TWO MODELS OF

CRIMINAL PROCESS
&
DEFINITIONS
OUTLINE

• BASICS OF BNSS
• TWO MODELS
• CLASSIFICATION OF OFFENCES
• DEFINITIONS- SECTION 2
• SECTION 6-11
What is • It is just the code?
• It is the gloss put by the Indian Supreme
Court on the code

BNSS • It is compilation of different Principles from

different judgments.
 Purpose of the
code??
• 1. Punish the person
• 2. Make the person guilty of the crime
• 3. Resolve Dispute
• 4. Maintain the law and order
• 5. Provide Justice to the inidviduals
TWO MODELS OF CRIMINAL
PROCESS
-HERBERT L. PACKER
 • Two competing system of values
operating within the criminal
justice system
• The tension between two is
observable in criminal justice
Intro system
TWO TYPES OF MODELS

1. CRIME 2. DUE
CONTROL PROCESS
MODEL MODEL
CHARACTERSTICS OF CRIME CONTROL
MODALS
1. repression of crime should be most important function; order is an important
condition for society.

2.Criminal justice system should be victim oriented rather than defendant oriented.
Should protect the rights of victim and not criminals. Much more victim centered.

3. Police power should be extended to make it easier for them to investigate, arrest,
search, seize and conviction.

4. The arrest warrant should not create problem to arrest the criminal- “Guilty until
proven innocent”
5. The criminal justice process should operate like an assembly line that moves
the cases swiftly towards their disposition.

6. It also presumes that whenever the police is arresting any individual, guilt
will be presumed because the fact finding/ investigation of police is highly
reliable.

7. Main objective of the criminal justice system should be to discover truth and
establish the factual guilt of the accused.
CRIME CONTROL MODEL
Assumes the guilt of the accused and focuses on
achieving high conviction rates.
Prioritizes the role of law enforcement in crime
prevention and control.
Supports the use of preventive measures, such as
stop-and-frisk tactics, to deter criminal behavior.
Values the finality of judgments and tends to be less
concerned with the rights of the accused.
STRENGTHS OF THE CRIME
CONTROL MODEL
1.Crime Deterrence:
1.Swift processing leads to quick identification, prosecution, and
conviction, acting as a deterrent to potential offenders.
2.Public Safety and Order:
1.Rapid response to criminal activities helps maintain public
safety and order, preventing the escalation of criminal
behaviour.
3.Finality in Justice:
1.Swift resolutions provide closure to victims, witnesses, and the
community, reducing prolonged uncertainty.
Real-World Example:

• Zero-tolerance policies in policing, where immediate action is taken against minor

infractions to prevent larger crimes, embody the Crime Control Model.
• Anti-terrorism laws that prioritize quick arrests and convictions with limited procedural
safeguards also reflect this model.
CRITIQUES
OF THE
CRIME
CONTROL
MODEL
DUE PROCESS MODELS
1. Important function of the criminal justice system should be to provide due process, fundamental
fairness under the law.

2. Should focus of the defendant's right and not victim right because bill of right expressly provides
for the protection of defendant's rights.

3. Police power should be limited to prevent oppression of the individual.

4. Should work/ focus more on protecting rights of the innocent person.

5. The person should be found guilty only if the legal procedures are being followed properly and
the person is punished solely on the basis of fact.
DUE PROCESS MODEL
Presumes the innocence of the accused until proven
guilty.
Prioritizes procedural fairness, with strict adherence to
legal safeguards.
Emphasizes the importance of preventing wrongful
convictions, even if it results in a slower legal process.
Supports different measures to protect individual
liberties.
 1. Presumption of Innocence
Upholds the fundamental principle of
innocence until proven guilty.
2. Procedural Safeguards
Ensures legal protections, including
STRENGTHS the right to legal representation and a
OF THE DUE fair trial.
3. Error Prevention
PROCESS Prioritizes accuracy to prevent wrongful
MODEL convictions, maintaining the integrity
of the legal process.
4. Protection of Individual Rights
Safeguards individual liberties,
excluding unlawfully obtained
evidence and ensuring defendants’
rights
 1. Potential for Leniency:
Emphasis on fairness may lead to
leniency, allowing some guilty
individuals to escape justice
CRITIQUES
2. Lengthy Legal Proceedings:
OF THE
Commitment to thoroughness may
DUE result in lengthy legal processes,
PROCESS contributing to delays.

MODEL 3. Resource Intensiveness:

Rigorous safeguards place a burden on
the criminal justice system, requiring
significant resources.
 BAIL

Difference
BAIL BOND
between

BOND
 Functionaries and their role

1. Police 2. Public
3. Defense 4. Legal Aid:
Officer (SHO, Prosecutor
Counsel section 341
SSP) section 18
Transition from CrPC to BNSS
• 1. Removal of Archaic and Insensitive Terms
• ‘Lunatic person’ or ‘person of unsound mind’ having intellectual disability’ or
‘person with mental illnesses. (S. 219(1)(a), 357 BNSS)
• Chapter XXV 25 of CrPC [Provisions as to Accused Persons Of Unsound Mind]
has now been introduced as Chapter XXVII or 27 of BNSS [Provisions as to
Accused Persons With Mental Illness]
• 2. the word ‘pleader’ have been rightly substituted for the word ‘advocate’.
• 3. ‘thug’ and references to crimes by ‘thugs’ have been removed such as Section
201of BNSS
• 4. removal of all references to Metropolitan Area/magistrates (Bombay, Calcutta
and Madras and the city of Ahmedabad were referred as ‘metropolitan areas’)
• 5. Another regressive provision has been amended whereby under Section 64 of
CrPC, summons could only be served to an adult ‘male’ member of the family.
 Section 2 (Definitional
clause)
Provisions Section 3-4
of BNSS
Section 6-11
DEFINITIONS, HIERARCHY
OF COURTS AND PRE-TRIAL
PROCESS

-ARUSHI BAJPAI
 1. Section 2

2. section 6-11, 21-23

OUTLINE 3. Pre-trial process

4. kahoot
IS THERE ANY DIFFERENCE BETWEEN

1. FIR and COMPLAINT?

• COMPLAINT- 2(h) BNSS
• FIR- 173 BNSS
• 2. INQUIRY AND INVESTIGATION?
• INQUIRY- 2(H)
INVESTIGATION- 2(L)
HIERARCHY OF COURTS
Supreme Court

High Courts

Sessions
Court

Judicial
Magistrate
First class

Judicial
Magistrate
(Second Class)
Executive Magistrate
 Sessions Court
Session Judge+ Additional Session Judge
any punishment but death sentence with

Courts (S.6)
confirmation from HC (s.22)

Chief Judicial Magistrate

any sentence except death sentence,
imprisonment for life and exceeding 7
CONSTITUTION years(s.23)

OF CRIMINAL Judicial Magistrate of first class

COURT AND any sentence not exceeding 3 years or
fine not exceeding 50,000 or both or
HIERARCHY & community services (s.23)

POWER OF Judicial Magistrate of second class

PUNISHMENTS Any sentence not exceeding 1 year or

fine not exceeding 10,000 or both or
community service (s.23)
COURT OF SESSION- SECTION 8
Established by- State Govt

Judge- session judge

Judges appointed by- high court

Vacant seat and Urgent matter- - if not session judge, then additional session
judge, if not then CJM- HC 8(5), SESSION JUDGE 8(8)
Place of court- decided by HC or sometimes at the convenience of the parties
(disabled accused)
 Established by- as many court of JMFC as the
state government after consultation with HC

Special court of JMFC, JMSC- state govt after

COURT OF consultation with HC for any particular case
JUDICIAL
MAGISTRATE If special court established no other court in
local area would have jurisdiction
S.9
Presiding officer
 Read section (S.10)

Special judicial magistrate (S.11)-

Requested by central or state govt HC appoints

Section 10-
11 Eligibility- person who holds or has held any post
under the government
Powers of SJM- JMFC or JMSC

Term- not more than 1 year as the HC may direct

Read 13-14 & 17

18- public prosecutor

 PRE- TRIAL- FIR &
COMPLAINT

TRIAL TRIAL

POST TRIAL
Pre Trial of FIR cases (COGNIZABLE OFFENCES)
• Commission of a crime- COGNISABLE/ NON-COGNISABLE
• FIR section 173
• Investigation 175-187
• Collection of Evidences
• Arrest
• Bail
• Examination of Accused, statement to Police, Statement to Magistrate 180,181, 183
• Police Report 193- charge sheet/closure
• Cognizance 210
• Framing of Charges
• Trial
Pre- Trial Procedure of Complaint Cases
• Complaint to magistrate 223
• Cognizance 210
• Issue of Process 227
• Dismissal 226
• Postponement of Issue of Process 225
QUIZ
FIRS T INFORMATION
REPORT
S E C T I O N 17 3 - 174
ARUSHI BAJPAI
OUTLINE

• REVISION

• FIR- SECTION 173,174

• TYPES OF FIR

• LALITA KUMARI

• QUIZ
 S E C T I O N 17 3

• Every information relating to the commission of a cognizable offence, irrespective of the area
where the offence is committed may be given orally or by electronic communication and if given
to an officer in charge of a police station:
• (i) orally, it shall be reduced to writing by him or under his direction, and be read over to the
informant; and every such information, whether given in writing or reduced to writing as
aforesaid, shall be signed by the person giving it;
• (ii) by electronic communication, it shall be taken on record by him on being signed within three
days by the person giving it, and the substance thereof shall be entered in a book to be kept by
such officer in such form as the State Government may prescribe in this behalf:
• Provided that if the information is given by the woman against whom an offence under section 64, section 66, section 67,
section 68, section 70, section 73, section 74, section 75, section 76, section 77, section 78 or section 122 of the Bharatiya
Nyaya Sanhita, 2023 is alleged to have been committed or attempted, then such information shall be recorded, by a woman
police officer or any woman officer:
• Provided further that—
• (a) in the event that the person against whom an offence under, section 67, section 68, sub-section (2) of section 69, sub-
section (1) of section 70, section 71, section 74, section 75, section 76, section 77 or section 79 of the Bharatiya Nyaya
Sanhita, 2023 is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled,
then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or
at a convenient place of such person's choice, in the presence of an interpreter or a special educator, as the case may be;
• (b) the recording of such information shall be video graphed;
• (c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section
(6) of section 183 as soon as possible.
• (2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant or the
victim.

• (3) Without prejudice to the provisions contained in section 175, on receipt of information relating to the commission of any
cognizable offence, which is made punishable for three years or more but less than seven years, the officer in-charge of the
police station may with the prior permission from an officer not below the rank of Deputy Superintendent of Police, considering
the nature and gravity of the offence:

• (i) proceed to conduct preliminary enquiry to ascertain whether there exists a prima facie case for proceeding in the matter
within a period of fourteen days; or

• (ii) proceed with investigation when there exists a prima facie case.
• (4) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to
in sub-section (1), may send the substance of such information, in writing and by post, to the Superintendent of Police
concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the
case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this
Sanhita, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence, failing
which he may make an application under sub-section (3) of section 175 to the Magistrate.
• What is evidentiary value of FIR?
• Corroborative?
• Contradiction?
• Substantive?

Accused- confessional statement and non confessional statement

Non-accused- contradictory, corroborative

• Is FIR part of investigation?

 Cryptic Information- cannot be termed as
FIR
Telephonic FIR
DIFFERENT Zero FIR
MODES IN
Ante- Timed FIR
WHICH
INFORMATION Cross FIR
CAN BE GIVEN.
Multiple FIR

Electronic FIR
QUIZ
FIR AND ITS CASES
-Arushi Bajpai
 ➢ REVISION
➢ LALITA KUMARI CASE

OUTLINE ➢ YOUTH BAR ASSOCIATION CASE

➢ TT ANTONY CASE
➢ MANU SHARMA CASE
➢ BHAJAN LAL CASE
➢ QUIZ
 SECTION 174- Information as to non-cognizable cases and investigation of such
cases .
(1) When information is given to an officer in charge of a police station of the commission within the
limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of
the information in a book to be kept by such officer in such form as the State Government may prescribe
in this behalf, and—
(i) refer the informant to the Magistrate;
(ii) forward the daily diary report of all such cases fortnightly to the Magistrate.
(2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having
power to try such case or commit the case for trial.
(3) Any police officer receiving such order may exercise the same powers in respect of the
investigation (except the power to arrest without warrant) as an officer in charge of a police station
may exercise in a cognizable case.
(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall
be deemed to be a cognizable case, notwithstanding that the other offences are non -cognizable.
 Supreme Court of India | Landmark
Judgment on Preliminary Enquiry by
Police

LALITA KUMARI V. GOVERNMENT

OF UP
FACTS
This petition has been filed by Lalita Kumari by her father Shri Bhola Kant for the issuance of writ of Habeas
Corpus for protection of the minor daughter who has been kidnapped.
The grievance in the said petition is that on 11.05.2008 a written report was submitted by the petitioner
before the officer in charge of the police station concerned who did not take any action on the same.
Thereafter when the Superintendent of Police was moved, an FIR was registered.
Even thereafter, steps were not taken either for apprehending the accused or for recovery of the minor girl
child.
A two-judge bench in 2008 after noticing the disparity in registration of FIR by police officers on case -to-case
basis across the country, issued notice to the Union of India, the chief secretaries of all the states and union
territories and Director Generals of Police commissioners of police to the effect that if the steps are not taken for
registration of FIR immediately and the copies are not handed over to the complainants they may move to the
magistrate.
Contempt proceedings must be initiated against such police officer if no sufficient cause is shown.
Reliance was placed on Bhajanlal case for registering FIR on receipt of information of a cognizable
offence.
Case in 2008 was referred to a larger Bench in 2012- after adverting to all the conflicting
decisions extensively. The case was refereed to the constitution bench for a better interpretation of
section 154 crpc.
ISSUE
Whether a police officer is bound to register a FIR upon receiving any
information relating to commission of a cognizable offence under section 154
of the code.

or The police officer has the power to conduct a preliminary inquiry in order
to test the veracity of such information before registering it.
Arguments for no preliminary inquiry before FIR

Argued by senior counsel S.B. Upadhayay- Section 154 (1) is mandatory as the
use of word “shall” is indicative of the statutory intent of the legislature. There is
no discretion left to the police.
It merely mentions information without prefixing the words reasonable or
credible.
Literal Rule of Interpretation
It was said that the first and foremost principle of interpretation of a statute in every system of
interpretation is the literal rule of interpretation.
“Where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to the
principles of interpretation other than the literal rule
The language of Section 154(1), therefore, admits of no other construction but the literal
construction.”
Mr. K.V Vishwanathan learned additional solicitor Gerenal submitted that in all cases where information is
received under section 154 is mandatory for the police to enter it if it is related to the cognizable
offence.
In case of cryptic information also, on gathering that information is related to the cognizable offence, the
police officer must send the report to the police station so that it may be recorded as an FIR
It was concluded that when the statutory provisions are clear and unambiguous, it would not be legally
permissible to allow the police to make a preliminary inquiry into the allegation before registering an FIR
under section 154
At the stage of registration of a crime on the basis of the information disclosing the cognizable
offence in compliance with the mandate of section 154(1) of the code, the concerned police
officer cannot embark upon an inquiry as to weather the information is reliable and genuine or
otherwise refuse to register a case on the ground that information is not reliable or credible.
A comparison was drawn between section 154(1) and section 41(1)(a) or (g) where the
expression ‘reasonable complaint’ and ‘credible information’ are used. Evidently, the use of such
terms in section 41 suggest that police officer should not refuse to record an information relating
to the commission of a cognizable offence and to register a case thereon on the ground that he
is not satisfied with reasonableness or credibility of the information.
Arguments from the respondent- Police must be free to do preliminary
inquiry
Mr. Siddharth Luthra, then learned Additional Solicitor General contended that preliminary inquiry should be held permissible
before registering of an FIR. Power to carry out an inquiry or preliminary inquiry by the police, which precedes the registra tion of
FIR will eliminate the misuse of process, as the registration of FIR serves as an impediment against a person for various imp ortant
activities like applying for a job or a passport etc.
He requested to make guidelines for certain category of cases in which preliminary inquiry should be made.
Same contention was from Mr. Shekhar Naphde, senior counsel. In certain cases, police officer must have option of conducting a
preliminary inquiry.
Mandatory registration of FIR will lead to arbitrary arrest which will be directly be in
contravention of Article 21 of the constitution.
Further it was explained that registering of FIR IS NOT AT ALL MANDATORY.
Significance and compelling reasons for registering FIR at the
earliest

1- the criminal process is set into motion and is well documented from
very start.
2- the earliest information received in relation to the commission of a
cognizable offence is recorded so that there cannot be any
embellishment.
Dr. Justice V.S. Malimath committee
recommended:-

1- all complaints should be registered promptly, failing which appropriate

action should be taken.
2- this would minimize the offence by the police by the way of not
invoking appropriate sections of law.
 Judgment

Registration of FIR is mandatory under section 154 of the code, if the

information discloses cognizable offence.
If the information received does not disclose a cognizable offence but
indicates the necessity for an inquiry, a preliminary inquiry may be
conducted ONLY TO ASCERTAIN WHETHER COGNIZABLE OFFENCE IS
DISCLOSED OR NOT
 GUIDELINES
1. Registration of FIR is mandatory by the police officer when they receive commission of a cognizable offence.
2. No preliminary inquiry is required.
3. Reasons for not registering FIR: If the police officer decides not to register an FIR, he/she must record the reasons in writ ing
and provide a copy of the same to the complainant.
4. Receipt of information by a postal or telephonic message: where the information relating to the cognizable offence is receive d
by post or telephone, the police officer must reduce it to writing and proceed in accordance
5. Recording of information in register: The police officer must record the information received by him/her in a register, which is
commonly known as the Station Diary.
6. Copies of FIR: The police officer must give a copy of the FIR to the complainant free of cost
 Exceptions to this rule:-
1. Matrimonial disputes/ family disputes
2. Commercial Offence
3. Medical Negligence case
4. Corruption Cases
5. Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting
the matter without satisfactorily explaining the reasons for delay.
Preliminary inquiry should be made time bound and should not exceed 14 days.
Youth Bar Association of India v.
Union of India (2016) 9 SCC 473

Supreme Court of India | Landmark

Judgment on FIR Accessibility to accused
Facts of the Case
PIL was filed seeking directions for public access to FIRs.
Many police stations refused to provide FIR copies.
Lack of access to FIRs caused delays in legal proceedings.
Petitioner sought mandatory online publication of FIRs.
Issues Before the Court
1. Should FIRs be made publicly available?
2. Should police be required to upload FIRs online?
3. What exceptions should apply to online FIR publication?
 Supreme Court’s Ruling
• FIRs must be uploaded online within 24 hours. In case of connectivity problems due to geographical location or
there is some other unavoidable difficulty, the time can be extended up to 48 hours and maximum up to 72
hours.
• Accused, victim, or aggrieved persons must get free FIR copies.
• FIR not uploaded is not a ground of Anticipatory Bail
• Exceptions: Sensitive cases (sexual offenses, terrorism, etc.) should not be uploaded.
• If police fail to provide FIRs, SP or Magistrate can intervene.
• The decision to not to upload the copy of FIR on the website shall not be taken by any officer below the rank of
Deputy Superintendent of Police or any person holding equivalent post.
Committee:
In case FIR copy is not provided in sensitive information case, a person can submit a representation
at the Superintendent of police or any person holding equivalent post in the state.
The S.P. shall constitute a committee of three officers which shall deal with the same grievance, this
committee will take 3 days to respond.
If it is not provided due to the sensitive nature, it can be taken from the magistrate.
FEW QUESTIONS RELATED TO FIR
1-What happens if the police refuse to register FIR?
2-Can a WhatsApp message; email be treated as an FIR? Why or why not?
3-Should FIR registration be allowed online for all cases? What challenges could arise?
4- Is there a time limit for filing an FIR? What are the legal consequences of delayed FIR
registration? (sec. 514)
5- Should second FIR be permissible?
T.T. Antony v. State of Kerala (2001)

A Landmark Case on Multiple FIRs

Facts of the Case
- 1994: Kerala Minister M.V. Raghavan visited Kuthuparamba, Kannur
- DYFI protests led to police firing, killing 6 people
- First FIRs (353/94 & 354/94) filed against protesters
- 1997: Commission of Inquiry found police firing unjustified
- New FIR (268/97) filed against police officers 3 years later
Arguments by Petitioner (T.T. Antony)
- No Second FIR Rule: First FIR already initiated investigation
- Abuse of Law: Multiple FIRs could lead to harassment
- Violates CrPC: Section 154 & 173(8) allow only one investigation
Arguments by Respondent (State of Kerala)
- Fresh Evidence Justifies New FIR
- State has right to reinvestigate if new facts arise
- Police must have full discretion to investigate and file new cases
Issues Before the Supreme Court
1. Can a second FIR be filed for the same incident?
Supreme Court Judgment
- No second FIR for the same offense/incident
- New facts must be added to the ongoing investigation
- Multiple FIRs lead to abuse of process
- Exception: If a second FIR is about a different offense, it may be allowed
Manu Sharma v. State (NCT of Delhi)
(2010)

Jessica Lal Murder Case – Supreme Court

Judgment
 Facts of the Case
• On night intervening 29-30.04.1999, a 'Thursday Party' was going on at Qutub Colonnade at "Tamarind Cafi”
• The liquor was being served by the bartenders, namely, Jessica Lal (since deceased) and one Shyan Munshi (PW -2). At about
2.00 a.m., SidharthaVashisht @ Manu Sharma (appellant in Crl. A. No. 179 of 2007) along with hisfriends came there and asked
for two drinks.
• The waiter did not serve him liquor as the party was over. Jessica Lal and Malini Ramani (PW-6), who werealso present there,
tried to make him understand that the party was over and there was no liquor available with them.
• On refusal to serve liquor, the appellant took out a pistol and fired one shot at the roof and another at Jessica Lal which h it
near her left eye as a result of which she fell down.
• Beena Ramani (PW-20), who was present there, stopped the appellant and questioned him as to why he had shot Jessica Lal
and demanded the weapon from him but he did not hand over the pistol and fled away.
• Jessica Lal was rushed to Ashlok Hospital from where she was shifted to Apollo Hospital. On 30.04.1999, in the early morning
hours, Jessica Lal was declared brought dead at Apollo Hospital
Among other important issue, one of them is:

What constitute an FIR?

