Rajasthan HC: High Court Affirms Accused’s Right to Seek Call and Location Details of Prosecution Witnesses During Prosecution Evidence

 The petitioner herein is under-trial being accused serious offence under Section 302 of IPC. If he is held guilty, the consequence thereof may result into death penalty and/or conviction for life imprisonment. Any negligence or dereliction in adducing of the evidence, needless to say, will result in miscarriage of justice and severely jeopardize the defence of the accused. {Para 12}

13. On a Court query, it transpires that currently prosecution testimony is being recorded by the trial court. Given the work load, it may so happen that at the stage of defence evidence, owing to the delay, the call details and location details, which the accused have been advised to adduce in their evidence, may be deleted from the data bank of the service provider of the mobile network of which the accused as well as other witnesses are subscribers.

15. Section 95, supra, thus allows the court to direct postal authorities to produce documents or records that are relevant to a pending trial. The section explicitly grants courts the authority to order the preservation and production of such records, irrespective of whether the documents are in the custody of the accused or not. As per Section 95, the court can direct service providers to produce and retain the required records even before the defense stage, ensuring that these documents are available when needed. This provision thus supports the petitioners' plea to secure the records to avoid their deletion later on by sheer passage of time.

15.1. I am of the view that in the modern day context, postal authority is to be read in a way so as to mean and include even the telecom authority which is a similar service provider qua the electronic data it preserves on behalf of and, delivers, to its consumers. Accordingly, any document or electronic data or a thing, which is not in custody of the accused but with the third party, i.e. postal authority or the telegraph/telecom authority/service provider, but, at the same time, it is relevant for the purpose of the pending trial can be directed by the trial court to be produced in the court as a piece of evidence.

16. If by the time the stage of defense evidence is reached, the call details and location details, which the accused have been advised to adduce in their evidence, have already been deleted from the data bank of the service provider of the mobile network, then the petitioner would be deprived of valuable opportunity of producing their evidence and would thus be seriously prejudiced in his defence.

17. Trite it may sound, but procedure being the handmaid of justice, should not be allowed to thwart justice. Procedural rules exist to facilitate justice, not to hinder it. If strict adherence to procedural rules leads to the destruction of evidence and deprives the accused of a fair chance to defend themselves, the court should exercise its discretion to deviate from the norm. The court should use its powers to ensure that procedural delays do not result in an injustice. Allowing the preservation of electronic records before they are lost is essential for procedural fairness and the integrity of the judicial process.

18. Moreover, the right to a fair trial is enshrined in Article 21 of the Constitution of India, which guarantees the right to life and personal liberty. Personal liberty includes the right to defend oneself in a criminal prosecution. Any deprivation of the accused's ability to present crucial evidence, such as call details and location records, would constitute a violation of this fundamental right. The prosecution is expected to prove its case beyond a reasonable doubt. Similarly, the accused must be given every reasonable opportunity to contest the evidence and present their defense. Failure to preserve critical evidence like call and location details severely hampers the accused's ability to mount a defense, undermining the concept of a fair trial. Courts are duty-bound to avoid miscarriage of justice. Allowing key evidence to be lost due to procedural delays would also result in an unfair trial, which could lead to a wrongful conviction or harsher punishment (including life imprisonment or even the death penalty in this case). By not securing crucial evidence for the defense (which is in the possession of a third party), the court would inadvertently tip the balance in favor of the prosecution, thus creating a disparity which must be obviated.

Ratio: The court at the stage of prosecution evidence, on the application of accused can direct telecom authority/service provider to produce call details and location details of prosecution witnesses.

 IN THE HIGH COURT OF RAJASTHAN AT JODHPUR

S.B. Criminal Misc(Pet.) No. 5372/2024

Mala Ram Vs. State of Rajasthan

Hon'ble Judges/Coram:

Arun Monga, J.

Decided On: 04.09.2024

Citation: 2024:RJ-JD:36831, MANU/RH/1477/2024.

Print Page

High Court of Jammu & Kashmir Clarifies Law on Deferring Cross-Examination and preparation of Case calendar

Ravinder Kumar & Others vs. UT of J&K

Introduction

In a significant judgment delivered on May 19, 2025, the High Court of Jammu & Kashmir at Jammu, presided over by Hon'ble Mr. Justice Rajesh Sekhri, clarified the scope and procedure for deferring the cross-examination of prosecution witnesses in criminal trials. The case, CRM(M) No. 352/2025, was filed by Ravinder Kumar and others (the petitioners) against the Union Territory of Jammu & Kashmir (the respondent), challenging the order of the Principal Sessions Judge, Jammu, which had declined their request to defer the cross-examination of six key eye-witnesses in a murder trial.

