CRIMINAL PRACTICE SEMINAR

I. Cognizance 4
Chief Enforcement Officer v Videocon International Ltd. (SC) 4
Rahul Builders v Arihant Fertilizers & Chemicals (SC) 5
Joseph Sartho v. G Gopinathan (Ker HC) 5
II. Challenging Summons 6
K.M. Mathew v. State of Kerala (SC) 6
Adalat Prasad v Rooplal Jindal (SC) [+ Subramanian Sethuraman] 7
Bhushan Kumar v State [NCT of Delhi] (SC) [+ Court on Its Own Motion, SK Bhalla] 9
VK Jain v Pratap Padode (Delhi HC) [+ Aroon Purie, Urmila Devi] 10
III. Registration of FIR 11
Rajni Palriwala v D Mohan 11
Lalita Kumari v. Govt. of U.P (SC) 11
IV. Magistrate’s Power to Order Investigation 13
Skipper Beverages Pvt. Ltd. v. State (Delhi HC) [+ Shubhkaran Lahurka, Amit Khera, Mohd.
Yousuf, and Paradise Credit] 13
V. Bail and Arrest 17
The Court on its own motion v State 17
DK Basu v State of West Bengal 17
Arnesh Kumar v State of Bihar 19
Gurubaksh Singh Sibbia v State of Punjab 1980 SC 20
Motiram v State of MP (SC) 20
Sanjay Chandra v CBI (SC) 21
State of Maharashtra v. Buddhikota S. Rao 21
Siddharam Satlingappa Mhetre v. State of Maharashtra 22
Sushila Aggarwal v. State (NCT of Delhi) 24
Munawar v State of Madhya Pradesh 2021 SC 26
Santosh v State of Maharashtra 2017 SC 26
Navendu Babbar v GNCTD 2020 DHC 27
Satender Kumar Antil v. CBI (Order) 29
Puran v Rambilas 2001 SC 30

1
 State v Gangi Reddy 2023 SC 31
VI. Production of document - s91 CrPC 32
Gayatri Bais v State of MP 1998 MP HC 32
Pawan Duggal v State 2001 DHC 33
Neelesh Jain v State of Rajasthan 2006 Raj HC 34
Arun Kumar Aggarwal v Prasar Bharti 2000 Del HC 35
VIII. Further Investigation/Supplementary Charge sheet u/s 173(8) 36
Hemant Dhasmana v CBI 2001 SC 36
M/s India Carat Pvt Ltd v State of Karnataka 1989 SC 37
Abhinandan Jha v Dinesh Mishra 1967 SC 37
Ajay Khandelwal v State 2003 DHC 38
Nallakannu v State 2007 Mad HC 38
Vinubhai Haribhai Malaviya v State of Gujarat 2019 SC 39
IX. 313 Examination 39
Sharad Birdhi Chand Sarda vs State Of Maharashtra 40
United Phosphorus Ltd. v. Sunita Narain 40
X. Revision, Appeal, Quashing 42
KK Patel v. Gujarat 42
Krishnan v. Krishnaveni 43
State of Haryana v. Bhajanlal 44
Zandu Pharmaceuticals v. Mohd. Sharaful Haq 45
Chandrappa v. State of Karnataka 46
A&B v. State 47
XI. Discharge 47
Ajoy K. Ghose v. St. of Jharkhand, (2009) 14 SCC 115 47
St. of Orissa v. Debendra Nath, (2005) 1 SCC 568 49
All Cargo Movers v. Dhanesh Badarmal Jain 51
Suryalakshmi Cotton Mills v. Rajvir Industries Ltd. 52
XII. Abatement/Substitution of Complainant on Death 53
Tripuraneni S. Prasad v. St. of AP, 2006 SCC OnLine AP 96 53
Ashok Kumar v. Abdul Latif, 1989 SCC OnLine J&K 29 54

2
 Kaushal Talukdar v. Chandra Goenka, 2004 SCC OnLine Gau 130 55
Rashida K. Syed v. Shaikh S. Mardan, (2007) 3 SCC 56
XIII. Quashing of Proceedings by High Court 57
Rajiv Thapar v. Madan Lal Kapoor 57
Ahmad Ali Quraishi v. State of UP 59
State of Haryana v. Bhajan Lal 60
XVI. Special Statutes 62
NIA v. Zahoor Ahmad Shah Watali (Supreme Court) 63
Ranjitsing Brahmajeetsingh Sharma v. State of Maharashtra & Anr. 65
Vernon v. State of Maharashtra 2023 SCC OnLine SC 885 68
Sudesh Kedia v. UOI 77
Union of India v. K.A. Najeeb, (2021) 3 SCC 713 78
Thwaha v UOI, 2021 SCC OnLine SC 1000 81

3
I. Cognizance
S. 190, Criminal Procedure Code 1973

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 which constitute such offence;

b) upon a police report 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.
2) 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.
S. 177, Criminal Procedure Code 1973
Every offence shall ordinarily be inquired inland tried by a Court within whose local
jurisdiction it was committed.1

Chief Enforcement Officer v Videocon International Ltd. (SC)

Context: A case under the Foreign Exchange Regulation Act was initiated against the
respondent, for which the process was issued two years after taking cognizance, after the period
of limitation. The respondent argued that cognizance of a case is taken only after process is
issued, and since this happened after expiry of limitation, the case against the respondent cannot
proceed and deserves to be quashed.
Offences Involved: Section 40, Foreign Exchange Regulation Act.

1
Cf. S. 20 CPC: Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of
whose jurisdiction-
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the
suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit actually and
voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of
the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as
aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.

4
Held: Cognizance refers to the act of taking notice judicially and does not involve formal action
of any kind. It takes place at the stage of ‘initiation’ of legal proceedings, as distinct from
‘commencement’ of proceedings.

Rahul Builders v Arihant Fertilizers & Chemicals (SC)

Facts/ Contexts: The High Court quashed the appellants case under S. 138 of the Negotiable
Instruments Act as the notice served by the appellant was not for the period of 15 days. The
notice sent by the appellant did not mention the full amount of the cheque, but instead, only a
partial amount due from the respondent. The SC was asked to determine whether an improper
notice u/s 138 NIA would lead to the quashing of a case altogether.
Offences Involved: S. 138, Negotiable Instruments Act 1882.
Held: A case with an improper notice would not be maintainable. However, it was clarified that
s. 138 NIA does not envision a 15 days notice but, instead, a notice within 15 days of default.
POINT: The case was taught to illustrate the stark difference in civil and criminal proceedings.
A criminal case is liable to be quashed as criminal statutes are to be read strictly. However, in
civil law, an improper notice which does not clearly specify the amount would not lead to the
quashing of proceedings. In this case, because the notice in question did not specify the complete
amount of the cheque, it was dismissed.

Joseph Sartho v. G Gopinathan (Ker HC)

Context: The respondent had made part payment of the debt owed by him to the complainant.
For the remaining amount, he paid a cheque for the complete amount of the debt which was
dishonored. Upon dishonor, the complainant initiated proceedings under s. 138 of the NI Act,
1882.
Held: The SC held that once part payment on debt had been made, and the cheque concerned
was for the complete amount of the debt, then in case of overdue no case lies as a case under s.
138 is only available for outstanding debt.
POINT: The case was taught to illustrate that criminal law generally avoids criminalisation of
conduct and proceeds on a harm-based standard. Mere immoral conduct not resulting in harm is
generally not criminalised. Further spoke about the strict interpretation of criminal provisions
that require absolute satisfaction of all elements.

5
II. Challenging Summons
K.M. Mathew v. State of Kerala (SC)
Facts: KM Mathews is the Chief Editor of a Magazine sued for defamation. The Magistrate
issued process against him. However, before evidence was adduced, he asked the Court to drop
the charges against him as no case was made out as against him since he had no role in selecting
articles for publication. The Magistrate dropped proceedings against KM Mathews, but the High
Court reversed the Magistrate on revision.
Offences Involved: 500, Indian Penal Code 1860.

Held: The Magistrate has the power to drop proceedings if there is no case made out against an
accused as the order of issue of process is an interim order and, thus, it can be varied or recalled.
No specific provision is required for the power to drop proceedings.
Extracts:

7. The High Court seems to be too technical in this regard. If one reads carefully the
provisions relating to trial of summons cases, the power to drop proceedings against the
accused cannot be denied to the Magistrate. Section 204 of the Code indicates that the
proceedings before the Magistrate commences upon taking cognizance of the offence and
the issue of summons to the accused. When the accused enters appearance in response to
the summons, the Magistrate has to take proceedings under Chapter XX of the Code. But
the need to try the accused arises when there is allegation in the complaint that the
accused has committed the crime. If there is no allegation in the complaint involving the
accused in the commission of the crime, it is implied that the Magistrate has no
jurisdiction to proceed against the accused.
8. It is open to the accused to plead before the Magistrate that the process against him
ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied
on reconsideration of the complaint that there is no offence for which the accused could
be tried. It is his judicial discretion. No specific provision is required for the Magistrate to
drop the proceedings or rescind the process. The order issuing the process is an interim
order and not a judgment. It can be varied or recalled. The fact that the process has
already been issued is no bar to drop the proceedings if the complaint on the very face of
it does not disclose any offence against the accused.

6
POINT: The consequence of this decision was that all orders of issue of process were
challenged. At the same time, there is no order that prohibits recalling of an interim order (as
against S. 362, CrPC which prohibits recall of “judgement or final order disposing of a case.”

Adalat Prasad v Rooplal Jindal (SC) [+ Subramanian Sethuraman]

Facts: Case on ac private complaint for cheating and defrauding. This was a warrants trial where
the SC was asked to decide if the Trial Court has the power to recall summons. This was a case
instituted on a complaint, where after the issue of process, the accused filed an application for
recall of process under S. 203, CrPC. The holding in KM Mathews was challenged directly.
Held: KM Mathew was incorrectly decided, and in the absence of a specific provision, an order
of issue of process cannot be recalled by the Magistrate. Further, S. 203 cannot be invoked after
the issue of process as S. 203 is chronologically envisioned to precede the issue of process under
the CrPC.
Extracts:
14. But after taking cognizance of the complaint and examining the complainant and the
witnesses, if he is satisfied that there is sufficient ground to proceed with the complaint
he can issue the process by way of summons under Section 204 of the Code. Therefore,
what is necessary or a condition precedent for issuing process under Section 204 is the
satisfaction of the Magistrate either by examination of the complainant and the witnesses
or by the inquiry contemplated under Section 202 that there is sufficient ground for
proceeding with the complaint hence issue the process under Section 204 of the Code. In
none of these stages the Code has provided for hearing the summoned accused, for
obvious reasons because this is only a preliminary stage and the stage of hearing of the
accused would only arise at a subsequent stage provided for in the latter provision in the
Code. It is true as held by this Court in Mathew case [(1992) 1 SCC 217 : 1992 SCC (Cri)
88] that before issuance of summons the Magistrate should be satisfied that there is
sufficient ground for proceeding with the complaint but that satisfaction is to be arrived at
by the inquiry conducted by him as contemplated under Sections 200 and 202, and the
only stage of dismissal of the complaint arises under Section 203 of the Code at which
stage the accused has no role to play, therefore, the question of the accused on receipt of
summons approaching the court and making an application for dismissal of the complaint
under Section 203 of the Code on a reconsideration of the material available on record is
impermissible because by then Section 203 is already over and the Magistrate has
proceeded further to Section 204 stage.
15. It is true that if a Magistrate takes cognizance of an offence, issues process without
there being any allegation against the accused or any material implicating the accused or
in contravention of provisions of Sections 200 and 202, the order of the Magistrate may
be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by
invoking

7
 Section 203 of the Code because the Criminal Procedure Code does not contemplate a
review of an order. Hence in the absence of any review power or inherent power with the
subordinate criminal courts, the remedy lies in invoking Section 482 of the Code.
16. Therefore, in our opinion the observation of this Court in the case of Mathew [(1992)
1 SCC 217 : 1992 SCC (Cri) 88] that for recalling an erroneous order of issuance of
process, no specific provision of law is required, would run counter to the scheme of the
Code which has not provided for review and prohibits interference at interlocutory stages.
Therefore, we are of the opinion, that the view of this Court in Mathew case [(1992) 1
SCC 217 : 1992 SCC (Cri) 88] that no specific provision is required for recalling an
erroneous order, amounting to one without jurisdiction, does not lay down the correct
law.
POINT:
1. Interestingly, in Mathew no specific section was pleaded under to recall summons.
Whereas in Adalat Prasad specifically
2. In Mathew, there was a summons trial, whereas in Adalat Prasad, there was a warrants
trial. Does this fact make a difference to the determination?
a. No, since neither S. 203 nor S. 204 differentiates between summons and warrants
cases. If it was a case instituted on the Police report, then it does not matter as
there is an opportunity to argue on charge.2
3. Is there a reason why in some cases you can argue on charge and in others you cannot?
When you have a summons trial – NC offense – or warrants otherwise on police report –
you have 200-204 process. Judicial application of mind has taken and evidence is
recorded judicially. Whereas police report is fully executive and requires application of
judicial mind. 200-204 is far more robust whereas a chargesheet which has 161 and 164
statements.
4. In Subramanian Sethuraman v State of Maharastra [section 138 NI Act summons case],
the correctness of Adalat Prasad was challenged. The case followed the same trajectory
as Adalat Prasad. There was an argument made that the impugned case ignored the
distinction between summons/ warrants cases, and therefore, it was wrongly decided.
Reconsideration rejected. The court re-emphasises that the holding in Adalat Prasad is
grounded in there being a lack of provision for recall which does not change with the
nature of the trial. [para 14-15]
5. Subramanian Sethuraman held that the only remedy against the incorrect issue of process
that is available is a petition under S. 482, CrPC since they proceed on the assumption
that these orders are interim in nature. [para 17] Adalat Prasad leaves this question open
to be decide din the future but does state that the remedy lies in section 482.

8
2
What about summons cases under S. 251? Is there an opportunity there?

9
 6. Importantly, Sethuraman still construes section 204 as an interlocutory order. It also
notes that once plea is recorded in a summons case under section 252, it is not open for
the accused to seek discharge and the trial must be taken to its logical conclusion. [para
16]

Bhushan Kumar v State [NCT of Delhi] (SC) [+ Court on Its Own

Motion, SK Bhalla]
Context: The accused challenged the order issuing summons on the ground that there were no
reasons provided. The case was a warrants case on a Police report. The SC was asked to
determine
(a) the difference between cognizance and process and (b) the need for reasons while issuing
summons.
Held: The difference between cognizance and proces is that the former concerns taking notice of
a case, whereas the latter concerns the connection between the offence and specific persons who
are to be issued notice for further proceedings. Thus, after issue of process, the accused enters
appearance before the Court.
Extracts:
20. It is inherent in Section 251 of the Code that when an accused appears before the trial
court pursuant to summons issued under Section 204 of the Code in a summons trial case,
it is the bounden duty of the trial court to carefully go through the allegations made in the
charge-sheet or complaint and consider the evidence to come to a conclusion whether or
not, commission of any offence is disclosed and if the answer is in the affirmative, the
Magistrate shall explain the substance of the accusation to the accused and ask him
whether he pleads guilty otherwise, he is bound to discharge the accused as per Section
239 of the Code.

POINT:
1. If the reasoning here, in part, was to avoid burden on TCs, then all the Court does is shift
the burden on the HC as summons are still challenged, and eventually, the HC is required
to adjudicate on them.
2. If there is no reason provided, how can a person challenge it properly under revision/
inherent powers of the HC? In practice, thus, most Courts have begun providing some
minimal reasoning. Since S. 203 orders are final orders, they often have more reasoning
even though both S. 203 and S. 204 orders require the same threshold: “sufficient ground
for” proceeding/ not proceeding.
3. The observation concerning S. 251 is out of place as this was a warrants case, whereas S.
251 is concerned with Summons trial before a Magistrate. In any case, S. 251 does not
allow for arguing on charge! In sum, this case is per incuriam Adalat Prasad/ Sethuraman

10
 as these cases explicitly held that in the absence of explicit provision, there is no option
to recall/ discharge/ not proceed ahead.
4. In Court on Its Own Motion, a reference in the context of summary cases, the Delhi HC
held that “...the TC cannot be confierred with inherent powers, either to review of recall
the order of issue of process.” The case dealt discharging of section 138 NI Act
complaints under section 258 CrPC without going through the process of trial. It held
section 258 cannot be resorted to give magistrates power to in effect recall summons. The
Court reiterated Adalat Prasad and Sethuraman.
5. However, note that the Delhi HC in SK Bhalla has held that under S. 251, the TC does
look into whether a case has been made out against the accused, and only if there is a
triabl offence made out, are the charges read out to the accused. Nonetheless, the decision
in Court on Its Own Motion was by a division bench and Bhalla was a single judge case.
Therefore, the former would be binding law as per Trideep and Sanya.3
6. Interestingly, SK Bhalla was a case under section 509 IPC which is punishable with upto
3 years imprisonment making it a warrant-case so any observations under section 251
(summons case) are out of place as well. It in essence differentiated itself from Adalat
Prasad and Sethuraman by holding that they dealt with section 203 whereas it is dealing
with section 251 and the magistrate only has jurisdiction to proceed with section 251 if
particulars of the offense are made out. [para 14-15]4

VK Jain v Pratap Padode (Delhi HC) [+ Aroon Purie, Urmila Devi]

Context: The petitioner had sought quashing of the summons against him under S. 482, CrPC.
The Court was asked to decide if there is an alternate and effective remedy. The Court noted the
holding in Sethuraman and Adalat Prasad, and held that those cases concerned the Magistrate’s
power to recall, and thus, do not bar an application in revision against an order of issue of
process. [para 8, 10] The DHC cites the decision of the SC in Madhu Limaye to hold that an
order issuing process is not an interlocutory order, and therefore, revision can be approached
against it. It qualifies it as an intermediary or quasi-final order. The test laid down for deciding
whether an order is intermediate or final is if the contentions of the person challenging the order
are upheld would it bring an end to the proceedings.