• whether the three telephonic messages received by the Police at around 2:25 a.m. on
30.04.1999 or the statement made by Shyan Munshi recorded at Ashlok Hospital constitute the
FIR.
“it has been further argued by the learned senior counsel for the appellant that in the present case
the three cryptic telephonic messages received by the Police at around 2.20 a.m. on 30.04.1999
should be treated as FIR upon which the investigation started and, therefore, the statement of PW -
2 recorded by the Police later on around 3.40 a.m. could not be treated as FIR but a statement
under Section 162 of Cr.P.C.”
Read para 32-42
In the present case.
“Cryptic telephonic messages could not be treated as FIR as their object only is to get the police to the
scene of offence and not to register the FIR. The said intention can also be clearly culled out from a bare
reading of Section 154 of the Criminal Procedure Code which states that the information, if given orally,
should be reduced in writing, read over to the informant, signed by the informant and a copy of the same
be given free of cost to the informant. In the case on hand, the object of persons sending the telephonic
messages including PW-70 Rohit Bal was only to bring the police to the scene of offence and not to
register the FIR”.
Arguments by Respondent (State of Delhi)
- Multiple witnesses confirmed Manu Sharma was present
- Eyewitnesses saw him fire the gun
- Ballistic reports matched the bullets to the gun
- Phone records & CCTV confirmed his presence
Supreme Court Judgment
- Conviction upheld under IPC Sections 302, 201, 120B & Arms Act
- Life imprisonment + fine of ₹50,000
- High Court’s reversal of acquittal was justified
- Media trials should be avoided, but fair trial was ensured
Quashing of fir
State of Haryana v. Bhajanlal 1990

FACTS OF THE CASE- Bhajan Lal at the time of the case was the Union Minister of Environment and
Forests and Devi Lal was elected as the Chief Minister of the State of Haryana. In the same
election, Dharam Pal lost the election against Smt. Jasma Devi, wife of Bhajan Lal. Owing to
various political rivalries and institutions of various criminal cases there was a lot of bad blood
between Bhajan Lal and Devi Lal. Consequently, Dharampal placed a complaint before the CM,
Devi Lal against Bhajan Lal where he alleged that Bhajan Lal possesses disproportionate property
or pecuniary resources compared to his indefinite sources of income.
It was also alleged that the accumulation of that much property was far beyond his legal means. Special
Officer on Duty in CM’s secretariat passed the message to the office Director General of Police stating that
the CM has sought appropriate action in the said case. The complaint was further passed on to the
Superintendent of Police (SP) asking for the necessary measure to be taken and report back. The SP asked
the SHO (Station House Officer) to register the case and investigate. Subsequently, a case was filed under
sections 161 and 165 of the IPC and Section 5(2) of the Prevention of Corruption Act in November 1987. The
copy of the FIR was then sent to the magistrate and the investigation was started.
Meanwhile, Bhajanlal filed a writ petition before the High Court for direction to quash the FIR and
restraining appellants to stop the investigation.
HIGH COURT QUASHED THE entire proceedings holding that allegation did not constitute cognizable
offence for commencing lawful investigation.

The appellant finally moved to the SC challenging the quashing of FIR by the HC saying that it is a
cognizable offence and must be registered under section 154(1)
ISSUES-

• Whether just the allegations are enough to constitute a cognizable offense

and give the power of investigation to the police?
• Whether the action of investigating on the part of SHO on just the order of
one word “investigate” from SP is enough as per Section 5 of Prevention of
Corruption Act, 1947?
• Whether the High Court was justified in quashing the FIR and criminal
proceedings and acted under the ambit of 226 of the Constitution and
sections 482, 154 and 157, and to what extent the orders suffer from legal
infirmity?
 Respondent Argued

The case is the result of “deep rooted political animosity

and rivalry entertained by the then Chief Minister. The
complaint contains the false allegations against the
Bhajanlal and the FIR is liable to be quashed.
 Judgment
The judgement of the High court quashing the FIR is set aside as not being legally and
factually sustainable in the law.

The entire investigation if any, so far done is quashed on the ground that SHO is not legally
valid authority to take the investigation within the meaning of section 5A of the prevention
of corruption act.

The entire matter is at pre-mature stage and the investigation has not taken place except
some preliminary effort taken on the date of registration of case
The evidence has to be gathered after a thorough investigation and placed before the court of the basis
of which the court can come to a conclusion.
This court cannot anticipate the result of investigation and render a finding on the question of malafides
on the materials at present available. Therefore, it cannot be said that the complaint should be
overthrown.
Even if we assume the complaint is on the basis of personal animosity that by itself will not be a
ground to discard complaint containing such serious allegations.
In the instant case the SP seems to have exhibited over enthusiasm , presumably to please
someone and had directed the SHO to register the case.
A police officer officer not below the rank of inspector of police authorised by the state
government can take up the investigation of offence mentioned under section 5 of the Prevention
of Corruption Act, 1947
“the investigation by the designated police officer is the rule and the investigation by an officer of
lower rank is an exception.
“In the instant case, there is absolutely no reason
given by the SP in directing the SHO to investigate
and as such the order of the SP is in direct violation
of section 5 of PCA, 1947”
 Guidelines for quashing FIR
The Supreme Court has issued seven guidelines which should be followed by the High Court in the exercise of its inherent powe r
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 a ccepted
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.
3. Where the 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 C ode.
5. Where the allegations made in the FIR or complaint are so absurd.
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 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 against the accused due to personal grudge.
INVESTIGATION
ARUSHI BAJPAI
1. ORDINARY/ NORMAL/ FRESH INVESTIGATION- When F.I.R. is lodged by
someone or by the police in acknowledgment of any cognizable
offence. Under section 173 read with section 175(1).
2. Ordered by Magistrate- Investigation ordered by the Judicial
Magistrate upon receiving complaint under section 223 where instead
of taking cognizance or dismissing complaint judicial magistrate
decides to ask police to investigate under section 175(3)
3. Further investigation- This is ordered by Judicial Magistrate under
section 173 (8) upon receipt of the police report under section 193(9) –
could only be ordered by the magistrate.
4. Investigation ordered by the Magistrate under section 225(1)- This is for
the limited purpose of deciding, whether or not there is sufficient
TYPES OF
ground for proceeding after receipt of complaint under section 223 in
a matter where he is authorized to take cognizance under section
210, or any case that has been made over to him under section 212
INVESTIGATION
crpc.
5. 5. Re-investigation or fresh investigation- this is ordered only by the high
court or the supreme court under discretionary powers. It is equivalent
to the first F.I.R.
Police officer’s power to investigate
cognizable case- 175
◦ (1)Any officer in charge of a police station may, without the order of a Magistrate,
investigate any cognizable case which a Court having jurisdiction over the local
area within the limits of such station would have power to inquire into or try
◦ Provided that considering the nature and gravity of the offence, the Superintendent
of Police may require the Deputy Superintendent of Police to investigate the case.

◦ (2)No proceeding of a police officer in any such case shall at any stage be called in
question on the ground that the case was one which such officer was not
empowered under this section to investigate.
◦ Any Magistrate empowered under section 210 may, after considering the application
supported by an affidavit made under sub-section (4) of section 173, and after making
such inquiry as he thinks necessary and submission made in this regard by the police
officer, order such an investigation as above-mentioned.
◦ (4)Any Magistrate empowered under section 210, may, upon receiving a complaint
against a public servant arising in course of the discharge of his official duties, order
investigation, subject to-(a) receiving a report containing facts and circumstances of
the incident from the officer superior to him; and(b) after consideration of the assertions
made by the public servant as to the situation that led to the incident so alleged.
 Sakiri Vasu vs State Of U.P. And Others
on 7 December 2007

FACTS

◦ The son of the appellant was a Major in the Indian Army. His dead body was found on 23.8.2003 at Mathura Railway
Station. The G.R.P, Mathura investigated the matter and gave a detailed report on 29.8.2003 stating that the death was due to
an accident or suicide.
◦ The Army officials at Mathura also held two Courts of Inquiry and both times submitted the report that the deceased Major
S. Ravishankar had committed suicide at the railway track at Mathura junction.
◦ The Court of Inquiry relied on the statement of the Sahayak (domestic servant) Pradeep Kumar who made a statement that
deceased Major Ravishankar never looked cheerful; he used to sit on a chair in the verandah gazing at the roof with blank
eyes and deeply involved in some thoughts and used to remain oblivious of the surroundings. The Court of Inquiry also
relied on the deposition of the main eye-witness, gangman Roop Singh, who stated that Major Ravishankar was hit by a
goods train that came from Delhi.
◦ The appellant who is the father of Major Ravishankar alleged that in fact it was a case of murder and
not suicide. He alleged that in the Mathura unit of the Army there was rampant corruption about
which Major Ravishankar came to know and he made oral complaints about it to his superiors and
also to his father. According to the appellant, it was for this reason that his son was murdered.
◦ The first Court of Inquiry was held by the Army which gave its report in September 2003 stating that
it was a case of suicide. The appellant was not satisfied with the findings of this Court of Inquiry and
hence on 22.4.2004 he made a representation to the then Chief of the Army Staff, General N.C. Vij,
as a result of which another Court of Inquiry was held. However, the second Court of Inquiry came to
the same conclusion as that of the first inquiry namely, that it was a case of suicide.
◦ Aggrieved, a writ petition was filed in the High Court which was dismissed by the impugned
judgment. Hence this appeal.

◦ The petitioner (appellant herein) prayed in the writ petition that the matter be ordered to be
investigated by the Central Bureau of Investigation (in short CBI). Since his prayer was
rejected by the High Court, hence this appeal by way of special leave.
 Issue
◦ Whether writ petitions to HC/SC or under Section 482 crpc petitions be entertained when
there are so many alternative remedies?
◦ Whether a person can demand that an inquiry be conducted by a special investigating agency
of their choice?
◦ It has been held by this Court in CBI & another vs. Rajesh Gandhi and another 1997 Cr.L.J 63 (vide para 8) that no
one can insist that an offence be investigated by a particular agency.
◦ In this connection we would like to state that if a person has a grievance that the police station is not registering his
FIR under Section 154 Cr.P.C., then he can approach the Superintendent of Police under Section 154(3) Cr.P.C. by
an application in writing.
◦ it is open to the aggrieved person to file an application under Section 156 (3) Cr.P.C. before the learned Magistrate
concerned. If such an application under Section 156 (3) is filed before the Magistrate, the Magistrate can direct the
FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the
aggrieved person, no proper investigation was made.
◦ In our opinion Section 156(3) Cr.P.C. 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 F.I.R. 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) Cr.P.C.,
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.
◦ In the present case, there was an investigation by the G.R.P., Mathura and also two Courts of
Inquiry held by the Army authorities, and they found that it was a case of suicide. Hence, in our
opinion, the High Court was justified in rejecting the prayer for a CBI inquiry.
◦ this appeal stands dismissed.
Procedure for investigation- Section 176

◦ If, from information received or otherwise, an officer in charge of a police station has
reason to suspect the commission of an offence which he is empowered under section
175 to investigate, he shall forthwith send a report of the same to a Magistrate
empowered to take cognizance of such offence upon a police report and shall proceed in
person, or shall depute one of his subordinate officers not being below such rank as the
State Government may, by general or special order, prescribe in this behalf, to proceed,
to the spot, to investigate the facts and circumstances of the case, and, if necessary, to
take measures for the discovery and arrest of the offender
◦ Provided that-(a) when information as to the commission of any such offence is given
against any person by name and the case is not of a serious nature, the officer in charge
of a police station need not proceed in person or depute a subordinate officer to make an
investigation on the spot;
◦ (b) if it appears to the officer in charge of a police station that there is no sufficient
ground for entering on an investigation, he shall not investigate the case.
◦ Provided further that in relation to an offence of rape, the recording of statement of the victim shall be
conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman
police officer in the presence of her parents or guardian or near relatives or social worker of the locality.
◦ (2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub- section (1), the officer in
charge of the police station shall state in his report his reasons for not fully complying with the
requirements of that sub- section, and, in the case mentioned in clause (b) of the said proviso, the officer
shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State
Government, the fact that he will not investigate the case or cause it to be investigated.
◦ On receipt of every information relating to the commission of an offence which is made
punishable for seven years or more, the officer in charge of a police station shall, from such
date, as may be notified within a period of five years by the State Government in this regard,
cause the forensic expert to visit the crime scene to collect forensic evidence in the offence and
also cause videography of the process on mobile phone or any other electronic device

◦ Provided that where forensic facility is not available in respect of any such offence, the State
Government shall, until the facility in respect of that matter is developed or made in the State,
notify the utilisation of such facility of any other State.
Section 178- Power to hold investigation or
preliminary inquiry.

◦ The Magistrate, on receiving such report,

under section 176 may direct an
investigation, or, if he thinks fit, at once
proceed, or depute any Magistrate
subordinate to him to proceed, to hold a
preliminary inquiry into or otherwise to
dispose of, the case in the manner
provided in this Code.
Reports how submitted- section 177

◦ 1) Every report sent to a Magistrate under section 176 shall,

if the State Government so directs, be submitted through
such superior officer of police as the State Government, by
general or special order, appoints in that behalf.
◦ (2) Such superior officer may give such instructions to the
officer in charge of the police station as he thinks fit, and
shall, after recording such instructions on such report,
transmit the same without delay to the Magistrate.
Section 179: Police Officer's Power to Require Attendance
of Witnesses

◦ Any police officer making an investigation under this Chapter may, by order in writing, require the
attendance before himself of any person being within the limits of his own or any adjoining station who,
from the information given or otherwise, appears to be acquainted with the facts and circumstances of
the case; and such person shall attend as so required:
• Provided that no male person under the age of fifteen years or above the age of sixty years or a woman
or a mentally or physically disabled person or a person with acute illness shall be required to attend at
any place other than the place in which such person resides:
• Provided further that if such person is willing to attend the police station or at any other place within the
limits of such police station, such person may be permitted so to do.
◦ (2) The State Government may, by rules made in this behalf, provide for the payment by the police officer
of the reasonable expenses of every person, attending under sub-section (1) at any place other than his
residence.
◦
Brief:
• Power of Police Officer: A police officer conducting an investigation can require any person
within his station or an adjoining station to appear before him if they are acquainted with
the facts of the case.
• Obligation to Attend: The person must comply and attend as required.
• Exemptions from Attendance at Other Places:Males under 15 years or above 60 years
• Women
• Mentally or physically disabled persons
• Persons with acute illness
• These individuals can only be required to appear at their residence, not elsewhere.
◦ Voluntary Attendance: If such exempted persons are willing to attend the police station or
another location within its limits, they may do so.Expenses: The State Government may make
rules requiring the police officer to pay reasonable expenses for individuals attending at a
place other than their residence.
 Section 180: Examination of witnesses by police.
◦ (1)Any police officer making an investigation under this Chapter, or any police
officer not below such rank as the State Government may, by general or special
order, prescribe in this behalf, acting on the requisition of such officer, may
examine orally any person supposed to be acquainted with the facts and
circumstances of the case.
◦ (2)Such person shall be bound to answer truly all questions relating to such case
put to him by such officer, other than questions the answers to which would have
a tendency to expose him to a criminal charge or to a penalty or forfeiture.
◦ (3) The police officer may reduce into writing any statement made to him in the
course of an examination under this section; and if he does so, he shall make a
separate and true record of the statement of each such person whose statement he
records
 Nandini Satpathy vs Dani (P.L.) And Anr on 7 April, 1978
◦ The appellant a former chief minister of Orrisa and one time Minister at the
national level was directed to appear at the vigilance police station,
Cuttak in September 1977 for being examined in connection with a case
registered against her by the Deputy Suprintendent of Police, vigilance
Cuttak under section 5 of prevention of corruption act and 161 and 165IPC
◦ During the course of investigation, she was given a list of questions in
writing, and she was supposed to answer that.
◦ She refused to answer with the result a complaint was filled by the deputy
superintendent of police against her before the divisional judicial
magistrate.
◦ The magistrate took cognizance of the offence and issues summons of
appearance against the appellant- accused.
◦ Aggrieved by the action of the magistrate. The appellant
moved to the HC challenging the validity of the magistrate and
urging that complaint did not disclose the cognizable offence.
◦ Appellant contended that the the umbrella of article 20(3) of
the constitution and immunity under section 161(2) of the crpc
were wide enough to shield her in her refusal.
◦ High court rebuffed the appeal and hence, the case goes to
the SC
 QUESTIONS BEFORE THE COURT
◦ Does the bar against self-incrimination operate not merely with reference to a particular
accusation in regard to which the police investigator interrogates, or does it extend also to other
pending or potential accusations outside the specific investigation which has led to the
questioning ?
◦ Does the constitutional shield of silence swing into action only in Court or can it barricade the
'accused' against incriminating interrogation at the stages of police investigation ?
◦ What is the ambit of the cryptic expression 'compelled to be a witness against himself" occurring in
Article 20(3) of the Constitution ?
◦ What are the parameters of Section 161(2) of the Criminal Procedure Code?
◦ Does 'any person' in Section 161 Cr. Procedure Code include an accused person or only a witness
?
◦ When does an answer self-incriminate or tend to expose one to a charge ?
◦ Application of section 179IPC in such cases to what extent?
 Court held:

◦ Section 161(2) covers the right to silence

◦ “ merely because the person fancied that by such answer, he would incriminate
himself he could not claim the privilege of silence. It must appear to the court that
implication of the question in the setting in which it is asked, make it evident that a
responsive answer might be dangerous because injurious disclosure could result.
◦ The area covered by Art. 20(3) of the Constitution and section 161(2) of the
Criminal Procedure Code is substantially the same. So much so, terminological
expansion apart, sec. 161(2) is a parliamentary gloss on the constitutional clause.
◦ Compelled testimony' must be read as evidence procured not merely by physical
threats or violence but by psychic torture, atmospheric pressure, environmental
coercion tiring interrogative prolixity, overbearing and intimidatory methods and
the like not legal penalty for violation.
◦ A wider construction viz. that s. 161(2) of the Code might cover not merely
accusations already registered in police stations but those which are likely to
be basis for exposing a person to a criminal charge, if applicable to Art. 20(3),
approximates the constitutional clause to the explicit statement of 161(2)
◦ Right available in investigation and trial
◦ . S. 161(2) meaningfully uses the expression 'expose himself to a criminal
charge'. Obviously, these words mean, not only cases Where the person is
already exposed to a criminal charge but also instances which Will
imminently expose him to criminal charges.
◦ Appeal allowed
Section 181(1): Statements to police and use thereof.

◦ No statement made by any person to a police officer in the course of an investigation under this
Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such
statement or any record thereof, whether in a police diary or otherwise, or any part of such
statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or
trial in respect of any offence under investigation at the time when such statement was made:
◦ Provided that when any witness is called for the prosecution in such inquiry or trial whose
statement has been reduced into writing as aforesaid, any part of his statement, if duly proved,
may be used by the accused, and with the permission of the Court, by the prosecution, to
contradict such witness in the manner provided by section 148 of the Bharatiya Sakshya
Adhiniyam, 2023; and when any part of such statement is so used, any part thereof may also be
used in the re-examination of such witness, but for the purpose only of explaining any matter
referred to in his cross-examination.
 Section 182: No inducement to be offered.
◦ (1)No police officer or other person in authority shall offer or make, or cause to be offered
or made, any such inducement, threat or promise as is mentioned in section 22 of the
Bharatiya Sakshya Adhiniyam, 2023.
◦ (2)But no police officer or other person shall prevent, by any caution or otherwise, any
person from making in the course of any investigation under this Chapter any statement
which he may be disposed to make of his own free will
◦ Provided that nothing in this sub-section shall affect the provisions of sub-section (4) of
section 183.
Section 183: Recording of confessions and
statements.
Mahabir Singh vs State Of Haryana on 26 July, 2001

◦ FACTS OF THE CASE

• The accused, believed that the deceased, Anand, had raped and murdered his sister. He
accosted Anand during an evening walk and stabbed him. When Anand attempted to run away,
he was surrounded by three others, all of whom stabbed him. All four accused were arraigned
and tried under S. 302 r/w S. 34. Sessions Court found only accused no. 1 guilty, while the
other three were found not guilty, HC found them all guilty. Therefore, appeal to the SC.