Print Page

J & K HC: Under which circumstances the Court can defer cross-examination of set of prosecution witnesses after preparation of Case calendar?

 True it is, that prosecution witnesses are expected to testify in their chief examination on the lines of their statements recorded, during investigation, under Sections 161 or 164 Cr.P.C., and any improvement or deviation by them from said statements, may render their depositions unworthy of credence. However, it is the apprehension of improvisation by the prosecution witnesses in their cross examinations to circumvent the defence strategy which is to be taken into consideration by the Court at the time cross examination of a witness or set of witnesses is sought to be deferred and if that apprehension is well founded, it can hamper the prospects of a fair trial, a basic postulate of criminal jurisprudence. The circumstances narrated by the petitioners, in the present case, justified the exercise of discretion by the Court, in terms of sub section 3 of Section 254 BNSS.{Para 24}

25. If the principle of law expounded by Hon‟ble Supreme Court in Rasheed, is carefully glanced over, it is manifest that, as far as possible, a plea for deferral under Section 254(3) BNSS, must preferably be made before the preparation of the case calendar or at the earliest available opportunity,before the defence strategy would become known to the prosecution. A request for deferral must be premised on sufficient reasons and prejudice is the determinating factor, to be borne in mind.

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

Case: CRM(M) No. 352/2025

 Ravinder Kumar and others  V/s   UT of J&K 

 Coram: HON’BLE MR. JUSTICE RAJESH SEKHRI, JUDGE

Pronounced on: 19.05.2025.

Print Page

Karnataka HC: In Revision Jurisdiction While Considering Discharge Plea of accused, Court Has To Only See material collected by investigating officer

 This Court has already pointed out that the scope of

revision is very limited against the discharge application and the

Court has to consider only the material on record. In the case

on hand, no doubt, the revision petitioner also not disputes that

he made payment of Rs.25 lakhs in favour of daughter of

accused No.1 for getting admission to the M.D. (Pediatric) and

also material is collected by the Investigating Officer that cash

amount of Rs.17,50,000/- was deposited to his individual

account. The contention of the petitioner is that it was his self earned money, but prima facie cash was deposited in his account

and he made the pre-closure of his fixed deposit of

Rs.10,07,192/- and credited the same into his personal account

and he made cash deposit of Rs.9,95,000/- to his personal

account on 24.02.2012 and he got transferred an amount of

Rs.8,05,000/- from the SB account of his wife out of her

accumulated savings to his personal account. The Trial Court

taken note of that she is a house wife. Apart from that, it is the

contention of the learned counsel for the petitioner that the

same is his self-earned money and the same is disclosed in the

income tax returns. The income tax returns does not disclose

the same and all these contentions which have been raised is

nothing but a defence and the same cannot be considered while

considering the discharge application. The judgments which

have been referred supra is clear that the Court cannot conduct

a mini trial and defence cannot be considered in a discharge

application and the Court has to only look into the material

collected by the Investigating Officer whether sufficient material

are there or not. {Para 29}

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

CRIMINAL REVISION PETITION NO.118/2024

DR. MOHANKUMAR M Vs  STATE OF KARNATAKA,

FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 13(1)(d), 13(1)(e) R/W 13(2) OF PREVENTION OF CORRUPTION ACT AND SECTION 109 OF IPC.

CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

DATED THIS THE 20TH DAY OF DECEMBER, 2024

Print Page

Supreme Court: Conviction of accused will be vitiated if the court fails to consider and either accept or refuse defence of accused taken U/S 313 of CRPC by giving reasons in writing

Section 313, Code of Criminal Procedure cannot be seen simply as a part of audi alteram partem. It confers a valuable right upon an Accused to establish his innocence and can well be considered beyond a statutory right as a constitutional right to a fair trial Under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence, not being on oath Under Section 313(2), Code of Criminal Procedure The importance of this right has been considered time and again by this Court, but it yet remains to be applied in practice as we shall see presently in the discussion to follow. If the Accused takes a defence after the prosecution evidence is closed, Under Section 313(1)(b) Code of Criminal Procedure the Court is duty bound Under Section 313(4) Code of Criminal Procedure to consider the same. The mere use of the word 'may' cannot be held to confer a discretionary power on the court to consider or not to consider such defence, since it constitutes a valuable right of an Accused for access to justice, and the likelihood of the prejudice that may be caused thereby. Whether the defence is acceptable or not and whether it is compatible or incompatible with the evidence available is an entirely different matter. If there has been no consideration at all of the defence taken Under Section 313 Code of Criminal Procedure, in the given facts of a case, the conviction may well stand vitiated. To our mind, a solemn duty is cast on the court in dispensation of justice to adequately consider the defence of the Accused taken Under Section 313 Code of Criminal Procedure and to either accept or reject the same for reasons specified in writing. {Para 16}

  IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1330 of 2018.

