Probation in Sessions Cases After BNSS: Why Maharashtra Courts Must Apply the Probation of Offenders Act First

A recurring sentencing issue before criminal courts in Maharashtra is whether probation can be granted in a sessions-triable offence, particularly where the offence is punishable up to five years and involves obstruction or assault on a public servant. The correct legal position is that the court must first examine the case under Section 4 of the Probation of Offenders Act, 1958, because the special probation law continues to govern eligible cases even under the BNSS framework.

The common error is to assume that once an offence is triable by the Court of Session, probation is ruled out. That assumption is legally unsound, because the real statutory bar under Section 4 of the Probation of Offenders Act is not the forum of trial, but whether the offence is punishable with death or imprisonment for life.

Introductory note

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Whether Session Judge should grant Anticipatory bail to accused when Session triable offence is punishable with imprisonment for three years and police has issued notice to him U/S 35 of BNS?

Introduction

 When the police do not arrest an accused during investigation in a sessions-triable offence punishable up to three years, can the committal court or Sessions Court still insist on custody before bail? The answer lies in reading Section 232 BNSS through the liberty-centered lens of Satender Kumar Antil.

A man receives notice during investigation. He appears before the police, cooperates, and is never arrested. The investigation ends, the charge-sheet is filed, and yet when he appears before the committal court, he is told: since the offence is triable by the Court of Session, obtain bail from the Sessions Court first.

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When Law Meets Medical Reality: Understanding Permanent Vegetative State in India's New Criminal Code

 Introduction

The Bharatiya Nyaya Sanhita (BNS), India's new criminal code, has introduced significant reforms in addressing heinous crimes that leave victims in devastating conditions. Among these reforms, the legal recognition of "permanent vegetative state" as a consequence equivalent to death marks a watershed moment in Indian jurisprudence. Two key provisions—Section 66 and Section 124—specifically address this condition, reflecting the law's evolving understanding of human suffering and dignity.

The Legal Framework: Two Distinct Approaches

BNS Section 66: When Sexual Violence Turns Fatal

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Can the Session court take cognizance of the offence as per S 32(2) of the Drugs and Cosmetics Act even though the said case is not committed to it?

 In 'The Act of 1940', no where expressly or by necessary implication provides that either the Special Court can take cognizance without the case being committed to it by the competent Magistrate, nor any such provisions is there in 'The Act of 1940' that the Magistrate or for that matter, Chief Judicial Magistrate has no jurisdiction to take cognizance and to pass a committal order. {Para 10}

11. Section 193 of 'The Code', which deals with cognizance of offence by Court of Sessions and is relevant for the present discussions runs as under:

193. Cognizance of offences by Courts of Session.--Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code."

12. Section 193 (Supra) provides, in no uncertain terms, that a Court of Sessions will not take cognizance of an offence as a Court of original jurisdiction, unless the case has been committed to it, except otherwise expressly provided in that regard.

13. Hon'ble the Apex Court, while considering Section 14 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (as it stood prior to amendment of 2015), in the context of taking cognizance by the Special Court constituted under that Act had an occasion to consider the ambit and scope of Section 193 of 'The Code' Relevant observations made in this regard, which are apposite here and cover the controversy at hand, run as under:

"Section 14 of the Act says that "for the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for each district a Court of Sessions to be a Special Court to try the offences under this Act". So it is for trial of the offences under the Act that a particular Court of Session in each district is sought to be specified as a Special Court. Though the word "trial" is not defined either in the Code or in the Act it is clearly distinguishable from inquiry. The word "inquiry" is defined in Section 2(g) of the Code as. "every inquiry, other than trial, conducted under this Code by a Magistrate or court". So the trial is distinct from inquiry and inquiry must always be a forerunner to the trial. The Act contemplates only the trial to be conducted by the Special Court. The added reason for specifying a Court of Session as Special Court is to ensure speed for such trial. "Special Court" is defined in the Act as "a Court of Session specified as a Special Court in Section 14", [vide S. 2(1)(d)] Thus the Court of Session is specified to conduct a trial and no other court can conduct the trial of offences under the Act. Why the Parliament provided that only a Court of Session can be specified as a Special Court? Evidently the legislature wanted the Special Court to be Court of Session. Hence the particular Court of Session, even after being specified as a Special Court, would continue to be essentially a Court of Session and designation of it as a Special Court would not denude it of its character or even powers as a Court of Session. The trial in such a court can be conducted only in the manner provided in Chapter XVIII of the Code which contains a fasciculus of provisions for 'Trial before a Court of Session'."

"Section 193 of the Code has to be understood in the aforesaid backdrop. The section imposes an interdict on all Courts of Session against taking cognizance of any offence as a court of original jurisdiction. It can take cognizance only if "the case has been committed to it by a Magistrate", as provided in the Code, Two segments have been indicated in Section 193 as exceptions to the aforesaid interdict. One is, when the Code itself has provided differently in express language regarding taking of cognizance, and the second is when any other law has provided differently in express language regarding taking cognizance of offences under such law. The word "expressly" which is employed in Section 193 denoting to those exceptions is indicative of the legislative mandate that a Court of Session can depart from the interdict contained in the section only if it is provided differently in clear and unambiguous terms. In other words, unless it is positively and specifically provided differently no Court of Session can take cognizance of any offence directly, without the case being committed to it by a Magistrate."

