TABLE OF CONTENTS

Arrest..........................................................................................................................................4

1. DK Basu v. State of West Bengal...................................................................................4

2. Jitendra Singh @ Babboo Singh & Anr vs State Of U.P................................................5

3. Arnesh Kumar vs State Of Bihar & Anr.........................................................................7

4. Jugal Kishore Samra v. Senior Intelligence Officer......................................................10

4. Christian Community Welfare v State of Maharashtra...................................................11

5. M C Abrahim v. State of Maharashtra............................................................................12

7. Delhi Judicial Service, Tiz Hazari v. State......................................................................12

8. Thogo Rani v. State of Orissa, 2003................................................................................13

Section 41(1)(g).......................................................................................................................13

1. Bhavesh Jayanti v State of Maharashtra.......................................................................14

2. Mohammed Zubair v State [Madras High Court].........................................................14

Arrest v. Custody.....................................................................................................................15

1. Pragya Singh v State of Maharashtra............................................................................15

Investigation.............................................................................................................................16

1. Faddi v State of West Bengal........................................................................................16

2. Apren Joseph v. State of Kerala....................................................................................17

3. Miyana Hasan v State of Gujarat..................................................................................17

4. State of Bihar v. PP Sharma..........................................................................................18

5. Lalita Kumari v. State of Uttar Pradesh........................................................................19

Satyanarayana v. Sandeep Enterprises.................................................................................24

COMPLAINANT BEING PART OF INVESTIGATION......................................................25

1. Megha Singh v State of Haryana..................................................................................25

 2. Surender @ Kala v. State of Haryana...........................................................................25

3. State v. Rajangum.........................................................................................................26

157-159....................................................................................................................................26

1. pala singh v. state of punjab..........................................................................................26

2. Alla Chinna Apparao v. State........................................................................................26

Necessity to answer all questions- Section 161.......................................................................27

1. Nandani Sathpathy v. Dani...........................................................................................27

Double Jeopardy: Section 300.................................................................................................30

1. Monica Bedi v. State of AP...........................................................................................30

Section 161-164.......................................................................................................................30

1. Gajendra v. State of UP.................................................................................................30

2. Vinay D. Nagar vs State Of Rajasthan on 3 March, 2008............................................31

3. State Of Kerala vs Babu & Ors on 4 May, 1999...........................................................31

State Of Nct Of Delhi vs Ravi Kant Sharma & Ors on 13 February, 2007.........................35

Section 162:..........................................................................................................................36

Mahabir Mandal v. State of Bihar........................................................................................36

Section 162 and Power of a Judge...........................................................................................37

Raghunandan v. State of UP................................................................................................37

Witness not sponsored by IA- part of investigation just relax.................................................38

1. Jogendra Nanak v State of Orissa.................................................................................38

2. Kunjukutty v State of Kerala.........................................................................................39

Delay........................................................................................................................................41

1. Acharaparambath Pradeepan v State of Kerala.............................................................41

Murli v State of Rajasthan....................................................................................................41

Trial..........................................................................................................................................43

By Sessions Court................................................................................................................43

1. P B Desai v. State of Gujarat, HC Decision..................................................................43

 2. Banti@Guddu v State of Madhya Pradesh...................................................................44

3. Rohtash v State of Haryana, 2013.................................................................................45

4. Union of India v Prafulla...............................................................................................46

K Moidu v. State of Kerala, Madras HC..............................................................................47

By Magistrate in Warrant Cases..........................................................................................51

1. Noor Khan v. State of Rajasthan...................................................................................51

2. Sanjay Gandhi v. Union of India...................................................................................53

3. Narayan Rao v. State of Andhra Pradesh......................................................................53

Omkar Singh v. State of UP.................................................................................................54

Bail...........................................................................................................................................55

1. Sundeep Kumar Bafna v. State of Maharashtra............................................................55

2. State through CBI v. Amar Mani Tripathi....................................................................57

3. Shivaji Sahebrao Bobde & Anr v. State of Maharashtra..............................................58

4. Sanjay Chandra v. CBI, 2011, Supremw Court............................................................59

5. Tahsildar Singh v. State of UP (Only this part was discussed)Clearly not bail case....61

Anticipatory Bail: imminence of being arrested......................................................................62

1. Gurubaksh Singh Sibbia v. State of Punjab..................................................................63

1. Belief not fear........................................................................................................65

2. Court to apply own mind.......................................................................................66

3. Filing of FIR not compulsory................................................................................66

4. If FIR filed, ya ya...................................................................................................66

5. After arrest – nope.................................................................................................66

2. Siddharam Satlingappa Mhetre v. State of Maharashtra...............................................67

Charge- Section 211-224..........................................................................................................69

Sentencing................................................................................................................................71

1. Uday Bhan v State.........................................................................................................71

2. State Of Punjab v. Saurabh Bakshi...............................................................................72

3. Rajesh v State of Kerala................................................................................................73

4. Raj Bhala v State of Haryana- abetment to suicide.......................................................73

5. Attorney General v Lichma Devi..................................................................................75

A. Not mentioned in the Jail Manual..........................................................................75

B. Would be violative of Art. 21 if Jail manual is so amended..................................75

C. Barbaric crime does not have to be visited with a barbaric penalty such as public
hanging.............................................................................................................................75
 ARREST

1. DK BASU V. STATE OF WEST BENGAL

35. In addition to the statutory and constitutional requirements to which we have made a
reference, we are of the view that it would be useful and effective to structure appropriate
machinery for contemporaneous recording and notification of all cases of arrest and
detention to bring in transparency and accountability. It is desirable that the officer
arresting a person should prepare a memo of his arrest at the time of arrest in the
presence of at least one witness who may be a member of the family of the arrestee or a
respectable person of the locality from where the arrest is made. The date and time of
arrest shall be recorded in the memo which must also be counter signed by the arrestee.

36. We, therefore, consider it appropriate to issue the following requirements to be followed
in all cases of arrest or detention till legal provisions are made in that behalf as preventive
measures:

(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee
should bear accurate, visible and clear identification and name tags with their
designations. The particulars of all such police personnel who handle interrogation of the
arrestee must be recorded in a register.

(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of
arrest at the time of arrest and such memo shall be attested by atleast one witness, who
may be either a member of the family of the arrestee or a respectable person of the locality
from where the arrest is made. It shall also be counter signed by the arrestee and shall
contain the time and date of arrest.

(3) A person who has been arrested or detained and is being held in custody in a police
station or interrogation center or other lock-up, shall be entitled to have one friend or
relative or other person known to him or having interest in his welfare being informed, as
soon as practicable, that he has been arrested and is being detained at the particular place,
unless the attesting witness of the memo of arrest is himself such a friend or a relative of the
arrestee.

(4) The time, place of arrest and venue of custody of an arrestee must be notified by the
police where the next friend or relative of the arrestee lives outside the district or town
through the Legal Aid Organisation in the District and the police station of the area
concerned telegraphically within a period of 8 to 12 hours after the arrest.

(5) The person arrested must be made aware of this right to have someone informed of his
arrest or detention as soon as he is put under arrest or is detained.

(6) An entry must be made in the diary at the place of detention regarding the arrest of the
person which shall also disclose the name of the next friend of the person who has been
informed of the arrest and the names and particulars of the police officials in whose custody
the arrestee is.

(7) The arrestee should, where he so requests, be also examined at the time of his arrest
and major and minor injuries, if any present on his/her body, must be recorded at that
time. The "Inspection Memo" must be signed both by the arrestee and the police officer
effecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by a trained doctor every 48
hours during his detention in custody by a doctor on the panel of approved doctors appointed
by Director, Health Services of the concerned State or Union Territory. Director, Health
Services should prepare such a penal for all Tehsils and Districts as well.

(9) Copies of all the documents including the memo of arrest, referred to above, should be
sent to the illaqa Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not
throughout the interrogation.

(11) A police control room should be provided at all 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.

37. Failure to comply with the requirements hereinabove mentioned shall apart from
rendering the concerned official liable for departmental action, also render him liable to be
punished for contempt of court and the proceedings for contempt of court may be instituted
in any High Court of the country, having territorial jurisdiction over the matter.

2. JITENDRA SINGH @ BABBOO SINGH & ANR VS STATE OF U.P

Attention may be drawn to Section 41B of the Code which requires a police officer making
an arrest to prepare a memorandum of arrest which shall be 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. The police officer is also mandated to inform the
arrested person, if the memorandum of arrest is not 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.

Every police officer making an arrest is also obliged to inform the arrested person of his
rights including the full particulars of the offence for which he has been arrested or other
grounds for such arrest, the right to a counsel of his choice and the right that the police
inform his friend, relative or such other person of the arrest.

When any person is arrested, it is obligatory for the arresting authority to ensure that he is
examined by a medical officer in the service of the Government or by a registered
medical practitioner. The medical officer or registered medical practitioner is mandated
to prepare a record of such examination including any injury or mark of violence on the
person arrested. However, 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.

49. A Juvenile Justice Board is constituted under Section 6 of the Act to deal exclusively
with all proceedings in respect of a juvenile in conflict with law. When a juvenile charged
with an offence is produced before a Juvenile Justice Board, it is required to hold an inquiry
(not a trial) and pass such orders as it deems fit in connection with the juvenile (Section
14 of the Act).

50. A juvenile or a child in conflict with law cannot be kept in jail but may be temporarily
received in an Observation Home during the pendency of any inquiry against him
(Section 8 of the Act). If the result of the inquiry is against him, the said juvenile may be
received for reception and rehabilitation in a Special Home (Section 9 of the Act). The
maximum period for reception and rehabilitation in a Special Home is three years (Section
15 of the Act). Even this, in terms of Article 37 of the Convention on the Rights of the Child,
shall be a measure of last resort.

51. The provision dealing with bail (Section 12 of the Act) places the burden for denying bail
on the prosecution. Ordinarily, a juvenile in conflict with law shall be released on bail, but
he may not be so released if there appear reasonable grounds for believing that the
release is likely to bring him into association with any known criminal or expose him to
moral, physical or psychological danger or that his release would defeat the ends of
justice.

52. Orders that may be passed by a Juvenile Justice Board against a juvenile, if it is satisfied
that he has committed an offence, are mentioned in Section 15 of the Act. One of the orders
that may be passed, as mentioned above, is for his reception and rehabilitation in a Special
Home for a period of three years, as a measure of last resort.

53. The Rules, particularly Rule 3, provide, inter alia, that in all decisions taken within the
context of administration of justice, the principle of best interests of a juvenile shall be the
primary consideration. What this means is that “the traditional objectives of criminal justice,
that is retribution and repression, must give way to rehabilitative and restorative objectives of
justice.

3. ARNESH KUMAR VS STATE OF BIHAR & ANR

Section 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 -

(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:

(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
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 its satisfaction that such person had committed the offence punishable as
aforesaid. 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. 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.
Law further requires the police officers to record the reasons in writing for not making
the arrest. In pith and core, the police office 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. In fine, 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 (1) of Section 41 of Code of Criminal Procedure.

9. An accused arrested without warrant by the police has the constitutional right Under
Article 22(2) of the Constitution of India and Section  57, Code of Criminal Procedure
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 Code of Criminal Procedure. 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, Code of Criminal
Procedure, he has to be first satisfied that the arrest made is legal and in accordance
with law and all the constitutional rights of the person arrested is 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 condition precedent for
arrest Under Section 41 Code of Criminal Procedure has been satisfied and it is only
thereafter that he will authorise the detention of an accused. The Magistrate before
authorising detention will record its own satisfaction, may be in brief but the said satisfaction
must reflect from its 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 its satisfaction in writing that the Magistrate will
authorise the detention of the accused. In fine, 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.

In all cases where the arrest of a person is not required Under Section  41(1), Code of
Criminal Procedure, the police officer is required to issue notice directing the accused to
appear before him at a specified place and time. Law obliges such an accused to appear
before the police officer and it further mandates that if such an accused complies with the
terms of notice he shall not be arrested, unless for reasons to be recorded, the police office is
of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest
as envisaged Under Section 41 Code of Criminal Procedure has to be complied and shall be
subject to the same scrutiny by the Magistrate as aforesaid.

12. We are of the opinion that if the provisions of Section  41, Code of Criminal Procedure
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 Code of Criminal Procedure for effecting arrest be
discouraged and discontinued.

13. Our endeavour in this judgment is to ensure that police officers do not arrest accused
unnecessarily and Magistrate do not authorise detention casually and mechanically. In order
to ensure what we have observed above, we give the following direction:

(1) All the State Governments to instruct its police officers not to automatically arrest when a case
Under Section 498-A of the Indian Penal Code is registered but to satisfy themselves about the
necessity for arrest under the parameters laid down above flowing from Section  41,
Code of Criminal Procedure;

(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 filed 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  41A of Code of Criminal Procedure 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;

(7) 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 High Court having territorial jurisdiction.

(8) Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned
shall be liable for departmental action by the appropriate High Court.

14. We hasten to add that the directions aforesaid shall not only apply to the cases Under
Section 498-A of the Indian Penal Code 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.

4. JUGAL KISHORE SAMRA V. SENIOR INTELLIGENCE OFFICER

High Court:

9. In the present case, on account of the apprehension of the respondent, the lower Court
permitted the Advocate to be present during the course of interrogation. But the
Advocate was directed not to interfere during the course of interrogation. The purpose of
the respondent requesting the presence of the Advocate is only on account of the
apprehension that the Investigating Officers are likely to apply third degree methods like
physical assault etc., therefore, the learned Sessions Judge passed the impugned order.

10. It is an undisputed fact that the application of third degree method to the accused is
prohibited and interrogation of the accused is a right provided to the Investigating
Officer to elicit certain information regarding the commission of the offence. Though
the Advocate was permitted to be present during the course of interrogation, he was
prevented from interference during the course of interrogation. When the police do not
resort to apply third degree methods, there cannot be any problem for them to interrogate the
respondent to elicit necessary information relating to the above crime in the presence of his
Advocate.

Supreme Court:

27. We may, however, at this stage refer to another decision of this Court in D.K. Basu v.
State of West Bengal. In this case, the Court, extensively considered the issues of arrest or
detention in the backdrop of Articles 21, 22 and 32 of the Constitution and made a number of
directions to be followed as preventive measures in all cases of arrest or detention till legal
provisions are made in that behalf. The direction at serial number 10 in paragraph 35 is as
follows:

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout
the interrogation.

28. Strictly speaking the aforesaid direction does not apply to the case of the Respondent,
because he being on bail cannot be described as an arrestee. But, it is stated on behalf of the
Respondent that he suffers from heart disease and on going to the DRI office, in pursuance to
the summons issued by the authorities, he had suffered a heart attack. It is also alleged that
his brother was subjected to torture and the Respondent himself was threatened with third
degree methods. The medical condition of the Respondent was accepted by the Metropolitan
Sessions Judge and that forms one of the grounds for grant of anticipatory bail to him.
Taking a cue, therefore, from the direction made in DK Basu and having regard to the
special facts and circumstances of the case, we deem it appropriate to direct 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.

4. CHRISTIAN COMMUNITY WELFARE V STATE OF MAHARASHTRA

Mrs. Bharati S. Khandhar v. Shri. Maruti Govind Jadhav, Bombay HC decision-

In sub-para (vii) the High Court has directed the State Government to issue instructions in the
following terms :

"(vii) The State Government should issue instructions immediately in unequivocal and
unambiguous terms to all concerned that no female persons shall be detained or arrested
without the presence of lady constable and in no case, after sunset and before sun-rise;"

9. Herein we notice the mandate issued by the High Court prevents the Police from arresting
a lady without the presence of a lady constable. Said direction also prohibits the arrest of a
lady after sunset and before sunrise under any circumstances. While we do agree with the
object behind the direction issued by the High Court in Clause (vii) of operative part of its
judgment, we think a strict compliance of the said direction, in a given circumstance, would
cause practical difficulties to the investigating agency and might even give room for evading
the process of law by unscrupulous accused. While it is necessary to protect the female
sought to be arrested by the Police from Police misdeeds, it may not be always possible
and practical to have the presence of a lady constable when the necessity for such arrest
arises, therefore, we think this direction issued requires some modification without
disturbing the object behind the same. We think the object will be served if a direction is
issued to the arresting authority that while arresting a female person, all efforts should
be made to keep a lady constable present but in circumstances where the arresting
officers is reasonably satisfied that such presence of a lady constable is not available or
possible and/or the delay in arresting caused by securing the presence of a lady
constable would impede the course of investigation such arresting officer for reasons to
be recorded either before the arrest or immediately after the arrest be permitted to
arrest a female person for lawful reasons at any time of the day or night depending on
the circumstances of the case even that without the presence of a lady constable.