Decided On: 31.10.2018

Reena Hazarika Vs. State of Assam

Hon'ble Judges/Coram:

Rohinton Fali Nariman and Navin Sinha, JJ.

Author: Navin Sinha, J.

Citation:  MANU/SC/1249/2018,(2019) 13 SCC 289.

Print Page

Whether court should consider the merits of the case at the time framing of charge or while hearing discharge application?

 Having considered the reasoning given by the High Court and the

grounds which are weighed with the High Court while discharging the

accused, we are of the opinion that the High Court has exceeded in its

jurisdiction in exercise of the revisional jurisdiction and has acted beyond

the scope of Section 227/239 Cr.P.C. While discharging the accused,

the High Court has gone into the merits of the case and has considered

whether on the basis of the material on record, the accused is likely to

be convicted or not. For the aforesaid, the High Court has considered in

detail the transcript of the conversation between the complainant and the

accused which exercise at this stage to consider the discharge

application and/or framing of the charge is not permissible at all. As

rightly observed and held by the learned Special Judge at the stage of

framing of the charge, it has to be seen whether or not a prima facie

case is made out and the defence of the accused is not to be

considered. After considering the material on record including the

transcript of the conversation between the complainant and the accused,

the learned Special Judge having found that there is a prima facie case

of the alleged offence under Section 7 of the PC Act, framed the charge

against the accused for the said offence. The High Court materially

erred in negating the exercise of considering the transcript in detail and

in considering whether on the basis of the material on record the

accused is likely to be convicted for the offence under Section 7 of the

PC Act or not. As observed hereinabove, the High Court was required to

consider whether a prima facie case has been made out or not and

whether the accused is required to be further tried or not. At the stage of

framing of the charge and/or considering the discharge application, the

mini trial is not permissible. At this stage, it is to be noted that even as

per Section 7 of the PC Act, even an attempt constitutes an offence.

Therefore, the High Court has erred and/or exceeded in virtually holding

a mini trial at the stage of discharge application. {Para 11}

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPEALLATE JURISDICTION

CRIMINAL APPEAL NO. 407 OF 2021

Diary No. 8524/2020

State of Rajasthan  Vs Ashok Kumar Kashyap 

Author:  M.R. SHAH, J.

Dated: April 13, 2021.

Print Page

Whether an act would amount to an offence if general exceptions under IPC cover it?

 As rightly contended by Mr. Sharath Chandran, it is a misnomer to say that the "Chapter IV – General exceptions" of the IPC is a defence for the accused. In the opinion of this Court, every act should pass through the prism of Chapter IV of the IPC to graduate into an offence. If an act complained of falls within the net of the exceptions in Chapter IV of the IPC,

it is not an offence at all. Before going into the text of Chapter IV of the IPC, it may be apposite to quote Lord Macaulay in this regard:

“This Chapter has been framed in order to obviate

the necessity of repeating in every penal clause a

considerable number of limitations. Some limitations

relate only to a single provision, or to a very small class of

provisions…. Every such exception evidently ought to be

appended to the rule which it is intended to modify. But

there are other exceptions which are common to all the

penal clauses of the Code, or to a greater variety of clauses

dispersed over many chapters. It would obviously be

inconvenient to repeat these exceptions several times in

every page. We have, therefore, placed them in a separate

chapter and, we have provided that every definition of an

offence, every penal provision, and every illustration of a

definition or penal provision, shall be construed subject to

the provisions contained in that chapter.” T.B. Macaulay – The Works of Lord Macaulay: Critical & Historical Essays, Longman's Green, 1885

Edn. P.448

(emphasis supplied)

43. To hit the nail hard, Sections 6 and 84 IPC are extracted

hereunder:

Section 6 IPC:

"Throughout this Code every definition of an offence, every

penal provision, and every illustration of every such definition or penal provision shall be understood subject to the exceptions

contained in the Chapter entitled "General Exceptions", though those exceptions are not repeated in such definition, penal provision, or illustration.

