Bombay HC: The Session Judge must frame charge against against the under trial prisoners as early as possible and not beyond the period of six months from the date of filing of the chargesheet

6.5. In the result, all the Sessions Judges/Assistant Sessions Judgesin the State including Union Territories are directed to frame charge against the under trial prisoners as early as possible and not beyond the period of six months from the date of filing of the chargesheet. They shall not wait for draft charge from the office of the Public Prosecutor. The Sessions Judges/Assistant Sessions Judges are at liberty to pass specific orders, if there is/are dilatory tactics on the part of the under trial prisoner to prolong the stage of framing of charge.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL BAIL APPLICATION NO. 1575 OF 2024

Vijay Rajendra Bhosale Vs State of Maharashtra and Anr.

CORAM : SHIVKUMAR DIGE, J.

 DATED : 17 th OCTOBER, 2024.

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Supreme court: Order framing a charge is an interlocutory order

128. In view of the conclusion that the order framing a charge is an interlocutory order within the meaning of Section 11(1), the appeal against such an order is incompetent in view of the provision contained in Section 11(2), and therefore the preliminary objection must be upheld and the appeal 'is dismissed.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 562 of 1979

Decided On: 07.12.1979

V.C. Shukla Vs. State through C.B.I.

Hon'ble Judges/Coram:

A.P. Sen, D.A. Desai, P.N. Shinghal and S. Murtaza Fazal Ali, JJ.

Authored By : S. Murtaza Fazal Ali, P.N. Shinghal, D.A. Desai

Citations: 1980 AIR 962, 1980 SCR (2) 380,MANU/SC/0284/1979.

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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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Under which circumstances,the court should not convict accused for an offence U/S 376(2) of IPC relying on Whatsapp Chat between prosecutrix and accused?

 In this case, no charge was framed against the Appellant- Accused for the offence punishable under Clause (f) of Sub-section (2) of Section 376 of the Indian Penal Code. A perusal of Clause (f) of Sub-section (2) of Section 376 shows that the punishment for the offence covered by Sub-section (2) of Section 376 is more stringent than the punishment for the offence Under Sub-section (1) of Section 376. In the absence of the charge framed at any stage against the Appellant-Accused for the offence punishable under Clause (f) of Sub-section (2) of Section 376 of the Indian Penal Code, now, at this stage, neither the prosecution nor the victim can contend that Clause (f) of Sub-section (2) of Section 376 of the Indian Penal Code was applicable. Another important aspect which goes to the root of the matter is that in his examination Under Section 313 of the Code of Criminal Procedure, the case that he was in a position of trust to the victim, was not put to him. In any event, the contention of the learned Counsel appearing for the Prosecutrix that the Appellant-Accused was a person in a position of trust as far as the Prosecutrix is concerned is completely erroneous. There was no fiduciary relationship between the Appellant-Accused and the Prosecutrix, which will be apparent when we examine the Prosecutrix's evidence. Therefore, on the face of it, the presumption Under Section 114A of the Evidence Act will not apply, and, therefore, the burden will be on the prosecution to prove that the sexual intercourse was without the consent of the Prosecutrix. We may also add here that in our jurisprudence unless there is a specific legislative provision which puts a negative burden on the Accused, there is no burden on the Accused to lead evidence for proving his innocence. The Accused may have some burden to discharge in case of a statutory prescription, such as Section 114A of the Evidence Act. In this case, the burden was on the prosecution to lead evidence to prove the guilt of the Accused beyond a reasonable doubt. {Para 11}

21. Firstly, the learned Counsel appearing for the Prosecutrix admitted that the prosecution did not produce the WhatsApp messages before the recording of evidence commenced. According to his version, the same was produced when the Prosecutrix was under cross-examination. The essential ingredient of Sub-section (1) of Section 294 of the Code of Criminal Procedure is that when any document is produced by the prosecution or the Accused, the parties shall be called upon to admit or deny the genuineness of each such document. In this case, it is nobody's case that the Appellant-Accused was called upon to admit or deny the genuineness of the WhatsApp chats. Moreover, Sub-section (3) of Section 294 of the Code of Criminal Procedure indicates that even if a particular document is not disputed, the Court has the discretion to read or not to read the same in evidence without formal proof of the signature of the person to whom it purports to be signed. The Court always has the power to require the signature to be proved. Therefore, the contention of the learned Counsel appearing for the Prosecutrix based on Section 294 of the Code of Criminal Procedure has absolutely no merit. In any case, a certificate Under Section 65B of the Evidence Act has not been produced.

22. Therefore, in our considered opinion, the prosecution has failed to prove the Appellant's guilt beyond a reasonable doubt. Hence, the impugned orders cannot be sustained, and they are hereby quashed and set aside. The Appellant-Accused is acquitted of the charges framed against him.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1753/2023

Decided On: 21.03.2024

Pankaj Singh Vs. The State of Haryana

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and Ujjal Bhuyan, JJ.

Author: Abhay Shreeniwas Oka, J.

Citation:  MANU/SC/0254/2024.

