Further, the observation that there is no provision for granting exemption from personal appearance prior to obtaining bail, is not correct, as the power to grant exemption from personal appearance under the Code.{ Section 205 of the Code. Also see, Section 317 of the Code} should not be read in a restrictive manner as applicable only after the accused has been granted bail. This Court in Maneka Sanjay Gandhi and Another v. Rani Jethmalani (1979) 4 SCC 167. held that the power to grant exemption from personal appearance should be exercised liberally, when facts and circumstances require such exemption. See also, Puneet Dalmia v. Central Bureau of Investigation, Hyderabad, (2020) 12 SCC 695. Section 205 states that the Magistrate, exercising his discretion, may dispense
with the personal attendance of the accused while issuing summons, and allow them to appear through their pleader. While provisions of the Code are considered to be exhaustive, cases arise where the Code is silent and the court has to make such order as the ends of justice require. In such cases, the criminal court must act on the principle, that every procedure which is just and fair, is understood as permissible, till it is shown to be expressly or impliedly prohibited by law. See, Popular Muthiah v. State Represented by Inspector of Police (2006) 7 SCC 296 and earlier judgment of the Calcutta High Court in Rahim Sheikh (1923) 50 Cal 872, 875.{Para 47}
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2024
SHARIF AHMED AND ANOTHER Vs STATE OF UTTAR PRADESH AND ANOTHER
Author: SANJIV KHANNA, J.
Dated: MAY 01, 2024.
Leave granted in the above matters.
2. The concerns which have arisen during the course of hearing the present
appeals are of particular significance for meeting the ends of criminal justice,
and relate to the nature of chargesheets filed in some jurisdictions by the
state/police. For the sake of convenience, we would divide the judgment into
two parts. The first part relates to the legal issue, that is, the contents of the
chargesheet in terms of Section 173(2) of the Code of Criminal Procedure,
19731. The second part deals with the factual aspects of each of the cases,
and our decision.
PART I
3. The issue in the first part relates to chargesheets being filed without stating
sufficient details of the facts constituting the offense or putting the relevant
evidence on record. In some states, the chargesheets merely carry a
reproduction of the details mentioned by the complainant in the First
Information Report2, and then proceed to state whether an offence is made
out, or not made out, without any elucidation on the evidence and material
relied upon. On this issue, the recent judgment of this Court in Dablu Kujur v.
State of Jharkhand3 aptly crystallises the legal position in the following words:
“17. Ergo, having regard to the provisions contained in
Section 173 it is hereby directed that the Report of police
officer on the completion of investigation shall contain the
following:—
(i) A report in the form prescribed by the State
Government stating-
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to 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 Penal Code, 1860”
1 “Code”, for short.
2 “FIR”, for short.
3 2024 SCC Online SC 269.
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 3 of 38
(ii) If upon the completion of investigation, there is no
sufficient evidence or reasonable ground of suspicion
to justify the forwarding of the accused to a
Magistrate, the Police officer in charge shall clearly
state in the Report about the compliance of
Section 169 Cr. P.C.
(iii) When the report in respect of a case to which Section
170 applies, the police officer shall forward to the
Magistrate along with the report, all the documents or
relevant extracts thereof on which the prosecution
proposes to rely other than those already sent to the
Magistrate during investigation; and the statements
recorded under Section 161 of all the persons whom
the prosecution proposes to examine as its
witnesses.
(iv) In case of further investigation, the Police officer in
charge shall forward to the Magistrate a further report
or reports regarding such evidence in the form
prescribed and shall also comply with the details
mentioned in the above sub para (i) to (iii).”
4. The decision in Dablu Kujur (supra) refers to Section 157 of the Code which
inter alia states that, if on information received or otherwise, an officer of the
police station has reason to suspect commission of an offence which he is
empowered under Section 156 to investigate, he shall forthwith send a report
of the same to the Magistrate empowered to take cognisance of the offence.
Further, he shall proceed in person or depute any of his subordinate officers to
proceed to the spot to investigate the facts and circumstances of the case, and
if necessary, to take measures for discovery and arrest the offender. Such
report is in the nature of a preliminary report. As per Section 169 of the Code,
if it appears to the officer in-charge of the police station that there is not
sufficient evidence or reasonable ground of suspicion to justify forwarding the
accused to the Magistrate, then the officer shall release the person if he is in
custody on his executing a bond, with or without sureties, with a direction to
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 4 of 38
such person to appear if and when so required, before the Magistrate
empowered to take cognisance of the offence from the police report.4
5. Section 170 of the Code deals with the cases where it appears to the officer
that there is sufficient evidence or reasonable ground to proceed. In such an
event he is required to submit a police report or chargesheet under Section
173(2) of the Code. Elucidating on Section 173(2) of the Code in Dablu Kujur
(supra), this Court observed:
“12. We are more concerned with Section 173(2) as we have
found that the investigating officers while submitting the
chargesheet/Police Report do not comply with the
requirements of the said provision. Though it is true that the
form of the report to be submitted under Section 173(2) has
to be prescribed by the State Government and each State
Government has its own Police Manual to be followed by the
police officers while discharging their duty, the mandatory
requirements required to be complied with by such officers
in the Police Report/Chargesheet are laid down in Section
173, more particularly sub-section (2) thereof.
13. It may be noted that though there are various reports
required to be submitted by the police in charge of the police
station before, during and after the investigation as
contemplated in Chapter XII of Cr. P.C., it is only the report
forwarded by the police officer to the Magistrate under subsection
(2) of Section 173 Cr. P.C. that can form the basis
for the competent court for taking cognizance thereupon. A
chargesheet is nothing but a final report of the police officer
under Section 173(2) of Cr. P.C. It is an opinion or intimation
of the investigating officer to the concerned court that on the
material collected during the course of investigation, an
offence appears to have been committed by the particular
person or persons, or that no offence appears to have been
committed.
4 We clarify and respectfully agree with the view expressed by this Court in Siddharth v. State of Uttar
Pradesh and Another, (2022) 1 SCC 676, which has interpreted Section 170 of the Code. The word
‘custody’ used in the said Section does not contemplate either police or judicial custody, for otherwise
the Section would lead to unpalatable and incongruous consequences. It is observed that in normal
and ordinary course, the police should avoid arresting a person and sending him to jail, if it is possible
for the police to complete the investigation without his arrest and if every kind of cooperation is provided
by the accused to the investigating officer in completing the investigation. The word ‘custody’ in Section
170 has to be interpreted liberally and merely connotes presentation of the accused by the investigating
officer. This is because personally liberty is an important aspect of the constitutional mandate.
Existence of the power of arrest, and justification for exercise thereof are two different aspects. Section
170 of the Code does not impose an obligation on the officer in-charge to arrest each and every
accused before or at the time of filing of the chargesheet.
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 5 of 38
xx xx xx
15. The issues with regard to the compliance of
Section 173(2) Cr. P.C., may also arise, when the
investigating officer submits Police Report only qua some of
the persons-accused named in the FIR, keeping open the
investigation qua the other persons-accused, or when all the
documents as required under Section 173(5) are not
submitted. In such a situation, the question that is often
posed before the court is whether such a Police Report
could be said to have been submitted in compliance with
sub-section (2) of Section 173 Cr. P.C. In this regard, it may
be noted that in Satya Narain Musadi v. State of Bihar, this
Court has observed that statutory requirement of the report
under Section 173(2) would be complied with if various
details prescribed therein are included in the report. The
report is complete if it is accompanied with all the documents
and statements of witnesses as required by Section
175(5)…”
6. We would like to elaborate on certain aspects, as submission of the
chargesheet is for taking cognisance and summoning of the accused by the
Magistrate, which stages are of considerable importance and significance.
