Supreme Court: Discharge of accused for offences under PCPNDT Act will not bar complaint filed by the Appropriate Authority U/S 28 of the PCPNDT Act

  Before finally concluding our discussion, we may also deal with two more submissions advanced by learned Senior Counsel for the Appellant. Submission of Mr. Bhalla, learned Senior Counsel, is that though FIR No. 336 dated 17.09.2015 was registered against Dr. Abdul Kadir and the Appellant following the illegal raid, the Appellant was discharged by the learned Magistrate on the basis of an application filed by the police itself. The contention is that after discharge of the Appellant, the criminal complaint is not maintainable since it is based on the same set of facts. We are afraid such a submission cannot be accepted. Section 28(1) of the PCPNDT Act, which we have already taken note of supra, specifically says that no court shall take cognizance of an offence under the PCPNDT Act except on a complaint made by the appropriate authority or by any officer authorized by the appropriate authority etc. Further, as per Rule 18A (3) (iv) of the PCPNDT Rules, the appropriate authority should not involve police for investigating cases under the PCPNDT Act as the cases under this Act are tried as complaint cases under the Code of Criminal Procedure. {Para 54}

Ratio: Discharge in Police Case vs. Statutory Complaint – A discharge order passed by a Magistrate in a criminal case arising from an FIR (Police Investigation) has no bearing on a separate complaint filed by the Appropriate Authority under Section 28 of the PCPNDT Act - The Act mandates cognizance only upon a complaint by the authorized authority, and police investigation is generally discouraged for these specialized offences – appeal dismissed.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1058 of 2026 

Decided On: 23.02.2026

Naresh Kumar Garg Vs. State of Haryana and Ors.

Hon'ble Judges/Coram:

Manoj Misra and Ujjal Bhuyan, JJ.

Author: Ujjal Bhuyan, J.

Citation: 2026 INSC 176,MANU/SC/0182/2026.

Read full judgment here: Click here.

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Supreme Court:'Bail Is The Rule' Even When Higher Court Orders Arrest Of Accused U/ S.390 CrPC While Considering Challenge To Acquittal/Discharge

 SECTION 390 OF CODE OF CRIMINAL PROCEDURE

 As we have held earlier, in view of Section 401(1) of the Code of Criminal Procedure, the revisional Court can exercise power Under Section 390 in a given case. As can be seen from Section 390, when an appeal is preferred against an order of acquittal, the High Court is empowered to issue a warrant directing that the Accused be arrested and brought before it or any sub-ordinate Court. The Court, before which the Accused is brought, may commit him to prison pending disposal of the appeal or admit him to bail. Once an appeal against acquittal is admitted, the status of the person acquitted as an Accused can be said to be restored. That is what is held in the case of State of Uttar Pradesh v. Poosu and Ors.   MANU/SC/0191/1976 : 1976:INSC:94 : (1976) 3 SCC 1. The object of Section 390 of the Code of Criminal Procedure is that if ultimately the order of acquittal is converted into the order of conviction, the Accused must be available for undergoing sentence. The second object of Section 390 is that when an appeal against acquittal is finally heard, the Accused's presence at the hearing can be secured. Therefore, there is a power vested in the High Court to arrest an acquitted Accused and bring him before it or the Trial Court. The object is that the Accused remains under the jurisdiction of the Court dealing with the appeal against acquittal. It is well settled that an order of acquittal further strengthens the presumption of innocence of an Accused. Therefore, as a normal rule, where an order Under Section 390 of the Code of Criminal Procedure is passed, the Accused must be admitted to bail rather than committing him to prison. It is well-settled in our jurisprudence that bail is the rule, and jail is the exception. This Rule must be applied while exercising power Under Section 390 of the Code of Criminal Procedure, as the position of the acquitted Accused is on a higher pedestal than an Accused facing trial. When an Accused faces trial, he is presumed to be innocent until he is proven guilty. In the case of an acquitted Accused, as stated earlier, the presumption of innocence is further strengthened because of the order of acquittal. Only in extreme and rare cases by way of exception can an order committing an acquitted Accused to prison be passed Under Section 390. {Para 18}

19. When a revision application challenging the order of discharge is admitted for hearing, the High Court may exercise power Under Section 390 by directing the person discharged to appear before the Trial Court and by directing the Trial Court to admit him to bail on appropriate terms and conditions. If such an order is passed after the admission of the revision application against the order of discharge, it is a sufficient safeguard for ensuring the presence of the discharged Accused at the time of hearing of the revision application and for undergoing trial, if the order of discharge is set aside. If the discharge order is eventually set aside, such an order Under Section 390 of the Code of Criminal Procedure passed in an admitted revision application against the discharge order will be in the aid of final relief. As held earlier, while exercising power Under Section 390 of the Code of Criminal Procedure, the normal Rule is that the acquitted Accused should not be committed to custody, and a direction should be issued to admit him to bail. This normal Rule should apply all the more to cases where the challenge is to the order of discharge, as the order of discharge is on a higher pedestal than an order of acquittal.

20. Passing an order Under Section 390 directing the discharged Accused to admit to bail is sufficient to procure the presence of the discharged Accused at the time of hearing of the revision application and for undergoing trial if the order of discharge is set aside.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 536-537 of 2025

Decided On: 28.02.2025

Sudershan Singh Wazir Vs. State (NCT of Delhi) and Ors.

