Supreme Court: Whether the court can acquit accused if complainant was of criminal background?

 The High Court also accepted the defence version made under Section 313 of Code of Criminal Procedure, 1973 and recorded the findings that the possibility of Phenolphthalein powder appearing on the hands of the Respondent-accused when he shook hands with the complainant cannot be ruled out. The High Court further took note of various subsequent developments that certain complaints were filed against him by the CBI having disproportionate assets. The complainant Naresh Kumar Kapoor was a man having a criminal background. He was involved in a murder case as well as in a case of sale of shares in bogus names. The High Court further observed that in case two views are possible, the view favouring the accused has to be given preference, thus gave the benefit of doubt to the Respondent accused and acquitted him.{Para 9}

10. Undoubtedly, the reasoning given by the High Court does not deserve to be accepted for the reason that even if the complainant had a criminal background, he can still be forced by the officer of the Income Tax Department to pay illegal gratification for not reopening the assessment of a particular year. The subsequent cases against the Respondent-accused for having disproportionate assets cannot be co-related with the incident of trap case. The incident in which the Respondent had been arrested for taking illegal gratification has to be examined on its own merit. 

  IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2052 of 2010

Decided On: 12.08.2013

State of Punjab Vs. Madan Mohan Lal Verma

Hon'ble Judges/Coram:

B.S. Chauhan and S.A. Bobde, JJ.

Author: B.S. Chauhan, J.

Citation: (2013) 14 SCC 153,2013 INSC 530,MANU/SC/0776/2013,AIR SC 3368.

Read full judgment here: Click here.

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Bombay HC: Session Judge should not reject bail application of accused relying on documents produced across the bar by the complainant, which do not form part of the record of the investigation

 The Court also considered photographs produced by the complainant in Court, which were considered to arrive at a conclusion that she sustained injuries on her upper limbs. It is difficult to countenance such a procedure being followed by Sessions Court, whilst considering a bail application, to look into documents produced across the bar by the complainant, which do not form part of the record of the investigation. It is not expected of a Sessions Court to consider such material which does not form part of the investigation papers, but is taken as a ground for rejection of a bail. 

IN THE HIGH COURT OF BOMBAY AT GOA

CRIMINAL APPLICATION (BAIL) NO.32 OF 2025

Mr. Vinod Shetkar Vs  State of Goa

CORAM : VALMIKI MENEZES,J.

PRONOUNCED ON : 25th June 2025

Citation: 2025:BHC-GOA:1019,2025 ALLMR (CRI) 2928.

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Supreme Court: Appellate court can not enhance sentence in appeal filed by accused against conviction in absence of counter appeal by complainant or state

 In this regard, it must be noted that for exercise of powers of the appellate court for enhancement of sentence in an appeal filed either by the State or the complainant or the victim, the Code of Criminal Procedure provides that the appellate court can reverse the finding and sentence and acquit or discharge the Accused, or order him to be re-tried by a court competent to try the offence, or alter the finding by maintaining the sentence, or with or without altering the finding, alter the nature or the extent, of the sentence so as to enhance or reduce the same. Thus, the power to enhance the sentence can be exercised by the appellate court only in an appeal filed by the State, victim or complainant, provided the Accused has had an opportunity of showing cause against such enhancement. It is further provided that the appellate court shall not inflict greater punishment for the offence which in its opinion the Accused has committed, than might have been inflicted for that offence by the court passing the order of sentence under appeal. Therefore, in an appeal for enhancement of sentence filed by the State etc., unless the conditions prescribed in the form of provisos to Section 386 of Code of Criminal Procedure are complied with by the appellate court, there cannot be an enhancement of sentence. Obviously in such an appeal for enhancement of sentence, the convict or the Accused is the Respondent and therefore there cannot be enhancement of sentence unless the Accused or convict has been heard. However, under the scheme of Section 386 of Code of Criminal Procedure vis-a-vis in an appeal for enhancement of sentence, there can also be an acquittal of the Accused as per Sub-clause (i) of Clause (c) of Section 386 of Code of Criminal Procedure. But, on the other hand, in an appeal from a conviction, it has been expressly stated that there cannot be enhancement of the sentence. Therefore, while in an appeal for enhancement of sentence filed by the State, the Accused can make out a case for acquittal or discharge or retrial, in the case of an appeal from conviction, the Respondent in such an appeal, namely the State or the victim or the complainant, cannot seek enhancement of the sentence than what has been awarded by the Trial Court in the absence of filing any appeal or revision. The above distinction can be explained by way of a latin maxim which has been discussed by Ujjal Bhuyan, J., while in Bombay High Court, in Jyoti Plastic Works Pvt. Ltd. v. Union of India and Ors.,   MANU/MH/1857/2020, in the following words:

40. In this connection we may refer to the maxim reformatio in peius. It is a latin phrase meaning a change towards the worse i.e., a change for the worse. As a legal expression it means that a lower court judgment is amended by a higher court into a worse one for those appealing it. In many jurisdictions, this practice is forbidden ensuring that an Appellant cannot be placed in a worse position as a result of filing an appeal. When the above phrase is prefixed by the words 'no' or 'prohibition', which would render the maxim as no reformatio in peius or prohibition of reformatio in peius, it would denote a principle of procedure as per which using a remedy available in law should not aggravate the situation of the person who avails the remedy. In other words, a person should not be placed in a worse position as a result of filing an appeal. No reformatio in peius or prohibition of reformatio in peius is a part of fair procedure and thus by extension can also be construed as part of natural justice. It is not only a procedural guarantee but is also a principle of equity.

14. The rationale of the above can be explained in simple language by stating that no Appellant by filing an appeal can be worse-off than what he was. That is exactly what we are seeking to reiterate in our judgment having regard to the facts of the present case.{Para 13}

Ratio Decidendi:

In an appeal filed by the Accused/convict and in the absence of any appeal filed by the victim, complainant or the State, the High Court cannot exercise suo motu revision either to enhance the sentence or to convict the Appellant on any other charge.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 2892-2893 of 2025.

Decided On: 04.06.2025

Nagarajan Vs. State of Tamil Nadu

Hon'ble Judges/Coram:

B.V. Nagarathna and S.C. Sharma, JJ.

Author: B.V. Nagarathna, J.

Citation: 2025 INSC 802,MANU/SC/0808/2025.

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Bombay HC: Prosecution under SC & ST (Atrocities) Act is liable to be quashed if caste of the complainant or the accused is not mentioned in the complaint

The learned Counsel for the applicant had relied on a decision of this Court reported in MANU/MH/0877/2005 : 2005(4)MhLj588 , Manohar Kulkarni v. State of Maharashtra. This Court has made the following observations.

It is a precondition that person committing the alleged offence must not be belonging to Scheduled Castes or Scheduled Tribes. In the report filed in the Police Station, there ought to have been some averment indicating that the offender does not belong to Scheduled Castes or Scheduled Tribes. In the absence of such averment or any other material before the Police Station Officer for coming to the conclusion that the accused named in the said report does not belong to Scheduled Castes or Scheduled Tribes, the offence under Section 3 of the Atrocities Act cannot be registered.

It is apparent from this observations of this Court that the F.I.R. should not only disclose the caste of the complainant but it must also disclose the caste of the accused. If we go through the F.I.R., copy of which has been filed on record of this case, it would be clear that the report does disclose the caste of the complainant but it does not disclose the caste of the offender at all. The learned Counsel for the complainant/respondent No. 2 submitted that when the caste of the complainant itself is disclosed and it is alleged that he was abused on the basis of the caste, he is the person who does not belong to scheduled caste. Such an inference cannot be drawn. He also submitted that even if name of the complainant is seen, he does not belong to scheduled caste. Even such an inference cannot be drawn. The surnames in the State of Maharashtra is very deceptive. For instance, surnames Athawale, Abhyankar are to be found amongst Brahmins and such surnames are also to be found amongst scheduled castes. It cannot, therefore, be said that the surname can be a guide to find a caste of any particular person. It is particularly for this reason that it becomes necessary that the caste of the offender must also be disclosed in the complaint. In this particular case, the caste of the complainant is not disclosed in the complaint and yet the offence has been registered by the police. This Court in Manohar Kulkarni's case has specifically held that in no case the Police Officer can register an offence if caste of the complainant or the accused is not mentioned in the complaint. {Para 4}

8. Since I am bound by the decision in Manohar Kulkarni's case, I must hold that the F.I.R. under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act needs to be quashed. Hence, the following order. The petition is allowed to the extent that the F.I.R. registered under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act stands quashed.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Cri. Appln. No. 1877 of 2007

Decided On: 04.10.2007

Prakash Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

C.L. Pangarkar, J.

