Apex Law Journal
Apex Law Journal
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Editor

Neha Goel, Advocate

Advisory Board

S.C. Khunger, Advocate

Rohit Bansal, Advocate

Varinder Singh Kanwar, Advocate

Hittan Nehra, Advocate

Judgments on Criminal Procedure Code, 1973

Thursday, March 20, 2014
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 313 — The accused has a duty to furnish an explanation in his statement under Section 313 Cr.P.C. regarding any incriminating material that has been produced against him — If the accused has been given the freedom to remain silent during the investigation as well as before the court, then the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313 Cr.P.C. is being recorded — However, in such an event, the court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with law.

 
Tuesday, July 30, 2013
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 357 — Payment of compensation by the offender — Extract from Oxford Handbook of Criminology (1994 Edn., p.1237-1238), which has been quoted with approval in Delhi Domestic Working Women's Forum v. Union of India and Ors. (1995) 1 SCC 14 stated.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 357 — Whether Courts have a duty to advert to the question of awarding compensation to the victim and record reasons while granting or refusing relief to them? — Held, yes — Section 357 Cr.P.C. confers a duty on the Court to apply its mind to the question of compensation in every criminal case — It necessarily follows that the Court must disclose that it has applied its mind to this question in every criminal case.

 
Saturday, July 20, 2013
Criminal Procedure Code, 1973

Criminal Procedure Code 1973 — Section 156(3) — Where a Magistrate orders investigation by the police before taking cognizance under Section 156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190 of the Code.

 
Criminal Procedure Code, 1973

Criminal Procedure Code 1973 — Section 203 — Dismissal of complaint — In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint.

 
Criminal Procedure Code, 1973

Criminal Procedure Code 1973 — Section 190 — Cognizance of offences by Magistrates — Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives: 

 

 (a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses. 

 

 (b) The Magistrate can postpone the issue of process and direct an enquiry by himself. 

 

 (c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.

 
Criminal Procedure Code, 1973

Criminal Procedure Code 1973 — Section 190(1)(a) r/w Section 156(3) — When a magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence — The magistrate has discretion in the matter — If on a reading of the complaint, he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence itself — As said earlier, in the case of a complaint regarding the commission of cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a) — However, if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to revert back to the pre-cognizance stage and avail of Section 156(3).  

 
Criminal Procedure Code, 1973

Criminal Procedure Code 1973 — Section 156(3) r/w Sections 190(1)(a) and 200 — Any judicial magistrate before taking cognizance of the offence can order investigation under Section 156(3) of the Code — If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein.

 
Criminal Procedure Code, 1973

Criminal Procedure Code 1973 — Section 156(3) r/w Section 190(1) — Sub-section (3) of Section 156 of the Code enables any Magistrate empowered under Section 190 may order such an investigation in terms of sub-section (1) of that section.

 
Criminal Procedure Code, 1973

Criminal Procedure Code 1973 — Section 156(3) — Whether the learned Magistrate is justified in directing the Police to investigate and submit a detailed report within one month under Section 156(3) of the Code? — Held, yes.

 
Thursday, May 02, 2013
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 161 — Evidence Act, 1872 — Section 32(1) — It is unsafe to base reliance on the statement made under Section 161 Cr.P.C. as dying declaration without any corroboration — Although corroboration as such is not essential but it is expedient to have the same, in order to strengthen the evidentiary value of declaration — In the present case, no reliance could be placed on the statement made by PW3 – Prem Chand under Section 161 Cr.P.C. before the police in the absence of any corroboration. Over and above, PW3 has himself turned hostile. 

 
Monday, January 28, 2013
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 2(d), 190(1)(a), 200, 203 and Explanation to Section 300 — Second complaint on same facts — Whether maintainable? — Held, the law does not prohibit filing or entertaining of the second complaint even on the same facts provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the complete facts could not be placed before the court or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour — However, second complaint would not be maintainable wherein the earlier complaint has been disposed of on full consideration of the case of the complainant on merit.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 468, 469 and 473 — Limitation in criminal cases — Section 468 Cr.P.C. places an embargo  upon  court  from  taking cognizance of an offence after the expiry  of  the  limitation  period provided therein — Section 469 prescribes when the period of limitation begins — Section 473 enables the court to condone delay, provided  that the  court  is  satisfied  with  the  explanation  furnished  by   the prosecution/complainant, and  where,  in  the  interests  of  justice, extension of the period of limitation is called for.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 468 and 473 — Limitation in criminal cases — The question of delay in launching a criminal prosecution may be a circumstance to be taken into consideration while arriving at a final decision, however, the same may not itself be a ground for dismissing the complaint at the threshold — Moreover, the issue of limitation must be examined in light of the gravity of the charge in question.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 468 and 473 — Limitation in criminal cases — The law of limitation prescribed under the Cr.P.C., must be observed, but in certain exceptional circumstances, taking into consideration the gravity of the charge, the Court may condone delay, recording reasons for the same, in the event that it is found necessary to condone such delay in the interest of justice.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 472 — Limitation in the case of continuing offence — Section 472 Cr.P.C. provides that in case of a continuing offence, a fresh period of limitation begins to run at every moment of the time period during which the offence continues — The expression, ‘continuing offence’ has not been defined in the Cr.P.C. because it is one of those expressions which does not have a fixed connotation, and therefore, the formula of universal application cannot be formulated in this respect.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 472 — Applicability of — Held, Section 472 of the Cr.P.C. will not be applicable in the case of instantaneous offence even though the damage resulting from the injury may itself continue.

 
Tuesday, January 22, 2013
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 378 — Interpretation of — Held, where in a case instituted on a complaint an order of acquittal is passed, whether the offence be bailable or non bailable, cognizable or noncognizable, the complainant can file an application under Section 378(4) for special leave to appeal against it in the High Court — So far as the State is concerned, as per Section 378(1)(b), it can in any case, that is even in a case instituted on a complaint, direct the Public Prosecutor to file an appeal to the High Court from an original or appellate order of acquittal passed by any court other than High Court — But there is an important inbuilt and categorical restriction on the State’s power — It cannot direct the Public Prosecutor to present an appeal from an order of acquittal passed by a Magistrate in respect of a cognizable and non-cognizable offence — In such a case the District Magistrate may under Section 378(1)(a) direct the Public Prosecutor to file an appeal to the Session Court.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 378(6) — If ‘special leave’ is not granted to the complainant to appeal against an order of acquittal the matter must end there — Neither the District Magistrate not the State Government can appeal against that order of acquittal.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 378(1)(a) & (b) — The State Government cannot direct the Public Prosecutor to file an appeal against an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence because of the categorical bar created by Section 378(1)(b) — Such appeals, that is appeals against orders of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence can only be filed in the Sessions Court at the instance of the Public Prosecutor as directed by the District Magistrate — Section 378(1)(b) uses the words “in any case” but leaves out orders of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence from the control of the State Government — Therefore, in all other cases where orders of acquittal are passed appeals can be filed by the Public Prosecutor as directed by the State Government to the High Court.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 378(4) and 378(5) — Complainant’s appeal against an order of acquittal is a category by itself — The complainant could be a private person or a public servant.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 378(1)(a) and 378(4) — Whether in a complaint case, an appeal from an order of acquittal of the Magistrate would lie to the Sessions Court under Section 378(1) (a) of the Code or to the High Court under Section 378(4) of the Code? — Held, a complainant can file an application for special leave to appeal against an order of acquittal of any kind only to the High Court — He cannot file such appeal in the Sessions Court.

 
Monday, January 14, 2013
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 154 — Indian Penal Code, 1860, Sections 306 and 498-A — Delay in lodging the F.I.R. — Six hours delay in lodging the F.I.R, held, cannot be taken against the prosecution — When a man looses his daughter due to cyanide poisoning, he is bound to break down — He would take time to recover from the shock — Six hours delay cannot make his case untrue — It is also not proper to expect him to give all minute details at that stage — The F.I.R. contains sufficient details — It is not expected to be a treatise.

 
Friday, December 07, 2012
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 203 — The dismissal of the complaint under Section 203 is without doubt a pre-issuance of process stage.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 401(2) — Expression “Prejudice” — Held, “Prejudice” is generally defined as meaning “to the harm, to the injury, to the disadvantage of someone” — It also means injury or loss.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 401(2) — Expression “in his own defence” — Held, the expression “in his own defence” comprehends, inter alia, for the purposes of Section 401(2), in defence of the order which is under challenge in revision before the Sessions Judge or the High Court.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 401(2) — Expression “other person” Meaning of — Held, the expression “other person” in the context of Section 401(2) means a person other than accused — It includes suspects or the persons alleged in the complaint to have been involved in an offence although they may not be termed as accused at a stage before issuance of process.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 202 and 204 — In the proceedings under Section 202 of the Code the accused/suspect is not entitled to be heard on the question whether the process should be issued against him or not — As a matter of law, upto the stage of issuance of process, the accused cannot claim any right of hearing.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 200, 202, 203 and 204 — Expression ‘taking cognizance’ — In the context of Sections 200, 202 and 203, the expression ‘taking cognizance’ has been used in the sense of taking notice of the complaint or the first information report or the information that offence has been committed on application of judicial mind — It does not necessarily mean issuance of process.  

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 202 — Object — Held, Section 202 of the Code has twin objects; one, to enable the Magistrate to scrutinize carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an unnecessary, frivolous or meritless complaint and the other, to find out whether there is some material to support the allegations made in the complaint. The Magistrate has a duty to elicit all facts having regard to the interest of an absent accused person and also to bring to book a person or persons against whom the allegations have been made. To find out the above, the Magistrate himself may hold an inquiry under Section 202 of the Code or direct an investigation to be made by a police officer. The dismissal of the complaint under Section 203 is without doubt a pre-issuance of process stage. The Code does not permit an accused person to intervene in the course of inquiry by the Magistrate under Section 202.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 397, 399 and 401 — Revision — The powers of revision are concurrent with the High Court and the Sessions Judge — By virtue of Section 399, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under subsection (1) of Section 401 and while doing so the provisions of sub- sections (2),(3),(4) and (5) of Section 401 apply to such power as far as possible.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 200, 202 and 203 — Expression ‘taking cognizance’ — Direction by the CJM to the Police Officer to investigate into the allegations made in the complaint amounts to taking cognizance of an offence — The submission of the learned counsel for the respondent no.1 that the CJM had not taken cognizance in the matter and the complaint was dismissed under Section 203 at the pre-cognizance stage has no substance and is rejected.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 401(2) and 399 r/w Section 203 — Whether a suspect is entitled to hearing by the revisional court in a revision preferred by the complainant challenging an order of the Magistrate dismissing the complaint under Section 203 of the Criminal Procedure Code, 1973? — Held, yes — In a revision petition preferred by complainant before the High Court or the Sessions Judge challenging an order of the Magistrate dismissing the complaint under Section 203 of the Code at the stage under Section 200 or after following the process contemplated under Section 202 of the Code, the accused or a person who is suspected to have committed crime is entitled to hearing by the revisional court — In other words, where complaint has been dismissed by the Magistrate under Section 203 of the Code, upon challenge to the legality of the said order being laid by the complainant in a revision petition before the High Court or the Sessions Judge, the persons who are arraigned as accused in the complaint have a right to be heard in such revision petition — This is a plain requirement of Section 401(2) of the Code — If the revisional court overturns the order of the Magistrate dismissing the complaint and the complaint is restored to the file of the Magistrate and it is sent back for fresh consideration, the persons who are alleged in the complaint to have committed crime have, however, no right to participate in the proceedings nor they are entitled to any hearing of any sort whatsoever by the Magistrate until the consideration of the matter by the Magistrate for issuance of process.

 
Tuesday, November 27, 2012
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 451 and 457 — Release of seized goods — The respondents/applicant failed to show any document which may show their ownership to the goods seized — Held, there was no justification for the High Court to issue directions for release of the goods seized merely because applicant could furnish the security — Such a course is not permissible.

 
Monday, November 26, 2012
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 235(2) — Indian Penal Code, 1860, Section 302 — Sentence of death penalty — The Court must make genuine effort to elicit any information either from the accused or the prosecution as to whether any circumstance exists which might influence the Court to avoid and not to award death sentence — Awarding death sentence is an exception, not the rule, and only in rarest of rare cases, the Court could award death sentence — The state of mind of a person awaiting death sentence and the state of mind of a person who has been awarded life sentence may not be the same mentally and psychologically — The court has got a duty and obligation to elicit relevant facts even if the accused has kept totally silent in such situations.  

 
Saturday, November 17, 2012
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 125 — Interim maintenance — In the application for grant of interim maintenance, wife had pleaded that the husband was a womaniser and drunkard — Held, this pleading was wholly unwarranted and, in fact, amounts to a deliberate assault on the character — Such uncalled for allegations are bound to create mental agony and anguish in the mind of the husband.

 
Monday, October 15, 2012
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 357(3), 421 and 431 — Indian Penal Code, 1860, Section 64 — Recovery of compensation directed to be paid by the court and power of court impose a sentence in default of payment of compensation — Held, for the purpose of mode of recovery, compensation is put on par with fine — Thus, if Section 421 of the Code puts compensation ordered to be paid by the court on par with fine so far as mode of recovery is concerned, then there is no reason why the court cannot impose a sentence in default of payment of compensation as it can be done in case of default in payment of fine under Section 64 of the IPC — The High Court, in the present case, was in error in setting aside the sentence imposed in default of payment of compensation under Section 357(3) Cr.P.C.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 357, 421 and 431 — Indian Penal Code, 1860, Section 64 — Power of court to award sentence in default of payment of compensation — Submission that the recourse can only be had to Section 421 of the Code for enforcing the order of compensation, held, not tenable — Order to pay compensation may be enforced by awarding sentence in default under Section 357(3) Cr.P.C.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 357, 421 and 431 — Indian Penal Code, 1860, Section 64 — Whether the court can award a sentence in default of payment of compensation under Section 357(3) Cr.P.C.? — Held, yes — The High Court, in the present case, was in error in setting aside the sentence imposed in default of payment of compensation.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 357(3) — Order to pay compensation — If a fine is not a part of the order of sentence, the court may order the accused to pay compensation to the person who has suffered any loss or injury because of the act of the accused for which he is sentenced.

 
Monday, July 02, 2012
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 438 — Indian Penal Code, 1860, Section 341/294/506 and 302 r/w Section 34 — When the Court of Session or the High Court in categorical terms has expressed the view that it is not inclined to grant anticipatory bail to the accused petitioners, then the Court of Session or the High Court, held, cannot pass an order that on surrendering of the accused before the Magistrate he shall be released on bail on such terms and conditions as the learned Magistrate may deem fit and proper or the superior court would impose conditions for grant of bail on such surrender.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 439(2) — If the order granting bail is perverse, the same can be set at naught by the superior court. 

 
Saturday, June 09, 2012
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 313 — Statement of accused under Section 313 Cr.P.C. — It is the duty of the accused to explain the incriminating circumstance proved against him while making a statement under Section 313 Cr.P.C. — Keeping silent and not furnishing any explanation for such circumstance is an additional link in the chain of circumstances to sustain the charges against him — Recovery of incriminating material at his disclosure statement duly proved is a very positive circumstance against him.

 
Thursday, May 03, 2012
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 311 — Decision in Mishrilal v. State of M.P., (2005) 10 SCC 701 did not interpret Section 311 Cr.P.C. defining the import, scope and ambit of the provision contained therein. 

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 311 and Section 391 — Evidence Act, 1872, Section 145 — Prayer for summoning the approver for further cross-examination on the ground that the approver (PW 1) in some other case has made a statement in jail in which he has retracted from his earlier statements incriminating himself and the other accused in the case — PW1 in the statement made in jail has said that his earlier statements were obtained by the CBI by subjecting him to great mental and physical torture — Held, it is obvious that one of the two statements of the approver (PW1) is false — But unlike Mishrilal or Hanuman Ram where the Court was able to sense without difficulty that the witnesses’ depositions before the Juvenile Court and the Children’s Court respectively were false, it is very difficult to say at this stage which of the statements is true and which of the statement was made under the influence, threat or coercion by the State officials or the CBI — The position may be clear in case he is subjected to further examination with reference to his statement made in jail. 

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 391 — Held, section 391 of the Cr.P.C. is not limited to recall of a witness for further cross-examination with reference to his previous statement — The Appellate Court may feel the necessity to take additional evidence for any number of reasons to arrive at the just decision in the case — The law casts a duty upon the court to arrive at the truth by all lawful means.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 391 and Section 311 — Recalling the prosecution witness for further examination on the ground that he has made inconsistent statement in some other case — Challenged by learned counsel for the CBI on the ground that the  statement which the PW is alleged to have made in jail has no legal sanctity and it came to be made and recorded in a manner completely unknown to law — Held, the learned counsel may be right but on that ground alone it would not be correct and proper to deny the application of Section 391 of the Cr.P.C. — If some later statement, has come to be made in some legal ways, it may be admissible on its own without any help from Section 311 or Section 391 of the Cr.P.C — It is only such statement or development which is otherwise not within the legal framework that would need the exercise of the Court’s jurisdiction to bring it before it as part of the legal record.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 311 — Application for summoning the prosecution witness for further cross-examination on the ground that the witness has given an inconsistent statement in some other case, held, can be allowed if the court is unable to sense which of the statement is true and which of the statement was made under the influence, threat or coercion — Mishrilal v. State of M.P., (2005) 10 SCC 701 and Hanuman Ram v. State of Rajasthan and others, (2008) 15 SCC 652 distinguished.

