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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Discuss the role and function of police for prevention of crime under Criminal procedure Code

 Chapter XI

PREVENTIVE ACTION OF THE POLICE

S 149 of CRPC-  Police to prevent cognizable offences.—Every police officer may interpose for the purpose of preventing, and shall, to the best of his ability, prevent, the commission of any cognizable offence.

150. Information of design to commit cognizable offences.—Every police officer receiving information of a design to commit any cognizable offence shall communicate such information to the police officer to whom he is subordinate, and to any other officer whose duty it is to prevent or take cognizance of the commission of any such offence.

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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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SOP on preliminary enquiry by police under BNSS 2023

 https://drive.google.com/file/d/1TsMTdAS3NJMJ0C6FupMmYpd-MZk9_jj9/view?usp=sharing

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Whether police can say that accused is not co-operating if he is exercising his right to remain silent?

 It is relevant to note that though it is within the powers of the

Investigating Agency to interrogate, the accused has a right to

remain silent. The right to silence emanates from Article 20(3) of

the Indian Constitution, which gives an accused the right against

self incrimination. Suffice it to say that exercise of the right to

remain silent cannot be equated with non co-operation. {Para 29}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO. 378 OF 2023 WITH

INTERIM APPLICATION NO. 804 OF 2023

Chanda Kochhar Vs Central Bureau of Investigation

CORAM : ANUJA PRABHUDESSAI, &

N. R. BORKAR, JJ.

DATED : 6th FEBRUARY, 2024.

Read full Judgment here: Click here.

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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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Supreme Court: Police Must Exercise Heightened Caution When Drawn Into Dispute Involving Unethical Transactions

 As parting suggestions, it becomes imperative to

state that the police should exercise heightened

caution when drawn into dispute pertaining to

such unethical transactions between private

parties which appear to be prima facie

contentious in light of previous inquiries or

investigations. The need for vigilance on the part

of the police is paramount, and a discerning eye

should be cast upon cases where unscrupulous

conduct appears to eclipse the pursuit of justice.

This case exemplifies the need for a circumspect

approach in discerning the genuine from the

spurious and thus ensuring that the resources of

the state are utilised for matters of true societal

import. {Para 15}

16. For all the reasons recorded above, we are of the

view that such criminal prosecution should not

be allowed to continue where the object to lodge

the FIR is not for criminal prosecution and for

punishing the offender for the offence committed

but for recovery of money under coercion and

pressure and also for all the other reasons

stipulated above.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2024

DEEPAK KUMAR SHRIVAS & ANR. Vs STATE OF CHHATTISGARH

Author: VIKRAM NATH, J.

Citation: 2024 INSC 117.

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Whether Police Must Secure Transit Remand For Arrests Outside State To Safeguard Rights of accused Under Article 22 of constitution?

  Section 48 of Code of Criminal Procedure permits the police to pursue an Accused in other jurisdictions. A police officer, for the purpose of arresting without a warrant, one whom he is allowed to arrest, may pursue an individual anywhere in India. Prior to effecting the arrest outside a particular jurisdiction, the police is obligated to secure the transit remand i.e. the remand of the Accused, for taking him from one place to another in their own custody, usually for the purpose of producing him before the concerned magistrate who has jurisdiction to try/commit the case. The primary purpose of such a remand is to enable the police to shift the person in custody from the place of arrest to the place where the matter can be investigated and tried.

{Para 34}

35. Perhaps the need and necessity for transit anticipatory bail has occasioned because the police has been conferred power under the Code of Criminal Procedure to pursue an Accused in other jurisdictions. Immediately upon affecting the arrest of a person outside the jurisdiction where the offence is registered, the police is obligated to secure a transit remand. The arrested person has to be produced before the nearest magistrate. If such a magistrate finds that he has no jurisdiction to try the case in which the Accused has been arrested, he may order the Accused to be forwarded to a magistrate having the jurisdiction to try the case or to commit it for trial. Thus, the police is obligated to secure a transit remand of the Accused for taking him from the place where he is arrested to the place where the crime is registered, for production before the competent magistrate in terms of the requirement of Article 22. As we have already noted, the primary purpose of such a transit remand is to enable the police to shift the person in custody from the place of arrest to the place where the matter can be investigated. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. ... of 2023 (Arising out of SLP (Crl.) Nos. 11423-11426 of 2023 (Arising out of Diary No. 7943 of 2023))

Decided On: 20.11.2023

Priya Indoria Vs. State of Karnataka and Ors.

