Investigation Having Case Laws

7
CRIMINAL PROCEDURE
KN. Chandrasekharan Pillai *
IN THE survey year a large number of decisions on different aspects of criminal

procedure have been handed down by the various High Courts and the Supreme
Court. Some decisions which the author considers very important alone have
been surveyed here. As usual for facilitating easy and speedy reference, the
cases have been dealt with under some general topics.
I WORKING OF FUNCTIONARIES IN CRIMINAL JUSTICE SYSTEM
The higher judiciary have had occasions to criticise the role of different
functionaries in the criminal justice system. For example, both the sessions
judges and senior police officers were criticised by the Madhya Pradesh High
Court in State of M.P. v. Gyan1 wherein two accused charged with murder
were granted anticipatory bail on the plea of suffering from hypertension. The
court was so unhappy that it went on record, "Indeed this court thinks that
there are sufficient reasons to doubt the honesty and integrity of the... Sessions
Judge."2
About the non-cooperation of the police, the court lamented:3
This Court would hope that someone responsible for administering this
State would find time to look into this matter and take remedial
measures. This court would also hope that the authority looking into
this matter also notices that large number of cases remain pending in
this Court only because of this non-cooperation. This Court would like
these sentiments of this Court to be read and appreciated by citizens
to voice their concern in the matter. It should be appreciated that this
Court is not responsible for all the delays nor is it responsible for
mounting arrrears of cases in this Court and these problems would not
be solved so long as police officials do not change their attitude.
There were instances where police atrocities came to light and the appellate
court could not convict the accused for serious offences for want of cogent
* Professor, Department of Law, Cochin University of Science and Technology, Kochi.

1 1992CriLJ 192.
2 Id. at 195.
3 Id. at 193.
www.ili.ac.in The Indian Law Institute

110 Annual Survey of Indian Law [1992
evidence.4 In one case the public was responsible for the destruction of police
station and the records of the case.
In Golaka Chandra Jena v. Director General of Police5 the dependants of
the victims of police atrocities were awarded a compensation of Rs. 30,000/-
by the Orissa High Court. The court's response may have some positive impact
as the state may require the police to act lawfully.
Role of the courts

The higher judiciary commented adversely upon the attitude of some trial
courts for not punishing the offenders and for not playing the role that has been
assigned to them under the Code of Criminal Procedure, 1973 (Code). In State
of Karnataka v. Shivappa? the court did not punish the offender though he was
found to be guilty of bribery. The Karnataka High Court warned:7
The viewpoint of the.... Sessions Judge that a conviction was for some
reason not merited despite a finding to the contrary by him, indicates
a tendency to run away from responsibility and we would say, of a
duty that rested on him in dealing with white collar culprits. We do
hope that the... Judge will not be guilty of such remissness again.
The Orissa High Court reminded the trial courts that they have a role to
bring out the truth in criminal trials. In a case8 where the trial court recorded an
acquittal as the prosecutor chose not to summon the investigating officer and
the informant, the court pointing out that section 165 of the Evidence Act,
1872 and section 311 of the Code act as complementary to each other, said:9
The Court has a duty to see that due to inept handling of the Prosecutor,
a guilty person does not go unpunished, or an innocent gets punished.
It is strange that counsel for State declined to examine as many as six
witnesses including the Investigating Officer and the informant, merely
because two other witnesses had stated something about the alleged
acts of the accused persons.
II INVESTIGATION
Arrest
In Kultej Singh v. C.I. of Police,10 the Karnataka High Court ruled that the
plea of the police that their keeping the arrested for one day in the lock-up
4 See State v Balakrishnan, 1992 Cri U 1872, Sham Kant v. State of Maharashtra, 1992 Cri U
3243. In the latter case the public was responsible for the destruction of police station and
consequently the records of the case.
5 1992 Cn LJ 2901.
6 1992 Cri LJ 3264.
7 Id. at 3272
8 Nilamani Das v, Bhikan Nayak, 1992 Cri LJ 2242.
9 Ibid
10 1992 Cri LJ 1173

Vol. XXVffl] Criminal Procedure 111
before he was produced before the magistrate would amount to arrest could not
be accepted in the view of section 57 read with section 46.
It has been ruled by the Madras High Court in Krishna Swamy v. Inspector
ofPolice,11 that if the accused is not released on bail under section 167(2), the
magistrate may pass an order of remand under section 309(2) of the Code.
Such an order of remand will not be invalid for the reason of the accused
having not been released on bail under section 167(2) and the charge sheet has
not been submitted within the period of 90/60 days as prescribed therein.
Whether non-availability of police for escort constituted a valid ground for
extending the period of remand of an accused under section 167(2) was answered
by the Andhra Pradesh High Court in Kurra Dasradha Ramaiah thus:12
Whenever it is not possible to produce an accused before the Magistrate,

the concerned Investigating Officer or any other responsible police
officer in charge of the case or the jail Superintendent shall file a
detailed report before the Magistrate explaining the circumstances under
which it was not possible to produce the accused on that particular
day. If the Magistrate is satisfied after going through the report, he
may dispense with the production of the accused and pass appropriate
orders under section 167... as to the detention of the accused. The
Magistrate should not pass an order in this regard mechanically in a
routine manner; the order should be a well considered reasoned one.
The court also deprecated the practice of applying for bail to a court by
suppressing the pendency of earlier application. The court said:13
Filing of bail application simultaneously in different courts may lead

to passing of conflicting orders. As a matter of practice, we direct that
no bail application shall be filed in any court when application already
filed in another court is still pending. In every application for
enlargement on bail there should be specific mention that no other
application for bail is pending in any other court.
In view of the explicit language of section section 167(2)(b)14 it is not

known how this ruling would be looked upon by other High Courts.
In Chamanlal Jain v. State15 the Rajasthan High Court ruled that its inherent
power could not be invoked to redress grievance of the accused that he was
remanded by the trial court under the Terrorists and Disruptive Activities Act
1985 (TADA) without perusing the connected records. The accused could seek
redressal of grievances only from the Supreme Court.
The Supreme Court in C.B.I, Special Investigation Cell v. Anupam J.
11 1992 Cri LJ 2998.

12 1992 Cri LJ 3485 at 3501.
13 Ibid,
14 S. 167 (2) (b) lays down, "No Magistrate shall authorise detention in any custody under this
section unless the accused is produced before him". Also see XXIII ASIL 271-72 (1987).
15 1992 Cri LJ 955.

Kulkarni,16 has held that custody after the expiry of the first 15 days can only
be judicial custody during the rest of the periods of 90 days or 60 days and that
police custody if found necessary can be ordered only during the first period of
15 days. However, if the accused is involved in another case, he can be
rearrested and remanded to police custody with the permission of the magistrate.17
What amounts to first information report (FIR)

In Jagdish v. State of M.P.X% the question was whether the statement that
asked the circle inspector to rush to the place of occurrence constituted FIR.
The Madhya Pradesh High Court responded to this question by pointing out
that it was only if the object was to narrate the circumstances of a crime, with
a view that the receiving police officer might proceed to investigate thereon,
that the message would be FIR.19
The Punjab and Haryana High Court also had an occasion to deal with this
question in Ram Singh v. State of Punjab wherein the court said:20
The first information or first information report though not mentioned

in the Code anywhere, yet it has always been understood to mean the
first information in point of time received by the police for purposes
of conducting the investigation.
The court has therefore ruled out the possibility of having more than one
FIR in a case.
First information and quashing of FIR

Time and again it has been held not only by the Supreme Court but also by
the High Courts in the country that investigation is within the exclusive territory
earmarked for the police and that their activities should not be interfered with
or without sufficient reasons. It has also been said that if the citizens approach
the police with complaints they cannot refuse to register cases on flimsy grounds.
In State of Haryana v. BhajanlaP1 the Supreme Court reiterated the above
views and said that since the word 'information' under section 154 is not
qualified as 'reasonable' on information given, it is the duty of the police
under that provision to register and then under section 156(1) to investigate.
They should have reasons to suspect the commission of crime. Quashing of
investigation should not be resorted to.
These views are in one form or another echoed in Munnalal v. State of
HP.,22 Hasan Alikhan v. State23 Mrs. Rita Wilson v. State of HP.24 In Rajeshwar
16 1992 C n U 2768
17 See discussions of the court in 1992 Cn LJ 2768 at 2776 quoting Dharampal's case, 1982 Cn
U 1103
18 1992 Cn U 981
19 Id. at 984
20 1992 Cn U 805 at 809
21 1992 Cn U 527
22 1992 C n U 1558
23 1992 C n U 1828.
24 1992 Cn U 2400

