Loc Ii Vol 1

NATIONAL UNIVERSITY OF STUDY AND
RESEARCH IN LAW, RANCHI
SESSION: JULY- DEC, 2023
STUDY MATERIAL
SEMESTER-V
SUBJECT- LAW OF CRIMES II
VOLUME I
PREPARED BY: DR. JULIAN SEAL PASARI
1
TABLE OF CONTENTS
Sr.No. Particulars Pg. No.
1 Ramashraya Chakravarti v. State of M. P.; AIR 1976 SC 392 04
2 Sunil Batra v. Delhi Administration; AIR 1978 SC 1675 06

3 Saroop Kumar v. State of H. P.; 1989 CriLJ 1884 57
4 Harpal Singh Chauhan v. State of U.P.; AIR 1993 SC 2436 61
5 D. K. Basu v. State of W.B.; AIR 1997 SC 610 67
6 Sunil Kumar @ Sudhir Kumar & Anr v. The State of Uttar Pradesh; (2021) 5 SCC 81
560
7 Sharad Hiru Kolambe v. State of Maharashtra; (2018) 18 SCC 718 87
9 State of Haryana v. Ch. Bhajanlal, AIR 1992 SC 604 94
11 Smt. Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble; AIR 2003 SC 4567 119
12 Munshi Singh Gautam v. State of M. P.; AIR 2005 SC 402 127
13 State of M.P. through. CBI v. Paltan Malha, AIR 2005 SC 733 135
14 CBI v. Sri Ravi Shanker Srivastava; AIR 2006 SC 2872 144
15 Arnesh Kumar v. State of Bihar; (2014) 8 SCC 273 150
16 Lalita Kumari v. Government of U.P AIR 2014 SC 187 155
17 Vinubhai Haribhai Malaviya and Ors. v. State of Gujarat: 2019 SCC Online SC 183
1346
18 Nevada Properties Pvt. Ltd. through its Director v. State of Maharashtra: 2019 205
SCC Online SC 1247
19 Ritesh Sinha v. State of Uttar Pradesh, (2019) 8 SCC 1 216
20 Aman Preet Singh vs. CBI through Director ; (2021) SCC Online SC 941 223
21 Dr. S.S. Khanna v. Chief Secretary, Patna 1983 SCC (3) 42 226
22 KM Mathew vs. State of Kerala, 1992 (1) SCC 217 230
23 Anil Saran v. State of Bihar; AIR 1996 SC 204 232
24 Mohinder Singh v. State (Chandigarh Admn.), (1997)115PLR623 234
25 Adalat Prasad v. Rooplal Jindal and Ors. (2004)7 SCC 238 237
26 Mohammad. Safi v. State of W. B.; AIR 1966 SC 69 240
27 Banarsi Das v. Mohan Lal; 1986 CriLJ 1154 (P&H) 244
28 P. Gopalkrishnan @Dileep v. State of Kerala: 2019 SCC Online SC 1532 247

29 Balchand Jain v. State of M.P., AIR 1976 SC 366 268
30 Moti Ram v. State of M.P.; AIR 1978 SC 1594 279

31 State v. Jaspal Singh Gill; AIR 1984 SC 1503 286
32 Jayendra Saraswathi Swamigal v. State of Tamil Nadu; AIR 2005 SC 716 289
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33 Rajiv Ranjan Singh ‘Lalan’ v. Union of India; (2006) 6 SCC 613 294
34 Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. AIR 2011 SC 312 316
35 Pradeep Ram v. State of Jharkhand, 2019 SCC Online SC 825 340

36 Gautam Navlakha v. National Investigation Agency, 2021 SCC OnLine SC 382 359
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MANU/SC/0197/1975
Equivalent Citation: AIR1976SC392, 1976CriLJ334, 1976()JLJ153(SC), (1976)1SCC281, (1976)SCC(Cri)1,

[1976]2SCR713, 1975(7)UJ957
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 154 of 1975
Decided On: 13.11.1975
Appellants: Ramashraya Chakravarti

Vs.
Respondent: State of Madhya Pradesh
Hon'ble Judges:
N. L. Untwalia and P. K. Goswami, JJ.
JUDGMENT
P.K. Goswami J.
1. To adjust the duration of imprisonment to the gravity of a particular offence is not a ways an easy task.
Sentencing involves an element of guessing but often settles down to practice obtaining in a particular court with
inevitable differences arising in the context of the times and events in the light of social imperatives. It is always a
matter of judicial discretion subject to any mandatory minimum prescribed by law.
2. Hegel in his 'Philosophy of Right' pithily put the difficulty as follows:
Reason cannot determine nor can the concept provide any principle whose application could decide whether justice
requires for an offence (i) a corporal punishment of forty lashes or thirty nine, or (ii) a fine of five dollars or four
dollars ninety three, four, etc., cents, or (iii) imprisonment of a year or three hundred and sixty-four, three, etc., days
or a year and one, two, or three days, And yet injustice is done at once if three is one lash too many, or one dollar or
one cent, one week in prison or one day, too many or too few.
The present appeal by special leave being limited to sentence we are to consider about the appropriate deserts for
the appellant in this case.
3. The appellant was a circle Organiser in the Tribal Welfare Department at Lohandiguda in the State of Madhya
Pradesh. He was entrusted with the disribution of stipends to Adivasi students of the Tribal Welfare Department
School. He misappropriated a sum of Rs. 500/- meant for four students and also forged certain entries in the bills.
He was convicted under Section 409 and Section 467 I.P.C. by the Sessions Judge and sentenced for each head of
charge to concurrent four year's rigorous imprisonment and also to a fine of Rs. 500/- in default to rigorous
imprisonment for six months. The High Court on appeal maintained the conviction but reduced the sentence to two
year's rigorous imprisonment maintaining the fine.
4. From a perusal of the judgment of the High Court which is the only document in the paper book in addition to
the special leave petition it is not very clear about the offence of forgery committed by the accused. We would
however, say nothing more than that.
5. In judging the adequacy of a sentence the nature of the offence, the circumstances of its commission, the age and
character of the offender, injury to individuals or to society, effect of the punishment on the offender, eye to
correction and reformation of the offender, are some amongst many other factors which would be ordinarily taken
into consideration by courts. Trial Courts in this country already over-burdened with work have hardly any time to
set apart for sentencing reflection. This aspect is missed or deliberately ignored by the accused lest a possible plea
for reduction of sentence maybe considered as weakening his defence. In a good system of administration of
criminal justice pre-sentence investigation may be of great sociological value. Throughout the world
humaniterianism is permitting into penology and the courts are expected to discharge their appropriate roles.
4
6. The appellant is a youngman of abobut 30 years. He is an educated person who was employed in Government
service. But for the forgery he could have been tried in the court Section 409 I.P.C. and in the case the maximum
sentence of imprisonment would have been two years rigorous imprisonment. On the face of the High Courts
judgment, as noticed above, the part played by the appellant in the forgery is rather a little obscure. The appellant
sure to lose his employment under the Government. There is already indignity heaped upon him on account of
conviction. He has no opportunity to commit such offences as a Government servant in the future. Any sentence of
imprisonment imposed upon him will be a deterrent to others similarly disposed in such unlawful pursuits. The
appellant was refused bail in this Court and he is said to have served about nine months in prison.
7. While we do not minimise the seriousness of the offences, having regard to the circumstances mentioned above,
we are of opinion that it will meet the ends of justice in the case if we order, which we do, that the appellants
sentence be reduced to one Year's rigorous imprisonment only and in addition to a fine of Rs. 500/- only, in default
rigorous imprisonment for six months. The appeal is party allowed with modification of the sentence as ordered.
© Manupatra Information Solutions Pvt. Ltd.
5
MANU/SC/0184/1978
Equivalent Citation: AIR1978SC1675, AIR1980SC1579, 1978CriLJ1741, 1980CriLJ1099, (1978)4SCC494,

(1980)3SCC488, (1979)SCC(Cri)155, (1980)SCC(Cri)580, [1979]1SCR392, [1980]2SCR557
Writ Petition No. 2202 and 568 of 1977
Appellants: Sunil Batra

Vs.
Respondent: Delhi Administration and Ors. etc.
[Alongwith Writ Ptn. No. 565 of 1977]
Hon'ble Judges:
Y. V. Chandrachud, C.J., V. R. Krishna Iyer, S. Murtaza Fazal Ali, P. N. Shingal and D. A. Desai, JJ.
JUDGMENT
Krishna Iyer, J.
1.The province of prison justice, the conceptualization of freedom behind bars and the role of judicial power as
constitutional sentinel in a prison setting, are of the gravest moment in a world of escalating torture by the minions
of State, and in India, where this virgin area of jurisprudence is becoming painfully relevant. Therefore, explicative
length has been the result; and so it is that, with all my reverence for and concurrence with my learned brethren on
the jurisdictional and jurisprudential basics they have indicated, I have preferred to plough a lonely furrow.
The Core-questions.
2. One important interrogation lies at the root of these twin writ petitions : Does a prison setting, ipso facto, out-law
the rule of law, lock out the judicial process from the jail gates and declare a long holiday for human rights of
convicts in confinement, and (to change the mataphor) if there is no total eclipse, what luscent segment is open for
judicial justice? Three inter-related problems project themselves : (i) a juridictional dilemma between 'hands off
prisons' and 'take over jail administration' (ii) a constitutional conflict between detentional security and inmate
liberties and (iii) the role of processual and substantive reasonableness in stopping brutal jail' conditions. In such
basic situations, pragmatic belighted belighted by the Preamble to the Constitution and balancing the vulnerability of
'caged' human to State torment and the prospect of escape or internal disorder, should be the course for the court to
navigate.
3. I proceed to lay bare the broad facts, critically examine the legal contentions and resolve the vital controversy
which has profound impact on our value system. Freedom is what Freedom does-to the last and the least-
Antyodaya.
4. Two petitioners-Batra and Sobraj-one Indian and the other French, one under death sentence and the other
facing grave charges, share too different shapes, the sailing and arrows of incarceratory fortune, but instead of
submitting to what they describe as shocking jail injustice, challenge, by separate writ petitions, such traumatic
treatment as illegal. The soul of these twin litigations is the question, in spiritual terms, whether the prison system
has a conscience in constitutional terms, whether a prisoner, ipso facto, forfeits personhood to become a rightless
slave of the State and, in cultural terms, whether man-management of prison society can operate its arts by
'zoological' strategies. The grievance of Batra, sentenced to death by the Delhi Sessions Court, is against de facto
solitary confinement, pending his appeal, without de jure sanction. And the complaint of Sobraj is against the
distressing disablement, by bar fetters, of men behind bars especially of undertrials, and that for unlimited duration,
on the ipse dixit of the prison 'brass'. The petitioners, seek to use the rule of law to force open the iron gates of
Tihar Jail where they are now lodged, and the Prison Administration resists judicial action, in intra-mural matters as
forbidden ground, relying on Sections 30 and 56 of Prisons Act, 1894 (the Act, hereafter). The Petitioners invoke
Articles 14, 21 (and 19, in the case of Batra) of the Constitution.
6
5. The paramount law. Prison discipline and judicial oversight.
6. The jurisdictional reach and range of this Court's writ to hold prison caprice and cruelty in constitutional leash is
incontestable, but teasing intrusion into administrative discretion is legal anathema, absent breaches of constitutional
rights or prescribed procedures. Prisoners have enforceable liberties devalued may be but not demonetized; and
under our basic scheme, Prison Power must bow before judge Power if fundamental freedoms are in jeopardy. The
principle is settled, as some American decisions have neatly put it Federal Reporter 2d. Series, Vol. 386, p. 684;
Donnel Douglas v. Maurice H. Sigler.
The matter of internal management of prisons or correctional institutions is vested in and rests with the hands of
those institutions operating under statutory authority and their acts and administration of prison discipline and
overall operation of the institution are not subject to court supervision or control absent most unusual
circumstances or absent a violation of a constitutional right. But Corwin notes.
Federal courts have intensified their oversight of State penal facilities, reflecting a heightened concern with the
extent to which the ills that plague so-called correctional institution-overcrowding, understaffing, unsanitary
facilities, brutality, constant fear of violence, lack of adequate medical and mental health care, poor food service,
intrusive correspondence restrictions, inhumane isolation, segregation, inadequate or non-existent rehabilitative
and/or educational programs, deficient recreational opportunities-violate the Eighth Amendment ban on "cruel and
unusual punishments.
7. The 'hands-off' doctrine is based on the fallacious foundation stated in 1871 in Ruffin v. Commonwealth :
He has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which
the law in its humanity accords to him. He is for the time being, the slave of the State 62 v (21 Gratt) 790, 796
(1871).
During the century that followed, the American courts have whittled away at the doctrine and firstly declared in
Jordan 257 Fed. Suppl. 674 Jordan v. Fitzharris (N.D. Cal. 1966) that when the responsible prison authorities... have
abandoned elemental concepts of decency by permitting conditions to prevail of a shocking and debased nature,
then the courts must intervene promptly to restore the primal rules of a civilized community in accord with the
mandate of the Constitution of the United States.
8. In Coffin v. Reichard, the court was persuaded to intervene when, while lawfully in custody a prisoner is deprived
of some right, the loss of which makes his imprisonment more burdensome than the law permits :
When a man possesses a substantial right, the Courts will be diligent in finding a way to protect it. The fact that a
person is legally in prison does not prevent the use of habeas corpus to protect his other inherent rights.
9. In John v. Dys, the Court again held it preferable "that a potentially dangerous individual be set free than the least
degree of and impairment of an individual's basic constitutional rights be permitted. Thus, the constitutionality of
imprisonment, its duration, and conditions can be validity tested by means of habeas corpus.
10. The harshest blow to the old 'hands-off' doctrines was struck by Manree v. Pepa, 365, US 167, 5 L. Ed. 2d, 492
(1961).
Where the court insisted on "civilized standards of humane decency" and interdicted the subhuman condition which
could only serve to destroy completely the spirit and undermine the sanity of the prisoner.
11. By 1975, the United States Supreme Court sustained the indubitable proposition that constitutional rights did
not desert convicts but dwindled in scope. A few sharp passages from Eve Pall 417 US 817 41 Ed. 2d. 495 opinions
and some telling observations from Charles Wolff 41 L. Ed. 2d. 935 nail the argument that prisoners are non-
persons.
12. Mr. Justice Steward, who delivered the opinion of the Court in Eve Pell observed "Courts cannot, of course,
abdicate their constitutional responsibility to delineate and protect fundamental liberties. But when the issue
involves a regulation limiting one of several means of communication by an inmate, the institutional objectives
7
furthered by that regulation and the measure of judicial deference owed to corrections officials in their attempt to
serve these interests are relevant in gauging the validity of the regulation."
13. Mr. Justice Douglas, in his dissenting view, stated "Prisoners are still 'persons' entitled to all constitutional rights
unless their liberty has been constitutionally curtailed by procedures that satisfy all the requirements of due process,
(emphasis, added).
14. In the later case of Charles Wolff, the court made emphatic statements driving home the same point. For
instance, Mr. Justice White, who spoke for the Court, observed : "Lawful imprisonment necessarily makes
unavailable many rights and privileges of the ordinary citizen, a "retraction justified by the considerations underlying
our penal system. But though his rights may be diminished by environment; a prisoner is not wholly stripped of
constitutional protections when he is imprisoned for crime. There is no Iron curtain drawn between the
Constitution and the prisons of this country,... In sum there must be mutual accommodation between institutional
needs and objectives and the provisions of the Constitution that are of general application."
15. Mr. Justice Marshall expressed himself explicitly "I have previously stated my view that a prisoner does not shed
his basic constitutional rights at the prison gate, and I fully support the court's holding that the interest of inmates in
freedom from imposition of serious discipline is a 'liberty' entitled to due process protection."
16. Mr. Justice Douglas, again a dissenter, asserted : "Every prisoner's liberty i.e., of course, circumscribed by the
very fact of his confinement, but his interest in the limited liberty left to him is then only the more substantial.
Conviction of a crime does not render one a non-person whose rights are subject to the whim of the prison
administration, and therefore, the imposition of any serious punishment within the prison system requires
procedural safeguards. Of course, a bearing need not be held before a prisoner is subjected to some minor
deprivation, such as an evening's loss of television privileges. Placement in solitary confinement, however, is not in
that category."
17. I may now crystalise this legal discussion. Disciplinary autonomy, in the hands of mayhem-happy jail staffers,
may harry human rights and the wails from behind the high walls will not easily break through the sound-proof,
night-proof barrier to awaken the judges' writ jurisdiction. So, it follows that activist legal aid as a pipeline to carry to
the court the breaches of prisoners' basic rights is a radical humanist concomitant of the rule of prison law. And in
our constitutional order it is axiomatic that the prison laws do not swallow up the fundamental rights of the legally
unfree, and, as sentinels on the qui vive, courts will guard freedom behind bars, tampered, of course, by
environmental realism but intolerant of torture by executive echelons. The policy of the law and the paramountcy of
the Constitution are beyond purchase by authoritarians glibly invoking 'dangerousness' of inmates and peace in
prisons.
18. If judicial realism is not to be jettisoned, judicial activism must censor the argument of unaccountable prison
autonomy.
19. 'Dangerousness' as a cover for police and prison atrocities is not unusual, as a recent judicial enquiry by Mr.
Justice Ismail in a Tamil Nadu prison indicates :
"The black hole of Calcutta is not a historical past but a present reality. The Report finds the detenus were
deliberately lodged in the nineth block which was previously occupied by leprosy prisoners.
On the night of February 2, "there were brutal, merciless and savage beatings of the detenus in the nineth block",
earlier in the afternoon, the Chief Head Warder went to the block and noted down the names of the detenus and the
cells in which they were locked up. The exercise was undertaken. The Judge finds that "the beating of the detenus
that took place on the night of February 2, 1976 was a premeditated, pre-planned and deliberate one and not
undertaken on the spur of the moment either because of any provocation offered by the detenus to go into the cells
as contended by the jail officials"
(Other lurid judicial reports from other States also have appeared.)
20. After all, though the power vests in the Superintendent, it is triggered by the guard. We cannot, without check
permit human freedom to be gouged by jail guards under guise of 'encounters' and 'escape attempts'.
8
21. Mr. Justice Douglas stressed this aspect in Wolff v. Mcdonnel 41 L. Ed. 2d. 935 :
"We have made progress since then but the old tradition still lingers. Just recently an entire prison system of one
state was held as inhumane.... The lesson to be learned is that courts cannot blithely defer to the supposed expertise
of prison officials when it comes to the constitutional rights of inmates.
"Prisoners often have their privilege revoked, are denied the right of access to counsel, sit in solitary or maximum
security or less accrued 'good time' on the basis of a single, unreviewed report of a guard. When the Courts defer to
administrative discretion, it is this guard to whom they delegate the final word on reasonable Prison Practices. This
is the central evil in prison...the unreviewed discretion granted to the poorly trained personnel who deal directly with
prisoners."
22. If wars are too important to be left to the generals, surely prisoners' rights are too precious to be left to the
jailOrs. We must add a caveat. Where prison torture is the credible charge and human person the potential casualty,
the benefit of scepticism justly belongs to the individual's physical-mental immunity, not to the hyper-sensitivity
about safe custody.
Some welcome features : Community based litigation and participative justice, supportive of democratic legality.
23. A few special forensic features of the proceedings before us have seminal significance and I advert to them in
limine as helpful factors in the progressive development of the legal process.
24. The essence of this class of litigation is not adjudication on particular grievances of individual prisoners but
broad delivery of social justice. It goes beyond mere moral weight-lifting or case-by-case correction but transcend
into forensic humanisation of a harsh legal legacy which has for long hidden from judicial view. It is the necessitous
task of this Court, when invited appropriately, to adventure even into fresh areas of agony and injustice and to inject
humane constitutional ethic into imperial statutory survivals, especially when the (prison) Executive, thirty years
after Independence, defends the alleged wrong as right and the Legislatures, whose members, over the decades, are
not altogether strangers to the hurtful features of jails, are perhaps pre-occupied with more popular business than
concern for the detained derelicts who are a scattered, voiceless noiseless minority.
25. Although neither of these writ petitions is a class action in the strict sense, each is representative of many other
similar cases. I think these 'martyr' litigations possess a beneficient potency beyond the individual litigant, and their
consideration on the wider representative basis strengthens the rule of law. Class actions, community litigations,
representative suits, test cases and public interest proceedings' are in advance on our traditional court processes and
faster people's vicarious involvement in our justice system with a broadbased concept of locus standi so necessary in
a democracy where the masses are in many senses weak.
26. Another hopeful processual feature falls for notice. Citizens for Democracy, an organisation operating in the
field of human rights, has been allowed to intervene in the Sobraj case and, on its behalf. Shri Tarkunde has made
legal submissions fuelled by passion for jail reforms. The intervention of social welfare organisation in litigative
processes pregnant with wider implications is a healthy mediation between the People and the Rule of law. Wisely
permitted, participative justice, promoted through mass based organizations and public bodies with special concern
seeking to intervene, has a democratic potential for the little men and the law. We have essayed at length the
solutions to the issues raised and heard parties ad libitum because of their gravity and novelty...although a capsulated
discussion might make-do. A short cut is a wrong cut where people's justice is at stake.
this Court's role as catalyst of prison justice.
27. It is an unhappy reflection, charged with pessimism and realism, that Governments have come and
Governments have gone but the jails largely manage to preserve the macabre heritage and ignore the mahatma's
message. And this, with all the reform bruited about for decades and personal experience of statesman in state
power. The learned Attorney General at a very early stage of one of these cases, and the learned Additional Solicitor
General as well as Shri Tarkunde in the course of their submissions, did state that this Court's reformist response to
the challenges raised here may go a long way in catalysing those humane changes in the prison laws and practices
already high on the national agenda of Government. Disturbing Commission Reports and public proceedings put to
shame prison justice and shake people's faith in the firm fighting functionalism of the judicial process. So I have
stretched the canvas wide and counsel have copiously helped the Court.
9
Prison decency and judicial responsibility
28. What penitentiary reforms will promote rapport between current prison practices and constitutional norms ?
Basic prison decency is an aspect of criminal justice. And the judiciary has a constituency of which prisoners,
ordered in by court sentence, are a numberous part.
29. This vicarious responsibility has induced the Supreme Court of the United States to observe :
In a series of decisions this Court held that, even though the Governmental purpose be legitimate and substantial,
that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be
more narrowly achieved. The breadth of legislative abridgement must be viewed in the light of less drastic means for
achieving the same basic purpose.
(Shelton v. Tucker, 364 US 476 (1950) at p. 468)
30. Karuna is a component of jail Justice.
31. Ex post facto justification of prison cruelty as prevention of disorder and escape is often a dubious allegation.
Another factor often forgotten, while justifying harsh treatment of prisoners, is the philosophy of rehabilitation. The
basis is that the custodial staff can make a significant contribution by enforcing the rule of prison law and preparing
convicts for a law-abiding life after their release-mainstreaming, as it is sometimes called.
32. Mr. Justice Stewart in Pall adverted to the twin objectives of imprisonment. 'An important function of the
correction system is the deterrence of crime. The premise is that by confining criminal offenders in a facility where
they are isolated from the rest of society, a condition that most people presumably find undesirable, they and others
will be deterred from committing additional criminal offences. This isolation, of course, also serves a protective
function by quarantining criminal offenders for a given period of time while, it is hoped, the rehabilitative processes
of the corrections system work to correct the offender's demonstrated criminal proclivity. Thus, since most
offenders will eventually return to society, another paramount objective of the corrections system is the
rehabilitation of those committed to its custody. Finally, central to all other corrections goals is the institutional
consideration of internal security within the corrections facilities themselves. It is in the light of these legitimate
penal objectives that a court must assess challenges to prison regulations based on asserted constitutional rights of
prisoners.'
33. The benign purpose behind deprivation of freedom of locomotion and expression is habilitation of the criminal
into good behavior, ensuring social defence on his release into the community. This rationale is subverted by
torture-some treatment, antagonism and bitterness which spoil the correctional process. 'Fair treatment...will
enhance the chance of rehabilitation by reactions to arbitrariness' (33 L. Ed. 2d. 484).
34. Rehabilitation effort as a necessary component of incarceration is part of the Indian criminal justice system as
also of the United States. For instance, this correctional attitude has been incorporated as a standard by the National
Advisory Commission on Criminal Justice Standards and Goals :
...A rehabilitative purpose is or ought to be implicit in every sentence of an offender unless ordered otherwise by the
sentencing court.
35. In Mohammad Giasuddin v. State of A.P. MANU/SC/0108/1977 : 1977CriLJ1557 this Court strongly endorsed
the importance of the hospital setting and the therapeutic goal of imprisonment :
Progressive criminologists across the world will agree that the Gandhian diagnosis of offenders as patients and his
conception of prisons as hospitals-mental and moral-is the key to the pathology of delinquency and the therapeutic
role of 'punishment'. The whole man is a healthy man and every man is born good. Criminality is a curable
deviance.... Our prisons should be correctional houses, not cruel iron aching the soul.... This nation cannot-and, if it
remembers its incarcerated leaders and freedom fighters-will not but revolutionize the conditions inside that grim
little world. We make these persistent observations only to drive home the imperative of freedom-that its
deprivation, by the State, is validated only by a plan to make the sentencees more worthy of that birthright. There is
a spiritual dimension to the first page of our Constitution which projects into penology.
10
All this adds up to the important proposition that it is a crime of punishment to further torture a person undergoing
imprisonment, as the remedy aggravates the malady and thus ceases to be a reasonable justification for confiscation
of personal freedom and is arbitrary because it is blind action not geared to the goal of social defence, which is one
of the primary ends of imprisonment. It reverses the process by manufacturing worse animals when they are
released into the mainstream of society. Roger G. Lanphear, in a recent study, has quoted a telling letter from a
prisoner which makes the poignant point.
Dear Mrs. Stender : You cannot rehabilitate a man through brutality and disrespect. Regardless of the crime a man
may commit, he still is a human being and has feelings. And the main reason most inmates in prison today
disrespect their keepers is because they themselves (the inmates) are disrespected and are not treated like human
beings. I myself have witnessed brutal attacks upon inmates and have suffered a few myself, uncalled for. I can
understand a guard or guards restraining an inmate if he becomes violent. But many a time this restraining has
turned into a brutal beating. Does this type of treatment bring about respect and rehabilitation ? No. It only instills
hostility and causes alienation toward the prison officials from the inmate or inmates involved. If you treat a man
like an animal, then you must expect him to act like one. For every action, there is a reaction. This is only human
nature. And in order for an inmate to act like a human being you must trust him as such. Treating him like an animal
will only get negative results from him. You can't spit in his face and expect him to smile and say thank you. I have
seen this happen also. There is a large gap between the inmate and prison officials. And it will continue to grow until
the prison officials learn that an inmate is no different than them, only in the sense that he has broken a law. He still
has feelings, and he's still human being. And until the big wheels in Sacramento and the personnel inside the prisons
start practicing rehabilitation, and stop practising zoology, then they can expect continuous chaos and trouble
between inmates and officials. Lewis Moore
36. We must heed the wholesome counsel of the British Royal Commission :
If the suggestion were that, because of enormity of the crime, murderers ought to be subjected to special rigorous
treatment, this would run counter to the "accepted principle of modern prison administration that imprisonment is
itself the penalty and that it is not the function of the Prison authorities to add further penalties day by day by
punitive conditions of discipline, labour diet and general treatment.
37. The relevance of the thought that accentuation of injury, beyond imprisonment, may be counter-productive of
the therapeutic objective of the penal system will be clear when we test such infliction on the touchstone of Article
19 and the 'reasonableness' of the action. In depth application of these seminal aspects may be considered after
unfolding the fact-situations in the two cases. Suffice it to say that, so long as judges are invigilators and enforcers of
constitutionality and performance auditors of legality, and convicts serve terms in that grim microcosm called prison
by the mandate of the court, a continuing institutional responsibility vests in the system to monitor in the
incarceratory process and prevent security 'excesses'. Jailors are bound by the rule of law and cannot inflict
supplementary sentences under disguises or defeat the primary purposes of imprisonment. Additional torture by
forced cellular solitude or iron immobilisation-that is the complaint here-stands the peril of being shot down as
unreasonable, arbitrary and is perilously near unconstitutionality.
Court's interpretative function when faced with invalidatory alternative.
38. Batra puts in issue the constitutionality of Section 30(2) of the Prisons Act, 1894 (the Act, for short) while
Sobhraj impugns the vires of Section 56. But the Court does not 'rush in' to demolish provisions where judicial
endeavour, amelioratively interpretational, may achieve both constitutionality and compassionate resurrection. The
salutary strategy of sustaining the validity of the law and softening its application was, with lovely dexterity, adopted
by Sri Soli Sorabjee appearing for the State. The semantic technique of updating the living sense of a dated
legislation is, in our view, perfectly legitimate, especially when, in a developing country like ours, the corpus juris is,
in some measure a Raj hang-over.
39. Parenthetically, we may express surprise that, going by the Punjab Jail Manual (1975), the politically notorious
Regulation III of 1818 and ban on 'Gandhi cap' still survive in Free India's Corpus Juris what with all the sound and
fury against detention without trial and national homage to Gandhiji.
40. To meet the needs of India today, the imperatives of Independence desiderate a creatives role for the Courts in
interpretation and application, especially when enactments from the imperial mint govern. Words grow with the
world. That is the dynamics of semantics.
11
41. Read Dickerson has suggested :
...the Courts are at least free from control by original legislatures. Curtis, for one, has contended that, consistently
with the ascertained meaning of the statute, a court should be able to shake off the dust of the past and plant its feet
firmly in the present.
...The legislature which passed the statute has adjourned and its members gone home to their constituents or to a
long rest from all law making. So why bother about what they intended or what they would have done ? Better be
prophetic than archaeological, better deal with the future than with the past, better pay a decent respect for a future
legislature than stand in awe of one that has folded up its papers and joined its friends at the country club or in the
cemetery....
...Let the courts deliberate on what the present or future legislature would do after it had read the court's opinion,
after the situation has been explained, after the court has exhibited the whole fabric of the law into which this
particular bit of legislation had to be adjusted.
42. Constitutional deference to the Legislature and the democratic assumption that people's representatives express
the wisdom of the community lead courts into interpretation of statutes which preserves and sustains the validity of
the provision. That is to say, courts must, with intelligent imagination, inform themselves of the values of the
Constitution and., with functional flexibility, explore the meaning of meanings to adop that construction which
humanely constitutionalizes the statute in question. Plainly stated, we must endeavour to interpret the words in
Sections 30 and 56 of the Prisons Act and the paragraphs of the Prison Manual in such manner that while the words
belong to the old order, the sense radiates the new order. The luminous guideline on Weems v. United States sets
our sights high 54 L. ed. 801 (Weems v. United States) :
Legislation, both statutory and constitutional is enacted, it is hue, from an experience of evils, but-its general
language should not, therefore, be necessarily confined to the form that civil had therefore, taken. Time works
changes, brings into existence new conditions and purposes. Therefore, a principle, to be vital, must be capable of
wider application than the mischief which gave it birth. This is peculiary true of constitutions. They are not
ephemeral enactments designed to meet passing occasions. They are, to use the words of Chief Justice Marshall,
"designed to approach immortality as nearly as human institutions can approach it". The future is their care, and
provisions for events of good and bad tendencies of which no prophecy can be made. In the application of a
constitution, therefore, our contemplation cannot be only of what has been, but of what may be. Under any other
rule a Constitution would indeed be as easy of application as it would be. Under any other rule a Constitution would
indeed be as easy of applications as it would be deficient in efficacy and power. Its general principles would have
little value, and be converted by precedent into impotent and lifeless formulas. Rights declared in the words might
be lost in reality. And this has been recognised. The meaning and vitality of the Constitution have developed against
narrow and restrictive construction.
43. A note in Harvard Law Review Hervard Law Review, Vol. 24 (1910-11) p. 54-55 commenting on Weems v.
United States urges such a progressive construction :
The inhibition of the infliction of 'cruel and unusual punishment' first appears in the Bill of Rights of 1680, at a time
when the humanity-of Judge Jeffreys of Bloody Assizes' fame and of his fellows under the Stuarts, loomed large in
the popular mind.... In the eighth Amendment to the Constitution of the United States the same prohibition is
found...(Courts) have held that whatever is now considered cruel and unusal in fact is forbidden by it. Another
difference of interpretation intersects these divergent views and separates the Courts which confine the words to the
kind or mode of punishment from those who extend their meaning to include as well its degree or severity. In a
recent case concerning such a provision in the Bill of Rights of the Philippine Islands, which has the same meaning
as the Eighth Amendment, the Supreme Court of United States, committing itself to the most liberal interpretation,
not only held that the clause was concerned with the degree of punishment, but approved of the extension of its scope to
keep pace with the increasing enlightenment of public opinion (Weems v. United States, 217 US, 349). It is, indeed, difficult to believe
that a law passed in the twentieth century is aimed solely at abuses which became almost unknown two hundred years before, even though
it is an exact transcript of an old Bill. And excessive punishment may be quite as bad as punishment cruel in its very
nature. The fear of judicial intermeddling voiced by one of the dissenting judges seems scarcely warranted, for the
power to prevent disproportionate punishment is to be exercised only when the punishment shocks public feeling.
With thin limitation, the progressive construction of this clause laid down by this case seems desirable.
(emphasis added)
12
44. The jurisprudence of statutory construction, especially when a vigorous break with the past and smooth
reconciliation with a radical constitutional value-set are the object, uses the art of reading down and reading wide, as
part of interpretational engineering. Judges are the mediators between the societal tenses. this Court in R.L. Arora v.
State of Uttar Pradesh and Ors. MANU/SC/0033/1964 : [1964]6SCR784 and in a host of other cases, has lent
precedential support for this proposition where that process renders a statute constitutional. The learned Additional
Solicitor General has urged upon us that the Prisons Act (Sections 30 and 56) can be vehicle of enlightened values if
we pour into seemingly fossilized words a freshness of sense. "It is well settled that if certain provisions of law
construed in one way will be consistent with the Constitution, and if another interpretation would render them
unconstitutional, the Court would lean in favour of the former construction."
45. To put the rule beyond doubt, interstitial legislation through interpretation is a life-process of the law and judges
are party to it. In the present case we are persuaded to adopt this semantic readjustment so as to obviate a legicidal
sequel. A validation-oriented approach becomes the philosophy of statutory construction, as we will presently
explain by application.
The two problems and our basic approach
46. The specific questions before us are whether the quasi-solitudinous cellular custody of sorts imposed on Batra is
implicit in his death sentence and otherwise valid and the heavy irons forced on the person of Sobhraj still standing
his trial comport with our constitutional guarantees qualified and curtailed by the prison environs. Necessarily our
perspective has to be humanistic-juristic becoming the Karuna of our Constitution and the international
consciousness on human rights.
47. Three quotes set this tone sharply. In the words of Will Durant Will Durant's Article "What Life has taught Me",
published in Bhawan' Journal, Vol. XXIV, No. 18, April 9, 1978. p. 71 at p. 72 : 'It is time for all good man to come
to the aid of their party, whose name is civilization'. And, more particularised is the observation of Chief Justice
Warren E. Burger about what is to be done with an offender once he is convicted, that this is 'one of mankind's
unsolved and largely neglected problems'. And Winston Churchill's choice thought and chiselled diction bear
repetition :
The mood and temper of the public with regard to the treatment of crime and criminals is one of the most unfailing
tests of the civilization of any country.
And a clinching comment concludes this thought. The White Paper entitled "People in Prison" published by the
British Government in November, 1969, articulates a profound thought in its concluding paragraph, much less true
for India as for the United Kingdom :
A society that believes in the worth of individual beings can have the quality of its belief judged, at least in part, by
the quality of its prison and probate services and of the resources made available to them.
Batra facts
48. I begin with the critical facts in the first writ petition. Sunil Batra, sentenced to death but struggling survive,
supplicates pathetically that although his appeal against the death sentence still pends he is being subject to solitary
confinement which is contrary to the provision of the Penal Code, the Criminal Procedure Code, the Prison Act and
Articles 14, 19 and 21 of the Constitution. The Sessions Court of Delhi held him guilty of a gruesome murder
compounded with robbery and awarded the capital penalty, way back in January. 1977. Until then, Batra was B class
prisoner eligible for amenities which made his confinement bearable and companionable. But once the death penalty
was pronounced, the prison superintendent promptly tore him away from fellow human, stripped him of the B class
facilities and locked him up in a single cell with a small walled yard attached, beyond the view and voice of others
save the jail guards and formal visitors in discharge of their official chores and a few callers once in a blue moon.
The prisoner filed an appeal against his conviction and sentence to the High Court, which also heard the reference
for confirmation of the death sentence under Section 395 of the Criminal Procedure Code (for short, the Code). In
the meanwhile-and it proved a terribly long while-he was warehoused, as it were, in a solitary cell and kept
substantially incommunicado.
49. The quasi-solitary confinement was challenged in the High Court, perhaps vaguely (not particularising the
constitutional infirmities of Section 30 of the Prisons Act and the Punjab Jail Rules) but was given short shrift by the
High Court. The learned single Judge reasoned : "The only point for consideration is whether the petitioner can
13
have the facility as demanded by him till the sentence of death is confirmed. By going through all these rules I am of
the clear view that he cannot be given the facilities as it might lead to disastrous consequences. It also becomes the
function of the State to look to the personal safety of such a condemned prisoner. There is no force in the petition
which is hereby dismissed". The appeal to a division bench was withdrawn and the present writ petition under
Article 32 was filed, where the lay prisoner urged his litany of woes and some constitutional generalities, later
supplemented by Sri Y.S. Chitale as amicus curiae. His lurid lot was pathetically painted by counsel. Grim walls glare
at him from all sides night and day; his food is inserted into the room and his excretory needs must be fulfilled
within the same space. No pillow to rest his restless head, no light inside, save the bulb that burns blindly through
the night from outside. No human face or voice or view except the warder's constant compulsory intrusion into the
prisoner's privacy and the routine revolutions of officials' visitations, punctuated by a few regulated visits of
permitted relatives or friends, with iron bars and peering warder's presence in between. No exercise except a
generous half hour, morning and evening, in a small, walled enclosure from where he may do asanas were he yogi,
do meditation were he sanyasi and practise communion with Nature were he Wordsworth or Whiteman or break
down in speechless sorrow were he but common clay. A few books, yes; newspapers ? No. Talk to others ? No; save
echoes of one's own soliloquies; no sight of others except the stone mercy in pathetic fallacy. This segregation,
notwithstanding the prescribed category of visitors permitted and censored letters allowed, argues Sri Chitale, is
violation of the primordial gregariousness which, from the beginning of the species, has been man's social milieu
and so constitutes a psychic trauma, when prolonged beyond years, too torturesome for tears, even in our ancient
land of silent mystics and lonely cavemen. For the great few, solitude sometimes is best society but for the
commonality the wages of awesome seculsion, if spread over long spells, is insanity. For the fevered life of the
modern man, more so under the stress of sentence, solitude is terror and cellular vacuum horror. Just think not of
the contemplative saint but of the run of the mill mortal. Cage his lonely person and monitor his mind and mood
with a sensitive understanding. Then you know that moments bear slow malice; hours hang heavy with ennui; days
drop dead, and lonely weeks wear a vicious stillness; for sure, weary months or singleness, with monotonous nights,
made more hurtful by the swarms of mosquitoes singing and stinging, and in many cells, by the blood-thirsty armies
of bugs, invisibly emerging from noctural nowhere, to hide and bite, make for lunacy. Time cries halt and the victim
wonders, is death a better deal ? Such is the torture and tension of the solitary cell, picturised by counsel.
50. The Tihar Jail is the scene and a glimpse of it is good. Law is not a brooding omnipresence in the sky but a
behavioral omnipotence on the earth, a do-don't calculus of principled pragmatism. So, any discussion of prison law
problems must be preceded by a feel of the cell and surroundings. For this reason we now set out the inspection
notes left by Chief Justice Beg, who visited the 'condemned cell' along with his two brothers on the bench :
We inspected the cell in which the prisoner was confined. We were relieved to find that conditions there did not
correspond to the picture which eloquent arguments of his counsel before us conjured up in our minds. We had
been led to believe that the prisoner was kept in some kind of a dungeon with only a small hole through which light
could penetrate only when there was enough sunshine. It was true that the prisoner was living in a room with a cemented floor
and with no bed, furniture, or windows in it. The light came from a ventilator with iron bars on the wall at the back of the room and the
wide gate of iron bars in front. The light was, however, enough. It is also true that there was no separate room for the petitioner to take a
bath in or to answer calls of nature. But in this very room, the site of which given on a diagram furnished by the jail authorities, water
and sanitary fittings were installed in one corner of the room. In front of the room them was a small verandah with pakka walls and iron
gates separating each side of it from a similar verandah in front of an adjoining cell. The entrance into this verandah was also
through a similar iron gate. The inner room in which the prisoner was confined had also a gate of iron bars. All gates were with
iron bars on frames so that one could see across them through the spaces between the bars. All these gates were
locked. We learnt that the petitioner was able to come into the verandah at certain times of the day. At that time only he could
communicate with other similarly kept prisoners whom he could see and talk to through the iron bars. In other words, for all practical
purposes, it was a kind of solitary confinement.
We did not see a separate guard for each prisoner in the row of cells for prisoners sentenced to death. All these
prisoners were certainly segregated and kept apart. But it is difficult to determine, without going into the meaning of
'solitary confinement', as a term of law whether the conditions in which the petitioner was kept amounted to 'solitary
confinement'. Probably, if small windows with iron bars were provided between one cell and another, the prisoners could talk to each
other also so that the confinement would no longer be solitary despite the fact that they are kept in separate adjoining cells.
The petitioner did not complain of any discomfort other than being kept in 'solitary confinement' and being made to
sleep on the floor. He asked us to see another part of the prison where undertrials were kept. When we visited that
part, we found dormitories provided there for under-trial prisoners who had beds there and their own bedding and
clothing. They also had, in that part of the prison, radio sets, some of which belonged to the prisoners and others to
the jail. The under-trials were allowed to mix with each other, play games, or do what they wanted within a
compound.
14
(emphasis, ordered).
51. The basic facts bearing upon the condition of the prisoner in his cell are not denied although certain materials
have been averred in the counter affidavit to make out that the mental mayhem imputed to the system vis a vis the
petitioner is wild and invalid.
52. For updating the post-sentence saga of Batra it is necessary to state that the High Court has since upheld the
death penalty imposed on him; and open to him still is the opportunity to seek leave to appeal under Article 136
and, if finally frustrated in this forensic pursuit, to move for the ultimate alchemy of Presidential communication
under Article 72. The cumulative period from when the Sessions Court sentences to death to when the Supreme
Court and the President say 'nay' for his right to life may be considerable as in this very case. From them, if
discomfited at all stages and condemned to execution, to when he swings on the rope to reach 'the undiscovered
country from whose bourn no traveller returns' is a different, dismal chapter. Keeping these spells of suffering
separate, we may approach the poignant issues of quasi-solitary confinement and its legality.
53. Article 21 insists upon procedure established by law before any person can be denuded of his freedom of
locomotion. What then is the law relied upon by the State to cut down the liberty of the person to the bare bones of
utter isolation? Section 30 of the Prisons Act is pressed into service in answer. The respondent's counter-affidavit
alleges, in substantiation of cellular seclusion and deprivation of fellowship, the following facts :-
In fact, I submit that the provisions of Section 30 of the Prisons Act take in all necessary safeguard for the
protection of the prisoners sentenced to death which are absolutely necessary in view of the state of mind of such
prisoners as well as all the possible circumstances in which these prisoners may indulge in harming themselves or
any other criminal activity in their voluntary discretion and in the alternative the possibility of their being harmed by
any other prisoner. A prisoner under sentence of death can connive with such prisoners and may thereby succeed in
getting some instrument by which he may commit suicide or may be enabled to escape from the jail. Moreover a
prisoner under sentence of death has a very harmful influence on the other prisoners.
In the administration of prisoners in jail the maximum security measures have to be adopted in respect of the
prisoners under sentence of death. As they are highly frustrated lot, they will always be on the look out for an
opportunity to over-power the watch and ward guard, and make attempt to escape. It is quite relevant to add that
under the existing provisions of Jail Manual, Armed Guard cannot be posted to guard the prisoners. The Warder
guard has to guard them bare handed. In case the prisoners under sentence of death are allowed to remain outside
the cells, then it would be next to impossible for the guard to control them bare handed.
Under the provisions of the new Cr.P.C. the Capital Punishment is awarded only to the exceptionally few prisoners
because now it is the exception rather than rule, and the learned Courts have to record special reasons for awarding
the extreme punishment. This implies that the prisoners under sentences of death are exceptionally dangerous
prisoners, who do require maximum security measures while confined in Jail. Under the existing arrangements in the
Jail there can be no substitute to the confinement treatment of such prisoners otherwise than in the cells. After
having been awarded the capital punishment the prisoners sentenced to death harbour feelings of hatred against the
authorities. If such prisoners are allowed to remain outside the cells then there is every possibility of incidents of
assaults etc. on the fact (sic) of such prisoners.
...If the prisoners sentenced to death are mixed up with other categories of prisoners then the very basic structure of
superintendence and management of jails will be greatly jeopardised.
...I submit that the provisions of Section 30 of the Prisons Act are absolutely necessary looking to the state of mind
of prisoners under sentence of death, the possibility of such prisoners harming themselves or getting harmed by
others or escaping in view of the relevant sociological aspects of security relating to the Society in the modern
States.
54. These factual-legal submission deserve examination. When arguments spread out the learned Additional
Solicitors abandoned some of the extreme stances taken in the States affidavit and reduced the rigour of the
averments by gentler postures.
55. Essentiality, we have to decide whether, as a fact, Batra is being subjected to solitary confinement. We have
further to explore whether Section 30 of the Act contemplates some sort of solitary confinement for condemned
prisoners and, if it does, that legalizes current prison praxis. We have further to investigate whether such total
15
seclusion, even if covered by Section 30(2) is the correct construction, having regard to the conspectus of the
relevant provision of the Penal Code and Criminal Procedure Code. Finally, we have to pronounce upon the vires of
Section 30(2), if it does condemn the death sentencees to dismal solitude.
56. The learned Additional Solicitor General made a broad submission that solitary confinement was perfectly
constitutional and relied on citations from the American Courts at the lesser levels Its bearing on the structure of his
argument is that if even in a country like the United States where the VIIIth Amendment bans cruel and unusual
punishment, the 'solitary' has survived judicial scrutiny, it is a fortiori case in India, where there is no constitutional
prohibition against cruel and unusal punishment.
57. True our Constitution has no 'due process' clause or the VIII Amendment; but, in this branch of law, after
Cooper and Maneka Gandhi, the consequence is the same. For what is punitively outrageous, scandalizingly unusual
or cruel and rehabilitatively counterproductive, is unarguably unreasonable and arbitrary and is shot down by Article
14 and 19 and if inflicted with procedural unfairness, falls foul of Article 21. Part III of the Constitution does not
part company with the prisoner at the gates, and judicial oversight protects the prisoner's shrunken fundamental
rights, if flouted, frowned upon or frozen by the prison authority. Is a person under death sentence or undertrial
unilaterally dubbed dangerous liable to suffer extra torment too deep for tears ? Emphatically no, lest social justice,
dignity of the individual, equality before the law, procedure established by law and the seven lamps of freedom
(Article 19) become chimerical constitutional claptrap. Judges, even within a prison setting, are the real, though
restricted, ombudsmen empowered to prescribe and prescribe, humanize and civilize the life-style within the careers.
The operation of Articles 14, 19 and 21 may be pared down for a prisoner but not puffed out altogether. For
example, public addresses by prisoners may be put down but talking to fellow prisoners cannot. Vows of silence or
taboos on writing poetry or drawing cartoons are violative of Article 19. So also, locomotion may be limited by the
needs of imprisonment but binding hand and foot, with hoops of steel, every man or women sentenced for a term is
doing violence to Part III. So Batra pleads that until decapitation he is human and so should not be scotched in
mind by draconian cellular insulation nor stripped of the basic fellowship which keeps the spirit flickering before
being extinguished by the swinging rope.
58. Is it legal or legicidel to inflict awesome loneliness on a living human ? The lesser poser to the prison
administration is, what is its authority, beyond bare custody, to wound the condemned men by solitary confinement
? Indeed, the Additional Solicitor General, at the threshold, abandoned such an 'extinguishment' stance ambiguously
lingering in the State's counter affidavit and argued only for their realistic circumscription, since a prison context
affects the colour, content and contour of the freedoms of the legally unfresh. The necessary sequitur is that even a
person under death sentence has human rights which are non-negotiable and even a dangerous prisoner, standing
trial, has basic liberties which cannot be bartered away.
The Cooper effect and the Maneka armour vis-a-vis prisons.
59. The ratio in A.K. Gopalan's case where the Court, by a majority, adopted a restrictive construction and ruled out
the play of fundamental rights for anyone under valid detention, was upturned in R.C. Cooper's case
MANU/SC/0074/1970 : [1971]1SCR512 . In Maneka Gandhi, the Court has highlighted this principle in the
context of Article 21 itself.
60. And what is 'life' in Article 21? In Kharak Singh's case. Subba Rao, J. quoted Field, J. in Munn v. Illino's (1877)
94, U.S. 113, to emphasise the quality of life covered by Article 21 :
Something more than mere animal existence. The inhibition against its deprivation extends to all those limbs and
faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an
arm or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul
communicates with the outer world.
[1964 (1) SCR 232 at 357]., A dynamic meaning must attach to life and liberty.
61. this Court has upheld the right of a prisoner to have his work published if it does not violate prison discipline.
(State Pandurang) MANU/SC/0089/1965 : 1966CriLJ311 and see MANU/SC/0038/1974 : 1975CriLJ556
(Chandrachud, J.). The martydom of Gopalan and resurrection by Cooper paved the way for Maneka [1978] 1
S.C.R. 248 where the potent invocation of the rest of Part III, even after one of the rights was validity put out of
action, was affirmed in indubitable breadth. So the law is that for a prisoner all fundamental rights are an
enforceable reality, though restricted by the fact of imprisonment. The omens are hopeful for imprisoned humans
16
because they can enchantingly invoke Maneka and, in its wake Articles 14, 19 and even 21, to repel the deadening
impact of unconscionable incarceratory inflictions based on some lurid legislative text or untested tradition. As the
twin cases unfold the facts, we have to test the contentions of law on this broader basis.
62. 'Prisons are built with stones of Law' (sang William Blake) and so, when human rights are hashed behind bars,
constitutional justice impeaches such law. In this sense, courts which sign citizens into prisons have an onerous duly
to ensure that, during detention and subject to the Constitution, freedom from torture belongs to the detenu.
63. I may project, by way of recapitulation, issues in the two cases. Is Batra or any convict condemned to death-
liable to suffer, by implication, incarceratory sequestration, without specific punishment of solitary confinement,
from when the Sessions Judge has pronounced capital sentence until that inordinate yet dreadful interregnum ends
when the last court has finally set its seal on his liquidation and the highest executive has signed 'nay' on his plea for
clemency? Is prison law, which humiliates the human minima of jail justice, unlaw? Is Batra, strictly speaking, 'under
sentence of death' until its executability, and his terrestrial farewell have become irrevocable by the final refusal to
commute, by the last court and the highest Executive? Till then, is he entitled to integrity of personalities Viz.
freedom from crippling on body, mind and moral fibre, even while in custody, or is he deemed under Section 30 of
the Act to suffer lone imprisonment until cadaverisation?-a qualitative hiatus in approach and impact.
64. I have limned the key questions canvassed on behalf of Batra before us and, if I may forestall my eventual
response, Law India stands for Life, even the dying man's life and lancets its restorative way into that limbo where
languish lonely creatures whose personhood is excoriated even if their execution is unexecutable until further
affirmation.
65. In the next case we have Sobraj, an undertrial prisoner kept indefinitely under bar fetters, as a security risk,
arguing against the constitutionality of this obvious torture, sought to be justified by the State under the prison law
as a safety procedure. The two cases have a certain ideological kinship. The jurisprudential watershed between the
jail sub-culture under the Raj and criminological consciousness in Free India is marked by the National Charter of
January 26, 1950.
66. Bluntly put, are jailkeepers manegerie managers ? Are human beings, pulverized into living vegetables, truly
deprived of life, the quality of life, or at least of liberty, that limited loop of liberty, the fundamental Law, in its basic
mercy, offers to the prison community ? Are punitive techniques of physio-psychic torture practiced as jail drill, with
the trappings of prison rules, constitutional anethema when pressed beyond a point? Every Constitution projects a
cultural consciousness and courts must breathe this awareness.
67. A few more variants of these interrogatories may be spelt out. Is solitary confinement or similar stressful
alternative, putting the prisoner beyond the zone of sight and speech and society and wrecking his psyche without
decisive prophylactic or penological gains, too discriminatory to be valid under Article 14, too unreasonable to be
intra vires Article 19 and too terrible to qualify for being human law under Article 21? If the penal law merely
permits safe custody of a 'condemned' sentencees, so as to ensure his instant availability for execution with all the
legal rituals on the appointed day, is not the hurtful severity of hermetic insulation during that tragic gap between
the first judgment and the fall of the pall, under guise of a prison regulation, beyond prison power ?
68. This epitome, expressed tartly, lays bare the human heart of the problem debated with elaborate legal erudition
and compassion at the Bar.
69. These are critical problems which symbolize the appeal to higher values, and inspired by this lofty spirit, counsel
have argued. I must, right at the outset, render our need of appreciation for the industry and illumination brought in
by Shri Y.S. Chitale, amicus curiae, as he pressed these points of grave portent and legal moment. So am I beholden
to Shri Soli Sorabjee, the Additional Solicitor General, who has displayed commendable candour and benign
detachment from his brief and shown zealous concern to advance the rights of man, even 'condemned' man, against
the primitive drills behind the 'iron curttain' sanctified by literal legality. The Prison Manual is no Bible. This shared
radical humanism at the bar has narrowed the area of dispute and reduced the constitutional tension, and this has
made my task easy.
70. Right now we will examine some of the fallacies in the counter affidavit filed by the State. This will help us judge
the reasonableness or otherwise, the arbitrariness or otherwise, and the processual fairness or otherwise of the
prescription of the de facto solitary confinement, especially where the Court has not awarded such a sentence and
the Jail Superintendent has read it into Section 30(2).
17
71. A prefatory clarification will melt the mist of obscurity in the approach of the State. Many a murderer is a good
man before and after the crime and commits it for the first and last time under circumstantial crises which rarely
repeat. Some murderers are even noble souls, patriotic rebels, or self-less sacrificers for larger, sometimes misguided,
causes. Not an unusual phenomenon is the spectacle of persons in the death row being political or social dissenters,
sensitive revolutionaries, national heroes, coloured people socio-economic pariahs or victims of fabricated evidence.
Brutus and Bhagat Singh plus some proletarians, blockheads and blackguards! And this powerful realisation has
driven many countries to abolish death penalty and our own to narrow the area of this extreme infliction by judicial
compassion and executive clemency. Against this contemporary current of penological humanity, it is presumptuous
to impose upon this Court, without convincing back-up research, the preposterous proposition that death sentences,
often reflective in their terminal chapter and sick lied over by the pale cast of thought, are homicidal or suicidal
beasts and must therefore be kept in solitary confinement Royal Commission on Capital Punishment, 1949-1953
Report pp. 216-217.
"...the evidence given to us in the countries we visited and the information we received from others, were uniformly
to the effect that murderers are no more likely than any other prisoners to commit acts of violence against officers
or fellow prisoners or to attempt escape; on the contrary it would appear that in all countries murderers are, on the
whole better behaved than most prisoners....
Political coups, so frequent in our times, put 'murderers' in power who would otherwise have been executed. To
universalise is to be unveracious when validation is founded on habituated hunch, not authentic investigation.
72. Once we set our sights clear, we see a string of non-sequitur in the naked assertions of the State and an encore
of the folklore of 'dangerousness' surrounding human sentenced to death! The burden of the song, strangely
enough, is that solitary confinement is a compassionate measure to protect the prisoner lest he be killed or kill
himself or form a mutual aid society with other condemned prisoners for hera kiri! Community life for a death
sentence, the social psychology of the Jail Superintendent has convinced him to swear, is a grave risk to himself. So,
solitary segregation; The ingenious plea in the counter affidavit is like asserting not only that grapes are sour but that
sloss are sweet. Not only is group life bad for him because he may murder but 'solitary' is a blessing for him because
otherwise he may be murdered! To swear that a solitary cell is the only barricade against the condemned men being
killed or his killing others is straining credulity to snapping point. Why should he kill or be killed? Most murderers
are first offenders and often are like their fellowmen once the explosive stress and pressure of motivation are
released. Are there prison studies of psychic perversions or lethal precedents probabilising the homicidal or suicidal
proclivities of death sentencees, beyond the non-medical jail superintendent's ipse dixit ?
73. We are dealing with men under sentence of death whose cases pend in appeal or before the clemency
jurisdiction of Governor or President. Such men, unless mad, have no motive to commit suicide or further murder
within the jail. If they mean to take their life themselves why plead in appeal or for commutation? The very legal
struggle to escape death sentence strongly suggests they want to cling to dear life. Dostoevsky L.M. Hiranandani,
The Sentence of Death, The Illustrated Weekly of India, Aug. 29, Sept. 4, page 8 once said that if, in the last
moment before being executed, a man, however brave, were given the alternative of spending the rest of his
numbered days on the top of a bare rock, with only enough space to sit on it, he would choose it with relief.
74. The instinct of self preservation is so inalienable from biological beings that the easy oath of the Jail
Superintendent that condemned prisoners are prone to commit suicide if given the facility looks too recondite to
commend credibility.
75. Likewise, the facile statement that men in the death row are so desperate that they will commit more murders if
facility offers itself lacks rational appeal. It is a certainty that a man in the death row who has invited that fate by one
murder and is striving to save himself from the gallows by frantic forensic proceedings and mercy petitions is not
likely to make his hanging certain by committing any murder within the prison. A franker attitude might well have
been for the Superintendent to swear that prison praxis handed down from the British rule has been this and no
fresh orientation to the prison staff or re-writing of the jail manual having taken place, the Past has persisted into the
Present and he is an innocent agent of this inherited incarceration ethos.
76. Nothing is averred to validate the near-strangulation of the slender liberty of locomotion inside a prison, barring
vague generalities. The seat of crime is ordinarily explosive tension, as stressologists have substantiated and the
award of death sentence as against life sentence turns on a plurality of imponderables. Indeed, not infrequently on
the same or similar facts judges disagree on the award of death sentence. If the trial Court awards death sentence the
Jail Superintendent holds him dangerous enough to be cribbed day and night. If the High Court converts it to a life
term the convict, according to prison masters, must undergo a change of heart and become sociable, and if the
18
Supreme Court enhances the sentence he reverts to wild life! Too absurd to be good! To find a substantial
difference in prison treatment between the two-'lifers' and 'condemned' convicts-is to infer violent conduct or
suicidal tendency based on the fluctuating sentence alone, for which no expert testimony is forthcoming. On the
other hand, the 'solitary' hardens the criminal, makes him desperate and breaks his spirit or makes him break out of
there regardless of risk. In short, it is counter-productive.
77. A few quotes from a recent American study on prisons, hammer home the negativity of the "solitary". The
"hole", or solitaryconfinement, is often referred to as an "Adjustment Center" (AC). Here is one man's memory of it
from San Quentin prison in California.
When I first saw it, I just couldn't believe it. It was a dungeon. Nothing but cement and filth. I could not imagine
who have lived in there before me. All day I just sat there on my bunk, in a sort of daze, staring at my new abode....
.... Instead of bad spring there was a flat steel plate which is the same throughout the Hole; the window was
cemented up, except for the very top section, which was one quarter the standard size, and without any glass panes,
thus exposing the occupant to all kinds of weather (the rain would actually come through, into the cell); there was
no-shelving whatsoever-not so much as a hook to hand a towel or clothes on (and it was against the regulations to
fix up a clothes line; so anyone who did so, did it at the risk of being beefed). In short, there was nothing; just four
walls, and room enough to take five paces-not strides-from one end of the cell to the other. Nothing to break the
monotony of cement except the usual graffiti. The window was too high for a view of anything but the roof of the
wing next door. It was truly a dungeon; a bomb; a crypt. And it was "Home" for twenty four hours a day, every day
Ibid pp. 131-132.
One prisoner wrote :
I swear I want to cry sometimes, when I look at some of the older prisoner who have been in prison so long that
they hold conversations with people who aren't there and Wink their sad eyes once every four or five minutes.
...All I can do at this stage of the game is to look at my older brothers of oppression and wonder if this will be me
15 or 20 years from now. Can I hold on? Will I last? Will I some day hold conversations with ghosts?
...I have seen cats leave here twice as hostile, twice as confused, twice as anti-social than they were when they
entered. Depleted of nearly all of them mental justices, they are "thrown back" into society where they are expected
to function like normal human beings. And then society wonders why recidivism is so high in the country; why a
nun serves five or ten years in prison only to go out and commit the same act again.
They seem to fall apart emotionally and mentally;
To say that I became a nervous and paranoid wreck would be understatement. My mother would end up crying
every time she came to see me, because of my nervousness, which caused my hands to shake, and I had developed a
sty in my right eye."
78. When handling the inner dynamics of human action, we must be informed of the basic factor of human
psychology that "Nature abhors a vacuum; and man is a social animal". (Spinoza). In such an area we must expect
Brandies briefs backed by opinions of specialists on prison tensions, of stressologists on the etiology of crime and of
psychiatrists who have focussed attention on behavior when fear of death oppresses their patients. A mere
administrative officer's deposition about the behaviorial may be of men under contingent sentence of death cannot
weigh with us when the limited liberties of expression and locomotion of prisoners are sought to be unreasonably
pared down or virtually wiped out by oppressive cell insulation. No medical or psychiatric opinion or record of jail
events as a pointer, is produced to prove, even prima facie, that this substantial negation of gregarious jail life is
reasonable. Where total deprivation of the truncated liberty of prisoner's locomotion is challenged the validatory
burden is on the State.
79. The next fallacy in the counter-affidavit is that if the murder is monstrous deserving death sentence the murderer
is a constant monster manifesting continued dangerousness. Does this stand to reason? A woman who coldly
poisons all her crying children to death to elope with a paramour may be guilty of maniacal murder and, perhaps,
may be awarded death sentence. But is she, for that reason, a dangerously violent animal? Other diabolical killings
deserving death penalty but involving no violence, in special social settings, may be visited with life term, though the
offender is a ghastly murderer. Imagine how the respondent's test of behaviorial violence breaks down where death
19
sentence is demolished by a higher court for the reason it has been on his head for years or he is too young or too
old, or commuted by the President for non-legal yet relevant considerations as in the case of patriotic terrorists. The
confusion between sentencing criteria and blood-thirsty prison behavior is possible to understand but not to accept.
80. Having dealt with some of the untenable positions taken by the affient, I move on to a consideration of the
torture content of solitary confinement. The Batra treatment is little short of solitary confinement. This inclination
persuaded the court to make the interim direction on 5th May, 1978 :
We direct that until further orders of this Court the petitioner Sunil Batra will not be kept in 'confinement' as
contemplated by Section 30(2) of the Prisons Act, 1894. Reasons to follow.
81. Even so, from a larger angle, it becomes necessary to explain why a sensitized perspective repels judicial
condonation of solitary confinement of sorts. What is solitary confinement, experiencially, juristically, and
humanistically understood ? At the close of this consideration, a legal definition of solitary confinement may be
given to the extent necessary in this case.
82. American high-security prisons, reportedly with their toughs, tantrums and tensions, may not help comparison
except minimally. Even so, the Additional Solicitor General drew our attention to observations of the U.S. Court of
Appeals decisions affirming segregated confinement in maximum security prisons. His point was autonomy for the
jail administration in matters of internal discipline, especially where inmates were apt to be :
Kenneth Grahm v. J.T. Willingham, Federal Reporter, 2d Series Vol. 384 F. 2d. p. 367 threat to themselves, to
others, or to the safety and security of the institution. Such a policy is perfectly proper and lawful and its
administration requires the highest degree of expertise in the discretionary function of balancing the security of the
prison with fairness to the individual confined. In the case at bar the record reveals that appellant's confinement in
segregation is the result of the considered judgment of the prison authorities and is not arbitrary.
In the specific cases cited the facts disclose some justification for insulation.
Appellant has indeed, been in segregation for a protracted period, continuously for more than two years prior to the
present hearing. However, his record during these separate periods when he was allowed confinement "within the
population" of a prison reflects a history of participation, directly or indirectly, in conduct of extreme violence.
Although his conduct in segregation has since been entirely satisfactory the trial court was manifestly correct in
determining that appellant has been denied no constitutional right and that the determination of whether appellant
presently should be considered a threat to others or the safety or security of the penitentiary is a matter for
administrative decision and not the courts.
83. But, in our cases, no record revealing balancing of considerations or compelling segregation or murderous in-
prison violence save that he is potentially 'under death sentence', is shown. To be mindless is to be cruel and that is
reflex action of the jail bosses when prisoners are routinely sent to the solitary cell on hunch or less. Alleging
chances of killing or being killed as the alibi for awarding 'solitary' is an easy 'security' phobia which shows little
appreciation of the suffering so heaped. And abuse is undetected and indiscriminate in that walled world within the
world.
Commenting on solitary cellular confinement, Pandit Nehru observes that the gaol department adds to the sentence
of the court an additional and very terrible punishment, so far as adults and even boys accused of revolutionary
activities are concerned. Over-zealous prison administrators in the past have contributed not a little to the disrepute
and unpopularity of the Government by making reckless use of this on political offenders or detenus.
The great Judge Warren, CJ in Trop. v. Dulles refers to the condemnation of segregation and observes :
This condemnation of segregation is the experience years ago of people going stir crazy, especially in segregation.
84. That compassionate novelist, Charles Dickens, in his 'American Notes and Pictures from Italy' describes the
congealing cruelty of 'solitary confinement' in a Pennsylvania Penitentiary (p. 99) :
I am persuaded that those who devised this system of prison discipline, and those benevolent gentlemen who carry
it into execution, do not know what it is that they are doing. I believe that very few men are capable of estimating
20
the immense amount of torture and agony which this dreadful punishment prolonged for years, inflicts upon the
sufferers; and in guessing at it myself, and in reasoning from what I have seen written upon their faces, and what to
my certain knowledge they feel within, I am only the more convinced that there is a depth of terrible endurance in it
which none but the sufferers themselves can fathom, and which no man has a right to inflict upon his fellow-
creatures. I hold this slow and daily tempering with the mysteries of the brain, to be immeasurably worse than any
torture of the body; and because its ghastly signs and tokens are not so palpable to the eye and sense of touch as
scars upon the flesh; because its wounds are not upon the surface and it extorts few cries that human ears can hear;
thereore, I the more denounce it, as a secret punishment which slumbering humanity is not roused up to stay. I
hesitated once, debating with myself whether, if I had the power of saying "Yes" or "No", I would allow it to be
tried in certain cases, where the terms of imprisonment were short; but now, I solemnly declare, that with no
rewards or Honours could I walk a happy man beneath the open sky by day, or lie down upon bed at night, with the
consciousness that one human creature, for any length of time, no matter what lay suffering this unknown
punishment in his silent cell, and I the cause or I consenting to it in the least degree.
85. Viewing cellular isolation from a human angle, that literary genius, Oscar Wilds, who crossed the path of the
criminal law, was thrown into prison and wrote De Profundis, has poetized in prose, with pessimism and realism,
the lonely poignancy of the iron infirmary. I quote :
A great river of life flows between me and a date so distant. Hardly, if at all, can you see across so wide a waste...
suffering is one very long moment. We cannot divide it by seasons. We can only record its moods, and chronicle
their return. With us time itself does not progress. It revolves. It seems to circle round one center of pain. The
paralysing immobility of a life every circumstance of which is regulated...according to the inflexible laws of an iron
formula : this immobile quality, that makes each dreadful day in the very minutest detail like its brother, seems to
communicate itself to those external forces the very essence of whose existence is ceaseless change.
... For us there is only one season, the season of sorrow. The very sun and moon seem taken from us. Outside, the
day may be blue and gold, but the light that creeps down through the thickly-muffled glass of the small iron-barred
window beneath which one sits is grey and niggard. It is always twilight in one's cell, as it is always twilight in one's
heart. And in the sphere of thought, no less than in the sphere of time, motion is no more.
And Shri Jawaharlal Nehru has recorded in his Autobiography in the Thirties :
Some individuals, sentenced for revolutionary activities for life or long term of imprisonment, are often kept in
solitary confinement for long period.... But in the case of these persons-usually young boys-they are kept along
although their behavior in gaol might be exemplary. Thus an additional and very terrible punishment is added by the
Gaol Department to the sentence of the Court, without any reason therefore. This seems very extraordinary and
hardly in confirmity with any rule of law. Solitary confinement, even for a short period, is a most painful affair, for it
to be prolonged for years is a terrible thing. It means the slow and continuous deterioration of the mind, till it begins
to border on insanity; and the appearance of a look of vacancy, or a frightened animal type of expression. It is killing
of the spirit by degrees, the slow vivisection of the soul. Even if a man survives it he becomes abnormal and an
absolute misfit in the world.
86. Much has been said in the course of the argument about the humanism imparted by interviews and letters.
Nehru wrote about the Naini Prison, which retains its relevance for many prisons even today, speaking generally :-
Interviews are only permitted once in three months, and so are letters-a monstrously long period. Even so, many
prisoners cannot take advantage of them. If they are illiterate, as most are, they have to rely on some gaol official to
write on their behalf : and the latter, not being keen on adding to his other work, usually avoids it. Or, if a letter is
written, the address is not properly given and the letter does not reach. Interviews are still more difficult. Almost
invariably they depend on a gratification for some good official. Often prisoners are transferred to different gaols,
and their people cannot trace them. I have met many prisoners who had lost complete touch with their families for
years, and did not know what had happened. Interviews, when they do take place after three months or more are
most extraordinary. A number of prisoners and their interviewers are placed together on either side of a barrier, and
they all try to talk simultaneously. There is a great deal of shouting at each other, and the slight human touch that
might have come from the interview is entirely absent.
The curse of the system is, in Nehru's words :
21
Not the least effort is made to consider the prisoner as an individual, a human being, and to improve or look after
his mind. The one thing the UP administration excels is in keeping its prisoners. There are remarkably few attempts
to escape, and I doubt if one in ten thousand succeeds in escaping.
87. A sad commentary on the die-hard 'solitary' in some Indian Jails is gleaned from a recent book, "My Years in an
Indian Prison-Mary Tyler" (Victor Gallantz Ltd., London 1977). The author, a young British, Mary Tyler, was in a
female ward, kept solitary as a naxalite, and deported eventually. She writes :
By ten o'clock that morning I found myself locked in a room fifteen feet square and completely bare except for a
small earthen pitcher and three tattered, coarse, dark grey blankets stiff with the grease and sweat of several
generations of prisoners, which I folded to make a pallat on the stone floor. My cell formed one corner of the
dormitory building and looked out on to a yard at the end of the compound farthest from the gate. The two outer
walls were open to the elements; instead of windows, there were three four-foot wide openings barred from the
floor to a height of eight feet. The door was fastened with a long iron bolt and heavy padlock; the walls, covered in
patchy whitewash, were pock-marked high and low with holes of long-removed nails. In one corner a rickety waist-
high wooden gate concealed a latrine, a niche with raised floor, in the center of which was an oblong slit directly
over a cracked earthen tub. My latrine jutted out adjacent to the one serving the dormitory where the rest of the
women prisoners slept. The open drains from both these latrines and Kalpana's ran past the two outer walls of my
cell, filling the hot nights with a stench that made me wretch. The crevices between the broken concrete and
crumbling brickwork of the drains were the breeding grounds of countless flies and giant mosquitoes that, as if by
mutual prearrangements, performed alternate day and night shifts in my cell to disturb my sleep and rest.
My first few days in 'solitary' were spent as in a dream, punctuated only by the Chief Head Warder's morning and
evening rounds to check the lock, the bustling appearance of the matine bringing food and water, or the wardress
fumbling with her keys to unlock me to clean my teeth and baths.
During the daytime, the key to the gate of the female ward was in the custody of a 'duty-warder', one of the hundred
and fifty warders in the jail. He was responsible for opening the gate to admit convicts bringing food, the doctor or
other persons on essential business. Administration of the jail was in the hands of a staff of Assistant Jailors and
clerks, subordinate to the Jailor who had overall responsibility for the day to day running of the prison. He was
answerable to the most exalted personage in the jail hierarchy, the Superintendent.
His unpredictable temper and behavior were a source of as much exasperation to his subordinates as to ourselves
He demonstrated his authority by reversing his previous instructions so many times that in the end nobody was
really sure what he wanted. The jail staff operated by by-passing him as much as possible so as not to get caught out
if he happened to change his mind.
88. Judicial opinion across the Atlantic, has veered to the view that it is near-insanity to inflict prolonged solitary
segregation upon prisoners. And the British System has bid farewell to solitary confinement as a punishment. I refer
to these contemporary developments not to hold on their basis but to get a feel of this jail within a jail. Without
empathy, decision-making may be futility.
89. It is fair to state that Shri Soli Sorabjee, expressed himself for jail reform and his heart was with those whose
limited liberty was hamstrung, although he pleaded strenuously that the reformist goal could be reached by reading
new meaning without voiding the provision. So he tried to tone down the acerbity of the isolation imposed on Batra
by calling it statutory segregation, not solitary confinement. But as will be later revealed, the former hides the
harshness verbally bat retains the sting virtually. Presbyter is priest writ large.
90. A host of criminological specialists has consistently viewed with consternation the imposition of solitary
confinement punitively-and, obviously, preventive segregation stands on a worse footing since it does not have even
a disciplinary veneer. I may, with eclectic brevity, quote from the wealth of juristic erudition presented to us by Shri
Chitale in support of his thesis that forced human segregation, whatever its label, is a barbaric cruelty which has
outlived its utility and the assumption that condemned prisoners or lifers are dangerously violent is a facile fiction.
One main thrust, however, of the congregate school came on the issue of the effects of constant and unrelieved
isolation of prisoners. It was unnatural, the New York camp insisted, to leave man in solitary, day after day, year
after year; indeed, it was not unnatural that it bred insanity David J. Rotman. Historical perspectives-Justice,
Punishment, Treatment by Leonard Oreland, 1973, p. 144.
22
Harlow and Harlow (1962) have conducted experiments with species closely related to human beings. Of special
interest are the variables involved in the causation of psychopathological syndromes in man. In measuring the
relation between social environment and social development, Harlow reports that the most constant and dramatic
finding is that social isolation represents the most destructive abnormal environment. As this isolation progresses
from partial to total, the severity of impairment increases, ranging from schizord-like postures to depressive-type
postures Psychiatrist and the Urban-setting-Comprehensive Text Book of Psychiatrist-II, 2nd Ed. Vol. II (1976) by
A.M. Freeman, Harlod I. Kaplan, Benjamin J. Sedock, p. 2503.
Eloquent testimony to man's need for belonging, acceptance, and approval is provided by the experience of small
groups of scientists, officers, and enlisted personnel who voluntarily subjected themselves to isolated antartic living
for the better part of a year (Robrer, 1961). During this period troublesome individuals were occasionally given the
"silent treatment" in which a man would be ignored by the group as if he did not exist. This 'isolation' procedure
resulted in a syndrome called the 'long eye', characterized by varying combinations of sleeplessness, outbursts of
crying, hallucinations, a deterioration in habits of personal hygiene, and tendency for the man to move aimlessly
about or to lie in his bunk staring into space. These symptoms cleared up when he was again accepted by and
permitted to interact with others in the group James C. Coleman-Abnormal Psychology and Modern Life p. 105.
The use of the dark or isolation cell-the hangover of the medieval dungeon-known in prison parlance as 'Klondika',
is probably the most universally used prison punishment in the history of American penology Harry Elmer Barnes
and Negley K. Testers-New Horzons in Criminology, 3rd Ed. 2 p. 351-352.
Some prisoners are kept in these gloomy places for months. What to do with a rebellious prisoner bedevils all
wardens, but a sustained sojourn in a punishment cell is not the answer. The excessive use of Klondike is a grim
example of what is known to students of corrections as 'deed end' penology. Resorting to it for long periods of time
is an illustration of total lack of imagination and outmoded prison administration, all too current in most of our
prisons even today. Not much different from the dark or isolation cell is the 'segregation' block or ward. In this
isolated part of the prison an inmate may be placed because he is 'uncooperative', is considered dangerous or a bad
influence, or for some other reason arrived at by the warden or his deputy in charge of custody.
A much more recent case which bids well to become a cause clebre is that of Robert Stroud who has spent
approximately the same period of time in 'segregation' in the federal prisons of Leavenworth and Alcatraz. Stroud
was first sent to prison when he was nineteen for killing a man in Alaska in 1909. While in the Leavenworth prison
he killed a guard in the dining room for which he was sentenced to be hanged. This sentence was commuted to life
by President Woodrow Wilson. While in prison in 'segregated cell'. Stroud became an expert in disease of birds and
is alleged to have become a world-wide authority in his field Royal Commission on Capital Punishment 1949-1953
Report pp. 216-217.
Regarded as a rational method of treatment, cellular confinement is a curious monument of human perversity. That
it should have been established shows the absolute ignorance of criminal nature which existed at the time; that it
should still persist shows the present necessity for a widespread popular knowledge of these matters. It may be
possible to learn to ride on a wooden horse, or to swim on a table, but the solitary cell does not provide even
wooden substitute for the harmonising influence of honest society Havelock Ellis, The Criminal, 5th Edn. 1914, p.
327.
Criminological jurists like Dr. Bhattacharya, who was also judge of the Calcutta High Court, take the view that
cellular or separate confinement deserves to be condemned :
Many penologists in India take exception to the solitary confinement rule. It is hard to differentiate between this as a
mode of judicial punishment and by way of a jail punishment for the results are equally disastrous to the physical
and mental health of those subjected to them.
91. Yahya Ali, J., in 1947, long before our constitutional charter came into being, had expressed himself strongly
against 'solitary confinement' and we feel more strongly about it and against it. Our humane order must reject
'solitary confinement' as horrendous. The learned Judge observed AIR 1947 Mad381. :
Solitary confinement should not be ordered unless there are special features appearing in the evidence such as
extreme violence or brutality in the commission of the offence. The only reason given by the Magistrate is that the
'sanctity of home life has become to him (the appellant) a mere mockery and the desire to take what he wants
regardless of ownership is not in him'. This can be said of every person convicted under Section 379, Penal Code
23
and I do not consider that to be a circumstance justifying the passing of an order of solitary confinement. The
direction regarding solitary confinement will be deleted.
As regards the sentence relating to solitary confinement the attention of the Magistrate is invited to my judgment in
Criminal Appeal No. 114 of 1947. As pointed out in that judgment although the imposition of the sentence of
solitary confinement was legal, under the Larceny Act of 1861 (24 and 25 Vict. Ch. 96) the power was very rarely
exercised by a criminal Court. By enacting 56 and 57 Vict. Ch. 54 on 22-9-1893 the provisions in Larceny Act
relating to solitary confinement which had become obsolete for several decades by that date were formally repealed.
A century of experience has thus led to its abandonment in the United Kingdom and at the present day it stands
condemned and has generally given place to work in association during the day and confinement in cell for the
night, in cases where isolation at night is considered necessary for a brief time for particular prisoners and
exclusively for the maintenance of prison discipline. Although in the medieval times under the influence of the
ecclesiastics it was considered that cellular confinement was a means of promoting reflection and penitence, it came
since to be realised that this kind of treatment leads to a morbid state of mind and not infrequently to mental
derangement and as a form of torture it fails in its effect on the public. It must, therefore, so long as is part of the
Indian Penal Code, be administered, if ever in the most exceptional cases of unparallelled atrocity or brutality.
92. The Law Commission of India in its 42nd Report took the view that solitary confinement was "out of tune with
modern thinking and should not find a place in the Penal Code as a punishment to be ordered by any criminal
court". Some ambivalent observation that such treatment may perhaps be necessary as a measure of jail discipline
has been made without any special supportive reasons as to why such a penelogical horror as long solitary
confinement should be allowed to survive after death within the prison. Probably, all that was meant by the
Commission was that, for very short spells and under ameliorative conditions, the 'solitary' may be kept alive as a
disciplinary step.
93. The propositions of law canvassed in Batra's case turn on what is solitary confinement as a punishment and what
is non-punitive custodial isolation of a prisoner awaiting execution. And secondly, if what is inflicted is, in effect,
'solitary', does Section 30(2) of the Act authorise it, and, if it does, is such a rigorous regimen constitutional. In one
sense, these questions are pushed to the background, because Batra's submission is that he is not 'under sentence of
death' within the scope of Section 30 until the Supreme Court has affirmed and Presidential mercy has dried up by a
final 'nay'. Batra has been sentenced to death by the Sessions Court. The sentence has since been confirmed, but the
appeal for Presidential commutation are ordinarily precedent to the hangmen's lethal move, and remain to be gone
through. His contention is that solitary confinement is a separate substantive punishment of maddening severity
prescribed by Section 73 of the Indian Penal Code which can be imposed only by the Court; and so tormenting is
this sentence that even the socially less sensitive Penal Code of 1860 has interposed, in its cruel tenderness, intervals,
maxima and like softening features in both Sections 73 and 74. Such being the penal situation, it is argued that the
incarceratory insulation inflicted by the Prison Superintendent on the petitioner is virtual solitary confinement
unauthorised by the Penal Code and, therefore, illegal. Admittedly, no solitary confinement has been awarded to
Batra. So, if he is de facto so confined it is illegal. Nor does a sentence of death under Section 53, I.P.C. carry with it
a supplementary secret clause of solitary confinement. What warrant then exists for solitary confinement on Batra ?
None. The answer offered is that he is not under solitary confinement. He is under 'statutory confinement' under
the authority of Section 30(2) of the Prisons Act read with Section 366(2) Cr.P.C. It will be a stultification of judicial
power if under guise of using Section 30(2) of the Prisons Act, the Superintendent inflicts what is substantially
solitary confinement which is a species of punishment exclusively within the jurisdiction of the criminal court. We
hold, without hesitation, that Sunil Batra shall not be solitarily confined. Can he be segregated from view and voice
and visits and comingling, by resort to Section 30(2) of the Prisons Act and reach the same result ? To give the
answer we must examine the essentials of solitary confinement to distinguish it from being 'confined in a cell apart
from all other prisoners'.
94. If solitary confinement is a revolt against society's humane essence, there is no reason to permit the same
punishment to be smuggled into the prison system by naming it differently. Law is not a formal label, nor
logomachy but a working technique of justice. The Penal Code and the Criminal Procedure Code regard punitive
solitude too harsh and the Legislature cannot be intended to permit preventive solitary confinement, released even
from the restrictions of Section 73 and 74 I.P.C., Section 29 of the Prisons Act and the restrictive Prison Rules. It
would be extraordinary that a far worse solitary confinement, masked as safe custody, sans maximum, sans
intermission, sans judicial oversight or natural justice, would be sanctioned. Commonsense quarrels with such
nonsense.
24
95. For a fuller comprehension of the legal provisions and their construction we may have to quote the relevant
sections and thereafter make a laboratory dissection thereof to get an understanding of the components which make
up the legislative sanction for semi-solitary detention of Shri Batra. Section 30 of the Prisons Act rules :
30. (1) Every prisoner under sentence of death shall, immediately on his arrival in the prison after sentence, be
searched by, or by order of, the Deputy Superintendent, and all articles shall be taken from him which the Deputy
Superintendent deems it dangerous or inexpedient to leave in his possession.
(2) Every such prisoner, shall be confined in a cell apart from all other prisoners, and shall be placed by day and by
night under charge of a guard.
This falls in Chapter V relating to discipline of prisoners and has to be read in that context. Any separate
confinement contemplated in Section 30(2) has this disciplinary limitation as we will presently see. If we pull to
pieces the whole provision it becomes clear that Section 30 can be applied only to a prisoner "under sentence of
death". Section 30(2) which speaks of "such" prisoners necessarily relates to prisoners under sentence of death. We
have to discover when we can designate a prisoner as one under sentence of death.
96. The next attempt is to discern the meaning of confinement "in a cell apart from all other prisoners". The
purpose is to maintain discipline and discipline is to avoid disorder, fight and other untoward incidents, if
apprehended.
97. Confinement inside a prison does not necessarily import cellular isolation. Segregation of one person all alone in
a single cell is solitary confinement. That is a separate punishment which the Court alone can impose. It would be a
subversion of this statutory provision (Section 73 and 74 I.P.C.) to impart a meaning to Section 30(2) of the Prisons
Act whereby a disciplinary variant of solitary confinement can be clamped down on a prisoner, although no court
has awarded such a punishment, by a mere construction, which clothes an executive officer, who happens to be the
governor of the jail, with harsh judicial powers to be exercised by punitive restrictions and unaccountable to anyone,
the power being discretionary and disciplinary.
98. Indeed, in a jail, cells are ordinarily occupied by more than one inmate and community life inside dormitories
and cells is common. Therefore, "to be confined in a cell" does not compel us to the conclusion that the
confinement should be in a solitary cell.
99. "Apart from all other prisoners" used in Section 30(2) is also a phrase of flexible import. 'Apart' has the sense of
'To one side, aside,... apart from each other, separately in action or function' (Shorter Oxford English Dictionary).
Segregation into an isolated cell is not warranted by the word. All that it connotes is that in a cell where there are a
plurality of inmates the death sentencees will have to be kept separated from the rest in the same cell but not too
close to the others. And this separation can be effectively achieved because the condemned prisoner will be placed
under the charge of a guard by day and by night. The guard will thus stand in between the several inmates and the
condemned prisoner. Such a meaning preserves the disciplinary purpose and avoids punitive harshness. Viewed
functionally, the separation is authorised, not obligated. That is to say, if discipline needs it the authority shall be
entitled to and the prisoner shall be liable to separate keeping within the same cell as explained above. "Shall"
means, in this disciplinary context, "shall be liable to". If the condemned prisoner is docile and needs the attention
of fellow prisoners nothing forbids the jailor from giving him that facility.
100. When we move on to Chapter XI we come across Prison Offences which are listed in Section 45. Section 46
deals with punishment for such offences. We reproduce the relevant portion :
46. The Superintendent may examine any person touching any such offence, and determine thereupon and punish
such offence by-
...
(6) imposition of handcuffs of such pattern and weight, in such manner and for such period, as may be prescribed
by rules made by the Governor General in Council;
(7) imposition of fetters of such pattern and weight, in such manner and for such period, as may be prescribed by
the rules made by Governor General in Council;
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(8) separate confinement for any period not exceeding three months;
Explanation :-Separate confinement means such confinement with or without labour as secludes a prisoner from
communication with, but not from sight of other prisoners, and allows him not less than one hour's exercise per
diem and to have his meals in association with one or more other prisoners;
...
(10) cellular confinement for any period not exceeding fourteen days;
Provided that, after such period of cellular confinement an interval of not less duration than such period must elapse
before the prisoner is again sentenced to cellular or solitary confinement :
Explanation :-Cellular confinement means such confinement with or without labour as entirely secludes a prisoner
from communication with, but not from sight of other prisoners.
101. Sub-section (6) and (7) relate to "irons" and have relevance to the Sobraj case which we will presently deal with.
Sub-section (8) speaks of "separate confinement" for any period not exceeding three months. There is a further
explanation which to some extent softens the seclusion. It obligates the authority not to keep the prisoner "from
sight of other prisoners" and allows him not less than one hour's exercise per diem and to have his meals in
association with other prisoners. Thus it is clear that even if a grave prison offence has been committed, the
punishment does not carry segregated cellular existence and permits life in association in mess and exercise, in view
and voice but not in communication with other prisoners. Moreover, punitive separate confinement shall not exceed
three months and Section 47 interdicts the combination of cellular confinement and "separate confinement" so as
not to exceed together the periods specified there. It is useful to mention that "cellular confinement" is a stricter
punishment than separate confinement and it cannot exceed 14 days because of its rigour. It entirely excludes a
prisoner from communication with other prisoners but it shall not exclude a prisoner from sight of other prisoners.
102. Solitary confinement has the severest sting and is awardable only by Court. To island a human being, to keep
him incommunicado from his fellows is the story of the Andamans under the British, of Napoleon in St. Helena !
The anguish of aloneness has already been dealt with by me and I hold that Section 30(2) provides no alibi for any
form of solitary or separated cellular tenancy for the death sentence, save to the extent indicated.
103. This study clearly reveals that solitary confinement as a, sentence under the Penal Code is the severest. Less
severe is cellular confinement under Section 46(10) of the Prisons Act and under Section 46(8). Obviously,
disciplinary needs of keeping apart a prisoner do not involve any harsh element of punishment at all. We cannot,
therefore, accede to any argument which will upset the scheme or subvert the scale of severity. Section 30(2),
understood in the correct setting, plainly excludes any trace of severity and merely provides for a protective distance
being maintained between the prisoner under death sentence and the other prisoners, although they are
accommodated in the same cell and are allowed to communicate with each other, eat together, see each other and
for all other practical purposes continue community life.
104. An analysis of the provisions of the Penal Code and of the Prisons Act yields the clear inference that Section
30(2) relates to separation without isolation, keeping apart without close confinement. Whatever the name, the
consequence of the 'solitary' regime has been maddening :
So many convicts went mad or died as a consequence of the solitary regime that by the mid-19th century it was
generally abandoned...
The 'separate system', the "silent system", the "hole" and other variants possess the same vice. In the present case
we are satisfied that what reigns in Tihar for 'condemned' prisoners is sound-proof, sight-proof, society-proof
cellular insulation which is a first cousin to solitary confinement.
105. Section 366(2), Cr.P.Code has bearing on this discussion, for it states :
The Court passing the sentence shall commit the convicted person to jail custody under a warrant.
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106. So, the Court awards only a single sentence viz., death. But it cannot be instantly executed because its
executability is possible only on confirmation by the High Court. In the meanwhile, he cannot be let loose for he
must be available for decapitation when the judicial processes are exhausted. So it is that Section 365(2) takes care of
this awesome interregnum by committing the convict to jail custody. Form 40 authorises safe keeping. We may
extract the relevant part of the Form :
This is to authorise and require you to receive the said (prisoner's name) into your custody in the said jail, together
with this warrant, and him there safely to keep until you shall receive the further warrant or order of this Court,
carrying into effect the order of the said Court.
107. This 'safe keeping' in jail custody is the limited jurisdiction of the jailor. The convict is not sentenced to
imprisonment. He is not sentenced to solitary confinement. He is a guest in custody, in the safe keeping of the host-
jailor until the terminal hour of terrestrial farewell whisks him away to the halter. This is trusteeship in the hands of
the Superintendent, not imprisonment in the true sense. Section 366(2) Criminal Procedure Code (Jail Custody) and
Form 40 (safely to keep) underscore this concept, reinforced by the absence of a sentence of imprisonment under
Section 53, read with Section 73, Indian Penal Code. The inference is inevitable that if the 'condemned' men were
harmed by physical or mental torture the law would not tolerate the doing since injury and safety are obvious
enemies. And once this qualitative distinction between imprisonment and safe keeping within the prison is grasped,
the power of the jailor becomes benign. Batra, and others of his ilk, are entitled to every creature comfort and
cultural facility that compassionate safe-keeping implies. Bed and pillow, opportunity to commerce with human
kind, worship in shrines, if any, games, books, newspapers, writing material, meeting family members, and all the
good things of life, so long as life lasts and prison facilities exist. To distort safe-keeping into a hidden opportunity
to cage the ward and to traumatize him is to betray the custody of the law. Safe custody does not mean deprivation,
isolation, banishment from the lenten banquet of prison life and infliction of travails as if guardianship were best
fulfilled by making the ward suffer near-insanity. May be, the Prison Superintendent has the alibi of prison usage,
and may be, he is innocent of the inviolable values of our Constitution. May be, there is something wrong in the
professional training and the prison culture. May be, he misconceives his mission unwittingly to help God ! 'Whom
God wishes to destroy, He first makes mad'. For, long segregation lashes the senses until the spirit lapses into the
neighbourhood of lunacy. Safe-keeping means keeping his body and mind in fair condition. To torture his mind is
unsafe keeping. Injury to his personality is not safe keeping. So, Section 366, Cr.P.C. forbids any act which disrupts
the man in his body and mind. To preserve his flesh and crush his spirit is not safe keeping, whatever else it be.
108. Neither the Penal Code nor the Criminal Procedure Code lends validity to any action beyond the needs of
safety and any other deprivation, whatever the reason, has not the authority of law. Any executive action which
spells infraction of the life and liberty of a human being kept in prison precincts, purely for safe custody, is a
challenge to the basic notion of the rule of law-unreasonable, unequal, arbitrary and unjust. A death sentence can no
more be denuded of life's amenities than a civil debtor, fine defaulter, maintenance defaulter or contemner-indeed, a
gross confusion accounts for this terrible maltreatment.
109. The Prisons Act (Section 30(2)) spells out with specificity the point of departure from ordinary jail custody
needed in the case of those 'under sentence of death'. That is to say, they get the same conditions of prison life as
other general prisoners, except in two particulars'. During hours of cellular confinement, condemned prisoners shall
be secluded from others. Dusk to dawn keeping aside is one restriction. Such sentences shall also be subject to
twenty-four hour watch by guards. Both these are understandable restraints in the setting of death sentence as
reasonable concomitants of safe custody without inflicting cruelty.
110. To exaggerate security unrealistically is morbidity and, if it is a pervasive malady, deserves psychiatry for the
prison administration. In every country, this transformation from cruelty to compassion within jails has found
resistance from the echelons and the Great Divide between pre-and-post Constitution penology has yet to get into
the metabolism of the Prison Services. And so, on the national agenda of prison reform is on-going education for
prison staff, humanisation of the profession and recognition of the human rights of the human beings in their keep.
111. In my judgment Section 30(2) does not validate the State's treatment of Batra. To argue that it is not solitary
confinement since visitors are allowed, doctors and officials come and a guard stands by is not to take it out of the
category.
112. Since arguments have been addressed, let us enquire what are the vital components of solitary confinement ?
Absent statutory definition, the indication we have is in the Explanation to Paragraph 510 of the Jail Manual :
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Solitary confinement means such confinement with or without labour as entirely secludes the prisoner both from
sight of, and communication with, other prisoners.
113. The hard core of such confinement is (a) seclusion of the prisoner, (b) from sight of other prisoners, and (c)
from communication with other prisoners. To see a fellow being is a solace to the soul. Communication with one's
own kind is a balm to the aching spirit. Denial of both, with complete segregation superimposed, is the journey to
insanity. To test whether a certain type of segregation is, in Indian terms, solitary confinement, we have merely to
verify whether interdict on sight and communication with other prisoners is imposed. It is no use providing view of
or conversation with jail visitors, jail officers or stray relations. The crux of the matter is communication with other
prisoners in full view. Bad fellows in misery have heartloads to unload and real conversation between them has a
healing effect. Now that we have an Indian conceptualisation of solitary confinement in the Prison Manual itself,
lexical exercises, decisional erudition from other countries and legomachic niceties with reference to law dictionaries
are supererogatory. Even the backward psychiatry of the Jail Manual considers continuation of such confinement as
"likely to prove injurious to mind or body" or even prone to make the person "permanently unfit to undergo such
confinement" [vide paragraph 512(7) and (9) of the Jail Manual].
114. In Words and Phrases (Permanent Edn.) solitary confinement as a punishment is regarded as "the complete
isolation of the prisoner from all human society and his confinement in a cell of considerable size so arranged that
he had no direct intercourse or sight of any human being and no employment or instruction". It is worthwhile
comparing the allied but less harsh confinement called "close confinement" which means "such custody, and only
such custody as will safely secure the production of the body of the prisoner on the day appointed for his
execution".
115. A more practical identification of solitary confinement is what we find in Black's Law Dictionary :
In a general sense, the separate confinement of a prisoner, with only occasional access of any other person, and that
only at the discretion of the jailor; in a stricter sense, the complete isolation of a prisoner from all human society and
his confinement in a cell so arranged that he has no direct intercourse with or sight of any human being, and no
employment or instruction.
Complete isolation from all human society is solitary confinement in its stricter sense. The separate confinement of
a person with occasional access of other persons is also solitary confinement.
116. The ingenious arguments to keep Batra in solitudinous cell must fail and he shall be given facilities and
amenities of common prisoners even before he is 'under sentence of death'.
117. Is he under sentence of death ? Not yet.
118. Clearly, there is a sentence of death passed against Batra by the Sessions Court but it is provisional and the
question is whether under Section 30(2) the petitioner can be confined in a cell all by himself under a 24-hour guard.
The key words which call for humanistic interpretation are "under sentence of death" and "confined in a cell apart
from all other prisoners".
119. A convict is 'under sentence of death' when, and only when, the capital penalty inexorably operates by the
automatic process of the law without any slip between the lip and the cup. Rulings of this Court in Abdul Azeez v.
Karnataka MANU/SC/0134/1977 : 1977CriLJ1121 and D.K. Sharma v. M.P. State MANU/SC/0109/1975 :
1976CriLJ184 , though not directly on this point, strongly suggest this reasoning to be sound.
Section 366 Cr.P.C. has pertinence at this point :
366. (1) When the Court of Sessions passes a sentence of death, the proceedings shall be submitted to the High
Court and the sentence shall not be executed unless it is confirmed by the High Court.
(2) The Court passing the sentence shall commit the convicted person to jail custody under a warrant.
120. So it is clear that the sentence of death is inexecutable until 'confirmed by the High Court'. A self-acting
sentence of death does not come into existence in view of the impediment contained in Section 366(1) even though
the Sessions Court might have pronounced that sentence.
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121. I go further. Let us assume that the High Court has confirmed that death sentence or has de novo imposed
death sentence. Even there is quite a likelihood of an appeal to the Supreme Court and the plenary power of the
highest court extends to demolition of the death sentence. Naturally, the pendency of the appeal itself inhibits the
execution of the sentence. Otherwise, the appellate power will be frustrated, the man executed and the Supreme
Court stultified if it upsets the death sentence later. In our view, when an appeal pends against a conviction and
sentence in regard to an offence punishable with death sentence, such death sentence even if confirmed by the High
Court shall not work itself out until the Supreme Court has pronounced. Section 415 Cr.P.C. produces this result
inevitably.
415. (1) Where a person is sentenced to death by the High Court and an appeal from the judgment lies to the
Supreme Court under Sub-clause (a) or Sub-clause (b) of Clause (1) of Article 134 of the Constitution, the High
Court shall order the execution of the sentence to be postponed until the period allowed for preferring such appeal
has expired, or, if an appeal is preferred within that period, until such appeal is disposed of.
(2) Where a sentence of death is passed or confirmed by the High Court, and the person sentenced makes an
application to the High Court for the grant of a certificate under Article 132 or under Sub-clause (c) of Clause (1) of
Article 134 of the Constitution, the High Court shall order the execution of the sentence to be postponed until such
application is disposed of by the High Court, or if a certificate is granted on such application, until the period
allowed for preferring an appeal to the Supreme Court on such certificate has expired.
(3) Where a sentence of death is passed or confirmed by the High Court, and the High Court is satisfied that the
person sentenced intends to present a petition to the Supreme Court for the grant of special leave to appeal under
Article 136 of the Constitution, the High Court shall order the execution of the sentence to be postponed for such
period as it considers sufficient to enable him to present such petition.
122. Article 72 and 161 provide for commutation of death sentence even like Sections 433, 434 and 435 Cr.P.C. The
rules made under the Prisons Act, taking note of these provisions, provide for a petition for commutation by the
prisoner. Rule 547 and Rule 548 framed under the Prisons Act relate to the subject of petitions for mercy :
(a) Rules framed by the Government of India :
I.-Immediately on receipt of a warrant for execution consequent on the confirmation by the High Court of sentence
of death, Jail Superintendent shall inform the convict concerned that if he desires to submit a petition for mercy, it
should be submitted in writing within seven days of the date of such intimation.
II.-If the convicts submit a petition within the period of seven days prescribed by Rule I it should be addressed both
to the local Government and to the Governor-General in Council, and the Superintendent of Jail shall forthwith
despatch it, in duplicate, to the Secretary to the local Government in the Department concerned, together with a
covering letter reporting the date fixed for the execution and shall certify that the execution has been stayed pending
receipt of the orders of the Governor in Council and the Governor General in Council on the petition if no reply is
received within 15 days from the date of the despatch of the petition, the Superintendent shall telegraph to the
Secretary to the local Government drawing attention to the fact, but he shall in no case carry out the execution
before the receipt of the local Government's reply.
123. It follows that during the pendency of a petition for mercy before the State Governor or the President of India
the death sentence shall not be executed. Thus, until rejection of the clemency motion by these two high dignitaries
it is not possible to predicate that there is a self executory death sentence. Therefore, a prisoner becomes legally
subject to a self-working sentence of death only when the clemency application by the prisoner stands rejected. Of
course, thereafter Section 30(2) is attracted. A second or a third, a fourth or further application for mercy does not
take him out of that category unless there is a specific order by the competent authority staying the execution of the
death sentence.
124. The conclusion inevitably follows that Batra, or, for that matter, others like him, cannot be classed as persons
"under sentence of death". Therefore, they cannot be confined apart from other prisoners. Nor is he sentenced to
rigorous imprisonment and so cannot be forced to do hard labour. He is in custody because the Court has, pending
confirmation of the death sentence, commanded the Prison Authority to keep the sentencees in custody. The
concrete result may be clearly set out.
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125. Condemned prisoners like Batra shall be merely kept in custody and shall not be put to work like those
sentenced to rigorous imprisonment. These prisoners shall not be kept apart or segregated except on their own
volition since they do not come under Section 30(2). They shall be entitled to the amenities of ordinary inmates in
the prison like games, books, newspapers, reasonably good food, the right to expression, artistic or other, and
normal clothing and bed. In a sense, they stand better than ordinary prisoners because they are not serving any term
of rigorous imprisonment, as such. However, if their gregarious wishes induce them to live in fellowship and work
like other prisoners they should be allowed to do so. To eat together, to sleep together, to work together, to live
together, generally speaking, cannot be denied to them except on specific grounds warranting such a course, such as
homosexual tendencies, diseases, violent proclivities and the like. But if these grounds are to be the basis for
revocation of advantages to the prejudice of the sentencees he should be given a hearing in brief in essential
compliance with the canons of natural justice.
126. Deference to the erudite efforts of Counsel persuades me, before I part with this topic to refer to an anthology
of Anglo-American opinions, judicial and academic, which has been made available to us, to some of which I have
made reference. The Judges in the United States have had to deal with the issue and before I wind up on the legal
implications of solitary confinement I may refer to some of them.
127. Punitive segregation is regarded as too harsh that it is limited to no more than 8 days except with Special
approval of the Commissioner of Corrections in many American States.... The average period for this type of
punitive incarceration is five days. Now note what the U.S. District Court states :
This punishment is imposed only after a formal written notice, followed by a hearing before the disciplinary
committee.
128. The emphasis on limited periods and hearing before punishment have been built into the procedure for
punishment of solitary confinement. This is important when we consider whether any form of harsh imprisonment,
whether of solitary confinement or of bar fetters, should not comply with natural justice and be severely limited in
duration. Preventive solitude and fetters are an a fortiori case.
129. An Afro-American citizen Sostre, brought a Civil Rights action in Sostre v. Rockfeller 312 F. Suppl. 863 (1970)
complaining of solitary confinement otherwise called punitive segregation. The year long stay in that segregation cell
was bitter. The sting of the situation was 'human isolation loss of group privileges'. On this Judge held :
this Court finds that punitive segregation under the conditions to which plaintiff was subjected at Green Haven is
physically harsh, destructive of morale, dehumanizing in the sense that it is needlessly degrading, and dangerous to
the maintenance of sanity when continued for more than a short period of time which should certainly not exceed
15 days.
130. The decision on punitive segregation confinement in Sostre v. Rockfeller is of value since the case, as here, is
one of indefinite punitive confinement. The Court held that it was so disproportionate that it amounted to cruel and
unusual punishment :
The Court also holds that the totality of the circumstances to which Sostre was subjected for more than a year was
cruel and unusual punishment when tested against 'the evolving standards of decency that mark the progress of
maturing society'. (Trop v. Dulles, 356 U.S. 86, 101(1958) (Opinion of Warren C.J.).
This condemnation of segregation is the experience years ago of people going stir crazy, especially in segregation".
(T. 320) The conditions which undeniably existed in punitive segregation of Green Haven this Court finds, "could
only serve to destroy completely the spirit and undermine the sanity of the prisoner" Wright v. Machmann, supra,
387. F. 2nd at 526, when imposed for more than fifteen days. Subjecting a prisoner to the demonstrated risk of the
loss of his sanity as punishment for any offence in prison is plainly cruel and unusual punishment as judged by
present standards of decency.
131. What is of considerable interest is the observation on procedural due process which in our country has its
counter-part in Article 21, as expounded in Maneka Gandhi. The American Judge observed in Sostre's case :
Very recently, the Supreme Court reiterated the firmly established due process principles that where governmental
action may seriously injure an individual and the reasonableness of that action depends on fact findings, the
evidence used to prove the government's case must he disclosed to the individual so that he has an opportunity to
30
show that it is untrue. The individual must also have the right to retain counsel. The decision-maker's conclusion
must rest solely on the legal rules and evidence adduced at the hearing. In this connection, the decision-maker
should state the reasons for the determination and indicate the evidence upon which he relied. Finally, in such cases,
the High Court ruled, an impartial decision-maker is essential.
The Court holds that plaintiff was, in effect, 'sentenced' to more than a year in punitive segregation without the
minimal procedural drastic punishment upon a prisoner.
132. There has been considerable emphasis by the Additional Solicitor General on the prison setting in truncating
processual justice. The U.S. District Court in Sostre had this to say :
The difficult question, as always, is that process was due. In answering that question, we may not uncritically adopt
the holdings of decisions that take color from contexts where the shadings are as different from the instant case as
the cases we have discussed:
As a generalization, it can be said that due process embodies the differing rules of fair play, which through the years,
have become associated with differing types of proceedings. Whether the Constitution requires that a particular right
obtain in a specific proceeding depends upon a complexity of factOrs. The nature of the alleged right involved, the
nature of the proceeding, and the possible burden on that proceeding, are all considerations which must be taken
into account.
133. A meaningful passage in the appellate judgment in the same case may be excerpted :
We are not to be understood as disapproving the judgment of many courts that our constitutional scheme does not
contemplate that society may commit law breakers to the capricious and arbitrary actions of prison officials. If
substantial deprivations are to be visited upon a prison, it is wise that such action should at least be premised on
facts rationally determined. This is not a concept without meaning. In most cases it would probably be difficult to
find an inquiry minimally fair and rational unless the prisoner were confronted with the accusation, informed of the
evidence against him.
134. The Supreme Court of the United States in Wolf v. McDonnell 41 L. Ed. 2. 935 considered the question of due
process and prison disciplinary hearing, confrontation and cross-examination and even presence of counsel. Mr.
Justice White, speaking for the majority, struck the balance that the due process clause demanded and insisted :
... We hold that written notice of the charges must be given to the dsciplinary-action defendant in order to inform
him of the charges and to enable him to marshal the facts and prepare a defence. At least a brief period of time after
the notice, no less than 24 hours, should be allowed to the inmate to prepare for the appearance before the
Adjustment Committee.
We also hold that there must be a "written statement by the fact-finders as to the evidence relied on and reasons"
for the disciplinary action.
Although Nabraska does not seem to provide administrative review of the action taken by the Adjustment
Committee, the actions taken at such proceedings may involve review by other bodies. They might furnish the basis
of a decision by the Director of Corrections to transfer an inmate to another institution because he is considered "to
be incorrigible by reason of frequent intentional breaches of discipline", and are certainly likely to be considered by
the state parole authorities in making parole decisions. Written records of proceedings will thus protect the inmate
against collateral consequences based on a misunderstanding of the nature of the original proceeding. Further, as to
the disciplinary action itself, the provision for a written record helps to insure that administrators, faced with
possible scrutiny by state officials and the public, and perhaps even the courts, where fundamental constitutional
rights may have been abridged, will act fairly. Without written records, the inmate will be at a severe disadvantage in
propounding his own cause to or defending himself from others. It may be that there will be occasions when
personal or institutional safety are so implicated, that the statement may properly exclude certain items of evidence,
but in that event the statement should indicate the fact of the omission. Otherwise, we perceive no conceivable
rehabilitative objective or prospect of prison disruption that can flow from the requirement of these statements. We
are also of the opinion that the inmate facing disciplinary proceedings should be allowed to call witnesses and
present documentary evidence in the defence when permitting him to do so will not be unduly hazardous to
institutional safety or correctional goals.
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135. As to the right to counsel Mr. Justice White felt that then the proceedings may receive an "adversary cast", but
proceeded to observe :
Where an illiterate inmate is involved, however, or where the complexity of the issue makes it unlikely that the
inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case, he
should be free to seek the aid of a fellow inmate, or if that is forbidden, to have adequate substitutes aid in the form
to help from the staff or from a sufficiently competent inmate designated by the staff. We need not pursue the
matter further here, however, for there is no claim that respondent Mcdonnell, is within the class of inmates entitled
to advice or help from others in the course of a prison disciplinary hearing.
The learned Judge, however, felt that in situations where Habeas Corpus applications had to be made qualified
inmates may be permitted to serve as legal advisers.
136. Mr. Justice Marshall went much farther than the majority and observed :
... by far the greater weight of correctional authority is that greater procedural fairness in disciplinary proceedings,
including permitting confrontation and cross-examination, would enhance rather than impair the disciplinary
process as a rehabilitative tool.
Time has proved... that blind deference to correctional officials does no real service to them. Judicial concern with
procedural regularity has a direct hearing upon the maintenance of institutional order; the orderly care with which
decisions are made by the prison authority is intimately related to the level of respect with which prisoners regard
that authority.
There is nothing more corrosive to the fabric of a public institution such as a prison than a feeling among those
whom it contains that they are being treated unfairly.
As the Chief Justice noted... "fair treatment... will enhance the chance of rehabilitation by avoiding reactions to
arbitrariness."
... We have recognized that an impartial decision maker is a fundamental requirement of due process in a variety of
relevant situations, and I would hold this requirement fully applicable here. But in my view there is no constitutional
impediment to a disciplinary board composed of responsible prison officials like those on the Adjustment
Committee here. While it might well be desirable to have persons from outside the prison system sitting on
disciplinary panels, so as to eliminate any possibility that subtle institutional pressures may effect the outcome of
disciplinary cases and to avoid any appearance of unfairness, in my view due process is satisfied as long as no
member of the disciplinary board has been involved in the investigation or prosecution of the particular case, or has
had any other form of personal involvement in the case.
Mr. Justice Douglas, in his dissent, quoted from an earlier case :
Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental
action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence
used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that
it is untrue. While this is important in the case of documentary evidence, it is even more important where the
evidence consists of the testimony of individuals whose memory might be faulty or who in fact, might be perjurers
or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealously. We have formalized these
protections in the requirements of confrontation and cross-examination.... this Court has been zealous to protect
these rights from erosion. It has spoken out not only in criminal cases... but also in all types of cases where
administrative and regulatory actions were under scrutiny. The decision as to whether an inmate should be allowed
to confront his accusers should not be left to the unchecked and unreviewable discretion of the prison disciplinary
board. The argument offered for that result is that the danger of violent response by the inmate against his accusers
is great, and that only the prison administrators are in a position to weigh, the necessity of secrecy in each case. But
it is precisely this unchecked power of prison administration which is the problem that due process safeguards are
required to cure. "Not only, the principle of judicial review, but the whole scheme of American government, reflects
an institutionalized mistrust of any such unchecked and unbalanced power over essential liberties. That mistrust
does not depend on an assumption vs. inveterate venality or incompetence on the part of men in power....
32
137. Going the whole length of extending the right to cross-examination, the learned Judge took the view that fair
procedure inside prisons is part of a successful rehabilitative programme, and observed :
The goal is to reintegrate inmates into a society where men are supposed to be treated fairly by the government, not
arbitrarily. The opposed procedure will be counter-productive. A report prepared for the Joint Commission on
Correctional Manpower and Training has pointed out that the "basic hurdle (to reintegration) in the concept of a
prisoner as a non-person and the jailor as an absolute monarch. The legal strategy to surmount this hurdle is to
adopt rules... maximizing the prisoner's freedom, dignity, and responsibility More particularly, the law must respond
to the substantive and procedural claims that prisoners may have....
138. The substance of these decisions is that 'a prisoner is not temporarily a slave of the State and is entitled to the
fair process of law before condemnation to solitary confinement. The U.S. Judges generally have refused to accept
arbitrary or capricious discipline in jail administration.
We would not lightly condone the absence of such basic safeguards against arbitrariness as adequate notice, an
opportunity for the prisoner to reply to charges lodged against him, and a reasonable investigation into the
substantial discipline Sostre v. Rockefeller. 312 F. Suppl. 863 1970
139. Another passage from Judge Fainberg in the same case deserves our attention :
In this Orwellian age, punishment that endangers sanity, no less than physical injury by the strap, is prohibited by the Constitution.
Indeed, we have learned to our sorrow in the rest few decades that true inhumanity seeks to destroy the psyche rather than merely the body.
The majority opinion emphasizes that after all Sostre could have obtained release from isolation at my time by
agreeing to abide by the rules and to cooperate. Perhaps that is so, but that does not change the case.... The
possibility of endless solitary confinement is still there, unless the prisoner 'gives in'. The same observation could be
made if Sostre were tortured until he so agreed, but no one would argue that torture is therefore permitted. The point
is that the means used to exact submission must be constitutionally acceptable, and the threat of virtually endless isolation that endangers
sanity is not.
(emphasis, added)
140. Quite a few other decisions of this lesser level courts of the United States have been brought to our notice by
counsel in an endeavour to validate or invalidate solitary confinement from a constitutional angle. Unless driven to
pronounce upon constitutionality we may not go into the question at all. Even so, for a perspicacious understanding
of the facets of solitary confinement, its soul or rather its soullessness, I may refer to a few of the cited cases. The
Court will stand four square between a prisoner and the methodology of destroying completely the spirit and
undermining the sanity of the prisoner in jail. This we do, not because of anything like the Eighth Amendment but
because unreasonable restrictions and arbitrary deprivations are abnoxious to Part III, especially Articles 14 and 19,
even within the prison setting.
141. The facile submission, 'that the determination as to the methods of dealing with such incorrigible persons is a
matter of internal management of State prisons and should be left to the discretion of prison administratOrs...' is
untenable if, within the cell, fundamental concepts of decency do not prevail and barbaric conditions and degrading
circumstances do violence to civilised standards of humane decency, as the Court pointed out in Hancock v. Avery.
The goals of prison keeping, especially if it is mere safe keeping, can be attained without requiring a prisoner to live
in the exacerbated conditions of bare floor solitude.
142. Functionally speaking, the court has a distinctive duty to reform prison practices and to inject constitutional
consciousness into the system :
The challenge of prison reform is too compelling for courts to decline to exercise their inherent power to protect
the constitutional rights of the incarcerated. Affording such protection demands that courts do more than merely
invalidate specific practices; it demands that they confront the institution of prison as a whole. The totality of
conditions approach and the purposive model of analysis afford a framework for this confrontation.
Moreover, prison officials may welcome judicial intervention, because it enables them to initiate reforms that are
politically and financially costly. Studies have demonstrated that one by-product to totality of conditions prison cases
is that they sensitized both the public and prison officials to the need for prison reform. As a result, progressive
33
prison authorities and humanitarian citizens' groups are able to take advantage of this increased sensitivity to
advocate reform.
The Sobraj Case
143. I now switch to the averments in the petition by Sobraj. Chief Justice Beg and his companion Judges including
me, it may be right to state here, did incidentally see Sobraj (the other petitioner), standing in chains in the yard, with
iron on wrists, iron on ankles iron on waist and iron to link up, firmly rivetted at appropriate places, all according to
rules !
144. The manacled numbers of the Tihar Jail community appear to be alarmingly large and fluctuating, if we go by
the averments in the affidavit of the petitioner and the counter affidavit by the State. In January, 1978 according to
Sobraj, there were 207 under trial prisoners with bar letters in Tihar Jail and all of them, exception Sobraj, were
Indian citizens, all of them belonging to the 'C class, which is a poverty sign, and many of them minors ! We are
remind of what Douglas, J. observed in Hicks 383 US 252 (1966) :
The wanderer, the pauper, the unemployed-all were deemed to be potential criminals....
I do not see how economic or social statutes can be made a crime any more than being a drug addict can be.
Even the intervener, Citizens for Democracy, have, with passion but without partisanship, complained that 'over a
hundred other prisoners in Tihar Jail are subjected to these inhuman conditions' ! The State has controverted the
arithmetic but has not refuted the thrust of the submission that a substantial number of undertrial prisoners has
suffered aching irons over their anatomy. As against 207 the State admits 'a total of 93 prisoners... 'in bar fetters'.
There is no dispute that all but the petitioner were of the 'C' class category, that is, men whose socio-economic lot
was weak. The Superintendent of the Central Jail has a case that on January 20, 1978, 'the bar fetters of 41 prisoners
were removed'. Likewise, on February 6, 1978, bar fetters of 26 prisoners were removed. The trend of the counter-
affidavit is that this Superintendent has taken some ameliorative measures to normalise conditions in the Jail. The
discrepencies between the competing statements do not demolish the gravemen of the charge that the "iron'
methodology of keeping discipline has had a somewhat dangerous access into the prison Superintendent's mental
kit. If irons must rule the jail community there is jejune justice in our prison campuses. The abolition of irons
altogether in some states without calamitous sequel as, e.g. Kerala and Tamil Nadu, is worth mention.
145. Now the Sobraj facts. Sobraj has been in custody since July 6, 1976, having been arrested from Vikram Hotel,
along with three criminal companions of British, Australian and French extraction. His Interpol dossier is stated to
be terrible and his exploits include jail break and grave crime. We merely mention this fact but decline to be
deflected by it because it is disputed, although the jail officers cannot be faulted if they are influenced by such
information. The Sobraj story, since his arrest in July 1976, is one of continuous and indeterminate detention, partly
under the Maintenance of Internal Security Act and currently as an undertrial facing serious charges, including
murder, The prisoner challenged the legality of arbitrary 'irons' in the High Court but was greeted with laconic
dismissal. The parsimonious words, in which the order was couched, ran :
This is a petition from jail. In view of the facts the petition is not maintainable. It is dismissed in limine. The
petitioner informed of the order.
146. Discomfited Sobraj has moved this Court.
147. The disturbing fact of years of pre-trial imprisonment apart, the agonising aspect, highlighted by Dr. Ghatate
for the petitioner and by Shri Tarkunde as intervener, is that until the Court sometime ago directed a little relaxation
in the rigour of the 'iron' prescription, Sobraj (and how many submissive sufferers like him there are?) has been
continuously subjected to the torturesome 'bar fetters', through twenty four hours daily and every day of the month,
'religously' for nearly two years, what with the kindly presumption of innocence jurisprudentially playing upon him
in tragic irony. Sobraj bitterly complains of persistence in bar fetters notwithstanding wounds on heels and medical
advice to the contrary. The State defends bar fetters statutorily by Section 56 of the Prisons Act and realistically as
preventive medicine for 'dangerousness' pathology, in exercise of the wise discretion of the Jail Superintendent,
overseen by the revisory eye of the Inspector General of Prisons and listened to by Jail VisitOrs. The bar fetter
procedure, denounced by counsel as intolerable, is described by the State as inconvenient but not inhumane, evil but
inevitable, where the customer is one with dangerous disposition and attainments. It is admitted that Sobraj has
been in fetters to inhibit violence and escape.
34
148. The sorrows of Sobraj cannot be appreciated nor his constitutional claims evaluated without a fuller account of
the bar fetter chapter of his jail life. Ever since July 6, 1976, he has been kept in bar fetters, duly welded, all these
months without respite through the period of preventive detention and after. We have it on the petitioner's word
that no holiday was given to the bar fetter therapy, although the Resident Medical Officer has noted, in the history
ticket of the prisoner, entries which are tell-tale.
9-2-1977-multiple infected wounds on right ankles. Bar fetters be removed from right leg for 15 days. Sd/- Dr.
Mittal, R.M.O. 9-2-1977-Bar fetters removed from right leg for 15 days on medical advice. Sd/- Mr. Mukhreja
Assistant Superintendent of Jails. Sd/- Mr. Andhur Dy. Superintendent of Jails. 12-2-1977-Bar fetters also to be
removed from left foot. Sd/- Dr. Bokra. 12-2-1977-Fetters be removed from left foot for two weeks, on medical
advice. Sd/- Mr. Marwa, Dy. Superintendent of Jails (Respondent No. 3) 18-2-1977-He is desperate and dangerous
prisoner; for security reasons it is necessary to keep him in fetters. His wounds may also be dressed. (emphasis
added) Sd/- Mr. Marwa, Dy. Superintendent of Jails (Respondent No. 3)
149. The counter-affidavit of Shri Marwa, the then Superintendent, has taken up an extreme position about which I
am sceptical. For instance, he has asserted that the Resident Medical Officer had examined the petitioner on 3rd
September 1977, and found no wound on his ankles. Significantly on September 4, 1977, this Superintendent has
recorded a note in his journal : "I was informed by Shri S.S. Lal, A.S., that Charles Sobraj has inflicted injury on his
ankles deliberately. I am certain in my mind that he has done so as to be produced before Hon'ble Supreme Court
of India on 6-9-1977 in connection with his Writ Petition, wherein he has mentioned that his ankles are injured and
thus his bar fetters should be removed.
150. In an endeavour to make out that there was discrimination and recklessness in the imposition of bar fetters, the
petitioner has set out two circumstances.
151. He has averred :
It is significant to mention that the undertrial prisoners in the following serious cases who were confined in Tihar
Jail were without any fetters :-
(i) All undertrial prisoners in Baroda Dynamite case who were also detained under MISA;
(ii) All the persons accused in the Hon'ble Chief Justice of India (Shri A.N. Ray's) attempt;
(iii) All accused persons in Samastipur Bomb Blast case where the former Railway Minister, Shri L.N. Mishra, was
killed;
(iv) All accused persons in Vidya Jain murder case; and
(v) All accused persons in famous Bank Van Robbery case held at New Delhi;
152. What may have relevance to the criticism of the bar fetters technology running riot in Tihar Jail is another set
of circumstances about this high security Jail which was commissioned after Independence (1958).
153. The first is, that a large number of prisoners, a few hundred at times-minors and undertrials too-are shackled
day and night for days and months on end by bar fetters-too shocking to contemplate with cultural equanimity. And,
this, prima facie, shows up the class character of jail injustice for an incisive sociologist. Practically all these fettered
creatures are the poor. Sobraj is the only B class prisoner subjects fetters, the others being C class people. A cynical
but to observer may comment necessarily violent in Gandhian India but that the better-off are able to buy the class
justice current in the 'caste system' behind the bars-according to rule, of course. Anyone whose socio-economic level
is higher is a B class prisoner, undertrial or convict; everyone whose lot is below that line is a C class jailbird who is
often deprived of basic amenities and obliged to do hard labour if he is a convict. Poverty cannot be degraded as
'dangerousness' except by subversion of our egalitarian ethos. How come that all the undertrial who are under bar
fetters are also from the penurious ? This, suspiciously, is 'soft' justice syndrome, towards the rich, not social justice
response towards the poor.
154. The petitioner has alleged additional facts to paint a para-violent picture of the prison atmosphere and
frightening profile of the jail hierarchy. For instance, if I may excerpt the portions of his affidavit;
35
In para 630 of the Punjab Jail Manual, which is of 1898, still the punishment of Whipping, para 628 and 629, is valid
and the Jail Authorities used the said Whipping Rule at their own discretion, that is to say almost daily beating the
prisoners and some time beating them up to Death as a case which happened in 1971 and went unpunished but for
some Jail Officials suspended for an year.
155. Some flegellations and killings are referred to by him which may be skipped. The lurid lines so drawn are
blistering commentary on the barbarity of prison regimen even if a fraction of the imputations possesses veracity. A
fraction of the facts alleged, if true may warrant the fear that a little Hitler lingers around Tihar precincts.
156. The counter-version on the factual and legal aspects of the Sobraj charges against the Prison Authorities has
already been indicated.
157. Right at this stage, 1 may read Section 56, which is the law relied on to shackle the limited freedom of
movement of Sobraj :
56. Whenever the Superintendent considers it necessary (with reference either to the State of the prison of the
character of the prisoners) for the safe custody of any prisoners that they should be confined in irons, he may,
subject to, such rules and instructions as may be laid down by the Inspector General with the sanction of the Local
Government, so confine them.
158. Before formulating the heads of argument in the Sobraj case it is necessary to state that the respondent, after a
vain effort to secure certain pre-Independence government proceedings of the Punjab, now in Pakistani archives,
admitted that it could not make good the validating existence of the local government's sanction for the instructions
of the Inspector General of Prisons, as required by Section 56 of the Act, although such an instruction is found in
the Jail Manual. Nothing else, which compels judicial notice is available, and so the rule is not shown to be valid.
Sobraj's grievance is shocking shackling with bar fetters. Iron on wrists, iron on ankles, iron in between, welded
strongly that an oppressive 6 lbs. weight hampers movement, hinders sleep and hurts all the time so much that life is
poor purchase. And yet he is in a stage of presumptive innocence and under judicial custody. The basic fact that
Sobraj is fettered during the Jail Superintendent's sole discretion is not denied; and he has been enduring this distress
for a chronic couple of years with no hope of relief except the unlikely change of heart of the head of the prison.
The defence of the State is that high-risk prisoners, even the under-trials, cannot be allowed to bid for escape, and
where circumstances justify, any result oriented measure, including fetters, is legally permissible. It is argued that a
prison is not play-ground and hyper-sensitive reaction to irons may be functional folly, if we realise that custodial
security has high prison priority. Dangerous persons, if they are to be produced to answer justice, must suffer
indefinite immobilisation, even if painfully inconvenient, not punitively imposed but preventively clamped down,
until the danger lasts.
Rights and Realities
159. Sobraj, in chains, demands constitutional rights for man. For there are several men like him in the same prison,
undertrials, indigents, even minOrs. The official journal allegedly registers the laconic reason for the Jail
Superintednent's fiat to impose bar fetters and these 'dangerous' reasons are recorded in English in the history
tickets of the (mostly) 'C' class 'un-English' victims. This voodoo is in compliance with the formula of the rule and
jail visitors march past. The Inspector-General of prisons revises, if moved, and the spirit-crushing artifice survives
as a technique of jail discipline. Ordinarily, the curtain falls, the groan or moan is hardly heard, the world falls to
sleep, the Constitution and the Court sublimely uphold human rights but the cells weep for justice unheard.
160. There is a sad fascination to read Nehru on the Naini Prison which is but a portrait of any Indian prison of
those times :
For years and years many of these 'lifers' do not see a child or woman, or even animals. They lose touch with the
outside world completely and have no human contacts left. They brood and warp themselves in angry thoughts of
fear and revenge and hatred; forget the good of the world, the kindness and joy, and live only wrapped up in the
evil, till gradually even hatred loses its edge and life becomes a soulless thing, a machine like routine. Like
automations they pass their days each exactly like the other, and have few sensations; except one fear ! From time to
time the prisoner's body is weighed and measured. But how is one to weigh the mind and the spirit which wilt and
stunt themselves and wither away in this terrible atmosphere of oppression ? People argue against the death penalty,
and their arguments appeal to me greatly. But when I see the long drawn out agony, of a life spent in prison, I feel
36
that it is perhaps better to have that penalty rather than to kill a person slowly and by degrees. One of the 'lifers'
came up to me once and asked me. "What of us lifers ? Will Swaraj take us out of this hell ?
161. The great problems of law are the grave crises of life and both can be solved not by the literal instruction of
printed enactments, but by the interpretative sensitization of the heart to 'the still, sad music of humanity'.
162. The humane thread of jail jurisprudence that runs right through is that no prison authority enjoys amnesty for
unconstitutionality, and forced farewell to fundamental rights is an institutional outrage in our system where stone
walls and iron bars shall bow before the rule of law. Since life and liberty are at stake the gerontocracy of the Jail
Manual shall have to come to working terms with the paramountcy of fundamental rights.
163. A valuable footnote to this approach may be furnished by recalling how Mahatma Gandhi regarded jails as
'social hospitals' and Prime Minister Indian Correctional Journal, Vol. 1, No. 2, July 1957 p. 6a Shri Morarji Desai,
while he was Home Minister of Bombay way back in 1952, told the conference of Inspectors-General of Prisons :
it is not enough to consider a prisoner merely as a prisoner.... To my mind a prisoner is not a matter of contempt.
Even the worst criminal, as you call him, is after all a human being as good or bad as any other outsider; whatever
remedies you can find out to treat prisoners, unless your attitude changes, and you consider that the prisoners inside
the jails are really human beings equal in self-respect to your self-respect, you will never be affective in whatever you
do, because you will affect them only in so far as you extract from them the same respect for you and also good
feeling for you and that cannot come unless you behave on equal terms with them... Indian Correctional Journal,
Vol. 1, No. 2, July 1957 pp. 2-5.
164. A synthetic grasp of the claims of custodial security and prison humanity is essential to solve the dilemma
posed by the Additional Solicitor General. If we are soft on security, escapes will escalate : so be stern, 'red in tooth
and claw' is the submission. Security first and security last, is an argument with a familiar and fearful ring with
Dwyerlist memories and recent happenings. To cry 'wolf as a cover for official violence upon helpless prisoners is a
cowardly act. Chaining all prisoners, amputating many, caging some, can all be fobbed off, if every undertrial or
convict were painted as a potentially dangerous maniac. Assuming a few are likely to escape, would you shoot a
hundred prisoners or whip everyone every day or fetter all suspects to prevent one jumping jail ? These wild
apprehensions have no value in our human order, if Articles 14, 19 and 21 are the prime actors in the constitutional
play. We just cannot accede to arguments intended to stampede courts into vesting unlimited power in risky hands
with no convincing mechanism for prompt, impartial check. A sober balance, a realistic system, with monitoring of
abuses and reverence for human rights-that alone will fill the constitutional bill.
165. The grave danger of over-emphasizing order, discipline and security within the prison, while interpreting
Section 56, is that it lands itself unawares to a pre-conceived, one sided meaning.
The unconscious or half-conscious wresting of fact and word and idea to suit a pre-conceived notion or the doctrine
or principle of one's preference is recognised by Indian logicians as one of the most fruitful sources of fallacy; and it
is perhaps the one which it is most difficult for even the most conscientious thinker to avoid. For the human reason
is incapable of always playing the detective upon itself in this respect; it is its very nature to seize upon some partial
conclusion, idea, principle, become its partisan and make it the key to all truth, and it has an infinite faculty of
doubting upon itself so as to avoid detecting in its operations this necessary and cherished weakness Sri Aurobindo-
Essays on the Gita, p. 37.
166. Judges must warn themselves against this possibility because the nation's confidence in the exercise of
discretionary power affecting life and liberty has been rudely shaken especially when the Court trustingly left it to the
Executive. A prison is a sound-proof planet, walled from view and visits regulated, and so, rights of prisoners are
hardly visible, checking is more difficult and the official position of the repository of power inspires little credibility
where the victims can be political protesters, unpopular figures, minority champions or artless folk who might fail to
propitiate arrogant power of minor minions.
167. The learned Additional Solicitor General commended for our consideration the judicial strategy of softening
draconian disablement implied in Section 56 by a process of interpretation as against invalidation. We agree, and
proceed to consider whether the language of Section 56 lends itself to such leniency. The impugned provision runs
thus :
37
Whenever the Superintendent considers it necessary (with reference either to the state of the prison or the character
of the prisoners) for the safe custody of any prisoners that they should be confined in irons, he may, subject to such
rules and instructions as may be laid down by the Inspector-General with the sanction of the Local Government, so
confine them.
168. The relevant 'rules' may also be referred to. A whole fasciculus of rules under the heading 'confinement in
irons' deals with this subject. The more relevant ones are Rules 423, 428, 432, 433 and 435. These 'rules' merely
provide for stacking irons, describe their details, specify the category and conditions of prisoners who may be
required to wear irons, direct their medical examination, the removal of fetters and the like.
169. Besides, there are provisions which specify situations where ordinarily prisoners are exempt from fetters, and
fetters shall not, ordinarily and without special reasons to be recorded by the Superintendent in his Journal, be
imposed on any 'unconvicted criminal prisoner' (See Rule 430). Sobraj is yet unconvicted. The other categories so
exempted need not detain us. To avoid confusion it is not apt to state that these 'rules and instructions' have no legal
force as the source of power, Section 56, desiderates for their validity the sanction of the 'Local Government'. After
strenuous efforts to trace such sanction, the Addl. Solicitor General failed to make good this condition precedent.
The sanction being absent, the instructions are no more than self-presented procedure and cannot qualify for
recognition under Article 21. In this sense, Section 56 stands unclad and must be constitutionally tested on its
sweeping phraseology of naked brevity.
170. Even otherwise, the rule's come into play only to the extent the Act permits, since the stream cannot rise above
the source. Therefore, Section 56 demands close scrutiny. Confinement in irons is permitted for the safe custody of
prisoners. Therefore, the sine qua non is the presence of safety to the point of necessity compelling fetters. Safe
custody is imperilled only where escape probability exists. Such escape becomes a clear and present danger only
where the prisoner has by his precedents shown an imminent attempt to escape. Mere violence by a prisoner or bad
behavior or other misconduct which has no reference to safe custody has no relevance to Section 56. Supposing a
prisoner were short-tempered, vulgar or even homosexual, his safe custody within the prison is not in jeopardy. His
misbehavior unrelated to security is the only issue then involved and correctional therapy is the prescription. Section
56 is not attracted so long as the safe custody of that prisoner is not shaky. The focus is on his escape and, maybe,
on overt and covert attempts in that behalf. Other disorder or vice may deserve disciplinary attention but Section 56
is not a nostrum for all administrative aches within jails.
171. The second requirement, of Section 56 is that the Superintendent must consider it necessary to keep the
prisoner in irons for the sake of safe custody. The character of the prisoner, not generally, but with specific
reference to safe custody, must be studied by the Superintendent and if he reaches the conclusion responsibly that
there is necessity to confine the man in irons to prevent escape from custody, he may exercise his powers under
Section 56. To consider a step as necessary the authority must exercise intelligent care, bestow serious consideration
and conclude that the action is not only desirable or advisable but necessary and unavoidable. A lesser standard
shows scant regard for the statutory imperative.
172. Section 56 empowers the Deputy Superintendent to put a prisoner in irons only in situations of urgent
necessity followed by an immediate report to the Superintendent. The point that emerges is that only a finding of
absolute necessity can justify the exercise of the 'iron' power by the Deputy Superintendent and the Superintendent
must respect the spirit of Section 58 when he uses the power. This must be an objective finding, and must,
therefore, be based on tangible matters which will be sufficient to satisfy a man acting with a sense of humane
justice, properly instructed in the law and assessing the prognosis carefully. Random decisions, freak impressions,
mounting suspicions, subjective satisfaction and well-grounded allergy to a particular prisoner may be insufficient.
We must remember that even though Section 56 is a pre Constitution measure its application must be governed by
the imperative of Articles 14, 19 and 21. Life and liberty are precious values. Arbitrary action which tortuously tears
into the flesh of a living man is too serious to be reconciled with Articles 14 or 19 or even by way of abundant
caution. Whatever is arbitrary in executive action is pregnant with discrimination and violates Article 14. Likewise,
whatever decision is the product of insufficient reflection or inadequate material or unable to lead to the inference
of a clear and present danger, is unreasonable under Article 19, especially when human freedom of helpless inmates
behind prison walls is the crucial issue. Article 21, as we have explained while dealing with Batra case, must obey the
prescriptions of natural justice (see Maneka Gandhi) as to the quantum and quality of natural justice even in an
emergency). Reasonableness in this area also involves some review of the action of an executive officer so that the
prisoner who suffers may be satisfied that a higher official has with detachment, satisfied himself about the necessity
to better him. Such administrative fairness is far more productive of order in prison than the counter productive
alternative of requiring every security suspect to wear iron. Prison disorder is the dividend from such reckless
'discipline' and violent administrative culture, which myopic superintendents miss.
38
173. This constitutional perspective receives ideological reinforcement from the observations of Mr. Justice Douglas
in Morrissey v. Brewer 33 L. Ed. 484, 505.
The rule of law is important in the stability of society. Arbitrary actions in the revocation of paroles can only impede
and impair the rehabilitative aspects of modern penology. "Notice and opportunity for hearing appropriate to the
nature of the case", are the rudiments of due process which restore faith that our society is run for the many, not the
few, and that fair dealing rather than caprice will govern the affairs of men.
174. To judge whether Sobraj's fetters were legal, we must go further into the period for which this cruel process
was to persist. Even prisoners who are 'lifers' shall not be retained in iron for more than three months except with
the special sanction of the Inspector General (See Section 57). The rules also take a horrifying view of the trauma of
fetters.
175. The power to confine in iron can be constitutionalised only if it is hemmed in with severe restrictions. Woven
around the discretionary power there must be protective web that balances security of the prison and the integrity of
the person. It is true that a discretion has been vested by Section 56 in the Superintendent to require a prisoner to
wear fetters. It is a narrow power in a situation of necessity. It has to be exercised with extreme restraint. The
discretion has to be based on an objective assessment of facts and the facts themselves must have close relevance to
safe custody. It is good to highlight the total assault on the human flesh, free movement and sense of dignity this,
'iron' command involves. To sustain its validity in the face of Article 19 emergencies uncontrollable by alternative
procedures are the only situations in which this drastic disablement can be prescribed. Secondly processual
reasonableness cannot be burked by invoking panic-laden pleas, rejected in Charles Wolff by the U.S. Supreme
Court.
176. Such a power, except in cases of extreme urgency difficult to imagine in a grim prison setting where armed
guards are obviously available at instant notice and watch towers vigilantly observe (save in case of sudden riot or
mutiny extraordinarly), can be exercised only after giving notice and hearing and in an unbiased manner. May be that
the hearing is summary, may be that the communication of the grounds is brief, maybe that oral examination does
not always take place; even so natural justice, in its essentials, must be adhered to for reason's we have explained in
Gill and Maneka Gandhi.
177. I regard as essential that reasons must be assigned for such harsh action as is contemplated and such reasons
must be recorded in the history ticket of the prisoner as well as in the journal. Since the reasons are intended to
enable the petitioner to challenge, if aggrieved, the record must be in the language of the petitioner or of the region,
and not in English as is being done now.
178. There must be special reasons of an extraordinary or urgent character when fetters are fastened on an
unconvicted prisoner. Those substantial reasons must be recorded and its copy furnished to the prisoner. Rule 430
commands that this be done. Even otherwise, the procedural panacea of giving specific reasons (not routine chants)
has a wholesome restraining effect. And the constitutional survival of Section 56 depends on the formula of
reasonableness.
179. The spirit and substance of Rule 432 make it clear that the record of the reasons is imperative and has a
function. Rule 433, whatever the Superintendent's affidavit may say, clearly shows that the wearing of fetters must
be for the briefest periods and deserves frequent scrutiny. Indeed, in our view, except in remotely extraordinary
situations, rational justification for bar fetters of an unconvicted prisoner cannot be found except on the confession
that the Prison Superintendent and his staff are incompetent to manage and indifferent to reasonableness. We
cannot be swept off our constitutional feet by scary arguments of deadly prisoners and rioting gangs, especially
when we find States in India which have abandoned the disciplinary barbarity of bar fetters (Tamil Nadu, Kerala et.
al).
180. The import of Rule 435 is that even in cases where security compels imposition of fetters this should be only
for the shortest possible time. The fact that, even as a punishment, iron's must be restricted in its use (see Section
46(7)) argues for prophylactic irons being for the shortest spell. At night, when the prisoner is in a cell there is no
particular reason to apprehend or possibility of escape. So nocturnal hand-cuffs and chains are obnoxious and
vindictive and anathema in law-
181. The infraction of the prisoner's freedom by bar fetters is too serious to be viewed lightly and the basic features
of 'reasonableness' must be built into the administrative process for constitutional survival. Objectivity is essential
39
when the shackling is prima facie shocking. Therefore, an outside agency, in the sense of an officer higher than the
Superintendent or external to the prison department, must be given the power to review the order for 'irons'. Rule
423 speaks of the Inspector General of Prisons having to be informed of the circumstances necessitating fetters and
belchains. Rule 426 has a similar import. It is right to generalise that the substance of the 'rules' and the insistence of
the Section contain the command that the Inspector General of Prisons shall post haste, say within 48 hours at least,
receive a report of such an infliction and consider whether it is just and necessary. He should also be ready to
receive complaints by way of appeals about 'irons' from prisoner concerned. A right of appeal or revision from the
action of the Superintendent to the Inspector General of Prisons and quick action by way of review are implicit in
the provision. If there is delay, the negation of good faith, in the sense of absence of due care, is inevitable and the
validity of the order is in peril.
182. Another remedy also may be visualised as feasible. The visitors of jails include senior executive officers of the
Division, Sessions Judges and District Magistrates (see Rule 47). This is ordinarily an All-India pattern. The duties of
official visitors include satisfying themseleves that the provisions of the Prisons Act, rules, regulations, orders and
directions are duly observed. Undoubtedly, the proper adherence to Section 56 and the related rules falls within the
purview of 'Rule' 49. 'Rule' 53 states that all visitors shall have the opportunity of observing the state of jail, its
management and every prisoner confined therein. The visitors, official and non-official, have power to call for and
inspect jail records. 'Rule' 53 and 53B are pregnant provisions. We read humane amplitude into this group of 'rules'
so as to constitutionalise the statutory prescriptions. They spell out a duty on the part of the visitors and the
Inspector General of Prisons, to hear appeals or complaints from the prisoners regarding irons forced on them. The
reasonableness of the restriction being the constitutional badge, the only way we can sustain Section 56 of the Act is
to imply in the broad group of provisions external examinership, immediate review and cutting short of the iron
regime to the briefest spell.
183. A few submissions linking up 'dangerousness' with bar fetters urged by the Additional Solicitor General may
now be considered.
184. The learned Additional Solicitor General urged that there was a built-in guideline for the superintendent's
discretion. Considerations of safety, expressed in paragraph 435 and Section 56, remove the vice of arbitrariness and
unreasonableness. Reference to paragraph 433 was made to make out that only dangerous prisoners were to be
chained in this manner. We cannot lose sight of the fact that a non-convict prisoner is to be regarded differently and
it may even be a misnomer to treat such a remandee as a prisoner. We see a distinction between unconvicted
prisoners and convicted prisoners being dealt with differently. (See paragraph 392 of the Manual). Assuming the
indiscriminate provision in para 399 embracing dangerous prisoners 'whether they are awaiting trial or have been
convicted' to be applicable, we should deal with the two categories differently. Para 399(3) reads :
Special precautions should be taken for the safe custody of dangerous prisoners whether they are awaiting trial or
have been convicted. On being admitted to jail they should be (a) placed in charge of trustworthy warders, (b)
confined in the most secure building available, (c) as far as practicable confined in different barracks or cells each
night, (d) thoroughly searched at least twice daily and occasionally at uncertain hours (the Deputy Superintendent
must search them at least once daily and he must satisfy himself that they are properly searched by a trustworthy
subordinate at other time), (e) fettered if necessary (the special reasons for having recourse to fetters should be fully
recorded in the Superintendent's journal and noted in the prisoner's history ticket). They should not be employed on
any industry affording facilities for escape and should not be entrusted with implements that can be used as
weapons. Warders on taking over charge of such prisoners must satisfy themselves that their fetters are intact and
the iron bars or the gratings of the barracks in which they are confined are secure and all locks, bolts, etc. are in
proper order. They should during their turns of duty frequently satisfy themselves that all such prisoners are in their
palces, should acquaint themselves with their appearance.
185. All these factors focus our attention on the concept of 'dangerousness' as controlling discretionary power and
validate the Section.
186. The learned Additional Solicitor General argued that the expression 'dangerous' was neither vague nor irrational
but vivid and precise, and regulated the discretion of the officer sufficiently to eliminate the vice of arbitrariness. He
cited authorities to which we will presently come but before examining them as validation of incapacitation of risky
prisoners we may as well refer to some aspects of the problem presented by (1) what kind of danger should lead to
incapacitation ? (2) what authority is to make the decision on whether or not that danger is present? (3) On what
basis is that authority to decide who among offenders is dangerous and for how long ?
40
187. Predictions of dangerousness are hazardous. In 1966 the Supreme Court released 967 offenders held in New
York psychiatric institutions beyond the term of their sentences because they were considered dangerous. (They had
been confined without proper procedures). Researchers who followed the subsequent careers of these persons for
four years found that only 2 percent were returned to institutions for the criminally insane; more than half were not
readmitted to any institution. However, the criteria by which these persons had been declared dangerous in the first
place are questionable, and they had been held an average of thirteen years beyond their sentences.
188. The prognosis depends on the peculiarities of the individual and on interpretation by the individuals who study
his case-i.e. on the idiosyncrasies of their (intuitive ?) judgment criteria.
189. All institutions that hold people against their wishes need outside supervision, for, by definition, they lack the
internal checks and balances that make such supervision unnecessary elsewhere. One can check out of a hotel if
abused, but not out of a prison. Prison staffs, which, unlike hotel staffs, can also totally circumscribe the activities of
inmates-have extensive coercive power that must be checked by an outside authority if it is not to be abused. While
sharing the purposes of the penal system, the outside authority should be altogether independent of the
management of the institutions it is to supervise and of its personnel. (The general supervisory power of the
judiciary is too cumbersome and has not proven sufficient anywhere). Such outside authorities exist abroad : In
Great British a 'Board of visitors' deals with violations of prison rules and deals with complaints by prisoners. In
France a Judge de 1' application des peines is presumed to do so, and in Itlay a guidice di sorveglienza.
190. Kent S. Miller writes on the subject of dangerousness Kent S. Miller : Managing Madness, pp. 58, 66, 67, 68 :
... a definitional problem needs to be dealt with. State statutes have been notoriously vague in their references to
dangerousness, in large parts leaving the determination of dangerousness to the whims of the Court and of others
involved in applying the concept.
Professionals concerned with prediction of violent behavior had differed in their judgments. Writes Miller :
Considerable attention has been given to the role of psychological tests in predicting dangerous behavior, and there
is a wide range of opinion as to their value.
Thus far no structured or projective test scale has been derived which, when used alone, will predict violence in the
individual case in a satisfactory manner. Indeed, none has been developed which will adequately post dict let alone
pre dict, violent behavior. However, our review of the literature suggests that it might be possible to demonstrate
that violence could be predicted using psychological tests if programs of research were undertaken that were more
sophisticated than the studies done to date.
Courts and community agencies must muddle through these difficulties and deal with such problems in the best way
they can. The fact that we have difficulty defining the predicting dangerous behavior does not mean that members
of the community can disregard such patterns of behavior. And the fact that psychiatrists do not agree on the nature
and scope of mental illness does not imply that the law can be oblivious to such matters.
... But we are on dangerous ground when deprivation of liberty occurs under such conditions.
... The practice has been to markedly overpredict. In addition, the courts and mental health professionals involved
have systematically ignored statutory requirements relating to dangerousness and mental illness....
... In balancing the interest of the state, against the loss of liberty and rights of the idividual, a prediction of
dangerous behavior must have a high level of probability, a condition which currently does not exist), and the harm
to be presented should be considerable.)
191. If our law were to reflect a higher respect for life, restraint of the person is justified only if the potential harm is
considerable. Miller's conclusions are meaningful and relevant :
If confinement takes place, there should be a short-term mandatory review.
41
... the basis for police power commitment should be physical violence or potential physical violence which is
imminent, constituting a 'clear and present' danger and based on testimony related to actual conduct. Any such
commitment should be subject to mandatory review within two weeks.
... Restraint should be time-limited, with a maximum of five to seven days.
192. The inference is inevitable that management of dangerousness in the prison setting is often overkill and
underscientific. The irrationality of bar fetters based on subjective judgment by men without psychiatric training and
humane feeling makes every prisoner 'dangerous'. Dr. Bhattacharya writes Dr. B.K. Bhattacharya : Prisons p. 116 :
In the Delhi jail particularly in 1949 one came across an astonishing sight of numerous under-trial prisoners in
fetters, merely on the ground that they had more than one case pending against them. This was noticed, though in a
far less degree, in Patiala and in Jaipur. Numerous transportation prisoners were secured behind bars in cells, yet
they were put in bar-fetters, not to mention the escapes and condemned prisoners. In Delhi jail one gained an
impression that bar-fetters were the rule of the day.
The key jurisdictional preconditions are :
(i) absolute necessity for fetters;
(ii) special reasons why no other alternative but fetters will alone secure custodial assurance;
(iii) record of those reasons contemporaneously in extenso;
(iv) such record should not merely be full but be documented both in the journal of the Superintendent and the
history ticket of the prisoner. This latter should be in the language of the prisoner so that he may have
communication and recourse to redress.
(v) the basic condition of dangerousness must be well grounded and recorded;
(vi) all these are conditions precedent to 'irons' save in a great emergency;
(vii) before preventive or punitive irons (both are inflictions of bodily pain) natural justice in its minimal form shall
be complied with (both audi alteram and the nemo judex rules).
(viii) the fetters shall be removed at the earliest opportunity. That is to say, even if some risk has to be taken it shall
be removed unless compulsive considerations continue it for necessities of safety;
(ix) there shall be a daily review of the absolute need for the fetters, none being easily conceivable for nocturnal
manacles;
(x) if it is found that the fetters must continue beyond a day it shall be held illegal unless an outside agency like the
District Magistrate or Sessions Judge, on materials placed, directs its continuance.
193. Although numerically large, these requirements are reasonably practical and reconcile security with humanity.
Arguments to the contrary are based on alarmist a priori and may render Section 56 ultra vires. Having regard to the
penumbral zone, fraught with potential for tension, tantrums and illicit violence and malpractice, it is healthy to
organize a prison ombudsman for each State. Sex is an irrepressible urge which is forced down by long prison terms
and homosexuality is of hidden prevalence in these dark campuses. Liberal paroles, open jail's, frequency of familial
meetings, location of convicts in jails nearest their homes tend to release stress, relieve distress and insure security
better than flagellation and fetters.
194. The upshot of the discussion is that the shackles on Sobraj shall be shaken off right away and shall not be re-
worn without strict adherence to the injunctions spelt out. Active prison justice bids farewell to the bloodshot
heritage of fierce torture of flesh and spirit, and liabilitative processes reincarnate as a healing hope for the tense,
warped and morbid minds behind bars. This correctional orientation is a constitutional implication of social justice
whose index finger points to Article 14 (anti-arbitrariness), Article 19 (anti-reasonableness) and Article 21 (sensitized
processual humanism).
42
195. Prison reform is burgeoning in the administrative thinking and, hopefully one may leave it to legislative and
executive effort to concretise, with feeling for 'insiders' and concern for societal protection, with accent on
perimeter security and correctional strategy, the project of prison reform.
196. Presumptive innocence blushes when ad libitum discretion is vested in the jailor to put preventive fetters
unfettered by the annoying rules of natural justice. The prisons become houses of horror if hundreds of undertrials
and even minors have to suffer, on grounds of dangerousness, this disciplinary distress in one jail. That Prison
Superintendent surely needs his discretion to be disciplined, being otherwise dangerous. Since constitutionality
focusses on rationality and realistic reasonableness these forensic dissections go to the heart of the issue.
197. I hold that bar fetters are a barbarity generally and, like whipping, must vanish. Civilised consciousness is
hostile to torture within the walled campus. We hold that solitary confinement, cellular segregation and marginally
modified editions of the same process are inhuman and irrational. More dangerous are these expedients when
imposed by the untuned and untrained power of a jail superior who has as part of his professional equipment, no
course in human psychology, stressology or physiology, who has to depend on no medical or psychiatric
examination, prior to infliction of irons or solitary, who has no obligation to hear the victim before harming him,
whose 'reasons' are in English on the history-tickets and therefore unknowable and in the Journal to which the
prisoner has no access. The revisory power of the Inspector General of Prisons is illusory when the prisoner does
not know of his right to seek revision and the Inspector General has no duty to visit the solitary or 'lettered'
creatures or to examine every case of such infliction. Jail visitors have no powers to cancel the superintendent's
orders nor obligation to hold enquiry save to pity and to make remarks. Periodical parades of prisoners, when the
visitors or dignitaries call for a turn-out, prove a circus in a zoo from a practical standpoint or/and journal entries
and history-tickets a voodoo according to rule, the key point to be noted being that after this public exhibition
within the prison, the complaining prisoners are marked men at the iron mercy of the hierarchy, there being no
active legal' aid project busy within the prison. This ferocious rule of law, rule and nude, cannot be sustained as
anything but arbitrary, unreasonable and procedurally heartless. The peril to its life from the lethal stroke of Articles
14, 19 and 21 read with 13 needs no far-fetched argument. The abstruse search for curative guidelines in such words
as 'dangerous' and 'necessary' forgetting the totalitarian backdrop of stone walls and iron bars, is bidding farewell to
raw reality and embracing verbal marga. The law is not abracadabra but at once pragmatic and astute and does not
surrender its power before scary exaggerations of security by prison bosses. Alternatives to 'solitary' and 'irons' are
available to prison technology, give the will, except where indifference, incompetence and unimaginativeness hold
prison authorities prisoner. Social justice cannot sleep if the Constitution hangs limp where its consumers most need
its humanism.
Access and the Law
198. An allegedly unconscionable action of Government which disables men in detention from seeking judicial
remedies against State torture was brought to our notice. I would have left the matter as an unhappy aberration of
governmental functioning but the fundamental character of the imputation leaves us no option but to drive home a
basic underpinning of our government of laws. Democratic legality stands stultified if the Corpus Juris is not within
the actual ken or reasonable reach of the citizen; for it is a travesty of the rule of law if legislation, primary or
subordinate, is not available in published form or is beyond the purchase of the average affected Indian. To come to
the point, we were told that the Punjab Jail Manual was not made available to the prisoners and, indeed, was priced
so high that few could buy. The copy of the Manual handed over to us is seen to be officially published in 1975 and
priced at Rs. 260.30, although it contains merely a collection of the bare text of certain statutes, rules and
instructions running into 469 printed pages. If what was mentioned at the Bar were true that the Manual as sold
before at around Rs. 20/- but as suddenly marked up more than ten times the former price solely to deter people
from coming to know the prison laws, then the rule of law were surely scandalized. It was suggested that by this
means the indigent prisoner could be priced out of his precious liberties because he could not challenge
incarceratory injury without precise awareness of the relevant provisions of law beyond his means. Were this
motivation true the seriousness of the impropriety deepens. But we have not been taken into these vicious coils and
keep out of that probe. However, let us be clear. Access to law is fundamental to freedom in a government of laws.
If the rule of law is basic to our constitutional order, there is a double imperative implied by it-on the citizen to
know and on the State to make known. Fundamental rights cease to be viable if laws calculated to canalise or
constrict their sweep are withheld from public access; and the freedoms under Article 19(1) cannot be restricted by
hidden on 'low visibility' rules beyond discovery by fair search. The restriction must be reasonable under Article
19(2) to (6) and how can any normative prescription be reasonable if access to it is not available at a fair price or by
rational search ? Likewise, under Article 21, procedural fairness is the badge of constitutionality if life and liberty are
to be leashed or extinguished; and how can it be fair to bind a man by normative processes collected in books too
expensive to buy ? The baffling proliferation and frequent modification of subordinate legisation and their
43
intricacies and inaccessibility are too disturbing to participative legality so vital to democracy, to leave us in
constitutional quiet. Arcane law is as bad as lawless fiat, a caveat the administration will hopefully heed.
199. One of the paramount requirements of valid law is that it must be within the cognizance of the community if a
competent search for it were made. It is worthwhile recalling the observations of Bose J. made in a different context
but has a philosophic import :
Natural justice requires that before a law can become operative it must be promulgated or published. It must be
broadcast in some recognizable way so that all men know what it is;... The thought that a decision reached in the
secret recess of a chamber to which the public have no access and of which they can normally know nothing, can
nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is
abhorrent to civilized men. It shocks conscience MANU/SC/0014/1951 : [1952]1SCR110 .
Legislative tyranny may be unconstitutional if the State by devious methods like pricing legal publications
monopolised by government too high denies the equal protection of the laws and imposes unreasonable restrictions
on exercise of fundamental rights. The cult of the occult is not the rule of law even as access to law is integral to our
system. The pregnant import of what I have said will, I hope, be not lost on the executive instrumentality of the
State.
Contemporary danger
200. We must have a sense of the prevalence of primitive cruelty haunting our prison cells and what is more
alarming, of the increasing versatility of prison torture in countries civilised and other. Our country is no island and
courts must be aware and beware. While I am far from inclined to exaggerate possibilities of torture in the silent
zone called prison, we are not disposed to dismiss international trends collected in a recent article entitled "Minds
behind bars" Listner, Dec. 1977 issue:
The technology of torture all over the world is growing ever more sophisticated-new devices can destroy a prisoner's
will in a matter of hours-but leave no visible marks or signs of brutality. And government-inflicted terror has
evolved its own dark sub-culture. All over the world, torturers seem to feel a desire to appear respectable to their
victims.... There is an endlessly inventive list of new methods of inflicting pain and suffering on fellow human
beings that quickly cross continents and ideological barriers through some kind of international secret-police
network. The 'wet submarine' means near suffocations of a prisoner by immersing him in water, or, frequently, in
urine; the 'dry submarine' is the same thing, except that a plastic bag is tied over the victim's head to deprive him of
oxygen. Another common technique, 'the telephone', consists of delivering sharp blows in both ears simultaneously,
which often causes excruciatingly painful rupture of the ear drums. 'The helmet' is put over the head of a torture
victim to magnify his own screams. In 'the hook' the victim is hoisted off the ground by his hands, which are tied
behind his back in such a way that the stretching of the nerves often causes paralysis of the arms. 'People on the
hook' says one Uruguyan torture victim, 'cannot take a deep breath or hardly any breath. They just moan; it's a
dreadful, almost inhuman noise.'
And torturers all over the world use the language of grisly disinformation to describe their work. In Uganda Amin's
secret police are known as the 'State Research Bureau', and the main torture houses are called 'Public Safety Units'.
In Brazil, torturers call their sessions 'spiritual sessions' and in Chile, torturers refer to the Villa Grimaldi, their place
of work, as the Palacio de la Risa-the Palace of Laughter. In Iran, Otaq-e-Tamehiyat, 'the room where you make
people walk', meant the blood stained chamber where prisoner's were forced to walk after torture to help their
blood to circulate.
... What is encouraging in all this dark picture is that we feel that public opinion in several countries is much more
aware of our general line than before. And that is positive. I think, in the long run, governments can't ignore that.
We are also encouraged by the fact that, today, human rights are discussed between governments-they are now on
the international political agenda. But, in the end, what matters is the pain and suffering the individual endures in
police station or cell.
201. I imply nothing from the quote but it deepens our awareness in approaching our task.
The Conclusion
44
202. Now that the dilatory discussion overlapping at times, has come to an end, I may concretise the conclusions in
both the cases, lest diffusion should leave the decision vague or with ragged edges. They flow from the elevating
observations of Chandrachud, J. (as he then was) in Bhuvan Mohan Bhuvan Mohan Patnaik v. State of A.B.
MANU/SC/0038/1974 : 1975CriLJ556 , amplified by humanity :
We cannot do better than say that the directive principle contained in Article 42 of the Constitution that 'The State
shall make provision for securing just and humane conditions of work' may benevolently be extended to living
conditions in jails. There are subtle forms of punishment to which convicts and undertrial prisoners are sometimes
subjected but it must be realised that these barbarous relics of a bygone era offend against the letter and spirit of our
Constitution.
The correction and direction indicated by the Constitution have been broadly spelt out by me so that progressive
prison reforms may move towards 'fresh woods and pastures new'.
1. I uphold the vires of Section 30 and Section 56 of the Prisons Act, as humanistically read by interpretation. These
and other provisions, being somewhat out of tune with current penological values and mindless to human-rights
moorings, will, I hope, be revised by fresh legislation. It is a pity that Prison Manuals are mostly callous colonial
compilations and even their copies are beyond prisoners' ken. Punishments, in civilised societies, must not degrade
human dignity or wound flesh and spirit. The cardinal sentencing goal is correctional; changing the consciousness of
the criminal to ensure social defence. Where prison treatment abandons the reformatory purpose and practises
dehumanizing techniques it is wasteful, counter-productive and irrational, hovering on the hostile brink of
unreasonableness (Article 19).' Nor can torture tactics jump the constitutional gauntlet by wearing a 'preventive'
purpose. Naturally, inhumanity, masked as security, is outlawed beyond backdoor entry, because what is banned is
brutality, be its necessity punitive or prophylactic.
2. I hold that solitary confinement, even if mollified and modified marginally, is not sanctioned by Section 30 for
prisoners 'under sentence of death'. But it is legal under that Section to separate such sentenceess from the rest of
the prison community during hours when prisoners are generally locked in. I also uphold the special watch, day and
night, of such sentenceess by guards. Infraction of privacy may be inevitable, but guards must concede minimum
human privacy in practice.
3. By necessary implication, prisoners 'under sentence of death' shall not be denied any of the community amenities,
including games, newspapers, books, moving around and meeting prisoners and visitors, subject to reasonable
regulation of prison management. Be it noted that Section 30 is no substitute for sentence of imprisonment and
merely prescribes the manner of organising safe jail custody authorised by Section 366 of the Cr.P.C.
4. More importantly, if the prisoner desires loneliness for reflection and remorse, for prayers and making peace with
his maker, or opportunities for meeting family or friends, such facilities shall be liberally granted, having regard to
the stressfull spell of terrestrial farewell his soul may be passing through the compassion society owes to him whose
life it takes.
5. The crucial holding under Section 30(2) is that a person is not 'under sentence of death', even if the sessions court
has sentenced him to death subject to confirmation by the High Court. He is not 'under sentence of death' even if
the High Court imposes, by confirmation or fresh appellate infliction, death penalty, 50 long as an appeal to the
Supreme Court is likely to be or has been moved or is pending. Even if this Court has awarded capital sentence,
Section 30 does not cover him so long as his petition for mercy to the Governor and/or to the President permitted
by the Constitution, Code and Prison Rules, has not been disposed. Of course, once rejected by the Governor and
the President, and on further application there is no stay of execution by the authorities, he is 'under sentence of
death', even if he goes on making further mercy petitions. During that interregnum he attracts the custodial
segregation specified in Section 30(2), subject to the ameliorative meaning assigned to the provision. To be 'under
sentence of death' means 'to be under a finally executable death sentence'.
6. I do not rule out further restraint on such a condemned prisoner if clear and present danger of violence or likely
violation of custody is, for good reasons, made out, with due regard to the rules of fairplay implied in natural justice.
Minimal hearing shall be accorded to the affected if he is subjected to further severity.
1. Section 56 must be tamed and trimmed by the rule of law and shall not turn dangerous by making the Prison
'brass' an imperium in imperio. The Superintendent's power shall be pruned and his discretion bridled in the manner
indicated.
45
2. Under-trials shall be deemed to be in custody, but not undergoing punitive imprisonment. So much so, they shall
be accorded more relaxed conditions than convicts.
3. Fetters, especially bar fetters, shall be shunned as violative of human dignity, within and without prisons. The
indiscriminate resort to handcuffs when accused persons are taken to and from court and the expedient of forcing
irons on prison inmates are illegal and shall be stopped forthwith save in a small category of cases dealt with next
below. Reckless handcuffing and chaining in public degrades, puts to shame finer sensibilities and is a slur on our
culture.
4. Where an undertrial has a credible tendency for violence and escape a humanely graduated degree of 'iron'
restraint is permissible if only if-other disciplinary alternatives are unworkable. The burden of proof of the ground is
on the custodian. And if he fails, he will be liable in law.
5. The 'iron' regimen shall in no case go beyond the intervals, conditions and maxima laid down for punitive 'irons'.
They shall be for short spells, light and never applied if sores exist.
6. The discretion to impose 'irons' is subject to quasi-judicial oversight, even if purportedly imposed for reasons of
security.
7. A previous hearing, minimal may be, shall be afforded to the victims. In exceptional cases, the hearing may be
soon after. The rule in Gill's case and Maneka Gandhi's case gives the guidelines.
8. The grounds for 'fetters' shall be given to the victim. And when the decision to fetter is made, the reasons shall be
recorded in the journal and in the history ticket of the prisoner in the State language. If he is a stranger to that
language it shall be communicated to him, as far as possible, in his language. This applies to cases as much of prison
punishment as of 'safety' fetters.
9. Absent provision for independent review of preventive and punitive action, for discipline or security, such action
shall be invalid as arbitrary and unfair and unreasonable. The prison officials will then be liable civilly and criminally
for hurt to the person of the prisoner. The State will urgently set up or strengthen the necessary infra-structure and
process in this behalf-it already exists in embryo in the Act.
10. Legal aid shall be given to prisoners to seek justice from prison authorities, and, if need be, to challenge the
decision in court-in cases where they are too poor to secure on their own. If lawyer's services are not given, the
decisional process becomes unfair and unreasonable, especially because the rule of law perishes for a disabled
prisoner if counsel is unapproachable and beyond purchase. By and large, prisoners are poor, lacking legal literacy,
under the trembling control of the jailor, at his mercy as it were, and unable to meet relations or friends to take legal
action. Where a remedy is all but dead the right lives only in print. Article 39A is relevant in the context. Article 19
will be violated in such a case as the process will be unreasonable. Article 21 will be infringed since the procedure is
unfair and is arbitrary. In Maneka Gandhi the rule has been stated beyond mistake.
11. No 'fetters' shall continue beyond day time as nocturnal fetters on locked-in detenus are ordinarily uncalled for,
viewed from considerations of safety.
12. The prolonged continuance of 'irons', as a punitive or preventive step, shall be subject to previous approval by
an external examiner like a Chief Judicial Magistrate or Sessions Judge who shall briefly hear the victim and record
reasons. They are ex-officio visitors of most central prisons.
13. The Inspector General of Prisons shall, with quick despatch consider revision petitions by fettered prisoners and
direct the continuance or discontinuation of the irons. In the absence of such prompt decision, the fetters shall be
deemed to have been negatived and shall be removed.
203. Such meticulous clarification has become necessary only because the prison practices have hardly inspired
confidence and the subject is human rights. Because prison officials must be responsible for the security of the
prison and the safety of its population, they must have a wide discretion in promulgating rules to govern the prison
population and in imposing disciplinary sanctions for their violation. But any humanist-jurist will be sceptic like the
American Judges who in William King Jackson v. D.E. Bishop Federal Reporter, 2nd Series, Vol 404, p. 571
observed :
46
(1) We are not convinced that any rule or regulation as to the use of the strap, however seriously or sincerely
conceived and drawn, will successfully prevent abuse. The present record discloses misinterpretation even of the
newly adopted....
(2) Rules in this area are seen often to go unobserved....
(3) Regulations are easily circumvented....
(4) Corporal punishment is easily subject to abuse in the hands of the sadistic and the unscrupulous.
(5) Where power to punish is granted to persons in lower levels of administrative authority, there is an inherent and
natural difficulty in enforcing the limitations of that power.
204. We find many objectionable survivals in the Prison Manual like whipping and allergy to 'Gandhi Cap'. Better
classification for 'Europeans' is still in the book! I hope that Prison Reform will receive prompt attention as the
higher political echelons in the country know the need and we may not be called upon to pronounce on the
inalienable minima of human rights that our constitutional order holds dear. It is noteworthy that, as pointed out in
Furman v. Georgia 33 L. Ed. 2d. 346 with reference to death sentence, by Justices Douglas and Marshall, the more
painful prison cruelties are often imposed on the socio-economic weak and the militant minorities. Our prisons,
both in the matter of classification for treatment and in the matter of preventive or punitive imposts, face the same
criticism. To thoughtful sociologists it seems evident that prison severities are visited mostly on agitators, dissenters,
protesters, proletarians and weaker sections. Moreover, punitive 'vested interest' sometimes wears 'preventive' veils,
when challenged and we cannot wish away discretionary injustice by burying our heads in the sands of incredible
credulity. Courts must be astute enough to end these 'crimes' against criminals by correctional interpretation.
225. 'Freedom behind bars' is part of our constitutional tryst and the index of our collective consciousness. That the
flower of human divinity never fades, is part of our cultural heritage. Bonded labour, cellular solitary confinement,
corporal punishments, status-based elitist classification and the like deserve to be sentenced to transportation from
prisons and humanising principles granted visa into prison campuses. In short, transformation of consciousness is
the surest 'security' measure to antidote social entropy. That is the key to human development-rights and
responsibilities-within and without prisons.
226. Positive experiments in re-humanization-meditation, music, arts of self-expression, games, useful work with
wages, prison festivals, sramdan and service-oriented activities, visits by and to families, even participative prison
projects and controlled community life, are among the re-humanization strategies which need consideration. Social
justice, in the prison context, has a functional versatility hardly explored.
227. The roots of our Constitution lie deep in the finer spiritual sources of social justice, beyond the melting pot of
bad politicking, feudal crudities and sublimated sadism, sustaining itself by profound faith in Man and his latent
divinity and the confidence that 'you can accomplish by kindness what you cannot do by force' and so it is that the
Prisons Act provisions and the Jail Manual itself must be revised to reflect this deeper meaning in the behavioral
norms, correctional attitudes and humane orientation for the prison staff and prisoners alike. We cannot become
misanthropes and abandon values, scared by the offchance of some stray desperate character. Then amputation of
limbs of unruly suspects may be surer security measure and corporal punishment may have a field day atfer a long
holiday. The essence of my opinion in both these cases is the infusion of the higher consciousness of the
Constitution into the stones of law which make the prison houses.
228. The winds of change must blow into our carcers and self-expression and self-respect and self-realization
creatively substituted for the dehumanising remedies and 'wild life' techniques still current in the jail armoury. A few
prison villains-they exist-shall not make martyrs of the humane many; and even from these few, trust slowly begets
trust. Sarvodaya and antyodaya have criminological dimensions which our social justice awareness must apprehend
and actualize. I justify this observation by reference to the noble but inchoate experiment (or unnoticed epic)
whereby Shri Jai Prakash Narain redemptively brought murderously dangerous dacoits of Chambal Valley into
prison to turn a responsible page in their life in and out of jail. The rehabilitative follow-up was, perhaps, a flop.
229. In short, the technology of raising the level of awareness, not generating hatred by repression, shows the way to
making prison atmosphere safe and social defence secure. Criminology and consciousness are partners in
community protection.
47
The Final Directions
230. I hold that even though Section 30 is intra vires, Batra shall not be kept under constant, guard in a cell, all by
himself, unless he seeks such an exclusive and lonely life. If he loses all along the way right to the summit court and
the top executive, then and only then, shall he be kept apart from the other prisoners under the constant vigil of an
armed guard. Of course, if proven grounds warrant disciplinary segregation, it is permissible, given fair hearing and
review.
231. The petitioner, Sobhraj, cannot be granted the relief of striking down Section 56 or related prison rules but he
succeeds, in substance, with regard to his grievance of bar fetters. Such fetters shall forthwith be removed and he
will be allowed the freedom of undertrials inside the jail, including locomotion-not if he has already been convicted.
In the eventuality of display of violence or escape attempts or creds evidence bringing home such a potential
adventure by him, he may be kept under restraint. Irons shall not be forced on him unless the situation is one of
emergency leaving no other option and in any case that torture shall not be applied without compliance with natural
justice and other limitations indicated in the judgment.
232. Prison laws, now in bad shape, need rehabilitation; prison staff, soaked in the Raj past, need reorientation;
prison house and practices a hangover of the die-hard retributive ethos, reconstruction; prisoners, those noiseless;
voiceless human heaps, cry for therapeutic technology; and prison justice, after long jurisprudential gestation, must
now be re-born through judicial midwifery, if need be. No longer can the Constitution be curtained off from the
incarcerated community since pervasive social justice is a fighting faith with Indian humanity. I, hopefully, alert the
nation and, for the nonce, leave follow-up action to the Administration with the note that stone walls and iron bars
do not ensure a people's progress and revolutionary history teaches that tense bastilles are brittle before human
upsurges and many tenants of iron cells are sensitive harbingers of Tomorrow-many a Socrates, Shri Aurobindo,
Tilak, Thoreau, Bhagat Singh, Gandhi! So it is that there is urgency for bridging the human gap between prison
praxis and prison justice; in one sense, it is a battle of the tenses and in an another, an imperative of social justice.
233. If I may end with an answer to the question posed at the beginning, so long as constitutional guarantees are
non-negotiable, human rights, entrenched in the National Charter, shall not be held hostages by Authority.
Emergency, exigency, dangerousness, discipline, security and autonomy are theoretically palatable expressions; but,
in a world where prison houses are laboratories of torture or warehouses where human commodities are sadistically
kept and the spectrum of inmates range from drift-wood juveniles to heroic dissenters, courts-and other
constitutional instrumentalities-should not consent to make jails judgeproof to tearful injustice. Until current prison
pathology is cured and prison justice restored, stone walls and iron bars will not solve the crime crisis confronting
society today.
234. I am aware that a splendid condensation of the answers to the core questions has been presented by my learned
brother Desai, J and I endorse the conclusion. But when the issue is grave and the nation, now and again, groans
because prisons breed horror and terror and bruited reforms remain a teasing illusion and promise of unreality,
brevity loses its lure for me; and going it alone to tell the country plain truths becomes unobviable. If Parliament and
Government do not heed to-day, the next day comes. And, in an appeal to Human Tomorrow, 'if none responds to
your call, walk alone, walk alone !' Judicial power is a humane trust-'to drive the blade a little forward in your time,
and to feel that somewhere among these millions you have left a little justice or happiness or prosperity, a sense of
manliness or moral dignity, a spring of patriotism, a dawn of intellectual enlightenment or a stirring of duty where it
did not exist before'-that is enough.
235. The petitions succeed in principle but in view of the ad interim orders which have been carried out and the new
meaning read into the relevant provisions of the Act the prayer to strike down becomes otiose. Batra and Sobraj
have lost the battle in part but Von the war in full.
236. I agree that the petitions be dismissed.
Desai, J.
237. These two petitions under Article 32 of the Constitution by two internees confined in Tihar Central Jail
challenge the vires of Sections 30 and 56 of the Prisons Act. Sunil Batra, a convict under sentence of death
challenges his solitary confinement sought to be supported by the provisions of Section 30 of the Prisons Act (for
short the Act); Charles Sobhraj a French national and then an under trial prisoner challenges the action of the
Superintendent of Jail putting him into bar fetters for an unusually long period commencing from the date of
48
incarceration on 6th July 1976 till this Court intervented by an interim order on 24th February 1978. Such a
gruesome and hair-raising picture was pointed at some stage of hearing that Chief Justice M.H. Beg, V.R. Krishna
Lyer, J and P.S. Kailasam J who were then seized of the petitions visited the Tihar Central Jail on 23rd January 1978.
Their notes of inspection form part of the record.
238. There are certain broad submissions common to both the petitions and they may first be dealt before turning
to specific contentions in each petition. It is no more open to debate that convicts are not wholly denuded of their
fundamental rights. No iron curtain can be drawn between the prisoner and the Constitution. Prisoners are entitled
to all constitutional rights unless their liberty has been constitutionally curtailed (see Procunier v. Martinex) 40 L.
Ed. 2d. 224 at 242. However, a prisioner's liberty is in the very nature of things circumscribed by the very fact of his
confinement. His interest in the limited liberty left to him is then all the more substantial. Conviction for crime does
not reduce the person into a nonperson whose rights are subject to the whim of the prison administration and,
therefore, the imposition of any major punishment within the prison system is conditional upon the observance of
procedural safeguards (see Wolff v. McDonnell) 41 L. Ed. 935. By the very fact of the incarceration prisoners are
not in a position to enjoy the full panoply of fundamental rights because these very rights are subject to restrictions
imposed by the nature of the regime to which they have been lawfully committed. In D. Bhuvan Mohan Patnaik and
Ors. v. State of Andhra Pradesh and Ors. MANU/SC/0038/1974 : 1975CriLJ556 one of us, Chandrachud J.,
observed :-
Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise
possess. A compulsion under the authority of law, following upon a conviction, to live in a prison-house entails by
its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India
or the right to "practice" a profession. A man of profession would thus stand stripped of his right to hold
consultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to
acquire, hold and dispose of property for the exercise of which incarceration can be no impediment. Likewise, even
a convict is entitled to the precious right guaranteed by Article 21 of the Constitution that he shall not be deprived
of his life or personal liberty except according to procedure established by law.
Undoubtedly, lawful incarceration brings about necessary withdrawal or limitation of some of these fundamental
rights, the retraction being justified by the considerations underlying the penal system (see Poll v. Procunier) 41 L.
Ed. 2d. 495 at 501
239. Consciously and deliberately we must focus our attention, while examining the challenge, to one fundamental
fact that we are required to examine the validity of a pre Constitution statute in the context of the modern reformist
theory of punishment, jail being treated as a correctional institution. But the necessary concomitants of the fact of
incarceration, the security of the prison and safety of the prisoner, are to be kept in the forefront. Not that the court
would ever abdicate its constitutional responsibility to delineate and protect the fundamental rights but it must
simultaneously put in balance the twin objects underlying punitive or preventive incarceration. The Court need not
adopt a "hands off" attitude as has been occasionally done by Federal Courts in the United States in regard to the
problem of prison administration. It is all the more so because a convict is in prison under the order and direction
of the Court. The Court has, therefore, to strike a just balance between the dehumanising prison atmosphere and
the preservation of internal order and discipline, the maintenance of institutional security against escape, and the
rehabilitation of the prisoners. Section 30 of the Prisons Act reads as under :-
30. (1) Every prisoner under sentence of death shall, immediately on his arrival in the prison after sentence, be
searched by, or by order of, the Jailer and all articles shall be taken from him which the Jailer deems it dangerous or
inexpedient to leave in his possession.
(2) Every such prisoner shall be confined in a cell apart from all other prisoners, and shall be placed by day and by
night under the charge of a guard.
240. The gravamen of the argument is that Sub-section (2) of Section 30 of the Act does not authorise the prison
authorities in the garb of securing a prisioner under sentence of death, to confine him in a cell apart from other
prisoners by imposing solitary confinement upon him. It is alleged that since the date of his conviction by the
Sessions Judge awarding him capital punishment, Batra is kept in solitary confinement.
241. Mr. Chitale, who gave us competent assistance as an amicus curiae for Batra, after drawing our attention to the
development of psychopathological syndrome in prisoners under solitary confinement for an unlimited period,
urged that Section 30 of the Act does not empower the prison authorities to place the prisoner in solitary
confinement. It was said that if Section 46(8) and (10) empower prison authorities to impose separate or cellular
49
confinement as a punishment for jail offences, solitary confinement being more tormenting in effect, cannot be
imposed on the prisoner, more so because it is by itself a punishment that can be awarded under Sections 73 and 74
of the Indian Penal Code and that too by a Court. The jail authority cannot arrogate to itself the power to impose
such a punishment under the garb of giving effect to Sub-section (2) of Section 30. In any event it was contended
that if Sub-section (2) of Section 30 of the Act is to be construed to mean that it authorises prison authorities to
impose solitary confinement it is violative of Articles 14, 19, 20 and 21 of the Constitution.
242. It may be conceded that solitary confinement has a degrading and dehumanising effect on prisioners. Constant
and unrelieved isolation of a prisoner is so unnatural that it may breed insanity. Social isolation represents the most
destructive abnormal environment. Results of long solitary confinement are disastrous to the physical and mental
health of those subjected to it. It is abolished in U.K. but it is still retained in U.S.A.
243. If Sub-section (2) of Section 30 enables the prison authority to impose solitary confinement on a prisoner
under sentence of death not as a consequence of violation of prison discipline but on the sole and solitary ground
that the prisoner is a prisoner under sentence of death, the provision contained in Sub-section (2) would offend
Article 20 in the first place as also Articles 14 and 19. If by imposing solitary confinement there is total deprivation
of comaraderie amongst coprisoners, co-mingling and talking and being talked to, it would offend Article 21. The
learned Additional Solicitor General while not adopting any dogmatic position, urged that it is not the contention of
the respondents that Sub-section (2) empowers the authority to impose solitary confinement, but it merely permits
statutory segregation for safety of the prisoner in prisoners' own interest and instead of striking down the provision
we should adopt the course of so reading down the section as to denude it of its ugly inhuman features.
244. It must at once be made clear that Sub-section (2) of Section 30 does not empower the prison authority to
impose solitary confinement, in the sense in which that word is understood in para 510 of Jail Manual, upon a
prisoner under sentence of death. Sections 73 and 74 of the Indian Penal Code leave no room for doubt that solitary
confinement is by itself a substantive punishment which can be imposed by a Court of law. It cannot be left to the
whim and caprice of prison authorities. The limit of solitary confinement that can be imposed under Court's order is
strictly prescribed and that provides internal evidence of its abnormal effect on the subject. Solitary confinement as
substantive punishment cannot in any case exceed 14 days at a time with intervals of not less duration than such
periods and further, it cannot be imposed until the medical officer certifies on the history ticket that the prisoner is
fit to undergo it. Every prisoner while undergoing solitary confinement has to be visited daily by the medical officer,
and when such confinement is for a period of three months it cannot exceed seven days in any one month of the
whole imprisonment awarded, with intervals between the periods of solitary confinement of not less duration than
such periods (see Section 74, IPC). The Court cannot award more than three months' solitary confinement even if
the total term of imprisonment exceeds one year (see Section 73, IPC). This is internal evidence, if any is necessary,
showing the gruesome character of solitary confinement. It is so revolting to the modern sociologist and law
reformist that the Law Commission in its 42nd Report, page 78, recommended that the punishment of solitary
confinement is out of tune with modern thinking and should not find a place in the Penal Code as a punishment to
be ordered by any criminal court, even though it may be necessary as a measure of jail discipline Sub-section (2) of
Section 30 does not purport to provide a punishment for a breach of Jail discipline. Prison offences are set out in
Section 45. Section 46 confers power on the Superintendent to question any person alleged to have committed a jail
offence and punish him for such offence. The relevant sub-clauses for the present purpose are Sub-clauses (8) and
(10) which read as under :
46. The Superintendent may examine any person touching any such offence, and determine thereupon, and punish
such offence by-
xxxxx
(8) separate confinement for any period not exceeding three months;
Explanation-Separate confinement means such confinement with or without labour as secludes a prisoner from
communication with, but not from sight of, other prisoners, and allows him not less than one hour's exercise per
diem and to have his meals in association with one or more other prisoners;
xxxxx
(10) cellular confinement for any period not exceeding fourteen days :
50
Provided that such restriction of diet shall in no case be applied interval of not less duration than such period must
elapse before the prisoner is again sentenced to cellular or solitary confinement;
Explanation-Cellular confinement means such confinement with or without labour as entirely secludes a prisoner
from communication with, but not from sight of, other prisoners.
245. The explanation to Sub-clause (8) makes it clear that he is not wholly segregated from other prisoners in that he
is not removed from the sight of other prisoners and he is entitled to have his meals in association with one or more
other prisoners. Even such separate confinement cannot exceed three months. Cellular confinement secludes a
prisoner from communication with other prisoners but not from the sight of other prisoners. However, para 847 of
the Punjab Jail Manual and the provisions which follow, which prescribe detailed instructions as to how a
condemned prisoner is to be kept, if literally enforced, would keep such prisoner totally out of bounds, i.e. beyond
sight and sound. Neither separate confinement nor cellular confinement would be as tortuous or horrendus as
confinement of a condemned prisoner. Sub-section (2) of Section 30 merely provides for confinement of a prisoner
under sentence of death in a cell apart from other prisoners and he is to be placed by day and night under the charge
of a guard. Such confinement can neither be cellular confinement nor separate confinement and in any event it
cannot be solitary confinement. In our opinion, Sub-section (2) of Section 30 does not empower the jail authorities
in the garb of confining a prisoner under sentence of death, in a cell apart from all other prisoners, to impose
solitary confinement on him. Even jail discipline inhibits solitary confinement as a measure of jail punishment. It
completely 'negatives any suggestion that because a prisoner is under sentence of death therefore, and by reason of
that consideration alone, the jail authorities can impose upon him additional and separate punishment of solitary
confinement. They have no power to add to the punishment imposed by the Court which additional punishment
could have been imposed by the Court itself but has in fact been not so imposed. Upon a true construction, Sub-
section (2) of Section 30 does not empower a prison authority to impose solitary confinement upon a prisoner
under sentence of death.
246. If Section 30(2) does not empower the jail authority to keep a condemned prisoner in solitary confinement, the
expression "such prisoner shall be confined in a cell apart from all other prisoners" will have to be given some
rational meaning to effectuate the purpose behind the provision so as not to attract the vice of solitary confinement.
We will presently point out the nature of detention in prison since the time capital sentence is awarded to an accused
and until it is executed, simultaneously delineating the steps while enforcing the impugned provision.
247. The next question is : who is a prisoner under sentence of death and how is he to be dealt with when confined
in prison before execution of sentence ? If solitary confinement or cellular or separate confinement cannot be
imposed for a period beyond three months in any case, would it be fair to impose confinement in terms of Section
30(2) on a prisoner under sentence of death right from the time the Sessions Judge awards capital punishment till
the sentence is finally executed ? The sentence of death imposed by a Sessions Judge cannot be executed unless it is
confirmed by the High Court (see Section 366(1), Cr.P.C.). However, we are not left in any doubt that the prison
authorities treat such a convict as being governed by Section 30(2) despite the mandate of the warrant under which
he is detained that the sentence shall not be executed till further orders are received from the Court. It is
undoubtedly obligatory upon the Sessions Judge while imposing the sentence of death on a person to commit him
to jail custody under a warrant. Now, after the convicted person is so committed to jail custody the Sessions Judge
submits the case to the High Court as required by Section 366, Cr.P.C. The High Court may either confirm the
sentence or pass any other sentence warranted by law or may even acquit such a person. Thereafter, upon a
certificate granted by the High Court under Article 134(c) of the Constitution or by special leave under Article 136,
an appeal can be preferred to the Supreme Court. Section 415, Cr.P.C. provides for postponement of execution of
sentence of death in case of appeal to Supreme Court either upon a certificate by the High Court or as a matter of
right under Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1971, or by special leave under
Article 136. Further, under Articles 72 and 161 of the Constitution, the President and the Governor in the case of
sentence of death has power to grant pardon, reprieve or remittance or commutation of the sentence. No one is
unaware of the long time lag in protracted litigation in our system between the sentence of death as imposed by the
Sessions Court and the final rejection of an application for mercy. Cases are not unknown where merely on account
of a long lapse of time the Courts have commuted the sentence of death to one of life imprisonment on the sole
ground that the prisoner was for a long time hovering under the tormenting effect of the shadow of death. Could it
then be said that under Sub-section (2) of Section 30 such prisoner from the time the death sentence is awarded by
the Sessions Judge has to be confined in a cell apart from other prisoners ? The prisoner in such separate,
confinement would be under a trauma for unusually long time, and that could never be the intention of the
legislature while enacting the provision. Such special precautionary measures heaping untold misery on a condemned
prisoner cannot spread over a long period giving him no respite to escape from the boredom by physical and mental
contact with other prisoners. What then must be the underlying meaning of the expression "a prisoner under
51
sentence of death" in Section 30 so as to reduce and considerably minimise the period during which the prisoner
suffers this extreme or additional torture ?
248. The expression "prisoner under sentence of death" in the context of Sub-section (2) of Section 30 can only
mean the prisoner whose sentence of death has become final, conclusive and indefeasible which cannot be annulled
or voided by any judicial or constitutional procedure. In other words, it must be a sentence which the authority
charged with the duty to execute and carry out must proceed to carry out without intervention from any outside
authority. In a slightly different context in State of Maharashtra v. Sindhi @ Raman MANU/SC/0218/1975 :
1975CriLJ1475 , it was said that the trial of an accused person under sentence of death does not conclude with the
termination of the proceedings in the Court of Sessions because of the reason that the sentence of death passed by
the Sessions Court is subject to confirmation by the High Court. A trial cannot be deemed to have concluded till an
executable sentence is passed by a competent court. In the context of Section 303 of the Indian Penal Code it was
said in Shaik Abdul Azeez v. State of Karnataka MANU/SC/0134/1977 : 1977CriLJ1121 , that an accused cannot
be under sentence of imprisonment for life at the time of commission of the second murder unless he is actually
undergoing such a sentence or there is legally extant a judicially final sentence which he is bound to serve without
the requirement of a separate order to breathe life into the sentence which was otherwise dead on account of
remission under Section 401, Cr.P.C. Therefore, the prisoner can be said to be under the sentence of death only
when the death sentence is beyond judicial scrutiny and would be operative without any intervention from any other
authority. Till then the person who is awarded capital punishment cannot be said be a prisoner under sentence of
death in the context of Section 30, Sub-section (2). This interpretative process would, we hope, to a great extent
relieve the torment and torture implicit in Sub-section (2) of Section 30, reducing the period of such confinement to
a short duration.
249. What then is the nature of confinement of a prisoner who is awarded capital sentence by the Sessions Judge
and no other punishment from the time of sentence till the sentence becomes automatically executable ? Section
366(2) of the Cr.P.C. enable the Court to commit the convicted person who is awarded capital punishment to jail
custody under a warrant. It is implicit in the warrant that the prisoner is neither awarded simple nor rigorous
imprisonment. The purpose behind enacting Sub-section (2) of Section 366 is to make available the prisoner when
the sentence is required to be executed. He is to be kept in jail custody. But this custody is something different from
custody of a convict suffering simple or rigorous imprisonment. He is being kept in jail custody for making him
available for execution of the sentence as and when that situation arises. After the sentence becomes executable he
may be kept in a cell apart from other prisoners with a day and night watch. But even here, unless special
circumstances exist, he must be within the sight and sound of other prisoners and be able to take food in their
company.
250. If the prisoner under sentence of death is held in jail custody, punitive detention cannot be imposed upon him
by jail authorities except for prison offences. When a prisoner is committed under a warrant for jail custody under
Section 366(2) Cr.P.C. and if he is detained in solitary confinement which is a punishment prescribed by Section 73,
IPC, it will amount to imposing punishment for the same offence more than once which would be violative of
Article 20(2). But as the prisoner is not to be kept in solitary confinement and the custody in which he is to be kept
under Section 30(2) as interpreted by us would preclude detention in solitary confinement, there is no chance of
imposing second punishment upon him and therefore, Section 30(2) is not violative of Article 20.
251. Article 21 guarantees protection of life and personal liberty. Though couched in negative language it confers the
fundamental right to life and personal liberty. To the extent, assuming Sub-section (2) of Section 30 permits solitary
confinement, the limited personal liberty of prisoner under sentence of death is rudely curtailed and the life in
solitary confinement is even worse than in imprisonment for life. The scope of the words "life and liberty" both of
which occur in Vth and XIVth Amendments of the U.S. Constitution, which to some extent are the precurser of
Article 21, have been vividly explained by Field, J. in Munn v. Illinois [1877] 94 US 113 at 142 To quote :
By the term "life" as here used something more is meant than mere animal existence. The inhibition against its
deprivation extends to all these limits and faculties by which life is enjoyed. The provision equally prohibits the
mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other
organ of the body through which the soul communicates with the outer world... by the term liberty, as used in the
provision something more is meant than mere freedom from physical restraint or the bonds of a prison.
This statement of law was approved by a Constitution Bench of this Court in Kharak Singh v. State of U.P.
MANU/SC/0085/1962 : 1963CriLJ329 , as also in D.B. Patnaik (supra). Personal liberty as used in Article 21 has
been held to be a compendious term to include within itself all the varieties of rights which go to make personal
52
liberties of the man other than those dealt with in Clause (d) of Article 19(1). The burden to justify the curtailment
thereof must squarely rest on the State.
252. There is no more controversy which ranged over a long period about the view expressed in A.K. Gopalan v.
State of Madras MANU/SC/0012/1950, that certain articles of the Constitution exclusively deal with specific
matters and where the requirements of an article dealing with a particular matter in question are satisfied and there is
no infringement of the fundamental right guaranteed by the article, no recourse can be had to fundamental right
conferred by another article. This doctrine of exclusivity was seriously questioned in R.C. Cooper v. Union of India
MANU/SC/0074/1970 : [1971]1SCR512 , and it was overruled by a majority of Judges of this Court, Ray, J.
dissenting. In fact, in Maneka Gandhi v. Union of India MANU/SC/0133/1978 : [1978]2SCR621 .
Bhagwati, J ,observed as under :
The law must, therefore, now be taken to be well settled that Article 21 does not exclude Article 19 and that even if
there is a law prescribing a procedure for depriving a person of personal liberty and there is consequently no
infringement of the fundamental right conferred by Article 21, such law, in so far as it abridges or takes away any
fundamental right under Article 19 would have to meet the challenge of that article...if a law depriving a person of
personal liberty and prescribing a procedure for that purpose within the meaning of Article 21 has to stand the test
of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation, ex
hypothesi it must also be liable to be tested with reference to Article 14.
253. The challenge under Article 21 must fail on our interpretation of Sub-section (2) of Section 30. Personal liberty
of the person who is incarcerated is to a great extent curtailed by punitive detention. It is even curtailed in
preventive detention. The liberty to move, mix, mingle, talk, share company with co-prisoners, if substantially
curtailed, would be violative of Article 21 unless the curtailment has the backing of law. Sub-section (2) of Section
30 establishes the procedure by which it can be curtailed but it must be read subject to our interpretation. The word
"law" in the expression "procedure established by law" in Article 21 has been interpreted to mean in Maneka
Gandhi's case (supra) that the law must be right, just and fair, and not arbitrary, fanciful or oppressive. Otherwise it
would be no procedure at all and the requirement of Article 21 would not be satisfied. If it is arbitrary it would be
violative of Article 14. Once Section 30(2) is read down in the manner in which we have done, its obnoxious
element is erased and it cannot be said that it is arbitrary or that there is deprivation of personal liberty without the
authority of law.
254. Incidentally it was also urged that the classification envisaged by Section 30 of prisoner under sentence of death
is irrational and it is not based upon any intelligible differentia which would distinguish persons of one class from
others left out and the basis of differentiation has no nexus with the avowed policy and object of the Act. There is
no warrant for an implicit belief that every prisoner under sentence of death is necessarily violent or dangerous
which requires his segregation. Experience shows that they become morose and docile and are inclined to spend
their last few days on earth in communion with their Creator. It was therefore, said that to proceed on the
assumption that every prisoner under sentence of death is necessarily of violent propensities and dangerous to the
community of co-prisoners is unwarranted and the classification on the basis of sentence does not provide any
intelligible differentia. The rationale underlying the provision is that the very nature of the position and predicament
of prisoner under sentence of death as construed by us, lead to a certain situation and present problems peculiar to
such persons and warrants their separate classification and treatment as a measure of jail administration and prison
discipline. It can hardly be questioned that prisoners under sentence of death form a separate class and their separate
classification has to be recognised. In England a prisoner under sentence of death is separately classified as would
appear from para 1151, Vol. 30, Halsbury's Laws of England, 3rd Edition. He is searched on reception and every
article removed which the governor thinks it dangerous or inexpedient to leave with him. He is confined in a
separate cell, kept apart from all other prisoners and is not required to work. Visits are allowed by relatives, friends
and legal advisers whom the prisoner wishes to see etc. It is true that there is no warrant for the inference that a
prisoner under sentence of death is necessarily of violent propensities or dangerous to co-prisoners. Approaching
the matter from that angle we interpreted Sub-section (2) of Section 30 to mean that he is not to be completely
segregated except in extreme cases of necessity which must be specifically made out and that too after he in the true
sense of the expression becomes a prisoner under sentence of death. Classification according to sentence for the
security purposes is certainly valid and, therefore, Section 30(2) does not violate Article 14. Similarly, in the view
which we have taken of the requirements of Section 30(2), the restriction does not appear to be unreasonable. It is
imposed keeping in view the safety of the prisoner and the prison security and it is not violative of Article 19. The
challenge in either case must fail.
53
255. Charles Sobhraj, a foreigner, was arrested on 6th July 1976 and on 15th July 1976 he was served with an order
of detention under Section 3 of the Maintenance of Security Act, 1971. His allegation is that ever since he was
lodged in Tihar Central Jail he was put in bar fetters and the fetters were retained continuously for 24 hours a day
and the uncontroverted fact is that since his detention he was put in bar fetters till this Court made an order on 24th
February 1978 recording an assurance on behalf of the respondents given by the learned Additional Solicitor
General that the bar fetters shall be removed forthwith for a period of 14 days except when the prisoner was taken
from the prison to the Court and back and also when the petitioner was taken for the purpose of an interview but if
the interview is in the cell no such bar fetters shall be put. By subsequent orders this order dated 24th February 1978
was continued. Thus, from July 1976 to February 1978 the petitioner was kept in bar fetters. In the affidavit in reply
on behalf of respondent No. 3, the Superintendent of Tihar Central Jail dated 5th September 1977, gory details of
the criminal activities of the petitioner are set out simultaneously saying that the petitioner is of extremely desperate
and dangerous nature whose presence is needed by Interpol and, therefore, it has been considered necessary to keep
him under fetters while in Jail. While examining the constitutional validity of Section 56 we have not allowed our
vision to be coloured, based or abridged by these averments as in our opinion for the main contention raised by the
petitioner they may not be relevant.
256. The petitioner contends that Section 56 of the Prisons Act so far as it confers unguided, uncanalised and
arbitrary powers on the Superintendent to confine a prisoner in irons is ultra vires Articles 14 and 21, the challenge
under Article 19 being not open to him. Section 56 reads as under :
56. Whenever the Superintendent considers it necessary (with reference either to the state of the prison or the
character of the prisoners) for the safe custody of any prisoners that they should be confined in irons, he may,
subject to such rules and instructions as may be laid down by the Inspector General with the sanction of the State
Government so confine them.
257. Sub-para (3) of para 399 of the Punjab Jail Manual provides that special precautions should be taken for the
safe custody of dangerous prisoners which inter alia includes putting him under fetters, if necessary. The safeguard
that it provides is that if the Superintendent decides to put him in fetters he must record special reasons for putting
fetters in the Journal and it must also be noted in the history ticket of the prisoner. Warders are under a duty to
satisfy themselves that the fetters are intact. Para 435 provides that fetters imposed for security shall be removed by
the Superintendent as soon as he is of opinion that this can be done with safety. Para 69 in Chapter VI provides that
the Superintendent shall discharge his duties subject to the control of, and all orders passed by him shall be subject
to revision by the Inspector General.
258. Undoubtedly, the limited locomotion that a prisoner may enjoy while being incarcerated is seriously curtailed by
being put in bar fetters. In order to enable us to know what a bar fetter is and how, when a prisoner is subjected
thereto, his locomotion is severly curtailed, a bar fetter was shown to us and its use was demonstrated in the Court.
It may be mentioned that the iron rings which are put on the ankles are welded. Therefore, when the fetter is to be
removed, the rings have to be broken open. Then there is a horizontal bar which keeps the two legs apart and there
are two verticle bars which are hooked to the waist-belt which makes, even a slow motion walking highly
inconvenient. If along with this, handcuffs are put on the prisoner, his life to put it mildly, would be intolerable. The
bar fetters are kept day and night even when the prisoner is kept in cellular confinement. It needs not much of an
elaboration to come to the conclusion that bar fetters to a very considerable extent curtail, if not wholly deprive
locomotion which is one of the facets of personal liberty. And this is being done as a safety measure with a view to
preventing the prisoner from walking as freely as others or from running away. It was tartly said that the prisoners
have no fundamental freedom to escape from lawful custody and, therefore, they cannot complain against
precautionary measures which impede escape from the prison.
259. Article 21 forbids deprivation of personal liberty except in accordance with the procedure established by law
and curtailment of personal liberty to such an extent as to be a negation of it would constitute deprivation. Bar
fetters make a serious inroad on the limited personal liberty which a prisoner is left with and, therefore, before such
erosion can be justified it must have the authority of law. At one stage it was felt that the provision contained in para
399(3) would provide the sanction of law for the purpose of Article 21. Section 56 confers power for issuing
instructions by the Inspector General of Prison with the sanction of the State Government and Section 59 confers
power on the State Government to make rules which would include the rule regulating confinement in fetters. A
deeper probe into the sanction behind enactment of para 399 ultimately led the learned Additional Solicitor General
to make the statement on behalf of the respondents that para 399 of the Punjab Jail Manual is not a statutory rule
referable either to Section 59 or 60 of the Prisons Act, 1894. learned Counsel stated that despite all efforts,
respondents were unable to obtain the original or even a copy of the sanction of the local Government referred to
54
in Section 56. We must, therefore, conclude that the provision contained in para 399 is not statutory and has not the
authority of law.
260. The question, therefore, is, whether the power conferred on the Superintendent by Section 56 is unguided and
uncanalised in the sense that the Superintendent can pick and choose a prisoner arbitrarily for being subjected to bar
fetters for such length of time as he thinks fit, and for any purpose he considers desirable, punitive or otherwise.
261. A bare perusal of Section 56 would show that the Superintendent may put a prisoner in bar fetters (i) when he
considers it necessary; (ii) with reference either to the state of the prison or character of the prisoner; and (iii) for the
safe custody of the prisoner. Now, we would exclude from consideration the state of prison requirement because
there is no material placed on record to show that the petitioner was put in bar fetters in view of the physical state
of the Tihar Central Jail. But the Superintendent has first to be satisfied about the necessity of putting a prisoner in
bar fetters and "necessity" is certainly opposed to mere expediency. The necessity for putting the prisoner in bar
fetters would have to be examined in the context of the character of the prisoner and the safe custody of the
prisoner. The safe custody of the prisoner may comprehend both the safe custody of the prisoner who is being put
in bar fetters and of his companions in the prison. We must here bear in mind that the Superintendent is required to
fully record in his Journal and in the prisoner's history ticket the reasons for putting the prisoner in bar fetters.
When it is said that the power conferred by Section 56 is uncanalised and unguided it is to be borne in mind that the
challenge has to be examined in the context of the subject matter of the legislation, viz., prisons, and the subject
matter itself in some cases provides the guidelines. In this context we may profitably refer to Procunier's case
(supra). It says :
The case at hand arises in the context of prisons. One of the primary functions of government is the preservation of
societal order through enforcement of the criminal law, and the maintenance of penal institutions is an essential part
of that task, The identifiable governmental interests at stake in this task are the preservation of internal order and
discipline, the maintenance of institutional security against escape or unauthorised entry, and the rehabilitation of
the prisoners.
Two basic considerations in the context of prison discipline are the security of the prison and safety of the prisoner.
These being the relevant considerations, the necessity or putting any particular prisoner in bar fetters must be
relatable to them. We are, therefore, of the opinion that the power under Section 56 can be exercised only for
reasons and considerations which are germane to the objective of the statute, viz., safe custody of the prisoner,
which takes in considerations regarding the character and propensities of the prisoner. These and similar
considerations bear direct nexus with the safe custody of prisoners as they are aimed primarily at preventing their
escape. The determination of the necessity to put a prisoner in bar fetters has to be made after application of mind
to the peculiar and special characteristics of each individual prisoner. The nature and length of sentence or the
magnitude of the crime committed by the prisoner are not relevant for the purpose of determining that question.
262. Again, the power under Section 56 is not unbridled because in the context of para 399 special precautions as
required by Sub-para 3 have to be taken for the safe custody of dangerous prisoners, irrespective of the fact whether
they are awaiting trial or have been convicted. It is difficult to define with precision what attributes of a prisoner can
justify his classification as 'dangerous'. But, these are practical problems which have to be sorted out on practical and
pragmatic considerations by those charged with the duty of administering jails.
263. Let us look at the conspectus of safeguards that are adumbrated in Section 56 itself and in para 399 which
though not statutory are binding on the Superintendent. Determination of necessity to put a prisoner in bar fetters
must be relatable to the character of the prisoner, and the safe custody of the prisoner. That can only be done after
taking into consideration the peculiar and special characteristics of each individual prisoner. No ordinary routine
reasons can be sufficient. The reasons have to be fully recorded in the Superintendent's Journal and the prisoner's
history ticket. Duty to give reasons which have, at least to be plausible, will narrow the discretionary power
conferred on the Superintendent. It may be made clear that as far as possible, these reasons must be recorded in the
prisoner's history ticket in the language intelligible and understandable by the prisoner so as to make the next
safeguard effective, viz., a revision petition under para 69 to the Inspector General of Prisons. A further obligation
on the Superintendent is that the fetters imposed for the security shall be removed by the Superintendent as soon as
he is of the opinion that this can be done with safety as required by para 435. In order to give full effect to the
requirement of para 435, the Superintendent will have himself to review the case of the prisoner at regular and
frequent intervals for ascertaining whether the fetters can be removed, consistently with the requirement of safety. It
thus becomes clear that there are sufficient guidelines in Section 56 which contain a number of safeguards against
misuse of bar fetters by the Superintendent. Such circumscribed peripheral discretion with duty to give reasons
which are revisable by the higher authority cannot be described as arbitrary so as to be violative of Article 14.
55
264. It was submitted that in view of the provision contained in paras 426 and 427 a prisoner may be put in bar
fetters, irrespective of the requirement of prison safety and uninfluenced by the prisoner's character, on irrelevant
and extraneous considerations such as length of sentence or the number of convictions. The only relevant
considerations for putting a prisoner in bar fetters or for confining him in irons are the character, antecedents and
propensities of the prisoner. The nature or length of sentence or the number of convictions or the gruesome
character of the crime the prisoner is alleged to have committed are not by themselves relevant and can not enter
the determination of the Superintendent except to the extent to which they bear on the question of the safety and
safe custody of the prisoner.
265. The legislative policy behind enacting Section 56 as interpreted by us is clear and discernible and the guidelines
prescribed by the section have the effect of limiting the application of the provision to a particular category of
persons. In such a situation the discretion circumscribed by the requirement vested in the prison authority charged
with the duty to manage the internal affairs of the prison for the selective application of Section 56 would certainly
not infringe Article 14.
266. It was said that continuously keeping a prisoner in fetters day and night reduces the prisoner from a human-
being to an animal, and that this treatment is so cruel and unusual that the use of bar fetters is anethema to the spirit
of the Constitution. Now, we do not have in our Constitution any provision like the VIIIth Amendment of the U.S.
Constitution forbidding the State from imposing cruel and unusual punishment as was pointed out by a Constitution
Bench of this Court in Jagmohan Singh v. State of U.P. MANU/SC/0139/1972 : 1973CriLJ370 But we cannot be
oblivious to the fact that the treatment of a human being which offends human dignity, imposes avoidable torture
and reduces the man to the level of a beast would certainly be arbitrary and can be questioned under Article 14.
Now, putting bar fetters for an unusually long period without due regard for the safety of the prisoner and the
security of the prison would certainly be not justified under Section 56. All these so when it was found in this case
that medical opinion suggested removal of bar fetters and yet it is alleged that they were retained thereafter. One
cannot subscribe to the view canvassed with some vigour that escape from jail cannot be prevented except by
putting the prisoner continuously in bar fetters. That will be a sad commentary on the prison administration and the
administratOrs. Therefore, Section 56 does not permit the use of bar fetters for an unusually long period, day and
night, and that too when the prisoner is confined in secure cells from where escape is somewhat inconceivable. Now
that bar fetters of the petitioner have been removed in February 1978, the question of re-imposing them would not
arise until and unless the requirement herein delineated and the safeguards herein provided are observed.
267. In the result, on the interpretation put by us, Section 56 is not violative of Article 14 or 21. The challenge must,
therefore, fail.
268. Both the petitions are accordingly disposed of in the light of the observations made in the judgment.
269. We share the concern and anxiety of our learned Brother Krishna Iyer, J. for reorientation of the outlook
towards prisoners and the need to take early and effective steps for prison reforms. Jail Manuals are largely a
hangover of the past, still retaining anachronistic provisions like whipping and the ban on the use of the Gandhi
cap. Barbaric treatment of a prisoner from the point of view of his rehabilitation and acceptance and retention in the
mainstream of social life, becomes counterproductive in the long run.
270. Justice Krishna Iyer has delivered an elaborate judgment which deals with the important issues raised before us
at great length and with great care and concern. We have given a separate opinion, not because we differ with him
on fundamentals, but because we thought it necessary to express our views on certain aspects of the questions
canvassed before us.
56
MANU/HP/0060/1989
Equivalent Citation: 1989CriLJ1884, ILR1989 1 HP 14
IN THE HIGH COURT OF HIMACHAL PRADESH
Appellants: Saroop Kumar