14. Here it is noticeable that Section 5 of the Prevention of Corruption Act, 1988 specifically provides that special Judge under the Act can take cognizance of offence(s) without the accused being committed to him for trial.

15. Likewise, under the SC/ST (PA) Act, 1989 (prior to amendment by Amending Act of 2015), a case triable by Special Court constituted under Section 14 of this Act was required to be committed to the Special Court as held by the Apex Court in Gangula Ashok's case (MANU/SC/0047/2000 : AIR 2000 SC 740) (supra). After the amendment of 2015, a provision has been added in Section 14 of SC/ST (PA) Act, 1989, conferring power on the Special Court to take cognizance of the case without the same being committed to it for trial. A provision identical to one in Sec. 5 of the Prevention of Corruption Act, 1988 or Sec. 14 of the SC/ST (PA) Act, 1989 is not there in 'The Act of 1940', therefore, Special Court, constituted under this Act, which is a Sessions Court, cannot take cognizance without the accused being committed to it for trial.

16. In view of Section 193 of 'The Code' as interpreted by Hon'ble the Apex Court in Gangula Ashok's case (MANU/SC/0047/2000 : AIR 2000 SC 740) (supra), the cases (supra) relied upon by the learned counsel for the petitioner have no application in the present case. The special Court constituted under 'The Act of 1940' cannot take direct cognizance, because no enabling provision is there in 'The Act of 1940' in that regard, hence, no fault can be found with the order passed by the learned Chief Judicial Magistrate, committing the case to the special Court. Therefore, the impugned order of for that matter the order passed by the learned Chief Judicial Magistrate does not suffer from any illegality. In view of the aforesaid, this petition having no force deserves to be and is accordingly dismissed.

 IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)

M. Cri. C. No. 11940 of 2016

Decided On: 10.01.2017

 Kalptaru Medicose  Vs.  Food and Drug Administration

Hon'ble Judges/Coram:

Ved Prakash Sharma, J.

Citation: MANU/MP/0133/2017,2017(1)Drugs cases (DC)204

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Whether Magistrate must record evidence of complainant if complaint is filed by public servant in session triable offence?

Code of Criminal Procedure, 1973 - Sections 202 (2), Proviso and 465-Complaint-Enquiry by Magistrate under Section 202 (2)-Scope of proviso to Section 202 (2) when offence complained of exclusively triable by Court of Session-Duty of Magistrate to examine complainant's witnesses-Omission to do so not by itself to vitiate proceedings.

Held :

Per Thomas, J.

(1) The proviso to sub-section (2) of Section 202 of the Code of Criminal Procedure, 1973, is not merely to confer a discretion on the Magistrate, but a compelling duty on him to perform in any such cases. However, the Magistrate in such a situation is not obliged to examine witnesses who could not be produced by the complainant when asked to produce such witnesses. Of course, if the complainant requires the help of the Court to summon such witnesses, it is open to the Magistrate to issue such summons, for, there is nothing in the Code which prevents the Magistrate from issuing such summons to the witnesses.

(2) However, if the Magistrate omits to comply with the above requirement that would not, by itself, vitiate the proceedings. If no objection is taken at the earlier stage regarding such omission, the Court can consider how far such omission would have led to miscarriage of justice, when such objection is taken at a later stage. A decision on such belated objection can be taken by bearing in mind the principles adumbrated in Section 465 of the Code.

(3) When the accused have chosen not to raise objection on the premise of omission to examine witnesses of the complainant under the proviso to Section 202 (2) of the Code before process was issued by the Magistrate, it must be taken that they had no grievance that such omission had occasioned failure of justice. Even if they had taken such objection after committal of the case to the Sessions Court, there was no need to turn the switch board backwards as there is no scope for believing that such omission had occasioned failure of justice. This is because no evidence of any witness would be used in the trial court unless such witness was examined in the trial court and the accused is afforded reasonable opportunity to cross-examine him.

Per Shah, J.

(1) Inquiry under Section 202 (2) of the Code is itself discretionary one-giving option to examine or not to examine witnesses on oath. Hence, proviso to the said sub-section is required to be read accordingly though couched in mandatory term by using the word 'shall'. Normally, the procedure prescribed therein should be followed, but non-observance of the said procedure may not vitiate further proceedings in all cases. In a case where a complaint is filed, not by the public servant, and where the offence is exclusively triable by the Court of Sessions, the Magistrate should follow the proviso to sub-section (2) of Section 202 and call upon the complainant to produce all his witnesses and examine them on oath. This would be in consonance with the provision of Section 208 which, inter alia, provides for supply of copy of statements and documents to accused. This would also facilitate the Sessions Court in framing the charge or discharging the accused. In the sessions triable case, under Section 226 the prosecution has to open its case by describing the charge brought against the accused and stating by what evidence it proposes to prove the guilt of the accused. On such submission, the Sessions Court is required to consider the record of the case and the documents submitted therewith and, after hearing the submissions of the accused and prosecution in this behalf, to decide whether there is sufficient ground or not for proceeding against the accused. Upon such consideration, if the Court finds that there is no sufficient ground for proceeding against the accused, he shall be discharged as provided under Section 227. In case, where there is sufficient ground, Court is required to frame the charge as provided under Section 228. Hence, for the purpose of framing the charge also, the recording of such evidence is necessary. It also facilitates the accused to know allegation made against him as well as evidence in support thereof. However, in a case where complaint is filed by a public servant after holding inquiry and recording the statements, question of recording of such evidence may not arise. Hence, compliance of proviso by the Magistrate in all sessions triable cases is not a must and would not vitiate the further trial unless prejudice caused to the accused is established.