Citation:  MANU/MH/1127/2007,2008(1) MHLJ 139,2008(2) Crimes 168.

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Can an informant /raiding officer conduct investigation in offences under NDPS Act?

 Supreme Court Ruling: Mukesh Singh vs. State (Narcotic Branch of Delhi)2020 SCC OnLine SC 700, decided on 31.08.2020.

Yes, an informant/raiding officer can conduct investigation in offences under the NDPS Act, according to the Supreme Court's landmark judgment in Mukesh Singh vs. State (Narcotic Branch of Delhi) decided on August 31, 2020.

Key Holdings of the 5-Judge Constitution Bench

No Blanket Rule Against Informant as Investigator

The 5-judge Constitution Bench comprising Justices Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and S. Ravindra Bhat held that "accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is not entitled to an acquittal as a blanket rule merely because the complainant is the investigating officer".

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Supreme court: Factum of demand should be established through direct or circumstantial evidence in order to presume the commission of offences U/S 13(1)(d)(i)(ii) U/S 20, PC Act, 1988.

  A Constitution Bench judgment of this Court in are cent decision dated 15th December, 2022 in Criminal AppealNo.1669 of 2009  (Neeraj Dutta    vs. State     (Govt. of NCT of Delhi ) 

holds that when the

complainant does not support the prosecution, the demand made by the accused can be otherwise proved by the prosecution even on the basis of circumstantial evidence. While saying so, the Constitution Bench has reiterated that the offer by the bribe giver and the demand by the public servant have to be proved by the prosecution as a fact in issue. The Constitution Bench reiterated that mere acceptance or receipt of illegal gratification without anything more would not make it an offence under Section 7 or Section 13(d) of the PC Act. {Para 5}

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1779 OF 2010

SHANKARLAL SHARMA  Vs. STATE OF MADHYA PRADESH

Author: Abhay S.Oka, J.

Dated: February 23, 2023.

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Supreme Court Recognizes Complainant as Victim, Grants Unconditional Appeal Right in Cheque Bounce Acquittals

 Background

In a significant judgment delivered on April 8, 2025, the Supreme Court of India addressed a crucial legal question: Can a complainant in a cheque dishonour case under Section 138 of the Negotiable Instruments Act, 1881, appeal an acquittal order as a "victim" under the proviso to Section 372 of the Code of Criminal Procedure (CrPC), without seeking special leave under Section 378(4) of the CrPC? This issue arose in the case of M/s. Celestium Financial v. A. Gnanasekaran & Others, where the appellant, a financial firm, sought to challenge the acquittal of borrowers who had defaulted on multiple loans and whose cheques were dishonoured due to insufficient funds.

Read full judgment here: Click here.

Factual Matrix

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Supreme Court: Magistrate Can't Direct FIR Registration Under S.156(3) CrPC If Complainant Didn't Approach Police Before u/s 154(1) & 154(3)

We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR."{Para 31}

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

ABHAY S. OKA; J., UJJAL BHUYAN; J.

CRIMINAL APPEAL NO.4313 OF 2024;

 RANJIT SINGH BATH & ANR Vs UNION TERRITORY CHANDIGARH & ANR.

Dated: March 06, 2025.

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Supreme Court: Revision against an order u/s 319 CrPC rejecting application for summoning of additional accused is maintainable.