Hon'ble Judges/Coram:

B.V. Nagarathna and Ujjal Bhuyan, JJ.

Author: B.V. Nagarathna, J.

Citation:  MANU/SC/1246/2023.

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Bombay HC Directs Police To file Photos of victim in sealed cover alongwith chargesheet to avoid disclosure of identity of Victim of Sexual assault

We would like to specifically mention here that Section 228-A was inserted in Indian Penal Code with effect from 25.12.1983, which prohibits disclosure of identity of the victim of certain offences. By S. 4 of Act 13 of 2013, words "offence under Sections 376, 376A, 376B, 376C or section 376D" were substituted/inserted with effect from 03.02.2013. Thereafter, by Act 22 of 2018 further amendment in respect of other Sections has been made with effect from 21.04.2018. Thus, the identity of the victim cannot be disclosed by any of the authorities in the charge-sheet. Nowadays, we are finding that photographs are taken i.e. either the old photographs are collected or even victim showing the spot of occurrence are taken and those photographs are produced in the charge-sheet. We do not say that such photographs should not be collected or should not be taken, but we expect that those photographs should not be openly added as part of charge-sheet. A charge-sheet travels from the office of the investigating agency (may be handled by many persons), then it comes to either the Court of Judicial Magistrate First Class or directly presented before the learned Special Judge where also it is handled by many persons. Under such circumstance, the identity of the victim is disclosed. The investigating agency has to be sensitive in the matter. If they want to produce such documents, then it should be put in a sealed envelope including in the copies of the charge-sheet also, so that the identity of the victim is not disclosed in any manner. In the catena of judgments of the Hon'ble Apex Court as well as this Court, it has been stressed that the identity of the victim in such cases, i.e. under Section 376 and other Sections of Indian Penal Code, POCSO Act, should not be disclosed. We are constrained to make these observations, as we are coming across such incidences time and again. We may also observe that when it was found that the accused facing charge under these Sections want to rely on certain photographs in which victim is seen then those photographs are openly placed/annexed in the petition. Coordinate Bench at Principal Seat has given directions that they should be filed under sealed envelope. We take those directions further and direct all the concerned agencies, who are dealing with the investigation of such crime that henceforth the photographs of such victims should be filed in sealed envelope before the concerned Courts. We may also say that failure to follow the directions may invite the action for the offence under Section 228-A of the Indian Penal Code. These directions are also to the concerned Courts where the charge-sheet is accepted. They should also see that such photographs are produced in sealed envelope before them and the identity of the victim is not disclosed in any manner.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Appeal No. 869 of 2022

Decided On: 08.02.2023

Sajjan  Vs.  The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

Vibha Kankanwadi and Abhay S. Waghwase, JJ.

Citation: MANU/MH/0509/2023.

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Whether the court can grant remainder days of police custody remand of accused if police could not interrogate him previously if he was admitted in hospital?

7.1. It is true that in the case of Anupam J. Kulkarni (supra), this Court observed that there cannot be any police custody beyond 15 days from the date of arrest. In our opinion, the view taken by this Court in the case of Anupam J. Kulkarni (supra) requires re-consideration. When we put a very pertinent question to Shri Neeraj Kishan Kaul, learned Senior Counsel appearing on behalf of the Respondent-Accused that in a given case it may happen that the learned trial/Special Court refuses to grant the police custody erroneously which as such was prayed within 15 days and/or immediately on the date of arrest and thereafter the order passed by the trial/Special Court is challenged by the investigating agency before the higher Court, namely, Sessions Court or the High Court and the higher Court reverses the decision of the learned Magistrate refusing to grant the police custody and by that time the period of 15 days is over, what would be position? The learned Senior Counsel is not in a position to answer the court query.