Vol. XXVIII] Criminal Procedure 113
v. State25 the Madras High Court held that a sub-inspector can be both a first
informant and investigating officer.
In Jayantibhai Lalubhai Patel v. State of Gujarat26 it has been ruled that a
FIR sent to a magistrate under section 157(1) is a public document under
section 74, Evidence Act, 1872.
In Buteswar Singh v. State of Bihar21 the Patna High Court has said that the
magistrate mentioned under section 156(3) is judicial magistrate. It has also
been said that under section 157(1) FIR should be promptly sent to the judicial
magistrate.
In Seraj Aslam v. State of U.P.1% the Allahabad High Court reiterated that
the power under section 156(3) should be exercised judicially. A judicial officer
not intending to exercise this power in a particular case has to give reasons for
his conclusion.
It has also been held by the Karnataka High Court that the power under
section 156(3) to order investigation cannot be exercised after taking cognizance
of the offence on the complaint of the complainant under section 200. Order
under the provision is a precognizance order.29
Further investigation under section 173(8)

In Jayant Vitamins Ltd. v. Chaitanyakumar30 the Supreme Court has held
that investigation into an offence is a statutory function of the police and the
superintendence thereof is vested in the state government. The court may not
be justified in interfering with investigation without any compelling reason.
This view of the government's power has been reiterated by the Allahabad
High Court which in Zutfiqur Beg alias Baby v. State of U.P. said:31
Upto the stage of submission of a charge-sheet final report in the case
by the police under section 173 of the Code, the executive wing of
the State Government has full power and control over the investigation
of the case.
Purpose of test indentiflcation parade (TIP)

The objective of TIP came to be discussed by the Madhya Pradesh High
Court in Khalak Singh v. State of M.P., thus:32
The purpose of TIP is to test the statement of the witness made in the
Court, which constitutes substantive evidence, it being the safe rule
that the sworn testimony of the witness in Court as to the identity of
the accused requires corroboration in the form of an earlier identification
proceedings. Such parades, which belong to the investigation stage,
25 1992 Cri U 661.

26 1992 Cri U 2377.
27 1992 Cri U 2122.
28 1992 Cri LJ 2244.
29 1992 Cri U 2897.
30 1992 (4) SCC 15.
31 1992 Cri U 2067 at 2070-71.
32 1992 Cri U 1150 at 1154.

serve to prove the authority with material to assume themselves if the

investigation is proceeding on right lines and therefore it is desirable
to hold them at the earliest opportunity. A further reason is that an
early opportunity to identify also tends to minimize the chances of the
memory of the identifying witnesses fading away due to long lapse of
time.
Counsel's presence during interrogation

In Poolpandi v. Superintendent, Central Excise33 the question whether the
person questioned under the Customs Act, 1962 or Foreign Exchange Regulation
Act, 1973 is entitled for lawyer's presence at the time of questioning was
answered in the negative by the Supreme Court.
In Sundaram v. Director, C.B.I., Madras,34 the Madras High Court has also
held that in the context of TADA, the offenders were not entitled to have an
interview with their advocate either under section 303 or under section 482.
Statement under section 164

In Ramchit Rajbhar v. State of West Bengal, the general purpose of recording
a statement under section 164 has been summed up by the court thus:35
The general purpose of recording such a statement of a witness is to

fix him to it when it is feared that he may resile afterwards or may
be tampered with. There is another purpose for recording the statement
under section 164. Statements made soon after the incident are far
more trustworthy than later denials or embellishments. Such statements
are admissible in evidence and presumption of genuineness under section
80 of the Evidence Act attaches to such statements. However, a
statement recorded under section 164 can never be used as substantive
evidence of truth of the facts but it may be used for the purpose of
contradiction or corroboration of the witness who made it, as per
provisions of sections 145 and 157 of the Evidence Act.
In Ambika Prasad v. State of U.P.,36 the Allahabad High Court clarified

that committal by a magistrate, who recorded statement under section 164,
may not be bad under section 479 as he is connected with it only in a public
capacity. Moreover in committal proceedings no question of law is decided.
It has been ruled by the Orissa High Court in Dhaneshwar Mallick v. State
of Orissa37 that refusal by a magistrate to record statement of witnesses under
section 164 does not affect fair trial. It is purely discretionary for the magistrate
to record statements of witnesses under this provision.
The Andhra Pradesh High Court in NS.R. Krishna Prasad v. Directorate of
33 1992 Cri U 2761.

34 1992 Cri U 3136.
35 1992 Cri U 372 at 378.
36 1992 Cri U 1478.
37 1992 Cri LJ 1711.

Vol. XXVni] Criminal Procedure 115
Enforcement, New Delhi3* has stated that the requirement of administering

caution under section 164(2) while recording statement is applicable in recording
statement under section 108, Customs Act also.
High Court has power to order investigation

The High Courts have also been exercising their writ jurisdiction to order
inquiry/investigation. The Kerala High Court in Sarojini Ammal v. Union of
India has identified the contingencies when it may be proper for it to order
enquiry/investigation:39
If the Court feels that the police failed in its statutory duty or basic
trust or that consideration of larger social justice requires it, it will
exercise its jurisdiction under Article 226 and issue a direction to cause
an investigation. But this is not a matter of right in a party nor a
matter for indulgence in favour of a party. Institutional perspectives
and sound considerations of policy should prevail in this area. A party
cannot choose his investigator or judge....
Dying declaration recorded by police officer in the presence of doctor admissible

In Thakur Das v. State of H.P.40 the Himachal Pradesh High Court ruled
that there was no prohibition against recording of dying declaration by police
officer. The mode of recording other than by way of question-answer is also
not material according to the court.
Impact of section 167(5) on a summons case beyond six months

In State of Punjab v. Amar Singh,41 the Punjab and Haryana High Court
held that the evidence collected during the investigation beyond the period of
six months would be rendered inadmissible by the provisions and not the
evidence which was collected earlier by an investigation.
Bail under the proviso to section 167(2)

The question whether there is right to bail under section 167(2) proviso in
the sense that if the prosecution failed to submit the charge sheet within 90
days, the accused should be released on bail, has been answered in the negative
by the Allahabad High Court in Hariom v. State of UP.42 The court found
support for its view in Lakhmanbhai Pancholi v. State of Gujarat.43
The Bombay High Court in Abdul Wahid v. State of Maharashtra,44 held
that a person should seek bail under the proviso to section 167(2) before the
submission of charge sheet.
38 1992 Cri LJ 1888.

39 1992 Cri LJ 3110 at 3114; see also Sri Pranab Jyothi Gogoi v. State of Assam, 1992 Cri U 154.
40 1992 Cri U 2415.
41 1992 Cri U 1000.
42 1992 Cri U 182; also see Shankar alias Gouri Shankar v. State of Tamil Nadu, 1991 Cri U
1745.
43 1990 Cri U 1275,
44 1992 Cri U 1900.

116 Annual Survey of Indian Law [ 1992
In Srisivanna v. State of Karnataka,45 the Karnataka High Court said that if

the 90th day happened to be a holiday and the state failed to file the report on
that day, the accused is entitled to claim bail on the next day under the proviso.
Another interesting question in this connection that arose before the Madhya
Pradesh High Court in Devendrakumar v. State of M.P.46 was whether the
period of 90 days for the purpose of applying the proviso could include the
period of bail granted under section 439. The court answered it in the negative
as the accused was not subject to the disabilities attendant with incarceration
during that period.
Impact of submission of charge sheet.

The Orissa High Court ruled47 that submission of charge sheet may make
the court to cancel bail granted under this provision.
However, the Andhra Pradesh High Court in Madaba Ramaiah v. State of
Andhra Pradesh4* did not accept this view. In this case the court set aside the
cancellation of bail ordered by the magistrate on the ground that the charge
sheet was filed on the 91st day on which date he was granted bail. The court
stated:49
When an accused person is released on the ground that the charge

sheet has not been filed, the Court has no power to correct it under
section 362... on the ground that there was some defect in granting
bail. There is no provision in the Code for cancellation of bail in the
case of persons that were released under the proviso to sub-section (2)... .
The Supreme Court has in Aslam Babulal Desai v. State of Maharashtra50

declared that mere submission of charge sheet cannot be a ground for
cancellation of bail granted under the proviso. The court clarified:51
We are, therefore, of the view that once an accused is released on bail

under section 167 (2) he cannot be taken back in custody merely on
the filing of a charge sheet but there must exist special reasons for so
doing besides the fact that the charge sheet reveals the commission of
a non-bailable crime. The ratio of Rajnikant case to the extent it is
inconsistent herewith does not, with respect, state the law correctly.
The court reasoned the above conclusion thus:52
The delay in completion of the investigation can be on pain of the

accused being released on bail. The prosecution cannot be allowed to
45 1992 Cri U 2287.

