CRIMINAL JUSTICE SYSTEM IN INDIA- ITS FUNCTIONARIES

The Code of Criminal Procedure is a comprehensive and exhaustive procedural law for
conducting criminal trials. While drafting the Code, the following three basic considerations
have been kept in mind, viz.—
5 (a) That an accused person should get a fair trial in accordance with the accepted principles
of natural justice;
(b) That every effort should be made to avoid delay in investigation and trial, which is
harmful, not only to the individual involved, but also to the society;
(c) That the procedure should not be complicated, and should, to the utmost extent possible,
10 ensure a fair deal to the poorer sections of the community.

Subramaniam Swamy and ors. vs. Raju Thru Members, Juvenile Justice Board and
anr. (2013) 10 SCC 465

Objectives
1. To understand Criminal Justice System in India
2. To appreciate the principle of locus standi in Criminal Law
3. To understand the contours and principles of Fair Trial

JUDGMENT matter against the first Respondent, the

Ranjan Gogoi, J.
Should the adjudication sought for by the
Petitioner be refused at the threshold on
the basis of the fairly well established legal
15 proposition that a third party/stranger does
not have any right to participate in a
criminal prosecution which is primarily the
function of the State. The aforesaid
question arises in the following facts and
20 circumstances.
On 16.12.2012, a ghastly incident of gang
rape took place in a moving bus in the
streets of Delhi. In connection with the
25 said incident six accused were arrested on
22.12.2012, one of whom, namely, the first
Respondent in the present special leave
petition was a juvenile on the date of the
occurrence of the crime. The victim of the
30 offence died on 29.1.2013. While the
Juvenile Justice Board (hereinafter for
short "the Board") was in seisin of the
Petitioners in the special leave petition
35 approached the Board seeking
impleadment in the proceedings before the
Board and an interpretation of the
provisions of the Juvenile Justice (Care
and Protection of Children) Act, 2000
40 (hereinafter for short 'the JJ Act') so as to
enable the prosecution of the first
Respondent in a regular criminal court.
According to the Petitioners while the
Board did not pass any written orders in
45 the matter it had expressed its inability to
decide the question of law brought before
it and directed the Petitioners to approach
a higher Court. Accordingly, on 18.1.2013
the Petitioners filed a public interest
50 litigation in the High Court of Delhi with
the following prayers.
(i) Laying down an authoritative
interpretation of Sections 2(l) and 2(k)
55 of the Act that the criterion of 18 years
set out therein does not comprehend
cases grave offences in general and of
 heinous crimes against women in
particular that shakes the roots of
humanity in general.
5 (ii) That the definition of offences
under Section 2(p) of the Act be
categorized as per the grievousness of
the crime committed and the threat to
public safety and order.
10 noticed, naturally the scope of the present
(iii) That Section 28 of the Act be
interpreted in terms of its definition,
i.e., Alternative Punishment and
serious offences having minimum
15 punishment of 7 years imprisonment
and above be brought outside its
purview and the same should be tried
by an Ordinary Criminal Court.
20 (iv) Incorporating in the Act, the
international concept of age of
Criminal Responsibility and diluting
the blanket immunity provided to the
juvenile offender on the basis of age.
25 70 maintainability. The gravamen of the
(v) That the instant Act be read down
in consonance with the rights of victim
as protected by various Fundamental
Rights including Article 14 and 21 of
30 the Constitution of India.
(vi) Pass such other and further order
or orders as this Hon'ble Court may
deem fit and proper in the facts and
35 circumstances of the case.
By order dated 23.1.2013 the High Court
declined to answer the questions raised on
the ground that the Petitioners had an
40 alternative remedy under the JJ Act against
the order as may have been passed by the
Board. On the very next day, i.e., on
24.1.2013 the Board dismissed the
application filed by the Petitioners seeking
45 impleadment and the other reliefs. On
19.2.2013 the Petitioners had approached
this Court seeking special leave to appeal
against the order dated 23.1.2013 passed
by the High Court of Delhi dismissing the
50 public interest litigation.
The prayers made by the Petitioners in the
public interest litigation before the High
Court not having been touched upon in any
55 manner whatsoever, on the ground already
special leave petition, if it is to be
entertained, must be understood to be co-
extensive with the questions arising before
60 the High Court.
At the very outset, Mr. Sidharth Luthra,
learned Additional Solicitor General
appearing for the Union as well as Mr. A.J.
65 Bhambhani, learned Counsel for the first
Respondent has raised a vehement plea
that this special leave petition should not
be entertained as the same ex facie
disclose serious doubts with regard to its
contentions raised by the learned Counsels
for the Respondents is that the
administration of criminal justice in India
does not envisage any role for a third
75 party/stranger and it is the State which
represents the victim of a crime to
vindicate the rights that may have been
violated and the larger social interest in
enforcing and maintaining the criminal law
80 system. In this regard learned Counsels
have placed reliance on several decisions
of this Court, which will be noticed
hereinafter, wherein the aforesaid legal
principle has been stated and reiterated.
85
To counter the arguments advanced on the
plea of maintainability raised by the
Respondents, the first Petitioner - Dr.
Subramanian Swamy, who had appeared
90 in person and were authorized to do so on
their behalf by the other Petitioners, has
 submitted that the prayers made before the
High Court which would now require
consideration of this Court make it clear
that the Petitioners neither seek
5 impleadment in the proceeding pending
before the Board against the first
Respondent nor the payers made have any
specific bearing to the criminal acts
committed by the first Respondent.
10 According to the first Petitioner, reference
to the 16th December, 2012 incident and
to the role of the first Respondent in the
said incident is merely incidental and
illustrative. The approach to the High
15 Court and to this Court has been made in
view of the larger public interest inherent
in the question raised by the Petitioners.
All that the Petitioners seek is an
authoritative pronouncement on the
20 provisions of the JJ Act and its
applicability to juveniles within the
meaning of the said Act who commit
certain categories of extremely heinous
and depraved criminal acts. On merits, the
25 first Petitioner has contended that the
provisions of the JJ Act ought to be read
down by this Court to provide for
categorization of the offences committed
by a juvenile depending on depravity
30 thereof and for the trial of a juvenile for
the most serious and heinous of such
offences by treating such acts as offences
under Indian Penal Code. We have
noticed, in brief, the contentions of the
35 Petitioners on merits though we had
confined the hearing that took place on
14.8.2013 to the question of
maintainability of the special leave petition
leaving the merits of the questions and
40 issues raised open for consideration in the
event it becomes so necessary.
The administration of criminal justice in
India can be divided into two broad stages
45 at which the machinery operates. The first
is the investigation of an alleged offence
leading to prosecution and the second is
the actual prosecution of the offender in a
Court of Law. The jurisprudence that has
50 evolved over the decades has assigned the
primary role and responsibility at both
stages to the State though we must hasten
to add that in certain exceptional situations
there is a recognition of a limited right in a
55 victim or his family members to take part
in the process, particularly, at the stage of
the trial. The law, however, frowns upon
and prohibits any abdication by the State
of its role in the matter at each of the
60 stages and, in fact, does not recognize the
right of a third party/stranger to participate
or even to come to the aid of the State at
any of the stages. Private funding of the
investigative process has been disapproved
65 by this Court in Navinchanda N. Majithia
v. State of Meghalaya and Ors. (2000) 8
SCC 323 and the following observations
amply sum up the position:
70 Financial crunch of any State treasury is
no justification for allowing a private party
to supply funds to the police for
conducting such investigation.
Augmentation of the fiscal resources of the
75 State for meeting the expenses needed for
such investigations is the lookout of the
executive. Failure to do it is no premise for
directing a complainant to supply funds to
the investigating officer. Such funding by
80 interested private parties would vitiate the
investigation contemplated in the Code. A
vitiated investigation is the precursor for
miscarriage of criminal justice. Hence any
attempt, to create a precedent permitting
85 private parties to supply financial
assistance to the police for conducting
investigation, should be nipped in the bud
 itself. No such precedent can secure
judicial imprimatur.
Coming to the second stage of the system
5 of administration of criminal justice in
India, this Court in Thakur Ram and Ors.
v. The State of Bihar AIR 1966 SC 911,
while examining the right of a third party
to invoke the revisional jurisdiction under
10 the Code of 1898, had observed as under:
The criminal law is not to be used as an
instrument of wrecking private vengeance by
an aggrieved party against the person who,
15 according to that party, had caused injury to
it. Barring a few exceptions, in criminal
matters the party who is treated as the
aggrieved party is the State which is the
custodian of the social interests of the
20 community at large and so it is for the State to
take all the steps necessary for bringing the
person who has acted against the social
interests of the community to book.
25 In Panchhi and Ors. v. State of U.P. (1998)
7 SCC 177 this Court have refused leave
to the National Commission for Women to
intervene in an appeal before this Court
wherein a young mother was facing
30 execution of the capital sentence imposed
on her on the ground that the National
Commission for Women or for that matter
any other organization cannot have locus
standi in a criminal case.
35 action initiated by the Petitioners non-
This Court has also been slow in
approving third party intervention in
criminal proceedings on grounds of larger
public interest. In Janta Dal v. H.S.
40 Chowdhary and Ors. (1992) 4 SCC 305
the public interest litigation Petitioner was
held to have no locus to bring a public
interest litigation seeking certain directions
in a matter of issuance of a letter of
45 rogatory/request to the Swiss Government
in an investigation that was then pending
in what came to be popularly known as the
Bofors case. Similarly, in Simranjit Singh
Mann v. Union of India and Anr. (1992) 4
50 SCC 653 this Court had declined leave to
the President of a recognized political
party, namely, Akali Dal (M) to challenge,
under Article 32 of the Constitution, the
conviction and sentence of the accused
55 found guilty of the offence under Section
302 Indian Penal Code. The view taken by
this Court in Simranjit Singh Mann (supra)
seems to be based on the fact that
Petitioner before this Court was a total
60 stranger to the offence committed by the
accused whereas in Janta Dal (supra) the
public interest litigation Petitioner was
found to have a personal and private
interest in the matter. [para 119 of the
65 Report in Janta Dal (supra)]
Adverting to the facts of the present case,
undoubtedly, in the pleadings of the
Petitioners there is a reference to the first
70 Respondent, i.e., the juvenile who is
alleged to have committed the offence.
There can also be no manner of doubt that
if the provisions of the JJ Act are to be
construed in the manner that the
75 Petitioners seek the first Respondent will
be affected. The Petitioners are in no way
connected with the incident in question.
But would the above, by itself, render the
80 maintainable on the ground that they have
no locus to raise the questions that have
arisen being total strangers to the alleged
crime, as contended by the Respondents on
the strength of the principles noticed
85 above?
The Petitioners do not seek impleadment
in the inquiry against the first Respondent
presently pending before the Board or in
 the trial to which he may be relegated in
the event the questions of law are
answered in favour of the Petitioners and
that too within the requisite time span.
5 Such a prayer, i.e., for impleadment was
raised and decided against the Petitioners
by the Board. The said prayer had not been
pursued before the High Court. Neither the
same has been raised before us. All that
10 the Petitioners seek is an authoritative
pronouncement of the true purport and
effect of the different provisions of the JJ
Act so as to take a juvenile out of the
purview of the said Act in case he had
15 committed an offence, which, according to
the Petitioners, on a true interpretation of
Section 2(p) of the Act, is required to be
identified and distinguished to justify a
separate course of action, namely, trial in a
20 regular Court of Law as a specific offence
under the Penal Code and in accordance
with the provisions of the Code of
Criminal Procedure. The adjudication that
the Petitioners seek clearly has
25 implications beyond the case of the first
Respondent and the proceedings in which
he is or may be involved. In fact,
interpretation of the relevant provisions of
the JJ Act in any manner by this Court, if
30 made, will not be confined to the first
Respondent alone but will have an effect
on all juveniles who may come into
conflict with law both in the immediate
and distant future. If we are to view the
35 issue of maintainability of the present
proceeding from the aforesaid perspective
reference to the case of the first
Respondent in the pleadings must be
understood to be illustrative. If this Court
40 is to interpret the provisions of the Act in
the manner sought by the Petitioners, the
possible effect thereof in so far as the first
Respondent is concerned will pale into
insignificance in the backdrop of the far
45 reaching consequences that such an
interpretation may have on an
indeterminate number of persons not
presently before the Court. We are,
therefore, of the view that it would be
50 appropriate for us hold that the special
leave petition does not suffer from the vice
of absence of locus on the part of the
Petitioners so as to render the same not
maintainable in law. We, therefore, will
55 proceed to hear the special leave petition
on merits and attempt to provide an answer
to the several questions raised by the
Petitioners before us.
60 We, therefore, issue notice in this special
leave petition and permit the Respondents
to bring their respective additional
pleadings on record, if any.
65 Points for Discussion
• Objects and functions of criminal
Procedure Code. Why
procedural aspect of law is
70 equally important to that of
substantive law.
• Critically analysis of
classification of offences as
“cognizable” and “non-
75 cognizible” and its
• Principles of fair trial vis-à-vis
speedy disposal of case
• Locus standi of person injured,
aggrieved or affected
 Lalita Kumar vs. Govt. of UP & Ors.

(2014) 2 SCC 1

Objectives

1. True Meaning and Scope of S. 154 of CrPC

2. Whether registration of FIR is mandatory in cognizable offences
3. Whether preliminary enquiry should precede registration of FIR
4. What is the difference between General Diary and FIR
5. Legislative History of S. 154 of the Code
6. To discuss Section 41, 154 & 156 of the Code
7. To understand what is Police Report u/s 173
8. Promptness in filing FIR – Delay in filing – Impact thereof
9. Whether compulsory FIR violates Article 14 & 21 of the Constitution
10. Two Kinds of FIR under the Code
11. Power, Role and Duty of Police in Respect of FIR
12. Meaning of term ‘inquiry’, ‘preliminary inquiry’
13. Punishment for not registering FIR – Ins. of S. 166 A in IPC

JUDGMENT concerned who did not take any action on

P. Sathasivam, C.J.I.
5 The important issue which arises for
consideration in the referred matter is
whether "a police officer is bound to
register a First Information Report (FIR)
upon receiving any information relating to
10 commission of a cognizable offence under
Section 154 of the Code of Criminal
Procedure, 1973 (in short 'the Code') or the
police officer has the power to conduct a
"preliminary inquiry" in order to test the
15 veracity of such information before
registering the same?"
The present writ petition, under
Article 32 of the Constitution, has been
filed by one Lalita Kumari (minor) through
20 her father, viz., Shri Bhola Kamat for the
issuance of a writ of Habeas Corpus or
direction(s) of like nature against the
Respondents herein for the protection of his
minor daughter who has been kidnapped.
25 The grievance in the said writ petition is
that on 11.05.2008, a written report was
submitted by the Petitioner before the
officer in-charge of the police station
30 the same.
Thereafter, when the Superintendent of
Police was moved, an FIR was registered.
According to the Petitioner, even thereafter,
steps were not taken either for
35 apprehending the accused or for the
recovery of the minor girl child.
In order to answer the main issue posed
before this Bench, it is useful to refer the
following Sections of the Code:
40 154. Information in cognizable cases.-- (1)
Every information relating to the commission of
a cognizable offence, if given orally to an
officer in charge of a police station, shall be
reduced to writing by him or under his
45 direction, and be read over to the informant;
and every such information, whether given in
writing or reduced to writing as aforesaid,
shall be signed by the person giving it, and the
substance thereof shall be entered in a book to
50 be kept by such officer in such form as the State
Government may prescribe in this behalf.
(2) A copy of the information as recorded under
Sub-section (1) shall be given forthwith, free of
cost, to the informant.

6
 (3) Any person aggrieved by a refusal on the
part of an officer in charge of a police station
to record the information referred to in Sub-
section (1) may send the substance of such
5 information, in writing and by post, to the
Superintendent of Police concerned who, if
satisfied that such information discloses the
commission of a cognizable offence, shall either
investigate the case himself or direct an
10 investigation to be made by any police officer
subordinate to him, in the manner provided by
this Code, and such officer shall have all the
powers of an officer in charge of the police
station in relation to that offence.
15 156. Police officer's power to investigate
cognizable case. (1) Any officer in charge of a
police station may, without the order of a
Magistrate, investigate any cognizable case
which a Court having jurisdiction over the
20 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
25 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
30 above-mentioned.
157. Procedure for investigation: (1) If, from
information received or otherwise, an officer in
charge of a police station has reason to suspect
the commission of an offence which he is
35 empowered under Section 156 to investigate, he
shall forthwith send a report of the same to a
Magistrate empowered to take cognizance of
such offence upon a police report and shall
proceed in person, or shall depute one of his
40 subordinate officers not being below such rank
as the State Government may, by general or
special order, prescribe in this behalf, to
proceed, to the spot, to investigate the facts and
circumstances of the case, and, if necessary, to
45 take measures for the discovery and arrest of
the offender:
Provided that- (a) when information as to the
commission of any such offence is given against
any person by name and the case is not of a
50 serious nature, the officer in charge of a police
station need not proceed in person or depute a
subordinate officer to make an investigation on
the spot;
(b) if it appears to the officer in charge of a
55 police station that there is no sufficient ground
for entering on an investigation, he shall not
investigate the case.
Provided further that in relation to an offence
of rape, the recording of statement of the victim
60 shall be conducted at the residence of the
victim or in the place of her choice and as far
as practicable by a woman police officer in the
presence of her parents or guardian or near
relatives or social worker of the locality.
65 (2) In each of the cases mentioned in Clauses
(a) and (b) of the proviso to Sub-section (1), the
officer in charge of the police station shall state
in his report his reasons for not fully complying
with the requirements of that subsection, and,
70 in the case mentioned in Clause (b) of the said
proviso, the officer shall also forthwith notify to
the informant, if any, in such manner as may be
prescribed by the State Government, the fact
that he will not investigate the case or cause it
75 to be investigated.
The issues before the Constitution Bench of
this Court arise out of two main conflicting
areas of concern, viz..
(i) Whether the immediate non-registration
80 of FIR leads to scope for manipulation by
the police which affects the right of the
victim/complainant to have a complaint
immediately investigated upon allegations
being made; and
85 (ii) Whether in cases where the
complaint/information does not
clearly disclose the commission of a
cognizable offence but the FIR is
compulsorily registered then does it
90 infringe the rights of an accused.
Discussion:
The FIR is a pertinent document in the
criminal law procedure of our country and
7
 its main object from the point of view of
the informant is to set the criminal law in
motion and from the point of view of the
investigating authorities is to obtain
5 information about the alleged criminal
activity so as to be able to take suitable
steps to trace and to bring to book the
guilty.
Historical experience has thrown up cases
10 from both the sides where the grievance of
the victim/informant of non-registration of
valid FIRs as well as that of the accused of
being unnecessarily harassed and
investigated upon false charges have been
15 found to be correct.
An example of the first category of cases is
found in State of
Maharashtra v. Sarangdharsingh
Shivdassingh Chavan and Anr (2011) 1
20 SCC 577 wherein a writ petition was filed
challenging the order of the Collector in the
District of Buldhana directing not to
register any crime against Mr. Gokulchand
Sananda, without obtaining clearance from
25 the District Anti-Money Lending
Committee and the District Government
Pleader. From the record, it was revealed
that out of 74 cases, only in seven cases,
charge sheets were filed alleging illegal
30 moneylending. This Court found that upon
instructions given by the Chief Minister to
the District Collector, there was no
registration of FIR of the poor farmers. In
these circumstances, this Court held the
35 said instructions to be ultra vires and
quashed the same. It is argued that cases
like above exhibit the mandatory character
of Section 154, and if it is held otherwise, it
shall lead to grave injustice.
40 However, on the other hand, there are a
number of cases which exhibit that there
are instances where the power of the police
to register an FIR and initiate an
investigation thereto are misused where a
45 cognizable offence is not made out from the
contents of the complaint. A significant
case in this context is the case of Preeti
Gupta v. State of Jharkhand (2010) 7
SCC 667 wherein this Court has expressed
50 its anxiety over misuse of Section 498A of
the Indian Penal Code, 1860 (in short 'the
Indian Penal Code') with respect to which a
large number of frivolous reports were
lodged. This Court expressed its desire that
55 the legislature must take into consideration
the informed public opinion and the
pragmatic realities to make necessary
changes in law.
The above said judgment resulted in the
60 243rd Report of the Law Commission of
India submitted on 30th August, 2012. The
Law Commission, in its Report, concluded
that though the offence under
Section 498A could be made
65 compoundable, however, the extent of
misuse was not established by empirical
data, and, thus, could not be a ground to
denude the provision of its efficacy. The
Law Commission also observed that the
70 law on the question whether the registration
of FIR could be postponed for a reasonable
time is in a state of uncertainty and can be
crystallized only upon this Court putting at
rest the present controversy.
75 In order to arrive at a conclusion in the light
of divergent views on the point and also to
answer the above contentions, it is pertinent
to have a look at the historical background
of the Section and corresponding provisions
80 that existed in the previous enactments of
the Code of Criminal Procedure.
Code of Criminal Procedure, 1861
139. Every complaint or information
preferred to an officer in charge of a police
85 station, shall be reduced into writing and the
substance thereof shall be entered in a diary to
be kept by such officer, in such form as shall
be prescribed by the local government.
Code of Criminal Procedure, 1872
90 112. Every complaint preferred to an officer
in charge of a police station, shall be reduced
8
 into writing, and shall be signed, sealed or
marked by the person making it; and the
substance thereof shall be entered in a book to
be kept by such officer in the form prescribed
5 by the local government.
Code of Criminal Procedure, 1882
154. Every information relating to the
commission of a cognizable offence if given
orally to an officer in charge of a police
10 station, shall be reduced to writing by him, or
under his direction, and be read over to the
informant; and every such information,
whether given in writing or reduced to writing
as aforesaid, shall be signed by the person
15 giving it, and the substance thereof shall be
entered in a book to be kept by such form as
the government may prescribe in this behalf.
Code of Criminal Procedure, 1898
154. Every information relating to the
20 commission of a cognizable offence if given
orally to an officer in charge of a police
station, shall be reduced to writing by him or
under his direction, and be read over to the
informant; and every such information,
25 whether given in writing or reduced to writing
as aforesaid, shall be signed by the person
giving it, and the substance thereof shall be
entered in a book to be kept by such officer in
such form as the Government may prescribe
30 in this behalf.
Code of Criminal Procedure, 1973
154. Information in cognizable
cases: 1) Every information relating
to the commission of a cognizable
35 offence, it given orally to an officer
in charge of a police station, shall
be reduced to writing by him or
under his direction, and be read
over to the informant; and every
40 such information, whether given in
writing or reduced to writing as
aforesaid, shall be signed by the
person giving it, and the substance
thereof shall be entered in a book to
45 be kept by such officer in such form
as the State Government may
prescribe in this behalf.
[Provided that if the information is
given by the woman against whom
50 an offence under
Sections 326A, 326B, 354, 354A, 3
54B, 354C, 354D, 376, 376A, 376B
, 376C, 376D, 376E or
Section 509 of the Indian Penal
55 Code is alleged to have been
committed or attempted, then such
information shall be recorded by a
woman police officer or any woman
officer:
60 Provided further that:
(a) in the event that the
person against whom an
offence under
Sections 354,354A, 354B, 3
65 54C, 354D, 376, 376A, 376
B, 376C, 376D, 376E or
Section 509 of the Indian
Penal code is alleged to
have been committed or
70 attempted is temporarily or
permanently mentally or
physically disabled then
such information shall be
recorded by a police officer,
75 at the residence of the
person seeking to report
such offence or at a
convenient place of such
person's choice, in the
80 presence of an interpreter or
a special educator, as the
case may be;
(b) the recording of such
information shall be
85 videographed;
(c) the police officer shall
get the statement of the
person recorded by a
Judicial Magistrate under
9
 Clause (a) of Sub-section
(5A) of Section 164 as soon
as possible.]
(Inserted by Section 13 of 'The Criminal
5 Law (Amendment) Act, 2013 w.e.f.
03.02.2013)
(2) A copy of the information as
recorded under Sub-section (1)
shall be given forthwith, free of
10 cost, to the informant.
(3) Any person aggrieved by a
refusal on the part of an officer in
charge of a police station to record
the information referred to in Sub-
15 section (1) may send the substance
of such information, in writing and
by post, to the Superintendent of
Police concerned who, if satisfied
that such information discloses the
20 commission of a cognizable
offence, shall either investigate the
case himself or direct an
investigation to be made by any
police officer subordinate to him, in
25 the manner provided by this Code,
and such officer shall have all the
powers of an officer in charge of
the police station in relation to that
offence.
30 A perusal of the above said provisions
manifests the legislative intent in both old
codes and the new code for compulsory
registration of FIR in a case of cognizable
offence without conducting any Preliminary
35 Inquiry.
As such, a significant change that took
place by way of the 1898 Code was with
respect to the placement of Section 154,
i.e., the provision imposing requirement of
40 recording the first information regarding
commission of a cognizable offence in the
special book prior to Section 156, i.e., the
provision empowering the police officer to
investigate a cognizable offence. As such,
45 the objective of such placement of
provisions was clear which was to ensure
that the recording of the first information
should be the starting point of any
investigation by the police. In the interest of
50 expediency of investigation since there was
no safeguard of obtaining permission from
the Magistrate to commence an
investigation, the said procedure of
recording first information in their books
55 along with the signature/seal of the
informant, would act as an "extremely
valuable safeguard" against the
excessive, mala fide and illegal exercise of
investigative powers by the police.
60 Provisions contained in Chapter XII of the
Code deal with information to the police
and their powers to investigate. The said
Chapter sets out the procedure to be
followed during investigation. The
65 objective to be achieved by the procedure
prescribed in the said Chapter is to set the
criminal law in motion and to provide for
all procedural safeguards so as to ensure
that the investigation is fair and is not mala
70 fide and there is no scope of tampering with
the evidence collected during the
investigation.
Interpretation of Section 154:
It may be mentioned in this connection that
75 the first and foremost principle of
interpretation of a statute in every system of
interpretation is the literal rule of
interpretation. All that we have to see at the
very outset is what does the provision say?
80 As a result, the language employed in
Section 154 is the determinative factor of
the legislative intent. A plain reading of
Section 154(1) of the Code provides that
any information relating to the commission
85 of a cognizable offence if given orally to an
officer-in-charge of a police station shall be
reduced into writing by him or under his
direction. There is no ambiguity in the
language of Section 154(1) of the Code.
90 The language of Section 154(1), therefore,
admits of no other construction but the
10
 literal construction.The legislative intent of
Section 154 is vividly elaborated in Bhajan
Lal (supra) which is as under:
30. The legal mandate enshrined in
5 Section 154(1) is that every information
relating to the commission of a "cognizable
offence" (as defined Under Section 2(c) of
the Code) if given orally (in which case it is
to be reduced into writing) or in writing to
10 "an officer incharge of a police station"
(within the meaning of Section 2(o) of the
Code) and signed by the informant should
be entered in a book to be kept by such
officer in such form as the State
15 Government may prescribe which form is
commonly called as "First Information
Report" and which act of entering the
information in the said form is known as
registration of a crime or a case.
20 At the stage of registration of a crime or a
case on the basis of the information
disclosing a cognizable offence in
compliance with the mandate of
Section 154(1) of the Code, the concerned
25 police officer cannot embark upon an
inquiry as to whether the information, laid
by the informant is reliable and genuine or
otherwise and refuse to register a case on
the ground that the information is not
30 reliable or credible. On the other hand, the
officer in charge of a police station is
statutorily obliged to register a case and
then to proceed with the investigation if he
has reason to suspect the commission of an
35 offence which he is empowered under
Section 156 of the Code to investigate,
subject to the proviso to Section157. (As
we have proposed to make a detailed
discussion about the power of a police
40 officer in the field of investigation of a
cognizable offence within the ambit of
Sections 156 and 157of the Code in the
ensuing part of this judgment, we do not
propose to deal with those sections in
45 extenso in the present context.) In case, an
officer in charge of a police station refuses
to exercise the jurisdiction vested in him
and to register a case on the information of
a cognizable offence reported and thereby
50 violates the statutory duty cast upon him,
the person aggrieved by such refusal can
send the substance of the information in
writing and by post to the Superintendent of
Police concerned who if satisfied that the
55 information forwarded to him discloses a
cognizable offence, should either
investigate the case himself or direct an
investigation to be made by any police
officer subordinate to him in the manner
60 provided by Sub-section (3) of
Section 154 of the Code.
It is, therefore, manifestly clear that if any
information disclosing a cognizable offence
is laid before an officer in charge of a
65 police station satisfying the requirements of
Section154(1) of the Code, the said police
officer has no other option except to enter
the substance thereof in the prescribed
form, that is to say, to register a case on the
70 basis of such information.
Consequently, the condition that is sine qua
non for recording an FIR under
Section 154 of the Code is that there must
be information and that information must
75 disclose a cognizable offence. If any
information disclosing a cognizable offence
is led before an officer in charge of the
police station satisfying the requirement of
Section 154(1), the said police officer has
80 no other option except to enter the
substance thereof in the prescribed form,
that is to say, to register a case on the basis
of such information. The provision of
Section 154 of the Code is mandatory and
85 the concerned officer is duty bound to
register the case on the basis of information
disclosing a cognizable offence. Thus, the
plain words of Section 154(1) of the Code
have to be given their literal meaning.
90 'Shall'
The use of the word "shall" in
Section 154(1) of the Code clearly shows
the legislative intent that it is mandatory to
register an FIR if the information given to
11
 the police discloses the commission of a
cognizable offence.
Therefore, the context in which the word
"shall" appears in Section 154(1) of the Code,
5 the object for which it has been used and the
consequences that will follow from the
infringement of the direction to register FIRs,
all these factors clearly show that the word
"shall" used in Section 154(1) needs to be
10 given its ordinary meaning of being of
"mandatory" character. The provisions of
Section 154(1) of the Code, read in the light
of the statutory scheme, do not admit of
conferring any discretion on the officer in-
15 charge of the police station for embarking
upon a preliminary inquiry prior to the
registration of an FIR. It is settled position of
law that if the provision is unambiguous and
the legislative intent is clear, the court need
20 not call into it any other rules of construction.
In view of the above, the use of the word
'shall' coupled with the Scheme of the Act
lead to the conclusion that the legislators
intended that if an information relating to
25 commission of a cognizable offence is
given, then it would mandatorily be
registered by the officer in-charge of the
police station. Reading 'shall' as 'may', as
contended by some counsel, would be
30 against the Scheme of the Code.
Section 154 of the Code should be strictly
construed and the word 'shall' should be
given its natural meaning.
In view of the above, we are satisfied that
35 Section 154(1) of the Code does not have
any ambiguity in this regard and is in clear
terms. It is relevant to mention that
Section 39 of the Code casts a statutory
duty on every person to inform about
40 commission of certain offences which
includes offences covered by Sections 121
to 126, 302, 64A, 382,392 etc., of the
Indian Penal Code. It would be incongruous
to suggest that though it is the duty of every
45 citizen to inform about commission of an
offence, but it is not obligatory on the
officer-incharge of a Police Station to
register the report. The word 'shall'
occurring in Section 39 of the Code has to
50 be given the same meaning as the word
'shall' occurring in Section 154(1) of the
Code.
'Book'/'Diary'
It is contented by learned ASG appearing
55 for the State of Chhattisgarh that the
recording of first information under
Section 154 in the 'book' is subsequent to
the entry in the General Diary/Station
Diary/Daily Diary, which is maintained in
60 police station. Therefore, according to
learned ASG, first information is a
document at the earliest in the general
diary, then if any preliminary inquiry is
needed the police officer may conduct the
65 same and thereafter the information will be
registered as FIR.
This interpretation is wholly unfounded.
The First Information Report is in fact the
"information" that is received first in point
70 of time, which is either given in writing or
is reduced to writing. It is not the
"substance" of it, which is to be entered in
the diary prescribed by the State
Government. The term 'General Diary' (also
75 called as 'Station Diary' or 'Daily Diary' in
some States) is maintained not under
Section 154 of the Code but under the
provisions of Section 44of the Police Act,
1861 in the States to which it applies, or
80 under the respective provisions of the
Police Act(s) applicable to a State or under
the Police Manual of a State, as the case
may be. Section 44 of the Police Act, 1861
is reproduced below:
85 44. Police-officers to keep diary.--It shall be
the duty of every officer in charge of a police-
station to keep a general diary in such form as
shall, from time to time, be prescribed by the
State Government and to record therein all
90 complaints and charged preferred, the names
of all persons arrested, the names of the
complainants, the offences charged against
them, the weapons or property that shall have
12
 been taken from their possession or otherwise,
and the names of the witnesses who shall
have been examined. The Magistrate of the
district shall be at liberty to call for any
5 inspect such diary.
It is pertinent to note that during the year
1861, when the aforesaid Police Act, 1861
was passed, the Code of Criminal
Procedure, 1861 was also passed.
10 Section 139 of that Code dealt with
registration of FIR and this Section is also
referred to the word "diary", as can be seen
from the language of this Section, as
reproduced below:
15 139. Every complaint or information
preferred to an officer in charge of a Police
Station, shall be reduced into writing, and the
substance thereof shall be entered in
a diary to be kept by such officer, in such
20 form as shall be prescribed by the local
government.
Thus, Police Act, 1861 and the Code of
Criminal Procedure, 1861, both of which
were passed in the same year, used the
25 same word "diary".
However, in the year 1872, a new Code
came to be passed which was called the
Code of Criminal Procedure, 1872.
Section 112 of the Code dealt with the issue
30 of registration of FIR and is reproduced
below:
112. Every complaint preferred to an officer
in charge of a Police station shall be reduced
into writing, and shall be signed, sealed, or
35 marked by the person making it; and the
substance thereof shall be entered in
a book to be kept by such officer in the form
prescribed by the Local Government.
It is, thus, clear that in the Code of Criminal
40 Procedure, 1872, a departure was made and
the word 'book' was used in place of 'diary'.
The word 'book' clearly referred to FIR
book to be maintained under the Code for
registration of FIRs.
45 The question that whether the FIR is to be
recorded in the FIR Book or in General
Diary, is no more res integra. This issue
has already been decided authoritatively by
this Court.
50 It is thus clear that registration of FIR is to
be done in a book called FIR book or FIR
Register. of course, in addition, the gist of
the FIR or the substance of the FIR may
also be mentioned simultaneously in the
55 General Diary as mandated in the
respective Police Act or Rules, as the case
may be, under the relevant State provisions.
The General Diary is a record of all
important transactions/events taking place
60 in a police station, including departure and
arrival of police staff, handing over or
taking over of charge, arrest of a person,
details of law and order duties, visit of
senior officers etc. It is in this context that
65 gist or substance of each FIR being
registered in the police station is also
mentioned in the General Diary since
registration of FIR also happens to be a
very important event in the police station.
70 Since General Diary is a record that is
maintained chronologically on day-today
basis (on each day, starting with new
number 1), the General Diary entry
reference is also mentioned simultaneously
75 in the FIR Book, while FIR number is
mentioned in the General Diary entry since
both of these are prepared simultaneously.
It is to be recorded in the FIR Book by
giving a unique annual number to each FIR
80 to enable strict tracking of each and every
registered FIR by the superior police
officers as well as by the competent court to
which copies of each FIR are required to be
sent.
85 'Information'
The legislature has consciously used the
expression "information" in
Section 154(1) of the Code as against the
expression used in Section 41(1)(a) and (g)
13
 where the expression used for arresting a
person without warrant is "reasonable
complaint" or "credible information". The
expression under Section 154(1) of the
5 Code is not qualified by the prefix
"reasonable" or "credible". The non
qualification of the word "information" in
Section 154(1) unlike in
Section 41(1)(a) and (g) of the Code is for
10 the reason that the police officer should not
refuse to record any information relating to
the commission of a cognizable offence on
the ground that he is not satisfied with the
reasonableness or credibility of the
15 information. In other words, reasonableness
or credibility of the said information is not
a condition precedent for the registration of
a case.
The above view has been expressed by this
20 Court in Bhajan Lal (supra) which is as
under:
32...in Section 154(1) of the Code, the
legislature in its collective wisdom has
carefully and cautiously used the expression
25 "information" without qualifying the same as
in Section 41(1)(a)or (g) of the Code wherein
the expressions, "reasonable complaint" and
"credible information" are used. Evidently,
the non-qualification of the word
30 "information" in Section 154(1) unlike in
Section 41(1)(a) and (g) of the Code may be
for the reason that the police officer should
not refuse to record an information relating to
the commission of a cognizable offence and
35 to register a case thereon on the ground that
he is not satisfied with the reasonableness or
credibility of the information. In other words,
'reasonableness' or 'credibility' of the said
information is not a condition precedent for
40 registration of a case. A comparison of the
present Section 154 with those of the earlier
Codes will indicate that the legislature had
purposely thought it fit to employ only the
word "information" without qualifying the
45 said word.
In Ram Lal Narang (supra), this Court held
as under:
Ordinarily, the right and duty of the
50 police would end with the
submission of a report under
Section 173(1) Code of Criminal
Procedure upon receipt of which it
was up to the Magistrate to take or
55 not to take cognizance of the
offence. There was no provision in
the 1898 Code prescribing the
procedure to be followed by the
police, where, after the submission
60 of a report under
Section 173(1) Code of Criminal
Procedure and after the Magistrate
had taken cognizance of the
offence, fresh facts came to light
65 which required further
investigation. There was, of course,
no express provision prohibiting the
police from launching upon an
investigation into the fresh facts
70 coming to light after the submission
of the report under
Section 173(1) or after the
Magistrate had taken cognizance of
the offence. As we shall presently
75 point out, it was generally thought
by many High Courts, though
doubted by a few, that the police
were not barred from further
investigation by the circumstance
80 that a report under
Section 173(1) had already been
submitted and a Magistrate had
already taken cognizance of the
offence. The Law Commission in
85 its 41st report recognized the
position and recommended that the
right of the police to make further
investigation should be statutorily
affirmed. The Law Commission
90 said:
14.23. A report under Section 173 is normally
the end of the investigation. Sometimes,
however, the police officer after submitting
the report under Section173 comes upon
95 evidence bearing on the guilt or innocence of
the accused. We should have thought that the
police officer can collect that evidence and
14
 send it to the Magistrate concerned. It
appears, however, that Courts have sometimes
taken the narrow view that once a final report
under Section 173 has been sent, the police
5 cannot touch the case again and cannot re-
open the investigation. This view places a
hindrance in the way of the investigating
agency, which can be very unfair to the
prosecution and, for that matter, even to the
10 accused. It should be made clear in
Section 173 that the competent police officer
can examine such evidence and send a report
to the Magistrate. Copies concerning the fresh
material must of course be furnished to the
15 accused.
Accordingly, in the Code of
Criminal Procedure, 1973, a new
provision, Section 173(8), was
introduced and it says:
20 Nothing in this section shall be deemed to
preclude further investigation in respect of an
offence after a report under Sub-section (2)
has been forwarded to the Magistrate and,
where upon such investigation, the officer in
25 charge of the police station obtains further
evidence, oral or documentary, he shall
forward to the Magistrate a further report or
reports regarding such evidence in the form
prescribed; and the provisions of Sub-sections
30 (2) to (6) shall, as far as may be, apply in
relation to such report or reports as they apply
in relation to a report forwarded under Sub-
section (2).
In Lallan Chaudhary (supra), this Court
35 held as under:
8. Section 154 of the Code thus
casts a statutory duty upon the
police officer to register the case, as
disclosed in the complaint, and then
40 to proceed with the investigation.
The mandate of Section 154 is
manifestly clear that if any
information disclosing a cognizable
offence is laid before an officer in
45 charge of a police station, such
police officer has no other option
except to register the case on the
basis of such information.
A perusal of the above-referred judgments
50 clarify that the reasonableness or
creditability of the information is not a
condition precedent for the registration of a
case.
Preliminary Inquiry
55 Mr. Naphade argued that if the police
officer has a doubt about the veracity of the
accusation, he has to conduct preliminary
inquiry. Learned senior counsel for the
State further vehemently contended that in
60 appropriate cases, it would be proper for a
police officer, on receipt of a complaint of a
cognizable offence, to satisfy himself
that prima facie the allegations levelled
against the accused in the complaint are
65 credible. In this regard,
He further pointed out that the provisions
have to be read in the light of the principle
of malicious prosecution and the
fundamental rights guaranteed under
70 Articles 14, 19 and 21. It is the stand of
learned senior counsel that every citizen has
a right not to be subjected to malicious
prosecution and every police officer has an
in-built duty under Section 154 to ensure
75 that an innocent person is not falsely
implicated in a criminal case. If despite the
fact that the police officer is not prima
facie satisfied, as regards commission of a
cognizable offence and proceeds to register
80 an FIR and carries out an investigation, it
would result in putting the liberty of a
citizen in jeopardy. Therefore, learned
senior counsel vehemently pleaded for a
preliminary inquiry before registration of
85 FIR.
In terms of the language used in
Section 154 of the Code, the police is duty
bound to proceed to conduct investigation
into a cognizable offence even without
90 receiving information (i.e. FIR) about
commission of such an offence, if the
15
 officer in charge of the police station
otherwise suspects the commission of such
an offence. The legislative intent is
therefore quite clear, i.e., to ensure that
5 every cognizable offence is promptly
investigated in accordance with law. This
being the legal position, there is no reason
that there should be any discretion or option
left with the police to register or not to
10 register an FIR when information is given
about the commission of a cognizable
offence. Every cognizable offence must be
investigated promptly in accordance with
law and all information provided under
15 Section 154 of the Code about the
commission of a cognizable offence must
be registered as an FIR so as to initiate an
offence. The requirement of Section 154 of
the Code is only that the report must
20 disclose the commission of a cognizable
offence and that is sufficient to set the
investigating machinery into action.
The insertion of Sub-section (3) of
Section 154, by way of an amendment,
25 reveals the intention of the legislature to
ensure that no information of commission
of a cognizable offence must be ignored or
not acted upon which would result in
unjustified protection of the alleged
30 offender/accused.
The maxim expression unius est exclusion
alterius (expression of one thing is the
exclusion of another) applies in the
interpretation of Section 154 of the Code,
35 where the mandate of recording the
information in writing excludes the
possibility of not recording an information
of commission of a cognizable crime in the
special register.
40 Therefore, conducting an investigation into
an offence after registration of FIR under
Section 154 of the Code is the "procedure
established by law" and, thus, is in
conformity with Article 21 of the
45 Constitution. Accordingly, the right of the
accused under Article 21 of the
Constitution is protected if the FIR is
registered first and then the investigation is
conducted in accordance with the
50 provisions of law.
The term inquiry as per Section 2(g) of the
Code reads as under:
2(g) - "inquiry" means every inquiry, other
than a trial, conducted under this Code by a
55 Magistrate or Court.
Hence, it is clear that inquiry under the
Code is relatable to a judicial act and not to
the steps taken by the Police which are
either investigation after the stage of
60 Section 154 of the Code or termed as
'Preliminary Inquiry' and which are prior to
the registration of FIR, even though, no
entry in the General Diary/Station
Diary/Daily Diary has been made.
65 Though there is reference to the term
'preliminary inquiry' and 'inquiry' under
Sections 159 and Sections 202 and340 of
the Code, that is a judicial exercise
undertaken by the Court and not by the
70 Police and is not relevant for the purpose of
the present reference.
Significance and Compelling reasons for
registration of FIR at the earliest
The object sought to be achieved by
75 registering the earliest information as FIR
is inter alia twofold: one, that the criminal
process is set into motion and is well
documented from the very start; and
second, that the earliest information
80 received in relation to the commission of a
cognizable offence is recorded so that there
cannot be any embellishment etc., later.
Principles of democracy and liberty
demand a regular and efficient check on
85 police powers. One way of keeping check
on authorities with such powers is by
documenting every action of theirs.
Accordingly, under the Code, actions of the
police etc., are provided to be written and
90 documented. For example, in case of arrest
16
 under Section 41(1)(b)of the Code, arrest
memo along with the grounds has to be in
writing mandatorily; under Section 55 of
the Code, if an officer is deputed to make
5 an arrest, then the superior officer has to
write down and record the offence etc., for
which the person is to be arrested; under
Section 91 of the Code, a written order has
to be passed by the concerned officer to
10 seek documents; under Section 160 of the
Code, a written notice has to be issued to
the witness so that he can be called for
recording of his/her statement, seizure
memo/panchnama has to be drawn for
15 every article seized etc.
The police is required to maintain several
records including Case Diary as provided
under Section 172 of the Code, General
Diary as provided under Section 44 of the
20 Police Act etc., which helps in
documenting every information collected,
spot visited and all the actions of the police
officers so that their activities can be
documented. Moreover, every information
25 received relating to commission of a non-
cognizable offence also has to be registered
under Section155 of the Code.
The underpinnings of compulsory
registration of FIR is not only to ensure
30 transparency in the criminal justice delivery
system but also to ensure 'judicial
oversight'. Section 157(1) deploys the word
'forthwith'. Thus, any information received
under Section 154(1) or otherwise has to be
35 duly informed in the form of a report to the
Magistrate. Thus, the commission of a
cognizable offence is not only brought to
the knowledge of the investigating agency
but also to the subordinate judiciary.
40 The Code contemplates two kinds of FIRs.
The duly signed FIR under
Section 154(1) is by the informant to the
concerned officer at the police station. The
second kind of FIR could be which is
45 registered by the police itself on any
information received or other than by way
of an informant [Section 157(1)] and even
this information has to be duly recorded
and the copy should be sent to the
50 Magistrate forthwith.
The registration of FIR either on the basis
of the information furnished by the
informant under Section 154(1) of the Code
or otherwise under Section 157(1) of the
55 Code is obligatory. The obligation to
register FIR has inherent advantages:
a) It is the first step to 'access to
justice' for a victim.
b) It upholds the 'Rule of Law'
60 inasmuch as the ordinary person
brings forth the commission of a
cognizable crime in the knowledge
of the State.
c) It also facilitates swift
65 investigation and sometimes even
prevention of the crime. In both
cases, it only effectuates the regime
of law.
d) It leads to less manipulation in
70 criminal cases and lessens incidents
of 'ante-dates' FIR or deliberately
delayed FIR.
Delay in lodging the first information report
quite often results in embellishment which is
75 a creature of afterthought. On account of
delay, the report not only gets bereft of the
advantage of spontaneity, danger creeps in of
the introduction of coloured version,
exaggerated account or concocted story as a
80 result of deliberation and consultation. It is,
therefore, essential that the delay in the
lodging of the first information report should
be satisfactorily explained....
Is there a likelihood of misuse of the
85 provision?
97. Another, stimulating argument raised in
support of preliminary inquiry is that
mandatory registration of FIRs will lead to
arbitrary arrest, which will directly be in
17
 contravention of Article 21 of the
Constitution.
While registration of FIR is mandatory,
arrest of the accused immediately on
5 registration of FIR is not at all mandatory.
In fact, registration of FIR and arrest of an
accused person are two entirely different
concepts under the law, and there are
several safeguards available against arrest.
10 Moreover, it is also pertinent to mention
that an accused person also has a right to
apply for "anticipatory bail" under the
provisions of Section 438 of the Code if the
conditions mentioned therein are satisfied.
15 Thus, in appropriate cases, he can avoid the
arrest under that provision by obtaining an
order from the Court.
Giving power to the police to close an
investigation, Section 157 of the Code also
20 acts like a check on the police to make sure
that it is dispensing its function of
investigating cognizable offences. This has
been recorded in the 41st Report of the Law
Commission of India on the Code of
25 Criminal Procedure, 1898 as follows:
14.1...If the offence does not appear
to be serious and if the station-
house officer thinks there is no
sufficient ground for starting an
30 investigation, he need not
investigate but, here again, he has
to send a report to the Magistrate
who can direct the police to
investigate, or if the Magistrate
35 thinks fit, hold an inquiry himself.
14.2. A noticeable feature of the
scheme as outlined above is that a
Magistrate is kept in the picture at
all stages of the police
40 investigation, but he is not
authorized to interfere with the
actual investigation or to direct the
police how that investigation is to
be conducted.
45 Therefore, the Scheme of the Code not only
ensures that the time of the police should
not be wasted on false and frivolous
information but also that the police should
not intentionally refrain from doing their
50 duty of investigating cognizable offences.
As a result, the apprehension of misuse of
the provision of mandatory registration of
FIR is unfounded and speculative in nature.
It is true that a delicate balance has to be
55 maintained between the interest of the
society and protecting the liberty of an
individual. As already discussed above,
there are already sufficient safeguards
provided in the Code which duly protect the
60 liberty of an individual in case of
registration of false FIR. At the same time,
Section 154 was drafted keeping in mind
the interest of the victim and the society.
Therefore, we are of the cogent view that
65 mandatory registration of FIRs under
Section 154 of the Code will not be in
contravention of Article 21 of the
Constitution as purported by various
counsel.
70 Exceptions:
Although, we, in unequivocal terms, hold
that Section 154 of the Code postulates the
mandatory registration of FIRs on receipt of
all cognizable offence, yet, there may be
75 instances where preliminary inquiry may be
required owing to the change in genesis and
novelty of crimes with the passage of time.
One such instance is in the case of
allegations relating to medical negligence
80 on the part of doctors. It will be unfair and
inequitable to prosecute a medical
professional only on the basis of the
allegations in the complaint.
In the context of medical negligence cases,
85 in Jacob Mathew (supra), certain
safeguards were provided to doctors.
In the context of offences relating to
corruption, this Court in P.
Sirajuddin(supra) expressed the need for a
18
 preliminary inquiry before proceeding
against public servants.
Similarly, in Tapan Kumar Singh (supra),
this Court has validated a preliminary
5 inquiry prior to registering an FIR only on
the ground that at the time the first
information is received, the same does not
disclose a cognizable offence.
Conclusion/Directions:
10 In view of the aforesaid discussion, we
hold:
(i) Registration of FIR is mandatory
under Section 154 of the Code, if
the information discloses
15 commission of a cognizable offence
and no preliminary inquiry is
permissible in such a situation.
(ii) If the information received does
not disclose a cognizable offence
20 but indicates the necessity for an
inquiry, a preliminary inquiry may
be conducted only to ascertain
whether cognizable offence is
disclosed or not.
25 (iii) If the inquiry discloses the
commission of a cognizable
offence, the FIR must be registered.
In cases where preliminary inquiry
ends in closing the complaint, a
30 copy of the entry of such closure
must be supplied to the first
informant forthwith and not later
than one week. It must disclose
reasons in brief for closing the
35 complaint and not proceeding
further.
(iv) The police officer cannot avoid
his duty of registering offence if
cognizable offence is disclosed.
40 Action must be taken against erring
officers who do not register the FIR
if information received by him
discloses a cognizable offence.
(v) The scope of preliminary
45 inquiry is not to verify the veracity
or otherwise of the information
received but only to ascertain
whether the information reveals any
cognizable offence.
50 (vi) As to what type and in which
cases preliminary inquiry is to be
conducted will depend on the facts
and circumstances of each case.
The category of cases in which
55 preliminary inquiry may be made
are as under:
(a) Matrimonial
disputes/family disputes
(b) Commercial offences
60 (c) Medical negligence
cases
(d) Corruption cases
(e) Cases where there is
abnormal delay/laches in
65 initiating criminal
prosecution, for example,
over 3 months delay in
reporting the matter without
satisfactorily explaining the
70 reasons for delay.
The aforesaid are only illustrations
and not exhaustive of all conditions
which may warrant preliminary
inquiry.
75 (vii) While ensuring and protecting
the rights of the accused and the
complainant, a preliminary inquiry
should be made time bound and in
any case it should not exceed
80 fifteen days generally and in
exceptional cases, by giving
adequate reasons, six weeks time is
provided. The fact of such delay
and the causes of it must be
85 reflected in the General Diary entry.
19
 (viii) Since the General
Diary/Station Diary/Daily Diary is
the record of all information
received in a police station, we
5 direct that all information relating
to cognizable offences, whether
resulting in registration of FIR or
leading to an inquiry, must be
mandatorily and meticulously
10 reflected in the said Diary and the
decision to conduct a preliminary
inquiry must also be reflected, as
mentioned above. With the above
directions, we dispose of the
15 reference made to us. List all the
matters before the appropriate
Bench for disposal on merits.
35
Points for Discussion:
20 Where to register F. I. R if the
offence is committed in a moving
vehicle? Which Police Station will
have to carry out investigation in
such situation?
25 What is the legitimacy of
prelimnary inquiry to ascertain
commission of cognizable
offences? If there are frivolous
complaints which do not disclose
30 cognizable offence but informer
says there is cognizable offence?
Shall there be discretion to the
police to register F. I. R?
20
 Abhinandan Jha & Ors. vs. Dinesh Mishra

AIR 1968 SC 117

Objectives

1. To discuss power of Police to Investigate and Collect Evidence under Chapter XIV of
Code
2. Different Stages of Investigation
3. Whether, Magistrate can direct Police to submit a Charge Sheet, when police after
investigation had submitted Final Report?
4. Whether, Magistrate is bound to accept the Charge Sheet?

5
Judgment
C.A. Vaidialingam, J.
The common question, that arises for
10 consideration, in these criminal appeals, by
special leave, is as to whether a Magistrate
can direct the police to submit a charge-
sheet, when the police, after the
investigation into a cognizable offence,
15 had submitted a final report, under s. 173
of the Code of Criminal Procedure
(hereinafter called the Code). There is a
conflict of opinion, on this point between
the various High Courts in India. The High
20 Courts of Madras, Calcutta, Madhya
Pradesh, Assam and Gujarat have taken
the view that the Magistrate has no such
powers, whereas the Patna and High
Courts have held a contrary view.
25 report is submitted by the police, under s.
Brief facts of the case are as:
Dinesh Mishra, lodged a first information
report, on June 3, 1965, at the Rajoun
Police Station, that he saw a thatched
30 house, of one Uma Kant Misra, situated on
the northern side of his house, burning,
and the petitioners herein, running away
from the scene. The Police made an
investigation and submitted what is called
35 a 'final report', under s. 173 (1) of the
Code, to the effect that the offence
complained of, was false. The Sub -
Divisional Magistrate received this report
on July 13, 1965, but, in the meanwhile,
40 the respondent had filed what is termed 'a
protest petition', challenging the
correctness of the report submitted by the
police. The Magistrate appears to have
perused the police diary and, after hearing
45 the counsel for the respondent and the
public prosecutor, passed an order on
October 27, 1965, directing the police to
submit a charge - sheet, against the
petitioners, herein. The petitioners
50 challenged this order, without success,
both before the learned Sessions Judge,
Bhagalpur, and the Patna High Court. It
was held by the High Court, following its
previous decision, that the Magistrate has
55 jurisdiction to call for a charge - sheet,
when he disagrees with the report
submitted by the police, under s. 173 (1) of
the Code. The petitioners, in this appeal,
challenge these orders.
60
Appellants contended that when a final
173 (1) of the Code, stating that no case is
made out, the Magistrate has no
65 jurisdiction to direct the police to file a
charge - sheet. It may be open, counsel
points out, to the Magistrate, to direct
further investigation to be made by the
police, or to treat the protest petition filed
70 by the second respondent, as a complaint,
and take cognizance of the offence and
proceed, according to law.
In order, properly, to appreciate the duties
75 of the police, in the matter of investigation
of offences, as well as their powers, if is
necessary to refer to the provisions
contained in Chapter XIV of the Code.
That chapter deals with 'Information to the

21
 Police and their Powers to investigate', and
it contains the group of section beginning
from s. 154 and ending with s. 176.
Section 154 deals with information
5 relating to the commission of cognizable
offence, and the procedure to be adopted
in respect of the same. Section 155,
similarly, deals with information in respect
of non-cognizable offences. Sub-s. (2), of
10 this section, prohibits a police officer from
investigating a non-cognizable case,
without the order of a Magistrate. Section
156 authorizes a police officer, in-charge
of a police station, to investigate any
15 cognizable case, without the order of a
Magistrate. Therefore, it will be seen that
large powers are conferred on the police,
in the matter of investigation into a
cognizable offence : Sub-s. (3), of s. 156,
20 provides for any Magistrate empowered
under s. 190, to order an investigation. In
cases where a cognizable offence is
suspected to have been committed, the
officer, in-charge of a police station, after
25 sending a report to the Magistrate, is
entitled, under s. 157, to investigate the
facts and circumstances of the case and
also to take steps for the discovery and
arrest of the offender. Clause (b), of the
30 proviso to s. 157 (1), gives a discretion to
the police officer not to investigate the
case, if it appears to him that there is no
sufficient ground for entering on an
investigation. Section 158 deals with the
35 procedure to be adopted in the matter of a
report to be sent, under s. 157. Section 159
gives power to a Magistrate, on receiving a
report under s. 157, either to direct an
investigation or, himself or through
40 another Magistrate subordinate to him. to
hold a preliminary enquiry into the matter,
or otherwise dispose of the case, in
accordance with the Code. Sections 160 to
163 deal with the power of the police to
45 require attendance of witnesses, examine
witnesses and record statements. Sections
165 and 166 deal with the power of police
officers, in the matter of conducting
searches, during an investigation, in the
50 circumstances, mentioned therein. Section
167 provides for the procedure to be
adopted by the police, when investigation
cannot be completed in 24 hours. Section
168 provides for a report being sent to the
55 officer, incharge of a police station, about
the result of an investigation, when such
investigation has been made by a
subordinate police officer, under Chapter
XIV. Section 169 authorises a police
60 officer to release a person from custody,
on his executing a bond, to appear, if and
when so required, before a Magistrate, in
cases when, on investigation under
Chapter XIV, it appears to the officer, in
65 charge of the police station, or to the
police officer making the investigation,
that there is no sufficient evidence or
reasonable ground of suspicion, to justify
the forwarding of the accused to a
70 Magistrate. Section 170 empowers the
officer, incharge of a police station, after
investigation under Chapter XIV and if it
appears to him that there is sufficient
evidence, to forward the accused, under
75 custody, to a competent Magistrate or to
take security from the accused for his
appearance before the Magistrate, in cases
where the offence is bailable. Section 172
makes it obligatory on the police officer
80 making an investigation, to maintain a
diary recording the various particulars
therein and in the manner indicated in that
section, Section 173 provides for an
investigation, under Chapter XIV, to be
85 completed without unnecessary delay and
also makes it obligatory, on the officer,
incharge of the police station. to send a
report to the Magistrate concerned, in the
manner provided for therein, containing
90 the necessary particulars.
It is now only necessary to refer to 190,
occurring in Chapter XV, relating to
jurisdiction of criminal Courts in inquiries
95 and trials. That section is to be found
under the heading Conditions requisite for
initiation of proceedings' and its sub-s. (1)
is as follows:
22
 “(1) Except as hereinafter provided, any investigation, the police officer has to
Presidency Magistrate, District Magistrate or submit a report to the Magistrate, under s.
Sub - divisional Magistrate and any other 173, in the manner indicated therein,
Magistrate specially empowered in this behalf, 55 containing the various details. The
5 may take cognizance of any offence - question as to whether the Magistrate has
(a) upon receiving a complaint of facts which
constitute such offence;
got power to direct the police to file a
(b) upon a report in writing of such facts made charge - sheet, on receipt of a report under
by any police - officer; s. 173 really depends upon the nature of
10 (c) upon information received from any person 60 the jurisdiction exercised by a Magistrate,
other than a police - officer, or upon his own on receiving a report.
knowledge or suspicion, that such offence has
been committed.” In this connection, we may refer to certain
observations, made by the Judicial
15 From the foregoing sections, occurring in 65 Committee in King Emperor v. Khwaja
Chapter XIV, it will be seen that very Nazir Ahmed L.R. 711 A. 203 and by this
elaborate provisions have been made for Court, in H. N. Rishbud and Inder Singh v.
securing that an investigation does take The State of Delhi (1955) 1 S.C.R. 115. In
place into a reported offence and the Nazir Ahmed's Case L.R. 711 A. 203,
20 investigation is carried out within the 70 Lord Porter observes, at 212, as follows :
limits of the law, without causing any
harassment to the accused and is also “Just as it is essential that every one
completed without unnecessary or undue accused of a crime should have free access
delay. But the point to be noted is that the to a court of justice so that he may be duly
25 manner and method of conducting the 75 acquitted if found not guilty of the offence
investigation, are left entirely to the police, with which he is charged, so it is of the
and the Magistrate, so far as we can see, utmost importance that the judiciary
has no power under any of these should not interfere with the police in
provisions, to interfere with the same. If, matters which are within their province
30 on investigation, it appears to the officer, 80 and into which the law imposes on them
in - charge of a police station, or to the the duty of inquiry. In India, as has been
officer making an investigation, that there shown, there is a statutory right on the part
is no sufficient evidence or reasonable of the police to investigate the
grounds of suspicion justifying the circumstances of an alleged cognizable
35 forwarding of an accused to a Magistrate, 85 crime without requiring any authority from
s. 169 says that the officer shall release the the judicial authorities, and it would, as
accused, if in custody, on his executing a their Lord ships think, be an unfortunate
bond to appear before the Magistrate. result if it should be held possible to
Similarly, if, on the other hand, it appears interfere with those statutory rights by an
40 to the officer, in-charge of a police station, 90 exercise of the inherent jurisdiction of the
or to the officer making the investigation, court. The functions of the judiciary and
under Chapter XIV, that there is sufficient the police are complementary, not
evidence or reasonable ground to justify overlapping, and the combination of
the forwarding of an accused to a individual liberty with a due observance of
45 Magistrate, such an officer is required, 95 law and order is only to be obtained by
under s. 170, to forward the accused to a leaving each to exercise its own function,
Magistrate or, if the offence is bailable, to always, of course, subject to the right of
take security from him for this appearance the court to intervene in an appropriate
before such Magistrate. But, whether a case when moved under s. 491 of the
50 case comes under s. 169, or under s. 170, 100 Criminal Procedure Code to give
of the Code, on the completion of the directions in the nature of habeas corpus.

23
 In such a case as the present, however, the so taking the necessary steps for the same
court's functions begin when a charge is by filing of a charge - sheet under section
preferred before it, and not until then.” 173. .... It is also clear that the final step in
These observations have been quoted, with the investigation viz., the formation of the
5 approval, by this Court, in State of West 55 opinion as to whether or not there is a case
Bengal v. s. N. Basak [1963]2SCR52 . to place the accused on trial is to be that of
This Court in Rishbud and Inder Singh's the officer in - charge of the police
Case: 1955CriLJ526 , observes, at p. 1156, station”.
as follows : We are referring to these observations for
10 60 the purpose of emphasizing that the
“Investigation usually starts on scheme of Chapter XIV, clearly shows that
information relating to the commission of the formation of an opinion as to whether
an offence given to an officer incharge of a or not there is a case to place the accused
police station and recorded under section on trial, has been left to the officer
15 154 of the Code. If from information so 65 incharge of a police station. Bearing in
received or otherwise, the officer in charge mind these principles referred to above, we
of the police station has reason to suspect have to consider the question that arises
the commission of an offence, he or some for consideration, in this case. The High
other subordinate officer deputed by him, Courts which have held that the Magistrate
20 has to proceed to the spot to investigate the 70 has no jurisdiction to call upon the police
facts and circumstances of the case and if to file a charge - sheet, under such
necessary to take measures for the circumstances, have rested their decision
discovery and arrest of the offender. Thus on two principles viz., (a) that there is no
investigation primarily consists in the express provision in the Code empowering
25 ascertainment of the facts and 75 a Magistrate to pass such an order; and (b)
circumstances of the case By definition, it such a power, in view of the scheme of
includes 'all the proceedings under the Chapter XIV, cannot be inferred . On the
Code for the collection of evidence other hand, the High Courts which have
conducted by a police officer'.” recognised such a power, rest their
30 Again, after a reference to some of the 80 decision again on two grounds viz., (a)
provisions in Chapter XIV of the Code, it when a report is submitted by the police,
is observed at p. 1157 : after investigation, the Magistrate has to
“Thus, under the Code investigation deal with it judicially, which will mean
consists generally of the following steps : that when the report is not accepted, the
35 (1) Proceeding to the spot, (2) 85 Magistrate can give suitable directions to
Ascertainment of the facts and the police; and (b) the Magistrate is given
circumstances of the case, (3) Discovery supervision over the conduct of
and arrest of the suspected offender, (4) investigation by the police, and therefore,
Collection of evidence relating to the such a power can be recognised in the
40 commission of the offence which may 90 Magistrate
consist of (a) the examination of various Though it may be that a report submitted
persons (including the accused) and the by the police may have to be dealt with,
reduction of their statements into writing, judicially, by a Magistrate, and although
if the officer thinks fit. (b) the search of the Magistrate may have certain
45 places of seizure of things considered 95 supervisory powers, nevertheless, we are
necessary for the investigation and to be not inclined to agree with the further view
produced at the trial, and (5) Formation of that from these considerations alone it can
the opinion as to whether on the material be said that when the police submit a
collection there is a case to place the report that no case has been made out for
50 accused before a Magistrate for trial and if 100 sending up an accused for trial it is open to

24
 the Magistrate to direct the police to file a
charge-sheet. But, we may make it clear,
that this is not to say that the Magistrate is
absolutely powerless, because, as will be
5 indicated later, it is open to him to take
cognizance of an offence and proceed,
according to law. We do not also find any
such power, under s. 173 (3), as is sought
to be inferred, in some of the decisions
10 cited above. As we have indicated broadly
the approach made by the various High
Courts in coming to different conclusions,
we do not think it necessary to refer to
those decisions in detail.
15 65 whatsoever is caused, because he will have
It will be seen that the Code, as such, does
not use the expression 'charge-sheet' or
'final report'. But it is understood, in the
Police Manual containing Rules and
20 Regulations, that a report by Police, filed
under s. 170 of the Code, is referred to as a
'charge-sheet'. But in respect of the reports
sent under s. 169, i.e., when there is no
sufficient evidence to justify the for-
25 warding of the accused to a Magistrate, it
is termed variously. in different States, as
either 'referred charge', 'final report', or
'Summary'.
30 Now, the question as to what exactly is to
be done by a Magistrate, on receiving a
report, under s. 173, will have to be
considered. That report may be in respect
of a case, coming under s. 170. or one
35 coming under s. 169. We have already
referred to s. 190, which is the first section
in the group of sections headed 'Conditions
requisite for Initiation of Proceedings.'
Sub-s. (1), of this section, will cover a
40 report sent, under s. 173. The use of the
words 'may take cognizance of any
offence', in sub-s. (1) of s. 190 in our
opinion imports the exercise of a 'judicial
discretion', and the Magistrate, who
45 receives the report, under s. 173, will have
to consider the said report and judicially
take a decision, whether or not to take
cognizance of the offence. From this it
follows that it is not as if that the
50 Magistrate is bound to accept the opinion
of the police that there is a case for placing
the accused, on trial. It is open to the
Magistrate to take the view that the facts
disclosed in the report do not make out an
55 offence for taking cognizance or he may
take the view that there is no sufficient
evidence to justify an accused being put on
trial. On either of these grounds, the
Magistrate will be perfectly justified in
60 declining to take cognizance of an offence,
irrespective of the opinion of the police.
On the other hand, if the Magistrate agrees
with the report, which is a charge-sheet
submitted by the police, no difficulty
full jurisdiction to take cognizance of the
offence, under s. 190(1)(b) of the Code.
This will be the position, when the report
under s. 173, is a charge-sheet.
70
Then the question is, what is the position,
when the Magistrate is dealing with a
report submitted by the police, under s.
173, that no case is made out for sending
75 up an accused for trial, which report, as we
have already indicated, is called, in the
area in question, as a 'final report'? Even in
those cases, if the Magistrate agrees with
the said report, he may accept the final
80 report and close the proceedings. But there
may be instances when the Magistrate may
take the view, on a consideration of the
final report, that the opinion formed by the
police is not based on a full and complete
85 investigation, in which case, in our
opinion, the Magistrate will have ample
jurisdiction to give directions to the police,
under s. 156(3), to make a further
investigation. That is, if the Magistrate
90 feels, after considering the final report,
that the investigation is unsatisfactory, or
incomplete, or that there is scope for
further investigation, it will be open to the
Magistrate to decline to accept the final
95 report and direct the police to make further
investigation, under s. 156(3). The police,
after such further investigation, may
submit a charge-sheet, or, again submit a
final report, depending upon the further
100 investigation made by them. If ultimately,
25
 the Magistrate forms the opinion that the through bona fide error, fail to submit a
facts, set out in the final report, constitute report, setting out the facts constituting the
an offence, he can take cognizance of the offence. Therefore, a very wide power is
offence under s. 190(1) (c), conferred on the Magistrate to take
5 notwithstanding the country opinion of the 55 cognizance of an offence, not only when
police, expressed in the final report. he receives information about the
commission of an offence from a third
In this connection, the provisions of s. 169 person, but also where he has knowledge
of the Code, are relevant. They specifically or even suspicion that the offence has been
10 provide that even though, on investigation, 60 committed. It is open to the Magistrate to
a police officer, or other investigating take cognizance of the offence, under s.
officer, is of the opinion that there is no 190(1) (c), on the ground that, after having
case for proceeding against the accused, he due regard to the final report and the
is bound, while releasing the accused, to police records placed before him, he has
15 take a bond from him to appear, if and 65 reason to suspect that an offence has been
when required, before a Magistrate. This committed. Therefore, these circumstances
provision is obviously to meet a will also clearly negative the power of a
contingency of the Magistrate, when he Magistrate to call for a charge-sheet from
considers the report of the investigating the police, when they have submitted a
20 officer, and judicially takes a view 70 final report. The entire scheme of Chapter
different from the police. XIV clearly indicates that the formation of
the opinion, as to whether or not there is a
We have to approach the question, arising case to place the accused for trial, is that of
for consideration in this case, in the light the officer in-charge of the police station
25 of the circumstances pointed out above. 75 and that opinion determines whether the
We have already referred to the scheme of report is to be under s. 170, being a
Chapter xiv, as well as the observations of 'charge-sheet', or under s. 169, 'a final
this Court in Rishbud and Inder Singh's report'. It is no doubt open to the
Case: 1955CriLJ526 that the formation of Magistrate, as we have already pointed
30 the opinion as to whether or not there is a 80 out, to accept or disagree with the opinion
case to place the accused on trial before a of the police and, if he disagrees, he is
Magistrate, is left to the officer in-charge entitled to adopt any one of the courses
of the police station. There is no express indicated by us. But he cannot direct the
power, so far as we can see, which gives police to submit a charge-sheet, because,
35 jurisdiction to pass an order of the nature 85 the submission of the report depends upon
under attack; not can any such powers be the opinion formed by the police, and not
implied. There is certainly no obligation, on the opinion of the Magistrate. The
on the Magistrate, to accept the report, if Magistrate cannot compel the police to
he does not agree with the opinion formed form a particular opinion, on the
40 by the police. Under those circumstances, 90 investigation, and to submit a report,
if he still suspects that an offence has been according to such opinion. That will be
committed, he is entitled, notwithstanding really encroaching on the sphere of the
the opinion of the police, to take police and compelling the police to form
cognizance, under s. 190(1) (c) of the an opinion so as to accord with the
45 Code. That provision, in our opinion, is 95 decision of the Magistrate and send a
obviously intended to secure that offences report, either under s. 169, or under s. 170,
may not go unpunished and justice may be depending upon the nature of the decision.
invoked even where persons individually Such a function has been left to the police,
aggrieved are unwilling or unable to under the Code.
50 prosecute, or the police, either wantonly or 100

