Beyond the Panchnama: Untangling Seizure, Recovery and Discovery Under the BNSS and BSA

 A practitioner's guide to three words that are often used interchangeably in FIRs, charge-sheets and judgments — but which carry three distinct legal consequences.

Few triads in criminal law are as loosely used, and as consequential when misunderstood, as seizure, recovery and discovery. Investigating officers write them almost as synonyms in case diaries and seizure memos. Yet each term occupies a separate compartment in the evidentiary architecture, and conflating them can weaken an otherwise sound prosecution — or, conversely, let a defective one slip through unchallenged. With the Bharatiya Nagarik Suraksha Sanhita (BNSS) and the Bharatiya Sakshya Adhiniyam (BSA) now governing procedure and evidence, and with the new mandate of audio-video recording of searches, it is worth revisiting these concepts with precision — and with reference to how courts in 2026 have already begun applying them.

Three Words, Three Legal Consequences

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Contradictions Are Not Evidence: Supreme Court Reiterates the Limits of Sections 161, 162,164 of CrPC and Section 145 Evidence Act

⚖️ “In criminal law, contradictions may bend credibility, but they cannot build conviction.”

“Contradictions weaken, but never convict.”

One of the most frequent confusions in criminal trials is the evidentiary value of police statements and recorded contradictions. In its recent decision in Mahabir & Ors. v. State of Haryana (Criminal Appeal Nos. 5560–5561 of 2024, decided 29 January 2025, MANU/SC/0122/2025), the Supreme Court once again clarified that contradictions drawn from police statements are not substantive evidence and cannot form the foundation of a conviction.

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The Limited Role of Police Statements

During investigation, statements of witnesses are recorded under Section 161 CrPC. However, under Section 162 CrPC, these statements are expressly barred from use in evidence, except for the limited purpose of contradiction.

This contradiction can only be brought in through Section 145 of the Indian Evidence Act, which allows the defence or prosecution (with the court’s permission) to confront a witness with prior inconsistent statements. Crucially:

• These contradictions do not themselves prove the fact in issue.

• Their role is only to test the credibility and reliability of the witness who has resiled.

The Process of Proving Contradictions

For a contradiction to have any legal effect, strict compliance with Section 145 of the Evidence Act is required:

1. The witness must be confronted with the specific portion of the prior statement.

2. If the witness denies making it, the Investigating Officer must be examined to prove that such a statement was indeed made.

3. Even after being “proved,” the contradiction remains only a credibility check—not independent evidence of the facts stated therein.

The Court warned that trial judges cannot use police statements on their own motion as if they were evidence. They become relevant only after being “duly proved” in the prescribed manner.

What About Section 164 CrPC Statements?

Interestingly, the Court extended this principle even to statements recorded by a Magistrate under Section 164 CrPC. While these are procedurally more reliable than police statements, they too do not attain the character of substantive evidence. Their use remains limited to:

• Corroboration (if consistent with court testimony), or

• Contradiction (if inconsistent with court testimony).

But, standing alone, a Section 164 statement cannot secure a conviction.

Why This Matters

The Supreme Court’s insistence is founded on the basic principle of criminal jurisprudence: a man cannot be convicted unless there is substantive evidence, given under oath, tested by cross-examination in court.

Contradictions highlight inconsistency or unreliability, but they cannot supply the missing substantive evidence. In absence of credible, positive evidence, mere contradictions—whether from police diaries or Magistrate-recorded statements—cannot establish guilt beyond reasonable doubt.

Practical Implications for Trials

• For Prosecutors: A hostile witness must not be left with a few mechanical suggestions. Proper and meaningful cross-examination is essential to test the truth.

• For Defence: The use of contradictions is a weapon to discredit, not to substitute for substantive evidence.

• For Judges: It is vital to ensure contradictions are proved as per procedure, and equally vital not to treat them as substantive proof.

The Core Point

The Supreme Court is saying that contradictions—whether drawn from:

• Section 161 CrPC statements (statement to police during investigation), or even

• Section 164 CrPC statements (statement/confession recorded before a Magistrate),

cannot be treated as substantive evidence by themselves.

1. What is “Substantive Evidence”?

• Substantive evidence = evidence that the court can directly rely upon to establish a fact in issue.

• Example: a witness testifying under oath in court about what they saw, or documentary evidence duly proved.

• It is the real backbone of conviction or acquittal.

2. What are “Contradictions under Section 145 Evidence Act”?

• Section 145 Evidence Act allows a witness to be cross-examined with his earlier written statement.

• The earlier statement is not evidence in itself—it serves only a limited role: to show that the witness is inconsistent, unreliable, or untruthful.

• Example:

  • Witness in court says: “I saw A stab B.”

  • In his 161 CrPC statement to police, he had said: “I did not see who stabbed B.”

  • Defence can use Section 145 to contradict him.

  • This contradiction affects credibility but does not prove the fact of who stabbed B.

Thus, the contradiction is only a tool for testing reliability, not independent evidence of the incident.

3. Why Even Section 164 CrPC Statements Are Not “Substantive”

• Section 164 CrPC allows a Magistrate to record witness statements or confessions voluntarily.

• The logic: Since they are not made in court (under oath and subject to cross-examination), they too cannot be treated as substantive evidence.

• They may be used to:

  • Corroborate testimony (if consistent), or

  • Contradict testimony (if inconsistent),
    but they do not by themselves establish guilt or innocence.

