that the Court was not
inclined to accept the contention made on behalf of the State that the decision in B.S. Joshi required
reconsideration, at least not in the facts of the case. It was held that what was decided in B.S. Joshi
was the power and authority of the High Court to exercise jurisdiction under Section 482 of the Code or
under Article 226 of the Constitution to quash the offences which were not compoundable. The law
stated in B.S. Joshi simply indicated the powers of the High Court to quash any criminal proceeding or
first information report or complaint whether the offences were compoundable or not. Altamas Kabir, J.
further observed: (para 6)

“… The ultimate exercise of discretion under Section 482 CrPC or under Article 226 of the Constitution is
with the court which has to exercise such jurisdiction in the facts of each case. It has been explained that
the said power is in no way limited by the provisions of Section 320 CrPC.”

Markandey Katju, J. although concurred with the view of Altamas Kabir, J. that criminal proceedings in
that case deserved to be quashed but observed that the question may have to be decided in some
subsequent decision or decisions (preferably by a larger Bench) as to which non-compoundable cases can
be quashed under Section 482 of the Code or Article 226 of the Constitution on the basis that the parties
have entered into compromise. In paras 27 and 28 of the Report he held as under:
 There can be no doubt that a case under Section 302 IPC or other serious offences like those under
Sections 395, 307 or 304-B cannot be compounded and hence proceedings in those provisions cannot
be quashed by the High Court in exercise of its power under Section 482 CrPC or in writ jurisdiction
on the basis of compromise. However, in some other cases (like those akin to a civil nature), the
proceedings can be quashed by the High Court if the parties have come to an amicable settlement
even though the provisions are not compoundable. A judicial discretion has to be exercised on some
objective guiding principles and criteria, and not on the whims and fancies of individual Judges.
Discretion, after all, cannot be the Chancellor's foot.

 I am expressing this opinion because Shri B.B. Singh, learned counsel for the respondent has rightly
expressed his concern that the decision in B.S. Joshi case should not be understood to have meant
that Judges can quash any kind of criminal case merely because there has been a compromise
between the parties. After all, a crime is an offence against society, and not merely against a private
individual.”

Dr Abhishek Manu Singhvi, learned Senior Counsel for the petitioner in SLP (Crl.) No. 6324 of 2009
submitted
 that the inherent power of the High Court to quash a non-compoundable offence was not
circumscribed by any of the provisions of the Code, including Section 320. Section 482 is a declaration
of the inherent power pre-existing in the High Court and so long as the exercise of the inherent power
falls within the parameters of Section 482, it shall have an overriding effect over any of the provisions
of the Code.
 that in exercise of its inherent powers under Section 482, the High Court may permit compounding of
a non-compoundable offence provided that in doing so it satisfies the conditions mentioned therein.

Shri P.P. Rao, learned Senior Counsel for the petitioner in Special Leave Petition (Crl.) No. 5921 of 2009
submitted
 that Section 482 of the Code is the complete answer to the reference made to the larger Bench.
Section 320 did not limit or affect the inherent powers of the High Court. Notwithstanding Section
320, the High Court can exercise its inherent power, inter alia, to prevent abuse of the process of any
court or otherwise to secure the ends of justice.
 To secure the ends of justice is a wholesome and definite guideline. It requires formation of opinion by
the High Court on the basis of material on record as to whether the ends of justice would justify
quashing of a particular criminal complaint, FIR or a proceeding.

 that in cases of civil wrongs which also constitute criminal offences, the High Court may pass order
under Section 482 once both the parties jointly pray for dropping the criminal proceedings initiated by
one of them to put an end to the dispute and restore peace between the parties.

Mr V. Giri, learned Senior Counsel for the respondent (accused) in Special Leave Petition (Crl.) No. 6138
of 2006 submitted
 that the real question that needs to be considered by this Court in the reference is whether Section
320(9) of the Code creates a bar or limits or affects the inherent powers of the High Court under
Section 482 of the Code.
 that Section 320(9) does not create a bar or limit or affect the inherent powers of the High Court in the
matter of quashing any criminal proceedings.
 that on compromise between the parties, the High Court in exercise of powers under Section 482 can
quash the criminal proceedings, more so in the matters arising from matrimonial dispute, property
dispute, dispute between close relations, partners or business concerns which are predominantly of
civil, financial or commercial nature.
Mr P.P. Malhotra, learned Additional Solicitor General referred to the scheme of the Code. He submitted
 that the power under Section 482 of the Code cannot be invoked in the non-compoundable offences
since Section 320(9) expressly prohibits the compounding of such offences. Quashing of criminal
proceedings of the offences which are non-compoundable would negative the effect of the order of
framing charges or taking cognizance and therefore quashing would amount to taking away the order
of cognizance passed by the Magistrate.

 If power under Section 482 is exercised, in relation to non-compoundable offences, it will amount to
what is prohibited by law and such cases cannot be brought within the parameters “to secure the ends
of justice”.

Supreme Court on Section 482 of CrPC:

The view of the Privy Council in Khwaja Nazir Ahmed Case and another decision in Lala Jairam Das v. King
Emperor [(1944-45) 72 IA 120 : AIR 1945 PC 94] was expressly accepted by this Court in State of U.P. v.
Mohd. Naim [AIR 1964 SC 703] . The Court said:

“… It is now well settled that the section confers no new powers on the High Court. It merely safeguards all
existing inherent powers possessed by a High Court necessary (among other purposes) to secure the ends of
justice. The section provides that those powers which the court inherently possesses shall be preserved lest
it be considered that the only powers possessed by the court are those expressly conferred by the Code and
that no inherent powers had survived the passing of the Code….”

Careful analysis of all these judgments clearly reveals that the exercise of inherent powers would
entirely depend on the facts and circumstances of each case. The object of incorporating inherent
powers in the Code is to prevent abuse of the process of the court or to secure ends of justice.

Besides B.S. Joshi , Nikhil Merchant and Manoj Sharma , there are other decisions of this Court where the
scope of Section 320 vis-à-vis the inherent power of the High Court under Section 482 of the Code has
come up for consideration.

In Madan Mohan Abbot v. State of Punjab [(2008) 4 SCC 582] in the appeal before this Court which arose
from an order of the High Court refusing to quash the FIR against the appellant lodged under Sections
379, 406, 409, 418, 506/34 IPC on account of compromise entered into between the complainant and the
accused, the Court held as under:

 It is on the basis of this compromise that the application was filed in the High Court for quashing of
proceedings which has been dismissed by the impugned order. We notice from a reading of the FIR
and the other documents on record that the dispute was purely a personal one between two
contesting parties and that it arose out of extensive business dealings between them and that there
was absolutely no public policy involved in the nature of the allegations made against the accused. We
are, therefore, of the opinion that no useful purpose would be served in continuing with the
proceedings in the light of the compromise and also in the light of the fact that the complainant has on
11-1-2004 passed away and the possibility of a conviction being recorded has thus to be ruled out.

3. In Ishwar Singh v. State of M.P. [(2008) 15 SCC 667] the Court was concerned with a case where the
appellant-accused was convicted and sentenced by the Additional Sessions Judge for an offence punishable
under Section 307 IPC. The High Court dismissed the appeal from the judgment and conviction. In the
appeal, by special leave, the injured complainant was ordered to be joined as party as it was stated by the
counsel for the appellant that mutual compromise has been arrived at between the parties i.e. the accused
on the one hand and the complainant victim on the other hand during the pendency of the proceedings
before this Court. It was prayed on behalf of the appellant that the appeal be disposed of on the basis of
compromise between the parties. The Court observed as follows: (SCC p. 670)

Now, it cannot be gainsaid that an offence punishable under Section 307 IPC is not a compoundable
offence. Section 320 of the Code of Criminal Procedure, 1973 expressly states that no offence shall be
compounded if it is not compoundable under the Code. At the same time, however, while dealing with such
matters, this Court may take into account a relevant and important consideration about compromise
between the parties for the purpose of reduction of sentence.”