• accused no. 1, after the murder had barged into a courtroom on his own during the morning
hours, exhibiting a knife and wanting the Magistrate to record his confession. The Magistrate
obliged him to do so and after administering oath to him the Magistrate recorded the confession
and got it signed by the confessor. A Sessions Judge and Division Bench of the High Court of
Punjab and Haryana accepted the said confession as legally admissible, found it to be genuine
and voluntary and acted upon it, among other things, and convicted the confessor of a murder-
charge and sentenced him to life imprisonment.
◦ A Sessions Judge and Division Bench of the High Court of Punjab and Haryana accepted the said
confession as legally admissible, found it to be genuine and voluntary and acted upon it, among
other things, and convicted the confessor of a murder-charge and sentenced him to life
imprisonment.
◦ There were three other accused arraigned along with Ranbir Singh for the offence of murder of the
same deceased with the aid of Section 34 of IPC. The Sessions Court found them not guilty and
acquitted.
◦ But the Division Bench of the High Court, on appeal filed by the State, reversed the acquittal and
convicted them also under Section 302 read with Section 34IPC and sentenced them to
imprisonment for life. They have filed this appeal as of right under Section 379 of the Code of
Criminal Procedure (for short the Code) and Section 2 of the Supreme Court (Enlargement of
Criminal Appellate Jurisdiction) Act, 1970. All the appellants were heard together.
LEGAL ISSUE

• Whether the confession made to the magistrate was valid and

should have been admitted in evidence?
• Whether the use of case diary was done in right manner or
not.
◦ The State filed appeal before the High Court challenging the acquittal of the
three appellants while Ranbir Singh filed a separate appeal challenging the
conviction and sentence passed on him
◦ TRIAL COURT- Convicted Ranbir Singh and Acquitted all three.
◦ HIGH COURT- Learned Judges of the High Court while confirming the
conviction and sentence passed on the appellant Ranbir Singh made a
scathing attack on the Sessions Judge for the reasoning advanced in support
of the order of acquittal of the other three accused.
◦ One of the reasoning which the Division Bench pointed out was that PW-1
was confronted only with the statement recorded under Section 161 of the
Code on 14.10.1991, whereas that witness was interrogated by the
Investigating Officer on 12.10.1991; The earlier interrogation record should
have been traced out by the trial judge from the Case Diary of the police,
according to the learned Judges of the Division Bench.
◦ The High Court expressed the view that the Sessions Judge had a duty to
peruse the Case Diary prepared as per Section 172 of the Code for satisfying
himself whether the witness had stated any particular fact during the
interrogation.
◦ The High Court took pains to scrutinise the Case Diary and learned Judges copiously used the entries
therein for driving the point home. V.K. Bali, J., who authored the judgment of the Division Bench has
made the following remarks:
◦ The statement of Sandeep dated October 12, 1991 has been separately annexed with the entry and the
same is in tune with the statement made by him in the court. The statements of other persons
under Section 161 Cr.P.C. were also recorded on the same.
◦ From the oral statement of Sandeep and that of the investigation officer, supported by the police case
diaries, we are certain that statement of Sandeep was actually recorded in the morning of October 12,
1991, and the findings recorded by the learned trial Judge to the contrary are absolutely erroneous.
◦ Admissibility and Use in Court of police diary
• Under Section 172 of the CrPC, the police diary is a record maintained by the investigating
officer during an investigation. It cannot be used as evidence by the prosecution but can
be used by the defense and the court for contradicting or impeaching the credibility of a
witness.
• The Supreme Court emphasized that while police diaries are confidential and meant for
investigation purposes, they can be inspected by the court to aid in fair adjudication.
◦ Contradiction of Witness Testimony
• The defense may refer to entries in the police diary to challenge the prosecution's version
of events, particularly inconsistencies between witness statements recorded in the diary
and their testimony in court.
• In this case, the accused may have attempted to use the police diary to highlight
inconsistencies in the investigation or statements recorded by the police.
• However, the trial court has the power to look into it to verify facts but not to use it as
substantive evidence.
 Supreme court

◦ It would have been desirable that the High Court did not make such strong remarks
castigating the police and the subordinate judiciary, when the situation did not warrant
such castigation. Judicial restraint should have dissuaded the High Court from making
such unnecessary castigation. That apart the legal proposition propounded by the
High Court regarding the use of Section 172 of the Code is erroneous. The whole
exercise made by the High Court on that aspect was in the wake of what PW-1 said
that he was questioned by the Investigating Officer on 12.10.1991. That might be so,
but the defence counsel used the statement as recorded on 14.10.1991 under Section
161 of the Code for the purpose of contradicting PW-1.
◦ “As the confession recorded by PW-2 (the magistrate) cannot be brought
under Section 164 of the Code it is an idle exercise to consider whether it
was voluntary or true. We may again point out, PW-2 has not stated that
before taking down the confession he explained to Ranbir Singh that he was
not bound to make the confession, and that if he did so, such confession
might be used as evidence against him. This is sine qua non for recording a
confession. Further a Magistrate is forbidden from recording any such
confession until he gets satisfaction that the person is going to make a
voluntary confession. There is nothing in the evidence of PW-2 that he had
adopted such precaution. For all those reasons we keep that document out
of the ken of consideration in this case.” (Para 22)
Jogender Nahak and Others vs. State of Orrisa- (Misuse of Section
164)

◦ Strange motion has been made before the high court of orrisa by four
person who are STRANGERS to a criminal case for direction to magistrate to
record their statements under section 164 of the code of criminal
procedure.
◦ High court which initially issues such a direction later on resiled therefrom
and revoked the order on the second thought
Facts
◦ One Balram Mohantay and his son sustained injuries and later the said
Mohantay succumbed to injuries.
◦ F.I.R was registered with Purusottam police station on the information
supplied by Bhagaban Mohantay brother of deceased.
◦ One Jagdish Murty and three others were arrayed as accused in the FIR
and investigation was commenced thereon.
◦ On completion of investigation final report was laid down by police before
magistrate against said accused person.
◦ According to present four appellant though they were interrogated by the
investigating officer under section 161 of the code their statement were
not kept in the case diary.
◦ The four appellants filed a writ petition before the HC for directing the investigating
officer to record their statement under section 161 of the code and for a further
direction to magistrate to record their statement under section 164.
◦ The High court permitted appellants to file a petition before the magistrate for the
purpose of recording their statement and magistrate was directed to pass appropriate
orders on such petition.
◦ Pursuant to the said orders, appellants went to the magistrate and ask for the same.
◦ Magistrate again declined to record.
◦ Bhagaban Mohantay filed an application before HC to recall the order. The division
bench which passed the said order heard both side and dismissed writ petition filed by
appellant and ordered them to pay 2500 each for filing frivolous petition
◦ Division bench held that appellants have miserably failed to prove
any malafide action of the investigating officer so as not to
investigate the case properly.
◦ Therefore, the anxiety of the petitioners to examine themselves is not
with the view to help the investigating agency or the prosecution
but to favor a person who has been charge sheeted.
◦ Appellants argued that the magistrate has power to record the
statement under section 164 of the code at the instance of witness,
this is not the stage to consider whether witness has approached
magistrate with bona fide or not as that aspect should have been
left to the trial court to decide while considering the reliability of his
testimony.
 Issue

Whether a witness can on his own motion approach a

magistrate with a request that his statement may be recorded
under section 164 crpc?

Is it always necessary that the investigating agency move the

witness for taking statement to the magistrate?
 ◦ ”we are disinclined to interpret section
164 (1) of the code as empowering a
magistrate to record the statement of a
Supreme person unsponsored by the investigating
agency.
Court held: ◦ The high court rightly disallowed their
appeal.
 Section 192: Diary of proceedings in
investigation.
• (1) Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the
investigation in a diary, setting forth the time at which the information reached him, the time at which he began
and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained
through his investigation.
• (2) The statements of witnesses recorded during the course of investigation under section 180 shall be inserted in
the case diary.
• (3) The diary referred to in sub-section (1) shall be a volume and duly paginated.
• (4) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use
such diaries, not as evidence in the case, but to aid it in such inquiry or trial.
• (5) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to
see them merely because they are referred to by the Court; but, if they are used by the police officer who made
them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the
provisions of section 148 or section 164, as the case may be, of the Bharatiya Sakshya Adhiniyam, 2023, shall
apply.
Section 509: Non-compliance with provisions of section
183 or section 316
QUIZ
ARREST
Section 35: when police may arrest
without warrant
◦ Any police officer may without an order from a Magistrate and without a warrant, arrest any
person-(a) who commits, in the presence of a police officer, a cognizable offence; or
(b) against whom a reasonable complaint has been made, or credible information has been
received, or a reasonable suspicion exists that he has committed a cognizable offence
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, if the following conditions are satisfied,
namely:-
(i) the police officer has reason to believe on the basis of such complaint, information, or
suspicion that such person has committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary-(a) to prevent such person from
committing any further offence; or(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear or
tampering with such evidence in any manner; or
◦ (d) to prevent such person from making any inducement, threat or promise to any person
acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court
or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot be
ensured,and the police officer shall record while making such arrest, his reasons in
writing:Provided that a police officer shall, in all cases where the arrest of a person is not required
under the provisions of this sub-section, record the reasons in writing for not making the arrest; or
(c) against whom credible information has been received that he has committed a cognizable
offence punishable with imprisonment for a term which may extend to more than seven years
whether with or without fine or with death sentence and the police officer has reason to believe on
the basis of that information that such person has committed the said offence; or
(d) who has been proclaimed as an offender either under this Sanhita or by order of the State
Government; or
◦ (e) in whose possession anything is found which may reasonably be suspected to be stolen
property and who may reasonably be suspected of having committed an offence with
reference to such thing; or
(f) who obstructs a police officer while in the execution of his duty, or who has escaped, or
attempts to escape, from lawful custody; or
(g) who is reasonably suspected of being a deserter from any of the Armed Forces of the
Union; or
(h) who has been concerned in, or against whom a reasonable complaint has been made, or
credible information has been received, or a reasonable suspicion exists, of his having been
concerned in, any act committed at any place out of India which, if committed in India,
would have been punishable as an offence, and for which he is, under any law relating to
extradition, or otherwise, liable to be apprehended or detained in custody in India; or
◦ (i) who, being a released convict, commits a breach of any rule made under sub-section (5) of
section 394; or
(j) for whose arrest any requisition, whether written or oral, has been received from another
police officer, provided that the requisition specifies the person to be arrested and the offence
or other cause for which the arrest is to be made and it appears therefrom that the person
might lawfully be arrested without a warrant by the officer who issued the requisition.
◦ (2)Subject to the provisions of section 39, no person concerned in a non-cognizable offence or against
whom a complaint has been made or credible information has been received or reasonable suspicion
exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.
(3)he police officer shall, in all cases where the arrest of a person is not required under sub-section (1)
issue a notice directing the person against whom a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion exists that he has committed a cognizable
offence, to appear before him or at such other place as may be specified in the notice.
(4)Where such a notice is issued to any person, it shall be the duty of that person to comply with the
terms of the notice.
SECTION 36: Procedure of arrest and duties of
officer making arrest.

◦ Every police officer while making an arrest shall -

• (a) bear an accurate, visible and clear identification of his name which will facilitate easy
identification;
• (b) prepare a memorandum of arrest which shall be -
• (i) attested by at least one witness, who is a member of the family of the person arrested or a respectable
member of the locality where the arrest is made;
• (ii) countersigned by the person arrested;
• (c) inform the person arrested, unless the memorandum is attested by a member of his family, that
he has a right to have a relative or a friend or any other person named by him to be informed of his
arrest.
SECTION 38:Right of arrested person to meet an
advocate of his choice during interrogation.
◦ When any person is arrested and interrogated by the police, he shall be entitled to meet an
advocate of his choice during interrogation, though not throughout interrogation.
◦ (5)Where such person complies and continues to comply with the notice, he shall not be arrested in
respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of
the opinion that he ought to be arrested.
(6)Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify
himself, the police officer may, subject to such orders as may have been passed by a competent Court in
this behalf, arrest him for the offence mentioned in the notice.
(7)No arrest shall be made without prior permission of an officer not below the rank of Deputy
Superintendent of Police in case of an offence which is punishable for imprisonment of less than three
years and such person is infirm or is above sixty years of age.
SECTION 39: Arrest on refusal to give name and
residence.

◦ (1)When any person who, in the presence of a police officer, has committed or has been
accused of committing a non-cognizable offence refuses on demand of such officer to give
his name and residence or gives a name or residence which such officer has reason to believe
to be false, he may be arrested by such officer in order that his name or residence may be
ascertained.
(2)When the true name and residence of such person have been ascertained, he shall be released on a
bond or bail bond, to appear before a Magistrate if so required:Provided that if such person is not
resident in India, the bail bond shall be secured by a surety or sureties resident in India.
(3)If the true name and residence of such person is not ascertained within twenty-four hours from the
time of arrest or if he fails to execute the bond or bail bond, or, if so required, to furnish sufficient
sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction.
SECTION 43:Arrest how made.

◦ (1)In making an arrest the police officer or other person making the same 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:Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary,
her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances
otherwise require or unless the police officer is a female, the police officer shall not touch the person of
the woman for making her arrest.
(2)If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police
officer or other person may use all means necessary to effect the arrest.
◦
(3)The police officer may, keeping in view the nature and gravity of the offence, use handcuff while
making the arrest of a person or while producing such person before the court who is a habitual or repeat
offender, or who escaped from custody, or who has committed offence of organised crime, terrorist act,
drug related crime, or illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting
of coins and currency-notes, human trafficking, sexual offence against children, or offence against the
State.
(4)Nothing in this section gives a right to cause the death of a person who is not accused of an offence
punishable with death or with imprisonment for life.
(5)Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and
where such exceptional circumstances exist, the woman police officer shall, by making a written report,
obtain the prior permission of the Magistrate of the first class within whose local jurisdiction the offence
is committed or the arrest is to be made.
SECTION 44: Search of place entered by person
sought to be arrested.

◦ (1)If any person acting under a warrant of arrest, or any police officer having authority to
arrest, has reason to believe that the person to be arrested has entered into, or is within, any
place, any person residing in, or being in charge of, such place shall, on demand of such
person acting as aforesaid or such police officer, allow him free ingress thereto, and afford all
reasonable facilities for a search therein.
◦
(2)If ingress to such place cannot be obtained under sub-section (1), it shall be lawful in any
case for a person acting under a warrant and in any case in which a warrant may issue, but
cannot be obtained without affording the person to be arrested an opportunity of escape, for
a police officer to enter such place and search therein, and in order to effect an entrance into
such place, to break open any outer or inner door or window of any house or place, whether
that of the person to be arrested or of any other person, if after notification of his authority
and purpose, and demand of admittance duly made, he cannot otherwise obtain admittance:
Provided that if any such place is an apartment in the actual occupancy of a female (not
being the person to be arrested) who, according to custom, does not appear in public, such
person or police officer shall, before entering such apartment, give notice to such female that
she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing,
and may then break open the apartment and enter it.
◦ (3)Any police officer or other person authorised to make an arrest may break open any outer
or inner door or window of any house or place in order to liberate himself or any other
person who, having lawfully entered for the purpose of making an arrest, is detained
therein.
SECTION 46: No unnecessary restraint.

◦ The person arrested shall not be subjected to more restraint than is necessary to prevent his
escape.
SECTION 48. Obligation of person making arrest to
inform about arrest, etc., to relative or friend.

◦ 1)Every police officer or other person making any arrest under this Sanhita shall forthwith give the
information regarding such arrest and place where the arrested person is being held to any of his relatives,
friends or such other persons as may be disclosed or nominated by the arrested person for the purpose of
giving such information and also to the designated police officer in the district.
(2)The police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is
brought to the police station.
(3)An entry of the fact as to who has been informed of the arrest of such person shall be made in a book
to be kept in the police station in such form as the State Government may, by rules, provide.
(4)It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself
that the requirements of sub-section (2) and sub-section (3) have been complied with in respect of such
arrested person.
 Joginder Kumar v. State of UP
1994
◦ The petitioner is a young man of 28 years of age who has completed his LL.B. and has enrolled himself as
an advocate. The Senior Superintendent of Police, Ghaziabad, called the petitioner in his office for making
enquiries in some case. The petitioner on 7-1-1994 at about 10 am appeared personally along with his
brothers Shri Mangeram Choudhary, Nahar Singh Yadav, Harinder Singh Tewatia, Amar Singh and others
before the police officer, he kept the petitioner in his custody. When the brother of the petitioner made
enquiries about the petitioner, lie was told that the petitioner will be set free in the evening after making
some enquiries in connection with a case.
◦ On 7-1-1994 at about 12.55 p.m., the brother of the petitioner being apprehensive of the intentions of
police officer, sent a telegram to the Chief Minister of U.P. apprehending his brother’s implication in some
criminal case and also further apprehending the petitioner being shot dead in fake encounter
◦ In spite of the frequent enquiries, the whereabouts of the petitioner could not be
located. On the evening of 7-1- 1994, it came to be known that petitioner is detained
in illegal custody of, SHO in a different place
◦ On 8-1-1994, it was informed that the SHO was keeping the petitioner in detention
to make further enquiries in some case. So far, the petitioner has not been produced
before the Magistrate concerned. Instead, the SHO directed the relatives of the
petitioner to approach the SSP, Ghaziabad, for release of the petitioner.
◦ On 9-1-1994, in the evening when the brother of petitioner along with relatives went to
SHO to enquire about the well-being of his brother, it was found that the petitioner
had been taken to some undisclosed destination. Under these circumstances, the
present petition has been preferred for the release of Joginder Kumar, the petitioner
herein.
◦ This Court on 11-1-1994 ordered notice to State of U.P. as well as SSP, Ghaziabad.
◦ The said Senior Superintendent of Police along with petitioner appeared before this
Court on 14-1-1994. According to him, the petitioner has been released
◦ To question as to why the petitioner was detained for a period of five days, he would submit that
the petitioner was not in detention at all. His help was taken for detecting some cases relating to
abduction and the petitioner was helpful in cooperating with the police.
◦ Therefore, there is no question of detaining him. Though, as on today the relief in habeas corpus
petition cannot be granted yet this Court cannot put an end to the writ petition on this score.
◦ Where was the need to detain the petitioner for five days; if really the petitioner was not in
detention, why was not this Court informed are some questions which remain unanswered. If really,
there was a detention for five days, for what reason was he detained?
◦ These matters require to be enquired into. Therefore, we direct the learned District Judge,
Ghaziabad to make a detailed enquiry and submit his report within four weeks from the date of
receipt of this order.
Issue

◦ This Court has been receiving complaints

about violation of human rights because
of indiscriminatory arrests. How are we
to strike a balance between the two?
◦ The National Police Commission in its Third Report referring to
the quality of arrests by the police in India mentioned power of
arrest as one of the chief sources of corruption in the police. The
report suggested that, by and large, nearly 60% of the arrests were
either unnecessary or unjustified and that such unjustified police
action accounted for 43.2% of the expenditure of the jails
Third Report of the National Police Commission also suggested:
◦ "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.
 Judgement
◦ “The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of
India. No arrest can be made because it is lawful for the police officer to do so. The existence of the
power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must
be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a
person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made
in a routine manner on a mere allegation of commission of an offence made against a person. It would be
prudent for a police officer in the interest of protection of the constitutional rights of a citizen and
perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after
some investigation as to the genuineness and bona fides 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 of his liberty is a
serious matter. The recommendations of the Police Commission merely reflect the constitutional
concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest
merely on the suspicion of complicity in an offence. There must be some reasonable justification in the
opinion of the officer effecting the arrest that such arrest is necessary and justified.”
Section 51: Examination of accused by medical practitioner at the
request of police officer.
Section 53: Examination of arrested person by medical officer.
Section 56- Health and safety of arrested
person.

◦ It shall be the duty of the person having the custody of an accused to take
reasonable care of the health and safety of the accused.
Section 54: Identification of person
arrested.
 Section 57:Person arrested to be taken before
Magistrate or officer in charge of police station.
 Section 58: Person arrested not to be
detained more than twenty-four hours.
Section 60: Discharge of person
apprehended.
Section 62: Arrest to be made strictly according to Sanhita.
 ARNESH KUMAR V STATE OF
BIHAR 2014

Facts
The marriage between the Petitioner hereinafter referred as (Arnesh Kumar) and Respondent No.2 hereinafter referred as (Sweta
Kiran) was solemnised on dated 1st July 2007. Arnesh Kumar was arrested under the provision of Section 4 of Dowry
Prohibition Act 1961 after his wife Sweta Kiran affirmed that the petitioner has requested/ demanded dowry from her.

The said Respondent i.e. Sweta Kiran alleged before the court and levelled allegations that petitioner family has made a demand
of Rupees 8 Lakhs, a maruti Car, an Air-conditioner, television Set etc. When Sweta Kiran brought the fact in the petitioner
notice he supported his family member and threatened to marry another woman if the demand was not fulfilled.

