Supreme Court: Public prosecutor putting leading questions to its own witnesses will offend right to fair trial of accused

Leading question to be one which indicates to the witnesses the real or supposed fact which the prosecutor (plaintiff) expects and desires to have confirmed by the answer. Leading question may be used to prepare him to give the answers to the questions about to be put to him for the purpose of identification or to lead him to the main evidence or fact in dispute. The attention of the witness cannot be directed in Chief examination to the subject of the enquiry/trial. The Court may permit leading question to draw the attention of the witness which cannot otherwise by called to the matter under enquiry, trial or investigation. The discretion of the court must only be controlled towards that end but a question which suggest to the witness, the answer the prosecutor expects must not be allowed unless the witness, with the permission of the court, is declared hostile and cross-examination is directed thereafter in that behalf. Therefore, as soon as the witness has been conducted to the material portion of his examination, it is generally the duty of the prosecutor to ask the witness to state the facts or to give his own account of the matter making him to speak as to what he had seen. The prosecutor will not be allowed to frame his questions in such a manner that the witness by answering merely "yes" or "no" will give the evidence which the prosecutor wishes to elicit. The witness must account for what he himself had seen. Sections 145 and 154 of the Evidence Act is intended to provide for cases to contradict the previous statement of the witnesses called by the prosecution. Sections 143 and 154 provides the right to cross-examination of the witnesses by the adverse party even by leading questions to contradict answers given by the witnesses or to test the veracity or to drag the truth of the statement made by him. Therein the adverse party is entitled to put leading questions but Section 142 does not give such power to the prosecutor to put leading questions on the material part of the evidence which the witnesses intends to speak against the accused and the prosecutor shall not be allowed to frame questions in such a manner which the witness by answering merely yes or no but he shall be directed to give evidence which he witnessed. The question shall not be put to enable the witness to give evidence which the prosecutor wishes to elicit from the witness nor the prosecutor shall put into witness's mouth the words which he hoped that the witness will utter nor in any other way suggest to him the answer which it is desired that the witness would give. The counsel must leave the witness to tell unvarnished tale of his own account. Sample leading questions extracted hereinbefore clearly show the fact that the prosecutor led the witnesses what he intended that they should say the material part of the prosecution case to prove against the appellant which is illegal and obviously unfair to the appellant offending his right to fair trial enshrined under Article 21 of the Constitution. It is not a curable irregularity. {Para 11}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 326 of 1993 

Decided On: 27.04.1993

Varkey Joseph Vs. State of Kerala, 

Hon'ble Judges/Coram:

K. Ramaswamy and R.M. Sahai, JJ.

Author: K. Ramaswamy, J.

Citations: 1993 AIR 1892, 1993 SCR (3) 390, AIR 1993 SUPREME COURT 1892, 1994 AIR SCW 956, 1993 CRIAPPR(SC) 304, 1993 SCC(CRI) 1126, 1993 SC CRIR 587, 1993 (3) JT 421, 1993 (3) SCR 676, (1993) 1 LS 35, (1993) 3 CURCRIR 271, (1993) SC CR R 433, (1993) 2 CRIMES 449, (1994) 1 MADLW(CRI) 176, (1993) 2 ALLCRILR 344,MANU/SC/0295/1993

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Bombay HC: The court must release accused prosecuted for an offence under NDPS Act if there is non compliance of S 36A of NDPS Act

Section 36A which is in pari-materia to various

Sections in the special statutes like Section 21(2)(b) of MCOC

Act and Section 20(4)((b)(d) of the (The) Terrorist and

Distuptive Activities (Prevention) ACT, 1987 and Section 49(2)

(b) of the The Prevention of Terrorism Act, 2002 (POTA).

On reading of the said proviso appended to sub-section 4 of

Section 36A of NDPS Act, it can be clearly discerned that the

Special Court may extend the period of 180 days upto one year,

on the report of the Public Prosecutor, informing the Court about the progress of the investigation and the specific reason for

detention of the accused beyond the period of 180 days. {Para 11}

12 In the present case, as it can be seen that the Public

Prosecutor never submitted the report, but the Investigating

Officer directly preferred an application before the Court and

though the Public Prosecutor was present on the date of hearing

when the case was taken on Board, the application before the

Court was the one filed by the Investigating Officer.

It is settled position of law that when law requires a

particular thing to be done in a particular manner, then it shall be done only in that manner and in no other way.

13 The legislature intentionally contemplated submission

of the report by the Public Prosecutor and it also indicated what it should comprise of. The legislature did not purposely leave it to an Investigating Officer to make the application for seeking

extension of time. The legislature expect the investigation to be

completed with utmost promptitude but where it becomes

necessary to extend the period for completion of investigation,

the Investigating Agency, after inviting the attention of the Public Prosecutor to the said reasons, shall put up a report before the Court, apprising it about the progress of investigation and by furnishing reasons for further custody.

In case of Rajnikant Jivanlal & Ors.Vs. Intelligence

Officer, NCB, 1989 (3) SCC 532, the duty cast on the Public

Prosecutor was specifically highlighted in the background of the

power conferred on him, to submit the report before the

concerned Court when extension of custody is sought for.

14 The intention of the legislature, clearly surfacing

through the provision, to the effect that the report shall be

submitted by the Public Prosecutor before the Court, after proper application of mind. It is the provision designed to assist the designated Court to independently decide whether or not the

extension shall be granted. It is a serious business, as the further

incarceration of the accused in custody would be dependent upon

the Court being satisfied for the justification offered by the public Prosecutor who seek extension of the custody since the

investigation is not completed by the Investigating Officer within

the stipulated period.