Vs.
Respondent: State of Himachal Pradesh
Hon'ble Judges:
R.S. Thakur, J.
ORDER
R.S. Thakur, J.
1. This Criminal Revision Petition has been registered on the application of the revisionist Saroop Kumar, wherein
he has stated that he was tried and convicted for an offence under Section 302 of the Penal Code by the Additional
Sessions Judge, Kangra at Dharamsala, vide his order dt. Dec. 6, 1983, which order was then set aside, in appeal, by
this High Court vide order dt. April, 3, 1985, holding that the commitment order as also the trial of the revisionist
by the Additional Sessions Judge in pursuance to the commitment order were without jurisdiction since the
revisionist was a child at the relevant time. The revisionist was, thereafter tried for the same offence by the
Children's Court at Una which Court after holding him guilty ordered that the revisionist be kept for a period of
seven years for the offence under Section 302 of the Penal Code in Special School at Haroli or in any other Special
School or Reformatory School or Borstal School or any other institution as the State Government may deem it fit in
view of the provisions of Section 23 of the H.P. Children Act, 1979 (hereinafter referred to as the Act). Thereafter
the revisionist vide an application dt. Dec. 15, 1987 again approached the Children's Court with the request that he
be released on his executing surety bond to the satisfaction of the Court and be entrusted to the care and custody of
his parents against adequate security as he had attained the age of majority, that is, 18 years and it was not proper to
keep him with the children in the Special School at Haroli and that he had attained the age of 18 years in the year
1986. This application of his was also rejected by the Children's Court vide its order dt. April, 8, 1988 and hence this
revision. The revisionist has urged in the instant revision petition that his case was governed by Section 21 of the
Act and not under Section 23 of the Act and, therefore, the order of the Children's Court dt. June 17, 1986 under
Section 23 of the Act was improper.
2. Since this petition has been sent through Incharge, Special Children School, Una, where the revisionist remains
lodged, this Court appointed Shri Praneet Gupta, Advocate, as pleader, at State expenses to assist this Court on
behalf of the revisionist and this Court places on record its appreciation that he has done his job well.
3. From the judgment of the Children's Court dt. June 17, 1986, it is apparent that according to the finding of the
Court, the revisionist at the time of the commission of the offence in question was over 14 years of age and the
Court has, therefore, ordered his detention in the Special Children School for seven years in accordance with
Section 23 of the Act. In fact para 57 of the impugned judgment being relevant in this behalf is reproduced as under
: ---
The delinquent has given his age as in between 17 to 18 years. He was held as a 'child' on 9-6-1982, the date of
commission of the offence. Thus it is clear that the delinquent is a child over the age of 14 years and the provisions
of Section 21(1)(c)(i) are only attracted to the present facts and that of Section 23 of the Act. Section 21(1)(c)(i)
prescribes that an order directing a child to be sent to a special school can be passed in the case of a boy over 14
years of age for a period of "not less than 3 years. There is no provision which prescribes the maximum period for
which a 'child' can be sent to such a school. However, Section 23, Sub-clause (2) proviso prescribes that the period
of detention so ordered shall not exceed the maximum period of imprisonment to which the child could have been
sentenced for the offence committed. It is the only rider to Section 21 of the Act.
4. 1 have heard the learned Counsel for the parties and also gone through the record of the case and for reasons to
be recorded presently, I feel that the revision in hand deserves to be accepted.
57
5. The learned Counsel for the revisionist has argued that the Children's Court in its impugned order has erred in
holding that the case is governed by Section 23 of the Act and that as a matter of fact his case is squarely covered by
the provisions of Section 21 thereof. The learned Counsel for the State, on the other hand, has supported the order
of the Children's Court and stated that since the proviso to Section 23 of the Act clearly says that the delinquent
child be kept for the maximum period of detention to which the child could have been sentenced for the offence
committed, the revisionist has rightly been ordered to be kept in the Special School for a period of seven years
which was the maximum period of sentence which the Court was competent to award him.
6. In order to properly construe the relevant provisions of these two Sections, they are reproduced as under:
Section 21(1). Where a Children's Court is satisfied on inquiry that a child has committed an offence, then,
notwithstanding anything to the contrary contained in any other law for the time being in force, the Children's Court
may, if it so thinks fit,-
(a) allow the child to go home after advice or admonition;
(b) direct the child to be released on probation of good conduct and placed under the care of any parent, guardian
or other fit person executing a bond, with or without surety as that Court may require for the good behaviour and
well being of the child for any period not exceeding three years;
(c) make an order directing the child to be sent to a special school,-
(i) in the case of a boy over fourteen years of age or of a girl over sixteen years of age, for a period of not less than
three years;
(ii) in the case of any other child, for the period until he ceases to be a child:
Then the first proviso to this sub-section provides for reasons to be recorded to reduce the period of stay.
7. The second proviso then empowers the Court for reasons to be recorded to extend the period of such stay, but in
no case the period of stay, shall extend beyond the time when the child attains the age of eighteen years in the case
of a boy, or twenty years in the case of a girl.
7A. Then Section 23 states:
(1) Notwithstanding anything to the contrary contained in any other law for the time being in force, no delinquent
child shall be sentenced to death or imprisonment, or committed to prison in default of payment of fine or in
default of furnishing security provided that where a child who has attained the age of fourteen years has committed
an offence and the Children's Court is satisfied that the offence committed is of so serious a nature or that his
conduct and behaviour have been such that it would not be in his interest or in the interest of other children in a
special school to send him to such a special school and that none of the other measures provided under this Act is
suitable or sufficient, the Children's Court may order that delinquent child to be kept in safe custody in such place
and manner as it thinks fit and shall report the case for the orders of the Government.
(2) On receipt of a report from the Children's Court under Sub-section (1), the Government may make such
arrangement in respect of the child as it deems proper and may order such delinquent child to be detained at such
place and on such conditions as it thinks fit:
Provided that the period of detention so ordered shall not exceed the maximum period of imprisonment to which
the child could have been sentenced for the offence committed.
8. The Children's Court in para 58 of the impugned judgment has observed that since the powers of the Presiding
Magistrate of the Children's Court have been conferred upon him by virtue of his being posted as Chief Judicial
Magistrate, the maximum punishment which could be inflicted upon the revisionist was seven years and that as such
while relying upon the second proviso to Section 23, he has ordered seven years' detention of the revisionist in the
Special Children School at Haroli.
58
9. Now the first question that arises for determination is whether the Children's Court was competent to convict the
revisionist for a maximum period of imprisonment of seven years and thus his order of detention for that period is
competent under the second proviso to Section 23. The answer to this poser is clearly in the negative. Under Clause
(d) of Section 2 of the Act, 'child' means a boy who has not attained the age of sixteen years or a girl who has not
attained the age of eighteen years. Then under CL (e) thereof, "Children's Court" means a Court constituted under
Section 5.
10. Sub-section (2) of Section 5 of the Act then lays down:
A Children's Court shall consist of such number of judicial magistrates of the first class, forming a bench, as the
Government thinks fit to appoint, of whom one shall be designated as the principal magistrate; and every such
bench shall have the powers conferred by the Cr. P.C. 1973 (2 of 1974), on a judicial magistrate of the first class.
11. Thus it is patent that the powers of the Children's Court are confined and are equivalent to and co-extensive
with the powers of a judicial magistrate of the first class under the Cr. P.C. of 1973.
11A. Section 29 of the Cr. P.C. then states:
(1) The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or
imprisonment for life or of imprisonment for a term exceeding seven years.
12. Thus the maximum power of sentence that vests in the Chief Judicial Magistrate under the said section is seven
years' of imprisonment.
13. Then Sub-section (2) thereof lays down that the Court of a Magistrate of the first class may pass a sentence of
imprisonment for a term not exceeding three years, or of fine not exceeding five thousand rupees, or of both. Thus
the maximum powers of sentence which are conferred upon the Magistrate of first class under the Code to
substantive period of imprisonment is only three years. Obviously from this Sub-section (2) of the Section 29 of the
Cr. P.C. read with Sub-section (2) of S. .5 of the Act, it becomes crystal clear that the maximum power of
imprisonment that the Children's Court enjoys is only three years. Since in terms of Section 23 of the Act no
delinquent child can be sentenced to imprisonment by the Children's Court but in accordance with the proviso
thereto, the maximum power of the Court to award sentence of detention to the delinquent child can in no case
exceed the period of three years. In the instant case obviously, the revisionist has been ordered to be detained for a
period of seven years which is apparently in utter violation of the provisions of the Act.
14. The learned principal magistrate of the Children's Court in this case has awarded this detention of seven years in
that capacity perhaps under the misconception that since he was a Chief Judicial Magistrate having maximum power
of imprisonment for seven years, he could legally order the detention of the revisionist for the period co-extensive
with his maximum powers which was a complete mis-construction and violation of the provisions of Sub-section (2)
of Section 5 of the Act, since even if as Chief Judicial Magistrate he was enjoying the powers for imprisonment for
seven years, the moment he presides over the Children's Court, those powers become irrelevant as he becomes only
one of the members of the Bench of the Children's Court and as such the maximum power of detention of the
Bench will be only for a period of three years irrespective of his own powers as Chief Judicial Magistrate, as the
powers of the Children's Court in this behalf are equivalent to those of the powers of the Judicial Magistrate of the
first class under the Cr. P.C. which is not more than three years of imprisonment.
15. Now coming to the provisions of Section 21 of the Act, under Clause (c) thereof the Children's Court has been
empowered to send a delinquent child to a special school for a period of three years in case of a boy over fourteen
years of age and a girl over sixteen years of age.
16. The second proviso to that Section, however, clearly lays down that in case the period of detention of a child is
extended it shall in no case be beyond the time when the child attains the age of eighteen years in the case of a boy
or twenty years in the case of a girl and the reasons have to be recorded for doing so. It may, however, be noted that
the period of detention in every case can in no case be more than three years in view of what has been stated above.
17. So far as Section 23 of the Act is concerned, its relevance in this case is only to this extent that as per the
provisions of Sub-section (1) thereof, no delinquent child can be sentenced to death or imprisonment or committed
to prison in default of payment of fine, or in default of furnishing security. If the proviso to that section is to be
made applicable, the Children's Court is enjoined upon returning a finding that it was satisfied that the offence in
59
question committed by the delinquent child is of so serious a nature or that his conduct and behaviour have been
such that it would not be in his interest or in the interest of other children in a special school to send him to such
special school etc. and then he has to be detained separately under intimation to the Government in this behalf and
this the Government has to make arrangement for the detention of such a child. But even in such a case, again, the
detention cannot be ordered for more than three years. In the instant case, however, since the Children's Court itself
has sent him to a special school, the question of application of this Section to this case does not arise nor is there
any such finding in the impugned judgment and the Children's Court has, therefore, wrongly resorted to the
provisions of this Section.
18. It is clear from the averments in the revision petition which have not been denied that the revisionist has already
undergone detention in the special school for a period of four years which is beyond the powers of Children's
Court, the impugned order of the Children's Court is, therefore, set aside to the extent it ordered the detention of
the revisionist for a period beyond three years and in the result the detention order of the revisionist is quashed and
he is ordered to be set at liberty at once.
60
MANU/SC/0369/1993
Equivalent Citation: 1993(17)ACR605(SC), AIR1993SC2436, 1993CriLJ3140, JT1993(4)SC1, 1993(3)SCALE30,

1993(3)SCALE31, (1993)3SCC552, [1993]3SCR969
Civil Appeals Nos. 722 and 723 with 386 and 387 of 1993
Appellants:Harpal Singh Chauhan and others

Vs.
Respondent: State of U.P.
Hon'ble Judges:
Kuldip Singh and N. P. Singh, JJ.
ORDER
N.P. Singh, J.
1. The appellants in civil Appeals Nos. 722 & 723 of 19 93 had been appointed as Assistant District Government
Counsel (Criminal) to appear in different criminal cases, on behalf of the State, in different Courts in the District of
Moradabad. They filed the connected Writ Applications before the High Court, against the decision of the State
Government, refusing to extend their term for a further period of three years, which were dismissed by the High
Court.
2. It appears that the appellants, except appellant No. 3, Gopal Sharma, had been appointed by Government Order
dated 25.2.91, as Assistant District Government Counsel (Criminal) in the District of Moradabad, in accordance
with the provisions of Section 24 of the Criminal Procedure Code (hereinafter referred to as "the Code") and the
Legal Remembrancer Manual (hereinafter referred to as "the Manual") against the substantive vacancies. Appellant
No. 3, however, had been appointed on 13.12.1990. The last date of the tenure of the appellants, other than
appellant No. 3, as mentioned in the aforesaid Government Order dated 25.2.1991 was 31.12.1991. The tenure of
appellant No. 3, was up to 13.12.1991. It is not in dispute that before the expiry of the term aforesaid, the District
Judge, Moradabad, by his latter dated 27.12.1991 recommended the names of appellants for extension of their
terms. The District Judge prepared two lists i.e. 'A' and 'B'. List 'A' contained the names of those lawyers "whose
work and conduct has been approved for their extension as Government Counsel", whereas List 'B' contained the
names of the remaining Government Counsel,who in the opinion of the District Judge were "average lawyers". The
names of the appellants are in List 'A'. The District Judge requested the District Magistrate, Moradabad, to send his
recommendation to the State Government for extension of the term of the Government Counsel, mentioned in List
'A'. The District Magistrate, after receipt of the recommendation of the District Judge afore said, by a
communication dated 2.1.92, did not recommend the names of the appellants, for extension of their terms, saying
that on the inquiry at his level, "reputation, professional work, behaviour and conduct of the above mentioned
Government Counsel was not found in accordance with public interest". It may be mentioned that on 28.12.91, the
State Government had extended the terms of the appellants till further orders. Ultimately, without assigning any
reason, the extension recommended by the District Judge was rejected by the State Government, which decision is
the subject matter of the controversy in the present appeals.
3. In the State of U.P., the Manual is an authoritative compilation of the government orders and instructions for the
conduct of legal affairs of the State Government. Para 1.06 of Chapter VII gives the details of the Law Officers of
the Government, which includes the Government Counsel (Civil, Revenue, Criminal) along with many others like
judicial Secretary and Legislative Secretary. The Chapter VII of the Manual contains the procedure in respect of
appointment and conditions of engagement of District Government Counsel. The District Officer is required to
consider all the applications received, in consultation with the District Judge and to submit in order of preference
the name of the legal practitioners, along with the opinion of the District Judge on the suitability and merit of each
candidate to the State Government, giving due weightage to the claim of the existing incumbents, if any. After the
receipt of such recommendations, the Legal Remembrancer is required to submit the said recommendations with his
own opinion for the orders of the State Government.
61
4. In Para 7.06 of the Manual, the procedure regarding the appointment and renewal has been prescribed:-
7.06. Appointment and renewal -
(1) The legal practitioner finally selected by the Government may be appointed District Government Counsel for
one year from the date of his taking over charge.
(2) At the end of the aforesaid period, the District Officer after consulting the District Judge shall submit a report
on his work and conduct to the Legal Remembrancer together with the statement of work done in Form No. 9.
Should his work or conduct be found to be unsatisfactory the matter shall be reported to the government for orders.
If the report in respect of his work and conduct is satisfactory, he may be furnished with a deed of engagement in
Form No. 1 for a term not exceeding three years. On his first engagement a copy of Form No. 2 shall be supplied to
him and he shall complete and return it to the Legal Remembrancer for record.
(3) The appointment of any legal practitioner as a District Government Counsel is only professional engagement
terminable at will on either side and is not appointment to a post under the government Accordingly the
government reserves the power to terminate the appointment of any District Government Counsel at any time
without assigning any cause.
5. Para 7.08 contains the procedure for renewal after expiry of the original term:-
7.08. Renewal of term (1) At least three months before the expiry of the term of a District Government Counsel, the
District Officer shall after consulting the District Judge and considering his past record of work, conduct and age,
report to the Legal Remembrancer, together with the statement of work done by him in Form No. 9 whether in his
opinion the term of appointment of such counsel should be renewed or not. A copy of the opinion of the District
Judge should also be sent along with the recommendations of the District Officer.
(2) Where recommendation for the extension of the term of a District Government Counsel is made for a specified
period only, the reasons therefore shall also be stated by the District Officer.
(3) While forwarding his recommendation for renewal of the term of a District Government Counsel-
(i) the District Judge shall give an estimate of the quality of the Counsel's work from the judicial standpoint, keeping
in view the different aspects of a lawyer's capacity as it is manifested before him in conducting State cases, and
specially his professional conduct.
(ii) the District Officer shall give his report about the suitability of the District Government Counsel from the
administrative point of view, his public reputation in general, his character, integrity and professional conduct.
(4) If the government agrees with the recommendations of the District Officer for the renewal of the term of the
Government Counsel, it may pass orders for re-appointing him for a period not exceeding three years.
(5) If the government decides not to re-appoint a Government Counsel, the Legal Remembrancer may call upon the
District Officer to forward fresh recommendations in the manner laid down in para 7.03.
(6) The procedure prescribed in this para shall be followed on the expiry of every successive period of renewed
appointment of a District Government Counsel. Note: The renewal beyond 60 years of age shall depend upon
continuous good work, sound integrity and physical fitness of the Counsel.
6. It was pointed out, on behalf of the appellants, that any legal practitioner finally selected by the Government may
be appointed as District Government Counsel for one year from the date of his taking over charge, but in view of
Para 7.06 of the Manual, at the end of the aforesaid period, the District Magistrate, after consulting the District
Judge has to submit a report on his work and conduct to the Legal Remembrance in the form prescribed. If the
report in respect of his work and conduct is satisfactory, then such Counsel shall be furnished with a deed of
engagement in form No. 1 for a term not exceeding three years. Para 7.08, of the Manual, contains the procedure
for renewal of the term of the District Government Counsel after the expiry of original term. It requires the District
Officer at least three months before the expiry of the term of a District Government Counsel, to report to the Legal
Remembrance, after consulting the District Judge and considering the past record of work, conduct and age of such
62
District Government Counsel. If the Government agrees with the recommendation, it may pass an Order re-
appointing him for a period not exceeding three years.
7. The stand of the appellants is that, in view of Para 7.06(2), the appointment of any legal practitioner as a District
Government Counsel, does not automatically come to an end, rather it indicates an element of continuity and that is
why Para 7.06(2) requires the District Officer, at the end of period of one year to submit a report, after consulting
the District Judge concerned, in respect of the work and conduct of such District Government Counsel, to the
Legal Remembrance, in a form prescribed. If the report in respect of work and conduct is satisfactory, then such
District Government Counsel shall be furnished with a deed of engagement, in a form prescribed for a term not
exceeding three years. As such after the period of one year, if the engagement for a further period upto three years is
not given, it amounts to a stigma.
8. On behalf of the appellants, attention of this Court was drawn to a letter addressed to the District Magistrate by
Dr. Nepal Singh, M.L.C., the District President of the party then in power, recommending the names of other
Government Counsel for renewal/extension of their term. It was pointed out that, in respect of all those persons,
the District Magistrate has recommended for extension. There is, however, no material before us to show that the
District Magistrate was influenced by the said letter in any manner. Apart from that, the persons so recommended
by the District Magistrate were not impleaded as respondents to the Writ Applications. As such we are not inclined
to go into this aspect.
9. The different paragraphs of the Manual aforesaid were examined in detail in the case of Kumari Shrilekha
Vidyarthi v. State of U.P. MANU/SC/0504/1991 : AIR1991SC537 , in connection with an Order dated February 6,
1990, issued by the State of U.P., terminating the appointments of all Government Counsel (Civil, Criminal and
Revenue), in all the districts of the State of U.P. with effect from February 28, 1990 and directing the preparation of
fresh panels for making appointments in places of the existing incumbents, While quashing such general order it was
said:-
Viewed in any manner, the impugned circular dated February 6, 1990 is arbitrary. It terminates all the appointments
of Government Counsel in the districts of the State of Uttar Pradesh by an omnibus order, even though these
appointments were all individual. No common reason applicable to all of them justifying their termination in one
stroke on a reasonable ground has been shown. The submission on behalf of the State of Uttar Pradesh at the
hearing that many of them were likely to be re-appointed is by itself ample proof of the fact that there was total
non-application of mind to the individual cases before issuing the general order terminating all the appointments.
This was done in spite of the clear provisions in the L.R. Manual laying down detailed procedure for appointment,
termination and renewal of tenure and the requirement to first consider the existing incumbent for renewal of his
tenure and to take steps for a fresh appointment in his place only if the existing incumbent is not found suitable in
comparison to more suitable persons available for appointment at the time of renewal. In the case of existing
appointees, a decision has to be first reached about their non-suitability for renewal before deciding to take steps for
making fresh appointments to replace them. None of these steps were taken and no material has been produced to
show that any existing incumbent was found unsuitable for the office on objective assessment before the decision to
replace all by fresh appointees was taken. The prescribed procedure laid down in the L.R. Manual which has to
regulate exercise of this power was totally ignored.
10. In the present case, it appears to be an admitted position that appointments of the appellants as Assistant
District Government Counsel (Criminal) is governed by Section 24 of the Code, as well as different paragraphs of
Chapter VII of the Manual. It was not disputed on behalf of the State, that appellants shall be deemed to be
Additional Public Prosecutors within the meaning of Section 24 of the Code, although in the order of appointment
they have been designated as Assistant District Government Counsel (Criminal). The procedure prescribed in the
Manual can be observed and followed as supplemental to the provisions of Section 24 of the Code. Needless to say
that, if there is any conflict, then Section 24 of the Code being statutory in nature will override the procedure
prescribed in the Manual. The relevant part of Section 24 is as such:-
24. Public Prosecutors -(1) For every High Court, the Central Government or the State Government shall, after
consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public
Prosecutors, for conducting in such Court, any prosecution, appeal or other proceedings pn behalf of the Central
Government or State Government, as the case may be.
(2) ...
63
(3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more
Additional Public Prosecutors for the district: Provided that the Public Prosecutor or Additional Public Prosecutor
appointed for one district may be appointed also to be a Public Prosecutor as the case may be for another district.
(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who
are, in his opinion, fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district.
(5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor
for the district unless his name appears in the panel of names prepared by the District Magistrate under Sub-section
(4).
11. The Code prescribes the procedure for appointment of Public Prosecutor and Additional Public Prosecutor, for
the High Court and the District Courts by the State Government. The framers of the Code, were conscious of the
fact, that the Public Prosecutor and the Additional Public Prosecutor have an important role, while prosecuting, on
behalf of the State, accused persons, who are alleged to have committed one or the other offence. Because of that,
provisions have been made for their selection in the Code. It is for the Sessions Judge to assess the merit and
professional conduct of the persons recommended for such appointments and the District Magistrate to express his
opinion on the suitability of persons so recommended, from the administrative point of view. Sub-section (5) of
Section 24 provides that no person shall be appointed by the State Government as the Public Prosecutor or as an
Additional Public Prosecutor "unless his name appears in the panel of names prepared by the District Magistrate
under Sub-section (4)". The aforesaid section requires an effective and real consultation between the Sessions Judge
and the District Magistrate, about the merit and suitability of person to be appointed as Public Prosecutor or as an
Additional Public Prosecutor. That is why it requires, a panel of names of persons, to be prepared by the District
Magistrate in consultation with the Sessions Judge. The same is the position so far the Manual is concerned. It
enumerates in detail, how for purpose of initial appointment, extension or renewal, the District Judge who is also
the Sessions Judge, is to give his estimate of the quality of the work of the Counsel from the judicial standpoint and
the District Officer i.e. the District Magistrate is to report about the suitability, of such person, from administrative
point of view.
12. On behalf of the State, our attention was drawn to the expression "in his opinion" occurring in Sub-section (4)
of Section 24 of the Code. It was urged that as the Code vests power in the District Magistrate to consider the
suitability of the person concerned, for appointment, according to his opinion, there is not much scope of judicial
review by Courts, unless a clear case of malice on the part of the District Magistrate is made out. In view of the
series of judgments of this Court in Barium Chemicals Ltd. v. Company Law Board MANU/SC/0037/1966 :
[1967]1SCR898 , State of Assam v. Bharat Kala Bhandar Ltd. MANU/SC/0042/1967 : (1968)ILLJ25SC , Rohtas
Industries Ltd. v. S.D. Agarwal MANU/SC/0020/1968 : [1969]3SCR108 , The Purtabpur Company Ltd. v. Cane
Commissioner of Bihar MANU/SC/0016/1968 : [1969]2SCR807 and MA. Rasheed v. The State of Kerala
MANU/SC/0051/1974 : [1975]2SCR93 , it is almost settled that, although power has been vested in a particular
authority, in subjective terms, still judicial review is permissible.
13. In the present case the District & Sessions Judge strongly recommended extension for the appellants, saying that
so far their work and conduct were concerned, the same had been approved. But the District Magistrate, simply said
that on the inquiry at his level "reputation, professional work, behaviour and conduct of the appellants as
government counsel was not found in accordance with the public interest". The quality of the Counsel's work has to
be judged and assessed by the District & Sessions Judge. The District Magistrate is required to consider the
suitability of such person, from the administrative point of view. According to us, in view of the strong
recommendation about the quality of the appellants' professional work, the District Magistrate should have applied
his mind in consultation with the Sessions Judge, in respect of each individual case, instead of making a general and
identical comment against all the appellants.
14. Apart from that the mandate of Sub-section (4) of Section 24 is that "the District Magistrate shall, in
consultation with the Sessions Judge, prepare a panel of names of persons". Sub-section (5) of Section 24 prescribes
a statutory bar that no person shall be appointed by the State Government as the Public Prosecutor or Additional
Public Prosecutor for the district "unless his name appears in the panel of names prepared by the District Magistrate
under Sub-section (4)". When Sub-section (4) and Sub-section (5) of Section 24 of the Code, speak about
preparation of a panel, out of which appointments against the posts of Prosecutor or Additional Public Prosecutor
have to be made, then the Sessions Judge and the District Magistrate are required to consult and discuss the names
of the persons fit to be included in the panel and to include such names in the panel. The expressions "panel of
names of persons", do not mean that some names are to be suggested by the Sessions Judge and some comments
are to be made, in respect of those names by the District Magistrate, without proper consultation and discussion
64
over such names. The statutory mandate ought to have been complied with by the District Magistrate and the
Sessions Judge in its true spirit. In the facts of the present case, no such panel appears to have been prepared by the
District Magistrate in terms of Sub-section (4) of Section 24. As Section 24 of the Code does not speak about
extension or renewal of the term of the person so appointed, the same procedure, as provided under Sub-section (4)
of Section 24 of the Code, has to be followed. In the present case the District Magistrate, instead of having an
effective and real consultation with the District & Sessions Judge, simply made some vague and general comments
against the appellants, which cannot be held to be the compliance of the requirement of Sub-section (4) of Section
24.
15. In the case of Kumari Shrilekha Vidyarthi (supra), this Court was not concerned with the question regarding the
extension/renewal of the terms of the Government Counsel. The primary question which was examined by this
Court in that case, was as to whether it was open to the State Government by the impugned circular dated February
6, 1990, to terminate appointments of all the Government Counsel in the different districts of the State, by an
omnibus order, even though, those appointments were all individual. It was held that any such exercise of power by
the State Government cannot satisfy the test of Article 14 of the Constitution and, as such, was unreasonable and
arbitrary. In that connection reference was made to the Manual aforesaid and it was pointed out that the said
Manual has laid down detailed procedure for appointment, termination and renewal of the tenure of the District
Government Counsel. It was pointed out, that different paragraphs of the Manual require, first to consider the
existing incumbents for extension and renewal of their tenure and to take steps for fresh appointment in their place,
if the existing incumbents were not found suitable in comparison to more suitable persons available for
appointment at the time of the renewal.
16. As already mentioned above, Section 24 of the Code does not speak about the extension or renewal of the term
of the Public Prosecutor or Additional Public Prosecutor. But after the expiry of the term of the appointment of
persons concerned, it requires the same statutory exercise, in which either new persons are appointed or those who
have been working as Public Prosecutor or Additional Public Prosecutor, are again appointed by the State
Government, for a fresh term. The procedure prescribed in the Manual - to the extent - it is not in conflict with the
provisions of Section 24, shall be deemed to be supplementing the statutory provisions. But merely because there is
a provision for extension or renewal of the term, the same cannot be claimed as a matter of right.
17. It is that none of the appellants can claim, as a matter of right, that their terms should have been extended or
that they should be appointed against the existing vacancies, but, certainly, they can make a grievance that either they
have not received the fair treatment by the appointing authority or that the procedure prescribed in the Code and in
the Manual aforesaid, have not been followed. While exercising the power of judicial review even in respect of
appointment of members of the legal profession as District Government Counsel, the Court can examine whether
there was any infirmity in the "decision making process". Of course, while doing so, the Court cannot substitute its
own judgment over the final decision taken in respect of selection of persons for those posts. It was said in the case
of Chief Constable of the North Wales Police v. Evans. (1982) 3 All E.R. 141:-
The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the
authority, after according fair treatment, reaches on a matter which it is authorised or enjoined by law to decide for
itself a conclusion which is correct in the eyes of the court.
18. In the facts of the present case, the procedure prescribed by Section 24 of the Code have not been followed by
the District Magistrate. There is nothing on the records of the case to show that any panel, as required by Sub-
section (4) of Section 24, was prepared by the District Magistrate in consultation with the District & Sessions Judge.
The District Magistrate simply made some general comment in respect of the appellants, when the District &
Sessions Judge had put them in List 'A' of his recommendation. According to us, this shall not amount to either the
compliance of Sub-section (4) of Section 24 of the Code or Para 7.06(2) of the Manual. It appears there has been no
effective or real consultation between the Sessions Judge and the District Magistrate for preparation of the panel, as
contemplated by Sub-section (4) of Section 24 of the Code.
19. The members of the legal profession are required to maintain high standard of legal ethics and dignity of
profession. They are not supposed to solicit work or seek mandamus from courts in matters of professional
engagements. We have been persuaded to interfere in these matters to a limited extent, as we are satisfied that there
is patent infraction of the statutory provisions of the Code. As we are of the view that the District Magistrate has
not performed his statutory duty as enjoined by law, the appeals of the appellants have to be allowed.
20. In the result, the appeals are allowed. We direct the District Magistrate, Moradabad, to perform his statutory
duty afresh, in accordance with the requirement of Section 24 of the Code read with the relevant paragraphs of
65
Chapter VII of the Manual, which are not inconsistent with Section 24 of the Code, so far the appellants are
concerned, if the vacancies are still there. The necessary steps shall be taken preferably within four months from the
date of this judgment. The State Government shall thereafter perform its part in accordance with Section 24 and
different paragraphs of the Manual which are applicable in the facts and circumstances of the case. We make it clear
that we are not expressing any opinion on the merit of the claim of the appellants to get extension or appointment
against the posts of Assistant District Government Counsel (Criminal). There will be no order as to costs.
CIVIL APPEALS NOS. 386 & 387 OF 1993
21. So far the appellants of these appeals are concerned, their names were put under List 'B' by the District &
Sessions Judge in his recommendation saying that they were "average lawyers". Their case stands on a different
footing. The District & Sessions Judge, who is required to express his opinion on the merit and the conduct of the
persons recommended for appointment or extension of the period as District Government Counsel, has expressed
the opinion that appellants are "average lawyers", and has put them in List 'B'. In other words, neither the District &
Sessions Judge has recommended the case of the appellants of these appeals for extension nor the District
Magistrate. Their case cannot be treated at part with the appellants of the other appeals. In such a situation, no
useful purpose will be served by directing the District Magistrate to perform his statutory duty, as required by Sub-
section (4) of Section 24 of the Code again, even in respect of these appellants. Accordingly, these appeals are
dismissed. There will be no order as to costs.
66
MANU/SC/0157/1997
Equivalent Citation: 1997(21)ACR277(SC), AIR1997SC610, 1997(1)ALD(Cri)248, 1998(46)BLJR161,