8. Be that as it may, the facts in the present case are very glaring. Despite the fact that on 16.04.2021, the learned Special Judge allowed police custody of the Respondent-Accused for seven days i.e., up to 22.04.2021, the Respondent-Accused got himself admitted in the hospital during the period of police custody, i.e., on 18.04.2021 and obtained interim bail on 21.04.2021 which came to be extended till 08.12.2021 when his interim bail came to be cancelled by the learned Special Judge by observing that the Accused has misused the liberty shown to him and during the interim bail he has not cooperated with the investigating agency. At the cost of repetition, it is observed that initial order of grant of seven days police custody attained finality. However, due to the aforesaid reasons of having got the Accused himself hospitalised on 18.04.2021 and thereafter obtaining the interim bail on 21.04.2021, the CBI could not interrogate the Accused in the police custody though having a valid order in its favour. Thus, the Respondent-Accused has successfully avoided the full operation of the order of police custody granted by the learned Special Judge. No Accused can be permitted to play with the investigation and/or the court's process. No Accused can be permitted to frustrate the judicial process by his conduct. It cannot be disputed that the right of custodial interrogation/investigation is also a very important right in favour of the investigating agency to unearth the truth, which the Accused has purposely and successfully tried to frustrate. Therefore, by not permitting the CBI to have the police custody interrogation for the remainder period of seven days, it will be giving a premium to an Accused who has been successful in frustrating the judicial process.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 957 of 2023

Decided On: 10.04.2023

Central Bureau of Investigation Vs. Vikas Mishra

Hon'ble Judges/Coram:

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

Author: M.R. Shah, J.

Citation:  MANU/SC/0342/2023,2023/INSC/345

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Can The Home Secretary order further investigation or reinvestigation of a Criminal case by another agency?

 That thereafter, non-bailable warrant was issued against Respondent No. 8 and only thereafter, mother of Respondent No. 8 - Accused moved an application before the Secretary (Home) for further investigation and he transferred the investigation to CBCID, inter-alia, on the ground that the so-called eye witnesses of the murder were not the eye witnesses. The request of the mother of Accused has been accepted by the Secretary (Home) and the investigation was transferred to another agency, namely, CBCID despite the fact that after the first chargesheet, the investigation was handed over to the District Crime Branch to further investigate the case and they filed the supplementary chargesheet in which Respondent Nos. 8 and 11 were even chargesheeted. Therefore, as such it is not a case of further investigation, but is a case of reinvestigation by another agency. The order passed by the Secretary (Home) transferring the investigation/ordering further investigation by another agency and that too, on the basis of the application/complaint submitted by mother of the Accused is un- known to law.

7.1. There cannot be any dispute that even after the chargesheet is filed, it is the right of the investigating officer to further investigate in respect of offence even after a report Under Sub-section (2) of Section 173 of Code of Criminal Procedure forwarded to a Magistrate and as observed and held by this Court the prior approval of the Magistrate is not required. However, as per the settled position of law, so far as the reinvestigation is concerned, the prior permission/approval of the Magistrate is required. In the present case, the Secretary (Home) has passed an order for further investigation by CBCID and thereafter, the CBCID has sent the intimation to the learned Magistrate. No prior approval/permission as observed by the High Court has been accorded by the learned Magistrate. The High Court in the impugned judgment and order has observed that the further investigation is ordered with the concurrence of the Magistrate, which is factually incorrect. What is on record is only an intimation to the learned Magistrate which in any case cannot be said to be concurrence of the learned Magistrate.

7.2. In any case, as it is a case of reinvestigation, the same is not permissible and that too by another agency without the prior permission of the learned Magistrate even while exercising the powers Under Section 173(8) of the Code of Criminal Procedure Under what authority of law, the Secretary (Home) has transferred the investigation to another agency and/or ordered further investigation by another agency is not pointed out and that too at the instance of the Accused on the grounds which as such can be said to be the defences of the Accused which are required to be considered at the time of trial. The case on behalf of the Accused that as the Secretary (Home) is the head of the department and the further investigation was ordered by another agency on administrative side and therefore, the Secretary (Home) is justified in ordering further investigation by CBCID cannot be accepted. So far as the investigation is concerned under the scheme of the Code of Criminal Procedure, the Police Officer of the concerned Police Station, who is the investigating officer, has to investigate/further investigate the case under the supervision of Superintendent of Police. So far as the Secretary (Home) is concerned, he does not come into picture at all. If such powers are given to the Secretary (Home) in that case any Accused who is already chargesheeted may approach the Secretary (Home) and may get an order of further investigation or reinvestigation by another agency and obtain the fresh report nullifying the earlier chargesheet and get himself discharged. If the Accused is aggrieved by the chargesheet in that case, the remedy available to him would be either to file the quashing petition Under Section 482 of Code of Criminal Procedure and/or to move an appropriate application for discharge before the learned Magistrate and it is for the High Court and/or the learned Magistrate as the case may be, to quash criminal proceedings or discharge the Accused. The Secretary (Home) and/or any Accused who is already chargesheeted cannot be permitted to circumvent such provision. It is to be noted that in the present case, Respondent No. 8 - Accused earlier did file the quashing petition, but failed.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1294 of 2023 