The Court also referred to the earlier decisions of this Court in Jetha Ram v. State of Rajasthan [(2006) 9
SCC 255] , Murugesan v. Ganapathy Velar [(2001) 10 SCC 504 : 2003 SCC (Cri) 1032] , Ishwarlal v. State of
M.P. [(2008) 15 SCC 671 : (2009) 3 SCC (Cri) 1156] and Mahesh Chand v. State of Rajasthan [1990 Supp
SCC 681 : 1991 SCC (Cri) 159] and noted as follows: (Ishwar Singh case [(2008) 15 SCC 667, p. 670)

“13. In Jetha Ram, Murugesan and Ishwarlal this Court, while taking into account the fact of compromise
between the parties, reduced sentence imposed on the appellant-accused to already undergone, though
the offences were not compoundable. But it was also stated that in Mahesh Chand such offence was
ordered to be compounded.” Then, in paras 14 and 15 the Court held as under: (Ishwar Singh case [(2008)
15 SCC 667 , p. 670)

15. In the instant case, the incident took place before more than fifteen years; the parties are residing in
one and the same village and they are also relatives. The appellant was about 20 years of age at the time of
commission of crime. It was his first offence. After conviction, the petitioner was taken into custody.
During the pendency of appeal before the High Court, he was enlarged on bail but, after the decision of the
High Court, he again surrendered and is in jail at present. Though he had applied for bail, the prayer was
not granted and he was not released on bail. Considering the totality of facts and circumstances, in our
opinion, the ends of justice would be met if the sentence of imprisonment awarded to the appellant
(Accused 1) is reduced to the period already undergone.”

In Shiji v. Radhika [(2011) 10 SCC 705] this Court considered the exercise of inherent power by the High
Court under Section 482 in a matter where the offence was not compoundable as the accused was already
involved in commission of the offences punishable under Sections 354 and 394 IPC. The High Court
rejected the prayer by holding that the offences with which the appellants were charged are not “personal
in nature” to justify quashing the criminal proceedings on the basis of a compromise arrived at between
the complainant and the appellants. This Court considered the earlier decisions of this Court, and held as
under: (SCC pp. 712-13)

 It is manifest that simply because an offence is not compoundable under Section 320 CrPC is by itself
no reason for the High Court to refuse exercise of its power under Section 482 CrPC. That power can in
our opinion be exercised in cases where there is no chance of recording a conviction against the
accused and the entire exercise of a trial is destined to be an exercise in futility.
 There is a subtle distinction between compounding of offences by the parties before the trial court or in
appeal on the one hand and the exercise of power by the High Court to quash the prosecution under
Section 482 CrPC on the other. While a court trying an accused or hearing an appeal against conviction,
may not be competent to permit compounding of an offence based on a settlement arrived at between
the parties in cases where the offences are not compoundable under Section 320, the High Court may
quash the prosecution even in cases where the offences with which the accused stand charged are non-
compoundable. The inherent powers of the High Court under Section 482 CrPC are not for that purpose
controlled by Section 320 CrPC.

 Coming to the case at hand, we are of the view that the incident in question had its genesis in a dispute
relating to the access to the two plots which are adjacent to each other. It was not a case of broad
 daylight robbery for gain. It was a case which has its origin in the civil dispute between the parties,
which dispute has, it appears, been resolved by them. That being so, continuance of the prosecution
where the complainant is not ready to support the allegations which are now described by her as
arising out of some ‘misunderstanding and misconception’ will be a futile exercise that will serve no
purpose. It is noteworthy that the two alleged eyewitnesses, who are closely related to the
complainant, are also no longer supportive of the prosecution version. The continuance of the
proceedings is thus nothing but an empty formality. Section 482 CrPC could, in such circumstances, be
justifiably invoked by the High Court to prevent abuse of the process of law and thereby preventing a
wasteful exercise by the courts below.”

In Ashok Sadarangani v. Union of India [(2012) 11 SCC 321] the issue under consideration was whether an
offence which was not compoundable under the provisions of the Code could be quashed. That was a case
where a criminal case was registered against the accused persons under Sections 120-B, 465, 467, 468 and
471 IPC. The allegation was that the accused secured the credit facilities by submitting forged property
documents as collaterals and utilised such facilities in a dishonest and fraudulent manner by opening
letters of credit in respect of foreign supplies of goods, without actually bringing any goods but inducing
the Bank to negotiate the letters of credit in favour of foreign suppliers and also by misusing the cash
credit facility. The Court considered the earlier decisions of this Court including B.S. Joshi , Nikhil
Merchant, Manoj Sharma , Shiji, and Sushil Suri [(2011) 5 SCC 708] and also referred to the order of
reference in one of the cases before us.

 Having carefully considered the facts and circumstances of the case, as also the law relating to the
continuance of criminal cases where the complainant and the accused had settled their differences
and had arrived at an amicable arrangement, we see no reason to differ with the views that had been
taken in Nikhil Merchant case or Manoj Sharma case or the several decisions that have come
thereafter. It is, however, no coincidence that the golden thread which runs through all the decisions
cited, indicates that continuance of a criminal proceeding after a compromise has been arrived at
between the complainant and the accused, would amount to abuse of the process of court and an
exercise in futility, since the trial could be prolonged and ultimately, may conclude in a decision which
may be of any consequence to any of the other parties.

 In the instant case the dispute between the petitioners and the Banks having been compromised, we
have to examine whether the continuance of the criminal proceeding could turn out to be an exercise in
futility without anything positive being ultimately achieved.

 In the present case, the fact situation is different from that in Nikhil Merchant case. While in Nikhil
Merchant case the accused had misrepresented the financial status of the company in question in
order to avail of credit facilities to an extent to which the Company was not entitled, in the instant
case, the allegation is that as part of a larger conspiracy, property acquired on lease from a person
who had no title to the leased properties, was offered as collateral security for loans obtained. Apart
from the above, the actual owner of the property has filed a criminal complaint against Shri Kersi V.
Mehta who had held himself out as the attorney of the owner and his family members.

 In Nikhil Merchant case, this Court had in the facts of the case observed that the dispute involved had
overtures of a civil dispute with criminal facets. This is not so in the instant case where the emphasis is
more on the criminal intent of the petitioners than on the civil aspect involving the dues of the Bank in
respect of which a compromise was worked out.” The Court distinguished B.S. Joshi and Nikhil
Merchant by observing that those cases dealt with different fact situation.

In a very recent judgment decided by this Court in the month of July 2012 in Jayrajsinh Digvijaysinh Rana
v. State of Gujarat [(2012) 12 SCC 401] this Court was again concerned with the question of quashment of
an FIR alleging the offences punishable under Sections 467, 468, 471, 420 and 120-B IPC. The High Court
refused to quash the criminal case under Section 482 of the Code. The question for consideration was that
inasmuch as all those offences, except Section 420 IPC, were non-compoundable offences under Section
320 of the Code, whether it would be possible to quash the FIR by the High Court under Section 482 of the
Code or by this Court under Article 136 of the Constitution of India. The Bench elaborately considered the
decision of this Court in Shiji Case and by invoking Article 142 of the Constitution quashed the criminal
proceedings. It was held as under:

 In the light of the principles mentioned above, inasmuch as Respondent 2 complainant has filed an
affidavit highlighting the stand taken by the appellant (Accused 3) during the pendency of the appeal
before this Court and the terms of settlement as stated in the said affidavit, by applying the same
analogy and in order to do complete justice under Article 142 of the Constitution, we accept the terms
of settlement insofar as the appellant herein (Accused 3) is concerned. In view of the same, we quash
and set aside the impugned FIR No. 45 of 2011 registered with Sanand Police Station, Ahmedabad for
offences punishable under Sections 467, 468, 471, 420 and 120-B IPC insofar as the appellant
(Accused 3) is concerned. The appeal is allowed to the extent mentioned above.