The Court further holds that an order under section 204 should not ordinarily be challeged via
section 482 as there exists an alternate efficacious remedy specifically in the CrPC which is

3
There is some grey area here since Court on Its Own Motion is concerned with S. 204 recalls, where S. 251 is a
distinct stage as compared to issue of process, and therefore, it is not touched upon in the case. Thus, there is an
open question over whether the case touches upon S. 251. TBD.
4
“How can magistrate read out the particulars of a non-existent offense” is the court’s reasoning.

11
revision under section 392 (again relying on Madhu Limaye). [Para 25] The accompanying writ
petition was also dismissed on grounds of alternate efficacious remedy.
However, in the case of Aroon Poorie v. Jayakumar Hirematha and Urmila Devi v Yudhvir
Singh, the Supreme Court has held that an order for issue of summons can be challenged either
under revision or through the route under S. 482, CrPC. These cases also clarify that a S. 204
order is not an interlocutory order but an intermediary one.
In sum: VK Jain is wrong so far as it restricts the challenge to only though Session Court’s
revisional jurisdiction. An order issuing process can be challenged either under S. 482 or under
S. 397 (revision).5

III. Registration of FIR

Rajni Palriwala v D Mohan
Point: Any order under section 156(3) necessarily requires the police to register an FIR before
proceedings with investigation even if the order does not explcitly ask for registration of an FIR.
There is no such thing as a status report other than a report on an investigation under section 173
prior to registration of an FIR. [Para 11]
It seems like from this that the power to investigate under section 156-157 is only triggered in
case an FIR is registered under section 154.

Lalita Kumari v. Govt. of U.P (SC)

Trideep and Sanya are of the opinion that the decision in Lalita Kumari was unnecessary in light
of the exact same holding in Bhajan Lal. Nonetheless, the extracts introduced certain important
limitations on the mandatory registration requirement.
Extracts:
120. In view of the aforesaid discussion, we hold:

120.1. The registration of FIR is mandatory under Section 154 of the Code, if the
information discloses commission of a cognizable offence and no preliminary inquiry is
permissible in such a situation.
120.2. 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.

5
It holds the field and is the law. The DHC does routinely exercise section 482 without a revision but they said that
it strategically does make more sense to go under revision before as that gives you another opportunity to challenge
the revision order under section 482.

12
120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be
registered. In cases where preliminary inquiry ends in closing the complaint, a copy of
the entry of such closure must be supplied to the first informant forthwith and not later
than one week. It must disclose reasons in brief for closing the complaint and not
proceeding further.
120.4. The police officer cannot avoid his duty of registering offence if cognizable
offence is disclosed. Action must be taken against erring officers who do not register the
FIR if information received by him discloses a cognizable offence.
120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the
information received but only to ascertain whether the information reveals any
cognizable offence.
120.6. As to what type and in which cases preliminary inquiry is to be conducted will
depend on the facts and circumstances of each case. The category of cases in which
preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) 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.
The aforesaid are only illustrations and not exhaustive of all conditions which may
warrant preliminary inquiry.
120.7. While ensuring and protecting the rights of the accused and the complainant, a
preliminary inquiry should be made time-bound and in any case it should not exceed 7
days. The fact of such delay and the causes of it must be reflected in the General Diary
entry.

13
IV. Magistrate’s Power to Order Investigation
Skipper Beverages Pvt. Ltd. v. State (Delhi HC) [+ Shubhkaran
Lahurka, Amit Khera, Mohd. Yousuf, and Paradise Credit]
Held: The Magistrate should only issue an order to investigate under S. 156(3) if he is satisfied
that the complainant may not be in a position to collect and produce evidence before the Court
and the interest of justice demands so.
Extracts:
7. It is true that Section 156(3) of the Code empowers a Magistrate to direct the police to
register a case and initiate investigations but this power has to be exercised judiciously on
proper grounds and not in a mechanical manner. In those cases where the allegations are
not very serious and the complaint himself is in possession of evidence to prove his
allegations there should be no need to pass orders under Section 156(3) of the Code. The
discretion ought to be exercised after proper application of mind and only in those
cases where the Magistrate is of the view that the nature of the allegations is such
that the complaint himself may not be in a position to collect and produce evidence
before the Court and interests of justice demand that the police should step in to
help the complaint. The police assistance can be taken by a Magistrate even under Sec.
202(1) of the Code after taking cognizance and proceeding with the complaint under
Chapter XV of the Code as held by Apex Court in 2001 (1) Supreme page 129 titled
“Suresh Chand Jain
v. State of Madhya Pradesh & Ors.”
POINT:

1. First, in holding that the determination needs to be made on the basis of seriousness of
the offence, the Court created law that does not exist on the statute books as the CrPC and
the IPC already undertake determinations of seriousness of offences. There is already a
disitnction between cognizable and non-cognizable, and any further classification makes
no sense. Both Bhajan Lal and Lalita Kumari have held that registration is mandatory.
2. Second, even in the present case, the Court held that since it is a cheque forgery and theft
case, the resources of the police need not be employed. However, even in such cases,
there may be need for forensic evidence, expert determination, etc. There are
considerable expectations from private parties in this reasoning that are unrealistic. There
may also be unknown accused. In effect, the Court has laid down evidentiary
requirements at the stage of S. 156(3).
3. Third the court notes that an alternative is also available under section 202 where police
assistance can be taken. This is mistaken as the purpose of 202 is not to investigate and
collect evidence but to be sure of what is said in the complaint. Nevertheless, the duty on

14
 a magistrate under section 156(3) is higher than on a police officer, a step beyond just the
information disclosing a cognizable offense.
4. See also Shubhkaran Lahurka v State, which holds similarly. Extracts:
42. Thus, there are pre-requisites to be followed by the complainant before
approaching the Magistrate under Section 156(3) of the Code which is a
discretionary remedy as the provision proceeds with the word „May‟. The
magistrate is required to exercise his mind while doing so. He should pass orders
only if he is satisfied that the information reveals commission of cognizable
offences and also about necessity of police investigation for digging out of
evidence neither in possession of the complainant nor can be procured without the
assistance of the police. It is thus not necessary that in every case where a
complaint has been filed under Section 200 of the Code the Magistrate should
direct the Police to investigate the crime merely because an application has also
been filed under Section 156(3) if the Code even though the evidence to be led by
the complainant is in his possession or can be produced by summoning witnesses,
may be with the assistance of the court or otherwise. The issue of jurisdiction also
becomes important at that stage and cannot be ignored.
The Court goes on to further cement the distinction between cognizable offences
evidence for which is in the complainant’s control (for which a section 156(3) order need
not be passed) versus cognizabe offences outside the complainant’s contro (for which a
section 156(3) order should be passed). The basic issue remains - where is this distinction
in the CrPC?
5. In Lahuraka, the Court compared S. 156(3) to S. 202 and noted that the latter had more
safeguards as the Magistrate was supposed to record statements and evidence before
proceeding under 202. However, this is not a fair comparison as the 202 is for the
satisfaction of the Magistrate over whether to proceed under S. 203 or 204, and further,
the Police acts only as a delegate of the Magistrate and cannot arrest in such cases. The
two powers are not similar. The court also notes that the magistrate can call for a status
report on an investigation in case an FIR has previously been registered to decide whether
to proceed under Chapter XII or Chapter XV.
6. However, the Delhi HC did not employ the ‘evidence’ related standard in Amit Khera v
State (NCT of Delhi). The Court held that unless the Magistrate is of the opinion that no
cognizable offence is made out, he cannot reject the 156(3) application. The Court
reasoned

15
 that it is the duty of the police to not only investigate offfences, but also to take action as
per law.6 See extract:
4. Section 200 Cr.P.C requires a Magistrate to take cognizance of an offence on a
complaint. When a complaint is made before the Magistrate, the Magistrate has to
examine the complainant and other witnesses present, on oath and he has to
record the substance of such examination and ask the complainant and witnesses
to sign the same. However, a complaint can be made before the learned MM
orally as well as in writing. Thus, when a complainant approached the Court
with an application under Section 156(3) Cr.P.C with specific allegations that
his report was not being registered by the police and the police was not
acting, the Magistrate could not have sent back the person, unless the
Magistrate had come to the conclusion that from the complaint, no
cognizable offence was made out. The reasons given by the Court of MM and
upheld by the Court of ASJ for not acting on the application of the petitioner are
bereft of any logic. On receipt of a complaint, the duty of the police is not only
to do scientific investigation and make recoveries, it has to take action
against the offenders as per law. The investigation is done by police even by
the recording statements of witnesses. Moreover, in the present case, the
petitioner was having only the phone number of the caller and police had
resources to find out the name of the caller and other particulars of the caller by
approaching service providers, which the petitioner himself could not have done.
I, therefore, consider that the learned MM went wrong in observing that no FIR
was required to be registered since no scientific investigation/ recovery needed to
be done.
7. In Paradise Credit the Trial Court had called for a status report but before receiving it
declined the petitioner’s section 156(3) application. The DHC disapproved of this and
said that the magistrate should wait for the status report before deciding section 156(3) on
merits. The counsel for the accused had raised the argument that evidence is in control of
the petitioner but the DHC was hesitant to accept the argument. It finally passes no
comment on the issue.
8. In Mohd. Yousuf’s case it was highlighted that at the S. 156(3) stage, the Magistrate
orders a police investigation before taking cognizance. If, at this stage, he chooses to take
cognizance, then he must proceed under Chapter XV and cannot direct an investigation
(because investigation precedes cognizance). Once the Mag. chooses a route, she must
take it all the way through.

6
Similarly in Paradise Credit v State of Delhi, the Delhi HC rejects the argument of evidence being in control of the
complainant and notes that once the Mag. had called for a status report from the Police, he should not have rejected the
156(3) application before such a report was filed and considered.

16
 a. The Court also explained that when a Mag. issues an invetsigation under S.
156(3), even if she does not say so, the Police is bound to register an FIR if there
isn’t one already. While S. 156(3) does not directly address the power to file an
FIR, since the investigatory power of the police depends on the filing of an FIR, it
is implied.
b. Further it notes that the investigation/inquiry under section 202 is of a limited
nature. It is only for the purpose to help the magistrate decide whether or not there
are sufficient grounds for proceeding further.
c. Even if a complaint discloses an offense the power to take cognizance under
section 190 is discretionary. The Magistrate is free to instead direct an
investigation under section 156(3) without taking cognizance instead, especially
in cognizable cases where the primary duty to investigate is with the police. [para
13].

9. In Rajni Palriwala the magistrate first proceeded under section 156(3) and
called for a status report. The status report revealed that the Economic Offences Wing of
the police had conducted a detailed investigation and reached the conclusion that no
offense was made out. Subsequently, the magistrate permitted the applicant/complainant
to withdraw the application under section 156(3) and to present evidence under section
200 instead. This was challenged as the magistrate must decide which path to follow and
see it to the end and the magistrate cannot switch lanes midway.

a. The Court agreed that once a magistrate obtains a report after a section 156(3)
order, the magistrate is bound to apply its mind to the order and proceed
accordingly. It observes that it was open for the magistrate to not ask for a report
under section 156(3) if it felt that it was not required and proceed with it as a
complaint. But it was not open for the magistrate to permit the complainant to
withdraw the section 156(3) application after a report has been received.
b. Further it held:
17…Thus, a Magistrate who on receipt of a complaint, orders an investigation
under Section 156(3) and receives a police report under Section 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 Section 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 Section 190(1)(a) on the basis of the original complaint and proceed to
examine upon oath the complainant and his witnesses under Section 200. If he
adopts the third alternative, he may hold or direct an inquiry under Section 202 if
he thinks fit.
17
 19…Those three options read as under (SCC @ p. 543): “(1) The court may
accept the report and drop the proceedings; or (2) the court may disagree with the
report and take cognizance of the offence and issue process if it takes the view
that there is sufficient ground for proceeding further; or (3) the court may direct
further investigation to be made by the police.”
20. In the instant case, the learned MM was bound in law to apply his mind to
report filed by the police, and to opt for any one of the three courses of action
available to him in terms of the judgment of the Supreme Court in H.S. Bains and
Hemant Dhasmana. However, the learned MM did not do so. He permitted the
complainant to withdraw the application under Section 156(3) CrPC and
straightway proceeded to list the case for the complainant's evidence. This course
was erroneous. The learned MM was bound to discuss the police report and come
to a definite conclusion that it was or was not acceptable and follow the course
explained in the above decisions.
10. Now how it is filed is a 156(3) with an alternative of 200. The discretion under 156(3) is
whether there is cognizable offense or not.

V. Bail and Arrest

The Court on its own motion v State
Held - The MM has power to release on bail persons accused of non-bailable offense subject to
conditions in section 437(1). While a MM can grant bail in an offense exclusively triable by the
Court of Sessions, it would be propper and appropriate to direct the accused to seek bail from the
sessions court:

DK Basu v State of West Bengal

We therefore, consider it appropriate to issue the following requirements to be followed in all
cases of arrest or detention till legal provisions are made in that behalf as preventive
measures
:
(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee
should bear accurate, visible and clear identification and name togs with their designations.
The particulars of all such police personnel who handle interrogation of the arrestee must be
recorded in a register. [41B(a)]
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of
arrest at the time of arrest a such memo shall be attested by atleast one witness. who may be
either a member of the family of the arrestee or a respectable person of the locality from
where the

18
arrest is made. It shall also be counter signed by the arrestee and shall contain the time and
date of arrest. [41B(b)]
(3) A person who has been arrested or detained and is being held in custody in a police
station or interrogation centre or other lock-up, shall be entitled to have one friend or relative
or other person known to him or having interest in his welfare being informed, as soon as
practicable, that he has been arrested and is being detained at the particular place, unless the
attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
[41B(c)], 50A
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the
police where the next friend or relative of the arrestee lives outside the district or town
through the legal Aid Organisation in the District and the police station of the area concerned
telegraphically within a period of 8 to 12 hours after the arrest. [not exactly explicitly there
in the CrPC here, as legal aid is present elsewhere]
(5) The person arrested must be made aware of this right to have someone informed of his
arrest or detention as soon he is put under arrest or is detained. [hand in hand with 3rd one)
(6) An entry must be made in the diary at the place of detention regarding the arrest of the
person which shall also disclose the name of he next friend of the person who has been
informed of the arrest an the names and particulars of the police officials in whose custody
the arrestee is. [50A(3)]
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and
major and minor injuries, if any present on his/her body, must be recorded at that time. The
"Inspection Memo" must be signed both by the arrestee and the police officer effecting the
arrest and its copy provided to the arrestee.[54]
(8) The arrestee should be subjected to medical examination by trained doctor every 48 hours
during his detention in custody by a doctor on the panel of approved doctors appointed by
Director, Health Services of the concerned Stare or Union Territory. Director, Health
Services should prepare such a penal for all Tehsils and Districts as well. [54 and 55A]
(9) Copies of all the documents including the memo of arrest, referred to above, should be
sent to the illaga Magistrate for his record. [58]
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not
throughout the interrogation. [41D]
(11) A police control room should be provided at all district and state headquarters, where
information regarding the arrest and the place of custody of the arrestee shall be
communicated

19
by the officer causing the arrest, within 12 hours of effecting the arrest and at the police
control room it should be displayed on a conspicuous notice board. [41C]
Failure to comply with the requirements hereinabove mentioned shall apart from rendering
the concerned official liable for departmental action, also render his liable to be punished for
contempt of court and the proceedings for contempt of court may be instituted in any High
Court of the country, having territorial jurisdiction over the matter.
The requirements, referred to above flow from Articles 21 and 22 (1) of the Constitution and
need to be strictly followed. These would apply with equal force to the other governmental
agencies also to which a reference has been made earlier.
These requirements are in addition to the constitutional and statutory safeguards and do not
detract from various other directions given by the courts from time to time in connection
with the safeguarding of the rights and dignity of the arrestee.