4. What the SC is Cautioning Against in Para 81 of said judgment

• Trial courts and High Courts must not fall into the trap of using contradictions as if they were “positive evidence.”

• Even if a contradiction is proved through the Investigating Officer or by confronting the witness, it only “weakens credibility”; it does not “add new facts” into the evidentiary record.

• A conviction cannot rest solely on contradictions. There must be substantive evidence—like direct testimony, supported by corroboration if available.

Illustration

Let’s imagine:

• Prosecution witness says in court: “I did not see the murder.”

• Police statement (161 CrPC): “I saw the accused stab the victim.”

Even if the court says “Aha! The witness is contradicting himself,” it cannot convict the accused based on this police statement. The statement is not evidence—it only shows that the witness is unreliable.

The conviction still needs positive, substantive testimony or other forms of admissible evidence.

 In summary:

Para 81 of said judgment highlights a very important evidentiary principle: Contradictions (under Section 145 Evidence Act) and even prior statements (under Section 164 CrPC) are not substantive evidence. They serve only as credibility tests—not proof of guilt. Conviction must be based solely on substantive legal evidence given under oath in court, not on investigative paperwork or prior statements.

Conclusion

The message from the Supreme Court in Mahabir v. State of Haryana is unequivocal: Contradictions are not evidence. Whether under Section 145 of the Evidence Act, or even when a statement is recorded under Section 164 CrPC, these materials serve only a collateral purpose. Ultimately, convictions must rest on substantive evidence given before the trial court under oath.

This ruling is a timely reminder for trial courts and High Courts not to blur the boundaries between contradiction and evidence—and for prosecutors to rise above perfunctory cross-examinations when dealing with hostile witnesses.

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Supreme Court: Accused Entitled To Bail If Arrest Was In Breach Of Sections 41, 41A CrPC

 b) The investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued by this Court in Arnesh Kumar (supra). Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action.

c) The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the Code. Any non-compliance would entitle the Accused for grant of bail.

IN THE SUPREME COURT OF INDIA

Miscellaneous Application No. 1849 of 2021 in Special Leave Petition (Crl.) No. 5191 of 2021 

 Satender Kumar Antil  Vs. Central Bureau of Investigation and Ors.

Hon'ble Judges/Coram:

Sanjay Kishan Kaul and M.M. Sundresh, JJ.

Author: M.M. Sundresh, J.

Decided On: 11.07.2022

Citation: MANU/SC/0851/2022.

Read full judgment here: Click here.

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Bombay HC: How to appreciate evidence in offence Under S 498A of IPC if there was demand of money without harassment for getting that money?

  Informant has thereafter stated that her husband and

parents-in-law were asking her to bring amount of Rs.5,00,000/-

for getting permanency in employment of husband with Nagar

Parishad. She told them that her parents are poor and unable to

give the amount. Then applicant Nos.1 to 3 responded that if she

is unable to bring the amount, then she should not come for

cohabitation and on that count, she was harassed mentally and

physically time and again. Again the acts amounting to “physical

and mental cruelty” are not given. Statement that unless she

brings the amount she should not come for cohabitation without

any action will not amount to mental and physical harassment.

When the alleged demand is made has also not approximately

stated and for how much period the said demand persisted has

not been stated. She then states that she gave information about

the treatment given to her and her father who had in turn given

that information to their relative. All of them had come and tried

to persuade accused persons, but there was no settlement.

According to the informant since that date the accused persons

intensified harassment. Again the details are lacking. Then she

directly states that when she was in her parental house,

applicant No.1 went there and abused her. Thereafter, the other

accused persons i.e. applicant Nos.4 to 7 instigated applicant

Nos.1 to 3 for not to allow cohabitation of the informant with

applicant No.1. Threat was given that if she is unable to bring

the money then she will not be allowed to stay with them and she

would be killed. All these allegations are vague. When that

statement was made has also not been stated. As earlier stated it

is to be noted that she got married on 24.06.2022 and FIR has

been lodged on 24.07.2023. That means the married life of which

narration has been given is of just more than one year. Out of

that three months she was treated properly and when she

returned to the parental home has not been stated. Statements

of the witnesses are on the same line. All the witnesses have also

kept those facts vague as they are. Neither the details about the

alleged cruelty have been given, nor the date on which there was

a meeting and when the informant came to the parental home

has been stated. The statements of the witnesses are copy paste

and it appears that the investigating officer has made maximum

use of the computer, of course which is not for good reasons.

There cannot be statement in the form of copy paste paragraph to paragraph without difference in punctuations and fonts also.

Unnecessarily energy has been wasted in drawing panchanama of the house of applicant No.1 and even photographs have been

taken on the mobile and then certificate under Section 65-B of

Indian Evidence Act has been given. {Para 4}.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPLICATION NO.3263 OF 2023

Mohammad Muddassar Vs The State of Maharashtra

 CORAM : SMT. VIBHA KANKANWADI &

 ROHIT W. JOSHI, JJ.

 PRONOUNCED ON : 10 JANUARY 2025

ORDER (Per Smt. Vibha Kankanwadi, J.) :-

Citation: 2025:BHC-AUG:594-DB.

Read full Judgment here: Click here.

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Bombay HC: Whether in offences U/S 498A of IPC, investigating officer must make inquiry from the neighbours of the matrimonial home and record their statement?

We are constrained to observe that police officials are not

investigating such cases in the manner they are required to.