Having surveyed the decisions of this Court which throw light on the question raised before us, two
decisions, one given by the Punjab and Haryana High Court and the other by the Bombay High Court
deserve to be noticed.

A five-Judge Bench of the Punjab and Haryana High Court in Kulwinder Singh v. State of Punjab [(2007) 4
CTC 769] was called upon to determine, inter alia, the question
whether the High Court has the power under Section 482 of the Code to quash the criminal proceedings or
allow the compounding of the offences in the cases which have been specified as non-compoundable
offences under the provisions of Section 320 of the Code. The five Judge Bench framed the following
guidelines: (Kulwinder Singh case, CTC pp. 783-84, para 21)

(a) Cases arising from matrimonial discord, even if other offences are introduced for aggravation of the
case.

(b) Cases pertaining to property disputes between close relations, which are predominantly civil in nature
and they have a genuine dimension of criminal liability. Notwithstanding a touch of criminal liability, the
settlement would bring lasting peace and harmony to larger number of people.

(c) Cases of dispute between old partners or business concerns with dealings over a long period which are
predominantly civil and are given or acquire a criminal dimension but the parties are essentially seeking a
redressal of their financial or commercial claim.

(d) Minor offences as under Section 279 IPC may be permitted to be compounded on the basis of legitimate
settlement between the parties. Another set of offences, which ought to be liberally compounded, are
Sections 147 and 148 IPC, more particularly where other offences are compoundable. It may be added here
that the State of Madhya Pradesh vide M.P. Act 17 of 1999 (Section 3) has made Sections 506(II) IPC, 147
IPC and 148 IPC compoundable offences by amending the schedule under Section 320 CrPC.

(e) The offences against human body other than murder and culpable homicide where the victim dies in the
course of transaction would fall in the category where compounding may not be permitted. Heinous
offences like highway robbery, dacoity or a case involving clearcut allegations of rape should also fall in
the prohibited category.

 Offences committed by public servants purporting to act in that capacity as also offences against
public servant while the victims are acting in the discharge of their duty must remain non-
compoundable.
 Offences against the State enshrined in Chapter VII (relating to army, navy and air force) must remain
non-compoundable.

(f) That as a broad guideline the offences against human body other than murder and culpable homicide
may be permitted to be compounded when the court is in the position to record a finding that the
settlement between the parties is voluntary and fair.

While parting with this part, it appears necessary to add that the settlement or compromise must satisfy
the conscience of the court. The settlement must be just and fair besides being free from the undue
pressure, the court must examine the cases of weaker and vulnerable victims with necessary caution.’

To conclude, it can safely be said that there can never be any hard and fast category which can be
prescribed to enable the court to exercise its power under Section 482 CrPC. The only principle that can be
laid down is the one which has been incorporated in the section itself i.e. ‘to prevent abuse of the process of
any court’ or ‘to secure the ends of justice’.”

It was further held in Kulwinder Singh case:

 No embargo, be in the shape of Section 320(9) CrPC, or any other such curtailment, can whittle down
the power under Section 482 CrPC

 The only inevitable conclusion from the above discussion is that there is no statutory bar under CrPC
which can affect the inherent power of this Court under Section 482. Further, the same cannot be
limited to matrimonial cases alone and the court has the wide power to quash the proceedings even in
non-compoundable offences notwithstanding the bar under Section 320 CrPC, in order to prevent the
abuse of law and to secure the ends of justice.

A three-Judge Bench of the Bombay High Court in Abasaheb Yadav Honmane v. State of
Maharashtra[(2008) 2 Mah LJ 856] dealt with the inherent power of the High Court under Section 482 of
the Code vis-à-vis the express bar for compounding of the non-compoundable offences in Section 320(9) of
the Code. The High Court referred to various decisions of this Court and also the decisions of the various
High Courts and then stated as follows:

“14. The power of compounding on one hand and quashing of criminal proceedings in exercise of inherent
powers on the other, are incapable of being treated as synonymous or even interchangeable in law. The
conditions precedent and satisfaction of criteria in each of these cases are distinct and different. May be,
the only aspect where they have any commonality is the result of exercise of such power in favour of the
accused, as acquittal is the end result in both these cases. Both these powers are to be exercised for valid
grounds and with some element of objectivity. Particularly, the power of quashing the FIR or criminal
proceedings by the court by taking recourse to inherent powers is expected to be used sparingly and that
too without losing sight of impact of such order on the criminal justice delivery system. It may be obligatory
upon the court to strike a balance between the nature of the offence and the need to pass an order in
exercise of inherent powers, as the object of criminal law is protection of public by maintenance of law and
order.”

From here Supreme Court is deciding the reference made by the two Judge Bench:

 Section 320 of the Code articulates public policy with regard to the compounding of offences. It
catalogues the offences punishable under IPC which may be compounded by the parties without
permission of the court and the composition of certain offences with the permission of the court. The
offences punishable under the special statutes are not covered by Section 320.
 When an offence is compoundable under Section 320, abatement of such offence or an attempt to
commit such offence or where the accused is liable under Section 34 or 149 IPC can also be
compounded in the same manner.
 A person who is under 18 years of age or is an idiot or a lunatic is not competent to contract
compounding of offence but the same can be done on his behalf with the permission of the court. If a
person is otherwise competent to compound an offence is dead, his legal representatives may also
compound the offence with the permission of the court.
 Where the accused has been committed for trial or he has been convicted and the appeal is pending,
composition can only be done with the leave of the court to which he has been committed or with the
leave of the appeal court, as the case may be. The Revisional Court is also competent to allow any
person to compound any offence who is competent to compound.
 The consequence of the composition of an offence is acquittal of the accused.
 Sub-section (9) of Section 320 mandates that no offence shall be compounded except as provided by
this section. Obviously, in view thereof the composition of an offence has to be in accord with Section
320 and in no other manner.

The question is with regard to the inherent power of the High Court in quashing the criminal proceedings
against an offender who has settled his dispute with the victim of the crime but the crime in which he is
allegedly involved is not compoundable under Section 320 of the Code.

 Section 482 of the Code, as its very language suggests, saves the inherent power of the High Court
which it has by virtue of it being a superior court to prevent abuse of the process of any court or
otherwise to secure the ends of justice. It begins with the words, “nothing in this Code” which means
that the provision is an overriding provision. These words leave no manner of doubt that none of the
provisions of the Code limits or restricts the inherent power.
 The guideline for exercise of such power is provided in Section 482 itself i.e. to prevent abuse of the
process of any court or otherwise to secure the ends of justice.
 As has been repeatedly stated that Section 482 confers no new powers on the High Court; it merely
safeguards existing inherent powers possessed by the High Court necessary to prevent abuse of the
process of any court or to secure the ends of justice.
 It is equally well settled that the power is not to be resorted to if there is specific provision in the Code
for the redress of the grievance of an aggrieved party. It should be exercised very sparingly and it
should not be exercised as against the express bar of law engrafted in any other provision of the Code.

Therefore, In different situations, the inherent power may be exercised in different ways to achieve its
ultimate objective. Formation of opinion by the High Court before it exercises inherent power under Section
482 on either of the twin objectives,
(i) to prevent abuse of the process of any court, or
(ii) to secure the ends of justice, is a sine qua non.