26
 We have already pointed out that the
investigation, under the Code, takes in
several aspects, and stages, ending
ultimately with the formation of an
5 opinion by the police as to whether, on the
material covered and collected, a case is
made out to place the accused before the
Magistrate for trial, and the submission of
either a charge-sheet, or a final report is
10 dependent on the nature of the opinion, so
formed. The formation of the said opinion,
by the police, as pointed out earlier, is the
final step in the investigation, and that
final step is to be taken only by the police
15 and by no other authority.
The question can also be considered from
another point of view. Supposing the
police send a report, viz., a charge-sheet,
20 under s. 170 of the Code. As we have
already pointed out, the Magistrate is not
bound to accept that report, when he
considers the matter judicially. But, can he
differ from the police and call upon them
25 to submit a final report, under s. 169 ? In
50
our opinion, the Magistrate has no such
power. If he has no such power, in law, it
also follows that the Magistrate has no
power to direct the police to submit a
30 charge-sheet when the police have
submitted a final report that no case is
made out for sending the accused for trial.
The functions of the Magistracy and the
police, are entirely different, and though,
35 in the circumstances mentioned earlier, the
Magistrate may or may not accept the
report, and take suitable action, according
to law, he cannot certainly infringe upon
the jurisdiction of the police, by
40 compelling them to change their opinion,
so as to accord with his view.
Therefore, to conclude, there is no power,
expressly or impliedly conferred, under the
45 Code, on a Magistrate to call upon the
police to submit a charge-sheet, when they
have sent a report under s. 169 of the
Code, that there is no case made out for
sending up an accused for trial.
27
 Suresh Chand Jain vs. State of MP
(2001) 2 SCC 628
Objectives
1. To understand the distinction between Investigation ordered by Magistrate u/s
5 156(3) and 202 of the Code.
JUDGMENT
K.T. Thomas, J.
The complaint was filed by the second
respondent (Mahesh Patidar) before the
10 Chief Judicial Magistrate, Neemuch
(M.P.) on 12.8.1999 alleging that the
appellant and his wife Geeta Devi have
committed offence under Section 3 of
the Prized Chits and Money Circulation
15 Scheme (Prohibition) Act and under
Section 420 of the Indian Penal Code.
The Chief Judicial Magistrate passed an
order on 18.8.1999 which is extracted
below:
20 “The complaint submitted by the
complainant has been perused. This
complaint has been submitted by the
complainant for initiating action against
the accused under Section 3 of the Prizes,
25 Chits and Money, Circulation Scheme
(Prohibition) Act and Section 420 of the
IPC. Both the offences are serious,
therefore, the case is required to be
investigated by the police station, Nemuch
30 Cantt. under Section 156(3) Cr.P.C.,
therefore, the complaint submitted by the
complainant be sent to the In-charge,
Police Station Neemuch Cantt. with the
direction to register F.I.R. and initiate
35 investigation. The copy of the F.I.R. and
initiate investigation. The copy of the
F.I.R. be sent to this court immediately.”
Appellant challenged the said order in a
revision before the Sessions Court and
40 when the revision was dismissed he
moved the High Court under
Section 482 of the Code of Criminal
Procedure (for short 'the Code'). Learned
Single Judge of the High Court of
45 Madhya Pradesh took the view that "in a
private complaint case under
Section 156(3) of the Code the
magistrate is empowered to order
investigation; the allegation made in the
50 complaint needs to be investigated in
public interest."
Shri R.K. Jain, learned senior counsel
contended first that a magistrate on
receipt of a complaint should have
55 examined the complainant on oath
before proceeding to any other step.
Learned senior counsel adopted the
alternative contention that the magistrate
has no power to direct the police to
60 register an FIR. In support of the said
contention learned counsel cited two
decisions. One is Ram Narain vs.
Lokuram 1986(37) RLW 143 and the
other was rendered by the Punjab and
65 Haryana High Court in Suresh Kumar
vs. State of Haryana 1996 (3) RCR
137.
The former decision of the Rajasthan
High Court need not vex our mind as the
70 consideration focussed therein was on
the scope of Section 202(1) of the Code
and the learned Single Judge observed
therein that a magistrate cannot make
any order regarding police investigation
75 without examining the complainant on
oath. If the facts in that case remained
one under Section 202(1) of the Code
28
 then the observation cannot be faulted
with. That apart, as the point involved in
this case is different we do not think it
necessary to examine the said decision.
5 But the other decision rendered by a
Single Judge of the Punjab and Haryana
High Court (Suresh Kumar vs. State of
Haryana) has gone a step further as he
held that "the magistrate has no power
10 within the contemplation of
Section 156(3) of the Code to ask for
registration of the case, but could only
refer the complaint to the police for
investigation at the pre-cognizance stage
15 to make the enquiry in the matter
enabling the magistrate to apply his
mind with regard to the correctness of
the complaint." In that decision learned
Single Judge, at the end of the judgment,
20 made a direction as follows:
“Before parting with the judgment, it is
observed that often it is found that the
Judicial Magistrates working under the
control of this Court many a time upon the
25 complaints preferred before them,
allegedly showing that a cognizable
offence has been committed by the
accused, direct the police to register and
conduct the investigation in such cases
30 under Section 156(3) of the Cr.P.C. After
the reports are received from the police the
Magistrates deal with those cases as police
challans and conduct the proceedings in
the matters against the provisions of law as
35 discussed above. Hence the Registry is
directed to send a copy of this judgment to
all the Judicial Magistrates in the States of
Punjab, Haryana and Union Territory,
Chandigarh, for information and
40 guidance.”
In our opinion, the aforesaid direction
given by the learned Single Judge of the
Punjab and Haryana High Court in
Suresh Kumar vs. State of Haryana
45 (supra) is contrary to law and cannot be
approved. Chapter XII of the Code
contains provisions relating to
"information to the police and their
powers to investigate", whereas Chapter
50 XV, which contains Section 202, deals
with provisions relating to the steps
which a magistrate has to adopt while
and after taking cognizance of any
offence on a complaint. Provisions of
55 the above two chapters deal with two
different facets altogether though there
could be a common factor i.e. complaint
filed by a person. Section 156, falling
within Chapter XII, deals with powers
60 of the police officers to investigate
cognizable offences. True,
Section 202 which falls under Chapter
XV, also refers to the power of a
Magistrate to "direct an investigation by
65 a police officer". But the investigation
envisaged in Section 202 is different
from the investigation contemplated in
Section 156 of the Code. Section 156 of
the Code reads thus:
70 “Police officer's power to investigate
cognizable cases.- (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
75 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
80 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
85 as above-mentioned.”
The investigation referred to therein is
the same investigation the various steps
to be adopted for it have been elaborated
in Chapter XII of the Code. Such
90 investigation would start with making
the entry in a book to be kept by the
officer-in-charge of a police station, of
the substance of the information relating
to the commission of a cognizable
95 offence. The investigation started
29
 thereafter can end up only with the
report filed by the police as indicated in
Section173 of the Code. The
investigation contemplated in that
5 Chapter can be commenced by the
police even without the order of a
magistrate. But that does not mean that
when a magistrate orders an
investigation under Section 156(3) it
10 would be a different kind of
investigation. Such investigation must
also end up only with the report
contemplated in Section 173 of the
Code. But the significant point to be
15 noticed is, when a magistrate orders
investigation under Chapter XII he does
so before he takes cognizance of the
offence.
But a magistrate need not order any such
20 investigation if he proposes to take
cognizance of the offence. Once he
takes cognizance of the offence he has
to follow the procedure envisaged in
Chapter XV of the Code. A reading of
25 Section 202(1) of the Code would
convince that the investigation referred
to therein is of a limited nature. The
magistrate can direct such an
investigation to be made either by a
30 police officer or by any other person.
Such investigation is only for helping
the magistrate to decide whether or not
there is sufficient ground for him to
proceed further. This can be discerned
35 from the culminating words in
Section 202(1) i.e. "or direct an
investigation to be made by a police
officer or by such other persons as he
thinks fit, for the purpose of deciding
40 whether or not there is sufficient ground
for proceeding". This is because he has
already taken cognizance of the offence
disclosed in the complaint, and the
domain of the case would thereafter vest
45 with him.
The position is thus clear. Any judicial
magistrate, before taking cognizance of
the offence, can order investigation
under Section 156(3) of the Code. If he
50 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
55 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
60 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
65 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
70 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.
75 Though the learned Single Judge of the
Punjab and Haryana High Court in
Suresh Kumar vs. State of Haryana
(supra) made reference to two decisions
rendered by this Court Gopal Das
80 Sindhi and ors. vs. State of Assam and
anr. AIR 1961 SC 986 and Tula Ram
and ors. vs. Kishore Singh learned
Single Judge fell into error in
formulating a legal position which is
85 quite contrary to the dictum laid down
by this Court in the aforecited decisions.
In Gopal Das Sindhi vs. State of
Assam (supra) a three Judge Bench of
this Court considered the validity of the
90 course adopted by a judicial magistrate
of the 1st class in ordering the police "to
register a case, investigate and if
warranted, submit charge-sheet".
Learned Judges repelled the contention
95 that the magistrate ought to have
examined the complainant on oath under
Section 200 of the Code. Dealing with
30
 the said contention their Lordships
stated thus:
“If the Magistrate had not taken
cognizance of the offence on the complaint
5 filed before him, he was not obliged to
examine the complainant on oath and the
witnesses present at the home of the filing
of the complaint. We cannot read the
provisions of S. 190 to mean that once a
10 complaint is filed, a Magistrate is bound to
take cognizance if the facts stated in the
complaint disclose the commission of any
offence. We are unable to construe the
word 'may' in section190 to mean 'must'.
15 The reason is obvious. A complaint
disclosing cognizable offences may well
justify a Magistrate in sending the
complaint, under S. 156(3) to the police
for investigation. There is no reason why
20 the time of the Magistrate should be
wasted when primarily the duty to
investigate in cases involving cognizable
offences is with the police. On the other
hand, there may be occasions when the
25 Magistrate may exercise his discretion and
take cognizance of a cognizable offence.”
55
In Tula Ram vs. Kishore Singh 1978
CriLJ 8 a two Judge Bench of this
Court, after referring to the earlier
30 decision, reiterated the same legal
position. It is unfortunate that when this
Court laid down the legal position so
explicitly in the above two decisions
which reached the notice of the learned
35 Judge of the Punjab and Haryana High
Court he had formulated a position
contrary to it by stating that "the
Magistrate has no power within the
contemplation of Section 156(3) of the
40 Code, to ask for registration of the case."
It appears that the judicial officers under
Punjab and Haryana High Court who
were, till then, following the correct
position, were asked by the learned
45 Judge to follow the erroneous position
formulated by him in the aforesaid
judgment.
In the present case the High Court of
Madhya Pradesh had rightly upheld the
50 course adopted by the magistrate. Hence
we dismiss this appeal.
31
 Chandra Babu vs State (2015) 8 SCC 774

Objectives:

1. Whether the High Court, in exercise of the revisional jurisdiction, should have
adverted to the merits of the case in extenso.
2. Whether the learned Chief Judicial Magistrate could have directed for
reinvestigation
3. Whether it could have directed for reinvestigation by another investigating agency
4. Whether, magistrate can disagree with the police report and take cognizance and
issue process and summons to the accused.
5. What are the options available to Magistrate upon receipt of report u/s 173(2)
6. Whether, the Magistrate has power to direct "reinvestigation" or "fresh
investigation" (de novo) in the case initiated on the basis of a police report.
7. Power to direct further investigation

JUDGMENT informant had alleged that on

Dipak Misra, J.
In this appeal, by special leave, the
informant-Appellant calls in question
5 the defensibility of the order dated
13.12.2011 passed by the learned Single
Judge of the High Court of Judicature of
Madras at Madurai in Criminal Revision
No. 790/2011 whereby he has annulled
10 the order dated 2.9.2010 passed by the
learned Chief Judicial Magistrate,
Nagercoil directing further investigation
in exercise of power Under
Section 173(8) of the Code of Criminal
15 Procedure and also directing the
investigation to be carried out by
C.B.C.I.D.; on the foundation that in the
obtaining fact situation there are no
exceptional circumstances for ordering
20 re-investigation.
As the facts would unfurl, the Appellant
filed an FIR with the Sub-Inspector of
Police, Kulasekaram Police Station,
upon which Crime No. 119/2007 was
25 registered Under
Section 147, 148, 341, 324, 323 and 307
of Indian Penal Code (IPC). The
05.06.2007 about 2 p.m., Manikandan,
30 Jegan, Murugan, Vijayan, Sunil and
some others attacked him with Vettu
Kathi', knife and iron rod and in the said
attack he sustained multiple injuries.
The motive behind the assault, as per the
35 FIR, was due to business rivalry that
existed between the Appellant and
Manikandan, as both are contractors.
The Inspector of Police, Kulasekaram
Police Station conducted the initial
40 investigation and subsequently the case
was transferred to the District Crime
Branch Police, Kanyakumari and
thereafter, the Inspector of Police,
District Crime Branch filed a final
45 report before the learned Judicial
Magistrate, Padmanabhapuram stating
that the case was a mistake of fact. The
learned Judicial Magistrate on
intimation to the informant accepted the
50 final report.
In the meantime, the Appellant had filed
a protest petition dated 5.1.2009 forming
the subject matter of Crl. M.P. No.
1974/2009 on the file of the learned
55 Judicial Magistrate praying therein to
direct CBCID to re-open the case and

32
 file a fresh report. However, as the final
report had already been accepted before
disposing the protest petition, the
Appellant preferred Crl. O.P. No.
5 1727/2009 before the Madurai Bench of
the Madras High Court. The High Court
called for the report from the
Magistrate's Court and, thereafter, set
aside the order accepting the final report
10 and directed the Magistrate to consider
the final report along with the protest
petition.
The learned Magistrate vide order dated
29.07.2009 dismissed the protest
15 petition. It took note of the decisions
inHasanbhai Valibhai Quareshi v.
State of Gujarat and Ors (2004) 5 SCC
347 andHemant Dhasmana v. CBI and
Anr. (2001) 7 SCC 536, and held that
20 as the investigation officer had
examined all the witnesses as averred by
the informant and received the evidence
and as no new witnesses were cited to
be examined, there was no justification
25 for directing reinvestigation of the case.
It further directed that the protest
petition to be treated as a separate
private complaint.
Being aggrieved by the said order, the
30 Appellant preferred Criminal Revision
Petition, i.e., Crl. R.C. No. 458 of 2009
in the High Court. Before the High
Court, the Appellant contended that the
order of the Magistrate was based on the
35 acceptance of the final report submitted
by the police and the order did not
reflect any application of mind on his
part. It was further urged that the order
was bereft of discussion of the evidence
40 gathered by the Investigating Officer,
and that apart there was total non-
application of mind either for
acceptance or rejection of the statements
of the witnesses filed along with the
45 final report. The High Court while
setting aside the order of learned
Magistrate observed that the lower court
fell into error by neither discussing the
material available, nor clearly spelling
50 out the reasons and shirked its duty by
merely permitting the Petitioner, therein,
to pursue his cause by way of private
complaint. The learned Single Judge,
accordingly, allowed the revision and
55 concluded thus:
This Court has resisted from entering
upon a discussion on the merits of the
case or on the materials before it so as to
avoid prejudice to either side. With the
60 aim is to avoid prejudice and alleged
bias, as rightly submitted by the learned
senior Counsel, it would be better that
the reconsideration of the final report
and also the materials towards arriving
65 at a finding of whether the case is one
calling for further proceedings against
the accused or otherwise, be left to the
judicial discretion of another Court.
Accordingly, the Judicial Magistrate,
70 Padmanabhapuram, is directed to
forward all records pertaining to Crime
No. 119 of 2007 on the file of the
Respondent police to the Court of the
Chief Judicial Magistrate, Nagercoil
75 within a period of two weeks from the
date of receipt of a copy of this order.
The Chief Judicial Magistrate, Nagercoil
is in turn directed to consider the 173
report as also the materials, hear both
80 the public prosecutor and the de-facto
complainant who has filed the protest
petition and pass orders in accordance of
law.
After the remit, the Chief Judicial
85 Magistrate, Nagercoil, took up the case
for further enquiry. The Court after
hearing both the Appellant and the
Assistant Public Prosecutor came to the
conclusion that the investigation by the
90 Inspector of Police, District Crime
33
 Branch had been conducted in a biased
manner and the said authority had
laboured hard to save the accused
persons and hence, the final report
5 submitted by the investigating officer
was not acceptable. Thereafter, it took
note of the judgments in Hemant
Dhasmana (supra), Sonalai Soni v.
State of Chhattisgarh and Ors 2005
10 Crl. L.J. 4461 (Chhattisgarh),
and Hasanbhai Valibhai
Quareshi (supra), and came to hold that
in terms of the said judgments there is
power Under Section 173(8) of Code of
15 Criminal Procedure to forward the
complaint for further investigation and
resultantly by order dated 02.09.2010
directed the Additional Director General
of Police, CBCID to confer the power
20 on the Inspector, CBCID, Nagercoil to
investigate the case in Crime No.
119/2007 and file a report.
Being aggrieved by the said order, one
of the accused, Jegan, filed Criminal
25 Revision No. 790 of 2011. The High
Court, vide the impugned order, after
discussing the evidence on record, came
to hold that there were material
discrepancies in the evidence brought on
30 record and, therefore, in the present fact
situation there were no exceptional
circumstances for ordering re-
investigation, and that apart, the scheme
of Section 173(8) Code of Criminal
35 Procedure only enables the investigating
officer to request for further
investigation. The High Court,
accordingly, set aside the order of the
Chief Judicial Magistrate and further
40 observed that as the learned Judicial
Magistrate in his order dated 13.07.2009
had directed that the protest petition was
to be treated as a private complaint, the
de-facto complainant still had an
45 opportunity for presenting the case
before the Court and no prejudice was
caused to him.
It is submitted by Mr. Vishwanathan,
learned senior Counsel that the High
50 Court has absolutely flawed by entering
into the merits of the case when the
learned Chief Judicial Magistrate had
only directed for reinvestigation by
different investigating agency. It is
55 urged by him that if the order passed by
the Chief Judicial Magistrate is read in
entirety, it would convey that he in
actuality has directed for further
investigation, but has used the
60 expression "reinvestigation" as it was
directing investigation to be carried out
by another agency. It is his further
submission that in view of the earlier
order passed by the High Court, the
65 order impugned in this appeal is wholly
unsustainable.
First, we shall dwell upon the issue
whether the High Court, in exercise of
the revisional jurisdiction, should have
70 adverted to the merits of the case in
extenso. As the factual matrix would
reveal, the learned Single Judge has
dwelled upon in great detail on the
statements of the witnesses to arrive at
75 the conclusion that there are remarkable
discrepancies with regard to the facts
and there is nothing wrong with the
investigation. In fact, he has noted
certain facts and deduced certain
80 conclusions, which, as we find, are
beyond the exercise of revisional
jurisdiction. It is well settled in law that
inherent as well as revisional
jurisdiction should be exercised
85 cautiously. Normally, a revisional
jurisdiction should be exercised on a
question of law. However, when factual
appreciation is involved, then it must
find place in the class of cases resulting
90 in a perverse finding. Basically, the
34
 power is required to be exercised so that
justice is done and there is no abuse of
power by the Court. (see Amit Kapoor v.
Ramesh Chander (2012) 9 SCC 460).
5 13. Judging on the aforesaid premises,
we have no shadow of doubt that the
High Court has adverted to the facts not
to see the perversity of approach, or to
see that justice is done, but analysed it
10 from an angle as if it is exercising the
appellate jurisdiction. Therefore, the
High Court's conclusion with regard to
the factual score is unsustainable.
Presently to the thrust of the matter, the
15 controversy before the learned Single
Judge was basically two-fold, namely,
whether the learned Chief Judicial
Magistrate could have directed for
reinvestigation and secondly, whether it
20 could have directed for reinvestigation
by another investigating agency. To
appreciate the said issues, it is necessary
to analyse the scheme of Section 190 of
the Code of Criminal Procedure. The
25 said provision reads as follows:
190. Cognizance of offences by
Magistrates.-(1) Subject to the provisions of
this Chapter, any Magistrate of the first
class, and any Magistrate of the second
30 class specially empowered in this behalf
Under Sub-section (2), may take cognizance
of any offence-
(a) upon receiving a complaint of facts
which constitute such offence.
35 (b) upon a police report of such facts;
(c) upon information received from any
person other than a police officer, or upon
his own knowledge, that such offence has
been committed.
40 (2) The Chief Judicial Magistrate may
empower any Magistrate of the second class
to take cognizance Under Sub-section (1) of
such offences as are within his competence
to inquire into or try.
45 In Uma Shankar Singh v. State of
Bihar (2010) 9 SCC 479, a two-Judge
Bench was considering the issue
pertaining to the power of the
Magistrate Under Section 190(1)(b) of
50 Code of Criminal Procedure. The Court,
scanning the anatomy of the provision,
opined that the Magistrate is not bound
to accept the final report filed by the
investigating agency Under
55 Section 173(2) of the Code and is
entitled to issue process against an
accused even though exonerated by the
said authorities.
15. In Dharam Pal v. State of Haryana
60 (2014) 3 SCC 306, the Constitution
Bench, has held thus:
In our view, the Magistrate has a role to
play while committing the case to the
Court of Session upon taking
65 cognizance on the police report
submitted before him Under
Section173(2) Code of Criminal
Procedure. In the event the Magistrate
disagrees with the police report, he has
70 two choices. He may act on the basis of
a protest petition that may be filed, or he
may, while disagreeing with the police
report, issue process and summon the
accused. Thereafter, if on being satisfied
75 that a case had been made out to
proceed against the persons named in
column 2 of the report, proceed to try
the said persons or if he was satisfied
that a case had been made out which
80 was triable by the Court of Session, he
may commit the case to the Court of
Session to proceed further in the matter.
35
 This brings us to the third question as to
the procedure to be followed by the
Magistrate if he was satisfied that a
prima facie case had been made out to
5 go to trial despite the final report
submitted by the police. In such an
event, if the Magistrate decided to
proceed against the persons accused, he
would have to proceed on the basis of
10 the police report itself and either inquire
into the matter or commit it to the Court
of Session if the same was found to be
triable by the Sessions Court.
We have referred to the aforesaid
15 authorities to reiterate the legal position
that a Magistrate can disagree with the
police report and take cognizance and
issue process and summons to the
accused. Thus, the Magistrate has the
20 jurisdiction to ignore the opinion
expressed by the investigating officer
and independently apply his mind to the
facts that have emerged from the
investigation.
25 Having stated thus, we may presently
proceed to deal with the facet of law
where the Magistrate disagrees with the
report and on applying his independent
mind feels there has to be a further
30 investigation and under that
circumstance what he is precisely
required to do. In this regard, we may
usefully refer to a notable passage from
a three-Judge Bench decision
35 in Bhagwant Singh v. Commr. of
Police 1985) 2 SCC 537, which is to
the following effect:
4. Now, when the report forwarded by
the officer in charge of a police station
40 to the Magistrate Under Sub-section
(2)(i) of Section 173 comes up for
consideration by the Magistrate, one of
two different situations may arise. The
report may conclude that an offence
45 appears to have been committed by a
particular person or persons and in such
a case, the Magistrate may do one of
three things: (1) he may accept the
report and take cognizance of the
50 offence and issue process, or (2) he may
disagree with the report and drop the
proceeding, or (3) he may direct further
investigation under Sub-section (3) of
Section156 and require the police to
55 make a further report. The report may
on the other hand state that, in the
opinion of the police, no offence appears
to have been committed and where such
a report has been made, the Magistrate
60 again has an option to adopt one of three
courses: (1) he may accept the report
and drop the proceeding, or (2) he may
disagree with the report and taking the
view that there is sufficient ground for
65 proceeding further, take cognizance of
the offence and issue process, or (3) he
may direct further investigation to be
made by the police Under Sub-section
(3) of Section 156. Where, in either of
70 these two situations, the Magistrate
decides to take cognizance of the
offence and to issue process, the
informant is not prejudicially affected
nor is the injured or in case of death, any
75 relative of the deceased aggrieved,
because cognizance of the offence is
taken by the Magistrate and it is decided
by the Magistrate that the case shall
proceed. But if the Magistrate decides
80 that there is no sufficient ground for
proceeding further and drops the
proceeding or takes the view that though
there is sufficient ground for proceeding
against some, there is no sufficient
85 ground for proceeding against others
mentioned in the first information
report, the informant would certainly be
prejudiced because the first information
report lodged by him would have failed
90 of its purpose, wholly or in part.
Moreover, when the interest of the
36
 informant in prompt and effective action
being taken on the first information
report lodged by him is clearly
recognised by the provisions contained
5 in Sub-section (2) of Section 154, Sub-
section (2) of Section 157 and Sub-
section (2)(ii) of Section 173, it must be
presumed that the informant would
equally be interested in seeing that the
10 Magistrate takes cognizance of the
offence and issues process, because that
would be culmination of the first
information report lodged by him. There
can, therefore, be no doubt that when,
15 on a consideration of the report made by
the officer in charge of a police station
Under Sub-section (2)(i) of Section 173,
the Magistrate is not inclined to take
cognizance of the offence and issue
20 process, the informant must be given an
opportunity of being heard so that he
can make his submissions to persuade
the Magistrate to take cognizance of the
offence and issue process. We are
25 accordingly of the view that in a case
where the Magistrate to whom a report
is forwarded Under Sub-section (2)(i) of
Section 173 decides not to take
cognizance of the offence and to drop
30 the proceeding or takes the view that
there is no sufficient ground for
proceeding against some of the persons
mentioned in the first information
report, the Magistrate must give notice
35 to the informant and provide him an
opportunity to be heard at the time of
consideration of the report. It was urged
before us on behalf of the Respondents
that if in such a case notice is required to
40 be given to the informant, it might result
in unnecessary delay on account of the
difficulty of effecting service of the
notice on the informant. But we do not
think this can be regarded as a valid
45 objection against the view we are taking,
because in any case the action taken by
the police on the first information report
has to be communicated to the
informant and a copy of the report has to
50 be supplied to him Under Sub-section
(2)(i) of Section 173 and if that be so,
we do not see any reason why it should
be difficult to serve notice of the
consideration of the report on the
55 informant. Moreover, in any event, the
difficulty of service of notice on the
informant cannot possibly provide any
justification for depriving the informant
of the opportunity of being heard at the
60 time when the report is considered by
the Magistrate.
Relying on the said paragraph, a two-
Judge Bench in Vinay Tyagi v. Irshad
Ali (2013) 5 SCC 762, has opined thus:
65 In some judgments of this Court, a view
has been advanced, [amongst others
in Reeta Nag v. State of W.B. (2009) 9
SCC 129, Ram Naresh Prasad v. State
of Jharkhand (2009) 11 SCC 299
70 and Randhir Singh Rana v. State (Delhi
Admn.) (1997) 1 SCC 361] that a
Magistrate cannot suo motu direct
further investigation Under
Section 173(8) of the Code or direct
75 reinvestigation into a case on account of
the bar contained in Section 167(2) of
the Code, and that a Magistrate could
direct filing of a charge-sheet where the
police submits a report that no case had
80 been made out for sending up an
accused for trial. The gist of the view
taken in these cases is that a Magistrate
cannot direct reinvestigation and cannot
suo motu direct further investigation.
85 However, having given our considered
thought to the principles stated in these
judgments, we are of the view that the
Magistrate before whom a report Under
Section173(2) of the Code is filed, is
90 empowered in law to direct "further
investigation" and require the police to
37
 submit a further or a supplementary
report. A three-Judge Bench of this
Court inBhagwant Singh has, in no
uncertain terms, stated that principle, as
5 aforenoticed.
The contrary view taken by the Court in
Reeta Nag and Randhir Singh do not
consider the view of this Court
expressed in Bhagwant Singh. The
10 decision of the Court in Bhagwant
Singhin regard to the issue in hand
cannot be termed as an obiter. The ambit
and scope of the power of a Magistrate
in terms of Section 173 of the Code was
15 squarely debated before that Court and
the three-Judge Bench concluded as
aforenoticed. Similar views having been
taken by different Benches of this Court
while following Bhagwant Singh, are
20 thus squarely in line with the doctrine of
precedent. To some extent, the view
expressed in Reeta Nag, Ram
Naresh and Randhir Singh, besides
being different on facts, would have to
25 be examined in light of the principle of
stare decisis.
And eventually the Division Bench
ruled:
Having analysed the provisions of the
30 Code and the various judgments as
aforeindicated, we would state the
following conclusions in regard to the
powers of a Magistrate in terms of
Section 173(2) read with
35 Section 173(8) and Section 156(3) of the
Code:
The Magistrate has no power to direct
"reinvestigation" or "fresh investigation"
(de novo) in the case initiated on the
40 basis of a police report.
A Magistrate has the power to direct
"further investigation" after filing of a
police report in terms of
Section 173(6) of the Code.
45 The view expressed in Sub-para 40.2
above is in conformity with the principle
of law stated in Bhagwant Singhcase by
a three-Judge Bench and thus in
conformity with the doctrine of
50 precedent.
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
55 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
Section173(8) itself. In fact, such power
60 would have to be read into the language
of Section 173(8).
The Code is a procedural document,
thus, it must receive a construction
which would advance the cause of
65 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
70 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
75 investigation which it could do on its
own.
We have reproduced the conclusion in
extenso as we are disposed to think that
the High Court has fallen into error in its
80 appreciation of the order passed by the
learned Chief Judicial Magistrate. It has
to be construed in the light of the
eventual direction. The order, in fact, as
we perceive, presents that the learned
85 Chief Judicial Magistrate was really
inclined to direct further investigation
38
 but because he had chosen another
agency, he has used the word
"reinvestigation". Needless to say, the
power of the Magistrate to direct for
5 further investigation has to be cautiously
used.
In Vinay Tyagi (supra), the question
arose, whether the Magistrate can direct
for reinvestigation. The Court, while
10 dealing with the said issue, has ruled
that:
At this stage, we may also state another
well-settled canon of the criminal
jurisprudence that the superior courts
15 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".
20 "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
25 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
30 with great circumspection.
And again:
Whether the Magistrate should direct
"further investigation" or not is again a
matter which will depend upon the facts
35 of a given case. The learned Magistrate
or the higher court of competent
75 .
jurisdiction would direct "further
investigation" or "reinvestigation" as the
case may be, on the facts of a given
40 case. Where the Magistrate can only
direct further investigation, the courts of
higher jurisdiction can direct further,
reinvestigation or even investigation de
novo depending on the facts of a given
45 case. It will be the specific order of the
court that would determine the nature of
investigation.
We respectfully concur with the said
view. As we have already indicated, the
50 learned Chief Judicial Magistrate has
basically directed for further
investigation. The said part of the order
cannot be found fault with, but an
eloquent one, he could not have directed
55 another investigating agency to
investigate as that would not be within
the sphere of further investigation and,
in any case, he does not have the
jurisdiction to direct reinvestigation by
60 another agency. Therefore, that part of
the order deserves to be lancinated and
accordingly it is directed that the
investigating agency that had
investigated shall carry on the further
65 investigation and such investigation
shall be supervised by the concerned
Superintendent of Police. After the
further investigation, the report shall be
submitted before the learned Chief
70 Judicial Magistrate who shall deal with
the same in accordance with law. We
may hasten to add that we have not
expressed any opinion relating to any of
the factual aspects of the case
39
 V.L.S. Finance Ltd vs. S.P.Gupta
2016 (2) CTC 547
Objectives:
1. Role of Public Prosecutor in Criminal Trial
2. Withdrawal of Prosecution
3. Application withdrawing the Withdrawal of Prosecution
4. Scope of Section 91 of the Code
JUDGMENT
Dipak Misra, J.
In the present case, the facts fresco a
labyrinthine that has the potentiality to
divert the mind. Hence, it is imperative
5 to exposit facts after due filtration. The
Appellant set the criminal law in motion
by filing an FIR No. 90 of 2000 at
Police Station Connaught Place which
came to be registered Under
10 Sections 406, 409, 420,424, 467, 468, 4
71, 477-A and 120B of the Indian Penal
Code (IPC). After the investigation by
the Economic Offences Wing, Crime
Branch, Delhi Police, a charge-sheet
15 was filed on 18.01.2003. One of the
charges levelled against the accused
persons pertained to the fraudulent
transactions of certain amount of
money. Learned Magistrate vide order
20 dated 18.01.2003, appreciating the
material on record, took cognizance of
the offences in question and summoned
the accused persons fixing the date of
appearance on 04.09.2003. The order of
25 issuing summons was assailed before
the High Court of Delhi in Crl. M.C.
No. 911 of 2003 along with the prayer
for quashment of the FIR and an order
came to be passed on 04.03.2003. As the
30 factual score would reveal, the matter
was pending before the High Court of
Delhi and it carried on for days and, as
alleged, an effort was made to derail the
proceedings by filing an application for
35 recusal of the learned Judge who had
substantially heard the matter. The said
application came to be dismissed and
the order of dismissal was called in
question before this Court in a special
40 leave petition with no success.
Thereafter, the accused persons
challenged the order of summoning
before the trial court which was not
entertained as is evident from the order
45 dated 27.04.2010. The said order was
attacked in Crl. M.C. No. 2040 of 2010
which came to be dismissed on
04.06.2010. In the said case, the learned
single Judge had taken note of the
50 earlier cases being Criminal M.C. Nos.
911 of 2003, 1992 of 2006, 2142 of
2007, 2229 of 2007, 1988 of 2008 and
64 of 2006 and Writ Petition (Criminal)
Nos. 498 of 2005, 208 of 2006, 1191 of
55 2006 and 1210 of 2006 challenging the
summoning order which remained
pending before the High Court till
04.03.2010. On 04.03.2010 the High
Court noted that the learned Counsel for
60 the Petitioners therein did not want the
matter to be disposed of on merits and
sought liberty to raise all the points
which have been raised before this
Court in the trial Court at an appropriate
65 stage/at the stage of hearing arguments
on charge. After so noting, the High
Court observed that:
40
 Taking all these facts into
consideration including the
factum of pendency of the case
for a period of more than five
5 years and taking into
consideration that ultimately it is
for the trial Court to decide as to
whether a charge is to be framed
or not in the aforesaid case
10 against the Petitioner and to
further decide whether the case
should proceed or not in view of
some of the objections raised on
behalf of the Petitioner about the
15 propriety of issuance of
summoning order etc., it would
be appropriate to grant liberty to
the Petitioners to raise all the
issues which have been raised in
20 this petition before this Court at
the appropriate stage/stage of
framing of charge before the
concerned Court.
As is evident, the learned single Judge
25 had opined that the Petitioners gave up
their right to challenge the summoning
order in the said petition with liberty to
raise all points and issues at any
appropriate stage/at the stage of hearing
30 arguments on charge.
A committee was constituted on
03.06.2011 which consisted of S/Shri
Arvind Ray (Principal Secretary
(Home)-In Chair), S.P. Garg (Principal
35 Secretary (Law), B.S. Joon (Director of
Prosecution), Sandeep Goel (Joint C.P.
(Crime) and B.M. Jain (Dy. Secretary
(Home) Member Secretary). The
Committee considered 60 cases for
40 withdrawal and after some discussion,
sent its recommendation in each of the
case. On 13.09.2011, the said Screening
Committee while dealing with the case
of the Respondent in respect of first FIR
45 being FIR No. 90 of 2000 recommended
for withdrawal of the case.
When the matter stood thus, Mr. B.S.
Joon, Director of Prosecution, Delhi
vide letter dated 13.12.2011 wrote to the
50 Principal Secretary (Home), Home
(Police) Department, Govt. of NCT of
Delhi for withdrawal from the
prosecution in cases of FIR Nos.
90/2000, 99/2002 and 148/2002 titled as
55 'State v. S.P. Gupta and Ors.", Police
Stations Connaught Place and Defence
Colony stating that after perusal of the
charge sheets of the aforesaid cases, it
had been revealed that there was
60 sufficient material on record against the
accused persons and there was every
likelihood, that the concerned court may
not allow the application of the State
moved Under Section 321 which is a
65 pre-requisite condition for withdrawal
from the prosecution of any case, and
accordingly sought instructions as to
whether the concerned APP should press
the aforesaid applications or not.
70 Mr. Arvind Ray, who was a member of
the Screening Committee gave a note
that recommendation of withdrawal of
prosecution approved earlier in respect
of the above said cases may be placed
75 before the competent authority i.e.
Hon'ble Lt. Governor of Delhi for
appropriate orders.
The Lt. Governor on 15.12.2011 on the
basis of the recommendations passed the
80 following order: I have considered the
communication of Director of
Prosecution dated 13.12.2011 and the
note of the Principal Secretary (Home)
dated 14.12.2011 and agree with the
85 proposal that the earlier
recommendation of withdrawal of the
above cases which are awaiting trial
may not be pressed before the
41
 competent court and the trial may be
allowed to proceed on merits.
The order of the Lt. Governor dated
15.12.2011 agreeing with the proposal
5 not to press the applications for
withdrawal of the cases was assailed
before the learned Single Judge in Writ
Petition (C) No. 3470 of 2012 and
connected matters. The learned single
10 Judge adverted to the various aspects of
the law and came to hold that there was
no basis for the Petitioners to contend
that the decision of the learned Assistant
Public Prosecutor to file an application
15 Under Section 321 Code of Criminal
Procedure was taken independently by
him, whereas the subsequent decision
after pursuing application Under
Section 321 Code of Criminal Procedure
20 was under the dictates of the
Respondent.
On the basis of the directions given by
the Lt. Governor, the Assistant Public
Prosecutor filed an application for
25 withdrawal of the earlier application for
withdrawal of the prosecution. The
application for withdrawal clearly states
that after thorough examination of case
file and evidence on record, he found
30 that there is sufficient evidence for
proceeding against the accused persons
and hence, the earlier application was to
dispose of as not pressed.
Being of this view, the High Court
35 declined to exercise the discretionary
jurisdiction Under Article 226 of the
Constitution. The said order became the
subject matter of intra-court appeals.
The Division Bench of the High Court
40 adverting to many a facet dismissed the
appeals as not maintainable as well as
barred by limitation. The legal propriety
of the order passed by the Division
Bench of the High Court was called in
45 question before this Court in a Special
Leave Petition (C) CC Nos. 7447-7448
of 2014 which were dismissed vide
order dated 09.05.2014.
In the meantime, the order passed on
50 07.01.2012 by the learned Magistrate in
various cases pertaining to the accused
persons was called in question in a
number of revisions before the
revisional court. The learned special
55 Judge, Patiala House Courts while
dealing with the revision petition,
narrated the facts in entirety, noted the
contentions advanced by the learned
Counsel for the parties and opined that
60 any party who has a right to file an
application/petition before a court of a
Magistrate, has an inherent right to
withdraw the same and as a corollary
thereof the court of a Magistrate will
65 have the jurisdiction to allow the
application seeking withdrawal of
application for withdrawal from the
prosecution. He distinguished between
the two concepts, namely, withdrawal of
70 the order taking cognizance and grant of
permission to withdrawal an application
for withdrawal from the prosecution.
Being of this view, he dismissed the
revision applications vide order dated
75 15.11.2014.
The accused Respondents remaining
embedded to their indefatigable
propensity preferred series of petitions
before the High Court of Delhi which on
80 15.05.2015 said that Let both sides file
short synopsis of not more than 5-7
pages with relevant case laws, if any,
within a week from today, after
exchanging the same. Put up for orders
85 on 29th May, 2015. In the meanwhile, let
trial court fix a date after the date fixed
in these petitions.
42
 On 22.05.2015 an application was filed
on behalf of the Appellant to initiate
proceedings Under Section 340 Code of
Criminal Procedure read with
5 Section 195(1) Code of Criminal
Procedure or to initiate contempt
proceedings against the accused persons.
On 22.05.2015 a preliminary common
written synopsis of the Appellant was
10 filed seeking dismissal of Crl. M.C. No.
2055 of 2015. On 29.05.2015, the High
Court directed for listing the petition for
clarification. As the facts would reveal,
on 15.07.2015 the High Court directed
15 to file short synopsis within a week. The
said order was complied with.
21. In the course of hearing, it was
contended by the learned Counsel for
the Petitioner before the High Court that
20 there is no provision under which an
application preferred Under
Section 321 Code of Criminal Procedure
can be withdrawn. Reliance was placed
on Patel Narshi Thakershi and Ors. v.
25 Pradyuman Singh Ji Arjun Singh Ji
AIR 1970 SC 1273, R.R. Verma and
Ors. v. Union of India and Ors 1980 (3)
SCC 402 and Subhash Chander v. State
(Chandigarh Administration) and Ors.
30 AIR 1980 SC 423 to contend that the
power of review having not been
specifically provided, the same cannot
be exercised by the Magistrate. It was
also urged that when there was no
35 change in circumstances, the application
for withdrawal from the prosecution was
misconceived and the courts below had
erred in law in permitting the
withdrawal of the application without
40 application of mind. That apart, it was
propounded that both the courts below
had gravely erred in understanding the
law laid down by the Apex Court,
especially,Sheonandan Paswan v. State
45 of Bihar and Ors. AIR 1983 SC 194 :
1983 (1) SCC 438 and that the learned
Magistrate as well as the Special Court
fell into error by not holding that
application for withdrawal of
50 application preferred Under
Section 321 Code of Criminal Procedure
was wholly unjustified. The learned
Counsel for the State supported the
action taken by the Government and the
55 order passed by the courts below.
22. Considering the submissions raised
by the learned Counsel for the parties,
the learned single Judge after referring
to the authorities and the role of the
60 Public Prosecutor Under
Section 321 Code of Criminal Procedure
opined thus:
...indisputably it is the Public
Prosecutor who has to take the
65 call and not the Government or
the Lieutenant Governor. So,
dismissal of writ petition against
grant of consent by Lieutenant
Governor to the withdrawal of
70 application Under
Section 321 of Code of Criminal
Procedure has been erroneously
relied upon by the courts below,
particularly when right to pursue
75 remedies before the criminal
courts was preserved while
deciding the writ petition....
Being of this view, the High Court
directed as follows: Consequentially,
80 impugned orders are quashed with
direction to the trial court to decide
within four weeks the second
application of 16th December, 2011
(Annexure P-13) i.e. the one for
85 withdrawal of application Under
Section 321 of the Code of Criminal
Procedure in the light of the legal
position as highlighted above and after
taking it into consideration, the
90 document(s) filed by the Petitioner
43
 along with application Under
Section 91 of Code of Criminal
Procedure.
After the High Court passed the order,
5 the learned Magistrate took up the
applications seeking withdrawal of the
applications preferred earlier Under
Section 321 of Code of Criminal
Procedure. The learned Magistrate has,
10 by order dated 22.09.2015, declined to
accept the prayer for withdrawal of the
application.
The Appellant in these appeals had
basically challenged the order passed by
15 the learned Single Judge by which he
had set aside the order granting
withdrawal of the application Under
Section 321 Code of Criminal Procedure
and directing the trial court to decide the
20 application for withdrawal afresh after
taking into consideration the documents
filed by the informant along with the
application filed Under Section 91 Code
of Criminal Procedure. After the remit,
25 the learned Magistrate has passed the
order declining permission to withdraw
the application. The said order is also
assailed before this Court.
We have heard Mr. Dushyant A. Dave,
30 learned senior Counsel and Ms. Indu
Malhotra, learned senior Counsel for the
Appellant and Mr. Sushil Kumar,
learned senior Counsel for the accused.
The issues that arise for consideration
35 are (i) whether the Assistant Public
Prosecutor is entitled under law to file
an application for withdrawal of the
application for withdrawal of the
application preferred Under
40 Section 321 of the Code of Criminal
Procedure and not to press an
application for withdrawal, (ii) whether
the Magistrate is disabled in law or lacks
jurisdiction to allow the prosecution
45 from preferring the application for
withdrawal, (iii) whether the accused
has any say at that stage of the
proceeding and (iv) whether in the
obtaining factual matrix this Court
50 should decline to deal with the order
passed by the learned Magistrate in
exercise of jurisdiction Under
Article 136 of the Constitution of India.
33. To appreciate the controversy, we
55 may refer to Section 321 of Code of
Criminal Procedure which reads as
follows:
Sec 321 Withdrawal from prosecution. -
The Public Prosecutor or Assistant Public
60 Prosecutor in charge of a case may, with
the consent of the Court, at any time before
the judgment is pronounced, withdraw from
the prosecution of any person either
generally or in respect of any one or more
65 of the offences for which he is tried; and,
upon such withdrawal,-
(a) if it is made before a charge has been
framed, the accused shall be discharged in
respect of such offence or offences; (b) if it
70 is made after a charge has been framed, or
when under this Code no charge is
required, he shall be acquitted in respect of
such offence or offences:
Provided that where such offence-(i) was
75 against any law relating to a matter to
which the executive power of the Union
extends, or(ii) was investigated by the Delhi
Special Police Establishment under the
Delhi Special Police Establishment Act,
80 1946 (25 of 1946), or(iii) involved the
misappropriation or destruction of, or
damage to, any property belonging to the
Central Government, or(iv) was committed
by a person in the service of the Central
85 Government while acting or purporting to
act in the discharge of his official duty, and
44
 the Prosecutor in charge of the case has not
been appointed by the Central Government,
he shall not, unless he has been permitted
by the Central Government to do so, move
5 the Court for its consent to withdraw from
the prosecution and the Court shall, before
according consent, direct the Prosecutor to
produce before it the permission granted by
the Central Government to withdraw from
10 the prosecution.
Regard being had to the language
employed in Section 321 Code of
Criminal Procedure, we may refer to the
Constitution Bench decision
15 in Sheonandan Paswan v. State of
Bihar and Ors. (1987) 1 SCC 288
wherein the Court referred to
Section 333 of the old Code and after
taking note of the language employed
20 Under Section 321 of the present Code
came to hold that Section 321 enables
the Public Prosecutor, in charge of the
case to withdraw from the prosecution
of any person at any time before the
25 judgment is pronounced, but the
application for withdrawal has to get the
consent of the court and if the court
gives consent for such withdrawal the
accused will be discharged if no charge
30 has been framed or acquitted if charge
has been framed or where no such
charge is required to be framed. It
clothes the Public Prosecutor to
withdraw from the prosecution of any
35 person, accused of an offence, both
when no evidence is taken or even if
entire evidence has been taken. The
outer limit for the exercise of this power
is 'at any time before the judgment is
40 pronounced'. It has also been observed
that the judicial function implicit in the
exercise of the judicial discretion for
granting the consent would normally
mean that the court has to satisfy itself
45 that the executive function of the Public
Prosecutor has not been improperly
exercised, or that it is not an attempt to
interfere with the normal course of
justice for illegitimate reasons or
50 purposes.
In Rahul Agarwal v. Rakesh Jain and
Anr. (2005) 2 SCC 377, the Court
while dealing with the application Under
Section 321 Code of Criminal Procedure
55 ruled thus:
From these decisions as well as other
decisions on the same question, the law
is very clear that the withdrawal of
prosecution can be allowed only in the
60 interest of justice. Even if the
Government directs the Public
Prosecutor to withdraw the prosecution
and an application is filed to that effect,
the court must consider all relevant
65 circumstances and find out whether the
withdrawal of prosecution would
advance the cause of justice. If the case
is likely to end in an acquittal and the
continuance of the case is only causing
70 severe harassment to the accused, the
court may permit withdrawal of the
prosecution. If the withdrawal of
prosecution is likely to bury the dispute
and bring about harmony between the
75 parties and it would be in the best
interest of justice, the court may allow
the withdrawal of prosecution. The
discretion Under Section 321, Code of
Criminal Procedure is to be carefully
80 exercised by the court having due regard
to all the relevant facts and shall not be
exercised to stifle the prosecution which
is being done at the instance of the
aggrieved parties or the State for
85 redressing their grievance. Every crime
is an offence against the society and if
the accused committed an offence,
society demands that he should be
punished. Punishing the person who
90 perpetrated the crime is an essential
requirement for the maintenance of law
45
 and order and peace in the society.
Therefore, the withdrawal of the
prosecution shall be permitted only
when valid reasons are made out for the
5 same.
38. In this context, reference to a two-
Judge Bench decision in Vijaykumar
Baldev Mishra alias Sharma v. State of
Maharashtra (2007) 12 SCC 687 would
10 be fruitful. In the said case, the Court
held that Section 321 Code of Criminal
Procedure provides for withdrawal from
prosecution at the instance of the Public
Prosecutor or Assistant Public
15 Prosecutor. Indisputably therefore the
consent of the Court is necessary.
Application of mind on the part of the
Court, therefore, is necessary in regard
to the grounds for withdrawal from the
20 prosecution in respect of any one or
more of the offences for which the
Appellant is tried. The Public Prosecutor
in terms of the statutory scheme laid
down under the Code of Criminal
25 Procedure plays an important role. He is
supposed to be an independent person.
While filing such an application, the
Public Prosecutor also is required to
apply his own mind and the effect
30 thereof on the society in the event such
permission is granted.
We have enumerated the principles
pertaining to the jurisdiction of the
Court while dealing with an application
35 preferred Under Section 321 Code of
Criminal Procedure and also highlighted
the role of the Public Prosecutor who is
required to act in good faith, peruse the
materials on record and form an
40 independent opinion that the withdrawal
from the prosecution would really
subserve the public interest at large. The
authorities referred to hereinabove
clearly spell out that Public Prosecutor
45 is not supposed to act as a post office
and he is expected to remember his duty
to the Court as well as his duty to the
collective.
In the case at hand, when the order
50 passed by the Lt. Governor was assailed
in Writ Petition (C) No. 3470 of 2012
and connected matters, the learned
single Judge analyzing the
communication and other facts referred
55 to all the decisions earlier taken by the
Committee and its recommendations
made for withdrawal from the
prosecution in the cases. Thereafter, the
learned single Judge scrutinized the
60 minutes of the meeting and took note of
the fact that the Screening Committee
on 13.09.2011 had apparently not apply
its own mind or made a thorough
scrutiny of the charge-sheets filed in the
65 cases but heavily relied upon the
examination of the cases by the Ministry
of Home Affairs, Department of Legal
Affairs, Law and Justice with the
approval of the Union Home Minister.
70 The learned single Judge further opined
that the observations of the Ministry of
Home Affairs did not demonstrate any
specific consideration of the charge-
sheet either by the Department of Legal
75 Affairs, Ministry of Law and Justice or
by the Ministry of Home Affairs.
The learned single Judge has observed
that the accused persons who were the
Petitioners in the Writ Petitions had
80 already opposed the withdrawal of the
application preferred Under
Section 321 Code of Criminal Procedure
but still they had a right to pursue the
matter further and to raise all the issues
85 available to them in appropriate
proceedings. On a perusal of the
aforesaid judgment, it becomes clear as
crystal that the Writ Court had not found
any fault with the instructions given by
90 the Government not to press the
46
 application for withdrawal. The Writ
Court had not opined with regard to the
role of the Public Prosecutor in not
pressing the application. It had only
5 observed that it was not disputed that the
Petitioners had already taken recourse to
the remedy in respect of the order of the
learned Metropolitan Magistrate
permitting the withdrawal of the
10 application Under Section 321 Code of
Criminal Procedure.
In the impugned order herein, the
learned single Judge has observed that
no doubt the withdrawal from
15 prosecution is an executive and non-
judicial act but there is a wide discretion
with the court, which ought to be
exercised judicially on well established
principles. That is to say, the court has
20 to be satisfied that the executive
function of the Public Prosecutor has not
been improperly exercised or that it is
not an attempt to interfere with the
course of justice for illegitimate
25 purposes. It is within these parameters,
the judicial discretion is to be exercised.
Before we proceed to dwell upon the
power of the Magistrate to grant
permission for not pressing the
30 application, we think it necessary to
delve into legality of the direction issued
by the High Court to the Magistrate to
consider the documents filed by the
accused persons along with the
35 application preferred Under
Section 91 Code of Criminal Procedure
Section 91 Code of Criminal Procedure
reads as follows:
Section 91. Summons to produce document
40 or other thing.- (1) Whenever any Court or
any officer in charge of a police station
considers that the production of any
document or other thing is necessary or
desirable for the purposes of any
45 investigation, inquiry, trial or other
proceeding under this Code by or before
such Court or officer, such Court may issue
a summons, or such officer a written order,
to the person in whose possession or power
50 such document or thing is believed to be,
requiring him to attend and produce it, or to
produce it, at the time and place stated in
the summons or order.
(2) Any person required under this section
55 merely to produce a document or other
thing shall be deemed to have complied with
the requisition if he causes such document
or thing to be produced instead of attending
personally to produce the same.
60 (3) Nothing in this section shall be deemed-
(a) to affect Sections 123 and 124 of the
Indian Evidence Act, 1872 (1 of 1872), or
the Bankers' Books Evidence Act, 1891 (13
of 1891) or
65 (b) to apply to a letter, postcard, telegram
or other document or any parcel or thing in
the custody of the postal or telegraph
authority.
The scope and ambit of the said
70 provision was considered in State of
Orissa v. Debendra Nath Padhi (2005)
1 SCC 568, wherein this Court has held
thus:
The first and foremost requirement of
75 the section is about the document being
necessary or desirable. The necessity or
desirability would have to be seen with
reference to the stage when a prayer is
made for the production. If any
80 document is necessary or desirable for
the defence of the accused, the question
of invoking Section 91 at the initial
stage of framing of a charge would not
arise since defence of the accused is not
85 relevant at that stage. When the section
refers to investigation, inquiry, trial or
47
 other proceedings, it is to be borne in
mind that under the section a police
officer may move the court for
summoning and production of a
5 document as may be necessary at any of
the stages mentioned in the section.
Inso-far as the accused is concerned, his
entitlement to seek order Under
Section 91 would ordinarily not come
10 till the stage of defence. When the
section talks of the document being
necessary and desirable, it is implicit
that necessity and desirability is to be
examined considering the stage when
15 such a prayer for summoning and
production is made and the party who
makes it, whether police or accused. If
Under Section 227, what is necessary
and relevant is only the record produced
20 in terms of Section 173 of the Code, the
accused cannot at that stage invoke
Section 91 to seek production of any
document to show his innocence. Under
Section 91summons for production of
25 document can be issued by court and
under a written order an officer in
charge of a police station can also direct
production thereof. Section 91 does not
confer any right on the accused to
30 produce document in his possession to
prove his defence.
Section 91 presupposes that when the
document is not produced process may
be initiated to compel production
35 thereof.
The aforesaid enunciation of law clearly
states about the scope of
Section 91 Code of Criminal Procedure
and we are in respectful agreement with
40 the same.
In the case at hand, the learned
Magistrate was directed by the High
Court to consider the application filed
by the Assistant Public Prosecutor
45 seeking withdrawal of the application
earlier preferred Under
Section 321 Code of Criminal
Procedure. In such a situation, it is
difficult to appreciate how Section 91 of
50 Code of Criminal Procedure can be
taken aid of by the accused persons. In
view of the same, we have no shadow of
doubt that the High Court has fallen into
error by permitting the accused persons
55 to file an application Section 91 Code of
Criminal Procedure.
Having said so, we have to address
whether the High Court was justified in
remitting the matter to the learned
60 Magistrate for reconsideration of the
application seeking withdrawal of the
earlier application filed Under
Section 321Code of Criminal Procedure.
Needless to say, if the order of the High
65 Court is set aside, the consequential
order by learned Magistrate has to pave
the path of extinction. The High Court
on earlier occasion while disposing of
Writ Petition (C) No. 3470 of 2012 and
70 connected matters had clearly opined
that the decision by the Lt. Governor
directing to withdraw the application
was justified. The said order had
attained finality after the special leave
75 petitions assailing the same stood
dismissed. The High Court on the earlier
occasion had only observed that the
accused persons had the right to pursue
the matter further and to raise all the
80 issues available to them in appropriate
proceedings. By the impugned order, the
learned single Judge by placing reliance
on certain authorities has held that
decidedly it is the Public Prosecutor
85 who has to take the decision and not the
Government or the Lt. Governor and so
that dismissal of the writ petition against
grant of consent by Lt. Governor to the
withdrawal of application Under
90 Section 321 of Code of Criminal
Procedure had been erroneously relied
48
 upon by the courts below, particularly
when right to pursue remedies before
the criminal courts was preserved while
deciding the writ petition.
5 We need not advert to the width of
liberty granted to the accused persons by
the writ court. The heart of the matter is
whether the approach by the learned
single Judge in passing the impugned
10 order is legally correct. There can be no
cavil over the proposition that when an
application of withdrawal from the
prosecution Under Section 321Code of
Criminal Procedure is filed by the
15 Public Prosecutor, he has the sole
responsibility and the law casts an
obligation that he should be satisfied on
the basis of materials on record keeping
in view certain legal parameters. The
20 Public Prosecutor having been satisfied,
as the application would show, had filed
the application. The said application was
not taken up for hearing. The learned
Magistrate had not passed any order
25 granting consent for withdrawal, as he
could not have without hearing the
Assistant Public Prosecutor. At this
juncture, the authority decided regard
being had to the fact situation that the
30 Assistant Public Prosecutor should
withdraw the application and not press
the same. After such a decision had been
taken, as the application would show,
the Assistant Public Prosecutor has re-
35 appreciated the facts, applied his mind
to the totality of facts and filed the
application for not pressing the
application preferred earlier Under
Section 321 Code of Criminal
40 Procedure. The filing of application not
to press the application cannot be
compared with any kind of review of an
order passed by the court. Question of
review can arise when an order has been
45 passed by a court. Section 362 Code of
Criminal Procedure bars the Court from
altering or reviewing when it has signed
the judgment or final order disposing of
a case except to correct a clerical or
50 arithmetical error. The said provision
cannot remotely be attracted. The filing
of the application for seeking
withdrawal from prosecution and
application not to press the application
55 earlier filed are both within the domain
of Public Prosecutor. He has to be
satisfied. He has to definitely act
independently and as has been held by
the Constitution Bench in Sheonandan
60 Paswan (supra), for he is not a post
office. In the present case, as the facts
would graphically show, the Public
Prosecutor had not moved the
application Under Section 321 Code of
65 Criminal Procedure but only filed. He
could have orally prayed before the
court that he did not intend to press the
application. We are inclined to think, the
court could not have compelled him to
70 assist it for obtaining consent. The court
has a role when the Public Prosecutor
moves the application seeking the
consent for withdrawing from the
prosecution. At that stage, the court is
75 required to see whether there has been
independent application of mind by the
Public Prosecutor and whether other
ingredients are satisfied to grant the
consent. Prior to the application being
80 taken up being moved by the Public
Prosecutor, the court has no role. If the
Public Prosecutor intends to withdraw or
not press the application, he is entitled
to do so. The court cannot say that the
85 Public Prosecutor has no legal authority
to file the application for not pressing
the earlier application. It needs no
special emphasis to state that the
accused persons cannot be allowed to
90 contest such an application. We fail to
fathom, how the accused persons can
contest the application and also file
documents and take recourse to
49
 Section 91 Code of Criminal Procedure.
The kind of liberty granted to the
accused persons is absolutely not in
consonance with the Code of Criminal
5 Procedure. If anyone is aggrieved in
such a situation, it is the victim, for the
case instituted against the accused
persons on his FIR is sought to be
withdrawn. The accused persons have
10 no role and, therefore, the High Court
could not have quashed the orders
permitting the prosecution to withdraw
the application and granting such liberty
to the accused persons. The principle
15 stating that the Public Prosecutor should
apply his mind and take an independent
decision about filing an application
Under Section 321 Code of Criminal
Procedure cannot be faulted but
20 stretching the said principle to say that
he is to convince the court that he has
filed an application for not pressing the
earlier application would not be
appropriate. We are disposed to think so
25 as the learned Magistrate had not dealt
with the earlier application. Therefore,
the impugned order dated 30.07.2015
passed by the High Court is set aside. As
the impugned order is set aside,
30 consequentially the order passed by the
learned Magistrate on 22.09.2015 has to
pave the path of extinction and we so
direct. The learned Magistrate is
directed to proceed with the cases in
35 accordance with law. We may hasten to
add that we have not expressed any
opinion on the merits of the case. All
our observations and the findings are to
be restricted for the purpose of
40 adjudication of the controversy raised.
50
 Dharmeshbhai Vasudevbhai vs. State of Gujrat (2009) 6 SCC 576

Objectives:

1. To distinguish between inquiry and investigation

2. Scope of Section 156 (3) & Section 202 of the Code

Relevant Sections on the hierarchy of Courts under CrPC (Sections 6 to 23)

• The Court of Session ( Section 9)

• Metropolitan Magistrate ( Section 16)
5 • Judicial Magistrates first Class ( Section 11)
• Judicial Magistrates Second Class ( Section 11)
• Executive Magistrate ( Section 20)
The above courts are constituted under the Code of Criminal Procedure, whereas the High
Courts and Supreme Court are constituted under Article 124 and 214 of Indian Constitution,
10 respectively.

JUDGMENT The complaint is hereby ordered to be

S.B. Sinha, J.
Appellants herein are depositors in City
Cooperative Bank Ltd. (the Bank), a
bank incorporated and registered under
15 the Gujarat Co-operative Societies Act,
1962.
Some of the borrowers had mortgaged
their properties with the bank. Alleging
commission of offences under
20 Sections 406, 420, 423, 465, 477, 468, 4
71, 120B, 124 and 34 of the Indian
penal Code and investigation against the
accused persons - respondents herein,
the bank filed a complaint petition
25 before the Second Court of Judicial
Magistrate First Class, Surat praying for
a direction upon the Rander Police
Station to register a complaint.
By an order dated 11.6.2004, the learned
30 Magistrate upon consideration of the
said allegations directed as under:
registered as the Inquiry Case and is
ordered to be sent to Rander Police Station
35 under Section 156(3) for the Police
Investigation. On being investigating the
offence the Investigating Officer has to
submit the report of Investigation on or
before 12.7.2004 before this Court.
40 However, the complainant filed an
application before the learned
Magistrate on or about 6.7.2004
informing the learned Court that a
compromise had been entered into by
45 and between the accused and the bank
pursuant whereto and in furtherance
whereof, an order was passed, directing:
As the compromise has been taken place
between the complainant and the accused
50 which is being proclaimed by Ex.4, the
complainant don't want to proceed further
with the complaint, the order is being
passed to withdraw the inquiry. It is to be
informed to the concerned Police Station.
55 Questioning the legality and validity
thereof, the appellants filed Writ

51
 Petitions before the High Court. The
main judgment was passed in the case of
Writ Petition No. 3771 of 2005. Before
the High Court, a contention was raised
5 that once a complaint is sent for
registration of the first information
report and investigation on the
allegations contained therein, the
learned Magistrate had no jurisdiction to
10 recall the order. Reliance in this behalf,
inter alia, was placed on the decision of
this Court in Subramanium
Sethuraman v. State of Maharashtra and
Anr. 2004 CriLJ 4609 .
15 The High Court, however, upon taking
note of the fact that at the relevant point
of time, an administrator had been
functioning under the direct control and
supervision of the District Registrar, Co-
20 operative Societies, in absence of any
allegation that he had exercised his
power mala fide, declined to interfere
with the said order dated 6.7.2004,
stating: It appears that the petitioners
25 were not in the picture, either at the time
when the complaint was filed and/or at
the time when the learned Magistrate
passed the order for investigation under
Section 156(3) of Cr.P.C. or at the time
30 when the settlement purshis was filed
and the learned Magistrate passed the
offer of recalling the inquiry in the
month of July 2004. As such in normal
circumstances, the petitioners who are
35 depositors of the bank can be said as
third party to the programmes of the
complaint and subsequent there to in
case of S.M.S. Jayaraj (Supra), the case
before the Apex Court was pertaining to
40 the grant of licence for liquor and,
therefore, while considering the
question of locus standi it was observed
that the appellant before the Apex Court
was the person, who was having the
45 business in the area can have locus. In
any case, it was not matter for
considering the question of locus standi
in criminal prosecution and, therefore,
the said decision is of no help to the
50 petitioners.
Mr. U.U. Lalit, learned senior counsel
appearing on behalf of the appellant,
would submit that the High Court
committed a serious error in passing the
55 impugned order insofar as it failed to
take into consideration that the learned
Magistrate could not have recalled his
earlier order passed in terms of Sub-
section (3) of Section 156 of the Code of
60 Criminal Procedure.
It is well settled that any person may set
the criminal law in motion subject of
course to the statutory interdicts. When
an offence is committed, a first
65 information report can be lodged under
Section 154 of the Code of Criminal
Procedure. A complaint petition may
also be filed in terms of
Section 200 thereof. However, in the
70 event for some reasons or the other, the
first information report is not recorded
in terms of Sub-section (1) of
Section 156 of the Code, the magistrate
is empowered under Sub-section (3) of
75 Section 156 thereof to order an
investigation into the allegations
contained in the complaint petition.
Thus, power to direct investigation may
arise in two different situations - (1)
80 when a first information report is
refused to be lodged; or (2) when the
statutory power of investigation for
some reason or the other is not
conducted.
85 When an order is passed under Sub-
section (3) of Section 156 of the Code,
an investigation must be carried out.
Only when the investigating officer
arrives at a finding that the alleged
90 offence has not been committed by the
accused, he may submit a final form; On
the other hand, upon investigation if it is
found that a prima facie case has been
made out, a charge-sheet must be filed.
52
 9. Interference in the exercise of the
statutory power of investigation by the
Police by the Magistrate far less
direction for withdrawal of any
5 investigation which is 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
10 have any inherent power. Ordinarily, he
has no power to recall his order.
This aspect of the matter has been
considered by this Court in S.N.
Sharma v. Bipen Kumar Tiwari and Ors.
15 1970 CriLJ 764 , wherein the law has
been stated as under:
6. Without the use of the expression "if
he thinks fit", the second alternative
could have been held to be independent
20 of the first; but the use of this
expression, in our opinion, makes it
plain that the power conferred by the
second clause of this section is only an
alternative to the power given by the
25 first clause and can, therefore, be
exercised only in those cases in which
the first clause is applicable.
It may also be further noticed that, even
in Sub-section (3) of Section 156, the
30 only power given to the Magistrate, who
can take cognizance of an offence under
Section 190, is to order an investigation;
there is no mention of any power to stop
an investigation by the police. The
35 scheme of these sections, thus, clearly is
that the power of the police to
investigate any cognizable offence is
uncontrolled by the Magistrate, and it is
only in cases where the police decide
40 not to investigate the case that the
Magistrate can intervene and either
direct an investigation, or, in the
alternative, himself proceed or depute a
Magistrate subordinate to him to
45 proceed to enquire into the case. The
power of the police to investigate has
been made independent of any control
by the Magistrate.
Interpreting the aforementioned
50 provisions vis-a-vis the lack of inherent
power in the Magistrate in terms of
Section 561-A of the Old Criminal
procedure Code (equivalent to
Section 482 of the new Code of
55 Criminal procedure), it was held: This
interpretation, to some extent, supports
the view that the scheme of the Criminal
Procedure Code is that the power of the
police to investigate a cognizable
60 offence is not to be interfered with by
the judiciary. Their Lordships of the
Privy Council were, of course,
concerned only with the powers of the
High Court under Section 561A CrPC,
65 while we have to interpret
Section 159 of the Code which defines
the powers of a Magistrate which he can
exercise on receiving a report from the
police of the cognizable offence under
70 Section 157 of the Code. In our opinion,
Section 159 was really intended to give
a limited power to the Magistrate to
ensure that the police investigate all
cognizable offences and do not refuse to
75 do so by abusing the right granted for
certain limited cases of not proceeding
with the investigation of the offence.
Yet again in Devarapalli
Lakshminarayana Reddy and Ors. v. V.
80 Narayana Reddy and Ors.
1976CriLJ1361 , this Court, upon
comparison of the provision of the old
Code and the new Code, held as under:
7. Section 156(3) occurs in Chapter XII,
85 under the caption : "Information to the
Police and their powers to investigate";
while Section 202 is in Chapter XV which
bears the heading: "Of complaints to
Magistrates". The power to order police
90 investigation under Section 156(3) is
different from the power to direct
investigation conferred by Section 202(1).
The two operate in distinct spheres at
53
 different stages. The first is exercisable at
the pre-cognizance stage, the second at the
post-cognizance stage when the Magistrate
is in seisin of the case. That is to say in the
5 case of a complaint regarding the
commission of a cognizable offence, the
power under Section 156(3) can be
invoked by the Magistrate before he takes
cognizance of the offence under
10 Section 190(1)(a). But if he once takes
such cognizance and embarks upon the
procedure embodied in Chapter XV, he is
not competent to switch back to the pre-
cognizance stage and avail of
15 Section 156(3). It may be noted further
that an order made under Sub-section (3)
of Section 156, is in the nature of a
peremptory reminder or intimation to the
police to exercise their plenary powers of
20 investigation under Section 156(1). Such
an investigation embraces the entire
continuous process which begins with the
collection of evidence under
Section 156 and ends with a report or
25 charge-sheet under Section 173. On the
other hand, Section 202 comes in at a stage
when some evidence has been collected by
the Magistrate in proceedings under
Chapter XV, but the same is deemed
30 insufficient to take a decision as to the
next step in the prescribed procedure. In
such a situation, the Magistrate is
empowered under Section 202 to direct,
within the limits circumscribed by that
35 section an investigation "for the purpose of
deciding whether or not there is sufficient
ground for proceeding". Thus the object of
an investigation under Section 202 is not
to initiate a fresh case on police report but
40 to assist the Magistrate in completing
proceedings already instituted upon a
complaint before him.
The learned Magistrate directed carrying
out of an investigation by the
45 investigating officer and submit a report
to it. If an investigation was to be
carried out in terms of Section 156(3) of
the Code, the same could not have been
equated with an enquiry as the two
50 expressions have differently been
defined in Section 3(h) and 3(i) of the
Code. In any event, the learned
Magistrate did not have any jurisdiction
to recall the said order. The High Court,
55 therefore, in our opinion was not correct
in refusing to consider the contention
raised on behalf of the appellants that
the Magistrate had no jurisdiction in that
behalf.
60 In Adalat Prasad v. Rooplal Jindal and
Ors. (2004) 7 SCC 338 , although this
aspect of the matter has not been
considered but having regard to the
power exercised by the Magistrate under
65 Chapter XVI and XVII of the Code, it
was held:14. But after taking cognizance
of the complaint and examining the
complainant and the witnesses if he is
satisfied that there is sufficient ground
70 to proceed with the complaint he can
issue process by way of summons under
Section 204 of the Code. Therefore,
what is necessary or a condition
precedent for issuing process under
75 Section 204 is the satisfaction of the
Magistrate either by examination of the
complainant and the witnesses or by the
inquiry contemplated under
Section 202 that there is sufficient
80 ground for proceeding with the
complaint hence issue the process under
Section 204 of the Code. In none of
these stages the Code has provided for
hearing the summoned accused, for
85 obvious reasons because this is only a
preliminary stage and the stage of
hearing of the accused would only arise
at a subsequent stage provided for in the
latter provision in the Code. It is true as
90 held by this Court in Mathew case that
before issuance of summons the
Magistrate should be satisfied that there
is sufficient ground for proceeding with
the complaint but that satisfaction is to
95 be arrived at by the inquiry conducted
by him as contemplated under
Sections 200 and 202, and the only stage
of dismissal of the complaint arises
54
 under Section 203 of the Code at which
stage the accused has no role to play,
therefore, the question of the accused on
receipt of summons approaching the
5 court and making an application for
dismissal of the complaint under
Section 203 of the Code on a
reconsideration of the material available
on record is impermissible because by
10 then Section203 is already over and the
Magistrate has proceeded further to
Section 204 stage. Adalat Prasad has
been followed by this Court in Everest
Advertising (P) Ltd. v. State,
15 Government of NCT of Delhi and Ors.
2007 CriLJ 2442 and Dinesh
Dalmia v. CBI 2008 CriLJ 337 .
For the reasons aforementioned, the
impugned judgments cannot be
20 sustained which are set aside
accordingly. persons intend to question
the legality of the order passed by the
learned Magistrate dated 11.6.2004, they
will be at liberty to take recourse to the
25 remedies available to them in law.
Points for discussion:
What is the role of judicial officers in
the investigation, can Magistrate
supervise investigation? Why judicial
30 officers are kept away from direct
involvement of investigation?
If Judicial officer orders for inquiry
by police in such situation can he
supervise it?
35 Point out distinction between
investigation, inquiry and trial
55
 State of Gujarat vs. Girish Radhakrishnan Varde

(2014) 3 SCC 659

Objective:

1. To understand the power of magistrate

2. When alteration of charges may be allowed
3. Distinction between complaint case and case registered through FIR

Issue Involved:

Whether the learned magistrate by virtue of the powers conferred upon him under Chapter
XV of the Code of Criminal Procedure 1973 under the Heading of "Complaints to
Magistrate" can be permitted to allow the complainant/informant to add additional sections
of the Indian Penal Code into the chargesheet after the same was submitted by the police
on completion of investigation of the police case based on a first information report
registered under Section 154 Code of Criminal Procedure.