15 It has been time and again reiterated that the Public

Prosecutor is neither the Post office of the Investigating Agency

nor he is forwarding agency, but he is charged with a statutory

duty and he must apply his mind to the facts and circumstances of the Court and his report must disclose on the face of it, that he

had applied his mind to the twin conditions i.e. there is progress in investigation and there are reasons for detaining the accused

beyond the period prescribed.

An important duty is cast on the Public Prosecutor to

prepare his own independent report to assist the Special Court to

decide whether the time period of custody of the

applicant/accused needs to be extended beyond 90 days or 180

days. The public prosecutor shall be convinced on the

submission of the Investigating Agency that there is a progress in

the investigation and for the reasons offered in the report, it could not be completed.

Here, in contrast, it can be seen that in the present

case, the report placed before the learned Magistrate is by the

Investigating Officer himself, which is in clear breach of the

mandate of law envisaged in the proviso appended to sub-section

(4) of Section 36A.

16 The applicant preferred an application for being

released on bail when the charge-sheet was not filed in 180 days

and on the defective application which could not have been

entertained. The Special Judge kept it pending though an

indefeasible right had accrued to the applicant on failure to file

the charge-sheet within 180 days. He availed of this right by

preferring an application, but the learned Court rejected it on a

flimsy ground.

17 Very recently, the Hon’ble Apex Court in case of M.

Ravindran vs. Intelligence Officer, Directorate of Revenue

Intelligence, 2021 (2) SCC 485, has once again reiterated the

concept of default bail which has been recognized as an integral

part of the right of the person to personal liberty under Article 21

of the Constitution of India. It has been held that once the

accused files an application for bail under the proviso to Section

167(2) of Cr.P.C, he is deemed to have ‘availed of’ or enforced

his right to be released on default bail, accruing after expiry of the stipulated time limit for investigation.

In the Law Report, Their Lordships of the Apex

Court has crystallized the position on the following words :

“Once the accused files an application for bail under the Proviso

to Section 167(2) he is deemed to have ‘availed of’ or enforced

his right to be released on default bail, accruing after

expiry of the stipulated time limit for investigation. Thus, if

the accused applies for bail under Section 167(2), CrPC read

with Section 36A (4), NDPS Act upon expiry of 180 days or

the extended period, as the case may be, the Court must release

him on bail forthwith without any unnecessary delay after

getting necessary information from the public prosecutor,

as mentioned supra. Such prompt action will restrict the prosecution

from frustrating the legislative mandate to release the

accused on bail in case of default by the investigative agency.

18.2 The right to be released on default bail continues to

remain enforceable if the accused has applied for such bail,

notwithstanding pendency of the bail application; or

subsequent filing of the chargesheet or a report seeking

extension of time by the prosecution before the Court; or

filing of the chargesheet during the interregnum when

challenge to the rejection of the bail application is pending

before a higher Court.

18 In the wake of the aforesaid position of law, clearly

emnating from the authoritative pronouncement of the Hon’ble

Apex court, the applicant deserve his release on bail under

Section 167(2) read with Section 36A of the Narcotic Drugs &

Psychotropic Substances Act, 1985.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

BAIL APPLICATION NO. 4215 of 2021

Shlok Rakesh Todankar  Vs  The State of Maharashtra 

CORAM: BHARATI DANGRE, J.

DATED : 6th SEPTEMBER, 2022

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Supreme Court: Under which circumstances the court should not accept Closure of evidence by public prosecutor

 Keeping in view the concept of fair trial, the obligation of the prosecution, the interest of the community and the duty of the Court, it can irrefragably be stated that the Court cannot be a silent spectator or a mute observer when it presides over a trial. It is the duty of the court, to see that neither the prosecution nor the accused play truancy with the criminal trial or corrode the sanctity of the proceeding. They cannot expropriate or hijack the community interest by conducting themselves in such a manner as a consequence of which the trial becomes a farcical one. Law does not countenance a 'mock trial'. It is a serious concern of the society. Every member of the collective has an inherent interest in such a trial. No one can be allowed to create a dent in the same. The court is duty bound to see that neither the prosecution nor the defence takes unnecessary adjournments and take the trial under their control. The court is under the legal obligation to see that the witnesses who have been cited by the prosecution are produced by it or if summons are issued, they are actually served on the witnesses. If the court is of the opinion that the material witnesses have not been examined, it should not allow the prosecution to close the evidence. There can be no doubt that the prosecution may not examine all the material witnesses but that does not necessarily mean that the prosecution can choose not to examine any witness and convey to the court that it does not intend to cite the witnesses. The Public Prosecutor who conducts the trial, has a statutory duty to perform. He cannot afford to take things in a light manner. The Court also is not expected to accept the version of the prosecution as if it is sacred. It has to apply its mind on every occasion. Non-application of mind by the trial court has the potentiality to lead to the paralysis of the conception of fair trial.

{Para 18}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 914 of 2015 

Decided On: 20.07.2015

Bablu Kumar and Ors. Vs. State of Bihar and Ors.

Hon'ble Judges/Coram:

Dipak Misra and Prafulla C. Pant, JJ.

Author: Dipak Misra, J.

Citation: (2015) 8 SCC 787,MANU/SC/0780/2015.

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What is the public prosecutor's role in hearing the application for grant of default bail to the accused?

 14.2. It must also be added and it is well settled that issuance of notice to the State on the application for default bail filed under the Proviso to Section 167(2) is only so that the Public Prosecutor can satisfy the Court that the prosecution has already obtained an order of extension of time from the Court; or that the challan has been filed in the designated Court before the expiry of the prescribed period; or that the prescribed period has actually not expired. The prosecution can accordingly urge the Court to refuse granting bail on the alleged ground of default. Such issuance of notice would avoid the possibility of the Accused obtaining default bail by deliberate or inadvertent suppression of certain facts and also guard against multiplicity of proceedings.