 
Saturday, March 31, 2012
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 438 — Constitution of India, 1950, Article 21 — Grant of anticipatory bail — Personal liberty is a precious fundamental right and it is with this background the court has to see that whether a case has been made out for grant of anticipatory bail. 

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 438 — Grant of anticipatory bail — While considering the claim of pre-arrest bail, the following factors have to be considered:

 

 (i) the nature and gravity of the accusation;

 

 (ii) the antecedents 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.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 190 r/w Sections 179, 181 and 182 — Indian Penal Code, 1860, Sections 403, 405, 415, 418, 420 & 423 r/w Sections 120B and 34 — Accused dishonestly/fraudulently/falsely denied the liability/responsibility under the agreement — Criminal complaint filed against the accused — Jurisdiction of the court — Held, the place where the agreement was executed, as well as, the places where different constituents of the agreement were carried out, are material factors to determine the relevant court(s) which would/could have jurisdiction in the matter — The place where the consequence of the criminal action (alleged in the complaint) ensues, may also be relevant for the said purpose — And finally, place(s) of receipt and dispatch of communications exchanged by the rival parties, revealing deception as an ingredient of cheating alleged by the complainant, can also be relevant to identify the court(s) having jurisdiction in the matter.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 179 — Phrases “anything which has been done” and “consequence which has ensued” — Held, both the phrases substantially enlarge and magnify the scope of jurisdiction contemplated under Section 179 so as to extend the same over areas contemplated by the two phrases.  

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 179 — Phrase “anything which has been done” — Complainant faithfully performed its obligations under the agreement/contract — The accused, however,dishonestly/fraudulently/falsely denied/avoided the reciprocal obligation(s) which they were obliged to perform thereunder — Held, the words “anything which has been done”, for the present controversy, would extend to anything which has been done in furtherance of the execution of the agreement — The facts constituting the performance of obligations by the complainant, actually constitute the foundational basis for the criminal accusation levelled against the accused (in refusing to honour the corresponding obligation) — The instant foundational basis for establishing the commission of the offence, held, would fall within the ambit of the words “anything which has been done” used in the aforesaid provision.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 179 r/w Section 190 — Accused dishonestly/fraudulently/falsely denied the liability/responsibility under the agreement — Criminal complaint filed against the accused — Jurisdiction of the court — The factum of supply of goods from Ghaziabad (in India) to Dubai (in the United Arab Emirates), as an essential component of the offence(s) allegedly committed by the accused, held, is relatable to the words “anything which has been done” used in Section 179 — This factual position, held, is sufficient to vest jurisdiction under Section 179 of the Code of Criminal Procedure, with a competent Court at Ghaziabad — Indian Penal Code, 1860, Sections 403, 405, 415, 418, 420 & 423 r/w Sections 120B and 34.  

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 179 — Jurisdiction of the court — Under Section 179 of the Code of Criminal Procedure, even the place(s) wherein the consequence (of the criminal act) “ensues”, would be relevant to determine the court of competent jurisdiction — Therefore, even the courts within whose local jurisdiction, the repercussion/effect of the criminal act occurs, would have jurisdiction in the matter.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 179 — Jurisdiction of the court — Words “consequence which has ensued” — Accused dishonestly/fraudulently/falsely denied the liability/responsibility under the agreement — Complainant holding the bill of exchange at Ghaziabad in India — Held, the denial of encashment of the bill of exchange would be deemed to “ensue” at Ghaziabad in India — The competent Court at Ghaziabad in India would have jurisdiction in the matter under Section 179 of the Code of Criminal Procedure.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 181(4) — Jurisdiction of the court — Bill of exchange issued by the accused was received, and is allegedly being held by the complainant at Ghaziabad in India — Held, the competent court at Ghaziabad in India, would have jurisdiction to hold the trial of the complaint under Section 181(4) of the Code of Criminal Procedure — Indian Penal Code, 1860, Sections 403, 405, 415, 418, 420 & 423 r/w Sections 120B and 34.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 182 — Jurisdiction of the court — Held, Section 182 can be invoked to determine jurisdiction in respect of a number of offences which include cheating as a component.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 182 — Jurisdiction of the court — When acts of fraud/dishonesty/deception, relatable to the offence(s), contemplated under Section 182 emerge from communications/messages/letters etc., the place(s) from where the communications/messages/letters etc. were sent, as also, the places at which the same were received, would be relevant to determine the court of competent jurisdiction.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 182 and Section 178(d) — In the present case,  the allegations contained in the complaint reveal, that the complainant-JCE Consultancy, addressed a legal notice dated 20.12.2004 to Samsung, Dubai, calling upon Samsung, Dubai, to honour its reciprocal commitment of the monetary payback contemplated under the agreement dated 1.12.2001 — In its response dated 21.12.2004, Samsung, Dubai, denied liability, by asserting that Samsung, Dubai, had no commitment/responsibility towards JCE Consultancy, under the bill of exchange dated 1.2.2002 — The aforesaid denial according to the complainant, constitutes the basis of the criminal complaint filed against the accused — The place at which the said response on behalf of Samsung, Dubai, was received, held, would be relevant to determine the Court of competent jurisdiction, under Section 182 of the Criminal Procedure Code — Even if the response was received by the counsel for JCE Consultancy in a place other than Ghaziabad (though in India), still the competent court at Ghaziabad in India, held, would be vested with jurisdiction, as under Section 178 (d) of the Code of Criminal Procedure, in cases where an offence consists of several acts carried out under different jurisdictions, a court having jurisdiction where any one of such acts was committed, will be competent to try the same.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 179 — Held, Section 179 of the Code of Criminal Procedure vests jurisdiction for inquiry and trial in a Court, within whose jurisdiction anything has been done with reference to an alleged crime, and also, where the consequence of the criminal action ensues.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 181(4) — Held, Section 181(4) of the Code of Criminal Procedure leaves no room for any doubt, that culpability is relatable even to the place at which consideration is required to be returned or accounted for.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 182 — Held, Section 182 of the Code of Criminal Procedure postulates that for offences of which cheating is a component, if the alleged act of deception is shown to have been committed, through communications/letters/messages, the court within whose jurisdiction the said communications/letters/messages were sent (were received), would be competent to inquire into and try the same.

 
Monday, March 12, 2012
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 406 — Transfer of “criminal proceedings” — Inconvenience cannot be a valid basis for transfer of “criminal proceedings” from one court to another under Section 406 of the Code of Criminal Procedure — Bhairu Ram v. Central Bureau of Investigation, (2010) 7 SCC 799 and Jyoti Mishra v. Dhananjaya Mishra, (2010) 8 SCC 803 relied.

 
Wednesday, February 22, 2012
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 357 — Indian Penal Code, 1860, Sections 323 & 325 — The provision is wide enough to cover a case like the present where the appellant has been found guilty of offences punishable under Sections 323 & 325 of the IPC.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 357 — Held, Section 357 of the Code of Criminal Procedure embodies the concept of compensating the victim of a crime and empowers the courts to award a suitable amount — This power, it goes without saying, shall be exercised by the Courts having regard to the nature of the injury or loss suffered by the victim as also the paying capacity of the accused.

 
Tuesday, February 21, 2012
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 320 — Compounding of an offence — Held, compounding can only be possible at the instance of the person who is either a complainant or who has been injured or is aggrieved — Sub-sections 4(a) and 4(b) of Section 320 also reiterate the same principle that in case of compounding, the person competent to compound, must be represented in a manner known to law — If the person compounding is a minor or an idiot or a lunatic, the person competent to contract on his behalf may, with the permission of the Court, compound the offence.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 320(4)(b) — Civil Procedure Code, 1908, Section 2(11) — Compounding of an offence by legal representatives of the deceased — Held, when a person who is otherwise competent to compound an offence is dead, his legal representatives, as defined under the Code of Civil Procedure may, with the consent of the Court, compound such offence.

 
Criminal Procedure Code, 1973

Criminal Procedure, Code, 1973 — Section 4 — Section 4 sub-section (1) deals with offences under the Indian Penal Code — Section 4 sub-section (2) deals with offences under any other law which would obviously include offences under the N.I. Act.

 
Criminal Procedure Code, 1973

Criminal Procedure, Code, 1973 — Section 320 — A perusal of Section 320 makes it clear that the provisions contained in Section 320 and the various sub-sections is a Code by itself relating to compounding of offence — It provides for the various parameters and procedures and guidelines in the matter of compounding.

 
Tuesday, February 14, 2012
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 190, 193 and 204 — Cognizance of offence by the court — At the time of taking cognizance of the offence, the Court is required to consider the averments made in the complaint or the charge sheet filed under Section 173 — It is not open for the Court to analyse the evidence produced at that stage and come to the conclusion that no prima facie case is made out for proceeding further in the matter — However, before issuing the process, it is open to the Court to record the evidence and on consideration of the averments made in the complaint and the evidence thus adduced, find out whether an offence has been made out — On finding that such an offence has been made out the Court may direct the issue of process to the respondent and take further steps in the matter — If it is a charge-sheet filed under Section 173 CrPC, the facts stated by the prosecution in the charge-sheet, on the basis of the evidence collected during investigation, would disclose the offence for which cognizance would be taken by the Court — Thus, it is not the province of the Court at that stage to embark upon and shift the evidence to come to the conclusion whether or not an offence has been made out.

 
Tuesday, January 24, 2012
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 195(1) — East Punjab Urban Rent Restriction Act, 1949, Section 13 — Rent Controller is not a Court within the meaning of Section 195(1) Cr.P.C. — However, a private complaint would be maintainable in respect of statements alleged to have been falsely made before it.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 340 — East Punjab Urban Rent Restriction Act, 1949, Section 13 — Complaint under Section 340 Cr.P.C. by Rent Controller — Whether maintainable? — Held, though the Rent Controller discharges quasi-judicial functions, he is not a Court, as understood in the conventional sense and he cannot, therefore, make a complaint under Section 340 Cr.P.C. — Consequently, as rightly held by the High Court, a complaint could be made by a private party in the proceedings.

 
Saturday, December 10, 2011
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 482 and 320 — Indian Penal Code, 1860, Section 394 — Prayer for quashing of criminal proceedings — Dismissed by the High Court on the ground that the offences with which the appellants stand charged, are not ‘personal in nature’ so as to justify quashing the pending criminal proceedings on the basis of a compromise arrived at between the first informant-complainant and the appellants — The incident in question had its genesis in a dispute relating to the access to the two plots which are adjacent to each other — It was not a case of broad day light robbery for gain — It was a case which has its origin in the civil dispute between the parties, which dispute has, it appears, been resolved by them — That being so, continuance of the prosecution where the complainant is not ready to support the allegations which are now described by her as arising out of some “misunderstanding and misconception” will be a futile exercise that will serve no purpose — It is noteworthy that the two alleged eye witnesses, who are closely related to the complainant, are also no longer supportive of the prosecution version — The continuance of the proceedings is thus nothing but an empty formality — Section 482 Cr.P.C. could, in such circumstances, be justifiably invoked by the High Court to prevent abuse of the process of law and thereby preventing a wasteful exercise by the Courts below — Appeal allowed — Impugned order passed by the High Court set aside — Criminal Proceedings in question quashed.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 482 and 320 — Power of High Court to quash prosecution in cases where the offences with which the accused stand charged are non-compoundable — Held, the High Court may quash the prosecution even in cases where the offences with which the accused stand charged are non-compoundable — However, it is obligatory for the High Court to exercise the power under section 482 Cr.P.C. with utmost care and caution — The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 320 and 482 — There is a subtle distinction between compounding of offences by the parties before the trial Court or in appeal on one hand and the exercise of power by the High Court to quash the prosecution under Section 482 Cr.P.C. on the other — While a Court trying an accused or hearing an appeal against conviction, may not be competent to permit compounding of an offence based on a settlement arrived at between the parties in cases where the offences are not compoundable under Section 320, the High Court may quash the prosecution even in cases where the offences with which the accused stand charged are non-compoundable — The inherent powers of the High Court under Section 482 Cr.P.C. are not for that purpose controlled by Section 320 Cr.P.C.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 320(2) and 482 — Nothing contained in Section 320(2) can limit or affect the exercise of inherent power of the High Court if interference by the High Court was considered necessary for the parties to secure the ends of justice — B.S Joshi and Ors. v. State of Haryana, (2003) 4 SCC 675 and Madhu Limaye v. The State of Maharashtra, (1977) 4 SC 551 relied.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 482 and 320 — Simply because an offence is not compoundable under Section 320 IPC is by itself no reason for the High Court to refuse exercise of its power under Section 482 Cr.P.C.

 
Wednesday, December 07, 2011
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 320 — Offences which are not compoundable under Section 320 of the Cr.P.C. cannot be allowed to be compounded even if there is any settlement between the complainant on the one hand and the accused on the other. 

 
Tuesday, December 06, 2011
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — Negotiable Instruments Act, 1881, Section 138 — The appellant, in the present case, has established that she had resigned from the Company as a Director in 1998, well before the relevant date, namely, in the year 2004, when the cheques were issued — Held, the High Court, in the light of the acceptable materials such as certified copy of annual return dated 30.09.1999 and Form 32 ought to have exercised its jurisdiction under Section 482 and quashed the criminal proceedings — We are unable to accept the reasoning of the High Court and we are satisfied that the appellant has made out a case for quashing the criminal proceedings. Consequently, the criminal complaint No. 993/1 of 2005 on the file of ACMM, New Delhi, insofar as the appellant herein (A3) is quashed and the appeal is allowed.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — Whether it is incumbent on the High Court  to look into those document/documents which have a bearing on the matter even at the initial stage and grant relief to the person concerned by exercising jurisdiction under Section 482 of the Code? — Held, though it is not proper for the High Court to consider the defence of the accused or conduct a roving enquiry in respect of merit of the accusation, but if on the face of the document which is beyond suspicion or doubt placed by the accused and if it is considered the accusation against her cannot stand, in such a matter, in order to prevent injustice or abuse of process, it is incumbent on the High Court to look into those document/documents which have a bearing on the matter even at the initial stage and grant relief to the person concerned by exercising jurisdiction under Section 482 of the Code.

 
Monday, December 05, 2011
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 386(e) — Whether the High Court in exercise of its power under Section 386(e) Cr.P.C. is competent to enhance the sentence suo motu? — Held, yes — However, such a course is permissible only after giving opportunity of hearing to the accused.  

 
Tuesday, November 22, 2011
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 357(3) — Compensation — Once the sentence consists of only fine, the power under Section 357(3) could not be invoked for directing payment of compensation.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 357(3) — Compensation — Held, only where the sentence does not include fine but only imprisonment and the court finds that the person who has suffered any loss or injury by reason of the act of the accused person, requires to be compensated, it is permitted to award compensation under section 357(3).

 
Monday, October 31, 2011
Criminal Procedure Code, 1973

 Criminal Procedure Code, 1973 — Section 306 — The object of Section 306 of the Code of Criminal Procedure, 1973, held, is to allow pardon in cases where heinous offence is alleged to have been committed by several persons so that with the aid of the evidence of the person granted pardon, the offence may be brought home to the rest. 

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 306 — This Section empowers the Chief Judicial Magistrate or a Metropolitan Magistrate to tender a pardon to a person supposed to have been directly or indirectly concerned in or privy to an offence to which the section applies, at any stage of the investigation or inquiry or trial of the offence on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence. 

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 306 — Under Section 306 of the Code, the Magistrate of the First Class is also empowered to tender pardon to an accomplice at any stage of inquiry or trial but not at the stage of investigation on condition of his making full and true disclosure of the entire circumstances within his knowledge relative to the crime.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 307 — Held, Section 307 of the Code vests the Court to which the commitment is made, with power to tender a pardon to an accomplice. 

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 306 and 307 r/w Section 308 — Protection given to accomplice u/s 306 or 307 of the Cr.P.C., when can be lifted? — An accomplice who has been granted pardon under Section 306 or 307 of the Code gets protection from prosecution — When he is called as a witness for the prosecution, he must comply with the condition of making a full and true disclosure of the whole of the circumstances within his knowledge concerning the offence and to every other person concerned, whether as principal or abettor, in the commission thereof and if he suppresses anything material and essential within his knowledge concerning the commission of crime or fails or refuses to comply with the condition on which the tender was made and the Public Prosecutor gives his certificate under Section 308 of the Code to that effect, the protection given to him can be lifted.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 306(4) — Held, Section 306 (4) makes it clear that the person accepting a tender of pardon should be examined as a witness first in the Court of Magistrate and subsequently in the trial Court.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 306 — Once an accused is granted pardon under Section 306, he ceases to be an accused and becomes witness for the prosecution.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 307 — FIR registered on 31.08.2000 — During the recording of evidence, on 16.06.2004, PW-6 originally charged as accused No. 12 filed an application praying for grant of ‘pardon’ and to treat him as an ‘approver’ which was granted by the trial Court — Submission of the learned counsel for the apellants that as PW-6 waited for four years to change his mind and sought pardon for his action, his statement is not reliable and the courts below ought to have rejected his testimony — Held, under Section 307 of the Code pardon can be tendered at any time after commitment of a case but before the judgment is pronounced — In view of the same, inasmuch as the approver submitted his application well before the judgment was delivered, i.e., on 19.04.2005, the contention regarding delay on the part of PW-6 is liable to be rejected.

