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Criminal proceeding or civil proceeding which will prevail over

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					Criminal proceeding or civil proceeding which will prevail over

  Supreme Court1 has analysed and discussed so many case laws and current
legal position since the Independence regarding the legal position and fiction
whether the civil proceedings or decisions will be binding over the Criminal
proceedings? But the answer is in negative, because “Principle of law is such
that civil court does not have any bearing so far as Criminal Case is concerned
and vice – versa. Standard of proof is different in Civil & Criminal cases. In the
above case, the judges discussed about the Karamchang case were the first
direct precedent of the Supreme Authority regarding the civil case bearing over
Criminal case and as follows:

  12...... In M/S. Karamchand Ganga Prashad &other V. Unoin of India AIR
1971 SC 1244 “It is well established principle of law that the decisions of the
civil courts are binding on the criminal courts. The converse is not true”.

 The above case is “per incurium” in Syed Aksari Hadi Ali Augustine Iman &
another V. State (Delhi Admn) & anr (2009)5 SCC 528, this court considered
all the earlier judgments on the issue and held that while deciding the case in
Karamchand(supre) this court failed to take note of the Constitution Bench
Judgment in M.S.Sherif V. The State of Madras & other AIR 1954 SC 397.
“We are of the opinion that the Criminal matters should be given precedence
and therefore, it remains ‘perincurium’ and does not lay down the correct law”.
In P. Swaroopa Rani v. M. Hari Narayana @ Hari Babu [AIR 2008 SC 1884:
(2008) 5 SCC 765], it was held that “-- it is well-settled that in a given
case, civil proceedings and criminal proceedings can proceed simultaneously.
Whether civil proceedings or criminal proceedings shall be stayed depends
upon the fact and circumstances of each case."In Criminal appeal no. 940 of
2009 (Devendra v. state of UP) decided on 6/5/9 the apex court held that:

“There cannot, however, be any doubt or dispute whatsoever that in a given
case a civil suit as also a criminal proceeding would be maintainable. They can
run simultaneously. Result in one proceeding would not be binding on the
court determining the issue before it in another proceeding.”




1
    III (2010) CCR 442 (SC)
QUASHING:

 It is also well settled that in a given case, civil as well as criminal proceedings
may very well proceed simultaneously. Pendency of civil proceedings cannot be
ground for quashing the criminal proceedings2.

                                           OBJECTIONS

AIR 2001 SC 1158 Bipin Shantilal Panchal Vs. State of Gujarat & another.
[K.T.Thomas; R.P.Sethi; B.N.Agarwal ; J.J]

As per Mr. Justice. K.T. Thomas:

  It is an archaic practice that during the evidence collecting stage, whenever
 any objection is raised regarding admissibility of any material evidence the
court does not proceed further without passing order on such objection.

  But the fallout of the above practice is this: suppose the trial court, in a case,
upholds a particular objection and excludes the material from being admitted
in evidence and then proceeds with the trial and disposes of the case finally. If
the appellate or revision court, when the same question is re-canvassed, could
take a different view on the admissibility of that material, in such cases the
appellate court would deprived of the benefit of that evidence, because that was
not put on record by the trial court. In such a situation the higher court may
have to send the case back to the trial court for recording that evidence and
then to dispose of the case a fresh. Why should the trial prolong like that
unnecessarily on account of practices created by ourselves. Such practices,
when realised through the course of long period to be hindrances when impede
steady and swift progress of trial proceedings, must be recast or re-moulded to
give way for better substitutes which would help acceleration of trial
proceedings.

 When so recast, the practise which can be a better substitute is this: whenever
an objection is raised during evidence taking stage regarding the admissibility
of any material or item of oral evidence the trial court can make a note of such
objection and mark the objected document tentatively as an exhibit in the case
(or record the objected part of the oral evidence) subject to such objections to
be decided at the last stage in the final judgment. If the court finds at the final
stage that the objection so raised is sustainable the Judge or Magistrate can
keep such evidence excluded from consideration.

Ratio Decidendi:

2
    2011-1-L.W (Crl) 252 [G.M.Akbar Ali]
  In our view there is no illegality in adopting such a course. However, we make
it clear that if the objection relates to deficiency of stamp duty of a document
the court has to decide the objection before proceeding further. For all other
objections the procedure suggested above can be followed.

    Exception: if the objection relates to deficiency of stamp duty of a document
           the court has to decide the objection before proceeding further.

                                                    Hostile witness

There is no word ‘hostile witness’ in the Indian Evidence Act or any other Act in
India.

 2010 (10) SCALE; paramjit singh @ parama vs. State of Uttar [P.Sathasivam
& Dr.B.S.Chauhan J.J]

  In (1997)6 SCC 514,
   “The fact that the witness was declared hostile at the instance of the Public
Prosecutor and he was allowed to cress-examine the witness furnishes no
justification for rejecting en bloc the evidence of the witness. However, the
court has to be very careful, as prima facie, a witness who makes different
statements at different times, has no regard for the truth. His evidence has to
be read and considered as a whole with a view to find out whether any weight
should be attached to it. The court should be slow to act on the testimony of
such a witness; normally, it should look for corroboration to his testimony
(State of Rajasthan vs. Bhawani & others. (2003) 7 SCC 291). RadhaMohan
singh vs.State of U.P. (2006) 2 SCC 450; In Mahesh vs. State of Maharashtra
(2008) 13 SCC 271.

Supreme court in AIR 1976 SC [Sat Paul vs. Delhi Administration] , ‘it is
preferable to avoid the use of such expression , such as ‘declared hostile’,
‘declared unfavourable’


                                                     Mercy killing

 A fundamental right - Discussion:
Suicide which has not been declared by the Indian Penal Code because once a
person successfully commits suicide, that person is no longer alive to be
prosecuted and crime abates with him. However, an attempt to commit suicide
and abetment to commit suicide are punishable under the Indian Penal Code 3.




3
    P.S.A. Pillai’s – Criminal Law – page no. 840
    Every person is entitled to a quality of life consistent with his human
personality. The right to live with human dignity is the fundamental right of
every Indian citizen4. Now the Article 21 goes like the below
 “Article.21 Protection of life and personal liberty: - No person shall be deprived
of his life of personal liberty except according to procedure established by law”.

  The impact of this article is All the persons / people in this Country should
life with protection which is given by the law, a peaceful life and should not be
taken out his personal liberty without any specific law which says so. In short
version, every person has his life to live peaceful and protective manner.

 The question now is whether this section empowered every citizen of this
Country a right to die or not? In P.Ratnam5 it was held that S.309 (attempt to
commit suicide) is violates the above Articie.21 of the Indian Constitution and
‘right to live’ includes ‘right to die’. The Bench of two Judges stated the reason
that “S.309 I.P.C deserves to be effaced from the statute book to humanise our
penal laws. It is a cruel and irrational provision, and it may result in punishing
a person again (doubly) who has suffered agony and would be undergoing
ignominy because of his failure to commit suicide.

  The Supreme Court Judges came to the above decision because there was an
advancement of argument by the petitioners that “fundamental rights have
their positive as well as negative aspects. For example, freedom of speech and
expression includes freedom not to speak. Similarly, the freedom of association
and movement includes freedom not to join any association or move anywhere.
So too, freedom of business includes freedom not to do business. It was
therefore, stated that logically it must follow that the right to live will include
right not to live i.e... Right to die or to terminate one’s life”.

  But in Gian Kaur vs. State of Punjab6 overruled the above P.Ratham’s case
and held that “the right to life u/A – 21 of the Constitution does not includes
the ‘right to die’, and also approved the decision of the House of Lords in
Airedale’s case and observed that euthanasia could be made lawful only by
legislation” and continues that “the right to life including the right to live with
human dignity would mean the existence of such a right upto the end of
natural life. This includes the right to a dignified life upto the point of death
including a dignified procedure of death. In other words, this may include the
right of a dying man to also die with dignity when his life is ebbing out. But the
right to die with dignity at the end of life is not to be confused or equated with
the right to die an unnatural death curtailing the natural span of life” and
which is very logical.


4
  Vikram Deo Singh vs. State of Bihar 1998 (supp) SCC 734
5
  (1994) 3 SCC 394
6
  1996 (2) SCC 648
 In Aruna Ramachandra Shanbaug vs. Union of India7 it was held that “in
India abetment of suicide (S.306 I.P.C) and attempt to suicide (S.309 I.P.C) are
both criminal offences. We are of the opinion8 that although S.309 I.P.C has
been held to be constitutionally valid in Gian Kaur’s Case, the time has come
when it should be deleted by the parliament as it has become anachronistic. A
person attempts suicide in a depression and hence he needs help, rather that
punishment. We therefore recommend to parliament to consider the feasibility
of deleting S.309 I.P.C.

 Now the question of withdrawal of life support to incompetent persons [Mercy
killing]. It was discussed intense in the above Aruna Ramachandra Shanbaug
Judgment and held that Grant approval for withdrawal of life support to such
an incompetent person [Mercy Killing] can be given only by the State (Doctrine
of Parens Patriae) and State includes the High Court (by way of Art-226) not
the Supreme Court (cannot be given by way of Art-32).

EUTHANASIA:
Euthanasia is divided into two parts 1. Active Euthanasia and 2. Passive
Euthanasia.

ACTIVE EUTHANASIA:
  Active Euthanasia is taking specific steps to cause the patient’s death, such
as injecting the patient with some lethal substances (eg. Sodium pentothal
which causes a person deep sleep in a few second, and the person
instantaneously and painlessly dies in this deep sleep). This is a crime all over
world except where permitted by legislation. In India active euthanasia is illegal
and a crime u/s. 302 or atleast u/s. 304 I.P.C. physical assisted suicide is a
crime u/s. 306 I.P.C.

PASSIVE EUTHANASIA:
 Passive euthanasia is usually defined as withdrawing medical treatment with
a deliberate intention of causing the patent’s death [ex. If a patient requires
kidney dialysis to survive, not giving dialysis although the machine is available
Passive euthanasia).

 It is ideal to discuss now the explanation of ‘act’ in Actus Reus section of this
book “The perspective of S.32 I.P.C (definition of the term ‘act’) is clear, so also
S.33 I.P.C. (act means also ‘omission’ and ‘series of omission’). Example, a
death of a newly born child, may be caused by a deliberate refusal to feed the
baby. Here the unlawful homicide –an actus reus- is caused not by negative act
(omission to feed the baby). Thus, where a person neglected to provide his child
with proper sentence and the child died, it was held to be murder”.


7
    2011 (3) SCALE 298[Markanteya Katju & Gyan Sudha Mishra]
8
    Supra para. 100
                                        ADMISSION CONFESSION

Pakkala Narayana Swami Vs King Emperor [AIR 1939 PC 47]:

 “A confession must either admit in terms the offence, or at any rate substantially all
the facts which constitutes the offence. An admission of a gravely incriminating fact,
even a conclusively incriminating fact is not of itself a confession. The definition is not
contained in the Evidence Act, 1872, and in that Act it could not be consistent with
the natural use of language to construe confession as a statement by an accused
‘suggesting the inference that he committed’ the crime.

  Also take the above view in Palvider Kaur Vs. State of Punjab 1953 SCR 94 at P –
104; AIR 1952 SC 354 at P – 357; Om Prakash Vs. State of U.P. AIR 1960 SC 409.



1997 SCC (cri) 444, K.I.Pavunny V. Asst. Collector [K.Ramaswamy, S.Saghir
Ahmad & G.B.Pattanaik J.J]

 Confession statement – scope – retracted confession – when can be sole basis of
conviction – corroboration of – nature and extent of by independent evidence –
explained.

CASE LAWS:
Pakkala Narayana Swami Vs King Emperor [AIR 1939 PC 47]
State vs. Navjot sandhu (2005) 11 SCC 600
2010 (2) L.W (crl) 1216

                                            Reasonable doubt

 Criminal Charges must be brought home and prove beyond all reasonable
doubt. While civil case may be proved by mere preponderance of evidence, in
criminal cases the prosecution must prove the charge beyond reasonable
doubt. It is true even today, as much as it was before. Reasonable doubt is
simply that degree of doubt which would permit a reasonable and just
man to come to a conclusion9.

                          POLICE CONFESSION INADMISSIBLE WHY?

(2011) 1 SCC (Crl) 855; (2011) 3 SCC 377 – Anup Bhuyan

Unfortunately, the Police in our country are not trained in Scientific
Investigation (as are the police in western countries) nor are they provided the
technical equipments for scientific investigation, hence to obtain a conviction
they often rely on the easy shortcut of procuring a confession under torture.

9
    1990 SCC (CRI) 151; (1990) 1 SCC 445.
 Torture is such a terrible thing that when a person is under torture he will
confess to almost any crime. Even Joan of Arc confessed to being a witch under
torture. Confession is a very weak kind of evidence as is well known, the
widespread and rampant practice in the police in India is to use third-degree
methods for extracting confessions from the alleged accused. Hence, the courts
have to be cautious is accepting confessions made to the police by the alleged
accused. Hence, where the prosecution case mainly rests on the confessional
statement made to the police by the alleged accused, in the absence of
corroborative material, the courts must be hesitant before they accept such
extra-judicial confessional statements.

 Confession to a police officer is inadmissible vide S.25 Indian Evidence Act,
but it is admissible in TADA cases vide S.15 of the TADA 1987.

                                  IDENTIFICATION PARADE

1993 SCC (crl) 212; 1993 supp (1) SCC 403
 Chaman V. State of U.P.
 S.9 I.E. Act – Identification Parade – paper make up – accused – moles, cuts &
scars on face and body of appellant covered with pieces of paper – ten
undertrial with similar paper coverings mixed with appellant – not admissible.

Test identification 2010 Cr.L.J 3910 (SC) Siddanki Ram reddy vs. State of
A.P.

  In AIR 201 SC 1188; was held that the purpose of test identification is to
have corroboration to the evidence of the eye witness in the form of earlier
identification and that the substantive evidence of a witness is the evidence in
the court and if that evidence is found to be reliable then absence of
corroboration by test identification would not be in any way material. In
A.Subair vs. State of Kerala (2009) 6 SCC 587; when, the evidence produced
by the prosecution has neither quality nor credibility, it would be unsafe to rest
conviction upon such evidence and the judgment of the courts below will have
to interfered with.