1997CriLJ743, 1996(4)Crimes233(SC), (1997)2GLR1631, JT1997(1)SC1, RLW1997(1)SC94, 1996(9)SCALE298,
(1997)1SCC416, [1996]Supp10SCR284
Writ Petition. (Crl) No. 539 of 1986.
Appellants:D.K. Basu
Vs.
Respondent: State of West Bengal
Hon'ble Judges:
Kuldip Singh and Dr. A. S. Anand, JJ.
ORDER
Dr. Anand, J.
1. The Executive Chairman, Legal Aid Services, West Bengal, a non-political organisation registered under the
Societies Registration Act, on 26th August, 1986 addressed a letter to the Chief Justice of India drawing his attention
to certain news items published in the Telegraph dated 20, 21 and 22 of July, 1986 and in the Statesman and Indian
Express dated 17th August, 1986 regarding deaths in police lock-ups and custody. The Executive Chairman after
reproducing the news items submitted that it was imperative to examine the issue in depth and to develop "custody
jurisprudence" and formulate modalities for awarding compensation to the victim and/or family members of the
victim for atrocities and death caused in police custody and to provide for accountability of the officers concerned.
It was also stated in the letter that efforts are often made to hush up the matter of lock-up deaths and thus the crime
goes unpunished and "flourishes". It was requested that the letter alongwith the news items be treated as a writ
petition under "public interest litigation" category.
2. Considering the importance of the issue raised in the letter and being concerned by frequent complaints regarding
custodial violence and deaths in police lock up, the letter was treated as a writ petition and notice was issued on
9.2.1987 to the respondents.
3. In response to the notice, the State of West Bengal filed a counter. It was maintained that the police was not
hushing up any matter of lock-up death and that wherever police personnel were found to the responsible for such
death, action was being initiated against them. The respondents characterised the writ petition as misconceived,
misleading and untenable in law.
4. While the writ petition was under consideration a letter addressed by Shri Ashok Kumar Johri on 29.7.87 to
Hon'ble Chief Justice of India drawing the attention of this Court to the death of one Mahesh Bihari of Pilkhana,
Aligarh in police custody was received. That letter was also treated as a writ petition and was directed to be listed
alongwith the writ petition filed by Shri D.K. Basu. On 14.8.1987 this Court made the following order:
In almost every states there are allegations and these allegations are now increasing in frequency of deaths in custody
described generally by newspapers as lock-up deaths. At present there does not appear to be any machinery to
effectively deal with such allegations. Since this is an all India question concerning all States, it is desirable to issue
notices to all the State Governments to find out whether they are desire to say anything in the matter. Let notices
issue to all the State Governments. Let notice also issue to the Law Commission of India with a request that suitable
suggestions may be made in the matter. Notice be made returnable in two months from today.
5. In response to the notice, affidavits have been filed on behalf of the States of West Bengal, Orissa, Assam,
Himachal Pradesh, Madhya Pradesh, Haryana, Tamil Nadu, Meghalaya, Maharashtra and Manipur. Affidavits have
also been filed on behalf of Union Territory of Chandigarh and the Law Commission of India.
67
6. During the course of hearing of the writ petitions, the Court felt necessity of having assistance from the Bar and
Dr. A.M. Singhvi, senior advocate was requested to assist the Court as amicus curiae.
7. Learned Counsel appearing for different States and Dr. Singhvi, as a friend of the court, presented the case ably
and though the effort on the part of the States initially was to show that "everything was well" within their
respective States, learned Counsel for the parties, as was expected of them in view of the importance of the issue
involved, rose above their respective briefs and rendered useful assistance to this Court in examining various facets
of the issue and made certain suggestions for formulation of guidelines by this Court to minimise, if not prevent,
custodial violence and for award of compensation to the victims of custodial violence and the kith and kin of those
who die in custody on account of torture.
8. The Law Commission of India also in response to the notice issued by this Court forwarded a copy of the 113th
Report regarding "Injuries in police custody and suggested incorporation of Section 114-B in the Indian Evidence
Act."
9. The importance of affirmed rights of every human being need no emphasis and, therefore, to deter breaches
thereof becomes a sacred duty of the Court, as the custodian and protector of the fundamental and the basic human
rights of the citizens. Custodial violence, including torture and death in the lock ups, strikes a blow at the Rule of
Law, which demands that the powers of the executive should not only be derived from law but also that the same
should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed
by the persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform
and authority in the four walls of a police station or lock-up, the victim being totally helpless. The protection of an
individual from torture and abuse by the police and other law enforcing officers is a matter of deep concern in a free
society. These petitions raise important issues concerning police powers, including whether monetary compensation
should be awarded for established infringement of the Fundamental Rights guaranteed by Articles 21 and 22 of the
Constitution of India. The issues are fundamental.
10. "Torture" has not been defined in the Constitution or in other penal laws. 'Torture' of a human being by another
human being is essentially an instrument to impose the will of the 'strong' over the 'weak' by suffering. The word
torture today has become synonymous with the darker side of the human civilisation.
Torture is a wound in the soul so painful that sometimes you can almost touch it, but it is also such intangible that
there is no way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone paralyzing as
sleep and dark as the abyss. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including
yourself.
Adriana P. Bartow
11. No violation of any one of the human rights has been the subject of so many Conventions and Declarations as
'torture'- all aiming at total banning of it in all forms, but inspite of the commitments made to eliminate torture, the
fact remains that torture is more widespread now than ever before. "Custodial torture" is a naked violation of
human dignity and degradation which destroys, to a very large extent, the individual personality. It is a calculated
assault on human dignity and whenever human dignity is wounded, civilisation takes a step backward-flag of
humanity must on each such occasion fly half-mast.
12. In all custodial crimes what is of real concern is not only infliction of body pain but the mental agony which a
person undergoes within the four walls of police station or lock-up. Whether it is a physical assault or rape in police
custody, the extent of trauma, a person experiences is beyond the purview of law.
13. "Custodial violence" and abuse of police power is not only peculiar to this country but it is widespread. It has
been the concern of international community because the problem is universal and the challenge is almost global.
The Universal Declaration of Human Rights in 1948, which marked the emergence of a worldwide trend of
protection and guarantee of certain basic human rights, stipulates in Article 5 that "No one shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment." Despite the pious declaration, the crime
continues unabated, though every civilised nation shows its concern and takes steps for its eradication.
14. In England, torture was once regarded as a normal practice to get information regarding the crime, the
accomplices and the case property or to extract confessions, but with the development of common law and more
radical ideas imbibing human thought and approach, such inhuman practices were initially discouraged and
68
eventually almost done away with, certain aberrations here and there notwithstanding. The police powers of arrest,
detention and interrogation in England were examined in depth by Sir Cyril Philips Committee-'Report of a Royal
Commission on Criminal Procedure' (Command-Papers 8092 of 1981). The report of the Royal Commission is,
instructive. In regard to the power of arrest, the Report recommended that the power to arrest without a warrant
must be related to and limited by the object to be served by the arrest, namely, to prevent the suspect from
destroying evidence or interfering with witnesses or warning accomplices who have not yet been arrested or where
there is a good reason to suspect the repetition of the offence and not to every case irrespective of the object sought
to be achieved.
15. The Royal Commission suggested certain restrictions on the power of arrest on the basis of the 'necessity
principle'. The Royal Commission said:
...we recommend that detention upon arrest for an offence should continue only on one or more for the following
criteria:
(a) the person's unwillingness to identify himself so that a summons may be served upon him;
(b) the need to prevent the continuation or repetition of that offence;
(c) the need to protect the arrested person himself or other persons or property;
(d) the need to secure of preserve evidence of or relating to that offence or to obtain such evidence from the suspect
by questioning him; and
(e) the likelihood of the person failing to appear at court to answer any charge made against him.
The Royal Commission also suggested:
To help to reduce the use of arrest we would also propose the introduction here of a scheme that is used in Ontario
enabling a police officer to issue what is called an appearance notice. That procedure can be used to obtain
attendance at the police station without resorting to arrest provided a power to arrest exists, for example to be finger
printed or to participate in an identification parade. It could also be extended to attendance for interview at a time
convenient both to the suspect and to the police officer investigating the case....
16.The power of arrest, interrogation and detention has now been streamlined in England on the basis of the
suggestions made by the Royal Commission and incorporated in Police and Criminal Evidence Act, 1984 and the
incidence of custodial violence has been minimised there to a very great extent.
17. Fundamental rights occupy a place of pride in the Indian Constitution. Article 21 provides "no person shall be
deprived of his life or personal liberty except according to procedure established by law". Personal liberty, thus, is a
sacred and cherished right under the Constitution. The expression "life or personal liberty" has been held to include
the right to live with human dignity and thus it would also include within itself a guarantee against torture and
assault by the State or its functionaries. Article 22 guarantees protection against arrest and detention in certain cases
and declares that no person who is arrested shall be detained in custody without being informed of the grounds of
such arrest and he shall not be denied the right to consult and defend himself by a legal practitioner of his choice.
Clause (2) of Article 22 directs that the person arrested and detained in custody shall be produced before the nearest
Magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journey from the place of
arrest to the court of the Magistrate. Article 20(3) of the Constitution lays down that a person accused of an offence
shall not be compelled to be a witness against himself. These are some of the constitutional safeguards provided to a
person with a view to protect his personal liberty against any unjustified assault by the State. In tune with the
constitutional guarantee a number of statutory provisions also seek to protect personal liberty, dignity and basic
human rights of the citizens. Chapter V of Criminal Procedure Code, 1973 deals with the powers of arrest of a
person and the safeguards which are required to be followed by the police to protect the interest of the arrested
person. Section 41, Cr. P.C. confers powers on any police officer to arrest a person under the circumstances
specified therein without any order or a warrant of arrest from a Magistrate. Section 46 provides the method and
manner of arrest. Under this Section no formality is necessary while arresting a person. Under Section 49, the police
is not permitted to use more restraint than is necessary to prevent the escape of the person. Section 50 enjoins every
police officer arresting any person without warrant to communicate to him the full particulars of the offence for
which he is arrested and the grounds for such arrest. The police officer is further enjoined to inform the person
69
arrested that he is entitled to be released on bail and he may arrange for sureties in the event of his arrest for a non-
bailable offence. Section 56 contains a mandatory provision requiring this police officer making an arrest without
warrant to produce the arrested person before a Magistrate without unnecessary delay and Section 57 echoes Clause
(2) of Article 22 of the Constitution of India. There are some other provisions also like Sections 53 54 and 167
which are aimed at affording procedural safeguards to a person arrested by the police. Whenever a person dies in
custody of the police, Section 176 requires the Magistrate to hold an enquiry into the cause of death.
18. However, inspite of the constitutional and statutory provisions aimed at safeguarding the personal liberty and life
of a citizen, growing incidence of torture and deaths in police custody has been a disturbing factor. Experience
shows that worst violations of human rights take place during the course of investigation, when the police with a
view to secure evidence or confession often resorts to third degree methods including torture and adopts techniques
of screening arrest by either not recording the arrest or describing the deprivation of liberty merely as a prolonged
interrogation. A reading of the morning newspapers almost everyday carrying reports of dehumanising torture,
assault, rape and death in custody of police or other governmental agencies is indeed depressing. The increasing
incidence of torture and death in custody has assumed such alarming proportions that it is affecting the credibility of
the Rule of Law and the administration of criminal justice system. The community rightly feels perturbed. Society's
cry for justice becomes louder.
19. The Third Report of the National Police Commission in India expressed its deep concern with custodial
violence and lock-up deaths. It appreciated the demoralising effect which custodial torture was creating on the
society as a whole. It made some very useful suggestions. It suggested:
...An arrest during the investigation of a cognizable case may be considered justified in one or other of the following
circumstances:
(i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused
and bring his movements under restraint to infuse confidence among the terror stricken victims.
(ii) The accused is likely to abscond and evade and the processes of law.
(iii) The accused is given to violent behavior and is likely to commit further offences unless his movements are
brought under restraint.
(iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again. It
would be desirable to insist through departmental instructions that a police officer making an arrest should also
record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified
guidelines....
The recommendations of the Police Commission (supra) reflect the constitutional concomitants of the fundamental
right to personal liberty and freedom. These recommendations, however, have not acquired any statutory status so
far.
20. This Court in Joginder Kumar v. State MANU/SC/0311/1994 : 1994CriLJ1981 , (to which one of us, namely,
Anand, J. was a party) considered the dynamics of misuse of police power of arrest and opined:
No arrest can be made because it is lawful for the police officer to do so. The existence of the power of arrest is one
thing. The justification for the exercise of it is quite another.... No arrest should be made without a reasonable
satisfaction reached after some investigation about the genuineness and bonafides of a complaint and a reasonable
belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person his liberty is a
serious matter.
21. Joinder Kumar's case (supra) involved arrest of a practising lawyer who had been called to the police station in
connection with a case under inquiry on 7.1.94. On not receiving any satisfactory account of his whereabouts the
family members of the detained lawyer preferred a petitioner in the nature of habeas corpus before this Court on
11.1.94 and in compliance with the notice the lawyer was produced on 14.1.94 before this Court. The police version
was that during 7.1.94 and 14.1.94 the lawyer was not in detention at all but was only assisting the police to detect
some cases. The detenue asserted otherwise. This Court was not satisfied with the police version. It was noticed that
though as that day the relief in habeas corpus petition could not be granted but the questions whether there had
been any need to detain the lawyer for 5 days and if at all he was not in detention then why was this Court not
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informed, were important questions which required an answer. Besides if there was detention for 5 days, for what
reason was he detained. The Court, therefore, directed the District Judge, Ghaziabad to make a detailed enquiry and
submit his report within 4 weeks. The Court vioced its concern regarding complaints of violations of human rights
during and after arrest. It said:
The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has
been receiving complaints about violations of human rights because of indiscriminate arrests. How are we to strike a
balance between the two?
....
A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties
and privileges. On the one hand, and individual duties, obligations and responsibilities on the others of weighing and
balancing the rights, liberties, and privileges of the single individual and those of individuals collectively; of simply
deciding what is wanted and where to put the weight and the emphasis of deciding which comes first-the criminal or
society, the law violator or the abider.
This Court then set down certain procedural "requirements" in cases of arrest.
22. Custodial death is perhaps one of the worst crimes in a civilised society governed by the Rule of Law. The rights
inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. We cannot
wish away the problem. Any form of torture or cruel, inhuman or degrading treatment would fall within the
inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the
functionaries of the Government become law breakers, it is bound to breed contempt for law and would encourage
lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchism. No
civilised nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a
policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the
spinal cord of human rights jurisprudence. The answer, indeed, has to be an emphatic 'No'. The precious right
guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials, detenues and other
prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as
are permitted by law.
23. In Neelabati Bahera v. State of Orissa MANU/SC/0307/1993 : 1993CriLJ2899 , (to which Anand, J. was a
party) this Court pointed out that prisoners and detenues are not denuded of their fundamental rights under Article
21 and it is only such restrictions as are permitted by law, which can be imposed on the enjoyment of the
fundamental rights of the arrestees and detenues. It was observed:
It is axiomatic that convicts, prisoners or undertrials are not denuded of their fundamental rights under Article 21
and it is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental
right by such persons. It is an obligation of the State to ensure that there is no infringement of the indefeasible
rights of a citizen to life, except in accordance with law, while the citizen is in its custody. The precious right
guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials or other prisoners in
custody, except according to procedure established by law. There is a great responsibility on the police or prison
authorities to ensure that the citizen in its custody is not deprived of his right to life. His liberty is in the very nature
of things circumscribed by the very fact of his confinement and therefore his interest in the limited liberty left to
him is rather precious. The duty of care on the part of the State is strict and admits of no exceptions. The
wrongdoer is accountable and the State is responsible if the person in custody of the police is deprived of his life
except according to the procedure established by law.
24. Instances have come to our notice where the police has arrested a person without warrant in connection with
the investigation of an offence, without recording the arrest, and the arrested person has been subjected to torture
to extract information from him for the purpose of further investigation or for recovery of case property or for
extracting confession etc. The torture and injury caused on the body of the arrestee has sometimes resulted into his
death. Death in custody is not generally shown in the records of the lock-up and every effort is made by the police
to dispose of the body or to make out a case that the arrested person died after he was released from custody. Any
complaint against such torture or death is generally not given any attention by the police officers because of ties of
brotherhood. No first information report at the instance of the victim or his kith and kin is generally entertained and
even the higher police officers turn a blind eye to such complaints. Even where a formal prosecution is launched by
the victim or his kith and kin, no direct evidence is available to substantiate the charge of torture or causing hurt
resulting into death, as the police lock-up where generally torture or injury is caused is away from the public gaze
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and the witnesses are either police men or co-prisoners who are highly reluctant to appear as prosecution witnesses
due to fear of retaliation by the superior officers of the police. It is often seen that when a complaint is made against
torture, death or injury, in police custody, it is difficult to secure evidence against the policemen responsible for
resorting to third degree methods since they are incharge of police station records which they do not find difficult to
manipulate. Consequently, prosecution against the delinquent officers generally results in acquittal. State of Madhya
Pradesh v. Shyamsunder Trivedi and Ors. MANU/SC/0722/1995 : (1995)4SCC262 is an apt case illustrative of the
observations made by us above. In that case, Nathu Banjara was tortured at police station, Rampura during the
interrogation. As a result of extensive injuries caused to him he died in police custody at the police station. The
defence set up by the respondent police officials at the trial was that Nathu had been released from police custody at
about 10.30 p.m. after interrogation on 13.10.1986 itself vide entry Ex. P/22A in the Roznamcha and that at about
7.00 a.m. on 14.10.1981, a death report Ex. P/9 was recorded at the police station. Rampura, at the instance of
Ramesh respondent No. 6, to the effect that he had found "one unknown person" near a tree by the side of the tank
rigging with pain in his chest and that as soon as respondent No. 6 reached near him, the said person died. The
further case set up by SI Trivedi, respondent No. 1, incharge of the police station was that after making a
Roznamcha entry at 7.00 a.m. about his departure from the police station he (respondent No. 1-Shyamsunder
Trivedi) and Constable Rajaram respondent proceeded to the spot where the dead body was stated to be lying for
conducting investigation under Section 174 Cr. P.C. He summoned Ramesh Chandra and Goverdhan respondents
to the spot and in their presence prepared a panchnama Ex. P/27 of the dead body recording the opinion therein to
the effect that no definite cause of death was known.
25. The First Additional Sessions Judge acquitted all the respondents of all the charges holding that there was no
direct evidence to connect the respondents with the crime. The State of Madhya Pradesh went up in appeal against
the order of acquittal and the High Court maintained the acquittal of respondents 2 to 7 but set aside the acquittal of
respondent No. 1, Shyamsunder Trivedi for offences under Section 218 201 and 342 IPC. His acquittal for the
offences under Section 302/149 and 147 IPC was, however, maintained. The State filed an appeal in this Court by
special leave. This Court found that the following circumstances had been established by the prosecution beyond
every reasonable doubt and coupled with the direct evidence of PWs 1, 3, 4, 8 and 18 those circumstances were
consistent only with the hypotheses of the guilt of the respondents and were inconsistent with their innocence:
(a) that the deceased had been brought alive to the police station and was last seen alive there on 13.1081;
(b) that the dead body of the deceased was taken out of the police station on 14.10.81 at about 2 p.m. for being
removed to the hospital;
(c) that SI Trivedi respondent No. 1, Ram Naresh Shukla, Respondent No. 3, Rajaram, respondent No. 4 and
Ganiuddin respondent No. 5 were present at the police station and had all joined hands to dispose of the dead body
of Nathu-Banjara;
(d) that SI Trivedi, respondent No. 1 created false evidence and fabricated false clues in the shape of documentary
evidence with a view to screen the offence and for that matter, the offender;
(e) SI Trivedi respondent in connivance with some of his subordinates, respondents herein had taken steps to
cremate the dead body in hot haste describing the deceased as a 'lavaris' though the identity of the deceased, when
they had interrogated for a sufficient long time was well known to them.
and opined that:
The observations of the High Court that the presence and participation of these respondents in the crime is
doubtful are not borne out from the evidence on the record and appear to be an unrealistic over simplification of
the tell tale circumstances established by the prosecution.
26. One of us (namely, Anand. J.) speaking for the Court went on to observe:
The trial court and the High Court, if we may say so with respect, exhibited a total lack of sensitivity and a 'could
not careless' attitude in appreciating the evidence on the record and thereby condoning the barbarous third degree
methods which are still being used, at some police stations, despite being illegal. The exaggerated adherence to and
insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground
realities, the fact situations and the peculiar circumstances of a given case, as in the present case, often results in
miscarriage of justice and makes the justice delivery system a suspect. In the ultimate analysis the society suffers and
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a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by
this type of an unrealistic approach of the Courts because it reinforces the belief in the mind of the police that no
harm would come to them, if an old prisoner dies in the lock-up, because there would hardly be any evidence
available to the prosecution to directly implicate them with the torture. The Courts, must not loose sight of the fact
that death in police custody is perhaps one of the worst kind of crime in a civilised society, governed by the rule of
law and poses a serious threat to an orderly civilised society.
This Court then suggested:
The Courts are also required to have a change in their outlook and attitude, particularly in cases involving custodial
crimes and they should exhibit more sensitivity and adopt a realistic rather than a narrow technical approach, while
dealing with the cases of custodial crime so that as far as possible within their powers, the guilty should not escape
so that the victim of the crime has the satisfaction that ultimately the Majesty of Law has prevailed.
27. The State appeal was allowed and the acquittal of respondents 1, 3, 4 and 5 was set aside. The respondents were
convicted for various offences including the offence under Section 304 Part 11/34 IPC and sentenced to various
terms of imprisonment and fine ranging from Rs. 20,000 to Rs. 50,000. The fine was directed to be paid to the heirs
of Nathu Banjara by way-of compensation. It was further directed:
The Trial Court shall ensure, in case the fine is deposited by the accused respondents, that the payment of the same
is made to the heirs of deceased Nathu Banjara, and the Court shall take all such precautions as are necessary to see
that the money is not allowed to fall into wrong hands and is utilised for the benefit of the members of the family of
the deceased Nathu Banjara, and if found practical by deposit in Nationalised Bank or post office on such terms as
the Trial. Court may in consultation with the heirs for the deceased consider fit and proper.
28. It needs no emphasis to say that when the crime goes unpunished, the criminals are encouraged and the society
suffers. The victim of crime or his kith and kin become frustrated and contempt for law develops. It was
considering these aspects that the Law Commission in its 113th Report recommended the insertion of Section 114B
in the Indian Evidence Act. The Law Commission recommend in its 113th Report that in prosecution of a police
officer for an alleged offence of having caused bodily injury to a person, if there was evidence that the injury was
caused during the period when the person was in the custody of the police, the Court may presume that the injury
was caused by the police officer having the custody of that person during that period. The Commission further
recommended that the Court, while considering the question of presumption, should have regard to all relevant
circumstances including the period of custody, statement made by the victim, medical evidence and the evidence
which the Magistrate may have recorded. Change of burden of proof was, thus, advocated. In Shyam Sunder
Trivedi's case (supra) this Court also expressed the hope that the Government and the legislature would give serious
thought to the recommendation of the law Commission. Unfortunately, the suggested amendment, has not been
incorporated in the statute so far. The need of amendment requires no emphasis - sharp rise in custodial violence,
torture and death in custody, justifies the urgency for the amendment and we invite Parliament's attention to it.
29. Police is, no doubt, under a legal duty and has legitimate right to arrest a criminals and to interrogate him during
the investigation of an offence but it must be remembered that the law does nor permit use of third degree methods
or torture of accused in custody during interrogation and investigation with a view to solve the crime. End cannot
justify the means. The interrogation and investigation into a crime should be in true sense purposeful to make the
investigation effective. By torturing a person and using third degree methods, the police would be accomplishing
behind the closed doors what the demands of our legal order forbid. No society can permit it.
30. How do we check the abuse of police power? Transparency of action and accountability perhaps are two
possible safeguards which this Court must insist upon. Attention is also required to be paid to properly develop
work culture, training and orientation of the police force consistent with basic human values. Training methodology
of the police needs restructuring. The force needs to be infused with basic human values and made sensitive to the
constitutional ethos. Efforts must be made to change the attitude and approach of the police personnel handling
investigations so that they do not sacrifice basic human values during interrogation and do not resort to
questionable forms of interrogation. With a view to bring in transparency, the presence of the counsel of the
arrestee at some point of time during the interrogation may deter the police from using third degree methods during
interrogation.
31. Apart from the police, there are several other governmental authorities also like Directorate of Revenue
Intelligence, Directorate of Enforcement, Coastal Guard, Central Reserve Police Force (CRPF), Border Security
Force (BSF), The Central Industrial Security Force (CISF), the State Armed Police, Intelligence Agencies like the
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Intelligence Bureau, R.A.W., Central Bureau of Investigation (CBI), CID, Traffic Police, Mounted Police and ITBP,
which have the power to detain a person and to interrogate him in connection with the investigation of economic
offences, offences under the Essential Commodities Act, Excise and Customs Act, Foreign Exchange Regulation
Act etc. There are instances of torture and death in custody of these authorities as well. In Re Death of Sawinder
Singh Grover MANU/SC/1433/1995 , (to which Kuldip Singh, J.) was a party) this Court took suo moto notice of
the death of Sawinder Singh Grover during his custody with the Directorate of Enforcement. After getting an
enquiry conducted by the Additional District Judge, which disclosed a prima facie case for investigation and
prosecution, this Court directed the CBI to lodge a FIR and initiate criminal proceedings against all persons named
in the report of the Additional District Judge and proceed against them. The Union of India/Directorate of
Enforcement was also directed to pay a sum of Rs. 2 lacs to the widow of the deceased by way of ex gratia payment
at the interim stage. Amendment of the relevant provisions of law to protect the interest of arrested person in such
cases too is a genuine need.
32. There is one other aspect also which needs our consideration. We are conscious of the fact that the police in
India have to perform a difficult and delicate task, particularly in view of the deteriorating law and order situation,
communal riots, political turmoil, student unrest, terrorist activities, and among others the increasing number of
underworld and armed gangs and criminals. Many hard core criminals like extremists, the terrorists, drug peddlers,
smugglers who have organised gangs, have taken strong roots in the society. It is being said in certain quarters that
with more and more liberalisation and enforcement of fundamental rights, it would lead to difficulties in the
detection of crimes committed by such categories of hardened criminals by soft peddling interrogation. It is felt in
those quarters that if we lay too much of emphasis on protection of their fundamental rights and human rights, such
criminals may go scot-free without exposing any element or iota of criminality with the result, the crime would go
unpunished and in the ultimate analysis the society would suffer. The concern is genuine and the problem is real. To
deal with such a situation, balanced approach is needed to meet the ends of justice. This is all the more so, in view
of the expectation of the society that police must deal with the criminals in an efficient and effective manner and
bring to book those who are involved in the crime. The cure cannot, however, be worse than the disease itself.
33. The response of the American Supreme Court to such an issue in Miranda v. Arizona, 384 US 436, is instructive.
The Court said:
A recurrent argument, made in these cases is that society's need for interrogation out-weights the privilege. This
argument is not unfamiliar to this Court. See e.g., Chambers v. Florida, 309 US 227 : 84 1 ed 716,: 60 S-Ct 472
(1940). The whole thrust of our foregoing discussion demonstrates that the Constitution has prescribed the rights of the
individual when confronted with the power of Government when it provided in the Fifth Amendment that an
individual cannot be compelled to be a witness against himself. That right cannot be abridged.
(Emphasis ours)
34. There can be no gain saying that freedom of an individual must yield to the security of the State. The right of
preventive detention of individuals in the interest of security of the State in various situations prescribed under
different statues has been upheld by the Courts. The right to interrogate the detenues, culprits or arrestees in the
interest of the nation, must take precedence over an individual's right to personal liberty. The latin maxim salus
populi est suprema lex (the safety of the people is the supreme law) and salus republican est suprema. lex)(safety of
the State is the supreme law) co-exist and are not only important and relevant but lie at the heart of the doctrine that
the welfare of an individual must yield to that of the community. The action of the State, however, must be "right,
just and fair". Using any form of torture for extracting any kind of information would neither be 'right nor just nor
fair' and, therefore, would be impermissible, being offensive to Article 21. Such a crime-suspect must be
interrogated-indeed subjected to sustained and scientific interrogation - determined in accordance with provisions of
law. He cannot, however, be tortured or subjected to third degree methods or eliminated with a view to elicit
information, extract confession or derive knowledge about his accomplices, weapons etc. His Constitutional right
cannot be abridged except in the manner permitted by law, though in the very nature of things there would be
qualitative difference in the method of interrogation of such a person as compared to an ordinary criminal.
Challenge of terrorism must be met with innovative ideas and approach. State terrorism is no answer to combat
terrorism. State terrorism would only provide legitimacy to 'terrorism'. That would be bad for the State, the
community and above all for the Rule of law. The State must, therefore, ensure that various agencies deployed by it
for combating terrorism act within the bounds of law and not become law unto themselves. That the terrorist has
violated human rights of innocent citizens may render him liable for punishment but it cannot justify the violation
of his human rights except in the manner permitted by law. Need, therefore, is to develop scientific methods of
investigation and train the investigators properly to interrogate to meet the challenge.
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35. In addition to the statutory and constitutional requirements to which we have made a reference, we are of the
view that it would be useful and effective to structure appropriate machinery for contemporaneous recording and
notification of all cases of arrest and detention to bring in. transparency and accountability. It is desirable that the
officer arresting a person should prepare a memo of his arrest at the time of arrest in the presence of at least one
witness who may be a member of the family of the arrestee or a respectable person of the locality from where the
arrest is made. The date and time of arrest shall be recorded in the memo which must also be counter signed by the
arrestee.
36. 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 tags with their designations. The particulars of all such police personnel
who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest
and such memo shall be attested by atleast one witness, who may be either a member of the family of the arrestee or
a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and
shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation
center or other lock-up, shall be entitled to have one friend or relative or other person known to him or having
interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the
particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the
arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend
or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and
the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as
soon as he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also
disclose the name of the next friend of the person who has been informed of the arrest and the names and
particulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor
injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both
by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a 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
State or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaqa
Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the
interrogation.
(11) A police control room should be provided at all district and state headquarters, where information regarding the
arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12
hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.
37. Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned
official liable for departmental action, also render him liable to be punished for contempt of court and the
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proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction
over the matter.
38. 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.
39. 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.
40. The requirements mentioned above shall be forwarded to the Director General of Police and the Home
Secretary of every State/Union Territory and it shall be their obligation to circulate the same to every police station
under their charge and get the same notified at every police station at a conspicuous place. It would also be useful
and serve larger interest to broadcast the requirements on the All India Radio besides being shown on the National
network of Doordarshan and by publishing and distributing pamphlets in the local language containing these
requirements for information of the general public. Creating awareness about the rights of the arrestee would in our
opinion be a step in the right direction to combat the evil of custodial crime and bring in transparency and
accountability. It is hoped that these requirements would help to curb, if not totally eliminate, the use of
questionable methods during interrogation and investigation leading to custodial commission of crimes.
PUNITIVE MEASURES
UBI JUS IBI REMEDIUM-There is no wrong without a remedy. The law wills that in every case where a man is
wronged and undamaged he must have a remedy. A mere declaration of invalidity of an action or finding of
custodial violence or death in lock-up, does not by itself provide any meaningful remedy to a person whose
fundamental right to life has been infringed. Much more needs to be done.
41. Some punitive provisions are contained in the Indian Penal Code which seek to punish violation of right to life.
Section 220 provides for punishment to an officer or authority who detains or keeps a person in confinement with a
corrupt or malicious motive. Sections 330 and 331 provide for punishment of those who inflict injury or grievous
hurt or a person to extort confession or information in regard to commission of an offence. Illustrations (a) and (b)
to Section 330 make a police officer guilty of torturing a person in order to induce him to confess the commission
of a crime or to induce him to point out places where stolen property is deposited. Section 330, therefore, directly
makes torture during interrogation and investigation punishable under the Indian Penal Code. These statutory
provisions, are however, inadequate to repair the wrong done to the citizens. Prosecution of the offender is an
obligation of the State in case of every crime but the victim of crime needs to be compensated monetarily also. The
Court, where the infringement of the fundamental right is established, therefore, cannot stop by giving a mere
declaration. It must proceed further and give compensatory relief, not by way of damages as in a civil action but by
way of compensation under the pubic law jurisdiction for the wrong done, due to breach of public duty by the State
of not protecting the fundamental right to life of the citizen. To repair the wrong done and give judicial redress for
legal injury is a compulsion of judicial conscience.
42. Article 9(5) of the International Covenant on Civil and Political Rights, 1966 (ICCPR) provides that "anyone
who has been the victim of unlawful arrest or detention shall have enforceable right to compensation". Of course,
the Government of India at the time of its ratification (of ICCPR) in 1979 had made a specific reservation to the
effect that the Indian Legal system does not recognise a right to compensation for victims of unlawful arrest or
detention and thus did not become a party to the Covenant. That reservation, however, has now lost its relevance in
view of the law laid down by this Court in a number of cases awarding compensation for the infringement of the
fundamental right to life of a citizen. See with advantage Rudal Shah v. State of Bihar MANU/SC/0380/1983 :
1983CriLJ1644 ; Sebastian M. Hongrey v. Union of India MANU/SC/0163/1984 : [1984]3SCR22 ; Bhim Singh v.
State of J and K MANU/SC/0064/1985 : 1986CriLJ192 and Saheli v. Commissioner of Police, Delhi
MANU/SC/0478/1989 : AIR1990SC513 . There is indeed no express provision in the Constitution of India for
grant of compensation for violation of a fundamental right to life, nonetheless, this Court has judicially evolved a
right to compensation in cases of established unconstitutional deprivation of personal liberty or life.
43. Till about two decades ago the liability of the Government for tortious act of its public servants was generally
limited and the person affected could enforce his right in tort by filing a civil suit and there again the defence of
sovereign immunity was allowed to have its play. For the violation of the fundamental right to life or the basic
human rights, however, this Court has taken the view that the defence of sovereign immunity is not available to the
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State for the tortious acts of the public servants and for the established violation of the rights guranteed by Article
21 of the Constitution of India. In Neelabati Behera v. State, (supra) the decision of this Court in Kasturi Lal Ralia
Ram Jain v. State of U.P. MANU/SC/0086/1964 : (1966)IILLJ583SC , wherein the plea of sovereign immunity had
been upheld in a case of vicarious liability of the State for the tort committed by its employees was explained thus:
In this context, it is sufficient to say that the decision of this Court in Kasturilal upholding the State's plea of
sovereign immunity for tortious acts of its servants is confined to the sphere of liability in tort, which is distinct
from the State's liability for contravention of fundamental rights to which the doctrine of sovereign immunity has
no application in the constitutional scheme, and is no defence to the constitutional remedy under Articles 32 and
226 of the Constitution which enables award of compensation for contravention of fundamental rights, when the
only practicable mode of enforcement of the fundamental rights can be the award of compensation. The decisions
of this Court in Rudul Sah and others in that line relate to award of compensation for contravention of fundamental
rights, in the constitutional remedy under Articles 32 and 226 of the Constitution. On the other hand, Kasturilal
related to the value of goods seized and not returned to the owner due to the fault of Government Servants, the
claim being of damages for the tort of conversion under the ordinary process, and not a claim for compensation for
violation of fundamental rights. Kasturilal is, therefore, inapplicable in this context and distinguishable.
44. The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and
liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in
addition to the claim available in private law for damages for tortious acts of the public servants. Public law
proceedings serve a different purpose than the private law proceedings. Award of compensation for established
infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in
public law since the purpose of public law is not only to civilise public power but also to assure the citizens that they
live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation
in proceedings under Article 21 and 226 of the Constitution of India for the established violation of the
fundamental rights guaranteed under Article 21, is an exercise of the Courts under the public law jurisdiction for
penalising the wrong doer and fixing the liability for the public wrong on the State which failed in the discharge of
its public duty to protect the fundamental rights of the citizen.
45. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the
courts too much, as the protector and custodian of the indefeasible rights of the citizens. The courts have the
obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and
expected to respond to their aspirations. A Court of law cannot close its consciousness and aliveness to stark
realities. Mere punishment of the offender cannot give much solace to the family of the victim-civil action for
damages is a long drawn and cumbersome judicial process. Monetary compensation for redressal by the Court
finding the infringement of the indefeasible right to life of the citizen is, therefore, a useful and at times perhaps the
only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have
been the bread winner of the family.
46. In Nilabati Bahera's case (supra), it was held:
Adverting to the grant of relief to the heirs of a victim of custodial death for the infraction or invasion of his rights
guaranteed under Article 21 of Constitution of India, it is not always enough to relegate him to the ordinary remedy
of a civil suit to claim damages for the tortious act of the State as that remedy in private law indeed is available to the
aggrieved party. The citizen complaining of the infringement of the indefeasible right under Article 21 of the
Constitution cannot be told that for the established violation of the fundamental right to life, he cannot get any
relief under the public law by the courts exercising writ jurisdiction. The primary source of the public law
proceedings stems from the prerogative writs and the courts have, therefore, to evolve new tools to give relief in
public law by moulding it according to the situation with a view to preserve and protect the Rule of Law, while
concluding his first Hamlyn Lecture in 1949 under the title "Freedom under the Law" Lord Denning in his own
style warned:
No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure
that they will sometimes do things which they ought not to do: and will not do things that they ought to do. But if
and when wrongs are thereby suffered by any of us what is the remedy? Our procedure for securing our personal
freedom is efficient, our procedure for preventing the abuse of power is not. Just as the pick and shovel is no longer
suitable for the winning of coal, so also the procedure of mandamus, certiorari, and actions on the case are not
suitable for the winning of freedom in the new age. They must be replaced by new and up-to date machinery, by
declarations, injunctions and actions for negligence... This is not the task of parliament.... The courts must do this.
77
Of all the great tasks that lie ahead this is the greatest. Properly exercised the new powers of the executive lead to
the welfare state; but abused they lead to a totalitarian state. None such must ever be allowed in this country.
47. A similar approach of redressing the wrong by award of monetary compensation against the State for its failure
to protect the fundamental rights of the citizen has been adopted by the Courts of Ireland, which has a written
constitution, guaranteeing fundamental rights, but which also like the Indian Constitution contains no provision of
remedy for the infringement of those rights. That has, however, not prevented the Courts in Ireland from
developing remedies, including the award of damages, not only against individuals guilty of infringement, but against
the State itself.
48. The informative and educative observations of O'Dalaigh CJ in The State (At the Prosecution of Quinn) v. Ryan
(1965) IR 70 122, deserve special notice. The Learned Chief Justice said:
It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights
should be set at nought or circumvented. The intention was that rights of substance were being assured to the
individual and that the Courts were the custodians of those rights. As a necessary corollary, it follows that no one can
with impunity set these rights at bought or circumvent them, and that the Court's powers in this regard are as ample as the defence of the
Constitution requires.
49. In Byrne v. Ireland (1972) IR 241, Walsh, J. opined at p 264:
In several parts in the Constitution duties to make certain provisions for the benefit of the citizens are imposed on
the State in terms which bestow rights upon the citizens and, unless some contrary provision appears in the
Constitution, the Constitution must be deemed to have created a remedy for the enforcement of these rights. It follows that, where the
right is one guaranteed by the State, it is against the State that the remedy must be sought if there has been a failure to discharge the
constitutional obligation imposed.
50. In Maharaj v. Attorney General of Trinidad and Tobago (1978) 2 All E.R. 670, The Privy Council while
interpreting Section 6 of the Constitution of Trinidad and Tobago held that though not expressly provided therein,
it permitted an order for monetary compensation, by way of 'redress' for contravention of the basic human rights
and fundamental freedoms. Lord Diplock speaking for the majority said:
It was argued on behalf of the Attorney General that Section 6(2) does not permit of an order for monetary
compensation despite the fact that this kind of redress was ordered in Jaundou v. Attorney General of Guvana.
Reliance was placed on the reference in the sub-section to 'enforcing, or securing the enforcement of, any of the
provisions of the said foregoing sections' as the purpose for which orders etc. could be made. An order for payment
of compensation, it was submitted, did not amount to the enforcement of the rights that had been contravened. In
their Lordships' view an order for payment of compensation when a right protected under Section 1 'has been'
contravened is clearly a form of 'redress' which a person is entitled to claim under Section 6(1) and may well be the
only practicable form of redress, as by now it is in the instant case. The jurisdiction to make such an order is
conferred on the High Court by para (a) of Section 6(2), viz. jurisdiction 'to hear and determine any application
made by any person in pursuance of Sub-section (1) of this section'. The very wise powers to make orders, issue
writs and give directions are ancillary to this.
51. Lord Diplock then went on to observe (at page 680):
Finally, their Lordships would say something about the measure of monetary compensation recoverable under
Section 16 where the contravention of the claimant's constitutional rights consists of deprivation of liberty otherwise
than by due process of law. The claim is not a claim in private law for damages for the tort of false imprisonment,
under which the damages recoverable are at large and would include damages for loss of reputation. It is a claim in
public law for compensation for deprivation of liberty alone.
52. In Simpson v. Attorney General [Baigent's case] (1994) NZLR. 667 the Court of Appeal in New Zealand dealt
with the issue in a very elaborate manner by reference to a catena of authorities from different jurisdictions. It
considered the applicability of the doctrine of vicarious liability for torts, like unlawful search, committed by the
police officials which violate the New Zealand Bill of Rights Act, 1990. While dealing with the enforcement of rights
78
and freedoms as guaranteed by the Bill of Rights for which no specific remedy was provided. Hardie Boys, J.
observed:
The New Zealand Bill of Rights Act, unless it is to be no more than an empty statement, is a commitment by the
Crown that those who in the three branches of the government exercise its functions, powers and duties will
observe the rights that the Bill affirms. It is I consider implicit in that commitment indeed essential to its worth, that
the Courts are not only to observe the Bill in the discharge of their own duties but are able to grant appropriate and
effective remedies where rights have been infringed. I see no reason to think that this should depend on the terms
of a written constitution. Enjoyment of the basic human rights are the entitlement of every citizen, and their
protection the obligation of every civilised state. They are inherent in and essential to the structure of society. They
do not depend on the legal or constitutional form in which they are declared. The reasoning that has led the Privy
Council and the Courts of Ireland and India to the conclusions reached in the cases to which I have referred (and
they are but a sample) is in my opinion equally valid to the New Zealand Bill of Rights Act if it is to have life and
meaning.
53. The Court of Appeal relied upon the judgments of the Irish Courts the Privy Council and referred to the law laid
down in Nilabati Behera v. State, (supra) thus:
Another valuable authority comes from India, where the Constitution empowers the Supreme Court to enforce
rights guaranteed under it. In Nilabati Bahera v. State of Orissa (1993) Crl. LJ 2899, the Supreme Court awarded
damages against the State to the mother of a young man beaten to death in police custody. The Court held that its
power of enforcement imposed a duty to "forge new tools", of which compensation was an appropriate one where
that was the only mode of redress available. This was not a remedy in tort, but one in public law based on strict
liability for the contravention of fundamental rights to which the principle of sovereign immunity does not apply.
These observations of Anand, J. at p. 2912 may be noted.
The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts
too much as protector and guarantor of the indefeasible rights of the citizens. The courts have the obligation to
satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to
respond to their aspirations. The purpose of public law is not only to civilize public power but also to assure the
citizen that they live under a legal system which aims to protect their interests and preserve their rights.
54. Each of the five members of the Court of Appeal in Simpson's case (supra) delivered a separate judgment but
there was unanimity of opinion regarding the grant of pecuniary compensation to the victim, for the contravention
of his rights guaranteed under the Bill of Right Act, notwithstanding the absence of an express provision in that
behalf in the Bill of Rights Act.
55. Thus, to sum up, it is now a well accepted proposition in most of the jurisdictions, that monetary or pecuniary
compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for
redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the
State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which
the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from
the State, which shall have the right to be indemnified by the wrong doer. In the assessment of compensation, the
emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds
and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective
of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law, is
duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other
action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with
respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of
compensation will, of course, depend upon the peculiar facts of each case and no strait jacket formula can be
evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the
citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of
them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may
in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil
suit.
56. Before parting with this judgment we wish to place on record our appreciation for the learned Counsel
appearing for the States in general and Dr. A.M. Singhvi, learned senior counsel who assisted the Court amicus
curiae in particular for the valuable assistance rendered by them.
79
80
MANU/SC/0368/2021
Equivalent Citation: (2021)5SCC560
Sunil Kumar and Ors.

Vs.
The State of Uttar Pradesh
Hon'bleJudges/Coram:
Dinesh Maheshwari and Aniruddha Bose, JJ.
JUDGMENT
1. Leave granted.
2. In view of the order dated 13.04.2018 passed by this Court while granting permission to file Special Leave
Petition and issuing notice, the scope of this appeal is restricted to the question of sentence; and the Appellants
herein, after their conviction of offences Under Sections 363, 366 and 376(1) of the Indian Penal Code, 1860 ('IPC'),
have already undergone 13 years and 2 months of imprisonment. In the given circumstances, we have heard learned
Counsel for the parties finally at this stage itself.
2.1. Even the short question involved in this matter carries the peculiarities of its own, as noticed infra.
3. As regards relevant background aspects, suffice it to notice that on 03.02.2008, Case Crime No. 44 of 2008 for
offences Under Sections 363 and 366 Indian Penal Code, 1860 ('IPC') came to be registered at Police Station, T.P.
Nagar, Meerut on the basis of a written complaint that the complainant's 13-year-old daughter, who had gone to
school on 15.01.2008, had not returned; and after a lot of efforts, the complainant came to know that the Accused-
Appellant No. 2 Faimuddin @ Feru @ Sonu had enticed his daughter. In the course of investigation, the victim girl
was recovered and, ultimately, the charge-sheet was filed against the Appellants for offences Under Sections 363,
366 and 376 Indian Penal Code. They were tried in Sessions Trial No. 575 of 2008 wherein, the Court of Additional
District and Sessions Judge, Fast Track Court No. 5, Meerut, in its judgment and order dated 12.09.2008, convicted
them of offences Under Sections 363, 366 and 376(1) Indian Penal Code.
4. After having recorded conviction as aforesaid, the Trial Court sentenced the Appellants to several punishments in
the following manner: rigorous imprisonment for a term of 5 years with fine of Rs. 2,000/- and in default, further
imprisonment for 6 months for the offence Under Section 363 Indian Penal Code; rigorous imprisonment for a
term of 7 years with fine of Rs. 3,000/- and in default, further imprisonment for 1 year for the offence Under
Section 366 Indian Penal Code; and rigorous imprisonment for a term of 10 years with fine of Rs. 5,000/- and in
default, further imprisonment for 1½ years for the offence Under Section 376(1) Indian Penal Code. However, the
Trial Court did not specify as to whether the punishments of imprisonment would run concurrently or
consecutively; and if they were intended to run consecutively, the Trial Court did not specify the order in which one
punishment of imprisonment was to commence after expiration of the other.
5. As against the judgment and order of the Trial Court, only the Appellant No. 1 Sunil Kumar @ Sudhir Kumar
preferred an appeal before the High Court of Judicature at Allahabad, being Criminal Appeal No. 7399 of 2008.
However, learned Counsel for the Appellant before the High Court confined his arguments only on the point of
sentence and did not press on the point of conviction. Thus, the conviction recorded by the Trial Court attained
finality, for the Appellant No. 2 having not filed the appeal and for the Appellant No. 1, even after filing the appeal,
having not challenged the same. Accordingly, the High Court, examined only the question of sentence qua the
Appellant No. 1 and, in its impugned judgment and order dated 21.02.2018, while holding that the default
stipulations were rather disproportionate, proceeded to modify the order of sentencing only to the extent that in the
event of default in payment of fine, the Accused-Appellant (i.e., the Appellant No. 1) shall undergo additional
imprisonment for the terms of 5 months, 3 months and 1 month for the offences Under Sections 376(1), 366 and
363 Indian Penal Code respectively. However, the High Court, even after taking note of the fact that the Accused-
Appellant had already undergone 10 years of imprisonment, did not consider that the Trial Court had neither
provided for concurrent running of sentences nor provided the order of running of sentences, if they were to run
81
consecutively. Interestingly, while the Trial Court sentenced the Appellants for offences Under Sections 363, 366
and 376(1) in that order, the High Court provided for modification of default stipulations in converse order i.e., for
offences Under Sections 376(1), 366 and 363 Indian Penal Code respectively.
6. For the reason that the decisions aforesaid were silent on the point of concurrent or consecutive running of
sentences, the Jail Superintendent, District Jail, Meerut, while issuing certificates of confinement on 14.03.2018,
stated that the Accused-Appellants had undergone 10 years and 1 month of imprisonment but, there being no
mention in the sentencing order about concurrent running of sentences, they were serving 22 years of
imprisonment. Faced with such a predicament, the Accused-Appellants have approached this Court.
7. While confining his arguments to the question of sentence, learned Counsel for the Appellants Mr. Amit Pai has
industriously put forward the submissions with reference to Section 31 of the Code of Criminal Procedure, 1973
('CrPC') and a good number of the decisions of this Court.
7.1. The learned Counsel has contended, while relying on the decisions in Nagaraja Rao v. Central Bureau of
Investigation: MANU/SC/0049/2015 : (2015) 4 SCC 302 and Gagan Kumar v. State of Punjab:
MANU/SC/0217/2019 : (2019) 5 SCC 154, that it is obligatory for the Court awarding punishments to specify
whether they shall be running concurrently or consecutively; and the omission on the part of the Trial Court and the
High Court, to state the requisite specifications, cannot be allowed to operate detrimental to the interests of the
Accused-Appellants. The learned Counsel has contended that though as per the mandate of Section 31 Code of
Criminal Procedure, unless specified to run concurrently, the sentences do run consecutively but, for that purpose,
the Court is required to direct the order in which they would run; and no such direction having been given by the
Trial Court or by the High Court, it cannot be said that the Courts were consciously providing for consecutive
running of sentences. Further, with reference to the decision in O.M. Cherian alias Thankachan v. State of Kerala
and Ors.: MANU/SC/1003/2014 : (2015) 2 SCC 501, the learned Counsel would urge that it is not the normal Rule
that multiple sentences are to run consecutively.
7.2. The learned Counsel Mr. Pai has also attempted to adopt another line of argument that concurrent or
consecutive running of sentences is also to be governed by 'single transaction' principle, as discernible from a
combined reading of Sections 31(1) and 220(1) Code of Criminal Procedure. In this regard, apart from the aforesaid
decisions in Nagaraja Rao and Gagan Kumar, the learned Counsel has also relied upon the decisions in Mohan
Baitha and Ors. v. State of Bihar and Anr.: MANU/SC/0217/2001 : (2001) 4 SCC 350; Mohd. Akhtar Hussain alias
Ibrahim Ahmed Bhatti v. Assistant Collector of Customs (Prevention), Ahmedabad and Anr.:
MANU/SC/0290/1988 : (1988) 4 SCC 183; and Manoj alias Panju v. State of Haryana: MANU/SC/1251/2013 :
(2014) 2 SCC 153 and has submitted that looking to the nature of accusation, there was no reason for the Courts to
direct consecutive running of sentences in the present case.
7.3. Further, the learned Counsel for the Appellants has referred to the decisions in State of Punjab v. Gurmit Singh
and Ors.: MANU/SC/0366/1996 : (1996) 2 SCC 384 and State of Madhya Pradesh v. Anoop Singh:
MANU/SC/0710/2015 : (2015) 7 SCC 773 to submit that those too were the cases involving offences Under
Sections 363, 366 and 376 with victim being a minor; and therein, this Court has awarded the sentences running
concurrently.
7.4. The learned Counsel has also argued that though the Appellant No. 2 did not prefer appeal against the judgment
and order of the Trial Court, this Court permitted him to file SLP by the order dated 13.04.2018; and, therefore,
benefit of reduction of default sentence, as ordered by the High Court, deserves to be extended to the Appellant
No. 2 too.
7.5. The learned Counsel Mr. Pai, even while frankly pointing out the observations of the Constitution Bench in
Muthuramalingam and Ors. v. State MANU/SC/0783/2016 : (2016) 8 SCC 313 (paragraph 28), to the effect that
Sub-section (2) of Section 31 has no application to a case tried by the Court of Sessions nor Sub-section (2) forbids
a direction for consecutive running of sentences awardable by the Court of Sessions, has made a fervent appeal that
the Appellants have already undergone over 13 years of imprisonment; and if ordained to serve for a total term of
22 years by consecutive running of sentences, it would be highly disproportionate to the actual punishment they
need to suffer in this case.
8. On the other hand, the learned AAG Mr. Vinod Diwakar has, firmly as also fairly, put forward the views on
behalf of the Respondent-State in opposition to the contentions aforesaid.
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8.1. The learned AAG Mr. Diwakar would submit that Section 31 Code of Criminal Procedure vests a discretion in
the Trial Court to direct whether or not the sentences would run concurrently when the Accused is convicted at one
trial of two or more offences but, in the present case, after noticing the gravity and nature of offences i.e.,
kidnapping and rape of a 13-year-old girl, the Trial Court has exercised its discretion and did not mention that the
sentences would be running concurrently; and, therefore, ipso facto, they are to run consecutively.
8.2. The learned AAG has also submitted that the principles related with commission of offences in a single
transaction do not lead to the proposition that different sentences in relation to multiple offences shall invariably be
running concurrently; and has referred to the enunciations in O.M. Cherian (supra). The learned AAG has further
referred to the Constitution Bench decision in the case of Muthuramalingam (supra) to submit that except life
imprisonments, the other term sentences awarded by the Court for several offences do run consecutively, unless
directed otherwise.
8.3. The learned AAG for the State would submit that concurrent running of sentences, as provided in any
particular case, relates to the facts and circumstances pertaining to that case and the Appellants cannot claim any
parity for concurrent running of sentences with reference to any other decided case, even if relating to the offences
of similar nature. The learned AAG would argue that in the present case, looking to the nature and gravity of
offences, the Trial Court has exercised its discretion in not directing concurrent running of sentences, which only
means that the sentences are to run consecutively; and that an omission on the part of the Trial Court in not
specifying the order of running cannot mean that the sentences are to run concurrently.
9. We have given thoughtful consideration to the rival submissions and have examined the record of the case with
reference to the law applicable.
10. The contentions urged in this matter essentially revolve around the provisions contained in Section 31(1) Code
of Criminal Procedure. The contours of these provisions have been succinctly delineated and explained by this
Court in the case of O.M. Cherian (supra) in the following terms:
20. Under Section 31 Code of Criminal Procedure it is left to the full discretion of the court to order the sentences
to run concurrently in case of conviction for two or more offences. It is difficult to lay down any straitjacket
approach in the matter of exercise of such discretion by the courts. By and large, trial courts and appellate courts
have invoked and exercised their discretion to issue directions for concurrent running of sentences, favouring the
benefit to be given to the Accused. Whether a direction for concurrent running of sentences ought to be issued in a
given case would depend upon the nature of the offence or offences committed and the facts and circumstances of
the case. The discretion has to be exercised along the judicial lines and not mechanically.
21. Accordingly, we answer the reference by holding that Section 31 Code of Criminal Procedure leaves full
discretion with the court to order sentences for two or more offences at one trial to run concurrently, having regard
to the nature of offences and attendant aggravating or mitigating circumstances. We do not find any reason to hold
that normal Rule is to order the sentence to be consecutive and exception is to make the sentences concurrent. Of
course, if the court does not order the sentence to be concurrent, one sentence may run after the other, in such
order as the court may direct. We also do not find any conflict in the earlier judgment in Mohd. Akhtar Hussain and
Section 31 Code of Criminal Procedure."
10.1. In Muthuramalingam (supra), the basic question before the Constitution Bench was as to whether consecutive
life sentences could be awarded to a convict on being found guilty of a series of murders, for which, he had been
tried in a single trial. In the course of determination of this question, the Constitution Bench dealt with several
dimensions of sentencing, particularly those relating to multiple sentences and observed, inter alia, that,-
23......So interpreted Section 31(1) Code of Criminal Procedure must mean that sentences awarded by the court for
several offences committed by the prisoner shall run consecutively (unless the court directs otherwise) except where
such sentences include imprisonment for life which can and must run concurrently....
10.2. Thus, it is beyond a shadow of doubt that Section 31(1) Code of Criminal Procedure vests complete discretion
with the Court to order the sentences for two or more offences at one trial to run concurrently having regard to the
nature of offences and the surrounding factors. Even though it cannot be said that consecutive running is the
normal Rule but, it is also not laid down that multiple sentences must run concurrently. There cannot be any
straitjacket approach in the matter of exercise of such discretion by the Court; but this discretion has to be
judiciously exercised with reference to the nature of the offence/s committed and the facts and circumstances of the
83
case. However, if the sentences (other than life imprisonment) are not provided to run concurrently, one would run
after the other, in such order as the Court may direct.
11. For what has been provided in Section 31(1) Code of Criminal Procedure read with the expositions of this
Court, it follows that the Court of first instance is under legal obligation while awarding multiple sentences to
specify in clear terms as to whether they would run concurrently or consecutively. In the case of Nagaraja Rao
(supra), this Court expounded on this legal obligation upon the Court of first instance in the following terms:
11. The expressions "concurrently" and "consecutively" mentioned in the Code are of immense significance while
awarding punishment to the Accused once he is found guilty of any offence punishable under Indian Penal Code
or/and of an offence punishable under any other Special Act arising out of one trial or more. It is for the reason
that award of former enure to the benefit of the Accused whereas award of latter is detrimental to the Accused's
interest. It is therefore, legally obligatory upon the court of first instance while awarding sentence to specify in clear
terms in the order of conviction as to whether sentences awarded to the Accused would run "concurrently" or they
would run "consecutively".
12. As noticed, if the Court of first instance does not specify the concurrent running of sentences, the inference,
primarily, is that the Court intended such sentences to run consecutively, though, as aforesaid, the Court of first
instance ought not to leave this matter for deduction at the later stage. Moreover, if the Court of first instance is
intending consecutive running of sentences, there is yet another obligation on it to state the order (i.e., the sequence)
in which they are to be executed. The disturbing part of the matter herein is that not only the Trial Court omitted to
state the requisite specifications, even the High Court missed out such flaws in the order of the Trial Court.
13. Even when we find the aforementioned shortcomings in the orders passed by the Trial Court as also by the
High Court, the question is as to whether the sentences awarded to the Appellants could be considered as running
concurrently? As noticed, the omission to state whether the sentences awarded to the Accused would run
concurrently or would run consecutively essentially operates against the Accused because, unless stated so by the
Court, multiple sentences run consecutively, as per the plain language of Section 31(1) Code of Criminal Procedure
read with the expositions in Muthuramalingam and O.M. Cherian (supra). The other omission to state the order of
consecutive running cannot ipso facto lead to concurrent running of sentences.
14. Faced with the position that the stated omissions will not, by themselves, provide a room for concurrent running
of sentences, learned Counsel for the Appellants has endeavoured to invoke the 'single transaction' principle. In our
view, the said principle is essentially referable to Section 220 Code of Criminal Procedure, which provides that if
more offences than one are committed in one series of acts so connected together as to form the same transaction,
then the Accused may be charged with and tried at one trial for every such offence. In a given case, after such trial
for multiple offences, if the Accused is convicted and awarded different punishments, concurrent running thereof
may be provided depending on the facts and the relevant surrounding factors. We are afraid, the principle related
with 'single transaction' cannot be imported for dealing with the question at hand.
14.1. In the case of Mohan Baitha (supra), this Court observed that the expression 'same transaction', from its very
nature, is incapable of an exact definition and it is not possible to enunciate any comprehensive formula of universal
application for the purpose of determining whether two or more acts constitute the same transaction. The question
involved in that case did not relate to sentence but to the inquiry and trial of different offences pertaining to
Sections 304-B, 498-A, 120-B and 406 Indian Penal Code and territorial jurisdiction of the Magistrate in Bihar when
the alleged incident constituting one of the offences, i.e., Under Section 304-B Indian Penal Code, had taken place
in the State of Uttar Pradesh. Of course, in the case of Mohd. Akhtar Hussain (supra), this Court indicated that if a
transaction constitutes two offences under two enactments, generally it is wrong to have consecutive sentences but
this Court hastened to observe that such a Rule shall have no application if the transaction relating to the offences is
not the same or the facts concerning the two offences are quite different. Significantly, in that case, consecutive
running of sentences awarded to Accused-Appellant, in two different cases pertaining to the Gold (Control) Act,
1968 and the Customs Act, 1962, was upheld by this Court with the finding that the two offences for which the
Appellant was prosecuted were 'quite distinct and different'. The only modification ordered by this Court was
concerning the term of imprisonment for the latter conviction while disapproving its enhancement from 4 years to 7
years by the High Court after noticing that he was already sentenced to imprisonment for a term of 7 years in the
first offence. The trial and conviction in the case of Manoj alias Panju (supra) had been for offence Under Section
307 Indian Penal Code as also Under Sections 25 and 27 of the Arms Act. In the case of Nagaraja Rao (supra), the
trial and conviction had been of offences Under Section 381 Indian Penal Code and Section 52 of the Post Office
Act, 1898. In the case of Gagan Kumar (supra), offences were Under Sections 279 and 304-A Indian Penal Code.
84
These decisions, essentially proceeding on their own facts, do not make out a case for interference in favour of the
Appellants.
15. The punishments awarded by this Court in the cases of Gurmit Singh and Anoop Singh (supra), relate to the
individual facts and circumstances and cannot be adopted as the precedents for the purpose of particular quantum
of sentences and their concurrent running. Significantly, in both the said cases, the conviction was recorded by this
Court after setting aside the impugned orders of acquittal. The orders passed by this Court, for striking a just
balance in the matter of sentencing after reversing the acquittal, cannot be applied to the present case where
conviction recorded by the Court of first instance was not even challenged, and has attained finality.
16. For what has been discussed hereinabove, we are not inclined to accept the principal part of the submissions of
learned Counsel for the Appellants. However, the other part of his submissions, that requiring the Appellants to
serve a total term of 22 years in prison would be highly disproportionate to the actual punishment they need to
suffer in this case, cannot be brushed aside as altogether unworthy of consideration.
17. We have taken note of the observations of the Constitution Bench in Muthuramalingam (supra), which were
made in the context of a previous decision of this Court, where the eventuality of consecutive running of life
sentences was obviated with reference to the proviso to Sub-section (2) of Section 31. The Constitution Bench
though endorsed the view that consecutive life sentences cannot be awarded but observed that the proviso to Sub-
section (2) of Section 31 Code of Criminal Procedure cannot be relied upon to support this conclusion and also
observed that Sub-section (2) of Section 31 Code of Criminal Procedure has no application to a case tried by the
Court of Sessions nor Sub-section (2) forbids a direction for consecutive running of sentences awardable by the
Court of Sessions.
17.1. Even when Sub-section (2) of Section 31 Code of Criminal Procedure is not directly applicable, some of the
relevant features of the present case are that the offences in question were committed in the year 2008 i.e., before
amendment of Indian Penal Code by the Amending Act 13 of 2013; the Appellants have continuously served about
13 years and 2 months of imprisonment; and nothing adverse in regard to their conduct while serving the sentences
has been placed on record. In the given set of circumstances, we have pondered over the question as to what ought
to be the order for a just balance on the requirements of punishment on one hand and reasonable release period for
the Appellants on the other, while keeping in view the overall scheme of awarding of punishments and execution
thereof, including the ancillary aspects referable to Sections 433 and 433A Code of Criminal Procedure as also
Section 55 Indian Penal Code whereunder, serving of a term of 14 years even in the sentence of imprisonment for
life is the bottom line (subject to the exercise of powers of commuting by the appropriate Government in
accordance with other applicable principles). After anxious consideration of all the relevant factors, we are of the
view that the requirements of complete justice to the cause before us could adequately be met by providing that the
maximum period of imprisonment to be served by the Appellants shall be 14 years and not beyond.
18. However, the submission for extending the benefit of modification of default stipulations qua the Appellant No.
2 carries the shortcoming that the said Appellant did not prefer appeal against the judgment and order of the Trial
Court. This is coupled with the fact that in the root cause of this matter, the initial accusation of enticing the victim
was made against the Appellant No. 2. In view of the overall circumstances and the principal subject matter of this
appeal, we find no reason to re-open the issue which was not taken up by the Appellant No. 2 at the relevant stage.
19. In view of the above, in exercise of powers Under Article 142 of the Constitution of India, we provide for
modification of the punishment awarded to the Appellants in the manner that the maximum period of
imprisonment to be served by them in relation to offences in question shall be 14 years and not beyond. It goes
without saying that this order of modification is passed only in the peculiar facts and circumstances of this case.
19.1. However, the requirement of payment of fine and the default stipulations, as applicable to the Appellant No. 1
in terms of the order of the High Court and to the Appellant No. 2 in terms of the order of the Trial Court, shall
remain intact. Learned Counsel for the Appellants submits that as per his instructions, the Appellant No. 1 has
deposited the fine amount. The submission is taken on record. However, it is made clear that in default in payment
of fine, the defaulter-Appellant shall undergo respective default sentences consecutively and in the order they have
been imposed, for offences Under Sections 363, 366, and 376(1) Indian Penal Code.
20. The appeal is partly allowed, as aforesaid.
85
21. While closing on the matter, we deem it appropriate to reiterate what was expounded in the case of Nagaraja
Rao (supra), that it is legally obligatory upon the Court of first instance, while awarding multiple punishments of
imprisonment, to specify in clear terms as to whether the sentences would run concurrently or consecutively. It
needs hardly an emphasis that any omission to carry out this obligation by the Court of first instance causes
unnecessary and avoidable prejudice to the parties, be it the Accused or be it the prosecution.
86
MANU/SC/1024/2018
Equivalent Citation: AIR2018SC4595
Sharad Hiru Kolambe

Vs.
State of Maharashtra and Ors.
Hon'ble Judges/Coram:
Abhay Manohar Sapre and U.U. Lalit, JJ.
JUDGMENT
U.U. Lalit, J.
1. Delay in filing Special Leave Petition condoned. Leave granted.
2. This appeal challenges the decision dated 17.12.2013 passed by the High Court of Bombay in Criminal Appeal
No. 906 of 2006 affirming the conviction and sentence of the Appellant (original Accused No. 6) for offences
punishable under the Indian Penal Code (IPC, for short) as well as the Maharashtra Control of Organised Crime
Act, 1999 (hereinafter referred to as the MCOC Act). Since the emphasis in the present appeal was placed on the
nature of default sentences passed against the Appellant, we confine ourselves to bare outline of facts. The
Appellant along with other co-accused was tried and convicted by the Special Judge [the MCOC Act] Thane in
M.C.O.C. Special Case No. 3 of 2002 vide judgment dated 20.10.2005. The relevant portion of the order of sentence
passed by the Special Judge reads as under:
Accused Nos. 1 to 6 namely, Sanjay Kisan Mohite, Sudish Maniken, Maniken Nair, Pramod Shankar Jadhav,
Santosh Manohar Deshmukh, Chandrakant Balkrishna Shegde and Sharad Hiru Kolambe are convicted for offence
punishable Under Section 364A of Indian Penal Code read with Section 34 of the Indian Penal Code and sentenced
to suffer life imprisonment and to pay fine of Rs. 1,000/- each. In default to suffer imprisonment for three months.
The Accused Nos. 1 to 6 are convicted for offence punishable Under Section 395 of Indian Penal Code and
sentenced to suffer imprisonment for seven years and to pay fine of Rs. 1,000/- each. In default, to suffer
imprisonment for three months.
The Accused Nos. 1 to 6 are convicted for offence punishable Under Section 397 of Indian Penal Code and
sentenced to suffer imprisonment for seven years and to pay fine of Rs. 1,000/- each. In default, to suffer
imprisonment for three months.
The Accused Nos. 1 to 6 are convicted for offence punishable Under Section 387 of Indian Penal code read with
Section 34 of the Indian Penal Code and sentenced to suffer imprisonment for five years and to pay fine of Rs.
1,000/- each. In default, to suffer imprisonment for three months.
The Accused Nos. 1 to 6 are convicted for offence punishable Under Section 342 of Indian Penal Code read with
Section 34 of the Indian Penal code and sentenced to suffer imprisonment for one year.
The Accused Nos. 1 to 6 are convicted for offence punishable Under Section 3(1)(ii) of Maharashtra Control of
Organised Crime Act and sentenced to suffer imprisonment for ten years and to pay fine of Rs. 5,00,000/- (Rupees
Five lacs) each. In default, to suffer imprisonment for three years.
The Accused Nos. 1 to 6 are convicted for offence punishable Under Section 3(2) of Maharashtra Control of
Five Lacs) each. In default, to suffer imprisonment for three years.
87
The Accused Nos. 1 to 6 are convicted for offence punishable Under Section 3(4) of Maharashtra Control of
Five Lacs) each. In default, to suffer imprisonment for three years.
All the sentences shall run concurrently.
The Accused persons are entitled for set off Under Section 428 of the Code of Criminal Procedure for pretrial
detention period.
Accused No. 7 Avinash Shrikrishna Dugad and Accused No. 8 Tanaji Nanu Birade are acquitted of all the offences.
Their bail bonds stand cancelled.
3. The decision so rendered by the Special Judge was questioned by all the convicted Accused by filing criminal
appeals in the High Court of Bombay. The High Court by its judgment and order under appeal set aside the
conviction and sentence of original Accused No. 5. It, however, dismissed all the other appeals. The conviction and
sentence in so far as the Appellant is concerned thus stood affirmed.
4. It may be mentioned that the Appellant was arrested on 26.08.2001 and was never released during the trial as well
as during the pendency of the appeal. He thus completed 14 years of actual sentence on 25.08.2015. By order dated
04.03.2017 passed by the Government of Maharashtra in exercise of powers conferred Under Sections 432 and 433
of Code of Criminal Procedure (hereinafter referred to as the Code), the Appellant was directed to be released on
completion of 14 years of actual sentence. However, since the Appellant has not paid the amount of fine as directed,
he is presently undergoing the sentence in default as awarded by the Courts below. It must further be mentioned
that on 03.06.2017, the District Probation Officer, District Women and Child Welfare Department, Raigad, Alibaug
submitted a Home Inquiry Report wherein it was noted that the Appellant's family was in a state of starvation.
5. In the aforesaid factual context, Mr. Colin Gonsalves, learned Senior Counsel appearing for the Appellant
advanced following submissions:
a. The cumulative fine imposed upon the Appellant under various counts of punishment was Rs. 15,04,000/- and
the default sentence in case of non-payment was cumulatively 10 years. For a person whose family was reduced to a
state of starvation, it was impossible to deposit payment of fine as directed. Resultantly, the Appellant would have to
suffer default sentence of 10 years. Though the substantive sentence stood remitted and the Appellant was directed
to be released on completion of 14 years of actual sentence, the Appellant would still be inside till he completes 24
years.
b. Since the trial court had directed "all sentences shall run concurrently", all default sentences must also run
concurrently inter se. Thus the maximum default sentence would be 3 years and not 10 years.
c. In the present case the default sentences so directed would be unconscionable and excessive.
He thus submitted that either default sentences be directed to run concurrently or the default sentences be reduced
to the one already undergone and the Appellant be set at liberty. The learned Senior Counsel relied on the decisions
of this Court rendered in Palaniappa Gounder v. State of Tamil Nadu and Ors. MANU/SC/0118/1977 : (1977)
2 SCC 634, Shantilal v. State of M.P. MANU/SC/3895/2007 : (2007) 11 SCC 243 and Shahejadkhan
Mahebubkhan Pathan v. State of Gujarat MANU/SC/0840/2012 : (2013) 1 SCC 570 in which this Court after
considering the standing of the person, nature of crime and the financial capacity had reduced the quantum of
default sentence.
6. Mr. Nishant R. Katneshwarkar, learned Counsel appearing for State of Maharashtra however relied upon certain
observations made by this Court in V.K. Bansal v. State of Haryana and Anr. MANU/SC/0673/2013 : (2013) 7
SCC 211 and a decision of the Full Bench of Madras High Court in case of Donatus Tony Ikwanusi v. The
Investigating Officer, NCB MANU/TN/0348/2013 : (2013) 1 MWN (Cr.) 175 (FB) to submit that default
sentences for nonpayment of fine could not be ordered to run concurrently. The learned Counsel however fairly
submitted that considering the financial capacity of the Appellant, the quantum of default sentences under each of
the counts could certainly be reduced as this Court may deem appropriate.
88
7. Sections 63 and 64 of the Indian Penal Code; Sections 30, 31, 421, 427, 428 and 429 of the Code which
provisions have bearing on the present controversy, are quoted hereunder:
Indian Penal Code
63. Amount of fine.-Where no sum is expressed to which a fine may extend, the amount of fine to which the
offender is liable is unlimited, but shall not be excessive.
64. Sentence of imprisonment for non-payment of fine.--In every case, of an offence punishable with imprisonment
as well as fine, in which the offender is sentenced to a fine, whether with or without imprisonment,
and in every case of an offence punishable with imprisonment or fine, or with fine only, in which the offender is
sentenced to a fine,
it shall be competent to the Court which sentences such offender to direct by the sentence that, in default of
payment of the fine, the offender shall suffer imprisonment for a certain term, in which imprisonment shall be in
excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a
commutation of a sentence.
Code of Criminal Procedure
30. Sentence of imprisonment in default of fine.
(1) The Court of a Magistrate may award such term of imprisonment in default of payment of fine as is authorised
by law: Provided that the term-
(a) is not in excess of the powers of the Magistrate Under Section 29;
(b) shall not, where imprisonment has been awarded as part of the substantive sentence, exceed one-fourth of the
term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as
imprisonment in default of payment of the fine.
(2) The imprisonment awarded under this Section may be in addition to a substantive sentence of imprisonment for
the maximum term awardable by the Magistrate Under Section 29.
31. Sentence in cases of conviction of several offences at one trial.
(1) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of
Section 71 of the Indian Penal Code (45 of 1860), sentence him for such offences, to the several punishments
prescribed therefor which such Court is competent to inflict; such punishments when consisting of imprisonment to
commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs
that such punishments shall run concurrently.
(2) In the case of consecutive sentences, it shall not be necessary for the Court by reason only of the aggregate
punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction
of a single offence, to send the offender for trial before a higher Court: Provided that-
(a) in no case shall such person be sentenced to imprisonment for a longer period than fourteen years;
(b) the aggregate punishment shall not exceed twice the amount of punishment which the Court is competent to
inflict for a single offence.
(3) For the purpose of appeal by a convicted person, the aggregate of the consecutive sentences passed against him
under this Section shall be deemed to be a single sentence.
427. Sentence on offender already sentenced for another offence.
89
(1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to
imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the
expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the
subsequent sentence shall run concurrently with such previous sentence:
Provided that where a person who has been sentenced to imprisonment by an order Under Section 122 in default of
furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior
to the making of such order, the latter sentence shall commence immediately.
(2) When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction
to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such
previous sentence.
428. Period of detention undergone by the Accused to be set off against the sentence or imprisonment.-
Where an Accused person has, on conviction, been sentenced to imprisonment for a term, not being imprisonment
in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or
trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment
imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction
shall be restricted to the remainder, if any, of the term of imprisonment imposed on him.
429. Saving.
(1) Nothing in Section 426 or Section 427 shall be held to excuse any person from any part of the punishment to
which he is liable upon his former or subsequent conviction.
(2) When an award of imprisonment in default of payment of a fine is annexed to a substantive sentence of
imprisonment and the person undergoing the sentence is after its execution to undergo a further substantive
sentence or further substantive sentences of imprisonment, effect shall not be given to the award of imprisonment
in default of payment of the fine until the person has undergone the further sentence or sentences.
8. Section 3 of the MCOC Act is also quoted, under three counts of which the Appellant was convicted and
sentenced:
3. Punishment for organised crime-
(1) Whoever commits an offence of organised crime shall.-
(i) if such offence has resulted in the death of any person, be punishable with death or imprisonment for life and
shall also be liable to a fine, subject to a minimum fine of rupees one lac;
(ii) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which
may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs.
(2) Whoever conspires or attempts to commit or advocates, abets or knowingly facilitates the commission of an
organised crime or any act preparatory to organised crime, shall be punishable with imprisonment for a term which
shall be not less than five years but which may extend to imprisonment for life, and shall also be liable to a fine,
subject to a minimum fine of rupees five lacs.
(3) Whoever harbours or conceals or attempts to harbour or conceal, any member of an organised crime syndicate;
shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to
imprisonment for life, and shall also be liable to a fine, subject to a minimum fine of rupees five lacs.
(4) Any person who is a member of an organised crime syndicate shall be punishable with imprisonment for a term
which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a
fine, subject to a minimum fine of rupees five lacs.
90
(5) Whoever holds any property derived or obtained from commission of an organised crime or which has been
acquired through the organised crime syndicate funds shall be punishable with a term which, shall not be less than
three years but which may extend to imprisonment for life and shall also be liable to fine, subject to a minimum fine
of rupees two lacs.
9. Section 63 of Indian Penal Code generally lays down that fine should not be excessive wherever no sum is
expressed to which the fine may extend. Naturally, in cases where the concerned provision itself indicates a sum to
which the fine may extend, or prescribes a minimum quantum of fine, such element may not apply. In cases covered
by Section 64 of Indian Penal Code the Court is competent to impose sentence of "imprisonment for non-payment
of fine" and such sentence for non-payment of fine "shall be in excess of any imprisonment" to which the offender
may have been sentenced or to which he may be liable under commutation of a sentence. Sections 30 and 429(2) of
the Code also touch upon the principle that default sentence shall be in addition to substantive sentence. In terms of
said Section 30(2) the default sentence awarded by a Magistrate is not to be counted while considering the maximum
punishment that can be substantively awarded by the Magistrate, while Under Section 429(2), in cases where two or
more substantive sentences are to be undergone one after the other, the default sentence, if awarded, would not
begin to run till the substantive sentences are over. Similarly, Under Section 428 of the Code, the period undergone
during investigation, inquiry or trial has to be set off against substantive sentence but not against default sentence.
The idea is thus clear, that default sentence is not to be merged with or allowed to run concurrently with a
substantive sentence. Thus, the sentence of imprisonment for non-payment of fine would be in excess of or in
addition to the substantive sentence to which an offender may have been sentenced or to which he may be liable
under commutation of a sentence.
10. There are two provisions in the Code namely Sections 31 and 427 which speak of consecutive and concurrent
running of sentences. Section 31 deals with cases where a person is convicted at one trial of two or more offences.
The reading of Section 31 makes it clear that unless the Court directs that punishments for such two or more
offences at same trial should run concurrently, the normal principle is that the punishments would commence one
after the expiration of the other. The provision thus gives discretion to the Court to direct running of such
punishments either concurrently or consecutively. Similar discretion is available in Section 427 which deals with
cases where a person already undergoing a sentence is later imposed sentence in respect of an offence tried at
subsequent trial. These two provisions namely Sections 31 and 427 thus deal with discretion available to the Court
to specify whether the substantive sentences should run concurrently or consecutively. In the context of exercise of
power Under Section 427 of the Code, our attention was invited by the learned Counsel appearing for State of
Maharashtra to certain observations made by this Court in V.K. Bansal (supra). Even while granting the benefit of
concurrent running of the substantive sentences in respect of offences arising out of distinct transactions, this Court
made certain observations regarding non-applicability of such benefit to sentences in default of fine, in para 18 as
under:
...We make it clear that the direction regarding concurrent running of sentence shall be limited to the substantive
sentence only. The sentence which the Appellant has been directed to undergo in default of payment of
fine/compensation shall not be affected by this direction. We do so because the provisions of Section 427 Code of
Criminal Procedure do not, in our opinion, permit a direction for the concurrent running of the substantive
sentences with sentences awarded in default of payment of fine/compensation.
11. As against Sections 31 and 427 of the Code which deal with substantive sentences and empower the courts in
certain cases to direct concurrent running of more than one sentences, no such specification is available in Section
64 of Indian Penal Code and in Section 30 of the Code or in any other provision dealing with power to impose
sentence of "imprisonment for nonpayment of fine" or in connection with default sentence as is normally known. Is
such non specification accidental or is there any idea behind not allowing concurrent running of default sentences?
12. Insofar as the nature and extent the power to impose fine is concerned, Section 63 of the Indian Penal Code
provides some guidelines and states that wherever no sum is expressed to which a fine could extend, the amount
should not be excessive. It follows that if the law in question or the concerned provision stipulates the quantum or
minimum amount of fine, the Courts must be guided by such specification. In Shantilal (supra) this Court
considered the nature of imposition of fine and what attending circumstances ought to be taken into account by the
Court while directing imprisonment for nonpayment of fine. Para 31 of the said decision is as under;
31. The next submission of the learned Counsel for the Appellant, however, has substance. The term of
imprisonment in default of payment of fine is not a sentence. It is a penalty which a person incurs on account of
non-payment of fine. The sentence is something which an offender must undergo unless it is set aside or remitted in
part or in whole either in appeal or in revision or in other appropriate judicial proceedings or "otherwise". A term of
91
imprisonment ordered in default of payment of fine stands on a different footing. A person is required to undergo
imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. He, therefore,
can always avoid to undergo imprisonment in default of payment of fine by paying such amount. It is, therefore, not
only the power, but the duty of the court to keep in view the nature of offence, circumstances under which it was
committed, the position of the offender and other relevant considerations before ordering the offender to suffer
imprisonment in default of payment of fine.
A further question whether there has to be specific empowerment to order imprisonment in default of fine was also
considered and it was found that such power is implicit and possessed by courts administering criminal justice.
13. If the term of imprisonment in default of payment of fine is a penalty which a person incurs on account of non-
payment of fine and is not a sentence in strict sense, imposition of such default sentence is completely different and
qualitatively distinct from a substantive sentence. We must hasten to add that it is not the case of the Appellant that
default sentences awarded to him must run concurrently with substantive sentence imposed on him. His case is that
all default sentences must inter se run concurrently. Imposition of fine, especially when certain minimum quantum is
prescribed and/or mandatory imposition of fine is contemplated, has some significance. Theoretically, if the default
sentences awarded in respect of imposition of fine in connection with two or more offences are to be clubbed or
directed to run concurrently, there would not be any occasion for the persons so sentenced to deposit the fine in
respect of the second or further offences. It would effectively mean imposition of one single or combined sentence
of fine. Such an exercise would render the very idea of imposition of fine with a deterrent stipulation while awarding
sentence in default of payment of fine to be meaningless. For example, in the present case, in respect of three
distinct offences punishable under the provisions of the MCOC Act, fine came to be imposed. Such fine going by
the relevant provisions had to be at a minimum scale of Rs. 5 lakhs. If the default sentences awarded in respect of
each of those three counts under the MCOC Act are directed to run concurrently, the Accused may not be inclined
to deposit fine in respect of two out of those three counts. If imposition of fine and prescription of mandatory
minimum is designed to achieve a specific purpose, the very objective will get defeated if the default sentences were
directed to run concurrently. It is precisely for this reason that unlike Sections 31 and 427 of the Code, which
specifically empower the concerned court to direct concurrent running of substantive sentences, Section 64 of the
Indian Penal Code does not stipulate such discretion. The language of said Section 64 rather mandates that the
sentence awarded for non-payment of fine "imprisonment shall be in excess of any other imprisonment to which he
may have been sentenced or to which he may be liable under a commutation of a sentence". Similar is the intent in
Sections 30, 428 and 429(2) of the Code as discussed above. The rigour of the provisions is such that even if a
person gets the benefit of commutation of a sentence, the sentence in default of payment of fine shall be in excess
or in addition.
14. We must at this juncture deal with Full Bench decision of the Madras High Court in Donatus (supra). After
considering the decision of the Bombay High Court in Emperor v. Subrao Sesharao MANU/MH/0148/1925 :
AIR (1926) Bom. 62, and earlier decision of the Madras High Court in P. Balaraman v. State
MANU/TN/0135/1990 : (1990) MLJ (Cri) 534 and decisions of this Court in Shantilal v. State of M.P. (supra)
and Shahejadkhan Mahebubkhan Pathan v. State of Gujarat (supra), the High Court held that there cannot be
concurrent running of more than one default sentences. It was rightly observed as under:
20. The principle laid down by the Hon'ble Apex Court in the decisions cited supra makes it crystal clear that
imposition of the term of imprisonment in default of payment of fine is not a sentence and it is a penalty which a
person incurs on account of non-payment of fine. It is also made clear that if such default sentence is imposed,
undoubtedly, an offender must undergo unless it is modified or varied in part or whole in the judicial proceedings.
Therefore, there is no power for the Court to order the default sentences to run concurrently. The Hon'ble Apex
Court also made it clear that when such a default sentence is imposed, a person is required to undergo
imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount.
The conclusion regarding concurrent running of default sentence was as under:
18. It is relevant to state that there are provisions under the code, as pointed out earlier, to order the substantive
sentences to run concurrently and the legislature specifically excluded such power to the Court in respect of
ordering the default sentences to run concurrently. The Court cannot add or substitute any additional words to any
particular provision of the Code. It is not for the Court to take up the work of legislation and the Court can only
apply the provision contained under the Code as it is. It is well-settled in a catena of decisions that the term of
imprisonment in default of payment of fine cannot be deemed to be a sentence, but a penalty which is incurred on
account of non-payment of fine.
92
15. In the circumstances, we reject the submission regarding concurrent running of default sentences, as in our
considered view default sentences, inter se, cannot be directed to run concurrently. However, considering the
financial condition of the Appellant, a case is certainly made out to have a sympathetic consideration about the
quantum of default sentence.
16. The quantum of fine imposed in the present case in respect of offences punishable Under Sections 364A, 395,
397 and 387 of the Indian Penal Code is not excessive and is quite moderate. However in our view, the default
sentence for non-payment of such fine, ought to be reduced to the level of one month on each of those four counts
in respect of the Appellant. We now come to the imposition of fine and default sentences for the offences
punishable Under Sections 3(1)(ii), 3(2) and 3(4) of the MCOC Act. The text of these Sections shows that these
provisions contemplate, upon conviction, mandatory minimum fine of Rs. 5 lakhs on each count. We do not
therefore find anything wrong with the imposition of fine of Rs. 5 lakhs in respect of each of those three counts
under the MCOC Act. We however find that the imposition of default sentences of three years is slightly on a
higher scale. We therefore reduce the default sentence to a period of one year each in respect of these three counts
of offences under the MCOC Act.
17. Resultantly, while maintaining the quantum of fine, in respect of four counts of offences punishable under the
Indian Penal Code cumulatively at Rs. 4000/-, the aggregate default sentence shall be four months; and in respect of
three counts of offences punishable under the MCOC Act the fine shall be Rs. 15 lakhs cumulatively with default
sentence of three years in aggregate. Even if no amount of fine is paid by the Appellant, the total default sentence
for the Appellant would thus be three years and four months, out of which three years of default sentence has
already been undergone by the Appellant.
18. This appeal thus stands allowed in aforesaid terms. A copy of this judgment shall be immediately transmitted to
the concerned jail where the Appellant is presently lodged.
93
Page 94
Civil Appeal No. 5412 of 1990
Appellants:State of Haryana and others

Vs.
Respondent: Ch. Bhajan Lal and others
Hon'ble Judges:
S. Ratnavel Pandian and K. Jayachandra Reddy, JJ.
ORDER
S. Ratnavel Pandian, J.
1. Leave granted.
The king is under no man, but under God and the law"-was the reply of the Chief Justice of England, Sir Edward Coke
when James-I once declared "Then I am to be under the law. It is treason to affirm it"-so wrote Henry Bracton who was
a Judge of the King's Bench.
2. The words of Bracton in his treatise in Latin "good Rex non debet esse sub homine, sed sub Deo et Legu" (That the
king should not be under man, but under God and the law) were quoted time and time again when the Stuart Kings
claimed to rule by divine right. We would like to quote and requite those words of Sir Edward Coke even at the
threshold.
3. In our democratic polity under the Constitution based on the concept of 'Rule of Law' which we have adopted and
given to ourselves and which serves as an aorta in the anatomy of our democratic system, THE LAW IS SUPREME.
4. Everyone whether individually or collectively is unquestionably under the supremacy of law. Whoever he may be,
however high he is, he is under the law. No matter how powerful he is and how rich he may be.
5. The heated and lengthy argument advanced in general by all the learned Counsel on the magnitude and the multi-
dimensional causes of corruption and also about the positive and constructive remedial measures and steps to be taken
for its eradication has necessitated us to give a brief exordium about its perniciousness, though strictly speaking, we
would be otherwise not constrained to express any opinion on this.
6. At the outset we may say that we are not inclined to make an exhaustive survey and analysis about the anatomy,
dimensions and causes of corruption. It cannot be gainsaid that the ubiquity of corruption is always associated with a
motivation of private gain at public expense.
7. Though the historical background and targets of corruption are reviewed time after time; the definitional and
conceptual problems are explored and the voluminous causes and consequences of corruption are constantly debated
through out the globe, yet the evils of corruption and their auto narcotic effect pose a great threat to the welfare of
society and continue to grow in menacing proportion. therefore, the canker of the venality, if not fought against on all
fronts and at all levels, checked and eradicated, will destabilize and debilitate the very foundations of democracy; wear
away the rule of law through moral decay and make the entire administration ineffective and dysfunctional.
8. Mere rhetorical preaching of apostolic sermons listing out the evils of corruption and raising slogans with catch-words
are of no use in the absence of practical and effective steps to eradicate them; because 'evil tolerated is evil propagated'.
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9. At the same time, one should also be alive to cases where false and frivolous accusations of corruption are maliciously
made against an adversary exposing him to social ridicule and oblique with an ulterior motive of wreaking vengeance due
to past animosity or personal pique or merely out of spite regardless of the fact whether the proceedings will ultimately
culminate into conviction or not.
10. We would like to make it clear that the above exordial note is given without casting any aspersion against any of the
parties to the present proceedings or touching the individual merit of the case.
11. The relevant facts giving rise to this appeal, though have been set out in great detail in the impugned judgment of the
High Court, have to be recapitulated in order to enable us to give our own reasons for the findings which we will be
arriving at on the interpretation of certain provisions of the Criminal Procedure Code ('the Code' for short) and of the
Prevention of Corruption Act, 1947 ('the Act' for short).
12. This appeal by grant of special leave is directed by the appellants, namely, the State of Haryana and two others
assailing the judgment dated 8.9.1988 of a Division Bench of the High Court of Punjab and Haryana rendered in Writ
Petition No. 9172/87 quashing the entire criminal proceedings inclusive of the registration of the Information Report
and directing the second respondent, Mr. Dharam Pal to pay the costs to the first respondent, Ch. Bhajan Lal.
13. Ch. Bhajan Lal was a Minister in 1977 when Ch. Devi Lal was the Chief Minister of Haryana state and he became the
Chief Minister of the state of Haryana in 1982-87. During the initiation of this criminal proceeding in question, he was
the Union Minister for Environment and Forests, Government of India.
14. In the general election to the legislative assembly of the state of Haryana in June 1987, Smt. Jasma Devi, the wife of
Ch. Bhajan Lal contested from Adampur constituency on being sponsored by the Congress (I) party as against the
second respondent, Mr. Dharam Pal who was a nominee of the Lok Dal. Mrs. Jasma Devi was successfully elected.
Dharam Pal presented an election petition calling in question the election of Smt. Jasma Devi on a variety of grounds.
Ch. Devi Lal, the third respondent in this appeal who was the second respondent in the writ petition also contested on
Lok Dal's ticket and became successful. Thereafter Ch. Devi Lal became the Chief Minister of the State of Haryana in
1987.
15. It seems that after the general election there were a number of criminal proceedings between the parties one of
which being a criminal prosecution against Dharam Pal Under Section 307 IPC registered in Adampur police station. On
account of the political rivalry and the institution of a number of criminal cases and counter cases there was bad-blood
between Ch. Bhajan Lal on the one hand and Ch. Devi Lal on the other.
16. While it was so, on 12th November 1987 Dharm Pal presented a complaint before Ch. Devi Lal making certain
serious allegations against Bhajan Lal, a brief note of which is given below:
17. Before 1969 Ch. Bhajan Lal was a man of ordinary means and did not have any definite source of income, but after
he was inducted in the Cabinet as a Minister and particularly after he became the Chief Minister of the State, he
accumulated huge properties worth crores of rupees in the names of his family members, relations and persons close to
him by misusing his power and position and also by undervaluing the market price and all those transactions are benami
in character. In the complaint, Mr. Dharam Pal has given the details citing 20 independent allegations, alleging that a
palatial house is being constructed at Hissar at the cost of about Rs. 50 lakhs and that extensive lands at various places
have been purchased either in the name of his wife, Jasma Devi, or in the names of his sons Kuldip and Chander Mohan
or benami in the names of his relations etc. and that two petrol pumps valuing about Rs. 5 lakhs have been installed in
the name of his wife, and that certain shops have been constructed etc. Besides these allegations, it is said that Bhajan
Lal has acquired several other properties either in his name or in the names of his benamidars such as shares in the
cinemas of Sirsa and Adampur, besides owning trucks, cars etc. and is possessing gold, silver and diamond ornaments
valuing about Rs. 5 crores. The accumulation of all those properties in the shape of buildings, land, shares and
ornaments etc. is far beyond his legal means and, therefore, an investigation should be directed and appropriate action
be taken against Ch. Bhajan Lal.
18. On the complaint presented by Dharam Pal, the Officer on Special Duty (OSD) in the Chief Minister's Secretariat
made an endorsement on 12.11.1987 in Hindi, the translation of which reads "C.M. has seen. For appropriate action"
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and marked the same to the Director General of Police (DGP), who in turn made an endorsement on 12.11.1987 itself
reading "Please look into this; take necessary action and report" and marked it to the Superintendent of Police (S.P.)
Hissar. The said complaint along with the above endorsements of OSD and DGP was put up before the S.P., the
second appellant on 21.11.1987, on which date itself the S.P. made his endorsement reading "Please register a case and
investigate".
19. The SHO (the third appellant) registered a case on the basis of the allegations in the complaint Under Sections 161
and 165 of the Indian Penal Code and Section 5(2) of the Act on 21.11.1987 itself at 6.15 P.M. and took up the
investigation. On the foot of the First Information Report (F.I.R.) the following endorsement has been made:
Police proceeding that the S.P. Hissar after registering the case on the above application has ordered to investigate the
case. That FIR Under Section 161, 165 IPC. 5.2.1947 P.C Act has been registered at P.S. Sadar Hissar. An Inspector,
along with constables Sumer Singh 700, Randhir Singh 445, Attar Singh 47 proceed to the spot. Constables Sumar Singh
700, and Randhir Singh 445 were handed over one rifle along with 50 cartridges each and copy of the FIR as a special
report is being sent through Head constable Bhaktawar Singh, 602 at the residence of Illaga Magistrate and other offices.
Tara Chand,
Inspector,
Police Station, Sadar.
20. The third petitioner (SHO) after forwarding a copy of the first information report to the Magistrate and other
officers concerned, himself took up the investigation and proceeded to the spot accompanied by three constables of
whom two constables were handed over one rifle each and 50 cartridges.
21. While the matter stood thus, the first respondent filed the writ petition No. 9172/87 under Articles 226 and 227 of
the Constitution of India seeking issuance of a writ of certiorari quashing the first information report and also of a writ
of prohibition restraining the petitioners herein from further proceeding with the investigation. It is stated that the High
Court granted an ex-parte stay which was thereafter made absolute.
22. Initially 3 separate written statements were filed before the High Court, one by Inspector Kartar Singh (on behalf of
the State of Haryana, the S.P. and S.H.O. who were respondents 1, 3 and 4 in the writ petition and who are the
appellants herein); another by respondent No. 2 Ch. Devi Lal (who is the third proforma respondent in this appeal) and
the third one by respondent No. 5 in the writ petition (who is the complainant and the second respondent in this
appeal). Subsequently realising that Kartar Singh was not competent to file the written statement on behalf of the State,
SP and SHO in terms of the Rules of Business, separate written statements one by the then S.P. Lekhi Ram and Anr. by
Inspector Tara Chand (who registered the case) were filed on 14.7.1988. However, no written statement was filed on
behalf of the State of Haryana. The High Court before which several contentions were raised by the respective parties
examined each of the allegations in detail in the light of the explanatory and denial statement which according to the
High Court has not been either explained or denied by the State and rejected the plea of the appellants 2 and 3
submitting that it is wholly premature to say anything with regard to the truthfulness or otherwise of the allegations and
observed as follows:
1. ...it is clear that the allegations made are just imaginary and fantastic.
2. ...his (respondent No. 2 Dharam Pal) sole object in putting complaint Annexure P-9 was to set the machinery of the
criminal law in motion against the petitioner without verifying the truth or otherwise of his own allegations before
levelling them against the petitioner in the complaint Annexure P-9 and that he was solely depending upon the fishing
enquiry which may be undertaken by the police in the course of its investigation without being himself possessed or
known to or seen any material or documents justifying his allegations of benami purchases, or under valuation of
property allegedly purchased by the petitioner.
3. Allegations obtaining in Annexure P-9 are, therefore, the outcome of a desparate, frustrated mind....

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4. Irresponsible manner in which indiscriminate allegations have been levelled by Dharam Pal, respondent No. 5 against
the petitioner in Annexure P-9 is patent from the assertions made in respect of benami ownership of house No. 1028,
Friends Colony, New Delhi by the petitioner.
5. Respondent No. 5 appears to have made these allegations only to curry favour with respondent No. 2 and to avenge
his own insult of defeat in elections against the petitioner's wife. The charges levelled in the complaint Annexure P-9 by
respondent No. 5 against the petitioner are, therefore, all groundless.
6. It was only the S.P. Lekhi Ram and the Inspector Tara Chand both of whom filed their individual written statements
on July 14, 1988 more than eight months after the filing of the writ in December 1987, who tried to be more loyal to the
king than the king himself and in turn respectively ordered the registration of the case against the petitioner and
proceeded to the spot (God knows which one and for what purpose) with duly armed constabulary. Mala fides, if at all
these can be attributed are attributable to S.P. Lekhi Ram and Inspector Tara Chand but not to Chaudhary Devi Lal,
Chief Minister Haryana arrayed as respondent No. 2 in the writ petition.
23. With regard to the contention of non-application of mind on the part of the police officials, the High Court held
thus:
It thus appears that the allegation regarding application of mind by the S.H.O. Inspector Tara Chand of Police Station
Sadar, Hissar has been made only because the S.P. was feeling shallow under his feet... that all was not well with them
and both of them were feeling cold under their feet as to who amongst them would take the odium upon himself for
having done something which was in fact not done by either of them. Faced against the wall, they felt compelled on
14.7.1988 to put in hotch potch affidavits aforesaid which do not indicate any application of mind by either one of them,
much less the Superintendent of Police, Hissar, who was obliged in law to do so.
24. Finally after making reference to various decisions of this Court and in particular to State of West Bengal and Ors. v.
Swapan Kumar Guha and Ors. MANU/SC/0120/1982 : 1982CriLJ819 , the High Court concluded that the allegations
do not constitute a cognizable offence for commencing the lawful investigation and granted the relief as prayed for and
mulcted the fifth respondent with the costs of the writ petition. In the penultimate paragraph of its judgment, the
learned Judges cited a historical event, namely, a challenge made by Pores before Alaxander about which we will express
our view at the appropriate place of this judgment. The appellants on being aggrieved by the impugned judgment of the
High Court has preferred the present appeal. At this juncture we would like to point out that one Chhabil Dass, a third
party has filed an application accompanied by an affidavit praying to implead him as a party and stating that he has got
sufficient materials to substantiate the allegations averred in the complaint of the second respondent. As the applicant
Chhabil Dass was not a party to the proceedings before the High Court, his application is rejected.
25. Mr. Rajinder Sachhar, the learned senior counsel along with the learned Advocate General of Haryana State assisted
by Mr. Mahabir Singh appeared for the appellants whilst Mr. R.K. Garg, the learned senior counsel appeared for the
second respondent, Dharam Pal on whose complaint the impugned first information report had been registered and the
investigation was commenced. Mr. K. Parasaran, the learned senior counsel along with Mr. P. Chidambaram, the learned
senior counsel assisted by Mr. Gopal Subramaniam appeared on behalf of the first respondent. Mr. Rajinder Sachhar and
Mr. R.K. Garg made a cascade of vitriolic comments on the reasons assigned and the conclusions drawn therefrom by
the High Court and assailed the impugned judgment by making a frontal brunt asseverating that the instances of
corruption cited in the complaint by Dharam Pal which are in the increase both in volume and virulence, though so far
hidden from the public view, and those allegations taken either individually or collectively, unerringly and irrefragably
constitute a cognizable offence warranting firstly the registration of a case as contemplated Under Section 154(1) of the
Code and secondly imperatively demanding a thorough investigation in compliance with the various statutory provisions
particularly Sections 156, 157, 159 etc. falling under Chapter XII of the Code. According to them, the High Court has no
justification in riding its chariot over the track of investigation and thereby obliterating the same and the High Court in
doing so has committed a grave and substantial illegality by quashing the First Information Report and the further
proceedings of the investigation.
26. Mr. Parasaran vehemently urged that the impugned judgment is a well considered and well reasoned one and hence
there can be no justification for this Court in dislodging the unassailable conclusion. According to him, the deep rooted
political animosity and rivalry that Ch. Devi Lal had entertained on account of his failure in his attempt to become the

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Chief Minister of Haryana State in 1978 and 1982 which blew in with hot weather had uplifted the subterranean heat
resulting in the out-pouring of character assassination against Ch. Bhajan Lal. The complainant, Dharam Pal who
suffered a shameful defeat in the general election held in 1988 at the hands of Jasma Devi, wife of Ch. Bhajan Lal and
who is a stooge in the hands of Ch. Devi Lal is used as an instrument to present this complaint containing false and
scurrilous allegations.
27. All the learned Counsel appearing for all the parties took much pain and advanced their eloquent arguments with the
aid of a series of decisions of this Court, but occasionally punctured with inflamed rhetoric and surcharged with
emotions. In addition to their oral arguments they also filed written submissions. We after carefully and assiduously
examining the contentions and counter-contentions advanced by all the parties both on the legal and factual aspects and
after scrupulously scanning the materials placed on record and examining the written arguments submitted by the
parties, would like to deal with those contentions seriatim.
28. Before discussing which of the submissions ought to prevail, we shall in the foremost deal with the legal principles
governing the registration of a cognizable offence and the investigation arising thereon. Section 154(1) is the relevant
provision regarding the registration of a cognizable offence and that provision reads as follows:
Every information relating to the commission of a cognizable offence, if given orally to an officer-in-charge of a police
station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such
information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the
substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may
prescribe in this behalf.
29. The above Sub-section correspondents to Section 154 of the old Code (Act of 1898 to which various amendments
are made by Act XXVI of 1955 and also to Section 154 of the CrPC of 1882 (Act X of 1882) except for the slight
variation in that expression 'Local Government' had been used in 1882 in the place of 'State Government'. Presently, on
the recommendations of the 41st Report of the Law Commission, the Sub-sections 2 and 3 have been newly added but
we are not concerned with those provisions as they are not relevant for the purpose of the disposal of this case except
for making some reference at the appropriate places, if necessitated. Section 154(1) regulates the manner of recording
the First Information Report relating to the commission of a cognizable offence.
30. The legal mandate enshrined in Section 154(1) is that every information relating to the commission of a "cognizable
offence" (as defined Under Section 2(c) of the Code) if given orally (in which case it is to be reduced into writing) or in
writing to "an officer incharge of a police station" (within the meaning of Section 2(o) of the Code) and signed by the
informant should be entered in a book to be kept by such officer in such form as the State Government may prescribe
which form is commonly called as "First Information Report" and which act of entering the information in the said
form is known as registration of a crime or a case.
31. At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in
compliance with the mandate of Section 154(1) of the Code, the concerned police officer cannot embark upon an
enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a
case on the ground that the information is not reliable or credible. On the other hand, the officer incharge of a police
station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the
commission of an offence which he is empowered Under Section 156 of the Code to investigate, subject to the proviso
to Section 157. (As we have proposed to make a detailed discussion about the power of a police officer in the field of
investigation of a cognizable offence within the ambit of Sections 156 and 157 of the Code in the ensuing part of this
judgment, we do not propose to deal with those sections in-extensor in the present context). In case, an officer incharge
of a police station refuses to exercise the jurisdiction vested on him and to register a case on the information of a
cognizable offence, reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal
can send the substance of the information in writing and by post to the Superintendent of Police concerned who if
satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself
or direct an investigation to be made by any police officer subordinate to him in the manner provided by Sub-section 3
of Section 154 of the Code.

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32. Be it noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously
used the expression "information" without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the
expressions, "reasonable complaint" and "credible information" are used. Evidently, the non-qualification of the word
"information" in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police
officer should not refuse to record an information relating to the commission of a cognizable offence and to register a
case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other
words, 'reasonableness' or 'credibility' of the said information is not a condition precedent for registration of a case. A
comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely
thought it fit to employ only the word "information" without qualifying the said word. Section 139 of the CrPC of 1861
(Act XXV of 1861) passed by the Legislative Council of India read that 'every complaint or information' preferred to an
officer incharge of a police station should be reduced into writing which provision was subsequently modified by Section
112 of the Code of 1872 (Act X of 1872) which thereafter read that 'every complaint' preferred to an officer incharge of
a police station shall be reduced in writing. The word 'complaint' which occurred in previous two Codes of 1861 and
1872 was deleted and in that place the word 'information' was used in the Codes of 1882 and 1898 which word is now
used in Sections 154, 155, 157 and 190(c) of the present Code of 1973(Act II of 1974). An overall reading of all the
Codes makes it clear that the condition which is sine-qua-non for recording a First Information Report is that there
must be an information and that information must disclose a cognizable offence.
33. It is, therefore, manifestly clear that if any information disclosing a organizable offence is laid before an officer
incharge of a police action satisfying the requirements of Section 154(1) of the Code, the void police officer has no other
option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such
information.
34. In this connection, it may be noted that though a police officer cannot investigate a non-cognizable offence on his
own as in the case of cognizable offence, he can investigate a non-cognizable offence under the order of a Magistrate
having power to try such non-cognizable case or commit the same for trial within the terms Under Section 155(2) of the
Code but subject to Section 155(3) of the Code. Further, under the newly introduced Sub-section (4) to Section 155,
where a case relates to two offences to which atleast one is cognizable, the case shall be deemed to be a cognizable case
notwithstanding that the other offences are non-cognizable and, therefore, under such circumstances the police officers
can investigate such offences with the same powers as he has while investigating a cognizable offence.
35. The next key question that arises for consideration is whether the registration of a criminal case Under Section
154(1) of the Code ipso facto warrants the setting in motion of an investigation under Chapter XII of the Code.
36. Section 157(1) requires an Officer Incharge of a Police Station who 'from information received or otherwise' has
reason to suspect the commission of an offence-that is a cognizable offence-which he is empowered to investigate
Under Section 156, to forthwith send a report to a Magistrate empowered to take cognizance of such offence upon a
police report and to either proceed in person or depute any one of his subordinate Officers not being below such rank
as the State Government may, by general or special order, prescribe in this behalf, to proceed to the spot, to investigate
the facts and circumstances of the case and if necessary, to take measures for the discovery and arrest of the offender.
This provision is qualified by a proviso which is in two parts (a) and (b). As per Clause (a) the Officer Incharge of a
Police Station need not proceed in person or depute a subordinate officer to make an investigation on the spot if the
information as to the commission of any such offence is given against any person by name and the case is not of a
serious nature. According to Clause (b), if it appears to the Officer Incharge of a Police Station that there is no sufficient
ground for entering on an investigation, he shall not investigate the case. Sub-section (2) of Section 157 demands that in
each of the cases mentioned in Clauses (a) and (b) of the proviso to Sub-section (1) of Section 157, the Officer Incharge
of the Police Station must state in his report, required to be forwarded to the Magistrate his reasons for not fully
complying with the requirements of Sub-section (1) and when the police officer decides not to investigate the case for
the reasons mentioned in Clause (b) of the proviso, he in addition to his report to the Magistrate, must forthwith notify
to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not
investigate the case or cause the case to be investigated. Section 156(1) which is to be read in conjunction with Section
157(1) states that any Officer Incharge of a Police Station may without an order of a Magistrate, investigate any
cognizable case which a Court having jurisdiction over the local area within the limits of the concerned police station
would have power to enquire into or try under provisions of Chapter XIII. Section 156(3) vests a discretionary power on
a Magistrate empowered Under Section 190 to order an investigation by a police officer as contemplated in Section
156(1). It is pertinent to note that this provision does not empower a Magistrate to stop an investigation undertaken by
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the police. In this context, we may refer to an observation of this Court in State of Bihar and Anr. v. J.A.C. Saldanha and
Ors. MANU/SC/0253/1979 : 1980CriLJ98 at page 568 extending the power of the Magistrate Under Section 156(3) to
direct further investigation after submission of a report by the investigating officer Under Section 173(2) of the Code.
The said observation reads thus:
The power of the Magistrate Under Section 156(3) to direct further investigation is clearly an independent power and
does not stand in conflict with the power of the State Government as spelt out hereinbefore. The power conferred upon
the Magistrate Under Section 156(3) can be exercised by the Magistrate even after submission of a report by the
investigating officer which would mean that it would be open to the Magistrate not to accept the conclusion of the
investigating officer and direct further investigation. This provision does not in any way affect the power of the
investigating officer to further investigate the case even after submission of the report as provided in Section 173(8).
37. The above two provisions-that is Sections 156 and 157 of the Code are followed by Section 159 which empowers a
Magistrate, on receipt of a report forwarded by the police Under Section 157 to direct an investigation or if he thinks fit,
at once to proceed or depute any Magistrate subordinate to him to proceed, to hold a preliminary enquiry into, or
otherwise to dispose of, the case in the manner provided in the Code. The expression "on receiving such a report"
evidently refers to the receipt of a report contemplated in Section 157(2), because the question of directing an
investigation by the Magistrate cannot arise in pursuance of the report referred to under Sub-section (1) of Section 157
intimating that the police officer has proceeded with the investigation either in person or by deputing any one of his
subordinate officers. This Court in S.N. Sharma v. Bipen Kumar Tiwari and Ors. MANU/SC/0182/1970 :
1970CriLJ764 while interpreting the scope of Section 159 of the Code has stated thus:
This Section first mentions the power of the Magistrate to direct an investigation on receiving the report Under Section
157, and then states the alternative that, if he thinks fit, he may at once proceed, or depute any Magistrate subordinate to
him to proceed, to hold a preliminary enquiry into, or otherwise to dispose of, the case. On the face of it, the first
alternative of directing an investigation cannot arise in a case where the report itself shows that investigation by the
police is going on in accordance with Section 156. It is to be noticed that the second alternative does not give the
Magistrate an unqualified power to proceed himself or depute any Magistrate to hold the preliminary enquiry. That
power is preceded by the condition that he may do so, "if he thinks fit". The use of this expression makes it clear that
Section 159 is primarily meant to give to the Magistrate the power of directing an investigation in cases where the police
decide not to investigate the case under the proviso to Section 157(1), and it is in those cases that, if thinks fit, he can
choose the second alternative.
38. The Privy Council in Emperor v. Khwaja Nazir Ahmad MANU/PR/0007/1944 while dealing with the statutory
right of the police Under Sections 154 and 156 of the Code within its province of investigation of a cognizable offence
has made the following observation:
...so it is of the almost importance that the judiciary should not interfere with the police in matters which are within their
province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory
right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any
authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held
possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of
the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due
observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course,
subject to the right of the Court to intervene in an appropriate case when moved Under Section 491, Criminal P.C. to
give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when
a charge is preferred before it and not until then.
39. Justice D.A. Desai speaking for the Bench in State of Bihar and Anr. v. J.A.C. Saldanha and Ors. (albeit) while
dealing with the powers of investigation of a police officer as contemplated in Section 156 of the CrPC has stated thus:
There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment.
Investigation of an offence is the field exclusively reserved for the executive through the police department the
superintendence over which vests in the State Government. The executive which is charged with a duty to keep vigilance
over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its

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bounden duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence
having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed
and the investigating officer submits report to the Court requesting the Court to take cognizance of the offence Under
Section 190 of the Code its duty comes to an end.
40. See also Abhinandan v. Dinesh MANU/SC/0054/1967 : 1968CriLJ97 .
41. The core of the above Sections namely 156, 157 and 159 of the Code is that if a police officer has reason to suspect
the commission of a cognizable offence, he must either proceed with the investigation or cause an investigation to be
proceeded with by his subordinate; that in a case where the police officer sees no sufficient ground for investigation, he
can dispense with the investigation altogether; that the field of investigation of any cognizable offence is exclusively
within the domain of the investigating agencies over which the Courts cannot have control and have no power to stifle
or impinge upon the proceedings in the investigation so long as the investigation proceeds in compliance with the
provisions relating to investigation and that it is only in a case wherein a police officer decides not to investigate an
offence, the concerned Magistrate can intervene and either direct an investigation or in the alternative, if he thinks fit, he
himself can, at once proceed or depute any Magistrate subordinate to him to proceed to hold a preliminary inquiry into
or otherwise to dispose of the case in the manner provided in the Code.
42. We shall now examine as to what are the requirements to be satisfied by an Officer incharge of a police station
before he enters into the realm of investigation of a cognizable offence after the stage of registration of the offence
Under Section 154(1). We have already found that the police have Under Section 154(1) of the Code a statutory duty to
register a cognizable offence and thereafter Under Section 156(1) a statutory right to investigate any cognizable case
without requiring sanction of a Magistrate. However, the said statutory right to investigate a cognizable offence is subject
to the fulfilment of a prerequisite condition, contemplated in Section 157(1). The condition is that the officer incharge of
a police station before proceeding to investigate the facts and circumstances of the case should have "reason to suspect"
the commission of an offence which he is empowered Under Section 156 to investigate. Section 135 of the CrPC of
1861 (Act XXV of 1861) required the police officer on receipt of a complaint or information constituting any of the
offences specified in column 3 of the schedule annexed to that Act should proceed with the investigation, but this Code
did not require the condition of entertaining the reason to suspect the commission of an offence before commencing
the investigation. Subsequently, in the CrPC of 1872 a provision, namely, Section 114 which was more or less similar to
the present Section 157(1) was introduced which provision required the police officer to have "reason to suspect" the
commission of a cognizable offence before he proceeded to investigate the facts and circumstances of the case.
Thereafter in the CrPC of 1882 a provision, namely, Section 157 which was identical to that of the present Section 157
except for some variations in the latter part of that Section was introduced which provision also required the police
officer to have "reason to suspect" the commission of a cognizable offence. May it be noted that the Law Commission
of India in its 41st report expressed its opinion that Section 157 did not call for any amendment.
43. The expression "reason to suspect" as occurring in Section 157(1) is not qualified as in Section 41(a) and (g) of the
Code, wherein the expression, "reasonable suspicion" is used. therefore, it has become imperative to find out the
meaning of the words "reason to suspect" which words are apparently clear, plain and unambiguous. Considering the
context and the object of the procedural provision in question, we are of the view that only the plain meaning rule is to
be adopted so as to avoid any hardship or absurdity resulting therefrom and the words are used and also to be
understood only in common parlance. We may, in this behalf, refer to a decision of the Privy Council in Pakala
Narayanaswami v. Emperor MANU/PR/0001/1939 wherein Lord Atkin said as follows:
When the meaning of the words is plain, it is not the duty of Courts to busy themselves with supposed intentions.... It,
therefore, appears inadmissible to consider the advantages or disadvantages of applying the plain meaning whether in the
interests of the prosecution or accused.
44. The word 'Suspect' is lexically defined in Webster's Third International Dictionary as follows:
Suspect-to look up at, suspect; the act of suspecting or the condition of being suspected... to have doubts of; be dubious
or suspicions about; (2) to imagine (one) to be guilty or culpable on slight evidence or without proof... (3) to imagine to
be or be true, likely or probable: have a suspicion, intimation or inkling of.