46 1992 Cri U 1730.
47 Sanatan Sahu v. State of Orissa, 1992 Cri LJ 352.
48 1992 Cri U 676.
49 Id. at 678.
50 1992 (4) SCC 272.
51 Id. at 291.
52 Ibid.

trifle with individual liberty if it does not take its task seriously and
does not complete it within the time allowed by law. It would also
result in avoidable difficulty to the accused if the latter is asked to
secure a surety and a few days later be placed behind the bars at the
sweet will of the prosecution on production of a charge sheet.
The law on this point thus seems to have been straightened by this decision.
Ill INITIATION OF CRIMINAL PROCEEDING
Cognizance order on material other than police report

It has been held by the Orissa High Court in Mohamed Jakaullah v. Noor
Mohamed Khan53 that when the magistrate based his cognizance order on the
material in the protest petition and case diary and not merely on the statement
of witnesses recorded under section 164, the cognizance is treated to have been
taken on police report under section 190(l)(b) rather than under section
190(l)(a).
The Orissa High Court in Pitambar Buhan v. State54 has stated that taking
cognizance includes intention of initiating a judicial proceeding against an
offender in respect of an offence or taking steps to see whether there is basis
for initiating judicial proceeding.
In Venkatesh Narayanappa v. Sri Vittal55 the Karnataka High Court opined
that a magistrate's taking cognizance on a police report after keeping silence
on it for more than six months and taking sworn statement of the complainant
was proper.
The magistrate's power to take cognizance ignoring police report has also
been reiterated in Jagannath Das v. State,56 by the Orissa High Court.
Prosecution of offences against public justice without sanction from concerned courts
In Sardul Singh v. State of Haryana,51 and Shiv Prasad Paliwal v. State of
Rajasthan5% it has been pointed out that initiation of criminal proceedings
against those accused of having committed offences in proceedings in the
courts, should be done on the complaint of the concerned court. The Punjab
and Haryana High Court said:59
The reading of the above referred provision of section 195 coupled

with the procedure prescribed in section 340... absolutely leave no
doubt that not only cognizance of such offences without the complaint
in writing of court concerned is barred but also the investigation into
such offences because that will amount to taking over the function of
53 1992 Cri U 4022.

54 1992 Cri U 645.
55 1992 Cri U 586.
56 1992 Cri LJ 2204.
57 1992 Cri U 354.
58 1992 Cri U 357.
59 Id. at 356.

the court, where forgery was committed, by the investigating agency

which is against the mandate of section 340... .
In the latter case the Rajasthan High Court said that in making the complaint
the court need not go by the language of section 340 if it is clear that it is in
the interest of justice that the court was initiating criminal proceedings.
The Bombay High Court in Godrej and Boyce Manufacturing Co. Ltd. v.
Union of India60 has stated that the magistrate can proceed directly under
section 343 as if in a case instituted on police report.
Requirement of sanction
In some cases the importance of requirement of sanction to prosecute has
been stressed by the courts. The tendency of the prosecution to avoid the
requirement of sanction also came for criticism.61
The rationale for this requirement has been expressed by the Madras High
Court in M.S. Kuppuswamy v. State,62 thus:
The purpose of sanction being vested in a departmental authority is to

provide an opportunity for assessment and weighing of the accusation
in a dispassionate and responsible manner. Such an approach in the
matter of according sanction must be apparent on the face of the record.
It will be appropriate, that the order of sanction reflects the
understanding of the facts by the sanctioning authority in his own way
not being put into a straight-jacket of repeating the facts put forth by
the Investigating Agency. Sanction to prosecute must have sanctity
attached to it, for the liberty of the person prosecuted is involved.
Initiation of action against additional accused

In Atibal Singh v. State of M. P.63 the Madhya Pradesh High Court has
ruled that a sessions court can summon additional accused even before an
inquiry or trial. The court said:64
The Court of Sessions prior to the framing of charge, can, without its
recording evidence, summon a person as an additional accused on the
basis of the document in the final report of the investigating officer
under section 173 independently of the provisions of section 319, as
has been held in the Patna Full Bench case of Latfur Rehman with
which I am in respectful agreement.
The court has pointed out that the magistrate is also entitled to do so but his
60 1992 Cri LJ 3752.

61 See Mohan Tiwari v. Arunachal Pradesh, 1992 Cri LJ 737; Ram Adhar Yadav v. Ramchandra
Misra, 1992 Cri LJ 2216; Soumyndra Narain Choudhury v. State, 1992 Cri LJ 1472;
Prakashchandra Jaiswal v. State of V.P., 1992 Cri LJ 1590.
62 1992 Cri LJ 56 at 70.
63 1992 Cri LJ 3209.
64 Id at 3214.

power is incidental to taking cognizance under section 190 and not under
section 319.
AH witnesses need not be examined in enquiry on complaint

It has been reiterated by the Orissa High Court in Rabindra Prasad Sing v.
Smt Lili Bala Sing,65 that in an inquiry under section 202 it is for the complainant
to limit the number of witnesses to be examined.
Rejecting an argument that the criminal courts should not take cognizance
of an offence under section 138 of Negotiable Instruments Act, 1881 and
section 420, Indian Penal Code, 1860, (IPC) the Bombay High Court in
Pawankumar v. Ashish Enterprises, said:66
There is nothing in law to prevent the criminal courts from taking

cognizance of the offence, provided the elements of an offence are
made out on the face of the complaint-petition itself, merely because
on the same facts, the persons concerned might be also subjected to
civil liability... . If the allegations disclose a criminal offence, the
complaint ought not be dismissed even if civil remedy is obtainable.
That there is no possibility of conviction is no ground for dismissal.
I . KM. Mathew v. State of Kerala,61 the Supreme Court has ruled that a
magistrate can discharge a person on his appearance in the court when there
are no specific allegations made on the complaint against him. The court's
observations are pertinent:6*1
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.
In Rakesh Kumar v. State of Punjab69 involving trial of offences under

section 498A IPC, it was held by the Punjab and Haryana High Court that
since stridhan (dowry) was given at Ludhiana and the consequences arose also
at Ludhiana, the Ludhiana courts will have jurisdiction.
IV BAIL
Considerations in granting bail

While the delay in the proceedings has indeed influenced the courts in
granting bail in Virsa Singh v. State through C.B.I.,10 Jai Singh v. State of
65 1992 Cri U 1716; see also Dinabandu Das v. Balakrishna Das, 1991 Cri LJ 3273.
66 1992 Cri U 1619 at 1629.
67 1992 Cri LJ 377 ft
68 Id. at 3780.
69 1992 Cri LJ 1815.
70 1992 Cri U 164.

Rajasthan,11 Mohamad Yusuf Ali v. Asst. Collector of Customs12 it has been

declared by the courts that filing of nomination papers73 for Lok Sabha elections
or affliction with cardiac disease74 may not be considerations for granting bail.
The Orissa High Court in Biswanath Bapat v. Sanjay Saha15 has reiterated that
the court can grant bail only when the accused surrenders to the court. The
Rajasthan High Court's concern76 in the trial courts' apathy in dealing with bail
applications may be shared by all. It was observed:77
It is really disturbing that the trial courts are so unaware of liberties

of the citizens. Now, it is settled proposition of law that expeditious
criminal trial is a fundamental right of the accused, especially when
he is in jail. No accused can be kept in jail for uncertain period, as
an undertrial prisoner, especially when there is no fault on his part.
Bail granted by police

An interesting question arose in Haji Mohamed Wasim v. State of U.P.n
before the Allahabad High Court as to the validity of bail granted by police
officers. In this case the accused who was on bail granted by police preferred
not to appear before the court. The trial court issued a non-bailable warrant
which came to be challenged by the accused under section 482. The court
ruled that he has to take fresh bail from the trial court. It reasoned:79
My conclusion on consideration of different provisions as discussed

earlier, is that the power of a police officer in-charge of a police station
to grant bail and the bail granted by him comes to an end with the
conclusion of the investigation except in cases where the sufficient
evidence is only that of a bailable offence, in which eventuality he can
take security for appearance of the accused before the magistrate on
a day fixed or from day to day until otherwise directed. No parity can
be claimed with an order passed by magistrate in view of enabling
provision contained in clause (b) of section 209... under which the
committal Magistrate has been empowered to grant bail until conclusion
of trial, which power was otherwise restricted to grant of bail by him
during pendency of committal proceedings under clause (a) of section
209... .
In Nazeem v. Asst. Collector, Customs,™ it has been ruled by the Bombay

High Court that even after a bail application is disposed of on merits, it is
71 1992 Cri LJ 2873.

