Friday, 18 March 2016

Whether Confession and recovery of incriminating article becomes inadmissible on ground that it was obtained illegally?

Criminal – Criminal procedure code – Sections 160, 167, 397 – Indian Penal Code, 1860 – Sections
302, 363 – Evidence Act, 1872 – Confession and recovery of incriminating article – Admissibility of –
Murder – Grant of police remand to accused – Subsequent grant of judicial custody – Revision
petition there against – Allowed by High Court holding that confession and alleged recovery at
instance of accused had no evidentiary value – Validity – Concurring views expressed by judges -
Admissibility or otherwise of a piece of evidence has to be judged having regard to provisions of
Evidence Act – Evidence act or code of criminal procedure or for that matter any other law in India
does not exclude relevant evidence on ground that it was obtained under an illegal search and seizure
– Direction given by High Court that confession and alleged recovery had no evidentiary value was
clearly illegal and liable to be set aside

Equivalent Citation: AIR2004SC2282, 2004(2)ALD(Cri)95, 2004CriLJ2515, 2004(3)CTC138, (2004)3GLR2174, 2004(5)SCALE330,
(2004)5SCC729
IN THE SUPREME COURT OF INDIA
Criminal Appeal Nos. 575-576 of 2004 (Arising out of Special Leave Petition (Crl.) Nos. 3143-3144 of 2002)
Decided On: 05.05.2004
Appellants: State Rep. by Inspector of Police and Ors.
Vs.
Respondent: N.M.T. Joy Immaculate
Hon'ble Judges: S. Rajendra Babu, C.J., AR. Lakshmanan and G.P. Mathur, JJ.


2. These appeals have been preferred by the State of Tamil Nadu against the judgment and order dated
11.4.2002 of a learned Single Judge of the High Court of Madras by which the criminal revision petition
2preferred by the respondent N.M.T. Joy Immaculate was allowed and the revision was disposed of with
certain directions.
3. A written FIR was lodged at P.S. P1-Puliyanthope on 9.10.2001 by one Jaffar Sait alleging that his brother
Rizwan Sait was missing since around 9.00 a.m. on 7.10.2001 and on the basis of same a case was
registered. On 15.10.2001 Haroon Sait (brother of Rizwan Sait) filed a Habeas Corpus Petition in the High
Court of Madras being H.C.P. No. 1458 of 2001, wherein besides the State and Inspector of Police, P.S. P1-
Puliyanthope, R. Sathish, Miss Joy Immaculate and Miss Nithya were arrayed as respondents No. 3 to 5 and
a prayer was made that a writ of habeas corpus be issued directing the respondents to produce his brother
Rizwan Sait, who is illegally detained by respondents No. 3 to 5 and to set him at liberty. It was averred in the
writ petition that Rizwan Sait lends money on interest to various businessmen including the shopping
business complex of Spencers Plaza. Chennai. Respondents No. 3 to 5 and their friends, namely, Vijay and
Ranjit had taken money from Rizwan Sait. Miss Joy Immaculate had conducted a fashion show at Music
Academy and in that connection she had borrowed more than Rs. 50,000/- and her sister Miss Nithya, who
was running a business in the name and style of Fashion World at Spencers Plaza, had also borrowed a sum
of Rs. 65,000/. Joy Immaculate and her sister Nithya did not repay the interest and when Rizwan Sait went to
the latter's shop, R. Sathish undertook to clear off their dues. At about 9.00 a.m. on 7.10.2001 R. Sathish
came to the writ petitioner's house and thereafter his brother Rizwan Sait left along with him in a Maruti car.
While leaving, he had said that he was going to Chittur (A.P.) and would return back in the night. However, as
Rizwan Sait did not come back till the morning of 8.10.2001, they started looking for him and went to the shop
of Nithya and asked her to give the address of R. Sathish, which she refused to do. However, in the morning
of 9.10.2001, R. Sathish himself came to their house and said that their programme of going to Chittur was
cancelled and accordingly Rizwan Sait had returned back to his house on the morning of 7.10.2001 itself. A
photocopy of a cheque for a sum of Rs. 1,50,000/-dated 2.9.2001 issued by Miss Nithya was found in the
cupboard of Rizwan Sait. In the Habeas Corpus Petition Haroon Sait raised a suspicion that respondents No.