5. M C ABRAHIM V. STATE OF MAHARASHTRA

 Section 41 of the Code of Criminal Procedure provides for arrest by a police officer without
an order from a Magistrate and without a warrant.

The section gives discretion to the police officer who may, without an order from a
Magistrate and even without a warrant, arrest any person in the situations enumerated in that
section. It is open to him, in the course of investigation, to arrest any person who has been
concerned with any cognizable offence or against whom reasonable complaint has been
made or credible information has been received, or a reasonable suspicion exists of his
having been so concerned. Obviously, he is not expected to act in a mechanical manner and
in all cases to arrest the accused as soon as the report is lodged. In appropriate cases, after
some investigation, the investigating officer may make up his mind as to whether it is
necessary to arrest the accused person. At that stage the Court has no role to play. Since
the power is discretionary, a police officer is not always bound to arrest an accused even
if the allegation against him is of having committed a cognizable offence. Since an arrest
is in the nature of an encroachment on the liberty of the subject and does affect the
reputation and status of the citizen, the power has to be cautiously exercised. It depends
inter alia upon the nature of the offence alleged and the type of persons who are accused
of having committed the cognizable offence. Obviously, the power has to be exercised
with caution and circumspection.

In the instant case the appellants had not been arrested. It appears that the result of the
investigation showed that no amount had been defalcated. We are here not concerned with
the correctness of the conclusion that the investigating officer may have reached. What is,
however, significant is that the investigating officer did not consider it necessary, having
regard to all the facts and circumstances of the case, to arrest the accused. In such a case there
was no justification for the High Court to direct the State to arrest the appellants against
whom the first information report was lodged, as it amounted to unjustified interference in
the investigation of the case.

7. DELHI JUDICIAL SERVICE, TIZ HAZARI V. STATE

A Magistrate, Judge or any other Judicial Officer is liable to criminal prosecution for an
offence like any other citizen but in view of the paramount necessity of preserving the
independence of judiciary and at the same time ensuring that infractions of law are properly
investigated, we think that the following guidelines should be followed:

(A) If a judicial officer is to be arrested for some offence, it should be done under intimation
to the District Judge or the High Court as the case may be.

(B) If facts and circumstances necessitate the immediate arrest of a judicial officer of the
subordinate judiciary, a technical or formal arrest may be effected.

(C) The facts of such arrest should be immediately communicated to the District and
Sessions Judge of the concerned District and the Chief Justice of the High Court.

(D) The Judicial Officer so arrested shall not be taken to a police station, without the prior
order or directions of the District & Sessions Judge of the concerned District, if
available.

(E) Immediate facilities shall be provided to the Judicial Officer to communication with his
family members, legal advisers and Judicial Officers, including the District & Sessions
Judge.

(F) No statement of a Judicial Officer who is under arrest be recorded nor any panchnama
be drawn up nor any medical tests be conducted except in the presence of the Legal
Adviser of the Judicial Officer concerned or another Judicial Office of equal or higher
rank, it' available.

(G) There should be no handcuffing of a Judicial Officer. If, however, violent resistance to
arrest is offered or there is imminent need to effect physical arrest in order to avert
danger to life and limb, the person resisting arrest may be over-powered and handcuffed.
In such case, immediate report shall be made to the District & Sessions Judge concerned
and also to the Chief Justice of the High Court.

But the burden would be on the Police to establish necessity for effecting physical arrest
and handcuffing the Judicial Officer and if it be established that the physical arrest and
handcuffing of the Judicial Officer was unjustified, the Police Officers causing or responsible
for such arrest and handcuffing would be guilty of misconduct and would also be
personally liable for compensation and/or damages as may be summarily determined by
the High Court.

8. THOGO RANI V. STATE OF ORISSA, 2003

Whether an adverse opinion be deduced by refusal to take DNA testing was answered in the
present case in the affirmative. Under Section 53, a police officer of a rank above that of a
Sub-Inspector may request a registered medical officer to carry out the same during the
course of investigation and later report the same under Section 173 to the officer. If, despite
the order of a Court, the accused after arrest still refuses DNA testing, such a view may be
found under Section 114 of the Evidence Act. Such would not violate the right of privacy
culled out of Article 21 of the Constitution as reasonable restrictions apply against the same
nor even the right against self-incrimination under Article 20(3) whereby a “testimonial
compulsion” must be present.

SECTION 41(1)(G)
Section 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--

(g) who has been concerned in, or against whom a reasonable complaint has been made, or
credible information has been received, or a reasonable suspicion exists, of his having
been concerned in, any act committed at any place out of India which, if committed in
India, would have been punishable as an offence, and for which he is, under any law
relating to extradition, or otherwise, liable to be apprehended or detained in custody in
India.

1. BHAVESH JAYANTI V STATE OF MAHARASHTRA

Arrest of a fugitive criminal can be made at the instance of the Central Government only
when a request to that effect is received from the foreign country and not otherwise. Arrest of
a fugitive criminal must be effected in terms of the provisions of the Extradition Act and a
person wanted for an offence in a foreign jurisdiction may be arrested on fulfilment of the
following conditions:

1. That the offence should be counted as one by Indian Law as well and

2. That the person must be liable to be arrested in India either under any law relating to
extradition or otherwise.

It is, however, beyond any doubt that the power is exercised by the C.B.I. or a police officer
to arrest a person, although no warrant is issued in terms of Section 41(1)(g) of the Code of
Criminal Procedure. It pre-supposes satisfaction of a police officer to arrest a person, if
he has been concerned in, or against whom a reasonable complaint has been made, or
credible information has been received in, any act committed at any place out of India
which, if committed in India, would have been punishable as an offence, and for which he is,
under any law relating to extradition, or otherwise, liable to be apprehended or detained in
India.

However, the CBI website states that in case an action is taken under S. 41(1)(g), the matter
must be immediately referred to the Interpol Wing for onward transmission to the
Government of India to take a decision or otherwise.

In terms of the aforementioned provisions, sanction of the Central Government is

contemplated. We may, however, place on record that strictly construed in a case involving
extradition, Section 41(g) of the Code may not have any application.

It is sought to be clarified that Section 41(g) of the Code of Criminal Procedure clearly

contemplates the power of the Police to arrest under "any law relating to Extradition" thereby
contemplating the exercise of powers subject to the provisions of the Extradition Act. Thus
the provisions of the Code of Criminal Procedure are subject to those in the Extradition
Act.

2. MOHAMMED ZUBAIR V STATE [MADRAS HIGH COURT]

The point for consideration arises out is whether the initiation of proceedings under
Sec.41(1)(g) of Cr.P.C  is maintainable at the receipt of Red Corner Notice.

Sec.41(1)(g) is applicable only on the condition that the offence committed at any place out
of India should be counted as an offence by Indian Law. This provision cannot be pressed
into service when there is a Red Corner Notice. As stated earlier, the consequence of the red
corner notice is that the requesting country may make deportation request or to take
follow up action with regard to the arrest of fugitive criminals. However, the main
criteria is that the extradition proceedings has to follow. In that event, the respondent is to
follow the procedure prescribed for a Magistrate for issuance of warrant in holding the
enquiry into the matter on receipt of requisition of the Central Government. Under Sec.
9 of the Act, the Magistrate may issue a warrant of arrest. Therefore, a formal request is yet
to be made by the Srilankan Government for the extradition of the petitioner and registration
of First Information Report under Sec.41(1)(g) of Cr.P.C is not proper.
 ARREST V. CUSTODY

1. PRAGYA SINGH V STATE OF MAHARASHTRA

 In para 11 of the affidavit it is mentioned by the appellant that during interrogation the
police had asked Bhim Bhai Pasricha to beat her with sticks etc. This would show that
Bhim Bhai Pasricha (some dude) was with the appellant. If a person is arrested, the
person is isolated from others and is completely deprived of his/her personal
liberty.
A person who is arrested and kept in police custody is not provided any companion.

The averments in the affidavit would show that disciple Bhim Bhai Pasricha was all along
with the appellant, which would negate her case that she was illegally arrested and detained
by the police.

What is important is that in para 17 of the affidavit, the appellant has clearly and expressly
averred as under: -

"I say that no female constable was by my side either in Hotel Rajdoot or in either of the two
hospitals".

 This statement of appellant is very important in as much as this clearly shows that the
appellant was alone and was not under custody or detention of police. If this was a
case of arrest of the appellant, a police constable would have always been
around, which is not the case.
 The letter dated November 20, 2008 of Doctor P.K. Solanki of the chest clinic shows
that the appellant was brought to the hospital by Bhim Bhai Pasricha, described
as a relative of the appellant. If the appellant was under arrest she would have
been brought to the hospital by the police and doctor would have so recorded it,
in medical papers which is not the case. The doctor only records that a Police
Officer merely had called up for the same patient i.e. made enquiries about the
condition of the patient
 The above facts would clearly show that there was no arrest of the appellant on
October 10, 2008 as is sought to be claimed now. The appellant was called for
interrogation which is not equivalent to her arrest and detention. All throughout
between October 10, 2008 and prior to her arrest on October 23, 2008 her disciple,
Bhim Bhai Pasricha was with her. The averments made by the appellant indicate that
the appellant had stayed in three different lodges and was admitted in two different
hospitals along with Bhim Bhai Pasricha. Her own specific case is that there was no
female Police with her either in the lodges or in the hospitals which cannot be
ignored. After detailed discussion of the  materials on the record, both, the Trial Court
and High Court have held that the case of her arrest on October 10, 2008 is not made
out by the appellant. In paragraph 19, the appellant herself has stated that she "was
finally arrested on 23.10.2008 and produced before the learned Chief Judicial
Magistrate, Nasik on 24.10.2008".
 INVESTIGATION

1. FADDI V STATE OF WEST BENGAL

When FIR is filed by the accused, can it be used against him u/s 162 of CrPC and S. 21 & 25
of IEA?

This report is not a confessional statement of the appellant. He states nothing which
would go to show that he was the murderer of the boy. It is the usual first information
report an aggrieved person or someone on his behalf lodges against the alleged
murderers. The learned Sessions Judge and the High Court considered the appellant's
statements in this report which went to explain his separation from Gulab on account of the
conduct of Ramle and others and came to the conclusion that those statements were false.
This was in a way justified as the burden lay on the appellant to account for the
disappearance of Gulab when the prosecution evidence showed that the appellant had taken
Gulab with him. Besides, what the appellant had stated in the report, he had given no
explanation for the disappearance. Of course, he had denied that he took Gulab with him. The
evidence about that aspect of the case consists of the statement of Ramle, Shyamlal and
Bhagwan Singh which have been accepted by the Courts below.

The report was neither confession of the accused nor a statement made to a police officer
during the course of investigation. Section 25 of the Evidence Act and s. 162 of the Code of
Criminal Procedure do not bar its admissibility. The report was an admission by the
accused of certain facts which had a bearing on the question to be determined by the
Court viz., how and by whom the murder was committed or whether the accused's
statement in court denying the correctness of certain statements of the prosecution
witnesses was correct or not. Admissions are admissible in evidence under s. 21 of the
Evidence admission of an accused can be proved against him. Section 17 defines an
admission to be a statement, oral or documentary, which suggests any inference as to any fact
in issue or relevant fact, and which is made by any of the persons, and under the
circumstances, thereafter mentioned, in the Act. Section 21 provides that admissions are
relevant and may be proved as against a person who makes them. Illustrations (c), (d) and (e)
to s. 21 are of the circumstances in which an accused could prove his own admissions which
go in his favour in view of the exceptions mentioned in s. 21 to the provision that admissions
could not be proved by the person who makes them. It is therefore clear that admissions of an
accused can be proved against him.

However, a confessional first information report cannot be used against the maker when
he be an accused and necessarily cannot be used against a co-accused.

2. APREN JOSEPH V. STATE OF KERALA

The appellants contended that the first information report was lodged after 'a very long delay
and this in the circumstances of the case is fatal to the prosecution.

A first information report is a report relating to the commission of an offence given to the
police and recorded by it under s. 154, Cr. P.C. As observed by the Privy Council in H.E. v.
Khwaja(1) the receipt and recording of information report by the police is not a
condition precedent to the setting in motion of a criminal investigation. Nor does the
statute provide that such information report can only be made by an eye witness. First
information report under s. 154 is not even considered a substantive piece of evidence. It can
only be used to corroborate or contradict the informant's evidence in court. But this
information when recorded is the basis of the case set up by the informant. It is very
useful if recorded before there is time and opportunity to embellish or before the
informant's memory fades. Undue or unreasonable delay in lodging the F.I.R.,
therefore, inevitably gives rise to suspicion which puts the court on guard to look for the
possible motive and the explanation for the delay and consider its effect on the
trustworthiness or otherwise of the prosecution version. In our opinion, no duration of
time in the abstract can be fixed as reasonably for giving information of a crime to the
police, the question of reasonable time being a matter for determination by the court in
each case. Mere delay in lodging the first information report with the police is, therefore, not
necessarily, as a matter of law, fatal to the prosecution. The effect of delay in doing so in
the light of the plausibility of the explanation for the coming for such delay accordingly
must fall for consideration on all the facts and circumstances of a given case.

3. MIYANA HASAN V STATE OF GUJARAT

There were 2 FIRs: which one should be regarded as the true FIR?

Section 154: FIR

There can be only one complaint of a complainant and only one complaint can be used
to corroborate the evidence of the complainant. It is only that complaint which is
reduced to writing under Section 154 Criminal Procedure Code, that can be used for
purpose of corroboration. If the police officer in charge of the police station records the
whole complaint and subsequently enters the whole statement in the prescribed book,
the entry would not be a complaint, because what is to be entered in the prescribed
book is to be done after the complaint has been reduced to writing. The first stage is to
reduce the complaint to writing and the second stage is to enter the substance of the
complaint in the prescribed book. Even if the whole complaint is entered in the
prescribed book, that would not become a complaint . Ex. 51 cannot be regarded as a
complaint reduced to writing under Section 154, Criminal Procedure Code, even though in
one of the columns the whole statement of the complainant has been entered. It is only Ex. 7
which can be regarded as the complaint. But, unfortunately, Ex. 7 has not been proved in the
manner required by Section 67 of the Evidence Act.

4. STATE OF BIHAR V. PP SHARMA

Another crucial question is whether the High Court, in exercise of its extra-ordinary
jurisdiction under Art.226 of the Constitution, would interfere and quash the charge-sheet.
The High Court found that the documents relied on by the respondents/accused were not
denied by the State by filing the Counter Affidavit. Therefore, they must be deemed to have
been admitted. On that premise the High Court found that there is no prima facie case was
made out on merits and chances of ultimate conviction is "bleak". The court is not passive
spectator in the drama of illegalities and injustice. The inherent power of the court under Art.
226 of the Constitution of India is permitted to be resorted to. When the documents relied on
by the respondents "demonstrate that no prima facie offence is made out on the face value of
those materials, then the criminal prosecution should not be allowed to continue and so it
should be quashed", and "in such a situation and circumstances the petitioners who had got a
right under the Constitution for the protection of their liberty have rightly approached this
Court and this court in these circumstances has no option but to grant the relief by quashing
the F.I.R. and both the charge-sheets". Accordingly it quashed them. If this decision is
upheld, in my considered view startling and disastrous consequence would ensue. Quashing
the chargesheet even before cognizance is taken by a criminal court amounts to "killing
a still born child'. Till the criminal court takes cognizance of the offence there is no
criminal proceedings pending. I am not allowing the appeals on the ground that
alternative remedies provided by the Code as a bar. 

Delay feeds injustice to social order and entertaining writ petitions would encourage to delay
the trial by diverse tricks. It is not to suggest that under no circumstances a writ petition
should be entertained. As was rightly done by Rajasthan High Court in this case at the
instance of the directors of the company, wisdom lies to keep the hands back and relegate the
accused to pursue the remedy under the Code. In several cases this Court quashed the
criminal proceeding on the sole ground of delay. 