 
Tuesday, October 18, 2011
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — Charge sheet filed by the State police on completion of investigation — High Court not monitoring any investigation — Whether direction by the High Court at this stage directing the CBI to investigate the case is justified? — Held, yes — In order to secure the ends of justice, the High Court can direct the CBI to investigate the case — Nirmal Singh Kahlon v. State of Punjab & Others [(2009) 1 SCC 441] relied.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 r/w Section 173(8) — Whether High Court has power to order fresh investigation or re-investigation even where the charge sheet or challan has been filed by the police under sub-section (2) Section 173? — Held, yes — The language of sub-section (8) of Section 173 of the Cr.P.C., therefore, cannot limit or affect the inherent powers of the High Court to pass an order under Section 482 of the Cr.P.C. for fresh investigation or re-investigation if the High Court is satisfied that such fresh investigation or re-investigation is necessary to secure the ends of justice.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 173(8), 173(2) r/w Section 482 — Whether police has power to conduct fresh investigation or re-investigation where the charge sheet or challan has been filed by the police under sub-section (2) Section 173? — Held, no — However, the High Court has inherent power to pass an order under Section 482 of the Cr.P.C. for fresh investigation or re-investigation if the High Court is satisfied that such fresh investigation or re-investigation is necessary to secure the ends of justice.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 160 — Held, Section 160 of Cr.P.C. deals with the procedure to be adopted by Police Officer at prearrest stage.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 167(2) — Default bail — Right with regard to default bail is lost once charge sheet is filed.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 167(2) — The learned Magistrate cannot remand an accused to custody for a period of more than 90 days in total.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 167(2) — Default bail — Charge sheet filed within 90 days from the first order of remand — Appellant-accused not entitled to default bail.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 167(2) — The right under Section 167(2) of Cr.P.C. to be released on bail on default if charge sheet is not filed within 90 days from the date of first remand is not an absolute or indefeasible right — The said right would be lost if charge sheet is filed and would not survive after the filing of the charge sheet — In other words, even if an application for bail is filed on the ground that charge sheet was not filed within 90 days, but before the consideration of the same and before being released on bail, if charge sheet is filed, the said right to be released on bail would be lost — After the filing of the charge sheet, if the accused is to be released on bail, it can be only on merits. 

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 167(2) — Default bail — When an application for default bail is filed, the merits of the matter are not to be gone into.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 167(2) — The relevant date of counting 90 days for filing charge sheet is the date of first order of the remand and not the date of arrest.

 
Sunday, September 18, 2011
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 326 — Held, Section 326 is an exception to the rule that only a person who has heard the evidence in the case is competent to decide whether the accused is innocent or guilty. 

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 326 — The rule mentioned in Section 326 is that second Magistrate need not re-hear the whole case and he can start from the stage the first Magistrate left it.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 264 — Held, section 264 mentions that in every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of evidence and a judgment containing a brief statement of the reasons for the finding — Thus the Magistrate is not expected to record full evidence which he would have been, otherwise required to record in a regular trial and his judgment should also contain a brief statement of the reasons for the finding and not elaborate reasons which otherwise he would have been required to record in regular trials.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 326(1) — Under Section 326 (1), successor Magistrate can act on the evidence recorded by his predecessor either in whole or in part — If he is of the opinion that any further examination is required, he may recall that witness and examine him, but there is no need of re-trial.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 326(3) — The prohibition contained in sub Section (3) of Section 326 of the Code is absolute and admits of no exception.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 326(3) read with Sections 326(1) and 326(2) — Provisions of Section 326(1) and 326(2) of the new Code are not applicable to summary trial — Therefore, except in regard to those cases which fall within the ambit of Section 326 of the Code, the Magistrate cannot proceed with the trial placing reliance on the evidence recorded by his predecessor — He has got to try the case de novo.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 326(3) read with Sections 461 and 465 — When a case is tried as a summary case a Magistrate, who succeeds the Magistrate who had recorded the part or whole of the evidence, cannot act on the evidence so recorded by his predecessor — But if does so then section 461 will apply — Section 465 in such a case cannot be called in aid to make what was incompetent, competent.

 
Saturday, September 17, 2011
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 215 and 464 — In the instant case the omission of charge of Section 302 has not in any way misled the accused inasmuch as it is made very clear that in the charge that he agreed with the others to commit the murder of the deceased.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 211(2) — Charge specifically under section 302 not framed — However, in the charge it has been clearly mentioned that the accused-appellant has committed the murder of the deceased — Held, by mentioning that the accused has committed the murder of the deceased all the ingredients of the charge have been mentioned and the requirement of Section 211, sub-section (2) has been complied with.  

 
Sunday, August 28, 2011
Criminal Procedure Code, 1973


Criminal Procedure Code, 1973 — Section 319 — The legal position that can be culled out from the material provisions of Section 319 of the Code and the decided cases of Supreme Court is this :

 

 (i) The Court can exercise the power conferred on it under Section 319 of the Code suo motu or on an application by someone.

 

 (ii) The power conferred under Section 319(1) applies to all courts including the Sessions Court.

 

 (iii) The phrase “any person not being the accused” occurring in Section 319 does not exclude from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in Column 2 of the charge-sheet. In other words, the said expression covers any person who is not being tried already by the court and would include person or persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the court.

 

 (iv) The power to proceed against any person, not being the accused before the court, must be exercised only where there appears during inquiry or trial sufficient evidence indicating his involvement in the offence as an accused and not otherwise. The word ‘evidence’ in Section 319 contemplates the evidence of witnesses given in court in the inquiry or trial. The court cannot add persons as accused on the basis of materials available in the chargesheet or the case diary but must be based on the evidence adduced before it. In other words, the court must be satisfied that a case for addition of persons as accused, not being the accused before it, has been made out on the additional evidence let in before it.

 

 (v) The power conferred upon the court is although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence. A mere doubt about involvement of the other person on the basis of the evidence let in before the court is not enough. The Court must also be satisfied that circumstances justify and warrant that other person be tried with the already arraigned accused.

 

 (vi) The court while exercising its power under Section 319 of the Code must keep in view full conspectus of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then.

 

 (vii) Regard must also be had by the court to the constraints imposed in Section 319 (4) that proceedings in respect of newly – added persons shall be commenced afresh from the beginning of the trial.

 

 (viii) The court must, therefore, appropriately consider the above aspects and then exercise its judicial discretion.

 
Friday, August 26, 2011
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 155(4) — Where the case involves one cognizable offence also alongwith non-cognizable offences it should not be treated as a non- cognizable case for the purpose of sub-section 2 of Section 155 and that is the intention of legislation which is manifested in Section 155(4) of the Code of Criminal Procedure.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973  — Section 198(1)(c) — Aggrieved person — The woman with whom second marriage is contracted by suppressing the fact of former marriage is an aggrieved person — Complaint by her under Sections 494 and 495 maintainable — Indian Penal Code, 1860, Sections 494 and 495.

 
Friday, July 29, 2011
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 154 — It is obligatory for the police to register a case when the facts constituting a cognizable offence are brought to its notice.

 
Thursday, June 30, 2011
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — Indian Penal Code, 1860, Sections 120B, 420, 409, 468 and 471 — Merely because the Company and its directors had repaid the loan to the bank they could not be exonerated of the offences committed by forging/fabricating the documents with the intention of defrauding the bank as well as the exchequer — Petition under section 482 of the Cr.P.C. praying for quashing of chargesheet rightly dismissed by the High Court.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — Held, Section 482 of the Cr.P.C. itself envisages three circumstances under which the inherent jurisdiction may be exercised by the High Court, namely: (i) to give effect to an order under the Cr.P.C.; (ii) to prevent an abuse of the process of Court; and (iii) to otherwise secure the ends of justice.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — It is trite that although the power possessed by the High Court under the said provision is very wide but it is not unbridled — It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the Court exists.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — It is neither feasible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — Exercise of inherent powers would depend on the facts and circumstances of each case — Court would be justified in invoking its inherent jurisdiction where the allegations made in the Complaint or Chargesheet, as the case may be, taken at their face value and accepted in their entirety do not constitute the offence alleged.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — Dispute between the parties, having overtones of a civil dispute — Whether criminal proceeedings should be quashed? — Held, Nikhil Merchant Vs. Central Bureau of Investigation & Anr. (2008) 9 SCC 677 does not hold as an absolute proposition of law that whenever a dispute between the parties, having overtones of a civil dispute with criminal facets is settled between them, continuance of criminal proceedings would be an exercise in futility and, therefore, should be quashed.

 
Tuesday, June 28, 2011
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 154 — Motor Vehicles Act, 1988, Sections 140 and 166 — Motor Accident — Delay in lodging FIR — Effect — Held, mere delay in lodging FIR cannot be a ground to doubt the claimant case — Claim case cannot be dsimissed in this ground.      

 
Sunday, June 26, 2011
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 174 — The inquest report cannot be treated as substantive evidence but may be utilised for contradicting the witnesses of inquest — Evidence Act, 1872, Sections 3 and 145.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 174 — Inquest report — The whole purpose of preparing an inquest report under Section 174 Cr.P.C.  is to investigate into and draw up a report of the apparent cause of death, describing such wounds as may be found on the body of the deceased and stating as in what manner, or by what weapon or instrument such wounds appear to have been inflicted.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 174 — Inquest report — For the purpose of holding the inquest it is neither necessary nor obligatory on the part of the Investigating Officer to investigate into or ascertain who were the persons responsible for the death — The object of the proceedings under Section 174 Cr.PC is merely to ascertain whether a person died under suspicious circumstances or met with an unnatural death and, if so, what was its apparent cause — The question regarding the details of how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of such proceedings i.e. the inquest report is not the statement of any person wherein all the names of the persons accused must be mentioned.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 174 — Omissions in the inquest report are not sufficient to put the prosecution out of court.  

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 174 — Inquest report — The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or by some machinery etc. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 174 — Discrepancy, overwriting, omission or contradiction in the inquest report — Even where, the attention of the author of the inquest is drawn to the alleged discrepancy, overwriting, omission or contradiction in the inquest report and the author in his deposition has also admitted that through a mistake he omitted to mention the crime number in the inquest report, this Court has held that just because the author of the report had not been diligent did not mean that reliable and clinching evidence adduced by the eyewitnesses should be discarded by the Court — Dr. Krishna Pal & Anr. v. State of Uttar Pradesh, (1996) 7 SCC 194 relied.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 174 — Omission or discrepancy in the inquest report — It cannot be held that any omission or discrepancy in the inquest is fatal to the prosecution’s case and such omissions would necessarily lead to the inference that FIR is ante-timed.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 174 — Defect in the preparation of the inquest report — Any defect in the preparation of the inquest report by the investigating officer cannot lead to an inference that the FIR was not registered at the alleged time.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 154 and 161 — Courts attach great importance to the prompt lodging of FIR and prompt interrogation of a witness under Section 161 Cr.P.C. as the same substantially eliminates the chances of embellishment and concoction creeping into the account contained therein.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 154 — FIR — Mere fact that the parentage of the accused was not mentioned in the FIR but was mentioned in the general diary, held, can not lead to an inference that the FIR was prepared subsequently — Sone Lal & Ors. v. State of U.P. AIR 1978 SC 1142 relied.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 174 — Delay in sending report to the Magistrate — Defence did not put any questions to the IO as to why there was a delay of 5 days in sending the special report — Held, IO was not required to furnish any explanation on this issue.

 
Thursday, June 16, 2011
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 439 — Bail — The accused, in the present case, is alleged to have committed a heinous crime of killing an old helpless lady by strangulation — He was seen coming out of the victim’s house by a neighbour around the time of the alleged occurrence, giving rise to a reasonable belief that he had committed the murder — Held, under the given circumstances, it was not the stage at which bail under Section 439 of the Code should have been granted to the accused, more so, when even charges have not yet been framed.

 
Tuesday, May 24, 2011
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 173(2), 173(8) and 190(1)(b) — Police report — Held, the report under sub-section (2) of Section 173 after the initial investigation as well as the further report under sub-section (8) of Section 173 after further investigation constitute “police report” and have to be forwarded to the Magistrate empowered to take cognizance of the offence.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — Inherent power cannot be exercised in regard to matters specifically covered by the other provisions of the Code.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 190(1)(b), 173(2) and 173(8) — Cognizance of offence by Magistrate upon a police report — Where the police report forwarded to the Magistrate under Section 173 (2) of the Cr.P.C. states that a person has committed an offence, but after investigation the further report under Section 173 (8) of the Cr.P.C. states that the person has not committed the offence, it is for the Magistrate to apply judicial mind to the facts stated in the reports submitted under sub-sections (2) and (8) respectively of Section 173, Cr.P.C., and to form an opinion whether to take cognizance or not to take cognizance after considering the objections, if any, of the complainant — Abhinandan Jha & Ors. v. Dinesh Mishra [AIR 1968 SC 117] and Mrs. Rupan Deol Bajaj & Anr. v. Kanwar Pal Singh Gill & Anr. [AIR 1996 SC 309] relied.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 and Section 190(1)(b) — Where the Magistrate has not applied his mind under Section 190 of the Cr.P.C. to the merits of the reports filed under Section 173 Cr.P.C. and passed order, the High Court ought not to consider a request for quashing the proceedings.

 
Monday, May 23, 2011
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 162(1) and Proviso to Section 162(1) — Evidence Act, 1872, Section 145 — Statement to the police — No doubt a statement to the police is ordinarily not admissible in evidence in view of Section 162(1) Cr.PC, but as mentioned in the proviso to Section 162(1) Cr.PC it can be used to contradict the testimony of a witness.

 
Wednesday, May 11, 2011
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 154 — FIR — There is no need to register another FIR when in respect of the same offence an FIR had already been registered — Once an FIR had been registered lawfully and investigation had been conducted leading to filing of charge sheet before the competent court of law for the trial of accused persons, absolutely, there is no justifiable reason for the Division Bench to direct re-registration of the same by lodging another FIR after three years and proceed with the investigation which had already been concluded by the CBI — The Division Bench of the High Court has failed to note that the fresh investigation into the same allegation would be a futile exercise and no purpose would be served by investigating the case afresh, more particularly, when there is no adverse comment on the investigation carried out by the CBI — The de novo investigation by lodging another FIR would result in delay of justice since the Division Bench has ordered to conduct the same investigation under the same sections started three years back by the same agency, namely, the CBI — For all these reasons, we are unable to sustain the reasonings of the Division Bench for a fresh investigation by the CBI.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 174 and 154 — In the case on hand, as per the post mortem report dated 22.09.2007, the cause of death of Rizwanur Rahman was due to the effect of ten injuries on the body and which were anti mortem in nature — In such circumstances, the proceedings under Section 174 of the Code were not permissible beyond 22.09.2007 and registration of an FIR was natural outcome to ascertain whether the death was homicidal or suicidal.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 173(2) — Delhi Police Establishment Act, 1946 — Investigationm conducted by the CBI — The provisions under Chapter XII of the Code would apply to such investigation — The police referred to in the Chapter, for the purpose of investigation, would apply to the officer/officers of the Delhi Police Establishment Act — On completion of the investigation, the report has to be filed by the CBI in the manner provided in Section 173(2) of the Code  [Vide Hemant Dhasmana vs. Central Bureau of Investigation and Another, (2001) 7 SCC 536].

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 173 — When the final report is laid after conclusion of the investigation, the Court has the power to consider the same and issue notice to the complainant to be heard in case the conclusions in the final report are not in concurrence with the allegations made by them.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 154 — Information in cognizable cases — Officer-in-charge of the police station, to whom the information is supplied orally has a statutory duty to reduce it to writing and get the signature of the informant — He shall enter the substance of the information, whether given in writing or reduced to writing as aforesaid, in a book prescribed by the State in that behalf — The officer-incharge has no escape from doing so if the offence mentioned therein is a cognizable offence and whether or not such offence was committed within the limits of that police station.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 2(h) — Investigation — Held, investigation commences with lodgment of information relating to the commission of an offence.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 2(h) — Investigation — The Code contemplates the following steps to be carried out during investigation: (1) Proceeding to the spot; (2) ascertainment of the facts and circumstances of the case; (3) discovery and arrest of the suspected offender; (4) collection of evidence relating to the commission of the offence which may consist of — (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial; and (5) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and, if so, to take necessary steps for the same by the filing of a charge-sheet under Section 173 [Vide H.N. Rishbud & Anr. v. State of Delhi, AIR 1955 SC 196, State of M.P. v. Mubarak Ali, AIR 1959 SC 707 and Navinchandra N. Majithia vs. State of Meghalaya and Ors., (2000) 8 SCC 323)].