There is no sensitivity that is shown, nor proper procedure is

adopted. Statements in the nature of copy paste is the example

of non application of mind by the investigating officer (as he is

supposed to apply his mind even while taking statement under

Section 161 of the Code of Criminal Procedure) and insensitivity.

They do not make inquiry to the neighbours of the matrimonial

home. Statements are always recorded of the witnesses who are

either relatives of the wife or neighbours where her parents are

residing. Of course the lady would disclose the treatment that is

given to her parents and the relatives at the first place and their

statements would then be important, however, the other

possibilities involved and any other piece of evidence if available

is not at all considered by the investigating officers. {Para 5}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPLICATION NO.3263 OF 2023

Mohammad Muddassar Vs The State of Maharashtra

 CORAM : SMT. VIBHA KANKANWADI &

 ROHIT W. JOSHI, JJ.

 PRONOUNCED ON : 10 JANUARY 2025

ORDER (Per Smt. Vibha Kankanwadi, J.) :-

Citation: 2025:BHC-AUG:594-DB.

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Bombay HC: The Magistrate and Sessions court must see before issuing process against accused whether investigating officer has obtained sanction as per S. 195, 196, 197, 198 of CRPC if it is required

 We are disturbed to note that Judges from the District Judiciary are not paying attention to the requirements under Sections 195, 196, 197, 198 of the Code of Criminal Procedure. The embargo created under these provisions should be considered by them before taking cognizance. In succession in recent times we are coming across such orders which have been passed without considering these provisions under the Code of Criminal Procedure. If these basic provisions are not adhered to, then it is prejudicial to the accused persons as they would be unnecessarily asked to face the trial when there was defect or illegality in passing of the order of taking cognizance of the offence itself. Therefore, we want to put the Judges of the

District Judiciary on guard and direct them that they should consider these provisions whenever they are necessary and pass detailed orders in respect of the same. {Para 11}

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

901 CRIMINAL APPLICATION NO.2375 OF 2019

Dnyaneshwar Rohidas Wakale, Vs   The State of Maharashtra

CORAM : SMT. VIBHA KANKANWADI &

S.G. CHAPALGAONKAR, JJ.

DATE : 19th SEPTEMBER, 2024

Citation: 2024:BHC-AUG:22690-DB

ORDER : (PER : SMT. VIBHA KANKANWADI, J.).

Read full Judgment here: Click here.

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Whether accused can seek direction U/S 91 of CRPC for supply of call details and location chart of investigating officer?

 I have heard learned counsel for the parties at length & gone through the available records. After hearing the arguments advanced by counsel for the petitioner and the rival contention and after perusal of the order passed by the Trial Court, it appears that the petitioner is seeking direction from this Court for the supply of the call details of the calls made from the mobile phone of the investigating officer. The grievance of the petitioner is that the calls made from the mobile of the investigating officer would indicate the presence, location and the activities of the investigating officer whereas the case of the State is that in the details of mobile calls of the investigating officer, it is not suggested to be the calls relating to the present case and apart from the present case, the investigating officer being a police officer, had been dealing with the other matters and activities of various other accused and with regard to the duty assigned to him. Further contention made by the prosecution is that the accused could not claim the record of various activities of the investigating officer and he has to restrict to the activity of the investigating officer in the present case only. The prosecution has claimed that accused does not have any right to have the information about the final activities of the investigating officer and that cannot be limited to the activity in the present case. So, the accused could not be said to be entitled for seeking the details of records of all the calls made or calls received from the mobile phone of the investigating officer. {Para 8}

9. The Seamed Magistrate has delivered a reasoned order for the denial of the claim of the petitioner. Similar reasoned order has also been passed by the revisional Court i.e. Court of Sessions. This Court is not of any different view than the one taken by learned Metropolitan Magistrate as well as by the Court of Sessions. So the view of the Trial Court as well as the Court of Sessions is upheld by this Court also. Consequently, the present petition is dismissed.

 IN THE HIGH COURT OF DELHI

Crl. M.C. No. 406/2016

Decided On: 18.07.2016

Attar Singh Vs. State (NCT of Delhi)

Hon'ble Judges/Coram: P.S. Teji, J.

Citation: 2016 SCC OnLine Del 3907,MANU/DE/2928/2016.

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Delhi high court guidelines to ensure that the anonymity and confidentiality of the prosecutrix/victim/survivor of sexual offences

 34. Furthermore, as a sequitur to the above, this court issues the following directions:

34.1. It is directed that the Registry must carefully scrutinise all filings relating to sexual offences, to ensure that the anonymity and confidentiality of the prosecutrix/victim/survivor is strictly maintained;

34.2. To be more specific, in order to maintain confidentiality as aforesaid, the following must be done :

34.2.1. The name, parentage, address, social media credentials and photographs of the prosecutrix/victim/survivor must not be disclosed in the filings made in court, including in the memo of parties;

34.2.2. Though, if the foregoing direction is scrupulously followed, the identifying particulars would not appear in the cause-list, by way of abundant caution, the Registry must ensure that such particulars do not get reflected in the cause-list of the court in any manner;

34.2.3. The name, parentage and address of family members of the prosecutrix/victim/survivor - through whom the prosecutrix/victim/survivor could be identified - must not be disclosed in the filings, including in the memo of parties, even if they are accused in the case, since this may indirectly lead to the identification of the prosecutrix/victim/survivor;