The High Court has taken short course "in annihilating the still born prosecution" by
going into the merits on the plea of proof of prima facie case and adverted to those facts
and gave findings on merits. Grossest error of law has been committed by the High
Court in making pre-trial of a criminal case in exercising its extraordinary jurisdiction
under Art.226. After the charge- sheet was filed, the F.I.R. no longer remains sheet
achor. The charge-sheet and the evidence placed in support thereof from the base to take or
refuse to take cognizance by the competent Court. It is not the case that no offence has been
made out in the charge-sheets and the First Information Report. It is, therefore, not necessary
to consider all the decisions dealing with the scope of the power of the High Court either
under s. 482 Cr. P.C. or Art. 226 of the Constitution to quash the First Information Report.

5. LALITA KUMARI V. STATE OF UTTAR PRADESH

The important issue which arises for consideration in the referred matter is whether “a
police officer is bound to register a First Information Report (FIR) upon receiving any
information relating to commission of a cognizable offence under Section 154 of the
Code of Criminal Procedure, 1973 (in short ‘the Code’) or the police officer has the
power to conduct a “preliminary inquiry” in order to test the veracity of such information
before registering the same?”

The Court first talks about Section 154, 156 and 157.

154. Information in cognizable cases.— (1) Every information relating to the commission of

a cognizable offence, if 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; and
every such information, whether given in writing or reduced to writing as aforesaid, 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.

(2) A copy of the information as recorded under sub- section (1) shall be given forthwith,
free of cost, to the informant.

(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to
record the information referred to in subsection (1) may send the substance of such
information, in writing and by post, to the Superintendent of Police concerned who, if
satisfied that such information discloses the commission of a cognizable offence, shall either
investigate the case himself or direct an investigation to be made by any police officer
subordinate to him, in the manner provided by this Code, and such officer shall have all the
powers of an officer in charge of the police station in relation to that offence.

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

(2) No proceeding of a police officer in any such case shall at any stage be called in question
on the ground that the case was one which such officer was not empowered under this section
to investigate.

(3) Any Magistrate empowered under section 190 may order such an investigation as

above- mentioned.

157. Procedure for investigation: (1) If, from information received or otherwise, an officer
in charge of a police station has reason to suspect the commission of an offence which he is
empowered under Section 156 to investigate, he shall forthwith send a report of the same to a
Magistrate empowered to take cognizance of such offence upon a police report and shall
proceed in person, or shall depute one of his subordinate officers not being below such rank
as the State Government may, by general or special order, prescribe in this behalf, 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:

Provided that-

(a) when information as to the commission of any such offence is given against any person by
name and the case is not of a 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;

(b) if it appears to the officer in charge of a police station that there is no sufficient ground for
entering on an investigation, he shall not investigate the case.
Provided further that 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.

(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub- section (1), the
officer in charge of the police station shall state in his report his reasons for not fully
complying with the requirements of that sub-section, and, in the case mentioned in clause (b)
of the said proviso, the officer shall also forthwith notify to the informant, if any, in such
manner as may be prescribed by the State Government, the fact that he will not investigate
the case or cause it to be investigated.

A plain reading of Section 154(1) of the Code provides that any information relating to the
commission of a cognizable offence if given orally to an officer-in-charge of a police station
shall be reduced into writing by him or under his direction. There is no ambiguity in the
language of Section 154(1) of the Code.

 Consequently, the condition that is sine qua non for recording an FIR under Section 154 of
the Code is that there must be information and that information must disclose a cognizable
offence. If any information disclosing a cognizable offence is led before an officer in charge
of the police station satisfying the requirement of Section 154(1), the said police officer has
no other option except to enter the substance thereof in the prescribed form, that is to say,
to register a case on the basis of such information. The provision of Section 154 of the Code
is mandatory and the concerned officer is duty bound to register the case on the basis of
information disclosing a cognizable offence. Thus, the plain words of Section 154(1) of the
Code have to be given their literal meaning.

Investigation of offences and prosecution of offenders are the duties of the State. For
“cognizable offences”, a duty has been cast upon the police to register FIR and to
conduct investigation except as otherwise permitted specifically under Section 157 of the
Code. If a discretion, option or latitude is allowed to the police in the matter of
registration of FIRs, it can have serious consequences on the public order situation and
can also adversely affect the rights of the victims including violating their fundamental
right to equality.

Therefore, the context in which the word “shall” appears in Section 154(1) of the Code, the
object for which it has been used and the consequences that will follow from the infringement
of the direction to register FIRs, all these factors clearly show that the word “shall” used
in Section 154(1) needs to be given its ordinary meaning of being of “mandatory”
character. The provisions of Section 154(1) of the Code, read in the light of the statutory
scheme, do not admit of conferring any discretion on the officer in-charge of the police
station for embarking upon a preliminary inquiry prior to the registration of an FIR. It is
settled position of law that if the provision is unambiguous and the legislative intent is clear,
the court need not call into it any other rules of construction.
It is relevant to mention that Section 39 of the Code casts a statutory duty on every person to
inform about commission of certain offences which includes offences covered by Sections
121 to 126, 302, 64-A, 382, 392 etc., of the IPC. It would be incongruous to suggest that
though it is the duty of every citizen to inform about commission of an offence, but it is not
obligatory on the officer-incharge of a Police Station to register the report. The word ‘shall’
occurring in Section 39 of the Code has to be given the same meaning as the word ‘shall’
occurring in Section 154(1) of the Code.

General Diary and FIR

The First Information Report is in fact the “information” that is received first in point of time,
which is either given in writing or is reduced to writing. It is not the “substance” of it, which
is to be entered in the diary prescribed by the State Government. The term ‘General Diary’
(also called as ‘Station Diary’ or ‘Daily Diary’ in some States) is maintained not
under Section 154 of the Code but under the provisions of Section 44 of the Police Act, 1861
in the States to which it applies, or under the respective provisions of the Police Act(s)
applicable to a State or under the Police Manual of a State, as the case may be.

It is thus clear that registration of FIR is to be done in a book called FIR book or FIR
Register. Of course, in addition, the gist of the FIR or the substance of the FIR may also be
mentioned simultaneously in the General Diary as mandated in the respective Police
Act or Rules, as the case may be, under the relevant State provisions.

The General Diary is a record of all important transactions/events taking place in a police
station, including departure and arrival of police staff, handing over or taking over of
charge, arrest of a person, details of law and order duties, visit of senior officers etc. It is
in this context that gist or substance of each FIR being registered in the police station is
also mentioned in the General Diary since registration of FIR also happens to be a very
important event in the police station. Since General Diary is a record that is maintained
chronologically on day-to-day basis (on each day, starting with new number 1), the General
Diary entry reference is also mentioned simultaneously in the FIR Book, while FIR number is
mentioned in the General Diary entry since both of these are prepared simultaneously.

56) It is relevant to point out that FIR Book is maintained with its number given on an annual
basis. This means that each FIR has a unique annual number given to it. This is on similar
lines as the Case Numbers given in courts. Due to this reason, it is possible to keep a strict
control and track over the registration of FIRs by the supervisory police officers and by
the courts, wherever necessary. Copy of each FIR is sent to the superior officers and to the
concerned Judicial Magistrate.

57) On the other hand, General Diary contains a huge number of other details of the
proceedings of each day. Copy of General Diary is not sent to the Judicial Magistrate
having jurisdiction over the police station, though its copy is sent to a superior police
officer. Thus, it is not possible to keep strict control of each and every FIR recorded in the
General Diary by superior police officers and/or the court in view of enormous amount of
other details mentioned therein and the numbers changing every day.
58) The signature of the complainant is obtained in the FIR Book as and when the
complaint is given to the police station. On the other hand, there is no such requirement of
obtaining signature of the complainant in the general diary. Moreover, at times, the
complaint given may consist of large number of pages, in which case it is only the gist of the
complaint which is to be recorded in the General Diary and not the full complaint. This does
not fit in with the suggestion that what is recorded in General Diary should be considered
to be the fulfillment/compliance of the requirement of Section 154 of registration of
FIR. In fact, the usual practice is to record the complete complaint in the FIR book (or annex
it with the FIR form) but record only about one or two paragraphs (gist of the information) in
the General Diary.

It is thus unequivocally clear that registration of FIR is mandatory and also that it is to be
recorded in the FIR Book by giving a unique annual number to each FIR to enable strict
tracking of each and every registered FIR by the superior police officers as well as by the
competent court to which copies of each FIR are required to be sent.

Information

The legislature has consciously used the expression “information” in Section 154(1) of the
Code as against the expression used in Section 41(1)(a) and (g) where the expression used for
arresting a person without warrant is “reasonable complaint” or “credible information”. The
expression under Section 154(1) of the Code is not qualified by the prefix “reasonable”
or “credible”. The non-qualification of the word “information” in Section 154(1) unlike
in Section 41(1)(a) and (g) 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.

Reiteration: At the stage of registration of a crime or a case on the basis of the information
disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the
Code, the police officer concerned cannot embark upon an inquiry as to whether the
information laid by the informant is reliable and genuine or otherwise and refuse to register a
case on the ground that the information is not reliable or credible. On the other hand, the
officer in charge of a police station is statutorily obliged to register a case and then to proceed
with the investigation if he has reason to suspect the commission of an offence which he is
empowered under Section 156 of the Code to investigate, subject to the proviso to Section
157 thereof. In case an officer in charge of a police station refuses to exercise the jurisdiction
vested in him and to register a case on the information of a cognizable offence reported and
thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can
send the substance of the information in writing and by post to the Superintendent of Police
concerned who if satisfied that the information forwarded to him discloses a cognizable
offence, should either investigate the case himself or direct an investigation to be made by
any police officer subordinate to him in the manner provided by sub- section (3) of Section
154 of the Code.
The 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.

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.

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.

FINALLY, THE CONCLUSION!

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.

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.

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.

SATYANARAYANA V. SANDEEP ENTERPRISES

Though complaint filed for offence under Section 138 of N.I. Act is akin to first information
covered by Section 154 of Cr.P.C. unlike FIR, which is not substantive piece of evidence,
complaint is a substantive piece of evidence which can be used for corroborating or
contradicting the complaint, whether it is marked as exhibit or not. This is because,
complaint presented under Section 200 of Cr.P.C. is akin to plaint or pleadings in civil
proceedings since proceedings under N.I. Act are practically admixture of civil and
criminal in nature. As submitted by learned Amicus Curiae placing reliance on the decisions
of the Supreme Court in the case of BISHWANATH PRASAD AND ORS. v.
DWARAKANATH PRASAD AND ORS. and TIRU JOHN v. THE RETURNING
OFFICER AND ORS. , any admission made in the complaint is substantive evidence proprio
vigore and an admission, if clearly and unequivocally made, is the best evidence against the
party making it though not conclusive and for this purpose, the opposite party need not invite
the attention of the complainant, who made admission in the complaint.
 COMPLAINANT BEING PART OF INVESTIGATION

1. MEGHA SINGH V STATE OF HARYANA

We have noted another disturbing feature in this case. PW-3, Siri Chand, head Constable
arrested the accused and on search being conducted by him a pistol and the cartridges were
recovered from the accused. It was on his complaint a formal first information report was
lodged and the case was initiated. He being complainant should not have proceeded with
the investigation of the case. But it appears to us that he was not only the complainant
in the case but he carried on with the investigation and examined witnesses
under Section 161, Cr.P.C. Such practice, to say the least, should not be resorted to so that
there may not be any occasion to suspect fair and impartial investigation.

2. SURENDER @ KALA V. STATE OF HARYANA

Court distinguished this case from Megha Singh.

In Megha Singh the accused was tried under the provisions of the TADA Act and the Arms
Act for being in possession of a country made pistol and three live cartridges. The
prosecution did not examine any independent witness and simply relied upon the
testimony of PW3 Investigating Officer. There was also discrepancy in the depositions
of PW3 11, Investigating Officer and another police person namely PW2.

In Megha Singh, the search was not conducted in the presence of a Gazetted Officer, as
is required in a case under the Act. In the instant case the search of the appellant was
conducted in the presence of and under the instructions of PW4. The extracts of
depositions of other prosecution witnesses show that it was not PW6 S.I. Satbir Singh
alone who was involved in the investigation. In our view the principle laid down in Megha
Singh and followed in State vs. Rajangam does not get attracted in the present matter.
Relevant to note that this was not even a ground projected in support of the case of the
appellant and does not find any reference in the judgment under appeal. We therefore reject
the submission.

3. STATE V. RAJANGUM
The crime was registered by P.W.6 and that the case was also investigated by him. The crime
ought to have been investigated by another independent officer and not by P.W.6. The High
Court found substance in this submission made on behalf of the accused and acquitted the
accused. Supreme Court sided with the High Court’s decision.

157-159

1. PALA SINGH V. STATE OF PUNJAB

Shri Kohli strongly criticised the fact that the occurrence report contemplated by S.
157, Cr.P.C. was sent to the magistrate concerned very late. Indeed, this challenge, like the
argument of interpolation and belated despatch of the inquest report, was developed for the
purpose of showing that the investigation was not just, fair and forthright and, therefore, the
prosecution case must be looked at with great suspicion. This argument is also unacceptable.
No doubt, the report reached the magistrate at about 6 p.m. Section 157, Cr. P.C.
requires such report to be sent forthwith by the police officer concerned to a magistrate
empowered to take cognisance of such offence. This is really designed to keep the
magistrate informed of the investigation of such cognizable offence so as to be able to
control the investigation and if necessary to give appropriate direction under s. 159. But
when we find in this case that the F.I.R. was actually recorded without delay and the
investigation started on the basis of that F.I.R. and there is no other infirmity brought
to our notice, then, however improper or objectionable the delayed receipt of the report
by the magistrate concerned it cannot by itself justify the conclusion that the
investigation was tainted and the prosecution insupportable. It is not the appellants case
that they have been prejudiced by this delay.

2. ALLA CHINNA APPARAO V. STATE

What is required under Section 157(1) of the Code of Criminal Procedure is that if from
information received or otherwise, an officer in charge of a police station has reason to
suspect the commission of an offence which he is empowered under Section 156 to
investigate, he shall, forthwith send a report of the same to a Magistrate empowered to take
cognizance of such an offence upon a police report. The expression `forthwith' used
in Section 157(1) would undoubtedly mean within a reasonable time and without any
unreasonable delay. In the case on hand, distance from the police station to Magistrate's
court was about 20 to 25 Kms. PW.11 Constable was entrusted with the first information
report by the then Sub-inspector of Police for being made over to the Magistrate. This witness
stated that after handing over the first information report, the Sub-inspector of Police sent
him to the place of occurrence where as per his instructions he stayed till 5 P.M. Later, the
Inspector of Police made over the dead body of the deceased to this witness with instructions
to take the same to the Government Hospital, Guntur, and to hand it over to the hospital
authorities and after handing over the dead body to the hospital authorities, he went to the
Magistrate and delivered the first information report to him at 6 P.M. This witness further
stated that there were only six constables attached to the police station on the relevant date
which goes to show that at the concerned police station there was no full strength of
constables. This apart, it is a matter of common experience that there has been
tremendous rise in the crime resulting into enormous volume of work, but increase in
the police force has not been made in the same proportion. In view of the aforesaid
factors, the expression `forthwith' within the meaning of Section 157(1) obviously
cannot mean that the prosecution is required to explain every hour's delay in sending
the first information report to the Magistrate, of course, the same has to be sent with
reasonable despatch, which would obviously mean within a reasonable possible time in
the circumstances prevailing. Therefore, in our view, the first information report was sent to
the Magistrate with reasonable promptitude and no delay at all was caused in forwarding the
same to the Magistrate. In any view of the matter, even if Magistrate's court was close by and
the first information report reached him within six hours from the time of its lodgment, in
view of the increase in work load, we have no hesitation in saying that even in such a case it
cannot be said that there was any delay at all in forwarding the first information report to the
Magistrate. Thus, we do not find any substance in this submission as, according to us, the
first information report was promptly despatched to the Magistrate and received by him
without any delay whatsoever.

A question that now arises is that where first information report is shown to have actually
been recorded without delay and investigation started on its basis, if any delay is caused in
sending the same to the Magistrate which the prosecution fails to explain by furnishing
reasonable explanation, what would be its effect upon the prosecution case. In our view, ipso
facto the same cannot be taken to be a ground for throwing out the prosecution case if
the same is otherwise trustworthy upon appreciation of evidence which is found to be
credible. However, if it is otherwise, an adverse inference may be drawn against the
prosecution and the same may affect veracity of the prosecution case, more so when
there are circumstances from which an inference can be drawn that there were chances
of manipulation in the first information report by falsely roping in the accused persons
after due deliberations.