                                       TO PROVE DRUNKENNESS

 Blood or urine test is not a must for proving the charge of drunkenness. Drunkenness is a question of
fact and smelling of alcohol, unsteady gait, dilation of pupils, incoherent speech would all be relevant
considerations [George Kutty vs. State of kerala, 1992 Cr.L.J 1663 (ker)]
                                       DNA TEST
Sec – 112 Indian Evidence Act – 1872 – DNA test – Powers of the court in directing
DNA test to determine paternity of child – test of ‘eminent need’ – DNA test in a matter
relating to paternity of a child should not be directed by the court as a matter of
course or in a routine manner, whenever such a request is made – court has to
consider diverse aspects including presumption u/s.112 I.E.A, pros & cons of such
order and the test of ‘eminent need’ whether it is not possible for the court to reach
the truth without use of such a test. [2010(7) SCALE; Bhabani Prasad Jena Vs.
Convenor Secretary, Orissa State commission for women and other. Coram:
Aftab Alam & R.M.Lodha J.J]

(2010)4 MLJ (CRL) 582 [C.T.Selvam] S.Vidya V State of T.N (this judgment reported
after the above said Supreme Court Judgment)

 Constitution of India , Art – 20 & 20(3) – Right to speedy trial – Testimonial
compulsion – Scope of.

 Held: The position is quite clear that requiring an accused to submit himself to a
DNA test would not amount to testimonial compulsion (Para.13)

 Comment: here the justice had not spoke about the ‘eminent need’ test so the
question is what he has tried to answer i.e. only to DNA is compulsion or not or
whether to prove the paternity of child the DNA test only enough instead of ‘eminent
need’ which is quite contra to the above said Supreme Court Judgment.

When DNA ‘test must be granted’?

2010 Cr.L.J 4341 [kar] Halappa vs. State of Karnataka.

  S. 53-A of Cr.P.C, deals with, examination of person accused of an offence of rape by
the Medical practitioner. It indicates that at the request of a police officer not below
the rank of a sub – inspector, the Medical Practitioner with good faith makes such an
examination of the arrested person and use such force as is reasonably necessary for
that purpose.
   This section is not ultra vires of the Constitution. Drawing the blood sample for the
purpose of civil proceedings without the consent of the party is not desirable. But
drawing of the blood sample for detection of the offence of rape where in the
investigation agency has to establish its case beyond reasonable doubt, cannot be
termed as violation of Art.20(3) of Constitutional law.

2010 (2) MWN        (Cr)   61   (SC)   [K.G.Balakrishnan   C.J.I;   R.V.Raveendran    &
J.M.Panchal J.J]

  Involuntary administration of Scientific techniques viz., Norco Analysis Test,
Polygraph Test, BEAP Test – violates ‘Right against self – incrimination’ enumerated in
Art. 20(3); Right of Privacy’; ‘Right of Personal Liberty’ Art. 21.
(2010) 4 MLJ (CRL) 582. [C.T.SELVAM .J]
 Constitution of India (1950), Art – 21 & 20(3) – right to speedy trial – testimonial
compulsion – scope of .
  Held: the position is quite clear that requiring an accused to submit him to a DNA
test would not amount to testimonial compulsion.

 2010(3) MWN (CRL) 143; (2011) 1 MLJ (crl) 149 [T.SUDANTHIRAM. J].
S.53 Cr.P.C – I.P.C Ss.417 & 376 – order allowing petition to subject accused
/petitioners, P.W-1 & child for DNA test – legality – petitioner facing charges for
offences u/Ss. 417 &376, I.P.C – petition for DNA test filed by de-facto complainant
after arguments of both prosecution and defence heard and case posted for judgment
– petitioner/accused not ready to give his consent for DNA test – unless accused
accedes and gives his consent for DNA test – principles laid down by Apex Court in
Selvi v. State of Karnataka 2010 (2) MWN (crl) 61(SC) followed – though it is possible
for trial court to draw an adverse inference from denial of accused for DNA test,
it is not proper to pass order directing accused to subject him to DNA test – impugned
order liable to be set aside.

                                            AGE WRITING
Sec.451 question considered as to whether the court can order to send documents for
forensic opinion regarding the ‘age of the writings and signatures’ on disputed
documents (cheque).Held: the head of the department of forensic science who is before
the court has informed the court that there is no expert in the field, and also that all
such documents sent already were returned without offering any opinion – in view of
all the impugned orders of the learned magistrate are set aside and the request for
sending the documents for ascertaining the age of the writings is rejected10. In 2008(1)
CTC 496 (S.Gopal Vs. P.Balachandran) it was held that there is no scientific facility to
determine the age of the ink. In R.Jagadeesan vs. N.Ayyasamy 2010(1)CTC 424 it
was held that the Central Forensic Science Laboratory at Hyderabad has the facility to
ascertain the age of Ink. So it was held in 2011-1-L.W (Crl) 297 [His Lordship Mr.
Justice G.M.Akbar Ali] that the fair opportunity to be given to the accused and the
petition requesting to send the document to find out the age of ink should be allowed.

 I.E.Act, 1872, S.73 – Handwriting expert – admissibility of report of – court ought to
have examined the hand writing expert in order to give an opportunity to the accused
to cross – examination the said expert – Whether opinion of the handwriting expert
can be admitted in evidence without examination of the handwriting expert – Held,
No11.

Complaint against appellant – evidence for defence – Appellant/Accused denied and
disputed execution of cheque in question – Application filed by him for examination of
hand writing expert, dismissed – Appeals – Appellant had filed two successive

10
     2010 – 1 – LW (crl.) 165 high court madras.
11
     [2010(8) SCALE 609 KESHAV DUTT V. STATE OF HARYANA]
applications and second application not maintainable – Appellant intended to delay
disposal of matter12.

Petition for taking assistance of hand writing expert to compare disputed signature in
cheque with that of admitted signature – After dismissing earlier petition, subsequent
petition on same ground cannot be entertained13.

Following the Apex court decision in Kalyani Basker v. M.S.Sampoornam14. After
dismissal of earlier petition for taking such assistance, subsequent petition on same
ground cannot be entertained.
Maxim:
      1. Res Judicata Pro Veritate Accipitur;
      2. Nemo debet bis vexari, si constat curiae quod sit pro una et eadem causa.
The gists of the maxims are that once the court adjudges the cause, subsequently, it
should not be adjudged.
The Magistrate having declined to send the document for the examination and opinion
of the hand writing expert has deprived the appellant of an opportunity of rebutting it.
The appellant cannot be convicted without an opportunity being given to her, there is
no fair trial. ‘Fair Trial’ includes fair and proper opportunities allowed evidence in
support of the defence is a valuable right. Denial of that right means denial of fair
trial15.


                                    ADVOCATES – CHEATING
(2010)3 MLJ (cri) 587;                            C.T.Selvam. J.;

  S – 482 Cr.P.C – 420 I.P.C – complaint – Legal opinion – erroneous – summons issued to a lawyer –
quash petition by lawyer – petition allowed.

Ratio Decidendi:
 An erroneous opinion cannot be the basis for prosecution u/s – 420 I.P.C.

                                         II.   COMPLAINT
     COMPLAINT

  A complaint in a criminal case is what a plaint is in a civil case. It is one of the modes
in which a Magistrate can take cognizance of an offence (s.190). The requisites of a
complaint are as follows:

a.      An oral or a written allegation,
b.      That some person known or unknown has committed an offence,


12
   (2010)1MLJ (crl) 405 (SC)
13
   2009 (2)MWN (Cr) DCC 106 G.Rajasurya J.
14
   JT 2007 (1) SC 77
15
   2007 (1) Crimes 106 (SC)
c.     It must be made to a Magistrate16, and
d.     It must be made with the object that he should take action.
No form is prescribed which the complaint may take. Allegations which do not amount
to an offence would not be a complaint17. Since no form of complaint is prescribed, an
affidavit may also amount to complaint. It is not necessary that a complaint should
contain in verbatim all the ingredients of the offence18.

 A Magistrate who on receipt of a complaint orders an investigation u/s.156 (3) Cr.P.C
and receives a police report u/s. 173(1), may, thereafter, do one of the three things19:
1.     He may decide that there is no sufficient ground for proceeding further and drop
action;
2.     He may take cognizance of the offence u/s. 190 (1) (b);
3.     He may take cognizance of the offence u/s.190 (1) (a) on the basis of the original
complaint and proceed, to examine the complaint and the witnesses u/s.200 Cr.P.C20.
S.201: If a complaint is made to a Magistrate, who is not competent to take cognizance
of the offence, in such a case, the Magistrate shall:

a.   If the complaint is in writing, return it for presentation to the proper court with
an endorsement to that effect;
b.   If the complaint is not in writing, direct the complainant to the proper court.

Initiation of proceeding for complaint cases under the code:
 Under / Section. 190(1)(a) of the Code of Criminal Procedure, the Magistrate has to
receive the complaint21.

POLICE REPORT

 A “police report”, which is newly defined in C.(r), has been expressly excluded from the
definition of complaint, but the explanation makes it clear that the report made by the
police officer shall be deemed to be a complaint in a case where after investigation if
discloses the commission of a non – cognizable offence(s). In such a case the police
officer shall be deemed to be the complainant22.

  S – 2(d): Explanation – in view of the explanation of Cl (d), the police is entitled to
submit, after investigation, a report relating to a non – cognizable offence in which case
such a report is to be treated as a ‘complaint’ of the police officer concerned, but the
explanation will not be able to the prosecution where in a case the police initiates
investigation into a cognizable offence, but ultimately finds that only a non –

16
   1979 Cr.L.J 557
17
   Ramanaumi Prasad, 1977 Cr.L.J NOC 27
18
   AIR 1999 SC 1216
19                                                                   TH
   THE CODE OF CRIMINAL PROCEDURE – RATANLAL & DHIRAJLAL [17 EDITION REPRINT 2010]
20
   Govind Mehta, AIR 1971 AC 1708
21
   2010(2) TLNJ 168 (Crl); O.C.Periasamy vs. D.Venkatesan @ others. [ T.Sudhanthiram]
22                                                           th
   Ratanlal & Dhirajlal – the Code of Criminal Procedure – 19 Edition – Chapter I – preleminary – page. 14 –
S.2(d) – synp.22
cognizable offence, but ultimately finds that only a non – cognizable offence has been
made out23.

                                                 COGNIZANCE
 This chapter deals with what is meant by cognizance?, how many types of
investigation?, can Magistrate orders for investigation of offence by a private person?,
what are the procedures to be followed while forward the complaint to investigation to
police or to private persons? – A COMMON UNDERSTANDING.

TAKING COGNIZANCE WHAT IS?

In24 it was held clearly what is the meaning of ‘cognizance’ and the scope?

 Cognizance of offences – taking ‘cognizance’ – what amounts to? – Though expression
“taking cognizance” has not been defined in Cr.P.C. it can be said that before any
Magistrate takes cognizance of an offence he must have applied his mind for the
purpose of proceeding in a particular way as indicated in the subsequent provisions.

  When a Magistrate applies his mind not for the purpose of proceeding under the
subsequent sections but for taking action of some other kind eg. Ordering investigation
u/s2.156(3) or issuing a warrant for the purpose of such investigation, he cannot be
said to have taken cognizance of the offence25.      The context ‘may take cognizance’
means ‘must take cognizance’. The Magistrate has no discretion in the matter’
otherwise the section will be violating of Art-1426. The term ‘taking cognizance’ means
any judicial action permitted by the code taken with a view to eventual action
prosecution preliminary to the commencement of the inquiry or trial. It does not any
formal involve or indeed action of any kind, but occurs as soon as a Magistrate applies
his mind to the suspected commission of an offence27. We find no force in the
contention. Though the code defines “cognizable offence” and “non-cognizable offence”,
the word ‘cognizance’ has not been defined in the code. But it is now settled law that
the court takes cognizance of the offence and not the offender. As soon as the
Magistrate applies his judicial mind to the offence stated in the complaint or the police
report e.t.c... Cognizance is said to be taken. Cognizance of the offence takes place
when the Magistrate takes judicial notice of the offence28.



                                          PROTEST PETITION

23
   Keshav lal thakur v.State of Bihar, (1996) 11 SCC 557; 1997 SCC(cri) 298(299
24
   1970 Cr.L.J 1075 [Ajith singh & others V. The State]
25
   AIR 1951 SC207.
26
   AIR 1951 SC207.
27
   AIR 1951 SC 207
28
   1996 Cr.L.J 408 (SC) K.Ramaswamy & B.C.Hansaria J.J
1. A BRIEF ABOUT WHAT IS CHARGE SHEET, FINAL REPORT E.T.C.?

      In M/s. India Sarat Pvt. Ltd. v. State of Karnataka and another (AIR 1989 SC 885);
In Abhinandan Jha and Another v. Dinesh Mishra (AIR 1968 SC 117) We may add here that the
expressions charge-sheet or final report are not used in the Code, but it is understood
in Police Manuals of several States containing the Rules and the Regulations to be a
report by the police filed under Section 170 of the Code, described as a charge-sheet.
In case of reports sent under Section 169, i.e., where there is no sufficiency of evidence
to justify forwarding of a case to a Magistrate, it is termed variously i.e., referred
charge, final report or summary [Bhagwant Singh's case].

2. PROTEST PETITION – WHAT IS?

 When on investigation police submits ‘final report’ u/s 169 Cr.P.C and the
complainant moves a petition in the court against the particular submission of final
report u/s 169 Cr.P.C and a prayer is made for not accepting such final report u/s 169
Cr.P.C and a further prayer is made for taking cognizance of an offence rejecting the
final report, then such petition is known as ‘Protest Petition’ or ‘Narazi Petition’29.

3. LEGAL IMPLICATION:

 The Magistrate will take cognizance of the offence u/s.190 (1) (b) Cr.P.C. Again, the
Magistrate may reject the police report and take cognizance of the offence on the facts
mentioned in the complaint or the Protest Petition such an action will be taken by the
Magistrate u/s.190 (1) (a) Cr.P.C30.