34.2.4. Since redaction of the identifying particulars of the prosecutrix/victim/survivor from the FIR, chargesheet, proceedings before the trial court and other similar records, is the duty and obligation of the authorities/court that prepare such documents; and insofar as the proceedings before this court are concerned, making complete redaction in each of those documents may not be feasible, it is also directed that the files/paper-books/e-portfolio of matters relating to sexual offences filed in this court must not be provided to any person other than the parties to the litigation, to the prosecutrix/victim/survivor and their respective counsel, after due verification of the identity credentials of such persons;

34.2.5. At the stage of scrutiny of the filings, in the event the Registry finds that the identity credentials of a prosecutrix/victim/survivor are disclosed in the memo of parties or anywhere else in the filings, such filings must be returned to counsel who have filed the same, to undertake requisite redactions, before the filings are accepted;

34.2.6. To obviate the dissemination of identifying particulars to any other person or agency even within the High Court, it is further directed that all service to be effected upon the prosecutrix/victim/survivor shall only be through the Investigating Officer in accordance with Practice Directions dated 24.09.2019 and not through the process serving agency, though a copy of the petition or application must be served upon the prosecutrix/victim/survivor;

34.2.7. In effecting service as aforesaid, the Investigating Officer must remain in 'plain clothes' so as to avoid any unwarranted attention;

34.2.8. Furthermore, the Investigating Officer must also inform the prosecutrix/victim/survivor that they have the right to free legal-aid/representation in accordance with the mandate of the Supreme Court in Delhi Domestic Working Women's Forum vs. Union of India & Ors; MANU/SC/0519/1995 : (1995) 1 SCC 14 cf. para 15

34.2.9. If the parties wish to cite in court any identifying particulars of the prosecutrix/victim/survivor, including photographs or social media communications etc., such party may bring the same to court in 'sealed cover'; or file the same in 'sealed cover' or in a 'pass-code locked' electronic folder and share the pass-code only with the concerned Court Master.

34.3. The foregoing directions are not intended to be exhaustive; and at the stage of scrutiny, the Registry is expected to apply its mind to any peculiarities of a given case, with the aim and intent of scrupulously applying the directions of the Supreme Court in Nipun Saxena (supra).

 IN THE HIGH COURT OF DELHI

Bail Appln. 3635/2022

Decided On: 19.04.2023

Saleem Vs. The State of NCT of Delhi and Ors.

Hon'ble Judges/Coram:

Anup Jairam Bhambhani, J.

Citation: 2023:DHC:2622,MANU/DE/2515/2023.

Read full Judgment here: Click here.

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Supreme court: Statement Of Accused is Inadmissible U/S 27 of Evidence Act If No New Fact Is Discovered Pursuant To Disclosure

 On a threadbare analysis of the entire record, we do not find that the prosecution examined any witness who had deposed about the link evidence/safe custody of the mudammal articles right from the time they were received at the police station and seized till the time the same reached the FSL. Hence, otherwise also, the FSL report(Exhibits 111-115) pales into insignificance. Investigating Officer(PW-18) deposed that he arrested the Accused persons. A detailed enquiry was made from all three Accused-Appellants, and they were examined for the injuries found on their bodies. Thereafter, all the Accused-Appellants conveyed their willingness to show the place of the offence and thereafter, panchnama as per Section 27 of the Evidence Act was prepared. Since the place of incident was also known to police, this disclosure is irrelevant. {Para 45}

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 2828-2829 of 2023 and 112 of 2024

Decided On: 08.08.2024

Allarakha Habib Memon and Ors. Vs. State of Gujarat

Hon'ble Judges/Coram:

B.R. Gavai and Sandeep Mehta, JJ.

Author: Sandeep Mehta, J.

Citation:  MANU/SC/0856/2024.

Read full judgment here: Click here.

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Supreme Court: The court should not rely on FSL report if prosecution has failed to prove chain of custody

 The trial Court as well as the High Court heavily relied upon the FSL reports(Exhibits 111-115) to hold that blood group found on the weapons of offence incriminated the Accused for the crime as the same matched with the blood group of the deceased. In this regard, it is suffice to say that the two weapons which were picked up by Demistalkumar(PW-12) from the place of occurrence were formally seized at the Anand Town Police Station around 2:30 am on 5th May, 2011. Only one of the panchas Mohammad Hussain(PW-5) was examined at the trial. The seizure panchnama(Exhibit -38) records that the three Accused who had inflicted deadly blows to the deceased with dagger, gupti and knife, threw away their weapons near the garden and fled away from the crime scene and that police personnel brought all the weapons to the police station. However, the panchnama(Exhibit P-38) does not bear the signatures of the police constable, Demistalkumar(PW-12) who admittedly collected the weapons from the crime scene and presented them to the police station. Thus, no credence can be given to seizure panchnama(Exhibit P-38) because it suffers from the lacuna of not being attested by the witness who had actually presented the weapons at the police station. In addition, thereto, we may further note that Demistalkumar(PW-12), the police constable who deposited the weapons at the police station, did not state in his evidence as to whom he had given the knife and the gupti which he picked up from the crime scene. These weapons were seized vide seizure panchnama(Exhibit-38) which was admittedly prepared at 2:30 am. However, the Police Constable, Demistalkumar(PW-12) stated that he reached the police station at about 9:15 pm and stayed there for only 20 minutes. These infirmities create a doubt on the very process of seizure of the weapons. {Para 42}