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Whether the High court can quash charges framed against accused in criminal revision as per statements of some of prosecution witnesses?

On investigation, police questioned various witnesses and some of the witnesses including the brother of the deceased Sarita gave statements that after marriage Sarita started demanding share in the property of her husband and also there were quarrels between them on this count. Sarita in the first information statement stated that the accused demanded dowry from her. Therefore this is a case where there were allegations against the accused that they had demanded dowry from the complainant which might have provoked Sarita to commit suicide. It is true that as pointed out by the counsel for the respondent that certain witnesses had given statement to the police that Sarita had demanded partition of the family property and stated that if her demands were not considered, she would commit suicide. The crucial question is whether the suicide of Sarita was in any way connected with the demand for dowry. That is a matter to be considered by the Court by proper appreciation of evidence and at the stage of framing charges, the High Court should not have considered the whole evidence that there were no materials for the Court to frame charges under Sections 304-B and 498-A IPC. In view of the statements given by some of the witnesses, the High Court was not justified in quashing the charges already framed by the Sessions Court and directing the Sessions Court to frame charges exclusively for the offences under Section 306 IPC. {Para 3}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 592 of 1998

Decided On: 21.09.2004

Nemichand Jain Vs. Roshanlal and Ors.

Hon'ble Judges/Coram:

K.G. Balakrishnan and Dr. A.R. Lakshmanan, JJ.

Citation: (2004) 13 SCC 461,MANU/SC/1181/2004.

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Supreme Court disapproved Exercise of original powers of trial court by revisional court

The revision power under the code of Criminal procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the First Information Report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged. {Para 3}

 IN THE SUPREME COURT OF INDIA

Appeal (crl.) 1138 of 2001

Decided On: 06.11.2001

Munna Devi Vs. State of Rajasthan and Ors.

Hon'ble Judges/Coram:

M.B. Shah and R.P. Sethi, JJ.

Author: R.P. Sethi, J.

Citation: MANU/SC/0715/2001, (2001) 9 SCC 631

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Whether the appellate or revisional court should reverse any finding on account of any irregularity in sanction for prosecution if accused has not raised objection in that respect in the trial court?

 Sub-section (4) of Section 19 of the PC Act is also important in this context inasmuch as the time lapse in challenging an error, omission or irregularity in the sanction resulting in a failure of justice is of considerable significance. Unless the challenge is made at the initial stages of a trial and within a reasonable period of time, the court would not be obliged to consider the absence of, or any error, omission or irregularity in the sanction for prosecution. Therefore, it is not as if the Accused can, after an unreasonable delay, raise an issue about the sanction; but if that Accused does so, the court may not decide that issue both at the appellate stage as well as for the purposes of stay of the proceedings. {Para 66}

67. In Central Bureau of Investigation v. V.K. Sehgal   MANU/SC/0650/1999 : (1999) 8 SCC 501 it was held that for determining whether the absence of or any error, omission or irregularity in the grant of sanction has occasioned or resulted in a failure of justice, the court has a duty to consider whether the Accused had raised any objection on that score at the trial stage. Even if it had been raised at the trial and early enough, it would not be sufficient to conclude that there was a failure of justice. Whether in fact and in law there was a failure of justice would differ from case to case but it was made clear that if such an objection was not raised in the trial, it certainly cannot be raised in appeal or in revision. It was explained that a trial involves judicial scrutiny of the entire material before the Special Judge. Therefore, if on a judicial scrutiny of the evidence on record the Special Judge comes to a conclusion that there was sufficient reason to convict the Accused person, the absence or error or omission or irregularity would actually become a surplusage. The necessity of a sanction is only as a filter to safeguard public servants from frivolous or mala fide or vindictive prosecution. However, after judicial scrutiny is complete and a conviction is made out through the filtration process, the issue of a sanction really would become inconsequential. It was held in paragraphs 10 and 11 of the Report as under:

A court of appeal or revision is debarred from reversing a finding (or even an order of conviction and sentence) on account of any error or irregularity in the sanction for the prosecution, unless failure of justice had been occasioned on account of such error or irregularity. For determining whether want of valid sanction had in fact occasioned failure of justice the aforesaid Sub-section (2) enjoins on the court a duty to consider whether the Accused had raised any objection on that score at the trial stage. Even if he had raised any such objection at the early stage it is hardly sufficient to conclude that there was failure of justice. It has to be determined on the facts of each case. But an Accused who did not raise it at the trial stage cannot possibly sustain such a plea made for the first time in the appellate court......

In a case where the Accused failed to raise the question of valid sanction the trial would normally proceed to its logical end by making a judicial scrutiny of the entire materials. If that case ends in conviction there is no question of failure of justice on the mere premise that no valid sanction was accorded for prosecuting the public servant because the very purpose of providing such a filtering check is to safeguard public servants from frivolous or mala fide or vindictive prosecution on the allegation that they have committed offence in the discharge of their official duties. But once the judicial filtering process is over on completion of the trial the purpose of providing for the initial sanction would bog down to a surplusage. This could be the reason for providing a bridle upon the appellate and revisional forums as envisaged in Section 465 of the Code of Criminal Procedure.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1137 of 2017

Decided On: 13.07.2017

Girish Kumar Suneja Vs. C.B.I.