4. DUTY OF THE MAGISTRATE WHILE POLICE SUBMITTING FINAL REPORT U/S.169
& 173(2)(I):

      When a report forwarded by the police to the Magistrate under Section 173(2) (i)
is placed before him several situations arise. The report may conclude that an offence
appears to have been committed by a particular person or persons and in such a case,
the Magistrate may either (1) accept the report and take cognizance of the offence and
issue process, or (2) may disagree with the report and drop the proceeding, or (3) may
direct further investigation under Section 156(3) and require the police to make a
further report31, and the report may on the other hand state that according to the
police, no offence appears to have been committed. When such a report is placed
before the Magistrate he has again option of adopting one of the aforesaid three
courses open. Therefore it is now well-settled that upon receipt of a police report under
Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section
190(1)(b) of the Code even if the police report is to the effect that no case is made out
against the accused. As decided by this Court in Bhagwant Singh's case the Magistrate

29
   Criminal Trial – S.P.Tyagi – ‘Final Report and Protest Petition’ – Page – 1652 to 1653
30
   SatyaNarain Dubey Vs. State of Uttar Pradesh. 1984(2) Crimes 728; Shabir Al Vs. State of U.P. 1988 Cr.L.J N.O.C
17(All)
31
   In Abhinandan Jha and Another v. Dinesh Mishra (AIR 1968 SC 117)
   has to give the notice to the informant and provide an opportunity to be heard at the
   time     of   consideration    of   the    report.   It  was    noted   as     follows:-
   ....the Magistrate must give notice to the informant and provide him an opportunity to
   be heard at the time of consideration of the report. The aforesaid position was
   highlighted by this Court in Gangadhar Janardan Mhatre v. State of Maharashtra and Ors.
   (2004 (7) SCC 768).

   CLOSING OF COMPLAINT:
    After taking cognizance of the complaint and issuing summons to the accused, if the
   complainant is absent, as per summons case procedure, the Magistrate may invoke
   S.256 Cr.P.C and acquit the accused. After filing the complaint and the Magistrate on
   receiving the complaint fixes any date for recording the sworn statement of the
   complaint and the complainant is absent on the date and also on the subsequent
   dates fixed for the same, though there is no specific provision for discharging the
   accused, it would not be proper and justifiable to say that the court has to wait
   compulsorily and indefinitely for the appearance of the complaint. In such situation,
   the Magistrate may close the complaint, which would not amount be acquitted of the
   accused32.
                                         I. ARREST

   a.         WHAT IS ARREST AND WHEN?
           Securing the attendance during trial – Ss.87 & 204,
           Preventative measure – Ss.109, 151, 356(5),
           Any credible information received S.41,
           Accused escapes from custody,
           Removing obstruction to police.
           D.K.Basu case a detailed discussion.

   b. WHAT ARE THE PROVISIONS FOR ARREST?
     Ss.41-60 Cr.P.C

   c.          WHO CAN ARREST?

1. Police officer(customs officers, narcotic officers and enforcement officers are not
   police officers) during cognizable offence [S.41];

2. Police officer during non-cognizable offence [S.42] if a person 1. Who commits a
   non-cognizable offence in the presence of a police officer, or 2. Who is accused of
   committing such offence before such officer, at the time, if the police officer demand
   the name & address of such person and he refuses, than the officer may arrest the
   person or if the person gives correct name & address while demanding, he may be
   released by the police officer with or without sureties,


   32
        2010 (2) TLNJ 168 (Crl)
3. Private person [S.43] (private cannot arrest because ‘in his opinion’ or ‘in his
   suspicion’), Abdul habib 1974 Cr.L.J. 248. Once he arrests, he shall take the person
   to the nearest police officer or police station and the police officer shall ‘re-arrest’ the
   person,

4. Magistrate during remand and other time as prescribed by code [S.44]; Magistrate
   can arrest while accused surrender or appear33. If any offence is committed in his
   presence Magistrate can arrest such person by himself and commit him to custody; or
   if Magistrate can arrest a person who is suspected of having committed an offence,
   but, cannot commit him to custody but he direct to investigate.

5. Armed forces person can be arrested u/s.45. Only after getting the permission from
   the central government but, if any public maintenance to be held than the state
   government may arrest.

   d.   HOW THE ARREST CAN BE BASED UPON?
    Based on the facts and materials placed before him and cannot arrest offence being
   committed in the future34 and D.K.Basu case.

   e.      WHAT IS THE MODE OF ARREST [S.46]?

A. 1. Arresting authority Shall actually touch or confine the body

         2. Submission to the custody by word, or action.

       If the method of arrest is not performed as prescribed by S.46, the arrest would be
   nugatory35. The police officer or other persons can get assist from others in effecting
   arrest.

B. If arrest under warrant, police officer must notify the substance to the person and
   show him warrant (S.75), else the arrest is illegal.

   f.        CAN POLICE OFFICER ARREST ANY PERSON WITHIN / ANYWHERE
        INSIDE INDIA [S.48]?

   Yes. He can pursue the offender to any place within India for purposes the effecting
   his arrest is legal even the arrest is made outside his circl36.

   g.      HOW TO ARREST A MAGISTRATE OR JUDICIAL OFFICERS?


   33
      1996 Cr.L.J. 1309 vinod narain
   34
      Ashibmia (1962) Cr.L.J. 673
   35
      Roshan beebi vs. Joint secretary 1984 Cr.L.J 134 Mad
   36
      In Re. Madhu Limaye AIR 1969 SC 1014
        Delhi Judicial Service Tis Hazari court vs. State of Gujarat (1991) 4 SCC 406.

   h.        HOW TO ARREST A WOMEN?

    State of Maharashtra Vs. Christian community (2003) 8 SCC 546;
    2004 SCC (crl) 27; Rajkumari vs. Sho 2004 SCC (crl) 196.
    Amendments made in Cr.P.C.

   i.      WHETHER THE POLICE SHALL ‘OBLIGE’ WARRANT?
a) If officer denies arrest, Magistrate may inquire and pass appropriate orders [D.K.Basu
   case].
b) Police is under a legal duty to apprehend every person whom it is legally authorised to
   apprehend [S.23 of The Police Act, 1861]

   j.     WHAT IS THE PROCEDURE TO ARREST WITHOUT WARRANT?
   If a person arrested without warrant should immediately to be intimated the full
   particulars of offence and grounds of arrest. If offence is bailable, he should be
   informed of his legal right to be released on bail [S.50. AIR 1969 SC 1014].

    This is a constitutional right u/A-22(1) also how shall be informed about where he is
   detained and that should be informed also to his friend/family/relatives; the arrest
   must be registered in a book prescribed by the State Government [D.K.Basu case]. So
   also the Magistrate should ask the arrested person regarding the above rights [S.50-A].



   k.        When a summons and warrant may be issued?

      Summons in summons case and warrant in warrant case [Ss.87 & 204], but is left
   to the discretion to the Magistrate / judge.

   l.        What is the warrant, form of warrant and recall of warrant?

        Ss.70-73 & form no.2 in second schedule of, the code of criminal procedure.

        Ss.37 & 38 – duty of the private person to assist in execution of a warrant of arrest.

     Magistrate can give power to arrest with warrant to police & other than a police
   [Ss.37 & 38].
                                          D.K.BASU
                                              VS.
                                STATE OF WEST BENGAL37
   We, therefore consider it appropriate to issue the following requirements to be followed
   in all cases of arrest or detention till legal provisions are made in that behalf as
   preventative measures.

1. Police should bear accurate, visible & clear identification and name tags with their
   designation during arrest. The particulars of arrest must be recorded in a register.

2. Police during arrest – prepare memo and shall be attested at least one witness who
   may either be a member of the family of the arrestee or any local respectable person –
   countersigned by the arrestee and contains time and date.

3. Detained person in custody / interrogation centre or other lock up – shall be entitled to
   have one friend / relative / other person known to him or having interest in his welfare
   being informed as soon as practicable about his arrest.

4. The arrest and venue of custody must be notified by police to arrestee’s friend /
   relatives who lives outside the district or town through the legal aid organisation
   through telegraph within 8 – 12 hours after the arrest.

5. The person arrested must be made aware of the above rights as soon as he is put
   under arrest or his detain.

6. During arrest – entry must be made in the dairy regarding arrest, name of the person /
   friend who has been informed – names and particulars of the police officials.

7. Injuries to arrestee should, if he so requests be also examine any minor / major
   injuries the inspection memo must be signed by both the arrestee and the police.

8. The arrestee – medical examination by trained doctors – every 48 hours during his
   detention – by approved doctors appointed by director, health service.

9. Copies of all the documents including the memo of arrest referred to above to be sent
   to the magistrate for his record.

10. Arrestee may be permitted to meet his lawyer during his interrogation, though not
  throughout the interrogation.



   37
        1997 SCC (CRI) 92 Kuldip singh & Dr.A.S.Anand J.J
      11. Police control room should be provided at all district and state head quarters informed
        about the arrest & custody of the arrestee on a conspicuous notice boar.

          .36. Failures to comply will the requirements to be punished for contempt of court and
          high court will take action.

          .37. The requirements, referred to above flow from Arts. 21 and 22(1) of the
          constitution need to be strictly followed.

          .38. The requirements mentioned shall be forwarded to the D.G.P and Home
          Secretary and their obligation to circulate the same to every police station.

                                                       CHAPTER – XII

          A COMMON OUTLOOK OF THE CHAPTER XII:

              This section comes under the chapter XII of the Code of Criminal Procedure, 1973
          as INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE. As to
          the effect of the chapter head, the chapter starts with the section.154 as ‘information’,
          following that the investigation carrying on under this chapter by the police officers
          cannot be interfered by the courts either u/s.401 or u/s.482 Cr.P.C38.

             There is little doubt that, investigation of offences, is normally the function of the
          investigating agencies, and the Courts do not ordinarily interfere with the same. But,
          at the same time the High Court is vested with such powers, though the same are
          invoked only in cases when extraordinary facts are involved, necessitating such
          monitoring by the Courts. Courts, and in particular the High Courts and the Supreme
          Court, are the sentinels of justice and have been vested with extraordinary powers of
          Judicial Review and supervision to ensure that the rights of the citizens are duly
          protected – Courts have to maintain a constant vigil against the inaction of the
          authorities in discharging their duties and obligations in the interest of the citizens for
          whom they exist39.

          GIST OF THE CHAPTER XII OF THE CR.P.C:

           Before entering to the sections, it is better to come to a common understanding of the
          sections. Information given under sub-section (1) of Section 154 Cr.P.C is commonly
          known as first information report (FIR) though this term is not used in the Code. It is a
          very important document. And as its nickname suggests it is the earliest and the first
          information of a cognizable offence recorded by an officer in charge of a police station.
          It sets the criminal law in motion and marks the commencement of the investigation
          which ends up with the formation of opinion under Section 169 or 170 Cr.P.C, as the
          case may be, and forwarding of a police report under Section 173 Cr.P.C. It is quite

38
     A.I.R 1963 SC 447
39   2010 -1- L.W.(Crl) 654 Babubhai Jamnadas Patel VsState of Gujarat & Ors
possible and it happens not infrequently that more information than one are given to a
police officer in charge of a police station in respect of the same incident involving one
or more than one cognizable offences. In such a case he need not enter every one of
them in the station house diary and this is implied in Section 154 Cr.P.C. Apart from a
vague information by a phone call or a cryptic telegram, the information first entered
in the station house diary, kept for this purpose, by a police officer in charge of a police
station is the First Information Report -- FIR postulated by Section 154 Cr.P.C. All
other information made orally or in writing after the commencement of the
investigation into the cognizable offence disclosed from the facts mentioned in the first
information report and entered in the station house diary by the police officer or such
other cognizable offences as may come to his notice during the investigation, will be
statements falling under Section 162 Cr.P.C. The scheme of Cr.P.C is that an officer in
charge of a police station has to commence investigation as provided in Section 156 or
157 Cr.P.C on the basis of entry of the first information report, on coming to know of
the commission of a cognizable offence. On completion of investigation and on the
basis of the evidence collected, he has to form an opinion under Section 169 or 170
Cr.P.C, as the case may be, and forward his report to the Magistrate concerned under
Section 173(2) Cr.P.C. However, even after filing such a report, if he comes into
possession of further information or material, he need not register a fresh FIR; he is
empowered to make further investigation, normally with the leave of the court, and
where during further investigation he collects further evidence, oral or documentary,
he is obliged to forward the same with one or more further reports; this is the import of
sub-section (8) of Section 173 Cr.P.C. From the above discussion it follows that under
the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173
Cr.P.C only the earliest or the first information in regard to the commission of a
cognizable offence satisfies the requirements of Section 154 Cr.P.C. Thus there can be
no second FIR and consequently there can be no fresh investigation on receipt of every
subsequent information in respect of the same cognizable offence or the same
occurrence or incident giving rise to one or more cognizable offences. On receipt of
information about a cognizable offence or an incident giving rise to a cognizable offence
or offences and on entering the FIR in the station house diary, the officer in charge of a
police station has to investigate not merely the cognizable offence reported in the FIR
but also other connected offences found to have been committed in the course of the
same transaction or the same occurrence and file one or more reports as provided in
Section 173 Cr.P.C. A First Information Report cannot be lodged in a murder case after
the inquest has been held. It is fairly well settled that First Information Report is not a
substantive piece of evidence and it can be used only to discredit the testimony of the
maker thereof and it cannot be utilized for contradicting or discrediting the testimony
of other witnesses40.




40
     Pandurang Chandrakant Mhatre & Ors. Vs State of Maharashtra - http://www.indiankanoon.org/doc/793136/
                                                             S – 172 Cr.P.C

         OBJECT:

         The object of the special diaries or case diaries u/s – 172 is that the Magistrate or
         Judge before whom a case comes up for investigation or trial should have the means of
         ascertaining what was the information, true, false or misleading which was obtained
         from day to day by the police – officer who was investigating the case and what were
         the lines of investigation upon which the police – officer acted41.

         USE OF ‘POLICE DIARY’ NOT AS EVIDENCE BUT TO AID THE COURT:
          S – 172 (2) empowers a Criminal court holding an inquiry or trial of a case to send for
         the police diary of the case and the criminal court can use such diary not as evidence
         in the case, but to aid in such inquiry or trial, and also, merely because the case diary
         is referred to by the Criminal court, neither the accused nor his agents are entitled to
         call for such diary nor are they entitled to see it42.

         ACCUSED RIGHT ON POLICE DIARY:
          The accused can claim to see police diary as his right but only when the police officer
         uses the case diary for refreshing his memory or the court uses it for contradicting the
         police officer43.
          Supreme Court points out where the evidence on record clearly shows that the
         defence has freely used the entries in the case diary as evidence and marked some
         portions of the diary for contradictions or omissions in the prosecution case, it is
         clearly in negation of and in the teeth of S – 173(3)44.