72 1992 Cri LJ 3285.
73 Donthi Reddy Chinna Gangireddy v. State ofA.P.t 1992 Cri LJ 1049.
74 Venkataramanappa v. State of Karnataka, 1992 Cri LJ 2268.
75 1992 Cri LJ 3105.
76 Supra note 71.
77 Id. at 2895.
78 1992 Cri U 1299, see also Morit Malhotra v. State of Rajasthan, 1991 Cri U 806.
79 Id at 1302.
80 1992 Cn LJ 390.

permissible for the party once again to present another application for a
reconsideration of that order since such orders are interim ones and are capable
of modification.
In Shobha Ram v. State of U.P.™ another question was raised. After bail
application of the accused was rejected, a co-accused was granted bail by a
judge. So the applicant made a second application on the ground that on
identical facts a co-accused was granted bail. He was granted bail. This came
to be challenged on the ground that the applicant did not let the judge know
that his first application for bail was rejected and hence there was no parity in
rejection of bail application. The court responded:82
The contention by the... counsel of the applicant that there could be

no parity in rejection of bail application appears to have much force.
The reason for it is that when the bail application of one co-accused
is rejected on merits, the other co-accused who is not a party to that
bail application, had no opportunity to make his submissions before
the Court. It is only when he moves his bail application that he can
make his association, which are to be heard and decided on merits by
this court. So it cannot be said that his bail application would be liable
to be rejected merely because the bail application of other co-accused
had been rejected earlier.
The Andhra Pradesh High Court was presented with another question in
Malla Ramarao v. Stated The applicant after the rejection of his application
for bail twice by the sessions court and once by the High Court approached the
High Court again.The High Court depreciated this kind of application as both
the sessions court and the High Court have concurrent jurisdiction. The court
pointed out:84
The moment he filed an application and the same has been disposed
of either in his favour or against him, indicates that the petitioner or
petitioners are aware of the accusation that has been levelled against
them. When he is aware of the accusation levelled against him and the
court passed an appropriate order rejecting his application, as a dutiful
citizen he is bound to surrender before the concerned police.
Bail to drug offenders

The question whether the discretion of the court to grant bail under section
439 was curtailed by section 37 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (NDPS Act) has been answered in the affirmative by the
Karnataka High Court in Shankar Krishnara Habib v. State of Karnataka}5
The court reasoned:
81 1992 Cri LJ 1371.

82 Id. at 1372.
J8T3 1992 Cri U 2208.
84 Id. at 2209.
85 1992 Cri U 205 at 213.

What the NDPS Act says is that a person accused of an offence

punishable for imprisonment for a term of 5 years or more his request
will be considered only when the Public Prosecutor has an opportunity
to oppose such an application and secondly when the Public Prosecutor
opposes such an application the court is satisfied that on the material
collected there are reasonable grounds to believe that the person against
whom accusation is made is not guilty of such offence and thirdly in
case of release he is not likely to commit any offence.
The court, however, gave a ruling in Smt. Kamalabai v. State of Karnataka*6

that the High Court's power under section 439 is not affected by the provisions
of the NDPS Act.
It was held in Shokat All v. State of Rajasthan*1 that a juvenile accused
under the NDPS Act could be granted bail also by sessions/High Courts.
The Madras High Court in Superintendent, Narcotics Control Bureau, South
Zone, Madras v. Selvaraju has said that section 37 of the NDPS Act has
overriding effect. It is pertinent to note that the Madras High Court89 invoked
constitutional provisions under article 227 to grant bail to a person accused
under the Terrorists and Disruptive Activities Act as other provisions including
section 482 in the Code were excluded from operation.
In Asst. Collector of Customs, Bombay v. Madam Ayabo Atendam it was
declared by the Bombay High Court that the bail order passed prior to submission
of charge sheet would be operative till the submission of the charge sheet only
and after that a de novo consideration whether to grant bail or not would have
to be taken.
Cash security
The insistence for high cash security for bail came for drastic criticism by
the Karnataka High Court thus:91
In the case on hand, the present approach of the... Sessions Judge in

insisting upon the petitioner to deposit a cash security of Rs. 750/- in
each case totalling Rs. 6750/- is not only harsh and oppressive but
indirectly denial of bail thus depriving the person his individual liberty.
It has also been ruled by the Bombay High Court in Rajeev Bhatia v.
Abdulla Mohamed Gani,n that in customs cases where the accused has exercised
an option of furnishing cash bail and desired thereafter to change over to the
security of a surety, the customs authorities have no right to object to the
refund of the cash amount pending the trial.
86 1992 Cri U 561.

87 1992 Cri U 1335.
88 1992 Cri LJ 2143.
89 D. Veerasekaran v. State of Tamil Nadu, 1992 Cri LJ 2168.
90 1992 Cri LJ 2349
91 Afsarkhan v. State by Girija Nagar Police, 1992 Cri U 1676.
92 1992 Cri U 2092.

Requirement of hearing of prosecution before granting bail

The Karnataka High Court responding to the statutory requirement of hearing
the prosecutor under section 104D of the Karnataka Forest Act, 1964 before
the accused is granted bail observed:93
I even go to the extent of observing that the interest of the State and
the interest of the accused have been properly balanced inasmuch as
the right to move the Court for release on bail is conceded to the
accused on the one hand and at the same time right of the prosecution
to state its case against release of the accused on bail is recognized
by the legislature. I therefore, hold that section 104-D... is constitutional
and valid.
In State of Karnataka v Chinnavasappa s/o Hanumanthappa9A it was held

unless the civil judge and first class magistrate was appointed additional sessions
judge under section 9 of the Code, he would not have jurisdiction to grant bail
in a case coming under the jurisdiction of the sessions court during his temporary
holding charge of the latter.
Cancellation of bail
Generally speaking, the courts do not seem to be inclined to cancel bail
once granted. This trend is in consonance with the Supreme Court rulings on
the subject.
While in Brijeshwar Dayal Verma v. State of U.P.,95 the Allahabad High
Court cancelled the bail on the ground that the accused got bail on
misrepresentation of facts, the application for cancelling the bail in State of
Maharashtra v. Kriti Ambani96 was rejected by the Bombay High Court saying
that there was no evidence that the accused was not cooperating with
investigators. The Orissa High Court in State of Orissa v. Jagannath Patel,91
also refused to cancel the bail in a dowry death case. However, the same High
Court in Gurumurti Digal v. Ashok Kumar Digal9% cancelled the bail as the
bail granted to him by the sessions court in a case involving rape of a minor
child was not found proper.
The Delhi High Court in Tilak Raj Kohli v. Devendra Kumar99 reiterated
that for cancellation stronger grounds are necessary. It, however, cancelled the
bail in Ashok Kumar v. State,m as the witness on reliance of whose statement
the accused was granted bail had disowned his statement. The court has identified
and discussed the grounds on which cancellation can be ordered.
An unwarranted comment was made by a judge of the Madhya Pradesh
93 Mohamed v State of Karnataka, 1992 Cn LJ 89 at 92

94 1992 C n U 95
95 1992 Cn U 4 1 1
9j6 1992 Cn U 1647
fl 1992CnLJ 1818
98 1992 C n U 1917
99 1992 Cn U 4000
100 1992CrxLJ 3821

High Court in Vikramjit Singh v. State ofM.P.,m to the effect that persons like
the accused before him should not be granted bail. He, however, ganted bail
since another accused in the case was granted bail by another judge of the
same High Court. Taking the cue the state moved application for cancellation
of bail. On being moved for special leave, the Surepme Court struck down the
order observing:102
It appears that the ... Judge while passing the impugned order, failed
to appreciate that no bench can comment on the functioning of a
coordinate bench of the same court, much less sit in judgment as an
appellate court over its decision. If the State was aggrieved by the
order of bail by Mr. D.C. Verma, it could have approached this court,
but that was not done.
Anticipatory bail
Impropriety of the judicial officers in dealing with bail applications came
to be criticised in NKSM Shahul Hameed v. Mohamed Ibrahim,m in which
even after the arrest and an application for bail the accused were granted
anticipatory bail. The observations are worth quoting:104
If a Magistrate was cocksure of the foundation that the order of Sessions

Judge cannot at all be executed, he ought to have boldly sought for
clarification. The act of... Magistrate in not seeking for such clarification
as well as the act of... Sessions Judge in passing an order granting
anticipatory bail on the admitted factum of arrest of the person accused
of, much earlier to the grant of anticipatory bail, smack of judicial
impropriety in the circumstances of the case. The grant of anticipatory
bail, in such circumstances, would lend a helping hand to the persons
accused during the course of trial to create a cloud of suspicion about
their arrest, confession, consequent discovery of incriminating facts
under section 27 of the Evidence Act etc. and derive maximum benefit
out of it.
While in Baldev v. State,105 and Harshad Mehta v. Union of India,i05a no

anticipatory bail was granted as it would have affected investigation, in Ambalal
Punamchand Rashamwala v. State,1™ anticipatory bail was refused as non-
bailable warrants had already been issued by the concerned court.
The question whether an accused can be given anticipatory bail on
apprehension of arrest for an offence allegedly committed in Madhya Pradesh
by the Kerala High Court was answered in the negative in T. Madhusoodanan
v. Superintendent of Police.m
101 1992 Cri U 5 1 6 .