(2) Section 465, Cr. P.C. specifically provides that irregularity in the complaint, summons, warrant, order or other proceedings before or during trial or in any inquiry shall not be a ground for reversing order passed by the competent Court, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. Sub-section (2) further provides that in determining whether any irregularity in proceeding has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. Hence, the statute does not expressly provide for nullification of the order as a consequence of non-compliance of proviso to sub-section (2) of Section 202, but provides that unless prejudice is caused, the order is not to be set aside. This would mean that during inquiry under Section 202 when Magistrate examines the witnesses on oath, as far as possible proviso is to be complied with but the mandate is not absolute.

(3) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, the direction of investigation by the police officer is not permissible and he is required to hold inquiry by himself. During that inquiry, he may decide to examine the witnesses on oath. At that stage, proviso further gives mandatory directions that he shall call upon the complainant to produce all his witnesses and examine them on oath. The reason obviously is that in a private complaint, which is required to be committed to the Sessions Court for trial, it would safeguard the interest of the accused and he would not be taken by surprise at the time of trial and it would reveal the version of the witnesses whose list is required to be filed by complainant under Section 204 (2) before issuance of the process. The irregularity or non-compliance thereof would not vitiate the further proceeding in all cases. A person complaining of such irregularity should raise objection at the earliest stage and he should point out how prejudice is caused or is likely to be caused by not following the proviso. If he fails to raise such objection at the earliest stage, he is precluded from raising such objection later. 

IN THE SUPREME COURT OF INDIA

Crl. A. Nos. 18-19 of 2000 

Decided On: 10.01.2000

 Rosy and Ors.  Vs. State of Kerala and Ors.

Hon'ble Judges/Coram:

K.T. Thomas and M.B. Shah, JJ.

Authored By : K.T. Thomas, M.B. Shah

Citation: AIR 2000 SC 637,( 2000 ) 2 SCC 230,MANU/SC/0018/2000

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Whether Magistrate should commit cases under Drugs and Cosmetics Act after amendment of said Act effective from 10-8-2009?

  In this case, on 10.8.2009, the sample was taken by the respondent,

who is a Drug Inspector of the State and on 22.3.2005 the case was instituted against the petitioners herein. They appeared on 29.8.2007 and the amendment to Section 32 of the Drugs and Cosmetics Act, 1940 came into effect from 10.8.2009 according to which the offences under the said Act would only be tried by a Court, not inferior to that of a Court of Sessions. However, in ignorance of the said amendment, the learned Court of J.M.F.C. framed charges on 8.12.2009 for offences U/s.18(a)(i) read with Section 17 and 27 of the Drugs and Cosmetic Act, 1940. In this case, the question involved is not the retrospective application of the amendment, but the continuation of the case before the Court of learned Judicial Magistrate First Class after the amendment came into force at which point of time, even the charges were not framed by the Court of the Ld. JMFC. The framing of the charge by the Court of learned J.M.F.C. on 8.12.2009 itself was rendered illegal on account of the amendment having come into force on 10.8.2009 itself. Therefore, all the proceedings before the Ld. JMFC after 10.8.2009, on which date even the charges were not framed by the Court of learned J.M.F.C., were rendered bad in the eyes of law.

Under the circumstances, the impugned order cannot be faulted, as all proceedings from the stage of framing charges onwards had no sanction under the law. Therefore, this petition is disposed of by sustaining the impugned order of committal of the case to the Court of Sessions but as the evidence taken before the Court of learned J.M.F.C. was done much after the amendment came into force and the charges were framed after the coming into force of the amendment, all proceedings before the Court below commencing from the framing of charges are struck down and the trial will commence denovo before the learned Court of Sessions from the stage of framing charges after giving an opportunity to both the petitioners and the prosecution to address the Court on the issue of framing charges.

Madhya Pradesh High Court

M/S Jayram Pharmaceauticals Pvt. ... vs The State Of Madhya Pradesh on 20 July, 2017

                            MCRC-7419-2017
   

         The present petition has been filed invoking the jurisdiction of this

Court under Section 482 of Cr.P.C. by the petitioners being aggrieved by the

impugned order dated 17.1.2017 (Annex.A/3) passed by the learned Judicial

Magistrate First Class, Bhopal in R.T. No.2307/2005 whereby he is stated to

have erroneously committed the case to the learned Court of Sessions on the

basis of a retrospective application of the amendment to Section 32 of the

Drugs and Cosmetics Act, 1940, which was done 12 years after the institution

of the case and also after recording the evidence of all the material

prosecution witnesses who are 4 in number.

