Week Lecture Readings

1-2 Constitution and hierarchy of criminal courts – jurisdiction and powers of

criminal courts – magistrates and their powers.

Functionaries under the Code – police – prosecutor – defense counsel – prison

authorities – and their roles.

Classification of offences – cognizable, non-cognizable, bailable, non-bailable,

summons, and warrants cases – pre-trial procedure – duty of the public to give
information and to assist magistrate and police.

Mandatory:
 Section 1,2 (relevant definition clauses), 4-29, 303-304 of The Code of
Criminal Procedure 1973 Bare Act
Suggested:
Herbert Packer, Two Models of the Criminal Process, 113 University of
Pennsylvania Law Review 1 (1964)

3-5 Investigation – information in cognizable cases – information in non bailable cases

– police officers’ powers to investigate cognizable cases – rule of police as to non-
cognizable cases – report to magistrate – examination of witnesses by police –
recording of statements and evidentiary value – police diary – report of police
officer on completion of investigation.

Mandatory:
 Section 154-173 (except section 164 and 167) The Code of Criminal
Procedure 1973 Bare Act
State of Haryana v. Bhajan Lal 1992 Supp. (1) SCC 335
Lalita Kumari v. Government of UP (2014) 2 SCC 1
Yanub Sheikh v. State of WB (2013) 6 SCC 428
Nandini Satpathy v. PL Dani (1978) 2 SCC 424
Mahabir Singh v. State of Haryana (2001) 7 SCC 148
Joginder Nahak v. State of Orissa (2000) 1 SCC 272
Anju Chaudhary v. State of UP (2013) 6 SCC 384
TT Antony v. State of Kerala (2001) 6 SCC 181
Shivappa v. State of Karnataka (1995) 2 SCC 76
Sakiri Vasu v. State of UP, (2008) 2 SCC 409
Arrest ipm, summon and warrant not that inportant
 Suggested:
State of Telangana v. Sarveshwar Reddy (Crim Appeal No. 1662/2019)
Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1
State of WB v. Swapan Kumar Guha (1982) 1 SCC 561
Criminal Procedure (identification) Act 2022 and the Rules

Process to compel appearance & production of things – steps to ensure

accused’s presence at the trial – rights of arrested persons – summons – warrants –
search and seizure – production of documents – impounding of documents - search
and seizure of electronic devices.

Mandatory:
 Sections 41-60A, Section 61-81, 87-104, 164 The Code of Criminal
Procedure 1973 Bare Act
DK Basu AIR 1997 SC 610
Joginder Kumar v. State of UP 1994 SCC (4) 260
V S Kuttan Pillai v. Ramakrishnan, AIR 1980 SC 185
Arnesh Kumar V. State of Bihar 2014 8 SCC 273 case
Virendra Khanna v. State of Karnataka 2021 SCC Online Kar 5032
Abhinav Sekhri, On Digital Devices and Criminal Investigations, The India
Forum.

Suggested:
Radha Kishan v. State of UP AIR 1963 SC 822
Manish Dixit v. State of Rajasthan (2000) 1 SCC 596
Shyam Lal Sharma v. State of MP (1972) 1 SCC 764
State of Maharashtra v. Christian Community Welfare Council (2003) 8 SCC
546
Social Action Forum for Manav Adhikar v. Union of India (2018) 10 SCC 443

6-8 Sec. 167 – rules regulating investigation beyond 24 hours – remand – custody –
right to default bail.

Mandatory:
CBI v. Anupam Kulkarni 1992 AIR 1768
Sanjay Dutt v. State (1994) 5 SCC 410

Suggested:
Chaganti Satyanarayana v. State of AP (1986) 3 SCC 141
Aslam Desai v. State of Maharashtra (1992) 4 SCC 272
Uday Mohan Acharya v. State of Maharashtra (2001) 5 SCC 453
 Sudha Bharadwaj v. NIA January (2021 SCC OnLine Bom 4568)

Commencement of judicial proceedings –consolidation of cases relating to same

offence – protest petitions – further investigations post the filing of charge sheet –
cognizance of offences by courts – limitations on the power to take cognizance –
procedures to deal with complaint cases – committal of cases to Sessions Court.
-Section 197 (very briefly)

Mandatory:
 Section 190-194, 200-210 The Code of Criminal Procedure 1973 Bare Act
Abhinandan Jha v. Dinesh Mishra AIR 1968 SC 117
Bhagwant Singh v. Commissioner of Police (1985) 2 SCC 537
Vinubhai Malaviya v. State of Gujarat (2019 14 SCALE 1)
Kishun Singh v. State of Bihar (1993) 2 SCC 16
DL Reddy v. VN Reddy (1976) 3 SCC 252 (overruled by Vinubhai)
HS Bains v. State (UT of Chandigarh) (1980) 4 SCC 631
Suggested:
Kewal Krishnan v. Suraj Bhan (1980) Supp. SCC 499

9 - 10 Framing of charge – basic rules – alteration of charge – conviction of an offence

not charged with – joinder of charges – effect of omission to frame or absence of or
error in charge-elements of fair trial.

 Section 211-228 The Code of Criminal Procedure 1973 Bare Act

Mandatory:
William Slaney v. State of Maharashtra AIR 1956 SC 116
UoI v. Prafulla K Samal (1979) 3 SCC 4
State of Orissa v. Debendra Nath Padhi (2005) 1 SCC 568

Suggested:
Justice V S Malimath Committee Report (2003)
Kamil v. State of UP, AIR 2019 SC 45
Ajmal Kasab v. State of Maharashtra, (2012) 9 SCC 1
Nitya Dharmananda v. Gopal Sheelum Reddy (2018) 2 SCC 93

11 - 12 Law of Bail – anticipatory bail – cancellation of bail – powers of magistrate,

appellate courts, and courts of revision.

Mandatory:
 Section 436-439, 441, 445 The Code of Criminal Procedure 1973 Bare Act
Gudikanti Narsimhulu v. Public Prosecutor (1978) 1 SCC 240
 Gurcharan Singh v. State AIR 1978 SC 179
Sushila Aggarwal v. State (NCT of Delhi) (2020 5 SCC 1)- anticipatory bail
P Chidambaram v. ED 2019 SCC OnLine SC 1549 (INX Media case)

Suggested:
State v. Jaspal Singh 1984 3 SCC 555
Sanjay Chandra v. CBI (2012) 1 SCC 40
Arnab Goswami v. State of Maharashtra (2020 SCC OnLine SC 964)
Gurbaksh Singh Sibbia v. State of Punjab 1978 CriLJ 20 (AB)
Taking Bail Seriously: The State of Bail Jurisprudence in India (select chapters)
Shah, M.G. and Chadha, V. (2021). Evolution of law on anticipatory bail in
India. Janus.net, E-journal of International Relations.12(1), 251-264.

13 – 14 Trial – summary trial – trial before court of sessions and magistrates – statements
Theory under Sec. 313 CrPC and its use – summoning additional accused.
mostly
 Section 225-265, 300-304, 309 313, 319, 320, 321 The Code of Criminal
Procedure 1973 Bare Act
Fair trial- s205+s317
Summoning of additional accused
Mandatory:
Hardeep Singh v. State of Punjab (2014) 3 SCC 92
Sukhpal Singh Khaira v. State of Punjab CRIMINAL APPEAL NO.885 OF
2019 (refer to relevant portions only)
Suggested:
Dharam Pal v. State of Haryana (2014) 3 SCC 306

Examination of accused u/s 313

Mandatory:
Nar Singh v. State of Haryana, (2015) 1 SCC 496
Suggested:
Tara Singh v. State, AIR 1951 SC 441

15 Judgment & Sentencing – requirements of judgments and finality – sentencing –

execution

 Section 353-362 The Code of Criminal Procedure 1973 Bare Act

Suggested: Mukhtiar Singh v. State of Punjab, (1995) 1 SCC 760

 OTHER TOPICS:

Appeals, Revision, and Reference, Powers of appellate courts, Transfer of cases,

Inherent powers of the High Court u/s 482, Remission/ Commutation of sentences,
Compounding of offences, Plea Bargaining and Double Jeopardy. -Not Important

Investigation, bail and framing of charges- most important.

Theory-trial
Choice 2/3 hypo 15m
2/3 theory 10m
If these three are covered then can easily solve paper.

Investigation is very important, including cases.

Arrest imp for theoretical questions
Trial - theoretical
Commencement of judicial proceeding - theoretical
Framing of charges imp - hypo
Bail - both hypo and theory
Section 167 ****

General diary, case diary, police diary, FIR register

Investigation, inquiry trial.

Investigation- FIR 154, 155 (3), 156, 157- occurrence report, keeping the magistrate informed
about the
Police questioning, witness, appearances- 161, 162 cannot statements singed,
169+170
All this culminates into a police report/ closure report
173- police repot or charge sheet. (8) gives police the right to
190
Accept 204, reject send back for further investigation under 156 3, Direct issue
Inquiry end when framing of charge.
Framing of charge shows beginning of trial. Before immediately exists discharge 227.
Modes of trial- session, warrant, (summon, summary) =short
S190 a Complaint-S200,202,203
S190 b Police report-S204

 State of Haryana vs Bhajan Lal [1992 Supp (1) SCC 335]

The Supreme Court has held in Bhajan Lal case that the High Court can quash the FIR to
protect the accused from malicious prosecution. It has quashed the criminal proceeding
against the Bhajan Lal, the then Chief Minister of Haryana. When a criminal proceeding is
instituted with mala-fide intention to harass the person, the court can quash the entire
proceeding for the ends of justice. The Supreme Court has issued seven guidelines which
should be followed by the High Court in the exercise of its inherent power vested by section
482 crpc to quash the pending criminal proceedings.

(1) Where the allegations made in the first information report or the 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.
(2) Where the allegations in the first information report and other materials, if any,
accompanying the FIR do not disclose a cognizable offence, justifying an investigation by
police officers under Section 156(1) of the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence
collected in support of the same do not disclose the commission of any offence and make
out a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only
a non-cognizable offence, no investigation is permitted by a police officer without an order
of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently
improbable on the basis of which no prudent person can ever reach a just conclusion that
there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the
concerned Act (under which a criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the
proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to private and personal grudge.
 Process to compel appearance & production of things.

Types of cases
There are two major processes to compel the appearance of persons before the criminal
courts:
 Summons A case relating to an offence, and not being a warrant case: Section 2(w)
 Warrants A case relating to an offence punishable with death, imprisonment for life,
or imprisonment for term exceeding two years: Section 2(x)
 Proclamation as absconder where warrant fails to take effect.
 Attachment and sale of property when absconder is not forthcoming.
 Taking a bond without sureties.

Owing to the relative seriousness of a warrants case, the chances of the accused absconding
are higher. As such, while in a summons case, summons are issues at the first instance to
procure the presence of the accused, in a warrant case, a warrant of arrest is issued for the
arrest of the accused. (Section 204)
Issue of warrant in a summons case: S. 87
Nothing in Section 204 is deemed to affect the provisions of Section 87

Section 204 – Issue of Process

• The expression “sufficient ground” used in Section 204 of the Code means that the
Magistrate must be satisfied that a prima facie case has been made out against the
person accused of committing the offence.
• The Magistrate need not be satisfied that the available evidence would lead to a
conviction.
• The Magistrate does not have to give reasons as to why he/she is accepting one
witness’s version over the other’s in deciding as to whether there is a prima facie case.
• If there is no prima facie case, the Magistrate may dismiss the complaint, but it is
mandatory to record the reasons for doing so.

Section 62: Service of summons

Section 64 & 65: Service when persons cannot be found.

Arrest
Arrest is the most effective method of ensuring an accused’s presence at trial;
However, it is neither desirable nor appropriate to use it in each and every case;
Two types of arrest:
1) Arrest with warrant-written order issued and signed by a magistrate and addressed to a
police officer or some other person specifically named, and commanding him to arrest the
body of the accused person named in it. Issuing a warrant is left to the discretion of the
Magistrate.
2) Arrest without warrant- section 41
Why arrest? Conditions to be satisfied under 41(1)(b)
• Arrest is necessary to prevent commission of further offences.
• Arrest is necessary to conduct a proper investigation.
• To prevent the tampering of evidence by the arrestee.
• To prevent the arrestee from making any inducement /threat/promise to any person so
as to restrain him from disclosing facts/giving information related to the case to the
police and/or Magistrate.
• To ensure the presence of the accused in court.

A ‘bailable’ warrant is a warrant that includes a direction that if the person arrested under the
warrant executes a bond and gives security for his attendance in court, he shall be released;
A ‘non-bailable’ warrant is any warrant other than a ‘bailable’ warrant;
A ‘bailable’ warrant can be issued both in the case of bailable and non-bailable cases;

Section 78-EXECUTING A WARRANT OF ARREST

Section 42. Arrest on refusal to give name and residence.

Section 43. Arrest by private person and procedure on such arrest
Section 44. Arrest by Magistrate
Section 45. Protection of members of the Armed Forces from arrest.
Under Section 56, person arrested to be produced before Magistrate or officer in charge
of police station without delay.
Under Section 57, person arrested without a warrant not to be detained for more than
twenty-four hours unless authorized by a special order of the Magistrate.
Under Section 76, person arrested under a warrant not to be detained for more than
twenty-four hours unless authorized by a special order of the Magistrate.
Production after 24 hours does not render custody illegal.
Detention beyond 24 hours may be ordered by the Magistrate.
Rationale: (i) to prevent arrest and detention as a means of extracting
confessions/information; (ii) to prevent the use of police stations as prisons; (iii) (and
most importantly) to afford an early recourse to a judicial officer independent of the
police on all questions of bail and discharge.
Post arrest procedures- S51 &52

Right to know grounds of arrest(s.50(1))

Right to be released on bail (s.50(2))

Rights of arrested person

Right to be taken before Magistrate without

delay(s.56, s.76)

Right of not being detained for more than 24

hours (s.57, Art. 22)

Right to consult legal practitioner (Article 22,

s.303)

Right to be examined by Medical practitioner

1. D.K. Basu v. State of W.B. Custodial death, guidelines to police

Under Section 41B, a memorandum of arrest attested by a member of the arrestee’s family or
a respected member of the locality.
Duty of police officer to inform arrestee that he has the right to have a relative or friend
named by him to be informed of the arrest.
Section 50A casts an obligation on the police to inform the person so named by the arrestee
about the place where the arrestee is being held.
Under Section 54 it is obligatory for the arresting authority to ensure that the arrestee is
examined by a medical officer even if it is against the wishes of the arrestee.
Section 55A: Duty of the person having custody of the accused to take reasonable care of the
health and safety of accused.
Facts- PIL- Deaths in police custody, Custodial Torture and Deaths by the Police
Need- formulate modalities for awarding compensation to the victim and/or family
members of the victim for atrocities and death caused in police custody and to provide for
accountability of the efforts are often made to hush up the matter of lock-up deaths and thus
the crime goes unpunished and "flourishes “
Need for suggestions for formulation of guidelines by this court to minimize, if not prevent,
custodial violence and kith and kin of those who die in custody on account of torture.
Whether monetary compensation should be awarded for established infringement of the
Fundamental Rights guaranteed by Articles 21 and 22 of the Constitution of India?
Does a citizen shed off his fundamental right to life, the moment a policeman arrests
him? Can the right to life of a citizen be put in abeyance on his arrest?1
These questions touch the spinal cord of human rights jurisprudence.
Held-Chapter V. of Criminal Procedure Code, 1973 deals with the powers of arrest of a person and the
safeguard which are required to be followed by the police to protect the interest of the arrested person.

Section 41, Cr. P.C. confers powers on any police officer to arrest a person under the
circumstances specified therein without any order or a warrant of arrest from a Magistrate.
Section 46 provides the method and manner of arrest. Under this Section no formality is
necessary while arresting a person.
Under Section 49, the police is not permitted to use more restraint than is necessary to
permitted to use more restraint than is necessary to prevent the escape of the person.
Section 50 enjoins every police officer arresting any person without warrant to communicate
to him the full particulars of the offence for which he is arrested and the grounds for such
arrest. The police officer is further enjoined to inform the person arrested that he is entitled to
be released on bail and he may arrange for sureties in the event of his arrest for a non-bailable
offence.
Section 56 contains a mandatory provision requiring the police officer making an arrest
without warrant to produce the arrested person before a Magistrate or Officer in charge of PS
without unnecessary delay.
Section 57 echoes Clause (2) of Article 22 of the Constitution of India. There are some other
provisions also like Section 53, 54 and 167 which are aimed at affording procedural
safeguards to a person arrested by the police. Whenever a person dies in custody of the police
Section 176 requires the Magistrate to hold and enquiry into the cause of death.
The Third Report of the National Police Commission in India expressed its deep concern
with custodial demoralizing effect with custodial torture was creating on the society as a
whole. It made some very useful suggestions. It suggested:

1
Violative of article 20(3), 21 & 14.
".......An arrest during the investigation of a cognizable case may be considered justified
in one or other of the following circumstances :-
(i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is
necessary to arrest the accused and bring his movements under restraint to infuse
confidence among the terror stricken victims.
(ii) The accused is likely to abscond and evade the processes of law.
(iii) The accused is given to violent behaviour and is likely to commit further offences
unless his movements are brought under restraint.
(iv) The accused is a habitual offender and unless kept in custody he is likely to commit
similar offences again. It would be desirable to insist through departmental instructions that
a police officer making an arrest should also record in the case diary the reasons for making
the arrest, thereby clarifying his conformity to the specified guidelines......"
Guidelines for arrest-
(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee
should bear accurate, visible and clear identification and name tags with their
designations. The particulars of all such police personnel who handle interrogation of the
arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a MEMO-
occurrence report of arrest at the time of arrest a such memo shall be attested by atleast
one witness. who may be either a member of the family of the arrestee or a respectable
person of the locality from where the arrest is made. It shall also be counter signed by the
arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a police
station or interrogation centre or other lock-up, shall be entitled to have one friend or
relative or other person known to him or having interest in his welfare being informed,
as soon as practicable, that he has been arrested and is being detained at the particular place,
unless the attesting witness of the memo of arrest is himself such a friend or a relative of the
arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the
police where the next friend or relative of the arrestee lives outside the district or town
through the Legal Aid Organisation in the District and the police station of the area
concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have someone informed of his
arrest or detention as soon he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of
the person which shall also disclose the name of the next friend of the person who has been
informed of the arrest the names and particulars of the police officials in whose custody the
arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and
major and minor injuries, if any present on his/her body, must be recorded at that time. The
"Inspection Memo" must be signed both by the arrestee and the police officer effecting
the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by trained doctor every 48
hours during his detention in custody by a doctor on the panel of approved doctors appointed
by Director, Health Services of the concerned Stare or Union Territory. Director, Health
Services should prepare such a penal for all Tehsils and Districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be
sent to the illaga Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not
throughout the interrogation.
(11) A police control room should be provided at all district and state headquarters,
where information regarding the arrest and the place of custody of the arrestee shall be
communicated by the officer causing the arrest, within 12 hours of effecting the arrest
and at the police control room it should be displayed on a conspicuous notice board.
On the aspect of compensation-
It is now a well accepted proposition in most of the jurisdictions, that monetary or
pecuniary compensation is an appropriate and indeed an effective and sometimes
perhaps the only suitable remedy for redressal of the established infringement of the
fundamental right to life of a citizen by the public servants and the State is vicariously liable
for their acts.
The claim of the citizen is based on the principle of strict liability to which the defence
of sovereign immunity is not available and the citizen must revive the amount of
compensation from the State, which shall have the right to be indemnified by the wrong
doer.
In the assessment of compensation, the emphasis has to be on the compensatory and not on
punitive element.
The objective is to apply balm to the wounds and not to punish the transgressor or the
offender, as awarding appropriate punishment for the offender, as awarding appropriate
punishment for the offence (irrespective of compensation) must be left to the criminal courts
in which the offender is prosecuted, which the State, in law, is duty bound to do.
That award of compensation in the public law jurisdiction is also without prejudice to any
other action like civil suit for damages which is lawfully available to the victim or the heirs of
the deceased victim with respect to the same matter for the tortious act committed by the
functionaries of the State.
The quantum of compensation will. of course, depend upon the peculiar facts of each
case and no strait jacket formula can be evolved in that behalf.