Illustrations:

(a) The sections, in this Code, which contain definitions of

offences, do not express that a child under seven years of age cannot commit such offences, but the definitions are to be understood subject to the general exception which provides that nothing shall be an offence which is done by a child under seven years of age.

(b) A, a police-officer, without warrant, apprehends Z,

who has committed murder. Here A is not guilty of the offence of

wrongful confinement; for he was bound by law to apprehend Z and therefore the case falls within the general exception which provides that “nothing is an offence which is done by a person who is bound by law to do it”.

Section 84 IPC:

“Act of a person of unsound mind.—Nothing is an offence

which is done by a person who, at the time of doing it, by reason of

unsoundness of mind, is incapable of knowing the nature of the act,

or that he is doing what is either wrong or contrary to law.”

(emphasis supplied)

44. Therefore, it is beyond a pale of doubt that the framers of the

Code had catalogued the exceptions in Chapter IV of the IPC in such a way that every criminal act passes muster the exceptions contained therein to metamorphosize into an offence.

47. Ex consequenti, this Court is in complete agreement with the

summing up words of Mr. Sharath Chandran that what is not an offence does not require a defence. This Court is further fortified in leaning towards the contemporary school of thought by the usage of the expression "after hearing the defence of the accused, but, without questioning the accused" in Section

329(2) Cr.P.C. The legislature was aware that in an enquiry under the second

limb of Section 329(2) Cr.P.C., the trial Court is dealing with the case of a

person who has been found unfit to defend himself. Nevertheless, the legislature has recognised his legal right to be defended by an advocate who can effectively articulate the case of the accused and place materials of sterling quality before the Court to show that even at the time of commission of the criminal act, the accused was suffering from mental illness of such a kind so as to bring him within the exception under Section 84 IPC. 

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Crl.O.P.No.4993 of 2018 and Crl.M.P.Nos.2485 & 2486 of 2018

Kaliyappan Muniyappan Aanurpatty Vs State 

Print Page

Whether defence of accused of alibi is proved if witness has not mentioned his name in his evidence?

 Learned counsel Shri Ghanekar argued that this witness

has proved the defence of alibi of accused No. 1 Shyamsundar. Shri

Ghanekar argued that PW 3 Manohar nowhere states that accused No. 1 Shyamsundar was there at the spot or not. Therefore, this clearly shows that accused No. 1 was not present at the scene of the offence.

We do not agree with the submission of learned counsel Shri Ghanekar.

PW 3 Manohar has nowhere stated that accused No. 1 Shyamsundar

was not present at the spot. What he has stated is that along with

deceased Ananda, there were two to three persons in the auto rickshaw.

In the cross-examination also, it was not brought on record that this

witness knew accused No. 1 Shyamsundar and despite that he did not mention his name. Therefore, his testimony nowhere suggests the absence of accused No. 1 at the spot of the incident.
{Para 43}

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 268 OF 2014

 Shyamsundar Vithal Pawle Vs The State of Maharashtra 

Print Page

Whether the court should quash prosecution for the dishonour of cheque if the accused has filed police complaint regarding the loss of leaves of the cheque?

It is next contended on behalf of the petitioner that the petitioner had already lodged a police complaint (NCR) on 25.09.2018 regarding loss of 6/7 cheque leaves of SBI bank. It is contended that the same were stolen by the complainant and the present cheque being one of them, is misused.

12. I have perused the NCR filed by the petitioner as well as the reply filed on behalf of the petitioner to the legal notice. The NCR dated 25.09.2018 lodged by the petitioner, a resident of Vaishali, Ghaziabad, U.P. is about loss of 6/7 signed cheque leaves at Mayur Vihar-I, Delhi and not their theft. Further, the NCR neither mentions the serial numbers of the cheques nor the name of the complainant. In his reply to the legal notice, it was stated that the cheque leaves were stolen by the complainant from the petitioner's house (which is in Vaishali, Ghaziabad) however, no specific date has been mentioned as to when the complainant visited the petitioner's house and stole his signed cheques. The aforementioned two places are distant. Prima facie, the defence taken appears to be self-contradictory.

13. The disputed questions of facts are not to be gone into while exercising power under Section 482 of the Cr.P.C. The Supreme Court in S. Krishnamoorthy v. Chellammal reported as MANU/SC/0372/2015 : (2015) 14 SCC 559 held that when defence of the accused is only factual in nature which is neither admitted by the complainant, nor apparent on the face of the record, then it could be appreciated only by the trial court after the parties have led their evidence.