 In our considered opinion, the complainant ought to have challenged the order before the High Court in revision under Section 397 of Code of Criminal Procedure and not by invoking inherent jurisdiction of the High Court under Section 482 of Code of Criminal Procedure Maybe, in order to circumvent the provisions contained in Sub-section (2) of Section 397 or Section 401, the complainant moved the High Court under Section 482 of Code of Criminal Procedure. In the event a criminal revision had been filed against the order of the Sessions Judge passed under Section 319 of Code of Criminal Procedure, the High Court before passing the order would have given notice and opportunity of hearing to the Appellants. {Para 22}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 814 of 2013 

Decided On: 01.07.2013

Mohit and Ors. Vs. State of U.P. and Ors.

Hon'ble Judges/Coram:

P. Sathasivam and M.Y. Eqbal, JJ.

Author: M.Y. Eqbal, J.

Citation: MANU/SC/0633/2013 : AIR 2013 SC 2248.

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What are basic principles for exercise of revisional jurisdiction by high court at the instance of a private complainant?

The High Court was exercising the revisional jurisdiction at the instance of a private complainant and, therefore, it is necessary to notice the principles on which such revisional jurisdiction can be exercised. Sub-section (3) of Section 401 of Code of Criminal Procedure prohibits conversion of a finding of acquittal into one of conviction. Without making the categories exhaustive, revisional jurisdiction can be exercised by the High Court at the instance of private complainant (1) where the trial court has wrongly shut out evidence which the prosecution wished to produce, (2) where the admissible evidence is wrongly brushed aside as inadmissible, (3) where the trial court has no jurisdiction to try the case and has still acquitted the accused, (4) where the material evidence has been overlooked either by the trial court or the appellate court or the order is passed by considering irrelevant evidence and (5) where the acquittal is based on the compounding of the offence which is invalid under the law. {Para 9}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2420 of 2009 

Decided On: 17.12.2009

Sheetala Prasad and Ors. Vs. Sri Kant and Ors.

Hon'ble Judges/Coram:

R.V. Raveendran and J.M. Panchal, JJ.

Author: J.M. Panchal, J.

Citation:  AIR 2010 SUPREME COURT 1140, 2010 (2) SCC 190,MANU/SC/1915/2009.

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Whether revisionist should bring legal representatives of deceased complainant on record in criminal revision?

The question for determination, in fact, is whether the legal representatives of the deceased respondent must be impleaded as party respondents in the present revision petition or not? As already stated hereinabove, there is no provision in the Code providing for substituting the legal representatives of a deceased respondent in a criminal revision petition. It is also settled position in law that even in a private complaint if the accused is convicted and sentenced and he prefers an appeal or revision, the State has to take care of defending the conviction and it has to be heard in support of the conviction and sentence even if the complainant does not put in appearance to support the conviction and sentence, Nevertheless, in my view, the complainant in such a case at least must be served with a notice of the appeal/ revision. It is so because while deciding a case, the Court has to keep in mind two principles viz. (i) no person should be condemned unheard, and (ii) justice should not only be done but it must seem to have been done. Therefore, the application to and the legal representatives of the deceased respondent as such in the revision petition has to be examined against this background.

{Para 7}

8. The petitioner was tried on the basis of a private complaint in a non-cognizable offence and was finally convicted and sentenced. The impugned order provides that out of the amount of fine of Rs. 35,000/-, a sum of Rs. 25,000/- be paid to the complainant, evidently as compensation on account of the dishonour of the cheque issued by the petitioner in favour of the deceased respondent. Thus, a fiscal interest in favour of the deceased had accrued by virtue of the impugned order itself. After his death and in the event of maintaining the impugned order, his legal representatives will be entitled to the amount ordered to be refunded/paid to the deceased respondent. In case the revision petition is allowed, the interest so accrued in favour of the deceased respondent and after his death in favour of his legal representatives, shall stand extinguished. In view of this situation, I am of the view that it will be in the interest of justice in such cases that a person who is interested as a legal representative of the deceased complainant is being heard and defending the order, must be given an opportunity of being heard in the interest of justice.