3 to 5 have done some foul play with his brother who had advanced money to them.
4. An unidentified dead body was found at Kanagavallipuram and on the report of Village Administrative
Officer a case was registered with the concerned police station. After autopsy in the Government Hospital,
Tiruvellore, the dead body was buried. One Deva @ Dev Raj was arrested by Inspector of P1-Puliyanthope
Police Station. He confessed to the police about the commission of crime and showed the place where
Rizwan Sail was murdered. It was thereafter ascertained that the unidentified dead body found on 10.10.2001
at Tiruvellore Taluka was that of Rizwan Sait. Thereafter, the case registered on 9.10.2001 at P.S. P1-
Puliyanthope was altered to Section 363, 302 IPC. Dev Raj was remanded to judicial custody on 23.10.2001.
Joy Immaculate surrendered in the Court of Judicial Magistrate, Alandhur, Chennai on 24.10.2001 and was
remanded to judicial custody and R. Sathish surrendered before XXIII Metropolitan Magistrate, Saidpet,
Chennai on 25.10.2001. The Investigating Officer made an application before the concerned Magistrate on
31.10.2001 for giving Sathish on police remand. This application was allowed and the learned Metropolitan
Magistrate vide his order dated 1.11.2001 granted police remand of accused Sathish for 3 days i.e. from
1.11.2001 to 3.11.2001. It is alleged that he made some sort of a confession to the police and on the basis of
the statement made by him, some incriminating articles were recovered. Thereafter, the Investigating Officer
moved an application before the concerned Magistrate for grant of police remand of Joy Immaculate, which
was opposed by her. The learned Vth Metropolitan Magistrate, Egmore, Chennai passed a detailed order on
6.11.2001, whereunder she was given in police custody for one day and was to be produced in court by 4.00
p.m. on 7.11.2001. It was directed that she would be detained in All Women Police Station and would be
interrogated at the office of the Asst. Commissioner of Police, in the presence of the women Inspector of
Police. It was further directed that during the period of police custody, the accused should not be harassed
physically or psychologically and should be produced before the Court, in me same condition.
5. According to the prosecution, Joy Immaculate made some confessional statements before the Investigating
Officer and on her pointing out the wrist watch and shirt of the deceased and also the nylon rope used in the
commission of murder were recovered. Thereafter, on 7.11.2001 she was produced before the Vth
Metropolitan Magistrate who remanded her to judicial custody. Two weeks thereafter, Joy Immaculate filed a
criminal revision petition under Section 397 Cr.P.C. being Crl. R.C. No. 1569 of 2001, wherein it was prayed
that the order dated 6.11.2001 passed by Vth Metropolitan Magistrate granting police custody be set aside as
the same is against the principles laid down in Section 167 Cr.P.C and that the Court may pass such other
and further orders as it may deem fit and proper. In the revision petition, accused Joy Immaculate filed an
affidavit making serious allegations against the police personnel to the effect that she was interrogated and
3detained at the police station on 18
th and then from 20
th
to 24
th October, 2001 and also referred to certain
telegrams which were sent to the Chief Justice of the High Court in this connection. Affidavits in reply were
filed by the concerned police personnel. The High Court by the impugned order, which is the subject matter of
challenge in the present appeals disposed of the revision petition by issuing several directions and directions
No. (a), (b), (c), (d), (g) and (h) are being reproduced below:
(a) The order granting police custody in respect of the petitioner passed by the learned Magistrate is ex facie
illegal. Consequently, it is held that the said order is non-est and has to be erased from the records.
(b) In view of the fact that the order granting custody has become non-est, the consequent so-called
confession and alleged recovery has no evidentiary value.
(c) The investigation conducted by P1 and P4 Police with reference to the petitioner is not bona fide and false
records have been created to implicate the petitioner, thereby caused serious injustice to the petitioner.
(d) The petitioner had been wrongfully and illegally detained in P4 Police Station for four days and she was
harassed and tortured by the Police personnel.
