Questions and answers on law (Part 90)

Q 1:-  A person has died by strangulation and a rope is found, how would this rope would be connected to the accused. How would Judge appreciate the evidence? What would be material evidence to this regard? 

Ans:- In such a case, the rope by itself is not enough; it must be linked to the accused through a complete chain of medical, forensic, recovery, and circumstantial evidence. The court should see whether the rope is proved to be the likely ligature used, whether it is connected with the accused, and whether all circumstances together exclude innocence.

30-second answer

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Supreme Court: Magistrate cannot direct Police to include accused in charge sheet, instead issue summons to person proposed to be added.

 Having considered the matter, we find some technical merit in the contention of the learned counsel for the petitioner. The Court has the power to differ from the Final Form submitted by the Police and take cognizance of a crime and also against persons who may not have been sent up for trial by the Police after investigation. In such circumstances, the Court is then required to issue summons instead of directing for inclusion of the name of the person in the charge-sheet. Thus, ultimately, the result is the same, that is, the person concerned is arrayed as an accused upon taking cognizance after application of mind by the Court and accordingly, summons are issued. Thus, the order which in essence is of summons as an accused, cannot be faulted. {Para 3}

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

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s).3649/2025

GOPAL PRADHAN  Vs STATE OF CHHATTISGARH & ORS. 

Date : 17-03-2025 This matter was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE AHSANUDDIN AMANULLAH

HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA

UPON hearing the counsel the Court made the following

O R D E R

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Supreme Court: Even if investigation is not conducted by authorized officer, the trial is not vitiated unless a prejudice is shown

As the foregoing discussion shows the investigation in the present case by the Deputy Superintendent of Police cannot be considered to be in any way unauthorised or contrary to law. In this connection it may not be out of place also to point out that the function of investigation is merely to collect evidence and any irregularity or even illegality in the course of collection of evidence can scarcely be considered by itself to affect the legality of the trial by an otherwise competent court of the offence so investigated. {Para 15}

Ratio: It is well settled law that even if investigation is not conducted by authorized officer, the trial is not initiated unless a prejudice is shown.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1439 of 2017

Decided On: 18.08.2017

R.A.H. Siguran Vs. Shankare Gowda and Ors. 

Hon'ble Judges/Coram:

Adarsh Kumar Goel and U.U. Lalit, JJ.

 Citation: 2017 INSC 777, MANU/SC/1086/2017.

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Kerala HC: As per S.349 of BNSS, Magistrate Can Direct Any Person To Provide Voice Sample For Purpose Of Investigation

Similarly, no legal requirement can be read into the declaration of law made in Ritesh Sinha (supra), or for that matter Section 349 of the B.N.S.S, that the accused person should have been in custody at the time when an order for voice sample has to be made. While Ritesh Sinha (supra) uses the language 'any person', Section 349 B.N.S.S. would separately deal with 'any person', by suffixing with the expression 'including an accused person'. Similarly, the language in the first proviso to Section 349 is that the person should have been arrested at some time in connection with the investigation, which requirement is amply satisfied in the given facts. If this Court has to go by Ritesh Sinha (supra), there is no such requirement that the person should have been in the custody at the time when the order for voice sample is made. The requirement in Ritesh Sinha (supra) is that such an order has to be passed 'for the purpose of investigation of a crime'. Under Section 349, the criteria is the satisfaction of the Magistrate that it is expedient to direct any person to provide his voice sample, again, for the purposes of any investigation or proceeding under B.N.S.S. Therefore, the thrust is upon the question whether the voice sample is required for the purpose of investigation in a crime.

8. In the instant facts, this Court notice that the crime in question was registered pursuant to a trap. If, as contended by the learned counsel for the petitioner, the phenolphthalein test has turned negative, that is all the more a reason for the Investigating Agency to produce whatever evidence possible in support of the prosecution case. If, as claimed by the Investigating Officer, there exists a voice clip containing the voice of the petitioner, wherein, he had allegedly demanded bribe, the same would constitute an important evidence in the armoury of the prosecution. Such an attempt cannot be shut down, since it has to be conceded that it is fully within the realm and prerogative of the Investigating Officer to search, explore and furnish all and whatever legal evidence possible in support of the prosecution case.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl. MC No. 9284 of 2024

Decided On: 14.11.2024

Sunil Rajan K Vs. Inspector of Police, Vigilance and Anti-Corruption Bureau and Ors.

Hon'ble Judges/Coram:

C. Jayachandran, J.

Citation: MANU/KE/5069/2024.

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Kerala HC: Special courts shall not order an investigation U/S 156(3) CrPC against public servant in absence of prior sanction under Section 19 of PC Act.