JUDGMENT submitted by the police on completion

Gyan Sudha Misra, J.
This SLP against order of learned single
Judge of Gujrat HC, who was pleased to
5 dismiss the application filed by the
Appellant-State of Gujarat upholding
the order passed by the learned Addl.
District & Sessions Judge, Deesa who
had set aside the order of the Chief
10 Judicial Magistrate by which he had
permitted the complainant to add
Sections 364, 394 and 398 of the Indian
Penal Code ('Indian Penal Code' for
short) into the chargesheet which was
15 submitted after police investigation.
The principal question which arises for
determination in the instant appeal is
whether the learned magistrate by virtue
of the powers conferred upon him under
20 Chapter XV of the Code of Criminal
Procedure 1973 under the Heading of
"Complaints to Magistrate" can be
permitted to allow the
complainant/informant to add additional
25 sections of the Indian Penal Code into
the chargesheet after the same was
of investigation of the police case based
on a first information report registered
30 under Section 154 Code of Criminal
Procedure.
n 27.3.2009 a first information report
came to be registered with Deesa City
Police Station being I. Cr. 59/09 for the
35 offences punishable
u/Ss 365, 387, 511, 386, 34, 120B and 5
06(2) of the Indian Penal Code and
under Section 25(1)(A) of the Arms Act,
1959. The FIR disclosed that the
40 informant/complainant-Deepakkumar
Dhirajlal Thakkar resident of Deesa
Taluka was sitting at the temple of Sai
Baba against whom a conspiracy was
hatched by the accused No.
45 1/Respondent along with other accused
persons as a result of which the
Respondent along with accused persons
came towards the complainant in one
Alto Car bearing registration No. GJ-1-
50 HP-1 and rushed towards the
complainant with country made
pistol/revolver. On reaching there, the
Respondent pointed the pistol towards

56
 the complainant and demanded money
from him. Before the victim-
complainant could understand anything
with respect to the demand made or
5 could have realised the nature of the
situation, the Respondent-accused along
with the other accused persons caught
hold of the complainant and tried to
kidnap him. In an instant reaction to this
10 well-planned and deliberated conspiracy
hatched by the Respondent for robbing
and kidnapping the complainant, the
complainant raised an alarm as a
consequence of which the people
15 standing nearby immediately rushed to
the spot of crime. Looking at the
assembly of people, the accused persons
immediately sat in the car and fled from
the scene of occurrence. This was not
20 the first time when such offence was
committed by the Respondent against
the complainant but on a prior occasion
also, the Respondent had extorted Rs.
50,000/- from the complainant by
25 putting the complainant under fear of
death. However, the FIR which was
registered included sections referred to
hereinbefore but failed to include
Sections 364, 394 and 398 of the Indian
30 Penal Code which should have been
included as per the prosecution.
After the police investigation was
complete on the basis of the FIR
registered and a chargesheet was
35 submitted by the police before the
learned Magistrate, Deesa which
included
Sections 365, 511, 387, 386, 34, 120B a
nd 506(2) as also under
40 Section 25(1)(A) of the Arms Act, the
complainant noticed that despite the fact
that the Respondent-accused robbed Rs.
50,000/- from the complainant on one
previous occasion and this time again
45 attempted to rob and kidnap the
complainant, the offences punishable
under Section 364, 394 and 398 of
Indian Penal Code were not included in
the chargesheet which was filed against
50 Respondent and other accused persons.
In order to rectify the said error the
complainant submitted an application
before the learned Magistrate, Deesa for
adding other
55 Sections364, 394 and 398 of the Indian
Penal Code who after hearing the parties
was pleased to allow the application
bearing No. 1754/2009 and permitted
further additions of
60 Sections 364, 394 and 398 of Indian
Penal Code into the chargesheet.
The Respondent-accused feeling
aggrieved and dissatisfied with the
aforesaid order preferred criminal
65 revision before the Additional District &
Sessions Judge, Deesa who was pleased
to quash and set aside the order dated
7.8.2010. State filed a Special Criminal
Application No. 2477/2010 before the
70 High Court of Gujarat against order of
Addl. Session Judge.
The High Court of Gujarat vide its
impugned judgment and order was
pleased to uphold the order dated
75 23.9.2010 passed by the Additional
District & Sessions Judge, Deesa which
according to the Appellant is illegal and
perverse as the learned Additional
District & Sessions Judge did not assign
80 any cogent and convincing reason while
setting aside the order of the Chief
Judicial Magistrate who had permitted
the addition of three sections of the
Indian Penal Code into the chargesheet
85 before committing the matter for trial.
While analysing the controversy raised
in this appeal, it is clearly obvious that
the entire dispute revolves around the
procedural wrangle and the correct
90 course to be adopted by the trial court
57
 while taking cognizance but in the entire
process it appears that the distinction
between a case lodged by way of a
complaint before the magistrate
5 commonly referred to as complaint case
under Section 190 of the Code of
Criminal Procedure and a case
registered on the basis of a first
information report under Section 154 of
10 the Code of Criminal Procedure before
the police, seems to have been missed
out, meaning thereby that the distinction
between the procedure prescribed under
Chapter XII of the Code of Criminal
15 Procedure to be adopted in a case based
on police report and the procedure
prescribed under Chapter XIV and
Chapter XV for cases based on a
complaint case lodged before the
20 magistrate has clearly been overlooked
or lost sight of. It may be relevant to
record at this stage that the term
'complaint' has been defined in the Code
of Criminal Procedure and it means the
25 allegations made orally or in writing to a
magistrate, with a view to taking action
under the Code due to the fact that some
person, whether known or unknown, has
committed an offence but does not
30 include a police report lodged under
Section 154 Code of Criminal Procedure
Section 190(1) of the Code of Criminal
Procedure contains the provision for
cognizance of offences by the
35 Magistrates and it provides three ways
by which such cognizance can be taken
which are reproduced hereunder:
(a) Upon receiving a complaint of facts
which constitute such offence;
40 (b) upon a police report in writing of such
facts--that is, facts constituting the offence--
made by any police officer;
(c) upon information received from any
person other than a police officer or upon
45 the Magistrate's own knowledge or
suspicion that such offence has been
committed.
An examination of these provisions
makes it clear that when a Magistrate
50 takes cognizance of an offence upon
receiving a complaint of facts which
constitute such offence, a case is
instituted in the Magistrate's Court and
such a case is one instituted on a
55 complaint. Again, when a Magistrate
takes cognizance of any offence upon a
report in writing of such. facts made by
any police officer it is a case instituted
in the Magistrate's court on a police
60 report. The scheme underlying Code of
Criminal Procedure clearly reveals that
anyone who wants to give information
of an offence may either approach the
Magistrate or the officer in charge of a
65 Police Station. If the offence
complained of is a non-cognizable one,
the Police Officer can either direct the
complainant to approach the Magistrate
or he may obtain permission of the
70 Magistrate and investigate the offence.
Similarly anyone can approach the
Magistrate with a complaint and even if
the offence disclosed is a serious one,
the Magistrate is competent to take
75 cognizance of the offence and initiate
proceedings. It is open to the Magistrate
but not obligatory upon him to direct
investigation by police. Thus two
agencies have been set up for taking
80 offences to the Court.
But the instant matter arises out of a
case which is based on a police report as
a first information report had been
lodged before the police at Deesa Police
85 Station under Section 154 of the Code of
Criminal Procedure and, therefore, the
investigation was conducted by the
police authorities in terms of procedure
prescribed under Chapter XII of the
90 Code of Criminal Procedure and
thereafter chargesheet was submitted. At
58
 this stage, the Chief Judicial Magistrate
after submission of the chargesheet
appears to have entertained an
application of the complainant for
5 addition of three other sections into the
chargesheet, completely missing that if
it were a complaint case lodged by the
complainant before the magistrate under
Section 190(a) of the Code of Criminal
10 Procedure, obviously the magistrate had
full authority and jurisdiction to conduct
enquiry into the matter and if at any
stage of the enquiry, the magistrate
thought it appropriate that other
15 additional sections also were fit to be
included, the magistrate obviously
would not be precluded from adding
them after which the process of
cognizance would be taken by the
20 magistrate and then the matter would be
committed for trial before the
appropriate court.
But if a case is registered by the police
based on the FIR registered at the Police
25 Station under Section 154 Code of
Criminal Procedure and not by way of a
complaint under Section 190(a) of the
Code of Criminal Procedure before the
magistrate, obviously the magisterial
30 enquiry cannot be held in regard to the
FIR which had been registered as it is
the investigating agency of the police
which alone is legally entitled to
conduct the investigation and, thereafter,
35 submit the chargesheet unless of course
a complaint before the magistrate is also
lodged where the procedure prescribed
for complaint cases would be applicable.
In a police case, however after
40 submission of the chargesheet, the
matter goes to the magistrate for
forming an opinion as to whether it is a
fit case for taking cognizance and
committing the matter for trial in a case
45 which is lodged before the police by
way of FIR and the magistrate cannot
exclude or include any section into the
chargesheet after investigation has been
completed and chargesheet has been
50 submitted by the police.
The question, therefore, emerges as to
whether the
complainant/informant/prosecution
would be precluded from seeking a
55 remedy if the investigating authorities
have failed in their duty by not including
all the sections of Indian Penal Code on
which offence can be held to have been
made out in spite of the facts disclosed
60 in the FIR. The answer obviously has to
be in the negative as the prosecution
cannot be allowed to suffer prejudice by
ignoring exclusion of the sections which
constitute the offence if the investigating
65 authorities for any reason whatsoever
have failed to include all the offence
into the chargesheet based on the FIR on
which investigation had been conducted.
But then a further question arises as to
70 whether this lacunae can be allowed to
be filled in by the magistrate before
whom the matter comes up for taking
cognizance after submission of the
chargesheet and as already stated, the
75 magistrate in a case which is based on a
police report cannot add or subtract
sections at the time of taking cognizance
as the same would be permissible by the
trial court only at the time of framing of
80 charge under Section 216, 218 or under
Section228 of the Code of Criminal
Procedure as the case may be which
means that after submission of the
chargesheet it will be open for the
85 prosecution to contend before the
appropriate trial court at the stage of
framing of charge to establish that on
the given state of facts the appropriate
sections which according to the
90 prosecution should be framed can be
allowed to be framed. Simultaneously,
the accused also has the liberty at this
59
 stage to submit whether the charge
under a particular provision should be
framed or not and this is the appropriate
forum in a case based on police report to
5 determine whether the charge can be
framed and a particular section can be
added or removed depending upon the
material collected during investigation
as also the facts disclosed in the FIR and
10 the chargesheet.
In the alternative, if a case is based on a
complaint lodged before the magistrate
under Section 190 or 202 Code of
Criminal Procedure, the magistrate has
15 been conferred with full authority and
jurisdiction to conduct an enquiry into
the complaint and thereafter arrive at a
conclusion whether cognizance is fit to
be taken on the basis of the sections
20 mentioned in the complaint or further
sections were to be added or subtracted.
The Code of Criminal Procedure has
clearly engrafted the two channels
delineating the powers of the magistrate
25 to conduct an enquiry in a complaint
case and police investigation based on
the basis of a case registered at a police
station where the investigating
authorities of the police conducts
30 investigation under Chapter XII and
there is absolutely no ambiguity in
regard to these procedures.
In spite of this unambiguous course of
action to be adopted in a case based on
35 police report under Chapter XII and a
magisterial complaint under Chapter
XIV and XV, when it comes to
application of the provisions of the Code
of Criminal Procedure in a given case,
40 the affected parties appear to be bogged
down often into a confused state of
affairs as it has happened in the instant
matter since the magisterial powers
which is to deal with a case based on a
90
45 complaint before the magistrate and the
police powers based on a police
report/FIR has been allowed to overlap
and the two separate course of actions
are sought to be clubbed which is not
50 the correct procedure as it is not in
consonance with the provisions of the
Code of Criminal Procedure The
affected parties have to apprise
themselves that if a case is registered
55 under Section 154 Code of Criminal
Procedure by the police based on the
FIR and the chargesheet is submitted
after investigation, obviously the correct
stage as to which sections would apply
60 on the basis of the FIR and the material
collected during investigation
culminating into the chargesheet, would
be determined only at the time framing
of charge before the appropriate trial
65 court. In the alternative, if the case
arises out of a complaint lodged before
the Magistrate, then the procedure laid
down under Sections 190 and 200 of the
Code of Criminal Procedure clearly
70 shall have to be followed.
Since the instant case is based on the
FIR lodged before the police, the correct
stage for addition or subtraction of the
Sections will have to be determined at
75 the time of framing of charge. 18. As a
consequence of the aforesaid analysis,
we although do not approve of the order
of the Chief Judicial magistrate who
permitted addition of three Sections into
80 the chargesheet after the chargesheet
was submitted, we are further of the
view that the Additional District &
Sessions Judge and the High Court
ought to have specified the correct
85 course of action to be adopted by the
magistrate and the
complainant/prosecution party, failure
of which got the matter enmeshed into
this litigation impeding the trial.
60
 S.R. Sukumar vs. S. Sunaad Raghuram

(2015) 9 SCC 609

Objectives:

1. Amendment in Criminal Complaint, if permissible

2. Meaning of term ‘cognizance’
3. Comparison of old code and new code
4. Easily Curable Legal Infirmities & Prejudice to accused – Amendment can be
allowed

JUDGMENT

R. Banumathi, J.

This appeal arises out of an order dated
20.01.2012 passed by the High Court of
5 Karnataka at Bangalore in Criminal
Petition No. 5077/2007 wherein the
High Court declined to quash the order
dated 21.06.2007 passed in PCR No.
8409/2007 thereby confirming the order
10 passed by the VII Addl. Chief
Metropolitan Magistrate, Bangalore
permitting the Respondent to carry out
the amendment in a criminal complaint
on the premise that the amendment was
15 made prior to taking cognizance of the
offence.
On 9.05.2007, Respondent filed the
complaint Under Section 200 Code of
Criminal Procedure against the first
20 Appellant and his mother Smt. H.R.
Leelavathi (A-2) alleging that they have
committed the offences punishable
Under Sections 120-
B, 499 and 500 Indian Penal Code. In
25 the complaint, the Respondent has
alleged that he was born of the wedlock
of his father late Shri S.G. Raghuram
and mother Late Smt. B.S. Girija.
However, his father after the death of
30 his mother Girija, married another
divorcee lady namely Smt. H.R.
Leelavathi (A-2) who at the time of the
second marriage, already had a son aged
six years S.H. Sukumar (Appellant),
35 born from her previous wedlock. The
Respondent alleged in the complaint that
his father's name i.e. Late Shri S.G.
Raghuram has been purportedly used by
the Appellant portraying as if he is his
40 natural father. Respondent alleged that
the act of the Appellant using name of
Respondent's father as his own father
often created doubts among the near and
dear ones about the legitimacy of the
45 Respondent-complainant and integrity
and character of his father which had
affected the Respondent's reputation.
Respondent filed the complaint on
9.05.2007 and his statement was
50 recorded in part on 18.05.2007 and
further recorded on 23.05.2007. Next
day i.e. on 24.05.2007, Respondent
moved an application seeking
amendment to the complaint by praying
55 for insertion of paras 11(a) and 11(b) in
the complaint stating the fact of poem
named ‘Khalnayakaru’ written by the
Appellant in connivance with his mother
(A-2) depicting the Respondent as
60 Villain-‘Khalnayak’, with an intention
to malign the character, image and status
of the Respondent. The trial court

61
 allowed the amendment on 24.05.2007
and took the cognizance of the offence
and directed issuance of the process to
the Appellant vide Order dated
5 21.06.2007. Aggrieved by the Order
dated 21.06.2007, the Appellant
approached the High Court praying for
quashing the proceedings in PCR No.
8409/2007 registered as C.C. No.
10 15851/2007 on the ground that there is
no provision under the Code, providing
for amendment of the complaint. The
High Court vide impugned Order dated
20.01.2012 dismissed the petition filed
15 by the Appellant observing that before
the date of allowing amendment
application i.e. 24.05.2007, cognizance
of case was not taken and therefore no
prejudice is caused to the Appellant.
20 Further, the High Court was of the view
that if amendment is not allowed, then
the multiple proceedings would have
ensued between the parties.
Appellant contended that under the
25 Code of Criminal Procedure there is no
provision for amendment of complaint
and in the absence of any specific
provision in the Code, courts below
erred in allowing the amendment in
30 criminal complaint. It was submitted
that on 18.05.2007, the Magistrate took
cognizance of the complaint for the first
time and the Magistrate allowed the
amendment application on 24.05.2007
35 and the Magistrate again took
cognizance of case for the second time
on 21.06.2007 and thus the cognizance
taken twice by the Magistrate is
impermissible under the law. It was
40 further submitted that once cognizance
was taken, the Magistrate ought not to
have allowed the amendment and the
impugned order is liable to be set aside.
Per contra, learned Counsel for the
45 Respondent contended that the
Respondent-complainant was examined
in Court on oath in part on 18.05.2007
and his examination was deferred to
23.05.2007 for further inquiry and
50 during the course of inquiry, the
amendment application was filed and
the same was allowed in order to avoid
multiplicity of proceedings. It was
further contended that on 18.05.2007, no
55 cognizance was taken and therefore it
would be wrong to suggest that
cognizance was taken twice by the
Magistrate. It was submitted that though
there is no enabling provision in the
60 Code of Criminal Procedure to amend
the complaint and there is no specific
bar in carrying out the amendment and
in the interest of justice, Court has
power to do so.
65 Upon consideration of the rival
contentions and materials on record, the
points falling for determination are:
(i) in the facts of the case, when did the
Magistrate take cognizance of the
70 complaint for the first time i.e. on
18.05.2007 or on 21.06.2007, when the
Magistrate satisfied of a prima facie
case to take cognizance of the
complaint;
75 (ii) whether amendment to a complaint
filed Under Section 200 Code of
Criminal Procedure is impermissible in
law and whether the order allowing the
amendment suffers from serious
80 infirmity.
8. Section 200 Code of Criminal
Procedure provides for the procedure for
Magistrate taking cognizance of an
offence on complaint. The Magistrate is
85 not bound to take cognizance of an
offence merely because a complaint has
been filed before him when in fact the
complaint does not disclose a cause of
62
 action. The language in
Section 200 Code of Criminal
Procedure "a Magistrate taking
cognizance of an offence on complaint
5 shall examine upon oath the
complainant and the witnesses present,
if any..." clearly suggests that for taking
cognizance of an offence on complaint,
the Court shall examine the complainant
10 upon oath. The object of examination of
the complainant is to find out whether
the complaint is justifiable or is
vexatious. Merely because the
complainant was examined that does not
15 mean that the Magistrate has taken
cognizance of the offence. Taking
cognizance of an offence means the
Magistrate must have judicially applied
the mind to the contents of the
20 complaint and indicates that Magistrate
takes judicial notice of an offence.
Mere presentation of the complaint and
receipt of the same in the court does not
mean that the Magistrate has taken
25 cognizance of the offence. In Narsingh
Das Tapadia v. Goverdhan Das Partani
and Anr. AIR 2000 SC 2946, it was
held that the mere presentation of a
complaint cannot be held to mean that
30 the Magistrate has taken the cognizance.
In Subramanian Swamy v. Manmohan
Singh and Anr. (2012) 3 SCC 64, this
Court explained the meaning of the
word 'cognizance' holding that "...In
35 legal parlance cognizance is taking
judicial notice by the court of law,
possessing jurisdiction, on a cause or
matter presented before it so as to
decide whether there is any basis for
40 initiating proceedings and
determination of the cause or matter
judicially".
Section 200 Code of Criminal Procedure
contemplates a Magistrate taking
45 cognizance of an offence on complaint
to examine the complaint and examine
upon oath the complainant and the
witnesses present, if any. Then normally
three courses are available to the
50 Magistrate. The Magistrate can either
issue summons to the accused or order
an inquiry Under Section 202 Code of
Criminal Procedure or dismiss the
complaint Under Section 203 Code of
55 Criminal Procedure Upon consideration
of the statement of complainant and the
material adduced at that stage if the
Magistrate is satisfied that there are
sufficient grounds to proceed, he can
60 proceed to issue process Under
Section 204Code of Criminal Procedure
Section 202 Code of Criminal Procedure
contemplates 'postponement of issue of
process'. It provides that the Magistrate
65 on receipt of a complaint of an offence
of which he is authorised to take
cognizance may, if he thinks fit,
postpones the issue of process for
compelling the attendance of the person
70 complained against, and either inquire
into the case himself, or have an inquiry
made by any Magistrate subordinate to
him, or an investigation made by a
police officer, or by some other person
75 for the purpose of deciding whether or
not there is sufficient ground for
proceeding. If the Magistrate finds no
sufficient ground for proceeding, he can
dismiss the complaint by recording
80 briefly the reasons for doing so as
contemplated Under Section 203 Code
of Criminal Procedure A Magistrate
takes cognizance of an offence when he
decides to proceed against the person
85 accused of having committed that
offence and not at the time when the
Magistrate is just informed either by
complainant by filing the complaint or
by the police report about the
90 commission of an offence.
63
 “Cognizance” therefore has a reference
to the application of judicial mind by the
Magistrate in connection with the
commission of an offence and not
5 merely to a Magistrate learning that
some offence had been committed. Only
upon examination of the complainant,
the Magistrate will proceed to apply the
judicial mind whether to take
10 cognizance of the offence or not. Under
Section 200 Code of Criminal
Procedure, when the complainant is
examined, the Magistrate cannot be said
to have ipso facto taken the cognizance,
15 when the Magistrate was merely
gathering the material on the basis of
which he will decide whether a prima
facie case is made out for taking
cognizance of the offence or not.
20 "Cognizance of offence" means taking
notice of the accusations and applying
the judicial mind to the contents of the
complaint and the material filed
therewith. It is neither practicable nor
25 desirable to define as to what is meant
by taking cognizance. Whether the
Magistrate has taken cognizance of the
offence or not will depend upon facts
and circumstances of the particular case.
30 12. In S.K. Sinha, Chief Enforcement
Officer v. Videocon International Ltd.
And Ors. (2008) 2 SCC 492,
considering the scope of expression
"cognizance" it was held as under:
35 The expression "cognizance" has not
been defined in the Code. But the
word (cognizance) is of indefinite
import. It has no esoteric or mystic
significance in criminal law. It merely
40 means "become aware of" and when
used with reference to a court or a
Judge, it connotes "to take notice of
judicially". It indicates the point
when a court or a Magistrate takes
45 judicial notice of an offence with a
view to initiating proceedings in
respect of such offence said to have
been committed by someone.
13. A three Judge Bench of this Court in
50 the case of R.R. Chari v. State of Uttar
Pradesh 1951 SCR 312, while
considering what the phrase 'taking
cognizance' mean, approved the decision
of Calcutta High Court
55 in Superintendent and Remembrancer of
Legal Affairs, West Bengal v. Abani
Kumar Banerjee AIR 1950 Cal. 437,
wherein it was observed that:
...What is "taking cognizance" has
60 not been defined in the Code of
Criminal Procedure and I have no
desire now to attempt to define it. It
seems to me clear, however, that
before it can be said that any
65 Magistrate has taken cognizance of
any offence Under Section 190(1)(a),
Code of Criminal Procedure, he must
not only have applied his mind to the
contents of the petition, but he must
70 have done so for the purpose of
proceeding in a particular way as
indicated in the subsequent provisions
of this Chapter,-proceeding Under
Section 200, and thereafter sending it
75 for enquiry and report Under
Section 202. When the Magistrate
applies his mind not for the purpose
of proceeding under the subsequent
sections of this Chapter, but for
80 taking action of some other kind, e.g.,
ordering investigation Under
Section 156(3), or issuing a search
warrant for the purpose of the
investigation, he cannot be said to
85 have taken cognizance of the
offence....
(Underlining added)
64
 The same view was reiterated by this
Court in Jamuna Singh and
Ors. v. Bhadai Sah : (1964) 5 SCR 37
and Nirmaljit Singh Hoon v. State of
5 West Bengal and Anr. (1973) 3 SCC
753.
Elaborating upon the words expression
"taking cognizance" of an offence by a
Magistrate within the contemplation of
10 Section 190 Code of Criminal
Procedure, in Devarapally
Lakshminarayana Reddy and Ors. v.
V. Narayana Reddy and Ors AIR 1976
SC 1672, this Court held as under:
15 ...But from the scheme of the Code,
the content and marginal heading of
Section190 and the caption of Chapter
XIV under which Sections 190 to
199 occur, it is clear that a case can be
20 said to be instituted in a court only
when the court takes cognizance of
the offence alleged therein. The ways
in which such cognizance can be
taken are set out in Clauses (a), (b)
25 and (c) of Section 190(1). Whether the
Magistrate has or has not taken
cognizance of the offence will depend
on the circumstances of the particular
case including the mode in which the
30 case is sought to be instituted, and the
nature of the preliminary action, if
any, taken by the Magistrate. Broadly
speaking, when on receiving a
complaint, the Magistrate applies his
35 mind for the purposes of proceeding
Under Section 200 and the succeeding
sections in Chapter XV to the Code of
1973, he is said to have taken
cognizance of the offence within the
40 meaning to Section 190(1)(a). It,
instead of proceeding under Chapter
XV, he has, in the judicial exercise of
his discretion, taken action of some
other kind, such as issuing a search
45 warrant for the purpose of
investigation, or ordering
investigation by the police Under
Section 156(3), he cannot be said to
have taken cognizance of any offence.
50 Contention of the Appellant is that the
act of taking cognizance of an offence
by the Magistrate precedes the
examination of the complainant Under
Section 200 Code of Criminal Procedure
55 and the learned Senior Counsel for the
Appellant placed reliance on the
decision of this Court in CREF Finance
Ltd. v. Shree Shanthi Homes (P) Ltd.
And Anr. (2005) 7 SCC 467 wherein this
60 Court has held as under:
10. In the instant case, the Appellant
had filed a detailed complaint before
the Magistrate. The record shows that
the Magistrate took cognizance and
65 fixed the matter for recording of the
statement of the complainant on 1-6-
2000. Even if we assume, though that
is not the case, that the words
"cognizance taken" were not to be
70 found in the order recorded by him
on that date, in our view that would
make no difference. Cognizance is
taken of the offence and not of the
offender and, therefore, once the
75 court on perusal of the complaint is
satisfied that the complaint discloses
the commission of an offence and
there is no reason to reject the
complaint at that stage, and proceeds
80 further in the matter, it must be held
to have taken cognizance of the
offence. One should not confuse
taking of cognizance with issuance of
process. Cognizance is taken at the
85 initial stage when the Magistrate
peruses the complaint with a view to
ascertain whether the commission of
any offence is disclosed. The issuance
of process is at a later stage when
90 after considering the material placed
65
 before it, the court decides to proceed
against the offenders against whom a
prima facie case is made out. It is
possible that a complaint may be filed
5 against several persons, but the
Magistrate may choose to issue
process only against some of the
accused. It may also be that after
taking cognizance and examining the
10 complainant on oath, the court may
come to the conclusion that no case is
made out for issuance of process and
it may reject the complaint....
(Underlining added)
15 In our considered view, the above
decision is of no assistance to the
Appellant. A perusal of the above
decision would show that this Court has
emphasized upon the satisfaction of the
20 Court to the commission of offence as a
condition precedent for taking
cognizance of offence. However, in the
facts of the said case, Court was of the
view that the cognizance was taken by
25 the Magistrate once the Magistrate
applied his mind on the contents of the
complaint and on the satisfaction that
prima facie case existed.
16. In the present case, the complaint
30 was filed on 9.05.2007 and the matter
was adjourned to 15.05.2007 and on that
date on request for inquiry, the matter
was adjourned to 18.05.2007. On
18.05.2007, statement of complainant
35 was recorded in part and the order sheet
for 18.05.2007 reads as under:
Complainant is present with Shri N.V.
Adv. Cognizance taken Under
Section 200 of Code of Criminal
40 Procedure r/w statement Complainant is
recorded in part. Now 5.35 p.m. hence
on request call on 23.5.2007.
On 23.05.2007, the complainant was
present and his statement was recorded
45 and the same was marked as Ex. P-1 and
annexures A to G were referred. On
request, the matter was adjourned to
24.05.2007 on which date the
complainant filed application Under
50 Section 200 Code of Criminal Procedure
seeking amendment to the complaint by
adding paras 11(a) and 11(b) and the
said application was allowed. Amended
complaint was filed and one witness was
55 examined for the complainant on
2.06.2007. On 21.06.2007, the
Magistrate passed the detailed order
recording his satisfaction to proceed
against the Appellant (A-1) and also
60 observing that there are no sufficient
grounds to proceed against Smt. H.R.
Leelavathi and ordered issuance of
summons to accused No. 1-Appellant
herein. Before examination of the
65 complainant, the Court was yet to make
up the mind whether to take cognizance
of the offence or not. It is wrong to
contend that the Magistrate has taken
cognizance of the case even on
70 18.5.2007 when the Magistrate has
recorded the statement of complainant-
Respondent in part and even when the
Magistrate has not applied his judicial
mind. Even though the order dated
75 18.05.2007 reads "cognizance taken
Under Section 200 Code of Criminal
Procedure"; the same is not grounded in
reality and actual cognizance was taken
only later.
80 Insofar as merits of the contention
regarding allowing of amendment
application, it is true that there is no
specific provision in the Code to amend
either a complaint or a petition filed
85 under the provisions of the Code, but the
Courts have held that the petitions
seeking such amendment to correct
curable infirmities can be allowed even
66
 in respect of complaints. In U.P.
Pollution Control Board v. Modi
Distillery and Ors. : (1987) 3 SCC 684,
wherein the name of the company was
5 wrongly mentioned in the complaint that
is, instead of Modi Industries Ltd. the
name of the company was mentioned as
Modi Distillery and the name was
sought to be amended. In such factual
10 background, this Court has held as
follows:
...The learned Single Judge has
focussed his attention only on the
technical flaw in the complaint and
15 has failed to comprehend that the
flaw had occurred due to the
recalcitrant attitude of Modi
Distillery and furthermore the
infirmity is one which could be easily
20 removed by having the matter
remitted to the Chief Judicial
Magistrate with a direction to call
upon the Appellant to make the
formal amendments to the averments
25 contained in para 2 of the complaint
so as to make the controlling company
of the industrial unit figure as the
concerned accused in the complaint.
All that has to be done is the making
30 of a formal application for
amendment by the Appellant for leave
to amend by substituting the name of
Modi Industries Limited, the
company owning the industrial unit,
35 in place of Modi Distillery....
Furthermore, the legal infirmity is of
such a nature which could be easily
cured....
What is discernible from the U.P.
40 Pollution Control Board's case is that
easily curable legal infirmity could be
cured by means of a formal application
for amendment. If the amendment
sought to be made relates to a simple
45 infirmity which is curable by means of a
formal amendment and by allowing such
amendment, no prejudice could be
caused to the other side, notwithstanding
the fact that there is no enabling
50 provision in the Code for entertaining
such amendment, the Court may permit
such an amendment to be made. On the
contrary, if the amendment sought to be
made in the complaint does not relate
55 either to a curable infirmity or the same
cannot be corrected by a formal
amendment or if there is likelihood of
prejudice to the other side, then the
Court shall not allow such amendment
60 in the complaint.
In the instant case, the amendment
application was filed on 24.05.2007 to
carry out the amendment by adding
paras 11(a) and 11(b). Though, the
65 proposed amendment was not a formal
amendment, but a substantial one, the
Magistrate allowed the amendment
application mainly on the ground that no
cognizance was taken of the complaint
70 before the disposal of amendment
application. Firstly, Magistrate was yet
to apply the judicial mind to the contents
of the complaint and had not taken
cognizance of the matter. Secondly,
75 since summons was yet to be ordered to
be issued to the accused, no prejudice
would be caused to the accused. Thirdly,
the amendment did not change the
original nature of the complaint being
80 one for defamation. Fourthly, the
publication of poem 'Khalnayakaru'
being in the nature of subsequent event
created a new cause of action in favour
of the Respondent which could have
85 been prosecuted by the Respondent by
filing a separate complaint and therefore
to avoid multiplicity of proceedings, the
trial court allowed the amendment
application. Considering these factors
90 which weighed in the mind of the courts
below, in our view, the High Court
67
 rightly declined to interfere with the
order passed by the Magistrate allowing
the amendment application and the
impugned order does not suffer from
5 any serious infirmity warranting
interference in exercise of jurisdiction
Under Article 136 of the Constitution of
India.
The appeal is dismissed. The trial court
10 is directed to take up the matter and
dispose the same in accordance with law
as early as possible. It is made clear that
we have not expressed any opinion on
the merits of the matter.

15

68
 Prof. N.K.Ganguly vs. CBI, New Delhi
(2015) 4 MLJ (Crl) 605 (SC)
Objectives:
1. Previous Sanction when necessary
2. Scope of S. 197 of the Code
JUDGMENT
V. Gopala Gowda, J.
On 30.11.2010, a criminal case was
registered Under Section 120-B of the
Indian Penal Code read with
Section 13(1)(d) and 13(2) of the
5 Prevention of Corruption Act, 1988 on
the basis of written complaint filed by
M.R. Atrey, Sub-Inspector of Police,
CBI, EOU, VII, New Delhi against the
Appellants herein namely N.K.
10 Ganguly, the then Director General,
Mohinder Singh, the then Sr. Dy.
Director General-Admin, P.D. Seth, the
then Financial Advisor, A.K. Srivastava,
Executive Engineer, all from ICMR,
15 New Delhi and B.C. Das, the then
Director ICPO, NOIDA and other
unknown persons in the matter relating
to the alleged unauthorized and illegal
transfer of plot No. 119, Sector 35,
20 NOIDA, measuring 9712.62 sq. meters
from ICPO, NOIDA to ICPO-ICMR
Cooperative Group Housing Society
Ltd. NOIDA ("ICPO-ICMR Housing
Society").
25 In the preliminary inquiry in the matter,
it was found that the aforesaid officials
and the other unknown persons had
entered into a criminal conspiracy by
abusing their official position as public
30 servants and had unauthorisedly and
illegally transferred the aforesaid plot
from ICPO to ICPO-ICMR Housing
Society at a consideration of Rs.
4,33,90,337/- which was much lower
35 than the then prevailing sector rate of
Rs. 18,000/- per sq.mtrs. of NOIDA,
thereby, giving themselves and other
members of the ICPO-ICMR Housing
Society an undue pecuniary advantage.
40 It was further revealed that the officers
of New Okhla Industrial Development
Authority allowed the transfer of the
said plot unauthorisedly and illegally
from ICPO to ICPO-ICMR Housing
45 Society, despite the fact that they were
not competent to pass such order of
transfer.
During the course of investigation by
CBI, apart from the aforesaid named
50 accused persons in the FIR, the fact of
the involvement of other officials
namely, L.D. Pushp, the then
Administrative Officer, ICPO, Jatinder
Singh, the then Senior Accounts Officer,
55 ICMR, Dr. S.K. Bhattacharya, the then
Additional Director General, ICMR, Dr.
Bela Shah, Head of NCD Division,
ICMR, Smt. Bhawani Thiagarajan, the
then Joint Secretary, Ministry of Health
60 and Family Welfare, Government of
India, S.C. Pabreja, the then Manager
(Residential Plots), NOIDA and R.S.
Yadav, OSD (Residential Plots),
NOIDA, was revealed.
65 After completion of the investigation, a
charge-sheet was filed against the
Appellants for the alleged offences
committed by them on account of
unauthorised and illegal transfer of the
69
 plot in question in favour of the ICPO-
ICMR Housing Society.
The competent authority of ICMR
granted sanction Under Section 19 of
5 the P.C. Act, 1988 for prosecuting A.K.
Srivastava and Dr. Bela Shah. The
charge-sheet was filed before the
learned Special Judge, Anti Corruption,
CBI against all the Appellants, except
10 R.S. Yadav, OSD, NOIDA, Under
Section 173(2) of Code of Criminal
Procedure for the offences punishable
Under Section 120-B of Indian Penal
Code read with
15 Section 13(1)(d) and 13(2) of the P.C.
Act, 1988. The requisite sanction for
prosecution against R.S. Yadav was
declined by the Competent Authority.
After considering the charge-sheet and
20 other materials available on record, the
learned Special Judge came to the
conclusion that a prima facie case
appeared to have been made out by the
CBI against the Appellants.
25 Accordingly, the learned Special Judge
vide his order dated 08.11.2012 has
taken cognizance and summons were
issued against the Appellants to face the
trial for the said offences.
30 Aggrieved of the order of taking
cognizance and issuance of summons,
the Appellants filed applications before
the High Court of Allahabad Under
Section 482 of Code of Criminal
35 Procedure, urging various grounds and
prayed that the entire proceedings on the
file of the learned Special Judge in the
case No. 18 of 2012 be quashed. Finding
no merit in the applications filed by the
40 Appellants, the High Court refused to
interfere with the order of the learned
Special Judge dated 08.11.2012 and
dismissed the same.
Issues: 1) Whether an offence Under
45 Section 120B Indian Penal Code is
made out against the Appellants, and if
so, whether previous sanction of the
Central Government is required to
prosecute them for the same?
50 2) Whether the order dated 08.11.2012
passed by the learned Special Judge
taking cognizance of the offence against
the Appellants is legal and valid?
Answer to Point Nos. 1 and 2:
55 The issue of prior sanction required to
be obtained against the Appellants in
order to prosecute them for the offence
said to have been committed by them
Under Section 120B, Indian Penal Code
60 has to be examined in light of the
allegations contained in the charge-sheet
that was filed before the learned Special
Judge by the Respondent herein.
13. The learned senior Counsel
65 appearing on behalf of the Appellants
contended that the entire transaction of
transferring the plot in question in
favour of the ICPO-ICMR Housing
Society was handled in a transparent
70 manner, and it was done keeping in
view the dire need of housing of the
employees of ICPO-ICMR. The learned
senior Counsel submitted that the
transfer of the said plot from ICPO to
75 the ICPO-ICMR Housing Society was
done after obtaining legal opinions and
necessary sanction from the competent
authority of NOIDA. The learned senior
Counsel further contended that the CBI
80 withheld the report of the Comptroller
and Auditor General of India (CAG)
while submitting the charge-sheet before
the learned Special Judge, which is not
tenable in law.
70
 14. It is further contended by Mr. P.P.
Khurana, and Mr. Gopal Subramanium,
the learned senior Counsel appearing on
behalf of some of the Appellants that no
5 prior sanction was obtained from the
Central Government, which was
mandatorily required Under
Section 197, Code of Criminal
Procedure as the Appellants were
10 employed as public servants at the time
of commission of the alleged offences. It
is contended by them that the transfer of
the plot in question occurred when the
Appellants were holding public office
15 and the alleged offences were
committed by them, if at all, in
discharge of their official duty. Thus,
the learned Special Judge erred in taking
cognizance of the offences alleged
20 against the Appellants without prior
sanction of the Central Government
having been obtained by the
Respondent. The learned senior Counsel
further contended that the learned
25 Special Judge should not have taken
cognizance in the absence of prior
sanction obtained from the Central
Government, especially in light of the
fact that taking cognizance of the
30 alleged offences and setting the wheel of
the criminal justice system in motion is
a matter which could affect the
fundamental rights guaranteed to the
Appellants Under
35 Articles 14, 19 and 21 of the
Constitution of India.
On the other hand, Mr. P.S. Patwalia,
the learned Additional Solicitor General
and Ms. Kiran Suri, learned senior
40 Counsel appearing on behalf of the
Respondent contended that the legal
submissions advanced by the learned
senior Counsel appearing on behalf of
the Appellants are wholly untenable in
45 law for the reason that the very act of
the Appellants constitute an offence
under Indian Penal Code, as they
entered into a conspiracy to illegally
transfer the plot in question in favour of
50 the said society referred to Supra
without obtaining the permission of the
competent authority of NOIDA, with an
ulterior motive to make unlawful gain
for themselves. The Appellants became
55 members of the ICPO-ICMR Housing
Society, even though they were not
eligible to be enrolled as members of the
society, and thereafter proceeded to
transfer the plot at a value which was
60 much lesser than the prevailing market
rate at the time, thus making an
unlawful gain for themselves, which is
an offence Under Section 13(1)(d) of the
P.C. Act, 1988, punishable Under
65 Section 13(2) of the Act. It is further
contended that the CBI filed the charge-
sheet against the Appellants after due
investigation, and therefore, the High
Court has rightly dismissed the
70 applications filed by them Under
Section 482 of Code of Criminal
Procedure by passing a valid judgment
and order which does not call for
interference by this Court in exercise of
75 its appellate jurisdiction. The illegal acts
done by the Appellants in transferring
the said plot at a lower price cannot be
said to have been carried out in exercise
of their official duty. Therefore, no
80 previous sanction from the Competent
Authority was required Under
Section 197 of Code of Criminal
Procedure to prosecute the Appellants
for the alleged offence.
85 In the instant case, it is alleged in the
charge-sheet that the Appellants entered
into an agreement to commit an illegal
act, which is an offence punishable
Under Section 120B of Indian Penal
90 Code. Therefore, the provision of
Section 197 of Code of Criminal
Procedure is squarely applicable to the
71
 facts of the case. Prior sanction of the
Central Government was required to be
taken by the Respondent before the
learned Special Judge took cognizance
5 of the offence once the final report was
filed Under Section 173(2) of Code of
Criminal Procedure. In this regard, Mr.
Gopal Subramanium, learned senior
Counsel appearing on behalf of the
10 Appellant has very aptly placed reliance
on the decision of a three judge bench of
this Court in the case of R.R.
Chari v. State of Uttar Pradesh AIR
1951 SC 207, wherein, while examining
15 the scope of Section 197 of Code of
Criminal Procedure, this Court made an
observation indicating that the term
"cognizance" indicates the stage of
initiation of proceedings against a public
20 servant. The Court placed reliance upon
the judgment of the Calcutta High Court
delivered in the case of Superintendent
and Remembrance of Legal Affairs,
West Bengal v. Abhani Kumar
25 Bannerjee AIR 1950 Cal 437, wherein
it was held that before taking
cognizance of any offence, a Magistrate
must not only be said to have applied his
mind to the contents of the petition but
30 he must have done so for the purpose of
proceeding in a particular way as
indicated in the subsequent provisions of
this Chapter,--proceeding Under
Section 200, and thereafter sending it for
35 enquiry and report Under Section 202.
When the Magistrate applies his mind
not for the purpose of proceeding under
the subsequent sections of this Chapter,
but for taking action of some other kind,
40 e.g., ordering investigation Under
Section 156(3), or issuing a search
warrant for the purpose of the
investigation, he cannot be said to have
taken cognizance of the offence.
45 Both the learned senior Counsel placed
reliance on another judgment of a three
judge bench of this Court
inShreekantiah Ramayya
Munipalli v. State of BombayAIR 1955
50 SC 287. In that case, the allegation
against the Appellant therein and two
other government servants was that they
had conspired to defraud the
Government in respect of certain
55 properties and arranged to sell the goods
to the approver. The case against them
was registered Under Section 120-
B read with Section 409 of Indian Penal
Code. While considering the contention
60 advanced that the said acts could not be
said to have been committed in
discharge of official duty, Bose, J.
placed reliance upon the observations
made by the Federal Court in the case
65 of Dr. Hori Ram Singh v. Emperor AIR
1939 FC 43, wherein Vardachariar, J
observed that in respect of a charge
Under Section 409 of Indian Penal
Code, the official capacity is relevant
70 only for entrustment, and not necessarily
in respect of misappropriation or
conversion which may be the act
complained of. It was held by this Court
that the correct position of law was laid
75 down in the case of Hori Ram Singh,
which is as under: I would observe at
the outset that the question is
substantially one of fact, to be
determined with reference to the act
80 complained of and the attendant
circumstances; it seems neither useful
nor desirable to paraphrase the
language of the section in attempting to
lay down hard and fast tests.
85 Bose, J., further held
in Shreekantiah case referred to supra
that there are cases and cases and each
must be decided on its own facts. It was
held as under:
90 Now it is obvious that if Section 197 of
the Code of Criminal Procedure is
72
 construed too narrowly it can never be
applied, for of course, it is no part of an
official's duty to commit an offence and
never can be. But it is not the duty we
5 have to examine so much as the act,
because an official act can be performed
in the discharge of official duty as well
as in dereliction of it. (Emphasis laid by
this Court)
10 While considering the facts of the case,
Bose J. observed that the offence in
question, could not have been
committed any other way, and held as
under: ...If it was innocent, it was an
15 official act; if dishonest, it was the
dishonest doing of an official act, but in
either event the act was official because
the second accused could not dispose of
the goods save by the doing of an
20 official act, namely officially permitting
their disposal; and that he did. He
actually permitted their release and
purported to do it in an official capacity,
and apart from the fact that he did not
25 pretend to act privately; there was no
other way in which he could have done
it. Therefore, whatever the intention or
motive behind the act may have been,
the physical part of it remained
30 unaltered, so if it was official in the one
case it was equally official in the order,
and the only difference would lie in the
intention with which it was done: in the
one event, it would be done in the
35 discharge of an official duty and in the
other, in the purported discharge of it.
(Emphasis laid by this Court)
Mr. Gopal Subramanium, has further
rightly placed reliance upon the
40 judgment of a three judge bench of this
Court in the case of Amrik
Singh v. State of PepsuAIR 1955 SC
309 to buttress the contention that the
issue of requirement of prior sanction
45 Under Section 197 of Code of Criminal
Procedure can be raised at any stage of
the proceedings, and not just at stage of
framing of charges. The decision in the
case of Hori Ram Singh (supra) was
50 also quoted with approval, especially the
categorisation of situations in three
scenarios, as under:
a) Decision which held that sanction
was necessary when the act complained
55 of attached to the official character of
the person doing it;
b) Judgments which held that sanction
was necessary in all cases in which the
official character of the person gave him
60 an opportunity for the commission of
the crime; and
c) Those which held it was necessary
when the offence was committed while
the accused was actually engaged in the
65 performance of official duties.
It was further held in the Amrik
Singh case that:
The result of the authorities may thus be
summed up: it is not every offence
70 committed by a public servant that
requires sanction for prosecution Under
Section 197 of the Code of Criminal
Procedure; nor even every act done by
him while he is actually engaged in the
75 performance of his official duties; but if
the act complained of is directly
concerned with his official duties so
that, if questioned, it could be claimed to
have been done by virtue of the office,
80 then sanction would be necessary; and
that would be so, irrespective of whether
it was, in fact, a proper discharge of his
duties, because that would really be a
matter of defence on the merits, which
85 would have to be invested at the trial
and could not arise at the stage of grant
73
 of sanction, which must precede the
institution of the prosecution.
(Emphasis laid by this Court)
The position of law, as laid down in the
5 case of Hori Ram Singh was also
approved by the Privy Council in the
case ofH.H.B. Gill v. The King AIR
1948 PC 128, wherein it was observed
as under: A public servant can only be
10 said to act or purport to act in the
discharge of his official duty, if his act is
such as to lie within the scope of his
official duty.
In the case of Satwant Singh v. State of
15 Punjab AIR 1960 SC 266, a constitution
bench of this Court while examining the
scope of Section 197 of Code of
Criminal Procedure, observed as
follows:
20 It appears to us to be clear that some
offences cannot by their very nature be
regarded as having been committed by
public servants while acting or
purporting to act in the discharge of
25 their official duty. For instance,
acceptance of a bribe, an offence
punishable under Section161 of Indian
Penal Code, is one of them and the
offence of cheating or abetment thereof
30 is another... where a public servant
commits the offence of cheating or abets
another so to cheat, the offence
committed by him is not one while he is
acting or purporting to act in the
35 discharge of his official duty, as such
offences have no necessary connection
between them and the performance of
the duties of a public servant, the
official status furnishing only the
40 occasion or opportunity for the
commission of the offences.........
the Act of cheating or abetment thereof
has no reasonable connection with the
discharge of official duty. The act must
45 bear such relation to the duty that the
public servant could lay a reasonable but
not a pretended or fanciful claim, that he
did it in the course of the performance
of his duty.
50 Respondent placed strong reliance on
the decision of this Court in the case
of Prakash Singh Badal v. Union of
India (2007) 1 SCC 1 to buttress his
contention that no sanction was required
55 to be taken in the instant case as the
Appellants have entered into a criminal
conspiracy, therefore, it cannot be said
to be a part of their official duty as the
public servants. The act of the
60 Appellants of transferring the plot in
question in favour of the aforesaid
society, allotted in favour of ICMR for
the purpose of construction of the flats
and allotting the same in favour of the
65 employees of ICPO-ICMR society
without obtaining the order from either
CEO or Chairman of the NOIDA with a
motive to make wrongful gain for
themselves after entering into a
70 conspiracy cannot be said to be an act
that has been carried out in discharge of
their official duty. The learned
Additional Solicitor General placed
reliance on the following paragraphs of
75 the Prakash Singh Badal case (supra):
49. Great emphasis has been led on
certain decisions of this Court to show
that even in relation to offences
punishable Under
80 Section 467 and 468 sanction is
necessary. The foundation of the
position has reference to some offences
in Rakesh Kumar Mishra's case. That
decision has no relevance because
85 ultimately this Court has held that the
absence of search warrant was
74
 intricately with the making of search
and the allegations about alleged
offences had their matrix on the absence
of search warrant and other
5 circumstances had a determinative role
in the issue.
50. The offence of cheating Under
Section 420 or for that matter offences
relatable to
10 Sections 467, 468, 471 and 120B can by
no stretch of imagination by their very
nature be regarded as having been
committed by any public servant while
acting or purporting to act in discharge
15 of official duty. In such cases, official
status only provides an opportunity for
commission of the offence.
Mr. P.P. Khurana and Mr. Gopal
Subramaniam, the learned senior
20 Counsel appearing on behalf of some of
the Appellants, on the other hand,
contend that the decision in the Prakash
Singh Badal case needs to be
appreciated in light of the facts of that
25 case. Thus, while stating that the
offences Under
Sections 420, 467, 468, 471 and 120B of
Indian Penal Code can by no stretch of
imagination and by their very nature be
30 regarded as having been committed by
any public servant while acting or
purporting to act in discharge of his
official duty, this Court did not mean
that merely because an official was
35 charged with an offence under these
sections, no sanction was required to be
taken. The Learned Counsel placed
reliance on the following paragraph of
the judgment to emphasise the same:
40 51. In Baijnath v. State of M.P. (1966
(1) SCR 210) the position was
succinctly stated as follows:
...it is the quality of the Act that is
important and if it falls within the scope
45 and range of his official duty the
protection contemplated by
Section 197 of the Code of Criminal
Procedure will be attracted.
The learned senior Counsel also placed
50 reliance on the three judge bench
decision of this Court rendered in the
case of Shreekantiah Ramayya
Munipalli, referred to supra, wherein it
was held as under:
55 18...If Section 197 of the Code of
Criminal Procedure is construed too
narrowly it can never be applied, for of
course it is no part of an official's duty
to commit an offence and never can be.
60 But it is not the duty we have to examine
so much as the act because an official
act can be performed in the discharge of
official duty as well as in dereliction of
it....
65 19. Now an offence seldom consists of a
single act. It is usually composed of
several elements and as a rule a whole
series of acts must be proved before it
can be established.... Now it is evident
70 that the entrustment and/or domino here
were in an official capacity and it is
equally evident that there could in this
case be no disposal, lawful or otherwise,
save by an act done or purporting to be
75 done in an official capacity....
From a perusal of the case law referred
to supra, it becomes clear that for the
purpose of obtaining previous sanction
from the appropriate government Under
80 Section 197 of Code of Criminal
Procedure, it is imperative that the
alleged offence is committed in
discharge of official duty by the
accused. It is also important for the
85 Court to examine the allegations
75
 contained in the final report against the discharge of their official duty,
Appellants, to decide whether previous therefore, it was essential for the learned
sanction is required to be obtained by Special Judge to correctly decide as to
the Respondent from the appropriate 15 whether the previous sanction from the
5 government before taking cognizance of Central Government Under
the alleged offence by the learned Section 197 of Code of Criminal
Special Judge against the accused. In the Procedure was required to be taken by
instant case, since the allegations made the Respondent, before taking
against the Appellants in the final report 20 cognizance and passing an order issuing
10 filed by the Respondent that the alleged summons to the Appellants for their
offences were committed by them in presence.