9. Though the Code does not provide for impleading the legal representatives of a deceased party in a criminal revision petition, yet at the same time the Code also does not provide that the successors of the deceased complainant/respondent in a criminal case were the accused has been convicted and sentenced and financial benefit has accrued by the order of conviction and sentence in favour of the complainant or his legal representatives, they cannot be heard as party respondent in the petition, or the Court is debarred from hearing them. I am, thus, of the view that in the given circumstances of the case, the legal representatives of the deceased respondent must be substituted as party respondents in the revision petition and must be given an opportunity of being heard. This Court under its inherent powers, in my opinion, is fully competent to do so and to afford them an opportunity of being heard in the interest of justice.

 IN THE HIGH COURT OF HIMACHAL PRADESH

Cri. M.P.(M) Nos. 416 and 417 of 2001 in Crl. Revn. No. 104 of 1999

Decided On: 12.10.2001

Mohinder Dutt Sharma Vs. Bhagat Ram and Ors.

Hon'ble Judges/Coram:

M.R. Verma, J.

Citation:  MANU/HP/0033/2001,– 2002 Cri L J 529 (HP).

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Whether high court can entertain criminal revision at the instance of third party?

So far as the first question as to the maintainability of the revision at the instance of the complainant is concerned, we think the said argument has only to be noted to be rejected. Under the provisions of Code of Criminal Procedure, 1973, the court has suo moto power of revision, if that be so, the question of the same being invoked at the instance of an outsider would not make any difference because ultimately it is the power of revision which is already vested with the High Court statutorily that is being exercised by the High Court. Therefore, whether the same is done by itself or at the instance of a third party will not affect such power of the High Court. In this regard, we may note the following judgment of this Court in the case of Nadir Khan v. The State (Delhi Administration),   MANU/SC/0176/1975 : 1976CriLJ1721 . {Para 6}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 1682, 1683, 1684 and 1685 of 1996

Decided On: 18.09.2003

K. Pandurangan and Ors. Vs. S.S.R. Velusamy and Ors.

Hon'ble Judges/Coram:

N. Santosh Hegde and B.P. Singh, JJ.

Author: N. Santosh Hegde, J.

Citation: (2003) 8 SCC 625,MANU/SC/0736/2003.

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Allahabad HC: Complainant of FIR must be heard in revision filed by accused.

 In Babloo Pasi's case (Supra) Babloo Pasi was the appellant of the case and the accused was respondent No. 2. In para 11 of the said judgment the Apex Court has said that in its opinion having regard to the nature of controversy before the High Court and the scheme of the relevant statutory provisions whereunder the High Court was exercising its jurisdiction, the 'fairness in action' did demand that the complainant (appellant of the said case) should have been given an opportunity of hearing in the revision preferred by the accused (respondent No. 2 of the said case). It is true that the Apex Court has further said in the following lines that the appellant of the said case was impleaded as party respondent, but this by itself does not mean that if he did not appear before the trial Court he should not be heard by the High Court when the revision was argued before it. From bare perusal of Para 11 of Babloo Pasi's case it is evident that complaint of such type of cases should be heard in revision under Section 53 of the Act. On the basis of the above discussions I am of the view that in such type of cases the complainant of the FIR is definitely an aggrieved person and must be given an opportunity of hearing before passing an order in such type of revisions. 

{Para 8}

 IN THE HIGH COURT OF ALLAHABAD

Criminal Revision No. 2211 of 2012

Decided On: 16.01.2013

Nihal Vs. State of U.P.

Hon'ble Judges/Coram:

Ashok Srivastava, J.

Citation: 2013 (80) ACC 867 (All), MANU/UP/0237/2013.

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Whether Magistrate can dismiss the complaint for dishonour of cheque after recording of evidence of complainant?

 In the instant case, we notice that there is a specific

averment in the Special Leave Petition(s) that the appellant had

led its evidence in the case and thereafter had moved an

application under Section 311 of the Code to summon and

examine further witnesses. In Paragraph 5(u), it is stated that

the trial court as well as the High Court did not take into

consideration that the complainant’s cross-examination had been

over in Complaint Case Nos.621742/16, 621743/16 and

621744/16, and no cross-examination was sought in other cases.