In the very nature of its constitution, it is the judicial obligation of the High Court to undo a wrong in course
of administration of justice or to prevent continuation of unnecessary judicial process. This is founded on
the legal maxim quando lex aliquid alicui concedit, conceditur et id sine qua res ipsa esse non potest. The
full import of which is whenever anything is authorised, and especially if, as a matter of duty, required to be
done by law, it is found impossible to do that thing unless something else not authorised in express terms
be also done, may also be done, then that something else will be supplied by necessary intendment.

 It needs no emphasis that exercise of inherent power by the High Court would entirely depend on the
facts and circumstances of each case. It is neither permissible nor proper for the court to provide a
straitjacket formula regulating the exercise of inherent powers under Section 482. No precise and
inflexible guidelines can also be provided.
Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is
not the same thing as compounding of offence. They are different and not interchangeable. Strictly
speaking, the power of compounding of offences given to a court under Section 320 is materially different
from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction.

In compounding of offences, power of a criminal court is circumscribed by the provisions contained in

Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of
opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is
guided by the material on record as to whether the ends of justice would justify such exercise of power.

 Where the High Court quashes a criminal proceeding having regard to the fact that the dispute
between the offender and the victim has been settled although the offences are not compoundable, it
does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in
the case demands that the dispute between the parties is put to an end and peace is restored; securing
the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful
effect on the public and consist in wrongdoing that seriously endangers and threatens the well-being of
the society and it is not safe to leave the crime-doer only because he and the victim have settled the
dispute amicably or that the victim has been paid compensation, yet certain crimes have been made
compoundable in law, with or without the permission of the court.

 In respect of serious offences like murder, rape, dacoity, etc., or other offences of mental depravity
under IPC or offences of moral turpitude under special statutes, like the Prevention of Corruption Act or
the offences committed by public servants while working in that capacity, the settlement between the
offender and the victim can have no legal sanction at all.

 However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen
out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences
arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is
basically to the victim and the offender and the victim have settled all disputes between them
amicably, irrespective of the fact that such offences have not been made compoundable, the High
Court may within the framework of its inherent power, quash the criminal proceeding or criminal
complaint or FIR if it is satisfied that on the face of such settlement, there is hardly any likelihood of the
offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and
ends of justice shall be defeated.
The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard-and-
fast category can be prescribed.

 B.S. Joshi , Nikhil Merchant , Manoj Sharma and Shiji [(2011) 10 SCC 705] do illustrate the principle
that the High Court may quash criminal proceedings or FIR or complaint in exercise of its inherent
power under Section 482 of the Code and Section 320 does not limit or affect the powers of the High
Court under Section 482.

Q. Can it be said that by quashing criminal proceedings in B.S. Joshi, Nikhil Merchant, Manoj Sharma and
Shiji this Court has compounded the non-compoundable offences indirectly?
Ans: We do not think so. There does exist the distinction between compounding of an offence under
Section 320 and quashing of a criminal case by the High Court in exercise of inherent power under Section
482.
The two powers are distinct and different although the ultimate consequence may be the same viz.
acquittal of the accused or dismissal of indictment.

We find no incongruity in the above principle of law.

The position that emerges from the above discussion can be summarised thus:
 the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its
inherent jurisdiction is distinct and different from the power given to a criminal court for compounding
the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory
limitation but it has to be exercised in accord with the guideline engrafted in such power viz.:
(i) to secure the ends of justice, or
(ii) to prevent abuse of the process of any court.

 In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the
offender and the victim have settled their dispute would depend on the facts and circumstances of each
case and no category can be prescribed.

 However, before exercise of such power, the High Court must have due regard to the nature and
gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape,
dacoity, etc. cannot be fittingly quashed even though the victim or victim's family and the offender
have settled the dispute.
Such offences are not private in nature and have a serious impact on society.

 Similarly, any compromise between the victim and the offender in relation to the offences under
special statutes like the Prevention of Corruption Act or the offences committed by public servants
while working in that capacity, etc.; cannot provide for any basis for quashing criminal proceedings
involving such offences.

 But the criminal cases having overwhelmingly and predominatingly civil flavour stand on a different
footing for the purposes of quashing, particularly the offences arising from commercial, financial,
mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating
to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the
parties have resolved their entire dispute.

In this category of cases, the High Court may quash the criminal proceedings if in its view,
 because of the compromise between the offender and the victim, the possibility of conviction is
remote and bleak and
 continuation of the criminal case would put the accused to great oppression and prejudice and
extreme injustice would be caused to him by not quashing the criminal case despite full and
complete settlement and compromise with the victim.

In other words, the High Court must consider:

 whether it would be unfair or contrary to the interest of justice to continue with the criminal
proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law
despite settlement and compromise between the victim and the wrongdoer and

 whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the
answer to the above question(s) is in the affirmative,
the High Court shall be well within its jurisdiction to quash the criminal proceeding.

62. In view of the above, it cannot be said that B.S. Joshi , Nikhil Merchant and Manoj Sharma were not
correctly decided. We answer the reference accordingly. Let these matters be now listed before the
Bench(es) concerned.
 State of M.P. v. Deepak
(2014) 10 SCC 285

DR A.K. SIKRI, J:

Leave granted. As counsel for both the parties expressed their willingness to argue the matter finally at this
stage, we heard the appeal finally.

 This appeal is preferred by the State of Madhya Pradesh against the judgment and order dated 10-5-
2013 in Deepak v. State of M.P., passed by the High Court in the petition filed by Respondents 1 and
2, herein. The said petition was filed under Section 482 of the Code for compounding/quashing of
criminal proceedings arising out of Crime No. 171 of 2013 under Sections 307/34 IPC registered at
Police Station Kotwali, District Vidisha (M.P.) and consequent criminal proceedings bearing Criminal
Case No. 582 of 2013 pending before the Chief Judicial Magistrate, Vidisha. The FIR was registered at
the instance of Respondent 3 (“the complainant”).

The complainant , Deepak Ghenghat s/o Laxminarayan Ghenghat, had alleged that:
 On 11-3-2013 at about 9.45 p.m., while he was going to Baraipura Chauraha for buying gutkha for his
mother, Deepak Nahariya and Mukesh Nahariya (Respondents 1 and 2) met him near Sweeper
Mohalla, Gali 1. On being asked by Respondent 1, in an abusive language, as to where he was
proceeded to, the complainant protested against the use of such foul language.

 At this, Respondent 1 took out the sword which he was carrying and with an intention to kill the
complainant, he inflicted a blow on his forehead by shouting “you have lodged the report against my
elder brother, today I will kill you”. Respondent 1, thereafter, inflicted blows above the ear on the
back side of the head and on the left arm. When the complainant informed that he would lodge a
report with the police, Respondent 2 caught hold of him and threatened that if he lodges the report,
then he would not let the complainant reside in the mohalla. By that time, brother of the complainant
Suraj and one Preeti reached the spot and rescued the complainant.

 On the same date, the complainant lodged FIR No. 171 of 2013 at Police Station Kotwali, Vidisha (M.P.)
for the offence punishable under Section 307 IPC read with Section 34 IPC which triggered the
criminal investigation and complainant Deepak Ghenghat was sent for medical examination.
Thereafter, on 12-3-2013 the police reached on the spot and prepared the spot map, recorded the
statements of the witnesses under Section 161, arrested the accused persons and seized certain
articles.

 On 14-4-2013, articles which were seized were sent for forensic examination. After due and proper
investigation a charge-sheet was filed on for the offences punishable under Section 307 IPC read with
Section 34 IPC.