7. Section 173 of the Code reads:
“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, 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;
(c) the names of the persons who appear to be acquainted
with the circumstances of the case;
(d) whether any offence appears to have been committed
and, if so, by whom;
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 6 of 38
(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 subject-matter of the
proceedings or that its disclosure to the accused is not
essential in the interests of justice and is inexpedient 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 sub-section (5).
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 7 of 38
(8) 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 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 (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)”.
8. Sub-section (2) to Section 173 makes a considered departure from sub-
Section (1) to Section 173 of the Code of Criminal Procedure, 18985. Subsection
(1)(a) to Section 173 of the 1898 Code had stipulated that as soon as
the investigation is completed, the officer in-charge of the police station shall
forward to the Magistrate, a report in the form prescribed by the local
government, sending forth the names of the parties, nature of the information
and the names of the people who appear to be acquainted with the
circumstances of the case and state whether the accused person has been
forwarded in custody or released on a bond.
9. We have referred to Section 173 of the 1898 Code, in view of reliance placed
during the course of hearing on the decision of this Court in Tara Singh v.
State6 and R.K. Dalmia etc. v. Delhi Administration7, which refer and relate
to the 1898 Code.
10. In Tara Singh’s case (supra), the question which had arisen was whether the
challan preferred by the police was complete so as to enable the court to take
cognisance within the meaning of Section 190(1)(b) of the 1898 Code. It was
held that a challan submitted in the said case was complete except for
5 “1898 Code”, for short.
6 AIR 1951 SC 441.
7 AIR 1962 SC 1821.
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 8 of 38
submission of the report of the Imperial Serologist and drawing of the sketch
map of the occurrence. In this context, reference was made to Section 173(1)
of the 1898 Code and that the report/challan should set forth, viz. the names
of the parties, nature of the information and names of persons who appear to
be acquainted with the circumstances of the case. The cognisance, it was held,
was proper.
11. In R.K. Dalmia (supra), again a reference was made to Section 173(1) of the
1898 Code and that the chargesheet must contain name of the parties, nature
of the information and the names of persons who appear to be acquainted with
the circumstances of the case. These observations were made in the context
of the submission made on behalf of the accused that there was a change in
the stand of the prosecution, which contention was rejected on several
grounds, as mentioned in paragraphs 325 and 326 of the footnoted citation.
12. It is, therefore, apparent from the language of the legislation, that under the
Code, that is, the Code of Criminal Procedure, 1973, the requirement and the
manner of providing details in the chargesheet, stand verified.
13. The question of the required details being complete must be understood in a
way which gives effect to the true intent of the chargesheet under Section
173(2) of the Code. The requirement of “further evidence” or a “supplementary
chargesheet” as referred to under Section 173(8) of the Code, is to make
additions to a complete chargesheet,8 and not to make up or reparate for a
chargesheet which does not fulfil requirements of Section 173(2) of the Code.
The chargesheet is complete when it refers to material and evidence sufficient
8 State Through Central Bureau of Investigation v. Hemendhra Reddy & Anr., 2023 SCC OnLine SC
515.
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 9 of 38
to take cognizance and for the trial. The nature and standard of evidence to be
elucidated in a chargesheet should prima facie show that an offence is
established if the material and evidence is proven. The chargesheet is
complete where a case is not exclusively dependent on further evidence. The
trial can proceed on the basis of evidence and material placed on record with
the chargesheet. This standard is not overly technical or fool-proof, but a
pragmatic balance to protect the innocent from harassment due to delay as
well as prolonged incarceration, and yet not curtail the right of the prosecution
to forward further evidence in support of the charges9.
14. In the context of the present issue, it would be apt to refer to Section 190 and
Section 204 of the Code, along with the provisions relating to contents of
charge, namely, Sections 211 to 213 and Section 218 of the Code, which read
as under:
“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 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;
(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.
(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.
xx xx xx
204. Issue of process.—(1) If in the opinion of a Magistrate
taking cognizance of an offence there is sufficient ground for
proceeding, and the case appears to be—
9 See also, para 21 below on the power of the police to investigate under Section 173(8) of the Code.
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 10 of 38
(a) a summons-case, he shall issue his summons for
the attendance of the accused, or
(b) a warrant-case, he may issue a warrant, or, if he
thinks fit, a summons, for causing the accused to
be brought or to appear at a certain time before
such Magistrate or (if he has no jurisdiction
himself) some other Magistrate having
jurisdiction.
(2) No summons or warrant shall be issued against the
accused under sub-section (1) until a list of the prosecution
witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in
writing, every summons or warrant issued under sub-section
(1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any processfees
or other fees are payable, no process shall be issued
until the fees are paid and, if such fees are not paid within a
reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the
provisions of Section 87.
xx xx xx
211. Contents of charge.—(1) Every charge under this
Code shall state the offence with which the accused is
charged.
(2) If the law which creates the offence gives it any specific
name, the offence may be described in the charge by that
name only.
(3) If the law which creates the offence does not give it any
specific name, so much of the definition of the offence must
be stated as to give the accused notice of the matter with
which he is charged.
(4) The law and section of the law against which the offence
is said to have been committed shall be mentioned in the
charge.
(5) The fact that the charge is made is equivalent to a
statement that every legal condition required by law to
constitute the offence charged was fulfilled in the particular
case.
(6) The charge shall be written in the language of the Court.
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 11 of 38
(7) If the accused, having been previously convicted of any
offence, is liable, by reason of such previous conviction, to
enhanced punishment, or to punishment of a different kind,
for a subsequent offence, and it is intended to prove such
previous conviction for the purpose of affecting the
punishment which the Court may think fit to award for the
subsequent offence, the fact, date and place of the previous
conviction shall be stated in the charge; and if such
statement has been omitted, the Court may add it at any time
before sentence is passed.
212. Particulars as to time, place and person.—(1) The
charge shall contain such particulars as to the time and
place of the alleged offence, and the person (if any) against
whom, or the thing (if any) in respect of which, it was
committed, as are reasonably sufficient to give the accused
notice of the matter with which he is charged.
(2) When the accused is charged with criminal breach of
trust or dishonest misappropriation of money or other
movable property, it shall be sufficient to specify the gross
sum or, as the case may be, describe the movable property
in respect of which the offence is alleged to have been
committed, and the dates between which the offence is
alleged to have been committed, without specifying
particular items or exact dates, and the charge so framed
shall be deemed to be a charge of one offence within the
meaning of Section 219:
Provided that the time included between the first and last of
such dates shall not exceed one year.
213. When manner of committing offence must be
stated.—When the nature of the case is such that the
particulars mentioned in Sections 211 and 212 do not give
the accused sufficient notice of the matter with which he is
charged, the charge shall also contain such particulars of the
manner in which the alleged offence was committed as will
be sufficient for that purpose.
xx xx xx
218. Separate charges for distinct offences.—(1) For
every distinct offence of which any person is accused there
shall be a separate charge, and every such charge shall be
tried separately:
Provided that where the accused person, by an application
in writing, so desires and the Magistrate is of opinion that
such person is not likely to be prejudiced thereby, the
Magistrate may try together all or any number of the charges
framed against such person.
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 12 of 38
(2) Nothing in sub-section (1) shall affect the operation of the
provisions of Sections 219, 220, 221 and 223.