Arnesh Kumar v State of Bihar

Our endeavour in this judgment is to ensure that police officers do not arrest accused
unnecessarily and Magistrate do not authorise detention casually and mechanically. In order
to ensure what we have observed above, we give the following direction:
1. All the State Governments to instruct its police officers not to automatically arrest
when a case under Section 498-A of the IPC is registered but to satisfy themselves
about the necessity for arrest under the parameters laid down above flowing from
Section 41, Cr.PC;
2. All police officers be provided with a check list containing specified sub- clauses
under Section 41(1)(b)(ii);
3. The police officer shall forward the check list duly filed and furnish the reasons and
materials which necessitated the arrest, while forwarding/producing the accused
before the Magistrate for further detention;
4. The Magistrate while authorising detention of the accused shall peruse the report
furnished by the police officer in terms aforesaid and only after recording its
satisfaction, the Magistrate will authorise detention;
5. The decision not to arrest an accused, be forwarded to the Magistrate within two
weeks from the date of the institution of the case with a copy to the Magistrate which
may be extended by the Superintendent of police of the district for the reasons to be
recorded in writing;

20
 6. Notice of appearance in terms of Section 41A of Cr.PC be served on the accused
within two weeks from the date of institution of the case, which may be extended by
the Superintendent of Police of the District for the reasons to be recorded in writing;
7. Failure to comply with the directions aforesaid shall apart from rendering the police
officers concerned liable for departmental action, they shall also be liable to be
punished for contempt of court to be instituted before High Court having territorial
jurisdiction.
8. Authorising detention without recording reasons as aforesaid by the judicial
Magistrate concerned shall be liable for departmental action by the appropriate High
Court.
We hasten to add that the directions aforesaid shall not only apply to the cases under Section
498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such
cases where offence is punishable with imprisonment for a term which may be less than
seven years or which may extend to seven years; whether with or without fine.

Gurubaksh Singh Sibbia v State of Punjab 1980 SC

Question: Scope of section 438 [anticipatory bail]. It challenged detailed guidelines laid down
by the punjab and haryana high court which were in effect creating category of cases where bail
may or may not be granted and instead lays down broad principles for grant of anticipatory bail.
Held: First, there must be reasonable grounds capable of objective determination for grant of
anticipatory bail. [para 35] Second, a high court or sessions court cannot leave the question for
grant of bail to the magistrate at the stage of section 437 [para 36]. Third, filing of a FIR is not a
precondition to grant of anticipatory bail [para 37]. Fourth, anticipatory bail can be granted even
after registration of FIR [para 38]. Fifth, it cannot be invoked after arrest [para 39].

It goes on to say that blanket order of anticipatory bail cannot be passed as first the section
requires objective reasons and the plaintiff must point towards specific facts that give rise to
her apprehension. Secondly, a blanket order can become a ticket to lawlessness and prevent
prompt investigation into offences. The court must specify the offences for which it passes
an anticipatory bail order [para 41]. It holds that the court is free to put conditions on grant
of bail but generally it should not put limitation as to time of bail. [para 42]. The accused
should also surrender himself in case recoveries are made under section 27 of the evidence
act.

Motiram v State of MP (SC)

Question: The courts seeks to answer (i) can the court grant bail on own bond without sureties in
non cognizable cases? (ii) When court grants bail with sureties how should it calculate bail? (iii)
Can the court reject a surety if it is located in a different district or state?

21
Held:

22
(i) The concept of bail is wide enough to cover bail without sureties. (ii) It should not set the
amount to be excessive depending on the ability of the accused to pay the bail. The court comes
down on the practice of setting exessive bail amounts which the indignant cannot meet. (iii) no, a
surety cannot be rejected on grounds only that she is in another state.
The court when deciding bail in a non-bailable offense, the court must take into account (i)
seroiusness of offense (ii) likelihood of fleeing from justice and (iii) witness/evidence tapering.

Sanjay Chandra v CBI (SC)

The case decides the factors be considered when granting bail. It holds that that (i) seriousness of
the charge, (ii) severity of the punishment [para 39], (iii) cannot be denied on ground of
community sentiment [para 40], (iv) likelihood of the accused absconding, (v) probability of the
accused tampering with prosecution witness [para 41], (vi) period of incarceration already
undergone and delay in concluding trial [para 43-44] (vii) whether their presence is required for
further investigation. [para 46]
The purpose of bail is to secure the presence of the accused and not to punish the accused or
prevent the accused from doing anything. Punishment begins after conviction and a person is to
be considered innocent until proven guilty.[para 21] The test is whether it is necessary to keep
the accused inn custody to secure their appearance. [para 22]

State of Maharashtra v. Buddhikota S. Rao

Point: highlights how judge dependant bail application are. Finally holds that successive bail
applications should be discouraged without material change in facts or circumstances. A
successive bail application filed just 2 days after rejection and without material change should
not have been granted by the high court.
Context:

A retired Naval officer was apprehended at the Mumbai Airport and was found with highly
sensitive and confidential documents. A complaint was filed against him on breach of provisions
of the Official Secrets Act, 1923 and the Atomic Energy Act, 1962. After his arrest, he filed an
application for bail, which the HC rejected. A writ petition was filed challenging s. 3 and 5 of the
OSA which was dismissed. He preferred an application for transfer and bail. The transfer was
granted but not the bail. A third bail application was also rejected. He was later admitted to a
hospital on account of spinal pain. Another bail application was moved. The trial court framed
charges. Another bail application on medical grounds was filed, which was not rejected - Rs.
10,000 with one surety. It is this order that is challenged.
Issue:

23
Whether there was a justification in releasing the respondent on bail even though a group of bail
applications on similar pryaers had been rejected oly two days before?
Held:
- The decision has to be made having regard to the nature of the crime, the circumstances
in which it was committed, the background of the accused, the possibility of his jumping
bail, the impact that bis release may make on the prosecution witnesses, its impact on the
society and the possibility of retribution, etc.
- In the present case, there were two bail applications with identical requests. Granting of
the second prayer immediately after rejecting the first one is virtually overruling the
earlier decision.
- Judicial discipline, propriety and comity demands that the impugned order must not have
been passed reversing all earlier orders.
- Court exercised power under art. 136 of the Constitution to direct the matter to be placed
before the same learned Judge who disposed of the earlier applications.

Siddharam Satlingappa Mhetre v. State of Maharashtra

Context:

The appellant, belongs to INC and the complainant was contesting election on behalf of BJP.
Patil, the complainant came to the village and met his party workers. When they were about to
leave, Mhetre and his supporters suddenly appeared, challenged Patil. Some of them fired from
their pistols to kill Patil which resulted in the death of one person. Other supporters were
assaulted. HC declined anticipatory bail. Hence the appeal.
Issue:
Whether powers under s. 438 are subject to limitation of s. 437 of the CrPC?
Held:
- S. 438 is an extraordinary provision where the accused who apprehends his/her arrest on
accusation of having committed a non-bailable offense can be granted bail in anticipation
of arrest. Heavy reliance placed on Gurbaksh Singh Sibbia
- No justification for reading into s. 438 the limitations mentioned in s. 437. The plentitude
of the section must be given full play. Person seeking anticipatory bail is still a free man
and is entitled to presumption of innocence.
- Section 438 does not mention anything about the duration of the bail in the event of arrest
can be granted. It is unreasonabke to lay down strict, inflexible, and rigid rules for
exercise of discretion by limiting the period of which an order under s. 438 could be
granted.

24
 - Once anticipatory bail is granted, the protection should ordinarily be available till the end
of trial unless the interim protection by way of grant of anticipatory bail is curtailed when
it is cancelled by court on finding fresh material or circumstances or on ground of abuse
of indulgence by accused.
- Laid down factors and parameters to be taken into consideration while dealing with
anticipatory bail under para 112.
- Exercisse of jurisidcition under s. 438 must be entrusted to judges with good track record.
The discretion must be exercised with caution and prudence.
- The relevant judgment and order of the HC declining anticipatory bail cannot be
sustained and is set aside.
Important: Specifically discussed in class
112. The following factors and parameters can be taken into consideration while dealing with
the anticipatory bail:
(i) The nature and gravity of the accusation and the exact role of the accused must be
properly comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to whether the accused has
previously undergone imprisonment on conviction by a court in respect of any cognizable
offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused's likelihood to repeat similar or other offences;

(v) Where the accusations have been made only with the object of injuring or humiliating
the applicant by arresting him or her;
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting
a very large number of people;
(vii) The courts must evaluate the entire available material against the accused very
carefully. The court must also clearly comprehend the exact role of the accused in the case.
The cases in which the accused is implicated with the help of Sections 34 and 149 of the
Penal Code, 1860 the court should consider with even greater care and caution because
overimplication in the cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be
struck between two factors, namely, no prejudice should be caused to the free, fair and full
investigation and there should be prevention of harassment, humiliation and unjustified
detention of the accused;

25
 (ix) The court to consider reasonable apprehension of tampering of the witness or
apprehension of threat to the complainant;
(x) Frivolity in prosecution should always be considered and it is only the element of
genuineness that shall have to be considered in the matter of grant of bail and in the event of
there being some doubt as to the genuineness of the prosecution, in the normal course of
events, the accused is entitled to an order of bail.

Sushila Aggarwal v. State (NCT of Delhi)

5 Judge Bench
Context:
Conflicting views in various cases led to the following questions being referred to a larger bench.
Issues:
- Whether the protection granted to a person under s. 438 CrPC be limited to a fixed period
so as to enable the person to surrender before the trial court and seek regular bail?
- Whether the life of an anticipatory bail should end at the time and stage when the accused
is summoned by the court?
Held:
As far as the first question was concerned, the five-judge bench of the SC held that the protection
under section 438 need not always be granted for a limited period of time and had to be granted
in favour of the accused without any time restriction. Normal restrictions under section 437(3)
read with section 438(2) ought not to be imposed unless the specificity of the case required
imposition of special conditions.
With respect to the second question, the court held that the life of an anticipatory bail order
would not normally end when the accused is summoned by the Court or when charges are
framed against him and it would normally continue till the end of the trial. Ordinarily
anticipatory bail would continue after the filing of the charge sheet till the end of the trial.
However, it also recognised the Court’s discretion to limit the tenure based on the peculiarity or
specificity of the concerned case.
With this judgment, the SC explicitly overruled Salauddin; K.L. Verma and other judgments
which held the view that tenure of an anticipatory bail order ought to be limited. The SC also
overruled Mhetre as far as it put a bar on the imposition of any restrictive condition in an order
for anticipatory bail. In the present case, the SC extensively made reference to and followed its
decision in Sibbia. The Court did not deem it proper to narrow down the powers of the High
Court and Court of Session with respect to the tenure of an anticipatory bail.

26
Section 438, thus, contemplates arrest at the stage of investigation and affords a protective
mechanism against arrest during the investigation process. The purpose is not to allow the
accused to evade their appearance before the trial court on the pretext of anticipatory bail.
7.6. Thus, considering the observations made by the Constitution Bench of this Court in
Gurbaksh Singh Sibbia, the court may, if there are reasons for doing so, limit the operation of the
order to a short period only after filing of an FIR in respect of the matter covered by order
and the applicant may in such case be directed to obtain an order of bail under Sections
437 or 439 of the Code within a reasonable short period after the filing of the FIR. The
Constitution Bench has further observed that the same need not be followed as an invariable rule.
It is further observed and held that normal rule should be not to limit the operation of the order in
relation to a period of time. We are of the opinion that the conditions can be imposed by the
court concerned while granting pre-arrest bail order including limiting the operation of the order
in relation to a period of time if the circumstances so warrant, more particularly the stage at
which the “anticipatory bail” application is moved, namely, whether the same is at the
stage before the FIR is filed or at the stage when the FIR is filed and the investigation is in
progress or at the stage when the investigation is complete and the charge-sheet is filed.
However, as observed hereinabove, the normal rule should be not to limit the order in
relation to a period of time.
Conclusions

92.1. Consistent with the judgment in Gurbaksh Singh Sibbia v. State of Punjab [Gurbaksh
Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465] , when a person
complains of apprehension of arrest and approaches for order, the application should be based on
concrete facts (and not vague or general allegations) relatable to one or other specific offence.
The application seeking anticipatory bail should contain bare essential facts relating to the
offence, and why the applicant reasonably apprehends arrest, as well as his side of the story.
These are essential for the court which should consider his application, to evaluate the threat or
apprehension, its gravity or seriousness and the appropriateness of any condition that may have
to be imposed. It is not essential that an application should be moved only after an FIR is filed; it
can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending
arrest.
92.6. An order of anticipatory bail should not be “blanket” in the sense that it should not
enable the accused to commit further offences and claim relief of indefinite protection from
arrest. It should be confined to the offence or incident, for which apprehension of arrest is
sought, in relation to a specific incident. It cannot operate in respect of a future incident that
involves commission of an offence.
92.7. An order of anticipatory bail does not in any manner limit or restrict the rights or duties
of the police or investigating agency, to investigate into the charges against the person who seeks
and is granted pre-arrest bail.

27
 92.9. It is open to the police or the investigating agency to move the court concerned, which
grants anticipatory bail, for a direction under Section 439(2) to arrest the accused, in the event of
violation of any term, such as absconding, non-cooperating during investigation, evasion,
intimidation or inducement to witnesses with a view to influence outcome of the investigation or
trial, etc.

Munawar v State of Madhya Pradesh 2021 SC

Context - Munawar Farooqui was arrested and the Defence in the bail proceedings before the
Supreme Court argued that the requirements of Section 41 CrPC were not met
Held - If Section 41 CrPC, as explained in Arnesh Kumar v State of Bihar is not complied with
then bail has to be granted.
Extracts -
1. The learned counsel has pointed out to us that quite apart from the fact that the
allegations made in the FIR are vague that the procedure contained in Section 41 CrPC as
adumbrated by our judgment in Arnesh Kumar v. State of Bihar [Arnesh Kumar v. State
of Bihar, (2014) 8 SCC 273 : (2014) 3 SCC (Cri) 449] , has not been followed before
arresting the petitioner. This being the case, we issue notice in both the petitions, and stay
the judgment [Munnawar
v. State of M.P., 2021 SCC OnLine MP 152] of the High Court. The petitioner is released
on ad interim bail on conditions to the satisfaction of the trial court.
Point - This is a decision prior to Satender Kumar Antil. He merely wanted to highlight that this
particular judgment triggered a series of cases where bail was granted for non-compliance of
Section 41 CrPC and Arnesh Guidelines, ultimately leading to the categorical statement in
Satender Kumar Antil.

Santosh v State of Maharashtra 2017 SC

Context - The petitioner had been granted anticipatory bail in a case concerning
misappropriation of food grains meant for public distribution. The police filed an application for
the cancellation of bail alleging that the petitioner had not cooperated with the investigation.
Held - The right against self-incrimination is enshrined in Art 20(3). Non-confession of the
crime does not amount to non-cooperation.
Extracts -
6. It appears, the IO was of the view that the custody of the appellant is required for recording his
confessional statement in terms of what the co-accused had already stated in the statement under
Section 161 of the Code of Criminal Procedure, 1973. The IO was of the opinion that the
appellant was not cooperating because he kept reiterating that he had not purchased the
foodgrains. The purpose of custodial interrogation is not just for the purpose of confession. The
right against self-
28
incrimination is provided for in Article 20(3) of the Constitution. It is a well-settled position in
view of the Constitution Bench decision in Selvi v. State of Karnataka [Selvi v. State of
Karnataka, (2010) 7 SCC 263 : (2010) 3 SCC (Cri) 1] , that Article 20(3) enjoys an “exalted
status”. This provision is an essential safeguard in criminal procedure and is also meant to be a
vital safeguard against torture and other coercive methods used by investigating authorities.
Therefore, merely because the appellant did not confess, it cannot be said that the appellant was
not cooperating with the investigation. However, in case, there is no cooperation on the part of
the appellant for the completion of the investigation, it will certainly be open to the respondent to
seek for cancellation of bail.

Navendu Babbar v GNCTD 2020 DHC

Context - The case against the petitioner is that he was the ultimate beneficiary of a loan fraud
on the complainant. The defrauded amount was found to be in his bank account. The petitioner
had argued that the said amount was received against the supply of goods to the co-accused’s
company, which was involved in the fraud, and that he had nothing to do with the same. The
police during the investigation had demanded that the accused provide “original invoice
documents” for the alleged sale. The petitioner provided office copies of the invoices. The police
considered the refusal to provide the original documents as non-cooperation, and arrested the
petitioner. The petitioner has approached the court for bail.
Held - Non-supply of inculpatory or exculpatory documents cannot be said to be non-
cooperation. The accused is well within its rights to bring out defence evidence only during the
trial.