Hon'ble Judges/Coram:

Madan B. Lokur, Kurian Joseph and A.K. Sikri, JJ.

Author: Madan B. Lokur, J.

Citation: AIR 2017 SC 3620,MANU/SC/0829/2017.

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Supreme Court: Accused Cannot Invoke S.91 CrPC To Compel Prosecution To Produce Things At The Stage Of Framing Of Charge

 The learned counsel for the appellant- State has rightly

drawn the attention of this Court to the legal position

settled by this Court in the case of State of Orissa Vs.

Debendra Nath Padhi, (2005) 1 SCC 568, in which a Three

Judge Bench of this Court has held as under: -

“25. Any document or other thing envisaged

under the aforesaid provision can be ordered to

be produced on finding that the same is

“necessary or desirable for the purpose of

investigation, inquiry, trial or other

proceedings under the Code”. The first and

foremost requirement of the section is about

the document being necessary or desirable. The

necessity or desirability would have to be seen

with reference to the stage when a prayer is

made for the production. If any document is

necessary or desirable for the defence of the

accused, the question of invoking Section 91 at

the initial stage of framing of a charge would

not arise since defence of the accused is not

relevant at that stage. When the section refers

to investigation, inquiry, trial or other

proceedings, it is to be borne in mind that

under the section a police officer may move the

court for summoning and production of a

document as may be necessary at any of the

stages mentioned in the section. Insofar as the

accused is concerned, his entitlement to seek

order under Section 91 would ordinarily not

come till the stage of defence. When the

section talks of the document being necessary

and desirable, it is implicit that necessity

and desirability is to be examined considering

the stage when such a prayer for summoning and

production is made and the party who makes it,

whether police or accused. If under Section

227, what is necessary and relevant is only the

record produced in terms of Section 173 of the

Code, the accused cannot at that stage invoke

Section 91 to seek production of any document

to show his innocence. Under Section 91 summons

for production of document can be issued by

court and under a written order an officer in

charge of a police station can also direct

production thereof. Section 91 does not confer

any right on the accused to produce document in

his possession to prove his defence. Section 91

presupposes that when the document is not

produced process may be initiated to compel

production thereof.” {Para 6}

7. The learned counsel for the respondent has relied upon

the decision in the case of Nitya Dharmananda Vs. Gopal

Sheelum Reddy, (2018) 2 SCC 93, to submit that the court

being under the obligation to impart justice, is not

debarred from exercising its power under Section 91

Cr.P.C., if the interest of justice in a given case so

requires. However the said decision is not helpful to the

respondent. In the said decision also, it has been

observed that the accused cannot invoke and would not

have right to invoke Section 91 Cr.P.C. at the stage of

framing of charge. In view of the law laid down by the

Three Judge Bench in State of Orissa Vs. Debendra Nath

Padh i, (supra), we are inclined to accept the present

appeal.

8. In that view of the matter, the impugned order is set

aside. The Criminal Appeal stands allowed accordingly.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.856 OF 2024

STATE OF RAJASTHAN Vs SWARN SINGH @ BABA.

Dated: 12TH FEBRUARY, 2024.

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Bombay HC: The court should conceal identity of victim of an offence under Pocso Act while framing of charge,recording of evidence and statement of accused U/S 313 of CRPC

 It is noticed that while framing of charge, recording

evidence, recording statement of accused under section 313 of the

Code of Criminal Procedure, name of the victim is disclosed.

Therefore, while framing charge, mentioning name of the victim

should be avoided. Instead he/she should be referred to as ‘X’ or any other alphabet the Court deems ft and proper. While recording evidence if the witness mentions the name of the victim, the Court shall record that “the witness stated the name of the victim but to conceal her identity, her name is not recorded.” And the victim should be referred to in the same manner as is done during the framing of charge.{Para 16}

17. If the witness is a victim, his/her name should not be

disclosed while recording evidence. Her name, place of residence,

age, occupation shall be kept in a sealed cover and in the name

column, she can be referred in the same manner described while

framing charge keeping the address column, occupation column

blank.

18. The same procedure should be followed while recording

statement under section 313 of the Code of Criminal Procedure.

While recording statement under section 313 of the Code of Criminal Procedure, the Court shall refer the victim in the manner she is referred to while framing charge.

19. While forwarding remand report to the Magistrate or to

the court dealing with remand, mentioning of name of the victim

should be avoided. Instead she should be referred as ‘X’ or any other alphabet the Investigating Offcer deems ft and proper.

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

CRIMINAL PUBLIC INTEREST LITIGATION NO. 1 OF 2016

Sangita w/o Yeshwant Tanpure Vs The State of Maharashtra

CORAM : T.V. Nalawade & M.G. Sewlikar, JJ.

PRONOUNCED ON : 19th January, 2021.