43. The trial Court as well as the High Court heavily relied upon the FSL reports(Exhibits 111-115) for finding corroboration to the evidence of the eyewitnesses and in drawing a conclusion regarding culpability of the Appellants for the crime. We may reiterate that the testimony of the so-called eyewitnesses has already been discarded above by holding the same to be doubtful. Thus, even presuming that the FSL reports(Exhibits 111-115) conclude that the blood group found on the weapons recovered at the instance of the Accused matched with the blood group of the deceased, this circumstance in isolation, cannot be considered sufficient so as to link the Accused with the crime. In this regard, reliance can be placed on the judgment of Mustkeem alias Sirajudeen v. State of Rajasthan   MANU/SC/0795/2011 : 2011:INSC:487 : (2011) 11 SCC 724, wherein this Court held that sole circumstance of recovery of bloodstained weapon cannot form the basis of conviction unless the same was connected with the murder of the deceased by the Accused. The relevant portion is extracted hereinbelow:

19. The AB blood group which was found on the clothes of the deceased does not by itself establish the guilt of the Appellant unless the same was connected with the murder of the deceased by the Appellants. None of the witnesses examined by the prosecution could establish that fact. The blood found on the sword recovered at the instance of Mustkeem was not sufficient for test as the same had already disintegrated. At any rate, due to the reasons elaborated in the following paragraphs, the fact that the traces of blood found on the deceased matched those found on the recovered weapons cannot ipso facto enable us to arrive at the conclusion that the latter were used for the murder.

(emphasis supplied)

44. On a perusal of the deposition of the Investigating Officer(PW- 18), we find his evidence on the aspect of disclosure statements made by the Accused-Appellant leading to the recoveries to be totally perfunctory and unacceptable. The witness did not elaborate upon the words spoken by the Accused-Appellant at the time of making the disclosure statements.

45. On a threadbare analysis of the entire record, we do not find that the prosecution examined any witness who had deposed about the link evidence/safe custody of the mudammal articles right from the time they were received at the police station and seized till the time the same reached the FSL. Hence, otherwise also, the FSL report(Exhibits 111-115) pales into insignificance. Investigating Officer(PW-18) deposed that he arrested the Accused persons. A detailed enquiry was made from all three Accused-Appellants, and they were examined for the injuries found on their bodies. Thereafter, all the Accused-Appellants conveyed their willingness to show the place of the offence and thereafter, panchnama as per Section 27 of the Evidence Act was prepared. Since the place of incident was also known to police, this disclosure is irrelevant. Search of the houses of the Accused-Appellant was undertaken in presence of the panch witnesses and a big knife was seized from the house of the Accused Mohmedfaruk @ Palak, vide panchnama(Exhibit-52).

46. Hence, we are of the firm view that neither the disclosure statements made by the Accused were proved as per law nor the same resulted into any discovery which could be accepted as incriminating inasmuch as the requisite link evidence was never presented by the prosecution so as to establish that the recovered articles remained in the self-safe condition from the date of the seizure till the same reached the FSL.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 2828-2829 of 2023 and 112 of 2024

Decided On: 08.08.2024

Allarakha Habib Memon and Ors. Vs. State of Gujarat

Hon'ble Judges/Coram:

B.R. Gavai and Sandeep Mehta, JJ.

Author: Sandeep Mehta, J.

Citation:  MANU/SC/0856/2024.

Read full judgment here: Click here.

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Supreme court: Confession Recorded By Medical Officer When Accused Were Presented By Police Officers Inadmissible As Evidence

The trial Court as well as the High Court, placed extensive reliance on the confessions of the Accused Appellants Mohmedfaruk @ Palak Safibhai Memon and Amin @ Lalo recorded by the Medical Officer, Dr. Arvindbhai(PW-2) while preparing the injury reports of the Accused. {Para 40}

41. We find that these so-called confessions are ex-facie inadmissible in evidence for the simple reason that the Accused persons were presented at the hospital by the police officers after having been arrested in the present case. As such, the notings made by the Medical Officer, Dr. Arvindbhai(PW-2) in the injury reports of Mohmedfaruk @ Palak and Amin @ Lalo would be clearly hit by Section 26 of the Indian Evidence Act, 1872(hereinafter being referred to as 'Evidence Act'). As a consequence, we are not inclined to accept the said admissions of the Accused as incriminating pieces of evidence relevant Under Section 21 of the Evidence Act. 

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 2828-2829 of 2023 and 112 of 2024

Decided On: 08.08.2024

Allarakha Habib Memon and Ors. Vs. State of Gujarat

Hon'ble Judges/Coram:

B.R. Gavai and Sandeep Mehta, JJ.

Author: Sandeep Mehta, J.

Citation:  MANU/SC/0856/2024.