Denying all the allegations made by the respondent, Petitioner applied for the anticipatory bail which was earlier rejected by
Court of Session and thereafter by the High Court. Aggrieved from the order rejecting the anticipatory bail, Petitioner by way of
Special Leave Petition appealed to the Supreme Court.
 Issues

The issue that was involved in this particular case was the grant of anticipatory bail. The
Anticipatory bail was not granted by the High Court.
1. The case further deals with two of the most important issues i.e. Right of accused person
before and after arrest
2. What are the remedies that is left to a person when there is a misuse of Section 498-A of the
Indian Penal Code by women.
 Observation

◦ Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it
so also the police. There is a battle between the law makers and the police and it
seems that police has not learnt its lesson
◦ it is largely considered as a tool of harassment, oppression and surely not considered
a friend of public.
◦ The need for caution in exercising drastic power of arrest has been emphasized time
and again by the courts but has not yielded the desired result.
◦ The power of arrest is also one of the lucrative sources of police corruption. The
attitude to arrest first and then proceed with the rest is despicable.
◦ It has become a handy tool to the police officer who lack sensitivity or act with
oblique motive.
 Mandatory Directions

◦ The Supreme Court of India under Para 13 of the judgement in order to ensure that police officer do not arrest the accused
unnecessarily and magistrate do not authorize detention, the Court giving the following directions:-
1. All the State Government should instruct its police officers not to automatically arrest a person when an offence under section 498-A
of the Indian Penal Code is registered. The necessity of arrest arises when the case falls under the parameter of section 41 of the Code
of Criminal Procedure.
2. All police officers be provided with the check list containing specified clauses under Section 41 (1) (b) (ii).
3. The police officer shall forward the check list duly filed and furnished with the reason and material necessitated the arrest while
producing accused before the magistrate for further detention.
4. The magistrate while authorizing the order of further detention shall rely upon the report furnished by the police officer and only
after recording the reason duly furnished on Police report and on the satisfaction, the Magistrate will authorize further detention.
5. The decision not to arrest an accused be forwarded to Magistrate within two weeks from the date of institution of the case with a
copy of Magistrate which may extended by the Superintendent of police of the district for the reason to be recorded in writing.
6. Noticeof Appearance in terms of Section 41-A of the Code of Criminal Procedure be
served upon the accused within two weeks from the date of institution of case which
may be extended by the Superintendent of Police after recording the reason in writing.
7. Failure to comply with the directions mentioned above shall rendered the police
officer liable to be punished for contempt of court before High Court having
jurisdiction.
8. Authorizing detention by the Judicial Magistrate without recording the reason, the
concerned Judicial Magistrate shall be liable for Departmental Proceedings by the High
Court.
Prabir Purkayastha v. State (NCT of
Delhi) (2024)
◦ The officers of the PS Special Cell, Lodhi Colony, New Delhi carried out extensive raids at the residential
and official premises of the appellant and the company, namely, M/s. PPK Newsclick Studio Pvt.
Ltd.(“said company”) of which the appellant is the Director in connection with FIR No. 224 of 2023
dated 17th August, 2023 registered at PS Special Cell, Lodhi Colony, New Delhi for the offences
punishable under Sections 13, 16, 17, 18, 22C of the Unlawful Activities(Prevention) Act, 1967(for short
“UAPA”) read with Section 153A, 120B of the Indian Penal Code,
◦ Prabir Purkayastha, the founding editor of NewsClick, was arrested on 3rd October 2023 by the Delhi
Police Special Cell in connection with FIR No. 224/2023 under the Unlawful Activities (Prevention)
Act, 1967 (UAPA) and Sections 153A and 120B of the IPC. During the search and seizure, digital
devices and documents belonging to Purkayastha, his company (M/s. PPK NewsClick Studio Pvt. Ltd.),
and his employees were confiscated.
◦ Purkayastha was produced before a Magistrate at 6:00 a.m. on 4th October 2023 and remanded to
seven days of police custody.
◦ The remand order was then challenged by the Petitioner, in the Delhi High Court on the grounds that the
he had still not been informed of the reasons for his arrest, even at the time of filing the petition. It is also
important to note that during the remand proceedings, the order was passed before the petitioner’s
counsel or family member had been contacted.
◦ The appellant filed a Criminal Miscellaneous Case No. 7278/2023 in the Delhi High Court, seeking that
the court shall declare his arrest and remand as illegal, as his fundamental rights were violated under
Articles 21 and 22 of the Constitution of India.
He challenged the arrest and remand on the following grounds:
1. Failure to provide grounds of arrest in writing.
2.Violation of fundamental rights under Articles 21 and 22 of the Constitution.
3.Illegal remand proceedings without consulting his chosen legal counsel.
◦ The High Court dismissed this plea on 13th October 2023.
Issues
1. Whether the grounds of arrest were communicated to the appellant in writing as required according to
Article 22(1) of the Constitution and Section 43B(1) of the UAPA.

2. Whether the remand proceedings were conducted in a manner that violated the appellant’s
constitutional rights, specifically his right to legal representation.

3. Whether the arrest and remand of the appellant were illegal due to the failure to communicate the
grounds of arrest in writing.
Arguments by the Appellant (Prabir
Purkayastha)
◦ Lack of grounds for arrest: The police did not provide him with a copy of the grounds of arrest,
violating Article 22(1) of the Constitution and Section 43B(1) of UAPA.
• Illegal Remand Proceedings: He was produced before the Magistrate at 6:00 a.m., preventing his chosen
advocate from appearing.
• Instead, a court-appointed lawyer represented him without his consent.
• His actual lawyer, Arshdeep Khurana, was informed only after the remand was granted.
• Judgment in Pankaj Bansal Case (2023 SCC OnLine SC 1244) was cited, arguing that failure to provide
grounds of arrest in writing rendered the detention illegal and unconstitutional.
• The arrest memo did not include specific allegations and only contained standard reasons, failing to
satisfy the legal requirement of informing the accused.
Arguments by the Respondent (State - Delhi
Police)
• No Legal Requirement for Written Grounds of Arrest: The prosecution argued that Article 22(1) and
Section 43B(1) of UAPA do not mandate written communication of arrest grounds.
• Compliance with Due Process: The police claimed that Purkayastha was informed of the grounds
orally, fulfilling legal requirements.
• His relative was notified, who in turn informed his lawyer.
◦ The Pankaj Bansal judgment was delivered on 3rd October 2023, but the remand order was passed on
4th October 2023 before the judgment was widely publicized.
SC held:
◦ Violation of Article 22(1) - Right to be Informed of Arrest Grounds
• Grounds of Arrest Must be Provided in Writing
• The Court reaffirmed the Pankaj Bansal ruling, stating that mere oral communication is insufficient.
• Arrested individuals must be given a written copy of their arrest grounds immediately.
• Arrest Memo Did Not Contain Grounds of Arrest The arrest memo only had generic reasons (e.g.,
preventing further offenses, ensuring investigation) but did not state the specific charges or allegations.
• This was insufficient under UAPA and constitutional protections.
QUIZ
z

SUMMONS AND
PROCLAMATION
ARUSHI BAJPAI
z
OUTLINE

▪ SECTIONS RELATED TO SUMMONS, PROCLAMATION AND

SEARCH

▪ KAHOOT
z

SECTION 63-64
z
z
Sections to discuss

▪ Section 66, 70(3), 72, 73, 77-78, 84-85(1), 90

z
Processes to Compel Production of
Evidentiary Materials

▪ BNSS – Ss 94 (summons),

▪ 96 (search with warrant),

▪ 103 (search procedures),

▪ 105 (electronic recording of search and seizure procedures),

▪ 185 (search without warrant), and

▪ 193(3)(i)(i) (presentation of electronic evidence in charge sheets)

CASES SEARCH
V.S. Kuttan Pillai v. Ramakrishnan, AIR 1980 SC 185

• Facts: -
• The complainant made an application on 4th January 1977 requesting the learned Magistrate to
issue a search warrant to search the office premises of the HMDP Sabha and seize the books,
documents, etc. described in the application, if found
• On the very day the Magistrate issued a search warrant and in fact it was executed, and certain
books, vouchers and papers were produced before the Court
• The present petitioner (original accused 2) requested the learned Magistrate to recall the warrant
and to return the books and documents seized under the authority of the search warrant.
• The Magistrate had before him a complaint filed by the first respondent Ramakrishnan against
the petitioner and S others for having committed offences under sections
403, 409, 420 and 477A read with s. 34, Indian Penal Code.
• The learned Magistrate was of the opinion that in view of the decision of this Court in
Shyamlal Mohanlal v. State of Gujarat(l), and an earlier decision of V. Khalid, J. Of Kerala
High Court, no search warrant could be issued under s. 91 of the Code of Criminal
Procedure, 1973 and accordingly directed that anything recovered pursuant to the search
warrant Issued by him be returned to the person from whom the same were recovered.
• Case goes in the Highcourt
• The High Court after an exhaustive review of the decisions of this Court held that the
provisions relating to search contained in s. 93(1) of the Criminal Procedure Code, 1973,
are not hit by Article 20(3) of the Constitution.
Issue Before The Supreme Court

• 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).
Reasoning

• The Supreme Court observed that the High Court was correct in sustaining the general
search warrant under the section 93(1) (c) of the Criminal Procedure Code.
• The immunity given against self-incrimination extends to all the incriminating evidences
which the accused maybe compelled to give but it does not extend to cover situations
where the evidence which may have the tendency to incriminate the accused is collected
without compelling the accused to be a party to the collection of evidences.
• A passive submission to search cannot be styled as compulsion on the accused to submit
to search. If anything is recovered during the search which may provide incriminating
evidence against the accused, it cannot be called a compelled testimony.
• The search of the premises which are occupied by the accused would
not violate Art. 20(3) of the Constitution if the accused is a party to
such search, without being compelled.
• A search and seizure which is pursuant to a search warrant under s. 93
(1) (c) of the Criminal Procedure Code would not have the farthest
tendency to force an accused to incriminate himself. The accused is
not obligatory to participate in the search. He may continue to be a
passive spectator, or he may even be absent.
• Just because the accused is occupying the premises to be searched it can't be said
that by such search and consequent seizure of documents, including the document
which can contain statements due to the private knowledge of the accused and
which can have a bent to incriminate him, would violate the constitutional
guarantee against self-incrimination because he's not compelled to do anything.
• Section 93(1)(c) comprehends a situation where a search warrant is issued because
the court is unaware of not only the person but even the place where the
documents could also be found for which a general search is important.
• Therefore, power of the court under this clause can't be hamper by importing a
number of the requirements of clause (b) of the section 93(1) of CrPC.
• In the present case although the order of the magistrate was laconic certain
important aspects couldn't be over-looked. The objects of the Sabha were of a
general charitable nature. An earlier warrant was quashed by the Hon’ble High
Court.
• When the complainant made more serious claims a search warrant was issued to
conductan enquiry of the institution. The office premises, the books and other
documents of the Sabha couldn't be said to be in possession of a person accused.
They were within the possession of the institution.
• An enquiry of such a public place under the authority of a general warrant can
easily be sustained under section 93(1) (c). In this way, there was no illegality in the
Magistrate's order.
JUDGEMENT

• 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.
Judgement

• The court held that 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.
GN SAIBABA case

• Facts:
• G.N. Saibaba, a former Delhi University professor, was arrested in
May 2014 by Maharashtra Police.
• He was accused of being associated with the banned Communist
Party of India (Maoist) and its armed wing, the People’s Liberation
Guerrilla Army (PLGA).
• His arrest was based on digital evidence allegedly recovered from co-
accused Hem Mishra, a student caught carrying a memory card with
incriminating material.
• The prosecution claimed that Saibaba was actively involved in
recruiting cadres for CPI (Maoist) and spreading Maoist ideology.
• Charges & Trial (2017)
• Saibaba was charged under the Unlawful Activities (Prevention) Act
(UAPA) for:
• Waging war against the state
• Being a member of a banned terrorist organization
• Providing logistical support to Maoists
• The trial court in Gadchiroli, Maharashtra, convicted him in 2017 and
sentenced him to life imprisonment.
• The case heavily relied on electronic evidence (emails, letters, pen
drives, and a laptop).
HEALTH ISSUES AND BAIL PLEA

• Saibaba was 90% disabled, wheelchair-bound, and suffers from

multiple ailments, including spinal atrophy, heart problems, and high
blood pressure.
• His lawyers repeatedly sought bail on medical grounds, arguing that
prison conditions were worsening his health.
• However, most bail pleas were rejected, citing the seriousness of the
charges.
Bombay High Court Acquittal (2022)

• In October 2022, the Bombay High Court acquitted Saibaba, ruling

that:
• The Maharashtra government failed to obtain proper sanction for
prosecution under UAPA.
• Since the sanction was a legal requirement, the entire trial was
rendered invalid.
• The court ordered his immediate release.
Issue with House Search

• Investigating Officer Suhas Bawche along with his search party proceeded to the
house of accused No.6 G.N. Saibaba. The Investigating Officer disclosed the
purpose of his visit to the accused No.6 G.N. Saibaba in presence of panch
witnesses.
• During the house search, seizure was made of a Compact Disk, Digital Versatile
Disk, Pen Drive, Hard Disk, three Cell Phones, two Sim Cards, Books,
Magazines and certain other articles vide panchnama (Exhibit 165). Electronic
and digital gadgets and devices which were seized during the house search of
accused 6-G.N. Saibaba, were sent to the CFSL, Mumbai for forensic analysis.
Mr. Bhavesh Nikam (PW 21) has done the forensic analysis of the electronic
gadgets and data and submitted a report at Exhibit 267, along with the cloned
copies/mirror images of the data contained in the electronic gadgets and hard
disk.
• From personal search of accused No.6 G.N. Saibaba, one mobile
phone, RC Book of a vehicle and cash amount of Rs. 320/- was seized.
Accused No.6 was brought from Delhi and produced before the Judicial
Magistrate First Class, Aheri who in turn remanded him to the judicial
custody.
• Panch PW2 Jagat Bhole admitted that at the relevant time, accused
No.6 G.N. Saibaba requested the police that the search should be taken
in the presence of professors or his Advocate. Particularly, he admits
that at the time of house search, he himself and accused No.6 G.N.
Saibaba were kept by locking the door within and the Police carried out
the process of search.
• He stated that the Police did not allow anyone to enter into the house of
accused No.6 G.N. Saibaba during the search. Though the prosecution
argued that this is a vague admission, in the context of nature of his
evidence, we are unable to overlook this vital admission by merely
assuming it to be an oversight admission.
• This witness has in so many words stated that he is totally illiterate and
he should not be taken as panch on account of his illiteracy.
• Moreover, he stated that near about 20 to 25 Delhi Police and equal
number of Maharashtra Police went inside the house of the accused
No.6 G.N. Saibaba and by apeal136 & 137.17.odt locking the door
carried searches. He stated in particular that he himself and accused
No.6 G.N. Saibaba were kept out of the house.
• These specific admissions speak volumes about the credibility of the
process of entire search and seizure.
• It has come in the evidence of PW-2 Jagat Bhole that he does not know
the difference between CD and DVD, or difference between Pen-drive
and blue-tooth, or between a CD Drive and DVD Drive. He also states
that he does not know what is meant by hard disk.
• In substance, the entire process of search and seizure from the house of
accused No.6 G.N. Saibaba is doubtful.
• Despite a pre- planned raid by High Ranking Police Officers, an
illiterate panch was used.
• Panchnama does not bear reference to sealing and labeling of seized
articles. In that view of the matter and for these reasons, we hold that
prosecution has failed to prove seizure and apeal136 &
137.17.odt search of incriminating material from the house search of
accused No.6 Saibaba by leading credible evidence.
• SC AQUITTED HIM SAYING HC HAS WELL REASONED JUDGMENT OF ACQUITTAL
 RAJESH V STATE OF MP

• The case Rajesh v. State of Madhya Pradesh pertains to the brutal murder of a 15-year-old boy, Ajit Pal alias Bobby,
in July 2013. The accused were Om Prakash Yadav, his brother Raja Yadav, and his son Rajesh Yadav, who were
neighbors of the deceased. The prosecution alleged that the trio conspired to kidnap Ajit Pal for ransom, resulting in
his murder.
• Trial Court Proceedings: The Additional Sessions Judge, Jabalpur, convicted all three accused on December 29, 2016
• Raja Yadav and Rajesh Yadav were found guilty under Sections 302 (murder) read with 120B (criminal conspiracy),
364A (kidnapping for ransom) read with 120B, and 201 (causing disappearance of evidence) of the Indian Penal Code
(IPC).​
• Om Prakash Yadav was convicted under Section 364A read with 120B.​
• Both Raja and Rajesh Yadav were sentenced to death, while Om Prakash Yadav received a life sentence.
• High Court Proceedings: Upon appeal, the Madhya Pradesh High
Court upheld the convictions and sentences on August 10, 2017,
confirming the death penalties for Raja and Rajesh Yadav.
• Supreme Court Proceedings: The accused appealed to the Supreme
Court of India, which reviewed the case with a focus on the reliability
of circumstantial evidence presented by the prosecution.
Issues before SC

• Legality and Procedural Lapses in Search and Seizure

• Admissibility of Evidence Obtained
• The proverbial last nails in the coffin of the prosecution’s case, if at all
needed, are the shocking lapses and the slipshod investigation on the
part of the police
• It is on record that when the Investigating Officer (PW-16) undertook
the first search of Om Prakash Yadav’s house under Ex. P-37
Panchnama, nothing was found.
• However, a later search with the aid of Brijesh Yadav led to the seizure
of two mobile phones from a trunk in one of the rooms of Om Prakash
Yadav’s house. As to why these phones were not found during the first
search is not explained.
• that apart, Shaival @ Bambam (PW-9), a witness to the seizure of the
phones, claimed that there were no SIM cards in the mobiles but
candidly admitted that they did not open the mobiles and look inside
• He said that they did not try to operate the mobiles or see the numbers
inside and that both the phones were turned off.
• The self-contradictory deposition of this witness does not aid the
dubious investigative process adopted by the police.
• As regards the call data and the ransom calls, we may note that Santosh Jadhav, Assistant Nodal Officer,
Reliance Communication, was examined as PW-17 and spoke of the call data of mobile number
8305620342 from which the ransom calls were made. According to him, the SIM card with the said
mobile number was given to one Bhuraji, son of Deepu, whose address was House No. 433, Sanjay
Gandhi Ward, Tehsil Jabalpur.
• He produced Bhuraji’s ‘Customer Application Form’ along with his attached Election ID card. These
documents were marked as Ex. D6. The call data of 28.03.2013 showed that this SIM card was used on
the mobile handset with IMEI No. 358327028551270. He marked in evidence Ex. P35 in that regard.
Therefore, the mobile number from which ransom calls were made was in the name of one Bhuraji, s/o
Deepu, and his address was available.
• However, the police did not even attempt to contact Bhuraji or examine him to find out how and why his
SIM card was used for making the ransom calls.
• Even more startling is the fact that, though PW-17 placed on record
actual proof of the allotment of this mobile number to Bhuraji (Ex. D6),
no such steps were taken by the police to establish the link between Om
Prakash Yadav and mobile number 9993135127, which was attributed
to him. PW-15 baldly stated that the said mobile number was allotted to
Om Prakash Yadav but did not mark in evidence any document in proof
thereof.
• In effect, no palpable connection is established between the said mobile
number and Om Prakash Yadav.
• On the above analysis, we allow the appeals and set aside the
conviction and sentences of all the three appellants on all counts. They
shall be set at liberty forthwith
Regular Bail and Anticipatory
Bail
Provisions and cases
 SECTION 478
In What Cases Bail To Be Taken

▪ (1) When any person other than a person accused of a non- bailable offence is arrested or
detained without warrant by an officer in charge of a police station, or appears or is brought
before a Court, and is prepared at any time while in the custody of such officer or at any stage of
the proceeding before such Court to give bail, such person shall be released on bail:
▪ Provided that such officer or Court, if he or it thinks fit, may, and shall, if such person is
indigent and is unable to furnish surety, instead of taking bail bond from such person, discharge
him on his executing a bond for his appearance as hereinafter provided.
▪ Explanation.-Where a person is unable to give bail bond within a week of the date of his arrest,
it shall be a sufficient ground for the officer or the Court to presume that he is an indigent
person for the purposes of this proviso:
Provided further that nothing in this section shall be deemed to affect the provisions of sub-
section (3) of section 135 or section 492.
▪ Notwithstanding anything in sub-section (1), where a person has failed to
comply with the conditions of the bond or bail bond as regards the time and
place of attendance, the Court may refuse to release him on bail, when on a
subsequent occasion in the same case he appears before the Court or is
brought in custody and any such refusal shall be without prejudice to the
powers of the Court to call upon any person bound by such bond or bail bond
to pay the penalty thereof under section 491.
 Section 479
Maximum Period For Which UTP Can Be Detained

▪ Where a person has, during the period of investigation, inquiry or trial under this Sanhita of
an offence under any law (not being an offence for which the punishment of death or life
imprisonment has been specified as one of the punishments under that law) undergone
detention for a period extending up to one-half of the maximum period of imprisonment
specified for that offence under that law, he shall be released by the Court on bail:
▪ Provided that where such person is a first-time offender (who has never been convicted of
any offence in the past) he shall be released on bond by the Court, if he has undergone
detention for the period extending up to one-third of the maximum period of imprisonment
specified for such offence under that law:
▪ Provided further that the Court may, after hearing the Public Prosecutor and for reasons to be
recorded by it in writing, order the continued detention of such person for a period longer
than one-half of the said period or release him on bail bond instead of his bond:
▪ Provided also that no such person shall in any case be detained
during the period of investigation, inquiry or trial for more
than the maximum period of imprisonment provided for the
said offence under that law.

▪ Explanation.-In computing the period of detention under this

section for granting bail, the period of detention passed due to
delay in proceeding caused by the accused shall be excluded.
▪ (2) Notwithstanding anything in sub-section (1), and subject
to the third proviso thereof, where an investigation, inquiry or
trial in more than one offence or in multiple cases are
pending against a person, he shall not be released on bail by
the Court.