NECESSITY TO ANSWER ALL QUESTIONS- SECTION 161

1. NANDANI SATHPATHY V. DANI

Back to the constitutional quintessence invigorating the ban, on self-incrimination. The area
covered by Article 20(3) and Section 161(2) is substantially the same. So much so, we are
inclined to the view, terminological expansion apart, that Section 161(2) of the Cr.P.C. is a
parliamentary gloss on the constitutional clause. The learned Advocate General argued that
Article 20(3), unlike Section 161(1), did not operate at the anterior stages before the case
came to court and the accused's incriminating utterance, previously recorded, was attempted
to be introduced. He relied on some passages in American decisions but, in our
understanding, those passages do not so circumscribe and, on the other hand, the land mark
Miranda v. Arizona 384 US 7 436 (1966) ruling did extend the embargo to police
investigation also. Moreover, Article 20(3), which is our provision, warrants no such
truncation. Such a narrow meaning may emasculate a necessary protection. There are only
two primary queries involved in this clause that seals the lips into permissible silence, (i) Is
the person called upon to testify 'accused of any offence', (ii) Is he being compelled to be
witness against himself? A constitutional provision receives its full semantic range and so it
follows that a wider connotation must be imparted to the expressions 'accused of any offense'
and 'to be witness against himself. The learned Advocate General, influenced by American
decisions rightly agreed that in express terms Section 161(2) of the Code might cover not
merely accusations already registered in police stations but those which are likely to be the
basis for exposing a person to a criminal charge. Indeed, this wider construction, if applicable
to Article 20(3), approximates the constitutional clause to the explicit statement of the
prohibition in Section 161(2). This latter provision meaningfully uses the expression 'expose
himself to a criminal charge'. Obviously, these words mean, not only cases where the person
is already exposed to a criminal charge but also instances which will imminently expose him
to criminal charges. In Article 20(3), the expression 'accused of any offence, must mean
formally accused in praesenti not in future-not even imminently as decisions now stand. The
expression 'to be witness against himself means more than the court process. Any giving
of evidence, any furnishing of information, if likely to have an incriminating impact,
answers the description of being witness against oneself. Not being limited to the
forensic stage by express words in Article  20(3), we have to construe the expression to
apply to every stage where furnishing of information and collection of materials takes
place. That is to say, even the investigation at the police level is embraced by
Article 20(3). This is precisely what Section 161(2) means. That Sub-section relates to
oral examination by police officers and grants immunity at that stage. Briefly, the
Constitution and the Code are coterminous in the protective area. While the Code may
be changed the Constitution is more enduring. Therefore, we have to base our
conclusion not merely upon Section 161(2) but on the more fundamental protection,
although equal in ambit, contained in Article 20(3).

We hold that Section 161 enables the police to examine the accused during investigation.
The prohibitive sweep of Article 20(3) goes back to the stage of police interrogation-
not, as contended, commencing in court only. In our judgment, the provisions of
Article 20(3) and Section 161(1) substantially cover the same area, so far as police
investigations are concerned. The ban on self-accusation and the right to silence, while
one investigation or trial is under way, goes beyond that case and protects the accused
in regard to other offences pending or imminent, which may deter him from voluntary
disclosure of criminatory matter. We are disposed to read 'compelled testimony' as
evidence procured not merely by physical threats or violence but by psychic torture,
atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and
intimidatory methods and the like-not legal penalty for violation. "So, the legal perils
following upon refusal to answer, or answer truthfully, cannot be regarded as compulsion
within the meaning of Article 20(3). The prospect of prosecution may lead to legal tension in
the exercise of a constitutional right, but then, a stance of silence is running a calculated risk.
On the other hand, if there is any mode of pressure, subtle or crude, mental or physical, direct
or indirect, but sufficiently substantial, applied by the policeman for obtaining information
from an accused strongly suggestive of guilt, it becomes 'compelled testimony', violative of
Article 20(3).

69. A police officer is clearly a person in authority. Insistence on answering is a form of

pressure especially in the atmosphere of the police station unless certain safeguards erasing
duress are adhered to. Frequent threats of prosecution if there is failure to answer may take on
the complexion of undue pressure violating Article 20(3). Legal penalty may by itself not
amount to duress but the manner of mentioning it to the victim of interrogation may introduce
an element of tension and tone of command perilously hovering near compulsion.

70. We have explained elaborately and summed up, in substance, what is self-incrimination
or tendency to expose oneself to a criminal charge. It is less than 'relevant' and more than
'confessional'. Irrelevance is impermissible but relevance is licit but when relevant questions
are loaded with guilty inference in the event of an answer being supplied, the tendency to
incriminate springs into existence. We hold further that the accused person cannot be
forced to answer questions merely because the answers thereto are not implicative when
viewed in isolation and confined to that particular case. He is entitled to keep his mouth
shut if the answer sought has a reasonable prospect of exposing him to guilt in some
other accusation actual or imminent, even though the investigation underway is not
with reference to that. We have already explained that in determining the incriminatory
character of an answer the accused is entitled to consider-and the Court while
adjudging will take note of the setting, the totality of circumstances, the equation,
personal and social, which have a bearing on making an answer substantially innocent
but in effect guilty in import. However, fanciful claims, unreasonable apprehensions
and vague possibilities cannot be the hiding ground for an accused person. He is bound
to answer where there is no clear tendency to criminate.

The conspectus of circumstances persuades us to exercise our power under Article 266 read

with Article 136 and Section 401 of Cr.P.C. to make the following direction. We are
satisfied that many of the questions put by the police are not self-incriminatory, remote
apprehensions being wholly irrelevant. To answer is citizen's duty; failure is asking for
conviction. The appellant shall undertake to answer all questions put to her which do
not materially incriminate her in the pending or imminent investigations or
prosecutions. If she claims immunity regarding any questions she will, without
disclosing details, briefly state in which case or offence in the offing makes her
reasonably apprehend self-incrimination by her refused answers. If, after the whole
examination is over, the officer concerned reasonably regards any refusal to answer to
be a wilful violation under pretense of immunity from self-incrimination, he will be free
to prosecute the E alleged offender after studying the refusal to answer in the light of
the principles we have set out. Section 179 I.P.C. should not be unsheathed too
promiscuously and teasingly to tense lay people into vague consternation and covert
compulsion although the proper office of Section 179 I.P.C. is perfectly within the
constitutional limits of Article 20(3).

DOUBLE JEOPARDY: SECTION 300

1. MONICA BEDI V. STATE OF AP

The learned senior counsel submitted that the appellant has been tried and convicted by a
competent court of jurisdiction at Lisbon for being in possession of fake passport and,
therefore, her trial and conviction for possessing the same passport before the C.B.I. Court at
Hyderabad amounts to double jeopardy and in violation of Article 20(2) of the Constitution
of India and as well under Section 300 Cr.P.C. 

The fundamental right guaranteed under Article 20 (2) has its roots in common law maxim
nemo debet bis vexari - a man shall not be brought into danger for one and the same offence
more than once. If a person is charged again for the same offence, he can plead, as a complete
defence, his former conviction, or as it is technically expressed, take the plea of autrefois
convict. This in essence is the common law principle.
The test is to ascertain is whether two offences are the same and not the identity of the
allegations but the identity of the ingredients of the offences.

What is prohibited under Article 20 (2) is, the second prosecution and conviction must
be for the same offence. If the offences are distinct, there is no question of the rule as to
double jeopardy being applicable. 

It is thus clear that the same facts may give rise to different prosecutions and punishment and
in such an event the protection afforded by Article 20 (2) is not available. It is settled law that
a person can be prosecuted and punished more than once even on substantially same facts
provided the ingredients of both the offences are totally different and they did not form the
same offence

The question that falls for our consideration is, whether the appellant can be said to have
satisfied all the conditions that are necessary to enable her to claim the protection of Article
20 (2) of the Constitution. The charges upon which the appellant has been convicted now, for
the charges under the Indian Penal Code, we will presume for our present purpose that the
allegations upon which these charges are based, proved, resulting in conviction and
punishment of the appellant are substantially the same which formed the subject matter of
prosecution and conviction under the penal provisions of Portugal law. But we have no doubt
to hold that the punishment of the appellant is not for the same offence.

SECTION 161-164
Please read the Sections first.

1. GAJENDRA V. STATE OF UP
Mr. Garg drew our attention to the statement of P.W. 13 the Investigating Officer Jagdish
Prasad, where he stated that while investigating the cross-case State v. Sukhendra Singh, he
had made inquiries from the witnesses Shyampal Singh, Sukhen dra Singh and Kanku as to
how Rambeti received injuries but they had showed their ignorance. It was argued on the
basis of this statement that the prosecution had deliberately suppressed the manner in which
Smt. Rambeti sustained injuries. In the first place this statement is absolutely inadmissible
because it was a statement made under Section 161 of the CrPC during investigation of
the cross case which was not at all admissible in the present case. Secondly, before the
attention of Jagdish Prasad could be drawn to the statement it should have been put to the
witness Shyampal Singh in this case which was not done. In these circumstances, therefore,
this statement must be excluded from consideration. Even if we take this statement of Jagdish
Prasad into consideration, that does not put the prosecution case out of court, because we
have already pointed out that there were a number of circumstances which went to show that
the defence version was not true at all and that what really happened was that Smt. Rambeti
sustained injuries accidentally because some of the pellets which by-passed the deceased hit
her. For these reasons, therefore, the first contention raised by Mr. Garg is overruled.
 2. VINAY D. NAGAR VS STATE OF RAJASTHAN ON 3 MARCH, 2008
In the case of Khatri and Others v. State of Bihar & Ors., AIR 1981 SC 1068, this Court has
held that Section 162 Cr.P.C. bars the use of any statement made before the police
officer in the course of an investigation under Chapter XII, whether recorded in the
police diary or otherwise. However, by the express terms of Section, this bar is applicable
only where such statement is sought to be used `at any inquiry or trial' in respect of any
offence under investigation at the time when such statement was made. If the statement
made before a police officer in the course of an investigation under Chapter XII is sought to
be used in any proceeding, inquiry or trial in respect of an offence other than which was
under investigation at the time when such statement was made, the bar of Section
162 will not be attracted.

We have analysed the statement of the deceased Kalu made to the police under Section
161 Cr.P.C. We do not find that the statement of the deceased was in regard to the cause of
his death, or as to any of the circumstances of the transaction which resulted in his death. The
statement is in regard to the accused's involvement in the abduction of a boy and has no
remote connection or reference to the death of the deceased and thus would not be admissible
under Section 32 of the Evidence Act. The statement recorded by the police although could
be proved as there would not be any bar under Section 162 Cr.P.C. for proof of such
statement, but it would not be admissible under Section 32 of the Evidence Act, and thus it
could not have been relied upon by the prosecution to prove the motive for commission of the
crime by the accused appellant.

3. STATE OF KERALA VS BABU & ORS ON 4 MAY, 1999

172 & 91
[Mahavir Mandal v. State of Bihar- 162- not substantive evidence]

PARA 5

A perusal of this Section shows that this Section permits the cross-examination of the witness
in any trial, with reference to his previous statement, to establish a contradiction and the
manner in which such contradictions can be established. Section 155 of the Evidence Act
provides that the previous statement of a witness can be made use of during the cross-
examination of that witness for the purpose of impeaching the credit of the witness. Thus, it is
seen it is the right of a party in a trial to use the previous statements of a witness either for the
purpose of establishing a contradiction in his evidence or for the purpose of impeaching the
credit of the witness. This right given to a party in a trial under Section 145 of the Evidence
Act is somewhat controlled in criminal trials by the provisions made in the Code. Section
161 of the Code provides that the police officer investigating a case is entitled to
examine any person and reduce the statement of such person in writing. This statement
recorded by a police officer under Section 161 even though is a previous statement for the
purpose of Section 145 of the Evidence Act, such statement can be used for the purpose of
establishing a contradiction or impeaching the credit of the witness only in the manner
provided for in Section 162 of the Code. The use of the previous statement recorded
under section 161 of the Code is controlled by Section 162 of the Code.

Therefore, on a reading of Section 162 of the Code bearing in mind the object of the said
Section and Section 145 of the Evidence Act, it is clear that an accused in a criminal trial has
the right to make use of the previous statements of a witness including the statements
recorded by the investigating agency during the course of an investigation for the
purpose of establishing a contradiction in the evidence of a witness or to discredit the
witness. The question then arises how the accused confronts the previous statement made by
a witness in the course of an investigation to establish the contradiction in the evidence given
by the witness in the trial. So far as the statements made during the course of
investigation of the case being tried is concerned, there is no difficulty because an
accused is entitled under Section 207 of the Code for the supply of free copies of the
documents referred to in the said Section which includes the previous statement
recorded under sub-section (3) of Section 161 of the Code. The accused does not have
such a right as a matter of course in regard to other previous statements; more so, in regard to
the statements recorded by the investigating agency under Section 161 in a case other than the
one that is being tried by the court. Therefore, in the instant case, the accused made an
application for summoning the case diary of Crime No.81/91 invoking the provisions
of Section 172 of the Code. But the State contends that this Section does not apply to
summoning the case diary of cases other than the one that is being tried. 

Sub-section (1) of the above Section mandates that every police officer making an
investigation shall maintain a case diary of that case in which among other entries, shall
maintain the statements of the witnesses examined by him during the course of his
investigation. Sub-section (2) of the same Section empowers a criminal court to send for such
police diaries of a case under inquiry or trial in such Court, (emphasis supplied) and permits
the use of such diaries, not as evidence in the case, but to aid it in such inquiry or trial. The
words used in sub-section (2) of Section 172, more particularly police diaries of a case under
inquiry or trial in such Court, indicates it is only that police diary in which the concerned
investigating officer had made entries of his investigation and which pertains to the case
being tried by the court alone can be sent for. Sub-section (3) of Section 172 further imposes
restrictions in the manner in which such diaries can be used by the court. It also specifically
bars the right of an accused or his agent to call for such diaries. Thus, on a plain language of
this Section, it is clear that this Section cannot be used for the purpose of summoning a case
diary which does not pertain to the investigation of the case which is being tried by the court.
It also stands to reason because so far as the accused is concerned in the case in which he is
being tried, he would have been supplied with all the documents referred to under Section
207 of the Code. Therefore, the question of he using the entries in the case diary would not
arise. Section 172 is specifically meant for the contingencies when court finds it necessary to
look into the case diary for the purpose of finding an aid in the trial or for the purpose of
assisting the police officer to refresh his memory. Therefore, Section 172 does not
contemplate summoning of the case diary for the purpose of assisting the accused to have a
look at the previous statements of the witness for using it for his benefit, as contemplated
in Section 162 of the Code. The trial court and the High Court in this case proceeded on the
footing that there is no bar under the Code to summon the case diary relating to the cases
other than the one that is being tried. Hence, placed reliance on Section 172 of the Code. We
are unable to subscribe to that part of the finding of the courts below that the source of power
to summon the case diary of a case other than the one that is being tried, emanates from
Section 172 of the Code. Respondents have sought to place reliance on a Division Bench
judgment of the High Court of Calcutta in the case of Ahmed Mia & Ors. Vs. Emperor (AIR
1944 Cal. 243) wherein the High Court observed thus :-

Section 172 relates to the Police diary made in respect of a case under enquiry or trial by the
Court which calls for it and therefore does not in terms apply where the diary relates not to
the case which was actually being tried by the Court but to the counter case, but the principles
set out in the section apply. There is no provision in the Criminal Procedure Code which
would prevent the Court from looking into the diary of the counter case, or from using the
diary in the counter case in the way laid down in S.172(2).

These observations of the court proceeded on the basis that there is no provision in the
Criminal Procedure Code which would prevent the court from looking into the diary of the
counter case or from using the diary in the counter case in the way laid down in Section
172(2) of the Code. There can be no quarrel in regard to the fact that there is no prohibition
in the Criminal Procedure Code against any court from looking into the diary of a counter
case or from using the diary of a counter case in the trial of another case. But this does not
mean that the right of the court to summon the case diary of another case is derived
from Section 172 of the Code or by the application of principles of Section 172 because ex
facie Section 172 of the Code does not help the accused in making use of a case diary.
Therefore, we are of the opinion that the judgment of the Calcutta High Court does not fully
support the case of the respondents. On the contrary, it is seen that this Court in Khatris case
(supra) has observed thus : It will thus be seen that the bar against production and use of case
diary enacted in Section 172 is intended to operate only in an inquiry or trial of an offence.

