Bombay HC guidelines for investigation and appreciation of evidence for the offence under S 498A of IPC

 The informant is contending that after three months of marriage all the accused persons started taunting her on the ground that she is from village and is unable to cook food. She has specifically stated that on the trifle domestic grounds she was mentally and physically harassed, however, she has not given the details except the said taunting. All the seven persons could not have given taunts at one and the same time. Further, in the entire FIR she has not stated as to why the married sister-in-law and her husband were residing in house of her husband i.e. applicant No.1. In the normal course, the married sister-in-law and her husband would reside at the place where the husband of the sister-in-law is residing. If we consider the address given by the applicants, then of course applicant Nos.5 and 6 are also residing at Aurangabad, but their house is different and in a different locality than the house of applicant Nos.1 to 4. Same is as regards applicant No.7, who is the cousin brother of applicant No.1. Informant has thereafter stated that her husband and parents-in-law were asking her to bring amount of Rs.5,00,000/- for getting permanency in employment of husband with Nagar Parishad. She told them that her parents are poor and unable to give the amount. Then applicant Nos.1 to 3 responded that if she is unable to bring the amount, then she should not come for cohabitation and on that count, she was harassed mentally and physically time and again. Again the acts amounting to "physical and mental cruelty" are not given. Statement that unless she brings the amount she should not come for cohabitation without any action will not amount to mental and physical harassment. When the alleged demand is made has also not approximately stated and for how much period the said demand persisted has not been stated. She then states that she gave information about the treatment given to her and her father who had in turn given that information to their relative. All of them had come and tried to persuade accused persons, but there was no settlement. According to the informant since that date the accused persons intensified harassment. Again the details are lacking. Then she directly states that when she was in her parental house, applicant No.1 went there and abused her. Thereafter, the other accused persons i.e. applicant Nos.4 to 7 instigated applicant Nos.1 to 3 for not to allow cohabitation of the informant with applicant No.1. Threat was given that if she is unable to bring the money then she will not be allowed to stay with them and she would be killed. All these allegations are vague. When that statement was made has also not been stated. As earlier stated it is to be noted that she got married on 24.06.2022 and FIR has been lodged on 24.07.2023. That means the married life of which narration has been given is of just more than one year. Out of that three months she was treated properly and when she returned to the parental home has not been stated. Statements of the witnesses are on the same line. All the witnesses have also kept those facts vague as they are. Neither the details about the alleged cruelty have been given, nor the date on which there was a meeting and when the informant came to the parental home has been stated. The statements of the witnesses are copy paste and it appears that the investigating officer has made maximum use of the computer, of course which is not for good reasons. There cannot be statement in the form of copy paste paragraph to paragraph without difference in punctuations and fonts also. Unnecessarily energy has been wasted in drawing panchanama of the house of applicant No.1 and even photographs have been taken on the mobile and then certificate under Section 65-B of Indian Evidence Act has been given. {Para 4}

5. We are constrained to observe that police officials are not investigating such cases in the manner they are required to. There is no sensitivity that is shown, nor proper procedure is adopted. Statements in the nature of copy paste is the example of non application of mind by the investigating officer (as he is supposed to apply his mind even while taking statement under Section 161 of the Code of Criminal Procedure) and insensitivity. They do not make inquiry to the neighbours of the matrimonial home. Statements are always recorded of the witnesses who are either relatives of the wife or neighbours where her parents are residing. Of course the lady would disclose the treatment that is given to her parents and the relatives at the first place and their statements would then be important, however, the other possibilities involved and any other piece of evidence if available is not at all considered by the investigating officers. It is not even necessary that the charge-sheet should be filed against all those persons who are named in the FIR as well as statements of witnesses. If those accused are residing at far away place, then how that accused would have been involved in the commission of the offence should be considered by the investigating officer. It is in the wisdom of the investing officer to file charge-sheet against those accused only against whom there is strong evidence. Unnecessary harassment and false implication should be avoided.

6. In the present case, the FIR is as vague as possible and it is not disclosing the basic ingredients of the offences punishable under Sections 498-A, 323, 504, 506 read with Section 34 of Indian Penal Code and, therefore, this is a fit case for exercising powers under Section 482 of the Code of Criminal Procedure to avoid the unjust trial against the applicants.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Application No. 3263 of 2023

Decided On: 10.01.2025

Mohd  Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

Vibha Kankanwadi and R.W. Joshi, JJ.

Author: Vibha Kankanwadi, J.

Citation: 2025:BHC-AUG:594-DB, MANU/MH/3509/2025

Print Page

Anticipatory Bail, Public Interest, and Corruption: Supreme Court’s New Threshold in P Krishna Mohan Reddy v. State of Andhra Pradesh

 Introduction

The Supreme Court’s recent judgment in P Krishna Mohan Reddy v. State of Andhra Pradesh (SLP (Crl.) Nos. 7532-34 of 2025) marks a significant development in Indian criminal jurisprudence, particularly regarding the grant of anticipatory bail in high-profile corruption cases involving public servants. The Court’s refusal to grant anticipatory bail, despite the petitioners’ cooperation with the investigation and their retired status, introduces a nuanced legal principle prioritizing public interest and the integrity of ongoing investigations over individual liberty in cases of grave economic offences.

Background and Context

The petitioners, former high-ranking public officials, sought anticipatory bail after being implicated in a massive alleged scam concerning the allocation of liquor brands in Andhra Pradesh. The case, registered under various sections of the Indian Penal Code and the Prevention of Corruption Act, revolves around allegations of favoritism, manipulation of procurement processes, and kickbacks amounting to over Rs. 3,000 crores.

Print Page

Bombay HC: FIR Won't Stand Quashed If Revision Court Sets Aside Magistrate's Order For Police Investigation Into Cognizable Offence

To equip the revisional court to exercise the discretion in a correct manner, it may be advantageous for the revisional court to ascertain whether, pursuant to the direction of the Magistrate, FIR has, in fact, been registered. Two situations are conceivable : pre and post-registration of FIR pursuant to the order by the Magistrate. {Para 125}

126. (a) If the FIR is yet not registered, an interim order passed by the revisional court, staying effect and operation of the impugned order Under Section 156(3), will have full play and the investigating agency cannot proceed to register the FIR and enter into investigation lest the order passed by the revisional court would be denuded of the meaning and content.

(b) Such an interim order before the registration of the FIR will operate with full force and vigor, irrespective of the nature of the infirmity in the impugned order which weighed with the revisional court to stay such an order.

(c) On the other hand, if the FIR has already been registered, before the revisional court passes an interim order, then the nature of the infirmity in the impugned order may become relevant.

(d) If the revisional court finds that the impugned order suffers from jurisdictional error, (of the nature referred to in Para Nos. 119, 120 and 122 above), in our considered view, the revisional court must be construed to have the power to stay further proceedings pursuant to the registration of the FIR if the matter is still at the stage of investigation.

(e) We hasten to add that while passing such an order of stay of the proceedings at the stage of investigation, the revisional Court ought to record reasons which weighed with the court to hold that there appears a jurisdictional error in passing an order Under Section 156(3) of the Code and thereupon, in terms, direct that the further proceedings be stayed.

(f) However, where the investigation culminates into lodging of the chargesheet and/or cognizance has been taken by the jurisdictional court, the interim order or final order passed by the revisional court setting aside the order passed by the Magistrate Under Section 156(3), will not have the effect of quashing the resultant prosecution.