(g) The Commissioner of Police is also directed to take immediate departmental action against the P1
Inspector of Police, P4 Inspector of Police and other Police Personnel who were responsible for the illegal
detention and other obscene acts committed on the petitioner at P4 Police Station.
(h) The Home Secretary to the Government of Tamil Nadu is directed to pay a compensation of Rs.
1,00,000/- to the petitioner, the victim for her illegal detention in the P4 Police Station by the police personnel
who committed the acts of molestation, obscene violation and teasing on the petitioner, within one month from
the date of receipt of this order.
The prayer made by the accused for transfer of investigation to C.B.C.I.D. or C.B.I. was declined and the
Commissioner of Police was directed to constitute a special team of investigating agency headed by an
Assistant Commissioner of Police to continue the investigation of the case. A direction was also issued to the
State Government to issue circulars to all the police stations that woman accused/witness should not be
brought to the police station and they must be inquired only by the woman police at the place where they
reside.
6. We have heard Shri Altaf Ahmad, Additional Solicitor General appearing for the Appellant State of Tamil
Nadu and also learned counsel appearing for respondent (accused Joy Immaculate) and have examined the
record. In our opinion, the High Court seems to have been carried away by sentiments and has displayed a
complete ignorance of the relevant provisions of law, especially that of Code of Criminal Procedure and the
Evidence Act.
7. The learned Vth Metropolitan Magistrate by his order dated 6.11.2001 had granted police remand for one
day of the accused Joy Immaculate in exercise of powers conferred by Section 167 Cr.P.C. She was given in
police custody on the same day and was produced before the learned Metropolitan Magistrate on 7.11.2001
and thereafter she was sent to judicial custody. The order had exhausted itself as the police custody was
actually given. However, the accused challenged the aforesaid order by filing a criminal revision petition under
Section 397 Cr.P.C. after two weeks on 21.11.2001.
8. The first question which needs examination is whether the revision petition was maintainable. Sub-section
(2) of Section 397, Cr.P.C. lays down that the power of revision conferred by Sub-section (1) shall not be
exercised in relation to any interlocutory order passed in any appeal, enquiry, trial or other proceedings. The
expression "interlocutory order" has not been defined in the Code. It will, therefore, be useful to refer to its
meaning as given in some of the dictionaries:
The New Lexicon - Pronounced and arising during legal
Webster's Dictionary procedure, not final
4Webster's Third New - Not final or definitive; made or done
International Dictionary during the progress of an action
Wharton's Law Lexicon - An interlocutory order or judgment is one
made or given during the progress of
action, but which does not finally
dispose of the rights of the parties e.g.,
an order appointing a receiver or
granting an injunction, and a motion
for such an order is termed an
interlocutory motion
Black's Law Dictionary - Provisional; temporary; not final.
Something intervening between the
commencement and the end of a suit which
decides some point or matter, but is not a
final decision of the whole controversy.
9. Ordinarily and generally, the expression 'interlocutory order' has been understood and taken to mean as a
converse of the term 'final order'. In volume 26 of Halsbury's Laws of England (Fourth Edition) it has been
stated as under in para 504:
"......a judgment or order may be final for one purpose and interlocutory for another, or final as to part and
interlocutory as to part. It is impossible to lay down principles about what is final and what is interlocutory. It is
better to look at the nature of the application and not at the nature of the order eventually made. In general,
orders in the nature of summary judgment where there has been no trial of the issues are interlocutory."
In para 505 it is said that in general a judgment or order which determines the principal matter in question is
termed "final".
In para 506 it is stated as under:
"An order which docs not deal with the final rights of the parties, but either (1) is made before judgment and
gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made after
judgment, and merely directs how the declarations of right already given in the final judgment are to be
worked out is termed "interlocutory". An interlocutory order, even though not conclusive of the main dispute,
may be conclusive as to the subordinate matter with which it deals."
10. In S. Kuppuswami Rao v. King MANU/FE/0001/1947, the following principle laid down in Salaman v.
Warner (1891) 1 QB 734 was quoted with approval:
"If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that
for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally
dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not
final, but interlocutory."
The test laid down therein was that if the objection of the accused succeeded, the proceeding could have
ended but not vice versa, The order can be said to be a final order only if, in either event, the action will be
determined.