76
 R.S. Mishra vs. State of Orissa and Ors.
AIR 2011 SC 1103
Objectives:
1. Framing of Charges
2. Discharge of Accused u/s 227
3. Role of the Judge in Framing Charge
4. Adverse Remarks by Superior Courts on members of lower judiciary in their
judgments.
JUDGMENT
H.L. Gokhale, J.
The Appellant in this appeal is a retired
Additional Sessions Judge of the State of
Orissa. In this appeal by Special Leave, he
5 seeks to challenge the judgment and order
dated 20.10.2002, rendered by a learned
Judge of the Orissa High Court in suo-
motu Criminal Revision No. 367 of 1997,
arising out of Session Trial Case No.
10 187/55 of 1995, to the extent the learned
Judge has made certain observations
against the Appellant who had decided that
session case. These remarks were made on
account of the Appellant not framing the
15 charge under Section 302 of the Indian
Penal Code (IPC) against the accused in
that case, when the material on record
warranted framing of that charge.
20 The facts leading to this appeal are as
follows:
The case of the prosecution in that session
case was as follows. There was a land
25 dispute between one Megha Tirkey (the
accused) and one Samara Tirkey, who was
alleged to have been murdered by the
accused. Jayaram Tirkey is the younger
brother of accused. On 25.06.1995, at
30 about 11:00 a.m., Samara Tirkey (the
deceased) is said to have abused Smt.
Mangi the wife of Jayaram Tirkey (PW-1)
on account of the alleged encroachment of
Samara's land by the uncle of Jayaram, one
35 Shri Daharu Kujur. On the next day, i.e. on
26.6.1995, Jayaram Tirkey alongwith his
brother Megha Tirkey, the accused went to
the house of Samara Tirkey, the deceased.
Initially, Samara Tirkey was not available
40 and Jayaram and Megha Tirkey enquired
about his whereabouts with his wife Hauri
(PW-3). In the meanwhile, Samara Tirkey
reached over there. Jayaram Tirkey asked
Samara as to why he had scolded
45 Jayaram's wife in his absence. Samara
Tirkey is said to have raised his hand
towards Jayaram when accused Megha
Tirkey dealt a lathi blow on the head of
Samara Tirkey whereby he fell down.
50 Thereafter, the accused Megha Tirkey
gave two more lathi blows on his chest.
When Hauri caught hold of the accused, he
gave a lathi blow to her also and she
received a lacerated wound on her
55 forehead. Samara Tirkey was taken to the
Raurkela Govt. Hospital, where he died on
27.6.1995 at about 2:00 p.m.
Megha Tirkey was charged under Section
60 302 and 323 IPC. The matter reached
before the Appellant on 21.03.1996 when
he passed the following order:
Order No. 8 dt. 21.03.1996:
65 The accused is produced in custody by the
escort party. Learned Associate Lawyer
who represents the State is present.
Learned Defence counsel is also present.
70 Learned Associate Lawyer opens the
prosecution case by describing the charges
brought against the accused and stating by
what evidence he proposes to prove the
guilt of the accused. The learned Defence
75 counsel submits that there is complete
absence of evidence to frame charge
Under Section 302 IPC and that the
77
 available evidence may bring at-best an
offence Under Section 304 IPC.
After hearing submissions of both sides in
5 this behalf and on consideration of the
materials available in the case diary, I find
there is no sufficient material to frame
charge Under Section 302 IPC but there
are sufficient materials against the
10 accused for presuming that he has
committed the offence Under Section 304
IPC and 323 IPC.
Hence, charge Under Section 304 IPC and
15 Under Section 323 IPC are framed against
the accused. The charges being read-over
and explained, the accused pleads not
guilty and claimed to be tried.
20 The Defence does not admit the
genuineness of the documents filed by the
prosecution.
Put up on 25.4.96 for fixing a date of
25 hearing of the Sessions trial.
Sd/-
Addl. Sessions Judge,
Rourkela,
30 21.3.96
Subsequently, the Appellant was
transferred from Rourkela, and the matter
proceeded before one Shri S.K. Mishra,
35 the subsequent Additional Sessions Judge
at Rourkela. It so happened that during the
trial, some of the prosecution witnesses,
viz. PW Nos. 2, 4, 5, 6, 7 were declared
hostile by the prosecution since they did
40 not support the case. The Judge, however,
found the evidence of Hauri (PW No. 3)
wife of Samara Tirkey, the deceased, as
acceptable and reliable. Her testimony was
supported by the medical evidence. The
45 Doctor found a lacerated injury on her 95 charges under Sections 304/323 of the
forehead. She stated that the accused had
given a lathi blow on the head of the
deceased and then on his chest, in her
presence. She also stated about the lathi
50 blow given to her. The post-mortem 100 only states that material available in the
examination revealed that amongst other
injuries, the left side mandible of the
deceased was fractured and there was sub-
dural haematoma over the left parietal
55 region of the scalp. The other vital organs
like lungs, liver, kidney were all
congested. Due to these injuries, the
deceased went into coma and then died.
The learned Judge held that the
60 prosecution had established the charges
beyond reasonable doubt and found the
accused guilty of offences under Section
304 and 323 of IPC, and convicted him
accordingly. He sentenced him to undergo
65 Rigorous Imprisonment for five years
under Section 304(1) of IPC and for one
month for offence under Section 323 IPC,
with both the punishments running
concurrently.
70
Note by the Inspecting Judge
It so transpired that later the inspection of
the Court of Additional & District
75 Sessions Judge, Rourkela was carried out
by Hon'ble Mr. Justice P.K. Mishra, then a
Senior Judge of the High Court of Orissa.
At that stage, while going through the file
of S.T. No. 187/55 of 1995, Mr. Justice
80 P.K. Mishra came across the above
referred Order No. 8 dated 21.3.1996
passed by the Appellant herein. Thereupon
Mr. Justice P.K. Mishra made the
following note on that file:
85
In this case, the only accused Megha
Tirkey was charge- sheeted under Sections
302/323 IPC for clubbing the victim
(Samra Tirkey) to death on 26.06.1995 at
90 3.30 P.M.
The additional Sessions Judge, Rourkela
while discharging the accused from the
offence under Section - 302 framed
Indian Penal Code without recording any
reason for discharging the accused from
the offence under Section 302 IPC. The
order of the Additional Sessions Judge
78
 case diary is insufficient to frame a charge
under Section 302 IPC.
It is the settled principle of law that while
5 framing charge the Sessions Judge under
Section 228 Code of Criminal Procedure
need not assign reasons, but he is bound to
record reasons while recording a discharge
under Section 227 Cr.P.C.
10 60 under Section 304, IPC by declining to
In the present case, the widow of the
deceased (P.W.3) has testified that the
accused dealt a forceful lathi blow on the
head of the deceased and two more blows
15 on his chest. The post-mortem
examination reveals that ramus of the left
side mandible of the deceased was
fractured on the chin besides left parietal
region of the scalp.
20 70 Criminal Revision, the accused had
Relying on the ocular testimony of widow
of the deceased and the post-mortem
examination report that lends support to
her evidence, the Additional Sessions
25 Judge recorded a conviction under Section
304(1)/323 of the Indian Penal Code and
sentenced the accused to undergo R.I. for
five years on the first count and one month
R.I. on the second count with a direction
30 for concurrent running of sentences.
It is no body's case that the offence was
committed on grave and sudden
provocation. The Addl. Sessions Judge
35 should not have nipped the case Under
Section 302 IPC at the bud by discharging
the accused thereof by a non speaking
order. This is a fit case for suo-motu
revision Under Section 401 Cr.P.C.
40 90 concerned Presiding Officer had no
Suo-motu Criminal Revision
In view of the note of Hon'ble Justice Mr.
P.K. Mishra, the High Court took up a suo-
45 motu Criminal Revision against the order
dated 21.3.1996. On this factual aspect, the
learned Single Judge held as follows: -
If the materials in the case diary reveal two
50 distinct offences of the same nature then it
is appropriate to frame charge for more
grievous offence or to frame charge for
both the offences distinctly and separately.
That being the settled position of law and
55 the prosecution case stands in the manner
indicated above, therefore, there is no
hesitation to record a finding that learned
Additional Sessions Judge, Rourkela went
wrong in framing charge for the offence
frame charge under Section 302 IPC for no
reason explained in the order passed under
Section 228 Cr.P.C.
65 Impugned observation by the Single
Judge
The learned Single Judge, however, noted
that by the time he was deciding the
already served the sentence of five years of
Rigorous Imprisonment. Therefore, he did
not deem it to be a fit case for ordering a
retrial under Section 300(2) of Code of
75 Criminal procedure, 1973 (`Cr.P.C.' for
short). He disposed of the suo-motu
Criminal Revision accordingly by his
order dated 28.10.2002.
80 The learned Single Judge, however, made
certain observations in para 5 of his order
which are material for our purpose. This
para reads as follows:
85 5. A Judicial Officer before being posted
as Addl. Sessions Judge gets the
experience of conducting sessions cases as
Assistant Sessions Judge. Therefore, in
this case, it cannot be said that the
requisite experience to deal with a matter
relating to consideration of charge and to
pass appropriate legal order under Sections
227 and 228 Cr. P.C correctly. When the
95 accused was not charged for the offence
under Section 302, IPC and instead he was
charged for the offence Under Section 304
IPC, it was incumbent on the trial court to
explain the circumstances and to reflect
100 the same in the order as to what was the
79
 reason or lack of evidence not to frame
charge for the offence under Section 302
IPC. This Court finds no reasonable
excuse for the concerned Presiding Officer
5 to commit a blunder in the above indicated
manner... If the said Judicial officer has
not yet been confirmed in the cadre of
O.S.J.S (S.B.), then before confirming him
in that cadre his performance be
10 thoroughly verified and in the event of
finding glaring deficiency in his
performance, as in this case, then he may
be kept on probation for a further period as
would be deemed just and proper by the
15 High court. If he has already been
confirmed in that cadre, then his
performance be thoroughly verified before
giving him promotion to the higher scale.
Thus, in first part of this para, the learned
20 Judge has held that the Appellant had
committed a blunder in not framing the
charge under Section 302 IPC. In the latter
part of the para, he has made certain
observations about the manner in which
25 the Appellant had passed the order dated
21.3.1996, and also some correctional
suggestions about the Appellant.
Subsequent to these observations in this
30 order dated 28.10.2002, the High Court
Administration examined the record of the
Appellant and denied him the Selection
grade. The Appellant's representation
dated 24.09.2003 in that behalf was also
35 rejected by the High Court Administration
as per the communication dated
20.11.2003 to the Appellant from the
Special Officer (Administration). Being
aggrieved therewith the Appellant took
40 Voluntary Retirement on 30.11.2003, and
subsequently filed the present Appeal by
special leave on 13.02.2004 to challenge
the above order dated 28.10.2002 and the
observations made therein.
45 95 expunged those remarks from the order of
Submissions on behalf of the Appellant
Mr. Uday Gupta, learned Counsel for the
Appellant, submitted that the order passed
50 by the Appellant on 21.3.1996 was a
judicial order. It is possible to say that this
order was an erroneous one, but merely for
that reason, it was not proper for the
inspecting judge to direct that a suo-motu
55 Revision be filed against the same. In any
case, it was wrong on the part of the
learned Single Judge who heard the suo-
motu Revision, to make the observations
which he has made in the above quoted
60 paragraph 5 of his order which has
affected Appellant's career.
The learned Counsel for the Appellant
then relied upon the observations in para
65 13 of the judgment of this Court in V.K.
Jain v. High Court of Delhi through
Registrar General and Ors. 2008 (17) SCC
538 and the principles of law laid down in
para 58 thereof. In that matter, the
70 Appellant while working as a Judicial
Officer in the Higher Judicial Services of
Delhi, vide his order dated 4.3.2002,
permitted an accused in a criminal case to
go abroad subject to the conditions that the
75 accused would file Fixed Deposit Receipts
(FDR) of Rs. one lakh and also surrender
passports of his mother and wife. When
the said order dated 4.3.2002, was
challenged, the High Court found those
80 conditions unacceptable. In its order, the
High Court made certain observations
against the Petitioner and in paragraph 15
held that:
85 5 ...This is nothing but a medieval way of
administering justice when family
members used to be kept as hostages in
lieu of either release of their detained kith
and kin or procure the surrender of the
90 wanted man.
Being aggrieved by that order the Judicial
Officer carried the matter to the Supreme
Court, where this Court cautioned against
making such strong observations, it
Delhi High Court. In sub-paragraph IX of
para 58, this Court laid down the following
principle:
80
 IX. The superior courts should always
keep in mind that disparaging and
derogatory remarks against the judicial
officer would cause incalculable harm of a
5 permanent character having the
potentiality of spoiling the judicial career
of the officer concerned. Even if those
remarks are expunged, it would not
completely restitute and restore the harmed
10 Judge from the loss of dignity and honour
suffered by him.
Mr. Gupta emphasized these observations
and submitted that the High Court should
not have made the above observations in
15 para 5 of the impugned order which have
caused an incalculable harm to the career
of the Appellant.
20 Consideration
We have noted the submissions of both the
counsel. We are concerned with the role of
the Judge at the stage of framing of a
25 charge. The provision concerning the
framing of a charge is to be found in
Section 228 of Code of Criminal
Procedure This Section is however,
connected with the previous section, i.e.
30 Section 227 which is concerning
`Discharge'. These two sections read as
follows:
Section 227 - Discharge - If, upon
35 consideration of the record of the case and
the documents submitted therewith, and
after hearing the submissions of the
accused and the prosecution in this behalf,
the Judge considers that there is not
40 sufficient ground for proceeding against
the accused, he shall discharge the accused
and record his reasons for so doing.
Section 228 - Framing of charge (1) If,
45 after such consideration and hearing as
aforesaid, the Judge is of opinion that there
is ground for presuming that the accused
has committed an offence which-
50 (a) is not exclusively triable by the Court
of Session, he may, frame a charge against
the accused and, by order, transfer the case
for trial to the Chief Judicial
Magistrate3[or any other Judicial
55 Magistrate of the first class and direct the
accused to appear before the Chief Judicial
Magistrate, or, as the case may be, the
Judicial Magistrate of the first class, on
such date as he deems fit, and thereupon
60 such Magistrate] shall try the offence in
accordance with the procedure for the trial
of warrant-cases instituted on a police
report;
65 (b) is exclusively triable by the Court, he
shall frame in writing a charge against the
accused.
(2) Where the Judge frames any charge
70 under Clause (b) of Sub-section (1), the
charge shall be read and explained to the
accused and the accused shall be asked
whether he pleads guilty of the offence
charged or claims to be tried.
75
As seen from Section 227 above, while
discharging an accused, the Judge
concerned has to consider the record of the
case and the documents placed therewith,
80 and if he is so convinced after hearing both
the parties that there is no sufficient
ground to proceed against the accused, he
shall discharge the accused, but he has to
record his reasons for doing the same.
85 Section 228 which deals with framing of
the charge, begins with the words "If after
such consideration". Thus, these words in
Section 228 refer to the `consideration'
under Section 227 which has to be after
90 taking into account the record of the case
and the documents submitted therewith.
These words provide an inter-connection
between Sections 227 and 228. That being
so, while Section 227 provides for
95 recording the reasons for discharging an
accused, although it is not so specifically
stated in Section 228, it can certainly be
said that when the charge under a
particular section is dropped or diluted,
81
 (although the accused is not discharged),
some minimum reasons in nutshell are
expected to be recorded disclosing the
consideration of the material on record.
5 This is because the charge is to be framed
`after such consideration' and therefore,
that consideration must be reflected in the
order.
10 19. It is also to be noted that a discharge
order is passed on an application by the
accused on which the accused and the
prosecution are heard. At the stage of
discharging an accused or framing of the
15 charge, the victim does not participate in
the proceeding. While framing the charge,
the rights of the victim are also to be taken
care of as also that of the accused. That
responsibility lies on the shoulders of the
20 Judge. Therefore, on the analogy of a
discharge order, the Judge must give his
reasons atleast in a nutshell, if he is
dropping or diluting any charge,
particularly a serious one as in the present
25 case. It is also necessary for the reason that
the order should inform the prosecution as
to what went wrong with the investigation.
Besides, if the matter is carried to the
higher Court, it will be able to know as to
30 why a charge was dropped or diluted.
The observations of this Court in the case
of State of Bihar v. Ramesh Singh AIR
1977 SC 2018 : 1977 (4) SCC 39 are very
35 apt in this behalf. A bench of two Judges 85 Thus it cannot be disputed that in this
of this Court has observed in that matter
that at the initial stage of the framing of a
charge, if there is a strong
suspicion/evidence which leads the Court
40 to think that there is ground for presuming 90 charge, the order ought to be clear and
that the accused has committed an offence,
then it is not open to the Court to say that
there is no sufficient ground for
proceeding against the accused.
45 95 consideration of the material available in
In Nirmaljit Singh Hoon v. State of West
Bengal 1973 (3) SCC 753 - Shelat, J.
delivering the judgment on behalf of the
majority of the Court referred at page 79
50 of the report to the earlier decisions of this 100 against the statement of the injured eye
Court in Chandra Deo Singh v. Prokash
Chandra Bose - where this Court was held
to have laid down with reference to the
similar provisions contained in Sections
55 202 and 203 of the Code of Criminal
Procedure, 1898 "that the test was whether
there was sufficient ground for proceeding
and not whether there was sufficient
ground for conviction, and observed that
60 where there was prima facie evidence,
even though the person charged of an
offence in the complaint might have a
defence, the matter had to be left to be
decided by the appropriate forum at the
65 appropriate stage and issue of a process
could not be refused". Illustratively,
Shelat, J., further added "Unless, therefore,
the Magistrate finds that the evidence led
before him is self- contradictory, or
70 intrinsically untrustworthy, process cannot
be refused if that evidence makes out a
prima facie case. (Emphasis supplied)
Further, as observed later in paragraph 6 of
75 a subsequent judgment of this Court in
Niranjan Singh v. Jitendra Bhimraj 1990
(4) SCC 76, at the stage of the framing of
the charge, the Judge is expected to sift the
evidence for the limited purpose to decide
80 if the facts emerging from the record and
documents constitute the offence with
which the accused is charged. This must
be reflected in the order of the judge.
process the minimum that is expected from
the Judge is to look into the material
placed before him and if he is of the view
that no case was made out for framing of a
self-explanatory with respect to the
material placed before him. In the present
case, all that the Appellant stated in his
order dated 21.03.1996 was, that on
the case diary, he had found that there was
no sufficient material to frame the charge
under Section 302 of IPC. This is nothing
but a bald statement and was clearly
82
 witness, and supporting medical papers on
record. The Appellant has not even
referred to the same. He has also not stated
in his order as to why he was of the
5 opinion that the material available in the
case diary was insufficient. Such a bald
order raises a serious doubt about the bona
fides of the decision rendered by the Judge
concerned.
10 therefore, be said that the Appellant did
In the instant case, a young person had
been killed. It was not a case of grave and
sudden provocation. The material on
record showed that there was an injured
15 eye witness and there was the supporting
medical report. The material on record
could not be said to be self-contradictory
or intrinsically unreliable. Thus, there was
a prima facie case to proceed to frame the
20 charge under Section 302 IPC.
The impugned order of the learned Single
Judge deciding Revision notes that the
45
Appellant had been functioning in the rank
25 of the District Judge from August 1991
onwards, i.e. for nearly 5 years prior to his
order dated 21.3.1996. The impugned
order further states in para 5, that a
Judicial Officer, before being posted as an
30 Additional Session Judge, gets an
experience of taking the sessions cases as
Assistant Session Judge. It cannot,
not have requisite experience to pass a
35 correct legal order under Section 228 of
Cr.P.C.
For the reasons stated above, we find no
reason to interfere in the impugned order
40 making certain observations and
suggestions which were necessary in the
facts and circumstances of the case. The
appeal is therefore, dismissed, though
there will be no order as to the costs.
83
 Birichh Bhuian and Ors. vs. State of Bihar AIR 1963 SC 1120
Objectives:
1. Interpretation of S. 537 of the Code
2. Issue of Joint Trial and Misjoinder of Charges
3. Meaning of term ‘Charge’
JUDGMENT
K. Subba Rao, J.
The facts are not in dispute and may be
briefly stated. On September 16, 1956,
at about 3-55 P.M. the Sub Inspector of
Police, attached to Chainpur outpost,
5 found 10 to 15 persons gambling by the
side of the road. He arrested five out of
them and the rest had escaped. The Sub
Inspector took the arrested persons to
the out-post and as one of the arrested
10 persons Jamal adopted a violent attitude,
he ordered him to be handcuffed
whereupon he began to abuse the Sub
Inspector. It happened that a large
number of Bhuians, male and female,
15 were dancing close to the outpost. Some
of them hearing the noise rushed with
lathies to the out-post, assaulted the
Sub-Inspector and two constables and
looted the out-post. Three charge-sheets
20 were filed in the court of the Sub-
Divisional Officer in respect of the said
incidents, first against the appellants
Nos. 1 to 4 and others under Sections
147, 452 and 379 of the Indian Penal
25 Code alleging that they raised the
outpost, looted some properties and
assaulted the informant and others; the
second against the appellants 5 and 4
others under s. 224 of the Indian Penal
30 Code and the third against appellant No.
5 and 4 others under s. 11 of the Bengal
Public Gambling Act. The said Sub
Divisional Officer took cognizance of
the said cases and transferred them to
35 the court of the Magistrate 1st Class,
Daltonganj. On December 29, 1956, on
a petition filed by the Prosecuting
Inspector the said Magistrate held a joint
trial. On July 22, 1957, he delivered a
40 single judgment convicting appellants
Nos. 1 to 4 under s. 147 of the India
Penal Code and also under Sections 452
and 380/34 of the Indian Penal Code and
sentencing them to undergo rigorous
45 imprisonment for one year for the
former offence. No sentence was
imposed for the latter offences. The
appellant No. 5, along with 4 others was
convicted under s. 224 of the Indian
50 Penal Code and sentenced to two years'
rigorous imprisonment and was also
convicted under s. 11 of the Bengal
Public Gambling Act, and Sections 353
and 380/34 of the Indian Penal Code,
55 but no separate sentence was awarded
for the said offences, The appellant and
others preferred an appeal against the
said concessions and sentences to the
court of the Additional Judicial
60 Commissioner of Ranchi and he by his
judgment dated July 10, 1958, convicted
the appellants Nos. 1 to 4 under s. 147
of the Indian Penal Code and acquitted
them in respect of other charges. The
65 conviction of the appellant No. 5 under
s. 224, Indian Penal Code, was
maintained but the sentence was reduced
to one year's rigorous imprisonment and
a sentence of rigorous imprisonment for
70 one month was imposed on appellants
Nos. 4 and 5 and others under s. 11 of
the Bengal Public Gambling Act. The
learned Judicial Commissioner held that
the offence under s. 11 of the Bengal
84
 Public Gambling Act was not committed
in the course of the same transaction as
the other offences were committed at the
police-post and therefore there was a
5 misjoinder of charges. Nonetheless he
held that the said defect was curable as
no prejudice had been caused to the
appellants. The appellants preferred a
revision petition to the High Court of
10 Judicature at Patna and the said High
Court dismissed the same on the ground
that by reason of s. 537(b) of the
Criminal Procedure Code the conviction
could not be set aside as the said
15 misjoinder of charges did not occasion a
failure of justice. The present appeal
was filed against the said order on a
certificate issued by the High Court.
The learned counsel for the appellants
20 contended that s. 537(b) of the Criminal
Procedure Code could only save
irregularities in the matter of framing of
charges but could not cure a joint trial of
charges against one person or several
25 persons, that was not sanctioned by the
Code. Elaborating his argument the
learned counsel contended that the
expression 'mis-joinder of charges' in s.
537(b) of the Code must be confined
30 only to mis-joinder of accusations -
according to him charge in the Code
means only an accusation - and
therefore a joint trial of offences and
persons outside the scope of Sections
35 233 to 239, of the Criminal Procedure
Code, would not be misjoinder of
charges within the meaning of said
expression.
As the question raised turns upon the
40 construction of the provisions of s. 537
of the Criminal Procedure Code, it
would be convenient to read the material
part of it at this stage :-
Subject to the provisions hereinbefore
45 contained, no finding, sentence or order
passed by a Court of competent jurisdiction
shall be reversed or altered under Chapter
XXVII or on appeal or revision on
account.............
50 (a) of any error, omission or irregularity in
the complaint, summons, warrant,
proclamation, order, judgment or other
proceedings before or during trial or in any
inquiry or other proceedings under this
55 Code, or
(b) of any error, omission or irregularity in
the charge, including any misjoinder of
charges, or
(c) XX XX XX X
60 (d) of any misdirection in any charge to a
jury unless such error, omission,
irregularity, or mis-direction has in fact
occasioned a failure of justice
EXPLANATION :- In determining whether
65 any error, omission or irregularity in any
proceeding under this Code has occasioned
failure of justice, the Court shall have
regard to the fact whether the objection
could and should have been raised at an
70 earlier stage in the proceedings.
Clause (b) was inserted by Act XXVI of
1955. The word 'charge' which occurred
after 'warrant' in clause (a) was omitted
and the new clause which specifically
75 relates to charge was added. Further the
expression 'mis-joinder of charges' was
included in the general terms 'error,
omission or irregularity in the charge'.
The object of the section is manifest
80 from its provisions. As the object of all
rules of procedure is to ensure a fair trial
so that justice may be done, the section
in terms says that any violation of the
provisions to the extent narrated therein
85
 not resulting in a failure of justice does
not render a trial void. The scope of
clause (b) could be best understood, if a
brief historical background necessitating
5 the amendment was noticed. The
Judicial Committee in Subrahmania
Ayyar v. King Emperor I.L.R. (1902)
Mad. 61 L.R. 28 IndAp 257 held that the
disregard of an express provision of law
10 as to the mode of trial was not a mere
irregularity such as could be remedied
by s. 537 of the Criminal Procedure
Code. There the trial was held in
contravention of the provisions of
15 Sections 233 and 234 of the Code of
Criminal Procedure which provide that
every separate offence shall be charged
and tried separately except that the three
offences of the same kind may be tried
20 together in one charge if committed
within a period of one year. It was held
that the mis-joinder of charges was not
an irregularity but an illegality and
therefore the trial having been
25 conducted in a manner prohibited by
law was held to the altogether illegal.
The Judicial Committee in Abdul
Rehman v. The King Emperor I.L.R.
(1927) Rang 53; L.R. 54 IndAp 96.)
30 considered that a violation of the
provisions of s. 360 of the Code which
provides that the depositions should be
read over to the witnesses before they
sign, was only an irregularity curable
35 under s. 537 of the Code. Adverting to
Subrahmania Ayyar's case it pointed out
that the procedure adopted in that case
was one which the Code positively
prohibited and it was possible that in
40 might have worked actual injustice to
the accused. The question again came
before the Privy Council in Babu Lal
Choukhani v. Emperor I.L.R. (1938)
Cal. 295. One of the points there was
45 whether the trial was held in
infringement of s. 239(d) of the
Criminal Procedure Code. The Board
held that it was not. Then the question
was posed that if there was a
50 contravention of the said section,
whether the case would be governed by
Subrahmania Ayyar's case or Abdul
Rehman's case. The Board did not think
it was necessary to discuss the precise
55 scope of what was decided in
Subrahmania Ayyar's case because in
their understanding of s. 239(d) of the
Code that question did not arise in that
case. The point was again mooted by the
60 Board in Pulukuri Kotayya v. King
Emperor I.L.R. 1948 Mad. 1. In that
case there had been a breach of the
proviso to s. 162 of the Code. It was
held that in the circumstances of the
65 case the said breach did not prejudice
the accused and therefore the trial was
saved by s. 537 thereof. Sir Join
Beaumont speaking for the Board
observed at p. 12 "When a trial is
70 conducted in a manner different from
that prescribed by the Code, as in
Subrahmania Ayyar v. King Emperor
I.L.R. (1902) Mad. 1, the trial is bad,
and no question of curing an irregularity
75 arises, but if the trial is conducted
substantially in the manner prescribed
by the Code, but some irregularity
occurs in the course of such conduct, the
irregularity can be cured under s. 537,
80 and no the less so because the
irregularity involves, as must nearly
always be the case, a breach of one or
more of the very comprehensive
provisions of the Code. The distinction
85 drawn in many of the cases in India
between an illegality and an irregularity
is one of the degree rather than of kind".
It will be seen from the said
observations that the Judicial Committee
90 left to the courts to ascertain in each
case whether an infringement of a
provision of Code is an illegality or an
irregularity. There was a marked
cleavage of opinion in India whether the
86
 later decisions of the Privy Council
modified the rigor of the rule laid down
in Subrahmania Ayyar's case and a view
was expressed in several decisions that a
5 mere mis-joinder of charges did not
necessarily vitiate the trial unless there
was a failure of justice, while other
decisions took a contrary view. This
court in Janardan Reddy v. The State of
10 Hyderabad [1951]2SCR344 left open
the question for future decision. In this
state of law, the Parliament has
intervened to set at rest the conflict by
passing Act XXVI of 1955 making a
15 separate provision in respect of errors,
omissions or irregularities in a charge
and also enlarging the meaning of the
expression such errors etc. so as to
include a misjoinder of charges. After
20 the amendment there is no scope for
contending that mis-joinder of charges is
not saved by s. 537 of the Criminal
Procedure Code if it has not occasioned
a failure of justice.
25 70 says that the charge includes any head of
The next question is what is the meaning
of the word 'charges' in the expression
'mis-joinder of charges'. The word
'charge', the learned counsel of the
30 appellants contends means only an
accusation of a crime or an information
given by the Court of an allegation made
against the accused. Does the section
only save irregularities in the matter of
35 mis-joinder of such accusations ? Does
it only save the irregularities committed
in mixing up accessions in respect of
offences or persons the joinder whereof
has been permitted by the provisions of
40 the Criminal Procedure Code ? The mis-
joinder cured by the section, it is said, is
illustrated by the decision in Kadiri
Kunhahammad v. The State of Madras:
1960CriLJ1013 There in a case of
45 conspiracy of commit a breach of trust a
separate charge was framed in
contravention of the proviso to s. 222 of
the Criminal Procedure Code i.e. in
regard to an amount misappropriated
50 during the period exceeding one year.
This Court held that as acts of
misappropriation committed during the
curse of the same transaction could be
tried together in one trial, the
55 contravention of s. 222 was only an
irregularity, for that act of
misappropriation could have been split
up into two parts, each of them covering
a period less than one year and made
60 subject of a separate charge. In that view
it was held that s. 537 saved the trial, as
there was no failure of justice. There a
joint trial was permitted by the relevant
provisions of the Code, but the defect
65 was only in having one charge instead of
two charges. The question is whether the
expression should be given only the
limited meaning as contended above.
The word 'charge' is defined in s. 4(c). It
a charge where charge contained more
heads than one. This definition does not
throw any light, but it may be noted that
that is only an inclusive one. Chapter
75 XIX provides for the form of charges
and for joinder of charges. Section 221
to 232 give the particulars that a charge
shall contain and the manner of
rectifying defects if found therein.
80 Section 221 says that in every charge the
court shall state the offence with which
the accused is charged. Section 222
provides that the charge shall contain
such particulars as to the time and place
85 of the alleged offence and the person
against whom or the thing in respect of
which it was committed, as are
reasonably sufficient to give the accused
notice of the matter with which he is
90 charged. Section 233 repeats that a
charge shall also contain such
87
 particulars mentioned in Sections 221
and 222. The form of a charge
prescribed in Schedule 5 shows that it
contains an accusation that a person
5 committed a particular offence. It is,
therefore, clear that a charge is not an
accusation made or information given in
abstract but an accusation made against
a person in respect of an act committed
10 or omitted in violation of a penal law
forbidding or commanding it. In other
words it is an accusation made against a
person in respect of an offence alleged
to have been committed by him. If so,
15 section 234 to 239 deal with joinder of
such charges. Section 233 says that for
every distinct offence of which any
person is accused, there shall be a
separate charge and every such charge
20 shall be tried separately, except in cases
maintained in Sections 234, 235, 236
and 239. Sections 234 to 236 permit
joinder of charges and trial of different
offences against a single accused in the
25 circumstances mentioned in those
sections and s. 239 provides for the
joinder of charges and the trial of
several persons. The scheme of the said
sections also indicates that a charge is
30 not a mere abstraction but a concrete
accusation against a person in respect to
an offence and that their joinder is
permitted under certain circumstances
whether the joinder of charges is against
35 one person or different persons. If the
joinder of such charges is made in
contravention of the said provisions, it
will be misjoinder of charges. As we
have noted already, before sub-section
40 (b) was added to s. 537 of the Criminal
Procedure Code there was a conflict of
view on the question whether such a
misjoinder was only an irregularity
which could be cured under that section,
45 or an illegality which made it void. The
amendment steered clear of that conflict
and expressly included the misjoinder of
charges in the errors and irregularities
which could be cured thereunder. To
50 summarise : a charge is a precise
formulation of a specific accusation
made against person of an offence
alleged to have been committed by him.
Sections 234 to 239 permit the joinder
55 of such charges under specified
conditions for the purpose of a single
trial. Such a joinder may be of charges
in respect of different offences
committed by a single person or several
60 persons. If the joinder of charges was
contrary to the provisions of the Code it
would be a mis-joinder of charges.
Section 537 prohibits the revisional or
the appellate court from setting aside a
65 finding, sentence or order passed by a
court of competent jurisdiction on the
ground of such a misjoinder unless it has
occasioned a failure of justice. In this
case there was a clear misjoinder of
70 charges against several persons. But the
High Court held that there was no
failure of justice and the appellants held
their full say in the matter and they were
not prejudiced in any way. We,
75 therefore, hold that the High Court was
right in not setting aside the convictions
of the accused and the sentence passed
against them.
88
 Joginder Kumar vs. State of U.P.
(1994) 4 SCC 260
Objectives:
1. To understand the meaning of tem arrest
2. Guidelines for arrest
3. When power of arrest may be properly exercised
M Venkatachalliah, J.,
This is a petition under Article 32 of the
Constitution of India. The Petitioner is a
young man of 28 years of age who has
completed his L.L.B. and has enrolled
5 himself as an advocate. The Senior
Superintendent of police, Ghaziabad,
Respondent No. 4 called the Petitioner
in his office for making enquiries in
some case. The Petitioner on 7-1-1994
10 at about 10 O'clock appeared personally
along with his brothers Sri. Mangeran
Choudhary, Nahar Singh Yadav,
Harinder Singh Tewatia, Amar Singh
and Ors. before the Respondent No. 4.
15 Respondent No. 4 kept the Petitioner in
his custody. When the brother of the
Petitioner made enquiries about the
Petitioner, he was told that the Petitioner
will be set free in the evening after
20 making some enquiries in connection
with a case. On 7-1-1994 at about 12.55
p.m. the brother of the Petitioner being
apprehensive of the intentions of
Respondent No. 4, sent a telegram to the
25 Chief Minister of U.P. apprehending his
brother's implication in some criminal
case and also further apprehending the
Petitioner being shot dead in fake
encounter.
30 In spite of the frequent enquiries, the
whereabouts of the Petitioner could not
be located. On the evening of 7-1-1994,
it came to be known that Petitioner is
detained in illegal custody of 5th
35 Respondent SHO, P.S. Mussoria. On 8-
1-1994, it was informed that the 5th
Respondent was keeping the Petitioner
in detention to make further enquiries in
some case. So far as Petitioner has not
40 been. produced before the concerned
Magistrate. instead the 5th Respondent
directed the relative of the Petitioner to
approach the 4th Respondent S.S.P.
Ghaziabad for release of the Petitioner.
45 On 9-1-1994, in the evening when the
brother of Petitioner along with relatives
went to P.S. Mussorie to enquire about
the well-being of his brother, it was
found that the Petitioner had been taken
50 to some undisclosed destination. Under
these circumstances, the present petition
has been preferred for the release of
Joginder Kumar, the Petitioner, herein.
This Court on 11-1-1994 ordered notice
55 to State of U.P. as well as S.S.P.
Ghaziabad. The said Senior
Superintendent of Police along with
Petitioner appeared before this Court on
14-1-1994. According to him, the
60 Petitioner has been released. To
question as to why the Petitioner was
detained for a period of five days, he
would submit that the Petitioner was not
in detention at all. His help was taken
65 for detecting some cases relating to
abduction and the Petitioner was helpful
in co-operating with the police.
Therefore, there is no question of
detaining him. Though, as on today the
70 relief in habeas corpus petition cannot
89
 be granted yet this Court cannot put an
end to the writ petition on this score.
Where was the need to detain the
Petitioner for five days, if really the
5 Petitioner “was not in detention, why
was not this Court informed are some
questions which remain unanswered, If
really, there was a detention for five
days, for what reason was he detained?
10 These matters require to be enquired
into. Therefore, we direct the learned
District Judge. Ghaziabad to make a
detailed enquiry and submit his report
within four weeks from the date of
15 receipt of this order.
The horizon of human rights is
expending. At the same time, the Crime
rate is also increasing! of late, this Court
has been receiving complaints about
20 violation of human rights because of
indiscriminate arrests. How are we to
strike a balance between the two?
A realistic approach should be made in
this direction, The law of arrest is one of
25 balancing individual rights, liberties and
privileges, on the one hand, and
individual duties, obligations and
responsibilities on the other; of
weighing and balancing the rights,
30 liberties and privileges of the single
individual and those of individuals
collectively: of simply deciding what is
wanted and where to put the weight and
the emphasis; of deciding which comes
35 first-the criminal or society, the law
violator or the law abider; of meeting
the challenge which Mr. Justice Cardozo
so forth rightly met when he wrestled
with a similar task of balancing
40 individual rights against society's rights
and wisely held that the exclusion rule
was bad law, that society come first, and
that the criminal should not go free
because the constable blundered. In
45 People v. Defore 242 N Y. 13, 24: 150
N.E. 585, 589 (1926), Justice Cardozo
observed:
The question is whether protection for the
individual would not be gained at a
50 disproportionate loss of a protection for
society. On the one side is the social need that
crime shall be repressed, on the other, the
social need that law shall not be flouted by the
insolence of, office. There are dangers in any
55 choice. The rule of the Adams case (People v.
Adams 176 N.Y. 351: 68 N.E. 636
(1903) strikes a balance between opposing
interests. We must hold it to be the law until
those - organs of Government by which a
60 change of public policy is normally effected
shall give notice to the courts that change has
come to pass.
To the same effect is the statement by
Judge Learned Hand. In Re Fried 161 F.
65 2d 453, 465 (2d Cir. 1947):
The protection of the individual from
oppression and abuse by the police and other
enforcing officers is indeed a major interest in
a free society; but so is the effective
70 prosecution of Crime, an interest which at
times seems to be forgotten. Perfection is
impossible; like other human institutions
criminal proceedings must be a compromise.
9. The quality of a nation's civilisation
75 can. be largely measured by the methods
it uses in the enforcement of criminal
law.
This Court in Smt. Nandini Satpathy v.
P.L. DaniAIR 1978 SC 1025 at page
80 1032 quoting Lewis Mayers stated:
The paradox has been put
sharply by Lewis Mayers:
To strike the balance between the needs of law
enforcement on the one hand and the
85 protection of the citizen from oppression and
90
 injustice at the hands of the law-enforcement
machinery on the other is perennial a problem
of statecraft. The pendulum over the years has
swung to the right.
5 Again in paragraph 21 at page
1033 it was observed:
We have earlier spoken of the conflicting
claims requiring reconciliation. Speaking
pragmatically, there exists a rivalry between'
10 societal interest in effecting crime detection
and constitutional rights which accused
individuals possess. Emphasis may shift,
depending on circumstances, in balancing
these interests as has been happening in
15 America. Since Miranda (1966) 384 U.S. 436)
there has been retreat from stress on protection
of the accused and gravitation towards
society's interest in convicting law-brakers.
Currently, the trend in the Americal
20 jurisdiction according to legal journals, is that
'respect for (constitutional) principles is eroded
when they leap their proper bounds to interfere
with the legitimate interests of society in
enforcement of its laws..... (Couch v. United
25 States (1972) 409 U.S. 322, 336. Our
constitutional perspective has, therefore, to be
relative and cannot afford to be absolutist,
especially when torture technology, crime
escalation and other social variables affect the
30 application of principles in producing humane
justice.
10. The National Police Commission in
its Third Report referring to the quality
of arrests by the Police in India
35 mentioned power of arrest as one of the
Chief sources of corruption in the
police. The report suggested that, by and
large, nearly 60% of the arrests were
either unnecessary or unjustified and
40 that such unjustified police action
accounted for 43.2% of the expenditure
of the jails. The said Commission in its
Third Report at page 31 observed thus:
It is obvious that a major portion of the arrests
45 were connected with very minor prosecutions
and cannot, therefore, be regarded as quite
necessary from the point of view of crime
prevention. Continued detention in jail of the
persons so arrested has also meant avoidable
50 expenditure on their maintenance. In the above
period it was estimated that 43.2% of the
expenditure in the connected jails was over
such prisoners only who in the ultimate
analysis need not have been arrested at all.
55 As on today, arrest with or without
warrant depending upon the
circumstances of a particular case is
governed by the Code of Criminal
Procedure. Whenever a public servant is
60 arrested that matter should be intimated
to the superior officers, if possible,
before the arrest and in any case,
immediately after the arrest. In cases of
members of Armed Forces, Army, Navy
65 or Air Force, intimation should be sent
to the Officer commanding the unit to
which the member belongs. It should be
done immediately after the arrest is
effected. Under Rule 229 of the
70 Procedure and Conduct of Business in
Lok Sobha, when a Member is arrested
on a criminal charge or is detained under
an executive order of the Magistrate, the
executive authority must inform without
75 delay such fact to the Speaker. As soon
as any arrest, detention, conviction or
release is effected intimation should
invariably be sent to the Government
concerned concurrently with the
80 intimation sent to the Speaker/Chairman
of the Legislative
Assembly/Council/Lok Sabha Rajya
Sabha. This should be sent through
telegrams and also by post and the
85 intimation should not be on the ground
of holiday.
91
 With regard to the apprehension of
juvenile offenders Section 58 of the
Criminal Procedure lays down as under:
Officers in charge of police Stations shall
5 report to the District Magistrate or, if he so
directs, to the Sub-Divisional Magistrate, the
cases of all persons arrested without warrant,
within the limits of their respective stations
whether such persons have been admitted to
10 bail or otherwise.
Section 19(a) of the Children Act makes
the following provision:
the parent or guardian of the child, if he can be
found, of such arrest and direct him to be
15 present at the children's court before which the
child will appear;
In England, the police powers of Arrest
Detention and interrogation have been
streamlined by the Police and Criminal
20 Evidence Act, 1984 based on the report of
Sir Cyril Philips Committee ("Report of a
Royal Commission on Criminal Procedure.
Command - papers 8092 19811).
It is worth quoting the following
25 passage from Police Powers and
Accountability by John L. Lambert,
page 93:
More recently, the Royal
Commission on Criminal Procedure
30 recognised that "there is a critically
important relationship between the
police and the public in the
detection and investigation of
crime" and suggested that public
35 confidence in police powers
required that these conform to three
principal standards: fairness,
openness and workability.
(Emphasis supplied)
40 The Royal Commission suggested
restrictions on the power of arrest on the
basis of the 'necessity of principle'. The
two main objectives of this principle are
that police can exercise powers only in
45 those cases in which it was genuinely
necessary to enable them to execute
their duty to prevent the Commission of
offences, to investigate crime. The
Royal Commission was of the view that
50 such restrictions would diminish the use
of arrest and produce more uniform use
of powers. The Royal Commission
Report on Criminal Procedure - Sir
Cyril Philips at page 45 said:
55 ...We recommend that detention
upon arrest for an offence should
continue only on one or more of the
following criteria:
(a) the person's
60 unwillingness to identify
himself so that a summons
may be served upon him;
(b) the need to prevent the
continuation or repetition
65 of that offence;
(c) the need to protect the
arrested person himself or
other persons or property;
(d) the need to secure or
70 preserve evidence of or
relating to that offence or
to obtain such evidence
from the suspect by
questioning him; and
75 (e) the likelihood of the
person failing to appear at
court to answer any charge
made against him.
92
 The Royal Commission in the (iii) The accused is
above said Report at page 46 given to violent
also suggested: behaviour and is
45 likely to commit
To help to reduce the use of arrest we would further offences
5 also propose the introduction here of a scheme unless his
that is used in Ontario enabling a police officer movements are
to issue what is called an appearance notice. brought under
That procedure can be used to obtain 50 restraint.
attendance at the police station without
10 resorting to arrest provided a power to arrest (iv) The accused is
exists, for example to be fingerprinted or to a habitual offender
participate in an identification parade. It could and unless kept in
also be extended to attendance for interview at custody he is
a time convenient both to the suspect and to 55 likely to commit
15 the police officer investigating the case.... similar offences
again.
In India, Third Report of the
National Police Commission at It would be desirable to
page 32 also suggested: insist through
60 departmental
....An arrest during the instructions that a police
20 investigation of a officer making an arrest
cognizable case may be should also record in the
considered justified in one case diary the reasons
or other of the following 65 for making the arrest,
circumstances: thereby clarifying his
conformity to the
25 (i) The case specified guidelines....
involves a grave
offence like The above guidelines are merely
murder; dacoity, 70 incidents of personal liberty guaranteed
robbery, rape, etc., under the Constitution of India. No
30 and it is necessary arrest can be made because it is lawful
to arrest the for the Police Officer to do so. The
accused and bring existence of the power to arrest is one
his movements 75 thing. The justification for the exercise
under restraint to of it is quite another. The Police Officer
35 infuse confidence must be able to justify the arrest apart
among the terror from his power to do so. Arrest and
stricken victims. detention in police lock-up of a person
80 can cause incalculable harm to the
(ii) The accused is reputation and self esteem of a person.
likely to abscond No arrest can be made in a routine
40 and evade the manner on a mere allegation of
processes of law commission of an offence made against
85 a person. It would be prudent for a

93
 Police Officer in the interest of
protection of the constitutional rights of
a citizen" and perhaps in his own
interest that no arrest should be made
5 without a reasonable satisfaction
reached after some investigation as to
the genuineness and bonafides of a
complaint and a reasonable belief both
as to the person's complicity and even so
10 as to the need to effect arrest. Denying a
person of his liberty is a serious matter,
The recommendations of the Police
Commission merely reflect the
constitutional concomitants of the
15 fundamental right to personal liberty and
freedom. A person is not liable to arrest
merely on the suspicion of complicity in
an offence. There must be some
reasonable justification in the opinion of
20 the Officer effecting the arrest that such
arrest is necessary and justified. Except
in heinous offences, an arrest must be
avoided if a Police Officer issues notice
to person to attend the Station House
25 and not to leave Station without
permission would do.
Then, there is the right to have someone
informed. That right of the arrested
person, upon request, to have someone
30 informed and to consult privately with a
lawyer was recognised by
Section 56(1) of the Police and Criminal
Evidence Act, 1984 in England. (Civil
Actions Against the Police - Richard
35 Clayton and Hugh Tomlinson; page
313). That Section provides:
Where a person has been arrested and is being
held in custody in a police station or other
premises, he shall be entitled, if he so requests,
40 to have one friend or relative or other person
who is known to him or who is likely to take
an interest in his welfare told, as soon as is
practicable except to the extent that delay is
permitted by this section, that he has been
45 arrested and is being detained there.
These rights are inherent in
Articles 21 and 22(1) of the Constitution
and require to be recognised and
scrupulously protected. For effective
50 enforcement of these fundamental
rights, we issue the following
requirements:
1. An arrested person being held in
custody is entitled, if he so requests to
55 have one friend, relative or other person
who is known to him or likely to take an
interest in his welfare told as far as is
practicable that he has been arrested and
where is being detained.
60 2. The Police Officer shall inform the
arrested person when he is brought to
the police station of this right.
3. An entry shall be required to be made
in the Diary as to who was informed of
65 the arrest. These protections from power
must be held to flow from
Articles 21 and 22(1) and enforced
strictly.
It shall be the duty of the Magistrate,
70 before whom the arrested person is
produced, to satisfy himself that these
requirements have been complied with.
The above requirements shall be
followed in all cases of arrest till legal
75 provisions are made in this behalf.
These requirements shall be in addition
to the right of the' arrested persons
found in the various Police Manuals.
These requirements are not exhaustive.
80 The Directors General of Police of all
the Suites in India shall issue necessary
instructions requiring due observance of
these requirements. In addition,
departmental instruction shall also be
85 issued that a police officer making an
arrest should also record in the case
diary, the reasons for making the arrest.
94
 UoI vs. Padma Narain Aggarwal
(2008) 13 SCC 305
Objectives:
1. To understand Law of Arrest.
2. Meaning of Term Arrest
3. To understand contours of Anticipatory Bail
JUDGMENT
C.K. Thakker, J.
The present appeal is filed by the Union of
India against the judgment and order dated
November 30, 2006 passed by the High
Court of Judicature for Rajasthan (Jaipur
5 Bench). The High Court held that since the
respondents herein were merely
summoned under Section 108 of the
Customs Act, 1962 to give their statements
in the inquiry, anticipatory bail
10 applications filed by them were pre-mature
and were required to be disposed of. The
learned Single Judge, therefore, ordered
the respondents to appear before the
Customs Authorities in response to the
15 summons. He, however, directed that in
case the Customs Authorities find that any
non bailable offence has been committed
by the respondents, they shall not be
arrested without ten days prior notice.
20 Facts
It is the case of the appellant (Union of
India) that Director of Revenue
Intelligence (`DRI' for short) was
investigating the matter in respect of
25 export of readymade garments by M/s
B.A. International valued at Rs. 4.75
crores through various ports during
December, 2000 to March, 2003.
According to the allegation of the
30 appellant, on the basis of information
received from the Income Tax Department
on September 15, 2006, investigation was
conducted and search operation was
carried out at two office premises of M/s
35 B.A. International which revealed that the
so-called suppliers of raw material i.e.
fabrics and job workers of garments, were
bogus and non-existent entities and at the
declared address, no such firms or business
40 entities were found. The accused thereby
fraudulently availed drawback amounting
to Rs. 75 lakhs approximately.
M/s B.A. International is a partnership
firm and is controlled by Padam Narain
45 Agarwal-respondent No. 1. Asha Rani
Aggarwal, respondent No. 2 is the wife of
Padam Narain Aggarwal. Other partners of
the said firm are family members of
Padam Narain Aggarwal. The overseas
50 inquiry conducted through Central Board
of Direct Taxes (CBDT) and Director of
Revenue Intelligence (DRI) disclosed
export of readymade garments under two
shipping bills and receipt of foreign
55 exchange. But in fact, no such export had
been made either by Padam Narain
Aggarwal or by M/s B.A. International.
Investigation also revealed that false and
fabricated bills were prepared in order to
60 mislead Investigating Agencies. Income
Tax Department, hence, disallowed the
benefit of exports said to have been earned
by M/s B.A. International against the
shipping bills as claimed by the
65 partnership firm under Section 80HHC of
the Income Tax Act, 1961 by treating the
remittance as bogus export proceeds.
Departmental proceedings
6. Proceedings were initiated by the
70 Customs Department under the Customs
Act, 1962 The respondents were issued
95
 summons to appear on September 15, 16,
22, 25, 29 and on October 6, 11, 17 and
26, 2006, so as to enable the Department
to investigate the case. The respondents,
5 however, did not join the investigation and
there was total non-co-operation by them.
Criminal proceedings
In view of non-co-operation by the
respondents, complaints were filed by the
10 Custom Authorities in a competent Court
on September 16, 2006 and November 17,
2006 for commission of offences
punishable under Sections 174 and175,
Indian Penal Code, 1860.
15 Application for anticipatory bail
The accused came to know about the filing
of complaints. They, therefore, made
applications for anticipatory bail before the
District and Sessions Court, Jaipur. The
20 learned Judge, however, dismissed the
applications by an order dated November
22, 2006. The accused approached the
High Court of Rajasthan (Jaipur Bench)
and as stated above, the applications were
25 disposed of by the High Court directing
the Customs Authorities not to arrest the
respondents of any non-bailable offence
without ten days prior notice to them.
The said order is challenged by the Union
30 of India in this Court.
To understand the issues raised by the
Union of India in the appeal, let us
examine the relevant provisions of the
Customs Act, 1962.
35 The Act consolidates and amends the law
relating to customs. Chapter IV empowers
the Central Government to prohibit import
or export of goods of specified description.
Chapters IVA to IVC relate to detection of
40 illegally imported goods, prevention of
disposal thereof, etc.
Chapter XIII (Sections 100-110) is an
important Chapter and deals with search,
seizure and arrest. Sections 100-03
45 authorise Custom Officers to search
suspected persons. Section 104 enables
Custom Officers to arrest a person.
Similarly, power to search premises and
conveyances is found in Sections 105 to
50 106A. Sections 107-09 empower Custom
Officers to examine persons and summon
them to give evidence and produce
documents. Seizure of goods, documents
and things can be effected under
55 Section 110.
Chapter XIV provides for confiscation of
goods and conveyances as also imposition
of penalties. Chapter XVI (Sections 132-
140A) deals with offences and
60 prosecutions.
Power to arrest
The term "arrest" has neither been defined
in the Code of Criminal Procedure, 1973
nor in the Indian Penal Code, 1860 nor in
65 any other enactment dealing with offences.
The word "arrest" is derived from the
French word "arrater" meaning "to stop or
stay". It signifies a restraint of a person.
"Arrest" is thus a restraint of a man's
70 person, obliging him to be obedient to law.
"Arrest" then may be defined as "the
execution of the command of a Court of
Law or of a duly authorized officer".
Sections 41-44 and 46 of the Code of
75 Criminal Procedure, 1973 deal with arrest
of a person. Section 41 empowers a Police
Officer to arrest any person without
warrant. Section 42 deals with the power
of a Police Officer to arrest any person
80 who in the presence of such Police Officer
has committed or has been accused of
committing a non-cognizable offence and
refuses to give his name and residence or
gives a name or residence which such
85 officer has reason to believe to be false.
Section 43 enables a private person to
arrest any person who in his presence
96
 commits a non-cognizable offence, or is a
proclaimed offender. Section 44 deals with
cases of arrest by a Magistrate.
Section 46 lays down manner of arrest.
5 So far as the Customs Act, 1962 is
concerned, the power to arrest is contained
in Section 104 thereof. It reads thus;
Power to arrest.--(1) If an officer of customs
empowered in this behalf by general or
10 special order of the Commissioner of
Customs has reason to believe that any
person in India or within the Indian customs
waters has committed an offence punishable
under Section 132or Section 133 or
15 Section 135 or Section 135A or Section 136,
he may arrest such person and shall, as
soon as may be, inform him of the grounds
for such arrest.
(2) Every person arrested under Sub-section
20 (1) shall, without unnecessary delay, be
taken to a magistrate.
(3) Where an officer of customs has arrested
any person under Sub-section (1), he shall,
for the purpose of releasing such person on
25 bail or otherwise, have the same powers
and be subject to the same provisions as the
officer-in-charge of a police station has and
is subject to under the Code of Criminal
Procedure, 1898 (5 of 1898).
30 (4) Notwithstanding anything contained in
the Code of Criminal Procedure, 1898 (5 of
1898), an offence under this Act shall not be
cognizable.
25. Section 104 thus empowers a Custom
35 Officer to arrest a person if he has `reason
to believe' that such person has committed
any offence mentioned therein. It also
enjoins the officer to take the arrested
person to a Magistrate `without
40 unnecessary delay'. The section also
provides for release of such person on bail.
Anticipatory bail
26. Section 438 of the Code makes special
provision for granting `anticipatory bail'
45 which was introduced in the present Code
of 1973. The expression (`anticipatory
bail') has not been defined in the Code. But
as observed in Balchand Jain v. State of
M.P. [1977]2SCR52 , anticipatory bail
50 means a bail in anticipation of arrest. The
expression `anticipatory bail' is a
misnomer inasmuch as it is not as if bail
presently granted in anticipation of arrest.
Where a competent court grants
55 `anticipatory bail', it makes an order that in
the event of arrest, a person shall be
released on bail. There is no question of
release on bail unless a person is arrested
and, therefore, it is only on arrest that the
60 order granting anticipatory bail becomes
operative.
27. It was also observed that the power of
granting `anticipatory bail' is extraordinary
in character and only in exceptional cases
65 where it appears that a person is falsely
implicated or a frivolous case is launched
against him or "there are reasonable
grounds for holding that a person accused
of an offence is not likely to abscond, or
70 otherwise misuse his liberty while on bail"
that such power may be exercised. Thus,
the power is `unusual in nature' and is
entrusted only to the higher echelons of
judicial service, i.e. a Court of Session and
75 a High Court.
28. The Code of Criminal Procedure, 1898
(old Code) did not contain specific
provision corresponding to Section 438 of
the present Code of 1973. Under the old
80 Code, there was a sharp difference of
opinion amongst various High Courts on
the question whether a Court had inherent
power to make an order of bail in
anticipation of arrest. The preponderance
85 of view, however, was that it did not have
such power. The Law Commission of
India considered and question and
recommended to introduce express
provision by observing as under;
90 The suggestion for directing the release
of a person on bail prior to his arrest
97
 (commonly known as "anticipatory
bail") was carefully considered by us.
Though there is a conflict of judicial
opinion about the power of a Court to
5 grant anticipatory bail, the majority
view is that there is no such power
under the existing provisions of the
Code. The necessity for granting
anticipatory bail arises mainly because
10 sometimes influential persons try to'
implicate their rivals in false cases for
the purpose of disgracing them or for
other purposes by getting them detained
in jail for some days. In recent times,
15 with the accentuation of political rivalry,
this tendency is showing signs of steady
increase. Apart from false cases, where
there are reasonable grounds for holding
that a person accused of an offence is
20 not likely to abscond, or otherwise
misuse his liberty while on bail, there
seems no justification to require him
first to submit to custody, remain in
prison for some days and then apply for
25 bail.
We recommend the acceptance of this
suggestion. We are further of the view
that this special power should be
conferred only on the High Court and
30 the Court of Session, and that the order
should take effect at the time of arrest or
thereafter.
[Law Commission of India, Forty-first
Report, Vol. 1, p.32, para 39.9.]
35 The suggestion of the Law Commission
was accepted by the Central Government
and in the Draft Bill of the Code of
Criminal Procedure, 1970, Clause 447
conferred an express power on the High
40 Court and the Court of Session to grant
anticipatory bail.
The Law Commission again considered
the issue and stated;
The Bill introduces a provision for the
45 grant of anticipatory bail. This is
substantially in accordance with the
recommendation made by the previous
Commission. We agree that this would
be a useful addition, though we must
50 add that it is in very exceptional cases
that such a power should be exercised.
We are further of the view that in order
to ensure that the provision is not put to
abuse at the instance of unscrupulous
55 petitioners, the final order should be
made only after notice to the Public
Prosecutor. The initial order should only
be an interim one. Further, the relevant
section should make it clear that the
60 direction can be issued only for reasons
to be recorded, and if the court is
satisfied that such a direction is
necessary in the interests of justice.
It will also be convenient to provide that
65 notice of the interim order as well as of
the final orders will be given to the
Superintendent of Police forthwith.
[Law Commission of India, Forty-eighth
Report, para 31]
70 Keeping in view the reports of the Law
Commission, Section 438 was inserted in
the present Code. Sub-section (1) of
Section 438 enacts that when any person
has reason to believe that he may be
75 arrested on an accusation of having
committed a non-bailable offence, he may
apply to the High Court or to the Court of
Session for a direction that in the event of
his arrest he shall be released on bail, and
80 the Court may, if it thinks fit, direct that in
the event of such arrest he shall be
released on bail. Sub-section (2) empowers
the High Court or the Court of Session to
impose conditions enumerated therein.
85 Sub-section (3) states that if such person is
thereafter arrested without warrant by an
officer in charge of a police station on
such accusation, he shall be released on
bail.
98
 In the leading case of Gurbaksh Singh
Sibbia and Ors. v. State of
Punjab1980CriLJ1125 , the Constitution
Bench of this Court was called upon to
5 consider correctness or otherwise of
principles laid down by the Full Bench of
High Court of Punjab & Haryana
in Gurbaksh Singh Sibbia v. State of
Punjab AIR 1978 P & H 1 : 1978 Crl LJ
10 20 (FB). The Full Bench of the High Court
summarized the law relating to
anticipatory bail as reflected in
Section 438 of the Code and laid down
certain principles as to when discretionary
15 power to grant anticipatory bail may be
exercised by a Court.
This Court partly disagreeing with the
judgment of the High Court held that the
Legislature conferred a wide discretion on
20 the High Court and the Court of Session to
grant anticipatory bail since it
felt, firstly, that it would be difficult to
enumerate the conditions under which
anticipatory bail should or should not be
25 granted and secondly, because the
intention was to allow the higher courts in
the echelon a somewhat free hand in the
grant of relief in the nature of anticipatory
bail.
30 The Court stated; Generalizations on
matters which rest on discretion and the
attempt to discover formulae of universal
application when facts are bound to differ
from case to case frustrate the very
35 purpose of conferring discretion. No two
cases are alike on facts and therefore,
Courts have to be allowed a little free play
in the joints if the conferment of
discretionary power is to be meaningful.
40 There is no risk involved in entrusting a
wide discretion to the Court of Session and
the High Court in granting anticipatory
bail because, firstly, these are higher
Courts manned by experienced persons,
45 secondly, their orders are not final but are
open to appellate or revisional scrutiny and
above all because, discretion has always to
be exercised by Courts judicially and not
according to whim, caprice or fancy. On
50 the other hand, there is a risk in
foreclosing categories of cases in which
anticipatory bail may be allowed because
life throws up unforeseen possibilities and
offers new challenges. Judicial discretion
55 has to be free enough to be able to take
these possibilities in its stride and to meet
these challenges. (emphasis supplied)
According to this Court, therefore,
discretionary power conferred by the
60 Legislature on higher judiciary cannot be
put in a straight-jacket formula. Such
power must be exercised by the Court
keeping in view facts and circumstances of
an individual case. Speaking for the Court,
65 Chandrachud, C.J. stated;
Judges have to decide cases as they come
before them, mindful of the need to keep
passions and prejudices out of their
decisions. And it will be strange if, by
70 employing judicial artifices and techniques,
we cut down the discretion so wisely
conferred upon the Courts, by devising a
formula which will confine the power to
grant anticipatory bail within a strait-
75 jacket. While laying down cast-iron rules in
a matter like granting anticipatory bail, as
the High Court has done, it is apt to be
overlooked that even Judges can have but
an imperfect awareness of the needs of new
80 situations. Life is never static and every
situation has to be assessed in the context of
emerging concerns as and when it arises.
Therefore, even if we were to frame a 'Code
for the grant of anticipatory bail', which
85 really is the business of the Legislature, it
can at best furnish broad guide-lines and
cannot compel blind adherence. In which
case to grant bail and in which to refuse it
is, in the very nature of things, a matter of
90 discretion. But apart from the fact that the
question is inherently of a kind which calls
for the use of discretion from case to case,
the legislature has, in terms express,
relegated the decision of that question to the
95 discretion of the court, by providing that it
may grant bail "if it thinks fit". The concern
of the Courts generally is to preserve their
discretion without meaning to abuse it. It
will be strange if we exhibit concern to
99
 stultify the discretion conferred upon the
Courts by law. (emphasis supplied)
We may also refer to at this stage
`Malimath Committee on Reforms of
5 Criminal Justice System'. Considering the
exercise of power by Courts under
Section 438 and grant of anticipatory bail
in favour of applicants, the Committee
observed that the provision as to
10 anticipatory bail has often been `misused
by rich and influential people'. The
Committee, however, opined to retain the
provision subject to two conditions; (i)
Public Prosecutor should be heard by the
15 court before granting an application for
anticipatory bail; and (ii) Petition for
anticipatory bail should be heard only by
the court of competent jurisdiction. It may
be stated that Section 438 has been
20 amended by the Code of Criminal
Procedure (Amendment) Act, 2005 which
now provides for hearing of Public
Prosecutor before granting an application
for anticipatory bail. Sub-sections (1A)
25 and (1B) also provide for notice and
presence of applicant in the Court seeking
anticipatory bail. The said provisions,
however, have not been brought into force
so far.
30 In Gurbaksh Singh, this Court also held
that before power under Sub-section (1) of
Section 438 is exercised, the Court must
be satisfied that the applicant invoking the
provision of anticipatory bail has `reason
35 to believe' that he is likely to be arrested
for a non-cognizable offence. The Court
stated;
Section 438(1) of the Code lays down a
condition which has to be satisfied
40 before anticipatory bail can be granted.
The applicant must show that he has
"reason to believe" that he may be
arrested for a non-bailable offence. The
use of the expression "reason to believe"
45 shows that the belief that the applicant
may be so arrested must be founded on
reasonable grounds. Mere 'fear' is not
'belief, for which reason it is not enough
for the applicant to show that he has
50 some sort of a vague apprehension that
some one is going to make an accusation
against him, in pursuance of which he
may be arrested. The grounds on which
the belief of the applicant is based that
55 he may be arrested for a non-bailable
offence, must be capable of being
examined by the Court objectively,
because it is then alone that the Court
can determine whether the applicant has
60 reason to believe that he may be so
arrested. Section438(1), therefore,
cannot be invoked on the basis of vague
and general allegations, as if to arm
oneself in perpetuity against a possible
65 arrest. Otherwise, the number of
applications for anticipatory bail will be
as large as, at any rate, the adult
populace. Anticipatory bail is a device
to secure the individual's liberty; it is
70 neither a passport to the commission of
crimes nor a shield against any and all
kinds of accusations, likely or unlikely.
(emphasis supplied)
43. The Court proceeded to state that the
75 High Court or the Court of Session must
apply its own mind to the question and
decide whether a case has been made out
for grant of such relief. If condition
precedent laid down in Sub-section (1) of
80 Section 438 is not satisfied and there is no
reason to believe that the applicant is
likely to be arrested for commission of a
non-bailable offence, the Court has no
power to grant anticipatory bail.
85 44. This Court, however, held that the
High Court was wholly right so far as
proposition (2) was concerned. The High
Court in proposition (2) said;
Neither Section 438 nor any other
90 provision of the Code authorizes the
grant of blanket anticipatory bail for
offences not yet committed or with
regard to accusations not so far levelled.
100
 45. Agreeing with the said proposition,
this Court stated;
We agree that a 'blanket order' of
anticipatory bail should not generally be
5 passed. This flows from the very
language of the section which, as
discussed above, requires the applicant
to show that he has "reason to believe"
that he may be arrested. A belief can be
10 said to be founded on reasonable
grounds only if there is something
tangible to go by on the basis of which it
can be said that the applicant's
apprehension that he may be arrested is
15 genuine. That is why, normally, a
direction should not issue under
Section 438(1) to the effect that the
applicant shall be released on bail
"whenever arrested for whichever
20 offence whatsoever." That is what is
meant by a 'blanket order' of
anticipatory bail, an order which serves
as a blanket to cover or protect any and
every kind of allegedly unlawful
25 activity, in fact any eventuality, likely or
unlikely regarding which, no concrete
information can possibly be had. The
rationale of a direction under
Section 438(1) is the belief of the
30 applicant founded on reasonable
grounds that he may be arrested for a
non-bailable offence. It is unrealistic to
expect the applicant to draw up his
application with the meticulousness of a
35 pleading in a civil case and such is not
requirement of the section. But specific
events; and facts must be disclosed by
the applicant in order to enable the
court to judge of the reasonableness of
40 his belief, the existence of which is the
sine qua non of the exercise of power
conferred by the section. (emphasis
supplied)
The Court also stated that apart from the
45 language of the statute, there is an
important principle involved in the
insistence of the fact that the direction
under Section 438(1) must be clear and
specific and not vague and general.
50 Safeguards against abuse of power
From the above discussion, it is amply
clear that power to arrest a person by a
Custom Officer is statutory in character
and cannot be interfered with. Such power
55 of arrest can be exercised only in those
cases where the Custom Officer has
`reason to believe' that a person has been
guilty of an offence punishable under
Sections 132, 133, 135,135A or 136 of the
60 Act. Thus, the power must be exercised
on objective facts of commission of an
offence numerated and the custom officer
has reason to believe that a person sought
to be arrested has been guilty of
65 commission of such offence. The power to
arrest thus is circumscribed by objective
considerations and cannot be exercised on
whims, caprice or fancy of the officer.
The section also obliges the Custom
70 Officer to inform the person arrested of the
grounds of arrest as soon as may be. The
law requires such person to be produced
before a Magistrate `without unnecessary
delay'.
75 The law thus, on the one hand, allows a
Custom Officer to exercise power to arrest
a person who has committed certain
offences, and on the other hand, takes due
care to ensure individual freedom and
80 liberty by laying down norms and
providing safeguards so that the power of
arrest is not abused or misused by the
authorities. It is keeping in view these
considerations that we have to decide
85 correctness or otherwise of the directions
issued by a single Judge of the High Court.
`Blanket' order of bail may amount to or
result in an invitation to commit an offence
or a passport to carry on criminal activities
90 or to afford a shield against any and all
types of illegal operations, which, in our
judgment, can never be allowed in a
society governed by Rule of Law.
101
 Conditions not lawful
In the case on hand, the respondents were
only summoned under Section 108 of the
Act for recording of their statements. The
5 High Court was conscious and mindful of
that fact. It, therefore, held that
applications for anticipatory bail, in the
circumstances, were pre-mature. They
were, accordingly, disposed of by directing
10 the respondents to appear before the
Custom Authorities. The Court, however,
did not stop there. It stated that even if the
Custom Authorities find any non- bailable
offence against the applicants (respondents
15 herein), they shall not be arrested "without
ten days prior notice to them.
6In our judgment, on the facts and in the
circumstances of the present case, neither
of the above directions can be said to be
20 legal, valid or in consonance with
law. Firstly, the order passed by the High
Court is a blanket one as held by the
Constitution Bench of this Court in
Gurbaksh Singh and seeks to grant
25 protection to respondents in respect of any
non-bailable offence. Secondly, it illegally
obstructs, interferes and curtails the
authority of Custom Officers from
exercising statutory power of arrest a
30 person said to have committed a non-
bailable offence by imposing a condition
of giving ten days prior notice, a condition
not warranted by law. The order passed by
the High Court to the extent of directions
35 issued to the Custom Authorities is,
therefore, liable to be set aside and is
hereby set aside.
102
 Raghuvansh Dewanchand Bhasin Vs State of Maharashtra & Anr (2012) 9 SCC 791
Objectives
1. To understand true purport of non bailable warrant
2. Guidelines for issuing non bailable warrant
JUDGMENT
D.K. Jain, J.
High Court by the impugned judgment,
while allowing the writ petition filed by
the Appellant, alleging harassment on
5 account of his arrest on the strength of a
non-bailable warrant, which had been
cancelled, the High Court has directed
the delinquent police officer to pay by
way of costs to the Appellant an amount
10 of Rs. 2,000/- from his own account.
Facts: Some time in the year 2000, one,
Mr. Prem Harchandrai filed a complaint,
being C.C. No. 163/P/2000, against the
Appellant, a practicing Advocate, under
15 Section 324 of the Indian Penal Code in
relation to some incident alleged to have
taken place in the 'Radio Club' at Mumbai,
considered to be a club for the elite. When
at a preliminary stage, the case came up
20 for hearing before the Additional Chief
Metropolitan Magistrate on 7th August,
2002, finding the Appellant to be absent,
the Court issued a non-bailable warrant
against him returnable on 31st October,
25 2002. The warrant was forwarded to the
Colaba Police Station for execution.
However, on 12th August, 2002, on
Appellant's putting in an appearance
before the Court, the warrant was
30 cancelled.
On 15th August, 2002, the complainant
approached the Colaba Police Station and
insisted on the arrest of the Appellant in
pursuance of the said non-bailable warrant.
35 Thereupon, Respondent No. 2, who at that
point of time was posted as an Inspector of
Police at the Colaba Police Station,
directed a constable to accompany the
complainant, and execute the warrant.
40 When the Appellant was sought to be
arrested, he informed the constable that the
said warrant had already been cancelled.
However, as he could not produce any
documentary evidence relating to
45 cancellation of warrant, the Appellant was
arrested before a public gathering which
had assembled at the Radio Club, in
connection with the Independence day
celebrations. He was produced before the
50 duty Magistrate at about 2 P.M., the same
day. The Magistrate directed the release of
the Appellant. It appears that the Appellant
obtained the necessary confirmation about
cancellation of the warrant on the next day
55 i.e. 16th August 2002 and produced the
same before Respondent No. 2 on the
same day. Alleging malafides and
humiliation at the hands of Respondent
No. 2, in collusion with the complainant,
60 the Appellant approached the High Court,
inter-alia, praying for suitable disciplinary
action against Respondent No. 2; adequate
compensation; damages and costs by the
said Respondent from his own pocket.
65
As aforesaid, the High Court, vide
impugned judgment has allowed the writ
petition.Thus, having failed to get the
desired relief from the High Court, the
70 Appellant is before us in this appeal.
Arguing the case in person, it was
strenuously urged by the Appellant that
having regard to the nature of offence
alleged against him, in the first place, the
75 Additional Chief Metropolitan Magistrate
erred in law in issuing non-bailable
103
 warrant in a routine manner, without
application of mind, merely because the
Appellant had failed to appear in court on
7th August 2002. It was asserted that since
5 neither Section 70 nor Section 71 of the
Code of Criminal Procedure, 1973 uses the
expression "non-bailable" a Magistrate is
not authorised to issue non-bailable
warrant of arrest even when an accused
10 fails to appear in the court. It was
submitted that having held that the
Respondent No. 2 was guilty of
misconduct, the High Court failed to
punish the said Respondent under
15 Sections 342 and 345 of the Indian Penal
Code. It was argued that the misconduct of
Respondent No. 2 was so high that he
should have been forthwith suspended
from his job and ordered to be tried in a
20 competent criminal court. According to the
Appellant, the direction of the High Court
asking Respondent No. 2 to pay an amount
of Rs. 2,000/- by way of cost to the
Appellant was No. justice at all and if a
25 strict action is not taken against such
delinquent officers, they will continue to
disregard the orders of the courts with
impunity.
Per contra, Mr. Jay Savla, learned
30 Counsel appearing for Respondent No. 2
submitted that since the Appellant was
unable to furnish any document or order
to establish that non-bailable warrant
issued against him by the court had been
35 cancelled, the police authorities were
left with No. option and in fact were
duty bound to execute the same. It was
also urged that, as per the prevalent
practice, whenever any non-bailable
40 warrant is cancelled by the court, either
memo or order addressed to the Senior
Inspector of Police of the concerned
police station is issued and forwarded
directly to the concerned police station
45 with a direction to return the said
warrant to the court. But in the present
case No. such memo or order in writing
had been received at the police station
on or before 15th August 2002, when it
50 was executed. Learned Counsel
submitted that the said Respondent
having performed his duty bona fide and
in good faith, in pursuance of order
issued by the court having jurisdiction,
55 the said Respondent had not committed
any illegal act warranting any action
against him.
It needs little emphasis that since the
execution of a non-bailable warrant
60 directly involves curtailment of liberty
of a person, warrant of arrest cannot be
issued mechanically, but only after
recording satisfaction that in the facts
and circumstances of the case, it is
65 warranted. The Courts have to be extra-
cautious and careful while directing
issue of non-bailable warrant, else a
wrongful detention would amount to
denial of constitutional mandate
70 envisaged in Article 21 of the
Constitution of India. At the same time,
there is No. gainsaying that the welfare
of an individual must yield to that of the
community. Therefore, in order to
75 maintain rule of law and to keep the
society in functional harmony, it is
necessary to strike a balance between an
individual's rights, liberties and
privileges on the one hand, and the State
80 on the other. Indeed, it is a complex
exercise. As Justice Cardozo puts it "on
the one side is the social need that crime
shall be repressed. On the other, the
social need that law shall not be flouted
85 by the insolence of office. There are
dangers in any choice." Be that as it
may, it is for the court, which is clothed
with the discretion to determine whether
the presence of an accused can be
90 secured by a bailable or non-bailable
warrant, to strike the balance between
the need of law enforcement on the one
104
 hand and the protection of the citizen
from highhandedness at the hands of the
law enforcement agencies on the other.
The power and jurisdiction of the court
5 to issue appropriate warrant against an
accused on his failure to attend the court
on the date of hearing of the matter
cannot be disputed. Nevertheless, such
power has to be exercised judiciously
10 and not arbitrarily, having regard, inter-
alia, to the nature and seriousness of the
offence involved; the past conduct of the
accused; his age and the possibility of
his absconding. Also See: State of
15 U.P. v. Poosu and Anr.
In Inder Mohan Goswami and
Anr. v. State of Uttaranchal and Ors.
(2007) 12 SCC 1, a Bench of three
learned Judges of this Court cautioned
20 that before issuing non-bailable
warrants, the Courts should strike a
balance between societal interests and
personal liberty and exercise its
discretion cautiously. Enumerating some
25 of the circumstances which the Court
should bear in mind while issuing non-
bailable warrant, it was observed:
53. Non-bailable warrant should be
issued to bring a person to court
30 when summons or bailable
warrants would be unlikely to have
the desired result. This could be
when:
• it is reasonable to believe
35 that the person will not
voluntarily appear in
court; or
• the police authorities are
unable to find the person to
40 serve him with a summon;
or
• it is considered that the
person could harm
someone if not placed into
45 custody immediately.
54. As far as possible, if the court is
of the opinion that a summon will
suffice in getting the appearance of
the accused in the court, the
50 summon or the bailable warrants
should be preferred. The warrants
either bailable or non-bailable
should never be issued without
proper scrutiny of facts and
55 complete application of mind, due
to the extremely serious
consequences and ramifications
which ensue on issuance of
warrants. The court must very
60 carefully examine whether the
criminal complaint or FIR has not
been filed with an oblique motive.
55. In complaint cases, at the first
instance, the court should direct
65 serving of the summons along with
the copy of the complaint. If the
accused seem to be avoiding the
summons, the court, in the second
instance should issue bailable
70 warrant. In the third instance, when
the court is fully satisfied that the
accused is avoiding the court's
proceeding intentionally, the
process of issuance of the non-
75 bailable warrant should be resorted
to. Personal liberty is paramount,
therefore, we caution courts at the
first and second instance to refrain
from issuing non-bailable warrants.
80 We deferentially concur with these
directions, and emphasize that since
these directions flow from the right to
life and personal liberty, enshrined in
Articles 21 and 22 of our Constitution,
85 they need to be strictly complied with.
105
 However, we may hasten to add that
these are only broad guidelines and not
rigid rules of universal application when
facts and behavioral patterns are bound
5 to differ from case to case. Since
discretion in this behalf is entrusted with
the court, it is not advisable to lay down
immutable formulae on the basis
whereof discretion could be exercised.
10 As aforesaid, it is for the court
concerned to assess the situation and
exercise discretion judiciously,
dispassionately and without prejudice.
Viewed in this perspective, we regret to
15 note that in the present case, having
regard to nature of the complaint against
the Appellant and his stature in the
community and the fact that admittedly
the Appellant was regularly attending
20 the court proceedings, it was not a fit
case where non-bailable warrant should
have been issued by the Additional
Chief Metropolitan Magistrate. In our
opinion, the attendance of the Appellant
25 could have been secured by issuing
summons or at best by a bailable
warrant. We are, therefore, in complete
agreement with the High Court that in
the facts and circumstances of the case,
30 issuance of non-bailable warrant was
manifestly unjustified.
The power and jurisdiction of this Court
and the High Courts to grant monetary
compensation in exercise of its
35 jurisdiction respectively under
Articles 32 and 226 of the Constitution
of India to a victim whose fundamental
rights under Article 21 of the
Constitution are violated are thus, well-
40 established. However, the question now
is whether on facts in hand, the
Appellant is entitled to monetary
compensation in addition to what has
already been awarded to him by the
45 High Court. Having considered the case
in the light of the fact-situation stated
above, we are of the opinion that the
Appellant does not deserve further
monetary compensation.
50 It is true that the Appellant not only
suffered humiliation in the public
gathering, and remained in judicial
custody for some time but we feel that
for what he had undergone on
55 15th August 2002, some blame lies at his
door as well. Being a practicing
Advocate himself, the Appellant was
fully conversant with the court
procedure and, therefore, should have
60 procured a copy of memo/order dated
12th August 2002, whereby the non-
bailable warrant was cancelled by the
court. As noticed above, admittedly, the
Appellant applied and obtained a copy
65 of such order only on 16th August 2002.
Though the conduct of Respondent No.
2 in arresting the Appellant, ignoring his
plea that the non-bailable warrant issued
by the court in a bailable offence had
70 been cancelled, deserves to be deplored,
yet, strictly speaking the action of
Respondent No. 2 in detaining the
Appellant on the strength of the warrant
in his possession, perhaps motivated,
75 cannot be said to be per se without the
authority of law. In that view of the
matter, in our opinion, No. other action
against Respondent No. 2 is warranted.
He has been sufficiently reprimanded.
80 The last issue raised that remains to be
considered is whether the Courts can at
all issue a warrant, called a "non-
bailable" warrant because No. such
terminology is found in the Code as well
85 as in Form 2 of the Second Schedule to
the Code. It is true that neither
Section 70 nor Section 71, appearing in
Chapter VI of the Code, enumerating the
processes to compel appearance, as also
90 Form 2 uses the expression like "non-
106
 bailable". Section 70 merely speaks of
form of warrant of arrest, and ordains
that it will remain in force until it is
cancelled. Similarly Section 71 talks of
5 discretionary power of Court to specify
about the security to be taken in case the
person is to be released on his arrest
pursuant to the execution of the warrant
issued under Section 70 of the Code.
10 Sub-section 2 of Section 71 of the Code
specifies the endorsements which can be
made on a warrant. Nevertheless, we
feel that the endorsement of the
expression "non-bailable" on a warrant
15 is to facilitate the executing authority as
well as the person against whom the
warrant is sought to be executed to make
them aware as to the nature of the
warrant that has been issued. In our
20 view, merely because Form No. 2,
issued under Section 476 of the Code,
and set forth in the Second schedule,
nowhere uses the expression bailable or
non-bailable warrant, that does not
25 prohibit the Courts from using the said
word or expression while issuing the
warrant or even to make endorsement to
that effect on the warrant so issued. Any
endorsement/variation, which is made
30 on such warrant for the benefit of the
person against whom the warrant is
issued or the persons who are required
to execute the warrant, would not render
the warrant to be bad in law. What is
35 material is that there is a power vested
in the Court to issue a warrant and that
power is to be exercised judiciously
depending upon the facts and
circumstances of each case. Being so,
40 merely because the warrant uses the
expression like "non-bailable" and that
such terminology is not to be found in
either Section 70 or Section 71 of the
Code that by itself cannot render the
45 warrant bad in law. The argument is
devoid of substance and is rejected
accordingly.
22. In view of the aforegoing discussion,
No. ground is made out warranting our
50 interference with the impugned
judgment of the High Court. We
confirm the judgment and dismiss the
appeal accordingly, but with no order as
to costs.
55 23. However, before parting with the
judgment, we feel that in order to
prevent such a paradoxical situation, we
are faced with in the instant case, and to
check or obviate the possibility of
60 misuse of an arrest warrant, in addition
to the statutory and constitutional
requirements to which reference has
been made above, it would be
appropriate to issue the following
65 guidelines to be adopted in all cases
where non-bailable warrants are issued
by the Courts:
(a) All the High Court shall ensure that
the Subordinate Courts use printed and
70 machine numbered Form No. 2 for
issuing warrant of arrest and each such
form is duly accounted for;
(b) Before authenticating, the court must
ensure that complete particulars of the
75 case are mentioned on the warrant;
(c) The presiding Judge of the court (or
responsible officer specially authorized
for the purpose in case of High Courts)
issuing the warrant should put his full
80 and legible signatures on the process,
also ensuring that Court seal bearing
complete particulars of the Court is
prominently endorsed thereon;
(d) The Court must ensure that warrant
85 is directed to a particular police officer
(or authority) and, unless intended to be
open-ended, it must be returnable
whether executed or unexecuted, on or
before the date specified therein;
107
 (e) Every Court must maintain a register
(in the format given below), in which
each warrant of arrest issued must be
entered chronologically and the serial
5 number of such entry reflected on the
top right hand of the process;
(f) No. warrant of arrest shall be issued
without being entered in the register
mentioned above and the concerned
10 court shall periodically check/monitor
the same to confirm that every such
process is always returned to the court
with due report and placed on the
record of the concerned case;
15 (g) A register similar to the one in
Clause (e) supra shall be maintained at
the concerned police station. The
Station House Officer of the concerned
Police Station shall ensure that each
20 warrant of arrest issued by the Court,
when received is duly entered in the said
register and is formally entrusted to a
responsible officer for execution;
(h) Ordinarily, the Courts should not
25 give a long time for return or execution
of warrants, as experience has shown
that warrants are prone to misuse if they
remain in control of executing agencies
for long;
60
30 (i) On the date fixed for the return of the
warrant, the Court must insist upon a
compliance report on the action taken
thereon by the Station House Officer of
the concerned Police Station or the
35 Officer In-charge of the concerned
agency;
(j) The report on such warrants must be
clear, cogent and legible and duly
forwarded by a superior police officer,
40 so as to facilitate fixing of responsibility
in case of misuse;
(k) In the event of warrant for execution
beyond jurisdiction of the Court issuing
it, procedure laid down in
45 Sections 78 and 79 of the Code must be
strictly and scrupulously followed; and
(l) In the event of cancellation of the
arrest warrant by the Court, the order
canceling warrant shall be recorded in
50 the case file and the register maintained.
A copy thereof shall be sent to the
concerned authority, requiring the
process to be returned unexecuted
forthwith. The date of receipt of the
55 unexecuted warrant will be entered in
the aforesaid registers. A copy of such
order shall also be supplied to the
accused
108
 V. S. Kuttan Pillai vs. Ramakrishnan & anr.

AIR 1980 SC 185

Objective

1. To discuss law on issues of search and seizure

2. To discuss law on issuing summons for the production of documents or thing
3. Interpretation of S. 91 and S. 93 of the Code and whether, they violate Article 20(3)
of the Constitution.

JUDGMENT The complainant made an application on

D.A. Desai, J.
Nemo tenetu prodere-no man is bound
to accuse himself-which finds
constitutional recognition in
5 Article 20(3) of the Constitution,
conferring immunity from compelling
an accused person to be a witness
against himself by giving self-
incriminating evidence, has been put
10 into forefront to support a prayer for
quashing the search warrant issued by
the Sub-Divisional Magistrate, Alwaye,
on 4th January 1977 directing the
Deputy Superintendent of Police,
15 Alwaye, to search the premises styled as
the Office of H.M.D.P. Sabha ('Sabha'
for short), Moothakunam, and to seize
the books, documents and papers as set
out in the application for issuance of
20 search warrant.
The Magistrate had before him a
complaint filed by the first respondent
Ramakrishnan against the petitioner and
5 others for having committed offences
25 under
Sections 403, 409, 420 and 477A read
with Section 34, Indian Penal Code.
Original accused 1, and accused 2 the
present petitioner, were respectively
30 President and Secretary of the Sabha
and original accused 3 to 6 were
described as Managers of the Institution.
4th January 1977 requesting the learned
35 Magistrate to issue a search warrant to
search the office premises of the Sabha
and seize the-books, documents, etc.
described in the application, if found
therein. On the very day the Magistrate
40 issued a search warrant and in fact it
was executed and certain books,
vouchers and papers were produced
before the Court. The present petitioner
(original accused 2) requested the
45 learned Magistrate to recall the warrant
and to return the books and documents
seized under the authority of the search
warrant.
The learned Magistrate was of the
50 opinion that in view of the decision of
this Court in Shyamlal Mohanlal v. State
of Gujarat 1965CriLJ256 , and an
earlier decision of V. Khalid, J. of
Kerala High Court, no search warrant
55 could be issued under Section 91 of the
CrPC, 1973 ('new Code' for short), and
accordingly directed that anything
recovered pursuant to the search warrant
issued by him be returned to the person
60 from whom the same were recovered.
The order was, however, to take effect
after the decision on the requisition
which was by then received from the
Income-Tax Officer under
65 Section 132A of the Income Tax Act.
First respondent (original complainant)
preferred a revision application to the

109
 High Court of Kerala questioning the
correctness of the decision of the
learned Magistrate and the claim to
constitutional immunity of the accused
5 from search and seizure of books,
documents, etc. directed with a view to
collecting evidence against him, being
violative of Article 20(3) of the
Constitution was canvassed before the
10 Court. The High Court after an
exhaustive review of the decisions of
this Court as well as those bearing on
the Fifth Amendment to the American
Constitution held that the provisions
15 relating to search contained in
Section 93(1) of the Criminal Procedure
Code, 1973, are not hit by
Article 20(3) of the Constitution.
2. Section 91 confers power on the
20 Court or an officer in charge of a police
station to issue a summons or written
order as the case may be, to any person
in whose possession or power a
document, the production of which the
25 Court or the officer considers necessary
or desirable for the purposes of any
investigation , inquiry, trial or other
proceeding under the Code,
Section 93 confers power on the Court
30 to issue search warrant under three
different situations.
Sections 91 and 93, so for as they are
relevant, read as under :
91. (1) Whenever any Court or any officer
35 in charge of a police station considers that
the production of any document or other
thing is necessary or desirable for the
purposes of any investigation, inquiry, trial
or other proceeding under this Code by or
40 before such Court or officer, such Court
may issue a summons, or such officer a
written order, to the person in Whose
possession or power such document or thing
is believed to be, requiring him to attend
45 and produce it, or to produce it, at the time
and place stated in the summons or order."
93. (1)(a) Where any Court has reason to
believe that a person to whom a summons
or order under Section 91 or a requisition
50 under Sub-section (1) of Section 92 has
been, or might, be, addressed, will not or
would not produce the document or thing as
required by such summons or requisition, or
(b)where such document or thing is not
55 known to the Court to be in the possession
of any person, or
(c) where the Court considers that the
purposes of any inquiry, trial or other
proceeding under this Code will be served
60 by a general search or inspection, it may
issue a search-warrant; and the person to
whom such warrant is directed, may search
or inspect in accordance therewith and the
provisions hereinafter contained.
65 In exercise of the power conferred by
Section 91 a summons can be issued by
the Court to a person in whose
possession or power any document or
other thing considered necessary or
70 desirable for the purpose of any
investigation, inquiry, trial or other
proceeding under the Code calling upon
him to produce the document or thing at
the time and place to be mentioned in
75 the summons. On the advent of the
Constitution, and especially in view of
the provision contained in Article 20(3),
Courts were faced with a problem
whether the person referred to in
80 Section 91(1)of the Code (Section 94 of
old Code) would include an accused. In
other words, the question was whether a
summons can be addressed to the
accused calling upon him to produce
85 any document which may be in his
possession or power and which is
necessary or desirable for the purpose of
an investigation, inquiry, trial, etc. in
which such person was an accused
110
 person. The wider question that was
raised soon after the enforcement of the
Constitution was whether search of the
premises occupied or in possession of a
5 person accused of an offence or seizure
of anything therefrom would violate the
immunity from self-incrimination
enacted in Article 20(3). In M.P. Sharma
and Ors. v. Statish Chandra, District
10 Magistrate, Delhi and Ors.
1978(2)ELT287(SC) the contention put
forth was that a search to obtain
document for investigation into an
offence is a compulsory procuring of
15 incriminatory evidence from the accused
himself and is, therefore, hit by
Article 20(3) as unconstitutional and
illegal. A specific reference was made to
Section 94 and 96 of the Criminal
20 Procedure Code, 1898 ('old Code' (for
short), both of which are re-enacted in
almost identical language as
Sections 91 and 93 in the new Code, in
support of the submission that a seizure
25 of documents on search is in the
contemplation of law a compelled
production of documents. A in Article 20(3). In this case there was
Constitution Bench of 8 judges of this
Court unanimously negatived this
30 contention observing :
A power of search and seizure is in any system
of jurisprudence an overriding power of the
State for the protection of social security and
that power is necessarily regulated by law.
35 When the Constitution makers have thought fit
not to subject such regulation to constitutional
limitations by recognition of a fundamental
right to privacy, analogous to the American
Fourth Amendment, we have no justification to
40 import it, into a totally different fundamental
right, by some process of strained
construction. Nor is it legitimate to assume
that the constitutional protection under
Article 20(3) would be defeated by the
45 statutory provisions for searches.
It was concluded that a search under the
enabling provisions of the Criminal
Procedure Code cannot be challenged as
illegal on the ground of violation of
50 Article 20(3). It must be made clear that
the question whether there is any
demerit of compulsion in issuing a
summons to a person accused of an
offence under Section 94 (old)
55 Section 91(new) to produce a document
or thing in his possession Or power
considered necessary or desirable for
any inquiry, investigation or trial under
the CrPC was kept open. In other words,
60 the question whether the expression
'person' in Section 94 (old)
Section 91 (new) would comprehend a
person accused of an offence was left
open.
65 In The State of Bombay v. Kathi Kalu
Oghad and Ors. 1961CriLJ856 a
question arose whether obtaining
specimen hand writing or thumb
impression of the accused would
70 contravene the constitutional guarantee
some controversy about certain
observations in M.P. Sharma's case
(supra) and, therefore, the matter was
75 heard by a Bench of 11 Judges. Two
opinions were handed down, one by
Chief Justice Sinha for himself and 7
brother judges, and another by Das
Gupta, J. for himself and 2 other
80 colleague. In Sinha, CJ's opinion, the
observation in M.P. Sharma's case
(supra) that Section 139 of the Evidence
Act has no bearing on the connotation of
the word 'witness' is not entirely well-
85 founded in law. Immunity from self-
incrimination as re-enacted in
Article 20(3) was held to mean
conveying information based upon the
personal knowledge of the person giving
90 the information and could not include
merely the mechanical process of
111
 producing documents in court which
may throw a light on any of the points in
controversy, but which do not contain
any statement of the accused based on
5 his personal knowledge. It was
concluded that to be a witness is not
equivalent to furnishing evidence in its
widest significance; that is to say, as
including not merely making of oral or
10 written statement but also production of
document or giving materials which
may be relevant at trial to determine the
innocence or guilt of the accused.
What was kept open in Sharma's case
15 (supra) whether a person accused of an
offence could be served with a summons
to produce documents' was decided
when it was observed that immunity
from self-incrimination would not
20 comprehend the mechanical process of
producing documents in court which
may throw a light on any of the points in
controversy but which do not contain a
statement of the accused based on his
25 personal knowledge.
The matter again came up before a
Constitution Bench of this Court in
Shyamlal Mohanlal v. State of Gujarat
1965CriLJ256 .In that case appellant
30 Shyamlal Mohanlal was a licensed
money-lender and according to the
provisions of the relevant Money
Lending Act and Rules he was under an
obligation to maintain books. He was
35 prosecuted for failing to maintain books
in accordance with the provisions of the
Act and the Rules. The police prosecutor
incharge of the case on behalf of the
prosecution presented an application
40 requesting the Court to order the
appellant Shyamlal Mohanlal to produce
daily book and ledger for a certain year.
Presumably it was a request to issue
summons as contemplated by
45 Section 94 of the old Code. The learned
Magistrate rejected the request on the
ground that in so doing the guarantee of
immunity from self-incrimination would
be violated. The matter ultimately came
50 to this Court and the question that was
pat in forefront before the Court was
whether the expression 'person' in
Section 94(1) which is the same as
Section 91(1) of the new Code,
55 comprehends within its sweep a person
accused of an offence and if it does,
whether an issue of summons to produce
a document in his possession or power
would violate the immunity against self-
60 incrimination guaranteed by
Article 20(3). The majority opinion
handed down by Sikri, J. ruled that
Section 94(1) upon its true construction
does not apply to an accused person.
65 While recording this opinion there is no
reference to the decision of the larger
Bench in Kathi Kalu Oghad's case
(supra). Shah, J. in his dissenting
judgment referred to the observation that
70 the accused may have documentary
evidence in his possession which may
throw Some light on the controversy and
if it is a document which is not his
statement conveying his personal
75 knowledge relating to the charge against
him, he may be called upon to produce
it. Proceeding further it was observed
that Article 20(3) would be no bar to the
summons being issued to a person
80 accused of an offence to produce a thing
or document except in the circumstances
herein above mentioned. Whatever that
may be, it is indisputable that according
to the majority opinion the expression
85 'person' in Section 91(1) (new Code)
does not take within its sweep a person
accused of an offence which would
mean that a summons issued to an
accused person to produce a thing or
90 document considered necessary or
desirable for the purpose of an
investigation, inquiry or trial would
112
 imply compulsion and the document or
thing so produced would be compelled
testimony and would be violative of the
constitutional immunity against self-
5 incrimination.
There appears to be some conflict
between the observations in M. P.
Sharma's case (supra) as reconsidered in
Kothi Kala Oghad's case (supra) and the
10 one in the case of Shyamlal Mohanlal
(supra). However, as this case is not
directly relatable to a summons issued
under Section 91(1), we do not consider
it necessary to refer the matter to a
15 larger Bench to resolve the conflict.
In view of the decision in Shyamlal
Mohanlal's case (supra) one must
proceed on the basis that a summons to
produce a thing or document as
20 contemplated by Section 91(1) cannot
be issued to a person accused of an
offence calling upon him to produce
document of thing considered necessary
or desirable for the purpose of an
25 investigation, inquiry, trial or other
proceeding under the CrPC'
If summons as hereinbefore discussed
cannot be issued to an accused person
under Section 91(1), ipso facto a search
30 warrant contemplated by
Section 93(1)(a) cannot be issued by the
Court for the obvious reason that it can
only be issued where the Court could
have issued a summons but would not
35 issue the same under the apprehension
that the person to whom Such summons
is issued Will not or would not produce
the thing as required by such summons
or requisition. A search warrant under
40 Section 93(1)(a) could only be issued
where a Summons could have been
issued under Section 91(1) but the same
would not be issued oh an apprehension
that the person) to whom the summons
45 is directed would not comply with the
same and, therefore, in order to obtain
the document or thing to produce which
the summons was to be issued, a search
warrant may be issued under
50 Section 93(1)(a).
Section 93, however, also envisages
situations other than one contemplated
by Section 93(1)(a) for issuance of a
search warrant It must be made
55 distinctly clear that the present search
warrant is not issued under
Section 93(1)(a).
Section 93(1)(b) comprehends a
situation where a search warrant may be
60 issued to procure a document or thing
not known to the Court to be in the
possession of any person. In other
words, a general search warrant may be
issued to procure the document or thing
65 and it can be recovered from any person
who may be ultimately found in
possession of it and it was not known to
the Court that the person from whose
possession it was found was in
70 possession of it. In the present case the
search warrant was to be executed at the
office of the Sabha and it can be said
that office bearers of the Sabha were the
persons who were in possession of the
75 documents in respect of which the
search warrant was issued. Therefore,
Clause (b) of Section 93(1) would not be
attracted.
Section 93(1)(c) of the new Code
80 comprehends a situation where the
Court may issue a search warrant when
it considers that the purpose of an
inquiry, trial or other proceeding under
the Code will be served by a general
85 search or inspection to search, seize and
produce the documents mentioned in the
list. When such a general search warrant
is issued, in execution of it the premises
even in possession of the accused can be
113
 searched and documents found therein
can be seized irrespective of the fact that
the documents may contain some
statement made by the accused upon his
5 personal knowledge and which when
proved may have the tendency to
incriminate the accused. However, such
a search and seizure pursuant to a search
warrant issued under
10 Section 93(1)(c) will not have even the
remotest tendency to compel the
accused to incriminate himself. He is
expected to do nothing. He is not
required to participate in the search. He
15 may remain a passive spectator. He may
even remain absent Search can be
conducted under the authority of such
warrant in the presence of the accused.
Merely because he is occupying the
20 premises which is to be searched under
the authority of the search warrant it
cannot even remotely be said that by
such search and consequent seizure of
documents including the documents
25 which may contain statements
attributable to the personal knowledge
of the accused and which may have
tendency to incriminate him, would
violate the constitutional guarantee
30 against self-incrimination because he is
not compelled to do anything. A passive
submission to search cannot be styled as
a compulsion on the accuses to submit
to search and if anything is recovered
35 during search which may provide
incriminating evidence against the
accused it cannot be styled as compelled
testimony, This is too obvious to need
any precedent in support. The immunity
40 against self-crimination extends to any
incriminating evidence which the
accused may be compelled to give. It
does not extend to cover I such situation
as where evidence which may have
45 tendency to incriminate the accused is
being collected without in any manner
compelling him or asking him to be a
party to the collection of the evidence.
Search of the premises occupied by the
50 accused without the accused being
compelled to be a party to such search
would not be violative of the
constitutional guarantee enshrined in
Article 20(3).
55 It was, however, urged that
Section 93(1)(c) must be read in the
context of Section 93(1)(b) and it would
mean that where documents are known
to be at certain, place; and in
60 possession, of a certain person any
general search warrant as contemplated
by Section 93(1)(c) will have to be ruled
out because in such a situation
Section 93(1)(a)alone would be
65 attracted. Section 93(1)(b) comprehends
a situation where the Court issues a
search warrant in respect of a document
or a thing to be recovered from a certain
place but it is not known to the Court
70 whether that document or thing is, in
possession of any particular; person.
Under Clause (b) there is a definite
allegation to recover certain document
or thing from a certain specific place but
75 the Court is unaware of the fact whether
that document or thing or the place is in
possession of a particular person.
Section 93(1)(c) comprehends a
situation where a search warrant can be
80 issued as the Court is unaware of not
only the person but even the place where
the documents may be found and that a
general search is necessary. One cannot,
therefore, cut down the power of the
85 Court under Section93(1)(c) by
importing into it some of the
requirements of Section 93(1)(b). No
canon of construction would permit such
an erosion of power of the Court to issue
90 a general search warrant. It also
comprehends not merely a general
search but even an inspection meaning
thereby inspection of a place and a
114
 general search thereof and seizure of
documents or things which the Court
considers necessary or desirable for the
purpose of an investigation, inquiry, trial
5 or other proceeding under the Code. The
High Court accordingly sustained the
general search warrant in, this case
under Section 93(1)(c).
Turning to the facts of this case it was
10 contended that the order of the
Magistrate clearly disclosed an utter
non-application of mind and a mere
mechanical disposal of the application
before the Court. Undoubtedly the order
15 is of a laconic nature. But then there are
certain aspects of the case which cannot
be overlooked before this Court would
interfere in such an interlocutory order.
1he appellant and his co-accused are
20 office bearers of a public institution
styled as H.M.D.P. Sabha. We were
informed at the hearing of this petition
that this Sabha is a public institution
engaged in the activity of running
25 educational institutions and supporting
objects or activities of a general
charitable nature. When the first
complaint was filed, the allegation
therein was that criminal breach of trust
30 in respect of funds of the public
institution has been committed by the
office bearers thereof. A search warrant
was issued but it was quashed by the
Kerala High Court. Thereafter another
35 complaint was filed making sortie more
serious allegations and a search warrant
75
was sought. Now, this search warrant
was being issued to conduct search of
the premises used as office of an
40 institution. The place will be in
possession of the institution. The office
bearers of the Sabha are accused of an
offence. Documents and books of
accounts of the institution are required
45 for the purpose of the trial against the
office bearers of the institution. The
office premises could not be said to be
in possession of any individual accused
but stricto sensu it would be in
50 possession of the institution. Books of
accounts and other documents of the
institution could not be said to be in
personal custody or possession of the
office bearers of the institution but they
55 are in possession of the institution and
are lying in the office of the institution.
A search of such a public place under
the authority of a general search warrant
can easily be sustained under
60 Section 93(1)(c). If the order of the
learned Magistrate is construed to mean
this, there is no illegality committed in
issuing a search warrant. Of course,
issuance of a search warrant is a serious
65 matter and it would be advisable not to
dispose of an application for search
warrant in a mechanical way by a
laconic order. A clear application of
mind by the learned Magistrate must be
70 discernible in the order granting the
search warrant. Having said this, we see
no justification for interfering with the
order of the High Court in this case.
115
 Vikas vs. State Of Rajasthan

(2014) 3 SCC 321

Objective

1. To understand contours of non-bailable warrant and summons under the Code

2. Section 319 of the Code
3. Constitution as a Source of Criminal Law
4. Non Bailable Warrant in Criminal Case

Issue Involved:

The only question for consideration before us is whether in the circumstances of the case, the
attendance of the Appellant could have been best secured by issuing a summon simpliciter or
a bailable warrant instead of a non-bailable warrant in an application under Section 319 of
the Code of Criminal Procedure.