JUDGMENT : ( PER M. G. SEWLIKAR, J.)

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Can the court direct further investigation against the accused even if the charge was framed against him?

12.3. Be that as it may, even according to the State investigating agency, the further investigation is required. As observed and held by this Court in the aforesaid decisions, the victim has a fundamental right of fair investigation and fair trial. Therefore, mere filing of the chargesheet and framing of the charges cannot be an impediment in ordering further investigation/re-investigation/de novo investigation, if the facts so warrant.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 13 of 2023

Decided On: 24.02.2023

 Anant Thanur Karmuse  Vs.  The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

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

Author: M.R. Shah, J.

Citation: MANU/SC/0165/2023

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Whether the charge framed against accused U/S 340 of CRPC is liable to be quashed if Magistrate follows the procedure of the complaint case?

  We are thus of the firm opinion that a Trial Magistrate, on receipt of a complaint under Section 340 and/or Section 341 of the Code, if there is a preliminary inquiry and adequate materials in support of the considerations impelling action under the above provisions are available, would be required to treat such complaint to constitute a case, as if instituted on police report and proceed in accordance with law. However, in absence of any preliminary inquiry or adequate materials, it would be open for the Trial Magistrate, if he genuinely feels it necessary, in the interest of justice and to avoid unmerited prosecution to embark on a summary inquiry to collect further materials and then decide the future course of action as per law. In both the eventualities, the Trial Magistrate has to be cautious, circumspect, rational, objective and further informed with the overwhelming caveat that the offence alleged is one affecting the administration of justice, requiring a responsible, uncompromising and committed approach to the issue referred to him for inquiry and trial, as the case may be. In no case, however, in the teeth of Section 343(1), the procedure prescribed for cases instituted otherwise than on police report would either be relevant or applicable qua the complaints under Section 340 and/or 341 of the Cr.P.C. {Para 58}

59. Reverting to the case in hand, the complaint was filed by the Trial Court stating that the respondent had committed an offence under Section 193 IPC, he having resorted to falsehood on oath at the trial in order to screen the accused from the crime and to enable him to escape punishment. The offence alleged is one included in Section 195(1)(b) of the Code and is otherwise, having regard to the punishment prescribed, to which, warrant procedure would be applicable. In course of the arguments, it had transpired that the Trial Magistrate had examined the complainant and some other witnesses before framing charge against the respondent under the above provision of law. The High Court by the order impugned however, to reiterate, had sustained the plea of the respondent that as the complaint ought to have been construed to be a case otherwise than on police report to which warrant procedure was applicable, charge could not have been framed as the prosecution had not adduced all its evidence at that stage, as required under Section 244 of the Cr.P.C. Significantly, no challenge has been made to the legality and/or the validity of the order under Section 340 or the complaint on any ground. It has also not been asserted in the course of arguments that the evidence already recorded is not sufficient to frame a charge, as had been done by the Trial Magistrate.

60. In view of the determination as above, the approach of the High Court is wholly indefensible, as in the face of Section 343(1) of the Cr.P.C., the procedure prescribed for cases instituted otherwise than on police report is not attracted qua a complaint under Section 340 and/or Section 341 of the Code. Even assuming that the Trial Magistrate had examined few witnesses in support of the complaint, it was in the form of a summary inquiry, to be satisfied as to whether the materials on record would justify the framing of charge against the respondent or not and nothing further. Any other view would fly in the face of the ordainment of Section 343(1) of the Cr.P.C. and thus cannot receive judicial imprimatur. The impugned judgment of the High Court in quashing the charge framed by the Trial Magistrate and remanding the case to him to follow the procedure outlined for cases, instituted otherwise than on police report, under Chapter XIX-B is on the face of it unsustainable in law and on facts. It is thus set aside. 

SUPREME COURT

ARUN MISHRA AND AMITAVA ROY, JJ.

State of Goa Vs. Jose Maria Albert Vales @ Robert Vales

Criminal Appeal Nos. 1427-1428 of 2017

18th August, 2017.

Citation: 2017 ALL SCR (Cri) 1590

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Whether court can allow accused to inspect documents kept in Malkhana?

 The issue raised in the present petition is to a great extent dealt by the Hon'ble Supreme Court in Suo Moto W.P.(CRL) No. 1/2017 wherein the Hon'ble Supreme Court issued guidelines regarding inadequacies and deficiencies in criminal trial and while the necessary draft rules were approved, in relation to the documents collected during the course of investigation and not relied upon by the prosecution thus not permitting copy thereof to the accused, the Hon'ble Supreme Court in Para 11 noted as under:

“11. The amici pointed out that at the commencement of trial, accused are only furnished with list of documents and statements which the prosecution relies on and are kept in the dark about other material, which the police or the prosecution may have in their possession, which may be exculpatory in nature, or absolve or help the accused. This court is of the opinion that while furnishing the list of statements, documents and material objects under Sections 207/208, Cr. PC, the magistrate should also ensure that a list of other materials, (such as statements, or objects/documents seized, but not relied on) should be furnished to the accused. This is to ensure that in case the accused is of the view that such materials are necessary to be produced for a proper and just trial, she or he may seek appropriate orders, under the Cr. PC. for their production during the trial, in the interests of justice. It is directed accordingly; the draft rules have been accordingly modified. [Rule 4(i)]”