102 Id. at 517.
103 1992 Cri U 227.
104 Id. at 230.
105 1992 Cri U 1604.
105a 1992 Cri U 4032.
106 1992 Cri LJ 2373.
107 1992 Cri LJ 3472.

Vol. XXVHI] Criminal Procedure 125
It has thus followed its own earlier decision in C.T. Mathew v. Govt of
India, Home Department (CIB).m
In Khimiben v. State of Gujarat,m the Gujarat High Court deprecated the
tendency of granting anticipatory bail to offenders involved in dowry death
cases and ordered cancellation of anticipatory bail. The court, it appears, was
influenced by the Supreme Court ruling in Samunder Singh v. State of Gujarat,110
which stressed the need for caution in granting anticipatory bail to persons
involved in dowry death cases. The Karnataka High Court in State of Karnataka
v. Narayanappa,ui refused to cancel anticipatory bail though it was granted on
improper grounds, as there was no evidence of misusing the freedom by the
accused.
V TRIAL AND TRIAL PROCEDURE
The importance of trial procedure came to be emphasized by the Andhra

Pradesh High Court in R. Venkat Reddy v. State,112 in which in a propsecution
for offence under section 193 IPC, instead of warrant procedure, summons
procedure was followed. The court said:113
Every right of the accused is well knit in the Code of Criminal

Procedure in order to link it with the protection available under Article
21 of the Constitution of India. It is, therefore, mandatory for the courts
to follow meticulously the procedure — either warrant or summons —
prescribed in the Code of Criminal Procedure in trying the accused,
lest it may attract the consequences that flow from violation of the
mandatory procedure prescribed by the law culminating in deprivation
of the fundamental right guaranteed under Article 21... .
The Karnataka High Court has however pointed out in Gurappa

Haramanthappa Bijapur v. State,U4 that adherence to technicalities in matters
which are n6t of vital or important significance in criminal trials may frustrate
the ends of justice.
Non-examination of a witness by prosecution

In Jodha Koda Rabari v. State ofGujarat,u5 the Gujarat High Court pointed
out that if there was some material to indicate that prosecution witness has
been won over by the accused, then the non-examination of that witness by the
prosecution cannot be a matter of criticism.
It has also been held that if a witness makes two inconsistent statements,
and the court is satisfied that the earlier statement was true that would not
m f992CriLJ 1316.
my 1992 Cri LJ 1994.
no
in
1992 Cri U 705.
1992 Cri U 225.
112 1992 Cri U 414.
113 Id. at 417.
114 1992 Cri U 1653.
115 1992 Cri LJ 3298.

debar the court from acting on such evidence.

In Kuldip Singh v. State of Punjab,116 the Supreme Court has stated that
when a witness gives one statement at the time of inquest and later in the court
he changes it, the inquest report can be looked into to test the veracity of
statement though inquest report does not constitute evidence.
Examination of accused under section 313

In Kabul alias Khudia v. State of Rajashtan,111 the Rajasthan High Court
has ruled that if no opportunity was given to the accused to explain certain
circumstances, those circumstances should be excluded from evidence.
The importance of section 313 has been emphasized by the Supreme Court
also in Stat€ of Maharashtra v. Sukhdev Singh alias Sukha. The court observed:118
It is trite law that the attention of the accused must be specifically

invited to inculpatory pieces of evidence or circumstances laid on record
with a view to giving him an opportunity to offer an explanation if
he chooses to do so. The section imposes a heavy duty on the court
to take great care to ensure that the incriminating circumstances are
put to the accused and his response solicited.
In Virisingh v. State of U.P.U9 though the accused did not contest the
genuineness of injury report etc. the court subjected them to further scrutiny.
The Allahabad High Court said:120
The mere fact that the genuineness of the injury and the Radiologist's
report was not disputed, does not mean that the jurisdiction of the
court to ascertain the truth and arrive at a correct legal decision, is
ousted.
It has been emphasized by the Karnataka High Court that the accused
should be given opportunity to cross-examine the witnesses.121
Similarly in T.N. Janardhanan Pillai v. State,122 the Kerala High Court also
noted the importance of examination of witnesses by the defence. Indeed, the
court noted that the trial court has discretion to recall witnesses. But once they
have been recalled the defence should be given opportunity to cross-examine
them.
In Nain Singh v. Nain Singh,123 the Jammu and Kashmir High Court said
that in the absence of a request of summoning prosecution witnesses by the
prosecutor in view of section 271 of the Code, there is no obligation on the part
116 1992 Cri LJ 3592

117 1992 C n U 1491
118 1992 (3) SCC 700 at 741.
119 1992 Cri LJ 1383.
120 Id. at 1384.
121 See State of Karnataka v. Dandapam Modahar, 1992 Cri LJ 24.
122 1992 Cri U 436.
123 1992 Cri LJ 2004.

of court to summon them by coercive means.

In Sreedhar Pillay v. P.J. Alexander,124 the Kerala High Court has again
reiterated that the trial court should help the accused to produce material
evidence even in a case where the evidence is strong for the prosecution as
they may help him to rebut the prosecution case.
The decision in Dwarka Prasad v. State ofM.P.125 by the Madhya Pradesh
High Court indicates that if a person gives a statement in trial conflicting with
a statement recorded under section 164, he could be charged for perjury under
section 344. In the instant case the charge was not sustained as the accused did
not get sufficient notice of the gist of the offence.
In Nawal Kishore Shukla v. State of UP.,n6 the Allahabad High Court
opined that a magistrate can examine a witness required by the complainant
though his name does not appear in the original list of witnesses.
In Purushottam Subra v. State of Orissa,121 two important questions arose
as to whether the failure of magistrate to explain particulars of the offence
under section 251 vitiated trial and whether admission of guilt by the accused
when the prosecution report did not make out an offence under a statute would
give the authority to convict the accused. Both were answered in the negative.
In State of Maharashtra v. Sundar P. Lalvani,m the Bombay High Court
reversed the acquittal recorded by the trial court under the Imports and Exports
(Control) Act, 1947 and recorded conviction. On invoking its inherent powers
for review/recall the court responded:129
The Code of Criminal Procedure does not make a provision for any
such procedure, and secondly, even if the inherent powers under section
482... are to be invoked, it would not be open to this court to permit
something thereunder which is specifically prohibited under section
362... .
In Hemantakumar Mohapatra v. Binod Bihar Mohapatra,130 the accused

appeared in court, took bail and his counsel on his behalf cross-examined
witnesses. But instead of his real name, some other name was mentioned in the
charge sheet. The complainant moved the court for correcting the name. But
the trial court rejected the prayer. The Orissa High Court considered it a
clerical error and ruled that there was nothing wrong in the court to make
necessary corrections.131
In Vadla Balaiah v. K Raghavendra Reddy, the Andhra Pradesh High
Court said about the mode of service thus:132
124 1992 Cri LJ 3433.

125 1992 Cri U 2027.
126 1992 Cri U 1554.
127 1992 Cri LJ 1417.
128 1992 Cri U 2015.
129 Id. at 2019.
130 1992 Cri LJ 2183.
131 Id. at 2187.
132 1992 Cri U 4019 at 4020.