         Learned counsel for the petitioners has relied upon the judgment

passed by this Court in Dwarka Prasad Vs. State of M.P., decided on

30.3.2016 in M.Cr.C. No.11246/2014 by which this Court has held in para 24

that the trial of the case may be said to be in advanced stage where a material

witness/ witnesses have been examined on behalf of the prosecution. This

Court further held that it is not so much the number of the witnesses examined

by the prosecution, but the nature of the evidence given by such

witness/witnesses which would have to be seen. It also held that in a given

case where witnesses examined on behalf of the prosecution may not have

deposed to the essential part of the prosecution case or where such evidence

may be formal in character, the case may not be said to be at the advanced

stage of trial. Learned counsel for the petitioners has relied heavily upon this

judgment. This judgment was passed while examining the amendment in the

Cr.P.C. whereby offences U/s.467, 468 inter-alia, which were earlier triable by
 the Court of Magistrate, were made triable after the amendment by the Court

of Sessions. In the case examined in Dwarka Prasad (supra), the Court was

concerned with the stage at which the case was after the amendment came

into force. However, in the instant case, on factual aspects, there is a

difference.

         In this case, on 10.8.2009, the sample was taken by the respondent,

who is a Drug Inspector of the State and on 22.3.2005 the case was instituted against the petitioners herein. They appeared on 29.8.2007 and the amendment to Section 32 of the Drugs and Cosmetics Act, 1940 came into effect from 10.8.2009 according to which the offences under the said Act would only be tried by a Court, not inferior to that of a Court of Sessions. However, in ignorance of the said amendment, the learned Court of J.M.F.C. framed charges on 8.12.2009 for offences U/s.18(a)(i) read with Section 17 and 27 of the Drugs and Cosmetic Act, 1940. In this case, the question involved is not the retrospective application of the amendment, but the continuation of the case before the Court of learned Judicial Magistrate First Class after the amendment came into force at which point of time, even the charges were not framed by the Court of the Ld. JMFC. The framing of the charge by the Court of learned J.M.F.C. on 8.12.2009 itself was rendered illegal on account of the amendment having come into force on 10.8.2009 itself. Therefore, all the proceedings before the Ld. JMFC after 10.8.2009, on which date even the charges were not framed by the Court of learned J.M.F.C., were rendered bad in the eyes of law.

Under the circumstances, the impugned order cannot be faulted, as all proceedings from the stage of framing charges onwards had no sanction under the law. Therefore, this petition is disposed of by sustaining the impugned order of committal of the case to the Court of Sessions but as the evidence taken before the Court of learned J.M.F.C. was done much after the amendment came into force and the charges were framed after the coming into force of the amendment, all proceedings before the Court below commencing from the framing of charges are struck down and the trial will commence denovo before the learned Court of Sessions from the stage of framing charges after giving an opportunity to both the petitioners and the prosecution to address the Court on the issue of framing charges.

With these directions, the petition is disposed of. C.C. as per rules.

(ATUL SREEDHARAN) JUDGE a

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Questions and answers on law (Part 45)

 Q 1:- In sessions triable case, one of the accused is juvenile. What order is to be passed to send him before Juvenile Justice Board?

Ans:- The court should follow procedure laid down by Supreme court in the case of Rishipal Singh Solanki v. State of Uttar Pradesh.

"The following questions arise for consideration:

(i) What is the procedure to be followed when a person claims juvenility in a regular court where he got arrayed as an accused?

(ii) What is the mode of proof in the matter of juvenility and the burden is upon whom?

(iii) Once it is found that the claim of juvenility in the affirmative, what should be the procedure to be followed?

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Whether is difference between procedure and effect of inquiry of age of juvenile before trial court and Juvenile justice Board?

 I would like to refer a recent decision rendered by the Apex Court reported in [2021 KHC 6718], Rishipal Singh Solanki v. State of Uttar Pradesh. In the said case, while dealing with the claim of juvenility raised by one among the accused, the Apex Court laid down the following principles:

“Dismissing the appeal, the Court held (B.V. Nagarathna, J.):

(i) A claim of juvenility may be raised at any stage of a criminal proceeding, even after a final disposal of the case. A delay in raising the claim of juvenility cannot be a ground for rejection of such claim. It can also be raised for the first time before this Court.

(ii) An application claiming juvenility could be made either before the Court or the JJ Board.

(iia) When the issue of juvenility arises before a Court, it would be under sub-section (2) and (3) of S.9 of the JJ Act, 2015 but when a person is brought before a Committee or JJ Board, S.94 of the JJ Act, 2015 applies.

(iib) If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of S.94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of S.9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be.

(iic) When an application claiming juvenility is made under S.94 of the JJ Act, 2015 before the JJ Board when the matter regarding the alleged commission of offence is pending before a Court, then the procedure contemplated under S.94 of the JJ Act, 2015 would apply. Under the said provision if the JJ Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Board shall undertake the process of age determination by seeking evidence and the age recorded by the JJ Board to be the age of the person so brought before it shall, for the purpose of the JJ Act, 2015, be deemed to be true age of that person. Hence the degree of proof required in such a proceeding before the JJ Board, when an application is filed seeking a claim of juvenility when the trial is before the concerned Criminal Court, is higher than when an inquiry is made by a Court before which the case regarding the commission of the offence is pending (vide S.9 of the JJ Act, 2015).

(iii) That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in R.12(3)(a)(i), (ii) and (iii) of the JJ R.2007 made under the JJ Act, 2000 or sub-section (2) of S.94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised.