2. Joginder Kumar V State- Abuse of police power

Facts- A practising lawyer who was called to the PS in connection with a case under inquiry
was detained. On not receiving any satisfactory account of his whereabouts, the family
member of the detained lawyer preferred a petition in the nature of habeas corpus before the
Court. While police alleged that he was assisting them, the detenu asserted otherwise.
Held-considered the dynamics of misuse of police power of arrest and opined:
"No arrest can be made because it is lawful for the police officer to do so. The existence
of the power of arrest is one thing. The justification for the exercise of it is quite
another...No. arrest should be made without a reasonable satisfaction reached after some
investigation about the genuineness and bonafides of a complaint and a reasonable belief
both as to the person's complicity and even so as to the need to effect arrest. Denying a
person his liberty is a serious matter."
Obiter dictum-Transparency of action and accountability perhaps are two possible
safeguards which this Court must insist upon.
Attention is also required to be paid to properly develop work culture, training, and
orientation of police force consistent with basic human values.
The training methodology of the police needs restructuring. The force needs to be infused
with basic human values and made sensitive to the constitutional ethos.
Efforts must be made to change the attitude and approach of the police personal handling
investigations so that they do not sacrifice basic human values during interrogation and do
not resort to questionable forms of interrogation.
With a view to bringing in transparency, the presence of the counsel of the arrestee at some
point of time during the interrogation may deter the police from using third degree
methods during interrogation.
Need, therefore, is to develop scientific methods of investigation and train the
investigators properly to interrogate to meet the challenge.
It would be useful and effective to structure appropriate machinery for contemporaneous
recording and notification of all cases of arrest and detention to bring in transparency and
accountability. It is desirable that the officer arresting a person should prepare a memo of his
arrest on witness who may be a member of the family of the arrestee or a respectable person
of the locality from where the arrest is made. The date and time of arrest shall be recorded in
The memo which must also be counter signed by The arrestee.

3. Arnesh Kumar V State of Bihar- report furnished to magistrate before arrest.

Facts-In sum and substance, allegation levelled by the wife against the appellant is that
demand of Rupees eight lacs, a Maruti car, an air-conditioner, television set etc. was made by
her mother-in-law and father-in-law and when this fact was brought to the appellant’s notice,
he supported his mother and threatened to marry another woman. It has been alleged that she
was driven out of the matrimonial home due to non- fulfilment of the demand of dowry.
Held-
Our endeavor in this judgment is to ensure that police officers do not arrest accused
unnecessarily and Magistrate do not authorize detention casually and mechanically. To
ensure what we have observed above, we give the following direction:
All the State Governments to instruct its police officers not to automatically arrest when a
case under Section 498-A of the IPC2 is registered but to satisfy themselves about the
necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;
All police officers be provided with a check list containing specified sub- clauses
under Section 41(1)(b)(ii); The police officer shall forward the check list duly filed and
furnish the reasons and materials which necessitated the arrest, while forwarding/producing
the accused before the Magistrate for further detention.
The Magistrate while authorizing detention of the accused shall peruse the report furnished
by the police officer in terms aforesaid and only after recording its satisfaction, the
Magistrate will authorize detention; The decision not to arrest an accused, be forwarded to
the Magistrate within two weeks from the date of the institution of the case with a copy to the
Magistrate which may be extended by the Superintendent of police of the district for the
reasons to be recorded in writing;
Applicable to which cases? We hasten to add that the directions aforesaid shall not only
apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry
Prohibition Act, the case in hand, but also such cases where offence is punishable with
imprisonment for a term which may be less than seven years or which may extend to
seven years; whether with or without fine.
SEARCH AND SEZURE

Summons to produce (s.91 -

92)
HOW AFFECTED

Issue of warrant for general

search of any place – Search
Warrants (s.93 - 98)

General Provisions related

to Search (s.99 – 101)

Seizure and other provisions

(s. 102- 105)

PROCESS TO COMPEL PRODUCTION OF THINGS - SEARCH AND SEIZURE

2
[Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty
shall be punished with imprisonment for a term which may extend to three years and shall also be liable to
fine.
Section 91- Summons to produce a document or other thing. Can a summons or order under
this section include an ACCUSED person? - Section 91 does not apply to the accused
Article 20(3) of the constitution: No person accused of any offence shall be compelled to be a
witness against himself: includes incriminating documents based on personal knowledge.
Hence, he cannot be forced to produce such documents.
1. V S Kuttan Pillai v. Ramakrishnan- s91(3)- right to search is self-incrimination?
Issue- On the advent of the Constitution, and especially in view of the provision
contained in Art. 20(3), Courts were faced with a problem whether the person referred to
in s. 91(1) of the Code would include an accused. In other words, the question was
whether a summons can be addressed to the accused calling upon him to produce any
document which may be in his possession or power and which is necessary or
desirable for the purpose of an investigation, inquiry, trial, etc. in which such person
was an accused person.
The wider question that was raised soon after the enforcement of the Constitution
was whether search of the premises occupied or in possession of a person accused of
an offence or seizure of anything therefrom would violate the immunity from self-
incrimination enacted in Article 20(3)
The expression 'person' in s. 91(1) (new Code) does not take within its sweep a person
accused of an offence which would mean that a summons issued to an accused person to
produce a thing or document considered necessary or desirable for the purpose of an
investigation, inquiry or trial would imply compulsion and the document or thing so
produced would be compelled testimony and would be violative of the constitutional
immunity against self-incrimination.
Held- A search warrant under s. 93(1)(a) could only be issued where a summons
could have been issued under s. 91(1) but the same would not be issued on an
apprehension that the person, to whom the summons is directed would not comply with
the same and, there- A fore, in order to obtain the document or thing to produce which the
summons was to be. issued, a search warrant may be issued under s. 93 (1) (a). Section
93, however, also envisages situations other than one contemplated by s. 93(1)(a) for
issuance of a search warrant. It must be made distinctly clear that the present search
warrant is not issued under s. 93 (1) (a).
Section 93(1) (c) of the new Code comprehends a situation where the Court may issue
a search warrant when it considers that the purpose of an inquiry, trial or other
proceeding under the Code will be served by a general search or inspection to search,
seize and produce the documents mentioned in the list. When such a general search
warrant is issued, in execution of it the premises even in possession of the accused
can be searched and documents found therein can be seized irrespective of the fact
that the documents may contain some statement made by the accused upon his
personal knowledge and which when proved may have the tendency to incriminate
the accused. However, such a search and seizure pursuant to a search warrant issued
under s. 93(1) (c) will not have even the remotest tendency to compel the accused to
incriminate himself. He is expected to do nothing. He is not required to participate in the
search. He may remain a passive spectator. He may even remain absent. Search can be
conducted under the authority of such warrant in the presence of the accused. Merely
because he is occupying the premises which is to be searched under the authority of the
search warrant it cannot even remotely be said that by such search and consequent seizure
of documents including the documents which may contain statements attributable to the
personal knowledge of the accused and which may have tendency to incriminate him,
would violate the constitutional guarantee against self- incrimination because he is not
compelled to do anything. A passive submission to search cannot be styled as a
compulsion on the accused to submit to search and if anything is recovered during
search which may provide incriminating evidence against the accused it cannot be
styled as compelled testimony. This is too obvious to need any precedent in support. The
immunity against self- crimination extends to any incriminating evidence which the
accused may be compelled to give. It does not extend to cover such situation as where
evidence which may have tendency to incriminate the accused is being collected without
in any manner compelling him or asking him to be a party to the collection of the
evidence. Search of the premises occupied by the accused without the accused being
compelled to be a party to such search would not be violative of the constitutional
guarantee enshrined in Article 20(3). .
Facts- The appellant and his co-accused are office bearers of a public institution styled as
H.M.D.P. Sabha. We were informed at the hearing of this petition that this Sabha is a
public institution engaged in the activity of running educational institutions and
supporting objects or activities of a general charitable nature.
When the first complaint was filed, the allegation therein was that criminal breach of
trust in respect of funds of the public institution has been committed by the office
bearers thereof.
A search warrant was issued but it was quashed by the Kerala High Court. Thereafter an
other complaint was filed making some more serious allegations and a search warrant was
sought. Now, this search warrant is being issued to conduct search of the premises
used as office of an institution. The place will be in possession of the institution. The
office bearers of the Sabha are accused of an offence. Documents and books of
accounts of the institution are required for the purpose of the trial against the office
bearers of the institution. The office premises could not be said to be in possession of
any individual accused but stricto sensu it would be in possession of the institution.
Books of accounts and other documents of the institution could not be said to be in the
personal custody or possession of the office bearers of the institution but they are in
possession of the institution and are lying in the office of the institution.
A search of such a public place under the authority of a general search warrant can easily
be sustained under s. 93(1)(c). If the order of the learned Magistrate is construed to mean
this, there is no, illegality committed in issuing a search warrant. Of course, issuance of a
search warrant is a serious matter, and it would be advisable not to dispose of an
application for search warrant in a mechanical way by a laconic order. Issue of search
warrant being in the discretion of the Magistrate it would be reasonable to expect of the
Magistrate to give reasons which swayed his discretion in favour of granting the
 request. A clear application of mind by the learned Magistrate must be discernible
in the order granting the search warrant. Having said this, we see no justification
for interfering with the order of the High Court in this case. HC was correct in
sustaining the general search warrant under the section 93(1) (c) of the Criminal
Procedure Code.
Held in short-In the present case, it had been discussed that the immunity conferred
to a charged individual against self- incrimination extends to any piece of
inculpatory evidence which the individual could also be forced to overthrow.
However, it fails to hide such a situation during which the knowledge capable of
conferring an individual as an accused is obtained from himself without forcing him
in any manner or telling him to be a significant part to the collection of such
evidences. Accordingly, it had been concluded that the search which is made of the
premises which is occupied by the accused person without the accused being forced
to be a part to such search, would fail to be in violation of the fundamental right
conferred by Article 20(3) of the Indian Constitution.

2. Virendra Khanna v. State of Karnataka- mere silence does not amount to

consent.
Whether the order dated 23.09.2020 passed by the Trial Court directing the Petitioner
to undergo a polygraph test violates the rights of the Petitioner under Article 20 of the
Constitution of India?
19.1.The Trial Court, by its order dated 29.03.2020, had directed the administration of
polygraph test on the Petitioner. This order was passed on an oral request without there
being an application filed by the prosecution and no opportunity having been provided to
either the Petitioner or his counsel. The Petitioner was also not heard on the same nor was his
consent obtained by the trial Court before the order dated 23.09.2020 was WP
No.11759/2020 passed.
In the present case, the Petitioner having not consented to administration of a polygraph test
and in fact having challenged the same, refusing the administration thereof, had categorically
indicated that he does not wish to be subjected to a polygraph test, I am of the considered
opinion that no polygraph test could be administered on the Petitioner. 19.7.Hence, I answer
the above question by holding that no polygraph test can be administered without
obtaining the consent of the person to whom the polygraph test is to be administered.
19.8.An application if any for such polygraph test has to be served on the said person on
whom the polygraph test is to be administered, as also on the lawyer of the said person if so
appearing. The effect and impact of the polygraph test and any answers given during the
conduct of the polygraph test has to be clearly made known to the said person. The
consent in writing to be obtained from such person before directing the administration
of the polygraph test. Mere silence of the said person would not amount to consent on
behalf of such person. If a person were to refuse the administration of polygraph test,
no such polygraph test could be administered and even if administered, the result of the
said test would be void and cannot be considered by a Court of Law.
 3. Abinav sekhri- https://www.theindiaforum.in/law/digital-devices-and-criminal-
investigations
Furnishing of passwords-The Petitioner refused to disclose the password of his Mobile Phone
and e-Mail addresses. The Hon'ble Trial Court, by an order dated WP No.11759/2020
04.09.2020, directed the Petitioner to co- operate and furnish the password to the
investigating officer.
It is contended that the direction of the Trial Court to the Petitioner to co-operate with
the Investigating Officer and to unlock the mobile password is legal. Unlocking the
mobile password does not amount to self- incrimination, nor does it violate Article
21 and 22 of the Constitution of India; unlocking mobile phone and/e-mails by furnishing a
password does not amount to self- incrimination.
Held-
The contention of the Petitioner that the mobile phone contains his personal information
which is protected under Right to Privacy cannot be accepted, the order of the Trial Court
directing the Petitioner to co- operate in unlocking the mobile phone does not violate the
Right to Privacy and does not amount to testimonial compulsion. 3.8. The Petitioner has not
given the password of his mobile phone, or e-mail account, did not co-operate in the
investigation; hence, the direction given by the Trial Court to unlock the mobile password of
e-Mail addresses is justified and has not violated any rule of Law. The direction issued by the
Trial Court to reveal the password to unlock his mobile phone and to open his e-Mail
accounts does not amount to compelling him to be a witness against himself, nor does it
violate Section 161 (2) of the Code of Criminal Procedure. 3.9. Insisting upon the Petitioner
for access to the data contained in his mobile phone does not amount to force him to reveal
his personal information nor does it amount to self- incrimination.
Obiter dictum-
There are several provisions in the Code of Criminal Procedure, 1973 as well as the Indian
Evidence Act, 1872 that empowered the Trial Court to direct the Petitioner to disclose the
password.

Section 139 of the Indian Evidence Act itself provides that a person may be summoned to
produce a "document". The term "evidence" has been defined in Section 3 of the Indian
Evidence Act inter al i a to mean " al l documents including electronic records". Therefore,
the term "document" used in Section 139 of the Indian Evidence Act includes any electronic
record in possession of the Petitioner. Thus, Section 139 of the Indian Evidence Act
authorises the disclosure of the password by the Petitioner and hence the order dated
14.09.2020 does not abridge Petitioner's right to privacy under Article 21 of the Constitution
of India.
5.15. That apart, Section 54-A of the Code of WP No.11759/2020 Criminal Procedure, 1973
inter alia stipulates that, 5.15.1. where a person is charged with committing an offence; and
5.15.2. his identification is necessary for the purpose of investigation of an offence, the Court
may direct the person so arrested to subject himself to identification by any person as the
Court deems fit.
5.16. In the present case, the password is nothing but an 'identification mark' of the Accused/
Petitioner by the service providers hosting his data. Therefore, the disclosure of the password
is sanctioned by Law under Section 54-A of the Code.
The disclosure of password is in the nature of giving specimen signatures or handwriting.
Therefore, the disclosure of password can also be ordered.
Brief holding-Can a direction be issued to an accused to furnish the password, passcode
or Biometrics in order to open the smartphone and/or email account?
The Investigating Officer, during the course of an investigation, could always issue any
direction and/or make a request to the accused or other persons connected with the matter to
furnish information, to provide material objects or the like. These directions are routine in
any investigation. Thus, during the course of the investigation, the Investigating Officer could
always request and/or direct the accused to furnish the password, passcode or Biometrics,
enabling the opening of the smartphone and/or email account. It is up to the accused to
accede to the said request and or directions. If the accused were to provide such a password,
passcode or Biometrics, the Investigating Officer could make use of the same and gain an
access to the same.
Court cannot issue a suo moto order to the accused to furnish a password, passcode or
Biometrics.
In the event of a direction being issued and the accused not furnishing the password,
passcode or Biometrics, what is the recourse available to an Investigating Officer?
In the event of the accused not providing the password, passcode or Biometrics, the
Investigating Officer can approach the Court seeking for necessary directions to the accused
to provide the same and/or carry out a search of the smartphone or any electronic equipment.
The Investigating Officer could approach the concerned Court seeking for issuance of a
search warrant to carry out a search of the smartphone and/or electronic equipment.

What is the consideration for the issuance of a search warrant in order to search a
smartphone or computer system?
The requirement for a search of a smartphone and/or electronic instrument could arise under
two circumstances. 1. Emergent circumstances 2. During the regular ordinary course of the
investigation.
A search and seizure of a smartphone can also be permitted in terms of the above provisions
as contained in the Cr. P.C. As observed above, in terms of Section 100 of Cr.P.C., even a
closed place can be searched by the persons searching directing any person in charge of a
place to open the same and provide all facility. It is in the background of the above provisions
that the aspect of search of a smartphone or electronic equipment, including an e-mail
account will have to be considered.
Search and Seizure in Emergent circumstances
It may happen that there may arise certain emergencies or exigencies for a search of a
smartphone or electronic equipment to be carried out like if the data is going to be
immediately destroyed, there is a danger of equipment itself being destroyed, the possibility
of the equipment not being available, etc. In terms of Section 102 of Cr.P.C., if there are any
emergency circumstances, the Police Officer could seize the equipment; if there is any
suspicion that either the object has been stolen or which create suspicion of commission
of any offence.

Would providing a password, passcode or Biometrics amount to self-incrimination or

testimonial compulsion?
As regards the contention that providing of the password/pass code will amount to
testimonial compulsion, there is no testimony which is given by the accused by providing
the said password, passcode or biometrics by which the document is being accessed by
the Investigating officer.
The XI Judge Bench of the Apex Court in Kathi Kalu Oghad's case has categorically held
that providing of a thumb impression or impression of the palm or foot or fingers or specimen
in writing or exposing a part of the body of an accused person for the purpose of
identification would not amount to testimonial compulsion.
Mere providing of an access of to smartphone or e-mail account would not amount to being a
witness, the information that is accessed by the Investigating officer on the smartphone and
or the e-mail account being only access to th e data and/or documents, it is for the
Investigating officer to prove and establish the same in a Court of Law by following the
applicable Rules of evidence.
14.3. Merely because any document is present or available on the smartphone and or the e-
mail account would not by itself establish the guilt or innocence of an accused. Both the
prosecution, as also the accused/defence would be required to prove the said document or
data by other evidence also.

Commencement of Judicial Proceedings

In general, "cognizance" is defined as "knowledge or notice," while "taking cognizance of
offences" is defined as "taking cognizance of the alleged commission of an offence i.e. to
take note judicially.
Before beginning to conduct the trial, the judicial officer must take cognizance of the offence.
Taking cognizance does not entail any formal actions; rather, it happens as soon as a
magistrate applies his or her judgement to the alleged commission of an offence in order
to initiate legal action subsequently under s. 200,202,204 towards inquiry and trial.
Therefore, taking cognizance is referred to as applying the judicial mind.
However, when a Magistrate applies his mind not for the purpose of proceeding to take
subsequent steps but for acting of some kind for example ordering investigation under
156(3) / issuing a search warrant for investigation purposes he cannot be said to have
taken cognizance of the offence.
Taking cognizance includes INTENTION OF INITIATING a judicial proceeding against an
offender in respect of an offence to see whether there is a BASIS for initiating a judicial
proceeding.
A private citizen has two ways of initiating a proceeding –FIR / Complaint.
When a complaint is filed before the Magistrate, the Magistrate may order an investigation.
In such a situation a question arises as to whether the Magistrate had taken cognizance of
offence on COMPLAINT before sending it to investigation or whether the case was sent to
police before cognizance and cognizance was taken on the police report submitted?
It is well settled that when a complaint has been filed and whether the magistrate has taken
cognizance of the offence u/s 190(1)(a) depends on the PURPOSE for which he applies his
mind.
If the purpose is to proceed with the complaint under 200-203, he must've taken
cognizance. But if he applies his mind for ordering investigation under 156(3) or for issuing
search warrant under 93, he cannot be said to have taken cognizance.