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and Ujjal Bhuyan, JJ.

Author: Abhay Shreeniwas Oka, J.

Citation: 2025 INSC 281,MANU/SC/0293/2025.

Read full judgment here: Click here.

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Supreme Court: What basic principles the court should follow while deciding application for discharge of accused?

ABSENT A STRONG SUSPICION, AN ACCUSED CAN BE DISCHARGED

14. Having heard the learned counsel for the parties, this Court is of the view that before proceeding with the matter, it is essential to outline the legal principles to be kept in mind by the Court while deciding an application seeking discharge.

“21. In the decision in Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia [Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia, (1989) 1 SCC 715 : 1989 SCC (Cri) 285] , this Court held that the word “ground” in Section 227CrPC, did not mean a ground for conviction, but a ground for putting the accused on trial.

22. In P. Vijayan v. State of Kerala [P. Vijayan v. State of Kerala, (2010) 2 SCC 398 : (2010) 1 SCC (Cri) 1488] , after extracting Section 227CrPC, this Court in paras 10 and 11 held thus: (SCC pp. 401-402)

“10. … If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words “not sufficient ground for proceeding against the accused” clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts.

11. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.”

23. In para 13 in P. Vijayan case [P. Vijayan v. State of Kerala, (2010) 2 SCC 398 : (2010) 1 SCC (Cri) 1488] , this Court took note of the principles enunciated earlier by this Court in Union of India v. Prafulla Kumar Samal [Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 : 1979 SCC (Cri) 609] which reads thus: (Prafulla Kumar Samal case [Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 : 1979 SCC (Cri) 609] , SCC p. 9, para 10)

“10. … (1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to  discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.”

16. In M.E. Shivalingamurthy vs. Central Bureau of Investigation

Bengaluru, (2020) 2 SCC 768, this Court has held as under:-

“17.This is an area covered by a large body of case law. We refer to a recent judgment which has referred to the earlier decisions viz. P. Vijayan v. State of Kerala and discern the following principles:

17.1. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused.

17.2. The trial Judge is not a mere post office to frame the charge at the instance of the prosecution.

17.3. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the police or the documents produced before the Court.

17.4. If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, “cannot show that the accused committed offence, then, there will be no sufficient ground for proceeding with the trial”.

17.5. It is open to the accused to explain away the materials giving rise to the

grave suspicion.

17.6. The court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, would not entitle the court to make a roving inquiry into the pros and cons.

17.7. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true.

17.8. There must exist some materials for entertaining the strong suspicion which

can form the basis for drawing up a charge and refusing to discharge the accused.

18. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 CrPC (see State of J&K v. Sudershan Chakkar). The expression, “the record of the case”, used in Section 227 CrPC, is to be understood as the documents and the articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the police (see State of Orissa v. Debendra Nath Padhi).” (emphasis supplied)

17. Consequently, at the stage of discharge, a strong suspicion suffices. However, a strong suspicion must be found on some material which can be translated into evidence at the stage of trial.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.5146 OF 2025

TUHIN KUMAR BISWAS @ BUMBA Vs THE STATE OF WEST BENGAL 

Author: MANMOHAN, J.

Citation: 2025 INSC 1373.

Dated: December 02, 2025.

Read full judgment here: Click here.

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Supreme Court: Taking Photos Or Videos Of Woman When She's Not Engaged In Private Acts Won't Amount To Voyeurism punishable under S 354C of IPC

  FIR AND CHARGESHEET DO NOT DISCLOSE AN OFFENCE UNDER SECTION 354C IPC

19. Section 354C of IPC defines voyeurism as an act of a man watching or capturing the image of a woman engaging in a ‘private act’ in circumstances where she would usually have the expectation of not being observed. ‘Private act’ has been defined in Explanation 1 as an act including “an act of watching carried out in a place which, in the circumstances, would reasonably be expected to provide privacy and where the victim's genitals, posterior or breasts

are exposed or covered only in underwear; or the victim is using a lavatory; or the victim is doing a sexual act that is not of a kind ordinarily done in public.”

20. Upon a perusal of the FIR and chargesheet on record, this Court is unable to conclude the same disclose an offence under Section 354C of the IPC since there is no allegation in the FIR and chargesheet that the complainant was watched or captured by the Appellant-accused while she was engaging in a ‘private act’. The learned Single Judge, in the impugned judgment, has concluded with respect to the offence under Section 354C as under:-

“11. Allegation made in the written complaint, in my opinion, did not disclose any offence under Section 354C…

12. From the bare reading of the aforesaid provision, it is clearly intelligible that the allegation of clicking pictures and making video made in the written complaint cannot be said to be an offence within the meaning of Section 354C of IPC.”

(emphasis supplied)

21. Consequently, the learned Single Judge in the impugned order itself concluded that the allegations in the FIR and the material on record did not disclose an offence under Section 354C of IPC.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.5146 OF 2025

TUHIN KUMAR BISWAS @ BUMBA Vs THE STATE OF WEST BENGAL 

Author: MANMOHAN, J.

Citation: 2025 INSC 1373.