Rather, CW-1’s cross-examination in the above three complaint

cases was adopted. There appears no specific denial of the

aforesaid factual position. However, we find that neither the High Court nor the learned Magistrate has taken notice of the aforesaid position. Both the courts below thus failed to consider whether in the facts of the case under the proviso to sub-section (1) of Section 256, the court could proceed with the matter after

dispensing with the attendance of the complainant. Further, if the complainant had not appeared to press the application under Section 311 of the Code, the learned Magistrate could have rejected the application under Section 311 of the Code and proceeded with the case on basis of the available evidence. We are, therefore, of the considered view that the learned Magistrate was not justified in straight away dismissing the complaint(s) and ordering acquittal of the accused on mere nonappearance

of the complainant. The High Court too failed to take notice of the aforesaid aspects. Thus, the orders impugned are liable to be set aside. {Para 13}

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 657-664 OF 2023

M/s. BLS INFRASTRUCTURE LIMITED Vs M/s. RAJWANT SINGH & OTHERS 

Author: MANOJ MISRA, J.

Dated: March 01, 2023

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Whether the court should acquit public servant in the case of Prevention of Corruption Act if the Complainant Dies or Turns Hostile?

 (f) In the event the complainant turns ‘hostile’, or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.

 76. Accordingly, the question referred for consideration of this Constitution Bench is answered as under:

In the absence of evidence of the complainant (direct/primary, oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution.

 In the Supreme Court of India

(Before S. Abdul Nazeer, B.R. Gavai, A.S. Bopanna, V. Ramasubramanian and B.V. Nagarathna, JJ.)

Criminal Appeal No. 1669 of 2009

Neeraj Dutta Vs  State (Govt. of N.C.T. of Delhi) 

Decided on December 15, 2022

Citation: 2022 SCC OnLine SC 1724

Read full Judgment here: Click here

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Whether court can issue process in cheque dishonour case only on the basis of affidavit of complainant?

Recently, Constitution Bench of Hon'ble Supreme Court In

Re.: Expeditious Trial of Cases Under Section 138 N.I.

Act 1881 reported in [AIR 2021 Supreme Court 1957] in

paragraph-12 observed as under:-

"12. Another point that has been brought to our notice

relates to the interpretation of Section 202 (2) which

stipulates that the Magistrate shall take evidence of the

witness on oath in an inquiry conducted under Section 202

(1) for the purpose of issuance of process. Section 145 of

the Act provides that the evidence of the complainant may

be given by him on affidavit, which shall be read in

evidence in any inquiry, trial or other proceeding,

notwithstanding anything contained in the Code. Section

145 (2) of the Act enables the court to summon and

examine any person giving evidence on affidavit as to the

facts contained therein, on an application of the

prosecution or the accused. It is contended by the learned

Amici Curiae that though there is no specific provision

permitting the examination of witnesses on affidavit,

Section 145 permits the complainant to be examined by

way of an affidavit for the purpose of inquiry under Section

202. He suggested that Section 202 (2) should be read

along with Section 145 and in respect of complaints under

Section 138, the examination of witnesses also should be

permitted on affidavit. Only in exceptional cases, the

Magistrate may examine the witnesses personally. Section

145 of the Act is an exception to Section 202 in respect of

examination of the complainant by way of an affidavit.

There is no specific provision in relation to examination of

the witnesses also on affidavit in Section 145. It becomes

clear that Section 145 had been inserted in the Act, with

effect from the year 2003, with the laudable object of

speeding up trials in complaints filed under Section 138. If

the evidence of the complainant may be given by him on

affidavit, there is no reason for insisting on the evidence of

the witnesses to be taken on oath. On a holistic reading of

Section 145 along with Section 202, we hold that Section

202 (2) of the Code is inapplicable to complaints under

Section 138 in respect of examination of witnesses on

oath. The evidence of witnesses on behalf of the

complainant shall be permitted on affidavit. If the

Magistrate holds an inquiry himself, it is not compulsory

that he should examine witnesses. In suitable cases, the

Magistrate can examine documents for satisfaction as to

the sufficiency of grounds for proceeding under Section

202."

Thus, it is clear from the above judgement of Hon'ble

Supreme Court that even on the basis of affidavit filed on

behalf of the complainant, an accused can be summoned

under Section 138 Negotiable Instruments Act and there is

no need to record statements under Sections 200 and 202

Cr.P.C.