  Section 19(1) of the PC Act says that no court shall take cognizance of an offence punishable under sections 7, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction of the competent authority referred to in sub-clauses (a), (b) and (c). The question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duties. The purpose of obtaining sanction is to see that the public servant is not entangled in false and frivolous cases. The question whether a sanction under section 19 of the PC Act is necessary or not while ordering an investigation against a public servant invoking powers under section 156(3) of Cr. P.C is no more res integra. In Anil Kumar (supra), it was held that in the absence of a prior sanction under section 19 of the PC Act, the Magistrate/Court cannot order an investigation against a public servant by invoking power under section 156(3) of Cr.P.C. After referring to various judgments on the issue of purport and meaning of the word "cognizance", it was concluded that "cognizance" has a wider connotation and is not merely confined to the stage of taking cognizance of the offence. In L.Narayana Swamy (supra), the Apex Court held that an order directing investigation under section 156(3) could not be passed in relation to a public servant in the absence of valid sanction. It was observed that even while directing inquiry under section 156(3) of Cr.P.C., the Magistrate applies his judicial mind on the complaint, and therefore, it would amount to taking cognizance of the matter. The same issue arose before the Apex Court again in Manju Surana v. Sunil Arora and Others (MANU/SC/0296/2018 : 2018 KHC 6224). After considering the various judgments, including Anil Kumar (supra) and L. Narayana Swamy (supra), the Division Bench of the Apex Court directed the matter to be placed before the Larger Bench. Thereafter, a Division Bench of this Court in Muhammed V.A. and Others v. State of Kerala and Others (MANU/KE/3653/2018 : 2019 (1) KHC 239) held that until a final decision is taken in the reference in Manju Surana (supra), the dictum laid down in Anil Kumar (supra) will hold the field. Therefore, as the law now stands, the requirement of sanction under section 19 of the PC Act is a prerequisite for presenting a private complaint against a public servant alleging the commission of an offence specified in sections 7, 11, 13 and 15 of the PC Act. No such complaint could be forwarded for investigation under section 156(3) of Cr.P.C. in the absence of sanction granted by the competent authority under section 19 of the PC Act. The decision of the Apex Court in B.A.Srinivasan (supra) relied on by the learned counsel for respondents 3 to 6 pertains to sanction under section 197 of Cr.P.C and hence the dictum laid down therein does not apply to the facts of the case.

{Para 7}

Considering the above findings, I am of the view that the court below could not have forwarded the complaints under section 156(3) of Cr.P.C for investigation without any sanction under section 19(1) of the PC Act obtained by the complainants. Hence, the impugned order cannot be sustained, and accordingly, it is set aside.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP (Crl.) No. 510 of 2022

Decided On: 17.02.2023

C.V. Balan and Ors. Vs. State of Kerala and Ors.

Hon'ble Judges/Coram:

Dr. Kauser Edappagath, J.

Citation: 2023 KER 9580,2023 KLJ 1 9252023 SCC ONLINE KER 9832023 KER 9580, MANU/KE/0324/2023

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Bombay HC: As per S.193 BNSS, police must inform progress in Investigation To Informant or victim

The essential grievance of the petitioner in the aforesaid petition is that the police are not complying with the mandate of Section 173(2)(ii) of the Code of Criminal Procedure ('Cr.PC').{Para 2}

3. Perused the papers. The said section of which noncompliance by the police is alleged, reads thus:-

“173. Report of police officer on completion of investigation. -

(2) (i) ---- ---- ----

(ii) The officer shall also communicate, in such manner as

may be prescribed by the State Government, the action taken

by him, to the person, if any, by whom the information relating

to the commission of the offence was first given.”

4. After the repeal of Cr.PC; under the new ‘The Bharatiya

Nagarik Suraksha Sanhita, 2023 (‘BNSS’), the corresponding section is Section 193(3)(ii) & (iii). The said provision in the new BNSS, is identical to that of Section 173(2)(ii) of the Cr.PC.

5. Mr. Saste, learned Additional Public Prosecutor states that

a Circular dated 23rd August 2024 has been issued for scrupulous compliance of the provisions of Section 193(3)(ii) & (iii) of the BNSS. The said Circular is taken on record.

6. In view of the aforesaid, nothing survives for further consideration in the aforesaid petition. Petition stands disposed of accordingly.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

 CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION (STAMP) NO.16212 OF 2024

Nirmala Bhavesh Parmar Vs State of Maharashtra and Ors.

CORAM : REVATI MOHITE DERE &

 PRITHVIRAJ K. CHAVAN, JJ.

 DATE : 29th AUGUST 2024

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Supreme Court: Anticipatory Bail Can't Be Denied On Mere Assertion Of State That Custodial Interrogation Of Accused Is Required

There is no gainsaying that custodial interrogation is one of

the effective modes of investigating into the alleged crime. It is

equally true that just because custodial interrogation is not

required that by itself may also not be a ground to release an

accused on anticipatory bail if the offences are of a serious

nature. However, a mere assertion on the part of the State while

opposing the plea for anticipatory bail that custodial interrogation is required would not be sufficient. The State would have to show or indicate more than prima facie why the custodial interrogation of the accused is required for the purpose of investigation. {Para 12}

 IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2024

(@Special Leave Petition (Crl.) No.9949/2023)

ASHOK KUMAR Vs STATE OF UNION TERRITORY CHANDIGARH 

Dated: MARCH 01, 2024.