 Bohatie Devi (Dead) through L.R.  Vs. The State of Uttar Pradesh and Ors.

Hon'ble Judges/Coram:

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

Author: M.R. Shah, J.

Decided On: 28.04.2023.

Citation: MANU/SC/0473/2023

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Can the accused seek default bail if the police have filed an incomplete chargesheet without obtaining sanction for prosecution?

In our view, grant of sanction is nowhere contemplated Under Section 167 Code of Criminal Procedure. What the said Section contemplates is the completion of investigation in respect of different types of cases within a stipulated period and the right of an Accused to be released on bail on the failure of the investigating authorities to do so. {Para 17}

18. None of the said cases detract from the position that once a charge-sheet is filed within the stipulated time, the question of grant of default bail or statutory bail does not arise. As indicated hereinabove, in our view, the filing of charge-sheet is sufficient compliance with the provisions of Section 167(2)(a)(ii) in this case. Whether cognizance is taken or not is not material as far as Section 167 Code of Criminal Procedure is concerned. The right which may have accrued to the Petitioner, had charge-sheet not been filed, is not attracted to the facts of this case. Merely because sanction had not been obtained to prosecute the Accused and to proceed to the stage of Section 309 Code of Criminal Procedure, it cannot be said that the Accused is entitled to grant of statutory bail, as envisaged in Section 167 Code of Criminal Procedure. 

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 1011 of 2023 and 1012 of 2023

Judgebir Singh and Ors.  Vs. National Investigation Agency

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, C.J.I. and J.B. Pardiwala, J.

Author: J.B. Pardiwala, J.

Decided On: 01.05.2023.

Citation: MANU/SC/0501/2023

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Supreme Court :The court should not release Accused on bail in Money Laundering Case if the police have filed Chargesheet In Predicate Offence

6.3 From the impugned judgment(s) and order(s)

passed by the High Court, it appears that

what is weighed with the High Court is that

chargesheet has been filed against respective

respondent No. 1 – accused and therefore, the

investigation is completed. However, the High

Court has failed to notice and appreciate that

the investigation with respect to the

scheduled offences under the PML Act, 2002

by the Enforcement Directorate is still going

on. Merely because, for the predicated

offences the chargesheet might have been

filed it cannot be a ground to release the

accused on bail in connection with the

scheduled offences under the PML Act, 2002.

Investigation for the predicated offences and

the investigation by the Enforcement

Directorate for the scheduled offences under

the PML Act are different and distinct.

Therefore, the High Court has taken into

consideration the irrelevant consideration.

The investigation by the Enforcement

Directorate for the scheduled offences under

the PML Act, 2002 is till going on.

7. As observed hereinabove, the High Court has

neither considered the rigour of Section 45 of

the PML Act, 2002 nor has considered the

seriousness of the offences alleged against

accused for the scheduled offences under the

PML Act, 2002 and the High Court has not at

all considered the fact that the investigation

by the Enforcement Directorate for the

scheduled offences under the PML Act, 2002

is still going on and therefore, the impugned

orders passed by the High Court enlarging

respective respondent No. 1 on bail are

unsustainable and the matters are required

to be remitted back to the High Court for

afresh decision on the bail applications after

taking into consideration the observations

made hereinabove.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1401 OF 2023

Directorate of Enforcement  Vs  Aditya Tripathi 

CRIMINAL APPEAL NO. 1402 OF 2023

Author: M.R. SHAH, J.