15. On the submission of the police report, Dablu Kujur (supra) refers to an earlier
decision of this Court in Bhagwant Singh v. Commissioner of Police and
Another10, and discusses the power and the role of the Magistrate when he
receives the police report and the options available to him, in the following
words:
“14. When such a Police Report concludes that an offence
appears to have been committed by a particular person or
persons, the Magistrate has three options: (i) he may accept
the report and take cognizance of the offence and issue
process, (ii) he may direct further investigation under subsection
(3) of Section 156 and require the police to make a
further report, or (iii) he may disagree with the report and
discharge the accused or drop the proceedings. If such
Police Report concludes that no offence appears to have
been committed, the Magistrate again has three
options: (i) he may accept the report and drop the
proceedings, or (ii) he may disagree with the report and
taking the view that there is sufficient ground for proceeding
further, take cognizance of the offence and issue process,
or (iii) he may direct further investigation to be made by the
police under sub-section (3) of Section 156.”
It is in this context that the provisions of Sections 190 and 204 of the
Code become important. Clause (a) of Section 190 states that the Magistrate
can take cognisance of an offence on receiving a complaint of facts which
constitute such offence. Clause (b) relates to a situation where the Magistrate
receives a police report carrying such facts, i.e., facts which constitute such
offence. In Minu Kumari and Another v. State of Bihar and Others11 this
Court referred to the options available to the Magistrate on how to proceed in
terms of Section 190(1)(b) of the Code, and held:
“11...The position is, therefore, now well settled that upon
receipt of a police report under Section 173(2) a Magistrate
is entitled to take cognizance of an offence under Section
10 (1985) 2 SCC 537.
11 (2006) 4 SCC 359.
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 13 of 38
190(1)(b) of the Code even if the police report is to the effect
that no case is made out against the accused. The
Magistrate can take into account the statements of the
witnesses examined by the police during the investigation
and take cognizance of the offence complained of and order
the issue of process to the accused. Section 190(1)(b) does
not lay down that a Magistrate can take cognizance of an
offence only if the investigating officer gives an opinion that
the investigation has made out a case against the accused.
The Magistrate can ignore the conclusion arrived at by the
investigating officer and independently apply his mind to the
facts emerging from the investigation and take cognizance
of the case, if he thinks fit, exercise his powers under Section
190(1)(b) and direct the issue of process to the accused.
The Magistrate is not bound in such a situation to follow the
procedure laid down in Sections 200 and 202 of the Code
for taking cognizance of a case under Section 190(1)(a)
though it is open to him to act under Section 200 or Section
202 also. (See India Carat (P) Ltd. v. State of
Karnataka [(1989) 2 SCC 132 : 1989 SCC (Cri) 306 : AIR
1989 SC 885] .)
12. The informant is not prejudicially affected when the
Magistrate decides to take cognizance and to proceed with
the case. But where the Magistrate decides that sufficient
ground does not subsist for proceeding further and drops the
proceeding or takes the view that there is material for
proceeding against some and there are insufficient grounds
in respect of others, the informant would certainly be
prejudiced as the first information report lodged becomes
wholly or partially ineffective. This Court in Bhagwant
Singh v. Commr. of Police held that where the Magistrate
decides not to take cognizance and to drop the proceeding
or takes a view that there is no sufficient ground for
proceeding against some of the persons mentioned in the
first information report, notice to the informant and grant of
opportunity of being heard in the matter becomes
mandatory. As indicated above, there is no provision in the
Code for issue of a notice in that regard.
13. We may add here that the expressions “charge-sheet” or
“final report” are not used in the Code, but it is understood in
Police Manuals of several States containing the rules and
the regulations to be a report by the police filed under
Section 170 of the Code, described as a “charge-sheet”. In
case of reports sent under Section 169 i.e. where there is no
sufficiency of evidence to justify forwarding of a case to a
Magistrate, it is termed variously i.e. referred charge, final
report or summary. Section 173 in terms does not refer to
any notice to be given to raise any protest to the report
submitted by the police. Though the notice issued under
some of the Police Manuals states it to be a notice under
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 14 of 38
Section 173 of the Code, there is nothing in Section 173
specifically providing for such a notice.”
16. This Court in Bhushan Kumar and Another v. State (NCT of Delhi) and
Another12 while referring to Sections 190 and 204 of the Code has observed
that the expression “cognisance” in Section 190 merely means “becoming
aware of”, and when used with reference to a court or a judge it connotes “to
take notice of judicially”. It indicates the juncture at which the court or
Magistrate takes judicial notice of the offence with a view to initiate proceedings
in respect of such an offence. This is different from initiation of proceedings.
Rather, it is a condition precedent to the initiation of proceedings by a
Magistrate or judge. At this stage, the Magistrate has to keep in mind the
averments in the complaint or the police report, and has to evaluate whether
there is sufficient ground for initiation of proceedings. This is not the same as
the consideration of sufficient grounds for conviction, as whether evidence is
sufficient for supporting the conviction or not, can be determined only at the
stage of trial, and not at the stage of cognisance. This aspect is important and
will be subsequently referred to when we examine the decision of this Court in
K. Veeraswami v. Union of India and Others13, and the observations therein
which have been referred to on several occasions in other judgments.
17. Section 204 of the Code does not mandate the Magistrate to explicitly state
the reasons for issue of summons and this is not a prerequisite for deciding
the validity of the summons. Nevertheless, the requirement of the Code is that
the summons is issued when it appears to the Magistrate that there is sufficient
ground for proceeding against the accused. Summons is issued to the person
against whom the legal proceedings have commenced. Wilful disobedience is
12 (2012) 5 SCC 424.
13 (1991) 3 SCC 655.
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 15 of 38
liable to be punished under Section 174 of the Indian Penal Code, 186014. As
a sequitur, keeping in mind both the language of Section 204 of the Code and
the penal consequences, the Magistrate is mandated to form an opinion as to
whether there exists sufficient ground for summons to be issued. While
deciding whether summons is to be issued to a person, the Magistrate can take
into consideration any prima facie improbabilities arising in the case. The
parameters on which a summoning order can be interfered with are well settled
by the decision of this court in Bhushan Kumar (supra). The Magistrate in
terms of Section 204 of the Code is required to exercise his judicial discretion
with a degree of caution, even when he is not required to record reasons, on
whether there is sufficient ground for proceeding. Proceedings initiated by a
criminal court are generally not interfered with by High Courts, unless
necessary to secure the ends of justice.15
18. The decision in Bhushan Kumar (supra) also refers to Section 251 of the
Code, which is a stage post appearance of the accused, and observes:
“20. It is inherent in Section 251 of the Code that when an
accused appears before the trial court pursuant to summons
issued under Section 204 of the Code in a summons trial
case, it is the bounden duty of the trial court to carefully go
through the allegations made in the charge-sheet or
complaint and consider the evidence to come to a
conclusion whether or not, commission of any offence is
disclosed and if the answer is in the affirmative, the
Magistrate shall explain the substance of the accusation to
the accused and ask him whether he pleads guilty
otherwise, he is bound to discharge the accused as per
Section 239 of the Code.”
19. Sections 211 to 213 and Section 218 of the Code deal with the contents of the
charge. The object and purpose of these provisions is to bring the nature of
14 “IPC”, for short.
15 R.P. Kapur v. State of Punjab, AIR 1960 SC 866; State of Haryana and Others v. Bhajan Lal and
Others, 1992 Supp (1) SCC 335.
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 16 of 38
allegations against the accused to his notice. These allegations have to be
proved and established by leading evidence. The accused should not be taken
by surprise or be unbeknownst so as to cause prejudice to him. The provisions
of the Code also prescribe how to interpret the words used in the charge in
terms of Section 214 of the Code, the effect of defects in the charge in terms
of Section 215 of the Code, the power of the court to alter the charge and recall
of the witnesses when a charge is altered in terms of Sections 216 and 217 of
the Code.