S190- 194
S190(b)- police report/ charge sheet
1. Abhinandan Jha v Dinesh Mishra
Issue- Whether a Magistrate can direct the police to submit a charge-sheet, when the
police, after the investigation into a cognizable offence, had submitted a final report, under S.
173??
The power under s. 190(1)(c) was intended to Secure that offences may not go unpunished
and justice may be invoked even where persons individually aggrieved are unwilling or
unable to prosecute, or he police either want only or through a bona, fide error do not submit
a charge-sheet. But the magistrate cannot direct the Police to submit a charge- sheet,
because the submission of the report depends entirely upon the opinion formed by the police
and not on the opinion of the magistrate. The magistrate, if he disagrees with the report of
the police, can. himself take cognizance of the offence under s. 19O(1)(a) or (c), but
cannot compel the police to form a particular opinion on investigation and submit a
report according to such opinion.

The High Courts of Madras, Calcutta, Madhya Pradesh, Assam and Gujarat have taken the
view that the Magistrate has no such power, whereas, the Patna and Bombay High Courts
have held a contrary view.
Facts-The respondent, Dinesh Mishra, lodged an FIR, at the Rajoun Police Station, that he
saw a thatched house, of one Uma Kant Misra, situated on the northern side of his house,
burning, and the petitioners herein., running away from the scene.
The police made an investigation and submitted what is called a 'final report', under s. 173 to
the effect that the offence complained of, was false.
The respondent had filed what is termed 'a protest petition', challenging the correctness of the
report submitted by the police.
Held-The Magistrate appears to have perused the police diary and, after hearing the counsel
for the respondent and the public prosecutor, passed an order, directing the police to submit a
charge sheet, against the petitioners, herein.
The petitioners challenged this order, without success, both before the learned Sessions
Judge, Bhagalpur, and the Patna High Court.
It was held by the High Court, following its previous decision, that the Magistrate has
jurisdiction to call for a charge-sheet, when he disagrees with the report submitted by
the police, under 173.
The second respondent filed a 'protest petition' in Court, challenging the statements of the
police and he also filed a complaint, under s. 498 I.P.C.
The Magistrate, after a perusal of the case diary of the police, and hearing the lawyer for the
appellants and the second respondent, as also the public prosecutor, passed an order directing
the investigating officer to submit a charge-sheet, against the accused persons.
This order has been confirmed by the, learned Sessions Judge, as well as the Patna High
Court. Here also, the Patna High Court, in accordance with its previous decision, held that
the Magistrate had jurisdiction to pass the order, in question. All these orders are
challenged by the appellants, in this appeal.

Key holding-
• To conclude, there is no power, expressly or impliedly conferred, under the Code, on
a Magistrate to call upon the police to submit a charge-sheet, when they have sent a
report under s. 169 of the Code, that there is no case made out for sending tip an
accused for trial.
• Therefore, while holding that the orders of the Magistrate, in each of these cases,
directing the police to file charge-sheets, is Without jurisdiction, we make it clear that
it is open to the Magistrate to treat the respective protest petitions, as complaints, and
 take further proceedings, according to law, and in the light of the views expressed by
us, in this judgment.

Held-On behalf of the appellants it was pointed out that when a final report is
submitted by the police, under S. 173(1) of the Code, stating that no case is made out,
the Magistrate has no jurisdiction to direct the police to file a charge-sheet.
It may be open, counsel points out, to the Magistrate, to direct further investigation to be
made by the police, or to treat the protest petition filed by the second respondent, as a
complaint, and take cognizance of the offence and proceed, according to law.
s. 190, which is the first section in the group of sections headed 'Conditions requisite for
Initiation of Proceedings.' Sub-s. (1), of this section, will cover a report sent, under s. 173.
The use of the words 'may take cognizance of any offence', in sub-s. (1) of s. 190 in the SC’s
opinion imports the exercise of a 'judicial discretion', and the Magistrate, who receives the
report, under s.. 173, will have to consider the said report and judicially take a decision,
whether or not to take cognizance of the offence. From this it follows that it is not as if that
the Magistrate is bound to accept ,,the opinion of the police that there is a case for
placing the accused, on trial. It is open to the Magistrate to take the view that the facts
disclosed in the report do not make out an offence for taking cognizance or he may take
the view that there is no sufficient evidence to justify an accused being put on trial. On
either of these grounds, the Magistrate will be perfectly justified in declining to take
cognizance of an offence, irrespective of the opinion of the police.
On the other hand, if the Magistrate agrees with the report, which is a charge-sheet submitted
by the police, no difficulty whatsoever is caused, because he will have full jurisdiction to take
cognizance of the offence, under s. 190(1)(b) of the Code. This will be the position when the
report under s. 173, is a charge-sheet.

What is the position, when the Magistrate is dealing with a report submitted by the
police, under s. 173, that no case is made out for sending up an accused for trial, which
report, as we have already indicated, is called, in the area in question, as a 'final
report'?
Even in those cases, if the Magistrate agrees with the said report, he may accept the final
report and close the proceedings.
But there may be instances when the Magistrate may take the view, on a consideration of the
final report, that the opinion formed by the police is not based on a full and complete
investigation, in which case in our opinion the Magistrate will have ample jurisdiction to give
directions to the police, under s. 156 ( 3 ), to make a further investigation. That is, if the
Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or
incomplete, or that there is scope for further investigation, it will be open to the Magistrate to
decline to accept the final report and direct the police to make further investigation, under s.
156(3). The police, after such further investigation, may submit a charge-sheet, or,, again
submit a final report, depending upon the further investigation made by them.
 If, ultimately, the Magistrate forms the opinion that the facts, set out in the final report,
constitute an offence, he, can take cognizance of the offence under s. 190(1) (c),
notwithstanding the contrary opinion of the police, expressed in the final report.

In this connection, the provisions of S. 169 of the Code, are relevant. They specifically
provide that even though, on investigation, a police officer, or other investigating officer, is
of the opinion that there is no case for proceeding against the accused, he is bound, While
releasing the accused, to take a bond from him to appear, if and when required, before a
Magistrate.
This provision is obviously to meet a contingency of the Magistrate, when he considers the
report of the investigating officer, and judicially takes a view different from the police
whether or not there is a case to place the accused on trial before a Magistrate, is 'left to the
officer in-charge of the police station. There is no express power, so far as we can see,
which gives jurisdiction to pass an order of nature under attack; nor can any such
powers be implied. There is certainly no obligation, on the Magistrate, to accept the
report, if he does not agree with the opinion formed by the police. Under those
circumstances, if he still suspects that an offence has been committed, he is entitled,
notwithstanding the opinion of tile police, to take cognizance, under S. 190(1)(c) of the Code.
Therefore, a very wide power is conferred on the Magistrate to take cognizance of an offence
not only when he receives information about the commission of an offence from a third
person, but also where he has knowledge or even suspicion that the offence has been
committed. It is open to the Magistrate to take cognizance of the offence, under s. 190(1) (c),
on the ground that, after having due regard to the final report and the police records placed
before him, be has reason to suspect that an offence has been committed.
Therefore, these circumstances will also clearly negative the power of a Magistrate to call for
a charge-sheet from the police, when they have submitted a final report.
The entire scheme of Chapter XIV clearly indicates that the formation of the opinion, as to
whether or not there is a case to place the accused for trial, is that of the officer in-charge of
the police station and that opinion determines whether the report is to be under s. 170, being a
'charge- sheet', or under S. 169, 'a final report’.
It is no doubt open to the Magistrate, as we have already pointed out, to accept or disagree
with the opinion of the police and, if he disagrees, he is entitled to adopt any one of the
courses indicated by us. But he cannot direct the police to submit a charge sheet, because, the
submission of the report depends upon the opinion formed by the police, and not on the
opinion of the Magistrate.
The Magistrate cannot compel the police to form a particular opinion on the investigation,
and to submit a report, according to such opinion. This will be really encroaching on the
sphere of the police and compelling the police to form an opinion so as to accord with the
decision of the Magistrate and send a report, either under s. 169, or under s. 170, depending
upon the nature of the decision. Such a function has been left to the police, under the Code.

2. Bhagwant Singh v. Comm’r of Police- sub-section (2)(i) of Section 173

Facts- Gurinder Kaur died as a result of burns received by her and allegedly she was burnt by
her husband and his parents on account of failure to satisfy their demand for dowry. The
circumstances in which Gurinder Kaur met with her unnatural death were investigated by the
Central Bureau of Investigation and a report was filed by the Central Bureau of Investigation
in the court of the Chief Metropolitan Magistrate on 11th August, 1982 stating that in their
opinion in respect of the unnatural death of Gurinder Kaur no offence appeared to have
been committed.
The petitioner was however not aware that such a report had been submitted by the
Central Bureau of Investigation and he, therefore, brought an application for initiating
proceedings for contempt against the Central Bureau of Investigation on the ground that
the Central Bureau of Investigation had not completed their investigation and submitted
their report within the period stipulated by the Court by its earlier order.
Issue- Whether in cases of this kind, the first informant or any relative of the deceased or any
other aggrieved person is entitled to be heard at the time of consideration of the report by
the Magistrate and whether the Magistrate is bound to issue notice to any such person, is a
question of general importance which is likely to arise frequently in criminal proceedings.
Whether in a case where First Information Report is lodged and after completion of
investigation initiated on the basis of the First Information Report, the police submits a report
that no offence appears to have been committed, the Magistrate can accept the report and
drop the proceeding without issuing notice to the first informant or to the injured or in case
the incident has resulted in death, to the relatives of the deceased.
Held- Sub-section (2)(i) of Section 173 provides that as soon as investigation is completed,
the officer in charge of a police station shall forward to the magistrate empowered to take
cognizance of the offence on a police report, a report in the form prescribed by the State
Government setting out various particulars including whether, in the opinion of the officer,
as offence appears to have been committed and if so, by whom
Sub-section (2)(ii) of Section 173 states that the officer shall also communicate, in such
manner as may be prescribed by the State Government, the action taken by him to the
person, if any, by whom the information relating to the commission of the offence was first
given.
When an informant lodges the First Information Report with the officer-in- charge of a
police station he does not fade away with the lodging of the First Information Report.
He is very much concerned with what action is initiated by the officer in charge of the police
station based on the First Information Report lodged by him. On sooner he lodges the First
Information Report, a copy of it has to be supplied to him, free of cost, under sub-
section (2) of Section 154.
If notwithstanding the First Information Report, the officer-in-charge of a police station
decides not to investigate the case on the view that there is no sufficient ground for entering
on an investigation, he is required under sub-section (2) of Section 157 to notify to the
informant the fact that he is not going to investigate the case because it to be investigated.
Then again, the officer in charge of a police station is obligated under sub-section(2)(ii)
of Section 173 to communicate the action taken by him to the informant and the report
forwarded by him to the magistrate under sub- section (2)(i) has therefore to be supplied by
him to the informant.
The question immediately arises as to why action taken by the officer in charge of a
police station on the First Information Report is required to be communicated and the
report forwarded to the Magistrate under sub-section (2)(i) of Section 173 required to
be supplied to the informant.
When the report forwarded by the officer-in charge of a police station to the Magistrate under
sub-section (2)(i) of Section 173 comes up for consid[-mseration by the Magistrate, one of
two different situations may arise. The report may conclude that an offence appears to have
been committed by a particular person or persons and in such a case, the Magistrate may do
one of three things: Similarly if no offences appear to be committed.
 he may accept the report and take cognizance of the offence and issue process
 he may disagree with the report and drop the proceeding
 he may direct further investigation under sub-section (3) of Section 156 and require
the police to make a further report.
REASON-
If the Magistrate decides to take cognizance of the offence and to issue process, the
informant is not prejudicially affected nor is the injured or in case of death, any relative of
the deceased aggrieved, because cognizance of the offence is taken by the Magistrate, and it
is decided by the Magistrate that the case shall proceed.
But if the Magistrate decides that there is no sufficient ground for proceeding further and
drops the proceeding or takes the view that though there is sufficient ground for proceeding
against some, there is no sufficient ground for proceeding against others mentioned in the
First Information Report, the informant would certainly be prejudiced because the First
Information Report lodged by him would have failed of its purpose, wholly or in part.
Moreover, when the interest of the informant in prompt and effective action being taken on
the First Information Report lodged by him is clearly recognised by the provisions contained
in sub-section (2) of Section 154, sub- section (2) of Section 157 and sub-section (2)(ii)
of Section 173, it must be presumed that the informant would equally be interested in
seeing that the Magistrate takes cognizance of the offence and issues process, because
that would be culmination of the First Information Report lodged by him.
There can, therefore, be no doubt that when, on a consideration of the report made by the
officer in charge of a police station under sub-section (2)(i) of Section 173, the Magistrate is
not inclined to take cognizance of the offence and issue process, the informant must be
given an opportunity of being heard so that he can make his submissions to persuade
the Magistrate to take cognizance of the offence and issue process. (PROTEST
PETITION)
Held in short- The SC was accordingly of the view that in a case where the magistrate to
whom a report is forwarded under sub-section (2)(i) of Section 173 decides not to take
cognizance of the offence and to drop the proceeding or takes the view that there is no
sufficient ground for proceeding against some of the persons mentioned in the First
Information Report, the magistrate must give notice to the informant and provide him an
opportunity to be heard at the time of consideration of the report.
the First Information Report has to be communicated to the informant and a copy of
the report has to be supplied to him under sub-section (2) (i) of Section 173 if that be so,
we do not see any reason why it should be difficult to serve notice of the consideration of the
report on the informant.
The difficulty of service of notice on the informant cannot possibly provide any justification
for depriving the informant of the opportunity of being heard at the time when the report is
considered by the Magistrate.
Whether the injured person or a relative of the deceased, who is not the informant, is
entitled to notice when the report comes up for consideration by the Magistrate?
The injured person or any relative of the deceased, though not entitled to notice from
the Magistrate, has locus to appear before the Magistrate at that time of consideration
of the report, if he otherwise comes to know that the report is going to be considered by
the Magistrate and if he wants to make his submissions in regard to the report, the
Magistrate is bound to hear him.

4. HS Bains v. State(1980) 4 SCC 631 -190(1) b

Facts- Gurnam Singh a resident of Chandigarh submitted a complaint to the JMFC
Chandigarh, alleging that the appellant H. S. Bains accompanied by two persons had come to
his house in a car on the morning of August, trespassed into the house and threatened to
kill him and his natural son if he did not take away his natural son Aman Deep Singh
from the house of his sister Bakshish Kaur, who had taken the boy in adoption as she
was issueless.
Bakshish Kaur was the widow of the brother of the appellant and the adoption made by
Bakshish Kaur was not to the liking of the appellant.
It was alleged in the complaint that the appellant was armed with a revolver which he pointed
at the complainant. The complainant raised a hue and cry. The accused and his companions
fled away in their car.
As August 11, 1979 and August 12, 1979 were holidays, he was able to file the complaint
only on 13th August, 1979.
The learned Magistrate to whom the complaint was submitted ordered an investigation by the
police under Sec. 156(3) Cr.PC
The police, after completing the investigation, submitted a report to the Magistrate under Sec.
173 stating that the case against the appellant was not true and that it might be dropped.
The police arrived at the conclusion that the case against the appellant was not true as their
investigation revealed, according to them, that the appellant was at Amritsar with Shri Jai
Singh, District Magistrate of Amritsar at 9 a.m. on August 11, 1979 and it was, therefore,
impossible for him to have been at Chandigarh at 8 a.m. on August 11, 1979.
The learned Magistrate after perusing the report submitted by the police disagreed with
the conclusion of police, took cognizance of the case under Sections 190 of the Indian Penal
Code and directed the issue of process to the appellant.
Aggrieved by the issue of process, the appellant filed Criminal Miscellaneous Case, in the
High Court of Punjab and Haryana to quash the proceedings before the Magistrate.
The application was dismissed by the High Court and the appellant filed a petition for the
grant of special leave to appeal against the order of the High Court.
The SC granted Special Leave and straightaway heard the appeal with the consent of the
parties.
Appellate contentions- Aggrieved by the issue of process, the appellant filed Criminal
Miscellaneous Case, in the High Court of Punjab and Haryana to quash the proceedings
before the Magistrate.
The application was dismissed by the High Court and the appellant filed a petition for the
grant of special leave to appeal against the order of the High Court.
The SC granted Special Leave and straightaway heard the appeal with the consent of the
parties.
Process for s173
In the circumstances of the case, the Magistrate, on receipt of the report under Sec. 173 to the
effect that the case against the accused was not proved, had only two options before him. He
could either:
order a further investigation or he could take cognizance of the case as if upon a complaint.
record the statements of the complainant and witnesses under Sec. 200 and then proceed to
issue process if he was satisfied that process ought to be issued.
It was submitted that the order of the Ist Class Magistrate taking cognizance of the case was
so unjudicial that it ought to be struck down.
SC observation on commencement of judicial proceedings-
On receipt of a complaint a Magistrate has several courses open to him :
• He may take cognizance of the offence and proceed to record the statements of the
complainant and the witnesses present under Sec. 200.Thereafter, if in his opinion
there is no sufficient ground for proceeding he may dismiss the complaint under
Sec. 203.
• If in his opinion there is sufficient ground for proceeding he may issue process
under Sec. 204.
• However, if he thinks fit, he may postpone the issue of process and either enquire
into the case himself or direct an investigation to be made by a Police Officer or
such other person as he thinks fit for the purpose of deciding whether or not there is
sufficient ground for proceeding. He may then issue process if in his opinion there is
sufficient ground for proceeding or dismiss the complaint if there is no sufficient
ground for proceeding.
 • On the other hand, in the first instance, on receipt of a complaint, the Magistrate
may, instead of taking cognizance of the offence, order an investigation under
Sec. 156(3).
• The police will then investigate and submit a report under Sec. 173(1). On receiving
the police report the Magistrate may take cognizance of the offence under Sec.
190(1)(b) and straightaway issue process.
• This he may do irrespective of the view expressed by the police in their report
whether an offence has been made out or not. The Police report under Sec. 173 will
contain the facts discovered or unearthed by the police and the conclusion drawn by
the police therefrom.
• The Magistrate is not bound by the conclusions drawn by the Police and he may
decide to issue process even if the Police recommend that there is no sufficient
ground for proceeding further.
• The Magistrate after receiving the Police report, may, without issuing process or
dropping the proceeding decide to take cognizance of the offence on the basis of the
complaint originally submitted to him and proceed to record the statements upon oath
of the complainant and the witnesses present under Sec. 200 Criminal Procedure
Code
• and thereafter decide whether to dismiss the complaint or issue process. The mere fact
that he had earlier ordered an investigation under Sec. 156(3) and received a report
under Sec. 173 will not have the effect of total effacement of the complaint and
therefore the Magistrate will not be barred from proceeding under Sections
200, 203 and 204.
Thus, a Magistrate who on receipt of a complaint, orders an investigation under Sec.
156(3) and receives a police report under Sec. 173(1), may, thereafter, do one of three
things:
• (1) he may decide that there is no sufficient ground for proceeding further and drop
action.
• (2) he may take cognizance of the offence under Sec. 190(1)(b) on the basis of the
police report and issue process; this he may do without being bound in any manner by
the conclusion arrived at by the police in their report:
• (3) he may take cognizance of the offence under Sec. 190(1)(a) on the basis of the
original complaint and proceed to examin 1~o `e upon oath the complainant and
his witnesses under Sec. 200 If he adopts the third alternative, he may hold or direct
an inquiry under Sec. 202 if he thinks fit. Thereafter he may dismiss the complaint or
issue process, as the case may be.
Sec. 190(1)(c) was never intended to apply to cases where there was a police report
under Sec. 173(1).The SC found it impossible to say that a Magistrate who takes
cognizance of an offence on the basis of the facts disclosed in a police report must be
said to have taken cognizance of the offence on suspicion and not upon a police report
merely because the Magistrate and the Police arrived at different conclusions from the
facts.
The Magistrate is not bound by the conclusions arrived at by the police even as he is not
bound by the conclusions arrived at by the complainant in a complaint. If a complainant
states the relevant facts in his complaint and alleges that the accused is guilty of an offence
under Sec. 307 Indian Penal Code the Magistrate is not bound by the conclusion of the
complainant. He may think that the facts disclose an offence under Sec. 324 Indian Penal
Code only and he may take cognizance of an offence under Sec. 324 instead of Sec. 307.
• Similarly if a police report mentions that half a dozen persons examined by them
claim to be eye witnesses to a murder but that for various reasons the witnesses could
not be believed, the Magistrate is not bound to accept the opinion of the police
regarding the credibility of the witnesses.
• He may prefer ignore the conclusions of the police regarding the credibility of the
witnesses and take cognizance of the offence. If he does so, it would be on the basis
of the statements of the witnesses as revealed by the police report. He would be
taking cognizance upon the facts disclosed by the police report though not on the
conclusions arrived at by the police. It could not be said in such a case that he
was taking cognizance on suspicion.
Held- SC was therefore unable to agree with the submission of the appellant that the
Magistrate acted without jurisdiction in taking cognizance of the offence and issuing
process to the accused notwithstanding the fact that the police report was to the effect that
no case had been made out.