(iv) The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side.

(v) That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal Court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of S.94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance.

(vi) That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case.

(vii) This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile.

(viii) If two views are possible on the same evidence, the Court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences.

(ix) That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per S.35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents.

(x) Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., S.35 and other provisions.

(xi) Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in S.94(2) of the JJ Act, 2015.”{Para 7}

9. In view of the above settled law, the question of juvenility raised by the petitioner herein has to be considered by the Assistant Sessions Judge as provided under Section 9(2) and (3) of the J.J. Act. In view of the matter, the proceedings before the Assistant Sessions Judge in so far as the petitioner is concerned, is reverted back to the stage before Section 228 of the Code of Criminal Procedure and the proceedings subsequent to that stage shall stand quashed.

 In the High Court of Kerala at Ernakulam

(Before A. Badharudeen, J.)

Arjun Reghu Vs State of Kerala

Crl.M.C. No. 599 of 2021

Decided on June 6, 2022

Citation: 2022 SCC OnLine Ker 2891 : (2022) 3 KLT 895

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Why must a magistrate record evidence of the complainant and his witnesses in session triable complaint case?

 The prosecution in the Court of Session is to be opened under Section 226 by the Public Prosecutor describing the charge and stating by what evidence he proposes to prove the guilt of the accused. In a complaint case if process is issued on the opinion that there is sufficient ground for proceeding there is no other option for the Magistrate but to commit the accused to the Court of Session, If process is issued after compliance with Section 200 alone without conducting an enquiry under Section 203, the issue of process and committal may very often be on the basis of the allegations in the complaint and the sworn statement of the complainant alone. The list of witnesses filed by the complainant may not reveal the version which the witnesses are going to say in court. It may also happen that the complainant examined under Section 200 does not have direct knowledge regarding some or many of the aspects of the offence. Under Section 227 the Sessions Judge has to consider the record of the case and documents submitted therewith and he can discharge the accused if he considers that there is no sufficient ground for proceeding. In the contingencies mentioned above, perhaps, the Sessions Judge has no other alternative than to discharge the accused due to total paucity of materials." It is thus necessary that there must be sufficient materials for the Public Prosecutor to open the case and state by what evidence he proposes to prove the guilt of the accused. Otherwise the complainant will be exposed to the risk of the accused being easily discharged under Section 227 even in a genuine case for want of sufficient materials in the absence of an enquiry under Section 202.

23. The accused also will be at a disadvantage. In a police charge case there is the assurance of investigation by an official agency which may filter the materials. Under Section 207, in such a case the Magistrate, before committal, has to furnish the records mentioned therein to the accused. The object is to facilitate the accused to prepare his defence on the materials by which the prosecution seeks to prove the case against him. In a complaint case, in the absence of investigation, documents mentioned in Section 207 cannot be made available to the accused because there would be no such documents. Section 208 which provides for supply of documents in a complaint case will have to be viewed in this background. The documents to be supplied under Section 208(1) are statements of witnesses recorded under Section 200 or Section 202 of all the persons examined by the Magistrate. In Sulaiman's case 1978 Ker LT 424 the Division Bench considered Sections 200, 202 and 208(1) and held:

"The provision in Section 208(1) regarding the furnishing of copies of statements is one made not cumulatively but alternatively. It says copies to be furnished should be of statements under Section 200 or Section 202. Use of the word 'or' there, is important. It is used there disjunctively and not conjunctively. When so read it produces an intelligible result. It then means that the accused should be furnished with, copies of the statements of persons recorded under Section 200 or Section 202 as the case may be. Section 208(1) does not contemplate an accused being furnished with copies of statements recorded under S, 202 when the commitment is made based on the statements taken under Section 200 alone."

24. Considering the object and purpose of the amended provision in Section 202, we do not think that interpretation placed by the Division Bench in Sulaiman's case (1978 KLT 424) is correct. The word "or" cannot be given that restricted meaning, as we have already pointed out. The object of the provisions in Section 202 when taken along with Sections 208 and 209 is to place the accused in a complaint case in the same advantageous position as the accused in a police charge case.

25. In a complaint case the enquiry under Section 202 by the Magistrate into the truth of the complaint is made mandatory and in a way it is intended to take the place of investigation by the police. This safeguard must be to take the place of the preliminary enquiry proceedings provided in the old Code. On the strength of the aforesaid reasonings, we find considerable force in the contention of the counsel for the petitioners that Sub-section (2) together with the proviso must be read as a proviso to Section 202(i). When it is so read, the objects underlying the scheme of Chapter XV can be better served.

26. As a result of the foregoing discussion we are forced to conclude that the legislature contemplated two types of enquiries under Section 202 and in the mandatory enquiry under Section 202 in a complaint case the Magistrate himself will have to conduct the enquiry and he will have to call upon the complainant to produce all his witnesses and examine them on oath.

27. Our conclusion is, which we say with respect, that the decisions in Kochu Mohammed v. State of Kerala MANU/KE/0138/1977, P. Section Sulaiman v. Eachara Warrier 1978 Ker LT 424 and Sidhan v. State of Kerala MANU/KE/0135/1985 have not laid down the law in this respect correctly.