▪ (3)The Superintendent of jail, where the accused person is

detained, on completion of one-half or one-third of the period
mentioned in sub-section (1), as the case may be, shall
forthwith make an application in writing to the Court to
proceed under sub-section (1) for the release of such person
on bail.
 Section 480
When Bail May Be Taken In Non- Bailable Offence

▪ When any person accused of, or suspected of, the commission of any non-bailable offence is
arrested or detained without warrant by an officer in charge of a police station or appears or is
brought before a Court other than the High Court or Court of Session, he may be released on
bail, but-
▪ (i) such person shall not be so released if there appear reasonable grounds for believing that
he has been guilty of an offence punishable with death or imprisonment for life;
▪ (ii) such person shall not be so released if such offence is a cognizable offence and he had been
previously convicted of an offence punishable with death, imprisonment for life or
imprisonment for seven years or more, or he had been previously convicted on two or more
occasions of a cognizable offence punishable with imprisonment for three years or more but
less than seven years:
▪ Provided that the Court may direct that a person referred to in clause (i) or clause (ii)
be released on bail if such person is a child or is a woman or is sick or infirm:

▪ Provided further that the Court may also direct that a person referred to in clause (ii)
be released on bail if it is satisfied that it is just and proper so to do for any other
special reason:

▪ Provided also that the mere fact that an accused person may be required for being
identified by witnesses during investigation or for police custody beyond the first
fifteen days shall not be sufficient ground for refusing to grant bail if he is otherwise
entitled to be released on bail and gives an undertaking that he shall comply with
such directions as may be given by the Court:
▪ Provided also that no person shall, if the offence alleged to have been committed by
him is punishable with death, imprisonment for life, or imprisonment for seven years
or more, be released on bail by the Court under this sub-section without giving an
opportunity of hearing to the Public Prosecutor.

▪ (2)If it appears to such officer or Court at any stage of the investigation, inquiry or
trial, as the case may be, that there are not reasonable grounds for believing that the
accused has committed a non-bailable offence, but that there are sufficient grounds
for further inquiry into his guilt, the accused shall, subject to the provisions of section
492 and pending such inquiry, be released on bail, or, at the discretion of such officer
or Court, on the execution by him of a bond for his appearance as hereinafter
provided.
▪ (3) When a person accused or suspected of the commission of an offence punishable with
imprisonment which may extend to seven years or more or of an offence under Chapter VI,
Chapter VII or Chapter XVII of the Bharatiya Nyaya Sanhita, 2023 or abetment of, or
conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1),
the Court shall impose the conditions,-(a) that such person shall attend in accordance with
the conditions of the bond executed under this Chapter;(b) that such person shall not
commit an offence similar to the offence of which he is accused, or suspected, of the
commission of which he is suspected; and(c) that such person shall not directly or indirectly
make any inducement, threat or promise to any person acquainted with the facts of the case
so as to dissuade him from disclosing such facts to the Court or to any police officer or
tamper with the evidence, and may also impose, in the interests of justice, such other
conditions as it considers necessary.
▪ (4)An officer or a Court releasing any person on bail under sub-section (1) or sub-section (2), shall
record in writing his or its reasons or special reasons for so doing.
▪ (5)Any Court which has released a person on bail under sub-section (1) or sub-section (2), may, if it
considers it necessary so to do, direct that such person be arrested and commit him to custody.
▪ (6)If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not
concluded within a period of sixty days from the first date fixed for taking evidence in the case, such
person shall, if he is in custody during the whole of the said period, be released on bail to the
satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise
directs.
▪ (7)If, at any time, after the conclusion of the trial of a person accused of a non-bailable offence and
before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing
that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the
execution by him of a bond for his appearance to hear judgment delivered.
ANTICIPATORY BAIL/PRE-
ARREST BAIL
 ▪ WHAT IS ANTICIPATORY BAIL?
▪ WHAT IS THE NEED OF ANTICIPATORY BAIL?
▪ 41ST LAW COMMISSION REPORT
▪ IS FILING F.I.R. IMPORTANT FOR ANTICIPATORY BAIL?

Section 482 ▪ UNTIL WHEN BAIL SHOULD BE GRANTED? WHAT

DURATION?

▪ IN WHICH COURT IT IS APPLIED?

▪ IF ORDER GIVEN, WHEN OPERATIVE?
 ▪ ACT:SC/ST ACT- explicit bar in section 18
▪ NO EXPLAICIT BAR BUT COURT REFUSE TO GIVE IT IN-
NOT POCSO, UAPA, NDPS

▪ CASES: CORRUPTION, ECONOMIC, RAPE CASES,

APPLICABLE CRIME AGAINST WOMAN AND CHILDREN
ANY BAIL CAN BE ▪ SECTION 480(5)
CANCELLED AT ▪ SECTION 483(3)
ANYTIME UNDER
 SECTION 482- Direction for grant of bail to person
apprehending arrest
▪ .(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-
bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that
Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

▪ (2)When the High Court or the Court of Session makes a direction under sub-section (1), it may include such
conditions in such directions in the light of the facts of the particular case, as it may think fit, including-

▪ (i) a condition that the person shall make himself available for interrogation by a police officer as and when
required;

▪ (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any
person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any
police officer;

▪ (iii) a condition that the person shall not leave India without the previous permission of the Court;
▪ (iv) such other condition as may be imposed under sub-section (3) of section 480, as if the bail were granted under
that section.
▪ (3)If such person is thereafter arrested without warrant by an
officer in charge of a police station on such accusation, and is
prepared either at the time of arrest or at any time while in
the custody of such officer to give bail, he shall be released
on bail; and if a Magistrate taking cognizance of such offence
decides that a warrant should be issued in the first instance
against that person, he shall issue a bailable warrant in
conformity with the direction of the Court under sub-section
(1).
▪ (4)Nothing in this section shall apply to any case involving
the arrest of any person on accusation of having committed
an offence under section 65 and sub-section (2) of section 70
of the Bharatiya Nyaya Sanhita, 2023.
 REFUSAL TO GRANT ANTICIPATORY
BAIL

A few circumstances under which Anticipatory Bail may be refused are:

▪ The possibility of the Applicant to abscond in the event cognizance is taken by the trial
court or warrant of arrest has been issued by the trial court.
If the prima facie case with which the Applicant has been charged can be made out.
▪ The Applicant has previously undergone an imprisonment on conviction in respect of any
cognizable offence.
Where a case can be made out that the Applicant is capable of influencing investigation
to his advantage.
▪ Status in life, affluence or otherwise should not be relevant considerations for the
Court granting Anticipatory Bail.
Anticipatory bails are mostly refused to the people who are not
cooperating with the investigation or it requires custodial interrogation
or in any way they are influencing the evidence of the case, then
awarding of anticipatory bails becomes tough, moreover sometimes the
heavy section of crimes like Ss. 302, 307, 376, 120B, 420, 467, 468 etc
of IPC, S. 13 of the Prevention of Corruption Act, etc also results in
rejection of the application.
 CANCELLATION OF ANTICIPATORY BAIL

▪ The power to cancel the Anticipatory Bail is vested with the

Court who grants the same, which can be due to new or
supervening circumstances arise after the release on bail such
as abuse of liberty by hampering the investigation or tampering
with witness or committing same or similar offence or a case is
made out in a petition filed under Section 483 of Criminal
Procedure Code, 1973.

▪ The Courts may therefore grant anticipatory bail, but with a

view to prevent the person hampering the investigation
provision/s may be made by the Court granting anticipatory bail
subject to such conditions as it thinks fit.
• Sec. 480(5) & Sec. 483 of CrPC deal with the cancellation of
anticipatory Bail. They imply that a Court which has the
power to grant anticipatory Bail is also empowered to
cancel the Bail or recall the order related to Bail upon
appropriate consideration of facts.
• Investigating agency may move court which granted such
bail for a direction of arrest under Section 483(3).

• It is open to the police or the investigating agency to move

the court concerned, which grants anticipatory bail, for a
direction under Section 483 (3) to arrest the accused, in the
event of violation of any term.
SUSHILA AGGARWAL V. STATE
(NCT DELHI). 2020 SCC ONLINE SC
98

ISSUES
• 1. Should there be a fixed time period to seek anticipatory
Bail, so as to enable a person to surrender before the Trial
Court and seek for regular Bail?
• 2. Should the life of anticipatory Bail end at the time of
summoning by the Court?
• 3. Can Courts impose any conditions while granting such
Bail or not?
 Fixed time period

▪ There is nothing in CrPC that indicates the grant of anticipatory Bail should
be time-bound.

o However, under CrPC, it is discretionary power of the Court to decide on a

case-to-case basis and impose a time limit while granting pre-arrest Bail.

o Also, this duration primarily does not end after first summoning by the
Court and can continue till the end of the trial period.
 Condition on Bail

▪ If any Court wants to limit the Bail, it can attach special features or
circumstances warranting the same.

o The Court while granting anticipatory Bail, should examine the

seriousness and gravity of the offence (like nature of the crime, material
placed on records, etc.) to impose any condition on the petitioner, if
necessary.

o The police can approach the Court seeking permission for arrest in case
of breach of such imposed conditions.
 FIR

▪ Application for anticipatory Bail could be filed by a person before the

FIR (First Information Report) as soon as the facts make clear there is a
substantial reason for the arrest. – FIR need not be registered to seek
ANTICIPATORY BAIL

▪ Appellate jurisdiction- To check the correctness of the granted Bail lies

with the superior Court on the request of the investigating agency or the
State.
▪ The Court remarked that “when Parliament has not thought it appropriate
to curtail the rights of the citizens and the power of Courts in granting
anticipatory Bails, hence, it is not in larger societal interest to curtail such
powers & limit the liberty of citizens. The rights of the citizens are
fundamental and not the restrictions.”

▪ The five-judge bench was pleased to unanimously hold that " the
protection granted to a person under Section 438 Cr.PC should not
invariably be limited to a fixed period; it should be extended in favour of
the accused without any restriction on time."
 Validity of Anticipatory Bail after Summon

▪ Answering the second question the Hon'ble court 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.”
▪ The Supreme Court was cautious while answering the second question by
granting discretionary powers to the court to limit the tenure of the Anticipatory
Bail in case of special or peculiar facts of case.
▪ Justice Shah was of the opinion that the normal rule should be not to limit the operation
of the order in relation to a period of time. He, however, added ,“the conditions can be
imposed by the concerned court while granting prearrest 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.”
▪ Justice Bhat in his opinion wrote, “it would not be in the larger interests of society if the
court, by judicial interpretation, limits the exercise of that power: the danger of such
an exercise would be that in fractions, little by little, the discretion, advisedly kept
wide, would shrink to a very narrow and unrecognizably tiny portion, thus frustrating
the objective behind the provision, which has stood the test of time, these 46 years.”
 S. 483- Special powers of High Court or
Court of Session regarding bail.
▪ A High Court or Court of Session may direct –

▪ (a)that any person accused of an offence and in custody, be released on bail, and if the offence is of the nature specified in sub-section (3) of
Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;

▪ (b)that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified :Provided that the High Court or the
Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or
which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is,
for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.[Provided further that the High Court or the Court
of Session shall, before granting bail to a person who is accused of an offence triable under sub-section (3) of section 376 or section 376AB or
section 376DA or section 376DB of the Indian Penal Code, give notice of the application for bail to the Public Prosecutor within a period of
fifteen days from the date of receipt of the notice of such application.] [Inserted by Criminal Law (Amendment) Act, 2018 (22 of 2018), dated
11.8.2018.]

▪ (2)[ The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the
person under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code.] [Inserted by
Criminal Law (Amendment) Act, 2018 (22 of 2018), dated 11.8.2018.]

▪ (3)A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him
to custody.
 S.484- Amount of bond and
reduction thereof.
▪ (1)The amount of every bond executed under this Chapter
shall be fixed with due regard to the circumstances of the
case and shall not be excessive.

▪ (2)The High Court or Court of Session may direct that the bail
required by a police officer or Magistrate be reduced.
S.485- 487 BNSS
 S. 492 Cancellation of bond and bail
bond
▪ Without prejudice to the provisions of section 491, where a bond or bail bond under this
Sanhita is for appearance of a person in a case and it is forfeited for breach of a condition,-
▪ (a) the bond executed by such person as well as the bond, if any, executed by one or more
of his sureties in that case shall stand cancelled; and
▪ (b) thereafter no such person shall be released only on his own bond in that case, if the
police officer or the Court, as the case may be, for appearance before whom the bond was
executed, is satisfied that there was no sufficient cause for the failure of the person bound
by the bond to comply with its condition:
▪ Provided that subject to any other provisions of this Sanhita he may be released in that
case upon the execution of a fresh personal bond for such sum of money and bond by one
or more of such sureties as the police officer or the Court, as the case may be, thinks
sufficient.
 State of Rajasthan v. Balchand (1977) 4
SCC 308
▪ The Order of the Court, was delivered by KRISHNA IYER, J
▪ The basic rule may perhaps be tersely put, as bail, not jail except
where there are circumstances suggestive of fleeing from justice or
thwarting the course of justice or creating other troubles in the shape
of repeating offences or intimidating witnesses and the like, by the
petitioner who seeks enlargement on bail from the court
 Vipan Kumar Dhir v. State of Punjab
(2021) 15 SCC 518
▪ FACTS OF THE CASE

▪ The appellant, also the father of the victim filed an appeal against the high court of Punjab and
Haryana in the Supreme Court. The appeal is against an anticipatory bail granted to the accused, also
the mother-in-law of the victim, charged under sections
304B, 302 read with 120B of Indian Penal Code. The appellant alleged that the accused started to
harass his daughter immediately after the marriage for dowry. The victim died within 2 months of the
marriage. It was alleged by the appellant that the cause of death was poison administered to the
deceased via her mother-in-law, the accused/respondent.
▪ Soon after lodging of the FIR by the appellant, the accused moved to the session court for bail, but was
rejected. The accused ran away from the arrest for two years and was declared as proclaimed offender.
▪ Hence, they moved to the High Court for the same which was also granted.
 Issue

▪ The appellant pleaded that the High Court has overlooked the well-
established principles of granting the anticipatory bail.
▪ A bench headed by Chief Justice N V Ramana cancelled the anticipatory bail granted to the
accused and directed her to surrender. The court made the following observations-
▪ The bail granted to an accused can be removed by the superior court, if the said court has
overlooked any material fact, or principles, or important factors that disallow the granting of
the bail.
▪ The apex court reiterated the principles stated in Daulat Ram and Ors. V State of Haryana
and recently in X v. State of Haryana and Another, that state that “Rejection of bail in a non-
bailable case at the initial stage and the cancellation of bail so granted, have to
be considered and dealt with on different basis. Very
cogent and overwhelming circumstances are
necessary for an order directing the cancellation of the bail, already granted.
▪ Generally speaking, the grounds for cancellation of bail, broadly
are: interference or attempt to
interfere with the due course of administration of
Justice or evasion or attempt to evade the due course
of justice or abuse of the concession granted to the accused in any manner.
▪ However, bail once granted should not be cancelled in
a mechanical manner without considering whether
any supervening circumstances have rendered it no
longer conducive to a fair trial to allow the accused to
retain his freedom by enjoying the concession of bail during the trial
▪ The Supreme Court observed that the respondent had been
absconding for over two years after being declared a
proclaimed offender and had only joined the investigation
after securing interim bail.

▪ Emphasizing the seriousness of the allegations and the

respondent's conduct, the Supreme Court set aside the High
Court's order granting anticipatory bail and directed the
respondent to surrender before the trial court.
DEFAULT BAIL: SECTION 187
ARUSHI BAJPAI
OUTLINE

• What is remand
• Types of Remand
• Section 187
• Cases
• Kahoot
 REMAND

• IT IS AN AID TO THE SUCCESSFUL COMPLETION OF AN INVESTIGATION. IN OTHER WORDS, IT IS THE

REMAND WHERE WE SEND BACK THE ACCUSED INTO THE CUSTODY OF POLICE OR THAT OF THE
MAGISTRATE FOR COLLECTING EVIDENCE AND COMPLETION OF INVESTIGATION. THE PURPOSE OF
REMAND IS TO FACILITATE COMPLETION OF INVESTIGATION.

• THIS POWER COMES INTO PICTURE WHEN THE INVESTIGATION IS NOT COMPLETED WITHIN 24 HOURS
OF ARREST AND THE ACCUSED IS FURTHER REQUIRED IN CUSTODY FOR THE SUCCESSFUL
COMPLETION OF INVESTIGATION.
 TYPES OF REMAND

• The power of sending back of the accused in the custody of competent

authority is given under 3 provisions of the CrPC.
1- S. 187(2),
2- S.232(b) and (committal of case)
3- S.346(2) of the CrPC. (power of postpone or adjourn proceedings)
• The difference lies in the stage at which it is ordered.
• While remand under S.187(2) relates to the stage of investigation and is ordered for
furthering the investigation and can be either in judicial custody or police custody, remand
under S.232(b) relates to the stage when the magistrate commits the case, he can remand
the accused to the custody during and until the conclusion of the trial subject to the
provisions of bail under the code and finally remand under S.346(2) relates to a stage
after cognizance and can only be sent to judicial custody.
• The remand under S.232(b) and S.346(2) is for securing the presence of the accused during
the trial
 EXECUTIVE MAGISTRATE

• If the arrested accused is produced before the Executive Magistrate, he is

empowered to authorise the detention in such custody either police or judicial only
for a week, in the same manner namely by one or more orders but after one week
he should transmit him to the nearest Judicial Magistrate along with the records.
When the arrested accused is so transmitted the Judicial Magistrate, for the
remaining period, that is to say excluding one week or the number of days of
detention ordered by the Executive Magistrate, may authorise further detention
within that period of first fifteen days to such custody either police or judicial.
• Who Makes The Remand Application:
Remand application under S.187(1) is made by the officer in charge of the
police station or the person making the investigation, if he is not below the
rank of the sub inspector whenever he thinks that the investigation would not
be completed within 24 hours as mandated by S. 58 and he has grounds to
believe that the accusation or the information is well informed.
• He must also forward the accused and the transit the copy of the entries in
the diary along with the application.
 SECTION 187: PROCEDURE WHEN INVESTIGATION CANNOT BE
COMPLETED IN TWENTY-FOUR HOURS.

• (1)Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the
period of twenty-four hours fixed by section 58, and there are grounds for believing that the accusation or information is well-
founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-
inspector, shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter specified relating to the
case, and shall at the same time forward the accused to such Magistrate.
• (2)The Magistrate to whom an accused person is forwarded under this section may, irrespective of whether he has or has no
jurisdiction to try the case, after taking into consideration whether such person has not been released on bail or his bail has been
cancelled, authorise, from time to time, the detention of the accused in such custody as such Magistrate thinks fit, for a term not
exceeding fifteen days in the whole, or in parts, at any time during the initial forty days or sixty days out of detention period of
sixty days or ninety days, as the case may be, as provided in sub-section (3), and if he has no jurisdiction to try the case or commit it
for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such
jurisdiction.
• (3)The Magistrate may authorise the detention of the accused person, beyond the period
of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no
Magistrate shall authorise the detention of the accused person in custody under this
sub-section for a total period exceeding-(i) ninety days, where the investigation relates
to an offence punishable with death, imprisonment for life or imprisonment for a term
of ten years or more;(ii) sixty days, where the investigation relates to any other offence,
and, on the expiry of the said period of ninety days, or sixty days, as the case may be,
the accused person shall be released on bail if he is prepared to and does furnish bail,
and every person released on bail under this sub-section shall be deemed to be so
released under the provisions of Chapter XXXV for the purposes of that Chapter.
• (4) No Magistrate shall authorise detention of the accused in custody of the
police under this section unless the accused is produced before him in person
for the first time and subsequently every time till the accused remains in the
custody of the police, but the Magistrate may extend further detention in
judicial custody on production of the accused either in person or through the
audio-video electronic means.
• (5) No Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the
custody of the police.

• Explanation I.-For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in sub-
section (3), the accused shall be detained in custody so long as he does not furnish bail.