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Supreme Court: Investigating Officers can not seek police custody remand of accused after competent Court has granted anticipatory bail

 The arguments advanced by learned senior counsel appearing for the Additional Chief Secretary, Government of Gujarat as well as the High Court of Gujarat about the long-standing practice prevailing in the State, that the Investigating Officer(s) are given liberty to seek police custody remand of the accused after competent Court has granted anticipatory bail does not appeal to us for a moment. Such an interpretation does not appear to be in consonance with the unambiguous position of law. The provisions of anticipatory bail enumerated under Section 438 CrPC or the newly enacted Section 482 of the Bhartiya Nagarik Suraksha Sanhita, 2023(hereinafter being referred to as ‘BNSS’), which has come into force with effect from 1st July, 2024, do not contemplate any such liberty to the Investigating Officer. However, the Court adjudicating an application for anticipatory bail may, in a given case, restrict the tenure of anticipatory bail in view of the law laid down by this Court in the case of Sushila Agarwal(supra) and may also impose suitable conditions in light thereof. However, it does not stand to reason that as a matter of course, the High Court or the Court of Sessions, as the case may be, while exercising anticipatory bail jurisdiction, grants pre-arrest bail to the accused and yet, invariably the Investigating Officer is given blanket liberty to keep the accused in custody for prolonged periods in a routine manner. This would virtually frustrate the very purpose and intent behind the grant of anticipatory bail to an accused. The relevant excerpts in this regard from the Constitution Bench judgment of this Court in the case of Sushila Agarwal(supra) are reproduced below for the sake of ready reference: -

“85.3. Section 438 CrPC does not compel or oblige courts to

impose conditions limiting relief in terms of time, or upon filing

of FIR, or recording of statement of any witness, by the police,

during investigation or inquiry, etc. While weighing and

considering an application (for grant of anticipatory bail) the

court has to consider the nature of the offence, the role of the

person, the likelihood of his influencing the course of

investigation, or tampering with evidence (including

intimidating witnesses), likelihood of fleeing justice (such as

leaving the country), etc. The courts would be justified — and

ought to impose conditions spelt out in Section 437(3) CrPC [by

virtue of Section 438(2)]. The necessity to impose other

restrictive conditions, would have to be weighed on a case-bycase basis, and depending upon the materials produced by the

State or the investigating agency. Such special or other

restrictive conditions may be imposed if the case or cases

warrant, but should not be imposed in a routine manner, in

all cases. Likewise, conditions which limit the grant of

anticipatory bail may be granted, if they are required in the

facts of any case or cases; however, such limiting conditions

may not be invariably imposed.

85.4-85.7.…..

85.8. It is open to the police or the investigating agency to

move the court concerned, which granted anticipatory bail,

in the first instance, for a direction under Section 439(2)

to arrest the accused, in the event of violation of any term,

such as absconding, non-cooperating during investigation,

evasion, intimidation or inducement to witnesses with a

view to influence outcome of the investigation or trial, etc.

The court, in this context, is the court which grants anticipatory

bail, in the first instance, according to prevailing authorities.”

 (emphasis supplied). {Para 55}

56. The ratio of the above judgment makes it clear that Section

438 CrPC does not compel or oblige courts to impose conditions

limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. The necessity to impose restrictive conditions other than those spelt out in Section 437(3) CrPC would have to be weighed on a case-by-case basis and depending upon the materials produced by the State or the Investigating Agency. Such special or other restrictive conditions may be imposed if the factual context of the case warrants but should not be imposed in a routine manner and the Court would have to act with circumspection depending on the particular facts of each case before endeavouring to impose such conditions.

57. This Court has time and again held that the discretion to

grant pre-arrest bail should be exercised with great degree of

circumspection. Reference in this regard may be made to P.

Chidambaram v. Directorate of Enforcement (2019) 9 SCC 24.

58. Thus, the power to grant anticipatory bail is not to be

exercised in a routine manner and the Courts are expected to use

this provision with a great degree of circumspection. Once, a Court bearing in mind the strict parameters applicable to grant of anticipatory bail exercises such power, then in such a situation, giving a handle to the Investigating Officer to seek police custody remand of the accused, would virtually negate and frustrate the very purpose behind the order of anticipatory bail. Hence, we have no hesitation in holding that the practice prevalent in the State of Gujarat that the Courts while dealing with the anticipatory bail application routinely impose the restrictive condition whereby, the Investigating Officers are granted blanket permission to seek police custody remand of the accused, in whose favour the order of anticipatory bail is passed, is in direct contravention to the ratio of the Constitution Bench judgment of this Court in the case of Sushila Agarwal(supra). The Division Bench judgment of the Gujarat High Court in the case of Sunilbhai Sudhirbhai Kothari(supra) does not hold good in law as the same runs contrary to the ratio of Sushila Agarwal(supra) and thus, the same stands impliedly overruled.

REPORTABLE

IN THE SUPREME COURT OF INDIA

INHERENT/CRIMINAL APPELLATE JURISDICTION

CONTEMPT PETITION(CIVIL) NO(S). OF 2024 (D. No. 1106 OF 2024) IN SPECIAL LEAVE PETITION(CRL.) NO(S). 14489 OF 2023

TUSHARBHAI RAJNIKANTBHAI SHAH  Vs

KAMAL DAYANI & ORS. 

Dated: August 07, 2024.

Citation: 2024 INSC 588.

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What is the duty of motor accident claim tribunal if claimant is not coming before it for prosecuting his case?

  Taking into consideration the reasons given hereinabove, the learned Tribunal has failed to take into consideration the benevolent object of the M.V. Act, where no claim petition could be dismissed for default without any decision on merits. The learned Tribunal is always require to decide the claim petition on merits, if at all, after giving a reasonable time, the claimant himself would not be in a position to adduce evidence, then the learned Tribunal ought to have called for Form No.54 from the police for verifying the facts and should have granted the compensation amount accordingly.{Para 8}

Gujarat High Court

L H Of Sanjaybhai Ashokbhai Vaghela vs Ashokbhai Bachubhai Vaghela (Parties ... on 12 October, 2022

Bench: Gita Gopi

R/Special Civil application No.6152/2022

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Whether Special Court Can Order FIR Against Investigating Officer For Failure To File Chargesheet Within 180 Days U/ S 59 of NDPS Act?