5. Kishun Singh v. State of Bihar (1993) 2 SCC 16- S319+193+S209

HELD- On the magistrate committing the case under section 209 to the Court of Session the
bar of section 193 is lifted thereby investing the Court of Session complete and unfettered
jurisdiction of the Court of original jurisdiction to take cognizance of the offence which
would include the Summoning of the person or persons whose complicity in the commission
of the crime can prima facie be gathered from the material available on record.
• Kishun Singh (Supra), this Court came to the conclusion that even the Sessions
Court has power under Section 193 Cr.P.C. to take cognizance of the offence and
summon other persons whose complicity in the commission of the trial can prima
facie be gathered from the materials available on record and need not wait till the
stage of Section 319 Cr.P.C. is reached.

On the evening of 27th February, 1990 Uma Kant Thakur, younger brother of the informant,
was attacked by twenty persons including the present two appellants with sticks, etc.
A First Information Report was lodged at about 9.30 p.m. on the same day in which all the
twenty persons were named as the assailants. The injured Umakant Thakur died in the Patna
Hospital on the next day.
In the course of investigation statements of the informant as well as others came to be
recorded and a charge-sheet dated 10th June, 1990 was forwarded to the Court of the learned
Magistrate on 17th June, 1990 wherein eighteen persons other than the two appellants were
shown as the offenders.
The names of the present two appellants were not included in the said report as in the opinion
of the investigating officer their involvement in the commission of the crime was not
established
A final report to that effect was submitted on 4th September, 1990 to the Chief Judicial
Magistrate on which no orders were passed. The concerned Magistrate committed the
eighteen persons named in the report to the Court of Session, Dharbanga, under Section
209 of the Code to stand trial.
When the matter came up before the learned Sessions Judge, Dharbanga, an application was
presented under Section 319 of the Code praying that the material on record annexed to the
report under Section 173 of the Code revealed the involvement of the two appellants also and
hence they should be summoned and arraigned before the Court as accused persons along
with the eighteen already named in the charge-sheet.
Thereupon a show cause notice was issued to the present two appellants in response whereto
they contended that though they were not present at the place of occurrence, they were falsely
named in the First Information Report and the investigating officer had rightly omitted their
names from the charge-sheet filed in Court.
The learned Sessions Judge rejected the plea put forth by the appellants and exercised the
discretion vested in him under Section 319 of the Code by impleading the appellants as co-
accused along with the eighteen others. Indisputably this was done before any evidence
was recorded i.e. before the commencement of the actual trial.
The appellants thereupon filed a Criminal Revision Application before the High Court of
Patna assailing the order passed by the learned Sessions Judge taking cognizance against
them. The High Court after hearing counsel for the parties dismissed the Revision
Application.
It is against this order passed by the learned Single Judge of the High Court that the
appellants have moved this Court by special leave under Article 136 of the Constitution of
India.
Issue- Whether a Court of Session to which a case is committed for trial by a Magistrate can,
without itself recording evidence, summon a person not named in the Police Report presented
under Section 173 of the Code of Criminal Procedure, 1973, to stand trial along with those
already named therein, in exercise of power conferred by Section 319 of the Code ?
Arguments- Appellants contended unless evidence was recorded during the course of trial the
Sessions Judge had no jurisdiction under Section 319 of the Code to take cognizance and
implead the appellants as co- accused solely on the basis of the material collected in the
course of investigation and appended to the report forwarded under Section 173 of the Code
in view of the clear mandate of Section 193 of the Code.
The question which arises for consideration in the backdrop of the aforestated facts is :
Whether the learned Sessions Judge was justified in law in invoking Section 319 of the Code
at the stage at which the proceedings were pending before him solely on the basis of the
documents including statements recorded under Section 161 of the Code during
investigation without commencing trial and recording evidence therein?
Held- Counsel submitted that the power cannot be exercised before 'evidence' is led as the
involvement of the person must appear from the evidence tendered at the trial because it is at
that stage that the court must apply its mind about the complicity of the person not arraigned
before it in the commission of the crime.
Therefore, it was submitted that in the present case since the trial had not commenced
and the prosecution had not led any evidence, the stage for the exercise of the power
had not reached.
Appellants submitted that once a Court of Session takes cognizance in the power to summon
or arrest a person not named in the police report can be exercised under Section 319 of the
Code only if the condition precedent, namely, the commencement of the trial and
recording of evidence, is satisfied.
Under section 190 cognizance has to be taken for the offence and not the offender: so
also under section 193 the emphasis now is to the committal of the case and no more on
the offender.
So also section 209 speaks of committing the case to the Court of Session. On a conjoint
reading of these provisions it becomes clear that while under the Old Code in view of the
language of section 193 unless an accused was committed to the Court of Session the said
court not take cognizance of an offence as a court of original jurisdiction; now under section
193 as it presently stands once the case is committed the restriction disappears.
This Court after considering the relevant provisions of the Code concluded as under :
"Section 319 empowers the court to proceed against persons not being the accused appearing
to be guilty of offence. Sub-sections (1) and (2) of this section provide for a situation when a
court hearing a case against certain accused person finds from A the evidence that some
person or persons, other than the accused before it, is or are also connected in this very
offence or any connected offence; and it empowers the court to proceed against such person
or persons for the offence which he or they appears or appear to have committed and issue
process for the purpose.
It provides that the cognizance against newly added accused is deemed to have been taken
in the same manner in which cognizance was first taken of the offence against the earlier
accused. It naturally deals with a matter arising from the course of the proceeding already
initiated.
• On a plain reading of sub-section (1) of Section 319 there can be no doubt that it must
appear from the evidence tendered in the course of any inquiry or trial that any
person not being the accused has committed any offence for which he could be
tried together with the accused. This power, it seems clear to us, can be exercised
only if it so appears from the evidence at the trial and not otherwise.
• Therefore, this sub-section contemplates existence of some evidence appearing in the
course of trial wherefrom the Court can prima facie conclude that the person not
arraigned before it is also involved in the commission of the crime for which he can
be tried with those already named by the police.
 Section 319 application
Even a person who has earlier been discharged would fall within the sweep of the power
conferred by Section 319 of the Code. Therefore, stricto sensu, Section 319 of the Code
cannot be invoked in a case like the present one where no evidence has been led at a
trial wherefrom it can be said that the appellants appear to have been involved in the
commission of the crime along with those already sent up for trial by the prosecution.
It must be conceded that Section 319 covers the post-cognizance stage where in the course of
an inquiry or trial the involvement or complicity of a person or persons not named by the
investigating agency has surfaced which necessitates the exercise of the discretionary power
conferred by the said provision.

Section 319 can be invoked both by the Court having original jurisdiction as well as the
Court to which the case has been committed or transferred for trial.
The sweep of Section 319 is, therefore, limited, in that, it is an enabling provision which can
be invoked only if evidence surfaces in the course of an inquiry or a trial disclosing the
complicity of a person or persons other than the person or persons already arraigned
before it. If this is the true scope and ambit of Section 319 of the Code, the question is
whether there is any other provision in the Code which would entitle the Court to pass a
similar order in similar circumstances.
• Section 319 deals with only one situation, namely, the complicity coming to light
from the evidence taken and recorded in the course of an inquiry or trial. This
may happen not merely in cases where despite the name of a person figuring in the
course of investigation the investigating agency does not send him up for trial but
even in cases where the complicity of such a person comes to light for the first time in
the course of evidence recorded at the inquiry or trial
• Once the purport of Section 319 is so understood it is obvious that the scope of its
operation or the area of its play would also be limited to cases where after
cognizance the involvement of any person or persons in the commission of the
crime comes to light in the course of evidence recorded at the Inquiry or trial.
Thus, the Section does not apply to all situations and cannot be interpreted to be
repository of all power for summoning such person or persons to stand trial
along with others arraigned before the Court.
The question then is whether dehors Section 319 the Code, can similar power be
traced to any other provision in the Code or can such power be Implied from the
scheme of the Code?
• After cognizance is taken under section 190(1) of the Code, in warrant cases the Court
is required to frame a charge containing particulars as to the time and place of the
alleged offence and the person (if any) against whom, or the thing (if any) in respect
of which, it was committed.
• But before framing the charge section 227 of the Code provides that if, upon a
consideration of the record of the case and the documents submitted therewith,
 the Sessions Judge considers that there is not sufficient ground for proceeding against
the accused, he shalt for reasons to be recorded, discharge the accused
• It is only when the Judge is of opinion that there is ground for presuming that the
accused has committed an offence that he will proceed to frame a charge and record
the plea of the accused (vide, section 228). It becomes immediately clear that for
the limited purpose of deciding whether or not to frame a charge against the
accused, the judge would be required to examine the record of the case and the
documents submitted therewith, which would comprise the police report, the
statements of witnesses recorded under section 161 of the Code, the seizure-
memoranda, etc., etc
• If, on application of mind for this limited purpose, the Judge finds that besides
the accused arraigned before the him the complicity or involvement of others in
the commission of the crime prima facie surfaces from the material placed before
him, what course of action should he adopt?
• Once the court takes cognizance of the offence (not the offender) it becomes the
court's duty to find out the real offenders and if it comes to the conclusion that
besides the persons put up for trial by the police some others are also involved in
the commission of the crime, it is the court's duty to summon them to stand trial
along with those already named, since summoning them would only be a part of
the process of taking cognizance.
Thus, on a plain reading of section 193 as it presently stands once the case is committed to
the Court of Session by a magistrate under the Code, the restriction placed on the power of
the Court of Session to take cognizance of an offence as a court of original jurisdiction gets
lifted.
HELD- On the magistrate committing the case under section 209 to the Court of Session the
bar of section 193 is lifted thereby investing the Court of Session complete and unfettered
jurisdiction of the Court of original jurisdiction to take cognizance of the offence which
would include the Summoning of the person or persons whose complicity in the commission
of the crime can prima facie be gathered from the material available on record.
Conclusion- Submission of the learned counsel for the appellants that the stage for the
exercise of power under section 319 of the Code had not reached, inasmuch as, the trial
had not commenced and evidence was not led, since the Court of Session had the power
under section 193 of the Code to summon the appellants as their involvement in the
commission of the crime prima facie appeared from the record of the case, SC saw no
reason to interfere with the impugned order as it is well-settled that once under it is
found that the power exists the exercise of power under a wrong provision will not
render the order illegal or invalid. We, therefore, dismiss this appeal.

6. DL Reddy v. VN Reddy (1976) 3 SCC 252 – S190+ S201 not attracted

Issue- Whether in view of Clause (a) of the First Proviso to s, 202(1) of the Code of Criminal
Procedure, 1973, a Magistrate who receives a complaint, disclosing an offence exclusively
triable by the Court of Session, is debarred from sending the same to the police for
investigation under s. 156(3) of the Code?
Facts- the Judicial Magistrate, First Class, Dharamavaram against the appellants herein
alleging that. On account of factions existing village Thippapalli the appellants formed
themselves into an unlawful assembly, armed with deadly weapon, such as axes, spears and
sticks, on the night of June 20,1975 and entered the houses of several persons belonging to
the opposite party, attacked the inmates and forcibly took way jewels, paddy, ground-nuts
and other valuables. The Magistrate on receiving the complaint forwarded it to the Police
for investigation.
According to the Counsel, under the new Code, if a complaint discloses an offence triable
exclusively be court of Session, the Magistrate is bound to proceed with that complaint
himself before issuing process to the accused. The point pressed into argument is that clause
(a) of the first Proviso to s. 202(1), the new Code peremptorily prohibits the Magistrate, to
direct investigation of such a complaint by the Police or any other person.
It is urged that since in the instant case, the Magistrate had sent the complaint for police
investigation without taking such cognizance s. 202 including the bar enacted therein,
was not attracted. In the alternative, it is submitted that the ban in the 1st Proviso to s. 202,
becomes operative only when the Magistrate after applying his mind to the allegations in the
complaint and the other material" including the statement of the complainant and his
witnesses, if any, recorded under s. 200,, is prima facie satisfied that the offence complained
of is triable exclusively by the Court of Session.
The point sought to be made out is that a mere allegation in the complaint that the
offence committed is one exclusively triable by the Court of Session, does not oust the
jurisdiction of the Magistrate to get the case investigated by the police or other person.
The word "appears" according to Counsel, imports a prerequisite or condition precedent, the
existence of which must be objectively and judicially established before the prohibition in the
1st Proviso to s. 202 becomes operative. It is added that in the instant case, the existence of
this condition precedent was not, and indeed could not be established.
It is well settled that 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. This
is clear from the use of the words "may take cognizance" which in the context in which they
occur cannot be equated with must take cognizance". The word "may" gives a discretion to
the Magistrate 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 s. 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, himself.
What is meant by "taking cognizance of an offence`' by a Magistrate within the
contemplation of s. 190?
Whether the Magistrate has or has not taken cognizance of the offence will depend on the
circumstances of the particular case including the mode in which the case is sought to be
instituted and the nature of the preliminary action, if any, taken by the Magistrate. Broadly
speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of
proceeding under s. 200 and the succeeding sections in Chapter XV of the Code of 1973, he
is said to have taken cognizance of the offence within the meaning of s. 190(l)(a). If, instead
of proceeding under Chapter XV, he has in the judicial exercise of his discretion, taken action
of some other kind, such as issuing a search warrant for the purpose of investigation, or
ordering investigation by the police under s. 156(3), he cannot be said to have taken
cognizance of any offence.
The distinction between a police investigation ordered under s. 156(3) and the one directed
under s. 202, has also been maintained under the new Code; but a rider has been clamped
by the 1st Proviso to s. 202(1) that if it appears to the Magistrate that an offence triable
exclusively by the Court of Session has been committed, he shall not make any direction
for investigation.
Section 156(3) occurs in Chapter XII, under the caption: "Information to the Police and their
powers to investigate"; while s. 202 is in Chapter XV which bears the heading "Of
complaints to Magistrates". The power to order police investigation under s. 156(3) is
different from the power to direct investigation conferred by s. 202(1). The two operate in
distinct spheres at different stages. The first is exercisable at the pre cognizance stage, the
second at the post-cognizance stage when the Magistrate is in seisin of the case.
'That is to say in the case of a complaint regarding the commission of a cognizable offence,
the power under s. 156(3) can be invoked by the Magistrate before he takes cognizance of the
offence under s. 190(1)(a). But if he once takes such cognizance and embarks upon the
procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance
stage and avail of s. 156(3).
It may be noted further that an order made under sub-section (3) of s. 156, is in the nature of a
peremptory reminder or intimation to the police to exercise their plenary powers of
investigation under s. 156(1). Such an investigation embraces the entire continuous process
which begins with the collection of evidence under s. 156 and ends with a report or
chargesheet under s. 173.
On the other hand s. 202 comes in at a stage when some evidence has been collected by the
Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a
decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is
empowered under s. 202 to direct within the limits circumscribed by that section, an
investigation "for the purpose of deciding whether or not here is sufficient ground for
proceeding ". Thus the object of an investigation under s. 202 is not to initiate a fresh case on
police report but to assist the Magistrate in completing proceedings already instituted upon a
complaint before him.
• Held- In the instant case the Magistrate did not apply his mind to the complaint for
deciding whether or not there is sufficient ground for proceeding; but only for
ordering an investigation under s. 156(3). He did not bring into motion the machinery
of Chapter XV. He did not examine the complaint or his witnesses under s.
200, Cr.P.C., which is the first step in the procedure prescribed under that Chapter.
The question of taking the next step of that procedure envisaged in s. 202 did not
 arise. Instead of taking cognizance of the offence he has., in the exercise of his
discretion, sent the complaint for investigation by police under s. 156.
• This being the position, s. 202(1), 1st Proviso was not attracted. Indeed, it is not
necessary for the decision of this case to express any final opinion on the ambit and
scope of the 1st Proviso to s. 202(1) of the Code of 1973. Suffice it to say, the stage at
which s. 202 could become operative was never reached in this case.
• For the foregoing reasons, we answer the question posed" in the negative, and dismiss
this appeal.

7. Vinubhai Malaviya v. State of Gujarat (2019 14 SCALE 1)-

Facts- The instant case stems from an FIR that was registered on 22.12.2009 by Nitinbhai,
Power of Attorney holder of Ramanbhai and Shankarbhai. They both live in UK and US
respectively, as alleged in FIR. FIR alleges that Ramanbhai and Shankarbhai are owners of
the land of 8296 sq. m. which is located on the outskirts of Surat, they bought the land from
one Bhikabhai and his wife Bhikiben in 1975. It was alleged in FIR that the legal heirs of
Bhikabhai and Venubhai together have hatched a conspiracy due to a price hike of land in
Surat. A notice published in Gujarati newspaper on 07.06.2008 titled Beware of Land-
grabbers. Henceforth, a dispute arose and Vinubhai demanded Rs. 2.5 crores to resolve and
settle disputes concerning this land. Also, as per facts it was said that apart from extortion of
money from Nitinbhai, to settle the dispute regarding land, legal heirs of Bhikhabhai and
Bhikiben along with Vinubhai and Manubhai have used a forged and bogus Satakhat and
Power-of-Attorney in respect of the disputed land, and accused had tried to snatch the land
from its lawful owner Ramanbhai and Shankarbhai
Issue- The question of law that therefore arises in this case is whether, after a charge-sheet is
filed by the police, the Magistrate has the power to order further investigation, and if so,
up to what stage of a criminal proceeding?

The statutory scheme contained in the CrPC therefore puts inquiry and trial in water-tight
compartments, as the very definition of inquiry demonstrates. Investigation is for the
purpose of collecting evidence by a police officer, and otherwise by any person authorised by
a Magistrate in this behalf, and also pertains to a stage before the trial commences.
Investigation which ultimately leads to a police report under the CrPC is an
investigation conducted by the police and may be ordered in an inquiry made by the
Magistrate himself in complaint cases.
With the introduction of Section 173(8) in the CrPC, the police department has been armed
with the power to further investigate an offence even after a police report has been forwarded
to the Magistrate.
Quite obviously, this power continues until the trial can be said to commence in a criminal
case.
The vexed question before us is whether the Magistrate can order further investigation after a
police report has been forwarded to him under Section 173.
• 5. Section 156(3) provides for a check by the Magistrate on the police performing its
duties under Chapter XII CrPC. In cases where the Magistrate finds that the police has
 not done its duty of investigating the case at all, or has not done it satisfactorily, he
can issue a direction to the police to do the investigation properly and can monitor the
same.
• 16. The power in the Magistrate to order further investigation under Section 156(3) is
an independent power and does not affect the power of the investigating officer to
further investigate the case even after submission of his report vide Section 173(8).
Hence the Magistrate can order reopening of the investigation even after the police
submits the final report, vide State of Bihar v. J.A.C. Saldanha [(1980) 1 SCC 554 :
1980 SCC (Cri) 272 : AIR 1980 SC 326] (SCC : AIR para 19).
• In our opinion Section 156(3) CrPC is wide enough to include all such powers in a
Magistrate which are necessary for ensuring a proper investigation, and it includes the
power to order registration of an FIR and of ordering a proper investigation if the
Magistrate is satisfied that a proper investigation has not been done, or is not being
done by the police. Section 156(3) CrPC, though briefly worded, in our opinion, is
very wide and it will include all such incidental powers as are necessary for ensuring
a proper investigation.

