Investigation Process - Role of Courts

And
Scope and relevance of statements recorded U/Sec.
161 & 164 Cr.P.C.
Paper submitted by:

G.Satya Prabhakara Rao,

II Addl. Spl. Judge for CBI Cases,
Visakhapatnam.
Sub – Topic – I :

Investigation Process - Role of Courts

Definition:

Clause(h) of section 2 of Criminal Procedure Code (in short

Cr.P.C.) defines the term "Investigation" in an exclusive manner

"so as to bring into its fold all the proceedings under the

code of Criminal Procedure for collection of evidence

conducted by a police officer or by any person, other than

a Magistrate, duly authorized by a Magistrate in that

behalf."

Thus, investigation is a careful search or examination with an

intention to discover facts.

It requires a liberal approach :

The Honourable apex Court in AIR 2009 Supreme Court,

984, Between: "Nirmal Singh Kahlon Vs State of Punjab

and others", pleased to hold that :

"Definition and scope of the

expression investigation
 and officer In-Charge of a

Police Station must receive

a liberal interpretation."

How an investigation should be :

In (2015) 2 SCC 62, Between: Balinder Kaur Vs State

of Punjab ( Two Judges Bench )

Pleased to hold that "The criminal investigation plays an

important and special role in the administration of

Criminal Justice. The investigation must be conducted in

an unbiased manner and investigation must be with

objectivity and dispassionate approach to men and

matters and the investigation officer must make a truthful

presentation of the materials collected. Being the

foundation stone of the prosecution, the investigation

officer must be trained to adopt proper techniques of

investigation and scientific temper must be included in

them."

Types of Investigation are clearly described in 2013 (1) ALD

(Crl.) 519, Between: Vinay Tyagi Vs Irshad Ali alias Deepak

and others (Two Judges Bench) as follows:

i. Initial Investigation

ii. Further Investigation

iii. Fresh or de novo or re-investigation.

 The Initial Investigation is the one which the empowered

police officer shall conduct in furtherance to registration of an FIR.

Such investigation itself can lead to filing of a final report under

section 173 (2) of the Code and shall take within its ambit the

investigation which the empowered officer shall conduct in

furtherance of an order for investigation passed by the Court of

competent jurisdiction in terms of Section 156(3) of the Code.

Further investigation is where the Investigating Officer

obtains further oral or documentary evidence after the final

report has been filed before the Court in terms of Section 173(8).

This power is vested with the Executive. It is the continuation of a

previous investigation and, therefore, is understood and described

as a "further investigation", Scope of such investigation is

restricted to the discovery of further oral and documentary

evidence. Its purpose is to bring the true facts before the Court

even if they are discovered at a subsequent stage to the primary

investigation. It is commonly described as "Supplementary

Report". "Supplementary Report" would be the correct

expression as the subsequent investigation is meant and intended

to supplement the primary investigation conducted by the

empowered police officer. Another significant feature of further

investigation is that it does not have the effect of wiping out

directly or impliedly the initial investigation conducted by the

investigating agency. This is a kind of continuation of the previous

investigation. The basis is discovery of fresh evidence and in

continuation of the same offence and chain of events relating to

the same occurrence incidental thereto. In other words, it has to

be understood in complete contradistinction to a "re-

investigation", "fresh" or "de novo" investigation.

However, in the case of a "fresh investigation",

"reinvestigation" or "de novo investigation" there has to be

a definite order of the Court. The order of the Court

unambiguously should state as to whether the previous

investigation, for reasons to be recorded, is incapable of be

infected upon. Neither the investigating agency nor the

Magistrate has any power to order or conduct "fresh

investigation". This is primarily for the reason that it would be

opposed to the scheme of the Code. It is essential that even an

order of "fresh"/"de novo" investigation passed by the higher

Judiciary should always be coupled with a specific direction as to

the fate of the investigation already conducted. The case where

such direction can be issued are few and far between. This is

based upon a fundamental principle of our criminal jurisprudence

which is that it is the right of a suspect or an accused to have a

just and fair investigation and trial. This principle flows from the

constitutional mandate contained in Articles 21 and 22 of the

Constitution of India. Where the investigation ex facie is unfair,

tainted, mala fide and smacks of foul play, the Courts would set

aside such an investigation and direct fresh or de novo

investigation and, if necessary, even by another independent

investigating agency. This is a power of wide plenitude and,

therefore, has to be exercised sparingly. The principle of rarest of

rate cases would squarely apply to such cases. Unless the

unfairness of the investigation is such that it pricks the judicial

conscience of the Court, the Court should be reluctant to interfere

in such matters to the extent of quashing an investigation and

directing a "fresh investigation".

The law declared by this Court consistently is that the

learned Magistrate has no jurisdiction to direct "fresh" or "de

novo" investigation. However, once the report is filed, the

Magistrate has jurisdiction to accept the report or reject the same

right at the threshold. Even after accepting the report, it has the

jurisdiction to discharge the accused or frame the charge and put

him to trial. But there are no provisions in the Code which

empower the Magistrate to disturb the status of an accused

pending investigation or when report is filed to wipe out the

report and its effect in law.

The superior Courts have the jurisdiction under Section 482

of the Code or even Article 226 of the Constitution of India to

direct "further investigation", "fresh", or "de novo" and even

"reinvestigation". "Fresh", "de novo" and "reinvestigation"

are synonymous expressions and their result in law would be the

same. The superior Courts are even vested with the power of

transferring investigation from one agency to another, provided

the ends of justice so demand such action. Of course, it is also a

settled principle that this power has to be exercised by the

superior Courts very sparingly and with great circumspection.

What ultimately is the aim or significance of the expression

"fair and proper investigation" in criminal jurisprudence? It

has a twin purpose. Firstly, the investigation must be unbiased,

honest, just and in accordance with law. Secondly, the entire

emphasis on a fair investigation has to be to bring out the truth of

the case before the Court of competent jurisdiction. Once these

twin paradigms of fair investigation are satisfied, there will be the

least requirement for the Court of law to interfere with the

investigation, much less quash the same, or transfer it to another

agency. Bringing out the truth by fair and investigative means in

accordance with law would essentially repel the very basis of an

unfair, tainted investigation or cases of false implication. Thus, it

is inevitable for a Court of law to pass a specific order as to the

fate of the investigation, which in its opinion is unfair, tainted and

in violation of the settled principles of investigative canons.

It is held, therefore, that no investing agency is empowered

to conduct a "fresh", "de novo" or "re-investigation" in

relation to the offence for which it has already filed a report in

terms of Section 173(2) of the Code. It is only upon the orders of

the higher Courts empowered to pass such orders that aforesaid

investigation can be conducted, in which event the higher Courts

will have to pass a specific order with regard to the fate of the

investigation already conducted and the report so filed before the

Court of the learned Magistrate.

Order under Section 156(3) Cr.P.C. is in nature of a

peremptory reminder or intimation to police to exercise its

primary duty and power of investigation:

In this context, the Honourable Supreme Court in 2013

Cri. LJ, 776 (SC) (Two Judges Bench), Between Anju

Chaudhary Vs State of UP and another, pleased to hold as

follows:

Section 156 primarily deals with the powers of a police office

to investigate a cognizable case. While dealing with the

application or passing an order under Section 156(3), the

Magistrate does not take cognizance of an offence. When the

Magistrate had applied his mind only for order an investigation

under Section 156(3) of the Code or issued a warrant for the said

purpose, he is not said to have taken cognizance. It is an order in

the nature of a pre-emptory reminder or intimation to the police

to exercise its primary duty and power of investigation in terms of

Section 151 of the Code. Such an investigation embraces the

continuity of the process which begins with collection of evidence

under Section 156 and ends with the final report either under

Section 159 or submission of charge-sheet under Section 173 of

the Code.

The Magistrate is competent to treat even a complaint

termed as an application and pass orders under Section 156(3),

but where it takes cognizance, there it would have to be treated

as a regular complaint to be tried in accordance with the

provisions of Section 200 onwards falling under Chapter XV of the

Code. There also the Magistrate is vested with the power to direct

investigation to be made by a police officer or by such other

person as he thinks fit for the purposes of deciding whether or not

there is sufficient ground for proceeding. This power is restricted

and is not as wide as the power vested under Section 156(3) of

the Code. The power of the Magistrate under Section 156(3) of

the Code to order investigation by the police have not been

touched or affected by Section 202 because these powers are

exercised even before the cognizance is taken. In other words,

Section 202 would apply only to cases when Magistrate has taken

cognizance and chooses to enquire into the complaint either

himself or through any other agency. But there may be

circumstances where the Magistrate, before taking cognizance of

the case himself, chooses to order a pure and simple investigation

under Section 156(3) of the Code.

Can a police officer refuse to register FIR under Section

154 Cr.P.C. when a complaint is referred by Magistrate

under Section 156(3) Cr.P.C.- ?

Ans: NO

The police officer in this connection is obliged to receive

complaint, register it as an FIR under Section 154 and cause

investigation there into. It is not open to him either to refuse to

cause investigation or even to inform Magistrate that it is

appropriate that investigation be caused by another police

station (Akbaruddin owaisi Vs Govt. Andhra Pradesh and

others, in 2013 (3)ALT (Crl.) 251).

 Steps in Investigation

Registration of FIR

Sending the reports to

the higher official and
Court

Spot inspection

Examining the persons acquainted with

the facts of the occurrence conduct
inquest, post-mortem examination

Arrest of the accused and

seizure of properties

Sketch and Mahajar

preparations

Making request before the Magistrate to

send the M.O's for Chemical
examination

Collection of all
evidences

Filing Charge-Sheet
(Chalan)
 The various steps of investigation are duly considered in

2014 (2) ALD (Crl.) 810, Between: GBC Raj Gopal Vs

Governor of Andhra Pradesh and others, as follows :

Under Chapter XII of the Cr.P.C., investigation consists

generally of the following steps: (1) proceeding to the spot, (2)

ascertainment of the facts and circumstances of the case, (3)

discovery and arrest of the suspected offender, (4) collection of

evidence relating to the commission of the offence which may

consist of (a) the examination of various persons (including the

accused) and the reduction of their statements into writing, if the

officer thinks fit, (b) the search of places or seizure of things

considered necessary for the investigation and to be produced at

the trial, and (5) formation of the opinion as to whether, on the

material collected, there is a case to place the accused before a

Magistrate for trial.

A referred final report is filed by investigating officer by

referring the case as that of Civil nature and protest petition is

filed by complainant. In such a case notice to accused is not

contemplated, but, the procedure contemplated is to issue notice

to complainant. It was held in 2014 (1) ALD (Crl.)727 (AP) that

"as investigation was conducted only on the basis of

complaint given by victim, it is incumbent to inform victim

as to result of investigation and orders thereon."

Collection of representation / material from accused

persons and to act up on it by way of further investigation

by investigating officer is Bad.

In 2014 (1) ALD (Crl.) 727 (AP), Between : Shaheen

Hussain Khan and another Vs State of Andhra Pradesh and

another, it was held that "after registration of the crime and

once the accused is arrested and was sent to Court with a

remand report, till the final report is closed by the Court,

the matter has to be treated as pending before the Court

and in pending matters, police have no right to take any

representation or material concerning the case from

accused persons without permission of the Court. When

the crime was pending in the Court, collecting

representation or material from the accused persons by

the Investigating Officer is absolutely incorrect and

contrary to the procedure. If accused has got any

objection as to the crime registered against him, he

should report to the Court but not to the Investigating

Officer. Further, the Investigating Officer also, if accused

submits any representation, he should forward the same

to the Court but he cannot act on it".

Once Final Report is filed by police, the Magistrate has

jurisdiction to ignore opinion expressed by investigating officer

and he can independently apply his mind to facts that have

emerged from investigation and Magistrate can thus, disagree

with police report, take cognizance and issue process and

summons to accused. (Held in AIR 2015 SC 3566 (Two Judges

Bench), Between : Chandra Babu alias Moses Vs State,

through Inspector of Police and others).

INVESTIGATION & ENQUIRY - DIFFERENCE

"Investigation" is different from "Enquiry". Investigation

is done by the Police Officer, whereas, enquiry is conducted by a

Magistrate. In proceedings relating to Warrant Procedure Cases,

there are two distinct stages. The first stage is known as

"Enquiry" and these onstage is known as "Trial". "Enquiry"

starts when the Magistrate, who receives a complaint or charge

sheet takes cognizance of an offence and it comes to a close with

the framing of a Charge. "Enquiry" may even end in discharge

of the accused in which cases no Charge will be framed and there

will be no trial. The second stage called "Trial" begins with the

framing of the Charge after enquiry and ends with the

pronouncement of the Judgement, whether it is a Judgement of

"Conviction" or "Acquittal". In the case of offences, which are

triable by summons procedure there will not be any enquiry and

trial starts with the Magistrate taking cognizance of the offence

and ends with the disposal of the case.

Sub-Topic – II :

Scope and relevance of statements recorded U/Sec. 161 &

164 Cr.P.C.

In criminal justice delivery system trial is genus, of

which contradiction and omission are species. To prove

guilt of accused, prosecution has to prove all ingredients

of offence beyond all reasonable doubt. Evidence of

prosecution is fundamentally emerges from investigation.

It is settled law that the Courts have to convict the accused

only on the basis of legal evidence. There should not be any

moral conviction. The basic principle is that the evidence, which

is admissible as per the provisions of the Indian Evidence Act,

1872, Criminal Procedure Code, 1973 and other enactments

should establish the guilt of the accused. Therefore, the Courts

have to follow the settled legal principles keeping away personal

whims and fancies.

There can not be any presumption that 161(3) Cr.P.C.

statement would reveal truth. To enquire trustworthiness and

truthfulness of witness, contradiction and omission are very

important. It helps defence and also to prosecution when

particular witness turn over from his previous statement given

during investigation or enquiry and not support prosecution case.

Word “contradiction” found its roots in “Bible” the holy

religious book of Christianity. Means that two antithetical

propositions cannot both be true at the same time and in the

same sense. In classical logic, a contradiction consists of a logical

incompatibility between two or more propositions. It occurs when

the propositions, taken together, yield two conclusions which form

the logical, usually opposite in versions of each other Illustrating a

general tendency in applied logic, Aristotle’s law of non-

contradiction states that “One cannot say of something that

it is and that it is not in the same respect and at the same

time”.

But here with reference to law of evidence we have to

understand word “contradiction” and “omission”. To simply

comprehend contradiction we should consider Cr.P.C. 161, 162

and Sec. 145, 154 of Evidence Act altogether.

Contradictions :

Means a statement in evidence given by a witness on a

material fact, contrary to earlier statement said to have been

given by said witness when he was examined by police.

Omissions :

Omission is a statement of a witness while giving evidence

on a material fact which he did not state before police.

Sec. 161 Statement – Evidentiary value:

That portion of the statement recorded under Section 161

which is proposed to be used for the contradicting the witness

should first of all be brought to his notice and he should be

questioned about it. For example let us take a case where an

accused person is being prosecuted for causing grievous hurt to X

with an axe. If X whose evidence is recorded in the Court stated in

the course of his evidence that the accused struck him with the

axe in such a way that the metallic head of the axe came into

contact with his arm causing a fracture, and if in the course of the

investigation he had stated that the accused had beat him with

the handle namely the stick portion of the axe, then X should first

of all be asked whether he had stated before the Investigating

Officer that he was beaten by the accused with the stick portion

of the axe. The exact passage occurring in his statement under

Section 161 should be read out and put to the witness whether

the witness admits or denies having made such a statement

before the Investigating Officer, the exact statement which was

read out to the witness should be incorporated verbatim in the

deposition within inverted commas. If the witness admits having

made that statement there is no need to give it a separate exhibit

number and no further proof of that statement is required. If on

the other hand the witness denies having made such a statement,

then exhibit number “D” series should be given to that passage

and that passage should be accordingly marked in the case diary

statement supplied to the Court. “Thereupon, it should be

mentioned in the deposition itself within brackets that exhibit D.1

or D.2 as the case may be, is the relevant passage from the

statement of the witness recorded under Section 161 Cr.P.C. By

this process the statement is merely brought on record. But it is

yet to be proved. When the Investigating Officer who recorded

the statement is examined in the Court the passage marked for

purpose of contradiction namely exhibit D.1 and D.2 as the case

may be, should be read out to him and he should be asked if the

witness had stated as mentioned in that exhibit. It is only when

the Investigating Officer answers in the affirmative that the

Exhibit can be deemed to have been properly proved. This is how

positive statements made by witness under Section 161 are

proved.

Sometimes the witnesses might not have mentioned an

important circumstance in the course of his evidence recorded

before the Court. Such material omissions also fall within the

category of contradictions and they too have to be proved. For

example in the case mentioned above if X had stated before the

Court that he was beaten by the accused with the axe not only on

the arm but also on the leg and if he did not mention it to the

Investigating Officer in his statement under Section 161, that the

accused beat him with the axe on the leg, it is a material omission

amounting to contradiction. In the first place the witness should

be asked whether he had mentioned to the Investigating Officer

who recorded his statement under Section 161 that he was

beaten by accused with the axe on the leg. If the witness admits

that he did not state so, no further proof of the omission is

necessary. If on the other hand he asserts that he had stated that

fact to the Investigation Officer, that should be so recorded in the

deposition of the witness. When the Investigating Officer is

examined in the Court later on he should be asked if the witness

has stated before him that he was beaten by the accused with the

axe on the leg. Naturally, the Investigating Officer would answer

in the negative. It is only then that the omission can be deemed

to have been proved. This is how case diary statements should

be used for contradicting the witnesses. Even when a prosecution

witness turns hostile the same procedure should be followed by

the prosecutor when the contradicts the witness with his earlier

statements under Section 161 Cr.P.C. But, the difference is that in

such a case the exhibit will be numbered in the “P” series,

instead of “D” series.

Sometimes, this procedure is not followed but the relevant

passage is marked in the case diary statement and an exhibit

number is assigned to it and the witness is merely questioned

“Did you state before the police as per Ex.D.1? “ His answer

that he did not state before the police as per Ex.D.1 is recorded.

Subsequently when the Investigation Officer is examined in the

Court, he is asked whether the witness had stated as per Ex. D.1

in the course of investigation and his answer in the affirmative is

recorded. If this method is adopted the Court will be put to the

necessity of referring once again to the original statements under

Section 161. If on the other hand the procedure mentioned above

is adopted the actual statement used for the purpose of

contradiction forms an integral part of the deposition of the

witness and there will not be any need for the Court to refer to

the original statement under Section 161 Cr.P.C. Hence, it is

desirable to follow only the earlier procedure mentioned above in

preference to the latter method.

The statement under Section 161 may be used as a piece of

substantive evidence only when the witness dies and the

statement can be brought within the purview of one of the several

clauses contained in Section 32 of the Evidence Act.

Confessions:

The substantive law as to confessions is contained in Section

24 to 30 of the Indian Evidence Act and the adjective law in Secs.

163, 164, 281(2) to (6) and 463 of the Criminal Procedure Code,

1973.

Section 164 of the Code of Criminal Procedure, 1973 lays

down that any Magistrate of the First Class or any Metropolitan

Magistrate empowered may record any statement or confession

made to him in the course of investigation under Chapter XIV of

the Code or at any time afterwards before the commencement of

the enquiry or trial. Such confessions shall be recorded and

signed in the manner provided in Sections 164 and 281(2) to (6)

of the Code of the Criminal Procedure.

But these Sections are to be read together and the

procedure which is laid down therein with minute particularity,

must be meticulously followed. It must be remembered that

Section 164 is not restricted to recording of confession. It has

reference to statements as well. The statements need not

amount to a confession. They may be partly confessional and

partly exculpatory. They may not be importance in view of the

different mode of recording thereof as would appear from sub-

section (2) of Section 164. If it is a confession, it should be

recorded and signed in the manner provided in Section 281(2) to

(6) and the direction in sub-section (3) should be strictly complied

with. The confession need not be of a person already accused, it

may be of a person who may ultimately be an accused. Sub-

section (3) has reference to the person and has not specifically

used the word “accused”. The act of recording confessions under

Section 164 is a very solemn act and in discharging his duties

under the said section, the Magistrate must take care to see that

the requirements of Section 164(3) are fully satisfied.

The Magistrate may usefully put the following questions

to the accused:

I. When were you taken into custody by the police and

where were you detained and how long till you were
produced before me?

II. Were you detained anywhere by the police before you

were taken formally into custody and if so, in what
circumstances?

III. When did the police first question you?

IV. How often were you questioned by the police?

 V. Were you induced, coerced, promised or advised by the
police to make a confessional statement ?

VI. Did the police or anyone else suggest or promise to you

that you would be taken as an approver?

VII. Is the confessional statement you offer to make induced

by any harsh treatment and if so, by whom?

VIII. How much time were you given for reflection after you
were removed from the police custody?

IX. Did anyone induce, promise or threaten you during this

period to make confessional statement?

X. Look on all sides. There is no police here. You need no

longer entertain any fear of the police.

XI. Remember you are before the Magistrate. (I am the

Magistrate). You are a free agent and no longer in custody
of the police. You are not bound to make confession. It is
open to you to make confession or not. You will not be
given back into the custody of the police.

XII. The confession which you may make may be used as

evidence against you at the trial. You may bear this well
in mind before you make your statement.

XIII. While making confessional statements do not proceed on

the erroneous impression that you will be taken as an
approver or that anyone has promised you to take you as
an approver?

XIV. What is it that prompts you to make a confessional

statement ?

XV. Now say what all you want to say.

 These questions and any others which may suggest

themselves to the Magistrate before he records the confession of

the accused should form part of the record made under Section

164 of the Code. The Magistrate should note that all these

questions should be put when the accused is produced from

judicial custody and before recording his confession. Even after

production from judicial custody, it is advisable that the accused,

if necessary, may be given one hour time for reflection allowing

him to remain in the Court before recording his confession.

When upon questioning the accused and from observation of

his demeanour, the Magistrate has reason to belief that the

accused has shaken off the effects of police custody, the

Magistrate should proceed to record his confession. The

Magistrate should also examine the body of the accused for

marks of violence if that is suspected or the accused makes

grievance of the same.

The Magistrate must avoid questions in the nature of cross-

examination. He should record the confessional statement so far

as it is possible in the words of the accused as made by him.

Procedure to record Statement U/S. 164 Cr.P.C:

1. The police should give a requisition to the Magistrate to

record the statement of the witnesses produced by him.

2. The police officer when the witnesses is not produced may

request the Magistrate to issue process, and the process
should be issued immediately and the police officer can
 collect the same to serve the witness and to produce him
before the Magistrate. The date for the production of
witnesses in accordance with the process so issued should
be fixed by the Magistrate.

3. If a Magistrate who has not been empowered under Section

164 of the Code, receives a requisition from a Police Officer
to record such statements, the Magistrate shall forthwith
return the requisition to the Police Officer with an
endorsement, that the Magistrate has not been empowered
to record the statement under Section 164 of the Code.

4. If the witnesses are produced when the requisition is

presented, the Magistrate shall forthwith arrange to have
those witnesses examined, suspending his other court work,
if necessary. There should be no avoidable delay in
recording statements of witness U/S. 164 of the Code.

5. When more than one witness is produced for recording

statements under section 164 of the Code, it is desirable
that the witnesses yet to be examined are segregated and
that the witness who has already been examined is not allow
access to those yet to be examined.

6. Such statements shall be recorded in open Court and during

Court hours, save for exceptional reasons to be recorded in
writing. Witnesses statement may be recorded in the
manner prescribed for recording evidence.

If evidence tendered by witness in witness box is credit

worthy and reliable, that evidence cannot be rejected merely

because a particular statement made by witness before Court

does not find place a statement recorded Under Section 161

Cr.P.C. (vide (2014) 4 SCC 747 (Two Judges Bench), Between:

Ashok Debbarama alias Achak Debbarama Vs State of

Tripura )

Further, statement U/Sec. 161 Cr.P.C. can be used only for

purpose of contradiction, where as statements U/Sec. 164 Cr.P.C.

can be used for both corroboration and contradiction. As defence

had no opportunity to Cross-examine witnesses whose statements

are recorded under Sec. 164, such statements cannot be treated

as substantive evidence. The said aspect was clearly discussed in

AIR 2013 SC 651 (Two Judges Bench), Between R.Shaji Vs

State of Kerala. In the said decision, the duty of Magistrate and

object behind recording Sec. 164 Cr.P.C. statement is also

considered and discussed. It was held that Magistrate has to

elicit all information which witness wishes to disclose and as a

witness who may be an illiterate, rustic villager may not be aware

of purpose for which he has been brought, and what he must

disclose in his statement, Magistrate should ask witness

explanatory questions and obtain all possible information in

relation to the case.

Object of recording statement of witness U/Sec.164 Cr.P.C. is

twofold. In the first place to deter witness from changing his stand by

denying contents of his previously recorded statement, and secondly, to

tide over immunity from prosecution by witness U/Sec. 164 Cr.P.C.

I conclude by quoting the words of Aristotle:

“ The only stable state is the one in which all men are equal before the law.”
 1

RELEVANCE OF STATEMENTS RECORDED UNDER
SECTION 161 AND 164 OF CR.P.C.,
Paper Submitted by Sri. V. Subba Reddy, M.A., M.L., IV Addl. Chief Metropolitan
Magistrate, Visakhapatnam.

A) Section 161 Cr.P.C.,

Clause 1:- Any police officer making an investigation under section 161 of Criminal

Procedure Code may examine any person supposed to be acquainted with the facts and

circumstances of the case.

Clause 2:- Such person shall bound to answer truly, all questions relating to such case put

to him by such officer, other than questions the answers to which would have a tendency to

expose him to a criminal charge or to a penalty of forfeiture.

Clause 3:- The police officer may reduce in to writing any statement made to him in the

course of an examination under this section; and if he does so, he shall make a separate and

true record of the statement of each such person whose statement he records.

A statement made to a police officer by any person in the course of investigation

recorded under section 161(3) Cr.P.C., cannot be treated as substantive piece of evidence

except when falling with in the provisions of section 27 of Evidence Act. It may be used only

for the purpose of contradicting a person examined in the course of investigation who later

figured as either a court witness or a defence witness. The statement of the accused to a

police officer is inadmissible in evidence as provided under section 162 of Cr.P.C.,

In Dandu Lakshmi Reddy Vs. State of Andhra Pradesh AIR 1999 SC 3255 the

Hon’ble Supreme Court held that unless the contradictory statements of the witness, recorded

under section 161 Cr.P.C., by the police are put to the witness while the evidence of the

witness was being recorded in the court . No adverse inference could be drawn against the

witness.

A police statement can be used at the time of trial of the offence being investigated for

the limited purpose of contradicting a person who is actually examined as a prosecution

witness. Such a statement cannot be used to corroborate the testimony of other witness on
 2

the ground. that the original maker of the statement has died and therefore could not be

examined by the prosecution as a witness at the trial.

In Sub-Section (1) of section 161 of Criminal procedure Code the word “any person”

includes not only a witness but even a person suspected or accused of an offence. A

statement made by the accused in the course of investigation is admissible only to the extent

of a discovery made in pursuance of the statement and not the entire statement.

Persons not examined by the police may be examined at the stage of trial:-

The law no doubt requires that, the report of the police officer submitted under section

173 Cr.P.C., should include the names of the persons who are acquainted with the

circumstances of the case and also requires that the statements recorded under section 161

(3) of Cr.P.C., of all persons whom the prosecution proposes to examine as its witnesses

should be furnished to the accused, there is nothing in the law that prevents the prosecution

from producing or the court from examining, as a witness in the case, a person whose name

has not been included in the report made or whose statement has not been furnished.

Despite section 173 (5) of Cr.P.C. a prosecutor has the right to examine a witness whose

statement has not been recorded, got power under section 311 Cr.P.C. to examine or re-

examine any person whose evidence appears to it to be essential for a just decision of the

case. The magistrate has no right to refuse to allow the prosecution to examine a witness on

the ground that his statement has not been recorded by the police. The evidence of a witnes

cannot be disbelieved on the ground that his statement has not been recorded by the police

during the course of investigation under section 161 (3) of Cr.P.C.,.

So far as omission of material facts in a statement recorded under section 161 (3) of

Cr.P.c., is concerned in the case of Matadin Vs. State of Uttar Pradesh AIR 1979 SC 1234

the Supreme Court observed that the statements given by the witnesses before the police are

meant to be brief statements and could not take the place of evidence in the court. Where the

omissions are vital, they merit consideration but mere small omissions will not justify finding

by court that the witnesses are liars.

 3

Section 162 (1) Cr.P.C., reads that no statement made by any person to a police officer

in the course of investigation, be signed by the person making it nor such statement be used

for any purpose except here in after provided at any enquiry or trial in respect of any offence

under investigation at the time when such statement was made.

Provided that when any witness is called for the prosecution in such enquiry or trial

whose statement has been reduced into writing as above mentioned, 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 Evidence

act.

Section 162(2) of Cr.P.C. says that nothing in this section shall be deemed to apply to

any statement falling under section 32 (1) of Evidence act or to affect the provisions under

section 27 of Evidence Act.

Explanation :- An Omission to state a fact or circumstance in the statement referred to in sub-

section (1) may amount to contradiction if the same appears to be significant and other wise

relevant having regard to the context in which such omission occurs and whether any

omission amounts to contradiction in a particular context shall be a question of fact.

SCOPE AND OBJECT OF SECTION 162 Cr.P.C.:-

This section deals with use of statements made to a police officer under section 161 (3)

Cr.P.C.,. Under section 145 of Evidence act a former statement made by a witness can be

used to contradict him or to impeach his credit. But this section imposes an absolute ban to

use of this statements for any purpose except for the purpose provided therein. The intention

behind the section is to protect the accused from being prejudicially affected by any dishonest

methods adopted by police officers, who may be inclined to mis-record the statements or

bring pressure or influence on the witnesses. That object being achieved under sub-section

(1), the proviso enables the accused and in some cases even by the prosecution to bring out

the contradiction between the statements made by the witnesses before the court and before

the investigation officer.

 4

USE OF THE STATEMENT BEFORE THE POLICE:-

Section 162 Cr.P.C., was conceived in an attempt to find a happy via media, namely,

while it enacts an absolute bar against the statement being used for any purpose what so

ever, it enables the accused to rely upon it for the limited purpose of contradicting a witness in

the manner provided by section 145 of Evidence act, by drawing his attention to the parts of

the statement intended for contradiction. It cannot be used for corroboration of a prosecution

or defence witness or even court witness. Under no circumstances can section 161 Cr.P.C.,

statement be used as a substantive evidence. The prohibition under this section extends to all

statements namely confessional or other wise. Section 162 of Sub-section (2) of Cr.P.C.

excludes from its operation a statement falling with in the provisions of section 32 (1) of

Evidence Act and statement falling under the provisions of section 27 of the Evidence Act.

STATEMENT MUST BE DULY PROVED:-

Under section 145 of Evidence act, proof of the statement follows the putting of the

statement to the witness. It is curious that section 162 of the code says that a previous

statement to the police can be used to contradict a witness if duly proved and at the same

time refers to the mode of contradiction under section 145 of Evidence act. The only way in

which the two sections can perhaps be reconciled is by taking contradictions under the both

sections to mean, not contradiction in the course of examination by way of putting the

statement of the witnesses as against his evidence in the court, but subsequent use by way of

contradiction when assessing the value of his evidence.

Section 145 of Evidence act which has to be read with this section quite clearly indicates

that the attention of a witness is to be called to the previous statement before the writing can

be proved. If the witness admits the previous statement or explains any discrepancy or

contradiction, it obviously makes it unnecessary for the statement thereafter to be proved. On

the other hand, if the statement, still requires to be proved, that can be done later by calling

the person before whom the statement was made. The word “if duly proved” in the proviso

clearly shows that an alleged record of statement to the police cannot be admitted in evidence

straight away and that the officer before whom the statement is said to have been made

should ordinarily be examined as to any alleged statement that is relied upon by the accused
 5

for the purpose of contradiction the witness. In other words, there is no presumption as to the

genuineness of the statements of the witnesses entered in the police diary and unless they

are duly proved, they cannot be used to contradict the evidence given in the court.

The correct procedure to contradict a witness is to draw his attention to the relevant

part of the contradictory statement which he made to the police officer and to question him

when he made that statement. If he replies in the affirmative that admission establishes the

contradiction. If however the witness denies having made such statement before the police,

the particular portion in his statement before the police should be provisionally marked for

identification and when the investigating officer comes into the witness box he should be

questioned as to whether that particular statement had been made by the witness to him.

Then the Investigation Officer shall be allowed to refresh his memory by having a look at the

statement and then he would answer in the affirmative. This answer would prove the

statement, which will then be exhibited in the case, and may thereafter be relied upon by the

accused as contradiction.

OMISSIONS WHETHER AMOUNT TO CONTRADICTIONS :-

What is permissible under section 162 Cr.P.C., is that a portion of the statement made

before the police by a witness may be used for contradicting a witness. But if there is an

omission to state a certain fact before the police officer, there is strictly speaking no statement

before him which may be used to confront the witness. Even section 145 of Evidence Act

provides that the relevant portion of the statement should be brought to the notice of the

witness. Hence an omission cannot be used to contradict a witness.

Decided cases by various High Courts may be classified under three heads:

I) Omissions are not contradictions

ii) Usually an omission is not a contradiction but the omission to state an important fact is a

contradiction or at any rate it is a contradiction by substance.

Iii) Another line of cases have taken the view that an omission can never be contractions.
 6

In Ram Bali Vs. State AIR 1952 Allahabad High Court 289. “Justice Desai “ held

that if a witness deposes in court that a certain fact existed but had stated under section 162

of Cr.P.C., either that fact had not existed or the irreconcilable fact existed. It is a case of

conflict between the deposition in the court and the statement under section 162 Cr.P.C., and

the later can be used to contradict the former. But if he had not stated under section 162

Cr.P.C., anything about the fact, there is no conflict and the statement cannot be used to

contradict him.

It is true all omissions are not amounting to contradictions and the statements given

before the police cannot be used in evidence at all for any purpose except for the purpose of

bringing out a contradiction. There are certain omissions which amount to contradictions.

Those are omissions relating to facts which are expected to be included in the statement

before the police by a person who is giving a narrative of what he saw on the ground that they

relate to important features of the incident about which the deposition is made. So failure to

assert a fact when it would have been natural to assert it is an omission and therefore amount

to contradiction.