• Explanation II.-If any question arises whether an accused person was produced before the Magistrate as required under sub-
section (4), the production of the accused person may be proved by his signature on the order authorising detention or by the
order certified by the Magistrate as to production of the accused person through the audio-video electronic means, as the case
may be:

• Provided that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand
home or recognised social institution:

• Provided further that no person shall be detained otherwise than in police station under police custody or in prison under
judicial custody or a place declared as prison by the Central Government or the State Government.
• (6) Notwithstanding anything contained in sub-section (1) to sub-section (5), the officer in charge of the police station or the
police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Magistrate is not available,
transmit to the nearest Executive Magistrate, on whom the powers of a Magistrate have been conferred, a copy of the entry in the
diary hereinafter specified relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate,
and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused
person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and, on the expiry of the period
of detention so authorised, the accused person shall be released on bail except where an order for further detention of the
accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is
made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate
under this sub-section, shall be taken into account in computing the period specified in sub-section (3):Provided that before the
expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case
together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the
police station or the police officer making the investigation, as the case may be.
• (7)A Magistrate authorising under this section detention in the custody of the police shall record his
reasons for so doing.
• (8)Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a
copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.
• (9)If in any case triable by a Magistrate as a summons-case, the investigation is not concluded
within a period of six months from the date on which the accused was arrested, the Magistrate
shall make an order stopping further investigation into the offence unless the officer making the
investigation satisfies the Magistrate that for special reasons and in the interests of justice the
continuation of the investigation beyond the period of six months is necessary.
• (10)Where any order stopping further investigation into an offence
has been made under sub-section (9), the Sessions Judge may, if he is
satisfied, on an application made to him or otherwise, that further
investigation into the offence ought to be made, vacate the order
made under sub-section (9) and direct further investigation to be
made into the offence subject to such directions with regard to bail
and other matters as he may specify.
 CBI V. ANUPAM KULKARNI, AIR 1992 SC
1768
• A case relating to abduction of four diamond merchants and one K was
registered at Police Station on 16.9.91. The investigation was entrusted to
C.B.I. During investigation it was disclosed that between 14th and 15th
September 1991, the four diamond merchants, K and one driver were
kidnapped from two hotels, and that K was one of the associates of the
accused, responsible for the kidnapping
• On 4.10.91 K was arrested and was produced before the Chief Metropolitan Magistrate, on
5.10.91 and he was remanded to judicial custody till 11.10.91. On 10.10.91 a test
identification parade was arranged but K refused to cooperate, and his refusal was
recorded by the concerned Magistrate. On 11.10.91 the investigating officer moved an
application, seeking police custody of K, which was allowed. When he was being taken on
the way K pretended to be indisposed and he was taken to a Hospital, where he remained
confined on the ground of illness upto 21.10.91 and then he was referred to Cardiac Out-
patient Department of the Hospital. K was again remanded to judicial custody by the
Magistrate upto 29.10.91 and thereafter he was sent to Jail.
• As the Police could not take him into police custody all these days the
investigating officer again applied to the court of Chief Metropolitan
Magistrate for police custody of K.
• The Chief Metropolitan Magistrate relying on a judgment in State 159 (Delhi
Admn.) v. Dharam Pal and others, 1982 Crl. L.J.1103 refused police remand.
• The High Court, without deciding the question, granted bail.
• In these appeals, the C.B.I. challenged the order of the High Court,
contending that the Chief Metropolitan Magistrate erred in not granting
police custody.
• High Court erred in granting bail to K
 ISSUE

• Whether or not after the expiry of the initial period of 15 days a person
could still be remanded to police custody by the Magistrate before whom he
was produced
 COURT DECIDED

• The Judicial Magistrate can in the first instance authorise the detention of the
accused in such custody i.e. either police or judicial from time to time but the
total period of detention cannot exceed fifteen day in the whole.
• After the expiry of the first period of fifteen days the further remand during
the period o;f investigation can only be in judicial custody. There cannot be
any detention in the police custody after the expiry of first fifteen days even
in a case where some more offences either serious or otherwise committed by
him in the same transaction come to light at a later stage.
• But this bar does not apply if the same arrested accused is involved in a
different case arising out of a different transaction. Even if he is in judicial
custody in connection with the investigation of the earlier case he can formally
be arrested regarding his involvement in the different case and associate him
with the investigation of that other case
• We may, however, in the end clarify that the position of law stated above
applies to Section 167 as it stands in the Code. If there are any State
amendments enlarging the periods of detention, different consideration may
arise on the basis of the language employed in those amendments.
• The appeals are accordingly dismissed.
 V SENTHIL BALAJI V. ED (2023 INSC 677)

FACTS
• The appellant in the appeals arising out of Special Leave Petition (Criminal) Nos. 8652-8653 of 2023 is none
other than the wife of the appellant in the appeals arising out of Special Leave Petition (Criminal) Nos. 8939-
8940 of 2023, being the writ Petitioner before the High Court. Incidentally, the respondents, though filed
separate appeals arising out of Special Leave Petition (Criminal) Nos. 7437 of 2023, 7460 of 2023, and 8750
of 2023, are appositely referred as respondents.
• A case was registered in Enforcement Case Information Report No. 21 of 2021 by the Respondent No. 1 against
the appellant and others. It was followed by summons dated 04.08.2021 and 07.10.2021 requiring the
attendance of the appellant.
• Further summons were issued on 07.03.2022 and 24.07.2022. A search was conducted by the Authorised
Officer invoking Section 17 of the PMLA, 2002 at his premises on 13.06.2023.
• Finding that the appellant was not extending adequate cooperation, the Authority had invoked
Section 19 of the PMLA, 2002 by way of an arrest on 14.06.2023. An arrest memo was also
prepared. Though grounds of arrest were furnished, the appellant declined to acknowledge them.
The information pertaining to the arrest was also intimated to his brother, sister-in-law and wife.
• The appellant was taken to the Tamil Nadu Government Multi Super Speciality Hospital, Chennai as
he complained of chest pain. His wife rushed to the High Court and filed a Habeas Corpus petition
being HCP No. 1021 of 2023 on the very same day. In the meanwhile, the respondents filed an
application before the learned Principal Sessions Judge seeking judicial custody for 15 days. An
order of remand was passed sending him to judicial custody till 28.06.2023.
• At the request of the Special Public Prosecutor, Enforcement Directorate, Chennai filed along with ECIR,
Remand Report and other documents I came down to Tamil Nadu, Government Multi Super Speciality
Hospital, Omanthur, Chennai by 3.30 p.m. Dr. J. CECILY MARY MAJELLA, Associate Professor, Cardiology
certified that the accused SenthilBalaji is conscious and oriented
• The accused complained that he was man handled by the ED officials but no complaint of any bodily
injury.
• The prosecution has established prima facie case against the accused for the offences
u/s. 3 of Prevention of Money Laundering Act, punishable u/s 4 of the said Act. Hence, the accused is
remanded to Judicial custody till 28.06.2023.”
•
• Thereafter, the appellant filed an application for bail which was dismissed on
16.06.2023 by a speaking order considering all the contentions. This has attained
finality. The respondents made a further application seeking custody for further
investigation.
• All the above activities took place on a single day, except the dismissal of the
application for bail. The Habeas Corpus petition filed by the appellant's wife was
taken up for hearing on 15.06.2023 on an urgent mentioning, whereby the
appellant was directed to be shifted to a private hospital of his choice to undergo a
bypass surgery. A surgery was accordingly done.
• On the application filed by the respondents, the learned Principal
Sessions Judge granted custody to them for a period of 8 days, while
dismissing the bail application as noted earlier
• After filing an application on 17.06.2023, seeking a direction that the first 15
days custody period should not come in the way of actual period of custody,
before the learned Principal Sessions Judge, the respondents approached
this Court in Special Leave Petition (Criminal) No. 7437 of 2023.
• In the meanwhile, in the pending Habeas Corpus petition additional
grounds were raised questioning the orders of the learned Principal Sessions
Judge granting both judicial and police remand, no specific prayer as such
was sought for.
 IN THE RESULT, THE PETITION IS ALLOWED AND SHRI KARTHIK DASARI, DEPUTY DIRECTOR, DIRECTORATE OF ENFORCEMENT, CHENNAI IS
PERMITTED TO HAVE THE CUSTODY OF THE ACCUSED SH. V. SENTHIL BALAJI FOR 8 DAYS FROM 16.06.2023 WITH THE FOLLOWING
CONDITIONS:

• (1) The Deputy Director of Enforcement Directorate shall not remove the accused from the Kaveri Hospital, who has been admitted for
treatment.

• (2) The Deputy Director of Enforcement Directorate shall interrogate the accused at the hospital by taking into consideration of his
ailments and the treatment given to him in the hospital after obtaining necessary opinion from the team of Doctors, who are
giving treatment to him about his fitness for interrogation.

• (3) The Deputy Director of Enforcement Directorate interrogate the accused without any hindrance to the health conditions of the
accused and also the treatment provided to him.

• (4) The Deputy Director of Enforcement Directorate is directed to provide sufficient food and shelter to the accused and they should
not use third degree method and should not cause any cruelty to the accused.

• (5) No threat of coercion will be made on the Respondent/accused.

• (6) The family members of the accused are to be permitted to see the accused during the custody, subject to the medical advice.

• (7) The Deputy Director of Enforcement Directorate is directed to provide necessary security for the accused while he is in his
custody.

• (8) The Deputy Director of Enforcement Directorate is directed to produce the accused on 23.06.2023 by 3.00 p.m. through video
conference and the petition is ordered accordingly.”
 ISSUES

• whether the Enforcement Directorate (ED) is entitled to obtain an

accused’s custody thereunder
• whether such custody can be obtained when the first 15 days after
arrest have elapsed
• On 22.06.2023, the respondents filed an application before the High Court of Madras to exclude the period of
hospitalisation for the purpose of counting custody period as no actual custody was taken.
• HIGH COURT DECIDED
• “(i) The Habeas Corpus Petition in H.C.P. No. 1021 of 2023 shall stand dismissed; The Petition would be
maintainable in exceptional circumstances, but this case does not attract any exceptional circumstance and
consequently since an order of remand had been passed by a Court of competent jurisdiction, the relief sought
in the petition cannot be granted
• (ii) The period from 14.06.2023 till such time the detenu/accused is fit for custody of the respondent shall be
deducted from the initial period of 15 days under Section 167(2)of the Code of Criminal Procedure;
• However, the learned Judge sent the file back to the Division Bench to
adjudicate upon the date of custody to be reckoned followed by the
actual days that might be required.
 SUBMISSIONS OF THE APPELLANT:

• There is no power vested under the PMLA, 2002 to seek custody in favour of an authorized officer.
Such an authorized officer is not a police officer and therefore, Section 167(2) of the Criminal
Procedure Code, 1973 (hereinafter referred to as “the CrPC, 1973”), with particular reference to a
remand in his favour, is not available. Custody under Section 167(2) of the CrPC, 1973 can only be
in favour of a police officer and not any other agency.
• The outer limit of 15 days of custody to the police from the date of arrest has worked itself out.
Therefore, no Court can extend it under any circumstance. Placing reliance on CBI v. Anupam J.
Kulkarni
• A writ of Habeas Corpus is certainly maintainable in the present case in view of procedural non-
compliance.
 SUBMISSIONS OF THE RESPONDENTS:

• The writ petition, as filed invoking Article 226 of the Constitution of India is not maintainable. There was a legal
arrest following which the arrested person was forwarded to the learned Principal Sessions Judge. Orders were
passed on merit, both for judicial custody and thereafter in favour of the respondents. The writ petition was filed
only challenging the arrest as illegal. When it was taken up on 15.06.2023 the accused was produced already.
Thus, even on that day the prayer was not in subsistence.
• The conditions attached are challenged before this Court. Even the appellant has stated in his arguments that
he was not to be questioned during his so-called ailment in the hospital but was ready thereafter.
• The word “custody” cannot be given a restrictive meaning. The PMLA, 2002 is a special Act having its own
distinct characteristics. It is a sui generis legislation. It provides for an elaborate mechanism for a thorough
investigation through search, seizure and arrest. Section 65 of the PMLA, 2002 clearly speaks of the overriding
effect over the CrPC, 1973.
• The reliance placed by the appellant on Anupam J. Kulkarni (supra), as
followed thereafter by this Court is misconceived. In the said case, the facts
are different as it was a case of counting the days after the arrestee was
given custody in favour of the investigating agency, whereas no such
custody has ever been made to the respondents.
• All legal actions taken by the appellant lack bona fides, they are solely to
evade custody. The appellant has not even challenged the rejection of the
bail wherein similar contentions have been taken note of and rejected.
 SUPREME COURT
• The learned Solicitor General is right in his submission that apart from the fact that the word “custody” is different from
“detention”, it can only be physical.
• Admittedly, physical custody has not been given to the respondents. Admission of the appellant to the hospital of his
choice cannot be termed as a physical custody in favour of the respondents.
• Custody could not be taken on the basis of the interim order passed by the High Court which certainly shall not come in
the way of calculating the period of 15 days. An investigating agency is expected to be given a reasonable freedom to do
it's part. To say that the respondents ought to have examined the appellant in the hospital, and that too with the
permission of the doctors, can never be termed as an adequate compliance.
• The decision of this Court in Anupam J. Kulkarni (supra), as followed subsequently requires reconsideration by a
reference to a larger Bench. (PARA 95)
• It is directed to place the matter before Hon'ble the Chief Justice of India for appropriate orders to decide the larger
issue of the actual import of Section 167(2) of the CrPC, 1973 as to whether the 15 days period of custody in favour of
the police should be only within the first 15 days of remand or spanning over the entire period of investigation - 60 or 90
days, as the case may be, as a whole.
 SANJAY DUTT V. STATE (1994) 5 SCC 410

• Sanjay Dutt was key accused in Bombay blast 1993

• Knowingly and intentionally procured AK-56 rifles, 25 hand grenades and one 9
mm. Pistol and cartridges for the purpose of committing terrorist acts. By keeping
the AK-56 rifles, hand grenades, pistol and cartridges in his possession willingly,
accused Sanjay Dutt facilitated these objectives. Some parts of the rifle, the 9 mm.
pistol and 53 rounds of live cartridges were recovered during the course of
investigation.
• Accused Yusuf Mohsin Nullwaal, Kesri Bapuji Adenia, Rusi Framrose Mulla,
Ajay Yashprakash Marwah, caused wilful destruction of evidence namely 1
AK-56 rifle, one 9 mm. pistol, and cartridges by deliberately removing them
from the house of accused Sanjay Dutt, at his instance, with the intention to
protect the offender i.e. Sanjay Dutt from legal consequences and therefore,
they are also guilty of the offence u/s 201 IPC.
 ISSUES

• The proper construction of clause (bb) of sub- section (4) of Section 20 of the
TADA Act indicating the nature of right of an accused to be released on bail
thereunder, on the default to complete investigation within the time allowed
therein
• The bail application was pending, and the charge sheet was filed.
• We have no doubt that the common stance before us of the nature of
indefeasible right of the accused to be released on bail.
• The indefeasible right accruing to the accused in such a situation is
enforceable only prior to the filing of the challan and it does not survive or
remain enforceable on the challan being filed, if already not availed of.
• Once the challan has been filed, the question of grant of bail has to be
considered and decided only with reference to the merits of the case under
the provisions relating to grant of bail to an accused after the filing of the
challan.
 ASLAM DESAI V. STATE OF
MAHARASHTRA (1992) 4 SCC 272
• A complaint was lodged against the appellant and 8 others at Miraj City Police Station, District
Sangli alleging commission of offences punishable under Sections 147, 148, 302 and 323 read
with s 149IPC, in regard to an incident which took place at about 11 p.m. on 8th September
1990. The appellant was arrested in that connection on the next day i.e. 9th September 1990.
• The appellant thereafter made an application before the Sessions Judge, Sangli for being
enlarged on bail that application was rejected.
• The appellant approached the High Court but later withdrew the application and then once again
moved the Sessions Judge, Sangli for bail under the proviso to Section 167(2) of the Code on the
ground that the investigation had not been completed within 90 days.
• The learned Sessions Judge by his order dated 11th March 1991 directed the release of the appellant on
bail.
• After the charge-sheet was submitted and the documents were tendered subsequent thereto, the State of
Maharashtra moved an application under Section 439(2) of the Code in the High Court for cancellation of
bail granted by the Sessions Judge.
• The High Court by the impugned Order dated 31st March 1992 cancelled the bail. The High Court was of
the view that since the learned Sessions Judge had granted bail on a technical ground, namely, failure to file
the charge-sheet within the time allowed and since the investigation revealed the commission of a serious
offence of murder.
• The Highcourt cancelled the bail and ordered appellant to surrendered the bail.
 ISSUE

• Can bail granted under the proviso to Sub-section (2) of sec 167 of the CrPC,
1973 for failure to complete the investigation within the period prescribed
thereunder be cancelled on the mere presentation of the challan (charge-
sheet) at any time thereafter?
• The order for release on bail may however be cancelled under Section
437(5) or Section 439(2). Generally, the grounds for cancellation of bail, broadly, are,
interference or attempt to interfere with the due course of administration of Justice, or
evasion or attempt to evade the course of justice or abuse of the liberty granted to him.
• It will thus be seen that this Court came to the conclusion that once an order for release
on bail is made under the proviso to Section 167(2) it is not defeated by lapse of time
and on the mere filing of the charge-sheet at a subsequent date.
ED V. KAPIL WADHAWAN (2023) 5 SCR 918

• FACTS AND ISSUES

• The two respondents, while being confined in judicial custody since 10.5.2020 a case registered by the
CBI, came to be arraigned as accused in ECIR/MBZO-I/3/2020 registered by the ED for the alleged
commission of offence under Section 3 of the PMLA.
• On 14.5.2020, the applicants were produced before the learned Special Court, Mumbai and were then
remanded to police custody and on 27.5.2020 were subsequently remanded to judicial custody.
• The High Court while granting default bail to the applicants formulated the following question for
decision:
• Whether in computing the remand period of 60 or 90 days as contemplated in proviso (a) of
Section 167 (2) of CrPC, the day of remand is to be included or excluded.
• The applicants contended before the High Court that they were arrested on 14.5.2020 and on the very same
day, they were remanded by the Magistrate and such remand orders came to be passed from time to time.
• As per the ED, On 13.7.2020 i.e. Monday, the ED filed the physical complaint before the Court. Based on these
facts, the applicants' counsel submitted that the period of 60 days from the date of remand of the applicants
(14.5.2020) expired on 12.7.2020 (Sunday) and the applicants on 13.7.2020 sought enlargement on default bail,
under the proviso (a)(ii) of Section 167 (2), CrPC.
• 13.7.2020, at around 11 AM, the bail applications were presented for physical filing in the Sessions Court and a
token acknowledging the filing was issued and the applications were also numbered.
• the ED claimed to have filed the complaint on 13.7.2020, the 60 day period ends on 13.7.2020 (wherein it seeks
to exclude the date of remand i.e. 14.5.2020). Thus, as per the ED, complaint was filed in time.
• The learned Special Court denied default bail on 14.7.2020 with the understanding that the 60 days' time
limit for filing the complaint expired. The learned Judge opined that the date of remand will have to be
excluded and the 60 days period will have to be computed from 15th May 2020. With this reasoning the
bail application came to be rejected.
• On respondents' challenge to the rejection of their default bail applications, the High Court after
analyzing the implication of the rival submissions and interpreting the statutory provisions and their
applications to the facts of the case, concluded that the learned Special Judge incorrectly excluded the
date of remand, while computing the 60-day period. Since the chargesheet by the ED was filed on
13.7.2020, being beyond 60 days by including the day of remand i.e. 14.5.2020, the applicants were found
to be entitled to default bail.
• Accordingly, a direction was issued for release of the respondents by adverting to the provisions of
Section 167 (2) of the CrPC, subject to the accused persons furnishing their bail bonds. This order of the
High Court is challenged in the present appeals.
 CONTENTIONS OF THE COUNSEL

• Assailing the legality of the judgment dated 20.8.2020, Mr. S.V. Raju, learned ASG, argues that for
computation of the prescribed 60/90 day remand period, one of the days on either side of the
remand period has to be excluded and in the present case, either the date of remand i.e. 14.5.2020
or the 60th day i.e. 12.07.2020 must be excluded for computing the eligibility for default bail. In
support of the ED's contentions, Mr. Raju would place strong reliance, inter-alia, on Aslam Babalal
Desai v. State of Maharashtra
• An alternate argument is also made to the effect that even if the period of 60 days as stipulated
under the first proviso to Section 167 (2) of the CrPC expired on 12.7.2020, the same being a
Sunday, the provisions of Section 10, General Clauses Act would come into play and as such the 60
day period which expired on Sunday will stand extended to Monday i.e. 13.7.2020.
 JUDGEMENT
• The accused herein were remanded on 14.05.2020 and as such, the chargesheet ought to have been filed on or before 12.07.2020
(i.e. the sixtieth day). But the same was filed, only on 13.07.2020 which was the 61st day of their custody. Therefore, the right to
default bail accrued to the accused persons on 13.07.2020 at 12 : 00 AM, midnight, onwards. On that very day, the accused filed
their default bail applications at 8 : 53 AM. The ED filed the chargesheet, later in the day, at 11 : 15 AM.
• which followed the Constitution Bench in Sanjay Dutt(supra) it was rightly held that if the accused persons avail their indefeasible
right to default bail before the chargesheet/final report is filed, then such right would not stand frustrated or extinguished by any
such subsequent filing
• We therefore declare that the stipulated 60/90 day remand period under Section 167 CrPC ought to be computed from the date
when a Magistrate authorizes remand. I.E the day of remand should be included while computing the 60/90 days.
• If the first day of remand is excluded, the remand period, as we notice will extend beyond the permitted 60/90 days' period
resulting in unauthorized detention beyond the period envisaged under Section 167 CrPC.
• the impugned order of the High Court granting default bail to the respondents by applying the proviso (a)(ii) of
Section 167(2) CrPCis found to be in order
 STATE OF KARNATAKA V KALANDAR SHAFI, 2024

• FACTS:
• The case originated from an incident in October 2024, where the brother of the
complainant died under suspicious circumstances.
• The police registered an FIR under Sections 190, 308(2), 308(5), 351(2), and 352
of the Bharatiya Nyaya Sanhita, 2023 (BNS).
• The accused, Kalandar Shafi, was arrested and remanded to judicial custody.
• The prosecution later sought additional police custody to obtain voice samples of the
accused.
• The Judicial Magistrate First Class (JMFC), Mangalore, denied the request for
further police custody.
• The magistrate held that the 40-day limit for seeking police custody (as per
Section 187 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)) had
already expired.
• The State of Karnataka challenged the magistrate’s decision in the
Karnataka High Court.
 ISSUE