11. However, in Madhu Limaye v. State of Maharashtra , MANU/SC/0103/1977 : 1978CriLJ165 , such
an interpretation and the universal application of the principle that what is not a final order must be an
interlocutory order was not accepted as this will render the revisional power conferred by Section 397(1)
nugatory. After taking into consideration the scheme of the Code of Criminal Procedure and the object of
conferring a power of revision on the Court of Sessions and the High Court, it was observed as follows:
5"In such a situation, it appears to us that the real intention of the Legislature was not to equate the expression
"interlocutory order" as invariably be converse of the words 'final order'. There may be an order passed during
the course of a proceeding which may not be final in the sense noticed in Kuppuswami's case AIR 1949 FC 1
(supra) but, yet it may not be an interlocutory order - pure or simple. Some kinds of order may fall in between
the two. By a rule of harmonious construction, we think that the bar in Sub-section (2) of Section 397 is not
meant to be attracted to such kinds of intermediate order."
12. Same question has recently been considered in K.K. Patel v. State of Gujarat MANU/SC/0386/2000
: 2000CriLJ4592 . In this case a criminal complaint was filed against the Superintendent of Police and Deputy
Superintendent of Police alleging commission of several offences under the Indian Penal Code and also
under Section 147G of the Bombay Police Act. The Metropolitan Magistrate took cognizance of the offence
and issued process to the accused, who on appearance filed a petition for discharge on the ground that no
sanction as contemplated by Section 197 Cr.P.C. had been obtained. The Metropolitan Magistrate dismissed
the petition against which a revision was filed before the Sessions Judge, who allowed the same on the
objection raised by the accused based upon Section 197 Cr.P.C. and also Section 161(1) Bombay Police
Act, which creates a bar of limitation of one year. The revision preferred by the complainant against the order
of discharge was allowed by the High Court on the ground that the order passed by the Metropolitan
Magistrate rejecting the prayer of the accused to discharge them was an interlocutory order. In the appeal
preferred by the accused, this Court after referring to Amar Nath v. State of Haryana
MANU/SC/0068/1977 : 1977CriLJ1891 , Madhu Limaye v. State of Maharashtra
MANU/SC/0103/1977 : 1978CriLJ165 and V.C. Shukla v. State MANU/SC/0284/1979 : 1980CriLJ690
held that in deciding whether an order challenged is an interlocutory or not, as for Section 397(2) of the
Code, the sole test is not whether such order was passed during the interim stage. The feasible test is
whether by upholding the objections raised by a party, it would result in culminating the proceedings. If so,
any order passed on such objections would not be merely interlocutory in nature as envisaged in Section
397(2) of the Code. It was further held that as in the facts of the case, if the objections raised by accused
were upheld, the entire prosecution proceedings would have been terminated, the order was not an
interlocutory order and consequently it was revisable.
13. Section 167 Cr.P.C. empowers a Judicial Magistrate to authorise the detention of an accused in the
custody of police. Section 209 Cr.P.C. confers power upon a Magistrate to remand an accused to custody
until the case has been committed to the Court of Sessions and also until the conclusion of the trial. Section
309 Cr.P.C. confers power upon a Court to remand all accused to custody after taking cognizance of an
offence or during commencement of trial when it finds it necessary to adjourn the enquiry or trial. The order of
remand has no bearing on the proceedings of the trial itself nor it can have any effect on the ultimate decision
of the case. If an order of remand is found to be illegal, it cannot result in acquittal of the accused or in
termination of proceedings. A remand order cannot affect the progress of the trial or its decision in any
manner. Therefore, applying the test laid down in Madhu Limaye's case (supra), it cannot be categorised
even as an "intermediate order". The order is, therefore, a pure and simple interlocutory order and in view of
the bar created by Sub-section (2) of Section 397 Cr.P.C., a revision against the said order is not
maintainable. The High Court, therefore, erred in entertaining the revision against the order dated 6.11.2001
of the Metropolitan Magistrate granting police custody of the accused Joy Immaculate for one day.