The entire law on the subject was discussed by the Supreme Court in Tahsildar Sing

Vs. State of Uttar Pradesh AIR 1959 SC 1012 and conflict of views was set at rest

The Supreme Court made the following propositions in the Tahsildar Sing Vs. State of

Uttar Pradesh:

I) A statement in writing made by a witness before a police officer in the course of

investigation can be used only to contradict his statement in the witness box and for no other

purpose.

ii) Statements not reduced into writing by the police officer cannot be used for

contradiction.

iii) Though a particular statement is not expressly recorded, the statement can be used for

contradiction not because it is an omission strictly so called but because it is deemed to form

part of the recorded statement.

 7

iv) Such a fiction is permissible by construction only in the following three cases.

• When a recital is necessarily implied from the recital or recitals found in the statement.

Illustration:- In a recorded statement before the police, the witness states that he saw

A stabbing B at a particular point of time, but in the witness box he says that he saw A

and C stabbing B at the same point of time; in the statement before the police, the

word “only” can be implied i.e., the witness saw A only stabbing B.

• A negative aspect of a positive recital in a statement.

Illustration:- In the recorded statement before the police the witness says that a dark

man stabbed B but in witness box he stated that a fair man stabbed B; the earlier

statement must be deemed to contain the recital not only that the culprit was of a dark

complexioned man but also that he was not of fair complexion.

• When the statement before the police and that before the court cannot stand together.

Illustration:- The witness says in the recorded statement before the police that A after

stabbing B ran away by a northern lane, but in the court he says that immediately after

stabbing he ran away towards southern lane; as he could not have runaway

immediately after the stabbing at the same point of time towards the northern lane as

well as towards the southern lane, if one statement is true, the other statement must

necessarily be false.

B) Section 164 Cr.P.C.,

Clause (1) of Cr.P.C., reads that any Metropolitan Magistrate or Judicial Magistrate

may whether or not he has jurisdiction in the case record any confession or statement made

to him in the course of an investigation under this chapter or at any time after investigation

before the commencement of inquiry or trial.

Clause (2) of Cr.P.C., says that the Magistrate shall before recording any such

confession explain to the person making it that he is not bound to make a confession and

that, if he does so, it may be used as evidence against him and the Magistrate shall not

record such confession unless, upon questioning the person making it that he has reason to

believe that it is being made voluntarily.

 8

Clause (3) of Cr.P.C., if at any time before the confession is recorded, the person

appearing before the Magistrate states that he is not willing to make the confession, the

Magistrate shall not authorise the detention of such person in police custody.

Clause (4) of Cr.P.C., any confession shall be recorded in the manner provided in

section 281 Cr.P.C., and shall be signed by the person making the confession and the

Magistrate shall make a memorandum at the foot of such record to the following effect;

“ I have explained to (name) that he is not bound to make a confession

and that, if he does so, any confession he may make may be used as

evidence against him and I believe that this confession was voluntarily made.

It was taken in my presence and hearing, and was read over to the person

making it and admitted by him to be correct and it contains a full and true

account of the statement made by him.

Signed AB Magistrate

Clause (5) of Cr.P.C., reads that any statement made under sub-section (1)

shall be recorded in such manner as herein after provided for the recording of

evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the

case; and the Magistrate shall have power to administer oath to the person whose

statement is to be recorded.

Clause (6) of Cr.P.C., reads that the Magistrate recording the confession or a

statement under this section shall forward it to the Magistrate by whom the case is to

be inquired into or tried.

• SCOPE AND OBJECT OF THE SECTION:-

This section should be read together with sub-sections 24, 25, 26 and section 29 of the

Evidence Act. By so reading we will get the following results:-

1. That a confession shall not be made to a police officer

2. That if a person in police custody desires to make a confession, he must do so in the

presence of Magistrate.

3. That the Magistrate shall not record it unless it is voluntary.

 9

4. That when the Magistrate records it, he shall record it in the manner provided in
section 164 Cr.P.C.,.

5. That when so recorded the confession will become relevant and admissible in
evidence.

The object of recording statements of witnesses under this section is two-fold.

1. To deter witnesses from changing their stories subsequently and to gather the

immunity from prosecution with regard to the information given by witnesses under

section 162 Cr.P.C.,.

Statements under this section can only be used for the purpose of corroboration or

contradiction and cannot be used as substantive evidence. There is vital distinction between

recording of statements of accused persons and the recording of statements by witnesses.

The same precautions which are prescribed for recording of the confession of the accused

persons need not be observed while recording the statements of the witnesses.

A statement under this section may be recorded not only at the instance of the police,

but also at the instance of the accused or the aggrieved person or at the request of the

witness himself. However the statement of a witness cannot be recorded under section 164

Cr.P.C., when the witness is not sponsored by the prosecution.

• EVIDENTIARY VALUE OF STATEMENTS OF WITNESSES:-

The statement of a witness under section is not substantive evidence. These

statements can be used either for corroboration of the testimony of a witness or in his cross-

examination for contradicting him under section 145 of the Evidence Act. As soon as, the

statements are recorded, they should be forwarded to a Magistrate by whom the case is to be

tried, then the accused either can inspect or take copies of documents.

• PROSECUTION FOR FALSE EVIDENCE:-

Statements made under the section can constitute the basis of a complaint under

section 340 Cr.P.C., when the deponents have resiled there from and gave contradictory

statements. The witness can be liable for complaint for perjury.

 10

• PROOF OF CONFESSIONS:-

In Kasmira Singh Vs State of Madya Pradesh AIR 1952 SC 159, The Hon’ble Supreme

Court held that the confession can be admitted in evidence without the Magistrate being

examined as a witness if he has given necessary certificate on the confession.

• Extra Judicial Confession and Retracted Confessions – Value and Use of

Confessions:-

Normally speaking it is not safe as a matter of prudence, if not of law, to base a

conviction for murder on an extra-Judicial confession. But it is as a matter of caution that the

court requires some material corroboration which connects the accused with the commission

of crime. But where the extra-judicial confession is true, reliable and acceptable, it can

certainly be made the basis for conviction.

In Arul Raja Vs. State of Tamil Nadu 2010(6) SCJ 384, the Hon’ble Supreme Court held

that, the evidentiary value of the extra judicial confession must be judged in the facts and

circumstances of each individual case.

• RETRACTED CONFESSION:-

There is no absolute rule of law that the retracted confession cannot be accepted as

evidence of the guilt of an accused without corroborative evidence. When the court is satisfied

that the confession is voluntary and finds it to be true, it becomes a legal basis for conviction

without corroboration. It is only a rule of prudence to seek for corroboration. It is not even an

inflexible rule of practice that is no circumstance a conviction on the basis of confession can

be made without corroboration.

In Muthuswamy Vs. State AIR 1954 SC 4, the Hon’ble Supreme Court held that, in the

case of retracted confession it is not possible to lay down any hard and fast rule regarding the

necessity of corroboration. But apart from any general rule of prudence, where suspicion is

caste on the genuineness of the confession by the circumstances, it is sufficient to require

corroboration for basing conviction. In law it is open to the court to convict an accused on his

confession itself though he has retracted the confession at a later stage.

11
Paper Submitted For Work shop- i

INVESTIGATION PROCESS - ROLE OF COURTS

Paper presented by
K. Murali mohan,
Principale Junior Civil Judge,
Bhimunipatnam.

Investigation of a cognizable offence is the primary duty of a Police

Officer.

Chapter XII of Criminal Procedure Code indicates the provisions relating to

“Information the Police and their power to Investigate”. The criminal law is set
into motion when a cognizable offence is reported to Police U/Sec. 154 Cr.P.C.,
and police action completed when the police report (charge sheet or final report)
has been submitted to the Court U/Sec. 173 Cr.P.C., after completion of
investigation. There after adjudication process starts in Court of Law.

“Investigation” defined in Section 2 (h) and the procedure has been described in
Section 157 Cr.P.C.

' Investigation ' is the process of inquiring, bring about and getting vital information,
discovery of facts and circumstances to establish the truth. The key underlying
principle of investigation of a crime is a concept that is known as ' Locard's Exchange
Principle '. This principle is summed up by stating '' Every contact leaves a trace ''.
For investigation to commence, registration of a FIR is not a sine qua non . ( Emperor
Vs. Khwaja Nazir, and Apren Joseph @ Current Kunjukunju and Ors Vs. State of Kerala,
1973 Crl.L.J 85 ). Human dignity is a dear value of our Constitution. But if a police
officer transgresses the circumscribed limits and improperly and illegally exercises his
investigatory powers in breach of any statutory provision causing serious prejudice to
the personal liberty and also property of a citizen, then the Court, on being approached
by the person aggrieved for the redress of any grievance has to consider the nature and
extent of the breach and pass appropriate orders as may be called for without leaving
the citizens to the mercy of police echelons since human dignity is a dear value of our
Constitution. ( State Of Haryana And Ors vs Ch. Bhajan Lal And Ors 1992 AIR 604 ).
The adjudicatory function of the judiciary . On a cognizance of the offence being taken
by the Court the police function of investigation comes to an end subject to the
provision contained in Section 173 (8) there commences the adjudicatory function of the
judiciary
Process of Investigation :- To understand the process of investigation succinctly, I
intend to quote the an important judgment of the Hon'ble Supreme Court in
H.N.Rishbud Vs. State of Delhi, AIR 1955 SC 196 wherein the stages of
investigation Under the Code of Criminal Procedure,1973 is clearly explained.
Investigation consists generally of the following steps:
(1) Proceeding to the spot,
(2) Ascertainment of the facts and circumstances of the case,
(3) Discovery and arrest of the suspected offender,
(4) Collection of evidence relating to the commission of the offence which may consist
of (a) the examination of various persons (including the accused) and the reduction of
their statements into writing, if the officer thinks fit, (b) the search of places of
seizure of things considered necessary for the investigation and to be produced at the
trial, and
(5) Formation of the opinion as to whether on the material collected there is a case to
place the accused before a Magistrate for trial and if so taking the necessary steps for
the same by the filing of a charge- sheet under section 173 of Cr.P.C.
Stages of Investigation
Duties of Officer-in-charge of Police Station :
First Information Report
I) The officer-in-charge of the police station shall send a report of information
about cognizable offence to the Judicial Magistrate. The report must be
submitted through superior officer of police if the State Government so
directs (Sec. 157 and 158).

ii) The object of sending copy of FIR to Magistrate is to keep the Magistrate
informed of the investigation of cognizable offence so as to enable him to
give appropriate direction if necessary under Sec. 159. Where the FIR was
actually recorded without delay and the investigation started on the basis of
that FIR and there is no other infirmity, delay in receipt of report by
Magistrate does not make the investigation tainted. (Pala Singh V. State
of Punjab – AIR 1972 SC 2679).

iii) Mere delay in sending the report to the Magistrate would not vitiate the trial
in the absence of prejudice caused to the accused by such delay (Sarwan
V. State of Punjab – AIR 1976 SC 2304).

iv) The extraordinary delay in sending the FIR is a circumstance which provides
a legitimate basis for suspecting that the first information report was
recorded much later than the stated date and hour affording sufficient time
to the prosecution to introduce improvements and embellishments and set
up a distorted version of the occurrence. (Ishwar Singh V. State of U.P. -
1976 Crl.L.J. 1883 SC; AIR 1976 SC 2433).

'Case Diaries' under the process of investigation: Every investigating officer is

required by law to keep a record of the proceedings of the investigation in a diary in
narrative form that should be made with promptness in sufficient details mentioning all
significant facts on careful chronological order and with complete objectivity which may
have a bearing on the result of the case.
It is interesting to see that the Hon'ble Apex court observed in OmPrakash v. State,
1979 Crl.L.J 141, that "the case diary must be written at the place of investigation and
not at the end of the day. See. 1980 Cr LJ N.O.C. 67 (Del.); Jagannath v. State of
Himachal Pradesh, 1982, Cr LJ 2289 (H.P.)
Collection of Evidence:- The collection of evidence involves several steps and methods
that comprise the crucial task of investigation process. The object behind is this task
such that is to collect all available forms of evidence, physical, documentary and
circumstantial, that are necessary for a comprehensive presentation of the same with
regard to successful and effective prosecution of the case.

Examination of Witnesses:- The examination of witnesses is only one part of the

collection of evidence, included within the meaning of the word "investigation". Wadha J.
Said, "A criminal case is built on the edifice of evidence, evidence that is
inadmissible in law. Fir that,witnesses are required whether it is direct evidence or
circumstantial evidence." See. Swaran Singh v. State of Punjab, (2000)5 SCC 68 at
678. The procedure for examination of witnesses by the police is provided in ss. 161 and
162 Cr.P.C. It provides for the recording of statements of all those persons who are
acquainted with the facts and circumstances of the case, directly or indirectly, and the
use to which they may subsequently be put in the trial. vi. (b). Magistrate is kept in the
picture at all stages of the police investigation:- In this case of State of Haryana's
(1992 AIR 604), it was observed that a noticeable feature of the scheme under Chapter
XIV of the Code is that a Magistrate is kept in the picture at all stages of the police
investigation but he is not authorised to interfere with the actual investigation or to
direct the police how that investigation is to beconducted.See. Pakala Naray ana Swami,
(1939) 66 IA 66: 41 Born LR 428: 18 Pat 234;
Sankaralinga Kone, (1990) 23 Mad .Section 161 (3) Cr.P.C. prohibits the making of precis
of a statement of a witness or merely recording that one witness corroborates another.
The statement, if recorded, must be recorded as made and should not be in indirect
form of speech. The writing should be a record in the first person.
As was pointed out in Bommabayina Ramaiah v. State of A.P., AIR 1960 AP
160:1960 Cr LJ 311 , it is essential to note that each statement recorded could be
read by itself without necessarily looking into the others. This is made to minimise the
chances of contradiction and also avoid any allegation against the IO for having even
inadvertently distorted the statement during the process of translating the statement
made in a language other than in which it is recorded.
vii. Search and Seizure:--
Searches are also proceedings for the collection of evidence and therefore part of
investigation u/s. 2(h). Section 165, Cr.P.C. authorises a general search on the chance
that something incriminatory might be found in connection with an offence. The
procedures of the search are also stated ins. 100 Cr.P.C. See also. State of Punjab vs.
Balbir Singh, 1994 SCC (3) 299 regarding serach and seizure. The search should be made
in their presence, and the list of things seized in the search and of the places in which
they were respectively found, familiarly known as the panchanama , should be signed by
them. See. Section 100(5), Cr.P.C. It has also been held that where conditions under sub-
ss. (1) and (3) of s. 165 have not been strictly complied with, it may be only an
irregularity and entry in the premises for making search in discharge of official duty
cannot be turned into a criminal trespass only on account of such a defect. See. Radha
Kishan v. State, AIR 1963 SC 822: (1963) I Cr LJ 809. But even if the search be illegal,
it does not justify any obstruction or other criminal acts against the person conducting
the search, after search and seizure are complete. See. Shyam La/, AIR 1972 SC 886:
1972 Cr LJ 638. It is settled law that once it is found that the evidence of the recovery
of articles is reliable, "the illegality of the search however does not make the evidence
of seizure inadmissible."See. AIR 1965 Orissa 136-37. SeeArvind Verma, 1997.
According to s. 165(1) Cr.P.C., the 1O can only conduct search within the limits of its
thana, but in certain cases a
Test Identification Parade :- Evidence in regard to test identification
parades (TIPs) are held in matters of person as well as property. The basic procedural
norms for conducting TIPs in either case are essentially the same. The method of
conducting tip is enumerated in rule 34 of the Criminal Rules of Practice and Circular
Orders, 1990. The precaution that need to be taken by the police is to prevent the
identifying witness(es) from seeing the recovered property or the suspects,as the case
may be, before the test identification. The TIP has to be held without much delay and
before the accused goes on bail for once on bail, there is the chance of the accused not
only being seen by the witnesses but they could also be influenced by the accused at
large. In case the above precautions are not taken that may greatly hamper the value of
the evidence in identification. The police should ensure that all the procedural norms are
strictly followed to ensure a fair conduct of the TIP and in that regard, the police
manual also prescribes that the panch witnesses need to satisfy themselves.
Arrest:
The arrest and detention of a person for the purpose of investigation of an offence
forms an integral part of the process of investigation. Sections 41 and 154 of the Code
deal with the powers of arrest by the police. The powers of the police to arrest a person
without an order from a Magistrate and without a warrant as provided in s. 41(1) is
confined to such persons who are accused or concerned with the offences that are
enumerated under nine categories of cases (a-i) or are suspects thereof. The
phraseology of this section entails on one hand a cognate character in consonant with s.
2(c) of the Code wherein the expression "cognizable offence" means an offence for
which a police officer may arrest without warrant. Thus proceeding from s. 154, vide s.
156 of the Code, the derivative impression in correspondence with s. 41 is that the
arrest of the accused is mandatory as part of the process of investigation.
See. Arnesh Kumar Vs. State of Bihar, Rajesh Sharama Vs. UP, Judgment
dated July 27,2017, and Recent case in Maharashtra-based NGO Nyayadhar's case
(2017). Section 41 Cr.P.C. is a depository of general powers of the police officer to
arrest but this power is subject to certain other provisions contained in the Code as well
as in the special statute to which the Code is made applicable. See. AvintiSh Madhukar
Mukhedkar v. State of MahartiShtra, 1983 Cr LJ 1833 (Born.). See. Arnesh Kumar Vs.
State of Bihar, (2014)8 SCC 273. Section 41 (l)(d) will have to be read in conjunction
with the provisions contained in ss. 155 and 156. Ass. 155(2) prohibits a police officer
from investigating a non-cognizable offence without an order of the Magistrate, then in
respect of such an offence a police official cannot exercise the powers contained in s. 41
(I) (d). But in case of a person committing or accused of committing a non-cognizable
offence in the presence of a police officer does not reveal its name and residence or
does so that is believed to be false, the concerned person may then be taken into
custody in order that the same may be ascertained. See. Section 42(1), Cr.P.C. Even in
cases u/s. 34 Indian Police Act, 1861, the police shall exercise their powers of arrest
without warrant. It is not necessary that arrest is effected only on the occasion of the
commission of an offence. The police have also been armed with extensive powers to
prevent commission of cognizable offences (ss. 149-151), i.e. offences for which they
could arrest without a warrant. If the person so concerned is believed to have "a design
to commit any cognizable offence" and "cannot be otherwise prevented," the police
officer can forthwith arrest "the person so designing" (s. 151). See. ]agdish Chander
Bhatia v. State,1983 Cr LJ NOC 235 (Del.) Even in cases of bad livelihood, an officer
may arrest any person belonging to one or more categories of persons as specified ins.
109 or s. 110 Cr.P.C. Govind Prasad v. W.B., 1975 Cr LJ 1249 (Cal.). It has been held in
Virna/ Kumar Sharma v. State ofU.P. [1995 Cr LJ 2336 (All.)] that a person who has
been arrested must be informed of the grounds of arrest with greatest despatch as
soon as possible however, it may nor be immediately. The Hon'ble Full Bench of the
Allahabad High Court [vikram v. State, 1996 Cr LJ 1536 (All.)] held that the arrested
person must be informed of the bare necessary facrs leading to his arrest including the
facts that in respect of whom and by whom the offence is said to be committed, date,
rime and place of occurrence of the offence and if this is contested by the accused of
being nor informed, it is the burden of the prosecution
to establish that the requirements of section 50(1) Cr.P.C. and Art. 22(1)of the
Constitution have been fully complied with Section 51 of the Code prescribes for passing
a receipt in respect of articles seized, other than necessary wearing apparel, from the
search of person arrested under a warrant which does not provide for the taking of bail,
or under a warrant which provides for the taking of bail but the person arrested cannot
furnish bail, as a precautionary measure for accounting for the articles. Where the
accused is not given the grounds of such arrest as per section 50 of the Code, the
search under such conditions becomes illegal. Section 54 of the Cr.P.C confers the right
on an arrested person to have his medical examination done.
It is the duty of the Magistrate to inform the arrested person about his right
to get himself medically checked and direct the examination of the body of such person
by a registered medical practitioner, when an arrested person alleges, either when he is
produced before a Magistrate or at any time during the period of his detention in
custody that the examination of his body will afford evidence which will disprove the
commission by him of any offence or which will establish the commission by any other
person of any offence against his body. Section 56, 57 and 76 of Cr.P.C . has the
constitutional sanction vide Art. 22(2) of the Constitution of India which directs that
the person arrested and detained in custody shall be produced before the nearest
Magistrate within a period of 24 hours of such arrest excluding the time necessary for
journey from the place of arrest to the Court of the Magistrate. Section 56 provides
that a police officer shall on making an arrest without warrant produce the concerned
before a Magistrate having jurisdiction in the case or before the OIC of the thana.
Section 57 echoes clause 2 of Art. 22, mentioned above, but it is to be read with s. 167,
as stated in rule 172(a) of the Orissa Police Manual that requires that an accused shall
be sent forthwith to the nearest magistrate, together with the copy of the entries in
the case diary, within the stipulated time period. The counterpart of s. 57, s. 76
becomes applicable in case of a person arrested under a warrant. Section 57 and 76
empowers the police officer to keep the arrested person in its custody for a period not
exceeding twenty-four hours for investigation in relation to the case for which such
arrest has taken place. In D.K Basu v. State of West Bengal, (1997) 1 SCC 416, the
Apex Court lamented the growing incidence of torture and deaths in police custody and
felt necessary as it laid down that in addition to the statutory and constitutional
requirements, it would be useful and effective to structure an appropriate mechanism
for contemporaneous recording and notification of all cases of arrest and detention to
bring in transparency and accountability. To that effect, the court issued
1111commandments "to be followed in all cases of arrest or detention till legal provisions
are made in that behalf as preventive measures."
Bail:
The police has on hand another prescriptive process that follows the arrest of an
accused or suspect with or without a warrant and that is its decision to either forward
the arrestee to the Court or take bail from such person. The Code of Criminal Procedure
lays down the provisions as regards bail for which purpose they are broadly classed into
two categories in consonance with the classification of the offences, bailable and non-
bailable. The police powers to admit to bail is contained in ss. 436, 437, 438, and 441 of
the Code. The basic rule is to release him on bail unless there are circumstances
suggesting the possibility of his fleeing from justice or thwarting the course of justice.
See. State of Rajasthan v. Balchand, AIR 1977 SC 2447: 1978 Cr LJ 195; Gudikanti
Narasimhulu v. Public Prosecutor, A.P., AIR 1978 SC 429: 1978 Cr LJ 502. Another area
is concerned, Section 441 Cr.P.C. It contemplates furnishing of a personal bond by the
accused person and a bond by one or more sufficient sureties conditioned with the time
and place for his appearance. The critical aspect about this section is the discretionary
power of the police officer to fix the amount of the bond for such sum of money that it
thinks sufficient that shall be executed by such person to be released on bail. It has
been held that an accused person is entitled as of right to bail, provided the necessary
conditions prescribed by law are fulfilled and under this section that contemplates the
execution of a bond with sureties, the amount of the bond is not to be excessive and is
to be fixed with due regard to the circumstances of each case.
Remand:
When any investigation cannot be completed within 24 hours of the arrest of an accused
vide s. 57 of the Code and that there are reasonable grounds for believing that the
accusation or information is well-founded and the station officer is further in a position
to show satisfactory grounds for the application for a special order for the detention of
the accused in police custody u/s. 167 Cr.P.C.,( for detailed discussion on 'police
custody', refer to 'CBI Vs. Anupama Kulkarni, 1992 SCR (3) 158 ) the SHO of the police
station or the investigation officer not below the rank of sub-inspector shall forward
the accused to the nearest Judicial Magistrate (whether or not he has the jurisdiction
to try the case), together with a copy of the entries in the case diary relating to the
case, and report the matter to the
Superintendent, but in no case shall the accused remain in police custody for a longer
time than is reasonable without the authority of a Magistrate. See. Article 22(2),
Constitution ofindia; Section 167(1), Cr.P.C. Where a Judicial Magistrate is not
available , it is the Executive Magistrate that does the needful with the procedures
remaining the same except that the detention will be for a term not exceeding seven
days and any further extension of the remand will be done by the competent Magistrate
with the Executive Magistrate transmitting all the records of the case to the nearest
Judicial Magistrate. Section 167(2A), Cr.P.C . Where the accused surrendered in the
Court and the prosecution applied for police custody, but the prayer could not be
granted till the expiry of first fifteen days, it was held that the Magistrate rightly
refused police custody (Bhajan Lal v. State of U.P., 1996 Cr LJ 460 (All.). Where
members of the army or the para-military come in aid of civil authorities for
maintenance of law and order, they have absolutely no authority or power of
investigation or interrogation. The Court has held that the remand of accused to the
army custody on prayer of IO is highly improper, illegal and ultra vires of the
Constitution. Shri joyanta Borbora v. State of Assam, 1992 Cr LJ 2147 (Gau.) In Khatri
v. State of Bihar, popularly known as the "Bhagalpur Blinding case," [(1981) 1 SCC 632:
AIR 1981 SC 928: 1981 Cr LJ 470], that the Magistrate or Sessions Judge before whom
the accused appears is under an obligation to inform the accused that if he is unable to
engage a lawyer on account of poverty, he is entitled to obtain free legal service at the
cost of the State. The Supreme Court has given necessary directions to
Magistrate,Sessions Judges and State Government with guidelines to be followed in this
regard. The police have no right to refuse to allow the legal adviser of an accused
person, remanded to their custody, to interview him, or his relatives to supply him with
food and clothing, as long as they satisfyhemselves that no objectionable articles are
supplied.
In Khatri v. State of Bihar, Sandip Kumar Dey and Hussainara Khatoon cases, it
was held that the Magistrates need to see that the accused is produced before the
court when the remand order is passed and cautioned the Magistrates that in granting
remand they should not act mechanically.
Interrogation:
Interrogation is an engagement process that represents one of the first points of
contact between the police and the 'publics' related to the case, as s. 161 of the Code
do not distinguish those who are interrogated as complainant, victim, accused,
accomplices or witnesses. See also. Criminal Law (Amendment) Act,2013 .Section 162,
Cr.P.C. does not affect the provisions of s. 27 of the Indian Evidence Act, 1872 and
therefore information leading to the discovery of a fact made to the police and
admissible ufs. 27 of the Evidence Act, is not rendered inadmissible u/s. 162 and do not
offend against Art. 14 of the Constitution oflndia. Ramakrishna v. State of Bombay,
1955 Cr LJ 196 (SC). The process of interrogation comprises of the act of an impeller-
custodian against a person in its custody by arrest, police remand, or even where the
custody per se is unauthorised. The police habit of charging the people, then beat up
with standardised crimes even got the name of mock crime. The larger problem is that
the victims of the commonly reported incidents of police violence are generally the poor
alleged in case of petty crimes.
Investigation: its subsequent adjudication between police and the Magistrate. 1. The
executive function of the police department. Investigation of an offence is the field
exclusively the reserved for the executive through the police department, the
superintendence over which vests in the State Government. The executive which is
charged with a duty to keep vigilance over law and order situation is obliged to prevent
crime and if an offence is alleged to have been committed it is its bounden duty to
investigate into the offence and bring the offender to book. Once it investigates and
finds an offence having been committed it is its duty to collect evidence for the purpose
of proving the offence. Once that is completed and the investigating officer submits
report to the Court requesting the Court to take congizance of the offence under
section 190 of the Code its duty comes to an end subject to the provision contained in
Section 173 (8). xiv. Whether a magistrate could direct the police to submit a charge-
sheet, when the police, after investigation into a cognizable offence, had submitted a
report of the action taken under s. 169, Cr.P.C., that there was no case made out for
sending up the accused for trial.
''Magisterial vigil does not terminate on the filing of the police report on the
conclusion of the investigation and the court is not bound to accept the results of
an investigation conducted by the police. In the case the police concludes that no case
is made out against the accused, the Magistrate has to issue a notice to the
informed/victim and hear him out. After hearing the informant, the court can,
notwithstanding the closure report, choose to proceed with the matter, as a case based
on police report or even a prior
complaint.''
There was no such power conferred on a magistrate either expressly or by
implication. See. Abhinandan Jha & Ors vs Dinesh Mishra, 1967 SCR (3) 668. 2. When a
cognizable offence is reported to the police they may after investigation take action
under s. 169 or s.170 Cr.P.C. If the- police :think there is not sufficient evidence against
the accused, they may, under s. 169 release the accused from custody on his executing a
bond to appear before a competent magistrate if and when so required; or, if the police
think there is sufficient evidence, they may, under s.170, forward the accused under
custody to a competent magistrate or release the accused on bail in cases where the
offences are bailable. In either case the police should submit a report of the action
taken, under s.173, to the competent magistrate who- considers it judicially under s. 190
and takes the following action : (1) If the report is a charge-sheet under s.170 it is open
to the magistrate to agree with it and take cognizance of the offence under s.190 (1)
(b); or to take the view that the facts disclosed do not make out an offence and decline
to take cognizance. But he cannot call upon the police to submit a report that the
accused need not be proceeded against on the ground that there was not sufficient
evidence.
If the report is of the action taken under s.169, then the magistrate may agree
with the report and close the proceeding. If he disagrees with the report he can give
directions to the police under s.156 (3) to make a further investigation. If the police,
after further investigation submit a charge-sheet, the magistrate may follow the
procedure where the charge-sheet under s.170 is filed; but if the police are still of the
opinion that there was not sufficient evidence against the accused, the magistrate may
agree or disagree with it. Where he agrees, the case againstthe accused is closed.
Where the magistrate disagrees and forms the opinion that the facts set out in
the report constitute an offence, he .can take cognizance under s.190 (1) (c). The
provision in s.169 enabling the Police to take a bond for the appearance of the accused
before a magistrate if so required, is to meet such a contingency of the magistrate
taking cognizance of the offence notwithstanding the contrary opinion of the police. The
power under s.190 (1) (c) was intended to Secure that offences may not go unpunished
and justice may be invoked even where persons individually aggrieved are unwilling or
unable to prosecute, or he police either wantonly or through a bona, fide error do not
submit a charge-sheet. But the magistrate cannot direct the Police to submit a charge-
sheet, because the submission of the report depends entirely upon the opinion formed
by the police and not on the opinion of the magistrate. The magistrate, if he disagrees
with the report of the police, can. himself take cognizance of the offence under s.190
(1) (c) or (c), but, be cannot compel the police to form a particular opinion on
investigation and submit a report according to such opinion. In Abhinandan Jha's case,
State of Gujarat v. Shah Lakhamshi, A.I.R. 1966 Gujarat 283 (F.B.); Venkatusubha v.
Anjanayulu, A.I.R. 1932 Mad. 673; Abdul Rahim Vs. Abdul Muktadin, A.I.R. 1953 Assam
112 ;Amar Premanand Vs. State, A.I.R. 1960 M.P. 12 and A.K.Roy vs. State of West
Bengal. A.I.R. 1962 Cal. 135 (F.B.) approved. State Vs. Muralidhar Govardhan, A.I.R. 1960
Bom. 240 and Ram Wandan v. State, A.I.R. 1966 Pat. 438, disapproved.
Investigation by Police-Further investigation in case in which one investigating
officer had submitted a final report under Section 172 (2) of Criminal Procedure
Code, 1973, but on which the Court had not passed any order-Section156 enables the
officer in-charge of a Police Station to investigate without the order of a Magistrate
into a cognizable case committed within the area of the police station. Section 173 (8)
enables an officer-in-charge of the Police Station to undertake for their investigation in
a case where he has already submitted a report under sub-section (2) of Section 173
and if in course of such further investigation he collects additional oral or documentary
evidence, he has to forward the same in the prescribed form to the Magistrate. See.
State Of Bihar And Anr vs J.A.C. Saldanha And Ors, 1980 AIR 326.
Magistrate Can’t Order Further Investigation At Post Cognizance Stage:- On 2
February, 2017, a two Judge bench of the Hon'ble Supreme Court in Criminal Appeal No.
1171 OF 2016 ( Arising out of S.L.P (Criminal) No.3338 OF 2015), Amrutbhai
Shambhubhai Patel Vs.Sumanbhai Kantibhai Patel and Ors,held that Magistrate cannot
order further investigation after the cognizance has been taken, process has been
issued and accused has entered appearance in response thereto. Similarly, In Nandita
Sethi vs. State of Orissa, Crl. Revision no. 478 of 2016, the Hon'ble Orissa High Court
held that Magistrate Can’t Direct Further Investigation On Defacto Complainant’s Plea.
The power of the Magistrate under section 156 (3) to direct further investigation is
clearly an independent power and does not stand in conflict with the power of the State
Government. The power conferred upon the Magistrate under section 156 (3) can be
exercised by the Magistrate even after submission of a report by the investigating
officer which would mean that it would be open to the Magistrate not to accept the
conclusion of the investigating officer and direct further investigation. This provision
does not in any way affect the power of the investigating officer to further investigate
the case and even after submission of the report as provided in section 173 (8). See.
State Of Bihar And Anr vs J.A.C. Saldanha And Ors,1980 AIR 326.
"inquiry" and "investigation"-Difference between.
Investigation is a matter for the police under the scheme of the Code. Judicial opinion
seems to be settled and there are several authorities of the Supreme Court where
interference by the Court into police investigation has not been approved. There is
however. residuary jurisdiction left in the court to give directions to the investigating
agency when it is satisfied that the requirements of the law are not being complied with
and investigation is not being conducted properly or with due haste and promptitude.
The court has to be alive to the fact that the scheme of the law is that the
investigation has been entrusted to the police and it is ordinarily not subject to the
normal supervisory power of the court. See. State Of West Bengal & Ors. Etc vs Sampat
Lal & Ors. Etc, 1985 SCR (2) 256.
''The main distinction, therefore, was that inquiry was a magisterial process while
investigation was the process of collection of evidence through the police machinery.''
"When an unnatural death occurs or a prima facie case of the commission of a cognizable
offence is brought to the notice of the police authorities, it is their duty under the
Code of Criminal Procedure to conduct an investigation and ascertain the cause of the
death. See. State Of West Bengal & Ors. Etc vs Sampat Lal & Ors. Etc, 1985 SCR (2)
256.