Framing of Charge
Court frames charge.
Fair trial demands giving precise information to the accused of the accusation against him.
This helps him prepare his defense. In case of serious offences, the Code requires that the
accusations are to be formulated and reduced to writing with great precision and clarity. This
“charge” is then read and explained to the accused. (Procedure is followed in Trials of
warrant cases and Court of Sessions Trials).

1. William Slaney v. State of Maharashtra, AIR 1956 SC 116 -What is charge+

alteration of charge- S464+215
Facts- William was on terms of intimacy with Beryl P.W. 13. She was the sister of Donald
Smythe. The W was practically living with her in her house. The brother did not like their
intimacy and was making attempts to separate Beryl from the accused.
On the evening of the day of the occurrence, Donald and his mother went to Beryl's house,
there was a quarrel between them and the accused was asked to get away.
He left the place but returned a little later with his brother (Ronnie) and asked Beryl who was
on the first floor to come down to him. She did not come but Donald came down into the
courtyard. There was a heated exchange of words. The accused slapped Donald on the cheek.
Donald lifted his fist. The accused gave one blow on his head with a hockey stick with the
result that his skull was fractured. Donald died in the hospital ten days later.
W and his brother were put up for trial on charges under s. 302 read with s. 34 of the Indian
Penal Code. The W was specifically charged with murder in prosecution of the common
intention. There was evidence to show that he and not his brother had struck the fatal blow.
The brother was acquitted, and W was convicted under s. 302 and sentenced to
transportation for life. The High Court upheld the conviction and sentence and dismissed the
appeal.
The main ground is that the appellant was charged under section 302 of the Indian Penal
Code read with section 34.
He contends that as he was not charged with having murdered the man personally cannot be
convicted under section 302.
• it was taken as settled law by both sides that the breach of the provisions of s. 239 of
the Code of Criminal Procedure would be an 'illegality' which would vitiate the
trial as opposed to a mere 'irregularity' which would not vitiate the trial.
• Similarly the courts in India have also taken the view that a breach of any of the
mandatory -provisions relating to ss. 233 to 239 of the Code, would be an
'illegality' in the mode of trial which would vitiate the trial, as opposed to an
'irregularity' in the course of trial which could be cured.
• Section 535 appears in Chapter XLV of the Code and is headed "Of irregular
proceedings" and cannot possibly apply to breaches of the mandatory provisions
of ss. 233 to 239 of the Code; it may relate to those cases where it is optional to
frame a charge. See ss. 263, 362(4).
Issue- Is the framing of a charge and the recording of the plea of the accused merely a ritual
or a fundamental provision of the Code concerning procedure in a criminal trial?
Are the express provisions of the Code as to the way a trial is to proceed to be ignored, or
considered as satisfied, merely because the Court explained to the accused as to what he was
being tried for?
Held- Now there is no doubt that a charge forms the foundation of a sessions trial and is a
most important step in it. The accused must know and understand what he is being tried for
and must be told in clear and unambiguous terms: section 271 (1). There can be no shirking
that or slurring over it, and this must appear on the face of the record. It cannot be established
by evidence taken after the trial.
The Code expressly deals with this and expressly provides that no error, omission or
irregularity in the charge, or even total absence of a charge, shall vitiate a trial unless
prejudice to the accused is shown.
First, sections 221 to 223 of the Code, which undoubtedly envisage a formal written charge,
set out what a charge must contain.
A perusal of them reveals the reasons why a charge is required.
It must set out the offence with which the accused is charged and if the law which creates the
offence does not give it any specific name, so much of the definition of the offence must be
stated "as to give the accused notice of the matter with which he is charged".
The charge must also contain such particulars of date, time, place and person "as are
reasonably sufficient to give the accused notice of the matter with which he is charged";
When there is a charge and there is either error or omission in it or both, and whatever
its nature, it is not to be regarded as material unless two conditions are fulfilled both of
which are matters of fact:
(1) the accused has in fact been misled by it and
(2) it has occasioned a failure of justice
Counsel conceded that there are occasions when an accused person can be convicted in the
absence of a charge, but he said that they are expressly set out in sections 237 and 238 and he
contended that no further departure is permissible.
He said that sections 237 and 238 deal with cases in which there is a charge to start with but
none to support a conviction for an offence which the Court feels is made out by the
evidence.
If in spite of this a charge under section 302 read with 149 of the Indian Penal Code only is
framed against an accused person and not under section 302 of the Indian Penal Code, it will
be reasonable to suppose that neither the prosecution nor the Court considered the evidence
sufficient to prove that murder was committed by the accused and the omission to frame a
charge under section 302 must be regarded as a deliberate act of the Court by way of notice to
the accused that he was not being tried for that offence. It would not be a case of mere
omission to frame a charge. If, therefore, the accused is convicted under section 302, I would
consider his conviction as invalid, as he was misled in his defense.
In conclusion I would point out that the provisions of the Code of Criminal Procedure
are meant to be obeyed. Contravention of its provisions are unnecessary and neither the
prosecution nor the Courts of trial should ignore its provisions in the hope that they
might find shelter under sections 535 and 537 of the Code. Where the contravention is
substantial and a retrial becomes necessary, public time is wasted and the accused is put
to unnecessary harassment and expense.
I agree that the appellant's conviction be altered from section 302 of the Indian Penal Code to
304 of the Indian Penal Code and that he be sentenced to five years' rigorous imprisonment.
Application of section 535-
The facts of each case, as they arise, will have to be carefully considered in order to
decide that that which was prima facie invalid is deemed to be valid by virtue of its
provisions. There may be cases where the omission to frame a charge was merely a
technical defect in which case section 535 would apply. On the other band, there may be
cases where failure to frame a charge affects the mode of trial or it is such a substantial
contravention of the provisions of the Code relating to the framing of charges that
prejudice may be inferred at once and the conviction which was prima facie invalid
continued to be so.

Are the express provisions of the Code as to the manner in which a trial is to proceed to be
ignored, or considered as satisfied, merely because the Court explained to the accused as to
what he was being tried for?
NO. In the SC’s opinion, a total absence of a charge from start to finish in a case where
the law requires a charge to be framed, is a contravention of the provisions of the
Code as to the mode of trial and a conviction of the accused of an offence in such a case
is invalid and the question of prejudice does not arise. None of the decisions of the Privy
Council suggest that in such a case the conviction will be deemed to be valid by virtue of the
provisions of section 535, unless the Court is satisfied that there has been a failure of justice.

2. UOI v. Prafulla K Samal (1979) 3 SCC 4 -Section 227

Facts- The facts of the case centre around an alleged conspiracy said to have been entered
into between respondents No. 1 and 2 in order to commit offences under the Prevention of
Corruption Act (hereinafter referred to as the Act) read with I.P.C.

The main charge against the respondents was that,the respondent entered into an agreement
for the purpose of obtaining pecuniary advantage for respondent No. 1 P. K. Samal and in
pursuance of the said conspiracy the second respondent Debi Prasad Jena, who was the Land
Acquisition officer aided and abetted the first respondent in getting a huge sum of money for
a land acquired by the Government which in fact belonged to the Government itself and
respondent No. 1 was a skew thereof.
It is averred in the charge sheet that respondent No. 1 by abusing his official position
concealed the fact that the land which was the subject matter of acquisition and was situated
in Cuttack Cantonment was really Khasmahal land belonging to the Government and having
made it appear that he was the undisputed owner of the same, got a compensation of Rs.
4,18,642.55.
The charge-sheet contains a number of circumstances from which the inference of the
conspiracy is sought to be drawn by the police. After the charge-sheet was submitted before
the Special Judge, the prosecution ousted him to frame a charge against the respondents.
The Special Judge, Puri after having gone through the charge-sheet and statements made by
the witnesses before the police as also other documents came to the conclusion that there was
no sufficient ground for framing a charge against the respondents and he accordingly
discharged them under section 227 of the Code.
Issue- The short point which arises for determination in this case is the scope and ambit of an
order of discharge to be passed by a Special Judge under section 227 of the Code.
Procedure to be followed- So far as the present case (offences committed under
the Prevention of Corruption Act) is concerned it is regulated by the procedure laid down by
the Criminal Law Amendment Act under which the police has to submit, charge-sheet
directly to the Special Judge and the question of commitment to the Court of Session does not
arise, but the Sessions Judge has nevertheless to follow the procedure prescribed for trial of
sessions cases and the consideration governing the interpretation of section 227 of the Code
apply mutatis mutandis to these proceedings after the charge-sheet is submitted before the
Special Judge.
Held- As per the OLD CRPC it would appear that under section 209 of the Code of 1898 the
question of discharge was to be considered by a Magistrate.
This power has now been entrusted to a senior Judge, namely, the Sessions Judge who is
to conduct the trial himself and who has to decide before commencing the trial as to
whether or not charges should be framed in a particular case against the respondents.
The discretion, therefore, is to be exercised by a senior and more experienced Judge so
as to exclude any abuse of power. In this view of the matter, it is manifest that if the
Sessions Judge exercises his discretion in discharging the accused for reasons recorded
by him, his discretion should not normally be disturbed by the High Court or by this
Court.
Section 227- Section 227 of the Code runs thus:-
"If, upon consideration of the record of the case and the documents submitted therewith, and
after hearing the submissions of the accused and the prosecution in this behalf, the Judge
considers that there is not sufficient ground for proceeding against the accused, he shall
discharge the accused and record his reasons for so doing.“
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 his
function 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.
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.
Whereas strong suspicion may not take the place of the proof at the trial stage, yet it may be
sufficient for the satisfaction of the Sessions Judge in order to frame a charge against the
accused.
Even under the Code of 1898 this Court has held that a committing Magistrate had ample
powers to weigh the evidence for the limited purpose of finding out whether a case of
commitment to the Sessions Judge has been made out.
That the Judge while considering the question of framing the charges under section
227 of the Code 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
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.
The test to determine a prima facie case would naturally depend upon the facts of each case
and it is difficult to lay down a rule of universal application. By and large however if two
views are equally possible and the Judge is satisfied that the evidence produced before him
giving rise to some suspicion but not grave suspicion against the accused, he will be fully
within his right to discharge the accused.
Current principles to be followed- The test to determine a prima facie case would naturally
depend upon the facts of each case and it is difficult to lay down a rule of universal
application. By and large, however, if two views are equally possible and the Judge is
satisfied that the evidence produced before him giving rise to some suspicion but not grave
suspicion against the accused, he will be fully within his right to discharge the accused.
Judge 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 appearing in the case.

• Facts & Holding- In these circumstances, therefore, it cannot be said that the letter
written by respondent No. 1 referred to above was an evidence of a criminal
intention on the part of respondent No. 1 to grab the huge compensation by
practising fraud on the Government.
 • Respondent No. 1 a high officer of the Government and was a lessee of the
Government, a fact which he never concealed and if he was able to get a good
customer for purchasing his land or acquiring the same, there was no harm.
• Apart from this, the contention of the appellant that the fact that the land being
Khasmahal land belonging to the Government was deliberately suppressed by the
respondents is completely falsified by the circumstances.
• Respondent No. 1 at no time represented to the All-India Radio authorities or the
Government that the land was his private one and the records of the Government
clearly went to show that the land was a Government land. In these circumstances,
therefore, it cannot be said that respondent No. 1 acted illegally in agreeing to the land
being acquired by the Government.
• Another important circumstance relied on by the appellant was the great rapidity with
which the land acquisition proceedings started and ended clearly shows that the
respondents had joined hands to get the lands acquired and the compensation paid to
respondent No. 1.
• As the appellant was naturally interested in finalising the deal as quickly as possible,
there could be no difficulty in finding out the estimates which had been sanctioned a
week before respondent No. 1 wrote the letter to the Vigilance Department. This fact
proves the bona-fide rather than any wrongful conduct on the part of respondent No. 1
which may lead to an adverse inference being drawn against him.
HELD SC therefore was in complete agreement with the view taken by the High Court
that there was no sufficient ground for trying the accused in the instant case. Moreover,
this Court could be most reluctant to interfere with concurrent findings of the two
courts in the absence of any special circumstances.
For the reasons given above, the judgement of the High Court was affirmed and the
appeal dismissed.

3. State of Orissa v. Debendra Nath Padhi (2005) 1 SCC 568

Issue- Can the trial court at the time of framing of charge consider material filed by the
accused?
Facts- Drawing from Satish Mehra v. Delhi Administration and Another [(1996) 9 SCC
766], It was observed that if the accused succeeds in producing any reliable material at the
stage of taking cognizance or framing of charge which might fatally affect even the very
sustainability of the case, it is unjust to suggest that no such material should be looked
into by the court at that stage.
It was held that the object of providing an opportunity to the accused of making
submissions as envisaged in Section 227 of the Code is to enable the court to decide
whether it is necessary to proceed to conduct the trial.
If the materials produced by the accused even at that early stage would clinch the issue, why
should the court shut it out saying that such documents need be produced only after wasting a
lot more time in the name of trial proceedings.
It was further observed that there is nothing in the Code which shrinks the scope of such
audience to oral arguments and, therefore, the trial court would be within its power to
consider even material which the accused may produce at the stage contemplated in Section
227 of the Code.
It was observed that at the time of framing a charge the trial court can consider only the
material placed before it by the investigating agency, there being no requirement in law for
the court to grant at that stage either an opportunity to the accused to produce evidence in
defence or consider such evidence the defence may produce at that stage.
But having regard to the views expressed in Satish Mehra's case (supra) it was directed that
the matter should be referred to a larger Bench. The order referring the matter to larger Bench
is reported in THIS CASE.
Held- The views expressed in Satish Mehra's case (supra) have been strongly supported by
learned counsel for the accused on the ground of justice, equity and fairness and also on
the touchstone of Article 21 of the Constitution of India contending that reversal of that
view would lead to unnecessary harassment to the accused by having to face the trial for
years, waste of valuable time of the court, heavy cost, despite the fact that even at the
early stage of framing of charge or taking cognizance the accused is in a position to
produce unimpeachable material of sterling quality to clinchingly show that there is no
prospect of conviction at the conclusion of the trial.
Satish Mehra's case was further supported on interpretation of Sections 227 and 239 of the
Code.
It was contended on behalf of the State that the observations made in Satish Mehra's case
would result in conducting a mini trial at the stage of framing of charge or taking cognizance.
Such a course would not only be contrary to the object and the scheme of the Code but would
also result in total wastage of the court time because of conducting of two trials, one at the
stage of framing charge and the other after the charge is framed.
It was contended that on true construction of Section 227 of the Code only the material
sent by prosecution along with the record of the case and the documents sent along with
it can be considered by the trial court at the time of framing of the charge. The accused
at that stage has no right to place before the court any material.
At the stage of framing charge, the trial court is required to consider whether there are
sufficient grounds to proceed against the accused. Section 227 of the Code provides for
the eventuality when the accused shall be discharged. If not discharged, the charge
against the accused is required to be framed under Section 228.
What is the meaning of the expression 'the record of the case' as used in Section 227 of the
Code?
Though the word 'case' is not defined in the Code but Section 209 throws light on the
interpretation to be placed on the said word. Section 209 which deals with the commitment of
case to Court of Session when offence is triable exclusively by it, inter alia, provides that
when it appears to the Magistrate that the offence is triable exclusively by the Court of
Session, he shall commit 'the case' to the Court of Session and send to that court 'the record
of the case' and the document and articles, if any, which are to be produced in evidence and
notify the Public Prosecutor of the commitment of the case to the Court of Session.
It is evident that the record of the case and documents submitted therewith as postulated
in Section 227 relate to the case and the documents referred in Section 209. That is the plain
meaning of Section 227 read with Section 209 of the Code. No provision in the
Code grants to the accused any right to file any material or document at the stage of
framing of charge. That right is granted only at the stage of the trial.
In the old code, there was no provision similar to Section 227. Section 227 was incorporated
in the Code with a view to save the accused from prolonged harassment which is a necessary
concomitant of a protracted criminal trial. It is calculated to eliminate harassment to accused
persons when the evidential materials gathered after investigation fall short of minimum legal
requirements.
If the evidence even if fully accepted cannot show that the accused committed the offence,
the accused deserves to be discharged.
• In the old Code, the procedure as contained in Sections 207 and 207 (A) was fairly
lengthy.
• Section 207, inter alia, provided that the Magistrate, where the case is exclusively
triable by a Court of Session in any proceedings instituted on a police report, shall
follow the procedure specified in Section 207 (A).
• Under Section 207 (A) in any proceeding instituted on a police report the Magistrate
was required to hold inquiry in terms provided under sub-section (1), to take evidence
as provided in sub- section (4), the accused could cross-examine and the prosecution
could re-examine the witnesses as provided in sub-section (5), discharge the accused
if in the opinion of the Magistrate the evidence and documents disclosed no grounds
for committing him for trial, as provided in sub- section (6) and to commit the
accused for trial after framing of charge as provided in sub-section (7), summon the
witnesses of the accused to appear before the court to which he has been committed as
provided in sub-section (11) and send the record of the inquiry and any weapon or
other thing which is to be produced in evidence, to the Court of Session as provided in
sub-section (14).
The aforesaid Sections 207 and 207(A) have been omitted from the Code and a
new Section 209 .
Instead of committal Magistrate framing the charge, it is now to be framed by Court of
Session under Section 228 in case the accused is not discharged under Section 227.
This change brought out in the code is also required to be kept in view while determining the
question. Under the Code, the evidence can be taken only after framing of charge.
Observations from previous judicial decisions-
The Magistrate at the stage of framing charges had to see whether the facts alleged and
sought to be proved by the prosecution prima facie disclose the commission of offence
on general consideration of the materials placed before him by the investigating police
officer (emphasis supplied). Though in this case the specific question whether an accused at
the stage of framing of charge has a right to produce any material was not considered as such,
but that seems implicit when it was held that the Magistrate had to consider material placed
before it by the investigating police officer.
the learned counsel appearing for the accused contended that the procedure which deprives
the accused to seek discharge at the initial stage by filing unimpeachable and unassailable
material of sterling quality would be illegal and violative of Article 21 of the Constitution
since that would result in the accused having to face the trial for long number of years despite
the fact that he is liable to be discharged if granted an opportunity to produce the material and
on perusal thereof by the court.