However, Public Prosecutors cannot be permitted to misuse the limited notice issued to them by the Court on bail applications filed Under Section 167(2) by dragging on proceedings and filing subsequent applications/reports for the purpose of 'buying extra time' and facilitating filling up of lacunae in the investigation by the investigating agency.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 699 of 2020 

Decided On: 26.10.2020

M. Ravindran  Vs. The Intelligence Officer, Directorate of Revenue Intelligence

Hon'ble Judges/Coram:

U.U. Lalit, Mohan M. Shantanagoudar and Vineet Saran, JJ.

Author: Mohan M. Shantanagoudar, J.

Citation: AIR 2020 SC 5245,MANU / SC / 0788 / 2020,

( 2021 ) 2 SCC 485. Read full Judgment here: Click here

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Can the court refuse default bail to the accused if the prosecution files a second complaint after filing the bail application by the accused?

Conclusion

17. In the present case, admittedly the Appellant-Accused had exercised his option to obtain bail by filing the application at 10:30 a.m. on the 181st day of his arrest, i.e., immediately after the court opened, on 01.02.2019. It is not in dispute that the Public Prosecutor had not filed any application seeking extension of time to investigate into the crime prior to 31.01.2019 or prior to 10:30 a.m. on 01.02.2019. The Public Prosecutor participated in the arguments on the bail application till 4:25 p.m. on the day it was filed. It was only thereafter that the additional complaint came to be lodged against the Appellant.

Therefore, applying the aforementioned principles, the Appellant-Accused was deemed to have availed of his indefeasible right to bail, the moment he filed an application for being released on bail and offered to abide by the terms and conditions of the bail order, i.e. at 10:30 a.m. on 01.02.2019. He was entitled to be released on bail notwithstanding the subsequent filing of an additional complaint.

17.1. It is clear that in the case on hand, the State/the investigating agency has, in order to defeat the indefeasible right of the Accused to be released on bail, filed an additional complaint before the concerned court subsequent to the conclusion of the arguments of the Appellant on the bail application. If such a practice is allowed, the right Under Section 167(2) would be rendered nugatory as the investigating officers could drag their heels till the time the Accused exercises his right and conveniently files an additional complaint including the name of the Accused as soon as the application for bail is taken up for disposal. Such complaint may be on flimsy grounds or motivated merely to keep the Accused detained in custody, though we refrain from commenting on the merits of the additional complaint in the present case. Irrespective of the seriousness of the offence and the reliability of the evidence available, filing additional complaints merely to circumvent the application for default bail is, in our view, an improper strategy.

Hence, in our considered opinion, the High Court was not justified in setting aside the judgment and order of the Trial Court releasing the Accused on default bail.

17.2. We also find that the High Court has wrongly entered into merits of the matter while coming to the conclusion. The reasons assigned and the conclusions arrived at by the High Court are unacceptable.

18. Therefore, in conclusion:

18.1 Once the Accused files an application for bail under the Proviso to Section 167(2) he is deemed to have 'availed of' or enforced his right to be released on default bail, accruing after expiry of the stipulated time limit for investigation. Thus, if the Accused applies for bail Under Section 167(2), Code of Criminal Procedure read with Section 36A(4), NDPS Act upon expiry of 180 days or the extended period, as the case may be, the Court must release him on bail forthwith without any unnecessary delay after getting necessary information from the public prosecutor, as mentioned supra. Such prompt action will restrict the prosecution from frustrating the legislative mandate to release the Accused on bail in case of default by the investigative agency.

18.2 The right to be released on default bail continues to remain enforceable if the Accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the chargesheet or a report seeking extension of time by the prosecution before the Court; or filing of the chargesheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court.

18.3 However, where the Accused fails to apply for default bail when the right accrues to him, and subsequently a chargesheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate would be at liberty to take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the Accused may still be released on bail under other provisions of the Code of Criminal Procedure.

18.4 Notwithstanding the order of default bail passed by the Court, by virtue of Explanation I to Section 167(2), the actual release of the Accused from custody is contingent on the directions passed by the competent Court granting bail. If the Accused fails to furnish bail and/or comply with the terms and conditions of the bail order within the time stipulated by the Court, his continued detention in custody is valid.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 699 of 2020 

Decided On: 26.10.2020

M. Ravindran  Vs. The Intelligence Officer, Directorate of Revenue Intelligence

Hon'ble Judges/Coram:

U.U. Lalit, Mohan M. Shantanagoudar and Vineet Saran, JJ.

Author: Mohan M. Shantanagoudar, J.

Citation: AIR 2020 SC 5245,MANU / SC / 0788 / 2020,

( 2021 ) 2 SCC 485

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Can the appellate court give the benefit of S 436A of CRPC to the accused when criminal appeal or revision is pending?

 Section 436A of the Code has been inserted by Act 25 of 2005. This provision has got a laudable object behind it, particularly from the point of view of granting bail. This provision draws the maximum period for which an undertrial prisoner can be detained. This period has to be reckoned with the custody of the Accused during the investigation, inquiry and trial. We have already explained that the word 'trial' will have to be given an expanded meaning particularly when an appeal or admission is pending. Thus, in a case where an appeal is pending for a longer time, to bring it Under Section 436A, the period of incarceration in all forms will have to be reckoned, and so also for the revision.