IN THE HIGH COURT OF DELHI

Crl. M.C. 626/2020

Decided On: 29.06.2020

 Satendra Pal Singh Malik  Vs.   Dhirendra Raj

Hon'ble Judges/Coram:

Manoj Kumar Ohri, J.

 Citation: MANU/DE/1322/2020

Print Page

Whether Session judge can direct acquittal of accused even though accused has not adduced his evidence?

The scope of Section 232 in contradiction with section 235 of the Code of Criminal Procedure is very limited. Section 232 Cr.P.C. reads as follows:-

"232. Acquittal.- If after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the judge shall record an order of acquittal."

6. From the wording of the aforementioned provision under Section 232 Cr.P.C. it would be clear that a clear satisfaction has to be recorded by the trial court immediately on completion of the evidence of the prosecution and examining the accused as also hearing the prosecution and the defence for recording acquittal on the ground that there is no evidence that the accused had committed offence.

7. Here in this case, there are 7 accused persons and the Court had to satisfy that it was a case of no evidence against all the accused persons. The word „ no evidence‟ in Section 232 Cr.P.C. cannot be construed or interpreted to mean absence of sufficient evidence for conviction or absence of trustworthy or conclusive evidence in support of the charge. At this stage for deciding as to whether there is evidence to indicate a commission of offence, the Sessions Judge is not required to consider as to what value should be attached to such evidence. 

Difference between S 232 Cr.P.C and S 235 of CrPC 

The object of Section 232 is to expedite the conclusion of trial and at the same time avoid unnecessary harassment to the accused by calling upon him to produce evidence and avoid waste of public time. Nonetheless if there is evidence, the trial court must go on to its course as envisaged in Section 233 and 234 Cr.P.C. before delivering its judgment under Section 235 Cr.P.C.

Patna High Court - Orders

Sanjay Kumar @ Sanjay Kumar Singh @ ... vs State Of Bihar & Anr on 16 February, 2010

Print Page

Whether accused can be convicted on basis of his statement U/S 313 of CRPC?

 The statement made in defence by accused under Section 313, Cr.P.C. can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under Section 313 of the Code of Criminal Procedure cannot be made the sole basis of his conviction. The law on the subject is almost settled the statement under Section 313 Cr.P.C. of the accused can either be relied in whole or in part. It may also be possible to rely on the inculpatory part of his statement if the exculpatory part is found to be false on the basis of the evidence led by the prosecution. 

30. The statement of accused No. 1 - Prem Singh recorded in his examination under Section 313 of Cr.P.C. constitutes his defence plea. He stated that he was attacked by the deceased along with his associate whereupon the villagers rushed and caused injuries to the deceased the evidence led by the prosecution having been rejected by this Court, the defence set up by accused - Prem Singh cannot be discarded as wholly improbable.

31. The statement of accused under Section 313 of Cr.P.C. is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the prosecution. As held in the case of Nishi Kant (Supra) by this Court if the exculpatory part of his statement is found to be false and the evidence led by the prosecution is reliable the inculpatory part of his statement can be taken aid of to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement under Section 313 of Cr.P.C cannot be made the sole basis of his conviction.

IN THE SUPREME COURT OF INDIA

Appeal (crl.) 792-793 of 1994

Decided On: 01.10.2002

 Mohan Singh Vs.  Prem Singh and Ors.

Hon'ble Judges/Coram:

U.C. Banerjee and D.M. Dharmadhikari, JJ.

Citation: AIR 2002 SC 3582

Print Page

When defence of unsoundness of mind of accused is not tenable?