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Important changes brought about by Bharatiya Nagarik Suraksha Sanhita, 2023{Part 2}

1) Recording of evidence of successor of public servant

In order to expedite trials, a very timely provision has been added by way of Section 336 of BNSS. Whenever a report/document prepared by a public servant, scientific expert, or investigating officer is supposed to be used as evidence in a court, the maker of such document needs to testify before such court. However, due to unavoidable circumstances such as death, retirement, inordinate delay etc. in getting such person, the court can secure the attendance of the successor officer of such person. 

2) Another step taken to expedite trials is that now as per revised Section 274 of BNSS or Section 251 of CrPC regarding summons cases, a magistrate after recording reasons can now discharge the accused in case of groundless accusations.

3) In multiple instances, the role of other laws and agencies has been explicitly recognised by BNSS. For instance, earlier as per Section 268(2) of CrPC only state government could have passed a notification regarding prisoners, but now as per the revised corresponding Section 303(2) of BNSS even “Central government in cases instituted by its central agency” can do the same.

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Supreme Court: Refusal Of Accused In Sexual Offence Case To Undergo Medical Examination Shows his Unwillingness To Cooperate With Investigation

The earlier order passed by the High Court on 24th April, 2024, required respondent No. 2 to cooperate with the Investigating Officer for the purpose of investigation and, subject to the same, the respondent-Police were directed not to take any coercive action against him. Pursuant thereto, the

Investigating Officer issued a notice under Section 41-A of

the Code of Criminal Procedure, 1973, on 17th May, 2024,

requiring respondent No. 2 to undergo a medical examination

for the purpose of investigation in the case. He was directed

to appear at the Police Station on 18th May, 2024 at 10.00 a.m.

{Para 5}

6. Respondent No. 2, thereupon, filed IA No. 2 of 2024 before the

High Court. Perusal thereof reflects that he did not wish to

subject himself to medical examination. He stated therein

that the Investigating Officer was threatening him with arrest

if he did not tender himself for medical examination at the

same hospital where the victim was examined.

7. As respondent No. 2 stood protected from coercive action by

the earlier order of the High Court, this statement on his

part does not inspire confidence. In any event, his clear

statement to the effect that he did not want to be subjected

to medical examination shows that he is not willing to

cooperate with the investigation.

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

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s). 7880/2024

EKTA SINGH Vs THE STATE OF KARNATAKA 

 CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR

HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH

Date : 10-06-2024.

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Supreme Court: Accused can not claim the right of audience during police investigation and issuance of rogatory letter by the court

 The above contentions were tested by the High Court on the anvil of two legal propositions, namely, (1) There is no compliance of the principle of audi alteram partem, in that the Special Judge has not afforded any reasonable opportunity of being heard before issuing the letter rogatory and (2) The Special Judge has not applied his mind to all facts and circumstances of the case before passing his orders directing issue of letters rogatory. {Para 55}

75. Countering the above arguments, the learned Additional Solicitor General seriously contended that there is no provision conferring any right of audience on an accused before issuing letter rogatory the object of which is to collect evidence which may be used against the accused during the course of the trial. According to him, the accused has no right to control or interfere with the manner in which the evidence is to be collected. Chapter XII of the Code under the heading 'Information to the Police and other Powers to Investigate covering Sections 154 to 176 does not provide for application of the concept of audi alteram partem for an accused from the very inception of a criminal proceeding till its culmination in filing of a report under Section 173 of Cr.P.C. He continues to state that an order of the Court issued in exercise of the powers under Section 166-A of the Code is only for the purpose of collecting the evidence and in the very nature of things such an order does not effect any right of an accused and, therefore, the said order is beyond the purview of the High Court power even under Section 397 of the Code. Hence there is no question of the rule of audi alteram partem being attracted in the instant case. Therefore, the only important question that arises for our consideration is whether the issue of letters rogatory on 5/7th February, 1990 and on 22nd August, 1990 are liable to be quashed on the ground of non-compliance of the rule of audi alteram partem.

76. The rule of audi alteram partem is not attracted unless the impugned order is shown to have deprived a person of his liberty or his property. In the present case, no such consequences have arisen from the letter rogatory. If the letter rogatory is accepted by the foreign Court and acted upon it will then disclose only the relevant facts about the identity of the account holders, quantum of the amounts standing in the names of the individual account holders representing the credit of Bofors money and the nature of such accounts. The follow up consequences would be that the corpus of the offence would be preserved intact by preventing the withdrawal of the money from those accounts or closure of the accounts by the account holders till the merit of the case is decided.

79. The rule of audi alteram partem is a rule of justice and its application is excluded where the rule will itself lead to injustice. In A.S. de Smith's Judicial Review of Administrative Action, 4th Ed. at page 184, it is stated that in administrative law, a prima facie right to prior notice and opportunity to be heard may be held to be excluded by implication in the presence of some factors, singly or in combination with another. Those special factors are mentioned under items (1) to (10) under the heading "Exclusion of the audi alteram partem rule'.