Extracts -

18. Upon a careful consideration of the allegations made, cross-referenced with the material
on record, and after balancing the rights of the accused on the one hand, the victim on the other
as also the role of the State as the proponent of public justice, at this stage when only the
applicant's bail plea is being considered, the following relevant aspects emerge:
i. That typically, the rationale and reasons for permitting judicial custody of an undertrial
accused are:
(a) To prevent the accused from committing any further offence;

(b) To conduct further investigation;

(c) To prevent the accused from tampering with evidence or causing disappearance of
evidence;
(d) To prevent the accused from extending any inducement, threat or promise to the
complainant/first informant or to the victim or to any other person, to dissuade
them
29
 from disclosing facts to the investigating agency or the court or from deposing
without fear or coercion during trial; and/or
(e) To ensure the presence of the accused to face trial.
ii. That in the present case, which arises from an FIR that was registered on 30.06.2015,
that is nearly 5 years ago, presumably investigation was going-on ever since and the
charge-sheet was originally filed on 24.05.2017, in which the applicant's name was
not included. Subsequently, further investigation was conducted and a supplementary
charge-sheet was filed on 21.05.2020 in which the name of the applicant appeared.
Clearly, upon filing of the supplementary charge-sheet, investigation insofar it relates
to the applicant, stood concluded.
iii. That while the State argues, that the applicant has not ‘cooperated’ in the
investigation, the only aspect cited is that the applicant did not give to the I.O.
original documents relating to the sale of goods against which money was received by
the applicant/M/s. Harshit Enterprises from M/s. Heico Electronics. However, this
demand of the I.O. must be taken as answered on point of fact, when the original,
signed ‘office copies’ of invoice/s dated 28.03.2014 were delivered by the applicant's
counsel to the I.O. in court, as recorded in order dated 27.09.2017 made by the
Sessions Court; and copies thereof were also placed on the court record. It is
reasonable to assume that the ‘original invoices’ would have been delivered to the
person upon whom the invoices were raised, in this case M/s. Heico Electronics, and
would therefore not have been available with the applicant.
iv. That the I.O.'s allegation that the applicant was not ‘cooperating’ in the investigation
also needs to be put in legal perspective. Is the I.O. saying that an accused would be
taken to be ‘not cooperating’ in the investigation till he furnishes all material that the
I.O. thinks is necessary to nail the accused? We must remember that under our system
of criminal jurisprudence, an accused has a right of silence, apart from a fundamental
right against self-incrimination under Article 20(3) of the Constitution. What would
happen if an accused says that no other material is available, whereas the I.O. thinks
or says that other material exists and must be delivered-up before the accused is
granted bail? In such case, would the court be persuaded to keep an accused in
judicial custody endlessly, till this impasse is resolved? Consider another scenario :
what if an accused wants to produce some exculpatory evidence in his defence during
trial; and fears, that if the exculpatory material is shared with the I.O. during
investigation, the I.O. may either not produce such material before the court or
destroy it, so that it is not available to the accused for his defence? While in theory, it
is the duty of the I.O. to collect all evidence, whether inculpatory or exculpatory,
during investigation and to place it before the court, it would be naive for a court to
assume that this theory is put into practice by investigating agencies. It is also well
within the rights of an accused to

30
 bring-out defence evidence only during trial. This is one of the reasons why, in a
criminal trial, an accused is not required to furnish a written statement of his defence
nor to file any affidavit disclosing the evidence he proposes to adduce during trial.
While in a civil trial, it is impermissible to spring a surprise on an opposing party,
there is no such bar on an accused in a criminal trial. The I.O. therefore cannot be
heard to say that till the applicant hands-over to him every shred of evidence, which
the I.O. think exists, the applicant should be kept in prison as an undertrial.

Satender Kumar Antil v. CBI (Order)

Interim Order which adopted the following guidelines -
Categories/Types of Offences
(A) Offences punishable with imprisonment of 7 years or less not falling in Categories B and D.
(B) Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years.
(C) Offences punishable under Special Acts containing stringent provisions for bail like NDPS
(Section 37), PMLA (Section 45), UAPA [Section 43-D(5)], Companies Act [Section 212(6)],
etc.
(D) Economic offences not covered by Special Acts.
Requisite Conditions

(1) Not arrested during investigation.

(2) Cooperated throughout in the investigation including appearing before investigating officer
whenever called.
(No need to forward such an accused along with the charge-sheet Siddharth v. State of U.P.
[Siddharth v. State of U.P., (2022) 1 SCC 676] )
Category A
After filing of charge-sheet/complaint taking of cognizance
(a) Ordinary summons at the 1st instance/including permitting appearance through lawyer.

(b) If such an accused does not appear despite service of summons, then bailable warrant for
physical appearance may be issued.
(c) NBW on failure to appear despite issuance of bailable warrant.

(d) NBW may be cancelled or converted into a bailable warrant/summons without insisting
physical appearance of the accused, if such an application is moved on behalf of the accused
before execution of the NBW on an undertaking of the accused to appear physically on the next
date/s of hearing.

31
(e) Bail applications of such accused on appearance may be decided without the accused being
taken in physical custody or by granting interim bail till the bail application is decided.
Category B/D
On appearance of the accused in court pursuant to process issued bail application to be decided
on merits.
Category C
Same as Categories B and D with the additional condition of compliance of the provisions of bail
under NDPS (Section 37), Section 45 of the PMLA, Section 212(6) of the Companies Act,
Section 43-D(5) of the UAPA, Pocso, etc.”
Category A can be based on a Police Report or on a Pvt Complaint

Puran v Rambilas 2001 SC

Point - An appeal against the order of the HC canceling bail. The Court provided the grounds on
which bail can be cancelled in non-bailable offences.
The Court provided 2 types of considerations -

1. Interference with the conditions of the bail - only the conduct is seen. The merits are not
looked at.
2. Cancellation on merits of the case -

a. Order granting baiil was perverse - did not consider some material which was
present on the record while granting bail.
b. Some fresh material has come to light.

Excerpts -
10. Mr Lalit next submitted that once bail has been granted it should not be cancelled unless
there is evidence that the conditions of bail are being infringed. In support of this submission he
relies upon the authority in the case of Dolat Ram v. State of Haryana [(1995) 1 SCC 349 : 1995
SCC (Cri) 237] . In this case it has been held that rejection of bail in a non-bailable case at the
initial stage and the cancellation of bail already granted have to be considered and dealt with on
different basis. It has been held that very cogent and overwhelming circumstances are necessary
for an order directing the cancellation of the bail already granted. It has been held that 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. It is, however, to be
noted that this Court has clarified that these instances are merely illustrative and not exhaustive.
One such ground for cancellation of bail would be where ignoring material and evidence on
record a perverse order

32
granting bail is passed in a heinous crime of this nature and that too without giving any reasons.
Such an order would be against principles of law. Interest of justice would also require that such
a perverse order be set aside and bail be cancelled. It must be remembered that such offences are
on the rise and have a very serious impact on the society. Therefore, an arbitrary and wrong
exercise of discretion by the trial court has to be corrected.
11. Further, it is to be kept in mind that the concept of setting aside the unjustified illegal or
perverse order is totally different from the concept of cancelling the bail on the ground that the
accused has misconducted himself or because of some new facts requiring such cancellation.
This position is made clear by this Court in Gurcharan Singh v. State (Delhi Admn.) [(1978) 1
SCC 118
: 1978 SCC (Cri) 41 : AIR 1978 SC 179] . In that case the Court observed as under: (SCC p. 124,
para 16)
“If, however, a Court of Session had admitted an accused person to bail, the State has two
options. It may move the Sessions Judge if certain new circumstances have arisen which
were not earlier known to the State and necessarily, therefore, to that court. The State
may as well approach the High Court being the superior court under Section 439(2) to
commit the accused to custody. When, however, the State is aggrieved by the order of the
Sessions Judge granting bail and there are no new circumstances that have cropped up
except those already existing, it is futile for the State to move the Sessions Judge again
and it is competent in law to move the High Court for cancellation of the bail. This
position follows from the subordinate position of the Court of Session vis-à-vis the High
Court.”

State v Gangi Reddy 2023 SC

Point - Can default bail be cancelled on the submission of the chargesheet? If yes, under what
circumstances?
The Court held that a default bail can be cancelled on 2 grounds -

1. If there is interference with the conditions, then DB can be cancelled just like regular bail.
2. Upon the filing of the chargesheet, DB can be cancelled only on exceptional grounds.

Excerpts -
27. From the above, the law, which emerges is that mere filing of the charge-sheet subsequent to
a person is released on default bail under Section 167(2)CrPC cannot be a ground to cancel the
bail of a person, who is released on default bail. However, on filing of the charge-sheet on
conclusion of the investigation, if a strong case is made out and on merits, it is found that he has
committed a non-bailable offence/crime, on the special reasons/grounds and considering Section
437(5) and Section 439(2)CrPC, over and above other grounds on which the bail to a person,
who is released on bail can be cancelled on merits.

33
29. As such, we are in complete agreement with the view taken by this Court in the aforesaid
decisions. The submission on behalf of the respondent-original Accused 1 and the view taken by
the High Court in the impugned judgment and order [State v. T. Gangi Reddy, 2022 SCC
OnLine AP 3214] that once an accused is released on default bail under Section 167(2)CrPC, his
bail cannot be cancelled on merits is accepted, in that case, it will be giving a premium to the
lethargic and/or negligence, may be in a given case of deliberate attempt on the part of the
investigating agency not to file the charge-sheet within the prescribed time period. In a given
case, even if the accused has committed a very serious offence, may be under the NDPS or even
committed murder(s), still however, he manages through a convenient investigating officer and
he manages not to file the charge-sheet within the prescribed time-limit mentioned under Section
167(2)CrPC and got released on default bail, it may lead to giving a premium to illegality and/or
dishonesty. As observed hereinabove, such release of the accused on default bail is not on merits
at all, and is on the eventuality occurring in the proviso to sub-section (2) of Section 167.
However, subsequently on curing the defects and filing the charge-sheet, though a strong
case is made out that an accused has committed the very serious offence and non-bailable
crime, the court cannot cancel the bail and commit the person into custody and not to
consider the gravity of the offence committed by the accused, the courts will be loathe for
such an interpretation, as that would frustrate the justice. The courts have the power to
cancel the bail and to examine the merits of the case in a case where the accused is released on
default bail and released not on merits earlier. Such an interpretation would be in furtherance to
the administration of justice.

VI. Production of document - s91 CrPC

Section 91 CrPC
Note -
He explained in class the scope of s91 CrPC -
Any Investigation - from 154 to 173
Inquiry - all things from 200 to 176 (inquest)
Trial - From the process of summons
Other proceedings - pre trial stuff? S207 and the like; 97 and 98

Gayatri Bais v State of MP 1998 MP HC

Context - The defence did not make an application under s91 CrPC because they were of the
opinion that such applications are not being accepted by Courts these days.
Held - s91 is an important safeguard. At the outset, the PP is under the duty to bring to the
attention of the Court any document which the police has found during the investigation and
which may be exculpatory in nature. However, if the PP has not produced such a document

34
and the defence

35
believes such document to be in possession of the PP then the same can be compelled to be
produced under s91.
Point - He used it to explain that s91 is not really adversarial in nature. It is used to discover the
truth.

Pawan Duggal v State 2001 DHC

Context - The petitioner who is charged with offences u/s 302/307/212/201 r/w s120B and s34
IPC and u/s 25/27 Arms Act made an application under Section 91 CrPC for the production of
Form No 1 of the Police Control Room which related to the shooting incident, among other
documents. The trial judge rejected the requested.
Held - An accused is entitled to even the case diary records maintained u/s 172 CrPC. These
docs are not provided to the accused u/s 207 CrPC but the scope of s91 is wider, and these
documents can be compelled to be produced if they are deemed relevant.
Application u/s 91 CrPC can also be made at the pre-charge stage even if evidence is not
summoned at that stage because s91 is used for preparing the defence.

9. Every accused for the purpose of preparing his defence and effective cross examination of the
witnesses must be given all support and assistance so that he feels reassured that the trial against
him has been just and fair. In case any document in possession of the prosecution or any other
person, except a document which is privileged and cannot be supplied to him, must be made
available to him at the earliest opportunity so that he knows where he stands and what is the
evidence that incriminates him or exonerates him of the charges levelled against him. The
documents or things which he himself cannot procure for the purposes of putting his defence
have to be requisitioned by invoking Section 91 of the Code, if the Court is satisfied that those
are necessary or desirable for the purpose of trial. It is also true that defence evidence cannot be
summoned at pre-charge stage but documents tending to support defence can be brought on
record so as to enable the accused to put up his defence and cross examine the prosecution
witnesses effectively. Fishing enquiries, in regard to a document or a thing, which may or may
not be in existence or which may or may not be connected with the subject matter of the case,
cannot be allowed to be made by invoking the provisions of Section 91 of the Code, but when a
document or a thing appears to be connected with the subject mailer of the case and is not in
possession of a party, the Court can always invoke this provision and help the party with a view
to advance the interests of justice.
Note - Only these 2 cases were taught in Module 6. All the rest say the same thing.

36
Neelesh Jain v State of Rajasthan 2006 Raj HC
Facts - An accused filed an application u/s 91 CrPC for the production of certain documents in
possession with the police. The order of the Sessions Court denying the application was
challenged before the HC.
Issue - Under what circumstances can you access case diary

Held -
● The case diary can be accessed by the Defence during the witnesses' cross and for
refreshing their memory.
● The withholding of material by the Prosecution has to comply with principles of
administrative law. It cannot be unfair, unjust. Only for the 3 specified reasons under
Section 173(6) CrPC can the materials be withheld, and such reasons have to be recorded
in writing.
● Section 91 CrPC is not subject to Section 173(6). The Court can allow the material to be
produced regardless of the Police withholding the material under one of the
circumstances provided in 173(6) CrPC.
Excerpts -

12. Sub-section (6) permits the Investigating Agency to withhold that portion of the statements
recorded by them under Section 161 Cr. P.C., which is “not relevant to the subject-matter”, or
“the disclosure to the accused is not essential in the interests of justice and is inexpedient in the
public interest.” The power to withhold statements or documents is not an unbridled power. It
can be used only in the three circumstances enumerated above and not beyond that Moreover,
while exercising the said power, the police are legally bound to state reasons for withholding the
statements or documents. Therefore, the police are not entitled to use the power according to its
whims and fancies, but must use the power sparingly and for cogent and reasonable reasons. The
investigating agency cannot forget the fact that it is part of the State. Every action of the State
has to be “just, fair, and reasonable.” The principles of Administrative Law are as
applicable to the investigating agency as they are to the State. Hence, the police must
exercise its power under Sub-section (6) of Section 173 of the Code keeping in mind that its
action must be “just, fair and reasonable.” Any action, which is unjust, unfair and
unreasonable, would be an anathema to the concept of equality enshrined in Art. 14 of the
Constitution of India. The investigating agency cannot be permitted to violate the fundamental
rights of the accused in the carb of existing its power under Sub-section (6) of Section 173 of the
Code.
14. A bare perusal of the Section reveals firstly, that it is not subjected to Section 172 and
Section 173 of the Code. Therefore, the prohibitions contained in Sections 172 and 173 of the
Code do not crib, cabin and confine the powers of the Court under Section 91 of the Code.
Secondly, a purposive interpretation has to be given to Section 91. This provision empowers
37
the Court to

38
summon the production of documents or things which the Court considers “necessary or
desirable for the purposes of any… … … inquiry, trial or other proceeding under this Code.” It
bestows a power on the Court to direct the production of the document or thing before the Court.
This is a tool given in the hands of the Court to discover the truth of the controversy before it. It,
thus, enables the Court to do complete Justice with the parties before it. It is precisely to arm the
Courts with this weapon that the said section is not subject to Section 173 of the Code. In case
the legislature wanted to give the complete power of withholding information from the court to
the prosecution, then the legislature would have made Section 91 subject to Section 173 of the
Code. But, such is not the case. Therefore, the only harmonious interpretation of the two
provisions would be that Sub-section (6) of Section 173 does not curtail the power of the Court
under Section 91 of the Code. In case the Court is of the opinion that the prosecution has
withheld vital, relevant and admissible evidence from the court, it can legitimately use its power
under Section 91 of the Code to discover the truth and to do complete justice to the accused.
Hence, any information that is relevant for the just decision of the case, which has been gathered
by the investigating agency, must be produced before the Court provided that such revelation
would not jeopardize the public interest. To do injustice is against public interest. For, the people
loose faith in the judiciary. One cannot forget the maxim that “justice should not only be done,
but it must also appear to be done.” Thus, while entertaining an application under Section 91 of
the Code, the Court should first consider if any of the three criteria prescribed by Sub-section (6)
of Section 173 of the Code is satisfied or not? It should also see if the police have given any
cogent reasons for withholding the copies of the statements/documents from the Court. In case
the criteria prescribed by Section 173(6) is satisfied, the Court should then consider if the
documents or things are “necessary or desirable” for the just decision of the case. In case it is,
then the Court should allow the application under Section 91 of the Code notwithstanding the
embargo contained in Section 173(6) of the Code. In case, the Court comes to the conclusion that
the documents or things are irrelevant for the just decision of the case or that the application has
been moved with ulterior motive, then it should reject the application. Naturally, the discretion
vested in the Court must be applied judiciously, while keeping in mind the Constitutional
mandate, and the purpose of Section 91 of the Code. The Court is not expected to reject the
application in a mechanical manner. Since rejection of such an application is subject to the
scrutiny of higher Courts, the Trial Court must assign reasons for rejecting the application under
Section 91 of the Code.