                                               INTERVENTION PETITION

           There is no provision in the Cr.P.C which enables a third party to get himself
         impleaded in the proceedings before the criminal court. We have only S – 301
         Cr.P.C, which enables the private parties to assist the prosecution and also
         submit written arguments which the leave of the court. According to S – 301
         Cr.P.C, such assistance is to be given at the inquiry, trial or appeal in a
         criminal case. By “intervention” it is understood that a party who is in
         possession of facts may appear before the court as an intervener and make his
         submission on the matter in issue. In such cases, such a party is shown as
         intervener in the proceedings before the court45.



41
     Shamsul Kanivar Vs. State of U.P 1995(3) AWC 1486 (SC)
42
     Khatri Vs. State of Bihar 1981 Cr.L.J 597 (SC)
         43
            Mukand lal Vs. Union Of India, 1989 Cr.L.J 892(SC)
         44
            Malkiat Singh Vs. State of Punjab (1991) 4 SCC 341
         45
            1986 (Law Weekly) cri 165
  Ss – 438, 301, 302, 24(8) & 2(9) – Anticipatory bail – Right of victim to file an
intervene application in Anticipatory bail proceedings – Sessions court
dismissed victim’s application without even numbering, holding, such
application is not maintainable in view of provision contained u/s301Cr.P.C –
whether victim is entitled to be heard and take part in Criminal proceeding or
not – S – 301 is not a bar for entertaining an application to intervene in an
application filed u/s – 437 or 438 Cr.P.C – Provision u/s – 24(8) & 301 Cr.P.C
are mutually complimentary and not conflicting with each other and
there is no bar for engaging a lawyer to assist prosecution – victim has
every right to take part in prosecution – procedure law will have to provide a
method for dispensation of justice by which truth emerges – procedural law
will be in aid of justice delivery system46.
                                          V. BAIL

HISTORY OF BAIL:

The concept of bail can trace back to 399 BC, when Plato tried to create a bond for the
release of Socrates47. In The Magna Charta, in 1215, the first step was taken in
granting rights to citizens. It said that no man could be taken or imprisoned without
being judged by his peers or the law of the land. The Statute of Westminster in 1275
eliminated the discretion of sheriffs with respect to which crimes would be bailable.
Under the Statute, the bailable and non-bailable offenses were specifically listed. The
sheriffs retained the authority to decide the amount of bail and to weigh all relevant
factors to arrive at that amount [History of Bail]48. The modern bail system evolved
from a series of laws originating in the middle ages in England. In 1677, the English
parliament passed the Habeas Corpus Act, which, among its provisions, established
that magistrates would set terms for bail. The English Bill of Rights of 1689 declared
restrictions against “excessive bail” and later inspired the Virginia state constitution
and the Eighth Amendment to the United States Constitution. The Sixth Amendment
to the Constitution states that all people under arrest must “be informed of the nature
and cause of the accusation” they face and also allows a person to demand bail if he or
she is accused of a bailable offense [How Bail Works? by Jacob Silverman]49. The 1697
English Bill of Rights protected against judicial officers who might abuse bail policy by
setting excessive financial conditions for release, stating that “excessive bail hath been




46
     2010(4) CTC 833 [M.M.Sundresh. J]
47
   http://www.lawyersclubindia.com/articles/-INDIAN-SYSTEM-OF-BAIL--629.asp ; Watch Tower: Indian system of bail - anti
poor - Posted On Monday, April 12, 2010 - http://www.centralchronicle.com/viewnews.asp?articleID=32357 ;
48
   http://www.bail.com/history.htm
49
   http://money.howstuffworks.com/bail3.htm
   required of persons committed in criminal cases, to elude the benefit of the laws made
   for the liberty of the subjects. Excessive bail ought not to be required”50.

   RIGHT TO BAIL A BASIC EXPLANATION:

    The right to bail is inextricably linked to the knowledge and awareness of the accused
   of his right to obtain release on bail; this is further linked to Article 22(1) of the
   Constitution which provides that no person who is arrested shall be denied the right to
   consult and to be defended by legal practitioner of his/her choice. Also, pleading right
   to bail is the basic right to the prisoner or apprehend in who the law treats basically as
   an innocent till the final disposal of the judgment, and in intense we have to accept
   that this is the ‘Democratic Country’ where the people rule the people, that means is
   any harm or hurt happen to the people (society), where the ‘authority’ people summon
   and require the help of the accused / alleged person to find out the truth about the
   charge against the accused person (Until the final disposal or the conclusion about the
   truth, there are so many procedures to be followed, such as registration of harm / hurt
   / crime, investigation of crime, collection of evidences, statement of the witnesses and
   testimony of witnesses and argument of the parties who have involved in the crime as
   complainant and accused). It is normal and quite natural that the alleged person will
   scare and might not co – operate to the enquiry (in legal language ‘trial’), to make sure
   the alleged person or ‘accused’ to present on the date of proceedings against the
   ‘accused’, the ‘authority’ people who usually conducts the ‘trial’ / proceedings will
   detain (secure the ‘accused’ person) the alleged person for his presence in the above
   proceedings. But in the case to give respect the legal maxim ‘Actus non Facit Reum
   nisi mens sit Rea’, the ‘authority’ shall release the ‘accused’ person in bond or security
   that the ‘accused’ will show his presence in the proceedings by himself or through his
   representative.

   BAIL – WHY MANDATORY?

    There are several reasons which have been enumerated as to why bail ought to be
   allowed to prevent pre-trial / undertrial detention.

1. There are articles defined in Universal declaration as to why bail has to be granted to
   accused and that articles are also self explanatory like commentary which needs no
   explanation. The articles 9, 10 & 11(1) guarantees the accused regarding the arrest,
   public hearing and shall be treated as an innocent51 [P. V. Ramakrishna, “Law of
   Bails”, Seventh Edn., Lexis Nexis].

   50
        http://webcache.googleusercontent.com/search?q=cache:http://www.jailfreebailbond.com/bail-bonds.asp
   51Art 9- No one shall be subjected to arbitrary arrest, detention or exile.
     Art 10- Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in
   the determination of his rights and obligations and of any criminal charge against him.
2. Remember the way back of Bihar Jail prisons filled up by prisoners who stayed there
   even more than the period prescribed as punishment for the offences they were
   charged with- these appalling outrages were brought before the Supreme Court in
   Hussainara Khatoon v. State of Bihar52. Justice Bhagwati found that these
   unfortunate undertrials languished in prisons not because they were guilty but
   because they were too poor to afford a bail. He Mr. Justice Bhagwati thus ordered the
   release of persons whose period of imprisonment had exceeded the period of
   imprisonment for their offences. He brought into focus the failure of the magistrates to
   respect section 167(2) of Cr.P.C. which entitles an undertrial to be released from prison
   on expiry of 60 days or 90 days as the case may be.

3. Based on the diceyian (Dicey’s) concept ‘rule of law’ that ‘no one can deprived of his life
   and personal liberty by the executive action unsupported by law. Following the
   aforesaid concept ‘rule of law’ our constitution has empowered arrested persons with
   Art – 21 which affords protection to the arrested persons that no law can deprive a
   person of his/her life or personal liberty unless it prescribes a procedure which is
   reasonable, fair and just it would be for the court to determine whether the procedure
   is reasonable, fair and just ; if not, it would be struck down as invalid this is the theme
   which was held in Maneka Gandhi v. Union of India AIR 1978 SC 597.

     Now it is obvious to discuss about the free legal aid to the arrested persons, if not the
   poor prisoners who are not capable to produce bail bonds or incapable to pay fees to
   lawyers shall be detained in jail until they produce bonds in the sense of S – 167 and
   S – 436, 437. In the Indian Constitution there is no specifically enumerated
   constitutional right to legal aid for an accused person. Article 22(1) does provide that
   no person who is arrested shall be denied the right to consult and to be defended
   by legal practitioner of his choice. According to the interpretation by the Supreme
   Court in Janardhan Reddy v. State of Hyderabad, AIR 1951 SC 227 Also this Article
   does not carry out the free service of lawyer at state cost to a prisoner. But as we
   discussed earlier in the light of the concept ‘rule of law’ The right to free legal
   assistance is an essential element of any reasonable, fair and just procedure for a
   person accused of an offence and it must be held implicit in the guarantee of Article
   21.Thus the Supreme Court spelt out the right to legal aid in criminal proceeding
   within the language of Article 21 and held that this is….

   “a constitutional right of every accused person who is unable to engage a lawyer and
   secure legal services on account of reasons such as poverty, indigence or
   incommunicado situation and the State is under a mandate to provide a lawyer to an

   Article 11(1)- Everyone charged with a penal offence has the right to be presumed innocent until proved guilty
   according to law.
   52 AIR 1979 SC 1360
accused person if the circumstances of the case and the needs of justice so require,
provided of course the accused person does not object to the provision of such
lawyer.”

DISTINCTION BETWEEN ‘BAILABLE’ and NON – BAILABLE OFFENCE:

  When the offence is bailable, bail u/s. 436 Cr.P.C has to be granted without ‘ado’, but
if the offence is non – bailable, further consideration will arise and the court will decide
the question of grant of bail [i.e. seriousness of offence, character of the evidence,
accused not being secured at the trial, witness being tempered e.t.c..]53. The grant of
bail to a person accused of non – bailable offence is treated differently, at any time
while detention without a warrant and at any stage of the proceedings before the court
to which he is brought, he has the right u/s. 436 Cr.P.C to be released on bail
[KATILAL BHANJI MITHANJI vs. ASST. COLLECTOR AIR 1967 SC 1639; 1967
Cr.L.J 1576]54.

DIFFERENCE BETWEEN BAIL and ANITICIPATORY BAIL:

  The only distinction between ‘bail and anticipatory bail’ is that whereas the former in
granted after arrest and therefore means release from the custody of police; the latter
is granted in anticipation of arrest and effective at the very moment of arrest55.



BAIL – A COURT’S PERSPECTIVE:

The Supreme Court held: ‘the weapon should not be used to clip the wings of the
accused [AIR 1984 SC 372; 1984 Cr.L.J. 160].

PROVISION:

  The grant of bail to a person accused of bailable offence is governed by the provisions
of Section 436 Cr.P.C, 197356.

BAIL – RULE:

 Basic rule must be the ‘bail and not jail’57. Bail is the rule and jail is the exception58.


53
   STATE vs. JAGTI SINGH 1962(1) Cr.L.J 215; AIR 1962 SC 253
54
   1&2 SETTLED & OVERRULED CRIMINAL LAWS – HINDUSTAN LAW BOOK – 2008.                       `
55
   NATTNSASSEN VS. THE STATE 1998 Cr.L.J 1762 (MAD) relied on Gur Baksh Singh vs. State of Punjab; 1980(2)
SCC 565
56
   AIR 2009 SC 1341; 2009 Cr.L.J 1887
57
   AIR 1978 SC 429; 1978 Cr.L.J. 502
58
   Balchand vs State of Rajasthan, AIR 1977 SC 2447; (1977)4SCC 308
   In MotiRam Vs. State of Madhya Pradesh AIR 1978 SC 1594; (1978)4SCC 47
   contemplated on three main issues: -

1. Whether a person charged with a bailable offence can be released on his own bond
   without sureties.

2. In case the bail is granted with sureties, what should be the criteria for quantifying the
   amount of bail?

3. Whether a surety can be rejected simply because he or his estate is situated in a
   different district or a state of the country.

   MEANING OF BAIL:

    Bail means the security taken from a person to appear on a fixed date before a court.
   It may inter alia be taken from a witness, for transfer of a case, going to reference or
   revision, applying for payment of fine in instalments, undertaking the case of a lunatic
   or convict, preferring an appeal, released on probation of good conduct 59. Wharton’s
   Law Lexicon explains ‘bail’ as to set at liberty a person arrested or imprisoned, on
   security being taken for his appearance. Bail has been defined in the law lexicon as
   security for the appearance of the accused person on giving which he is released
   pending trial or investigation. According to Black's Law Dictionary, what is
   contemplated by bail is to "procure the release of a person from legal custody, by
   undertaking that he/she shall appear at the time and place designated and submit
   him/herself to the jurisdiction and judgment of the court.".




   WHEN BAIL ARISES?

    Question of bail arises only when a person is in custody or when a warrant of his
   arrest is issued60.

   BAIL – AS A MATTER OF RIGHT:

   Persons contemplated by S – 436 Cr.P.C cannot be taken into custody unless they are
   unable or willing to offer bail or to execute personal bonds – there is no manner of
   doubt that bail in a bailable offence can be claimed by accused as of right and the
   officer of the court, as the case may be, is bound to release the accused on bail if he is


   59
        LAW OF BAIL – GANGULY’S – 2007 – P. 1
   60
        1973 Cr.L.J 824; 1971 Cr.L.J 572
willing to abide by reasonable conditions which may be imposed on him61. An arresting
process is said to be bailable, when bail can be given, and the person arrested may
obtain his liberty in consequence62. If an offence is bailable, the accused can get bail
as of right. S – 436, Cr.P.C63. If the offence is bailable, bail will be granted u/s 436
Cr.P.C without much ‘ado’64. If the offence is cognizable but bailable the police officer
arresting the accused is duty bound to release the accused on bail 65. In case of
bailable offence, police or court cannot refuse to grant bail66.

BAIL and ACCUSED IN LOCK UP:

 Magistrate can grant bail where applicant is in the lock – up under arrest and it is
not necessary that accused person must be put up before the court67.

BAIL - WARRANT:

 In the case of a person who is not under arrest, but for whose arrest warrants have
been issued, bail can be allowed if he appears in court and surrenders himself68.

BAIL – CHARACTER OF ACCUSED:

 The bad character of a man does not disentitle him from being bailed out if the law
allows it. The courts do not grant bail merely because an accused is respectable man
and is able to afford reasonable security69.




BAIL – APPLICATION:

 The usual practise is that a person desiring bail should first approach the lower
court, but this practise is not inflexible. There is no bar to the High Court entertaining
a bail application directly if peculiar circumstances exist70. The application for bail is
not maintainable unless the person is in Judicial Custody71.