The criminal law does not say that in the case of a revision, if service
of notice is not effected on the opposite side, the service has to be
affected in a particular way. In the absence of any procedure prescribed
in this behalf, the only procedure to be followed is by directing the
notices to be published in a local newspaper.
In Guthikonda Srihariprasada Rao v. Guthikonda Lakshmi Rajyma, the

Andhra Pradesh High Court examined the mode of service of summons under
the Code. It was observed:133
Now in the new Code sections 61 and 62... are almost identical to
sections 68 and 69 of the old Code. Here also sections 61 and 62 ...
do not contemplate service of summons through registered post. A
reading of the provisions of the Code clearly indicates that only in the
case of service of summons on witnesses, service by post is
contemplated.
It has been held by the Madras High Court in Vasanthi v. Kamaswami,m

that an acquittal recorded under section 248(1) by a trial court in a case
involving offences under sections 494 and 495 read with section 109 IPC
merely on the ground of absence of complainant was improper. The court
observed that merely because the complainant or her witnesses are not available
for cross-examination under section 246(4) of the Code, the magistrate cannot
record an acquittal under section 248(1) of the Code on the plea that the
complainant had not proved her case.
The courts exempt persons accused of less serious offences from appearing
in the court. In Mangaroo v. State of L/.P.135 rejecting the order of magistrate
cancelling the exemption granted to the accused, the Allahabad High Court
declared:136
If the complainant moves such an application for cancellation of
exemption out of revenge or in order to pressurise the applicant so that
he may lose his job in a foreign country only to face trial which is
not for a very serious offence involving moral turpitude, it would not
be permitted.
Charging
It has been reiterated in serveral cases decided by different High Courts
that at the stage of framing charges, the court is required to evaluate the
material and documents with a view to finding out whether the facts taken at
their face value disclose the existence of the ingredients of the alleged offence.137
133 1992 CrLLJ 1594 at 1595.

134 1992 Cri U 2442.
135 1992 Cri LJ 1397.
136 Id. at 1398.
137 Sumati Vijay Jain v. State ofM.P., 1992 Cri U 97; Sri Sudhirkumar Arya v. State, 1992 Cri LJ
21; S.B.I., Balangir Branch v. Satyanarayana Sarangi, 1992 Cri LJ 2635; and Ramachandra
alias Rama Pandan Sahu v. Niranjan Rout, 1992 Cri LJ 304.

Vol, XXVIII] Criminal Procedure 129
In State of Karnataka v. Dandapani Modaliar,m the court clarified that the

Code provides for some time to intervene between the date on which the
accused is required to state as to whether he wishes to cross-examine any or all
the witnesses examined by the prosecution before framing charge. Failure to
give this opportunity is not an illegality though.
It has been reiterated by the Rajasthan High Court130 that framing a charge
is an order of moment which takes away a valuable right of the accused to be
discharged. It cannot therefore be an interlocutory order and it should be
revisable. In this connection the Kerala High Court's ruling in NK. Narayanan
v. V.V. Vidyadharan,iA0 surveyed in 1991 might also be noted.
In Satyanarayana Mohapatra v. State of Orissa,XAX the Orissa High Court
said that the order charging the offenders without obtaining sanction and without
jurisdiction is interlocutory and hence not revisable.
With regard to the application of section 221 on framing of alternative
charge, the Delhi High Court in Jatinderkumar v. State (Delhi Administration),142
observed:
[T]he question of framing charge in the alternative can arise when

there is no doubt about facts which can be proved but doubt is as to
what offence will be constituted on those facts.
Discharge
The object of discharge has been adverted to by the Karnataka High Court
in Bangarappa v. Ganash Narayan Hegde143 thus:
Because the object of discharge is to save the accused from unnecessary

prolonged harassment which is a necessary concomitant of protracted
trial. Thus if there is no prima facie case or sufficient and strong
grounds to proceed against the accused are not made out and the
allegations are baseless or the proceedings are mainly aimed at harassing
an accused, under such circumstances it is just and proper for the trial
court to discharge the accused and thus prevent abuse of the process
of the court.
In State of Mizoram v. K. Lalruata}^ the Gauhati High Court pointed out

that before discharge is ordered, three preliminaries have to be gone through:
(0 consideration of police report and the document referred to in section 173
and which are furnished to the accused, (ii) examination if any, of the accused
as the magistrate thinks necessary, (Hi) giving prosecution and the accused an
opportunity of being heard and then to consider whether the charge is groundless.
138 Supra note 121.

139 See Jarnail Singh v. State of Rajasthan, 1992 Cri LJ 810.
140 1992 Cri U 780.
141 1992 Cri LJ 2904,
142 1992 Cri U 1482 at 1484.
143 1992 Cri U 3788 at 3804.
144 1992 Cri LJ 970.

The need for reasoned discharge order has been stressed by the Orissa High
Court in Rabindrakumar Sarain v. State of Orissa.145
In Anilkumar v. State of Rajasthan, involving dowry death, the Rajasthan
High Court spoke about the applicability of section 222 thus:146
When a person is charged with an offence, consisting of several

particulars and if all the particulars are proved, then it will constitute
the main offence, while if only some of those particulars are proved
and their combination constitutes a minor offence, the accused can be
convicted of the minor offence, though he was not charged with it.
Thus a minor offence within the meaning of section 222... would not
be something independent of the main offence or an offence merely
involving lesser punishment. The minor offence should be composed
of some of the ingredients constituting the main offence and be a part
of it.
In Chandar Singh v. State ofM. P., commenting upon the conduct of trial,
the Madhya Pradesh High Court said:147
Before parting with the case, we feel constrained to record our

displeasure on the serious infirmities of not recording any finding on
the charge under section 323 or 323/149 of the IPC though framed.
No court engaged in dispensation of justice can afford to be so
unmindful and nonchalant and it is not expected of it to deliver such
a sketchy judgment and that too on a capital charge.
VI TRANSFER OF CASES
In State of Gujarat v. Ratilal Uttamchand Morabia,m the order of the

sessions judge transferring a case against respondent pending at the sub-divisional
magistrate's (SDM) court was reversed by the Gujarat High Court saying that
though under section 6 of the Code, SDM's court is a criminal court, it may
not give sessions judge jurisdiction to transfer such a case. This power vests
with the district magistrate rather than the sessions judge.
In M. Mohan Shet v. State of Karnataka,149 the Karnataka High Court
rejected the application for transfer of a case made on the ground that an
advocate of their choice was not available.
VII APPEAL/REVISION
In Kalandhicharan Pani v. Ganesh Dalai,150 the appellate jurisdiction of
145 1992 Cri U 1868.

146 1992 Cri U 3637 at 3640.
147 1992 Cri U 3947 at 3952-53.
148 1992 Cri U 9.
149 1992 Cri LJ 1403.
150 1992 Cri U 281.

the High Court has been detailed. Since the trial court's findings were based on
surmises, retrial was ordered.
The Andhra Pradesh High Court in Hoechest India Ltd. v. State of A.P.151
has also ordered retrial as the trial was not proper.
In Durga Prasad Soni v. State of A. P.152 the same High Court said that
where in addition to the substantive fine of Rs. 100/- a recurring fine of
Rs. 5/- per day for failure to pay up the market fee exceeded the maximum
amount, appeal does lie under section 374. So bar under section 376(c) will not
be applicable to such a case.
It has been reiterated by the Supreme Court in E. Balakrishnamma Naidu v.
State of AP. 153 that if the state does not elect to appeal on acquittal, the
appellate court will not interfere with it.
In Haryana v. Ramlal,154 the Punjab and Haryana High Court has said that
one appeal of convictions in six cases cannot be competent. Six appeals will
have to be filed.
In has been decided by the Supreme Court in Ram Milan v. State of U.P.155
that the appellate court while reversing the order of acquittal has to consider
the entire evidence in detail and give cogent and convincing reasons as to why
an interference is warranted.
When two judges on the Division Bench differ, the matter should be put
before the third judge and the court will have the third judge's opinion as final.
It is so declared by the Karnataka High Court in B. Subbaiah v. State of
Karnataka}56
In Dharamaji Gangaram Gholem v. Vinoba Sona Khode,151 the Bombay
High Court ruled that a revision by the complainant in the sessions court
against acquittal of the accused by the trial court should be entertained with
special leave. The court reasoned:158
Sub-section (2) of section 399 does speak of provisions of different

sub-sections of section 401 being applicable "so far as may be". But
sub-section (4) of section 401 speaks of the remedy of appeal provided
by the Code and not any particular provision thereof. Sub-section (4)
of section 378 permits a complainant in a private case to assail a
verdict of acquittal by an appeal to the High Court which appeal can
be preferred only after grant of special leave to appeal. Therefore this
fetter would come in the way of revision entertainable by the Sessions
Judge also.
151 1992 Cri U 2360.