The contention is that such an interpretation of Sections 227 and 239 of the Code would run
the risk of those provisions being declared ultra vires of Articles 14 and 21 of the
Constitution and to save the said provisions from being declared ultra vires, the reasonable
interpretation to be placed thereupon is the one which gives a right, howsoever, limited that
right may be, to the accused to produce unimpeachable and unassailable material to show his
innocence at the stage of framing charge.
• It is in this light that the provision about hearing the submissions of the accused as
postulated by Section 227 is to be understood. It only means hearing the
submissions of the accused on the record of the case as filed by the prosecution and
documents submitted therewith and nothing more. The expression 'hearing the
submissions of the accused' cannot mean opportunity to file material to be granted
to the accused and thereby changing the settled law. At the state of framing of
charge hearing the submissions of the accused has to be confined to the material
produced by the police.
• Clearly the law is that at the time of framing charge or taking cognizance the
accused has no right to produce any material. Satish Mehra's case holding that the
trial court has powers to consider even materials which accused may produce at the
stage of Section 227 of the Code has not been correctly decided.
Cannot invoke S91-
• If under Section 227 what is necessary and relevant is only the record produced in
terms of Section 173 of the Code, the accused cannot at that stage invoke Section
91 to seek production of any document to show his innocence. Under Section
91 summons for production of document can be issued by Court and under a
written order an officer in charge of police station can also direct production
thereof.
• Section 91 does not confer any right on the accused to produce document in his
possession to prove his defence.
• Section 91 presupposes that when the document is not produced process may be
initiated to compel production thereof.
 Law of Bail- PDF, starred
Section 436-439, 441, 445 The Code of Criminal Procedure 1973 Bare Act
Gurcharan Singh v. State AIR 1978 SC 179
Sushila Aggarwal v. State (NCT of Delhi) (2020 5 SCC 1)- anticipatory bail
P Chidambaram v. ED 2019 SCC OnLine SC 1549 (INX Media case)

Need- The aim of arrest and detention of the accused person is basically to secure his/her
appearance at the time of trial and to ensure that in case he is found guilty he is
available to receive the sentence. However, if his/her presence at the trial could be
reasonably ensured otherwise than by his arrest and detention, it would be unjust and unfair
to deprive him of his liberty during the pendency of criminal proceedings against him.
Definition- Bail, in law, means procurement of release from prison of a person awaiting
trial or an appeal, by the deposit of security to ensure his submission at the required time
to legal authority.
The monetary value of the security, known also as bail, or, more accurately, the bail bond,
is set by the court having jurisdiction over the prisoner.
The security may be cash, papers giving title to property, or the bond of private persons
of means etc.
Failure of the person released on bail to surrender himself at the appointed time results in
forfeiture of the security. Courts have greater discretion to grant or deny bail in the case of
persons under criminal arrest.
A person accused of a bailable offence has a RIGHT to be released on bail. Section 50(2)
makes it obligatory for a police officer arresting such person to inform him of his right to be
released on bail. But if the offence is non-bailable that does not mean that the person
accused of such offence shall not be released on bail but in such a case bail is a privilege to
be granted at the discretion of the court.
Therefore, even in non-bailable offences, the accused will be entitled to bail if the court
comes to the conclusion that a prima facie case against him and/if the court is satisfied that in
spite of the existence of the prima facie case the person can be released where the fact
situation demands.
The classification of offences into bailable and non-bailable has been devised for making a
threshold decision as to whether the accused should be released on bail.

Other Mandatory Bail Provisions

 • Right to be released when investigation not completed within prescribed number of
days (167(2))
• No reasonable grounds for believing the accused guilty of non-bailable offence but
sufficient for further inquiry. (437(2))
• Trial not concluded within 60 days. (437(6))
• Release on bail after conclusion of trial but before the judgement is delivered (437(7))

1. Gudikanti Narsimhulu v. Public Prosecutor (1978) 1 SCC 240- Conditions in s438

Landmark judgement propunded the "bail not jail" philosophy, the foundation of which was
laid by the celebrated Justice V R Krishna Iyer. He stated that:
"questions like "bail or jail?" and "at the pre-trial stage or post-conviction stage?" belonged to
the blurred area of the criminal justice system and largely hinges on the hunch of the bench,
otherwise called judicial discretion".
Issue- Is bail constitutional under article 21. Relevant criteria for grant of bail.
Conclusion- The Supreme Court of India concluded in this case that the provision of bail
preserves and maintains the ideal of liberty and freedom inherent in Article 21 of the
Indian Constitution and has a clear link to it.
Judicial Discretion
Some jurists have regarded the term “judicial discretion” as a misnomer (a wrong
designation). Nevertheless, the vesting of discretion is the unspoken but inescapable, silent
command of our judicial system, and those who exercise it will remember that discretion,
when applied to a Court of Justice, means sound discretion guided by law. It must be
governed by rules, not by humor; it must not be arbitrary, vague and fanciful, but legal and
regular.
An appeal to a Judge's discretion is an appeal to his judicial conscience. Discretion must be
exercised, not in opposition to, but in accordance with, established principles of law.
Having grasped the core concept of judicial discretion and the constitutional perspective in
which the Court must operate public policy by a restraint on liberty, we have to proceed to
see what are the relevant criteria for grant or refusal of bail in the case of a person who
has either been convicted and has appealed or one whose conviction has been set aside but
leave has been granted by this Court to appeal against the acquittal. What is often forgotten,
and therefore warrants reminder, is the object to keep a person in judicial custody pending
trial or disposal of an appeal.
It is thus obvious that the nature of the charge is the vital factor, and the nature of the
evidence also is pertinent. The punishment to which the party may be liable, if convicted or
conviction is confirmed, also bears upon the issue.
Another relevant factor is as to whether the course of justice would be thwarted by him who
seeks the benignant (kind) jurisdiction of the Court to be freed for the time being.
Thus the legal principles and practice validate the Court considering the likelihood of the
applicant interfering with witnesses for the prosecution or otherwise polluting the
process of justice. It is not only traditional but rational, in this context, to enquire into the
antecedents of a man who is applying for bail to find whether he has a bad record —
particularly a record which suggests that he is likely to commit serious offences while on bail.
Regarding habitual, it is part of criminological history that a thoughtless bail order has
enabled the bailee to exploit the opportunity to inflict further crimes on the members of
society. Bail discretion, on the basis of evidence about the criminal record of a defendant is
therefore not an exercise in irrelevance.
We must weigh the contrary factors to answer the test of reasonableness, subject to the need
for securing the presence of the bail applicant. It makes sense to assume that a man on bail
has a better chance to prepare or present his case than one remanded in custody. And if
public justice is to be promoted, mechanical detention should be demoted. The
considerable public expense of being in custody where no danger of disappearance or
disturbance can arise, is not a negligible consideration. Equally important is the deplorable
condition, verging on the inhuman, of our sub-jails, that the unrewarding cruelty and
expensive custody of avoidable incarceration makes refusal of bail unreasonable and a
policy favoring release justly sensible.

2. Gurcharan Singh v. State AIR 1978 SC 179

Ordinarily, the HC will not exercise its discretion to interfere with an order of the
Sessions Court granting bail. However, in this case, the Sessions Court had not given
due consideration to the grave apprehensions of the prosecution of the likelihood of
intimidation of witnesses. These apprehensions were in fact borne out by the behaviour
of the eye-witnesses and their statement that they had been intimidated by one of the
accused. If there were absolutely no basis for the prosecution’s apprehension, the
matter would have been different.
These two appeals are directed against the judgment and order of the Delhi High Court
cancelling the orders of bail of each of the appellants passed by the Sessions Judge. They
were all arrested in pursuance of the First Information Report lodged by CBI in June 1977
in what is now described as the "Sunder Murder Case".
Sunder was said to be a notorious dacoit who was wanted in several cases of murder and
dacoity alleged to have been committed by him in Delhi and elsewhere. It is stated- that by
May 1976 Sunder became a "security risk for Mr Sanjay Gandhi". It appears Sunder was
arrested at Jaipur on August 31, 1976, and was in police custody in Delhi between November
2, 1976 and November 26, 1976. It is alleged that the appellants ranging from the Deputy
Inspector General of Police and the Superintendent of Police at the top down to some police
constables were a party to a criminal conspiracy to kill Sunder and caused his death by
drowning him in the Yamuna in pursuance of the conspiracy. According to the prosecution,
the alleged murder took place on the night of November 24, 1976. The appellants were
arrested in connection with the above case between June 10, 1977, and July 12, 1977 and the
Magistrate declined to release them on bail. Thereafter, they approached the Sessions
Judge under Section 439 (1) and secured release on bail of the four appellants on August 1,
1977, and of the eight other police personnel on August 11, 1977. The Delhi Administration
moved the High Court under Section 439(2) Cr. P.C. against the orders of the Sessions
Judge for cancellation of the bail. On September 19, 1977, the High Court set aside the
orders of the Sessions Judge. On the allegations, this is principally a case of criminal
conspiracy to murder a person in police custody be a bandit.
Police personnel from the Deputy Inspector General of Police-to-police constables are said to
be involved as accused. Before the FIR, there had been a preliminary inquiry conducted by
the CBI. Fifty-three witnesses were examined in that inquiry and six of them were said to be
eyewitnesses. These eyewitnesses were all police personnel. During this preliminary inquiry,
all the six alleged eyewitnesses did not support the prosecution case but gave statements in
favor of the accused. The FIR was lodged on June 10, 1977. During investigation, seven
witnesses including six persons already examined during the preliminary inquiry, gave
statements implicating the appellants in support of the prosecution. The witnesses were also
forwarded to the Magistrate for recording their statements under Section 164, Cr. P.C. All the
seven witnesses continued to support the prosecution case in their statements under Section
164. Six eyewitnesses who made such discrepant statements and had supported the defence
version at one stage, explained that some of the accused, namely, D.S.P. R. K. Sharma and
Inspector Harkesh had exercised pressure on them to make such statements in favour of the
defence. It is in the above background that the Delhi Administration moved the High
Court for cancellation of the bail granted by the Sessions Judge, alleging that there was
grave apprehension of the witnesses being tampered with by the accused persons on
account of their position and influence which they wielded over the witnesses.
Under the Code an accused, after being arrested, is produced before the Court of a
Magistrate. There is no provision in the Code whereby the accused is for the first time
produced after initial arrest before the Court of Session or before the High Court. Section
437(1) Cr.P.C. takes care of the situation arising out of an accused being arrested by the
police and produced before a Magistrate.
The Law of Bail
It is difficult to reach a conclusion that the Sessions Judge or the High Court need not
even bear in mind the guidelines which the Magistrate has necessarily to follow in
considering bail of an accused. It is not possible to hold that the Sessions Judge or the High
Court, certainly enjoying wide powers, will be oblivious of considerations of likelihood of
the accused being guilty of an offence punishable with death or imprisonment for life. Since
the Sessions Judge or the High Court will be approached by an accused only after
refusal of bail by the Magistrate, it is not possible to hold that the mandate of the law of
bail under Section 437 Cr.P.C for the Magistrate will be ignored by the High Court or
Sessions Judge.
Section 439
Section 439 of the new Code confers special powers on High Court or Court of Session
regarding bail. That is to say, even if a Magistrate refuses to grant bail to an accused person,
the High Court or the Court of Session may order for grant of bail in appropriate cases.
Similarly under Section 439(2) of the new Code, the High Court or the Court of Session may
direct a person who has been released on bail to be arrested and committed to custody.
Under Section 439(2) of the new Code, a
High Court may commit a person released on bail under Chapter XXXIII by any Court
including the Court of Session to custody, if it thinks appropriate to do so. It must, however,
be made clear that a Court of Session cannot cancel a bail which has already been granted by
the High Court unless new circumstances arise during th progress of the trial after an accused
p has been admitted to bail by the High Court.
If, however, a Court of Session had admitted an accused person to bail, the State has two
options. It may move the Sessions Judge if certain new circumstances have arisen which were
not earlier known to the State and necessarily, therefore, to that Court. The State may as well
approach the High Court being the superior court under Section 439(2) to commit the accused
to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting
bail and there are no new circumstances that have cropped up except those already existed, it
is futile for the State to move the Sessions Judge again and it is competent in law to move the
High Court for cancellation of the bail. This position follows from the subordinate position of
the Court of Session vis-a-vis the High Court.
It is significant to note that under Section 397, Cr.P.C, while the High Court and Sessions
Judge have concurrent powers of revision, it is expressly provided under sub-section (3) that
when an application under that section has been made by any person to the High Court or to
the Sessions Judge, no further application by the same person shall be entertained by the
other of them.
There is no provision in the new Code excluding jurisdiction of the High Court in dealing
with an application under
Section 439(2) Cr.P.C. to cancel bail after the Sessions Judge had been moved and an order
had been passed by him granting bail. The High Court has undoubtedly jurisdiction to
entertain the application under Section 439(2) Cr.P.C for cancellation of bail notwithstanding
that the Sessions Judge had earlier admitted the appellants to bail.
Section 436
Chapter XXXIll of the new Code contains provisions in respect of bail bonds.
Section 436, Cr.P.C. with which this Chapter opens makes an invariable rule for bail in case
of bailable offences subiect to the specified exception under sub-section (2) of that section.
Section 437
Section 437 Cr. P.C. provides as to when bail may be taken in case of non-bailable offences.
Sub-section (1) of Section 437, makes a dichotomy in dealing with non-bailable offences.
The first category relates to offences punishable with death or imprisonment for life and the
rest are all other non-bailable offences.
With regard to the first category, Section 437(1) imposes a bar to grant of bail by the Court or
the officer incharge of a police station to a person accused o suspected of the commission of
an offence punishable with death or imprisonment for life, if there appear reasonable grounds
for believing that he has been so guilty. Naturally, therefore, at the stage of investigation
unless there are some materials to justify an officer or the Court to believe that there are no
reasonable grounds for believing that the person accused of or suspected of the commission
of such an offence has been guilty of the same, there is a ban imposed under Section 437(1),
Cr. P.C. against granting of bail.
In all other non-bailable cases judicial discretion will always be exercised by the Court in
favour of granting bail subject to sub-section (3) of Section 437 with regard to imposition of
conditions, necessary. Under sub-section (4) an officer or a Court releasing any person on
bail under sub-section (1) or sub-section
(2) is required to record in writing his or its reasons for so doing. Law requires that in non-
bailable offences punishable with death or imprisonment for life, reasons have to be recorded
for releasing a person on bail, clearly disclosing how discretion has been exercised in that
behalf.
Section 437 deals with two stages during the initial period of investigation of a non-bailable
offence. Even the officer in-charge of the police station may, by recording his reasons in
writing, release person accused of or suspected of commission of any non-bailable offence
provided there are no reasonable grounds for believing that the accused has committed a non-
bailable offence punishable with death or imprisonment for life.
Quick arrests by the police may be necessary when there are sufficient materials for the
accusation or even for suspicion. When such an accused is produced before the Court, the
Court has a discretion to grant bail in all non-bailable cases except those punishable
with death or imprisonment for life if there appear to be reasons to believe that he has
been guilty of such offens The Courts over-see the action of th police and exercise judicial
discretion in granting bail, always bearing in mind that the liberty of an individual is not
unnecessarily and unduly abridged and at the same time the cause of justice does not suffer.
After the Court releases a person on bail under sub-section (1) or sub- section (2) of Section
437 it may direct him to be arrested again when it considers necessary so to do. This will be
also in exercise of its judicial discretion on valid grounds.
Under the first proviso to Section 167(2)
no Magistrate shall authorise detention of an accused in custody under that section for a total
period exceeding 60 days on the expiry of which the accused shall be released on bail if he is
prepared to furnish the same. This type of release under the proviso shall be deemed to be a
release under the provisions of Chapter XXXIII relating to bail. This proviso is an innovation
in the new Code and is intended to speed up investigation by the police so that a person does
not have to languish unnecessarily in prison facing a trial.
There is a similar provision under subsection (6) of Section 437. This provision is again
intended to speed up trial without unnecessarily detaining a person as an undertrial prisoner,
unless for reasons to be recorded in writing, the Magistrate otherwise directs. We may also
notice in this connection sub-section (7) of Section 437 which provides that any time after the
conclusion of a trial of any person accused of non-bailable offence and before the judgment is
delivered, the Court is of opinion that there are reasonable grounds for believing that the
accused is not guilty of such an offence, it shall release the accused, if he is in custody, on the
execution of him of a bond without sureties for his appearance to hear the judgment.
The principle underlying Section 437 is therefore, towards granting of bail exc cases where
there appear to be reasonable grounds for believing that the accused has been guilty of an
offence punishable with death or imprisonment for life and also
when there are other valid reasons to justify the refusal of bail.
Section 437 is concerned only with the Court of Magistrate. It expressly excludes the High
Court and the Court of Session. The language of Section 437(1) may be contrasted with
Section 437(7).
While under subsection (1) the words are: "If there appear to be reasonable grounds for
believing that he has been guilty", sub-section (7) says: "that there are reasonable grounds for
believing that the accused is not guilty of such an offence". This difference in language
occurs on account of the stage at which the two sub-sections operate. During the initial
investigation of a case in order confine a person in detention, there should only appear
reasonable grounds for believing that he has been guilty of an offence punishable with death
or imprisonment for life. Whereas after submission of charge-sheet or during trial for such an
offence the Court has an
opportunity to form somewhat clear opinion as to whether there are reasonable grounds for
believing that the accused is not guilty of such an offence.
Whenever a person is arrested by the police for such an offence, there should be materials
produced before thebefore the Court to come to a conclusion as to the nature of the case he is
involved in or he is suspected of. If at that stage from the materials available there appear
reasonable grounds for believing that the person has been guilty of an offence punishable
with death or imprisonment for life, the Court has no other option than to commit him to
custody. At that stage, the Court is concerned with the existence of the materials against the
accused and not as to whether those materials are credible or not on the merits.
In other non-bailable cases the Court will exercise its iudicial discretion in favour of granting
bail subject to sub-section (3) of Section 437, Cr.P.C if it deems necessary to act under it.
Unless exceptional circumstances are brought to the notice of the Court which may defeat
proper investigation and a fair trial, the Court will not decline to grant bail to a person who is
not accused of an offence punishable with death or imprisonment for life.
It is also clear that when an accused is brought before the Court of a Magistrate with the
allegation against him of an offence punishable with death or imprisonment for life, he has
ordinarily no option in the matter but to refuse bail subject, however, to the first proviso to
Section 437(1) and in a case where the Magistrate entertains a reasonable belief on the
materials that the accused has not been guilty of such an offence. This will, however, be an
extraordinary occasion since there will be some materials at the stage of initial arrest for the
accusation or for strong suspicion of commission by the person of such an offence.
It is difficult to conceive how if a police officer arrests a person on a reasonable suspicion of
commission of an offence punishable with death or imprisonment for life Section 41 of the
new Code and forwards him to a Magistrate [Section 167(1) of the new Code] the Magistrate
at that stage will have reasons to hold that there are no reasonable grounds for believing that
he has not been guilty of such an offence. At that stage unless the Magistrate is able to act
under the proviso to Section 437(1) bail appears to be out of question. The only limited
inquiry may then relate to the materials for the suspicion. The position will naturally change
as investigation progresses and more facts and circumstances come to
light.
Section 439
Section 439(1) of the new Code, on the other hand, confers special powers on the High Court
or the Court of Session in respect of bail. Unlike under Section 437(1) there is no ban
imposed under Section 439(1) against granting of bail by the High Court or the Court of
Session to persons accused of an offence punishable with death or imprisonment for life. It is,
however, legitimate to suppose that the High Court or the Court of Session will be
approached by an accused only after he has failed before the Magistrate and after the
investigation has progressed throwing light on the evidence and circumstances implicating
the accused.
Even so, the High Court or the Court of Session will have to exercise its judicial discretion in
considering the question of granting of bail under Section 439(1). The over-riding
considerations in granting bail to which we adverted to earlier and which are common both in
the case of Section 437(1) and Section 439(1) are the nature and gravity of the circumstances
in which the offence is committed; the position and the status of the accused with reference to
the victim and the witnesses; the likelihood of the accused fleeing from justice; of repeating
the offence; of jeopardising his own life being faced with a grim prospect of possible
conviction in the case; of tampering with witnesses; the history of the case as well as of its
investigation and other relevant grounds which, in view of so many valuable factors, cannot
be exhaustively set out.
The question of cancellation of bail under Section 439(2) is certainly different from
admission to bail under Section 439(1).
In considering the question of bail justice to both sides governs the judicious exercise of the
Court's judicial discretion.
Ordinarily the High Court will not exercise its discretion to interfere with an order of bail
granted by the Sessions Judge in favour of an accused.
Application of the law on the facts of this case
In the peculiar nature of the case revealed from the allegations and the position of the
appellants in relation to the eyewitnesses it was incumbent upon the Sessions Judge to give
proper weight to the serious apprehension of the prosecution with regard to tampering with
the eyewitnesses, which was urged before him in resisting the application for bail. The matter
would have been different if there was absolutely no basis for the apprehension of the
prosecution with regard to tampering of the witnesses and the allegation rested only on a bald
statement.
The witnesses stated on oath under Section 164 that they had made the earlier statements due
to pressurisation by some of the appellants. Where the truth lies will be determined at the
trial.
The only question which the Sessions Judge was required to consider at that stage was
whether there was a prima facie case made out, as alleged, on the statements of the witnesses
and on other materials. There appeared at least nothing at that stage against the statement of
ASI Gopal Das who had made no earlier contradictory statement. Whether his evidence will
ultimately be held to be trustworthy will be an issue at the stage of trial.
In considering the question of bail of an accused in a non-bailable offence punishable with
death or imprisonment for life, it is necessary for the Court to consider whether the evidence
discloses a prima facie case to warrant his detention in bail besides the other relevant factors
referred to above. As a link in the chain of criminal conspiracy the prosecution is also relying
on the conduct of some of the appellants in taking Sunder out of police lockup for making
what is called a false discovery and it is but fair that the Panch witness in that behalf be not
allowed to be got at.
2 paramount considerations, viz. likelihood of the accused fleeing from justice and his
tampering with prosecution evidence, relate to ensuring a fair trial of the case in a Court of
Justice. It is essential that due and proper weight should be bestowed on these two factors
apart from others.
We are satisfied that the High Court has correctly appreciated the entire position.
We find that the case is now before the committing Magistrate. The Magistrate will,
therefore, without loss of further time pass an appropriate order under Section 209. The
Court of Session will, thereafter, commence trial at an early date and examine all the
eyewitnesses first and such other material witnesses thereafter as may be produced by
the prosecution as early as possible. Trial should proceed de die in diem as far as
practicable at least so far as the eyewitnesses and the above referred to Panch witness
are concerned. After statements of the eyewitnesses and the said Panch witness have
been recorded, it will be open to the accused to move the Sessions Judge for admitting
them to bail, pending further hearing.