 ALLAHABAD HIGH COURT

Case :- APPLICATION U/S 482 No. - 14051 of 2008

Applicant :- Virendra Kumar Sharma

Opposite Party :- State of U.P. and Another

Hon'ble Sameer Jain,J.

Order Date :- 8.12.2021

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Whether Session court can permit the addition of complainant in criminal revision as per 401(2) Cr.P.C?

It is the grievance of the learned senior counsel for the petitionersvide the impugned order the learned Revisional Court had directed the petitioner herein to file an amended memo of parties by impleading the complainant defacto as respondent No.2, whereas the complainant has no role to play before learned Revisional Court and its only the learned Public Prosecutor for the State, who has to take realm of the case before learned Session’s Court. It is argued per sub-section 2 to Section 401 Cr P C no order shall be passed to the prejudice of the accused or other person unless he has an liberty of being heard either personally or through pleader. It is argued the words other person refers to person akin to the accused and it does not include the complainant and hence the learned Revisional Court erred to make the complainant defacto as respondent No.2.

 Section 401(2) and 403 CrP C are as under:-

“401. High Court' s Powers of revisions.

(1) xxxx

(2) No order under this section shall be made to the

prejudice of the accused or other person unless he has had

an opportunity of being heard either personally or by

pleader in his own defence.

(3) to (5) xxxx

403. Option of Court to hear parties. Save as otherwise

expressly provided by this Code, no party has any right to

be heard either personally or by pleader before any Court

exercising its powers of revision; but the Court may, if it

thinks fit, when exercising such powers, hear any party

either personally or by pleader.

8. A bare perusal of Section 401(2) Cr P C would show other personmust be akin to an accused who can participate in the proceedings. The phrase in his own defence in clause 2 of Section 401 Cr P C strengthens this belief. The complainant is never heard in his defence and hence the word „other person‟ referred to in Section 401 Cr P C is a person akin or  similarly placed to an accused. Section 403 Cr P C is also to be read in consonance with Section 401 Cr P C as it starts with the word „otherwise expressly provided by this Code‟.

Thus as is seen above „other person‟ does not include a

complainant in revision. This is a State prosecution and at the highest the complainant can be a witness to the proceedings and can participate through learned APP for the Sate but cannot be a party to the revision petition. The judgments relied upon by the respondents did not consider A.K.Subhaiah‟s (supra). I agree with the petitioner if we allow the complainant to participate before the Session’s it shall change the entire nature of the proceedings from criminal to civil and hence shall hamper independence of prosecution. The complainant can at best assist the prosecution, though prosecution in such a case has to make an independent call.

15. The law laid down in A.K.Subbaiah & Ors (supra) hold good even for today. The judgments referred to by the respondent No.2 are mostly under Section 482 Cr.P.C. wherein the High Court may even implead the complainant in revision. The power under Section 482 Cr.P.C. is quite different than the one under Section 401 Cr.P.C. as nothing limits such power of the Court under Section 482 Cr.P.C. and it is far wider than under Section 401(2) Cr.P.C. but Session’s Court does not have such parallel power and it cannot implead anyone, except those mentioned under Section 401(2) Cr.P.C.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

Decided on : 06th August, 2021

+ CRL.M.C. 1163/2021 & CRL.M.A.5948/2021

VIPUL GUPTA; and S. P.GUPTA  Vs STATE 

CORAM:

HON'BLE MR. JUSTICE YOGESH KHANNA

YOGESH KHANNA, J. (Through Video Conferencing)

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Whether Will trial be vitiated if the complainant/informant is investigating officer?