20. There is an inherent connect between the chargesheet submitted under
Section 173(2) of the Code, cognisance which is taken under Section 190 of
the Code, issue of process and summoning of the accused under Section 204
of the Code, and thereupon issue of notice under Section 251 of the Code, or
the charge in terms of Chapter XVII of the Code. The details set out in the
chargesheet have a substantial impact on the efficacy of procedure at the
subsequent stages. The chargesheet is integral to the process of taking
cognisance, the issue of notice and framing of charge, being the only
investigative document and evidence available to the court till that stage.
Substantiated reasons and grounds for an offence being made in the
chargesheet are a key resource for a Magistrate to evaluate whether there are
sufficient grounds for taking cognisance, initiating proceedings, and then
issuing notice, framing charges etc.
21. These provisions, however, have to be read along with the power of the police
to investigate under sub-section (8) to Section 173 of the Code even when they
have submitted a report under sub-section (2) to Section 173 of the Code. The
police also has the power to produce additional documents and evidence, as
has been held by this Court in Parkash Singh Badal and Another v. State of
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 17 of 38
Punjab and Others16; Narendra Kumar Amin v. Central Bureau of
Investigation and Others17; and Central Bureau of Investigation v. R.S. Pai
and Another18.
22. Recently a three Judge Bench of this Court in Zakia Ahsan Jafri v. State of
Gujarat and Another19, has observed:
“11. This Court in Dayal Singh noted that the investigating
officer is obliged to act as per the Police Manual and known
canons of practice while being diligent, truthful and fair in
his/her approach and investigation. It has been noted in the
reported decision that an investigating officer is completely
responsible and answerable for the manner and
methodology adopted in completing his investigation.
Concededly, upon completion of investigation, the
investigating officer is obliged to submit report setting out
prescribed details, to the Magistrate empowered to take
cognizance of the offence referred to therein, without
unnecessary delay. The report so presented is the
conclusion reached by the investigating officer on the basis
of materials collected during investigation. The duty of the
investigating officer is to collate every relevant
information/material during the investigation, which he must
believe to be the actual course of events and the true facts
unraveling the commission of the alleged crime and the
person involved in committing the same. He is expected to
examine the materials from all angles. In the event, there is
sufficient evidence or reasonable ground that an offence
appears to have been committed and the person committing
such offence has been identified, the investigating officer is
obliged to record his opinion in that regard, as required by
Section 173(2)(i)(d) of the Code. In other words, if the
investigating officer intends to send the accused for trial, he
is obliged to form a firm opinion not only about the
commission of offence, but also about the involvement of
such person in the commission of crime.
12. Such opinion is the culmination of the analysis of the
materials collected during the investigation - that there is
“strong suspicion” against the accused, which eventually will
lead the concerned Court to think that there is a ground for
“presuming” that the accused “has” committed the alleged
offence; and not a case of mere suspicion. For being a case
of strong suspicion, there must exist sufficient materials to
16 (2007) 1 SCC 1.
17 (2015) 3 SCC 417.
18 (2002) 5 SCC 82.
19 (2022) 6 SCR 1: 2022 INSC 653.
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 18 of 38
corroborate the facts and circumstances of the case; and be
of such weight that it would facilitate the Court concerned to
take cognizance of the crime and eventually lead it to think
(form opinion) that there is ground “for presuming that the
accused has committed an offence”, as alleged – so as to
frame a charge against him in terms of Section 228(1) or
246(1) of the Code, as the case may be. For taking
cognizance of the crime or to frame charges against the
accused, the Court must analyze the report filed by the
investigating officer and all the materials appended thereto
and then form an independent prima facie opinion as to
whether there is ground for “presuming” that the accused
“has” committed an offence, as alleged. (It is not, “may” have
or “likely” to have committed an offence, but a ground for
presuming that he has committed an offence). The
Magistrate in the process may have to give due weightage
to the opinion of the investigating officer. If such is to be the
eventual outcome of the final report presented by the
investigating officer, then there is nothing wrong if he applies
the same standard to form an opinion about the materials
collected during the investigation and articulate it in the
report submitted under Section 173 of the Code. It may be
useful to refer to the decisions adverted to in Afroz Mohd.
Hasanfata including in the case of Ramesh Singh and I.K.
Nangia.
xx xx xx
63. Needless to underscore that every information coming
to the investigating agency must be regarded as relevant.
However, the investigating agency is expected to make
enquiries regarding the authenticity of such information and
after doing so must collect corroborative evidence in support
thereof. In absence of corroborative evidence, it would be
merely a case of suspicion and not pass the muster of grave
suspicion, which is the pre-requisite for sending the suspect
for trial. This is the mandate in Section 173(2)(i)(d) of the
Code, which postulates that the investigating officer in his
report must indicate whether any offence appears to have
been committed and if so, by whom. The opinion of the
investigating officer formed on the basis of materials
collected during the investigation/enquiry must be given due
weightage. That would only be the threshold, to facilitate the
concerned Court to take cognizance of the crime and then
frame charge if it is of the opinion that there is ground for
presuming that the accused has committed an offence
triable under Chapter XIX of the Code.”
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 19 of 38
23. In K. Veeraswami (supra), K. Jagannatha Shetty, J. pronounced the judgment
for himself and M.N. Venkatachaliah, J. (as His Lordship then was) on the
question of contents of the chargesheet and observed:
“75. In the view that we have taken as to the nature of the
offence created under clause (e), it may not be necessary to
examine the contention relating to ingredient of the offence.
But since the legality of the charge-sheet has been
impeached, we will deal with that contention also. Counsel
laid great emphasis on the expression “for which he cannot
satisfactorily account” used in clause (e) of Section 5(1) of
the Act. He argued that that term means that the public
servant is entitled to an opportunity before the Investigating
Officer to explain the alleged disproportionality between
assets and the known sources of income. The Investigating
Officer is required to consider his explanation and the
charge-sheet filed by him must contain such averment. The
failure to mention that requirement would vitiate the chargesheet
and renders it invalid. This submission, if we may say
so, completely overlooks the powers of the Investigating
Officer. The Investigating Officer is only required to collect
material to find out whether the offence alleged appears to
have been committed. In the course of the investigation, he
may examine the accused. He may seek his clarification and
if necessary he may cross check with him about his known
sources of income and assets possessed by him. Indeed,
fair investigation requires as rightly stated by Mr A.D. Giri,
learned Solicitor General, that the accused should not be
kept in darkness. He should be taken into confidence if he is
willing to cooperate. But to state that after collection of all
material the Investigating Officer must give an opportunity to
the accused and call upon him to account for the excess of
the assets over the known sources of income and then
decide whether the accounting is satisfactory or not, would
be elevating the Investigating Officer to the position of an
enquiry officer or a judge. The Investigating Officer is not
holding an enquiry against the conduct of the public servant
or determining the disputed issues regarding the
disproportionality between the assets and the income of the
accused. He just collects material from all sides and
prepares a report which he files in the court as chargesheet.”
The latter portion of the aforesaid paragraph, referring to the details of
the offence and the requirement for them to be proved in order to bring home
the guilt of the accused at the later stage (the stage of trial) by adducing
acceptable evidence, has to be understood in the context that the chargesheet
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 20 of 38
need not elaborately evaluate the evidence, as the process of evaluation is a
matter of trial. This does not mean that the chargesheet should not disclose or
refer to the facts as to meet the requirements of Section 173(2) of the Code,
and the mandate of the State rules. Further, the earlier portion of the same
paragraph, while referring to the opinion of the investigating officer, does so to
demonstrate the significance of the opinion of the investigating officer at this
stage. However, this does not preclude the Magistrate from exercising her
powers in adopting an approach independent from such opinion, as has been
held by this Court in Bhagwant Singh (supra) and Minu Kumari (supra).