80. Thus, there is exclusion of the application of audi alteram partem rule to cases where nothing unfair can be inferred by not affording an opportunity to present and meet a case. This rule cannot be applied to defeat the ends of justice or to make the law 'lifeless, absurd, stultifying and self-defeating or plainly contrary to the common sense of the situation' and this rule may be jettisoned in very exceptional circumstances where compulsive necessity so demands.

81. Bhagwati, J. (as the learned Chief Justice then was) in Maneka Gandhi speaking for himself, Untawalia and Murtaza Fazal Ali, JJ. has stated thus:

Now, it is true that since the right to prior notice and opportunity of hearing arises only by implication from the duty to act fairly, or to use the words of Lord Morris of Borth-y-Gest, from 'fair play in action', it may equally be excluded where, having regard to the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provision, fairness in action does not demand its implication and even warrants its exclusion.

82. Thus, it is seen from the decision in Maneka Gandhi that there are certain exceptional circumstances and situations whereunder the application of the rule of audi alteram pattern is not attracted.

83. Paul Jackson in Natural Justice at pages 112 and 113 observed thus:

...It was seen that any body making a decision affecting party's right or legitimate expectation must observe the rules of natural justice. Conversely a decision which does not affect rights, because for example, it is a preclude to taking further proceedings in the course of which the party concerned will have an opportunity to be heard, will, very likely, not itself be subject to the requirements of natural justice, or only in a modification form. A fortiori, the decision by, for example, the responsible Minister or official to initiate the procedure necessary to reach a preliminary conclusion or to examine the existence of a prima facie case can be taken without first giving the person affected a hearing....

85. In R. v. Peterborough Justice, ex.p. Hicks (1977) 1 W.L.R. 1371, it has been held that search warrants under the Forgery Act, 1913 Section 13 may issue without the party affected being heard.

86. A Division Bench of the Allahabad High Court in Indian Explosive Ltd. (Fertiliser Division) Panki Kanpur v. State of Uttar Pradesh and Ors.   MANU/UP/0300/1981 : (1981)IILLJ159All after referring to the decision in Ragina (supra) and Norwest Holst Ltd. v. Secretary of State for Trade (1978) 1 Ch. Div. 202 said thus:

Thus, it has been recognised by Judges of undoubted eminence that a decision on substantive rights of parties is one thing and a mere decision that another body investigate and decide on those substantive rights is quite another, and the principle of hearing is not applicable to the latter class of cases.

87. The principle of law that could be deduced from the above decisions is that it is no doubt true that the fact that a decision, whether a prima facie case has or has not been made out, is not by itself determinative of the exclusion of hearing, but the consideration that the decision was purely an administrative one and a full-fledged enquiry follows is a relevant - and indeed a significant - factor in deciding whether at that stage there ought to be hearing which the statute did not expressly grant.

88. Applying the above principle, it may be held that when the investigating officer is not deciding any matter except collecting the materials for ascertaining whether a prima facie case is made out or not and a full enquiry in case of filing a report under Section 173(2) follows in a trial before the Court or Tribunal pursuant to the filing of the report, it cannot be said that at that stage rule of audi alteram partem superimposes an obligation to issue a prior notice and hear the accused which the statute does not expressly recognise. The question is not whether audi alteram partem is implicit, but whether the occasion for its attraction exists at all.

89. Under the scheme of Chapter XII of the CrPC, there are various provisions under which no prior notice or opportunity of being heard is conferred as a matter of course to an accused person while the proceeding is in the stage of an investigation by a police officer.

90. In State of Haryana v. Bhajan Lal   MANU/SC/0012/1992 : AIR1992SC81 at 359, this Court to which both of us (Ratnavel Pandian and K. Jayachandra Reddy, JJ.) were parties after making reference to the decision of the Privy Council in Emperor v. Khwaja Nazir Ahmad   MANU/PR/0007/1944 and the decision of this Court in State of Bihar v. J.A.C. Saldanha   MANU/SC/0054/1967 : 1968CriLJ97 has pointed out that"...the field of investigation of any cognizable offence is exclusively within the domain of the investigating agencies over which the courts cannot have control and have no power to stifle or impinge upon the proceedings in the investigation so long as the investigation proceeds in compliance with the provisions relating to investigation...."

91. More so, the accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under Section 173(2) of the Code or in a proceeding instituted otherwise than on a police report till the process is issued under Section 204 of the Code, as the case may be. Even in cases where cognizance of an offence is taken on a complaint notwithstanding that the said offence is triable by a Magistrate or triable exclusively by the Court of Sessions, the accused has no right to have participation till the process is issued. In case the issue of process is postponed as contemplated under Section 202 of the Code, the accused may attend the subsequent inquiry but cannot participate. 

93. Under Section 235(2), in a trial before a Court of Sessions and under Section 248(2) in the trial of warrant cases, the accused as a matter of right, is to be given an opportunity of being heard. Unlike the above provisions which we have referred to above by way of illustration, the provisions relating to the investigation under Chapter XII do" not confer any right of prior notice and hearing to the accused and on the other hand they are silent in this respect.