 The learned Judge on the basis of the material on record has

recorded his prima facie opinion about the commission of an

offence under Section 59 of N.D.P.S. Act by this applicant.

The learned Judge has not awarded any sentence to him. So

the right of the accused to meet the case which he would be

made to face has not in any way tinkered with or taken away.

18. It is to be noted that the approach of the learned

Judge being Special Judge under the N.D.P.S. Act is consistent

with the object and spirit of the enactment. It is to be noted

that while implementing the provisions of the enactment such

as N.D.P.S. Act all concerned at their respective place are

required to demonstrate equal seriousness. If such seriousness

is not demonstrated then it can frustrate the object and

intention of such enactment. It needs to be stated that in

order to ensure such seriousness by all concerned the stringent

provisions have been made. Section 59 of the N.D.P.S. Act is

one such stringent provision. It provides for penal

consequences in case of an act by anyone, which is not

consistent with the object and intention. It is submitted that

the opportunity was not given to him to explain the reasons

for delay in filing the charge sheet. In my view, this objection

can be taken care of by perusing the questions put to the

applicant and answers given by him. He has categorically

stated that investigation was complete on 13.10.2021. It is not

his case that after these questions by the Court and answers

given by him, he was in any manner prevented by the Court

from placing on record his explanation. The questions put to

him and answers given by him to those questions clearly

indicate that he was granted an opportunity to explain each

and every aspect. In fact the applicant has admitted that in all

respect the investigation was completed on 13.10.2021.

Applicant had an opportunity to place his detailed explanation

on record when he was called upon to file the say to the bail

application. The perusal of the say or reply to the bail

application would show that it was conspicuously silent

about the reasons for delay in filing the charge sheet. In fact

the say filed by the prosecutor on 27.01.2022 would reveal

that on phone, he had questioned the applicant about the

delay in filing the charge sheet. However, he did not answer

him. He finally went to meet him on 28.01.2022. It is,

therefore, seen that throughout the proceeding, he has not

placed the reasons for delay in filing the charge sheet on

record. It is, therefore, seen that the failure on his part is

serious wrong. Learned judge has found that this wrong is

fully covered within the dragnet of Section 59 (1) of the

NDPS Act.

25. In my view, therefore, this decision recognizes the

powers of the court to pass such an order. It is true that in this

case, the order of initiation of disciplinary action was passed.

The question whether the case warrants a disciplinary action

or penal action depends upon the facts and circumstances of

each and every case. In this case, the learned Judge found it

appropriate to order initiation of a penal action as provided

under Section 59 of N.D.P.S. Act. It needs to be stated that as

and when it is found by any Court at any stage of proceeding

that the actionable wrong within the meaning of Section 59 of

the N.D.P.S. Act has been committed then in that event it has

to be approached and dealt with firmly by initiating an

appropriate action. In this view of the matter, I do not see any

substance in the revision. The same is accordingly dismissed.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

CRIMINAL REVISION APPLICATION NO.106 OF 2022

Ashish Devidas Morkhade  Vs  State of Maharashtra 

CORAM : G. A. SANAP, J.

DATE:- 21/04/2023

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Whether accused can pray to the court for the preservation of the CDR of the raiding party’s mobile phone to prove his innocence?

 The counsel for the petitioner argued that the petitioner was falsely implicated in the present case by the investigating agency and was not arrested in the manner as alleged in the FIR. The entire prosecution case is planted and concocted. The contents mentioned in the Final Report under section 173 Cr.P.C. regarding the recovery of contraband and manner of arrest are completely false and far away from truth. The investigating agency may destroy the evidence which is required to prove the innocence of the petitioner during the trial of the case. The petitioner along with the co-accused was apprehended/hijacked by the raiding party at toll plaza, National Highway at Pilakhua, Hapur, U.P. in dramatic manner. The petitioner has a right to natural justice and fair investigation and for this it is required to preserve the location chart of the members of the raiding party as mentioned in the FIR along with the location chart and the contact no. of the accused including the petitioner. {Para 4}

7. In the present case, the members of raiding party belong to a specialized investigating agency which carries investigation in the matter of national interest, terrorism, armed dealing, drug paddling and organized criminal activities and for said purpose the members of the raiding party have to remain in touch with the secret informers. It would not be in the interest of the functioning of the investigating agency to preserve CDR of mobile phone of the raiding party as it may cause prejudice to the personal safety/security of the police officials as well as may expose identity of the secret informers. The investigation is already completed.

8. After considering all facts, the relief as prayed for cannot be granted and the petition is dismissed.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

 W.P.(CRL) 1236/2022

 KRISHAN PAWDIA Vs THE STATE, NCT OF DELHI 

 CORAM: HON'BLE MR. JUSTICE SUDHIR KUMAR JAIN 

Decided on: June 03, 2022.

Citation: 2022 SCC OnLine Del 1758. 

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Whether police can further investigate the criminal case even though Magistrate has issued Summary in said case?

 Let us now consider the submissions of the learned Senior

Advocate for the petitioner that the Investigating Officer is not justified in reinvestigating the offence in which the jurisdictional Magistrate has already accepted the “A” summary.