Dated: December 02, 2025

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Delhi HC: Cruelty simpliciter is not enough to constitute the offence U/S 498A IPC

Furthermore, in Jayedeepsinh Pravinsinh Chavda vs. State of Gujarat, MANU/SC/1308/2024 : (2025) 2 SCC 116 the Supreme Court while considering the guilt of the husband under Section 498A IPC observed that cruelty simpliciter is not enough to constitute the offence under Section 498A IPC; rather it must be done either with an intention to cause injury or to drive the person to commit suicide or with an intention to coerce her and her relatives to meet unlawful demands. Mere cruelty is not enough to constitute the offence. {Para 32}

 IN THE HIGH COURT OF DELHI

CRL.M.C. 4785/2017

Decided On: 13.08.2025

Gainda Lal Vs. The State Govt of NCT of Delhi and Ors.

Hon'ble Judges/Coram:

Neena Bansal Krishna, J.

Citation: 2025 DHC 6826, MANU/DE/6021/2025.

Read full judgment here: Click here.

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Delhi HC: How to appreciate evidence in case of offence U/S 498A of IPC and Dowry death?

 Furthermore, in Jayedeepsinh Pravinsinh Chavda vs. State of Gujarat, MANU/SC/1308/2024 : (2025) 2 SCC 116 the Supreme Court while considering the guilt of the husband under Section 498A IPC observed that cruelty simpliciter is not enough to constitute the offence under Section 498A IPC; rather it must be done either with an intention to cause injury or to drive the person to commit suicide or with an intention to coerce her and her relatives to meet unlawful demands. Mere cruelty is not enough to constitute the offence. {Para 32}

33. In the present case, to bring in the clause of cruelty leading to the death of the woman, it may be noted that Ms. Shashi had died not because of any act of cruelty but for natural reasons, as stated by CW-1 and rightly noted by learned ASJ. Therefore, Clause (a) to the Explanation annexed to Section 498A IPC is not attracted.

34. Now, Clause (b) to Section 498A IPC needs to be examined to assess whether there are any allegations, which even prima facie make out that the deceased was subjected to harassment with a view to coerce her or persons related to her to meet any unlawful demand of property or valuable security.

35. In Dara Lakshmi Narayana vs. State of Telangana, MANU/SC/1309/2024 the Supreme Court while dealing with the components of Section 498A IPC and to ascertain whether the same are attracted on vague allegations raised by the wife, observed that the contents of the Complaint may be assessed to see if there is any kind of cruelty as contemplated in Clause 1 or if there is any harassment for dowry as contemplated in Clause 2 is made out. If the allegations in the FIR are found to be vague and ambiguous and lack precise allegations which are alleged after the notice of divorce, then it may be concluded that the FIR has been lodged as a retaliatory measure intended to settle the score with the husband and his relatives. In such a situation, the quashing of the FIR is justified.

36. Furthermore, the above observations were reiterated in the case of Digambar, (supra), that where the FIR or the Complaint even if taken on the face value and accepted in their entirety, do not prima facie constitute a case against the accused, the quashing of proceedings would be justified. Only stating cruelty has been committed by the Appellants, would not amount to an offence under Section 498A IPC.

39. It is quite understandable that he being a father, he would have been highly traumatised on account of the untimely death of his daughter. However, it is quite evident from the first statement of the Complainant that no details of the alleged harassment of the daughter was mentioned.

41. The next statement made by the Complainant was under Section 164 Cr.P.C. wherein also, similar allegations were made. However, as already noted above, no specific incidents which have been detailed in this Complaint.

43. However, Petitioner has neither given any date nor given any proof of giving any money, especially when he himself has stated that he was an Auto driver and had financial constraints. Such bald assertions, in the given situation, cannot be held to be even making out a prima facie case of harassment.

44. When the Petitioner's daughter became pregnant for the second time, he brought her to his house in the 5th month as there was threat to liquidate her in case she gave birth to the second child. He brought her to his house and left her in the matrimonial home after the birth of the second child. Pertinently, the Complainant has made contradictory statements in so much as if the Respondents had threatened to kill the Petitioner's daughter on birth of a girl child, no father would leave the daughter in the matrimonial home in the face of such imminent threat.

45. It is further claimed that there was consistent demand of Rs.2 Lacs in the name of both the children or else they threatened to kill the daughter. He sold his plot at Surya Colony, Faridabad and gave Rs.1 Lakh, despite which his daughter was killed. However, no evidence has been placed on record of either the ownership or sale or of the date on which this money was given. This assumes importance as the Petitioner's daughter died within 40 days of birth of second daughter. To accept the alleged sale and payment, some cogent evidence about the alleged demands and payment should have been disclosed by the Petitioner. Such bald assertions cannot be considered to even disclose the case of harassment.

46. The statement under Section 161 Cr.P.C. of Sunny, brother of the deceased, Ms. Shashi was also recorded, who stated that he had gone to meet Ms. Shashi at her matrimonial home on Holi when he found her crying and her in-Laws were harassing her. He, on return to their home, informed the same to the Petitioner.

48. However, merely because the deceased was crying, cannot per se make out any case of dowry harassment. The statements of the brother, Sunny and sister, Poonam also in no way establish even prima facie that Shashi was being harassed by her in laws for meeting their demands.