Arun Kumar Aggarwal v Prasar Bharti 2000 Del HC

Context - The petitioner was working as a Financial Expert with the respondent where he had to
study the events leading up to Doordarshan losing Rs 20 crores in TV rights for the ICC
Knockout Tournament 1998. The petitioner released his findings in a public report which led to
the ICC President filing a criminal defamation complaint against him. The petitioner filed the
present WP under Art 226 to direct the respondent to give access to all files relating to the 1998
tournament.
Held - Section 91 CrPC can be used to compel documents from third parties as well.
39
VIII. Further Investigation/Supplementary Charge sheet u/s
173(8)
Hemant Dhasmana v CBI 2001 SC
Context - The Appellant had made a complaint of bribery against the Chief Commissioner of
Income Tax and his sons. The CBI asked the Appellant to carry out a sting operation, during
which the Commissioner and his sons were caught taking bribe. The chargesheet submitted by
the CBI exonerated the Commissioner and the sons, but charged the Appellant u/s 182 and 211
IPC. The Special Judge under the PCA refused to take cognisance of the report and directed a
DIG rank officer of the CBI to do further investigation u/s 173(8). The HC set aside the order
and an appeal was made to the SC.

Held - The Magistrate when presented with a Final Report u/s 173(2) which states that no
offence has been committed, the Court can, after hearing the complainant, -
- Accept the report.

- While refusing with the conclusions drawn by the Police and take cognizance of the
offences which the Court is of the opinion are made out.
- The Court can direct further investigation under Section 173(8) CrPC. [para 19]

While directing further investigation u/s 173(8), a Court cannot direct that the investigation
must be carried out by a particular police officer or by a police officer of a certain rank. [para
20]
Extracts -
16. Although the said sub-section does not, in specific terms, mention about the powers of
the court to order further investigation, the power of the police to conduct further
investigation envisaged therein can be triggered into motion at the instance of the court.
When any such order is passed by a court which has the jurisdiction to do so, it would not
be a proper exercise of revisional powers to interfere therewith because the further
investigation would only be for the ends of justice. After the further investigation, the
authority conducting such investigation can either reach the same conclusion and reiterate it or it
can reach a different conclusion. During such extended investigation, the officers can either act
on the same materials or on other materials which may come to their notice. It is for the
investigating agency to exercise its power when it is put back on that track. If they come to the
same conclusion, it is of added advantage to the persons against whom the allegations were
made, and if the allegations are found false again the complainant would be in trouble. So from
any point of view the Special Judge's direction would be of advantage for the ends of justice. It
is too premature for the High
40
Court to predict that the investigating officer would not be able to collect any further material at
all. That is an area which should have been left to the investigating officer to survey and recheck.

M/s India Carat Pvt Ltd v State of Karnataka 1989 SC

Context - The Appellant had filed a complaint with the Police for offences of criminal breach of
trust and cheating. The Chargesheet submitted by the Police stated that the offences were civil in
nature, and no criminal case was made out. The Magistrate rejected the conclusion drawn by the
Police and took cognizance on the facts present in the chargesheet under s190(1)(b). The HC set
aside the order and an appeal was made to the SC.
Held - The Court is not bound by the conclusions made in a police report or a private complaint.
Regardless of the conclusion, the Court can take cognizance of the facts present in a police report
under Section 190(1)(b). The Magistrate is also empowered to direct further investigation under
Section 156(3) CrPC.

Abhinandan Jha v Dinesh Mishra 1967 SC

Context - The question that arose here is whether upon a protest petition against a final report,
which concludes that no offence has been committed, the Magistrate can direct a “chargesheet”
to be filed against an accused.
Held - The Magistrate is not bound by the police report. The Magistrate may reject the
conclusions and take cognizance on the facts alleged or direct further investigation. However,
making a final report against a person is entirely in the remit of the Police. The Magistrate cannot
direct that a chargesheet be made against a particular person.
Excerpts -
12. Though it may be that a report submitted by the police may have to be dealt with
judicially, by a Magistrate, and although the Magistrate may have certain supervisory
powers, nevertheless, we are not inclined to agree with the further view that from these
considerations alone it can be said that when the police submit a report that no case has
been made out for sending up an accused for trial, it is open to the Magistrate to direct the
police to file a charge-sheet. But, we may make it clear, that this is not to say that the
Magistrate is absolutely powerless, because, as will be indicated later, it is open to him to take
cognizance of an offence and proceed, according to law. We do not also find any such power,
under Section 173(3), as is sought to be inferred, in some of the decisions cited above. As we
have indicated broadly the approach made by the various High Courts in coming to different
conclusions, we do not think it necessary to refer to those decisions in detail.
17. … There is no express power, so far as we can see, which gives jurisdiction to pass an order
of the nature under attack nor can any such powers be implied. There is certainly no obligation,
on the Magistrate, to accept the report, if he does not agree with the opinion formed by the
police. …

41
Therefore, these circumstances will also clearly negative the power of a Magistrate to call for a
charge-sheet from the police, when they have submitted a final report. The entire scheme of
Chapter XIV clearly indicates that the formation of the opinion, as to whether or not there is a
case to place the accused for trial, is that of the officer in-charge of the police station and that
opinion determines whether the report is to be under Section 170, being a ‘charge-sheet’, or
under Section 169, ‘a final report’. It is no doubt open to the Magistrate, as we have already
pointed out, to accept or disagree with the opinion of the police and, if he disagrees, he is entitled
to adopt any one of the courses indicated by us. But he cannot direct the police to submit a
charge-sheet, because, the submission of the report depends upon the opinion formed by the
police, and not on the opinion of the Magistrate. The Magistrate cannot compel the police to
form a particular opinion, on the investigation, and to submit a report, according to such opinion.
Thai will be really encroaching on the sphere of the police and compelling the police to form an
opinion so as to accord with the decision of the Magistrate and send a report either under Section
169, or under Section 170, depending upon the nature of the decision. Such a function has been
left to the police under the Code.

Ajay Khandelwal v State 2003 DHC

Context - A complaint was made against the petitioner which asked for a direction of police
investigation under s156(3). The Magistrate directed the same and the Police submitted a report.
The Magistrate refused to act on the police report but issued summons to the petitioner on the
basis of the original complaint itself.
Held - It is not proper to take cognizance on the complaint itself pursuant to which a police
investigation has been directed without taking note of the police report.

Nallakannu v State 2007 Mad HC

Context - In the trial of a murder case, the facts showed that several persons were involved.
However, only one of them was made an accused and convicted by the Trial Court. In appeal, the
High Court observed that the Trial Court ought to have proceeded under Section 319 CrPC to try
the other persons with the accused. The HC directed “re-investigation” of the matter by the
Police. In appeal, the Supreme Court held that the HC in appeal had no power to direct “re-
investigation” post the conviction of an accused. At most, the HC could only have made a
direction for a de novo trial against the other persons under Section 319. In the present case
before the HC, the question was whether a de novo trial should be directed under Section 319
against the other persons.

Held - There is evidence against the other persons that they were involved in the offence for
which the accused was convicted. Further, there is some mala fide on behalf of the investigating
agency for dropping the names of these persons when a chargesheet was presented. Therefore, a
de novo trial must be initiated against the other persons.

42
Excerpt (I am focusing on the part where the SC held that re-investigation could not be
ordered post conviction) -
11. In the judgment of the appeals on the file of the Hon'ble Apex Court, it was observed that

“the High Court was not correct in issuing a direction to the State to take advice of the
State Public Prosecutor as to under what Section the appellant has to be charged and tried
or directing the CBCID to take up the matter and re-investigate and prosecute the
appellant herein. Such a power does not come within the purview of Section 482 of the
Code of Criminal Procedure. Investigation of an offence is a statutory power of the
police. The State in its discretion may get the investigation done by any agency unless
there exists an extraordinary situation. Yet again, it is for the public prosecutor to
discharge his duties in terms of the provisions of the Code of Criminal Procedure. The
High Court, thus has no role to play in such matters. Ordinarily, it is for the public
Prosecutor himself to see to whom and how to render his advice or as to whether the
State would like to proceed against an accused or not…… It went beyond its jurisdiction
in directing the prosecution of the appellant before us……”.

Vinubhai Haribhai Malaviya v State of Gujarat 2019 SC

Context - The appellant made an application u/s 173(8) for further investigation at the stage of
summons, but before the charge was framed. The application was rejected. While the Sessions
Court allowed the investigation, the HC said that investigation cannot be ordered after the stage
of cognizance. The matter was appealed to the SC.
Held - Investigation under Section 173(8)/156(3) CrPC can be directed at any stage before the
trial starts, i.e. before the framing of charge.

IX. 313 Examination

Notes:
When does Section 313 operate?

Summons cases – Section 254 deals with both Prosecution and Defence evidence – 313 cuts
across 254
Warrants cases – 242 deals with Prosecution evidence, 243 deals with Defence evidence – 313
operates after 242 before 243
Sessions cases – 231 deals with Prosecution evidence, 232 deals with Defence evidence – 313
operates after 231 along with 232
Summary Trials – no stage per se, 313 operates at some point after Prosecution evidence.

43
Why 313? Article 20(3) provides that you cannot be witness and cannot be criminalized for not
telling the truth. Hence the accused is not on oath at this stage. So the court should only use this
statement to confirm or reject the state’s version and not to convict him. In Nirbhaya one accused
in 313 said I was in church. Prosecution moved a 311 for introducing the priest to say that there
was no function in the church.
In another rape case in a 313 accused said that I did not do it, she was not there but in the police
station. It was not accepted. On appeal they moved a section 391 and then records from the
police station were called and they were acquitted.

Sharad Birdhi Chand Sarda vs State Of Maharashtra

Point: Case speaks about dealing with circumstantial evidence. In the context of 313 - Any
circumstances which are not put to the accused in a 313 examination has to be completely
excluded from consideration.
Extracts:

We then pass on to another important point which seems to have been completely missed by the
High Court. It is well settled that where on the evidence two possibilities are available or
open, one which goes in favour of the prosecution and the other which benefits an accused,
the accused is undoubtedly entitled to the benefit of doubt. In Kali Ram v. State of Himachal
Pradesh,(l) this Court made the following observations:
143. Apart from the aforesaid comments there is one vital defect in some of the circumstances
mentioned above and relied upon by the High Court, viz., circumstances Nos.
4,5,6,8,9,11,12,13,16, and 17. As these circumstances were not put to the appellant in his
statement under s.313 of the Criminal Procedure Code they must be completely excluded
from consideration because the appellant did not have any chance to explain them. This has
been consistently held by this Court as far back as 1953 where in the case of Fateh Singh Bhagat
Singh v. State of Madhya Pradesh(1) this Court held that any circumstance in respect of which
an accused was not examined under s. 342 of the Criminal procedure code cannot be used
against him ever since this decision. there is a catena of authorities of this Court uniformly taking
the view that unless the circumstance appearing against an accused is put to him in his
examination under s.342 of the or s.313 of the Criminal Procedure Code, the same cannot be
used against him. In Shamu Balu Chaugule v. State of Maharashtra(2) this Court held thus:
145. It is not necessary for us to multiply authorities on this point as this question now
stands concluded by several decision of this Court. In this view of the matter, the
circumstances which were not put to the appellant in his examination under s.313 of the
Criminal Procedure Code have to be completely excluded from consideration.

United Phosphorus Ltd. v. Sunita Narain

44
313 proviso - 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).
Context: Defamation complaint under 499, 500 for a publication. The article spoke about
United Phosphorus being a notoriously polluting unit owned by the brother of Dawood Ibrahim.
Sunita applied for a permanent exemption under 205 - she never appeared after appearing for
summons. Prosecution evidence takes place and then cross takes place. She then makes an
application for exemption from personal appearance for 313 examination and allowing it to be
done in writing in response to a questionnaire provided by the Court. This was for reasons of
extensive personal commitments as the editor of a magazine and social activist. Trial Court
passed an order exempting her. This order is being challenged by the complainant.
Point: 313(b) provides that the Court ‘shall’ examine the accused after prosecution evidence. In
this case the court held that the word ‘shall’ is to be interpreted as obligatory and it must be
complied with for the benefit of the accused. If it works to his disadvantage, the Court may adopt
measures to achieve 313 requirements in a substantial manner. Appearance or non-appearance of
the accused does not prejudice the complainant in any way and so cannot be allowed to
complain. The complaint for non-compliance can only be brought by the accused because it
prejudices only the accused. This is a summons trial case where the Court even has the power
exempt examination under 313, therefore it would be irrational to hold that the court does not
have the power to grant exemption from personal appearance.
Notes: For summons cases - personal appearance may be waived – the accused must give a
written statement that compliance with 313 by written statement will not cause him prejudice.
This cannot be done away with.
What you state in cross on prosecution evidence and under 313 must be consistent with the
defence evidence you will give next. It’s your chance to tie up all that is said by the police in its
evidence and this would lead to the defence you make during leading defence evidence. Hence in
313 - you should not be just saying yes/no - it should be nuanced and consistent.

45
X. Revision, Appeal, Quashing
Notes: The scope of 397 – “correctness, legality or propriety of any finding, sentence or
order”. After exercising right under 397 for revision, you cannot make a further application
under 401. Power of the HC under 401 is slightly broader – it can exercise its power of appeal.
Next issue under 397 - Locus - Anybody can file a 397, does not need to be a victim or a party -
look at how the section is worded. See Shivananda Paswan. On the other hand in an appeal, only
the state, complainant, or accused can file an Appeal.
397(2) bars revision with respect to interlocutory orders - example of interlocutory orders -
Sunita Narain not appearing, etc.

KK Patel v. Gujarat
Context: Respondent was a DSP and filed a complaint against two police officers. DSP was
arrested for kidnapping and then the alleged kidnapped person appeared – DSP was released on
bail. DSP is bringing a complaint against police officers for making a false complaint against
him.
Issue of process. Officers made application for discharge – should be dismissed because prior
sanction had not been obtained to prosecute them. Magistrate rejected application in an order.
Appellants filed revision in Sessions Court against this order – plus added an additional point
that according to the Bombay Police Act there was a limitation period of one year to bring
complaint, which had passed.
Sessions court: Quashed the issue of process and dismissed the complaint, in revision.

HC: Magistrate order was interlocutory, Sessions Court should not have entertained review
jurisdiction. The Magistrate’s order did not conclude the issue raised before him and was
therefore necessarily an interlocutory order. Revision was thus not maintainable. Appeal to SC.
Point: The test for whether an order is interlocutory is “what if” – if the objections of the
party making the application being upheld leads to culmination/termination of the proceedings –
then the order is not an interlocutory order.
Extract:
11. “That apart, the view of the learned Single Judge of the High Court that no revision was
maintainable on account of the bar contained in Section 397(2) of the Code, is clearly
erroneous. It is now well neigh settled that in deciding whether an order challenged is
interlocutory or not as for Section 397(2) of the Code, the sole test is not whether such order
was passed during the interim stage. {vide Amar Nath vs. State of Haryana (1977 4 SCC 137);
Madhu Limaye vs. State of Maharashtra (1977 4 SCC 551); V.C. Shukla vs. State through CBI
(1980 2 SCR 380); and Rajendra Kumar Sitaram Pande vs. Uttam(1999 3 SCC 134)}. The
feasible test is whether by upholding the objections raised by a party, would it result in

46
culminating the

47
proceedings, if so any order passed on such objections would not be merely interlocutory in
nature as envisaged in Section 397(2) of the Code. In the present case, if the objection raised
by the appellants were upheld by the court the entire prosecution proceedings would have been
terminated. Hence, as per the said standard, the order was revisable.”
Notes: The case deals with what amounts to an interlocutory order.
Section 204 is also not an interlocutory order even though it leads to continuance of proceedings.
Because if you challenge 204 under 397 successfully, it will result in termination of the
proceedings (essentially effect of 203). Hence the test is “what if”. Orders on the question of
limitation – same principle. Another example is section 45, UAPA which requires independent
sanction from Government for taking cognisance of an offence. If an order allowing charges is
challenged under revision, then the proceedings terminate. Regardless of whether the order was
in favour of the accused or against. [Also recall VK Jain, Arun Poorie, and Urmila Devi]
In case of interlocutory orders that are prejudicial to a party – remedy under Section 482.