127. We are unable to persuade ourselves to agree with the submission of Mr. Desai that the view that after FIR is registered revision is not an efficacious remedy, would render the statutory remedy of revision redundant. The order passed by the revisional Court setting aside a direction for investigation, even after registration of the FIR, cannot be said to be bereft of any utility. If such an order is passed before the completion of investigation, the investigating agency may take the same into account in determining the course the investigation shall culminate into. If such an order is passed, post lodging of the chargesheet, the jurisdictional Magistrate may have the benefit of the said order at the stage of taking cognizance or during the course of the inquiry, as envisaged by the Code. The High Court may also have due regard to the order of the revisional Court while considering the prayer for quashing the FIR and/or prosecution in exercise of writ or inherent jurisdiction.

128. The conspectus of aforesaid discussion is that in our view, the decision of the Division Bench in the case of Kailash Dattatraya Jadhav (supra), that in a case where on the basis of an order Under Sub-section (3) of Section 156 of the Code, FIR is registered, the remedy of revision under the Code, is not an efficacious remedy, lays down the correct position in law.

[O] ANSWERS

129. We are, therefore, inclined to answer question (i) in the negative. As regards question (ii), in our view, the revisional Court can interfere with an order Under Section 156(3) at the stage and to the extent indicated in paragraph 126 above. The Reference is answered accordingly.

 IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 2517 of 2022, 

Decided On: 10.04.2024

Arun P. Gidh and Ors. Vs. Chandraprakash Singh and Ors.

Hon'ble Judges/Coram:

Revati Mohite Dere, N.J. Jamadar and Sharmila U. Deshmukh, JJ.

Author: N.J. Jamadar, J.

Citation:  MANU/MH/2292/2024.

Print Page

Supreme Court: Suo-motto extension of limitation during lockdown will not affect the right to accused to get default bail U/S 167 of CRPC

A learned Single Judge of

Madras High Court in Crl.OP(MD)No. 5291 of 2020,

Settu versus the State, had already considered the

judgment of this Court dated 23.03.2020 passed in

Suo Moto W.P(C)No.3 of 2020 and its effect on

Section 167(2) Cr.P.C. The above was also a case of

a bail where the accused was praying for grant of

default bail due to non-submission of charge sheet.

The prosecution had raised objection and had relied

on the order of this Court dated 23.03.2020 passed

in Suo Moto W.P(C)No.3 of 2020 claiming that period

for filing charge sheet stood extended until

further orders. The submission of prosecution was

rejected by learned Single Judge. The learned

Single Judge had made following observations in

paragraphs 14 and 15:-

“14. Personal liberty is too precious a

fundamental right. Article 21 states that

no person shall be deprived of his

personal liberty except according to

procedure established by law. So long as

the language of Section 167(2) of Cr.P.C.

remains as it is, I have to necessarily

hold that denial of compulsive bail to the

petitioner herein will definitely amount

to violation of his fundamental right

under Article 21 of the Constitution of

India. The noble object of the Hon'ble

Supreme Court's direction is to ensure

that no litigant is deprived of his

valuable rights. But, if I accept the plea

of the respondent police, the direction of

the Hon'ble Supreme Court which is

intended to save and preserve rights would

result in taking away the valuable right

that had accrued to the accused herein.

15. Of course, the construction placed by

me will have no application whatsoever in

the case of certain offences under certain

special laws, such as Unlawful Activities

(Prevention) Act, 1967 and NDPS Act, 1985.

For instance, Section 36-A (4) of the NDPS

Act enables the investigation officer to

apply to the special court for extending

the period mentioned in the statute from

180 days to 1 year if it is not possible

to complete the investigation. Thus, under

certain statutes, the prosecution has a

right to apply for extension of time. In

those cases, the benefit of the direction

of the Hon'ble Supreme Court made

23.03.2020 in Suo Motu Writ Petition

(Civil) No.3 of 2020 will apply. But, in

respect of the other offences for which

Section 167 of Cr.P.C. is applicable, the

benefit of the said direction cannot be

availed.”

28. The Prayer of the accused in the said case for

grant of default bail was allowed. The claim of the

prosecution that by order of this Court dated

23.03.2020, the period for filing charge sheet

under Section 167 Cr.P.C. stands extended was

specifically rejected.

29. The view taken by learned Single Judge of

Madras High Court in Settu versus The State (supra)

that the order of this Court dated 23.03.2020

passed in Suo Moto W.P(C)No.3 of 2020 does not

extend the period for filing charge sheet under

Section 167(2) Cr.P.C. has been followed by Kerala

High Court as well as Rajasthan High Court.

30. Rajasthan High Court had occasion to consider

Section 167 as well as the order of this Court

dated 23.03.2020 passed in Suo Moto W.P(C)No.3 of

2020 and Rajasthan High Court has also come to the

same conclusion that the order of this Court dated

23.03.2020 has no consequence on the right, which

accrues to an accused on non-filing of charge sheet

within time as prescribed under Section 167 Cr.P.C.

Rajasthan High Court in S.B. Criminal Revision

Petition No. 355 of 2020 – Pankaj Vs. State decided

on 22.05.2020 has also followed the judgment of

learned Single Judge of the Madras High Court in

Settu versus The State (supra) and has held that

accused was entitled for grant of the default bail.

Uttarakhand High Court in First Bail Application

No.511 of 2020 – Vivek Sharma Vs. State of

Uttarakhand in its judgment dated 12.05.2020 has

after considering the judgment of this Court dated

23.03.2020 passed in Suo Moto W.P(C)No.3 of 2020

has taken the view that the order of this Court

does not cover police investigation. We approve the

above view taken by learned Single Judge of Madras

High court in Settu versus The State (supra) as

well as the by the Kerala High Court, Rajasthan

High Court and Uttarakhand High Court noticed

above.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEA L NO. 452 OF 2020

S.KASI  Vs  STATE THROUGH THE INSPECTOR OF POLICE

SAMAYNALLUR POLICE STATION MADURAI DISTRICT 

ASHO K BHUSHAN,J.

Dated:JUNE 19,2020

Print Page

Whether accused can seek transfer of investigation?

In assessing the contention for the transfer of the investigation to the CBI, we
have factored into the decision-making calculus the averments on the record and
submissions urged on behalf of the petitioner. We are unable to find any reason that
warrants a transfer of the investigation to the CBI. In holding thus, we have applied
the tests spelt out in the consistent line of precedent of this Court. They have not
been fulfilled. An individual under investigation has a legitimate expectation of a fair
process which accords with law. The displeasure of an accused person about the
manner in which the investigation proceeds or an unsubstantiated allegation (as in
the present case) of a conflict of interest against the police conducting the
investigation must not derail the legitimate course of law and warrant the invocation
of the extraordinary power of this Court to transfer an investigation to the CBI.
Courts assume the extraordinary jurisdiction to transfer an investigation in
exceptional situations to ensure that the sanctity of the administration of criminal
justice is preserved. While no inflexible guidelines are laid down, the notion that
such a transfer is an “extraordinary power” to be used “sparingly” and “in exceptional
circumstances” comports with the idea that routine transfers would belie not just
public confidence in the normal course of law but also render meaningless the
extraordinary situations that warrant the exercise of the power to transfer the
investigation. Having balanced and considered the material on record as well as the
averments of and submissions urged by the petitioner, we find that no case of the

nature which falls within the ambit of the tests enunciated in the precedents of this
Court has been established for the transfer of the investigation.
REPORTABLE
IN THE SUPREME COURT OF INDIA
ORIGINAL WRIT JURISDICTION
Writ Petition (Crl) No. 130 of 2020

Arnab Ranjan Goswami  Vs  Union of India

Dr Dhananjaya Y Chandrachud, J

Dated:May 19, 2020.