Statutory power of police to conduct investigation

The Officer in charge of a police station is vested with the power to
conduct investigation as per Section 156 and 157 Cr.P.C., and these powers may
be summed up as follows.

1. An officer in charge of a Police Station may conduct investigation, deriving

power under section 156 (1) Cr.P.C.

2. As per Section 156 (1) Cr.P.C., the officer in charge of the Police Station is
authorized with the power of investigation only in respect of cognizable
offences.

3. Prior permission or authorization by a Magistrate is not necessary to a

Police Officer for conducting investigation in a cognizable case.

4. In the case of non-cognizable cases, the officer in charge of a Police Station

is not empowered to take up investigation, but he can do so after getting
prior permission from a competent Magistrate.

5. When the criminal case consists of cognizable offences but coupled with
non-cognizable then the officer in charge of the Police Station may treat the
case as cognizable offences (155 (4) Cr.P.C) and he can proceed with
 investigation.

6. Vesting of power to register a cognizable offence is one thing but vesting of

power to take up investigation is something else. An officer in charge of a
police station is bound to register an FIR if it discloses the commission of a
cognizable offence, irrespective of the fact whether such cognizable offence
is committed with his local limit or not. No option or discretion is given to
him to either register or refuse to register a cognizable offence. But such an
officer in charge of a Police station is authorized to take up investigation
only when such offience is committed within his local jurisdiction as
mandated in sections 177-189 Cr.P.C if the offence for which the officer in
charge of a Police Station has registered a case U/Sec. 154 Cr.P.C., does not
fall within the local jurisdiction of that Police Station, the Police Officer shall
forward such a case to Jurisdictional Police Station after conducting
preliminary enquiry for the purpose of ascertaining the jurisdiction.

7. As investigation is being conducted by a jurisdictional officer in charge of a

police station with regard to a cognizable offence, it shall not be called in
question by any Court as per Section 156 (2) Cr.P.C.

8. Magistrate who is empowered to take cognizance of an offence under

Section 190 Cr.P.C., is also vested with the power to direct the Police Officer
in charge of a Police Station to take up investigation of information
forwarded by him u/s 156 (3) Cr.P.C.

When a private complaint is filed before a competent Magistrate, he may

proceed to take cognizance of the offence on the complaint and examine
the complaint u/s 200 Cr.P.C., or may order investigation by police u/s 156
(3) Cr.P.C., prior to taking cognizance. In such cases, the police shall
register a case on the basis of the complaint forwarded by such a
Magistrate and may take up investigation of the offences disclosed and
send a police report u/s 173 (2) Cr.P.C.

9. After taking cognizance of the offence on a complaint, the Magistrate may

order investigation by police for the purpose of deciding the issue of
process against the accused u/s 202 (1). Under Section 202 Cr.P.C., the
competent Magistrate may direct the investigation to be done by a private
person including an advocate. But such investigation may not have the
requisite impact and force, as is done by a Police Officer. Such a person
may have all the investigative powers except the power to arrest without a
warrant (section 202 (3) Cr.P.C).

10. While section 156 Cr.P.C., deals with the power of police officer to start
investigation after registering a cognizable case, section 157 Cr.P.C.,
envisages a situation where in a police officer is empowered to start an
 investigation even prior to registration of a cognizable offence.

11. As per proviso to section 157 (1) (a) and (b) Cr.P.C., when the police officer
receives information from a known person about the commission of an
offence which is not serious in nature, he need not proceed to the scene of
crime or depute an officer subordinate to him to visit such scene. If it
appears to the police officer that there is no sufficient ground to start
investigation, he shall not investigate the case.

12. In cases, where the offences are not serious or where no sufficient ground
exists, as per information furnished under section 154 Cr.P.C., or
information otherwise received u/s 157 (1) Cr.P.C., the police officer shall
notify the informant that they will not or not cause it to be investigated.

The Stages of investigation by police may include:

a. Registration of a case
b. Ensuring medical treatment to the injured
c. Proceeding to the spot
d. Ascertainment of the facts and circumstances of the case
e. Observation of the scene of occurrence and collection of material
objects.
f. Examination of witnesses and recording their statements
g. Recording of dying declaration, if necessary
h. Conducting inquest if it is warranted and sending the body for autopsy
I. Arrest of the accused and recording his confessional statement
j. Seizure of material objects in consequence to the confession
k. Conducting of test identification parade, if it warrants
l. Getting answers as to who, when, where, why and how of the case.
m. Formation of an opinion as to whether by the evidence collected, there
is a case to proceed against the accused before a Court of Law or not and
n. Laying Charge Sheet (Final Report) against the accused in a competent
Court of Law under appropriate sections of Law.

The investigation implies collection of evidence which are admissible in Court.

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.

Investigation, when starts?

The investigation begins when information relating to cognizable offence receives

by an officer in charge of the policfe station and he issues the FIR. The
investigation can be started after receipt of complaint referred by the Magistrate
under section 156 clause 3 of Cr.P.C.

FIR is not a pre-condition for starting investigation. It was held in Emperor vs.
Khaza Nazeer Ahmed, AIR 1945 Privy Council 19 that FIR is no precondition in
starting an investigation. Section 156 Cr.P.C., gives statutory authority to Police to
begin investigation without FIR and without the permission of the Magistrate. The
Supreme Court has affirmed this in State of West Bengal V. S. N. Basak, air
1963 sc 447=1963 (1) Cr.L.J 341.

In K. M. Nanavati v. state of Maharashtra 1962 (1) Cr.L.J. 521 (541-S.C.),

the Court held that – A First Information Report though an important document,
is not, however, a sine qua non for starting the investigation as investigation is a
question of fact and can be started without drawing up of a formal FIR.

In State of Uttar Pradesh v. Bhagawant Kishore, 1964 (1) Cr.L.J 140

(S.C). Section 157 Cr.P.C., lays down that an investigation can be initiated either
on information or otherwise. It thus follows from the said section that an officer-
in-charge of a police station can start investigation either on information or
otherwise (e.g, suo motu) as receipt of information is not a condition precedent
for investigation.

Purpose of Investigation

In Jamuna vs. State of Bihar, 1974 Cr.L.J. 890 (S.C Para 11 of the report).
The Court held that “the duty of the investigating officer is not merely to booster
up a prosecution case with such evidence as may enable a Court to record a
conviction but to bring out the real unvarnished truth”.

Can an illegally obtained evidence be admissible?

Yes, illegality committed at the stage of investigation does not vitiate the trial in
the absence of prejudice to the accused, so also a piece of relevant evidence does
not become inadmissible merely because it is illegally obtained. Supreme Court
accepted this observation in R.M. Malkani vs. State of Maharashtra, 1973
Cr.L.J.1228 (SC)= AIR 1973 SC 157.
Who can investigate and right of investigation?

Any officer-in-charge of a police station may investigate any cognizable case

(S.156 (1) Cr.P.C). Police officers superior in rank to an officer in charge of police
station may exercise the same power (S.36 Cr.P.C).

The police authority to investigate any cognizable offence without any order of a
Magistrate. Section 156 (1) provides the same. The Police officer is having the
power to conduct investigation over the local area which a Court having
jurisdiction would have power to inquire into or try under the provisions of
chapter XIII of Cr.P.C. Any Magistrate empowered under section 190 Cr.P.C., to
take cognizance of any offence may refer any cognizable case to the police for
investigation.

In Public Porsecutor vs. Matam Bhai, AIR 1970 AP 99 held that – Where the law
under section 156 (1) empowers a police officer to investigate a cognizable
offence, sub-section (2) of section 156 protects a police officer who investigated a
case which such officer was not empowered to investigate. The provision in sub-
section (2) makes it abundantly plain that want of authority in the investigating
officer investigating a case under sub-section (1) will not vitiate the trial started
on his report or complaint. Such defects have no bearing on the competence of
the Court to take cognizance of the offence, however, serious the defect may be,
or on the procedure of the trial. Even an invalid report of a police officer may fall
either under clause (a) or (b) of section 190 (1). then cognizance taken on the
basis of an invalid report is in the nature of an error in a proceeding antecedent
to the trial and to such a case section 465 (1) will be attracted.

Functions of the police and the Court in investigation

Non-serious offences have been declared as non-cognizable offences. Serious

cases have been declared as cognizable cases. An aggrieved person of non-
cognizable offence may either report matter to the police or to file a complaint
before the Magistrate. Such cases filed before the Magistrate is called a complaint
case. On completion of investigation into a cognizable offence, police will file a
police report under Section 173 (2) of Cr.P.C. On taking cognizance of the offence
the police function of investigation comes to an end. However it is not preclude
the police to conduct further investigation as contained in section 173 (8) of
Cr.P.C. The Court can also direct further investigation u/s 173 (8) of Cr.P.C.

After taking cognizance the Court commences the adjudicatory function to

determine whether an offence is committed, fo so, by whom,what is the offence,
and what is the offence proved and there after the court will impose adequate
punishment. In certain cases, the police can also award compensation.

The functions of the police and the court are well defined and well demarcated in
the field of crime detection and adjudication.

The Apex Court recognized these functions in King Emperor Vs. Khwaja Nazir
Ahmed (1944), 71 IND APP 203 where the Privy Council as observed as
under:

“In India, as has been shown, there is a statutory right on the part of the police
to investigate the circumstances of an alleged cognizable crime without requiring
any authority from the judicial authorities and it would, as their Lordships think,
be an unfortunate result if it should be held possible to interfere with those
statutory rights by an exercise of the inherent jurisdiction of the Court. The
functions of the judiciary and the police are complementary, not overlapping, and
the combination of individual liberty with a due observance of law and order is
only to be obtained by leaving each to exercise its own function, always, of
course, subject to the right of the Court to intervene in an appropriate case when
moved under section 491 of the Criminal Procedure Code to give directions in the
nature of habeas corpus. In such a case as the present, however, the Court’s
functions begin whena charge is preferred before it, and not until then”.

Power to direct investigation by Magistrate

Order under 156 (3) of Cr.P.C., to be passed by the Magistrate

The Court is not supposed to interfere with the investigation; however, the Court
can direct investigation.

1. The aggrieved party is having three options to report about the commission
of cognizable offence.

2. He can report to the officer in charge of the police station or superior police
officer in the rank.

3. He can file a complaint before the Magistrate who is having jurisdiction over
the local area in which the offence was committed.

4. He can also lodge a complaint before the Chief Judicial Magistrate of the
concerned district.
If a complaint is filed before the Magistrate/CJM they can direct investigation to
the police under 156 (3) of Cr.P.C., or they can inquire to the matter. While
referring the matter to the police, the Magistrate can direct the investigation or
he can also direct the police to register FIR and to investigate an offence. There
was different opinions in regarding the order to be passed under 156 clause 3 of
Cr.P.C. Some High Courts opined while passing order under 156 (3), the
Magistrate was not empowered to direct the police to register the FIR. The
registration of FIR pertains to the sphere of powers of investigation by the police,
and registration of the FIR is done in exercise of powers by the police under
section 154 Cr.P.C. Some Courts opined that the Magistrate can direct the police
to register a case and investigate into the same.

The Apex Court in Suresh Chan Jain vs. State of M.P. AIR 2001 SC 571
settled the issue that the Magistrate, while passing order under 156 (3) of Cr.P.C.,
is empowered to direct the police to register FIR and investigate. It is held by the
Supreme Court-

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

To whom a Magistrate can direct investigation under 156 (3) of Cr.P.C?

The Magistrate can direct investigation to the officer in charge of the police
station under section 156 (3) of Cr.P.C. He cannot direct the investigation to be
conducted by a superior police officer to the tough officer in charge of a police
station. However, the superior police officer can conduct investigation by
exercising his power under section 36 of Cr.P.C. So also the Government can give
direction that investigation to be conducted by a superior police officer.

In Central Bureau of Investigation vs. State of Rajasthan, 2001 SCC (Cri.)

524=AIR 2001 SC 668=2001 Cr.L.J 968 Apex Could held that Section 156 (3)
of Code of Criminal Procedure empowers a Magistrate to direct the officer in
charge of a police station to investigate any cognizable offence over which such
Magistrate has jurisdiction. The Magistrate cannot direct a superior officer of the
police to conduct investigation under section 156 (3) of Cr.p.c., though superior
officer of the police is empowered to act as officer in charge of the police station
under section 36 of the Code of Criminal Procedure. It is permissible for any
superior officer of police to take over the investigation from the officer in charge
of the police station either suo motu or on the direction of the superior officer or
even that of the Government. However, the magisterial power cannot be
stretched. Under Section 156 (3) of Cr.P.C., beyond directing the officer in charge
of a police station to conduct the investigation. A Magistrate cannot direct Central
Bureau of Investigation to exercise of his powers under section 156 (3) of the
Code of Criminal Procedure.

Can a Magistrate recall his order u/s 156 (3) of Cr.P.C., passed for
Investigation?

In Dharmesh Bhai Vasudev Bhai and others vs. State of Gujarath and others,
reported in 2009 Criminal Law Journal 2969, Crl.A.No.914 with

915 to 918 of 2009 – Date of Judgment 5.5.2009. The Magistrate ordered

investigation u/s 156 (3) of Cr.P.C. Thereafter the complainant filed an application
before the learned Magistrate on or about 6-7-2004 informing the Court that a
compromise has been entered into in between the accused and the bank pursuant
where to and another application where of an order was passed directing the
police, as the compromise has been taken place between the complainant and
accused, which is being proclaimed by Ex.4, the complainant do not want to
proceed further with the complaint. The order is being passed to withdraw the
enquiry. It is to be informed to the concerned police station.

The legality and validity of this order was questioned before the Supreme Court in
the above said Case. The Supreme Court held that;

“Interference in the exercise of the statutory power of investigation by the police

by the Magistrate. Direction for withdrawal of any investigation, which si sought
to be carried out, is not envisaged under the Code of Criminal Procedure. The
Magistrate’s power in this regard is limited. Even otherwise, he does not have any
coherent power, ordinarily he has no power to recall his order”.

Has a Magistrate power to direct the Central Bureau of Investigation to

conduct investigation into any offence?

As per Section 156 (1), any officer in charge of police station may investigate any
cognizable case without order from the Magistrate. Any Magistrate empowered
under section 190 may order such investigation as per section 156 (3).

What is contained in 156 (3) is the power to order investigation referred to sub-
section 1 of 156, because the words ‘order such an investigation as above
mentioned’ in sub-section 3 are unmistakably clear as referring to the other sub-
section. Thus the power is to order an ‘officer in charge of a police station’ to
conduct investigation. Officer in charge of a police station is defined in section 2
(o) of the Code. Police station is defined under Sec. 2 (s) of the Code. Section
156 (3) of the Code empowers the Magistrate to direct such officer in charge of
the police station to investigate any cognizable case over which such Magistrate
has jurisdiction. The magisterial power cannot be stretched under the said sub-
section beyond directing the officer in charge of a police station to conduct the
investigation. Therefore, the magistrate cannot direct the CBI to conduct
investigation into any offence (Central Bureau of Investigation through SP.,
Jaipur vs. state of Rajasthan and Ors., AIR 2001 SC 668-2001 (1) ALD
(Crl.) 447.

When a Magistrate orders investigation under section 156 (3), he can direct the
officer in charge of a police station to conduct such an investigation and not to
superior police officer.

Can a prospective accused challenge the order passed by the Magistrate

under 156 (3) of Cr.P.C?
The accused has no right to challenge an order passed under section 156 (3) of
the code at pre-cognizance stage by a Magistrate. The accused has no right to file
revision under section 397 (1) being barred by section 397 (2).

This matter was considered in detail by this Court in the case of Chandan vs.
State of U.P and another 2007 (57) ACC 508 also in which, it was held that
accused does not have any right to challenge an order passed under section 156
(3) Cr.P.C.

Relying upon the decision of the Apex Court in the case of Central Bureau of
Investigation Vs. State of Rajasthan (2001 (42) ACC 451), = AIR 2001
SC 668, it was held by this court in the case of Rakesh Puri Vs. State as
follow:-

“It is preposterous even to cogitate that a person has a right to appear before the
Magistrate to oppose an application seeking a direction from him for registration
and investigation of the offence when he has no right to participate in the said ex-
parte proceeding. If permitted this will amount to killing of foetus of investigation
in the womb when it was not there at all. Such power has not been conferred
under the law on the prospective accused. When the accused does not have any
right to participate in the proceeding, how can he be permitted to challenge an
interlocutory order passed in such a proceeding. If an accused cannot stop
registration of a complaint under section 190 (1) (a) Cr.P.C., howsoever, fanciful,
mala fide or absurd the allegations may be, he certainly does not possess the
power to stall registration of FIR of cognizable offence against him”.

In view of the law laid down in the aforesaid cases, it can be concluded that the
prospective accused has no right to stop the registration of the FIR by challenging
the order passed by the Magistrate under section 156 (3) of Cr.P.C., allowing the
application and directing investigation.
Re-Investigation and Further Investigation
Can the Magistrate direct further investigation after submission of Final
Report?

Yes, the Magistrate can direct to make further investigation after submission of
the Final report.

Vinay Tyagi … Appellant Versus Irshad Ali @ Deepak &

now we must examine the powers of the Court to direct investigation. Investigation can be ordered in
varied forms and at different stages. Right at the initial stage of receiving the FIR or a complaint, the
Court can direct investigation in accordance with the provisions of Section 156(1) in exercise of its
powers under Section 156(3) of the Code. Investigation can be of the following kinds :
(i) Initial Investigation.
(ii) Further Investigation.
(iii) Fresh or de novo or re-investigation.

14. The initial investigation is the one which the empowered police officer shall
conduct in furtherance to registration of an FIR. Such investigation itself can lead
to filing of a final report under Section 173(2) of the Code and shall take within
its ambit the investigation which the empowered officer shall conduct in
furtherance of an order for investigation passed by the court of competent
jurisdiction in terms of Section 156(3) of the Code.
‘Further investigation’ is where the Investigating Officer obtains further oral or
documentary evidence after the final report has been filed before the Court in
terms of Section 173(8). This power is vested with the Executive. It is the
continuation of a previous investigation and, therefore, is understood and
described as a ‘further investigation’. Scope of such investigation is restricted to
the discovery of further oral and documentary evidence. Its purpose is to bring
the true facts before the Court even if they are discovered at a subsequent stage
to the primary investigation. It is commonly described as ‘supplementary report’.
‘Supplementary report’ would be the correct expression as the subsequent
investigation is meant and intended to supplement the primary investigation
conducted by the empowered police officer. Another significant feature of further
investigation is that it does not have the effect of wiping out directly or impliedly
the initial investigation conducted by the investigating agency. This is a kind of
continuation of the previous investigation. The basis is discovery of fresh
evidence and in continuation of the same offence and chain of events relating to
the same occurrence incidental thereto. In other words, it has to be understood
in complete contradistinction to a ‘reinvestigation’, ‘fresh’ or ‘de novo’
investigation.
Neither the Investigating agency nor the Magistrate has any power to
order or conduct ‘fresh investigation’. This is primarily for the reason that it would
be opposed to the scheme of the Code. It is essential that even an order of
‘fresh’/’de novo’ investigation passed by the higher judiciary should always be
coupled with a specific direction as to the fate of the investigation already
conducted.
However, in the case of a ‘fresh investigation’, ‘reinvestigation’ or ‘de novo
investigation’ there has to be a definite order of the court. The order of the Court
unambiguously should state as to whether the previous investigation, for reasons
to be recorded, is incapable of being acted upon. The cases where such direction
can be issued are few and far between. This is based upon a fundamental
principle of our criminal jurisprudence which is that it is the right of a suspect or
an accused to have a just and fair investigation and trial. This principle flows from
the constitutional mandate contained in Articles 21 and 22 of the Constitution of
India. Where the investigation ex facie is unfair, tainted, mala fide and smacks of
foul play, the courts would set aside such an investigation and direct fresh or de
novo investigation and, if necessary, even by another independent investigating
agency. As already noticed, this is a power of wide plenitude and, therefore, has
to be exercised sparingly. The principle of rarest of rare cases would squarely
apply to such cases. Unless the unfairness of the investigation is such that it
pricks the judicial conscience of the Court, the Court should be reluctant to
interfere in such matters to the extent of quashing an investigation and directing
a ‘fresh investigation’. In the case of Sidhartha Vashisht v. State (NCT of Delhi)
[(2010) 6 SCC 1], the Court stated that it is not only the responsibility of the
investigating agency, but also that of the courts to ensure that investigation is
fair and does not in any way hamper the freedom of an individual except in
accordance with law. An equally enforceable canon of the criminal law is that high
responsibility lies upon the investigating agency not to conduct an investigation in
a tainted or unfair manner. The investigation should not prima facie be indicative
of a biased mind and every effort should be made to bring the guilty to law as
nobody stands above law de hors his position and influence in the society. The
maxim contra veritatem lex nunquam aliquid permittit applies to exercise of
powers by the courts while granting approval or declining to accept the report.
Now, we come to the former question, i.e., whether the Magistrate has
jurisdiction under Section 173(8) to direct further investigation.
20. The power of the Court to pass an order for further investigation has been a
matter of judicial concern for some time now. The courts have taken somewhat
divergent but not diametrically opposite views in this regard. Such views can be
reconciled and harmoniously applied without violation of the rule of precedence
In the case of Minu Kumari & Anr. v. State of Bihar & Ors. [(2006)
4 SCC 359], this Court explained the powers that are vested in a Magistrate upon
filing of a report in terms of Section 173(2)(i) and the kind of order that the Court
can pass. The Court held that when a report is filed before a Magistrate, he may
either (i) accept the report and take cognizance of the offences and issue
process; or (ii) may disagree with the report and drop the proceedings; or (iii)
may direct further investigation under Section 156(3) and require the police to
make a further report.

Mithabhai Pashabhai Patel vs. State of Gujarat (supra) held as under:

“13. It is, however, beyond any cavil that ‘further investigation’ and ‘reinvestigation’ stand
on different footing. It may be that in a given situation a superior court in exercise of its
constitutional power, namely, under Articles 226 and 32 of the Constitution of India could
direct a ‘State’ to get an offence investigated and/or further investigated by a different
agency. Direction of a reinvestigation, however, being forbidden in law, no superior court
would ordinarily issue such a direction. Pasayat, J. in Ramachandran v. R. Udhayakumar
(2008) 5 SCC 513 opined as under: (SCC p. 415, para 7) ‘7. At this juncture it would be
necessary to take note of Section 173 of the Code. From a plain reading of the above
section it is evident that even after completion of investigation under sub-section (2) of
Section 173 of the Code, the police has right to further investigate under sub-

section (8), but not fresh investigation or

reinvestigation.’

A distinction, therefore, exists between a reinvestigation and further investigation.

in the case of Hemant Dhasmana v. CBI, [(2001) 7 SCC 536] where the Court
held that although the said order does not, in specific terms, mention the power
of the court to order further investigation, the power of the police to conduct
further investigation envisaged therein can be triggered into motion at the
instance of the court. When any such order is passed by the court, which has the
jurisdiction to do so, then such order should not even be interfered with in
exercise of a higher court’s revisional jurisdiction. Such orders would normally be
of an advantage to achieve the ends of justice. It was clarified, without
ambiguity, that the magistrate, in exercise of powers under Section 173(8) of the
Code can direct the CBI to further investigate the case and collect further
evidence keeping in view the objections raised by the appellant to the
investigation and the new report to be submitted by the Investigating Officer,
would be governed by sub-Section (2) to sub-Section (6) of Section 173 of the
Code. There is no occasion for the court to interpret Section 173(8) of the Code
restrictively. After filing of the final report, the learned Magistrate can also take
cognizance on the basis of the material placed on record by the investigating
agency and it is permissible for him to direct further investigation. Conduct of
proper and fair investigation is the hallmark of any criminal investigation.

Principle in Vinay tyagi case

30. Having analysed the provisions of the Code and the various judgments as afore-indicated, we
would state the following conclusions in regard to the powers of a magistrate in terms of Section
173(2) read with Section 173(8) and Section 156(3) of the Code :
 1. The Magistrate has no power to direct ‘reinvestigation’ or ‘fresh investigation’ (de novo)
in the case initiated on the basis of a police report.

2. A Magistrate has the power to direct ‘further investigation’ after filing of a police report
in terms of Section 173(6) of the Code.

3. The view expressed in (2) above is in conformity with the principle of law stated in
Bhagwant Singh’s case (supra) by a three Judge Bench and thus in conformity with the
doctrine of precedence.

4. Neither the scheme of the Code nor any specific provision therein bars exercise of such
jurisdiction by the Magistrate. The language of Section 173(2) cannot be construed so
restrictively as to deprive the Magistrate of such powers particularly in face of the
provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such power
would have to be read into the language of Section 173(8).

5. The Code is a procedural document, thus, it must receive a construction which would
advance the cause of justice and legislative object sought to be achieved. It does not stand
to reason that the legislature provided power of further investigation to the police even after
filing a report, but intended to curtail the power of the Court to the extent that even where
the facts of the case and the ends of justice demand, the Court can still not direct the
investigating agency to conduct further investigation which it could do on its own.

6. It has been a procedure of proprietary that the police has to seek

permission of the Court to continue ‘further investigation’ and file
supplementary chargesheet. This approach has been approved by this
Court in a number of judgments. This as such would support the view
that we are taking in the present case.

Principle in Vinay tyagi case : At this stage, we may also state another
well-settled canon of criminal jurisprudence that the superior courts have the
jurisdiction under Section 482 of the Code or even Article 226 of the Constitution
of India to direct ‘further investigation’, ‘fresh’ or ‘de novo’ and even
‘reinvestigation’. ‘Fresh’, ‘de novo’, and ‘reinvestigation’ are synonymous
expressions and their result in law would be the same. The superior courts are
even vested with the power of transferring investigation from one agency to
another, provided the ends of justice so demand such action. Of course, it is also
a settled principle that this power has to be exercised by the superior courts very
sparingly and with great circumspection.
The power to order/direct ‘reinvestigation’ or ‘de novo’ investigation falls in the
domain of higher courts, that too in exceptional cases.

Can a Magistrate monitor investigation to ensure proper and fair

investigation?
The Apex Court in Sakiri Vasu Vs. State of U.P. 7 December 2007,
AIR 2008 SC 907 = 2008 (2) SCC 409 = (2008) 1 SCC (Cri.) 440
interpretated section 156 (3) of Cr.P.C., and laid down principle that the
Magistrate can check the duties performed by the police and in case it
appears not satisfactorily, he can issue a direction to the police to do
investigation properly and can monitor the same.

The Court held in para 11 that

11. In this connection we would like to state that if a person has a grievance
that the police station is not registering his FIR under Section 154 Cr.P.C.,
then he can approach the Superintendent of Police under Section 154 (3)
Cr.P.C., by an application in writing. Even if that does not yield any
satisfactory result in the sense that either the FIR is still not registered, or
that even after registering if no proper investigation is held, it is open to the
aggrieved person to file an application under Section 156 (3) Cr.P.C., before
the learned Magistrate concerned. If such an application under Section 156
(3) is filed before the Magistrate, the Magistrate can direct the FIR to be
registered and also can direct a proper investigation to be made, in a case
where, according to the aggrieved person, no proper investigation was
made. The

Magistrate can also under the same provision monitor the investigation to
ensure a proper investigation.

The Court further held in para 14 to 18 that

14. Section 156 (3) states:

Any Magistrate empowered under Section 190 may

Order such an investigation as abovementioned.

The words as abovementioned obviously refer to Section 156 (1), which

contemplates investigation by the officer in charge of the Police Station.

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

16. The power in the Magistrate to order further investigation under

Section 156 (3) is an independent power, and does not affect the power of
 the Investigating officer to further investigate the case even after
submission of his report vide Section 173 (8). Hence the Magistrate can
order re-opening of the investigation even after the police submits the final
report, vide State of Bihar Vs. A.C. Saldanna AIR 1980 SC 326 (Para 19).

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

18. It is well-settled that when a power is given to an authority to do

something it includes such incidental or implied powers which would ensure
the proper doing of that thing. In other words, when any power is expressly
granted by the statute, there is impliedly included in the grant, even without
special mention, every power and every control the denial of which would
render the grant itself ineffective. Thus where an Act confers jurisdiction it
impliedly also grants the power of doing all such acts or employ such means
as are essentially necessary to its execution.

Monitoring investigation – principles laid down by the Apex Court.

The Apex Court in D. Benupani Asst. Director, Enforcement Directorate

(FERA) Vs. A. K. Bajoria, JT 1997 (9) SC 379), held that the law laid down by
the Supreme Court is that a blanket order

fully insulating a person from arrest would make his interrogation a mere ritual. It
is not the function of the court to monitor investigation processes so long as such
investigation does not transgress any provision of law. It must be left to the
investigating agency to decide venue, the timings and the questions and manner
of putting such questions to persons involved in such offences.

Distinction between section 156 (3) of Cr.P.C and Section 202 of Cr.P.C.

1. Power under section 156 (3) can be invoked by Magistrate at pre-

cognizance stage whereas powers under section 202 are to be invoked after
cognizance is taken but before issuance process.

2. Once the Magistate takes cognizance he is thereafter precluded from

ordering investigation under section 156 (3).

3. The power to direct investigation to the police authorities is available to the

Magistrate both under section 156 (3) and Sec. 202 of Cr.P.C.
4. The only difference is the stage at which the said powers may be invoked.

5. The Magistrate cannot direct investigation to any other person other than
police officer under 156 (3) of Cr.P.C., but he can direct investigation to any
other person other than police officer under section 202 of Cr.P.C.

6. In ordering an investigation under 156 (3) of the code, the magistrate is not
empowered to take cognizance of the offence and such cognizance is taken
only on the basis of complaint of the facts by him which includes a police
report of such facts or information received from any person, other than a
police officer, under section 190 of the Code. Section 200 which falls in
chapter XV, indicates the manner in which the cognizance has to be taken
and that the magistrate may also inquired to the case himself or direct an
investigation to be made by a police officer before issuing process.

7. When a Magistrate orders investigation under Chapter XII of the code, he

does so before he takes cognizance of offence. Once he takes cognizance of
the offecne, he has to follow the procedure envisaged in chapter XV of the
Code. The inquiry contemplated under section 202 (1) or investigation by
police officer or by any other person is only to help the Magistrate to decide
whether or not there is sufficient ground for him to proceed further on
account of the fact that the cognizance has already been taken by him of
the offence disclosed in the complaint but issuance of process had been
post-poned.

8. When the complaint is referred under 156 (3) the police officer has to issue
the FIR but if it is referred under section 202 the police officer is not
supposed to issue the FIR. He has to make a G.D. entry and to proceed for
investigation.

9. After completion of investigation the police officer will forward police report
under section 173 (2) of Cr.P.C. on the complaint referred under 156 (3).
The police officer will file the report u/s 202 after completion of investigation
on the complaint referred u/s 202 Cr.P.C.

10. The police officer can make the arrest of the offenders during the course of
investigation on the complaint referred under 156 (3) of Cr.P.C. if an
investigation u/s 202 (1) is made by a person not being a police officer, he
shall have for the investigation all the powers conferred by the Cr.P.C. on an
officer in charge of police station, except a power to arrest without warrant.
(Rameshbhai Pandurao Hedau vs State of Gjarat on 19 March, 2010).

Negligence in investigations

Can negligence on part of investigating officer affect credibility of

prosecution version?

When direct testimony of eye witnesses corroborated by medical evidence fully

establish prosecution version, failure or omission or negligence on part of
investigating officer cannot affect credibility of prosecution version. Defective
investigation is not fatal where ocular testimony is credible.

In Dhanaj Singh @ Shera and Ors. Vs. State of Punjab on 10 March,

2004 : AIR 2004 SC 1920, 2004 (1
) ALD Cri 687, 2004 Cri.L.J 1807

In the case of a defective investigation the Court has to be circumspect in

evaluating the evidence. But it would nor be right in acquitting an accused
person solely on account of the defect; to do so would tantamount to
playing into the hands of the investigating officer if the investigation is
designedly defective. (Karnel Singh v. State of M.P. 11TH August
1995, AIR 1995 SC 2472)

In Paras Yadav and Ors. V. State of Bihar, 12 th January 1999, AIR

1999 SC 644, it was held that if the lapse or omission is committed by the
investigation agency or because of negligence the prosecution evidence is
required to be examined dehors such omissions to find out whether the said
evidence is reliable or not. The contaminated conduct of officials should not
stand on the way of evaluating the evidence by the courts; otherwise the
designed mischief would be perpetuated and justice would be denied to the
complainant party.

Acquitting the accused on the sole ground of loopholes in the

investigation would be adding insult to inquiry.

In Karnel Singh vs. The State of M.P., 1995 air 2472, 1995 SCC (5)
518, held that In cases of defecting investigation the Court has to be
circumspect in evaluating the evidence but it would not be right in
acquitting an accused person solely on account of the defect; to do so would
tantamount to playing into the h88888ands of the investigating officer if the
investigation is designedly defective. Any investigating officer, in fairness to
the prosecutrix as well as the accused, would have recorded the statements
the statements of the two witnesses and would have drawn up a proper
seizure-memo in regard to the Chaddi. That is the reason why we have said
that the investigation was slip shod and defective. We must admit that the
defective investigation gave us some anxious moments and we were at first
blush inclined to think that the accused was prejudiced. But on closer
scrutiny we have reason to think that the loopholes in the investigation were
left to help the accused at the cost of the poor prosecutrix, a labourer. To
acquit solely on that ground would be adding insult to injury.
 Rights of accused during investigation

What are the rights of accused during investigation?

The accused is having the following rights.

1. Right to free from torture

2. Right to compensation for torture

3. Right to privacy

4. Right to have record

Section 159 : Power to hold investigation or inquiry

After receipt of the report under section 157 the Magistrate is having several
alternatives when the officer in charge of the police station refuses to investigate
a cognizable case and the superior officer of police concurs with his view, the
Magistrate has the following alternative:

a) He may accept the report and close the case; or

b) He may order police to investigate; or

c) He may make an inquiry, or

d) He may depute his subordinate Magistrate to make inquiry, or

e) He may take cognizance, examine the witnesses and without issuing

process, direct the police to ascertain by investigation whether there are sufficient
grounds for proceeding.
The power of the police to investigate any cognizable offence is
uncontrolled by the Magistrate and it is only in cases where the police decides not
to investigate that the Magistrate can either direct an investigation or himself
proceed or depute a subordinate magistrate to proceed to enquire into the case.
But Magistrate has no power to stop investigation and direct such magisterial
enquiry in cases where police has proceeded with investigation (S. N. Sarma V.
Bipin Kumar Tiwari – AIR 1970 SC 786).