{Para 46}

IN THE SUPREME COURT OF INDIA

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

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

Hon'ble Judges/Coram:

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

Author: M.M. Sundresh, J.

Decided On: 11.07.2022

Citation: MANU/SC/0851/2022.

Read full Judgment here: Click here

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Supreme Court: The Courts should give expanded interpretation to S 436A of CRPC for expediating release of the accused on bail

 Section 436A of the Code

436A. Maximum period for which an undertrial prisoner can be detained.-- Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties:

Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties:

Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.

Explanation.--In computing the period of detention under this Section for granting bail, the period of detention passed due to delay in proceeding caused by the Accused shall be excluded.

46. Section 436A of the Code has been inserted by Act 25 of 2005. This provision has got a laudable object behind it, particularly from the point of view of granting bail. This provision draws the maximum period for which an undertrial prisoner can be detained. This period has to be reckoned with the custody of the Accused during the investigation, inquiry and trial. We have already explained that the word 'trial' will have to be given an expanded meaning particularly when an appeal or admission is pending. Thus, in a case where an appeal is pending for a longer time, to bring it Under Section 436A, the period of incarceration in all forms will have to be reckoned, and so also for the revision.

47. Under this provision, when a person has undergone detention for a period extending to one-half of the maximum period of imprisonment specified for that offense, he shall be released by the court on his personal bond with or without sureties. The word 'shall' clearly denotes the mandatory compliance of this provision. We do feel that there is not even a need for a bail application in a case of this nature particularly when the reasons for delay are not attributable against the Accused. We are also conscious of the fact that while taking a decision the public prosecutor is to be heard, and the court, if it is of the view that there is a need for continued detention longer than one-half of the said period, has to do so. However, such an exercise of power is expected to be undertaken sparingly being an exception to the general rule. Once again, we have to reiterate that 'bail is the Rule and jail is an exception' coupled with the principle governing the presumption of innocence. We have no doubt in our mind that this provision is a substantive one, facilitating liberty, being the core intendment of Article 21. The only caveat as furnished under the Explanation being the delay in the proceeding caused on account of the Accused to be excluded.

29.1.4. As a supplement to Section 436-A, but consistent with the spirit thereof, if an undertrial has completed period of custody in excess of the sentence likely to be awarded if conviction is recorded such undertrial must be released on personal bond. Such an assessment must be made by the trial courts concerned from time to time;

IN THE SUPREME COURT OF INDIA

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

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

Hon'ble Judges/Coram:

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

Author: M.M. Sundresh, J.

Decided On: 11.07.2022

Citation: MANU/SC/0851/2022.

Read full Judgment here: Click here

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Whether public prosecutor has duty to give fair idea regarding prosecution case to the trial court?

 POSITION OF LAW

15. Section 226 of the Code of Criminal Procedure corresponds to Sub-section (1) of the old Section 286 with verbal changes owing to the abolition of the jury. Section 286 of the 1898 Code reads as under:

286.(1) In a case triable by jury, when the jurors have been in chosen or, in any other case, when the Judge is ready to hear the case, the prosecutor shall open his case by reading from the Indian Penal or other law the description of the offence charged, and stating shortly by what evidence he expects to prove the guilt of the Accused.

(2) The prosecutor shall then examine his witnesses.

Section 226 of the 1973 Code reads thus:

226. Opening case for prosecution.-- When the Accused appears or is brought before the Court in pursuance of a commitment of the case Under Section 209, the prosecutor shall open his case by describing the charge brought against the Accused and stating by what evidence he proposes to prove the guilt of the Accused.

Section 226 of the Code of Criminal Procedure permits the prosecution to make the first impression regards a case, one which might be difficult to dispel. In not insisting upon its right Under Section 226 of the Code of Criminal Procedure, the prosecution would be doing itself a disfavour. If the Accused is to contend that the case against him has not been explained owing to the non-compliance with Section 226 of the Code of Criminal Procedure, the answer would be that the Section 173(2) of the Code of Criminal Procedure report in the case would give a fair idea thereof, and that the stage of framing of charges Under Section 228 of the Code of Criminal Procedure is reached after crossing the stage of Section 227 of the Code of Criminal Procedure, which affords both the prosecution and Accused a fair opportunity to put forward their rival contentions.

20. Section 226 of the Code of Criminal Procedure, over a period of time has gone, in oblivion. Our understanding of the provision of Section 226 of the Code of Criminal Procedure is that before the Court proceeds to frame the charge against the Accused, the Public Prosecutor owes a duty to give a fair idea to the Court as regards the case of the prosecution.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1041 of 2022

Decided On: 26.07.2022

Ghulam Hassan Beigh Vs. Mohammad Maqbool Magrey and Ors.

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Whether the court can permit public prosecutor to cross examine victim under POCSO Act if she turns hostile?

 In the trial, recording of evidence of prosecution witnesses commenced on 16-09-2019 on which day the victim turns hostile. On her turning hostile, the State seeks permission of the learned

Sessions Judge to cross-examine the witness. The learned

Sessions Judge having declined such cross-examination drives

the State to this Court in the subject petition.

Therefore, the State is to be permitted to cross-examine the victim. But, such cross-examination can be only in terms of Section 33 of the POSCO Act which mandates that while cross-examination questions shall be put to the Court and the Court in turn to put the same questions to the victim. The learned Sessions Judge shall take such care and caution in transmitting the questions to the victim to be in strict consonance with the provisions of the POSCO Act.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

CRIMINAL PETITION No.8167/2020

STATE OF KARNATAKA, Vs  SOMANNA, S/O DODDA SHETTY,

BEFORE

 MR. JUSTICE M. NAGAPRASANNA

DATED THIS THE 3RD DAY OF MARCH, 2022

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Whether Special court can grant extension of time for filing of chargesheet on the application of Investigating officer?