MAY 12, 2023

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Can the Motor accident claim tribunal direct police to Exhume the dead Body for DNA Test to ascertain that claimants are legal heirs of the deceased?

The present petition under Article 227 of the Constitution of India preferred by the legal heirs of Mr. Sujaat Ali assails the order dated 15.12.2023 passed by the learned Motor Accident Claim Tribunal. Vide the impugned order, the learned Tribunal has, after taking into account the Detailed Accident Report (DAR) filed by the Investigating Officer, directed that the grave of Mr. Sujaat Ali be dug up and a DNA test be performed on his body to verify whether the petitioners are his legal heirs, as claimed by them.

7. Having considered the submissions of the parties, this Court is prima facie unable to appreciate this stand taken by the respondent no.4 or the approach adopted by the learned Tribunal. Once a further investigation by the Police Authorities has already been directed, the impugned directions for digging up of the grave of a dead person to carry out a DNA test, were in my view wholly unwarranted. It appears that the learned Tribunal has failed to appreciate that the DNA test cannot be ordered in such a routine manner. In this regard, reference may be made to a recent decision of the Apex Court in SLP (C) No. 9855/2022 titled Aparna Ajinkya Firodia v. Ajinkya Arun Firodia.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

CM(M) 298/2023, CM APPL. 9122/2023 -Stay.

SUJAAT ALI (DECEASED) THROUGH LRS  Vs GOVERNMENT OF N.C.T OF DELHI & ORS. 

CORAM:

HON'BLE MS. JUSTICE REKHA PALLI

Dated:  24.02.2023

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Can Police Disclose WhatsApp Chats and Photos Collected During Investigation Under RTI Act?

I. Conclusions of the Court

28. The competing arguments advanced on behalf of the parties lead to the following conclusions :

a)􀀁 The designated Information Officer has a duty and an obligation to apply his

mind on the nature of the information which is to be furnished to an

applicant who has sought for such information. This obligation calls for an

active determination taking into account Section 8(1) (a)-(j) and whether an

overwhelming pressure of public interest justifies the disclosure of the information at hand.

b)􀀁 The determination must also involve an assessment of whether the personal

information has any nexus with a public activity or furnishing of such

information would cause an unwarranted invasion of the privacy of the

individual concerned.

c)􀀁 The IO must also take into account the mechanism provided under section

11 of the Act involving the information supplied by a third party and treated

as confidential by that third party. In essence, the disclosure must be with

the consent of the third party.

d)􀀁 The IO must also consider whether the information is in the public domain

on the date of the application made for it and trace the movement of the

information from the private to the public domain. In other words, the IO

must see whether the information was put in the public sphere voluntarily

or under threat or compulsion.

e)􀀁 The determination must also include a fact-check as to whether the

information travelled to the public domain at the instance of one party or all

the parties who created and shared the content of the information.

f)􀀁 The determination must be nuanced and sensitive where one of the parties

to the conversation is no longer alive. In such cases, the consent of the other

(living) party to the disclosure of the information may not be relevant for the

purposes of section 8(1)(j) of the Act.

g)􀀁 The significance of section 8(1)(j) which upholds the right to privacy and

ultimately the reputation and dignity of an individual under Article 21 of the

Constitution goes against the tide of a free flow of information and remains

steadfast in holding on to the private space of an individual. The significance

of this provision must not be forgotten or diluted under any circumstances

(Ref. Subramanian Swamy vs. Union of India, Ministry of Law; (2016) 7 SCC

221).

29. In view of the above discussion is allowed and disposed

of by directing the Police Authorities to immediately withdraw the entire series of

photographs and WhatsApp messages between the deceased and

and treat the same as private information which falls within the

clamp of section 8(1)(j) of The Right to Information Act. The authorities are to

ensure that the WhatsApp messages and the photographs are not disclosed to any

person or authority by way of an application under the Right to Information Act or

otherwise.

 IN THE HIGH COURT AT CALCUTTA

Constitutional Writ Jurisdiction

Appellate Side

X Vs. State of West Bengal & Ors.

Present :-

The Hon’ble Justice Moushumi Bhattacharya.

Delivered on : 29.09.2022.