On the other hand, learned Counsel appearing on behalf of the Respondent-State of Maharashtra sought to justify the correctness of the findings of the Division Bench of the High Court and submits that the first appellate court in its domain has exercised its appellate power and re-appreciated the evidence and eventually arrived at the conclusion on the basis of the material evidence placed on record, including the defence witness, as also taking into consideration the subsequent conduct of the accused at the time of producing him, after the arrest, before the learned Magistrate, which was the first opportunity for him to state that he has been suffering from schizophrenia, and at the time of hearing of the appeal, he has been sent to the Civil Surgeon. After considering the opinion of the Civil Surgeon and the evidence placed on record, the appellate court has recorded a finding that it is evident, that it was realised on 20.08.2004 that the accused/Appellant herein was talking irrelevantly that was followed by an order of reference of the Appellant to the Civil Surgeon. Whereafter, the accused was certified to be fit to face the trial in March, 2005. Thus, relapse to schizophrenic attack was in August, 2004, which is one year after the incident on 30.07.2003 and, thereafter, at the time of arrest, he has not complained before the learned Magistrate, therefore, the Division Bench of the High Court presumed that there were no signs of unsoundness of mind of the accused/Appellant, otherwise there could have been a reference of the accused/Appellant by the learned Magistrate to the Competent Medical expert Doctor at the relevant time. Further, adverting to the relevant fact, namely, on 31.07.2003 at 3.00 p.m., when he was produced before the learned Judicial Magistrate, First Class, Srirampur, the learned Magistrate recorded that the accused/Appellant has no complaint of ill-treatment at the hands of Police. On the day next, after the incident, there were no signs of unsoundness of mind and with reference to the remand report, because it is not exhibited document, presumption, as to the action as recorded in the remand report referred to by the learned Magistrate, will have to be drawn because the learned Magistrate being an official, he has been presumed to have done official act properly while remanding to the judicial custody at the time when the Appellant was produced before him. Therefore, the Division Bench of the High Court has arrived at the right conclusion that there is no evidence adduced by the accused/Appellant on record to show that he was suffering from mental illness on the date of the occurrence to extend the benefit of Section 84 of the Indian Penal Code.

7. The Division Bench of the High Court with reference to the conduct of the accused seen before the incident, has arrived at the conclusion that he was working to a plan on the day he was produced before the learned Magistrate on 31.07.2003, there were no signs of unsoundness of mind. The defence has not been successful in proving that "at the crucial point of time" or "at the time of doing the act" by unsoundness of mind, the accused/Appellant was incapable of knowing the nature of his act. Regarding evidence of unsoundness of mind brought on record is not regarding unsoundness of mind soon before or after the incident. On the contrary, soon before the incident, the accused/Appellant appears to have conscientiously acted upon the plan and, therefore, the Division Bench of the High Court was rightly not agreed with the finding of fact recorded by the trial court on the charge holding him not guilty. It has rightly set aside the finding of the trial court holding that the case of the accused does not fall within the purview of general exceptions available Under Section 84 of the Indian Penal Code. Further, we have carefully examined the reasons recorded by the trial court Judge that immediately after the incident the Appellant has performed Pooja and also prepared tea that would factor in to hold that the conclusion arrived at by the Division Bench of the High Court is based on proper appreciation of the evidence placed on record. More so, in absence of defence for unsoundness of mind the accused/Appellant on the date of the incident, in our considered opinion, the Division Bench of the High Court did not err in setting aside the acquittal judgment passed by the trial court.

IN THE SUPREME COURT OF INDIA

Crl. A. No. 2143 of 2009

Decided On: 13.01.2016

 Uttam Nandram Somwanshi

Vs.

 State of Maharashtra

Hon'ble Judges/Coram:

V. Gopala Gowda and R.K. Agrawal, JJ.

Citation:(2016) 13 SCC205

Print Page

Under which circumstances court can look in to defence material produced at time of framing of charge?

 In   the   judgment   given   in   the   case   of  Rukhmini   Narvekar   V/s.   Vijaya
Satardekar and others (cited supra) the Hon'ble Supreme Court has laid down, in
paragraph no.22, as follows:
“22. Thus in our opinion, while it is true that ordinarily defence
material cannot be looked into by the Court while framing of the
charge in view of D.N. Padhi' case 6, there may be some very rare
and exceptional cases where some defence material when shown
to   the   trial   court   would   convincingly   demonstrate   that   the
prosecution version is totally absurd or preposterous, and in such
very rare cases the defence material can be looked into by the
court at the time of framing of the charges or taking cognizance. In
our opinion, therefore, it cannot be said as an absolute proposition
that under no circumstances can the court look into the material
produced by the defence at the time of framing of the charges,
though   this   should   be   done   in   very   rare   cases   i.e.   where   the
defence produces some material which convincingly demonstrates
that   the   whole   prosecution   case   is   totally   absurd   or   totally
concocted.”
The learned advocate for the applicants has not been able to show that the
present   case   is   one   of   the   exceptional   cases   and   that   the   documents
(communications) produced by the applicants convincingly demonstrate that the
prosecution version is totally absurd or concocted.  
Considering   the   facts   of  the   case  and   the   proposition   laid   down   in   the
judgment given in the case of Rukhmini Narvekar v. Vijaya Satardekar and others,
the other judgments referred by the learned Advocate for the   applicants, do not
assist the applicants.  
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL REVISION APPLICATION NO.92/2015
 Prabhakar S/o Rupnarayan Jha V  The Central Bureau of Investigation, 

­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­
CORAM  :  Z.A. HAQ, J.
DATE  :    25.2.2016
Citation:2016 ALLMR(CRI)4600

Print Page

Whether plea of ailbi is required to be proved after prosecution has proved its case?