• whether the police could seek custody after the 40-day limit in cases where
the punishment exceeds ten years.
• The High Court dismissed the State's petition and upheld the Magistrate’s
order, which had denied further police custody of the accused, Kalandar
Shafi.
• The court ruled that police custody beyond the 40-day limit prescribed under
Section 187 of BNSS was impermissible for offenses punishable with
imprisonment of less than 10 years.
• Two Categories Under BNSS Section 187:
• BNSS replaces Section 167(2) of the CrPC and introduces different time limits for police
custody and investigation based on the severity of the offense:
1.For offenses punishable up to 10 years of imprisonment:
1. Police custody must be sought within 40 days.
2. Investigation must be completed within 60 days.
2.For offenses punishable with 10 years or more:
1. Police custody can be sought within 60 days.
2. Investigation must be completed within 90 days.
• the State of Karnataka argued that since some of the charges against
Kalandar Shafi had a punishment extending up to 10 years, it should fall in
the second category (10 years or more), allowing them to seek custody
within 60 days.
• The Defense argued that "punishment up to 10 years" falls under the first
category, meaning custody had to be sought within 40 days—which had
already lapsed.
 JUDGMENT

• The Karnataka High Court ruled that "up to 10 years" does not mean "10
years or more"; rather, it falls within the first category (40-day limit for
police custody).
• The court rejected the State’s plea and upheld the Magistrate’s decision,
denying further police custody beyond the 40-day limit.
• The decision clarifies that an offense punishable by exactly 10 years or less
falls in the 40-day category, not the 60-day category.
 BHAGWANT SINGH V COMMISSIONER OF
POLICE, 1985
• Bhagwant Singh, the petitioner, lodged a complaint regarding an alleged criminal
act.
• After investigation, the police filed a final report (closure report), stating that no
case was made out against the accused.
• The magistrate accepted the closure report without issuing any notice to the
complainant.
• The complainant challenged this action, arguing that he had a right to be heard
before the closure report was accepted.
 ISSUE

• Whether a magistrate is required to give notice to the complainant before

accepting a closure report filed by the police under Section 173(2) of the
CrPC.
• When a Police Officer Submits report (chargesheet or closure), magistrate
has three option
• 1- accept the report
• 2- reject the report
• 3- Ask for further investigation under 156(3)
• Here in this case the police submitted closure report based on which
magistrate drops the proceedings
 JUDGMENT

• When magistrate decides to accept the closure report, they. Must inform it to
the informant and give them right to be heard which is their constitutional
right.
Complaint cases
 ▪ Section 210, 213 cognizance
▪ 212 and 232 committal
outline ▪ 230- closure of evidence
▪ 223-228- trial
 Pre- Trial Procedure of Private
Complaints
▪ Complaint to magistrate 223
▪ Cognizance 210
▪ Issue of Process 227
▪ Dismissal 226
▪ Postponement of Issue of Process 225
▪ If an offence happen, what option does the aggrieved
person has?
1. F.I.R.
2. Complaint to magistrate
 Section 210- Cognizance of offences by
Magistrates.
▪ (1) Subject to the provisions of this Chapter, any Magistrate of the
first class, and any Magistrate of the second class specially
empowered in this behalf under sub-section (2), may take cognizance
of any offence—
▪ (a) upon receiving a complaint of facts, including any complaint filed
by a person authorised under any special law, which constitutes such
offence;
▪ (b) upon a police report (submitted in any mode including electronic
mode) of such facts;
▪ (c) upon information received from any person other than a police
officer, or upon his own knowledge, that such offence has been
committed.
▪ The Chief Judicial Magistrate may empower any Magistrate of
the second class to take cognizance under sub-section (1) of
such offences as are within his competence to inquire into or
try.
 Section 213- Cognizance of offences by
Courts of Session.
▪ Except as otherwise expressly provided by this Sanhita or by
any other law for the time being in force, no Court of Session
shall take cognizance of any offence as a Court of original
jurisdiction unless the case has been committed to it by a
Magistrate under this Sanhita.
 Section 212- Making over of cases to
Magistrates.

▪ (1)Any Chief Judicial Magistrate may, after taking cognizance

of an offence, make over the case for inquiry or trial to any
competent Magistrate subordinate to him.

▪ (2)Any Magistrate of the first class empowered in this behalf

by the Chief Judicial Magistrate may, after taking cognizance
of an offence, make over the case for inquiry or trial to such
other competent Magistrate as the Chief Judicial Magistrate
may, by general or special order, specify, and thereupon such
Magistrate may hold the inquiry or trial.
 Section 232- Commitment of case to Court of
Session when offence is triable exclusively by
it.
▪ When in a case instituted on a police report or otherwise, the accused appears or is brought
before the Magistrate and it appears to the Magistrate that the offence is triable exclusively
by the Court of Session, he shall-
▪ (a) commit, after complying with the provisions of section 230 or section 231 the case to the
Court of Session, and subject to the provisions of this Sanhita relating to bail, remand the
accused to custody until such commitment has been made;
▪ (b) subject to the provisions of this Sanhita relating to bail, remand the accused to custody
during, and until the conclusion of, the trial;
▪ (c) send to that Court the record of the case and the documents and articles, if any, which
are to be produced in evidence;
▪ (d) notify the Public Prosecutor of the commitment of the case to the Court of Session:
▪ Provided that the proceedings under this section shall be completed within a
period of ninety days from the date of taking cognizance, and such period may be
extended by the Magistrate for a period not exceeding one hundred and eighty
days for the reasons to be recorded in writing:

▪ Provided further that any application filed before the Magistrate by the accused or
the victim or any person authorised by such person in a case triable by Court of
Session, shall be forwarded to the Court of Session with the committal of the case.
▪ PRIVATE COMPLAINT PROCEDURE
 Section 223- Examination of
complainant
▪ (1)A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall
examine upon oath the complainant and the witnesses present, if any, and the substance of such
examination shall be reduced to writing and shall be signed by the complainant and the witnesses,
and also by the Magistrate:\
▪ Provided that no cognizance of an offence shall be taken by the Magistrate without giving the
accused an opportunity of being heard:
▪ Provided further that when the complaint is made in writing, the Magistrate need not examine the
complainant and the witnesses-
▪ (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has
made the complaint; or
▪ (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section
212:Provided also that if the Magistrate makes over the case to another Magistrate under section 212
after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
▪ (2)A Magistrate shall not take cognizance on a complaint against a public servant
for any offence alleged to have been committed in course of the discharge of his
official functions or duties unless-

▪ (a) such public servant is given an opportunity to make assertions as to the

situation that led to the incident so alleged; and(b) a report containing facts and
circumstances of the incident from the officer superior to such public servant is
received.
 Section 224- Procedure by Magistrate not
competent to take cognizance of the case.
▪ If the complaint is made to a Magistrate who is not competent
to take cognizance of the offence, he shall,-

▪ (a) if the complaint is in writing, return it for presentation to

the proper Court with an endorsement to that effect;

▪ (b) if the complaint is not in writing, direct the complainant to

the proper Court.
 Section 225-Postponement of issue of process

▪ Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take

cognizance or which has been made over to him under section 212, may, if he thinks fit, and
shall, in a case where the accused is residing at a place beyond the area in which he exercises
his jurisdiction, postpone the issue of process against the accused, and either inquire into the
case himself or direct an investigation to be made by a police officer or by such other person
as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for
proceeding:
▪ Provided that no such direction for investigation shall be made,-
▪ (a) where it appears to the Magistrate that the offence complained of is triable exclusively by
the Court of Session; or
▪ (b) where the complaint has not been made by a Court, unless the complainant and the
witnesses present (if any) have been examined on oath under section 223.
▪
(2)In an inquiry under sub-section (1), the Magistrate may, if
he thinks fit, take evidence of witnesses on oath:Provided that
if it appears to the Magistrate that the offence complained of
is triable exclusively by the Court of Session, he shall call
upon the complainant to produce all his witnesses and
examine them on oath.

▪ (3)If an investigation under sub-section (1) is made by a

person not being a police officer, he shall have for that
investigation all the powers conferred by this Sanhita on an
officer in charge of a police station except the power to arrest
without warrant.
 Section 226- Dismissal of
complaint.
▪ If, after considering the statements on oath (if any) of the complainant and of
the witnesses and the result of the inquiry or investigation (if any) under
section 225, the Magistrate is of opinion that there is no sufficient ground for
proceeding, he shall dismiss the complaint, and in every such case he shall
briefly record his reasons for so doing. Chapter XVII Commencement of
Proceedings before Magistrates.
 section 227- Issue of process.

▪ If in the opinion of a Magistrate taking cognizance of an offence there is sufficient

ground for proceeding, and the case appears to be-(a) a summons-case, he shall
issue summons to the accused for his attendance; or(b) a warrant-case, he may issue
a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or
to appear at a certain time before such Magistrate or (if he has no jurisdiction
himself) some other Magistrate having jurisdiction:
Provided that summons or warrants may also be issued through electronic means.

(2)No summons or warrant shall be issued against the accused under sub-section (1)
until a list of the prosecution witnesses has been filed.
▪ (3)In a proceeding instituted upon a complaint made in
writing, every summons or warrant issued under sub-section
(1) shall be accompanied by a copy of such complaint.

(4)When by any law for the time being in force any process-
fees or other fees are payable, no process shall be issued until
the fees are paid and, if such fees are not paid within a
reasonable time, the Magistrate may dismiss the complaint.

(5)Nothing in this section shall be deemed to affect the

provisions of section 90.
 Section 228- Magistrate may dispense with personal
attendance of accused.

▪ (1)Whenever a Magistrate issues a summons, he may, if he sees

reason so to do, dispense with the personal attendance of the
accused and permit him to appear by his advocate.

(2)But the Magistrate inquiring into or trying the case may, in his
discretion, at any stage of the proceedings, direct the personal
attendance of the accused, and, if necessary, enforce such
attendance in the manner hereinbefore provided.
Section 230: Supply to accused of copy of
police report and other documents.
 H. S. Bains Director Small ... vs The State
(Union Territory Of ... on 10 October, 1980
▪ FACTS
▪ On August 13, 1979, Gurnam Singh a resident of Chandigarh submitted a complaint to the
Judicial Magistrate 1st Class 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 11, 1979, at about 8
a.m., tress-passed 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.

▪ 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) of the Code of Criminal Procedure.

▪ The police after completing the investigation, submitted a report to the Magistrate under Sec. 173 of the Code
of Criminal Procedure 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 and directed the issue of process to the appellant.

▪ Aggrieved by the issue of process, the appellant filed Criminal Miscellaneous Case No. 26-M of 1980, 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. We granted Special Leave and straightaway heard the appeal with the consent of
the parties.
 Arguments

▪ Shri Kapil Sibal urged that the Magistrate had issued process to the accused without recording the statement,
on oath, of the complainant and the witnesses under Sec. 200 Criminal Procedure Code and therefore, he must
be taken to have taken cognizance of the case under Sec. 190(1)(b), as if upon a police report.
▪ Shri Sibal submitted that the Magistrate was not competent to take cognizance of the case as if it was upon a
police report as the report under Sec. 173 Criminal Procedure Code submitted to him disclosed that no offence
had been committed by the accused.
▪ According to Shri Sibal, in the circumstances of the case, the Magistrate, on receipt of the report under Sec.
173 Criminal Procedure Code 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 Criminal Procedure Code and then
proceed to issue process if he was satisfied that process ought to be issued.
 Held
▪ 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
under section 202 crpc.

▪ 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. 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 examine 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.
▪ 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.

▪ We do not propose to say a word about the merits of the case since it was entirely a matter for the learned
Magistrate to take cognizance or not to take cognizance of the several offences.
 Vinubhai Malvia v. State of Gujrat 2019

▪ Facts:
▪ The FIR is by one Nitinbhai Mangubhai Patel, Power-of-Attorney holder
of Ramanbhai Bhagubhai Patel and Shankarbhai Bhagubhai Patel, who
are allegedly residing at “UK or USA”
▪ The gravamen of the complaint made in the FIR is that one Vinubhai
Haribhai Malaviya is blackmailing these two gentlemen with respect to
agricultural land which is just outside the city of Surat, Gujarat and
which admeasures about 8296 square meters.
▪ FIR alleges that Ramanbhai Patel and Shankarbhai Patel are absolute
and independent owners of this land, having obtained it from one
Bhikhabhai Khushalbhai and his wife Bhikiben Bhikhabhai in the year
1975.
▪ The FIR then narrates that because of a recent price-hike of lands in
the city of Surat, the heirs of Bhikhabhai and Bhikiben together with
Vinubhai Haribhai Malaviya and Manubhai Kurjibhai Malaviya have
hatched a conspiracy in collusion with each other, and published a
public notice under the caption “Beware of Land-grabbers” in a local
newspaper on 07.06.2008.
▪ Sometime thereafter, Vinubhai Haribhai Malaviya then contacted an
intermediary, who in turn contacted Nitinbhai Patel
▪ according to Nitinbhai Patel, Vinubhai Malaviya demanded an
amount of Rs. 2.5 crores in order to “settle” disputes in respect of this
land.
▪ It is alleged in the said FIR that apart from attempting to extort
money from the said Nitinbhai Patel, the heirs of Bhikhabhai and
Bhikiben together with Vinubhai Haribhai Malaviya and Manubhai
Kurjibhai Malaviya have used a fake and bogus ‘Satakhat’ and
Power-of-Attorney in respect of the said land, and had tried to grab
this land from its lawful owners Ramanbhai and Shankarbhai Patel
▪ The background to the FIR is the fact that one Khushalbhai was the original
tenant of agricultural land, bearing Revenue Survey No.342, admeasuring 2
Acres, 2 Gunthas, situated at Puna (Mauje), Choriyasi (Tal), District Surat.
▪ Khushalbhai died, after which his son Bhikhabhai became tenant in his place.
Bhikhabhai in turn died on 23.12.1984 and his wife Bhikiben died on
18.12.1999. A public notice dated 07.06.2008 was issued in ‘Gujarat Mitra’ and
‘Gujarat Darpan Dainik’ by the heirs of Bhikhabhai, stating that Ramanbhai and
Shankarbhai Patel are land-grabbers, and are attempting to create third-party
rights in the said property. This led to the legal heirs of Bhikhabhai, through
their Power-of-Attorney holder, applying on 12.06.2008 to the Collector,
Nanpura (Surat), to cancel revenue entries that were made way back in 1976.
▪ Vinubhai applied for further investigation under section 173
(8) to additional session judge which was accepted.

▪ Case went to High court, it was held that 173 (8)- power of
further investigation is not vested with court post cognizance
 ▪ 1- further investigation at what stage? Pre cognizance or
post cognizance under section 156(3)
ISSUES IN SC ▪ Can further investigation be ordered under section
173(8) post cognizance by the magistrate?
 ▪ 156(3)- POST COGNIZANCE
▪ 173(8)- POST COGNIZANCE
BUT BEFORE TRIAL STARTS

HOW?
INTERPRETED THREE SECTIONS

SC HELD 1- 2(h) - "investigation" includes all the proceedings under this

Code for the collection of evidence conducted by a police officer
or by any person (other than a Magistrate) who is authorised by
a Magistrate in this behalf
2-173(8)- further investigation
3- 156(3)- “Any Magistrate empowered under section 190 may
order such an investigation as above mentioned.”
Idea is collection of evidence
 Kishun Singh and others VS. State of
Bihar 1993
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 S. 173 of the Criminal P.C.,
1973 (The Code for short) to stand trial along with those already named
therein, in exercise of power conferred by S. 319 of the Code
 facts

▪ On the evidence of 27th February, 1990 Umakant 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 died in the
hospital on the next day.
▪ In course of investigation statements of the informant and others were recorded and a
charge-sheet was forwarded to the Court of the Magistrate wherein eighteen persons,
were shown as the offenders.

▪ The names of the present two appellants were not included In the report, as In the
opinion of the investigating officer their involvement in the commission of the crime was
not established.

▪ The eighteen persons named in the report were committed to the Court of Session under
Section 209 of the Code of Criminal Procedure to stand trial.
▪ When the matter came up before the Sessions Judge, an application was presented
under Section 319 of the Code praying to implead the appellants also as accused
persons.

▪ To the show cause notice issued to the appellants, they submitted that though they
were not present at the place of occurrence, they falsely named in the First
Information Report and the investigating officer had rightly omitted their names from
the charge-sheet filed in Court
▪ The Sessions Judge rejected the plea of the appellants and impleaded them
as co-accused along with the eighteen others. This was done before the
commencement of the actual trial.

▪ The appellants' revision flied before the High Court was dismissed.
 Argued

▪ The appellants moved this Court by special leave under Article 136 of the Constitution
of India, against the High Court's order contending that unless evidence was recorded
during the course of trial, the Sessions Judge had no jurisdiction under Section 319 of
the Code of Criminal Procedure 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; that 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.
 HELD in SC

▪ 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, can be exercised only if it so appears from the evidence at the
trial and not otherwise. Therefore, the 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.
▪ 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
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 these already sent up for trial by the prosecution.
▪ Section 319 covers the post-congnizance 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.
▪ 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.
▪ While as we are in agreement with the submission of the learned counsel for the
appellants that the stage of trial exercise of power under section 319 of the code had
not reached, in as much as,the trial had not commenced and evidence was not led
,since the court of session had the power under section 193 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, the court
don’t see no reason to interfere with the impugned order as it is well-settled that
once under it is found that the power exist the exercise of power under a wrong
provision will not render the order illegal or invalid.
 P. Gopalkrishnan@ Dileep v. The State of Kerala, Criminal Appeal No.
1794 of 2019, AIR 2020 SC 1

▪ FIR registered on 18.02.2017 alleging rape and related offences.

▪ Final police reports filed under Section 173 CrPC.
▪ The accused sought a cloned copy of a memory card (electronic evidence) from the
trial court.

▪ Magistrate rejected the application citing victim’s privacy.

▪ High Court affirmed, saying memory card is a material object and not a document
under Section 207 CrPC.

▪ Supreme Court appeal filed against these decisions.

 ISSUES

1. Whether the contents of a memory card or pen-drive are

“documents” under Section 3 of the Indian Evidence Act,
Section 29 IPC, and Section 2(1)(t) of the IT Act?

2. Whether an accused is entitled to a cloned copy of such

electronic records under Section 207 CrPC, even if it
involves sensitive content like video footage of sexual
assault?

3. Can the right of the accused to a fair trial override the

victim’s right to privacy and dignity in such cases?
 Petitioner (Accused Dileep)'s Arguments

• The memory card content is the most crucial evidence and

forms the basis of the prosecution’s case.

• Denial of a cloned copy violates the right to fair trial under

Article 21 of the Constitution.

• Visuals in the memory card may prove fabrication of

evidence.

• Defense needs the exact clone to perform scientific analysis

and voice verification.

• The video recording is a "document" under law and must

be provided as per Section 207 CrPC.
 Respondents' (State & Victim)
Arguments
• Memory card is a material object, not a document; hence
Section 207 does not apply.

• Supplying a cloned copy to the accused risks violation of

the victim’s privacy.

• The video contains graphic visuals of sexual assault;

misuse by accused is a genuine concern.

• Accused had already viewed the contents under court

supervision.

• Sharing a clone copy may amount to a separate offence

under the IT Act and IPC.
 JUDGMENT
▪ The Supreme Court allowed the appeal and held:
• Electronic records like memory cards and pen drives are “documents” under the Indian
Evidence Act, IT Act, and CrPC.
• Since the prosecution relies on this document, it must be furnished to the accused under Section
207 CrPC.
• Cloned copy must be provided, with appropriate safeguards to prevent misuse.
• Right to a fair trial (Article 21) is paramount, and denial of critical evidence to the accused is
unjustified.
• However, the Court permitted the trial court to impose necessary conditions to protect the identity
and dignity of the victim while furnishing the clone.
• Accused has a legal right to access all such documents, subject to conditions protecting victim’s
dignity.
• Balancing privacy of victim and right to fair trial of accused is key in sexual offence trials.
Framing of charges case
• Ss 234–251 (content of charges, their alteration, joinder,
etc.) and 510 (consequences of irregularities in framing
charges)
• Kamil v. State of UP, AIR 2019 SC 45
• State of Orissa v. Debendra Nath Padhi (2005) 1 SCC
568
 ▪ SECTION- 234-251 BNSS
CHARGES ▪ 510 BNSS
 Kamil v. State of UP, AIR 2019 SC
45
▪ Brief facts of the case are that on 03.01.1986 at about 09.00 AM, complainant-Baboo Khan (PW-3) who is
the maternal uncle of deceased Akhlaq was informed by his father that his sister’s daughter Parveen had gone
to fetch water from the tank where accused Rashid (A1) and Adil (A3) had misbehaved with her.

▪ On the same day, at around 04.00 PM, when complainant/PW-3 along with his nephew deceased Akhlaq
and Aadil Hussain (PW-2) were going towards his shop, they saw accused Rashid armed with knife, Nasir
(A2) armed with hockey, accused Adil and appellant-Kamil (A4) armed with danda in their hands coming
towards them and surrounded PW-1, deceased Akhlaq and PW-3.