94. It is relevant and significant to note that a police officer, in charge of a police station, or a police officer making an investigation can make and search or cause search to be made for the reasons to be recorded without any warrant from the Court or without giving the prior notice to any one or any opportunity of being heard. The basic objective of such a course is to preserve secrecy in the mode of investigation lest the valuable evidence to be unearthed will be either destroyed or lost. We think it unnecessary to make a detailed examination on this aspect except saying that an accused cannot claim any right of prior notice or opportunity of being heard inclusive of his arrest or search of his residence or seizure of any property in his possession connected with the crime unless otherwise provided under the law.

97. If prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation lifeless, absurd and self-defeating. Further, the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 567 of 1992

Decided On: 17.12.1992

Union of India (UOI) and Ors. Vs. W.N. Chadha

Hon'ble Judges/Coram:

S.R. Pandian and K. Jayachandra Reddy, JJ.

Author: S.R. Pandian, J.

Citation:  MANU/SC/0149/1993,1993 SCC (Cri) 1171,AIR 1993 SC 1082

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Whether accused can claim benefit of default bail if investigation regarding other accused is going on?

  It is a well-settled principle of interpretation of statute that it

is to be read in its entirety. Construction of a statute should be

made in a manner so as to give effect to all the provisions

thereof. Remand of an accused is contemplated by Parliament

at two stages; pre-cognizance and post-cognizance. Even in

the same case, depending upon the nature of charge-sheet

filed by the investigating officer in terms of Section 173 of the

Code, a cognizance may be taken as against the person

against whom an offence is said to have been made out and

against whom no such offence has been made out even when

investigation is pending. So long a charge-sheet is not filed

within the meaning of sub-section (2) of Section 173 of the

Code, investigation remains pending. It, however, does not

preclude an investigating officer, as noticed hereinbefore, to

carry on further investigation despite filing of a police report, in

terms of sub-section (8) of Section 173 of the Code.

39. The statutory scheme does not lead to a conclusion in

regard to an investigation leading to filing of final form under

sub-section (2) of Section 173 and further investigation

contemplated under sub-section (8) thereof. Whereas only

when a charge-sheet is not filed and investigation is kept

pending, benefit of proviso appended to sub-section (2) of

Section 167 of the Code would be available to an offender;

once, however, a charge-sheet is filed, the said right ceases.

Such a right does not revive only because a further

investigation remains pending within the meaning of subsection

(8) of Section 173 of the Code.”{Para 38}

25. In view of the afore-stated legal position, we have no hesitation in holding that the chargesheet having been filed against the respondents-accused within the prescribed time limit and the cognizance having been taken by the Special Court of the offences allegedly committed by them, the respondents could not have claimed the statutory right of default bail under Section167(2) on the ground that the investigation qua other accused was pending. Both, the Special Court as well as the High Court having committed serious error of law in disregarding the legal position enunciated and settled by this Court, the impugned orders deserve to be set aside and are accordingly set aside.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 391 OF 2024

( @ SPECIAL LEAVE PETITION (Crl.) No. 11775 OF 2023)

CENTRAL BUREAU OF INVESTIGATION Vs

KAPIL WADHAWAN & ANR

Author: BELA M. TRIVEDI, J.

Dated: JANUARY, 24TH 2024.

Citation: 2024 INSC 58.

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Can a magistrate automatically stop the investigation in a summons case on the expiry of six months, as per S 167(5) of the CRPC?

Under Section 167 (5) of the Code of Criminal Procedure, in any case triable by a Magistrate as a summons-case, if the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of investigation beyond the period of six months is necessary. The provision unequivocally states that the Magistrate can stop investigation on contingency that the Investigating Officer has failed to satisfy the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary. There cannot be any automatic order without anything else on expiry of a period of six months from the date of arrest. 

 IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION

APPELLATE SIDE

CRR 3168 of 2012

I.A. No. CRAN/3/2014 (Old No. CRAN/4575/2014)

Kamal Ghosh & Anr. Vs. The State of West Bengal & Anr.

Before: Hon’ble Justice Sugato Majumdar

Judgment on : 23.03.2023

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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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Under which circumstances Magistrate who has no jurisdiction to try the case can release seized property U/S 457 of CRPC?

  On a reading of Section 457 Cr.P.C, we find that the said provision coverers a wide spectrum and would apply to all kinds of seizures under the Cr.P.C. On a reading of the words “and such property is not produced before a Criminal Court during an inquiry or trial” appearing in Section 457 Cr.P.C, the same does not necessarily mean that the report of the seizure of property to a Magistrate would be given to the same Magistrate who would hold an inquiry of the case under Section 2(g) of the Code and the trial of the case. The report of the seizure of property could be to a different Magistrate than the one who would conduct the inquiry or trial. The report of the seizure of property under Section 457 Cr.P.C which has not been produced at the stage of investigation, could be to a Magistrate who may not have the jurisdiction to hold the inquiry or trial on the submission of the charge-sheet in the said case. As such, we are of the view that the power conferred under Section 457 Cr.P.C cannot be given a restrictive meaning, as the power under the said provision can be exercised by a Magistrate who has no power to hold an inquiry or trial of the case, in which the seized property is involved in. {Para 43}

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Crl.Pet 284/2022

The State of Assam and Another.  Vs Ram Sankar Maurya. 