The word alibi means “elsewhere”. The plea of alibi is
not one of the General Exceptions contained in Chapter IV of
IPC. It is a rule of evidence recognized under Section 11 of
the Evidence Act. However, plea of alibi taken by the defence
is required to be proved only after prosecution has proved its
case against the accused. In the present case said condition
is fulfilled.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2099 OF 2008
Darshan Singh Vs State of Punjab 
Dated:January 06, 2016.

Print Page

Whether prosecution under PCPNDT Act can be quashed considering defence of accused?

 Keeping   in   view   the   observations   of   the
Hon'ble   Division   Bench   in   the   case   of   "Sujit
Govind   Dange",   mentioned   above,   there   remains   no
doubt   that   deficiencies   or   inaccuracies   in   the
maintaining   of   record   and   Form   F   attract   the
provisions   of   Section   5   or   6   of   the   Act.   I   am
bound   by   the   Judgment   of   the   Division   Bench   of
this Court.
19. When   the   complaint   has   been   filed   under
this Act showing the inaccuracies and deficiencies

in   the   keeping   of   record,   and   complainant   has
documents to support disclosing sufficient grounds
to proceed in the light of provisions of this Act
and   Rules,   this   Court   cannot,   before   holding   of
the   trial,   sit   in   Judgment   whether   or   not   the
Record has been kept properly; or Form F concerned
has been properly filled or improperly filled; or
whether   or   not   the   deficiencies   pointed   out   are
serious or insignificant. When complaint has been
filed   pointing   out   deficiencies   or   inaccuracies,
before trial it would not be proper for this Court
to consider the arguments that what is pointed out
is   no   deficiency   or   no   inaccuracy.   It   would   be
prejudging  the matter.  As per Proviso  of Section
4(3) "any" deficiency or inaccuracy in keeping of
complete record "shall amount to contravention" of
Section   5   or   6   "unless   contrary   is   proved."
Naturally,   the   contrary   can   be   "proved"   only   at
the trial. Appropriate Authority under the Act is
Public   Servant   acting   in   discharge   of   official
duty  and has to act  with  responsibility.  Keeping

in   view   the   Judgments   discussed   above,   in   such
serious   matters,   it   would   be   inappropriate   to
interfere when prima facie case is made out.   
                               
     IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 
BENCH AT AURANGABAD
   CRIMINAL WRIT PETITION NO.26 OF 2013
Dr. Radhakrishna s/o Namdeo Zalwar,

       VERSUS             
The State of Maharashtra,   


              CORAM:  A.I.S. CHEEMA, J.
  
   DATED: 9TH MAY, 2014.
Citation;2014(3) BomCR(CRI)798

Print Page

Whether process can be issued against complainant of case of dishonour of cheque on the basis of defence of accused of that case?

 Learned counsel for respondent no. 2 has pointed out to
me observations of the learned Magistrate while acquitting respondent

no. 2 of the offence punishable under Section 138 of Negotiable
Instruments Act and in order to support his argument that there was
something available on record which would warrant full-fledged trial of
the applicants. In the proceedings initiated under Section 138 of
Negotiable Instruments Act against respondent no. 2 by the applicants,
the learned Magistrate on merits of the case found that disputed
cheques did not bear signatures of the accused, i.e. respondent no. 2,
and the defence of respondent no. 2/accused that the disputed cheques
were stolen by the applicants was acceptable. These observations
relate to probabilising of the defence of the accused in that case, who
is respondent no. 2 in the present case and, therefore, it would have no
abiding effect on the merits of this case. Standard of proof for
accepting defence of accused in a criminal case is different than what is
required for proving an offence. Defence is accepted or rejected on the
law of probabilities. Offence is proved on the law of proof beyond
reasonable doubt. It means acceptance of an averment taken in
defence may not always lead to a conclusion that it is proved and would
only suggest that it is possible and hence creating doubt in prosecution
story. As such, said observations cannot be considered for examining
sufficiency of grounds to proceed further in a criminal prosecution
launched against the applicants. In the present case, respondent no. 2
would be required to stand on his own strength showing existence of
sufficient material for proceeding further against the applicants, which,

in my opinion, the respondent no. 2 has not done successfully.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
 CRIMINAL APPLICATION (apl) No. 627 OF 2013 WITH
CRIMINAL APPLICATION No. 628 OF 2013
(1) Crim. Appln. No. 627/13
 Ashok s/o Kishorilal Banarsi V State of Maharashtra,