49. Furthermore, in the Petitioner's Complaint as well, aside from vague assertions that there was a constant demand of money, there are no specific incidents which have been detailed in this Complaint. The amount of Rs.45- 50,000 has been stated to have been given in Chuchak at the time of birth of the daughter and cannot be termed as a demand. There was nothing on record to even remotely suggest that there was any harassment of the deceased for fulfilling their demands for money.

50. The allegations in the Complain and the statements of the witnesses reflect that essentially the Petitioner was aggrieved by the death of his daughter and believed it to be on account of cruelty meted out to her. However, the learned ASJ had concluded that the death was on account of natural reasons and discharged the Respondents No. 3 to 5 under Section 304B IPC. This Order never got challenged and cannot be re-agitated now.

 IN THE HIGH COURT OF DELHI

CRL.M.C. 4785/2017

Decided On: 13.08.2025

Gainda Lal Vs. The State Govt of NCT of Delhi and Ors.

Hon'ble Judges/Coram:

Neena Bansal Krishna, J.

Citation: 2025 DHC 6826, MANU/DE/6021/2025

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Supreme Court: Order of discharge of accused should be stayed in exceptional cases

 An order staying the order of discharge is a very drastic order which has the effect of curtailing or taking away the liberty granted to the Accused by the discharge order. As a result of the order staying the order of discharge, the order of discharge ceases to operate, and the Sessions Court can proceed to frame charges against the Accused and try him further. Thus, the stay of the discharge order has a grave consequence of depriving an Accused of the liberty granted under the discharge order. The grant of stay to the order of discharge amounts to the grant of final relief, as the trial can proceed against him. An interim order can be granted pending disposal of the main case only if the interim order is in the aid of final relief sought in the main case. If the discharge order is ultimately set aside by grant of final relief in the revision, the Accused has to face the trial. Therefore, the order staying the order of discharge by way of interim relief cannot be said to be in the aid of final relief. {Para 13}

14. It is only in rare and exceptional cases where the order of discharge is ex-facie perverse that the revisional Court can take the extreme step of staying that order. However, such an order should be passed only after giving an opportunity of being heard to the Accused. Moreover, while granting the stay, the Court must mould the relief so that the trial does not proceed against the discharged Accused. If the trial against a discharged Accused proceeds, even before the revision application against an order of discharge is decided, the final outcome of the revision will become fait accompli.

Ratio Decidendi:

It is only in rare and exceptional cases where the order of discharge is ex-facie perverse that the revisional Court can take the extreme step of staying that order.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 536-537 of 2025

Decided On: 28.02.2025

Sudershan Singh Wazir Vs. State (NCT of Delhi) and Ors.

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and Ujjal Bhuyan, JJ.

Author: Abhay Shreeniwas Oka, J.

Citation: 2025 INSC 281,MANU/SC/0293/2025

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Andhra Pradesh HC: Whether the court can summon discharged or acquitted accused as witness U/S 311 of CRPC in the same case?

A plain reading of Sec. 311 does not place any restrictions on the power of the Court to issue summons to a witness if the Magistrate is of the opinion that the evidence of those witnesses is essential to the just decision of the case. After the complainant compounded the offences with Subbarayan and Kannan the latter two persons were acquitted as a result of the compounding and no longer figure as co-accused in the case to be tried along with the revision petitioner. It can no doubt be said that having figured as co-accused at an earlier point of time, the evidence which those witnesses are likely to give is in the nature of an accomplice evidence but then the court will naturally be on its guard in not acting on such evidence unless their evidence is corroborated in material particulars. The absence of evidence corroborating the evidence of these two persons in material particulars cannot impinge in any manner on the power of the court to summon them as witnesses. Sec. 311, therefore, gives ample power to the court to summon witnesses who are no longer accused before him if the Magistrate felt that their evidence is essential to the just decision of the case. {Para 2}

3. A few cases which have been relied upon can now be noticed. In Banu Singh v. Emperor I.L.R. 33 Cal. 1353 a Division Bench expressed itself:

"The law, however, is well settled, and there can be no controversy on the point that an accomplice, if he is not an accused under trial in the same case is a competent witness and may, as any other witness, be examined on oath.........On such a discharge or acquittal he becomes a competent witness against other persons accused of the same offence. The disability to be examined as a witness on oath against the persons who are brought before the court on the same indictment, may thus cease on the withdrawal of the indictment, against him".

The Supreme Court in Jamatraj v. State of Maharashtra MANU/SC/0063/1967 : A.I.R. 1968 S.C. 178, while considering the sweep of Sec. 540. Cr.P.C. (Repealed Code) expressed itself:

"Statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness provided the just decision of the case demands it............If the Court has acted without the requirements of a just decision, the action is open to criticism but if the Court's action is supportable as being in aid of a just decision, the action cannot be regarded as exceeding the jurisdiction."

The Supreme Court in the aforesaid decision referred to Dora Harrig's case 1927-2KB 587. In that case five persons were tried, two for stealing and they pleaded guilty and three others for receiving who pleaded not guilty. The first two remained in the dock and the trial proceeded against the other three. They gave evidence on their own behalf and the prosecution case was not quite strong. The Recorder then asked one of the other two accused to give evidence and allowed the prisoner Dora, against whom the evidence went, to cross-examine him but Dora was not asked to enter the Box again to contradict the new evidence. This was held by the Court of Criminal Appeal to be a wrong exercise of the power of the Court. It was an extreme example of the exercise of the power.