Print Page

Whether entire police case diary can be made available to accused?

Lastly, we may point out that in the present case, we have noticed that the entire case diary maintained by the police was made available to the accused. Under Section 172 of the Criminal Procedure Code, every police officer making an investigation has to record his proceedings in a diary setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him and a statement of the circumstances ascertained through his investigation. It is specifically provided in Sub-clause (3) of Section 172 that neither the accused nor his agents shall be entitled to call for such diaries nor shall he or they be entitled to see them merely because they are referred to by the Court, but if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of section 161 of the Cr.P.C. or the provisions of section 145 of the Evidence Act shall be complied with. The Court is empowered to call for such diaries not to use it as evidence but to use it as aid to find out anything that happened during the investigation of the crime. These provisions have been incorporated in the Code of Criminal Procedure to achieve certain specific objectives. The police officer who is conducting the investigation may come across series of information which cannot be divulged to the accused. He is bound to record such facts in the case diary. But if the entire case diary is made available to the accused, it may cause serious prejudice to others and even affect the safety and security of those who may have given statements to the police. The confidentiality is always kept in the matter of criminal investigation and it is not desirable to make available the entire case diary to the accused. In the instant case, we have noticed that the entire case diary was given to the accused and the investigating officer was extensively cross-examined on many facts which were not very much relevant for the purpose of the case. The learned Sessions Judge should have been careful in seeing that the trial of the case was conducted in accordance with the provisions of the Cr. P.C.

Supreme Court of India

Sidharth, Etc. Etc vs State Of Bihar on 30 September, 2005

Bench: K.G. Balakrishnan, B.N. Srikrishna

Citation:AIR 2005 SC 4352  

Print Page

Leading Judgment on maintenance of case diary during police investigation

On such complaint or information having been received by the Station House Officer and First Information Report is recorded and investigation is taken up, Section 172 of Cr.P.C., comes into play. Section 172 of Cr.P.C., reads as under:

"172. Diary of proceedings in investigation. - (1) Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a Diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.
[(1A). The statements of witnesses recorded during the course of investigation under section 161 shall be inserted in the case diary.]
[(1B). The diary referred to in sub-section (1) shall be a volume and duly paginated.]
(2) Any Criminal Court may send for the police diaries of the case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.
(3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of section 161 or section 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872), shall apply."

18. A plain reading of the above provision would clearly indicate that Investigating Officer who makes an investigation under Chapter XII will have to enter day by day of his proceedings relating to investigation conducted in a diary, setting forth the time at which information reached him, time at which he began and closed the investigation, the place or places visited by him and a statement of the circumstances ascertained through his investigation. In other words, it is a diary in which the proceedings of investigation by the police are recorded in a chronological order. This pertains to the particular case and is maintained continuously by the different Officers who are in charge of the investigation. Every step taken in investigation should find a place in this Diary.

19. Section 172 mandates that every police officer making an investigation shall maintain a diary, which is commonly known and called as "Case Diary". The entries in this Diary should be made with promptness, in sufficient detail, mentioning all sufficient facts, in careful chronological order. Section 172 enjoins that investigating officer has to maintain a case Diary and sub-section (2) of Section 172 empowers a Criminal Court to call for Case Diary as an aid in its enquiry or trial which is both for the vindication of the law as well as for the protection of those charged with an offence. Sub-section (3) clearly lays down that neither the accused nor his agents shall be entitled to call for such diaries nor he or they may be entitled to see them merely because they are referred to by the courts. But in case the police officer uses the entries to refresh his memory or if the court uses them for the purpose of contradicting such police officer then provisions of Section 161 or Section 145, as the case may be, of the Evidence Act would apply. The extent to which accused may cross-examine a police officer on case diary entries came up for consideration in the case of SHAMSHUL KANWAR vs. STATE OF U.P. reported in MANU/SC/0337/1995 : (1995) 4 SCC 430 and has been held to the following effect:

"CASE DIARY---Sec. 172---use of right of accused regarding use of case diary-extent of---held, accused gets right to cross-examine the police officer with reference to entries in case diary when the same is used by the police officer to refresh his memory or when the court uses it for the purpose of contracting the police officer-such right of accused is subject to the limitations of S. 145 and 161 of Evidence Act. Police officer cannot compelled to look into the case diary for refreshing his memory-failure of the police officer to keep a diary does not render his evidence inadmissible-entries of police diary are neither substantive nor corroborating evidence-they cannot be used by or against any other witness-evidence.
The right of accused to cross-examine the police officer with reference to the entries in the general diary is very much limited in extent and even that limited scope arises only when the court uses the entries to contradict the police officer or when police officer uses it for refreshing his memory and that again is subject to the limitations of section 145 and 161 of evidence act and for that limited purpose only the accused in the discretion of the court may be permitted to peruse the particular entry and in case the court does not use such entries for the purpose of contradicting the police officer or if the police officer does not use the same for refreshing his memory, then the question of accused getting any right to use the entries even to that limited extent does not arise."

The following shall not be incorporated in the Case Diaries:

(1) "Opinion of Investigating Officer, opinion of the Supervisory Officers and Law Officers.
(2) Any conflict of opinion between I.O., Law Officers, SP, DIG and Head Office.
(3) Recommendations made in concluding report of the I.O., comments of Law Officer(s) and Supervisory Officers.
(4) Any other facts/ circumstances not relating to investigation of the case."

20. Sub-sections (1A) and (1B) of Section 172 of Cr.P.C., came to be inserted by Act 5 of 2009. Prefatory note or in other words, statement of objects and reasons for bringing in such an amendment indicates that Law Commission of India had undertaken a comprehensive review of the Code of Criminal Procedure and in its 154th Report recommendation have been made particularly those relating to provisions concerning arrest, custody and remand, procedure for summons and warrant cases, compounding of offences, victimology, special protection in respect of women and inquiry and trial of persons of unsound mind. This amongst other reasons indicated in the statement of objects and reasons have persuaded the Parliament to amend Section 172 and by Act 5 of 2009, sub-sections (1A) and (1B) of Section 172 of Cr.P.C., came to be inserted. A bare reading of sub-section (1A) would indicate it casts a duty on the investigating officer to record all the statement of the witnesses in a case Diary. Sub-section (1B) makes obligatory for the investigating officer to keep the case Diary in a bound volume and duly paginated. These amendments are salutary in nature and enacted to check interpolation in a case Diary. The proper maintenance of a Case Diary under Section 172 is intended to safeguard not only the accused, but to insulate the investigating agency itself from unjustifying attacks. Failure on the part of the investigating officer not observing the mandate of Section 172 Cr.P.C. would amount to serious lapse and it results in diminishing the value and credibility of such investigation that may be undertaken. The entries in a Case Diary should be made at its appropriate place indicating the correct date on which it was actually made. The investigating officer cannot make late entries in the Diary by way of interpolation.