This indicate the fact that Section 172 relates to summoning of the case diary of a case which
is under enquiry or trial only. The High Court in the impugned judgment proceeded on the
basis that a statement recorded by an investigating officer in any case which was under
investigation, being a statement made under Section 161 of the Code, the same can be used
for the limited purpose provided under Section 162 of the Code read with Section 145 of the
Evidence Act. There can be no quarrel with this approach of the High Court in regard to the
use of the previous statements of a witness made in the course of another investigation being
used in the course of another criminal trial. This is because, as seen from the observations of
this Court in the case of Tahsildar Singh (supra), the very object of enactment of Section
161 of the Code and Section 145 of the Evidence Act is to create a right in the accused to
make use of the previous statements of the witnesses for the purpose of contradiction and for
impeaching the merit of the witness. This right has not been taken away by Section 172 of the
Code and, as noticed above, there is no prohibition in regard to this right of the accused either
under the Code or under the Evidence Act. But the question for consideration is, how does
the accused exercise this right with reference to a previous statement of a witness made in
another case which is recorded by the investigating officer in that case under the provisions
of Section 161 of the Code. In our opinion, this right certainly does not flow under Section
172 of the Code nor is the accused entitled to these previous statements under Section 207 of
the Code. But, this does not mean that the accused is denied of his limited benefit of using the
said previous statements recorded during the course of another investigation. The answer to
this question, in our considered view, lies in Section 91(1) of the Code which reads thus :

91. Summons to produce document or other thing.- (1) Whenever any Court or any officer
in charge of a police station considers that the production of any document or other thing is
necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding
under this Code by or before such Court or officer, such Court may issue a summons, or such
officer a written order, to the person in whose possession or power such document or thing is
believed to be, requiring him to attend and produce it, or to produce it, at the time and place
stated in the summons or order. (2) Any person required under this section merely to produce
a document or other thing shall be deemed to have complied with the requisition if he causes
such document or thing to be produced instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed ---

(a) to affect Sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or

the Bankers Books Evidence Act, 1891 (13 of 1891), or (b) to apply to a letter, postcard,
telegram or other document or any parcel or thing in the custody of the postal or telegraph
authority.

The language of Section 91 is much wider than the language of Section 172 and by no
stretch of imagination it could be contended that the case diary maintained
under Section 172 of the Code is not a document as contemplated under Section 91(1) of
the Code. If that be so and if the court comes to the conclusion that the production of
such document is necessary or desirable then, in our opinion, the court is entitled to
summon the case diary of another case under Section 91 of the Code de hors the
provisions of Section 172 of the Code for the purpose of using the statements made in
the said diary, for contradicting a witness. When a case diary, as stated above, is
summoned under Section 91(1) of the Code then the restrictions imposed under sub-sections
(2) and (3) of Section 172 would not apply to the use of such case diary but we hasten to add
that while using a previous statement recorded in the said case diary, the court should bear in
mind the restrictions imposed under Section 162 of the Code and Section 145 of the Evidence
Act because what is sought to be used from the case dairy so produced, are the previous
statements recorded under Section 161 of the Code.

STATE OF NCT OF DELHI VS RAVI KANT SHARMA & ORS ON 13 FEBRUARY, 2007
Under Section 161 Cr.P.C. the police officer may reduce into writing any statement made to
him in the course of examination under that provision and if he does so he shall make
separate and true record of the statement of each such person whose statement he records.
The provision in other words authorizes the police officer to reduce into writing any
statement made by a witness. In a given case the investigating officer may record
circumstances ascertained during investigation in the case diary in terms of Section
172 Cr.P.C. It is only when the investigating officer decides to record the statement of
witnesses under Section 161 Cr.P.C. that he becomes obliged to make a true record of the
statement which obviously will not include the interpretation of the investigating officer of
the statements or the gists of statement. At this stage it will be necessary to take note of sub-
section (b) of Section 173 Cr.P.C. which authorises the police officer to claim a sort of
privilege in respect of any statement recorded under Section 161 Cr.P.C. after giving
reasons as to why such statement may not be provided to the accused. Such privilege can
only be claimed in respect of statement recorded under Section 161 Cr.P.C. and not in
respect of what the officer records in the case diary i.e. the gist of the statement
under Section 172 Cr.P.C. It will also be necessary to take note of Section 207 Cr.P.C. The
Magistrate has to, in terms of that provision, provide to the accused, free of cost, copies of
statements recorded under Section 161(3) subject to the exceptions in terms of Section
173(6). A categorical statement has been made by the learned counsel for the appellant that
the gist of the statement has not been produced by the prosecution to prove the guilt of the
accused and the gists of the statements were not recorded in terms of Section 161 Cr.P.C. and
accused has no right to ask for the gists of such statements if recorded under Section 172.

At this juncture it would be necessary to take note of sub section (3) of Section 172 which
provides that neither the accused nor his agents shall be entitled to call for such diaries
meaning diary of proceedings in investigation nor shall he or they be entitled to see them
merely because they are referred to by the Court.

At this juncture it would be necessary to take note of sub section (3) of Section 172 which
provides that neither the accused nor his agents shall be entitled to call for such diaries
meaning diary of proceedings in investigation nor shall he or they be entitled to see
them merely because they are referred to by the Court.

The supervision notes can in no count be called. They are not a part of the papers which are
supplied to the accused. Moreover, the informant is not entitled to the copy of the supervision
notes. The supervision notes are recorded by the supervising officer. The documents in terms
of Sections 207 and 208 are supplied to make the accused aware of the materials which are
sought to be utilized against him. The object is to enable the accused to defend himself
properly. The idea behind the supply of copies is to put him on notice of what he has to meet
at the trial. The effect of non-supply of copies has been considered by this Court in Noor
Khan v. State of Rajasthan(AIR 1964 SC 286) and Shakila Abdul Gafar Khan (Smt.) v.
Vasant Raghunath Dhoble and Anr. (2003 (7) SCC 749).

It was held that non-supply is not necessarily prejudicial to the accused. The Court has to
give a definite finding about the prejudice or otherwise. The supervision notes cannot be
utilized by the prosecution as a piece of material or evidence against the accused. At the
same time the accused cannot make any reference to them for any purpose. If any
reference is made before any court to the supervision notes, as has noted above they are
not to be taken note of by the concerned court . As many instances have come to light
when the parties, as in the present case, make reference to the supervision notes, the
inevitable conclusion is that they have unauthorized access to the official records. We,
therefore, direct the Chief Secretary of each State and Union Territory and the concerned
Director General of Police to ensure that the supervision notes are not made available to any
person and to ensure that confidentiality of the supervision notes is protected. If it comes to
light that any official is involved in enabling any person to get the same appropriate action
should be taken against such official. Due care and caution should be taken to see that while
supplying police papers supervision notes are not given."

SECTION 162:

MAHABIR MANDAL V. STATE OF BIHAR

According to section 162 of the Code of Criminal Procedure, no statement made by any
person to a police officer in the course of an investigation shall be signed by the person
making it or used for any purpose at any enquiry or trial in respect of any offence under
investigation at the time when such statement was made.
The only exception to the above rule is mentioned in the proviso to that section. According
to the Proviso, when any witness is called for the prosecution in the enquiry or trial, any
part of his statement, if duly proved, may be used by the accused and with the
permission of the court by the prosecution, to contradict such witness in the manner
provided by section 145 of the Indian Evidence Act and when any part of such
treatment is so used, any part thereof may also be used in the re-examination of such
witness for the purpose only of explaining any matter referred to in his cross-
examination. The above rule is, however, not applicable to statements falling within the
provisions of clause 1 of section 32 of the Indian Evidence Act or to affect the provisions
of section 27 of that Act. It is also well established that the bar of inadmissibility operates
not only on statements of witnesses but also on those of the accused [see Narayan Swami v.
Emperor, (1)]. Lord Atkin, in that case, while dealing with section 162 of the, Code
of Criminal Procedure, observed “Then follows the Section in question which is drawn in the
same general way relating to "any person.” That the words in their ordinary meaning would
include any person though he may thereafter be accused seems plain. Investigation into crime
often includes the examination of a number of persons none of whom or all of whom may be
suspected at the time. The first words of the Section prohibiting the statement if recorded
from being signed must apply to all the statements made at the time and must therefore
apply to a statement made by a person possibly not then even suspected but eventually
accused."
SECTION 162 AND POWER OF A JUDGE

RAGHUNANDAN V. STATE OF UP

It is true that the ban, imposed by section 162 Criminal Procedure Code, against the use of a
statement of a Witness recorded by the Police during investigation, appears sweeping and
wide. But, at the same time, we and that the powers of the Court, under section 165 of the
Evidence Act, to put any question to a witness, are also couched in very wide terms
authorising the Judge "in order to discover or to obtain proper proof of relevant facts" to "ask
any question he pleases, in any form, at any time, of any witness, or of the parties, about any
fact relevant or irrelevant". The first proviso to section 165 Evidence Act, enacting that,
despite the powers of the Court to put any question to a witness, the judgment must be based
upon facts declared by the Act to be relevant, only serves to emphasize the width of the
power of the Court to Question a witness. The second proviso is this section preserves the
privileges of witnesses to refuse to answer certain questions and prohibits only questions
which would be considered improper under section 148 and 149 of the Evidence Act.
Statements of witnesses made to the police during the investigation do not fall under any
prohibited category mentioned in Section 165 Evidence Act. If Section 162 Criminal
Procedure Code was meant to be so wide in its sweep as the Trial Court thought it to be,
it would make a further inroad upon the powers of the Judge to put Questions under
Section 165 Evidence Act. If that was the correct position, at least Section 162 Criminal
Procedure Code would have said so explicitly. Section 165 of the Evidence Act was
already there when section 162 Criminal Procedure Code was enacted. It is certainly quite
arguable that Section 162 Criminal Procedure Code doer, amount to a prohibition against the
use even by the Court of statements mentioned there. Nevertheless, the purpose of the
prohibition of Section 162 Criminal Procedure Code being to prevent unfair use by the
prosecution of statements made by witnesses to the Police during the course of
investigation, while the proviso is intended for the benefit of the defence, it could also be
urged that, in order to secure the ends of Justice, which all procedural law is meant to
subserve, the prohibition, by taking into account its purpose and the mischief it was
designed to prevent as well as its context, must be confined in its scope to the use by
parties only to a proceeding of statements mentioned there.

We are inclined to accept the argument of the appellant that the language of Section
162 Criminal Procedure Code, though wide, is not explicit or specific enough to extend
the prohibit on to the use of the wide and special powers of the Court to question a
witness, expressly and explicitly given by Section 165 of the Indian Evidence Act in
order to secure the ends of justice. We think that a narrow and restrictive construction put
upon the prohibition in Sect on 162 Criminal Procedure Code, so as to confine the ambit of
it to the use of statements by witnesses by parties only to a proceeding before the Court,
would reconcile or harmonize the two provisions considered by us and also serve the
ends of justice. Therefore, we hold that Section 162 Criminal Procedure Code does not
impair the special powers of the Court under Section 165 Indian Evidence Act.
Consequently, we think that the Trial Court could and should have itself made use of the
statement made by Jailal during the course of the investigation. If that had been done, it is
possible that it may have affected appraisal of evidence of other prosecution witnesses.

WITNESS NOT SPONSORED BY IA- PART OF INVESTIGATION JUST RELAX

1. JOGENDRA NANAK V STATE OF ORISSA

Whether Section 164(1) of the Code as empowering a magistrate to record the statement
of a person unsponsored by the investigating agency? NO, unless prejudice.

If a magistrate has power to record statement of any person under Section 164 of the Code,
even without the investigating officer moving for it, then there is no good reason to limit the
power to exceptional cases. We are unable to draw up a dividing line between witnesses
whose statements are liable to be recorded by the magistrate on being approached for that
purpose and those not to be recorded. The contention that there may be instances when
the investigating officer would be disinclined to record statements of willing witnesses
and therefore such witnesses must have a remedy to have their version regarding a case
put on record, is no answer to the question whether any intending witness can
straightaway approach a magistrate for recording his statement under Section 164 of
the Code. Even for such witnesses provisions are available in law, e.g. the accused can
cite them as defence witnesses during trial or the court can be requested to summon
them under Section 311 of the Code. When such remedies are available to witnesses (who
may be sidelined by the investigating officers) we do not find any special reason why the
magistrate should be burdened with the additional task of recording the statements of all and
sundry who may knock at the door of the court with a request to record their statements
under Section 164 of the Code.
On the other hand, if door is opened to such persons to get in and if the magistrates are
put under the obligation to record 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 for the purpose of helping the culprits. In the present case,
one of the arguments advanced by accused for grant of bail to them was based on the
statements of the four appellants recorded by the magistrate under Section 164 of the Code. It
is not part of the investigation to open up such a vista nor can such step be deemed necessary
for the administration of justice.

Thus, on a consideration of various aspects, we are disinclined to interpret Section 164(1) of

the Code as empowering a magistrate to record the statement of a person unsponsored by the
investigating agency. The High Court has rightly disallowed the statements of the four
appellants to remain on record in this case. Of course, the said course will be without
prejudice to their evidence being adduced during trial, if any of the parties requires it.

2. KUNJUKUTTY V STATE OF KERALA

The statement of a witness is generally recorded under Section 164 of the Code to fix him up
with that statement when it is feared that he may resile afterwards. Ordinarily the police, in
the course of investigation, sends witnesses for having their statements recorded by a
Magistrate under Section 164 of the Code when they feel that there may be some
uncertainty about the evidence or when it is felt that the witness may at some distance
of time speak falsely or misleadingly with deliberate intention. If a statement of a witness
is previously recorded tinder Section 164 of the Cods, it leads to the inference that there was
a time when police thought the witness may change. If the witness sticks to the statement
made by him, the mere fact that his statement was previously recorded under Section 164 will
not be sufficient to discard it. A statement recorded under Section 164 of the Code is not
substantive evidence. It can be used either for contradiction or for corroboration. If this
be the legal position, what can be the purpose of a person approaching the Magistrate to
record his own statement? On account of the righteous indignation, if a person approaches the
Magistrate to record his statement under Section 164 of the Code, there is no uncertainty
about the evidence and there is no chance for him to speak falsely or misleadingly at later
stage. So the statement of such a witness need not be recorded under Section 164 of the Code
for the purpose of being used for corroboration or contradiction at a later stage in the trial.
According to the petitioner the investigating officer did not hear her or record her statement.
So her statement will not go to help the prosecution. It can only benefit the accused. The
accused can, if he so wants, make use of the evidence of the petitioner by citing her as
defence witness in trial. The learned Magistrate dismissed the petition filed before him
taking the above view. In these circumstances, it cannot be held that the court below acted
illegally or with material irregularity in the exercise of its jurisdiction.

According to section 162 of the Code of Criminal Procedure, no statement made by any
person to a police officer in the course of an investigation shall be signed by the person
making it or used for any purpose at any enquiry or trial in respect of any offence under
investigation at the time when such statement was made. The only exception to the above rule
is mentioned in the proviso to that section. According to the Proviso, when any witness is
called for the prosecution in the enquiry or trial, any part of his statement, if duly proved,
may be used by the accused and with the permission of the court by the prosecution, to
contradict such witness in the manner provided by section 145 of the Indian Evidence Act
and when any part of such treatement is so used, any part thereof may also be used in the re-
examination of such witness for the purpose only of explaining any matter referred to in his
cross-examination. The above rule is, however, not applicable to statements falling within the
provisions of clause 1 of section 32 of the Indian Evidence Act or to affect the provisions
of section 27 of that Act. It is also well established that the bar of inadmissibility operates not
only on statements of witnesses but also on those of the accused [see Narayan Swami v.
Emperor, (1)]. Lord Atkin, in that case, while dealing with section 162 of the, Code
of Criminal Procedure, observed "Then follows the Section in question which is drawn in the
same general way relating to "any person." The words in their ordinary meaning would
include any person though he may thereafter be accused seems plain. Investigation into crime
often includes the examination of a n umber of persons none of whom or all of whom may be
suspected at the time. The first words of the Section prohibiting the statement if recorded
from being signed must apply to all the statements made at the time and must therefore apply
to a statement made by a person possibly not then even suspected but even- tually accused."