4. The observations made in the aforesaid decisions go to indicate that once the court's action is supportable as being in aid of a just decision, no exception can be taken if the Magistrate ordered issue of summons to persons who were no longer before him as accused to be tried in the case against the revision petitioner alone. The learned Magistrate has expressed himself that the witnesses appear to be just witnesses and the petition is worth allowing to meet the ends of justice. These expressions can, in the context, be only construed to mean that the Magistrate felt that the examination of these witnesses is essential to the just decision of the case. This objection raised by the revision petitioner is accordingly rejected.

 IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD

Crl. R.C. No. 803/82

Decided On: 17.12.1983

N. Chennimaliay Vs. The Andhra Pradesh Marketing Corporation

Hon'ble Judges/Coram:

P. Ramachandra Raju, J.

 Citations

1984 MLJ CRI 1 4651984 ALT 1 3151984 APLJ HC 1 2371983 SCC ONLINE AP 1971984 AP LJ 1 2371984 CRI LJ NOC 139 531984 MLJ CRL 1 4651984 APLJ 1 237, MANU/AP/0245/1983

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Can accused joined under 319 of CrPC apply for discharge?

 Based on established legal precedent, an accused person summoned under Section 319 of the Criminal Procedure Code (CrPC) cannot apply for discharge under Section 227 of CrPC.

Legal Position

The Supreme Court in Jogendra Yadav vs. State of Bihar (2015) definitively held that an accused added under Section 319 CrPC cannot seek discharge under Section 227 CrPC. This position has been consistently followed by various High Courts, including the Allahabad High Court in recent cases.

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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

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Kerala HC: Accused prosecuted before Sessions or Special court can file discharge application within sixty days from the date of supply of copies of documents.

 But the crucial aspect is lack of clarity or legislative vacuum with regard to the starting point of sixty days to file discharge petition as per Section 250(1) of BNSS, in sessions cases where no committal is possible. In this connection, it is apropos to refer Section 262(2) of BNSS, deals with discharge of an accused in warrant trial cases which is pari materia to Section 239 of Cr.P.C. Section 262(1) is a new provision equivalent to Section 250(1) of BNSS. As per Section 262(1) of BNSS, the accused in a warrant trial case may prefer an application for discharge within a period of sixty days from the date of supply of copies of documents under Section 230.

Be it so, in sessions cases where committal doesn't arise,

because of the original jurisdiction conferred upon the Special

Courts referred herein above, the principle in Section 262(1) of

BNSS can be followed till the legislature makes the starting

point in such cases with clarity and certainty, by appropriate

amendment to Section 250(1) of BNSS. Thus in such cases, the

starting point of sixty days can be counted from the date of

supply of copies of documents. {Para 10}

IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.REV.PET NO. 879 OF 2024

SAJITH Vs  STATE OF KERALA

 Coram:  MR. JUSTICE A. BADHARUDEEN

Citation: 2024:KER:67663

Dated: 3rd day of September, 2024.

Read full Judgment here: Click here. 

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Kerala HC: The Sessions or Special Court Has Discretion U/ S. 250 of BNSS to Consider Discharge application of accused Even After Prescribed Limit Of 60 Days

It is discernible that in Section 250 of BNSS, Sub-section (1) provides that the accused may prefer an application for discharge within a period of sixty days from the date of commitment of the case under Section 232.

Sub-section (1) of Section 250 of BNSS is a new provision

which prescribes a period of sixty days to prefer an application

by the accused for discharge from the date of committal of the

case. In fact, no such time limit fixed in Section 227 of Cr.P.C.

But it is noticed that there is lack of clarity or legislative

vacuum in the matter of starting point of sixty days in Section

250(1) of BNSS. It is true that in cases where the procedure of

committal is necessary, the statutory wordings in Section

250(1) of BNSS regarding the starting point of sixty days, is so

clear. But, now a days many Special Courts, viz., Special Court

under the Narcotic Drugs and Psychotropic Substances Act, the

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, Special Court under the Protection of Children

from Sexual Offences Act, etc., proceedings are going before

the Special Court during the crime stage itself where committal

doesn't arise. In relation to such cases, the starting point to

count sixty days period to file discharge petition as provided in

Section 250(1) of BNSS lacks clarity or the same is a legislative

vacuum. In this context, it is relevant to refer Section 330 of

BNSS, a pari materia provision to Section 294 of Cr.P.C. Section

330(1) provides that where any document is filed before any

Court by the prosecution or the accused, the particulars of

every such document shall be included in a list and the

prosecution or the accused or the advocate for the prosecution

or the accused, if any, shall be called upon to admit or deny the

genuineness of each such document soon after supply of such

documents and in no case later than thirty days after such

supply. First proviso to Section 330(1) stipulates that the Court

may, in its discretion, relax the time limit with reasons to be

recorded in writing. The notable distinction is that in Section

330(1) of BNSS, the time limit is preceded by the word 'shall'

and in Section 250(1) of BNSS, the time limit is preceded by the

word 'may'. Thus, it is perceivable that when the legislature

uses the word 'shall', the same is mandatory and when the

word 'may' is used, the same is discretionary. The First proviso

to Section 330(1) of BNSS has been engrafted by the legislature

and the time limit of thirty days is preceded by the word 'shall'