The respondent filed Misc. Criminal Case No. 3527 of 2013 before the High Court of Madhya Pradesh,
Bench at Gwalior under Section 482 CrPC:
 for quashing the criminal proceedings, arising out of FIR No. 171 of 2013 against the respondent on
the basis of compromise..

 The High Court has accepted the said compromise after taking note of the submissions made before it
at the Bar, and the fact that the complainant had also submitted that he did not wish to prosecute the
accused persons as he had settled all the disputes amicably with them. For quashing the proceedings,
the High Court has referred to the judgment of this Court in Shiji v. Radhika [(2011) 10 SCC 705].
Aggrieved by the aforesaid order, the State is before us in the present appeal. It is primarily submitted
by the learned counsel for the State:
 that the judgment in Shiji Case is not applicable to the facts of the present case inasmuch as the
incident in question had its genesis and origin in a civil dispute between the parties and having regard
to the same the Court had accepted the settlement and quashed the proceedings when it found that
the parties had resolved the said dispute between them.

 It was pleaded that on the contrary, in the present case the accused persons are habitual offenders and
they had threatened the complainant and extracted the compromise which was not voluntary.

 The learned counsel also referred to the injuries suffered by the complainant which are described in
the report as a result of the medical examination carried out on the person of the complainant
immediately after the incident.

 that the offence under Section 307 IPC was, prima facie, made out and for such a heinous crime the
High Court should not have exercised its discretion under Section 482 CrPC and quashed the
proceedings as the offence in question was non-compoundable under Section 320 of the Code.

The learned counsel for the accused on the other hand submitted

 that since the parties had settled the matter, the High Court had rightly accepted the compromise
between the parties. This action of the High Court was justified as parties had buried the hatchet and
wanted to live peacefully.

 that this Court should not interfere with the aforesaid exercise of discretion by the High Court.

Decision of Supreme Court:

After examining the facts of this case and the medical record, we are of the opinion that it was not a case
where the High Court should have quashed the proceedings in exercise of its discretion under Section 482
of the Code.

A similar situation, as in the present case, was found to have arisen in State of Rajasthan v. Shambhu
Kewat [(2014) 4 SCC 149] .
In that case also, the High Court had accepted the settlement between the parties in an offence under
Section 307 read with Section 34 IPC and set the accused at large by acquitting them. The settlement was
arrived at during the pendency of appeal before the High Court against the order of conviction and
sentence of the Sessions Judge holding the accused persons guilty of the offence under Sections 307/34
IPC. Some earlier cases of compounding of offence under Section 307 IPC were taken note of, noticing that
under certain circumstances, the Court had approved the compounding whereas in certain other cases
such a course of action was not accepted. In that case, this Court took the view that the High Court was
not justified in accepting the compromise and setting aside the conviction.

We would like to mention at this stage that in some cases the offences under Section 307 IPC are
allowed to be compounded, whereas in some other cases it is held to be contrary.

This dichotomy was taken note of by referring to those judgments, in Narinder Singh v. State of Punjab
[(2014) 6 SCC 466] , and by reconciling those judgments, situations and circumstances were discerned
where compounding is to be allowed or refused. To put it simply, it was pointed out as to under what
circumstances the Courts had quashed the proceedings acting upon the settlement arrived at between the
parties on the one hand and what were the reasons which had persuaded the Court not to exercise such a
discretion.
After thorough and detailed discussion on various facets and after revisiting the entire law on the
subject, following principles have been culled out in the said decision: (SCC pp. 482-84, para 29)

In view of the aforesaid discussion, we sum up and lay down the following principles by which the High
Court would be guided in giving adequate treatment to the settlement between the parties and
exercising its power under Section 482 of the Code while accepting the settlement and quashing the
proceedings or refusing to accept the settlement with direction to continue with the criminal
proceedings:

Principle 1: Power conferred under Section 482 of the Code is to be distinguished from the power which
lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of
the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which
are not compoundable, where the parties have settled the matter between themselves. However, this
power is to be exercised sparingly and with caution.

Principle 2: When the parties have reached the settlement and on that basis petition for quashing the
criminal proceedings is filed, the guiding factor in such cases would be to secure:

(i) ends of justice, or

(ii) to prevent abuse of the process of any court

While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.

Principle 3: Such a power is not to be exercised in those prosecutions which involve heinous and serious
offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in
nature and have a serious impact on society.

 Similarly, for the offences alleged to have been committed under special statute like the Prevention of
Corruption Act or the offences committed by public servants while working in that capacity are not to
be quashed merely on the basis of compromise between the victim and the offender.

Principle 4: On the other hand, those criminal cases having overwhelmingly and predominantly civil
character, particularly those:
 arising out of commercial transactions or
 arising out of matrimonial relationship or family disputes

should be quashed when the parties have resolved their entire disputes among themselves.

Principle 5: While exercising its powers, the High Court is to examine as to whether the possibility of
conviction is remote and bleak and continuation of criminal cases would put the accused to great
oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.

Principle 6: Offences under Section 307 IPC would fall in the category of heinous and serious offences and
therefore are to be generally treated as crime against the society and not against the individual alone.

 However, the High Court would not rest its decision merely because there is a mention of Section 307
IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to
examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has
collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC.
 For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether
such injury is inflicted on the vital/delicate parts of the body, nature of weapons used, etc. Medical
report in respect of injuries suffered by the victim can generally be the guiding factor.

 On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong
possibility of conviction or the chances of conviction are remote and bleak. In the former case it can
refuse to accept the settlement and quash the criminal proceedings whereas in the latter case it would
be permissible for the High Court to accept the plea compounding the offence based on complete
settlement between the parties.

 At this stage, the Court can also be swayed by the fact that the settlement between the parties is going
to result in harmony between them which may improve their future relationship.

Principle 7: While deciding whether to exercise its power under Section 482 of the Code or not, timings of
settlement play a crucial role.

 Those cases where the settlement is arrived at immediately after the alleged commission of offence
and the matter is still under investigation, the High Court may be liberal in accepting the settlement to
quash the criminal proceedings/investigation. It is because of the reason that at this stage the
investigation is still on and even the charge-sheet has not been filed.

 Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still
at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after
prima facie assessment of the circumstances/material mentioned above.

 On the other hand, where the prosecution evidence is almost complete or after the conclusion of the
evidence the matter is at the stage of argument, normally the High Court should refrain from exercising
its power under Section 482 of the Code, as in such cases the trial court would be in a position to
decide the case finally on merits and to come to a conclusion as to whether the offence under Section
307 IPC is committed or not.

 Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at
the appellate stage before the High Court, mere compromise between the parties would not be a
ground to accept the same resulting in acquittal of the offender who has already been convicted by the
trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous
crime and, therefore, there is no question of sparing a convict found guilty of such a crime.” (emphasis
supplied)

It is clear from the reading of the passages extracted above, that the offence under Section 307 is not
treated as a private dispute between the parties inter se but is held to be a crime against the society.
Further, guidelines are laid down for the Courts to deal with such matters when application for quashing
of proceedings is filed, after the parties have settled the issues between themselves.

When we apply the ratio/principle laid down in Narinder Singh case [(2014) 6 SCC 466] to the facts of the
present case, we find:
 that the injuries inflicted on the complainant were very serious in nature. The accused was armed with
sword and had inflicted blows on the forehead, ear, back side of the head as well as on the left arm of
the complainant. The complainant was attacked five times with the sword by the accused person out of
which two blows were struck on his head. But for the timely arrival of the brother of the complainant
and another lady named Preeti, who rescued the complainant, the attacks could have continued. In a
 case like this, the High Court should not have accepted the petition of the accused under Section 482 of
the Code.

