Law Web: Whether the accused is entitled to be released on default bail if chargesheet is submitted in language which he does not understand?

Under Section 207, it is the obligation of the learned

Judicial Magistrate to supply a copy of the report and other

documents as provided in Section 207 to the accused. In a

case triable by the Court of Sessions, Section 208 provides for

the learned Magistrate to provide copies of the statements and

documents to the accused including the statements and

confessions recorded under Section 164 of CrPC. When a

copy of the report and the documents are supplied to the

accused under Section 207 and/or Section 208, an

opportunity is available for the accused to contend that he

does not understand the language in which the final report or

the statements or documents are written. But he must raise

this objection at the earliest. In such a case, if the accused is

appearing in person and wants to defend himself without

opting for legal aid, perhaps there may be a requirement of

supplying a translated version of the charge sheet and

documents or the relevant part thereof concerning the said

accused to him. It is, however, subject to the accused

satisfying the Court that he is unable to understand the

language in which the charge sheet is submitted. When the

accused is represented by an advocate who fully understands

the language of the final report or charge sheet, there will not

be any requirement of furnishing translations to the accused

as the advocate can explain the contents of the charge sheet

to the accused. If both the accused and his advocate are not

conversant with the language in which the charge sheet has

been filed, then the question of providing translation may

arise. The reason is that the accused must get a fair

opportunity to defend himself. He must know and understand

the material against him in the charge sheet. That is the

essence of Article 21 of the Constitution of India. With the

availability of various software and Artificial Intelligence tools

for making translations, providing translations will not be

that difficult now. In the cases mentioned aforesaid, the

Courts can always direct the prosecution to provide a

translated version of the charge sheet. But we must hasten to

add that a charge sheet filed within the period provided either

under Section 167 of CrPC or any other relevant statute in a

language other than the language of the Court or the

language which the accused does not understand, is not

illegal and no one can claim a default bail on that ground.

{Para 19}

2023INSC770

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2592 OF 2023

Central Bureau of Investigation Vs Narottam Dhakad & Anr.

Author: ABHAY S. OKA, J.

Dated: August 25, 2023.

1. Leave granted.

FACTUAL ASPECTS

2. Under Section 272 of the Code of Criminal Procedure,

1973 (for short ‘CrPC’), the State Government has the power

to determine what shall be, for the purposes of CrPC, the

language of each Court within a particular State other than

the High Court. As provided in Section 6 of CrPC, there are

various Courts in a State. The said Courts are the Courts of

the Session, Judicial Magistrates of the First Class,

Metropolitan Magistrates, Judicial Magistrates of the Second

Class, and Executive Magistrates.

3. In these two appeals, we are dealing with charge sheets

filed by the appellant Central

Bureau of Investigation, in

relation to offences arising out of the VYAPAM Scam in the

State of Madhya Pradesh. Charge sheets have been filed for

various offences under Sections 419, 420, 468, 467 and 471

of IPC and under Sections 3 and 4 of the Madhya Pradesh

Examinations Act, 1937. The first respondent in Criminal

Appeal arising out of SLP (Crl.) No. 5525 of 2018 filed an

application before the learned Judicial Magistrate seeking a

direction to supply a Hindi translation of the charge sheet

filed by the appellant in English language. The contention of

the first respondent accused was that he was unable to

understand the charge sheet filed in English language. The

learned Judicial Magistrate held that the first respondent was

an educated person, having knowledge of English. Learned

Judge pointed out that the offence related to fraud in the

examination. The allegation is that after the first respondent

received admit card, some other person took the examination

by impersonating him. The learned Magistrate observed that

the vakalatnama filed by the first respondent was in English

and the first respondent has also signed in English. It was

further held that the Advocate representing the first

respondent had sound knowledge of the English language.

Therefore, the learned Magistrate proceeded to reject the

prayer made by the first respondent. The order of the learned

Magistrate has been confirmed by the Sessions Court in

revision. However, the High Court interfered by holding that

Hindi was the only language of the Criminal Courts in the

State and therefore, the first respondent was entitled to seek

a translation of the charge sheet into the language of the

Court.

4. The first respondent in Criminal Appeal, arising out of

SLP (Crl.) No. 10680 of 2022, is also an accused in the same

case. He also made a similar application before the learned

Magistrate which was rejected. The first respondent

challenged the said order before the High Court. A Division

Bench of the High Court by the impugned judgment held that

when a charge sheet was filed in the language unknown to

the accused, he was entitled to translation of the charge sheet

in the language which he understands.

5. The appellant the

Central Bureau of Investigation has

challenged both the impugned orders.