makes the provision mandatory. Thus proviso to relax time

also was incorporated. In Section 250(1) of BNSS, the

legislature used the word 'may' which gives discretion to the

court to relax the time limit and therefore, no proviso to relax

the time limit was engrafted by the legislature. Therefore, even

after expiry of sixty days, a petition for discharge can be

considered by the court since the time limit is not mandatory

and is only directory. If so, the intent of the legislature to avoid

filing of discharge petition even at a belated stage in the strict

sense could not be achieved. {Para 9}

10. But the crucial aspect is lack of clarity or legislative vacuum with regard to the starting point of sixty days to file discharge petition as per Section 250(1) of BNSS, in sessions cases where no committal is possible. In this connection, it is apropos to refer Section 262(2) of BNSS, deals with discharge of an accused in warrant trial cases which is pari materia to Section 239 of Cr.P.C. Section 262(1) is a new provision equivalent to Section 250(1) of BNSS. As per Section 262(1) of BNSS, the accused in a warrant trial case may prefer an application for discharge within a period of sixty days from the date of supply of copies of documents under Section 230.

Be it so, in sessions cases where committal doesn't arise,

because of the original jurisdiction conferred upon the Special

Courts referred herein above, the principle in Section 262(1) of

BNSS can be followed till the legislature makes the starting

point in such cases with clarity and certainty, by appropriate

amendment to Section 250(1) of BNSS. Thus in such cases, the

starting point of sixty days can be counted from the date of

supply of copies of documents.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.REV.PET NO. 879 OF 2024

SAJITH Vs  STATE OF KERALA

 Coram:  MR. JUSTICE A. BADHARUDEEN

Citation: 2024:KER:67663

Dated: 3rd day of September, 2024

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Supreme Court Deplores Practice Of Filing Applications U/S 216 CrPC For Alteration Of Charge After Refusal Of Discharge

 It is trite to say that Section 216 is an enabling provision which enables the court to alter or add to any charge at any time before judgment is pronounced, and if any alternation or addition to a charge is made, the court has to follow the procedure as contained therein. Section 216 does not give any right to the accused to file a fresh application seeking his discharge after the charge is framed by the court, more particularly when his application seeking discharge under Section 227 has already been dismissed. Unfortunately, such applications are being filed in the trial courts sometimes in ignorance of law and sometimes deliberately to delay the proceedings. Once such applications though untenable are filed, the trial courts have no alternative but to decide them, and then again such orders would be challenged before the higher courts, and the whole criminal trial would get derailed. Suffice it to say that such practice is highly deplorable, and if followed, should be dealt with sternly by the courts. {Para 11}

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. ……..OF 2024

(@SPECIAL LEAVE PETITION (Crl.) No.2029 OF 2018

K. RAVI  Vs STATE OF TAMIL NADU & ANR. 

Author: BELA M. TRIVEDI, J.

Dated: AUGUST 29, 2024.

Citation: 2024 INSC 642.

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Under which circumstances the revisional court should not discharge accused?

Thus, this Court is of the firm opinion that if a strong suspicion exists in the mind of the court at the stage concerned, then the same is sufficient for the court to proceed with the framing of the charge against the accused person(s). And if a prayer for discharge has been made before a revisional court, then the same may only be allowed if the court finds that the materials on record are wholly insufficient for the purpose of trial. {Para 13}

 14. In view of the aforementioned precedential backdrop and the observations made hereinabove this Court does not find any legal infirmity in the impugned order passed by the learned court below so as to warrant any interference, at this stage.

 In the High Court of Rajasthan

(Before Pushpendra Singh Bhati, J.)

Sudhir Bordiya Vs State

S.B. Criminal Revision Petition No. 27 of 2021

Decided on April 20, 2022

Citation: 2022 SCC OnLine Raj 765 : (2022) 3 RLW 2010 : 2023 Cri LJ 96.

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Supreme Court: The court should consider plea of Accused On Applicability Of Section 300 CrPC before framing of the charge

At this stage, Section 227 Code of Criminal Procedure is required to be referred to, which reads as under:

227. Discharge - If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the Accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the Accused, he shall discharge the Accused and record his reasons for so doing.

7. On a fair reading of Section 227 Code of Criminal Procedure, if, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the Accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the Accused, he shall discharge the Accused and record his reasons for doing so. As per Section 228 Code of Criminal Procedure only thereafter and if, after such consideration and hearing as aforesaid, the Judge is of the opinion that there is ground for presuming that the Accused has committed an offence, the trial Court shall frame the charge. Therefore, as rightly submitted by Shri Siddhartha Dave, learned Senior Counsel appearing on behalf of the Appellant-Accused that the stage of discharge Under Section 227 Code of Criminal Procedure is a stage prior to framing of the charge (Under Section 228 Code of Criminal Procedure) and it is at that stage alone that the court can consider the application Under Section 300 Code of Criminal Procedure. Once the court rejects the discharge application, it would proceed to framing of charge Under Section 228 Code of Criminal Procedure.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2249 of 2022 

 Chandi Puliya Vs. The State of West Bengal

Hon'ble Judges/Coram:

M.R. Shah and C.T. Ravikumar, JJ.