DELAY

1. ACHARAPARAMBATH PRADEEPAN V STATE OF KERALA

Delay in examining witnesses- give plausible and acceptable reasons.

As regards delayed examination of certain witnesses, this Court in several decisions has held
that unless the Investigating Officer is categorically asked as to why there was delay in
examination of the witnesses the defence cannot gain any advantage therefrom. It cannot be
laid down as a rule of universal application that if there is any delay in examination of a
particular witness the prosecution version becomes suspect. It would depend upon several
factors. If the explanation offered for the delayed examination is plausible and acceptable and
the court accepts the same as plausible, there is no reason to interfere with the conclusion.

The court noticed inordinate delay but still said that defective investigation by itself may not
lead to a conclusion that the accused is innocent.

MURLI V STATE OF RAJASTHAN

We are quite mindful of the fact that the statement of Badri Lal (PW-2) was recorded
extremely late, i.e., after about 25 days of the incident. Strangely enough, no explanation
thereof was asked and there is no cross examination of the Investigating Officer on this
issue. This is apart from the fact that Badri Lal (PW-2) very specifically spoke about his
criminal past and explained that since he was afraid of the Police, he did not go to the
Police Station. This witness was also examined, firstly, on 17.6.1989 and in his cross
examination, at the first instance, his criminal past was brought out. There can be no dispute
that the witness has a criminal past, but that by itself, may not be sufficient to throw his
evidence, as has been done by the Appellate Court. While we see the impugned judgment, it
is evident that even the statements of other two witnesses, namely, Bajrang Lal (PW-3) and
Durga Lal (PW-4) were recorded after about 23 days of the occurrence of the incident. Those
two witnesses turned hostile and hence, they were not believed. However, insofar as this
witness (Badri Lal - PW-2) is concerned, in Para 22 of the Appellate Judgment, it was held
that the delay in recording of his evidence under Section  161 Cr.P.C. was fatal. The
Appellate Court did see that the name of Badri Lal (PW-2) was there in the First Information
Report also, which gave great support to the fact that he was present. The only reason that
the Appellate Court has given is the late recording of his statement under
Section 161 Cr.P.C. and that he was involved in number of criminal cases. We are also
not satisfied with the observation made. Beyond this, the Appellate Court has not dealt
with his evidence at all. 
 TRIAL

BY SESSIONS COURT

1. P B DESAI V. STATE OF GUJARAT, HC DECISION

Public Prosecutor-investigation ends-trial begins-complaint filed by complainant

Section 225: In every trial before a Court of Session, the prosecution shall be conducted by a
Public Prosecutor.

Section 2(u): "Public prosecutor" means any person appointed under Section 24, and
includes any person acting under the directions of a public prosecutor.

The aforesaid makes it clear that the role of the complainant in filing the complaint is one
thing, the investigation of the complaint and the submission of the report by the investigating
officer is another thing and conducting of the matter by the Public Prosecutor is also a
separate thing altogether. Merely because a complaint is filed by the complainant and
upon his complaint, the cognizance is taken by the Court, the complainant would not be
in a position to step into the shoes of the State but the role of the complainant would be
to put the investigating machinery into the motion in accordance with law. Once a
complaint is registered or a private complaint is filed in the Court and the Court has
directed for investigation, it is for the investigating officer to investigate into the offence
as per the provisions of the Code by ensuring that the offenders are booked and
innocent persons are not harassed by maintaining the spirit of the investigation. The
role of the Public Prosecutor is to prosecute the case of the State and the Public
Prosecutor is independent as per the scheme after the offence is investigated and the
cognizance is taken by the Court. Therefore, even if the investigating officer did not
properly submit the report for constitution of the offence, but once the Court has taken
cognizance of the offence, it would be the duty of the Public Prosecutor to properly
prosecute the matter for ensuring that all relevant evidence for proving the case against
the accused are placed before the Court in a fair manner without prejudicing the rights
of the accused to defend the case at the trial. Therefore, in our view, when the role of the
Public Prosecutor is different and independent, merely because at one point of time, the
investigating officer had submitted the summary report before the Court may be on
account of misunderstanding of the facts or law can hardly be a valid ground to proceed
on the basis that after the Court has taken cognizance, the Public Prosecutor shall not
properly discharge the duty which is cast upon him.

Appointing a private counsel by complainant

It is not merely an overall supervision which the Public Prosecutor is expected to perform in
such cases when a privately engaged counsel is permitted to act on his behalf. The role which
a private counsel in such a situation can play is, perhaps, comparable with that of a junior
advocate conducting the case of his senior in a court. The private counsel is to act on
behalf of the Public Prosecutor albeit the fact he is engaged in the case by a private
party. If the role of the Public Prosecutor is allowed to shrink to a mere supervisory role
the trial would become a combat between the private party and the accused which would
render the legislative mandate in Section 225 of the Code a dead letter.

2. BANTI@GUDDU V STATE OF MADHYA PRADESH

 Public Prosecutor: what does he do?

In trials before a Court of Session the prosecution "shall be conducted by a Public

Prosecutor". Section 226 of the Code of Criminal Procedure, 1973 (for short 'the Code')
enjoins on him to open up his case by describing the charge brought against the accused. He
has to state what evidence he proposes to adduce for proving the guilt of the accused. If he
knew at that stage itself that certain persons cited by the investigating agency as witnesses
might not support the prosecution case he is at liberty to state before the Court that fact .
Alternatively, he can wait further and obtain direct information about the version which any
particular witness might speak in court. If that version is not in support of the prosecution
case it would be unreasonable to insist on the Public Prosecutor to examine those persons as
witnesses for prosecution.

Section 231:

When, the case reaches the stage envisaged in Section 231 of the Code the Sessions Judge
is obliged "to take all such evidence as may be produced in support of the prosecution".
It is clear form the said section that the Public Prosecutor is expected to produce evidence
"in support of the prosecution'' and not in derogation of the prosecution case. At the said
stage the Public prosecutor would be in a position to take a decision as to which among the
persons cited are to be examined. If there are too many witnesses on the same point the
Public Prosecutor is at liberty to choose two or some among them alone so that the time of
the Court can be saved from repetitious depositions on the same factual aspects. That
principle applies when there are too many witnesses cited, if they all had sustained
injuries at the occurrence. The Public Prosecutor in such cases is not obliged to examine all
the injured witnesses. If he is satisfied by examining any two or three of them, it is open to
him to inform the Court that he does not propose to examine the remaining persons in that
category. This will help not only the prosecution in relieving itself of the strain of adducing
repetitive evidence on the same point but also help the Court considerably in lessening the
workload. Time has come to make every effort possible to lessen the workload, particularly
these courts crammed with cases, but without impairing the cause of justice.

The situation in a case where the prosecution cited two categories of witnesses to the
occurrence, one consisting of persons closely related to the victim and the other
consisting of witnesses who have no such relation, the Public Prosecutor's duty to the
Court may require him to produce, witnesses from the latter category, also subject to
his discretion to limit to one or two among them. But if the Public Prosecutor got
reliable information that any one among that category would not support the
prosecution version he is free to state in court about that fact and skip the witness from
being examined as a prosecution witness. It is open to the defence to cite him and
examine him as a defence witness. The decision in this regard has to be taken by the
Public Prosecutor in a fair manner. He can interview the witness beforehand to enable
him to know well in advance the stand which that particular person would be adopting
when examined as a witness in court.

Essentially, quality not quantity. You don’t count evidence, you weigh evidence.

3. ROHTASH V STATE OF HARYANA, 2013

Cites Banti@Guddu

Thus, the prosecution is not bound to examine all the cited witnesses, and it can drop
witnesses to avoid multiplicity or plurality of witnesses. The accused can also examine the
cited, but not examined witnesses, if he so desires, in his defence. It is the discretion of the
prosecutor to tender the witnesses to prove the case of the prosecution and “the court will not
interfere with the exercise of that discretion unless, perhaps, it can be shown that the
prosecution has been influenced by some oblique motive.” In an extra-ordinary situation, if
the court comes to the conclusion that a material witness has been withheld, it can draw
an adverse inference against the prosecution, as has been provided under  Section 114 of
the Evidence Act. Undoubtedly, the public prosecutor must not take the liberty to “pick
and choose” his witnesses, as he must be fair to the court, and therefore, to the truth. In
a given case, the Court can always examine a witness as a court witness, if it is so
warranted in the interests of justice. In fact, the evidence of the witnesses, must be
tested on the touchstone of reliability, credibility and trustworthiness. If the court finds
the same to be untruthful, there is no legal bar for it to discard the same.

4. UNION OF INDIA V PRAFULLA

It discusses the scope and ambit of an order of discharge to be passed by a Special

Judge under section 227 of the Code. 

Section 227: 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. [Applicable for both Sessions
and Magistrate Judge]

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 . In assessing this fact, it is
not necessary for the court to enter into the pros and cons of the matter or into a weighing and
balancing of evidence and probabilities which is really his function after the trial starts. At the
stage of section 227, the Judge has merely to sift the evidence in order to find out
whether or not there is sufficient ground for proceeding against the accused. The
sufficiency of ground would take within its fold the nature of the evidence recorded by
the police or the documents produced before the court which ex facie disclose that there
are suspicious circumstances against the accused so as to frame a charge against him.

This Court has held that whereas strong suspicion may not take the place of the proof at
the trial stage, yet it may be sufficient for the satisfaction of the Sessions Judge in order
to frame a charge against the accused. Even under the Code of 1898 this Court has held
that a committing Magistrate had ample powers to weigh the evidence for the limited purpose
of finding out whether or not a case of commitment to the Sessions Judge has been made out.

Principles to be kept in mind:

(1) That the Judge while considering the question of framing the charges under section 227 of
the Code has the undoubted power to sift and weigh the evidence for the limited purpose of
finding out whether or not a prima facie case against the accused has been made out.

(2) Where the materials placed before the Court disclose grave suspicion against the
accused which has not been properly explained the Court will be, fully justified in framing a
charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each
case and it is difficult to lay down a rule of universal application. By and large however if
two views are equally possible and the Judge is satisfied that the evidence produced before
him while giving rise to some suspicion but not grave suspicion against the accused, he
will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under section 227 of the Code the Judge which under
the present Code is a senior and experienced Judge cannot act merely as a Post office or a
mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the
total effect of the evidence and the documents produced before the Court, any basic
infirmities appearing in the case and so on. This however does not mean that the Judge
should make a roving enquiry into the pros and cons of the matter and weigh the evidence as
if he was conducting a trial.

K MOIDU V. STATE OF KERALA, MADRAS HC

Q. What is the correct procedure to be followed, by a Sessions Court after closing the
evidence of the prosecution under Sec. 231 of the Code of Criminal Procedure, 1973 (for
short 'the Cr.PC.') and before proceeding to hear arguments under Sec. 234 Cr.P.C?

Q. What is the effect of non-compliance with the mandate of Secs. 232 and 233 Cr.P.C?

Q. Are the procedural stipulations mandatory?

Q. As soon as an omission/infraction of these provisions occurs, does it ipso facto vitiate the
proceedings obliging the superior courts to set aside the verdict and concede acquittal to the
accused or remand the case to the Sessions Court to recommence proceedings from that
vitiated stage?

Q. Is proof of prejudice or possibility thereof in the facts of the given case to be insisted
before such verdicts are set aside?

Section 232: 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 233: Entering upon defence:

(1) Where the accused is not acquitted under section 232 he shall be called upon to enter on
his defence and adduce any evidence he may have in support thercof.

(2) lf the accused puts in any written statement, the Judge shall file it with the record.

(3) 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.

Discharge

An accused should not be compelled to undergo the trauma of a continued criminal trial if he
does not deserve to stand the same. In a case where there is no evidence whatsoever
against him he should not be obliged to enter on his defence. He deserves to be relieved of
the trauma of the criminal prosecution at the earliest if there is no evidence against him. At
the stage of framing charge under Sec. 227/228, detailed consideration is, of course, not
there. At that stage evidence is not there and only the statements made at the stage of
investigation are there before court. The Court can only contemplate and anticipate the
probable evidence. But after the prosecution evidence is adduced if there is no evidence
whatsoever, the accused must be relieved forthwith of his obligation to continue to face
the trial. This evidently is the statutory objective, scheme and purpose under the provisions
of the old Code as well as the new Code.
It is unambiguously clear that the quality of the evidence is not to be assessed at that stage.
Acceptability, reliability, reasonableness, etc., are not relevant at that stage. What is to be
considered is not whether there is acceptable evidence; but whether there is no evidence at
all. In such a case where there is no evidence at all the accused should not be obliged to
continue to face the trial both under the old Code and under the present Code.

In the order sheets maintained from the stage of Sec.  232 Cr.P.C. a Sessions Court must
show the following steps clearly to satisfy the procedure prescribed:

(a) That the prosecution evidence was closed under Sec.231 Cr.P.C. and hearing was held
under Sec.232 Cr.P.C.

(b) That the mind of the court was applied under Sec.232 Cr.P.C. and a decision was taken
on the question whether it is a case where there is no evidence at all against the accused.
If there is no evidence at all, a detailed and considered order of acquittal must be passed.
If not, the fact that the case is not one in which there is no evidence at all must be recorded.
In that event, no detailed order need be written.

(c) If the court, decides to proceed further, the accused must be called upon to enter on his
defence and adduce evidence with the assistance of the court wherever necessary under
Sec.233 Cr.P.C to procure the presence of the witnesses,

(d) Whether the accused has adduced evidence or not must be recorded. If the accused
has not adduced evidence, it must be recorded that the accused and/or his counsel stated that
they want-to adduce-no defence even by way of abundant caution the statement, of the
accused can be recorded and his signature obtained as done under Sec.289(1) of the old Code,

(e) Only thereafter the court should proceed to consider the question of acquittal/conviction
under Sec.234 Cr.P.C.

24. We make it clear that every Sessions Court, is bound to ensure that the above
requirements are scrupulously followed and record to that effect is made in the order sheet
maintained by them.

More guidelines
(i) Sec. 232 and 233 of the Cr.P.C. are mandatory in the sense that all Sessions Courts are
expected to comply with those provisions strictly and earnestly and the compliance, should
be reflected in the proceedings.

(ii) However, non-compliance of the said provisions does not ipso facto vitiate the
proceedings,

(iii) If it is shown that the omission to comply with the provisions has resulted in serious and
substantial prejudice against the accused and consequent failure of justice, such
omission vitiates the proceedings from that stage and superior courts will be justified in
setting aside the final order and directing the Sessions Court to continue trial from that stage
afresh.

(iv)If there be substantial compliance and if there be no serious and substantial prejudice
against the accused and no resultant failure of justice flowing from the inadequacy in
compliance, such inadequacy/irregularity is curable under Sec. 465 Cr.P.C. and such
inadequacy/non-compliance will not vitiate the proceedings or lead to invalidation of the
subsequent proceedings.
BY MAGISTRATE IN WARRANT CASES

1. NOOR KHAN V. STATE OF RAJASTHAN

Essentially: Not providing documents under S. 161 does not vitiate the trial. It’s an
irregularity. The word shall is directory not mandatory.

By s. 161 of the Code of Criminal Procedure, a police-officer making an investigation under

Ch. XIV is authorised to examine orally any person supposed to be acquainted with the facts
and circumstances of the case. The person so examined is bound to answer all questions
relating to such case put to him by such officer, other than questions the answer to which
would have a tendency to expose him to a criminal charge or to penalty or forfeiture. Sub-
section (3) of s. 161 provides that a police-officer may 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 record of the statements of each such person whose statement the
records. Section 162 of the Code as amended by the Criminal Procedure Code (Amendment)
Act 26 of 1955 provides :

"No statement made by any person to a police officer in the course of an investigation under
this Chapter shall, if reduced into writing, be signed by the person making it; 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"

15. By the proviso it is enacted that when a witness is called for the prosecution in such
inquiry or trial, whose statement has been reduced into writing as aforesaid, any part of
his statement, if duly proved, may be used by the accused, and with the permission of
the Court, by the prosecution to contradict such witnesses.