Krishnan v. Krishnaveni
Context: Case of cheating (warrants). The accused was discharged. The complainant filed
revision petition to Sessions Court which was dismissed. Then filed revision before HC which
was allowed and the order of the Magistrate discharging the accused was vacated. Special leave
appeal to SC by accused.
Point: The intent behind the bar on 397(3) is to prevent multiple revision proceedings. However,
when the High Court finds that there is a “grave miscarriage of justice or abuse of process”
then inherent powers may be exercised. This is the standard laid down by the Court.
Extract:

10. Ordinarily, when revision has been barred by Section 397(3) of the Code, a person
accused/complainant - cannot be allowed to take recourse to the revision to the High Court
under Section 397 (1) or under inherent power of the High Court under Section 482 of the
Code since it may amount to circumvention of the provisions of Section 397 (3) or section
397(2) of the Code. It is seen that the High Court has suo motu power under Section 401 and
continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court
on examination of the record finds that there is grave miscarriage of justice or abuse of
process of the courts or the required statutory procedure has not been complied with or
there is failure of justice or order passed or sentence imposed by the Magistrate requires
correction, it is but the duty of the High Court to have it corrected at the inception lest
grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to
prevent abuse of the process that the High Court is preserved with inherent power and would be
justified, under such circumstance, to exercise the inherent power and in an appropriate
case even revisional power and in appropriate case even revisional power under Section
397 (1) read with Section

48
401 of the Code. As stated earlier, it may be exercised sparingly so as to avoid needless
multiplicity or procedure, unnecessary delay in trial and protraction of proceedings. The
object of criminal trial is to render public justice, to punish the criminal and to see that the trial is
concluded expeditiously before the memory of the witness fades out. The recent trend is to delay
the trial and threaten the witness or to win over the witness by promise or inducement. These
malpractices need to be curbed and public justices can be ensured only when expeditious trial is
conducted.
Notes: This seems to be a residuary power, but it cannot be exercised if there exists an alternate
specific power which can be exercised in the statue.

State of Haryana v. Bhajanlal

Point: Gave a non-exhaustive list of instances where 482 power could be exercised.
Extract:
102. In the exercise of the extraordinary power under Article 226 or the inherent powers under
Section 482 of the Code of Criminal Procedure, the following categories of cases are given by
way of illustration wherein such power could be exercised either to prevent abuse of the
process of any Court or otherwise to secure the ends of justice, though it may not be possible to
lay down any precise, clearly defined and sufficiently channelised and inflexible guide- ï7 myriad
kinds of cases wherein such power should be exercised:
(a) where the allegations made in the First Information Report or the complaint, even if they
are taken at their face value and accepted in their entirety do not prima facie constitute any
offence or make out a case against the accused;
(b) where the allegations in the First Information Report and other materials, if any,
accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by
police officers under Section 156(1) of the Code except under an order of a Magistrate within the
purview of Section 155(2) of the Code;
(c) where the uncontroverted allegations made in the FIR or 'complaint and the evidence
collected in support of the same do not disclose the commission of any offence and make out a
case against the accused;
(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a
non-cognizable offence,no investigation is permitted by a police officer without an order of a
Magistrate as contemplated under Section 155(2) of the Code;
(e) where the allegations made in the FIR or complaint are so absurd and inherently
improbable on the basis of which no prudent person can ever reach a just conclusion that there
is sufficient ground for proceeding against the accused;

49
(f) 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 institu- tion and
continuance of the proceedings and/or where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly attended with mala fide and/or where the
proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to private and personal grudge. [305D-H; 306A-E]
Notes:
(a) – Example – Disha Ravi case
(f) - 197 – prosecution of judges – requires sanction of government)

Other examples: 202 inquiry was not held – Vijhu Dhanuka.

Assuming that the allegation is taken to be correct – still the offense of defamation is not made out

Explanation for (c): Chargesheet and evidence read together does not make out the offense.
Stage is different.

Zandu Pharmaceuticals v. Mohd. Sharaful Haq

Context: Case under Section 406 + 409 IPC (Cheating). Accused made an application under 482
to HC on the basis that complainant had suppressed material facts and that limitation had
expired. The HC rejected the petition. The SC held that the HC had erred in rejecting the
petition. The HC had wrongly held that the case was not barred by limitation and it was not a
case where the period was extended for reasons under section 473. The SC held that the
complaint was a clear abuse of process and 482 should have been exercised. The proceedings
were therefore quashed.

9. In R. P. Kapur v. State of Punjab (AIR 1960 SC 866) this Court summarized some categories
of cases where inherent power can and should be exercised to quash the proceedings.
(i) where it manifestly appears that there is a legal bar against the institution or continuance
e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face value
and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the
evidence adduced clearly or manifestly fails to prove the charge.

50
10. In dealing with the last case, it is important to bear in mind the distinction between a case
where there is no legal evidence or where there is evidence which is clearly inconsistent with
the accusations made, and a case where there is legal evidence which, on appreciation, may or
may not support the accusations. When exercising jurisdiction under Section 482 of the Code,
the High Court would not ordinarily embark upon an enquiry whether the evidence in question is
reliable or not or whether on a reasonable appreciation of it accusation would not be sustained.
That is the function of the trial Judge. Judicial process should not be an instrument of
oppression, or, needless harassment. Court should be circumspect and judicious in exercising
discretion and should take all relevant facts and circumstances into consideration before
issuing process, lest it would be an instrument in the hands of a private complainant to
unleash vendetta to harass any person needlessly. At the same time the section is not an
instrument handed over to an accused to short-circuit a prosecution and bring about its sudden
death. The scope of exercise of power under Section 482 of the Code and the categories of cases
where the High Court may exercise its power under it relating to cognizable offences to prevent
abuse of process of any court or otherwise to secure the ends of justice were set out in some
detail by this Court in State of Haryana v. Bhajan Lal (1992 Supp (1) 335). A note of caution
was, however, added that the power should be exercised sparingly and that too in rarest of rare
cases
Notes: The Court cited RP Kapur v. Punjab on three categories where 482 can and should be
exercised (para 9 above) – of these 1 and 2 were already covered by Bhajan Lal but the 3rd one
was recognised in this case. It is an important category – where the case exists by there is no
legal evidence or where there is evidence but it is clearly inconsistent with the accusations made.
The last category does not include cases where there is legal evidence which may or may not
support the case.

Chandrappa v. State of Karnataka

Context: Case under 302 and 149 – murder and being a member of an unlawful assembly. In
appeal, the High Court reversed the order of acquittal by finding that all contradictions and
variations were minor in nature. Appeal to the Supreme Court. The question in this case was the
scope of 378 – the power of an appellate court in an appeal against an order of acquittal.
Points:

1. In the case of an acquittal there is a double presumption in favour of the accused

a. Presumption of innocence

b. Having secured an acquittal this presumption is reinforced, reaffirmed and

strengthened by the trial court.
2. The Court examines multiple judgements on the scope of appellate power in this
regard and lay down 5 principles:

51
“42. From the above decisions, in our considered view, the following general principles
regarding powers of appellate Court while dealing with an appeal against an order of acquittal
emerge;
(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon
which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on
exercise of such power and an appellate Court on the evidence before it may reach its own
conclusion, both on questions of fact and of law;
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient
grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not
intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such
phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of
an appellate Court to interfere with acquittal than to curtail the power of the Court to review the
evidence and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the presumption of innocence available to him
under the fundamental principle of criminal jurisprudence that every person shall be presumed
to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused
having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed
and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the
appellate court should not disturb the finding of acquittal recorded by the trial court.”

A&B v. State
FIR registered against the accused (married couple) for public obscenity (kissing). Defence
version is that it was fabricated by their lawyer and police to coerce them into paying bribe.
Made application for seeking quashing of proceedings.
The Court passed an interim order observing that the FIR even when taken on face value would
not attract the offence of “obscenity”. An enquiry by the Special Commissioner also revealed
that ‘annoyance to the public’ as an ingredient had not been met.
The High Court in this order quashed all proceedings.

XI. Discharge
Ajoy K. Ghose v. St. of Jharkhand, (2009) 14 SCC 115
Facts/Context -

52
 ● Complaint Made by court under S 195, 340 CrPC
● Warrants Case instituted otherwise than on a police report - Court of Magistrate.

● In a previous appeal, the SC granted the liberty to file a discharge application. Dismissal
of the Discharge application filed under S 245(2) before the Trial Court. Writ Petition
dismissed by the HC, comes to the SC by way of SLP. Argued in the SC that neither the
Trial Court nor HC considered the questions raised in the discharge application.
Issues -
1. Distinction between S 245(1) and S 245(2)

2. Could the Trial Court frame charges immediately after dismissing a discharge application
filed under S 245(2), ie. before hearing evidence under S 244(1).
Held -

1. In a Warrants case instituted otherwise than on a police report, the

prosecution/complainant gets two opportunities to lead evidence -
a. Before the charge is framed under S 244(1). Importantly, this is also before the
Discharge Application is heard under S 245(1).
b. After the charge is framed under S 246(1).
2. While under S 245(1), the magistrate decides the discharge application with the benefit of
the evidence led under S 244(1), a discharge application under S 245(2) can be made at
‘any previous stage of the case’, on the ground that the charge is groundless.
3. Any previous stage - Between S 200 and S 204 of CrPC, ie. before evidence is taken
under S 244(1).
4. S 246(1) allows the Trial Court to frame charges ‘at any previous stage of the case’. Held
that given the different impacts of 245(2) and 246(1), ‘any previous stage’ needs to be
interpreted differently, and for framing of charge under 246(1), some evidence must be
led. Further, allowing framing of charges before S 244(1) will take away the accused’s
right to cross examine.
5. Therefore held that as charge was framed before evidence was heard under S 244(1),
such was premature.
Extracts -
24. Now, there is a clear difference in Sections 245(1) and 245(2) of the Cr.P.C. Under Section
245(1), the Magistrate has the advantage of the evidence led by the prosecution before him
under Section 244 and he has to consider whether if the evidence remains unrebutted, the

53
conviction of the accused would be warranted. If there is no discernible incriminating material in
the evidence, then the Magistrate proceeds to discharge the accused under Section 245(1) Cr.P.C.
25. The situation under Section 245(2) Cr.P.C. is, however, different. There, under sub-Section
(2), the Magistrate has the power of discharging the accused at any previous stage of the case,
i.e., even before such evidence is led. However, for discharging an accused under Section 245
(2) Cr.P.C., the Magistrate has to come to a finding that the charge is groundless. There is
no question of any consideration of evidence at that stage, because there is none. The
Magistrate can take this decision before the accused appears or is brought before the Court
or the evidence is led under Section 244 Cr.P.C. The words appearing in Section 245(2)
Cr.P.C. "at any previous stage of the case", clearly bring out this position. It will be better to see
what is that "previous stage".
51. The right of cross-examination is a very salutary right and the accused would have to be
given an opportunity to cross-examine the witnesses, who have been offered at the stage of
Section 244(1) Cr.P.C. The accused can show, by way of the cross-examination, that there is no
justifiable ground against him for facing the trial and for that purpose, the prosecution would
have to offer some evidence. While interpreting this Section, the prejudice likely to be
caused to the accused in his losing an opportunity to show to the Court that he is not liable
to face the trial on account of there being no evidence against him, cannot be ignored.
53. Now, coming to the facts of this case, it is clear that the opportunity to the accused to
cross-examine the witnesses is lost, as the Trial Court has straightaway proceeded to frame
the charge. In that view, we would have to quash the order, framing the charge. It is
accordingly, quashed. The matter will now go back before the Trial Court, where the
prosecution may offer the witnesses under Section 244(1) Cr.P.C. and the opportunity to cross-
examine, would be offered to the accused. It is only thereafter, that the Trial Court would
proceed to decide as to whether the charge is to be framed or not. The charge framed in this case
is clearly premature, in view of the reasons given by us. The order framing the charge would,
therefore, have to be set aside.

St. of Orissa v. Debendra Nath, (2005) 1 SCC 568

Issue -

1. What is the meaning of ‘record of the case and the documents submitted therewith, and
after hearing the submissions of the accused and the prosecution in this behalf’ under S
227?
Held -

1. The meaning of ‘record of the case and the documents submitted therewith’ is derived
from a joint reading of S 209(c) and S 227. Hence only the material produced by the
prosecution

54
 at the time of committing the case will be examined. The accused is not allowed to file any
additional documents.
2. Allowing the accused to file documents at the 227 stage would lead to a mini trial with
the accused adducing evidence putting forth their defense. Such roving and fishing
enquiries cannot be allowed.
3. Hence the court can only hear the submissions of the accused on the record of the case at
the S 227 stage.
Extracts -
8. What is to the meaning of the expression 'the record of the case' as used in Section 227 of the
Code. Though the word 'case' is not defined in the Code but Section 209 throws light on the
interpretation to be placed on the said word. Section 209 which deals with the commitment of
case to Court of Session when offence is triable exclusively by it, inter alia, provides that when it
appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall
commit 'the case' to the Court of Session and send to that court 'the record of the case' and the
document and articles, if any, which are to be produced in evidence and notify the Public
Prosecutor of the commitment of the case to the Court of Session. It is evident that the record
of the case and documents submitted therewith as postulated in Section 227 relate to the
case and the documents referred in Section 209. That is the plain meaning of Section 227 read
with Section 209 of the Code. No provision in the Code grants to the accused any right to file
any material or document at the stage of framing of charge. That right is granted only at the stage
of the trial.
16. All the decisions, when they hold that there can only be limited evaluation of materials and
documents on record and sifting of evidence to prima facie find out whether sufficient ground
exists 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 decisions
proceed on the basis of settled legal position that the material as produced by the
prosecution alone is to be considered and not the one produced by the accused. The latter
aspect relating to the accused though has not been specifically stated, yet it is implicit in the
decisions. It seems to have not been specifically so stated as it was taken to be well settled
proposition. This aspect, however, has been adverted to in State Anti-Corruption Bureau,
Hyderabad and Another v. P. Suryaprakasam [1999 SCC (Crl.) 373] where considering the scope
of Sections 239 and 240 of the Code it was held that at the time of framing of charge, what the
trial court is required to, and can consider are only the police report referred to under Section 173
of the Code and the documents sent with it. The only right the accused has at that stage is of
being heard and nothing beyond that (emphasis supplied).
18. We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is
misplaced. The scheme of the Code and object with which Section 227 was incorporated and

55
Sections 207 and 207 (A) omitted have already been noticed. Further, at the stage of framing of
charge, roving and fishing inquiry is impermissible. If the contention of the accused is
accepted, there would be a mini trial at the stage of framing of charge. That would defeat the
object of the Code. It is well-settled that at the stage of framing of charge the defence of the
accused cannot be put forth. The acceptance of the contention of the learned counsel for the
accused would mean permitting the accused to adduce his defence at the stage of framing
of charge and for examination thereof at that stage which is against the criminal
jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused
may have to be examined at the stage of framing of charge if the contention of the accused is
accepted despite the well settled proposition that it is for the accused to lead evidence at the trial
to sustain such a plea. The accused would be entitled to produce materials and documents in
proof of such a plea at the stage of framing of the charge, in case we accept the contention put
forth on behalf of the accused. That has never been the intention of the law well settled for over
one hundred years now. It is in this light that the provision about hearing the submissions of
the accused as postulated by Section 227 is to be understood. It only means hearing the
submissions of the accused on the record of the case as filed by the prosecution and
documents submitted therewith and nothing more. The expression 'hearing the
submissions of the accused' cannot mean opportunity to file material to be granted to the
accused and thereby changing the settled law. At the state of framing of charge hearing the
submissions of the accused has to be confined to the material produced by the police.
Point in class -
The material referred to under S 227, while on a plain reading looks wider than that which may
be considered under S 239, is actually the same.

All Cargo Movers v. Dhanesh Badarmal Jain

Context: The case was under Sections 406 (criminal breach of trust) and 420 (cheating).The
allegation was that the appellants had caused the delivery of the goods without presentation of
the bills of lading. The High Court dismissed the application for quashing the issue of summons.
The reasons were
- The allegations prima facie disclosed the offence of breach of trust
- No reason to examine documents and defences of the accused to find out whether
Appeal to SC
Point:
The Supreme Court looked at different letters and notices issued by the Plaintiff at various times
about the delivery of goods, and found that these documents do not disclose any criminal act on
behalf of the accused, only on behalf of the carriers of the goods and their agents. While it is true

56
that the court would not consider defence of the accused under 482, there is no absolute br on
consideration of admitted documents in exercising inherent jurisdiction.

Extract:
16. We are of the opinion that the allegations made in the complaint petition, even if given face
value and taken to be correct in its entirety, do not disclose an offence. For the said purpose,
This Court may not only take into consideration the admitted facts but it is also permissible to
look into the pleadings of the plaintiff-respondent No.1 in the suit. No allegation whatsoever was
made against the appellants herein in the notice. What was contended was negligence and/or
breach of contract on the part of the carriers and their agent. Breach of contract simplicitor
does not constitute an offence. For the said purpose, allegations in the complaint petition must
disclose the necessary ingredients therefor. Where a civil suit is pending and the complaint
petition has been filed one year after filing of the civil suit, we may for the purpose of finding out
as to whether the said allegations are prima facie cannot notice the correspondences exchanged
by the parties and other admitted documents. It is one thing to say that the Court at this juncture
would not consider the defence of the accused but it is another thing to say that for exercising the
inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents.
Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an
abuse of the process of the Court. Superior Courts while exercising this power should also strive
to serve the ends of justice.