10. Further, reproducing Section 91 Cr.P.C. in the footnote does not qualify the directions in Para 11 of the judgment for the reason Hon'ble Supreme Court in response to the suggestion of the learned amicus curiae pointed out that there may be material with the Police or the prosecution which may be exculpatory in nature, or absolve or help the accused, however the accused is kept in dark with the said material. Hon'ble Supreme Court clearly directed that while furnishing the list of statements, documents and the material objects under Section 207/208 Cr.P.C., the Magistrate should also ensure that a list of other materials (such as statements, or objects/documents seized, but not relied upon) should be furnished to the accused so as to ensure that in case the accused is of the view that such materials are necessary to be produced for a proper and just trial, she or he may seek appropriate orders under the Code of Criminal Procedure for their production during the trial. The draft Rules were accordingly modified and considering the efficacy of the draft Rules, the Hon'ble Supreme Court directed all High Courts to take expeditious steps to incorporate the said draft Rules 2021 as part of the Rules governing criminal trial within six months from the date of the order i.e. April 2020.

11. In view of the decision of the Hon'ble Supreme Court, CBI cannot take the plea that since the Rules have not been notified as yet pursuant to the decision of the Hon'ble Supreme Court, the directions as laid down in Para 11 of the judgment whereby the draft Rules were amended, would not have the force of law till the Rules are notified. Hon'ble Supreme Court also noted that Draft Rules of Criminal Practice 2020 as formulated and directed to be notified were not contrary to the provisions of Cr.P.C. 

13. In the present case after the Court has taken the cognizance and is in the process of supplying documents, applications have been filed under Section 207 Cr.P.C. wherein to ensure a fair trial, the impugned order has been passed by the learned Special Court keeping due regard to the fact that at that stage it was deciding neither the relevancy of the unrelied documents nor whether they were of sterling quality.

15. Further contention of CBI is that the documents can be sought under Section 91 Cr.P.C. only at the stage of defence and hence the stage for seeking inspection of the un-relied documents in possession of the CBI and kept in CBI Malkhana has not arrived. It is trite law that an accused can build the defence not only by leading defence evidence but even while cross-examining the prosecution witness. Further, a document which is relevant and is of sterling quality can also be looked into by the Court at the time of framing of charge and the Court is not barred to exercise its power to summon or rely upon the said document at the stage of charge, if it is of sterling quality and has a crucial bearing on the issue of framing of charge. Therefore, at the time of framing of charge an accused can bring to the notice of the Court that an un-relied document recovered during the course of investigation and kept back by the investigating agency is relevant and has a bearing on the prosecution case only if the accused is aware of the said document.

16. Indubitably, while passing an order of inspection of unrelied upon documents, the Court is bound to strike a balance between the competing interest of ensuring a fair trial to the accused as also maintaining the sanctity of further investigation, in case further investigation is to be carried on. 

18. In the decision reported as (2012) 9 SCC 771 V.K. Sasikala v. State Hon'ble Supreme Court noted a common feature that seizure of a large number of documents takes place in the course of investigation in a criminal case and that after completion of the process of investigation and before submission of the report under Section 173 Cr.P.C., the investigating officer is bound to apply its mind to the two sets of documents i.e. the one which support the prosecution case and the other which support the accused, however it is not impossible to visualise a situation where the documents favouring the accused are not forwarded to the Court, even though the prayer in the said case was in relation to the documents forwarded to the Court but not relied by the prosecution.

19. Further, Clause 12.32 of the CBI (Crime) Manual 2020 also lays down the procedure of inspection of documents kept in the Malkhana on Court order. Thus Clause 12.32 of the CBI (Crime) Manual 2020 recognizes the right of the accused to carry out inspection as per the procedure laid down in the Manual of the CBI.

20. In view of the discussion aforesaid and the judgment of the Hon'ble Supreme Court in Suo Moto W.P.(CRL) No. 1/2017 this Court finds no infirmity in the impugned order passed by the learned Special Judge.

In the High Court of Delhi at New Delhi

(Before Mukta Gupta, J.)

Central Bureau of Investigation Vs INX Media Pvt. Ltd. and Others 

Crl.M.C. 1338/2021 and Crl.M.A. 7654/2021(stay)

Decided on November 10, 2021,

Citation: 2021 SCC OnLine Del 4932

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Is it possible to frame a charge against accused for abetment of suicide and in the alternative for committing murder?