61
   AIR 2009 SC 1341; 2009 Cr.L.J 1887
62                                                       ND
   EARL UOWITT’S: THE DICTIONARY OF ENGLISH LAW, 2 EDITION, AT. 195
63
   AIR 1958 SC 37; AIR 1992 SC 1618; 1992 Cr.L.J. 2330; AIR 1973 SC 2204
64
   1962(1) Cr.L.J 215; AIR 1962 SC 253
65
   AIR 1981 SC 368; 1981 Cr.L.J 1413
66
   AIR 1981 SC 368; 1980 Cr.L.J 1475
67
   30 Cr.L.J 718; AIR 1929 All 614
68
   AIR 1954 MB 113
69
   1958 Cr.L.J 561
70
   1960 Cr.L.J 236
71
   AIR 1980 SC 785; 1980 Cr.L.J 426
BAIL – SURITY:

  The solicitor for the accused ought not to be a surety72. Even so poor men, young
persons, infirm individuals and women are weak categories, and courts should be
liberal in releasing them on their own recognisance. The court’s direction for local
sureties is illegal73. In addition Mr. Justice V.R.Krishna Iyer blasts continued as ‘To
add insult to injury, the Magistrate has demanded sureties from his own district’.

REFUSAL OF BAIL:

 Refusal of Bail is not an indirect process of punishing an accused person before he is
convicted. This is a confusion regarding the rational of bail. There is not as yet any
allegation against the appellant to interference with the courts of justice or other well –
established grounds for refusal of bail74. Refusal of bail to courts is discretionary since
the jurisdiction is discretionary it was required to be executed with great care and
caution by balancing valuable right of liberty of an individual and the interest of the
society in general. In granting or refusing the bail, the courts are required to indicate,
may be very briefly, the reasons for grant of refusal of bail75.

ANTICIPATORY BAIL / PRE – ARREST BAIL

DEFINITION:

  Anticipatory Bail means that the accused anticipates that some non – bailable offence
may be levelled against him and he may be arrested and in that expectation he goes to
a magistrate and moves for bail. No question of Anticipation arises when a non –
bailable offence has been registered against him and he is an accused in the fullest
sense of term. A person accused of a crime is always under the shadow of fear and that
is a sufficient restraint on his movements, entitling him to move for bail76. The facility
which S – 438 Cr.P.C gives is generally referred to as ‘anticipatory bail’. This
expression which was used by the Law Commission in its 41st report is neither used in
the section nor in its marginal note. But the expression ‘anticipatory bail’ is a
convenient mode of indication that it is possible to apply for bail in anticipation of
arrest. Section 438 of the Code of Criminal Procedure, 1973 has various provisions for
the granting of anticipatory bail. It lays down the directions for grant of bail to any
person apprehending arrest. The 2005 Amendment of the Code has brought in a
change in the 1st clause of the section wherein certain factors for consideration have

72
   LAW SOCIETY’S GAZETTE, 1952, P – 390
73
   MOTIRAM vs. STATE OF M.P. AIR 1978 SC 1594
74
   MOHAN SINGH vs. UNION TERITORY OF CHANDIGARGH; (1978)2 SCC 366, 1978 Cr.L.J 844
75
   MANSAB ALI vs. IRSAN, 2003 Cr.L.J 871 (SC)
76
   1967 MLJ (cr) 771; 1967 KER LT 566
been laid down for directing the Courts as to when anticipatory bail can be granted.
They are, namely-

(i) The nature and gravity of the accusation;

(ii) The antecedent of the applicant including the fact as to whether he has previously
undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(iii) The possibility of the applicant to flee from justice; and

(iv) Where the accusation has been made with the object of injuring or humiliating
      the applicant by having him so arrested.

  If the considerations are satisfied, then the anticipatory bail is granted i.e. the High
Court or the Court of Session as the case may be, will issue an interim order for the
grant of anticipatory bail. However, the blanket guidelines cannot serve the purpose of
day to day problems that invariably crop up while dealing with the matter of
anticipatory     bail.    Some      prominent      points   in     this    regard     are-
Anticipatory bail orders should be of a limited duration.
 Anticipatory bail can be filed either in Sessions Court or High Court
Anticipatory bail can be applied for in the Court in whose jurisdiction the person
ordinarily resides Circumstances which should be borne in mind while determining the
question of anticipatory bail,
  A ‘blanket order’ of anticipatory bail should not generally be passed
Order of anticipatory bail must show the reasons for making the order
Absconding       person      cannot       be     released    on      anticipatory      bail
Anticipatory    bail   to    be    effective  till   the   conclusion     of    the   trial
Anticipatory bail once rejected by the Sessions Court cannot be maintainable on the
same ground[Aditi Aparajita, Member, SACJ 2007-08, NUJS]77.

PROCEDURE:

 Anticipatory Bail can be granted only by the High Court or a Court of Session. The
grant is confined only to cases involving non – bailable offences. Anticipatory Bail will
be granted on the same considerations on which bail is granted u/s 437 to a person
accused of non – bailable offences. In addition, the court must be satisfied that if
Anticipatory Bail is refused, an irreparable wrong or injustice might result which it is
desirable to avoid78.

 The constitution Bench of Supreme Court79 was held “that there is no justification for
reading into S.438 Cr.P.C and the limitations mentioned in S.437 Cr.P.C”, and

77
   http://sacjnujs.blogspot.com/2008/12/provision-of-anticipatory-bail-in-india.html
78
   1975 Cr.L.J 1681 (ori)
79
   Grurbaksh Singh Sibbia & others Vs. State of Punjab (1980) 2 SCC 505
continued “that a person seeking Anticipatory Bail is still a free man entitled to
the presumption of innocence”, and concluded “that it is a settled legal position that
the court which grants the bail also has the power to cancel it. The discretion of grant
or cancellation of bail can be exercised either at the instance of the accused, the Public
Prosecutor or the complaint on finding new material or circumstances at any point of
time”, following the above it is held by the Apex court80 “that the practise of passing
orders of Anticipatory Bail operative for a few days and directing the accused to
surrender before the Magistrate and apply for regular bail are contrary to law” and it
continues as follows.

.109.... According to the Saluddin’s Abdulmad Shaikh Vs. State of Maharashtra81, the
accused has to surrender before the trial court and only thereafter he/she can make
prayer for grant of bail by the trial court. The trial court would release the accused
only after he has surrendered.

.151... In the instant case there is a direct judgment of the constitution Bench of this
court in Sibbia’s case dealing with exactly the same issue regarding ambit, scope and
object of the concept of the Anticipatory Bail enumerated u/s.438 Cr.P.C. The contra is
no longer res integra. We are clearly bound to follow the said judgment of the
Constitutional Bench.

  The question, whether the powers under section 438 Cr.P.C are unguided or
uncanalised or are subject to all the limitations of section 437 Cr.P.C?. The
Constitution Bench in Sibbia’s case has clearly observed that there is no justification
for reading into sections438 and the limitations mentioned in section 438 Cr.P.C. the
court further observed that GRANT OF BAIL FOR LIMITED PERIOD IS CONTRARY
TO THE LEGISLATIVE INTENTION AND LAW DECLARED BY THE CONSTITUTION
BENCH82.

POWER OF GRANTING ANITICIPATORY BAIL BY SESSIONS / HIGHCOURT:

 Application for Anticipatory Bail directly to High Court is maintainable83. The power
being of important nature it is entrusted only to the higher echelons of judicial forums,
i.e. the Court of Session or the High court. It is the power exercisable in case of an
anticipated accusation of non – bailable offence. The object which sought to be
achieved by Section – 438 Cr.P.C is that the moment a person is arrested, if he has


80
   2010 (12) SCALE; Siddharam Satlingappa Mhetre Vs. State of Maharashtra & others [Dalveer Bhandari &
K.S.Panicker Radhakrishnan J.J]
81
   (1996)1 SCC 697.
82
   2010 – 2 – L.W (crl) 1385 (SC) – Siddharam Satlingappa Mhetre vs. State of Maharashtra & others.
83
   1975(2) Cr.L.J 264
    already obtained an order from the court of Session or High Court, he shall be released
    immediately on bail without being sent to jail84.

    DIFFERENT CASES AGAINST ACCUSED:

      Two different offences in two different acts against the accused. In the previous
    investigation, even the house of the accused was searched and he was interrogated
    with respect to the same file. In these circumstances, the petitioner may be granted the
    concession of pre – arrest bail85.

    CANCELLATION OF BAIL:

    Bail granted to an accused with reference to bailable offence can be cancelled only if
    the accused
   Misuses his liberty by indulging in similar criminal activity,
   Interferes with the course of investigation,
   Attempts to tamper with evidence of witnesses,
   Threatens witnesses or indulges in similar activities which would hamper smooth
    investigation,
   Attempts to flee to another country,
   Attempts to make himself scarce by going underground or becoming unavailable to the
    investigating agency,
   Attempts to place himself beyond the reach of his surety, e.t.c...
     These grounds are illustrative and not exhaustive – cannot be cancelled on the ground
    that the complainant was not heard – when a police officer releases a person accused
    of a bailable offence, he is not required to hear the complainant at all.
      Similarly, a court while exercising powers u/s – 436 Cr.P.C is not bound to issue
    notice to the complainant and hear him86.

    Shukpal V. State of Rajastan 1986(1) RLW 283[Raj H.C].

     When a person is on Anticipatory Bail and some new offences have been added during
    investigation, then police cannot arrest an accused by adding a non – bailable offence.
    The police must seek an order from the court for cancellation of bail already granted to
    a person.

    Gheesya & others V. State of Rajastan. 1989(1) Crimes 524 [Raj H.C].

     The principle that when a person is released on bail or released on Anticipatory Bail,
    he cannot be arrested if another offence is found to have been committed by him at the

    84
       Adri Dharan Das vs. State of West Bengal, AIR 2005 SC 1057; 2005 Cr.L.J 1706; 2005(4) SCC 303; 2005 SCC(Cri)
    933; 2005(2) Supreme 363
    85
       1978 Cr.L.J (Cri) 53
    86
       AIR 2009 SC 1341; 2009 Cr.L.J 1887
time of investigation of the case, is well settled and if court considers it proper then the
bail granted can be cancelled u/s. 437(5) & 439(2) Cr.P.C.



Kalia @ Saroj prabaraj Vs. State of Orissa. 2000(2) Crimes 331.[Orissa H.C].

 Once the accused against whom a case has been registered for commission of a non –
bailable offence is released on bail, he cannot be re – arrested if the case is converted
to a serious offence that provides severe punishment.

Dhivan vs. State of Tamilnadu. 2010 (2) MWN (cri.) 5 [Tamilnadu H.C]

 Petitioner, though already on bail, apprehending arrest after addition of S – 302 in
final report – apprehension of arrest, held, baseless when petitioner very much on bail
– adding of penal provision of severe offence viz. S – 302 I.P.C. would not make bail
automatically cancelled – bail once granted remains in force unless cancelled by
positive order passed by appropriate court – police not empowered to re – arrest
accused until bail granted earlier is cancelled – petitioner being very much on bail, no
question of granting Anticipatory Bail.

 BAIL and HIGH COURTS – ART – 226.

 the Article 226 of the constitution of India, which will come to rescue because of
denial of legal as well as fundamental right of speedy justice, which will include right of
speedy trail. So direction can be given in the form of writ of Mandamus to the lower
courts to consider the Bail Petition as fast as possible for them but the points of
caution that to be noted is the fact that whenever such direction will be issued then
the High Court must take care that the speedily disposal must not cause injustice
because is excepted fact that if justice delayed is justice denied then justice hurried is
justice buried [The author is Vth Semester Student Of National law University,
Jodhpur]87.

                                                       V. REMAND
GENERAL TERMS DEFINITIONS:

 Accused means – the person against whom some accusation is made, but for the
purpose of S – 167, any person arrested during an investigation is indeed an accused
person within the meaning of S – 167, whether or not there is a clear allegation against
him88.


87
     Article 226 and Bail Petitions – MANUPATRA website – content – articles – subject criminal.
88
     In re: Upputhalla Sree Nivasulu, AIR 1958 AP 37; 1958 Cr.L.J 18; 1957(1) Mad LJ (cri) 368
 The expression “the Magistrate” would mean the Magistrate having jurisdiction to try
the case89.

 The word custody means police custody as well as judicial custody90.

 Remand means- remand must be „term‟ i.e. a fixed period and no sine die and the
term cannot exceed 15daysin all [krishnaji, 23B, 32]. Detention can be ordered for 15
days in the whole including one or more remand i.e., not at a time. Now the question
arise as to why the accused cannot send to the police custody after 15 days, the
answer was explained by the High court Kerala in Chadayam Makki V. State of
Kerala, 1980 Cr.L.J 1195 at P.1196(Ker HC) " the scheme of the section is intended
to protect the accused from an unscrupulous police officer". Reading s – 57 & s – 167
it is clear that the legislature contemplated that the investigation should be completed
in the first instance within 24 hours (u/s. 57)and with in 60 or 90 days (u/s. 167)91.

REMAND:

 The word ‘remand’ does not occur either in S – 167 (2) or S – 437 Cr.P.C. this word is
mentioned only in S – 309 Cr.P.C92. The power of a court to direct re – remand of an
accused either in terms of S – 167 (2) or S – 309(2) Cr.P.C will depend on the stages of
trial. Whereas S – 167(2) Cr.P.C would be attracted in a case where cognizance has not
been taken, S – 309 (2) Cr.P.C would be attracted only after cognizance has been
taken93. When a person was arrested merely on suspicion u/s. 41(1)(d) or u/s. 151
Cr.P.C which does not amount to an offence, much less, a cognizable or non – bailable
offence, there is absolutely no warrant for Magistrate to order the detention of that
person in Judicial Magistrate. Such a person cannot, without anything more, be
remanded to Judicial Custody. On the contrary such person should be released on bail
by invoking the power u/s. 436 Cr.P.C treating the case as a bailable one94.



Remand in Criminal Rules of Practice and Circular orders, 1958:

Rule.76: REMAND: (1) Magistrates shall not grant remands to police custody unless
they are satisfied that there is good ground for doing so and shall not accept a general
statement made by the investigation or other police officer to the effect that the
accused may be liable to give further information.