152 1992 Cri U 1614.
153 1992 Cri U 2328.
154 1992 Cri U 2482.
155 1992 Cri LJ 2537.
156 1992 Cri U 3740 at 3742.
157 1992 Cri U 870,
158 Id. at 872.

The Orissa High Court in R. Jagadish Murthy v. Balaram Mohanty,*59

observed:160
It is to be noted that section 397(1) does not say on whose motion

court may call for the records of the lower court. But sub-section (3)
indicates that an aggrieved party may make an application. So far as
High Court is concerned, section 401 (1) expressly authorises the court
to exercise power of revision suo motu apart from the application from
a party. The complainant is entitled to move a revision even if State
does not. On the same consideration, revision is maintainable at the
instance of aggrieved private party, even if prosecution was instituted
by police and not on the basis of a complaint.
About the jurisdiction of the High Court in appeal and revision the court
said:161
While the High Court sitting in appeal under section 386 of the Code
can convert finding of acquittal into one of conviction, section 401
sub-section (3) debars conversion of acquittal into conviction. High
Court, however, would not disturb a finding of fact unless it appears
that the trial court shut out any evidence, or overlooked any material
evidence or where there has been manifest error on a point of fact.
In Suresh T. Kilachand v. Sampat Shripat,162 the Bombay High Court held

that bar against review in section 362 cannot be overcome by invoking inherent
power under section 482. With regard to recall, the court said:163
It would be useful to bear in mind the supportive arguments which
would direct the issue, the first of them being that the expression "recall"
of a judgment is virtually a play with words because it involves the
process of setting aside the judgment and this is a power which, under
the Code of Criminal Procedure, rests only with the appellate court.
Secondly, by using the word "recall" one cannot escape from the fact
that the expression "recall" is a disgrace for an initial process of setting
aside the final judgment, restoration of the matter, rehearing which
involves a review and the ultimate possibility of an alteration of the
judgment. The would bring us a full circle back to section 362... .
The Orissa High Court in P. Madhusudan Rao v. State of Orissa164 dealt
with the procedure that should be followed in a case where the possession of
case property is claimed by the accused but he is not capable of accounting for
it. The court said:165
159 1992 Cri U 996.

160 Id. at 999.
161 Ibid.
162 1992 Cri U 1203; see also State of Maharashtra v. Sundar P. Lalwani, 1992 Cri U 2015.
163 Id. at 1210.
164 1992 Cri U 1864.
165 Id. at 1865.

Vol. XXVHI] Criminal Procedure 133
I am inclined to hold that in a case where there is no rival claim and

accused claiming the property to be belonging to him has not
satisfactorily accounted for the same, court should make the departure
from the normal rule and without immediately on judgment of acquittal,
passing an order of disposal, make further enquiry to give opportunity
to accused who is acquitted and from whose custody property is taken
to satisfy the court that he is entitled to the same.
The claimant may have to approach civil courts.

In Virendrakumar Handa v. Dilawarkhan Alij Khan,166 the Bombay High
Court decided that the sessions judge should not interfere with the magistrate's
order under section 457 giving temporary possession to a party as it is an
interlocutory order.
VIII LIMITATION
In Mahendrakumar Lohia v. Sitaraman More,161 the Gauhati High Court

referring to the Supreme Court decision in Sarwan Singhm observed:169
I hold from the reading of sections 467 and 468 ... that for the purpose
of limitation as specified in section 468 ... the limitation starts on the
date of the offence or where the commission of the offence was not
known to the person aggrieved by the offence, the first day on which
such offence comes to the knowledge of such person or where it is not
known by whom the offence is committed, the first day on which the
identity of the offence is known to the person aggrieved by the offence.
The same principle was applied in a case involving offence connected with
return of stridhan. In Babram Singh v. Sukhwant Kaurm the Punjab and Haryana
High Court ruled that unless stridhan is returned, the offence of criminal
breach of trust under section 406 continues. Consequently the period of limitation
is not to be reckoned from the day when the wife was allegedly turned out of
the house of the husband but would continue giving a fresh cause of action
until the stridhan is returned.
With regard to the starting point of limitation of appeal under section 341,
the Orissa High Court in Prahallad Mallik v. State of Orissa, observed:171
In conclusion, we hold that the starting point of limitation of appeal

under section 341 ... is the date on which the Court records a conclusion
that there appears to be commission of offence under clause (b) of
sub-section (1) of Section 195.
166 1992 CriU 2476.

167 1992 Cri U 660.
168 State of Punjab v Sarwan Singh, AIR 1981 SC 1054.
169 Supra note 167 at 661.
170 1992 Cri U 792 (P & H).
171 1992 CnLJ 1432 at 1436,

In State of Karnataka v. B.S. Vijaya Murthy,m the Karnataka High Court

after examining section 468 said that it is clear that the section is applicable in
cases where the offences are punishable with fine, or in cases where the
punishment is imprisonment for one year or between one year and three years
and not otherwise.
In K Kasappa Naidu v. State ofA.P.m the Andhra Pradesh High Court has
also stated that if an offence is stated to be punishable with not less than six
months, it cannot be construed as a term not exceeding one year for the
purposes of section 468(2).
In Bhaskar Hanamatse Meharwade v. State of Karnataka,114 when tro
magistrate permitted addition of offence under sections 201 and 202 IPC in a
case under section 279/304A IPC making it barred by limitation, the Karnataka
High Court upheld the addition and prosecution and pointed out that under
section 468(3) the court is entitled to consider the period of limitation applicable
to the offence punishable with more severe punishment when the offences are
tried together.
IX QUASHING CRIMINAL PROCEEDINGS
In some cases the High Courts have, in exercise of their inherent powers,
quashed the proceedings on the ground that the allegations in the cases did not
make out offences triable; in some other cases the High Courts refused to
quash the proceedings.175
In J. Bhoomipalan v. Inspector of Police, Pallavaram,116 the Madras High
Court clarified that section 482 cannot be used to quash an order of the police
including the petitioner in the rowdy list. The court pointed out that article 226
of the Constitution could be invoked. The court said:177
[T]he inherent power is there for the High Court only for the two
specified purposes:
(i) to make such orders as may be necessary to give effect to any
order under this Code; and
(ii) to prevent abuse of process of any court or otherwise to secure
the ends of justice.
The court further reasoned:178
172 1992 Cri LJ 1690.

173 1992 Cri LJ 1214.
174 1992 Cri LJ 3985.
175 See ANZ Grindlays Bank v. Shipping & Clearing (Agents) Pvt. Ltd., 1992 Cri LJ 97;
Somasekharappa v. State of Karnataka, 1992 Cri LJ 1318; Kunnath Abdul Salam Abdurahiman
Vstad v. K.N. Mohammed Ali, 1992 Cri U 4079; T. Parthasarathy v. Smt. Madhu Sangal,
1992 Cri LJ 26; Arvind Kotecha, Director, Kotecha Investment Corporation Pvt. Ltd. v. Mahesh
Kumar Mathur, 1992 Cri LJ 124; Ashwani Kumar v. Delhi Administration, 1992 Cri U 446.
176 1992 Cri LJ 1235.
177 Id. at 1238.
178 Id. at 1239.

Section 482... thus is not available to any person or to the court to

interfere with the order passed by the executive government after the
conviction and sentence recorded by the Court.
In Dr. A.M. Berry v. Ravi Arora,m the Delhi High Court quashed the
proceedings based on the Supreme Court decision in Madhav Rao Scindiam
even at the initial stage. The court pointed out that the rejection of an earlier
petition on the ground of absence of prima facie case is no bar for filing
another on the same ground as it does not amount to review or revision of the
earlier order.
In Jitendra Mohan Gupta v. Statem the police submitted charge sheet
when the petition for quashing the case on the ground of absence of offence
was pending. The purpose was to deny the court jurisdiction under section 482.
The Delhi High Court responded:182
Once this court comes to the conclusion from the record made available
that no case is made out against the petitioner then there cannot be
any ban on the exercise of inherent power where this court feels that
there is an abuse of the process of the court or other extraordinary
situation excites the court's jurisdiction.
X SENTENCE/EXECUTION OF SENTENCE
In Hackbridge Hewitic and Easun Ltd. v. Provident Fund Inspectot

Exempted III-Division,m rejecting a plea that since the petitioners had already
paid the dues and the department was satisfied there should be no action, the
Madras High Court said:184
The doctrine of estoppel cannot be invoked to render valid a transaction

which the legislation has, on grounds of general public policy, enacted
is to be valid, or to give the court a jurisdiction which is denied to
it by statute, or to oust the court's statutory jurisdiction under an
enactment which precludes the parties contracting out of its provisions....
The court expressed the view that the trial court may in view of the
mitigating circumstances consider imposing only fine.
Both in Anirudha Pad v. State of Orissa,1*5 and Madhusudan Sahoo v.
Basuder Pradhan,xm the Orissa High Court ordered the trial courts to give the
accused the benefit of probation.
179 1992 Cri LJ 1327.