21. A bare reading of the aforesaid provision in its entirety would indicate that Investigating Officer who records day to day proceedings in the diary which is referred to as Case Diary has to insert such statement so recorded under Section 161 of Cr.P.C., in the Case Diary itself. That apart, diary so maintained by Investigating Officer has to be mandatorily paginated.

22. It would be appropriate to note the judgment of Hon'ble Apex Court in the case of SHRI BHAGWANT SINGH, VS. COMMISSIONER OF POLICE, DELHI, reported in MANU/SC/0089/1983 : 1983 CRI. L.J. 1081, wherein Hon'ble Apex Court has considered purport and intent of Case Diary vis-à-vis Section 172 of Cr.P.C. (unamended) and has observed to the following effect:

"17. The other inference which disturbs us is that the entries in the police Case Diary (set forth in the annexure to the counter-affidavit on the record) do not appear to have been entered with the scrupulous completeness and efficiency which the law requires of such a document. The haphazard maintenance of a document of that status not only does no credit to those responsible for maintaining it but defeats the very purpose for which it is required to maintained. We think it to be of the utmost importance that the entries in a police Case Diary should be made with promptness, in sufficient detail, mentioning all significant facts, in careful chronological order and with complete objectivity."

(emphasis supplied by me)

23. Thus, it can be inferred from the above discussion that when sub-sections (1A) and (1B) of Section 172 of Cr.P.C., are read in conjunction with sub-section (1) of Section 172 of Cr.P.C., the only irresistible conclusion which can be drawn is that to ensure that investigation is not lacksidal and would go on with mathematical precision so as to apprehend the accused persons and to ensure that investigation so conducted would reach its logical end and to achieve this, Case Diary has to be maintained by the Investigating Officer as indicated in Section 172 and it would protect the innocent persons being made gullible victims of unwarranted arrest or being taken into custody without referring to such arrest in the Case Diary. Hence, Legislature having considered the recommendation of Law Commission has inserted sub-sections (1A) and (1B) to Section 172 of Cr.P.C., by Act 5 of 2009 and at the cost of repetition, it has to be noticed that Case Diary referred to in sub-section (1) should not only be in volume but also should be paginated.

24. Learned High Court Government Pleader in the instant case has not been able to demonstrate before this Court that the Case Diary in the instant case has been in volume and paginated. Undisputedly, Case Diary produced in the instant case is neither in volume nor paginated and this would lead to suspicion with regard to investigation.

25. At this juncture itself, it would be apt and appropriate to refer to 'Case Diary' as referred to in 'Karnataka Police Manual'. Chapter XXXIV, Para 1368 to 1373 of Manual refers to Case Diary as prescribed under Section 172 of Cr.P.C. and it reads as under:

CASE DIARY

"1368. (i) Section 172 of the Code of Criminal Procedure requires that every Police Officer making an investigation should enter day by day his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him and a statement of the circumstances ascertained through his investigation.
(ii) Statements of witnesses examined by the police during investigation should be recorded in Form No. 137 and should be attached to the case diary for the day.
(iii) The case diary proper, which should contain the details mentioned in Sub-Order (i), should be written in Form No. 138.
(iv) There will be a docket sheet in Form No. 139 for each case file.
1369. As provided in Order 1264 copies of statements of witnesses proposed to be examined during an inquiry or trial should be made available to the accused before the inquiry or trial commences. The case diary proper may be used by the court in inquiries or trials, not as evidence but to aid such inquiry or trial. Neither the accused nor his agents shall be entitled to call for such diaries nor are they entitled to see them merely because they are referred to by the court; but, if they are used by the Police Officer who wrote them to refresh his memory or if the court uses them for the purpose of contradicting the Police Officer, then the provisions of Section 161 or 145 of the Indian Evidence Act, as the case may be, shall apply.
1370. The following instructions shall be observed in writing case diaries:-

(i) Every case diary should contain the following information:

a) date and hour of taking action.
b) date of report of the case;
c) name of the complainant or informant;
d) names of accused known, if any;
e) property lost;
f) property recovered;
g) date and last page of the previous case diary, if the case diary is not the very first one;
h) name of the deceased, if any, and
i) names of witnesses examined.

(ii) The first case diary should commence with a brief summary of the First information Report, the time of receipt of the complaint, delay, if any, in starting for the scene, the time of departure for and arrival at the scene, and description and plan of the scene.
(iii) In it will also be noted the place or places visited by the Investigating Officer, a statement of circumstances ascertained through the investigation and the date and hour of closing the investigation. Every step taken by the Investigating Officer should be mentioned as concisely as possible. Every clue obtained, even if at the time it appears likely to be of no value, houses searched with reasons for the search and the names of witnesses to the search, property recovered, its description and place where it was found, arrests, information obtained which is likely to prove of value, and methods adopted by the culprits are among the things to be mentioned in the case diary. The Investigating Officer shall separately record in Form No. 137, the statements of persons examined by him and attach them to the case diary.
(iv) In addition to copies of statements of persons recorded in Form No. 137, copies of Panchanamas and sketches of scenes of offences will be attached to the case diary.
(v) The case diary shall be invariably written up embodying the investigation done on each day. Statements of witnesses should be reduced to writing on the spot in Form No. 137. If it is not possible to reduce to writing the statement of a witness on the spot, it should be taken down in the Investigating Officer's notebook, and transcribed in the prescribed form as soon as possible on the same day the witness is examined. If, for any unavoidable reason, notes have to be taken on separate sheets of paper, these should not be destroyed after the case diary is written but preserved in the case file.
(vi) Case diaries and statements of witnesses will be written by carbon process, one copy being filed in the Police Station and the other sent to the Circle Inspector who will forward it to the Sub-Divisional Police Officer with his remarks, if any. Where case diaries are required to be forwarded to the Superintendent, an extra copy of the case diary and the statements of witnesses will be made. The Sub-Divisional Police Officer will dispose them off according to orders. Where the SHO is a Police Inspector he will forward the diaries to the Sub Divisional Police Officer and the Superintendent of Police.
(vii) The names of informers need not be entered in the diary and no court can compel an Investigating Officer to disclose the name of an informer.
(viii)(a) When a case is transferred from one Investigating Officer to another, the officer taking over the investigation shall take charge of the diary, noting therein the date of assuming charge of the investigation of the case.
(b)(i) The question, whether it is necessary to re-examine the witnesses already examined and record their statements when a subsequent investigation is taken up by another officer, is often raised. Ordinarily, such further investigation is taken up in the following instances:

(A) When a case was first investigated by a Head Constable or a Sub-Inspector and is later taken up by his superior, i.e., the Sub-Inspector or the Inspector;
(B) When an Investigating Officer is transferred in the middle of the investigation of a case and the case is taken up by his successor; and
(C) When a case is reinvestigated by the Corps of Detectives, C.I.D.