24. It is the police report which would enable the Magistrate to decide a course of
action from the options available to him. The details of the offence and
investigation are not supposed to be a comprehensive thesis of the prosecution
case, but at the same time, must reflect a thorough investigation into the
alleged offence. It is on the basis of this record that the court can take effective
cognisance of the offence and proceed to issue process in terms of Section
190(1)(b) and Section 204 of the Code. In case of doubt or debate, or if no
offence is made out, it is open to the Magistrate to exercise other options which
are available to him.
25. In support of our reasoning, we would refer to the very next paragraph in the
judgment of Shetty, J. in K. Veeraswami (supra) which reads as under:
“76. The charge-sheet is nothing but a final report of police
officer under Section 173(2) of the CrPC. The Section 173(2)
provides that on completion of the investigation the police
officer investigating into a cognizable offence shall submit a
report. The report must be in the form prescribed by the
State Government and stating therein (a) the names of the
parties; (b) the nature of the information; (c) the names of
the persons who appear to 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 had been
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 21 of 38
released on his bond and, if so, whether with or without
sureties; and (g) whether he has been forwarded in custody
under Section 170. As observed by this Court in Satya
Narain Musadi v. State of Bihar that the statutory
requirement of the report under Section 173(2) would be
complied with if the various details prescribed therein are
included in the report. This report is an intimation to the
magistrate that upon investigation into a cognizable offence
the Investigating Officer has been able to procure sufficient
evidence for the court to inquire into the offence and the
necessary information is being sent to the court. In fact, the
report under Section 173(2) purports to be an opinion of the
Investigating Officer that as far as he is concerned he has
been able to procure sufficient material for the trial of the
accused by the court. The report is complete if it is
accompanied with all the documents and statements of
witnesses as required by Section 175(5). Nothing more need
be stated in the report of the Investigating Officer. It is also
not necessary that all the details of the offence must be
stated. The details of the offence are required to be proved
to bring home the guilt to the accused at a later stage i.e. in
the course of the trial of the case by adducing acceptable
evidence.
This paragraph examines the contents of the chargesheet and on
elaboration of the same holds that it is in accordance with the terms of Section
173(2) of the Code as well as the provisions of the penal enactment. In
furtherance of this, reference is made to Satya Narain Musadi and Others v.
State of Bihar20, in stating that the chargesheet should comply with the
statutory requirements, and the various details prescribed therein should be
included in the report.
26. The object and purpose of the police investigation is manyfold. It includes the
need to ensure transparent and free investigation to ascertain the facts,
examine whether or not an offence is committed, identify the offender if an
offence is committed, and to lay before the court the evidence which has been
collected, the truth and correctness of which is thereupon decided by the court.
20 (1980) 3 SCC 152.
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 22 of 38
27. In H.N. Rishbud and Inder Singh v. State of Delhi21, this Court notes that the
process of investigation generally consists of: 1) proceeding to the concerned
spot, 2) ascertainment of facts and circumstances, 3) discovery and arrest, 4)
collection of evidence which includes examination of various persons, search
of places and seizure of things, and 5) formation of an opinion on whether an
offence is made out, and filing the chargesheet accordingly. The formation of
opinion is therefore the culmination of several stages that an investigation goes
through. This Court in its decision in Abhinandan Jha and Others v. Dinesh
Mishra22 states that the submission of the chargesheet or the final report is
dependent on the nature of opinion formed, which is the final step in the
investigation.
28. The final report has to be prepared with these aspects in mind and should show
with sufficient particularity and clarity, the contravention of the law which is
alleged. When the report complies with the said requirements, the court
concerned should apply its mind whether or not to take cognisance and also
proceed by issuing summons to the accused. While doing so, the court will
take into account the statement of witnesses recorded under Section 161 of
the Code and the documents placed on record by the investigating officer.
29. In case of any doubts or ambiguity arising in ascertaining the facts and
evidence, the Magistrate can, before taking cognisance, call upon the
investigating officer to clarify and give better particulars, order further
investigation, or even record statements in terms of Section 202 of the Code.
21 (1954) 2 SCC 934.
22 AIR 1968 SC 117.
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 23 of 38
30. Our attention has been drawn to the format prescribed for the State of Uttar
Pradesh, which by column 16 requires the investigating officer to state brief
facts of the case. In addition, the State of Uttar Pradesh has issued a circular
dated 19.09.2023, which refers to an earlier circular bearing No. 59 of 2016
dated 20.10.2016, and states that the investigation provisions contained in the
Code and the police regulations with reference to Section 173 of the Code are
not being consistently complied with and followed by the investigating officers
and the supervising officers. The need to provide lead details of the offence in
the chargesheet is mandatory as it is in accord with paragraph 122 of the police
regulations. Similar directions were issued on 09.09.2022 following the
direction of the High Court of Judicature at Allahabad that brief narration of the
material collected during investigation, which forms the opinion of the
investigating officer, should be mentioned in the chargesheet.
31. Therefore, the investigating officer must make clear and complete entries of all columns in the chargesheet so that the court can clearly understand which crime has been committed by which accused and what is the material evidence available on the file. Statements under Section 161 of the Code and related documents have to be enclosed with the list of witnesses. The role played by
the accused in the crime should be separately and clearly mentioned in the chargesheet, for each of the accused persons.
PART II
32. As we turn to the second part of our judgment, it would be appropriate to lead
our decision in each case with a brief overview of its pertinent facts:
A. Appeal arising out of SLP (Crl.) No. 1074/2017
• The appellants have been involved in a drawn-out litigation with several
parties over the ownership of Property No. 80-A, 23,072 sq. ft., forming a
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 24 of 38
part of Khasra no. 1016/647 and 645, situated within Chandrawli/Shahdara,
now in Abadi, at Circular Road, Shahdara, Delhi- 110032.23
• Appellant No.2 – Sharif Ahmad and Appellant No.3 – Anwar Ahmad (since
deceased), purchased a part in the subject property on behalf of their
partnership firm Dream Land & Co., while Appellant No.1 – Vakil Ahmad
(since deceased) had done so in his individual capacity.
• To avoid prolixity, we would refrain from setting out the facts of the litigation
in detail.
• The challenge before us relates to the First Information Report No. 108/2016
dated 23.05.2016, filed by Respondent No.2/complainant - Mohd. Iqbal,
under Sections 420, 406 and 506 IPC at police station Hafizpur, Hapur, U.P.
against the appellants. The FIR stated that the appellants had agreed to sell
the subject property to Respondent No. 2 and had received part payment for
the registry of the subject property. However, the appellants did not register
the property and also failed to refund the concerned amount to Respondent
No. 2.
• The Police recorded the statements of Respondent No.2, and the witnesses
under Section 161 of the Code.
• According to these statements, the appellants had refused to refund the
amount paid by Respondent No. 2 despite repeated requests to do the same.
• A complaint dated 03.09.2016 was filed against Respondent No. 2 at Police
Station Tis Hazari by relatives of the appellants on account of receiving
threats to their life.
• The appellants challenged FIR No. 108/2016 in W.P. (Cr.) No.20221/2016
before the Allahabad High Court and sought quashing of the proceedings.
23 “subject property”, for short.
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 25 of 38
By an order dated 15.09.2016, the High Court stayed the arrest of the
appellant until filing of the chargesheet.
• On 24.10.2016, a chargesheet was filed against the appellants under
Sections 405 and 506 IPC.
• The appellants approached the Allahabad High Court in Cr. M.A. No.