14. The High Court after holding that the order granting police custody is ex-facie illegal has further held that
the so-called confession and alleged recovery has no evidentiary value. It has also been held that the
investigation conducted by P-1 and P-4 Police with reference to the accused is not bona fide and false
records have been created to implicate the accused. The question then arises whether the High Court was
right in making the aforesaid observations, even if it is assumed that the order dated 6.11.2001 granting
police custody was illegal (though we have held above that the aforesaid order being a purely interlocutory
order, no revision lay against the same and the High Court committed manifest error of law in entertaining the
revision and setting aside the said order). The admissibility or otherwise of a piece of evidence has to be
judged having regard to the provisions of the Evidence Act. The Evidence Act or the Code of Criminal
Procedure or for that matter any other law in India does not exclude relevant evidence on the ground that it
was obtained under an illegal search and seizure. Challenge to a search and seizure made under the
Criminal Procedure Code on the ground of violation of fundamental rights under Article 20(3) of the
Constitution was examined in M.P. Sharma v. Satish Chander MANU/SC/0018/1954 :
1978(2)ELT287(SC) by a Bench of 8 Judges of this Court. The challenge was repelled and it was held as
under:
6"A power of search and seizure is in any system of jurisprudence an over-riding power of the State for the
protection of social security and that power is necessarily regulated by law. 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 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 statutory provisions for searches."
15. The law of evidence in our country is modeled on the rules of evidence which prevailed in English Law. In
Kuruma v. The Queen 1955 AC 197 an accused was found in unlawful possession of some ammunition in a
search conducted by two police officers who were not authorised under the law to carry out the search. The
question was whether the evidence with regard to the unlawful possession of ammunition could be excluded
on the ground that the evidence had been obtained on an unlawful search. The Privy Council stated the
principle as under :
"The test to be applied, both in civil and in criminal cases, in considering whether evidence is admissible is
whether it is relevant to the matters in issue. If it is, it is admissible and the Court is not concerned with how it
was obtained".
This question has been examined threadbare by a Constitution Bench in Pooran Mal v. Director of
Inspection MANU/SC/0055/1973 : [1974]93ITR505(SC) and the principle enunciated therein is as under:
"If the Evidence Act 1872 permits relevancy as the only test of admissibility of evidence, and, secondly, that
Act or any other similar law in force does not exclude relevant evidence on the ground that it was obtained
under an illegal search or seizure, it will be wrong to invoke the supposed spirit of our Constitution for
excluding such evidence. Nor is it open to us to strain the language of the Constitution, because some
American Judges of the American Supreme Court have spelt out certain constitutional protections from the
provisions of the American Constitution. So, neither by invoking the spirit of our Constitution nor by a strained
construction of any of the fundamental rights cane we spell out the exclusion of evidence obtained on an
illegal search.
So far as India is concerned its law of evidence is modeled on the rules of evidence which prevailed in
English Law, and Courts in India and in England have consistently refused to exclude relevant evidence
merely on the ground that it is obtained by illegal search or seizure. Where the test of admissibility of
evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or
other law evidence obtained as a result of illegal search or seizure is not liable to be shut out."
This being the law, the direction (b) given by the High Court that the confession and alleged recovery has no
evidentiary value is clearly illegal and has to be set aside. The effect of the confession and also the recovery
of the incriminating article at the pointing out of the accused has to be examined strictly in accordance with
the provisions of the Evidence Act.