 In Saquib Abdul Hamid (supra), the Hon’ble Apex Court

dealt with the extension of the period of investigation and the

entitlement of an accused to default bail. The MCOC Act was at issue in this case.

23. We may at this stage, also on a plain reading of clause

(bb) of subsection (4) of Section 20, point out that the

Legislature has provided for seeking extension of time for

completion of investigation on a report of the public prosecutor.

The Legislature did not purposely leave it to an investigating

officer to make an application for seeking extension of time from

the court. This provision is in tune with the legislative intent to

have the investigations completed expeditiously and not to allow

an accused to be kept in continued detention during unnecessary

prolonged investigation at the whims of the police. The

Legislature expects that the investigation must be completed

with utmost promptitude but where it becomes necessary to seek

some more time for completion of the investigation, the

investigating agency must submit itself to the scrutiny of the

public prosecutor in the first instance and satisfy him about the

progress of the investigation and furnish reasons for seeking

further custody of an accused. A public prosecutor is an

important officer of the State Government and is appointed by

the State under the Code of Criminal Procedure. He is not a part

of the investigating agency. He is an independent statutory

authority. The public prosecutor is expected to independently

apply his mind to the request of the investigating agency before

submitting a report to the court for extension of time with a view

to enable the investigating agency to complete the investigation.

He is not merely a post office or a forwarding agency. A public

prosecutor may or may not agree with the reasons given by the

investigating officer for seeking extension of time and may find

that the investigation had not progressed in the proper manner

or that there has been unnecessary, deliberate or avoidable delay

in completing the investigation. In that event, he may not submit

any report to the court under clause (bb) to seek extension of

time. Thus, for seeking extension of time under clause (bb), the

public prosecutor after an independent application of his mind to

the request of the investigating agency is required to make a

report to the Designated Court indicating therein the progress of

the investigation and disclosing justification for keeping the

accused in further custody to enable the investigating agency to

complete the investigation. The public prosecutor may attach the

request of the investigating officer along with his request or

application and report, but his report, as envisaged under clause

(bb), must disclose on the face of it that he has applied his mind

and was satisfied with the progress of the investigation and

considered grant of further time to complete the investigation

necessary. The use of the expression "on the report of the public

prosecutor indicating the progress of the investigation and the

specific reasons for the detention of the accused beyond the said

period" as occurring in clause (bb) in Ss. (2) of Section 167 as

amended by Section 20(4) are important and indicative of the

legislative intent not to keep an accused in custody unreasonably

and to grant extension only on the report of the public

prosecutor. The report of the public prosecutor, therefore, is not

merely a formality but a very vital report, because the

consequence of its acceptance affects the liberty of an accused

and it must, therefore, strictly comply with the requirements as

contained in clause (bb). The request of an investigating officer

for extension of time is no substitute for the report of the public

prosecutor. Where either no report as is envisaged by clause (bb)

is filed or the report filed by the public prosecutor is not accepted  by the Designated Court, since the grant of extension of time under clause (bb) is neither a formality nor automatic, the necessary corollary would be that an accused would be entitled to seek bail and the court shall release him on bail if he furnishes bail as required by the Designated Court. It is not merely the question of form in which the request for extension under clause (bb) is made but one of substance. The contents of the report to be submitted by the public prosecutor, after proper application of his mind, are designed to assist the Designated Court to independently decide whether or not extension should be granted in a given case. Keeping in view the consequences of the grant of extension i.e. keeping an accused in further custody, the Designated Court must be satisfied for the justification, from the report of the public prosecutor, to grant extension of time to

complete the investigation. Where the Designated Court declines

to grant such an extension, the right to be released on bail on

account of the default of the prosecution becomes indefeasible

and cannot be defeated by reasons other than those

contemplated by Ss. (4) of Section 20 as discussed in the earlier

part of this judgment. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD.

CRIMINAL APPEAL NO. 502 OF 2020

Shaikh Moin Shaikh Mehmood,  Vs  State of Maharashtra,

CORAM : RAVINDRA V. GHUGE AND B. U. DEBADWAR, JJ.

DATED : 24TH SEPTEMBER, 2020

ORAL ORDER [ PER Ravindra V. Ghuge, J. ] 

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Bombay HC: Court should not grant an extension of time for investigation in NDPS Case if police fail to disclose the progress of the probe

The Application dated 06.05.2020, purported to be the report

under the proviso to sub-section (4) of Section 36 A is signed by the

complainant/Investigating Officer. The said application was submitted

to the Court by the learned APP on 08.05.2020 by merely appending

his signature at the bottom of the page, without even making an

endorsement that he had perused the grounds and that he was satisfied

about the progress of the investigation and the reasons set out for

extension of time to complete the investigation. The decision in

Surendra Pundalik Gadling( supra)is not applicable to the facts of the

case as in the present case the application does not even remotely

reflect independent application of mind by the public prosecutor. The

application dated 6.5.2020 is nothing but a transmission of the request

of an Investigating Officer for extension of time. Such request, which is

submitted without being satisfied of the progress of the investigation

and the reasons of detention, cannot be construed as a report of the

public prosecutor as envisaged by proviso to Sub-section (4) of Section

36(A) of the NDPS Act.

32. It is also pertinent to note that the reasons stated in the

application for extension of time are that the persons involved in

abetting the accused no.2 could not be summoned and their statements

could not be recorded, Chemical Analysis Report and Call Details

Report could not be obtained and related investigation could not be

completed due to lock down declared in the country in view of Covid

19 pandemic. Thus, the main reason for seeking extension is inability

to complete the investigation due to lockdown declared because of

Covid 19 pandemic.