16. Section 173 of the Code by sub-section (4) as amended by Act 26, 1955 provides that
the officer in charge of the police station shall, before the commencement of the inquiry
or trial, furnish or cause to be furnished to the accused, amongst others, a copy of the
first information report recorded under s. 154 and of all other documents or relevant
extracts thereof, on which the prosecution propose to rely, including the statements
recorded under sub-section (3) of s. 161 of all the persons whom the prosecution proposes
to examine as its witnesses. Section 207A of the Code of Criminal Procedure which is added
by Act 26 of 1955 by sub-section (3) provides :

"At the commencement of the inquiry, the Magistrate shall, when the accused appears or is
brought before him, satisfy himself that the documents referred to in section 173 have been
furnished to the accused and if he finds that the accused has not been furnished with such
documents or any of them, he shall cause the same to be so furnished," and the Magistrate
shall then proceed to record the evidence of the witnesses produced by the prosecution and he
may commit the case to the Court of Session on such evidence and after considering the
document referred to in s. 173.

18. The object of Sections 162, 173(4) and 207A(3) is to enable the accused to obtain a
clear picture of the case against him before the commencement of the inquiry. The
sections impose an obligation upon the investigating officer to supply before the
commencement of the inquiry copies of the statements of witnesses who are intended to be
examined at the trial so that the accused may utilize those statements for cross-examining the
witnesses to establish such defence as he desires to put up, and also to shake their testimony.
Section 161(3) does not require a police-officer to record in writing the statement of
witnesses examined by him in the course of the investigation, but if he does record in writing
any such statements, he is obliged to make copies of those statements available to the accused
before the commencement of proceeding in the Court so that the accused may know the
details and particulars of the case against him and how the case is intended to be proved. The
object of the provision is manifestly to give the accused the fullest information in the
procession of the prosecution, on which the case of the State is based, and the statements
made against him. But failure to furnish statements of witnesses recorded in the course of
investigation may not vitiate the trial. It does not affect the jurisdiction of the Court to
try a case, not is the failure by itself a ground which affects the power of the Court to
record a conviction, if the evidence warrants such a course. The provision relating to the
making of copes of statements recorded in the course of investigation is undoubtedly of
great importance, but the breach thereof must be considered in the light of the
prejudice caused to the accused by reason of its breach. for s. 537 Code of Criminal
Procedure provides, amongst other things, that subject to he provisions contained in the Code
no finding, sentence or order passed by a Court of competence jurisdiction shall be reversed
or altered an account of any error, omission or irregularity in the compliant, summons,
warrant proclamation, order judgment or other proceedings before or during trial or in any
inquiry or other proceedings under this Code, unless such error, omission, irregularity or
misdirection has in fact occasioned a failure of justice. By the explanation to s. 537 it is
provided that in determining whether any error, omission or irregularity in any proceeding
under this Code has occasioned a failure of justice, the Court shall have regard to the fact
whether the objection could and should have been raised at an earlier stage in the proceeding.

2. SANJAY GANDHI V. UNION OF INDIA

It is not open to the committal court to launch on a process of satisfy itself that a prima facie
case has been made out on the merits. The jurisdiction once vested in him under the earlier
Code 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 s. 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.

What Sir discussed in class: Assuming the facts to be correct as stated in the police
report, if the offence is plainly one under s. 201 I.P.C. the Magistrate has simply to
commit for trial 'before the Court of Sessions. 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  s.
227 Cr.P.C. to discharge the accused.

3. NARAYAN RAO V. STATE OF ANDHRA PRADESH

It will appear that in cases exclusively triable by a court of Session, it is the duty of the
magistrate, while holding a preliminary inquiry, to satisfy himself that the documents referred
in s.173 have been furnished to the accused and if he found that the police officer concerned
had not carried out his duty in that behalf, the magistrate should see to it that is done. After
the accused have been furnished with the necessary documents, it is now required to record
evidence of only such witnesses for the prosecution as had witnessed the actual commission
of the offence charged against the accused and of such other witnesses as he may consider
necessary in the interests of justice.

Q. Are the provisions of S. 173(4), read with s. 207A(3) mandatory or only directory?

There is no doubt that those provisions have been introduced by the amending Act of 1955, in
order to simplify the procedure in respect of inquiries leading upto a Sessions trial, and at the
same time to safeguard the interests of accused persons by enjoining upon police officers
concerned and magistrates, before whom such proceedings are brought, to see that all the
documents, necessary to give the accused persons all the information for the proper conduct
of their defence, are furnished. It has rightly been contended on behalf of the appellant that it
was the duty of the magistrate to see that the provisions aforesaid of the Code have been fully
complied with. Magistrates, therefore, have to be circumspect, while conducting such
proceedings, to see to it that accused persons are not handicapped in their defence by any
omission on the part of police officers concerned, to supply the necessary copies. But we are
not prepared to hold that non-compliance with those provisions has, necessarily, the
result of vitiating those proceedings and subsequent trial. The word "shall" occurring
both in sub-s. (4) of s. 173 and sub-s. (3) of s. 207A is not mandatory but only directory,
because an omission by a police officer, to fully comply with the provisions of s. 173,
should not be allowed to have such a far-reaching effect as to render the proceedings
including the trial before the court of Session wholly ineffective.

Section 173(4): After forwarding a report under this section, the officer in charge of the
police station shall, before the commencement of the inquiry or trial, furnish or cause to be
furnished to the accused, free of cost, a copy of the report forwarded under sub-section (1)
and of the first information report recorded under section 154 and of all other documents or
relevant extracts thereof, on which the prosecution proposes to rely, including the statements
and confessions, if any, recorded under section 164 and the statements recorded under sub-
section (3) of section 161 of all the persons whom the prosecution proposes to examine as its
witnesses.

OMKAR SINGH V. STATE OF UP

IDK. There were too many judgements with the same name.
 BAIL

1. SUNDEEP KUMAR BAFNA V. STATE OF MAHARASHTRA

How to grant bail as a Magistrate when the case is of a Sessions Judge? Power vested by
Magistrate while granting bail was discussed.

Magistrate can give bail, just give notice to PP.

Rights of an accused from Article 21

 Article 21 of the Constitution states that no person shall be deprived of his life or personal
liberty except according to procedure established by law. We are immediately reminded of
three sentences from the Constitution Bench decision in P.S.R. Sadhanantham vs
Arunachalam (1980) 3 SCC 141, which we appreciate as poetry in prose - “Article 21, in its
sublime brevity, guards human liberty by insisting on the prescription of procedure
established by law, not fiat as sine qua non for deprivation of personal freedom. And those
procedures so established must be fair, not fanciful, nor formal nor flimsy, as laid down in
Maneka Gandhi case. So, it is axiomatic that our Constitutional jurisprudence mandates the
State not to deprive a person of his personal liberty without adherence to fair procedure laid
down by law”. Therefore, it seems to us that constriction or curtailment of personal liberty
cannot be justified by a conjectural dialectic. The only restriction allowed as a general
principle of law common to all legal systems is the period of 24 hours post-arrest on the
expiry of which an accused must mandatorily be produced in a Court so that his
remand or bail can be judicially considered.

The scheme of the CrPC plainly provides that bail will not be extended to a person
accused of the commission of a non-bailable offence punishable with death or
imprisonment for life, unless it is apparent to such a Court that it is incredible or
beyond the realm of reasonable doubt that the accused is guilty. The enquiry of the
Magistrate placed in this position would be akin to what is envisaged in State of Haryana vs
Bhajan Lal, 1992 (Supp)1 SCC 335, that is, the alleged complicity of the accused should, on
the factual matrix then presented or prevailing, lead to the overwhelming, incontrovertible
and clear conclusion of his innocence. The CrPC severely curtails the powers of the
Magistrate while leaving that of the Court of Session and the High Court untouched and
unfettered. It appears to us that this is the only logical conclusion that can be arrived at on a
conjoint consideration of Sections 437 and 439 of the CrPC. Obviously, in order to complete
the picture so far as concerns the powers and limitations thereto of the Court of Session and
the High Court, Section 439 would have to be carefully considered. And when this is done, it
will at once be evident that the CrPC has placed an embargo against granting relief to an
accused, (couched by us in the negative), if he is not in custody. It seems to us that any
persisting ambivalence or doubt stands dispelled by the proviso to this Section, which
mandates only that the Public Prosecutor should be put on notice. We have not found
any provision in the CrPC or elsewhere, nor have any been brought to our ken,
curtailing the power of either of the superior Courts to entertain and decide pleas for
bail. Furthermore, it is incongruent that in the face of the Magistrate being virtually
disempowered to grant bail in the event of detention or arrest without warrant of any
person accused of or suspected of the commission of any non-bailable offence
punishable by death or imprisonment for life, no Court is enabled to extend him
succour. Like the science of physics, law also abhors the existence of a vacuum, as is
adequately adumbrated by the common law maxim, viz. ‘where there is a right there is a
remedy’. The universal right of personal liberty emblazened by Article 21 of our
Constitution, being fundamental to the very existence of not only to a citizen of India but to
every person, cannot be trifled with merely on a presumptive plane. We should also keep in
perspective the fact that Parliament has carried out amendments to this pandect comprising
Sections 437 to 439, and, therefore, predicates on the well-established principles of
interpretation of statutes that what is not plainly evident from their reading, was never
intended to be incorporated into law. Some salient features of these provisions are that
whilst Section 437 contemplates that a person has to be accused or suspect of a non-bailable
offence and consequently arrested or detained without warrant, Section 439 empowers the
Session Court or High Court to grant bail if such a person is in custody. The difference of
language manifests the sublime differentiation in the two provisions, and, therefore, there is
no justification in giving the word ‘custody’ the same or closely similar meaning and content
as arrest or detention. Furthermore, while Section 437 severally curtails the power of the
Magistrate to grant bail in context of the commission of non-bailable offences
punishable with death or imprisonment for life, the two higher Courts have only the
procedural requirement of giving notice of the Bail application to the Public Prosecutor,
which requirement is also ignorable if circumstances so demand. The regimes regulating
the powers of the Magistrate on the one hand and the two superior Courts are decidedly and
intentionally not identical, but vitally and drastically dissimilar. Indeed, the only complicity
that can be contemplated is the conundrum of ‘Committal of cases to the Court of Session’
because of a possible hiatus created by the CrPC.

2. STATE THROUGH CBI V. AMAR MANI TRIPATHI

Amarmani Tripathi, a Minister in the U.P. Government, at the relevant time, was having an
affair with deceased Madhumita Shukla, a young Poetess. This led to Madhumita's pregnancy
thrice. On the first two occasions, the pregnancy was aborted at the instance of Amarmani.
On the third occasion, inspite of pressure and persuasion by Amarmani, Madhumita refused
to abort the pregnancy. The post-mortem revealed a six month old foetus in her womb.
D.N.A. test of the foetus established the paternity of Amarmani.

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 accused absconding or fleeing if released on bail; (v) character,
behavior, 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.

20. The evidence collected above discloses that there were repeated attempts by the
accused Amarmani to interfere, and side track the investigation and threaten the
witnesses to come out with a story that will deflect the suspicion from him and his wife
to Anuj Mishra or others. It is also not in dispute that Amarmani was on bail in a
kidnapping case, when he indulged in these activities in May, 2003. These materials were
placed by the prosecution before the High Court to establish a reasonable apprehension of
tampering. The learned Single Judge has, however, completely ignored these materials
relating to tampering with evidence/witnesses. This necessitates interference with the order of
the High Court.

In the present case, we find that the High Court has granted bail being of the opinion that the
extra judicial confession given by Rohit Chaturvedi to one of the co-accused may not stand
the test of scrutiny by a judicial mind but that by itself was not sufficient to grant the bail.
There is voluminous evidence collected by the CBI to show the involvement of Amarmani
Tripathi, and his effort to interfere with the investigation of the case before the grant of bail
and also after the grant of bail. He tried to change the course of investigation by creating
false evidence of the marriage of Madhumita with Anuj Mishra with the help of Yagya
Narain Dixit, a police officer, the 6th accused who died in an accident during the course of
investigation. There are written complaints with the investigating agency showing that after
his release on bail Amarmani Tripathi tried to threaten as well as win over Nidhi Shukla,
sister of the deceased, and her mother by offering bribe. In our opinion, the High Court
gravely erred in granting bail to Amarmani Tripathi in such circumstances. The High Court
practically failed to consider/take into consideration the voluminous evidence which had been
collected by the investigation agency and have been referred to by them in their statement of
objections to the application for grant of bail.

Madhumani

It is true that the position of Madhumani is somewhat different from the case of her husband.
While her husband is a politician and ex-Minister, she is no doubt a house wife. While her
husband has several criminal cases against him, she has no such record. While there is
material to show attempts by her husband to tamper with the evidence and threaten witnesses,
there is nothing to show that she made any attempt to tamper with the evidence. But
there is material to show that she had absconded for several months and surrendered only
when bail was refused to her husband on the ground that she was absconding. Further
when the matter is considered in entirety, with reference to the murder of Madhumita and the
propensity of the husband and wife to pressurize and persuade others to act according to their
wishes there is reasonable ground for apprehension that if her husband alone is taken into
custody; leaving her to remain outside, she may take over the task of tampering the
evidence and manipulating/threatening witnesses. Therefore, interference is called for
even in regard to the bail granted to Madhumani.

Para 10-11

3. SHIVAJI SAHEBRAO BOBDE & ANR V. STATE OF MAHARASHTRA

The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social
defence and to the soothing sentiment that all acquittals are always good regardless of justice
to the victim and the community,' demand especial emphasis in the contemporary context of
escalating crime and escape. The judicial instrument has a public accountability. The
cherished principles or golden thread of proof beyond reasonable doubt which runs
through the web of our law should not be stretched morbidly to embrace every hunch,
hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a
thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only
reasonable doubts belong to the accused. Otherwise any practical system of justice will
then break down and lose credibility with the community. The evil of acquitting a guilty
person light-heartedly as a learned author(1) has sapiently observed, goes much beyond the
simple fact that just one guilty person has gone unpunished. If unmerited acquittals become
general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public
demand for harsher legal presumptions against indicated 'persons' and more severe
punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead
to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all
these reasons it is true to say', with Viscount Simon, that "a miscarriage of justice may arise
from the acquittal of the guilty no less than from the conviction of the innocent."

-In short, our jurisprudential enthusiasm for presumed innocence must be moderated by
the pragmatic need to make criminal justice potent and realistic. A balance has to be
struck between chasing enhance possibilities as good enough to set the delinquent free
arid chopping the logic of preponderant probability to, punish marginal innocents. 

4. SANJAY CHANDRA V. CBI, 2011, SUPREMW COURT

Para 14: 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.

Para 15: 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 Code of Criminal Procedure. 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.

Para 25: 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.
 5. TAHSILDAR SINGH V. STATE OF UP (ONLY THIS PART WAS DISCUSSED)CLEARLY

NOT BAIL CASE.

An omission in the police statement could amount to a statement and be used as a

contradiction only when (i) it was necessarily implied from the recital or recitals found in the
statement, (ii) it was negative aspect of a positive recited in the statement or (iii) when the
statement before the police and that before the Court could not stand together. It was for the
trial judge to decide in each case, after comparing the part or parts of the statement
recorded by the police with that made in the witness-box, whether the recital intended
to be used for contradiction was one of the nature indicated above.

Considerations for granting bail [Renjith made us write in class]

1. Court should consider the enormity of the charge.

2. Nature of accusation.

3. The punishment the offender will receive upon conviction.

4. Nature of the evidence in support of evidence (Don’t appreciate evidence- what

happened in Amar Mani Tripathi).

5. Chances of witness being tampered.

6. Protracted nature of the trial [Not given much importance in Court]. I need to
prepare my defence.

7. Opportunity for the applicant for preparing defence and access to the Counsel.

8. Health, sex, age.

 9. Circumstances under which the accused committed the offence.

10. Chances of absconding + repeating the offence.

11. Status of the accused in relation with victim and witnesses.

12. Interest of the society: Whether bail would thwart the ends of justice i.e likelihood
of the bailed person to commit an offence when free from custody.

ANTICIPATORY BAIL: IMMINENCE OF BEING ARRESTED

Section 438: (1) When any person has reason to believe that he may be arrested on an
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; and that Court may, if it thinks fit,
direct that in the event of such arrest, he shall be released on bail.

(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 think 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 issue 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).
 1. GURUBAKSH SINGH SIBBIA V. STATE OF PUNJAB

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. Police custody is an inevitable concomitant of arrest for non-bailable
offences. An order of anticipatory bail constitutes, so to say, an insurance against police
custody following upon arrest for offence or offences in respect of which the order
is issued. 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 issued 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 the custody by word or action". A direction under section 438 is intended to
confer conditional immunity from this 'touch' or confinement.