(ii) In such cases, mentioned at (A) and (B) above, it is incumbent on the succeeding Investigating Officer to re-examine all the important witnesses already examined, as the object of an investigation into a case is to ascertain the facts and circumstances. But, as regards the recording of their statements, law does not require the Investigating Officers to reduce such statements into writing. It is enough if the second Investigating Officer, re-examines witnesses with reference to their previous statements already on record and certifies to their correctness of the previous statements. If any additional facts are spoken to by any witness, the second Investigating Officer will have to record those facts and note such other facts as may be necessary in clarification of the facts and omissions in the statement already recorded. However, in a case where the statement recorded by the first Investigating Officer is bare of essential details or has omissions or defects, it is advisable for the second Investigating Officer to record the statement once again in detail.
(iii) In a case taken up by the C.O.D., the Investigating Officer of the C.O.D. is expected to re-investigate the entire case and not to continue the investigation already done by the local Police Officer. To that end, it is necessary that he should not only re-examine the witnesses but also record their statements in full. The fact that the recording of such statements may lead to multiplicity of contradictions and deviation in the statements of witnesses and may cause inconvenience to the police in furnishing copies to the accused cannot be a valid and lawful ground for evading it.
(iv) Those who, under the orders of the Investigating Officer, assist him by making any enquiries they are directed to make, do not thereby become Investigating Officers under Chapter XII of the Cr.P.C. Therefore, it is not necessary for them to write case diaries under Section 172 Cr.P.C. The result of any enquiries such officers make or action they take, pursuant to the orders or instructions of the Investigating Officer, will be communicated by the former to the latter by means of a special report. Head Constables and Constables will also make necessary entries in their notebooks. The Investigating Officer shall embody the gist of such special reports in his case diary under Sections 172 Cr.P.C.
(v) In investigation under Section 174 Cr.P.C. relating to suicide and accidental deaths, statements of witnesses examined during the investigation will be recorded separately and attached to the investigation report. No case diary need be written incorporating the statements of witnesses. But, if any important witness is examined subsequent to the investigation, a brief case diary should be written giving therein the reasons for not examining the witness during the investigation and other cognate details, and the statement of the witness recorded separately should be attached to the case diary. However, in a case where it has not been clearly established that it is a suicidal or accidental death, though the panchayatdars at the investigation have so opined, a case diary should be written discussing the evidence let in during the investigation and the arguments for treating the case as an accidental or a suicidal death. When a Head Constable holds an investigation, the Sub-Inspector should subsequently verify the investigation and such verification and the result thereof should be embodied by the Sub-Inspector in a case diary. A case diary should also be written embodying the results of the post-mortem examination, if one is conducted on the same day the post-mortem report is received.
(vi) Applications for remands should be made on the case diary form mentioning the grounds justifying the remand applied for and should be accompanied by a copy of the entries made in the case diary, up to the stage the accused is sent for remand.
(vii) case diary forms should be used for applying to Magistrates for warrants of arrest or search, proclamations and other orders connected with investigation and for forwarding search lists provided these communications refer to registered cases. Other-wise, the memorandum form will be used.
(viii) Case diaries should also be written in cases which have been referred by a Magistrate to the police for investigation under Section 202 of the Code of Criminal Procedure and in all non-cognizable cases which are required to be investigated by an order of a Magistrate under Sub-Section (2) of Section 165 of the Code of Criminal Procedure.

1371. After completion of the investigation, the Investigating Officer shall record in the concluding diary, a brief summary and the reasons which have guided his final decision in the case. If he considers that there is no case, his reasons will, of course, be fuller, than if he sends the case for trial. A copy of the charge sheet and the final report, as the case may be, will be attached to such concluding diary. A copy of such concluding case diary together with a copy of the charge sheet or final report, as the case may be, should be sent in all cases to the Superintendent through the Inspector and the Sub-Divisional Police Officer. The PI SHO will submit to the Superintendent of Police through the SDPO.
1372. In order to show the progress of trials in courts, court case diaries shall be written in Form No. 140, reporting hearings and adjournments, the witnesses examined on each hearing, how each of them fared, and other matters of interest, if any.
1373. As and when a case is decided by the court, court case diaries in Form No. 141 shall be written. A copy of such court case diary in all cases should also be sent to the Superintendent through the Inspector and Sub Divisional Police Officer. The PI SHO will submit to the SP through the SDPO."

Hence, to allay such apprehension or to ensure that guilty persons are not let off the hook, it would be necessary and incumbent upon State to specify in the Police Manual itself as to purpose and intent of sub-sections (1A) and (1B) of Section 172 of Cr.P.C., namely, statement of witnesses recorded during the course of investigation under Section 161 shall be inserted in the Case Diary and such Case Diary should be in volume and it should be paginated. Till such steps are taken by the State prescribing the manner and method in which Case Diaries are to be maintained, rigour of Section (1B) of Section 172 of Cr.P.C. would be lost when the language of Section 172 is clear, explicit and unambiguous, every Investigating Officer is required to maintain the Case Diary in volume with pagination as prescribed thereunder.

IN THE HIGH COURT OF KARNATAKA (KALABURAGI BENCH)

Criminal Petition No. 8747/2015

Decided On: 03.02.2016

 IrfanVs.State of Karnataka

Hon'ble Judges/Coram:Aravind Kumar, J.

Citation: 2016 CRLJ(NOC)328 KAR

Print Page

Whether criminal investigation can be started prior to registration of FIR?

The inquest report thus mentioned both unnatural
death case (U.D. No. 43/2000) dated 16th  June, 2000
and P.S. Case No. 99 of 16th June, 2000 under Section
302/34 of IPC and 25/27 Arms Act.   From the above,
there can be no doubt that FIR was registered before
the   inquest   report   of   dead   body   started.     The
evidence   indicates   that   information   of   death   was
received by the police station before 17.15 hours and
police officials arrived at the spot immediately and
the I.O. arrived at the spot at   17.45 PM, by that
time other police officials had already reached. The
receipt and the recording of First Information Report
is not a condition precedent for setting in motion of
a criminal investigation.  When the information that
Debol Kumar Ghosh is shot dead, police was duty bound
to start investigation.   This Court in  APREN JOSEPH
ALIAS CURRENT KUNJUKUNJU AND OTHERS VERSUS THE STATE
OF   KERALA   1973   (3)   SCC   114  stated   following   in
paragraph 11: 
“As observed by the Privy Council
in K. E. v. Khwaja, the receipt and
recording   of   information   report   by
the   police   is   not   a   condition
precedent to the setting in motion of
a criminal investigation.”

REPORTABLE
IN THE SUPREME COURT OF INDIA
    CRIMIMINAL APPELLATE JURISDICTION
    CRIMINAL APPEAL NO. 298 OF 2006
ANJAN DASGUPTA .
     V
THE STATE OF WEST BENGAL & ORS.

ASHOK BHUSHAN, J.
Dated:NOVEMBER 25, 2016.

Print Page

What is importance of Case diary in criminal investigation?