16. The High Court has also recorded a finding that the investigation conducted by P-1 and P-4 Police with
regard to accused Joy Immaculate is not bona fide and false records have been created to implicate her
causing her serious injustice and further that she was detained in the police station for four days and was
harassed and tortured by the police personnel. It is needless to mention that the High Court was hearing a
criminal revision petition filed under Section 397 Cr.P.C. against an order passed by a Metropolitan
Magistrate granting police custody of the accused. The scope of the revision, even if it is assumed to be
maintainable, was a limited one, viz., whether the order granting police remand was legally correct or not
having regard to the material placed before the learned Magistrate. The High Court at that stage could not
have gone into the merits of the prosecution case as if hearing an appeal against an order of conviction or
acquittal as the trial of the accused is yet to begin. The only material available before the High Court was the
affidavit filed by the accused, copies of telegrams and the reply affidavits filed by the concerned police
officials. The affidavit of the accused has been accepted as a gospel truth and very disparaging and strong
remarks have been made against the investigating officers and the investigation done by them. Though we do
not want to express any opinion, one way or the other, but at the same time one should not lose sight of the
fact that a person who has been accused by the prosecution for having entered into a conspiracy to commit
murder, can go to any extent in making wild allegations against the concerned police authorities. The High
7Court lost sight of the fact that much before the accused Joy Immaculate claims to have been interrogated in
the police station (20
th October, 2001 and subsequently) and the police came into picture, the brother of the
deceased had filed a Habeas Corpus Petition in the High Court on 15.10.2001, wherein she and her sister
Miss Nithya had been arrayed as respondents and serious allegations had been made against them and in
para 12 it was specifically alleged that these two sisters along with Sathish had illegally detained Rizwan Sait
(deceased). The alleged ill treatment meted out to her subsequently by the police cannot have the effect of
wiping out the crime committed earlier viz. entering into a conspiracy and thereafter murder of Rizwan Sait on
9
th October. The High Court seems to have been very much swayed by the fart that she was a student and
was studying in M.A. and like all normal students must be totally devoted to studies. But the statements of
witnesses under Section 161 Cr.P.C. show that the mother and sister Nithya of accused Joy Immaculate
were also carrying on business, that both the sisters borrowed money from Rizwan Sait and that the interest
amount had not been timely paid due to which some altercation took place on 4
th October when Rizwan Sait
used some filthy language against her that if by a particular date the amount was not paid she should come
and sleep with him. However, these are all factual aspects of the case which have to be examined by the trial
court at the appropriate stage after parties have adduced evidence.
17. Chapter XVIII of the Code of Criminal Procedure contains detailed and exhaustive provisions for the trial
of an accused before the Court of Sessions. It provides for framing of charge (Section 228), taking of
evidence as may be produced in support of the prosecution (Section 231) and an opportunity to the accused
to enter upon his defence and to adduce evidence in support thereof (Section 233). Section 313 Cr.P.C.
enjoins that circumstances appearing in evidence against the accused be put to him to enable him to explain
the same. The accused Joy Immaculate would get full and complete opportunity to defend herself in the trial.
It is for the trial Court to weigh the evidence adduced by the prosecution and then record a finding on its basis
whether the investigation has been fair or not or whether any records have been fabricated. If any party feels
aggrieved by the findings recorded and ultimate order passed by the learned Sessions Judge deciding the
case it will have a right of appeal before the High Court. There is absolutely no occasion for the High Court to
record any finding regarding the conduct of the investigation or the records on which the prosecution places
reliance, in a revision petition preferred against an order granting police remand and that too solely on the
basis of the affidavits filed by the rival parties. The High Court has virtually scuttled the trial even before it has
commenced and that too by a process wholly unknown to law.
18. The High Court has also awarded Rs. 1 lakh as compensation to the accused on the ground that she was
illegally detained in the police station and the police personnel committed acts of molestation, obscene
violation etc. It is noteworthy that after investigation, police has submitted charge sheet against accused Joy
Immaculate. Her application for bail was rejected by the learned Sessions Judge and thereafter by the High
Court on 18.1.2002 prior to the decision of the revision. There is absolutely no justification for awarding
compensation to a person who is facing prosecution for a serious offence like murder even before the trial has
commenced. This direction, therefore, deserves to be set aside.
19. In view of the discussion made, the appeals are allowed and the impugned judgment and order of the
High Court dated 11.4.2002 is set aside. If the amount of compensation of Rs. 1 lakh has already been paid
to the accused Joy Immaculate, she is directed to refund the same within two months, failing which it may be
recovered from her as arrears of land revenue.
20. It is made clear that any observation made in this order is only for the limited purpose of deciding the
present appeals and shall not be construed as an expression of opinion on the merits of the case. The
learned Sessions Judge trying the case shall decide the same strictly on the basis of the evidence adduced
by the parties and in accordance with law without being influenced in any manner with any observation made
in this order or in that of the High Court.