89
   Nataba V. State of Orissa, AIR 1975 SC 1465; 1975 Cr.L.J. 1212
90
   State of Guj vs Pramukhlal 1975 Cr.L.J 324
91
   Artatran V. State of Orissa AIR 1956 Ori 129
92
   Deepak Vs. Director 1991 Cr.L.J 1124. Dal
93
   Dinesh Dalmia Vs. C.B.I 2008 Cr.L.J 337 S.C
94
   Manikandan vs. State 2008 Cr.L.J. 1338 Ker
 A request for remand to police custody shall be accompanied by our affidavit setting
out briefly the prior history shall be accompanied by an affidavit setting out briefly the
prior history of the investigation and the likelihood of further clues which the police
expect to derive by having the accused in custody, sworn to by the investigating or
other police officer, not below the rank of S.I of police. Magistrate may decide after
perusal of the affidavit themselves about the accused being sound in mind and body
before entrusting him to police custody by questioning him whether he had in any way
been interfered with during the period of custody. When the object of a remand is
verification of the statement of an accused, he shall, whenever possible, be remanded
to the charge of a magistrate; and the period of remand shall be as short as possible95.

 Judicial Custody explanation: the power of detain an accused vests in the Criminal
court and the Jail authorities simply carry out the orders by keeping an accused in
physical custody. So the power of detention vests in the court and not in the Jail
authorities96.

  Remand by Sessions Court: Sessions court can remand an accused to custody only
if it has taken cognizance of the offence or if the trial has commenced97.

  Judicial Custody to police custody: A person held in Judicial Custody could, if
circumstances justify, be transferred to police custody or vice versa within a period of
15 days referred in S - 167 (2) Cr.P.C98. No torture in police custody99.

DUTIES OF THE POLICE OFFICALS:

The police officer can keep an arrested person for 24 hours only if he can complete the
investigation within 24 hours100. It is the duty of the police officer [who is in charge of
the police station or not below the rank of sub - inspector] to produce the accused
arrested without warrant to the magistrate having proper jurisdiction or to the nearest
available magistrate [including any Executive Magistrate (s - 167 2-A) along with a
copy of the entries in the diary prescribed relating to the case [sec - 167(1)]. A police
officer cannot detain an arrested person without a warrant for more than 24 hours [sec
- 57]. No person can be detained in police custody beyond 24 hours. Detention beyond
24 hours as a sequel to arrest becomes unlawful101. If a person is detained in police
custody beyond 24 hours, no offence u/s. 225 – B will be made out if he escapes102. If
95
   2010(2) TNLJ 529 (Crl) [C.T.Selvam]
96
   Pushpendra Singh Vs Superintendant 1984 Cr.L.J 838 (All)
97
   Kedar Vs. State 1977. Cr.L.J 1230(All)
98
   Konsanapu Ramreddy vs State of A.P. AIR 1994 SC 1447
99
   D.K.Basu vs W.B. AIR 1997 SC 610
100
    State v. Ram Autar, AIR 1955 ALL 138; 1955 Cr.L.J 394
101
    Manoj v. State of Madhya Pradesh, 1999 (3) SCC15: AIR 1999 SC 1403: 1999(2) Crimes 329 (SC)
102
    Lakshmi Narsu V. State 1955 NVC 2355
the police officer does not produce the person arrested before JM within 24 hours and
confession of the accused is recorded in that period, the confession would be
presumed to be involuntary and irrelevant103.        If the police do not produce the
accused to the JM, the arrested person would be entitled to a writ of habeas corpus
directing his release. But, before moving a writ he has to seek remedy u/s 482 or 439
Cr.P.C104.

POWERS OF THE MAGISTRATE, CHIEF JUDICIAL MAGISTRATE AND SESSIONS
JUDGE.

  There are two duties by a police officer and a magistrate in particular order to inform
the relatives, friends, well-wishers that the accused has been arrested and where is
being detained and an entry shall be required to be made in the dairy as to who was
informed of the arrest. And the magistrate before, whom the arrested person is
produced, to satisfy himself that these requirements have been complied with and
shall be followed in all cases of arrest till legal provisions are made in this behalf.
These protections must be held to flow from Articles 21 and 22(1) of the Constitution
and enforced strictly105. After the production of the accused before the judicial
magistrate within 24 hours after arrest, If the judicial magistrate [even he has or has
no jurisdiction to try that particular case/offence] thinks fit, may authorise the
accused in such a [judicial custody or police custody but normally everyone says this
as police custody] not exceeding 15 days on the whole [this means even a JM can order
3 days police custody] [sec - 167(2)]. The magistrate has complete freedom to order
detention in „any custody‟ as he thinks fit (words which do not appear in s – 309) i.e.
in police custody or judicial lock – up106 or from one jail to another. But u/s 167 the
Magistrate has always to exercise his judicial mind in deciding as to whether the
accused should be remanded to custody or not on the materials placed before him107.

 “Such custody‟ means: the detention of the arrested person in the police custody
shall not exceed 24 hours excluding the time necessary for the journey from the place
of arrest to the JM court108. The production of the arrested person before the nearest
JM is subject to bail provisions. It is open to the JM to remand the accused to judicial
custody. Therefore, it is clear that the person involved in crime in one part of this
country and produced before the nearest JM within the time prescribed by law, who
can either release him on bail or pass an order for custody. The above provisions of
103
    Mst. Bhagan v. State of Pepsu, AIR 1955 pepsu 33; 1955 Cr.L.J. 53
104
    Madhu Limaye, AIR 1969 SC 1014; 1969 Cr.L.J. 1440; Ram Narayan Singh V. State of Delhi AIR 1953 SC 277; 1953
Cr.L.J. 1113
105
    Joginder Kumar v. State of UP (1994)2 Crimes 106(SC)
106
    In Re: M.R.Venkataraman, AIR 1948 Mad 100; (1948) 49 Cr.L.J 41; 1947(2) Mad LJ 202
107
    E.P. Subba reddy V. State, AIR 1969 AP 281; 1969 Cr.L.J 1025
108
    Book: Criminal Trial & Investigation; Author: Banerjee; Chap – XIX. Syn. 10; page – 821
relate to the arrest of an accused by police officer without a warrant109. Once the
accused is remanded to judicial custody he cannot thereafter be remanded to police
custody110. There is no provision says what would happen after 15 days to avoid this
confusion supreme court held that in CBI vs. Anupam Kulkarni (1992) 3 SCC 141
that " After 15 days mentioned in S - 167(2) the accused can only be kept in judicial
custody or any other custody as ordered by the magistrate, but not the custody of the
police. It is the duty of the magistrate that he shall authorise detention of the accused
for the first time in any [police / judicial] custody only after see him directly. But the
magistrate may extend the further detention of the accused either produce him in
person or through electronic video linkage [sec 167(2-b)]. Remand of the accused to
police custody can be for 15 days only. Thereafter, further remand during period of 60
or 90 days can be judicial111. It is the duty of the Magistrate authorising detention of
the custody of the police shall record his reasons for doing so [sec - 167(3).If the JM
thinks fit and satisfied that the detention of the accused beyond the period of 15 from
the date of arrest for the purpose of the investigation, the JM can authorise for further
detention of the accused. But there are certain conditions

 1. The JM shall not send the accused to the police custody and the JM shall send the
accused to any other custody.

 2. The JM shall not authorise the detention of the accused more than 90 days where
the investigation relates to the offence punishable with death or life or imprisonment
not less than ten years (that means including 10 years),

 3. The JM shall not authorise the detention of the accused more than 60 days to any
other offence [s - 167(2-a)]. On the expiration of the said 15, 90 or 60 days, the JM
shall release the accused if he is ready to and does furnish bail bond [that means the
JM can refuse to release the accused if he does not produce bond, ex. It is compulsory
to release the accuse in bail after 90 or 60, the JM cannot stop that but if the JM asks
the accused to produce any bond [bond means any security as money or property or
document e.t.c..] for bail, and if the accused does not produce bond, the JM need not
to release the accused on bail until he produce the bond [sec 167 (2-a)].

   It is the duty of any magistrate who is below the rank of Chief Judicial Magistrate
making any detention order of any accused under this section shall forward a copy of
his order with reasons for making it, to the CJM [s - 164(4)]. It is the discretionary
power of the JM in summons case, if the investigation is not concluded(completed)
within a period of six months from the date on which the accused was arrested, the

109
    C.Natesan V. State of Tamil nadu 1999 Cr.L.J. 1382 at 138, 1388 (mad)
110
    Trilochan Singh V, State, 1981 Cr.L.J 1773; 1981 Raj LR 635 (Del); 1997 Cr.L.J 1989
111
    CBI v. Anupam j. Kulkarni, AIR 1992 SC 1768; (1992) Crimes 310
magistrate shall make an order to stop further investigation of the offence(a summons
case) [sec - 167(5)].

Remand after charge sheet: after charge sheet has been submitted the JM cannot
pass order u/s 167 before taking cognizance. After the charge – sheet has been
submitted he can pass order of remand u/s 309. If he passed an order of remand u/s.
167 it is illegal and the accused are entitled to bail112. Needless to enter into any
details the matter of remand to judicial or police custody is a matter purely within the
discretion of the subordinate court. A police custody remand cannot be claimed as of
right113.

RIGHTS OF THE ACCUSED:

It is the duty of the JM to inform the accused that he has a right to be released on bail
under the proviso to S 167 (2)114. The prosecution can make an application to the
session’s judge against the order of the JM who stopped the further investigation or
otherwise, the session’s judge may, if he is satisfied vacate the order previously made
by JM under sec 167(5). Here otherwise means even the sessions judge can vacate the
order by his own discretion without any application, but he cannot prevent the JM to
make any such order under sec 167(5). The right to bail u/s.167(2)(a) is absolute. It is
a legislature command and not court’s discretion. If the investigation agency fails to
file charge sheet before the expiry of 60 / 90 days, as the case may be, the accused in
custody should be released on bail. But at that stage merits of the case are not to be
examined _ Not at all. In fact, the Magistrate has no power to remand a person beyond
the stipulated period of 60 / 90 days. He must pass an order of bail and communicate
the same to the accused to furnish requisite bail bonds115.

PROVISIONS FOR DETENTION:

  During the pendency of the investigation, detention of the accused can be u/s 167,
and s-209 provides for detention during the pendency of the commitment proceedings
and s – 309(2) provides for detention of the accused person during the pendency of the
trial or inquiry116.

PROVISION REGARDING BAIL

 If a person arrested by the police of bailable offence, is prepared to give bail either
when he is in custody of the police or when he is brought before the JM u/s. 57 the

112
    Gyann V. State of Karnataka, 1977 Cr.L.J. 632; Ramdeo Mahto V. State of Bihar, 1978 Cr.L.J 1074
113
    State of U.P vs. Shooraj singh. 1984(1) Crimes 92 (93)
114
    Khatri (II) V. State of Bihar (1981) 1 SCC: 1981 SCC (cri) 228 at P.233
115
    Rajnikant Jiwan Vs J.O.Narcotic; AIR 1990 SC 71
116            th
    Cr.P.C – 7 edition – P.Ramanatha Aiyars – page, 1669
police or the JM has to enlarge him on bail117. Thus it can be clearly seen that right of
accused arises as soon as the period prescribed is completed. He can on any day after
that file the bail application. The words 'if he is prepared to and does furnish bail' used
in the section makes it clearer that it is the accused who has to diligently exercise the
right. If in the meantime the charge sheet is filed the right to bail remains. But the
right to statutory bail extinguishes [Vijayalekshmi Omana]118. Immediately on filing a
charge – sheet u/s 173, the period of remand pending investigation comes to an end
and the provisions of s – 167(2) ceases to apply and bail can be granted on merits u/s
– 437119.

The above judgment was overruled by next.

 Because of the deeming fiction provided is S- 167 (2)(a) all the provisions of Chap.
XXXIII apply to a case in which bail has been granted under the proviso. The effect is
that if a person is released on bail during investigation the bail granted operates even
after the charge – sheet is filed. It is open to the prosecution to apply for cancellation of
bail u/s – 437 (5)120. s- 167 does not empower cancellation of the bail, the power to
cancel the bail can only be traced to S – 437(5) or S – 439(2) of the code. Once an
accused is released on bail u/s 167(2) he cannot be taken back in custody merely on
the filing of a charge - sheet but there must exist special reasons for so doing, besides
the fact that the charge – sheet reveals the commission of a non – bailable crime121.

CUSTODY OF POLICE

Police cannot claim remand to ‘police custody’ as of right u/s.482 Cr.P.C [1984
(1) Crimes 92].

Definition:

 The phrase ‘police custody’ for the purposes of this chapter means ‘police custody’ for
further investigation and interrogation of an accused for detection of crime and
recovery of material objects connected with such crime122. The only section in the
Cr.P.C. 1973, in which remand of ‘police custody’ can be authorised is s – 167 (2) of
the aforesaid code. u/s – 167(2) of the code, an accused can be detained in police or




117
    Kanu Bhai V. State of Gujarat. 1973 Cr.L.J 533
118
    http://senseoflaw.blogspot.com/2009/12/criminal-procedure-code-section-1672-1.html
119
    Lakshmi Brahman V. State 1976 Cr.L.J. 118, Sharawan, 1976 MLJ 654
120
    Umed Singh, AIR 1977 G 11
121
    Jagdish Singh V. State of Punjab, 1996 Cr.L.J 1289; 1996(2) Crimes 500
122                                                                  th
    Principles of REMAND BAILS and HAND CUFFING – S.P.TYAGI – 4 edition 2002 – page, 27
judicial custody whereas u/s.309 of Cr.P.C, an accused can be remanded only to
‘judicial custody’123.

Purpose:

 Another important purpose for granting remand of police custody is to afford
opportunity to the investigating officer to ensure the continuity of investigation which
can only be guaranteed when a person is in custody [Gurbaksh Singh vs. State of
Punjab 1987 Cr.L.J 20]. Purpose of remand can be ordered to ‘police custody’ to enable
the investigating agency to collect evidence or even to drop the accused person from
the array of accused persons124.

Explanation for 167(2) - custody of police - counting fifteen days:

The proviso is intended only for keeping an arrested person under detention for the
purpose of investigation and the legislature has provided a maximum period for such
detention. On the expiry of the said period the further custody becomes unauthorized
and hence it is mandated that the arrested person shall be released on bail if he is
prepared to and does furnish bail. It may be a different position if the same accused
was found to have been involved in some other offence disconnected from the offence
for which he is arrested. In such an eventuality the officer investigating such second
offence can exercise the power of arresting him in connection with the second case125.