▪ Thereafter, appellant- Kamil hit with danda on the head of PW-2 and when deceased Akhlaq tried to snatch
the hockey stick from accused Nasir, appellant-Kamil also hit with danda on the head of deceased from
behind and when he tried to run away, accused Nasir and Adil caught hold of deceased and thereafter accused
Rashid stabbed the knife in the chest of deceased on which deceased fell down on the ground with the knife
which was stabbed on his chest
▪ Charges were framed against all theaccused were under Sections 302, 302 read with Section
34, 323 and 323 read with Section 34 IPC. To bring home the guilt of the accused, the
prosecution examined eight witnesses and exhibited number of documents.

▪ Contention of the appellant is that charge under Section 302 IPC was not framed against him
and therefore the conviction of the appellant/accused under Section 302 IPC is not
maintainable.

▪ Contention of the appellant is that non-framing of charge under Section 302 IPC has caused
prejudice to him. It was further submitted that even though the question being a substantive
question, the appellant is at liberty to raise the same at any stage.
▪ Placing reliance upon Section 464 Cr.P.C., learned counsel appearing appearing for the
respondent-State submitted that a conviction would be valid even if there is any omission to
frame charge provided it has not occasioned a “failure of justice”.

▪ Taking us through the judgment of the trial court and the High Court, the learned counsel
submitted that the appellant was well-aware of the gist of charges under Section 302 IPC
against him and in fact the appellant has taken the “plea of alibi”.

▪ Section 464 of the Code relates to the effect of omission to frame, or absence of, or error, in
charge. Sub-section (1) thereof provides that no finding, sentence or order of a court of
competent jurisdiction shall be deemed invalid merely on the ground that no charge was
framed or on the ground of any error, omission or irregularity in the charge including
any misjoinder of charge, unless, in the opinion of the court of appeal, confirmation or
revision, a failure of justice has in fact been occasioned thereby.
▪ broad principles of justice and fair play must be brought to bear when
determining a matter of prejudice as in adjudging guilt.

▪ what we are concerned to see is whether the accused had a fair

trial, whether he knew what he was being tried for, whether the
main facts sought to be established against him were explained to
him fairly and clearly and whether he was given a full and fair
chance to defend himself. If all these elements are there and no
prejudice is shown, the conviction must stand whatever the
irregularities whether traceable to the charge or to a want of one
▪ The following principles relating to Sections 212, 215 and 464 of the Code,
relevant to this case, become evident from the said enunciations-

▪ 1) The object of framing a charge is to enable an accused to have a clear idea of

what he is being tried for and of the essential facts that he has to meet.

▪ 2) The accused is entitled to know with certainty and accuracy, the exact nature
of the charge against him, and unless he has such knowledge, his defence will
be prejudiced.

▪ 3) In judging a question of prejudice, as of guilt, the courts must act with a

broad vision and look to the substance and not to the technicalities, and their
main concern should be to see whether the accused had a fair trial, whether he
knew what he was being tried for, whether the main facts sought to be
established against him were explained to him fairly and clearly, and whether
he was given a full and fair chance to defend himself.
▪ The defect in framing of the charges must be so serious that it cannot
be covered under Sections 464/465 Cr.P.C, which provide that, an
order of sentence or conviction shall not be deemed to be invalid only
on the ground that no charge was framed, or that there was some
irregularity or omission or misjoinder of charges, unless the court
comes to the conclusion that there was also, as a consequence, a
failure of justice.

▪ As discussed above in our considered view, no prejudice has been

caused to the accused nor failure of justice has been shown to have
been occasioned warranting interference with the impugned
judgment.
 ▪ ISSUE: Can the trial court at the time of framing of
charge considers material filed by the accused, is the
point for determination in these matters.
▪ Satish Mehra vs. Delhi Administration was discussed,
two bench judgment: If accused is producing reliable
State of Orrisa material at the stage of cognizance or at the time of
vs. Debendra framing of charge it is unjust to suggest that no such
material should be looked at that stage.
nath ▪ Three judge bench division, overruled few two-judge
bench.
▪ Only after judge has filed case, he will hear accused
after framing of charges
▪ That finding is incorrect,
▪ 1- all the decisions, when they hold that there can only
be limited evaluation of materials and document on
record and shifting of evidence to prima facie find out
whether sufficient ground exist or not for the purpose of
proceeding further with the trial, have so held with
reference to materials and documents produced by the
prosecution and not the accused.
▪ The decision proceed on the basis of the settled legal
position that the matter as produced by the prosecution
alone is to be considered and not the one produced by
the accused.
▪ Only police report and documents with it should be
considered and nothing beyond that.
▪ Documents given by prosecution should be considered.
▪ Could lead to mini trial.
TRIAL
WHAT IS TRIAL?
TYPES OF TRIAL?

TRIAL BEFORE COURT OF SESSION TRIAL BEFORE MAGISTRATE- WARRANT

CASES & SUMMONS CASES
 TRIAL BEFORE A
COURT OF SESSION

SECTION 248- 258

 TRIAL OF WARRANT
CASES BY MAGISTRATE

SECTION 261- 272

 TRIAL OF SUMMONS
CASES BY MAGISTRATE

SECTION 274-280
 SEC. 316 RECORD OF EXAMINATION OF ACCUSED

• (1) Whenever the accused is examined by any Magistrate, or by a Court of Session, the
whole of such examination, including every question put to him and every answer given
by him, shall be recorded in full by the presiding Judge or Magistrate himself or where
he is unable to do so owing to a physical or other incapacity, under his direction and
superintendence by an officer of the Court appointed by him in this behalf.
• (2) The record shall, if practicable, be in the language in which the accused is examined
or, if that is not practicable, in the language of the Court.
• (3) The record shall be shown or read to the accused, or, if he does not understand the
language in which it is written, shall be interpreted to him in a language which he
understands, and he shall be at liberty to explain or add to his answers.
• (4) It shall thereafter be signed by the accused and by the Magistrate or
presiding Judge, who shall certify under his own hand that the examination was
taken in his presence and hearing and that the record contains a full and true
account of the statement made by the accused:
• Provided that where the accused is in custody and is examined through
electronic communication, his signature shall be taken within seventy-two hours
of such examination.
• (5) Nothing in this section shall be deemed to apply to the examination of an
accused person in the course of a summary trial.
SECTION 358- POWER TO PROCEED AGAINST OTHER PERSONS
APPEARING TO BE GUILTY OF OFFENCE.

• 1)Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not
being the accused has committed any offence for which such person could be tried together with the accused, the
Court may proceed against such person for the offence which he appears to have committed.
• (2)Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the
case may require, for the purpose aforesaid.
(3)Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court
for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
• (4)Where the Court proceeds against any person under sub-section (1), then-
• (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;
• (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused
person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.
 HARDEEP SINGH V STATE OF PUNJAB 2014

ISSUES
• Does the power of section 319 extend to person whose name has not been written in the
FIR?
• or the person has been named under FIR but has not been charged or the person was
charged but now discharged
 SUPREME COURT

• Section 319 Cr.P.C. allows the court to proceed against any person who is not an accused
in a case before it. Thus, the person against whom summons are issued in exercise of such
powers, has to necessarily not be an accused already facing trial. He can be a person whose
name has been disclosed in any material before the court that is to be considered for the
purpose of trying the offence, but not investigated. He has to be a person whose complicity
may be indicated and connected with the commission of the offence.
• In our opinion, Section 319 Cr.P.C. is an enabling provision empowering the court to take
appropriate steps for proceeding against any person not being an accused for also having
committed the offence under trial.
• At what stage 319 can be applied?
• after the filing of the charge-sheet, as the court frames the charges, the trial commences,
and therefore, the power under Section 319(1) Cr.P.C. can be exercised at any time after
the charge-sheet is filed and before the pronouncement of judgment
QUESTION

• What is the nature of satisfaction required to invoke the power under section 319 crpc to
arraign the accused?
• Whether the power under section 319 (1) crpc can be exercised only if the court is
satisfied that the accused summoned will in all likelihood convicted?
• Power under Section 319 Cr.P.C. is a discretionary and an extra- ordinary power. It is to
be exercised sparingly and only in those cases where the circumstances of the case so
demand.
• It is not to be exercised because the Magistrate or the Sessions Judge is of the
opinion that some other person may also be guilty of committing that offence.
• Only where strong and cogent evidence occurs against a person from the evidence led
before the court that such power should be exercised and not in a casual and cavalier
manner.
• In Section 319 Cr.P.C. the purpose of providing if ‘it appears from the evidence that any
person not being the accused has committed any offence’ is clear from the words “for
which such person could be tried together with the accused.” The words used are not ‘for
which such person could be convicted’.
• There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any
opinion as to the guilt of the accused.
• Not named in FIR, named in FIR but discharged.
• A person who has been discharged stands on a different footing than a person who was
never subjected to investigation or if subjected to, but not charge-sheeted.
• Such a person has stood the stage of inquiry before the court and upon judicial
examination of the material collected during investigation; the court had come to the
conclusion that there is not even a prima facie case to proceed against such person.
Generally, the stage of evidence in trial is merely proving the material collected during
investigation and therefore, there is not much change as regards the material existing
against the person so discharged. Therefore, there must exist compelling circumstances to
exercise such power.
SECTION 351- EXAMINATION OF ACCUSED

• 1)In every inquiry or trial, for the purpose of enabling the accused personally to explain
any circumstances appearing in the evidence against him, the Court-(a) may at any stage,
without previously warning the accused put such questions to him as the Court considers
necessary;(b) shall, after the witnesses for the prosecution have been examined and before
he is called on for his defence, question him generally on the case: Provided that in a
summons case, where the Court has dispensed with the personal attendance of the
accused, it may also dispense with his examination under clause (b).
• (2)No oath shall be administered to the accused when he is examined under sub-section
(1).
• (3)The accused shall not render himself liable to punishment by refusing to answer such
questions, or by giving false answers to them.
• (4)The answers given by the accused may be taken into consideration in such inquiry or
trial, and put in evidence for or against him in any other inquiry into, or trial for, any
other offence which such answers may tend to show he has committed.
• (5)The Court may take help of Prosecutor and Defence Counsel in preparing relevant
questions which are to be put to the accused and the Court may permit filing of written
statement by the accused as sufficient compliance of this section.
NAR SINGH V. STATE OF HARYANA 2015

ISSUE

• whether non- compliance of the mandatory provisions of Section 313 Cr.P.C. vitiates the
trial and conviction of the appellant.
• FACTS
Rajbir went to sleep in the street on a cot at about 7.30 p.m. and Daya Nand (PW-7) also
went to sleep in his house at about 9.00 p.m. At 11.00 P.M., Daya Nand heard the sound of
vomiting of his brother and he came out and found his brother Rajbir crying in pain. PW-7
called his father Chander Bhan and both of them noticed injuries on the forehead of Rajbir
with profuse bleeding. PW-7 went to call the doctor but the doctor refused to accompany
him. When Daya Nand returned back, Rajbir had already succumbed to injuries
• The appellant-accused was arrested on 14.03.2005 and based on his confession statement,
a pistol was recovered behind a water tank in the house of the appellant-accused. The
bullet (chambered for .315” & .303” caliber firearms) and country-made pistol (chambered
for .315” & .303” cartridges) were sent for the Ballistic Expert opinion. The Ballistic Expert
opined that the country-made bullet (chambered for .315” & .303” caliber firearms) had
been fired from the above-said country-made pistol and not from any other firearm. On
receipt of the Ballistic Expert opinion and on completion of the investigation, charge sheet
was filed against the appellant under Section 302 IPC, and Section 25(1B) of the Arms Act.
• To bring home the guilt of the accused, the prosecution has examined PWs 1 to 14 and
exhibited documents and material objects. Upon consideration of the evidence, trial court
convicted the appellant under Section 302 IPC and Section 25(1B) of the Arms Act and
sentenced him to undergo imprisonment as aforesaid.
• On appeal, the High Court affirmed the conviction for both the offences and imposed
sentence of imprisonment on the appellant. Being aggrieved, the appellant has preferred
this appeal by special leave.
ARGUMENTS IN SC

• 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.
• This provision is mandatory in nature and casts an imperative duty on the court and
confers a corresponding right on the accused to have an opportunity to offer an
explanation for such incriminatory material appearing against him. Circumstances which
were not put to the accused in his examination under Section 313 CrPC cannot be used
against him and have to be excluded from consideration.”
• What is the object of examination of an accused under Section 313 of the Code? The
section itself declares the object in explicit language that it is “for the purpose of enabling
the accused personally to explain any circumstances appearing in the evidence against him
• Thus, it is well settled that the provision is mainly intended to benefit the accused and as
its corollary to benefit the court in reaching the final conclusion.
• 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
• 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
ensure to the benefit of the accused.
• The matter is remitted back to the trial court for proceeding with the matter afresh from
the stage of recording statement of the accused under Section 313 Cr.P.C. The trial court
shall examine the accused afresh under Section 313 Cr.P.C. in the light of the above
observations and in accordance with law. The trial Judge is directed to marshal the
evidence on record and put specific and separate questions to the accused with regard to
incriminating evidence and circumstance and shall also afford an opportunity to the
accused to examine the defence witnesses, if any, and proceed with the matter.
• Since the occurrence is of the year 2005, we direct the trial court to expedite the matter
and dispose of the same in accordance with law preferably within a period of six months
from the date of receipt of this judgment. Since we are 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
• We make it clear that we have not expressed any opinion on the merits of the matter.
 SUKHPAL SINGH KHAIRA V. STATE OF
PUNJAB (2022) 10 SCR 156

• On 05.03.2015 a First Information Report was lodged in the Police Station Sadar, Jalalabad against 11 accused for the offence
under Sections 21, 24, 25, 27, 28, 29 and 30 of Narcotic Drugs and Psychotropic Substance Act, 1985 (‘NDPS’ for short), Section
25-A of Arms Act and Section 66 of the Information Technology Act, 2000 (‘IT Act’ for short).
• In the charge sheet dated 06.09.2015, 10 accused were summoned and put to trial in Sessions Case No. 289 of 2015. Though the
second charge sheet was filed by the police, the same did not name the appellant herein as an accused.
• In the trial conducted before the learned Sessions Judge also, initially the name of the appellant was not mentioned by the
witnesses. After the initial recording of evidence, the prosecution filed an application dated 31.07.2017 under Section 311 of CrPC
for recalling PW-4 and PW-5, which was allowed. In the further examination of the said recalled witnesses, they named the
appellant herein. The prosecution thereafter filed an application on 21.09.2017 invoking Section 319 of CrPC in the said Sessions
Case No.289 of 2015 for summoning additional 5 accused, including the appellant herein. The summoning of additional accused
was sought based on the evidence tendered by PW-4, PW-5 and PW-13.
• It is to be noted that out of the 11 accused, the proceedings in Sessions Case No.289 of 2015
were against the 10 accused and since one of the accused was not available, the case in that
regard was split up (bifurcated) and was subsequently numbered as Sessions Case No.217 of
2019 on 03.09.2019.
• In that background, it is seen that as on the date when the application under Section 319 CrPC
was filed on 21.09.2017, the only proceeding pending was Sessions Case No.289 of 2015. In
that regard, in respect of the proceedings against the 10 accused, the learned Sessions Judge
pronounced the judgment on 31.10.2017 whereby one of the accused was acquitted, while the
remaining 9 accused were convicted and sentence was imposed on 31.10.2017
• The learned Sessions Judge, also allowed the application filed under Section 319 of CrPC
on the same day i.e., 31.10.2017 and summoned the appellant to face trial. It is in that
backdrop the appellant assailed the order dated 31.10.2017 summoning him to face trial,
since according to him such order is not sustainable in law as the same was not passed in a
proceeding pending before the learned Sessions Court as at the stage when the power to
summon was exercised by learned Sessions Judge, the judgment of conviction and sentence
had already been passed earlier on 31.10.2017. The said order assailed in Revision Petition
No.4070 and 4113 of 2017 was dismissed by the High Court, which has led to the present
proceedings.
ISSUES

• Whether the trial court has the power under Section 319 of CrPC for summoning
additional accused when the trial with respect to other co- accused has ended and the
judgment of conviction rendered on the same date before pronouncing the summoning
order?
• What are the guidelines that the competent court must follow while exercising power
under Section 319 CrPC?
CONTENTION PUT FORTH BY SHRI P.S. PATWALIA,
LEARNED SENIOR COUNSEL FROM APPELLANT-

• Order summoning a person (appellant herein) as an accused under Section 319 of CrPC was passed at a stage when the trial had
already concluded and even judgment and order on sentence had been pronounced.

• It is contended that the said order is, therefore in violation of Section 319 of CrPC and Hardeep Singh wherein in Para 47 it was
held that power has to be exercised before pronouncement of judgment.

• It can only be exercised during the pendency of the trial, which is a stage anterior to the date of pronouncement of judgment.

• In fact this is also consistent with Section 353(1) of CrPC, which states that after perusal of the evidence, the judgment is to be
pronounced after termination of trial, and therefore, Section 319 of CrPC mandates that the power can be exercised only during
trial and it follows that once trial is concluded and judgment is pronounced, the Court cannot exercise power under Section 319 of
CrPC at that stage.

• In a nutshell, if an accused is to be summoned, it has to be done when the trial is alive. The moment trial is concluded and the
matter is kept for judgment, then the stage for exercising power under Section 319 of CrPC goes and the Court thereafter becomes
functus officio.
CONTENTIONS PUT FORTH BY SHRI VINOD GHAI,
LEARNED ADVOCATE GENERAL FOR THE STATE OF
PUNJAB

• The intent behind the legislature in introducing Section 319 of CrPC is to check that no
culprit should go scot-free and to bring home the guilt of actual accused
• It is in this context that the Courts have been empowered to summon any person, who
appears to have committed an offence, for which the already charge-sheeted accused are
facing trial.
• Giving a narrow interpretation to such a provision and putting unwarranted restrictions
would circumvent the very purpose of this power and would only result in travesty of
justice.
SC

• The power under Section 319 of CrPC is to 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. If the order is passed on the same day, it will have to be
examined on the facts and circumstances of each case and if such summoning order is
passed either after the order of acquittal or imposing sentence in the case of conviction, the
same will not be sustainable.
 GUIDELINES THAT THE COMPETENT COURT MUST
FOLLOW WHILE EXERCISING POWE UNDER SECTION
319 CRPC?

• If the competent court finds evidence or if application under Section 319 of 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.
• The Court shall thereupon first decide the need or otherwise to summon the additional accused and pass orders
thereon.
• If the decision of the court is to exercise the power under Section 319 of CrPC and summon the accused, such
summoning order shall be passed before proceeding further with the trial in the main case
• If the summoning order of additional accused is passed, depending on the stage at which it is passed, the Court
shall also apply its mind to the fact as to whether such summoned accused is to be tried along with the other
accused or separately.
• If the decision is for joint trial, the fresh trial shall be commenced only after securing the presence of the
summoned accused.
• If the decision is that the summoned accused can be tried separately, on such 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.

• If the proceeding paused as in (i) above is in a case where the accused who were tried are to be acquitted and the decision is that the
summoned accused can be tried afresh separately, there will be no impediment to pass the judgment of acquittal in the main case.

• If the power is not invoked or exercised in the main trial till its conclusion and if there is a split-up (bifurcated) case, the power
under Section 319 of CrPC can be invoked or exercised only if there is evidence to that effect, pointing to the involvement of the additional
accused to be summoned in the split up (bifurcated) trial.

• If, after arguments are heard and the case is reserved for judgment the occasion arises for the Court to invoke and exercise the power
under Section 319 of CrPC, the appropriate course for the court is to set it down for re-hearing.

• On setting it down for re-hearing, the above laid down procedure to decide about summoning;holding of joint trial or otherwise shall be
decided and proceeded with accordingly

• Even in such a case, at that stage, if the decision is to summon additional accused and hold a joint trial the trial shall be conducted afresh and
de novo proceedings be held.
• If, in that circumstance, the decision is to hold a separate trial in case of the summoned
accused as indicated earlier;
• (a) The main case may be decided by pronouncing the conviction and sentence and then
proceed afresh against summoned accused.
• (b) In the case of acquittal the order shall be passed to that effect in the main case and then
proceed afresh against summoned accused.
TRIAL AND JUDGMENTS
TRIAL AND JUDGMENT

• 337 (double jeopardy),

• 346 (adjournments),
• 348 (independent witnesses and recall),
• 353 (accused as Witness),
• 398 (witness protection scheme),
• 530 (electronic modes for trial and other procedures),
• 392–393
• 404 (rules regarding judgments), and
• 407–409 (confirmation of death sentences)
• – Ss 403 (review),
• 413,
• 415–416,
• 418–419
• 438, 440 and 442 (revision),
• and 427 (appeals)
Review:
• A review is a process where the same court that made the initial decision reconsider it,
often based on newly discovered evidence or material facts.
• It's not a statutory right, and the court has discretion on whether to grant a review.
• A review is distinct from an appeal or revision because it's not a request to a higher
court, but rather a reconsideration by the original court.
Revision:
• Revision involves a higher court examining the actions of a lower court to ensure they
were within the bounds of legal authority.
• It's a discretionary power, meaning the higher court decides whether to review the lower
court's decision.
• The purpose of revision is to ensure that justice is being administered correctly and to
correct any errors that may have led to an improper outcome.
• Unlike appeals, revision is not a right, and the higher court is not obligated to review the
lower court's decision.
Appeal:
• An appeal is a request to a higher court to review a lower court's decision, potentially
leading to its reversal.
• It's a statutory right, meaning a person has the legal right to appeal.
• In appeals, the higher court can examine both legal and factual issues.
• In criminal cases, an appeal is typically against conviction or sentence.