IN THE HIGH COURT OF KERALA

FULL BENCH

Crl. M.C. Nos. 974 of 1984 and 17 of 1985

Decided On: 20.03.1987

 Moideenkutty Haji  Vs Kunhikoya and Ors.

Hon'ble Judges/Coram:

S. Padmanabhan, K.T. Thomas and K.G. Balakrishnan, JJ.

 Citations: AIR 1987 Ker 184,MANU/KE/0045/1987

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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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Whether magistrate can commit session triable case in the absence of accused?

Counsel submits that for the purpose of committal, the

presence of the accused is not necessary in the light of the

decision reported in Vikraman v. State of Kerala [ 1986 KLT

1372]. Of course, in exceptional cases, the presence of the

accused is not necessary for committal but, it cannot be taken as

a general rule. As per the normal procedure, committal can be

done in the presence of the accused and the committal court has

to comply with the directions contained in Section 209 of the

Cr.P.C before the committal. Of course, in exceptional cases, in

the absence of the accused the case can be committed. 

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.M.C.No. 1883 of 2008

Abraham Willy vs State Of Kerala on 13 May, 2008

PRESENT :

 MR. JUSTICE V.K.MOHANAN

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Guidelines of Supreme Court for fair disposal of session trial of serious nature

 Before we part, we must lay down certain norms so that the infirmities that we have noticed in the present matter are not repeated:

i) In all cases where there is a possibility of life sentence or death sentence, learned Advocates who have put in minimum of 10 years practice at the Bar alone be considered to be appointed as Amicus Curiae or through legal services to represent an Accused.

ii) In all matters dealt with by the High Court concerning confirmation of death sentence, Senior Advocates of the Court must first be considered to be appointed as Amicus Curiae.

iii) Whenever any learned Counsel is appointed as Amicus Curiae, some reasonable time may be provided to enable the counsel to prepare the matter. There cannot be any hard and fast Rule in that behalf. However, a minimum of seven days' time may normally be considered to be appropriate and adequate.

iv) Any learned Counsel, who is appointed as Amicus Curiae on behalf of the Accused must normally be granted to have meetings and discussion with the concerned Accused. Such interactions may prove to be helpful as was noticed in Imtiyaz Ramzan Khan MANU/SC/0851/2018 : (2018) 9 SCC 160.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 62-63 of 2014

Decided On: 18.12.2019

 Anokhilal  Vs.  State of Madhya Pradesh

Hon'ble Judges/Coram:

U.U. Lalit, Indu Malhotra and Krishna Murari, JJ.

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Whether session judge can remand accused for more than fifteen days?

 By these Petitions, the Petitioners seek their release by invoking the writ of Habeas corpus on the ground that their judicial custody was authorized beyond a period of 15 days by the designated Court, which is contrary to the mandate of section 309(2) of Cr.P.C., the same is violative of Article 21 of the Constitution of India.

We have given our thoughtful consideration to the points urged by both sides, and we are of the considered view that writ of Habeas Corpus is not maintainable in the facts of the present case.

12. To consider the points raised by the learned counsel for the Petitioners, it is necessary to refer the relevant provisions of Cr.P.C. Section 309(2) of Cr.P.C. reads as under:

If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:

Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time..............

13. On plain reading of Section 309(2) of Cr.P.C., it is clear that the Court after taking cognizance of an offence, or at the time of commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, after recording reasons, on such terms as it thinks fit, and for such time as it considers reasonable and it may accordingly issue warrant remanding the accused in custody. In our considered opinion, the restrictions imposed on the Magistrate by this proviso are not applicable to the Court of Sessions.

16. If we apply the above settled principles of interpretation to section 309(2) of Cr.P.C., on plain reading of the said provision, it is clear that legislature did not intend to impose any restriction on the power of the Sessions/Special/Designated Court to remand the accused in further judicial custody for a particular period. Of course, this can be done only after cognizance is taken by the Sessions/Special/Designated Court and when the matter is to be adjourned, reasons for the same have to be recorded.

17. The proviso to section 309(2) of Cr.P.C. however carves out the exception to the general provision thereby imposing restriction that no Magistrate shall remand the accused persons to custody under section 309(2) of Cr.P.C. for a term exceeding 15 days at a time. Thus, on plain reading of section 309(2) of Cr.P.C. and its proviso, we are of the considered view that the said provision is clear and unambiguous and the distinction enshrined in provision cannot be read in the main provision of section 309(2) of Cr.P.C. to put limitation on the power of the trial Court while exercising the powers under section 309(2) of Cr.P.C.

18. In the light of above discussion, we are unable to accept the proposition of the learned counsel for the Petitioner that the designated Court could not have authority to remand of the Petitioner for a period exceeding 15 days. According to us, no such restriction can be read in section 309(2) of Cr.P.C.

20. The designated Court upon filing of the charge-sheet and after taking cognizance, deals with the matter in the capacity of the designated Court. As we have already observed in the foregoing paras, the Sessions Court/Special Court and in the present case the designated Court, does not have any restrictions on extending the remand beyond period of 15 days which restriction is only applicable to the Magistrates in terms of the proviso to section 309(2) of Cr.P.C. Hence, we do not agree with this proposition advanced by the learned counsel for the Petitioners.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 2639 and 2640 of 2019

Decided On: 18.12.2019

Harshad Dinanath Bari Vs.  The State of Maharashtra

Hon'ble Judges/Coram:

S.S. Shinde and N.B. Suryawanshi, JJ.