33. The application/report dated 6.5.2020 only gives the details of

investigation carried out on 12.11.2019 viz. the arrest of the applicant

and the seizure of the contraband substances allegedly recovered from

the applicant. The report does not disclose the progress of

investigation, which is one of the requirements of report for extension,

under proviso to sub section (4) of Section 36A of NDPS Act. It is also

pertinent to note that the Applicant was arrested on 12.11.2019,

whereas the lockdown was declared on 23.03.2020. The

application/report does not disclose the progress of the investigation

conducted during this four and half months period i.e. from the date of

the arrest till the date of the lock down. The report does not reflect

steps taken for recording the statements of the witnesses and calling for

the CDR and Chemical Analysis report during this period of four and half months. Under the circumstances, the reasons stated in the

application cannot be considered as genuine. There are no justifiable

reasons for extending the time for completing the investigation. Suffice

it to say that the prayer for extension of time, which directly affects the

liberty of the applicant, cannot be granted on the basis of an

application/report which is not in conformity with the requirements of proviso to sub section (4) of Section 36A of the NDPS Act. As a necessary corollary thereof, the applicant is entitled for bail under Section 167(2) of Cr.P.C.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

LD/VC/OCR/115/2020

Nayantara Gupta Vs The State of Maharashtra

CORAM: SMT. ANUJA PRABHUDESSAI, J.

Dated : 10th AUGUST, 2020.

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Whether the public prosecutor can refrain from examining any witness if the witness refuses to give testimony for fear of his life?

We find force in the contention of Shri Uniyal that these witnesses were "won over" by the accused, in the sense that they were not prepared to give evidence in the case for fear of their lives, or otherwise. Keshri and Shanker were not concerned in or prosecuted for the murders of Pitam and Megha. They became victims of the wrath of Shanker appellant simply because they were on friendly terms with Basanta and were looking after the latter's defence when he was being tried for the murder of Megha. Naturally, therefore, Hulasi, Bansi etc. would be mortally afraid of giving evidence in court, and of being caught in this vicious chain of murders. We therefore repel the argument that Hulasi etc. were withheld with an oblique motive.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 99 of 1974

Decided On: 29.01.1975

Shanker  Vs.  State of U.P.

Hon'ble Judges/Coram:

R.S. Sarkaria and V.R. Krishna Iyer, JJ.

Citation: (1975) 3 SCC 851, AIR 1975 SC 757, MANU/SC/0207/1975

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Leading Supreme Court judgment on examination of witnesses by public prosecutor in session trial

Next plea is regarding non-examination of certain persons who were stated to be present.

12. In trials before a Court of Session the prosecution "shall be conducted by a Public Prosecutor". Section 226 of the Code of Criminal Procedure, 1973 (for short 'the Code') enjoins on him to open up his case by describing the charge brought against the accused. He has to state what evidence he proposes to adduce for proving the guilt of the accused.

If he knew at that stage itself that certain persons cited by the investigating agency as witnesses might not support the prosecution case he is at liberty to state before the Court that fact. Alternatively, he can wait further and obtain direct information about the version which any particular witness might speak in court.

If that version is not in support of the prosecution case it would be unreasonable to insist on the Public Prosecutor to examine those persons as witnesses for prosecution.

13. When, the case reaches the stage envisaged in Section 231 of the Code the Sessions Judge is obliged "to take all such evidence as may be produced in support of the prosecution". It is clear form the said section that the Public Prosecutor is expected to produce evidence "in support of the prosecution'' and not in derogation of the prosecution case. At the said stage the Public prosecutor would be in a position to take a decision as to which among the persons cited are to be examined. If there are too many witnesses on the same point the Public Prosecutor is at liberty to choose two or some among them alone so that the time of the Court can be saved from repetitious depositions on the same factual aspects.

That principle applies when there are too many witnesses cited, if they all had sustained injuries at the occurrence. The Public Prosecutor in such cases is not obliged to examine all the injured witnesses. If he is satisfied by examining any two or three of them, it is open to him to inform the Court that he does not propose to examine the remaining persons in that category.

This will help not only the prosecution in relieving itself of the strain of adducing repetitive evidence on the same point but also help the Court considerably in lessening the workload. Time has come to make every effort possible to lessen the workload, particularly these courts crammed with cases, but without impairing the cause of justice.

14. The situation in a case where the prosecution cited two categories of witnesses to the occurrence, one consisting of persons closely related to the victim and the other consisting of witnesses who have no such relation, the Public Prosecutor's duty to the Court may require him to produce, witnesses from the latter category, also subject to his discretion to limit to one or two among them. But if the Public Prosecutor got reliable information that any one among that category would not support the prosecution version he is free to state in court about that fact and skip the witness from being examined as a prosecution witness.

It is open to the defence to cite him and examine him as a defence witness.

The decision in this regard has to be taken by the Public Prosecutor in a fair manner. He can interview the witness beforehand to enable him to know well in advance the stand which that particular person would be adopting w hen examined as a witness in court.

15. A four-Judge Bench of this Court had stated the above legal position thirty five years ago in Masalti v. State of U.P. MANU/SC/0074/1964 : [1964]8SCR133 . It is contextually apposite to extract the following observation of the Bench:

"It is not unknown that where serious offences like the present are committed and a large number of accused persons are tried, attempts are made either to terrorise or win over prosecution witnesses, and if the prosecutor honestly and bona fide believes that some of his witnesses have been won over, it would be unreasonable to insist that he must tender such witnesses before the Court".