BEFORE

HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA

HON’BLE MRS. JUSTICE MALASRI NANDI

Author: (M. Zothankhuma, J)

Date of judgment : 02.03.2023.

Read full Judgment here: Click here

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Can the court release seized property at the investigation stage U/S 457 of CRPC even if not produced before the court?

 The fact that the Hon’ble Supreme Court has given a direction to the learned Criminal Court to consider release of seized property/articles at the investigation stage under Section 457 Cr.P.C, shows that Section 457 Cr.P.C. can be applied by the Criminal Court at the investigation stage for release of seized

property.The submission made by the counsel for the appellant that the judgment of the Apex Court in Ram Prakash Sharma (supra) did not deliberate on the scope of Section 457 Cr.P.C, for granting custody of seized property at the stage of investigation cannot be accepted by us. While different situations and circumstances could arise in respect of seized property, one situation that can arise is when the police submit a final negative report and the police authorities fail to release custody of the seized property in terms of

Section 102 Cr.P.C. In that case, there would be no remedy for the aggrieved person, except to approach the High Court under Section 482 Cr.P.C or Article 226 of the Constitution, which would be a difficult task for people living in far flung areas and those belonging to the weaker sections of society. In that event,

Section 457 Cr.P.C would become redundant. After considering the decisions of the Apex Court and the various High Courts alongwith Section 457 Cr.P.C, we are of the considered opinion that the words “and such property is not produced before a Criminal Court during an inquiry or trial”, appearing in sub-Section (1) of Section 457 Cr.P.C, cannot be restricted to mean that the stage of inquiry or trial is a condition precedent, for a Court to have jurisdiction for exercising power under Section 457 Cr.P.C. at the investigation stage. We are of the view that the words “and such property is not produced before a Criminal Court during the inquiry or trial” appearing in Section 457(1) Cr.P.C would have to be considered to be a reference to a stage of investigation and not the stage of inquiry or trial. Further, we are bound by the decision of the Apex Court in Ram Prakash Sharma (supra) , in terms of Article 141 of the Constitution of India, as it is the mandate of the Constitution that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. Also, in the case of Anil Kumar Neotia vs. Union of India & Others, reported in AIR 1988

SC 1353, it has been held that the High Court cannot question the correctness of the decision of the Supreme Court, even though the points stated before the High Court were not considered by the Supreme Court. {Para 44}

45. In view of the reasons stated above, we answer the reference by holding that at the investigation stage, seized articles cannot be released by a Court under Section 451 Cr.P.C. However, under Section 457 Cr.P.C., the Criminal Court has the jurisdiction to give custody of seized property/articles at the stage of investigation, when those seized property are not produced before the Court.

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Crl.Pet 284/2022

The State of Assam and Another.  Vs Ram Sankar Maurya. 

BEFORE

HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA

HON’BLE MRS. JUSTICE MALASRI NANDI

Author: (M. Zothankhuma, J)

Date of judgment : 02.03.2023

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Supreme Court Guidelines for recording evidence of victim woman of sexual offences

  The legislature has, at places, moulded criminal procedure to enable victims of sexual crimes to seek justice. This has been done in recognition of the gravity of sexual crimes and the need to handle such cases in an appropriately sensitive manner. For instance, Section 327 CrPC provides for in camera trials to be conducted with respect to offences punishable under Sections 376, 376A, 376B, 376C or 376D of the Indian Penal Code 1860. {Para 33}

34. This Court, too, has had its role to play in ensuring that justice does not remain inaccessible. In State of Maharashtra v. Bandu @ Daulat,10 this Court directed that special centres be set up in each state in order to facilitate depositions by vulnerable witnesses, including victims of sexual offences. In Smruti Tukaram Badade v. State of Maharashtra,11 a two-judge bench of this Court (of which one of us, Dr. DY Chandrachud, J. was a part) supplemented the directions issued in Bandu @ Daulat (supra) with respect to setting up such special centres.

35. It is the duty and responsibility of trial courts to deal with the aggrieved persons before them in an appropriate manner, by:

a. Allowing proceedings to be conducted in camera, where appropriate, either under Section 327 CrPC or when the case otherwise involves the aggrieved person (or other witness) testifying as to their experience of sexual harassment / violence;

b. Allowing the installation of a screen to ensure that the aggrieved woman does not have to see the accused while testifying or in the alternative, directing the accused to leave the room while the aggrieved woman’s testimony is being recorded;

c. Ensuring that the counsel for the accused conducts the cross-examination of the aggrieved woman in a respectful fashion and without asking inappropriate questions, especially regarding the sexual history of the aggrieved woman. Cross-examination may also be conducted such that the counsel for the accused submits her questions to the court, who then poses them to the aggrieved woman;

d. Completing cross-examination in one sitting, as far as possible.