The object of this Section is that if the police is negligent in their duties or for
some reasons unwilling to investigate, the Magistrate has to supervise the same.
He can direct an investigation.
 Procedure for investigation in Non-Cognizable Offence

Section 155 Cr.P.C., deals with procedure for investigation in non-cognizable

offence. There is a distinction between investigation of a cognizable offence and
non-cognizable offence. Officer in charge of a police station can register a case
and investigated to a cognizable offence though it was not committed within the
limits of the police station. But he cannot investigate an offence of a non-
cognizable case.

In Keshav Lal Thakur vs. State of Bihar, 1996 (4) Crimes 121 SC = 1996
(11) SCC 557=1996 (7) Scale 598=1997 (1) Supreme 150), the Supreme
Court held that neither the police was entitled to investigate the offence in
question without the prior permission of the Magistrate nor the CJM was entitled
to take cognizance on the report submitted by the police in violation of the
provisions of Section 155 (2) of Cr.P.C. The offence under Section 31 of the
Representation of the Peoples Act 1950 is non-cognizable and therefore, the
police could not have registered a case for such an offence under Section 154
Cr.P.C. The police is not entitled to investigate into a non-cognizable offence,
except pursuant to an order of Magistrate under section 155 (2) of Cr.P.C. In the
absence of such an order of a Magistrate in the instant case, neither the police
can investigate into an offence nor submit a report in the final form before the
Magistrate. The magistrate is empowered to treat a police report as a complaint
under section 2 (d) of Cr.P.C. if the police investigate into a cognizable offence on
the basis of any complaint and ultimately on completion of investigation comes to
the finding that the offence committed is non-cognizable in nature. By making
above observation the Supreme Court quashed the criminal proceeding against K.
L. Thakur.

Can a police officer arrest a person when he is authorized to investigate

into a non-cognizable offence?

If the police officer is authorized to investigate a non-cognizable case, that itself

will not give power to police to arrest the accused without warrant. In other
words, a separate warrant of arrest has to be procured for arrest of accused
wanted in a non-cognizable offence.

Broad Suprvision During Investigation

Magistrate has to walk the tightrope and balance to conflicting ideas, on one
side the seperation of executive from judiciary, namely the autonomy of
investigation on one hand, and on the other, the imperatives of fair, free and
impertial investigation and to ensure that an investigation is an effective
investigation. This is a circumstantial balance to the struck by the magistrate as
per the facts of the case. For eg: the magistrate cannot or rather ought not to
direct the IO to do a particular thing, however, he can ask the IO to investigate
from a particular angle.

This power springs from section 156(3) Cr.PC only, by virtue of the doctrine
of implied powers, where the statue gives a particular power, it impliedly gives all
the powers necessary to make the said power effective. (Sakiri Vasu V. State
(2008) SC).

The exact import of word monitoring of investigation is circumstantial. The

magistrate has toensure it is an effective investigation. The correctness of Sakiri
Vasu has been questioned subsequently by the SC in Nirmal Singh Kahlon (2009)
2 judges bench, however nothing conclusive has been held in this regard and only
passing reference is made to the effect that the decision needs reconsideration.

SC has however followed Sakiri Vasu subsequently in T.C.Thangraj v.

V.Engammal, 2011 SC and many other decisions.

The exact import of word 'monitoring of investigation' is too circumstantial

to be put in a stratijacket. Placing a narrow interpretation on the phrase will
render it sterile. The phrase, therefore, ought toreceive a social context or liberal
interpretation. Illustrative case, where the powerto pass necessary directions
may be used are: to protect witnesses, check disregard of vital evidence (which
may get obliterated in course of time), non - examination of witnesses,
deliberate shielding of some accused, or the investigationofficer being interestedin
the case. In such cases, a magistrate ought to push the envelope andactively
monitor the investigation, while avoiding investigating himself, or directing
investigation by a specific agency, with respect to which there is a specific
embarago on the piowers of the magistrate.

Conclusion: According to Sir John Woodburn, Lieutenant-Governor of Bengal , " the evil
is essentially in the investigating staff. It is dishonest and it is tyrannical ... ". According
to him, "The honest policeman rigs the evidence to convict the man he knows is guilty.
Perhaps it is the only way he can get a conviction. The dishonest policeman rigs the
evidence to convict a man he knows is innocent." That the process of investigation
characterizes the nature of policing to a great extent and constitutes as one of the
most important occasions for bringing the police and 'publics' into contact. The process
is not an indivisible whole, but involves many interactional stages assuming different
forms of contact appropriate to each. There prevails a serious crisis of confidence that
afflicts public opinion toward the police.

It is apparent that ample powers are vested in the magistrate to check

aribitrary arrests. Police excesses & to facilitate a more incisive probe into the
discovery of truth, as various stages ofan investigation, and even after filing of the
police report.
 Never should a judge find himself in a situation where he has to make a grudging
confession ofacquitting a known culprit due to lack of evidence or investigative lapses.
A conscientious magistrate's Dharma also lies in the deft use of these provisions, in
order to uphold constitutuional values and the Rule of law.

Existing provisions can be interpreted creatively. Cues can be taken from the
magisterial role,as envisaged in other jurisdictions. No doubt, there would be questions
raised over themagistrate having descended into the arena. But the magistrate ought to
not to be unnecessaryily wary of such aspersions; or be a worshipper of dead habit,
convention, or the conplacency of the status quo, for no ideals, complacency of the
status quo, for no ideals, however hallowed, can be allowed to impede the voyage of
discovery, an affirmative duty for the search of truth.

Trial judge as the kingpin in administration of Justice........

(All India Jdges Association v. Union of India (1992) 1 SCC 119)

 1

‘RECORDING OF DYING DECLARATIONS’

(ARTICLE PRESENTED BY SRI R. SIVA KUMAR, XIII ADDITIONAL
DISTRICT JUDGE AT GAJUWAKA FOR THE WORK SHOP-I TO BE
HELD ON 18.11.2017 IN DISTRICT COURT, VISAKHAPATNAM)

“Truth sits on the lips of a dying man.”

….Mathew Arnold

INTRODUCTION

The words ‘Dying Declaration’ itself denote the meaning. Its

meaning is nothing but the words stated before death and in law, it is called

Dying Declaration. The legislature in its wisdom has enacted in Section

32(1) of the Evidence Act that “When the statement is made by a person as

to the cause of his death, or as to any of the circumstances of the

transaction which resulted in his death, in cases in which the cause of that

person’s death comes into question”, such a statement, written or verbal,

made by a person who is dead is itself a relevant fact. This provision has

been made by the legislature, advisedly, as a matter of sheer necessity by

way of an exception to the general rule that hearsay is no evidence and that

evidence which has not been tested by cross-examination, is not admissible.

Recording of Dying Declaration is very important task. Utmost care has to

be taken while recording a Dying Declaration. If the Dying Declaration is

recorded as per Rules, it carries full value. There is no particular form of

Dying Declaration. But, Rule 33 of Criminal Rules of Practice and Circular

Orders, 1990 directs the Magistrates to record questions and answers, signs

and gestures together with his own conclusion in the matter.

 2

A Dying Declaration may be in the following forms

1. Written form

2. Verbal form

3. Gestures and signs form (Queen Vs. Abdullah’s case)

Who may record Dying Declaration

1. Preferably a Magistrate

2. Police Officer also

[The police officer recording Dying Declaration must explain as to why a

Doctor or Magistrate did not record it [1979 Crl.L.J.700 (SC)]

3. A Doctor who treated the dying man

( i)1991 CRL.L.J. 2024, ii)AIR 1978 SC 1831 )

4. A Public Servant, and

5. A private person also

Mode of recording of Dying Declaration by Magistrate

1. On receiving the requisition to record a Dying Declaration, the

Magistrate should at once proceed to the hospital where the declarant is

being treated or where the dying person is kept on reaching the hospital or to

the place of injured.

[Here, it is note-worthy that the Magistrate should ascertain and note

the reason as to why he recorded the Dying Declaration at the place other

than the place mentioned in the requisition.]

2. Before taking down the declaration, the Magistrate shall disclose

his identity and also ask the declarant whether he is mentally capable of
 3

making a declaration. He should also put some simple questions to elicit

answer from the declarant with a view to knowing his state of mind and

should record the questions and answers, signs and gestures together with

his own conclusion in the matter.

[Undoubtedly, all the Magistrates are putting simple questions to the

declarant and noting down the answers. But many of the Magistrates are

not questioning the declarant as to whether the declarant is mentally

capable of making a declaration. Rule 33(2) of the Criminal Rules of

Practice and Circular Orders, 1990 directs the Magistrate to put this

question despite other simple questions before taking down a declaration.

Ofcourse, there may be a certificate from the Medical Officer as to the

mental condition of the declarant and the Magistrate is satisfying himself as

to the mental condition of the declarant by putting some simple questions

after disclosing his identity. But if said question is put to the declarant as

directed by said provision, the mental condition of the declarant would

come from his horse-mouth. To put it differently, the declarant himself will

be the best person to state as to his mental condition at the time of recording

his dying declaration. So, the Magistrate shall follow the direction of Rule

33(2) of the Criminal Rules of Practice scrupulously.]

3. While recording a Dying Declaration, the Magistrate shall keep in

view the fact that the object of such declaration is to get from the declarant

the cause of death or the circumstances of the transaction which resulted in

death.

[The very object of recording a Dying Declaration by the Magistrate

would fail if the Magistrate fails to get from the declarant the cause of death
 4

or the circumstances of the transaction which resulted in his death.

Therefore, he is required to put questions to the declarant intelligently to

get said required information from the declarant without putting leading

questions.]

4. It is also the duty of the Magistrate to record Dying Declaration in

the form of questions and answers and in the actual words of the declarant

as far as possible. A Dying Declaration must be recorded by the Magistrate

in the language of the victim and preferably in the form of question and

answer (AIR 1976 SC 1994). If the Magistrate does not make out the

language of the dying declarant, he may take the assistance of the person

who can translate the language of the victim. But the Magistrate should

obtain certificate from the translator that he truly translated the statement of

the dying declarant.

[Even the meanings and accent of the same vernacular language will

differ from one region to the other. So, whenever a different word, which is

not in use in the other place, is used by the declarant, it is essential to note

down the meaning of said word from the declarant having known from the

declarant. It avoids multiple interpretations.]

5. While recording the Dying Declaration, the Magistrate has to keep

in mind another important aspect of identification of the accused. It is the

duty of the Magistrate to try to obtain from the declarant all the particulars

necessary for identification of the accused.

[Many Dying Declarations are becoming futile for want of said

exercise of Magistrate to obtain the necessary particulars for identification

 5

of the culprit. It is to be kept in mind by the Magistrate whether the word

used by the declarant is sufficient for identification of the culprit or not. In

other words, if the declarant says that one Subba Rao of so and so village

stabbed him. The danger is there may be several persons in the village in

the name of Subba Rao. So, the Magistrate should obtain from the declarant

all the particulars necessary for identification of the culprit leaving no

scope for different interpretations.]

6. Every question put to the declarant and every answer or sign or

gesture made by the declarant in reply shall meticulously be recorded by the

Magistrate. When the declarant is not able to speak, his dying declaration

made by signs or gestures in response to the questions should meticulously

be recorded. In such cases, the statement should show the questions put and

the nature of the signs made in reply.

7. After completion of the recording, the Magistrate should read over

and explain the contents of the dying declaration to the declarant and if the

contents of recorded statement are admitted by the declarant as true and

correct, then only, the Magistrate should obtain signature or thumb mark of

the declarant on the statement.

[If the dying declarant is not able to sign though he is signatory, his

thumb mark can be obtained. If the declarant is unable to put his thumb

mark due to injuries, his toe mark can be obtained. The Magistrate should

not leave his job to obtain signature or thumb impression of the declarant to

others.]
 6

8. The Magistrate should also obtain a certificate from the Medical

Officer as to the mental condition of the declarant at the beginning of

recording of Dying Declaration and also at the completion of recording of

Dying Declaration that the declarant has been conscious and coherent and in

fit mental condition during recording of the declaration. But, it is note-

worthy here that Rule 33(2) of the Criminal Rules of Practice and Circular

Orders, 1990 directs the Magistrate that he should also obtain whenever

possible a certificate from the Medical Officer as to the mental condition of

the declarant. So, the words whenever possible used by our Honourable

High Court denote two things : 1)Said certificate from the Medical Officer

as to the mental condition of the declarant is not mandatory and that 2)A

Magistrate should obtain said certificate from the Medical Officer if the

Medical Officer is available to him. But, Honourable Apex Court of India

held in the case of Paparambaka Rosamma Vs. State of Andhra Pradesh,

reported in AIR 1999 SC 3455 that in the absence of a medical certification

that the injured was in a fit state of mind at the time of making the

declaration, it would be very much risky to accept the subjective satisfaction

of a Magistrate who opined that the injured was in a fit state of mind at the

time of making a declaration. But, in the case of Koli Chunilal Savji Vs.

State of Gujarat, reported in 1999 (9) SCC 562, Honourable Apex Court of

India held that if the materials on record indicate that the deceased was

fully conscious and was capable of making a statement, the dying

declaration of the deceased recorded by the Magistrate cannot be ignored

merely because the doctor had not made the endorsement that the deceased

was in fit state of mind to make the statement in question.

 7

9. A fact remains that the above noted reported decisions were

delivered by the two different Division Benches consisting of three

Honourable Judges. As the two aforesaid decisions expressed by two

benches of Honourable three Judges, are contradictory as to whether said

certification from the Medical Officer is necessary or not, the matter was

referred to the constitution bench consisting of five Honourable Judges

(Honourable Sri Justice G.B.Pattanaik, Honourable Sri Justice M.B.Shah,

Honourable Sri Justice Doraiswamy Raju, Honourable Sri Justice

S.N.Variava, Honourable Sri Justice D.M.Dharmadhikari) in the case of

Lakshman Vs. State of Maharashtra reported in AIR 2002 SC 2973 (C.B.).

In said Lakshman’s case, Honourable Apex Court of India over-ruled the

decision in above noted Rosamma’s case. Thus, what is directed by Rule

33(2) of Criminal Rules of Practice and Circular Orders, 1990, is to be

followed by all the Magistrates while recording Dying Declaration.

10. Then, the Magistrate should append a certificate stating that he

recorded the whole statement truly and correctly and that it has been read

over and explained to the declarant in vernacular and the declarant admitted

it as true. Then, the Magistrate shall sign the statement.

11. In conclusion, with propound sense of regret, I crave the

indulgence of the Magistrates to record the dying declaration carefully as

per rules, keeping in mind the sanctity of a Dying Declaration.

 1

::Test Identification Parade for Suspects::

Compiled and authored by:

K.V.L. Harinath
Chief Metropolitan Magistrate
Visakhapatnam

Introduction:

‘Test Identification Parade (TIP) - dissecting and defining the

terminology the term 'Identification' means proving or fixing before the court

that a person, article or animal is the very same that he or it is alleged,

charged or reputed to be. The term used in police investigation is 'test

identification' i.e., a process by which the identity of persons, things or

animals concerned in the offence under investigation or trial is established

through a test parade. The witness who plays key role in TIP as well as the

case, that he has seen the accused or his articles or weapons during the

commission of the offence, are asked to identify such accused or suspect by

picking them out from among a number of persons or such articles or

animals, or a bunch of articles or animals of the same kind. Identification

Parades are held to satisfy an investigating officer on the bonafides of their

witnesses. There is no provision either in Criminal Procedure Code or the

Indian Evidence Act for holding test identification parades. Of course, Rules
 2

34 and 35 of Criminal Rules of Practice and Circular Orders, 1990 postulates

that how Identification of the person and property has to be conducted. This

is merely a test to determine the memory of the witnesses based on the first

impression about the accused involved in the crime. It is not relevant at the

trial as to whether the witness has identified the accused or not, for the

mere reason that the actual evidence regarding identification by the witness

in the Court alone is relevant under Section 9 of the Indian Evidence Act

1872. In reality, the test of identification of the accused at an identification

parade is a circumstance which would corroborate the identification in the

Court.

The necessity to hold a test of identification parade arises only when

the accused person are not previously known to the witness. The test is to

check the veracity of identification of the accused at the time of occurrence,

without aid from any other source. It is more a test of memory and the

capacity of witnesses to remember what they saw, when they depose in the

Court, at the trial. Identification tests do not constitute substantive evidence

but primarily meant for the purpose of helping the investigating agency to

assure, that it is proceeding on the right path or direction. In other words,

the identification can only be used as correlation of the statements made in

the Court' and to enable the prosecution to cite the witnesses, as

eyewitnesses in the Court proceedings.

 3

II). Therefore now it has to be verified that:

Under what circumstances the TIP has to be conducted?

Is it at the discretion of the Investigating Officer?
or on the direction of the Magistrate concerned?
or at the desire of the accused/suspect?
or on the craving of the Witness?

The role of the witness is very important in establishing the identity

of the accused. One of the methods of establishing the identity is “Test

Identification Parade” required Under Section 9 of Indian Evidence Act.

The idea of the parade is to test the veracity of the witness on the

question of his capability to identify from among several persons, an

unknown person whom the witness had seen in the context of an offence.

It is a decided aspect from catena of judgments that, when a witness

says that he can identify accused persons or others connected with the

case under investigation, the Investigating Officer shall record in the case

diary their description in detail, noting the following points:-

(a) their descriptions;

(b) the extent of prevailing light at the time of the offence

-daylight, moonlight, flashing of torches, burning kerosene,
electric or gas lights, etc.,);
 4

© details of opportunities of seeing the accused at the time of the

offence; anything outstanding in the features or conduct of
the accused which impressed him (identifier);

(d) distance from which he saw the accused; and

(e) the extent of time during which he saw the accused.

So, paramount consideration has to be given to the version of the

witness, because the Investigating Officer shall take steps for conducting

TIP, on his saying so.

At this juncture the relevant point is that :

Is there any bar for the accused / suspect in requiring the same
and whether the Investigating Officer shall proceed to act upon it and
what is the ruling thereon?

In law, identification is considered part of police investigation and the

accused has no right to demand an identification parade at any stage of

investigation. At the trial, however, he has a right to demand that he be

identified and in such cases the court will have to make proper

arrangements to have him mixed up with others before the witness has any

opportunity to see him. But in cases where the accused demands

identification parade during investigation, the police are put in a delicate

position. It might be that the accused is an innocent person who hopes to

get out of the case if a parade is held. It might also be that he has gained
 5

over the witness. Anyway, though the accused has no right in law to demand

an identification parade, if he makes a request for it and the request is

turned down by the police, the lurking suspicion takes root that really the

witnesses have not seen him and would be able to identify him. The whole

purpose of TI parade is to assure the court of the credibility of the witnesses

and this purpose will be really affected if the parade demanded by the

accused is not held. Allahabad High Court in Laljiram Vs. State 1955 (All

671 1955 Cr.L J 1547) has ruled that “Although the accused has no right

to claim identification, if the prosecution turns down his request for

identification, it runs the risk of the veracity of the eyewitnesses being

challenged on that ground”. It is advisable to hold the parade if the accused

holds out a challenge that he could not be identified. For the police it is also

a confirmatory process and they can be sure of their witnesses only after the

holding of an identification Parade on both points; whether the witness is

speaking the truth and also whether he has been gained over by the

accused. Non-holding of Test identification parade though may not be a

ground to vitiate the trial, is undoubtedly a very important feature in

considering the credibility of the witnesses on the point of identification

(Awadh Singh Vs. State 1954 Pat 483 1954 Cr. L.J. 1546). T.I. parade

is basically an investigative procedure of the police. It was held in a case

that ‘In view of the police having full powers during investigation, it would

appear that the Court has no powers, to order T.I. parade at the
 6

investigation stage, i.e., before the case comes to the Court (State Vs.

Raghu Roy Singh 1970 Cr. L.J. 78 at page 80). No rule of law requires

that an oral testimony of a witness should be corroborated by evidence of

identification. Evidence of identification is itself a weak type of evidence. But

where the accused claimed to be known to the witnesses and had applied for

his identification by the witnesses, a denial of that opportunity is an

important point in his favour (Shri Ram Vs. State of UP- 1975 Cr. LJ 240

AIR 1975 SC 175). It was also decided in Jogendran Singh Vs. Punjab

1974 Cr. L.J. 240 that denial of an opportunity to an accused to obtain an

identification proceedings at his own request tantamount to stopping him

from setting up a defence which he wants to set up in a criminal case.

Coming to the other facet--Denial or Refusal to Appear in a TI Parade

by the Accused. If the accused person refuses to appear in a T.I. parade a

presumption may be drawn against him under sec. 114 Evidence Act. [State

Vs. Lavender Singh and another 1973 Cr. L.J. 1023.

III). Who can Hold TEST IDENTIFICATION PARADE?

Is it by the POLICE or PRIVATE PERSON or the MAGISTRATE?

Which is preferable?

The persons who can conceivably hold identification proceedings are

(i) Police, (ii) ordinary citizens and (iii) Magistrate. In theory, there is no
 7

objection to a test identification being held by the Police. But in such an

event, the express or implied statement made by the identifier before them

would be a statement which would immediately be hit by Sec. 162 Cr. P.C.

where under it can be used only for the purpose of contradicting him under

Sec. 145 I.E. Act and cannot at all be used for corroborating him.

Consequently a test identification held by the police nullifies the object of

using the identification for corroborating the testimony given by the identifier

before the Court. It is for this reason that such proceedings should never be

held by the Police.

As to ordinary citizens, there is no legal objection to their holding

identification proceedings even though these are arranged for by the Police.

The Supreme Court has pointed out in Ramkishan Vs. State of Bombay1

that the communication of the fact of identification by the identifier to the

person holding the proceedings is tantamount to a statement made by the

identifier to that person. The note or memo of the proceedings prepared by

the person in question is, therefore, a record of the statement of the

identifying witnesses. Since there is no legal bar to any person recording the

statement of another, any person can conduct test identification. But it is

very essential that the process of identification be carried out under the

exclusive direction and supervision of the persons themselves and the Police

should completely obliterate themselves from the parade before the

1
AIR 1955 SC 104
 8

statements made by the identifiers could fall outside the purview of Sec. 162

Cr.P.C. Hence, identification proceedings may be conducted by punch

witnesses. Nevertheless, the desirability of getting test identification

conducted by ordinary citizens is seriously open to question. It has,

therefore, now become a universal practice that the test identification

parades are never held by the Police or ordinary citizens but by the

Magistrates.

A proper test identification parade held by the Magistrate would have

dispelled many of the doubts and difficulties that be set the case and would

have been of great assistance to the Court in punishing the real offenders.

They are more conversant with the procedure to be followed to ensure their

proper conduct. They can be more relied upon. They are less amenable to

extraneous influences. They can act with great authority over the Police and

the jail staff who have to arrange for the parade. They will also take all

precautions as are required by the High Courts for the proper conduct of the

identification without any defect or flaw in the proceedings. If the

Magistrate, who is empowered to hold such test identification, his

identification memo, is a record of the statement, which the identifier

expressly or impliedly made before him.

 9

IV) HOW AN IDENTIFICATION PARADE HAS TO BE CONDUCTED?

Procedure prescribed in Rule 34 of Criminal Rules of Practice:

Rule 34. Identification Parades:- In conducting identification parades

of suspects, the Magistrate shall observe the following Rules.

(i)(a) The Police should sent a requisition for holding identification

parade by the Magistrate as nominated by the Sessions Judge. On such
requisition, the Magistrate shall conduct the identification parade as
expeditiously as possible.

(b) Where bail application is pending for the release of the accused
and on being informed so by the Police Officer, the Magistrate shall as far as
possible fix a date earlier to the date of arguments on the bail application
and hold the identification parade.

(ii) (a) Wherever possible privacy shall be secured for the parade
away from Public View, and all unauthorized persons should be strictly
excluded from the place;

(b) If Jail Officials are present at Parade, they shall be kept in the
view of the Magistrate all the time and they shall not be allowed access
either to the witnesses who have to be summoned for identification or to the
persons assembled at the parade.

(iii) (a)The witnesses who have been summoned for the parade shall
be kept out of the view of the parade and shall be prevented from seeing
the prisoner before he is paraded with others.

(b) Before a witness is called upon to identify the suspect, he should

be asked whether he admits prior acquaintance with any suspect whom he
proposes to identify. He shall be also asked to state the marks of
identification by which he can identify the suspects.
 10

(c)Each witness shall be fetched by separately. The witness shall be

introduced one by one and on leaving shall not be allowed to communicate
with witness still waiting to see the persons paraded.

(iv) Every circumstance connected with the identification including the

act if any attributed to the person who is identified shall be carefully
recorded by the officer conducting it, whether the accused or any other
person is identified or not, particularly any objection by any suspect to any
in the proceeding shall be recorded.

V) By virtue of observations in catena of Judgments of Apex Court the

further points to be observed are:

(1) Identification parades shall be conducted by a Judicial

Magistrate at the Jail as far as possible. While making
arrangements for the parade, the Police Officers should
completely efface themselves, leaving it to the Magistrate
to conduct the actual identification proceedings.

(2) The Magistrate or other persons conducting the parade should

satisfy himself or themselves that no Police Officer takes part
in the actual identification proceedings, that witnesses are
kept out of view from the premises where the parade is
taking place and that it is not possible to communicate with
them by signals or other communications.

(3) As far as possible, non suspects selected for the parades shall
be of the same age, height, general appearance, built and
complexion as that of the accused in the proportion of a
minimum of 1:5 and a maximum of 1:10. and they must be
 11

made to take their positions along with the persons with whom
they are mingled up in a line.

(4) Witnesses should then be called in, one by one, and they
should be asked to go round the persons assembled for the
parade and point out the accused, if any.

(4) Where a suspect wears any conspicuous garment, the Magistrate

conducting the parade shall, if possible, either arrange for
similar wear to others or induce the suspected person to remove
such garments.

(5) The accused shall be allowed to select his own position and
should be expressly asked if he has any objection to the persons
present with him or the arrangements made. It is desirable to
change the order in which the suspects have been placed at the
parade during the interval between the departure of one witness
and the arrival of another.

(6) Duty of Investigating Officer-The arrested person should be

warned on his arrest that he might be placed in T.I. parade and
as such may take all precaution to cover up his identify before he
is so placed. The idea is that precautionary measures should not
only be taken but should be proved in the court of law.

(7) The Magistrate who conducts the proceedings shall reduce the
same in writing and shall be signed by him. Statements made
by the identifying witnesses during the identification parade
should be recorded in the proceedings. Even if a witness makes
a mistake, it should be recorded. In short, the proceedings
must contain a complete record of all that takes place in the
identification parade.
 12

(8) After the completion of the identification parade and the drawing
up of the proceedings, a certificate must be appended as follows
and signed by the Magistrate who conducted the Test
Identification Parade.

“I, the undersigned, took all necessary precautions, and am satisfied

that no Police Officer was present at any time of the proceedings,
when the parade was held.

(2) No opportunity was given to the witnesses to see or know

about the proceedings of the parade.”

VI) Since the identification parade would naturally be held in the

Jail, the following should also be ensured:-

(1). the Jailor on admission of the suspect should be informed of

the coming identifications;

(2). the Jailor should prohibit any change in the appearance of the
prisoner from that in which he was admitted to jail, e.g., beard not to
be shaven or grown and the same clothes to be worn as at the time of
the entry;

(3). Conducting officer should keep a detailed record of proceedings;

(4). if any person injured and admitted into a hospital is an in-patient,

the Investigating Officer should ascertain in writing from the medical
authority concerned that whether the injured is in a fit condition to
identify his assailants;

(5). if the medical authority certifies that the injured is in a fit

condition to be present at parade and also to identify, the Investigating
Officer should arrange for the identification parade without any loss of
time;
 13

(6). if, for such parade, the injured cannot be taken near a Police
Station, court or such other place, the parade should be held in the
premises of the hospital itself;

(7). if, on the contrary, the medical authority concerned certifies that
the injured is not in a fit condition to be present at a parade and identify
his assailants, the Investigating Officer should wait till such time as may
be necessary and only after the medical authority issues the necessary
certificates, arrange for the parade; and

(8). if the injured is certified to be not fit to be present at a parade

and to identify his assailants and the parade therefore, cannot be held,
evidence should specifically be adduced in the court explaining all the
reasons why the parade could not be held.

VII) IDENTIFICATION BY PHOTOGRAPHS:

(1). Photographs of certain classes of criminals are maintained in

the District Crime Record Bureau and the Police Stations (History Sheets)

Photographs exist also for dossier criminals. Witnesses may be shown the

photographs and asked to identify. In cases where criminals are

identified through photographs, a regular identification parade should also

be held after the apprehension of the accused.

(2). When identification is sought to be made through photographs,

single and individual photographs should not be shown to witnesses.

Photographs of as many persons as possible, among which should be the

suspect’s photograph, should be shown to the witness, who should be asked

to pick out from among them the suspect’s photograph, if it is there.

 14

Note: It shall be ensured that the photograph of the accused who is to be

identified is not published in the print media, nor exhibited in the electronic

media before conducting TIP.

VIII) Several decided case laws to know DO’s and DON’T’s:

The proceedings of an identification parade cannot be used as

evidence against accused persons, unless the Magistrate who recorded it

has been called as a witness.

When delay is inordinate, it is a question which must be answered by

reference to all the circumstances of the case. The nature of the offence,

the state of mind of the witness at the particular time when the offence

was committed (terror, excitement), and the duration in which the witness

had the opportunity to see the accused are tacts to be particularly taken

into account. The obvious reason for rejecting the evidence of identification

on the ground of inordinate delay is that ordinarily the human mind does

not register an impression of a face seen only once for a brief moment for a

long time thereafter unless that face has some special feature which help

to fix its memory on the mind of the witness. Hence the delay in holding

the T.I. Parade should be avoided as far as possible.

Sometime an accused person prior to his identification succeeds in

securing bail on giving an under taking that he would take precautions to

keep himself concealed from the prosecution witnesses and that he would
 15

not raise the plea that they had seen him before the identification parade.

Such an undertaking never acts as estoppels and hence is worthless (AIR

1956 ALL 122). In order to escape punishment a criminal may get himself

released on such an undertaking and then go and show himself to the

witnesses. If he does so he commits a criminal offence for any identification

of him made subsequently becomes perfectly useless. Hence, it is the duty

of the Police to oppose the bail of the accused prior to identification. As

pointed out by the Allahabad High Court in Asarif Vs. State (A.I.R. 1961

ALL 153) "the Magistrate and the courts of Appeals should be careful not to

enlarge arrested persons on bail whose identification is desired though it is

their duty to see that no undue delay in holding the T.I. Parade is

permitted. The question of bail should be considered only after the test has

been accomplished". As contemplated in Sec. 437 Cr. P.C. the mere fact

that an accused is required for being identified by witnesses during

investigation shall not be sufficient ground for refusing to grant bail, if he is

otherwise entitled to be released on bail. The 1.0. should also press

absconding of the accused, gravity of charge, danger of accused tampering

with the evidence during investigation as other grounds for the refusal of

the bail so that the T.I. parade could also be arranged by the Magistrate

during the investigation.

 16

Allahabad High Court in Laljiram Vs. State2 has ruled that 'Although

the accused has no right to claim identification, if the prosecution turns

down his request for identification, it runs the risk of the veracity of the

eyewitnesses being challenged on that ground'.

It is advisable to hold the parade if the accused holds out a challenge

that he could not be identified. For the police it is also a confirmatory

process and they can be sure of their witnesses only after the holding of an

identification Parade on both points whether the witness is speaking the

truth and also whether he has been gained over by the accused. Non-holding

of Test identification parade, though may not be a ground to vitiate the trial,

is undoubtedly a very important feature in considering the credibility of the

witnesses on the point of identification 3 .

Their Lordships of Apex Court have repeatedly stressed the need for

holding the test identification parade as soon. as possible, after the arrest of

the accused. The reason for this is, to eliminate any possibility on the part of

the accused to allege that witnesses had opportunity to see the accused

before the parade takes place. This makes the prosecution to be vigilant, to

avoid or refute the allegation of the accused. However, there may be cases

of delay, beyond the control on the part of investigating agency and if such

delay can be explained to the satisfaction of the Court, .it is not fatal to the

2
1955 Cr.L J 1547
3
Awadh Singh Vs. State, 1954 Pat 483
 17

prosecution case. In Subash v. State of Uttar Pradesh4, there was delay

of three weeks, after the arrest of the accused in holding the test

identification parade and there was a gap of four months between the date

of occurrence and the date of holding the identification parade and more so,

no descriptive particulars were given at the time of registration of FIR,

evidence was rejected, as the witnesses failed to give the descriptive

features when the face of the accused for fresh in their memory. More so,

there was no corroborative evidence. It was held, if the delay in holding the

test identification parade for which no valid explanation is given, the

evidence cannot be acted upon5. If the deep impression on the minds of the

witnesses cannot be erased, when they had the occasion to see the culprit, it

can be acted upon, as the crime itself is capable of creating such

impression6.

In Rajesh Govind Jagesha V. state of Maharashtra 7 the accused

had a beard and long hair, at the time of lodging the FIR yet the witnesses

identified at the parade. The court has no hesitation to reject the evidence of

identification. Had two or more persons resembling the accused as

mentioned in the FIR been included, it would have been otherwise. In Daya

Singh’s8 case the test identification parade was held after 8 years of the

occurrence of crime as the accused could not be arrested for seven and half
4
AIR 1987 SC P. 1222
5
State of A.P. v. Dr.M.V. Ramana Reddy, AIR SC P. 2154
6
Brij Mohan and ors. V. State of Rajastha, AIR SC P.578
7
1999 AIR SC P. 4246
8
2001 AIR SC P.936
 18

years for want of details regarding the accused, and the test being

conducted after six months of the arrest of the accused, the evidence was

held admissible, as the eye witnesses had enduring impression in the

identity in the mind and memory of the witnesses as the son and daughter-

in -law were the victims. Thus ever-lasting deep impressions even after

delay are not fatal. If the identification evidence is held reliable and truthful,

it can be admitted even without corroboration.