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Whether Police Officer Can Summon A Person For Investigation From Outside Territorial Limits Of His Station Or Adjoining Station?

 From the plain reading of the sub-section (1) of Section 160 Cr.P.C, it is evident that for the purposes of investigation, a police officer can require attendance of a person situated within the limits of his own police station or that of the adjoining police station and not someone who is situated beyond the said territorial limits. A reference with benefit may be made here to the judgment dated 27.07.2010 of a Co-ordinate Bench of this court in a similar case in Ravinder Singh V. State and Anr. W.P. (Crl.) No. 971/2010. In that case, while quashing the summons, this court held that: "Reading of this Section makes it abundantly clear that notice under Section 160 Cr.P.C can be issued by an Investigating Officer or the police person concerned to a person residing within his own jurisdiction and at the most in the adjoining police station surrounding that police station. There may be 10 police stations adjoining that police station.... The Section does not need help of dictionaries or other judgments for understanding its meaning when there is no ambiguity and it is so clearly written either within his own police station or in the adjoining police station. I, therefore, consider that summons issued to the petitioner under Section 160 Cr.P. C in Delhi. which is not adjoining the police station of Rewari is without jurisdiction and the notice is. therefore. quashed." {Para 5.0 }

7.0. In view of the above facts and circumstances, the petitioners being residents of Delhi and having their office addresses of Noida, U.P, could not have been summoned under Section 160 Cr.P.C by Sub Divisional Police Officer, Pampore, Union Territory of Jammu and Kashmir. The summons issued to them were without jurisdiction and are therefore, quashed.

IN THE HIGH COURT OF DELHI AT NEW DELHI 

W.P. (CRL.)976/2022, Crl. M.A 8240/22 & Crl.M.A 10543/22

 JAMSHED ADIL KHAN & ANR. Vs UNION TERRITORY OF JAMMU AND KASHMIR AND ANR.

CORAM: HON'BLE MS. JUSTICE POONAM A. BAMBA 

Dated :08/07/2022 

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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 Offence U/S 505(2) IPC is made out against accused journalist if he reports Differences Between Police Departments?

 Before going into the facts and ratios laid down in above judgments, it will be material to consider the provisions and ingredients of Section 505(2) of the Indian Penal Code.

8. The following are the main ingredients:

(A) There must be either publication circulation of any statement or report.

(B) It must contain rumor or alarming news.

(C) It must be with the intention to create or promote feeling of enmity, hatred or ill will.

(D) It must be on account of religion, race, place of birth, casts or community.

Then, only it can be said that it violates the provisions of Section 505(2) of Indian Penal Code.  {Para 7}

9. It is true that the Petitioner in those two articles have said about a rift in between the staff of the Office of Deputy Police Commissioner on one hand and staff attached to Crime Branch of Solapur Unit. It is also true that by reading those two news articles, any person from the society will certainly form an opinion that there is a rift in between the police personnel of two offices. It is also true that it may not give a good message about overall functioning of the Police Commissionerate Office, Solapur. It is also true that it will create an alarm amongst the members of the society to the effect that whether Police of Solapur Commissionerate area are in a position to protect their interest in case of need and whether they are competent to maintain law and order.

21. In fact, the subject of two news articles does not relate to any of the categories mentioned in Section 505(2) of the Indian Penal Code. If we will say that any news article pertaining to two Sections of any Department will fall within the purview of Section 505(2) of the Indian Penal Code, in that case, we are interpreting the provisions of Section 505(2) of the Indian Penal Code too far and it is not expected by legislatures. Hence, we are not inclined to accept the submissions made on behalf of the prosecution. We reject it.

22. For the above discussions, we are of the considered opinion that the police have wrongly invoked the provisions of Section 505(2) of the Indian Penal Code to the facts before us. It is not warranted. It does not satisfy all ingredients of Section 505(2) of the Indian Penal Code. Hence, the application of that Section has to be struck down.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 2954 of 2018

Decided On: 06.05.2022

Amol Kashinath Vyavhare Vs. Purnima Chaugule Shrirangi and Ors.

Hon'ble Judges/Coram:

P.B. Varale and S.M. Modak, JJ.

Author: S.M. Modak, J.

Citation: MANU/MH/1613/2022

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