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 155(1) — When the offence is non-cognizable, the officer-in-charge of the police station has no obligation to record it if the offence was not committed within the limits of his police station.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 174 and 175 — The inquiry/investigation under Section 174 read with Section 175 of the Code may continue till the outcome of the cause of the death — Depending upon the cause of death, police has to either close the matter or register an FIR.

 
Thursday, March 31, 2011
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 154 — FIR — Whether ante-timed? — Though the timing is slightly irregular, that alone would not be sufficient to reach a conclusion that the FIR was ante-timed.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 161 — Statement under Section 161 of the Cr.P.C. recorded after three days — Held, statement cannot be said to be unreliable as there was utter confusion in the investigation at the initial stage.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 313 — Omission in putting certain questions to the accused — Effect thereof — Held, the broad principle is that all incriminating material circumstances must be put to an accused while recording his statement under Section 313 of the Code, but if any material circumstance has been left out that would not ipso facto result in the exclusion of that evidence from consideration unless it could further be shown by the accused that prejudice and miscarriage of justice had been sustained by him.

 
Tuesday, March 15, 2011
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 391 — Object — The primary object of the provisions of Section 391 Cr.P.C. is the prevention of a guilty man’s escape through some careless or ignorant action on part of the prosecution before the court or for vindication of an innocent person wrongfully accused, where the court omitted to record the circumstances essential to elucidation of truth — Generally, it should be invoked when formal proof for the prosecution is necessary.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 391 — Civil Procedure Code, 1908, Order 41, Rule 27 — Held, Section 391 is akin to Order 41, Rule 27 of the C.P.C. — Rambhau & Anr. v. State of Maharashtra, AIR 2001 SC 2120 relied.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 391 — The provisions of Section 391 Cr.P.C. cannot be pressed into service in order to fill up lacunae in the prosecution’s case.

 
Thursday, March 10, 2011
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — Indian Penal Code, 1860, Section 306 — Despite the fact that there was absolutely no material on record to proceed against the appellants either for cruelty or dowry harassment, the High Court rejected the petition filed by the appellants under Section 482 of the Cr.P.C. for quashing the charges under Section 306 I.P.C. against them — Held, the High Court was not justified in rejecting the petition filed by the appellants under Section 482 of the Cr.P.C. for quashing the charges under Section 306 I.P.C. against them — The High Court ought to have quashed the proceedings so that the appellants who were not remotely connected with the offence under Section 306 I.P.C. should not have been compelled to face the rigmaroles of a criminal trial — Appeal allowed — Judgment of the High Court set aside — The charges under Section 306 I.P.C. against the appellants are quashed.

 
Saturday, February 26, 2011
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 362 — Held, Section 362 cannot be considered in a rigid and over technical manner to defeat the ends of justice.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 362 — Application moved for recall of the Order alleging that the case was shown in the computer list and not in the main list of the High Court, and hence, the learned Counsel for the Revisionist had not noted the case and hence he did not appear — Held, it often happens that sometimes a case is not noted by the Counsel or his clerk in the cause list, and hence, the Counsel does not appear — This is a human mistake and can happen to anyone — High Court did not erred in law in  recalling the Order — Section 362 cannot be considered in a rigid and over technical manner to defeat the ends of justice.

 
Tuesday, February 08, 2011
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 300(1) — Constitution of India, 1950, Article 20(2) — Difference between section 300(1) and Article 20(2) — Held, Section 300(1) of Cr.P.C. is wider than Article 20(2) of the Constitution — While, Article 20(2) of the Constitution only states that ‘no one can be prosecuted and punished for the same offence more than once’, Section 300(1) of Cr.P.C. states that no one can be tried and convicted for the same offence or even for a different offence but on the same facts.

 
Thursday, February 03, 2011
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 154 — Accused-not named in the FIR — Held, in case the informant fails to name a particular accused in the FIR, and the said accused is named at the earliest opportunity, when the statements of witnesses are recorded, it cannot tilt the balance in favour of the accused.

 
Saturday, January 22, 2011
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — The inherent powers of the High Court under Section 482 of the Code have to be exercised sparingly with circumspection, and in rare cases to correct patent illegalities or to prevent miscarriage of justice.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 205 — The satisfaction whether or not an accused deserves to be exempted from personal attendance has to be of the Magistrate, who is the master of the court in so far as the progress of the trial is concerned and none else.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 205 — While considering an application under Section 205 of the Code, the Magistrate has to bear in mind the nature of the case as also the conduct of the person summoned — He shall examine whether any useful purpose would be served by requiring the personal attendance of the accused or whether the progress of the trial is likely to be hampered on account of his absence.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 313(1)(b) and Proviso to Section 313(1) r/w Section 205 — Dispensation with the personal examination of an accused — Held, in a summons case, when the personal appearance of the accused has been dispensed with under Section 205 of the Code, a discretion is vested in the Magistrate to dispense with the rigour of personal examination of the accused under Section 313 of the Code as well.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 205 — Discretion of the Magistrate under Section 205 of the Code, held, cannot be circumscribed by the High Court by laying down any general directions in that behalf — Manoj Narain Agrawal Vs. Shashi Agrawal & Ors. (2009) 6 SCC 385 relied — Constitution of India, Article 227 — Criminal Procedure Code, 1973,Section 482.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 313(1)(b) and Proviso to Section 313(1) r/w Section 205 — Dispensation with the personal examination of an accused who is already exempted from personally appearing in the court, held, is within the trial court’s discretion — This discretion has to be exercised keeping in view certain parameters, enumerated in the case of Basavaraj R. Patil & Ors. Vs. State of Karnataka & Ors. (2000) 8 SCC 740 and not as a matter of course.

 
Saturday, January 15, 2011
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 125 — Code of Criminal Procedure (Amendment) Act, 2001 — Maintenance — Fixation of upper limit — Held, after the amendment to Section 125 Cr.P.C., which is a Central Act, by the Code of Criminal Procedure (Amendment) Act, 2001 which deleted the words “not exceeding five hundred rupees in the whole”, all State amendments to Section 125 Cr.P.C. by which a ceiling has been fixed to the amount of maintenance to be awarded to the wife have become invalid.  

 
Thursday, January 13, 2011
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 311 — Evidence Act, 1872, Section 165 — Judges have to take participatory role in the trial — They are not expected to act like a mere tape recorder to record whatever has been stated by the witnesses.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 311 — Evidence Act, 1872, Section 165 — Held, Section 311 of the Code and Section 165 of the Evidence Act confers vast and wide powers on Court to elicit all necessary materials by playing an active role in the evidence collecting process.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 406 — Transfer petition — Held, there must be reasonable apprehension on the part of the party to a case that justice may not be done — Mere allegation that there is apprehension that justice will not be done cannot be the basis for transfer.

 
Saturday, January 08, 2011
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — The power vested in the High Court under Section 482 Cr.P.C. can be invoked for quashing an on-going investigation, complaint or other proceedings only in cases where either there is legal power to the continuance of the proceedings such as the absence of a sanction wherever required or where averments made in the complaint or first information report even if accepted on their face value do not constitute an offence or where there is no legal evidence to support the charge made against the accused.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 398 — Matter remanded back to the Magistrate for further inquiry — Magistrate recalling the witnesses and examining them afresh — Effect thereof — Held, the Magistrate may have gone beyond what was legally necessary to do but that is no reason to hold that the recording of evidence by the Magistrate as a part of the further enquiry directed by the High Court would vitiate the proceedings before him or the conclusion drawn on the basis of any such enquiry — So long as the Magistrate was satisfied that a prima facie case had been made out, he was competent to issue summons to the accused — Appeal dismissed.

 
Saturday, January 01, 2011
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 161 r/w Explanation to Section 162 — If a significant omission is made in the statement of a witness recorded under Section 161 of the Cr.P.C., the same may amount to a contradiction and that whether it so amounts is a question of fact in each case.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 161 r/w Explanation to Section 162 — Witnesses in their statements under Section 161, Cr.P.C., omitted to state the oral dying declarations made to them by the deceased — Also when confronted could give no explanation for the omission — Held, omission made by these witnesses is a glaring omission, and, therfore, their statement cannot be relied on — Appeal allowed — Conviction of the appellant set aside.

 
Sunday, December 12, 2010
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 438 — Anticipatory bail — Exercise of jurisdiction under section 438 of Cr.P.C. is extremely important judicial function of a judge and must be entrusted to judicial officers with some experience and good track record — Both individual and society have vital interest in orders passed by the courts in anticipatory bail applications.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 438 — Anticipatory bail — Constitution of India, 1950 — Article 21 — Personal Liberty — In case, the State consider the following suggestions in proper perspective then perhaps it may not be necessary to curtail the personal liberty of the accused in a routine manner — These suggestions are only illustrative and not exhaustive. 

 

 1) Direct the accused to join investigation and only when the accused does not cooperate with the investigating agency, then only the accused be arrested. 

 

2) Seize either the passport or such other related documents, such as, the title deeds of properties or the Fixed Deposit Receipts/Share Certificates of the accused. 

 

 3) Direct the accused to execute bonds; 

 

 4) The accused may be directed to furnish sureties of number of persons which according to the prosecution are necessary in view of the facts of the particular case. 

 

5) The accused be directed to furnish undertaking that he would not visit the place where the witnesses reside so that the possibility of tampering of evidence or otherwise influencing the course of justice can be avoided. 

 

6) Bank accounts be frozen for small duration during investigation.
 

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 438 — Grant of anticipatory bail — Held, the proper course of action ought to be that after evaluating the averments and accusation available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the public prosecutor — After hearing the public prosecutor the court may either reject the bail application or confirm the initial order of granting bail — The court would certainly be entitled to impose conditions for the grant of bail — The public prosecutor or complainant would be at liberty to move the same court for cancellation or modifying the conditions of bail any time if liberty granted by the court is misused — The bail granted by the court should ordinarily be continued till the trial of the case.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 438 — Anticipatory bail — One ought not to make a bugbear of the power to grant anticipatory bail.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 438 — Anticipatory bail — The Constitution Bench in Sibbia’s case [(1980) 2 SCC 565] has observed that “We do not see why the provisions of Section 438 Cr.P.C. should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable.”

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 438 — Anticipatory bail — It is a matter of common knowledge that a large number of undertrials are languishing in jail for a long time even for allegedly committing very minor offences — This is because section 438 Cr.P.C. has not been allowed its full play.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 438 — Anticipatory bail — 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.? — Held, the Constitution Bench in Sibbia’s case [(1980) 2 SCC 565]  has clearly observed that there is no justification for reading into section 438 Cr.P.C. and the limitations mentioned in section 437 Cr.P.C — The Court further observed that the plentitude of the section must be given its full play.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 438 — Anticipatory bail — Accused need not make out a “special case” for the exercise of the power to grant anticipatory bail — Gurbaksh Singh Sibbia and Others v. State of Punjab (1980) 2 SCC 565 relied.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 438 — Anticipatory bail — It is clear from the Statement of Objects and Reasons that the purpose of incorporating Section 438 in the Cr.P.C. was to recognize the importance of personal liberty and freedom in a free and democratic country — When we carefully analyze this section, the wisdom of the legislature becomes quite evident and clear that the legislature was keen to ensure respect for the personal liberty and also pressed in service the age-old principle that an individual is presumed to be innocent till he is found guilty by the court — Constitution of India, 1950,
Article 21.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 438 — Anticipatory bail — Held, the concept of anticipatory bail is that a person who apprehends his arrest in a non-bailable case can apply for grant of bail to the Court of Sessions or to the High Court before the arrest.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 438 — Anticipatory bail — Judgments and orders in the cases of Salauddin Abdulsamad Shaikh v. State of Maharashtra (1996) 1 SCC 667, K. L. Verma v. State and Another (1998) 9 SCC 348, Adri Dharan Das v. State of West Bengal (2005) 4 SCC 303, Sunita Devi v. State of Bihar and Another (2005) 1 SCC 608 and Naresh Kumar Yadav v. Ravindra Kumar (2008) 1 SCC 632, held, are clearly contrary to the legislative intention and the law declared by the Constitution Bench’s in Sibbia’s case [(1980) 2 SCC 565] — Further, held, since these judgments and orders have ignored a Constitution Bench judgment of this court in Sibbia’s case, therefore, these judgments and orders are per incuriam also — Constitution of India, 1950, Article 141.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 438 — Anticipatory bail — The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: 

 

 i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; 

 

 ii. The antecedents of the applicant including the fact as to whether the accused 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; 

 

iv. The possibility of the accused’s likelihood to repeat similar or the other offences. 

 

v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. 

 

vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. 

 

vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; 

 

viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; 

 

ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; 

 

x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 438 — Anticipatory bail — Grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case — No attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 438 — Anticipatory bail — The courts should not impose restrictions on the ambit and scope of section 438 Cr.P.C. which are not envisaged by the Legislature — The court cannot rewrite the provision of the statute in the garb of interpreting it.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 438 — Anticipatory bail — Restrictions imposed by the Apex Court in the case of Salauddin Abdulsamad Shaikh v. State of Maharashtra (1996) 1 SCC 667 , namely, that the accused released on anticipatory bail must submit himself to custody and only thereafter can apply for regular bail, held, is contrary to the basic intention and spirit of section 438 Cr.P.C — It is also contrary to Article 21 of the Constitution and the law laid down by the Constitution Bench in Sibbia’s case [(1980) 2 SCC 565] — Constitution of India, 1950, Article 21.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 438 — Anticipatory bail — The order granting anticipatory bail for a limited duration and thereafter directing the accused to surrender and apply before a regular bail is contrary to the legislative intention and the judgment of the Constitution Bench in Sibbia’s case [(1980) 2 SCC 565].

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 438 — Anticipatory bail — Once the anticipatory bail is granted then the protection should ordinarily be available till the end of the trial unless the interim protection by way of the grant of anticipatory bail is curtailed when the anticipatory bail granted by the court is cancelled by the court on finding fresh material or circumstances or on the ground of abuse of the indulgence by the accused.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 438 — Anticipatory bail — In cases where the court is of the considered view that the accused has joined investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 438 — Anticipatory bail — Section 438, held, is not extraordinary in the sense that it should be invoked only in exceptional or rare cases — Some courts of smaller strength have erroneously observed that section 438 Cr.P.C. should be invoked only in exceptional or rare cases — Those orders are contrary to the law laid down by the judgment of the Constitution Bench in Sibbia’s case [(1980) 2 SCC 565]. 

 
Thursday, December 09, 2010
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 313 — Trial Court should be extremely careful about the questions to be put to the accused persons in examination under Section 313 Cr.P.C. — Record must show that meticulous care is taken to put all the incriminating circumstances to the accused.

 
Friday, December 03, 2010
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 406(2) — Application for transfer of trial — If a criminal trial is not free and fair, the criminal justice system would undoubtedly be at stake, eroding the confidence of a common man in the system, which would not augur well for the society at large — Therefore, as and when it is shown that the public confidence in the fairness of a particular trial is likely to be seriously undermined, for any reason whatsoever, Section 406 of the Cr.P.C. empowers this Court to transfer any case or appeal from one High Court to another High Court or from one criminal court subordinate to one High Court to another criminal court of equal or superior jurisdiction subordinate to another High Court, to meet the ends of justice — It is, however, the trite law that power under Section 406 of the Cr.P.C. has to be construed strictly and is to be exercised sparingly and with great circumspection — It needs little emphasis that a prayer for transfer should be allowed only when there is a well-substantiated apprehension that justice will not be dispensed impartially, objectively and without any bias — In the absence of any material demonstrating such apprehension, this Court will not entertain application for transfer of a trial, as any transfer of trial from one State to another implicitly reflects upon the credibility of not only the entire State judiciary but also the prosecuting agency, which would include the public prosecutors as well.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 406(2) — Delhi Special Police Establishment Act, 1946, Section 6 — Application for transfer of trial — Once a notification has been issued by a State Government under Section 6 of the DSPE Act, transferring the investigation to the CBI, the CBI, held, assumes the role of an investigating agency and is also invested with the role of the prosecuting agency in relation to that particular case, and therefore, it is entitled to move an application under Section 406(2) of the Cr.P.C..

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 406(2) — Application for transfer of trial — Plea that the Court of Special Judge, CBI, Ghaziabad is already heavily over-burdened, held, is not a ground for transfer of trial — If at all the said Court is over burdened, it will be open to the High Court to request the State Government to create another Court of a Special Judge at Ghaziabad.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 406, sub-sections (2) and (3) — Transfer of trial — An order of transfer of trial is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about the proper conduct of a trial — This power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial — Some of the broad factors which could be kept in mind while considering an application for transfer of the trial are:- 

 

 (i) when it appears that the State machinery or prosecution is acting hand in glove with the accused, and there is likelihood of miscarriage of justice due to the lackadaisical attitude of the prosecution; 

 

 (ii) when there is material to show that the accused may influence the prosecution witnesses or cause physical harm to the complainant; 

 

 (iii) comparative inconvenience and hardships likely to be caused to the accused, the complainant/the prosecution and the witnesses, besides the burden to be borne by the State Exchequer in making payment of travelling and other expenses of the official and non-official witnesses; 

 

(iv) a communally surcharged atmosphere, indicating some proof of inability of holding fair and impartial trial because of the accusations made and the nature of the crime committed by the accused; and 

 

 (v) existence of some material from which it can be inferred that the some persons are so hostile that they are interfering or are likely to interfere either directly or indirectly with the course of justice.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 406(2) — Delhi Special Police Establishment Act, 1946, Section 6 — Application for transfer of trial — State Government, in the present case, issued a notification under Section 6 of the DSPE Act, transferring the case to the CBI — CBI moved an application under Section 406(2) of the Cr.P.C. for transfer of the case — Held, CBI is an interested party for the purposes of Section 406(2) of the Cr.P.C. and is, therefore, entitled to move an application under Section 406(2) of the Cr.P.C.