In Anil Kumars v. State of U.P 9 case a mere lapse of a few days was

not enough to erase the facial impression of the accused from the memory

of father or mother who saw the accused person killing their son. The earlier

ruling, on deep impression created by the crime itself, was held sufficient to

admit the evidence of identification.

In Pramod Mandal v. Sate of Bihar10, the Supreme Court ruled that

it was neither possible nor prudent to lay down any invariable rule to as to

the period within which the test identification parade must be held. If any

new such rule is made prescribing the period, it would only benefit the

professional criminals, in whose cases the arrests are delayed due to police

not having clear clues about the identity of the accused. The court also ruled

that no specific number of witnesses can be prescribed to correctly identify

the accused. This is consistent with the rule that evidence shall be assessed

on the basis of quality and not on the basis of quantity. In other words, it is

9
2003 AIR SC P.977
10
(2004) 13 SCC 150
 19

within the discretionary power of the Court to decide these issues depending

upon the facts and circumstances of each case.

These rulings will be of Considerable help to Judges, Prosecutors and

Investigating Agencies to conduct the tests required without delay, fairly and

without any motives to implicate an innocent person as well as in accordance

with due procedure.

Mere suspicion, however grave, cannot replace the weight attached

to the evidence

$$$
 IDENTIFICATION PARADE OF PROPERTY

Identification parade of property plays significant role to connect

recovered property with stolen property. If recovered property is not

identified as stolen property, the case will go away.

The identification of property helps the investigating agency to

ensure that they are proceeding on the right direction. The evidence of

test identification is admissible under Section 9 of the Evidence Act and

it can be used only to corroborate the substantive evidence given by the

witnesses in Court regarding identification of the accused/property in

Court and that the earliest identification made by the witnesses at the

test identification parade, by itself has no independent value 1. Generally,

test identification parade of property arises only in theft and property

related cases.

Rule 32 of old Criminal Rules of Practice 1966 deals with

identification of parade of person. But, old rules of Practice does not

prescribe identification parade of property. To cover that gap, the topic of

identification of property and procedure are incorporated in Rule 35 of

Criminal rules of Practice 1990. It is extracted hereunder:

35. Identification of property:-- (1) Identification parades of

properties shall be held in the Court of the Magistrate where the
properties are lodged ;
(2) Each item of property shall be put up separately for the

1 S.T.Shinde Vs. State of Maharashtra

 parade. It shall be mixed up with four or five similar objects.
(3) Before calling upon the witnesses to identify the property, he
shall be asked to state the identification marks of his property.
Witnesses shall be called in one after the other and on leaving
shall not be allowed to communicate with the witnesses not yet
called in.

The above provision mandates that identification parade shall be

held in the court of Magistrate where properties are lodged. In fact, no

investigating officer follows this mandate. They are conducting

identification of property in the presence of VRO or government servant

or independent person who do not relate to the case. It is nothing but

violation of mandatory procedure laid down under above provision. There

is no land mark authority to discard the report of identification parade of

property, on the ground that identification was not held in the presence

of Magistrate. So, impliedly, it indicates that identification may be held in

the presence of any person, but he must be neutral.

When there are more properties than one, each item of property

shall be put up separately, for the parade. As per above provision, each

property shall be mixed up with four or five similar objects. It is

requirement of law that similar articles are to be mixed for identification,

otherwise it is not proper 2. But, it is not required that identical property

should be mixed3.

2 (1990) All Cri LR 696(700)

31980 Cri LJ 571 (574 ) = 1980 ALL Cri R 119
 Where sufficient number of articles of similar type was not mixed

up in the test identification parade, the evidence of identification loses all

its importance4. However, only two or three similar articles are mixed

with articles to be identified, still the identification of property is not

disbelieved5. If the witnesses are credible and they have been subjected

to a fair test, merely because the similar articles mixed were only two or

three in number is not a ground to discard identification6.

Before calling upon the witnesses to identify the property, he shall

be asked to state the identification marks of his property. In some times,

property to be identified do not have special identification marks. But, on

that ground, identification can not be discarded7.

Witnesses shall be called in one after the other and on leaving shall

not be allowed to communicate with the witnesses not yet called in.

Mere minor irregularities while conducting identification parade of

property, shall not be discarded in toto. However, mere failure to hold

identification of recovered property during investigation will not render

evidence of recovery unworthy of acceptance 8. It may be noted here that

the identification in open court itself, can not be disregarded.

Suggestion:

I humbly submit that as per clause 1 of rule 35, identification of

4 AIR 1984 All Cri LR 528(531) (DB)(MP)

5 1982 All Cri R 253
6 AIR 1961 ALL 614 state Vs Ram Bilas and others
7 1997 Cri LJ 534(543)
8 1998 Cri LJ 3879 (3882) = 1998 (3) Mah LJ 625 (Bom)
property shall be held in the Court of Magistrate where properties are

lodged. Generally, properties are lodged before jurisdictional Court of

Magistrate. So, as per rule 35(1), during course of investigation,

identification shall be held in the presence of concerned Magistrate who

has territorial jurisdiction to try that case. If rule 32(1) is strictly

followed, the Magistrate in whose presence identification of property is

conducted, will try the case. In other words, during course of

investigation, identification parade of property shall be held in the

presence of concerned Magistrate who is going to try the case after

taking cognizance. It may cause prejudice to the defence. It is somewhat

against the principles of natural justice. So, I fell the above provision

needs to be amended. I acknowledge that inspite of my best efforts I

could not trace any authority or commentary on this aspect.

Y.GOPLA KRISHNA,
PRINCIPAL JUNIOR CIVIL JUDGE,
ANAKAPALLE.
 DYING DECLARATION

The maxim “Nemo moriturus praesumitur mentire” is basis for

''dying declaration'', which means '' a man will not meet his maker with a

lie in his mouth''. A dying declaration is called as '' Leterm Mortem''.

The word '' Leterm Mortem'' means '' Words said before death''.

Section 32(1) of the Indian Evidence Act, explore the concept of

Dying Declaration. It is an exception to hearsay evidence because if this

evidence is not considered very purpose of the justice will be forfeited in

certain situations when there may not be any other witness to the crime

except the person who has since died. The victim, a prominent witness to

the occurrence, being dead in the absence of any other witness,

exclusion of the dying declaration may lead to the acquittal of the

accused resulting in miscarriage of justice.

It may be mentioned here that the law requires that the evidence in

a court of justice should be given on oath. Recording dying declaration is

an exemption for it.

OBJECT/REASONS FOR INTRODUCING CONCEPT OF DYING

DECLARATION IS THAT,

a) the man who is on death bed is solemn and serene,

b) A person who is about to die would not lie, as truth sits on his lips,

c) dying declarations are statements made in extrimity when the

person is at the point of death; when every motive for falsehood is

silenced and when every hope of this world is gone and when his mind is

induced by most powerful spiritual considerations to speak the truth (R.

Vs. Woodcock case (1789).

WHY DYING DECLARATION SHOULD BE RECORDED:

When a victim is exclusive eye witness, his dying declaration shall

be recorded to protect the truth for proper administration of justice 1.

WHO ARE COMPETENT TO MAKE DYING DECLARATION:

Every person is compentent to make dying declaration, except the

person making it is imbecile or is of tender age.

WHAT ARE THE FORMS OF DYING DECLARATION ?

a) verbal

b) written (a sucide note of the deceased if it is in the nature of dying

declaration and is admissible in the evidence 2.)

c) Signs and gestures (Queen Vs. Abdulla (1885) 7 ALL 385 Full

Bench).

d) If a person is not capable of speaking or writing he can make a

gesture in the form of yes or no by nodding and even such type of dying

declaration is valid.

1
P.V.Radha Krishna Vs. State of Karnataka in Criminal Appeal
1018/2002 decided by Hon'ble Apex Court on 25-7-2003.
2
State Vs Maregowda 2002 RCR (Criminal) 376
 It is significant to note that the dying declaration must have been

recorded in the exact words in which it is spoken by the declarant. Where

the dying declaration is recorded in the language of the declarant, it

acquires added strength and reliablity.

WHO IS COMPETENT TO RECORD DYING DECLARATION ?

Dying declaration may be recorded by anybody. If dying declaration

is recorded by Magistrate, it gives much weight than others.

WHAT IS THE PROPER METHOD FOR RECORDING A DYING

DECLARATION BY A PERSON HE BE A MAGISTRATE OR A POLICE

OFFICER OR DOCTOR OR ANY OTHER PERSON3 ?

1) he must be satisfied that the declarant is in senses.

2) if the person recording the declaration is so satisfied, he should

ascertained whether the declarant is in a postition to speak coherently.

3) after above said satisfaction, he may proceed to put general

questions to the declarant as to what had happened.

4) the person recording the declaration should also record the

questions asked to the declarant. As far as possible, the putting of

leading questions should be avoided. The statement should be in

question and answer form.

5) what is thus recorded may, at the end, be read over to the

declarant, if the circumstances do not warrant otherwise.

3
HARI RAM V/S STATE AIR 1965 Raj 130
6) If it is possible the signature or thumb impression should be

obtained or appended on the statement.

7) if the declarant is in senses but unable to speak coherently, the

recording person may put short questions and the answer given by the

gestures may be noted. It is imperative, however, that the gestures

given should find an appropriate mention. Here the interepretation as to

gestrues is left to the court.

8) the recording person should see that there is no chance of

prompting or tutoring of declarant by person near him and no replies

should be recorded based on such prompting. The possibility of

prompting should be entirely excluded.

APART FROM ABOVE, FOLLOWING PRECAUTIONS TO BE TAKEN BY

THE MAGISTRATE WHILE RECORDING DYING DELCARATION 4:

(1) While recording a Dying Declaration, the Magistrate shall keep in view

the fact that the object of such declaration is to get from the declarant

the cause of death or the circumstances of the transaction which resulted

in death.

(2) Before taking down the declaration, the Magistrate shall disclose his

identify and also ask the declarant whether he is mentally capable of

making a declaration. He should also put simple questions to elicit

answer from the declarant with a view to knowing his state of mind and

should record the questions and answers signs and gestures together

4
Rule 33 of Criminal Rules of Practice
with his own conclusion in the matter. He should also obtain whenever

possible a certificate from the Medical Officer as to the mental condition

of the declarant.

(3) The declaration should be taken down in the words of the declarant

as for as possible. The Magistrate should try to obtain from the declarant

particulars necessary for identification of the accused. Every question put

to the declarant and every answer or sign or gesture made by him in

reply shall be recorded.

(4) After the statement is recorded, it shall be read over to the declarant

and his signature obtained thereon, if possible, and then the Magistrate

shall sign the statement.

WHAT IS THE METHOD OF RECORDING DYING DECLARATION ?

No doubt, Indian Evidence Act does not prescribe any proforma for

recording dying declaration. But, best form of dying declaration is in the

form of Question and Answer form.

FOR THE ADMISSIBILITY OF A DYING DECLARATION, THE

FOLLOWING CONDINTIONS HAVE TO BE SATISFIED:

(1) The declarant must have died.

(when maker of purported dying declaration survives the same is

not statement under Section 32(1) of the Indian Evidence Act, 1872

but it is a statement in terms of Section 164 of Cr.P.C. It can be used

under Section 157 of the Evidence Act for the purpose of

 corroboration and under Section 155 for the purpose of

contradiction5.)

(2) Injuries must have caused the death.

(3) the Declaration must be as to the cause of the death or

as to any of the circumstances which resulted in the death.

(In Pakala Narayanaswamy Vs. King Emperor 6, letter of deceased

reveals that ''he is proceeding to Berhampur as he was invited to collect

the money''. The privy Council was of the opinion that this statement

related to the circumstances that he was proceeding to that spot where

he was killed, that he was invited by a particular person or that he was

going to meet the particular person and all these constituted

circumstances that brought about this death and are therefore

admissible as dying declaration.)

(4) the cause of the death of the declarant must be in question.

(5) the declaration must be completed.

(6) the declarant must be in fit condition.

(7) dying declaration must have been made soon after alleged incident,

so that it may not be coloured by impressions received by third persons.

TEST OF RELIABILITY:

veracity of dying declaration being dependant on all the relevant

5
Ramprasad Vs. State of Maharashtra (1999 (5) SCC 30), Sunil Kumar &
Ors. v. State of Madhya Pradesh (JT 1997 (2) SC 1), Gentela
Vijayavardhan Rao Vs. State of A.P. (1996 (6) Supreme 356) and State of
UP Vs. Veer Singh (2004 Cri.L.J. 3835)
6
AIR 1937 PC 47
attended circumstances, the standard of test will vary according to the

facts and circumstances of each case. The circumstances relevant for the

test reliability of a dying declaration are:

1) opportunity to the dying man for observation. For example, whether

there was sufficient light if the crime was committed at night. Whether

he had clear opportunity to identify the assailant

2) whether declarant possess memory, consciousness or intelligence

sufficient to understand what he was doing and saying.

3) whether the statement was made at earliest opportunity. Whether

tutoring by interested parties could be ruled out.

4) Whether the statement was clear, coherent and voluntary and

conscious throught out.

CERTIFICATE OF DOCTOR:

While recording dying declaration, doctor shall certify that declarant

is in conscious, coherent and fit state of mind. However, the Magistrate

or the person who records the statement must be satisfied himself that

the declarant is in conscious, coherent and fit state of mind. Unless,he

satisfied he shall not record statement.

Admissibility of dying declaration which is not certified by doctor,

the same is now settled by Constitution Bench, Judgment of Hon'ble

Supreme Court in Laxman Vs. State of Maharashtra reported in 2002 (2)

ALD (CRI) 505. wherein the Hon'ble Apex Court over ruled earlier

Judgments and held that a dying declaration which does not contain a
certificate of doctor cannot be rejected on that sole ground so long as the

person recording dying declaration is sastified that the declarant is in a

fit mental condition to make the dying declaration.

WHETHER CORROBORATION IS REQUIRED FOR DYING

DECLARATION ?

(i) There is neither rule of law nor of prudence that dying

declaration cannot be acted upon without corroboration7.

(ii) If the Court is satisfied that the dying declaration is true and

voluntary it can base conviction on it, without corroboration8.

(iii) The Court has to scrutinize the dying declaration carefully

and must ensure that the declaration is not the result of

tutoring, prompting or imagination. The deceased had an

opportunity to observe and identify the assailants and was in a

fit state to make the declaration9.

(iv) Where dying declaration is suspicious, it should not be acted

upon without corroborative evidence10.

(v) Where the deceased was unconscious and could never make

7
Munna Raja and anr. v. The State of Madhya Pradesh, 1976 (2) SCR
764
8
See State of Uttar Pradesh v. Ram Sagar Yadav and others, 1985 (1)
RCR (Crl.) 600 (SC): AIR 1985 SC 416 and Ramavati Devi v. State of
Bihar, AIR 1983 SC 164
9
K.Ramachandra Reddy and anr. v. The Public Prosecutor, AIR 1976 SC
1994
10
See Rasheed Beg v. State of Madhya Pradesh, 1974 (4) SCC 264
 any dying declaration the evidence with regard to it is to be

rejected11.

(vi) A dying declaration which suffers from infirmity cannot form

the basis of conviction12.

(vii) Merely because a dying declaration does contain the details

as to the occurrence, it is not to be rejected13.

(viii) Equally, merely because it is a brief statement, it is not to

be discarded. On the contrary, the shortness of the statement

itself guarantees truth14.

(ix) Normally, the Court in order to satisfy whether deceased

was in a fit mental condition to make the dying declaration look

up to the medical opinion. But where the eye-witness said that

the deceased was in a fit and conscious state to make the dying

declaration, the medical opinion cannot prevail15.

(x) Where the prosecution version differs from the version as

given in the dying declaration, the said declaration cannot be

acted upon16.

WHERE PART OF DYING DECLARATION IS FALSE:

11
Kaka Singh v. State of M.P., AIR 1982 SC 1021
12
Ram Manorath and others v. State of U.P., 1981 (2) SCC 654
13
State of Maharashtra v. Krishnamurthi Laxmipati Naidu, AIR 1981 SC
617
14
Surajdeo Oza and others v. State of Bihar, AIR 1979 SC 1505
15
Nanahau Ram and anr. vs. State of Madhya Pradesh, AIR 1988 SC 912
16
State of U.P. vs. Madan Mohan and others, AIR 1989 SC 1519
 Where a part of dying declaration of deceased is found to be false

court can reject that portion if it can be separated and acted upon the

rest, provided the false portion is not likely to destroy the truth content

in dying declaration17.

MULTIPLE OR SUCCESSIVE DYING DECLARATION AND ITS

EVIDENCIARY VALUE:

Where the successive declarations are made, all must be identical.

Where there are inconsistence among successive declation, it is not

possible to pick out one statment where in the accused is implicated and

to base a conviction on the sole basis of such dying declaration 18.

When in two dying declarations one recorded by Police and

second by Magistrate, there were glaring contradictions and other

circumstances created doubt in truthfulness of version, it could not be

acted upon to base conviction19.

WHEN FIRST INFORMATION REPORT CAN BE TREATED AS DYING

DECLARATION ?

There is no legal impediment to accept FIR as dying declaration.

First information report got recorded by the police has been taken as

dying declaration, when the person did not survive to get his dying

17
Godhu & Anr vs State Of Rajasthan 1974 AIR 2188, 1975 SCR (1) 906
and Nand Kumar v. state of Maharastra 1987 (3) BomCR 139, (1987) 89
BOMLR 370
18
Kamala Vs. State of Punjab AIR 1993 SC 374 = 1993 (1) SCC 1
19
CHINNAMMA v. STATE OF KERALA 2004(2) SUPREME 251
declaration recorded20.

When patient remained admitted in hospital for sufficient days i.e.

for 8 days, FIR cannot be treated as dying declaration 21.

TAKING AID/HELP OF INTERPRETER FOR RECORDING DYING

DECLARATION:

If language of declarant is not known to Magistrate/Doctor/Police

officer or if declarant is a deaf and dumb, they may take help of

interpreter who knows language of declarant or who knows gestures of

deaf and dumb declarant, for recording of dying declaration. After

recording the same, they shall take acknowledgment/endorsement of

interpreter and his signature on dying declaration that he interpreted

what declarant told /made gestures to them, without any deviation.

In rural and remote areas, deaf and dumb persons may not be

trained and except their family members, others may not know exact

expressions and gestures made by the deaf and dumb declarant. In such

cases, the Magistrate bound to take assistance of their family members

as interpreter.

While recording dying declaration with the help of interpreters,

there may be chance to add or supress material facts. To prevent such

type of act, recording of entire dying declaration in elctronic device will

solve the issue and clear the doubts on recording of dying declration with

20
Munnu Raja & Anr's case stated supra
21
State of Punjab v. Kikar Singh, 2002 (30 RCR (Criminal) 568 (P & H)
(DB)
the aid of interpreter. More over, it will be helpful to the trial Judge to

appreciate dying declaration.

WHETHER EXAMINATION OF MAGISTRATE, WHO RECORDED

DYING DECLARATION, IS REQUIRED FOR FORMAL PROOF ?

When a Magistrate, discharging his official functions, such as records the

statement of witnesses under 164 CPC, such statement is a public

document and it does not require any formal proof 22. Similalrly,

Magistrate, while discharging his functions, such as recording of dying

declaration, such declaration is a public document and it does not

required formal proof.

SUGGESTION:

My humble suggestion is that if dying declaration is permitted to

record in electronic device, it will be helpful to the trial Judges at the time

of appreciating the evidence. Espicially, when recording officer takes

assistance interpretor, recording of dying declaration in electronic device

is very helpful to the trial courts for just conclusion. With this suggestion I

conculde my paper presentation.

Y. GOPALA KRISHNA,
PRINCIPAL JUNIOR CIVIL JUDGE,
ANAKAPALLE.

22
Guruvindapalli Annarao and 3 others Vs. State of Andhra Pradesh,
2003 (2) ALD (CRI) 60 = 2003 (1) ALT (CRI) 536 = 2003 CRI LJ 3253
 1
BAIL, ANTICIPATORY BAIL, MANDATORY BAIL, BAIL AFTER CONVICTION

WORKSHOP-I – TO BE HELD

ON

SATURDAY, 18TH NOVEMBER 2017

TOPICS

I. BAIL

II. ANTICIPATORY BAIL

III. MANDATORY BAIL

IV. BAIL AFTER CONVICTION

Prepared By:

Sri A.Vara Prasada Rao,

Sessions Judge, Mahila Court,
Visakhapatnam
 2
BAIL, ANTICIPATORY BAIL, MANDATORY BAIL, BAIL AFTER CONVICTION

BAIL, ANTICIPATORY BAIL, MANDATORY BAIL & BAIL AFTER

CONVICTION

ARTICLE PRESENTED BY

Sri A.VARA PRASADA RAO

SESSIONS JUDGE, MAHILA COURT
VISAKHAPATNAM

I deem it as unique privilege, to present this article on the

topics “BAIL, ANTICIPATORY BAIL,

MANDATORY BAIL & BAIL AFTER
CONVICTION”. The subject is exhaustive and in a few
minutes its entire gamut cannot be presented. I will make an
endeavor to broadly present some key points which may be of
some practical help in discharging your judicial functions.
 3
BAIL, ANTICIPATORY BAIL, MANDATORY BAIL, BAIL AFTER CONVICTION

BAIL, ANTICIPATORY BAIL, MANDATORY BAIL &

BAIL AFTER CONVICTION

“A major problem of human society is to combine that degree of liberty without which

law is tyranny with that degree of law without which liberty becomes license.”

Article-21 of Constitution of India states: No person shall be deprived of his life and

liberty except according to procedure established by Law. Dwaraka Prasad Agarwal (D) by

Lrs. Vs. B.D. Agarwal and Others [(2003) 6 SCC 230]

PREFACE

Before dwelling upon topic on “Bails”, a brief note on arrest is made. The word “ARREST” is

not defined in Code of Criminal Procedure, 1973. But, Section 46 of Cr.P.C explains.” Under this

section, a police officer is given power to use all means necessary to effect the arrest in case

of such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest. A

legal dictionary, it conveys the meaning that “to deprive one of his liberty by virtue of legal

authority. It gives another meaning: “to stop”; and also conveys meaning: “to seize”.

Thus, arrest means “A sizure or forcible restraint; an exercise of the power to deprive

a person of his or her liberty; the taking or keeping of a person in custody by legal authority,

especially, in response to a criminal charge.” However, if we go through various rulings, the

meaning of arrest can succinctly be understood as contemplated under Section 348 of IPC. As

explained by the Hon’ble Supreme Court in Joginder Kumar Vs. State of Uttar Pradesh

[1994 SCC (4) 260] and D.K. Basu Vs. State of West Bangal [1997 (1) SCC 416] .

Consequent upon Hon’ble Supreme Court’s decision in Joginder Kumar Vs.State of

Uttar Pradesh [1994 SCC (4) 260] and D.K. Basu Vs State of West Bengal [1997 (1) SCC

416], Government of India enacted Section 50-A making it obligatory on the part of the police

officer to inform the friend or relative of the arrested person about his arrest and also to

make an entry in the register maintained by the police. This was done to ensure transparency

and accountability in arrest.

Introduction
 4
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The heart, soul and the philosophy of ‘Bail or Jail’ was articulated in a beautiful manner

by His Lordship Sri.Jusitce V.R.Krishna Iyer in a decision reported in AIR 1978 S C 429=1978

0 BBCJ (SC) 43=1978 0 CrLJ 502 between Gudikanti Narasimhulu and Others Vs. Public

Prosecutor, High Court of Andhra Pradesh:

“"Bail or jail ?"- At the pre-trial or post- conviction stage-belongs to the blurred area

of the criminal justice system and largely binges on the hunch of the bench, otherwise called

judicial discretion. The Code is cryptic on this topic and the court prefers to be tacit, be the

order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of

the public treasury, all of which insist that a developed jurisprudence of bail is integral to a

socially sensitized judicial process. A Chamber judge in this summit court I have to deal with

this uncanalised case flow, ad hoc response to the docket being the flockering candle light. So

it is desirable that the subject is disposed of on basic principle, not improvised brevity draped

or discretion. Personal liberty, deprived when bail is refused, is too precious a value of our

constitutional system recognised under Art. 21 that the curial power to negate it is a great

trust exercisable, not casually but judicially, with lively concern for the cost to the individual

and the community. To glamorize impressionistic orders as discretionary may, on occasions,

make a litigative gamble decisive of a funda- mental right. After all, personal liberty of an

accused or convict is fundamental, suffering lawful eclipse only in terms of 'procedure

established by law'. The last four words of Art. 21 are the life of that human right.

2. The doctrine of Police Power, constitutionally validates punitive processes for the

maintenance of public order, security of the State, national integrity and the interest of the

public generally. Even so, having regard to the solemn issue involved, deprivation of personal

freedom, ephemeral or enduring, must be founded on the most serious considerations relevant

to the welfare objectives of society, specified in the Constitution.

3. What, then, is 'judicial discretion' in this bail context ? In the elegant words of

Benjamin Cardozo:

"The judge, even when he is free, is still not wholly free. He is not to innovate at

pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of

goodness. He is to draw his inspiration from consecrated principles. He is not to yield to

spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion

informed by tradition, methodized by analogy, disciplined. by system, and subordinated to 'the

primordial necessity of order in the social life. Wide enough in all conscience is the, field of

discretion that remains."

The Nature of the Judicial Process-Yale University Press, (1921)].

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Even so it is useful to notice the tart terms of Lord Camden that 'the discretion of a

judge is the law of tyrants: it is always unknown, it is different in different men; it is casual,

and depends upon constitution, temper and passion. In the best, it is oftentimes caprice; in the

worst, it is every vice, folly and passion to which human nature is liable . . ." (I Bovu. Law Dict.,

Rawles' III Revision p. 885-quoted in Judicial Discretion-National College of the State

Judiciary, Reno, Nevada p. 14).

4. Some jurists have regarded the term 'judicial discretion' as a misnomer. Nevertheless,

the vesting of discretion is the unspoken but inescapable, silent command of our judicial system,

and those who exercise it will remember that

"discretion, when applied to a court of justice, means sound discretion guided by law. It

must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful, but legal

and regular." (Attributed to Lord Mansfield, Tingley v. Bolby, 14 N.W. 145)

"An appeal to a judge's discretion is an appeal to his judicial conscience. The discretion

must be exercised, not in opposition to, but in accordance with, established principles of law."

It is a basic principle of criminal law that an individual is presumed to be innocent until

proven guilty. While the criminal justice system wants to ensure that accused persons will

attend trials and be present to receive any punishment inflicted if found guilty of the crime for

which she/he is charged, the presumption of innocence should place significant restrictions on

the measures the government can take to ensure the presence of the accused for such

purposes. Bail and bail procedures attempt to address some of the issues that arise from this

question of what to do with accused person who have been accused of committing an offence

but who are awaiting trial and thus still legally innocent.

Bailable and Non-Bailable Offences:

Chapter XXXIII of the Code of Criminal Procedure, 1973 (CrPC) deals with procedure and

powers of the court to grant bail. Sections 436 and 437 CrPC pertain to bail in cases involving

bailable and non-bailable offences. Section 436 of CrPC designates that for certain “bailable

offences”, accused persons have a right to be released on bail. For “non-bailable offences”, the

competent court has discretion in determining whether or not to grant bail to the accused;

Under Sec.437 Cr.P.C and for still other more serious non-bailable offences, the court may
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never grant bail, (Sec.437(1)(i),(ii) Cr.P.C). Bailable offences for which bail is a right are

generally less serious offences than non-bailable ones, for which bail is either discretionary or

not permitted. When making a determination as to whether or not to grant bail, a court should

take into account such factors as:

a) Nature and seriousness of the offence

b) The character of the evidence, circumstances which are peculiar to the accused

c) A reasonable possibility of the presence of the accused not being secured at the trial

d) Reasonable apprehension of witnesses being tampered with, the larger interests of the

public or the State.” State v.Jagjit Singh (Capt.), 1962 AIR 253; Gurcharan Singh v. State

(Delhi Admn), AIR 1978 S C 179.

The Hon’ble Supreme Court has held that, in general, bail should be the norm and

continued custody the exceptional circumstance. State of Rajasthan, Jaipur Vs. Balchand,

1977 AIR 2447. In the category of non-bailable offences where bail is not permitted, courts

may not release someone on bail Under Section 437 (1) (I) CrPC “if there appear reasonable

grounds for believing that [the accused] has been guilty of an offence punishable with death or

imprisonment for life.” Similarly, unless it is in the interest of justice or another special reason,

courts cannot grant bail to a person accused of a cognizable offence if that person had been

previously convicted of an offence punishable with death, imprisonment for life or imprisonment

for seven years or more or twice before had been convicted of “a non-bailable and cognizable

offence, Under Section 437 (1) (ii) CrPC. The CrPC provides exceptions for both of these

situations and provides discretion to courts to release on bail, children under sixteen years of

age, women, or the “sick or infirm” for any offence under Section 437(1) CrPC.

In the case of Arnesh Kumar ...vs... State of Bihar 1, Mr. Justice

Chandramauli Kr. Prasad and Mr. Justice Pinaki Chandra Ghose were pleased to hold :

“ We are of the opinion that if the provisions of Sec. 41, Cr.P.C which authorises the

police officer to arrest an accused without an order from a Magistrate and without a

1 2014 Law suit (SC) 518

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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 Sec. 41 Cr.P.C for effecting arrest be discouraged and

discontinued.”

Our endeavour in this judgment is to ensure the police officers do not arrest accused

unnecessarily and magistrates do not authorize 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 Sec. 498-A of the IPC is registered but to satisfy themselves about

the necessity for arrest under the parameters laid down above flowing from Section 41,

Cr.P.C.

2 All police officers be provided with a check list containing specified sub-clauses

under Sec. 41 (1) b) (ii);

3 The police officer shall forward the check list duly filled and furnish the

reasons and materials which necessitated the arrest, while forwarding/producing the

accused before the Magistrate for further detention;

4. The Magistrate will authorizing 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 authorizes 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 Cr.P.C be served on the

accused within two weeks from the date of institution of the case, which may be
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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.

9. Authorizing detention without recording reasons as aforesaid by the judicial

Magistrate concerned shall be liable for departmental action by the appropriate High

Court.”

CONDITIONAL BAIL

If for whatever reason a court decides to release on bail an individual who has

committed an offense under Chapters VI, XVI, or XVII of the Indian Penal Code which are

punishable by at least seven years imprisonment, the court may impose any conditions deemed

necessary to ensure the accused’s attendance and restraint from committing other offences.

The Court has wide discretion in imposing such conditions, so long as the conditions do not

violate any fundamental rights of the accused, undermine the application of bail altogether, or

force an accused to assist in a police investigation.

ANTICIPATORY BAIL

Anticipatory bail refers to an application for bail by a person who “has reason to believe” she/he

will be arrested for allegedly committing a non-bailable offence prior to such arrest. As per

Sec.438(1) CrPC, A High Court or Court of Sessions can accept such an application and has

discretion to order for release of the person on bail in the event that person is arrested. The

apprehension of the applicant for anticipatory bail that she/he will be arrested must be based

on “reasonable grounds” and not simply “fear” or “vague apprehension.” The applicant must

disclose “specific events and facts” that shows reasonableness of belief that she/he will be
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arrested, and order of the court for anticipatory bail must restrict itself to such a specific

reason for anticipated arrest. Hon’ble Supreme Court asserted in Balchand Jain that courts

should grant anticipatory bail only in “exceptional circumstances.” (Balchand Jain v. State of

Madhya Pradesh, 1977 AIR 366) Hon’ble Supreme Court later articulated in Gurbaksh Singh

that the requisite courts have “wide discretion” in granting anticipatory bail and should not

“impose any unfair or unreasonable limitation on the individual’s right to obtain an order of

anticipatory bail.” (Gurbaksh Singh Sibbia Vs. State of Punjab, 1980 AIR 1932) . In

Gurbaksh Singh, the Court further held that a court should consider in determining whether to

grant anticipatory bail, such as: “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.’” If a court does in

fact grant this anticipatory bail, the court can impose conditions on release, such as requiring

that the person be available for police interrogation, that the person not to threaten or induce

anyone to refrain from disclosing facts in the case, that the person not to leave the country, or

any necessary conditions as provided for under the conditional bail Under Section 437 CrPC.

PROCEDURE FOR GETTING AN ANTICIPATORY BAIL

For getting the anticipatory bail the person may approach the High Court or the Sessions Court.

Then there will be a hearing scheduled by the court so that the Court can hear their version of

the case. Although there is no provision in Section 438 for issuing notice to the Public

Prosecutor (lawyer who appears on behalf of the Government) and hearing by the Court but as

held by the Supreme Court in Gurbaksh Singh Sibbia Vs. State of Punjab AIR 1980 SC

1632, “a notice should be issued to the Public Prosecutor of the Government before passing

final order granting anticipatory bail. Therefore, if there are circumstances justifying ex parte

interim order, the Court may pass such order, issuing notice to the Public Prosecutor by making

it returnable and may pass final order after hearing both the sides.” After the 2005

Amendment, it is compulsory for the Court to hear the Public Prosecutor. Many a times it
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happens that the District and Sessions Court denies the Anticipatory Bail, then the person may

apply for Bail in the High Court and the High Court generally grants the Anticipatory Bail.

The Court has a power to put some conditions and restrictions while granting anticipatory bail.

They may be:

* A condition that the person shall make himself available for interrogation by a police

officer as and when required;

* 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;

* A condition that the person shall not leave India without the previous permission of the

Court;

* Such other condition as may be imposed under Sub-Section (3) of Section 437, as if the

bail were granted under that Section.

DISTINCTION BETWEEN ORDINARY BAIL AND ANTICIPATORY BAIL

In Gurbaksh Singh Sibbia Vs. State of Punjab, Hon’ble Supreme Court held:

“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 of offences in respect of which the order is

issued. In other words, unlike a post-arrest order or bail, it is a pre-arrest legal process which

directs that if the person in whose favor it is issued is thereafter arrested on the accusation in

respect of which the direction is issued, he shall be released on bail.”