JUDGMENT 30 Sections 363, 366 and 376 of Indian Penal

This appeal is directed against the order
passed by the High Court of Judicature for
Rajasthan at Jaipur Bench, Jaipur in S.B.
5 Criminal Misc. Petition No. 1080 of 2013
dated 4th April, 2013, whereby the High
Court has dismissed the petition filed by
the Appellant under Section 482 of Code
of Criminal Procedure, 1973 (for short,
10 "the Code of Criminal Procedure ").
The Facts in brief are: The incident
occurred on 01.12.2011 at about 4.00 a.m.
PW-4, the complainant had lodged an FIR
before the Police Station at Singhana,
15 District Jhunjhunu to the effect that PW5,
the daughter of the Complainant, Sonu was
abducted by the accused persons namely
Deshram, Vikash, Ravi Kumar and Amit
Kumar. On the fateful day, PW-5, had
20 gone out of her house, when the Appellant
along with the other accused persons
hatched a conspiracy to forcibly abduct her
and in pursuance of the same abducted
PW-5.
25 The FIR was registered and after
completion of the investigation, the
investigating agency had filed a charge-
sheet against the accused, Amit Kumar
(A1) for the offences under
Code ("the Indian Penal Code" for short)
and Ravi Kumar (A2) and Ajit (A3) for the
offences under
Sections 363, 366(A) and120B of the
35 Indian Penal Code. The Trial Court,
thereafter, commenced with the trial
against A1, A2 and A3 respectively.
During the course of trial, the Trial Court
appreciated the evidence available on
40 record and framed charges against A1
under Sections 363, 366 and 376 and
under Sections 363, 366(A) and 120B of
the Indian Penal Code against A2.
Thereafter, PW4, filed an application
45 before the Trial Court under
Section 319 of the Code of Criminal
Procedure for the trial of the Appellant
along with the other accused persons for
having been involved in the commission of
50 the offence.
The Trial Court placing reliance on the
evidence produced in the course of the trial
has come to the conclusion that the court is
satisfied that the Appellant has committed
55 an offence for which the Appellant can be
tried along with the other accused persons
and therefore had taken cognizance for the
offences under
Sections 363, 366(A), 120B and376(2)(g)

116
 of the Indian Penal Code against the
Appellant herein and were summoned
through an issuance of a non-bailable
warrant.
5 Being aggrieved by the issuance of the
non-bailable warrant, the Appellant filed
an application before the Trial Court for
converting the non-bailable warrant into
bailable warrant. The Trial Court, by its
10 order dated 04.03.13 rejected the
application of the Appellant. Aggrieved by
the order of the Trial Court, the Appellant
had filed an appeal before the High Court.
The High Court after re-consideration
15 confirmed the order of the Trial Court.
The learned Counsel appearing for the
Appellant, would submit that the Trial
Court, to seek attendance of the Appellant
and the other accused persons had issued
20 non-bailable warrants instead of bailable
warrants which was not justified.
The only question for consideration before
us is whether in the circumstances of the
case, the attendance of the Appellant could
25 have been best secured by issuing a
summon simpliciter or a bailable warrant
instead of a non-bailable warrant in an
application under Section 319 of the Code
of Criminal Procedure.
30 A Perusal of Section 319 of the Code of
Criminal Procedure would clearly indicate
that on the objective satisfaction of the
court a person may be 'arrested' or
'summoned' as the circumstances of the
35 case may require if it appears from the
evidence that any such person not being
the accused has committed an offence for
which such person could be tried together
with the already arraigned accused
40 persons. The court should exercise judicial
discretion on a consideration of the totality
of the facts and circumstances of a given
case and in a manner where proper
procedures are followed that are
45 fundamental to the right of fair trial of the
accused. The section demands more
circumspection by the Trial Court while
exercising its powers since it confers an
extraordinary power and should be used by
50 the court very sparingly thereby ensuring
that principles of rule of law and basic
tenets of criminal law jurisprudence are
not vitiated.
The Constitution of India is the grundnorm
55 - the paramount law of the country. All
other laws derive their origin and are
supplementary and incidental to the
principles laid down in the Constitution.
Therefore, Criminal Law also derives its
60 source and sustenance from the
Constitution. The Constitution, on one
hand, guarantees the Right to Life and
Liberty to its citizens under Article 21 and
on the other hand imposes a duty and an
65 obligation on the Judges while discharging
their judicial function to protect and
promote the liberty of the citizens. The
issuance of non-bailable warrant in the
first instance without using the other tools
70 of summons and bailable warrant to secure
attendance of such a person would impair
the personal liberty guaranteed to every
citizen under the Constitution. This
position is settled in the case of Inder
75 Mohan Goswami 2007 12 SCC 1 and in
the case of Raghuvansh Dewanchand
Bhasin v. State of Maharashtra and Anr.
(2012) 9 SCC 791 wherein it has been
observed that personal liberty and the
80 interest of the State Civilized countries is
the most precious of all the human rights.
The American Declaration of
Independence 1776, French Declaration of
the Rights of Men and the Citizen 1789,
85 Universal Declaration of Human Rights
and the International Covenant of Civil
and Political Rights 1966 all speak with
one voice - liberty is the natural and
inalienable right of every human being.
90 Similarly, Article 21 of our Constitution
proclaims that no one shall be deprived of
his liberty except in accordance with the
procedure prescribed by law. The issuance
of non-bailable warrant involves
95 interference with personal liberty. Arrest
117
 and imprisonment means deprivation of
the most precious right of an individual.
Therefore, this demands that the courts
have to be extremely careful before issuing
5 non-bailable warrants.
In order to examine the reasoning of the
Trial Court, the case is to be understood in
its own facts and circumstances. In the
instant case, the Trial Court after
10 appreciating the evidence available had
reasonable satisfaction from the evidence
already collected during the trial that the
Appellant had committed an offence along
with the other accused who had undergone
15 the Trial and therefore issued a non-
bailable warrant to seek the attendance of
the Appellant-herein under an application
of Section 319 of the Code of Criminal
Procedure. To appreciate the present case,
20 it is pertinent to discuss the meaning of
'bailable offences' and 'non-bailable
offences' and the circumstances in which a
non-bailable warrant can be issued. In the
legislative history for the purposes of bail,
25 the term 'bailable' and 'non-bailable' are
mostly used to formally distinguish one of
the two classes of cases, viz. 'bailable'
offences in which bail may be claimed as a
right in every case whereas the question of
30 grant of bail in non-bailable offences to
such a person is left by the legislature in
the court's discretion to be exercised on a
consideration of the totality of the facts
and circumstances of a given case. The
35 discretion has, of course, to be a judicial
one informed by tradition methodized by
analogy, disciplined by system and Sub-
ordinated to the primordial necessity of
order in social life.
40 Another such instance of judicial
discretion is the issue of non-bailable
warrant in a complaint case under an
application of Section 319 of the Code of
Criminal Procedure. The power under
45 Section 319 of the Code of Criminal
Procedure being discretionary must be
exercised judiciously with extreme care
and caution. The court should properly
balance both personal liberty and societal
50 interest before issuing warrants. There
cannot be any straight-jacket formula for
issuance of warrants but as a general rule,
unless an accused is likely to tamper or
destroy the evidence or is likely to evade
55 the process of law, issuance of non-
bailable warrants should be avoided. The
conditions for the issuance of non-bailable
warrant are re-iterated in the case of Inder
Mohan Goswami (Supra) and in the case
60 of State of U.P. v. Poosu and Anr. 1976 3
SCC 1, wherein it is mentioned that Non-
bailable warrant should be issued to bring
a person to court when summons or
bailable warrants would be unlikely to
65 have the desired result. This could be
when firstly it is reasonable to believe that
the person will not voluntarily appear in
court; or secondly that the police
authorities are unable to find the person to
70 serve him with a summon and thirdly if it
is considered that the person could harm
someone if not placed into custody
immediately. In the absence of the
aforesaid reasons, the issue of non-bailable
75 warrant a fortiori to the application under
Section 319 of the Code of Criminal
Procedure would extinguish the very
purpose of existence of procedural laws
which preserve and protect the right of an
80 accused in a trial of a case. The court in all
circumstances in complaint cases at the
first instance should first prefer issuing
summons or bailable warrant failing which
a non-bailable warrant should be issued.
85 In view of the above, we modify the orders
passed by the Trial Court and confirmed
by the High Court, and direct that
summons be issued against the Appellant
for his appearance instead of non-bailable
90 warrants which were ordered to be issued
against him.
118
 Ravi Prakash Singh @ Arvind Singh vs. State of Bihar
(2015) 1 MLJ (Crl) 594 (SC)
Objectives:
1. To discuss concept of bail
2. Bail u/s 167(2)
3. Bail if charge sheet not submitted in 90 days
4. Whether 90th day is calculated for purpose of counting 90 days.
JUDGMENT
Prafulla C. Pant, J.
This appeal is directed against the
judgment and order dated 24.12.2013
passed by the High Court of Judicature at
Patna in Criminal Miscellaneous No.
5 48019 of 2013 whereby said Court has
dismissed the petition Under Section 482of
the Code of Criminal Procedure, 1973 (for
short "the Code") and declined to interfere
with the order dated 22.10.2013, passed by
10 Sessions Judge, In-charge, Kaimur at
Bhabua in Bail Petition No. 542 of 2013,
and upheld the refusal to release the
Appellant on bail Under Section 167(2) of
the Code.
15 Brief facts of the case are that Appellant
Ravi Prakash Singh @ Arvind Singh
surrendered before Chief Judicial
Magistrate, Kaimur on 5.7.2013 in
connection with Crime No. 89 of 2013,
20 registered at Police Station, Chainpur,
relating to offences punishable Under
Section 302 read with Section 34 and
Section 120B of the Indian Penal Code and
Under Section 27 of Arms Act. He was
25 remanded to judicial custody till
19.7.2013. His remand was extended
Under Section 167 of the Code from time
to time, and the last remand under said
provision was granted till 3.10.2013. On
30 3.10.2013, the Appellant moved an
application Under Section 167(2) of the
Code for his release on the ground that the
charge sheet has not been filed. On the
same day, i.e., 3.10.2013, it was endorsed
35 in the order sheet by the Chief Judicial
Magistrate that as per report of the clerk of
the Court, charge sheet has already been
received, as such, the bail application
moved Under Section 167(2) of the Code
40 was rejected by the Magistrate on the very
day and further remand order was passed
Under Section 209 of the Code.
Endorsement "seen" was also made by the
Magistrate on 3.10.2013 on the charge-
45 sheet.
On 22.10.2013, the case was committed to
the Court of Sessions Judge. The applicant
moved bail application No. 542 of 2013
50 before the Sessions Judge, Kaimur at
Bhabua seeking bail on the ground that he
was entitled to be released on bail Under
Section 167(2) of the Code. He further
pleaded that the Chief Judicial Magistrate
55 has erred in law in rejecting his bail
application on said ground. However, the
In-charge Sessions Judge, who disposed of
the above bail application, also opined that
since the charge sheet had already been
60 submitted, as such, the Appellant was not
entitled to bail on the ground that charge-
sheet was not received within time.
On this, Appellant Ravi Prakash Singh @
65 Arvind Singh appears to have moved a
petition Under Section 482 of the Code
before the High Court of Judicature at
Patna, praying that order passed by the
Sessions Judge, as above, and the one
70 passed by the Magistrate be quashed. But
the High Court also took the view that
since the charge sheet had already been
filed within the period of ninety days, as
such, it did not find any error in the orders
75 passed by the courts below.
Sub-section (2) of Section 167 of the Code
reads as under:
167(2) The Magistrate to whom an accused
80 person is forwarded under this section may,
119
 whether he has or not jurisdiction to try the
case, from time to time, authorise the detention
of the accused in such custody as such
Magistrate thinks fit, for a term not exceeding
5 fifteen days in the whole; and if he has no 60 electronic video linkage, as the case may be.
jurisdiction to try the case or commit it for
trial, and considers further detention
unnecessary, he may order the accused to be
forwarded to a Magistrate having such
10 jurisdiction:
Provided that-
(a) The Magistrate may authorize the
detention of the accused person, otherwise
than in the custody of the police, beyond the
15 period of fifteen days, if he is satisfied that
adequate grounds exist for doing so, but no
Magistrate shall authorise the detention of the
accused person in custody under this
paragraph for a total period exceeding-
20 (i) Ninety days, where the investigation relates
to an offence punishable with death, 75 shall be entitled to be released on bail.
imprisonment for life or imprisonment for a
term of not less than ten years;
(ii) Sixty days, where the investigation relates
25 to any other offence, and, on the expiry of the
said period of ninety days, or sixty days, as the
case may be, the accused person shall be
released on bail if he is prepared to and does
furnish bail, and every person released on bail
30 under this Sub-section shall be deemed to be
so released under the provisions of Chapter
XXXIII for the purposes of that Chapter;
(b) No Magistrate shall authorize detention of
the accused in custody by the police under this
35 section unless the accused is produced before
him in person for the first time and
subsequently every time till the accused
remains in the custody of the police, but the
Magistrate may extend further detention in
40 judicial custody on production of the accused
either in person or through the medium of
electronic video linkage;
(c) No Magistrate of the second class, not 95 mentioned "seen" on 3.10.2013 and signed
specially empowered in this behalf by the high
45 Court, shall authorize detention in the custody
of the police.
Explanation I.-For the avoidance of doubts, it
is hereby declared that, notwithstanding the 100 Chief Judicial Magistrate that the charge
expiry of the period specified in paragraph (a),
50 the accused shall be detained in Custody so
long as he does not furnish bail.
Explanation II.-If any question arises whether
an accused person was produced before the
Magistrate as required under Clause (b), the
55 production of the accused person may be
proved by his signature on the order
authorizing detention or by the order certified
by the Magistrate as to production of the
accused person through the medium of
Provided further that in case of a woman
under eighteen years of age, the detention
shall be authorized to be in custody of a
remand home or recognized social institution."
65
Above Proviso (a) to Sub-section (2) of
Section 167 of the Code provides that the
Magistrate shall not authorize detention
of an accused in custody in which the
70 investigation relating to offence
punishable with death, imprisonment for
life or imprisonment for a term not less
than ten years and if the investigation not
completed within ninety days, the accused
Admittedly, the Appellant surrendered
before the Magistrate on 5.7.2013. It is
also not disputed that on 3.10.2013 the
Appellant moved an application for his
80 release on bail under proviso (a) to Sub-
section (2) of Section 167 of the Code.
However, the order sheet of the case
shows that there is endorsement of the
Magistrate on 3.10.2013 that the charge
85 sheet has already been received.
The charge sheet against the Appellant, in
the original record, shows that the
Investigating Officer signed it and
submitted the same on 30.9.2013. Though
90 the clerk concerned has not made any
endorsement as to when actually the
charge sheet was received, but there is
endorsement of the Chief Judicial
Magistrate which shows that he has
at the top of the first page of the charge
sheet. Order sheet of the court of the
Magistrate also corroborates that on
3.10.2013 the clerk concerned reported to
sheet had already been received.
It is argued on behalf of the learned senior
Counsel for the Appellant that the
Appellant should have been given benefit
105 of Section 167(2) of the Code. According
to him, it was 91st day of detention on
120
 3.10.2013. It is further contended by Mr.
Nagendra Rai, learned senior Counsel, that
even Sunday or holiday on ninetieth day
cannot deprive the benefit of proviso (a) to
5 Sub-section (2) of Section 167 of the
Code. In support of his arguments he
relied upon cases of Powell Nwawa
Ogechi v. The State (Delhi
Administration) 1986 (3) Crimes 577
10 and State of Maharashtra v. Sharan B.
Sarda 1983 (2) Crimes 254 (Short Note).
In Sharan B. Sarda (supra) single Judge
of Bombay High Court, and in Powel
Nwawa Ogechi (supra) the Division Bench
15 of Delhi High Court took the view that
even if last day for filing charge sheet is
holiday, the accused cannot be deprived of
benefit of Section 167(2) of the Code.
10. Contrary to this, in N. Nureya Reddy
20 and Anr. v. State of Orissa 1985 CRLJ
939 (Orissa), the Division Bench of Orissa
High Court, interpreting the provisions of
Section 167(2) of the Code read with
Section 10 of the General Clauses Act,
25 held that if ninetieth day is a holiday, filing
50
of charge sheet on the next day should be
treated sufficient compliance of filing of
charge sheet within a period of ninety days
and it cannot be said that provision
30 contained in Section 167(2) of the Code is
infringed.
In Chaganti Satyanarayana and
Ors. v. State of Andhra Pradesh (1986) 3
SCC 141, it has been held by this Court
35 that period of ninety days Under
Section 167(2) of the Code shall be
computed from the date of remand of the
accused and not from the date of his arrest
Under Section 57 of the Code. However,
40 in the present case, we have to see the
relevant date as the date when the accused
surrendered and remanded by the court.
For the reasons, as discussed above, in our
opinion, the High Court has not erred in
45 law in dismissing the petition Under
Section 482 of the Code, and upholding
the refusal of bail to Appellant prayed by
him Under Section 167(2) of the Code.
121
 Arnesh Kumar vs. State of Bihar and Anr
(2014) 8 SCC 273
Objectives:
1. To discuss Law on Arrest
2. Scope of Section 41 and Section 41 A of Code
3. Guidelines for Arrest
4. No automatic arrest u/s 498 A and cases of Dowry Prohibition
JUDGMENT
C.K. Prasad, J.
The Petitioner apprehends his arrest in a
case Under Section 498-A of the Indian
Penal Code, 1860 (hereinafter called as
Indian Penal Code) and Section 4 of the
5 Dowry Prohibition Act, 1961. The
maximum sentence provided Under
Section 498-A Indian Penal Code is
imprisonment for a term which may
extend to three years and fine whereas
10 the maximum sentence provided Under
Section 4 of the Dowry Prohibition Act
is two years and with fine.
Petitioner happens to be the husband of
Respondent No. 2 Sweta Kiran. The
15 marriage between them was solemnized
on 1st July, 2007. His attempt to secure
anticipatory bail has failed and hence he
has knocked the door of this Court by
way of this Special Leave Petition.
20 In sum and substance, allegation
levelled by the wife against the
Appellant is that demand of Rupees
eight lacs, a maruti car, an air-
conditioner, television set etc. was made
25 by her mother-in-law and father-in-law
and when this fact was brought to the
Appellant's notice, he supported his
mother and threatened to marry another
woman. It has been alleged that she was
30 driven out of the matrimonial home due
to non-fulfilment of the demand of
dowry. Denying these allegations, the
Appellant preferred an application for
anticipatory bail which was earlier
35 rejected by the learned Sessions Judge
and thereafter by the High Court.
There is phenomenal increase in
matrimonial disputes in recent years.
The institution of marriage is greatly
40 revered in this country. Section 498-A
of the Indian Penal Code was introduced
with avowed object to combat the
menace of harassment to a woman at the
hands of her husband and his relatives.
45 The fact that Section 498-A is a
cognizable and non-bailable offence has
lent it a dubious place of pride amongst
the provisions that are used as weapons
rather than shield by disgruntled wives.
50 The simplest way to harass is to get the
husband and his relatives arrested under
this provision. In a quite number of
cases, bed-ridden grand-fathers and
grand-mothers of the husbands, their
55 sisters living abroad for decades are
arrested. "Crime in India 2012
Statistics" published by National Crime
Records Bureau, Ministry of Home
Affairs shows arrest of 1,97,762 persons
60 all over India during the year 2012 for
offence Under Section 498-A of the
Indian Penal Code, 9.4% more than the
year 2011. Nearly a quarter of those
arrested under this provision in 2012
65 were women i.e. 47,951 which depicts
that mothers and sisters of the husbands
were liberally included in their arrest
net. Its share is 6% out of the total
persons arrested under the crimes
70 committed under Indian Penal Code. It
accounts for 4.5% of total crimes
122
 committed under different sections of
penal code, more than any other crimes
excepting theft and hurt. The rate of
charge-sheeting in cases Under Section
5 498A, Indian Penal Code is as high as
93.6%, while the conviction rate is only
15%, which is lowest across all heads.
As many as 3,72,706 cases are pending
trial of which on current estimate, nearly
10 3,17,000 are likely to result in acquittal.
Law Commissions, Police Commissions
and this Court in a large number of
judgments emphasized the need to
maintain a balance between individual
15 liberty and societal order while
exercising the power of arrest. Police
officers make arrest as they believe that
they possess the power to do so. As the
arrest curtails freedom, brings
20 humiliation and casts scars forever, we
feel differently. We believe that no
arrest should be made only because the
offence is non-bailable and cognizable
and therefore, lawful for the police
25 officers to do so. The existence of the
power to arrest is one thing, the
justification for the exercise of it is quite
another. Apart from power to arrest, the
police officers must be able to justify the
30 reasons thereof. No arrest can be made
in a routine manner on a mere allegation
of commission of an offence made
against a person. It would be prudent
and wise for a police officer that no
35 arrest is made without a reasonable
satisfaction reached after some
investigation as to the genuineness of
the allegation. Despite this legal
position, the Legislature did not find any
40 improvement. Numbers of arrest have
not decreased. Ultimately, the
Parliament had to intervene and on the
recommendation of the 177th Report of
the Law Commission submitted in the
45 year 2001, Section 41 of the Code of
Criminal Procedure (for short 'Code of
Criminal Procedure), in the present form
came to be enacted. It is interesting to
note that such a recommendation was
50 made by the Law Commission in its
152nd and 154th Report submitted as
back in the year 1994. The value of the
proportionality permeates the
amendment relating to arrest. As the
55 offence with which we are concerned in
the present appeal, provides for a
maximum punishment of imprisonment
which may extend to seven years and
fine, Section 41(1)(b), Code of Criminal
60 Procedure which is relevant for the
purpose reads as follows:
41. When police may arrest without
warrant.-(1) Any police officer may without
an order from a Magistrate and without a
65 warrant, arrest any person -
(a) x x x x x x
(b) against whom a reasonable complaint
has been made, or credible information has
been received, or a reasonable suspicion
70 exists that he has committed a cognizable
offence punishable with imprisonment for a
term which may be less than seven years or
which may extend to seven years whether
with or without fine, if the following
75 conditions are satisfied, namely:
(i) x x x x x
(ii) the police officer is satisfied that such
arrest is necessary -
(a) to prevent such person from committing
80 any further offence; or
(b) for proper investigation of the offence;
or
(c) to prevent such person from causing the
evidence of the offence to disappear or
85 tampering with such evidence in any
manner; or
(d) to prevent such person from making any
inducement, threat or promise to any person
acquainted with the facts of the case so as to
90 dissuade him from disclosing such facts to
the Court or to the police officer; or
123
 (e) as unless such person is arrested, his
presence in the Court whenever required
cannot be ensured, and the police officer
shall record while making such arrest, his
5 reasons in writing:
Provided that a police officer shall, in all
cases where the arrest of a person is not
required under the provisions of this Sub-
section, record the reasons in writing for
10 not making the arrest.
From a plain reading of the aforesaid
provision, it is evident that a person
accused of offence punishable with
imprisonment for a term which may be
15 less than seven years or which may
extend to seven years with or without
fine, cannot be arrested by the police
officer only on its satisfaction that such
person had committed the offence
20 punishable as aforesaid. Police officer
before arrest, in such cases has to be
further satisfied that such arrest is
necessary to prevent such person from
committing any further offence; or for
25 proper investigation of the case; or to
prevent the accused from causing the
evidence of the offence to disappear; or
tampering with such evidence in any
manner; or to prevent such person from
30 making any inducement, threat or
promise to a witness so as to dissuade
him from disclosing such facts to the
Court or the police officer; or unless
such accused person is arrested, his
35 presence in the court whenever required
cannot be ensured. These are the
conclusions, which one may reach based
on facts. Law mandates the police
officer to state the facts and record the
40 reasons in writing which led him to
come to a conclusion covered by any of
the provisions aforesaid, while making
such arrest. Law further requires the
police officers to record the reasons in
45 writing for not making the arrest. In pith
and core, the police office before arrest
must put a question to himself, why
arrest? Is it really required? What
purpose it will serve? What object it will
50 achieve? It is only after these questions
are addressed and one or the other
conditions as enumerated above is
satisfied, the power of arrest needs to be
exercised. In fine, before arrest first the
55 police officers should have reason to
believe on the basis of information and
material that the accused has committed
the offence. Apart from this, the police
officer has to be satisfied further that the
60 arrest is necessary for one or the more
purposes envisaged by Sub-clauses (a)
to (e) of Clause (1) of Section 41 of
Code of Criminal Procedure.
An accused arrested without warrant by
65 the police has the constitutional right
Under Article 22(2) of the Constitution
of India and Section 57, Code of
Criminal Procedure to be produced
before the Magistrate without
70 unnecessary delay and in no
circumstances beyond 24 hours
excluding the time necessary for the
journey. During the course of
investigation of a case, an accused can
75 be kept in detention beyond a period of
24 hours only when it is authorised by
the Magistrate in exercise of power
Under Section 167 Code of Criminal
Procedure. The power to authorise
80 detention is a very solemn function.
Before a Magistrate authorises detention
Under Section 167, Code of Criminal
Procedure, he has to be first satisfied
that the arrest made is legal and in
85 accordance with law and all the
constitutional rights of the person
arrested is satisfied. If the arrest effected
by the police officer does not satisfy the
requirements of Section 41 of the Code,
90 Magistrate is duty bound not to
authorise his further detention and
release the accused. In other words,
when an accused is produced before the
Magistrate, the police officer effecting
95 the arrest is required to furnish to the
Magistrate, the facts, reasons and its
conclusions for arrest and the Magistrate
in turn is to be satisfied that condition
124
 precedent for arrest Under Section 41
Code of Criminal Procedure has been
satisfied and it is only thereafter that he
will authorise the detention of an
5 accused. The Magistrate before
authorising detention will record its own
satisfaction, may be in brief but the said
satisfaction must reflect from its order.
It shall never be based upon the ipse
10 dixit of the police officer, for example,
in case the police officer considers the
arrest necessary to prevent such person
from committing any further offence or
for proper investigation of the case or
15 for preventing an accused from
tampering with evidence or making
inducement etc., the police officer shall
furnish to the Magistrate the facts, the
reasons and materials on the basis of
20 which the police officer had reached its
conclusion. Those shall be perused by
the Magistrate while authorising the
detention and only after recording its
satisfaction in writing that the
25 Magistrate will authorise the detention
of the accused. In fine, when a suspect is
arrested and produced before a
Magistrate for authorising detention, the
Magistrate has to address the question
30 whether specific reasons have been
recorded for arrest and if so, prima facie
those reasons are relevant and secondly
a reasonable conclusion could at all be
reached by the police officer that one or
35 the other conditions stated above are
attracted. To this limited extent the
Magistrate will make judicial scrutiny.
Another provision i.e. Section 41A Code
of Criminal Procedure aimed to avoid
40 unnecessary arrest or threat of arrest
looming large on accused requires to be
vitalised. Section 41A as inserted by
Section 6 of the Code of Criminal
Procedure (Amendment) Act, 2008 (Act
45 5 of 2009), which is relevant in the
context reads as follows:
41A. Notice of appearance before police
officer.-(1) The police officer shall, in all
cases where the arrest of a person is not
50 required under the provisions of Sub-section
(1) of Section 41, issue a notice directing
the person against whom a reasonable
complaint has been made, or credible
information has been received, or a
55 reasonable suspicion exists that he has
committed a cognizable offence, to appear
before him or at such other place as may be
specified in the notice.
(2) Where such a notice is issued to any
60 person, it shall be the duty of that person to
comply with the terms of the notice.
(3) Where such person complies and
continues to comply with the notice, he shall
not be arrested in respect of the offence
65 referred to in the notice unless, for reasons
to be recorded, the police officer is of the
opinion that he ought to be arrested.
(4) Where such person, at any time, fails to
comply with the terms of the notice or is
70 unwilling to identify himself, the police
officer may, subject to such orders as may
have been passed by a competent Court in
this behalf, arrest him for the offence
mentioned in the notice.
75
Aforesaid provision makes it clear that
in all cases where the arrest of a person
is not required Under Section 41(1),
Code of Criminal Procedure, the police
80 officer is required to issue notice
directing the accused to appear before
him at a specified place and time. Law
obliges such an accused to appear before
the police officer and it further mandates
85 that if such an accused complies with
the terms of notice he shall not be
arrested, unless for reasons to be
recorded, the police office is of the
opinion that the arrest is necessary. At
90 this stage also, the condition precedent
for arrest as envisaged Under Section 41
Code of Criminal Procedure has to be
complied and shall be subject to the
same scrutiny by the Magistrate as
95 aforesaid.
125
 We are of the opinion that if the
provisions of Section 41, Code of
Criminal Procedure which authorises the
police officer to arrest an accused
5 without an order from a Magistrate and
without a warrant are scrupulously
enforced, the wrong committed by the
police officers intentionally or
unwittingly would be reversed and the
10 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
15 diary all or most of the reasons
contained in Section 41 Code of
Criminal Procedure for effecting arrest
be discouraged and discontinued.
Our endeavour in this judgment is to
20 ensure that police officers do not arrest
accused unnecessarily and Magistrate do
not authorise detention casually and
mechanically. In order to ensure what
we have observed above, we give the
25 following direction:
(1) All the State Governments to instruct
its police officers not to automatically
arrest when a case Under Section 498-A
of the Indian Penal Code is registered
30 but to satisfy themselves about the
necessity for arrest under the parameters
laid down above flowing from Section
41, Code of Criminal Procedure;
(2) All police officers be provided with
35 a check list containing specified sub-
clauses Under Section 41(1)(b)(ii);
(3) The police officer shall forward the
check list duly filed and furnish the
reasons and materials which
40 necessitated the arrest, while
forwarding/producing the accused
before the Magistrate for further
detention;
(4) The Magistrate while authorising
45 detention of the accused shall peruse the
report furnished by the police officer in
terms aforesaid and only after recording
its satisfaction, the Magistrate will
authorise detention;
50 (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
55 the Superintendent of police of the
district for the reasons to be recorded in
writing;
(6) Notice of appearance in terms of
Section 41A of Code of Criminal
60 Procedure be served on the accused
within two weeks from the date of
institution of the case, which may be
extended by the Superintendent of
Police of the District for the reasons to
65 be recorded in writing;
(7) Failure to comply with the directions
aforesaid shall apart from rendering the
police officers concerned liable for
70 departmental action, they shall also be
liable to be punished for contempt of
court to be instituted before High Court
having territorial jurisdiction.
(8) Authorising detention without
75 recording reasons as aforesaid by the
judicial Magistrate concerned shall be
liable for departmental action by the
appropriate High Court.
We hasten to add that the directions
80 aforesaid shall not only apply to the
cases Under Section 498-A of the Indian
Penal Code or Section 4 of the Dowry
Prohibition Act, the case in hand, but
also such cases where offence is
85 punishable with imprisonment for a term
which may be less than seven years or
which may extend to seven years;
whether with or without fine
126
 .Govindaraju Alias Govinda vs. State By Sriramapuram Police Station and Anr
(2012) 4 SCC 722
Objectives:
1. To discuss scope of appeal under Criminal Cases
2. Appeal against Conviction when lie
3. Appeal against acquittal when lie
4. Appeal in pitty cases
JUDGMENT
Swatanter Kumar, J.
The present appeal is directed against
the judgment of conviction and order of
sentence recorded by the High Court of
Karnataka at Bangalore dated 29th
5 November, 2006, setting aside the
judgment of the trial court dated 9th
March, 2000 acquitting all the accused
for an offence under Section 302 read
with Section 34 of the Indian Penal
10 Code, 1860. In short the case of the
prosecution is that on 7th December,
1998, Sub-Inspector of Police (Law &
Order) Shri Veerabadhraiah of the
Sriramapuram Police Station, PW1, was
15 proceeding towards his house from duty
on his motor cycle at about 10.45 p.m.
When he reached the 6th Cross Road,
7th Main, he saw three persons chasing
another person and when they reached
20 near VNR Bar, the person who was
being chased fell on the road. One of the
three person who were chasing the
victim, stabbed him on his chest thrice
with knife. Thereafter, the other two
25 persons also stabbed him on the chest.
When the said PW1 was about to reach
the spot, he saw the accused
Govindaraju @ Govinda addressing one
of the other two persons as Govardhan
30 and telling them that the Police was
coming and asked them to run away,
whereafter they ran away from the spot.
An attempt was made by PW-1 to
follow them but the same proved to be
35 in vain because they went into a
Conservancy and disappeared into
darkness. After this unsuccessful
attempt, PW1 returned to the spot and
saw the victim bleeding with injuries.
40 With the help of a Constable, he shifted
the victim to K.C. General Hospital,
Malleswaram, where the victim was
declared dead by the doctors. Upon
search of the body of the deceased, his
45 identity card was found on which his
name and address had been given. The
name of the deceased was found to be
Santhanam. Thereafter, PW1 went back
to the Police Station and lodged a
50 complaint, Ex.P1, on the basis of which
FIR Ex.P2 was recorded by PW11,
another Police Officer, who then
investigated the case. The Investigating
Officer, during the course of
55 investigation, examined a number of
witnesses, collected blood soaked earth
and got recovered the knives with which
the deceased was assaulted. Having
recovered the weapons of crime, the
60 Investigating Officer had sent these
weapons for examination to the Forensic
Science Laboratory (FSL) at Bangalore.
However, that Laboratory had, without
giving any detailed report, vide its letter
65 dated 28th October, 1999, Ex.P15,
informed the Commissioner of Police,
Malleswaram, Bangalore, that the stains
specimen cuttings/scraping was referred
to Serologist at Calcutta for its origin
70 and grouping results, which on receipt
127
 would be dispatched from that office. In
all, eight articles were sent to the FSL
including the blood clots, one pant, one
kacha, one pair of socks and one chaku.
5 No efforts were made to produce and
prove the final report from the FSL,
Calcutta and also no witness even
examined from the FSL. It appears from
the record that the weapons of offence
10 were not sent to the FSL, Bangalore at
all.
After completing the investigation,
PW11 filed the charge- sheet before the
Court of competent jurisdiction. The
15 matter was committed to the Court of
Sessions. The two accused faced the
trial as the third accused was absconding
and was not traceable at the time of
filing of the charge-sheet or even
20 subsequent thereto. The learned
Sessions Judge had framed the charge
against the accused under Section 302
read with Section 34 Indian Penal Code
vide its order dated 20th November,
25 1999. The learned trial Court, vide its
judgment dated 9th March, 2000,
acquitted both the Appellant namely,
Govindaraju @ Govinda and Govardhan
@ Gunda.
30 Against the said judgment of acquittal
passed by the learned trial court, the
State preferred a leave to appeal before
the High Court. The High Court
declined the leave to appeal against the
35 judgment of acquittal in favor of
Govardhan @ Gunda and granted the
leave to appeal against Govindaraju @
Govinda vide its order dated 3rd
November, 2000. Finally, as noticed
40 above, the High Court vide its judgment
dated 29th November, 2006 found
Govindaraju guilty of the offence under
Section 302 Indian Penal Code and
sentenced him to civil imprisonment for
45 life and fine of Rs. 10,000/- in default to
undergo rigorous imprisonment for a
period of one year. Aggrieved from the
said judgment of the High Court, the
accused Govindaraju @ Govinda has
50 filed the present appeal.
Points on which reversal of the
judgment of acquittal by the High Court
is challenged:
(i) The judgment of the High Court is
55 contrary to the settled principles of
criminal jurisprudence governing the
conversion of order of acquittal into one
that of conviction.
(ii) The judgment of the High Court
60 suffers from palpable errors of law and
appreciation of evidence. All the
witnesses had turned hostile and the
conviction of the Appellant could not be
based upon the sole testimony of a
65 Police Officer, who himself was an
interested witness. It is contended that
the Appellant Govindaraju @ Govinda
has been falsely implicated in the case.
Keeping in view the submissions made
70 by Learned Counsel appearing for the
Appellant and the State, now we may
proceed to examine the first contention.
In the present case, the trial Court had
acquitted both the accused. As already
75 noticed, against the judgment of
acquittal, the State had preferred
application for leave to appeal. The
leave in the case of the present
Appellant, Govindaraju was granted by
80 the High Court while it was refused in
the case of the other accused,
Govardhan. Thus, the judgment of
acquittal in favor of Govardhan attained
finality. We have to examine whether
85 the High Court was justified in over
turning the judgment of acquittal in
favor of the Appellant passed by the
Trial court on merits of the case. The
128
 law is well-settled that an appeal against
an order of acquittal is also an appeal
under the Code of Criminal Procedure,
1973 (for short 'Code of Criminal
5 Procedure.') and an appellate Court has
every power to re-appreciate, review
and reconsider the evidence before it, as
a whole. It is no doubt true that there is
presumption of innocence in favor of the
10 accused and that presumption is
reinforced by an order of acquittal
recorded by the trial Court. But that is
the end of the matter. It is for the
Appellate Court to keep in view the
15 relevant principles of law to re-
appreciate and reweigh the evidence as a
whole and to come to its own conclusion
on such evidence, in consonance with
the principles of criminal jurisprudence.
20 (Ref. Girja Prasad (Dead) By L.Rs. v.
State of M.P. (2007) 7 SCC 625).
Besides the rules regarding appreciation
of evidence, the Court has to keep in
mind certain significant principles of
25 law under the Indian Criminal
Jurisprudence, i.e. right to fair trial and
presumption of innocence, which are the
twin essentials of administration of
criminal justice. A person is presumed
30 to be innocent till proven guilty and
once held to be not guilty of a criminal
charge, he enjoys the benefits of such
presumption which could be interfered
with by the courts only for compelling
35 reasons and not merely because another
view was possible on appreciation of
evidence. The element of perversity
should be traceable in the findings
recorded by the Court, either of law or
40 of appreciation of evidence. The
Legislature in its wisdom, unlike an
appeal by an accused in the case of
conviction, introduced the concept of
leave to appeal in terms of Section 378
45 Code of Criminal Procedure. This is an
indication that appeal from acquittal is
placed at a somewhat different footing
than a normal appeal. But once leave is
granted, then there is hardly any
50 difference between a normal appeal and
an appeal against acquittal. The concept
of leave to appeal under Section 378
Code of Criminal Procedure. has been
introduced as an additional stage
55 between the order of acquittal and
consideration of the judgment by the
appellate Court on merits as in the case
of a regular appeal. Sub-section (3) of
Section 378 clearly provides that no
60 appeal to the High Court under Sub-
sections (1) or (2) shall be entertained
except with the leave of the High Court.
This legislative intent of attaching a
definite value to the judgment of
65 acquittal cannot be ignored by the
Courts. Under the scheme of the Code
of Criminal Procedure., acquittal confers
rights on an accused that of a free
citizen. A benefit that has accrued to an
70 accused by the judgment of acquittal can
be taken away and he can be convicted
on appeal, only when the judgment of
the trial court is perverse on facts or law.
Upon examination of the evidence
75 before it, the Appellate Court should be
fully convinced that the findings
returned by the trial court are really
erroneous and contrary to the settled
principles of criminal law. In the case of
80 State of Rajasthan v. Shera Ram alias
Vishnu Dutta
MANU/SC/1428/2011MANU/SC/1428/
2011 : (2012) 1 SCC 602, a Bench of
this Court, of which one of us
85 (Swatanter Kumar, J.) was a member,
took the view that there may be no grave
distinction between an appeal against
acquittal and an appeal against
conviction but the Court has to keep in
90 mind the value of the presumption of
innocence in favor of the accused duly
endorsed by order of the Court, while
the Court exercises its appellate
129
 jurisdiction. In this very case, the Court
also examined various judgments of this
Court dealing with the principles which
may guide the exercise of jurisdiction by
5 the Appellate Court in an appeal against
a judgment of acquittal. We may
usefully refer to the following
paragraphs of that judgment:
8. The penal laws in India are
10 primarily based upon certain
fundamental procedural values,
which are right to fair trial and
presumption of innocence. A person
is presumed to be innocent till
15 proven guilty and once held to be
not guilty of a criminal charge, he
enjoys the benefit of such
presumption which could be
interfered with only for valid and
20 proper reasons. An appeal against
acquittal has always been
differentiated from a normal appeal
against conviction. Wherever there
is perversity of facts and/or law
25 appearing in the judgment, the
appellate court would be within its
jurisdiction to interfere with the
judgment of acquittal, but otherwise
such interference is not called for.
30 We may refer to a recent judgment of
this Court in the case of State of
Rajasthan, Through Secretary, Home
Department v. Abdul Mannan (2011) 8
SCC 65, wherein this Court discussed
35 the limitation upon the powers of the
appellate court to interfere with the
judgment of acquittal and reverse the
same.
This Court referred to its various
40 judgments and held as under:
As is evident from the above recorded
findings, the judgment of conviction
was converted to a judgment of acquittal
by the High Court. Thus, the first and
45 foremost question that we need to
consider is, in what circumstances this
Court should interfere with the judgment
of acquittal. Against an order of
acquittal, an appeal by the State is
50 maintainable to this Court only with the
leave of the Court. On the contrary, if
the judgment of acquittal passed by the
trial court is set aside by the High Court,
and the accused is sentenced to death, or
55 life imprisonment or imprisonment for
more than 10 years, then the right of
appeal of the accused is treated as an
absolute right subject to the provisions
of Articles 134(1)(a) and 134(1)(b) of
60 the Constitution of India and Section
379 of the Code of Criminal Procedure,
1973. In light of this, it is obvious that
an appeal against acquittal is considered
on slightly different parameters
65 compared to an ordinary appeal
preferred to this Court.
When an accused is acquitted of a
criminal charge, a right vests in him to
be a free citizen and this Court is very
70 cautious in taking away that right. The
presumption of innocence of the accused
is further strengthened by the fact of
acquittal of the accused under our
criminal jurisprudence. The courts have
75 held that if two views are possible on
the evidence adduced in the case, then
the one favorable to the accused, may be
adopted by the court. However, this
principle must be applied keeping in
80 view the facts and circumstances of a
case and the thumb rule is that whether
the prosecution has proved its case
beyond reasonable doubt. If the
prosecution has succeeded in
85 discharging its onus, and the error in
appreciation of evidence is apparent on
the face of the record then the court can
interfere in the judgment of acquittal to
ensure that the ends of justice are met.
130
 This is the linchpin around which the
administration of criminal justice
revolves.
5 It is a settled principle of criminal
jurisprudence that the burden of proof
lies on the prosecution and it has to
prove a charge beyond reasonable
doubt. The presumption of innocence
10 and the right to fair trial are twin
safeguards available to the accused
under our criminal justice system but
once the prosecution has proved its case
and the evidence led by the prosecution,
15 in conjunction with the chain of events
as are stated to have occurred, if, points
irresistibly to the conclusion that the
accused is guilty then the court can
interfere even with the judgment of
20 acquittal. The judgment of acquittal
might be based upon misappreciation of
evidence or apparent violation of settled
canons of criminal jurisprudence.
We may now refer to some judgments of
25 this Court on this issue. In State of M.P.
v. Bacchudas, the Court was concerned
with a case where the accused had been
found guilty of an offence punishable
under Section 304 Part II read with
30 Section 34 Indian Penal Code by the
trial court; but had been acquitted by the
High Court of Madhya Pradesh. The
appeal was dismissed by this Court,
stating that the Supreme Court's
35 interference was called for only when
there were substantial and compelling
reasons for doing so. After referring to
earlier judgments, this Court held as
under: (SCC pp. 138-39, paras 9-10)
40 9. There is no embargo on the appellate
court reviewing the evidence upon which an
order of acquittal is based. Generally, the
order of acquittal shall not be interfered
with because the presumption of innocence
45 of the accused is further strengthened by
acquittal. The golden thread which runs
through the web of administration of justice
in criminal cases is that if two views are
possible on the evidence adduced in the
50 case, one pointing to the guilt of the accused
and the other to his innocence, the view
which is favorable to the accused should be
adopted. The paramount consideration of
the court is to ensure that miscarriage of
55 justice is prevented. A miscarriage of justice
which may arise from acquittal of the guilty
is no less than from the conviction of an
innocent. In a case where admissible
evidence is ignored, a duty is cast upon the
60 appellate court to reappreciate the evidence
where the accused has been acquitted, for
the purpose of ascertaining as to whether
any of the accused really committed any
offence or not. (See Bhagwan Singh v. State
65 of M.P.) The principle to be followed by the
appellate court considering the appeal
against the judgment of acquittal is to
interfere only when there are compelling
and substantial reasons for doing so. If the
70 impugned judgment is clearly unreasonable
and relevant and convincing materials have
been unjustifiably eliminated in the process,
it is a compelling reason for interference.
These aspects were highlighted by this
75 Court in Shivaji Sahabrao Bobade v. State
of Maharashtra, Ramesh Babulal Doshi v.
State of Gujarat, Jaswant Singh v. State of
Haryana, Raj Kishore Jha v. State of Bihar,
State of Punjab v. Karnail Singh, State of
80 Punjab v. Phola Singh, Suchand Pal v.
Phani Pal and Sachchey Lal Tiwari v. State
of U.P.
The foregoing discussion yields the
following results: (1) an appellate court
85 has full power to review the evidence
upon which the order of acquittal is
founded; (2) the principles laid down in
Sheo Swarup case afford a correct guide
for the appellate court's approach to a
131
 case in disposing of such an appeal; and
(3) the different phraseology used in the
judgments of this Court, such as (i)
"substantial and compelling reasons",
5 (ii) "good and sufficiently cogent
reasons", and (iii) "strong reasons", are
not intended to curtail the undoubted
power of an appellate court in an appeal
against acquittal to review the entire
10 evidence and to come to its own
conclusion; but in doing so it should not
only consider every matter on record
having a bearing on the questions of fact
and the reasons given by the court below
15 in support of its order of acquittal in its
arriving at a conclusion on those facts,
but should also express those reasons in
its judgment, which lead it to hold that
the acquittal was not justified'.
20 Reference can also be usefully made to
the judgment of this Court in Suman
Sood v. State of Rajasthan, where this
Court reiterated with approval the
principles stated by the Court in earlier
25 cases, particularly, Chandrappa v. State
of Karnataka. Emphasizing that
expressions like "substantial and
compelling reasons", "good and
sufficient grounds", "very strong
30 circumstances", "distorted conclusions",
"glaring mistakes", etc. are not intended
to curtail the extensive powers of an
appellate court in an appeal against
acquittal, the Court stated that such
35 phraseologies are more in the nature of
"flourishes of language" to emphasize
the reluctance of an appellate court to
interfere with the acquittal. Thus, where
it is possible to take only one view i.e.
40 the prosecution evidence points to the
guilt of the accused and the judgment is
on the face of it perverse, then the Court
may interfere with an order of acquittal.
45 There is a very thin but a fine distinction
between an appeal against conviction on
the one hand and acquittal on the other.
The preponderance of judicial opinion
of this Court is that there is no
50 substantial difference between an
appeal against conviction and an appeal
against acquittal except that while
dealing with an appeal against acquittal
the Court keeps in view the position that
55 the presumption of innocence in favor of
the accused has been fortified by his
acquittal and if the view adopted by the
High Court is a reasonable one and the
conclusion reached by it had its grounds
60 well set out on the materials on record,
the acquittal may not be interfered with.
Thus, this fine distinction has to be kept
in mind by the Court while exercising its
appellate jurisdiction. The golden rule is
65 that the Court is obliged and it will not
abjure its duty to prevent miscarriage of
justice, where interference is imperative
and the ends of justice so require and it
is essential to appease the judicial
70 conscience.
Also, this Court had the occasion to
state the principles which may be taken
into consideration by the appellate court
while dealing with an appeal against
75 acquittal. There is no absolute restriction
in law to review and re-look the entire
evidence on which the order of acquittal
is founded. If, upon scrutiny, the
appellate court finds that the lower
80 court's decision is based on erroneous
views and against the settled position of
law then the said order of acquittal
should be set aside. (See State (Delhi
Administration) v. Laxman Kumar and
85 Ors. (1985) 4 SCC 476, Raj Kishore Jha
v. State of Bihar and Ors.: AIR 2003 SC
4664, Inspector of Police, Tamil Nadu v.
John David 2011 : JT 2011 (5) SC 1)
132
 To put it appropriately, we have to
examine, with reference to the present
case whether the impugned judgment of
acquittal recorded by the High Court
5 suffers from any legal infirmity or is
based upon erroneous appreciation of
evidence.
In our considered view, the impugned
judgment does not suffer from any legal
10 infirmity and, therefore, does not call for
any interference. In the normal course of
events, we are required not to interfere
with a judgment of acquittal.
The Court also took the view that the
15 Appellate Court cannot lose sight of the
fact that it must express its reason in the
judgment, which led it to hold that
acquittal is not justified. It was also held
by this Court that the Appellate Court
20 must also bear in mind the fact that the
trial court had the benefit of seeing the
witnesses in the witness box and the
presumption of innocence is not
weakened by the order of acquittal and
25 in such cases if two reasonable
conclusions can be reached on the basis
of the evidence on record, the Appellate
Court should not disturb the findings of
the trial court. [See C. Antony v. K.G.
30 Raghavan Nair (2003) 1 SCC 1; and
Bhim Singh Rup Singh v. State of
Maharashtra (1974) 3 SCC 762.
If we analyze the above principle
somewhat concisely, it is obvious that
35 the golden thread which runs through
the web of administration of justice in
criminal cases is that if two views are
possible on the evidence adduced in a
case, one pointing to the guilt of the
40 accused and other to his innocence, the
view which is favorable to the accused
should be adopted. There are no
jurisdictional limitations on the power of
the Appellate Court but it is to be
45 exercised with some circumspection.
The paramount consideration of the
Court should be to avoid miscarriage of
justice. A miscarriage of justice which
may arise from the acquittal of guilty is
50 no less than that from the conviction of
an innocent. If there is miscarriage of
justice from the acquittal, the higher
Court would examine the matter as a
Court of fact and appeal while
55 correcting the errors of law and in
appreciation of evidence as well. Then
the Appellate Court may even proceed
to record the judgment of guilt to meet
the ends of justice, if it is really called
60 for.
In the present case, the High Court, in
the very opening of its judgment,
noticed that the prosecution had
examined eleven witnesses, produced
65 fifteen documents and three material
objects. The witnesses of seizure had
turned hostile. PW4 and PW5 were
examined to establish the fact that the
knife was seized vide Exhibit P5 at the
70 instance of the Appellant. They also
turned hostile. PW6 and PW8 were
examined to establish the contents of
Exhibit P6, another knife that was seized
from the other accused, Govardhan.
75 Even they did not support the case of the
prosecution. PW7, the supplier at VNR
Bar and an eye-witness, PW9, Mr.
Thiruvengadam, the second eye-witness
and PW10, Mr. Sheshidhar, the third
80 eye-witness who were examined to
corroborate the evidence of PW1 openly
stated contrary to the case of the
prosecution and did not support the
version and statement of PW1. The trial
85 Court noticed a number of other
weaknesses in the case of the
prosecution, including the evidence of
PW1. It found that the statement of PW1
was not free of suspicion, particularly
90 when there was no evidence to
133
 corroborate even his statement. The
Court doubted the recovery and also the
manner in which the recovery was made
and sought to be proved before the
5 Court in face of the fact that all the
recovery witnesses had turned hostile
and had bluntly denied their presence
during the recovery of knives. The trial
court also, while examining the
10 statement of the doctor and the post-
mortem report, Ex.P9, returned the
finding that there were as many as ten
injuries found on the body of the
deceased and the opinion of the doctor
15 was that the death of the deceased was
due to shock and hemorrhage as a result
of stab injuries sustained and even the
medical evidence did not support the
case of the prosecution. The accused had
20 suffered certain injuries upon his hand
and fingers. Referring to these
observations, the trial court had returned
the finding of acquittal of both the
accused.
25 The judgment of the High Court, though
to some extent, reappreciates the
evidence but has not brought out as to
how the trial court's judgment was
perverse in law or in appreciation of
30 evidence or whether the trial court's
judgment suffered from certain
erroneous approach and was based on
conjectures and surmises in
contradistinction to facts proved by
35 evidence on record. A very vital
distinction which the Court has to keep
in mind while dealing with such appeals
against the order of acquittal is that
interference by the Court is justifiable
40 only when a clear distinction is kept
between perversity in appreciation of
evidence and merely the possibility of
another view. It may not be quite
appropriate for the High Court to merely
45 record that the judgment of the trial
court was perverse without specifically
dealing with the facets of perversity
relating to the issues of law and/or
appreciation of evidence, as otherwise
50 such observations of the High Court
may not be sustainable in law.
It is also not always necessary that
wherever the witness turned hostile, the
prosecution case must fail. Firstly, the
55 part of the statement of such hostile
witnesses that supports the case of the
prosecution can always be taken into
consideration. Secondly, where the sole
witness is an eye-witness who can give a
60 graphic account of the events which he
had witnessed, with some precision
cogently and if such a statement is
corroborated by other evidence,
documentary or otherwise, then such
65 statement in face of the hostile witness
can still be a ground for holding the
accused guilty of the crime that was
committed. The Court has to act with
greater caution and accept such evidence
70 with greater degree of care in order to
ensure that justice alone is done. The
evidence so considered should
unequivocally point towards the guilt of
the accused.
75 In the present case, on a cumulative
reading and appreciation of the entire
evidence on record, we are of the
considered view that the learned trial
Court had not fallen in error of law or
80 appreciation of evidence in accordance
with law. The High Court appears to
have interfered with the judgment of
acquittal only on the basis that 'there
was a possibility of another view'. The
85 prosecution must prove its case beyond
any reasonable doubt. Such is not the
burden on the accused. The High Court
has acted on certain legal and factual
presumptions which cannot be sustained
90 on the basis of the record before us and
the principle of laws afore-noticed.
134
For the reasons afore-stated, we allow 302 Indian Penal Code. He be set at
the present appeal acquitting the 5 liberty forthwith and his bail and surety
Appellant of the offence under Section bonds shall stand discharged.