SUBMISSIONS

6. The submission of the appellant in both cases is that

the accused were highly educated and had knowledge of the

English language. Therefore, there is no prejudice to the

accused if the charge sheet was in English language. It was

also pointed out by the learned counsel appearing for the

appellant that the charge sheets in VYAPAM Scam cases are

very bulky and translation of the charge sheets into Hindi is a

very time consuming and costly process.

7. The submission of the learned counsel appearing for the

accused is that in the exercise of powers under Section 272 of

CrPC, the State Government has declared Hindi as the only

language of the Criminal Courts in the State. Their

submission is that the language Hindi is for the purposes of

the Code and therefore, charge sheets filed under Section 173

of CrPC ought to be filed in the language of the Court.

Therefore, both the accused supported the view taken by the

High Court. The learned counsel appearing for the accused

also submitted that in a given case if the accused is not

conversant with the language in which the charge sheet has

been filed, he will not be able to defend himself properly as he

will not be in a position to understand the statements

recorded by the police and other documents collected during

investigation.

OUR VIEW

8. The Government of Madhya Pradesh in exercise of

power under Section 272 of CrPC issued a notification dated

28th March 1974, declared Hindi to be the language of each

Court in the State except the High Court. If we consider the

scheme of CrPC, it regulates not only the procedure before the

Criminal Courts but also the procedure to be followed by the

police and other investigating agencies. Chapter V deals with

the arrest of persons. Chapter VI deals with processes to be

issued for compelling the appearance of the accused before

the Court. Chapter VII deals with processes to be issued to

compel the production of things before the Court. Chapter

VIII contains provisions regarding security for keeping the

peace and for good behaviour. The powers under the said

Chapter are to be exercised by the Courts under the CrPC or

an Executive Magistrate, as the case may be. Chapter X

contains the steps to be taken for the maintenance of public

order and tranquillity. Chapter IX contains Section 125 which

confers powers on the Courts of the Judicial Magistrate, First

Class to order payment of maintenance to wives, children and

parents. Chapter XI deals with the preventive action of the

police. Chapter XII contains elaborate provisions regarding

the registration of First Information Reports, and the

investigation of offences in cognizable or noncognizable

cases.

9. Section 173 forms part of Chapter XII which contains

provisions regarding a police report which is popularly known

as a charge sheet. We are, therefore, reproducing Section 173

of CrPC which reads thus:

“173. Report of police officer on

completion of investigation.(

1) Every

investigation under this Chapter shall be

completed without unnecessary delay.

(1A) The investigation in relation to an

offence under sections 376, 376A, 376AB,

SLP (Crl.) No.5525 of 2018 etc. Page 5 of 19

376B, 376C, 376D, 376DA, 376DB or 376E

of the Indian Penal Code (45 of 1860) shall

be completed within two months from the

date on which the information was recorded

by the officer in charge of the police station.

(2) (i) As soon as it is completed, the officer

in charge of the police station shall forward

to a Magistrate empowered to take

cognizance of the offence on a police report,

a report in the form prescribed by the State

Government, stating(

a) the names of the parties;

(b) the nature of the information;

be acquainted with the circumstances of the

case;

(d) whether any offence appears to have

been committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond

and, if so, whether with or without sureties;

(g) whether he has been forwarded in

custody under section 170.

(h) whether the report of medical

examination of the woman has been

attached where investigation relates to an

offence under sections 376, 376A, 376AB,

376B, 376C, 376D, 376DA, 376DB] or

section 376E of the Indian Penal Code (45 of

1860).

(ii) The officer shall also communicate, in

such manner as may be prescribed by the

State Government, the action taken by him,

to the person, if any, by whom the

information relating to the commission of

the offence was first given.

(3) Where a superior officer of police has

been appointed under section 158, the

report shall, in any case in which the State

Government by general or special order so

directs, be submitted through that officer,

and he may, pending the orders of the

Magistrate, direct the officer in charge of the

police station to make further investigation.

(4) Whenever it appears from a report

forwarded under this section that the

accused has been released on his bond, the

Magistrate shall make such order for the

discharge of such bond or otherwise as he

thinks fit.

(5) When such report is in respect of a

case to which section 170 applies, the

police officer shall forward to the

Magistrate along with the report(

a) all documents or relevant extracts

thereof on which the prosecution

proposes to rely other than those already

sent to the Magistrate during

investigation;

(b) the statements recorded under section

161 of all the persons whom the

prosecution proposes to examine as its

witnesses.