Author:M.R. Shah, J.

Decided On: 12.12.2022

Citation: MANU/SC/1604/2022

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Whether the Magistrate can discharge accused if complainant public servant fails to remain present in the court for prosecuting his complaint?

  From the provisions referred to above it is clear, the law does not contemplate that once a complaint is filed by a public servant, he has discharged his duty and need not remain present in the Court. As pointed out in the decision in State of M. P. v. Kalu 1973 Jab LJ 224 : 1972 Cri LJ 1639, the prosecuting agency owes a duty to the accused who is prosecuted and to the Court which is required to dispense justice according to law. In this task it is entitled to the co-operation of all concerned. Dispensation of justice is, in a sense a team work and every one is expected to play his role properly. {Para 14}

15. A perusal of the proviso to Section 200 of the Code shows that where a public servant acting or purporting to act in the discharge of his official duties filed a written complaint, the Magistrate need not examine him and his witnesses. In the instant case the learned Magistrate exercising his discretion in favour of the complainant, had straightway ordered issue of process against the accused.

16. Justice has to be done to both the contending parties. In the instant case when the complainant did not appear on the several dates fixed for hearing of the case without any intimation and no steps were taken to produce the witnesses or request the Magistrate to grant further time for the purpose or to issue summons, it cannot be said that in exercising the judicial discretion in discharging the petitioner, the learned Magistrate has committed any error resulting in any miscarriage of justice. The Food Inspector ought to have taken necessary steps. No doubt, as pointed out in the decision in State of M. P. v. Ramsingh, 1976 Jab LJ 696 once the Court has ordered issue of summons to the witnesses it is duty bound to procure their attendance without the requirement of a fresh application for the purpose but such was not the situation in the case in hand. The decision in State of M.P. v. Nathulal 1983 M P W R 246 is also distinguishable.

17. It is well settled that the discretionary re visional jurisdiction has been conferred on the Courts so that they may step in and interfere in cases where there is flagrant miscarriage of justice and this power has to be exercised in exceptional cases. There is certainly no case for interference under Section 482 of the Code.

Madhya Pradesh High Court

State Of Madhya Pradesh vs Punamchand And Ors. on 29 July, 1986

Equivalent citations: 1987 CriLJ 1232

Bench: K Shrivastava

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Supreme Court: The expression "known sources of income" occurring in Section 5(1)(e) of The prevention of Corruption Act mean the sources known to the prosecution and not sources relied upon and known to the accused.

  Even after Section 5(3) was deleted and Section 5(1)(e) was enacted, this Court in the case of Wasudeo Ram Chandra Kaidalwar (supra) has observed that the expression "known sources of income" occurring in Section 5(1)(e) has a definite legal connotation which in the context must mean the sources known to the prosecution and not sources relied upon and known to the accused. Section 5(1)(e), it was observed by this Court, casts a burden on the accused for it uses the words "for which the public servant cannot satisfactorily account". The onus is on the accused to account for and satisfactorily explain the assets.

{Para 40}

The first part of the section casts a burden on the prosecution and the second on the accused. When Section 5(1)(e) uses the words "for which the public servant cannot satisfactorily account", it is implied that the burden is on such public servant to account for the sources for the acquisition of disproportionate assets. The High Court, therefore, was in error in holding that a public servant charged for having disproportionate assets in his possession for which he cannot satisfactorily account, cannot be convicted of an offence under Section 5(2) read with Section 5(1)(e) of the Act unless the prosecution disproves all possible sources of income.

IN THE SUPREME COURT OF INDIA 

CRIMINAL APPELLATE JURISDICTION

 CRIMINAL APPEAL NOS. 1452 – 1453 OF 2022 

STATE Vs  R. SOUNDIRARASU ETC.

 Coram: DINESH MAHESHWARI; J., J.B. PARDIWALA; J.

Author: J.B. PARDIWALA, J.

Dated: SEPTEMBER 5, 2022.

Read full Judgment here: Click here

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Whether the court can discharge accused in disproportionate asset case after considering documents produced by him?

The High Court could be said to have donned the role of a chartered accountant. This is exactly what this Court observed in the case of Thommandru Hannah Vijayalakshmi @ T.H. Vijayalakshmi (supra). The High Court has completely ignored that it was not at the stage of trial or considering an appeal against a verdict in a trial. The High Court has enquired into the materials produced by the accused persons, compared with the information complied by the investigation agency and pronounced a verdict saying that the explanation offered by the accused persons deserves to be accepted applying the

doctrine of preponderance of probability. This entire exercise has been justified on account of the investigating officer not taking into the explanation offered by the public servant and also not taking into consideration the lawful acquired assets of the wife of the public servant i.e. the Respondent No. 2 herein.

79. By accepting the entire evidence put forward by the accused persons applying the doctrine of preponderance of probability, the case put up by the prosecution cannot be termed as “groundless”. As observed by this Court in C.D.S. Swami (supra) that the accused might have made statements before the investigating officer as to his alleged sources of income, but the same, strictly, would not be evidence in the case.