16. The said decision was followed in Bava Hajee Hamsa v. State of Kerala MANU/SC/0105/1974 : 1974CriLJ755 . In Shivaji Sahabrao Babade v. State of Maharashtra MANU/SC/0167/1973 : 1973CriLJ1783 Krishna Iyer J., speaking for a three-Judge Bench had struck a note of caution that while a Public Prosecutor has the freedom "to pick and choose' witnesses he should be fair to the Court and to the truth. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 713 and 714 of 2003

Decided On: 04.11.2003

 Banti  Vs.  State of Madhya Pradesh

Hon'ble Judges/Coram:

Doraiswamy Raju and Dr. Arijit Pasayat, JJ.

Citation: 2004 (1) SCC 414 , AIR 2004 SC 261,MANU/SC/0864/2003

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Up to what extent the Court can permit Advocate of the victim to assist the public prosecutor in Session trial?

At the same time, the realities of criminal prosecutions, as they are conducted today, cannot be ignored. There is no denying that Public Prosecutors are often overworked. In certain places, there may be a single Public Prosecutor conducting trials in over 2-3 courts. Thus, the possibility of them missing out on certain aspects of the case cannot be ignored or discounted. A victim-centric approach that allows for greater participation of the victim in the conduct of the trial can go a long way in plugging such gaps. To this extent, we agree with the submission made by the learned Senior Counsel for the Appellant that the introduction of the proviso to Section 24(8) acts as a safety valve, inasmuch as the victim's counsel can make up for any oversights or deficiencies in the prosecution case. Further, to ensure that the right of appeal accorded to a victim under the proviso to Section 372 of the Code of Criminal Procedure is not rendered meaningless due to the errors of the Public Prosecutor at the trial stage itself, we find that some significant role should be given to the victim's counsel while assisting the prosecution. However, while doing so, the balance inherent in the scheme of the Code of Criminal Procedure should not be tampered with, and the prime role accorded to the Public Prosecutor should not be diluted.

12.4. In this regard, given that the modalities of each case are different, we find that the extent of assistance and the manner of giving it would depend on the facts and circumstances of each case. Though we cannot detail and discuss all possible scenarios that may arise during a criminal prosecution, we find that a victim's counsel should ordinarily not be given the right to make oral arguments or examine and cross-examine witnesses. As stated in Section 301(2), the private party's pleader is subject to the directions of the Public Prosecutor. In our considered opinion, the same principle should apply to the victim's counsel under the proviso to Section 24(8), as it adequately ensures that the interests of the victim are represented. If the victim's counsel feels that a certain aspect has gone unaddressed in the examination of the witnesses or the arguments advanced by the Public Prosecutor, he may route any questions or points through the Public Prosecutor himself. This would not only preserve the paramount position of the Public Prosecutor under the scheme of the Code of Criminal Procedure, but also ensure that there is no inconsistency between the case advanced by the Public Prosecutor and the victim's counsel.

12.5. However, even if there is a situation where the Public Prosecutor fails to highlight some issue of importance despite it having been suggested by the victim's counsel, the victim's counsel may still not be given the unbridled mantle of making oral arguments or examining witnesses. This is because in such cases, he still has a recourse by channelling his questions or arguments through the Judge first. For instance, if the victim's counsel finds that the Public Prosecutor has not examined a witness properly and not incorporated his suggestions either, he may bring certain questions to the notice of the Court. If the Judge finds merit in them, he may take action accordingly by invoking his powers Under Section 311 of the Code of Criminal Procedure or Section 165 of the Indian Evidence Act, 1872. In this regard, we agree with the observations made by the Tripura High Court in Smt. Uma Saha v. State of Tripura (supra) that the victim's counsel has a limited right of assisting the prosecution, which may extend to suggesting questions to the Court or the prosecution, but not putting them by himself.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1727 of 2019 

Decided On: 20.11.2019

 Rekha Murarka  Vs. The State of West Bengal and Ors.

Hon'ble Judges/Coram:

Mohan M. Shantanagoudar and Deepak Gupta, JJ.

Citation: MANU/SC/1600/2019

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Supreme Court: Private Counsel Engaged By Victim To Assist Public Prosecutor Cannot Make Oral Argument/Cross Examine Witnesses

We find that a victim's counsel should ordinarily not be given the right to make oral arguments or examine and cross-examine witnesses. As stated in Section 301(2), the private party's pleader is subject to the directions of the Public Prosecutor. In our considered opinion, the same principle should apply to the victim's counsel under the proviso to Section 24(8), as it adequately ensures that the interests of the victim are represented. If the victim's counsel feels that a certain aspect has gone unaddressed in the examination of the witnesses or the arguments advanced by the Public Prosecutor, he may route any questions or points through the Public Prosecutor himself. This would not only preserve the paramount position of the Public Prosecutor under the scheme of the Code of Criminal Procedure, but also ensure that there is no inconsistency between the case advanced by the Public Prosecutor and the victim's counsel.

12.5. However, even if there is a situation where the Public Prosecutor fails to highlight some issue of importance despite it having been suggested by the victim's counsel, the victim's counsel may still not be given the unbridled mantle of making oral arguments or examining witnesses. This is because in such cases, he still has a recourse by channelling his questions or arguments through the Judge first. For instance, if the victim's counsel finds that the Public Prosecutor has not examined a witness properly and not incorporated his suggestions either, he may bring certain questions to the notice of the Court. If the Judge finds merit in them, he may take action accordingly by invoking his powers Under Section 311 of the Code of Criminal Procedure or Section 165 of the Indian Evidence Act, 1872. In this regard, we agree with the observations made by the Tripura High Court in Smt. Uma Saha v. State of Tripura (supra) that the victim's counsel has a limited right of assisting the prosecution, which may extend to suggesting questions to the Court or the prosecution, but not putting them by himself.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1727 of 2019 

Decided On: 20.11.2019

 Rekha Murarka  Vs.  The State of West Bengal and Ors.