As a result of the aforesaid discussion, this appeal is allowed and the order [Deepak v. State of M.P., MCRC
No. 3527 of 2013, decided on 10-5-2013 (MP)] of the High Court is set aside. The Magistrate concerned
shall proceed with the trial of the case.
 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1723 OF 2017

[Arising out of SLP(CRL) No 9549 of 2016]

PARBATBHAI AAHIR @ PARBATBHAI

BHIMSINHBHAI KARMUR AND ORS ..Appellants

VERSUS

STATE OF GUJARAT AND ANR. ..Respondents

JUDGMENT

Dr D Y CHANDRACHUD, J

1 Leave granted.

Signature Not Verified

Digitally signed by
CHETAN KUMAR
Date: 2017.10.04
15:23:13 IST
Reason:
 2

2 By its judgment dated 25 November 2016, the High Court of Gujarat

dismissed an application under Section 482 of the Code of Criminal

Procedure, 1973. The appellants sought the quashing of a First Information

Report registered against them on 18 June 2016 with the City ‘C’ Division

Police Station, District Jamnagar, Gujarat for offences punishable under

Sections 384, 467, 468, 471, 120-B and 506(2) of the Penal Code. The

second respondent is the complainant.

3 In his complaint dated 18 June 2016, the second respondent stated that

certain land admeasuring 17 vigha comprised in survey 1408 at Panakhan

Gokulnagar in Jamnagar city was his ancestral agricultural land. The land was

converted to non-agricultural use on 21 June 1995 and 5 January 2000

pursuant to orders of the District Collector. One hundred and three plots were

carved out of the land. Amongst them, plots 45 to 56 admeasuring 32,696

sq.ft. were in the joint names of six brothers and a sister (represented by the

complainant). According to the complainant, a broker by the name of

Bachhubhai Veljibhai Nanda approached him with Parbatbhai Ahir, the first

appellant stating that he desired to purchase the land. On the next day, the

first appellant approached the complainant with his partner Hasmukhbhai

Patel (the third appellant) to purchase the land. The complainant was

requested to provide a photocopy of the lay out plan of the plot, which he did.

On the following day the first appellant is alleged to have gone to the house of
 3

the complainant with the second and the third appellants at which point in

time, parties agreed that the land would be sold at the rate of Rs 4,221 per

sq.ft. and a deal was struck for a consideration of Rs.1,13,58,711/- out of

which an amount of Rs 11 lakhs was given in cash to the complainant for plot

no.56. The complainant’s case is that while the discussion was on, he was

requested by the second and the third appellants that since the power of

attorney was old and unreadable all the plot holders should give their passport

size photographs. Accordingly, a document was reduced to writing by which it

was agreed that the sale transaction for plot no.56 would be completed within

two months against full payment. According to the complainant, when he

demanded the remaining payment for the plot from the second and third

appellants, the second appellant provided him seven cheques each in the

amount of Rs 6 lakhs in the name of the six brothers (one brother being given

two cheques). Thereafter when the complainant followed up for the payment

of the remaining amount with the purchasers, the balance was not paid and,

on the contrary, the complainant was threatened of a forcible transfer of the

land. According to the complainant, when he visited the office of the

Sub-registrar about three days before lodging the complaint, it came to his

knowledge that a sale deed has been registered not only in respect of the plot

in question (which was agreed to be sold) but also in respect of plot nos.45 to

55 on 27 January 2016. It was then that the complainant realised that the

purchaser in the sale deed was shown as the fourth appellant, Jayesh
 4

Arvindbhai Patel, and the name of the seventh appellant, Jitudan Nankudan

Gadhavi, resident of Payalnagar society, Naroda, Ahmedabad was shown as

the holder of a power of attorney. The witnesses to the registered sale deed

were the fifth appellant, Rabari Hiteshbhai and the sixth appellant, Patel

Indravaden Dineshbhai.

4 The complaint came to be lodged on the complainant having realised

that the power of attorney in the name of his siblings had been forged. The

complainant stated that neither he nor any of his siblings had given a power of

attorney in favour of the seventh appellant. According to the complainant,

neither the non-judicial stamp dated 25 January 2016 in the amount of

Rs 10,30,000/- nor the judicial stamp dated 27 January 2016 has been

purchased by him. In fact, according to the complainant, it was the fourth

appellant who had purchased the judicial stamp dated 27 January 2016.

5 According to the complaint, plots no.45 to 55 admeasuring 30,005 sq.ft.

are valued at Rs 12.50 crores. It has been alleged that a conspiracy was

hatched by the appellants and by the other co-accused resulting into the

transfer of valuable land belonging to the complainant and his siblings, on the

basis of forged documents.

 5

6 The High Court noted that the fourth appellant had moved Special

Criminal Application no.4538 of 2016 which had been rejected by the

coordinate bench of the High Court on 3 August 2016. While rejecting the

earlier application under Section 482, the High Court had observed thus:

“19. Primary details revealed the complaint had led this Court
examine the papers of the investigation. The evidence so far
collected prima facie reveal the involvement of the petitioner.
This Court also could notice that it is a case where under the
pretext of buying only a particular Plot No.56 from the
complainant and his family members, the power of attorney has
been forged usurping nearly 10 other plots which value nearly
11 crores and odd by allegedly conniving with each other, and
therefore, the payment of Rs 42 lakhs by the cheques to the
complainant in relation to one of the plots also would pale into
insignificance. This, by no means, even at a prima facie level,
can be said to be a civil dispute, given a colour of criminality. It
would be in the interest of both the sides for this Court to either,
at this stage not to make a roving inquiry or divulge anything
which may affect the ongoing investigation. Suffice it to note
that, the petition does not deserved to be entertained an the
same stands rejected.”

Before the High Court, the plea for quashing the First Information Report was

advanced on the ground that the appellants had amicably settled the dispute

with the complainant. The complainant had also filed an affidavit to that

effect.

7 On behalf of the prosecution, the Public Prosecutor opposed the

application for quashing on two grounds. First - the appellants were

 6

absconding and warrants had been issued against them under Section 70 of

the Code of Criminal Procedure, 1973. Second, the appellants had criminal

antecedents, the details of which are contained in the following chart

submitted before the High Court:

1 Parbatbhai Bhimsinhbhai Karmur a. City “A” Division Jamnagar P.1

CR No 1-251/2010

2 Ramde Bhikha Nanadaniya P.2

a. City “A”Division Jamnagar
CR No.1-135/2016 2

b. City “A” Division Jamnagar

CR No.1-105/2016
2
c. City “A” Division Jamnagar
CR No.1-251/2010

3 Hasmukh Hansrajbhai Patel a. Gandhinagar M-Case No.1/2014 P.3

b. City “A” Division Jamnagar

CR No.1-105/2016
4 Indravadan Dineshbhai Patel a. City “A: Division Jamnagar P.6
CR No.1-105/2016

5 Jitendra Somabhai Modi a. City “A” Division Jamnagar P.7

CR No.1-105/2016

b. Odhav Police Station

CR No.I-180/2015

6 Vishnu @ Toto Rabari a. Gandhinagar M-Case No.1/2014

b. City “A: Division Jamnagar

CR No.I-105/2016
 7

The High Court observed that it had been given “a fair idea” about the modus

operandi adopted by the appellants for grabbing the land, in the course of

which they had opened bogus bank accounts. The High Court held that the

case involves extortion, forgery and conspiracy and all the appellants have

acted as a team. Hence, in the view of the High Court, it was not in the

interest of society at large to accept the settlement and quash the FIR. The

High Court held that the charges are of a serious nature and the activities of

the appellants render them a potential threat to society. On this ground, the

prayer to quash the First Information Report has been rejected.