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Procedure to followed by court in Criminal Trial

http://mja.gov.in/Site/Upload/GR/%20I%20Summ%20of%20Cri.pdf

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Whether Independent Prosecution By De Facto Complainant is Permissible In Sessions Case?

Learned counsel appearing for both the parties in
the matter submit that the impugned order cannot be
sustained in view of the scheme provided in the proviso to
Section 24(8) of the Cr.PC and in light of the decision
of this Court in Shiv Kumar v. Hukam Chand & Anr. [(1999)
7 SCC 467] and Dhariwal Industries Ltd. vs. Kishore
Wadhwani & Ors. [(2016) 10 SCC 378].
The impugned judgment is accordingly set aside in
light of the aforementioned decisions.

 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).2240/2018

THE HIGH COURT OF JUDICATURE OF
HYDERABAD FOR THE STATE OF TELANGANA
AND THE STATE OF ANDHRA PRADESH PETITIONER(S)
 VERSUS
MAHABUNISA BEGUM & ORS. RESPONDENT(S)
Date : 14-05-2018 This petition was called on for hearing today.
CORAM :
 HON'BLE MR. JUSTICE J. CHELAMESWAR
 HON'BLE MR. JUSTICE SANJAY KISHAN KAUL

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What is duty of session Judge before taking steps to destroy the 'C' files and Muddemals?

Henceforth before taking steps to destroy
the   'C'   files   and  Muddemals,   in   any   case   the
concerned Sessions Court shall ascertain from the

registry   of   the   High   Court   or   through   Case
Management   Information   System   [CMIS]   about
pendency of appeals.

     IN  THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.479 OF 2003

THE STATE OF MAHARASHTRA 
V
ABDUL QAYYUM S/O. SK.HASSAN  

              CORAM:   S.S. SHINDE AND
                       A.M.DHAVALE, JJ.
              DATE :   06.01.2018

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Whether session court can try magistrate triable case if it is counter case to session triable case?

Thus, it has become abundantly clear that by series of 
judicial pronouncement as detailed above,
availed by the Court of Magistrate to co it has conclusively been
held that trial of case and counter-case irrespective of its nature is to
be conducted by the same Court and further, even the cases having
triable by the Court of Magistrate could be fairly tried by the Court of
Sessions in terms of power being entertained by the Court of Sessions
according to Section 26 of the Criminal Procedure Code and for that,
irrespective of nature of evidence, Section 323 of the Cr.P.C. could bemmit the case for that
purpose, which could not be questioned over its proprietary much less
with regard to absence of sufficient materials. That being so, the
learned lower Court rightly committed the case to the Court of
Sessions. Because of the fact that even the Magisterial trial is to be
proceeded with by the Court of Sessions on account thereof, there is
no question of applicability of Section 228(1)(a) of the Cr.P.C.

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.24629 of 2016

Sanjay Kumar, V  The State of Bihar


CORAM:  MR. JUSTICE ADITYA KUMAR TRIVEDI

Date: 19-08-2016
Citation: 2016 CRLJ 4540

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Whether magistrate can commit counter case to session court even though it is not triable by session court?

To sum up the legal issues involved in the case:-
        (i) No Court of Sessions shall take cognizance of any offence unless
the case has been committed to it by the jurisdictional Magistrate.
        (ii) The Court of Sessions has no power to direct a Magistrate to
commit any case to his file nor can a Court of Sessions withdraw a case from
a Magistrate to his file.
        (iii) If any of the offences in a given case is exclusively triable by
a Court of Sessions then, the legal duty of the Magistrate is to commit the
case to the Court of Sessions for trial as provided inSection 209 of Cr.P.C.
        (iv) In cross cases, where one of the cases involves offences
exclusively triable by a Court of Sessions and in the other case none of the
offence is exclusively triable by a Court of Sessions, then, as provided
in Section 323 of Cr.P.C. the jurisdictional Magistrate should commit both
the cases for trial to the Court of Sessions.
        (v) On such committal of cross cases arising out of the same
occurrence, the Sessions Court shall scrupulously follow the procedure laid
down by the Hon'ble Supreme Court in Nathi Lal v. State of U.P., 1990 Supp.
SCC 145. 
        (vi) In any other case involving offences which are not exclusively
triable by a Court of Sessions and if it appears to the jurisdictional
Magistrate that for any of the grounds enumerated underSection 407 (1)
of Cr.P.C. that the case needs to be tried by a Court of Sessions, the
learned Magistrate shall submit a report to the High Court and on such report
the High Court may order for committal of such case to the Court of Sessions
for trial and thereupon on committal, the Sessions Court shall try the same
as per Chapter XVIII of the Code of Criminal Procedure.
        (vii) In any event, the trial court shall not record common evidence or
substitute the evidence recorded in one case as evidence in the other case
and shall not consider the evidence recorded in one case in the other case.
        (viii) In no case, the trial court shall deliver a common judgement in
two or more cases [vide Nathi Lal's case cited supra].
        (ix) In respect of the cases where trial has not already commenced
before the Court of Sessions without the case being committed, the accused
shall be at liberty to raise objection at the earliest opportunity or else,
the court shall follow the dictum laid down in State of Madhya Pradesh v.
Bhooraji and others, 2001 Cri.L.J. 4228 (1).
     (x) In respect of cross cases, for each case there has to be a separate
public prosecutor to conduct the prosecution.
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.01.2015
CORAM
 MR.JUSTICE A.SELVAM
and
 MR.JUSTICE T.MATHIVANAN