IN THE SUPREME COURT OF INDIA 

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No 1184 of 2022 

XYZ Versus State of Madhya Pradesh & Ors.

Coram: DR. DHANANJAYA Y. CHANDRACHUD; J., J.B. PARDIWALA; J. 

Author: Dr. Dhananjaya Y. Chandrachud, J.

Dated: August 05, 2022.

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Supreme Court: Hold In-Camera Trial In All Sexual Harassment Cases, Apart From Rape Cases

  The legislature has, at places, moulded criminal procedure to enable victims of sexual crimes to seek justice. This has been done in recognition of the gravity of sexual crimes and the need to handle such cases in an appropriately sensitive manner. For instance, Section 327 CrPC provides for in camera trials to be conducted with respect to offences punishable under Sections 376, 376A, 376B, 376C or 376D of the Indian Penal Code 1860.

34. This Court, too, has had its role to play in ensuring that justice does not remain inaccessible. In State of Maharashtra v. Bandu @ Daulat,10 this Court directed that special centres be set up in each state in order to facilitate depositions by vulnerable witnesses, including victims of sexual offences. In Smruti Tukaram Badade v. State of Maharashtra,11 a two-judge bench of this Court (of which one of us, Dr. DY Chandrachud, J. was a part) supplemented the directions issued in Bandu @ Daulat (supra) with respect to setting up such special centres.

35. It is the duty and responsibility of trial courts to deal with the aggrieved persons before them in an appropriate manner, by:

a. Allowing proceedings to be conducted in camera, where appropriate, either under Section 327 CrPC or when the case otherwise involves the aggrieved person (or other witness) testifying as to their experience of sexual harassment / violence;

IN THE SUPREME COURT OF INDIA 

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No 1184 of 2022 

XYZ Versus State of Madhya Pradesh & Ors.

Coram: DR. DHANANJAYA Y. CHANDRACHUD; J., J.B. PARDIWALA; J. 

Author: Dr. Dhananjaya Y. Chandrachud, J.

Dated: August 05, 2022.

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Supreme Court: Magistrate Should Order Police Investigation U/S 156(3) CrPC When Cognizable Offence of sexual harassment Is Prima Facie Found

  We cannot help but note that the police’s inaction in this case is most unfortunate. It is every police officer’s bounden duty to carry out his or her functions in a public-spirited manner. The police must be cognizant of the fact that they are usually the first point of contact for a victim of a crime or a complainant. They must abide by the law and enable the smooth registration of an FIR. Needless to say, they must treat all members of the public in a fair and impartial manner. This is all the more essential in cases of sexual harassment or violence, where victims (who are usually women) face great societal stigma when they attempt to file a complaint. It is no secret that women’s families often do not approve of initiating criminal proceedings in cases of sexual harassment. Various quarters of society attempt to persuade the survivor not to register a complaint or initiate other formal proceedings, and they often succeed. Finally, visiting the police station and interacting with police officers can be an intimidating experience for many. This discomfort is often compounded if the reason for visiting the police station is to complain of a sexual offence. {Para 16}

17. This being the case, the police ought not to create yet another obstacle by declining to register an FIR despite receiving a complaint regarding sexual harassment. Rather, they should put the complainant at ease and try to create an atmosphere free from fear. They ought to be sensitive to her mental state and the fact that she may have recently been subjected to a traumatic experience.

18. Whether or not the offence complained of is made out is to be determined at the stage of investigation and / or trial. If, after conducting the investigation, the police find that no offence is made out, they may file a B Report under Section 173 CrPC. However, it is not open to them to decline to register an FIR. The law in this regard is clear - police officers cannot exercise any discretion when they receive a complaint which discloses the commission of a cognizable offence.

IN THE SUPREME COURT OF INDIA 

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No 1184 of 2022 

XYZ Versus State of Madhya Pradesh & Ors.

Coram: DR. DHANANJAYA Y. CHANDRACHUD; J., J.B. PARDIWALA; J. 

Author: Dr. Dhananjaya Y. Chandrachud, J.

Dated: August 05, 2022

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Whether investigating officer can seek Production warrant U/S 267 of CRPC for recording statement of a witness during investigation?

 Section 267(1) of the Cr.P.C under which the appellant had moved an application before the trial Court reads as under: 

“267. Power to require attendance of prisoners. (1) Whenever, in the course of an inquiry, trial or other proceeding under this Code, it appears to a Criminal Court,- (a) that a person confined or detained in a prison should be brought before the Court for answering to a charge of an offence, or for the purpose of any proceedings against him, or (b) that it is necessary for the ends of justice to examine such person as a witness, the Court may make an order requiring the officer in charge of the prison to produce such person before the Court for answering to the charge or for the purpose of such proceeding or, as the case may be, for giving evidence. (2)…………………………………………………………………..

(3)………………………………………………………………….

30 Form a plain reading of Section 267(1), it clearly transpires that a Criminal Court, in the course of an enquiry, trial or other proceedings under the Code of Criminal Procedure, can direct a person confined or detained in a prison to be produced before the Court for answering to a charge of an offence or for the purpose of any proceedings against him. The criminal Court is further empowered to direct the officer in-charge of the prison to produce any person who is required to be examined as a witness for the purpose of giving evidence.