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45. In Corpus Juris Seconded (Vol. 83) at page 923 the meaning of the word 'Suspect' is given thus:
The term 'suspect', which is not technical, is defined as meaning to imagine to exist; have some, although insufficient,
grounds for inferring; also to have a vague notion of the existence of, without adequate proof; mistrust; surmise. It has
been distinguished from 'believe.
46. In the same volume, the expression "suspicion" is defined at page 927 as follows:
The act of suspecting or the state of being suspected; the imagination, generally of something ill; the imagination of the
existence of something without proof, or upon very slight evidence, or upon no evidence at all....
47. In words and Phrases (Permanent Edition 40A) at page 590, the word 'suspicion' is defined thus:
Suspicion' implies a belief or opinion as to guilt, based on facts or circumstances which do not amount to proof.
Scaffido v. State 254 N.W. 651. The state of mind which in a reasonable man would lead to inquiry is called mere
'suspicion'. Stuart v. Farmers', Bank of Cuba City 117 N.W. 820.
Again at page 591 the said word is expounded as follows:
The word 'suspicion' is defined as being the imagination of the existence of something without proof, or upon very
slight evidence, or upon no evidence at all. Cook v. Singer Sewing Mach. Co. 32 P. 2d 430, 431, 138 Cal. App. 418.
48. See also Emperor v. Vimlabai Deshpande MANU/PR/0009/1946; United States v. Cortez 66 L.Ed. 2d
(US)(SCR)623 (II (A (3); and Dallison v. Caffery [1964] 2All E.R. 610.
49. One should not lose sight of the fact that Section 157(1) requires the police officer to have reason to suspect only
with regard to the commission of an offence which he is empowered Under Section 156 to investigate, but not with
regard to the involvement of an accused in the crime. therefore, the expression "reason to suspect the commission of an
offence" would mean the sagacity of rationally inferring the commission of a cognizable offence based on the specific
articulate facts mentioned in the First Information Report as well in the Annexures, if any, enclosed and any attending
circumstances which may not amount to proof. In other words, the meaning of the expression "reason to suspect" has
to be governed and dictated by the facts and circumstances of each case and at that stage the question of adequate proof
of facts alleged in the first information report does not arise. In this connection, we would like to recall an observation
of this Court made in State of Gujarat v. Mohanlal J. Porwal MANU/SC/0288/1987 : 1987CriLJ1061 while interpreting
the expression 'reasonable belief. It runs thus:
Whether or not the officer concerned had entertained reasonable belief under the circumstances is not a matter which
can be placed under legal microscope, with an over-indulgent eye which sees no evil anywhere within the range of its
eyesight. The circumstances have to be viewed from the experienced eye of the officer who is well equipped to interpret
the suspicious circumstances and to form a reasonable belief in the light of the said circumstances.
50. See also Pukhraj v. D.R. Kohli [1962] 3 SCR 866.
51. Resultantly, the condition precedent to the commencement of the investigation Under Section 157(1) of the Code is
the existence of the reason to suspect the commission of a cognizable offence which has to be, prima facie disclosed by
the allegations made in the first information laid before the police officer Under Section 154(1).
52. In State of West Bengal and Ors. v. Swapan Kumar Guha and Ors. (albeit) Chandrachud, C.J. while agreeing with
the judgment of Justice A.N. Sen with which judgment Justice Vardarajan also agreed, has expressed his view in his
separate judgment on the above point under discussion as follows:
The position which emerges from these decisions and the other decisions which are discussed by brother A.N. Sen is
that the condition precedent to the commencement of investigation Under Section 157 of the Code is that the FIR must
disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police have an
Page 103
unfettered discretion to commence investigation Under Section 157 of the Code. Their right of enquiry is conditioned
by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason
so to suspect unless the F.I.R., prima facie, discloses the commission of such offence.
53. As pointed out in the earlier part of this judgment, Section 157(1) is qualified by a proviso which is in two parts (a)
and (b). Clause (a) of the proviso is only an enabling provision with which we are not very much concerned. However,
Clause (b) of the said proviso imposes a fetter on a police officer directing him not to investigate a case where it appears
to him that there is no sufficient ground in entering on an investigation. As Clause (b) of the proviso permits the police
officer to satisfy himself about the sufficiency of the ground even before entering on an investigation, it postulates that
the police officer has to draw his satisfaction only on the materials which were placed before him at that stage, namely,
the first information together with the documents, if any, enclosed. In other words, the police officer has to satisfy
himself only on the allegations mentioned in the first information before he enters on an investigation as to whether
those allegations do constitute a cognizable offence warranting an investigation.
54. From the above discussion, it is pellucid that the commencement of investigation by a police officer is subject to two
conditions, firstly, the police officer should have reason to suspect the commission of a cognizable offence as required
by Section 157(1) and secondly, the police officer should subjectively satisfy himself as to whether there is sufficient
ground for entering on an investigation even before he starts an investigation into the facts and circumstances of the
case as contemplated under Clause (b) of the proviso to Section 157(1) of the Code.
55. The next point for consideration is whether Section 157 of the Code gives the police officers carte blanche drawing
no legal bounds in the province of investigation and whether the powers of the police officers in the field of
investigation are wholly immune from judicial review ability.
56. The above questions have been examined by the Courts on several occasions and they have by judicial
pronouncements carved out an area, limited though it be, within which the legality of the exercise of powers by police
officers in the realm of investigation and yet be subjected to judicial reviewability and scrutiny and the immunity enjoyed
by the police officers is only a conditional immunity. The Privy Council in Nazir Ahmad's case (albeit) though has ruled
that it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their
province has provided an exception to that above observation to the effect that if no cognizable offence or no case of
any kind is disclosed, the police would have no authority to undertake the investigation.
57. This Court on several occasions has expressed its concern for personal liberty of a citizen and also has given warning
about the serious consequences that would flow when there is non-observance of procedure by the police while
exercising their unfettered authority. Gajendragadkar, J speaking for the Bench in R.P. Kapur v. The State of Punjab
MANU/SC/0086/1960 : 1960CriLJ1239 states as follows:
It is of utmost importance that investigation into criminal offence must always be free from any objectionable features
or infirmities which may legitimately lead to the grievance of the accused that the work of investigation is carried on
unfairly and with any ulterior motive.
58. Krishna Iyer, J. in Nandini Satpathy v. P.L. Dani and Anr. MANU/SC/0139/1978 : 1978CriLJ968 has expressed his
view thus:
...a police officer who is not too precise, too sensitive and too constitutionally conscientious is apt to trample under foot
the guaranteed right of testimonials tacitness.
59. Bhargava, J. speaking for the Bench in S.N. Sharma v. Bipen Kumar Tiwari and Ors. (albeit) has stated thus:
It appears to us that, though the CrPC gives to the police unfettered power to investigate all cases where they suspect
that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by
invoking the power of the High Court under Article 226 of the Constitution under which, if the High Court could be
convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always
issue a writ of mandamus restraining the police officer from misusing his legal powers. The fact that the Code does not

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contain any other provision giving power to a Magistrate to stop investigation by the police cannot be a ground for
holding that such a power must be read in Section 159 of the Code.
60. Mathew, J. in his majority judgment in Prabhu Dayal Deorath etc. etc. v. The District Magistrate, Kamrup and Ors.
MANU/SC/0056/1973 : 1974CriLJ286 while emphasising the preservation of personal liberty has expressed his view
thus:
We say, and we think it is necessary to repeat, that the gravity of the evil to the community resulting from antisocial
activities can never furnish an adequate reason for invading the personal liberty of a citizen, except in accordance with
the procedure established by the Constitution and the laws. The history of personal liberty is largely the history of
insistence on observance of procedure. Observance of procedure has been the bastion against wanton assaults on
personal liberty over the years. Under our Constitution, the only guarantee of personal liberty for a person is that he
shall not be deprived of it except in accordance with the procedure established by law.
61. Chandrachud, C.J. in Swapan Kumar Guha's case while examining the power of a police officer in the field of
investigation of a cognizable offence has affirmed the view expressed by Mathew, J and observed as follows:
There is no such thing like unfettered discretion in the realm of powers defined by statutes and indeed, unlimited
discretion in that sphere can become a ruthless destroyer of personal freedom. The power to investigate into cognizable
offences must, therefore, be exercised strictly on the condition on which it is granted by the Code.
62. The sum and substance of the above deliberation results to a conclusion that the investigation of an offence is the
field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to
investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions falling under
Chapter XII of the Code and the Courts are not justified in obliterating the track of investigation when the investigating
agencies are well within their legal bounds as aforementioned. Indeed, a noticeable feature of the scheme under Chapter
XIV of the Code is that a Magistrate is kept in the picture at all stages of the police investigation but he is not authorised
to interfere with the actual investigation or to direct the police how that investigation is to be conducted. But if a police
officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of
any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the Court on
being approached by the person aggrieved for the redress of any grievance, has to consider the nature and extent of the
breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons
since human dignity is a dear value of our Constitution. Needs no emphasis that no one can demand absolute immunity
even if he is wrong and claim unquestionable right and unlimited powers exercisable upto unfathomable cosmos. Any
recognition of such power will be tantamount to recognition of 'Divine Power' which no authority on earth can enjoy.
63. Here-to-fore, we have dealt with the intendment of the various statutory provisions relating to the registration of the
First Information Report, the statutory duty cast on the police officers to investigate the cognizable offences, the such
authority of the police officers in-the field of investigation and the circumscribed limits imposed on such authority in the
conduct of investigation.
64. The central issue involved for scrutiny is whether the order of the Court in quashing the First Information Report
and the proceeding of the investigation is legally sustainable and if not, to what extent the said order suffers from legal
infirmity.
65. Mr. K. Parasaran forcefully contended that the allegations averred in the complaint even if taken at their face value
and accepted in its entirety do not constitute an offence demanding either the registration of a case or commencement
of an investigation; that it would be mainfestly unjust to allow the procedure of criminal law to be proceeded with
against Ch. Bhajan Lal and that the High Court on a proper appreciation of the material placed before it has come to a
correct and indisputable conclusion based on the logical reasonings that no offence is disclosed and no case is made out.
According to him the allegations of corruption wrapped in a cocoon of ambiguity, falsity and vagueness demonstrate
only the personal and old political rivalry that existed over a period between Ch. Devi Lal and Ch. Bhajan Lal rather than
constituting a criminal offence.

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66. Reverting to the severe critical charges levelled against the validity of the impugned judgment and the recrimination
made on behalf of Ch. Bhajan Lal, we shall at the threshold anatomize the reasons imputed by the High Court for
quashing the First Information Report in the back drop of the legal principles enunciated in the preceding part of this
judgment.
67. The complainant Dharam Pal has cited as many as 20 instances in his complaint with an exordial note that Ch.
Bhajan Lal before 1969 was only a man of ordinary means without having any definite source of income and that he
after becoming a Minister and then as Chief Minister, accumulated enormous property worth crores of rupees under
shady transactions inclusive of benami transactions in the names of his family members, relatives and persons close to
him by misusing his power and position. Added to that in the final part of the complaint he has alleged "Besides this,
Bhajan Lal has other properties in his name or benami like shares in cinemas of Sirsa and Adampur, trucks and cars at
Adampur and Hissar and Fatehbad, petrol pump at Agroha Mor and is possessing gold, silver and diamond ornaments
valued about Rs. 5 crores which are far beyond the legal means of Ch. Bhajan Lal."
68. Both in the Writ Petition (Writ Petition No. 9172/87) filed before the High Court as well in the counter affidavit
filed before this Court, Ch. Bhajan Lal (the first respondent herein) has attempted to answer those allegations levelled
against him by (1) giving a detailed account revealing a chronicle of the old political rivalry that existed between him on
the one hand and Ch. Devi Lal and Dharam Pal on the other and a brief summary of a spate of criminal cases in which
the parties to this proceeding and their men were embroiled and (2) offering an explanation to some of the allegations
and emphatically abjuring the rest. In support of his assertions made on oath in the counter affidavit, he has enclosed 11
annexures. An additional affidavit has been filed by Dharam Pal by way of amplification alleging that Bhajan Lal is
constructing a palatial house worth about Rs. 50 lakhs, the built-in area of which is not less than 21,100sq. ft.
69. During the course of the hearing of the case, an un-numbered interlocutory application in the Special Leave Petition
enclosed with a copy of an un-numbered Writ Petition (Civil) of 1988 preferred before the High Court of Delhi by M/s.
Bhanu Steels Pvt. Ltd., D-1028, New Friends Colony, New Delhi was filed on behalf of Dharam Pal for establishing two
facts namely (1) that the finding of the High Court relating to the Instance No. 12 in the complaint alleging that the
house No. D-1028, New Friends Colony valuing about Rs. 75 lakhs has been bought under benami transaction, holding
'This one glaring instance shows how the mala fide and false First Information Report is recorded against the petitioner'
is falsified and (2) that Bhanu Steels Pvt. Ltd. had entered into an agreement of sale dated 22.9.1988 with Mrs. Roshni
Bishnoi (who is the 7th respondent in the said writ petition and who is none other than the daughter of Ch. Bhajan Lal)
in respect of the above property namely D-1028, New Friends Colony, New Delhi for a consideration of Rs. 40 lakhs
plus unearned increase payable to the D.D.A. which at present effective rates work out to Rs. 14,05,515.
70 .Mr. Chidambaram took a strong objection stating that these untested allegations are introduced only to prejudice the
Court and, therefore, the Court should refrain from considering these allegations. We may straightaway say that we do
not take note of these new allegations as we are not called upon at this stage to embark upon an enquiry whether the
allegations in the First Information Report are reliable or not and thereupon to render a finding whether any of the
allegations is proved. These are matters which can be examined only by the concerned Court after the entire materials
are placed before it on a thorough investigation.
71. As pointed out earlier no counter was filed before the High Court on behalf of the first appellant (the State of
Haryana), but only the second and third appellants filed separate written statements at a later stage mainly contending
that it is wholly premature to give any reply with regard to the averments made in the Writ Petition. The High Court
went in detail of the motive alleged by Ch. Bhajan Lal and then examined the allegations in the light of the untested
explanation and denial made by Bhajan Lal and finally concluded that "The charges levelled in the complaint Annexure
P-9 by respondent No. 5 against the petitioner are, therefore, all groundsless." Since we have already reproduced some
of the observations of the High Court in the earlier portion of this judgment, it is unnecessary to reproduce them in this
connection. The impugned judgment spells out that the learned Judges of the High Court had felt that the non-filing of
a written statement by a competent authority of the State Government by way of reply to the averments made in the
Writ Petition is a serious flaw on the part of appellants and as such the averments of Ch. Bhajan Lal should be held as
having disproved the entire crimination alleged in the F.I.R. The above view of the High Court in our opinion, is neither
conceivable nor comprehensible. Further no adverse inference could be drawn on the mere non-filing of a written
statement by the State of Haryana in cases of this nature especially when the matter relates to serious disputed facts, yet
to be investigated. As rightly pointed out by Mr. Rajinder Sachhar the stage is pre-mature and as such the Government
could not be expected to have in its possession all the details in support of the allegations made in the complaint before
Page 106
any enquiry or investigation is launched and completed. Similarly, the appellants 2 and 3 who are only police officials
also cannot be expected to give a detailed reply to the averments made in the Writ Petition when the investigation has
not at all proceeded with. It will be appropriate to refer to a decision of this Court in State of Bihar and Anr. v. J.A.C.
Saldanha and Ors. MANU/SC/0253/1979 : 1980CriLJ98 wherein this Court has disapproved the exercise of the extra-
ordinary power of the High Court in issuing a prerogative writ quashing the prosecution solely on the basis of the
averments made in the affidavit in the following words:
The High Court in exercise of the extraordinary jurisdiction committed a grave error by making observations on
seriously disputed questions of facts taking its cue from affidavits which in such a situation would hardly provide any
reliable material. In our opinion the High Court was clearly in error in giving the direction virtually amounting to a
mandamus to close the case before the investigation is complete. We say no more.
72. It is true that some of the allegations do suffer from misty vagueness and lack of particulars. Further as urged by Mr.
Parasaran, there are no specific averments that either Ch. Bhajan Lal or his relations and friends had no source of
income to accumulate the properties now standing in their names and that Ch. Bhajan Lal showed any favour to them by
misusing his official power. In our considered view, these are all matters which would be examined only during the
course of investigation and thereafter by the court on the materials collected and placed before it by the investigating
agencies. The question whether the relations and friends of Ch. Bhajan Lal have independently purchased the properties
out of their own funds or not also cannot be decided by the Court at this stage on the denial statement of Bhajan Lal
alone.
73. While Mr. Rajinder Sachhar and Mr. Garg took much pain to show that the reasons given by the High Court in
respect of each of the instances are not legally sustainable, Mr. Parasaran submitted a tabular statement by listing out
each of the instances of the alleged corruption indicted in the complaint, the explanation given in the Writ Petition as
well as in the counter affidavit related thereto and the reply in the rejoinder and urged that the allegations in the F.I.R.
are nothing but a conglomeration of calumny and falsehood. As the entire matter stands only at the stage of the
registration of the case and the investigation has not at all proceeded with on account of the order of stay granted by the
High Court, we do not intend or propose to examine the truth or otherwise of each of the instances in snippet form and
thereafter string them together and express any opinion either way, since in our view any such opinion may affect the
case of either party or cripple the course of investigation.
74. An argument was advanced by Mr. Parasaran submitting that the proposition of law laid down by this Court in
Swapan Kumar Guha's case (albeit) holding that "the legal position appears to be that if an offence is disclosed, the
Court will not normally interfere with an investigation into the case" clearly shows that this Court has carved out an area
wherein the Courts can interfere in criminal proceedings at any stage if circumstances so warrant and quash the same.
Based on the above proposition of law, he states that as the allegations in the present case which demonstrably shown to
be speculative and false the judgment of the High Court quashing the proceedings has to be sustained. In our considered
view, this submission cannot be countenanced for the reasons-firstly we, at this premature stage, are unable to share the
view expressed by the High Court that the charges levelled against Ch. Bhajan Lal are all groundless and secondly
Swapan Kumar Guha's case cannot be availed of by the first respondent as the question that came up for determination
was entirely different. The facts in Swapan Kumar Guha's case were as follows:
75. Sanchaita Investments, a partnership firm was carrying on business as financiers and investors and in its business the
firm accepted loans or deposits from the general public for different periods repayable with interest, giving option to the
depositors for premature withdrawal. The firm was carrying on its business on a very extensive scale. While so, the
Parliament passed the Prize Chits and Money Circulation Schemes (Banning) Act, 1978. On 13.12.1980, the Commercial
Tax Officer, Bureau of Investigation, lodged a complaint of violation of the said Act by the firm with the police on the
ground that the amount in excess of 12% interest so paid showed that the Money Circulation Scheme was being
promoted and conducted for the making of quick and/or easy money. Two of the partners were arrested. Thereafter the
firm and its two partners filed the Writ Petition in the High Court challenging the validity of the First Information
Report and the proceedings arising out of the same. The question for consideration was as to whether the First
Information Report prima-facie disclosed the offence Under Section 4 read with Section 3 of the Act of 1978 in the light
of the requirement of Section 2(c) of the Act defining the expression "Money Circulation Scheme". This Court examined
that question with reference to the facts therein and ultimately held that the allegations did not attract the provisions of
Act of 1978. The question that arises for consideration in the present case is not the one as in Swapan Kumar Guha's
case.
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76. The High Court while quashing the impugned proceedings has made certain sweeping remarks by using the
expression 'imaginary and fantastic', 'the fishing enquiry', 'outcome of a desparate and frustrated mind'. Except
expressing our view that those remarks are not warranted, we refrain from making any more comment.
77. Mr. Parasaran made a mordacious criticism articulating that the impassioned and impetuous police officers in order
to show their loyalty to the third respondent, Ch. Devi Lal had over-stepped their permissible limits in taking a rash
decision in registering the F.I.R, and commencing the investigation and that the said First Information Report bears on
its face 'the stamp of hurry and want of care'. He, in this connection, drew our attention to an observation of the High
Court which reads thus:
Over zealous police officers, who tried to be more loyal to the king i.e. respondent No. 2 than the king himself however
fell into the trap laid by respondent No. 5 and ordered registration of the case and its investigation without any clue....
(Respondents 2 and 5 mentioned in the above observation are Ch. Devi Lal and Dharam Pal respectively).
78. In a perfect system of prevention and detection of crimes, undeniably the paramount duty of a police officer to
whom the commission of a cognizable offence is reported, is to register a case without causing any delay and promptly
commence the investigation without perverting or subverting the law. When such is the accepted principle, can it be said
that the police officers in the instant case have over-zealously taken a hasty decision by misusing their positions in
registering the case and commencing the investigation? To answer this query, let us recapitulate some salient facts on this
aspect. The complainant, Dharam Pal, presented the complaint on 12.11.1987 before Ch. Devi Lal whose officer on
special duty marked it to the DGP on the same day. The DGP sent it with his endorsement dated 12.11.1987 to the S.P.
Hissar, who received it on 21.11.1987. The S.P. on the same day made the endorsement "Please register a case and
investigate". In the affidavit filed before the High Court, the S.P. has stated that as there were serious allegations of
corruption against Ch. Bhajan Lal in the complaint constituting a prima-facie case Under Section 5(2) of the Act, he
made his endorsement on the same day and marked it to the SHO under his signature and that he, then, summoned the
SHO and handed over the complaint to him and the SHO also went through the contents of the complaint and was of
the opinion that a prima facie case Under Section 5(2) of the Act and Under Sections 161 and 165 IPC has been made
out and that the SHO took the complaint and left for his station for further necessary action. The SHO in his affidavit
filed before the High Court has corroborated the version of the S.P. in its entirety. The conduct of the SHO indicates
that he without losing any time registered the case and commenced the investigation by proceeding to the 'spot'
accompanied by armed constables. The allegations in the complaint cover the period commencing from 1969 and
ending with 1986 as noted in the F.I.R. Be it noted that by June 1987, Ch. Devi Lal became the Chief Minister. The
complaint was presented by Dharam Lal nearly 5 months after Devi Lal became the Chief Minister.
79. The gravamen of the accusation is that Ch. Bhajan Lal has amassed huge assets by misusing his ministerial authority
earlier to 1986 which assets are disproportionate to his known and licit sources of income. It has been repeatedly
pointed out that mere possession of any pecuniary resources or property is by itself not an offence, but it is the failure to
satisfactorily account for such possession of pecuniary resources or property that makes the possession objectionable
and constitutes the offence within the ambit of Section 5(1)(e) of the Act. therefore, a police officer with whom an
investigation of an offence Under Section 5(1)(e) of the Act is entrusted should not proceed with a pre-conceived idea of
guilt of that person indicted with such offence and subject him to any harassment and victimisation, because in case the
allegations of illegal accumulation of wealth are found during the course of investigation as baseless, the harm done not
only to that person but also to the office, he held will be incalculable and inestimable.
80. In this connection, it will be appropriate to recall the views expressed by Mitter, J. in Sirajuddin v. State of Madras
MANU/SC/0158/1970 : 1971CriLJ523 in the following words:
Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious
misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be
some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a
person specially one who like the appellant occupied the top position in a department, even if baseless, would do
incalculable harm not only to the officer in particular but to the department he belonged to, in general....The means
adopted no less than the end to be achieved must be impeccable.

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81. Mudholkar, J in a separate judgment in The State of Uttar Pradesh v. Bhagwant Kishore Joshi
MANU/SC/0066/1963 : 1964CriLJ140 while agreeing with the conclusion of Subba Rao, J (as he then was) has
expressed his opinion stating:
In the absence of any prohibition in the Code, express or implied, I am of opinion that it is open to a police officer to
make preliminary enquiries before registering an offence and making a full scale investigation into it.
82. We are in agreement with the views, expressed by Mitter, J and Mudholker, J in the above two decisions.
83. Now coming to the present case, we regret to note that the SP seems to have exhibited some over-enthusiasm,
presumably to please 'some one' and had directed the SHO to register the case and investigate the same even on the very
first day of the receipt of the complaint from the DGP, in whose office the complaint was lying for nearly 9 days. This
unprecedented over-enthusiasm shown by the S.P., without disclosing the reasons for making an order entrusting the
investigation to the SHO who is not a designated officer Under Section 5A(1), about which we shall advert to in detail in
the ensuing part of the judgment, really shocks ones' sense of justice and fair play even though the untested allegations
made in the complaint require a thorough investigation. Still, it is an inexplicable riddle as to why the S.P. had departed
from the normal rule and hastily ordered the S.H.O to investigate the serious allegations, levelled against a former Chief
Minister and a Minister in the Cabinet of the Central Government on the date of the registration of the case. However,
this conduct of the S.P. can never serve as a ground for quashing this F.I.R.
84. The nagging question that comes up for examination more often than not is under what circumstances and in what
categories of cases, a criminal proceeding can be quashed either in exercise of the extraordinary powers of the High
Court under Article 226 of the Constitution of India or in the exercise of the inherent powers of the High Court Under
Section 482 of the Code. This question has often been hotly debated before this Court and various High Courts.
Though in a series of decisions, this question has been answered on several occasions by this apex court, yet the same
still comes up for consideration and is seriously agitated.
85. Mr. Rajinder Sachhar and Mr. R.K. Garg vehemently attacked the judgment under appeal contending that the High
Court in the exercise of its extra-ordinary jurisdiction under Article 226 should not have interfered with the unbridled
power of the police officials and quashed the entire proceedings from the stage of the registration of the case especially
when the allegations made in the complaint limpidly constitute offences both under the Prevention of Corruption Act
and the Indian Penal Code and this unjustifiable interference is in clear violation of the principles laid down by this
Court in a host of decisions. In support of their submissions, they drew our attention to a catena of decisions, of which
we will presently refer to a few.
86. The Judicial Committee in its oft-quoted decision, namely, King Emperor v. Khwaja Mazir Ahmad (Albeit) though
strongly observed that the judiciary should not interfere with the police in matters which are within their province, has
qualified the above statement of law by saying:
No doubt, if no cognizable offence is disclosed, and still more, if no offence of any kind is disclosed, the police would
have no authority to undertake an investigation.
87. The above observation shows that an investigation can be quashed if no cognizable offence is disclosed by the F.I.R.
88. Gajendragadkar, J. speaking for the Court while considering the inherent powers of the High Court in quashing the
First Information Report Under Section 561-A of the old Code (corresponding to Section 482 of the new Code) in R.P.
Kapur v. The State of Punjab (cited above) at page 393 made the following observation:
Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at
their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of
appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide
whether the offence alleged is disclosed or not. In such cases, it would be legitimate for the High Court to hold that it
would be mainfestly unjust to allow the process of the criminal court to be issued against the accused person.

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89. In the case of State of West Bengal v. S.N. Basak MANU/SC/0114/1962 : [1963]2SCR52 the accused therein
contended that the statutory power of investigation given to police under Chapter XIV of the Code is not available in
respect of an offence triable under the West Bengal Criminal Law Amendment (Special Courts) Act 1949 and that being
so, the investigation undertaken by the police was without jurisdiction. The Court while negativing that contention and
holding that the application filed by the accused Under Section 439 and Section 561-A of the old Code was liable to be
dismissed, observed that the statutory powers given to the police Under Sections 154 and 156 of the Code to investigate
into the circumstances of an alleged cognizable offence without authority from a magistrate cannot be interfered with by
the exercise of power Under Section 439 or under the inherent power conferred by Section 561-A of the old Code. But
in that case, no question arose as to whether the allegations in the FIR disclosed any offence at all.
90. In S.N. Sharma v. Bipen Kumar Tiwari and Ors. (supra) a First Information Report was lodged naming an
Additional District Magistrate (Judicial) as a principal accused. His application Under Section 159 of the Code asking
that the Judicial Magistrate should himself conduct a preliminary enquiry was dismissed. However, the Court has pointed
out thus:
It appears to us that, though the CrPC gives to the police unfettered power to investigate all cases where they suspect
that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by
invoking the power of the High Court under Article 226 of the Constitution under which, if the High Court could be
convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always
issue a writ of mandamus restraining the police officer from misusing his legal powers. The fact that the Code does not
contain any other provision giving power to a Magistrate to stop investigation by the police cannot be a ground for
holding that such a power must be read in Section 159 of the Code.
91. In Hazari Lal Gupta v. Rameshwar Prasad and Anr. etc. MANU/SC/0117/1971 : 1972CriLJ298 , this Court has
stated thus:
In exercising jurisdiction Under Section 561-A of the Criminal Procedure Code, the High Court can quash proceedings
if there is no legal evidence or if there is any impediment to the institution or continuance of proceedings but the High
Court does not ordinarily inquire as to whether the evidence is 'reliable or not'. Where again, investigation into the
circumstances of an alleged cognizable offence is carried on under the provisions of the Criminal Procedure Code, the
High Court does not interfere with such investigation because it would then be the impeding investigation and
jurisdiction of statutory authorities to exercise power in accordance with the provisions of the Criminal Procedure Code.
92. In Jehan Singh v. Delhi Administration MANU/SC/0147/1974 : 1974CriLJ802 , the application filed by the accused
Under Section 561-A of the old Code for quashing the investigation was dismissed as being premature and incompetent
on the finding that prime facie, the allegations in the FIR, if assumed to be correct, constitute a cognizable offence.
93. This Court in Amar Nath v. State of Haryana MANU/SC/0068/1977 : 1977CriLJ1891 has pointed out that the
inherent powers of the Court can ordinarily be exercised when there is no express provision on the subject matter and
that when there is an express provision, barring a particular remedy the Court cannot resort to the exercise of inherent
powers.
94. In this connection Madhu Limaye v. State of Maharashtra MANU/SC/0103/1977 : 1978CriLJ165 may be referred
to, as this Court has explained the principle, laid down in Amar Nath's case in somewhat modified and modulated form.
95. In Kurukshetra University and Anr. v. State of Haryana and Anr. MANU/SC/0102/1977 : 1977CriLJ1900 on which
Mr. Rajinder Sachhar has placed strong reliance, Chandrachud, J as he then was, while disapproving the quashing of a
First Information Report at premature stage has expressed his view as follows:
It surprises us in the extreme that the High Court thought that in the exercise of its inherent powers Under Section 482
of the CrPC, it could quash a First Information Report. The Police had not even commenced investigation into the
complaint filed by the Warden of the University and no proceeding at all was pending in any Court in pursuance of the
F.I.R. It ought to be realised that inherent powers do not confer an arbitrary jurisdiction on he High Court to act
according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest
of rare cases.
Page 110
96. The Supreme Court in State of Bihar and Anr. v. J.A.C. Saldanha and Ors. (supra) examined the question whether,
when the investigation was in progress, the High Court was justified in interfering with the investigation and prohibiting
or precluding further investigation in exercise of its extraordinary jurisdiction under Article 226 of the Constitution. On
the facts of that case, this Court set aside the order of the High Court quashing the order of the Magistrate in
postponing the consideration of the report submitted to him till the final report of completion of further investigation,
directed by the State Government was submitted to him and held that the High Court in exercise of its extraordinary
jurisdiction committed a grave error in giving the direction virtually amounting to mandamus to close the case before the
investigation was complete.
97. See also Municipal Corporation of Delhi v. Purshotam Dass Jhunjunwala and Ors. MANU/SC/0093/1982 :
1983CriLJ172 .
98. The classic exposition of the law is found in State of West Bengal and Ors. v. Swapan Kumar Guha and Ors. (cited
above). In this case, Chandrachud, CJ in his concurring separate judgment has stated that "if the FIR does not disclose
the commission of a cognizable offence, the Court would be justified in quashing the investigation on the basis of the
information as laid or received". Justice A.N. Sen who wrote the main judgment in that case with which Chandrachud,
CJ and Varadarajan, J. agreed has laid the legal proposition as follows:
...the legal position is well-settled. The legal position appears to be that if an offence is disclosed, the Court will not
normally interfere with an investigation into the case and will permit investigation into the offence alleged to be
completed; if, however, the materials do not disclose an offence, no investigation should normally be permitted....
Once an offence is disclosed, an investigation into the offence must necessarily follow in the interests of justice. If,
however, no offence is diclosed, an investigation cannot be permitted, as any investigation, in the absence of any offence
being disclosed, will result in unnecessary harassment to a party, whose liberty and property may be put to jeopardy for
nothing. The liberty and property of any individual are sacred and sacrosanct and the Court zealously guards them and
protects them. An investigation is carried on for the purpose of gathering necessary materials for establishing and
proving an offence which is disclosed. When an offence is disclosed, a proper investigation in the interests of justice
becomes necessary to collect materials for establishing the offence, and for bringing the offender to book. In the
absence of a proper investigation in a case where an offence is disclosed, the offender may succeed in escaping from the
consequences and the offender may go unpunished to the detriment of the cause of justice and the society at large.
Justice requires that a person who commits an offence has to be brought to book and must be punished for the same. If
the Court interferes with the proper investigation in a case where an offence has been disclosed, the offence will go
unpunished to the serious detriment of the welfare of the society and the cause of justice suffers. It is on the basis of this
principle that the Court normally does not interfere with the investigation of a case where an offence has been
disclosed....
Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular
case.... If on a consideration of the relevant materials, the Court is satisfied that an offence is disclosed, the Court will
normally not interfere with the investigation into the offence and will generally allow the investigation into the offence to
be completed for collecting materials for proving the offence.
99. But in the above case, this Court as we have pointed out earlier, quashed the proceedings on the ground that the
allegations made in the complaint did not constitute an offence within the ambit of the provisions of the Act under
which the respondents/accused therein were prosecuted.
100. Fazal Ali, J. reiterating his earlier view in Smt. Nagawwa v. Veer anna Shivalingappa Konjalgi and Ors.
MANU/SC/0173/1976 :[1976] SCR 123 wherein he has given certain category of cases in which an order of the
Magistrate issuing process against the accused can be quashed or set aside and further stating that the same principle laid
down in that decision would apply mutatis mutandis to a criminal complaint also, has explained the position of law in
Pratibha Rani v. Suraj Kumar and Anr. MANU/SC/0090/1985 : 1985CriLJ817 as follows:
It is well settled by a long course of decisions of this Court that for the purpose of exercising its power Under Section
482 Cr. P.C. to quash a FIR or a complaint the High Court would have to proceed entirely on the basis of the allegations

Page 111
made in the complaint or the documents accompanying the same per se. It has no jurisdiction to examine the
correctness or otherwise of the allegations.
101. Speaking for the Bench, Ranganath Mishra, J as he then was in Madhavrao Jiwaji Rao Scindia and Ors. v.
Sambhajirao Chandro-jirao Angre and Ors. MANU/SC/0261/1988 : 1988CriLJ853 has expounded the law as follows:
The legal position is well settled that when a prosecution at the initial stage is asked to be quahed, the test to be applied
by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the
court to take into consideration any special features which appear in a particular case to consider whether it is expedient
and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised
for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore,
no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into
consideration the special facts of a case also quash the proceedings even though it may be at a preliminary stage.
102. Venkatachaliah, J. in State of Bihar v. Murad Ali Khan and Ors. MANU/SC/0470/1988 : 1989CriLJ1005 has stated
that the jurisdiction Under Section 482 of the Code has to be exercised sparingly and with circumspection and has given
the working that in exercising that jurisdiction, the High Court should not embark upon an enquiry whether the
allegations in the complaint are likely to be established by evidence or not.
103. See also Talab Haji Hussain v. Madhukar Purshottam Mondekar and Anr. MANU/SC/0028/1958 : 1958CriLJ701 ;
L.U. Jadhav v. Shankarrao Abasaheb Pawar MANU/SC/0116/1983 : [1983]3SCR762 and J.P. Sharma v. Vinod Kumar
Jain and Ors. MANU/SC/0178/1986 : 1986CriLJ917 .
104. Mr. Parasaran, according to whom the allegations in the present case do not make out an offence, drew our
attention to a recent judgment of this Court in State of U.P. v. V.R.K. Srivastava and Anr. MANU/SC/0526/1989 :
1989CriLJ2301 to which one of us (S. Ratnavel Pandian, J.) was a party. In that case, it has been ruled that if the
allegations made in the FIR, taken on the face value and accepted in their entirety, do not constitute an offence, the
criminal proceedings instituted on the basis of such FIR should be quashed. The principle laid down in this case does
not depart from the proposition of law consistently propounded in a line of decisions of this Court and on the other
hand it reiterates the principle that the Court can exercise its inherent jurisdiction of quashing a criminal proceeding only
when the allegations made in the FIR, do not constitute an offence and that it depends upon the facts and circumstances
of each particular case.
105. 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 extra-ordinary 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 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.
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 F.I.R. 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.

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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.
106. 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 F.I.R. 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.
107. It may be true, as repeatedly pointed out by Mr. Parasaran, that in a given situation, false and vexatious charges of
corruption and venality may be maliciously attributed against any person holding a high office and enjoying a respectable
status thereby sullying his character, injuring his reputation and exposing him to social ridicule with a view to spite him
on account of some personal rancour, predilections and past prejudices of the complaint. In such a piquant situation, the
question is what would be the remedy that would redress the grievance of the verily affected party? The answer would be
that the person who dishonestly makes such false allegations is liable to be proceeded against under the relevant
provisions of the Indian Penal Code-namely Under Sections 182 or 211 or 500 besides becoming liable to be sued for
damages.
108. Reverting to the present case, the allegations made in the complaint, in our considered opinion, do clearly constitute
a cognizable offence justifying the registration of a case and an investigation thereon and this case does not fall under
any one of the categories of cases formulated above calling for the exercise of extraordinary or inherent powers of the
High Court to quash the F.I.R. itself.
109. It was then urged by Mr. Parasaran with a considerable force and insistence that the entire proceedings against Ch.
Bhajan Lal on account of the acrimonious political rivalry is vitiated either on being tainted with a mala fides or due to
lack of bona fide and, therefore, the judgment impugned quashing the entire proceedings should not be interfered with.
Much reliance was placed in support of the above submission on three decisions, namely S. Pratap Singh v. The State of
Punjab MANU/SC/0272/1963 : (1966)ILLJ458SC ; State of Haryana v. Rajindra Sareen MANU/SC/0687/1971 :
(1972)ILLJ205SC and Express Newspapers Pvt. Ltd. and Ors. v. Union of India and Ors. [1985] 3 SCR 382.
110. We went through the entire materials very scrupulously but we are not persuaded to hold that the allegations of
mala fides or lack of bona fide are substantiated and hence the decisions cited in this behalf cannot be availed of. It may
not be out of place to mention here that when the third respondent, Ch. Devi Lal in the SLP was given up from the
array of parties by the appellant, no objection was raised on behalf of Ch. Bhajan Lal. In fact, the learned Judge of the
High Court before whom a similar contention was raised has rightly negatived that contention and held that the plea of
mala fide as against Ch. Devi Lal is not available. Hence there is no merit in this contention.
111. No doubt, there was no love lost between Ch. Bhajan Lal and Dharam Pal. Based on this strained relationship, it
has been then emphatically urged by Mr. K. Parasaran that the entire allegations made in the complaint due to political
vendetta are not only scurrilous and scandalous but also tainted with mala fides, vitiating the entire proceedings. As it
has been repeatedly pointed out earlier the entire matter is only at a premature stage and the investigation is not yet
proceeded with except some preliminary effort taken on the date of the registration of the case, that is on 21.11.1987.
The evidence has to be gathered after a thorough investigation and placed before the Court on the basis of which alone
the Court can come to a conclusion one way or the other on the plea of mala fides. If the allegations are bereft of truth
and made maliciously, we are sure, the investigation will say so. At this stage, when there are only allegations and
recriminations but no evidence, this Court cannot anticipate the result of the investigation and render a finding on the
question of mala fides on the materials at present available. therefore, we are unable to see any force in the contention
Page 113
that the complaint should be thrown overboard on the mere unsubstantiated plea of mala fides. Even assuming that
Dharam Pal has laid the complaint only on account of his personal animosity, that, by itself, will not be a ground to
discard the complaint containing serious allegations which have to be tested and weighed after the evidence is collected.
In this connection, the following view expressed by Bhagwati, CJ in Sheonandan Paswan v. State of Bihar and Ors.
MANU/SC/0206/1986 : 1987CriLJ793 may be referred to.
It is a well established proposition of law that a criminal prosecution, if otherwise, justifiable and based upon adequate
evidence does not become vitiated on account of mala fides or political vendetta of the first informant or the
complainant.
Beyond the above, we do not wish to add anything more.
112. It was again contended that mala fides are writ large on the extra-ordinary interest evinced by the police officers and
the hasty direction given by the S.P. Needless to say that the question of mala fide exercise of power will assume
significance only if an authority acts for unauthorised purpose. The proper test to be applied in such a case is as to what
is the dominant purpose for which the power is exercised. The principle of dominant purpose is explained in the
following decisions:
113. The King v. Minister of Health [1929] 1 K.B. 619; Rex v. Brighton Corporation ex-parte Shoosmith 96 L.T. 762;
Earl Fitzwilliam's Wentworth Estate Co. Ltd. v. Minister of Town and Country Planning [1951] 2 K.B. 284 and P.V.
Jagannath Rao and Ors. v. State of Orissa and Ors. MANU/SC/0013/1968 : [1968]3SCR789 .
114. Applying the test, laid down in the above decisions to the present case, we are of the opinion that the dominant
purpose of registration of the case and the intended follow up action are only to investigate the allegations and present a
case before the Court, if Sufficient evidence in support of those allegations are collected but not to make a character
assassination of Ch. Bhajan Lal and their relatives. therefore, we are not able to see any substance in this submission.
115. We have, so far, made a detailed and searching analysis on the legal issues with regard to the statutory duty of an
Officer Incharge of a police station in registering the First Information Report and commencing the investigation
thereon as well the principles relating to the exercise of extra-ordinary and inherent powers of the High Court in
quashing either the FIR or the entire criminal proceedings as the case may be; and bearing in mind the enunciation of
law, we have given our anxious consideration and careful thought to all the contentions made by all the learned Counsel
with considerable force and emphasis. The resultant and inescapable logical conclusion which we unreservedly arrive at
is that the order of the High Court quashing the First Information Report, viewed from any angle, cannot be sustained
both on the question of law and facts. Consequently, we set aside that part of the judgment of the High Court quashing
the First Information Report.
116. Lastly, a fervent, but inexorable plea was made requesting this Court to take judicial notice of the fact that the
Justice Jaswant Singh Commission, appointed to enquire into the allegations of disproportionate assets of Ch. Bhajan Lal
through corrupt means found that these allegations were baseless. Both Ch. Devi Lal and Dharam Pal in their affidavits
filed before the High Court have stated that the allegations in the FIR are quite different from those which was the
subject matter of enquiry before the Justice Jaswant Commission. Be that as it may, we are not inclined to give any
finding one way or other merely on the report of the Justice Jaswant Singh Commission by taking judicial notice of the
same.
117. During the course of the hearing of this appeal as we have entertained a doubt as to the validity of the statutory
power of the Inspector of Police, the third appellant herein who is not a designated officer to investigate this case
registered Under Section 5(2) of the Act (presumably Section 5(1)(e) read with Section 5(2) and Under Sections 161 and
165 IPC in the teeth of the mandatory provisions of Section 5A and in the light of the observations of this Court made
in H.N. Rishbud and Inder Singh v. The State of Delhi MANU/SC/0049/1954 : 1955CriLJ526 and The State of
Madhya Pradesh v. Mubarak Ali MANU/SC/0038/1959 :[1959] 2 SCR 201, all the learned Counsel addressed their
arguments on this point at the instance of this Court. Though initially, it was submitted on behalf of the State (the first
appellant herein) that the order of the S.P. dated 21.11.1987 directing the Inspector to investigate the case would fall
within the purview of the provisos to Section 5A, subsequently two Government orders issued by the Government of
Haryana-one dated 26.7.1975 authorising all the Inspectors of Police under the administrative control of the Inspector
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General of Police, Haryana, to investigate offences Under Section 5 of the Act and Anr. dated 19th April 1988
authorising all the Inspectors of Police posted in the Chief Minister's Flying Squad, Haryana, Chandigarh for the purpose
of the first proviso to Section 5A(1) of the Act. It is pertinent to note that both the government orders were issued in
exercise of the powers, conferred by the first provisos to Sub-section (1) of Section 5(A) of the Act.
118. Section 5A(1) of the Act with the relevant provisos reads thus:
Notwithstanding anything contained in the CrPC, 1898 (5 of 1898, no police officer below the rank,-
(a) in the case of the Delhi Special Police Establishment, of an Inspector of Police;
(b) in the presidency-towns of Calcutta and Madras, of an Assistant Commissioner of Police;
(c) in the presidency town of Bombay of a Superintendent of Police; and
(d) elsewhere, of a Deputy Superintendent of Police, shall investigate any offence punishable Under Section 161, Section
165 or Section 165A of the Indian Penal Code (45 of 1860) or Under Section 5 of this Act without the order of a
Presidency Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefore without a
warrant:
Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in
this behalf by general or special order, he may also investigate any such offence without the order of a Presidency
Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefore without a warrant:
Provided further that an offence referred to in Clause (e) of Sub-section (1) of Section 5 shall not be investigated
without the order of a police officer not below the rank of a Superintendent of Police.
119. Section 5A of the Act as it originally stood, was inserted by the (Second Amendment) Act 59 of 1952 based on the
recommendations of the Committee of Members of Parliament under the chairmanship of Dr. Bakshi Tek Chand. The
said section as it stands now was substituted by Act 40 of 1964, the main object of which is to protect the public servant
against harassment and victimisation. (See The State of M.P. v. Mubarak Ali (albeit). In A.C. Sharma v. Delhi
Administration MANU/SC/0073/1973 : 1973CriLJ902 , Dua, J said that the scheme of this provision is for effectively
achieving the object of successful investigation into the serious offences mentioned in Section 5 of the Act without
unreasonably exposing the public servant concerned to frivolous and vexatious proceedings. A Constitutional Bench of
this Court in A.R. Antulay v. R.S. Nayak MANU/SC/0082/1984 : 1984CriLJ647 has observed that "Section 5A is a
safeguard against investigation .of offences by public servants, by petty or lower rank police officer."
120. According to Section 5A, notwithstanding anything contained in the Code, no police officer below the rank
specified in Clauses (a) to (d) of Section 5A(1), shall investigate any offence punishable Under Sections 161, 165 or 165A
of the IPC or Under Section 5 of the Act without the order of a Presidency Magistrate or a Magistrate of the first class
as the case may be or make arrest therefore without a warrant. There are two provisos to that section. As per the first
proviso, if a police officer not below the rank of an Inspector of Police is authorised by the State Government, either by
general or special order, he may investigate any such offence without the order of a Magistrate or make arrest therefore
without a warrant. According to the second proviso, an offence referred to in Clause (e) of Sub-section (1) of Section 5
shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police.
121. It means that a police officer not below the rank of an Inspector of Police authorised by the State Government in
terms of the first provisos can take up the investigation of an offence referred to in Clause (e) of Section 5(1) only on a
separate and independent order of a police officer not below the rank of a Superintendent of Police. To say in other
words, a strict compliance of the second proviso is an additional legal requirement to that of the first proviso for
conferring a valid authority on a police officer not below the rank of an Inspector of Police to investigate an offence
falling under Clause (e) of Section 5(1) of the Act. This is clearly spelt out from the expression "further provided"
occurring in the second proviso.

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122. A conjoint reading of the main provision, 5A(1) and the two provisos thereto, shows that the investigation by the
designated police officers is the rule and the investigation by an officer of a lower rank is an exception.
123. It has been ruled by this Court in several decisions that Section 5A of the Act is mandatory and not directory and
the investigation conducted in violation thereof bears the stamp of illegality but that illegality committed in the course of
an investigation does not affect the competence and the jurisdiction of the Court for trial and where the cognizance of
the case has in fact been taken and the case is proceeded to termination the validity of the proceedings with the
preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby. See H.N.
Rishbud and Inder Singh v. The State of Delhi (supra); Major E.G. Barsay v. The State of Bombay
MANU/SC/0123/1961 : 1961CriLJ828 ; Munna Lal v. State of Uttar Pradesh MANU/SC/0067/1963 : 1964CriLJ11 ;
S.N. Bose v. State of Bihar MANU/SC/0063/1968 : 1968CriLJ1484a ; Muni Lal v. Delhi Administration
MANU/SC/0147/1971 : 1971CriLJ1153 and Khandu Sonu Dhobi and Anr. v. State of Maharashtra
MANU/SC/0155/1972 : 1972CriLJ593 . However, in Rishbud's case and Muni Lal's case it has been ruled that if any
breach of the said mandatory provision relating to investigation is brought to the notice of the Court at an early stage of
the trial, the Court will have to consider the nature and extent of the violation and pass appropriate orders as may be
called for to rectify the illegality and cure the defects in the investigation.
124. Coming to the facts of the present case under consideration, the investigation did not proceed and could not be
proceeded with, since the High Court by an interlocutory order restrained the investigation even at the initial stage, i.e.
on the date when Rule Nisi was issued in the Writ Petition. therefore, it is the appropriate stage for examination of the
question as to whether the necessary requirements contemplated Under Section 5A(1) in permitting the Inspector of
Police, are strictly complied with or not.
125. For the proper understanding of the reasoning which we would like to give touching the question of the validity of
the authority of the third appellant, we would like to reproduce the Government order dated 26th July 1975 which reads
as follows:
HARYANA GOVERNMENT
HOME DEPARTMENT
ORDER
No. 4816-3H-75/22965 The 26th July 1975
Conferred by the first proviso to Sub-section (1) of Section 5A of the Prevention of Corruption Act, 1947, the
Governor of Haryana hereby authorises all the Inspectors of Police under the administrative control of the Inspector
General of Police, Haryana to investigate offences Under Section 5 of the said Act.
S.D. Bhandari
Secretary to Government, Haryana
Home Department.
126. The subsequent Government Order dated 19.4.1988 is on the same line of the above Government Order.
127. On the strength of the above Government Order of 1975, it has been rightly contended that the third appellant
(Inspector of Police), though not a designated officer has been legally authorised by the State Government in exercise of
its powers under the first proviso of Section 5A(1) to investigate the offences falling Under Section 5 of the Act, namely,
the offences enumerated in Clauses (a) to (e) of Section 5(1) of the Act.
128. Now what remains for consideration is whether there is any valid order of the S.P. permitting the third appellant to
investigate the offence falling under Clause (e) of Sub-section (1) of Section 5. As we have already mentioned in the
earlier part of this judgment, the S.P. (the second appellant) has given the one word direction on 21.11.1987 'investigate'.
The question is whether the one word direction 'investigate' would amount to an 'Order' within the meaning of second
proviso of Section 5A(1).

Page 116
129. In H.N. Rishbud's case (supra) at page 1165 while examining the order of a Magistrate contemplated Under Section
5A(1), it has been observed:
When a Magistrate is approached for granting such permission he is expected to satisfy himself that there are good and
sufficient reasons for authorising an officer of a lower rank to conduct the investigation. The granting of such
permission is not to be treated by a Magistrate as a mere matter of routine but it is an exercise of his judicial discretion
having regard to the policy underlying it. In our opinion, therefore, when such a breach is brought to the notice of the
Court at an early stage of the trial the Court will have to consider the nature and extent of the violation and pass
appropriate orders for such re-investigation as may be called for, wholly or partly....
130. The above dictum has been approved in Mubarak Ali's case the facts of which disclose that the District Magistrate
before whom an application was submitted by the Sub-Inspector seeking permission Under Section 5A passed the order
reading "permission granted". Subba Rao, J. as he then was while speaking for the Bench disapproved such casual order
and expressed that the Magistrate did not realise the significance of this order giving permission but only mechanically
issued the order and stated thus:
...in a case where an officer rather than the designated officer, seeks to make an investigation, he should get the order of
a Magistrate empowering him to do so before he proceeds to investigate and it is desirable that the order giving the
permission should ordinarily, on the face of it, disclose the reasons for giving the permission.
131. Hegde, J in S.N. Bose's case following the maxim in Mubarak Ali's case has expressed his opinion in the following
words:
It is surprising that even after this Court pointed out the significance of Section 5A in several decisions there are still
some Magistrates and police officers who continue to act in a casual manner. It is obvious that they are ignorant of the
decisions of this Court.
132. The conspectus of the above decisions clearly that the granting of permission Under Section 5A authorising an
officer of lower rank to conduct the investigation is not to be treated by a Magistrate as a mere matter of routine, but it
is an exercise of his judicial discretion having regard to the policy underlying and the order giving the permission should,
on the face of it, disclose the reasons for granting such permission. It is, therefore, clear in the light of the above
principle of law that the Superintendent of Police or any police officer of above rank while granting permission to a non-
designated police officer in exercise of his power under the second proviso to Section 5A(1), should satisfy himself that
there are good and sufficient reasons to entrust the investigation with such police officer of a lower rank and record his
reasons for doing so; because the very object of the legislature in enacting Section 5 A is to see that the investigation of
offences punishable Under Section 161, 165 or 165A of Indian Penal Code as well as those Under Section 5 of the Act
should be done ordinarily by the officers designated in Clauses (a) to (d) of Section 5A(1). The exception should be for
adequate reasons which should be disclosed on the face of the order. In this connection, it is worthy to note that the
strict compliance with Section 5A(1) becomes absolutely necessary, because Section 5A(1) expressly prohibits police
officers, below certain ranks, from investigating into offences Under Sections 161, 165 and 165A, IPC and Under
Section 5 of the Act without orders of Magistrates specified therein or without authorisation of the State Government in
this behalf and from effecting arrests for those offences without a warrant. See also AC. Sharma v. Delhi Administration
(supra).
133. In the present case, there is absolutely no reason, given by the S.P. in directing the SHO to investigate and as such
the order of the S.P. is directly in violation of the dictum laid down by this Court in several decisions which we have
referred to above. Resultantly, we hold that the third appellant, SHO is not clothed with the requisite legal authority
within the meaning of the second proviso of Section 5A(1) of the Act to investigate the offence under Clause (e) of
Section 5(1) of the Act.
134. There is also one more legal hurdle which the prosecution has to overcome in entrusting this investigation with the
SHO. As has been repeatedly mentioned the case under consideration is not only registered Under Section 5(2) but also
Under Section 161 and 165 IPC. The Government Order authorises the Inspector General of Police of Haryana state to
investigate only the offences falling Under Section 5 of the Act. therefore, the SHO who has taken up the investigation
of the offences inclusive of those Under Section 161 and 165 IPC is not at all clothed with any authority to investigate
Page 117
these two offences, registered under the IPC, apart from the offence Under Section 5(2) of the Act. When Mr. Sachhar
was confronted with this legal issue, he tried to extricate himself from this situation saying that the prosecution would
approach the Magistrate of the first class for obtaining an order Under Section 5A(1) authorising SHO to investigate the
offences under the provisions of the IPC. However, as the question relating to the legal authority of the SHO is raised
even at this initial stage, we feel that it would be proper and also desirable that the investigation, if at 'all to be proceeded
with in the opinion of the State Government, should proceed only on the basis of a valid order in strict compliance with
the mandatory provision of Section 5A(1).
135. From the above discussion, we hold that (1) as the salutary legal requirement of disclosing the reasons for according
the permission is not complied with; (2) as the prosecution is not satisfactorily explaining the circumstances which
impelled the S.P. to pass the order directing the SHO to investigate the case; (3) as the said direction manifestly seems to
have been granted mechanically and in a very casual manner, regardless of the principles of law enunciated by this Court,
probably due to blissful ignorance of the legal mandate and (4) as, above all, the SHO has got neither any order from the
Magistrate to investigate the offences Under Sections 161 and 165 IPC nor any order from the S.P. for investigation of
the offence Under Section 5(1)(e) of the Prevention of Corruption Act in the manner known to law, we have no other
option, save to quash that order of direction, reading "investigate" which direction suffers from legal infirmity and also
the investigation, if any, so far carried out. Nevertheless, our order of quashing the direction of the S.P. and the
investigation thereupon will not in any way deter the first appellant, the State of Haryana to pursue the matter and direct
an investigation afresh in pursuance of the F.I.R., the quashing of which we have set aside, if the State so desires,
through a competent police officer, clothed with the legal authority in strict compliance with Section 5A(1) of the Act.
136. The learned Judges of the High Court before parting with their conclusions not being "able to resist temptation" of
making an observation with a textual passage which is more or less suggestive of an advice have expressed as follows:
Besides what has been said and observed above, before parting with this case, we have not been able to resist the
temptation of saying that every politician in Haryana may be the Chief Minister or otherwise, should not while holding
office act on the maxim, 'Everything is fair in love and war' but should be sanguine and careful to meet out to his
predecessor, a treatment in the words of Porus, uttered while in chains, on being brought before Alexander the Great, 'a
treatment which a king should meet out to another king' because it is often said 'as you sow, so shall you reap'.
137. Mr. Rajinder Sachhar and Mr. R.K. Garg submitted with strong intensity of conviction that the above observation
of the learned Judges should not be countenanced because if such observations, especially in the context of this case
receive judicial recognition, it will lead only to the catastrophe of our democratic system to the detriment of the welfare
of the country and if such observations are accepted then every successor Government should bury its head like an
Ostrich thereby freely allowing the malfeasance and misfeasance of the former Government to go un-noticed, un-
rectified and the offenders unpunished. According to them there is absolutely no material for holding that there was any
campaign of vilification for political gain based on personal animus by the successor Government as against the
outgoing Government, particularly when the criminal proceedings are initiated by an individual.
138. To buttress their submission, they relied on the following decisions dealing with similar contentions attacking the
institution of criminal proceedings characterising them as the outcome of political vendetta. Those observations being
P.V. Jagannath Rao and Ors. v. State of Orissa and Ors. MANU/SC/0013/1968 : [1968]3SCR789 ; Krishna Ballabh
Sahay and Ors. v. Commissioner of Enquiry and Ors. MANU/SC/0378/1968 : 1969CriLJ520 ; Sheonandan Paswan v.
State of Bihar and Ors. MANU/SC/0105/1982 : 1983CriLJ348 ; Sheonandan Pawan v. State of Bihar and Ors.
MANU/SC/0206/1986 : 1987CriLJ793 and A.R. Antulay v. R.S. Nayak and Anr. MANU/SC/0002/1988 :
1988CriLJ1661 .
139. It would be appropriate to refer to the observation made by this Court in two of the above decisions.
140. In Krishna Ballabh Sahay's case at page 393, Hidayatullah, C.J. speaking for the Constitutional Bench has pointed
out:
It hardly needs any authority to state that the inquiry will be ordered not by the Minister against himself but by some one
else. When a Ministry goes out of office, its successor may consider any glaring charges and may, if justified, order an

Page 118
inquiry. Otherwise, each Ministry will become a law unto itself and the corrupt conduct of its Ministers will remain
beyond scrutiny.
141. In A.R. Antulay's case at page 673, Sabyasachi Mukharji, J (as he then was) speaking for himself and two other
learned Judges expressed his opinion on a similar issue in the following words:
...we must remained ourselves that purity of public life is one of the cardinal principles which must be upheld as a matter
of public policy. Allegations of legal infractions and criminal infractions must be investigated in accordance with law and
procedure established under the Constitution. Even if he has been wronged, if he is allowed to be left in doubt that
would cause more serious damage to the appellant. Public confidence in public administration should not be eroded any
further. One wrong cannot be remedied by another wrong.
142. We feel that the following observation made by Krishna Iyer, J in State of Punjab v. Gurdial Singh
MANU/SC/0433/1979 : [1980]1SCR1071 may be recapitulated in this connection, that being:
If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal.
143. In the light of the above decisions of this Court, we feel that the said observations made in the impugned judgment
are unwarranted and the historical anecdote is out of context and inappropriate. We are afraid if such a view is to be
judicially accepted and approved, then it will be tantamount to laying down as alarming proposition that an incoming
Government under all circumstances, should put its seal of approval to all the commissions and omissions of the
outgoing Government ignoring even glaring lapses and serious misdeeds and the deleterious and destructive
consequences that may follow therefrom. Hence we are constrained to express our disapproval since the text, tenor and
tone of the above observations leave us with the feeling that such misplaced sympathy indicated therein appears to have
considerably weighed with the learned Judges in taking the extreme step in quashing the First Information Report. We
do not like to make any more comment except saying that as we have pointed out in our exordial note, in our
democratic polity where the 'Rule of Law' regions no one-however highly placed he may be-can claim immunity, much-
less absolute immunity from the Law, but he is always under the Law.
144. We set aside the judgment of the High Court quashing the First Information Report as not being legally and
factually sustainable in law for the reasons aforementioned; but, however, we quash the commencement as well as the
entire investigation, if any, so far done for the reasons given by us in the instant judgment on the ground that the third
appellant (SHO) is not clothed with valid legal authority to take up the investigation and proceed with the same within
the meaning of Section 5A(1) of the Prevention of Corruption Act as indicated in this judgment. Further we set aside the
order of the High Court awarding costs with a direction that the said costs is payable to the first respondent (Ch. Bhajan
Lal) by the second respondent (Dharam Pal).
145. In the result, the appeal is disposed of accordingly but at the same time giving liberty to the State Government to
direct an investigation afresh, if it so desires, through a competent Police Officer empowered with valid legal authority in
strict compliance with Section 5 A(1) of the Act as indicated supra. No order as to costs.

Page 119
MANU/SC/0677/2003
Equivalent Citation: 2004ACJ1246, 2004(1)ACR200(SC), AIR2003SC4567, 2004(1)CGLJ47, 2003CriLJ4548,

JT2003(Suppl2)SC282, 2003(2)OLR611, 2003(7)SCALE213, (2003)7SCC749, [2003]Supp3SCR426, 2004(1)UJ281
Appellants: Smt. Shakila Abdul Gafar Khan

Vs.
Respondent: Vasant Raghunath Dhoble and Anr.
Hon'ble Judges:
Doraiswamy Raju and Dr. Arijit Pasayat, JJ.
JUDGMENT
Arijit Pasayat, J.
1. "If you once forfeit the confidence of our fellow citizens you can never regain their respect and esteem. It is true that
you can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all
the time". Said Abraham Lincoln. This Court in Raghubir Singh v. State of Haryana MANU/SC/0186/1974 :
1974CriLJ1062 , took note of these immortal observations while deprecating custodial torture by the police.
2. Custodial violence, torture and abuse of police power are not peculiar to this country, but it is widespread. It has been
the concern of international community because the problem is universal and the challenge is almost global. The
Universal Declaration of Human Rights in 1948 which marked the emergence of a worldwide trend of protection and
guarantee of certain basic human rights stipulates in Article 5 that "No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment". Despite this pious declaration, the crime continues unabated, though
every civilized nation shows its concern and makes efforts for its eradication.
3. If it is assuming alarming proportions, now a days, all around it is merely on account of the devilish devices adopted
by those at the helm of affairs who proclaim from roof tops to be the defenders of democracy and protectors of
peoples' rights and yet do not hesitate to condescend behind the screen to lat loose their men in uniform to settle
personal scores, feigning ignorance of what happens and pretending to be peace loving puritans and saviors of citizens'
rights.
4. Article 21 which is one of the luminary provisions in the Constitution of India, 1950 (in short the 'Constitution') and
is a part of the scheme for fundamental rights occupies a place of pride in the Constitution. The Article mandates that
no person shall be deprived of his life and personal liberty except according to the procedure established by law. This
sacred and cherished right i.e. personal liberty has an important role to play in the life of every citizen. Life or personal
liberty includes a right to live with human dignity. There is an inbuilt guarantee against torture or assault by the State or
its functionaries. Chapter V of the Code of Criminal Procedure, 1973 (for short the 'Code') deals with the powers of
arrest of persons and the safeguards required to be followed by the police to protect the interest of the arrested person.
Articles 20(3) and 22 of the Constitution further manifest the constitutional protection extended to every citizen and the
guarantees held out for making life meaningful and not a mere animal existence.It is therefore difficult to comprehend
how torture and custodial violence can be permitted to defy the rights flowing from the Constitution. The dehumanizing
torture, assault and death in custody which have assumed alarming proportions raise serious questions about the
credibility of rule of law and administration of criminal justice system. The community rightly gets disturbed. The cry for
justice becomes, louder and warrants immediate remedial measures. This Court has in a large number of cases expressed

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concern at the atrocities perpetuated by the protectors of law. Justice. Brandies's observation which have become classic
are in following immortal words:
"Government as the omnipotent and omnipresent teacher teaches the whole people by its example, if the Government
becomes a law breaker, it breeds contempt for law, it invites every man to become a law into himself", (in (1928) 277
U.S. 433, quoted in (1961) 367 U.S. 643.
5. The diabolic recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives
and liberty are under a new and unwarranted peril because guardians of law destroy the human rights by custodial
violence and torture and invariably resulting in death. The vulnerability of human rights assumes a traumatic torture
when functionaries of the State whose paramount duty is to protect the citizens and not to commit gruesome offences
against them, in reality perpetrate them. The concern which was shown in Raghubir Singh's case (supra) more than two
decades back seems to have fallen to leaf ears and the situation does not seem to be showing any noticeable change. The
anguish expressed in Gauri Shankar Sharma v. State of U.P. MANU/SC/0132/1990 : [1990]1SCR29 , Bhagwan Singh
and Anr. v. State of Punjab MANU/SC/0322/1992 : 1992CriLJ3144 , Smt. Nilabati Behera @ Lalita Behera v. State of
Orissa and Ors., MANU/SC/0307/1993 : 1993CriLJ2899 , Pratul Kumar Sinha v. State of Bihar and Anr.
MANU/SC/1144/1994, Kewal Pati (Smt.) v. State of U.P. and Ors. MANU/SC/0693/1995 : 1995CriLJ2920 . Inder
Singh v. State of Punjab and Ors. MANU/SC/0380/1995 : 1995CriLJ3235 , State of M.P. v. Shyamsunder Trivedi and
Ors. MANU/SC/0722/1995 : (1995)4SCC262 and by now celebrated decision in Shri D.K. Basu v. State of West
Bengal MANU/SC/0157/1997 : 1997CriLJ743 seems to have caused not even any softening attitude to the in human
approach in dealing with persons in custody.
6. Rarely in cases of police torture of custodial death, direct ocular evidence of the complicity of the police personnel
alone who can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties
of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even
pervert the truth to save their colleagues - and the present case is an apt illustration - as to how one after the other police
witnesses feigned ignorance about the whole matter.
7. The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt by the
prosecution, at times even when the prosecuting agencies are themselves fixed in the dock, ignoring the ground realities,
the fact-situation and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of
justice and makes the justice delivery system suspect and vulnerable. In the ultimate analysis the society suffers and a
criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this
type of an unrealistic approach at times of the courts as well because it reinforces the belief in the mind of the police that
no harm would come to them if one prisoner dies in the lock-up because there would hardly be any evidence available to
the prosecution to directly implicate them with the torture. The courts must not lose sight of the fact that death in police
custody is perhaps one of the worst kind of crimes in a civilized society, governed by the rule of law and poses a serious
threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens recognized by the Indian
Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainess/undertrial prisoners
or suspects tarnishes the image of any civilised nation and encourages the men in 'Khaki' to consider themselves to be
above the law and sometimes even to become law upto themselves. Unless stern measures are taken to check the malady
of the very fence eating the crops, the foundations of the criminal justice delivery system would be shaken and the
civilization itself would risk the consequence of heading, towards total decay resulting in anarchy and authoritarianism
reminiscent of barbarism. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity
which they deserve, otherwise the common man may tend to gradually lose faith in the efficacy of the system of judiciary
itself, which if it happens will be a sad day, for any one to reckon with.
8. Though Sections 330 and 331 of the Indian Penal Code, 1860 (for short the 'IPC') make punishable those persons
who cause hurt for the purpose of extorting the confession by making the offences punishable with sentence up to 10
years of imprisonment, but the convictions, as experience shows from track record have been very few compared to the
considerable increase of such onslaught because the atrocities within the precincts of the police station are often left
without much traces or any ocular or other direct evidence to prove as to who the offenders are. Disturbed by this
situation the Law Commission in its 113th Report recommended amendments to the Indian Evidence Act, 1872 (in
short the "Evidence Act') so as to provide that in the prosecution of a police officer for an alleged offence of having
caused bodily injuries to a person while in police custody, if there is evidence that the injury was caused during the
period when the person was in the police custody, the court may presume that the injury was caused by the police officer
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having the custody of that person during that period unless the police officer proves to the contrary. The onus to prove
the contrary must be discharged by the police official concerned. Keeping in view the dehumanizing aspect of the crime,
the flagrant violation of the fundamental rights of the victim of the crime and the growing rise in the crimes of this type,
where only a few come to light and others don't, the Government and the legislature must give serious thought to the
recommendation of the Law Commission and bring about appropriate changes in the law not only to curb the custodial
crime but also to see that the custodial crime does not go unpunished. The courts are also required to have a change in
their outlook approach, appreciation and attitude, particularly in cases involving custodial crimes and they should exhibit
more sensitivity and adopt a realistic rather than a narrow technical approach, while dealing with the cases of custodial
crime so that as far as possible within their powers, the truth is found and guilty should not escape so that the victim of
the crime has the satisfaction that ultimately the majesty of law has prevailed.
9. But at the same time there seems to be disturbing trend of increase in cases where false accusations of custodial
torture are made, trying to take advantage of the serious concern shown and the stern attitude reflected by the courts
while dealing with custodial violence. It needs to be carefully examined whether the allegations of custodial violence are
genuine or are sham attempts to gain undeserved benefit masquerading as victims of custodial violence. The case in
hand is unique case in the sense that complainant filed a complaint alleging custodial torture while the accused alleged
false implication because of oblique motives.
10. Respondent Vasant raghunath Dhoble (hereinafter referred to as the 'accused') faced trial on the basis of a private
complaint filed by the appellant Shakila. The Additional Sessions Judge, Greater Bombay, found the accused guilty of
offence punishable under Section 304 Part II IPC and sentenced him to undergo rigorous imprisonment for 7 years and
to pay a fine of Rs. 1,00,000/-. In default of payment of fine he was to undergo 21 months imprisonment. In appeal, the
Bombay High Court found that the prosecution has failed to established the accusations and directed acquittal. The
complainant has filed this appeal.
11. Accusation of the complainant sans unnecessary details are as follows:
On 14.10.1983 Abdul Gafar (hereinafter referred to as the 'deceased'), the husband of the complainant was arrested in
respect of CR.No. 559/83 at D.N. Nagar Police Station on the allegation that he had caused grievous hurt to one Vishnu
Son Bhuwas. The deceased informed his wife (complainant) that he was required to go to the police station in
connection with a case, as he had scuffle with some persons. On 15.10.1983, the complainant having found that
deceased had not returned home in the night of 14.10.1983 came out of there house to search for her husband. Around
8.30 a.m., she noticed that police van on the main road vis. Link Road was being parked on the road side. The accused
who was then attached to the D.N. Police Station came out of the van along with some police constables and they were
dragging the deceased. The complainant noticed that the condition of her husband was not very sound, and he was not
even able to stand up. The complainant was sure that he had been assaulted in the previous night, apparently in police
custody. The accused was carrying a hockey stick in his hands and continued to beat the deceased in the presence of
complainant and other persons. The other constables were holding the hands of the deceased and tried to make the
deceased stand. The accused continued to give blows by the hockey stick. The constables pulled the hair of the deceased
while he was being beaten by the accused. Having been informed about the assaults. Smt. Khairunissa, mother of the
deceased (PW-2) and Shamsunissa, sister of the deceased (PW-5) came to the spot. They had also witnesses the assaults
on the deceased. When the complainant (PW-1), PW-2 and PW-5 tried to intervene, they were also threatened. The
assaults continued for a very long time for more than an hour and when one of hockey sticks which was being used by
the accused broke, another hockey stick was brought out from the van and assaults continued. In the evening, PWs1 and
2 made attempts to move the police authorities at D.N. Nagar Police Station and met one Assistant Commissioner of
Police (Mr. Irani) and senior Police Inspector (Mr. Chaglani) and requested them to render medical assistance to the
deceased. But there was no cooperation and although the deceased was in a bad physical condition, he was taken to the
hospital on 16.10.1983 around 11.00 a.m. The deceased was produced before the Remand Magistrate and was released
on bail. After his release the deceased was taken to the hospital and was admitted in Cooper Hospital at about 4.00 p.m.
and as his condition worsened he was transferred to K.E.M. Hospital on 17.10.1983. Subsequently, he expired. PWs. 1, 2
and 5 made complainant to the police officials against the accused holding him responsible for the death due to the
assaults during the period from 14.10.1983 to 16.10.1983. Their statements were recorded, but no action was taken.
Though the complainant made the representations to various authorities including the Commissioner of Police on
20.10.1983 that also did not yield and result. The complainant (PW-1) claims to have been made representations to the
Prime Minister and the President of the country. As a last resort, a private complainant was made before the

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Metropolitan Magistrate, 10th Court, Andheri on 12.12.1984. The case was committed for sessions trial by an order
dated 5.1.1987.
12. Nine witnesses were examined to prove the prosecution version. The accused pleaded innocence and false
implication. He produced three witnesses to substantiate his plea of innocence. Three witnesses were examined as court
witnesses. They were the police officials attached to the D.N. Nagar Police Station. On consideration of the materials on
record, as noted above, the trial Court found the accused guilty but the judgment of conviction and sentence was set
aside by the High Court, which found certain circumstances to be of great importance corroding the credibility of
complainant's version. Essentially the circumstances are as follows:
13. The complainant was lodged after more than one year of the alleged date of occurrence without any plausible
explanation for the delay. The version given by PWs 1, 2 and 5 regarding the merciless assaults by the accused were
incredible inasmuch as the doctor who conducted post mortam found 16 injuries on his body and had opined the cause
of death to be acute renal failure. Certain documents were not supplied to the accused and thus caused great prejudice to
the accused and use of those materials by the trial Court to find the accused guilty did not meet the requirements of law.
The evidence of PWs 1, 2 and 5 when read together improbabilises the stand that they had seen the beatings alleged to
have been given by the accused to the deceased. In the first report there was no mention about the assaults on
14.10.1983. The doctor who had examined the deceased had noted the medical history of the accused, but the name of
the accused was not specifically indicated though the accused and the deceased were known to each other intimately. In
the report as alleged, name of the accused did not figure. The claim of oral dying declaration to have been made by the
deceased was not indicated in the first report. The original post mortem report having not been placed on record, the
evidence of PW-7 who admittedly did not conduct the post mortem is inadmissible. It was highly improbable that after
having given a thorough beating to the deceased, the police officials would bring the deceased in a pathetic condition to
a spot near his house and would continue the assaults in the presence of people of the locality. Opportunity was not
granted to cross-examine the court witnesses. Accordingly, High Court set aside the conviction.
14. In support of the appeal, Mr. S.B. Sanyal, learned senior counsel submitted that the case involved police officials and
the evidence brought on record by the complaint should not have been lightly brushed aside by conclusions which are
not supportable in law. In case of a custodial torture, the onus in one the police official to prove his innocence. AT every
stage an attempt was made to shield the accused and investigation was not done properly. The complainant's plea for
justice was very casually dealt with and ignored. It is not that the complainant was inactive, and on the contrary she had
moved the high dignitaries and finding that no justice has been done filed a private complaint. The oral dying declaration
has been erroneously kept out of consideration and by making surmises presence of PWs 1, 2 and 5 has been doubted
and their evidence has been discharged. The evidence of PWs 2 and 5 have been discharged because one Shamin who
was sent by PW-1 was not examined. It was clearly explained in evidence that she was absence from the locality and
therefore was not examined. Another conclusion of the High Court that PW-2 does not refer to the presence of PW-1 at
the spot is an erroneous conclusion and has been arrived at by mis-reading of the evidence. The credible evidence of
PWs 1, 2 and 5 has been totally discarded without any plausible basis. The medical evidence has also been misread by
High Court. No prejudice has been caused by the non-supply of the documents; and on the contrary, cross examination
has been conducted on the basis of documents which were supplied belatedly. Merely because there were some
exaggerations in the evidence of PWs. 1, 2 and 5, that cannot affect the credible evidence tendered by them and even
keeping out the exaggerations the residual evidence is sufficient to sustain conviction. Merely because the court
witnesses were not permitted to be cross examined, that is really of no consequence because their evidence was not
considered by the trial Court for recording conviction. Merely because casualty medical register was not produced, that is
also not a factor to discard the register containing the original reports of which a copy of the report was produced. Non-
supply of the copies of the statement did not per se cause prejudice. Strong reliance was placed on a decision of this
Court in Noor Khan v. State of Rajasthan MANU/SC/0083/1963 : 1964CriLJ167 for the said purpose.
15. It was also submitted that the entire object of the State machinery was to protect the police officials. Even if it was
not possible to collect more material, even the evidence on record was sufficient to find the accused guilty, and by
adopting a technical approach, contrary to the principles laid down by this Court, the acquittal should not have been
directed.
16. Mr. Arun Pednekar while adopting the arguments of Mr. Sanyal took the stand that even if the materials more or less
fell short of the required standard, one factor cannot be over looked that the police officials did not take any action as
required under law. Even if for the sake of arguments it is conceded that the materials are not sufficient to convict the
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accused, yet the State has a duty to explain as to under what circumstances a particular person in custody suffered
injuries and in appropriate cases its functionaries can be directed to bring it to the notice of the State Government to
pursue the matter further.
17. In response to the stands taken by the complainant, Mr. V.S. Kotwal, learned senior counsel appearing for the
accused-respondent No. 1 submitted that the complainant has not come to the Court with clean hands. Instead she tried
to abuse the process of the Court by bringing false accusations. Accused and the deceased were friends and there is no
reason as to why he would assault the deceased, and instead he would have tried to protect him in the connected case
where the deceased was an accused. What is alleged is not in line with the normal human conduct. The belated
complaint without any explanation for the delay has been rightly thrown out by the High Court. The injuries noticed by
the doctor who examined the deceased before his death did not show the involvement of the accused. In fact, at no
stage at the beginning the complainant has particularly named the accused. Even in the history sheets recorded by the
doctor, name of the accused did not figure. Interestingly, it was stated that the police had assaulted. Even in the initial
reports given by Pws. 1,2 and 5 name of the accused was not indicated, though he is known to PW1 and the deceased
intimately. Further, accusations were not against the accused alone, two other police officials were allegedly there giving
beatings to the deceased. Interestingly, in the private complaint filed, no definite role is ascribed to others and they have
not been arrayed as accused. It is not a case of mere exaggeration or embellishment; it is a totally false plea advanced.
One significant factor is that the accused was granted bail on 16.10.1983. The complainant has stated in the complaint
petition that when the deceased was produced in Court, he was in a pathetic condition. If that be so, it is unbelievable
that the Magistrate who granted bail would not have noticed this was would not have required the deceased to undergo
medical treatment or examination. It is not the case of the complainant that any grievance was made before the
Magistrate about police torture.
18. In the complainant petition, there is one significant statement about one Surya Prakash Singh witnessing the assaults
on 14.10.1983. Though his name is indicated in the list of witnesses strangely his evidence has not been tendered by
examining him as a witness. Though a writ petition was filed by the complainant before the High Court, in that there
was no allegation of the torture. Dr. Pankaj Joshi (DW-3) who examined the deceased on 15.10.1983, did not notice any
injury of serious nature except three superficial injuries. Before him also the deceased has not made any statement about
having been assaulted by the accused.
19. The court witnesses who were police officials were not permitted to be cross examined by the accused. This is clearly
contrary to the law as laid down by this Court in Mohanlal Shamji Soni v. Union of India and Anr.
MANU/SC/0318/1991 : 1991CriLJ1521 . Had the opportunity been granted, the truth would have been revealed.
20. The so-called oral dying declaration has rightly been discarded. If the witnesses knew that it was the accused who had
assaulted the deceased, there was no necessity of asking the deceased as to how he came to be injured. In the statement
recorded on 18.10.1983, the name of the accused as assailant has not been indicated. In short the stand was that the
accused has rightly been acquitted.
21. Learned counsel appearing for the State of Maharashtra submitted that the prosecution has not been partisan. It has
produced all the materials which were required to be produced before the Court, and inferences were drawn from the
materials available on record.
22. Before coming to the innocence or otherwise of the accused, two disturbing features which have attracted our notice
needs to be noticed. Firstly, no explanation has been offered as to why no FIR was registered. Learned counsel for the
State of Maharashtra submitted that the statements given by PWs 1, 2 and 5 were treated to be in terms of Section 174
of the Code and, therefore, no FIR was registered. To say the least, the stand is fallacious. It needs no reiteration that if
it is brought to the notice of the police that somebody had beaten the deceased, the FIR was to be registered. An
interesting explanation has been given by CW-1. He has stated that the statements were recorded in terms of Section 174
of the Code and in order to report to the coroner as regards the circumstances of the death. At that point of time the
sentiments were high. The allegations were looked into and the matter was reported to the higher authorities to order
independent Crime Branch inquiry. This witness also stated that he had also made enquiries from the accused and other
police officials and tried to obtain their version. The witness stated that he had personally questioned the accused and
two other PSI, and he perused the papers, medical certificate and station diary etc. and submitted his report through
ACP Irani. The official acted as if he was deciding the guilty or otherwise of an accused. The permissible area of
application of mind is limited to finding out existence of a cognizable offence, and nothing beyond that.
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23. It is a fairly well settled position in law that even at the time of taking cognizance the Court is not required to find
out which particular person is the offender, and the cognizance is taken of offence. The course adopted by the official
certainly tends to make a mockery of law. The official stated that he had requested the higher authorities to conduct
crime branch enquiry. It has not been shown as to what was the outcome of such enquiry, if any. We will revert back to
this aspect after dealing with the question whether accused is guilty.
24. The High Court has rightly observed that the private complaint was filed after a long lapse of time. If there was
inaction to deal with information lodged with the police in October 1983, there was no reason for the complainant to
wait for more than one year to approach the Court by making a private complaint. Though, delay per se may not affect
credibility of complainant's version, each individual case has to be tested to see whether delay has been properly
explained. Mr. Sanyal referred to the explanation given about the complainant having approached the Prime Minister
and the President. It was submitted that the complaint was not aware of the legal modes to be adopted, and therefore in
good faith was writing to the Prime Minister and the President. This plea is clearly unacceptable. in the complaint
petition itself it has been stated that legal advise was sought in the matter immediately after the occurrence and the legal
notices were sent by advocates. That being so, plea that the remedies available in law were unknown to the complainant
is unbelievable. The High Court has, therefore, rightly held this to be a vulnerable circumstance.
25. Coming to the acceptability of the evidence of PWs 1, 2 and 5 it is not merely a case of exaggeration or
embellishment.
26. It is the duty of Court to separate grain from chaff. Falsity of particular material witness or material particular would
not ruin it from the beginning to end. The maxim "falsest in uno falsest in omnibus" has no application in India and the
witnesses cannot be branded as liar. The maxim "falsest in uno falsest in omnibus" has not received general acceptance
nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that
in such cases testimony may be disregarded, and nt that it must be disregarded. The doctrine merely involves the
question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called
'a mandatory rule of evidence'. (See Nisar Alli v. The State of Uttar Pradesh MANU/SC/0032/1957 : 1957CriLJ550 ).
27. The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because
witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would
come to a dead-stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it
has to be appraised in each case as to what extend the evidence is worthy of acceptance, and merely because in some
respects the Court considers the same to be insufficient for placing reliance on the testimony of a witnesses, it does not
necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be shifted
with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose
evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab
s/o Beli Nayata and Anr. v. The state of Madhya Pradesh MANU/SC/0254/1972 : 1972CriLJ1302 and Ugar Ahir and
Ors. v. The State of Bihar MANU/SC/0333/1964 : AIR1965SC277 . An attempt has to be made to, as noted above, in
terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate
truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely
new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context
and the background against which they are made, the only available course to be made is to discard the evidence in toto.
(See Zwinglee Ariel v. State of Madhya Pradesh MANU/SC/0093/1952 : AIR1954SC15 and Balaka Singh and Ors. v.
The State of Punjab, MANU/SC/0087/1975 : 1975CriLJ1734 . As observed by this Court in State of Rajasthan v. Smt.
Kalki and Anr. MANU/SC/0254/1981 : 1981CriLJ1012 , normal discrepancies in evidence are those which are due to
normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock
and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material
discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to
which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case,
material discrepancies do so. These aspects were highlighted recently in Krishna Mochi and Ors. v. State of Bihar etc.
MANU/SC/0327/2002 : 2002CriLJ2645 , Gangadhar Behera and Ors. v. State of Orissa MANU/SC/0875/2002 :
2003CriLJ41 and Rizan and Anr. v. State of Chhattisgarh MANU/SC/0036/2003 : 2003CriLJ1226 .
28. It is a case where it is really difficult to separate the grain from the chaff. If really there was merciless beatings with
such brutal force that a hockey strick broke and the beating was given for more than one hour, the result would not have
been 16 simple injuries with no fractures or internal rupture. There is another vital factor which corrodes complainant's
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plea. If the condition of the accused was so serve that he was not able to even stand on 15.10.1983 morning as claimed,
it is not explained as to how the Magistrate who granted bail did not notice the condition or how even no grievance was
made by the deceased before him. There is a requirement under Section 54 of the code which deals with a right of an
arrested person to bring to the notice of the Court about torture or assault. The provision provides for an examination
of an arrested person by medical practitioner at the request of the arrested person and it is a right conferred on the
arrested person. As this Court had noticed that in many cases the arrested persons are not aware of the right, and on
account of ignorance are unable to exercise that right even though they have been tortured or mal-treated by the police
in lock up, a direction was given in Sheela Barse v. State of Maharashtra MANU/SC/0382/1983 : 1983CriLJ642 to the
Magistrates requiring them to inform the arrested persons about this right in case he has any complaint of any torture or
maltreatment in police custody. This apparently was not done by the deceased and it is a serious flaw to the complainant
version. It is not the case of the complainant that such a grievance was made and the Magistrate did not take note of it.
There are several inferences noticed by the High Court; and one of them is non supply of documents. Section 208 of the
Code deals with the requirements of furnishing documents to the accrued. Of course, it has rightly been submitted by
Mr. Sanyal that mere non supply of documents may not be considered prejudicial but the Court has to give a definite
finding about the prejudice or otherwise. This aspect was highlighted in Noor Khan's case supra.
29. Coming to the plea that refusal to grant permission to cross examine was impermissible in law, the parameters have
been indicated in Mohanlal Shamji's case supra. If the Court has permitted the accused to lead the evidence the mere
denial of cross-examining the man by the accused cannot be per se a vulnerable factor. In the present case, the three
police officials were not required to speak about the case at hand in general. They were in fact required to state about
certain documents in terms of Section 174 of the Code. It is of course true that when the permission has been granted to
cross examine, the accused could have produced some materials to support his case. We need not go into this aspect in
detail because the trial Court itself has permitted the accused to lead rebuttal evidence.
30. Though the High Court was not justified in saying that the register which contained the original entries regarding the
post mortem examination was not to be taken note of, learned counsel for the accused submitted that copy of the post
mortem report cannot be accepted in evidence. Strong reliance was placed on a decision of this Court in Vijinder v. State
of Delhi MANU/SC/1224/1997 : (1997)6SCC171 where the original post mortem report was not produced and the
doctor was not examined. A close reading of the decision shows that it was referred in a different factual context and on
the facts of the case it was held that the production of the original post mortem report, and the examination of the
doctor was necessary. While saying so, the principles of Section 32 of the Evidence Act were recognized and it was
noted that it was an appropriate case where logic of the said provision can be applied.
31. Coming to the evidence of PWs 1, 2 and 5 it is to be noted that apart from the exaggeration about the assaults,
evidence shows even some doubtful features about their presence.
32. In the initial statement given on 18.10.1983 PW - 1 has stated that, after seeing the beatings by the accused she sent
one person to call her mother-in-law to the spot and returned to her home. If that be so, it is quite improbable that she
saw PWs 2 and 5 together to witness the assaults.Though the High Court was not justified in doubting the version of
PWs 1, 2 and 5, because one Shamin was not examined, that actually would not dilute the conclusion regarding evidence
of PWs 2 and 5 about the alleged beatings on 15.10.1983 being extremely fragile. So far as the beating on 14.10.1983 is
concerned, the complainant's case is based on what one Surya Prakash Singh allegedly told her and the oral dying
declaration.. As rightly submitted by learned counsel for the accused, Surya Prakash Singh has not been examined and
there is no material to otherwise link the accused with the alleged beatings on 14.10.1933. The oral dying declaration also
is unbelievable if the PWs 1, 2 and 5 had really seen the assaults they would not have asked the deceased as to how he
sustained injuries. This improbabilises the claim of oral dying declaration. Coupled with this fact is the non mention of
the accused's name in the medical report. The doctor who examined the deceased stated that he did not implicate the
accuseds, specifically did not tell his name. Non-mention of accused's name may not in all cases be a vulnerable factor.
But in the factual background, it certainly assumes importance. Deceased made omnibus statement about assaults by the
police. It is not brought on record that the accused alone had assaulted the decreased. On the contrary, according to the
evidence of PW- 1, two constables had accompanied the accused and also had assaulted the deceased. Surprisingly they
were not made accused in the complaint.
33. Taking totality of the circumstances it is clear that the High Court was right in directing acquittal of the accused. We
decline to interfere with the judgment of acquittal.

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34. But before we part with the case, there are several factors which have, at the threshold, drawn our attention. There
are several loose ends, which as admitted by the prosecution, were not taken note of. Even according to the version of
the accused, the deceased was taken to the hospital and was examined by DW-3. What was the occasion for this being
done still remains shrouded in mystery. The post mortem report reveals 16 injuries, though of simple nature. If none of
these injuries was sustained by the deceased in police custody, there was no necessity of bringing the deceased to the
hospital on 15.10.1983 at 11.00 a.m. CW-2 has admitted that he had taken the deceased for examination by DW-3. The
Court could have asked him as to what was the necessity for doing so. That admittedly has not been done.
35. The Courts exist for doing justice to the persons who are affected. The Trial/First Appellate Courts cannot get
swayed by abstract technicalities and close their eyes to factors which need to be positively probed and noticed. The
Court is not merely to act as a tape recorder recording evidence, overlooking the object of trial i.e. to get at the truth,
and oblivious to the active role to be played for which there is not only ample scope but sufficient powers conferred
under the Code. It has a greater duty and responsibility i.e. to render justice, in a case where the role of the prosecuting
agency itself is put in issue.
36. As pithily stated in Jennison v. Backer 1972 (1) All E.R. 1006, "The law should not be seen to sit limbly, while those
who defy it go free and, those who seek its protection lose hope". Courts have to ensure that accused persons are
punished and if deficiency in investigation or prosecution is visible or can be perceived by lifting the veil trying to hide
the realities or covering the deficiencies, deal with the same appropriately within the framework of law. Justice has no
favourite, except truth. It is as much the duty of the prosecutor as of the Court to ensure that full and material facts are
brought on record so that there might not be miscarriage of justice.
37. Though justice is depicted to be blind, as popularly said it is only a veil not to see who is the party before it while
enforcing law and administrating justice and not to ignore or turn the mind/attention of the Court from the cause or lis
before it, in disregard of its duty to prevent injustice being done. When an ordinary citizen makes a grievance against the
mighty administration, any indifference, inaction or slumber will tend to paralyse by such inaction or lethargic action of
the Courts and erode in stages the faith, ultimately destroying the justice delivery system of the country itself. Doing
justice is the paramount consideration and that duty cannot be abdicated or diverted by manipulative red herrings. We
consider this to be a fit case for exercise of our jurisdiction under Article 142 of the Constitution. We direct the State
Government to pay compensation of Rs. 1,00,000/- to the mother and the children of the deceased. We are not granting
any compensation to the widow because she appears to have re-married. A sum of Rs. 25,000/- be given to the mother
and balance to the children. The amounts are to be paid kept in fixed deposit, and only the interest shall be allowed to be
drawn by the mother and the children. If the children are minors, the fixed deposit shall be made in their names through
a proper legal guardian till they attain majority. This amount of compensation shall be as a palliative measure and does
not preclude the affected person(s) from bringing a suit to recover appropriate damages from the State Government and
its erring officials if such a remedy is available in law. The suit it goes without saying, if filed, shall be decided in
accordance with law, uninfluenced by any finding, observation or conclusion herein. We further direct that an enquiry be
conducted by the Head of the Police force of the State under the direct control of the Chief Secretary of the State, to
find out as to who were the persons responsible for the injuries on the body of the deceased. The starting point of
course would be the enquiry as to the necessity for taking the deceased to the hospital on 15.10.1983 where DW-3
examined him. If on further enquiry and on the basis of materials collected it appears that the accused who is being
acquitted had a role to play, it shall be open to the authorities to initiate proceedings for action and the same shall be
taken notwithstanding the order of acquittal passed by the High Court and affirmed by us. This is so, because on the
materials now placed on record the acquittal was justified. Action will also be taken against the officials who did not
register the FIR and the authorities, who were requested to conduct the crime branch enquiry but yet do not appear to
have done anything in the matter. Our awarding compensation also shall not be considered as a factor to decide either
way as to whether any particular official was responsible for custodial torture. The appeal stands dismissed with the
aforesaid observations.

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MANU/SC/0964/2004
Equivalent Citation: 2006ACJ1002, 2005(1)ACR313(SC), AIR2005SC402, 2005(1)ALD(Cri)46, 2005(1)ALD46(SC),

2005((1))ALT(Cri)154, 2005(1)ALT(Cri)154, 2005CriLJ320, 2005(2)JLJ433(SC), JT2004(10)SC547, 2004(3)KLT971(SC),
RLW2005(2)SC209, 2004(9)SCALE390, (2005)9SCC631
Appellants: Munshi Singh Gautam (D) and Ors.

Vs.
Respondent: State of M.P.
Hon'ble Judges:
Dr. Arijit Pasayat and C. K. Thakker, JJ.
JUDGMENT
Arijit Pasayat, J.
1. "If you once forfeit the confidence of our fellow citizens you can never regain their respect and esteem. It is true that
you can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all
the time", said Abraham Lincoln. This Court in Raghubir Singh v. State of Haryana MANU/SC/0547/1980 :
1980CriLJ801 and Shakila Abdul Gafar Khan (Smt.) v. Vasant Raghunath Dhoble and Anr., MANU/SC/0677/2003 :
2003CriLJ4548 , took note of these immortal observations while deprecating custodial torture by the police.
2. Custodial violence, torture and abuse of police power are not peculiar to this country, but it is widespread. It has been
the concern of international community because the problem is universal and the challenge is almost global. The
Universal Declaration of Human Rights in 1948 which marked the emergence of a worldwide trend of protection and
guarantee of certain basic human rights stipulates in Article 5 that "No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment". Despite this pious declaration, the crime continues unabated, though
every civilized nation shows its concern and makes efforts for its eradication.
3. If it is assuming alarming proportions, now a days, all around it is merely on account of the devilish devices adopted
by those at the helm of affairs who proclaim from roof tops to be the defenders of democracy and protectors of
peoples' rights and yet do not hesitate to condescend behind the screen to let loose their men in uniform to settle
personal scores, feigning ignorance of what happens and pretending to be peace loving puritans and saviors of citizens'
rights.
4. Article 21 which is one of the luminary provisions in the Constitution of India, 1950 (in short the 'Constitution') and
is a part of the scheme for fundamental rights occupies a place of pride in the Constitution. The Article mandates that
no person shall be deprived of his life and personal liberty except according to the procedure established by law. This
sacred and cherished right i.e. personal liberty has an important role to play in the life of every citizen. Life or personal
liberty includes a right to live with human dignity. There is an inbuilt guarantee against torture or assault by the State or
its functionaries. Chapter V of the Code of Criminal Procedure, 1973 (for short the 'Code') deals with the powers of
arrest of persons and the safeguards required to be followed by the police to protect the interest of the arrested person.
Articles 20(3) and 22 of the Constitution further manifest the constitutional protection extended to every citizen and the
guarantees held out for making life meaningful and not a mere animal existence. It is, therefore, difficult to comprehend
how torture and custodial violence can be permitted to defy the rights flowing from the Constitution. The dehumanizing
torture, assault and death in custody which have assumed alarming proportions raise serious questions about the
credibility of rule of law and administration of criminal justice system. The community rightly gets disturbed. The cry for
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justice becomes louder and warrants immediate remedial measures. This Court has in a large number of cases expressed
concern at the atrocities perpetuated by the protectors of law. Justice Brandies's observation which have become classic
are in following immortal words :
"Government as the omnipotent and omnipresent teacher teaches the whole people by its example, if the Government
becomes a law breaker, it breeds contempt for law, it invites every man to become a law into himself", (in (1928) 277
U.S. 438, quoted in (1961) 367 U.S. 643 at 659).
5. The diabolic recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives
and liberty are under a new and unwarranted peril because guardians of law destroy the human rights by custodial
violence and torture and invariably resulting in death. The vulnerability of human rights assumes a traumatic torture
when functionaries of the State whose paramount duty is to protect the citizens and not to commit gruesome offences
against them, in reality perpetrate them. The concern which was shown in Raghubir Singh's case (supra) more than two
decades back seems to have fallen to leaf ears and the situation does not seem to be showing any noticeable change. The
anguish expressed in Gauri Shanker Sharma v. State of U.P. MANU/SC/0132/1990 : [1990]1SCR29 , Bhagwan Singh
and Anr. v. State of Punjab MANU/SC/0322/1992 : 1992CriLJ3144 , Smt. Nilabati Behera @ Lalita Behera v. State of
Orissa and Ors. MANU/SC/0307/1993 : 1993CriLJ2899 , Pratul Kumar Sinha v. State of Bihar and Anr.
MANU/SC/1144/1994, Kewal Pati (Smt. ) v. State of U.P. and Ors. MANU/SC/0693/1995 : 1995CriLJ2920 , Inder
Singh v. State of Punjab and Ors. MANU/SC/0380/1995 : 1995CriLJ3235 , State of M.P. v. Shyamsunder Trivedi and
Ors. MANU/SC/0722/1995 : (1995)4SCC262 and by now celebrated decision in Shri D.K. Basu v. State of West
Bengal MANU/SC/0157/1997 : 1997CriLJ743 seems to have caused not even any softening attitude to the inhuman
approach in dealing with persons in custody.
6. Rarely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel
alone who can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties
of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even
pervert the truth to save their colleagues - and the present case is an apt illustration - as to how one after the other police
witnesses feigned ignorance about the whole matter.
7. The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt by the
prosecution, at times even when the prosecuting agencies are themselves fixed in the dock, ignoring the ground realities,
the fact-situation and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of
justice and makes the justice delivery system suspect and vulnerable. In the ultimate analysis the society suffers and a
criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this
type of an unrealistic approach at times of the courts as well because it reinforces the belief in the mind of the police that
no harm would come to them if one prisoner dies in the lock-up because there would hardly be any evidence available to
the prosecution to directly implicate them with the torture. The courts must not lose sight of the fact that death in police
custody is perhaps one of the worst kind of crimes in a civilized society, governed by the rule of law and poses a serious
threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens recognized by the Indian
Constitution and is an affront to human dignity. Police excesses and the mal-treatment of detainees/under-trial prisoners
or suspects tarnishes the image of any civilised nation and encourages the men in 'Khaki' to consider themselves to be
above the law and sometimes even to become law unto themselves. Unless stern measures are taken to check the malady
of the very fence eating the crops, the foundations of the criminal justice delivery system would be shaken and the
civilization itself would risk the consequence of heading; towards total decay resulting in anarchy and authoritarianism
reminiscent of barbarism. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity
which they deserve, otherwise the common man may tend to gradually lose faith in the efficacy of the system of judiciary
itself, which if it happens will be a sad day, for any one to reckon with.
8. Though Sections 330 and 331 of the Indian Penal Code, 1860 (for short the 'IPC') make punishable those persons
who cause hurt for the purpose of extorting the confession by making the offence punishable with sentence up to 10
years of imprisonment, but the convictions, as experience shows from track record have been very few compared to the
considerable increase of such onslaught because the atrocities within the precincts of the police station are often left
without much traces or any ocular or other direct evidence to prove as to who the offenders are. Disturbed by this
situation the Law Commission in its 113th Report recommended amendments to the Indian Evidence Act, 1872 (in short
the 'Evidence Act') so as to provide that in the prosecution of a police officer for an alleged offence of having caused
bodily injuries to a person while in police custody, if there is evidence that the injury was caused during the period when
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the person was in the police custody, the court may presume that the injury was caused by the police officer having the
custody of that person during that period unless the police officer proves to the contrary. The onus to prove the
contrary must be discharged by the police official concerned. Keeping in view the dehumanizing aspect of the crime, the
flagrant violation of the fundamental rights of the victim of the crime and the growing rise in the crimes of this type,
where only a few come to light and others don't, the Government and the legislature must give serious thought to the
recommendation of the Law Commission and bring about appropriate changes in the law not only to curb the custodial
crime but also to see that the custodial crime does not go unpunished. The courts are also required to have a change in
their outlook approach, appreciation and attitude, particularly in cases involving custodial crimes and they should exhibit
more sensitivity and adopt a realistic rather than a narrow technical approach, while dealing with the cases of custodial
crime so that as far as possible within their powers, the truth is found and guilty should not escape so that the victim of
the crime has the satisfaction that ultimately the majesty of law has prevailed.
9. But at the same time there seems to be disturbing trend of increase in cases where false accusations of custodial
torture are made, trying to take advantage of the serious concern shown and the stern attitude reflected by the courts
while dealing with custodial violence. It needs to be carefully examined whether the allegations of custodial violence are
genuine or are sham attempts to gain undeserved benefit masquerading as victims of custodial violence. The case in
hand is unique case in the sense that complainant filed a complaint alleging custodial torture while the accused alleged
false implication because of oblique motives.
10. It is the duty of the police, when a crime is reported, to collect evidence to be placed during trial to arrive at the
truth. That certainly would not include torturing a person, be he an accused or a witness to extract information. The duty
should be done within four corners of law. Law enforcers can not take law into their hands in the name of collecting
evidence.
11. Facts of the present case as unfolded by prosecution during trial are as follows:
12. On the night intervening 19th and 20th June, 1984 to extort a confession from one Shambhu Tyagi (hereinafter
referred to as the 'deceased'), he was brought to the police station where he was beaten as a result of which he died and
thereafter to remove the traces of the crime and conceal the acts, the dead body was thrown near a Nala. The accused
persons, five in number, who were police officers of Police Station, Shahjahanabad, Bhopal thus committed offences
punishable under Sections 330, 302 and 201 IPC. In relation to a scooter theft, Mahesh Sharma and Rajkumar Sharma
(PW-12) were brought to Police Station, Shahjahanabad. As name of deceased was disclosed by these persons, around
1.30 A.M. (after mid-night) the accused persons went to the house of deceased from where he was brought to the Police
Station. When the deceased was brought Jawahar (PW-14) had seen the accused persons. Thereafter to extort confession
the deceased was badly beaten as a result of which he died. These accused-police officers forged the Rojnamacha report
to conceal the crime by recording that they received an information that some person was lying in the Nala bed and the
said person was intoxicated badly. As the witnesses and public at large raised hues and cries, the then Supdt. of Police,
Bhopal wrote a letter to the District Magistrate and also sent a letter to the Inspector General of Police for getting the
matter investigated through some independent agency. On basis of said letters, the District Magistrate got the matter
enquired through the C.I.D. Police. Statements were recorded; the medical reports were obtained; documents were
seized; panchnamas were prepared; and on completion of the investigation, the charge-sheet was filed in the concerned
court. Each of the accused persons denied allegations. The trial was conducted by learned II Additional Sessions Judge,
Bhopal. The Trial Court after recording the evidence and hearing the parties found each of the accused persons guilty
and sentenced them. The trial Court convicted each of the accused persons for offences punishable under Sections 304
Part I, 330 and 201 of the Indian Penal Code, 1860 (in short the 'IPC') sentencing each to undergo RI for 7 years, 3 years
and 2 years respectively. All the sentences were directed to run concurrently. Being aggrieved by the said judgment,
conviction and sentence, the accused appellants have filed appeal before the High Court.
13. The appellants filed appeals before the Madhya Pradesh High Court. By the impugned judgment the High Court
dismissed the appeals. During pendency of the present appeal before this Court, accused No. 1 Munshi Singh Gautam
expired and by order dated 2.10.2004 the appeal was held to have abated so far as he is concerned.
14. In support of the appeal, Mr. Uday U. Lalit, learned senior counsel submitted that the prosecution version as
unfolded is not supported by any cogent and credible evidence. The prosecution version mainly rests on the evidence of
Rajkumar (PW-12) and Jawahar (PW-14). While the latter's version has been relied upon by the prosecution to contend
that he had witnessed the deceased being taken away by the police officers, PW-12 on the other hand claimed to have
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witnessed beatings given by the accused persons to the deceased. It is pointed out that the medical evidence tendered by
Dr. D.K. Satpathy (PW-16) clearly rules out time of beatings as claimed to have been witnessed by Raj Kumar (PW-12).
His evidence is clearly to the effect that the deceased was suffering from T.B. and one lung was totally damaged. Taking
into account the quantity of liquor found in his stomach, the time of death was fixed about 4 hours before post-mortem
which started around 1.00 p.m. on 20.6.1984. His evidence is also to the effect that all the injuries were not of the same
time; some were about 4 hours old and the others were 12 hours old and some were one or two days old. Raj Kumar
(PW-12) is a liar as is evident from his testimony. He has given different version as to when he was arrested. Though he
claimed that he was also beaten along with one Mahesh who was not examined, he did not make any grievance before
the Magistrate when he was produced after his arrest. He gave varying dates so far his date of arrest is concerned. At one
place it was stated to be 20.6.1984 whereas on another place it was stated to be 23.6.1984. Though he claimed that he
was aware of the names of the accused persons, he did not mention it in his statement given during investigation. No
explanation has been offered for it. He was not acquainted with the accused persons. Similarly, Jawahar (PW-14) claimed
to have seen the accused persons. He identified them for the first time in Court. In his cross-examination he had
accepted that he did not give the physical description of the accused persons. He clearly admitted that he could not have
given the description because he had not seen them on the date of alleged date of occurrence. Therefore, the Courts
below in the absence of any test identification parade should not have placed reliance on their evidence. In any event,
when Jawahar (PW-14) accepted that he had not seen the accused persons the test identification parade would not have
also improved the situation. He had categorically stated that the deceased was wearing a janghia when he was taken by
the police. Doctor (PW-16) who conducted the post-mortem found that the deceased was fully dressed with pant and
shirt. Therefore, it was submitted that the conviction as recorded by the Trial Court and affirmed by the High Court is
unsustainable.
15. In response, Mr. R.P. Gupta, learned counsel appearing for the respondent-State submitted that as is well-known, in
case of custodial death, it is very difficult to have flawless evidence. The evidence of Rajkumar (PW-12) is cogent and
credible as found by the Courts below. Even though there are some minor flaws here and there, they do not affect
credibility of the prosecution version. Evidence of Jawahar (PW-14) has been corroborated by the evidence of other
witnesses. The medical evidence which is hypothetical in nature should not be given undue importance by-passing eye-
witness's version. Merely because Mahesh has not been examined that does not render the prosecution version
vulnerable as claimed by the accused-appellants. It is pointed out that in order to hide actual state of affairs a thoroughly
misconceived plea that police received information about somebody lying injured near Nala was made out. This plea is
also falsified when the evidence of doctor is noted. Dr. K.N. Agarwalla (PW-11) has categorically stated that the body of
the deceased was brought to the hospital around 8.15 a.m. by one police constable Shiv Prasad No. 238 of
Shahjahanabad Police Station and accused Gulab Singh Chaudhary. They told him that the deceased had come to the
police station in a very bad stage and with much difficulty he had told his name and thereafter fallen down unconscious.
It was further stated that they took him to the emergency ward, where he was declared dead. In the examination under
Section 313 of the Code the accused-appellant Gulab Singh Chaudhary has taken the similar stand. This is clearly
falsified by the defence version and evidence that police officers had gone to the spot on hearing that somebody was
lying injured there. Therefore, it was submitted that the Trial Court and the High Court were justified in finding the
accused-appellants guilty.
16. The evidence of Rajkumar (PW-12) and Jawahar (PW-14) relate to separate facets of the incident. The latter speaks
about the accused-appellants having taken the deceased along with them after mid-night of 19th June, 1984. Rajkumar
(PW-12) spoke of the assaults made inside the police station. Admittedly there was no test identification parade.
17. As was observed by this Court in Matru v. State of U.P. MANU/SC/0141/1971 : 1971CriLJ913 identification tests
do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency
with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The
identification can only be used as corroborative of the statement in court. (See Santokh Singh v. Izhar Hussain
MANU/SC/0165/1973 : 1973CriLJ1176 ). The necessity for holding an identification parade can arise only when the
accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who
claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without
any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an
identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression
and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. The
identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code
and the Evidence Act. It is desirable that a test identification parade should be conducted as soon as after the arrest of

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the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the
test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious
to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is
some delay, it cannot be said to be fatal to the prosecution.
18. It is trite to say that the substantive evidence is the evidence of identification in Court. Apart from the clear
provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The
facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general
rule, the substantive evidence of a witness is the statement made in Court. The evidence of mere identification of the
accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior
test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a
safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity
of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence,
however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony
it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation,
and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused
to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially
governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the
evidence of identification in Court. The weight to be attached to such identification should be a matter for the Courts of
fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See
Kanta Prashad v. Delhi Administration MANU/SC/0043/1958 : 1958CriLJ698 , Vaikuntam Chandrappa and Ors. v.
State of Andhra Pradesh MANU/SC/0224/1959 : AIR1960SC1340 , Budhsen and Anr. v. State of U.P.
MANU/SC/0103/1970 : 1970CriLJ1149 and Rameghwar Singh v. State of Jammu and Kashmir
MANU/SC/0174/1971 : 1972CriLJ15 ).
19. In Jadunath Singh and Anr. v. The State of Uttar Pradesh MANU/SC/0132/1970 : 1971CriLJ305 , the submission
that absence of test identification parade in all cases is fatal, was repelled by this Court after exhaustive considerations of
the authorities on the subject. That was a case where the witnesses had seen the accused over a period of time. The High
Court had found that the witnesses were independent witnesses having no affinity with deceased and entertained no
animosity towards the appellant. They had claimed to have known the appellants for the last 6-7 years as they had been
frequently visiting the town of Bewar. This Court noticed the observations in an earlier unreported decision of this
Court in Parkash Chand Sogani v. The State of Rajasthan (Criminal Appeal No. 92 of 1956 decided on January 15,
1957), wherein it was observed :-
"It is also the defence case that Shiv Lal did not know the appellant. But on a reading of the evidence of P.W. 7 it seems
to us clear that Shiv Lal knew the appellant by sight. Though he made a mistake about his name by referring to him as
Kailash Chandra, it was within the knowledge of Shiv Lal that the appellant was a brother of Manak Chand and he
identified him as such. These circumstances are quite enough to show that the absence of the identification parade
would not vitiate the evidence. A person who is well-known by sight as the brother of Manak Chand, even before the
commission of the occurrence, need not be put before an identification parade in order to be marked out. We do not
think that there is any justification for the contention that the absence of the identification parade or a mistake made as
to his name, would be necessarily fatal to the prosecution case in the circumstances."
The Court concluded:
"It seems to us that it has been clearly laid down by this Court, in Parkash Chand Sogani v. The State of Rajasthan
(supra) (AIR Cri LJ), that the absence of test identification in all cases is not fatal and if the accused person is well-
known by sight it would be waste of time to put him up for identification. Of course if the prosecution fails to hold an
identification on the plea that the witnesses already knew the accused well and it transpires in the course of the trial that
the witnesses did not know the accused previously, the prosecution would run the risk of losing its case."
20. In Harbhajan Singh v. State of Jammu and Kashmir MANU/SC/0127/1975 : 1975CriLJ1553 , though a test
identification parade was not held, this Court upheld the conviction on the basis of the identification in Court
corroborated by other circumstantial evidence. In that case it was found that the appellant and one Gurmukh Singh were
absent at the time of roll call and when they were arrested on the night of 16th December, 1971 their rifles smelt of
fresh gunpowder and that the empty cartridge case which was found at the scene of offence bore distinctive markings
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showing that the bullet which killed the deceased was fired from the rifle of the appellant. Noticing these circumstances
this Court held:-
"In view of this corroborative evidence we find no substance in the argument urged on behalf of the appellant that the
Investigating Officer ought to have held an identification parade and that the failure of Munshi Ram to mention the
names of the two accused to the neighbours who came to the scene immediately after the occurrence shows that his
story cannot be true. As observed by this Court in Jadunath Singh v. State of U.P. MANU/SC/0132/1970 :
1971CriLJ305 absence of test identification is not necessarily fatal. The fact that Munshi Ram did not disclose the names
of the two accused to the villages only shows that the accused were not previously known to him and the story that the
accused referred to each other by their respective names during the course of the incident contains an element of
exaggeration. The case does not rest on the evidence of Munshi Ram alone and the corroborative circumstances to
which we have referred to above lend enough assurance to the implication of the appellant."
21. It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in Court where
identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular
reason to remember the person concerned, if the identification is made for the first time in Court.
22. In Ram Nath Mahto v. State of Bihar MANU/SC/0630/1996 : 1996CriLJ3585 this Court upheld the conviction of
the appellant even when the witness while deposing in Court did not identify the accused out of fear, though he had
identified him in the test identification parade. This Court noticed the observations of the trial Judge who had recorded
his remarks about the demeanour that the witness perhaps was afraid of the accused as he was trembling at the stare of
Ram Nath -accused. This Court also relied upon the evidence of the Magistrate, PW-7 who had conducted the test
identification parade in which the witness had identified the appellant. This Court found, that in the circumstances if the
Courts below had convicted the appellant, there was no reason to interfere.
23. In Suresh Chandra Bahri v. State of Bihar MANU/SC/0500/1994 : 1994CriLJ3271 , this Court held that it is well
settled that substantive evidence of the witness is his evidence in the Court but when the accused person is not
previously known to the witness concerned then identification of the accused by the witness soon after his arrest is of
great importance because it furnishes an assurance that the investigation is proceeding on right lines in addition to
furnishing corroboration of the evidence to be given by the witness later in Court at the trial. From this point of view it
is a matter of great importance, both for the investigating agency and for the accused and a fortiori for the proper
administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the
accused. It is in adopting this course alone that justice and fair play can be assured both to the accused as well as to the
prosecution. Thereafter this Court observed:-
"But the position may be different when the accused or a culprit who stands trial had been seen not once but for quite a
number of times at different point of time and places which fact may do away with the necessity of a TI parade."
24. In State of Uttar Pradesh v. Boota Singh and Ors. MANU/SC/0182/1978 : [1979]1SCR298 , this Court observed
that the evidence of identification becomes stronger if the witness has an opportunity of seeing the accused not for a few
minutes but for some length of time, in broad daylight, when he would be able to note the features of the accused more
carefully than on seeing the accused in a dark night for a few minutes.
25. In Ramanbhai Naranbhai Patel and Ors. v. State of Gujarat MANU/SC/0744/1999 : 1999CriLJ5013 after
considering the earlier decisions this Court observed:-
"It becomes at once clear that the aforesaid observations were made in the light of the peculiar facts and circumstances
wherein the police is said to have given the names of the accused to the witnesses. Under these circumstances,
identification of such a named accused only in the Court when the accused was not known earlier to the witness had to
be treated as valueless. The said decision, in turn, relied upon an earlier decision of this Court in the case of State (Delhi
Admn.) v. V.C. Shukla MANU/SC/0545/1980 : 1980CriLJ965 wherein also Fazal Ali, J. speaking for a three-Judge
Bench made similar observations in this regard. In that case the evidence of the witness in the Court and his identifying
the accused only in the Court without previous identification parade was found to be a valueless exercise. The
observations made therein were confined to the nature of the evidence deposed to by the said eye-witnesses. It,
therefore, cannot be held, as tried to be submitted by learned Counsel for the appellants, that in the absence of a test
Page 133
identification parade, the evidence of an eye-witness identifying the accused would become inadmissible or totally
useless; whether the evidence deserves any credence or not would always depend on the facts and circumstances of each
case. It is, of course, true as submitted by learned Counsel for the appellants that the later decisions of this Court in the
case of Rajesh Govind Jagesha v. State of Maharashtra MANU/SC/0703/1999 : 2000CriLJ380 and State H.P. v. Lekh
Raj MANU/SC/0714/1999 : 2000CriLJ44 , had not considered the aforesaid three-Judge Bench decisions of this Court.
However, in our view, the ratio of the aforesaid later decisions of this Court cannot be said to be running counter to
what is decided by the earlier three-Judge Bench judgments on the facts and circumstances examined by the Court while
rendering these decisions. But even assuming as submitted by learned Counsel for the appellants that the evidence of,
these two injured witnesses i.e. Bhogilal Ranchhodbhai and Karsanbhai Vallabhbhai identifying the accused in the Court
may be treated to be of no assistance to the prosecution, the fact remains that these eye-witnesses were seriously injured
and they could have easily seen the faces of the persons assaulting them and their appearance and identity would well
within imprinted in their minds especially when they were assaulted in broad daylight. They could not be said to be
interested in roping in innocent persons by shielding the real accused who had assaulted them."
26. These aspects were recently highlighted in Malkhansingh and Ors. v. State of M.P. MANU/SC/0445/2003 :
2003CriLJ3535 .
27. Test identification parade would be of no consequence in view of Jawahar's (PW-14) evidence that he did not know
physical description of the accused-appellants as he had not seen them on the date of occurrence. What remains is the
evidence of Rajkumar (PW-12).
28. It was contended that the police officers had assaulted the witness (PW-12) for a pretty long time and physical
appearance and special features had been imprinted in the mind of the witness and merely because no test identification
parade was held that is of no consequence. This plea has to be examined in the light of evidence of Rajkumar (PW-12).
His evidence is full of unexplained contradictions. At one place he says he was arrested on 20 th June, 1984, at another
place he says he was arrested on 23rd June, 1984. He claimed that from 20th June till 22nd June, 1984 he was in police
custody. In cross-examination it was accepted that it was not so because he was taken to U.P. on 21st and 22nd June,
1984. In another vital improvement in his statement, he claimed that he knew the names of all the accused persons by
20th June, 1984 itself. Significantly, the names of accused persons are not stated by him when he was "examined by the
police. No explanation has been offered as to why he did not tell the names. This witness claimed that he had suffered
severed injuries. He admitted that he had not made any grievance to the Magistrate before whom he was produced after
his arrest. He also accepted that the alleged injuries were not bleeding. But his statement was that the blood on the floor
was cleaned by the accused persons. It is further stated that the police took his signatures when his statement was
recorded for the first time. Ext. D-3 was recorded on 26.6.1984 by which time he claimed to have known the names of
all the accused persons. Ext. D-3 did not contain any signature. Therefore, the evidence of PW-12 and PW-14 are not
sufficient to fasten guilt on the accused persons. But one significant aspect can not be lost sight of. That is the role of
accused B.S. Chaudhury. His definite plea was that the deceased was lying injured near the Nala and information to that
effect was received at the police station. But his statement before Dr. K.N. Agarwal (PW-1) was entirely different. The
effect of a false stand being taken in case of custodial death was considered by this Court in Sahadevan alias Sagadevan
v. State rep. by Inspector of Police, Chennai MANU/SC/1067/2002 : 2003CriLJ424 .
29. The plea that the deceased had come to the police station in a severe condition and after telling his name has
collapsed gets falsified by the categorical statement made by the accused in his statement under Section 313 of the Code
to the effect that on receiving information where the deceased was lying unconscious in injured state. In this view of the
matter, the case being one of custodial torture, accusations have been established so far as accused-appellant Gulab
Singh alias Gulab Singh Chaudhury is concerned.
30. The residual question is what is the offence committed by him. The evidence of Dr. D.K. Satpathy (PW-16) is very
relevant to decide the question. He found that the injuries were confined to the skin and upper level of the body.
Grievous injuries were not found on vital parts of the body like head, liver, spleen, heart, lungs etc. The duration of the
injuries were widely variant. The right lung of the deceased was TB affected. The combined effect of alcohol and the
injuries shortened the period of death and resulted in a quicker death. That being so, the conviction in terms of Section
304 Part II IPC cannot be faulted. His appeal fails and is dismissed. He shall surrender to custody to serve remainder of
his sentence. So far as other accused-appellants Bahadur Singh, Pooran Singh and Dhanraj Dubey are concerned, the
prosecution has not been able to bring home the accusations. Therefore, their appeals deserve to be allowed which we
direct. Their bail-bonds are discharged.
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31. The appeal is accordingly disposed of.

Page 135
MANU/SC/0050/2005
Equivalent Citation: 2005(1)ACR911(SC), AIR2005SC733, 2005(2)ALT(Cri)1, (2005)3CALLT34(SC), 2005CriLJ918,

2005(1)CTC457, JT2005(1)SC531, 2005(1)MPJR(SC)230, (2005)3SCC169, [2005]2SCR710, 2005(1)UJ417
Criminal Appeal Nos. 98, 99, 100-102, 103-108 and 109-114 of 1999
Appellants: State of Madhya Pradesh through C.B.I., etc.