8. P. Chidambaram v. Directorate Of Enforcement (2020) 13 SCC 791-Anticipatory

bail
TRIPOD case- Tampering evidence, witness, risk of flight
Dismissed the fervent plea of pre-arrest bail plea made by him. Prevention of Money
Laundering Act and the scope of power vested under Section 438 of CrPC to grant
anticipatory bail. Discussed the scope of power vested under Section 438 of CrPC to grant
anticipatory bail.
Facts- The High Court of Delhi rejected the appellant's plea for anticipatory bail in the
the appellant tried to get the matter listed in the Supreme Court on 21.08.2019; but the
appellant could not get an urgent hearing in the Supreme Court seeking stay of the
impugned order of the High Court. The appellant was arrested by the CBI on the night
of 21.08.2019. Since the appellant was arrested and remanded to custody in CBI case, in
view of the judgment of the Constitution Bench in Shri Gurbaksh Singh Sibbia and
others v. State of Punjab (1980) 2 SCC 565, the appellant cannot seek anticipatory bail
after he is arrested. Accordingly, SLP (Cri.) No. 7525 of 2019 preferred by the appellant
qua the CBI case was dismissed as infructuous vide order dated 26.08.2019 on the ground
that the appellant has already been arrested and remanded to custody. This Court granted
liberty to the appellant to work out his remedy in accordance with law.

Moving on, para 6 then further states that, Upon receipt of a complaint on the basis of a
cheque for an amount of Rs. 10,00,000/- made in favour of M/s Advantage Strategic
Consulting Private Limited (ASCPL) by INX Media, the investigation wing of the Income
Tax Department proceeded to investigate the matter and the relevant information was
sought from the FIPB, which in turn, vide its letter dated 26.05.2008 sought clarification
from the INX Media which justified its action saying that the downstream investment has
been authorised and that the same was made in accordance with the approval of FIPB. It is
alleged by the prosecution that in order to get out of the situation without any penal
provision, INX Media entered into a criminal conspiracy with Sh. Karti Chidambaram,
Promoter Director, Chess Management Services Pvt. Ltd. and the appellant-the then Finance
Minister of India. INX Media through the letter dated 26.06.2008 tried to justify their action
stating that the downstream investment has been approved and the same was made in
accordance with approval.

While continuing in the same vein, it is then envisaged in para 9 that, The High Court
dismissed the application refusing to grant anticipatory bail to the appellant by holding
that it is a classic case of money-laundering. The High Court observed that it is a clear
case of money-laundering. The learned Single Judge dismissed the application for
anticipatory bail by holding that the alleged irregularities committed by the appellant
makes out a prima facie case for refusing pre-arrest bail to the appellant. The learned
Single Judge also held that considering the gravity of the offence and the evasive reply
given by the appellant to the questions put to him while he was under the protective
cover extended to him by the court are the twin factors which weigh to deny the pre-
arrest bail to the appellant. Being aggrieved, the appellant preferred this appeal.
More importantly, it is then very rightly pointed out in para 55 that, Of course, while
considering the request for anticipatory bail and while perusing the materials/note produced
by the Enforcement Directorate/CBI, the learned Single Judge could have satisfied his
conscience to hold that it is not a fit case for grant of anticipatory bail. On the other hand, the
learned Single Judge has verbatim quoted the note produced by the respondent-Enforcement
Directorate. The learned Single Judge was not right in extracting the note produced by
the Enforcement Directorate/CBI which in our view, is not a correct approach for
consideration of grant/refusal of anticipatory bail. But such incorrect approach of the
learned Single Judge, in our view, does not affect the correctness of the conclusion in
refusing to grant of anticipatory bail to the appellant in view of all other aspects
considered herein.

Conclusion- Of course, while clarifying that pre-arrest bail should be given only in
exceptional cases, it is then made clear in para 67 that, Ordinarily, arrest is a part of
procedure of the investigation to secure not only the presence of the accused but several
other purposes. Power under Section 438 Cr.P.C. is an extraordinary power and the
same has to be exercised sparingly. The privilege of the pre-arrest bail should be
granted only in exceptional cases. The judicial discretion conferred upon the court has
to be properly exercised after application of mind as to the nature and gravity of the
accusation; possibility of applicant fleeing justice and other factors to decide whether it
is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent
interferes in the sphere of investigation of an offence and hence, the court must be
circumspect while exercising such power for grant of anticipatory bail. Anticipatory
bail is not to be granted as a matter of rule and it has to be granted only when the court
is convinced that the exceptional circumstances exist to resort to that extraordinary
remedy.

Needless to say, it is then clarified in para 69 that, Article 21 of the Constitution of India
states that no person shall be deprived of his life or personal liberty except according to
procedure prescribed by law. However, the power conferred by Article 21 of the
Constitution of India is not unfettered and is qualified by the later part of the Article i.e.
...except according to a procedure prescribed by law. In State of M.P. and another v. Ram
Krishna Balothia and another (1995) 3 SCC 221, the Supreme Court held that the right to
anticipatory bail is not a part of Article 21 of the Constitution of India and held as under:-
Also, anticipatory bail cannot be granted as a matter of right. It is essentially a statutory
right conferred long after the coming into force of the Constitution. It cannot be
considered as an essential ingredient of Article 21 of the Constitution. And its non-
application to a certain special category of offences cannot be considered as violative of
Article 21. [underlining added]
Frankly speaking, it is then conceded in para 70 that, We are conscious of the fact that the
legislative intent behind the introduction of Section 438 Cr.P.C. is to safeguard the
individual's personal liberty and to protect him from the possibility of being humiliated
and from being subjected to unnecessary police custody. However, the court must also
keep in view that a criminal offence is not just an offence against an individual, rather
the larger societal interest is at stake. Therefore, a delicate balance is required to be
established between the two rights – safeguarding the personal liberty of an individual
and the societal interest. It cannot be said that refusal to grant anticipatory bail would amount
to denial of the rights conferred upon the appellant under Article 21 of the Constitution of
India.

While explaining why anticipatory bail should not be given at the stage of investigation
and in economic offences, it is then usefully pointed out in para 81 that, Grant of
anticipatory bail at the stage of investigation may frustrate the investigating agency in
interrogating the accused and in collecting the useful information and the materials which
might have been concealed. Success in such interrogation would elude if the accused knows
that he is protected by the order of the court. Grant of anticipatory bail, particularly in
economic offences would definitely hamper the effective investigation. Having regard to
the materials said to have been collected by the respondent-Enforcement Directorate
and considering the stage of the investigation, we are of the view that it is not a fit case
to grant anticipatory bail.

Most importantly, while explaining why bail should not be given to P Chidambaram, it is
then held in para 82 that, In a case of money-laundering where it involves many stages of
placement, layering i.e. funds moved to other institutions to conceal origin and interrogation
i.e. funds used to acquire various assets, it requires systematic and analyzed investigation
which would be of great advantage. As held in Anil Sharma, success in such interrogation
would elude if the accused knows that he is protected by a pre-arrest bail order. Section
438 Cr.P.C. is to be invoked only in exceptional cases where the case alleged is frivolous or
groundless. In the case in hand, there are allegations of laundering the proceeds of the crime.
The Enforcement Directorate claims to have certain specific inputs from various sources,
including overseas banks. Letter rogatory is also said to have been issued and some response
have been received by the department. Having regard to the nature of allegations and the
stage of the investigation, in our view, the investigating agency has to be given sufficient
freedom in the process of investigation. Though we do not endorse the approach of the
learned Single Judge in extracting the note produced by the Enforcement Directorate, we do
not find any ground warranting interference with the impugned order. Considering the facts
and circumstances of the case, in our view, grant of anticipatory bail to the appellant
will hamper the investigation and this is not a fit case for exercise of discretion to grant
anticipatory bail to the appellant.

Finally, it also cannot be lost on us as to what is then held in the last para 83 that, In the
result, the appeal is dismissed. It is for the appellant to work out his remedy in accordance
with law. As and when the application for regular bail is filed, the same shall be considered
by the learned trial court on its own merits and in accordance with law without being
influenced by any of the observations made in this judgment and the impugned order of the
High Court.
The term anticipatory bail implies a direction to release a person on bail issued even before
the person is arrested. It basically states that it is possible to apply for bail in anticipation of
arrest.
When courts grant an anticipatory bail, it makes an order that IN THE EVENT of an arrest,
a person shall be released. Therefore, it is only ON ARREST that the order granting
anticipatory bail becomes operative.
The distinction between a regular bail and anticipatory bail is – the former is granted post-
arrest and latter is effective at the very moment of arrest.
The provisions of s.438 cannot be invoked after the arrest of the accused. After arrest the
accused must seek his remedy under 437/439.
Process for anticipatory bail
• The section contemplates two concurrent jurisdictions – the HC and Session Court. It
is left to the person to choose either of them. A person after unsuccessfully moving the
 Sessions Court for anticipatory bail can AGAIN approach the HC for the same
purpose under the same section.
• However, if he moves the HC first and his application is rejected he cannot approach
the sessions court with a similar application. Thus, it is normally presumed that the
Sessions Court would be first approached for the grant of anticipatory Bail unless an
adequate case for not approaching the said court can be made out.
• Application of Anticipatory bail would be maintainable even after Magistrate issues
process or at the stage of committal to the Sessions Court.

9. Sushila Aggarwal v. State (NCT of Delhi) (2020 5 SCC 1)

Issue- Whether the protection granted to a person under Section 438 CrPC should be limited
to a fixed period so as to enable the person to surrender before the trial court and seek
regular bail?
(2) Whether the life of an anticipatory bail should end at the time and stage when the
accused is summoned by the court?= Ends trial
Gurubaksh singh sibbia guidelines
 The power though of ‘extraordinary character’ does not justify its use except in
exceptional cases. Due care, caution and circumspection must be used while
exercising such powers.
 The Individual applying for anticipatory bail must have a reasonable apprehension
of getting arrested for a non-bailable offence, which can be objectively examined by
the court.
 Anticipatory bail must not be denied in cases where the accused is suspected to have
committed an offence punishable in the form of death penalty or life imprisonment
unless the court has sufficient evidence before it to justify the refusal.
 Blanket or protective orders of bail should not be passed. Also, for efficient
investigation, certain conditions can be imposed under Section-438(2) such as on
discovery of a material or evidence in regard to the case.
 Filing of FIR is not a condition precedent to the grant of anticipatory bail under
section 438 and the individual can be granted bail as long as no arrest has been made.
 The provisions under Section 438 cannot be invoked after the arrest has been
made.
 Under Section 438, interim bail order can be passed without issuing a notice to
the Public Prosecutor but it should be mandatorily issued to him afterwards. The
court has the discretionary powers to impose suitable conditions in case of such
interim bails.
 The court has no power to limit the operation of anticipatory bail. The applicant may
be asked to obtain a bail order under Sections 437 or 439 of Cr.P.C. after the filing of
FIR has taken place if he has contravened anticipatory bail conditions.
Power to grant “anticipatory bail” under Section 438 CrPC vests only with the Court of
Session or the High Court….
 The only difference between the pre-arrest bail order under Section 438 and the bail order
under Sections 437 and 439 is the stages at which the bail order is passed.
The bail order under Section 438 CrPC is prior to his arrest and in anticipation of his arrest
and the order of bail under Sections 437 and 439 is after a person is arrested.
It cannot be disputed that the decision of this Court in Gurbaksh Singh Sibbia is a
Constitution Bench decision which is binding unless it is upset by a larger Bench than the
Constitution Bench.
• 7.6. … We are of the opinion that the conditions can be imposed by the court concerned
while granting pre-arrest bail order including limiting the operation of the order in relation to
a period of time if the circumstances so warrant, more particularly the stage at which the
“anticipatory bail” application is moved, namely, whether the same is at the stage before the
FIR is filed or at the stage when the FIR is filed and the investigation is in progress or at the
stage when the investigation is complete and the charge-sheet is filed. However, as observed
hereinabove, the normal rule should be not to limit the order in relation to a period of
time.
Re Question 1 : Whether the protection granted to a person under Section 438 CrPC
should be limited to a fixed period so as to enable the person to surrender before the
trial court and seek regular bail.
• 47. Section 438 CrPC provides for the issuance of directions for the grant of bail to a
person apprehending arrest.
• …Section 438 does not expressly use the term “anticipatory bail”; its language
instead empowers the court concerned to issue directions for grant of bail
• 48. The Law Commission of India, in its 41st Report of 1969, noted that the necessity
for granting anticipatory bail arises mainly due to influential persons attempting to
implicate their rivals in false cases, or disgracing them by getting them detained in
jail.
• The Report further noted that apart from false cases, where there are reasonable
grounds for holding that a person accused of an offence is not likely to abscond, or
otherwise misuse his liberty while on bail, there seems to be no justification to require
him first to submit to custody, remain in prison for some days and then apply for bail.
…
• 49. …Grant of bail, according to Wharton's Law Lexicon, and as noticed in Gurbaksh
Singh Sibbia v. State of Punjab, (1980) 2 SCC 565), means to “set at liberty a person
arrested or imprisoned, on security being taken for his appearance”
• Gurbaksh Singh Sibbia observed thus : (SCC pp. 574-75, para 7) :
• “7. … The distinction between an ordinary order of bail and an order of anticipatory
bail is that whereas the former is granted after arrest and therefore means release
from the custody of the police, the latter is granted in anticipation of arrest and is
therefore effective at the very moment of arrest.
 • Police custody is an inevitable concomitant of arrest for non-bailable offences. An
order of anticipatory bail, constitutes, so to say, an insurance against police custody
following upon arrest for offence or offences in respect of which the order is issued.
• In other words, unlike a post-arrest order of bail, it is a pre-arrest legal process
which directs that if the person in whose favour it is issued is thereafter arrested on
the accusation in respect of which the direction is issued, he shall be released on bail
• Section 46(1) of the Criminal Procedure Code which deals with how arrests are to be
made, provides that in making the arrest, the police officer or other person making the
arrest ‘shall actually touch or confine the body of the person to be arrested, unless
there be a submission to the custody by word or action’.
• A direction under Section 438 is intended to confer conditional immunity from this
“touch” or confinement.

Re Question 2 : Whether the life of an anticipatory bail should end at the time and stage
when the accused is summoned by the court.
• 77. The question here is whether there is anything in the law which per se requires
that upon filing of the charge-sheet, or the summoning of the accused, by the court —
his liberty ought to be forfeited and that he should be asked to surrender and apply for
regular bail.
• 77.3… if a charge-sheet is filed where the accused is on anticipatory bail, the normal
implication would be that there was no occasion for the investigating agency or the
police to require his custody, because there would have been nothing in his behavior
requiring such a step. ...
• 77.4. At the same time, however, at any time during the investigation were any
occasion to arise calling for intervention of the court for infraction (violation) of any
of the conditions imposed under Section 437(3) read with Section 438(2) or the
violation of any other condition imposed in the given facts of a case, recourse can
always be had under Section 439(2).
• 83. Therefore, unless circumstances to the contrary : in the form of behaviour of the
accused suggestive of his fleeing from justice, or evading the authority or jurisdiction
of the court, or his intimidating witnesses, or trying to intimidate them, or violate any
condition imposed while granting anticipatory bail, the law does not require the
person to surrender to the court upon summons for trial being served on him.
• Subject to compliance with the conditions imposed, the anticipatory bail given to a
person, can continue till end of the trial.
• This answers Question 2 referred to the present Bench.
FINAL CONCLUSIONS OF THE COURT: 91. … following answers to the reference are set
out:
• 91.1. Regarding Question 1, this Court holds that the protection granted to a person under
Section 438 CrPC should not invariably be limited to a fixed period; it should enure (be
available) in favour of the accused without any restriction on time.
Normal conditions under Section 437(3) read with Section 438(2) should be imposed; if
there are specific facts or features in regard to any offence, it is open for the court to impose
any appropriate condition (including fixed nature of relief, or its being tied to an event), etc.
91.2. As regards the second question referred to this Court, it is held that the life or duration
of an anticipatory bail order does not end normally at the time and stage when the accused is
summoned by the court, or when charges are framed, but can continue till the end of the trial.
Again, if there are any special or peculiar features necessitating the court to limit the
tenure of anticipatory bail, it is open for it to do so
• Consistent with the judgment in [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2
SCC 565] , when a person complains of apprehension of arrest and approaches for
order, the application should be based on concrete facts (and not vague or
general allegations) relatable to one or other specific offence.
• The application seeking anticipatory bail should contain bare essential facts
relating to the offence, and why the applicant reasonably apprehends arrest, as
well as his side of the story.
• These are essential for the court which should consider his application, to evaluate the
threat or apprehension, its gravity or seriousness and the appropriateness of any
condition that may have to be imposed.
• It is not essential that an application should be moved only after an FIR is filed;
it can be moved earlier, so long as the facts are clear and there is reasonable basis for
apprehending arrest.
Anticipatory bail-
92.5. Anticipatory bail granted can, depending on the conduct and behaviour of the accused,
continue after filing of the charge-sheet till end of trial.
92.6. An order of anticipatory bail should not be “blanket” in the sense that it should not
enable the accused to commit further offences and claim relief of indefinite protection from
arrest. It should be confined to the offence or incident, for which apprehension of arrest is
sought, in relation to a specific incident. It cannot operate in respect of a future incident that
involves commission of an offence.
92.7. An order of anticipatory bail does not in any manner limit or restrict the rights or duties
of the police or investigating agency, to investigate into the charges against the person who
seeks and is granted pre-arrest bail.…
restrictive conditions can be imposed, while granting anticipatory bail.
S439 2
• 92.9. It is open to the police or the investigating agency to move the court concerned,
which grants anticipatory bail, for a direction under Section 439(2) to arrest the
accused, in the event of violation of any term, such as absconding, non-cooperating
 during investigation, evasion, intimidation or inducement to witnesses with a view to
influence outcome of the investigation or trial, etc.
• 92.10. The court referred to in para 92.9 above is the court which grants anticipatory
bail, in the first instance, according to prevailing authorities.
• 92.11. The correctness of an order granting bail, can be considered by the appellate or
superior court at the behest of the State or investigating agency, and set aside on the
ground that the court granting it did not consider material facts or crucial
circumstances. … This does not amount to “cancellation” in terms of Section 439(2)
CrPC