Suryalakshmi Cotton Mills v. Rajvir Industries Ltd.

Context – Case of fraudulent use of blank cheques. The Appellant made a complaint and an FIR
was then directed to be filed. The Respondents made an application under 482 to quash the FIR
and also filed a complaint petition against the appellant under section 138, Negotiable
Instruments Act. The HC allowed this quashing application. The basis was that the proceedings
had been started only to harass the accused and prevent them from filing a case under 138.
Finally, the Supreme Court set aside the HC’s order quashing the proceedings.
Point – The general rule is that the defence of an accused or questions of fact must not be
considered under 482. However, this does not mean that documents of an unimpeachable
character cannot be considered at any cost to find out whether the criminal proceedings would
amount to an abuse of process of court. In this case the Court found that the High Court had gone
into various questions of fact.
Excerpts:
22. Ordinarily, a defence of an accused although appears to be plausible should not be taken
into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage
would not ordinarily enter into a disputed question of fact. It, however, does not mean that
documents

57
of unimpeachable character should not be taken into consideration at any cost for the purpose
of finding out as to whether continuance of the criminal proceedings would amount to an
abuse of the process of Court or that the complaint petition is filed for causing mere
harassment to the accused. While we are not oblivious of the fact that although a large number
of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed
only for achieving the ultimate goal namely to force the accused to pay the amount due to the
complainant immediately. The Courts on the one hand should not encourage such a practice;
but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding
which is otherwise genuine. The Courts cannot also lose sight of the fact that in certain matters,
both civil proceedings and criminal proceedings would be maintainable.

32. We cannot also lose sight of the fact that the respondents were keeping watch over the
matter. As soon as a first information report was lodged, a notice was immediately sent. A
quashing application was filed within a few days for the lodging of the first information report.
The investigation was not allowed to take place at all. Whereas it would have been the duty of
the Court to uphold and/or to protect the personal liberty of an accused in a case; but where
the first information report prima facie discloses commission of a cognizable offence, the High
Court, ordinarily, shall not have interfered with investigation thereof by the statutory
authority. We, therefore, allow the appeal in part.

XII. Abatement/Substitution of Complainant on Death

Tripuraneni S. Prasad v. St. of AP, 2006 SCC OnLine AP 96
Context -
Case instituted under S 138 NI Act, which is a non -cognisbale summons case instituted on a
private complaint. On the death of the complainant, by court order the complainant's son was
substituted as the complainant without notice to the accused. Hence the above petition under S
482 CrPC.
Issues -

Did the death of the complainant bring the proceedings to an end, or whether the complainant
could be substituted by his son. Was the order of the court to this effect valid?
Held -

● The death of the complainant does not ipso facto bring to an end the proceedings, and
could be continued by the son.
● The court relied on Ashwin Nanubhai Vyas v. State of Maharashtra, which stated that a
mother of a deceased complainant could continue prosecution after the death of her
daughter under Section 495 of the old code (302 CrPC).

58
 ● The court also relied on Jimmy Jahangir Madan v. Bolly Cariyappa Hindley which stated
that the application under S 302 must be filed by the deceased of the complainant, and
not the power of attorney holders.
Extracts -
9. Thus, the Supreme Court held that the mother of the deceased complainant can carry on the
prosecution after the death of her daughter under Section 495 of the old Code.
10. Section 495 of the Code of Criminal Procedure, 1898 corresponds to Section 302, Code of
Criminal Procedure, 1973. The above ruling was followed by the Supreme Court in Jimmy
Jahangir Madan v. Bolly Cariyappa Hindley (dead) by LRs. . The question before Their
Lordships was whether the heirs of the complainant can be allowed to file an application under
Section 302, Cr.P.C. to continue the prosecution. While confirming the principle laid down in
Ashwin Nanubhai Vyas case (supra), on facts of the said case, the Apex Court held that the heirs
themselves have not filed the application to continue the prosecution, rather the same has been
filed by the power of attorney holders and such course is not permissible.
15. Thus, in view of the clear legal position, as stated above, the objection that the son of the
deceased cannot come on record and continue the prosecution cannot be sustained. The point is
answered accordingly holding that the proceedings in C.C. Nos. 230 of 2004 and 264 of 2004
ipso facto do not come to an end and could be continued by the son of the deceased.
Point in class -
Jimmy Jahangir Madan is used to argue that the right to continue after the death of the
complainant does not arise, but that's not what the case says. It rather states that the right did not
survive there because the correct party did not file such an application.
Further, while Ashwin Nanubhai Vyas is often cited, it is rare that there is a challenge to an
application under S 302 CrPC.

Ashok Kumar v. Abdul Latif, 1989 SCC OnLine J&K 29

Context -
Complainant died during proceedings under S 323, 427 and 451 RPC. Complainant’s son filed a
petition to continue prosecution under S 495 of the Old Code. The Trial Court ordered the
prosecuting officer to continue proceedings. However case was later dismissed on grounds of
lack of complaint. Revision petition.
Held -

Unless the court expressly states what is to happen, the power under S 495 Old Code to
substitute is always available. The trial court in not doing so overlooked the petitioner’s
application as well as its own order. The death of the complainant does not ipso facto terminate
criminal proceedings.

59
Extracts -
5. We need not analyse those cases because, in our opinion, unless the Code itself says what
is to happen, the power of the Court to substitute another prosecution agency (subject to
such restrictions as may be found) under S. 495, Cr. P.C. is always available.
6. I am in full agreement with the view taken by the Calcutta High Court that the death of the
complainant cannot ipso facto bring about the termination of the criminal proceedings the
in the case, the Magistrate is authorized to exercise his Power under S. 495, Cr. P.C. by
substituting another person or prosecution agency for the conduct of the criminal case. The
trial Court in this case appears to have overlooked the application of the petitioner and its own
order dated 26-11-1984 by which the Prosecuting Officer was directed to duct the case on behalf
of the complainant.

Kaushal Talukdar v. Chandra Goenka, 2004 SCC OnLine Gau 130

Issue -
1. What is the extent of the application of S 256(1) and its proviso in cases of death of a
complainant, per Section 256(2).
2. Here, in a summons triable offense, can a magistrate allow a complaint to continue on
grounds that the pleader is representing a complainant after the complainant’s death. If
so, in what capacity is such representation made?
Held -
1. The usage of ‘so far as may be’ under S 256(2) clarifies that S 256(1) and its proviso
shall be applied, to the extent possible, even when the complainant's absence is on
account of his death.
2. When a complainant dies, the pleader is no longer the agent of the complainant.
However, even in such cases the magistrate may allow the pleader to represent the
complainant under S 302, however not as the complainant’s agent, but as ‘any person’
given the magistrate’s permission under S 302.
Extracts -

32. While considering the above aspect of the matter, it is worth noticing that the expression "so
far as may be," occurring in Sub-section (2) of Section 256, is of considerable importance, for,
the expression, so used, makes it clear that the provisions of Sub-section (1) of Section 256
including the proviso thereto, which lay down the various conditions In which the absence of
the complainant, on account of reasons other than his death, may not ipso facto result into
acquittal of the accused, shall be applied, to the extent possible, even when the
complainant's absence is on account of his death. In other words, the provisions of Section
256(1) and the

60
proviso thereto do not apply, in their entirety, to a case, where the complainant, in a summons
case, dies after the summons has been issued to the accused.
34. The question, therefore, which, now, arises is this: If the absence of the complainant is
on account of his death, can the Magistrate allow the summons case to proceed merely on
the ground that the deceased-complainant is represented by his pleader or by an officer
conducting the prosecution? In order to correctly appreciate the question as to whether a
pleader appointed by a complainant, in a summons triable case, can continue to represent the
deceased- complainant as the deceased-complainant's pleader, one has to understand the nature
of the relationship between a party and his pleader.
39. What logically follows from the above discussion is that when a complainant dies, the
Magistrate cannot proceed with the case merely on the ground that the pleader, appointed by the
deceased-complainant, is present; but even in such a case, the Magistrate may, for the ends of
justice, allow a pleader, if the pleader is so willing, to represent the deceased-complainant in
terms of Section 302, Cr. P.C., for, Section 302, Cr. P.C. empowers the Magistrate to permit any
person to conduct the prosecution and the words "any person" would obviously include even a
pleader (See Ashwin Nanu Bhai Vyas v. State of Maharashtra, reported in (AIR 1967 SC 983).
However, the appearance of such a pleader, in the complaint case, would not be as a
pleader of the deceased-complainant, but as a person, who is permitted by the Magistrate
to conduct the prosecution. In other words, when the pleader conducts such a prosecution,
he does so on the basis of the permission given to him by the Magistrate in terms of Section
302, Cr.P.C. and not by virtue of his original appointment as pleader of the
complainant, for, his appointment as a pleader of the complainant, as indicated
hereinabove, ceases on the death of the complainant.

Rashida K. Syed v. Shaikh S. Mardan, (2007) 3 SCC

Issue -
Does the ratio of Ashwin Nanubhai allow continuation of prosecution only for sessions triable
offenses (which are of a more serious nature), or does it extend to offenses triable by the
magistrate?
Held -

Ashwin Nanubhai was decided based on the scheme of the code and not on the seriousness of the
offense. Further the offenses in the instant case, ie. S 406 and 420 IPC are also of a serious
nature. Hence it is open for the sons of the deceased complainant to apply for continuation of
proceedings.
Extracts -
The learned counsel for the appellants submitted that the ratio laid down in Ashwin Nanubhai
would not apply inasmuch as in that case the Court was concerned with offences punishable
under Sections 493 and 496 of IPC. They were then triable by a Court of Session. In the instant
61
case, we

62
are concerned with the case punishable under Sections 406 and 420 of IPC, triable by a
Magistrate of First Class. It was also stated that the Court had observed that the offences
punishable under Sections 493 and 496 were serious being punishable with imprisonment which
may extend to ten and seven years respectively.
In our opinion, the submission has no force and cannot be accepted. What was considered by this
Court in Ashwin Nanubhai was whether prosecution could be continued by any person other than
the complainant in view of bar of taking of cognizance under Section 198 of the Code.
So far as offences under Sections 406 and 420 are concerned, they are also serious in nature and
are punishable with imprisonment for three years and seven years respectively.
From the above case law, in our opinion, it is clear that on the death of Shaikh Saheblal, the case
did not abate. It was, therefore, open to the sons of complainant to apply for continuation of
proceedings against accused persons. By granting such prayer, no illegality has been committed
by the courts.

XIII. Quashing of Proceedings by High Court

Rajiv Thapar v. Madan Lal Kapoor
Context:
The petitioner-accused is the husband of the deceased Monica Thapar. She is a resident doctor
and has died within a year of her marriage. She was taken to the hospital on account of some
illness and was diagnosed with malaria. She is discharged from the hospital and then admitted
again after a few days. This time, she is diagnosed with a large hole in her heart. She succumbs
to a fatal heart attack in the hospital. Her body is brought to Delhi where the father of the
deceased, Madan Kapoor i.e., the respondent-complainant notices that her body is blue. He
suspected foul play and claims that his daughter had been poisoned by her husband and her
inlaws and filed a complaint. The body was then sent for an autopsy which concluded that there
was no poisoning. The respondent then filed a criminal complaint before the MM alleging
unnatural death. The MM summoned the accused. The appellant filed a petition under s. 482 of
the CrPC against the summoning order, but was dismissed. The MM committed the case to the
Sessions Court. The Sessions Judge found that there was no prima facie case made out and
discharged the accused. The HC set aside the order. Hence the appeal.
Offences Involved:

s. 498-A, 496, 304-B read with s. 120-B IPC

Issue:

63
Whether the HC has the jurisdiction under s. 482 of the CrPC to quash the initiation of the
prosecution against an accused at the stage of issuing process, or at the stage of committal, or
even at the stage of framing of charges?
Relevant provision:
482. Saving of inherent powers of High Court.—

Nothing in this Code shall be deemed to limit or affect the inherent powers of the High
Court to make such orders as may be necessary to give effect to any order under this
Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of
justice.
Held:
- The HC in exercise of its jurisdiction under s. 482 of the CrPC must make a just and
rightful choice. The accused would still have a chance to present his defence during the
trial but the prosecution is not allowed to substantiate its claim and quashing a proceeding
is akin to giving finality to the accusations.
- The HC has to be fully satisfied that the material presented by the accused is based on
sound, reasonable facts.
- The material relied upon must be of sterling and impeccable quality.

- In the instant case, there was autopsy report to show that there was no poisoning, there
were letters and other telephonic evidence to show that the husband and wife had cordial
relations. Material relied upon by the accused was sufficient to condemn the factual basis
of the accusation as false.
Extracts:
28. The High Court, in exercise of its jurisdiction under Section 482 CrPC, must make a just
and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the
allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a
stage for determining how weighty the defences raised on behalf of the accused are. Even if the
accused is successful in showing some suspicion or doubt, in the allegations levelled by the
prosecution/complainant, it would be impermissible to discharge the accused before trial. This is
so because it would result in giving finality to the accusations levelled by the
prosecution/complainant, without allowing the prosecution or the complainant to adduce
evidence to substantiate the same. The converse is, however, not true, because even if trial is
proceeded with, the accused is not subjected to any irreparable consequences. The accused
would still be in a position to succeed by establishing his defences by producing evidence in
accordance with law. There is an endless list of judgments rendered by this Court declaring the
legal position that in a case where the prosecution/complainant has levelled allegations bringing
out all ingredients of the

64
charge(s) levelled, and have placed material before the Court, prima facie evidencing the
truthfulness of the allegations levelled, trial must be held.
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the
following steps to determine the veracity of a prayer for quashment raised by an accused by
invoking the power vested in the High Court under Section 482 CrPC:
30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and
indubitable i.e. the material is of sterling and impeccable quality?
30.2. Step two: whether the material relied upon by the accused would rule out the assertions
contained in the charges levelled against the accused i.e. the material is sufficient to reject and
overrule the factual assertions contained in the complaint i.e. the material is such as would
persuade a reasonable person to dismiss and condemn the factual basis of the accusations as
false?
30.3. Step three: whether the material relied upon by the accused has not been refuted by the
prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the
prosecution/complainant?
30.4. Step four: whether proceeding with the trial would result in an abuse of process of the
court, and would not serve the ends of justice?
30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High
Court should persuade it to quash such criminal proceedings in exercise of power vested in it
under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would
save precious court time, which would otherwise be wasted in holding such a trial (as well as
proceedings arising therefrom) specially when it is clear that the same would not conclude in the
conviction of the accused.

Ahmad Ali Quraishi v. State of UP

Context:

The appellant-accused and the respondent belonged to the same family and were neighbours. The
father of the accused filed a civil suit against the complainant with respect to partition of
properties. This suit led to several quarrels between the parties. On one such incident, the police
initiated proceedings under s. 151, 107 and 116 CrPC. Application under s. 156(3) of the CrPC
was filed by the complainant against the accused alleging molesting his daughters. The Sessions
Judge considered the application and rejected it on the basis that no sufficient grounds existed to
register a case. The complainant filed a revision in the HC which was also rejected. The
application was also sent to the NHRC on whose direction the SP directed enquiry into the
complaint. The complainant then filed a complaint with the same allegations. The Sessions Judge
summoned the appellants. The appellant filed an application under s. 482 CrPC in the HC which
was dismissed. Hence the appeal.

65
Offences involved:
ss. 323, 353, 504, 506 of the IPC and s. 7, 8 of the POCSO
Issue:
Inherent jurisdiction of the HC under s. 482/art. 226 in quashing criminal proceedings
Held:
- A HC can quash proceedings if it comes to the conclusion that allowing the proceedings
to continue would be an abuse of the process of the court or that the ends of justice
require that the proceeding ought to be quashed.
- Mostly relied upon the principles laid down in Bhajan Lal to find the basis for quashing
proceedings.
- Took note of the fact that the parties were related and were neighbours. Civil dispute was
going on. There was not much material to believe in the allegations being raised.
- Was fully satisfied that the present case were initiated with an ulterior motive due to
private and personal grudges.
- The current case was identified as belonging to category (7) as laid down in the principles
in Bhajan Lal.
- HC failed to exercise its jurisdiction under s. 482. Appeal allowed.