JUDGMENT
AR. Lakshmanan, J.
21. I have had the privilege of perusing the judgment proposed by my learned brother Hon'ble Mr. Justice
G.P. Mathur. I respectfully agree with the opinion expressed by him. However, I would like to add the
following few lines.
822. Section 160 of the Code of Criminal Procedure deals with police officer's power to require attendance of
witnesses. This Section aims at securing the attendance of persons who would supply the necessary
information in respect of the commission of an offence and would be examined as witnesses in the inquiry or
trial therefore. This Section applies only to the cases of persons who appear to be acquainted with the
circumstances of the case, i.e. the witnesses or possible witnesses only. An order under this Section cannot
be made requiring the attendance of an accused person with a view to his answering the charge made
against him. The intention of the legislature seems to have been only to provide a facility for obtaining
evidence and not for procuring the attendance of the accused, who may be arrested at any time, if necessary.
In other words, this Section has reference to the persons to be examined as witnesses in the trial or inquiry to
be held after the completion of the investigation. As an accused cannot be examined as a witness either for or
against himself, he cannot be included in the class of persons referred to in the Section. But the police officers
are fully authorised to require the personal attendance of the suspects during the investigation.
23. In the instant case, the High Court, by an impugned order has given a direction to the State Government
to issue circulars to all the police stations instructing the police officials that the woman accused/witness
should not be summoned or required to attend at any police station under Section 160 Cr.P.C. but they must
be enquired only by women police or in the presence of a women police, at the places where they reside. The
High Court has issued a further direction to the Government to ensure that this instruction is strictly followed
by the police in future.
24. In our opinion, the High Court has committed a serious error in giving such a direction contrary to the
statutory provisions under Section 160 of the Cr.P.C. which is applicable only to the witnesses and not the
accused. The High Court has also committed a grave error in giving a finding as to the confession and
recovery of a nylon rope alleged to have been used in the commission of murder, thereby stifling/foreclosing
the investigation into an offence of murder even before a final report in the case as contemplated under
Section 173(2) of the Cr.P.C. is filed.
25. The High Court, in the present case, while dealing with the revision has not only set aside the order
granting police custody, but has held that the consequent confession and the alleged recovery have no
evidentiary value in the case. In other words, what has got to be decided in a full-fledged trial, the High Court
merely on the pleadings of the parties has given a finding that the order granting police custody and the
consequent confession and the alleged recovery had no evidentiary value whatsoever in the case. The
learned single Judge has also given a finding that records were created to implicate the respondent-Joy
Immaculate in the case. Needless to state that any further investigation in the case permitted by the learned
Judge would be an exercise in futility in the context of such finding which could be given only during the
course of a full-fledged trial. The High Court, while disposing of the criminal revision, has given several
findings/directions in para 40 of the judgment/order. In our opinion, the learned Judge has miserably erred in
allowing the criminal revision petition against the order of the lower Court in criminal M.P. No. 5171/2001, as
the order passed by the lower Court was acted upon, i.e., one day police custody was granted, the accused
was taken into custody and surrendered back, and thus the petition to set aside that order has become
infructuous. Further, the learned Judge has erred in directing the State Government to issue a circular to all
the police stations instructing the police officials that the woman accused/witness should not be brought to the
police station and that they must be enquired only by women police or in the presence of women police at the
places where they reside. The learned Judge has failed to note that the aforementioned findings is contrary to
the statutory provisions contained in Section 160 of the Cr.P.C. In fact, the learned Judge has erred in
expanding the scope of Section 160 Cr.P.C. to the accused as well, which might lead to hardship to an
investigating agency. If the directions of the learned single Judge is accepted, no purposeful investigation into
any serious offence involving women accused could be conducted successfully.
26. Above all, the learned Judge has committed a grave error in awarding a compensation of Rs. 1 lakh on
the ground that the police personnel committed acts of obscene violation, teasing the respondent herein. The
learned Judge has relied upon only on the basis of the affidavit filed in the case for coming to the conclusion
and also on the basis of the assumption that the respondent was not involved in the incident which will
foreclose the further enquiry ordered by the learned Judge in the matter. There is no justification for awarding
compensation to a person who is facing prosecution for a serious offence like murder even before the trial has
started.