    CORAM  :      S.B. SHUKRE,     J.     
DATED  :  24.02. 2015.
Citation; 2015 ALLMR(CRI)4901

Print Page

Whether court can take in to consideration defence of accused prior to order of issue process?

In the present case, on going through the order of the
learned Magistrate, we are satisfied that the same suffers from
no illegality. The specific case of the appellant that FIR was
registered on an undated photocopy of a petition attributed to
the appellant but not bearing her original signature could not
have been rejected by the learned Magistrate at the present
stage especially in view of the report of investigation by the CID
which was also called for and there being no dispute that the FIR
No.73/2002 was registered only on the basis of a photocopy on
which the signature is not in original and hence in our considered
view the Hon’ble High Court grossly erred in exercise of its
jurisdiction by directing the appellant/complainant to lead further
evidence and produce the original documents to show forgery. If
the FIR is admittedly on the basis of only a photocopy of a
document allegedly brought into existence by the accused
persons, the High Court erred in directing the appellant to
produce the original and get the signatures compared.
 In our considered view, the High Court fell into error of
evaluating the merits of the defence case and other submissions
advanced on behalf of the accused which were not appropriate

for consideration at the stage of taking cognizance and issuing
summons.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 285-287 OF 2015
[Arising out of S.L.P.(Crl.)Nos.300-302 of 2013]
Sonu Gupta V Deepak Gupta & Ors.

February 11, 2015.
Citation;2015ALLMR(Cri)1192(SC),2015(2)Crimes1(SC),(2015)3SCC424,

Print Page

Whether defence of accused can be considered at the stage of S 245 of crpc?

What has been said in the application under section 245(2) Cr.P.C. can not be taken as gospel truth nor looked into because the defence of the accused can not be considered at the stage of section 245 Cr.P.C. 
HIGH COURT OF JUDICATURE AT ALLAHABAD 


Case :- CRIMINAL REVISION No. - 2962 of 2013 

 Dilshad & 4 Others Vs  State Of U.P. & Another 
Dated :- 10.12.2013 

Print Page

Whether accused can put his defence at the time of framing of charge?

At the stage of framing of charge roving and
fishing inquiry is impermissible. If the contention of
the accused is accepted, there would be a mini-trial at
the stage of framing of charge. That would defeat the
object of the Code. It is well settled that at the stage of
framing of charge the defence of the accused cannot be
put forth. The acceptance of the contention of the
learned counsel for the accused would mean
permitting the accused to adduce his defence at the
stage of framing of charge and for examination thereof
at that stage which is against the criminal
jurisprudence. By way of illustration, it may be noted
that the plea of alibi taken by the accused may have to
be examined at the stage of framing of charge if the
contention of the accused is accepted despite the well-
settled proposition that it is for the accused to lead
evidence at the trial to sustain such a plea. The
accused would be entitled to produce materials and
documents in proof of such a plea at the stage of
framing of the charge, in case we accept the contention
put forth on behalf of the accused. That has never
been the intention of the law well settled for over one
hundred years now.
It is in this light that the
provision about hearing the submissions of the
accused as postulated by Section 227 is to be
understood. It only means hearing the submissions of
the accused on the record of the case as filed by the
prosecution and documents submitted therewith and
nothing more.
The expression “hearing the
submissions of the accused” cannot mean opportunity
to file material to be granted to the accused and
thereby changing the settled law. At the stage of
framing of charge hearing the submissions of the
accused has to be confined to the material produced
by the police.
HIGH COURT OF ORISSA : CUTTACK
CRLMC No. 161 of 2014
In the matter of an application under Section 482 of the Code of
Criminal Procedure.

Sri Rajendra Kumar Pati V Union of India

PRESENT :
THE HONOURABLE SHRI JUSTICE S.C. PARIJA

Date of Judgment : 06.01.2015

Citation;2015 CRLJ1392 Orissa

Print Page