Extracts:
Mostly relied on other cases, no particularly important paragraph which lays down the principle.
23. In the facts of present case, we are fully satisfied that present is a case where criminal proceedings
have been initiated by the complainant with an ulterior motive due to private and personal grudge. The High
Court although noticed the judgment of this Court in State of Haryana v. Bhajan Lal [State of Haryana v.
Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] in the impugned judgment but did not examine the
facts of the case as to whether present is a case which falls in any of the category as enumerated in Bhajan Lal
case [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] . The present case
clearly falls in Category (7) of Bhajan Lal case [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 :
1992 SCC (Cri) 426] and the High Court failed to exercise jurisdiction under Section 482 CrPC in quashing
the criminal proceeding initiated by the complaint.

State of Haryana v. Bhajan Lal

Context:

Bhajan Lal and Devi Lal (both respondents) belong to rival political parties. BL lost the election
against DL’s wife. On account of political rivalry, there was bad blood between BL and DL and
multiple criminal and civil cases. DL made a complaint agianst BL alleging possession of
property

66
disproportionate to his known sources of income. The complaint along with endorsements by the
DGP, SP and CM secretariat officer was registered by the SHO under s. 161 and 165 of the IPC
and s. 5(2) of the PCA. The SHO forwarded the FIR to the magistrate and took up investigation.
BL filed a writ under art. 226 and 227 seeking certiorari quashing FIR and prohibition to restrain
further investigation. The HC concluded allegations did not constitute a cognisable offense for
investigation and granted relief. Hence the appeal

Held:
- The order of the HC cannot be sustained both on law and facts. Hence the judgment is set
aside.
- The power of quashing a criminal proceedings should be exercised very sparingly and
with circumspection and that too in rarest of rare cases. The extraordinary or inherent
powers do not confer an arbitrary jurisdiction on the court. The court cannot be justified
in embarking upon an enquiry as to the reliability or genuineness or otherwise of the
allegations made in the FIR or the complaint.
- The entire matter was only at the stage of registration of case and investigation has not at
all proceeded. It is not necessary for the HC to make an enquiry into whether the
allegations in FIR are reliable or not. The government cannot be expected to have all
details in support of the allegations in the complaint.
- Listed seven categories of cases to illustrate where extraordinary power under art. 226 or
s. 482 can be exercised by the HC.

102. In the backdrop of the interpretation of the various relevant provisions of the Code
under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions
relating to the exercise of the extraordinary power under Article 226 or the inherent powers
under Section 482 of the Code which we have extracted and reproduced above, we give the
following categories of cases by way of illustration wherein such power could be exercised either
to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it
may not be possible to lay down any precise, clearly defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases
wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if
they are taken at their face value and accepted in their entirety do not prima facie
constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any,
accompanying the FIR do not disclose a cognizable offence, justifying an
investigation

67
 by police officers under Section 156(1) of the Code except under an order of a
Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence
collected in support of the same do not disclose the commission of any offence and
make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute
only a non-cognizable offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently
improbable on the basis of which no prudent person can ever reach a just conclusion
that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or
the concerned Act (under which a criminal proceeding is instituted) to the institution
and continuance of the proceedings and/or where there is a specific provision in the
Code or the concerned Act, providing efficacious redress for the grievance of the
aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the
proceeding is maliciously instituted with an ulterior motive for wreaking vengeance
on the accused and with a view to spite him due to private and personal grudge.
103. We also give a note of caution to the effect that the power of quashing a criminal
proceeding should be exercised very sparingly and with circumspection and that too in the rarest
of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability
or genuineness or otherwise of the allegations made in the FIR or the complaint and that the
extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act
according to its whim or caprice.

XVI. Special Statutes

Mainly discussed UAPA Section 43-D(5) and NDPS Section 37 (Bail sections). The
difference between the two and similarities. While the UAPA incorporates the standard
of the offence being prima-facie made out, NDPS is about establishing that the accused is
not guilty of the offence and will not commit any offence while on bail.
While the UAPA section looks less onerous in terms of burden of proof than NDPS, it
turns out to be more onerous in practice.
Relevant sections are reproduced below:

UAPA - Section 43-D(5)

68
43D. Modified application of certain provisions of the Code.
(1) Notwithstanding anything contained in the Code or any other law, every offence punishable
under this Act shall be deemed to be a cognizable offence within the meaning of clause (c) of
section 2 of the Code, and “cognizable case” as defined in that clause shall be construed
accordingly.
…

(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable
under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond
unless the Public Prosecutor has been given an opportunity of being heard on the application for
such release:
Provided that such accused person shall not be released on bail or on his own bond if the Court,
on a perusal of the case diary or the report made under section 173 of the Code is of the opinion
that there are reasonable grounds for believing that the accusation against such person is prima
facie true.
NDPS - Section 37

37. Offences to be cognizable and non-bailable.—

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973—

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for [offences under section 19 or section
24 or section 27A and also for offences involving commercial quantity] shall be released
on bail or on his own bond unless—
(i) the Public Prosecutor has been given an opportunity to oppose the application
for such release, and
(ii) where the Public Prosecutor opposes the application, the court is satisfied
that there are reasonable grounds for believing that he is not guilty of such
offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to
the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the
time being in force on granting of bail.

NIA v. Zahoor Ahmad Shah Watali (Supreme Court)

[See case evidence law course summary below for context - adding extracts focused on in class]

NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1

69
Coram: AM Khanwilkar and Ajay Rastogi, JJ.

Facts: Same as above.

Procedural history: Bail granted by the Delhi High Court. Appealed in the present
case.

Issue(s): Whether there is reasonable ground to establish a prima facie case

against the accused to warrant denial of bail.

Reasoning: The court overturned the High Court’s order granting bail on the
following bases:

1. The court notes that the exercise required at the stage of grant of bail is
different from discussing the merits and demerits of the case, or dissecting
the evidence in detail. The mere requirement at this stage is to record a
finding on the basis of broad probabilities regarding the involvement of the
accused in the commission of the stated offense. The court observes that the
High Court by - a) excluding statements recorded under S. 161 CrPC for not
being admissible, b) rejecting documents such as D-132(a) produced by the
investigating agency for not being admissible, and c) discarding statements
by protected witnesses recorded under S. 164 CrPC on grounds of them
being under sealed cover were equivalent to the court evaluating the merits
of the case and in disregard of its duty to peruse the totality of evidence on
record to make a finding about the prima facie case against the accused.
Excluding evidence on the basis of admissibility concerns is impermissible at
this stage.

2. After considering all the evidence excluded by the High Court on grounds of
admissibility, there are reasonable grounds to believe that the accusations
made against the respondent are prima facie true.

3. The court also considered the document D-132(a) that was discarded by the
High Court as the question of its admissibility and credibility of the witness
who had produced said document are not to be looked into at this stage. In
reference to the charges against the respondent of being a financial conduit,
the information in this document is significant.

4. The court notes the High Court as being erroneous when holding that no
other criminal cases against the respondent were referenced by the
chargesheet, when there were photographs and other documents
accompanied in the chargesheet that support the respondent’s association
with ex-militants, etc

Discussed the “good and sufficient” standard mentioned in Paragraph 23. According to Sanya,
this indicates that even this judgment contemplates going into the sufficiency of the material
70
despite it

71
furthering only a “broad probabilities” analysis. [This has been used to read it differently in
Vernon]

Ranjitsing Brahmajeetsingh Sharma v. State of Maharashtra & Anr.

Context: The appellant accused in this case was a Commissioner of Police. MCOCA sections
(Section 24) were invoked due to allegations on the officer for facilitating commission of an
organised crime by certain “commissions and omissions” with the help of co-accused.
Extracts:

72
73
Interestingly, the above portions are cited in Watali (Supreme Court) and the Court made the
following observation:

74
But then goes on to completely disregard it.

Vernon v. State of Maharashtra 2023 SCC OnLine SC 885

Relevant Provision: (Unlawful Activities (Prevention) Act, 1967)

43D. Modified application of certain provisions of the Code.

(5) Notwithstanding anything contained in the Code, no person accused of an

offence punishable under Chapters IV and VI of this Act shall, if in custody,
be released on bail or on his own bond unless the Public Prosecutor has been
given an opportunity of being heard on the application for such release:

Provided that such accused person shall not be released on bail or on his own
bond if the Court, on a perusal of the case diary or the report made under
section 173 of the Code is of the opinion that there are reasonable grounds
for believing that the accusation against such person is prima facie true.

(6) The restrictions on granting of bail specified in subsection (5) is in

addition to the restrictions under the Code or any other law for the time
being in force on granting of bail.

(7) Notwithstanding anything contained in subsections (5) and (6), no bail

shall be granted to a person accused of an offence punishable under this Act,
if he is not an Indian citizen and has entered the country unauthorisedly or
illegally except in very exceptional circumstances and for reasons to be
recorded in writing.”

Summary:

Coram: Aniruddha Bose and Sudhanshu Dhulia, JJ.

75
Facts: The proceedings against the appellants arose from an FIR filed by an
informant in relation to a programme at Shaniwar Wada, Pune held on 31
December 2017. There were various events in connection with the said programme
which according to the prosecution were provocative in nature and had the effect of
creating enmity between caste groups leading to violence and state-wide agitation.
The books kept at the venue were also provocative. There were incidents of
violence, arson and stone-pelting near Bhima Koregaon. The police conducted
searches at the residences of ten individuals and sent the material gathered to FSL.
The appellants’ residences/workplaces were also searched and arrested. They were
initially under house arrest, following which they were sent to judicial custody. The
main appellant in this case, Vernon Gonsalves (hereinafter “VG”) is a writer,
columnist and had been vocal about issues on human rights, prison rights and
reform of the criminal justice system.

Procedural History: The appellants have been charged with ss. 121, 121A, 124A,
153A, 505(1)(b), 117, 120B read with s. 34 of the IPC as well as ss. 13, 16, 17, 18,
18B, 20, 38, 39 and 40 of the UAPA, 1967. They had filed bail applications before
the Special Judge, Pune who had dismissed their bail plea, following which they
filed an appeal before the Bombay HC which rejected their prayers for bail too. The
two judgments of the Bombay HC rejecting bail have been appealed here.

Issue: The issue which the court considered in this case is whether and to what
extent must the evidence be considered in order to see if a prime facie case has
been established against the accused to be rejected bail under s. 43D of the UAPA.

Reasoning: The court stated that in deciding on specific plea of the appellants for
bail is required to independently apply its mind and examine the materials placed
before it for determining the question of granting bail to the individual applicants.
Since the charges against the appellants include commission of offences under
Chapters IV and VI of the UAPA, the restriction on grant of bail as contained in s.
43D(5) would apply. Hence, there is a duty on the Court to peruse the case diary
and form an opinion that there are reasonable grounds to believe that there is a
prima facie case against the appellants while considering bail applications.

As held in Watali (SC), the court is required to record its opinion that there are
reasonable grounds for believing that there is or is not a prime facie against the
accused. By its very nature, “prime facie true” means that the evidence/materials
against the accused, must prevail until contradicted and overcome or disproved by
other evidence. The degree of satisfaction is lighter when the court says the case
against the accused is “prima facie true” as compared to the opinion of the accused
“not guilty” of such offence. The court would also be required to record its finding
as to the possibility of the accused committing a crime (under the act) after grant
of bail.

76
The chargesheet against VG stated that the appellants were involved in creating
antagonism between two sections as well as destructive acts against the country
including arranging a country wide conspiracy to overthrow the constitutionally
established democracy and administrative system. It stated that VG and two others
recruited members for the banned terrorist organization. They were also active
members who fulfilled its objectives by disseminating propaganda. IAPL was a
frontal organization for CPI(M) and the appellants were members of the frontal
organization. Evidence of exchange of messages, for implementation of goals and
policies of the org by planning and convening sittings were also carried out by the
appellants.

VG had earlier been implicated in 19 cases for alleged crimes under the 1967 act,
the Arms Act, 1959 and the Explosives Act, 1884. However, he had also been
acquitted in 17 of them. In the remaining two cases, one of them was under appeal
and the other, the discharge application was pending.

The court pointed out that due to the restrictive provisions of s. 43D of the UAPA,
some element of evidence-analysis is inevitable, something which would not be
necessary for bail under ordinary circumstances. The court went on to address the
evidence that the HC had considered to deny bail and examine them.

The HC referred to the evidence of the allegations of recruiting cadres for the
banned organizations by the appellants as well as their being active members
themselves to find that there was a prime facie case. There were also references
made to a set of letters, literatures and pamphlets. One of the letters requests the
addressee to manage finances for legal defence of a certain person. Another
appreciated the activities of VG and AF for motivating research scholars in joining
the revolutionary movement. Another refers to establishing of IAPL in Kerala. Apart
from the letters, various books and writings on extreme left-wing ideology including
its application to India were referred to.

The court categorised the acts allegedly committed by the appellants under three
heads:

Firstly, their association with a terrorist org which the prosecution seeks to establish
on the basis of the letters and witness statements. However, the court observed
that none of them had been seized from the appellants but were alleged to have
been made from the co-accused, which is to be noted while considering if there is a
prima facie case.

Secondly, their keeping of literatures propagating violence and promoting

overthrowing of the democratically elected government. Yet, the appellants were
not the authors of these materials and the possession of these books is in itself not
an offence since they have not been specifically proscribed.

77
Thirdly, some materials point to maintaining finances. However, these materials
show that the transaction was mainly for the purpose of litigation on behalf of
detained party persons.

The HC while analysing each of these documents individually did not opine that
there were reasonable grounds to believe that the accusations against the
appellants were not prime facie true. However, this court observed that in none of
the materials, the acts specified under s. 15(1)(a) or s. 15(1)(c) of the act can be
attributed to the appellants. With respect to acts under s. 15(a)(b), though they
possessed literature promoting seditionary activities, there is nothing to show that
prime facie the appellants themselves have taken part in such activities.

The court held that it was not possible to form an opinion that there are reasonable
grounds for believing that the accusation against the appellant of committing or
conspiring to commit a terrorist act is prima facie true. The copies of the letters,
which form the bulk of the prosecution’s evidence, record only third-party response
or reaction of the appellant’s activities. These communications hence have weak
probative value. Accordingly, provisions of s. 18 or 18B cannot be invoked against
the appellants, prima facie.

With respect to s. 20 of the UAPA, there is no material to show that the appellants
were members of the terrorist organization. The link between IAPL and CPI(M) has
not been clearly established. There is no evidence of continued membership after
the party was classified as a terrorist organization.

With respect to s. 38 of the UAPA, the prosecution must have prima facie
established the appellants’ association with intention to further the said
organization’s terrorist activities. The court was not satisfied with the evidence
presented by the prosecution.

With respect to s. 40 of the UAPA, the court was not satisfied with just the
presentation of the account statement by the

The court further went on the hold that the prima facie test would not be satisfied
unless there is at least a surface analysis of the probative value of the evidence, at
the stage of examining the question of granting bail and the quality of probative
value satisfied the court of its worth. Further, the court observed that the
appellants had not crossed as undertrials a substantial term of the sentence that
may have been ultimately imposed against them if the prosecution had established
the charges. However, as held in Najeeb, a bail-restricting clause cannot denude
the jurisdiction of a Constitutional Court in testing if continued detention in a
particular case would be violative of art. 21.

Conclusion: The court considered the appellants’ arguments founded on arts. 14

and 21 of the Constitution as well as the fact that they had spent almost five years
in custody, and granted bail to the appellants.

78
Extracts discussed in class:

79
80
81
82
83
Sudesh Kedia v. UOI
Context:

Important paragraphs (from class):

84
Union of India v. K.A. Najeeb, (2021) 3 SCC 713
Extracts:

85
86
Relevant provision(s): Section 43-D of the UAPA.

Facts: The respondent in association with other members of the Popular Front of
India (PFI) was accused of attacking a Professor for including a question targeting a
certain community, and hurling country-made bombs at bystanders to cause panic.
Over the course of investigation, the respondent was found to be part of a larger
conspiracy involving meticulous pre-planning and use of dangerous weapons.

Procedural history: The Kerala High Court had granted bail to the accused for
offenses committed under various sections of the IPC, UAPA and the Explosives Act,
which was under challenge in this appeal.

Issue(s): Whether bail can be granted in a UAPA case without determining the
existence of a prima facie case against the accused.

Reasoning: The grant of bail by the High Court was upheld in this case due to the
long period of incarceration (five years) undertaken by the respondent and the
unlikelihood of the trial being completed in the near future. Thus, the bail was not
granted based on whether a prima facie case is made out against the respondent,
but by invoking Article 21 of the Constitution that includes within its ambit access to
justice and a speedy trial.

87
The Watali (SC) decision is distinguished on the basis that bail was canceled in this
case due to the High Court embarking on a merits-based analysis of the case by
determining the admissibility of evidence which is not permissible at the stage of
grant of bail.

Further, the court goes on to state that the UAPA provision is comparatively less
stringent than the NDPS, where the competent court needs to be satisfied that the
accused will not commit another offense while out on bail. UAPA S. 43-D(5), on the
other hand, only creates an extra ground to be taken into consideration to refuse
bail.

Thwaha v UOI, 2021 SCC OnLine SC 1000

Context:

Other Important Extracts:

88
89