 
Thursday, December 02, 2010
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 154 and 161 — In case, the complainant in the FIR or the witness in his statement under section 161 Cr.P.C., has not disclosed certain facts but meets the prosecution case first time before the court, such version lacks credence and is liable to be discarded.

 
Tuesday, November 16, 2010
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — Inherent power of the High Court — It is well settled that though the inherent powers of the High Court under Section 482 of the Code are very wide in amplitude, yet they are not unlimited. However, it is neither feasible nor desirable to lay down an absolute rule which would govern the exercise of inherent jurisdiction of the Court. Nevertheless, it is trite that powers under the said provision have to be exercised sparingly and with caution to secure the ends of justice and to prevent the abuse of the process of the Court.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — Where the allegations in the first information report or the complaint taken at its face value and accepted in their entirety do not constitute the offence alleged, the High Court would, held, be justified in invoking its powers under Section 482 of the Code to quash the criminal proceedings.

 
Saturday, November 06, 2010
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 157 — Held, Section 157 of the Code says that if, from the information received or otherwise an officer incharge of a police station has reason to suspect the commission of an offence which he is empowered to investigate, he shall forthwith send a report of the same to the Magistrate concerned and proceed in person to the spot to investigate the facts and circumstances of the case, if he does not send a report to the Magistrate, that does not mean that his proceedings to the spot, is not for investigation — In order to bring such proceedings within the ambit of investigation, it is not necessary that a formal registration of the case should have been made before proceeding to the spot — It is enough that he has some information to afford him reason even to suspect the commission of a cognizable offence — Any step taken by him pursuant to such information, towards detention etc., of the said offence, would be part of investigation under the Code.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 174 and 175 — The provisions of Sections 174 and 175 afford a complete Code in itself for the purpose of inquiries in cases of accidental or suspicious deaths.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 175 and 174 — Held, Section 175 Cr. P.C. provides that a Police Officer proceedings under Section 174 may, by an order in writing, summon two or more persons for the purpose of the said investigation.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 174 — Inquest Report — Inquest Report cannot be treated as substantive evidence but may be utilized for contradicting the witnesses of the Inquest.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 154, 157 and 174 — When an officer incharge of Police Station receives information that a person had committed suicide or has been killed or died under suspicious circumstances, he shall inform the matter to the nearest Magistrate to hold Inquest — A criminal case is registered on the basis of information and investigation is commenced under Section 157 of Cr.P.C. and the information is recorded under Section 154 of Cr.P.C. and, thereafter, the inquest is held under Section 174 Cr.P.C.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 174 — The contents of the inquest report cannot be termed as evidence, but they can be looked into to test the veracity of the witnesses.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 174 — Inquest report and post mortem report cannot be termed to be substantive evidence and any discrepancy occurring therein can neither be termed to be fatal nor even a suspicious circumstance which would warrant a benefit to the accused and the resultant dismissal of the prosecution case.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 174 — Inquest Report — Mention of the name of the accused and eye witness in the inquest report is not necessary — Due to non-mentioning of the name of the accused in the inquest report, it cannot be inferred that FIR was not in existence at the time of inquest proceedings.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 174 — Inquest Report — Held, is not a substantive evidence.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 174 — Inquest Report — The purpose of preparing the inquest report is for making a note in regard to identification marks of the accused.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 174 — Inquest Report — The names of the assailants and the manner of assault are not required to be mentioned in the inquest report.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 174 — Inquest Proceedings — Object of — Held, the object of the inquest proceedings is merely to ascertain whether a person has died in suspicious circumstances or an unnatural death and if so, what is the apparent cause of the death — The question regarding details as to how the deceased was assaulted or who assaulted him or under what circumstances, he was assaulted is foreign to the ambit and scope proceeding under Section 174.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 154 readwith Section 174 — Contention of the learned counsel that since FIR is lodged after inquest was held, the FIR is not reliable — Held, this submission of the learned counsel is a general proposition and may not be true in all cases and all circumstances — This general proposition cannot be universally applied, by holding that if the FIR is lodged for whatever reason after recording the inquest report the same would be fatal to all the proceedings arising out of the Indian Penal Code.

 
Thursday, October 28, 2010
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 125 — Criminal Procedure Code, 1898, Section 488 — In Captain Ramesh Chander Kaushal v. Veena Kaushal and Ors. [AIR 1978 SC 1807], this Court held that Section 125 is a reincarnation of Section 488 of the Cr.P.C. of 1898 except for the fact that parents have also been brought into the category of persons entitled for maintenance — It observed that this provision is a measure of social justice specially enacted to protect, and inhibit neglect of women, children, old and infirm and falls within the constitutional sweep of Article 15(3) reinforced by Article 39 — Constitution of India, 1950, Articles 15(3) and 39.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 125 — Term ‘wife’ — Interpretation of — This Court is of the opinion that a broad and expansive interpretation should be given to the term ‘wife’ to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a pre-condition for maintenance under Section 125 of the Cr.P.C, so as to fulfill the true spirit and essence of the beneficial provision of maintenance under Section 125.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 125 — Protection of Women from Domestic Violence Act, 2005, Section 26 — Maintainability of claim petition under Section 125 of the Cr.P.C. in cases of live-in relationships — Whether a man and woman living together for a long time, even without a valid marriage, would raise as in the present case, a presumption of a valid marriage entitling such a woman to maintenance — Held, yes — If monetary relief and compensation can be awarded in cases of live-in relationships under the Act of 2005, they should also be allowed in a proceedings under Section 125 of Cr.P.C. — It seems to us that the same view is confirmed by Section 26 of the said Act of 2005 — However, sitting in a two-Judge Bench, this Court, cannot take a view contrary to the views expressed in the two cases i.e. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav & another, AIR 1988 SC 644 and Savitaben Somabhat Bhatiya v. State of Gujarat and others, AIR 2005 SC 1809 — Therefore, this Court requests the Hon’ble Chief Justice to refer the following, amongst other, questions to be decided by a larger Bench — According to us, the questions are: 

 

 1. Whether the living together of a man and woman as husband and wife for a considerable period of time would raise the presumption of a valid marriage between them and whether such a presumption would entitle the woman to maintenance under Section 125 Cr.P.C? 

 

 2.  Whether strict proof of marriage is essential for a claim of maintenance under Section 125 Cr.P.C. having regard to the provisions of Domestic Violence Act, 2005? 

 

 3. Whether a marriage performed according to customary rites and ceremonies, without strictly fulfilling the requisites of Section 7(1) of the Hindu Marriage Act, 1955, or any other personal law would entitle the woman to maintenance under Section 125 Cr.P.C.?

 
Monday, October 25, 2010
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 125 — Delay in filing petition under Section 125 — Held, creates some doubt about the case — Therefore, it is the duty of the complainant to satisfactorily explain why there was delay in filing the petition under Section 125 Cr.P.C.

 
Monday, October 11, 2010
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 227 and 228 — The Judge concerned has to consider all the records of the case, the documents placed, hear the submission of the accused and the prosecution and if there is “not sufficient ground” (Emphasis supplied) for proceeding against the accused, he shall discharge the accused by recording reasons — If after such consideration and hearing, as mentioned in Section 227, if the Judge is of the opinion that “there is ground for presuming” (Emphasis supplied)that the accused has committed an offence, he is free to direct the accused to appear and try the offence in accordance with the procedure after framing charge in writing against the accused.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 227 — Discharge — It is clear that at the initial stage, if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the court to say that there is no sufficient ground for proceeding against the accused — The presumption of the guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not — If the evidence which the prosecution proposes to adduce prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 209 and 227 — A Magistrate enquiring into a case under Section 209 of the Cr.P.C. is not to act as a mere Post Office and has to come to a conclusion whether the case before him is fit for commitment of the accused to the Court of Session — He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment, and not whether there is sufficient evidence for conviction — If there is no prima facie evidence or the evidence is totally unworthy of credit, it is the duty of the Magistrate to discharge the accused, on the other hand, if there is some evidence on which the conviction may reasonably be based, he must commit the case.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 227 — Discharge — In exercising jurisdiction under Section 227 of Cr.P.C., the Magistrate should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 227 and 228 — Exercise of jurisdiction under Sections 227 & 228 of Cr.P.C. — On consideration of the authorities about the scope of Section 227 and 228 of the Code, the following principles emerge:-

 

(i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.

 

ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial.

 

iii) The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

 

iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.

 

v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.

 

vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

 

vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 228 and 227 — At the stage of framing of charge under Section 228 of the Cr.P.C. or while considering the discharge petition filed under Section 227, it is not for the Magistrate or a Judge concerned to analyse all the materials including pros and cons, reliability or acceptability etc. — It is at the trial, the Judge concerned has to appreciate their evidentiary value, credibility or otherwise of the statement, veracity of various documents and free to take a decision one way or the other.  

 
Friday, October 08, 2010
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 215, 216, 218, 221 and 464 — Unless the accused is able to establish that the defect(s) in framing the charge(s) has caused real prejudice to him; that he was not informed as to what was the real case against him; or that he could not defend himself properly, no interference is required on mere technicalities.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 215, 216, 218, 221 and 464 — Absence of a charge — Held, the absence of a charge under one or the other or the various heads of criminal liability for the offence cannot be said to be by itself prejudicial to the accused, and before a conviction for the substantive offence without a charge can be set aside, prejudice will have to be made out — Such a legal position is bound to be held good in view of the provisions of Sections 215, 216, 218, 221 and 464 of Code of Criminal Procedure, 1973.

 
Thursday, September 30, 2010
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 212, 215 and 464 — After going through various case law, the following principles relating to sections 212, 215 and 464 of the Code, held, emerge:

 

(i)  The object of framing a charge is to enable an accused to have a clear idea of what he is being tried for and of the essential facts that he has tomeet. The charge must also contain the particulars of date, time, place and person against whom the offence was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.

 

 (ii) The accused is entitled to know with certainty and accuracy, the exact nature of the charge against him, and unless he has such knowledge, his defence will be prejudiced. Where an accused is charged with having committed offence against one person but on the evidence led, he is convicted for committing offence against another person, without a charge being framed in respect of it, the accused will be prejudiced, resulting in a failure of justice. But there will be no prejudice or failure of justice where there was an error in the charge and the accused was aware of the error. Such knowledge can be inferred from the defence, that is, if the defence of the accused showed that he was defending himself against the real and actual charge and not the erroneous charge.

 

 (iii) In judging a question of prejudice, as of guilt, the courts must act with a broad vision and look to the substance and not to the technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly, and whether he was given a full and fair chance to defend himself.

 
Monday, September 06, 2010
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 313 — Held, statement under Section 313 of the Code of Criminal Procedure is taken into consideration to appreciate the truthfullness or otherwise of the case of prosecution and it is not an evidence. 

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 313 — Evidence Act, 1872, Section 3 — Statement of an accused under Section 313 of the Code of Criminal Procedure is recorded without administering oath and, therefore, said statement cannot be treated as evidence within the meaning of Section 3 of the Evidence Act.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 315 — A person accused of an offence is a competent witness of the defence and may give evidence on oath in disproof of the charges. 

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 313 and 315 — There is reason not to treat the statement under Section 313 of the Code of Criminal Procedure as evidence as the accused cannot be cross-examined, with reference to those statements — However, when an accused appears as witness in defence to disproof the charge, his version can be tested by his cross-examination.

 
Friday, September 03, 2010
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 154 — FIR — In case the officer receives more than one piece of information in respect of the same incident involving one or more than one cognizable offences such information cannot properly be treated as an FIR as it would, in effect, be a second FIR and the same is not in conformity with the scheme of the Cr.P.C. 

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 154, 162, 169, 170 and 173 — FIR — Held, an FIR under Section 154 Cr.P.C. is a very important document — It is the first information of a cognizable offence recorded by the Officer In-Charge of the Police Station — It sets the machinery of criminal law in motion and marks the commencement of the investigation which ends with the formation of an 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. — Thus, it is quite possible that more than one piece of information be given to the Police Officer Incharge of the Police Station in respect of the same incident involving one or more than one cognizable offences — In such a case, he need not enter each piece of information in the Diary — All other information given orally or in writing after the commencement of the investigation into the facts mentioned in the First Information Report will be statements falling under Section 162 Cr.P.C.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 154 — Two FIRs — Held, the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction — If the answer is affirmative, the second FIR is liable to be quashed — However, in case, the contrary is proved, where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible — Further held, in case in respect of the same incident the accused in the first FIR comes forward with a different version or counter claim, investigation on both the FIRs has to be conducted.  

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Investigation by private investigating agency — Held, Cr.P.C. does not recognize private investigating agency, though there is no bar for any person to hire a private agency and get the matter investigated at his own risk and cost — But such an investigation cannot be treated as investigation made under law, nor can the evidence collected in such private investigation be presented by Public Prosecutor in any criminal trial — Therefore, the court emphasised on independence of the investigating agency and deprecated any kind of interference.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 173(8) — Held, Section 173(8) Cr.P.C. provides for further investigation and not of reinvestigation — Therefore, if the Court, comes to the conclusion that the investigation has been done in a manner with an object of helping a party, the court may direct for further investigation and ordinarily not for re-investigation.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 154 — Two FIRs — Whether can be permitted to exist? — Held, the only test whether two FIRs can be permitted to exist is whether the two conspiracies are identical or not — If the two conspiracies are not identical, lodging of two FIRs is permissible — Ram Lal Narang Vs. Om Prakash Narang & Anr. AIR 1979 SC 1791 relied. 

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 154 — Second FIR — There can be no second FIR and no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offences — However, filing an FIR pertaining to a counter claim in respect of the same incident having a different version of events, is permissible — T.T. Antony Vs. State of Kerala & Ors. (2001) 6 SCC 181 and Upkar Singh Vs. Ved Prakash & Ors. (2004) 13 SCC 292 relied

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 173(8) and Section 173(2) — Submission of the report under Section 173(2) Cr.P.C — Held, even after submission of the report under Section 173(2) Cr.P.C., if the Investigating Officer comes across any further information pertaining to the same incident, he can make further investigation, but it is desirable that he must take the leave of the court and forward the further evidence, if any, with further report or reports under Section 173(8) Cr.P.C.

 
Friday, August 27, 2010
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — Held, the powers possessed by the High Court under section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise — The court must be careful to see that its decision in exercise of this power is based on sound principles — The inherent power should not be exercised to stifle a legitimate prosecution but court’s failing to use the power for advancement of justice can also lead to grave injustice — The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material — Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — Indian Penal Code, 1860, Sections 498-A, 406, 341, 323 and 120-B — Dowry Prohibition Act, Sections 3 and 4 — Complainant/Respondent No.2 (wife), in the present case, filed a complaint under sections 498-A, 406, 341, 323 and 120-B of the Indian Penal Code read with sections 3  and 4 of the Dowry Prohibition Act against all immediate relations of her husband — In the criminal complaint, it was alleged that a luxury car was demanded by all the accused named in the complaint. It was also alleged that respondent no.2 was physically assaulted. According to the averments of the complaint, except for the demand of the luxury car no incident of harassment took place at Ranchi — Judicial Magistrate took cognizance and passed the summoning order of the appellants — Aggrieved by the said order of Judicial Magistrate, appellants filed a petition under Section 482 Cr.P.C. for quashing of complaint and the summoning order passed by the Judicial Magistrate against them on the ground that they have been living in different cities for a number of years and have neither interfered with the internal affairs of the complainant and her husband nor they visited Ranchi at any point of time — They further submitted that they have never lived with respondent No.2 and her husband — High Court, however, refused to exercise its inherent powers under section 482 of the Cr.P.C. — Appeal — Main Question — Whether the High Court was justified in not exercising its inherent powers under section 482 of the Code of Criminal Procedure in the facts and circumstances of this case? — Held, no — There are no specific allegations against the appellants in the complaint and none of the witnesses have alleged any role of both the appellants — Their implication in the complaint is meant to harass and humiliate the husband’s relatives — This seems to be the only basis to file this complaint against the appellants — Permitting the complainant to pursue this complaint would be an abuse of the process of law — Complaint against the appellants quashed — Judgment of the High Court set aside — Appeal allowed.

 
Tuesday, August 10, 2010
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 340 — Indian Penal Code, 1860, Section 195 — The power under section 340 Cr.P.C. read with section 195 IPC can be exercised only where someone fabricates false evidence or gives false evidence.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 340 — Civil Procedure Code, 1908, Order 10 Rule 2 — Held, Section 340 of the Code will not be attracted with reference to any statement under Order 10 Rule 2 of the CPC.