Vs.
Respondent: Paltan Mallah and Ors. etc.
Niyogi Murder Case
Hon'ble Judges:
K. G. Balakrishnan and Dr. AR. Lakshmanan, JJ.
JUDGMENT
K.G. Balakrishnan, J.
1. Criminal Appeal Nos. 98-102 of 1999 and Criminal Appeal Nos. 109-114 of 1999 are filed by the State of Madhya
Pradesh through CBI and the Criminal Appeal Nos. 103-108 of 1999 are filed by the Chattisgarh Mukti Morcha. All
these appeals arise out of the common Judgment passed by the High Court of Madhya Pradesh on 26.6.1998. Nine
accused persons were tried by the Second Addl. Sessions Judge, Durg, M.P. Accused Nos. 1 to 8 were charged for the
offence under Section 302 read with Section 120B IPC. The 9th accused was charged under Section 302 read with
Section 120B, and in the alternative, Section 302 read with Section 34 IPC and Section 25(1)(A) and Section 27 of the
Arms Act. The Sessions Judge acquitted A-6 Naveen Shah, A-7 Chandrabaksh Singh and A-8 Baldev Singh Sandhu. A-1
Chandrakant Shah, A-2 Gyan Prakash Mishra, A-3 Avdhesh Rai, A-4 Abhay Kumar Singh, A-5 Moolchand Shah and A-
9 Paltan Mallah @ Ravi were convicted by the Sessions Judge for the offence under Section 302 read with Section 120B.
A-9 Paltan Mallah was found guilty of the offence punishable under Section 302 IPC and sentenced to capital
punishment whereas other accused were sentenced to life imprisonment. The High Court by the impugned Judgment
acquitted all the accused of the charges framed against them.
2. Deceased Shankar Guha Yogi was a popular, powerful trade union leader in the industrial region of Bhillai, Durg,
which was part of the then State of Madhya Pradesh. Deceased Shankar Guha Niyogi had been working for the welfare
of the labour demanding living wages, bonus, reinstatement of retrenched workers and he organised the workers of the
various industrial units at Bhillai and Durg. The labourers had an organisation by name "CHATTISGARH MUKTI
MORCHA" (hereinafter being referred to as "CMM") and deceased Niyogi became a leader of this organisation. He was
leading the labourers working at Rajaram Mines area which was a main source of raw material iron ore for the Bhillai
Steel Plant at Durg. In the year 1989, there was an agitation by the workers of industrial unit by name ACC, which is a
leading cement manufacturer. A settlement was reached at the instance of deceased Niyogi. The workers in other
industrial establishments sought the help of deceased Niyogi to solve their problems. In the year 1990, he came to Bhillai
and started occupying quarter No. MIG 1/55 of HUDCO. He stayed there with his servant Bahal Ram. The other
members of his family continued to stay near Rajhara. Deceased Niyogi set up an office for CMM at MIG-2/273
HUDCO. In the year 1990, there was widespread labour movement against the management of various industrial units
such as Simplex, Kedia, B.E.C, B.K, etc. According to the prosecution, the management of these industrial units started
opposing the labour movement and there was even physical attack on some of the leaders of CMM. One Uma Shankar
Rai, a leader of CMM was fatally assaulted by the agents of the industrialists. Deceased Niyogi apprehended serious
threat to his life from the industrialists, especially from Simplex and Kedia Group of Industries. He made notes in his
diary regarding the apprehension of danger from the management of these industrial units. On 27.9.1991, he had gone to
Raipur and there he met one Rajendra Sail, Secretary General of PUCL and reporter N.K. Singh of "India Today". He
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expressed an apprehension of danger to his life from Kedia and also from A-5 Moolchand Shah and A-1 Chandrakant
Shah of Simplex Group. On 27.9.1991 at about midnight, he left Raipur for Bhillai and reached his quarter No. MIG-
1/55 of HUDCO and went to bed. His servant Bahal Ram was occupying the neighbouring room. In the night, Bahal
Ram heard a noise like bursting of crackers and he rushed to the room of Niyogi and found Niyogi writhing in pain on
his bed. The window was found open. Bahal Ram called for help of the neighbour Sripad Mategaonkar. Few workers
from the CMM came to the place and it was found that Niyogi had been shot. He was immediately taken to the Sector 9
Hospital of Bhillai. Before reaching the hospital, Niyogi succumbed to the gun shot injuries. Post-mortem examination
was conducted by a team of doctors and they opined that death was due to bullet injuries.
3. Preliminary investigation was carried out by PW-182 Deputy Superintendent of Police Shri M.G. Agarwal. There was
agitation by the workers that investigation shall be conducted by the Central Bureau of Investigation and the
Government of Madhya Pradesh requested the Union of India seeking help of the Central Bureau of Investigation. As
part of police investigation, PW-182 visited the scene of occurrence and got prepared map of the site and he took steps
to see that viscera of the victim was sent for laboratory tests. He took into custody the pellets recovered from the body
of Niyogi. He took statements from Bahal Ram, the servant and also from the widow and daughter of deceased. He got
prepared photograph Exh. P-180 to P-196. He got report from Serum Science and Chemical Analysis which are marked
as Exh. P-430 to P-432. He recorded statements of various other witnesses. Accused A-3 Avdhesh Rai was taken into
custody on 13.10.1991. On 1.11.1991, he seized diary of deceased "Niyogi and on 9.11.1991 he handed over the
investigation to CBI officials.
4. PW-187 R.S. Dhankad took over the investigation along with PW 192 R.S. Prasad. PW-187 held search of Oswal
Industry. He recorded the statements of Zakkiruddin on 21.11.1991. This witness identified the photographs of A-2
Gyan Prakash Mishra and A-3 Abhay Kumar Singh., PW-192 conducted further investigation of the case along with
other officers. On 10.11.1991, he seized the window curtains from the house of Niyogi. On 15.11.1991, he conducted
searches of the business premises of Jain and Shah and Company, 108 A. Khan Goga Complex and recovered articles
under Exh. P-297.
5. After the arrest of accused Paltan Mallah on 25.8.1993, he got recovered 12 bore country made weapon, 13 live
cartridges of 12 bore, a foreign made revolver, 6 live cartridges of 38 bore and a -red colour Suzuki motorcycle. He sent
Exh. P-403 and 404 to Central Forensic Laboratory (CBI), New Delhi. He conducted various other searches and
recovered incriminating articles from the other accused. After investigation, final report was filed.
6. On the side of prosecution, PW 1 to PW-192 were examined by the trial court.
7. The High Court by the impugned judgment acquitted all the accused and that is challenged before us.
8. We elaborately heard the counsel for the State, counsel for the Chattisgarh Mukti Morcha and also various other
counsel who appeared for the accused persons. The accused A-1, A-2, A-3, A-4, A-5 and A-9 were found guilty by the
Sessions Court on the basis of the circumstantial evidence adduced by the prosecution. The Division Bench held that
these circumstances were not sufficient to prove the guilt of the accused. This being an appeal against acquittal, this
Court would be slow in interfering with the findings of the High Court, unless there is perverse appreciation of the
evidence which resulted in serious miscarriage of justice and if the High Court has taken a plausible view this Court
would not be justified in interfering with the acquittal passed in favour of the accused and if two views are possible and
the High Court had chosen one view which is just and reasonable, then also this Court would be reluctant to interfere
with the judgment of the High Court. With these principles in mind, we have carefully considered the evidence of the
prosecution.
9. The Sessions Judge relied on various items of evidence to prove that there was a deep-rooted conspiracy among the
accused to murder the deceased Shankar Guha Niyogi. In order to prove the conspiracy, the Sessions Judge relied on
certain circumstances. One of the circumstance relied is that A-1, A-4, A-5 and A-7 had a strong motive to do away with
deceased Shankar Guha Niyogi. Motive by itself is not sufficient to prove the guilt of the accused. However, the
prosecution adduced extensive evidence to show that A-1, A-4, A-5 and A-7, were owners of certain industries at Durg
and the trade union activities of deceased Niyogi created a lot of problems in running their business and caused loss to
these industries. M/s Simplex is one of the factories referred to by the witnesses for the prosecution. Several witnesses
were examined to prove that Simplex and Kedia Distilleries were acting against the interests of the workers and there

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were series of agitations by the workers against the factory owners. Evidence was also adduced to show that some
workers were retrenched from Simplex and the agitating workers wanted the reinstatement of the retrenched workers.
Some of the witnesses examined by the prosecution turned hostile and did not support this version. The overall
evidence given by the prosecution would only show that some agitation had been going on against the management of
these industries and the deceased Niyogi was spearheading many of these agitations. This by itself would not prove the
prosecution case of conspiracy.
10. Another item of evidence is the recovery of a diary allegedly maintained by deceased Niyogi. The diary of Niyogi was
marked Exh. P-93. In the diary, Niyogi had written that industrialists like) Simplex/Kedia along with higher officials of
Durg district had formed a fascist gang and that the sad thing was that the judiciary of Durg and Rajnanadagaon districts
had also joined this gang. On page 172 of the diary, he had written the names of A-2, A-3. In a micro cassette produced
as Article 'C', deceased Shankar Guha Niyogi had recorded a speech wherein he mentioned that he apprehended a
danger at the hands of some persons and he also said that people of Simplex were indulging in, mischief and in particular
the fifth respondent Moolchand Shah. The name of A-2 was also mentioned in the diary. That apart, deceased Shankar
Guha Niyogi submitted a memorandum to the President of India. In this memorandum he has stated elaborately the
grievances of the workers and emphasized that the industrialists had been doing their utmost to break the workers
organization and they had even resorted to physical violence on workers. He alleged that police personnel were helping
the industrialists and he appealed to the President to bring a check on these acts of violence by industrialists.
11. The entries in the diary and certain statements of the deceased recorded on a micro cassette were sought to be made
admissible as evidence under Section 32 of the Evidence Act. Section 32 of the Evidence Act says that the statement,
written or oral, of relevant facts made by a person who is dead, are themselves relevant facts, but this statement should
have been made as to the cause of his death or as to any of the circumstances of the transaction which resulted in his
death when such question comes up for consideration by the court. It is true that when such statements were made, the
maker of the statement need not be under the expectation of death. But nevertheless, these statements should give either
the cause of his death or any of the circumstance which led to his death.
12. The entries in the diary and the representation Niyogi had submitted to the President of India were in general terms.
He apprehended some danger at, the hands of some industrialists as the agitation of the workers had been going on and
in some instances the henchmen of the industrialists had unleashed physical violence on the workers. Even though he
had mentioned the names of some of the accused persons in the diary and in the cassette, that by itself may not be of
any assistance to the prosecution, to prove the case as the entries in the diary and cassette do not refer to any event
which ultimately was the cause of his death.
13. Another item of evidence strongly relied on by the prosecution to prove the case of conspiracy is that some of the
accused persons had visited Nepal, which, according to the prosecution, was to procure some illegal weapons to carry
out the common object of the conspiracy. PW-91 Ravinder Kumar Mende @ Ravi deposed that the first accused
Chander Kant Shah made the programme of going to Nepal in a tempo truck and the first accused along with A-4
Abhay Kumar Singh and A-3 Avdhesh Rai went to Nepal via Banaras. On the way, they stayed at Khalispur and reached
Nepal on the next day and stayed at Hotel Kailash. The second accused Gyan Prakash Misra reached there after two
days. The second accused when questioned under Section 313 Cr.P.C. admitted that they had gone to Nepal on a
pilgrimage. The prosecution, when conducted a search at the residence of A-1 Chandrakant Shah recovered certain
articles. Some of the old bills were recovered and on the reverse side of a bill marked as Exh. P-393 (8) issued on
12.11.91 by a provision store in Nepal, certain entries have been made in respect of some foreign-made firearms. These
entries were in the hand writing of the second accused Gyan Prakash Misra. The price of the weapons also is mentioned.
The Sessions court assumed that these accused must have procured some weapons during their visit to Nepal. These
entries in Exh. P393(8) by itself do not prove that fact. No bills proving purchase of foreign-made weapons were
recovered from any of these accused persons. The visit to Nepal was in March, 1991. This, according to the Sessions
Judge was part of the conspiracy and not a pilgrimage as the first accused had not gone with the members of his family.
The visit to Nepal by these accused persons and the recovery of a bill do not advance the prosecution case to prove
criminal conspiracy alleged against them.
14. The other items relied on by the prosecution to prove the case against the accused are the various recoveries effected
by the investigating agency, but none of these items would prove the involvement of these accused in the conspiracy.
These items would include Exh. P-239 recovered from the office of the first accused. In Exp. P-239 slip, the registration
number of the car which was being used by deceased Niyogi and also the registration number of a jeep registered in the
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name of Chattishgarh Mukti Morcha were written. This according to the prosecution would show that the accused were
watching the movements of deceased Niyogi. We are not able to attach any further importance to these documents.
15. Another document is Ex-P-298, which is a letter alleged to have been written by the second accused to the sixth
accused indicating that he had received Rs. 20,000/- for the work he had done. The recovery of this letter by the
investigating officer is surrounded in mystery. It is alleged that it was found in torn pieces and this letter is alleged to
have been recovered on 15.12.1991 by the investigating officer when a search was conducted in the office of the first
accused. The case of the prosecution is that the money transaction indicated in Exh. P-298 is the consideration given to
the second accused for having caused the death of deceased Niyogi. PW-158 Devendra Jain was alleged to be the person
who delivered this letter to the first accused, but he turned hostile and did not support the prosecution. Even if the letter
is assumed to be true, it would only show that there was some money transaction between the second accused and the
sixth accused and in no way it is proved that the amount of Rs. 20,000/- alleged to have passed between the parties was
in consideration of the illegal act carried out at the instance of the second accused. The High Court was justified in not
relying on this document.
16. The prosecution relied on the arrangement of granting the contract for a cycle stand in the cinema theatre, by name
Maurya Talkies. PW-102 Kamaluddin was examined to prove this fact. He deposed that the contract was taken in the
name of A-3 Avdhesh Rai and the income from the cycle stand was deposited in the Syndicate Bank in the account of
the second accused Gyan Prakash Mishra. This, according to the prosecution, was an arrangement made at the instance-
of A-8 Baldev Singh Sandhu. PW-102 does not know anything about the nature of this transaction and there is no other
evidence, oral or documentary, to show that the contract of the cycle stand at Maurya Talkies has got anything to do
with the murder of the deceased Shankar Guha Niyogi.
17. The fact that some of these accused had absconded from the place of their business at the relevant time is also
pointed out by the counsel for the appellant as an incriminating circumstance. When the murder of a trade union leader
took place, there were strong allegations that the industrialists in the area had been instrumental in causing his death.
Under those circumstances, if any of these accused had absconded from the place, it could not be said to be a factor to
prove their guilt.
18. Another incriminating circumstance sought to be proved against the accused is the extra-judicial confession alleged
to have been made by the ninth accused Paltan Mallah wherein he named A-1, A-2, A-5 and A-6. It is alleged that he
made the confession to PW-105 Satyaprakash Nishad and A-9 is alleged to have disclosed to PW-105 that these accused
persons had given him money and he murdered Shankar Guha Niyogi for the sake of money. Under Section 30 of the
Evidence Act, the extra-judicial confession made by a co-accused could be admitted in evidence only as a corroborative
piece of evidence. In the absence of any substantive evidence against these accused persons, the extra-judicial confession
allegedly made by the ninth accused loses its significance and there cannot be any conviction based on such extra-judicial
confession. The High Court, in our view, has given cogent and satisfying reasons for the acquittal of the accused A-1 to
A-8. We do not find any reason to interfere with such a finding, especially when this being an appeal against acquittal
and this Court would be slow in reversing such a finding unless the High Court had made a perverse or erroneous
appreciation of the evidence resulting in grave miscarriage of justice. The evidence adduced by the prosecution can only
throw some serious suspicion against these accused which cannot be used as a substitute for evidence.
19. Now we come to the question of the complicity of the ninth accused Paltan Mallah. His case stands on a entirely
different footing. There is evidence against this accused and the High Court brushed aside the prosecution evidence
against him on flimsy reasons. There are several items of evidence to show that the ninth accused and none else caused
the death of Shankar Guha Niyogi. This accused is a person hailing from Gorakhpur in the State of Uttar Pradesh. He
had come to Bhilai and was engaged in petty jobs. He had been involved in a series of criminal cases and happened to be
in custody for some period.
20. PW-63 who was the sub-jailor at Durg jail for the period 1988 to 1992 deposed that the ninth accused Paltan Mallah
was lodged as an under-trial prisoner at Durg jail from 1995 to 1998. The second accused Gyan Prakash Mishra and the
third accused Avdhesh Rai were also under-trial prisoners in Durg jail during this period. Accused Paltan Mallah had
involved himself in several criminal cases registered for offences punishable under Section 457, 380, 370, 394 IPC and
Section 25 of the Arms Act. He was also involved in another case registered under Section 353, 307, 397, 341, 294,
304B, 323 IPC and Section 25 of the Arms Act and he was lodged as a prisoner from 1.3.1988 to 10.8.1988 in Durg jail.

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PW-121 is a photographer who deposed that in the beginning of 1991, he had taken photograph of a prisoner and he
identified the Exh. P-318 photograph. This photograph is admittedly that of the ninth accused Paltan Mallah.
21. The High Court in the impugned judgment stated that there is absolutely no evidence to show that Paltan Mallah
could have been at Bhilai during the relevant period. In a murder that took place during night, there would not be any
direct evidence to prove the fact, but various circumstances would show that the ninth-accused was in-Bhilai during
1991. This accused was staying with PW-51 Reshami Bai. She deposed that accused Paltan Mallah had gone to Bombay
and this evidence was erroneously taken into consideration by the High Court. It is common knowledge that the wife of
an accused, leave aside the exceptional cases, would always give evidence only to support the husband.
22. There is also evidence of PW-66 Nuruuddin. PW-66 is running an arms shop at Sadar Bazar in Raipur. He deposed
that on 14.9.1991 one Birendra Kumar came to his shop along with a boy to purchase certain material. He showed his
licence and expressed his intention to purchase a gun. He told him that he was acquainted with a person who was an
expert in firearms. He then left the boy in the shop to fetch that armouser. After 15-20 minutes, Birendra Kumar came
with PW-59 Rajbahadur who selected a twelve bore gun of single barrel and entries were made in the register. He
deposed that Birendra Kumar purchased five cartridges along with the gun and few L.G. cartridges by using the licence
of a person, by name, Satya Narayan Singh. PW-66 deposed that all along the boy was sitting in his shop and he
identified the boy as the ninth accused Paltan Mallah. He further stated that the CBI officials came and questioned him
and showed him the photograph of that boy. This witness identified the ninth accused Paltan Mallah in the court.
23. The counsel for the accused vehemently attacked the evidence of PW-66. It was submitted that going by the
evidence of PW-75, P-61 Jakruddin and PW-72 Jainarayan Tripathi, the accused Paltan Mallah. could not have been
present in the shop and that those who were in the shop were Birendra Kumar, PW-59 Rajbahadur and the father of
PW-59. According to PW-61, he had sold 13 cartridges, to Satyanarayan Singh and Birendra Kumar had signed in the
register. PW-59 Rajbahadur deposed that he is an in the police department. He deposed that Ram Bahadur, a police
constable told him that his son had taken a licence and he wanted to purchase a gun. Rajbahadur and his son went to the
shop of PW-61 for purchasing a gun. Based on the evidence of PW-59, PW-61 and PW-72 it was stated that the ninth
accused Paltan Mallah could not have been in the shop of PW-66, but in the face of the evidence of PW-66, we do not
think that there was any mistake as to the identity of Paltan Mallah. Of course, the fact that the prosecution wanted to
prove further that the L.G. cartridges were passed on to these accused and the same were used in the commission of the
crime is not proved by any direct evidence. PW-66 appears to be an independent reliable witness and from his evidence,
it is clear that the accused was at Bhilai during the relevant period. It is also proved by satisfactory evidence that the
accused Paltan Mallah had been involved in cases relating to illegal use of arms.
24. The next evidence against the ninth accused came to surface in 1993 at the time of his arrest by an air-force officer
alleging that he was in illegal possession of certain firearms. The air-force officer handed over the ninth accused to PW-
125, who was a sub-inspector at the Rudrapur police station. On questioning Paltan Mallah, PW-125 came to know that
he had been involved in the murder of Shankar Guha Niyogi. He informed the CBI officials and recorded the
confession made by Paltan Mallah. Based on the confession given by accused Paltan Mallah, certain recoveries were
effected.
25. Based on the information furnished by him, PW-125 along with PW-104 Dinesh Baloni left for the village Nibahi
and reached the place which according to the prosecution was the house of the accused Paltan Mallah. Another witness
Farukh Mirza Baig accompanied them. This witness is a resident of Nibahi. The accused pointed out that near the
northern wall of the house he had buried certain articles. The accused Paltan Mallah removed the earth, took out a
bundle wrapped in a plastic sheet. The bundle contained a country-made pistol with 13 cartridges, 2 L.G. cartridges and
others were .38 bore cartridges. PW-125 recovered these articles and in the seizure memo, Dinesh Baloni, one Ram
Bahadur and Farukh Mirza Baig and the accused had signed. From there, they left and reached the house of PW- 105,
Satyaprakash Nishad, in village Chainpur, where the accused had hidden his TVS Suzuki motorcycle. The motorcycle
was recovered and there was no number plate on the motorcycle.
26. The recovery of the country-made pistol at the instance of the accused Paltan Mallah was seriously challenged on
various grounds. It was contended by the counsel that the recovery of the weapon was not effected in accordance with
law and the witness PW-104 Dinesh Baloni was not a resident of the village Nibahi and that he was brought from a
different place only for the purpose. It was argued that as recovery was not effected in accordance with law, the entire
evidence is inadmissible as the search itself is illegal. The counsel further contended that the recovery of weapons
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at the instance of the accused Paltan Mallah is not admissible in evidence as the disclosure statement marked Exh. P-285
would only show that the accused had the knowledge of the concealment of the weapon and that he was not the author
of that concealment. Counsel for the accused Paltan Mallah placed reliance on two decisions, namely, Mohmed
Inayatullah v. State of Maharashtra MANU/SC/0166/1975 : 1976CriLJ481 and Pohalya Motya Valvi v. State of
Maharashtra MANU/SC/0204/1979 : 1979CriLJ1310. The above two decisions are not relevant in this case as in the
Exp. P-285 the accused specifically says that he concealed the weapon himself. As the alleged confession clearly states
that the accused himself has concealed it, the recovery of the weapon assumes importance in this case.
27. The counsel for the respondent-accused further contended that PW-125 was not investigating the case of accused
Paltan Mallah and that the custody of the accused Paltan Mallah was entrusted to him alleging that he had unlawfully
trespassed into the prohibited area belonging to Air Force and PW-125 could have conducted investigation of that case
only and if at all he had come to know of the involvement of the accused in other cases, he should have contacted the
CBI and informed them of the alleged concealment of weapon. It was pointed out that the CBI officers had reached that
place and met PW-125 even before he went with the accused Paltan Mallah for the alleged search and seizure. The
counsel submitted that the search and seizure was completely illegal and therefore the evidence obtained under such
illegal search is to be completely excluded. The plea of the respondent cannot be accepted.
28. In India, the evidence obtained under illegal search is not completely excluded unless it has caused serious prejudice
to the accused. The discretion has always been given to the court to decide whether such evidence is to be accepted or
not. In Radha Krishan v. State of U.P. MANU/SC/0146/1962 : (1963)IILLJ667SC , speaking for a three Judge
Bench, Justice Mudholkar held :
"So far as the alleged illegality of the search is concerned, it is sufficient to say that even assuming that the search was
illegal and the seizure of the articles is not vitiated. It may be that where the provisions of Sections 103 and 165 of the
Code; of Criminal Procedure are contravened the search could be resisted by the person whose premises are being
searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the
evidence regarding the seizure. But beyond these two consequences, no further consequence ensues."
29. In a subsequent decision reported in Pooran Mal v. Director of Inspection MANU/SC/0055/1973 :

[1974]93ITR505(SC) , this Court held :
"So far as India is concerned its law of evidence is modeled on the rules of evidence which prevailed in English Law, and
Courts in India and in England have consistently refused to exclude relevant evidence merely on the ground that it is
obtained by illegal search or seizure.... It would thus be seen that in India, as in England, where the test of admissibility
of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other
law, evidence obtained as a result of illegal search or seizure is not liable to shut out"
30. This decision was later followed in Dr. Pratap Singh v. Director of Enforcement MANU/SC/0202/1985 :
1986CriLJ824.
31. The provisions contained in the Criminal Procedure Code relating to search and seizure are safeguards to prevent the
clandestine use of powers conferred on the law enforcing authorities. They are powers incidental to the conduct of
investigation and the legislature has imposed certain conditions for carrying out search and seizure in the Code. The
courts have interpreted these provisions in different ways. One view is that disregard to the provisions of the Code of
Criminal Procedure relating to the powers of search and seizures amounts to a default in doing what is enjoined by law
and in order to prevent default in compliance with the provisions of the Code, the courts should take strict view of the
matter and reject the evidence adduced on the basis of such illegal search. But often this creates a serious difficulty in the
matter of proof. Though different High Courts have taken different views, the decisions of this Court quoted above
have settled the position and we have followed the English decisions in this regard. In the Privy Council decision in
Kuruma v. The Queen (1955) A.C. 197, Lord Goddard, C.J. was of the firm view that in a criminal case the Judge
always has a discretion to disallow evidence if the strict rule of admissibility would operate unfairly against an accused.
The trend of judicial pronouncements is to the effect that evidence illegally or improperly obtained is not per se
inadmissible. If the violation committed by the investigating authority is of serious nature and causes serious prejudice to
the accused, such evidence may be excluded.

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32. It may also be noticed that the Law Commission of India in the 94 th Report suggested the incorporation of a
provision in Chapter 10 of the Indian Evidence Act, 1872. The suggestion was to the effect that in a criminal
proceeding, where it is shown that anything in evidence was obtained by illegal or improper means, the court, after
considering the nature of the illegality or impropriety and all the circumstances under which the thing tendered was
obtained, may refuse to admit it in evidence, if the court is of the opinion that because of the nature of the illegal or
improper means by which it was obtained, its admission would tend to bring the administration of justice into disrepute.
The Commission also quoted the various circumstances surrounding the proceedings that may entail the exclusion of
such evidence but the suggestion of the Law Commission was not accepted and no legislation was effected in line with
the recommendations of the 94th Report of the Law Commission and the position continues to be that the evidence
obtained under illegal search could still be admitted in evidence provided there is no express statutory violation or
violation of the constitutional provisions. For example, if certain specific enactments are made and the search or seizure
is to be effected in accordance with the provisions of such enactment, the authorities shall comply with such provisions.
The general provisions given in the Criminal Procedure Code are to be treated as guidelines and if at all there is any
minor violation, still the court can accept the evidence and the courts have got discretionary power to either accept it or
reject it.
33. In the instant case, we do not think that the court has violated any such provision merely because the witness was
not from the same locality and his evidence cannot be rejected.
34. The next important evidence against the respondent-accused Paltan Mallah are the two extra-judicial confessions
allegedly made by him to two witnesses. The first is the confession the appellant is alleged to have made to PW-105
Satyaprakash Nishad and the second to PW-124 Bishambhar Prasad Sahni. PW-105 Satyaprakash Nishad is related to
Paltan Mallah. He deposed that in 1991 Paltan Mallah came to Chainpur village which is about 3540 kms. away from his
village at Nibahi. PW-105 deposed that Paltan Mallah told him that he is involved in the murder of a leader and the CBI
was in search of him and on further questioning he- told the entire details. He gave the names of other accused also and
informed the witness that CBI had announced Rupees one lakh as reward for his capture and therefore he wanted to go
to Nepal. The witness agreed to take him to Pohari Bazar where his sister was married to one Keshnath Nishad. The
witness further deposed that he took Paltan Mallah to his brother-in-law who was working in the Railways, but his
brother-in-law said he could not hide Paltan Mallah. He had also given evidence to the effect that Paltan Mallah left his
motorcycle at his residence and he later came to know that in August, 1993 Paltan Mallah was caught by the police. The
evidence of this witness was seriously challenged in cross-examination. He was extensively cross-examined and a perusal
of his cross-examination would show that the witness could withstand the cross-examination successfully. His evidence
is to be appreciated in the light of the evidence of PW-124 and also the recovery of the motorcycle from the premises of
the witness. The evidence of PW-124 fully supports the evidence of PW-105. PW-124 Bishambhar Prasad Sahni was the
headmaster of a school during the relevant time and he was working in the Higher Secondary School of Navalparsi since
1976. He is a post-graduate from Tribhuvan University and his relatives are in village Kusha (U.P.). PW-124 deposed
that accused Paltan Mallah came to his house along with Keshnath, the brother-in-law of PW-105. They came in the
evening and on the next morning he asked Paltan Mallah about the purpose of his visit. Then Keshnath told that Paltan
Mallah was a distant relative of his brother-in-law and that he should get some safe place for him in Nepal. The witness
asked why he wanted to stay in Nepal and Paltan Mallah had a detailed discussion and he revealed that he had murdered
Shankar Guha Niyogi in complicity with Gyan Prakash Mishra. The witness deposed that he got agitated and angry and
scolded his brother-in-law Keshnath and asked them to leave the place immediately. The statement of PW-124 was
recorded in 1993, but in the cross-examination, he mistakenly stated that CBI officers had come there fifteen days after
the departure of Paltan Mallah. This evidently is a mistake and for this sole reason the evidence of this witness was
discarded. The extra-judicial confession made by the accused Paltan Mallah to PW-124 is unimpeachable. PW-124 is a
headmaster of a school who had no axe to grind against the accused and he was working at a far distant place and the
CBI must have come to know of the alleged extra-judicial confession made on the basis of questioning the accused. The
questioning of PW-124 by police was in 1993. The extra-judicial confession implicating the second accused Gyan
Prakash Mishra is not strictly admissible as it is a confession made by a co-accused and could be used only as a
supporting evidence. Though the evidence as such cannot be used against Gyan Prakash Mishra, the extra-judicial
confession revealed by PW-124 Bishambhar Prasad Sahni is reliable and trustworthy and fully supported by the evidence
of PW-125 and we find no reason to discard the same.
35. Then the most important item of evidence against the accused, Paltan Mallah, is the report of the ballistic expert.
PW-192, the Deputy Superintendent of Police of the CBI deposed that after the arrest of the appellant Paltan Mallah on
25.8.1993, he recovered one 12 bore country-made pistol, 13 live cartridges 12 bore, one foreign made pistol, 6 live

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cartridges of .38 bore and a motorcycle. The country-made pistol, the foreign made pistol and the cartridges were sent
for examination by the ballistic expert to the Central Forensic & Science Laboratory, New Delhi. During the post-
mortem of the deceased Shankar Guha Niyogi, three pellets were extricated from his body. These pellets were sent to
Forensic Laboratory at Sagar and thereafter they were deposited in the court by PW-192 and these pellets were also later
on obtained from the court and sent for examination by the CFSL. PW-159, the ballistic expert conducted detailed
laboratory test-fires and microscopic examination and he gave Exh.P-398 report wherein he opined that three lead
pellets marked P-1 to P-3 must have been fired from a 12 bore country-made pistol. He deposed that he had prepared
the report on the basis of the microscopic examination and he had also taken photographs of the pellets and Exh. P-398
are the work-sheets of the report prepared by him.
36. The evidence of PW-159 and his report are seriously challenged by the counsel for the respondent accused. He
extensively referred to the text books written by foreign ballistic experts such as Burrad, Hatcher and Taylor. It was
argued that in the instant case, the weapon was a country-made pistol and the barrel was not grooved and there was
absolutely no question of any identifiable marking coming on the pellets to enable the expert to give any opinion
whatsoever. Reliance was placed by him on the observations of this Court in Ram Avtar and Ors. v. Ram Dhani and
Ors. MANU/SC/0034/1997 : AIR1997SC107 wherein this Court relied on the opinion of J.S. Hatcher in his text book
of Fire Arms & Investigation to the effect that "unless there were rifling marks in the bullets which were not defaced by
the entry in the bodies of the victims, no expert can ordinarily and generally give an opinion." It was also pointed out
that in the case of country-made pistol, it was difficult to assume that the ballistic expert could have found identifying
marks on the pellets. The evidence given by the ballistic expert was questioned in great detail. He was cross-examined
extensively by counsel for all the accused. He deposed in the cross-examination that when these pellets are fired, then
they among themselves would press each other inside the barrel [on inside parts] their effect could be on one side of
inner side of barrel, they will take special individual mark on them and these marks will be in the form of a line on the
pellets and if the barrel is tight then pellets will be more rubbed, and on more parts, lines will come. If barrel is tight then
half part of the pellets are pressed and the barrel was nicely tight and the witness himself said that in the test-fire which
he did on all of the six pellets good marks of barrel had come. He had also stated that he had taken micro-photograph of
only one pellet and had compared all pellets but he had not made any separate comparative record or photograph.
37. It was argued that micro-photographs were not produced and mere observation by the expert was not sufficient and
that he should have produced these photographs. We do not think that there was any such necessity to produce the
micro photographs when the expert has given convincing reasons to support his opinion. This Court in Ramanathan v.
State of Tamil Nadu MANU/SC/0152/1978 : 1978CriLJ1137 held that the production of such photographs is not
necessary and such a plea was rejected. In paragraph 26, it was held as under :
"It is true that there has been considerable difference of opinion amongst investigators regarding the use of photographs
in a court for the purpose of illustrating the matching of the markings, and while it may be that microscopic
photographs, when taken with due care and in the best of conditions, may enable the evidence to be placed on the
record in a visible form, it cannot be denied that a court would not be justified in rejecting the opinion of an expert who
has examined the markings under the comparison microscope simply for the reason that he has not thought it necessary
to take the photographs. It is therefore not possible for us to reject the evidence of Ramiah (PW 23) who has
categorically stated that he had compared the land and groove markings on the bullets under a comparison microscope,
simply because he did not think it necessary to take the photographs."
38. In the case of the respondent-accused Paltan Mallah, there is overwhelming evidence to prove his complicity in the
crime. The recovery of the country-made pistol at his instance, which is proved to have been used for causing the death
of Shankar Guha Niyogi; and the evidence of the ballistic expert coupled with two extra-judicial confessions made to
PW-105 and PW-124 support the prosecution case fully. There is also prosecution evidence to the effect that the
accused had got accessibility to the weapons and that he was staying at the place of occurrence and doing various jobs. It
is also established that accused Paltan Mallah is involved in other offences relating to fire-arms. Though there is no
direct and convincing evidence against other accused, the case against Paltan Mallah is proved beyond reasonable doubt.
He was acquitted by the High Court on fanciful reasons. The evidence of extra-judicial confessions was rejected without
any valid reasons. The report of the ballistic expert also was not appreciated in the correct perspective by the High
Court. In our view, the Division Bench seriously erred in acquitting the respondent-accused Paltan Mallah.
39. In the result, we reverse the acquittal of the respondent-accused Paltan Mallah. The incident leading to these appeals
had taken place as early as 1991. As there is a long lapse of time, we do not think that the sentence of death imposed
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upon him by the Sessions Court is justified in the circumstances. We set aside the acquittal of respondent-accused Paltan
Mallah and find him guilty of the offence punishable under Section 302 IPC and sentence him to undergo imprisonment
for life.
40. The appeals preferred by the State and also by the Chhatishgarh Mukti Morcha are allowed to the extent indicated
above. All other appeals shall stand dismissed. The acquittal of other accused by the High Court is confirmed.

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MANU/SC/8405/2006
Equivalent Citation: 2006(3)ACR2486(SC), AIR2006SC2872, 2007(2)ALT(Cri)64, 2006CriLJ4050, JT2006(7)SC313,

2007(1)KLJ79, 2006(7)SCALE618, (2006)7SCC188, [2006]Supp(4)SCR450
Appellants: Central Bureau of Investigation

Vs.
Respondent: Shri Ravi Shankar Srivastava, IAS and Anr.
Hon'ble Judges:
Dr. Arijit Pasayat and Altamas Kabir, JJ.
JUDGMENT
Arijit Pasayat, J
1. Central Bureau of Investigation (in short 'CBI') questions legality of the judgment rendered by a learned Single Judge
of the Rajasthan High Court, Jaipur Bench. Respondent No. 1, a member of Indian Administrative Service filed a
petition under Section 482 of the Code of Criminal Procedure, 1973 (in short 'the Code') for quashing the FIR registered
by the appellant alleging commission of offences punishable under Sections 120B, 167, 168, 177A of the Indian Penal
Code, 1860 (in short 'IPC') and Sections 13(2) and 13(1) of the Prevention of Corruption Act, 1988 (in short 'PC Act').
The only ground on which the respondent No. 1 prayed for quashing the FIR is that the CBI had no jurisdiction to
register the FIR under the Delhi Special Police Establishment Act, 1946 (in short the 'Act'). FIR was registered by Shri
Rajiv Sharma, Superintendent of Police, Jaipur at the Police Station, CBI on the information received through some
sources as in regard to certain advertisements involving criminal conspiracy resulting in the commission of offences
noted above.
Respondent No. 1 filed the petition before the High Court questioning legality of the proceedings.
2. With reference to Sections 3, 5 and 6 of the Act, the respondent No. 1 took the stand that the CBI had no jurisdiction
to register the case. In substance the stands were: (a) consent necessary by the concerned State for operation of the Act
had been withdrawn as is evident from the letter dated 26.6.1999 of the Special Officer (Home), Secretary, Department
in response to the letter dated 21.11.1989 written by the Government of India, Department of Personnel and Training,
New Delhi. (b) consent of the State Government which was given in 1956 was extended in 1989 after the PC Act was
promulgated but subsequently the State Government had not considered it appropriate to accord consent to extend
some provisions of the Act to the whole of the State of Rajasthan, (c) though the consent had been given by the State of
Rajasthan in 1956 and extended in 1989, same did not relate to any particular officer to act in terms of the Act and,
therefore, the FIR as lodged had no validity in the eye of law. The High Court accepted the stands. It held that the
consent was earlier given in 1956 and extended in 1989 after the Act was enacted. The same became inoperative after the
State Government refused to accord consent for extending the same provisions of the Act to the whole of Rajasthan. It
was also held that for the authorized officers to function under the Act it was necessary that the officers were required to
be individually notified and a general notification would not suffice.
3. In support of the appeal, learned Counsel for the appellant submitted that the High Court has committed patent
errors in law. First, prayer of the respondent No. 1 could not have been adjudicated in a petition instituted under Section
482 of the Code. Secondly, the High Court has lost sight of the fact that the notification issued under Section 5 of the
Act had not been rescinded or revoked at any point of time. Further an inter departmental communication has been
treated as a notification to hold that the State Government had not extended the notification. The authority of the
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person who wrote that letter has not been established. In any event, the same cannot be treated to be one covered under
Article 166 of the Constitution of India, 1950 (in short 'the Constitution'). Thirdly, there was no specific order required
in respect of each officer as has been held in various decision of this Court.
In response, learned Counsel for the respondent No. 1 submitted that when the proceeding itself was void ab initio the
High Court was justified in quashing the FIR. Further, there is no material on record to show that the consent which
was given in 1956 and extended in 1989 was intended to be continued.
4. The rival contentions need careful consideration.
Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section
does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before
the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised,
namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise
secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the
exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may
possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for
proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the
section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal
possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do
the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit,
conceder videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without
which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or
revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution
and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex
debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court
exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court
has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in
injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if
it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings
would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the
question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the
complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
5. In R.P. Kapur v. State of Punjab MANU/SC/0086/1960 : 1960CriLJ1239 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.
6. 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
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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 MANU/SC/0115/1992 : 1992CriLJ527 . A note of caution was, however, added that the
power should be exercised sparingly and that too in rarest of rare cases. The illustrative categories indicated by this Court
are as follows:
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value
and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not
disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except
under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the
same do not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence,
no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2)
of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which
no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (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 Act concerned, 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.
7. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very
plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of
this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution.
The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case
where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before
the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective
without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court
will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See: Janata Dal v. H.S. Chowdhary
MANU/SC/0532/1992 : 1993CriLJ600 , and Raghubir Saran (Dr.) v. State of Bihar MANU/SC/0061/1963 :
1964CriLJ1 . It would not be proper for the High Court to analyse the case of the complainant in the light of all
probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a
conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude
that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers
to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous,
vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has
been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under
Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the
trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it
appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the
ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide,
frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an
information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of
secondary importance. It is the material collected during the investigation and evidence led in court which decides the
fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by
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themselves be the basis for quashing the proceedings. (See: Dhanalakshmi v. R. Prasanna Kumar
MANU/SC/0159/1989 , State of Bihar v. P.P. Sharma AIR 1996 SC 309, Rupan Deol Bajaj v. Kanwar Pal Singh Gill
MANU/SC/0080/1996 : 1996CriLJ381 , State of Kerala v. O.C. Kuttan MANU/SC/0119/1999 : 1999CriLJ1623 , State
of U.P. v. O.P. Sharma MANU/SC/0778/1996 : 1996CriLJ1878 , Rashmi Kumar v. Mahesh Kumar Bhada
MANU/SC/1052/1997 : (1997)2SCC397 , Satvinder Kaur v. State (Govt. of NCT of Delhi) MANU/SC/0632/1999 :
AIR1999SC3596 , Rajesh Bajaj v. State NCT of Delhi MANU/SC/0155/1999 : 1999CriLJ1833 and in State of
Karnataka v. M. Devendrappa and Anr. MANU/SC/0027/2002 : 2002CriLJ998 .
8. Coming to the question as to whether specific order in respect of each of the officer, the position is no longer res
integra. In Central Bureau of Investigation v. State of Rajasthan and Ors. MANU/SC/0605/1996 : 1996CriLJ3480 it
was held as follows:
21. On a careful consideration of the facts and circumstances of the case and submissions made by the learned Counsel
for the parties, it appears to us that under Section 3 of DSPE Act, the Central Government may, by notification, specify
the offences which are to be investigated by the members of DSPE. It is not disputed that notification under Section 3
of DSPE Act has been issued by the Central Government specifying the offences under FERA to be investigated by the
members of DSPE. It is also not in dispute that a notification dated October 26, 1977 by the Government of India,
Ministry of Home Affairs, Department of Personnel and Administrative Reforms, has been issued in exercise of the
powers conferred by Sub-section (1) of Section 5 read with Section 6 of DSPE Act. By the said notification the Central
Government, with consent of the various State Governments as mentioned in the said notification including the State
Government of Rajasthan, has extended the powers and jurisdiction of the members of DSPE, inter alia, to the State of
Rajasthan for the investigation of the offences specified in the Schedule to the said notification. In the schedule under
Clause (a), offences punishable under the FERA and under Clause (b) attempts, abatements and conspiracies in relation
to or in connection with any offence mentioned in Clause (a) and any other offence committed in the course of the same
transaction arising out of the same facts have been mentioned.
22. It is, however, to be noted that under Section 2 of DSPE Act, the Central Government has been empowered to
constitute a special police force to be called the DSPE for the investigation in any Union Territory of offences notified
under Section 3. Under Section 5(1) of DSPE Act the Central Government may by order extend to any area including
Railway areas in a State, not being Union Territory, the powers and jurisdiction of the members of the DSPE for the
investigation of any of the offences or classes of offences specified in a notification under Section 3, Under Section 5(2),
when by an order under Sub-section (1), the powers and jurisdiction of the members of the said police establishment are
extended to any such area, a member thereof may, subject to any order which the Central Government may make in this
behalf, discharge the functions of a police officer in that area and shall, while so discharging such functions, be deemed
to be a member of a police Force of that area and be vested with the powers, functions and privileges and be subject to
the liabilities of a police officer belonging to that police force.
23. It is quite evident that members of DSPE are members of special police force constituted under Section 2 of DSPE
Act by the Central Government. The question that arises for decision in this case is whether or not a member of DSPE,
which is also a member of special police force constituted by the Central Government, even if authorised under Section
3 and Section 5 of DSPE Act to investigate in respect of offences under FERA in a particular state other than the Union
Territory, with the consent of such State Government, can investigate the offences for violation of FERA, more so,
when the offence is alleged to have been committed outside indian Territory. It will be apposite at this stage to refer to
the provisions of Sections 3, 4 and 5 of FERA:
Section 3: Classes of Officers of Enforcement -
There shall be the following classes of officers of Enforcement, namely:
(a) Directors of Enforcement:
(b) Additional Directors of Enforcement;
(c) Deputy Directors of Enforcement;

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(d) Assistant Directors of Enforcement;
(e) Such other class of officers of Enforcement as may be appointed for the purposes of this Act.
Section 4 - Appointment and powers of officers of enforcement:
(1) The Central Government may appoint such persons as it thinks fit to be officers of enforcement.
(2) Without prejudice to the provisions of Sub-section (1), the Central Government may authorise a Director of
Enforcement or an Additional Director of Enforcement or a Deputy Director of Enforcement or an Assistant Director
of Enforcement to appoint officers of Enforcement below the rank of an Assistant Director of Enforcement.
(3) Subject to such conditions and limitations as the Central Government may impose, an officer of Enforcement may
exercise the powers and discharged the duties conferred or imposed on him under this Act.
Section 5 - Entrustment of functions of Director or other officer of Enforcement:
The Central Government may, by order and subject to such conditions and limitations as it thinks fit to impose,
authorise any officer of customs or any Central Excise Officer or any police officer or any other officer of the Central
Government or a State Government to exercise such of the powers and discharge such of the duties of the Director of
Enforcement or any other officer of Enforcement under this Act as may be specified in the order.
27. In our view, such notifications under Sections 3 and 5 of DSPE Act are necessary for the purpose of exercising
powers by a member of DSPE in respect of offence or offences and in respect of areas outside the Union Territory. It
may however be noted here that by a general notification, members of DSPE may be authorised to exercise power of
investigation in respect of offence or offences and in areas as specified in the notification under Sections 3 and 5. As
already indicated, although officers of Enforcement Directorate are clothed with the powers and duties to enforce
implementation of the provisions of FERA, the Central Government has been authorised to impose on other officers
including a police officer, power and authority to discharge such of the duties and functions as may be specified by it. It
is nobody's case that any notification has been issued under FERA authorising the member of DSPE to discharge the
duties and functions of an officer of Enforcement Directorate. In our view, in the absence of such notification under
FERA, a member of DSPE, despite the aforesaid notifications under Sections 3 and 5 of DSPE Act, cannot be held to
be an officer under FERA and therefore is not competent to investigate into the offences under FERA.
9. Nearly four decades back the position was succinctly stated by this Court in Major E.G. Barsay v. State of Bombay
MANU/SC/0123/1961 : 1961CriLJ828 at para 29 as follows:
It was contended before the High Court and it was repeated before us that the consent should have been given to every
individual member of the Special Police Establishment and that a general consent would not be good consent. We do
not see any force in this argument. Under Section 6 of the Delhi Special Police Establishment Act, no member of the
said Establishment can exercise powers and jurisdiction in any area in a State without the consent of the Government of
that State. That section does not lay down that every member of the said Establishment should be specifically authorized
to exercise jurisdiction in that area, though the State Government can do so. When a State Government can authorize a
single officer to exercise the said jurisdiction, we do not see any legal objection why it could not authorize the entire
force operating in that area belonging to that Establishment to make such investigation. The authorization filed in this
case sufficiently complies with the provisions of Section 6 of the Delhi Special Police Establishment Act, 1946, and there
are no merits in this contention.
10. Coming to the pivotal stand of respondent No. 1, as has been rightly submitted by leaned counsel for the appellant,
there is no notification revoking the earlier notification. The letter on which great emphasis has been laid by the
respondent No. 1 and highlighted by the High Court, the authority to write the letter has not been indicated. It has also
not been established that the person was authorized to take a decision. In any event, the same does not meet
requirements of Article 166 of the Constitution. The letter is not even conceptually a notification. High Court was,
therefore, not justified in holding that there was a notification rescinding earlier notification.

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11. The High Court was not justified in quashing the proceedings instituted on the basis of the FIR lodged. The
impugned judgment of the High Court is set aside. The appeal is allowed.

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MANU/SC/0559/2014
Equivalent Citation: AIR2014SC2756, (2014)8SCC273
Criminal Appeal No. 1277 of 2014 (Arising out of Special Leave Petition (Crl.) No. 9127 of 2013)
Appellants: Arnesh Kumar

Vs.
Respondent: State of Bihar*
Hon'bleJudges/Coram:
C.K. Prasad and Pinaki Chandra Ghose, JJ.
JUDGMENT
C.K. Prasad, J.
1. The Petitioner apprehends his arrest in a case Under Section 498-A of the Indian Penal Code, 1860 (hereinafter called
as Indian Penal Code) and Section 4 of the Dowry Prohibition Act, 1961. The maximum sentence provided Under
Section 498-A Indian Penal Code is imprisonment for a term which may extend to three years and fine whereas the
maximum sentence provided Under Section 4 of the Dowry Prohibition Act is two years and with fine.
2. Petitioner happens to be the husband of Respondent No. 2 Sweta Kiran. The marriage between them was solemnized
on 1st July, 2007. His attempt to secure anticipatory bail has failed and hence he has knocked the door of this Court by
way of this Special Leave Petition.
3. Leave granted.
4. In sum and substance, allegation levelled by the wife against the Appellant is that demand of Rupees eight lacs, a
maruti car, an air-conditioner, television set etc. was made by her mother-in-law and father-in-law and when this fact was
brought to the Appellant's notice, he supported his mother and threatened to marry another woman. It has been alleged
that she was driven out of the matrimonial home due to non-fulfilment of the demand of dowry.
5. Denying these allegations, the Appellant preferred an application for anticipatory bail which was earlier rejected by the
learned Sessions Judge and thereafter by the High Court.
6. There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in
this country. Section 498-A of the Indian Penal Code was introduced with avowed object to combat the menace of
harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A is a cognizable and
non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than
shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this
provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living
abroad for decades are arrested.
"Crime in India 2012 Statistics" published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of
1,97,762 persons all over India during the year 2012 for offence Under Section 498-A of the Indian Penal Code, 9.4%
more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which
depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total
persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed
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under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting
in cases Under Section 498A, Indian Penal Code is as high as 93.6%, while the conviction rate is only 15%, which is
lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are
likely to result in acquittal.
7. Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a
battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and
embodied in the Code of Criminal Procedure. It has not come out of its colonial image despite six decades of
independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public.
The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not
yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it.
Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and
then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with
oblique motive.
8. Law Commissions, Police Commissions and this Court in a large number of judgments emphasized the need to
maintain a balance between individual liberty and societal order while exercising the power of arrest. Police officers make
arrest as they believe that they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts
scars forever, we feel differently. We believe that no arrest should be made only because the offence is non-bailable and
cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the
justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify
the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made
against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable
satisfaction reached after some investigation as to the genuineness of the allegation. Despite this legal position, the
Legislature did not find any improvement. Numbers of arrest have not decreased. Ultimately, the Parliament had to
intervene and on the recommendation of the 177th Report of the Law Commission submitted in the year 2001, Section
41 of the Code of Criminal Procedure (for short 'Code of Criminal Procedure), in the present form came to be enacted.
It is interesting to note that such a recommendation was made by the Law Commission in its 152 nd and 154th Report
submitted as back in the year 1994. The value of the proportionality permeates the amendment relating to arrest. As the
offence with which we are concerned in the present appeal, provides for a maximum punishment of imprisonment
which may extend to seven years and fine, Section 41(1)(b), Code of Criminal Procedure which is relevant for the
purpose reads as follows:
41. When police may arrest without warrant.-(1) Any police officer may without an order from a Magistrate and
without a warrant, arrest any person -
(a) x x x x x x
(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable
suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less
than seven years or which may extend to seven years whether with or without fine, if the following conditions are
satisfied, namely:
(i) x x x x x
(ii) the police officer is satisfied that such arrest is necessary -
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any
manner; or

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(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of
the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police
officer shall record while making such arrest, his reasons in writing:
Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this
Sub-section, record the reasons in writing for not making the arrest.
xxxxxx
From a plain reading of the aforesaid provision, it is evident that a person accused of offence punishable with
imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine,
cannot be arrested by the police officer only on its satisfaction that such person had committed the offence punishable
as aforesaid. Police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent
such person from committing any further offence; or for proper investigation of the case; or to prevent the accused
from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent
such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such
facts to the Court or the police officer; or unless such accused person is arrested, his presence in the court whenever
required cannot be ensured. These are the conclusions, which one may reach based on facts.
Law mandates the police officer to state the facts and record the reasons in writing which led him to come to a
conclusion covered by any of the provisions aforesaid, while making such arrest. Law further requires the police officers
to record the reasons in writing for not making the arrest. In pith and core, the police office before arrest must put a
question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only
after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest
needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of
information and material that the accused has committed the offence. Apart from this, the police officer has to be
satisfied further that the arrest is necessary for one or the more purposes envisaged by Sub-clauses (a) to (e) of Clause (1)
of Section 41 of Code of Criminal Procedure.
9. An accused arrested without warrant by the police has the constitutional right Under Article 22(2) of the Constitution
of India and Section 57, Code of Criminal Procedure to be produced before the Magistrate without unnecessary delay
and in no circumstances beyond 24 hours excluding the time necessary for the journey. During the course of
investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorised by
the Magistrate in exercise of power Under Section 167 Code of Criminal Procedure. The power to authorise detention is
a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and
caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is
authorised in a routine, casual and cavalier manner. Before a Magistrate authorises detention Under Section 167, Code of
Criminal Procedure, he has to be first satisfied that the arrest made is legal and in accordance with law and all the
constitutional rights of the person arrested is satisfied. If the arrest effected by the police officer does not satisfy the
requirements of Section 41 of the Code, Magistrate is duty bound not to authorise his further detention and release the
accused. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is
required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be
satisfied that condition precedent for arrest Under Section 41 Code of Criminal Procedure has been satisfied and it is
only thereafter that he will authorise the detention of an accused. The Magistrate before authorising detention will record
its own satisfaction, may be in brief but the said satisfaction must reflect from its order. It shall never be based upon the
ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such
person from committing any further offence or for proper investigation of the case or for preventing an accused from
tampering with evidence or making inducement etc., the police officer shall furnish to the Magistrate the facts, the
reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the
Magistrate while authorising the detention and only after recording its satisfaction in writing that the Magistrate will
authorise the detention of the accused. In fine, when a suspect is arrested and produced before a Magistrate for
authorising detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest

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and if so, prima facie those reasons are relevant and secondly a reasonable conclusion could at all be reached by the
police officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make
judicial scrutiny.
10. Another provision i.e. Section 41A Code of Criminal Procedure aimed to avoid unnecessary arrest or threat of arrest
looming large on accused requires to be vitalised. Section 41A as inserted by Section 6 of the Code of Criminal
Procedure (Amendment) Act, 2008 (Act 5 of 2009), which is relevant in the context reads as follows:
41A. Notice of appearance before police officer.-(1) The police officer shall, in all cases where the arrest of a person is
not required under the provisions of Sub-section (1) of Section 41, issue a notice directing the person against whom a
reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he
has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the
notice.
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the
offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to
be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the
police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for
the offence mentioned in the notice.
11. Aforesaid provision makes it clear that in all cases where the arrest of a person is not required Under Section 41(1),
Code of Criminal Procedure, the police officer is required to issue notice directing the accused to appear before him at a
specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if
such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police
office is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged
Under Section 41 Code of Criminal Procedure has to be complied and shall be subject to the same scrutiny by the
Magistrate as aforesaid.
12. We are of the opinion that if the provisions of Section 41, Code of Criminal Procedure which authorises the police
officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the
wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which
come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of
mechanically reproducing in the case diary all or most of the reasons contained in Section 41 Code of Criminal
Procedure for effecting arrest be discouraged and discontinued.
13. 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 Indian Penal Code is registered but to satisfy themselves about the necessity for arrest under the parameters laid
down above flowing from Section 41, Code of Criminal Procedure;
(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;
Page 154
(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;
(6) Notice of appearance in terms of Section 41A of Code of Criminal Procedure 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.
14. We hasten to add that the directions aforesaid shall not only apply to the cases Under Section 498-A of the Indian
Penal Code 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.
15. We direct that a copy of this judgment be forwarded to the Chief Secretaries as also the Director Generals of Police
of all the State Governments and the Union Territories and the Registrar General of all the High Courts for onward
transmission and ensuring its compliance.
16. By order dated 31st of October, 2013, this Court had granted provisional bail to the Appellant on certain conditions.
We make this order absolute.
17. In the result, we allow this appeal, making our aforesaid order dated 31 st October, 2013 absolute; with the directions
aforesaid.

Page 155
MANU/SC/1166/2013
EquivalentCitation: 2013XII AD (S.C.) 209, AIR2014SC187, 2014 (1) ALD(Crl.) 159 (SC), 2014 (84) ALLCC 719,
2013ALLMR(Cri)4444, 2013ALLMR(Cri)4444(SC), 2014 (1) ALT (Crl.) 100 (A.P.), 2013BomCR(Cri)680,
2013(4)BomCR(Cri)680, 2014(2) CHN (SC) 7, 2014CriLJ470, 2013(6)CTC353, 2014(2)GLT(SC)1, 2013(4)J.L.J.R.505,
2014(1)JCC1, JT2013(14)SC399, 2014(2)KCCR1305, 2013 (4) KHC 552, 2013(4)KLJ686, 2013(4)KLT632(SC), 2014-1-
LW(Crl)1, 2013(4)MLJ(Crl)579, 2013(5)MPHT336(SC), 2014(1)N.C.C.161, 2014(I)OLR5, 2013(4)PLJR504,
2013(4)RCR(Criminal)979, 2013(13)SCALE559, (2014)2SCC1, 2014 (1) SCJ 68, 2013(3)UC2017
Appellants: Lalita Kumari

Vs.
Respondent: Govt. of U.P. and Ors.
P. Sathasivam, C.J.I., Balbir Singh Chauhan, Ranjana Prakash Desai, Ranjan Gogoi and Sharad Arvind Bobde,
JJ.
JUDGMENT
P. Sathasivam, C.J.I.
1. The important issue which arises for consideration in the referred matter is whether "a police officer is bound to
register a First Information Report (FIR) upon receiving any information relating to commission of a cognizable offence
under Section 154 of the Code of Criminal Procedure, 1973 (in short 'the Code') or the police officer has the power to
conduct a "preliminary inquiry" in order to test the veracity of such information before registering the same?"
2. The present writ petition, under Article 32 of the Constitution, has been filed by one Lalita Kumari (minor) through
her father, viz., Shri Bhola Kamat for the issuance of a writ of Habeas Corpus or direction(s) of like nature against the
Respondents herein for the protection of his minor daughter who has been kidnapped. The grievance in the said writ
petition is that on 11.05.2008, a written report was submitted by the Petitioner before the officer in-charge of the police
station concerned who did not take any action on the same. Thereafter, when the Superintendent of Police was moved,
an FIR was registered. According to the Petitioner, even thereafter, steps were not taken either for apprehending the
accused or for the recovery of the minor girl child.
3. A two-Judge Bench of this Court in, Lalita Kumari v. Government of Uttar Pradesh and Ors. (2008) 7 SCC 164, after
noticing the disparity in registration of FIRs by police officers on case to case basis across the country, issued notice to
the Union of India, the Chief Secretaries of all the States and Union Territories and Director Generals of
Police/Commissioners of Police to the effect that if steps are not taken for registration of FIRs immediately and the
copies thereof are not handed over to the complainants, they may move the Magistrates concerned by filing complaint
petitions for appropriate direction(s) to the police to register the case immediately and for apprehending the accused
persons, failing which, contempt proceedings must be initiated against such delinquent police officers if no sufficient
cause is shown.
4. Pursuant to the above directions, when the matter was heard by the very same Bench in Lalita Kumari v. Government of
Uttar Pradesh and Ors. (2008) 14 SCC 337, Mr. S.B. Upadhyay, learned senior counsel for the Petitioner, projected his
claim that upon receipt of information by a police officer in-charge of a police station disclosing a cognizable offence, it
is imperative for him to register a case under Section 154 of the Code and placed reliance upon two-Judge Bench
decisions of this Court in State of Haryana v. Bhajan Lal MANU/SC/0115/1992 : 1992 Supp. (1) SCC 335, Ramesh Kumari
v. State (NCT of Delhi) MANU/SC/8037/2006 : (2006) 2 SCC 677 and Parkash Singh Badal v. State of Punjab
MANU/SC/5415/2006 : (2007) 1 SCC 1. On the other hand, Mr. Shekhar Naphade, learned senior Counsel for the
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State of Maharashtra submitted that an officer in-charge of a police station is not obliged under law, upon receipt of
information disclosing commission of a cognizable offence, to register a case rather the discretion lies with him, in
appropriate cases, to hold some sort of preliminary inquiry in relation to the veracity or otherwise of the accusations
made in the report. In support of his submission, he placed reliance upon two-Judge Bench decisions of this Court in P.
Sirajuddin v. State of Madras MANU/SC/0158/1970 : (1970) 1 SCC 595, Sevi v. State of Tamil Nadu
MANU/SC/0218/1981 : 1981 Supp SCC 43, Shashikant v. Central Bureau of Investigation MANU/SC/8639/2006 : (2007)
1 SCC 630, and Rajinder Singh Katoch v. Chandigarh Admn. MANU/SC/8052/2007 : (2007) 10 SCC 69. In view of the
conflicting decisions of this Court on the issue, the said bench, vide order dated 16.09.2008, referred the same to a larger
bench.
5. Ensuing compliance to the above direction, the matter pertaining to Lalita Kumari was heard by a Bench of three-
Judges in Lalita Kumari v. Government of Uttar Pradesh and Ors. MANU/SC/0157/2012 : (2012) 4 SCC 1 wherein, this
Court, after hearing various counsel representing Union of India, States and Union Territories and also after adverting to
all the conflicting decisions extensively, referred the matter to a Constitution Bench while concluding as under:
97. We have carefully analysed various judgments delivered by this Court in the last several decades. We clearly discern
divergent judicial opinions of this Court on the main issue: whether under Section 154 Code of Criminal Procedure, a
police officer is bound to register an FIR when a cognizable offence is made out or he (police officer) has an option,
discretion or latitude of conducting some kind of preliminary inquiry before registering the FIR.
98. The learned Counsel appearing for the Union of India and different States have expressed totally divergent views
even before this Court. This Court also carved out a special category in the case of medical doctors in the
aforementioned cases of Santosh Kumar and Suresh Gupta where preliminary inquiry had been postulated before registering
an FIR. Some counsel also submitted that the CBI Manual also envisages some kind of preliminary inquiry before
registering the FIR.
99. The issue which has arisen for consideration in these cases is of great public importance. In view of the divergent
opinions in a large number of cases decided by this Court, it has become extremely important to have a clear enunciation
of law and adjudication by a larger Bench of this Court for the benefit of all concerned--the courts, the investigating
agencies and the citizens.
100. Consequently, we request the Hon'ble the Chief Justice to refer these matters to a Constitution Bench of at least
five Judges of this Court for an authoritative judgment.
6. Therefore, the only question before this Constitution Bench relates to the interpretation of Section 154 of the Code
and incidentally to consider Sections 156 and 157 also.
7. Heard Mr. S.B. Upadhyay, learned senior counsel for the Petitioner, Mr. K.V. Vishwanathan, learned Additional
Solicitor General for the Union of India, Mr. Sidharth Luthra, learned Additional Solicitor General for the State of
Chhattisgarh, Mr. Shekhar Naphade, Mr. R.K. Dash, Ms. Vibha Datta Makhija, learned senior counsel for the State of
Maharashtra, U.P. and M.P. respectively, Mr. G. Sivabalamurugan, learned Counsel for the accused, Dr. Ashok Dhamija,
learned Counsel for the CBI, Mr. Kalyan Bandopodhya, learned senior counsel for the State of West Bengal, Dr. Manish
Singhvi, learned AAG for the State of Rajasthan and Mr. Sudarshan Singh Rawat.
8. In order to answer the main issue posed before this Bench, it is useful to refer the following Sections of the Code:
154. Information in cognizable cases.-- (1) Every information relating to the commission of a cognizable offence, if
given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be
read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall
be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such
form as the State Government may prescribe in this behalf.
(2) A copy of the information as recorded under Sub-section (1) shall be given forthwith, free of cost, to the informant.

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(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information
referred to in Sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent
of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either
investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner
provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation
to that offence.
156. Police officer's power to investigate cognizable case. (1) Any officer in charge of a police station may, without the
order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the
limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case
was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned.
157. Procedure for investigation: (1) If, from information received or otherwise, an officer in charge of a police station
has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall
forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report
and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State
Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts
and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender:
Provided that-
(a) when information as to the commission of any such offence is given against any person by name and the case is not
of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to
make an investigation on the spot;
(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an
investigation, he shall not investigate the case.
Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the
residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence
of her parents or guardian or near relatives or social worker of the locality.
(2) In each of the cases mentioned in Clauses (a) and (b) of the proviso to Sub-section (1), the officer in charge of the
police station shall state in his report his reasons for not fully complying with the requirements of that subsection, and,
in the case mentioned in Clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in
such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to
be investigated.
Contentions:
9. At the foremost, Mr. S.B. Upadhyay, learned senior counsel, while explaining the conditions mentioned in Section 154
submitted that Section 154(1) is mandatory as the use of the word 'shall' is indicative of the statutory intent of the
legislature. He also contended that there is no discretion left to the police officer except to register an FIR. In support of
the above proposition, he relied on the following decisions, viz., B. Premanand and Ors. v. Mohan Koikal and Ors.
MANU/SC/0249/2011 : (2011) 4 SCC 266, M/s. Hiralal Rattanlal Etc. Etc. v. State of U.P. and Anr. Etc. Etc.
MANU/SC/0553/1972 : (1973) 1 SCC 216 and Govindlal Chhaganlal Patel v. Agricultural Produce Market Committee, Godhra
and Ors. MANU/SC/0125/1975 : (1975) 2 SCC 482.
10. Mr. Upadhyay, by further drawing our attention to the language used in Section 154(1) of the Code, contended that it
merely mentions 'information' without prefixing the words 'reasonable' or 'credible'. In order to substantiate this claim,
Page 158
he relied on the following decisions, viz., Bhajan Lal (supra), Ganesh Bhavan Patel and Anr. v. State of Maharashtra
MANU/SC/0083/1978 : (1978) 4 SCC 371, Aleque Padamsee and Ors. v. Union of India and Ors. MANU/SC/2975/2007 :
(2007) 6 SCC 171, Ramesh Kumari (supra), Ram Lal Narang v. State (Delhi Administration) MANU/SC/0216/1979 : (1979) 2
SCC 322 and Lallan Chaudhary and Ors. v. State of Bihar and Anr. MANU/SC/4524/2006 : (2006) 12 SCC 229. Besides, he
also brought to light various adverse impacts of allowing police officers to hold preliminary inquiry before registering an
FIR.
11. Mr. K.V. Viswanathan, learned Additional Solicitor General appearing on behalf of Union of India submitted that in
all the cases where information is received under Section 154 of the Code, it is mandatory for the police to forthwith
enter the same into the register maintained for the said purpose, if the same relates to commission of a cognizable
offence. According to learned ASG, the police authorities have no discretion or authority, whatsoever, to ascertain the
veracity of such information before deciding to register it. He also pointed out that a police officer, who proceeds to the
spot under Sections 156 and 157 of the Code, on the basis of either a cryptic information or source information, or a
rumour etc., has to immediately, on gathering information relating to the commission of a cognizable offence, send a
report (ruqqa) to the police station so that the same can be registered as FIR. He also highlighted the scheme of the
Code relating to the registration of FIR, arrest, various protections provided to the accused and the power of police to
close investigation. In support of his claim, he relied on various decisions of this Court viz., Bhajan Lal (supra), Ramesh
Kumari (supra) and Aleque Padamsee (supra). He also deliberated upon the distinguishable judgments in conflict with the
mandatory proposition, viz., State of Uttar Pradesh v. Bhagwant Kishore Joshi MANU/SC/0066/1963 : (1964) 3 SCR 71, P.
Sirajuddin (supra), Sevi (supra), Shashikant (supra), Rajinder Singh Katoch (supra), Jacob Mathew v. State of Punjab and Anr.
MANU/SC/0457/2005 : (2005) 6 SCC 1. He concluded his arguments by saying that if any information disclosing a
cognizable offence is led before an officer in-charge of a police station satisfying the requirements of Section 154(1) of
the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is
to say, to register a case on the basis of such information. Further, he emphasized upon various safeguards provided
under the Code against filing a false case.
12. Dr. Ashok Dhamija, learned Counsel for the CBI, submitted that the use of the word "shall" under Section 154(1) of
the Code clearly mandates that if the information given to a police officer relates to the commission of a cognizable
offence, then it is mandatory for him to register the offence. According to learned Counsel, in such circumstances, there
is no option or discretion given to the police. He further contended that the word "shall" clearly implies a mandate and
is unmistakably indicative of the statutory intent. What is necessary, according to him, is only that the information given
to the police must disclose commission of a cognizable offence. He also contended that Section 154 of the Code uses
the word "information" simpliciter and does not use the qualified words such as "credible information" or "reasonable
complaint". Thus, the intention of the Parliament is unequivocally clear from the language employed that a mere
information relating to commission of a cognizable offence is sufficient to register an FIR. He also relied on Bhajan Lal
(supra), Ramesh Kumari (supra), Aleque Padamsee (supra), Lallan Chaudhary (supra), Superintendent of Police, CBI v. Tapan Kumar
Singh MANU/SC/0299/2003 : (2003) 6 SCC 175, M/s. Hiralal Rattanlal (supra), B. Premanand (supra), Khub Chand v. State of
Rajasthan MANU/SC/0015/1966 : AIR 1967 SC 1074, P. Sirajuddin (supra), Rajinder Singh Katoch (supra), Bhagwant Kishore
Joshi (supra), State of West Bengal v. Committee for Protection of Democratic Rights, West Bengal MANU/SC/0121/2010 : (2010) 3
SCC 571. He also pointed out various safeguards provided in the Code against filing a false case. In the end, he
concluded by reiterating that 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. Further, he
also clarified that the preliminary inquiry conducted by the CBI, under certain situations, as provided under the CBI
Crime Manual, stands on a different footing due to the special provisions relating to the CBI contained in the Delhi
Special Police Establishment Act, 1946, which is saved under Sections 4(2) and 5 of the Code.
13. Mr. Kalyan Bandopadhyay, learned senior Counsel appearing on behalf of the State of West Bengal, submitted that
whenever any information relating to commission of a cognizable offence is received, it is the duty of the officer in-
charge of a police station to record the same and a copy of such information, shall be given forthwith, free of cost, to
the informant under Section 154(2) of the Code. According to him, a police officer has no other alternative but to
record the information in relation to a cognizable offence in the first instance. He also highlighted various subsequent
steps to be followed by the police officer pursuant to the registration of an FIR. With regard to the scope of Section 154
of the Code, he relied on H.N. Rishbud and Inder Singh v. State of Delhi MANU/SC/0049/1954 : AIR 1955 SC 196, Bhajan
Lal (supra), S.N. Sharma v. Bipen Kumar Tiwari MANU/SC/0182/1970 : (1970) 1 SCC 653, Union of India v. Prakash P.
Hinduja MANU/SC/0446/2003 : (2003) 6 SCC 195, Sheikh Hasib alias Tabarak v. State of Bihar MANU/SC/0180/1971 :
(1972) 4 SCC 773, Shashikant (supra), Ashok Kumar Todi v. Kishwar Jahan and Ors. MANU/SC/0162/2011 : (2011) 3 SCC

Page 159
758, Padma Sundara Rao (Dead) and Ors. v. State of T.N. and Ors. MANU/SC/0182/2002 : (2002) 3 SCC 533, P. Sirajuddin
(supra), Rajinder Singh Katoch (supra), Bhagwant Kishore Joshi (supra) and Mannalal Khatic v. The State MANU/WB/0117/1967 :
AIR 1967 Cal 478.
14. Dr. Manish Singhvi, learned Additional Advocate General for the State of Rajasthan, submitted that Section 154(1)
of the Code mandates compulsory registration of FIR. He also highlighted various safeguards inbuilt in the Code for
lodging of false FIRs. He also pointed out that the only exception relates to cases arising under the Prevention of
Corruption Act as, in those cases, sanction is necessary before taking cognizance by the Magistrates and the public
servants are accorded some kind of protection so that vexatious cases cannot be filed to harass them.
15. Mr. G. Sivabalamurugan, learned Counsel for the Appellant in Criminal Appeal No. 1410 of 2011, after tracing the
earlier history, viz., the relevant provisions in the Code of Criminal Procedure of 1861, 1872, 1882 and 1898 stressed as
to why the compulsory registration of FIR is mandatory. He also highlighted the recommendations of the Report of the
41st Law Commission and insertion of Section 13 of the Criminal Law (Amendment) Act, 2013 with effect from
03.02.2013.
16. Mr. R.K. Dash, learned senior counsel appearing for the State of Uttar Pradesh, though initially commenced his
arguments by asserting that in order to check unnecessary harassment to innocent persons at the behest of unscrupulous
complainants, it is desirable that a preliminary inquiry into the allegations should precede with the registration of FIR but
subsequently after considering the salient features of the Code, various provisions like Sections 2(4)(h), 156(1), 202(1),
164, various provisions from the U.P. Police Regulations, learned senior counsel contended that in no case recording of
FIR should be deferred till verification of its truth or otherwise in case of information relating to a cognizable offence.
In addition to the same, he also relied on various pronouncements of this Court, such as, Mohindro v. State of Punjab
MANU/SC/1010/2001 : (2001) 9 SCC 581, Ramesh Kumari (supra), Bhajan Lal (supra), Parkash Singh Badal (supra), Munna
Lal v. State of Himachal Pradesh MANU/HP/0033/1991 : 1992 Crl. L.J. 1558, Giridhari Lal Kanak v. State and Ors.
MANU/MP/0620/2001 : 2002 Crl. L.J. 2113 and Katteri Moideen Kutty Haji v. State of Kerala MANU/KE/0071/2002 :
2002 (2) Crimes 143. Finally, he concluded that when the statutory provisions, as envisaged in Chapter XII of the Code,
are clear and unambiguous, it would not be legally permissible to allow the police to make a preliminary inquiry into the
allegations before registering an FIR under Section 154 of the Code.
17. Mr. Sidharth Luthra, learned Additional Solicitor General appearing for the State of Chhattisgarh, commenced his
arguments by emphasizing the scope of reference before the Constitution Bench. Subsequently, he elaborated on various
judgments which held that an investigating officer, on receiving information of commission of a cognizable offence
under Section 154 of the Code, has power to conduct preliminary inquiry before registration of FIR, viz., Bhagwant
Kishore Joshi (supra), P. Sirajuddin (supra), Sevi (supra) and Rajinder Singh Katoch (supra). Concurrently, he also brought to our
notice the following decisions, viz., Bhajan Lal (supra), Ramesh Kumari (supra), Parkash Singh Badal (supra), and Aleque
Padamsee (supra), which held that a police officer is duty bound to register an FIR, upon receipt of information disclosing
commission of a cognizable offence and the power of preliminary inquiry does not exist under the mandate of Section
154. Learned ASG has put forth a comparative analysis of Section 154 of the Code of Criminal Procedure of 1898 and
of 1973. He also highlighted that every activity which occurs in a police station [Section 2(s)] is entered in a diary
maintained at the police station which may be called as the General Diary, Station Diary or Daily Diary. He underlined
the relevance of General Diary by referring to various judicial decisions such as Tapan Kumar Singh (supra), Re:
Subbaratnam and Ors. AIR 1949 Madras 663. He further pointed out that, presently, throughout the country, in
matrimonial, commercial, medical negligence and corruption related offences, there exist provisions for conducting an
inquiry or preliminary inquiry by the police, without/before registering an FIR under Section 154 of the Code. He also
brought to our notice various police rules prevailing in the States of Punjab, Rajasthan, U.P., Madhya Pradesh, Kolkata,
Bombay, etc., for conducting an inquiry before registering an FIR. Besides, he also attempted to draw an inference from
the Crime Manual of the CBI to highlight that a preliminary inquiry before registering a case is permissible and legitimate
in the eyes of law. Adverting to the above contentions, he concluded by pleading that preliminary inquiry before
registration of an FIR should be held permissible. Further, he emphasized that the power to carry out an inquiry or
preliminary inquiry by the police, which precedes the registration of FIR will eliminate the misuse of the process, as the
registration of FIR serves as an impediment against a person for various important activities like applying for a job or a
passport, etc. Learned ASG further requested this Court to frame guidelines for certain category of cases in which
preliminary inquiry should be made.

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18. Mr. Shekhar Naphade, learned senior counsel appearing on behalf of the State of Maharashtra, submitted that
ordinarily the Station House Officer (SHO) should record an FIR upon receiving a complaint disclosing the ingredients
of a cognizable offence, but in certain situations, in case of doubt about the correctness or credibility of the information,
he should have the discretion of holding a preliminary inquiry and thereafter, if he is satisfied that there is a prima facie
case for investigation, register the FIR. A mandatory duty of registering FIR should not be cast upon him. According to
him, this interpretation would harmonize two extreme positions, viz., the proposition that the moment the complaint
disclosing ingredients of a cognizable offence is lodged, the police officer must register an FIR without any scrutiny
whatsoever is an extreme proposition and is contrary to the mandate of Article 21 of the Constitution of India, similarly,
the other extreme point of view is that the police officer must investigate the case substantially before registering an FIR.
Accordingly, he pointed out that both must be rejected and a middle path must be chosen. He also submitted the
following judgments, viz., Bhajan Lal (supra), Ramesh Kumari (supra), Parkash Singh Badal (supra), and Aleque Padamsee (supra)
wherein it has been held that if a complaint alleging commission of a cognizable offence is received in the police station,
then the SHO has no other option but to register an FIR under Section 154 of the Code. According to learned senior
counsel, these verdicts require reconsideration as they have interpreted Section 154 de hors the other provisions of the
Code and have failed to consider the impact of Article 21 on Section 154 of the Code.
19. Alongside, he pointed out the following decisions, viz., Rajinder Singh Katoch (supra), P. Sirajuddin (supra), Bhagwant
Kishore Joshi (supra) and Sevi (supra), which hold that before registering an FIR under Section 154 of the Code, it is open to
the police officer to hold a preliminary inquiry to ascertain whether there is a prima facie case of commission of a
cognizable offence or not. According to learned senior counsel, Section 154 of the Code forms part of a chain of
statutory provisions relating to investigation and, therefore, the scheme of provisions of Sections 41, 157, 167, 169, etc.,
must have a bearing on the interpretation of Section 154. In addition, he emphasized that giving a literal interpretation
would reduce the registration of FIR to a mechanical act. Parallelly, he underscored the impact of Article 21 on Section
154 of the Code by referring to Maneka Gandhi v. Union of India MANU/SC/0133/1978 : (1978) 1 SCC 248, wherein this
Court has applied Article 21 to several provisions relating to criminal law. This Court has also stated that the expression
"law" contained in Article 21 necessarily postulates law which is reasonable and not merely statutory provisions
irrespective of its reasonableness or otherwise. Learned senior counsel pleaded that in the light of Article 21, provisions
of Section 154 of the Code must be read down to mean that before registering an FIR, the police officer must be
satisfied that there is a prima facie case for investigation. He also emphasized that Section 154 contains implied power of
the police officer to hold preliminary inquiry if he bona fide possess serious doubts about the credibility of the
information given to him. By pointing out Criminal Law (Amendment) Act, 2013, particularly, Section 166A, Mr.
Naphade contended that as far as other cognizable offences (apart from those mentioned in Section 166A) are
concerned, police has a discretion to hold preliminary inquiry if there is some doubt about the correctness of the
information.
20. In case of allegations relating to medical negligence on the part of the doctors, it is pointed out by drawing our
attention to some of the decisions of this Court viz., Tapan Kumar Singh (supra), Jacob Mathew (supra) etc., that no medical
professional should be prosecuted merely on the basis of the allegations in the complaint. By pointing out various
decisions, Mr. Naphade emphasized that in appropriate cases, it would be proper for a police officer, on receipt of a
complaint of a cognizable offence, to satisfy himself that at least prima facie allegations levelled against the accused in the
complaint are credible. He also contended that no single provision of a statute can be read and interpreted in isolation,
but the statute must be read as a whole. Accordingly, he prayed that the provisions of Sections 41, 57, 156, 157, 159,
167, 190, 200 and 202 of the Code must be read together. He also pointed out that Section 154(3) of the Code enables
any complainant whose complaint is not registered as an FIR by the officer in-charge of the police station to approach
the higher police officer for the purpose of getting his complaint registered as an FIR and in such a case, the higher
police officer has all the powers of recording an FIR and directing investigation into the matter. In addition to the
remedy available to an aggrieved person of approaching higher police officer, he can also move the concerned Magistrate
by making a complaint under Section 190 thereof. He further emphasized that the fact that the legislature has provided
adequate remedies against refusal to register FIR and to hold investigation in cognizable offences, is indicative of
legislative intent that the police officer is not bound to record FIR merely because the ingredients of a cognizable
offence are disclosed in the complaint, if he has doubts about the veracity of the complaint. He also pointed out that the
word "shall" used in the statute does not always mean absence of any discretion in the matter. For the said proposition,
he also highlighted that this Court has preferred the rule of purposive interpretation to the rule of literal interpretation
for which he relied on Chairman Board of Mining Examination and Chief Inspector of Mines and Anr. v. Ramjee
MANU/SC/0061/1977 : (1977) 2 SCC 256, Lalit Mohan Pandey v. Pooran Singh MANU/SC/0422/2004 : (2004) 6 SCC
626, Prativa Bose v. Kumar Rupendra Deb Raikat MANU/SC/0251/1963 : (1964) 4 SCR 69. He further pointed out that it
is impossible to put the provisions of Section 154 of the Code in a straightjacket formula. He also prayed for framing of
Page 161
some guidelines as regards registration or non-registration of FIR. Finally, he pointed out that the requirement of Article
21 is that the procedure should be fair and just. According to him, if the police officer has doubts in the matter, it is
imperative that he should have the discretion of holding a preliminary inquiry in the matter. If he is debarred from
holding such a preliminary inquiry, the procedure would then suffer from the vice of arbitrariness and unreasonableness.
Thus, he concluded his arguments by pleading that Section 154 of the Code must be interpreted in the light of Article
21.
21. Ms. Vibha Datta Makhija, learned senior counsel appearing for the State of Madhya Pradesh submitted that a plain
reading of Section 154 and other provisions of the Code shows that it may not be mandatory but is absolutely obligatory
on the part of the police officer to register an FIR prior to taking any steps or conducting investigation into a cognizable
offence. She further pointed out that after receiving the first information of an offence and prior to the registration of
the said report (whether oral or written) in the First Information Book maintained at the police station under various
State Government Regulations, only some preliminary inquiry or investigative steps are permissible under the statutory
framework of the Code to the extent as is justifiable and is within the window of statutory discretion granted strictly for
the purpose of ascertaining whether there has been a commission or not of a cognizable offence. Hence, an
investigation, culminating into a Final Report under Section 173 of the Code, cannot be called into question and be
quashed due to the reason that a part of the inquiry, investigation or steps taken during investigation are conducted after
receiving the first information but prior to registering the same unless it is found that the said investigation is unfair,
illegal, mala fide and has resulted in grave prejudice to the right of the accused to fair investigation. In support of the
above contentions, she traced the earlier provisions of the Code and current statutory framework, viz., Criminal Law
(Amendment) Act, 2013 with reference to various decisions of this Court. She concluded that Section 154 of the Code
leaves no area of doubt that where a cognizable offence is disclosed, there is no discretion on the part of the police to
record or not to record the said information, however, it may differ from case to case.
22. The issues before the Constitution Bench of this Court arise out of two main conflicting areas of concern, viz.,
(i) Whether the immediate non-registration of FIR leads to scope for manipulation by the police which affects the right
of the victim/complainant to have a complaint immediately investigated upon allegations being made; and
(ii) Whether in cases where the complaint/information does not clearly disclose the commission of a cognizable offence
but the FIR is compulsorily registered then does it infringe the rights of an accused.
Discussion:
23. The FIR is a pertinent document in the criminal law procedure of our country and its main object from the point of
view of the informant is to set the criminal law in motion and from the point of view of the investigating authorities is to
obtain information about the alleged criminal activity so as to be able to take suitable steps to trace and to bring to book
the guilty.
24. Historical experience has thrown up cases from both the sides where the grievance of the victim/informant of non-
registration of valid FIRs as well as that of the accused of being unnecessarily harassed and investigated upon false
charges have been found to be correct.
25. An example of the first category of cases is found in State of Maharashtra v. Sarangdharsingh Shivdassingh Chavan and Anr.
MANU/SC/1055/2010 : (2011) 1 SCC 577 wherein a writ petition was filed challenging the order of the Collector in the
District of Buldhana directing not to register any crime against Mr. Gokulchand Sananda, without obtaining clearance
from the District Anti-Money Lending Committee and the District Government Pleader. From the record, it was
revealed that out of 74 cases, only in seven cases, charge sheets were filed alleging illegal moneylending. This Court
found that upon instructions given by the Chief Minister to the District Collector, there was no registration of FIR of
the poor farmers. In these circumstances, this Court held the said instructions to be ultra vires and quashed the same. It is
argued that cases like above exhibit the mandatory character of Section 154, and if it is held otherwise, it shall lead to
grave injustice.
26. In Aleque Padamsee (supra), while dealing with the issue whether it is within the powers of courts to issue a writ
directing the police to register a First Information Report in a case where it was alleged that the accused had made
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speeches likely to disturb communal harmony, this Court held that "the police officials ought to register the FIR
whenever facts brought to their notice show that a cognizable offence has been made out. In case the police officials fail
to do so, the modalities to be adopted are as set out in Section 190 read with Section 200 of the Code." As such, the
Code itself provides several checks for refusal on the part of the police authorities under Section 154 of the Code.
27. However, on the other hand, there are a number of cases which exhibit that there are instances where the power of
the police to register an FIR and initiate an investigation thereto are misused where a cognizable offence is not made out
from the contents of the complaint. A significant case in this context is the case of Preeti Gupta v. State of Jharkhand
MANU/SC/0592/2010 : (2010) 7 SCC 667 wherein this Court has expressed its anxiety over misuse of Section 498A of
the Indian Penal Code, 1860 (in short 'the Indian Penal Code') with respect to which a large number of frivolous reports
were lodged. This Court expressed its desire that the legislature must take into consideration the informed public
opinion and the pragmatic realities to make necessary changes in law.
28. The above said judgment resulted in the 243rd Report of the Law Commission of India submitted on 30th August,
2012. The Law Commission, in its Report, concluded that though the offence under Section 498A could be made
compoundable, however, the extent of misuse was not established by empirical data, and, thus, could not be a ground to
denude the provision of its efficacy. The Law Commission also observed that the law on the question whether the
registration of FIR could be postponed for a reasonable time is in a state of uncertainty and can be crystallized only
upon this Court putting at rest the present controversy.
29. In order to arrive at a conclusion in the light of divergent views on the point and also to answer the above
contentions, it is pertinent to have a look at the historical background of the Section and corresponding provisions that
existed in the previous enactments of the Code of Criminal Procedure.
Code of Criminal Procedure, 1861
139. Every complaint or information preferred to an officer in charge of a police station, shall be reduced into writing
and the substance thereof shall be entered in a diary to be kept by such officer, in such form as shall be prescribed by the
local government.
112. Every complaint preferred to an officer in charge of a police station, shall be reduced into writing, and shall be
signed, sealed or marked by the person making it; and the substance thereof shall be entered in a book to be kept by
such officer in the form prescribed by the local government.
154. Every information relating to the commission of a cognizable offence if given orally to an officer in charge of a
police station, shall be reduced to writing by him, or under his direction, and be read over to the informant; and every
such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and
the substance thereof shall be entered in a book to be kept by such form as the government may prescribe in this behalf.
154. Every information relating to the commission of a cognizable offence if given orally to an officer in charge of a
police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every
such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and
the substance thereof shall be entered in a book to be kept by such officer in such form as the Government may
prescribe in this behalf.

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154. Information in cognizable cases: 1) Every information relating to the commission of a cognizable offence, it given
orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read
over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be
signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such
form as the State Government may prescribe in this behalf.
[Provided that if the information is given by the woman against whom an offence under Sections 326A, 326B, 354,
354A, 354B, 354C, 354D, 376, 376A, 376B, 376C, 376D, 376E or Section 509 of the Indian Penal Code is alleged to
have been committed or attempted, then such information shall be recorded by a woman police officer or any woman
officer:
Provided further that:
(a) in the event that the person against whom an offence under Sections 354, 354A, 354B, 354C, 354D, 376, 376A,
376B, 376C, 376D, 376E or Section 509 of the Indian Penal code is alleged to have been committed or attempted is
temporarily or permanently mentally or physically disabled then such information shall be recorded by a police officer, at
the residence of the person seeking to report such offence or at a convenient place of such person's choice, in the
presence of an interpreter or a special educator, as the case may be;
(b) the recording of such information shall be videographed;
(c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under Clause (a) of Sub-
section (5A) of Section 164 as soon as possible.]
(Inserted by Section 13 of 'The Criminal Law (Amendment) Act, 2013 w.e.f. 03.02.2013)
(2) A copy of the information as recorded under Sub-section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information
referred to in Sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent
of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either
investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner
provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation
to that offence.
A perusal of the above said provisions manifests the legislative intent in both old codes and the new code for
compulsory registration of FIR in a case of cognizable offence without conducting any Preliminary Inquiry.
30. The precursor to the present Code of 1973 is the Code of 1898 wherein substantial changes were made in the
powers and procedure of the police to investigate. The starting point of the powers of police was changed from the
power of the officer in-charge of a police station to investigate into a cognizable offence without the order of a
Magistrate, to the reduction of the first information regarding commission of a cognizable offence, whether received
orally or in writing, into writing and into the book separately prescribed by the Provincial government for recording such
first information.
31. As such, a significant change that took place by way of the 1898 Code was with respect to the placement of Section
154, i.e., the provision imposing requirement of recording the first information regarding commission of a cognizable
offence in the special book prior to Section 156, i.e., the provision empowering the police officer to investigate a
cognizable offence. As such, the objective of such placement of provisions was clear which was to ensure that the
recording of the first information should be the starting point of any investigation by the police. In the interest of
expediency of investigation since there was no safeguard of obtaining permission from the Magistrate to commence an
investigation, the said procedure of recording first information in their books along with the signature/seal of the
informant, would act as an "extremely valuable safeguard" against the excessive, mala fide and illegal exercise of
investigative powers by the police.

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32. Provisions contained in Chapter XII of the Code deal with information to the police and their powers to investigate.
The said Chapter sets out the procedure to be followed during investigation. The objective to be achieved by the
procedure prescribed in the said Chapter is to set the criminal law in motion and to provide for all procedural safeguards
so as to ensure that the investigation is fair and is not mala fide and there is no scope of tampering with the evidence
collected during the investigation.
33. In addition, Mr. Shekhar Naphade, learned senior counsel contended that insertion of Section 166A in Indian Penal
Code indicates that registration of FIR is not compulsory for all offences other than what is specified in the said Section.
By Criminal Law (Amendment) Act 2013, Section 166A was inserted in Indian Penal Code which reads as under:
Section 166A--Whoever, being a public servant.-
(a) knowingly disobeys any direction of the law which prohibits him from requiring the attendance at any place of any
person for the purpose of investigation into an offence or any other matter, or
(b) knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he
shall conduct such investigation, or
(c) fails to record any information given to him under Sub-section (1) of Section 154 of the Code of Criminal Procedure,
1973, in relation to cognizable offence punishable under Section 326A, Section 326B, Section 354, Section 354B, Section
370, Section 370A, Section 376, Section 376A, Section 376B, Section 376C, Section 376D, Section 376E, Section 509
shall be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend
to two years and shall also be liable to fine.
Section 166A(c) lays down that if a public servant (Police Officer) fails to record any information given to him under
Section 154(1) of the Code in relation to cognizable offences punishable under Sections 326A, 326B, 354, 354B, 370,
370A, 376, 376A, 376B, 376C, 376D, 376E or Section 509, he shall be punished with rigorous imprisonment for a term
which shall not be less than six months but may extend to two years and shall also be liable to fine. Thus, it is the stand
of learned Counsel that this provision clearly indicates that registration of FIR is imperative and police officer has no
discretion in the matter in respect of offences specified in the said section. Therefore, according to him, the legislature
accepts that as far as other cognizable offences are concerned, police has discretion to hold a preliminary inquiry if there
is doubt about the correctness of the information.
34. Although, the argument is as persuasive as it appears, yet, we doubt whether such a presumption can be drawn in
contravention to the unambiguous words employed in the said provision. Hence, insertion of Section 166A in the Indian
Penal Code vide Criminal Law (Amendment) Act 2013, must be read in consonance with the provision and not contrary
to it. The insertion of Section 166A was in the light of recent unfortunate occurrence of offences against women. The
intention of the legislature in putting forth this amendment was to tighten the already existing provisions to provide
enhanced safeguards to women. Therefore, the legislature, after noticing the increasing crimes against women in our
country, thought it appropriate to expressly punish the police officers for their failure to register FIRs in these cases. No
other meaning than this can be assigned to for the insertion of the same.
35. With this background, let us discuss the submissions in the light of various decisions both in favour and against the
referred issue.
Interpretation of Section 154:
36. It may be mentioned in this connection that the first and foremost principle of interpretation of a statute in every
system of interpretation is the literal rule of interpretation. All that we have to see at the very outset is what does the
provision say? As a result, the language employed in Section 154 is the determinative factor of the legislative intent. A
plain reading of Section 154(1) of the Code provides that any information relating to the commission of a cognizable
offence if given orally to an officer-in-charge of a police station shall be reduced into writing by him or under his
direction. There is no ambiguity in the language of Section 154(1) of the Code.

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37. At this juncture, it is apposite to refer to the following observations of this Court in M/s. Hiralal Rattanlal (supra)
which are as under:
22...In construing a statutory provision, the first and the foremost rule of construction is the literary construction. All
that we have to see at the very outset is what does that provision say? If the provision is unambiguous and if from that
provision, the legislative intent is clear, we need not call into aid the other rules of construction of statutes. The other
rules of construction of statutes are called into aid only when the legislative intention is not clear....
The above decision was followed by this Court in B. Premanand (supra) and after referring the abovesaid observations in
the case of Hiralal Rattanlal (supra), this Court observed as under:
9. It may be mentioned in this connection that the first and foremost principle of interpretation of a statute in every
system of interpretation is the literal rule of interpretation. The other rules of interpretation e.g. the mischief rule,
purposive interpretation, etc. can only be resorted to when the plain words of a statute are ambiguous or lead to no
intelligible results or if read literally would nullify the very object of the statute. Where the words of a statute are
absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule,
vide Swedish Match AB v. SEBI MANU/SC/0693/2004 : (2004) 11 SCC 641.
The language of Section 154(1), therefore, admits of no other construction but the literal construction.
38. The legislative intent of Section 154 is vividly elaborated in Bhajan Lal (supra) which is as under:
offence" (as defined Under Section 2(c) of the Code) if given orally (in which case it is to be reduced into writing) or in
writing to "an officer incharge of a police station" (within the meaning of Section 2(o) of the Code) and signed by the
which form is commonly called as "First Information Report" and which act of entering the information in the said
form is known as registration of a crime or a case.
compliance with the mandate of Section 154(1) of the Code, the concerned police officer cannot embark upon an
inquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a
case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police
commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso
judgment, we do not propose to deal with those sections in extenso in the present context.) In case, an officer in charge
of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a
cognizable offence reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal
or direct an investigation to be made by any police officer subordinate to him in the manner provided by Sub-section (3)
used the expression "information" without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the
expressions, "reasonable complaint" and "credible information" are used. Evidently, the non qualification of the word
"information" in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police
officer should not refuse to record an information relating to the commission of a cognizable offence and to register a
case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other
words, 'reasonableness' or 'credibility' of the said information is not a condition precedent for registration of a case. A
thought it fit to employ only the word "information" without qualifying the said word. Section 139 of the Code of
Criminal Procedure of 1861 (Act 25 of 1861) passed by the Legislative Council of India read that 'every complaint or
Page 166
information' preferred to an officer in charge of a police station should be reduced into writing which provision was
subsequently modified by Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter read that 'every complaint'
preferred to an officer in charge of a police station shall be reduced in writing. The word 'complaint' which occurred in
previous two Codes of 1861 and 1872 was deleted and in that place the word 'information' was used in the Codes of
1882 and 1898 which word is now used in Sections 154, 155, 157 and 190(c) of the present Code of 1973 (Act 2 of
1974). An overall reading of all the Codes makes it clear that the condition which is sine qua non for recording a first
information report is that there must be information and that information must disclose a cognizable offence.
33. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in
charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other
information.
39. Consequently, the condition that is sine qua non for recording an FIR under Section 154 of the Code is that there
must be information and that information must disclose a cognizable offence. If any information disclosing a cognizable
offence is led before an officer in charge of the police station satisfying the requirement of Section 154(1), the said police
officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case
on the basis of such information. The provision of Section 154 of the Code is mandatory and the concerned officer is
duty bound to register the case on the basis of information disclosing a cognizable offence. Thus, the plain words of
Section 154(1) of the Code have to be given their literal meaning.
'Shall'
40. The use of the word "shall" in Section 154(1) of the Code clearly shows the legislative intent that it is mandatory to
register an FIR if the information given to the police discloses the commission of a cognizable offence.
41. In Khub Chand (supra), this Court observed as under:
7...The term "shall" in its ordinary significance is mandatory and the court shall ordinarily give that interpretation to that
term unless such an interpretation leads to some absurd or inconvenient consequence or be at variance with the intent of
the legislature, to be collected from other parts of the Act. The construction of the said expression depends on the
provisions of a particular Act, the setting in which the expression appears, the object for which the direction is given, the
consequences that would flow from the infringement of the direction and such other considerations....
42. It is relevant to mention that the object of using the word "shall" in the context of Section 154(1) of the Code is to
ensure that all information relating to all cognizable offences is promptly registered by the police and investigated in
accordance with the provisions of law.
43. Investigation of offences and prosecution of offenders are the duties of the State. For "cognizable offences", a duty
has been cast upon the police to register FIR and to conduct investigation except as otherwise permitted specifically
under Section 157 of the Code. If a discretion, option or latitude is allowed to the police in the matter of registration of
FIRs, it can have serious consequences on the public order situation and can also adversely affect the rights of the
victims including violating their fundamental right to equality.
44. Therefore, the context in which the word "shall" appears in Section 154(1) of the Code, the object for which it has
been used and the consequences that will follow from the infringement of the direction to register FIRs, all these factors
clearly show that the word "shall" used in Section 154(1) needs to be given its ordinary meaning of being of "mandatory"
character. The provisions of Section 154(1) of the Code, read in the light of the statutory scheme, do not admit of
conferring any discretion on the officer in-charge of the police station for embarking upon a preliminary inquiry prior to
the registration of an FIR. It is settled position of law that if the provision is unambiguous and the legislative intent is
clear, the court need not call into it any other rules of construction.
45. In view of the above, the use of the word 'shall' coupled with the Scheme of the Act lead to the conclusion that the
legislators intended that if an information relating to commission of a cognizable offence is given, then it would
mandatorily be registered by the officer in-charge of the police station. Reading 'shall' as 'may', as contended by some
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counsel, would be against the Scheme of the Code. Section 154 of the Code should be strictly construed and the word
'shall' should be given its natural meaning. The golden rule of interpretation can be given a go-by only in cases where the
language of the section is ambiguous and/or leads to an absurdity.
46. In view of the above, we are satisfied that Section 154(1) of the Code does not have any ambiguity in this regard and
is in clear terms. It is relevant to mention that Section 39 of the Code casts a statutory duty on every person to inform
about commission of certain offences which includes offences covered by Sections 121 to 126, 302, 64A, 382, 392 etc.,
of the Indian Penal Code. It would be incongruous to suggest that though it is the duty of every citizen to inform about
commission of an offence, but it is not obligatory on the officer-incharge of a Police Station to register the report. The
word 'shall' occurring in Section 39 of the Code has to be given the same meaning as the word 'shall' occurring in
Section 154(1) of the Code.
'Book'/'Diary'
47. It is contented by learned ASG appearing for the State of Chhattisgarh that the recording of first information under
Section 154 in the 'book' is subsequent to the entry in the General Diary/Station Diary/Daily Diary, which is maintained
in police station. Therefore, according to learned ASG, first information is a document at the earliest in the general diary,
then if any preliminary inquiry is needed the police officer may conduct the same and thereafter the information will be
registered as FIR.
48. This interpretation is wholly unfounded. The First Information Report is in fact the "information" that is received
first in point of time, which is either given in writing or is reduced to writing. It is not the "substance" of it, which is to
be entered in the diary prescribed by the State Government. The term 'General Diary' (also called as 'Station Diary' or
'Daily Diary' in some States) is maintained not under Section 154 of the Code but under the provisions of Section 44 of
the Police Act, 1861 in the States to which it applies, or under the respective provisions of the Police Act(s) applicable to
a State or under the Police Manual of a State, as the case may be. Section 44 of the Police Act, 1861 is reproduced below:
44. Police-officers to keep diary.--It shall be the duty of every officer in charge of a police-station to keep a general diary
in such form as shall, from time to time, be prescribed by the State Government and to record therein all complaints and
charged preferred, the names of all persons arrested, the names of the complainants, the offences charged against them,
the weapons or property that shall have been taken from their possession or otherwise, and the names of the witnesses
who shall have been examined. The Magistrate of the district shall be at liberty to call for any inspect such diary.
49. It is pertinent to note that during the year 1861, when the aforesaid Police Act, 1861 was passed, the Code of
Criminal Procedure, 1861 was also passed. Section 139 of that Code dealt with registration of FIR and this Section is
also referred to the word "diary", as can be seen from the language of this Section, as reproduced below:
139. Every complaint or information preferred to an officer in charge of a Police Station, shall be reduced into writing,
and the substance thereof shall be entered in a diary to be kept by such officer, in such form as shall be prescribed by the
local government.
Thus, Police Act, 1861 and the Code of Criminal Procedure, 1861, both of which were passed in the same year, used the
same word "diary".
50. However, in the year 1872, a new Code came to be passed which was called the Code of Criminal Procedure, 1872.
Section 112 of the Code dealt with the issue of registration of FIR and is reproduced below:
112. Every complaint preferred to an officer in charge of a Police station shall be reduced into writing, and shall be
signed, sealed, or marked by the person making it; and the substance thereof shall be entered in a book to be kept by
such officer in the form prescribed by the Local Government.
51. It is, thus, clear that in the Code of Criminal Procedure, 1872, a departure was made and the word 'book' was used in
place of 'diary'. The word 'book' clearly referred to FIR book to be maintained under the Code for registration of FIRs.

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52. The question that whether the FIR is to be recorded in the FIR Book or in General Diary, is no more res integra. This
issue has already been decided authoritatively by this Court.
53. In Madhu Bala v. Suresh Kumar MANU/SC/0806/1997 : (1997) 8 SCC 476, this Court has held that FIR must be
registered in the FIR Register which shall be a book consisting of 200 pages. It is true that the substance of the
information is also to be mentioned in the Daily diary (or the general diary). But, the basic requirement is to register the
FIR in the FIR Book or Register. Even in Bhajan Lal (supra), this Court held that FIR has to be entered in a book in a
form which is commonly called the First Information Report.
54. It is thus clear that registration of FIR is to be done in a book called FIR book or FIR Register. of course, in
addition, the gist of the FIR or the substance of the FIR may also be mentioned simultaneously in the General Diary as
mandated in the respective Police Act or Rules, as the case may be, under the relevant State provisions.
55. The General Diary is a record of all important transactions/events taking place in a police station, including
departure and arrival of police staff, handing over or taking over of charge, arrest of a person, details of law and order
duties, visit of senior officers etc. It is in this context that gist or substance of each FIR being registered in the police
station is also mentioned in the General Diary since registration of FIR also happens to be a very important event in the
police station. Since General Diary is a record that is maintained chronologically on day-today basis (on each day,
starting with new number 1), the General Diary entry reference is also mentioned simultaneously in the FIR Book, while
FIR number is mentioned in the General Diary entry since both of these are prepared simultaneously.
56. It is relevant to point out that FIR Book is maintained with its number given on an annual basis. This means that
each FIR has a unique annual number given to it. This is on similar lines as the Case Numbers given in courts. Due to
this reason, it is possible to keep a strict control and track over the registration of FIRs by the supervisory police officers
and by the courts, wherever necessary. Copy of each FIR is sent to the superior officers and to the concerned Judicial
Magistrate.
57. On the other hand, General Diary contains a huge number of other details of the proceedings of each day. Copy of
General Diary is not sent to the Judicial Magistrate having jurisdiction over the police station, though its copy is sent to a
superior police officer. Thus, it is not possible to keep strict control of each and every FIR recorded in the General
Diary by superior police officers and/or the court in view of enormous amount of other details mentioned therein and
the numbers changing every day.
58. The signature of the complainant is obtained in the FIR Book as and when the complaint is given to the police
station. On the other hand, there is no such requirement of obtaining signature of the complainant in the general diary.
Moreover, at times, the complaint given may consist of large number of pages, in which case it is only the gist of the
complaint which is to be recorded in the General Diary and not the full complaint. This does not fit in with the
suggestion that what is recorded in General Diary should be considered to be the fulfillment/compliance of the
requirement of Section 154 of registration of FIR. In fact, the usual practice is to record the complete complaint in the
FIR book (or annex it with the FIR form) but record only about one or two paragraphs (gist of the information) in the
General Diary.
59. In view of the above, it is useful to point out that the Code was enacted under Entry 2 of the Concurrent List of the
Seventh Schedule to the Constitution which is reproduced below:
2. Criminal procedure, including all matters included in the Code of Criminal Procedure at the commencement of this
Constitution.
On the other hand, Police Act, 1861 (or other similar Acts in respective States) were enacted under Entry 2 of the State
List of the Seventh Schedule to the Constitution, which is reproduced below:
2. Police (including railway and village police) subject to the provisions of Entry 2A of List I.

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60. Now, at this juncture, it is pertinent to refer Article 254(1) of the Constitution, which lays down the provisions
relating to inconsistencies between the laws made by the Parliament and the State Legislatures. Article 254(1) is
reproduced as under:
254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States
(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by
Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the
matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2), the law made by Parliament,
whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law,
shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
Thus it is clear from the mandate of Article 254(1) of the Constitution that if there is any inconsistency between the
provisions of the Code and the Police Act, 1861, the provisions of the Code will prevail and the provisions of the Police
Act would be void to the extent of the repugnancy.
61. If at all, there is any inconsistency in the provisions of Section 154 of the Code and Section 44 of the Police Act,
1861, with regard to the fact as to whether the FIR is to be registered in the FIR book or in the General Diary, the
provisions of Section 154 of the Code will prevail and the provisions of Section 44 of the Police Act, 1861 (or similar
provisions of the respective corresponding Police Act or Rules in other respective States) shall be void to the extent of
the repugnancy. Thus, FIR is to be recorded in the FIR Book, as mandated under Section 154 of the Code, and it is not
correct to state that information will be first recorded in the General Diary and only after preliminary inquiry, if required,
the information will be registered as FIR.
62. However, this Court in Tapan Kumar Singh (supra), held that a GD entry may be treated as First information in an
appropriate case, where it discloses the commission of a cognizable offence. It was held as under:
15. It is the correctness of this finding which is assailed before us by the Appellants. They contend that the information
recorded in the GD entry does disclose the commission of a cognizable offence. They submitted that even if their
contention, that after recording the GD entry only a preliminary inquiry was made, is not accepted, they are still entitled
to sustain the legality of the investigation on the basis that the GD entry may be treated as a first information report,
since it disclosed the commission of a cognizable offence.
16. The parties before us did not dispute the legal position that a GD entry may be treated as a first information report
in an appropriate case, where it discloses the commission of a cognizable offence. If the contention of the Appellants is
upheld, the order of the High Court must be set aside because if there was in law a first information report disclosing the
commission of a cognizable offence, the police had the power and jurisdiction to investigate, and in the process of
investigation to conduct search and seizure. It is, therefore, not necessary for us to consider the authorities cited at the
Bar on the question of validity of the preliminary inquiry and the validity of the search and seizure.
Xxx
19. The High Court fell into an error in thinking that the information received by the police could not be treated as a
first information report since the allegation was vague inasmuch as it was not stated from whom the sum of rupees one
lakh was demanded and accepted. Nor was it stated that such demand or acceptance was made as motive or reward for
doing or forbearing to do any official act, or for showing or forbearing to show in exercise of his official function,
favour or disfavour to any person or for rendering, attempting to render any service or disservice to any person. Thus
there was no basis for a police officer to suspect the commission of an offence which he was empowered under Section
156 of the Code to investigate.
63. It is thus unequivocally clear that registration of FIR is mandatory and also that it is to be recorded in the FIR Book
by giving a unique annual number to each FIR to enable strict tracking of each and every registered FIR by the superior
police officers as well as by the competent court to which copies of each FIR are required to be sent.

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'Information'
64. The legislature has consciously used the expression "information" in Section 154(1) of the Code as against the
expression used in Section 41(1)(a) and (g) where the expression used for arresting a person without warrant is
"reasonable complaint" or "credible information". The expression under Section 154(1) of the Code is not qualified by
the prefix "reasonable" or "credible". The non qualification of the word "information" in Section 154(1) unlike in
Section 41(1)(a) and (g) of the Code is for the reason that the police officer should not refuse to record any information
relating to the commission of a cognizable offence on the ground that he is not satisfied with the reasonableness or
credibility of the information. In other words, reasonableness or credibility of the said information is not a condition
precedent for the registration of a case.
65. The above view has been expressed by this Court in Bhajan Lal (supra) which is as under:
32...in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression
"information" without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions, "reasonable
complaint" and "credible information" are used. Evidently, the non-qualification of the word "information" in Section 154(1)
unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an
information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is
not satisfied with the reasonableness or credibility of the information. In other words, 'reasonableness' or 'credibility' of
the said information is not a condition precedent for registration of a case. A comparison of the present Section 154
with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word
"information" without qualifying the said word.
66. In Parkash Singh Badal (supra), this Court held as under:
offence" [as defined under Section 2(c) of the Code] if given orally (in which case it is to be reduced into writing) or in
writing to "an officer in charge of a police station" [within the meaning of Section 2(o) of the Code] and signed by the
which form is commonly called as "first information report" and which act of entering the information in the said form
is known as registration of a crime or a case.
compliance with the mandate of Section 154(1) of the Code, the police officer concerned cannot embark upon an
inquiry as to whether the information laid by the informant is reliable and genuine or otherwise and refuse to register a
to Section 157 thereof. In case an officer in charge of a police station refuses to exercise the jurisdiction vested in him
and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast
upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the
Superintendent of Police concerned who if satisfied that the information forwarded to him discloses a cognizable
offence, should either investigate the case himself or direct an investigation to be made by any police officer subordinate
to him in the manner provided by Sub-section (3) of Section 154 of the Code.
67. It has to be noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and
cautiously used the expression "information" without qualifying the same as in Sections 41(1)(a) or (g) of the Code
wherein the expressions "reasonable complaint" and "credible information" are used. Evidently, the non qualification of
the word "information" in Section 154(1) unlike in Sections 41(1)(a) and (g) of the Code may be for the reason that the
police officer should not refuse to record an information relating to the commission of a cognizable offence and to
register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In
other words, "reasonableness" or "credibility" of the said information is not a condition precedent for registration of a
case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had
purposely thought it fit to employ only the word "information" without qualifying the said word. Section 139 of the
Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by the Legislative Council of India read that "every

Page 171
complaint or information" preferred to an officer in charge of a police station should be reduced into writing which
provision was subsequently modified by Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter read that
"every complaint" preferred to an officer in charge of a police station shall be reduced in writing. The word "complaint"
which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word "information" was used
in the Codes of 1882 and 1898 which word is now used in Sections 154, 155, 157 and 190(c) of the Code. An overall
reading of all the Codes makes it clear that the condition which is sine qua non for recording a first information report is
that there must be an information and that information must disclose a cognizable offence.
information.
67. In Ramesh Kumari (supra), this Court held as under:
4. That a police officer mandatorily registers a case on a complaint of a cognizable offence by the citizen under Section
154 of the Code is no more res integra. The point of law has been set at rest by this Court in State of Haryana v. Bhajan
Lal. This Court after examining the whole gamut and intricacies of the mandatory nature of Section 154 of the Code has
arrived at the finding in paras 31 and 32 of the judgment as under:
compliance with the mandate of Section 154(1) of the Code, the police officer concerned cannot embark upon an
inquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a
judgment, we do not propose to deal with those sections in extenso in the present context.) In case, an officer in charge
of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a
cognizable offence reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal
or direct an investigation to be made by any police officer subordinate to him in the manner provided by Sub-section (3)
used the expression 'information' without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the
expressions, 'reasonable complaint' and 'credible information' are used. Evidently, the non qualification of the word
'information' in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer
should not refuse to record an information relating to the commission of a cognizable offence and to register a case
thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words,
'reasonableness' or 'credibility' of the said information is not a condition precedent for registration of a case. A
thought it fit to employ only the word 'information' without qualifying the said word. Section 139 of the Code of
Criminal Procedure of 1861 (Act 25 of 1861) passed by the Legislative Council of India read that 'every complaint or
information' preferred to an officer in charge of a police station should be reduced into writing which provision was
subsequently modified by Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter read that 'every complaint'
preferred to an officer in charge of a police station shall be reduced in writing. The word 'complaint' which occurred in
previous two Codes of 1861 and 1872 was deleted and in that place the word 'information' was used in the Codes of
1882 and 1898 which word is now used in Sections 154, 155, 157 and 190(c) of the present Code of 1973 (Act 2 of
1974). An overall reading of all the Codes makes it clear that the condition which is sine qua non for recording a first
information report is that there must be information and that information must disclose a cognizable offence.
(Emphasis in original)

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Finally, this Court in para 33 said:
information.
5. The views expressed by this Court in paras 31, 32 and 33 as quoted above leave no manner of doubt that the
provision of Section 154 of the Code is mandatory and the officer concerned is duty-bound to register the case on the
basis of such information disclosing cognizable offence.
68. In Ram Lal Narang (supra), this Court held as under:
14. Under the Code of Criminal Procedure, 1898, whenever an officer in charge of the police station received
information relating to the commission of a cognizable offence, he was required to enter the substance thereof in a book
kept by him, for that purpose, in the prescribed form (Section 154 Code of Criminal Procedure). Section 156 of the
Code of Criminal Procedure invested the Police with the power to investigate into cognizable offences without the order
of a Court. If, from the information received or otherwise, the officer in charge of a police station suspected the
commission of a cognizable offence, he was required to send forthwith a report of the same to a Magistrate empowered
to take cognizance of such offence upon a police report and then to proceed in person or depute one of his subordinate
officers to proceed to the spot, to investigate the facts and circumstances of the case and to take measures for the
discovery and arrest of the offender (Section 157 Code of Criminal Procedure). He was required to complete the
investigation without unnecessary delay, and, as soon as it was completed, to forward to a Magistrate empowered to take
cognizance of the offence upon a police report, a report in the prescribed form, setting forth the names of the parties,
the nature of the information and the names of the persons who appeared to be acquainted with the circumstances of
the case [Section 173(1) Code of Criminal Procedure]. He was also required to state whether the accused had been
forwarded in custody or had been released on bail. Upon receipt of the report submitted under Section 173(1) Code of
Criminal Procedure by the officer in charge of the police station, the Magistrate empowered to take cognizance of an
offence upon a police report might take cognizance of the offence [Section 190(1)(b) Code of Criminal Procedure].
Thereafter, if, in the opinion of the Magistrate taking cognizance of the offence, there was sufficient ground for
proceeding, the Magistrate was required to issue the necessary process to secure the attendance of the accused (Section
204 Code of Criminal Procedure). The scheme of the Code thus was that the FIR was followed by investigation, the
investigation led to the submission of a report to the Magistrate, the Magistrate took cognizance of the offence on
receipt of the police report and, finally, the Magistrate taking cognizance issued process to the accused.
15. The police thus had the statutory right and duty to "register" every information relating to the commission of a
cognizable offence. The police also had the statutory right and duty to investigate the facts and circumstances of the case
where the commission of a cognizable offence was suspected and to submit the report of such investigation to the
Magistrate having jurisdiction to take cognizance of the offence upon a police report. These statutory rights and duties
of the police were not circumscribed by any power of superintendence or interference in the Magistrate; nor was any
sanction required from a Magistrate to empower the Police to investigate into a cognizable offence. This position in law
was well-established. In King Emperor v. Khwaja Nazir Ahmad the Privy Council observed as follows:
Just as it is essential that everyone accused of a crime should have free access to a Court of justice, so that he may be
duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the
judiciary should not interfere with the police in matters which are within their province and into which the law imposes
on them the duty of inquiry. In India, as has been shown, there is a statutory right on the part of the police to investigate
the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it
would, as Their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory
rules by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are
complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is
only to be obtained by leaving each to exercise its own function, always of course, subject to the right of the Courts to
intervene in an appropriate case when moved under Section 491 of the Code of Criminal Procedure to give directions in
the nature of Habeas Corpus. In such a case as the present, however, the Court's functions begin when a charge is
preferred before it and not until then... In the present case, the police have under Sections 154 and 156 of the Code of
Criminal Procedure, a statutory right to investigate a cognizable offence without requiring the sanction of the Court....
Page 173
Ordinarily, the right and duty of the police would end with the submission of a report under Section 173(1) Code of
Criminal Procedure upon receipt of which it was up to the Magistrate to take or not to take cognizance of the offence.
There was no provision in the 1898 Code prescribing the procedure to be followed by the police, where, after the
submission of a report under Section 173(1) Code of Criminal Procedure and after the Magistrate had taken cognizance
of the offence, fresh facts came to light which required further investigation. There was, of course, no express provision
prohibiting the police from launching upon an investigation into the fresh facts coming to light after the submission of
the report under Section 173(1) or after the Magistrate had taken cognizance of the offence. As we shall presently point
out, it was generally thought by many High Courts, though doubted by a few, that the police were not barred from
further investigation by the circumstance that a report under Section 173(1) had already been submitted and a Magistrate
had already taken cognizance of the offence. The Law Commission in its 41st report recognized the position and
recommended that the right of the police to make further investigation should be statutorily affirmed. The Law
Commission said:
14.23. A report under Section 173 is normally the end of the investigation. Sometimes, however, the police officer after
submitting the report under Section 173 comes upon evidence bearing on the guilt or innocence of the accused. We
should have thought that the police officer can collect that evidence and send it to the Magistrate concerned. It appears,
however, that Courts have sometimes taken the narrow view that once a final report under Section 173 has been sent,
the police cannot touch the case again and cannot re-open the investigation. This view places a hindrance in the way of
the investigating agency, which can be very unfair to the prosecution and, for that matter, even to the accused. It should
be made clear in Section 173 that the competent police officer can examine such evidence and send a report to the
Magistrate. Copies concerning the fresh material must of course be furnished to the accused.
Accordingly, in the Code of Criminal Procedure, 1973, a new provision, Section 173(8), was introduced and it says:
Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under
Sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the
police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or
reports regarding such evidence in the form prescribed; and the provisions of Sub-sections (2) to (6) shall, as far as may
be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2).
69. In Lallan Chaudhary (supra), this Court held as under:
8. Section 154 of the Code thus casts a statutory duty upon the police officer to register the case, as disclosed in the
complaint, and then to proceed with the investigation. The mandate of Section 154 is manifestly clear that if any
information disclosing a cognizable offence is laid before an officer in charge of a police station, such police officer has
no other option except to register the case on the basis of such information.
9. In Ramesh Kumari v. State (NCT of Delhi) this Court has held that the provision of Section 154 is mandatory. Hence, the
police officer concerned is duty-bound to register the case on receiving information disclosing cognizable offence.
Genuineness or credibility of the information is not a condition precedent for registration of a case. That can only be
considered after registration of the case.
10. The mandate of Section 154 of the Code is that at the stage of registration of a crime or a case on the basis of the
information disclosing a cognizable offence, the police officer concerned cannot embark upon an inquiry as to whether
the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground
that the information is not relevant or credible. In other words, reliability, genuineness and credibility of the information
are not the conditions precedent for registering a case under Section 154 of the Code.
A perusal of the above-referred judgments clarify that the reasonableness or creditability of the information is not a
condition precedent for the registration of a case.
Preliminary Inquiry
70. Mr. Naphade relied on the following decisions in support of his arguments that if the police officer has a doubt
about the veracity of the accusation, he has to conduct preliminary inquiry, viz., E.P. Royappa v. State of Tamil
Page 174
NaduMANU/SC/0380/1973 : (1974) 4 SCC 3, Maneka Gandhi (supra), S.M.D. Kiran Pasha v. Government of Andhra Pradesh
MANU/SC/0473/1989 : (1990) 1 SCC 328, D.K. Basu v. State of W.B. MANU/SC/0157/1997 : (1997) 1 SCC 416, Uma
Shankar Sitani v. Commissioner of Police, Delhi and Ors. : (1996) 11 SCC 714, Preeti Gupta (supra), Francis Coralie Mullin v.
Administrator, Union Territory of Delhi MANU/SC/0517/1981 : (1981) 1 SCC 608, Common Cause, A Registered Society v.
Union of India MANU/SC/0437/1999 : (1999) 6 SCC 667, District Registrar and Collector, Hyderabad v. Canara Bank
MANU/SC/0935/2004 : (2005) 1 SCC 496 and Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra
MANU/SC/0268/2005 : (2005) 5 SCC 294.
71. Learned senior counsel for the State further vehemently contended that in appropriate cases, it would be proper for a
police officer, on receipt of a complaint of a cognizable offence, to satisfy himself that prima facie the allegations levelled
against the accused in the complaint are credible. In this regard, Mr. Naphade cited the following decisions, viz. Tapan
Kumar Singh (supra), Bhagwant Kishore Joshi (supra), P. Sirajuddin (supra), Sevi (supra), Shashikant (supra), Rajinder Singh Katoch
(supra), Vineet Narain v. Union of India MANU/SC/0827/1998 : (1998) 1 SCC 226, Elumalai v. State of Tamil Nadu
MANU/TN/0610/1983 : 1983 LW (CRL) 121, A. Lakshmanarao v. Judicial Magistrate, Parvatipuram
MANU/SC/0076/1970 : AIR 1971 SC 186, State of Uttar Pradesh v. Ram Sagar Yadav and Ors. MANU/SC/0118/1985 :
(1985) 1 SCC 552, Mona Panwar v. High Court of Judicature of Allahabad MANU/SC/0087/2011 : (2011) 3 SCC 496, Apren
Joseph v. State of Kerala MANU/SC/0078/1972 : (1973) 3 SCC 114, King Emperor v. Khwaja Nazir Ahmad
MANU/PR/0007/1944 : AIR 1945 PC 18 and Sarangdharsingh Shivdassingh Chavan (supra).
72. He further pointed out that the provisions have to be read in the light of the principle of malicious prosecution and
the fundamental rights guaranteed under Articles 14, 19 and 21. It is the stand of learned senior counsel that every
citizen has a right not to be subjected to malicious prosecution and every police officer has an in-built duty under
Section 154 to ensure that an innocent person is not falsely implicated in a criminal case. If despite the fact that the
police officer is not prima facie satisfied, as regards commission of a cognizable offence and proceeds to register an FIR
and carries out an investigation, it would result in putting the liberty of a citizen in jeopardy. Therefore, learned senior
counsel vehemently pleaded for a preliminary inquiry before registration of FIR.
73. In terms of the language used in Section 154 of the Code, the police is duty bound to proceed to conduct
investigation into a cognizable offence even without receiving information (i.e. FIR) about commission of such an
offence, if the officer in charge of the police station otherwise suspects the commission of such an offence. The
legislative intent is therefore quite clear, i.e., to ensure that every cognizable offence is promptly investigated in
accordance with law. This being the legal position, there is no reason that there should be any discretion or option left
with the police to register or not to register an FIR when information is given about the commission of a cognizable
offence. Every cognizable offence must be investigated promptly in accordance with law and all information provided
under Section 154 of the Code about the commission of a cognizable offence must be registered as an FIR so as to
initiate an offence. The requirement of Section 154 of the Code is only that the report must disclose the commission of
a cognizable offence and that is sufficient to set the investigating machinery into action.
74. The insertion of Sub-section (3) of Section 154, by way of an amendment, reveals the intention of the legislature to
ensure that no information of commission of a cognizable offence must be ignored or not acted upon which would
result in unjustified protection of the alleged offender/accused.
75. The maxim expression unius est exclusion alterius (expression of one thing is the exclusion of another) applies in the
interpretation of Section 154 of the Code, where the mandate of recording the information in writing excludes the
possibility of not recording an information of commission of a cognizable crime in the special register.
76. Therefore, conducting an investigation into an offence after registration of FIR under Section 154 of the Code is the
"procedure established by law" and, thus, is in conformity with Article 21 of the Constitution. Accordingly, the right of
the accused under Article 21 of the Constitution is protected if the FIR is registered first and then the investigation is
conducted in accordance with the provisions of law.
77. The term inquiry as per Section 2(g) of the Code reads as under:
2(g) - "inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court.