135
 Jogendra Yadav vs. State of Bihar (2015) 3 MLJ (Crl) 448(SC)
Objectives
1. Discharge Petition when filed
2. To understand the scope of S. 227 and S. 319 of CrPC
JUDGMENT
S.A. Bobde, J.
1. This is an appeal by four persons who
have been added as accused Under
Section 319 of the Code of Criminal
Procedure, 1973 in Sessions Trial No.
5 446/2002 for an offence Under
Section 302 read with
Sections 149 and 323 of the Indian
Penal Code, 1860 and Section 27 of the
Arms Act, 1959. The trial is being held
10 in respect of the murder of one Saryug
Yadav. On 04.06.2000, FIR was lodged
by an informant Under
Sections 149, 302 and 323 of the Indian
Penal Code against 8 accused. A charge-
15 sheet was submitted on 23.04.2001 only
against four persons. Later on, a
supplementary charge-sheet was
submitted on 31.01.2003 by which one
Bhankhar Yadav was included. A final
20 form was submitted excluding the four
Appellants herein viz. Jogendra Yadav,
Kailash Yadav, Kusum Pahalwan,
Brijendra Yadav from the array of
parties. On 18.02.2003, the Magistrate
25 accepted the charge-sheet and the final
form while taking cognizance of the
offence. The case was committed to the
Court of Sessions.
In the course of the trial, the evidence of
30 the widow and two sons of the deceased
were recorded. On the basis of the
evidence the Additional Sessions Judge
on 05.02.2005 Under Section 319 of the
Code of Criminal Procedure issued
35 notice to the Appellants asking them to
show cause as to why they should not be
added as accused. After giving an
opportunity to the Appellants to file a
reply, the learned Additional Sessions
40 Judge summoned the Appellants as
accused for being added to the
proceedings. It is nobody's case that they
were not heard before such summon. In
any case after the Appellants were
45 added, they preferred an application
Under Section 482 of the Code of
Criminal Procedure before the High
Court, which was pending for a long
time. They finally withdrew this
50 application since they had got relief by
way of discharge Under Section 227 of
the Code of Criminal Procedure. The
Respondent State preferred a Criminal
Revision Application before the High
55 Court. The High Court set aside the
Order dated 23.09.2006 in Criminal
Revision Application passed by the
Additional Sessions Judge by which the
Appellants were discharged. While
60 setting aside the order, the High Court
made several observations on the merits
of the case as well as on the material
that was taken into account before
discharging the Appellants-accused. The
65 High Court also observed that the order
by which the Appellants were added
Under Section 319 of the Code of
Criminal Procedure was not challenged
and was allowed to become final. This
70 may not actually be accurate since, as
noted above, the Appellants had in fact
challenged the order but had withdrawn
the application Under Section 482 of the
Code of Criminal Procedure.
75 The High Court also observed that the
order of discharge virtually nullifies the
order Under Section 319 of the Code of
Criminal Procedure made earlier by
which the accused were added. It is this
136
 last observation which has been put in
issue before us.
Mr. Sishir Pinaki, learned Counsel for
the Appellants submitted that
5 Section 227 of the Code of Criminal
Procedure can be availed of by an
accused, even if he is added as an
accused Under Section 319 of the Code
of Criminal Procedure since the effect of
10 adding such a person is that he becomes
newly added accused who is entitled to
avail of all the remedies available to him
under the Code of Criminal Procedure,
in particular, the remedy of discharge. It
15 is, therefore, necessary to construe
Section 227 and Section 319 of the Code
of Criminal Procedure.
Provisions of Sections 227 and 319 of
the Code of Criminal Procedure are read
20 as under:
227. Discharge.- If, upon consideration of
the record of the case and the documents
submitted therewith, and after hearing the
submissions of the accused and the
25 prosecution in this behalf, the Judge
considers that there is not sufficient ground
for proceeding against the accused, he shall
discharge the accused and record his
reasons for so doing.
30 319. Power to proceed against other
persons appearing to be guilty of offence.-
(1) Where, in the course of any inquiry into,
or trial of, an offence, it appears from the
evidence that any person not being the
35 accused has committed any offence for
which such person could be tried together
with the accused, the Court may proceed
against such person for the offence which he
appears to have committed.
40 (2) Where such person is not attending the
Court, he may be arrested or summoned, as
the circumstances of the case may require,
for the purpose aforesaid.
(3) Any person attending the Court although
45 not under arrest or upon a summons, may
be detained by such Court for the purpose
of the inquiry into, or trial of, the offence
which he appears to have committed.
(4) Where the Court proceeds against any
50 person Under Sub-section (1), then- (a) the
proceedings in respect of such person shall
be commenced a fresh, and the witnesses re-
heard;(b) subject to the provisions of
Clause (a), the case may proceed as if such
55 person had been an accused person when
the Court took cognizance of the offence
upon which the inquiry or trial was
commenced.
On a perusal of Section 319 of the Code
60 of Criminal Procedure, it is apparent that
a person who is not an accused may be
added as an accused only when it
appears from the evidence that he has
committed any offence for which he
65 could be tried together with the accused.
The Section says that in such an
eventuality, the Court "may proceed
against such person" for the offence
which he appears to have committed. In
70 other words, a person who is not an
accused becomes liable to be added
where he appears to have committed an
offence. Thereupon, the effect is that the
Court may proceed against such a
75 person.
Section 227 of the Code of Criminal
Procedure on the other hand, provides
that an accused may be discharged if the
Judge construes that there is no
80 sufficient ground for the proceedings
against him. In other words, if the Judge
is of the view that there are no sufficient
grounds for the proceedings against the
accused, he may be discharged,
137
 whereupon the proceedings against him
are dropped.
It is apparent that both these provisions,
in essence, have the opposite effect. The
5 power Under Section 319 of the Code of
Criminal Procedure results in the
summoning and consequent
commencement of the proceedings
against a person who was hitherto not an
10 accused and the power Under
Section 227 of the Code of Criminal
Procedure, results in termination of
proceedings against the person who is
an accused. It was, however, urged by
15 learned Counsel for the Appellants that
in order to avail of the remedies of
discharge Under Section 227 of the
Code of Criminal Procedure, the only
qualification necessary is that the person
20 should be accused. Learned Counsel
submitted that there is no difference
between an accused since inception and
accused who has been added as such
Under Section 319 of the Code of
25 Criminal Procedure. It is, however, not
possible to accept this submission since
there is a material difference between
the two. An accused since inception is
not necessarily heard before he is added
30 as an accused. However, a person who is
added as an accused Under
Section 319 of the Code of Criminal
Procedure, is necessarily heard before
being so added. Often he gets a further
35 hearing if he challenges the summoning
order before the High Court and further.
It seems incongruous and indeed
anomalous if the two sections are
construed to mean that a person who is
40 added as an accused by the court after
considering the evidence against him
can avail remedy of discharge on the
ground that there is no sufficient
material against him. Moreover, it is
45 settled that the extraordinary power
Under Section 319 of the Code of
Criminal Procedure, can be exercised
only if very strong and cogent evidence
occurs against a person from the
50 evidence led before the Court. It is now
settled vide the Constitution Bench
decision in Hardeep Singh v. State of
Punjab and Ors.[ (2014) 3 SCC 92] that
the standard of proof employed for
55 summoning a person as an accused
Under Section 319 of the Code of
Criminal Procedure, is higher than the
standard of proof employed for framing
a charge against an accused. The Court
60 observed for the purpose of
Section 319 of the Code of Criminal
Procedure, that "what is, therefore,
necessary for the Court is to arrive at a
satisfaction that the evidence adduced
65 on behalf of the prosecution, if
unrebutted, may lead to the conviction
of a person sought to be added as the
accused in the case." As regards the
degree of satisfaction necessary for
70 framing a charge this Court observed in
para 100:
100. However, there is a series of cases
wherein this Court while dealing with
the provisions of
75 Sections 227, 228, 239, 240, 241, 242 an
d 245 of the Code of Criminal
Procedure, has consistently held that the
court at the stage of framing of the
charge has to apply its mind to the
80 question whether or not there is any
ground for presuming the commission of
an offence by the accused. The court has
to see as to whether the material brought
on record reasonably connect the
85 accused with the offence. Nothing more
is required to be enquired into. While
dealing with the aforesaid provisions,
the test of prima facie case is to be
applied. The court has to find out
90 whether the materials offered by the
prosecution to be adduced as evidence
138
 are sufficient for the court to proceed
against the accused further.
The Court concluded in para 106 as
follows:
5 106. Thus, we hold that though only a
prima facie case is to be established
from the evidence led before the court,
not necessarily tested on the anvil of
cross-examination, it requires much
10 stronger evidence than mere probability
of his complicity. The test that has to be
applied is one which is more than prima
facie case as exercised at the time of
framing of charge, but short of
15 satisfaction to an extent that the
evidence, if goes unrebutted, would lead
to conviction....
Thus it does not stand to reason that a
person who is summoned as an accused
20 to stand trial and added as such to the
proceedings on the basis of a stricter
standard of proof can be allowed to be
discharged from the proceedings on the
basis of a lesser standard of proof such
25 as a prima facie connection with the
offence necessary for charging the
accused. This view is further fortified by
the fact that a person is added as an
accused Under Section 319 of the Code
30 of Criminal Procedure, on the basis of
evidence; whereas an accused is
discharged Under Section 227 of the
Code of Criminal Procedure, on a sifting
of material collected i.e. "the record of
35 the case and the document submitted
herewith" in order to find out whether or
not there is sufficient ground for
proceeding against the accused. In fact it
may be noted that the mandate of
40 Section 228, Code of Criminal
Procedure, is that the Judge only need
be of "opinion that there is ground for
presuming that the accused has
committed an offence....." before
45 framing a charge. In fact this Court has
held in Ajay Kumar Parmar v. State of
Rajasthan reported in (2012) 12 SCC
406 that appreciation of evidence at the
stage of Section 227 of the Code of
50 Criminal Procedure, is not permissible
(vide para 17). It is, therefore, clear that
an order for addition of an accused made
after considering the evidence cannot be
undone by coming to the conclusion that
55 there is no sufficient ground for
proceeding against the accused without
appreciation of evidence.
We are not unmindful of the fact that the
interpretation placed by us on the
60 scheme of Sections 319 and 227makes
Section 227 unavailable to an accused
who has been added Under
Section 319 of the Code of Criminal
Procedure. We are of the view, for the
65 reasons given above that this must
necessarily be so since a view to the
contrary would render the exercise
undertaken by a Court Under
Section 319 of the Code of Criminal
70 Procedure, for summoning an accused,
on the basis of a higher standard of
proof totally infructuous and futile if the
same court were to subsequently
discharge the same accused by exercise
75 of the power Under Section 227 of the
Code of Criminal Procedure, on the
basis of a mere prima facie view. The
exercise of the power Under
Section 319 of the Code of Criminal
80 Procedure, must be placed on a higher
pedestal. Needless to say the accused
summoned Under Section 319of the
Code of Criminal Procedure, are entitled
to invoke remedy under law against an
85 illegal or improper exercise of the power
Under Section 319, but cannot have the
effect of the order undone by seeking a
discharge Under Section 227 of the
Code of Criminal Procedure. If allowed
90 to, such an action of discharge would
139
 not be in accordance with the purpose of
the Code of Criminal Procedure in
enacting Section 319 which empowers
the Court to summon a person for being
5 tried along with the other accused where
it appears from the evidence that he has
committed an offence. It would be
apposite to refer to the principle of
purposive construction of a statute
10 invoked by this Court in New India
Assurance Co. Ltd. v. Nusli Neville
Wadia and Anr. (2008) 3 SCC 279,
which is as under:
51...With a view to read the provisions
15 of the Act in a proper and effective
manner, we are of the opinion that
literal interpretation, if given, may give
rise to an anomaly or absurdity which
must be avoided. So as to enable a
20 superior court to interpret a statute in a
reasonable manner, the court must
place itself in the chair of a reasonable
legislator/author. So done, the rules of
purposive construction have to be
25 resorted to which would require the
construction of the Act in such a manner
so as to see that the object of the Act is
fulfilled, which in turn would lead the
beneficiary under the statutory scheme
30 to fulfil its constitutional obligations as
held by the Court inter alia in Ashoka
Marketing Ltd.
52. Barak in his exhaustive work on
"Purposive Construction" explains
35 various meanings attributed to the term
"purpose". It would be in the fitness of
discussion to refer to Purposive
Construction in Barak's words:
Hart and Sachs also appear to treat
40 'purpose' as a subjective concept I say
'appear' because, although Hart and
Sachs claim that the interpreter should
imagine himself or herself in the
legislator's shoes, they introduce two
45 elements of objectivity: First, the
interpreter should assume that the
legislature is composed of reasonable
people seeking to achieve reasonable
goals in a reasonable manner; and
50 second, the interpreter should accept the
non-rebuttable presumption that
members of the legislative body sought
to fulfil their constitutional duties in
good faith. This formulation allows the
55 interpreter to inquire not into the
subjective intent of the author, but
rather the intent the author would have
had, had he or she acted reasonably.
Ms. Prerna Singh, learned Counsel for
60 the State also submitted that a person
who is an accused Under
Section319 ought not to be given an
opportunity to avail of the remedy of
discharge Under Section 227 since it
65 would be contrary to the scheme and
intent of the Code of Criminal
Procedure. We have no difficulty in
accepting this submission for the
reasons stated above. We are also
70 satisfied that it would not result in any
undue hardships to the accused since the
remedy before a superior court is
available.
In the result, we see no merit in the
75 appeal which is liable to be dismissed.
140
 Essar Teleholdings Ltd vs. CBI
(2015) 10 SCC 562
Objectives:
1. When joint trial may be hold
2. Interpretation of Ss. 220 & 223 of IPC
JUDGMENT
Rohinton Fali Nariman, J.
These matters arise as a sequel to the
judgment delivered by this Court on
1.7.2013 by which three writ petitions
filed by Essar Teleholdings Limited,
5 Loop Telecom Limited and Vikash
Saraf were dismissed by a Division
Bench of this Court.
Facts - CBI registered an FIR RC No.
DAI 2009 A 0045 dated 21.10.2009
10 alleging offences under the Prevention
of Corruption Act, 1988 and criminal
conspiracy in respect of the grant of 122
UAS licenses in the year 2008 against
various unknown Government officials,
15 persons and companies. The gist of the
offence was set out in the penultimate
paragraph of the said FIR, which is set
out as follows:
Thus, the concerned officials of
20 Department of
Telecommunications in criminal
conspiracy with private
persons/companies by abusing
their official position granted
25 Unified Access Service Licenses
to a few selected companies at
nominal rate by rejecting the
applications of others without
any valid reason thereby
30 causing wrongful loss to the
Government of India and a
corresponding wrongful loss to
private persons/companies
estimated to be more than Rs.
35 22,000 Crores.
The aforesaid facts disclose
commission of offence Under
Sections 120-B Indian Penal
Code, r/w
40 Section 13(2) r/w 13(1)(d) of PC
Act, 1988 against certain
unknown officials of Department
of Telecommunications,
Government of India, unknown
45 private persons/companies and
others.
On 16.12.2010, this Court passed an
order reported in Centre for Public
Interest Litigation v. Union of India
50 (2011) 1 SCC 560, directing the CBI to
investigate the said FIR. On 10.2.2011,
while monitoring the CBI investigation,
this Court passed an order directing that
no other Court shall pass any order
55 which may in any manner impede the
investigation being carried out by the
CBI and Directorate of Enforcement. On
2.4.2011, and 25.4.2011, CBI filed a
chargesheet and a first supplementary
60 chargesheet against 12 accused persons
for offences committed both under the
Indian Penal Code and the Prevention of
Corruption Act. It is common ground
that none of the Petitioners before us
65 were named or mentioned in these two
chargesheets.
141
 The present case arises out of a second
supplementary chargesheet dated
12.12.2011 naming 8 persons as
accused, alleging offences Under
5 Section 120B read with
Section 420 Indian Penal Code. It is
relevant to mention that this second
supplementary chargesheet which
implicated the Petitioners before us did
10 not contain any offences under the
Prevention of Corruption Act. The CBI
mentioned in the said chargesheet that
separate offences came to their notice
during the investigation of FIR RC No.
15 DAI 2009 A 0045, as a result of which
the second supplementary chargesheet
was being filed. They further went on to
state that these charges are triable by a
Magistrate of the First Class but may be
20 endorsed to any appropriate court as
deemed fit after which process may be
issued to the accused persons for their
appearance and to face trial as per law.
On 21.12.2011, the Special Judge took
25 cognizance of this second
supplementary chargesheet dated
12.12.2011 and stated that he was
satisfied that there is enough
incriminating material on record to
30 proceed against the accused persons.
Meanwhile, pursuant to an observation
made in this Court's order dated
10.2.2011, two important things
happened. First, the Delhi High Court
35 passed an administrative order dated
15.3.2011 appointing Shri O.P. Saini as
Special Judge to undertake trial of cases
in relation to all matters pertaining to the
2G Scam, and the Government of NCT
40 of Delhi also promulgated a notification
dated 28.3.2011 under the Prevention of
Corruption Act nominating the self-
same Shri O.P. Saini a Special Judge to
undertake trial of cases in relation to all
45 matters pertaining to the 2G Scam.
Three writ petitions were filed as has
been stated above, challenging inter
alia the order dated 21.12.2011 passed
by the Special Judge, CBI taking
50 cognizance of the matters stated in the
second supplementary chargesheet
against the Petitioners before us. The
prayers contained in these writ petitions
are set out hereunder:
55 a) a Writ of Certiorari or an order or
direction in the nature of certiorari
quashing the Administrative Order
dated 15.03.2011 issued by the
Respondent No. 1 in so far as it seeks
60 to confer upon the Ld. Special Judge
Shri O.P. Saini jurisdiction to inquire
into and try all cases arising out of
2G Spectrum scam, which are
otherwise exclusively inquired into
65 and triable by a Magistrate under the
relevant statutes and to quash all
consequential actions/orders passed
thereupon;
b) a Writ of Certiorari or any other
70 order or direction in the nature of
certiorari quashing the Notification
bearing No. 6/05/2011-Judl. dated
28.03.2011 in so far as it seeks to
confer upon the Ld. Special Judge
75 Shri O.P. Saini jurisdiction to inquire
into and try all cases arising out of
the 2G Spectrum scam, including
those which are not within the scope
of his jurisdiction under the relevant
80 statutes read with the Constitution of
India and to quash all consequential
actions/orders thereupon;
..
9. It will thus be seen that prayers (a)
85 and (b) concern themselves with
quashing the administrative order dated
15.3.2011 of the High Court and the
notification dated 28.3.2011 of the
Government of NCT of Delhi, both
142
 appointing and conferring jurisdiction
on the Special Judge to enquire into and
try all cases arising out of the 2G Scam.
Prayer (c) was devoted to setting aside
5 the order dated 21.12.2011 passed by
the learned Special Judge taking
cognizance.
In a detailed judgment, dismissed the
writ petitions in the following terms:
10 We find no merit in these writ
petitions, they are accordingly
dismissed. The Special Court is
expected to proceed with the
trial on day-to-day basis to
15 ensure early disposal of the trial.
There shall be no order as to
costs. [at para 35]
Close upon the heels of the judgment of
this Court, Essar Teleholdings Ltd., one
20 of the Petitioners before us, by an
application dated 29.7.2013, sought for
a joint trial, by praying as follows:
a) Pass an order to give effect to
the judgment of the Hon'ble
25 Supreme Court dated 01.07.2013
passed in Writ Petition (Civil) No.
57 of 2012, treating the Accused in
CC No. 1B of 2011 as 'Co-accused'
with the Accused in CC No. 1 of
30 2011 and to pass all other
consequential orders, in this
regard; and/or
b) Consider the matter afresh from
the stage of the receipt of the report
35 Under Section173(8) Code of
Criminal Procedure, and frame
fresh charges and also issue
appropriate directions upon the
Applicants joining the Trial in C.C.
40 No. 1 of 2011, and/or
c) Issue appropriate directions to
ensure that the proceedings i.e. CC
No. 1 of 2011 and CC No. 1B of
2011 are assimilated into one Trial
45 and for this purpose issue
appropriate directions to rectify the
situation as to the past, and for
further proceedings, direct that the
Trial being C.C. No. 1 of 2011 is
50 conducted in conformity with
Section 220 with 223 Code of
Criminal Procedure; and/or
Pass any other order(s) as this
Hon'ble Court may deem fit and
55 proper in the interest of justice.
The immediate cause for filing of the
present appeals is a judgment dated
2.9.2013 by which the Special Judge
dismissed the application filed by Essar
60 Teleholdings Ltd. asking for a joint trial.
Shri Harish Salve, learned senior
Counsel appearing for all the
Petitioners, submitted that as a lot of
water had already flowed and a large
65 number of witnesses have already been
examined, the correct course of action in
the present case should be to send the
second supplementary chargesheet filed
by the CBI to a Magistrate of the First
70 Class to try the offences Under
Section 120B read with Section 420 of
the Penal Code. His argument was that
this Court, in the judgment dated
1.7.2013, had held that since the present
75 Petitioners were co-accused in the on-
going trial, it must follow that either
there be a joint trial, in which case the
entire proceeding has to start de novo, or
as was suggested by him, the second
80 supplementary chargesheet should be
sent for trial separately to a Magistrate
of the First Class. According to learned
Counsel, it is clear that under the
Prevention of Corruption Act, the
143
 Special Judge can only try offences that
arise under the said Act and not offences
that arise under the Penal Code. It is
only Section4(3) of the said Act that
5 permits, in the circumstances mentioned
therein, the trial of Penal Code offences
which are that when trying any case, the
Special Judge may also try an offence
other than the offence specified in
10 Section 3 of the Prevention of
Corruption Act provided that this can
only be at the same trial. He stressed the
words "same trial" and said that it is
clear that short of a Penal Code offence
15 being linked to a Prevention of
Corruption Act offence and provided
they are tried together, no offence under
the Penal Code can be tried by the
Special Judge set up under the
20 Prevention of Corruption Act.
These submissions were countered by
Shri Anand Grover, learned senior
advocate appearing on behalf of the
Respondents. According to learned
25 Counsel, this Court in the judgment
dated 1.7.2013 did not direct that there
be a joint trial but only observed in
passing that the special Judge "may" try
the present case along with the main
30 case. He further argued that ultimately,
since this Court dismissed the writ
petitions filed by these very Petitioners,
and stated that the Special Court is
expected to proceed with the trial on a
35 day to day basis to ensure early disposal,
it is clear that ultimately no joint trial
was, in fact, to take place under any
alleged direction of this Court. He
further went on to submit that in any
40 case the provisions of
Sections 220 and 223 of the Code of
Criminal Procedure vest a discretion in
the Court, which discretion has been
appropriately exercised by the learned
45 Special Judge on the facts of the present
case. He went on to argue that if there
were to be a joint trial, all the accused
would necessarily have to give their
consent which is not the case here. He
50 also went on to submit, by
citing Harjinder Singh v. State of
Punjab (1985) 1 SCC 422, that the
expression "same trial" occurring in
Section 4(3) of the Prevention of
55 Corruption Act could also mean that the
present case may be tried immediately
after the trial in the main case is over.
Having heard learned Counsel for both
the parties, we are of the view that the
60 learned senior advocate for the
Petitioners is attempting to raise
submissions which have already been
rejected by this Court by its judgment
dated 1.7.2013. His main submission,
65 that in the fitness of things, the second
supplementary chargesheet should be
tried by a Magistrate of the First Class
would be directly contrary to the finding
of this Court that the said second
70 supplementary chargesheet be tried only
by the learned Special Judge. Quite
apart from this, his submission is also
beyond the prayer made in the
application filed before the Special
75 Judge. We have already extracted the
said prayer in paragraph 13 above. It is
clear that on a reading of the prayers in
the said application, only a joint trial
was asked for in pursuance of the
80 judgment of this Court dated 1.7.2013.
In fact, on a reading of the application
and the arguments made before the
learned Special Judge, the Petitioners'
main argument was that this Court, in
85 the order dated 1.7.2013, had in fact
mandated a joint trial. This was
correctly turned down by the learned
Special Judge, regard being had to the
fact that this Court, in paragraph 25 of
90 the judgment dated 1.7.2013, only stated
that a discretion was vested with the
144
 Special Judge which he may well
exercise given the facts of the case.
Read in the backdrop of
Sections 220 and 223, it is clear that a
5 discretion is vested with the Court to
order a joint trial. In fact, in Chandra
Bhal v. State of U.P (1971) 3 SCC 983,
this Court stated:
Turning to the provisions of the
10 Code, Section 233 embodies the
general mandatory rule providing
for a separate charge for every
distinct offence and for separate
trial for every such charge. The
15 broad object underlying the general
rule seems to be to give to the
accused a notice of the precise
accusation and to save him from
being embarrassed in his defence
20 by the confusion which is likely to
result from lumping together in a
single charge distinct offences and
from combining several charges at
one trial. There are, however,
25 exceptions to this general rule and
they are found in
Sections 234, 235, 236 and 239.
These exceptions embrace cases in
which one trial for more than one
30 offence is not considered likely to
embarrass or prejudice the accused
in his defence. The matter of
joinder of charges is, however, in
the general discretion of the court
35 and the principle consideration
controlling the judicial exercise of
this discretion should be to avoid
embarrassment to the defence by
joinder of charges. On the
40 Appellant's argument the only
provision requiring consideration
is Section 235(1) which lays down
that if in one series of acts so
connected together as to form the
45 same transaction more offences
than one are committed by the same
person then he may be charged
with and tried at one trial for every
such offence. This exception like the
50 other exceptions merely permits a
joint trial of more offences than
one. It neither renders a joint trial
imperative nor does it bar or
prohibit separate trials. Sub-section
55 (2) of Section 403of the Code also
provides that a person acquitted or
convicted of any offence may be
afterwards tried for any distinct
offence for which a separate charge
60 might have been made against him
on the former trial Under
Section 235(1). No legal objection
to the Appellant's separate trial is
sustainable and his counsel has
65 advisedly not seriously pressed any
before us. [at para 5]
Shri Salve cited State (through CBI,
New Delhi) v. Jitender Kumar
Singh (2014) 11 SCC 724, and
70 paragraph 38 in particular to submit that
a Special Judge appointed to try
Prevention of Corruption Act cases,
cannot try non Prevention of Corruption
Act cases unless there is a causal link
75 between such cases and the Prevention
of Corruption Act cases, in which case
they must be tried together. As has been
held by us, once the challenge to the
administrative order dated 15.3.2011, is
80 specifically rejected, the offences arising
out of the second supplementary
chargesheet, being offences under the
Penal Code relatable to the 2G scam,
can be tried separately only by the
85 Special Judge.
We find that the Special Judge, vide the
order dated 2.9.2013, has given cogent
reasons for not exercising his discretion
to order a joint trial. He stated that the
90 evidence in the main case has almost
145
 reached the end and as many as 146
witnesses in the main case and 71
witnesses in the second supplementary
chargesheet have already been
5 examined, clubbing the two cases
together would result in the wastage of
the effort already gone into and would
lead to a failure of justice. The learned
Judge concluded as follows:
10 47) In the end I may add that it is
not obligatory on the Court to hold
a joint trial and provisions of these
sections are only enabling
provisions. An accused cannot
15 insist with ulterior purpose or
otherwise that he be tried as co-
accused with other accused, that
too in a different case. It is only a
discretionary power and Court may
20 allow it in a particular case if the
interest of justice so demands to
prevent miscarriage of justice. In
the instant case, neither the facts
and allegations are common, nor
25 evidence is common nor the
accused were acting with a
50
commonality of purpose and, as
such, there is no ground for holding
a joint trial. I may also add that
30 holding a joint trial at this stage
may lead to miscarriage of justice.
48) In my humble view, a Court
may not deem it desirable to
conduct a joint trial, even if
35 conditions of these Sections are
satisfied, though not satisfied in the
instant case, that is:
a) when joint trial would
prolong the trial;
40 b) cause unnecessary
wastage of judicial time;
and
c) confuse or cause
prejudice to the accused,
45 who had taken part only in
some minor offence.
We find no infirmity in the impugned
judgment. As a result, the appeal and the
writ petitions are, therefore, dismissed.
146
 Ghisia and Ors. vs. State

AIR 1959 Raj 266

Objectives:

1. To understand the procedure in different types of trial enumerated in Code

2. Difference between procedure in cases instituted on police report and cases
instituted otherwise
3. Difference between summon case and warrant case
4. Whether Trial vitiates if warrant case tried as summon case – Is it an irregularity or
illegality?

JUDGMENT 20 They disclaimed all connection with the

Modi, J.
The question for determination is
whether, the trial of a warrant case,
which is instituted otherwise than on a
police report, under Section 251-A of
the Code of Criminal Procedure, while it
should have been tried in accordance
with the procedure laid down in Section
252 Cr. P. C. and the next following
sections amounts to an illegality which
would vitiate the trial. It is necessary to
state just a few facts of the two cases
which have been referred to us.
In Criminal Revision No. 28 of 1958,
the accused Ghisia, Balu and Mangia
5 were convicted by the Special
Magistrate, Jaipur under Section 54 (a)
of the Rajasthan Excise Act (No. II) of
1950 (hereinafter referred to as the
Excise Act) for distillation of illicit
10 liquor, and each of them was sentenced
to three months' rigorous imprisonment.
The case was challaned in the court of
the Magistrate by the Excise Inspector.
The accused were given copies of the
15 relevant documents under Section 173
of the Code of Criminal Procedure and a
charge was framed against them and
they were tried under the procedure laid
down in Section 251-A of the Code.
crime but were eventually convicted and
sentenced as stated above. They went in
appeal to the Sessions Judge Jaipur,
District Jaipur, who dismissed the
25 appeal. Thereupon the accused filed
Criminal Revision No. 28 of 1958 in
this Court, which, in the first instance,
came before a learned Single Judge.
The only point raised before the learned
30 Judge was that the Magistrate was
wrong in adopting the procedure under
Section 251-A in this case as it was not
instituted on a police report but was
taken cognizance of on a complaint filed
35 by the Excise Inspector and therefore
the conviction of the accused was bad
and must be quashed. On behalf of the
accused, reliance was placed on two
Single Judge decisions of this Court,
40 namely, State v. Bhagwana, ILR (1958)
8 Raj 525 : (AIR 1959 Raj 248) and
Chhitar Singh v. State, ILR (1958) 8 Raj
1206.
In both these cases, it was held that a
45 Magistrate taking cognizance of a case
on the report of an Excise Officer cannot
be deemed to have taken cognizance of
it as on a police report. As the accused
had, however, been tried in both these
50 cases under the procedure applicable to
a case instituted On a police report

147
 under Section 251-A Cr. P. C., the
conviction was quashed in one case by
this Court and in the other by the
Sessions Judge and was upheld by this
5 Court, and the cases were sent back for
re-trial in accordance with the procedure
laid down under Sections 232 to 250 Cr.
P. C.
It was contended before the learned
10 Single Judge that these cases required
reconsideration by a larger Bench as the
trial thereof could not be held to have
been vitiated in the absence of prejudice,
and no prejudice was or could have
15 possibly been caused to the accused on
account of the adoption of the procedure
under Section 251-A instead of that
under Section 252 Cr. P. C., and the
next following sections.
20 It is conceded before us by the learned
Deputy Government Advocate that
cognizance was taken by the Magistrate
in both these cases on the report of the
Excise Inspector, in the one case under
25 Section 67 of the Excise Act, these
reports did not amount to a police report
in the sense in which that expression has
been used in Chapter XIV of the Code
of Criminal Procedure. (See Sections
30 157, 158 and 173).
It was brought to our notice that by the
Rajasthan Excise Amendment Act (No.
XXII) of 1958, Section 67 of the Excise
Act has since been amended and that by
35 this amendment it has been provided
that a report of the Excise Inspector
under Section 67 shall be treated for all
purposes of trial to be a report made by
a police officer within the meaning of
40 Clause (b) of Sub-section (1) of Section
190 Cr. P. C. But admittedly this
amendment was not in force at the time
with which we are concerned.
That being so, it cannot but follow that
45 the procedure followed by the
Magistrate in the trial of these two cases
under Section 251-A was incorrect. The
short question then is whether this
irregularity amounts to an illegality
50 sufficient to vitiate the trial.
We may point out at the very outset that
in the two cases on which reliance was
sought to be placed before the learned
single Judge, this particular aspect of the
55 controversy was not raised at all, and it
was assumed as if the trial was illegal,
and it was on this footing that the cases
were sent back for re-trial. But it is this
aspect which has been pointedly raised
60 now, and it is strenuously contended on
behalf of the State that even though
these cases were tried according to the
procedure laid down for the trial of
cases instituted on a police report, the
65 trial was good enough, and that in any
case no prejudice could have been
caused to the accused and, therefore, we
should not interfere with their
conviction.
70 Now before the Code of Criminal
Procedure (Amendment) Act, 1955 (No.
XXVI of 1955) came to be enacted,
there was a uniform procedure laid
down for the trial of warrant cases
75 irrespective of the consideration whether
a case was instituted on a police report
or otherwise, as for example, on a
private complaint. By the Amendment
Act, however, two different procedures
80 have been prescribed; one, where a case
is instituted on a police report and
another where a case happens to be
instituted otherwise than On a police
report.
85 Section 251-A which has been newly
introduced lays down a complete
procedure to be adopted in the first class
148
 of cases while in the other class of cases
sections 252 to 259 of the Code
prescribed the procedure to be followed.
The object behind this differentiation in
5 the procedure is to accomplish speedier
disposal of warrant cases instituted on a
police report by saving judicial time and
without at the same time prejudicing the
accused.
10 This is apparently based on the
recognition which the Legislature has
thought fit to accord to the investigation
by the police which after all is said and
done is a department of the Government,
15 and its business is to investigate crime
through trained personnel in accordance
with the procedure laid down in the
Code of Criminal Procedure.
Therefore it is that cases instituted on a
20 police report have been classified into a
special category and a comparatively
simple and expeditious procedure has
been laid down for the trial of such
cases, and it is provided that when the
25 accused appears or is brought before a
Magistrate at the commencement of the
trial, he should satisfy himself that the
documents referred to in Section 173 Cr.
P. C. have been furnished by the police
30 to the accused, and if not he must cause
them to be so furnished, and upon a
consideration of all the documents
referred to in Section 173 and after
making such examination of the accused
35 as the Magistrate thinks necessary and
after hearing the prosecution and the
accused, the Magistrate may frame a
charge against the accused if he
considers that there is ground for
40 presuming that the accused has
committed an offence which he is
competent to try and which can be
adequately. punished by him.
In other words, the old procedure of
45 recording evidence of the prosecution
before the framing of the charge has
been entirely dispensed with in the
interests of speedier justice. After the
charge is framed, it has to be read out
50 and explained to the accused and he is
asked whether he pleads guilty or not. If
the accused does plead guilty, the
Magistrate must record the plea and may
in his discretion convict him.
55 If, on the other band, the accused does
not plead guilty or refuses to plead or
claims to be tried, the Magistrate must
fix a date for the examination of
witnesses. It is then provided that the
60 Magistrate shall proceed to take all such
evidence as may be produced in support
of the prosecution provided that he may
allow the cross-examination of any
witness to be deferred pending the
65 examination of any other witness or he
may allow any witness to be recalled for
any further cross-examination.
Thereafter the accused is called upon to
enter upon his defence and produce his
70 evidence. If the accused after entering
upon his defence applies td the
Magistrate to compel the attendance of
any prosecution witness for further
cross-examination, the Magistrate must
75 issue process unless he considers that
such application is frivolous or
vexatious and has been made to defeat
the ends of justice.
There is an important proviso to this,
80 and that is that where the accused has
cross-examined or had the opportunity
of cross-examining any witness after the
charge is framed, the attendance of such
witness shall not be compelled unless
85 the Magistrate is satisfied that it is
necessary for the purposes of justice.
After all such evidence has been
149
 recorded, if the Magistrate comes to the
conclusion that the accused is guilty, he
must pass sentence upon him according
to law, while if he comes to the
5 conclusion that the accused is not guilty,
he must acquit the accused. This is the
simplified procedure which has been
laid down under Section 251-A of the
Code in cases instituted on police report.
10 As to all other cases which are not
instituted on a police report, the Code
retains the old procedure which is
embodied in Sections 252 to 259 of the
Code. In such cases when the accused
15 appears or is brought before a
Magistrate, he must proceed to hear the
complainant and take all such evidence
as the prosecution intends to produce.
It may be pointed out here that the
20 Magistrate has no power to require the
accused forthwith to state his plea or
where he admits his guilt to convict him
without taking any evidence as in a
summons case (Vide Sections 242 and
25 243 Cr. P. C.). It must also be observed
that while the procedure laid down
under Section 251-A in the trial of cases
instituted on a police report is that no
examination of prosecution witnesses is
30 necessary before charge, the trial of
cases under Section 253 for obvious
reasons contemplates that the Magistrate
must record the evidence of the
complainant, if any, and of such other
35 witnesses as may be produced in support
of the prosecution.
It may be pointed out here that this
section does not expressly refer to the
right of the accused to cross-examine
40 the prosecution witnesses and, therefore,
some courts have taken the view that the
accused has no right and need not be
permitted to cross-examine the
witnesses before the framing of the
45 charge. With all respect, we are not
inclined to accept this view as sound,
and we consider it sufficient to draw
attention to the language of Section 252
itself in this connection which enjoins
50 the Magistrate to "take all such evidence
as may be produced in support of the
prosecution".
The word 'evidence' where it relates to
the recording of oral evidence
55 necessarily imports not only
examination-in-chief but also cross-
examination, and re-examination. It is
another matter that the accused, may
choose not to avail himself of this
60 opportunity of cross-examination, and
where he does so, nothing can compel
him to exercise it.
The position, therefore, under the
procedure laid down under Section 252
65 clearly is that the accused has the
opportunity to cross-examine
prosecution witnesses before a charge
may be framed against him, and where
upon the taking of such evidence as
70 referred to in Section 252 and
examining the accused, if necessary, the
Magistrate finds that no case against the
accused had been made out, he must
discharge him.
75 It has also been provided that where the
Magistrate at any previous stage of the
case considers the charge to be
groundless, he can discharge the
accused, but he must record his reasons
80 for doing so. Where, however, the
Magistrate entertains the opinion that
there is ground for presuming that the
accused has committed an offence
which the Magistrate is competent to try
85 and which can be adequately punished
by him, he must frame a charge and read
and explain it to the accused and his
plea must then be recorded.
150
 If he pleads guilty, the Magistrate may
in his discretion convict him on such
plea, but where he does not plead guilty
or refuses to plead or claims to be tried,
5 Section 256 further provides him an
opportunity to cross-examine any of the
prosecution witnesses where evidence
has already been taken. In fact, the
section says that the accused shall be
10 required to state, at the commencement
of the next hearing, or, where the
Magistrate, for reasons to be recorded in
writing, so thinks fit, forthwith, whether
he wishes to cross-examine any, or, if
15 so, which of the prosecution witnesses
whose evidence has already been taken,
and where the accused expresses his
wish to do so the witnesses named by
him must be called and allowed to be
20 cross-examined and re-examined.
Thereafter the remaining witnesses for
the prosecution are required to he
examined and then the accused is
required to enter upon his defence and
25 produce his evidence. Under Section
257 the accused after he has entered
upon his defence has been given a
further opportunity to apply for
compelling the attendance of any
30 witness whom he wishes to cross-
examine, though the Magistrate has
been given the power to refuse such an
application in the case of a witness who
has already been cross-examined or
35 whom the accused had the opportunity
of cross-examining unless the
Magistrate is satisfied that such further
opportunity is necessary in the interests
of justice. This provision of course
40 corresponds to Sub-section (9) of
Section 251-A.
Having set out above the main features
of the trial of the two classes of warrant
cases, we find that there are vital points
45 of difference between the two modes of
trial although the procedure relates to
one and single genus, namely, the trial
of warrant cases as for example, contra-
distinguished from the trial of summons
50 cases. Under Section 251-A the accused
has no right to claim that oral evidence
should be recorded before a charge is
framed, and necessarily, therefore, he
has no opportunity whatsoever to cross-
55 examine the prosecution witnesses
before the framing of the charge, Thus,
in warrant cases instituted otherwise
than on a police report, the accused has
three opportunities of cross-examining
60 the prosecution witnesses : (i) before the
charge is framed; (ii) after the charge is
framed and before the accused is asked
to enter upon his defence, and (iii) after
the accused has entered upon his
65 defence subject of course to certain
restrictions contained in the relevant
sections. Again, the right of the accused
under Section 256 to recall and cross-
examine prosecution witnesses who
70 have already been examined before the
framing of the charge is an absolute one,
while under Section 257 it is subject to
the discretion of the Magistrate.
Under the mode of trial prescribed under
75 Section 251-A, however, the accused
has an absolute right to cross-examine
the prosecution witnesses only once
under Sub-section (7), and there is a
further opportunity under Sub-section
80 (9), but this is a very limited one, as is
the case under Section 257 which
applies to the trial of the other class of
warrant cases. The only other provision
to which we may perhaps draw attention
85 in this connection is the one that is
contained in Section 259.
This section provided that when the
proceedings have been instituted upon
complaint and upon any day fixed for
90 the hearing of the case, the complainant
151
 is absent and the offence may be
lawfully compounded or is not a
cognizable one, the Magistrate may, in
his discretion, at any time before the
5 charge has been framed, discharge the
accused. No such provision is to be
found for discharge of the accused on
accoupt of the absence of the
complainant under the other mode of
10 procedure.
Now, the importance of the right of
cross-examination, particularly in
criminal trials, cannot be over-
estimated, and it cannot be denied that
15 the fate of many a criminal case hangs
upon the successful exercise of the right
of cross-examination and the
opportunities for its exercise. In the
words of Professor Wigmore, "cross-
20 examination is the greatest legal engine
ever invented for the discovery of truth",
We may also reproduce, with all respect,
the observations of their Lordships of
the Privy Council in Pulukuri Kottaya v.
25 Emperor, AIR 1947 PC 67, in
connection with the accused's right to
cross-examine prosecution witnesses
with reference to statements made by
them to the Police under section 162 Cr.
30 P. C., as the principle of those
observations fully applies to the matter
before us : “The right given to an
accused person by this section is a very
valuable one and often provides
35 important material for cross-
examination of the prosecution
witnesses. However slender the material
for cross-examination may seem to be, it
is difficult to gauge its possible effect.
40 Minor inconsistencies in his several
statements may not embarrass a truthful
witness, but may cause an untruthful
witness to prevaricate, and may lead to
the ultimate break-down of the whole of
45 his evidence.”
We should also like to point out in this
connection that the opportunity that is
available to an accused for his discharge
under the procedure laid down under
50 sections 252 to 259 is ampler than in the
case of the procedure laid down under
Section 251-A. This, to our mind, is
obvious. For, in the first place, under the
last mentioned procedure no evidence
55 upto the stage of framing the charge can
be examined by the Magistrate himself,
and, therefore, he has hardly any
opportunity of forming firsthand
impressions of such evidence as has
60 been recorded by the police. In the
second place, these statements have not
been subjected to cross-examination.
Therefore even though we are prepared
to accept that the right of discharge is
65 available to the accused even under the
procedure laid down under Section 251-
A, the opportunities for such discharge
cannot obviously be as ample as- in the
case of the other procedure.
70 There is, therefore, no denying the fact
that under the procedure laid down in
Sections 252 to 259, the accused has far
larger facilities for his defence than
under the procedure laid down under
75 section 251-A.
In this connection, it may not be entirely
out of place to refer to those cases
decided before the Criminal Procedure
(Amendment) Act, 1955, was
80 introduced, where the view has been
taken that the trial of a warrant case as a
summons case amounts to an illegality
which is sufficient to vitiate the trial.
In Emperor v. Chinnapayan, ILR 29
85 Mad 372, the Magistrate convicted the
accused on an admission made by the
accused without talcing any evidence
and without framing a charge. It was
held that if the case should have been
152
 tried as a warrant case, as it should have
been, it would have been the duty of the
Magistrate under Section 252 of the
Code of Criminal Procedure to take such
5 evidence as might be produced in
support of the prosecution, and the
accused could not have been called upon
to plead until after a charge had been
framed and read and explained to him.
10 It was further held that that was
something more than an irregularity, and
the accused might have been possibly
prejudiced by the procedure adopted by
the Magistrate, and on that view, the
15 conviction was set aside. This view was
followed in Gayaprasad v. Emperor,
AIR 1932 Nag 111, and it was held that
the trial of a warrant case as a summons
case was fatal to the trial as it amounted
20 to an illegality. The same point arose in
Sufal Golai v. Emperor, AIR 1938 Cal
205. It was held that the irregularity of
following the summons case procedure
instead of the procedure for warrant case
25 was not a mere matter of form, and that
the difference between the two forms of
trial was of sufficient importance to lead
to an almost indefeasible presumption of
prejudice to the accused, and it was
30 further held that the irregularity was of
such a character that it could not be
cured by Section 537 Cr. P. C. or any of
the other curative provisions of the
Code.
35 It has been pressed upon us that the
procedure laid down by Section 251-A
has been more or less assimilated to the
procedure laid down for the trial of
summons cases by the Magistrate of
40 course with certain differentiating
features; the main feature being that as a
result of investigation by the police, a
conclusion having been come to that the
accused should be put On his trial, the
45 officer in-charge of the police station is
required to furnish to the accused copies
of all important documents in the
possession of the police and of the
statements of witnesses recorded by
50 them.
Be that as it may, we are inclined to
hold the view that the two procedures
laid down for the trial of warrant cases,
one under Section 251-A and the other
55 under Section 252 and the following
sections are so different in their nature,
intrinsic application and their relative
effect on the opportunities to an accused
as respects his defence that we find it
60 extremely difficult for ourselves to hold
that the adoption of a procedure under
Section 251-A for that prescribed under
Section 252 to Section 259 is a mere
irregularity which will not amount to an
65 illegality in the absence of proof of
actual prejudice. What we indeed wish
to say is that in such a case it is hardly
necessary for the accused to prove
prejudice as a matter of fact, because, if
70 we may say so, there is an almost
irresistible presumption of prejudice and
it is impossible to precisely gauge the
effect of a trial which amounts to more
or less a mis-trial. Our attention has
75 been forcefully drawn to the decision of
their Lordships of the Supreme Court in
W. Slaney v. State of M. P., (S) AIR
1956 SC 116, in this connection by the
learned Deputy Government Advocate.
80 In this case, the two accused were
charged under Section 302 read with
Section 34 of the Penal Code, and there
was no separate alternative charge
framed under Section 302 against either
85 of them.
It had been found by the courts below
that one of the accused had inflicted the
fatal blow, and, therefore, he was held
guilty under Section 302 I. P. C. while
90 the other accused was acquitted. The
153
 question arose whether an omission to
frame a charge in the alternative under
Section 302 I. P. C. was an illegality
which vitiated the trial or a curable
5 irregularity provided there was no
prejudice against the accused. It was
held that the failure to frame a separate
charge under Section 302 against the
accused who had been charged under
10 Section 302 read with Section 34 but
convicted under Section 302 was only a
curable irregularity which in the absence
of prejudice could not affect the legality
of his conviction under Section 302.
15 Bose J. who delivered the judgment on
behalf of himself and the acting Chief
Justice S. Rule Das, as he then was, held
that “sections 225, 232, 535 and 537(a)
between them cover every conceivable
20 type of error and irregularity referable to
a charge that can possibly arise, ranging
from cases in which there is a conviction
with no charge at all from start to finish
down to cases in which there is a charge
25 but with errors, irregularities and
omissions in it. The Code is emphatic
that whatever the irregularity, it is not to
be regarded as fatal unless there is
prejudice.” Learned Deputy
30 Government Advocate argued on the
basis of certain general observations
contained in this judgment that after this
decision of the Supreme Court, a trial
should not and cannot be held to be bad
35 on the ground of any procedural error
unless it has caused prejudice to the
accused or has resulted in failure of
justice and that there was hardly any
proof that prejudice had in fact been
40 caused to the accused in the cases in
question.
With profound respect, we are inclined
to think that the present case does not
suffer from a defect of that kind as came
45 up for the consideration of their
Lordships of the Supreme Court in the
aforesaid case but exemplifies an error
of an altogether different character,
which in our judgment, goes to the very
50 root of the case and amounts to what we
may call a 'Mis-trial'. In this connection
we desire, with respect, to draw
attention to the pinciple that when a trial
is conducted in a manner different from
55 that which is prescribed by the Code, the
trial is bad and no question of curing an
irregularity in such a case can arise, (see
AIR 1947 PC 67),, or, putting it slightly
in a different way, where such a 'mis-
60 trial' occurs, an almost irresistible
presumption of prejudice arises and the
trial has to be struck down as bad and
nothing contained under Section 537,
Cr. P, C. can be held to cure such an
65 irregularity.
We may in this connection also draw
attention to certain observations of Bose
J. himself in Slaney's case, (S) AIR 1956
SC 116 cited above which would lend
70 support to the distinction we have in
view:
“Under the Code as in all procedural
laws, certain things are regarded as vital.
Disregard of a provision of that nature is
75 fatal to the trial and at once invalidates
the conviction. Others are not vital and
whatever the irregularity they can be
cured; and in that event the conviction
must stand unless the court is satisfied
80 that there was prejudice.”
Again a little later occurs the following
passage:--
“The sort of problem that we are now
examining can only arise when an
85 express provision of the Code is violated
and then the root of the matter is not
whether there is violation of an express
provision, for the problem postulates
154
 that there must be, nor is it whether the
provision is expressed in positive or in
negative terms, but what are the
consequences of such disregard. Does it
5 result in an illegality that strikes at the
root of the trial and cannot be cured or is
it an irregularity that is curable?”
“In the end it all narrows down to this.
Some things are illegal..............because
10 the Code expressly makes them so;
others are struck down by the good
sense of Judges, who whatever
expressions they may use, do so because
those things occasion prejudice and
15 offend their sense of fair play and
justice.”
In the words of Chandrasekhara J. who
delivered a separate judgment on his
behalf and Jagannadhadas J. in this very
20 case-- “The gravity of the defect will
have to be considered to determine if it
falls within one class or the other. Is it a
mere unimportant mistake in procedure
or is it substantial and vital? The answer
25 will depend upon the facts and
circumstances of each case. If it is so
grave that prejudice will necessarily be
implied or imported, it may be described
as an illegality. If the seriousness of the
30 omission is of a lesser degree, it will be
an irregularity, and prejudice by way of
failure of justice will have to be
established.”
Now we may state at once that the Code
35 does not contain any express provision
as regards the effect of an irregularity
like the one with which we are
concerned in this case before us. And,
therefore, the question for decision is
40 whether the trial of a warrant case
instituted otherwise than on a police
report in accordance with the procedure
laid down under Section 25I.A instead
of under the proper procedure prescribed
45 by Sections 252 to 259 is a curable
irregularity within the meaning of
Section 537, Cr. P. C.
It is true that both modes of trial are
prescribed in the Code itself and
50 therefore it cannot be said of a situation
like the present that the procedure
followed in the present cases was
unknown to the Code or is. prohibited
by it. At the same time, it cannot be
55 forgotten that the Legislature in its
wisdom has itself prescribed two
separate procedures for the two classes
of cases, namely, those instituted on a
police report and those instituted
60 otherwise and must have indeed done so
for cogent reasons. We have already
analysed the two procedures and pointed
out their different characteristics and the
underlying reasons for prescribing one
65 kind of trial in the one class of cases and
another procedure for the other class of
cases.
We have no doubt that the mode of trial
prescribed under Section 252 to Section
70 259 afford much larger facilities to the
accused for his defence than that
contained in Section 251A, particularly
in view of the reasons aforementioned
and which we need not repeat. Can it be
75 said, in these circumstances, that the
substitution of the one mode of trial by
another is an unimportant mistake of
procedure incapable by itself of
depriving an accused of a fair trial as
80 contemplated by the Code.
On a most anxious and careful
consideration of the whole problem, we
are disposed to hold the view that an
irregularity of this character is of a vital
85 character and is so serious that prejudice
or a possible failure of justice should be
accepted to be inherent in such a
situation so that it is impossible to guage
155
 precisely the manner in or the extent to
which the accused may have been
prejudiced by such trial.
In this view of the matter, we are
5 unable to agree with the view taken in
Mahabir Prasad v. State, AIR 1958
Orissa 11, that the trial of a case
according to the procedure laid down in
Section 251A but which should have
10 been tried according to the procedure
laid down in Section 252 and the
following sections cannot work any
prejudice to the accused or that instead
he gets the advantage of a speedy trial
15 which advantage, with all respect,
hardly countervails the more serious
disadvantages of such a trial so far as
the accused is concerned.
Before we conclude, we should also like
20 to refer to a case of our own court which
went up to their Lordships of the
Supreme Court, namely, Magga v. State
of Rajasthan, AIR 1953 SC 174. The
facts in that case were that out of three
25 assessors summoned to act by the
Sessions Judge, one absented himself on
the date of hearing and the Court
thereupon ordered another person who
was present in Court to act without
30 going through the necessary formalities.
Thereafter the absent assessor re-
appeared and he was also allowed to sit
and thereupon all the four assessors
gave their opinion at the conclusion of
35 the trial.
It was contended that the trial was bad
and that the illegality could not be cured
by the provisions of Section 537, Cr. P.
C. This Court held that both the
40 irregularities mentioned above were
curable. Disagreeing with this view, as
far as the second irregularity was
concerned, their Lordships of the
Supreme Court took the view that the
45 trial conducted in the case was
conducted in a manner different from
that prescribed by the Code and was bad
and that no question arose of curing an
irregularity. It was further observed that
50 the Code did not authorise a trial
commenced with the aid of three named
assessors to be conducted and completed
with the aid of four assessors, and that it
was not possible to say with any degree
55 of certainty to what extent the opinion of
the outgoing and the incoming assessors
who did not attend the whole of the trial
influenced the decision in the case, and,
therefore, the trial was illegal.
60 We think that the principle of this case
applies to the case before us although
we do recognise that the kind of
irregularity which has been committed
in this case is of a different character
65 from that committed in the aforesaid
case.
For the foregoing reasons, we are clearly
of the opinion that the trial in these two
cases which were instituted otherwise
70 than On a police report, according to the
procedure laid down for a trial on a
police report under Section 251A was
bad and was a 'mis-trial' and amounts to
an illegality sufficient to vitiate the trial
75 and that the effect of such a mis-trial is
extremely difficult to be precisely
estimated and is bound, in the very
nature of things, to cause prejudice to
the accused, and, therefore, necessarily
80 imports prejudice or failure of justice to
them.
Consequently, we allow these revisions,
set aside the convictions and the
sentences of the accused and send these
85 cases back to the trial Magistrate for a
fresh trial in accordance with law.
156
 Omparkash Shivprakash vs. K.I. Kuriakose and ors.

AIR 1999 SC 3870

Objectives:
1. To understand the meaning of term trial
2. What envisages trial under the code and when does trial commences
3. What is Summary Trial and Procedure thereof.

JUDGMENT Kesari Dhall which is a prohibited

THOMAS J.
Appellant is a firm. It has now been
impleaded as the 6th accused in a
prosecution case launched by the Food
Inspector, Cochin Corporation, for the
5 offence under Section 16(1) of the
Prevention of Food Adulteration Act,
1954 (for short "the Act"). Appellant
moved the High Court under Section
482 of the Code of Criminal Procedure
10 (for short "the Code") to quash the order
by which the appellant was impleaded
as an accused in the criminal case, A
learned Single Judge of the High Court
dismissed the petition as per the order
15 which is now being challenged before
us.
The skeletal facts, for dealing with the
questions raised, are these:
35 substance: As the first accused told the
Food Inspector that he purchased the
article from second accused the Food
Inspector sent a letter to the second
accused (third accused is the Managing
40 Partner of the second accused firm). In
reply to the letter the third accused
informed that he purchased the food
article from the 4th accused firm (of
which 5th accused is the person in
45 charge of the business). Thus the Food
Inspector has arrayed all the above five
persons as accused in the complaint The
5th accused soon after entering
appearance in the court filed a petition
50 to implead the appellant firm as an
accused in the case on the premise that
5th accused purchased the Toor Dhall
from the appellant company. On
23.1.1998 an order was passed by the
55 learned magistrate on the said petition
on the following lines :

Food Inspector of Cochin Corporation
20 filed a complaint before a judicial
magistrate court at Ernakulam, against
five persons shown as accused alleging
that on 16.9.1995 another Food
Inspector, who was attached to the
25 mobile Vigilance squad, had visited the
business premises of the first accused
and took sample of 750 grams of Toor
Dhall and divided it into three parts as
prescribed by the Rules; when one of the
30 parts of the sample was analysed by the
Public Analyst it was found not
conforming to the standards prescribed
for Toor Dhall and that it contained
"Heard the Petitioner and the other
accused persons. Since A.P.P. is not
available, he could not be heard.
60 However the bill No, OS/td/046 dated
7.4.1995 produced by the petitioner
shows that they purchased Toor Dhall
from M/s. Omprakash Shivprakash
Akola. Hence, for the ends of justice it
65 is necessary that they shall be impleaded
as an accused in this case. Hence the
petition is allowed and M/s. Omprakash
Shivprakash Ltd., Kiranabazar, Akola,
represented by Sanjay Kumar is
70 impleaded as an accused in this case.
Issue summons to him."