   Here in this case, learned Judge has framed the charge under Section 302 of IPC and in alternative under Section 306. Insofar as alternative charge under Section 306 is concerned; it may be stated that offence under Section 302 and Section 306 are distinct. Its ingredients are altogether different. The framing of charge under Section 302, and in alternative under Section 306 is not permissible inasmuch as when there is doubt as to facts, Section 221 of Cr.P.C. has no application. In the case of Prasoon Gupta and Ors. Vs. The State of U.P. 2010 SCC OnLine All 1887; the Hon’ble Apex Court has held that the question framing of charge in alternative can arise, when there is no doubt about the facts, which can be proved but doubt is as to what offence will be constituted on those facts. It is not permissible in law, to frame a charge for accused having abetted the suicide and a charge in alternative of murder, as it shows doubt as to facts. The offence under Sections 306 and 302 are diametrically opposed to each other. The ingredients of two Sections are different, the framing of the charge in alternative charge under Section 302 as directed, is likely to prejudice the accused Applicants. {Para 7}

12. Undoubtedly, in view of the judgment of the Hon’ble Apex Court in the case of Prasoon Gupta (supra) and in consideration of the facts of the case, the learned Additional Sessions Judge could not have frame the charge under Section 302 and alternative the charge under Section 306 of IPC. Thus, the order to the extent framing the charge alternatively under Section 306 of IPC against the accused No. 1 and 2 is quashed and set aside. Only to this extent, the application is allowed. Needless to say that Prosecution shall proceed to try the Applicants for the offences punishable under Section 302 of IPC.

Bombay High Court

JUSTICE SANDEEP K. SHINDE

Sabirabano Yusuf Sayyad & Anr. Vs. The State of Maharashtra

Criminal Application (APL) No. 125 / 2020

24th November 2021

Citation: 2021 NearLaw (BombayHC) Online 2189

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Whether court can disclose identity of Rape victim while framing charge?

 It is further argued that the learned Session Judge has not stated the particulars regarding the time, place and name of the person against whom the offence had been committed. Hence, there is a violation of section 228A of Indian Penal Code in as much as the name of the victim has not been mentioned. The name of a Rape victim should not be disclosed, ofcourse, unless it is absolutely unavoidable, as for example when framing the charge, the identity of the victim may be disclosed. In fact, it is the requirement of law that the accused shall have the clear idea of the person against whom the offence is committed. That charge of Rape in respect of two girls not stating names of accused who ravished a particular girl is defective in the eyes of law.{Para 43}

Bombay High Court

JUSTICE SMT. SADHANA S. JADHAV JUSTICE PRITHVIRAJ K. CHAVAN

The State Of Maharashtra Vs. Vijay Mohan Jadhav @ Nanu & ORS.

CONFIRMATION CASE NO. 2 OF 2014

25th November 2021

Author: SMT. SADHANA S. JADHAV, J.

Citation: 2021 NearLaw (BombayHC) Online 2203

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Whether court should frame charge against accused for robbery or dacoity as per S 397 of IPC if weapon is not recovered from him?

 The fact that the weapon has not been recovered is no ground for not framing charges under Section 397 IPC. The effect of non recovery of the weapon would be seen only in trial and that cannot be a reason for not framing charges under Section 397 IPC.

 IN THE HIGH COURT OF DELHI AT NEW DELHI 

CRL.REV.P. 108/2021

 STATE Vs  HASSAN AHMED

CORAM: HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD, J.

Date of decision: 08th November, 2021

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Can the court charge the accused for an offence under POCSO Act if she fails to report to the police about a crime against a child?

 It is submitted by the counsel for the applicant that the

applicant is working as a Counsellor and during her routine

inspection of Ashram Shanti Niketan Balika Grih, Birla Nagar,

Hazira, Gwalior, the prosecutrix, who is mentally retarded minor

and is staying in the Ashram informed that Jain Baba posted in the said Ashram was continuously violating her sexually.

3. During the course of investigation, it was found that the

applicant was aware of the physical violation of the minor

prosecutrix, who was mentally retarded, and in spite of that, she

did not take any action against Jain Baba. When the applicant saw misdeeds of Jain Baba, then instead of taking any action against the co-accused Jain Baba, she simply requested him not to do the said act.

9. The allegations are that the applicant was a Counsellor and it

was her duty to ensure the security of the girls as well as to counsel them. The allegations are that in spite of getting the knowledge about the misdeeds of co-accused Jain Baba, she did not take any action whereas as per Section 19(1) of the POCSO Act, according to which, her duty was to inform the Special Juvenile Police Unit or the local police. Non-communication of information as required under Section 19(1) of the POCSO Act is a punishable offence, which may extend to six months. Further, Section 16 of the POCSO Act defines abetment which provides that either prior to or at the time of commission of act, if somebody does anything to facilitate the commission of that act and thereby facilitates the commission thereof, then it can be said to aid the doing of that act.

10. When the applicant had already seen the co-accused with the

prosecutrix and the prosecutrix has specifically alleged that she

was being ravished by the co-accused and instead of informing the local police, it is alleged that the applicant had simply requested the co-accused not to indulge himself in such an act, then it would certainly come within the definition of abetment as the act of the applicant amounts to aiding the co-accused for doing the act of rape on the prosecutrix. Further, it is well established principle of law that a roving and detailed enquiry or meticulous appreciation of evidence is not required at the stage of framing of charge. Even the grave suspicion is sufficient to frame charge for trial.