180 1988 Cri U 853.
181 1992 Cri LJ 4016.
182 M a t 4018.
183 1992 Cri U 303.
184 Id. at 306.
185 1992 Cri U 122.
186 1992 Cri LJ 1359.

The Madhya Pradesh High Court in State ofM.P. v. Mohandas,i87 has held
that the period of detention during the pendency of appeal can be set off under
section 428. The court reasoned:188
Considering the context in which the word 'trial' has been used in
section 428 ... and the object and purpose underlying that provision,
we are of the opinion that the word 'trial' used in that provision includes
also proceedings in appeal, like those in the instant appeal.
In State of Maharashtra v. Surbi Chagan Hirabhai Maraman Devsi,m

against the magistrate's awarding of lesser sentence though the offence carried
a much higher punishment on the ground of the respondent being a female, the
Bombay High Court responded:190
The reasoning of the... magistrate that from the scheme of the Code
of Cirminal Procedure the special privileges to ladies insofar as bail
is concerned should also be applied in the case of award of sentence
to females is without any basis. Once an accused is found guilty of
a given offence, then the sentence awarded is to be considered
irrespective of the sex of the accused.
Accordingly the sentence was enhanced.

Rejecting the plea for reducing the punishment in a case involving offences
of rash and negligent driving killing two and injuring one, the Delhi High
Court in Raj Pal v. State said:191
It was submitted that imposition of fine only could also meet the ends
of justice. In answer to it, I would feel content to refer to State of
Karnataka v. Krishna... wherein a conviction under section 304A the
sentence of fine only was imposed by the trial court and the High
Court had refused to enhance sentence. The Supreme Court was
"constrained" to do what the High Court "should have done" and
enhanced the sentence for the conviction under section 304A to 6
month's rigorous imprisonment and fine of Rs. 1000/- and in default
to undergo R.I. for two months.
The court followed the philosophy reflected in the Supreme Court judgment
in Rattan Singh v. State of Punjab,™2 in which it observed, "When a life has
been lost and the circumstances of driving are harsh, no compassion can be
given".
In Sebastian alias Kunju v. State of Kerala,193 the Kerala High Court suo
187 1992 Cri U 101.

188 Id. at 104-05.
189 1992 Cri LJ 1384.
190 Id at 1387.
191 1992 Cri LJ 1470 at 1472.
192 (1979)4 SCC 719.
193 1992 Cri LJ 3642.

motu took up the case in which the offender was sentenced to life imprisonment
under section 302 and one year's imprisonment under section 324 by the trial
court. In view of the circumstances of the case and the fact that the offender
had already paid Rs. 25,000/- to the mother of deceased, the High Court
revised conviction and reduced punishment.
The Punjab and Haryana High Court has stated in Jalandhar Singh v. State
of Punjab ™ that heinousness of crime is relevant in considering request for
premature release.
In Jadu alias Jadua Bhoi v. State of Orissa,195 the premature release prayed
for by the petitioner convicted of dacoity after serving nine years imprisonment
was advised to be given a chance to be released as he was not likely to repeat
the offences.
The Madhya Pradesh High Court following its decision in Babu Pahalwan
v. State of M.P.m has given release to the petitioner in Ramesh v. State of
M.P.,191 treating the earlier release for short period under certain conditions as
constituting custody for the purposes of section 433A.
In Thirumalareddy V. Thamasamma v. State of A. P.,19* the Andhra Pradesh
High Court deprecated the state releasing a life convict for attending assembly
sessions under section 432. The court pointed out that legislators have no
special privileges to be released. State does not have power to release the
cc wict when the appeal is pending. Its earlier decision have also been pointed
out by the court.
Compounding
The decision of the Supreme Court in Maheshchand v. State of Rajasthan,199
continued to have its impact. In Derbe alias Nirmala Naskar alias Nirmalmony
Naskar v. State,2™ the Calcutta High Court refused to follow Maheshchand. It
has very aptly tried to distinguish the decision thus:201
But what does and can bind the other courts as a precedent is not what
the Supreme Court does in fact in a given case, but what it declares
to be the law. We have not been able to glean any such declaration
of law in Maheshchand as to the compoundability of non-compoundable
offence. We have rather found indication to the effect that the Supreme
Court in Maheshchand decided to treat the matter "as a special case,
in view of the peculiar circumstances of the case". The decisions not
having determined or declared any question of law cannot amount to
a precedent to bind us in other cases.
However, Maheshchand, was considered and the compounding of offences
194 1992 Cri U 1772.

195 1992 Cri LJ 2117.
196 1990 Cri LJ 2704; see also XXVI ASIL 259 (1990).
197 1992 Cri LJ 2504.
198 1992 Cri U 3016.
199 AIR 1988 SC 2111.
200 1992 Cri LJ 74,
201 Id. at 75.

under section 498A IPC was approved in State of Rajashtan v. Gopal Lai202 by
the Rajasthan High Court. The court sought for legislative recognition of
compounding offences such as cruelty under section 498A as it may lead to
peace in the family.
In State of Karnataka v. Kudligere Hanumanthappa203 the Karnataka High
Court declared that offence under the provisions of the Civil Rights Act, 1976
are not to be compoundable.
202 1992 Cri LJ 273; see also Suresh Nathmal v. State of Maharashtra, 1992 Cri LJ 2106,
203 1992 Cri U 832.

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7

IN THE survey year a large number of decisions on different aspects of criminal

I WORKING OF FUNCTIONARIES IN CRIMINAL JUSTICE SYSTEM

* Professor, Department of Law, Cochin University of Science and Technology, Kochi.

www.ili.ac.in The Indian Law Institute

Role of the courts

www.ili.ac.in The Indian Law Institute

Whenever it is not possible to produce an accused before the Magistrate,

Filing of bail application simultaneously in different courts may lead

In view of the explicit language of section section 167(2)(b)14 it is not

11 1992 Cri LJ 2998.

www.ili.ac.in The Indian Law Institute

What amounts to first information report (FIR)

The first information or first information report though not mentioned

First information and quashing of FIR

www.ili.ac.in The Indian Law Institute

Further investigation under section 173(8)

Purpose of test indentiflcation parade (TIP)

25 1992 Cri U 661.

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serve to prove the authority with material to assume themselves if the

Counsel's presence during interrogation

Statement under section 164

The general purpose of recording such a statement of a witness is to

In Ambika Prasad v. State of U.P.,36 the Allahabad High Court clarified

33 1992 Cri U 2761.

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Enforcement, New Delhi3* has stated that the requirement of administering

High Court has power to order investigation

Dying declaration recorded by police officer in the presence of doctor admissible

Impact of section 167(5) on a summons case beyond six months

Bail under the proviso to section 167(2)

38 1992 Cri LJ 1888.

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In Srisivanna v. State of Karnataka,45 the Karnataka High Court said that if

Impact of submission of charge sheet.

When an accused person is released on the ground that the charge

The Supreme Court has in Aslam Babulal Desai v. State of Maharashtra50

We are, therefore, of the view that once an accused is released on bail

The delay in completion of the investigation can be on pain of the

45 1992 Cri U 2287.

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Ill INITIATION OF CRIMINAL PROCEEDING

Cognizance order on material other than police report

The reading of the above referred provision of section 195 coupled

53 1992 Cri U 4022.

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the court, where forgery was committed, by the investigating agency

The purpose of sanction being vested in a departmental authority is to

Initiation of action against additional accused

60 1992 Cri LJ 3752.

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AH witnesses need not be examined in enquiry on complaint

There is nothing in law to prevent the criminal courts from taking

In Rakesh Kumar v. State of Punjab69 involving trial of offences under

Considerations in granting bail

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Rajasthan,11 Mohamad Yusuf Ali v. Asst. Collector of Customs12 it has been

It is really disturbing that the trial courts are so unaware of liberties

Bail granted by police

My conclusion on consideration of different provisions as discussed

In Nazeem v. Asst. Collector, Customs,™ it has been ruled by the Bombay