Section 172 Cr.P.C. mandates writing and maintenance of the case diary.
Sub-section (1) stipulates that police officer making investigation shall, on
each day, enter proceedings relating to investigation in the diary including
the time at which he began and closed his investigation, the place or
places visited by him and a statement of circumstances ascertained during 
his investigation, i.e. record of the proceedings. There were judgments
that hold that `record of proceedings' would not include statements
recorded under Section 161 Cr.P.C., for the reason that the said statements
are not protected, whereas the case diaries are made available to the
accused only when pre-conditions are satisfied. (See page 813 of Sarkar's
Code of Criminal Procedure, Tenth edition, 2012). Amendment made by
the Code of Criminal Procedure (Amendment) Act, 2008, w.e.f. 31st
December, 2009, inserting Sub-section (1A), therefore, assumes
significance. The Sub-section mandates that statement of witnesses
recorded during the course of investigation under Section 161 Cr.P.C.
shall be inserted in the case diary. The said Sub-section has to be read
along with Sub-section (1B) which mandates that the case diary would be
a volume and duly paginated. The phrase, "shall be a volume and duly
paginated" ensures sanctity and purity of the case diary. The word,
'inserted' used in Sub-section (1A) does not refer to physical insertion by
placing copies of the statements recorded under Section 161 Cr.P.C. in the
case diary. The expression 'inserted' mandates incorporation of the
statement itself in the case diary, rather than a mere mention that a
statement under Section 161 Cr.P.C. of a particular person has been
recorded. What the person had stated and alluded to in his statement under
Section 161 Cr.P.C. must be inserted and recorded in the case diary itself.
The case diary has to be a volume and paginated, and cannot be a loose leaf
diary from which papers can be removed, changed or interpolated.
This is the unambiguous legislative mandate of Sub-section (1B). The
aforesaid legislative amendments, w.e.f. 31' December, 2009, reveal the
importance and relevance of the case diary as they assure solemnity and
inviolability of the record as to the manner in which the investigation was
conducted. The court can ascertain that the case as projected is true and
false or misleading statements are not made. It reflects the line of 
investigation. In Bhagwant Singh versus Commr. of Police (1983) 3 SCC
344, importance of recording entries in the case diary with promptness
and sufficient details mentioning of relevant facts in chronological order
with complete objectivity is highlighted. In Khatri & Ors. versus State of
Bihar (1981) 2 SCC 493), the following passage from Queen Empress
versus Mannu ILR (1897) 19 All 390 was quoted:
"The early stages of the investigation which follows on the
commission of a crime must necessarily in the vast majority of
cases be left to the police, and until the honest, the capacity, the
discretion and the judgment of the police can be thoroughly
trusted, it is necessary, for the protection of the public against
criminals, for the vindication of the law and for the protection
of those who are charged with having committed a criminal
offence that the magistrate or judge before whom the case is for
investigation or for trial should have the means of ascertaining
what was the information, true, false, or misleading which was
obtained from day to day by the police officer who was
investigating the case and what such police officer acted."
14. In Khatri (supra), the Supreme Court has observed that the case diary
cannot be used as evidence, but is an aid in the trial or inquiry. This is
for the reason because the case diary can be referred to by the Court
but the accused or his agents are not entitled to call for such diary and
are not entitled to see it except when the case diary is used by the
police officer to refresh is memory or the court uses it for
contradicting a police officer in the trial or inquiry, and provisions of
Section 145 or 161 of the Indian Evidence Act apply. The bar under
Sub-section (2) to Section 172 Cr.P.C. is a limited bar and does not
apply to civil proceedings or proceedings under Articles 32 and 226 of
the Constitution of India, particularly when the party calling for the
case diary is neither an accused nor an agent. Rejecting the contention
that the principle behind Section 172 Cr.P.C. is to exclude the report of
investigation altogether in other proceedings for it would jeopardize
secrecy of investigation, the Supreme Court affirmatively observed that
for truth to emerge, all relevant facts to the inquiry must be brought
before the court and nothing should be shut out, otherwise the opinion
formed may be distorted or incomplete, which might result in injustice. A
judgment should not be founded on partial or speculative presentation of
facts as it would affect the integrity of the judicial system and public
confidence. In exceptional cases, where weighty and compelling
competing interest requires withholding or secrecy, legislature has
provided for exceptions but the exclusion should be strictly interpreted
and not expansively construed.


IN THE HIGH COURT OF DELHI AT NEW DELHI
 CRIMINAL APPEAL NO. 485/2012
 Date of Decision:11th February, 2016
LAXMI @ LACCHO AND ANOTHER 
V
STATE NCT OF DELHI 
CORAM:
HON’BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE R.K. GAUBA

Print Page

Leading judgment on investigation and conduct of trial in respect of child victim of sexual offence