Explanation - custody of police in two different cases on one single accused:

 Their Lordships have clarified that is one case is registered against the accused in
which during the course of investigation it is found that he has committed more than
one offence then it will be treated to be one investigation and for offence a separate
police remand cannot be sought. But in case it is a different offence which has been
committed by him then it will be a separate case registered and separate investigation
will be taken up and for that the detention by the accused in the previous case cannot
be counted towards a new case or different case registered against the accused. In fact,
the observation in this case answers the question raised in the petition126.

Re-arrest or second arrest - seeking police custody - after the expiry of first 15
days:


123
    Gauri Shankar vs State of Bihar 1972 Cr.L.J 505; AIR 1972 SC 711
124
    Velu Vishwanathan Vs. State of Kerala. 1971 Mad.L.J (cr) 13
125
    BHARATI CHANDMAL VARMA V. STATE OF MAHARASHTRA (2002)2 SCC 121
126
    CBI, NEW DELHI V. ANUPAM J KULKARNI (1992)3SCC 141
 A literal construction of s 167(2) to the effect that a fresh remand for police custody of
a person already in judicial custody during investigation of a specific case cannot
under any circumstances be issued, would seriously hamper the very investigation of
the other case the importance of which needs no special emphasis. It is true that the
police custody is not the be all and end all of the whole investigation of serious and
heinous crimes. The legislature notices and permitted limited police custody. The
period of first fifteen days should naturally apply introspect of the investigation of that
specific case for which the accused is held in custody. But such custody cannot
further held to be a bar for invoking a fresh remand to such custody like police
custody in respect of an altogether different case involving the same accuse127.

NO FILING – CHARGE SHEET BY PROSECUTION IN TIME – ACCUSED CAN
RELEASED IN BAIL BY DEFAULT:

 The court concerned has adopted any dilatory tactics or an attitude to defeat the right
of the accused to be released on bail on the ground of default, the accused should
immediately move the superior court for appropriate direction. It need not be repeated
that the right accruing under proviso to Ss167 (2) of the code on the expiry of the
statutory period of sixty days cannot be said to have been availed of by mere making of
an application for bail expressing therein willingness to furnish bail, but on furnishing
bail bond as required under clause (a) (ii) of proviso read with Explanation I to S 167(2)
of the code. If because of any bona fide view or procedure adopted by the court
concerned some delay is caused and in the meantime challan is filed, the court has no
power to direct release under proviso to S 167(2) of the code128.

Police Custody means not only actual physical custody. Surveillance over the
movement of a suspect by police is also considered as custody129.

PROCEDURE FOR POLICE CUSTODY

The magistrate shall not grant remand to police custody unless they are satisfied that
there is good ground for doing so and shall not accept a general statement made by the
investigating or other police officer to the effect that the accused may be able to give
further information. A request for remand for police custody shall be accompanied by
an affidavit setting out briefly the prior history of the investigation and likelihood of
further clues which the police expect to derive by having the accused in custody,
sworn to by the investigating or other police officer, not below the rank of sub –

127
      CBI V. ANUPAM J KULKARNI 1992(3) SCC141.
128
    UDAY MOHANLAL ACHARYA V. STATE OF MAHARASHTRA [AIR 2001 SC 1910; 2001(5) SRJ 94; 2001(5) SCC 453;
2001 SCC (CRI) 760]
129
    State of A.P. vs. Gangula Ashok Sathyamurthy 1997 (1) SCC 272
inspector of police. Magistrates may decide after perusal of the affidavit, shall
personally see and satisfy themselves about the accused being sound in mind and
body before entrusting him to police custody and also at the end of the period of
custody by questioning him whether he had in any way been interfered with during the
period of custody [Rule 76(1) of Criminal Rules of Practice (Madras), relied on in
Chandayam Makki vs. State of Kerala 1980 Cr.L.J. 1195(1196)].

                                     Transfer of cases
APPLICATION FOR TRANSFER:

  It will be noticed that the ‘party interested’ has not been defined in Cr.P.C.
The words ‘party interested’ are of a wide import and, therefore, they have to be
given a wider meaning. Under Article – 139 of the Constitution, the transfer
can be if the Supreme court is satisfied on its own motion or an application
made by the Attorney General of India or by a party to any such case. Also if
the provisions of Chapter – XXIX Cr.P.C are looked at, it is seen that when the
legislation intended a ‘party to the proceedings’ to have a right of appeal it
specifically so stated. Failing in line with the above observations, we would find
that the defacto complainant would be a person interested in the case initiated
by him, reaching its just end and as such would be a person entitled to more
an application for transfer130.

CASES TRIED BY THE SAME JUDGE:

 One criminal case is pending before a district Munsif / Magistrate against the
accused and after another case against the complainant in another J.M court.
Contention that both the cases should be tried by one and same court to avoid
divergent judgments. Since complainant’s case is pending before court at
vadipatti, case before Magistrate’s court at Thanjavur ordered to be transferred
to file of court at vadipatti to be dealt with as per dictum laid by Apex court131.

                    INHERENT POWERS OF HIGH COURT:
Inherent powers of High Court under section. 482 Cr.P.C can be exercised in
following category of cases:
a. To give effect to an order under the code.
b. To prevent abuse of the process of court and
c. To otherwise secure the ends of justice132.

130
    (2011)1MLJ (Crl) 602
131
    2011 (1) MWN (Crl) 62 Mohammed Kasim vs. Mohammed Kalifullah [Rajasuria J]
132
    (2009) 6 SCC 351 – C.B.I vs. A.Ravishankar.
The rule of inherent powers has its source in the maxim “Quadolex aliquid
alicui concedit, concedere videtur id sine qua ipsa, ess uon protest” which
means that when the law gives anything to anyone, it gives also all those things
without which the thing itself could not exist133.
                                         CHARGE & DISCHARGE

CHARGE:
 S. 2(h) of the Code of Criminal Procedure explains ‘charge’ as follows:
  ‘Charge includes any head of charge when the charge contains more heads than
one’.
 The code does not define what a charge is? It is the precise formulation of the
Specific Accusation made against a person who is entitled to know its nature at the
earliest stage. A charge is not an accusation made or information gives in the abstract,
but an accusation made against a person in respect of an act committed or omitted in
violation of penal law forbidding or commanding it. In other words, it is formulated
after inquiry as distinguished from the popular meaning of the words as implying
inculpation of a person for an alleged offence as used in S.224 I.P.C. Chapter XVII of
the Code deals with ‘charge’. S-211 deals with contents of charge. The question of
having a trial before charges are framed does not arise134. Discharge of the accused
cannot be raised after Framing of Charges135. At the time of Framing of Charges the
court must consider only the prosecution materials and not the defence side136. In
cases where court frames charges, detailed order is not a must, only in case of
discharge such order is a must137. It is not illegal, that if a court framed charges
without complying S.207 Cr.P.C, and reasoning that the court is not empowered to
recall the charges already framed138.

ALTERATION OF CHARGES:
 S.216 Cr.P.C does not contemplate any application being filed either by the
prosecution or by any witness including the defacto complainant. It simply states the
power of the court to alter the charge or add any charge to the charge already framed.
The stage at which such alteration or addition to charge can be made is also indicated
therein. Such an alteration or addition can be made at any time before judgment is
pronounced. The section also provides for the follow up action to be taken in case the
alteration or addition to the charges is made after considerable progress in the trial of
the case139.

SCOPE OF DISCHARGE:

 A Magistrate is not to lose sight of the fact that ill considered and unmerited order
discharging an accused sometimes results in irreparable harm to the public interest,

133
    In Janta Dal vs. H.S.Chandhra & ors (1992) 4 SCC 305
134
    2011 (1) SCALE – manjith singh vs. CBI [P.Sathasivam & H.L.Dattu JJ]
135
    S.Balan vs. Inspector of Police 1998 (1) MWN (Crl) 75
136
    State of Orissa vs. Devendranath Padhi – 2005 SCC (Crl) 415 (Bench of 3 Judges).
137
    Munna Devi vs. State 2001 IV CCR 315 (SC)
138
    Barath Paraikh Vs. CBI – 2008 Cr.L.J 3540 (SC)
139
    (2011)1 MLJ (Crl) 392 – H.A.HurulFird house vs. State by Inspector.
whereas wrong trials initiated or wrong framing of charge may not only prejudice the
accused but, may also result in loss of faith of the public at large in Judicial
System140. Magistrate cannot order discharge of a person after he has been charged.
He must acquit the accused otherwise justified on the merits of the case 141. The
Magistrate has ample power to discharge the accused at any stage of proceedings 142.
In warrant case instituted otherwise than on police report an accused at inquiry stage
may be discharged u/s. 245 Cr.P.C. But if during trial of other accused persons the
court feels the discharged person might have committed the offence, the court may
again frame charge against him and try him143.

DETAILED DISCUSSION OF DISCHARGE:

S.167 (5) Cr.P.C is not to be treated with rigidity and it is not mandatory that on the
expiry of the period indicated there in the Magistrate should necessarily pass the order
of discharge of the accused144.

    a) DISCHARGE IN TRIAL OF WARRANT CASES ON POLICE REPORT:
Ss. 239 & 240 Cr.P.C deals with discharge and framing of charge against accused in
trial of the police challan Warrant cases by Magistrates. In S.239 is no way
contemplates that witnesses are to be examined before framing charge or before the
discharge of the accused persons. It only requires that all documents referred to in
S.173 Cr.P.C should be considered and that an opportunity should be given to the
prosecution and the accused of being heard. S.173 (5) enumerates the documents that
need to be furnished to the accused and these documents refer to those on which the
prosecution proposed to rely145. The Magistrate may, after examining these
documents, discharge the accused without recording the evidence of the witnesses.
The provision of the Section.239 Cr.P.C is similar to the provision of S.227 Cr.P.C,
except that under section.227, there is provision for the examination of the accused
also146.

Explaining       to the above: A combined reading of Ss.239 & 240 Cr.P.C makes it
abundantly clear that before a charge is framed a trial court is expected to consider
the materials placed before it to decide whether charges could be framed against the
accused147. S.228 Cr.P.C which deals with framing of the charge begins with the words
‘if, after such consideration’. Thus, these words in S.228 refer to the ‘consideration’
u/s. 227 Cr.P.C which has to be after taking into account the record of the case and
the document submitted therewith. These words provide an interconnection between
Ss.227 & 228148.


140
    1980 Cr.L.J 1270; AIR 1980 SC 1753.
141
    Harihar vs. State of W.B – AIR 1954 SC 265; reiterated in 1979 SCC (Crl) 405
142
    Cricket Association of Bengal vs. State of W.B – AIR 1971 SC 1925.
143
    Mohan Joginder vs. State of Punjab – AIR 1979 SC 339
144
    Nirmal Kanti Roy vs. State of W.B AIR 1998 SC 2327; (1998) 4 SCC 590.
145
    1958 Cr.L.J 1480; (1960) MLJ (CRL) 637.
146                                                       th
    Code of Criminal Procedure – Ramanatha Aiyar’s – 7 Edition - 2648
147
    R.Bala Krishna Pillai Vs. State 1996 Cr.L.J 707 (ker)
148
    (2011) 1 SCC (Crl) 785; (2011) 2 SCC 689 – R.S.Mishra Vs. State of Orissa & ors.
      b) TRIAL OF WARRANT CASES OTHERWISE THAN ON A POLICE REPORT:

  A bare reading of s.245 Cr.P.C itself makes us clear that the magistrate is bound to
hear both the sides after recording the evidences which prosecution rely upon u/s.244
Cr.P.C and if possible would warrant the framing of charge(s) against the accused. The
above procedure is only for the trial of warrant cases otherwise than on a police report
(i.e. private complaint if it is a warrant case).

 Please read the sub chapter head (B. – Cases instituted otherwise than on police
report) along with S.2(d) & 2(x) of the Code of Criminal Procedure.

The main difference between S.239 & S.245 is in the prior the magistrate can hear the
parties without taking any evidence. But in the latter the magistrate can hear the
parties only after taking the evidence. The intention of the legislation is very clear, in
the prior [s.239] it is complied with S.173 all the statements of the evidences were
already recorded by the police so it is enough to consider. But in the later [S.245]
there are no statement(s) of witnesses before the court to consider, so the court is
recording all the statement of evidences and proceed to hearing discharge submissions
of the parties.

Magistrate duty during Discharge:

  An application for discharge by an accused should not be rejected on technical
ground like wrong quotation of section in the application149. While considering a case
of discharge, the court should also examine if the alleged offence is barred by time, if it
is so, it is sufficient ground for discharge150. Hearing the accused includes considering
documents which may be filed by the accused151.

       XIII.    S.313 Examining the Accused [Questioning]
OBJECT AND THEORY OF EXAMINING THE ACCUSED:

The object of questioning an accused person by the court is to give him an
opportunity of explaining the circumstances that appear against him in the
evidence152. Supreme Court has clearly held that in this position the accused
person only can be examined and not his pleader on behalf of him153. The
accused cannot be subjected to cross-examination154.

PROCEDURAL UNDERSTANDING:

149
    Hari chandran v. State 1997 Cr.L.J 41 (MAD)
150
    Arun Vyas vs. Aita Vyas 1999 Cr.L.J 3479 (SC)
151
    Shri Satish Mehra vs. Delhi Administration, JT 1996 (7) SC 6
152
    Keki Bejonji Vs. State of Bombay; AIR 1961 SC 967;
153
    Bibhuti, AIR 1969 SC 381, 384 – Ratanlal & Dhirjlal.
154
    Shri Ram, AIR 1975 SC 175.
     An accused can be questioned u/s.313 Cr.P.C only for the purpose of
enabling him personally to explain any circumstance appearing in the evidence
against him. S.313 Cr.P.C is based on the fundamental principle of fairness.
The attention of the accused must specifically be brought to in-culpatory pieces
of evidence to give him an opportunity to offer an explanation if he chooses to
do so. This provision is mandatory in nature, therefore, the court is under a
legal obligation to put the incriminating circumstances. Circumstances which
were not put to the accused in his examination u/s.313 Cr.P.C cannot be used
against him and have to be excluded from consideration155. But an inadequate
examination cannot be presumed to have caused prejudice. Every error or
omission in compliance with the provision of S.313 Cr.P.C, does not necessarily
vitiate trial. Such errors fall within the category of curable irregularities and
the question as to whether the trial is vitiated, in each case depends upon the
degree of error and upon whether prejudice has been or is likely to have been
caused to the accused156. It would not be enough for the accused show that he
has not been questioned or examined on a particular circumstance, instead he
must show that such non-examination has actually and materially prejudiced
him and has resulted in the failure of justice157.