Hon'ble Judges/Coram:

Mohan M. Shantanagoudar and Deepak Gupta, JJ.

Citation: (2020) 2 SCC474,AIR 2020 SC 100

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Whether disciplinary proceeding should be initiated against Judicial officer only on basis that he has passed wrong order?

 That is why we again repeat that one of the
responsibilities of the High Court on the administrative
side is to ensure that the independence of the District
judiciary is maintained and the High Court acts as a
guardian and protector of the District judiciary.
16. We would, however, like to make it clear that we are
in no manner indicating that if a judicial officer passes
a wrong order, then no action is to be taken. In case a
judicial officer passes orders which are against settled
legal norms but there is no allegation of any extraneous
influences leading to the passing of such orders then the
appropriate action which the High Court should take is to
record such material on the administrative side and place
it on the service record of the judicial officer
concerned. These matters can be taken into consideration
while considering career progression of the concerned
judicial officer. Once note of the wrong order is taken
and they form part of the service record these can be

taken into consideration to deny selection grade,
promotion etc., and in case there is a continuous flow of
wrong or illegal orders then the proper action would be
to compulsorily retire the judicial officer, in
accordance with the Rules. We again reiterate that
unless there are clear-cut allegations of misconduct,
extraneous influences, gratification of any kind etc.,
disciplinary proceedings should not be initiated merely
on the basis that a wrong order has been passed by the
judicial officer or merely on the ground that the
judicial order is incorrect.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8950 OF 2011

KRISHNA PRASAD VERMA Vs  STATE OF BIHAR 

Deepak Gupta, J. (oral)
Dated:September 26, 2019

Citation: 2020(2) MHLJ 296

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Study material on plea bargaining

[Chapter XXI-A

PLEA BARGAINING

265-A. Application of the chapter.—(1) This chapter shall apply in respect of an accused against whom—

(a) the report has been forwarded by the officer in charge of the police station under Section 173 alleging therein that an offence appears to have been committed by him other than an offence for which the punishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years has been provided under the law for the time being in force; or

(b) a Magistrate has taken cognizance of an offence on complaint, other than an offence for which the punishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years, has been provided under the law for the time being in force, and after examining complainant and witnesses under Section 200, issued the process under Section 204,

but does not apply where such offence affects the socio-economic condition of the country or has been committed against a woman, or a child below the age of fourteen years.

(2) For the purposes of sub-section (1), the Central Government shall, by notification, determine the offences under the law for the time being in force which shall be the offences affecting the socio-economic condition of the country.

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Whether accused is entitled to get default bail if investigating officer has sought extension of time for investigation?

There is merit in the contention of the learned senior counsel for
the appellant/State that the question is more of substance than form, an
aspect even emphasised in Hitendra Vishnu Thakur7 case, which has
been relied upon by learned counsel for both the parties. The second
document in the form of an application has been filed on the same day. It
is not as if the first document, which is an application of the IO was
withdrawn to file the second document, which purports to be the report
of the public prosecutor. It is on the analysis of the first document that
the second document has been filed, albeit both containing the
endorsement of the public prosecutor. There are averments in the second

application referring to the progress of the investigation and the rejoinder
before us elucidates that the public prosecutor had the benefit of
scrutinising these papers. There are additional and expanded grounds set
out in the second document.
38. Mr. Mukul Rohatgi, learned senior counsel appearing for the
appellant/State has rightly contended that there is a material difference in
the facts of the present case and those of Hitendra Vishnu Thakur case,
inasmuch as the application in that case was in the form of an affidavit of
the IO, whose signatures were identified by an endorsement of the public
prosecutor. It is in those circumstances it was held that mere
identification by the public prosecutor, of the deponent of the affidavit
could not justify the application to be treated as a report of the public
prosecutor. In the present case, the second document contains a clear
endorsement of the public prosecutor in support of the averments made
therein.
39. No doubt, in para 23 of Hitendra Vishnu Thakur case, this Court
laid emphasis on the importance of the scrutiny by a public prosecutor so
as to not leave the detenu in the hands of the IO alone, being the police

authority. The public prosecutor, thus, has the option to agree or disagree
with the reasons given by the IO for seeking extension of time but in the
facts of the present case, the second document in the form of an
application shows scrutiny of the first document and thereafter details
grounds and expanded reasons for the requirement of further time to
complete the investigation.
40. Undoubtedly the request of an IO for extension of time is not a
substitute for the report of the public prosecutor but since we find that
there has been, as per the comparison of the two documents, an
application of mind by the public prosecutor as well as an endorsement
by him, the infirmities in the form should not entitle the respondents to
the benefit of a default bail when in substance there has been an
application of mind. The detailed grounds certainly fall within the
category of “compelling reasons” as enunciated in Sanjay Kedia case.
41. We are, thus, not able to persuade ourselves to agree with the
conclusions of the learned single Judge of the Bombay High Court in the
impugned order and hold that the respondents would not be entitled to
the benefit of default bail and consequently the impugned order is set
aside.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.264 of 2019

THE STATE OF MAHARASHTRA Vs  SURENDRA PUNDLIK GADLING

SANJAY KISHAN KAUL, J.
Dated:February 13, 2019.

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