157
 Learned Single Judge repelled the
contention of the appellant that it could
not have been impleaded at that stage
and in support of such stand learned
5 Single Judge relied on the decisions in
M/s Bhagwan Das Jagdish Chander v.
Delhi Administration, [1975] I SCC 866
and Delhi Cloth and General Mills Co.
Ltd. v. State of M.P. and Ors., [1995J 6
10 SCC 62, besides two other decisions of
the same High Court. Learned Single
Judge has observed thus : "It is clear
from the above noted decisions of the
Supreme Court and this Court that the
15 manufacturer can be impleaded at any
stage of the trial and it need not be after
framing charge under Section 246 of the
Code of Criminal Procedure, if the case
is tried as a summons case, instituted
20 otherwise than on a police charge.
Therefore, the arguments advanced by
the senior counsel of the petitioner,
relying upon the decision of a two judge
bench of the Supreme Court while
25 considering the commencement of trial
under general provisions of the Criminal
Procedure Code, has no application to
the commencement of trial of a case for
the purpose of the special provision in
30 Section 20-A of the P.F.A. Act. Hence,
the contention of the petitioner that
Annexure-C order passed by the learned
Magistrate, impleading him as accused
before commencement of the trial in this
35 case is not sustainable is of no force,"
It can be pointed out now that the plea
of any of the accused was not recorded
nor even asked by the magistrate before
he ordered impleadment of the appellant
40 Power of the court to implead the
manufacturer, distributor or dealer, in
cases involving offences under the Act,
is envisaged in Section 20-A of the Act.
It reads thus :
45 "Where at any time during the trial of
any offence under this Act alleged to
have been committed by any person, not
being the manufacturer, distributor or
dealer of any article of food, the court is
50 satisfied, on the evidence adduced
before it, that such manufacturer,
distributor or dealer is also concerned
with that offence, then, the court may,
notwithstanding anything contained in
55 sub-section (3) of Section 319 of the
Code of Criminal Procedure, 1973 (2 of
1974), or in Section 20 proceed against
him as though a prosecution had been
instituted against him under Section 20."
60 The above provision overrides the ban
contained in Section 20 of the Act that
no prosecution shall be instituted for the
offences under the Act except by or with
the consent of the authorities mentioned
65 in the Section, The essential conditions
for invoking the power under Section
20-A are that (1) the trial should have
begun already; (2) the trial must be of
any offence under the Act allegedly
70 committed by a person other than the
manufacturer or distributor or dealer of
the food article; (3) the court must have
been satisfied that such manufacturer or
dealer or distributor is also concerned
75 with the offence; (4) such satisfaction
must have been formed "on the evidence
adduced before the court."
Section 319 of the Code empowers the
court to proceed against any person who
80 is not being made an accused already, if
it appears from the evidence collected in
the inquiry or trial of an offence that
such person has committed an offence
for which he could be tried together with
85 the already arraigned accused. One of
the differences between Section 319 of
the Code and Section 20-A of the Act is
that, while in the former even if it
appears to the court from the evidence
158
 (either during inquiry or trial of the
offence), that another person is to be
tried along with the already arraigned
accused, then the court can proceed
5 against that other person, while in the
latter the satisfaction of the court that
such manufacturer (distributor or dealer)
is also concerned with that offence must
be gathered from "the evidence adduced
10 before it during the trial". In other
words, the power under Section 20-A
cannot be invoked until the trial begins
and after the trial ends.
When does the "trial" begin as for an
15 offence under the Act? The word "trial"
is not defined either in the Act or in the
Code. However, the Code has
distinguished the trial from inquiry as
could be noted from Section 2(g) of the
20 Code wherein the word "inquiry" is
defined thus : "Inquiry means every
inquiry, other than a trial, conducted
under this Code by a Magistrate or
Court."
25 The term "trial" cannot be given a fixed
meaning to be applied in all cases
uniformly. The connotation of that word
changes with the difference in which the
term is employed in a particular
30 provision of any statute, This Court has
said in The State of Bihar v. Ram
Naresh Pandey, AIR (1957) SC 389 =
[1957] SCR 279 thus:
"The words `tried' and `trial' appear to
35 have no fixed or universal meaning. No
doubt, in quite a number of sections in
(he Code to which our attention has
been drawn the words `tried' and `trial'
have been used in the sense of reference
40 to a stage after the inquiry. That
meaning attaches to the words in those
sections having regard to the context in
which they are used. There is no reason
why where these words are used in
45 another context in the Code, they should
necessarily be limited in their
connotation and significance. They are
words which must be considered with
regard to the particular context in which
50 they are used and with regard to the
scheme and purpose of the provision
under consideration."
We will examine the relevant provisions
to ascertain as to when the trial in a case
55 involving offences under the Act would
commence. Section 16-A of the Act
empowers a Judicial Magistrate of First
Class to try the offence under Section
16(1) of the Act in a summary way.
60 Chapter XXI of the Code deals with
summary trials of which Section 262
says that the procedure specified for trial
of summons cases shall be followed for
summary trial subject to some
65 variations. Chapter XX is titled "Trial of
Summon Cases by Magistrate". Section
251 of the Code is the commencing
provision of that Chapter, It requires that
when the accused appears or is brought
70 before the magistrate the particulars of
offence shall be stated to him and he
shall be asked whether he pleads guilty
or not. Section 254( 1) of the Code says
that if the magistrate does not convict
75 the accused he shall proceed to hear the
prosecution and "take all such
evidence".
The above scrutiny of the relevant
provisions reveals that the trial of
80 offences under the Act begins when the
magistrate asks the accused whether he
pleads guilty or not as envisaged in
Section 251 of the Code, if the
magistrate opts to hold summary trial.
85 Hence, evidence in a trial under the Act
can be adduced only after recording the
plea of the accused as envisaged in the
said section. Thus, it is clear that a
magistrate can implead any person
159
 under Section 20-A of the Act only after
reaching the stage envisaged in Section
254(1) of the Code.
As a matter of legal proposition this
5 Court has clearly stated in M/s Bhagwan
Das Jagdish Chancier (supra) that "it is
clear that the contemplated action can
only be taken during the course of the
trial". (The said decision has been
10 referred to by the learned Single Judge
in the impugned judgment.) The other
decision cited by the High Court in the
judgment is Delhi Cloth and General
Mills Co. Ltd, (supra). In that case a
15 three Judge Bench considered yet
another facet of Section 20-A of the Act.
However, there is no indication in the
said decision that power under the
Section could be used at any stage
20 before trial commences.
In Municipal Corporation of Delhi v. R.
Sahai and ors. etc., AIR (1979) SC 1544
= [1979] 3 SCR 625, a two Judge Bench
of this Court has stated that the power
25 under Section 20-A can be exercised
only during trial. The relevant facts in
that case were that a magistrate
acquitted an accused and thereafter he
issued notice to the manufacturer
30 purportedly under Section 20-A of the
Act. When the said manufacturer
challenged the action of the magistrate
this Court laid emphasis to the words
"during trial of any offence", and
35 observed thus :
"The opening lines of Section 20-A
clearly contemplate a contingency
where the discretionary jurisdiction
under this Act can be exercised only
40 during the trial of any offence, that is to
say, the stage at which the Magistrate
can exercise the discretion under this
section must be before the trail has
concluded and ended in acquittal or
45 conviction"
Thus the position is clear that power
under Section 20-A cannot be invoked
before the stage of adducing evidence in
the trial, nor can it be invoked after the
50 conclusion of the trial. In the present
case, the magistrate has chosen to
exercise the power prematurely and
hence the action is without jurisdiction.
We, therefore, set aside the impugned
55 judgment of the High Court and that of
the Magistrate, However, we make it
clear that this judgment will not
preclude the magistrate from
considering the question afresh at the
60 appropriate stage.
160
 JIK Industries Ltd & Ors vs. Amarlal vs. Jumani and Anr 2012 (3) CTC 428
Objectives
1. To understand the scheme of Compounding of offence under NI Act and CrPC.
2. History of Compounding of Offence
3. Interpretation of S. 320 CrPC
JUDGMENT
A.K. Ganguly, J.
This group of appeals were heard
together as they involve common
questions of law. There are some factual
differences but the main argument by
5 the Appellant(s) in this matter was
advanced by Mr. Chander Uday Singh,
Senior Advocate on behalf of the Sharp
Industries Limited in SLP (Crl.) No.
6643-6651 of 2010 and the facts are
10 taken mostly from the said case.
The Learned Counsel assailed the
judgment of the High Court wherein by
a detailed judgment High Court
dismissed several criminal writ petitions
15 which were filed challenging the
processes which were issued by the
learned Trial Judge on the complaint
filed by the Respondents in proceedings
under Section 138 read with
20 Section 141 of Negotiable Instruments
Act, 1881 (hereinafter 'N.I. Act'). By
way of a detailed judgment, the High
Court after dismissing the writ petitions
held that sanction of a scheme under
25 Section 391 of the Companies Act, 1956
(hereinafter 'Companies Act') does not
amount to compounding of an offence
under Section 138 read with
Section 141 of the N.I. Act. The High
30 Court also held that sanction of a
scheme under Section 391 of the
Companies Act will not have the effect
of termination or dismissal of complaint
proceedings under Negotiable
35 Instruments Act. However, the learned
Judge made it clear that the judgment of
the High Court will not prevent the
Petitioners from filing separate
application invoking the provisions of
40 Section 482 Code of Criminal
Procedure, if they are so advised.
Assailing the said judgment the Learned
Counsel submitted that an unsecured
creditor who does not oppose the
45 scheme of compromise or arrangement
under Section 391 of the Companies Act
must be taken to have supported the
scheme in its entirety once such a
scheme is sanctioned by the High Court,
50 even a dissenting creditor cannot file a
criminal complaint under Section 138 of
the N.I. Act for enforcement of a pre-
compromise debt. Nor can such a
creditor oppose the compounding of
55 criminal complaint which was filed
under Section 138 of the Negotiable
Instruments Act in respect of pre-
compromise debt.
The material facts of the case are that
60 the Appellant company on or about 12th
May, 2005 came out with a scheme by
which it was agreed that the Appellant
company should be revived and
thereafter payments will be made to the
65 creditors. Pursuant to such scheme the
Appellant company filed a petition
under Section 391 of the Companies Act
to the High Court. The whole scheme
was placed before the High Court and
70 according to the Appellant(s), first order
of the scheme came to be passed by the
Hon'ble High Court by its order dated
161
 5th May, 2005 in Company Petition No.
92 of 2005. At the time the said
company petition was pending, a
meeting was convened by the Appellant
5 company on 1.6.05 and the same was
attended by several creditors including
representative of the first Respondents
and they opposed the scheme. Despite
the said opposition, the Appellant(s)
10 succeeded in getting the scheme
approved by statutory majority as
required under the law. Thereafter, on
17.11.2005 another company petition
with a fresh scheme (Company petition
15 No. 460 of 2005) was filed. After the
said company petition was filed all
proceedings which were initiated by
different companies against the
Appellant(s) came to be stayed by the
20 High Court. In view of the aforesaid
scheme the Appellant company filed
application for compounding under
Section 147 of the Negotiable
Instruments Act read with
25 Section 320 of the Criminal Procedure
Code (hereinafter, 'the Code') and
Section 391 of the Companies Act.
However, the Respondents opposed the
said prayer of the Petitioner and by an
30 order dated 19th January, 2007, the
learned Chief Judicial Magistrate,
Ahmednagar rejected the application
filed by the Appellant for termination of
the proceedings inter alia on the ground
35 that the learned Magistrate has no power
to quash or terminate the proceedings.
Being aggrieved by the said order of the
Magistrate, the Appellants filed writ
petitions before the High court.
40 In the background of the aforesaid facts
the contentions raised by the Appellant
company is that the scheme envisaged a
compromise between the company and
the secured creditors on the one hand
45 and its unsecured creditors on the other
hand. Such scheme was framed pursuant
to the order of the Company Court dated
5th May, 2005 which directed meeting
of the different classes of creditors for
50 consideration of the scheme. Thereafter,
meeting was convened of unsecured
creditors and the scheme was approved
on 1st June, 2005 by the requisite
majority of the shareholders and
55 unsecured creditors. Then the scheme
was taken up for sanction by the
Company Court. The Court considered
the objections of some of the unsecured
creditors and workmen but ultimately by
60 its judgment dated 17th November,
2005 approved the scheme with a few
minor modifications. It was also urged
that some of the secured and unsecured
creditors have taken advantage of the
65 scheme and did not challenge the
scheme. However, the scheme was
challenged by the Appellant(s) in
respect of certain observations made
therein by the learned Company Judge
70 and the said appeal is pending before the
Bombay High court. The Learned
Counsel for the Appellant(s) argued that
the effect of a scheme of compromise
between the company and its creditors
75 under Section 391 of the Companies Act
is binding upon all class of creditors
whether they are assenting or dissenting.
The purpose of a scheme under
Section 391 and 392 is restructure and
80 alteration of the old debts which were
payable prior to the scheme so as to
make the debts payable in the manner
and to the extent provided under the
scheme.
85 In so far as the case of JIK Industries is
concerned, the Learned Counsel urged
that the once the scheme is sanctioned, it
relates back to the date of the meeting
and in support of the said contention
90 reliance was placed on a judgment of the
Privy Council in the case of Raghubar
162
 Dayal v. The Bank of Upper India
Ltd. reported in AIR 1919 P.C. 9. It was
also urged that in a scheme under
Section 491 a judgment is in rem. The
5 Learned Counsel further submitted that
admittedly the Respondents objected to
the scheme and is a dissenting
creditor.The Learned Counsel for the
Respondents (in the case of JIK
10 Industries) has drawn the attention of
this Court to the order dated 3.10.2006
passed by the Metropolitan Magistrate,
XII Court Bandra, Mumbai whereby the
learned Magistrate passed an order on
15 the application of the accused, the
Appellant, for compounding of offences
under Section 138. By the said order the
learned Magistrate rejected the prayer
for compounding made by the
20 Appellant(s) under Section 147 of the
Negotiable Instruments Act.
It was also pointed out by some of the
Respondents that after the High Court
passed the impugned order whereby the
25 prayer for compounding by the
Appellant(s) was rejected and the
Appellant(s) were given an opportunity
to file a petition under Section 482 of
the Criminal Procedure Code for
30 quashing of the complaint, some of the
Appellant(s) availing of that liberty also
filed application for quashing of the
proceedings. They have also filed SLPs
before this Court. This Court should,
35 therefore, dismiss the SLPs.
Considering the aforesaid submissions
of the rival parties, this Court finds that
the effect of approval of a scheme of
compromise and arrangement under
40 Section 391 of the Companies Act is
that it binds the dissenting minority, the
company as also the liquidator if the
company is under winding up.
Therefore, Section 391 of the
45 Companies Act gives very wide
discretion to the Court to approve any
set of arrangement between the
company and its shareholders.
Learned Counsel for the Appellant(s)
50 placed reliance on the decision of this
Court in M/s. J.K. (Bombay) Private
Ltd. v. New Kaiser-I- Hind Spinning
and Weaving Company, Ltd., and
Ors. AIR 1970 SC 1041 in support of
55 his contention that a scheme under
Section 391 of the Companies Act is not
a mere agreement but it has a statutory
force. The Learned Counsel also urged,
relying on the said judgment that the
60 scheme is statutorily binding even on
dissenting creditors and shareholders.
The effect of the scheme is that so long
as it was carried out by the company by
regular payment in terms of the scheme,
65 a creditor is bound by it and cannot
maintain even a winding- up petition.
Even if the aforesaid position is
accepted the same does not have much
effect on any criminal proceedings
70 initiated by the Respondent creditors for
non-payment of debts of the company
arising out of dishonor of cheques.
Factually the allegation of the
Respondent is that even payment under
75 the scheme has not been made.
However, without going into those
factual controversies, the legal position
is that a scheme under Section 391 of
the Companies Act does not have the
80 effect of creating new debt. The scheme
simply makes the original debt payable
in a manner and to the extent provided
for in the scheme. In the instant appeal
in most of the cases the offence under
85 the N.I. Act has been committed prior to
the scheme. Therefore, the offence
which has already been committed prior
to the scheme does not get automatically
compounded only as a result of the said
90 scheme. Therefore, even by relying on
163
 the ratio of the aforesaid judgment, this
Court cannot accept the Appellant's
contention that the scheme under
Section391 of the Companies Act will
5 have the effect of automatically
compounding the offence under the
Negotiable Instruments Act.
In the case of Administrator of the
Specified Undertaking of the Unit
10 Trust of India and Anr. v. Garware
Polyester Ltd. (2005) 10 SCC 682, this
Court held that a scheme under
Section391 of the Companies Act is a
commercial document and the principles
15 laid down in the case of Mafatlal (supra)
have been relied upon and in para 32 at
page 697 of the report it has been
reiterated that the scheme must be fair,
just and reasonable and should not
20 contravene public policy or any
statutory provision and in paragraph 33
at page 697 of the report, sub-paragraph
6 of para 29 of Mafatlal (supra) has been
expressly quoted and approved.
25 Therefore, the main argument of the
Learned Counsel for the Appellant(s)
that once a scheme under Section 391of
the Companies Act is sanctioned by the
Court the same operates as
30 compounding of offence under
Section 138read with Section 141 of the
N.I. Act cannot be accepted.
The Learned Counsel also relied on a
few other judgments in order to contend
35 the scheme of compromise operates a
statutory consent and the same will have
the effect of restructuring legally
enforceable debts or liabilities of the
company. In support of the said
40 contention reliance was placed on the
judgment of this Court in the case
ofBalmer Lawrie Workers' Union,
Bombay and Anr. v. Balmer Lawrie
and Company Ltd. and Ors. reported
45 in 1984 (Supp.) SCC 663. That decision
related to a settlement reached in a
proceeding under Industrial Disputes
Act in which a representative union was
a party. The Court held that such a
50 settlement is binding on all the workmen
of the undertaking. This Court fails to
understand the application of this ratio
to the facts of the present case.
Mr. K. Parameshwar, Learned Counsel
55 appearing for the Respondent in special
leave petition Nos. 4445- 4454/2009
argued that the impugned judgment of
the High Court is based on correct
principles inasmuch as the effect of a
60 Scheme under Section 391 of the
Companies Act can only be made
applicable to a civil proceeding and it
cannot affect criminal liability. Learned
Counsel further submitted that under the
65 criminal law there is nothing known as
deemed compounding. It was further
urged that under the very concept of
compounding, it cannot take place
without the explicit consent of the
70 complainant or the person aggrieved. It
was also urged that in the instant case
the offence has been completed prior to
the scheme under Section 391 of the
Companies Act was sanctioned by the
75 Court. Learned Counsel distinguished
between a Scheme under
Section 391 and an act of compounding
by urging that a Scheme under
Section 391 can at most be a Scheme to
80 forego a part of a debt or to restructure
the payment schedule of a debt but the
act of compounding an offence must
proceed on the basis of the consent of
the person compounding and his consent
85 cannot be assumed under any situation.
Learned Counsel further submitted that
the impugned judgment of the High
Court correctly formulated the principle
of compounding by holding that the act
90 of compounding involves an element of
164
 mutuality and it has to be bilateral and
not unilateral.
This Court finds lot of substance in the
aforesaid submission.
5 Compounding of an offence is
statutorily provided under
Section 320 of the Code. If we look at
the list of offences which are specified
in the Table attached to Section320 of
10 the Code, it would be clear that there are
basically two categories of offences
under the provisions of Indian Penal
Code which have been made
compoundable. There is a category of
15 offence for the compounding of which
leave of the Court is required and there
is another category of offences where
for compounding the leave of the Court
is not required. But all cases of
20 compounding can take place at the
instance of persons mentioned in the
Third Column of the Table. If the said
Table is perused, it will be clear that
compounding can only be possible at the
25 instance of the person who is either a
complainant or who has been injured or
is aggrieved. Sub-sections 4 (a) and 4
(b) of Section 320 also reiterate the
same principle that in case of
30 compounding, the person competent to
compound, must be represented in a
manner known to law. If the person
compounding is a minor or an idiot or a
lunatic, the person competent to contract
35 on his behalf may, with the permission
of the Court, compound the offence.
Legislature has, therefore, provided that
if the aforesaid category of person was
suffering from some disability, a person
40 to represent the aforesaid category of
persons is only competent to compound
the offence and in such cases the
permission of the Court is statutory
required. Section 320(4)(b) also
45 reiterates the same principle by
providing that when a person who is
otherwise competent to compound an
offence is dead, his legal
representatives, as defined under the
50 Code of Civil Procedure may, with the
consent of the Court, compound such
offence.
Therefore, representation of the person
compounding has been statutorily
55 provided in all situations.
Sub-section (9) of Section 320 which is
relevant in this connection is set out
below: No offence shall be compounded
except as provided by this section.
60 Section 147 of the Negotiable
Instrument Act reads as follows: 147.
Offences to be compoundable. -
Notwithstanding anything contained in
the code of Criminal Procedure, 1973 (2
65 of 1974), every offence punishable
under this Act shall be compoundable.
Relying on the aforesaid non-obstante
clause in Section 147 of the N.I. Act,
Learned Counsel for the Appellant
70 argued that a three-Judge Bench
decision of this Court in Damodar
(supra), held that in view of non-
obstante clause in Section 147 of N.I.
Act, which is a special statute, the
75 requirement of consent of the person
compounding in Section320 of the Code
is not required in the case of
compounding of an offence under
Negotiable Instruments Act. This Court
80 is unable to accept the aforesaid
contention for various reasons which are
discussed below.
The impact of a 'non-obstante clause' on
the concerned act was considered by this
85 Court in many cases and it was held that
the same must be kept measured by the
legislative policy and it has to be limited
165
 to the extent it is intended by the
Parliament and not beyond that.
[See ICICI Bank Ltd. v. Sidco
Leathers Ltd. and Ors. (2006) 10 SCC
5 452 37 466]. In the instant case the non-
obstante clause used in Section 147 of
Negotiable Instruments Act does not
refer to any particular section of the
Code of Criminal Procedure but refers
10 to the entire Code. When non-obstante
clause is used in the aforesaid fashion
the extent of its impact has to be found
out on the basis of consideration of the
intent and purpose of insertion of such a
15 clause.
Section 147 in Negotiable Instruments
Act came by way of amendment. From
the Statement of Objects and Reasons of
Negotiable Instrument (Amendment)
20 Bill 2001, which ultimately became Act
55 of 2002, these amendments were
introduced to deal with large number of
cases which were pending under the N.I.
Act in various Courts in the country.
25 Considering the said pendency, a
Working Group was constituted to
review Section 138 of the N.I. Act and
make recommendations about changes
to deal with such pendency.
30 Pursuant to the recommendations of the
Working Group, the aforesaid Bill was
introduced in Parliament and one of the
amendments introduced was "to make
offences under the Act compoundable".
35 Pursuant thereto Section 147 was
inserted after Section 142 of the old Act
under Chapter II of Act 55 of 2002.
It is clear from a perusal of the aforesaid
Statement of Objects and Reasons that
40 offence under the N.I. Act, which was
previously non- compoundable in view
of Section 320 Sub-section 9 of the
Code has now become compoundable.
That does not mean that the effect of
45 Section 147 is to obliterate all statutory
provisions of Section 320 of the Code
relating to the mode and manner of
compounding of an offence.
Section 147 will only override
50 Section 320 (9) of the Code in so far as
offence under Section 147 of N.I. Act is
concerned. This is also the ratio in
Damodar (supra), see para
In this connection, we may refer to the
55 provisions of Section 4 of the Code.
Section 4 of the Code, which is the
governing statute in India for
investigation, inquiry and trial of
offences has two parts. Section 4 Sub-
60 section (1) deals with offences under the
Indian Penal Code. Section 4 Sub-
section (2) deals with offences under
any other law which would obviously
include offences under the Negotiable
65 Instruments Act. (See 2007 Crl. Law
Journal 3958)
In the instant case no special procedure
has been prescribed under the N.I. Act
relating to compounding of an offence.
70 In the absence of special procedure
relating to compounding, the procedure
relating to compounding under
Section 320 shall automatically apply in
view of clear mandate of Sub-section (2)
75 of Section 4 of the Code.
Sub-section (2) of Section 4 of the code
is set out below:
4(2) All offences under any other law shall
be investigated, inquired into, tried, and
80 otherwise dealt with according to the same
provisions, but subject to any enactment
for the time being in force regulating the
manner or place of investigating, inquiring
into, trying or otherwise dealing with such
85 offences.
166
 In view of Section 4 (2) of the Code, the
basic procedure of compounding an
offence laid down in Section 320 of the
Code will apply to compounding of an
5 offence under Negotiable Instruments
Act.
In Vinay Devanna Nayak v. Ryot
Sewa Sahakari Bank Limited (2008) 2
SCC 305, this Court also considered the
10 object behind the insertion of
Section 138 of the Negotiable
Instruments Act by Banking Financial
Institutions and Negotiable Instruments
(Amendment) Act 1988. This Court
15 held:
...The incorporation of the
provision is designed to
safeguard the faith of the
creditor in the drawer of the
20 cheque, which is essential to the
economic life of a developing
country like India. The provision
has been introduced with a view
to curb cases of issuing cheques
25 indiscriminately by making
stringent provisions and
safeguarding interest of
creditors.
(para 16, page 309 of the report)
30 The Court also looked into the
scope of Section 147 of the N.I.
Act, and held after considering
the two sections, that there is no
reason to refuse compromise
35 between the parties. But the
Court did not hold that in view
of Section147, the procedure
relating to compounding under
Section 320 of the Code has to
40 be given a go bye.
Subsequently in the case of R.
Rajeshwari v. H.N Jagadish reported
in (2008) 4 SCC 82, another Bench of
this Court also construed the provisions
45 of Section 147 of the Negotiable
Instruments Act, as well as those of
Section 320 of the Code. Here also it
was not held that all the requirements of
Section 320 of the Code for
50 compounding were to be given a go bye.
Both these aforesaid decisions were
referred to and approved in Damodar
(supra). The decision in Damodar
(supra) was rendered by referring to
55 Article 142 of the Constitution insofar
as guidelines were framed in relation to
compounding for reducing pendency of
138 cases. In doing so the Court held
that attempts should be made for
60 compounding the offence early.
Therefore, the observations made in
paragraph 24 of Damodar (supra), that
the scheme contemplated under
Section 320 of the Code cannot be
65 followed 'in the strict sense' does not
and cannot mean that the fundamental
provisions of compounding under
Section 320 of the Code stand
obliterated by a side wind, as it were.
70 It is well settled that a judgment is
always an authority for what it decides.
It is equally well settled that a judgment
cannot be read as a statute. It has to be
read in the context of the facts discussed
75 in it. Following the aforesaid well
settled principles, we hold that the basic
mode and manner of effecting the
compounding of an offence under
Section 320 of the Code cannot be said
80 to be not attracted in case of
compounding of an offence under
Negotiable Instruments Act in view of
Section 147 of the same.
Compounding as codified in
85 Section 320 of the Code has a historical
background. In common law
167
 compounding was considered a
misdemeanor. In Kenny's 'Outlines of
Criminal Law' (Nineteenth Edition,
1966) the concept of compounding has
5 been traced as follows:
It is a misdemeanor at common law to
'compound' a felony (and perhaps also to
compound a misdemeanor); i.e. to bargain,
for value, to abstain from prosecuting the
10 offender who has committed a crime. You
commit this offence if you promise a thief
not to prosecute him if only he will return
the goods he stole from you; but you may
lawfully take them back if you make no
15 such promise. You may show mercy, but
must not sell mercy. This offence of
compounding is committed by the bare act
of agreement; even though the
compounder afterwards breaks his
20 agreement and prosecutes the criminal.
and inasmuch as the law permits not
merely the person injured by a crime, but
also all other members of the community,
to prosecute, it is criminal for anyone to
25 make such a composition; even though he
suffered no injury and indeed has no
concern with the crime.
Russell on Crime (Twelfth Edition) also
describes: Agreements not to prosecute
30 or to stifle a prosecution for a criminal
offence are in certain cases criminal.
(Chapter 22 - Compounding Offences,
page 339)
Later on compounding was permitted in
35 certain categories of cases where the
rights of the public in general are not
affected but in all cases such
compounding is permissible with the
consent of the injured party.
40 In our country also when the Criminal
Procedure Code, 1861 was enacted it
was silent about the compounding of
offence. Subsequently, when the next
Code of 1872 was introduced it
45 mentioned about compounding in
Section 188by providing the mode of
compounding. However, it did not
contain any provision declaring what
offences were compoundable. The
50 decision as to what offences were
compoundable was governed by
reference to the exception to
Section 214 of the Indian Penal Code.
The subsequent Code of 1898 provided
55 Section 345 indicating the offences
which were compoundable but the said
Section was only made applicable to
compounding of offences defined and
permissible under Indian Penal code.
60 The present Code, which repealed the
1898 Code, contains
Section 320containing comprehensive
provisions for compounding. A perusal
of Section 320 makes it clear that the
65 provisions contained in Section 320 and
the various Sub-sections is a Code by
itself relating to compounding of
offence. It provides for the various
parameters and procedures and
70 guidelines in the matter of
compounding. If this Court upholds the
contention of the Appellant that as a
result of incorporation of Section 147 in
the Negotiable Instruments Act, the
75 entire gamut of procedure of
Section 320 of the Code are made
inapplicable to compounding of an
offence under the N.I. Act, in that case
the compounding of offence under
80 Negotiable Instruments Act will be left
totally unguided or uncontrolled. Such
an interpretation apart from being an
absurd or unreasonable one will also be
contrary to the provisions of
85 Section 4(2) of the Code, which has
been discussed above. There is no other
statutory procedure for compounding of
offence under N.I. Act. Therefore,
Section 147 of the Negotiable
90 Instruments Act must be reasonably
168
 construed to mean that as a result of the
said Section the offences under N.I. Act
are made compoundable, but the main
principle of such compounding, namely,
5 the consent of the person aggrieved or
the person injured or the complainant
cannot be wished away nor can the same
be substituted by virtue of
Section 147 of N.I. Act.
20
10 For the reasons aforesaid, this Court is
unable to accept the contentions of the
Learned Counsel for the Appellant(s)
that as a result of sanction of a scheme
under Section 391 of the Companies Act
15 there is an automatic compounding of
offences under Section 138 of the
Negotiable Instruments Act even
without the consent of the complainant.
169
 Guerrero Lugo Elvia Grissel and ors vs The State of Maharashtra 2012
Cri.L.J.1136 (Bom)
Objectives:
1. To understand the origin of plea bargaining
2. To understand the concept of Plea Bargaining
A.M. Khanwilkar, J.
This matter raises pure question of law as
to the interpretation of Section 265-E of
5 the Code of Criminal Procedure, 1973, in
particular clause (d) thereof. The
petitioners were arrested by DCB, C.I.D.,
Unit XII, in connection with C.R. No.
77/2010 on 26th August, 2010 at Dubai for
10 having committed offence under Sections
380 and 34 of the Indian Penal Code.
Shorn of details, the prosecution case is
that
(a) An International Jewellery Exhibition
15 was held at Mumbai Exhibition Centre,
Goregaon (E), Mumbai, between 19th
August, 2010 and 23rd August, 2010. A
Jewellery Company of Hongkong by name
Daluwi Diamonds had also installed its
20 stall thereat. One Goy Yehskil Yas, an
Israel National, the complainant, was
looking after the stall of Dalumi Diamonds
along with his associates Kobi and Henry,
both foreign nationals.
25 (b) That on 23rd August, 2010, at about
3.30 P.M., when the complainant was busy
in winding up and putting the Diamonds in
boxes, one unknown person came to the
stall and diverted the attention of Kobi,
30 who later found one diamond box worth
Rs. 6,60,85,000/-missing. The complainant
lodged his complaint with Goregaon (E)
Police Station which was registered vide
C.R. No. 251/10 under Section 380 read
35 with Section 34 of the Indian Penal Code.
The case was transferred to DCB, CID, on
24th August, 2010 and registered as C.R.
No. 77/2010.
(c) The accused were arrested at Dubai
40 International Airport by Dubai Police on
25th August, 2010 along with diamonds
and gold ornaments valued at Rs.
3,00,00,000/-and brought to Mumbai by
DCB, CID, Unit 12.
45 (d) In the meantime on 25th August, 2010,
DRI, Mumbai, intercepted a box
containing 1641 diamonds and other
articles which were booked to Italy
through Air Courier, DHL, on 23rd
50 August, 2010 at the Airport. The wanted
accused had booked the said box. The
diamonds recovered by DRI are valued at
Rs. 3,60,85,000/-. Thus, the entire
diamonds have been recovered.
55 (e) The prosecution claims to have verified
the footage of C.C.TV camera installed at
the Exhibition site and found some of the
accused near the stall of the complainant at
the material time.
60 In this backdrop, the petitioners were
arrested on 26th August, 2010 in
connection with the alleged offence. After
carrying out investigation, the police filed
charge-sheet against the accused
65 (petitioners). The petitioners had applied
for bail, which was, however, rejected on
4th December, 2010. Since the petitioners
were more than convinced that the trial of
the case would take quite some time, and
70 the petitioners, being foreign nationals
from Mexico, were keen to return back to
their home countries at the earliest, they
decided to move an application under
Section 265-B of the Code, for plea-
75 bargaining. The said application was filed
on 22nd December, 2010. Besides, the
petitioners filed separate affidavits, stating
170
 that they have filed the application for
plea-bargain after understanding the nature
and extent of punishment provided under
law for the offence. Further, they have
5 filed the said application voluntarily. They
asserted that they have not been convicted
previously by any Court of the same
offence with which they have been
charged and facing trial.
10 Consequent to filing of the aforesaid
application and affidavit by each of the
petitioners, the designated Metropolitan
Magistrate interviewed the petitioners and
recorded their plea under Section 265-B(4)
15 of the Code of Criminal Procedure in
camera through interpreter, as the
petitioners were familiar only with Spanish
Language. In the course of their statement,
each of them, when called upon to indicate
20 as to whether they were aware that they
may be sentenced to one-fourth of the
maximum punishment or one-half of the
minimum punishment, in addition to the
payment of the compensation, if any, they
25 have, in no uncertain terms, stated that
their lawyer had informed them that they
will be sentenced with one-fourth of the
maximum punishment or one-half of the
minimum punishment specified for the
30 stated offence.
Thereafter, the Additional Chief
Metropolitan Magistrate examined the plea
of the accused, as required under Section
265-B(4) of the Code, and recorded his
35 satisfaction that, from the plea of the
accused, they have moved the application
for plea-bargaining voluntarily and
without any sort of pressure on them.
Accordingly, the Magistrate kept the case
40 for hearing to work out a mutually
satisfactory disposition of the case.
Consequent thereto, the process of arriving
at mutually satisfactory disposition was
taken forward and culminated in filing of
45 report jointly signed by the Special Public
prosecutor and Investigating Officer of the
case under Section 265-B of the Code.
In the context of the issue that arises in this
matter, we deem it apposite to advert to the
50 relevant clauses of the said report, which
read thus:
The parties followed the guidelines given
under section 265-C and finally arrived at
the mutually satisfactory disposition. The
55 complainant and the accused filed their
reports of mutually satisfactory disposition
before the Court in writing.
The complainant claimed that he had
received Rs. 55 lakhs in cash at Hong
60 Kong and that he had accepted the said
money from the accused as satisfactory
disposition as compensation.
As agreed, the accused are willing to
deposit Rs. 5 lakhs in the Court as
65 expenses incurred during the case by the
State. The State is agreeable to the
disposition and the said money may be
deposited with the Registrar of the Court
on behalf of the State of Maharashtra.
70 Under section 265-E, the court shall
dispose of the case in the manner provided
under the section as sub-section (a) and
(b) are not applicable to the accused. The
benefit of releasing the accused on
75 probation of good conduct under the
Probation of Offenders Act is not attracted
as the crime is exceptional and daring
committed in India by foreigners.
The case of the applicant falls under
80 section 265-E(d) as the offence committed
by the accused is punishable with 7 years,
the court may sentence the accused to one-
fourth of the punishment provided or
extendable, i.e. offences under sections
85 380, 34, 109, 120(B) of IPC.
The property, i.e. the stolen diamonds
from Dalumi Diamonds, Hongkong valued
at 6.73 crores are recovered at the instance
of the arrested accused and also the wanted
90 accused. In the above circumstances, the
Hon. Court may deliver the judgment in
171
 terms of section 265(F) by convicting the
accused for 1/4th of the maximum
punishment extendable i.e. 7 years, which
comes to 21 months. The Court may give
5 the benefit of set-off period i.e. 8 months
10 days, which is undergone by the
accused. The Court may convict and
sentence accused for the remaining period
of 12 months 20 days in addition to the
10 compensation to the complainant and the
expenses to the State of Maharashtra, as
the final satisfactory disposition of the
'Plea Bargaining'.
The matter proceeded before the
15 Additional Chief Metropolitan Magistrate,
who recorded his satisfaction that the
accused have moved the application for
plea-bargaining voluntarily and without
any sort of pressure on them.
20 The matter was then placed for hearing
before the Additional Chief Metropolitan
Magistrate, as required under Section 265-
E of the Code. The Magistrate, vide
impugned judgment and order dated 24th
25 May, 2011, noted that it is already stated
in the order of Report of the Mutually
Satisfactory Disposition of the matter, the
case is not that of the kind which should be
dealt with in accordance with clause (b) of
30 Section 265-E of the Code by giving the
benefit of Section 360 of the Code or the
Probation of Offenders Act, looking into
the nature of the offence and the value of
the property involved. The Court,
35 therefore, heard the parties on the quantum
of sentence. The argument of the
petitioners before the Magistrate was that
the entire stolen property has been
returned or proposed to be returned to the
40 complainant, and, in addition to that, the
complainant is already paid the
compensation to the tune of Rs. 55 lakhs.
As a result, the loss of the complainant is
sufficiently compensated. Further, all the
45 accused are in jail right from the date of
their arrest, i.e., 26th August, 2010.
Moreover, the State has also been
compensated to the tune of Rs. 5 lakhs on
account of expenditure of the
50 investigation, etc. It was argued that,
keeping in mind all these aspects, even if
the prosecution was to prove guilt of the
accused at the end of the trial, the Court,
normally, would impose sentence with
55 imprisonment of two years and not up to
the maximum imprisonment of seven
years. On this premise, in exercise of
power under Section 265-E(d) of the Code,
the Court ought to award imprisonment of
60 one-fourth of two years' period, which,
normally, the accused would have
received, in which case, the sentence to be
awarded to the petitioners would come to
six months.
65 Besides this argument, relying on the
expression "may" and "provided or
extendable", it was argued on behalf of the
petitioners that the same denotes that the
Court has discretion to award sentence,
70 which can be for a period less than one-
fourth of the punishment provided or
extendable. According to the petitioners,
the purpose of introducing Chapter of Plea
Bargaining by Amendment Act 2 of 2006
75 was to end uncertainty, save litigation
costs and anxiety costs, to reduce back-
breaking burden of the Court case and also
to reduce the congestion in jails.
Considering all these aspects, a purposive
80 interpretation is warranted.
The Special Public Prosecutor, on the
other hand, argued that the Court had no
discretion in the matter of sentencing
where the guilt is admitted by way of plea-
85 bargaining. The Court is bound to sentence
the accused with one-fourth of the
punishment provided or extendable and
not lesser punishment than that.
The Magistrate agreed with the submission
90 of the Special Public Prosecutor that
accepting the argument of the petitioners
would result in re-writing of clause (d) of
Section 265-E of the Code. The Magistrate
opined that the two words "provided" and
95 "extendable" used in the said provision
172
 were joined with conjunction "or". That
means that the Court may sentence the
accused with one-fourth of the punishment
"provided" or with one-fourth of the
5 punishment "extendable". On this
reasoning, the Magistrate noted that the
Court has no discretion to sentence the
accused with lesser punishment than one-
fourth of the punishment, provided if it is
10 fixed punishment under law and one-
fourth of the punishment extendable if the
law prescribes extendable punishment up
to a fixed limit.
As regards the first argument of the
15 petitioners that the Court, upon proving the
guilt on merit, would have imposed only
two years of sentence, the Magistrate took
the view that the same was presumptuous
argument. Instead, he held that the
20 allegations in the charge-sheet indicated
that the offence took place in a systematic,
planned manner and was a daring
operation by foreigners in India in respect
of high value property (diamonds worth
25 Rs. 6.73 crores). In such a case, there was
rare possibility of showing leniency in the
sentence upon proving the guilt. On the
above basis, the Magistrate proceeded to
hold that the sentence to be imposed on the
30 petitioners will be one-fourth of the
maximum imprisonment provided under
Section 380 of the Indian Penal Code,
which comes to 21 months. This decision
of the Magistrate is the subject-matter of
35 challenge in the present Writ Petition at
the instance of the accused.
Even the Report of the Mutually
Satisfactory Disposition under Section
265-D of the Code re-states the position
40 that the petitioners entered into mutually
satisfactory disposition with full
understanding that, upon conviction, they
would be sentenced for one-fourth of the
maximum punishment extendable, i.e., 7
45 years, which comes to 21 months.
Notably, even the grounds of challenge in
the Writ Petition are of limited import.
Firstly, it is urged that the complainant as
well as the accused persons are foreigners.
50 No loss is caused to the society, and the
stolen property has been recovered, which
will be returned to the complainant.
Secondly, in the plea-bargaining, the
petitioners have stated that all the accused
55 want to return to their own countries as
early as possible. Thirdly, the accused
have already compensated the complainant
by paying Rs. 55 lakhs, and the
complainant has filed affidavit that he has
60 no grievance against accused persons and
is willing to compound the offence.
Fourthly, the accused have already
compensated the State by paying Rs. 5
lakhs. Fifthly, the Magistrate has not
65 applied his mind while awarding sentence
under Section 265-E(d) of the Code. As
per that provision, the Magistrate could
have awarded lesser sentence to the extent
already undergone by the accused. Sixthly,
70 the accused persons are foreigners, and, till
the filing of the petition, they have
undergone more than 10 months' custody.
Seventhly, Section 265-E(d) does not limit
the power of the Court to grant minimum
75 sentence. This aspect has been glossed
over by the Magistrate. Further,
considering the main object of plea-
bargaining, if the Court were to give
maximum sentence, then, no accused will
80 come forward for plea-bargaining.
Eighthly, accused No. 1 is a female, and
she is having two-years' young child. She
is wife of accused No. 4.
During the course of arguments, however,
85 the counsel for the petitioners, besides
arguing on interpretation of Section 265-E
of the Code, has faintly argued that the
Magistrate has completely failed to
examine the possibility of invoking
90 Section 360 of the Code or the provisions
of the Probation of Offenders Act, 1958 or
any other law for the time being in force,
which will be applicable to the case of the
petitioners for releasing them on probation
95 or providing benefit of any other law, as
the case may be. That argument, in our
173
 view, is not open to the petitioners, as they
have not challenged the order passed by
the Court on mutually satisfactory
disposition. Further, the Court has rightly
5 noted that the facts of this case do not
warrant invoking clause (b) of Section
265-E of the Code. Needless to observe
that the said report was submitted on the
basis of consensual disposition agreed by
10 the accused. In any case, the Magistrate
proceeded to hold that, looking into the
nature of the offence and the systematic,
planned manner and the daring operation
by foreigners in India in respect of high
15 value property (diamonds worth Rs. 6.73
crores), the question of invoking the
benefit of Section 360 of the Code or the
provisions of the Offenders Act does not
arise. We have no hesitation in upholding
20 the said finding recorded by the
Magistrate.
That leaves us with the questions, firstly,
as to the interpretation of Section 265-E of
the Code and, secondly, whether, in the
25 fact situation of the present case, the
sentence awarded by the Magistrate of 21
months' imprisonment to the accused is
just and proper.
We are conscious of the fact that the
30 Magistrate has opined that Section 265-E
of the Code, in particular clause (d)
thereof, gives no discretion to the Court to
award sentence lesser than one-fourth of
the punishment provided or extendable, as
35 the case may be; but, at the same time,
while considering the first argument of the
petitioners noted in paragraph two of the
impugned decision, the Magistrate
proceeded to hold that the same was
40 presumptuous argument. While dealing
with the said argument, the Magistrate has
opined that, looking at the systematic,
planned manner and daring operation by
foreigners in India in respect of high value
45 of stolen property, there was rare
possibility of showing leniency in
sentencing the accused in such a case, if
the guilt was to be proved at the end of the
trial. In other words, in the facts and
50 circumstances of the present case, the
Magistrate was of the opinion that
awarding sentence of 21 months was just
and proper, even though the accused have
pleaded guilty and opted for plea-
55 bargaining, as can be discerned from the
observations in paragraphs 7 and 8 of the
impugned decision. On upholding this
finding, it may not be necessary for us to
dwell upon the wider question raised by
60 the petitioners in the fact situation of this
case.
265-E. Disposal of the case.--Where a satisfactory
disposition of the case has been worked out under
section 265-D, the Court shall dispose of the case
65 in the following manner, namely:-
(a) the Court shall award the compensation to the
victim in accordance with the disposition under
section 265-D and hear the parties on the quantum
of the punishment, releasing of the accused on
70 probation of good conduct or after admonition
under section 360 or for dealing with the accused
under the provisions of the Probation of Offenders
Act, 1958 (20 of 1958) or any other law for the time
being in force and follow the procedure specified in
75 the succeeding clauses for imposing the punishment
on the accused;
(b) after hearing the parties under clause (a), if the
Court is of the view that section 360 or the
provisions of the Probation of Offenders Act, 1958
80 (20 of 1958) or any other law for the time being in
force are attracted in the case of the accused, it
may release the accused on probation or provide
the benefit of any such law, as the case may be;
(c) after hearing the parties under clause (b), if the
85 Court finds that minimum punishment has been
provided under the law for the offence committed
by the accused, it may sentence the accused to half
of such minimum punishment;
(d) in case after hearing the parties under clause
90 (b), the Court finds that the offence committed by
the accused is not covered under clause (b) or
clause (c), then, it may sentence the accused to
one-fourth of the punishment provided or
extendable, as the case may be, for such offence.
95 On a bare reading of this provision, it is
noticed that, where a satisfactory
disposition of the case has been worked
174
 out under Section 265-D, the Court has to
dispose of the case in the manner provided
in this provision. As per clause (a), the
Court has to hear the parties on the
5 quantum of punishment, releasing of the
accused on probation of good conduct or
after admonition under Section 360 or for
dealing with the accused under the
provisions of the Probation of Offenders
10 Act or any other law for the time being in
force and following procedures specified
in the succeeding clauses for imposing
punishment on the accused. Once, after
hearing the parties, the Court is of the
15 opinion that the fact situation of the case
does not warrant releasing the accused on
probation of good conduct or after
admonition under Section 360 of the Code
deal with the accused under the provisions
20 of the Probation of Offenders Act, clause
(b) will have no application to such a case.
In that case, the Court, then, has to
consider whether the facts of that case are
covered by clause (c). If the offence in
25 question provides for minimum
punishment, the said clause would be
attracted. In any other case covered by
Chapter XXI-A of the Code, clause (d),
which is the residuary clause, would be
30 applicable. In the present case, the Court
has found that clauses (b) and (c) of
Section 265-E of the Code have no
application to the case on hand. We are in
agreement with the said opinion. Thus, the
35 case is governed by clause (d) of the said
section.
The question regarding concessional
treatment for offenders who, on their own
initiative, proceed to plead guilty without
40 any bargaining, was examined by the Law
Commission of India in its One Hundred
and Forty-Second Report. In clause 9.32 of
this Report, it is recommended that, in
cases where the Competent Authority
45 forms the opinion that, having regard to
the gravity of the offence and the
circumstances of the case viewed in
totality, the ends of justice demand that
substantive sentence of imprisonment in
50 jail deserves to be imposed on an offender
who pleads guilty whilst invoking the
scheme for concessional treatment. For
that, appropriate guidelines will have to be
formulated. In clause 9.33 of the same
55 Report, it has been noted that since it is
considered inadvisable to adopt the
scheme for plea-bargaining which obtains
in U.S.A. for weighty reasons in the
context of the prevailing condition in
60 India, a practical difficulty requires to be
overcome. The Law Commission,
therefore, recommended that some other
formula must be evolved in order to make
the scheme reasonably attractive or
65 workable. That formula must appear to be
just, fair, proper and acceptable.
Chapter X of the said Report deals with
how the proposed scheme overcomes the
objections and apprehensions entertained
70 by those who doubt the feasibility of the
concept. ….
RECOMMENDATIONS
The Commission, therefore, recommends
that a scheme for concessional treatment to
75 offenders willing to plead guilty on their
own volition without any plea-bargaining
or higgle haggling as outlined in Chapter
IX (highlights whereof are set out
hereunder) be statutorily introduced by
80 adding a Chapter in the Code of Criminal
Procedure of 1973.
Highlights of the Scheme
(1) The scheme may be invoked only by
the offender himself. (See para 9.6).
85 (2) There will be no negotiations for plea-
bargaining with the prosecuting agency or
its advocate none of whom will have any
role to play in the matter of moving the
Competent Authority for invocation of the
90 scheme. (See para 9.7).
(3) The Competent Authority will be a
'plea-judge' designated by the Chief Justice
175
 of the concerned High Court from amongst
the sitting judges competent to try cases
punishable with imprisonment of upto 7
years. And a Bench of two retired High
5 Court Judges nominated in this behalf by
the Chief Justice of the State concerned in
respect of offences punishable with
imprisonment for 7 years or more. (See
paras 9.3 and 9.5).
10 (4) The application will be entertained
only after the Competent Authority is,
upon ascertaining in the manner specified
in the scheme, is satisfied that it is made
voluntarily and knowingly. (See paras 9.15
15 and 9.16).
(5) The Competent Authority will hear the
application in the presence of the
aggrieved party and the public prosecutor
or an assistant public prosecutor and after
20 affording a short hearing to them. (See
paras 9.17 & 9.18).
(6) The Competent Authority shall have
the power to impose a jail term, and/or fine
and/or direct the accused applicant to pay
25 compensation to the aggrieved party for
compounding the offence in regard to the
offences which are compoundable with or
without the leave of the Court. (See paras
9.17 (iii) and 9.27).
30 (7) The Competent Authority shall award a
minimum jail term of say six months or
one year in respect of specified offences if
the scheme is extended in this behalf in the
light of the provision in the scheme.
35 (8) The Competent Authority may award a
jail term not exceeding one half of the
maximum provided by the relevant
provision where the Competent Authority
is not called upon to exercise the powers to
40 release on probation under the Probation
of Offenders Act or under section 360 of
the Code of Criminal Procedure in
accordance with the guidelines. (See paras
9.24, 9.32, 9.33).
45 (9) In the first instance, as an experimental
measure, the scheme may be made
applicable only to offences which are
liable for punishment with imprisonment
of less than seven years and/or fine if both
50 the Central and the State Government so
resolves by notification issued by such
Government and published in Government
gazette. (See paras 8.4 and 9.37).
(10) The scheme may be made applicable
55 to offences liable to be punished with
imprisonment for 7 years and more after
properly evaluating and assessing the
results of the application of the scheme to
offences liable to be punished with
60 imprisonment for less than 7 years. (See
paras. 8.4, 8.6 and 9.37).
As regards the expression "provided or
extendable" occurring in Section 265-E(d),
we uphold the opinion of the Magistrate
65 that the same are joined with conjunction
"or" -which means the Court may sentence
the accused with one-fourth of the
punishment "provided" or with one-fourth
of the punishment "extendable" by the
70 principal provision in the substantive law.
In that, these two different terminologies
were necessary, as, in some offences, the
punishment is extendable up to maximum
of certain term, and, in other set of
75 offences, the punishment is not extendable
but fixed quantum is provided.
We cannot be oblivious to the background
in which the enactment in question has
been introduced. The Law Commission, in
80 no uncertain terms, observed that
guidelines and procedure will have to be
incorporated in the Code of Criminal
Procedure in respect of scheme for
concessional treatment to offenders who
85 plead guilty on their own volition in lieu of
a promise to reduce the charge, to drop
some of the charges or getting lesser
punishment. In our view, if the provision
was to be interpreted to have invested
90 discretion in the Court to decide on the
quantum of sentence, it would introduce an
176
 environment of uncertainty in awarding
sentence. That may shake public
confidence and would be counter-
productive. It would also encourage
5 accused persons gaining impression that
they can get away with the specified
offences, on paying compensation, if
caught by the police and prosecuted. It
would result in a situation -"slap first, then
10 say sorry, and get away lightly by paying
compensation". That is not what was
envisaged by the Law Commission or the
Parliament while enacting Chapter XXI-A
of the Code. The intent behind Chapter
15 XXI-A of the Code, although, was to help
the litigant to end uncertainty, save
litigation costs and anxiety costs, as also to
reduce back-breaking burden of the Court
and to reduce the congestion in jails; but,
20 at the same time, a conscious decision is
taken that we have to depart from the
scheme of plea-bargaining prevailing in
other countries and adopt such scheme so
that substantive sentence of imprisonment
25 in jail deserves to be imposed on an
offender who pleads guilty whilst invoking
the scheme for concessional treatment.
The Law Commission recommended
formulation of appropriate guidelines in
30 that behalf. This recommendation of the
Law Commission has been mirrored in
clauses (d) and (c), respectively, which
spell out the quantum of sentence to be
awarded by the Court and is in the nature
35 of guidelines formulated by the
Legislature.
The status of accused, who pleads not
guilty to the charge and claims to be tried
is incomparable with the status of the
40 accused, who pleads guilty and invokes
remedy of plea-bargaining. In that sense,
the two sets of accused cannot be equated
or said to be similarly placed. Moreover,
the provision, such as Section 265-E,
45 providing for sentence is a concession
offered to accused who voluntarily resorts
to plea-bargaining, so as to avoid the
uncertainty of the trial, the term of
sentence, if found guilty and also the
50 litigation costs and time. Until the
introduction of Chapter XXI-A in the
Code, the law of the land was to
discourage plea bargaining, being against
public policy. Thus, the argument of
55 discrimination is unavailable to the
accused, who, at his own volition, elects
the remedy of plea-bargaining. As regards
the effect of providing for fixed sentence
period in cases of plea-bargaining, even
60 though the principal substantive law does
not provide for minimum sentence, we fail
to understand as to how this argument can
be taken forward by the accused electing
remedy of plea bargaining at his own
65 volition. Notably, the validity of Section
265-E is not put in issue in the present
case. Neither the argument of
discrimination, nor the effect of the
provision resulting in imposing minimum
70 sentence of one-fourth of the punishment
provided or extendable can be taken
forward by these petitioners.
-Taking over all view of the matter, we
have no hesitation in upholding the
75 opinion of the trial Court that the Court
has no discretion to award sentence other
than one-fourth of the punishment
provided for or extendable, as the case
may be, for the offence in question in
80 cases covered by clause (d) of Section
265-E of the Code. On this finding, the
final order passed by the Magistrate of
awarding sentence of 21 months to the
petitioners is unassailable.
85 The counsel for the petitioners had placed
reliance on the decision of the Apex Court
in the case of State of M.P. v. Munna
Choubey &Anr.- AIR 2005 S.C. 682. We
fail to understand as to how this decision is
90 of any help to the petitioners. Firstly, this
decision deals with the question as to
whether the Single Judge of the High
Court was right in reducing the sentence
imposed on each of the accused by the trial
95 Court in the fact situation of that case. The
Single Judge had decided the matter in
favour of the accused on the finding that
177
 the sentence already undergone by the
accused would meet the ends of justice, as
the offence had taken place nearly 6 years'
back; and the second reason which
5 weighed with the Single Judge was that the
accused belong to rural area. The Apex
Court found that none of these
considerations were valid, more
particularly in view of the offence of rape
10 concerning the human body, and the
accused cannot be let free on the sentence
of imprisonment for a period of about 3
years and 6 months already undergone.
Reliance was then placed on the decision
15 of the Division Bench of our High Court in
the case of Ramesh Sadashiv Khatpe &
Ors. v. State of Maharashtra & Ors. -2007
(1) Bom. C.R. (Cri.) 993. Even this
decision is of no avail to the petitioners.
20 The opinion recorded in that case that
almost 18 years have gone by since the
offence was committed and no purpose
would be served by incarcerating the
accused any further, especially since they
25 have reformed. That reasoning can be of
no avail while sentencing the accused in
terms of Section 265-E of the Code.
Suffice it to observe that the said decision
has no application to the case on hand.
30 Accordingly, we hold that this petition is
devoid of merits, and deserves to be
dismissed. Hence, dismissed. Rule is
discharged.
178
 Shiv Kumar vs. Hukam Chand and Anr. (1999 )7SCC 467
Objectives:
1. Right of Victim to have assistance of Counsel
2. Right of Victim in Procedure
3. Role of Public Prosecutor in Trial
K.T. Thomas, J.
It is as well for the protection of accused
persons in sessions trials (in India) that
provision is made to have the case against
him prosecuted only by a Public
5 Prosecutor and not by any counsel
engaged by the aggrieved private party.
Fairness to the accused who faces
prosecution is the raise on d'etre of the
legislative insistence on that score.
10 In this case, appellant is aggrieved because
a counsel engaged by him was not allowed
by the High Court to conduct prosecution
in spite of obtaining a consent from the
Public Prosecutor concerned. First
15 respondent was the accused in the sessions
trial wherein appellant wanted his
counsel's active role to be played.
Appellant and respondent are advocates
practicing at the same station. The
20 grievance of the appellant developed in the
following fact situation:
Appellant is the brother of five sisters, and
the youngest among them, Suman, had
secured creditable academic laurels. She
25 was given in marriage to Dr. Dinesh
Kumar Gupta (the son of the respondent).
But about 4 months after her marriage she
met with a tragic death by burns. On a
complaint lodged by the appellant, FIR
30 under Section 302 and 120-B of the Indian
Penal Code (IPC) was registered by the
local police against the respondent. But
after completion of the investigation a
charge-sheet was laid against him for the
35 offence under Section 304-B of the Indian
Penal Code.
Appellant, on his part, engaged Shri R.C.
Gugnani, advocate, to appear for him in
the Sessions Court during trial of the case.
40 On 1.7.1996 when appellant was to be
examined as a witness for prosecution,
Shri R.C. Gugnani, advocate ventured to
conduct the chief examination of that
witness. It was objected to by the counsel
45 for the accused on the premise that a
private counsel cannot conduct
prosecution in a sessions trial. Appellant
then moved an application on the same
day, the relevant portion of which reads
50 thus:
That the Public Prosecutor has no
objection if the case is conducted by Shri
R.C. Gugnani, advocate. That as per the
prevailing practice being followed by this
55 Hon'ble Court and as per provisions of
Section 301(2) Cr.P.C. my counsel has a
right to conduct the case under the
directions of the Public Prosecutor. It is,
therefore, prayed that in view of the facts
60 stated above, necessary permission may
please be given to the applicant for
conducting the case under the directions of
the Public Prosecutor. It seems, the Public
Prosecutor in the trial Court endorsed the
65 said application. The trial Court passed an
order thereon, the material portion of
which is the following :
I accept the application and allow Shri
R.C. Gugnani, advocate of the
70 complainant to conduct under the
supervision, guidance and control of the
public prosecutor, while conducting the
same case and the public prosecutor shall
retain with himself the control over the
75 proceedings.
179
 Accused was not prepared to have his case
prosecuted by the complainant's counsel
and hence he approached the High Court
in revision. The impugned order of the
5 High Court was passed by a Single Judge.
The operative portion of the said order
reads thus:
I allow this revision and direct that the
lawyer appointed by the complainant or
10 private person in this case shall act under
the directions from the Public Prosecutor
and may with the permission of the court
submit written arguments after evidence is
closed in the case. I further direct that the
15 Public Prosecutor in charge of the case
shall conduct the prosecution. Revision
petition is disposed of accordingly.
Learned Counsel for the appellant
informed us that trial in the case is over by
20 now. Nonetheless he pleaded for
consideration of the issue as he feels that a
decision thereon by this Court is necessary
for future guidance also. He contended that
Section 302(2) of the CrPC (must be so
25 construed as to enable the pleader of an
aggrieved private person to conduct the
prosecution in as best a manner as he
deems fit. Section 301 of the Code reads
thus:
30 301. Appearance by public prosecutors.--
(1) The Public Prosecutor or Assistant
Public Prosecutor in charge of a case may
appear and plead without any written
authority before any Court in which that
35 case is under inquiry, trial or appeal.
If in any such case any private person
instructs a pleader to prosecute any person
in any Court, the Public Prosecutor or
Assistant Public Prosecutor in charge of
40 the case shall conduct the prosecution, and
the pleader so instructed shall act therein
under the directions of the Public
Prosecutor or Assistant Public Prosecutor,
and may, with the permission of the Court,
45 submit written arguments after the
evidence is closed in the case.
Section 302 of the Code has also some
significance in this context and hence that
is also extracted below:
50 302. Permission to conduct prosecution.--
(1) Any Magistrate inquiring into or trying
a case may permit the prosecution to be
conducted by any person other than a
police officer below the rank of Inspector;
55 but no person, other than the Advocate-
General or Government Advocate or a
Public Prosecutor or Assistant Public
Prosecutor, shall be entitled to do so
without such permission:
60 Provided that no police officer shall be
permitted to conduct the prosecution if he
has taken part in the investigation into the
offence with respect to which the accused
is being prosecuted.
65 (2) Any person conducting the prosecution
may do so personally or by a pleader.
It must be noted that the latter provision is
intended only for magistrate courts. It
enables the magistrate to permit any
70 person to conduct the prosecution. The
only rider is that magistrate cannot give
such permission to a police officer below
the rank of Inspector. Such person need
not necessarily be a Public Prosecutor. In
75 the magistrate's court anybody (except a
police officer below the rank of Inspector)
can conduct prosecution, if the magistrate
permits him to do so. Once the permission
is granted the person concerned can
80 appoint any counsel to conduct the
prosecution on his behalf in the
magistrate's court. But the above laxity is
not extended to other courts. A reference
to Section 225 of the Code is necessary in
85 this context. It reads thus:
225. Trial to be conducted by Public
Prosecutor.--In every trial before a Court
of Session, the prosecution shall be
conducted by a Public Prosecutor.
180
 The old Criminal Procedure Code (1898)
contained an identical provision in Section
270 thereof. A Public Prosecutor means
any person appointed under Section 24 and
5 includes any person acting under the
directions of the Public Prosecutor", (vide
Section 2(u) of the Code).
In the backdrop of the above provisions we
have to understand the purport of Section
10 301 of the Code. Unlike its succeeding
provision in the Code, the application of
which is confined to magistrate courts, this
particular section is applicable to all the
courts of criminal jurisdiction. This
15 distinction can be discerned from
employment of the words "any court" in
Section 301. In view of the provision made
in the succeeding section as for magistrate
Courts the insistence contained in Section
20 301(2) must be understood as applicable to
all other courts without any exception. The
first sub-section empowers the Public
Prosecutor to plead in the court without
any written authority, provided he is in
25 charge of the case. The second sub-
section, which is sought to be invoked by
the appellant, imposes the curb on a
counsel engaged by any private party. It
limits his role to act in the court during
30 such prosecution "under the directions of
the Public Prosecutor". The only other
liberty which he can possibly exercise is to
submit written arguments after the closure
of evidence in the trial, but that too can be
35 done only if the Court permits him to do
so.
From the scheme of the Code the
legislative intention is manifestly clear that
prosecution in a Sessions Court cannot be
40 conducted by any one other than the Public
Prosecutor. The legislature reminds the
State that the policy must strictly conform
to fairness in the trial of an accused in a
Sessions Court. A Public Prosecutor is not
45 expected to show a thirst to reach the case
in the conviction of the accused somehow
or the other irrespective of the true facts
involved in the case. The expected attitude
of the Public Prosecutor while conducting
50 prosecution must be couched in fairness
not only to the Court and to the
investigating agencies but to the accused
as well. If an accused is entitled to any
legitimate benefit during trial the Public
55 Prosecutor should not scuttle/conceal it.
On the contrary, it is the duty of the Public
Prosecutor to winch it to the force and
make it available to the accused. Even if
the defence counsel overlooked it, Public
60 Prosecutor has the added responsibility to
bring it to the notice of the Court if it
comes to his knowledge, A private
counsel, if allowed frees hand to conduct
prosecution would focus on bringing the
65 case to conviction even if it is not a fit case
to be so convicted. That is the reason why
Parliament applied a bridle on him and
subjected his role strictly to the
instructions given by the Public
70 Prosecutor. The role which a private
counsel in such a situation can play is,
perhaps, comparable with that of a junior
advocate conducting the case of his senior
in a court. The private counsel is to act on
75 behalf of the Public Prosecutor albeit the
fact he is engaged in the case by a private
party. If the role of the Public Prosecutor is
allowed to shrink to a mere supervisory
role the trial would become a combat
80 between the private party and the accused
which would render the legislative
mandate in Section 225 of the Code a dead
letter.
An early decision of a Full Bench of the
85 Allahabad High Court in Queen-Empress
v. Durga (ILR 1894 Allahabad 84) has
pinpointed the role of a Public Prosecutor
as follows:
It is the duty of a Public Prosecutor to
90 conduct the case for the Crown fairly. His
object should be, not to obtain an
unrighteous conviction, but, as
representing the Crown, to see that justice
is vindicated: and, in exercising his
95 discretion as to the witnesses whom he
should or should not call, he should bear
181
 that in mind. In our opinion, a Public
Prosecutor should not refuse to call or put
into the witness-box for cross-examination
a truthful witness returned in the calendar
5 as a witness for the Crown, merely
because the evidence of such witness might
in some respects be favourable to the
defence. If a Public Prosecutor is of
opinion that a witness is a false witness or
10 is likely to give false testimony if put into
the witness-box, he is not bound, in our
opinion, to call that witness or to tender
him for cross-examination.
no inroad upon its integrity. Otherwise
30 there will be no guarantee that the trial will
be as fair to the accused as a criminal trial
ought to be. The State and the Public
Prosecutor acting for it are only supposed
to be putting all the facts of the case before
35 the Court to obtain its decision thereon and
not to obtain a conviction by any means
fair or foul. Therefore, it is right and
proper that courts should be zealous to see
that the prosecution of an offender is not
40 handed over completely to a professional
gentleman instructed by a private party.

As we are in complete agreement with the Another Division Bench of the same High
15 observation of a Division Bench of the Court in re Bhupalli Malliah and Ors.
High Court of Andhra Pradesh in AIR1959AP477 had in fact deprecated the
Medichetty Ramakistiah and Ors. v. The 45 practice of Public Prosecutor's sitting back
State of Andhra Pradesh AIR1959AP659 and permitting private counsel to conduct
we deem it fit to extract the said prosecution, in the following terms: “We
20 observation: would like to make it very clear that it is
extremely undesirable and quite improper
A prosecution, to use a familiar phrase, 50 that a Public Prosecutor should be allowed
ought not to be a persecution. The to sit back, handing over the conduct of the
principle that the Public Prosecutor should case to a counsel, however eminent he
be scrupulously fair to the accused and may be, briefed by the complainant in the
25 present his case with detachment and case.”
without evincing any anxiety to secure a
conviction, is based upon high policy and 55 Equally forceful is the observa
as such Courts should be astute to suffer
tion of Bhimasankaram, J. for the Division Bench in Medichetty Ramakistiah (cited supra)
which is worthy of quotation here: “Unless, therefore, the control of the Public Prosecutor is
there, the prosecution by a pleader for a private party may degenerate into a legalized means
for wreaking private vengeance. The prosecution instead of being a fair and dispassionate
60 presentation of the facts of the case for the determination of the Court, would be transformed
into a battle between two parties in which one was trying to get better of the other, by
whatever means available. It is true that in every case there is the overall control of the Court
in regard to the conduct of the case by either party. But it cannot extend to the point of
ensuring that in all matters one party is fair to the other.

65 We, therefore, conclude that the High Court in the impugned order has correctly approached
the issue and it does not warrant any interference. We, therefore, dismiss this criminal appeal.