 THE HIGH COURT OF MADHYA PRADESH

CRR No. 2020/2021

Smt. Mamta Tiwari Vs. State of MP and anr.

Gwalior, Dated: 02.09.2021

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Whether court can convict an accused of a minor offence if he charged for a major offence?

 28. We may also make a reference to another three-Judge Bench judgment of this Court in the case of Shamnsaheb M.

Multtani vs. State of Karnataka [(2001) 2 SCC 577] which was not noticed in the case of Dalbir Singh (supra). In that case, the accused initially had been charged with an offence under  Section 302 IPC but was convicted for an offence under Section 304B IPC as according to the High Court there was no failure of justice. This Court found error in the judgment of the High Court convicting the accused of an offence under Section 304B as the accused was not put at notice of the adverse presumption that the Court is statutorily bound to draw on satisfaction of two ingredients of Section 304-B.

Therefore, this Court remanded the matter. It also noticed the conflict of views expressed in the cases of Lakhjit Singh (supra) and Sanagaraboina Sreenu (supra) and mentioned that in `cognate offences', the main ingredients are common and the one amongst them that is punishable with a lesser sentence can be regarded as a minor offence. The Court, finding that the ingredients of Sections 302 and 304B are different, held as follows:

"15. Section 222(1) of the Code deals with a case "when a person is charged with an offence consisting of several particulars". The section permits the court to convict the accused "of the minor offence, though he was not charged with it". Sub-section (2) deals with a similar, but slightly different situation.

"222. (2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it."

16. What is meant by "a minor offence"

for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-`-vis the other offence.

17. The composition of the offence under Section 304-B IPC is vastly different from the formation of the offence of murder under Section 302 IPC and hence the former cannot be regarded as minor offence vis-`-vis the latter. However, the position would be different when the charge also contains the offence under Section 498-A IPC (husband or relative of husband of a women subjecting her to cruelty). As the word "cruelty" is explained as including, inter alia, "harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand".

18. So when a person is charged with an offence under Sections 302 and 498-A IPC on the allegation that he caused the death of a bride after subjecting her to harassment with a demand for dowry, within a period of 7 years of marriage, a situation may arise, as in this case, that the offence of murder is not established as against the accused. Nonetheless, all other ingredients necessary for the offence under Section 304-B IPC would stand established. Can the accused be convicted in such a case for the offence under Section 304-B IPC without the said offence forming part of the charge?

XXX XXX XXX

30. But the peculiar situation in respect of an offence under Section 304-B IPC, as discernible from the distinction pointed out above in respect of the offence under Section 306 IPC is this:

Under the former the court has a statutory compulsion, merely on the establishment of two factual positions enumerated above, to presume that the accused has committed dowry death. If any accused wants to escape from the said catch the burden is on him to disprove it. If he fails to rebut the presumption the court is bound to act on it.

31. Now take the case of an accused who was called upon to defend only a charge under Section 302 IPC. The burden of proof never shifts onto him. It ever remains on the prosecution which has to prove the charge beyond all reasonable doubt. The said traditional legal concept remains unchanged even now. In such a case the accused can wait till the prosecution evidence is over and then to show that the prosecution has failed to make out the said offence against him.

No compulsory presumption would go to the assistance of the prosecution in such a situation. If that be so, when an accused has no notice of the offence under Section 304-B IPC, as he was defending a charge under Section 302 IPC alone, would it not lead to a grave miscarriage of justice when he is alternatively convicted under Section 304-B IPC and sentenced to the serious punishment prescribed thereunder, which mandates a minimum sentence of imprisonment for seven years.

32. The serious consequence which may ensue to the accused in such a situation can be limned through an illustration: If a bride was murdered within seven years of her marriage and there was evidence to show that either on the previous day or a couple of days earlier she was subjected to harassment by her husband with demand for dowry, such husband would be guilty of the offence on the language of Section 304-B IPC read with Section 113-B of the Evidence Act. But if the murder of his wife was actually committed either  by a dacoit or by a militant in a terrorist act the husband can lead evidence to show that he had no hand in her death at all. If he succeeds in discharging the burden of proof he is not liable to be convicted under Section 304-B IPC. But if the husband is charged only under Section 302 IPC he has no burden to prove that his wife was murdered like that as he can have his traditional defence that the prosecution has failed to prove the charge of murder against him and claim an order of acquittal.

Reportable

Supreme Court of India

Rafiq Ahmed @ Rafi vs State Of U.P on 4 August, 2011

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Whether revision is maintainable against the order of framing of charge or discharge of accused?

 The correct position of law as laid down in Madhu Limaye

(supra), thus, is that orders framing charges or refusing

discharge are neither interlocutory nor final in nature and are

therefore not affected by the bar of Section 397 (2) of CrPC. That

apart, this Court in the above cited cases has unequivocally

acknowledged that the High Court is imbued with inherent

jurisdiction to prevent abuse of process or to secure ends of

justice having regard to the facts and circumstance of individual

cases. As a caveat it may be stated that the High Court, while

exercising its aforestated jurisdiction ought to be circumspect.