CANCELLATION OF ANTICIPATORY BAIL

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Though there is no specific provision in Section 439 regarding cancellation of bail, it is implicit

that the Court which grants anticipatory bail is entitled upon appropriate consideration to

cancel or recall that order, State of Maharashtra Vs. Vishwas Shripati Patil (1978) 80

BOMLR 432. Anticipatory Bail is a special privilege granted to the person apprehending arrest

and it should not be abused in any manner. Even in absence of an express provision for

cancellation of bail in the Code, the power of cancellation springs from the overriding inherent

powers of the High Court and can be invoked in exceptional cases only when the High Court is

satisfied that the ends of justice will be defeated unless the accused is committed to custody,

Ratilal Bhanji Vs. Asst. Collector of Customs AIR 1967 SC 1639.

MANDATORY BAIL

Regardless of the offence, a person must be released on bail if the investigation of the crime

for which the person is accused takes longer than 90 days when the offence is one punishable

by death, life imprisonment, or imprisonment for 10 years or more; or 60 days for all other

cases. Sec.167 CrPC In the same vein, for any non-bailable offence, a person should be released

on bail if the trial of the accused lasts longer than 60 days past the original trial date.

Similarly in the interim period between the conclusion of a trial and sentencing, the Court shall

release an accused on bond if the Court has reasonable grounds to believe the accused is not

guilty.

In Moti Ram v. State of M.P., AIR 1978 SC 1594, the Hon’ble Supreme Court lamented

the fact that an Indigent accused may not be able to secure her/his freedom pending the

outcome of a case, while others can do so because of their ability to pay. In Hussainara

Khatoon & Ors v. State of Bihar, AIR 1979 S C 1360, the Hon’ble Supreme Court found

that a court should release an accused who is unable to pay on a personal bond if that individual

has “roots in society. (The Code of Criminal Procedure (Amendment) Act, 2005, sec. 35

amending sec. 436 of CrPC) The Hoble Supreme Court in Hussainara Khatoon & Ors Vs. State

of Bihar laid out the following considerations, which ought to be evaluated in making bail
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decisions: “

1) The length of [an accused’s] residence in the community.

2) His employment status, history and his financial condition,

3) His family ties and relationships,

4) His reputation, character and monetary condition,

5) His prior criminal record...

6) Identity of responsible members of the community [to] vouch for his

reliability.

7) The nature of the offence charged and the apparent probability of

conviction and the likely sentence in so far as these factors are relevant to the risk of non-

appearance, and

8) Any other factors indicating the ties of the accused to the community or bearing on the

risk of willful failure to appear.”

SPECIAL POWERS OF HIGH COURTS OR COURTS OF SESSION

All High Courts and Courts of Session have broad powers with respect to bail that allow

them to order any person in custody to be released on bail, add any conditions in line with

section 437 discussed above, under Sec 439(1) (a) CrPC, or modify/rescind any conditions

imposed on a bail order under Sec. 439 (1) (b) CrPC. These Courts also have the power to order

that any person released on bail in this manner be re-arrested and put back in custody (Sec

439(2) Cr.P.C).

Interim Bail Petition

In Prahalad vs NCT, 2001 (Cri LJ) 1730 (SC) in para (11), pages (1733) & (1734) Hon’ble

Supreme Court declares the law: “We would reiterate that in cases where the offence is

punishable with death or imprisonment for life which is triable exclusively by a court of

Sessions, the Magistrate may, in his wisdom, refrain to exercise the powers of granting the bail
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and refer the accused to approach the higher courts unless he is fully satisfied that there is

no reasonable ground for believing that the accused has been guilty of an offence

punishable with death or imprisonment for life” . (Emphasis Supplied) Thus, Section 437CrPC

is also the sphere of magisterial powers to grant or refuse bail. (3) of Section 438 of CrPC

relates to the High Court’s and the Sessions Court’s power to grant anticipatory bail.

That’s bail preceding to or in anticipation of arrest; and it becomes effective from the moment

of arrest. Pending the application for anticipatory bail, the court may issue an interim order

of bail as dealt with in Section 438(1) substituted by Act 25/2005. Final orders shall be passed

after notice to the Public Prosecutor and the superintendent of police and on hearing them. If

the court rejects the accused’s plea for interim bail or his application for anticipatory bail, the

police are free to arrest him without warrant.

In Siddharam Vs State, (2011) 1 SCC 694, Hon’ble Supreme Court has clarified the law as

to anticipatory bail of all confusion holding certain of its previous rulings, limiting the period of

such bail as well as forcing the accused to seek regular bail at the expiry of the period, as per

incurium. (4) of Section 439 CrPC is on the High Court’s and the Sessions Court’s power to

release the accused on bail in custody. Evident as it is that Sections 436, 437 and 439 are

repository of powers of the court to release the accused in custody on bail. That’s post-arrest.

As seen above, the newly substituted Section 438 expressly provides for interim bail pending

disposal of the plea for anticipatory bail. It’s a welcome provision as the accused faces the

threat of arrest before his application for the bail is decided. Also, it’s consistent with the

concept of fundamental right to life and liberty under Article 21 of the Constitution of India.

Interim bail may be granted when the court is satisfied that the object of the accusation

against accused is to injure his reputation and to humiliate him. It’s an effective check against

unscrupulous exercise of the arrest power by the police.

(5) An important situation lies post-arrest. That’s the time gap between the police taking the

accused into custody, producing him before the Magistrate and the Magistrate granting remand.
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May be, for a simple non-bailable offence or for an offence punishable with death or

imprisonment for life. A specific example: The police officer adds the charge of attempt to

murder punishable u/s 307 IPC to a simple case of voluntarily causing hurt u/s 323 or 324 IPC.

In such a case, the Magistrate may be reluctant to look into the records and apply Section

437(2) for the reason the offence is triable exclusively by a Court of Session. Leaving alone

Section 307 IPC, if the police adds Sec.506(2) IPC (Criminal intimidation), usually the

Magistrate remands the accused to custody, posting his application for bail for consideration to

a later date to hear the prosecution. In the situation, the accused is forced to remain in

detention/judicial custody. It’s a grey area in the sense that generally courts keep off their

hands when the investigation is at the threshold. The object is to ensure independent /

impartial process of investigation. Taking advantage of this, the police whimsically add penal

provisions joining hands with vengeful complainants / private parties to humiliate the accused by

sending him to jail. Instances in this regard are quite common. (6) No express provision for

interim bail in Sections 437 or 439 CrPC. Of course Section 437(2) hints at such a power, but

not in explicit terms. Even to exercise the power thereunder, the Magistrate may order notice

to the prosecution in which case the accused under arrest can’t avoid detention in jail. Thus, the

interim bail regime becomes relevant even in post-arrest matters, leaving alone the interim bail

provision in Section 438 CrPC. Life bereft of liberty is without honour and dignity. It losses all

significance. And the life itself will not be worth living. That’s the reason why liberty is held the

very quintessence of a civilized existence. Without the right to life with liberty, no other right

can be enjoyed. Siddharam Vs State, (2011) 1 SCC 694.

In Sukhwant Singh Vs State, (2009) 7 SCC 559: 2009 (3) SCC (Cri) 487 , Hon’ble Supreme

Court filled the gap in Sections 437 and 439 holding that in the power to grant bail is

inherent in the power to order interim bail, which means the court hearing a plea for regular

bail has inherent power to order interim bail, pending final disposal of the bail application.

Hon’ble Supreme Court relied on one of its earlier rulings, Lal Kamlendra Vs State, (2009) 4

SCC 437 : (2009) 2 SCC (Cri) 330.

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In Para (2) and (3) of Sukwant’s case referred in above decision, “….following the decision of

this Court in Kamlendra Pratap Singh Vs State of U.P. (2009) 4 SCC 437 : (2009) 2 SCC

(Cri) 330 we reiterate that a court hearing a regular bail application has got inherent power to

grant interim bail pending final disposal of the bail application. In our opinion, this is the proper

view in view of Article 21 of the Constitution of India which protects the life and liberty of

every person When a person applies for regular bail then the court concerned ordinarily lists

that application after a few days so that it can look into the case diary which has to be

obtained from the police authorities and in the meantime the applicant has to go to jail. Even if

the applicant is released on bail thereafter, his reputation may be tarnished irreparably in

society. The reputation of a person is his valuable asset, and is a facet of his right under

Article 21 of the Constitution vide. Hence, we are of the opinion that in the power to grant bail

there is inherent power in the court concerned to grant interim bail to a person pending final

disposal of the bail application.” (8) Section 167 Cr.P.C mandates the investigating officer to

transmit the accused under arrest to the nearest Judicial Magistrate, if two conditions are

satisfied. One, he can’t complete the investigation within 24 hours. Two, “there are grounds

for believing that the accusation or information is well founded”. With the accused, he has to

submit a copy of the entries in his diary to the Magistrate. Needless to pinpoint that before

issuing an order of remand to custody, the Magistrate is not to be swayed by the penal

provisions under which the investigating officer booked the accused. The Magistrate must look

into the records and satisfy himself, primafacie, with the nature of the accusation. The

Magistrate is repository of the rights of the citizens. The vital power to remand an accused

citizen to custody is entrusted to him, not even to a judge of the Supreme Court or High Court.

If the power is exercised disregarding the mandate of law, the right to life and liberty will be

in danger of extinction. And in the process, the Magistrate who’s the protector of the rights of

the citizens will become the predator of the rights. Deepak Bajaj Vs State of Maharashtra

(9) Overall, wherever it’s expedient, the Magistrate/court shouldn’t hesitate to exercise the

power to issue interim bail. Such exercise of the power will effectively deter abuse of the
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process of criminal law for objects extraneous to its cause.”

BAIL AFTER CONVICTION

Section 389 (3) CrPC deals with bail after conviction, in other words ‘suspense of sentence of

imprisonment only’ imposed by Trial court. Suspension means to take or withdraw the sentence

for the time being. Ashok Kumar Vs. Union of India AIR 1991 SC 1792; State of Punjab

Vs. Joginder Singh AIR 1990 SC 1396. Under Section 389 (1) & (2) of CrPC the convicted

person can obtain the bail from Appellate Court after filing Criminal Appeal. In order to invoke

Section 389 (3) before the Trial/convicting Court the petitioner shall comply following

conditions:

a) The court must be a convicting Court.

b) The accused must be convicted by the court.

c) The convict imposed sentenced to imprisonment not exceeding 3 years.

d) The convict expresses his intent to prefer appeal before the Appellate Court.

e) The convict must be on Bail on the date of judgment.

f) There should be right of appeal, Mayurum Suybrahmanyam Vs. CBI 2006 (SCC) 752.

g) The Trial Court may refuse to grant bail if there are special reasons. The court may

release convict for a specific period of time which is sufficient to prefer appeal and obtain

order from the Court. So long as the convict person is released on bail, he shall be deemed to be

under suspension of sentence of imprisonment imposed against him.

h) The fine if any imposed shall be paid by the convicted person in order to secure

suspension of sentence of imprisonment.

The differences between Sub-Sections 1 & 3 of Section 389

1) The Sub-Section 1 can be invoked before the Appellate Court, whereas the Sub-Section

3 is to be invoked before the Convicting Court or the Court which passed the conviction and

sentenced imprisonment.
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2. The Sub-Section 1 deals with suspension in the first instance and then deals with

release on bail on personal bond or with sureties. Sub-Section 1 does not prescribe that the

accused must be on bail; whereas in order to invoke Sub-Section 3, the accused must be on bail

on the date of judgment. Under Sub-Section 1 the bail is granted suspending sentence pending

disposal of Criminal Appeal. Whereas Sub-section 3 will be in operation for a limited period of

time, generally 30 days. Sub-Section 3 gives an opportunity to the convicted person to prefer

appeal and during that period he need not serve the sentence of imprisonment awarded against

him.

In Narender Singh Vs. State of Punjab Vide Criminal Appeal No.686/2014 arising out

of SLP (Crl) 9547/2013, Hon’ble Supreme Court has emphasized the need of sentencing

guidelines, stating in other countries, there are sentencing guidelines while awarding a specific

sentence. But in India, we have no such guidelines or sentencing policy.

In Soman Vs. State of Kerala reported in 2013 (11) SC Cases 382 giving punishment

to the wrong doer is at the heart of Criminal Justice Delivery System, but in our country, it is

weakest part of the Administration of Criminal Justice. There is no legislation Judiciary laid

down guidelines to assist in meeting out ‘just punishment’ to the accused basing on trial he is

held guilty of charges. In 2003, Malimath Committee laid down guidelines on sentencing policy.

In Angana Vs. State of Rajasthan 2009 (3) Supreme Court Cases 367 , it was held

that the facts and circumstances of each case will cover exercise of Judicial Discretion and will

consider the application filed under Section 389 CrPC. In Santan Pandi Vs.State reported in

1981 Crl. Law Journal at paragraph 15, Full Bench of Madras High Court had considered all the

aspects that are to be taken into account while suspending the sentence and for grant of bail

pending appeal. Other case law: Kashmiri Singh Vs. State of Punjab reported AIR 1977 SC

2147=1999 Crl. Law Jounal 861 Paragraph 15;

A long time may be taken to decide the appeal and the appellant has got strong and good

points to argue, may be grounds for grant of bail by suspending sentence of imprisonment. Dadu

Vs. State of Maharastra (2000) 8 SCC 437; Kishori Lal Vs. Rupa reported in 2004
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(7) SC 638=AIR 2005 SC 1481; State of Haryana Vs. Haswar reported in (2004) 6

SCC 175; Lalsaikhunte Vs. Nirmal Sinha & Ors. (2007) 9 SCC 330; Navjot Singh Sidhu

Vs. State of Punjab and Another reported in AIR 2007 SC 1003; Sanjay Dutt Vs.

State of Maharastra Tr CBI, Bombay (2009) 5 SCC 787.

The appellate Court has every power under Section 389 (1) to suspend not only the

sentence but also conviction recorded by the Trial Court 2006 Crl. Law Journal 2055.

The Appellate Court has to objectively assess the matter and record reasons for its

decisions that the case warrants suspension of execution of sentence and grant of bail.

CANCELLATION OF BAIL

In a decision reported in AIR 1984 SC 372= 1984 0 BBCJ (SC) 4= 1984 1 Crimes

(SC) 334=1984 0 CrlJ 160=1983 2 Scale 818 between Bhagirathsinha Judeja Vs. State of

Gujarat, by Hon’ble Sri Justice D.A.Desai and Hon’ble Sri Justice R.B. Misra. Their Lordships

Held: Bail is a Rule and Jail is an exception . Their Lordships were pleased to point out the

circumstances under which the bail can be cancelled.

“In our opinion, the learned Judge appears to have misdirected himself while examining

the question of directing cancellation of bail by interfering with a discretionary order made by

the learned Sessions Judge. One could have appreciated the anxiety of the learned Judge of

the High Court that in the circumstances found by him that the victim attacked was a social and

political worker and therefore the accused should not be, granted bail but we fail to appreciate

how that circumstance should be considered so overriding as to permit interference with a

discretionary order of the learned Sessions Judge granting bail. The High Court completely

overlooked the fact that it was not for it to decide whether the bail should be granted but the

application before it was for cancellation of the bail. Very cogent and overwhelming

circumstances are necessary for an order seeking cancellation of the bail. And the trend today

is towards granting bail, because it is now well-settled by a catena of decisions of this Court

that the power to grant bail is not to be exercised as if the punishment before trial is being

imposed. The only material considerations in such a situation are whether the accused would be
 19
BAIL, ANTICIPATORY BAIL, MANDATORY BAIL, BAIL AFTER CONVICTION

readily available for his trial and whether he is likely to abuse the discretion granted ill his

favour by tampering with evidence. The order made by the High Court is conspicuous by its

silence on these two relevant considerations. It is for these reasons that we consider in the

interest of justice a compelling necessity to interfere with the order made by the High Court. ”

In Hussain and ANR Vs. Union of India in Crl. Appeal No.509 of 2017 arising out of

Special Leave Petition ((Crl.) No.4437 of 2016 , Hon’ble Supreme Court was pleased to direct

all the Subordinate Courts:

(i) The High Courts may issue directions to subordinate courts that –

(a) Bail applications be disposed of normally within one week;

(b) Magisterial trials, where accused are in custody, be normally concluded within six months

and sessions trials where accused are in custody be normally concluded within two years;

(c) Efforts be made to dispose of all cases which are five years old by the end of the year;

(d) As a supplement to Section 436A, but consistent with the spirit thereof, if an undertrial

has completed period of custody in excess of the sentence likely to be awarded if conviction is

recorded such undertrial must be released on personal bond. Such an assessment must be made

by the concerned trial courts from time to time;

(e) The above timelines may be the touchstone for assessment of judicial performance in annual

confidential reports.

(emphasis added)

(ii) The High Courts are requested to ensure that bail applications filed before them are

decided as far as possible within one month and criminal appeals where accused are in custody

for more than five years are concluded at the earliest;

(iii) The High Courts may prepare, issue and monitor appropriate action plans for the

subordinate courts;

(iv) The High Courts may monitor steps for speedy investigation and trials on administrative and
 20
BAIL, ANTICIPATORY BAIL, MANDATORY BAIL, BAIL AFTER CONVICTION

judicial side from time to time;

(v) The High Courts may take such stringent measures as may be found necessary in the light of

judgment of this Court in Ex. Captain Harish Uppal (supra) .

28. Accordingly, we request the Chief Justices of all High Courts to forthwith take appropriate

steps consistent with the directions of this Court in Hussain Ara Khatoon (1995) 5 SCC 326)

(supra), Akhtari Bi (Smt.) (supra), Noor Mohammed (supra), Thana Singh (supra), S.C. Legal Aid

Committee (supra), Imtiaz Ahmad (supra), Ex. Captain Harish Uppal (supra) and Resolution of

Chief Justices’ Conference and observations hereinabove and to have appropriate monitoring

mechanism in place on the administrative side as well as on the judicial side for speeding up

disposal of cases of under trials pending in subordinate courts and appeals pending in the High

Courts.
 PAPER PRESENTATION  ON 

JUDICIAL CUSTODY AND POLICE CUSTODY – RECENT TRENDS

J.V.V.Satyanarayana Murthy
II Addl.Junior Civil Judge, Anakapalle

The   word   Remand   /   Custody   is   not   defined   in   the   code   of   criminal 

procedure.  It is often the case when the police arrest a person in suspicion of a crime, 
they are unable to complete the investigation in 24 hours.  At this juncture, when they 
require the accused or suspect to be kept away from society at large for the protection  
of   the   society,   of   the   accused   or   for   the   purpose   of   ensuring   his   availability   for 
investigation, they may produce him before a magistrate who may allow the suspect to 
be held in the custody of the police or the judiciary. 
    The  arrested    person  should  be  produced  before  the    Magistrate 
before    expiry     of     24    hours    from    his    arrest  excluding  the  time  of 
journey  as  per section 57 of  the  Code of Criminal   Procedure.    Section   50 
of    the    Code   of    Criminal Procedure  mandates   that   the   police   officer 
should    tell   the  arrested   person    about    the    offence  for     which  he  has 
been  arrested  and  if  he  is  arrested  for    bailable    offence,  then  he  can  be 
released    on    bail.    Further    Section    50A    of      the    Code    of  Criminal 
Procedure  mandates  that  it  is the duty   of   magistrate before   whom  the 
arrested     person   is   produced,     to   satisfy himself   that  police   informed 
arrested  person  of   his  right    to  inform  his  relative  or   next  friend  about 
his  arrest  and  place  of  arrest.  The    Magistrate    should   invariably    note 
down  time  of production  of  arrested  person  and  put  the  question to  him 
in  regards     to      verify    the     compliance     of             article    22    of     the 
constitution before ordering remand of  the arrested person.
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     5   the  Supreme         Court      held       that 
during      first     production,   the Magistrate  is  under  duty  and  obligation 
to  make  the  accused fully   aware  about  of  his  right  to  consult and  to  be 
defended  by  a  legal  practitioner    and,  in  case    he  has  no    means  to 
engage a lawyer  of  his  choice,  that  one  would be  provided  to  him from 
legal  aid  at the expense of  the  state.  Even if  the accused does not  ask  for 
a  lawyer    or    remain   silent,  it  is  the    Constitutional  duty  of  the  court  to 
provide  him  with  a  lawyer  and    any  failure  to  discharge  suc h   duty,   it 
would  amount  to  dereliction  of  duty  and      would      make      the 
magistrate     concerned    liable     to departmental proceedings.
  It   is  the   duty   of  a  Magistrate   to  inquire   whether arrested 
person was given  a ny   ill­treatment  by  police  as instructed in  para  3(1)  of 
chapter  I  of  The  Criminal  Manual.  This  direction  was  also    issued    in  the 
case   of   Shila  Barse  ­vs­  State  of Maharashtra  AIR  1983 Supreme 
Court 378.
         

  If     any    complaint     of       ill­treatment     is     made     by  arrested 

person,  the  Magistrate  shall  then  and  there  examine his  body  with  his 
consent    and    shall    record  the  result  of    his  examination.        If    the 
arrested    person  refuses  to  permit  such  examination,  Magistrate  shall 
record such refusal  and the reason  thereof.     If  the  Magistrate  finds  that 
there    is  a  reason  to  suspect  that  the  allegation   is  well     founded,  he 
shall  at  once record  the  complaint   and  cause  the  arrested  person  to 
be  examined      by      a      Medical       Officer     or         registered        Medical 
Practitioner    as  provided  in  section  54  of    Cr.P.C.  as  observed  in  case  of 
Union  of  India  through  M.P.  Suresh  ­vs­  State  of  Maharashtra 
2003  All     M    R    (Cri.)  1016    and  shall    make  a  report to  the  Session 
Judge.  The  Session  Judge  should  arrange magisterial    investigation    into 
the    complaint      through    such  Judicial    Officer  as  he  may  deem    most 
convenient    unless    he  is  satisfied  by  Magistrate's  report  under  sub­
paragraph  (1)  above  that  the  adequate  investigation  is  proceeding.     If 
in  result    of  investigation  allegation  made  found   to  be  true,  the 
statement recorded  of   arrested  person be  taken  as  a  complaint  to  take 
cognizance.      However  there   is  no   bar  to  take  cognizance  on the  basis 
of   complaint  lodge  by  the  Magistrate  upon investigation.
The   scheme   of   the   provisions   contained   in   Sections   167,  209 and 309 is as  

under. Section 167 provides for the detention of an  accused during pendency of investigation. 

Section   209   provides   the     detention   of   an   accused   during   pendency   of   Commitment 

Proceedings  and    Section    309(2)    provides    for    detention   of    an    accused   during  

pendency of trial or inquiry. 

Guidelines regarding Remand :

1)   The period of 24 hours begins to run the moment a person is  arrested by any police 
officer.
2)   Fifteen days of time for remand is to be counted from the first  date of production of 
accused before court. 
3)  If the accused is juvenile, his age is to be ascertained and if he finds that he is juvenile, 
then he be directed to be produced  before Juvenile Justice Board. 
4)   A person held in judicial custody can, if circumstances justify, be transferred to police 
custody or vice versa within a period of  15   days   referred   to   in   section   167(2)   of   the  
Cr.   P.C.. (Kasanapu   Ramreddy..Vs..   State   of   A.P.   &   others   AIR  1994 SC 1447). 
 The arrest of a person is a condition precedent for taking him  into   judicial   custody.  
(Directorate   of   Enforcement..Vs..Deepak  Mahajan AIR 1994 SC 1775). 
Remand to police custody :

1)  It   is   plain   that   those   15   days   being   to   run   immediately  after   the 
accused   is   produced   before   the   Magistrate   in   accordance with sub section (1) of 167 
Cr.P.C. Police can not, therefore, be granted custody of the accused after the lapse of the first 
15 days. (1982 Cri. L J 2366). 
2)  When a Magistrate remands a person to police custody, he   has to confirm to 
three conditions:   (i) such custody should not be made   of   more   than   15   days   on   the  
whole;   (ii)   reasons   should   be recorded for passing of such an order: (iii) A copy of the  
order should be sent to  the Chief Judicial Magistrate. 
3)  Before   passing   an   order   of   remanding   the   accused   to   police     custody,   the 
Magistrate should first be satisfied that the accusation against him is well founded. For this 
purpose he should not only go through the case diary and the statements of witnesses recorded 
u/s 161,   but also he  should  scrutinize   the   record   and   decide   whether   the formalities  
prescribed have been followed. (1973 Cri. L J. 869: 1973  Mad L J 157). 

Police Custody in Bailable offense: 

Bail   in   bailable   offenses   is   right   of   accused. However,  police custody can  
be claimed by I.O in bailable offense subject to condition that if the accused fails to furnish 
surety, then only police custody can be claimed. But as soon as accused furnishes surety, the 
Magistrate has to pass an order of release of accused forthwith.
a) AIR 2009 S.C.1341 Yaman ..Vs.. State of Rajasthan.
b) AIR 2009 SC 1362.
Magistrate has no power to discharge accused in the cases triable by the court  of 
sessions :

In   the   case   of  Ajay   kumar   Verma   ..Vs..   State   of   Rajasthan (AIR 2013 SC 
633) the Hon'ble Apex Court was held that the Magistrate has no power to discharge accused 
in session triable cases. 

The   difference   between   judicial   and   police   custody   apart   from   the 
difference in custodian authority, is that under police custody, the suspect 
may be interrogated by the police but under judicial custody interrogation 
is not permitted except in exceptional circumstances, police custody starts  
when a person is taken into custody by the police and his rights are read  
out to him along with the explanation for reasons for custody but judicial 
custody starts when a judge orders for judicial custody. The first thing that 
happens   to   a   suspect   on   arrest   is   that   he   is   taken   into   police   custody, 
following   which   he   is   taken   before   a   magistrate   and   he   may   either   be 
remanded to judicial custody or be sent back into police custody. He may  
also gain temporary relief by bail.
RIGHTS OF ACCUSED
The   rights   of   the   accused   begin   from   the   time   of   his   arrest.   The  
Constitution  of India  under  Article  22 provides for  the  protection  of the  
arrested   person   to  the  extent   that   he   has   a   right   to  be   informed   of   the 
reason for arrest and he must be produced before the nearest magistrate  
within a period of 24 hours. Article 22 (1) also provides that he shall be  
entitled   to   consult   and   to   be   defended   by   a   legal   practitioner   of   his 
choice[i]. Section 50, Cr. P.C. which is a corollary to Article 22, Clause (1)  
and   (5)   of   the   Constitution   of   India,   enacts,   that   the   persons   arrested  
should be informed of the ground of arrest, and of right to bail.
After the legal arrest of a person, his rights are protected through the 
time period for which he may be held in custody. For the custody to be a  
legal,   a   person   may   not   be   held   in   custody   for   more   than   15   days.   A 
magistrate   must   be   convinced   that   that   there   are   exceptional 
circumstances present to extend this custody for a maximum of 60­90 days  
depending   in   the   nature   of   the   crime   being   investigated.   A   cautious 
reading of S.167(1) of the code of criminal procedure makes it clear that 
the officer in charge of the police station or the investigating officer (if he 
is  not  below the   rank   of  sub­   inspector)  can  ask  for  remand  only  when  
there   are   grounds   to   believe   that   the   accusation   or   information   is   well  
founded and it appears that the investigation cannot be completed within 
the period of twenty­four hours as specified under Section 57. 
Hence,   Magistrate’s   power   to   give   remand   is   not   mechanical   and 
adequate grounds must subsist if Magistrate wants to exercise his power of 
remand. The same was held in Raj Pal Singh v. State of U.P[1983 CriLJ  
1009]   that   the   remand   order   sheet   need   not   look   like,   a   judgment 
delivered after full trial but application of mind must be evident.
It is the right of the accused that he is brought before a magistrate  
within 24 hours of arrest, excluding the time taken in transportation from 
the   place   of   custody   to   the   magistrate.   If   no   judicial   magistrate   is 
immediately   available   then   he   may   be   taken   before   an   executive 
magistrate   who   can   remand   him   to   custody   for   a   maximum   of   7   days 
following which he must be taken before a judicial magistrate. In Central 
Bureau of Investigation, Special Investigation Cell­I, New Delhi v. Anupam  
J.Kulkarni [AIR 1992 SC 1768] the question regarding arrest & detention  
in custody was dealt with it was held that the magistrate under S.167(2)  
can authorise the detention of the accused in such custody as he thinks fit 
but it should not exceed fifteen days in the whole. Therefore the custody 
initially should not exceed fifteen days in the whole. The custody can be  
police custody or judicial custody as the magistrate thinks fit.

The words “such custody” and “for a term not exceeding fifteen days 
in   whole”   are   very   significant.   On   a   combined   reading   of   S.167(2)   and  
(2A)   it   emerges   that   the   Judicial   Magistrate   to   whom   the   Executive 
Magistrate has forwarded the arrested accused can order detention in such  
custody namely police custody or judicial custody under S.167(2) for the  
rest of the first fifteen days after deducting the period of detention order  
by   the   Executive   Magistrate.   The   detention   thereafter   could   only   be   in 
judicial custody. 
There are also specific rights during arrest and custody, governing the  
right of medically unfit prisoners. These are that women accused of any  
offence, if arrested so soon after child birth that they cannot at once be  
taken before the Magistrate without personal suffering and risk to health  
should not ordinarily be removed until they are in a proper condition to 
travel.
Custody of accused – either police or judicial from time to time:­ 

The Judicial Magistrate can in the first instance authorise the detention of the accused 
in such custody i.e. either police or judicial from time to time but the total period of detention 
cannot   exceed   fifteen   days   in   the   whole.   The   Privy   Council   in   Emperor   Vs.   Khwaia   Nazir 
Ahmad, AIR 1945 PC 18 : 1945­46 Cri LJ 413 that under the Code there is a statutory right on  
the part of the police to investigate the circumstances of an alleged cognizable crime and that 
the functions of the judiciary and the police are complementary and not overlapping in this 
regard.   On   larger   principle   also,   it   seems   apt   that   whilst   the   accused   person   must   be 
guaranteed a fair investigation and a judicial trial thereafter, yet equally the police, which has 
a   statutory   duty   to   investigate,   is   not   hampered   or   obstructed   in   the   delicate   task   of 
unravelling   crime   at   the   threshold   stage   of   the   investigation.   Therefore,   the   interpretative 
approach to these provisions is to strike a true balance in the larger social interest between a 
competent and incisive investigation into serious crimes by the police, on the one hand and the 
guaranteed   right   of   the   citizen   to   personal   liberty   under   a   reasonable   and   fair   procedure 
established by law, on the other. 

Executive Magistrate is empowered to authorise accused to detain only for a week:­

 If the arrested accused is produced before the Executive Magistrate he is empowered to 
authorise the detention in such custody either police or judicial only for a week, in the same 
manner namely by one or more orders but after one week he should  transmit him to  the 
nearest Judicial Magistrate along with the records.

After   the   expiry   of   the   first   period   of   15   days,   the   further   remand   during   the 
period of investigation can only be in judicial custody:­ 
 When the arrested accused is so transmitted, the Judicial Magistrate for the remaining 
period, that is to say excluding one week or the number of days of detention ordered by the 
Executive Magistrate, may authorise further detention within that period of first fifteen days to 
such custody either police or judicial. After the expiry of the first period of fifteen days,  further 
remand during the period of investigation can only be in judicial custody. There cannot be any  
detention in the police custody after the expiry of first fifteen days even in a case where some 
more offences either serious or otherwise committed by him in the same transaction come to 
light at a later stage.

What is the exception to this general rule?

But this bar does not apply if the same arrested accused is involved in a different case 
arising out of a different transaction. Even if he is in judicial custody in connection with the  
investigation of the earlier case he can formally be arrested regarding his involvement in the  
different case and associate him with the investigation of that other case and the Magistrate  
can act as provided under Section 167 (2) of Cr.P.C the proviso and can remand him to such 
custody as mentioned therein during the first period of fifteen days thereafter in accordance 
with the proviso.

If the investigation is not completed within the period of ninety days or sixty days 
then the accused has to be released on bail :­ 

If the investigation is not completed within the period of ninety days or sixty days then 
the accused has to be released on bail as provided under the proviso to Section 167 (2) of  
Cr.P.C. The period of ninety days or sixty days has to be computed from the date of detention  
as per the orders of the Magistrate and not from the date of arrest by the police.

How to compute the first period of 15 days?

 The   first   period   of   fifteen   days   mentioned   in   Section   167   (2)   of   Cr.P.C   has   to   be 
computed from the date of such detention and after the expiry of the period of first fifteen  
days it should be only judicial custody. In Chaganti Satynarayana and Ors. Vs. State of Andhra 
Pradesh, [1986] 3 S.C.C.141 the Hon’ble Supreme Court examined the scope of Section 167 
(2) provisos (a)(i) and (ii) and held that the period of fifteen days, ninety days or sixty days 
prescribed therein are to be computed from the date of remand of the accused and not from 
the date of his arrest under Section 57 and that remand to police custody cannot be beyond  
the period of fifteen days and further remand must be to judicial custody. Though the point 
that   precisely   arose   before   the   Apex   Court   was   whether   the   period   of   remand   prescribed 
should be computed from the date of remand or from the date of arrest under Section 57, 
there are certain observations throwing some light on the scope of the nature of custody after  
the expiry of the first remand of fifteen days and when the proviso comes into operation.   In 
Chaganti Satyanarayan’s case it was held that “It, therefore, stands to reason that the total 
period of 90 days or 60 days can begin to run from the date of order of remand.” Therefore the 
first period of detention should be computed from the date of order of remand.
 Person   arrested   and   produced   before   Magistrate­Remand   to   police
custody   after   initial   period   of   15   days­Whether   legal.
It  was observed   under sub­section (2)  of  Section 167   as  well as proviso   (1) of  sub 
­section (2) of Section 309 relate to the powers of remand of a magistrate, though under  
different situations, the two provisions call for a harmonious reading insofar as the periods of 
remand   are   concerned.   It   would,   therefore,   follow   that   the   words   “15   days   in   the   whole 
“occurring in sub­section (2) of Section 167 would be tantamount to a period of “15 days at a  
time” but subject to the condition that if the accused is to be remanded to police custody, the  
remand should be for such period as is commensurate with the requirements of a case with  
provision for further extensions for restricted periods,if need be, but in no case should the total 
period of remand to police custody exceeds 15 days. Where an accused is placed in police 
custody for the maximum period of 15 days allowed underlaw either pursuant to a single 
order of remand or to more than one order, when the remand is restricted on each occasion to  
a lesser number of days , further detention of the accused, if warranted, has to be necessarily  
to judicial custody and not otherwise. The legislature having provided for an accused being  
placed under police custody under orders of remand for effective investigation of cases, at the 
same care to be taken to see that the interests of the accused are not jeopardised by his being  
placed   under   police   custody   beyond   a   total   period   of   15   days,   under   any   circumstances, 
irrespective of the gravity of the offence or the serious nature of the case. These observations 
make it clear that if an accused is detained in police custody, the maximum period during 
which he can be kept in such custody is only fifteen days either pursuant to a single order or 
more than one when such orders are for lesser number of days but on the whole such custody 
cannot be beyond fifteen days and further remand to facilitate the investigation can only be by 
detention of the accused in judicial custody. Chaganti Satynarayana’s case; Central Bureau Of 
Investigation vs. Anupam J. Kulkarni,1992 AIR 1768.