 
Thursday, July 29, 2010
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 204 — Issue of process — Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, other wise, it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — While exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained — That is the function of the trial Judge/Court.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — Section 482 is not an instrument handed over to an accused to short-circuit a prosecution and brings about its closure without full-fledged enquiry.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — Though High Court may exercise its power relating to cognizable offences to prevent abuse of process of any Court or otherwise to secure the ends of justice, the power should be exercised sparingly — For example, where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused or allegations in the FIR do not disclose a cognizable offence or do not disclose commission of any offence and make out a case against the accused or where there is express legal bar provided in any of the provisions of the Code or in any other enactment under which a criminal proceeding is initiated or sufficient material to show that the criminal proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused due to private and personal grudge, the High Court may step in.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — Though the powers possessed by the High Court under Section 482 are wide, however, such power requires care/caution in its exercise — The interference must be on sound principles and the inherent power should not be exercised to stifle a legitimate prosecution.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of inherent powers under Section 482. 

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — While deciding petition under section 482 of the Cr.P.C., it is immaterial whether the case is based on direct or circumstantial evidence.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — The interference at the threshold quashing the FIR is to be exceptional and not like routine as ordered by the High Court in the present case.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — The above provision only saves inherent power which the Court possessed before the enactment of the Code and does not confer any new powers on the High Court.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — The acceptability of the materials to fasten culpability on the accused persons is a matter of trial — Therefore, whether the raw material in existence would be sufficient for holding the accused persons concerned guilty or not has to be considered only at the time of trial.

 
Friday, July 09, 2010
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Word 'shall' — By its very nomenclature, Cr.P.C. is a compendium of law relating to criminal procedure — The provisions contained therein are required to be interpreted keeping in view the well recognized rule of construction that procedural prescriptions are meant for doing substantial justice — If violation of the procedural provision does not result in denial of fair hearing or causes prejudice to the parties, the same has to be treated as directory notwithstanding the use of word ‘shall’.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 203, 204 and 209 — Expression “sufficient ground” — Meaning of — Held, the expression “sufficient ground” used in Sections 203, 204 and 209 means the satisfaction that a prima facie case is made out against the person accused of committing an offence and not sufficient ground for the purpose of conviction.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 202(2), Proviso — Whether examination of all witnesses cited in the complaint is sine qua non for taking cognizance by a Magistrate in a case exclusively triable by the Court of Sessions? — Held, even though in terms of the proviso to Section 202(2), the Magistrate is required to direct the complainant to produce all his witnesses and examine them on oath, failure or inability of the complainant or omission on his part to examine one or some of the witnesses cited in the complaint or whose names are furnished in compliance of the direction issued by the Magistrate, will not preclude the latter from taking cognizance and issuing process or passing committal order if he is satisfied that there exists sufficient ground for doing so — Such an order passed by the Magistrate cannot be nullified only on the ground of non-compliance of proviso to Section 202(2) — High Court, in the present case, committed serious error by remitting the matter to the Chief Judicial Magistrate for further inquiry only on the ground that all the witnesses named by the appellant had not been examined — Order of the High Court set aside — Appeal allowed.

 
Tuesday, June 01, 2010
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 357(3) — Essentially the section empowers the courts, not to just impose a fine alone or fine along with the sentence of imprisonment, but also when the situation arises, direct the accused to pay compensation to the person who has suffered any loss or injury by reason of the act for which the accused person has been sentenced. 

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 357(3) — Section 357(3), held, is an important provision but Courts have seldom invoked it — Perhaps due to ignorance of the object of it — It empowers the Court to award compensation to victims while passing judgment of conviction — In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 357(3) — Power of Courts to award compensation under section 357(3), held, is not ancillary to other sentences but it is in addition thereto.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 357(3) — All Courts to exercise this power liberally so as to meet the ends of justice in a better way.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 357(3) — While passing an order under Section 357(3), it is imperative for the courts to look at the ability and the capacity of the accused to pay the same amount, otherwise the very purpose of granting an order of compensation would stand defeated.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 357(3) readwith Section 431 & 421 — Held, Section 431 clearly provides that an order of compensation under Section 357 (3) will be recoverable in the same way as if it were a fine — Section 421 further provides the mode of recovery of a fine and the section clearly provides that a person can be imprisoned for non-payment of fine — Therefore, going by the provisions of the code, the intention of the legislature is clearly to ensure that mode of recovery of a fine and compensation is on the same footing — In light of the aforesaid reasoning, the contention of the accused that there can be no sentence of imprisonment for default in payment of compensation under Section 357 (3) should fail.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 357(3) — Whether in default of payment of compensation ordered under Section 357 (3) of the Cr.P.C., a default sentence can be imposed? — Held, yes.

 
Tuesday, May 25, 2010
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 154 — FIR — Held, First Information Report does not constitute substantive evidence — It can, however, only be used as a previous statement for the purposes of either corroborating its maker or for contradicting him and in such a case the previous statement cannot be used unless the attention of witness has first been drawn to those parts by which it is proposed to contradict the witness.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 164 — Held, statement recorded under Section 164 Cr.P.C. can never be used as substantive evidence of truth of the facts but may be used for contradictions and corroboration of a witness who made it — The statement made under Section 164 Cr.P.C. can be used to cross examine the maker of it and the result may be to show that the evidence of the witness is false — It can be used to impeach the credibility of the prosecution witness.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 164 and Section 154 — Held, it is for the defence to invite the victim’s attention as to what she stated in the first information report and statement made under Section 164 Cr.P.C. for the purposes of bringing out the contradictions, if any, in her evidence — In the absence of the same the court cannot read 164 statement and compare the same with her evidence — Indian Penal Code, 1860, Section 376.

 
Monday, May 17, 2010
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 161 — Delay of 11 days in submitting the statements recorded under S.161 Cr.P.C. to the Court — Held, is not fatal to the prosecution case — Delay caused was due to reasons beyond the control of the investigating officer — There is clear explanation available on record to that effect.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Delay in despatch of the documents, such as the original report, the printed form of FIR, inquest report and statement of witnesses recorded during inquest and the statements of witnesses recorded under Section 161(3) of Cr.P.C. — Whether fatal to the case of prosecution? — Held, there is no quarrel with that proposition and the importance of requirement of sending the vital documents to the Court without any delay — But the delay may occur due to variety of facts and circumstances — Delay in despatch of the said documents by itself may not be fatal to the prosecution in each and every case — The question as to what is the effect of delay in sending the vital documents to the Court may have to be assessed and appreciated on the facts and circumstances of each case — It is not possible to lay down that delay in despatch of the vital documents in each and every case defeats the prosecution’s case.

 
Tuesday, May 11, 2010
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 451 and 457 — Motor Vehicles Act, 1988, Section 158(6) — Central Motor Vehicles Rules, 1989, Rule 159 — Measures to be adopted while dealing with seized vehicles — Grievance of the petitioners that the police, investigating agency and the prosecuting agency are not taking appropriate and adequate steps for compliance of directions issued by this Court in the case of Sunderbhai Ambalal Desai Versus State of Gujarat (2002) 10 SCC 283 and W.P. (C) No. 282 of 2007 titled General Insurance Council and Others Vs. State of Andhra Pradesh and Others, decided on 09.07.2007 — Petitioners have prayed that further directions be issued so that seized vehicles may not become junk and their road worthiness be maintained — Held, it is necessary that in addition to the directions issued by this Court in Sunderbhai Ambalal Desai [(2002) 10 SCC 283] considering the mandate of Section 451 read with Section 457 of the Code, the following further directions with regard to seized vehicles are required to be given.


DIRECTIONS


 “(A) Insurer may be permitted to move a separate application for release of the recovered vehicle as soon as it is informed of such recovery before the
Jurisdictional Court. Ordinarily, release shall be made within a period of 30 days from the date of the application. The necessary photographs may be taken duly authenticated and certified, and a detailed panchnama may be prepared before such release.


 (B) The photographs so taken may be used as secondary evidence during trial. Hence, physical production of the vehicle may be dispensed with.


 (C) Insurer would submit an undertaking/guarantee to remit the proceeds from the sale/auction of the vehicle conducted by the Insurance Company in the
event that the Magistrate finally adjudicates that the rightful ownership of the vehicle does not vest with the insurer. The undertaking/guarantee would be furnished at the time of release of the vehicle, pursuant to the applcation for release of the recovered vehicle. Insistence on personal bonds may be dispensed with looking to the corporate structure of the insurer.”  

 
Monday, April 12, 2010
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 378 — Observations in Eknath Shankarrao Mukkawar (1977) 3 SCC 25, in relation to Section 378 do not operate as binding precedent as construction of Section 378 was neither under consideration nor in issue in that case.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 378(1)  and Section 378(2) — The phrase “in any case” in sub-section (1) of Section 378, without hesitation, means “in all cases”, but the opening words in the said Section put fetters on the state government in directing appeal to be filed in two types of cases mentioned in sub-section (2).

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 378(1)  and Section 378(2) — Word “also” in sub-section (2) — In order that the exception (clause) expressly stated in the opening words of sub-section (1) might be preserved, it is necessary that word “also” in sub-section (2) is treated as immaterial.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 378(2) — Competent authority to appeal from an order of acquittal in two types of cases referred to in sub-section (2) is the central government and the authority of the state government in relation to such cases has been excluded.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 378 — Whether the State Government (of Bihar) has competence to file an appeal from the judgment dated 18th December, 2006 passed by Special Judge, CBI (AHD), Patna, acquitting the accused persons when the case has been investigated by the Delhi Special Police Establishment (CBI)? — Held, no.

 
Friday, March 19, 2010
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 157 — Delay in receipt of the Special Report — Held, mere delay in receipt of the Special Report, in no way causes doubt to the case of the prosecution.

 
Monday, February 22, 2010
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 227 — Discharge — After evaluating the materials produced by the prosecution and after considering the probability of the case, the Judge being satisfied by the existence of sufficient grounds against the appellant and another accused framed a charge — Whether the materials at the hands of the prosecution are sufficient or not are matters for trial — At this stage, it cannot be claimed that there is no sufficient ground for proceeding against the appellant and discharge is the only remedy — Further, whether the trial will end in conviction or acquittal is also immaterial.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 227 — Discharge — Section 227 of the Cr.P.C. was introduced in the Code to avoid wastage of public time which did not disclose a prima facie case and to save the accused from avoidable harassment and expenditure.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 227 — Discharge — Held, if two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the Trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal — Further, the words “not sufficient ground for proceeding against the accused” clearly show that the Judge is not a mere Post Office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution — In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts — At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused — In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 227 — Discharge petition — Dismissal of — In the present case, though, the learned Trial Judge has not assigned detailed reasons for dismissing the discharge petition filed under Section 227, it is clear from his order that after consideration of the relevant materials charge had been framed for offence under Section 302 read with Section 34 IPC and because of the same, he dismissed the discharge petition — Held,  the High Court has rightly affirmed the order passed by the Trial Judge dismissing the discharge petition filed by A3-appellant herein.

 
Saturday, February 13, 2010
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 203 — Complaint — Dismissed — Whether second complaint on the same facts can be entertained? — Held, an order of dismissal under S. 203, Criminal Procedure Code, is no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g., where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings have been adduced — Ratio in Pramatha Nath case (AIR 1962 SC 876) is still holding the field.
 

 
Wednesday, February 10, 2010
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 105-C(1) — Property envisaged in Section 105-C (1) cannot be an ordinary property earned out of ordinary offences committed in India.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 105-A to 105-L, Chapter VII-A — Contention of the petitioner-State that the provisions of Chapter VII-A are for all and sundry offences in India, held, is illogical — If such a construction as claimed by the petitioner is given then it would mean that even for the offences which are local in nature and committed within the State, still the property connected with those offences shall be forfeitured to the Central Government — That would obviously be an absurd result — The whole chapter is specific chapter relating to the specified offences therein and has nothing to do with the local offences or the properties earned out of those.

 
Thursday, February 04, 2010
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 161 — Inquest punchnama — Whether can be treated as statement of the witness recorded under Section 161 of the Cr.P.C.? — Held, no — The inquest punchnama cannot be treated as statement of the witness recorded under Section 161 of the Code of Criminal Procedure wherein he is supposed to narrate the facts seen by him.

 
Monday, January 25, 2010
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 296(2) — Negotiable Instruments Act, 1881, Section 145(2) — Difference between — Held, the crucial difference between section 296(2) of the Code and section 145(2) of the Act is that the former deals with the evidence of a formal nature whereas under the latter provision, all evidences including substantive evidence may be given on affidavit — Section 296 is part of the elaborate procedure of a regular trial under the Code while the whole object of section 145(2) of the Act is to design a much simpler and swifter trial procedure departing from the elaborate and time consuming trial procedure of the Code — Hence, notwithstanding the apparent verbal similarity between section 145(2) of the Act and section 296(2) of the Code, it would be completely wrong to interpret the true scope and meaning of the one in the light of the other.

 
Saturday, January 16, 2010
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 428 — Whether a person, who has been convicted in several cases and has suffered detention or imprisonment in connection therewith, would be entitled to the benefit of set-off in a separate case for the period of detention or imprisonment undergone by him in the other cases? — Held, no — Decision in the case of Maliyakkal Abdul Azeez [(2003) 2 SCC 439] rendered after the decision in Najakat Alia’s case [(2001) 6 SCC 311] followed as it reiterates the law laid down in the earlier cases such as in the case of Anne Venkateswara Rao [(1977) 3 SCC 298], Raghubir Singh [(1984) 4 SCC 348] and Champalal Punjaji Shah [(1982) 1 SCC 507] — Facts on which the decision was rendered in Najakat Alia Mubarak Ali’s case are distinguishable from the facts of this case.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 428 — The wording of Section 428, held, is clear and unambiguous — The heading of the Section itself indicates that the period of detention undergone by the accused is to be set off against the sentence of imprisonment — The Section makes it clear that the period of sentence on conviction is to be reduced by the extent of detention already undergone by the convict during investigation, enquiry or trial of the same case — It is quite clear that the period to be set off relates only to pre conviction detention and not to imprisonment on conviction.

 
Monday, January 11, 2010
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 438 — Anticipatory bail — When can be granted? — Held, anticipatory bail can be granted at any time so long as the applicant has not been arrested — When the application is made to the High Court or Court of Sessions it must apply its own mind on the question and decide when the case is made out for granting such relief — In the present case, the High Court ought not to have left the matter to the Magistrate only on the ground that the challan has now been presented — There is also no reason to deny anticipatory bail merely because the allegation in this case pertains to cheating or forgery of a valuable security — The merits of these issues shall have to be assessed at the time of the trial of the accused persons and denial of anticipatory bail only on the ground that the challan has been presented would not satisfy the requirements of Sections 437 and 438 Cr.P.C.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 438 — Anticipatory bail — The salutary provision contained in Section 438 Cr.P.C. was introduced to enable the Court to prevent the deprivation of personal liberty — It cannot be permitted to be jettisoned on technicalities such as “the challan having been presented anticipatory bail cannot be granted”.

 
Thursday, January 07, 2010
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 125 — Family Courts Act, 1984, Sections 7 and 20 — Jurisdiction to adjudicate upon the applications filed under Section 125 of Cr.P.C. — Held, family Court established under the Family Act shall exclusively have jurisdiction to adjudicate upon the applications filed under Section 125 of Cr.P.C.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 125 — Muslim Women (Protection of Rights on Divorce) Act, 1986, Section 4 — Family Courts Act, 1984, Sections 7 and 20 — Whether a Muslim divorced wife would be entitled to receive the amount of maintenance from her divorced husband under Section 125 of the Cr.P.C. and, if yes, then through which forum? — Held, even if a Muslim woman has been divorced, she would be entitled to claim maintenance from her husband under Section 125 of the Cr.P.C. after the expiry of period of iddat also, as long as she does not remarry — Further held, family Court established under the Family Act shall exclusively have jurisdiction to adjudicate upon the applications filed under Section 125 of Cr.P.C.

 
Friday, December 18, 2009
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 172(2) — Case dairy — A criminal court can use the case diary in the aid of any inquiry or trial but not as an evidence — This position is made clear by Section 172(2) of the Code.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 172(3) and 161 — Evidence Act, 1872, Section 145 — Case dairy — Held, section 172(3) places restrictions upon the use of case diary by providing that accused has no right to call for the case diary but if it is used by the police officer who made the entries for refreshing his memory or if the Court uses it for the purpose of contradicting such police officer, it will be so done in the manner provided in Section 161 of the Code and Section 145 of the Evidence Act.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 378 and 386 — Scope of exercise of power by the Appellate Court against judgment of acquittal under Sections 378 and 386, Cr.P.C — Held, if two views are possible, the Appellate Court should not ordinarily interfere with the judgment of acquittal — This Court has laid down that Appellate Court shall not reverse a judgment of acquittal because another view is possible to be taken.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 172(2) — Reliance on the case diary as a piece of evidence directly or indirectly — Held, in light of the inhibitions contained in Section 172(2), it is not open to the Court to place reliance on the case diary as a piece of evidence directly or indirectly.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 172 and 161(3) — The High Court, in the present case, erred in placing reliance upon the evidence of PW-2 to PW-4 by verifying their statements recorded under Section 161(3) of the Code from the case diary — It is here that the High Court fell into grave error in using the statements of PW-2 to PW-4 recorded under section 161(3) of the Code; particularly for contradicting PW-20 without affording any opportunity to him to explain the position — The course adopted by the High Court is impermissible in law as Section 172 of the Code is not meant to be used for the purpose it has been used by the High Court i.e. to overcome the contradictions pointed out by the defence. 