960/2017 seeking the quashing of the chargesheet and of proceedings in
Case No. 410/2016. The appellants submitted that the chargesheet is vague,
filed without proper investigation, and fails to make out any offence.
• The Allahabad High Court dismissed the application for quashing of the
chargesheet through the impugned order dated 12.01.2017.
• Hence, the appellants have filed the present appeal.
33. The FIR as registered, on the question of intimidation states that on 19.03.2016
the appellants had flatly refused to refund the money and had told Respondent
No. 2 that they can do whatever they want. They had threatened the entire
family of the complainant.
34. The chargesheet submitted by the investigating officer in the present case,
under column 16 referring to the facts of the case, reads as under:
“Sir, the above said case was got registered by the
complainant Shri Iqbal on 23/5/16 at this police station, the
investigation of which handed over to me S.I., the
investigation of which done by me S.I. and from all the
investigation till now, statement of the complainant,
statement of the witnesses and inspection of place of
occurrence, the deal of plot measuring 2600 which is at
behind Sadar Police Station was finalized by the accused
persons with the complainant and his partner Surender
Sharma for 4 crore, for which by not getting executed the
registry of the same at the time of the complainant and after
receiving a sum of Rs. 1 crore of his partner Surender
Sharma as earnest money, selling of plot to Kusum Jain and
D.K. Jain, by not refunding a sum of Rs. 1 crore of the
complainant and his partner, grabbing by doing breach of
trust, making pretexts on demanding again and again and
the threat to kill, hence the offence under section 406, 506
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 26 of 38
I.P.C. is thoroughly proved upon the accused persons Sharif
Ahmed, Anwar Ahmed, Vakil Ahmed, Aadil Ahmed, the
occurrence of section 420 I.P.C. is not found, hence the
challan of the accused persons, by charge sheet No. 153/16
is filled in the court, it is prayed that punishment may be
given by calling the proof.”
35. A reading thereof would indicate that it refers to the complaint made by
Respondent No. 2 – Iqbal on 23.05.2016 relating to the deal of a plot in respect
of which part consideration was paid as earnest money. But thereafter, the
appellants had sold the plot and were not refunding the earnest money and by
doing so have committed breach of trust under Section 406 of the IPC. It also
refers to the alleged pretexts being made by the appellants on money being
demanded and a threat to kill being extended. It is also recorded that an
offence under Section 506 has been proved to have been committed. At the
same time, the chargesheet states that no offence under Section 420 of the
IPC is found to have been committed.
36. An offence under Section 406 of the IPC requires entrustment, which carries
the implication that a person handing over any property or on whose behalf the
property is handed over, continues to be the owner of the said property.
Further, the person handing over the property must have confidence in the
person taking the property to create a fiduciary relationship between them. A
normal transaction of sale or exchange of money/consideration does not
amount to entrustment.24 Clearly, the charge/offence of Section 406 IPC is not
even remotely made out.
37. The chargesheet states that the offence under Section 420 is not made out.
The offence of cheating under Section 415 of the IPC requires dishonest
24 See Section 405 of the IPC and judgments of this Court in State of Gujarat v. Jaswantlal Nathalal
AIR 1968 SC 700; Indian Oil Corpn. v. NEPC India Ltd. and Others (2006) 6 SCC 736; Central Bureau
of Investigation, SPE, SIU(X), New Delhi v. Duncans Agro Industries Ltd., Calcutta (1996) 5 SCC 591.
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 27 of 38
inducement, delivering of a property as a result of the inducement, and damage
or harm to the person so induced. The offence of cheating is established when
the dishonest intention exists at the time when the contract or agreement is
entered, for the essential ingredient of the offence of cheating consists of
fraudulent or dishonest inducement of a person by deceiving him to deliver any
property, to do or omit to do anything which he would not do or omit if he had
not been deceived. As per the investigating officer, no fraudulent and dishonest
inducement is made out or established at the time when the agreement was
entered.
38. An offence of criminal intimidation arises when the accused intendeds to cause
alarm to the victim, though it does not matter whether the victim is alarmed or
not. The intention of the accused to cause alarm must be established by
bringing evidence on record. The word ‘intimidate’ means to make timid or
fearful, especially: to compel or deter by or as if by threats.25 The threat
communicated or uttered by the person named in the chargesheet as an
accused, should be uttered and communicated by the said person to threaten
the victim for the purpose of influencing her mind. The word ‘threat’ refers to
the intent to inflict punishment, loss or pain on the other. Injury involves doing
an illegal act.
39. This Court in Manik Taneja and Another v. State of Karnataka and
Another26, had referred to Section 506 which prescribes punishment for the
offence of ‘criminal intimidation’ as defined in Section 503 of the IPC, to
observe that the offence under Section 503 requires that there must be an act
of threating another person with causing an injury to his person, reputation or
25 “intimidate”. Merriam-Webster.com. Merriam-Webster, 2024.
26 (2015) 7 SCC 423.
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 28 of 38
property, or to the person or reputation of any one in whom that person is
interested. This threat must be with the intent to cause alarm to the person
threatened or to do any act which he is not legally bound to do, or omit to do
an act which he is entitled to do. Mere expression of any words without any
intent to cause alarm would not be sufficient to bring home an offence under
Section 506 of the IPC. The material and evidence must be placed on record
to show that the threat was made with an intent to cause alarm to the
complainant, or to cause them to do, or omit to do an act. Considering the
statutory mandate, offence under Section 506 is not shown even if we accept
the allegation as correct.
40. In view of the aforesaid position, we quash the chargesheet and the
summoning order. The appellants are discharged. We clarify that the
observations made above will have no bearing on the civil proceedings, if any,
already initiated or which may be initiated in future by the
respondent/complainant.
B. Appeal arising out of SLP (Crl.) No. 5419/2022
• On 26.06.2019 the complainant – Wakeel Ahmad filed a complaint before the
Additional Chief Judicial Magistrate, alleging that the accused persons,
including the appellant – Imran, routinely take money on the pretext of bainama
of property, and subsequently deny entering into such agreement and
receiving any money.
• The court allowed the said complaint and ordered the concerned Police Station
to register the complaint under Sections 420 and 120B IPC. FIR No. 519/2019
dated 26.07.2019 was registered at Police Station Chandpur, Bijnor, Uttar
Pradesh. The complainant also stated that the accused persons had
threatened the complainant against pursuing legal action against them.
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 29 of 38
• By an order dated 19.09.2019, the High Court partly allowed the appellant’s
anticipatory bail application and directed the police not to arrest the appellant
till the submission of the chargesheet.
• Chargesheet No. 582/2019 dated 18.10.2019 was filed, submitting that
charges under Sections 420 and 120B IPC are established. The chargesheet
lists the details of the accused as mentioned in the FIR and the relevant column
relating to brief facts in the chargesheet reads:
“Requesting to the Hon’ble Court is that on 28.07.2019 the
Hon’ble Court ordered under section 156(3) Cr. P.C. for
registering a FIR No. 519/2019 under the section of 420,
120B IPC against
1. Ziyauddin S/o Gyasudding aged about 70 years
2. Zamaluddin S/o Gyasuddin aged about 65 years
3. Kamaluddin S/o Gyasuddin aged about 50 years
4. Rahisuddin S/o. Unknown
5. Imran aged about 36 years S/o Zamaluddin
6. Kahsif S/o Zamaluddin aged about 31 all are residence of
Mohalla Ktarmal, kasba Chandpur, Chanpur, Bijnor, UP. the
crime under section 420, 120B IPC is proved against the
Ziyauddin S/o Gyasudding, Zamaluddin S/o Gyasuddin,
Kamaluddin S/o Gyasuddin, Rahisuddin S/o Unknown,
Imran S/o Zamaluddin, Kahsif S/o Zamaluddin.