8 On behalf of the appellants, reliance has been placed on the decisions

rendered by this Court in Gian Singh v State of Punjab1 and in Narinder

Singh v State of Punjab2. Learned counsel submitted that the dispute

between the complainant and the appellants arose from a transaction for the

sale of land. It was urged that the dispute is essentially of a civil nature and

since parties have agreed to an amicable settlement, the proper course for

the High Court would have been to quash the FIR in exercise of the

jurisdiction conferred by Section 482 of the Code of Criminal Procedure, 1973.

1 (2012) 10 SCC 303

2 (2014) 6 SCC 466
 8

9 On the other hand, learned counsel appearing on behalf of the state

has supported the judgment of the High Court. Learned counsel emphasised

the circumstances which weighed with the High Court, including (i) the

seriousness of the allegations; (ii) the conduct of the appellants who were

absconding; and (iii) the criminal antecedents of the appellants. Hence, it was

urged that the appellants were not entitled to the relief of quashing the FIR

merely because they had entered into a settlement with the complainant.

10 Section 482 is prefaced with an overriding provision. The statute saves

the inherent power of the High Court, as a superior court, to make such orders

as are necessary (i) to prevent an abuse of the process of any court; or (ii)

otherwise to secure the ends of justice. In Gian Singh (supra) a bench of

three learned Judges of this Court adverted to the body of precedent on the

subject and laid down guiding principles which the High Court should consider

in determining as to whether to quash an FIR or complaint in the exercise of

the inherent jurisdiction. The considerations which must weigh with the High

Court are:

“61 …the power of the High Court in quashing a criminal

proceeding or FIR or complaint in exercise of its inherent
jurisdiction is distinct and different from the power given to a
criminal court for compounding the offences under Section 320
of the Code. Inherent power is of wide plenitude with no
statutory limitation but it has to be exercised in accord with the
guideline engrafted in such power viz.: (i) to secure the ends of
justice, or (ii) to prevent abuse of the process of any court. In
 9

what cases power to quash the criminal proceeding or

complaint or FIR may be exercised where the offender and the
victim have settled their dispute would depend on the facts and
circumstances of each case and no category can be
prescribed. However, before exercise of such power, the High
Court must have due regard to the nature and gravity of the
crime. Heinous and serious offences of mental depravity or
offences like murder, rape, dacoity, etc. cannot be fittingly
quashed even though the victim or victim’s family and the
offender have settled the dispute. Such offences are not
private in nature and have a serious impact on society.
Similarly, any compromise between the victim and the offender
in relation to the offences under special statutes like the
Prevention of Corruption Act or the offences committed by
public servants while working in that capacity, etc; cannot
provide for any basis for quashing criminal proceedings
involving such offences. But the criminal cases having
overwhelmingly and predominatingly civil flavour stand on a
different footing for the purposes of quashing, particularly the
offences arising from commercial, financial, mercantile, civil,
partnership or such like transactions or the offences arising out
of matrimony relating to dowry, etc. or the family disputes
where the wrong is basically private or personal in nature and
the parties have resolved their entire dispute. In this category
of cases, the High Court may quash the criminal proceedings if
in its view, because of the compromise between the offender
and the victim, the possibility of conviction is remote and bleak
and continuation of the criminal case would put the accused to
great oppression and prejudice and extreme injustice would be
caused to him by not quashing the criminal case despite full
and complete settlement and compromise with the victim. In
other words, the High Court must consider whether it would be
unfair or contrary to the interest of justice to continue with the
criminal proceeding or continuation of the criminal proceeding
would tantamount to abuse of process of law despite
settlement and compromise between the victim and the
wrongdoer and whether to secure the ends of justice, it is
appropriate that the criminal case is put to an end and if the
answer to the above question(s) is in the affirmative, the High
Court shall be well within its jurisdiction to quash the criminal
proceeding.”
 10

11 In Narinder Singh (supra), Dr Justice A K Sikri, speaking for a bench of

two learned Judges of this Court observed that in respect of offences against

society, it is the duty of the state to punish the offender. In consequence,

deterrence provides a rationale for punishing the offender. Hence, even when

there is a settlement, the view of the offender and victim will not prevail since

it is in the interest of society that the offender should be punished to deter

others from committing a similar crime. On the other hand, there may be

offences falling in the category where the correctional objective of criminal law

would have to be given more weightage than the theory of deterrence. In such

a case, the court may be of the opinion that a settlement between the parties

would lead to better relations between them and would resolve a festering

private dispute. The court observed that the timing of a settlement is of

significance in determining whether the jurisdiction under Section 482 should

be exercised:

“29.7…Those cases where the settlement is arrived at immediately

after the alleged commission of offence and the matter is still
under investigation, the High Court may be liberal in accepting
the settlement to quash the criminal proceedings/investigation.
It is because of the reason that at this stage the investigation is
still on and even the charge-sheet has not been filed. Likewise,
those cases where the charge is framed but the evidence is yet
to start or the evidence is still at infancy stage, the High Court
can show benevolence in exercising its powers favourably, but
after prima facie assessment of the circumstances/material
mentioned above. On the other hand, where the prosecution
evidence is almost complete or after the conclusion of the
evidence the matter is at the stage of argument, normally the
 11

High Court should refrain from exercising its power under

Section 482 of the Code, as in such cases the trial court would
be in a position to decide the case finally on merits…”

This Court held, while dealing with an offence under Section 307 of the Penal

Code that the following circumstances had weighed with it in quashing the

First Information Report:

"33. We have gone through the FIR as well which was recorded on
the basis of statement of the complainant/victim. It gives an
indication that the complainant was attacked allegedly by the
accused persons because of some previous dispute between
the parties, though nature of dispute etc. is not stated in detail.
However, a very pertinent statement appears on record viz.,
"respectable persons have been trying for a compromise up till
now, which could not be finalized". This becomes an important
aspect. It appears that there have been some disputes which
led to the aforesaid purported attack by the accused on the
complainant. In this context when we find that the elders of the
village, including Sarpanch, intervened in the matter and the
parties have not only buried their hatchet but have decided to
live peacefully in future, this becomes an important
consideration. The evidence is yet to be led in the Court. It has
not even started. In view of compromise between parties, there
is a minimal chance of the witnesses coming forward in support
of the prosecution case. Even though nature of injuries can still
be established by producing the doctor as witness who
conducted medical examination, it may become difficult to
prove as to who caused these injuries. The chances of
conviction, therefore, appear to be remote. It would, therefore,
be unnecessary to drag these proceedings...”

12 In State of Maharashtra v Vikram Anantrai Doshi3, a bench of two

learned Judges of this Court explained the earlier decisions and the principles

3 (2014) 15 SCC 29
 12

which must govern in deciding whether a criminal proceeding involving a

non-compoundable offence should be quashed. In that case, the respondents

were alleged to have obtained Letters of Credit from a bank in favour of

fictitious entities. The charge-sheet involved offences under Sections 406,

420, 467, 468, and 471 read with Section 120-B of the Penal Code. Bogus

beneficiary companies were alleged to have got them discounted by attaching

fabricated bills. Mr Justice Dipak Misra (as the learned Chief Justice then

was) emphasised that the case involved an allegation of forgery; hence the

court was not dealing with a simple case where “the accused had borrowed

money from a bank, to divert it elsewhere”. The court held that the manner in

which Letters of Credit were issued and funds were siphoned off had a

foundation in criminal law:

“… availing of money from a nationalized bank in the manner,

as alleged by the investigating agency, vividly exposits fiscal
impurity and, in a way, financial fraud. The modus operandi as
narrated in the chargesheet cannot be put in the compartment
of an individual or personal wrong. It is a social wrong and it
has immense societal impact. It is an accepted principle of
handling of finance that whenever there is manipulation and
cleverly conceived contrivance to avail of these kind of benefits
it cannot be regarded as a case having overwhelmingly and
predominatingly of civil character. The ultimate victim is the
collective. It creates a hazard in the financial interest of the
society. The gravity of the offence creates a dent in the
economic spine of the nation.”