 
Wednesday, December 09, 2009
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 319 — The decision of the Hon’ble Supreme Court in the case of Mohd. Shafi v. Mohd. Rafiq & Anr. (2007) 4 SCR 1023 = 2007(5) SCALE 611, is not an authority for the proposition that in each and every case the Court must wait till the cross-examination is over — Correctness of decision in the case of Mohd. Shafi (supra) insofar as it was held that order summoning the accused may be passed only upon cross-examining the witnesses, having been doubted, has been referred to a three-Judge Bench.

 
Thursday, December 03, 2009
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 154(1) — Whether the non-availability of the FIR Book, by itself, could invite the suspicious glance from the Court? — Held, no 

 
Sunday, September 13, 2009
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 173 (8) — Re-investigation — Direction of — Whether Magistrate has jurisdiction to direct re-investigation of a case from time to time? — Held, no — However the direction for further investigation is permissible to the Magistrate under this provision.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 173 (2) — Protest petition by first informant — Concept of — When a final form is filed by any IO in exercise of his power under sub-section 2 of section 173 of the Code, the first informant has to be given notice — He may file a protest petition which in a given case may be treated to be a complaint petition, on the basis whereof after fulfilling the other statutory requirements cognizance may be taken. 

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 173 (2) — Power of Investigating Officer — The power of investigation is a statutory one and ordinarily and save and except some exceptional situations, no interference therewith by any court is permissible — Reliance placed on “Naresh Kawarchand Khatri vs State of Gujarat (2008) 8 SCC 300, Dharmeshbhai Vasudevbhai &Ors vs State of Gujarat 2009 (7) SCALE 214, “S. N. Sharma vs Bipen Kumar Tiwari” (1970) 1 SCC 653.        

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 173 (8) — Power of Investigating Officer — The Investigating Officer may exercise his statutory power of further investigation in several situations as, for example, when new facts come to its notice; when certain aspects of the matter had not been considered by it and it found that further investigation is necessary to be carried out from a different angle(s) keeping in view the fact that new or further materials came to the notice.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 173 (8) — Power of Magistrate or Superior Court — The Ld. Magistrate or the Superior Courts can direct further investigation, if the investigation is found to be tainted and/or otherwise unfair or is otherwise necessary in the ends of justice.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 173 (8) — Further investigation — Stage of order — Held, an order of further investigation can be made at various stages including the stage of trial, that is, after taking cognizance of the offence. 

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 156 (3) — In Sakiri Vasu vs. State of Uttar Pradesh & Ors. [(2008) 2 SCC 409] while dealing with the power of the court to direct the police officer to record an FIR in exercise of power under Section 156(3) of the Code observed that the Magistrate had also a duty to see that the investigation is carried out in a fair manner (correctness whereof is open to question). 

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 173 (8) and Section 156 (3) — Comparison of — Explained in the light of judgment “Devarapalli Laxminarayana Reddy & Ors vs V. Narayana Reddy & Ors” reported in [(1976) 3 SCC 252] 

 
Saturday, September 12, 2009
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 125, 126 — Family Courts Act, 1984 — Sections 7, 8 — Maintenance petition — Jurisdiction — Appellant/father had filed maintenance petition under Section 125 Cr.P.C. for payment of monthly maintenance of Rs. 5000/-  against respondent/his son before the family court at Bijapur — Respondent was an employ of Anjuman College, Syndagi — Syndagi also falls within Bijapur District and was subject to the jurisdiction of the Family Court at Bijapur — Trial Court/Family Court dismissed the petition by holding that petition ought to have been filed in Syndagi where the respondent was working/residing — Revision petition preferred before High Court, against the order of Trial Court — High Court also proceeded on the same line and dismissed the revision petition — Appeal against the order of High Court — Question of jurisdiction — Whether the Family Court and as also High Court were correct in determining the question of jurisdiction on the basis of the expression under Section 126(1)(a) Cr. P.C. without taking into the consideration the provision of  Sections 7 and 8 of Family Courts Act, 1984, or the opening words of Section 126(1) Cr. P.C.? — Held, no — Under Section 126(1)(a) Cr. P.C. (Proceeding under section 125 may be taken against any person in a district where he resides), the jurisdiction for filing any proceeding under section 125 would be in Bijapur itself where the Family Court for the District is situated — Sub-section 2 of Section 7 of the Family Courts Act  provides for the jurisdiction of the Family Courts with regard to relevant criminal matters — The petition had been rightly filed before the Family Court at Bijapur, which is situated in Bijapur, since under section 8(b) of the Family Courts Act  the magistrate’s jurisdiction under Chapter ix of Cr. P.C. has been excluded — Reading the opening words of Section 126 of Cr. P.C. with Section 7(2)(a) of the Family Courts Act, 1984, It is quite clear that it was the Family Court at Bijapur which had the jurisdiction to entertain the petition filed by the appellant — Appeal allowed — Orders of Trial Court and High Court set aside — Matter remanded to Family Court for fresh consideration in accordance with law — Vijay Kumar Prasad vs State of Bihar 2004 (5) SCC 1967 distinguisted.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 125, 126 — Family Courts Act, 1984, Sections 7 and 8 — Maintenance petition — Jurisdiction — Provisions contained in Section 126 of Cr. P.C. and in Sections 7(2) and 8(b) of Family Courts Act, 1984 — Combined reading thereof — Provides for the jurisdiction of the Family Courts for the district, where it is situated, with regard to relevant criminal matters under Chapter IX of Cr. P.C. and excludes the jurisdiction of Magistrate of First Class thereto.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 125, 126 — Family Courts Act, 1984 — Sections  8(b) — Jurisdiction — Section 8(b) of the Family Courts Act excludes the magistrate’s jurisdiction with regard to criminal matters provided under Chapter IX of Cr. P.C.  

 
Thursday, August 13, 2009
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 438 — Anticipatory bail — The Constitution Bench in Shri Gurbaksh Singh Sibbia & ors. vs. State of Punjab (1980) 2 SCC 565,  laid down the following guidelines, which the Courts are required to keep in mind while dealing with an application for grant of anticipatory bail:
 
 i) Though the power conferred under Section 438 of the Code can be described as of an extraordinary character, but this does not justify the conclusion that the power must be exercised in exceptional cases only because it is of an extraordinary character. Nonetheless, the discretion under the Section has to be exercised with due care and circumspection depending on circumstances justifying its exercise.

 ii) Before power under sub-section (1) of Section 438 of the Code is exercised, the Court must be satisfied that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailable offence and that belief must be founded on reasonable grounds. Mere “fear” is not belief, for which reason, it is not enough for the applicant to show that he has some sort of vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively. Specific events and facts must be disclosed by the applicant in order to enable the Court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the Section.

 iii) The observations made in Balchand Jain’s case (supra), regarding the nature of the power conferred by Section 438 and regarding the question whether the conditions mentioned in Section 437 should be read into Section 438 cannot be treated as conclusive on the point. There is no warrant for reading into Section 438, the conditions subject to which bail can be granted under Section 437(1) of the Code and therefore, anticipatory bail cannot be refused in respect of offences like criminal breach of trust for the mere reason that the punishment provided for is imprisonment for life. Circumstances may broadly justify the grant of bail in such cases too, though of course, the Court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal.

 iv) No blanket order of bail should be passed and the Court which grants anticipatory bail must take care to specify the offence or the offences in respect of which alone the order will be effective. While granting relief under Section 438(1) of the Code, appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. One such condition can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the recovery. Otherwise, such an order can become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed. 

 v) The filing of First Information Report (FIR) is not a condition precedent to the exercise of power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.

 vi)  An anticipatory bail can be granted even after an FIR is filed so long as the applicant has not been arrested.

 vii) The provisions of Section 438 cannot be invoked after the arrest of the accused. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.

 viii) An interim bail order can be passed under Section 438 of the Code without notice to the Public Prosecutor but notice should be issued to the Public Prosecutor or to the Government advocate forthwith and the question of bail should be re-examined in the light of respective contentions of the parties. The ad-interim order too must conform to the requirements of the Section and suitable conditions should be imposed on the applicant even at that stage.

 ix) Though it is not necessary that the operation of an order passed under Section 438(1) of the Code be limited in point of time but the Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of FIR in respect of the matter covered by the order. The applicant may, in such cases, be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonable short period after the filing of the FIR.  

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 438 — Anticipatory bail — View expressed by this Court in Adri Dharan Das Vs. State of W.B.(2005) 4 SCC 303 to the effect that while dealing with an application under Section 438 of the Code, the Court cannot pass an interim order restraining arrest as it will amount to interference in the investigation, held, does not appear to be in consonance with the opinion of the Constitution Bench in Sibbia’s case [(1980) 2 SCC 565].  

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — Negotiable Instruments Act, 1881, Section 138 — In the present case, appellant-accused filed a petition under Section 482 of the Code for quashing of the complaint — High Court, however, dismissed the petition on the ground that the plea of the appellant that the cheque was not issued by him involved a disputed question of fact which could not be gone into by the Court in proceedings under Section 482 of the Code — Held, it was a fit case where the High Court, in exercise of its jurisdiction under Section 482 of the Code, should have quashed the complaint under Section 138 of the Act — Decision of the High Court cannot be sustained — Appeal allowed — Order set aside — Criminal complaint pending against the appellant is quashed.


 
Sunday, July 12, 2009
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 357 (3) and Section 431 — Indian Penal Code, 1860, Section 64 — Whether a default sentence can be imposed when compensation is awarded under Sub- Section (3) of Section 357 of the Code of Criminal Procedure? — Held, yes — The provisions of Sections 357(3) and 431 Cr.P.C., when read with Section 64 IPC, empower the Court, while making an order for payment of compensation, to also include a default sentence in case of non-payment of the same.

 
Saturday, July 11, 2009
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 154 and 162 — FIR — The object and purpose of giving a telephonic message is not to lodge the FIR but to request the officer incharge of the police station to reach the place of occurrence — On the other hand if the information given on telephone is not cryptic and on the basis of that information the officer in charge is prima facie satisfied about the commission of a cognizable offence and proceeds from the police station after recording such information to investigate such offence then any statement made by any person in respect of the said offence including details about the participants shall be deemed to be a statement made by a person to the police officer in the course of investigation covered by Section 162 of Code — That statement cannot be treated as FIR.

 

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 313 — Held, the word ‘generally’ in sub-section (1)(b) of Section 313 does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it — The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed — The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand — A conviction based on the accused’s failure to explain what he was never asked to explain is bad in law — The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give. 

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 313 — Held, the importance of observing faithfully and fairly the provisions of Section 313 of the Code cannot be too strongly stressed — It is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them — He must be questioned separately about each material substance which is intended to be used against him — The questionings must be fair and couched in a form which an ignorant or illiterate person will be able to appreciate and understand — Even when an accused is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder — Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand. 

 
Sunday, June 14, 2009
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 133 — Application of — Held, to bring in application of Section 133 of the Code, there must be imminent danger to the property and consequential nuisance to the public — The nuisance is the concomitant act resulting in danger to the life or property due to likely collapse etc.  

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 133 — Object — Held, the object and purpose behind Section 133 of the Code is essentially to prevent public nuisance and involves a sense of urgency in the sense that if the Magistrate fails to take recourse immediately irreparable damage would be done to the public — It applies to a condition of the nuisance at the time when the order is passed and it is not intended to apply to future likelihood or what may happen at some later point of time — It does not deal with all potential nuisance, and on the other hand applies when the nuisance is in existence. 

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 133 and 144 — Sometimes there is confusion between Section 133 and Section 144 of the Code — While the latter is a more general provision the former is more specific — While the order under the former is conditional, the order under the latter is absolute — The proceedings are more in the nature of civil proceedings than criminal proceedings. 

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 133 — Person against whom action is taken is not an accused within the meaning of Section 133 of the Code — He can give evidence on his own behalf and may be examined on oath — Proceedings are not the proceedings in respect of offences.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 133 — The provisions of Section 133 of the Code can be called in aid to remove public nuisance caused by discharge of effluents and air discharge causing hardship to the general public.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 133 — A proceeding under Section 133 is of a summary nature.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 133(2) — Sub-section (2) of Section 133 postulates that no order duly made by a Magistrate under this Section shall be called in question in any civil Court.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 133 — Proceedings under Section 133 are not intended to settle private disputes between different members of the public — They are in fact intended to protect the public as a whole against inconvenience.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 133 and 144 — A comparison between the provisions of Section 133 and 144 of the Code shows that while the former is more specific the latter is more general — Therefore, nuisance specially provided in the former section is taken out of the general provisions of the latter section — The proceedings under Section 133 are more in the nature of civil proceedings than of criminal nature.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 133(1)(b) — Held, section 133(1)(b) relates to trade or occupation which is injurious to health or physical comfort — It itself deals with physical comfort to the community and not with those acts which are not in themselves nuisance but in the course of which public nuisance is committed — In order to bring a trade or occupation within the operation of this Section, it must be shown that the interference with public comfort was considerable and a large section of the public was affected injuriously — The word ‘community’ in Clause (b) of Section 133(1) cannot be taken to mean residents of a particular house — It means something wider, that is, the public at large or the residents of an entire locality — The very fact that the provision occurs in a Chapter containing “Public Nuisance” is indicative of this aspect — It would, however, depend on the facts situation of each case and it would be hazardous to lay down any straitjacket formula.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 133 — The guns of Section 133 go into action wherever there is public nuisance — The public power of the Magistrate under the Code is a public duty to the members of the public who are victims of the nuisance, and so he shall exercise it when the jurisdictional facts are present — “All power is a trust – that we are accountable for its exercise – that, from the people, and for the people, all springs and all must exist” — The conduct of the trade must be injurious in presenti to the health or physical comfort of the community — There must, at any rate, be an imminent danger to the health or the physical comfort of the community in the locality in which the trade or occupation is conducted — Unless there is such imminent danger to the health or physical comfort of that community or the conduct of the trade and occupation is in fact injurious to the health or the physical comfort of that community, an order under Section 133 cannot be passed.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 133 and 138 — A conjoint reading of Sections 133 and 138 of the Code, held, discloses that it is the function of the Magistrate to conduct an enquiry and to decide as to whether there was reliable evidence or not to come to the conclusion to act under Section 133.

 
Saturday, May 16, 2009
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 177, 178 & 179 — Held, Section 177 of the Code of Criminal Procedure determines the jurisdiction of a court trying the matter — The court ordinarily will have the jurisdiction only where the offence has been committed — The provisions of Sections 178 and 179 of the Code of Criminal Procedure are exceptions to Section 177 — These provisions presuppose that all offences are local.

 
Sunday, April 12, 2009
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 397(2) read with Section 91 — Application under Section 91 Cr.P.C. for production of documents rejected — Revision against — Held, revision under Section 397(2) Cr.P.C. against the order rejecting application under Section 91 Cr.P.C. is not maintainable as order rejecting application under Section 91 Cr.P.C. is an interlocutory order.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 397(2) read with Section 311 — Application under Section 311 Cr.P.C. for recalling the witness — Rejected — Revision against — Held, revision under Section 397(2) Cr.P.C. against the order rejecting application under Section 311 Cr.P.C. is not maintainable as order rejecting application under Section 311 Cr.P.C. is an interlocutory order.

 
Tuesday, March 17, 2009
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 313 — What is the object of examination of an accused under Section 313 of the Code? — Held, the section itself declares the object in explicit language that it is “for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him”.  

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 313(1), Clauses (a) and (b) — The word “may” in clause (a) of sub-section (1) in Section 313 of the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance for it — But if the court fails to put the needed question under clause (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him — It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 243(1), 247 & 233(2) — Written statement by the accused — Held,  Section 243(1) of the Code enables the accused, who is involved in the trial of warrant case instituted on police report, to put in any written statement — When any such statement is filed the court is obliged to make it part of the record of the case — Even if such case is not instituted on police report the accused has the same right (vide Section 247) — Even the accused involved in offences exclusively triable by the Court of Session can also exercise such a right to put in written statements (Section 233(2) of the Code).    

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 313(1), Clause (b) — Word “shall” — Interpretation of — Held, the word “shall” in clause (b) to Section 313(1) of the Code is to be interpreted as obligatory on the court and it should be complied with when it is for the benefit of the accused — But if it works to his great prejudice and disadvantage the court should, in appropriate cases, e.g., if the accused satisfies the court that he is unable to reach the venue of the court, except by bearing huge expenditure or that he is unable to travel the long journey due to physical incapacity or some such other hardship, relieve him of such hardship and at the same time adopt a measure to comply with the requirements in Section 313 of the Code in a substantial manner — How could this be achieved ? — See the case of Basav Raj R Patil v. State of Karnataka (2000 (8) SCC 740) and Keya Mukherjee v. Magma Leasing Ltd. and Ors. 2008(2) SLJ (SC) 801.    