Hence, filing this charge sheet before the Hon’ble court and
requesting to this Hon’ble court to punish the all the
accused.”
• By an order dated 10.05.2021, the Allahabad High Court granted interim
anticipatory bail to the appellant till 03.01.2022, in terms of the conditions
mentioned in the order, and observed that the appellant herein may approach
the High Court again if so advised, in case of a change in circumstances.
• On 23.03.2022, Allahabad High Court dismissed the Criminal Misc.
Anticipatory Bail Application No.2235/2022 filed by the appellant, on the
grounds of non-bailable warrants having been issued against the appellant and
the chargesheet having been filed.
• Hence, the appellant has filed the present appeal.
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 30 of 38
41. We have already referred to the facts and also to the ingredients of the offence
under Section 420 IPC. The assertions made in the FIR allege that the accused
are frauds who have taken bainama (earnest money on the property), but
thereafter are making excuses. The complainant had visited the accused at
their house who had then threatened them to implicate them in false cases.
They denied having received the money.
42. We allow the present appeal and direct that in the event of the appellant being
arrested, he shall be released on bail by the arresting officer/investigating
officer/trial court on the terms and conditions to be fixed by the trial court.
43. However, what is surprising and a matter of concern in the present case, is
that the police had initially rightly not registered the FIR, which had prompted
the complainant to approach the Court of Additional Chief Judicial Magistrate,
Chandpur, Bijnor, Uttar Pradesh, alleging that he is an honest and respected
person in the society and is well established in business, while the accused
are fraudulent individuals. The Additional Chief Judicial Magistrate had
subsequently ordered for the FIR to be registered on the basis of the written
complaint.
44. We would also like to emphasise on the need for a Magistrate to be cautious
in examining whether the facts of the case disclose a civil or a criminal wrong.
Attempts at initiating vexatious criminal proceedings should be thwarted early
on, as a summoning order, or even a direction to register an FIR, has grave
consequences for setting the criminal proceedings in motion.27 Any effort to
settle civil disputes and claims which do not involve any criminal offence, by
27 Deepak Gaba and Others v. State of U.P. and Another, (2023) 3 SCC 423.
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 31 of 38
way of applying pressure through criminal prosecution, should be deprecated
and discouraged.28
C. Appeal arising out of SLP (Crl.) No. 9482/2021
• The complainant and Respondent No. 2 herein – Rajesh Wangvelu made a
written complaint to the Station Officer, Police Station Aliganj, Lucknow,
alleging that on 23.12.2019 at about 12:15 p.m. two officers of the National
Research Laboratory for Conservation of Cultural Property, Lucknow29,
namely, Bachhan Singh Rawat, Security Officer and Mahendra Kumar,
Division Clerk/Caretaker had attacked him with a helmet and lathi, and had
threatened to kill him. At about 1:12 p.m. FIR No. 556/2019 dated 23.12.2019
was registered against Bachhan Singh Rawat and Mahendra Kumar under
Section 323, 504 and 506 IPC.
• A statement under Section 161 of the Code was also recorded, where Rajesh
Wangvelu stated that he was discriminated against for belonging to a different
State. He had done nothing wrong and did not allow his subordinates to do
anything wrong, for which reason Bachhan Singh Rawat and Mahender Kumar
remained angry with him. He added in his statement that the appellant –
Manager Singh was also present during this altercation. He had abused him
and stated – “maaro sale ko, bahut imandaar banta hai” i.e., “hit him, he wants
to be too honest”. Bachhan Singh Rawat and Mahendra Kumar had hit him till
he fainted. When he regained consciousness, they had left the place.
• Manager Singh, as the Director General of the NRLC, claims that he had
noticed several discrepancies and administrative errors committed by Rajesh
Wangvelu, who was working as the Library and Information Officer.
28 Indian Oil Corpn. v. NEPC India Ltd. and Others, (2006) 6 SCC 736.
29 “NRLC”, for short.
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 32 of 38
• After issuing show-cause notices to Rajesh Wangvelu and considering his
response, the Ministry of Culture issued a letter dated 02.08.2019, under the
signature of appellant, indicating that Rajesh Wangvelu prima facie appeared
to have committed temporary embezzlement of Rs. 38,338/- and for which
action should be taken.
• A decision to shift the library was also confirmed by a committee, to which
Rajesh Wangvelu had expressed his displeasure. On the day of shifting, i.e.
23.12.2019, a physical altercation occurred between Rajesh Wangvelu and the
officers Bachhan Singh Rawat and Mahendra Kumar.
• Manager Singh has relied upon written communication of Bachhan Singh
Rawat in which he has stated that on 23.12.2019 at about 12:00 noon, he was
informed by Mahendra Kumar, that Rajesh Wangvelu had taken some items in
his bag without the gate pass. Information in this regard had been given to
Manager Singh and the Vigilance Officer. When Bachhan Singh Rawat had
tried to frisk Rajesh Wangvelu, he had, in presence of another staff member
Dr. Neeta Nigam, threatened Bachhan Singh Rawat and Mahendra Kumar with
dire consequences and had sprayed chemical on their faces. Rajesh
Wangvelu had assaulted them and thereupon had run away from the spot. On
23.12.2019 Manager Singh had accordingly written a letter to the Station
Officer of Aliganj Police Station, informing him of the incident. Manager Singh
is also relying on the communication dated 26.12.2019 written by him to the
Director General of Police, Lucknow, and the communication dated 06.01.2020
by the appellant Manager Singh to the sub-inspector, and inquiry officer Police
Station Aliganj.
• Rajesh Wangvelu was examined at 01:30 p.m., and his medical legal report
dated 23.12.2019 refers to six injuries which have been found to be caused by
a hard and blunt object. The injuries were simple. Rajesh Wangvelu, however,
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 33 of 38
also relies upon a report dated 24.12.2019, obtained by a private diagnostic
centre, which states that there was a fracture at the head of the fifth metacarpal
bone of the left hand.
• Manager Singh filed a petition for quashing of the proceedings arising out of
FIR No. 556/2019 before the Allahabad High Court. He was given the benefit
of arrest till the filing of the chargesheet, by an order of the High Court dated
09.01.2020.
• On 04.02.2020, a chargesheet was filed with an addition of Sections 308, 325
and 120B IPC, and impleading Manager Singh as an accused. The
chargesheet under Section 173 of the Code, submitted before the court in the
present case, under the column relating to brief facts of the case reads as
under:
“Sir, the aforesaid case was registered on the basis of
written report/complaint of the complainant of the case and
the investigation was being done by the S.I. Shri
Ramchandra Mishra. On 15.01.2020 I have received the
investigation. During the investigation, on the basis of the
statement of the complainant as well as on the basis of
medical report, section 120B/308/325 IPC was added and
the name of accused Manager Singh has come into light, in
which Bachan Sing Rawat and Mahendra Kumar were sent
in judicial custody on 24.12.19. Till the filing of charge sheet,
the accused Manager Singh has been granted stay of arrest
by the court. The offences under Section
323/504/506/120B/308/325 IPC are duly proved against the
accused Bachan Singh Rawat, Mahendra Kumar and
Manger Singh. Therefore, charge sheet is filed against the
accused Bachan Singh Rawat, Mahendra Kumar and
Manager Singh under Section 323/504/506/120B/308/325
IPC before the Hon’ble Court. It is requested to summon the
proof and punish and accused.”