CRIMINAL APPEAL(MD)Nos.16 OF 2012
and 87 of 2012


R.Velladurai Vs.State 
Citation:2016 CRLJ3985 Madras

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Procedure to followed by investigating officer and court in counter cases

From the above Judgments, the law now remains well settled that it
is not an illegality to file final report in both the case  and the counter
case. What is to be tested is only the question of prejudice for the accused.

        19. In view of the above well settled position of law in the instant
case at no stretch of imagination it could be held that filing of final
report in both the instant cases would amount to illegality. We hold that the
investigating officer, who was unable to find as to who was the aggressor,
was right in placing all the materials before the Trial Court by way of two
final reports and therefore, it was for the trial court to appreciate the
evidence let in both the cases and to punish the guilty.

        20. Now, we have to examine the proper procedure to be followed while
conducting the trial of both the cases. In this regard, we may also refer to
a judgement of the Hon'ble Supreme Court in Nathi Lal v. State of UP, 1990
(Supp) SCC 145 wherein the Hon'ble Supreme Court has in para 2 has held as 
follows:-       
        2.We think that the fair procedure to adopt in a matter like the
present where there are cross cases, is to direct that the same learned Judge
must try both the cross case one after the other. After the recording of
evidence in one case is completed, he must hear the arguments but he must 
reserve the judgment. Thereafter he must proceed to hear the cross case and
after recording all the evidence he must hear the arguments but reserve the
judgment is that case. The same learned Judge must thereafter dispose of the
matters by two separate judgments. In deciding each of the case, he can rely
only on the evidence recorded in that particular case. The evidence recorded
in the cross case cannot be looked into. Nor can the judge be influenced by
whatever is argued in the cross case. Each case must be decided on the basis
of the evidence which has been placed on record in the particular case
without being influenced in any manner by the evidence or arguments urged in
the cross case. But both the judgments must be pronounced by the same learned  
Judge one after the other.?

        21. One of us (JUSTICE S.NAGAMUTHU), while sitting single in Ganesan   
and others v. State  and another, 2011 (5) CTC 747 had occasion to  consider
the similar issue wherein the legal issues have been summed up as follows:-

        ?58. To sum up the legal issues involved in the case:-
        (i) No Court of Sessions shall take cognizance of any offence unless
the case has been committed to it by the jurisdictional Magistrate.
        (ii) The Court of Sessions has no power to direct a Magistrate to
commit any case to his file nor can a Court of Sessions withdraw a case from
a Magistrate to his file.
        (iii) If any of the offences in a given case is exclusively triable by
a Court of Sessions then, the legal duty of the Magistrate is to commit the
case to the Court of Sessions for trial as provided inSection 209 of Cr.P.C.
        (iv) In cross cases, where one of the cases involves offences
exclusively triable by a Court of Sessions and in the other case none of the
offence is exclusively triable by a Court of Sessions, then, as provided
in Section 323 of Cr.P.C. the jurisdictional Magistrate should commit both
the cases for trial to the Court of Sessions.
        (v) On such committal of cross cases arising out of the same
occurrence, the Sessions Court shall scrupulously follow the procedure laid
down by the Hon'ble Supreme Court in Nathi Lal v. State of U.P., 1990 Supp.
SCC 145. 
        (vi) In any other case involving offences which are not exclusively
triable by a Court of Sessions and if it appears to the jurisdictional
Magistrate that for any of the grounds enumerated underSection 407 (1)
of Cr.P.C. that the case needs to be tried by a Court of Sessions, the
learned Magistrate shall submit a report to the High Court and on such report
the High Court may order for committal of such case to the Court of Sessions
for trial and thereupon on committal, the Sessions Court shall try the same
as per Chapter XVIII of the Code of Criminal Procedure.
        (vii) In any event, the trial court shall not record common evidence or
substitute the evidence recorded in one case as evidence in the other case
and shall not consider the evidence recorded in one case in the other case.
        (viii) In no case, the trial court shall deliver a common judgement in
two or more cases [vide Nathi Lal's case cited supra].
        (ix) In respect of the cases where trial has not already commenced
before the Court of Sessions without the case being committed, the accused
shall be at liberty to raise objection at the earliest opportunity or else,
the court shall follow the dictum laid down in State of Madhya Pradesh v.
Bhooraji and others, 2001 Cri.L.J. 4228 (1).
     (x) In respect of cross cases, for each case there has to be a separate 
public prosecutor to conduct the prosecution.?
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.01.2015
CORAM
 MR.JUSTICE A.SELVAM
and
 MR.JUSTICE T.MATHIVANAN

CRIMINAL APPEAL(MD)Nos.16 OF 2012
and 87 of 2012


R.Velladurai Vs.State 
Citation:2016 CRLJ3985 Madras

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