 For the sake of convenience, the directions and
guidelines laid down by the Apex Court and this court so far as
case involving a child victim or child witness which are required
to be mandatorily and urgently implemented are culled out as
follows:-
I. POLICE
(i). On a complaint of a cognisable offence involving a child victim being made, concerned police officer shall record the complaint promptly and accurately.(Ref: Court On Its Own Motion vs. State & Anr.)
(ii). Upon receipt of a complaint or registration of FIR for any of the aforesaid offences, immediate steps shall be taken to associate a scientist from Forensic Science Laboratory or some other Laboratory or department in the investigations. The Investigating Officer shall conduct investigations on the points suggested by him also under his guidance and advice.(Ref : Mahender Singh Chhabra vs. State of N.C.T. Of Delhi & Ors.)
(iii). The investigation of the case shall be referred to an officer not below the rank of Sub- Inspector, preferably a lady officer, sensitized by imparting appropriate training to deal with child victims of sexual crime.(Ref: Court On Its Own Motion vs. State & Anr.)
(iv). The statement of the victim shall be recorded verbatim.(Ref: Court On Its Own Motion vs. State & Anr.)
(v). The officer recording the statement of the child victim should not be in police uniform.(Ref: Court On Its Own Motion vs. State & Anr.)
(vi). The statement of the child victim shall be recorded at the residence of the victim or at any other place where the victim can make a
statement freely without fear.(Ref: Court On Its Own Motion vs. State & Anr.)
(vii). The statement should be recorded
promptly without any loss of time.(Ref: Court On Its Own Motion vs. State & Anr.)
(viii). The parents of the child or any other person in whom the child reposes trust and confidence will be allowed to remain present.(Ref: Court On Its Own Motion vs. State & Anr.)
(ix). The Investigating Officer to ensure that at no point should the child victim come in contact with the accused.(Ref: Court On Its Own Motion vs. State & Anr.)
(x) The child victim shall not be kept in the police station overnight on any pretext, whatsoever, including medical examination.(Ref: Court On Its Own Motion vs. State & Anr.)
(xi). The Investigating Officer recording the statement of the child victim shall ensure that the victim is made comfortable before
proceeding to record the statement and that the statement carries accurate narration of the incident covering all relevant aspects of the case.(Ref: Court On Its Own Motion vs. State &
Anr.)
(xii). In the event the Investigating Officer should so feel the necessity, he may take the assistance of a psychiatrist.(Ref: Court On Its Own Motion vs. State & Anr.)
(xiii). The Investigating Officer shall ensure that the child victim is medically examined at the earliest preferably within twenty four hours (in accordance with Section 164A Cr.P.C) at the nearest government hospital or hospital
recognized by the government.(Ref: Court On Its Own Motion vs. State & Anr.)
(xiv). The Investigating Officer shall ensure that the investigating team visits the site of the crime at the earliest to secure and collect all incriminating evidence available.(Ref: Court On Its Own Motion vs. State & Anr.)
(xv). The Investigating Officer shall promptly refer for forensic examination clothings and articles necessary to be examined, to the forensic laboratory which shall deal with such cases on priority basis to make its report available at an early date.(Ref: Court On Its Own Motion vs. State & Anr.)
(xvi). The investigation of the cases involving sexually abused child may be investigated on a priority basis and completed preferably within ninety days of the registration of the case. The investigation shall be periodically supervised by senior officer/s.(Ref: Court On Its Own Motion vs. State & Anr.)
(xvii). The Investigating Officer shall ensure that the identity of the child victim is protected from publicity.(Ref: Court On Its Own Motion vs. State & Anr.)
(xviii). To ensure that the complainant or victim of crime does not remain in dark about the investigations regarding his complaint/FIR, the complainant or victim shall be kept informed about the progress of investigations. In case the complainant gives anything in writing and requests the I.O., for investigations on any
particular aspect of the matter, the same shall be adverted to by the I.O. Proper entries shall be made by I.O. in case diaries in regard to the steps taken on the basis of the request made by the complainant. The complainant, however, shall not be entitled to know the confidential matters, if any, the disclosure of which may jeopardize the investigations.(Ref : Mahender Singh Chhabra vs. State of N.C.T. Of Delhi & Ors.)
(xix). Whenever the SDM/Magistrate is requested to record a dying declaration, video recording also shall be done with a view to obviate subsequent objections to the genuineness of the dying declaration.(Ref : Mahender Singh Chhabra vs. State of N.C.T. Of Delhi & Ors.)
(xx). The investigations for the aforesaid offences shall be personally supervised by the ACP of the area. The concerned DCP shall also undertake fortnightly review thereof. (Ref : Mahender Singh Chhabra vs. State of N.C.T. Of Delhi & Ors.)
(xxi). The material prosecution witnesses cited in any of the aforesaid offences shall be ensured safety and protection by the SHO concerned, who shall personally attend to their complaints, if any. (Ref : Mahender Singh Chhabra vs. State of N.C.T. Of Delhi & Ors.)
(xxii). Wherever possible, the IO shall ensure that the statement of the child victim is also video recorded.(Ref: Court On Its Own Motion vs. State & Anr.)
II RECORDING OF STATEMENT BEFORE MAGISTRATE
(i). The statement of the child victim shall be recorded promptly and at the earliest by the concerned Magistrate and any adjournment shall be avoided and in case the same is unavoidable, reasons to be recorded in
writing.(Ref: Court On Its Own Motion vs. State & Anr.)
(ii). In the event of the child victim being in the hospital, the concerned Magistrate shall record the statement of the victim in the hospital.(Ref: Court On Its Own Motion vs. State & Anr.)
(iii). To create a child friendly environment separate rooms be provided within the Court precincts where the statement of the child victim can be recorded.(Ref: Court On Its Own Motion vs. State & Anr.)
(iv). The child victim shall not be separated from his/her parents/guardians nor taken out from his/her environment on the ground of
"Ascertaining voluntary nature of statement" unless the parents/guardian is reported to be abusive or the Magistrate thinks it appropriate in the interest of justice.(Ref: Court On Its Own Motion vs. State & Anr.)
(v). Wherever possible, the IO shall ensure that the statement of the child victim is also video recorded.(Ref: Court On Its Own Motion vs. State & Anr.)
(vi). No Court shall detain a child in an institution meant for adults.(Ref: Court On Its Own Motion vs. State & Anr.)
III MEDICAL EXAMINATION
(i) Orientation be given to the Doctors, who prepare MLCs or conduct post mortems to
ensure that the MLCs as well as post mortem reports are up to the mark and stand judicial scrutiny in Courts.(Ref : Mahender Singh Chhabra vs. State of N.C.T. Of Delhi & Ors.)
(ii). While conducting medical examination, child victim should be first made comfortable as it is difficult to make her understand as to why she is being subjected to a medical
examination.
(iii). In case of a girl child victim the medical examination shall be conducted preferably by a female doctor.(Ref: Court On Its Own Motion vs.
State & Anr.)
(iv). In so far as it may be practical, psychiatrist help be made available to the child victim before medical examination at the hospital itself.(Ref: Court On Its Own Motion vs. State & Anr.)
(v). The report should be prepared expeditiously and signed by the doctor
conducting the examination and a copy of medical report be provided to the parents/guardian of the child victim.(Ref: Court On Its Own Motion vs. State & Anr.)
(vi). In the event results of examination are likely to be delayed, the same should be clearly mentioned in the medical report.(Ref: Court On Its Own Motion vs. State & Anr.)
(vii). The parents/guardian/person in whom child have trust should be allowed to be present during the medical examination.(Ref: Court On Its Own Motion vs. State & Anr.)
(viii). Emergency medical treatment wherever necessary should be provided to the child victim.(Ref: Court On Its Own Motion vs. State & Anr.)
(ix). The child victim shall be afforded prophylactic medical treatment against STDs.(Ref: Court On Its Own Motion vs. State & Anr.)
(x). In the event the child victim is brought to a private/nursing home, the child shall be afforded immediate medical attention and the matter be reported to the nearest police station.(Ref: Court On Its Own Motion vs. State & Anr.)
IV COURT
(i) To create a child friendly environment separate rooms be provided within the Court precincts where the statement of the child
victim can be recorded.(Ref : Court On Its Own Motion vs. State & Anr)
(ii) In case of any disability of the victim or witness involving or impairing communication skills, assistance of an independent person who is in a position to relate to and communicate with such disability requires to be taken.
(iii) The trials into allegations of commission of rape must invariably be "in camera" . No request in this behalf is necessary. (Ref : State of Punjab vs. Gurmit Singh)(iv) The Committal Court shall commit such cases to the Court of Sessions preferably within fifteen days after the filing of the chargesheet. (Ref: (2007 (4) JCC 2680 Court On Its Own Motion vs. State & Anr.)
(v). The child witness should be permitted to testify from a place in the courtroom which is other than the one normally reserved for other witnesses.
(vi) To minimise the trauma of a child victim or witness the testimony may be recorded through video conferencing or by way of a close circuit television. If this is not possible, a screen or some arrangement be made so that the victims or the child witness do not have to undergo seeing the body or face of the accused. The screen which should be used for the
examination of the child witness or a victim should be effective and installed in such manner that the witness is visible to the trial judge to notice the demeanour of the witness. Single visibility mirrors may be utilised which while protecting the sensibilities of the child, shall ensure that the defendant's right to cross examination is not impaired. (Ref : Sakshi vs UOI).(vii) Competency of the child witness should be evaluated and order be recorded thereon.
(viii) The trial court is required to be also satisfied and ought to record its satisfaction
that the child witness understands the