(6) If the police officer is of opinion that any

part of any such statement is not relevant to

the subjectmatter

of the proceedings or that

its disclosure to the accused is not essential

in the interests of justice and is inexpedient

SLP (Crl.) No.5525 of 2018 etc. Page 7 of 19

in the public interest, he shall indicate that

part of the statement and append a note

requesting the Magistrate to exclude that

part from the copies to be granted to the

accused and stating his reasons for making

such request.

(7) Where the police officer investigating the

case finds it convenient so to do, he may

furnish to the accused copies of all or any of

the documents referred to in subsection

(5).

(8) Nothing in this section shall be deemed

to preclude further investigation in respect

of an offence after a report under subsection

(2) has been forwarded to the

Magistrate and, where upon such

investigation, the officer in 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 subsections

(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 subsection

(2).”

(emphasis supplied)

10. As can be seen from subsection

(2) of Section 173, after

completion of the investigation, the officer in charge of the

police station is under an obligation to submit a report to the

learned Magistrate in the form prescribed by the State

Government, giving particulars as mentioned in subsection

(2). Subsection

(5) is applicable in a case governing Section

170. It applies when it appears to the officer in charge of the

police station that there is sufficient evidence or reasonable

ground justifying the forwarding of the accused to the learned

Magistrate. In such a case, along with the report, the officer

in charge of the police station is bound to forward copies of

the statements recorded under Section 161 of all the persons

whom the prosecution proposes to examine as its witnesses.

It also enjoins the officer in charge of the police station to

forward all the documents or relevant extracts thereof on

which the prosecution proposes to rely upon other than those

already sent to the Magistrate during the investigation. Subsection

(6) of Section 173 confers power on the learned

Magistrate to exclude certain parts of the material produced

along with the charge sheet while supplying copies thereof to

the accused.

11. Section 173 will have to be read with Section 207 which

mandates that after cognizance is taken of the offence by the

learned Magistrate on a case instituted on a police report, it is

the obligation of the learned Magistrate to furnish free of cost,

without any delay, copies of the police report, first information

report, statements recorded under subsection

(3) of Section

161 of CrPC except the portion in respect of which there is an

order passed by the learned Magistrate by invoking powers

under subsection

(6) of Section 173, confessions and

statements recorded under Section 164 and copies of the

documents or relevant extracts forwarded along with the

police report in accordance with subsection

(5) of Section

173. When the statements of the witnesses or documents

covered by subsection (5) of Section 173 are very bulky, the

learned Magistrate has the discretion to allow the accused

and his advocate to inspect the said documents instead of

providing copies thereof. It is pertinent to note that there is no

provision either in Chapter XII or Chapter XVI of CrPC which

makes it obligatory to file charge sheets/reports in the

language of the Court.

12. Interestingly, the provision regarding the language of

Courts in the form of Section 272 finds a place in Chapter

XXIII having the heading “Evidence in inquiries and Trials”.

The provision is incorporated under the subheading

“A.—

Mode of taking and recording evidence”. Section 272 reads

thus:

“272. Language of Courts.—The State

Government may determine what shall be, for

purposes of this Code, the language of each

Court within the State other than the High

Court.”

Thus, the power of the State Government is to determine for

the purposes of CrPC what shall be the language of the Courts

within the State other than the High Court. The power under

Section 272 is not a power to decide which language shall be

used by the investigating agencies or the police for the

purposes of maintaining the record of the investigation. At

the highest, for that purpose, the provisions regarding the law

governing the Official Language of the State may apply subject

to the provisions contained in such enactment. In a given

case, while prescribing a form as required by Subsection

(2) of Section 173, the State Government may provide that the

charge sheet must be filed in the official language of the State.

Therefore, Section 272 deals with only the language of the

Courts under CrPC.

13. It is interesting to note that wherever legislature

intended, specific provisions have been made incorporating

the requirement using the language of the Court. Some of

these provisions also deal with situations when the accused is

unable to understand the language of the Court

14. We are giving a summary of the relevant provisions of

CrPC which have some bearing on the issue of the language of

the Court:

a. Subsection

(6) of Section 211 provides that the

charge shall be written in the language of the Court.