                                S.306 Grant of Pardon to an accused

State (Delhi Admin) vs. Jagjit Singh; 1990 SCC (Cri) 133; 1989 Supp (2) SCC 770.
[B.C.Ray & N.D. Ojha J.J] S.306 explained.

         Once an accused is granted pardon u/s.306 Cr.P.C, he ceases to be an accused
          and becomes a witness for the prosecution. So long as the prosecution does not
          certify that he has failed to do so he continues to be a witness and the
          prosecution is under obligation to examine him as a witness both in the
          committing court as well as in the trial court.
         The provisions of proviso to S.132 I.E.A clearly protect a witness from being
          prosecuted as the basis of the answers given by him in a criminal proceeding
          which tend to criminate him directly or indirectly. In view of this provision, the
          apprehension of the respondent that his evidence as approver will be used
          against him in the other four criminal cases where he figures as an accused is
          without any basis. On the other hand, he is absolutely protected from criminal
          prosecution on the basis of the evidence to be given by him when examined by
          the prosecution as an approver in the said case.

When pardon can be granted?




155
    (1984) 4 SCC 116; (1992) 3 SCC 700.
156
    (2004) 13 SCC 189; 2005 SCC (cri) 113
157
    (2011) 1 SCC (cri) 98
  A pardon may be tendered at any stage of the inquiry or trial158. There is nothing in
S.306 Cr.P.C to prevent a pardon being tendered to a person after a charge has been
framed against him. Under the amended act u/s.306 Cr.P.C. A Magistrate, duly
empowered may grant pardon at any stage of the investigation of the offence. All that
the section requires is that there should be an investigation regarding an offence
coming within the section.

 Who can tender pardon?
   Police officers have no right to grant pardon159. S.306 Cr.P.C empowers only a
Magistrate to tender pardon and has nothing to do with the powers of a Special Judge.
In a case Madras High court160 has held that during the pendency of Sessions trial,
after the case was committed, Chief Judicial Magistrate could grant pardon under this
provision, especially when Sessions Judge had forwarded papers to him. But
Subsequently Apex Court disagreeing with this principle said down that after the case
is committed by a Magistrate to Court of Session, he will have no powers to grant
pardon under this provision in that case161.

Theory of Granting of Pardon (can grant of pardon be withdrawn)[S.308 Cr.P.C]:

   Once an accomplice is granted pardon, he stands discharged as an accused and
becomes witness for the prosecution. As a necessary corollary once the pardon is
withdrawn or forfeited on the certificate given by the public prosecutor that such
person has filed to comply with the condition on which the tender was made he is
reverted to the position of an accused and liable to be tried separately and the
evidence given by him, if any, has to be ignored in toto and does not remain legal
evidence for consideration in the trial against the co-accused albeit such evidence may
be used against him in the separate trial of pardon. Neither Ss.114, 132, 133, 154 of
Indian Evidence Act nor Art-20(3) of the Indian Constitutional Law militates against
this position162.
                              RAREST OF RARE CASES:
  .75. Rarest of rare case comes when a convict would be a menace and threat to the
harmonious and peaceful co-existence of the society.

 .76. Life imprisonment is the rule and death penalty an exception. Therefore, the
court must satisfy itself that death penalty would be the only punishment which can
be meted out to a convict. The court has to consider whether any other punishment
would be completely inadequate and what would be the mitigating and aggravating
circumstances in the case163.

 “Although bride burning or bride hanging cases have become common in our
country, in our opinion, the expression “rarest of rare” as referred to in Bachan Singh
vs. State of Punjab AIR 1980 SC 898 does not mean that the act is uncommon, it

158
    1956 Cr.L.J 1134
159
    Shankar V. State of M.P 1997 Cr.L.J 3876 (M.P)
160
    In Re. Deivendran 1996 Cr.L.J 2209 (Mad)
161
    A.Deivendran V. State of Tamil Nadu 1998 Cr.L.J 814 (SC)
162
    2011 Cr.L.J (SC) 1 State of Maharashtra v. Abu salem Abdul Kayyam
163
    (2010)3 MLJ (crl) 702 (SC)
means that the act is brutal and barbaric. Bride killing is certainly barbaric. “The time
has come when we have to stamp out this evil from our society, with an iron hand”164.

RAREST OF RARE THEORY:
  When the words 'rarest of rare cases' are used after the words 'sparingly and with
circumspection' while describing the scope of section 482, those words merely
emphasize and reiterate what is intended to be conveyed by the words 'sparingly and
with circumspection'. They mean that the power under section 482 to quash
proceedings should not be used mechanically or routinely, but with care and caution,
only when a clear case for quashing is made out and failure to interfere would lead to
a miscarriage of justice. The expression "rarest of rare cases" is not used in the
sense in which it is used with reference to punishment for offences under
section 302 IPC, but to emphasize that the power under section 482 Cr.P.C. to
quash the FIR or criminal proceedings should be used sparingly and with
circumspection165. Judgments are not to be construed as statutes. Nor words or
phrases in judgments to be interpreted like provisions of a statute. Some words used
in a judgment should be read and understood contextually and are not intended to be
taken literally. Many a time a Judge uses a phrase or expression with the intention of
emphasizing a point or accentuating a principle or even by way of a flourish of writing
style. Ratio decidendi of a judgment is not to be discerned from a stray word or phrase
read in isolation.

                                              Double Jeopardy
CHAPTER XXIV - GENERAL PROVISIONS AS TO INQUIRIES AND TRIALS -
SEC–300 CR.P.C

 This section based on the Maxim ‘nemo debet bis vexari’, which means that a person
cannot be tried a second time for an offence which is involved in the offence with which
he was previously charged. This derived from the Article 20(2) of the Constitution of
India ‘no person shall be prosecuted and punished for the same offences more than
once’.
 In order to bar the trial of any person already tried, it must be shown
  1. That he has been tried by a competent court for the same offence or one for which
     he might have been charged or convicted at that trial, on the same facts,
  2. That he has been convicted or acquitted at the trial, and
  3. That such conviction or acquittal is in force166.

The general rule of double jeopardy is also provided in S.26 of the General
Clauses Act, 1897167. Furthermore, the fundamental right guaranteed U/A –


164
    2010(11) SCALE - SatyaNarayan Tiwari v. State of U.P - Markandeya Katju & Gyan Sundar Mirsa J.J
165
    R.P.Kapur v. State of Punjab, AIR 1960 SC 866, Stateof Uttar Pradesh v. R.K.Srivastava, 1989 (4) SCC 59; State of
Haryana v. Bhajan Lal 1992 Supp. (1) SCC 335, Mrs. Rupan Deol Bajaj v. Kanwar Pal Singh Gill, 1995 (6) SCC 194;
Pepsi Foods Ltd. V. Special Judicial Magistrate, 1998 (5) SCC 749; Zandu Pharmaceutical Works v. Mohd. Sharaful
Haque 2005 (1) SCC 122; Indian Oil Corporation v. NEPC India Ltd. 2006 (6) SCC 736, and Sonapareddy Maheedhar
v. State of Andhra Pradesh, 2007 (14) SCALE 321
166
    AIR 1965 SC 83
20(2) is in the nature of an injunction against the state prohibiting it to
prosecute and punish any person for the same offence more than once but the
initial burden is upon the accused to take the necessary plea and establish the
same168. The rule against double jeopardy is stated in the maxim ‘nemo debet
bis vexari pro una et eadam causa’. It is a significant basic rule of Criminal law
that no man shall be put in Jeopardy twice for one and the same offence. The
rule provides foundation for the pleas of ‘autrefois acquit’ and ‘autrefois
convict’. The manifestation of this rule is to be found contained in A-20 of the
General Clauses Act, 1897, S-300 Cr.P.C, 1973 and S 71 I.P.C169.

Trial proceedings (not discharge):

  The object of this section comes into operation only when the accused has been tried
(who has once been tried). To make it simple, the word ‘trial’ is totally different from
‘discharge’. If an accused is discharged there is no bar to try for the same offence in
another trial, but if he has been tried there is a bar under this section. To go intense,
the maxim ‘nemo debet bis vexari’ (a person cannot be tried a second time for an
offence which is involved in the offence with which he was previously charged), but to
follow English Doctrine ‘autrefois acquit or autrefois convict170’ is different. It is better
to explain with an example, the words ‘who has once been tried’ mean against whom
proceedings have been commenced in court, i.e. against whom the court has taken
cognizance of the offences and issued process (in complaint cases)171. Where on police
report the Magistrate had discharged the accused from the case against him, but on
reinvestigation the police filed a fresh charge-sheet against the accused the accused on
the same facts and offences, S.300 did not bar such proceedings172.

  There is a distinction between ‘acquittal’ and ‘discharge’. Discharge of the accused
does not amount to an acquittal. A person is said to be discharged when he is relieved
from legal proceedings by an order which does not amount to judgment. Here
judgment means which is the final order in a trial terminating in either conviction or
acquittal. An order of discharge is not a judgment.      If a complaint was filed and
dismissed for non prosecution and the accused was discharged, it was held in173 that
the second complaint is not barred but it would be subject to limitations.


167
    Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be
prosecuted and punished under either or any of those enactments. But shall not be liable to be punished twice for the same
offence.
168
       Monica bedi case: (2011) 1 SCC (cri) 22
169
      (2011) 1 SCC (Crl) 442; (2011) 1 SCC 534
170
    French word now part of English criminal law terminology. Refers to an accused who cannot be tried for a crime because the
record shows he has already been subjected to trial for the same conduct and was acquitted. If the accused maintains that the
previous trial resulted in conviction, he or she pleads "autrefois convict
[http://www.duhaime.org/LegalDictionary/A/AutrefoisAcquit.aspx].
171                                                                 th
    Ratanlal Dhirajlal – the Code of Criminal Procedure, 1973 – 17 edition reprint 2010 – lexis nexis –p. 568
172
      Namasivayam V. State of Madras, 1982 Cr.L.J 707
173
      AIR 1962 SC 876
Maintenance proceedings:
  In an Maintenance proceedings u/Ss. 125 & 126 Cr.P.C does not amount to an
acquittal of an offence, and a second application on the same facts is, therefore,
maintainable and not barred by this section174.

Same offence or same facts:
 If an accused has been convicted or acquitted in the first trial in an offence and that
particular conviction or acquittal is bar for the second trial if the offence is same. But if
the offence is different on some different facts, though based on the same evidence, the
previous trial does not bar a second trial.

In Monica Bedi vs. State of A.P 2010(11) SCALE 629 it is held as follows:
 .14. Art. 20(2) embody a protection against a second trial and conviction for the same
offence. The fundamental right guaranteed is the manifestation of a long struggle by
the mankind for human rights. The well known maxim ‘nemo delset bis vexari pro
eadem causa’ embodies the well established common law rule that no one should be
put on peril twice for the same offence.

Departmental proceedings:
 A decision in a criminal proceeding is not binding on departmental proceedings since
the sections and the charges in the departmental adjudication are entirely different to
the ones levelled before the criminal court175.


                                           DYING DECLERATION

Lakhan V. State of M.P (2010)III CCR 314 (SC).

Legal Maxim “Nemo moriturus praesumitus mentire” – meaning – A man will
not meet his maker with a lie in his mouth.

1993 SCC (crl)1; (1993)1 SCC 1
 S.302 I.P.C – Bride burning – conviction based on dying declaration – deceased
giving four dying declaration not one of which was before a judicial officer –
material inconsistencies between the four dying declaration – held, unable to
base conviction of mother-in-law solely on one of them – I.E.A. 32.

 Held “however, if inconsistencies are noticed between one dying declaration
and the other, the court has to examine the nature of the inconsistencies
namely whether they are material or not. In scrutinizing the contents of various
dying declarations, in such a situation, the court has to examine the same in
the light of the various surrounding facts and circumstances”.


174
      AIR 1963 All 143
175                                                          th
      Ratanlal Dhirajlal – The Code of Criminal Procedure- 17 edition – page. 573.
PRINCIPLES GOVERNING DYING DECLARATION:

 2010 (8) SCJ 35 Amit Kumar & another vs. State of Punjab. [Subashan Reddy
& Surinder Singh Nijjar J.J]

1. There is neither rules of law nor of prudence that dying declaration cannot
   be acted upon without corroboration [Munnu Raju v. State of M.P (1976) 3
   SCC 104].
2. If the court is satisfied that the dying declaration is true and voluntary it can
   base conviction on it, without corroboration (State of U.P v. Ram Sagar
   Yadav (1985)1 SCC 552; Ramawati Devi v. State of Bihar (1983) 1 SCC 211].
3. This court has to scrutinise the dying declaration carefully and must ensure
   that the declaration is not the result of tutoring, prompting or imagination.
   The deceased had opportunity to observe and identify the assailants and was
   in a fit state to make the declaration. [K.Ramachandra Reddy v. Public
   Prosecutor (1976) 3 SCC 618].
4. Where dying declaration is suspicious it should not be acted upon without
   corroborative evidence [Rasheed Beg v. State of M.P (1974) 4 SCC 426].
5. Where the deceased was unconscious and could never make any dying
   declaration the evidence with regard to it is to be rejected [Kake Singh v.
   State of M.P (1981) supp SCC 25].
6. A dying declaration which suffers from infirmity cannot form the basis of
   conviction [Ram Manorath v. State of U.P (1981) 2 SCC 654].
7. Merely because a dying declaration does not contain the details as to the
   occurrence, it is not to be rejected [State of Maharashtra v. Krishnamurthi
   Laxmipati Naidu (1980) supp SCC 455].
8. Equally, merely because it is a brief statement, it is not be discarded. On the
   contrary, the shortness of the statement itself guarantees truth[Surajdeo oza
   v. State of Bihar (1980) sup SCC 769].
9. Normally the court in order to satisfy whether deceased was in a fit mental
   condition to make the dying declaration look up to the medical opinion. But
   where the eye witness has said that the deceased was in a fit and conscious
   state to make this dying declaration, the medical opinion cannot prevail
   [Nanahau Ram v. State of M.P (1988) supp SCC 152].
10. Where the prosecution version differs from the version as given in the dying
   declaration, the said declaration cannot be acted upon[State of U.P v. Madan
   Mohan (1989) 3 SCC 396].

				
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