Elements of Fair Trial-

Universally accepted that a person accused should not be punished unless is guilt has been
established through a fair trial. Fair trial cannot be explained in absolute terms, it’s a relative
concept and can be measured only in relation to the gravity of the accusation, time and
resources which society can afford to spend, quality of resources, social values etc. Besides a
degree of fairness, essential attributes of a fair trial can be identified.
• Universal Declaration of Human Rights
Everyone is entitled in full equality to a fair and public hearing by an independent and
impartial tribunal, in the determination of his rights and obligations and of any criminal
charge against him. (Article 10)
Everyone charged with a penal offence has the right to be presumed innocent until proved
guilty according to law in a public trial at which he has had all the guarantees necessary for
his defence. (Article 11)

1. Nar Singh v. State of Haryana (2015) 1 SCC 496- Examination of accused u/s 313
Facts- On 6/3/2005, Rajbir went to sleep on the street on a cot at about 7.30 p.m. and Daya
Nand (P.W. 7) also went to sleep in his house at about 9.00 p.m. At 11.00 P.M., Daya Nand
found Rajbir bleeding. He went to call the doctor, but the doctor refused to accompany him.
When Daya Nand returned, Rajbir had already succumbed to injuries. He filed FIR. PW-14
had taken up the investigation and an inquest were conducted on the body of the deceased
Rajbir. Dr. J.K. Bhalla (PW-10) conducted autopsy on the body of deceased Rajbir and a
country-made bullet was seized from the occipital area of the brain of deceased Rajbir. Dr.
Bhalla opined that the death was due to injury to the brain and he issued Ex P-13-post
mortem certificate. Site plan of the scene of occurrence was prepared and material objects
were seized. The appellant-accused was arrested on 14/3/2005 and based on his confession
statement, a pistol was recovered behind a water tank in the house of the appellant-
accused. On completion of the investigation, charge sheet was filed against the appellant
under Section 302 IPC, and Section 25(1B) of the Arms Act.
trial court convicted the appellant and sentenced him to undergo imprisonment as aforesaid.
On appeal, the High Court affirmed. Being aggrieved, the appellant has preferred this appeal
by special leave.
• While doing so, the trial court relied upon the Forensic Science Laboratory
Report (FSL) (Ex P-12) as a vital piece of evidence against the appellant.
• The High Court also relied upon FSL report as material evidence to sustain the
conviction of the appellant.
Appellants contention-
The only incriminating circumstantial evidence against the appellant was Ex P-12 FSL report
and the same was not put to the appellant while he was being questioned under Section 313.
It was submitted that Section 313 Cr.P.C. makes it mandatory to put all the incriminating
evidence and circumstances to the accused and Ex P-12 FSL report, which is the basis for
conviction of the appellant, has not been put to the accused and non-questioning of the
accused as to the vital piece of evidence is fatal to the prosecution case and vitiates the
conviction.
Whether non- compliance of the mandatory provisions of Section 313 Cr.P.C. vitiates the
trial and conviction of the appellant??
There are two kinds of examination under Section 313 Cr.P.C :-
at any stage of the inquiry or trial; while the second takes place after the prosecution
witnesses are examined and before the accused is called upon to enter upon his defense.
The former is particular and optional; but the latter is general and mandatory.
In Usha K. Pillai v. Raj K. Srinivas & Ors., (1993) 3 SCC 208, this Court held that the Court
is empowered by Section 313 (1) clause (a) to question the accused at any stage of the inquiry
or trial; while Section 313(1) clause (b) obligates the Court to question the accused before he
enters his defense on any circumstance appearing in prosecution evidence against him.
The object of Section 313 (1)(b) Cr.P.C. is to bring the substance of accusation to the accused
to enable the accused to explain each and every circumstance appearing in the evidence
against him.
The provisions of this section are mandatory and cast a duty on the court to afford an
opportunity to the accused to explain each and every circumstance and incriminating
evidence against him.
The examination of accused under Section 313 (1)(b) Cr.P.C. is not a mere
formality. Section 313 Cr.P.C. prescribes a procedural safeguard for an accused, giving him
an opportunity to explain the facts and circumstances appearing against him in the evidence
and this opportunity is valuable from the standpoint of the accused.
The real importance of Section 313 Cr.P.C. lies in that, it imposes a duty on the Court to
question the accused properly and fairly so as to bring home to him the exact case he
will have to meet and thereby, an opportunity is given to him to explain any such point
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.”
Main contention of the appellant is that since the material evidence Ex-P12 and Ballistic
Expert opinion was not put to him in his statement under Section 313 Cr.P.C., it must
be completely excluded from consideration and barring the same, there is no other
evidence to sustain the conviction.
Undoubtedly, the importance of a statement under Section 313 Cr.P.C., insofar as the accused
is concerned, can hardly be minimized.

If an objection as to Section 313 Cr.P.C. statement is taken at the earliest stage, the Court can
make good the defect and record an additional statement of the accused as that would be in
the interest of all.
When objections as to defective Section 313 Cr.P.C. statement is raised in the appellate court,
then difficulty arises for the prosecution as well as the accused. When the trial court is
required to act in accordance with the mandatory provisions of Section 313 Cr.P.C., failure
on the part of the trial court to comply with the mandate of the law, in our view, cannot
automatically endure to the benefit of the accused.
Any omission on the part of the Court to question the accused on any incriminating
circumstance would not ipso facto vitiate the trial, unless some material prejudice is shown to
have been caused to the accused. Insofar as non-compliance of mandatory provisions
of Section 313 Cr.P.C.
So far as Section 313 Cr.P.C. is concerned, undoubtedly, the attention of the accused must
specifically be brought to inculpable pieces of evidence to give him an opportunity to offer an
explanation, if he chooses to do so.
The question whether a trial is vitiated or not depends upon the degree of the error and the
accused must show that non-compliance of Section 313 Cr.P.C. has materially prejudiced
him or is likely to cause prejudice to him.
• Merely because of defective questioning under Section 313 Cr.P.C., it cannot be
inferred that any prejudice had been caused to the accused, even assuming that some
incriminating circumstances in the prosecution case had been left out
• When prejudice to the accused is alleged, it has to be shown that accused has suffered
some disability or detriment in relation to the safeguard given to him under Section
313 Cr.P.C.
• Such prejudice should also demonstrate that it has occasioned failure of justice to the
accused. The burden is upon the accused to prove that prejudice has been caused
to him or in the facts and circumstances of the case, such prejudice may be
implicit and the Court may draw an inference of such prejudice
Recourse
• If all the relevant questions were not put to accused by the trial court and when the
accused has shown that prejudice was caused to him, the appellate court is having
power to remand the case to examine the accused again under Section
313 Cr.P.C. and
• may direct remanding the case again for re-trial of the case from that stage of
recording of statement under Section 313 Cr.P.C. and the same cannot be said to
be amounting to filling up lacuna in the prosecution case.
i) Whenever a plea of non-compliance of Section 313 Cr.P.C. is raised, it is within
the powers of the appellate court to examine and further examine the convict or the
counsel appearing for the accused and the said answers shall be taken into
consideration for deciding the matter. If the accused is unable to offer the appellate
court any reasonable explanation of such circumstance, the court may assume that the
accused has no acceptable explanation to offer;
• ii) In the facts and circumstances of the case, if the appellate court comes to the
conclusion that no prejudice was caused or no failure of justice was occasioned,
the appellate court will hear and decide the matter upon merits.
• (iii) If the appellate court is of the opinion that non-compliance with the provisions
of Section 313 Cr.P.C. has occasioned or is likely to have occasioned prejudice to
the accused, the appellate court may direct retrial from the stage of recording the
statements of the accused from the point where the irregularity occurred, that is, from
 the stage of questioning the accused under Section 313 Cr.P.C. and the trial Judge
may be directed to examine the accused afresh and defense witness if any and dispose
of the matter afresh;
• (iv) The appellate court may decline to remit the matter to the trial court for retrial on
account of long time already spent in the trial of the case and the period of sentence
already undergone by the convict and in the facts and circumstances of the case, may
decide the appeal on its own merits, keeping in view the prejudice caused to the
accused.
Held- While we are of the view that the matter has to be remitted to the trial court for
proceeding afresh from the stage of Section 313 Cr.P.C. questioning, we are of the view
when there is omission to put material evidence to the accused in the course of
examination under Section 313 Cr.P.C., prosecution is not guilty of not adducing or
suppressing such evidence; it is only the failure on the part of the learned trial court
• Coming to the facts of this case, FSL Report (Ex-P12) was relied upon both by the
trial court as well as by the High Court. The objection as to the defective
313 Cr.P.C. statement has not been raised in the trial court or in the High Court
and the omission to put the question under Section 313 Cr.P.C., and prejudice
caused to the accused is raised before this Court for the first time.
• In our view, accused is not entitled for acquittal on the ground of non-compliance
of mandatory provisions of Section 313 Cr.P.C.
• We agree to some extent that the appellant is prejudiced on account of omission to
put the question as to the opinion of Ballistic Expert (Ex- P12) which was relied
upon by the trial court as well as by the High Court.
• Trial court should have been more careful in framing the questions and in ensuring
that all material evidence and incriminating circumstances were put to the accused.
• However, omission on the part of the Court to put questions under Section
313 Cr.P.C. cannot enure to the benefit of the accused.

The High Court affirmed the conviction for both the offences and imposed sentence of
imprisonment on the appellant. The prosecution relied on circumstantial evidence to
establish the guilt of the accused. The trial court relied upon the forensic science
laboratory (FSL) report as a vital piece of evidence against the appellant. The learned
Senior Counsel mainly contended that the only incriminating circumstantial evidence
against the appellant was the FSL report and the same was not put to the appellant
while he was being questioned under Section 313 of the Criminal Procedure Code.

Issues:
Whether the non-questioning of the accused as to FSL report and an expert opinion
during questioning under Section 313 CrPC will vitiate the trial?
What is the object of examination of an accused under Section 313 of the Code?
Whether the accused is entitled to acquittal on the ground of non-compliance with the
mandatory provisions of Section 313 CrPC?
Whether the accused has a right to speedy trial?
Decision:
The Court remanded the case to the trial court to proceed afresh from the stage of
examination under Section 313 CrPC. The accused is not entitled to acquittal on the
ground of non-compliance with the mandatory provisions of Section 313 CrPC. The
trial court should have been more careful in framing the questions and in ensuring that
all material evidence and incriminating circumstances were put to the accused.
However, omission on the part of the Court to put questions under Section 313 CrPC
cannot enure to the benefit of the accused. Since the Court is setting aside the conviction
imposed upon the appellant-accused, the appellant-accused is at liberty to move for bail,
if he is so advised. On such bail application being moved by the appellant-accused, the
trial court shall consider the same in accordance with law. The Court made it clear that
they have not expressed any opinion on the merits of the matter.

Reasoning:
The object of Section 313(1)(b) CrPC is to bring the substance of accusation to the
accused to enable the accused to explain each and every circumstance appearing in the
evidence against him. Section 313 CrPC prescribes a procedural safeguard for an
accused, giving him an opportunity to explain the facts and circumstances appearing
against him in the evidence and this opportunity is valuable from the standpoint of the
accused. Therefore, the court is under a legal obligation to put the incriminating
circumstances before the accused and solicit his response. The accused must show that
non-compliance with Section 313 CrPC has materially prejudiced him or is likely to
cause prejudice to him. The Court held that omission on the part of the Court to put
questions under Section 313 CrPC cannot enure to the benefit of the accused. The Court
also mentioned that they are not oblivious of the right of the accused to speedy trial and
that the courts are to ensure speedy justice to the accused.

2. Hardeep Singh v State of Punjab

Issue- the scope and extent of the powers of the courts under the criminal justice system to
arraign any person as an accused during the course of inquiry or trial as contemplated under
Section 319.
Questions posed:

When the power under sub-section (1) of Section 319 of the Code of addition of the accused
can be exercised by a court? Whether application under Section 319 is not maintainable
unless the cross-examination of the witness is complete?
What is the test and what are the guidelines of exercising power under sub-section (1) of
Section 319 of the Code?
Whether the word “evidence” used in Section 319(1) CrPC has been used in a comprehensive
sense and includes the evidence collected during investigation or the word “evidence” is
limited to the evidence recorded during trial?
Whether the power under Section 319 CrPC can be exercised at the stage of committal of the
case to the Court of Session?
Whether the power under Section 319 CrPC can be exercised by the High Court in revisional
jurisdiction?
Does the power under Section 319 CrPC extend to persons not named in the FIR or named in
the FIR but not charge-sheeted or who have been discharged?

Analysis and Conclusion:

The court can exercise the power under Section 319 CrPC only after the trial proceeds and
commences with the recording of the evidence and also in exceptional circumstances.
The power under Section 319 CrPC can be exercised only on the basis of the evidence
adduced before the court during a trial. The word “evidence” in Section 319 CrPC
contemplates the evidence of the witnesses given in the court. A person not named in the
FIR or a person though named in the FIR but has not been charge-sheeted or a person
who has been discharged can be summoned under Section 319 CrPC provided from the
evidence it appears that such person can be tried along with the accused already facing
trial. However, insofar as an accused who has been discharged is concerned the requirement
of Sections 300 and 398 CrPC has to be complied with before he can be summoned afresh.

Ruling: The power under Section 319 CrPC can be exercised only after the trial proceeds and
commences with the recording of the evidence and also in exceptional circumstances. The
power under Section 319 CrPC can be exercised only on the basis of the evidence adduced
before the court during a trial. A person not named in the FIR or a person though named in
the FIR but has not been charge-sheeted or a person who has been discharged can be
summoned under Section 319 CrPC provided from the evidence it appears that such person
can be tried along with the accused already facing trial.

(i) What is the stage at which power under Section 319 Cr.P.C. can be exercised? –
INQUIRY and Trial
(ii) Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean
evidence tested by cross-examination or the court can exercise the power under the
said provision even on the basis of the statement made in the examination-in-chief of
the witness concerned? Yes, without cross examination possible if sufficient
evidence on record.
(iii) Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a
comprehensive sense and includes the evidence collected during investigation or the
 word "evidence" is limited to the evidence recorded during trial? ‘evidence’ is thus,
limited to the evidence recorded during trial.
(iv) What is the nature of the satisfaction required to invoke the power under Section
319 Cr.P.C. to arraign an accused? Whether the power under Section 319(1) Cr.P.C.
can be exercised only if the court is satisfied that the accused summoned will in all
likelihood convicted? Degree of satisfaction diff – but presumed same cognizance.
(v) Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or
named in the FIR but not charged or who have been discharged? – YES, can be
summoned
that in order to invoke the power under Section 319 Cr.P.C., it is only a Court of Sessions or
a Court of Magistrate performing the duties as a court under the Cr.P.C. that can utilise the
material before it for the purpose of the said Section.

3. SUKHPAL SINGH KHAIRA V. THE STATE OF PUNJAB

The appellant appealed against the order passed by the High Court of Punjab and Haryana in
Revision Petitions Nos. 4070 and 4113 of 2017, which upheld the order passed by the trial
court summoning the appellant as an additional accused under Section 319 of the Criminal
Procedure Code, 1973.

Issues
Whether the power under Section 319 CrPC can be exercised after the conclusion of the
trial?
What are the guidelines that the competent court must follow while exercising power under
Section 319 CrPC?
Decision
The Court held that the power under Section 319 CrPC can be exercised only before the
conclusion of the trial and the evidence recorded in the main concluded trial cannot be
the basis of the summoning order if such power has not been exercised in the main trial
till its conclusion. The Court also provided guidelines for the competent court to follow
while exercising power under Section 319 CrPC.

Reasoning
The Court held that the power under Section 319 CrPC is conferred on the court to ensure
that justice is done to the society by bringing to book all those guilty of an offence. The
power under Section 319 CrPC can be invoked and exercised before the pronouncement of
the order of sentence where there is a judgment of conviction of the accused. In the case of
acquittal, the power should be exercised before the order of acquittal is pronounced. Hence,
the summoning order has to precede the conclusion of trial by imposition of sentence in the
case of conviction. The Court also provided guidelines for the competent court to follow
while exercising power under Section 319 CrPC.

Conclusion
The Court answered the questions referred and directed the Registry to obtain orders from the
Hon'ble the Chief Justice and place before the appropriate Bench to take a decision on the
factual aspects arising in the case in the background of the legal position and contentions on
merits.

Sukhpal Singh Khaira v state of Punjab

Whether power u/s 319 can be exercised after conclusion of the trial, what are the guidelines
for the Court to follow?
If the summoning order is passed before the judgement, the trial will be paused and the Judge
must decide whether the accused should be tried together or separately.
If separately – the first trial can go on smoothly. Otherwise, the case will be split
up/bifurcated.
If summoning is done after the arguments are heard and is reserved for judgement – u/s 319 –
rehearing or joint trial. If the decision is to hold joint trial – shall be conducted afresh.

Guidelines-
1. If the competent court finds evidence or if application under section 319 CrPC is
filed regarding involvement of any other person in committing the offence based on
evidence recorded at any stage in the trial before passing of the order on
acquittal or sentence it shall pause the trial at that stage.
2. The court shall thereupon first decide the need or otherwise to summon the additional
accused and pass orders thereon.
3. If the decision of the court is to exercise power under 319 of CrPC and summon the
accused, such summoning order shall be passed before proceeding further with the
trial in the main case.
4. If the summoning order of the additional accused is passed, depending on the stage at
which it is passed, the court shall apply its mind to the facts as to whether such
summoned accused is to be tried along with the other accused or separately.
5. If the decision is of joint trial, the fresh trial shall be commenced only after
securing the presence of the summoned accused.
6. If the decision is that summoned accused to be tried separately, on such an order
being made, there will be no impediment for the court to continue and conclude
the trial against the accused who were being proceeded with.
7. If proceeding paused under 1 is in a case where the accused who were tried are to be
acquitted and the decision is that summoned accused can be tried afresh separately,
there will be no impediment to pass the judgment of acquittal in the main case.
 8. If the power is not invoked in the main trial till its conclusion and if there is a
bifurcation or split up the power under section 319 can be invoked and exercised
only if there is evidence to the effect, pointing to the involvement of the
additional accused to be summoned in the split-up trial.
9. If the arguments are heard and the case is reserved for judgement and the occasion
arises for the court to invoke and exercise the power under s319 the appropriate
course for the court to is set down for rehersing.
10. On setting down for re hearing the above said procedure to decide about summoning
holding of joint trial or otherwise shall be decided and proceeded accordingly.
11. Each in such case at that stage, if the decision is to be summon additional accused and
hold a joint trial the trial shall be conducted afresh with and de novo proceeding.
12. If the decision is to hold a separate trial in case of the summoned accused as indicated
earlier,
The main case may be decided by pronouncing the conviction and sentence and the proceed
afresh against summoned accused.
In case of aquital order shall be passed to that effect in the main case then [roceed afresh
against summoned accused.