However, Section 215 provides that no error in the

charge shall be regarded at any stage of the case as

material unless the accused was in fact misled due

to error or omission and it has occasioned a failure

of justice. Therefore, in a given case, even if the

charge is not framed in the language of the Court,

the omission to frame the charge in the language of

the Court shall not be material unless it is shown

that the accused was misled and it resulted in

failure of justice.

b. Section 228 forms part of Chapter XVIII, which deals

with trial before a Court of Sessions. Subsection

(2)

of Section 228 mandates that the Court must read

over and explain the charge to the accused. It

follows that if the accused does not understand the

language in which the charge is framed, the Court

will have to explain the charge to him in the

language which he understands.

c. Section 240 which forms part of Chapter XVIII

dealing with the trial of warrant cases by Magistrates

provides that the charge shall be framed in writing

and the learned Magistrate shall read over and

explain the charge to the accused. Though the

Section does not make it mandatory, normally, the

charge will be framed in the language of the Court

determined in accordance with Section 272 of CrPC.

Therefore, if the accused is not conversant with the

language in which the charge is framed, it is the

duty of the Magistrate to explain the charge to the

accused in a language which he understands.

d. If we compare provisions of Chapters XVIII, XIX, XX,

and XXI which deal with sessions triable cases,

warrant triable cases, summons triable cases, and

summary trials, either there is a requirement of

explaining the charge to the accused, or there is a

requirement of stating the particulars of the offence

SLP (Crl.) No.5525 of 2018 etc. Page 12 of 19

to the accused. These requirements can be fulfilled

only by explaining to the accused in the language

which he understands.

e. Only in the case of summary trials under Chapter

XXI, there is a specific provision under Section 265

that the record of the case shall be in the language

of the Court.

f. Section 277 (b) permits a witness to give evidence in

any other language which is not the language of the

Court. It lays down the procedure for recording

such evidence.

g. There is a salutatory provision in the form of Section

279 under Chapter XXIII dealing with evidence in

inquiries and trials. Section 279 reads thus:

“279. Interpretation of evidence to

accused or his pleader.—(1) Whenever

any evidence is given in a language not

understood by the accused, and he is

present in Court in person, it shall be

interpreted to him in open Court in a

language understood by him.

(2) If he appears by pleader and the

evidence is given in a language other

than the language of the Court, and not

understood by the pleader, it shall be

interpreted to such pleader in that

language.

(3) When documents are put for the

purpose of formal proof, it shall be in

the discretion of the Court to interpret

as much thereof as appears necessary.”

Thus, where evidence is recorded in the language of the Court

which is not understood by the accused or his pleader, there

is an obligation on the part of the Court to explain the

evidence to the accused or his lawyer, as the case may be.

h. Section 281 provides that if the examination of the

accused made by the Court is reduced into writing

in a language which the accused does not

understand, the statement is required to be

interpreted to him in a language which he

understands and after such interpretation is made,

the accused has the liberty to explain and add to his

answers.

i. Under Section 354, it is provided that judgment in

every trial of a Criminal Court must be written in

the language of the Court. Either in Section 353 or

354, there is no provision which requires the Court

to interpret the judgment to the accused even if the

accused does not understand the language of the

Court.

15. The conclusion which can be drawn from the provisions

of CrPC and in particular the provisions referred to above is

that wherever the legislature intended, there is a specific

provision incorporated requiring the Court to mandatorily use

the language of the Court in the proceedings. There is no

such requirement laid down in respect of the report/charge

sheet under Section 173 of CrPC.

16. There are two provisions in CrPC which deal with the

effect of error, omission, or irregularity in the proceedings of

the trial of a criminal case. The first is Section 464 which

deals with the effect of omission to frame, or absence of, or

error in, charge. It lays down that only on the ground of such

omission, absence, or error, the ultimate finding, sentence or

order will not be invalid unless a failure of justice has in fact

been occasioned thereby. Section 465 incorporates the same

test of the failure of justice while dealing with any error,

omission, or irregularity in the proceedings. While deciding

whether there is a failure of justice occasioned due to error,

omission, or irregularity in the trial, the Court is required to

consider the fact whether the objection could and should have

been raised at an earlier stage in the proceedings. There is a

specific provision to that effect under subsection (2) of Section 465.

17. Therefore, in a given case, if something which CrPC

specifically requires to be done in the language of the Court is

done in any other language, per se, the proceedings will not

be vitiated unless it is established that the omission has

resulted in failure of justice. While deciding the issue of

whether there is a failure of justice, the Court will have to

consider whether the objection was raised at the earliest

available opportunity.

18. Now, coming to the issue of the language of the final

report/charge sheet under Section 173, there is no specific

provision in CrPC which requires the investigating

agency/officer to file it in the language of the Court

determined in accordance with Section 272 of CrPC. Even if

such a requirement is read into Section 173, per se, the

proceedings will not be vitiated if the report is not in the

language of the Court. The test of failure of justice will have to

be applied in such a case as laid down in Section 465 of

CrPC.

19. Under Section 207, it is the obligation of the learned