obligation to speak the truth in the witness box. In addition to the above, the court is required to be satisfied about the mental capacity of the child at the time of the occurrence concerning which he or she is to testify as well as an ability to receive an accurate impression thereof. The court must be satisfied that the child witness has sufficient memory to retain an independent recollection of the occurrence and a capacity to express in words or otherwise his or her memory of the same. The court has to be
satisfied that the child witness has the capacity to understand simple questions which are put to it about the occurrence.
There can be no manner of doubt that
record of the evidence of the child witness must contain such satisfaction of the court.
(ix) As far as possible avoid disclosing the name of the prosecutrix in the court orders to save further embarrassment to the victim of the crime; anonymity of the victim of the crime must be maintained as far as possible
throughout.
(x) The statement of the child victim shall be recorded promptly and at the earliest by the concerned Magistrate and any adjournment shall be avoided and in case the same is unavoidable, reasons to be recorded in writing. (Ref : Court On Its Own Motion vs. State of N.C.T. Of Delhi)
(xi) The court should be satisfied that the victim is not scared and is able to reveal what has happened to her when she is subjected to examination during the recording of her
evidence. The court must ensure that the child is not concealing portions of the evidence for the reason that she has bashful or ashamed of what has happened to her.
(xii) It should be ensured that the victim who is appearing as a witness is at ease so as to improve upon the quality of her evidence and
enable her to shed hesitancy to depose frankly so that the truth is not camouflaged on account of embarrassment at detailing the occurrence and the shame being felt by the victim.
(xiii) Questions should be put to a victim or to the child witness which are not connected to case to make him/her comfortable and to
depose without any fear or pressure;
(xiv) The trial judge may permit, if deemed desirable to have a social worker or other friendly, independent or neutral adult in whom the child has confidence to accompany the child who is testifying (Ref Sudesh Jakhu vs. K.C.J. & Ors).
This may include an expert supportive of the victim or child witness in whom the witness is able to develop confidence should be
permitted to be present and accessible to the child at all times during his/her testimony. Care should be taken that such person does not influence the child's testimony.
(xv) Persons not necessary for proceedings including extra court staff be excluded from the courtroom during the hearing.
(xvi) Unless absolutely imperative, repeated appearance of the child witness should be prevented.
(xvii) It should be ensured that questions which are put in cross examination are not designed to embarrass or confuse victims of rape and sexual abuse (Ref : Sakshi vs UOI).(xviii) Questions to be put in cross examination on behalf of the accused, in so far as they relate directly to the offence, should be given in writing to the presiding officer of the court who may put them to the victim or witnesses in a language which is clear and is not embarrassing. (Ref : Sakshi vs. UOI)(xix) The examination and cross examination of a child witness should be carefully monitored by the presiding judge to avoid any attempt to
harass or intimidate the child witness.
(xx) It is the duty of the court to arrive at the truth and subserve the ends of justice. The courts have to take a participatory role in the trial and not act as mere tape recorders to record whatever is being stated by the
witnesses. The judge has to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, the court can control the proceedings effectively so that the ultimate objective that is the truth is arrived at. The court must be conscious of serious pitfalls and dereliction of duty on the part of the prosecuting agency. Upon failure of the prosecuting agency showing indifference or adopting an attitude of aloofness, the judge must exercise the vast powers conferred under section 165 of the Evidence Act and section 311 of the CrPC to elicit all necessary materials by playing an active role in the evidence collecting process. (Ref : Zahira Habibulla H. Sheikh & Anr. vs. State of Gujarat & Ors.)(xxi) The judge is expected to actively
participate in the trial, elicit necessary materials from the witnesses at the appropriate context which he feels necessary for reaching the correct conclusion. The judge has uninhibited power to put questions to the witness either during chief examination or cross examination or even during re-examination for this purpose. If a judge feels that a witness has committed an error or slip, it is the duty of the judge to ascertain whether it was so, for , to err is human and the chances of erring may accelerate under stress of nervousness during cross examination. (Ref: AIR 1997 SC 1023 (para 12) State of Rajasthan vs. Ani alias Hanif & Ors.)
(xxii) The court should ensure that the
embarrassment and reservations of all those concerned with the proceedings which includes the prosecutrix, witnesses, counsels may result in camouflage of the ingredients of the offence. The judge has to be conscious of these factors and rise above any such reservations on
account of embarrassment to ensure that they do not cloud the truth and the real actions which are attributable to the accused persons.
(xxiii) The court should ascertain the spoken language of the witness as well as range of vocabulary before recording the deposition. In making the record of the evidence court should avoid use of innuendos or such
expressions which may be variably construed. For instance "gandi harkatein" or "batamezein" have no definite meaning. Therefore, even if it is necessary to record the words of the
prosecutrix, it is essential that what those words mean to her and what is intended to be
conveyed are sensitively brought out.
(xxiv) The court should ensure that there is no use of aggressive, sarcastic language or a gruelling or sexually explicit examination or cross examination of the victim or child witness. The court should come down with heavily to discourage efforts to promote specifics and/or illustration by any of the means offending acts which would traumatise the victim or child witness and effect their testimony. The court to ensure that no element of vulgarity is
introduced into the court room by any person or the record of the proceedings.
(xxv) In order to elicit complete evidence, a child witness may use gestures. The courts must carefully translate such explanation or description into written record.
(xxvi) The victim of child abuse or rape or a child witness, while giving testimony in court should be allowed sufficient breaks as and when required. (Ref : Sakshi vs. UOI)(xxvii) Cases of sexual assaults on females be placed before lady judges wherever
available. (Ref: State of Punjab vs. Gurmit Singh)
To the extent possible, efforts be
made that the staff in the courtroom concerned with such cases is also of the same gender.
(xxviii) The judge should be balanced,
humane and ensure protection of the dignity of the vulnerable victim. There should be no expression of gender bias in the proceedings. No humiliation of the witness should be
permitted either in the examination in chief or the cross examination.
(xxix) A case involving a child victim or child witness should be prioritised and
appropriate action taken to ensure a speedy trial to minimise the length of the time for which the child must endure the stress of involvement in a court proceeding. While considering any request for an adjournment, it is imperative that the court considers and give weight to any adverse impact which the delay or the
adjournment or continuance of the trial would have on the welfare of the child.
V GENERAL
(i) Effort should be made to ensure that there is continuity of persons who are handling all aspects of the case involving a child victim or witness including such proceedings which may be out of criminal justice system. This may involve all steps commencing from the
investigation to the prosecutor to whom the case is assigned as well as the judge who is to conduct the trial.
(ii) The police and the judge must ascertain the language with which the child is conversant and make every effort to put questions in such language. If the language is not known to the court, efforts to join an independent translator in the proceedings, especially at the stage of deposition, should be made.
(iii) It must be ensured that the number of times that a child victim or witness is required to recount the occurrence is minimised to the absolutely essential. For this purpose, right at the inception, a multidisciplinary team involving the investigating officer and the police; social services resource personnel as well as the prosecutor should be created and utilised in the investigation and prosecution of such cases involving a child either as a victim or a witness.
This would create and inspire a feeling of confidence and trust in the child.
(iv) The child victim shall not be separated from his/her parents/guardians nor taken out from his/her environment on the ground of "Ascertaining voluntary nature of statement" unless the parents/guardian is reported to be abusive or the Magistrate thinks it appropriate in the interest of justice.(Ref : Court On Its Own Motion vs. State of N.C.T. Of Delhi)
(v) Courts in foreign countries have evolved several tools including anatomically correct illustrations and figures (as dolls). No instance of such assistance has been pointed out in this court. Extensive literature with regard to such aids being used by foreign courts is available. Subject to assistance from experts, it requires to be scrutinised whether such tools can be utilised in this country during the recording of the testimony of a child victim witness so as to accommodate the difficulty and diffidence faced. This aspect deserves serious attention of all concerned as the same may be a valuable tool in the proceedings to ensure that the complete truth is brought out.
(vi) No court shall detain a child in an institution meant for adults.(Ref : Court On Its Own Motion vs. State of N.C.T. Of Delhi). This would apply to investigating agencies as well.
(vii) The judge should ensure that there is no media reporting of the camera proceedings. In any case, sensationalisation of such cases should not be permitted.
84. The issue with regard to teaching of offences regarding
sexual assault and rape itself has been a source of much
discussion. I am informed that there are instances of even legal
educators being bashful and embarrassed about teaching such
subjects. Judges and counsels are products of the legal
education. The multi-faceted problem and concerns noticed
above are not confined to ensuring gender justice in courts alone.
In this background, it is absolutely imperative that these areas of
law and the issues which have been raised herein are taken up
with all seriousness. Perhaps the programme of continuing legal
education needs to take a look on these questions.

Delhi High Court

Virender vs The State Of Nct Of Delhi on 18 September, 2009

Author: Gita Mittal.

Print Page