When formal arrest is necessary?

As seen from Central Bureau Of Investigation vs. Anupam J. Kulkarni,1992 AIR 1768, if 
during the investigation his complicity in more serious offences during the same occurrence is 
disclosed that does not authorise the police to ask for police custody for a further period after 
the expiry of the first fifteen days. If that is permitted then the police can go on adding some 
offence or the other of a serious nature at various stages and seek further detention in police  
custody repeatedly, this would defeat the very object underlying Section 167. However, the 
Apex   court  clarified   that  this  limitation  shall  not  apply  to   a  different  occurrence  in  which 
complicity of the arrested accused is disclosed. That would be as different transaction and if an 
accused is in judicial custody in connection with one case and to enable the police to complete  
their investigation of the other case, they can require his detention in police custody for the 
purpose of associating him with the investigation of the other case. In such a situation he must 
be formally arrested in connection with other case and then obtain the order of the magistrate 
for detention in police custody.
Latest and Important judgments on the Police Custody and Judicial Custody:­

1.  Sundeep Kumar Bafna vs State of Maharashtra & Anr, Criminal Appeal No. 689 
OF   2014[Arising   out   of   SLP   (Crl.)No.1348   of   2014,   Dt.   27   March,   2014   where   in   it   was 
observed that as follows: ”we are unable to agree that anticipatory bail should be refused if a 
legitimate case for the remand of the offender to the police custody under Section 167(2) of  
Cr.P.C of the Code is made out by the investigating agency.” Gurbaksh Singh Sibbia etc vs State  
of Punjab, 1980 AIR 1632.

2.  In Dinubhai Boghabhai Solanki vs State Of Gujarat & Ors, Criminal Appeal No. 
492 OF 2014(Arising out of SLP (Crl.) No. 8406 of 2012)Date of judgment on 25 February, 
2014, it was observed that the courts should not place reliance on decisions without discussing 
as to how the factual situation fits in with the fact situation of the decision on which reliance is  
placed. It was further observed that the judgments of courts are not to be construed as statutes 
and the observations must be read in the context in which they appear to have been stated. 
The Court went on to say that circumstantial applicability, one additional or different fact may 
make a world of difference between conclusions in two cases.  

3.  As   was   observed   in   Dr   KS   Rao   Vs.   State   of   Hydrabad,   AIR   1957   AP   416,   in  
remanding  the accused   to   police  custody,  the Magistrate ought  to  follow  the provisions of 
section 167 of the Code and should give proper reasons for handing over the accused to the  
police custody.

4.  A remand to Police custody should not be given unless the officer making the 
application is able to show definite and satisfactory grounds. Remand order should not be 
passed mechanically without proper application of mind. State of UP versus RamsagarYadav, 
(1985) 1 Crimes 344.

5.  S.167(2)   only   prescribes   the   maximum   period   of   15   days,   but   that   does   not 
authorize the Magistrate automatically to remand the accused for the period. At every stage 
when the Police seeks a remand, the Police must satisfy the Magistrate that there is sufficient  
evidence against the accused and further evidence might be obtained; and it is only when the  
Magistrate is satisfied, after looking into the case diary, that he should direct a remand. AIR  
1956 Orissa 129.

6.  The scheme of the section after the amendment of the year 1978 is intended to 
protect the accused from unscrupulous police officers. Great care has now been taken to see 
that the accused persons are not unnecessarily remanded. The object of the section is to see  
that the person arrested by the Police is brought before the Magistrate with the least possible 
delay so that the Magistrate could decide whether the person produced should further be kept 
in Police custody and also to allow said accused to make such representation as he wishes to 
make, 1980 CriLJ 1195.
7.  It was held in Kana Vs. St of Rajasthan, 1980 CriLJ 344., Magistrate must give 
reasons for authorizing detention of accused to custody. Such orders cannot be passed as a  
matter of course.

8.  Order of Remand is a judicial order to be passed on application of mind to the 
contents   of   the   Remand   report   submitted   by   the   investigating   officer.   It   is   not   a   empty 
formality or a routine course to extend remand time and again as and when sought by the  
police. The order therefore should contain the reason to extend remand further. 2003 CriLJ 
701   at   page   702.  
9.  As has been observed in Muthoora Vs. Heera, AIR 1951 M B 70; 17 W R 55, if the 
evidence is not forthcoming, the Magistrate must not remand the prisoner in the hope that 
fresh   evidence   may   turn   up.  
10.  Arnesh Kumar Vs. State of Bihar, JT 2014 (7) SC 527, Joginder Kumar Vs. State 
of Uttar Pradesh, 1994 (4) SCC 260 : AIR 1994 SC 1349, a critical and detailed observation of  
the Hon’ble Supreme Court in respect of unabated practice of mechanical arrests.

11.  In D K Basu versu State of West Bengal, AIR 1997 SC 610, the Hon’ble Supreme  
Court has given certain guidelines with regard to arrest and custody of the accused. 1) That 
Policemen   must   wear   visible   and   legible   identification   when   arresting   a   person   and   when 
carrying out interrogation. Names and Particulars of police personnel handling interrogation 
must be recorded in the register; 2) It is the right of every person detained or questioned by 
Police to know the grounds for detention or questioning; 3) The Person arrested must be made 
aware of his right to have someone informed of his arrest or detention as soon as he is put 
under arrest or detention; 4) A person arrested must be produced before a Judicial Magistrate/ 
Judge within 24 hours of his/her arrest; 5) A person arrested should be medically examined at  
the time of arrest and major & minor injuries on arrested person be recorded in Inspection 
Memo duly signed by both Police officer carrying out the arrest and the person arrested and 
the copy of this memo be provided to the person arrested; 6) Any person arrested must be  
medically examined by a doctor from an independent and approved panel of doctors, every 48 
hours during detention; 7) Arrest or Search of women should only take place in presence of 
Women Police Officers and it should not take place in night. And women should be detained  
separately from men; 8) While an accused is in Police custody, his lawyer should be permitted  
to visit him; 9) Information of the arrest of accused person should be given to the district  
Control Room and the State Police Headquarters.

Conclusion:­
As seen from Central Bureau Of Investigation vs. Anupam J. Kulkarni,1992 AIR 
1768,   whenever   any   person   is   arrested   under   Section   57   Cr.P.C.   such   person   should   be 
produced before the nearest Magistrate within 24 hours as mentioned therein. Such Magistrate 
may or may not have jurisdiction to try the case. If Judicial Magistrate is not available, the  
police officer may transmit the arrested accused to the nearest Executive Magistrate on whom 
the   judicial   powers   have   been   conferred.   The   Judicial   Magistrate   can   in   the   first   instance 
authorise the detention of the accused in such custody i.e. either police or judicial from time to 
time  but the total period of detention cannot exceed fifteen day in the whole. Within this 
period of fifteen days there can be more than one order changing the nature of such custody 
either   from   police   to   judicial  or  vice­versa.   If   the  arrested  accused   is   produced   before   the 
Executive Magistrate he is empowered to authorise the detention in such custody either police  
or judicial only for a week, in the same manner namely by one or more orders but after one 
week he should transmit him to the nearest Judicial Magistrate along with the records.

When   the   arrested   accused   is   so   transmitted   the   Judicial   Magistrate,   for   the 
remaining   period,   that   is   to   say   excluding   one   week   or   the   number   of   days   of   detention 
ordered by the Executive Magistrate, may authorise further detention within that period of 
first fifteen days to such custody either police or judicial. After the expiry of the first period of  
fifteen days, further remand during the period of investigation can only be in judicial custody. 
There cannot be any detention in the police custody after the expiry of first fifteen days even in 
a case where some more offences either serious or otherwise committed by him in the same 
transaction come to light at a later stage. But this bar does not apply if the same arrested 
accused is involved in a different case arising out of a different transaction. Even if he is in  
judicial custody in connection with the investigation of the earlier case he can formally be 
arrested   regarding   his   involvement   in   the   different   case   and   associate   him   with   the 
investigation of that other case and the Magistrate can act as provided under Section 167(2) of 
Cr.P.C and the proviso and can remand him to such custody as mentioned therein during the 
first period of fifteen days and thereafter in accordance with the proviso as discussed above. If 
the  investigation  is not completed  within the  period of ninety  days  or sixty days then  the 
accused has to be released on bail as provided under the proviso to Section 167(2) of Cr.P.C.  
The period of ninety days or sixty days has to be computed from the date of detention as per  
the orders of the Magistrate and not from the date of arrest by the police. Consequently the  
first period of fifteen days mentioned in Section 167(2) of Cr.P.C has to be computed from the  
date of such detention and after the expiry of the period of first fifteen days it should be only  
judicial custody.

J.V.V.Satyanarayana Murthy
II Addl.Junior Civil Judge, Anakapalle
 1

WORKSHOP DATED 19-11-2017

SUBJECT SLATED FOR THE WORKSHOP IS

CRIMINAL MESCELLANEOUS PETITIONS.*

PROCEDURAL LAW IS HANDMAID

AND NOT MISTRESS OF JUSTICE1

INTRODUCTION: In dealing with the criminal cases, courts have to necessarily come across

criminal miscellaneous petitions right from the registering the FIR, even prior to that, till the said case

comes to a logical end. The courts have to follow criminal rules of practice, criminal procedure code,

when there are no special enactments to deal with the said criminal cases. Both the parties to the said

criminal cases have to appear before the courts, in obedience to order of the court, to prove their

respective contentions. The judicial officers who are presiding over the courts have to follow the

procedure like Cr.P.C., Evidence Act, etc. by giving opportunity to both parties, for fair trial, without

giving any chance to either party to comment the procedure that was adopted by the courts. Some of

the important topics are as follows:

1. The court can permit anyone of the accused to represent the other accused persons in the criminal

proceedings and it will save the call work time of the court. As and when the presence of all the

accused is necessary, the court may cancel Rule 37 and direct all the accused to appear before the

court2.

2. When an adjournment petition is filed under Rule 61 r/w 309 cr.p.c., the court has to record the

reasons for adjournment of the case and at that time, the court has to exercise the discretion and award

reasonable costs (real costs) to be paid by the accused to the prosecution witnesses, so that the accused

could hesitate to seek adjournments.

3. Whenever a petition under section 70(2) cr.p.c. petition is filed, the court has to verify the record to

ascertain whether the accused has furnished sureties and if the accused furnished sureties, the warrant

may be recalled by imposing costs either payable to the opposite party or to the State/Legal Services

Committee, so that the accused tried to attend the court and cooperate with the trial proceedings. If the

accused has not furnished sureties, the court has to remand him to judicial custody not exceeding 15

days and release him on executing a bond with sureties by specifying the bond amount. If this type of

* B.Satyanarayana, III Addl.Chief Metropolitan Magistrate, Gajuwaka

1 2017 (5) ALT 69

2
Under Rule 37 THE CRIMINAL RULES OF PRACTICE AND CIRCULAR ORDERS 1990,
 2

order is passed, the accused may try to surrender before the court along with sureties. So that

unnecessary expenditure can be minimized to the State.

4. Whenever search petitions are filed, the same shall be liberally allowed since the said facts

may be helpful during the course of trial against the accused3.

5. Whenever enforcement of orders of maintenance are filed under section 125 (3) cr.p.c. or under the

provisions The Protection of Women from Domestic Violence Act, the court may sentence the

respondent to imprisonment for a term which may extend to one month or until payment if sooner

made4. If the respondent offers to get his salary attached, then the court may accept it subject to

production of his salary certificate .If his salary was already attached by any other court, then, mere

attachment of his salary would not serve any purpose and the petitioner may not get justice. When

there are arrears of maintenance and petitioner has filed separate petitions for each month’s arrear then,

the court may sentence the respondent to imprisonment for not exceeding one month on each of the

application5.

6. Whenever a petition under section 205 cr.p.c is filed, the court may dispense with the personal

attendance of the accused and permit him to appear by his Pleader and whenever the presence of

accused is necessary, the court can enforce the attendance of the accused.

7. Whenever there are complaint cases and police investigations are pending regarding the same

incident, the Magistrate shall stay the proceedings of the private complaint and call for the report of

the police officer, who is conducting investigation, under section 210 cr.p.c. and if, police files charge

sheet, the court shall continue the proceedings as if both cases were filed on the police report and if the

police report does not relate to any accused, or if a Magistrate does not take cognizance of any offence

on the police report, the Magistrate shall proceed with the enquiry or trial by vacating the stay.

8. At the time affecting compromise between the parties, some charges against the accused may be non

compoundable offences and under those circumstances, the request of the prosecution to alter the

section of law can be entertained and allowed with a view to compromise the dispute in accordance

with law without deviating the procedural laws and the court has every such power under section 216

r/w 321 cr.p.c. to withdraw any charge against the accused, and pass such other orders to fecilitate the

parties to compound the offences within the four corners of law.

9. The Magistrate has no power to add additional accused under section 319 cr.p.c. and his business is

3
(see section 93 to 98 cr.p.c.)
4 A.Tirumalaraju v. A.Annapoorna & others 2016 (1) ALD (Crl.) 955
5 Lenka Adinarayana v. State of A.P. & others 2016 (1) ALD (Crl.) 965
 3

only to transmit the record to sessions court in respect of PRC cases 6. However, the Magistrate can

entertain the application under section 216 r/w 321 cr.p.c. to convert the PRC case into calendar case

and vice-versa7.

10. The courts have to dispose off the petitions filed under sections 227 cr.p.c. and 239 cr.p.c.,

245cr.p.c. [Private warrant case] and under section 258 cr.p.c. expeditiously. Person summoned as

additional accused under section 319 cr.p.c., cannot be discharged under section 227 cr.p.c. on the

ground that there is no sufficient material against him8.

11. The Magistrate is empowered to award compensation to the accused, for false accusation without

reasonable cause, either in police case or private complaint case and in such circumstances, the court

has to call upon the complainant or informant to show cause why he should not pay compensation to

the accused and after receipt of explanation from the complainant and if the Magistrate is not satisfied

that there are no reasonable grounds for making the accusation, the court may for reasons to be

recorded, make an order for compensation to an amount, not exceeding the amount of fine is

empowered to impose, as the Magistrate may determine and that amount shall be paid by the

complainant or informant to the accused and if such amount was not paid, the court is empowered to

sentence the such person to imprisonment for a period not exceeding 30 days as contemplated under

section 250 cr.p.c.

12. Certain documents may be admitted in evidence with the consent of both parties even without

examining anybody and the same is contemplated under section 294 cr.p.c. The object of section 294

cr.p.c is to accelerate pace of trial by avoiding the time being wasted by the parties in recording the

unnecessary evidence. Where genuineness of any document is admitted, or its formal proof is

dispensed with, the same may be read in evidence since the admitted facts need not be formally proved9

13. Nowadays, the defacto complainants and victims are not in a position to approach the Asst.Public

Prosecutor or Public Prosecutor for getting preparation of their case before the court of law as there are

no sufficient number of Prosecutors and even if the Prosecutor is available, is not in a position to

advice the victims on time. In such circumstances, the aggrieved persons can invoke either 301 cr.p.c.

or 302 cr.p.c. by engaging an Advocate of their choice for assisting the prosecution and to conduct the

prosecution independently.

14. Under section 306 cr.p.c. the Magistrate is empowered to tender a pardon to the accused when the

6 Raj Kishore Prasad v. State of Bihar AIR 1996 SC 1931

7
. Section 209 cr.p.c.:
8
Jogendra Yadav and another v. State of Bihar AIR 2015 SC 2951
9 Shamsher Singh Verma v. State of Haryana 2016 (1) ALD (Crl.) 275 SC
 4

matter is pending before him and this power can be extended in respect of the offences triable by the

court of sessions.

15. The accused cannot ask the court to stay the criminal case, which is filed under section 138 of

Negotiable Instrument Act under the ground that he obtained injunction orders in a civil suit filed by

him10 as contemplated under section 309 cr.p.c. The cross examination of the witness ought not to have

been deferred beyond two or three days. Section 309 cr.p.c. contemplates day to day proceedings and

not to give a chance to accused to threaten or win over the witnesses so that, they may not support the

case of the prosecution11. Seeking unnecessary adjournments by the Advocate amounts to professional

misconduct. Witnesses are responsible citizens, who have other works to attend for eking out a

livelihood. They cannot be treated as less respectable to be told to come again and again just to suit the

conveyance of the Advocate concerned12.

16. Whenever a petition under section 311 cr.p.c is filed, for recalling a witness or to summon a fresh

witness, the court can entertain the same and allow the same by imposing necessary costs to be paid by

the petitioner to such witness in the interest of justice and to give every opportunity to the aggrieved

person to produce evidence before the trial courts. Section 311 cr.p.c. petitions can also be filed by a

defacto complainant through his Advocate for recalling the evidence of PW1 to receive certain

documents to prove that the accused demanded additional dowry in view of the provisions under

section 302 cr.p.c. , section 2 WUA r/w section 24 (8) Proviso of Amended Cr.P.C. with effect from 31-

12-200913. The proviso is that the court may permit the victim to engage an Advocate of his choice to

assist the prosecution under section 24 (8) cr.p.c.

17. The Magistrate is empowered to direct any person including the accused to give his specimen

signatures or hand writing/ thumb marks for the purpose of investigation as contemplated under section

311 (A) cr.p.c. The main point is that the person who was asked to give his specimen signatures must

have been arrested in connection with an investigation or proceedings.

18. The court has every discretion under section 319 cr.p.c. to summon the witness before the court

also as an accused in the same case when the evidence given by him discloses incriminatory material

against him14. It is always desirable to issue notice to the proposed accused before passing any order to

implead him as an accused15. This type of petitions can be avoided if, the court directs the

10 Radio corner (Balle) and others v. Allwyn Unit 2003 (1) ALD (Crl.) 271 AP
11 Ambika Prasad & another v. State 2000 (1) ALD (Crl.) 460 SC
12 Mohammed Khalid v. State of West Bengal 2002 (2) ALD (Crl.) 610 SC Larger Bench
13 Gude Bhavani Sujatha v. Muggulla Srinivasa Rao and another 2016 (1) ALD (Crl.) 650
14 K.Papireddy v. D.Venkateswarlu 2016 (2) ALD (Crl.) 652
15 Pola Srinivasa Reddy and another v. State of A.P and another 2016 (1) ALD (Crl.) 500
 5

investigating agency to furnish copy of the charge sheet to the informant or to the victim as

contemplated under S. 173 (2) (ii) cr.p.c.

A supplemental accused can be added based on the examination in chief of a witness. No opportunity

need be given to the proposed accused for cross-examining the accused before he is impleaded as

supplemental accused16.

19. The Magistrate has got power to consider the application filed by the prosecution for withdrawal of

the case under section 321 cr.p.c. although the alleged offences are triable by Sessions Court17.

20. Sometimes, at the time of delivering Judgment, some of the accused may not attend before the court

for one reason or other and in such circumstances, the court can pronounce a Judgment in such cases

where the personal attendance of the accused was dispensed with during trial and the sentence is one of

fine only or is acquitted18

21. When the accused is sentenced to fine only and to imprisonment in default of payment of fine, and

if the fine is not paid forthwith, the court may suspend the execution of sentence of imprisonment and

grant time up to 30 days with a view to facilitate the convicted persons to pay the fine amount either in

lump sum or in instalment and the convicted persons can be released by obtaining a bond with or

without sureties as contemplated under section 424 cr.p.c.

22. If the accused is sentenced to imprisonment and also sentenced to pay fine and accused has not

paid the fine amount, then, the trial court may refuse to release the convicted person on bail with a view

to release him on bail despite the convicted person intends to present an appeal before the appellate

court. If fine amount is paid, then only the court can release him on bail when the sentence is not

exceeding three years and the charge was bailable one and convicted person was on bail during trial.

23. FORFEITURE OF BOND: When the sureties failed to produce the accused, as directed by the

court and there are no reasons to consider the contention of the sureties, the court after making an

enquiry forfeit the bonds executed by the sureties and impose sentence of fine and in default of

payment of fine, the sureties may be sentenced to imprisonment in civil prison for a term which may

extend to six months as contemplated under section 446 cr.p.c. If the sureties have no sources of

income, the court has every power to reduce the fine amount in the interests of justice19.

24. DISPOSAL OF PROPERTY: [Chapter 34] In respect of police challan cases, the court can return

the property to the police for interim custody or can return the same to the persons entitled, if the said

16 Gangadharanandigari Swamy v. State of A.P. 2002 (1) ALD (Crl.) 680 AP

17 AIR 1980 SC 423
18
section 353 (6) cr.p.c.

19 Md.Kunju v. State of Karnataka 2000 (1) ALD 477 SC

 6

properties are not the crime weapons20. If the properties are subject to speedy and natural decay, the

court may order for disposal of the said properties by putting an auction after recording such evidence

as the court may think fit (Section 451 cr.p.c.). Even in respect of seizure of cash from the possession

of the accused, the same can be returned to him on obtaining a bank guarantee or on obtaining a bond

with immovable properties towards security and the said bond shall be on hundred rupee stamp paper

in favour of the trial court for return of amount of the value of the cash21. In respect of return of

currency notes to the complainant, the court has to prepare a detailed panchanama and shall take

photographs of currency notes also apart from taking personal bond22.

25. When the seized properties are not produced before the court, but the said seizure is intimated to

the court, then the Magistrate may make an order for disposal of said property to the person entitled

and if such person is not able to traced out, then the court can order for interim custody of property to

police till further orders as contemplated under section 457 cr.p.c.

26. Whenever any document is to be marked which is unstamped and unregistered, the criminal court

need not exercise discretion to impound the document when the Magistrate is deciding the matters

other than the under chapters 9 cr.p.c. [Order for maintenance of wives, children and parents, & 10 of

cr.p.c. maintenance of public order and tranquillity]. The provisions under section 33 & 35 of Stamp

Act 1899 are not applicable to criminal courts23. In criminal courts, the documents can be marked

tentatively subject to objection and proceed with the case. The court has to note down the objection of

the opposite party. The admissibility of the document can be decided at the time of pronouncing the

Judgment24

27. Electronic evidence is admissible under law under Indian Evidence Act and computer generated

call details can be received as secondary evidence, however, in the absence of production of a

certificate as required under section 65 (B) (4) Cr.pc.. the said computer bills are inadmissible25.

20
Sunderbhai Ambalal Desai v. State of Gujarat 2002 Law Suit (SC) 1346
21 Manovarthy Sreenivas v. State of A.P. 2016 (1) ALD (Crl.) 329 AP
22 Bharatlal Sahu v. State of Chattisghar AIR 2003 (10) 473 or 2003 (6) ALT 28.1 (DNOHC)
23 Preetesh Kumar @ Preetesh Kumar Agarwal v. State of Telanagana and another 2017 (2) ALD (Crl.) 88
24 Bipin Santhilal Panchal v. State of Gujarat 2001 (2) Supreme 65 Larger Bench
25 Satpal Singh @ Chota v. State of Punjab 2017 (1) ALD (Crl.) 199 SC
 7

CONCLUSION: The judicial officers have to exercise the discretion judiciously by giving reasons for

the every petition that they may come across, without breaking the procedural law. Some times, the

judicial officers may bend the law to do real justice to the parties, by giving cogent and convincing

reasons for doing so. So that the higher courts may appreciate the reasons and dispose of the revisions

or appeals as the case may be.

The Judiciary is respected not on account of

its power to legalise injustice on technical
grounds, but because it can be capable of
removing injustice and is expected to do so26.

26 J.Mallareddy v. Smt.I.Santamma & others 2009 (5) ALT 493 Div.Bench of Hon'ble High Court of A.P.
 1

WORKSHOP DATED 19-11-2017

SUBJECT SLATED FOR THE WORKSHOP IS

OFFENCES AFFECTING ADMINISTRATION OF JUSTICE. *

“A court of law is respected when it rules by authority of its reason

and not by reason of its authority.” Courts are said to be the temples of
Justice to deliver justice, but, in modern India, courts are mere temples of
making order not delivering Justice. Judiciary is the trustee of the people.
It is the last hope of the people. Courts are meant for public and for
Justice not to show supremacy over the public1.

INTRODUCTION: While administering the criminal justice system, the stakeholders like parties

to the dispute, learned Advocates, court staff, learned judicial officers/presiding officers have to

discharge their functions in accordance with the law of the land to uphold the rule of law. The

courts have to administer the justice by following the procedural laws, like criminal procedure code,

criminal rules of practice and Indian Evidence Act. The Indian Evidence Act is only the law giving

discretion to the judicial officers either to believe the evidence of particular witness or not. The

judicial officers themselves have to administer oath before allowing witness to give evidence.

Sometimes, the witness may speak falsehood or tender false documents and at times the witness

may not turn up to appear before the court, even after receipt of summons and the persons, who are

responsible citizens may not cooperate with the investigating agency or public authority and may

violate the law of the land.

Nowadays, the courts are also coming across the acts of violence like throwing cheppal,

stones, acids etc. against the presiding officer of the court also and thereby the culprits are causing

interruption to the judicial proceedings and committing offences which are affecting the

administration of justice. In such circumstances, the presiding officers have to initiate a criminal

action against such offenders, lest, the administration of justice will be at peril. Such offenders have

to be punished with an iron hand without taking any lenient view. These type of offences have to be

* B.Satyanaryana, III Addl.Chief Metropolitan Magistrate, Gajuwaka

1 S.P.Gupta v. Union of India 1981 SUPP. SCC 37
 2

treated as more serious offences than the offences that were committed outside the court premises.

Chapter 26 of Code of Criminal Procedure, 1973 deals with “provisions as to offences affecting the

administration of justice’’. It contains sections 340 to 352.

1. Section 340 Cr.P.C.: Procedure in cases mentioned in section 195 cr.p.c.:- Whenever an

application is filed before the court or otherwise, the court is of the opinion that it is expedient in

the interests of justice that an enquiry should be made into any of the offences2 as mentioned under

section 195 cr.p.c. and it appears to the court that the said offences have been committed in or in

relation to a proceeding before the court or in respect of a document produced or given in evidence

in the said proceedings before the court, then, the court may, after such preliminary enquiry, if any,

as it thinks necessary, -

(a) record a finding to that effect;

(b) make a complaint thereof in writing;

(c) send it to a Magistrate of First Class having jurisdiction;

(d) take sufficient security for appearance or send the accused to custody; and

2
Absconding to avoid service of summons or other proceeding (172 IPC.)
Preventing service of summons or other proceeding, or preventing publication thereof (173 IPC)
Non-attendance in obedience to an order from public servant (174 IPC.)
Non appearance in response to a proclamation under section 82 of Act 2 of 1974 (174A IPC)
Omission to produce [document or electronic record] to public servant by person legally bound to produce it (175 IPC..)
Omission to give notice or information to public servant by person legally bound to give it (176 IPC.)
Furnishing false information (177 IPC )
Refusing oath or affirmation when duly required by public servant to make it (178 IPC)
Refusing to answer public servant authorised to question (179 IPC)
Refusing to sign statement (180 IPC)
False statement on oath or affirmation to public servant or person authorized to administer an oath or affirmation (181 IPC)
False information, with intent to cause public servant to use his lawful power to the injury of another (182 IPC)
Resistance to the taking of property by the lawful authority of a public servant (183 IPC)
Obstructing sale of property offered for sale by authority of public servant (184 IPC)
Illegal purchase or bid for property offered for sale by authority of public servant (185 IPC)
Obstructing public servant in discharge of public functions (186 IPC)
Omission to assist public servant when bound by law to give assistance (187 IPC)
Disobedience to order duly promulgated by public servant (188 IPC)
Punishment for false evidence (193IPC)
Giving or fabricating false evidence with intent to procure conviction of capital offence (194IPC)
Giving or fabricating false evidence with intent to procure conviction of offence punishable with imprisonment for life or imprisonment (195 IPC)
Using evidence known to be false (196 IPC)
False personation for purpose of act or proceeding in suit or prosecution (205 IPC)
Fraudulent removal or concealment of property to prevent its seizure as forfeited or in execution (206 IPC)
Fraudulent claim to property to prevent its seizure as forfeited or in execution (207 IPC)
Fraudulently suffering decree for sum not due (208 IPC)
Dishonestly making false claim in Court (209 IPC)
Fraudulently obtaining decree for sum not due (210 IPC)
False charge of offence made with intent to injure (211 IPC)
Intentional insult or interruption to public servant sitting in judicial proceeding (228 IPC)
Forgery (463)
Using as genuine a forged [document or electronic record] (471 IPC)
Counterfeiting device or mark used for authenticating documents described in section 467, or possessing counterfeit marked material (475 IPC)
Counterfeiting device or mark used for authenticating documents other than those described in section 467, or possessing counterfeit marked material
(476 IPC)
 3

(e) bind over any person to appear and give evidence before such Magistrate.

It is not mandatory that the court should record a finding regarding the commission of

offence of perjury after preliminary enquiry3.

A three Judge Bench of Apex Court has held that the proceedings under section 340 cr.p.c

can be successfully invoked even without a preliminary enquiry, since the whole purpose of enquiry

is only to decide whether it is expedient in the interest of justice to enquire into the offence, which

appears to have been committed4.

A complaint made under Section 340 cr.p.c. shall be signed by the presiding officer of the

court or by such other officer of the court as the court may authorize him in writing on its behalf. In

respect of a complaint before a High Court, the officer of High Court shall sign in the complaint as

directed by the High Court.5

Provisions of 195 cr.p.c. and 340 cr.p.c. do not circumscribe the powers of the police to

investigate in respect of prosecution for fabricating false evidence. Section 195 cr.p.c. is applicable

once investigation is completed6. In respect of the complaint filed under section 195 cr.p.c. by the

court, the police have no power to investigate the case as the court has filed the complaint based on

the investigation done by police and collected evidence during the course of investigation7.

Sec.195 (1) (b) (ii) Cr.P.C. is not applicable to a case where forgery of a document was

committed before the document was produced into the court and it has been held that the scope of

preliminary enquiry envisaged in section 340 (1) cr.p.c is to ascertain whether any offence affecting

administration of justice has been committed in respect of a document produced in the court or

given in evidence in a proceeding in that court8. Section 195 (1) (b) (ii) cr.p.c attracts only when the

offences enumerated in the said provision have been committed with respect to a document after it

has been produced or given in evidence in a proceeding in any court, i.e. during the time when the

3 Premsagar Manocha v. State (NCT of Delhi) 2016 (1) ALD (Crl.) 421 SC
4 Preetesh v. State of Maharashtra (2002) 1 SCC 253
5
340(3)cr.pc.
6
M NARAYANDAS V/S STATE OF KARNATAKA AIR 2004 SC 555 (559)
7 M.Narayana Das v. State of Karnataka AIR 2004 SC 555
8 Sachidananda Singh v. State of Bihar AIR 1998 SC 1121
 4

document was in custodia legis.9

In one case, forged affidavits were filed before Supreme Court and the Supreme Court itself

tried and punished the accused. In that circumstances, it was held that the Supreme Court has no

original jurisdiction to try a criminal offence under section 193 cr.p.c. and there is no compliance of

the provision under section 195 r/w 340 cr.p.c.10

Application under section 340 cr.p.c. can be filed even after conclusion of the proceeding

and there is no bar that such an application must be filed during the pendency of proceeding11.

When a doctor had issued a fabricated post-mortem certificate to save the accused from

punishment, then, the court can launch prosecution against the doctor under section 340 cr.p.c. in

the interest of justice.12 Though a wide discretion is given to the Court under the section, such

discretion should be exercised with great care and caution in as much as the object of this section as

well as of Section 195 cr.p.c. is to provide a safeguard against frivolous or vexatious prosecutions13.

The court is not supposed to express any opinion on his guilt or innocence, which can be

determined only at the conclusion of his intended trial. 14 Formation of opinion that the said

person charged has intentionally given false evidence is a condition precedent for directing lodging

of complaint. Existence of mens rea or criminal intention behind the act complained of will have to

be looked into and considered before any action under Section 340 cr.p.c. is recommended.15 The

court is not precluded from taking action under this section by reason of the fact that it has awarded

compensation under section 250 of cr.p.c., for false accusation.

Where falsity of the evidence is brought to the notice of the court, after the judgment was

9 Iqbal Singh Marwash v. Meenakshi 2005 (2) APLJ 45 DNC (SC) Four Judges
10 Randheer Singh v. State of Haryana 2001 ALD (Crl.) 424 SC Larger Bench
11
1997 (24) Cri LT 427 cited from the AIR Manual Civil and Criminal 6th Edition Volume 18 all India Reporter
Pvt.Ltd., Nagpur at page 536

12
Gayathri Devi v. State of Andhra Pradesh 1998Cri LJ 1717 (1719) (AP)
13
Santhokh Singh v. Inzhar Hussain AIR 1973 SC 2190 (2194)
14
Sher Chand v. State 1983 Cri LJ 1482 (1493) (DB)
15
(1982) 86 Cal WN 378 (394) cited from the AIR Manual Civil and Criminal 6th Edition Volume 18 all India Reporter Pvt.Ltd.,
Nagpur at page 538
 5

delivered, the Court would still be competent to proceed under section 340 cr.p.c.16

2. Section 341 Cr.P.C.: Appeal:- The orders passed under 340 cr.p.c. can be challenged before the

appellate court. If the trial court refuses to entertain application under section 340 cr.p.c. then, the

appellate court may entertain the same.17

3. Section 342 Cr.P.C.: Power to order costs:- Any court dealing with the complaint under

section 340 cr.pc or an appeal under section 341 cr.p.c. shall have power to order costs.