• On the chargesheet being submitted in the court of the Magistrate, order dated
10.02.2020 was passed recording that the chargesheet has been submitted
for offences under 323, 504, 506, 120B, 308, 325 of the IPC against Bachhan
Singh Rawat, Mahendra Kumar and Manager Singh. The order, taking
cognisance and issuing summons, reads:
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 34 of 38
“The chargesheet was filed under the offence number
556/2019, Section 323, 504, 506, 120B, 308, 325, IPC,
Police Station Aliganj against the accused Bachan Singh
Rawat, Mahendra Kumar and Manager Singh. Reviewed all
prosecution forms. The grounds for taking cognizance are
sufficient. Cognizance is taken.
ORDER
Register the case. The copies are ready attached. Accused
Bachan Singh Rawat and Mahendra Kumar are out on bail.
Jamanatnama is attached in the file and the arrest of the
accused Manager Singh was a stay on the arrest till the filing
of the chargesheet in the sequence of the order of the
Hon’ble High Court, Miscellaneous Bench – 262/2020 order
dated 09-01-20. Summons issued against the accused.
Giving copy for paperwork. Attendance should be presented
on 01-03-2020.”
• It appears that the matter was taken up for hearing by the Special Chief Judicial
Magistrate, Lucknow on 18.02.2021, which records the presence of the
counsel for Rajesh Wangvelu and that application for exemption from personal
appearance was moved on behalf of Bachhan Singh Rawat and Mahendra
Kumar. Manager Singh was absent and bailable warrants were issued against
him, and he was required to appear on 04.03.2021.
• On 04.03.2021, an application for exemption from personal appearance was
moved on behalf of Manager Singh on the ground that he had gone out for
personal reasons where he had taken ill. This application was rejected on
04.03.2021 by the Special Chief Judicial Magistrate, recording that Manager
Singh had not obtained bail till then and there is no provision for granting
exemption from personal appearance prior to obtaining bail. Therefore, nonbailable
warrants have been issued against him.
• Another order dated 04.03.2021 records that bailable warrants were issued
against Manager Singh but he had remained absent. To ensure his personal
appearance non-bailable warrants were issued against him.
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 35 of 38
• By the impugned order dated 16.03.2021, the High Court had dismissed the
petition filed by Manager Singh under Section 482 of the Code, to quash the
criminal proceedings against him.
• On 03.09.2021, the High Court granted a further period of 10 days’ time to
Manager Singh to surrender. He did not surrender and filed another application
seeking extension of time to surrender.
• On 03.12.2021, Manager Singh filed the present appeal challenging
correctness of the impugned order dated 16.03.2021.
• Rajesh Wangvelu has, before us, referred to FIR No. 224 of 2020 registered
under Sections 406, 419, 420, 467, 468, 471 IPC on account of certain
contracts having been awarded by Manager Singh, Dr. Neeta Nigam, Bachhan
Singh Rawat, Mahendra Kumar, to M/s. V.K. Singh Construction Company,
Punjab, in which case a final report has been submitted to the court. He has
also referred to an office order dated 03.09.2021 passed by the Government
of India, Ministry of Culture, terminating services of Manager Singh with
immediate effect.
45. Having regard to the facts of the present case, including the chargesheet as
filed, which in our opinion is bereft of all details and particulars, we quash the
summoning order against Manager Singh. The Special Chief Judicial
Magistrate, would re-examine the entire matter in terms of the observations
made in the present judgment and thereupon proceed in accordance with law.
46. We, however, would allow the present appeal to the extent that the nonbailable warrants issued against Manager Singh are unsustainable and should be quashed. It is a settled position of law that non-bailable warrants cannot be issued in a routine manner and that the liberty of an individual cannot be curtailed unless necessitated by the larger interest of public and the State.
While there are no comprehensive set of guidelines for the issuance of nonbailable warrants, this Court has observed on several occasions that nonbailable warrants should not be issued, unless the accused is charged with a heinous crime, and is likely to evade the process of law or tamper/destroy evidence. Inder Mohan Goswami and Another v. State of Uttaranchal and Others, (2007) 12 SCC 1; Vikas v.State of Rajasthan, (2014) 3 SCC 321.
47. Further, the observation that there is no provision for granting exemption from personal appearance prior to obtaining bail, is not correct, as the power to grant exemption from personal appearance under the Code.{ Section 205 of the Code. Also see, Section 317 of the Code} should not be read in a restrictive manner as applicable only after the accused has been granted bail. This Court in Maneka Sanjay Gandhi and Another v. Rani Jethmalani (1979) 4 SCC 167. held that the power to grant exemption from personal appearance should be exercised liberally, when facts and circumstances require such exemption. See also, Puneet Dalmia v. Central Bureau of Investigation, Hyderabad, (2020) 12 SCC 695. Section 205 states that the Magistrate, exercising his discretion, may dispense
with the personal attendance of the accused while issuing summons, and allow them to appear through their pleader. While provisions of the Code are considered to be exhaustive, cases arise where the Code is silent and the court has to make such order as the ends of justice require. In such cases, thecriminal court must act on the principle, that every procedure which is just and fair, is understood as permissible, till it is shown to be expressly or impliedly prohibited by law. See, Popular Muthiah v. State Represented by Inspector of Police (2006) 7 SCC 296 and earlier judgment of the Calcutta High Court in Rahim Sheikh (1923) 50 Cal 872, 875.
48. It is also directed that Manager Singh shall be released on bail by the arresting
officer/ investigating officer/trial court on the terms and conditions to be fixed
34 See, Popular Muthiah v. State Represented by Inspector of Police (2006) 7 SCC 296 and earlier
judgment of the Calcutta High Court in Rahim Sheikh (1923) 50 Cal 872, 875.
Crl. Appeal @ SLP (Crl.) No. 1074 of 2017 & Ors. Page 37 of 38
by the trial court in connection with the chargesheet originating from FIR No.
556 of 2019. The direction given by the High Court in its order dated
09.01.2020 restricting the grant of anticipatory bail till the filing of the
chargesheet is accordingly modified. We have issued the said direction in
exercise of power under Article 142 read with Article 136 of the Constitution of
India in view of the peculiar facts of the present case, including issue of nonbailable
warrants etc. by the court of Special Chief Judicial Magistrate.
CONCLUSION
49. In view of the aforesaid discussion,
(i) the appeal arising out of SLP (Crl.) No. 1074/2017 preferred by
Sharif Ahmed and Adil is allowed and the criminal proceedings are
quashed;
(ii) the appeal arising out of SLP (Crl.) No. 5419/2022 is allowed with
the direction that in the event of being arrested, the appellants –
Imran and Kamaluddin shall be released on anticipatory bail in
connection with the chargesheet under Sections 420 and 120B IPC
arising out of FIR No. 519/2019 dated 26.07.2019 registered at
Police Station Chandpur, District Bijnor, Uttar Pradesh on terms and
conditions to be fixed by the trial court. In addition, the appellants –
Imran and Kamaluddin shall comply with the conditions mentioned
in Section 438(2) of the Code;
(iii) the appeal arising out of SLP (Crl.) No. 9482/2021 preferred by
Manager Singh is partly allowed by –
(a) quashing the summoning order issued against Manager Singh,
with an order of remand to the Magistrate in terms of the
observations in this judgment;
(b) quashing the non-bailable warrants issued against Manager
Singh; and
(c) directing release of Manager Singh on bail by the arresting
officer/investigating officer/trial court on terms and conditions
fixed by the trial court in connection with the chargesheet under
Sections 323, 504, 506, 120B, 308 and 325 IPC, arising out of
FIR No. 556/2019 dated 23.12.2019 registered at Police Station
Aliganj, District Lucknow, Uttar Pradesh.
......................................J.
(SANJIV KHANNA)
......................................J.
(S.V.N. BHATTI)
NEW DELHI;
MAY 01, 2024.
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