 
Saturday, March 14, 2009
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — Held, Section 482 does not confer any new powers on the High Court — It only saves the inherent power which the Court possessed before the enactment of the Code — It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice — It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — Held, when a report is sought to be quashed, it is permissible to look into the materials to assess what the report has alleged and whether any offence is made out even if the allegations are accepted in toto.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — Held, when exercising jurisdiction under Section 482 of the Code the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained — That is the function of the trial Judge — Judicial process should not be an instrument of oppression, or, needless harassment — Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly — At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death.  

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — Scope of — Held, the scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail in the case of State of Haryana v. Bhajan Lal (1992 Supp (1) 335).

 
Wednesday, March 11, 2009
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 397(3) and 482 — Held, the object of the introduction of Sub-section (3) in Section 397 was to prevent a second revision so as to avoid frivolous litigation, but, at the same time, the doors to the High Court to a litigant who had lost before the Sessions Judge was not completely closed and in special cases the bar under Section 397(3) could be lifted — In other words, the power of the High Court to entertain a petition under Section 482, was not subject to the prohibition under Sub-section (3) of Section 397 of the Code, and was capable of being invoked in appropriate cases.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 read with Section 397(3) — Power of the High Court to entertain a petition under Section 482, held, is not subject to the prohibition under Sub-section (3) of Section 397 of the Code, and is capable of being invoked in appropriate cases.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 145(6) — Specific Relief Act, 1963, Section 6 — Specific Relief Act, held, has no application to a proceeding under Section 145 Cr.P.C. — Provisions of the Specific Relief Act, in the present case, had been misapplied by the High Court in holding that the appellants should have come for an order under Section 145(6) of the Code within six months from the date of dispossession, as provided in Section 6 of the said Act.    

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 145(4) — Limitation Act, 1963, Article 137 — Application for implementation of order passed under Section 145(4) Cr.P.C., held, has to be filed within a period of three years from the date of the order.  

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 145(6) and Section 145(4) — Held, an application under Section 145(6) may be made to be put in possession of a property in respect of which the party has been declared to be entitled to possession — Such an application cannot be made as and when the person dispossessed chooses to do so — It is for such purpose that Article 137 has been pressed into service since no limitation has been prescribed in Section 145 itself to indicate as to within which time a party found to be entitled to possession could be put back in possession — Limitation Act, 1963, Article 137.  

 

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 439 read with Section 437(1)(i) — Conditions laid down under Section 437 (1)(i), held, are sine qua non for granting bail even under Section 439 of the Code.

 
Sunday, February 15, 2009
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 389 — Suspension of execution of sentence and grant of bail — Held, the mere fact that during the period when the accused persons were on bail during trial there was no misuse of liberties, does not per se warrant suspension of execution of sentence and grant of bail — What really was necessary to be considered by the High Court is whether reasons existed to suspend the execution of sentence and thereafter grant bail — The High Court does not seem to have kept the correct principle in view — Order of the High Court is clearly indefensible and is set aside — Appeal allowed.  

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 389 — Order directing suspension of sentence and grant of bail should not be passed as a matter of routine.  

 

 
Thursday, February 12, 2009
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 197 — All acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of Section 197 Cr.P.C. — If the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of Section 197 Cr.P.C. and have to be considered de hors the duties which a public servant is required to discharge or perform — Hence, in respect of prosecution for such excesses or misuse of authority, no protection can be demanded by the public servant concerned — Bhagwan Prasad Srivastava vs. N.P. Misra [(1971) 1 SCR 317] relied.  

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 197 — In order to apply the bar of Section 197 Cr.P.C. each case has to be considered in its own fact situation in order to arrive at a finding as to whether the protection of Section 197 Cr.P.C. could be given to the public servant.    

 
Wednesday, November 12, 2008
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 437(1)(i) and Section 439 — The conditions laid down under Section 437 (1)(i) are sine qua non for granting bail even under Section 439 of the Code.  

 

 
Tuesday, October 14, 2008
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 319 — Held, section 319 of the Code empowers a Court to proceed against any person not shown to be an accused if it appears from the evidence that such person has also committed an offence for which he can be tried together with the accused.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 319 — Power under Section 319 can be exercised either on an application made to the Court or by the Court suo motu — It is in the discretion of the Court to take an action under the said section and the Court is expected to exercise the discretion judicially and judiciously having regard to the facts and circumstances of each case.     

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 319 — Contention of the learned counsel for respondent No.2 that power under section 319 of the Code, cannot be exercised belatedly by the Court — Held, not tenable — Section 319 of the Code does not prescribe any time limit within which such application should be filed in the Court.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 319 — Contention that an application under Section 319 cannot be filed by a person who is facing the trial — Held, not tenable.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 204 and 203 — Magistrate, held, has no power to recall an order of summoning the accused — Adalat Prasad vs. Rooplal Jindal & Ors., (2004) 7 SCC 338 relied. 

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 read with Sections 204 and 203 — Once an order is passed by a Competent Court issuing summons or process, it cannot be recalled — Remedy lies in invoking S.482 of the Code — Adalat Prasad vs. Rooplal Jindal & Ors., (2004) 7 SCC 338 relied.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — In the present case, learned Magistrate issued summons taking into account evidence led by the prosecution — Whether revisional court was justified in entering into correctness or otherwise of the evidence at the stage of issuance of summons to respondent No.2 ? — Held, no — Revisional court was not right in interfering with that order.  
 

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 197 — A point as to need or necessity of sanction can be taken during the conduct of trial or at any stage of the proceedings. 

 
Tuesday, August 12, 2008
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 243 — Held, what should be the nature of evidence is not a matter which should be left only to the discretion of the Court — It is the accused who knows how to prove his defence — It is true that the court being the master of the proceedings must determine as to whether the application filed by the accused in terms of sub-section (2) of Section 243 of the Code is bona fide or not or whether thereby he intends to bring on record a relevant material — But ordinarily an accused should be allowed to approach the court for obtaining its assistance with regard to summoning of witnesses etc. — If permitted to do so, steps therefor, however, must be taken within a limited time — There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protracting the trial or summon witnesses whose evidence would not be at all relevant.

 
Thursday, June 12, 2008
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 173(8) and Section 173(2) — Fresh investigation or re-investigation — Whether permissible under Section 178(8)? — Held, no — There is no scope for fresh or re-investigation in view of what is provided in Section 173(8) of the Code — From a plain reading of Section 173 it is evident that even after completion of investigation under sub-section (2) of Section 173 of the Code, the police has right to further investigate under sub-section (8), but not fresh investigation or re-investigation.

 
Wednesday, May 14, 2008
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 313(1)(b) — Exemption from personal examination — If the accused (who is already exempted from personally appearing in the court) makes an application to the court praying that he may be allowed to answer the questions without making his physical presence in court on account of justifying exigency the court can pass appropriate orders thereon, provided such application is accompanied by an affidavit sworn to by the accused himself containing the following matters :

 (a) A narration of facts to satisfy the court of his real difficulties to be physically present in court for giving such answers.

 (b) An assurance that no prejudice would be caused to him, in any manner, by dispensing with his personal presence during such questioning.

 (c) An undertaking that he would not raise any grievance on that score at any stage of the case.

 If the court is satisfied of the genuineness of the statements made by the accused in the said application and affidavit it is open to the court to supply the questionnaire to his advocate (containing the questions which the court might put to him under Section 313 of the Code) and fix the time within which the same has to be returned duly answered by the accused together with a properly authenticated affidavit that those answers were given by the accused himself — He should affix his signature on all the sheets of the answered questionnaire — However, if he does not wish to give any answer to any of the questions he is free to indicate that fact at the appropriate place in the questionnaire (as a matter of precaution the court may keep photocopy or carbon copy of the questionnaire before it is supplied to the accused for an answer) — If the accused fails to return the questionnaire duly answered as aforesaid within the time or extended time granted by the court, he shall forfeit his right to seek personal exemption from court during such questioning — The Court has also to ensure that the imaginative response of the counsel is intended to be availed to be a substitute for taking statement of accused — If the above course is adopted in exceptional exigency it would not violate the legislative intent envisaged in Section 313 of the Code.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 313 — Object — Held, Section 313 of the Cr.P.C. itself declares the object in explicit language that it is “for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him” — Provision is mainly intended to benefit the accused and as its corollary to benefit the Court in reaching the final conclusion.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 313(1)(a) and Section 313(1)(b) — The word "may" in clause (a) of sub-section (1) in Section 313 of the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance for it — But if the court fails to put the needed question under clause (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 313 — Provision is not intended to nail accused to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 243(1), 247, 233(2) — Written statement by accused — Held, Section 243(1) of the Code enables the accused, who is involved in the trial of warrant case instituted on police report, to put in any written statement — When any such statement is filed the court is obliged to make it part of the record of the case — Even if such case is not instituted on police report the accused has the same right (vide Section 247) — Even the accused involved in offences exclusively triable by the Court of Session can also exercise such a right to put in written statements (Section 233(2) of the Code).

 
Friday, January 04, 2008
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 360 and 361 — Probation of Offenders Act, 1958 — Enforcement of Probation Act in some particular area excludes the applicability of the provisions of Sections 360, 361 of the Code in that area.

 
Thursday, December 13, 2007
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 313 — Statements under Section 313 of the Code of Criminal Procedure, cannot form the sole basis of conviction; but the effect thereof may be considered in the light of other evidences brought on record.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 164 — Section 164 of the Cr.P.C., held, cannot be said to be exhaustive in nature.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 164 — The Magistrate putting the questions to an accused brought before him from police custody, should some time, be more intrusive than what is required in law.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 164 — In a case, where confession is made in the presence of a Magistrate conforming the requirements of Section 164, if it is retracted at a later stage, the court  should probe deeper into the matter — Despite procedural safeguards contained in the said provision, the learned Magistrate should satisfy himself that whether the confession was of voluntary nature — It has to be appreciated that there can be times where despite such procedural safeguards, confessions are made for unknown reasons and in fact made out of fear of police.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 164 — Judicial confession must be recorded in strict compliance of the provisions of Section 164 of the Code of Criminal Procedure — While doing so, the court shall not go by the black letter of law as contained in the aforementioned provision; but must make further probe so as to satisfy itself that the confession is truly voluntary and had not been by reason of any inducement, threat or torture.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 125 — Phrase "unable to maintain herself" — Meaning of — Held, the phrase "unable to maintain herself" would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 125 — Object — Held, the object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 125 — Maintenance — The appellant, in the instant case, has placed material to show that the respondent-wife was earning some income — Held, that is not sufficient to rule out application of Section 125 Cr.P.C. — It has to be established that with the amount she earned the respondent-wife was able to maintain herself — The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 125 — Maintenance — In a proceeding under Section 125 of the Cr.P.C., it cannot be said that the wife has been capable of earning but she was not making an effort to earn.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 125 — Maintenance — Expression "unable to maintain herself" does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 Cr.P.C.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 125 — Maintenance — Constitution of India, 1950, Article 15(3) and Article 39 — Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children and falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India, 1950 — It is meant to achieve a social purpose — The object is to prevent vagrancy and destitution — It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife — It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves.

 
Monday, August 13, 2007
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 468 — Relevant date for deciding whether the complaint is barred by limitation is the date of the filing of complaint and not issuance of process or taking of cognizance by Court — All decisions in which it has been held that the crucial date for computing the period of limitation is taking of cognizance by the Magistrate/Court and not of filing of complaint or initiation of criminal proceedings are hereby over-ruled — Appeal allowed.     

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 311 — Scope — The section is manifestly in two parts — Whereas the word used in the first part is "may", the second part uses "shall" — In consequence, the first part gives purely discretionary authority to a Criminal Court and enables it at any stage of an enquiry, trial or proceeding under the Code : (a) to summon any one as a witness, or (b) to examine any person present in Court, or (c) to recall and re-examine any person whose evidence has already been recorded — On the other hand, the second part is mandatory and compels the Court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case — This is a supplementary provision enabling, and in certain circumstances imposing on the Court the duty of examining a material witness who would not be otherwise brought before it — It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which it should be exercised — It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject — There is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 311 — Object — The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side — The determinative factor is whether it is essential to the just decision of the case — The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case for the prosecution and not that of the accused.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 311 — The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 311 — Object — The object of the Section 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 311 — Evidence Act, 1872, Section 137 — Right of complainant to cross-examine a witness called by the Court — If a witness called by Court gives evidence against the complainant he should be allowed an opportunity to cross-examine — The right to cross-examine a witness who is called by a Court arises not under the provision of Section 311, but under the Evidence Act which gives a party the right to cross-examine a witness who is not his own witness — Since a witness summoned by the Court could not be termed a witness of any particular party, the Court should give the right of cross-examination to the complainant — Jagat Rai vs. State of Maharashtra AIR 1968 SC 178 relied.

 
Friday, July 13, 2007
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 125 — Muslim Woman (Protection of Rights on Divorce) Act, 1986 — There is no bar on Muslim woman filing petition in terms of Section 125 Cr.P.C. — The Act only applies to divorced woman and not the Muslim married women who are not divorced.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 125 — Muslim Woman (Protection of Rights on Divorce) Act, 1986 — Proceedings under Section 125 Cr.P.C. are civil in nature — Even if the Court notices that there was a divorced muslim woman in the case in question, it was open to him to treat it as a petition under the Act considering the beneficial nature of the legislation — Proceedings under Section 125 Cr.P.C. and claims made under the Act are tried by the same Court.

 
Friday, June 15, 2007
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 439(2) — Cancellation of bail — No conditions were stipulated by the trial Court while granting bail — High Court while exercising power under Section 439(2) of the Cr.P.C. cancelled the bail on the ground that appellant has violated the conditions imposed — Held, High Court has erroneously observed that the conditions for grant of bail were violated — There was no specific condition imposed — Matter remanded back to the High Court for fresh consideration of the application for cancellation of bail.

 
Tuesday, June 12, 2007
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 161, 172(3) — Statement of witnesses recorded during investigation — Whether includes the interpretation of the Investigating Officer of the statements or the gists of statement recorded under Section 172 ? — Held, no — Therefore, direction of the High Court that if the ‘gists’ can be regarded statement under Section 161 Cr.P.C. although summary in form, than the same should be supplied to the accused-respondent, held, is clearly unsustainable — Direction set aside — Appeal allowed.

 
Monday, January 15, 2007
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 156, 190 and 200 — Constitution of India, Article 32 — F.I.R lodged — Police not taking any action — Held, complainant can lay complaint before the Magistrate — Writ petition in such cases is not to be entertained.  

 

 
Sunday, January 14, 2007
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Sections 242, 219 — Proviso to section 242 of the Cr.P.C., held, permits the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination — It, however, does not deal with either the clubbing of cases registered against the accused or simultaneous trial of different cases registered against an accused.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 313 — Examination of accused under section 313 — Whether can be postponed ? — Held, no — There is no provision in the Code of Criminal Procedure which enables the Court to postpone the examination of the accused under Section 313 Cr.P.C. till the completion of the trial in other cases — Merely because certain other charge-sheets have been filed against the same accused for similar offences cannot be a ground to postpone the examination of the accused under Section 313 of Cr.P.C.

 
Friday, January 12, 2007
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — Inherent powers — The section, held, does not confer any new powers on the High Court — It only saves the inherent power which the Court possessed before the enactment of the Code — It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice — It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction — No legislative enactment dealing with procedure can provide for all cases that may possibly arise.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — While exercising powers under the section, the court does not function as a court of appeal or revision — Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself — It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. 

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained — That is the function of the trial Judge.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 482 — The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings.

 
Monday, October 23, 2006
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Witnesses — There is no provision in the Code of Criminal Procedure that by filing affidavit the witnesses examined as prosecution witnesses could be juxtaposed as defence witnesses and be examined as defence witnesses on behalf of the accused.

 
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 233(3) — The provisions of sub-section (3) of Section 233 cannot be understood as compelling the attendance of any prosecution witness examined, cross-examined and discharged to be juxtaposed as defence witnesses — In the present case, the witnesses were examined by the prosecution as eye-witnesses on 18.12.1990, cross-examined and discharged — Thereafter, an application under Section 311, Cr. P.C. was rejected — They were recalled purportedly in exercise of power under sub-section (3) of Section 233, Cr. P.C. and examined as DW-1 and DW-2 on behalf of the accused on 17.7.1995 — This was clearly for the purpose of defeating the ends of justice, which is not permissible under the law.

 
Thursday, October 05, 2006
Criminal Procedure Code, 1973

Criminal Procedure Code, 1973 — Section 302 — Indian Penal Code, 1860, section 500 read with Section 34 — Complaint under section 500 read with Section 34 of the I.P.C. filed — Death of complainant — Legal heirs of the complainant, held, can be allowed to file a petition under Section 302 of the Cr. P.C. to continue the prosecution. 

 
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