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Hence, it is clear that inquiry under the Code is relatable to a judicial act and not to the steps taken by the Police which
are either investigation after the stage of Section 154 of the Code or termed as 'Preliminary Inquiry' and which are prior
to the registration of FIR, even though, no entry in the General Diary/Station Diary/Daily Diary has been made.
78. Though there is reference to the term 'preliminary inquiry' and 'inquiry' under Sections 159 and Sections 202 and 340
of the Code, that is a judicial exercise undertaken by the Court and not by the Police and is not relevant for the purpose
of the present reference.
79. Besides, learned senior counsel relied on the special procedures prescribed under the CBI manual to be read into
Section 154. It is true that the concept of "preliminary inquiry" is contained in Chapter IX of the Crime Manual of the
CBI. However, this Crime Manual is not a statute and has not been enacted by the legislature. It is a set of administrative
orders issued for internal guidance of the CBI officers. It cannot supersede the Code. Moreover, in the absence of any
indication to the contrary in the Code itself, the provisions of the CBI Crime Manual cannot be relied upon to import
the concept of holding of preliminary inquiry in the scheme of the Code of Criminal Procedure. At this juncture, it is
also pertinent to submit that the CBI is constituted under a Special Act, namely, the Delhi Special Police Establishment
Act, 1946 and it derive its power to investigate from this Act.
80. It may be submitted that Sections 4(2) and 5 of the Code permit special procedures to be followed for special Acts.
Section 4 of the Code lays down as under:
Section 4. Trial of offences under the Indian Penal Code and other laws. (1) All offences under the Indian Penal Code
(45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter
contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the
same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating,
inquiring into, trying or otherwise dealing with such offences.
It is thus clear that for offences under laws other than Indian Penal Code, different provisions can be laid down under a
special Act to regulate the investigation, inquiry, trial etc., of those offences. Section 4(2) of the Code protects such
special provisions.
81. Moreover, Section 5 of the Code lays down as under:
Section 5. Saving-Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any
special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of
procedure prescribed, by any other law for the time being in force.
Thus, special provisions contained in the DSPE Act relating to the powers of the CBI are protected also by Section 5 of
the Code.
82. In view of the above specific provisions in the Code, the powers of the CBI under the DSPE Act, cannot be equated
with the powers of the regular State Police under the Code.
Significance and Compelling reasons for registration of FIR at the earliest
83. The object sought to be achieved by registering the earliest information as FIR is inter alia two fold: one, that the
criminal process is set into motion and is well documented from the very start; and second, that the earliest information
received in relation to the commission of a cognizable offence is recorded so that there cannot be any embellishment
etc., later.
84. Principles of democracy and liberty demand a regular and efficient check on police powers. One way of keeping
check on authorities with such powers is by documenting every action of theirs. Accordingly, under the Code, actions of
the police etc., are provided to be written and documented. For example, in case of arrest under Section 41(1)(b) of the
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Code, arrest memo along with the grounds has to be in writing mandatorily; under Section 55 of the Code, if an officer
is deputed to make an arrest, then the superior officer has to write down and record the offence etc., for which the
person is to be arrested; under Section 91 of the Code, a written order has to be passed by the concerned officer to seek
documents; under Section 160 of the Code, a written notice has to be issued to the witness so that he can be called for
recording of his/her statement, seizure memo/panchnama has to be drawn for every article seized etc.
85. The police is required to maintain several records including Case Diary as provided under Section 172 of the Code,
General Diary as provided under Section 44 of the Police Act etc., which helps in documenting every information
collected, spot visited and all the actions of the police officers so that their activities can be documented. Moreover,
every information received relating to commission of a non-cognizable offence also has to be registered under Section
155 of the Code.
86. The underpinnings of compulsory registration of FIR is not only to ensure transparency in the criminal justice
delivery system but also to ensure 'judicial oversight'. Section 157(1) deploys the word 'forthwith'. Thus, any information
received under Section 154(1) or otherwise has to be duly informed in the form of a report to the Magistrate. Thus, the
commission of a cognizable offence is not only brought to the knowledge of the investigating agency but also to the
subordinate judiciary.
87. The Code contemplates two kinds of FIRs. The duly signed FIR under Section 154(1) is by the informant to the
concerned officer at the police station. The second kind of FIR could be which is registered by the police itself on any
information received or other than by way of an informant [Section 157(1)] and even this information has to be duly
recorded and the copy should be sent to the Magistrate forthwith.
88. The registration of FIR either on the basis of the information furnished by the informant under Section 154(1) of the
Code or otherwise under Section 157(1) of the Code is obligatory. The obligation to register FIR has inherent
advantages:
a) It is the first step to 'access to justice' for a victim.
b) It upholds the 'Rule of Law' inasmuch as the ordinary person brings forth the commission of a cognizable crime in
the knowledge of the State.
c) It also facilitates swift investigation and sometimes even prevention of the crime. In both cases, it only effectuates the
regime of law.
d) It leads to less manipulation in criminal cases and lessens incidents of 'ante-dates' FIR or deliberately delayed FIR.
89. In Thulia Kali v. State of Tamil Nadu MANU/SC/0276/1972 : (1972) 3 SCC 393, this Court held as under:
12...First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of
corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated
from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of
commission of an offence is to obtain early information regarding the circumstances in which the crime was committed,
the names of the actual culprits and the part played by them as well as the names of eyewitnesses present at the scene of
occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of
afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of
the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation.
It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained....
90. In Tapan Kumar Singh (supra), it was held as under:
20. It is well settled that a first information report is not an encyclopaedia, which must disclose all facts and details
relating to the offence reported. An informant may lodge a report about the commission of an offence though he may
not know the name of the victim or his assailant. He may not even know how the occurrence took place. A first
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informant need not necessarily be an eyewitness so as to be able to disclose in great detail all aspects of the offence
committed. What is of significance is that the information given must disclose the commission of a cognizable offence
and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable
offence. At this stage it is enough if the police officer on the basis of the information given suspects the commission of a
cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed. If he
has reasons to suspect, on the basis of information received, that a cognizable offence may have been committed, he is
bound to record the information and conduct an investigation. At this stage it is also not necessary for him to satisfy
himself about the truthfulness of the information. It is only after a complete investigation that he may be able to report
on the truthfulness or otherwise of the information. Similarly, even if the information does not furnish all the details he
must find out those details in the course of investigation and collect all the necessary evidence. The information given
disclosing the commission of a cognizable offence only sets in motion the investigative machinery, with a view to collect
all necessary evidence, and thereafter to take action in accordance with law. The true test is whether the information
furnished provides a reason to suspect the commission of an offence, which the police officer concerned is empowered
under Section 156 of the Code to investigate. If it does, he has no option but to record the information and proceed to
investigate the case either himself or depute any other competent officer to conduct the investigation. The question as to
whether the report is true, whether it discloses full details regarding the manner of occurrence, whether the accused is
named, and whether there is sufficient evidence to support the allegations are all matters which are alien to the
consideration of the question whether the report discloses the commission of a cognizable offence. Even if the
information does not give full details regarding these matters, the investigating officer is not absolved of his duty to
investigate the case and discover the true facts, if he can.
91. In Madhu Bala (supra), this Court held:
6. Coming first to the relevant provisions of the Code, Section 2(d) defines "complaint" to mean any allegation made
orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or
unknown has committed an offence, but does not include a police report. Under Section 2(c) "cognizable offence"
means an offence for which, and "cognizable case" means a case in which a police officer may in accordance with the
First Schedule (of the Code) or under any other law for the time being in force, arrest without a warrant. Under Section
2(r) "police report" means a report forwarded by a police officer to a Magistrate under Sub-section (2) of Section 173 of
the Code. Chapter XII of the Code comprising Sections 154 to 176 relates to information to the police and their powers
to investigate. Section 154 provides, inter alia, that the officer in charge of a police station shall reduce into writing every
information relating to the commission of a cognizable offence given to him orally and every such information if given
in writing shall be signed by the person giving it and the substance thereof shall be entered in a book to be kept by such
officer in such form as the State Government may prescribe in this behalf. Section 156 of the Code with which we are
primarily concerned in these appeals reads as under....
9. The mode and manner of registration of such cases are laid down in the Rules framed by the different State
Governments under the Indian Police Act, 1861. As in the instant case we are concerned with Punjab Police Rules, 1934
(which are applicable to Punjab, Haryana, Himachal Pradesh and Delhi) framed under the said Act we may now refer to
the relevant provisions of those Rules. Chapter XXIV of the said Rules lays down the procedure an officer in charge of a
police station has to follow on receipt of information of commission of crime. Under Rule 24.1 appearing in the Chapter
every information covered by Section 154 of the Code must be entered in the First Information Report Register and the
substance thereof in the daily diary. Rule 24.5 says that the First Information Report Register shall be a printed book in
Form 24.5(1) consisting of 200 pages and shall be completely filled before a new one is commenced. It further requires
that the cases shall bear an annual serial number in each police station for each calendar year. The other requirements of
the said Rules need not be detailed as they have no relevance to the point at issue.
10. From the foregoing discussion it is evident that whenever a Magistrate directs an investigation on a "complaint" the
police has to register a cognizable case on that complaint treating the same as the FIR and comply with the requirements
of the above Rules. It, therefore, passes our comprehension as to how the direction of a Magistrate asking the police to
"register a case" makes an order of investigation under Section 156(3) legally unsustainable. Indeed, even if a Magistrate
does not pass a direction to register a case, still in view of the provisions of Section 156(1) of the Code which empowers
the police to investigate into a cognizable "case" and the Rules framed under the Indian Police Act, 1861 it (the police) is
duty-bound to formally register a case and then investigate into the same. The provisions of the Code, therefore, do not
in any way stand in the way of a Magistrate to direct the police to register a case at the police station and then investigate
into the same. In our opinion when an order for investigation under Section 156(3) of the Code is to be made the proper
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direction to the police would be "to register a case at the police station treating the complaint as the first information
report and investigate into the same.
92. According to the Statement of Objects and Reasons, protection of the interests of the poor is clearly one of the main
objects of the Code. Making registration of information relating to commission of a cognizable offence mandatory
would help the society, especially, the poor in rural and remote areas of the country.
93. The Committee on Reforms of Criminal Justice System headed by Dr. Justice V.S. Malimath also noticed the plight
faced by several people due to non-registration of FIRs and recommended that action should be taken against police
officers who refuse to register such information. The Committee observed:
7.19.1 According to the Section 154 of the Code of Criminal Procedure, the office incharge of a police station is
mandated to register every information oral or written relating to the commission of a cognizable offence. Non-
registration of cases is a serious complaint against the police. The National Police Commission in its 4 th report lamented
that the police "evade registering cases for taking up investigation where specific complaints are lodged at the police
stations". It referred to a study conducted by the Indian Institute of Public Opinion, New Delhi regarding "Image of the
Police in India" which observed that over 50% of the Respondents mention non-registration of complaints as a
common practice in police stations.
7.19.2 The Committee recommends that all complaints should be registered promptly, failing which appropriate action
should be taken. This would necessitate change in the mind - set of the political executive and that of senior officers.
7.19.4 There are two more aspects relating to registration. The first is minimization of offences by the police by way of
not invoking appropriate sections of law. We disapprove of this tendency. Appropriate sections of law should be
invoked in each case unmindful of the gravity of offences involved. The second issue is relating to the registration of
written complaints. There is an increasing tendency amongst the police station officers to advise the informants, who
come to give oral complaints, to bring written complaints. This is wrong. Registration is delayed resulting in valuable loss
of time in launching the investigation and apprehension of criminals. Besides, the complainant gets an opportunity to
consult his friends, relatives and sometimes even lawyers and often tends to exaggerate the crime and implicate innocent
persons. This eventually has adverse effect at the trial. The information should be reduced in writing by the SH, if given
orally, without any loss of time so that the first version of the alleged crime comes on record.
7.20.11 It has come to the notice of the Committee that even in cognizable cases quite often the Police officers do not
entertain the complaint and send the complainant away saying that the offence is not cognizable. Sometimes the police
twist facts to bring the case within the cognizable category even though it is non-cognizable, due to political or other
pressures or corruption. This menace can be stopped by making it obligatory on the police officer to register every
complaint received by him. Breach of this duty should become an offence punishable in law to prevent misuse of the
power by the police officer.
94. It means that the number of FIRs not registered is approximately equivalent to the number of FIRs actually
registered. Keeping in view the NCRB figures that show that about 60 lakh cognizable offences were registered in India
during the year 2012, the burking of crime may itself be in the range of about 60 lakh every year. Thus, it is seen that
such a large number of FIRs are not registered every year, which is a clear violation of the rights of the victims of such a
large number of crimes.
95. Burking of crime leads to dilution of the rule of law in the short run; and also has a very negative impact on the rule
of law in the long run since people stop having respect for rule of law. Thus, non-registration of such a large number of
FIRs leads to a definite lawlessness in the society.
96. Therefore, reading Section 154 in any other form would not only be detrimental to the Scheme of the Code but also
to the society as a whole. It is thus seen that this Court has repeatedly held in various decided cases that registration of
FIR is mandatory if the information given to the police under Section 154 of the Code discloses the commission of a
cognizable offence.
Is there a likelihood of misuse of the provision?

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97. Another, stimulating argument raised in support of preliminary inquiry is that mandatory registration of FIRs will
lead to arbitrary arrest, which will directly be in contravention of Article 21 of the Constitution.
98. While registration of FIR is mandatory, arrest of the accused immediately on registration of FIR is not at all
mandatory. In fact, registration of FIR and arrest of an accused person are two entirely different concepts under the law,
and there are several safeguards available against arrest. Moreover, it is also pertinent to mention that an accused person
also has a right to apply for "anticipatory bail" under the provisions of Section 438 of the Code if the conditions
mentioned therein are satisfied. Thus, in appropriate cases, he can avoid the arrest under that provision by obtaining an
order from the Court.
99. It is also relevant to note that in Joginder Kumar v. State of U.P. and Ors. MANU/SC/0311/1994 : (1994) 4 SCC 260,
this Court has held that arrest cannot be made by police in a routine manner. Some important observations are
reproduced as under:
20...No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person.
It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps
in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to
the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as
to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police
Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A
person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable
justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous
offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to
leave the Station without permission would do.
100. The registration of FIR under Section 154 of the Code and arrest of an accused person under Section 41 are two
entirely different things. It is not correct to say that just because FIR is registered, the accused person can be arrested
immediately. It is the imaginary fear that "merely because FIR has been registered, it would require arrest of the accused
and thereby leading to loss of his reputation" and it should not be allowed by this Court to hold that registration of FIR
is not mandatory to avoid such inconvenience to some persons. The remedy lies in strictly enforcing the safeguards
available against arbitrary arrests made by the police and not in allowing the police to avoid mandatory registration of
FIR when the information discloses commission of a cognizable offence.
101. This can also be seen from the fact that Section 151 of the Code allows a police officer to arrest a person, even
before the commission of a cognizable offence, in order to prevent the commission of that offence, if it cannot be
prevented otherwise. Such preventive arrests can be valid for 24 hours. However, a Maharashtra State amendment to
Section 151 allows the custody of a person in that State even for up to a period of 30 days (with the order of the Judicial
Magistrate) even before a cognizable offence is committed in order to prevent commission of such offence. Thus, the
arrest of a person and registration of FIR are not directly and/or irreversibly linked and they are entirely different
concepts operating under entirely different parameters. On the other hand, if a police officer misuses his power of arrest,
he can be tried and punished under Section 166.
102. Besides, the Code gives power to the police to close a matter both before and after investigation. A police officer
can foreclose an FIR before an investigation under Section 157 of the Code, if it appears to him that there is no
sufficient ground to investigate the same. The Section itself states that a police officer can start investigation when he has
a 'reason to suspect the commission of an offence'. Therefore, the requirements of launching an investigation under Section 157
of the Code are higher than the requirement under Section 154 of the Code. The police officer can also, in a given case,
investigate the matter and then file a final report under Section 173 of the Code seeking closure of the matter. Therefore,
the police is not liable to launch an investigation in every FIR which is mandatorily registered on receiving information
relating to commission of a cognizable offence.
103. Likewise, giving power to the police to close an investigation, Section 157 of the Code also acts like a check on the
police to make sure that it is dispensing its function of investigating cognizable offences. This has been recorded in the
41st Report of the Law Commission of India on the Code of Criminal Procedure, 1898 as follows:

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14.1...If the offence does not appear to be serious and if the station-house officer thinks there is no sufficient ground for
starting an investigation, he need not investigate but, here again, he has to send a report to the Magistrate who can direct
the police to investigate, or if the Magistrate thinks fit, hold an inquiry himself.
14.2. A noticeable feature of the scheme as outlined above is that a Magistrate is kept in the picture at all stages of the
police investigation, but he is not authorized to interfere with the actual investigation or to direct the police how that
investigation is to be conducted.
Therefore, the Scheme of the Code not only ensures that the time of the police should not be wasted on false and
frivolous information but also that the police should not intentionally refrain from doing their duty of investigating
cognizable offences. As a result, the apprehension of misuse of the provision of mandatory registration of FIR is
unfounded and speculative in nature.
104. It is the stand of Mr. Naphade, learned senior Counsel for the State of Maharashtra that when an innocent person is
falsely implicated, he not only suffers from loss of reputation but also from mental tension and his personal liberty is
seriously impaired. He relied on the Maneka Gandhi (supra), which held the proposition that the law which deprives a
person of his personal liberty must be reasonable both from the stand point of substantive as well as procedural aspect is
now firmly established in our Constitutional law. Therefore, he pleaded for a fresh look at Section 154 of the Code,
which interprets Section 154 of the Code in conformity with the mandate of Article 21.
105. It is true that a delicate balance has to be maintained between the interest of the society and protecting the liberty of
an individual. As already discussed above, there are already sufficient safeguards provided in the Code which duly
protect the liberty of an individual in case of registration of false FIR. At the same time, Section 154 was drafted keeping
in mind the interest of the victim and the society. Therefore, we are of the cogent view that mandatory registration of
FIRs under Section 154 of the Code will not be in contravention of Article 21 of the Constitution as purported by
various counsel.
Exceptions:
106. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of
FIRs on receipt of all cognizable offence, yet, there may be instances where preliminary inquiry may be required owing
to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations
relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional
only on the basis of the allegations in the complaint.
107. In the context of medical negligence cases, in Jacob Mathew (supra), it was held by this Court as under:
51. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or
negligence is an essential ingredient. All that we are doing is to emphasise the need for care and caution in the interest of
society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence
there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefer recourse to
criminal process as a tool for pressurising the medical professional for extracting uncalled for or unjust compensation.
Such malicious proceedings have to be guarded against.
52. Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the
Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is
not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for
offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained
unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by
another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The
investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an
independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of
medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam test to the
facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner
(simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or
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for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not
make himself available to face the prosecution unless arrested, the arrest may be withheld.
108. In the context of offences relating to corruption, this Court in P. Sirajuddin (supra) expressed the need for a
preliminary inquiry before proceeding against public servants.
109. Similarly, in Tapan Kumar Singh (supra), this Court has validated a preliminary inquiry prior to registering an FIR
only on the ground that at the time the first information is received, the same does not disclose a cognizable offence.
110. Therefore, in view of various counter claims regarding registration or non-registration, what is necessary is only that
the information given to the police must disclose the commission of a cognizable offence. In such a situation,
registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the
FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry
for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information
given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith.
Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely
given, whether the information is genuine, whether the information is credible etc. These are the issues that have to be
verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the
information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information
given is found to be false, there is always an option to prosecute the complainant for filing a false FIR.
Conclusion/Directions:
111. In view of the aforesaid discussion, we hold:
(i) 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.
(ii) 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.
(iii) 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.
(iv) 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.
(v) 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.
(vi) 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

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(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.
(vii) 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.
(viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we
direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an
inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary
inquiry must also be reflected, as mentioned above.
112. With the above directions, we dispose of the reference made to us. List all the matters before the appropriate Bench
for disposal on merits.

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MANU/SC/1427/2019
Criminal Appeal Nos. 478-479 of 2017
Appellants: Vinubhai Haribhai Malaviya and Ors.

Vs.
Respondent: The State of Gujarat and Ors.
Rohinton Fali Nariman, Surya Kant and V. Ramasubramanian, JJ.
JUDGMENT
Rohinton Fali Nariman, J.
1. This case arises out of a First Information Report (hereinafter referred to as "FIR") that was lodged on 22.12.2009.
The FIR is by one Nitinbhai Mangubhai Patel, Power-of-Attorney holder of Ramanbhai Bhagubhai Patel and
Shankarbhai Bhagubhai Patel, who are allegedly residing at "UK or USA". The gravamen of the complaint made in the
FIR is that one Vinubhai Haribhai Malaviya is blackmailing these two gentlemen with respect to agricultural land which
is just outside the city of Surat, Gujarat and which admeasures about 8296 square meters. The FIR alleges that
Ramanbhai Patel and Shankarbhai Patel are absolute and independent owners of this land, having obtained it from one
Bhikhabhai Khushalbhai and his wife Bhikiben Bhikhabhai in the year 1975. The FIR then narrates that because of a
recent price-hike of lands in the city of Surat, the heirs of Bhikhabhai and Bhikiben together with Vinubhai Haribhai
Malaviya and Manubhai Kurjibhai Malaviya have hatched a conspiracy in collusion with each other, and published a
public notice under the caption "Beware of Land-grabbers" in a local newspaper on 07.06.2008. Sometime thereafter,
Vinubhai Haribhai Malaviya then contacted an intermediary, who in turn contacted Nitinbhai Patel (who lodged the
FIR), whereby, according to Nitinbhai Patel, Vinubhai Malaviya demanded an amount of Rs. 2.5 crores in order to
"settle" disputes in respect of this land. It is alleged in the said FIR that apart from attempting to extort money from the
said Nitinbhai Patel, the heirs of Bhikhabhai and Bhikiben together with Vinubhai Haribhai Malaviya and Manubhai
Kurjibhai Malaviya have used a fake and bogus 'Satakhat' and Power-of-Attorney in respect of the said land, and had
tried to grab this land from its lawful owners Ramanbhai and Shankarbhai Patel.
2. The background to the FIR is the fact that one Khushalbhai was the original tenant of agricultural land, bearing
Revenue Survey No. 342, admeasuring 2 Acres, 2 Gunthas, situated at Puna (Mauje), Choriyasi (Tal), District Surat.
Khushalbhai died, after which his son Bhikhabhai became tenant in his place. Bhikhabhai in turn died on 23.12.1984 and
his wife Bhikiben died on 18.12.1999. A public notice dated 07.06.2008 was issued in 'Gujarat Mitra' and 'Gujarat
Darpan Dainik' by the heirs of Bhikhabhai, stating that Ramanbhai and Shankarbhai Patel are land-grabbers, and are
attempting to create third-party rights in the said property. This led to the legal heirs of Bhikhabhai, through their
Power-of-Attorney holder, applying on 12.06.2008 to the Collector, Nanpura (Surat), to cancel revenue entries that were
made way back in 1976.
3. Pursuant to the filing of the FIR, investigation was conducted by the police, which resulted in a charge-sheet dated
22.04.2010 being submitted to the Judicial Magistrate (First Class), Surat. On 23.04.2010, the said Magistrate took
cognizance and issued summons to the Accused regarding offences Under Sections 420, 465, 467, 468, 471, 384 and 511
of the Indian Penal Code, 1860 (hereinafter referred to as "IPC"). Pursuant to the summons, the Accused appeared
before the said Magistrate. On 10.06.2011, an application (Exhibit 28) was filed by Accused No. 1 Vinubhai Haribhai
Malaviya for further investigation Under Section 173(8) of the Code of Criminal Procedure, 1973 (hereinafter referred to
as "CrPC") and another application (Exhibit 29) for discharge. Likewise, on 14.06.2011, applications for further

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investigation (Exhibit 31) and for discharge (Exhibit 32) were filed by Accused 2 to 6. By an order dated 24.08.2011, the
Magistrate dismissed the applications that were filed for further investigation (i.e. Exhibits 28 and 31), stating that the
facts sought to be placed by the applicants were in the nature of evidence of the defence that would be taken in the trial.
Likewise, on 21.10.2011 the learned Magistrate also rejected the discharge applications that were made (i.e. Exhibits 29
and 32).
4. Meanwhile, on 26.07.2011, Criminal Miscellaneous Application No. 816 of 2011 was moved by Vinubhai Haribhai
Malaviya and the other Accused to register an FIR, or for the Magistrate to order investigation Under Section 156(3) of
the Code of Criminal Procedure into the facts stated in their applications. This was rejected by the learned Magistrate by
an order dated 09.09.2011.
5. Separate criminal revision applications were filed before the Sessions Court, Surat, being Revision Application Nos.
376 and 346 of 2011, insofar as the dismissal by the learned Magistrate of further investigation and the order rejecting
registration of the FIR were concerned. Both these revision applications were decided by the learned Second Additional
Sessions Judge, Surat by a common order dated 10.01.2012. By this order, the learned Second Additional Sessions Judge
went into details of facts that were alleged in the application Under Section 173(8) and found that a case had been made
out for further investigation. Accordingly, he held:
As per the above referred discussion, it can be seen that no effective investigation or discussions have been carried out
in all these respect during in the course of the investigation of said offence and further, it is very noteworthy here that
matters for which the prayers are made in these Revision Applications, all these matters are pertaining to the complaint
of this case. Hence, it is very much necessary that for the purpose of carrying out a detailed and full investigation of this
complaint, all these matters should also be investigated. But for the said purpose, it is not necessary that a separate
complaint be registered and thereafter its investigation be carried out. But by covering this investigation also in the
complaint of the present matter, if it is found out in such investigation that any offence was committed, then appropriate
criminal proceedings can be initiated against such person.
6. Pursuant to this order, the investigation was handed over to Investigating Officer R.A. Munshi (hereinafter referred to
as "IO Munshi") on 06.03.2012, who then submitted two further investigation reports-one within three days, dated
09.03.2012 and a second one dated 10.04.2012, in which the IO Munshi went into the facts mentioned in the 173(8)
applications that were filed. On 13.06.2012, the original Accused withdrew Special Criminal Application No. 727 of 2012
filed in the High Court, which was filed challenging the order by which the learned Revisional Court had confirmed the
order rejecting the discharge applications, with liberty to move an appropriate application for discharge before the
Magistrate. The High Court heard Criminal Revision Application No. 44 of 2012 together with Criminal Miscellaneous
Application No. 1746 of 2012, and arrived at the conclusion that, as a matter of law, the Magistrate does not possess any
power to order further investigation after a charge-sheet is filed and cognizance is taken. The High Court further
castigated IO Munshi, holding that the furnishing of interim investigation reports, not through a special public
prosecutor and not to the Magistrate, but to the Additional Sessions Judge himself smacks of mala fides, as if IO Munshi
wanted to oblige and/or favour the Accused persons. The High Court further found that the two interim investigation
reports virtually acquitted the Accused persons, and therefore, the High Court set aside the judgment of the learned
Second Additional Sessions Judge dated 10.01.2012, and consequently, the two further interim investigation reports. So
far as Criminal Revision Application No. 346 of 2011 (which was disposed of by the learned Second Additional Sessions
Judge without considering merits, in light of its order in Criminal Revision Application No. 376 of 2011) was concerned,
the High court remanded the same for fresh consideration to the learned Second Additional Sessions Judge, who would
then decide as to whether an FIR should be registered, insofar as the allegations contained in the applications for further
investigation are concerned. Pursuant to the aforesaid remand, by judgment dated 23.04.2016, the learned Additional
Sessions Judge has rejected the application Under Section 156(3) of the Code of Criminal Procedure on merits, against
which Special Criminal Application No. 3085 of 2016 has been filed and is awaiting disposal. Several other proceedings
that are pending between the parties have been pointed out to us, with which we have no immediate concern in this
case.
7. Shri Dushyant Dave, learned Senior Advocate, appearing on behalf of the Appellants, has forcefully argued, placing
reliance on a number of provisions of the Code of Criminal Procedure, and a number of our judgments, that the High
Court was wholly incorrect as a matter of law, in holding that post-cognizance a Magistrate would have no power to
order further investigation into an offence. He read out in great detail the FIR dated 22.12.2009, the contents of the
charge-sheet dated 22.04.2010, and relied heavily on a communication made by the Commissioner of Revenue, Gujarat
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to the Collector, Surat dated 15.03.2011. According to him, the contents of this communication would show that there is
no doubt that further investigation ought to have been carried out on the facts of this case, in that, a huge fraud had
been perpetrated on his clients by land-grabbing mafia, and it would be a travesty of justice if the learned Second
Additional Sessions Judge's judgment dated 10.01.2012 was not upheld. According to him, the High Court judgment was
greatly influenced by the fact that: (1) IO Munshi submitted further interim investigation reports very quickly, and (2)
had submitted these reports to the Additional Sessions Judge instead of the Magistrate; resulting in the throwing out of
the baby with the bathwater. He therefore urged us to uphold the order of the Second Additional Sessions Judge who
ordered further investigation, as that would lead to the truth of the matter in this case.
8. On the other hand, Shri Basant and Shri Navare, learned Senior Advocates appearing on behalf of the Respondents,
supported the judgment of the trial court and the High Court, stating that there is no doubt that without filing a cross-
FIR, what was sought to be adduced is evidence which may perhaps amount to a defence in the trial to be conducted,
which would be impermissible. They emphasised that at no stage had an application been moved to quash the
proceedings, and obviously, a belated application made more than a year after cognizance had been taken, to obtain by
way of further investigation facts which were wholly divorced from the FIR would be wholly outside the Magistrate's
power Under Section 173(8) of the Code of Criminal Procedure They relied upon several judgments, and particularly
recent judgments of this Court, in order to show that post-cognizance and particularly after summons is issued to the
Accused, and the Accused appears pursuant to such summons, the Magistrate has no suo motu power, nor can he be
moved by the Accused, for further investigation at this stage of the proceedings.
9. The question of law that therefore arises in this case is whether, after a charge-sheet is filed by the police, the
Magistrate has the power to order further investigation, and if so, up to what stage of a criminal proceeding.
10. The Code of Criminal Procedure is neatly divided into 37 Chapters. In this case we are concerned with Chapters XII
to XVII. Chapter XII is titled "Information to the Police and their Powers to Investigate". Chapter XIII has as its title
"Jurisdiction of the Criminal Courts in Inquiries and Trials". Chapter XIV speaks of "Conditions Requisite for Initiation
of Proceedings". Chapter XV then speaks of "Complaints to Magistrates". Chapter XVI is headed "Commencement of
Proceedings before Magistrates" and Chapter XVII is headed "The Charge". Chapters XVIII to XXI are "Trials before a
Court of Session"; "Trial of Warrant-Cases by Magistrates"; "Trials of Summons-Cases by Magistrates"; and Summary
Trials", respectively.
11. The relevant Sections of the Code of Criminal Procedure with which we are concerned are as follows:
156. Police officer's power to investigate cognizable case.-
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which
a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try
under the provisions of Chapter XIII.
xxx xxx xxx
(3) Any Magistrate empowered Under Section 190 may order such an investigation as above-mentioned.
xxx xxx xxx
173. Report of police officer on completion of investigation.-
xxx xxx xxx
(8) Nothing in this Section shall be deemed to preclude further investigation in respect of an offence after a report under
reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may
Page 186
xxx xxx xxx
190. Cognizance of offences by Magistrates.-(1) Subject to the provisions of this Chapter, any Magistrate of the first
class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), may take
cognizance of any offence-
(a) upon receiving a complaint of facts 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.
xxx xxx xxx
200. Examination of complainant.-A Magistrate taking cognizance of an offence on complaint shall examine upon oath
the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and
shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the
witnesses-
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint;
or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate Under Section 192.
Provided further that if the Magistrate makes over the case to another Magistrate Under Section 192 after examining the
complainant and the witnesses, the latter Magistrate need not re-examine them.
xxx xxx xxx
202. Postponement of issue of process.-(1) Any Magistrate, on receipt of a complaint of an offence of which he is
authorised to take cognizance or which has been made over to him Under Section 192, may, if he thinks fit, [and shall, in
a case where the Accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue
of process against the Accused, and either inquire into the case himself or direct an investigation to be made by a police
officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for
proceeding:
Provided that no such direction for investigation shall be made-
(a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or
(b) Where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have
been examined on oath Under Section 200.
(2) In an inquiry under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session,
he shall call upon the complainant to produce all his witnesses and examine them on oath.
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(3) If an investigation under Sub-section (1) is made by a person not being a police officer, he shall have for that
investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest
without warrant.
xxx xxx xxx
204. Issue of process.-(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for
proceeding, and the case appears to be-
(a) a summons-case, he shall issue his summons for the attendance of the Accused, or
(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summon, for causing the Accused to be brought or to
appear at a certain time before such other Magistrate or (if he has no jurisdiction himself) some other Magistrate having
jurisdiction.
(2) No summons or warrant shall be issued against the Accused under Sub-section (1) until a list of the prosecution
witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under Sub-section (1)
shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued
until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this Section shall be deemed to affect the provisions of Section 87.
12. As the Chapter headings themselves show, there is a neat distinction between the powers of the police to investigate
and jurisdiction of the criminal courts in inquiries-followed by the procedure once the trial itself begins. Section 156
deals with a police officer's power to investigate "cognizable cases". A "cognizable case" is defined Under Section 2(c) of
the Code of Criminal Procedure as follows:
"cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in
accordance with the First Schedule or under any other law for the time being in force, arrest without warrant.
The expression "complaint" is defined in Section 2(d) as follows:
"complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this
Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
"Inquiry" is defined in Section 2(g) as follows:
"inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;
"Investigation" is defined in Section 2(h) as follows:
"investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer
or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.
13. The statutory scheme contained in the Code of Criminal Procedure therefore puts "inquiry" and "trial" in water-tight
compartments, as the very definition of "inquiry" demonstrates. "Investigation" is for the purpose of collecting evidence
by a police officer, and otherwise by any person authorised by a Magistrate in this behalf, and also pertains to a stage
before the trial commences. Investigation which ultimately leads to a police report under the Code of Criminal

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Procedure is an investigation conducted by the police, and may be ordered in an inquiry made by the Magistrate himself
in "complaint" cases.
14. The erstwhile Code of Criminal Procedure, 1898 did not contain a provision by which the police were empowered to
conduct a further investigation in respect of an offence after a police report Under Section 173 has been forwarded to
the Magistrate. The Forty-First Law Commission Report (The Code of Criminal Procedure, 1898) forwarded to the
Ministry of Law in September 1969 (hereinafter referred to as the "Law Commission Report"), therefore, recommended
the addition of Sub-section (7) to Section 173 as it stood under the Code of Criminal Procedure, 1898 for the following
reasons:
14.23. A report Under Section 173 is normally the end of the investigation. Sometimes, however, the police officer after
submitting the report Under Section 173 comes upon evidence bearing on the guilt or innocence of the Accused. We
should have thought that the police officer can collect that evidence and send it to the magistrate concerned. It appears,
however, that courts have sometimes taken the narrow view that once a final report Under Section 173 has been sent,
the police cannot touch the case again and cannot re-open the investigation. This view places a hindrance in the way of
the investigating agency, which can be very unfair to the prosecution and, for that matter, even to the Accused. It should
be made clear in Section 173 that the competent police officer can examine such evidence and send a report to the
magistrate. Copies concerning the fresh material must of course be furnished to the Accused.
(emphasis supplied)
15. What is interesting to note is that the narrow view of some of the High Courts had placed a hindrance in the way of
the investigating agency, which can be very unfair to the prosecution as well as the Accused.
16. Article 21 of the Constitution of India makes it clear that the procedure in criminal trials must, after the seminal
decision in Mrs. Maneka Gandhi v. Union of India and Anr. MANU/SC/0133/1978 : (1978) 1 SCC 248, be "right, just
and fair and not arbitrary, fanciful or oppressive" (see paragraph 7 therein). Equally, in Commissioner of Police, Delhi v.
Registrar, Delhi High Court, New Delhi MANU/SC/0031/1997 : (1996) 6 SCC 323, it was stated that Article 21
enshrines and guarantees the precious right of life and personal liberty to a person which can only be deprived on
following the procedure established by law in a fair trial which assures the safety of the Accused. The assurance of a fair
trial is stated to be the first imperative of the dispensation of justice (see paragraph 16 therein).
17. It is clear that a fair trial must kick off only after an investigation is itself fair and just. The ultimate aim of all
investigation and inquiry, whether by the police or by the Magistrate, is to ensure that those who have actually
committed a crime are correctly booked, and those who have not are not arraigned to stand trial. That this is the minimal
procedural requirement that is the fundamental requirement of Article 21 of the Constitution of India cannot be
doubted. It is the hovering omnipresence of Article 21 over the Code of Criminal Procedure that must needs inform the
interpretation of all the provisions of the Code of Criminal Procedure, so as to ensure that Article 21 is followed both in
letter and in spirit.
18. Pooja Pal v. UOI MANU/SC/0071/2016 : (2016) 3 SCC 135 is an important judgment which speaks of the
fundamental right Under Article 21 of the Constitution in the context of the goal of "speedy trial" being tempered by
"fair trial". The Court put it thus:
83. A "speedy trial", albeit the essence of the fundamental right to life entrenched in Article 21 of the Constitution of
India has a companion in concept in "fair trial", both being inalienable constituents of an adjudicative process, to
culminate in a judicial decision by a court of law as the final arbiter. There is indeed a qualitative difference between right
to speedy trial and fair trial so much so that denial of the former by itself would not be prejudicial to the Accused, when
pitted against the imperative of fair trial. As fundamentally, justice not only has to be done but also must appear to have
been done, the residuary jurisdiction of a court to direct further investigation or reinvestigation by any impartial agency,
probe by the State Police notwithstanding, has to be essentially invoked if the statutory agency already in charge of the
investigation appears to have been ineffective or is presumed or inferred to be not being able to discharge its functions
fairly, meaningfully and fructuously. As the cause of justice has to reign supreme, a court of law cannot reduce itself to
be a resigned and a helpless spectator and with the foreseen consequences apparently unjust, in the face of a faulty
investigation, meekly complete the formalities to record a foregone conclusion. Justice then would become a casualty.
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Though a court's satisfaction of want of proper, fair, impartial and effective investigation eroding its credence and
reliability is the precondition for a direction for further investigation or reinvestigation, submission of the charge-sheet
ipso facto or the pendency of the trial can by no means be a prohibitive impediment. The contextual facts and the
attendant circumstances have to be singularly evaluated and analysed to decide the needfulness of further investigation
or reinvestigation to unravel the truth and mete out justice to the parties. The prime concern and the endeavour of the
court of law is to secure justice on the basis of true facts which ought to be unearthed through a committed, resolved
and a competent investigating agency.
xxx xxx xxx
86. A trial encompasses investigation, inquiry, trial, appeal and retrial i.e. the entire range of scrutiny including crime
detection and adjudication on the basis thereof. Jurisprudentially, the guarantee Under Article 21 embraces both the life
and liberty of the Accused as well as interest of the victim, his near and dear ones as well as of the community at large
and therefore, cannot be alienated from each other with levity. It is judicially acknowledged that fair trial includes fair
investigation as envisaged by Articles 20 and 21 of the Constitution of India. Though well-demarcated contours of crime
detection and adjudication do exist, if the investigation is neither effective nor purposeful nor objective nor fair, it would
be the solemn obligation of the courts, if considered necessary, to order further investigation or reinvestigation as the
case may be, to discover the truth so as to prevent miscarriage of the justice. No inflexible guidelines or hard-and-fast
Rules as such can be prescribed by way of uniform and universal invocation and the decision is to be conditioned to the
attendant facts and circumstances, motivated dominantly by the predication of advancement of the cause of justice.
19. With the introduction of Section 173(8) in the Code of Criminal Procedure, the police department has been armed
with the power to further investigate an offence even after a police report has been forwarded to the Magistrate. Quite
obviously, this power continues until the trial can be said to commence in a criminal case. The vexed question before us
is as to whether the Magistrate can order further investigation after a police report has been forwarded to him Under
Section 173.
20. It is interesting to note that even under the Code of Criminal Procedure, 1898, in Kamlapati Trivedi v. State of West
Bengal MANU/SC/0106/1978 : (1980) 2 SCC 91, this Court held as follows:
50. Sections 169 and 170 do not talk of the submission of any report by the police to the Magistrate, although they do
state what the police has to do short of such submission when it finds at the conclusion of the investigation (1) that
there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the Accused to a
Magistrate (Section 169) or (2) that there is sufficient evidence or reasonable ground as aforesaid (Section 170). In either
case the final report of the police is to be submitted to the Magistrate under Sub-section (1) of Section 173. Sub-section
(3) of that Section further provides that in the case of a report by the police that the Accused has been released on his
bond (which is the situation envisaged by Section 169), the Magistrate shall make "such order for the discharge of such
bond or otherwise as he thinks fit". Now what are the courses open to the Magistrate in such a situation? He may, as
held by this Court in Abhinandan Jha v. Dinesh Mishra [MANU/SC/0054/1967 : (1967) 3 SCR 668 : AIR 1968 SC 117
: 1968 Cri. LJ 97]:
(1) agree with the report of the police and file the proceedings; or
(2) not agree with the police report and
(a) order further investigation, or
(b) hold that the evidence is sufficient to justify the forwarding of the Accused to the Magistrate and take cognizance of
the offence complained of.
51. The appropriate course has to be decided upon after a consideration of the report and the application of the mind of
the Magistrate to the contents thereof. But then the problem to be solved is whether the order passed by the Magistrate
pertains to his executive or judicial capacity. In my opinion, the only order which can be regarded as having been passed
by the Magistrate in his capacity as the supervisory authority in relation to the investigation carried out by the police is
the one covered by the course 2(a). The order passed by the Magistrate in each of the other two courses, that is, (1) and
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(2)(b), follows a conclusion of the investigation and is a judicial order determining the rights of the parties (the State on
the one hand and the Accused on the other) after the application of his mind. And if that be so, the order passed by the
Magistrate in the proceeding before us must be characterised as a judicial act and therefore as one performed in his
capacity as a Court.
21. What is recognised by this decision is that in the circumstance that the Magistrate does not agree with the police
report, he may order further investigation-which is done in his capacity as a supervisory authority in relation to
investigation carried out by the police.
22. Indeed, Section 156(3) has remained unchanged even after the advent of the Code of Criminal Procedure of 1973.
Thus, in State of Bihar v. J.A.C. Saldhana and Ors. MANU/SC/0253/1979 : (1980) 1 SCC 554, this Court held:
19. The power of the Magistrate Under Section 156(3) to direct further investigation is clearly an independent power and
does not stand in conflict with the power of the State Government as spelt out hereinbefore. The power conferred upon
the Magistrate Under Section 156(3) can be exercised by the Magistrate even after submission of a report by the
investigating officer which would mean that it would be open to the Magistrate not to accept the conclusion of the
investigating officer and direct further investigation. This provision does not in any way affect the power of the
investigating officer to further investigate the case even after submission of the report as provided in Section 173(8).
Likewise, in Sakiri Vasu v. State of U.P. and Ors. MANU/SC/8179/2007 : (2008) 2 SCC 409, this Court held:
12. Thus in Mohd. Yousuf v. Afaq Jahan [MANU/SC/8888/2006 : (2006) 1 SCC 627 : (2006) 1 SCC (Cri.) 460 : JT
(2006) 1 SC 10] this Court observed: (SCC p. 631, para 11)
11. The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order
investigation Under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he
was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open
to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an
FIR involves only the process of entering the substance of the information relating to the commission of the cognizable
offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a
Magistrate does not say in so many words while directing investigation Under Section 156(3) of the Code that an FIR
should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the
cognizable offence disclosed by the complainant because that police officer could take further steps contemplated in
Chapter XII of the Code only thereafter.
13. The same view was taken by this Court in Dilawar Singh v. State of Delhi [MANU/SC/3678/2007 : (2007) 12 SCC
641 : JT (2007) 10 SC 585] (JT vide para 17). We would further clarify that even if an FIR has been registered and even if
the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not
proper, such a person can approach the Magistrate Under Section 156(3) Code of Criminal Procedure, and if the
Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order(s) as he
thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys Under Section 156(3) Code of
Criminal Procedure.
14. Section 156(3) states:
156. (3) Any Magistrate empowered Under Section 190 may order such an investigation as abovementioned.
The words "as abovementioned" obviously refer to Section 156(1), which contemplates investigation by the officer in
charge of the police station.
15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Code of
Criminal Procedure In cases where the Magistrate finds that the police has not done its duty of investigating the case at
all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can
monitor the same.

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16. The power in the Magistrate to order further investigation Under Section 156(3) is an independent power and does
not affect the power of the investigating officer to further investigate the case even after submission of his report vide
Section 173(8). Hence the Magistrate can order reopening of the investigation even after the police submits the final
report, vide State of Bihar v. J.A.C. Saldanha [MANU/SC/0253/1979 : (1980) 1 SCC 554 : 1980 SCC (Cri.) 272 : AIR
1980 SC 326] (SCC: AIR para 19).
17. In our opinion Section 156(3) Code of Criminal Procedure is wide enough to include all such powers in a Magistrate
which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of
ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being
done by the police. Section 156(3) Code of Criminal Procedure, though briefly worded, in our opinion, is very wide and
it will include all such incidental powers as are necessary for ensuring a proper investigation.
18. It is well settled that when a power is given to an authority to do something it includes such incidental or implied
powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the
statute, there is impliedly included in the grant, even without special mention, every power and every control the denial
of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the
power of doing all such acts or employ such means as are essentially necessary for its execution.
23. It is thus clear that the Magistrate's power Under Section 156(3) of the Code of Criminal Procedure is very wide, for
it is this judicial authority that must be satisfied that a proper investigation by the police takes place. To ensure that a
"proper investigation" takes place in the sense of a fair and just investigation by the police-which such Magistrate is to
supervise-Article 21 of the Constitution of India mandates that all powers necessary, which may also be incidental or
implied, are available to the Magistrate to ensure a proper investigation which, without doubt, would include the
ordering of further investigation after a report is received by him Under Section 173(2); and which power would
continue to enure in such Magistrate at all stages of the criminal proceedings until the trial itself commences. Indeed,
even textually, the "investigation" referred to in Section 156(1) of the Code of Criminal Procedure would, as per the
definition of "investigation" Under Section 2(h), include all proceedings for collection of evidence conducted by a police
officer; which would undoubtedly include proceedings by way of further investigation Under Section 173(8) of the Code
of Criminal Procedure.
24. However, Shri Basant relied strongly on a Three Judge Bench judgment in Devarapalli Lakshminarayana Reddy and
Ors. v. V. Narayana Reddy and Ors. MANU/SC/0108/1976 : (1976) 3 SCC 252. This judgment, while deciding whether
the first proviso to Section 202 (1) of the Code of Criminal Procedure was attracted on the facts of that case, held:
17. Section 156(3) occurs in Chapter XII, under the caption: "Information to the Police and their powers to investigate";
while Section 202 is in Chapter XV which bears the heading: "Of complaints to Magistrates". The power to order police
investigation Under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The
two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the
post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the
commission of a cognizable offence, the power Under Section 156(3) can be invoked by the Magistrate before he takes
cognizance of the offence Under Section 190(1)(a). But if he once takes such cognizance and embarks upon the
procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section
156(3). It may be noted further that an order made under Sub-section (3) of Section 156, is in the nature of a peremptory
reminder or intimation to the police to exercise their plenary powers of investigation Under Section 156(1). Such an
investigation embraces the entire continuous process which begins with the collection of evidence Under Section 156
and ends with a report or charge-sheet Under Section 173. On the other hand, Section 202 comes in at a stage when
some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed
insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is
empowered Under Section 202 to direct, within the limits circumscribed by that Section an investigation "for the
purpose of deciding whether or not there is sufficient ground for proceeding". Thus the object of an investigation Under
Section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already
instituted upon a complaint before him.
This judgment was then followed in Tula Ram and Ors. v. Kishore Singh MANU/SC/0163/1977 : (1977) 4 SCC 459 at
paragraphs 11 and 15.

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25. Whereas it is true that Section 156(3) remains unchanged even after the 1973 Code has been brought into force, yet
the 1973 Code has one very important addition, namely, Section 173(8), which did not exist under the 1898 Code. As we
have noticed earlier in this judgment, Section 2(h) of the 1973 Code of Criminal Procedure defines "investigation" in the
same terms as the earlier definition contained in Section 2(l) of the 1898 Code of Criminal Procedure with this
difference-that "investigation" after the 1973 Code has come into force will now include all the proceedings under the
Code of Criminal Procedure for collection of evidence conducted by a police officer. "All" would clearly include
proceedings Under Section 173(8) as well. Thus, when Section 156(3) states that a Magistrate empowered Under Section
190 may order "such an investigation", such Magistrate may also order further investigation Under Section 173(8), regard
being had to the definition of "investigation" contained in Section 2(h).
26. Section 2(h) is not noticed by the aforesaid judgment at all, resulting in the erroneous finding in law that the power
Under Section 156(3) can only be exercised at the pre-cognizance stage. The "investigation" spoken of in Section 156(3)
would embrace the entire process, which begins with the collection of evidence and continues until charges are framed
by the Court, at which stage the trial can be said to have begun. For these reasons, the statement of the law contained in
paragraph 17 in Devarapalli Lakshminarayana Reddy (supra) cannot be relied upon.
27. Ram Lal Narang v. State (Delhi Administration) MANU/SC/0216/1979 : (1979) 2 SCC 322, is an early judgment
which deals with the power contained in Section 173(8) after a charge-sheet is filed. This Court adverted to the Law
Commission Report and to a number of judgments which recognised the right of the police to make repeated
investigations under the Code of Criminal Procedure, 1898. It then quoted the early Supreme Court judgment in H.N.
Rishbud v. State of Delhi MANU/SC/0049/1954 : AIR 1955 SC 196 case as follows:
17. In H.N. Rishbud v. State of Delhi [MANU/SC/0049/1954 : AIR 1955 SC 196 : (1955) 1 SCR 1150 : 1955 Cri. LJ
526] this Court contemplated the possibility of further investigation even after a Court had taken cognizance of the case.
While noticing that a police report resulting from an investigation was provided in Section 190 Code of Criminal
Procedure as the material on which cognizance was taken, it was pointed out that it could not be maintained that a valid
and legal police report was the foundation of the jurisdiction of the court to take cognizance. It was held that where
cognizance of the case had, in fact, been taken and the case had proceeded to termination, the invalidity of the precedent
investigation did not vitiate the result unless miscarriage of justice had been caused thereby. It was said that a defect or
illegality in investigation, however serious, had no direct bearing on the competence of the procedure relating to
cognizance or trial. However, it was observed:
It does not follow that the invalidity of the investigation is to be completely ignored by a Court during trial. When the
breach of such mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court,
while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by
ordering such re-investigation as the circumstances of an individual case may call for.
This decision is a clear authority for the view that further investigation is not altogether ruled out merely because
cognizance of the case has been taken by the court; defective investigation coming to light during the course of a trial
may be cured by a further investigation, if circumstances permit it.
The Court then went on to hold:
20. Anyone acquainted with the day-to-day working of the criminal courts will be alive to the practical necessity of the
police possessing the power to make further investigation and submit a supplemental report. It is in the interests of both
the prosecution and the defence that the police should have such power. It is easy to visualise a case where fresh material
may come to light which would implicate persons not previously Accused or absolve persons already Accused. When it
comes to the notice of the investigating agency that a person already Accused of an offence has a good alibi, is it not the
duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate? After all the
investigating agency has greater resources at its command than a private individual. Similarly, where the involvement of
persons who are not already Accused comes to the notice of the investigating agency, the investigating agency cannot
keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the
Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future
course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the
offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered

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to be involved and deal with all the Accused in a single enquiry or trial. If the case of which he has previously taken
cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the
newly involved Accused and proceed with the case as a separate case. What action a Magistrate is to take in accordance
with the provisions of the Code of Criminal Procedure in such situations is a matter best left to the discretion of the
Magistrate. The criticism that a further investigation by the police would trench upon the proceeding before the court is
really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with
the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the
power of the police to make further investigation. We should not, however, be understood to say that the police should
ignore the pendency of a proceeding before a court and investigate every fresh fact that comes to light as if no
cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the
magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of
the comity of the various agencies and institutions entrusted with different stages of such administration, it would
ordinarily be desirable that the police should inform the court and seek formal permission to make further investigation
when fresh facts come to light.
21. As observed by us earlier, there was no provision in the Code of Criminal Procedure, 1898 which, expressly or by
necessary implication, barred the right of the police to further investigate after cognizance of the case had been taken by
the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate
was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of
authority, permitted repeated investigations on discovery of fresh facts. In our view, notwithstanding that a Magistrate
had taken cognizance of the offence upon a police report submitted Under Section 173 of the 1898 Code, the right of
the police to further investigate was not exhausted and the police could exercise such right as often as necessary when
fresh information came to light. Where the police desired to make a further investigation, the police could express their
regard and respect for the court by seeking its formal permission to make further investigation.
(emphasis supplied)
28. In Union Public Service Commission v. S. Papaiah MANU/SC/0961/1997 : (1997) 7 SCC 614, this Court dealt with
a case in which the Central Bureau of Investigation (hereinafter referred to as the "CBI") had submitted a closure report.
It then quoted from a Three Judge Bench judgment in Bhagwant Singh v. Commissioner of Police and Anr.
MANU/SC/0063/1985 : (1985) 2 SCC 357, in which this Court stated that a Magistrate, in dealing with a report from
the police Under Section 173, can adopt one of three courses-(1) he may accept the report and drop the proceedings; or
(2) he may disagree with the report, take cognizance of the offence and issue process; or (3) he may direct further
investigation to be made by the police Under Section 156(3). The Court then went on to hold that where objections
have been furnished by the complainant, i.e. the Union Public Service Commission, against the closure report of the
police, the Magistrate could, in exercise of powers Under Section 173(8) of the Code of Criminal Procedure, direct the
CBI to further investigate the case and collect further evidence keeping in view the objections raised by the complainant
(see paragraph 13 therein).
29. Hasanbhai Valibhai Qureshi v. State of Gujarat and Ors. MANU/SC/0302/2004 : (2004) 5 SCC 347 is an important
judgment which deals with the necessity for further investigation being balanced with the delaying of a criminal
proceeding. If there is a necessity for further investigation when fresh facts come to light, then the interest of justice is
paramount and trumps the need to avoid any delay being caused to the proceeding. The Court therefore held:
11. Coming to the question whether a further investigation is warranted, the hands of the investigating agency or the
court should not be tied down on the ground that further investigation may delay the trial, as the ultimate object is to
arrive at the truth.
12. Sub-section (8) of Section 173 of the Code permits further investigation, and even dehors any direction from the
court as such, it is open to the police to conduct proper investigation, even after the court took cognisance of any
offence on the strength of a police report earlier submitted. All the more so, if as in this case, the Head of the Police
Department also was not satisfied of the propriety or the manner and nature of investigation already conducted.
13. In Ram Lal Narang v. State (Delhi Admn.) [MANU/SC/0216/1979 : (1979) 2 SCC 322 : 1979 SCC (Cri.) 479 : AIR
1979 SC 1791] it was observed by this Court that further investigation is not altogether ruled out merely because

Page 194
cognisance has been taken by the court. When defective investigation comes to light during course of trial, it may be
cured by further investigation, if circumstances so permitted. It would ordinarily be desirable and all the more so in this
case, that the police should inform the court and seek formal permission to make further investigation when fresh facts
come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective
trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary
as an expeditious disposal of the matter by the courts. In view of the aforesaid position in law, if there is necessity for
further investigation, the same can certainly be done as prescribed by law. The mere fact that there may be further delay
in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the
truth and do real and substantial as well as effective justice. We make it clear that we have not expressed any final
opinion on the merits of the case.1
30. In Hemant Dhasmana v. CBI and Anr. MANU/SC/0459/2001 : (2007) 1 SCC 536, this Court followed Papaiah
(supra) and held:
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 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.
17. In Bhagwant Singh v. Commr. of Police [MANU/SC/0063/1985 : (1985) 2 SCC 537 : 1985 SCC (Cri.) 267] a three-
Judge Bench of this Court has said, though in a slightly different context, that three options are open to the court on
receipt of a report Under Section 173(2) of the Code, when such report states that no offence has been committed by
the persons Accused in the complaint. They are: (SCC p. 542, para 4)
(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.
18. Another three-Judge Bench in India Carat (P) Ltd. v. State of Karnataka [MANU/SC/0349/1989 : (1989) 2 SCC 132
: 1989 SCC (Cri.) 306] has stated thus: (SCC pp. 139-40, para 16)
16. The position is, therefore, now well settled that upon receipt of a police report Under Section 173(2) a Magistrate is
entitled to take cognizance of an offence Under Section 190(1)(b) of the Code even if the police report is to the effect
that no case is made out against the Accused. The Magistrate can take into account the statements of the witnesses
examined by the police during the investigation and take cognizance of the offence complained of and order the issue of
process to the Accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if
the investigating officer gives an opinion that the investigation has made out a case against the Accused. The Magistrate
can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging
from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers Under Section 190(1)(b)
and direct the issue of process to the Accused.
19. In Union Public Service Commission v. S. Papaiah [MANU/SC/0961/1997 : (1997) 7 SCC 614 : 1997 SCC (Cri.)
1112] a two-Judge Bench considered the scope of Section 173(8) of the Code in extenso. Dr. A.S. Anand, J. (as the
learned Chief Justice then was) after extracting Section 173(8) of the Code has observed thus: (SCC pp. 620-21, para 13)
Page 195
The Magistrate could, thus in exercise of the powers Under Section 173(8) Code of Criminal Procedure direct the CBI to
'further investigate' the case and collect further evidence keeping in view the objections raised by the Appellant to the
investigation and the 'new' report to be submitted by the investigating officer would be governed by Sub-sections (2) to
(6) of Section 173 Code of Criminal Procedure.
31. In Samaj Parivartan Samudaya (supra), a Three Judge Bench of this Court, while dealing with illegal mining in
Andhra Pradesh and Karnataka, issued directions to the CBI to investigate the entire matter (despite private complaints
already pending and being investigated by one or other competent Court or investigation agency), as a Central
Empowered Committee Report disclosed fresh facts as to illegal mining in these States. In a review of the machinery of
criminal investigations under the Code of Criminal Procedure, this Court held:
27. Once the investigation is conducted in accordance with the provisions of Code of Criminal Procedure, a police
officer is bound to file a report before the court of competent jurisdiction, as contemplated Under Section 173 Code of
Criminal Procedure, upon which the Magistrate can proceed to try the offence, if the same were triable by such court or
commit the case to the Court of Session. It is significant to note that the provisions of Section 173(8) Code of Criminal
Procedure open with non obstante language that nothing in the provisions of Sections 173(1) to 173(7) shall be deemed
to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the
Magistrate. Thus, Under Section 173(8), where charge-sheet has been filed, that court also enjoys the jurisdiction to
direct further investigation into the offence. (Ref. Hemant Dhasmana v. CBI [MANU/SC/0459/2001 : (2001) 7 SCC
536 : 2001 SCC (Cri.) 1280].) This power cannot have any inhibition including such requirement as being obliged to hear
the Accused before any such direction is made.
xxx xxx xxx
29. While the trial court does not have inherent powers like those of the High Court Under Section 482 Code of
Criminal Procedure or the Supreme Court Under Article 136 of the Constitution of India, such that it may order for
complete reinvestigation or fresh investigation of a case before it, however, it has substantial powers in exercise of
discretionary jurisdiction Under Sections 311 and 391 Code of Criminal Procedure In cases where cognizance has been
taken and where a substantial portion of investigation/trial has already been completed and where a direction for further
examination would have the effect of delaying the trial, if the trial court is of the opinion that the case has been made
out for alteration of charge, etc. it may exercise such powers without directing further investigation. (Ref. Sasi Thomas v.
State [MANU/SC/8712/2006 : (2006) 12 SCC 421 : (2007) 2 SCC (Cri.) 72].)
30. Still in another case, taking the aid of the doctrine of implied power, this Court has also stated that an express grant
of statutory power carries with it, by necessary implication, the authority to use all reasonable means to make such
statutory power effective. Therefore, absence of statutory provision empowering the Magistrate to direct registration of
an FIR would not be of any consequence and the Magistrate would nevertheless be competent to direct registration of
an FIR. (Ref. Sakiri Vasu v. State of U.P. [MANU/SC/8179/2007 : (2008) 2 SCC 409 : (2008) 1 SCC (Cri.) 440])
31. Thus, Code of Criminal Procedure leaves clear scope for conducting of further inquiry and filing of a supplementary
charge-sheet, if necessary, with such additional facts and evidence as may be collected by the investigating officer in
terms of sub-sections (2) to (6) of Section 173 Code of Criminal Procedure to the court. To put it aptly, further
investigation by the investigating agency, after presentation of a challan (charge-sheet in terms of Section 173 Code of
Criminal Procedure) is permissible in any case impliedly but in no event is impermissible.
xxx xxx xxx
37. We may notice that the investigation of a case or filing of charge-sheet in a case does not by itself bring the absolute
end to exercise of power by the investigating agency or by the court. Sometimes and particularly in the matters of the
present kind, the investigating agency has to keep its options open to continue with the investigation, as certain other
relevant facts, incriminating materials and even persons, other than the persons stated in the FIR as Accused, might be
involved in the commission of the crime. The basic purpose of an investigation is to bring out the truth by conducting
fair and proper investigation, in accordance with law and ensure that the guilty are punished.

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32. In Gulzar Ahmed Azmi v. Union of India and Ors. MANU/SC/0847/2012 : (2012) 10 SCC 731, this Court, while
rejecting an argument that further investigation by the police should be entrusted with a supernumerary body created
under the head of a retired Supreme Court Judge along with other officers and experts, held that if further investigation
is sought Under Section 173(8) of Code of Criminal Procedure, the same can always be effected even after the filing of
the final report.
33. We now come to the decision in Vinay Tyagi v. Irshad Ali and Ors. MANU/SC/1101/2012 : (2013) 5 SCC 762. This
is another case that arose out of a CBI report to the Magistrate, which requested for closure of the case against the
Accused. The judgment of the Court first discussed in detail how the criminal investigative machinery is set into motion
right until the stage at which the trial begins. The Court then held:
20. Having noticed the provisions and relevant part of the scheme of the Code, now we must examine the powers of the
court to direct investigation. Investigation can be ordered in varied forms and at different stages. Right at the initial stage
of receiving the FIR or a complaint, the court can direct investigation in accordance with the provisions of Section
156(1) in exercise of its powers Under Section 156(3) of the Code. Investigation can be of the following kinds:
(i) Initial investigation,
(ii) Further investigation,
(iii) Fresh or de novo or reinvestigation.
Thereafter, the question with which we are faced was directly tackled as follows:
29. Now, we come to the former question i.e. whether the Magistrate has jurisdiction Under Section 173(8) to direct
further investigation.
xxx xxx xxx
32. In Minu Kumari v. State of Bihar [MANU/SC/8098/2006 : (2006) 4 SCC 359 : (2006) 2 SCC (Cri.) 310] (SCC pp.
363-64, para 11), this Court explained the powers that are vested in a Magistrate upon filing of a report in terms of
Section 173(2)(i) and the kind of order that the court can pass. The Court held that when a report is filed before a
Magistrate, he may either (i) accept the report and take cognizance of the offences and issue process; or (ii) may disagree
with the report and drop the proceedings; or (iii) may direct further investigation Under Section 156(3) and require the
police to make a further report.
33. This judgment, thus, clearly shows that the Court of Magistrate has a clear power to direct further investigation when
a report is filed Under Section 173(2) and may also exercise such powers with the aid of Section 156(3) of the Code. The
lurking doubt, if any, that remained in giving wider interpretation to Section 173(8) was removed and controversy put to
an end by the judgment of this Court in Hemant Dhasmana v. CBI [MANU/SC/0459/2001 : (2001) 7 SCC 536 : 2001
SCC (Cri.) 1280] where the Court held that although the said Section does not, in specific terms, mention the power 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 the court, which has the jurisdiction
to do so, then such order should not even be interfered with in exercise of a higher court's revisional jurisdiction. Such
orders would normally be of an advantage to achieve the ends of justice. It was clarified, without ambiguity, that the
Magistrate, in exercise of powers Under Section 173(8) of the Code can direct CBI to further investigate the case and
collect further evidence keeping in view the objections raised by the Appellant to the investigation and the new report to
be submitted by the investigating officer, would be governed by Sub-section (2) to Sub-section (6) of Section 173 of the
Code. There is no occasion for the Court to interpret Section 173(8) of the Code restrictively. After filing of the final
report, the learned Magistrate can also take cognizance on the basis of the material placed on record by the investigating
agency and it is permissible for him to direct further investigation. Conduct of proper and fair investigation is the
hallmark of any criminal investigation.

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34. In support of these principles reference can be made to the judgments of this Court in UPSC v. S. Papaiah
[MANU/SC/0961/1997 : (1997) 7 SCC 614 : 1997 SCC (Cri.) 1112], State of Orissa v. Mahima
[MANU/SC/0955/2002 : (2007) 15 SCC 580 : (2010) 3 SCC (Cri.) 611 : (2003) 5 Scale 566], Kishan Lal v. Dharmendra
Bafna [MANU/SC/1296/2009 : (2009) 7 SCC 685 : (2009) 3 SCC (Cri.) 611], State of Maharashtra v. Sharadchandra
Vinayak Dongre [MANU/SC/0557/1995 : (1995) 1 SCC 42 : 1995 SCC (Cri.) 16].
35. We may also notice here that in S. Papaiah [MANU/SC/0961/1997 : (1997) 7 SCC 614 : 1997 SCC (Cri.) 1112], the
Magistrate had rejected an application for reinvestigation filed by the Applicant primarily on the ground that it had no
power to review the order passed earlier. This Court held that it was not a case of review of an order, but was a case of
further investigation as contemplated Under Section 173 of the Code. It permitted further investigation and directed the
report to be filed.
36. Interestingly and more particularly for answering the question of legal academia that we are dealing with, it may be
noticed that this Court, while pronouncing its judgment in Hemant Dhasmana v. CBI [MANU/SC/0459/2001 : (2001)
7 SCC 536 : 2001 SCC (Cri.) 1280] has specifically referred to the judgments S. Papaiah [MANU/SC/0961/1997 : (1997)
7 SCC 614 : 1997 SCC (Cri.) 1112] and Bhagwant Singh v. Commr. of Police [Bhagwant Singh v. Commr. of Police,
MANU/SC/0063/1985 : (1985) 2 SCC 537 : 1985 SCC (Cri.) 267]. While relying upon the three-Judge Bench judgment
of Bhagwant Singh [Bhagwant Singh v. Commr. of Police, MANU/SC/0063/1985 : (1985) 2 SCC 537 : 1985 SCC (Cri.)
267], which appears to be a foundational view for development of law in relation to Section 173 of the Code, the Court
held that the Magistrate could pass an order for further investigation. The principal question in that case was whether the
Magistrate could drop the proceedings after filing of a report Under Section 173(2), without notice to the complainant,
but in para 4 of the judgment, the three-Judge Bench dealt with the powers of the Magistrate as enshrined in Section 173
of the Code...
37. In some judgments of this Court, a view has been advanced, [amongst others in Reeta Nag v. State of W.B. [Reeta
Nag v. State of W.B., MANU/SC/1486/2009 : (2009) 9 SCC 129 : (2009) 3 SCC (Cri.) 1051], Ram Naresh Prasad v.
State of Jharkhand [Ram Naresh Prasad v. State of Jharkhand, MANU/SC/0201/2009 : (2009) 11 SCC 299 : (2009) 3
SCC (Cri.) 1336. Ed.: Ram Naresh case does not seem to indicate that the Magistrate cannot suo motu direct further
investigation: rather it seems to indicate that the Magistrate in fact can do so.] and Randhir Singh Rana v. State (Delhi
Admn.) [Randhir Singh Rana v. State (Delhi Admn.), MANU/SC/0161/1997 : (1997) 1 SCC 361] ] that a Magistrate
cannot suo motu direct further investigation Under Section 173(8) of the Code or direct reinvestigation into a case on
account of the bar contained in Section 167(2) of the Code, and that a Magistrate could direct filing of a charge-sheet
where the police submits a report that no case had been made out for sending up an Accused for trial. The gist of the
view taken in these cases is that a Magistrate cannot direct reinvestigation and cannot suo motu direct further
investigation.
38. However, having given our considered thought to the principles stated in these judgments, we are of the view that
the Magistrate before whom a report Under Section 173(2) of the Code is filed, is empowered in law to direct "further
investigation" and require the police to submit a further or a supplementary report. A three-Judge Bench of this Court in
Bhagwant Singh [Bhagwant Singh v. Commr. of Police, MANU/SC/0063/1985 : (1985) 2 SCC 537 : 1985 SCC (Cri.)
267] has, in no uncertain terms, stated that principle, as aforenoticed.
39. The contrary view taken by the Court in Reeta Nag [Reeta Nag v. State of W.B., MANU/SC/1486/2009 : (2009) 9
SCC 129 : (2009) 3 SCC (Cri.) 1051] and Randhir Singh [Randhir Singh Rana v. State (Delhi Admn.),
MANU/SC/0161/1997 : (1997) 1 SCC 361] do not consider the view of this Court expressed in Bhagwant Singh
[Bhagwant Singh v. Commr. of Police, MANU/SC/0063/1985 : (1985) 2 SCC 537 : 1985 SCC (Cri.) 267]. The decision
of the Court in Bhagwant Singh [Bhagwant Singh v. Commr. of Police, MANU/SC/0063/1985 : (1985) 2 SCC 537 :
1985 SCC (Cri.) 267] in regard to the issue in hand cannot be termed as an obiter. The ambit and scope of the power of
a Magistrate in terms of Section 173 of the Code was squarely debated before that Court and the three-Judge Bench
concluded as aforenoticed. Similar views having been taken by different Benches of this Court while following Bhagwant
Singh [Bhagwant Singh v. Commr. of Police, MANU/SC/0063/1985 : (1985) 2 SCC 537 : 1985 SCC (Cri.) 267], are thus
squarely in line with the doctrine of precedent. To some extent, the view expressed in Reeta Nag [Reeta Nag v. State of
W.B., MANU/SC/1486/2009 : (2009) 9 SCC 129 : (2009) 3 SCC (Cri.) 1051], Ram Naresh [Ram Naresh Prasad v. State
of Jharkhand, MANU/SC/0201/2009 : (2009) 11 SCC 299 : (2009) 3 SCC (Cri.) 1336. Ed.: Ram Naresh case does not
seem to indicate that the Magistrate cannot suo motu direct further investigation: rather it seems to indicate that the

Page 198
Magistrate in fact can do so.] and Randhir Singh [Randhir Singh Rana v. State (Delhi Admn.), MANU/SC/0161/1997 :
(1997) 1 SCC 361], besides being different on facts, would have to be examined in light of the principle of stare decisis.
40. Having analysed the provisions of the Code and the various judgments as aforeindicated, we would state the
following conclusions in regard to the powers of a Magistrate in terms of Section 173(2) read with Section 173(8) and
Section 156(3) of the Code:
40.1. The Magistrate has no power to direct "reinvestigation" or "fresh investigation" (de novo) in the case initiated on
the basis of a police report.
40.2. A Magistrate has the power to direct "further investigation" after filing of a police report in terms of Section 173(6)
of the Code.
40.3. The view expressed in Sub-para 40.2 above is in conformity with the principle of law stated in Bhagwant Singh case
[Bhagwant Singh v. Commr. of Police, MANU/SC/0063/1985 : (1985) 2 SCC 537 : 1985 SCC (Cri.) 267] by a three-
Judge Bench and thus in conformity with the doctrine of precedent.
40.4. Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the
Magistrate. The language of Section 173(2) cannot be construed so restrictively as to deprive the Magistrate of such
powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such
power would have to be read into the language of Section 173(8).
40.5. The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice
and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further
investigation to the police even after filing a report, but intended to curtail the power of the court to the extent that even
where the facts of the case and the ends of justice demand, the court can still not direct the investigating agency to
conduct further investigation which it could do on its own.
40.6. It has been a procedure of propriety that the police has to seek permission of the court to continue "further
investigation" and file supplementary charge-sheet. This approach has been approved by this Court in a number of
judgments. This as such would support the view that we are taking in the present case.
xxx xxx xxx
48. What ultimately is the aim or significance of the expression "fair and proper investigation" in criminal jurisprudence?
It has a twin purpose: Firstly, the investigation must be unbiased, honest, just and in accordance with law; secondly, the
entire emphasis on a fair investigation has to be to bring out the truth of the case before the court of competent
jurisdiction. Once these twin paradigms of fair investigation are satisfied, there will be the least requirement for the court
of law to interfere with the investigation, much less quash the same, or transfer it to another agency. Bringing out the
truth by fair and investigative means in accordance with law would essentially repel the very basis of an unfair, tainted
investigation or cases of false implication. Thus, it is inevitable for a court of law to pass a specific order as to the fate of
the investigation, which in its opinion is unfair, tainted and in violation of the settled principles of investigative canons.
49. Now, we may examine another significant aspect which is how the provisions of Section 173(8) have been
understood and applied by the courts and investigating agencies. It is true that though there is no specific requirement in
the provisions of Section 173(8) of the Code to conduct "further investigation" or file supplementary report with the
leave of the court, the investigating agencies have not only understood but also adopted it as a legal practice to seek
permission of the courts to conduct "further investigation" and file "supplementary report" with the leave of the court.
The courts, in some of the decisions, have also taken a similar view. The requirement of seeking prior leave of the court
to conduct "further investigation" and/or to file a "supplementary report" will have to be read into, and is a necessary
implication of the provisions of Section 173(8) of the Code. The doctrine of contemporanea expositio will fully come to
the aid of such interpretation as the matters which are understood and implemented for a long time, and such practice
that is supported by law should be accepted as part of the interpretative process.

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50. Such a view can be supported from two different points of view: firstly, through the doctrine of precedent, as
aforenoticed, since quite often the courts have taken such a view, and, secondly, the investigating agencies which have
also so understood and applied the principle. The matters which are understood and implemented as a legal practice and
are not opposed to the basic Rule of law would be good practice and such interpretation would be permissible with the
aid of doctrine of contemporanea expositio. Even otherwise, to seek such leave of the court would meet the ends of
justice and also provide adequate safeguard against a suspect/Accused.
51. We have already noticed that there is no specific embargo upon the power of the learned Magistrate to direct
"further investigation" on presentation of a report in terms of Section 173(2) of the Code. Any other approach or
interpretation would be in contradiction to the very language of Section 173(8) and the scheme of the Code for giving
precedence to proper administration of criminal justice. The settled principles of criminal jurisprudence would support
such approach, particularly when in terms of Section 190 of the Code, the Magistrate is the competent authority to take
cognizance of an offence. It is the Magistrate who has to decide whether on the basis of the record and documents
produced, an offence is made out or not, and if made out, what course of law should be adopted in relation to committal
of the case to the court of competent jurisdiction or to proceed with the trial himself. In other words, it is the judicial
conscience of the Magistrate which has to be satisfied with reference to the record and the documents placed before him
by the investigating agency, in coming to the appropriate conclusion in consonance with the principles of law. It will be a
travesty of justice, if the court cannot be permitted to direct "further investigation" to clear its doubt and to order the
investigating agency to further substantiate its charge-sheet. The satisfaction of the learned Magistrate is a condition
precedent to commencement of further proceedings before the court of competent jurisdiction. Whether the Magistrate
should direct "further investigation" or not is again a matter which will depend upon the facts of a given case. The
learned Magistrate or the higher court of competent jurisdiction would direct "further investigation" or "reinvestigation"
as the case may be, on the facts of a given case. Where the Magistrate can only direct further investigation, the courts of
higher jurisdiction can direct further, reinvestigation or even investigation de novo depending on the facts of a given
case. It will be the specific order of the court that would determine the nature of investigation. In this regard, we may
refer to the observations made by this Court in Sivanmoorthy v. State [MANU/SC/2040/2009 : (2010) 12 SCC 29 :
(2011) 1 SCC (Cri.) 295].
34. A Bench of 5 learned Judges of this Court in Hardeep Singh v. State of Punjab and Ors. MANU/SC/0025/2014 :
(2014) 3 SCC 92 was faced with a question regarding the circumstances under which the power Under Section 319 of
the Code could be exercised to add a person as being Accused of a criminal offence. In the course of a learned judgment
answering the aforesaid question, this Court first adverted to the constitutional mandate Under Article 21 of the
Constitution as follows:
8. The constitutional mandate Under Articles 20 and 21 of the Constitution of India provides a protective umbrella for
the smooth administration of justice making adequate provisions to ensure a fair and efficacious trial so that the Accused
does not get prejudiced after the law has been put into motion to try him for the offence but at the same time also gives
equal protection to victims and to society at large to ensure that the guilty does not get away from the clutches of law.
For the empowerment of the courts to ensure that the criminal administration of justice works properly, the law was
appropriately codified and modified by the legislature under Code of Criminal Procedure indicating as to how the courts
should proceed in order to ultimately find out the truth so that an innocent does not get punished but at the same time,
the guilty are brought to book under the law. It is these ideals as enshrined under the Constitution and our laws that
have led to several decisions, whereby innovating methods and progressive tools have been forged to find out the real
truth and to ensure that the guilty does not go unpunished.
In paragraph 34, this Court adverted to Common Cause v. Union of India MANU/SC/0362/1997 : (1996) 6 SCC 775,
and dealt with when trials before the Sessions Court; trials of warrant-cases; and trials of summons-cases by Magistrates
can be said to commence, as follows:
34. In Common Cause v. Union of India [MANU/SC/0362/1997 : (1996) 6 SCC 775 : 1997 SCC (Cri.) 42 : AIR 1997
SC 1539], this Court while dealing with the issue held: (SCC p. 776, para 1)
1. II (i) In cases of trials before the Sessions Court the trials shall be treated to have commenced when charges are framed
Under Section 228 of the Code of Criminal Procedure, 1973 in the cases concerned.

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(ii) In cases of trials of warrant cases by Magistrates if the cases are instituted upon police reports the trials shall be
treated to have commenced when charges are framed Under Section 240 of the Code of Criminal Procedure, 1973 while
in trials of warrant cases by Magistrates when cases are instituted otherwise than on police report such trials shall be
treated to have commenced when charges are framed against the Accused concerned Under Section 246 of the Code of Criminal
Procedure, 1973.
(iii) In cases of trials of summons cases by Magistrates the trials would be considered to have commenced when the
Accused who appear or are brought before the Magistrate are asked Under Section 251 whether they plead guilty or have
any defence to make.
(emphasis supplied)
The Court then concluded:
38. In view of the above, the law can be summarised to the effect that as "trial" means determination of issues adjudging
the guilt or the innocence of a person, the person has to be aware of what is the case against him and it is only at the
stage of framing of the charges that the court informs him of the same, the "trial" commences only on charges being
framed. Thus, we do not approve the view taken by the courts that in a criminal case, trial commences on cognizance
being taken.
35. Paragraph 39 of the judgment then referred to the "inquiry" stage of a criminal case as follows:
39. Section 2(g) Code of Criminal Procedure and the case laws referred to above, therefore, clearly envisage inquiry
before the actual commencement of the trial, and is an act conducted under Code of Criminal Procedure by the
Magistrate or the court. The word "inquiry" is, therefore, not any inquiry relating to the investigation of the case by the
investigating agency but is an inquiry after the case is brought to the notice of the court on the filing of the charge-sheet.
The court can thereafter proceed to make inquiries and it is for this reason that an inquiry has been given to mean
something other than the actual trial.
A clear distinction between "inquiry" and "trial" was thereafter set out in paragraph 54 as follows:
54. In our opinion, the stage of inquiry does not contemplate any evidence in its strict legal sense, nor could the
legislature have contemplated this inasmuch as the stage for evidence has not yet arrived. The only material that the
court has before it is the material collected by the prosecution and the court at this stage prima facie can apply its mind
to find out as to whether a person, who can be an Accused, has been erroneously omitted from being arraigned or has
been deliberately excluded by the prosecuting agencies. This is all the more necessary in order to ensure that the
investigating and the prosecuting agencies have acted fairly in bringing before the court those persons who deserve to be
tried and to prevent any person from being deliberately shielded when they ought to have been tried. This is necessary to
usher faith in the judicial system whereby the court should be empowered to exercise such powers even at the stage of
inquiry and it is for this reason that the legislature has consciously used separate terms, namely, inquiry or trial in Section
319 Code of Criminal Procedure.
36. Despite the aforesaid judgments, some discordant notes were sounded in three recent judgments. In Amrutbhai
Shambubhai Patel v. Sumanbhai Kantibai Patel MANU/SC/0104/2017 : (2017) 4 SCC 177, on the facts in that case, the
Appellant/Informant therein sought a direction Under Section 173(8) from the Trial Court for further investigation by
the police long after charges were framed against the Respondents at the culminating stages of the trial. The Court in its
ultimate conclusion was correct, in that, once the trial begins with the framing of charges, the stage of investigation or
inquiry into the offence is over, as a result of which no further investigation into the offence should be ordered. But
instead of resting its judgment on this simple fact, this Court from paragraphs 29 to 34 resuscitated some of the earlier
judgments of this Court, in which a view was taken that no further investigation could be ordered by the Magistrate in
cases where, after cognizance is taken, the Accused had appeared in pursuance of process being issued. In particular,
Devarapalli Lakshminarayana Reddy (supra) was strongly relied upon by the Court. We have already seen how this
judgment was rendered without adverting to the definition of "investigation" in Section 2(h) of the Code of Criminal
Procedure, and cannot therefore be relied upon as laying down the law on this aspect correctly. The Court therefore
concluded:
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49. On an overall survey of the pronouncements of this Court on the scope and purport of Section 173(8) of the Code
and the consistent trend of explication thereof, we are thus disposed to hold that though the investigating agency
concerned has been invested with the power to undertake further investigation desirably after informing the court
thereof, before which it had submitted its report and obtaining its approval, no such power is available therefor to the
learned Magistrate after cognizance has been taken on the basis of the earlier report, process has been issued and the
Accused has entered appearance in response thereto. At that stage, neither the learned Magistrate suo motu nor on an
application filed by the complainant/informant can direct further investigation. Such a course would be open only on
the request of the investigating agency and that too, in circumstances warranting further investigation on the detection of
material evidence only to secure fair investigation and trial, the life purpose of the adjudication in hand.
50. The unamended and the amended Sub-section (8) of Section 173 of the Code if read in juxtaposition, would
overwhelmingly attest that by the latter, the investigating agency/officer alone has been authorised to conduct further
investigation without limiting the stage of the proceedings relatable thereto. This power qua the investigating
agency/officer is thus legislatively intended to be available at any stage of the proceedings. The recommendation of the
Law Commission in its 41st Report which manifestly heralded the amendment, significantly had limited its proposal to
the empowerment of the investigating agency alone.
51. In contradistinction, Sections 156, 190, 200, 202 and 204 Code of Criminal Procedure clearly outline the powers of
the Magistrate and the courses open for him to chart in the matter of directing investigation, taking of cognizance,
framing of charge, etc. Though the Magistrate has the power to direct investigation Under Section 156(3) at the pre-
cognizance stage even after a charge-sheet or a closure report is submitted, once cognizance is taken and the Accused
person appears pursuant thereto, he would be bereft of any competence to direct further investigation either suo motu
or acting on the request or prayer of the complainant/informant. The direction for investigation by the Magistrate
Under Section 202, while dealing with a complaint, though is at a post-cognizance stage, it is in the nature of an inquiry
to derive satisfaction as to whether the proceedings initiated ought to be furthered or not. Such a direction for
investigation is not in the nature of further investigation, as contemplated Under Section 173(8) of the Code. If the
power of the Magistrate, in such a scheme envisaged by Code of Criminal Procedure to order further investigation even
after the cognizance is taken, the Accused persons appear and charge is framed, is acknowledged or approved, the same
would be discordant with the state of law, as enunciated by this Court and also the relevant layout of Code of Criminal
Procedure adumbrated hereinabove. Additionally had it been the intention of the legislature to invest such a power, in
our estimate, Section 173(8) Code of Criminal Procedure would have been worded accordingly to accommodate and
ordain the same having regard to the backdrop of the incorporation thereof. In a way, in view of the three options open
to the Magistrate, after a report is submitted by the police on completion of the investigation, as has been amongst
authoritatively enumerated in Bhagwant Singh [Bhagwant Singh v. Commr. of Police, MANU/SC/0063/1985 : (1985) 2
SCC 537 : 1985 SCC (Cri.) 267], the Magistrate, in both the contingencies, namely; when he takes cognizance of the
offence or discharges the Accused, would be committed to a course, whereafter though the investigating agency may for
good reasons inform him and seek his permission to conduct further investigation, he suo motu cannot embark upon
such a step or take that initiative on the request or prayer made by the complainant/informant. Not only such power to
the Magistrate to direct further investigation suo motu or on the request or prayer of the complainant/informant after
cognizance is taken and the Accused person appears, pursuant to the process, issued or is discharged is incompatible
with the statutory design and dispensation, it would even otherwise render the provisions of Sections 311 and 319 Code
of Criminal Procedure, whereunder any witness can be summoned by a court and a person can be issued notice to stand
trial at any stage, in a way redundant. Axiomatically, thus the impugned decision annulling the direction of the learned
Magistrate for further investigation is unexceptional and does not merit any interference. Even otherwise on facts,
having regard to the progression of the developments in the trial, and more particularly, the delay on the part of the
informant in making the request for further investigation, it was otherwise not entertainable as has been rightly held by
the High Court.
37. This judgment was followed in a recent Division Bench judgment of this Court in Athul Rao v. State of Karnataka
and Anr. MANU/SC/1017/2017 : (2018) 14 SCC 298 at paragraph 8. In Bikash Ranjan Rout v. State through the
Secretary (Home), Government of NCT of Delhi MANU/SC/0552/2019 : (2019) 5 SCC 542, after referring to a
number of decisions this Court concluded as follows:
7. Considering the law laid down by this Court in the aforesaid decisions and even considering the relevant provisions of
Code of Criminal Procedure, namely, Sections 167(2), 173, 227 and 228 Code of Criminal Procedure, what is emerging is
that after the investigation is concluded and the report is forwarded by the police to the Magistrate Under Section
Page 202
173(2)(i) Code of Criminal Procedure, the learned Magistrate may either (1) accept the report and take cognizance of the
offence and issue process, or (2) may disagree with the report and drop the proceedings, or (3) may direct further
investigation Under Section 156(3) and require the police to make a further report. If the Magistrate disagrees with the
report and drops the proceedings, the informant is required to be given an opportunity to submit the protest application
and thereafter, after giving an opportunity to the informant, the Magistrate may take a further decision whether to drop
the proceedings against the Accused or not. If the learned Magistrate accepts the objections, in that case, he may issue
process and/or even frame the charges against the Accused. As observed hereinabove, having not been satisfied with the
investigation on considering the report forwarded by the police Under Section 173(2)(i) Code of Criminal Procedure, the
Magistrate may, at that stage, direct further investigation and require the police to make a further report. However, it is
required to be noted that all the aforesaid is required to be done at the pre-cognizance stage. Once the learned
Magistrate takes the cognizance and, considering the materials on record submitted along with the report forwarded by
the police Under Section 173(2)(i) Code of Criminal Procedure, the learned Magistrate in exercise of the powers Under
Section 227 Code of Criminal Procedure discharges the Accused, thereafter, it will not be open for the Magistrate to suo
motu order for further investigation and direct the investigating officer to submit the report. Such an order after
discharging the Accused can be said to be made at the post-cognizance stage. There is a distinction and/or difference
between the pre-cognizance stage and post-cognizance stage and the powers to be exercised by the Magistrate for
further investigation at the pre-cognizance stage and post-cognizance stage. The power to order further investigation
which may be available to the Magistrate at the pre-cognizance stage may not be available to the Magistrate at the post-
cognizance stage, more particularly, when the Accused is discharged by him. As observed hereinabove, if the Magistrate
was not satisfied with the investigation carried out by the investigating officer and the report submitted by the
investigating officer Under Section 173(2)(i) Code of Criminal Procedure, as observed by this Court in a catena of
decisions and as observed hereinabove, it was always open/permissible for the Magistrate to direct the investigating
agency for further investigation and may postpone even the framing of the charge and/or taking any final decision on
the report at that stage. However, once the learned Magistrate, on the basis of the report and the materials placed along
with the report, discharges the Accused, we are afraid that thereafter the Magistrate can suo motu order further
investigation by the investigating agency. Once the order of discharge is passed, thereafter the Magistrate has no
jurisdiction to suo motu direct the investigating officer for further investigation and submit the report. In such a
situation, only two remedies are available: (i) a revision application can be filed against the discharge or (ii) the Court has
to wait till the stage of Section 319 Code of Criminal Procedure However, at the same time, considering the provisions
of Section 173(8) Code of Criminal Procedure, it is always open for the investigating agency to file an application for
further investigation and thereafter to submit the fresh report and the Court may, on the application submitted by the
investigating agency, permit further investigation and permit the investigating officer to file a fresh report and the same
may be considered by the learned Magistrate thereafter in accordance with law. The Magistrate cannot suo motu direct
for further investigation Under Section 173(8) Code of Criminal Procedure or direct reinvestigation into a case at the
post-cognizance stage, more particularly when, in exercise of powers Under Section 227 Code of Criminal Procedure,
the Magistrate discharges the Accused. However, Section 173(8) Code of Criminal Procedure confers power upon the
officer in charge of the police station to further investigate and submit evidence, oral or documentary, after forwarding
the report under Sub-section (2) of Section 173 Code of Criminal Procedure Therefore, it is always open for the
investigating officer to apply for further investigation, even after forwarding the report under Sub-section (2) of Section
173 and even after the discharge of the Accused. However, the aforesaid shall be at the instance of the investigating
officer/police officer in charge and the Magistrate has no jurisdiction to suo motu pass an order for further
investigation/reinvestigation after he discharges the Accused.
Realising the difficulty in concluding thus, the Court went on to hold:
10. However, considering the observations made by the learned Magistrate and the deficiency in the investigation
pointed out by the learned Magistrate and the ultimate goal is to book and/or punish the real culprit, it will be open for
the investigating officer to submit a proper application before the learned Magistrate for further investigation and
conduct fresh investigation and submit the further report in exercise of powers Under Section 173(8) Code of Criminal
Procedure and thereafter the learned Magistrate to consider the same in accordance with law and on its own merits.
38. There is no good reason given by the Court in these decisions as to why a Magistrate's powers to order further
investigation would suddenly cease upon process being issued, and an Accused appearing before the Magistrate, while
concomitantly, the power of the police to further investigate the offence continues right till the stage the trial
commences. Such a view would not accord with the earlier judgments of this Court, in particular, Sakiri (supra), Samaj
Parivartan Samudaya (supra), Vinay Tyagi (supra), and Hardeep Singh (supra); Hardeep Singh (supra) having clearly held

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that a criminal trial does not begin after cognizance is taken, but only after charges are framed. What is not given any
importance at all in the recent judgments of this Court is Article 21 of the Constitution and the fact that the Article
demands no less than a fair and just investigation. To say that a fair and just investigation would lead to the conclusion
that the police retain the power, subject, of course, to the Magistrate's nod Under Section 173(8) to further investigate an
offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases midway through
the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so
that an innocent person is not wrongly arraigned as an Accused or that a prima facie guilty person is not so left out.
There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such
powers are traceable to Section 156(3) read with Section 156(1), Section 2(h), and Section 173(8) of the Code of Criminal
Procedure, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before
the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the
Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered
is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in
accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain
persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further
delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi (supra). Therefore,
to the extent that the judgments in Amrutbhai Shambubhai Patel (supra), Athul Rao (supra) and Bikash Ranjan Rout
(supra) have held to the contrary, they stand overruled. Needless to add, Randhir Singh Rana v. State (Delhi
Administration) MANU/SC/0161/1997 : (1997) 1 SCC 361 and Reeta Nag v. State of West Bengal and Ors.
MANU/SC/1486/2009 : (2009) 9 SCC 129 also stand overruled.
39. We now come to certain other judgments that were cited before us. King Emperor v. Khwaja Nazir Ahmad
MANU/PR/0007/1944 : AIR 1945 PC 18, was strongly relied upon by Shri Basant for the proposition that unlike
superior Courts, Magistrates did not possess any inherent power under the Code of Criminal Procedure Since we have
grounded the power of the Magistrate to order further investigation until charges are framed Under Section 156(3) read
with Section 173(8) of the Code of Criminal Procedure, no question as to a Magistrate exercising any inherent power
under the Code of Criminal Procedure would arise in this case.
40. Union of India and Anr. v. W.N. Chadha MANU/SC/0149/1993 : (1993) Supp. 4 SCC 260, is a judgment which
states that the Accused has no right to participate in the investigation till process is issued to him, provided there is strict
compliance of the requirements of fair investigation Likewise, the judgments in Smt. Nagawwa v. Veeranna
Shivalongappa Konjalgi and Ors. MANU/SC/0173/1976 : (1976) 3 SCC 736, Prabha Mathur and Anr. v. Pramod
Aggarwal and Ors., MANU/SC/4330/2008 : (2008) 9 SCC 469, Narender G. Goel v. State of Maharashtra
MANU/SC/0885/2009 : (2009) 6 SCC 65 and Dinubhai Bhogabhai Solanki v. State of Gujarat and Ors.
MANU/SC/0134/2014 : (2014) 4 SCC 626, which state that the Accused has no right to be heard at the stage of
investigation, has very little to do with the precise question before us. All these judgments are, therefore, distinguishable.
Further, Babubhai v. State of Gujarat and Ors. MANU/SC/0643/2010 : (2010) 12 SCC 254, is a judgment which
distinguishes between further investigation and re-investigation, and holds that a superior court may, in order to prevent
miscarriage of criminal justice if it considers necessary, direct investigation de novo, whereas a Magistrate's power is
limited to ordering further investigation. Since the present case is not concerned with re-investigation, this judgment also
cannot take us much further. Likewise, Romila Thapar v. Union of India, MANU/SC/1098/2018 : (2018) 10 SCC 753,
held that an Accused cannot ask to change an investigating agency, or to require that an investigation be done in a
particular manner, including asking for a court-monitored investigation. This judgment also is far removed from the
question that has been decided by us in the facts of this case.
41. When we come to the facts of this case, it is clear that the FIR dated 22.12.2009 is concerned with two criminal acts,
namely, the preparing of fake and bogus 'Satakhat' and Power-of-Attorney in respect of the agricultural land in question,
and the demanding of an amount of Rs. 2.5 crores as an attempt to extort money by the Accused persons. The facts that
are alleged in the application for further investigation are facts which pertain to revenue entries having been made in
favour of Ramanbhai Bhagubhai Patel and Shankarbhai Bhagubhai Patel, and how their claim over the same land is false
and bogus. Shri Basant is, therefore, right in submitting that the facts alleged in the applications for further investigation
are really in the nature of a cross-FIR which has never been registered. In fact, the communication of the Commissioner
of Revenue, Gujarat dated 15.03.2011 to the Collector, Surat-so strongly relied upon by Shri Dushyant Dave-bears this
out. In this communication, the learned Commissioner doubts that a particular order dated 14.04.1976 passed by a
revenue authority ever existed, and that by making an application in the name of the long since deceased Bhikhabhai
Khushalbhai in 2010, for getting a copy of Form No. 3 would, prima facie, amount to a criminal offence. Further, the

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learned Commissioner goes on to state that Bhikiben (Bhikhabhai's widow), who had passed away in December 1999,
could not possibly have made an application in the year 2000; which shows that her signature is also prima facie forged.
Further, the said Ramanbhai and Shankarbhai Patel are at present 48 and 53 years old, and if they could be said to be in
possession of the said agricultural land since 1934, they could be said to be in possession at a time when they were not
yet born. Further, since these two gentlemen were abroad from the very beginning, it is stated that they could not
possibly be farmers cultivating agricultural land. For these, and various other reasons, the Commissioner concluded:
Thus, looking to all the aforesaid particulars, as per the submission made by the lady applicant, scam has been made in
respect of her land by creating false bogus cases/resolutions/orders passed or by forging fake documents. Submission is
made for initiating criminal proceedings against all those who are involved in such scam and whether there is substance
in this matter or not? Thorough inquiry be made in that connection at your level. Till the real particulars in this matter
are not becoming clear, it is appearing necessary to stop the NA Permission/Construction activities. Therefore, after
making necessary proceedings in that regard, detailed report having basis of the proceedings done is to be immediately
submitted to the undersigned and periodical information of the proceedings done in this matter also be given to the
undersigned.
42. Given the allegations in the communication of 15.03.2011, we are of the view that this is not a case which calls for
any further investigation into the facts alleged in the FIR lodged on 22.12.2009. Yet, having regard to what is stated by
the learned Commissioner in the said letter, we are of the view that the police be directed to register an FIR qua these
facts, which needs to be investigated by a senior police officer nominated by the concerned Commissioner of Police.
43. We, therefore, set aside the impugned High Court judgment insofar as it states that post-cognizance the Magistrate is
denuded of power to order further investigation. However, given that the facts stated in the application for further
investigation have no direct bearing on the investigation conducted pursuant to the FIR dated 22.12.2009, we uphold the
impugned High Court judgment insofar as it has set aside the judgment of the Second Additional Sessions Judge dated
10.01.2012 which had ordered further investigation, and also the consequential order setting aside the two additional
interim reports of the IO Munshi. So far as Criminal Revision Application No. 346 of 2011 is concerned, we set aside
the impugned High Court judgment which remanded the matter to the revisional court. Consequently, the judgment of
the learned Additional Sessions Judge dated 23.04.2016 upon remand is also set aside, rendering Special Criminal
Application No. 3085 of 2016 infructuous.
44. However, given the serious nature of the facts alleged in the communication of the Commissioner of Revenue dated
15.03.2011, we direct that the police register an FIR based on this letter within a period of one week from the date of
this judgment. This FIR is to be enquired into by a senior police officer designated by the concerned Commissioner of
Police, who is to furnish a police report pursuant to investigation within a period of three months from the date on
which such officer is appointed to undertake such investigation. If such police report results in a prima facie case being
made out, and if the Judicial Magistrate takes cognizance of such charge-sheet, charges will then be framed and trial held.
In the meanwhile, the trial in FIR dated 22.12.2009, which has been stayed by this Court by an order dated 24.04.2019,
will not be commenced until the police report is submitted in the FIR to be lodged by the police pursuant to this
judgment. The learned Magistrate may then decide, in the event that cognizance is taken of the police report in the FIR
to be filed, as to whether a joint-trial should take place, or whether separate trials be conducted one after the other
pursuant to both the FIRs.
45. With these observations, these appeals are disposed of.
1Thisstatement of the law was approved in Rama Chaudhary v. State of Bihar MANU/SC/0517/2009 : (2009) 6 SCC
346 (at paragraphs 14 to 19) and in Samaj Parivartan Samudaya and Ors. v. State of Karnataka and Ors.
MANU/SC/0425/2012 : (2012) 7 SCC 407 (at paragraph 58).

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MANU/SC/1311/2019
Criminal Appeal No. 1481 of 2019 (Arising out of Special Leave Petition (Criminal) No. 1513 of 2011), Criminal Appeal
No. 1122 of 2011, Criminal Appeal Nos. 1482-1485 of 2019 (Arising out of Special Leave Petition (Criminal) Nos. 891-
894 of 2011), Criminal Appeal No. 1486 of 2019 (Arising out of Special Leave Petition (Criminal) No. 4360 of 2011) and
Criminal Appeal No. 1487 of 2019 (Arising out of Special Leave Petition (Criminal) No. 3958 of 2013)
Appellants: Nevada Properties Private Limited

Vs.
Respondent: State of Maharashtra and Ors.
Ranjan Gogoi, C.J.I., Deepak Gupta and Sanjiv Khanna, JJ.
JUDGMENT
Sanjiv Khanna, J.
1. Leave granted in Special Leave Petitions.
2. A Division Bench of this Court (Jagdish Singh Khehar and Arun Mishra, JJ.) vide order dated November 18, 2014,
noticing that the issues that arise have far reaching and serious consequences, had referred the aforesaid appeals to be
heard by a Bench of at least three Judges. After obtaining appropriate directions from Hon'ble the Chief Justice, these
appeals have been listed before the present Bench.
3. For the sake of convenience, we have treated the Criminal Appeal arising out of Special Leave Petition (Criminal) No.
1513 of 2011, filed by Nevada Properties Pvt. Ltd., as the lead case. This appeal arises from judgment of the High Court
of Judicature at Bombay dated November 29, 2010 wherein the majority judgment has held that the expression 'any
property' used in Sub-section (1) of Section 102 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the
'Code') does not include immovable property and, consequently, a police officer investigating a criminal case cannot take
custody of and seize any immovable property which may be found under circumstances which create suspicion of the
commission of any offence. According to the majority judgment, earlier decision of the Division Bench of the same
High Court in Kishore Shankar Signapurkar v. State of Maharashtra and Ors. 1997 Vol. IV L J 793 lays down the correct
ratio and the contrary view expressed in M/s. Bombay Science and Research Education Institute v. The State of
Maharashtra and Ors. 2008 All M.R.(Crl.) 2133 does not lay down the correct law. The minority view holds that the
police officer has power to seize any property, whether movable or immovable, Under Section 102 of the Code and the
decision of the Division Bench in M/s. Bombay Science and Research Education Institute (supra) lays down the correct
law and the ratio in Kishore Shankar Signapurkar (supra) is not good law.
4. In order to decide the present controversy which is primarily legal, we would begin by reproducing Section 102 of the
Code, which reads as under:
Section 102 Power of police officer to seize certain property.
(1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be
found under circumstances which create suspicion of the commission of any offence.

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(2) Such police officer, if subordinate to the office in charge of a police station, shall forthwith report the seizure to that
officer.
(3) Every police officer acting Under Sub-section (1) shall forthwith report the seizure to the Magistrate having
jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court, or where there
is difficulty in securing proper accommodation for the custody of such property, or where the continued retention of the
property in police custody may not be considered necessary for the purpose of investigation, he may give custody
thereof to any person on his executing a bond undertaking to produce the property before the Court as and when
required and to give effect to the further orders of the Court as to the disposal of the same.
Provided that where the property seized Under Sub-section (1) is subject to speedy and natural decay and if the person
entitled to the possession of such property is unknown or absent and the value of such property is less than five
hundred rupees, it may forthwith be sold by auction under the orders of the Superintendent of Police and the provisions
of Sections 457 and 458 shall, as nearly as may be practicable, apply to the net proceeds of such sale.
5. Section 102 of the Code is part of a fasciculus of provisions under Chapter VII-'Process to Compel the Production of
Things'. Part A of the said Chapter deals with Summons to produce; Part B deals with Search-warrants; Part C deals with
General provisions relating to searches; and Part D, of which Section 102 is the first Section, falls under the part
described as Miscellaneous. The marginal note of Section 102 states-"Power of police officer to seize certain property".
Sub-section (3) of Section 102 was inserted by Act No. 45 of 1978. It was later amended by Section 13(a) of the Code of
Criminal Procedure Amendment Act, 2005 (Act 25 of 2005) by adding the expression "or where there is difficulty in
securing proper accommodation for the custody of such property, or where the continued retention of the property in
police custody may not be considered necessary for the purpose of investigation." Proviso to Sub-section (3) was also
added by the Amendment Act, 2005. Sub-section (3) to Section 102 is intended to give greater discretion to the police
officer for releasing seized property, where there is a difficulty in securing proper accommodation for the custody of the
property or where the continued retention of the property in police custody is not considered necessary for the purpose
of investigation. Proviso states that if the seized property is of perishable nature and the value of such property is less
than five hundred rupees and if the person entitled to the possession of such property is unknown or absent, the police
is empowered to sell such property by auction Under Orders of the Superintendent of Police.
6. The minority judgment and the contention of the Appellant is substantially predicated on the words 'any property' in
Sub-section (1) of Section 102. Reference was made to the decision of this Court in State of Maharashtra v. Tapas D.
Neogy MANU/SC/0582/1999 : (1999) 7 SCC 685. To avoid prolixity, we are not referring to the contentions raised by
both sides as the same would be referred to and examined during the course of our reasoning. At the outset, we must
begin by referring to the decision in Tapas D. Neogy (supra), a case arising from three First Information Reports Under
Sections 120-B, 467, 468, 471 and 420 of the Indian Penal Code, 1860 (hereinafter referred to as the 'IPC') and Section
13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The question was whether a bank account
of an Accused or any relation of the Accused was 'property' within the meaning of Section 102 of the Code and if so,
whether the Investigating Officer has the power to seize the bank account or issue a prohibitory order restraining
operation of the bank account. Reference was made to several judgments of the High Courts, some of which would be
discussed later, to hold as under:
12. Having considered the divergent views taken by different High Courts with regard to the power of seizure Under
Section 102 of the Code of Criminal Procedure, and whether the bank account can be held to be "property" within the
meaning of the said Section 102(1), we see no justification to give any narrow interpretation to the provisions of the
Code of Criminal Procedure. It is well known that corruption in public offices has become so rampant that it has
become difficult to cope up with the same. Then again the time consumed by the courts in concluding the trials is
another factor which should be borne in mind in interpreting the provisions of Section 102 of the Code of Criminal
Procedure and the underlying object engrafted therein, inasmuch as if there can be no order of seizure of the bank
account of the Accused then the entire money deposited in a bank which is ultimately held in the trial to be the outcome
of the illegal gratification, could be withdrawn by the Accused and the courts would be powerless to get the said money
which has any direct link with the commission of the offence committed by the Accused as a public officer. We are,
therefore, persuaded to take the view that the bank account of the Accused or any of his relations is "property" within
the meaning of Section 102 of the Code of Criminal Procedure and a police officer in course of investigation can seize
or prohibit the operation of the said account if such assets have direct links with the commission of the offence for
which the police officer is investigating into. The contrary view expressed by the Karnataka, Gauhati and Allahabad
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High Courts, does not represent the correct law. It may also be seen that under the Prevention of Corruption Act, 1988,
in the matter of imposition of fine Under Sub-section (2) of Section 13, the legislatures have provided that the courts in
fixing the amount of fine shall take into consideration the amount or the value of the property which the Accused
person has obtained by committing the offence or where the conviction is for an offence referred to in Clause (e) of
Sub-section (1) of Section 13, the pecuniary resources or property for which the Accused person is unable to account
satisfactorily. The interpretation given by us in respect of the power of seizure Under Section 102 of the Code of
Criminal Procedure is in accordance with the intention of the legislature engrafted in Section 16 of the Prevention of
Corruption Act referred to above. In the aforesaid premises, we have no hesitation to come to the conclusion that the
High Court of Bombay committed error in holding that the police officer could not have seized the bank account or
could not have issued any direction to the bank officer, prohibiting the account of the Accused from being operated
upon. Though we have laid down the law, but so far as the present case is concerned, the order impugned has already
been given effect to and the Accused has been operating his account, and so, we do not interfere with the same.
7. Money, as per Clause (7) of Section 2 of the Sales of Goods Act, 1930, is neither goods nor movable property, albeit
Section 22 of the Indian Penal Code defines the term 'movable property' to include corporeal property of every
description, except land and things attached to the earth or permanently fastened to anything which is attached to the
earth. The expression 'movable property' has not been specifically defined in the Code. In terms of Section 2(y) of the
Code, words and meanings defined in the Indian Penal Code would equally be applicable to the Code. Money, therefore,
would be property for the purposes of the Code. Money is not an immovable property.
8. Decision of this Court in Tapas D. Neogy (supra) was in respect of the bank accounts and it did not examine and
answer the question whether the expression 'any property' would include immovable property. This question was,
however, noticed in paragraph 6 in Tapas D. Neogy (supra), which had made reference to a decision of the Delhi High
Court in Ms. Swaran Sabharwal v. Commissioner of Police MANU/DE/0066/1990 : 1988 CriLJ 241 (Del) (DB) in
which it was held that Section 102 requires that the seized property by itself should lead to the suspicion that some
offence has been committed. In other words, the discovery of the offence should be a sequel to the discovery of that
property and not the other way around. Reference in this regard can also be made to Jagdish Chander and Ors. v. State
and Ors. MANU/DE/0342/1989 : 40 (199) DLT 233, wherein the Petitioner had challenged the seizure action of the
police on the ground that the word 'seizure' appearing in Section 102 of the Code would imply actual taking of
possession and, therefore, would not include immovable property. This contention was not answered and left open as
the Delhi High Court came to the conclusion that the seizure order therein Under Section 102 of the Code was not in
accordance with the statutory requirement as the property should be discovered under circumstances which create a
suspicion of the commission of an offence, that is, the police officer should come across certain property in
circumstances which create in his mind a suspicion that an offence has been committed. Section 102, it was held, would
not be attracted where the property has not been traced or discovered which leads to a suspicion of an offence having
been committed. Discovery of property should precede the detection of crime. This ratio was subsequently followed in
P.K. Parmar and Ors. v. Union of India and Anr. MANU/DE/0423/1992 : 1992 CriLJ 2499 (Del) in which the Delhi
High Court had reiterated that unless discovery of the property leads to a suspicion of an offence having been
committed, Section 102 of the Code cannot be invoked for seizing such properties. The Delhi High Court examined the
question; whether the discovery of the bank accounts had preceded the suspicion of the offences having been
committed and held that there were good reasons, in view of the attending circumstances, which had led Central Bureau
of Investigation (hereinafter referred to as the 'CBI') to be suspicious of an offence having been committed in relation to
such accounts. The accounts were found either in the name of non-existent persons or in bogus names and all such
accounts were allegedly being maintained by the principal Accused. There was sufficient cause for the CBI to set the
criminal law into motion. In this case, the allegation was that subsidies were obtained illegally and without entitlement
from the Government of India, and the amounts so received were deposited in the bank accounts that had prima facie
linked the Accused with various offences with which they were charged. The cause of action, therefore, for seizing the
bank accounts arose when a suspicion was created relating to the multiple and spurious handling of bank accounts.
9. Tapas D. Neogy (supra) had also referred to the judgment of a Single Judge of the Madras High Court in Bharat
Overseas Bank v. Minu Publication MANU/TN/0478/1988 : 1988 MLW (Cri.) 106, which had made reference to
Sections 451, 452, 453, 456 and 457 of the Code to observe that these provisions seek to reimburse or compensate
victims of crime and bring about restoration of the property or its restitution. The provision empowering seizure was
necessary to preserve the property for the purpose of enabling the Criminal Court to pass suitable orders under the
aforesaid provisions at the conclusion of the trial. The judgment also refers to restoration of immovable property under
certain circumstances dealt with Under Section 456 of the Code.

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10. The reason why we have referred to the two decisions in P.K. Parmar (supra) and Bharat Overseas Bank (supra) is to
notice the wide range of issues and contentions with reference to the term 'property' that could arise for consideration
while interpreting the power of the police officer to effect seizure Under Section 102 of the Code, albeit this Court did
not deal with and express an opinion on several issues in Tapas D. Neogy (supra) and the judgment was confined and
limited to the question; whether bank accounts would fall within the category of 'any property'. Holding that the bank
accounts would fall under the expression 'any property' Under Section 102 of the Code, it was observed that there was
no justification or reason to give a narrow interpretation to the words to exclude bank accounts, elucidating that
corruption in public offices has become rampant and this aspect has to be borne in mind while interpreting the
provisions of Section 102 of the Code and the underlying object engrafted in the provision.
11. It follows from the aforesaid discussion that the decision in Tapas D. Neogy (supra) did not go into and decide the
issue; whether immovable property would fall under the expression 'any property' Under Section 102 of the Code. We
say so by applying the inversion test as referred to in State of Gujarat and Ors. v. Utility Users' Welfare Association and
Ors. MANU/SC/0374/2018 : (2018) 6 SCC 21, which states that the Court must first carefully frame the supposed
proposition of law and then insert in the proposition a word reversing its meaning to get the answer whether or not a
decision is a precedent for that proposition. If the answer is in the affirmative, the case is not a precedent for that
proposition. If the answer is in the negative, the case is a precedent for the original proposition and possibly for other
propositions also. This is one of the tests applied to decide what can be regarded and treated as ratio decidendi of a
decision. Reference in this regard can also be made to the decisions of this Court in U.P. State Electricity Board v.
Pooran Chandra Pandey and Ors. MANU/SC/8004/2007 : (2007) 11 SCC 92, Commissioner of Income Tax v. Sun
Engineering Works (P) Ltd. MANU/SC/0707/1992 : (1992) 4 SCC 363 and other cases which hold that a decision is
only an authority for what it actually decides. What is of the essence in a decision is its ratio. Not every observation
found therein nor what logically flows from those observations is the ratio decidendi. Judgment in question has to be
read as a whole and the observations have to be considered in light of the instances which were before the Court. This is
the way to ascertain the true principles laid down by a decision. Ratio decidendi cannot be decided by picking out words
or sentences averse to the context under question from the judgment. It is, therefore, clear to us that Tapas D. Neogy
(supra) did not decide the issue in question; whether or not an immovable property will fall within the expression 'any
property' in Section 102 of the Code. We will have to, therefore, examine the issue and answer the same.
12. This Court in R.K. Dalmia etc. v. Delhi Administration MANU/SC/0110/1962 : AIR 1962 SC 1821 had interpreted
the word 'property' in Section 405 and other sections of the Indian Penal Code to opine that there was no good reason
to restrict the meaning of the word 'property' to movable property when the word was used without any qualification in
Section 405 or in other Sections of the Indian Penal Code. At the same time, this Court had cautioned that whether an
offence defined in a particular Section of the Indian Penal Code can be committed in respect of any particular kind of
property, will depend not on the interpretation of the word 'property' but on the fact that whether that particular kind of
property can be subject to acts covered by that section. In that sense, it can be said that the word 'property' in a
particular Section covers only that type of property in respect of which the offence contemplated in that Section can be
committed. This, we would observe, is the central and core principle which would have to be applied when we interpret
the expression 'any property' used in Section 102 of the Code, which as noticed above and elucidated below is a power
conferred upon the police officer and relates to the stage of investigation and collection of evidence to be produced in
the Court during trial.
13. Before we proceed further, we would like to refer to the Criminal Law Amendment Ordinance, 1944 (No. XXXVIII
of 1944) which was promulgated in exercise of powers conferred Under Section 72 of the Ninth Schedule of the
Government of India Act, 1935 to prevent disposal or concealment of property procured by means of offences specified
in its Schedule, which include offences punishable Under Sections 406, 408, 409, 411 and 414 of the Indian Penal Code
in respect of Government property, property of local authority or a Corporation established by or under a Central,
Provincial or State Act, etc., and an offence punishable under the Prevention of Corruption Act, 1988, an insertion made
by the Prevention of Corruption Act, 1988. It sets out the procedure when the Central/State Government has a reason
to believe that a person has committed any scheduled offence, whether or not the Court has taken cognisance of the said
offence, by attachment of money or other property which the Central/State Government believes that the person has
procured by means of the scheduled offence, and if such money or property cannot for any reason be attached, any
other property of the said person of value as nearly as may be equivalent to that of the aforesaid money or property.
This enactment mandates application of provisions of Order XXVII of the Code of Civil Procedure, 1908 with a
provision for filing an application before the District Judge who is entitled to pass an ad interim attachment order after
following the prescribed procedure including examination and investigation of objections to attachment of the property.