  Coming to his second argument viz the complainant and the Investigating Agency cannot be same, I may refer to Mukesh Singh vs State (NCT) of Delhi 2020 (10) SCC 120 wherein it was held:-

“8. The question which is referred to the larger Bench is, whether in case the investigation is conducted by the informant/police officer who himself is the complainant, the trial is vitiated and in such a situation, the accused is entitled to acquittal? xxxx

10.5. Therefore, as such, the NDPS Act does not specifically bar the informant/complainant to be an investigator and officer in charge of a police station for the 

investigation of the offences under the NDPS Act. On the contrary, it permits, as observed hereinabove. To take a contrary view would be amending Section 53 and the relevant provisions of the NDPS Act and/or adding something which is not there, which is not permissible. 13.2. (II) In a case where the informant himself is the investigator, by that itself cannot be said that the investigation is vitiated on the ground of bias or the like factor. The question of bias or prejudice would depend upon the facts and circumstances of each case. Therefore, merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case-to-case basis. A contrary decision of this Court in Mohan Lal v. State of Punjab [Mohan Lal v. State of Punjab, (2018) 17 SCC 627 : (2019) 4 SCC (Cri) 215] and any other decision taking a contrary view that the informant cannot be the investigator and in such a case the accused is entitled to acquittal are not good law and they are specifically overruled.”{Para 11}

 IN THE HIGH COURT OF DELHI AT NEW DELHI 

Decided on : 30th July, 2021 

 BAIL APPLN. 112/2021 and CRL.M.(BAIL) 81/2021; 

BIMAL KUMAR JAIN and NARESH JAIN Vs DIRECTORATE OF ENFORCEMENT 

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Whether Magistrate should examine Complainant Before Ordering Investigation Under Section 156(3) CrPC?

The legal position has been summarized in thus: ―10. The position is thus clear. Any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer.

could take further steps contemplated in Chapter XII of the Code only thereafter.‖

20 In Anju Chaudhary v. State of Uttar Pradesh6, Justice Swatanter Kumar for the Bench noted that Section 156 primarily deals with the powers of the police officer to investigate cognizable cases. While passing an order under Section 156(3), the Magistrate does not take cognizance. The order of the Magistrate is in the nature of ―a pre-emptory reminder or intimation to the police‖ to exercise their primary duty and power of investigation. The court held that the power of the Magistrate under Section 156(3) is not affected by the provisions of Section 202 and observed: ―40. Still another situation that can possibly arise is that the Magistrate is competent to treat even a complaint termed as an application and pass orders under Section 156(3), but where it takes cognizance, there it would have to be treated as a regular complaint to be tried in accordance with the provisions of Section 200 onwards falling under Chapter XV of the Code.

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No. 680 of 2021

@ SLP (Crl) No 3155 of 2018

M/s Supreme Bhiwandi Wada Vs The State of Maharashtra 

Author: Dr Dhananjaya Y Chandrachud, J

Dated: July 26, 2021

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Whether court can permit the power of attorney holder of legal heirs of the deceased complainant to apply to continue prosecution?

Likewise, under Section 302 of the Code, a person, who is entitled to continue the prosecution, is required to make an application himself but under both the provisions aforesaid, instead of taking steps personally, a party can be represented through a pleader. Power of attorney holder can represent the concerned party under both the provisions of the Code, in case permission for such representation is sought from the court by the concerned person and granted by it. But where no such permission is sought by the concerned person, meaning thereby, in the case of Section 205 of the Code  an accused and in the case of Section 302 of the Code  a party who has right to continue the prosecution, power of attorney holder cannot be allowed to represent the concerned person in the proceeding.

In the present case, neither heirs of the complainant filed petition under Section 302 of the Code to continue the prosecution nor any permission was sought by them from the competent court that they should be allowed to continue the prosecution through their power of attorney holders, rather the prayer was made by the power of attorney holders, which is not permissible under law. This being the position, we are of the view that the trial court was not justified in allowing the petitions under Section 302 of the Code and the High Court has committed an error in confirming the said order which is liable to be set aside and petitions under Section 302 of the Code are fit to be dismissed giving liberty to the heirs either to make application themselves before the court concerned to continue the prosecution or apply to the court to grant permission to them to authorize the power of attorney holders to continue the prosecution on their behalf.

 Supreme Court of India

Jimmy Jahangir Madan vs Bolly Cariyappa Hindley (Dead) By ... on 4 November, 2004

Author: B.N.Agrawal

Bench: B.N.Agrawal, H.K.Sema

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