927. The learned Judge has also directed to take immediate departmental action against P-1 Inspector of
Police and P-4 Inspector of Police and other Police Personnel who were responsible for the detention and
other alleged acts committed on the respondent at P-4 police station. This direction, in our opinion, is not
warranted in view of the fact of our allowing the criminal appeal and setting aside the judgment of the learned
single Judge. The said direction issued by the learned Judge is set aside.
28. We, therefore, set aside the order in the criminal revision to prevent abuse of process of court or
otherwise to secure the ends of justice. It is a principle of cardinal importance in the administration of justice
that the proper freedom and independence of Judges and Magistrates must be maintained and they must be
allowed to perform their functions freely and fearlessly and without undue interference by anybody. At the
same time, it is equally necessary that in expressing their opinions, Judges and Magistrates must be guided
by considerations of justice fair play and restraint. It is not infrequent that sweeping generalization defeat the
very purpose for which they are made. It has been recognised that judicial pronouncements must be judicial
in nature, and should not normally depart from sobriety, moderation and reserve, as observed by this Court in
The State of Uttar Pradesh v. Mohd. Naim MANU/SC/0062/1963 : [1964]2SCR363 . It is also very apt to
quote para 13 of the judgment in A.M. Mathur vs. Pramod Kumar Gupta MANU/SC/0305/1990 :
[1990]2SCR110 which reads thus:
"Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the
effectiveness of the army. The duty of restraint, this humility of function should be a constant theme of our
Judges. This quality in decision making is as much necessary for Judges to command respect as to protect
the independence of the judiciary. Judicial restraint in this regard might better be called judicial respect; that
is, respect by the judiciary. Respect to those who come before the Court as well to other coordinate branches
of the State, the Executive and Legislature. There must be mutual respect. When these qualities fail or when
litigants and public believe that the judge has failed in these qualities, it will be neither good for the judge nor
for the judicial process."
29. This Court, in a number of other decisions, has also observed that the Courts should not make
unjustifiable observations and directions beyond the scope and ambit of the lis pending before it and that such
a direction and observation issued will only hamper the free-flow of justice and cause lot of inconvenience to
the litigants who come before the Court for redressal of their genuine grievances.
30. It is also apt to quote hereinbelow the observations made by this Court in Kashi Nath Roy v. State of
Bihar MANU/SC/0866/1996 : 1996CriLJ2469 wherein this Court held that granting of bail on the ground of
an infirmity in evidence in the criminal trial was not a glaring mistake or impropriety so as to attract adverse
remarks and suggestion for initiation of action against the Judge-Subordinate from the High Court Judge.
While stating the proper course to be adopted in such a case, this Court held as follows:
"The courts exercising bail jurisdiction normally do and should refrain from indulging in elaborate reasoning in
their orders in justification of grant or non-grant of bail. For, in that manner, the principle of "presumption of
innocence of an accused" gets jeopardized; and the structural principle of "not guilty till proved guilty" gets
destroyed, even though all sane elements have always understood that such views are tentative and not final,
so as to affect the merit of the matter. Here, the appellant has been caught and exposed to a certain adverse
comment and action solely because in reasoning he had disclosed his mind while granting bail. This may
have been avoidable on his part, but in terms not such a glaring mistake or impropriety so as to visit the
remarks that the High Court has chosen to pass on him as well as to initiate action against him, as proposed.
Whenever any such intolerable error is detected by or pointed out to a superior court, it is functionally required
to correct that error and may, here and there, in an appropriate case, and in a manner befitting, maintaining
the dignity of the court and independence of judiciary, convey its message in its judgment to the officer
concerned through a process of reasoning, essentially persuasive, reasonable, mellow but clear, and resultorienting,
but rarely as a rebuke. The premise that a Judge committed a mistake or an error beyond the limits
of tolerance, is no ground to inflict condemnation on the Judge-Subordinate, unless there existed something
else and for exceptional grounds."
31. I respectfully agree with all other directions and the observations made by brother G.P. Mathur, J. in
allowing the criminal appeal and setting aside the impugned judgment of the High Court dated 11.04.2002.
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