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The District Judge can pass an order either making the interim attachment absolute or varying it by releasing the
property or portion thereof or withdrawing the order on satisfaction of certain conditions. Other Sections contained in
the Ordinance provide for attachment of property of mala fide transferees, execution of orders of attachment, security in
lieu of attachment, administration of attached property, duration of attachment, appeals, power of Criminal Court to
evaluate property procured by scheduled offences and disposal of attached property upon termination of criminal
proceedings. Section 14 bars legal proceedings in other Courts in respect of the property attached under the Ordinance.
The Ordinance is a permanent Ordinance which was promulgated during the Second World War. It was adopted by the
Presidential Adaptation of Laws Order, 1950 issued under the powers conferred by Clause (2) of Article 372 of the
Constitution, thus, making it effective in the territory of India and, therefore, continues to remain in force.
14. Similarly, there are provisions in the form of Sections 145, 146, 165 amongst others in the Code which specifically
relate to immovable properties. Chapter VIIA-'Reciprocal Arrangements for Assistance in Certain Matters and
Procedure for Attachment and Forfeiture of Property' specifically includes immovable properties under the expression
'property' for the purpose of the said Chapter unless the context otherwise requires. Similarly, we have specific
provisions relating to and dealing with immovable property under the Narcotics, Drugs and Psychotropic Substances
Act, 1985.
15. We would now refer to Chapter XXXIV of the Code, which has the heading 'Disposal of Property' and consists of
Sections 451 to 459. We would like to reproduce Sections 451, 452, 453, 454, 456 and 457 of the Code, which read as
under:
451. Order for custody and disposal of property pending trial in certain cases.--When any property is produced before
any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of
such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay,
or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be
sold or otherwise disposed of.
Explanation.-For the purposes of this section, "property" includes-
(a) property of any kind or document which is produced before the Court or which is in its custody,
(b) any property regarding which an offence appears to have been committed or which appears to have been used for
the commission of any offence.
452. Order for disposal of property at conclusion of trial.-
(1) When an inquiry or trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the
disposal, by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or
otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to
have been committed, or which has been used for the commission of any offence.
(2) An order may be made Under Sub-section (1) for the delivery of any property to any person claiming to be entitled
to the possession thereof, without any condition or on condition that he executes a bond, with or without sureties, to
the satisfaction of the Court, engaging to restore such property to the Court if the order made Under Sub-section (1) is
modified or set aside on appeal or revision.
(3) A Court of Session may, instead of itself making an order Under Sub-section (1), direct the property to be delivered
to the Chief Judicial Magistrate, who shall thereupon deal with it in the manner provided in Sections 457, 458 and 459.
(4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed
in pursuance of Sub-section (2), an order made Under Sub-section (1) shall not be carried out for two months, or when
an appeal is presented, until such appeal has been disposed of.

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(5) In this section, the term "property" includes, in the case of property regarding which an offence appears to have been
committed, not only such property as has been originally in the possession or under the control of any party, but also
any property into or for which the same may have been converted or exchanged, and anything acquired by such
conversion or exchange, whether immediately or otherwise.
453. Payment to innocent purchaser of money found on Accused.-
When any person is convicted of any offence which includes, or amounts to, theft or receiving stolen property, and it is
proved that any other person bought the stolen property from him without knowing or having reason to believe that the
same was stolen, and that any money has on his arrest been taken out of the possession of the convicted person, the
Court may, on the application of such purchaser and on the restitution of the stolen property to the person entitled to
the possession thereof, order that out of such money a sum not exceeding the price paid by such purchaser be delivered
to him.
454. Appeal against orders Under Section 452 or Section 453.-
(1) Any person aggrieved by an order made by a Court Under Section 452 or Section 453, may appeal against it to the
Court to which appeals ordinarily lie from convictions by the former Court.
(2) On such appeal, the Appellate Court may direct the order to be stayed pending disposal of the appeal, or may
modify, alter or annul the order and make any further orders that may be just.
(3) The powers referred to in Sub-section (2) may also be exercised by a Court of appeal, confirmation or revision while
dealing with the case in which the order referred to in Sub-section (1) was made.
xx xx xx
456. Power to restore possession of immovable property.-
(1) When a person is convicted of an offence attended by criminal force or show of force or by criminal intimidation,
and it appears to the Court that, by such force or show of force or intimidation, any person has been dispossessed of any
immovable property, the Court may, if it thinks fit, order that possession of the same be restored to that person after
evicting by force, if necessary, any other person who may be in possession of the property:
Provided that no such order shall be made by the Court more than one month after the date of the conviction.
(2) Where the Court trying the offence has not made an order Under Sub-section (1), the Court of appeal, confirmation
or revision may, if it thinks fit, make such order while disposing of the appeal, reference or revision, as the case may be.
(3) Where an order has been made Under Sub-section (1), the provisions of Section 454 shall apply in relation thereto as
they apply in relation to an order Under Section 453.
(4) No order made under this Section shall prejudice any right or interest to or in such immovable property which any
person may be able to establish in a civil suit.
457. Procedure by police upon seizure of property.-
(1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code,
and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such
order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to
the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.

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(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions
(if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case,
issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a
claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.
16. Section 451 empowers the Criminal Court to pass an order of proper custody of 'any property' pending trial or
inquiry. The Court can also direct disposal in certain circumstances. Explanation to Section 451 states that for the
purpose of the said Section, 'property' includes property of any kind or document which is produced before the Court or
which is in its custody or any property regarding which an offence appears to have been committed or which appears to
have been used for the commission of any offence. Section 451 applies during or pending trial, or inquiry (the
expression 'inquiry' is defined in Section 2(g) of the Code). There are judgments that hold that the expression 'property'
for the purpose of Section 451 includes immovable property. In fact, preponderance of judicial decisions takes this view,
though there is no direct judgment of this Court. Same is the position with regard to Section 452, which in Sub-section
(5) states that the term 'property' includes, in case of property regarding which an offence appears to have been
committed, not only such property as was originally in possession or under control of any party, but also any property
into which the same may have been converted or exchanged, and anything acquired by such conversion or exchange,
whether immediately or otherwise. Section 452 states that when an inquiry or trial in a Criminal Court concludes, the
Court may make an order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming
himself to be entitled to possession thereof or otherwise, of any property or document produced before it or in its
custody, or regarding which an offence appears to have been committed or which has been used for the commission of
any offence. The context is wide, albeit the words, "may make such order as it thinks fit" in Section 452 vests the Court
with the discretion to dispose of the property in any of the three modes specified, namely, destruction, confiscation or
delivery to the person entitled to be in possession thereof or otherwise (see N. Madhavan v. State of Kerala
MANU/SC/0190/1979 : (1979) 4 SCC 1). However, an order Under Section 452 is not an order determining title or
ownership but that of the right to possession, and therefore where serious claims to ownership are put forward, it would
be best if the Criminal Courts directs the parties to establish their claim before the Civil Court. The Criminal Court can,
however, pass appropriate order of interim nature as it may be appropriate. What is important and relevant for our
discussion is that the Sections 451 and 452 are broad and wide conferring specific and clear powers upon the Criminal
Court, and the language indicates that they could equally apply to immovable property. These Sections do not make
reference to Section 102 of the Code relating to the seizure of property by the police officer. This is equally true of
Section 456 which specifically empowers the Criminal Court to restore possession of immovable property when a
person is convicted of an offence attended by criminal force or show of force or by criminal intimidation and it appears
to the Court that by such force or show of force or intimidation any person has been dispossessed of the property. This
order can be made without prejudice to the right or interest to or in such immovable property which any person may be
able to establish in a civil suit. Section 457 applies when a property has been seized by any police officer and is reported
to a Magistrate under the provisions of the Code and such property is not produced before a Criminal Court during the
course of inquiry or trial. The expression 'not produced before a Criminal Court' used in Section 457 of the Code is
significant. Thus, this provision applies to the property seized Under Section 102 of the Code, but not produced during
the trial or inquiry. In common parlance, the word 'produced' is an expression used to signify actual or physical
production which would apply to movable property. Immovable property cannot be 'produced' in a Court.
17. We have referred to the said provisions under Chapter XXXIV-'Disposal of Property', as this would be of
significance and, addresses the argument and concern expressed by the Appellant -Nevada Properties Pvt. Ltd. and some
of the State Governments. These provisions, specifically enable the Court to pass orders relating to the properties, both
movable and immovable. We have referred to Section 451, which does not specifically refer to any seizure order Under
Section 102 of the Code but vide Explanation includes such property regarding which an offence appears to have been
committed or which appears to have been used for the commission of any offence. Similarly, Section 452 refers to
property regarding which an offence appears to have been committed as has been originally in possession or under
control of any party and also such property into or for which the same may have been converted or exchanged. Again
Section 452 per se, does not make any reference to Section 102 of the Code. This is also true for Section 456 of the
Code which relates to restoration of possession of immovable property in certain circumstances. These provisions,
therefore, do not directly define the contours and scope of Section 102 of the Code. On the other hand, it would show
that Section 102 is not the primary or the core provision which would make the provisions of Section 451, 452 or 456 of
the Code applicable. The parameters for application of these Sections are those as are enumerated in the specific
provisions. Sections 451 and 452 specifically define the expression 'property' for the purpose of an order of custody and
disposal by the Court. Section 456 applies to the category or type of offences concerning immovable property regardless
of whether the immovable property is in custody of the Court or has been attached. Power of the Criminal Court under
Page 212
these Sections, except Section 457 of the Code, is not restricted to property seized by the police officer Under Section
102 of the Code. Section 457, as noticed, applies to properties which have been seized by the police officer under the
Code but not produced during inquiry or trial.
18. Having held and elucidated on the power of the Criminal Court, we find good ground and reason to hold that the
expression 'any property' appearing in Section 102 of the Code would not include immovable property. We would
elucidate and explain.
19. The first part of Sub-section (1) of Section 102 of the Code relates to the property which may be alleged or
suspected to have been stolen. Immovable property certainly cannot be stolen and cannot fall in this part. The second
part relates to the property which may be found by a police officer under circumstances which create suspicion of the
commission of any offence. We have already referred to the judgments of the Delhi High Court in the case of P.K.
Parmar (supra), Ms. Swaran Sabharwal (supra), and Jagdish Chander (supra), which have elucidated and in a restricted
and narrow manner defined the requirement for invoking the second part. However, we have come across a decision of
this Court in Teesta Atul Setalvad v. State of Gujarat MANU/SC/1606/2017 : (2018) 2 SCC 372, on an appeal from the
judgment of the Gujarat High Court and had dealt with a situation when an act of freezing the accounts was a sequel to
the crime as the crime was detected earlier. The Gujarat High Court took a somewhat contrary view, by not interfering
and directing defreezing, observing that even if the action of the investigating agency at the inception to seize may not
be regular, the Court cannot be oblivious to the collection of substantial material by the investigating agency which
justifies its action Under Section 102 of the Code. Further when the investigation had progressed to a material point, de-
freezing the bank accounts on the basis of such arguments would paralyse the investigation which would not be in the
interest of justice. After referring to the factual matrix in Teesta Atul Setalvad (Supra), this Court observed that the
Investigating Officer was in possession of material pointing out to the circumstances that had created suspicion of the
commission of an offence, in particular the one under investigation, and therefore exercise of power Under Section 102
of the Code would be in law legitimate as it was exercised after following the procedure prescribed in Sub-sections (2)
and (3) of the same provision.
20. Section 102 postulates seizure of the property. Immovable property cannot, in its strict sense, be seized, though
documents of title, etc. relating to immovable property can be seized, taken into custody and produced. Immovable
property can be attached and also locked/sealed. It could be argued that the word 'seize' would include such action of
attachment and sealing. Seizure of immovable property in this sense and manner would in law require dispossession of
the person in occupation/possession of the immovable property, unless there are no claimants, which would be rare.
Language of Section 102 of the Code does not support the interpretation that the police officer has the power to
dispossess a person in occupation and take possession of an immovable property in order to seize it. In the absence of
the Legislature conferring this express or implied power Under Section 102 of the Code to the police officer, we would
hesitate and not hold that this power should be inferred and is implicit in the power to effect seizure. Equally important,
for the purpose of interpretation is the scope and object of Section 102 of the Code, which is to help and assist
investigation and to enable the police officer to collect and collate evidence to be produced to prove the charge
complained of and set up in the charge sheet. The Section is a part of the provisions concerning investigation
undertaken by the police officer. After the charge sheet is filed, the prosecution leads and produces evidence to secure
conviction. Section 102 is not, per se, an enabling provision by which the police officer acts to seize the property to do
justice and to hand over the property to a person whom the police officer feels is the rightful and true owner. This is
clear from the objective behind Section 102, use of the words in the Section and the scope and ambit of the power
conferred on the Criminal Court vide Sections 451 to 459 of the Code. The expression 'circumstances which create
suspicion of the commission of any offence' in Section 102 does not refer to a firm opinion or an adjudication/finding
by a police officer to ascertain whether or not 'any property' is required to be seized. The word 'suspicion' is a weaker
and a broader expression than 'reasonable belief' or 'satisfaction'. The police officer is an investigator and not an
adjudicator or a decision maker. This is the reason why the Ordinance was enacted to deal with attachment of money
and immovable properties in cases of scheduled offences. In case and if we allow the police officer to 'seize' immovable
property on a mere 'suspicion of the commission of any offence', it would mean and imply giving a drastic and extreme
power to dispossess etc. to the police officer on a mere conjecture and surmise, that is, on suspicion, which has hitherto
not been exercised. We have hardly come across any case where immovable property was seized vide an attachment
order that was treated as a seizure order by police officer Under Section 102 of the Code. The reason is obvious.
Disputes relating to title, possession, etc., of immovable property are civil disputes which have to be decided and
adjudicated in Civil Courts. We must discourage and stall any attempt to convert civil disputes into criminal cases to put
pressure on the other side (See Binod Kumar and Ors. v. State of Bihar and Anr. MANU/SC/0978/2014 : (2014) 10

Page 213
SCC 663). Thus, it will not be proper to hold that Section 102 of the Code empowers a police officer to seize immovable
property, land, plots, residential houses, streets or similar properties. Given the nature of criminal litigation, such seizure
of an immovable property by the police officer in the form of an attachment and dispossession would not facilitate
investigation to collect evidence/material to be produced during inquiry and trial. As far as possession of the immovable
property is concerned, specific provisions in the form of Sections 145 and 146 of the Code can be invoked as per and in
accordance with law. Section 102 of the Code is not a general provision which enables and authorises the police officer
to seize immovable property for being able to be produced in the Criminal Court during trial. This, however, would not
bar or prohibit the police officer from seizing documents/papers of title relating to immovable property, as it is distinct
and different from seizure of immovable property. Disputes and matters relating to the physical and legal possession and
title of the property must be adjudicated upon by a Civil Court.
21. In view of the aforesaid discussion, the Reference is answered by holding that the power of a police officer Under
Section 102 of the Code to seize any property, which may be found under circumstances that create suspicion of the
commission of any offence, would not include the power to attach, seize and seal an immovable property.
22. The Registry is directed to list the individual appeals for disposal before the appropriate Bench.
Deepak Gupta, J.
23. I have gone through the judgment delivered by my brother, Justice Sanjiv Khanna. I agree with the finding in the
said judgment. However, in view of the nature of the issue involved, I intend to give a few additional reasons of my own.
24. Since brother Khanna in his judgment has given elaborate reasons to hold that in the context of Section 102 the
words 'any property' would mean only movable property, I am not repeating the same for the sake of brevity.
25. The main issue involved is what is the meaning to be given to the word 'property' occurring in Section 102 of the
Code of Criminal Procedure which reads as follows:
Power of police officer to seize certain property.-(1) Any police officer may seize any property which may be alleged or
suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of
any offence.
(2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that
officer.
(3) Every police officer acting Under Sub-section (1) shall forthwith report the seizure to the Magistrate having
jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court, or where there
is difficulty in securing proper accommodation for the custody of such property, or where the continued retention of the
property in police custody may not be considered necessary for the purpose of investigation, he may give custody
thereof to any person on his executing a bond undertaking to produce the property before the Court as and when
required and to give effect to the further orders of the Court as to the disposal of the same:
Provided that where the property seized Under Sub-section (1) is subject to speedy and natural decay and if the person
entitled to the possession of such property is unknown or absent and the value of such property is less than five
hundred rupees, it may forthwith be sold by auction under the orders of the Superintendent of Police and the provisions
of Sections 457 and 458 shall, as nearly as may be practicable, apply to the net proceeds of such sale.
Sub-section (1) of Section 102 empowers a police officer to seize any property which may be alleged or suspected to
have been stolen or which may be found under circumstances which create suspicion of the commission of any offence.
On behalf of the Appellant it is urged that the word 'any property' is of very wide amplitude and will cover movable and
immovable properties. This stand is also supported by the State of Maharashtra. On the other hand, it is contended by
the Respondents that in the context in which the word 'any property' is used in the Section, it has to be limited to
movable property and cannot be extended to immovable property.

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26. At first blush, the arguments on behalf of the Appellant seem attractive because normally the words 'any property'
would mean property of any kind or description. However, it is a well settled principle of statutory interpretation that
when construing the words of a statute, they must be read in a manner in which they fit into the Section and in the
context of the purpose sought to be achieved by that particular provision of law.
27. Sub-section (1) of Section 102 empowers a police officer to seize any property which may be alleged or suspected to
have been stolen. Theft can take place only of movable property and not of immovable property. In my view, the word
'seized' has been used in the sense of taking actual physical custody of the property. Sub-section 3 of Section 102
provides that where it is difficult to conveniently transport the property to the court or there is difficulty in securing
proper accommodation for the custody of the property, then the property can be given to any person on his executing a
bond. This per se indicates that the property must be capable of production in court and also be capable of being kept
inside some accommodation. This obviously cannot be done with immovable property.
28. Section 102 has been in the statute book for more than a century. Section 102 corresponds to Section 550 of the
Code of Criminal Procedure, 1898. For more than a century the courts have read the words 'any property' to mean
movable property123 and no decision to the contrary was brought to our notice. Reliance is only placed on the judgment
of this Court in State of Maharashtra v. Tapas D. Neogy MANU/SC/0582/1999 : (1999) 7 SCC 685. In that case, the
question was totally different and this Court only decided that a bank account of an Accused was property within the
meaning of Section 102. The Court did not go into the question of movable or immovable property and, therefore, this
judgment would not be applicable.
29. I would also like to point out that in the Code of Criminal Procedure itself the Legislature has in various provisions
specifically used the words 'movable' and 'immovable' property. Some of those have been dealt with by my learned
brother. In this regard reference may be made to Section 83 of the Code of Criminal Procedure which relates to seizure
of the property of a proclaimed absconder. Sub-section 1 of Section 83 reads as follows:
(1) The Court issuing a proclamation Under Section 82 may, for reasons to be recorded in writing, at any time after the
issue of the proclamation, order the attachment of any property, movable or immovable, or both, belonging to the
proclaimed person:...
The Legislature in its wisdom uses the words "order the attachment of any property, movable or immovable or both".
This is in contradistinction to the words 'any property' used in Section 102.
30. Chapter VIIA was introduced in Code of Criminal Procedure vide Act 40 of 1993 w.e.f. 20th July 1994. This Chapter
deals with reciprocal arrangements for assistance in certain matters and procedure for attachment and forfeiture of
property. Property has been defined in Section 105A(d) as follows:
'Property' means property and assets of every description whether corporeal or incorporeal, movable or immovable,
tangible or intangible and deeds and instruments evidencing title to, or interest in, such property or assets derived or
used in the commission of an offence and includes property obtained through proceeds of crime.
This would include property of all kinds, movable and immovable. The Legislature made it clear that property of all
kinds can be attached and forfeited.
Section 105C(1) reads as follows:
Section 105C(1) Where a Court in India has reasonable grounds to believe that any property obtained by any person is
derived or obtained, directly or indirectly, by such person from the commission of an offence, it may make an order of
attachment or forfeiture of such property, as it may deem fit under the provisions of Section 105D to 105J (both
inclusive).
Reading all these provisions together, it is clear that when any court in India has reasonable grounds to believe that any
property has been obtained by any person directly or indirectly from the commission of an offence, the Court may make
an order for attachment or forfeiture of such property.

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31. This Court is not concerned with the procedure to be followed for attachment and forfeiture of the property but
only the meaning of the word 'property'. Thus, Section 105C empowers the court to order forfeiture of any property
which it may feel is derived or obtained directly or indirectly by the commission of an offence.
32. If the argument of the Appellant and the State of Maharashtra is accepted then there was no need for the legislature
to have introduced Chapter VIIA. It would also be pertinent to mention that the power of attachment and forfeiture is
given to courts and not to police officer. As pointed out in the judgment of my learned brother, if a police officer is
given the power to seize immovable property it may lead to an absolutely chaotic situation. To give an example, if there
is a physical fight between the landlord and the tenant over the rented premises and if the version of the Appellant is to
be accepted, the police official would be entitled to seize the tenanted property. This would make a mockery of rent
laws. To give another example, if a person forges a will and thereby claims property on the basis of the forged will, can
the police officer be given the power to seize the entire property, both movable and immovable, that may be mentioned
in the will? The answer has to be in the negative. Otherwise it would lead to an absurd situation which could never have
been envisaged by the Legislature. The power of seizure in Section 102 has to be limited to movable property.
33. As far as the meaning of property in Section 452 of the Code of Criminal Procedure is concerned, that is not a
question referred to the larger Bench and therefore, I would refrain from saying anything about that.
34. In view of the above, I would answer the reference by holding that the phrase 'any property' in Section 102 will only
cover moveable property and not immovable property.
1AIR 1960 AII 405

2WP(C) No. 12275 of 2012, Judgment dated 26.07.2012 (Ker HC)
32016(3) PLJR 464

Page 216
MANU/SC/1023/2019
Criminal Appeal Nos. 2003 of 2012, 1318 of 2013, Criminal Appeal No. 1187 of 2019 (Arising out of SLP (Criminal)
No. 9671 of 2017), Criminal Appeal No. 1188 of 2019 (Arising out of SLP (Criminal) No. 1048 of 2018), Criminal
Appeal No. 1189 of 2019 (Arising out of SLP (Criminal) No. 2225 of 2018) and Criminal Appeal No. 1190 of 2019
(Arising out of SLP (Criminal) No. 3272 of 2018)
Appellants: Ritesh Sinha

Vs.
Respondent: State of Uttar Pradesh and Ors.
Ranjan Gogoi, C.J.I., Deepak Gupta and Sanjiv Khanna, JJ.
JUDGMENT
Ranjan Gogoi, C.J.I.
1. Leave granted in Special Leave Petition (Criminal) Nos. 9671 of 2017, 1048 of 2018, 2225 of 2018 and 3272 of 2018.
2. Criminal Appeal No. 2003 of 2012.
Facts:
On 7th December, 2009 the In-charge of the Electronics Cell of Sadar Bazar Police Station located in the district of
Saharanpur of the State of Uttar Pradesh lodged a First Information Report ("FIR" for short) alleging that one Dhoom
Singh in association with the Appellant-Ritesh Sinha, was engaged in collection of monies from different people on the
promise of jobs in the Police. Dhoom Singh was arrested and one mobile phone was seized from him. The Investigating
Authority wanted to verify whether the recorded conversation in the mobile phone was between Dhoom Singh and the
Appellant-Ritesh Sinha. They, therefore, needed the voice sample of the Appellant and accordingly filed an application
before the learned jurisdictional Chief Judicial Magistrate ("CJM" for short) praying for summoning the Appellant to the
Court for recording his voice sample.
3. The learned CJM, Saharanpur by order dated 8th January, 2010 issued summons to the Appellant to appear before the
Investigating Officer and to give his voice sample. This order of the learned CJM was challenged before the High Court
of Allahabad Under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C."). The
High Court having negatived the challenge made by the Appellant by its order dated 9th July, the present appeal has been
filed.
4. The appeal was heard and disposed of by a split verdict of a two Judge Bench of this Court requiring the present
reference.
5. Two principal questions arose for determination of the appeal which have been set out in the order of Justice Ranjana
Prakash Desai dated 7th December, 2012 in the following terms.

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(1) Whether Article 20(3) of the Constitution of India, which protects a person Accused of an offence from being
compelled to be a witness against himself, extends to protecting such an Accused from being compelled to give his voice
sample during the course of investigation into an offence?
(2) Assuming that there is no violation of Article 20(3) of the Constitution of India, whether in the absence of any
provision in the Code, can a Magistrate authorize the investigating agency to record the voice sample of the person
Accused of an offence?
6. While the first question was answered in the negative by both the learned Judges (Justice Ranjana Prakash Desai and
Justice Aftab Alam) following the ratio of the law laid down in State of Bombay v. Kathi Kalu Oghad
MANU/SC/0134/1961 : A.I.R. 1961 SC 1808, difference of opinion has occurred insofar as second question is
concerned.
7. Justice Desai took the view that voice sample can be included in the phrase "such other tests" appearing in
Explanation (a) to Section 53 Code of Criminal Procedure by applying the doctrine of ejusdem generis and, therefore, the
Magistrate would have an implied power Under Section 53 Code of Criminal Procedure to pass an order permitting
taking of voice sample in the aid of criminal investigation.
8. On the other hand, Justice Aftab Alam took the view that compulsion on an Accused to give his/her voice sample
must be authorized on the basis of a law passed by the Legislature instead of a process of judicial interpretation. In this
regard, the learned judge (Aftab Alam, J.) also took note of the amendments in Sections 53, 53A and 311-A of the Code
of Criminal Procedure by Act No. 25 of 2005 introduced with effect from 23rd June, 2006 which amendments did not
bring, within the fold of the aforesaid provisions of the Code of Criminal Procedure, any power in the trial Court to
compel an Accused to give sample of his/her voice for the purpose of investigation of a criminal charge.
9. Despite unanimity amongst the learned Judges hearing the appeal on the first question on which the learned Counsel
for the Appellant has also not laid much stress it would be appropriate to make the discussions complete to answer the
question on the strength of the test laid down by this Court in State of Bombay v. Kathi Kalu Oghad (supra).
Speaking on behalf of the majority the then learned Chief Justice B.P. Sinha was of the view that the prohibition
contemplated by the constitutional provision contained in Article 20(3) would come in only in cases of testimony of an
Accused which are self-incriminatory or of a character which has the tendency of incriminating the Accused himself.
The issue in the case was with regard to specimen writings taken from the Accused for comparison with other writings
in order to determine the culpability of the Accused and whether such a course of action was prohibited Under Article
20(3) of the Constitution. The following observations of the then Chief Justice B.P. Sinha would be apt for recollection
as the same conclusively determines the first question arising. The same, therefore, is extracted below:
(11). ..........It is well-established that Clause (3) of Article 20 is directed against self-incrimination by an Accused person.
Self-Incrimination must mean conveying information based upon the personal knowledge of the person giving the
information and cannot include merely the mechanical process of producing documents in court which may throw a
light on any of the points in controversy, but which do not contain any statement of the Accused based on his personal
knowledge..........
(12) In order that a testimony by an Accused person may be said to have been self-incriminatory, the
compulsion of which comes within the prohibition of the constitutional provision, it must be of such a
character that by itself it should have the tendency of incriminating the Accused, if not also of actually doing
so. In other words, it should be a statement which makes the case against the Accused person at least probable,
considered by itself. A specimen handwriting or signature or finger impressions by themselves are no testimony at all,
being wholly innocuous, because they are unchangeable; except, in rare cases where the ridges of the fingers or the style
of writing have been tampered with. They are only materials for comparison in order to lend assurance to the
Court that its inference based on other pieces of evidence is reliable. They are neither oral nor documentary
evidence but belong to the third category of material evidence which is outside the limit of 'testimony'.
10. We may now proceed to answer the second question, namely, whether in the absence of any specific provision in the
Code of Criminal Procedure would a Court be competent to authorize the Investigating Agency to record the voice

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sample of a person Accused of an offence. We are told that no authoritative pronouncement of this Court has been
rendered by this Court.
11. Medical examination of an Accused for the purposes of effective investigation of a criminal charge has received a
wider meaning by the amendment to the Explanation to Section 53 Code of Criminal Procedure made by Act No. 25 of
2005 with effect from 23rd June, 2006. Similarly, Section 53A has been inserted by the same Amending Act (No. 25 of
2005) to provide for examination of a person Accused of rape. Likewise, by insertion of Section 311-A by the same
Amending Act (No. 25 of 2005) a Magistrate has been empowered to order any person, including an Accused person, to
give specimen signatures or handwriting for the purposes of any investigation or proceeding under the Code of Criminal
Procedure.
12. None of the said amendments specifically authorize or empower a Magistrate to direct an Accused person or any
other person to give his/her voice sample for the purposes of an inquiry or investigation under the Code. "Omission" of
the Legislature to specifically so provide has led the learned judge (Justice Aftab Alam) on the two judge Bench to doubt
as to whether legislative wisdom was in favour of a specific exclusion or omission so as to make a judicial exercise
through a process of interpretation impermissible.
13. The Law Commission of India, in its 87th report dated 29th August, 1980, also had an occasion to deal with the
question presently confronting the Court. The Law Commission examined the matter (almost four decades earlier) in the
context of the working of the provisions of the Identification of Prisoners Act, 1920. The view taken was that a suitable
legislation which could be in the form of an amendment to Section 5 of the Identification of Prisoners Act, 1920 would
be appropriate so as to specifically empower a Judicial Magistrate to compel an Accused person to give a sample of his
voice. The following extract from the 87th Report of the Law Commission dated 29th August, 1980 would be relevant.
A voice print is a visual recording of voice. It mainly depends on the position of "formants". These are concentrates of
sound energy at a given frequency. It is stated that their position in the "frequency domain" is unique to each speaker.
Voice prints resemble finger prints, in that each person has a distinctive voice with characteristic features dictated by
vocal cavities and articulates.
Voice-print Identification seems to have a number of practical uses. In England, in November 1967, at the Winchester
Magistrate's Court, a man was Accused of making malicious telephone calls. Voice-print Identification (spectrograph)
was used and the Accused was found guilty.1
*** *** ***
Often, it becomes desirable to have an Accused person speak for the purposes of giving to the police an opportunity to
hear his voice and try to identify it as that of the criminal offender. A comparison may even be desired between the
voice of an Accused person and the recorded voice of a criminal which has been obtained by, say, telephone tapping. To
facilitate proof of the crime the police may like that the Accused should be compelled to speak,-and even that his voice
as recorded may be converted into a "voice print"
.....................................................................
.....................................................................
However, if the Accused refuses to furnish such voice, there is no legal sanction for compelling him to do so, and the
use of force for that purpose would be illegal.2
*** *** ***
The scope of Section 5 needs to be expanded in another aspect. The general power of investigation given to the police
under the Code of Criminal Procedure may not imply the power to require the Accused to furnish a specimen of his
voice. Cases in which the voice of the Accused was obtained for comparison with the voice of the criminal offender are

Page 219
known but the question whether the Accused can be compelled to do so does not seem to have been debated so far in
India.
There is no specific statutory provision in India which expressly gives power to a police officer or a court to require an
Accused person to furnish a specimen of his voice.3
14. Section 5 of the Identification of Prisoners Act, 1920 coincidentally empowers the Magistrate to order/direct any
person to allow his measurements or photographs to be taken for the purposes of any investigation or proceeding. It
may be significant to note that the amendments in the Code of Criminal Procedure, noticed above, could very well have
been a sequel to the recommendation of the Law Commission in its Report dated 29 th August, 1980 though the said
recommendation was in slightly narrower terms i.e. in the context of Section 5 of the Identification of Prisoners Act,
1920. In this regard, it may also be usefully noticed that though this Court in State of Uttar Pradesh v. Ram Babu
Misra MANU/SC/0246/1980 : A.I.R. 1980 S.C. 791 after holding that a Judicial Magistrate has no power to direct an
Accused to give his specimen writing for the purposes of investigation had suggested to Parliament that a suitable
legislation be made on the analogy of Section 5 of the Identification of Prisoners Act, 1920 so as to invest a Magistrate
with the power to issue directions to any person including an Accused person to give specimen signatures and writings.
The consequential amendment, instead, came by way of insertion of Section 311-A in the Code of Criminal Procedure
by the Code of Criminal Procedure (Amendment) Act, 2005 (Act No. 25 of 2005) with effect from 23 rd June, 2006.
15. The legislative response in remaining silent or acting at a "slow" pace can always be explained by legislative concerns
and considerations of care and caution. It is in the aforesaid context and in the admitted absence of any clear statutory
provision that the question arising has to be answered which is primarily one of the extent to which by a process of
judicial interpretation a clear gap in the statute should be filled up pending a formal legislative exercise. It is the aforesaid
question that we shall now turn to.
16. "Procedure is the handmaid, not the mistress, of justice and cannot be permitted to thwart the fact-finding
course in litigation"4. We would like to proceed in the matter keeping the above view of this Court in the backdrop.
17. A detailed reference to the facts of a case decided by this Court in " Sushil Kumar Sen v. State of Bihar"
MANU/SC/0028/1975 : (1975) 1 SCC 774 is deemed appropriate.
The Appellant in the above case was the owner of a plot of land measuring about 3.30 acres located in the district of
Purnea in Bihar. The said parcel of land was acquired under the provisions of the Land Acquisition Act, 1894. The Land
Acquisition Officer by order/Award dated 12th October, 1957 awarded compensation to the Appellant(s) therein at the
rate of Rs. 14 per katha. The learned Additional District Judge, Purnea while hearing the reference Under Section 18 of
the Land Acquisition Act, 1894 enhanced the compensation to Rs. 200 per katha. This was by order dated 18th August,
1961. The State of Bihar sought a review of the aforesaid order dated 18 th August, 1961 which was allowed on 26th
September, 1961 scaling down the compensation to Rs. 75 per katha. Not satisfied, the State of Bihar preferred an
appeal before the High Court against the order dated 26 th September, 1961 passed in the review application granting
compensation at the rate of Rs. 75 per katha. No appeal was, however, filed by the State of Bihar against the original
order dated 18th August, 1961 awarding compensation at the rate of Rs. 200 per katha. Cross appeal(s) before the High
Court against the order dated 26th September, 1961 passed in the review application was filed by the Appellant-
landowner. The High Court by its order dated 16th February, 1968 held the review application of the State of Bihar, in
which the order dated 26th September, 1961 was passed, to be not maintainable. However, the High Court adjudicated
the case on merits and awarded compensation to the landowner(s) at the rate of Rs. 75 per katha. Aggrieved, the
landowner-Sushil Kumar Sen approached this Court.
Justice K.K. Mathew who delivered the lead judgment in the case took the view that the original decree/award of the
Reference Court dated 18th August, 1961 stood superseded by the decree/award dated 26 th September, 1961 passed in
the review application. However, once the said decree/award dated 26 th September, 1961 was set aside in the cross
appeal filed by the landowner(s) the earlier decree/award dated 18th August, 1961 stood revived. As there was no appeal
against the said decree/award dated 18th August, 1961 the landowner(s) would be entitled to compensation in terms of
the said original decree/award dated 18th August, 1961.

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Justice Krishna Iyer delivered a concurring opinion agreeing with the aforesaid conclusions but expressing a thought
process which would be of significant relevance to the issue in hand. The position can be best explained by extracting
the following observations from the opinion rendered by Justice Krishna Iyer in Sushil Kumar Sen v. State of Bihar
(supra)
I concur regretfully with the result reached by the infallible logic of the law set out by my learned Brother Mathew, J.
The mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at
the law reformer.
6. The processual law so dominates in certain systems as to overpower substantive rights and substantial
justice. The humanist Rule that procedure should be the handmaid, not the mistress, of legal justice compels
consideration of vesting a residuary power in Judges to act ex debito justitiae where the tragic sequel otherwise
would be wholly inequitable. In the present case, almost every step a reasonable litigant could take was taken by the
State to challenge the extraordinary increase in the rate of compensation awarded by the civil court. And, by hindsight,
one finds that the very success, in the review application, and at the appellate stage has proved a disaster to the party.
Maybe, Government might have successfully attacked the increase awarded in appeal, producing the additional evidence
there. But maybes have no place in the merciless consequence of vital procedural flaws. Parliament, I hope, will
consider the wisdom of making the Judge the ultimate guardian of justice by a comprehensive, though guardedly
worded, provision where the hindrance to rightful relief relates to infirmities, even serious, sounding in procedural law.
Justice is the goal of jurisprudence -- processual, as much as substantive. While this appeal has to be allowed,
for reasons set out impeccably by my learned brother, I must sound a pessimistic note that it is too puritanical
for a legal system to sacrifice the end product of equity and good conscience at the altar of processual
punctiliousness and it is not too radical to avert a breakdown of obvious justice by bending sharply, if need be,
the prescriptions of procedure. The wages of procedural sin should never be the death of rights.
18. In the present case, the view that the law on the point should emanate from the Legislature and not from the Court,
as expressed in the judgment of this Court from which the reference has emanated is founded on two main reasons, viz.,
(i) the compulsion to give voice sample does in some way involve an invasion of the rights of the individual and to bring
it within the ambit of the existing law would require more than reasonable bending and stretching of the principles of
interpretation and (ii) if the legislature, even while making amendments in the Code of Criminal Procedure (Act No. 25
of 2005), is oblivious and despite express reminders chooses not to include voice sample either in the newly introduced
explanation to Section 53 or in Sections 53A and 311A of Code of Criminal Procedure, then it may even be contended
that in the larger scheme of things the legislature is able to see something which perhaps the Court is missing.
19. Insofar as the first reservation is concerned, the same would stand dispelled by one of the earlier pronouncements of
this Court on the subject in State of Bombay v. Kathi Kalu Oghad (supra), relevant extracts of which judgment has
already been set out. The following views in the concurring opinion of Justice K.C. Das Gupta in State of Bombay v.
Kathi Kalu Oghad (supra) would further strengthen the view of this Court to the contrary.
(32) ...It has to be noticed that Article 20(3) of our Constitution does not say that an Accused person shall not
be compelled to be a witness. It says that such a person shall not be compelled to be a witness against himself.
The question that arises therefore is: Is an Accused person furnishing evidence against himself, when he gives
his specimen handwriting, or impressions of his fingers, palm or foot? The answer to this must, in our opinion,
be in the negative.
(33) ...the evidence of specimen handwriting or the impressions of the Accused person's fingers, palm or foot, will
incriminate him, only if on comparison of these with certain other handwritings or certain other impressions, identity
between the two sets is established. By themselves, these impressions or the handwritings do not incriminate the
Accused person, or even tend to do so. That is why it must be held that by giving these impressions or specimen
handwriting, the Accused person does not furnish evidence against himself. So, when an Accused person is compelled to
give a specimen handwriting or impressions of his finger, palm or foot, it may be said that he has been compelled to be a
witness; it cannot however be said that he has been compelled to be a witness against himself.
20. So far as the second basis for the view taken is concerned, we have already expressed an opinion that what may
appear to be legislative inaction to fill in the gaps in the Statute could be on account of justified legislative concern and

Page 221
exercise of care and caution. However, when a yawning gap in the Statute, in the considered view of the Court, calls for
temporary patchwork of filling up to make the Statute effective and workable and to sub-serve societal interests a
process of judicial interpretation would become inevitable.
21. The exercise of jurisdiction by Constitutional Courts must be guided by contemporaneous realities/existing realities
on the ground. Judicial power should not be allowed to be entrapped within inflexible parameters or guided by rigid
principles. True, the judicial function is not to legislate but in a situation where the call of justice and that too of a large
number who are not parties to the lis before the Court, demands expression of an opinion on a silent aspect of the
Statute, such void must be filled up not only on the principle of ejusdem generis but on the principle of imminent
necessity with a call to the Legislature to act promptly in the matter.
22. Illustratively, we may take the decision of this Court in Bangalore Water Supply & Sewerage Board v. A Rajappa
and Ors. MANU/SC/0257/1978 : (1978) 2 SCC 213. A lone voice of dissent against expansion of the frontiers of
judicial interpretation to fill in gaps in the Statute enunciated by Lord Denning, L.J., in Seaford Court Estates Ltd. v.
Asher (1949) 2 All. E.R. 155 (at 164) though did not find immediate favour of the learned Judge's contemporaries was
acknowledged to have carried within itself the vision and the perception of the future. Coincidentally, the view
enunciated by Lord Justice Denning in Seaford Court Estates Ltd. v. Asher (supra) of ironing of the creases in the
legislation has been approved by the Indian Supreme Court in the following words of the then Chief Justice M.H. Beg:
147. My learned Brother has relied on what was considered in England a somewhat unorthodox method of construction
in Seaford Court Estates Ltd. v. Asher [(1949) 2 ALL ER 155, 164] where Lord Denning, L.J., said:
When a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on
the constructive task of finding the intention of Parliament -- and then he must supplement the written words
so as to give 'force and life' to the intention of legislature. A Judge should ask himself the question how, if the
makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it
out? He must then do as they would have done. A Judge must not alter the material of which the Act is woven,
but he can and should iron out the creases.
When this case went up to the House of Lords it appears that the Law Lords disapproved of the bold effort of Lord
Denning to make ambiguous legislation more comprehensible. Lord Simonds found it to be "a naked usurpation of the
legislative function under the thin disguise of interpretation". Lord Morton (with whom Lord Goddard entirely agreed)
observed: "These heroics are out of place" and Lord Tucker said "Your Lordships would be acting in a legislative rather
than a judicial capacity if the view put forward by Denning, L.J., were to prevail."
148. Perhaps, with the passage of time, what may be described as the extension of a method resembling the
"arm-chair rule" in the construction of wills. Judges can more frankly step into the shoes of the legislature
where an enactment leaves its own intentions in much too nebulous or uncertain a state. In M. Pentiah v. Muddala
Veeramallappa [MANU/SC/0263/1960 : AIR 1961 SC 1107, 1115] Sarkar, J., approved of the reasoning, set out above,
adopted by Lord Denning. And, I must say that, in a case where the definition of "industry" is left in the state in which
we find it, the situation perhaps calls for some judicial heroics to cope with the difficulties raised.
23. A similar view of Lord Justice Denning in Magor & St. Mellons Rural District Council v. Newport Corporation
MANU/UKHL/0007/1951 : (1951) 2 All.E.R. 1226 would be equally apt to notice.
we sit here to find out the intention of Parliament and of ministers and carry it out, and we do this better by filling in the
gaps and making sense of the enactment than by opening it up to destructive analysis.
24. Would a judicial order compelling a person to give a sample of his voice violate the fundamental right to privacy
Under Article 20(3) of the Constitution, is the next question. The issue is interesting and debatable but not having been
argued before us it will suffice to note that in view of the opinion rendered by this Court in Modern Dental College
and Research Centre and Ors. v. State of Madhya Pradesh and Ors. MANU/SC/0495/2016 : (2016) 7 SCC 353,
Gobind v. State of Madhya Pradesh and Anr. MANU/SC/0119/1975 : (1975) 2 SCC 148 and the Nine Judge's
Bench of this Court in K.S. Puttaswamy and Anr. v. Union of India and Ors. MANU/SC/1044/2017 : (2017) 10
SCC 1 the fundamental right to privacy cannot be construed as absolute and but must bow down to compelling public
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interest. We refrain from any further discussion and consider it appropriate not to record any further observation on an
issue not specifically raised before us.
25. In the light of the above discussions, we unhesitatingly take the view that until explicit provisions are engrafted in the
Code of Criminal Procedure by Parliament, a Judicial Magistrate must be conceded the power to order a person to give a
sample of his voice for the purpose of investigation of a crime. Such power has to be conferred on a Magistrate by a
process of judicial interpretation and in exercise of jurisdiction vested in this Court Under Article 142 of the
Constitution of India. We order accordingly and consequently dispose the appeals in terms of the above.
1Paragraph 5.27, 87th Report of the Law Commission of India

4MANU/SC/0280/1974 : A.I.R. 1975 SC 349 [Vatal Nagaraj v. R. Dayanand Sagar)

Page 223
MANU/SC/0599/2021
Aman Preet Singh

Vs.
C.B.I., through Director
Sanjay Kishan Kaul and M.M. Sundresh, JJ.
ORDER
1. Leave granted.
2. This is one more case based on a misconception and misunderstanding of Section 170, Code of Criminal
Procedure!
3. An FIR No. RC16/S/2014, dated 05.06.2014, at PS, CBI/SCB/SPE, Kolkata was registered and during the
investigation, the Appellant before us had joined the investigation. The Appellant approached this Court out of
proceedings arising in respect of the plea seeking grant of anticipatory bail in Criminal Appeal No. 468/2021 which
was disposed of on 06.05.2021. The said order reads as under:
xxxxx
It cannot be disputed that the prosecution did not seek the interrogation of the Appellant on or before filing of the
charge sheet. Charge sheet has been filed. This being the position, learned Counsel for the Appellant confines the
relief only to appear before the Trial Court and apply for regular bail and he be not arrested in that period of time.
In the given factual situation, we grant protection to the Appellant for a period of 8 weeks, within which he may
apply for regular bail before the Trial Court and obtain necessary orders.
xxxxxx
4. A reading of the aforesaid thus makes it clear that custodial interrogation of the Appellant was not required
during investigation and charge sheet having been filed, there was really no occasion to arrest the Appellant. We
thus granted liberty to the Appellant to appear before the trial Court and apply for regular bail while protecting him
during the interregnum period. The present proceedings have arisen out of the requirement of the Appellant to seek
regular bail in terms aforesaid. Suffice to say that the special Chief Judicial Magistrate (CBI), Bhubaneshwar, vide
order dated 22.07.2019 noticed that since the Accused persons had been charge sheeted for Economic offences, it
was appropriate to issue non-bailable warrants of arrest against the Accused, including the Appellant before us.
5. The circumstances under which the impugned order was passed and thereafter the Appellant approached this
Court was noticed in our order dated 28.07.2021. We may notice that what was stated before us was that as per the
SOP in these difficult times, the Appellant was supposed to join virtually and when he sought to enter appearance,
his request was declined by order dated 09.06.2021 by the Special Chief Judicial Magistrate (CBI), Bhubaneshwar
predicated on the reasoning that he had not remained physically present. It is this order which had been upheld by
the impugned judgment dated 09.07.2021. We thus protected the Appellant against arrest with the direction to
continue to attend the trial Court proceedings virtually in the then prevalent scenario and as and when physical
Courts start working, the proceedings would be attended physically.
6. It is not in dispute that the Appellant had thereafter joined the proceedings physically as proceedings in the Court
commenced accordingly.

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7. Learned Counsel for the Appellant has brought to our attention to the proceedings recorded on 26.08.2021
before the Magistrate to submit that the highhandedness of the Respondent is apparent from the fact that the public
prosecutor, despite these orders from this Court, sought to plead that the Appellant had not been allowed any bail,
non bailable warrants had been issued against him, the direction of this Court for the Appellant not to be arrested
did not mean that he could not be sent to judicial custody and since this Court observed that he could attend
virtually till physical hearing started, which had by then resumed, he should be sent to judicial custody. We may only
note all these submissions are completely inappropriate and indefensible. Neither did the learned Additional
Solicitor General seek to contend except stating that those are only submissions. We expect a public prosecutor to
be conscious of the legal position and fair while making submissions before the Court. We say no more as at least
the Chief Judicial Magistrate understood the order clearly and thus did not agree with the submission of the public
prosecutor.
8. No counter affidavit has been filed by the Respondent, CBI despite opportunity granted, but learned Additional
Solicitor General on the basis of SOP seeks to submit that the Appellant was required to appear physically in Court.
She does not seriously oppose the bail application.
9. In our view, the purport of Section 170, Code of Criminal Procedure should no more be in doubt in view of the
recent judgment passed by us in Siddharth v. State of Uttar Pradesh and Anr. (Criminal Appeal No. 838/2021). In
fact we put to learned Senior Counsel whether he has come across any view taken by this Court qua the said
provision. Learned Counsel also refers to judgments of the High Court which we have referred to in that judgment
while referring to some judicial pronouncements of this Court on the general principles of bail. The only additional
submission made by learned Counsel is that while the relevant paragraphs of the judgment of the Delhi High Court
in Court on its own Motion v. Central Bureau of Investigation MANU/DE/0026/2004 : (2004) 72 DRJ 629 have
received the imprimatur of this Court, the extracted portions from the judgment of the Delhi High Court did not
include para 26. The said paragraph deals with directions issued to the criminal Courts and we would like to extract
the portion of the same as under:
26. Arrest of a person for less serious or such kinds of offence or offences those can be investigated without arrest
by the police cannot be brooked by any civilized society.
Directions for Criminal Courts:
(i) Whenever officer-in-charge of police station or Investigating Agency like CBI files a charge-sheet without
arresting the Accused during investigation and does not produce the Accused in custody as referred in Section 170,
Code of Criminal Procedure the Magistrate or the Court empowered to take cognizance or try the Accused shall
accept the charge-sheet forthwith and proceed according to the procedure laid down in Section 173, Code of
Criminal Procedure and exercise the options available to it as discussed in this judgment. In such a case the
Magistrate or Court shall invariably issue a process of summons and not warrant of arrest.
(ii) In case the Court or Magistrate exercises the discretion of issuing warrant of arrest at any stage including the
stage while taking cognizance of the charge-sheet, he or it shall have to record the reasons in writing as
contemplated Under Section 87, Code of Criminal Procedure that the Accused has either been absconding or shall
not obey the summons or has refused to appear despite proof of due service of summons upon him.
(iii) Rejection of an application for exemption from personal appearance on any date of hearing or even at first
instance does not amount to non-appearance despite service of summons or absconding or failure to obey
summons and the Court in such a case shall not issue warrant of arrest and may either give direction to the Accused
to appear or issue process of summons.
(iv) That the Court shall on appearance of an Accused in a bailable offence release him forthwith on his furnishing a
personal bond with or without sureties as per the mandatory provisions of Section 436, Code of Criminal Procedure
(v) The Court shall on appearance of an Accused in non-bailable offence who has neither been arrested by the
police/Investigating Agency during investigation nor produced in custody as envisaged in Section 170, Code of
Criminal Procedure call upon the Accused to move a bail application if the Accused does not move it on his own
and release him on bail as the circumstance of his having not been arrested during investigation or not being
produced in custody is itself sufficient to entitle him to be released on bail. Reason is simple. If a person has been at
large and free for several years and has not been even arrested during investigation, to send him to jail by refusing

Page 225
bail suddenly, merely because charge-sheet has been filed is against the basic principles governing grant or refusal of
bail.
xxxxxxxxxx
10. A reading of the aforesaid shows that it is the guiding principle for a Magistrate while exercising powers Under
Section 170, Code of Criminal Procedure which had been set out. The Magistrate or the Court empowered to take
cognizance or try the Accused has to accept the charge sheet forthwith and proceed in accordance with the
procedure laid down Under Section 173, Code of Criminal Procedure It has been rightly observed that in such a
case the Magistrate or the Court is required to invariably issue a process of summons and not warrant of arrest. In
case he seeks to exercise the discretion of issuing warrants of arrest, he is required to record the reasons as
contemplated Under Section 87, Code of Criminal Procedure that the Accused has either been absconding or shall
not obey the summons or has refused to appear despite proof of due service of summons upon him. In fact the
observations in Sub-para (iii) above by the High Court are in the nature of caution.
11. Insofar as the present case is concerned and the general principles Under Section 170 Code of Criminal
Procedure, the most apposite observations are in sub-para (v) of the High Court judgment in the context of an
Accused in a non-bailable offence whose custody was not required during the period of investigation. In such a
scenario, it is appropriate that the Accused is released on bail as the circumstances of his having not been arrested
during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail. The
rationale has been succinctly set out that if a person has been enlarged and free for many years and has not even
been arrested during investigation, to suddenly direct his arrest and to be incarcerated merely because charge sheet
has been filed would be contrary to the governing principles for grant of bail. We could not agree more with this.
12. If we may say, the observation hereinabove would supplement our observations made in Siddharth v. State of
Uttar Pradesh and Anr. (supra) and must be read together with that judgment.
13. The given factual scenario completely fits the aforesaid as the Appellant was never taken into custody during
investigation. Suffice to say that it would be a fit case for the trial Court to grant bail to the Appellant on the next
date on terms and conditions to its satisfaction. As a measure of precaution, largely arising from the manner of
submission of public prosecutor before the trial Court, it is made clear that the interim protection granted by this
Court would continue till the appropriate order is passed by the trial Court.
14. In order to prevent situations of the kind which have arisen and repeatedly arise, it may be appropriate for the
High Courts to circulate the judgments passed in Siddharth v. State of Uttar Pradesh and Anr. (supra) and passed
today to the trial Courts as the problem appear to be endemic.
15. The appeal is accordingly allowed in the aforesaid terms leaving the parties to bear their own costs.

Page 226
MANU/SC/0097/1983
Equivalent Citation: 1983(7)ACR273(SC), AIR1983SC595, 1983(31)BLJR337, 1983KLJ622, 1983PLJR107,

1983(1)SCALE376, (1983)3SCC42, [1983]2SCR724
Appellants: Dr. S.S. Khanna

Vs.
Respondent: Chief Secretary, Patna and Anr.
Hon'ble Judges:
A. N. Sen and E. S. Venkataramiah, JJ.
JUDGMENT
1. The question for consideration in this case is whether a person against whom a complaint is filed alongwith some
other person and who after an enquiry under Section 202 of the CrPC, 1973 (Act 2 of 1974) (hereinafter referred to as
the Code) is not proceeded against by the court can be summoned at a later stage under Section 319 of the Code to
stand trial for the very same or connected offence or offences alongwith the other person against whom process had
been issued earlier by the court.
2. This is an appeal by special leave against the judgment and order dated May 2, 1979 of the High Court of Patna in
Criminal Misc. No. 405 of 1979.
3. A complaint was preferred by the second respondent herein before the Chief Judicial Magistrate, Ranchi, to take
action against the appellant and one Banktesh Prasad alleging that Banktesh Prasad had committed certain acts which
amounted to offences punishable under Sections 323 and 504 I.P.C. and that the appellant had abetted the offence
under Section 323 and had also committed an offence punishable under Section 506 I.P.C. Banktesh Prasad was the
Security Officer of the National Institute of Foundry and Forge Technology, The appellant was its Director. The
complainant was the General Secretary of the association of the employees of the Institute. The alleged incident is stated
to have taken place as a consequence of a certain labour dispute. After recording the statement of the complainant on
solemn, affirmation and the evidence of six witnesses, the Chief Judicial Magistrate felt that there was no prima facie
case made out for proceeding against the appellant and accordingly he declined to issue process against him. He,
however, took cognizance of the case against Banktesh Prasad and issued process against him for his appearance on
September 15, 1976. The case was transferred to the file of the Judicial Magistrate, 1st, Class, Ranchi for disposal. The
complainant filed a revision petition, before the Judicial Commissioner, Ranchi, against the order of the Chief Judicial
Magistrate dropping the proceedings against the appellant. That petition was dismissed by the Judicial Commissioner on
November 24, 1976.
4. The proceedings against Banktesh Prasad were continued before the Judicial Magistrate, 1st Class, Ranchi, as directed
by the Chief Judicial Magistrate. In the course of those proceedings, it appears, that the prosecution witnesses deposed
on oath that the appellant had ordered Banktesh Prasad to hit the complainant and that the appellant had also taken out
his revolver and threatened to shoot and kill the complainant's party by pointing the revolver towards them. After such
evidence was recorded the complainant made an application under Section 319 of the Code to summon the appellant to
stand trial alongwith Banktesh Prasad. That application was allowed by the magistrate on April 2, 1979 holding that there
was sufficient evidence in the case suggesting that the appellant had committed offences punishable under Sections
323/109 and 506 I.P.C. and that the appellant should be summoned to face the trial alongwith the other accused. The
appellant questioned the order of the magistrate before the Patna High Court at Ranchi in a revision petition. That
petition was dismissed. This appeal by special leave is filed against the order of the High Court on the revision petition.

Page 227
Section 319 of the Code reads:
319. Power to proceed against other persons appearing to be guilty of offence- (1) Where, in the course of any inquiry
into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any
offence for which such person could be tried together with the accused, the Court may proceed against such person for
the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case
may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by Such Court for
the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under Sub-section (1) then-
(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;
(b) subject to the provisions of Clause (a), the case may proceed as if such person had been an accused person when the
Court took cognizance of the offence upon which the inquiry or trial was commenced.
5. The provision corresponding to Section 319 of the Code was Section 351 of the former Criminal Procedure Code of
1898. Section 351 of the old Code provided that any person attending a criminal court although not under arrest or upon
a summons, might be detained by such court for the purpose of inquiry into or trial of any offence of which such court
could take cognizance and which from the evidence might appear to have been committed and might be proceeded
against as though he had been arrested or summoned. It further provided that when such detention took place in the
course of an inquiry under Chapter XVIII of the old Code or after a trial had begun the proceedings in respect of such
person should be commenced afresh and the witnesses re-heard. Under that section it was not open to the Court to
summon a person who was not attending the court and join him in a pending criminal proceeding even though it
appeared to the court that evidence in the proceedings disclosed that such person was also involved in the commission
of any offence connected with the one for which the accused already before the Court was on trial. Since it was found
desirable to empower the criminal court to take action against such person also, Parliament on the recommendation of
the Law Commission in its 41st Report introduced Section 319 in the present code as set out above.
6. The point to be decided in this case is whether when a magistrate had declined to issue process against a person at the
stage of an inquiry under Section 202 of the Code, he can later on summon him under Section 319 of the Code.
7. An inquiry under Section 202 of the Code is not in the nature of a trial for there can be in law only one trial in respect
of any offence and that a trial can commence only after process is issued to the accused. The said proceedings are not
strictly proceedings between the complainant and the accused. A person against whom a complaint is filed does not
become an accused until it is decided to issue process against him. Even if he participates in the proceedings under
Section 202 of the Code, he does so not as an accused but as a member of the public. The object of the inquiry under
Section 202 is the ascertainment of the fact whether the complaint has any valid foundation calling for the issue of
process to the person complained against or whether it is a baseless one on which no action need be taken. The section
does not require any adjudication to be made about the guilt or otherwise of the person against whom the complaint is
preferred. Such a person cannot even be legally called to participate in the proceedings under Section 202 of the Code.
The nature of these proceedings is fully discussed by this Court in two cases Vadilal Panchal v. Dattatraya Dulaji
Ghadigaonker and Anr. MANU/SC/0059/1960 : [1961]1SCR1 and Chandra Deo Singh v. Prokash Chandra Bose and
Anr. MANU/SC/0053/1963 : [1964]1SCR639 in which Section 202 of the former CrPC arose for consideration. The
present Section 202 being a substantial reproduction of the former Section 202, the observations made by this Court on
,the nature of proceedings under that section would have to be accepted as governing the proceedings under Section 202
of the Code.
8. Even so two of the modifications made in the present Section 202(1) deserve attention. In Section 202(1) of the old
Code where a magistrate decided to postpone the issue of process for compelling the attendance of the person
complained against he had to record reasons in writing in support of such decision. That obligation is no longer there
Page 228
under the present section. Secondly, the purpose of holding an inquiry under Section 202(1) of the old code was stated
to be 'ascertaining the truth or falsehood of the complaint'. Under the new section the inquiry contemplated is for the
purpose of deciding whether or not there is sufficient ground for proceeding. The amendment now made brings out
clearly the purpose of the inquiry under Section 202 even though words used in the former section had also been
understood by courts in the same way in which the present section is worded. Thus the section has been brought in
accord with the language of Section 203 which empowers the magistrate to dismiss a complaint if he is of opinion that
there is no sufficient ground for proceeding'. The object of the latter change in Section 202 is to be found in the 41st
Report of the Law Commission which opined thus:
16.9. Section 202 says in terms that the further inquiry or investigation is intended for the purpose of ascertaining the
truth or falsehood of the complaint.
We consider this inappropriate, as the truth or falsehood of the complaint cannot be determined at that stage; nor is it
possible for a magistrate to say that the complaint before him is true when he decides to summon the accused. The real
purpose is to ascertain whether grounds exist for 'proceeding further", which expression is in fact used in Section 203.
We think therefore that the language of Section 202 should correspond to the language of Section 203, and we have
accordingly made suitable verbal alterations.
9. The effect of dismissal of a complaint under Section 203 of the old Code has been dealt with by this Court in
Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar [1962] Supp. 2 S.C.R. 297. Kapur, J. who wrote the majority judgment
observed at page 354 thus:
An order of dismissal under Section 203, Criminal Procedure Code, is however, no bar to the entertainment of a second
complaint on the same facts but it will be entertained only in exceptional circumstances, e.g. where the previous order
was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly
absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the
record in the previous proceedings have been adduced.
10. As rightly commented by the Law Commission the circumstances mentioned by the Court in the above passage
cannot be exhaustive of all the circumstances when a second complaint can be in otherwise in entertained. A second
complaint may be entertained appropriate Cases too, though it should be for extraordinary reasons.
11. Having regard to the nature of the proceedings under Section 202 of the Code, it may be difficult to hold that there
is a legal bar based on the principle of issue estoppel to proceed against a person complained against on the same
material if the Court has dismissed a complaint under Section 203. But it is not necessary to express any final opinion on
that question since in the instant case, it is seen that the magistrate decided to take action under Section 319 of the Code
on the basis of fresh evidence which was brought on record in the course of the proceedings that took place after the
inquiry contemplated under Section 202 of the Code was over and in the course of the trial against Banktesh Prasad. The
autre fois principle adumbrated, in Section 300 of the Code cannot however, apply to this case.
12. Even when an order of the magistrate declining to issue process under Section 202 is confirmed by a higher court,
the jurisdiction of the magistrate under Section 319 remains unaffected if other conditions are satisfied. In Municipal
Corporation of Delhi v. Ram Kishan Rohtagi and Ors. MANU/SC/0094/1982 : 1983CriLJ159 to which one of us
(Venkataramiah, J) was a party, this Court had to deal with the scope of Section 319. In that case a Food Inspector filed
a complaint before a magistrate requesting him to take action against the manager and all the directors of a company
which was engaged in the business of manufacture of a certain brand of toffees for violating certain provisions of the
Prevention of Food Adulteration Act, When the magistrate proceeded to take action against the accused, they
approached the High Court under Section 482 of the Code with a prayer for quashing the proceedings. The High Court
quashed the proceedings against all of them on the ground that there was no averment that any of them was in charge of
the affairs of the company which was manufacturing the toffees. On appeal to this Court, the order of the High Court in
so far as the manager was concerned was set aside as from the very nature of his duties it was clear that he was liable to
be proceeded against for the offence said to have been committed by the company. But as regards the directors, the
order of the High Court was upheld as at that stage it was found that there was not sufficient material to proceed against
them. But it was, however, made clear that if the prosecution was able to produce evidence against any of those directors

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at a later stage it was open to the trial court to proceed against him under Section 319 of the Code. In that connection
this Court observed at Page 8 thus:
This provision gives ample powers to any court to take cognizance and add any person not being an accused before it
and try him along with the other accused. This provision was also the subject-matter of a decision by this Court in
Joginder Singh v. State of Punjab MANU/SC/0103/1978 : 1979CriLJ333 where Tulzapurkar, J. speaking for the Court
observed thus 5 (at page 349)
A plain reading of Section 319(1) which occurs in Chapter XXIV dealing with general provisions as to inquiries and
trials, clearly shows that it applies to all the Courts including a Sessions Court and as such a Sessions Court will have the
power to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence
indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused, ....
In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the court that the
other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also
committed the offence the Court can take cognizance against them and try them along with other accused. But, we
would hasten to add that this is really an extraordinary power which is conferred on the court and should be used very
sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has
not been taken. More than this we would not like to say anything further at this stage. We leave the entire matter to the
discretion of the court concerned so that it may act according to law. We would, however, make it plain that the mere
fact that the proceedings have been quashed against respondents 2 to 5 will not prevent the court from exercising its
discretion if it is fully satisfied that a case for taking cognizance against them has been made out on the additional
evidence led before it.
13. It is thus clear that it cannot be said that the magistrate had no power to proceed against the appellant in this case.
On looking into the record we are of the view that the magistrate had good reason to summon the appellant under
Section 319 of the Code as it appears from the evidence led at the trial that there was a strong case made out against the
appellant for joining him in the criminal case as an accused. It is, however, not necessary to refer to this aspect of the
matter in detail having regard to the nature of the order we propose to pass in this case.
14. In the instant case, the complaint was filed in 1976. There was also a counter complaint filed against the second
respondent. The Magistrate convicted the second respondent in that case. On appeal, the Additional Judicial
Commissioner, Ranchi acquitted the second respondent and the said order of acquittal has become final. The second
respondent who was an employee of the National Institute of Foundry and Forge Technology, Ranchi had been
suspended for involvement in the incident in question. That order of suspension has since been revoked and he has
rejoined his duties after receiving all back wages. No other workman has been discharged or punished for participating
in the incident. On November 4, 1981, a settlement has been arrived at between the NIFFT Employees' Association and
the management settling all pending issues. As a consequence of the settlement, it is stated that the second respondent
has also filed an application before the Magistrate to withdraw the original complaint out of which these proceedings
have arisen. In view of these events which have taken place since the filing of the complaint and the nature of the
offences alleged to have been committed by the appellant and in the interests of industrial peace, we feel that while we
agree with the High Court on the order made by it, these proceedings initiated against the appellant should be dropped.
We, therefore, set aside the orders passed by the High Court and by the Magistrate and dismiss the application filed by
the second respondent under Section 319 of the Code.
15. The appeal is accordingly allowed.

Page 230
MANU/SC/0434/1992
Equivalent Citation: AIR1992SC2206, 1993(1)ALT(Cri)590, 1992(94)Bom.L.R.63, 1992CriLJ3779,

1991(3)Crimes820(SC), 1992(57)ELT370(S.C.), JT1991(4)SC464, 1992(1)KLT1(SC), (1992)102PLR35,
1991(2)SCALE1045, (1992)1SCC217, [1991]Supp2SCR364
Appellants:K.M. Mathew
Vs.
Respondent: State of Kerala and another
Hon'ble Judges:
K. Jagannatha Shetty and Yogeshwar Dayal, JJ.
ORDER
K. Jagannatha Shetty, J.
1. We grant special leave and proceed to dispose of the matter.
2. This appeal against a decision of the Kerala High Court raises an important question concerning the power of the
Magistrate to drop proceedings against an accused in a summons-case after process is issued.
3. The facts are simple. K.M.Mathew-appellant is the Chief Editor of Malayalam Manorma. It is a daily newspaper with
wide circulation the State of Kerala and seems to be the largest language newspaper in India. Separate editions of the
newspaper are published from different centers, namely, Trivendrum, Kottayam, Cochin and Calicut. At each of these
centers, there is a separate Editor who is responsible for selection and publication of news items. The Chief editor is
based at Kottayam and he is responsible for the general policy of the Daily and various other publications of the
Manorma group of publications. Respondent No. 2 is an advocate. He was aggrieved by a news item published in the
Daily. His case was that the news item was published with the sole object of ridiculing and defaming him. He lodged a
complaint before the court of Additional Judicial Magistrate against the Chief Editor, the Printer and Publisher of the
newspaper alleging that they have committed an offence punishable under Sections 500 & 34 IPC. The learned
Magistrate examined the complainant on oath and took the complaint on file as CC 496/85. He issued summons to the
accused. The accused upon service entered appearance and pleaded not guilty.
4. Before the evidence was recorded, the Chief Editor requested the Magistrate to drop the proceedings against him. He
contended that the complainant has not alleged that the Chief Editor was responsible for selection of the news item and
publication thereof. There was not even an averment in the complaint that the Chief Editor has perused the material or
edited before its publication or that it was published with his knowledge or consent. After hearing the parties the
Magistrate accepted the plea of the Chief Editor and dropped the proceedings against him. To be more precise, the
Magistrate directed that the complaint so far as it relates to the Chief Editor could not be proceeded with.
5. The complainant took up the matter to the High Court in revision. The High Court allowed the revision and set aside
the order of the Magistrate.
6. The High Court did not examine whether the complainant has or has not made out a case against the Chief Editor.
The High Court rested its conclusion solely on the procedural requirements of the trial of a summons-case. It has been
pointed out that in any private complaint triable as a summons-case the Magistrate, after taking cognizance of the
offence and issuing process, has no jurisdiction to drop proceedings against the accused. He is bound to proceed under
Page 231
Chapter XX of the CrPC when the accused enters appearance. He will have to state the particulars of the offence and
record the plea of the accused. When the accused pleads not guilty, he will have to hear the prosecution and take all such
evidence produced in support of the prosecution. Then he will have to hear the accused and take all such evidence
produced in support of the defence. The High Court went on to state that the question of conviction or acquittal will
arise only after recording evidence of the parties. There is no question of discharging the accused at an intermediate
stage. There is no provision in the Code for dropping the proceedings against any accused. So stating the High Court has
directed the Magistrate to proceed with the trial of all the accused.
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 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.
9. In the instant case there is no averment against the Chief Editor except the motive attributed to him. Even the motive
alleged is general and vague. The complainant seems to rely upon the presumption under Section 7 of the Press and
Registration of Books Act, 1867 ('the Act'). But Section 7 of the Act has no applicability for a person who is simply
named as 'Chief Editor'. The presumption under Section 7 is only against the person whose name is printed as 'editor' as
required under Section 5(1). There is a mandatory (though rebuttable) presumption that the person whose name is
printed as 'Editor' is the editor of every portion of that issue of the newspaper of which a copy is produced. Section 1(1)
of the Act defines 'Editor' to mean 'the person who controls the selection of the matter that is published in a
newspaper'. Section 7 raises the presumption in respect of a person who is named as the editor and printed as such on
every copy of the newspaper. The Act does not recognise any other legal entity for raising the presumption. Even if the
name of the Chief Editor is printed in the newspaper, there is no presumption against him under Section 7 of the Act.
See State of Maharashtra v. Dr. R.B.Chowdhary and Ors. MANU/SC/0085/1967 : 1968CriLJ95 ; D.P.Mishra v. Kamal
Narain Sharma and Ors., MANU/SC/0047/1970 : [1971]3SCR257 ; Narasingh Charan Mohanty v. Surendra Mohanty,
MANU/SC/0245/1973 : [1974]2SCR39 and Haji C.H.Mohammad Koya v. T.K.S.M.A. Muthukoya,
MANU/SC/0240/1978 : [1979]1SCR664 .
10. It is important to state that for a Magistrate to take cognizance of the offence as against the Chief Editor, there must
be positive averments in the complaint of knowledge of the objectionable character of the matter. The complaint in the
instant case does not contain any such allegation. In the absence of such allegation, the Magistrate was justified in
directing that the complaint so far as it relates to the Chief Editor could not be proceeded with. To ask the Chief Editor
to undergo the trial of the case merely on the ground of the issue of process would be oppressive. No person should be
tried without a prima facie case. The view taken by the High Court is untenable. The appeal is accordingly allowed. The
order of the High Court is set aside.

Page 232
MANU/SC/0051/1996
Equivalent Citation: 1995(19)ACR841(SC), AIR1996SC204, AIR83 1995 Supreme Court 204, 1995(43)BLJR1383,
1996CriLJ408, 1995(3)Crimes740(SC), JT1995(6)SC428, 1996(1)PLJR5, 1995(5)SCALE216, (1995)6SCC142,
[1995]Supp3SCR58
Appellants:Anil Saran
Vs.
Respondent: State of Bihar and another
Hon'ble Judges:
K. Ramaswamy and B. L. Hansaria, JJ.
JUDGMENT
1. Leave granted.
2. The appellant was a partner in M/s. Agjevinath Films along with the second respondent, Shiv Prakash, and another
person, Ajit Jai Tilak. The firm was constituted to distribute, exhibit and exploit the cinematography films. The firm had
entered into an agreement with producer, Bhojpuri film for distribution of 'Hamari Dulhaniya' and had two prints of the
films obtained from the laboratory at Bombay and were arranged for exhibition in Roopak Cinema, Patna. It is the case
of Shiv Prakash, the complainant on behalf of M/s. Ajgevinath Films, that the first accused, namely, M/s. Sapna
Enterprises, had contracted on June 22,1988 to take the film, exhibit the same and account for the proceeds in terms of
the contract. Pursuant thereto, M/s. Sapna Enterprises was entrusted with the second copy of the film for exhibition
and they exhibited the film from July, 1, 1988. But the first accused had not returned the print to the complainant-
second respondent with ulterior and dishonest intention to make wrongful gain and to cause wrongful loss to the second
respondent. Subsequently, it came to the knowledge of Shiv Prakash that the first accused colluded and conspired with
the appellant and Ajit with an intention to defraud the second respondent; and the firm exploited the second copy of the
film in the said cinema and "they stealthily and illegally misappropriated collections and dishonestly made wrongful gain
for themselves and caused wrongful loss to the complainant and the said concern." It was also alleged that the appellant
and Ajit induced the first accused by conspiracy to illegally obtain the films prepared for themselves and fabricated the
documents and thereby Ajit, the first accused firm and the appellant, in collusion and conspiracy with common intention
to do mischief, committed the offence referred to earlier. Admittedly, the complaint was filed before the Chief Judicial
Magistrate, Patna who, after examining the complainant, transferred the case to Judicial Magistrate-II, patna whose
Presiding Officer then was Mr. A.K. Srivastava. The learned Magistrate examined three witnesses and thereafter issued
process to the appellant and third respondent under Sections 406 and 420 IPC. The appellant thereafter filed an
application under Section 482 of the CrPC, 1973 (for short, 'the Code') before the High Court, Patna to quash the
complaint.
3. The High Court in the impugned order dismissed the application holding that the complaint prima facie discloses the
offence punishable under the sections for which cognizance was taken and process was issued to the appellant and
another. The question, therefore, is whether the complainant-second respondent made a prima facie case to take
cognizance of the offence and issued process to the appellant and others.
4. It is contended for the appellant that the Chief Judicial Magistrate, having entertained the complaint, was required to
examine other witnesses, take cognizance and then could have transferred the case, if he so desired, to a competent
Magistrate subordinate to him as envisaged by Section 192(1) of the Code. But, in this case without taking cognizance,

Page 233
the Chief Judicial Magistrate committed manifest jurisdictional error in transferring the complaint to the Magistrate who
took further action therein.
5. We find no force in the contention. Though the Code defines, "cognizable offence" and "non-cognizable offence",
the word "cognizance1 has not been defined in the Code. But it is now settled law that the court takes cognisance of the
offence and not the offender. As soon as the Magistrate applies his judicial mind to the offence stated in the complaint
or the police report etc. cognisance is said to be taken. Cognizance of the offence takes place when the Magistrate takes
judicial notice of the offence. Whether the Magistrate has taken cognizance of offence on a complaint or on a police
report or upon information of a person other than the police officer, depends upon further steps taken pursuant thereto
and the attending circumstances of the particular case including the mode in which case is sought to be dealt with or the
nature of the action taken by the Magistrate. Under Sub-section (1) of Section 190 of the code, any Magistrate may take
cognizance of an offence (a) upon receiving a complaint of facts which constitute such offence, (b) upon a police report
of such facts, and (c) upon information received from any person other than a police officer, or upon his own
knowledge, that such offence has been committed.
6. Sub-section (1) of Section 192 has conferred a special power on the Chief Judicial Magistrate, as, normally, the
Magistrate taking cognizance of an offence, has himself to proceed further as enjoined by the Code. But, an exception
has been made in the case of Chief Judicial Magistrate, may be because he has some administrative functions also to
perform. A Magistrate who receives the case on transfer and takes cognizance would not become incompetent to do so
merely because the sanction of transfer of the case to his file is not in accordance with law. The power to take
cognizance has been conferred on a Magistrate by Section 190(1) of the Code, and he would not be denuded of this
power because the case has come to his file pursuant to some illegal order of the Chief Judicial Magistrate. The former
would be exercising his power of taking cognizance even in such a case, because of his having received a complaint
constituting the offence. It would not be material, for this purpose, as to how he came to receive the complaint - directly
or on transfer from the Chief Judicial Magistrate.
7. We are, therefore, of the opinion that no error of jurisdiction was committed by the Judicial Magistrate in taking
cognizance of the offence.
8. It is next contended that the appellant, being a partner in the complainant firm, cannot be said to have committed
criminal breach of trust of his own funds and that, therefore, it is a case of civil liability only. The contention that one
partner cannot commit criminal breach of trust against other partners, though prima facie alluring, on facts of this case,
it does not appear to be tenable. Partnership firm is not a legal entity but a legal mode of doing business by all the
partners. Until the firm is dissolved as per law and the accounts settled, all the partners have dominion in common over
the property and funds of the firm. Only after the settlement of accounts and allotment of respective share, the partner
becomes owner of his share. However, criminal breach of trust under Section 406 is not in respect of the property
belonging to the partnership firm, but is an offence committed by a person in respect of the property which has been
specially entrusted to such a person under a special contract and he holds that property in fiduciary capacity under
special contract. If he misappropriates the same, it is an offence.
9. At this stage, we have only to see whether the allegations made in the complaint make out the offence prima facie. It
is not the case of the complaint that the appellant and the other accused Ajit were entrusted with the dominion of the
property of the firm in their capacity as partners of the complainant firm. On the other hand, the complainant firm
entered into a contract with the first accused firm-M/s. Sapna Enterprises, entrusted the second film for exhibition and
for accounting the sale proceeds in terms of the contract and to return the film. They had neither accounted for, not
returned the film. The first accused, the appellant and Ajit, therefore, were alleged to have committed the offences in
question.
10. Under these circumstances, we do not think that the imputations alleged against the appellant have been done in his
capacity as a partner of the firm. Whether the offence has been made out, whether he is liable and what are the defences
open to him are not matters at this stage for consideration. It is for the learned Magistrate to proceed with the trial and
to deal with according to law.
11. The appeal is accordingly dismissed.

Page 234
MANU/PH/0508/1997
Equivalent Citation: (1997)115PLR623
IN THE HIGH COURT OF PUNJAB AND HARYANA
Criminal Revision No. 557 of 1987
Appellants: Mohinder Singh

Vs.
Respondent: State (Chandigarh Administration)
Hon'ble Judges:
V.S. Aggarwal, J.
JUDGMENT
V.S. Aggarwal, J.
1. Petitioner was tried by the court of Judicial Magistrate Ist Class, Chandigarh with respect to offence punishable under
Sections 7(1) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for short 'the Act'). He was
held guilty of the above said offences and sentenced to undergo rigorous imprisonment for six months and to pay a fine
of Rs. 1000/-. In default of payment of fine, he was to undergo further rigorous imprisonment for 3 months. Aggrieved
by the same, the petitioner preferred an appeal. The learned Additional Sessions Judge, Chandigarh on 20.4.1987
dismissed the appeal, as a result of the same the present revision petition has been filed.
2. The prosecution case can be briefly listed to be that on 23.1.1980 at 9.30 A.M. the petitioner was intercepted by Food
Inspector, Hazara Singh in Sector 22-B, Chandigarh. Petitioner was carrying 20 kilogram of unindicated milk for sale in a
drum. The Food Inspector introduced himself to the petitioner in presence of Arjan Singh. A notice (Ex.PA) was served
on the petitioner expressing the intention to purchase milk for purposes of analysis. 660 ML. of unindicated milk was
purchased after stirring. Payment was made against a receipt Ex.PB. The milk was divided into 3 equal parts and
converted into 3 dry and clear bottles. 18 drops of formaline were added as preservative in each bottle. Thereafter the
bottles were stoppered, labelled and sealed. One of the bottle alongwith memo of Form VII bearing specimen seal
impression was sent to the Public Analyst. On analysis contents of the sealed sample were found to be adulterated. Milk
was found to be deficient in milk fat and milk solids by 2.8% and 9% respectively of the minimum prescribed standard.
On receipt of the report of the Public Analyst, the petitioner was prosecuted.
3. The learned Judicial Magistrate had framed a charge against the petitioner for the offence punishable under Section
7(1) read with Section 16(1)(a)(i) of the Act. Petitioner had pleaded not guilty and claimed trial. The prosecution besides
examining the Food Inspector, also produced Surinder Kumar as a witness. Petitioner was examined in terms of Section
313 Cr.P.C. and incriminating evidence was put to him. The entire evidence, as such, was denied. As referred to above,
the learned Judicial Magistrate found the petitioner guilty of the above said offence and convicted him. The appeal filed
by the petitioner also failed. This led to the filing of the present revision petition.
4. At the outset it was urged that earlier a complaint was filed which had been dismissed for non prosecution and the
second complaint is not maintainable. The fact that earlier a complaint was filed which was dismissed for non
prosecution has not been disputed by the learned counsel for the State. Therefore, the short question that comes up for
consideration is as to whether the second complaint basically on the same facts could be filed or not. This question had
been considered and answered by the Supreme Court in the case of Pramatha Nath Jalukdar v. Saroj Ranjan Sarkar
MANU/SC/0149/1961 : AIR 1962 SC 876. The Supreme Court held that the second complaint is not barred. In
paragraph 48 it was held :-

Page 235
"An order of dismissal under Section 203, Criminal Procedure Code, is, however, no bar to the entertainment of a
second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g., where the previous
order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly
absurd, unjust or foolish or where new facts which could not, with reasonable diligence have been brought on the record
in the previous proceedings, have been adduced. It cannot be said to be in the interest of justice that after a decision has
been given against the complainant upon a full consideration of his case, he or any other person should be given another
opportunity to have his complaint enquired into."
To insist that special reasons must be stated, would not be a sine-qua-non before another complaint can be filed. It
always depend on the facts and circumstances of each case whether there were circumstances to entertain the second
complaint or not. If there is an abuse of the process of the court, sheer harassment, mis-statement of facts, the second
complaint can well be rejected on that ground. It will not be possible to put all the facts and circumstances in a mould.
In the present case, when the earlier complaint was dismissed for non-prosecution and the State felt the necessity of still
prosecuting the said accused and there are no mala-fide or abuse of the process of the court brought to the notice, the
complaint could well be entertained. In the present case not only the aforesaid facts makes one to conclude that second
complaint could be filed but at this belated stage, it will not be appropriate to go beyond those facts. Therefore, the
contention must fail.
5. Pertaining to the merits of the matter, what was highlighted was a procedural defect. Learned counsel urged that it is
not established that before the sample of the milk was taken, it has been stirred. But the fallacy of the argument becomes
patent from perusal of the record. In the complaint it had specifically been so stated. The evidence of the Food
Inspector also indicated that he had stirred the milk before taking the sample. The said evidence had been believed by
the learned trial Court and the first appellate court. Being so there is no reason to come to a contrary finding. The said
submission, therefore, being without merit must fail.
6. Confronted with that position yet another submission made was that when the petitioner was examined in terms of
Section 313 of the Code of Criminal Procedure the report of the Public Analyst was not put to him.
7. It must be remembered that all incriminating evidence should be put to the accused when his statement in terms of
Section 313 Code of Criminal Procedure. It has been enacted to permit the accused to give an explanation qua the
incriminating evidence against him. However, if there is any omission, in finality it has to be seen if any prejudice is
caused to the said accused or not. In the present case, the petitioner had totally denied all the facts which emerged from
the incriminating evidence. When the factum of taking the sample was denied merely because if the report of the Public
Analyst was not put to him, will not permit the petitioner to state that prejudice had been caused. In the peculiar facts
when the facts basically were denied, the learned counsel cannot urge prejudice for an ommission.
8. The last submission made in this regard was pertaining to the sentence. It was argued that incident pertains to the year
1980 and the petitioner is facing the agony of a prolonged trial and thereafter appeal and the revision, 16 years have
elapsed. The decision in the case of Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar
MANU/SC/0119/1979 : AIR 1979 SC 1360 had set the law into motion. The scope of Article 21 was extended and it
was held that expeditious disposal of the cases was an integral and essential part of the fundamental right to life and
liberty. In paragraph 5 it was held :-
"Now obviously procedure prescribed by law for depriving a person of his liberty cannot be 'reasonable, fair and just'
unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not
ensure a reasonably quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of Article 21. There can,
therefore, be no doubt that speedy trial, and by speedy trial, is an integral and essential part of the fundamental right to
life and liberty enshrined in Article 21."
The same question was considered by a Bench of the Patna High Court in State of Bihar v. Ramdaras Ahir and Ors.
MANU/BH/0246/1984. It was concluded that the word 'trial' would bring within its sweep, the appeal that would be
pending against such an order. In paragraph 17 the Court had held :-
"Therefore, there seems to be no option, but to hold that the word 'trial' in the context of the constitutional guarantee of
a speedy trial includes within its sweep a substantive appeal provided by the Code to the High Court- whether against
Page 236
conviction or against acquittal. Thus, it would follow that the constitutional right of speedy trial envisaged an equally
expeditious conclusion of a substantive appeal and not merely a technical completion of the proceedings in the original
court alone."
Subsequently, the Full Bench of Patna High Court in Anurag Baitha v. State of Bihar MANU/BH/0028/1987 reiterated
the same view and in paragraph 11 it was held :-
"If Article 21 and the right to speedy public trial is not merely a twinkling star in the high heavens to be worshipped and
rendered vociferous lip-service only but indeed is an actually meaningful protective provision, then a fortiori expeditious
hearing of substantive appeals against convictions is fairly and squarely within the mandate of the said Article."
9. Reverting back to the fact of the present case as already mentioned above, the incident pertains to a period of more
that 16 years ago. The petitioner had already undergone nearly 2 months of the sentence. As pointed out above, fair, just
and reasonable procedure is implicit in Article 21 of the Constitution. After such a prolonged period, though the petition
is without merit, it would be inappropriate to insist that petitioner can well be sent to undergo the rest of the sentence. It
would be unfair. Article 21 of the Constitution would bring within its sweep, not only expeditious trial but disposal of
appeals and revisions. The fairness to the accused-petitioner, therefore, demands in the peculiar facts of this case that
giving predominance to the said article, the sentence should be reduced to the one already undergone. Order is made
accordingly.
10. Subject to the aforesaid, the revision petition fails and is dismissed.

Page 237
MANU/SC/0688/2004
Equivalent Citation: (2004)7SCC338
Appellants:Adalat Prasad
Vs.
Respondent:Rooplal Jindal and Ors.
N. Santosh Hegde, S.B. Sinha and A.K. Mathur, JJ.
JUDGMENT
N. Santosh Hegde, J.
1. This is an appeal by leave against the judgment of the High Court of Delhi at New Delhi in Criminal Revision No.
127 of 1995 whereby the High Court allowed the said revision petition, setting aside the order of the trial court dated
28.1.1995 and remanded the matter to the Court of Magistrate for disposal in accordance with law. Brief facts necessary
for the disposal of this case are as follows :
The 1st respondent herein filed a complaint under Sections 120A, 120B, 405, 406, 415, 420, 463, 465 and 468 of the IPC
against the appellant and other respondents herein alleging that the respondents have cheated and defrauded him.
Taking cognizance of the said complaint on 26.5.1992 the learned Metropolitan Magistrate summoned the appellants
herein and other accused by issuing process under Section 204 of the Code of Criminal Procedure (the Code) for
offences confined to Section 420 read with 120B IPC.
2. Being aggrieved by the said order of issuance of process the appellant and some of the accused moved the High Court
and the High Court in the said petition directed the petitioners therein to move the trial court against the order of
summoning. Pursuant to the said order of the High Court the appellant herein filed an application purported to be under
Section 203 Cr.P.C. on 10.3.1993 and the learned trial Judge by his order dated 28.1.1995 after hearing the parties
recalled the said summons.
3. The said order of the learned Magistrate recalling the summons originally issued by him was challenged before the
High Court on the ground that the Magistrate had no jurisdiction to recall a summons issued under Section 204 of the
Code. The High Court by the impugned order has allowed the revision petition holding that while the trial court was
justified in taking cognizance of the offences punishable under Section 420 read with 120B IPC it erred in recalling the
consequential summons issued because the said court did not have the power to review its own order.
4. It is against the said order of the High Court as stated above, the appellant is before us in this appeal.
5. When this appeal came up for preliminary hearing on 13.11.2002 learned counsel appearing for the appellant relied on
a judgment of this Court in the case of K.M. Mathew v. State of Kerala & Anr. MANU/SC/0434/1992 : 1992CriLJ3779
wherein it was held that it was open to the court issuing summons to recall the same on being satisfied that the issuance
Page 238
of summons was not in accordance with law. The court which heard this matter at the preliminary stage doubted the
correctness of the judgment in Mathew's case (supra) hence referred that case of Nilamani Routray v. Bennett Coleman
& Co. Ltd. MANU/SC/1294/1998 : (1998)8SCC594 to a larger Bench. However said case of Nilamani (supra) got
settled out of court hence the issue involved in Mathew's case (supra) was not decided by the larger Bench. Therefore on
3.12.2002 this Court directed that the present appeal be placed before a 3-Judge Bench with a view to consider the
correctness of the law laid down by this Court in Mathew's case (supra). It is in this background this appeal has now
come up for our consideration.
6. As noticed above it is the correctness of the view expressed by this Court in Mathew's case which is now to be
considered by us.
7. It was held in Mathew's case (supra) that Section 204 of the Code indicates that the proceedings before the Magistrate
commences upon taking cognizance and 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. It was further held
that the need to try the accused arises only when there is an allegation in the complaint that the accused has committed
the crime. Hence, 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. In that background this Court held that it
is open to the accused served with summons to plead before the Magistrate that the process against him ought not to
have been issued and if the Magistrate is satisfied with such an argument, he may drop the proceedings on
reconsideration of the complaint on the ground that there was no offence for which accused could be tried. This Court
further observed in Mathew's case, such power is Magistrate's judicial discretion and no specific provision is required for
the Magistrate to drop proceedings or rescind the process. It also held that the order of issuing process being an interim
order and not a judgment, it can be varied or recalled. The Court also held that the fact that the process has been already
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.
8. It is thus seen that in Mathew's case (supra) this Court held that after issuance of summons under Section 204 of the
Code, it was open to the Magistrate on being satisfied at the instance of the summoned accused to reconsider its
decision of issuing summons under Section 204. This Court in that case also held that the Magistrate issuing the
summons can do so only on there being material to issue summons hence summons erroneously issued can be recalled
by the Magistrate for which no specific provision is required.
9. Having heard the learned counsel for the parties and having considered the judgment of this Court in the case of
Mathew (supra) we are unable to agree with the law laid down by this Court in the said case.
10. If we analyse the reasons given by this Court in the said case of Mathew then we notice that the said view is based on
the following facts :
(a) The jurisdiction of the Magistrate to issue process arises only if the complaint contains the allegations involving the
commission of a crime;
(b) If the process is issued without there being an allegation in the complaint involving the accused in the commission of
a crime it is open to the summoned accused to approach the court issuing summons and convince the court that there is
no such allegation in the complaint which requires his summoning;
(c) For so recalling the order of summons no specific provision of law is required;
(d) The order of issuing process is an interim order and not a judgment hence it can be varied or recalled.
11. We will examine the above findings of this Court in the background of the scheme of the Code which provides for
consideration of complaints by Magistrates and commencement of proceedings before the Magistrate which is found in
Chapters XV and XVI of the Code;

Page 239
12. Section 200 contemplates a Magistrate taking cognizance of an offence on complaint to examine the complaint and
examine upon oath the complainant and the witnesses present if any. If on such examination of the complaint and the
witnesses, if any, the Magistrate if he does not want to postpone the issuance of process has to dismiss the complaint
under Section 203 if he comes to the conclusion that the complaint, the statement of the complainant and the witnesses
has not made out sufficient ground for proceeding. Per contra if he is satisfied that there is no need for further inquiry
and the complaint, the evidence adduced at that stage has materials to proceed, he can proceed to issue process under
Section 204 of the Code
13. Section 202 contemplates: postponement of issue of process : It provides that if the Magistrate on receipt of a
complaint if he thinks fit, to postpone the issuance of process against the accused and desires further inquiry into the
case either by himself or directs an investigation to be made by a Police Officer or by such other person as he thinks fit
for the purpose of deciding whether or not there is sufficient ground for proceeding, he may do so. In that process if he
thinks it fit he may even take evidence of witnesses on oath, and after such investigation, inquiry and the report of the
Police if sought for by the Magistrate and if he finds no sufficient ground for proceeding he can dismiss the complaint
by recording briefly the reasons for doing so as contemplated under Section 203 of the Code.
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 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's case 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 for 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 provision of Sections 200 & 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
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 Code.
16. Therefore, in our opinion the observation of this Court in the case of Mathew (supra) that for recalling an order of
issuance of process erroneously, 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 inter-locutory stages. Therefore, we are of the opinion,
that the view of this Court in Mathew's case (supra) that no specific provision is required for recalling an erroneous
order, amounting to one without jurisdiction, does not lay down the correct law.
17. In view of our above conclusion, it is not necessary for us to go into the question whether order issuing a process
amounts to an interim order or not.
18. For the reasons stated above we are in agreement with the judgment of the High Court impugned herein. This appeal
fails and the same is dismissed.

Page 240
MANU/SC/0076/1965
Equivalent Citation: AIR1966SC69, 1966CriLJ75, [1965]3SCR467
Appellants: Mohammad Safi

Vs.
Respondent: The State of West Bengal
Hon'ble Judges:
A. K. Sarkar, J. R. Madholkar and R. S. Bachawat, JJ.
JUDGMENT
Mudholkar, J.
1. The only point which has been urged in this appeal by certificate from a judgment of the High Court at Calcutta is
whether the trial and conviction of the appellant for an offence under s. 409, Indian Penal Code were barred by the
provisions of s. 403 of the Code of Criminal Procedure (hereinafter referred to as the Code).
2. The facts which are not in dispute are these :
The appellant was tried for an offence under s. 409, I.P.C. by Mr. T. Bhattacharjee, Judge, Birbhum Special Court and
sentenced to undergo rigorous imprisonment for four years. His conviction was maintained in appeal by the High Court
but the sentence was reduced to rigorous imprisonment for two years. One of the point urged before the High Court
was that upon the same facts and with respect to the same offence the appellant was tried earlier by Mr. N. C. Ganguly,
Judge, Birbhum Special Court and acquitted thereof. He could, therefore, not have been tried over again in respect of
that offence and consequently his conviction and sentence are illegal.
3. What actually happened was this. The appellant who was a shed clerk at Sainthia Railway Station is alleged to have
committed criminal breach of trust with respect to 8 bags of suji which had been booked by rail at Murarai by one
Bhikam Chand Pipria, the consignee being the firm of Lalchand Phusraj of Sainthia. He was alleged to have done this in
conspiracy with Ibrahim and Nepal Chandra Das. We are not concerned with these two persons and so we can leave
them out of account. The offence was investigated into and a charge sheet was submitted against the appellant under s.
409, I.P.C. and two other persons by the Officer-in-charge, Government Railway Police, Asansol. Apparently he filed
the charge sheet himself in the court of Judge, Birbhum Special Court. However, as set out in the order of Mr. Ganguly
acquitting the appellant the case was distributed to the Birbhum Special Court for trial by notification No. 4515-J dated
May 8, 1959 (Law Judicial Department), Government of West Bengal. The prosecution examined 21 witnesses before
him and on August 28, 1959 he framed a charge against the appellant under s. 409, I.P.C. The prosecution witnesses
were cross-examined on behalf of the appellant and the court examined him under s. 342 of the Code. At the time of the
hearing of arguments the Public Prosecutor placed before him a typed copy of a judgment of the High Court in Criminal
Appeal No. 377 of 1958 in which it was held that a Special Court cannot, in view of the amendment of s. 5(1) of the
West Bengal Criminal Law Amendment (Special Courts) Act, 1949 by Act 27 of 1956 take cognizance upon a charge
sheet because it is neither entitled to follow the procedure for trial under s. 251-A nor can it take cognizance under s.
190(1)(c) unless in the latter case the provisions of s. 191 of the Code were complied with. The attention of the learned
Judge was also drawn to A. P. Misra v. The State [1958] Cr. L.J. 1386, where it was held that where a magistrate could
not legally take cognizance of an offence on the basis of a charge sheet the entire proceedings before him are without
jurisdiction. In view of these decisions the learned Judge made an order of which the relevant portion runs thus :
"So the proceeding is without jurisdiction. As the unreported decision of their Lordships was not available at the time of
framing of charge, charge was framed against the accused person and the case continued as usual. As the unreported
Page 241
decision of their Lordships has come to the notice of this Court, the accused persons against whom charge was framed
should be acquitted. As the accused persons are acquitted because the entire proceeding is without jurisdiction I am of
opinion that it is necessary (sic) to discuss the evidence on record and decide the merits of the case."
4. Thereafter a formal complaint was preferred by the Public Prosecutor on May 16, 1960 and Mr. Bhattacharjee who
had succeeded Mr. Ganguly as Judge of the Special Court, Birbhum took cognizance of the offence and commenced a
fresh proceeding against all the accused persons, including the appellant. He framed a charge under s. 409, I.P.C. against
the appellant and eventually convicted and sentenced him with respect to it, as already stated, and the appeal from the
conviction was dismissed by the High Court.
5. In order to appreciate the argument advanced before us by Mr. D. N. Mukherjee on behalf of the appellant it is
necessary to set out the provision of sub-s. (1) of s. 403 of the Code. They are as follows;
"A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of
such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same
offence, nor on the same facts for any other offence for which a different charge from the one made against him might
have been made under section 236 or for which he might have been convicted under section 237."
6. These provisions are based upon the general principle of auterfois acquit recognised by the English courts. The
principle on which the right to plead auterfois acquit depends is that a man may not be put twice in jeopardy for the
same offence. This principle has now been incorporated in Art. 20 of the Constitution. The defence of auterfois acquit,
however, has no application where the accused person was not liable lawfully to be convicted at the first trial because the
court lacked jurisdiction. This is what has been pointed out by the Court of Criminal Appeal in Thomas Ewart Flower v.
R. 40 Cr. App. R. 189. From the language used in s. 403(1) of the Code it is clear that what can be successfully pleaded
as a bar to a subsequent trial for the same offence or for an offence based on the same facts is that the accused had been
(a) tried by a court, (b) of competent jurisdiction and (c) acquitted of the offence alleged to have been committed by him
or an offence with which he might have been charged under s. 236 or for which he might have been convicted under s.
237, of the Code. Mr. Mukherjee, however, says that in so far as competency of the court is concerned it was there
because the offence in question was cognizable by a Special Court and Mr. Ganguly made the order of acquittal as Judge
of the Special Court. The competence of a court, however, depends not merely on the circumstance that under some law
it is entitled to try a case falling in the particular category in which the offence alleged against the accused falls. In
addition to this taking cognizance of the offence is also material in this regard. Under the Code of Criminal Procedure a
court can take cognizance of an offence only if the conditions requisite for initiation of proceedings before it as set out
in Part B of Chapter XV are fulfilled. If they are not fulfilled the court does not obtain jurisdiction to try the offence. In
the case before us Mr. Ganguly took the view, though erroneously, that as one of the conditions requisite for taking
cognizance of the offence was not satisfied he had no jurisdiction over the matter. Having come to that conclusion he
had no option but to put a stop to those proceedings. It appears, however, that he felt that having already framed a
charge the only manner in which he could put an end to the proceedings was by making an order of acquittal. It requires,
however, no argument to say that only a court which is competent to initiate proceedings or to carry them on can
properly make an order of acquittal, at any rate, an order of acquittal which will have the effect of barring a subsequent
trial upon the same facts and for the same offence. Mr. Mukherjee, however, raises two contentions on this aspect of the
matter. In the first place, according to him, the view taken by Mr. Ganguly that he could not have taken cognizance of
the offence was erroneous as has been pointed out by this Court in Ajit Kumar Palit v. State of West Bengal [1963] 1
S.C.R. 953] and, therefore, he could legally acquit the appellant. He further says that since Mr. Ganguly had not only
framed a charge against the appellant but also examined all the witnesses both for the prosecution and for the defence
and recorded the examination of the appellant he had completed the trial. In the second place, he says, that where a
charge has been framed against an accused person in a warrant case the proceedings before the court can end either in
acquittal or in conviction and in no other way. He points out that under s. 494 of the Code the Public Prosecutor may
with the consent of the court withdraw before a certain stage is reached, the prosecution of any person and that the only
order which the court is competent to make is to acquit the accused if the withdrawal is made after a charge has been
framed.
7. It is true that Mr. Ganguly could properly take cognizance of the offence and, therefore, the proceedings before him
were in fact not vitiated by reason of lack of jurisdiction. But we cannot close our eyes to the fact that Mr. Ganguly was
himself of the opinion - and indeed he had no option in the matter because he was bound by the decisions of the High
Court - that he could not take cognizance of the offence and consequently was incompetent to try the appellant. Where
Page 242
a court comes to such a conclusion, albeit erroneously, it is difficult to appreciate how that court can absolve the person
arraigned before it completely of the offence alleged against him. Where a person has done something which is made
punishable by law he is liable to face a trial and this liability cannot come to an end merely because the court before
which he was placed for trial forms an opinion that it has no jurisdiction to try him or that it has no jurisdiction to take
cognizance of the offence alleged against him. Where, therefore, a court says, though erroneously, that it was not
competent to take cognizance of the offence it has no power to acquit that person of the offence. An order of acquittal
made by it is in fact a nullity. In this connection we might profitably refer to the decision in Yusofally Mulla Noorbhoy
v. The King L.R. 76 IndAp 158. That was a case where there was no valid sanction as required by clause14 of the
Hoarding and Profiteering Prevention Ordinance, 1943 for the prosecution of the appellant therein on separate charges
of hoarding and profiteering. The sanction for the prosecution had been granted by the Controller General of Civil
Supplies who was authorised to give such sanction by virtue of a notification of the Government of India duly
published. Charges were framed by the Magistrate and thereafter further evidence was called for by the prosecution and
some of the witnesses were recalled for cross-examination. On the date of hearing, however, counsel for prosecution
made a statement to the following effect :
"In view of the High Court decision in Revisional Application No. 191 of 1945, as this court is not competent to try this
offence, he does not wish to tender the witnesses already examined for further cross-examination nor to lead any further
evidence."
8. Thereupon the Magistrate recorded an order in the following terms :
"Mr. Mullick's evidence is deleted. Accused acquitted for reasons to be recorded separately."
9. After referring to the statement of counsel for the prosecution and the order made on it the Magistrate continued :
"On a perusal of the said decision, however, I find that the filing of this charge sheet by the prosecution itself is invalid
in law, because the sanction is signed by the Controller-General under a Notification of the Government of India, and
the said Notification does not state that the various officers therein mentioned are not below the rank of a District
Magistrate. Thus it is the incompetence of the prosecution to proceed against the accused without sanction as provided
for in law. As, however, the invalidity of the sanction invalidates the prosecution in court, the accused was acquitted."
10. The Government filed an appeal against the order of acquittal. The High Court allowed it and set aside the orders of
the Magistrate acquitting the appellant and directed that the case should be tried by another Magistrate having
jurisdiction to try it and dealt with according to law. Against the decision of the High Court the appellant took an appeal
to the Privy Council. The Privy Council accepted the view of the Federal Court in Basdeo Agarwalla v. King Emperor
[1945] F.C.R. 93, that the prosecution launched without valid sanction is invalid and held that under the common law a
plea of auterfois acquit or convict can only be raised where the first trial was before a court competent to pass a valid
order of acquittal or conviction. Unless the earlier trail was a lawful one which might have resulted in a conviction, the
accused was never in jeopardy. The principle upon which the decision of the Privy Council is based must apply equally
to a case like the present in which the court which made the order of acquittal was itself of the opinion that it had no
jurisdiction to proceed with the case and therefore the accused was not in jeopardy.
11. As regards the second contention of Mr. Mukherjee it is necessary to point out that a criminal court is precluded
from determining the case before it in which a charge has been framed otherwise than by making an order of acquittal or
conviction only where the charge was framed by a court competent to frame it and by a court competent to try the case
and make a valid order of acquittal or conviction. No doubt, here the charge was framed by Mr. Ganguly but on his own
view he was not competent to take cognizance of the offence and, therefore, incompetent to frame a charge. For this
reason the mere fact that a charge had been framed in this case does not help the appellant. Similarly the provisions of s.
494 of the Code cannot be attracted to a case of this kind because that provision itself assumes the withdrawal by a
public prosecutor of a charge competently made and before a court competent to entertain the application for
withdrawal.
12. In addition to the competent of the court, s. 403 of the Code speaks of there having been a trial and the trial having
ended in an acquittal. From what we have said above, it will be clear that the fact that all the witnesses for the
prosecution as well as for the defence had been examined before Mr. Ganguly and the further fact that the appellant was
Page 243
also examined under s. 342 cannot in law be deemed to be a trial at all. It would be only repetition to say that for
proceedings to amount to a trial they must be held before a court which is in fact competent to hold them and which is
not of opinion that it has no jurisdiction to hold them. A fortiori it would also follow that the ultimate order made by it
by whatever name it is characterised cannot in law operate as an acquittal. In the Privy Council case it was interpreted by
Sir John Beaumont who delivered the opinion of the Board to be an order of discharge. It is unnecessary for us to say
whether such an order amounts to an order of discharge in the absence of any express provision governing the matter in
the Code or it does not amount to an order of discharge. It is sufficient to say that it does not amount to an order of
acquittal as contemplated by s. 403(1) and since the proceedings before the Special Judge ended with that order it would
be enough to look upon it merely as an order putting a stop to the proceedings. For these reasons we hold that the trial
and eventual conviction of the appellant by Mr. Bhattacharjee were valid in law and dismiss the appeal.
13. Appeal dismissed.

Page 244
MANU/PH/0327/1985
Equivalent Citation: 1986CriLJ1154, (1985)88PLR415
IN THE HIGH COURT OF PUNJAB AND HARYANA
Appellants: Banarsi Das and Ors.

Vs.
Respondent: Mohan Lal and Anr.
Hon'ble Judges:
M.M. Punchhi, J.
ORDER
M.M. Punchhi, J.
1. This is a petition for revision against the order of Shri R P. Singh Mahal, Judicial Magistrate Ist Class, Jalandhar
whereby he chose to proceed against the petitioners under Sections 250 and 344, Cr. P.C., as also under Section 193,
Penal Code.
2. At the outset, an objection has been raised by the learned Counsel for the respondents that the order sought to he
revised being interlocutory cannot be revised. As would be apparent from the discussion hereafter, neither is the order
interlocutory nor is it such an order which would not require interference by this Court, be it under Section 401 or 482,
Cr. P.C. The objection thus be taken to be overruled.
3. The undisputed facts are that on the basis of a first information report lodged by Banarsi Dass petitioner, three
persons i.e. Mohan Lal, Ashok Kumar and Smt Kailash Wati were sent up to stand trial under Sections 406/417/420
and 175, Penal Code. Shri N. S. Saini, Judicial Magistrate Ist Class, Jalandhar vide order dated 27-3-1982 acquitted the
accused. He adversely commented on the role of the four material witnesses who supported the prosecution. Those
were Raj Rani P. W. 1, Banarsi Dass P.W. 2, Sohan Lal P.W. 3 and Raj Pal P.W. 4. The learned Magistrate referring to
them observed in his order of acquittal as follows:
Consequently, the only inference possible on the basis of these facts is that all the four of them had joined in cooking up
a case against the accused relating to the said inducement or misrepresentation made to Raj Rani in the manner claimed
by them and hence they told blatant lies by which they have made themselves liable for proceedings under Sections 250
and 344 of Cr. P.C.
It seems that nothing was done to effectuate the observations of the learned Magistrate for quite some time. The
acquitted accused moved an application on 5-4-1983 before the successor Magistrate then in office requiring him to
proceed further in the matter. Notice was issued to the present petitioners who are two of the aforesaid witnesses being
Banarsi Dass and his wife Raj Rani, and possibly against others too. The petitioners raised an objection before the
learned Magistrate that he being successor to Shri N. S. Saini, who had made the observations afore-extracted, had no
jurisdiction in the matter. The learned' Magistrate took the view that as the successor Court, he had a right to put into
effect the order passed by his predecessor and had the jurisdiction in the matter. He further took the view that merely
because there was some gap of time, that did not absolve the petitioners from being prosecuted for the of fence as they
had made themselves liable to proceeding under Sections 250 and 344, Cr. P.C. He thus, vide the impugned order,
required the appearance of the persons sought to be proceeded against and issued them a show cause notice for the
purpose for the date fixed. This is the order which is the subject-matter of challenge in this petition.
4. At the start, Mr. Sibal, learned Counsel for the petitioners, abandoned the plea taken by the petitioners before the
learned Magistrate. The attack now centres around that the proceedings against the petitioners on the admitted facts are
Page 245
nothing but an abuse of the process of the Court requiring interference of this Court at this stage. The precise objection
is on the language of Section 344, Cr. P.C. which needs to be reproduced herein for facility of understanding as far as it
is relevant :
344. Summary procedure for trial for giving false evidence.-- (1) If, at the time of delivery of any judgment or final order
disposing of any judicial proceeding, a Court of Session or Magistrate of the first class expresses an opinion to the effect
that any witness appering in such proceeding had knowingly or wilfully given false evidence or had fabricated false
evidence with the intention that such evidence should be used in such proceeding, it or he may, if satisfied that it is
necessary and expedient in the interest of justice that the witness should be tried summarily for giving or fabricating, as
the case may be, false evidence, take cognizance of the offenceand may, after giving the offender a reasonable
opportunity of showing cause why he should not be punished for such offence, try such offender summarily and
sentence him to imprisonment for a term which may extend to three months, or to fine which may extend to five
hundred rupees, or with both.
2. In every such case the Court shall follow, as nearly as may be practicable, the procedure prescribed for summary trials.
(3) Nothing in this section shall affect the power of the Court to make a complaint under Section 340 for the offence,
where it does not choose to proceed under this section.
(Emphasis supplied.)
It was urged by Mr. Sibal that this section requires the Court or the Magistrate, as the case may be, to take cognizance of
the offence sought to be tried summarily and unless that manifestation is apparent on the face of the record, this section
has no applicability. He otherwise frankly conceded that if Section 344 did not come into play in the present case, then
the Court was not debarred from taking action under Section 340 of the said Code. Mr. Nanda, learned Counsel for the
respondents, too has candidly conceded that in the instant case, no cognizance seems to have been taken by the
Magistrate of the offence sought to be tried summarily. Both counsel, and in my view rightly, are one that no cognizance
of the offence has taken place. The afore-extracted part of the judgment of Shri Saini goes to show that he was at the
preparatory stage mainly concerned in the disposal of the case and not taking cognizance under Section 344, Cr. P.C. He
had even expressed clearly his opinion that the said four prosecution witnesses had told blatant lies, which expression
was wide enough to cover the wording of the section "knowingly or wilfully given false evidence". Though Mr. Saini has
not observed in so many words that he was satisfied that it was necessary and expedient in the interest of justice that
those four witnesses be tried summarily for giving false evidence yet it seems that by expressing that they had made
themselves liable for proceedings under Section 344, Cr. P.C., he had opined accordingly. But that apart, the language
employed by Shri Saini can by no means convey that he had taken cognizance of the offence. He never manifested in the
said judgment that he was proceeding to try the offenders for an offence under Section 193, Penal Code. He could have
on that very day, shortly after the judgment, initiated a separate file to signify thereon that he had taken steps indicative
of his having taken cognizance of the offence. The word "cognizance" has by now assumed a well defined legal meaning
which is to the effect that it occurs as soon as a competent Court applies its mind to the offence with the intention of
initiating judicial proceedings against the offenders in respect of the offence. Here no such step was taken, except
making the observations aforequoted in the judgment, which were preparatory in nature. From that alone it cannot be
said that the learned Magistrate had taken cognizance., Thus, on this ground alone, the steps taken by the successor
Magistrate to have the accused summoned before him under Section 344, Cr. P.C., read with Section 193, Penal Code,
cannot be allowed to sustain. Accordingly, that part of the proceeding is ordered to be dropped. On the alternative
suggested by Mr. Nanda, the application made by the respondents obviously can be treated to be one under Section 340
Cr. P.C. There is absolutely no bar to such a step. The Magistrate may regulate his proceedings thenceforth as a
preliminary inquiry, as conceived under Section 340 Cr. P.C and continue with the proceedings in accordance with law.
5. So far as the proceedings under Section 250 Cr. P.C are concerned, Mr. Sibal, learned Counsel for the petitioners,
could not advance any argument. That section empowers a Magistrate to award compensation to the accused for
accusation made by the complainant without reasonable cause. An appropriate procedure has been prescribed therein,
for the complainant is to be issued summons to appear and show cause as to why he should not pay compensation to
the accused or to each or any of such accused where there are more than one. The outer limits of the power of the
Magistrate as regards compensation is regulated by the offence for which the accused was tried and the fiscal jurisdiction
of the Magistrate which, in the instant case, he being a Judicial Magistrate Ist Class, Jalandhar, extends to Rs. 5,000/- as

Page 246
that is the amount of fine he is empowered to impose. These proceedings, as conceded by Mr. Sibal, can go on and
cannot be allowed to be quashed.
6. Thus, the aforesaid two separate strains of thought and expression have now to entwine inasmuch as the application
before the learned Magistrate shall continue rightly being treated to be one for invoking proceedings under S-250, Cr.
P.C., ant at the same time as proceedings under Section 340, Cr. KG; No steps towards summary trial under Section 344
Cr. P.C., be now undertaken.
7. With these observations, this petition stands partially allowed to the extent afore indicated. Parties through their
counsel are directed to put in appearance before the learned Magistrate on 24-9-1985.