80. Section 13(1)(e) of the Act 1988 makes a departure from the principle of criminal jurisprudence that the burden will always lie on the prosecution to prove the ingredients of the offences charged and never shifts on the accused to disprove the charge framed against him. The legal effect of Section 13(1)(e) is that it is for the prosecution to establish that the accused was in possession of properties disproportionate to his known sources of income but the term “known sources of income” would mean the sources known to the prosecution and not the sources known to the accused and within the knowledge of the accused. It is for the accused to account satisfactorily for the money/assets in his hands. The onus in this regard is on the accused to give satisfactory explanation. The accused cannot make an attempt to discharge this onus upon him at the stage of Section 239 of the CrPC. At the stage of Section 239 of the CrPC, the Court has to only look into the prima facie case and decide whether the case put up by the prosecution is groundless.

81. In the overall view of the matter, we are convinced that the impugned orders passed by the High Court are not sustainable in law and deserve to be set aside. The circumstances emerging from the record of the case, prima facie, indicate the involvement of the accused persons in the alleged offence. Having regard to the materials on record, it cannot be said that the charge against the accused persons is groundless. There are triable issues in the matter. If there are triable issues, the Court is not expected to go into the veracity of the rival versions.

IN THE SUPREME COURT OF INDIA 

CRIMINAL APPELLATE JURISDICTION

 CRIMINAL APPEAL NOS. 1452 – 1453 OF 2022 

STATE Vs  R. SOUNDIRARASU ETC.

 Coram: DINESH MAHESHWARI; J., J.B. PARDIWALA; J.

Author: J.B. PARDIWALA, J.

Dated: SEPTEMBER 5, 2022

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Whether the court can discharge accused based on cause of death mentioned in Post mortem report of deceased victim?

 What did the trial court do in the case on hand? We have no doubt in our mind that the trial court could be said to have conducted a mini trial while marshalling the evidence on record. The trial court thought fit to discharge the Accused persons from the offence of murder and proceeded to frame charge for the offence of culpable homicide Under Section 304 of the Indian Penal Code by only taking into consideration the medical evidence on record. The trial court as well as the High Court got persuaded by the fact that the cause of death of the deceased as assigned in the post mortem report being the "cardio respiratory failure", the same cannot be said to be having any nexus with the alleged assault that was laid on the deceased. Such approach of the trial court is not correct and cannot be countenanced in law. The post mortem report, by itself, does not constitute substantive evidence. Whether the "cardio respiratory failure" had any nexus with the incident in question would have to be determined on the basis of the oral evidence of the eye witnesses as well as the medical officer concerned i.e. the expert witness who may be examined by the Prosecution as one of its witnesses. To put it in other words, whether the cause of death has any nexus with the alleged assault on the deceased by the Accused persons could have been determined only after the recoding of oral evidence of the eye witnesses and the expert witness along with the other substantive evidence on record. The post mortem report of the doctor is his previous statement based on his examination of the dead body. It is not substantive evidence. The doctor's statement in court is alone the substantive evidence. The post mortem report can be used only to corroborate his statement Under Section 157, or to refresh his memory Under Section 159, or to contradict his statement in the witness-box Under Section 145 of the Evidence Act, 1872. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court. {Para 29}

30. The prosecution should have been given opportunity to prove all the relevant facts including the post mortem report through the medical officer concerned by leading oral evidence and thereby seek the opinion of the expert. It was too early on the part of the trial court as well as the High Court to arrive at the conclusion that since no serious injuries were noted in the post mortem report, the death of the deceased on account of "cardio respiratory failure" cannot be said to be having any nexus with the incident in question.

31. Whether the case falls Under Section 302 or 304 Part II, Indian Penal Code could have been decided by the trial court only after the evaluation of the entire oral evidence that may be led by the prosecution as well as by the defence, if any, comes on record. Ultimately, upon appreciation of the entire evidence on record at the end of the trial, the trial court may take one view or the other i.e. whether it is a case of murder or case of culpable homicide. But at the stage of framing of the charge, the trial court could not have reached to such a conclusion merely relying upon the post mortem report on record. The High Court also overlooked such fundamental infirmity in the order passed by the trial court and proceeded to affirm the same.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1041 of 2022

Decided On: 26.07.2022

Ghulam Hassan Beigh Vs. Mohammad Maqbool Magrey and Ors.

Hon'ble Judges/Coram:

A.M. Khanwilkar, Abhay Shreeniwas Oka and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Citation: MANU/SC/0920/2022

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Whether the court can discharge the accused if there is discrepancy between FIR and statement U/S 164 of CRPC?

The learned counsel for the petitioner emphatically argued that the FIR does not disclose offence under Section 376 of the IPC. The FIR is the initial document. In her statement given by the prosecutrix under Section 164 of the Code of Criminal Procedure (CrPC) after the prosecutrix attained majority, she categorically made statements which tantamount to offence under Section 376 of the IPC. Discrepancies between the FIR and any subsequent statement under Section 164 of the CrPC may be a defence. However, the discrepancies cannot be a ground for discharge without initiation of trial.There is no infirmity in the order of the High Court rejecting the criminal revisonal application.

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s). 9552/2021

HAZRAT DEEN  Vs THE STATE OF UTTAR PRADESH 

Date : 06-01-2022 This petition was called on for hearing today.

CORAM : HON'BLE MS. JUSTICE INDIRA BANERJEE

HON'BLE MR. JUSTICE J.K. MAHESHWARI

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