4. Section 343 Cr.P.C.: Procedure of Magistrate taking cognizance:- The complaint under

section 340 cr.p.c. or 341 cr.p.c. shall be treated as if it were instituted on a police report.

5. Section 344 Cr.P.C: Summary procedure for trial for giving false evidence:- At the time of

delivering judgment or final order, the court has to form an opinion regarding the evidence of any

witness as to whether he wilfully gave false evidence and had fabricated false evidence and if, the

court satisfied that it is necessary and expedient in the interest of justice that the witness should be

tried summarily, then, court shall take cognizance of the offence and after giving the offender a

reasonable opportunity of showing cause as to why he should not be punished for such offence, try

such offender summarily and sentence him to imprisonment up to 3 months or sentence into pay

fine up to Rs.500/- or both. Perjury for prosecution under section 344 cr.pc shall be used

frequently with a view to curb the menace of perjury18.

6. Section 345 Cr.P.C. : Procedure in certain cases of contempt:- When the offences punishable

under sections 175, 178, 179, 180, and 228 IPC,19 have been committed in the view or presence of

any court, the court may cause the offender to be detained in the custody and may, at any time

before raising of the court on the same day, prepare the complaint, take cognizance of the offence

and, may after giving the offender a reasonable opportunity of showing cause why he should not be

punished, sentence the offender to fine not exceeding Rs.200/- and in default payment of fine shall

be imprisonment up to one month, unless such fine be sooner paid.

16
Lincoln J Willis v. Shanisul Haque 1974 Cri LJ 23 (24) (Cal)
17
Appeals on the order passed under section 340 cr.p.c
18 Mahila Vinod Kumari v. State of M.P. AIR 2008 SC 2965
19
See footnote 6.
 6

In one case, the Investigating Officer failed to attend the court in pursuance of summons

served on him and on that a Non Bailable Warrant was issued and subsequently he executed a

bond. The Asst.Sessions Court imposed Rs.100/- fine for non-appearance and on that he challenged

the said order as there is a bar under section 195 cr.p.c. It was held that in such circumstances,

section 345 cr.p.c. is not attracted and a proper course is to file a written complaint before the

competent Magistrate or to forfeit the bond executed by the Investigating Officer under section 446

cr.p.c. Imposing fine of Rs.100/- is illegal as the court has not followed the law.20

7. Section 346 Cr.P.C. : Procedure where court considers that the case should not be dealt with

under section 345 cr.p.c.:- If the court feels that the punishment that was provided under section

345 cr.p.c. against the offender is not sufficient to meet the ends of justice and more punishment is

to be imposed on him, then the court may, after recording the facts constituting the offence and

statement of the accused, forward the case to a Magistrate having jurisdiction to try the same after

obtaining necessary bond from the offender and the said case shall be treated as if it were the case

filed by police.

8. Section 347 Cr.P.C.: When Registrar or Sub Registrar to be deemed a civil court:-

The Registrar or any sub Registrar appointed under Registration Act, 1908 shall be deemed to be a

civil court within the meaning of section 345 cr.p.c. and 346 cr.p.c.

7. Section 348 Cr.P.C.: Discharge of offender on submission of apology:-

The court is empowered to accept the apology of any offender for the charges pertaining to the

offences mentioned in 345 cr.p.c. or under section 346 cr.p.c and discharge the offender in the

interest of justice. Where a party intentionally insulting the court and states that if the court thinks

that he had said anything to undermine the dignity of the court, then, the court may excuse him. In

such circumstances, the court held that party had not apologised to the court21.

8. Section 349 Cr.P.C.: Imprisonment or committal of person refusing to answer or produce

20 M.Sudhakar Rao v. State of A.P. 2000 (2) ALT (Crl.) 142 AP

21
1964 ALJ 914 cited from the AIR Manual Civil and Criminal 6 th Edition Volume 18 all India Reporter Pvt.Ltd.,
Nagpur at page 598
 7

document:-

In any case, if any witness or person called to produce a document or thing before a criminal court

and such person/witness refuses to answer such questions as are put to him or refuses to produce

any document or thing which is in his possession or power and if he does not to do so, even giving

reasonable opportunity to such person/witness, and does not offer any reasonable excuse for such

refusal, then, the court may for reasons to be recorded in writing, sentence him to simple

imprisonment, or by warrant, commit him to the custody of an officer of the court for any term not

exceeding seven days. If any such witness or person still persists in his refusal, then, the court shall

follow the procedure under section 345 cr.p.c. or 346 cr.p.c. mentioned supra. An accused cannot

be charged under section 349 cr.p.c. if he produces the document before the court as required by the

court even though he failed to appear before the court.22

9. Section 350 Cr.P.C.: Summary procedure for punishment for non attendance by a witness

in obedience to the summons:

The object of Section 350 cr.p.c. is to empower a criminal court to try witnesses summarily for

disobedience of its summons. During the course of trial in criminal cases, the courts are adjourning

the matters for non attendance of witnesses, who have received summons from the court. In such

circumstances, the courts have to invoke section 350 cr.p.c. if, it is expedient in the interest of

justice that such witnesses should be tried summarily as the same is an offence under section 174

IPC. The trial court may take cognizance of such offence and after giving the offender an

opportunity of showing cause why he should not be punished under section 350 cr.p.c., may,

sentence the offender to fine not exceeding one hundred rupees. Summary procedure is to be

followed for non attendance of a witness in obedience to the summons. The court shall not be too

sensitive, and shall give one more opportunity in such situations.23

10. Section 351 Cr.P.C. :Appeals from convictions under sections 344, 345, 349 and 350 cr.p.c.:

22
[1991] CCJ 293 Punjab & Haryana cited from the AIR Manual Civil and Criminal 6th Edition Volume 18 all India
Reporter Pvt.Ltd., Nagpur at page 598

23 RAJASEKHAR V/S STATE OF ANDHRA PRADESH 1997 (1) ALT (Crl.) 298 AP
 8

The orders of sentences that were passed by the trial courts, may be challenged before the appellate

court and the appellate court may alter or reverse the finding or reduce the sentence as the case may

be. Appeals filed under section 351 Cr.P.C. shall be registered as criminal appeals24.

11. Section 352 Cr.P.C.: Certain Judges and Magistrates not to try certain offences when

committed before themselves:-

Except as provided in sections 344, 345, 349 & 350 cr.p.c. no Judge of a criminal court [other than a

Judge of High Court] or Magistrate shall try any person for any offence referred to under section

195 cr.p.c., when such offence is committed before himself or in contempt of his authority, or is

brought under his notice as such Judge or Magistrate in the course of a judicial proceeding.

CONCLUSION:

As a general rule, any person having knowledge of the commission of an offence may set

the law in motion by filing a complaint even though he is not a person entrusted in or affected by

the offence. To this general rule, the above provisions provide an exception, for it forbids

cognizance being taken of the offences preferred to therein, except where there is a complaint in

writing by the court or by the public servant concerned 25. The object of section 195 cr.p.c. is to

prevent the improper or reckless prosecutions by private persons for offences in connection with the

administration of public justice and those relating to the contempt of lawful authority of a public

servant26.

The main object behind section 340 cr.p.c. is that the twin evils of perjury and fabrication of

evidence have to be dealt with a very firm hand. The role of the court under section 340 cr.p.c is that

the court has to form an opinion that the witness has either intentionally given false evidence or

produced fabricated evidence27. Issuing a show cause notice before hand is discretionary and not

mandatory28. The trial court or the appellate court only has to file complaint and in such case,

24
Rule 119 of Criminal Rules of Practice and Circular Orders 1990
25
LALJI HARIDAS V/S STATE OF MAHARASHTRA AIR 1964 SC 1154
26
PATEL LALJIBHAI SOMABHAI V/S STATE OF GUJARAT AIR 1971 SC 1935
27 M.Salahuddin Ayub v. State of Telangana 2016 (2) ALD (Crl.) 261
28 Dr. Gayatri Devi v. State of A.P. 1998 Cr.L.J. 1717 AP HC
 9

section 197 cr.p.c. (prosecution of judges and public servants) is not applicable29.

Section 340 Cr.P.C. is not applicable, if the document was already forged and produced

before the court by the offender. Any private person can file a complaint before the court for

punishing the said offender and there is no need to file the complaint by the court. The trial judges

have no power to try the offences which were not committed in their presence and in such

circumstances, the presiding officers have to follow the procedure as contemplated under section

340 cr.p.c. in respect of the offences mentioned in section 195 cr.p.c. For giving false evidence,

contempt of court proceedings including the offence punishable under section 228 IPC (intentional

insult or interruption to public servant sitting in judicial proceeding), and for non-attendance by

witness before the court in obedience to the summons received by him, the presiding officer of the

court may summarily try such persons by following the procedure under sections 344, 345 & 350

cr.p.c. and sentence them to pay fine of Rs.500, 200/-, 100/- respectively. If any witness or person

fails to answer any question or refuses to produce any document or thing, despite the directions

from the court, then the court may conduct summary trial and commit him to civil prison up to

seven days. If such person or witness still refuses to answer the questions that were put to him and

refuses to produce the document or thing, then the presiding officer of the court may follow the

procedure under section 345 cr.p.c. and 346 cr.p.c. The presiding officers have to protect the

dignity and decorum of the courts at all times.

It is a universal principle that “no one should be

a Judge in a case in which he himself is
interested or is a prosecutor”30.

29 Section 195 (2) (b) (i) (ii) cr.p.c :V.Sharma Rao v. District & Sessions Judge, Visakhapatnam 2002 (2) ALD (Crl.)
761 AP
 WORK SHOP NO.1

PRESENTATION BY

SRI U.SATYARAO

II ADDITIONAL DISTRICT AND SESSIONS

JUDGE, VISAKHAPATNAM

SRI B. SATYANARAYANA MURTHY

III ADDL. CHIEF METROPOLITAN

MAGISTRATE, GAJUWAKA

SRI K. PRAKASH BABU

III METROPOLITAN MAGISTRATE,

FAC II METROPOLITAN MAGISTRATE
FOR RAILWAYS, VISAKHAPATNAM.

TOPIC

INVESTIGATION AND BAIL IN

CRIMINAL CASES

SUB-TOPIC

OFFENSES AFFECTING
ADMINISTRATION OF
JUSTICE
 2

INTRODUCTION

With reference to the Hon’ble High Court directions, as it was aimed to enrich the

knowledge among the judicial officers which is brain-child of our Hon’ble

Administrative Judge of Visakhapatnam District Judiciary his Lordships Justice

C.V. Nagarjuna Reddy garu yet again sought that the topics enshrined, i.e., the topic

investigation on bail in criminal cases and it is fortunate enough to me that Hon’ble

District Judge pleased to assign a sub topic to present i.e., offences affecting

Administration of Justice. I made my good attempt to stand before his Lordships to

deal little about the topic assigned to me I feel that I succeeded in my attempt to little

extent since the implementation of the subject is a rarity in discharging our official

duties day-in and day-out coming across the bench. However, it is high time in the

present scenario of the practice and procedure adopted by the bar and bench.

Nevertheless, it is our duty to enrich ourselves with regard to the subject assigned to

me to counter the situation if any encountered by the presiding judge while

Administration of justice in the court day-in and day-out.

- K Prakash Babu,
 3

OBJECT AND REASONS:

To achieve the obligation of the preamble of the constitution by the courts in

rendering fair justice by maintaining equality before Law. Not only the persons

who approached the court alleging somebody has done mistake. There is every

possibility of falsification of charge or allegation both in civil and criminal

proceedings in a court of Law by having a frivolous litigation with a malafide

intentions against innocent. The law makers with the help of the constitution of

India safeguard the interest of the innocents without leaving them to their fate

during the course of trials and proceedings either in court i.e., Civil and criminal

revenues including tribunals to take stringent action against them and the

procedure was contemplated to deal with the offences which are defined in Penal

Code while administering the justice to curb such type of frivolous and chronic

litigants who are causing obstacles rendering justice. In the case of offences like

purgery, forgery, disobedience of order of court and other types of contempts of

the court the object to ascertain whether any offence was affecting administration

of justice has been committed.

 4

PROVISIONS AS TO OFFENCES AFFECTING THE ADMINISTRATION OF

JUSTICE.

Section 340 Cr.P.C provides the procedure in cases mentioned in Section 195 Cr.P.C. 1. When upon on application made to
it in this behalf or otherwise, any court is of the opinion that it is expedient in the interest of justice that an enquiry has to be
made into any offence referred to in clause (b)(i) of Section 195 which appears to have been committed in or in relation to
proceedings in the court or as the case may be in respect of a document produced or given in evidence in a proceedings in that
court. Such court may after such preliminary enquiry if any as it thinks necessary
a. record a finding to that effect
b. make a complaint thereof in writing;
c. send it to a Magistrate of the first class having jurisdiction
d. take sufficient security for the appearance of the accused before such
Magistrate or if the alleged offence is non bailable and the court thinks it necessary so to do, send the accused in custody to
such Magistrate; and
e. bind over any person to appear and give evidence before such Magistrate.
2. The power conferred on a Court by Sub-Section (1) in respect of an offence may, in any case where that Court has neither
made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint,
be exercised by the court to which such former Court is subordinate within the meaning of Sub-Section (4) of Section 195.
3. A complaint made under this section shall be signed,
a. where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint,
b. in any other case by the presiding officer of the court or by such officer of the Court as the Court may authorise in writing in
this behalf.
4. In this section, “Court” has the same meaning as in Section 195.
 5

The code of criminal procedure Sec.195

Prosecution for contempt of lawful authority of public servant, for offences

against public justice and for offences relating to documents given in evidence –

1. No court shall take cognizance -

a. (I) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code, or
(ii) of any abetment of , or attempt to commit, such offence or
(iii) of any criminal conspiracy to commit such offences,
except on the complaint in writing of the public servant concerned or of some other public servant to whom he is
administratively subordinate:
b. (I) of any offence punishable under any of the following sections of the Indian Penal Code, namely, Sections 193 to
196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been
committed in, or in relation to, any proceeding in any court, or
(ii) Of any offence described in Section 463, or punishable under section 471, Section 475 or Section 476, of the said
code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a
proceeding in any court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of any offence specified in sub-clause
(I) or sub-clause (ii),
(except on the complaint in writing of that court or by such officer of the court as that court may authorise in writing in
this behalf, or of some other court to which that court is subordinate.)
2. Where a complaint has been made by a public servant under clause (a) of Sugb-section (I) any authority to which he
is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court;
and upon its receipt by the Court, no further proceedings shall be taken on the complaint:
Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.
3. In clause (b) of sub-section (1), the term “court” means a Civil, Revenue or Criminal Court and includes a tribunal
constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this
section.
4. For the purposes of clause (b) of sub-section (1) a court shall be deemed to be subordinate to the Court to which
appeals ordinarily lie from the appealable decrees or sentences of such former court, or in the case of a Civil court
from whose decrees no appeal ordinarily lies to the prinicpal Court having ordinary original civil jurisdiction within
whose local jurisdiction such Civil Court is situate:
Provided that -
a. where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which
such Court shall be deemed to be subordinate;
 6

b. where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to subordinate to the Civil or
Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to
have been committed.

As per the above two sections it is indictive that the offences of Penal Code

mentioned in Section 195 as envisaged are the offences affecting while the

administration of Justice. The two sections seems to be a procedure but on

thorough interpretation Section 195 Cr.P.C may be considered as the definition as

to the offence and Section 340 Cr.P.C provides the procedure.

Section 195 deals with the prosecution for three different groups of offences

viz. Contempt of lawful authority of public servants, certain offence against public

justice and certain offences relating to documents given in evidence. The second

and third groups are connected indirect and both of them are affect the

administration of justice clause A of subsection 1 and subsection 5 concerned to

public servants. Sub section 2 and subsection 3 concerned to courts and sub

section 4 relates to both. The above two sections can understand by illustrative

manner rather going through the phrases contemplated therein.

The purpose of the section is to bar private prosecution where the courts of

justice is sought to be perverted leaving it to the court itself who uphold its dignity

and prestige. On principle there is no reason why the safeguard in clause (c)
 7

should not apply to offences committed by the witnesses also. Witnesses need

greatest protection against vexatious prosecutions as parties and the court should

have as much control over the acts of the witnesses that enter as a competent of

judicial proceedings as over the acts of the parties. Therefore clause (c) extents to

the witnesses. The extension would be in confirmity with the broad priniple which

forms the basis of Section 195. A question arises in this connection whether the

person who abetted the offence but are not the parties to the proceedings whether

fall within the purview of the clause (c) of Section195.

The bar under above section limited to only when offence made out other than

the offences mentioned in Sec. 195 Cr. P.C. alone if the offence between Sec. 172

to 178, so far 195 (a) (I).

The underlining purpose of enacting of Sec. 195 of Cr. P.C. seems to be control

the temptation on the part of the private parties considering themselves aggrieved

by the offences mentioned in those sections to start criminal prosecution of

frivolous, vexatious are insufficient grounds inspired by revengeful desire to harass

or spite their opponents. In order to attract the Sec. 195 of Cr. P.C. the offence

should be alleged to have been committed by the party to the proceedings in his

character as such party after having become a party to the proceedings.

The Code of Criminal Procedure Under Sec.190 and 200 empowers the

Magistrate to take cognizance of the offence on a complaint or on a final report by

 8

the Investigation agencies with exception under Section 195, and under Section 468

of Code of Criminal Procedure.

Section 195 Cr.P.C bars to take cognizance without any complaint or

application as contemplated U/Sec 340 of Cr.P.C.

One can be easily understood as stated supra in that

* Section 195 (a)

* Section 195 (b)

The offences contemplated under the clause (a) are Sections 172 to 188 of both

inclusive of Penal code.

Of any abetment, or attempt to commit such offence or any criminal conspiracy

to commit such offence.

The court except on the complaint in writing of the public servant concern or of

some other public servant to whom he is administratively subordinate.

Offences contemplated under the clause (b) are Sections 193 to 196 of both

inclusive of Penal Code, Sections 199, 200, 205 to 211 both inclusive and Section

228. The offences contemplated in Clause (b) have been committed in or relation to

any proceedings in any court.

COURT MEANING:

Here the “any court” means Civil, Criminal and Revenue courts within the

meaning of the Section 340 Cr.P.C.

 9

Two tests should be applied in order to see whether particular officer is a court and

they are:

1) authority to take evidence on oath

2) authority to deal out justice i.e., to give final decision in the matter.

It may be stated broadly that what distinguishes a court from a quasi judicial

criminal is that it is charged with a duty to decide dispute in judicial manner and

declare the rights of parties in a definitive judgment by giving the parties an

opportunities as a matter of right by hearing both the sides of their claims after

adducing evidence in proof of it reported in AIR 1956 SC 153.

The term court includes a civil, revenue or criminal court but does not include

registrar or sub registrar.

An Income tax officer proceeding under section 37 of the Income tax Act as amended

in 1956 was a court within the meaning of 192 reported in AIR 1964 SC 1154.

The other offences contemplated are Clause (b) (ii) are Section 463, Section 471,

475 or 476 where the offence was committed in respect of a document produced or

given in evidence in a proceeding in any court. Apart from them of any criminal

Conspiracy to commit or attempt to commit or the abetment of any offence specified

in sub Clause (I) or Sub Clause (ii).

It is clear from the above two clauses (a) and (b) for the offence contemplated in

clause (a), complaint has to be made by public servant and for the offences

contemplated in clause (b), the procedure contemplated U/Sec 340 Cr.P.C.

 10

Under Section 340 Cr.P.C any court is of the opinion that it is expedient in the

interest of justice that an inquiry should be made into any offence referred in Clause

(b) of Section 195 (a) which appears to have been committed or in relation to a

proceeding in the court as the case may be.

The court before which such offence appears to have committed such court make

a preliminary inquiry if any

a. record a finding to that effect.

b. Make a complaint thereof in writing.

c. send it to a magistrate of 1st class having Jurisdiction.

Before sending the person who committed the offence appears to be take

sufficient security for his appearance before such Magistrate or when the offence is

non bailable one the court if necessary send him to Judicial custody to such

Magistrate or he may be bindover to appear before such Magistrate.

The power conferred on a court under the sub Section in respect of an offence

may in any case where that court has neither made a complaint nor rejected an

application for making of such complaint to which such formal court is a

Subordinate within the meaning.

When a complaint is made it should be signed.

The Court is not barred to take cognizance for the offence punishable under

section 471 of IPC i.e., reported in AIR 1971 SC 1708.

 11

For launching prosecution, for offence falling under section 195 (1) (b)

complaint by the court concerned only can be competent. A private person who

might have felt wronged by a document cannot file complaint in respect of such

document if it has been produced or given in evidence in a proceeding in a court.

The prosecution for fabricating false evidence during investigation Sec. 195 Cr. P.C.

is not applicable.

The court while recording finding contemplated U/Sec 340 Cr.P.C need not

strictly adhere to very language used in the Section but it must be such language

that it lieu no doubt that it was fit and proper case and it was in the interest of

Justice to launch the prosecution against the person and court proceeding under

this section should record a finding that the offence alleged appears to have been

committed and that it is expedient in the interest of Justice that an inquiry should be

conducted to satisfy sub section (1) (a) held in AIR 1970 AP 119.

The prosecution of fabricating false evidence provisions of Sec. 195 Cr. P.C. and

sec. 340 do not circumscribe to the police investigation. The provisions of Sec. 195

CR. P.C. is applicable once investigation is completed. The provisions of Sec. 195

Cr. P.C. Is mandatory in nature and the court has no jurisdiction to take cognizance

of any offence mentioned therein unless there is a complaint in writing as required

by this section. The Court does not barred to take cognizance for the offence

punishable under section 471 of IPC i.e., reported in AIR 1971 SC 1708.
 12

>>> The section does not apply for prosecuting a receiver appointed by
the court for the offences alleged to have been committed by acts in
excess of his authority.

>>>A complaint under section 323,352 and 504 of IPC in course of

execution of decree complainant need not move to the court which
passed the decree.
>>>Escape from lawful custody of servant of civil court servant can file
complaint.

>>>The Advocate who attest an affidavit of a surety of a bail bond when

the surety is untraceable the advocate cannot be said to be committed
any offence under section 195 of Cr. P.C.

COMPLAINT:

The requirements of the complaint which is referred in the section is to the court

not to the police and the term in clause a of sub section 1 is not used in the

technical sense in which it is defined in section 2 (d) under which the report of a

police officer is not a complaint. The purpose of complaint under the section is only

to show that the officer concerned or his supervisor had considered the matter and

moved the court.

The offences concerning to the public servants of sub section clause (a) it is the

public servant concerned or some other authority who is subordinate

 13

administratively that makes him competent to give complaint reported in AIR 1962

SC 1206.

Cognizance of the offence either under section 352,353 of IPC though offence

against the public servant do not come with in the purview of Sec. 195(a).

Where a false information is given to the Inspector General of Police, he would

be the public servant concerned and not the Station Officer of the particular police

station to whom the complaint is sent for investigation since a complaint which was

filed before the subordinate to him is not a complaint.

Where an order was promulgated under section 144 of Cr. P.C. by a public

servant is disobeyed, the complaint by such public servant is valid though he is not

personally present on the date of promulgation.

In respect of Section 193 IPC.

The court should not prefer a complaint for purgery unless there is some primafacie

proof that the alleged statement of evidence is intentionally false held in AIR 1976 SC

1367.

Where the alleged false statement is made before a police officer holding inquiry

U/Sec 161 and 162 of the code, the complaint for purgery cannot be made as there is no

legal obligation to speak truth in such cases. The deposition should be read as a whole

and a complaint should not be filed merely on the basis of certain isolated answers, the
 14

prosecution ought not be ordered unless the statements are absolutely irreconcilable

with each other. Mere contradiction does not amounts to falsehood. Eye witness in a

murder case in a Sessions Court deliberately going back upon his previous statement

and saying he had not seen the accused assaulted the deceased, then it is a fit case to

launch prosecution for purgery held in AIR 1957 AP 832.

PUBLIC SERVANT:

A peon of a court of justice whose duty to execute any judicial process and

ministerial and judicial public servants. For an offence of assault on a process

server in discharge of duties as the offence does not come under Sections 195/ 340

Cr.P.C a District Judge can certainly in his administrative capacity can file a

complaint and such complaint will be valid, held in

>> 1973 Andhra Weekly Reporter Page No.451.

SUBORDINATION OF PUBLIC SERVANTS:

Subordination of one public servant to another may arise either from express

enactment or from the fact the both belong to the same department one being

superior in rank to the other.

COMPLAINTS IN CASE OF OFFENCES MENTIONED IN CLAUSE A OF 195

OF CR. P.C:
 15

Where a complaint lodged with the Police is found to be false but, before the

police report of the investigation, the complaint or information is repeated before

the court either in the form of a complaint or in the form of a petition impugning the

police investigation and asking for inquiry by the court which also amounts to a

complaint.

In Law, a prosecution under section 182 of IPC should not be launched before

the complaint if judicially disposed by this court.

ANY PROCEEDINGS CLAUSE (b),(i ) and( ii ) :

The complaint can only be by a court in respect of offence specified in CLAUSE (b),

(i) and( ii ) when it is committed in or in relation to any proceedings before such court.

The proceedings need not be a judicial may be before the Revenue court. Where the

offence of perjury is committed at the time of passing an exparte decree in a suit the

court trying the suit after setting aside the exparte decree is competent to order

prosecution.

The following have been held to a proceedings in court:

a) execution proceedings

b) proceedings under section 83 of TP Act.

c) further evidence taken by sub ordinate court when case is remitted by the appellate

court

d) proceedings before an arbitrator appointed in appending suit.

e) proceedings directing the return of the plaint and presentation in the proper court.
 16

f) proceedings before a liquidator appointed by the court for the winding up of a

company

In relation to any proceedings, to attract the application of clause (b)(i) offence if

not alleged to be committed in a proceeding in a court must at least be in relation to

the proceedings in court.

Even in relation to offences which are not enumerated under section 195 of Cr.

P.C. if the court have been opined that such offence has been committed in relation

to any proceedings in any court law does not prevent making a complaint by that

court before competent court.

The expression in relating to occurring in Sec. 195(i)(b) means a nexus for the

offence alleged against the said person.

PROSECUTION FOR GIVING OR FABRICATING FALSE EVIDENCES:

Magistrate has no jurisdiction to entertain a complaint by the private person to

the offence under section 193 of IPC in view of the bar under section 195. Where

an application is made to a court for the prosecution of a person for giving false

evidence in such court and application based on the fact that the statement made in

the court is contradicted by a letter written by the persons pleader the court is

entitled to call for the letter to see whether it contradicts the statement made for the

applicability of the section it is necessary that it should have been actually used in

such proceedings.
 17

Where a judicial proceedings are pending the police report under section 173

was submitted containing offence of intentionally giving or fabricating false

evidence including conspiracy to create false evidence the prohibition contained in

sub clause I and iii of clause b of 195 (1) would be applicable for taking

cognizance of the said offence on the basis of that report.

The offence of fabricating of false evidence for use in any stage of a judicial

proceeding is complete as soon as the fabricating is complete. Even if the judicial

proceedings in which the document was intended to be used may not have commenced

the offence is complete on fabrication.

Offences committed in respect of documents produced or given in evidence i.e.,

sub section I clause (b) (ii) of Sec. 195.

The offence should have been committed by a party to the proceedings in court

and such offence in respect of document produced are given in evidence. Where any

court is of the opinion that will be expedient in the interest of justice to hold on

enquiry that enquiry should be made into.

The section 195(i)(b)(ii) Cr. P.C. would be attracted only when the offences

enumerated in the said provision have been committed with respect to a document

after it has been produced or given in evidence in a proceedings in any court

during the time when the document was in custodia legis.

 18

Of any offence described in Sec. 463 (b)(ii) the words any offence described in

Sec. 463 of IPC means all forms of forgery described therein though they may be

punishable under different sections of the court, the clause will apply to an offence

under section 465,466,467 and 468 of IPC as they all described in sec.463.

WHO CAN MAKE A COMPLAINT UNDER CLAUSE (b)(i)(ii):

It is only the court in or in relation to whose proceedings the offence is

committed or the court to which such court is subordinate within the meaning of

subsection IV i.e., competent to make a complaint in respect of the offences

mentioned reported in AIR 1964 SC 1154.

Where there are several judges presiding over the same court any one of the

judges can order a complaint to be filed with regarding to the offence committed in

proceedings of the court. Thus, one Judge of the High Court is competent to make a

complaint regarding to the offence committed before another Judge of High Court

especially when the latter has seized the hold office reported in AIR 1937 Madras

716.

If a case or proceedings has been before various courts and an offence is alleged to

have been committed in that proceedings or case that the all courts have jurisdiction to

make the complaint.

Sub-ordinates where appeal lies to more than one court priviso (a) a subordinate

judge is subordinate to District Judge where appeal lies from the decree of the

former to the later.

 19

The nature of the proceedings must be taken into account but once the genus of

proceedings is determined the hierarchy of the superior court will be determined.

The section precludes the officers presiding over a court for making a complaint as

to an offence falling U/Sec 195. It is open to the court to include other offences which

form part of the same transaction. Although if such offence is a distinctive offence there

is no objection for taking cognizance held in AIR 1956 SC 153.

Section 195(i)(b)(ii) Cr.P.C would be attracted only when offences enumerated in

provision have been committed with respect of a document after it has been produced or

given in evidence in a proceeding in any court held in AIR 2008 SC 895.

If any photocopy is produced in a court and not the original one, in such case bar

U/Sec 195 (1) (b) (ii) is not attracted and bar would apply when original copy is

produced into court and Section 340 is not applicable to the offences mentioned U/Sec

195 (1)(a) and it applicable to (1)(b) only.

Obstruction to an advocate commissioner appointed by the civil court is not an

offence falling of any section in the penal code mentioned in Sec. 195(1)(b) and the said

offence falls under 195(a). In such cases, the provisions of Sec. 340 Cr. P.C. are not at

all attracts held in 1994 APLJ (criminal) 506.

In or in relation to a proceedings in the court – meaning- bail proceedings are part

of subsequent proceedings commencing on presentation of challan/charge sheet held in

AIR 1981 Supreme Court 22.

When upon application made to it in this behalf or otherwise:

 20

The court can take action under the Section either the suo motto or upon application

made to it by a private person. In respect of offences affecting administration of Justice

held in AIR 2003 Supreme Court 541, as such the application need not be necessary

made by a party to proceedings in respect of which the offence has been committed.

The enquiry contemplated U/Sec 340 CrPC is an enquiry by the prosecution court

itself and it is regarding the offence which appears to have been committed since it

postulates that the court itself has to make preliminary enquiry into the matter and

thereafter make/file a complaint before the appropriate court where there is a sufficient

documentary evidence on record, in such a condition no oral evidence is required and

the court holding inquiry is a discretionary in its nature. The nature, method and extent

of the inquiry are entirely discussed as held in AIR 1926, Madras 1008.

The court is not prevented from conducting such inquiry to come to its own finding

after considering all the evidence before it as to whether the alleged offence has been

committed or not.

In case of an offence in producing forged document in evidence in court unless a

primafacie established that the original forged document was produced in the court, the

court would not proceeded with inquiry.

The Section requires only such inquiry as the court may think necessary, where no

inquiry is necessary or there is nothing to show that an inquiry would have put the court

in a better position for dealing with the case an order without inquiry is not bad.
 21

Where the incident relating to the offence took place outside of the court and Judge

could not have knowledge of it and order without inquiry is bad.

Before making an inquiry or complaint U/Sec 340 there is no necessary for the court

to issue notice to the person alleged to have committed. When an application Under this

section court issues notice to the person proceeded against hears him and ultimately

decides to file a complaint against him, there is no notice 2nd time to showcause.

It is Expedient in the interest of Justice that an inquiry should be Made:

The court taking cognizance or action against the person under this section in the

interest of Justice that an inquiry should be made in the interest of justice for the offence

alleged to have committed held in 1998 CrLJ 4756.

WITHDRAWAL OF THE COMPLAINT FILED BY THE PUBLIC SERVANT:

Where a public servant whether he is a court or not files a complaint in respect

of an offence falling under clause (a) of 195 there is no appeal but, sub section 2

enables an authority to which such public servant is administratively subordinates

to withdraw the complaint.

APPEAL:

No appeal lies from an order of public servant under clause (a) of subsection (i)

refusing to file a complaint for an offence referred in that clause.

REVISION: Where a subordinate judge declined to make a complaint under sub

section 1(a) of sec.195 in respect of an offence alleged to have been committed

against a peon of the court executing a process of the court no revision lies.
 22

CONCLUSION

Section 340 Cr.PC provides the procedure to be followed in the case of complaints by

the courts in respect of the offences mentioned in Section 195(1)(b) and the

responsibility to launch a prosecution just upon the court and the court ordering

prosecution would do so in the larger interest of justice and not just to gratify the

demand of grieved party who is a private person bent upon revenge against his

opponent. What is incumbent upon a court to record its opinion that it is expedient in

the interest of Justice. Where the wording of the order satisfies the said requirement and

the power U/sec 340 is not an absolute one and no prosecution ought to be directed

unless there is a reasonable probability of conviction. The court need not and should not

decide the question of guilt or innocence of the party against whom proceedings are

taken.

Where the Sub-ordinate court has not choosen to take action under sub Section (1) and

prefer a complaint and at the same time has not rejected an application for making such

complaint, the superior court can take action under Sub Section (2) of the Section and

the complaint under the Section cannot be considered to have been rejected so long as it

is pending and hence where an application is made to the court and remains pending

without being rejected, the superior court is competent to take action. The effect of
 23

complaint under this section removes the bar U/Sec 195. A civil court acting U/Sec 195

Cr.P.C. is not a criminal court yet if it orders an application U/Sec 340 Cr.P.C for

preparing and instituting a complaint under 190 CrPC for offences U/Sec 193, 195,

468, and 470 of IPC. The civil court taking action under this section does not act as a

criminal court and the person against whom proceedings are taken is not an accused

persons but it constitute a prosecution for the purpose of finding an action for Malicious

prosecution. The provisions of the section are self contained and exhaustive. The power

of making complaint cannot be exercised by anyone except the court before which the

offence has been committed or a court to which appeals to the court to which ordinarily

lie.

SOURCE:

* AIR MANUAL - CODE OF CRIMINAL PROCEEDINGS