Sub-section (2) of Section 438 is a further and clearer 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 impairement 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, in so
far 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.

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". 

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. 

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". 

Power conferred by Section 438 is of an extraordinary character in the sense indicated

above, namely, that it is not ordinarily resorted to like the power conferred by Sections
437 and the power to grant anticipatory bail should be exercised with due care and
circumspection.

Important para

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.

It 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
grounds that, after all "the legislature in its wisdom" has thought it fit to use a particular
expression.

Some brief conclusions:

1. Belief not fear

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 someone 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 applications 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 and all kinds of accusations, likely or unlikely.

2. Court to apply own mind

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.

3. Filing of FIR not compulsory

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 F.I.R. is not yet filed.

4. If FIR filed, ya ya

Anticipatory bail can be granted even after an F.I.R. is filed, so long as the applicant has not
been arrested.

5. After arrest – nope

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, in so
far 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.
 2. SIDDHARAM SATLINGAPPA MHETRE V. STATE OF MAHARASHTRA

Sibbia discussed

41st LCR discussed

Liberty and Art. 21 discussed

It is a settled legal position that the court which grants the bail also has the power to cancel it.
The discretion of grant or cancellation of bail can be exercised either at the instance of the
accused, the public prosecutor or the complainant on finding new material or circumstances
at any point of time.

The court which grants the bail has the right to cancel the bail according to the provisions of
the General Clauses Act but ordinarily after hearing the public prosecutor when the bail order
is confirmed then the benefit of the grant of the bail should continue till the end of the trial of
that case.

 Section 438 Cr.P.C. does not mention anything about the duration to which a direction for
release on bail in the event of arrest can be granted. The order granting anticipatory bail is a
direction specifically to release the accused on bail in the event of his arrest. Once such a
direction of anticipatory bail is executed by the accused and he is released on bail,
the concerned court would be fully justified in imposing conditions including direction of
joining investigation.

The court must bear in mind that at times the applicant would approach the court for grant of
anticipatory bail on mere apprehension of being arrested on accusation of having committed a
non-bailable offence. In fact, the investigating or concerned agency may not otherwise arrest
that applicant who has applied for anticipatory bail but just because he makes an application
before the court and gets the relief from the court for a limited period and thereafter he has to
surrender before the trial court and only thereafter his bail application can be considered and
life of anticipatory bail comes to an end. This may lead to disastrous and unfortunate
consequences. The applicant who may not have otherwise lost his liberty loses it because
he chose to file application of anticipatory bail on mere apprehension of being arrested
on accusation of having committed a non-bailable offence. No arrest should be made
because it is lawful for the police officer to do so. The existence of power to arrest is one
thing and the justification for the exercise of it is quite another. The police officer must
be able to justify the arrest apart from his power to do so. This finding of the said
judgment (supra) is contrary to the legislative intention and law which has been declared by a
Constitution Bench of this court in Sibbia's case (supra).

The following factors and parameters can be taken into consideration while dealing
with the anticipatory bail:

i. The NATURE AND GRAVITY OF THE ACCUSATION and the exact role of the accused must be
properly comprehended before arrest is made;

ii. The ANTECEDENTS OF THE APPLICANT INCLUDING THE FACT AS TO WHETHER THE

ACCUSED 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 ; iv. The possibility of the
accused's likelihood to repeat similar or the other offences.

v. Where the ACCUSATIONS HAVE BEEN MADE ONLY WITH THE OBJECT OF INJURING OR

HUMILIATING the applicant by arresting him or her.

vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a
very large number of people.

vii. The courts MUST EVALUATE THE ENTIRE AVAILABLE MATERIAL against the accused
very carefully. The court must also clearly comprehend the exact role of the accused in the
case. The cases in which accused is implicated with the help of sections 34 and 149 of the
Indian Penal Code, the court should consider with even greater care and caution because over
implication in the cases is a matter of common knowledge and concern;

viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck
between two factors namely, NO PREJUDICE SHOULD BE CAUSED TO THE FREE, FAIR AND

FULL INVESTIGATION AND THERE SHOULD BE PREVENTION OF HARASSMENT,

HUMILIATION AND UNJUSTIFIED DETENTION OF THE ACCUSED ;

ix. The court to consider REASONABLE APPREHENSION OF TAMPERING OF THE WITNESS OR

APPREHENSION OF THREAT to the complainant;

x. Frivolity in prosecution should always be considered and it is only the ELEMENT OF

GENUINENESS that shall have to be considered in the matter of grant of bail and in the event
of there being some doubt as to the genuineness of the prosecution, in the normal course of
events, the accused is entitled to an order of bail.

The arrest should be the last option and it should be restricted to those exceptional cases
where arresting the accused is imperative in the facts and circumstances of that case.

CHARGE- SECTION 211-224

“For what offence are we charging that person?”

Appa Sahib v. State of Karnataka

General Law: separate trials for separate charges.

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 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.

Section 464: irregularity, provided that if the Court is of opinion that no valid charge stands
for accused, quash the conviction.

Section 216(3): If the alteration or addition to a charge is such that proceeding immediately
with the trial is not likely, in the opinion of the court to prejudice the accused [William
Slaney v. State of MP] 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.

Imp: (5) lf the offence stated in the altered or added charge is one for the prosecution of
which previous section is necessary, the case shall not be proceeded with until such sanction
is obtained, unless sanction had been already obtained for a prosecution on the same facts as
those on which the altered or added charge is founded.

218. Separate charges for distinct offences.

(1) For every distinct offence of which any person is accused there shall be a separate charge
and every such charge shall be tried separately.

Provided that 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.

(1) Nothing in sub-section (1) shall affect the operation of the provisions of sections
219, 220, 221 and 223.

Exceptions:

1. Desire of the accused.

2. 3 offences of same kind within a year may be charged together.

3. More offences in same transaction.

4. Offences of criminal breach of trust or dishonest misappropriation of property or

companion offences of falsification of accounts (S. 220).

5. Same act falling under different definition of offences.

6. Act forming an offence, also constitutes different offences when taken separately
or in groups.

7. Where it is doubtful as to what offence has been committed.

8. Section 223: certain persons may be charged jointly.

 SENTENCING
There’s no point to this topic.

1. UDAY BHAN V STATE

The High Court did not interfere with the fine imposed on the respondents for the offence
noted above as well as for the offence under Section 323 IPC but reduced the sentence for
imprisonment which was R.I. for 10 years for the offence punishable under Section 307 as
well as Section 307 read with Section 34 of the IPC to a period already undergone by the
respondents which was of one year and nine months only.

The High Court accepted the contention advanced on behalf of the accused that the evidence
on record did not establish any intention on the part of the accused persons to kill the
complainant or his brother, the two injured in this case. The High Court did not doubt nor
did the accused persons raise any contention that the injury sustained by the
complainant on head was not a grievous injury.

Court disagreeing with High Court

The High Court did not even note down the six injuries on the complainant which included a
grievous injury on the temporal part, a reddish blue mark on the upper side of right eye,
another injury having blue mark on the forehead and another wound on the eyebrow on the
right eye. There was hardly any mitigating circumstance to take such a lenient view as
has been done by the High Court. The law on the principles governing proper
sentencing has been elaborated by this Court in large number of cases. It is the duty of
the Court awarding sentence to ensure justice to both the parties and therefore undue
leniency in awarding sentence needs to be avoided because it does not have the
necessary effect of being a deterrent for the accused and does not re-assure the society
that the offender has been properly dealt with. It is not a very healthy situation to leave the
injured and complainant side thoroughly dissatisfied with a very lenient punishment to the
accused. In the present case the order of punishment imposed by the High Court suffers from
the vice of being over-lenient even in absence of any mitigating circumstance.

In such a situation, the interest of justice requires interference with the punishment imposed
by the High Court. The ends of justice would be satisfied by imposing on all the three
accused persons a sentence of rigorous imprisonment for three years in place of period
already undergone, for the offence under Section 326 as well as Section 326/34 of the IPC. 

2. STATE OF PUNJAB V. SAURABH BAKSHI

Sentencing under Section 307 of IPC: death by rash and negligent driving. The SC took note
of the fact that he was convicted by both Trial Court & HC.

The learned Addl. Chief Judicial Magistrate, Patiala convicted the respondent for the offences
punishable under Section 304A IPC and sentenced him to undergo rigorous imprisonment for
a period of one year and pay a fine of Rs.2000/- with a default clause. High Court upheld the
conviction and reduced the sentence, to the period already undergone.

While every mitigating or aggravating circumstance may be given due weight, mechanical
reduction of sentence to the period already undergone cannot be appreciated. Sentence has to
be fair not only to the accused but also to the victim and the society. It is also the duty of the
court to duly consider the aspect of rehabilitating the victim.

In the present case, it will be appropriate, in the interests of justice, to award interim
compensation of Rs. 3 lakhs Under Section 357-A payable out of the funds available/to be
made available by the State of Madhya Pradesh with the District Legal Services, Authority,
Guna. In case, the accused does not pay the compensation awarded as above, the State of
Madhya Pradesh will pay the entire amount of compensation of Rs. 5 lakhs within three
months after expiry of the time granted to the accused.

It cannot be said as a proposition of law that whenever an accused offers acceptable

compensation for rehabilitation of a victim, regardless of the gravity of the crime under
Section 304A, there can be reduction of sentence.

It cannot be said as a proposition of law that whenever an accused offers acceptable

compensation for rehabilitation of a victim, regardless of the gravity of the crime under
Section 304A, there can be reduction of sentence.

Sentencing must have a policy of correction.

Be it noted, grant of compensation under the provisions of the Motor Vehicles Act, 1988 is in
a different sphere altogether. Grant of compensation under Section 357(3) CrPC with a
direction that the same should be paid to the person who has suffered any loss or injury by
reason of the act for which the accused has been sentenced has a different contour and the
same is not to be regarded as a substitute in all circumstances for adequate sentence.

The fundamental purpose of imposition of sentence is based on the principle that the accused
must realise that the crime committed by him has not only created a dent in his life but also a
concavity in the social fabric.

Needless to say, the principle of sentencing recognizes the corrective measures but there are
occasions when the deterrence is an imperative necessity depending upon the facts of the
case. In our opinion, it is a fit case where we are constrained to say that the High Court has
been swayed away by the passion of mercy in applying the principle that payment of
compensation is a factor for reduction of sentence to 24 days. It is absolutely in the realm of
misplaced sympathy. It is, in a way mockery of justice. Because justice is "the crowning
glory", "the sovereign mistress" and "queen of virtue" as Cicero had said. Such a crime
blights not only the lives of the victims but of many others around them. It ultimately shatters
the faith of the public in judicial system. In our view, the sentence of one year as imposed by
the trial Magistrate which has been affirmed by the appellate court should be reduced to six
months.

3. RAJESH V STATE OF KERALA

Suicide pact-mother, son and daughter go to a place-son kills daughter with consent.
even though under the suicide pact, with their consent, he killed his own mother and sister, in
view of the nature of crime, a very lenient view cannot be taken. We convict and sentence
him to undergo imprisonment for ten years and to pay a fine of Rs.2,000/- under section 304
Part I of the Indian Penal Code and in default of payment of fine he shall undergo
imprisonment for another three months. [No reasons given]

4. RAJ BHALA V STATE OF HARYANA- ABETMENT TO SUICIDE

Gopal Singh v. State of Uttrakhand

The principle of just punishment is the bedrock of sentencing in respect of a criminal offence.
A punishment should not be disproportionately excessive. The concept of proportionality
allows a significant discretion to the Judge but the same has to be guided by certain
principles. In certain cases, the nature of culpability, the antecedents of the accused, the
factum of age, the potentiality of the convict to become a criminal in future, capability of his
reformation and to lead an acceptable life in the prevalent milieu, the effect-propensity to
become a social threat or nuisance, and sometimes lapse of time in the commission of the
crime and his conduct in the interregnum bearing in mind the nature of the offence, the
relationship between the parties and attractability of the doctrine of bringing the convict to
the value based social mainstream may be the guiding factors. Needless to emphasise, these
are certain illustrative aspects put forth in a condensed manner. We may hasten to add that
there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It
would be dependent on the facts of the case and rationalised judicial discretion. For every
offence, a drastic measure cannot be thought of Similarly, an offender cannot be allowed to
be treated with leniency solely on the ground of discretion vested in a court. The real
requisite is to weigh the circumstances in which the crime has been committed and other
concomitant factors which we have indicated hereinbefore and also have been stated in a
number of pronouncements by this Court.

Shailesh Jasvantbhai v. State of Gujarat

The facts and given circumstances in each case, the nature of the crime, the manner in which
it was planned and committed, the motive for commission of the crime, the conduct of the
accused, the nature of weapons used and all other attending circumstances are relevant facts
which would enter into the area of consideration. Therefore, undue sympathy to impose
inadequate sentence would do more harm to the justice system to undermine the public
confidence in the efficacy of law, and society could not long endure under such serious
threats.

Court: actually non-mitigating factors applied by Trial Court:

No useful purpose would be serve by sending the accused persons to jail for undergoing
their remaining sentences of imprisonment, for the High Court itself has recorded that the
Appellants therein had remained in custody only for a period of four months and twenty days.

The learned trial Judge has arrived at the conclusion that the Respondents had committed the
offence Under Section 306 Indian Penal Code. He has applied the test that the accused
persons are first offenders and belong to weaker section of the society. Another mitigating
fact that has been recorded is that daughter of the accused Satbir Singh was teased.
The learned trial Judge has, on the basis of the appreciation of the evidence on record, come
to the conclusion that the deceased was assaulted and being apprehensive of further torture,
he committed suicide. The mitigating factors which have been highlighted by the learned trial
Judge are absolutely non-mitigating factors and, in a way, totally inconsequential for
imposing a sentence of three years.

The approach of the High Court, as the reasoning would show, reflects more of a casual
and fanciful one rather than just one. A Court, while imposing sentence, has a duty to
respond to the collective cry of the society.

In the instant case, we are constrained to say that the learned Single Judge while dealing with
the appeal preferred by the Respondents has remained quite unmindful and unconcerned to
the obvious and, therefore, the reduction of sentence by the High Court to the period already
undergone is set aside and the sentence imposed by the learned trial Judge is restored.

5. ATTORNEY GENERAL V LICHMA DEVI

Public hanging case

A. Not mentioned in the Jail Manual

B. Would be violative of Art. 21 if Jail manual is so amended.

C. Barbaric crime does not have to be visited with a barbaric penalty such as public

hanging

The Bench has, by this order dated 11th December, 1985, directed that the execution of the
death sentence should be carried out "in terms of the procedure provided in the rules
mentioned above in the Jail Manual only, unless by that time any amendment is made in the
Rules". It is clear from this order dated 11th December, 1985 that it is only because the Jail
Rules do not provide for execution of death sentence by public hanging that the Bench
appears to have been constrained to revoke the order directing execution of the death
sentence by public hanging and that is why the Bench seems to have said that the death
sentence should not be carried out by public hanging unless by the time the death sentence
comes to be executed, any amendment is made in the Rules by the State Government
providing public hanging. It is not because of the barbaric nature of the sentence of public
hanging that the Bench appears to have decided to revoke the earlier order made by it. We
would like to make it clear that the execution of death sentence by public hanging would
be a barbaric practice clearly violative of Article 21 of the Constitution and we are glad
to note that the Jail Manual of no State in the country makes provision for execution of
death sentence by public hanging which, we have no doubt, is a revolting spectacle
harking back to earlier centuries. We have no doubt that the expectation of the Bench that
an amendment might be made in the Rules providing for public hanging is bound to be
belied. The direction for execution of the death sentence by public hanging is, to our mind,
unconstitutional and we may make it clear that if any Jail Manual were to provide public
hanging, we would declare it to be violative of Article 21 of the Constitution. It is
undoubtedly true that the crime of which the accused have been found to be guilty - (on the
merits or correctness of which we do not express any opinion since in one case a statutory
right of appeal is given to the accused and in the other, leave to appeal has been granted and
both the appeals would, therefore, be before this Court) is barbaric and a disgrace and
shame on any civilised society which no society should tolerate; but a barbaric crime
does not have to be visited with a barbaric penalty such as public hanging.