 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

CrlA(D) No. 46/2022 ,CrlM No. 1474/2022

National Investigation Agency Through Its Chief Investigating Officer, Jammu Vs Mr. Vishal Sharma, DSGI.

CORAM:

HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

HON’BLE MR. JUSTICE MOHAN LAL, JUDGE

Author: Sanjeev Kumar, J.

Pronounced on 13..12.2022.

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Supreme court: Failure To Produce Accused Before The Court While Considering Application For Extension Of Time For Investigation Amounts To Violation Of Fundamental Right

 Clause (b) of subsection (2) of Section 167 of CrPC lays down that no Magistrate shall authorise the detention of the accused in the custody of the police unless the accused is produced before him in person. It also provides that judicial custody can be extended on the production of the accused either in person or through the medium of electronic video linkage. Thus, the requirement of the law is that while extending the remand to judicial custody, the presence of the accused has to be procured either physically or virtually. This is the mandatory requirement of law. This requirement is sine qua non for the exercise of the power to extend the judicial custody remand. The reason is that the accused has a right to oppose the prayer for the extension of the remand. When the Special Court exercises the power of granting extension under the proviso to subsection (2) of Section 20 of the 2015 Act, it will necessarily lead to the extension of the judicial custody beyond the period of 90 days up to 180 days. Therefore, even in terms of the requirement of clause (b) of subsection (2) of Section 167 of CrPC, it is mandatory to procure the presence of the accused before the Special Court when a prayer of the prosecution for the extension of time to complete investigation is considered. In fact, the Constitution Bench of this Court in the first part of paragraph 53(2)(a) in its decision in the case of Sanjay Dutt2 holds so. The requirement of the report under proviso added by subsection (2) of Section 20 of the 2015 Act to clause (b) of subsection (2) of Section 167 of CrPC is twofold. Firstly, in the report of the Public Prosecutor, the progress of the investigation should be set out and secondly, the report must disclose specific reasons for continuing the detention of the accused beyond the said period of 90 days. Therefore, the extension of time is not an empty formality. The Public Prosecutor has to apply his mind before he submits a report/ an application for extension. The prosecution has to make out a case in terms of both the aforesaid requirements and the Court must apply its mind to the contents of the report before accepting the prayer for grant of extension.

{Para 28}

29. As noted earlier, the only modification made by the larger Bench in the case of Sanjay Dutt2 to the decision in the case of Hitendra Vishnu Thakur1 is about the mode of service of notice of the application for extension. In so many words, in paragraph 53(2)(a) of the Judgment, this Court in the case of Sanjay Dutt2 held that it is mandatory to produce the accused at the time when the Court considers the application for extension and that the accused must be informed that the question of extension of the period of investigation is being considered. The accused may not be entitled to get a copy of the report as a matter of right as it may contain details of the investigation carried out. But, if we accept the submission of the respondents that the accused has no say in the matter, the requirement of giving notice by producing the accused will become an empty and meaningless formality. Moreover, it will be against the mandate of clause (b) of the proviso to subsection (2) of section 167 of CrPC. It cannot be accepted that the accused is not entitled to raise any objection to the application for extension. The scope of the objections may be limited. The accused can always point out to the Court that the prayer has to be made by the Public Prosecutor and not by the investigating agency. Secondly, the accused can always point out the twin requirements of the report in terms of proviso added by subsection (2) of Section 20 of the 2015 Act to subsection (2) of Section 167 of CrPC. The accused can always point out to the Court that unless it is satisfied that full compliance is made with the twin requirements, the extension cannot be granted.

30. The logical and legal consequence of the grant of extension of time is the deprivation of the indefeasible right available to the accused to claim a default bail. If we accept the argument that the failure of the prosecution to produce the accused before the Court and to inform him that the application of extension is being considered by the Court is a mere procedural irregularity, it will negate the proviso added by subsection (2) of Section 20 of the 2015 Act and that may amount to violation of rights conferred by Article 21 of the Constitution. The reason is the grant of the extension of time takes away the right of the accused to get default bail which is intrinsically connected with the fundamental rights guaranteed under Article 21 of the Constitution. The procedure contemplated by Article 21 of the Constitution which is required to be followed before the liberty of a person is taken away has to be a fair and reasonable procedure. In fact, procedural safeguards play an important role in protecting the liberty guaranteed by Article 21. The failure to procure the presence of the accused either physically or virtually before the Court and the failure to inform him that the application made by the Public Prosecutor for the extension of time is being considered, is not a mere procedural irregularity. It is gross illegality that violates the rights of the accused under Article 21.

IN THE SUPREME COURT OF INDIA

 CRIMINAL APPELLATE JURISDICTION 

Jigar @ Jimmy Pravinchandra Adatiya v. State of Gujarat

Coram: AJAY RASTOGI; J., ABHAY S. OKA; J. 

Author: Abhay S. Oka, J.

Dated: September 23, 2022. 

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