The judgment of the High Court quashing the criminal proceedings was hence

set aside by this Court.

 13

13 The same principle was followed in Central Bureau of Investigation v

Maninder Singh4 by a bench of two learned Judges of this Court. In that

case, the High Court had, in the exercise of its inherent power under Section

482 quashed proceedings under Sections 420, 467, 468 and 471 read with

Section 120-B of the Penal Code. While allowing the appeal filed by the

Central Bureau of Investigation Mr Justice Dipak Misra (as the learned Chief

Justice then was) observed that the case involved allegations of forgery of

documents to embezzle the funds of the bank. In such a situation, the fact that

the dispute had been settled with the bank would not justify a recourse to the

power under Section 482:

“…In economic offences Court must not only keep in view that
money has been paid to the bank which has been defrauded
but also the society at large. It is not a case of simple assault or
a theft of a trivial amount; but the offence with which we are
concerned is well planned and was committed with a deliberate
design with an eye of personal profit regardless of
consequence to the society at large. To quash the proceeding
merely on the ground that the accused has settled the amount
with the bank would be a misplaced sympathy. If the
prosecution against the economic offenders are not allowed to
continue, the entire community is aggrieved."

14 In a subsequent decision in State of Tamil Nadu v R Vasanthi

Stanley5, the court rejected the submission that the first respondent was a

4 (2016) 1 SCC 389

5 (2016)1 SCC 376
 14

woman “who was following the command of her husband” and had signed

certain documents without being aware of the nature of the fraud which was

being perpetrated on the bank. Rejecting the submission, this Court held that:

“... Lack of awareness, knowledge or intent is neither to be

considered nor accepted in economic offences. The submission
assiduously presented on gender leaves us unimpressed. An
offence under the criminal law is an offence and it does not
depend upon the gender of an accused. True it is, there are
certain provisions in Code of Criminal Procedure relating to
exercise of jurisdiction Under Section 437, etc. therein but that
altogether pertains to a different sphere. A person committing a
murder or getting involved in a financial scam or forgery of
documents, cannot claim discharge or acquittal on the ground
of her gender as that is neither constitutionally nor statutorily a
valid argument. The offence is gender neutral in this case. We
say no more on this score…”
“…A grave criminal offence or serious economic offence or for
that matter the offence that has the potentiality to create a dent
in the financial health of the institutions, is not to be quashed on
the ground that there is delay in trial or the principle that when
the matter has been settled it should be quashed to avoid the
load on the system…”

15 The broad principles which emerge from the precedents on the subject,

may be summarised in the following propositions :

(i) Section 482 preserves the inherent powers of the High Court to prevent an

abuse of the process of any court or to secure the ends of justice. The

provision does not confer new powers. It only recognises and preserves

powers which inhere in the High Court;

 15

(ii) The invocation of the jurisdiction of the High Court to quash a First

Information Report or a criminal proceeding on the ground that a

settlement has been arrived at between the offender and the victim is not

the same as the invocation of jurisdiction for the purpose of compounding

an offence. While compounding an offence, the power of the court is

governed by the provisions of Section 320 of the Code of Criminal

Procedure, 1973. The power to quash under Section 482 is attracted even

if the offence is non-compoundable.

(iii) In forming an opinion whether a criminal proceeding or complaint should

be quashed in exercise of its jurisdiction under Section 482, the High

Court must evaluate whether the ends of justice would justify the exercise

of the inherent power;

(iv) While the inherent power of the High Court has a wide ambit and

plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to

prevent an abuse of the process of any court;

(v) The decision as to whether a complaint or First Information Report should

be quashed on the ground that the offender and victim have settled the

dispute, revolves ultimately on the facts and circumstances of each case

and no exhaustive elaboration of principles can be formulated;

 16

(vi) In the exercise of the power under Section 482 and while dealing with a

plea that the dispute has been settled, the High Court must have due

regard to the nature and gravity of the offence. Heinous and serious

offences involving mental depravity or offences such as murder, rape and

dacoity cannot appropriately be quashed though the victim or the family

of the victim have settled the dispute. Such offences are, truly speaking,

not private in nature but have a serious impact upon society. The

decision to continue with the trial in such cases is founded on the

overriding element of public interest in punishing persons for serious

offences;

(vii) As distinguished from serious offences, there may be criminal cases

which have an overwhelming or predominant element of a civil dispute.

They stand on a distinct footing in so far as the exercise of the inherent

power to quash is concerned;

(viii) Criminal cases involving offences which arise from commercial,

financial, mercantile, partnership or similar transactions with an

essentially civil flavour may in appropriate situations fall for quashing

where parties have settled the dispute;

(ix) In such a case, the High Court may quash the criminal proceeding if in

view of the compromise between the disputants, the possibility of a

 17

conviction is remote and the continuation of a criminal proceeding would

cause oppression and prejudice; and

(x) There is yet an exception to the principle set out in propositions (viii) and

(ix) above. Economic offences involving the financial and economic

well-being of the state have implications which lie beyond the domain of a

mere dispute between private disputants. The High Court would be

justified in declining to quash where the offender is involved in an activity

akin to a financial or economic fraud or misdemeanour. The

consequences of the act complained of upon the financial or economic

system will weigh in the balance.

16 Bearing in mind the above principles which have been laid down in the

decisions of this Court, we are of the view that the High Court was justified in

declining to entertain the application for quashing the First Information Report

in the exercise of its inherent jurisdiction. The High Court has adverted to two

significant circumstances. Each of them has a bearing on whether the

exercise of the jurisdiction under Section 482 to quash the FIR would

subserve or secure the ends of justice or prevent an abuse of the process of

the court. The first is that the appellants were absconding and warrants had

been issued against them under Section 70 of the Code of Criminal

Procedure, 1973. The second is that the appellants have criminal

 18

antecedents, reflected in the chart which has been extracted in the earlier part

of this judgment. The High Court adverted to the modus operandi which had

been followed by the appellants in grabbing valuable parcels of land and

noted that in the past as well, they were alleged to have been connected with

such nefarious activities by opening bogus bank accounts. It was in this view

of the matter that the High Court observed that in a case involving extortion,

forgery and conspiracy where all the appellants were acting as a team, it was

not in the interest of society to quash the FIR on the ground that a settlement

had been arrived at with the complainant. We agree with the view of the High

Court. The present case, as the allegations in the FIR would demonstrate, is

not merely one involving a private dispute over a land transaction between

two contesting parties. The case involves allegations of extortion, forgery and

fabrication of documents, utilization of fabricated documents to effectuate

transfers of title before the registering authorities and the deprivation of the

complainant of his interest in land on the basis of a fabricated power of

attorney. If the allegations in the FIR are construed as they stand, it is evident

that they implicate serious offences having a bearing on a vital societal

interest in securing the probity of titles to or interest in land. Such offences

cannot be construed to be merely private or civil disputes but implicate the

societal interest in prosecuting serious crime. In these circumstances, the

High Court was eminently justified in declining to quash the FIR which had
 19

been registered under Sections 384, 467, 468, 471, 120-B and 506(2) of the

Penal Code.

17 We do not, for the above reasons, find any merit in the appeal. The

Criminal Appeal shall accordingly stand dismissed.

...........................................CJI
[DIPAK MISRA]

.............................................J
[A M KHANWILKAR]

...........................................J
[Dr D Y CHANDRACHUD]
New Delhi;
October 04, 2017