49. Reference to some of the provisions of the Code would be

necessary in the context of the contention of the learned Senior Advocate

appearing for the petitioner. Before we deal with the relevant provisions, at

the cost of repetition, it would be necessary to mention that “A” summary was

granted by the jurisdictional Magistrate on 16.4.2019. The said order reads

thus:

:ORDER:

1. The report submitted by DYSP is accepted.

2. “A” Summary as prayed for is granted.”

50. The Hon'ble Supreme Court in Bhagwant Singh (supra) and

Gangadhar (supra) and in the case of State of Andhra Pradesh vs. A.S. Peter (2008) 2 SCC 383

has held that when the Magistrate is not inclined to take cognizance of the

offence and issue process, the informant must be given an opportunity of being

heard so that he can make his submissions to persuade the Magistrate to take

cognizance of the offence and issue process. In the facts of the case in hand,

admittedly, the informant was neither given any notice nor heard when the “A”

summary was granted. Even the aforesaid order was not communicated to the

first informant. The victim i.e. first informant, when became aware about the “A” summary, though some tweets as submitted by learned Senior Advocate Mr. Gupte, requested the State Government and Superior officer of police that the case should be properly and thoroughly investigated. 

On the instructions of superior officers of the Investigating Officer, the local Crime Investigation Branch, Alibaug filed a report before the jurisdictional Magistrate for conducting further investigation of the said offence and accordingly, intimated to the jurisdictional Magistrate that further investigation of the offence under section 173(8) of the Code is being carried out. The jurisdictional Magistrate recorded the endorsement as “seen and filed”. In this

context, it would be relevant to refer to section 173(8) of the Code of Criminal Procedure, which reads thus:

“SECTION 173 (8) CRPC

(8) Nothing in this section shall be deemed to preclude

further investigation in respect of an offence after a

report under sub- section (2) has been forwarded to the

Magistrate and, where upon such investigation, the

officer in charge of the police station obtains further

evidence, oral or documentary, he shall forward to the

Magistrate a further report or reports regarding such

evidence in the form prescribed; and the provisions of

sub- sections (2) to (6) shall, as far as may be, apply in

relation to such report or reports as they apply in

relation to a report forwarded under sub- section (2).”

 

55. Thus, there is no manner of doubt in our minds that the State

Government can always direct a further investigation to the concerned policeofficers, as done in the present case.

 56. Insofar as the provision regarding grant of “A” summary is

concerned, the procedure thereof is mentioned under Rule 219 of the

Bombay Police Manual, 1959. Rule 219, dealing with final reports, more

particularly, clause (3) reads thus:

“RULE 219 (3) OF BOMBAY POLICE MANUAL

(3) The final report should be written up carefully by the officers incharge

of the Police Station personally and should be accompanied by

all the case papers numbered and indexed methodically. If the accused

has been released on bail, the Magistrate should be requested to cancel

the bail bond. He should also be requested to pass orders regarding the

disposal of property attached, unless any of the articles, e.g., blood

stained clothes, are required for further use in true but undetected

cases. A request should also be made to the Magistrate to classify the

case and to issue an appropriate summary of his order, viz:-

“A’ True, undetected (where there is no clue whatsoever about the

culprits or property or where the accused in known but there is no

evidence to justify his being sent up to the Magistrate (for trial).

“B” Maliciously false.

“C” Neither true nor false, e.g., due to mistake ot fact or being of a

civil nature.

“Non-cognizable” Police investigation reveals commission of only

non-cognizable offence.”

(emphasis supplied)

57. Reading of clause (3) would indicate that “A” summary is

granted in a case where the offence is committed but the same is undetected,

in that, where there is no clue whatsoever about the culprits or property or

where the accused is known but there is no evidence to justify the same for

being sent to the Magistrate (trial). The jurisdictional Magistrate has

classified the case and issued “A” summary in this case. Consequent upon

receiving instructions pursuant to the complaint made by the victim to the

superiors, the local Crime Branch intimated the jurisdictional Magistrate that

they want to the carry out further investigation in the offence.

58. The intimation thereon was given to the Magistrate who had

made an endorsement of “seen and file”. Not only that but even when the

application was made by the Investigating Officer for recording the

statements under section 164 of the Code of Criminal Procedure, the same

was recorded by the Magistrate. Their Lordships in the case of State of

Andhra Pradesh vs. A.S. Peter (supra) have in the context of section 173 of

Code of Criminal Procedure held that the law does not mandate taking prior

permission of Magistrate for further investigation. Their Lordships further

held that carrying out further investigation even after filing of chargesheet, is

a statutory right of the police. A distinction also exists between further

investigation and reinvestigation. It is observed that whereas reinvestigation

without prior permission is necessarily forbidden, further investigation is not.

59. We find that before carrying out the said investigation, the

Magistrate was intimated about the further investigation. Thereafter, even

the statements are recorded under section 164 of the Code of Criminal

Procedure after obtaining permission from Chief Judicial Magistrate. In our

opinion, the further investigation cannot be termed as illegal and without

seeking permission of the Magistrate. The same is in consonance with the

power conferred by section 173 (8) of Code of Criminal Procedure, which is

extracted hereinabove. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION STAMP NO. 4278 OF 2020

IN

CRIMINAL WRIT PETITION STAMP NO. 4132 OF 2020

Arnab Manoranjan Goswami  Vs The State of Maharashtra & Ors.

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