The discretion vested in the High Court is to be invoked carefully

and judiciously for effective and timely administration of criminal justice system. This Court, nonetheless, does not recommend a complete hands off approach. Albeit, there should be interference, may be, in exceptional cases, failing which there is likelihood of serious prejudice to the rights of a citizen. For

example, when the contents of a complaint or the other

purported material on record is a brazen attempt to persecute an

innocent person, it becomes imperative upon the Court to

prevent the abuse of process of law. {Para 15}

16. Further, it is well settled that the trial court while considering

the discharge application is not to act as a mere post office. The

Court has to sift through the evidence in order to find out

whether there are sufficient grounds to try the suspect. The court

has to consider the broad probabilities, total effect of evidence

and documents produced and the basic infirmities appearing in

the case and so on. [Union of India v. Prafulla Kumar

Samal(1979) 3 SCC 4]. Likewise, the Court has sufficient discretion to order

further investigation in appropriate cases, if need be.

17. This brings us to the present case wherein the High Court has

not gone into the merits of the case and did not analyze the

case in light of the settled law referred to above.

18. The High Court has committed jurisdictional error by not

entertaining the revision petition on merits and overlooking the

fact that ‘discharge’ is a valuable right provided to the accused.

In line with the fact that the High Court and the court below

have not examined the fairness of criminal investigation in this

case and other related aspects concerning improvement of

witness statements, it is necessary for the High Court to

reconsider the entire matter and decide the revision petition

afresh. Accordingly, we set aside the impugned order dated

28.11.2018 and remand the case back to the High Court for its

reconsideration in accordance with law.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.472 OF 2021

Sanjay Kumar Rai  Vs State of Uttar Pradesh & Anr. 

Author: Surya Kant, J:

DATED : 07.05.2021

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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.

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Whether court can convict accused with the aid of S 34 of IPC if the court has framed charge against accused U/S 149 of IPC?

 In fact, the law on this point has continuously been delved into and reiterated by this Court from time to time. A three Judge

Bench of this Court in Karnail Singh v. State of Punjab AIR 1954 SC 204., held that:

“8. It is true that there is substantial difference between the two

sections but as observed by Lord Sumner in Barendra Kumar

Ghosh v. Emperor I.L.R. 52 Cal. 197, they also to some extent

overlap and it is a question to be determined on the facts of each

case whether the charge under section 149 overlaps the ground

covered by section 34. If the common object which is the subject matter of the charge under section 149 does not necessarily

involve a common intention, then the substitution of section 34 for section 149 might result in prejudice to the accused and ought not therefore to be permitted.

But if the facts to be proved and the evidence to be

adduced with reference to the charge under section 149

would be the same if the charge were under section 34,

then the failure to charge the accused under section 34

could not result in any prejudice and in such cases the

substitution of section 34 for section 149 must be held to

be a formal matter.”

(emphasis supplied)

20. The above extracted position of law was further concretised in

Willie (William) Slaney v. State of MP  AIR 1956 SC 116, ¶ 49. and by the majority in Chittarmal v. State of Rajasthan (2003) 2 SCC 266, ¶ 14.. The permissibility of convicting an accused individually under a simplicitor provision after group conviction

with the aid of Section 149 of IPC fails, was further explored in

Atmaram Zingaraji v. State of Maharashtra (1997) 7 SCC 41., wherein this Court

held that:

“4. The next question that falls for our determination is whether,

after having affirmed the acquittal of all others, the High Court

could convict the appellant under Section 302, I.P.C. (simpliciter).

The charges framed against the accused (quoted earlier) and the

evidence adduced by the prosecution to bring them home clearly

indicate that according to its case, the nine persons arraigned

before the trial Court and,  none others, either named or

unnamed (totalling minimum five or more persons) formed

the unlawful assembly. Consequent upon the acquittal of the other

eight the appellant could not be convicted with the aid of Section

149, I.P.C., more particularly, in view of the concurrent findings of

the learned Courts below that the other eight persons were not in

any way involved with the offences in question.

5. The same principle will apply when persons are tried with the

aid of Section 34, I.P.C. In the case of Krishna v. State of

Maharashtra [1964]1SCR678 , a four Judge Bench of this Court

has laid down that when four accused persons are tried on a

specific accusation that only they committed a murder in

furtherance of their common intention and three of them are

acquitted, the fourth accused cannot be convicted with the aid of

Section 34, I.P.C. for the effect of law would be that those who

were with him did not conjointly act with the fourth accused in committing the murder.

6. In either of the above situations therefore the sole convict can

be convicted under Section 302, I. P. C. (simpliciter) only on proof of the fact that his individual act caused the death of the victim. To put it differently, he would be liable for his own act only.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 38 of 2011

Rohtas Vs Vs  State of Haryana 

Author: Surya Kant, J:

Dated: 10.12.2020

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