70

182
 Ankush Shivaji Gaikwad vs. State of Maharashtra
(2013) 6 SCC 770
Objective
1. To understand Victim Compensation Scheme
2. Definition of Victim
3. Interpretation of S. 357 and S. 357 A – 357 C of CrPC
JUDGMENT
T.S. Thakur, J.
The factual matrix in which the
Appellant came to be prosecuted and
convicted has been set out in detail by
the trial Court as also the High Court in
5 the orders passed by them. We need not,
therefore, recapitulate the same all over
again except to the extent it is necessary
to do so for the disposal of this appeal.
Briefly stated, the incident that
10 culminated in the death of deceased-
Nilkanth Pawar and the consequent
prosecution of the Appellant and two
others occurred at about 10.00 p.m. on
3rd February, 2006 while the deceased
15 and his wife P.W. 1-Mangalbai were
guarding their Jaggery crop growing in
their field. The prosecution story is that
the Appellant-Ankush Shivaji Gaikwad
accompanied by Madhav Shivaji
20 Gaikwad (accused No. 2) and Shivaji
Bhivaji Gaikwad (accused No. 3) were
walking past the field of the deceased
when a dog owned by the deceased
started barking at them. Angered by the
25 barking of the animal, the Appellant is
alleged to have hit the dog with the iron
pipe that he was carrying in his hand.
The deceased objected to the Appellant
beating the dog, whereupon the
30 Appellant started abusing the former and
told him to keep quiet or else he too
would be beaten like a dog. The
exchange of hot words, it appears, led to
a scuffle between the deceased and the
35 accused persons in the course whereof,
while accused Nos. 2 and 3 beat the
deceased with fist and kicks, the
Appellant hit the deceased with the iron
pipe on the head. On account of the
40 injury inflicted upon him, the deceased
fell to the ground whereupon all the
three accused persons ran away from the
spot. The incident was witnessed by the
wife of the deceased, P.W. 1-Mangalbai
45 and by P.W. 5-Ramesh Ganpati Pawar
who was also present in the field nearby
at the time of the occurrence. The
deceased was carried on a motorcycle to
the hospital of one Dr. Chinchole at
50 Omerga from where he was shifted to
Solapur for further treatment. Two days
after the occurrence when the condition
of the deceased became precarious,
P.W. 1-Mangalbai filed a complaint at
55 the Police Station, Omerga on
5th February, 2006 on the basis whereby
Crime No. 25 of 2006 Under
Sections 326, 504 and 323 read with
Section 34 of the Indian Penal Code was
60 registered by the police. Investigation of
the case was taken up by P.W. 6-Police
Sub Inspector Parihar who recorded the
panchnama of the scene of the crime and
arrested the accused persons. The
65 deceased eventually succumbed to his
injuries on 7th February, 2006
whereupon Section302 read with
Section 34 of the Indian Penal Code was
added to the case.
70 Post-mortem examination of the
deceased revealed a contusion behind
183
 his right ear, a contusion on the right
arm and an abrasion on the right ankle
joint. Internal examination, however,
showed that the deceased had sustained
5 an internal injury to the temporal and
occipital region under the scalp and a
fracture on the base of the skull. Blood
clots were noted in the brain tissues and
the base of the skull, besides internal
10 bleeding. According to the doctor, the
death was caused by the injury to the
head. After completion of the
investigation that included seizure of the
alleged weapon used by the Appellant,
15 the police filed a chargesheet before the
judicial Magistrate, who committed the
Appellant and co-accused to face trial
for the offence of murder punishable
Under Section 302 read with
20 Section 34 of the Indian Penal Code
before the Sessions Court. Before the
Sessions Court the Appellant and his co-
accused pleaded not guilty and claimed
a trial.
25 The prosecution examined as many as
six witnesses including P.W. 1-
Mangalbai, the widow of the deceased
and P.W. 5-Ramesh, both of whom were
presented as eye witnesses to the
30 occurrence. The remaining witnesses
included P.W. 3-Dr. Kamble and P.W.
6-Police Sub-Inspector Parihar.
Appraisal of the evidence adduced by
the prosecution led the trial Court to
35 hold the Appellant and his co-accused
guilty for the offence of murder and
sentenced them to imprisonment for life
besides a fine of Rs. 2,000/- each and a
default sentence of three months
40 rigorous imprisonment.
The Appellant and his co-accused
preferred Criminal Appeal No. 359 of
2008 before the High Court of
Judicature at Bombay, Bench at
45 Aurangabad. The High Court has by the
judgment impugned in this appeal
dismissed the appeal of the Appellant
before us but allowed the same in so far
as the co-accused are concerned. The
50 correctness of the said judgment and
order is under challenge before us.
We are of the opinion that the nature of
the simple injury inflicted by the
accused, the part of the body on which it
55 was inflicted, the weapon used to inflict
the same and the circumstances in which
the injury was inflicted do not suggest
that the Appellant had the intention to
kill the deceased. All that can be said is
60 that the Appellant had the knowledge
that the injury inflicted by him was
likely to cause the death of the deceased.
The case would, therefore, more
appropriately fall Under
65 Section 304 Part II of the Indian Penal
Code.
The only other aspect that needs to be
examined is whether any compensation
be awarded against the Appellant and in
70 favour of the bereaved family Under
Section 357 of the Code of Criminal
Procedure, 1973. This aspect arises very
often and has been a subject matter of
several pronouncements of this Court.
75 The same may require some elaboration
to place in bold relief certain aspects
that need to be addressed by Courts but
have despite the decisions of this Court
remained obscure and neglected by the
80 Courts at different levels in this country.
26. More than four decades back
Krishna Iyer J. speaking for the Court
in Maru Ram and Ors. v. Union of
India and Ors. (1981) 1 SCC 107, in
85 his inimitable style said that while social
responsibility of the criminal to restore
the loss or heal the injury is a part of the
punitive exercise, the length of the
prison term is no reparation to the
184
 crippled or bereaved but is futility
compounded with cruelty. Victimology
must find fulfilment said the Court, not
through barbarity but by compulsory
5 recoupment by the wrong doer of the
damage inflicted not by giving more
pain to the offender but by lessening the
loss of the forlorn. In Hari Singh v.
Sukhbir Singh and Ors. (1988) 4 SCC
10 551, this Court lamented the failure of
the Courts in awarding compensation to
the victims in terms of Section 357
(1) of the Code of Criminal Procedure.
The Court recommended to all Courts to
15 exercise the power available Under
Section 357 of the Code of Criminal
Procedure liberally so as to meet the
ends of justice.
The amount of compensation, observed
20 this Court, was to be determined by the
Courts depending upon the facts and
circumstances of each case, the nature of
the crime, the justness of the claim and
the capacity of the accused to pay.
25 In Dilip S. Dahanukar v. Kotak
Mahindra Co. Ltd. and Anr. 2007) 6
SCC 528, this Court held that the power
of the Courts to award compensation to
victims Under Section 357 is not
30 ancillary to other sentences but in
addition thereto and that imposition of
fine and/or grant of compensation to a
great extent must depend upon the
relevant factors apart from such fine or
35 compensation being just and reasonable.
InDilip S. Dahanukar's case (supra)
this Court even favoured an inquiry
albeit summary in nature to determine
the paying capacity of the offender. The
40 Court said:
... The purpose of imposition of fine and/or
grant of compensation to a great extent
must be considered having the relevant
factors therefore in mind. It may be
45 compensating the person in one way or the
other. The amount of compensation sought
to be imposed, thus, must be reasonable
and not arbitrary. Before issuing a
direction to pay compensation, the
50 capacity of accused to pay the same must
be judged. A fortiori, an enquiry in this
behalf even in a summary way may be
necessary. Some reasons, which may not
be very elaborate, may also have to be
55 assigned; the purpose being that whereas
the power to impose fine is limited and
direction to pay compensation can be
made for one or the other factors
enumerated out of the same; but Sub-
60 section (3) of Section 357 does not impose
any such limitation and thus, power
thereunder should be exercised only in
appropriate cases. Such a jurisdiction
cannot be exercised at the whims and
65 caprice of a judge.
The long line of judicial
pronouncements of this Court
recognised in no uncertain terms a
paradigm shift in the approach towards
70 victims of crimes who were held entitled
to reparation, restitution or
compensation for loss or injury suffered
by them. This shift from retribution to
restitution began in the mid 1960s and
75 gained momentum in the decades that
followed. Interestingly the clock appears
to have come full circle by the law
makers and courts going back in a great
measure to what was in ancient times
80 common place. Harvard Law Review
(1984) in an article on “Victim
Restitution in Criminal Law Process:
A Procedural Analysis” sums up the
historical perspective of the concept of
85 restitution in the following words:
Far from being a novel approach to
sentencing, restitution has been employed
as a punitive sanction throughout history.
In ancient societies, before the conceptual
185
 separation of civil and criminal law, it was
standard practice to require an offender to
reimburse the victim or his family for any
loss caused by the offense. The primary
5 purpose of such restitution was not to
compensate the victim, but to protect the
offender from violent retaliation by the
victim or the community. It was a means
by which the offender could buy back the
10 peace he had broken. As the state
gradually established a monopoly over the
institution of punishment, and a division
between civil and criminal law emerged,
the victim's right to compensation was
15 incorporated into civil law.
With modern concepts creating a
distinction between civil and criminal
law in which civil law provides for
remedies to award compensation for
20 private wrongs and the criminal law
takes care of punishing the wrong doer,
the legal position that emerged till
recent times was that criminal law need
not concern itself with compensation to
25 the victims since compensation was a
civil remedy that fell within the domain
of the civil Courts. This conventional
position has in recent times undergone a
notable sea change, as societies world
30 over have increasingly felt that victims
of the crimes were being neglected by
the legislatures and the Courts alike.
Legislations have, therefore, been
introduced in many countries including
35 Canada, Australia, England, New
Zealand, Northern Ireland and in certain
States in the USA providing for
restitution/reparation by Courts
administering criminal justice.
40 Back home the Code of Criminal
Procedure of 1898 contained a provision
for restitution in the form of Section545,
which stated in Sub-clause 1(b) that the
Court may direct "payment to any
45 person of compensation for any loss or
injury caused by the offence when
substantial compensation is, in the
opinion of the Court, recoverable by
such person in a Civil Court".
50 The Law Commission of India in its
41st Report submitted in 1969 discussed
Section 545 of the Code of Criminal
Procedure of 1898 extensively and
stated as follows:
55 46.12. Under Clause (b) of Sub-
section (1) of Section 545, the
Court may direct "payment to
any person of compensation for
any loss or injury caused by the
60 offence when substantial
compensation is, in the opinion
of the Court, recoverable by
such person in a Civil Court."
The significance of the
65 requirement that compensation
should be recoverable in a Civil
Court is that the act which
constitutes the offence in
question should also be a tort.
70 The word "substantial" appears
to have been used to exclude
cases where only nominal
damages would be
recoverable. We think it is
75 hardly necessary to emphasise
this aspect, since in any event it
is purely within the discretion of
the Criminal Courts to order or
not to order payment of
80 compensation, and in practice,
they are not particularly liberal
in utilizing this provision.We
propose to omit the word
"substantial" from the clause.
85 (Emphasis supplied)
39. On the basis of the recommendations
made by the Law Commission in the
above report, the Government of India
introduced the Code of Criminal
186
 Procedure Bill, 1970, which aimed at
revising Section 545 and introducing it
in the form of Section 357 as it reads
today. The Statement of Objects and
5 Reasons underlying the Bill was as
follows:
Clause 365 [now Section 357]
which corresponds to
Section 545 makes provision for
10 payment of compensation to
victims of crimes. At present
such compensation can be
ordered only when the Court
imposes a fine the amount is
15 limited to the amount of fine.
Under the new provision,
compensation can be awarded
irrespective of whether the
offence is punishable with fine
20 and fine is actually imposed, but
such compensation can be
ordered only if the accused is
convicted. The compensation
should be payable for any loss
25 or injury whether physical or
pecuniary and the Court shall
have due regard to the nature of
injury, the manner of inflicting
the same, the capacity of the
30 accused to pay and other
relevant factors.
(Emphasis supplied)
The Code of Criminal Procedure of
1973 which incorporated the changes
35 proposed in the said Bill of 1970 states
in its Objects and Reasons that
Section 357 was "intended to provide
relief to the proper sections of the
community" and that the amended Code
40 of Criminal Procedure empowered the
Court to order payment of compensation
by the accused to the victims of
crimes "to a larger extent" than was
previously permissible under the Code.
45 The changes brought about by the
introduction of Section 357 were as
follows:
(i) The word "substantial" was
excluded.
50 (ii) A new Sub-section (3) was
added which provides for
payment of compensation even
in cases where the fine does not
form part of the sentence
55 imposed.
(iii) Sub-section (4) was
introduced which states that an
order awarding compensation
may be made by an Appellate
60 Court or by the High Court or
Court of Session when
exercising its powers of revision.
The amendments to the Code of
Criminal Procedure brought about in
65 2008 focused heavily on the rights of
victims in a criminal trial, particularly in
trials relating to sexual offences.
Though the 2008 amendments left
Section 357unchanged, they introduced
70 Section 357A under which the Court is
empowered to direct the State to pay
compensation to the victim in such cases
where "the compensation awarded
Under Section 357 is not adequate for
75 such rehabilitation, or where the case
ends in acquittal or discharge and the
victim has to be rehabilitated." Under
this provision, even if the accused is not
tried but the victim needs to be
80 rehabilitated, the victim may request the
State or District Legal Services
Authority to award him/her
compensation. This provision was
introduced due to the recommendations
85 made by the Law Commission of India
in its 152nd and 154th Reports in 1994
and 1996 respectively.
187
 The question then is whether the
plenitude of the power vested in the
Courts Under Section 357 & 357-A,
notwithstanding, the Courts can simply
5 ignore the provisions or neglect the
exercise of a power that is primarily
meant to be exercised for the benefit of
the victims of crimes that are so often
committed though less frequently
10 punished by the Courts. In other words,
whether Courts have a duty to advert to
the question of awarding compensation
to the victim and record reasons while
granting or refusing relief to them?
15 The language of Section 357 Code of
Criminal Procedure at a glance may not
suggest that any obligation is cast upon
a Court to apply its mind to the question
of compensation. Sub-section (1) of
20 Section 357 states that the Court "may"
order for the whole or any part of a fine
recovered to be applied towards
compensation in the following cases:
(i) To any person who has
25 suffered loss or injury by the
offence, when in the opinion of
the Court, such compensation
would be recoverable by such
person in a Civil Court.
30 (ii) To a person who is entitled
to recover damages under the
Fatal Accidents Act, when there
is a conviction for causing death
or abetment thereof.
35 (iii) To a bona fide purchaser of
property, which has become the
subject of theft, criminal
misappropriation, criminal
breach of trust, cheating, or
40 receiving or retaining or
disposing of stolen property, and
which is ordered to be restored
to its rightful owner.
Sub-section (3) of Section 357 further
45 empowers the Court by stating that
it "may" award compensation even in
such cases where the sentence imposed
does not include a fine. The legal
position is, however, well-established
50 that cases may arise where a provision is
mandatory despite the use of language
that makes it discretionary.
There is no gainsaying that
Section 357 confers a power on the
55 Court in so far as it makes it "legal and
possible which there would otherwise be
no right or authority to do" viz. to
award compensation to victims in
criminal cases. The question is whether
60 despite the use of discretionary language
such as the word "may", there
is "something" in the nature of the
power to award compensation in
criminal cases, in the object for which
65 the power is conferred or in the title of
the persons for whose benefit it is to be
exercised which, coupled with the
power conferred under the provision,
casts a duty on the Court to apply its
70 mind to the question of exercise of this
power in every criminal case.
In State of Punjab v. Prem Sagar and
Ors. MANU/SC/7692/2008 : (2008) 7
SCC 550 this Court stressed the need for
75 greater application of mind of the Courts
in the field of sentencing. Setting aside
the order granting probation by the High
Court, the Court stated as follows:
30....The High Court does not
80 rest its decision on any legal
principle. No sufficient or cogent
reason has been arrived.
31. We have noticed the
development of law in this behalf
85 in other countries only to
emphasise that the courts while
188
 imposing sentence must take into
consideration the principles
applicable thereto. It requires
application of mind. The
5 purpose of imposition of
sentence must also be kept in
mind...
Although speaking in the context of
capital punishment, the following
10 observation of this Court in Sangeet and
Anr. v. State of Haryana (2013) 2 SCC
452 could be said to apply to other
sentences as well, particularly the award
of compensation to the victim:
15 In the sentencing process, both the crime
and the criminal are equally important.
We have unfortunately, not taken the
sentencing process as seriously as it
should be with the result that in capital
20 offences, it has become judge-centric
sentencing rather than principled
sentencing.
57. Section 357 Code of Criminal
Procedure confers a duty on the Court to
25 apply its mind to the question of
compensation in every criminal case. It
necessarily follows that the Court must
disclose that it has applied its mind to
this question in every criminal case.
30 In Maya Devi (Dead) through L.Rs.
and Ors. v. Raj Kumari Batra (Dead)
through L.Rs. and Ors. (2010) 9 SCC
486, this Court held that disclosure of
application of mind is best demonstrated
35 by recording reasons in support of the
order or conclusion.
To sum up: While the award or refusal
of compensation in a particular case
may be within the Court's discretion,
40 there exists a mandatory duty on the
Court to apply its mind to the question
in every criminal case. Application of
mind to the question is best disclosed by
recording reasons for awarding/refusing
45 compensation. It is axiomatic that for
any exercise involving application of
mind, the Court ought to have the
necessary material which it would
evaluate to arrive at a fair and
50 reasonable conclusion. It is also beyond
dispute that the occasion to consider the
question of award of compensation
would logically arise only after the court
records a conviction of the accused.
55 Capacity of the accused to pay which
constitutes an important aspect of any
order Under Section 357 Code of
Criminal Procedure would involve a
certain enquiry albeit summary unless of
60 course the facts as emerging in the
course of the trial are so clear that the
court considers it unnecessary to do so.
Such an enquiry can precede an order on
sentence to enable the court to take a
65 view, both on the question of sentence
and compensation that it may in its
wisdom decide to award to the victim or
his/her family.
Coming then to the case at hand, we
70 regret to say that the trial Court and the
High Court appear to have remained
oblivious to the provisions of
Section 357 Code of Criminal
Procedure. The judgments under appeal
75 betray ignorance of the Courts below
about the statutory provisions and the
duty cast upon the Courts. Remand at
this distant point of time does not appear
to be a good option either. This may not
80 be a happy situation but having regard to
the facts and the circumstances of the
case and the time lag since the offence
was committed, we conclude this
chapter in the hope that the courts
85 remain careful in future.
189
 Ram Phal vs.State and Ors. 221 (2015) DLT 1 - High Court of Delhi
Objectives:
1. Appeal against acquittal
2. Rights of Victim to file appeal
3. Section 372 & 378 of CrPC
S. Ravindra Bhat, J.
This is a reference to a Full Bench in Crl.
A. No. 1451/2012. The reference stems
from issues arising out of the judgment of
5 a Division Bench of this Court in Chattar
Singh v. Subhash and Ors., 176 (2011)
DLT 356, and concerns the locus standi of
private parties to maintain appeals by
virtue of the proviso to Section 372 of the
10 Code of Criminal Procedure, 1973
(hereafter "Cr.P.C.").The relevant statutory
provisions are excerpted for convenience.
First, Section 2(wa) of the Cr.P.C. defines
"victim" as:
15 "victim" means a person who has suffered
any loss or injury caused by reason of the
act or omission for which the accused
person has been charged and the
expression "victim" includes his or her
20 guardian or legal heir."
The second provision is Section 372 of the
Cr.P.C., which stipulates that:
"No appeal shall lie from any judgment or
order of a Criminal Court except as
25 provided for by this Code or any other law
for the time being in force."
The third statutory provision is the proviso
to Section 372, Cr.P.C., which was
introduced in 2008, conferring upon
30 victims, the right of appeal in these terms:
"Provided that the victim shall have a
right to prefer an appeal against any order
passed by the Court acquitting the accused
or convicting for a lesser offence or
35 imposing inadequate compensation, and
such appeal shall lie to the Court to which
an appeal ordinarily lies against the order
of conviction of such Court."
The reference
40 The two questions that arise for this
Court's consideration, by virtue of the
order of reference, are outlined below:
(a) Whether the word 'victim' in Section
2(wa) of the Cr.P.C. would mean only the
45 legal heirs entitled to the property of the
victim under the law applicable of
inheritance or would embrace any person
who has suffered any loss or injury caused
by reason of the act or omission for which
50 the accused person has been charged.
(b) Whether the appellate remedy is
available with respect to only such
offences which were committed as on the
date when the appellate right was
55 conferred by law or the appellate right
would be available with respect to the date
of the decision or the appellate remedy is
without any reference to the two points of
time i.e. the date when the offence was
60 committed or when the appellate right was
conferred by law, (Act No. 5 of 2009 with
effect from 31.12.2009).
Legislative History
A victim-oriented approach to certain
65 aspects of criminal procedure was
advocated in the Law Commission of
India's 154th Report, 1996, which noted
that "increasingly, the attention of
criminologists, penologists and reformers
70 of criminal justice system has been
directed to victimology, control of
victimization and protection of the victims
190
 of crimes." (Chapter XV, Paragraph 1)
While focused on issues of compensation,
the Law Commission Report cited the
1985 United Nations Declaration of Basic
5 Principles of Justice for Victims of Crime
and Abuse of Power for its definition of
"victim":
"persons who, individually or collectively,
have suffered harm, including physical or
10 mental injury, emotional suffering,
economic loss or substantial impairment of
their fundamental rights, through acts or
omissions that are in violation of criminal
laws." (Chapter XV, Paragraph 6.2).
15 5. The said report prompted the Code of
Criminal Procedure (Amendment) Bill of
2006. Its Statement of Objects and
Reasons noted that.
"the Law Commission has undertaken a
20 comprehensive review of the Code of
Criminal Procedure in its 154th report
and its recommendations have been found
very appropriate, particularly those
relating to provisions concerning arrest,
25 custody and remand, procedure for
summons and warrant-cases,
compounding of offences, victimology,
special protection in respect of women and
inquiry and trial of persons of unsound
30 mind."
It also noted that
"at present, the victims are the worst
sufferers in a crime and they don't have
much role in the court proceedings. They
35 need to be given certain rights and
compensation, so that there is no distortion
of the criminal justice system."
The definition of "victim", as well as the
proviso to Section 372 was eventually
40 inserted into the Code of Criminal
Procedure through the Code of Criminal
Procedure (Amendment) Act, 2008 (Act
No. 5 of 2009). The Amendment inserts
victim-oriented provisions at a number of
45 places in the Cr.P.C. For instance, a
proviso to Section 157(7) is added,
stipulating that
"Provided further that in relation to an
offence of rape, the recording of statement
50 of the victim shall be conducted at the
residence of the victim or in the place of
her choice and as far as practicable by a
woman police officer in the presence of
her parents or guardian or near relatives or
55 social worker of the locality."
Through a new Section, 357A, it is
provided that
"Every State Government in co-ordination
with the Central Government shall prepare
60 a scheme for providing funds for the
purpose of compensation to the victim or
his dependents who have suffered loss or
injury as a result of the crime and who,
require rehabilitation."
65 6. This, of course, is quite apart from the
insertion of S. 2(wa) and the proviso to
Section 372, the interpretation of which is
the core issue in this case.
Re: Point No. 1
70 In Chattar Singh (supra) the Division
Bench held that the phrase "loss or injury"
in Section 2(wa) is limited to "the person
whose suffering is the direct and most
proximate result of the crime." It further
75 reasoned that the phrase "victim" means a
person who has suffered any loss or injury
caused by reason of the act or omission for
which the accused person has been
charged... In other words, the Division
80 Bench held that the set of people who
qualify under Section 2(wa) on account of
suffering loss or injuries, and the set of
people who qualify as "legal heirs" of the
former, constitute two separate, non-
85 overlapping categories. The phrase "legal
heirs" was a term of art, and was limited to
"a person who is entitled to the property of
the victim under the applicable law of
191
 inheritance." Under Hindu law, this meant,
for instance, that Class II heirs (in terms of
the Hindu Succession Act, 1956) would
lack the locus standi to maintain a criminal
5 appeal, since they were excluded from
inheriting by Class I heirs.
A. 2 Disparate and conflicting views of
various High Courts
The view of this Court in Chattar Singh
10 (supra) is not the only one in the field. A
number of High Courts have considered
the issue, and have come to varying
conclusions. In D. Sudhakar v. Panapu
Sreenivasulu 2013 Cri LJ 2764, the
15 Andhra Pradesh High Court agreed with
the view in Chattar Singh (supra). It held
that:
"The word "heir" has been interpreted by
the Supreme Court in several cases which
20 means all persons who are entitled to the
property of another under the law of
inheritance. In Section 2(wa) of Cr.P.C.,
since the word heir is preceded by the
word "legal", it must be construed in the
25 legal sense as that is the clear intention of
the Legislature. The expression "legal
heir" in relation to a victim, therefore,
clearly refers to a person who is entitled to
the property of the victim under the
30 applicable law of inheritance."
Disagreeing with the Delhi High Court's
construction of the term "legal heir", a Full
Bench of the Punjab & Haryana High
Court in Tata Steel v. Atma Tube Products
35 (2014) 173 (1) PLR 1, cited the Supreme
Court judgment in Vasant Pratap Pandit v.
Anant Trimbak Sabnis (1994) 3 SCC 481
for the proposition that:
"the word "heir" may be construed both in
40 a wider as well as in a narrower sense and
therefore, which sense would be applicable
to the facts of a particular case would
depend upon the intention and scheme of
the particular legislation in which the
45 question occurred."
In the context of the proviso to Section
372, the Court held that"every heir who, in
law, is entitled to succeed to the estate of a
deceased 'victim' in one or the other
50 eventuality, shall fall within the ambit of
Section 2(wa) of the Code, even if the
estate of such deceased 'victim' is to
devolve upon the legal heirs as per the
order of preference prescribed under the
55 personal law of such 'victim'."
The Punjab & Haryana High Court
reasoned further "the 'right to appeal'
under proviso to Section 372 at the best
enables the Appellate Court to call for the
60 records, re-appraise the evidence and
determine - (i) whether acquittal of the
accused is justified? Or (ii) whether the
accused has been rightly convicted for a
lesser offence? Or (iii) whether the
65 compensation determined under Section
357 is inadequate? Such an exercise..... can
be undertaken by the appellate court on
presentation of appeal by any 'legal heir'
irrespective of his proximity with the
70 deceased under the personal law."
The Guwahati and the Patna High Courts
(while agreeing with the Division Bench in
Chattar Singh (supra) on the meaning of
"legal heir") have, on the other hand, held
75 that the word "victim" must be given a
broader interpretation. The Guwahati High
Court, in Gouranga Debnath v. State of
Tripura, 2011 (4) GLT 379, discussing the
locus standi of the victim's father, noted
80 that
"as the words 'loss' and 'injury' were not
defined in the Code, we have to consider
that loss and injury, as mental and physical
injury and also emotional sufferings and
85 the deceased being the lone daughter of the
petitioner, absence of his daughter due to
alleged murder by the accused respondents
created a void in the heart of the petitioner
and also his family members."
90 A survey of these High Court decisions
thus reveals four possible approaches to
192
 the question of the victims' locus standi to
maintain an appeal under the proviso to
Section 372:
(a) A narrow reading of the word "victim"
5 (limiting it to direct and proximate
physical harm), and a narrow reading of
the term "legal heir" (limiting it to lines of
succession under personal law). This is the
approach of the Division Bench of this
10 Court in Chattar Singh (supra) and of the
Andhra Pradesh High Court.
(b) A broad reading of the word "victim"
(expanding it to emotional harm caused by
the direct harm to someone that one is
15 close to), and a narrow reading of the term
"legal heir" (limiting it to lines of
succession under personal law). This is the
approach of the Patna High Court. The
Guwahati High Court has also favoured a
20 broad reading of the word "victim", while
returning no finding on the meaning of
"legal heir"
(c) A narrow reading of the word "victim"
and a broad reading of the term "legal
25 heir".
(d) A broad reading of the term "victim"
and of the term "legal heir": This appears
to be the view of the Punjab & Haryana
High Court, which favours a broad reading
30 of "legal heir", although it does not appear
to have returned a conclusive finding on
the reading of the word "victim".
A. 3 Contentions of the parties-A.
3(a) Amicus Curiae
35 Mr. Dayan Krishnan, learned Amicus
Curiae, submitted that this Court should
adopt the fourth approach - i.e., the broad
reading of the word "victim" and of "legal
heir" (this is the approach of the Punjab &
40 Haryana High Court, which he referred to
as "the middle path"). According to him, it
is a well-established rule of statutory
interpretation that the use of the phrase
"includes y" after "means x" is meant to
45 expand the ordinary definition of "x", to
cover "y" as well. He, therefore, submitted
that the formula "means x and includes y"
should "enure to a wider interpretation
being given to the definition rather than a
50 restrictive one." Mr. Krishnan further
argued that a combined reading of Section
2(wa) of the Cr.P.C., the word "injury" in
the Indian Penal Code, and the 154th Law
Commission Report, all point to the fact
55 that mental injury and emotional suffering
is included within the meaning of "injury",
under S. 2(wa) of the Cr.P.C. At the same
time, Mr. Krishnan cautioned that a broad
definition should not lead to opening a
60 floodgate of claims, which can undermine
the rights of the accused. The Amicus
Curiae urged the court to accept a wider
interpretation of the term "legal heir". He
argued that "the words 'legal heir' must be
65 understood to mean all legal heirs pursuant
to the very purpose of the Amendment and
the expansive definition prescribed
therein." Relying upon the judgment of the
Division Bench of this Court in Dharam
70 Pal v. Delhi Administration, 2009 (110)
DRJ 185 (DB) - where the word "legal
heir" was expanded to include
testamentary successors, the Amicus
Curiae submitted that the elucidation of
75 the term "heir" depends upon context, and
in particular, upon the "intention and
scheme of the legislation in which the
question occurs." Thus, there was no
warrant for restricting "legal heirs" to
80 "those who have the first right of
succession according to the rules of
devolution of property."
A. 3 (b) On behalf of accused
Learned counsel for the accused in Crl. A.
85 No. 1451/2012, on the other hand,
supported the judgment and reasoning in
Chattar Singh (supra). He urged that the
narrow, personal law based interpretation
adopted in Chattar Singh (supra) is in
90 consonance with statutory intent, because
enlarging locus, based on potentialities of
193
 various heirs to succeed to property, would
lead to uncertainty vis-`-vis accused, who
would always be under the specter of
multiple appeals by different heirs who
5 may all not choose to approach the Court
at the same time. It was contended that the
right of appeal against acquittal, being an
exception to the rule, and introduced by
way of proviso, should be interpreted
10 strictly and narrowly, rather than
expansively, to ensure that the accused's
acquittal - which is an affirmation of his or
her badge of innocence - is not
endangered. Mr. Krishnan Venugopal,
15 learned Senior Counsel for another
accused, also commended adoption of the
reasoning in Chattar Singh (supra).
According to him the proviso to Section
372, as far as it creates a right of appeal
20 from an acquittal, is an exception to the
general rule of the Cr.P.C., according to
which appeals from acquittals are to be
admitted according to the discretion of the
court based on settled law as to how leave
25 to appeal is granted. Consequently, and in
light of the fact that the proviso had a
direct impact upon the right of the accused
to the "double presumption of innocence"
after acquittal, "victim" under Section 372
30 ought to be interpreted strictly.
In its written submissions, the seventh
respondent has supported these
submissions, arguing that a statutory
provision providing for appeal against
35 acquittal must be construed strictly
because it encroaches upon protections
granted to an accused under our criminal
justice system. It is also submitted that the
right of the accused that is at stake is the
40 right to protection against double jeopardy.
In addition, the said seventh respondent
relies upon J.V. Thakur v. State of
Maharashtra, (2009) 7 SCC 104 and
Sukhdev Singh v. State of Haryana, (2013)
45 2 SCC 212 for the general proposition that
criminal statutory provisions affecting the
rights of the accused ought to be
interpreted strictly.
This Court notes at the outset that the
50 question of double jeopardy is irrelevant to
the construction of the proviso to Section
372. Double jeopardy is the protection
against a second trial after an acquittal,
while the proviso guarantees a right to
55 appeal. Appeal proceedings are not
equivalent to a retrial.
A. 3 (c) Contentions on behalf of the
appellants:
The accused's submissions are disputed by
60 Mr. Kaushik Dey, learned counsel for the
appellant. He argued that far from being
construed strictly, the proviso to Section
372 is a beneficial legislation, and should
be construed liberally. He relies upon the
65 Supreme Court judgment in Yudhistir v.
Ashok Kumar, 1987 (1) SCC 204, for this
proposition (a case about the interpretation
of the Rent Act). He further argues that the
word "victim" is identical in scope to the
70 phrase "aggrieved person", and both ought
to be construed broadly.
A. 4 Analysis and Conclusions
(a) Is proviso to Section 372 an exception
The issue as to the interpretation of the
75 proviso to Section 372 is not a part of the
reference; yet it is integral to the two
questions referred and in the opinion of the
court, requires to be addressed. This Court
starts by noting that the victims' right to
80 appeal has been framed in the language of
a proviso to Section 372 of the Cr.P.C. As
held in A.N. Sehgal v. Raje Ram Sheoram,
AIR 1991 SC 1406, it is well-accepted that
normally, a proviso "carves out an
85 exception to the main provision to which it
has been enacted as a proviso and to no
other." This, however, is subject to
context. The Supreme Court, in S.
Sundaram Pillai v. V.R. Pattabiraman, AIR
90 1985 SC 582, held that a proviso may be
of four different types: in one set of
circumstances,
194
 "it may be embedded in the Act itself as to
become an integral part of the enactment
and thus acquire the tenor and colour of
the substantive enactment itself."
5 Emphasizing that undue importance
should not be given on the appellation
(explanation, proviso, saving clause, etc)
and rather, the intent of the law maker
should be given effect, the Supreme Court,
10 in State of Bombay v. United Motors AIR
1953 SC 252 ruled that:
"It may be that the description of a
provision cannot be decisive of its true
meaning or interpretation which must
15 depend on the words used therein but,
when two interpretations are sought to be
put upon a provision, that which fits the
description which the Legislature has
chosen to apply to it, is, according to
20 sound canons of constructions, to be
adopted, provided of course, it is
consistent with the language employed in
preference to the one which attributes to
the provision a different effect from what
25 it should have according to its description
by the Legislature."
This thought was brought home more
recently in State of Kerala v. B. Six
Holiday Resorts (P.) Ltd. where the
30 Supreme Court held as follows:"32. A
proviso may either qualify or except
certain provisions from the main
provision; or it can change the very
concept of the intendment of the main
35 provision by incorporating certain
mandatory conditions to be fulfilled; or it
can temporarily suspend the operation of
the main provision. Ultimately the proviso
has to be construed upon its terms".
40 It is the intention of the legislature,
therefore, which is paramount.
In the present context, given the text of
Section 372 and the scheme of the Act, it
is clear that the proviso establishes an
45 independent right, and must be interpreted
within that framework. Section 372 forbids
appeals unless otherwise authorized by the
Code, or by another law. The proviso,
however, states that the victim shall have
50 the right to appeal under certain
circumstances. Given the rule enacted in
Section 372, it cannot be said that the
proviso to that provision carves out an
exception to the rule. According to the rule
55 in Section 372, appeals must be in
accordance with the Code; according to
the proviso - which is itself part of the
Code - victims have the right to appeal
under certain circumstances. At various
60 other places in the Cr.P.C., appeal
procedures are specified. For instance,
Section 378 stipulates the procedure in
case of appeals from acquittal, and Section
378(3) specifies that "no appeal under
65 Sub-Section (1) or Sub-Section (2) shall be
entertained except with leave of the High
Court." The proviso to Section 372
dispenses with the requirement of leave in
case it is the victim who is appealing.
70 From the scheme of the Act, therefore, it
seems clear that the proviso is better
understood to be one of the many
provisions governing appeals under
Chapter 29 of the Cr.P.C. While Section
75 372 enacts that no appeal shall lie except
as provided for by the Code, it refers to the
various provisions of Chapter 29,
including the proviso, each of which
prescribe the requirements and procedures
80 for appeals under different circumstances.
The proviso, therefore, is not an exception
to Section 372, but a stand-alone legal
provision. A Division Bench of the
Bombay High Court in Balasaheb
85 Rangnath Khade v. State of Maharashtra
(Crl. A. No. 991 of 2011 with Crl. A. No.
992 of 2011) arrived at the same
conclusion, and this Court concurs with
that view.
90 A. 4(b) Scope of Proviso to Section 372
Cr. PC- "victim"
S. 2(wa) defines "victim" as "a person who
has suffered any loss or injury caused by
195
 reason of the act or omission for which the
accused person has been charged." As
various High courts have noted the words
"loss" and "injury" are not defined in the
5 Cr.P.C., but have been defined in the
Indian Penal Code. Section 44 of the IPC
defines "injury" as "any harm whatever
illegally caused to any person, in body,
mind, reputation or property." "Loss" is
10 defined in terms of "wrongful loss", and
refers to "loss by unlawful means of
property to which the person losing it is
legally entitled."
The use of the term "whatever" as
15 qualifying the word "harm", and the
expansive nature of the terms "body, mind,
reputation or property", reveals that the
Division Bench's approach in limiting the
scope of the term to the "direct and most
20 proximate result of the crime" in terms
only of physical injuries, is not entirely
borne out by the statute. One cannot
assume that the "direct and most proximate
result of a crime" refers only to the
25 physical harms resulting from the offence,
as there can be direct and proximate
emotional injuries that equally resulting
from the crime. Undoubtedly there should
be a relationship of proximity between the
30 injury and the act constituting the offence.
What is important to note is that proximity
is not a hard-and-fast relationship, which
can be determined by an antecedent rule.
Consequently, we agree with the view of
35 the Patna High Court, to the extent that
"it has to be ultimately left to the prudence
of the Court to assess whether the
appellant before it had actually suffered
any "loss" or "injury" in the course of the
40 crime complained of, or not, so as to be
eligible to maintain his appeal in terms of
the said proviso."
The Court holds this submission to be
insubstantial. The drafting history of the
45 Amendment does not reveal why the word
"victim" was preferred to "person
aggrieved", or whether the motivation for
choosing the former was to narrow the
class of people entitled to maintain an
50 appeal, or even whether "victim" does, in
the first place, have a narrower scope than
"person aggrieved." Without further
evidence of Parliamentary intent, this
Court is not persuaded that the use of the
55 term "victim" in place of "person
aggrieved", by itself, reflects a conscious
narrowing of maintainability by the
legislature. On the other hand, a plain
reading of S. 2(wa), reveals that "victim"
60 is defined as one who suffers "any loss or
injury."
The Court further notes that this
understanding of "victim" is consistent
with the 1985 United Nations Declaration
65 of Basic Principles of Justice for Victims
of Crime and Abuse of Power, which was
the basis of the 154th Law Commission's
report. That Declaration stipulates that "the
term "victim" also includes, where
70 appropriate, the immediate family or
dependants of the direct victim." The term
"where appropriate" indicates that the test
is proximity-dependent, and is to apply on
a case-to-case basis.
75 The European Union Council Framework
Decision of 15 March 2001, on the
standing of victims, defines "victim" to
mean "a natural person who has suffered
harm, including physical or mental injury,
80 emotional suffering or economic loss,
directly caused by acts or omissions that
are in violation of the criminal law of a
Member State."
To restate the correct position, there has to
85 be a relationship between the injury and
the person who suffered it, i.e. the
"victim". Consequently, the injury (to the
victim who suffers it) has to be proximate;
it cannot be remote. At the same time,
90 given the nature of what is "injury" (under
Section 44, IPC) the enquiry of proximity
would be fact dependent. Courts would
assess such issues, based on established
principles, and balancing the facts on a
196
 case to case basis. To conclude the
discussion, it is also emphasized that
where the victim is unable (by reason of
trauma, shock or other disability) to make
5 a choice of preferring an appeal, those who
are in a position to do so on her or his
behalf (and who might also have suffered
some proximate harm) - such as relatives,
foster children, guardians, fianci or live-in
10 partners etc., can maintain an appeal under
the proviso to Section 372.
A. 4(c) Correct interpretation of the term
"legal heirs"
With the above observations concerning
15 the term "victim" the Court now proposes
to deal with the term "legal heirs". There
can be no doubt of the fact that "legal
heirs" is a term of art, and must be given a
legal meaning. It is also true that the
20 concept of "legal heirs" is referenced to
personal law. Insofar as the Court should
look to personal law to construe the
meaning of the term, this Court is in
agreement with the Division Bench's
25 judgment.
If "injury" denotes harm caused to one's
mind, then a 'victim' by this definition,
must encompass not only the 'victim' in the
natural and ordinary sense of the term, but
30 also those near and dear to him or her,
because they experience 'harm to the mind'
or mental anguish by virtue of the harm to
'body, mind, reputation or property'
suffered by a loved one. Consequently, the
35 spouse, parents, children, and siblings of a
deceased victim of a crime must
automatically also fall within the definition
in Section 2(wa), for having suffered
"injury" by reason of the act or omission of
40 the accused. Thus, the "means X and
includes Y" clause must be interpreted
keeping this context in mind.
This Court is of the view that while
Section 2(wa) includes "legal heirs" within
45 "victim", the first part of the definition
cannot be lost sight of. In other words, the
first part i.e. "victim" means a person who
has suffered any loss or injury caused by
reason of the act or omission for which the
50 accused person has been charged" is
already of wide enough import to include
at least some legal heirs within its ambit.
Therefore, "victim" by its natural and
ordinary meaning, given the definition of
55 "injury" in Section 44 of the IPC, must
include those legal heirs that suffer 'harm
to the mind', on account of the injury to a
loved one.
A criminal offence results in personal
60 injury to the victim, which is in no way
related to the estate of the victim; plainly
then, the position in the order of
succession, of any heir, is immaterial in
deciding an heir's entitlement to assist in
65 the prosecution/file an appeal against the
trial court's judgment.
It is also important to notice that "heir" or
a "legal heir" is a term of wide ambit;
according to the Seventh Edition of the
70 Black's Law Dictionary means a "person
who, under the laws of intestacy, is
entitled to receive an intestate decedent's
property, esp. real property." The position
is alike in Indian law. For instance,
75 Angurbala Mullick v. Debabrata Mullick,
AIR 1951 SC 293 held that heirs are not
just issues, but extend to all persons
entitled to the property of the deceased by
the laws of inheritance.
80 This Court is of the further opinion that the
laws of intestacy …bear no necessary
relation to the kind of rights granted to the
victim simpliciter (that can, consequently,
be exercised by the 'legal heir'). The first
85 set of rights granted are in the area of
compensation under Sections 357A-357C
and the second set of rights are in the area
of the victim's participation in the
prosecution of the trial and appeal under
90 Sections 24(8) and 372.
Section 357A envisages that the victim "or
his dependents who have suffered loss or
197
 injury as a result of the crime" are entitled
to compensation rights. This means that
the entitlement rests in the victim
simpliciter, or his/her dependents, where
5 the victim does not advance a claim. One
need not go far to seek the reason for
interpreting this provision as restricted to
the victim simpliciter; the use of "or"
renders "victim" disjunctive from the
10 clause "or his dependents who have
suffered loss or injury", thus compelling
the inference that the dependents' right to
advance compensation claims is
alternative to that of that of the victim. See
15 Fakir Mohd. (dead) by LRs. v. Sita Ram
MANU/SC/1676/2001 : (2002 (1) SCC
741, R.S. Naik v. A.R. Antuley
MANU/SC/0102/1984 : (1984) 2 SCC
183, Kamta Prasad Aggarwal v. Executive
20 Officer, Ballabgarh,MANU/SC/0467/1973
: AIR 1974 SC 685, Manmohan Das Shah
v. Bishun Das MANU/SC/0248/1966 :
AIR 1967 SC 643. Therefore, if the term
"victim" were to be interpreted so
25 expansively as to include all legal heirs, at
least within the context of the claim to
compensation, the list of lineal and other
descendants that qualify as heirs would be
far longer than the list of "dependents who
30 have suffered loss or injury as a result of
the crime". Necessarily then, "victim" in
Section 357A has to refer to victim
simpliciter, failing which (on account of
his/her death), the dependants of the
35 deceased victim may make claims
…Therefore, to stress excessively on the
hyper-technical nuances of the laws of
intestacy to locate the right of the victim's
heirs, akin to the inquiry in civil law
40 actions, would be contrary to the logic of
the criminal trial process itself.
This Court finds support for its view that
legal heir must be so interpreted from the
standpoint that statutes are not enacted in a
45 vacuum; and that consequently,
longstanding principles of law, that form
the legal context for interpretation, are not
displaced by the mere use of general words
in a statute. This was recognized in
50 Pierson v. Secretary of State for the Home
Department, (1997) 3 All ER 577, 604
(HL) and in several other decisions like R
v. Secretary of State for the Home
Department, ex parte Simms, (1999) 3 All
55 ER as well as B v. Director of Public
Prosecution, (2000) 1 All ER 833, 844,
845 (HL) (Lord Steyn).
In every case, the Court is bound to
consider what is the interest which brings
60 the petitioner to court and whether the
interest of the public community will
benefit by the grant of special leave. In this
enquiry, the Court would perhaps prefer to
be satisfied whether or not the State has
65 good reason for not coming forward itself
to petition for special leave. We think that
the Court should entertain a special leave
petition filed by a private party, other than
the complainant, in those cases only where
70 it is convinced that the public interest
justifies an appeal against the acquittal and
that the State has refrained from
petitioning for special leave for reasons
which do not bear on the public interest
75 but are prompted by private influence want
of bona fide and other extraneous
considerations. It is perhaps desirable to
keep in mind that what follows from the
grant of special leave is an appeal, and the
80 jurisdiction must, therefore, be invoked by
a petitioner possessing a locus standi
recognised in law."
The Court holds that developing a case-by-
case proximity test for the meaning of
85 "victim", and an understanding of "legal
heirs" that tracks the relevant personal law,
but is not limited to only those legal heirs
entitled to succeed to property, achieves an
adequate balance between the two
90 interests. So long as the existence of a
legal relationship is established between
the (deceased) victim and the one who
seeks to appeal under proviso to Section
372, sufficient locus standi has to be
95 conceded.
198
 To summarize, the conclusions from the
above discussion are:
(i) "victim" in Section 2(wa), by virtue of
being defined as "a person who has
5 suffered any loss or injury" must include a
person who has suffered "harm caused to
the mind', given that Section 2(y) of the
Code of Criminal Procedure incorporates
the definition of "injury" in Section 44 of
10 the IPC into the Code.
(ii) The "means X and includes Y" clause
in Section 2(wa) cannot be interpreted so
as to result in the included meaning Y
excluding the actual meaning X of the
15 term being defined; thus "legal heirs" who
are included within the definition of the
term 'victim' cannot exclude those who
actually fall within the definition of
'victim' by virtue of emotional harm
20 suffered, such as the father or siblings of a
deceased victim or other categories of
persons (based on proximity) noted
previously.
(iii) The laws of inheritance, which decide
25 one's "legal heirs", are not intended to be
solely determinative of the entitlement to
exercise the rights of the victim, in the
criminal trial/appeal, on his/her death,
application of Heydon's mischief rule,
30 given that the object of the 2008
Amendment Act was to ensure the
involvement of the victim, who has a
presumably personal interest in the fair
and efficient prosecution of the
35 trial/appeal. Resultantly, it is
impermissible for an appellate court to
shut out an appeal by a "legal heir" based
75
only on her/his not being an immediate
heir, or being lower down in hierarchy vis-
40 `-vis entitlement to the crime victim's
estate.
This has also been the view of most of the
High Courts, with respect to this question.
The Punjab and Haryana High Court, in
45 Tata Steel v. Atma Tube Projects, (2014) 1
PLR 1, CRM-790-MA-2010, held that:
"Since right to appeal is a substantive right
and it cannot be inferred by implication
unless the Statute expressly provides so,
50 the only inescapable conclusion would be
to hold that the right to appeal given to a
'victim' under proviso to Section 372of the
Code is prospective and has become
enforceable w.e.f. December 31, 2009
55 only. A 'victim' is entitled to prefer appeal
in respect of any type of order referred to
in the proviso to Section 372 if such order
has been passed on or after December 31,
2009 irrespective of the date of registration
60 of FIR or the date of occurrence etc. To be
more specific, it is clarified that it is the
date of passing of the order to be appealed
from and not any other fact situation,
which shall determine the right to appeal
65 of a 'victim'."
The restrictive interpretation of "victim"
and "legal heir" in Chattar Singh (supra),
is, in the light of the preceding discussion,
overruled. The reference is answered in the
70 above terms. The Registry is directed to
place the appeal before the concerned
Roster Bench, subject to the orders of
Hon'ble the Chief Justice, on 6th July,
2015.
199
 Arvind Mohan Sinhavs.Amulya Kumar Biswas and Ors AIR 1974 SC 1818
Objective:
1. To discuss the provisions of Probation of Offenders Act
2. Aim and Object of Probation of Offenders Act
Y.V. Chandrachud, J.
These appeals are brought by leave
granted by the High Court of Calcutta
5 under Article 134(1)(c) of the
Constitution.
Cr. A. No. 114 of 1970: On May 29, 1968
gold bars and sovereigns bearing foreign
markings were seized from the
10 respondents by customs officers, Calcutta.
Respondents were charged under Section
135, Customs Act, 1962 for being in
possession of goods which they had reason
to believe to be liable to confiscation under
15 Section 111 of that Act. It was alleged that
the goods were imported into India
without the requisite permit and without
payment of duty and were therefore liable
to confiscation under Section 111(d) of the
20 Customs Act. The respondents were also
charged under Rules 126P(1)(i) and
126P(2)(ii) of the Defence of India Rules,
1962, for failure to make a declaration in
respect of the gold found in their
25 possession.
The respondents pleaded guilty to the
charges but cited facts in extenuation of
the offences. The learned Presidency
Magistrate, 8th Court, Calcutta, convicted
30 them of the offences of which they were
charged but he directed, on the faith of a
report made by the Probation Officer, that
they should be released under Section 4(1)
of the Probation of Offenders Act, 1958 on
35 their executing a bond of Rs. 1000/- each
with one surety in like amount,
undertaking to appear and receive the
sentence whenever called upon and to
keep peace and be of good behavior for a
40 period of two years. Respondents are
young boys normally engaged in
agriculture. To us they seem to be carriers
who were carrying the gold for a small tip
but the learned Magistrate believed their
45 defence that they had purchased the gold
for the marriage of the sister of one of
them. The gold which was of the value of
about Rs. 7800/- was already confiscated
in the proceedings under the Customs Act.
50 The appellant, an Assistant Collector of
Customs, filed on behalf of the
Department a revision application (No.
635 of 1969) in the High Court of Calcutta
against the judgment of the learned
55 Magistrate. Later, it was converted into an
appeal under Section 11(2) of the
Probation of Offenders Act.
The High Court disposed of three matters
by a common judgment which is reported
60 in Aravinda Mohan Sinha v. Prohlad
Chandra Samanta AIR1970Cal437 Two
out of these are before us; the third,
Criminal Appeal No. 113 of 1970 is
reported to be unready. The High Court
65 held in the matter under consideration that
though Rule 126PP(2)(ii) of the Defence
of India Rules prescribes a minimum
sentence of imprisonment for a term of not
less than 6 months", it cannot override the
70 provisions of the Probation of Offenders
Act and therefore it was competent to the
learned Magistrate to release the
respondents under that Act. The only
question in this appeal is whether the
75 Probation of Offenders Act, 20 of 1958,
can apply to offences under the Customs
Act, 1962 and to those under Part-XII-A of
the Defence of India Rules, 1962, intittled
"Gold Control".
80 Section 135(b)(ii) of the Customs Act,
1962, under which the respondents have
200
 been convicted prescribes a punishment of
2 years imprisonment or fine or both for
acquiring possession of or for being in any
way concerned in carrying, keeping etc.
5 any goods which a person knows or has
reason to believe to be liable to
confiscation under Section 111. Under
Section 111(d), goods imported contrary to
any prohibition imposed by or under the
10 Customs Act or by any other law are liable
to confiscation. The offence committed by
the respondents consists in their being in
possession of or in purchasing the gold
bearing foreign markings which was
15 evidently imported into India without a
valid permit issued by the Reserve Bank of
India, an act prohibited by Section 8(1) of
the Foreign Exchange Regulation Act,
1947. On the prosecution leading evidence
20 to establish the ingredients of this offence,
respondents pleaded guilty to the charee.
Rule 126P(1)(i) of the Defence of India
Rules, 1962 provides to the extent material
that whoever omits or fails to make a
25 declaration as required by Rule 126 I
without a reasonable cause shall be
punishable with imprisonment for a term
which may extend to one year or a fine or
with both. The relevant part of Rule 126 I
30 provides that every person shall within the
specified period make a declaration to the
Administrator in the prescribed form as to
the quantity of gold, other than ornaments
owned by him. Rule 126P (2)(ii) provides
35 that whoever has in his possession or
under his control any quantity of gold in
contravention of the provisions of Part
XII-A ("Gold Control"), shall be
punishable with imprisonment for a term
40 of not less than 6 months and not more
than 2 years and also with fine.
Respondents had made no declaration of
the gold in their possession and pleaded no
reasonable cause for omitting to do so.
45 They pleaded guilty to these charges as
well.
The Probation of Offenders Act,
1958,Under Section 4(1): When any
person is found guilty of having
50 committed an offence not punishable with
death or imprisonment for life and the
Court by which the person is found guilty
is of opinion that, having regard to the
circumstances of the case including the
55 nature of the offence and the character of
the offender, it is expedient to release him
on probation of good conduct, then,
notwithstanding anything contained in any
other law for the time being in force, the
60 Court may, instead of sentencing him at
once to any punishment, direct that he be
released on his entering into a bond, with
or without sureties, to appear and receive
sentence when called upon during such
65 period, not exceeding three years, as the
Court may direct, and in the meantime to
keep the peace and be of good behavior.
We are unable to accept the appellant's
contention that the probation of Offenders
70 Act can have no application to offences
consisting of the contravention of the
Customs Act or the "Gold Control" Rules
contained in Part XII-A of the Defence of
India Rules, 1962. True, that these
75 offences are fundamentally of a different
genre and are calculated to involve
consequences of a far reaching character
as compared with offences under the
general law of Crimes. These are mostly
80 economic offences which in conceivable
cases may pose a grave threat to the
economy and the security of the country.
But every contravention of the Customs
Act or the "Gold Control" Rules cannot,
85 without more, be assumed to be fraught
with consequences of national dimensions.
The broad principle that punishment must
be proportioned to the offence is or ought
to be of universal application save where
90 the statute bars the exercise of judicial
discretion either in awarding punishment
or in releasing an offender on probation in
lieu of sentencing him forthwith. The
words of Section 4(1) of the Probation of
95 offenders Act are wide and would
evidently include offences under the
customs Act and the Gold Control Rules.
201
 The Probation of Offenders Act is a
reformative measure. A jail term should
normally be enough to wipe out the stain
of guilt but the sentence which the society
5 passes on convicts is relentless. In
recalcitrant cases, punishment has to be
deterrent so that others similarly minded
may warn themselves of the hazards of
taking to a career of crime. But the novice
10 who strays into the path of crime ought, in
the interest of society, be treated as being
socially sick. Crimes are not always rooted
in criminal tendencies and their origin may
lie in psychological factors induced by
15 hunger, want and poverty. The Probation
of Offenders act recognises the importance
of environmental influence in the
commission of crimes and prescribes a
remedy whereby the offender can be
20 reformed and rehabilitated in society. An
attitude of social defiance and recklessness
which comes to a convict who, after a jail
term, is apt to think that he has no more to
lose or fear may breed a litter of crime.
25 The Dharmashastras did not ordain similar
punishment for similar offences
irrespective of the antecedents and the
physical and mental condition of the
offender. Dr. P.K. Sen has pointed out in
30 his Tagore Law Lectures on "Penology
Old and New" (1943) (p. 110) that the
directions given by the ancient law-givers
in the matter of punishment compare
favourably with the advanced modern
35 systems as regards the relevance of the
objective circumstances attendant on the
commission of the crime and the
subjective limitations of offenders.
Probationary laws were passed by several
40 erstwhile provinces prior to Independence
but their provisions were seldom enforced
in practice. Section 562, CrPC, also
contains a provision enabling the court to
release certain offenders on probation of
45 good conduct instead of sentencing them
at once.
An offender released on probation is
convicted but not forthwith sentenced in
the sense of penal laws. Under the
50 disposition made by the court the sentence
is suspended during the period of
probation. Section 4(1) of the Act provides
that instead of sentencing the offender "at
once", the court may direct his release on
55 his entering into a bond to "receive
sentence when called upon" during the
probationary period and in the meantime
to keep the peace and be of good behavior.
Thus it is only in a limited, though a
60 socially significant, sense that the Act
constitutes as exception to the broad and
general principle of criminal law
embodied, for example, in Sections
245(2), 258(2), 306(2) and Section 309(2),
65 CrPC, that a sentence shall follow on a
conviction.
The provisions of the Act are indeed of
such beneficence that in Ratan Lal v.
States of Punjab 1965CriLJ360 this Court
70 remanded a matter to the High Court with
a direction that the High Court or the
Sessions Court should consider whether
the Act should not be applied to an
accused who was convicted on a date prior
75 to the date on which the Act was brought
into operation in the particular area and
even though such a prayer was not made to
the Sessions Court or in revision to the
High Court and could not, of course, be
80 made in the trial court. Subba Rao J. who
gave the majority judgment said : "The
Act is a milestone in the progress of the
modern liberal trend of reform in the field
of penology. It is the result of the
85 recognition of the doctrine that the object
of criminal law is more to reform the
individual offender than to punish him."
Raghubar Dayal J. dissented on the point
whether the Act could be applied to an
90 accused who was convicted before it came
into force.
In Isher Das v. The State of Punjab
1972CriLJ874 the trial court released on
probation an offender who was convicted
95 under Section 7(1) of the Prevention of
Food Adulteration Act, 1954. The High
202
 Court set aside that order and sentenced
the accused to imprisonment for six
months and a fine of Rs. 1000/-. In default
of the payment of fine the accused was
5 ordered to undergo imprisonment for a
further period of a month and a half.
Setting aside the order of the High Court
this Court restored that of the Magistrate
with the observation that though
10 adulteration of food was a menace to
public health, the application of the
Probation of Offenders act could not be
excluded in cases of persons found guilty
of food adulteration.
15 There can therefore be no legal
impediment in applying the provisions of
the Probation of offenders Act to the
respondents. Whether on the facts and
circumstances of the case the respondents
20 may be released on probation cannot be
put in issue at this late stage because it was
neither urged in the trial court nor before
the High Court that by reason of the
antecedents or the propensities of the
25 respondents it was not expedient to extend
to them the benefit of the Act. The
discretion vested in the trial court in this
behalf must of course be exercised
according to rules of reason and justice but
30 the learned Magistrate had called for the
report of the Probation Officer and it was
on the basis of that report that the
respondents were released on probation.
The High Court has upheld the exercise of
35 that discretion and we see no reason to
interfere with the concurrent factual
evaluation of the circumstances of the
case. Accordingly we confirm the
judgment of the High Court.
40 Criminal Appeal No. 115 of 1970:
On June 27, 1968 three bars of foreign
gold were found on the person of the
respondent. He pleaded guilty at the trial
where upon the learned Presidency
45 Magistrate, 6th Court, Calcutta convicted
him under Section 135, Customs Act, 1962
and under Rule 126(p)(i) and 126(p)(2) of
the Defence of India Rules, 1962. The
respondent was sentenced to pay a fine of
50 Rs. 150 for the offence under the customs
Act and a fine of Rs. 100 for the offence
under Rule 126 P (1)(i). No separate
sentence was imposed for the offence
under Rule 126 P(2)(ii).
55 In appeal the High Court of Calcutta
confirmed the conviction and sentence
under the Customs Act. Regarding the
contravention of the two Rules, the High
Court held that no declaration need have
60 been made by the respondent to the
Administrator as the gold of which the
respondent was in possession was
smuggled gold and not "legal" gold.
According to the High Court "the
65 legislature never expected that smuggled
gold would be declared". The High court
therefore set aside -the conviction and
sentence imposed on the respondent for
contravention of the "Gold Control" Rules.
70 Part XII-A "Gold Control" (consisting of
Rules126A to 126Z) was inserted in the
Defence of India Rules, 1962 by G.S.R. 89
dated January 9, 1963 Rule 126A (d)
defines gold for the purposes of Part XIIA
75 thus: “gold” means gold, including its
alloy, whether virgin, melted, remelted,
wrought or unwrought, in any shape or
form of a purity of not less than nine carats
and includes any gold coin (whether legal
80 tender or not), any ornament and any other
article of gold;
We see no justification in the scheme of
the Rules for the view taken by the High
Court that smuggled gold is not
85 comprehended within Rule 126P of the
Gold Control Rules. The definition of
"gold" in Rule 126A (d) is couched in
wide terms and it does not make any
distinction between smuggled gold and
90 gold lawfully possessed. The High Court
says that the legislature could not have
intended that a person in possession of
smuggled gold should make a declaration
in regard thereto. The intention of the
203
 legislature must be gathered primarily and
principally from the words used by it and
the definition of "gold" carves out no
exception in favour of smuggled gold.
5 Secondly, if the intention of the legislature
as reflected in the scheme of a law is to
control the meaning of the words used in a
particular Section or Rule, it strikes us as
surprising that the obligation to declare
10 gold should be imposed on lawful
possessors of gold but should leave
untouched the possession by smugglers or
their agents of gold smuggled into the
country. Under the definition contained in
15 Rule 126A (d), "gold means gold" and no
rule of statutory construction can permit
the definition to be altered materially so as
to read: "Gold means gold but shall not
include smuggled gold". To put such a
20 construction on the definition is to coin a
new definition and therefore to legislate.
The word "gold" is used at several places
in Part XIIA and it is a well-recognised
rule of construction that the same word
25 should receive the same meaning in a
collocation. Rule 126A(c)(ii) defines a
dealer as a person who carries on the
business of buying, selling, supplying etc.
gold for the purpose of making ornaments.
30 Rule 126 B(1)(a) provides that a dealer
shall not make or manufacture any article
of gold other than ornament; Sub-clause
(b) provides that a refiner shall not make
or manufacture any article of gold other
35 than primary gold; Sub-clause (c) provides
that no other person shall make or
manufacture any article of gold, unless the
dealer, refiner or such other person is
authorised by the Administrator to make or
40 manufacture such an article. Rule 126C
provides that no dealer shall make and no
person shall place any order for making an
ornament containing gold of a purity
exceeding 14 carats. Rule 126D contains a
45 prohibition on loans being granted on the
security of gold unless such gold is
included in a declaration made under Rule
1261. Rule 126F requires every dealer and
refiner to submit a return in regard to the
50 gold in his possession of control. under
Rule 126G dealers and refiners must keep
an account of the gold bought or sold by
them. Rule 1261, with which we are
directly concerned in this case, provides
55 that, every person other than a dealer or a
refiner, shall within the stipulated period
make a declaration to the, Administrator as
to the quantity, description and other
particulars of gold other than ornament),
60 owned by him. Clause (3) of this Rule
provides (that no person who is required to
make a declaration shall acquire any gold
other than ornament except by succession
or under a permit grantees by the
65 Administrator. Rule 126L confers power
under the authority of the Administrator to
seize any gold in respect of which the
provisions of Part XIIA are contravened.
Under Rule 126 M gold thus seized is
70 liable to confiscation. Rule 126P (1)(i)
makes failure or omission to make a
declaration as required by Rule 1261
punishable. Rule 126P (2)(ii) prescribes
punishment for possession of gold in
75 contravention of the provisions of Part
XIIA.
It is manifest from the language,
intendment and the scheme of these Rules
that the word "gold" covers not only gold
80 which is lawfully possessed but gold in
any form or shape and whether possessed
lawfully or otherwise. In the economic
context in which Part XIIA was inserted
into Defence of India Rules in 1963, it is
85 impossible to hold that the legislature
wanted to regulate the possession and
control of gold lawfully possessed as
distinguished from smuggled gold. It
seems to us clear that the prohibition in
90 regard to the manufacture of articles of
gold would apply even to articles made out
of smuggled gold and it would be no
defence for a dealer, refiner or for any
other person to say that he had not
95 contravened the provisions of Rule 126B
because he had made an article out of
smuggled gold. Such a defence, we
suppose, would be all the worse for him.
204
 Similarly, it would be no defence to a
charge under Rule 126D to say that a loan
was advanced on the pledge of smuggled
gold. The various Rules which we have set
5 out above make it clear that the object of
introducing Part XIIA. is, as shown for
example by Rule 126H, that if any gold is
acquired a declaration has to be made in
regard thereto, no matter how or by what
10 means it is acquired. We are therefore
unable to agree with the High Court that
the respondent was not liable to make
under Rule 1261 a declaration as to the
gold in his possession and that therefore
15 Rule 126P is not attracted. The view taken
by a learned single Judge of the High
Court of Mysore in K. Vishnumoorthi v.
State of Mysore and Anr. that "gold" as
defined in Part XIIA includes smuggled
20 gold is, in our opinion, correct. We are not
concerned in this case to determine
whether on the particular facts of the case
the Mysore High Court was right in
refusing to apply Section 4 of the
25 Probation of Offenders Act to the case
before it.
The order of the learned Magistrate
convicting and sentencing the respondent
under Section 135 of the Customs Act as
30 also under Rule 126P of the Defence of
India Rules must therefore be restored.
205
 Subramanian Swamy and Ors.vs.Raju Thr. Member Juvenile Justice Board and Anr.
2014 (8) SCC 390
Objectives
1. To do comparative study of age of Juvenility
2. Aim and object of Juvenile Justice Act
Ranjan Gogoi, J.
On 16th December, 2012 a young lady (23
years in age) and her friend were returning
home after watching a movie in a
5 multiplex located in one of the glittering
malls of Delhi. They boarded a bus to
undertake a part of the journey back home.
While the bus was moving, 5 persons
brutally assaulted the young lady, sexually
10 and physically, and also her friend. Both of
them were thrown out of the bus. The
young lady succumbed to her injuries on
29.12.2012.
Five persons were apprehended in
15 connection with the crime. One of them,
identified for the purpose of the present
case as Raju, was below 18 years of age on
the date of commission of the crime.
Accordingly, in compliance with the
20 provisions of the Juvenile Justice Act,
2000 (as amended and hereinafter referred
to as 'the Act') his case was referred for
inquiry to the Juvenile Justice Board. The
other accused were tried in a regular
25 sessions court and have been found guilty,
inter alia, of the offences Under Section
376(2)(g) and Section 302 of the Indian
Penal Code, 1860 (for short "the Penal
Code"). They have been sentenced to
30 death by the learned trial court. Their
appeal against the aforesaid conviction and
the sentence imposed has since been
dismissed and the death penalty has been
confirmed by the High Court of Delhi.
35 Before the Juvenile Justice Board to whom
the case of Raju was referred for inquiry,
the Petitioners had filed applications for
their impleadment to enable them to
'prosecute' the juvenile alongside the
40 public prosecutor. The Petitioners also
claimed that, on a proper interpretation of
the Act, the juvenile was not entitled to the
benefits under the Act but was liable to be
tried under the penal law of the land in a
45 regular criminal court alongwith the other
accused.
According to the Petitioners, after an
elaborate hearing, the Board had fixed the
case on 25.01.2013 for pronouncement of
50 order on the question of maintainability of
the application filed by the Petitioners and
also on their prayer for impleadment.
However, insofar as the interpretation of
the provisions of the Act for determination
55 of the question whether the offence(s)
allegedly committed by the juvenile is to
be inquired into by the Board or the
juvenile is required to be tried in a regular
criminal court is concerned, the Board had
60 expressed its inability to decide the same
and had directed the Petitioners to seek a
authoritative pronouncement on the said
issue(s) from the High Court.
Accordingly, the Petitioners had instituted
65 a writ proceeding before the High Court of
Delhi, which was registered as Writ
Petition (Crl.) No. 124 of 2013, seeking
the following reliefs:
i. Laying down an authoritative
70 interpretation of Sections 2(I) and 2(k) of
the Act that the criterion of 18 years set
out therein does not comprehend cases
grave offences in general and of heinous
crimes against women in particular that
75 shakes the root of humanity in general.
ii. That the definition of offences Under
Section 2(p) of the Act be categorized as
per grievousness of the crime committed
and the threat of public safety and order.
80 iii. That Section 28 of the Act be
interpreted in terms of its definition, i.e.,
alternative punishment and serious
offences having minimum punishment of
seven years imprisonment and above be
206
 brought outside its purview and the same juvenile out of the purview of the said Act
should be tried by an ordinary criminal in case he had committed an offence,
court. which, according to the Petitioners, on a
iv. Incorporating in the Act, the true interpretation of Section 2(p) of the
5 International concept of age of criminal 55 Act, is required to be identified and
responsibility and diluting the blanket distinguished to justify a separate course
immunity provided to the juvenile offender of action, namely, trial in a regular Court
on the basis of age. of law as a specific offence under the
v. That the instant Act be read down in Penal Code and in accordance with the
10 consonance with the rights of victim as 60 provisions of the Code of Criminal
protected by various fundamental rights Procedure.
including Article 14 and 21 of the In fact, interpretation of the relevant
Constitution of India. (sic) provisions of the JJ Act in any manner by
The High Court by its order dated this Court, if made, will not be confined to
15 23.01.2013 dismissed the writ petition 65 the first Respondent alone but will have an
holding that against the order of the effect on all juveniles who may come into
Juvenile Justice Board the alternative conflict with law both in the immediate
remedies available under the Act should be and distant future. We are, therefore, of the
exhausted in the first instance and in the view that it would be appropriate for us to
20 course thereof the question of 70 hold that the special leave petition does not
interpretation of the provisions of the Act suffer from the vice of absence of locus on
can well be considered. the part of the Petitioners so as to render
On the very next day, the Board by an the same not maintainable in law.
elaborate order dated 24.01.2013 rejected (sic)…heard
25 the prayer of the Petitioners for 75 Writ Petition (Crl.) No. 204 of 2013 | This
impleadment in the proceeding against the writ petition has been filed by the parents
delinquent and seeking participation of the victim of the incident that had
therein. In the aforesaid circumstances, on occurred on 16.12.2012 seeking the
19.02.2013, Special Leave Petition (Crl.) following reliefs:
30 No. 1953 of 2013 was lodged before this 80 (i) a Direction striking down as
Court challenging the aforesaid order of unconstitutional and void the Juvenile
the High Court of Delhi. Justice (Care and Protection of Children)
The maintainability of the Special Leave Act 2000 (Act No. 56 of 2000) to the
Petition was seriously disputed by the extent it puts a blanket ban on the power of
35 Respondent No. 1 i.e. juvenile Raju as 85 the criminal courts to try a juvenile
well as the Union of India…administration offender for offences committed under the
of criminal justice in India does not Indian Penal Code, 1860; and
envisage the role of a third party/stranger. (ii) a Direction that the Respondent No. 2
Primarily, it is the State which is entrusted be tried forthwith by the competent
40 with the duty of prosecution in the 90 criminal court for the offences against the
discharge of which a limited role so far as daughter of the Petitioners in F.I.R. No.
the complainant/first informant of an 413/12, P.S. Vasant Vihar, New Delhi
offence is concerned and that too in Under Sections
specified situations, is contemplated by the 302/365/376(2)G/377/307/394/395/397/39
45 provisions of the Code of Criminal 95 6/412/201/120B/34 Indian Penal Code.
Procedure. The issues raised being similar to those
All that the Petitioners seek is an arising in Special Leave Petition (Crl.) No.
authoritative pronouncement of the true 1953 of 2013, both cases were heard
purport and effect of the different together and are being disposed of by
50 provisions of the JJ Act so as to take a 100 means of this common order.

207
 Dr. Subramanian Swamy -clarified that he cannot apply to serious and heinous crime
is neither challenging the provisions of committed by juveniles who have reached
Section 2(k) and 2(l) of the Act nor is he the requisite degree of mental maturity, if
invoking the jurisdiction of the Court to the Act is to maintain its constitutionality.
5 strike provision of the Act or for reducing 55 Reliance is also placed on Essa @ Anjum
minimum age of juveniles fixed under the Abdul Razak Memon v. State of
Act as 18 years. Dr. Swamy has contended Maharashtra (2013) 3 SCALE 1 to contend
is that having regard to the object behind that the purport and effect of Section 1(4)
the enactment, the Act has to be read down of the Act must be understood in a limited
10 to understand that the true test of 60 manner.
"juvenility" is not in the age but in the Dr. Aman Hingorani, learned Counsel
level of mental maturity of the offender. urges that the ban on jurisdiction of
This, it is contended, would save the Act criminal courts by Section 7 of the Act is
from unconstitutionality and also further unconstitutional inasmuch as it virtually
15 its purpose. The Act is not intended to 65 ousts the criminal justice system from
apply to serious or heinous crimes dealing with any offence committed by a
committed by a juvenile. The provisions of juvenile. It is argued that what the Act
Sections 82 and 83 of the Indian Penal contemplates in place of a regular criminal
Code have been placed to contend that trial is a non-adversarial inquiry against
20 while a child below 7 cannot be held to be 70 the juvenile where the prime focus is not
criminally liable, the criminality of those on the crime committed but on the reasons
between 7 and 12 years has to be judged that had led the juvenile to such conduct.
by the level of their mental maturity. The The maximum power of 'punishment', on
same principle would apply to all children proof of guilt, is to send the juvenile to a
25 beyond 12 and upto 18 years also, it is 75 special home for three years. The entire
contended. This is how the two statutes i.e. scheme under the Act being substantially
Indian Penal Code and the Act has to be different from what is provided by the
harmoniously understood. The provisions Code of Criminal Procedure for
of Section 1(4) of the Act which makes the investigation of offences and for trial and
30 provisions of the Act applicable to all 80 punishment of offenders, it is submitted
cases of detention, prosecution and that the Act offends a core constitutional
punishment of juveniles in conflict with value namely, the existence of a criminal
law, to the exclusion of all other laws, justice system. The proceedings against
would be unconstitutional if the Act is not the juvenile Raju held by the JJ Board are,
35 read down. Specifically, Dr. Swamy 85 therefore, null and void and the said
contends that in that event the Act will juvenile is liable to be tried by a competent
offend Article 14 of the Constitution as all criminal court in accordance with the
offenders below the age of 18 years procedure prescribed. Contentions
irrespective of the degree/level of mental somewhat similar to what has been
40 maturity and irrespective of the gravity of 90 advanced by Dr. Swamy to explain the
the crime committed would be treated at degree of constitutional flexibility that the
par. Such a blanket treatment of all Act would enjoy has also been urged by
offenders below the age of 18 committing Dr. Hingorani who however goes a step
any offence, regardless of the seriousness forward to contend that the decision in
45 and depravity, is wholly impermissible 95 Salil Bali v. Union of India (2013) 4 SCC
under our constitutional scheme. The non- 705 will not be an inhibition for the Court
obstante provisions contained in Section to answer the question(s) raised as not only
1(4) of the Act as well as the bar imposed the issues arising in Salil Bali (supra) are
by Section 7 on the jurisdiction of the different but the said decision is founded
50 criminal court to try juvenile offenders 100 on an entirely different legal perspective.

208
 Shri Sidharth Luthra, learned Additional their international commitments. The
Solicitor General submits that what is incidence of crime by juveniles in those
contemplated by the Act is in furtherance countries is very high which is not so in
of the country's obligations arising from a India. It is submitted that, of late, a re-
5 series of international conventions to 55 thinking on the issue is discernible to
which India is a signatory. The Act is an demonstrate which reliance is placed on
expression of legislative wisdom to treat some recent pronouncements of the US
all persons below 18 as juveniles and to Supreme Court, details of which will be
have an alternate system of dealing with noticed hereinafter.
10 such juveniles who come into conflict with 60 (2) That the level of mental/intellectual
law. Shri Luthra has submitted that the maturity in any given case cannot be
constitutional validity of the Act has been determined with any degree of accuracy
upheld by a Coordinate Bench in Salil Bali and precision and the results vary from
(supra). Shri Luthra has also submitted that case to case and from individual to
15 psychological/mental, intellectual and 65 individual. A system which provides for an
emotional maturity of a person below 18 option to refer a juvenile to a regular court,
years cannot be objectively determined on therefore, ought not to be accepted as no
an individual or case to case basis and the objective basis for such reference exists.
fixation of the Minimum Age of Criminal At the very outset, two initial hurdles to
20 Responsibility (MACR) under the Act is a 70 the present adjudication, set up by the
policy decision taken to give effect to the Respondents, may be conveniently dealt
country's international commitments. In so with. The first is that the constitutional
far as the specific contentions advanced on validity of the Act has been upheld in Salil
behalf of the writ Petitioners in W.P. (Crl.) Bali (supra) and it is not necessary to
25 No. 204 of 2013 is concerned, Shri Luthra 75 revisit the said decision even if it be by
has submitted that the Act does not way of a reference to a larger Bench. The
provide a blanket immunity to juvenile second is with regard to the
offenders, as contended. What the Act recommendations of the Justice J.S. Verma
contemplates is a different procedure to Committee following which
30 deal with such offenders. If found guilty, 80 recommendations, the Criminal Law
they are subjected to a different scheme of Amendment Act, 2013 has been enacted
punishment. The learned Counsel by the legislature fundamentally altering
appearing on behalf of the juvenile Raju, the jurisprudential norms so far as offences
while supporting the contentions advanced against women/sexual offences are
35 by Shri Luthra, has further submitted that 85 concerned.
the United Nations Convention on the In Salil Bali (supra) the constitutional
Rights of the Child, 1990 read with the validity of the Act, particularly, Section
concluding Resolution of the Committee 2(k) and 2(l) thereof was under challenge,
on Child Rights (constituted under the UN inter alia, on the very same grounds as
40 Convention) of the year 2000 qua India 90 have now been advanced before us to
and the General Resolution of the year contend that the Act had to be read down.
2007 clearly contemplate the MACR as 18 In Salil Bali (supra) based its conclusion
years and mandates member States to act on the principle of judicial restraint that
accordingly. Learned Counsel on the must be exercised while examining
45 strength of the elaborate academic and 95 conscious decisions that emanate from
research work placed on record has tried to collective legislative wisdom like the age
persuade the Court to take the view that: of a juvenile...
(1) Countries like U.K. Canada and USA The next issue that would need a
have departed from the obligations under resolution at the threshold is the effect of
50 the UN Convention and are in breach of 100 the recommendations of the Justice J.S.

209
 Verma Committee constituted by the
Government of India by Notification dated
24th December, 2012 following the very
same incident of 16th December 2012 so
5 far as the age of a juvenile is concerned.
The terms of reference to the Justice J.S.
Verma Committee were indeed wide and it
is correct that the Committee did not
recommend reduction of the age of
10 juveniles by an amendment of the
provisions of the Act..
The UN Standard Minimum Rules for the
Administration of Juvenile Justice ("the
Beijing Rules") were adopted by the
15 General Assembly of the United Nations
in 1985. Rule 2.2(a) defines a juvenile as a
child or young person who, under the
respective legal system, may be dealt with
for an offence differently than an adult.
20 Rule 4.1 set out below mandates Member
States to refrain from fixing a minimum
age of criminal responsibility that is too
low, bearing in mind the facts of
emotional, mental and intellectual
25 maturity.
The Beijing Rules take into account
penological objectives in addition to
rehabilitation of the offender. In Rule 17.1,
the guiding principles of adjudicating
30 matters involving juveniles are enlisted:
(a) The reaction shall always be
proportional to not only the circumstances
and the gravity of the offence, but also to
the circumstances and needs of the
35 juvenile as well as to the needs of society;
(b) Restrictions on personal liberty of the
juvenile shall be imposed only after
careful consideration and shall be limited
to the possible minimum;
40 (c) Deprivation of personal liberty shall
not be imposed unless the juvenile is
adjudicated of a serious act involving
violence against another person or of
persistence in committing other serious
45 offences and unless there is no other
appropriate response;
(d) The well-being of the juvenile shall be
the guiding factor while considering his
case.
50 It is clear that the Beijing Rules do not
prohibit detention of a juvenile if he is
proved to have committed a violent,
serious offence, or to have repeatedly
committed such serious offences though
55 Rule 17.2 of the Beijing Rules prohibits
the imposition of capital punishment of
juveniles. Thus, the Rules do not advocate
leniency in dealing with such offenders but
only contemplate that detention be limited
60 to the most serious cases where no other
alternative is found appropriate after
careful consideration.
The Convention on the Rights of the
Child, 1990 ("CRC"), in Article 1, adopts a
65 chronological definition of a "child", viz.
less than 18 years old, unless majority
under national legislation is attained
earlier:
For the purposes of the present
70 Convention, a child means every human
being below the age of eighteen years
unless under the law applicable to the
child, majority is attained earlier.
Article 37(a) of the CRC prohibits the
75 imposition of capital punishment and life
imprisonment without possibility of
release on offenders below 18 years of
age. The CRC further obliges State Parties
to establish a minimum age below which
80 children shall be presumed not to have the
capacity to infringe the penal law (Article
40(3)(a)).
Rule 1.2 of the Havana Rules provide that
a juvenile should be deprived of his/her
85 liberty only as a measure of the last resort
limited to exceptional cases and for the
minimum necessary period. Even then,
detention should be in such a manner and
in conditions that respect the human rights
90 of juveniles (Rule 12).
Rule 11(a) of the Havana Rules, 1990
define a juvenile as every person under the
age of 18, and allow national laws to
determine a minimum age below which
95 such person will not be detained.
In January, 2000, the CRC Committee
considered the initial report of India
submitted on 19.03.1997 and adopted
certain "concluding observations" the
210
 relevant part of which are extracted as possible. The Committee recommends
hereinbelow: that the State party ensure regular, frequent
The Committee is concerned over the and independent monitoring of institutions
administration of juvenile justice in India for juvenile offenders.
5 and its incompatibility with Articles 37, 40 55 It is pursuant to the aforesaid concluding
and 39 of the Convention and other observations of the Committee made in the
relevant international standards. The year 2000 that the JJ Act was amended in
Committee is also concerned at the very the later part of that year by having a
young age of criminal responsibility-7 uniform age of 18 for both male and
10 years-and the possibility of trying boys 60 female juveniles.
between 16 and 18 years of age as adults. The views of the Committee in respect of
Noting that the death penalty is de facto other member States may be usefully taken
not applied to persons under 18, the note at this stage by extracting the
Committee is very concerned that de jure, recommendations in the nature of general
15 this possibility exists. The Committee is 65 comments in paras 36, 37 and 38 of the
further concerned at the overcrowded and Report:
unsanitary conditions of detention of 36. The Committee also wishes to draw the
children, including detention with adults; attention of States parties to the upper
lack of application and enforcement of age-limit for the application of the rules of
20 existing juvenile justice legislation; lack of 70 juvenile justice. These special rules-in
training for professionals, including the terms both of special procedural rules and
judiciary, lawyers and law enforcement of rules for diversion and special
officers, in relation to the Convention, measures-should apply, starting at the
other existing international standards and MACR set in the country, for all children
25 the 1986 Juvenile Justice Act; and the lack 75 who, at the time of their alleged
of measures and enforcement thereof to commission of an offence (or act
prosecute officials who violate these punishable under the criminal law), have
provisions. not yet reached the age of 18 years.
The Committee recommends that the State 37. The Committee wishes to remind States
30 party abolish by law the imposition of the 80 parties that they have recognized the right
death penalty on persons under 18. The of every child alleged as, accused of, or
Committee also recommends that the State recognized as having infringed the penal
party consider raising the age of criminal law to be treated in accordance with the
responsibility and ensure that persons provisions of Article 40 of CRC. This
35 under 18 years are not tried as adults. In 85 means that every person under the age of
accordance with the principle of non- 18 years at the time of the alleged
discrimination contained in Article 2 of the commission of an offence must be treated
Convention, the Committee recommends in accordance with the rules of juvenile
Article 29(h) of the 1986 Juvenile Justice justice.
40 Act be amended to ensure that boys under 90 38. The Committee, therefore, recommends
18 years are covered by the definition of that those States parties which limit the
juvenile, as girls already are. The applicability of their juvenile justice rules
Committee recommends that the 1986 to children under the age of 16 (or lower)
Juvenile Justice Act be fully enforced and years, or which allow by way of exception
45 that the judiciary and lawyers be trained 95 that 16 or 17-year-old children are treated
and made aware of it. The Committee as adult criminals, change their laws with
further recommends that measures be a view to achieving a non-discriminatory
taken to reduce overcrowding, to release full application of their juvenile justice
those who cannot be given a speedy trial rules to all persons under the age of 18
50 and to improve prison facilities as quickly 100 years. The Committee notes with

211
 appreciation that some States parties
allow for the application of the rules and
Regulations of juvenile justice to persons
aged 18 and older, usually till the age of
5 21, either as a general rule or by way of
exception.
Both sides have laboured to assist the
Court with elaborate and detailed scientific
10 and medical literature in support of their
respective stands. The scientific and
medical opinion on the issue is not at
variance and it cannot be. The difference
lies in the respective perceptions as we
15 will presently see. The works and opinions
placed goes to show that studies of
adolescent brain anatomy clearly indicate
that regions of the brain that regulate such
things as foresight, impulse control and
20 resistance to peer pressure are in a
developing stage upto the age of 18. These
are normative phenomenon that a teenager
cannot control and not a pathological
illness or defect. An article by Laurence
25 Steinberg & Laura H. Carnell titled
"Should the Science of Adolescent Brain
Development inform Public Policy" is
relied upon. On the basis of the above it is
contended that there is no answer to the
30 question when an adolescent brain
becomes an adult brain because the
structural and conventional changes do not
take place on a uniform time scale. It is
further argued that intellectual maturity of
35 an adolescent is different from emotional
or social maturity which makes an
adolescent mature for some decisions but
not for others, a position also highlighted
by the Act which pre-supposes the
40 capacity of a child under 18 to consent for
his adoption Under Section 41(5) of the
Act. On the said materials while the
Petitioners argue that the lack of
uniformity of mental growth upto the
45 relevant age i.e. 18 years would justify
individualized decisions rather than
treating adolescent as a class the opposite
view advanced is that between the lower
and the upper age, the age of 18 provides a
50 good mid point of focus which may result
in some amount of over-classification but
that would be inevitable in any situation
and a mid point reduces the chances of
over-classification to the minimum. These
55 are the varying perceptions alluded to
earlier.
It may be advantageous to now take note
of the Juvenile Justice System working in
other jurisdictions.
60 A-CANADA
In Canada, the Youth Criminal Justice
Act, 2002 provides for criminal justice to
young persons aged between 12 to 18
years. While a 'child' is a person aged less
65 than 12 years, a 'young person' is one aged
between 12 and 18 years. Section 13
establishes "youth justice courts" which
have exclusive jurisdiction to try offences
committed by a young person. The Act
70 makes special provisions where a young
person commits a "serious offence"
(indictable offence punishable with more
than 5 years' imprisonment) and "serious
violent offence" (first and second degree
75 murder, manslaughter, aggravated sexual
assault, attempted murder). Custody
sentences are reserved for violent and
serious crimes, but cannot exceed the
maximum punishment that can be awarded
80 to adults for the same offence (Section
38(2)(a)). One sentencing option is the
"Intensive Rehabilitative Custody and
Supervision Order", which is reserved for
serious violent offenders including for
85 aggravated sexual assault. When the
offender attains 18 years, the Court may
place him in an adult correctional centre if
this is in his best interest or in public
interest.Further, psychological assessment
90 may be ordered only where (i) the offender
has committed a serious violent crime, or
(ii) the Court suspects he is suffering from
a mental illness or disorder, or (iii) the
offender has a criminal history with
95 repeated findings of guilt. Thus, an
assessment Under Section 34 cannot be
ordered for determining whether the
offender lacks sufficient "maturity" to be
classified as a "juvenile/young person"
212
 (and thus qualify for the benefits of the
Act). This Act, like the JJ Act uses the
chronological test for determining its
beneficiaries. However, in cases of serious
5 and serious violent crimes, the offender
may be punished by the Youth Justice
Court with equivalent years of
imprisonment as in the case of an adult
(Sections 38 & 39).
10 principles applicable to adults are equally
B-UNITED KINGDOM
Children less than 10 years of age are
irrefutably considered as incapable of
committing an offence. Children between
15 10-18 years are capable of committing
offences, but are usually tried in the Youth
Court, unless they have committed serious
offences (such as rape or homicide) or
have been charged with adults (co-
20 defendants), in which case they are tried in
the Crown Court. When jointly charged
with adult co-Defendants, though the
charges must be framed in the Magistrate's
court with the other Defendants, the
25 juvenile should be sent to the Crown Court
for trial if there is a "real prospect" of him
being sentenced to over 2 years' custody
period.
30 C-UNITED STATES of AMERICA
The US has a relatively high rate of
juvenile delinquency. In 2011, the number
of juvenile delinquents was 129,456 out of
a population of 250 million. Although the
35 traditional age of majority is 18 years,
nearly all States permit persons less than
18 years to be tried as adults.
For example, in California, the majority
age is 18 years, but persons older than 14
40 years may be tried as adults if they commit
serious crimes (rape, robbery, murder etc.).
The state of New York pegs the age of
juvenility at 16 years, and permits the
prosecution of persons aged between 13-
45 16 years as adults in case of serious
crimes. In Florida, the prosecutor has
discretion to decide whether to try the
juvenile as such or as an adult, owing to
concurrent jurisdiction of the juvenile and
50 ordinary criminal courts.
There are three legal mechanisms that
permit the juvenile to be tried as an adult
in the States:
i. Judicial Waiver, ii. Prosecutorial
55 Discretion, iii. Statutory exclusion, iv.
Blended Sentencing
The trial procedure and sentencing
applicable in case a person under 18 years
60 is transferred to an adult criminal court.
Juveniles cannot, however, be sentenced to
death (Roper v. Simmons 543 US 551
(2005)) or imprisoned for life without
possibility of parole (Graham v. Florida
65 560 US 48 (2010)).
D-BRAZIL
The Statute of the Child and the
Adolescent, 1990, enacted in compliance
with the CRC, treats persons below 18
70 years (but above 12 years) as adolescents.
'Councils of Guardianship', municipal
tribunals comprising five locally elected
members, deal with cases involving
preadolescents (younger children).
75 Juvenile Courts deal with cases involving
older children. Confinement and
incarceration are reserved for older youths
up to the age of 21 years.
80 E-BANGLADESH
The minimum age of criminal
responsibility in Bangladesh is 9 years
(raised from 7 years in 2004). The
Children Act, 1974 defines a child and
85 youthful offender as one below 16 years of
age. The Act provides for the
establishment of Juvenile Courts with
exclusive jurisdiction to try youthful
offenders (Section 13, Children Act).
90 Ordinary criminal courts may act as
Juvenile Courts if the latter are not
established. Procedure under the Code of
Criminal Procedure, 1898 is followed.
Section 51 prohibits the award of death
95 sentence, imprisonment and transportation
to a youthful offender.
213
 F-AFGHANISTAN
The Juvenile Code sets the minimum age
of criminal responsibility at 12 years. For
juveniles aged between 12-16 years, 1/3rd
5 of the maximum punishment to adults can
be awarded. For juveniles aged between
16-18 years, 1/2 of the maximum
punishment to adults can be awarded.
10 G-BHUTAN
The minimum age of criminal
responsibility is 10 years. Section 213 of
the Civil and Code of Criminal Procedure
has certain provisions regulating the trial
15 of a juvenile offender. Persons below 18
years can be awarded half of the adult
sentence.
H-NEPAL
20 The minimum age of criminal
responsibility is 10 years. A child is a
person below 16 years. Youth between 16-
18 years are charged and tried as adults.
An FIR is necessary only if the juvenile
25 has (i) allegedly committed a serious
offence like rape or murder, or (ii) has
allegedly committed the offence with an
adult.
Investigation and Inquiry:
30 Criminal Justice System: Section 156 and
157, Code of Criminal Procedure deals
with the power and procedure of police to
investigate cognizable offences. The police
may examine witnesses and record their
35 statements. On completion of the
investigation, the police officer is required
to submit a Final Report to the Magistrate
Under Section 173(2).
JJ System: The system contemplates the
40 immediate production of the apprehended
juvenile before the JJ Board, with little
scope for police investigation. Before the
first hearing, the police is only required to
submit a report of the juvenile's social
45 background, the circumstances of
apprehension and the alleged offence to
the Board (Rule 11(11)). In cases of a non-
serious nature, or where apprehension of
the juvenile is not in the interests of the
50 child, the police are required to intimate
his parents/guardian that the details of his
alleged offence and his social background
have been submitted to the Board (Rule
11(9)).
55 Arrest
Criminal Justice System: Arrest of accused
persons is regulated under Chapter V of
the Code of Criminal Procedure. The
police are empowered to arrest a person
60 who has been accused of a cognizable
offence if the crime was committed in an
officer's presence or the police officer
possesses a reasonable suspicion that the
crime was committed by the accused.
65 Further, arrest may be necessary to prevent
such person from committing a further
crime; from causing disappearance or
tampering with evidence and for proper
investigation (Section 41). Persons
70 accused of a non-cognizable offence may
be arrested only with a warrant from a
Magistrate (Section 41(2)).
JJ System: The JJ Rules provide that a
juvenile in conflict with the law need not
75 be apprehended except in serious offences
entailing adult punishment of over 7 years
(Rule 11(7)). As soon as a juvenile in
conflict with the law is apprehended, the
police must inform the designated
80 Child/Juvenile Welfare Officer, the
parents/guardian of the juvenile, and the
concerned Probation Officer (for the
purpose of the social background report)
(Section 13 & Rule 11(1)). The juvenile so
85 apprehended is placed in the charge of the
Welfare Officer. It is the Welfare Officer's
duty to produce the juvenile before the
Board within 24 hours (Section 10 & Rule
11(2)). In no case can the police send the
90 juvenile to lock up or jail, or delay the
transfer of his charge to the Welfare
Officer (proviso to Section 10 & Rule
11(3)).
Bail
95 Criminal Justice System: Chapter XXXIII
of the Code of Criminal Procedure
provides for bails and bonds. Bail may be
granted in cases of bailable and non-
bailable offences in accordance with
214
 Section 436 and 437 of the Code of itself that the juvenile has not been
Criminal Procedure. Bail in non-bailable tortured by the police or any other person
offences may be refused if there are and to take steps if ill-treatment has
reasonable grounds for believing that the occurred. Proceedings must be conducted
5 person is guilty of an offence punishable 55 in the simplest manner and a child-friendly
with death or imprisonment for life, or if atmosphere must be maintained (R.
he has a criminal history (Section 437(1)). 13(2)(b)), and the juvenile must be given a
JJ System: A juvenile who is accused of a right to be heard (clause (c)). The inquiry
bailable or non-bailable offence "shall" be is not to be conducted in the spirit of
10 released on bail or placed under the care of 60 adversarial proceedings, a fact that the
a suitable person/institution. This is Board is expected to keep in mind even in
subject to three exceptions: (i) where his the examination of witnesses (R. 13(3)).
release would bring him into association Rule 13(4) provides that the Board must
with a known criminal, (ii) where his try to put the juvenile at ease while
15 release would expose him to moral, 65 examining him and recording his
physical or psychological danger, or (iii) statement; the Board must encourage him
where his release would defeat the ends of to speak without fear not only of the
justice. Even where bail is refused, the circumstances of the alleged offence but
juvenile is to be kept in an observation also his home and social surroundings.
20 home or a place of safety (and not jail). 70 Since the ultimate object of the Act is the
Trial and Adjudication rehabilitation of the juvenile, the Board is
The trial of an accused under the criminal not merely concerned with the allegations
justice system is governed by a well laid of the crime but also the underlying social
down procedure the essence of which is causes for the same in order to effectively
25 clarity of the charge brought against the 75 deal with such causes.
accused; the duty of the prosecution to The Board may dispense with the
prove the charge by reliable and legal attendance of the juvenile during the
evidence and the presumption of inquiry, if thought fit (Section 47). Before
innocence of the accused. Culpability is to the Board concludes on the juvenile's
30 be determined on the touchstone of proof 80 involvement, it must consider the social
beyond reasonable doubt but if convicted, investigation report prepared by the
punishment as provided for is required to Welfare Officer (R. 15(2)).
be inflicted with little or no exception. The The inquiry must not prolong beyond four
accused is entitled to seek an exoneration months unless the Board extends the
35 from the charge(s) levelled i.e. discharge 85 period for special reasons due to the
(amounting to an acquittal) mid course. circumstances of the case. In all non-
JJ System: Under Section 14, whenever a serious crimes, delay of more than 6
juvenile charged with an offence is months will terminate the trial (R. 13(7)).
brought before the JJ Board, the latter Sentencing: The Board is empowered to
40 must conduct an 'inquiry' under the JJ Act. 90 pass one of the seven dispositional orders
A juvenile cannot be tried with an adult Under Section 15 of the JJ Act:
(Section 18). advice/admonition, group counseling,
Determination of the age of the juvenile is community service, payment of fine,
required to be made on the basis of release on probation of good conduct and
45 documentary evidence (such as birth 95 placing the juvenile under the care of
certificate, matriculation certificate, or parent or guardian or a suitable institution,
Medical Board examination). or sent to a Special home for 3 years or
The Board is expected to conclude the less. Where a juvenile commits a serious
inquiry as soon as possible under Rule 13. offence, the Board must report the matter
50 Further, the Board is required to satisfy 100 to the State Govt. who may keep the

215
 juvenile in a place of Safety for not more unconstitutionality. The argument,
than 3 years. A juvenile cannot be therefore, is really the other side of the
sentenced to death or life imprisonment. same coin which has been cast by Dr.
Post-trial Processes Hingorani who is more forthright in his
5 JJ System: No disqualification attaches to 55 challenge to the validity of the Act on the
a juvenile who is found to have committed twin grounds already noticed, namely, that
an offence. The records of his case are the Act would result in over-classification
removed after the expiry of period of if all juveniles, irrespective of the level of
appeal or a reasonable period. mental maturity, are to be grouped in one
10 Section 40 of the JJ Act provides that the 60 class and on the further ground that the
rehabilitation and social reintegration of Act replaces the criminal justice system in
the juvenile begins during his stay in a the country and therefore derogates a basic
children's home or special home. "After- feature of the Constitution. If the
care organizations" recognized by the arguments are to be understood and
15 State Govt. conduct programmes for 65 examined from the aforesaid perspective,
taking care of juveniles who have left the conclusion is obvious-what the Court
special homes to enable them to lead is required to consider, apart from the
honest, industrious and useful lives. incidental and side issues which would not
The Act, as manifestly clear from the be of much significance, is whether the
20 Statement of Objects and Reasons, has 70 Act would survive the test of
been enacted to give full and complete constitutionality if the same is not to be
effect to the country's international read and understood in the manner urged.
obligations arising from India being a of course, if the constitutionality of the Act
signatory to the three separate conventions is to become suspect, the further question,
25 delineated hereinbefore, namely, the 75 as we have already indicated, is what
Beijing Rules, the UN Convention and the should be the course of action that would
Havana Rules. Notwithstanding the be open to this Coordinate Bench in view
avowed object of the Act and other such of the decision in Salil Bali (supra).
enactments to further the country's In the present case there is no difficulty in
30 international commitments, all of such 80 understanding the clear and unambiguous
laws must necessarily have to conform to meaning of the different provisions of the
the requirements of a valid legislation Act. ..All persons below the age of 18 are
judged in the context of the relevant put in one class/group by the Act to
constitutional provisions and the judicial provide a separate scheme of investigation,
35 verdicts rendered from time to time. Also, 85 trial and punishment for offences
that the Act is a beneficial piece of committed by them. A class of persons is
legislation and must therefore receive its sought to be created who are treated
due interpretation as a legislation differently. This is being done to
belonging to the said category has been further/effectuate the views of the
40 laid down by a Constitution Bench of this 90 international community which India has
Court in Pratap Singh v. State of shared by being a signatory to the several
Jharkhand and Anr. (2005) 3 SCC 551. In conventions and treaties already referred
other words, the Act must be interpreted to.
and understood to advance the cause of the Classification or categorization need not
45 legislation and to confer the benefits of the 95 be the outcome of a mathematical or
provisions thereof to the category of arithmetical precision in the similarities of
persons for whom the legislation has been the persons included in a class and there
made. may be differences amongst the members
If the Act is not to be read down, as urged, included within a particular class. So long
50 it will stand invalidated on grounds of 100 as the broad features of the categorization

216
 are identifiable and distinguishable and the
categorization made is reasonably
connected with the object targeted, Article
14 will not forbid such a course of action.
5 If the inclusion of all under 18 into a class
called 'juveniles' is understood in the
above manner, differences inter se and
within the under 18 category may exist.
….Murthy Match Works and Ors. v. The
10 Asstt. Collector of Central Excise and Anr.
(1974) 4 SCC 428, Roop Chand Adlakha
and Ors. v. Delhi Development Authority
and Ors. 1989 Supp (1) SCC 116, …
If the legislature has adopted the age of 18
15 as the dividing line between juveniles and
adults and such a decision is
constitutionally permissible the enquiry by
the Courts must come to an end. India has
accepted the above position and legislative
20 wisdom has led to the enactment of the JJ
Act in its present form. If the Act has
treated all under 18 as a separate category
for the purposes of differential treatment
so far as the commission of offences are
25 concerned, we do not see how the
contentions advanced by the Petitioners to
the contrary on the strength of the thinking
and practices in other jurisdictions can
have any relevance.
30 The only difference is that a different
scheme for trial and punishment is
introduced by the Act in place of the
regular provisions under the Code of
Criminal Procedure for trial of offenders
35 and the punishments under the Indian
Penal Code
Before parting, we would like to observe
that elaborate statistics have been laid
before us to show the extent of serious
40 crimes committed by juveniles and the
increase in the rate of such crimes, of late.
We refuse to be tempted to enter into the
said arena which is primarily for the
legislature to consider. We would be
45 justified to recall the observations of
Justice Krishna Iyer in Murthy March
Works (supra) as the present issues seem
to be adequately taken care of by the same:
13.Right at the threshold we must warn
50 ourselves of the limitations of judicial
power in this jurisdiction. Mr Justice Stone
of the Supreme Court of the United States
has delineated these limitations in United
States v. Butler MANU/USSC/0159/1936 :
55 (1936) 297 US 1 thus:
14. In short, unconstitutionality and not
unwisdom of a legislation is the narrow
area of judicial review. In the present case
unconstitutionality is alleged as springing
60 from lugging together two dissimilar
categories of match manufacturers into
one compartment for like treatment.
15. It is true that a State may classify
persons and objects for the purpose of
65 legislation and pass laws for the purpose
of obtaining revenue or other objects.
Every differentiation is not a
discrimination. But classification can be
sustained only if it is founded on pertinent
70 and real differences as distinguished from
irrelevant and artificial ones. The
constitutional standard by which the
sufficiency of the differentia which form a
valid basis for classification may be
75 measured, has been repeatedly stated by
the Courts. If it rests on a difference which
bears a fair and just relation to the object
for which it is proposed, it is
constitutional. To put it differently, the
80 means must have nexus with the ends…..A
power to classify being extremely broad
and based on diverse considerations of
executive pragmatism, the Judicature
cannot rush in where even the Legislature
85 warily treads. All these operational
restraints on judicial power must weigh
more emphatically where the subject is
taxation.
90 Dismissed
217