Page 247
MANU/SC/1652/2019
Criminal Appeal No. 1794 of 2019 (Arising out of SLP (Crl.) No. 10189/2018)
Appellants: P. Gopalkrishnan
Vs.
Respondent: State of Kerala and Ors.
A.M. Khanwilkar and Dinesh Maheshwari, JJ.
JUDGMENT
A.M. Khanwilkar, J.
1. Leave granted.
2. The conundrum in this appeal is: whether the contents of a memory card/pen-drive being electronic record as
predicated in Section 2(1)(t) of the Information and Technology Act, 2000 (for short, 'the 2000 Act') would, thereby
qualify as a "document" within the meaning of Section 3 of the Indian Evidence Act, 1872 (for short, 'the 1872 Act) and
Section 29 of the Indian Penal Code, 1860 (for short, 'the 1860 Code')? If so, whether it is obligatory to furnish a cloned
copy of the contents of such memory card/pen-drive to the Accused facing prosecution for an alleged offence of rape
and related offences since the same is appended to the police report submitted to the Magistrate and the prosecution
proposes to rely upon it against the Accused, in terms of Section 207 of the Code of Criminal Procedure, 1973 (for
short, 'the 1973 Code')? The next question is: whether it is open to the Court to decline the request of the Accused to
furnish a cloned copy of the contents of the subject memory card/pen-drive in the form of video footage/clipping
concerning the alleged incident/occurrence of rape on the ground that it would impinge upon the privacy, dignity and
identity of the victim involved in the stated offence(s) and moreso because of the possibility of misuse of such cloned
copy by the Accused (which may attract other independent offences under the 2000 Act and the 1860 Code)?
3. The Appellant has been arrayed as Accused No. 8 in connection with offence registered as First Information Report
(FIR)/Crime Case No. 297/2017 dated 18.2.2017 punishable Under Sections 342, 366, 376, 506(1), 120B and 34 of the
1860 Code and Sections 66E and 67A of the 2000 Act, concerning the alleged incident/occurrence at around 2030 hrs.
to 2300 hrs. on 17.2.2017, as reported by the victim.
4. For considering the questions arising in this appeal, suffice it to observe that the investigating officer attached to the
Nedumbassery Police Station, Ernakulam, Kerala, after recording statements of the concerned witnesses and collecting
the relevant evidence, filed police reports Under Section 173 of the 1973 Code before the Judicial First Class Magistrate,
Angamaly. First police report, on 17.4.2017 and the second, on 22.11.2017. When the Appellant was supplied a copy of
the second police report on 15.12.2017, all documents noted in the said report, on which the prosecution proposed to
rely, were not supplied to the Appellant, namely, (i) electronic record (contents of memory card); (ii) Forensic Science
Laboratory (for short, 'the FSL') reports and the findings attached thereto in C.D./D.V.D.; (iii) medical reports;
C.C.T.V. footages and (iv) Call data records of Accused and various witnesses etc.
5. It is noted by the concerned Magistrate that the visuals copied and documented by the forensic experts during the
forensic examination of the memory card were allowed to be perused by the Appellant's counsel in the presence of the
regular cadre Assistant Public Prosecutor of the Court, in the Court itself. After watching the said visuals, some doubts
cropped up, which propelled the Appellant to file a formal application before the Judicial First Class Magistrate,
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Angamaly for a direction to the prosecution to furnish a cloned copy of the contents of memory card containing the
video and audio footage/clipping, in the same format as obtained in the memory card, alongwith the transcript of the
human voices, both male and female recorded in it. In the said application, the Appellant inter alia asserted as follows:
7. It may be noted that the electronic record in the form of copy of the alleged video footage of the offending act
committed by Accused No. 1 on the body and person of the defacto complainant is a crucial and material record relied
by the prosecution in this case. It is the definite contention of prosecution that the above electronic record is both the
evidence of commission of crime as well as the object of commission of crime and hence indisputably the most material
piece of evidence in this case. When the injustice, in not serving such a vital piece of evidence relied on by the
prosecution in the case, was immediately brought to the notice of this Hon'ble Court, without prejudice to the right of
Petitioner to obtain copies of the same, the defence side was allowed to watch the alleged video footages by playing the
contents of a pen drive in the lap top made available before this Hon'ble Court. Head phones were also provided to the
counsel and also to the learned APP who also was throughout present during this proceedings.
8. It is most respectfully submitted that by watching the video footage, although in a restricted environment and with
limited facilities in the presence of the Ld. APP and the Presiding Officer, it is shockingly realised that the visuals and
audio bytes contained in the video are of such a nature which would completely falsify the prosecution case in the form
presently alleged by the prosecution. As a matter of fact the video footage is not at all an evidence of commission of
crime as falsely contended by the prosecution but it is rather a clear case of fabricating false evidence with intent to foist
a false case. It is submitted that it is after deliberately concealing or withholding the alleged primary evidence viz. the
mobile phone stated to have been used by Accused No. 1, by the prosecution in active connivance with Accused No. 1,
that the prosecution has produced a memory card which evidently contains only selected audio and video recording.
9. xxx xxx xxx
10. ......The further Verification and close scrutiny of the images and audio with scientific aid will in all probability
provide more significant materials necessary to find out the truth behind the recorded images and the extent of
tampering and the same could only be unearthed if the mirror copy of the memory card is furnished to the Petitioner
which he is entitled to get without any further delay. As the prosecution is fully aware that the tampering could be
detected and further female voice could be retrieved by the defense, the prosecution is trying to prevent the supply of
the copy of the memory card in any form to the defense. It is illegal and the same will clearly amount to denial of a just
and fair trial.
11. xxx xxx xxx
12. A close scrutiny of the contents of mahazar dated 8.3.2017 would show that on 18.2.2017 Accused No. 1 had
entrusted a 8 GB memory card to Adv. E.G. Poulose, who had in turn produced the same before the Court of JFCM
Aluva. The investigating agency thereafter obtained custody of the above electronic record and later the 8 GB memory
card was sent to FSL, where, upon examination, Dr. Sunil S.P., Assistant director (documents), FSL,
Thiruvananthapuram has allegedly prepared a report in that regard. The copy of the report has not been furnished to the
Petitioner. The mahazar further shows that the contents of Memory card was transferred to a pen drive for the
investigation purpose. The above mahazar further categorically states that the pen drive contained the data transferred
from memory card and the same relates to the video footage of 17.2.2017 from 22:30:55 to 22:48:40 hrs and it is in order
to check and verify whether the voice contained therein belongs to Suni that the voice sample was allegedly taken. The
description in the mahazar proceeds as if there is only male voice in the video footage totally screening the fact that the
video footage contains many vital and material utterances in female voice. Those utterances were revealed to the
Petitioner and his counsel only on 15.12.2017. Everybody present had the benefit of hearing the said clear female voice.
As mentioned earlier the Ld. APP was also present. But the investigation agency which should have definitely seen and
heard the same has for obvious reason screened the said material aspects from the records. The investigation, it appears
did not venture to take steps to compare the female voice in the video footage with the voice of the female involved in
this case, for obvious reasons. On viewing and hearing, it is revealed that clear attempt have been made by somebody to
delete major portions from the video footage and from the audio recording.
13. It is respectfully submitted that utterances made by the parties involved and seen in the video footage determines the
nature of act recorded in the video footage and a transcript of the utterances and human voices in the video footage is

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highly just and necessary especially in view of the shocking revelation, found when the video footage was played on
15.12.2017.
14. Yet another aspect which is to be pointed out is the mysterious disappearance of the mobile phone allegedly used for
recording the video footage. The strong feeling of the Petitioner is that the investigating agency has not so far stated the
truth regarding the mobile phone allegedly used to shot the video footage. The prosecution records itself would strongly
indicate that the mobile phone used to record the occurrence (which now turns out to be a drama) was with the Police
or with the persons who are behind the fabrication of the video footage as evidence to launch the criminal prosecution
and false implication of the Petitioner. It is revolting to common sense to assume that even after conducting
investigation for nearly one year by a team headed by a very Senior Police officer like the Addl. DGP of the Stage,
during which Accused No. 1 was in the custody of the investigating team for 14 days at a stretch and thereafter for
different spells of time on different occasions the original mobile instrument used for recording the video footage could
not be unearthed. It appears that the investigating team was a willing agent to suffer the wrath of such a disgrace in order
to suppress the withholding of the mobile instrument.
15. It is interesting to note that even in the second final report dated 22.11.2017 the Police has stated that the
investigation to obtain the original mobile phone is even now continuing. It is nothing but an attempt to be fool
everybody including the Court.
16. It is most respectfully submitted that in view of the startling revelation in the video footage, the Petitioner intends to
make request to conduct proper, just and meaningful investigation into the matter so as to ensure that the real truth is
revealed and the real culprits in this case are brought to justice. For enabling the Petitioner to take steps in that regard. It
is highly just and essential that the cloned copy of the contents of memory card containing the video and audio content
in the same format as obtained in the Memory card and the transcript of the human voices recorded in it are produced
before Court and copy of the same furnished forthwith to the Petitioner.
17. As mentioned herein before, the prosecution has chosen to furnish only a small portion of the prosecution records
on 15.12.2017. The Petitioner is approaching this Hon'ble Court with a detailed petition stating the details of relevant
documents which do not form part of the records already produced before this Hon'ble Court and the details of the
other documents which are not furnished to Petitioner.
18. It is submitted that the Petitioner as an Accused is legally entitled to get the copies of all documents including the
CDs, Video footage etc., and the prosecution is bound to furnish the same to the Petitioner.
19. In the above premises it is respectfully prayed that this Hon'ble Court may be pleased to direct the prosecution to
furnish a cloned copy of the contents of Memory Card containing the video and audio content in the same format as
obtained in the memory card and the transcript of human voices, both male and female recorded in it, and furnish the
said cloned copy of the memory card and the transcript to the Petitioner.
6. The Magistrate vide order dated 7.2.2018, rejected the said application, essentially on the ground that acceding to the
request of the Appellant would be impinging upon the esteem, decency, chastity, dignity and reputation of the victim
and also against public interest. The relevant portion of the order dated 7.2.2018 reads thus:
Heard both sides in detail.
The Petitioner has also filed reply statement to the objection and counter statement filed by Special Public Prosecutor in
the case. The allegation against the Petitioner is that he engaged the first Accused to sexually assault the victim and
videograph the same. On receipt of summons the Petitioner entered appearance and was served with the copies of
prosecution records. The learned Senior Counsel appearing for the Petitioner requested for the copies of the contents of
memory card. The same could not be allowed & the investigation official has already a petition filed objecting the same,
with a prayer to permit them to view the same in the court. Hence they were permitted to view the video footage and
subsequent to the same they had filed this petition seeking a direction to the prosecution to furnish the copies of alleged
audio and video footage and its transcript. The prosecution strongly opposed the same stating that the same will add
insult to the victim who had suffered a lot at the hands of not only the Accused but also the media. Hence they
submitted that the Petitioner may be permitted to view the contents of the video during trial.
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Here the offence alleged tantamounts to a serious blow to the supreme honour of a woman. So as to uphold the esteem,
decency, chastity, dignity and reputation of the victim, and also in the public interest, I am declining the prayer. But so as
to ensure fairness in the proceedings and for just determination of the truth, the Petitioner is permitted to inspect the
contents of the video footage at the convenience of court.
7. Aggrieved by the above decision, the Appellant carried the matter to the High Court of Kerala at Ernakulam (for
short, 'the High Court') by way of Crl. M.C. No. 1663/2018. The learned single Judge of the High Court dismissed the
said petition and confirmed the order of the Magistrate rejecting the stated application filed by the Appellant. The High
Court, however, after analyzing the decisions and the relevant provisions cited before it, eventually concluded that the
seized memory card was only the medium on which the alleged incident was recorded and hence that itself is the
product of the crime. Further, it being a material object and not documentary evidence, is excluded from the purview of
Section 207 of the 1973 Code. The relevant discussion can be discerned from paragraph 41 onwards, which reads thus:
41. This leads to the crucial question that is to be answered in this case. Evidently, the crux of the prosecution allegation
is that, offence was committed for the purpose of recording it on a medium. Memory card is the medium on which it
was recorded. Hence, memory card seized by the police itself is the product of the crime. It is not the contents of the
memory card that is proposed to be established by the production of the memory card. The acts of sexual abuse is to be
established by the oral testimony of the victim and witnesses. It is also not the information derived from the memory
card that is sought to be established by the prosecution. Prosecution is trying to establish that the alleged sexual abuse
was committed and it was recorded. Though, in the course of evidence, contents of it may be sought to be established to
prove that, it was the memory card created by the Accused, contemporaneously recorded on the mobile, along with the
commission of offence, that does not by itself displace the status of the memory card as a document. Memory card itself
is the end product of the crime. It is hence a material object and not a documentary evidence. Hence, it stands out of the
ambit of Section 207 Code of Criminal Procedure.
42. The evaluation of the above legal propositions clearly spells out that, the memory card produced in this
case is not a document as contemplated Under Section 307 Indian Penal Code [sic 207 Code of Criminal
Procedure.]. In fact, it is in the nature of a material object. Hence, copy of it cannot be issued to the Petitioner
herein.
43. Prosecution has a case that, though Accused is entitled for his rights, it is not absolute and even outside Section 207
Code of Criminal Procedure, there can be restrictions regarding the right Under Section 207 Code of Criminal
Procedure It was contended that, if the above statutory provision infringes the right of privacy of the victim involved,
fundamental right will supersede the statutory right of the Accused. Definitely, in case of Justice K.S. Puttaswamy (Retd.)
and Anr. v. Union of India and Ors. MANU/SC/1044/2017 : (2017) 10 SCC 1 (at page 1), the Constitutional Bench of
the Supreme Court had held that the fundamental rights emanate from basic notions of liberty and dignity and the
enumeration of some facets of liberty as distinctly protected rights Under Article 19 does not denude Article 21 of its
expansive ambit. It was held that, validity of a law which infringes the fundamental rights has to be tested not with
reference to the object of state action, but on the basis of its effect on the guarantees of freedom. In Sherin v. John's
case (supra), this Court had held that, when there is a conflict between Fundamental Rights of a person and statutory
rights of another person, Fundamental Rights will prevail. The possibility of such contention may also arise. Since that
question does not arise in this case in the light of finding Under Section 207 Code of Criminal Procedure I do not
venture to enter into that issue.
44. Having considered the entire issue, I am inclined to sustain the order of the court below in Crl. M.P. No. 49 of 2018
in C.P. No. 16 of 2017 dismissing the application, though on different grounds. However, this will not preclude the
Court from permitting the Accused to watch the memory card only in Court, subject to restrictions, to prepare defence.
8. The Appellant being dissatisfied, has assailed the reasons which found favour with the trial Court, as well as the High
Court. The Appellant broadly contends that the prosecution case is founded on the forensic report which suggests that
eight video recordings were retrieved from the memory card and that the video files were found to be recorded on
17.2.2017 between 22:30:55 hrs. and 22:48:40 hrs. The same were transferred to the stated memory card on 18.2.2017
between 09:18 hrs. and 09:20 hrs. Be it noted that the original video recording was allegedly done by Accused No. 1 on
his personal mobile phone, which has not been produced by the investigating agency. However, the memory card on
which the offending video recording was copied on 18.2.2017 was allegedly handed over by an Advocate claiming that
the Accused No. 1 had given it to him. He had presented the memory card before the Court on 20.2.2017, which was
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sent for forensic examination at State FSL, Thiruvananthapuram. After forensic examination, the same was returned
alongwith FSL report DD No. 91/2017 dated 3.3.2017 and DD No. 115/2017 dated 7.4.2017. A pen-drive containing
the data/visuals retrieved from the memory card, was also enclosed with the report sent by the State FSL.
9. Be that as it may, the prosecution was obviously relying on the contents of the memory card which have been copied
on the pen-drive by the State FSL during the analysis thereof and has been so adverted to in the police report. The
contents of the memory card, which are replicated in the pen-drive created by the State FSL would be nothing but a
"document" within the meaning of the 1973 Code and the provisions of the 1872 Act. And since the prosecution was
relying on the same and proposes to use it against the Accused/Appellant, it was incumbent to furnish a cloned copy of
the contents thereof to the Accused/Appellant, not only in terms of Section 207 read with Section 173(5) of the 1973
Code, but also to uphold the right of the Accused to a fair trial guaranteed Under Article 21 of the Constitution of India.
The trial Court rejected the request of the Appellant on the ground that it would affect the privacy and dignity of the
victim, whereas, the High Court proceeded on the basis that the memory card is a material object and not a "document".
It is well known that a cloned copy is not a photocopy, but is a mirror image of the original, and the Accused has the
right to have the same to present his defence effectively. In the alternative, it is submitted, that the Court could have
imposed appropriate conditions while issuing direction to the prosecution to furnish a cloned copy of the contents of
memory card to the Accused/Appellant.
10. Per contra, the Respondent-State and the intervenor (the victim) have vehemently opposed the present appeal on the
argument that the Appellant before this Court is none other than the master-mind of the conspiracy. Although he was
not personally present on the spot, but the entire incident has occurred at his behest. It is urged that the appeal deserves
to be dismissed as the Appellant has disclosed the identity of the victim in the memo of the special leave petition from
which the present appeal has arisen. Further, the Appellant has falsely asserted that he had himself perused the contents
of the pen-drive and even for this reason, the appeal should be dismissed at the threshold. As a matter of fact, the
contents of the pen-drive were allowed to be viewed by the Appellant's counsel and the regular cadre Assistant Public
Prosecutor of the Court. The asservation of the Appellant that after viewing the contents of the pen-drive, he gathered
an impression that the contents of the memory card must have been tampered with, is the figment of imagination of the
Appellant and contrary to forensic report(s) by the State FSL. The definite case of the Respondent is that the memory
card seized in this case containing the visuals of sexual violence upon the victim is a material object and the pen-drive
into which the contents of memory card were documented through the process of copying by the State FSL and sent to
the Court for the purpose of aiding the trial Court to know the contents of the memory card and the contents of the said
pen-drive is both material object as well as "document". It is also urged that the visual contents of the pen-drive would
be physical evidence of the commission of crime and not "document" per se to be furnished to the Accused alongwith
the police report. The contents of the memory card or the pen-drive cannot be parted to the Accused and doing so itself
would be an independent offence. Moreover, if a cloned copy of the contents of the memory card is made available to
the Accused/Appellant, there is reason to believe that it would be misused by the Accused/Appellant to execute the
conspiracy of undermining the privacy and dignity of the victim. It is urged that the Appellant has relied on certain
decisions to contend that the contents of the memory card must be regarded as "electronic record" and, therefore, a
"document". The exposition in those decisions are general observations and would be of no avail to the Appellant. The
Appellant is facing prosecution for an offence of rape, and the trial thereof would be an in-camera trial before the
Special Court. To maintain the sanctity and for upholding the privacy, dignity and identity of the victim, it is urged that
the Accused/Appellant in such cases can seek limited relief before the trial Court to permit him and his lawyer or an
expert to view the contents of the pen-drive in Court or at best to permit him to take a second opinion of expert to
reassure himself in respect of the doubts entertained by him. Such indulgence would obviate the possibility of misuse of
the cloned copy of the video/audio footage/clipping and the same would be in the nature of a preventive measure while
giving a fair opportunity to the Accused to defend himself. The Respondent and the intervenor would urge that the
appeal be dismissed being devoid of merits.
11. As aforesaid, both sides have relied on reported decisions of this Court, as well as the High Courts and on the
provisions of the relevant enactments to buttress the submissions. We shall refer thereto as may be required.
12. We have heard Mr. Mukul Rohatgi, learned senior Counsel for the Appellant, Mr. Ranjit Kumar, learned senior
Counsel for the Respondent-State and Mr. R. Basant, learned senior Counsel for the intervenor.
13. The central issue is about the obligation of the investigating officer flowing from Section 173 of the 1973 Code and
that of the Magistrate while dealing with the police report Under Section 207 of the 1973 Code. Section 173 of the 1973
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Code ordains that the investigation under Chapter XII of the said Code should be completed without unnecessary delay
and as regards the investigation in relation to offences Under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA,
376DB or 376E of the 1860 Code, the same is required to be completed within two months from the date on which the
information was recorded by the officer in charge of the police station. The investigating officer after completing the
investigation, is obliged to forward a copy of the police report to a Magistrate empowered to take cognizance of the
offence on such police report. Alongwith the police report, the investigating officer is also duty bound to forward to the
Magistrate "all documents" or relevant extracts thereof, on which prosecution proposes to rely other than those sent to
the Magistrate during investigation. Similarly, the statements recorded Under Section 161 of all the persons whom the
prosecution proposes to examine as its witnesses, are required to be forwarded to the Magistrate alongwith the police
report. Indeed, it is open to the police officer, if in his opinion, any part of the "statement" is not relevant to the subject
matter of the proceedings or that its disclosure to the Accused is not essential in the interests of justice and is
inexpedient in public interest, to indicate that part of the "statement" and append a note requesting the Magistrate to
exclude that part from the copies to be granted to the Accused and stating his reasons for making such request. That
discretion, however, is not given to him in respect of the "documents" or the relevant extracts thereof on which the
prosecution proposes to rely against the Accused concerned. As regards the documents, Sub-section (7) enables the
investigating officer, if in his opinion it is convenient so to do, to furnish copies of all or any of the documents referred
to in Sub-section (5) to the Accused. Section 173, as amended and applicable to the case at hand, reads thus:
173. Report of police officer on completion of investigation.--(1) Every investigation under this Chapter shall be
completed without unnecessary delay.
(1A) The investigation in relation to an offence Under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB
or 376E of the Indian Penal Code (45 of 1860) shall be completed within two months from the date on which the
information was recorded by the officer in charge of the police station.
(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to
take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating--
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the Accused has been arrested;
(f) whether he has been released on his bond and, if so, whether with or without sureties;
(g) whether he has been forwarded in custody Under Section 170;
(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence
Under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or Section 376E of the Indian Penal Code (45 of
1860).
(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken
by him, to the person, if any, by whom the information relating to the commission of the offence was first given.
(3) Where a superior officer of police has been appointed Under Section 158, the report, shall, in any case in which the
State Government by general or special order so directs, be submitted through that officer, and he may, pending the
orders of the Magistrate, direct the officer in charge of the police station to make further investigation.

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(4) Whenever it appears from a report forwarded under this Section that the Accused has been released on his bond, the
Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
(5) When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the
Magistrate along with the report--
(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those
already sent to the Magistrate during investigation;
(b) the statements recorded Under Section 161 of all the persons whom the prosecution proposes to examine as
its witnesses.
(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of
the proceedings or that its disclosure to the Accused is not essential in the interests of justice and is
inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the
Magistrate to exclude that part from the copies to be granted to the Accused and stating his reasons for
making such request.
(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the Accused
copies of all or any of the documents referred to in Sub-section (5).
(8) Nothing in this Section shall be deemed to preclude further investigation in respect of an offence after a report under
reports regarding such evidence in the form prescribed; and the provisions of Sub-sections (2) to (6) shall, as far as may
14. Concededly, as regards the "documents" on which the prosecution proposes to rely, the investigating officer has no
option but to forward "all documents" to the Magistrate alongwith the police report. There is no provision (unlike in the
case of "statements") enabling the investigating officer to append a note requesting the Magistrate, to exclude any part
thereof ("document") from the copies to be granted to the Accused. Sub-section (7), however, gives limited discretion to
the investigating officer to forward copies of all or some of the documents, which he finds it convenient to be given to
the Accused. That does not permit him to withhold the remaining documents, on which the prosecution proposes to
rely against the Accused, from being submitted to the Magistrate alongwith the police report. On the other hand, the
expression used in Section 173(5)(a) of the 1973 Code makes it amply clear that the investigating officer is obliged to
forward "all" documents or relevant extracts on which the prosecution proposes to rely against the Accused concerned
alongwith the police report to the Magistrate.
15. On receipt of the police report and the accompanying statements and documents by virtue of Section 207 of the
1973 Code, the Magistrate is then obliged to furnish copies of each of the statements and documents to the Accused.
Section 207 reads thus:
207. Supply to the Accused of copy of police report and other documents.--In any case where the proceeding has
been instituted on a police report, the Magistrate shall without delay furnish to the Accused, free of cost, a copy of each
of the following:
(i) the police report;
(ii) the first information report recorded Under Section 154;
(iii) the statements recorded under Sub-section (3) of Section 161 of all persons whom the prosecution proposes to
examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by
the police officer under Sub-section (6) of Section 173;

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(iv) the confessions and statements, if any, recorded Under Section 164;
(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under Sub-section
(5) of Section 173:
Provided that the Magistrate may, after perusing any such part of a statement as is referred to in Clause (iii) and
considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of
such portion thereof as the Magistrate thinks proper, shall be furnished to the Accused:
Provided further that if the Magistrate is satisfied that any document referred to in Clause (v) is voluminous, he shall,
instead of furnishing the Accused with a copy thereof, direct that he will only be allowed to inspect it either personally or
through pleader in Court.
As regards the statements, the first proviso enables the Magistrate to withhold any part thereof referred to in Clause (iii),
from the Accused on being satisfied with the note and the reasons specified by the investigating officer as predicated in
Sub-section (6) of Section 173. However, when it comes to furnishing of documents submitted by the investigating
officer alongwith police report, the Magistrate can withhold only such document referred to in Clause (v), which in his
opinion, is "voluminous". In that case, the Accused can be permitted to take inspection of the concerned document
either personally or through his pleader in Court. In other words, Section 207 of the 1973 Code does not empower the
Magistrate to withhold any "document" submitted by the investigating officer alongwith the police report except when it
is voluminous. A fortiori, it necessarily follows that even if the investigating officer appends his note in respect of any
particular document, that will be of no avail as his power is limited to do so only in respect of 'statements' referred to in
Sub-section (6) of Section 173 of the 1973 Code.
16. Be that as it may, the Magistrate's duty Under Section 207 at this stage is in the nature of administrative work,
whereby he is required to ensure full compliance of the Section. We may usefully advert to the dictum in Hardeep
Singh v. State of Punjab MANU/SC/0025/2014 : (2014) 3 SCC 92 wherein it was held that:
47. Since after the filing of the charge-sheet, the court reaches the stage of inquiry and as soon as the court frames the
charges, the trial commences, and therefore, the power Under Section 319(1) Code of Criminal Procedure can be
exercised at any time after the charge-sheet is filed and before the pronouncement of judgment, except during the stage
of Sections 207/208 Code of Criminal Procedure, committal, etc. which is only a pre-trial stage, intended to put the
process into motion. This stage cannot be said to be a judicial step in the true sense for it only requires an application of
mind rather than a judicial application of mind. At this pre-trial stage, the Magistrate is required to perform acts in
the nature of administrative work rather than judicial such as ensuring compliance with Sections 207 and 208 Code of
Criminal Procedure, and committing the matter if it is exclusively triable by the Sessions Court ... ... ...
In yet another case of Tarun Tyagi v. CBI MANU/SC/0179/2017 : (2017) 4 SCC 490, this Court considered the
purport of Section 207 of the 1973 Code and observed as follows:
8. Section 207 puts an obligation on the prosecution to furnish to the Accused, free of cost, copies of the documents
mentioned therein, without any delay. It includes, documents or the relevant extracts thereof which are forwarded by the
police to the Magistrate with its report Under Section 173(5) of the Code. Such a compliance has to be made on the first
date when the Accused appears or is brought before the Magistrate at the commencement of the trial inasmuch as
Section 238 of the Code warrants the Magistrate to satisfy himself that provisions of Section 207 have been complied
with. Proviso to Section 207 states that if documents are voluminous, instead of furnishing the Accused with the copy
thereof, the Magistrate can allow the Accused to inspect it either personally or through pleader in the Court.
17. It is well established position that when statute is unambiguous, the Court must adopt plain and natural meaning
irrespective of the consequences as expounded in Nelson Motis v. Union of India MANU/SC/0387/1992 : (1992) 4
SCC 711. On a bare reading of Section 207 of the 1973 Code, no other interpretation is possible.
18. Be that as it may, furnishing of documents to the Accused Under Section 207 of the 1973 Code is a facet of right of
the Accused to a fair trial enshrined in Article 21 of the Constitution. In Sidhartha Vashisht @ Manu Sharma v. State
(NCT of Delhi) MANU/SC/0268/2010 : (2010) 6 SCC 1, this Court expounded thus:
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218. The liberty of an Accused cannot be interfered with except under due process of law. The expression "due process
of law" shall deem to include fairness in trial. The court (sic Code) gives a right to the Accused to receive all documents
and statements as well as to move an application for production of any record or witness in support of his case. This
constitutional mandate and statutory rights given to the Accused place an implied obligation upon the prosecution
(prosecution and the Prosecutor) to make fair disclosure. The concept of fair disclosure would take in its ambit
furnishing of a document which the prosecution relies upon whether filed in court or not. That document should
essentially be furnished to the Accused and even in the cases where during investigation a document is bona fide
obtained by the investigating agency and in the opinion of the Prosecutor is relevant and would help in arriving at the
truth, that document should also be disclosed to the Accused.
219. The role and obligation of the Prosecutor particularly in relation to disclosure cannot be equated under our law to
that prevalent under the English system as aforereferred to. But at the same time, the demand for a fair trial cannot be
ignored. It may be of different consequences where a document which has been obtained suspiciously, fraudulently or
by causing undue advantage to the Accused during investigation such document could be denied in the discretion of the
Prosecutor to the Accused whether the prosecution relies or not upon such documents, however in other cases the
obligation to disclose would be more certain. As already noticed the provisions of Section 207 have a material
bearing on this subject and make an interesting reading. This provision not only require or mandate that the
court without delay and free of cost should furnish to the Accused copies of the police report, first information
report, statements, confessional statements of the persons recorded Under Section 161 whom the prosecution
wishes to examine as witnesses, of course, excluding any part of a statement or document as contemplated
Under Section 173(6) of the Code, any other document or relevant extract thereof which has been submitted to
the Magistrate by the police under Sub-section (5) of Section 173. In contradistinction to the provisions of
Section 173, where the legislature has used the expression "documents on which the prosecution relies" are
not used Under Section 207 of the Code. Therefore, the provisions of Section 207 of the Code will have to be
given liberal and relevant meaning so as to achieve its object. Not only this, the documents submitted to the
Magistrate along with the report Under Section 173(5) would deem to include the documents which have to be
sent to the Magistrate during the course of investigation as per the requirement of Section 170(2) of the Code.
220. The right of the Accused with regard to disclosure of documents is a limited right but is codified and is the very
foundation of a fair investigation and trial. On such matters, the Accused cannot claim an indefeasible legal right to
claim every document of the police file or even the portions which are permitted to be excluded from the documents
annexed to the report Under Section 173(2) as per orders of the court. But certain rights of the Accused flow both from
the codified law as well as from equitable concepts of the constitutional jurisdiction, as substantial variation to such
procedure would frustrate the very basis of a fair trial. To claim documents within the purview of scope of Sections 207,
243 read with the provisions of Section 173 in its entirety and power of the court Under Section 91 of the Code to
summon documents signifies and provides precepts which will govern the right of the Accused to claim copies of the
statement and documents which the prosecution has collected during investigation and upon which they rely.
221. It will be difficult for the Court to say that the Accused has no right to claim copies of the documents or request
the Court for production of a document which is part of the general diary subject to satisfying the basic ingredients of
law stated therein. A document which has been obtained bona fide and has bearing on the case of the prosecution and in
the opinion of the Public Prosecutor, the same should be disclosed to the Accused in the interest of justice and fair
investigation and trial should be furnished to the Accused. Then that document should be disclosed to the Accused
giving him chance of fair defence, particularly when non-production or disclosure of such a document would affect
administration of criminal justice and the defence of the Accused prejudicially.
19. Similarly, in V.K. Sasikala v. State MANU/SC/0792/2012 : (2012) 9 SCC 771, this Court held as under:
21. The issue that has emerged before us is, therefore, somewhat larger than what has been projected by the State and
what has been dealt with by the High Court. The question arising would no longer be one of compliance or non-
compliance with the provisions of Section 207 Code of Criminal Procedure and would travel beyond the
confines of the strict language of the provisions of Code of Criminal Procedure and touch upon the larger
doctrine of a free and fair trial that has been painstakingly built up by the courts on a purposive interpretation
of Article 21 of the Constitution. It is not the stage of making of the request; the efflux of time that has occurred or
the prior conduct of the Accused that is material. What is of significance is if in a given situation the Accused comes to
the court contending that some papers forwarded to the court by the investigating agency have not been exhibited by the
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prosecution as the same favours the Accused the court must concede a right to the Accused to have an access to the said
documents, if so claimed. This, according to us, is the core issue in the case which must be answered affirmatively. In
this regard, we would like to be specific in saying that we find it difficult to agree with the view taken by the High Court
that the Accused must be made to await the conclusion of the trial to test the plea of prejudice that he may have raised.
Such a plea must be answered at the earliest and certainly before the conclusion of the trial, even though it may be raised
by the Accused belatedly. This is how the scales of justice in our criminal jurisprudence have to be balanced.
20. The next seminal question is: whether the contents of the memory card/pen-drive submitted to the Court alongwith
the police report can be treated as "document" as such. Indubitably, if the contents of the memory card/pen-drive are
not to be treated as "document", the question of furnishing the same to the Accused by virtue of Section 207 read with
Section 173 of the 1973 Code would not arise. We say so because it is nobody's case before us that the contents of the
memory card/pen-drive be treated as a "statement" ascribable to Section 173(5)(b) of the 1973 Code. Notably, the
command Under Section 207 is to furnish "statements" or "documents", as the case may be, to the Accused as
submitted by the investigating officer alongwith the police report, where the prosecution proposes to rely upon the same
against the Accused.
21. The High Court adverted to certain judgments before concluding that the memory card would be a material object.
For arriving at the said conclusion, the High Court relied on the decision of the King's Bench of United Kingdom in
The King v. Daye [1908] 2 K.B. 333, wherein Darling J., adding to the majority opinion, had held thus:
...But I should myself say that any written thing capable of being evidence is properly described as a document
and that it is immaterial on what the writing may be inscribed. It might be inscribed on paper, as is the
common case now; but the common case once was that it was not on paper, but on parchment; and long
before that it was on stone, marble, or clay, and it might be, and often was, on metal. So I should desire to guard
myself against being supposed to assent to the argument that a thing is not a document unless it be a paper writing. I
should say it is a document no matter upon what material it be, provided it is writing or printing and capable of being
evidence.
The High Court also relied on the decision of the Chancery Court in Grant and Anr. v. Southwester and County
Properties Ltd. and Anr. [1975] Ch. 185, wherein it was observed as follows:
There are a number of cases in which the meaning of the word "document" has been discussed in varying circumstances.
Before briefly referring to such cases, it will, I think, be convenient to bear in mind that the derivation of the word is
from the Latin "documentum": it is something which instructs or provides information. Indeed, according to Bullokar's
English Expositor (1621), it meant a lesson. The Shorter Oxford English Dictionary has as the fourth meaning for the
word the following: "Something written, inscribed, etc., which furnishes evidence or information upon any subject, as a
manuscript, title-deed, coin, etc.," and it produces as the relevant quotation: "These frescoes... have become invaluable as
documents," the writer being Mrs. Anna Brownell Jameson who lived from 1794 to 1860.
I think that all the authorities to which I am about to refer have consistently stressed the furnishing of information-
impliedly otherwise than as to the document itself-as being one of the main functions of a document. Indeed, in In Re
Alderton and Barry's Application (1941) 59 R.P.C. 56, Morton J. expressly doubted whether blank workmen's time
sheets could be classified as documents within Section 11(1)(b) of the Patent and Design Acts 1907-1939 expressly
because in their original state they conveyed no information of any kind to anybody...
It can be safely deduced from the aforementioned expositions that the basis of classifying Article as a "document"
depends upon the information which is inscribed and not on where it is inscribed. It may be useful to advert to the
exposition of this Court holding that tape records of speeches1 and audio/video cassettes2 including compact disc3 were
"documents" Under Section 3 of the 1872 Act, which stand on no different footing than photographs and are held
admissible in evidence. It is by now well established that the electronic record produced for the inspection of the Court
is documentary evidence Under Section 3 of the 1872 Act4.
22. It is apposite to recall the exposition of this Court in State of Maharashtra v. Dr. Praful B. Desai
MANU/SC/0268/2003 : (2003) 4 SCC 601, wherein this Court observed that the Code of Criminal Procedure is an
ongoing statute. In case of an ongoing statute, it is presumed that the Parliament intended the Court to apply a
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construction that continuously updates its wordings to allow for changes and is compatible with the contemporary
situation. In paragraph 14 of the said decision, the Court observed thus:
14. It must also be remembered that the Code of Criminal Procedure is an ongoing statute. The principles of
interpreting an ongoing statute have been very succinctly set out by the leading jurist Francis Bennion in his
commentaries titled Statutory Interpretation, 2nd Edn., p. 617:
It is presumed Parliament intends the court to apply to an ongoing Act a construction that continuously updates its
wordings to allow for changes since the Act was initially framed. While it remains law, it has to be treated as always
speaking. This means that in its application on any day, the language of the Act though necessarily embedded in its own
time, is nevertheless to be construed in accordance with the need to treat it as a current law.
***
In construing an ongoing Act, the interpreter is to presume that Parliament intended the Act to be applied at any future
time in such a way as to give effect to the original intention. Accordingly, the interpreter is to make allowances for any
relevant changes that have occurred since the Act's passing, in law, in social conditions, technology, the meaning of
words and other matters.... That today's construction involves the supposition that Parliament was catering long ago for
a state of affairs that did not then exist is no argument against that construction. Parliament, in the wording of an
enactment, is expected to anticipate temporal developments. The drafter will foresee the future and allow for it in the
wording.
***
An enactment of former days is thus to be read today, in the light of dynamic processing received over the years, with
such modification of the current meaning of its language as will now give effect to the original legislative intention. The
reality and effect of dynamic processing provides the gradual adjustment. It is constituted by judicial
interpretation, year in and year out. It also comprises processing by executive officials.
23. As aforesaid, the Respondents and intervenor would contend that the memory card is a material object and not a
"document" as such. If the prosecution was to rely only on recovery of memory card and not upon its contents, there
would be no difficulty in acceding to the argument of the Respondent/intervenor that the memory card/pen-drive is a
material object. In this regard, we may refer to Phipson on Evidence5, and particularly, the following paragraph(s):
The purpose for which it is produced determines whether a document is to be regarded as documentary
evidence. When adduced to prove its physical condition, for example, an alteration, presence of a signature,
bloodstain or fingerprint, it is real evidence. So too, if its relevance lies in the simple fact that it exists or did
once exist or its disposition or nature. In all these cases the content of the document, if relevant at all, is only
indirectly relevant, for example to establish that the document in question is a lease. When the relevance of a
document depends on the meaning of its contents, it is considered documentary evidence.
... ... ...
Again at page 5 of the same book, the definition of "real evidence 6" is given as under:
Material objects other than documents, produced for inspection of the court, are commonly called real evidence. This,
when available, is probably the most satisfactory kind of all, since, save for identification or explanation, neither
testimony nor inference is relied upon. Unless its genuineness is in dispute [See Belt v. Lawes, The Times, 17 November
1882.], the thing speaks for itself.
Unfortunately, however, the term "real evidence" is itself both indefinite and ambiguous, having been used in three
divergent senses:
(1) ... ... ...

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(2) Material objects produced for the inspection of the court. This is the second and most widely accepted meaning of "real
evidence". It must be borne in mind that there is a distinction between a document used as a record of a transaction,
such as a conveyance, and a document as a thing. It depends on the circumstances in which classification it falls. On a
charge of stealing a document, for example, the document is a thing.
(3) ... ... ...
A priori, we must hold that the video footage/clipping contained in such memory card/pen-drive being an electronic
record as envisaged by Section 2(1)(t) of the 2000 Act, is a "document" and cannot be regarded as a material object.
Section 2(1)(t) of the 2000 Act reads thus:
2(1)(t) "electronic record" means data, record or data generated, image or sound stored, received or sent in an electronic
form or micro film or computer-generated micro fiche;
24. As the above definition refers to data or data generated, image or sound stored, received or sent in an electronic
form, it would be apposite to advert to the definition of "data" as predicated in Section 2(1)(o) of the same Act. It reads
thus:
2(1)(o) "data" means a representation of information, knowledge, facts, concepts or instructions which are being
prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been
processed in a computer system or computer network, and may be in any form (including computer printouts magnetic
or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer;
On conjoint reading of the relevant provisions, it would be amply clear that an electronic record is not confined to
"data" alone, but it also means the record or data generated, received or sent in electronic form. The expression "data"
includes a representation of information, knowledge and facts, which is either intended to be processed, is being
processed or has been processed in a computer system or computer network or stored internally in the memory of the
computer.
25. Having noticed the above definitions, we may now turn to definitions of expressions "document" and "evidence" in
Section 3 of the 1872 Act being the interpretation clause. The same reads thus:
3. Interpretation clause.-
Document.- "Document" means any matter expressed or described upon any substance by means of letters, figures or
marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording
that matter.
Illustrations
A writing is a document;
Words printed, lithographed or photographed are documents;
A map or plan is a document;
An inscription on a metal plate or stone is a document;
A caricature is a document.
Evidence.- "Evidence" means and includes--

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(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact
under inquiry, such statements are called oral evidence;
(2) all documents including electronic records produced for the inspection of the Court, such documents are called
documentary evidence.
On a bare reading of the definition of "evidence", it clearly takes within its fold documentary evidence to mean and
include all documents including electronic records produced for the inspection of the Court. Although, we need not
dilate on the question of admissibility of the contents of the memory card/pen-drive, the same will have to be answered
on the basis of Section 65B of the 1872 Act. The same reads thus:
65B. Admissibility of electronic records.-(1) Notwithstanding anything contained in this Act, any information
contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media
produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the
conditions mentioned in this Section are satisfied in relation to the information and computer in question and shall be
admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the
original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in Sub-section (1) in respect of a computer output shall be the following, namely:
(a) the computer output containing the information was produced by the computer during the period over which the
computer was used regularly to store or process information for the purposes of any activities regularly carried on over
that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the
information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any
period in which it was not operating properly or was out of operation during that part of the period, was not such as to
affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the
computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly
carried on over that period as mentioned in Clause (a) of Sub-section (2) was regularly performed by computers,
whether--
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more
computers and one or more combinations of computers, all the computers used for that purpose during that period shall
be treated for the purposes of this Section as constituting a single computer; and references in this Section to a computer
shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any
of the following things, that is to say,--
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

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(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for
the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in Sub-section (2) relate, and purporting to be
signed by a person occupying a responsible official position in relation to the operation of the relevant device or the
management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate;
and for the purposes of this Sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and
belief of the person stating it.
(5) For the purposes of this section,--
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether
it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or
processed for the purposes of those activities by a computer operated otherwise than in the course of those activities,
that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or
(with or without human intervention) by means of any appropriate equipment.
Explanation.--For the purposes of this Section any reference to information being derived from other information shall
be a reference to its being derived therefrom by calculation, comparison or any other process.
This provision is reiteration of the legal position that any information contained in an electronic record which is printed
on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a
"document" and shall be admissible in evidence subject to satisfying other requirements of the said provision.
26. It may be useful to also advert to Section 95(2)(b) of the 1973 Code, which refers to "document" to include any
painting, drawing or photograph, or other visible representation. And again, the expression "document" has been
defined in Section 29 of the 1860 Code, which reads thus:
29. "Document".--The word "document" denotes any matter expressed or described upon any substance by means of
letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, as evidence of
that matter.
Explanation 1.--It is immaterial by what means or upon what substance the letters, figures or marks are formed, or
whether the evidence is intended for, or may be used in, a Court of Justice, or not.
Illustrations
A writing expressing the terms of a contract, which may be used as evidence of the contract, is a document.
A cheque upon a banker is a document.
A power-of-attorney is a document.
A map or plan which is intended to be used or which may be used as evidence, is a document.
A writing containing directions or instructions is a document.

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Explanation 2.--Whatever is expressed by means of letters, figures or marks as explained by mercantile or other usage,
shall be deemed to be expressed by such letters, figures or marks within the meaning of this section, although the same
may not be actually expressed.
Illustration
A writes his name on the back of a bill of exchange payable to his order. The meaning of the endorsement, as explained
by mercantile usage, is that the bill is to be paid to the holder. The endorsement is a document, and must be construed in
the same manner as if the words "pay to the holder" or words to that effect had been written over the signature.
27. Additionally, it may be apposite to also advert to the definition of "communication devices" given in Section 2(1)(ha)
of the 2000 Act. The said provision reads thus:
2(1)(ha) "communication device" means cell phones, personal digital assistance or combination of both or any other
device used to communicate, send or transmit any text, video, audio or image.
28. We may also advert to the definition of "information" as provided in Section 2(1)(v) of the 2000 Act. The same reads
thus:
2(1)(v) "information" includes data, message, text, images sound, voice, codes, computer programmes, software and data
bases or micro film or computer generated micro fiche.
29. Even the definition of "document" given in the General Clauses Act would reinforce the position that electronic
records ought to be treated as "document". The definition of "document" in Section 3(18) of the General Clauses Act
reads thus:
3(18) "document" shall include any matter written, expressed or described upon any substance by means of letters,
figures or marks, or by more than one of those means which is intended to be used, or which may be used, for the
purpose of recording that matter.
30. It may be apposite to refer to the exposition in Halsbury's laws of England7 dealing with Chapter - "Documentary
and Real Evidence" containing the meaning of documentary evidence and the relevancy and admissibility thereof
including about the audio and video recordings. The relevant exposition reads thus:
(12) DOCUMENTARY AND REAL EVIDENCE
1462. Meaning of documentary evidence. The term 'document' bears different meanings in different contexts.
At common law, it has been held that any written thing capable of being evidence is properly described as a
document8, and this clearly includes printed text, diagrams, maps and plans 9. Photographs are also regarded
as documents at common law10.
Varying definitions have been adopted in legislation11. A document may be relied on as real evidence (where its
existence, identity or appearance, rather than its content, is in issue 12), or as documentary evidence.
Documentary evidence denotes reliance on a document as proof of its terms or contents 13. The question of the
authenticity of a document is to be decided by the jury14.
1463. The primary evidence rule. Under the 'primary evidence rule' at common law15, it was once thought necessary
for the contents of any private document to be proved by production of the original document 16. A copy of an original
document, or oral evidence as to the contents of that document, was considered admissible only in specified
circumstances, namely: (1) where another party to the proceedings failed to comply with a notice to produce the original
which was in his possession (or where the need to produce it was so clear that no such notice was required) 17; (2) where
production of the original was shown to be impossible 18; (3) where the original appeared to have been lost or
destroyed19; and (4) where a third party in possession of the original lawfully declined to produce it20....

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xxx xxx xxx
1466. Real evidence. Material objects or things (other than the contents of documents) which are produced as
exhibits for inspection by a court or jury are classed as real evidence 21. The court or jury may need to hear oral testimony
explaining the background and alleged significance of any such exhibit, and may be assisted by expert evidence in
drawing inferences or conclusions from the condition of that exhibit 22.
Where a jury wishes to take an exhibit, such as a weapon, into the jury room, this is something which the judge has a
discretion to permit23. Jurors must not however conduct unsupervised experiments24, or be allowed to inspect a thing
which has not been produced in evidence25.
Failure to produce an object which might otherwise have been admissible as real evidence does not preclude the
admission of oral evidence concerning the existence or condition of that object, although such evidence may carry far
less weight26.
xxx xxx xxx
1471. Audio and video recordings. An audio recording is admissible in evidence provided that the accuracy of the
recording can be proved, the recorded voices can be properly identified, and the evidence is relevant and otherwise
admissible27. However, that evidence should always be regarded with caution and assessed in the light of all the
circumstances28.
A video recording of an incident which is in issue is admissible 29. There is no difference in terms of admissibility
between a direct view of an incident and a view of it on a visual display unit of a camera or on a recording of
what the camera has filmed. A witness who sees an incident on a display or a recording may give evidence of
what he saw in the same way as a witness who had a direct view 30.
31. In order to examine the purport of the term "matter" as found in Section 3 of the 1872 Act, Section 29 of the 1860
Code and Section 3(18) of the General Clauses Act, and to ascertain whether the contents of the memory card can be
regarded as "document", we deem it appropriate to refer to two Reports of the Law Commission of India. In the 42 nd
Law Commission Report31, the Commission opined on the amendments to the 1860 Code. Dealing with Section 29 of
the 1860 Code, the Commission opined as under:
2.56. The main idea in all the three Acts is the same and the emphasis is on the "matter" which is recorded, and not on
the substance on which the matter is recorded. We feel, on the whole, that the Penal Code should contain a definition of
"document" for its own purpose, and that Section 29 should be retained.
The said observation is restated in the 156th Report 32, wherein the Commission opined thus:
11.08 Therefore, the term 'document' as defined in Section 29, Indian Penal Code may be enlarged so as to specifically
include therein any disc, tape, sound track or other device on or in which any matter is recorded or stored by
mechanical, electronic or other means ... ... ... The aforesaid proposed amendment in Section 29 would also necessitate
consequential amendment of the term "document" Under Section 3 of the Indian Evidence Act, 1872 on the lines
indicated above.
Considering the aforementioned Reports, it can be concluded that the contents of the memory card would be a "matter"
and the memory card itself would be a "substance" and hence, the contents of the memory card would be a "document".
32. It is crystal clear that all documents including "electronic record" produced for the inspection of the Court alongwith
the police report and which prosecution proposes to use against the Accused must be furnished to the Accused as per
the mandate of Section 207 of the 1973 Code. The concomitant is that the contents of the memory card/pen-drive must
be furnished to the Accused, which can be done in the form of cloned copy of the memory card/pen-drive. It is cardinal
that a person tried for such a serious offence should be furnished with all the material and evidence in advance, on
which the prosecution proposes to rely against him during the trial. Any other view would not only impinge upon the
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statutory mandate contained in the 1973 Code, but also the right of an Accused to a fair trial enshrined in Article 21 of
the Constitution of India.
33. We do not wish to dilate further nor should we be understood to have examined the question of relevancy of the
contents of the memory card/pen-drive or for that matter the proof and admissibility thereof. The only question that we
have examined in this appeal is: whether the contents of the memory card/pen-drive referred to in the chargesheet or
the police report submitted to Magistrate Under Section 173 of the 1973 Code, need to be furnished to the Accused if
the prosecution intends to rely on the same by virtue of Section 207 of the 1973 Code?
34. Reverting to the preliminary objection taken by the Respondent for dismissing the appeal at the threshold because of
the disclosure of identity of the victim in the memo of the special leave petition forming the subject matter of the
present appeal, we find that the explanation offered by the Appellant is plausible inasmuch as the prosecution itself had
done so by naming the victim in the First Information Report/Crime Case, the statement of the victim Under Section
161, as well as Under Section 164 of the 1973 Code, and in the chargesheet/police report filed before the Magistrate.
Even the objection regarding incorrect factual narration about the Appellant having himself viewed the contents of the
memory card/pen-drive does not take the matter any further, once we recognize the right of the Accused to get the
cloned copies of the contents of the memory card/pen-drive as being mandated by Section 207 of the 1973 Code and
more so, because of the right of the Accused to a fair trial enshrined in Article 21 of the Constitution of India.
35. The next crucial question is: whether parting of the cloned copy of the contents of the memory card/pen-drive and
handing it over to the Accused may be safe or is likely to be misused by the Accused or any other person with or
without the permission of the Accused concerned? In the present case, there are eight named Accused as of now. Once
relief is granted to the Appellant who is Accused No. 8, the other Accused would follow the same suit. In that event, the
cloned copies of the contents of the memory card/pen-drive would be freely available to all the Accused.
36. Considering the principles laid down by this Court in Tarun Tyagi (supra), we are of the opinion that certain
conditions need to be imposed in the fact situation of the present case. However, the safeguards/conditions suggested
by the Appellant such as to take help of experts, to impose watermarks on the respective cloned copies etc., may not be
sufficient measure to completely Rule out the possibility of misuse thereof. In that, with the advancement of technology,
it may be possible to breach even the security seals incorporated in the concerned cloned copy. Besides, it will be well-
nigh impossible to keep track of the misuse of the cloned copy and its safe and secured custody.
37. Resultantly, instead of allowing the prayer sought by the Appellant in toto, it may be desirable to mould the relief by
permitting the Appellant to seek second expert opinion from an independent agency such as the Central Forensic
Science Laboratory (CFSL), on all matters which the Appellant may be advised. In that, the Appellant can formulate
queries with the help of an expert of his choice, for being posed to the stated agency. That shall be confidential and not
allowed to be accessed by any other agency or person not associated with the CFSL. Similarly, the forensic report
prepared by the CFSL, after analyzing the cloned copy of the subject memory card/pen-drive, shall be kept confidential
and shall not be allowed to be accessed by any other agency or person except the concerned Accused or his authorized
representative until the conclusion of the trial. We are inclined to say so because the State FSL has already submitted its
forensic report in relation to the same memory card at the instance of the investigating agency.
38. Needless to mention that the Appellant before us or the other Accused cannot and are not claiming any expertise,
much less, capability of undertaking forensic analysis of the cloned copy of the contents of the memory card/pen-drive.
They may have to eventually depend on some expert agency. In our opinion, the Accused, who are interested in
reassuring themselves about the genuineness and credibility of the contents of the memory card in question or that of
the pen-drive produced before the trial Court by the prosecution on which the prosecution would rely during the trial,
are free to take opinion of an independent expert agency, such as the CFSL on such matters as they may be advised,
which information can be used by them to confront the prosecution witnesses including the forensic report of the State
FSL relied upon by the prosecution forming part of the police report.
39. Considering that this is a peculiar case of intra-conflict of fundamental rights flowing from Article 21, that is right to
a fair trial of the Accused and right to privacy of the victim, it is imperative to adopt an approach which would balance
both the rights. This principle has been enunciated in the case of Asha Ranjan v. State of Bihar
MANU/SC/0159/2017 : (2017) 4 SCC 397 wherein this Court held thus:

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57. The aforesaid decision is an authority for the proposition that there can be a conflict between two individuals qua
their right Under Article 21 of the Constitution and in such a situation, to weigh the balance the test that is required to
be applied is the test of larger public interest and further that would, in certain circumstances, advance public morality of
the day. To put it differently, the "greater community interest" or "interest of the collective or social order"
would be the principle to recognise and accept the right of one which has to be protected.
xxx xxx xxx
61. Be it stated, circumstances may emerge that may necessitate for balancing between intra-fundamental rights. It has
been distinctly understood that the test that has to be applied while balancing the two fundamental rights or inter
fundamental rights, the principles applied may be different than the principle to be applied in intra-conflict between the
same fundamental right ... ... ... Thus, there can be two individuals both having legitimacy to claim or assert the right.
The factum of legitimacy is a primary consideration. It has to be remembered that no fundamental right is absolute and
it can have limitations in certain circumstances
... ... ... Therefore, if the collective interest or the public interest that serves the public cause and further has the
legitimacy to claim or assert a fundamental right, then only it can put forth that their right should be protected. There
can be no denial of the fact that the rights of the victims for a fair trial is an inseparable aspect of Article 21 of the
Constitution and when they assert that right by themselves as well as the part of the collective, the conception of public
interest gets galvanised. The accentuated public interest in such circumstances has to be given primacy, for it furthers
and promotes "Rule of Law". It may be clarified at once that the test of primacy which is based on legitimacy and the
public interest has to be adjudged on the facts of each case and cannot be stated in abstract terms. It will require studied
scanning of facts, the competing interests and the ultimate perception of the balancing that would subserve the larger
public interest and serve the majesty of Rule of law. ... ... ...
xxx xxx xxx
86.1. The right to fair trial is not singularly absolute, as is perceived, from the perspective of the Accused. It
takes in its ambit and sweep the right of the victim(s) and the society at large. These factors would collectively
allude and constitute the Rule of Law i.e. free and fair trial.
86.2. The fair trial which is constitutionally protected as a substantial right Under Article 21 and also the statutory
protection, does invite for consideration a sense of conflict with the interest of the victim(s) or the collective/interest of
the society. When there is an intra-conflict in respect of the same fundamental right from the true perceptions,
it is the obligation of the constitutional courts to weigh the balance in certain circumstances, the interest of the
society as a whole, when it would promote and instil Rule of Law. A fair trial is not what the Accused wants in the
name of fair trial. Fair trial must soothe the ultimate justice which is sought individually, but is subservient and would
not prevail when fair trial requires transfer of the criminal proceedings.
40. This Court in Mazdoor Kisan Shakti Sangathan v. Union of India MANU/SC/0762/2018 : (2018) 17 SCC 324
has restated the legal position in the following terms:
61. Undoubtedly, right of people to hold peaceful protests and demonstrations, etc. is a fundamental right guaranteed
Under Articles 19(1)(a) and 19(1)(b) of the Constitution. The question is as to whether disturbances, etc. caused by it to
the residents, as mentioned in detail by the NGT, is a larger public interest which outweighs the rights of protestors to
hold demonstrations at Jantar Mantar Road and, therefore, amounts to reasonable restriction in curbing such
demonstrations. Here, we agree with the detailed reasoning given by the NGT that holding of demonstrations in the way
it has been happening is causing serious discomfort and harassment to the residents. At the same time, it is also to be
kept in mind that for quite some time Jantar Mantar has been chosen as a place for holding demonstrations and was
earmarked by the authorities as well. Going by the dicta in Asha Ranjan [Asha Ranjan v. State of Bihar,
MANU/SC/0159/2017 : (2017) 4 SCC 397 : (2017) 2 SCC (Cri.) 376], principle of primacy cannot be given to one
right whereby the right of the other gets totally extinguished. Total extinction is not balancing. Balancing
would mean curtailing one right of one class to some extent so that the right of the other class is also
protected.
Page 265
41. We are conscious of the fact that Section 207 of the 1973 Code permits withholding of document(s) by the
Magistrate only if it is voluminous and for no other reason. If it is an "electronic record", certainly the ground predicated
in the second proviso in Section 207, of being voluminous, ordinarily, cannot be invoked and will be unavailable. We are
also conscious of the dictum in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v.
Satyen Bhowmick and Ors. MANU/SC/0263/1981 : (1981) 2 SCC 109, wherein this Court has restated the cardinal
principle that Accused is entitled to have copies of the statements and documents accompanying the police report,
which the prosecution may use against him during the trial.
42. Nevertheless, the Court cannot be oblivious to the nature of offence and the principle underlying the amendment to
Section 327 of the 1973 Code, in particular Sub-section (2) thereof and insertion of Section 228A of the 1860 Code, for
securing the privacy of the victim and her identity. Thus understood, the Court is obliged to evolve a mechanism to
enable the Accused to reassure himself about the genuineness and credibility of the contents of the memory card/pen-
drive from an independent agency referred to above, so as to effectively defend himself during the trial. Thus, balancing
the rights of both parties is imperative, as has been held in Asha Ranjan (supra) and Mazdoor Kisan Shakti
Sangathan (supra). The Court is duty bound to issue suitable directions. Even the High Court, in exercise of inherent
power Under Section 482 of the 1973 Code, is competent to issue suitable directions to meet the ends of justice.
43. If the Accused or his lawyer himself, additionally, intends to inspect the contents of the memory card/pen-drive in
question, he can request the Magistrate to provide him inspection in Court, if necessary, even for more than once
alongwith his lawyer and I.T. expert to enable him to effectively defend himself during the trial. If such an application is
filed, the Magistrate must consider the same appropriately and exercise judicious discretion with objectivity while
ensuring that it is not an attempt by the Accused to protract the trial. While allowing the Accused and his lawyer or
authorized I.T. expert, all care must be taken that they do not carry any devices much less electronic devices, including
mobile phone which may have the capability of copying or transferring the electronic record thereof or mutating the
contents of the memory card/pen-drive in any manner. Such multipronged approach may subserve the ends of justice
and also effectuate the right of Accused to a fair trial guaranteed Under Article 21 of the Constitution.
44. In conclusion, we hold that the contents of the memory card/pen drive being electronic record must be regarded as
a document. If the prosecution is relying on the same, ordinarily, the Accused must be given a cloned copy thereof to
enable him/her to present an effective defence during the trial. However, in cases involving issues such as of privacy of
the complainant/witness or his/her identity, the Court may be justified in providing only inspection thereof to the
Accused and his/her lawyer or expert for presenting effective defence during the trial. The court may issue suitable
directions to balance the interests of both sides.
45. In view of the above, this appeal partly succeeds. The impugned judgment and order passed by the trial Court and
the High Court respectively stand modified by giving option to the Appellant/Accused to the extent indicated hitherto,
in particular paragraphs 37, 38 and 43.
46. Resultantly, the application filed by the Appellant before the trial Court being Crl. M.P. No. 49/2018 in C.P. No.
16/2017 is partly allowed in the aforementioned terms.
47. We direct the trial Court to ensure that the trial in C.P. No. 16/2017 is concluded expeditiously, preferably within six
months from the date of this judgment.
1Tukaram S. Dighole v. Manikrao Shivaji Kokate, MANU/SC/0086/2010 : (2010) 4 SCC 329

2Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra and Ors., MANU/SC/0277/1975 : (1976) 2 SCC 17
3Shamsher Singh Verma v. State of Haryana, MANU/SC/1345/2015 : (2016) 15 SCC 485
4Anwar P.V. v. P.K. Basheer, MANU/SC/0834/2014 : (2014) 10 SCC 473
5Hodge M. Malek, Phipson on Evidence, 19th Edn., 2018, pg. 1450
6Hodge M. Malek, Phipson on Evidence, 19th Edn., 2018, pg. 5
7Fourth Edition, 2006 reissue, Vol. 11(3) Criminal Law, Evidence and Procedure
8R v. Daye [1908] 2 KB 333 at 340, DC, per Darling J.
9A tombstone bearing an inscription is in this sense a document (see Mortimer v. M'Callan (1840) 6 M & W 58), as is a

Page 266
coffin-plate bearing an inscription (see R. v. Edge (1842) Wills, Circumstantial Evidence (6th Edn.) 309).
10See also Lyell v. Kennedy (No. 3) (1884) 27 ChD 1, 50 LT 730, Senior v. Holdsworth, ex p. Independent Television
News Ltd. [1976] QB 23, [1975] 2 All ER 1009, Victor Chandler International Ltd. v. Customs and Excise Comrs.
MANU/UKCH/0030/1999 : [2000] 1 All ER 160, [1999] 1 WLR 2160, ChD.
11For the purposes of the Police and Criminal Evidence Act 1984, 'document' means anything in which information of
any description is recorded: Section 118 (amended by the Civil Evidence Act 1995 Section 15(1), Sch 1 para 9(3)). For
the purposes of the Criminal Justice Act 2003 Pt. 11 (Sections 98-141) (as amended) (evidence), the definition is the
same (see Section 134(1)), save that for the purposes of Pt. 11 Ch. 3 (Sections 137-141) (which includes the provision
relating to refreshing memory (see Section 139; and para 1438 ante)) it excludes any recording of sounds or moving
images (see Section 140).
12See e.g. R. v. Elworthy (1867) LR 1 CCR 103, 32 JP 54, CCR; Boyle v. Wiseman (1855) 11 Exch. 360. Documents
produced by purely mechanical means may constitute real evidence even where reliance is placed on the content: The
Statute of Liberty, Sapporo Maru (Owners) v. Statue of Liberty (Owners) [1968] 2 All ER 195, [1968] 1 WLR 739 (film
of radar echoes); R. v. Wood (1982) 76 Cr. App. Rep. 23, CA (computer used as calculator); Castel v. Cross [1985] 1 All
ER 87, [1984] 1 WLR 1372, DC (printout of evidential breath-testing device). See also Garner v. DPP (1989) Crim. LR
583, DC; R. v. Skinner [2005] EWCA Crim. 1439, [2006] Crim. LR 56, [2005] ALL ER (D) 324 (May). As to real
evidence generally see para 1466 post.
13R. v. Elworthy (1867) LR 1 CCR 103, 32 JP 54, CCR.
14R. v. Wayte (1982) 76 Cr. App. Rep. 110 at 118, CA. The admissibility of a document is, following the general rule, a
question for the judge: See para 1360 ante. A document which the law requires to be stamped, but which is unstamped,
is admissible in criminal proceedings: Stamp Act 1891 Section 14(4) (amended by the Finance Act 1999 Section 109(3),
Sch 12 para 3(1), (5)).
15As to the related 'best evidence rule' see para 1367 ante.
16As to the admissibility of examined or certified copies of public documents at common law see EVIDENCE vol. 17(1)
(Reissue) para 821 et. seq.

17A-G v. Le Merchant (1788) 2 2 Term Rep 201n; R. v. Hunter (1829) 4 C & P 128; R. v. Elworthy (1867) LR 1 CCR
103, 32 JP 54, CCR.

18Owner v. Be Hive Spinning Co. Ltd. [1914] 1 KB 105, 12 LGR 421; Alivon v. Furnival (1834) 1 Cr. M. & Rule 277.
19R. v. Haworth (1830) 4 C & P 254
20R. v. Nowaz MANU/UKCR/0020/1976 : (1976) 63 Cr. App. Rep 178, CA. A further possibility was that contents of a
document might be proved by an admission or confession: Slatterie v. Pooley (1840) 6 M & W 664
21This include animals, such as dogs, which may be inspected to see if they are ferocious (Line v. Taylor (1862) 3 F & F
731) or whether they appear to have been ill-treated, etc. Note however that statements (such as statements of origin)
printed on objects may give rise to issues of hearsay if it is sought to rely on them as true: Comptroller of Customs v.
Western Lectric Co. Ltd. MANU/UKPC/0006/1965 : [1966] AC 367, [1965] 3 All ER 599, PC.
22Expert evidence may often be essential if the court or jury is to draw any kind of informed conclusions from their
examination of the exhibit. It would be dangerous, for example, for a court or jury to draw its own unaided conclusions
concerning the identity of fingerprints or the age and origin of bloodstains: Anderson v. R. MANU/SCCN/0050/1970 :
[1972] AC 100, [1971] 3 All ER 768, PC.
23R. v. Wright [1993] Crim. LR 607, CA; R. v. Devichand [1991] Crim. LR 446, CA.
24R. v. Maggs (1990) 91 Cr. App. Rep 243, CA, per Lord Lane CJ at 247; R. v. Crees [1996] Crim. LR 830, CA; R. v.
Stewart MANU/SCCN/0092/1988 : (1989) 89 Cr. App. Rep. 273, [1989] Crim. LR 653, CA.
25R. v. Lawrence [1968] 1 All ER 579, 52 CR. App. Rep. 163, CCA.
26R. v. Francis (1874) LR 2 CCR 128, 43 LJMC 97, CCR; Hocking v. Ahlquist Bros. [1944] KB 120, [1943] 1 All ER 722,
DC. See also R. v. Uxbridge Justices, ex. P. Sofaer (1987) 85 Cr. App. Rep. 367, DC. If the object in question is in the
possession of the prosecutor or of a third person, its production may generally be compelled by issue of a witness order
under the Criminal Procedure (Attendance of Witnesses) Act, 1965 Section 2 (as substituted and amended) or under the
Magistrates' Court Act, 1980 Section 97 (as substituted and amended) (see para 1409 ante). The Defendant cannot,
however, be served with such an order, lest he be forced to incriminate himself: Trust Houses Ltd. v. Postlethwaite
(1944) 109 JP 12.
27R. v. Maqsud Ali, R v. Ashiq Hussain MANU/UKCR/0026/1965 : [1966] 1 QB 688, 49 Cr. App. Rep 230, CCA. For
the considerations relevant to the determination of admissibility see R. v. Stevenson, R. v. Hulse, R. v. Whitney [1971] 1
All ER 678, 55 Cr. App. Rep 171; R. v. Robson, R. v. Harris [1972] 2 All ER 699, 56 Cr. App. Rep 450. See also R. v.
Senat, R. v. Sin (1968) 52 Cr. App. Rep 282, CA; R. v. Bailey MANU/UKCR/0034/1993 : [1993] 3 All ER 513, 97 Cr.
App. Rep 365, CA. Where a video recording of an incident becomes available after the witness has made a statement, the
witness may view the video and, if necessary, amend his statement so long as the procedure adopted is fair and the
witness does not rehearse his evidence: R. v. Roberts (Michael), R. v. Roberts (Jason) [1998] Crim. LR 682, 162 JP 691,
Page 267
CA.
28R. v. Maqsud Ali, R. v. Ashiq Hussain MANU/UKCR/0026/1965 : [1966] 1 QB 688, 49 Cr. App. Rep 230, CCA. As
to the use of tape recordings and transcripts see R. v. Rampling [1987] Crim. LR 823, CA; and see also Buteria v. DPP
(1986) 76 ALR 45, Aust. HC. As to the tape recording of police interviews see para 971 et seq ante; and as to the
exclusion of a tape recording under the Police and Criminal Evidence Act, 1984 Section 78 (as amended) (see para 1365
ante) as unfair evidence see R. v. H [1987] Crim. LR 47, Cf R. v. Jelen, R. v. Karz (1989) 90 Cr. App. Rep 456, CA (tape
recording admitted despite element of entrapment).
29Taylor v. Chief Constable of Cheshire MANU/UKWQ/0046/1986 : [1987] 1 All ER 225, 84 Cr. App. Rep 191, DC.
30Taylor v. Chief Constable of Cheshire MANU/UKWQ/0046/1986 : [1987] 1 All ER 225, 84 Cr. App. Rep 191, DC.
As to the admissibility of video recordings as evidence identifying the Defendant see also R. v. Fowden and White [1982]
Crim. LR 588, CA; R. v. Grimer [1982] Crim. LR 674, CA; R. v. Blenkinsop [1995] 1 Cr. App. Rep 7, CA. A recording
showing a road on which an incident had occurred was admitted in R. v. Thomas [1986] Crim. LR 682. As to the
identification of the Defendant by still photographs taken by an automatic security camera see R. v. Dodson, R. v.
Williams [1984] 1 WLR 971, 79 Cr. App. Rep 220, CA; as to identification generally see para 1455 ante; and as to the
admissibility of a copy of a video recording of an incident see Kajala v. Noble (1982) 75 Cr. App. Rep 149, CA.
31Forty-Second Report, Law Commission India, Indian Penal Code, June, 1971, 32-35
32One Hundred Fifty-Sixth Report on the Indian Penal Code (Volume I), August, 1997, Law Commission of India,
Chapter-XI

Page 268
MANU/SC/0172/1976
Equivalent Citation: AIR1976SC366, (1976)4SCC572, (1976)SCC(Cri)689, [1977]2SCR52
Appellants: Balchand Jain

Vs.
Hon'ble Judges:
A. C. Gupta, P. N. Bhagwati and S. Murtaza Fazal Ali, JJ.
JUDGMENT
P.N. Bhagwati and A.C. Gupta, JJ.
1. The facts giving rise to this appeal are set out in the judgment about to be delivered by our learned brother S. Murtaza
Fazl Ali and it is, therefore, not necessary to reiterate them. The question which arises for determination on these facts is
a short one and it is: whether an order of 'anticipatory bail' can be competently made by a Court of Session or a High
Court under Section 438 of the CrPC, 1973 in case of offences falling under Rule 184 of the Defence and Internal
Security of India Rules, 1971 made under the Defence and Internal Security of India Act, 1971 (hereinafter referred as
the Act).
2. There was at one time conflict of decisions amongst different, High Courts in India about the power of a court to
grant 'anticipatory bail'. The majority view was that there was no such power in the court under the old Criminal
Procedure Code. The Law Commission, in its Forty First Report pointed out:
The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their
rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some
days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart
from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to
abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to
custody remain in prison for some days and then apply for bail.,
and recommended introduction ' of a provision for grant of 'anticipatory bail.' This recommendation was accepted by
the Central Government and Clause (447) was introduced in the draft Bill of the new CrPC conferring express power on
a Court of Session or a High Court to grant 'anticipatory bail.' Commenting on this provision in the draft Bill, the Law
Commission observed in paragraph 31 of its Forty-Eighth Report:
The Bill introduces a provision for the grant of anticipatory bail. This is substantially in (accordance with the
recommendations made by the previous Commission (41st Report). We agree that this would be a useful addition,
though we must add that it is in very exceptional cases that such a power should be exercised.
We are further of the view that in order to ensure that the provision is not put to abuse at the instance of unscrupulous
petitioners, the final order should be made only after notice to the public prosecutor. The initial order should only be an
interim one. Further the relevant section should make it clear that the direction can be issued only for reasons to be
recorded, and if the Court is satisfied that such a direction is necessary in the interests of justice.
(Clause 447) became Section 438 when the Bill was enacted into the new CrPC. That section is in the following terms:

Page 269
(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable
offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may,
if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
(2) x x x x
We do not find in this section the words 'anticipatory bail', but that is clearly the subject with which the section deals. In
fact 'anticipatory bail' is a misnomer. It is not as if bail is presently granted by the Court in anticipation of arrest. When
the Court grants 'anticipatory bail', what it does is to make an order that in the event of arrest, a person shall be released
on bail. Manifestly there is no question of release on bail unless a person is arrested and, therefore, it is only on arrest
that the order granting 'anticipatory bail' becomes operative. Now, this power of granting 'anticipatory bail' is somewhat
extraordinary in character and it is only in exceptional cases where it appears that a person might be falsely implicated, or
a frivolous case might be launched against him, or "there are reasonable grounds for holding that a person accused of an
offence is not likely to abscond or otherwise misuse his liberty while on bail" that such power is to be exercised. And
this power being rather of an unusual nature it is entrusted only to the higher echelons of judicial service, namely, a
Court of Session and the High Court. It is a power exercisable in case of an anticipated accusation of non-bailable
offence and there is no limitation as to the category of non-bailable offence in respect of which the power can be
exercised by the appropriate court.
3. Having examined the historical background and context of Section 438 of the new CrPC and the language in which it
is couched, let us turn to Rule 184 of the Defence and Internal Security of India Rules, 1971. That is the Rule with which
we are concerned in this appeal and it runs as follows:
Notwithstanding anything contained in the CrPC. 1898 (V of 1898), no person accused or convicted of a contravention
of these Rules or orders made thereunder shall, if in custody, be released on bail or his own bond unless-
(a) the prosecution has been given an opportunity to oppose the application for such release and
(b) where the prosecution opposes the application and the contravention is of any such provision of these Rules or
orders made thereunder as the Central Government or the State Government may by notified order specify in this
behalf, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention.
This Rule commences on a non obstante clause and in its operative part imposes a ban on release on bail of a person
accused or convicted of a contravention of the Rules or orders made thereunder, if in custody, unless two conditions are
satisfied. The first contention is that the prosecution must be given an opportunity to oppose the application for such
release and the second condition is that when the contravention is of any such provision of the Rules or orders made
thereunder as the Central Government or the State Govt. may by notified order specify in this behalf, the Court must be
satisfied that there are reasonable grounds for believing that he is not guilty of such contravention. If either of these two
conditions is not satisfied, the ban operates and the person concerned cannot be released on bail. The Rule, on its plain
terms, does not confer any power on the Court to release a person accused or convicted of contravention of any Rule or
order made under the Rules, on bail. It postulates the existence of power in the Court under the CrPC and seeks to place
a curb on its exercise by providing that a person accused or convicted of contravention of any Rule or order made under
the Rules, if in custody, shall not be released on bail unless the aforesaid two conditions are satisfied. It imposed fetters
on the exercise of the power of' granting bail in certain kinds of cases and removes such fetters on fulfilment of the
aforesaid two conditions. When these two conditions are satisfied, the fetters are removed and the power of granting bail
possessed by the Court under the CrPC revives and becomes exercisable. The non obstante clause at the
commencement of the Rule also emphasises that the provision in the Rule is intended to restrict the power of granting
bail under the CrPC and not to confer a new power exercisable only on certain conditions. It is not possible to read Rule
184 as laying down a self-contained code for grant of bail in case of a person accused or convicted of contravention of
any Rule or order made under the Rules so that the power to grant bail in such case must be found only in Rule 184 and
not in the CrPC. Rule 184 cannot be construed as displacing altogether the provisions of the CrPC in regard to bail in
case of a person accused or convicted of contravention of any Rule or order made under the Rules. These provisions of
the CrPC must be read along with Rule 184 and full effect must be given to them except in so far as they are, by reason
of the non obstante clause overridden by Rule 184.

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4. We must, therefore, proceed to consider whether on a true and harmonious construction, Section 438 of the CrPC,
which provides for grant of 'anticipatory bail' can stand side by side with Rule 184 or there is any inconsistency between
them so that to the extent of inconsistency, it must be regarded as overridden by that rule. Now Section 438
contemplates an application to be made by a person who apprehends that he may be arrested on an accusation of having
committed a non-bailable offence. It is an application on an apprehension of arrest that invites the exercise of the power
under Section 438. And on such an application, the direction that may be given under Section 438 is that in the event of
his arrest, the applicant shall be released on bail. Rule 184 on the other hand, deals with a different situation and operates
at a subsequent stage when a person is accused or convicted of contravention of any Rule or order made under the Rules
and is in custody. It is only the release of such a person on bail that is conditionally prohibited by Rule 184. If a person is
not in custody but is merely under an apprehension of arrest and he applies for grant of 'anticipatory bail' under Section
438, his case would clearly be outside the mischief of Rule 184, because when the Court makes, an order for grant of
'anticipatory bail', it would not be directing release of a person who is in custody. It is an application for release of a
person in custody that is contemplated by Rule 184 and not an application for grant of 'anticipatory bail' by a person
apprehending arrest. Section 438 and Rule 184 thus operate at different stages, one prior to arrest and the other, after
arrest and there is no overlapping between these two provisions so as to give rise to a conflict between them. And
consequently, it must follow as a necessary corollary that Rule 184 does not stand in the way of a Court of Session or a
High Court granting 'anticipatory bail' under Section 438 to a person apprehending arrest on an accusation of having
committed contravention of any Rule or order made under the Rules.
5. But even if Rule 184 does not apply in such a case, the policy behind this Rule would have to be borne in mind by the
Court while exercising its power to grant 'anticipatory bail' under Section 438. The rule-making authority obviously
thought offences arising out of contravention of Rules and orders made thereunder were serious offences as they might
imperil the defence of India or civil defence or internal security or public safety or maintenance of public order or
hamper maintenance of supplies and services to the life of the community and hence it provided in Rule 184 that no
person accused or convicted of contravention of any Rule or order made under the Rules, shall be released on bail unless
the prosecution is given an opportunity to oppose the application for such release and in case the contravention is of a
Rule or order specified in this behalf in a notified order, there are reasonable grounds for believing that the person
concerned is not guilty of such contravention. If these are the conditions provided by the rule-making authority for
releasing on bail a person arrested on an accusation of, having committed contravention of any Rule or order made
under the Rules, it must follow a fortiori that the same conditions must provide the guidelines while exercising the
power to grant 'anticipatory bail' to a person apprehending arrest on such accusation, though they would not be strictly
applicable. When a person apprehending arrest on an accusation of having committed contravention of any Rule or
Order made under the Rules applies to the Court for a direction under Section 438, the Court should not ordinarily
grant him 'anticipatory bail' under that section unless a notice has been issued to the prosecution giving it an opportunity
to oppose the application and in case the contravention is of a Rule or order specially notified in this behalf, the Court is
satisfied that there are reasonable grounds for believing that he is not guilty of such contravention. These would be
reasonably effective safeguards against improper exercise of power of granting 'anticipatory bail' which might in
conceivable cases turn out detrimental against public interest. When we say this, we must, of course, make it clear that
we do not intend to lay down that in no case should an ex parte order of 'anticipatory bail' be made by the Court. There
may be facts and circumstances in a given case which may justify the making of an ex parte interim order of 'anticipatory
bail' but in such an event, a short dated notice should be issued and the final order should be passed only after giving an
opportunity to the prosecution to be heard in opposition.
6. Here in the present case, the High Court took the view, following its earlier decisions in Criminal Revn. No. 285 of
1974 MANU/MP/0066/1975 (State v. Shantilal) and Criminal Revn. No. 286 of 1974 (Madh Pra) (State v. Manoharlal),
that the Court of Session had no jurisdiction to grant 'anticipatory bail' by reason of Rule 184 and on this view, did not
consider the application of the appellant for 'anticipatory bail' on merits. Since we are taking the view that the power
conferred on a Court of Session or a High Court under Section 438 to grant 'anticipatory bail' is not taken away by Rule
184 in case of persons apprehending arrest on an accusation of having committed contravention of any Rule or order
made under the Rules, we must set aside the order of the High Court and send the matter back to the High Court for
deciding the appellant's application for 'anticipatory bail' on merits.
7. We accordingly allow the appeal, set aside the order made by the High Court and remand the case to the High Court
with a direction that the application of the appellant for 'anticipatory bail' should be decided on merits after hearing the
parties in the light of the observations made in this judgment. The parties are directed to appear before the High Court
on 22 November 1976 so as to enable the High Court to take up the application for hearing. The appellant is already on

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bail and we direct that until his application for 'anticipatory bail' is disposed of by the High Court, he will continue on
bail.
S. Murtaza Fazl Ali, J.
8. This is an appeal by special leave against the order of the Madhya Pradesh High Court dated 30-9-1975 dismissing the
application of the petitioner in limine. In fact the High Court of Madhya Pradesh, following an earlier decision of that
Court given in Criminal Revn. No. 285 of 1974 : MANU/MP/0066/1975 and No. 286 of 1974, D/- 15-4-1975 held that
as the matter was fully covered by those two authorities, the petition merited summary rejection. There-after the
petitioner filed an application for special leave which having been granted, the appeal has now been placed before us.
9. The circumstances under which the appeal arises may be detailed as follows:
The petitioner was a businessman of Nowgong Cantonment carrying on the retail business of Kirana merchandise and
other things for a large number of years and had been maintaining proper accounts regarding the sale of kerosene-oil
and other articles. On 23-7-1975 a Magistrate along with the Food Inspector and a number of police officers visited the
shop of the petitioner and took possession of his account books and started verifying their correctness. The same party
made a second visit to the shop of the petitioner on July 25, 1975 and took away Bahi-Khatas and Rokar kept in the
shop of the petitioner. After preparing a seizure memo, a copy of the same was given to one Nathuram a relation of the
petitioner, the petitioner being absent on that day. Having regard to these facts, the petitioner who had a genuine
apprehension that he might be arrested, for contravention of the provisions of the Defence of India Act and the Rules
made thereunder which admittedly was a non-bailable offence approached the Sessions Judge for passing an order for
anticipatory bail under the provisions of Section 438 of the CrPC, 1973. This application having been rejected by the
Sessions Judge, the petitioner moved the High Court and that too unsuccessfully. Hence this appeal by special leave.
10. We are not at all concerned in this appeal regarding the merits of the case because the High Court has not gone into
merits but has rejected the application on the ground that it was not maintainable as held by the Division Bench decision
of the Madhya Pradesh High Court. Thus the only point which arises for consideration before us is:
Whether the provisions of Section 438 of the CrPC relating to anticipatory bail stand overruled and repealed by virtue of
Rule 184 of the Defence and Internal Security of India Rules, 1971, or on the rule of harmonious interpretation of
statutes. Rule 184 of the Defence and Internal Security of India Rules, 1971 is not in any way inconsistent with Section
438 of the CrPC, 1973, and both the provisions can exist side by side.
The Madhya Pradesh High Court has taken the view that the Defence and Internal Security of India Act, 1971 -
hereinafter referred to as 'the Act' and the Defence and Internal Security of India Rules, 1971 - hereinafter referred to as
'the Rules' made thereunder being a sort of emergency legislation are special law which repeals and overrides the
provisions of the CrPC, 1973 - hereinafter referred to as 'the Code'-in so far as they are inconsistent with the provisions
of the Rules. In other words, the High Court thought that in view of the express provisions of Rule 184(a) and (b) of the
Rules, no question of anticipatory bail arose and therefore. Section 438 of the Code stood superseded insofar as offences
under Rule 184(a) and (b) were concerned.
11. Mr. V.M. Tarkunde learned Counsel for the appellant has contended that the view taken by the Madhya Pradesh
High Court is legally erroneous and is based on a wrong interpretation of the two provisions in question. He submitted
that Section 438 of the Code and Rule 184 of the Rules cannot be read in isolation but in conjunction with the
conditions laid down in Rule 184 Clauses (a) and (b) of the Rules and once this is done there would be no real
inconsistency between the two provisions and the question of one repealing the other would not arise. Mr. Ram
Panjwani learned Counsel for the respondent, however, supported the stand taken by the High Court of Madhya
Pradesh and argued that having regard to the scheme of the Act and the Rules made thereunder, this was a summary
legislation with a completely exhaustive and self-contained Code and there was absolutely no justification for applying
the provisions of the CrPC which was the general law.
12. In order to appreciate the contentions raised by counsel for the parties it may be necessary for us to examine the
object and scheme of the Code as also of the Act and the Rules made thereunder particularly with respect to the
impugned provisions. So far as the Act is concerned, this Act was passed by Act XLII of 1971 on December 4, 1971 at a

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time when the proclamation of emergency had already been issued by the President under Clause (1) of Article 352 of
the Constitution. The preamble to the Act reads thus:
And whereas it is necessary to provide for special measures to ensure the public safety and interest, the defence of India
and Civil defence and internal security and for the trial of certain offences and for matters connected therewith:
It is, therefore, clear that the Act was meant to be a temporary measure in order to ensure public safety and interest and
enable the Government to take immediate steps to protect the internal security and integrity of the country and for trial
of offences committed under the Act or the Rules made thereunder. Section 34 of the Act is the provision which
authorises the Central Government to make Rules under the Act and under Section 35 of the Act the Rules have to be
laid before both Houses of Parliament with such modification or annulment as the Houses may be pleased to make.
Section 36 of the Act gives colour of finality to certain orders passed by an authority which is not a Court. Section 37 of
the Act runs thus:
37. The provisions of this Act or any rule made thereunder or any order made under any such rule shall have effect
notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument
having effect by virtue of any enactment other than this Act.
This section thus expressly overrules or repeals any provision which is inconsistent with the Act or the Rules. Another
important provision which must be noticed is Section 38 of the Act which runs thus:
38. Any authority or person acting in pursuance of this Act shall interfere with the ordinary avocations of life and the
enjoyment of property as little as may be consonant with the purpose of ensuring the public safety and interest and the
defence of India and civil defence and the internal security.
The effect of Section 38 which contains a mandate to the authority acting under the provisions of the Act from
interfering with the ordinary avocations of life and enjoyment of property as little as possible clearly shows that the
rigours of the Act have been softened to a great extent by limiting the actions of the authorities within the four corners
of the express provisions of the Act. Legislature never intended that any drastic action should be taken by the authorities
which may interfere with the liberty of the subject unless it was absolutely essential. We have referred to this provision
particularly because the question with which we are concerned involves the interpretation and applicability of Section
438 which relates to the liberty of the citizen vis-a-vis the pro visions of the Act and the Rules. Against the background
of this important provision of the Act, we have to follow the rule of harmonious construction so as to avoid an
interpretation which makes this provision (which is for protection of the liberty of the citizen) come into conflict with
the Act or the Rules made thereunder, unless such intention is clearly expressed or implied by the legislature. The Act
further contains provisions for Constitution of Special Courts to try particular type of offences, but the procedure is the
same as provided for in the Code. As, however, no such Courts have been constituted in the State of Madhya Pradesh, it
is not necessary for us to dilate on this point. Suffice it to say, that apart from the non obstante clause in Rule 184 of the
Rules, we are not concerned with any other provision of the Code which may have been repealed either directly or
indirectly by Rule 184. The question, therefore, that arises in this case is whether or not Rule 184 of the Rules overrides
the provisions of Sections 436 and 438 of the Code. In other words, we have to decide whether Rule 184 of the Rules is
in any way inconsistent with the provisions of Sections 436 and 438 of the Code. It may be mentioned here that even the
offences created under the Act or the Rules; made thereunder are to be tried under the general law, namely, the Code
with certain modifications, and even in respect of these offences the general law has not been repealed.
13. The Defence of India Act was amended by Ordinance 5 of 1975 dated June 30, 1975 which was later replaced by Act
XLII of 1971 dated August 1, 1975 and the Act was now known as the Defence and Internal Security of India Act, 1971.
Rule 184 of the Rules runs thus:
184. Notwithstanding anything contained in the CrPC, 1898 (V of 1898), no person accused or convicted of a
contravention of these Rules or orders made thereunder shall, if in custody, be released on bail or his own bond unless- .
(a) the prosecution has been given an opportunity to oppose the application for such release, and

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(b) where the prosecution opposes the application and the contravention is of any such provision of these Rules or
orders made thereunder as the Central Government or the State Government may by notified order specify in this
behalf, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention."
An analysis of this rule would reveal a few important featues, namely:
(1) This provision does not in terms confer any power on any Court to pass orders for bail;
(2) It merely lays down certain conditions which have to be followed before an order for bail could be passed in favour
of an accused; and
(3) that unlike Section 438 of the Code this rule applies not only to non-bailable offences but also to bailable offences.
The High Court was of the opinion that in view of this particular distinction between bailable and non-bailable offences
which have been expressly made in Section 438 of the Code, and having regard to the conditions incorporated in Rule
184(a) and (b), Section 438 of the Code is repealed by this rule as being inconsistent with it. We are, however, unable to
agree with the conclusion reached by the High Court for the reasons which we shall give hereafter.
14. To begin with Section 438 of the Code applies only to non-bailable offences. Secondly, the only authorities which are
empowered under this section to grant bail are the Court of Session or the High Court. In view of the fact that an order
for anticipatory bail is an extraordinary remedy available in special cases, this power has been conferred on the higher
echelons of judicial service, namely the Court of Session or the High Court. Another important consideration which
flows from the interpretation of Section 438 of the Code is that this section does not contain any guidelines for passing
an order of anticipatory bail. We might, however, mention here that the term 'anticipatory bail' is really a misnomer,
because what the section contemplates is not anticipatory bail, but merely an order releasing an accused on bail in the
event of his arrest. It is manifest that there can be to question of bail, unless a person is under detention or custody. In
these circumstances, therefore, there can be no question of a person being released on bail if he has not been arrested or
placed in police custody. Section 438 of the Code expressly prescribes that any order passed under that section would be
effective only after the accused has been arrested. The object which is sought to be achieved by Section 438 of the Code
is that the moment a person is arrested, if he has already obtained an order from the Sessions Judge or the High Court,
he would be released immediately without having to undergo the rigours of jail even for a few days which would
necessarily be taken up if he has to apply for bail after arrest.
15. Before, however, we dwell on the real "concept of Section 438 of the Code, we would like to indicate the
circumstances in which this section was added to the new CrPC, 1973. Prior to the new Code there was no provision for
an order of anticipatory bail in the Code, and there appeared to be a serious divergence of judicial opinion on the
question whether or not a Court had the power to pass an order for anticipatory bail. Some of the High Courts held that
the Courts did possess the power, while the other High Courts held that the Courts did not. It is not necessary for us
now to decide as to which view is correct. The controversy that existed before has now been set at rest by enacting
Section 438 in the new CrPC. While the Bill was in the Lok Sabha, Shri Ram Niwas Mirdha the concerned Minister
detailed the various objects of the amendments and one of the observations made by him was that by virtue of the new
amendment there was liberalisation of bail provisions. The relevant part in paragraph 2 of the Statement of Objects and
Reasons published in the Gazette of India Extraordinary Part II - Section 2 dated December 10, 1970 at page 1309 runs
thus:
2. The first Law Commission presented its Report (the Fourteenth Report) on the Reform of Judicial Administration,
both civil and criminal, in 1958; it was not concerned with detailed scrutiny of the provisions of the CrPC, but it did
make some recommendations in regard to the law of Criminal Procedure, some of which required amendments to the
Code.
Apart from this, the clause-wise objects and reasons with respect to Section 438 of the Code (which was Clause 447 in
the Bill) run thus:
As recommended by the Com-mission, a new provision is being made enabling the superior courts to grant anticipatory
bail, i.e., a direction to release a person on bail issued even before the person is arrested. With a view to avoid the
possibility of the person hampering the investigation, special provision is being made that the court granting anticipatory

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bail may impose such conditions as it thinks fit. These conditions may be that a person shall make himself available to
the Investigating Officer as and when required and shall not do anything to hamper investigation.
This clause clearly refers to the recommendations made by the Law Commission in its Forty-first Report which read as
follows:
39.9. Though there is a conflict of judicial opinion about the power of a Court to grant anticipatory bail, the majority
view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail
arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of
disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the
accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are
reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his
liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some
days and then apply for bail.
In its Forty-eighth Report the Law Commission while commenting on the bail provision observed in paragraph 31 as
follows:
31. The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the
recommendations made by the previous Commission (41st Report). We agree that this would be a useful addition,
though we must add that it is in very exceptional cases that such a power should be exercised.
petitioners, the final order should be made only after notice to the public prosecutor. The initial order should only be an
interim one. Further the relevant section should make it clear that the direction can be issued only for reasons to be
recorded, and if the Court is satisfied that such a direction is necessary in the interests of justice.
It would thus appear that while the Law Commission recommended that provision for an order of anticipatory bail to be
effective when a person is arrested should be made, at the same time it stressed that this being an extraordinary power
should be exercised sparingly and only in special cases. It also recommended that this power should not be exercised
without giving notice to the other side. We think, this is why the Legislature has entrusted this power to high authorities
like the Sessions Judge and the High Court and we also feel that in the interests of justice it would be desirable if a final
order is made only after hearing the prosecution. Although this condition is not mentioned in Section 438 of the Code
but having regard to the setting in which the section is placed and the statement of the objects and reasons which is
actually based on the recommendations of the Law Commission, we think that rule of prudence requires that notice
should be given to the other side before passing a final order for anticipatory bail so that wrong order of anticipatory bail
is not obtained by a party by placing incorrect or misleading facts or suppressing material facts. We hope that in future
the Courts will exercise this power keeping our observations in view. We may of course point out that in emergent cases
the Courts may make an interim order of anticipatory bail before issuing notice to the other side. From what has been
said it is clear that the intention of the Legislature in enshrining the salutary provision in Section 438 of the Code which
applies only to non-bailable offences was to see that the liberty of the subject is not put in jeopardy on frivolous grounds
at the instance of unscrupulous or irresponsible persons or officers who may some times be in charge of prosecution.
Now if the intention of the Legislature were that the provisions of Section 438 should not be applicable in cases falling
within Rule 184, it is difficult to see why the Legislature should not have expressly saved Rule 184 which was already
there when the new Code of 1973 was enacted and excepted Rule 184 out of the ambit of Section 438. In other words, if
the intention of provision of Rule 184 of the Rules were to override the provisions of Section 438 of the Code, then the
Legislature should have expressly stated in so many words that the provisions of Section 438 of the Code shall not apply
to offences contemplated by Rule 184 of the Rules. There is, however, no such provision in the Code. In these
circumstances, therefore, the Legislature in its wisdom left it to the Court to bring about a harmonious construction of
the two statutes so that the two may work and stand together. This is also fully in consonance with the principles laid
down by this Court in construing the non obstante clauses in the statutes. In Northern India Caterers Pvt. Ltd v. State of
Punjab MANU/SC/0283/1967 : [1967]3SCR399 this Court observed thus:
A later Act which confers a new right would repeal an earlier right if the fact of the two rights co-existing together
produces inconvenience, for, in such a case it is legitimate to infer that the legislature did not intend such a consequence.

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If the two Acts are general enactments and the latter of the two is couched in. negative terms, the inference would be
that the earlier one was impliedly repealed. Even if the latter statute is in affirmative terms, it is often found to involve
that negative which makes it fatal to the earlier enactment.
Thus one of the main tests pointed out by the Court was that the Court while interpreting the statutes concerned must
infer repeal by the latter statute only if it causes inconvenience or where it is couched in an affirmative or negative terms.
Maxwell on Interpretation of Statutes, 11th Edn., p. 162 observes:
A sufficient Act ought not to be held to be repealed by implication without some strong reason.
We think it is reasonable to presume that the Legislature does not intend to keep contradictory enactments on the
statute book and, therefore, a construction should be accepted which offers an escape from it. Similarly in an earlier case
in Aswini Kumar Ghosh v. Arabinda Bose MANU/SC/0022/1952 : [1953]4SCR1 this Court laid down the proper
approach in interpreting a non obstante clause and observed thus:
It should first be ascertained what the enacting part of the section provides on a fair construction of the words used
according to their natural and ordinary meaning, and the non obstante clause is to be understood as operating to set
aside as no longer valid anything contained in relevant existing laws which is inconsistent with the new enactment.
16. Having regard to the principles enunciated above, we feel that there does not appear to be any direct conflict
between the provisions of Rule 184 of the Rules and Section 438 of the Code. However, we hold that the conditions
required by Rule 184 of the Rules must be impliedly imported in Section 438 of the Code so as to form the main
guidelines which have to be followed while the Court exercises its power under Section 438 of the Code in offences
contemplated by Rule 184 of the Rules. Such an interpretation would meet the ends of justice avoid all possible
anomalies and would at the same time ensure and protect the liberty of the subject which appears to be the real intention
of the Legislature in enshrining Section 438 as a new provision for the first time in the Code. We think that there is no
real inconsistency between Section 438 of the Code and Rule 184 of the Rules and, therefore, the non obstante clause
cannot be interpreted in a manner so as to repeal or override the provisions of Section 438 of the Code in respect of
cases where Rule 184 of the Rules applies.
17. We have already stated that Section 438 of the Code does not contain the conditions on which the order for
anticipatory bail could be passed. As Section 438 immediately follows Section 437 which is the main provision for bail in
respect of non-bailable offences it is manifest that the conditions imposed by Section 437(1) are implicitly contained in
Section 438 of the Code. Otherwise the result would be that a person who is accused of murder can get away under
Section 438 by obtaining an order for anticipatory bail without the necessity of proving that there were reasonable
grounds for believing that he was not guilty of offence punishable with death or imprisonment for life. Such a course
would render the provisions of Section 437 nugatory and will give a free licence to the accused persons charged with
non-bailable offences to get easy bail by approaching the Court under Section 438 and by-passing Section 437 of the
Code. This, we feel, could never have been the intention of the Legislature. Section 438 does not contain unguided or
uncanalised powers to pass an order, for anticipatory bail, but such an order being of an exceptional type can only be
passed if apart from the conditions mentioned in Section 437, there is a special case made out for passing the order. The
words "for a direction under this section" and "Court may, if it thinks fit, direct" clearly show that the Court has to be
guided by a large number of considerations including those mentioned in Section 437 of the Code. When a Court is
dealing with offences contemplated by Rule 184 of the Rules, then it is obvious that though the offences are not
punishable with death or imprisonment for life so as to attract the provisions of Section 437, the conditions laid down
by Rule 184 of the Rules would have to be complied with before an order under Section 438 of the Code could be
passed. In other words, the words "for a direction under this section" and "Court may, if it thinks fit, direct" would
impliedly contain a statutory mandate to the Court in the shape of conditions mentioned in Clauses (a) and (b) of Rule
184 of the Rules, viz., (1) that an opportunity would be given to the prosecution to oppose the application for
anticipatory bail; and (2) the Court must be satisfied that there are reasonable grounds for believing that the accused is
not guilty of the contravention of the Rules. While giving finding on this the Court will have to take into consideration
that under the provisions of the Rules once contravention is alleged the onus lies on the accused to prove that there has
been no such contravention. If we construe the two provisions in this manner, then there would be really no
inconsistency between Section 438 of the Code and Rule 184 of the Rules and both the provisions can co-exist without
coming into conflict with each other. Furthermore, Rule 184 would apply the moment the accused person is taken in
custody and as an order passed under Section 438 of the Code cannot be effective until the person is taken in custody. It
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is therefore obvious that the conditions mentioned in Rule 184 Clauses (a) and (b) start applying the moment the
accused is taken in custody and if an order under Section 438 of the Code has been passed in his favour he would be
released at once.
18. The Legislature never intended that while in such serious offences like murder or those punishable with death or
imprisonment for life the accused should have the facility of an order of anticipatory bail, in offences of a less severe
kind he should be denied benefit of Section 438 of the Code by invoking Rule 184 of the Rules.
19. The learned Counsel for the appellant strongly relied on a decision of the Calcutta High Court in Badri Prosad v.
State MANU/WB/0008/1953 : AIR1953Cal28 where the Court was considering the provisions of Section 13A of the
Essential Supplies (Temporary Powers) Act, 1946 which were couched almost in the same language as Rule 184(b) of the
Rules and the Court pointed out that there was no conflict between Section 13A and Section 497 of the CrPC and
Section 13A can only be regarded as an extension of Section 497 of the Code by incorporating the conditions mentioned
therein in Section 497 of the Code. In this connection the Court observed as follows:
Under Section 497, Criminal P. C, therefore, the Court has also to consider reasonable grounds for belief.... But in a
case, however, under Section 13A, Essential Supplies Act, it is the converse and more difficult case of reasonable ground
for believing that the applicant for bail is not guilty.... Its effect is that Section 13A, Essential Supplies Act, represents a
new species of non-bailable offence with its own rules for bail and that section, therefore, is an extension of Section 497,
Criminal P.C.
20. As against this Mr. Ram Panjwani relied on a few decisions of the Madras, Bombay and Patna High Courts, in
support of the view that the previous section in the Defence of India Rules which was couched almost in the same
language as Rule 184 of the Rules was held to have overruled the provisions of Section 497 of the old CrPC. Reliance
was placed on In re v. Bhuvaraha Iyengar MANU/TN/0464/1941 : AIR1942Mad221 where the Court was dealing with
Rule 130A of the old Defence of India Rules and observed as follows:
In respect of offences which come within the rules framed under the Defence of India Act that Act governs all other
statutory provisions and therefore the provisions of the CrPC with regard to bail do not here apply if Rule 130A is intra
vires, which we hold it to be.
This case is clearly distinguishable, because in the first place in the old CrPC there was no provision for anticipatory bail
at all and, therefore, the question that falls for consideration in the present case never arose in that case at all. Secondly,
the Court has not considered the aspect which we have pointed out in the present case by holding that in view of the
object of the new Code the provisions of Rule 184 Clauses (a) and (b) have to be impliedly imported into Section 438 of
the Code. In these circumstances, therefore, this decision does not appear to be of any assistance to the counsel for the
respondent.
21. Reliance was then placed on a decision of the Bombay High Court in In re Surajlal Harilal AIR 1943 Bom 82 and
particularly to the following observations:
In my opinion the effect of that rule is to repeal the provisions of Section 496, Criminal P.C. in so far as it divests the
Court of its discretion in the matter of refusing bail in cases of bailable offences. All that Rule 130A says in effect is that
notwithstanding the provisions of Section 496 no person accused or convicted of a contravention of the rules under the
Defence of India Act shall be released unless an opportunity is given to the prosecution to oppose the application for
such release. There is nothing left to implication. The Legislature may impliedly repeal penal Acts by a later enactment
like any other statute even if the repeal introduces stringency of procedure or takes away a privilege.
Here also the Court does not expressly hold that the provisions of Section 496 were completely repealed by Rule 130A
of the old Defence of India Rules, but merely held that the said rule will be overruled only to the extent that the Court
would have to give an opportunity to the prosecution to oppose the application before granting bail. This decision,
therefore, does not take the view contrary to the one which we have taken in this case.
22. Lastly reliance was placed on a decision of the Patna, High Court in Saligram Singh v. Emperor AIR 1945 Pat 69
which also took almost the same view as the Bombay High Court. At any rate, these decisions have absolutely no
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bearing on the specific question which we are considering in this particular case, be cause the provision of Section 438 of
the Code is an absolutely new one and did not at all exist when the cases cited by the learned Counsel for the respondent
were decided. We might like to indicate clearly that in the instant case we are only considering whether the provisions of
Rule 184 Clauses (a) and (b) of the Rules are inconsistent with Section 438 of the Code and the question whether
provisions of Rule 184 are inconsistent with any other provision of the Code does not fall for determination in this case.
23. Lastly we might point out that the scope of Rule 184 of the Rules is wider than that of Section 438 of the Code
inasmuch as while Section 438 can be invoked only in cases of non-bailable offences and not in cases of bailable
offences. Rule 184 of the Rules would apply not only to non-bailable offences but also to bailable offences and in these
circumstances, therefore, the conditions mentioned in Rule 184 would have to be impliedly imported into Section 436 of
the Code which deals with orders for bail regarding bailable offences. In other words, the position is that where a person
who is an accused for offences contemplated by Rule 184 of the Rules and which are bailable, yet he cannot get bail as a
matter of right under Section 436 of the Code unless the Court complies with the conditions laid down in Rule 184
Clauses (a) and (b). We have already made it clear that so far as the question of anticipatory bail is concerned that does
not apply to bailable offences at all. We have, therefore, interpreted the provisions of Sections 436 and 438 of the Code
and Rule 184 of the Rules in a harmonious manner so as to advance the object of both the statutes and to effectuate the
intention of the Legislature.
24. Mr. Panjwani submitted that as the offences under the Rules are socio-economic offences which deserve to be
curbed and dealt with severely, that is why, such a provision like Rule 184 has been enshrined in the Rules. That might
be so, but then on the interpretation placed by us it does not in any way soften the rigours imposed by the Act or the
Rules made thereunder for such offences, because in any case the Court would have to comply with the conditions
mentioned in Clauses (a) and (b) of Rule 184. The argument of the respondent may assume some importance if Rule 184
of the Rules had contained a provision by which no bail under any circumstances could be granted to persons accused of
offences contemplated by this provision. This, however, is not the case here.
25. For the reasons given above, we hold as under:
(1) that Section 438 of the Code has not been repealed or overruled by Rule 184 of the Rules but the two have to be
read harmoniously without interfering With the spheres contemplated by each of those provisions. In fact Rule 184 of
the Rules is only supplemental to Section 438 of the Code and contains the guidelines which have to be followed by the
Court in passing orders for anticipatory bail in relation to cases covered by Rule 184 of the Rules;
(2) that there is no real inconsistency between Section 438 of the Code and Rule 184 of the Rules;
(3) that Section 438 of the Code is an extraordinary remedy and should be resorted to only in special cases. It would be
desirable if the Court before passing an order under Section 438 of the Code issues notice to the prosecution to get a
clear picture of the entire situation; and
(4) that in cases covered by Rule 184 of the Rules the Court exercising power under Section 436 or Section 438 of the
Code has got to comply with the conditions mentioned in Clauses (a) and (b) of Rule 184 and only after the Court has
complied with those conditions that an order under any of these sections of the Code in respect of such offences could
be passed.
26. For these reasons, therefore, we think that the High Court of Madhya Pradesh in the instant case, as also in its
Division Bench decisions in Criminal Revn. No. 285 of 1974 MANU/MP/0066/1975 (State v. Shantilal) and Criminal
Revn. No. 286 of 1974 (Madh Pra) (State v. Manoharlal) mentioned in the order under appeal, was wrong in law, and
therefore these decisions are hereby overruled.
27. I, therefore, concur with the judgment proposed by my brother Bhagwati, J., and accordingly allow this appeal, set
aside the order of the High Court dismissing the application of the petitioner in limine and direct the High Court to re-
admit the petition and decide the same on merits in the light of the observations made by us. The parties are directed to
appear before the High Court which shall hear the petition and dispose it of. Until the decision of the High Court on
merits, the appellant will continue on bail.

Page 278

Page 279
MANU/SC/0132/1978
Equivalent Citation: AIR1978SC1594, 1978CriLJ1703, 1979()JLJ1(SC), 1979MPLJ332(SC), (1978)4SCC47,

(1978)SCC(Cri)485, [1979]1SCR335, 1978(10)UJ747
Criminal Misc. Petition No. 1649 of 1978
Appellants: Moti Ram and Ors.

Vs.
Hon'ble Judges:
D. A. Desai and V. R. Krishna Iyer, JJ.
ORDER
Krishna Iyer, J.
1."The law in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to
steal bread", lampooned Anatole France. The reality of this caricature of equal justice under the law, whereby the poor
are priced out of their liberty in the justice market, is the grievance of the petitioner. His criminal appeal pends in this
Court and he has obtained an order for bail in his favour "to the satisfaction of the Chief Judicial Magistrate". The
direction of this Court did not spell out the details of the bail, and so, the magistrate ordered that a surety in a sum of Rs.
10,000/- be produced which, in actual impact, was a double denial of the bail benefit. For one thing the miserable mason
the petitioner before us, could not afford to procure that huge sum or manage a surety of sufficient prosperity. Affluents
do not befriend indigents. For another, the magistrate made an odd order refusing to accept the suretyship of the
petitioner's brother because he and his assets were in another district.
2. If mason and millionaire were treated alike, egregious inegality is an inevitability. Likewise, geographic allergy at the
judicial level makes mockery of equal protection of the laws within the territory of India. India is one and not a
conglomeration of districts, untouchably apart.
3. When this Court's order for release was thus frustrated by magisterial intransigence the prisoner moved this Court
again to modify the original order "to the extent that petitioner be released on furnishing surety to the tune of Rs.
2,000/- or on executing a personal bond or pass any other order or direction as this Hon'ble Court may deem fit and
proper". From this factual matrix three legal issues arise (1) Can the Court, under the CrPC, enlarge, on his own bond
without sureties, a person undergoing incarceration for a non-bailable offence either as undertrial or as convict who has
appealed or sought special leave ? (2) If the Court decides to grant bail with sureties, what criteria should guide it in
quantifying the amount of bail, and (3) Is it within the power of the court to reject a surety because he or his estate is
situate in a different district or State ?
4. This formulation turns the focus on an aspect of liberty bearing on bail jurisprudence. The victims, when suretyship is
insisted on or heavy sums are demanded by way of bail or local bailors alone are persona grata, may well be the weaker
segments of society like the proletariat, the linguistic and other minorities and distant denizens from the far corners of
our country with its vast diversity. In fact the grant of bail can be stultified or made impossibly inconvenient and
expensive if the court is powerless to dispense with surety or to receive an Indian bailor across the district borders as
good or the sum is so excessive that to procure a wealthy surety may be both exasperating and expensive. The problem
is plainly one of the human rights, especially freedom vis-a-vis the lowly. This poignant import of the problem persuaded
the Chamber Judge Justice V.R. Krishna Iyer to invite the Supreme Court Bar Association and the Citizens for
Democracy to assist the Court in decoding the Code and its provisions regarding bail. The Kerala State Bar Federation

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was permitted to intervene and counsel for the parties also made submissions. We record our appreciation of the amici
curiae for their services and proceed to discuss the triple issues formulated above.
5. There is already a direction for grant of bail by this Court in favour of the petitioner and so the merits of that matter
do not have to be examined now. It is a sombre reflection that many little Indians are forced into long cellular servitude
for little offences because trials never conclude and bailors are beyond their meagre means. The new awareness about
human rights imparts to what might appear to be a small concern relating to small men a deeper meaning. That is why
we have decided to examine the question from a wider perspective bearing in mind prisoner's rights in an international
setting and informing ourselves of the historical origins and contemporary trends in this branch of law. Social Justice is
the signature tune of our Constitution and the little man in peril of losing his liberty is the consumer of Social Justice.
6. There is no definition of bail in the Code although offences are classified as bailable and non-bailable. The actual
Sections which deal with bail, as we will presently show, are of blurred semantics. We have to interdict judicial
arbitrariness deprivatory of liberty and ensure 'fair procedure' which has a creative connotation after Maneka Gandhi
MANU/SC/0133/1978 : [1978]2SCR621 .
7. Before we turn to the provisions of the Code and dwell on the text of the Sections we may as well remember what
Justice Frankfurter said :
there is no surer way to misread a document than to read it literally Massachusetts B. and Insurance Co. v. 352 U.S. 128,.
8. Speaking generally, we agree with the annotation of the expression 'bail' given in the American Jurisprudence (2nd
Edn. Vol. 8, Article 2, p. 783) :
The term 'bail bond' and 'recognizance' are used interchangeably in many bail statutes, and quite generally without
distinction by the courts, and are given a practically identical effect.
According to the American Jurisprudence, Article 6, p. 785, there is power in the court to release the defendant without
bail or on his own recognizance. Likewise, the definition of bail as given in Webster's Third New International
Dictionary :
The process by which a person is released from custody.
The concept of bail has a long history briefly set out in the publication on 'Programme in Criminal Justice Reform' :
The concept of bail has a long history and deep roots in English and American law. In medieval England, the custom
grew out of the need to free untried prisoners from disease-ridden jails while they were waiting for the delayed trials
conducted by travelling justices. Prisoners were bailed, or 'delivered, to reputable third parties of their own choosing
who accepted responsibility for assuring their appearance at trial. If the accused did not appeal, his bailor would stand
trial in his place.
Eventually it became the practice for property owners who accepted responsibility for accused persons to forfeit money
when their charges failed to appear for trial. From this grew the modern practice of posting a money bond through a
commercial bondsman who receives a cash premium for his service, and usually demands some collateral as well. In the
event of non-appearance the bond is forfeited, after a grace period of a number of days during which the bondsman may
produce the accused in court Vera Institute of Justice Ten-year Report 1961-71 p. 20.
9. It sounds like a culture of bonded labour, and yet are we to cling to it ! Of course, in the United States, since then, the
bondsman emerged as a commercial adjunct to the processes of criminal justice, which, in turn, bred abuses and led to
reform movements like the Manhattan Bail Project. This research project spurred the National Bail Conference, held in
1964, which in its crucial chain reaction provided the major impetus to a reform of bail law across the United States. The
seminal statutory outcome of this trend was the enactment of the Bail Reform Act of 1966 signed into law by President
Lyndon B. Johnson. It is noteworthy that Chief Justice Earl Warren, Attorney General Robert Kennedy and other legal
luminaries shared the view that bail reform was necessary. Indeed, this legislative scenario has a lesson for India where a

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much later Criminal Procedure Code 1973 has largely left untouched ancient provisions on this subject, incongruous
with the Preamble to the Constitution.
10. An aside. Hopefully, one wishes that socio-legal research projects in India were started to examine our current bail
system. Are researchers and jurists speechless on such issues because pundits regard these small men's causes not
worthwhile ? Is the art of academic monitoring of legislative performance irrelevant for India ?
11. The American Act of 1966 has stipulated, inter alia, that release should be granted in non-capital cases where there is
reasonable assurance that the individual will reappear when required; that the Courts should make use of a variety of
release options depending on the circumstances; that information should be developed about the individual on which
intelligent selection of alternatives should be based.
12. The Manhattan Bail Project, conducted by the Vera Foundation and the Institute of Judicial Administration at New
York University School of Law, found that about sixty-five percent of all felony defendants interviewed could be
recommended for release without bail. Of 2,195 defendants released in this way less than one percent failed to appear
when required. In short, risk of financial loss is an insubstantial deterrent to flight for a large number of defendants
whose ties with the community are sufficient to bring them to court.
13. The consequences of pre-trial detention are grave. Defendants presumed innocent are subjected to the psychological
and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants.
The jailed defendant loses his job ii he has one and is prevented from contributing to the preparation of his defence.
Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.
14. It is interesting that American criminological thinking and research had legislative response and the Bail Reforms
Act, 1966 came into being. The then President, Lyndon B. Johnson made certain observations at the signing ceremony :
Today, we join to recognize a major development in our system of criminal justice : the reform of the bail system.
This system has endured-archaic, unjust and virtually unexamined-since the Judiciary Act of 1789.
The principal purpose of bail is to insure that an accused person will return for trial if he is released after arrest.
How is that purpose met under the present system ? The defendant with means can afford to pay bail. He can afford to buy his
freedom. But the poorer defendant cannot pay the price He languishes in jail weeks, months and perhaps even years before trial.
He does not stay in jail because he is guilty.
He does not stay in jail because any sentence has been passed.
He does not stay in jail because he is any more likely to flee before trial.
He stays in jail for one reason only-because he is poor....
(emphasis added)
15. Coming to studies made in India by knowledgeable Committees we find the same connotation of bail as including
release on one's own bond being treated as implicit in the provisions of the CrPC. The Gujarat Committee from which
we quote extensively, dealt with this matter in depth :
The bail system, as we see it administered in the criminal courts to-day, is extremely unsatisfactory and needs drastic
change. In the first place it is virtually impossible to translate risk of non-appearance by the accused into precise
monetary terms and even its basic premise that risk of financial loss is necessary to prevent the accused from fleeing is of
doubtful validity. There are several considerations which deter an accused from running away from justice and risk of

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financial loss is only one of them and that too not a major one. The experience of enlightened Bail Projects in the United
States such as Manhattan Bail Project and D.C. Bail Project shows that even without monetary bail it has been possible
to secure the presence of the accused at the trial in quite a large number of cases. Moreover, the bail system causes
discrimination against the poor since the poor would not be able to furnish bail on account of their poverty while the
wealthier persons otherwise similarly situate would be able to secure their freedom because they can afford to furnish
bail. This discrimination arises even if the amount of the bail fixed by the Magistrate is not high, for a large majority of those
who are brought before the Courts in criminal cases are so poor that they would find it difficult to furnish bail even in a small amount.
(emphasis added)
16. The vice of the system is brought out in the Report :
The evil of the bail system is that either the poor accused has to fall back on touts and professional sureties for providing
bail or suffer pre-trial detention. Both these consequences are fraught with great hardship to the poor. In one case the
poor accused is fleeced of his moneys by touts and professional sureties and sometimes has even to incur debts to make
payment to them for securing his release; in the other he is deprived of his liberty without trial and conviction and this
leads to grave consequences, namely : (1) though presumed innocent he is subjected to the psychological and physical
deprivations of jail life; (2) he loses his job, if he has one, and is deprived of an opportunity to work to support himself
and his family with the result that burden of his detention falls heavily on the innocent members of the family, (3) he is
prevented from contributing to the preparation of his defence; and (4) the public exchequer has to bear the cost of
maintaining him in the jail Report of the Legal Aid Committee appointee by the Govt. of Gujarat 1971, and headed by
the then Chief Justice of the State, Mr. Justiee P.N. Bhagwati p. 185.
17. The Encyclopaedia Britannica brings out the same point even in more affluent societies :
bail, procedure by which a judge or magistrate sets at liberty one who has been arrested or imprisoned, upon receipt, of
security to ensure the released prisoner's later appearance in court for further proceedings.... Failure to consider financial
ability has generated much controversy in recent years, for bail requirements may discriminate against poor people and
certain minority groups who are thus deprived of an equal opportunity to secure their freedom pending trial. Some
courts now give special consideration to indigent accused persons who, because of their community standing and past
history, are considered likely to appear in court Encyclopaedia Britannica, Vol. I. P. 736 (15th Edn) Micro edn.
We should suggest that the Magistrate must always bear in mind that monetary bail is not a necessary element of the criminal
process and even if risk of monetary loss is a deterrent against fleeing from justice, it is not the only deterrent and there are
other factors which are sufficient deterrents against flight. The Magistrate must abandon the antiquated concept under which pre-
trial release could be ordered only against monetary bail. That concept is out-dated and experience has shown that it has done more harm
than good. The new insight into the subject of pre-trial release which has now been developed in socially advanced
countries and particularly the United States should now inform the decisions of the Magistrates in regard to pre-trial
release. Every other feasible method of pre-trial release should be exhausted before resorting to monetary bail. The
practice which is now being followed in the United States is that the accused should ordinarily be released on order to
appear or on his own recognizance unless it is shown that there is substantial risk of nonappearance or there are
circumstances justifying imposition of conditions on release.... If a Magistrate is satisfied after making an enquiry into the
condition and background of the accused that the accused has his roots in the community and is not likely to abscond, he can safely
release the accused on order to appear or on his own recognizance... Report of the Legal Aid Committee appointed by the Govt. of
Gujarat 1971 P. 185.
(emphasis added)
18. A latter Committee with Judges, lawyers, members of Parliament and other legal experts, came to the same
conclusion and proceeded on the assumption that release on bail included release on the accused's own bond :
.... We think that a liberal policy of conditional release without monetary sureties or financial security and release on
one's own recognizance with punishment provided for violation will go a long way to reform the bail system and help
the weaker and poorer sections of the community to get equal justice under law. Conditional release may take the form
of entrusting the accused to the care of his relatives or releasing him on supervision. The court or the authority granting

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bail may have to use the discretion judiciously. When the accused is too poor to find sureties, there will be no point in
insisting on his furnshing bail with sureties, as it will only compel him to be in custody with the consequent handicaps in
making his defence Report of the Expert Committee on Legal Aid-Processual Justice to the People, May 1973.
19. Thus, the legal literature, Indian and Anglo-American, on bail jurisprudence lends countenance to the contention
that bail, loosely used, is comprehensive enough to cover release on one's own bond with or without sureties.
20. We have explained later that the power of the Supreme Court to enlarge a person during the pendency of a Special
Leave Petition or of an appeal is very wide, as Order 21 Rule 27 of the Supreme Court Rules discloses. In that sense, a
consideration of the question as to whether the High Court or the subordinate courts have powers to enlarge a person
on his own bond without sureties may not strictly arise. Even so, the guidelines which prevail with the Supreme Court
when granting suspension of sentence must, in a broad sense, have relevance to what the Code indicates except where
special circumstances call for a different course. Moreover, the advocates who participated-many of them did-covered
the wider area of release under the Code, whether with or without sureties, and that is why we consider the relevant
provisions of the Code in some detail.
21. Let; us now examine whether there is anything in the provisions of the Code which make this meaning clearly
untenable.
22. A semantic smog overlays the provisions of bail in the Code and prisoners' rights, when cast in ambiguous language
become precarious. Where doubts arise the Gandhian talisman becomes a tool of interpretation : "Whenever you are in
doubt...apply the following test. Recall the face of the poorest and the weakest man whom you may have seen, and ask
yourself, if the step you contemplate is going to be of any use of him." Law, at the service of life, must respond
interpretatively to raw realities and make for liberties.
23. Primarily Chapter XXXIII is the nidus of the law of bail. Section 436 of the Code speaks of bail but the proviso
makes a contradistinction between 'bail' and 'own bond without sureties'. Even here there is an ambiguity, because even
the proviso comes in only if, as indicated in the substantive part, the accused in a bailable offence is prepared to give
bail'. Here, 'bail' suggests 'with or without sureties'. And, 'bail bond' in Section 436(2) covers own bond. Section 437(2)
blandly speaks of bail but speaks of release on bail of persons below 16 years of age, sick or infirm people and women. It
cannot be that a small boy or sinking invalid or pardanashin should be refused release and suffer stress and distress in
prison unless sureties are haled into a far-off court with obligation for frequent appearance ! 'Bail' there suggests release,
the accent being on undertaking to appear when directed, not on the production of sureties. But Section 437(2)
distinguishes between bail and bond without sureties.
24. Section 445 suggests, especially read with the marginal note, that deposit of money will do duty for bond 'with or
without sureties'. Section 441(1) of the Code may appear to be a stumbling block in the way of the liberal interpretation
of bail as covering own bond with and without sureties. Superficially viewed, it uses the words 'bail' and 'own bond' as
antithetical, if the reading is literal. Incisively understood, Section 441(1) provides for both the bond of the accused and
the undertaking of the surety being conditioned in the manner mentioned in the sub-section. To read 'bail' as including
only cases of release with sureties will stultify the sub-section; for then, an accused released on his own bond without
bail, i.e., surety, cannot be conditioned to attend at the appointed place. Section 441(2) uses the word 'bail' to include
'own bond' loosely as meaning one or the other or both. Moreover, an accused in judicial custody, actual or potential,
may be released by the court to further the ends of justice and nothing in Section 441(1) compels a contrary meaning.
25. Section 441(2) and (3) use the word 'bail' generically because the expression is intended to cover bond with or
without sureties.
26. The slippery aspect is dispelled when we understand the import of Section 389(1) which reads :
389 (1) : Pending any appeal by a convicted person the Appellate Court may, for reasons to be recorded by it in writing,
order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that
he be released on bail, or on his own bond.

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The court of appeal may release a convict on his own bond without sureties. Surely, it cannot be that an under-trial is
worse of than a convict or that the power of the court to release increases when the guilt is established. It is not the
court's status but the applicant's guilt status that is germane. That a guilty man may claim judicial liberation pro tempore
without sureties while an undertrial cannot is a reductio ad absurdam.
27. Likewise, the Supreme Court's powers to enalage a prisoner, as the wide words of Order 21 Rule 27 (Supreme Court
Rules) show, contain no limitation based on sureties. Counsel for the State agree that this is so, which means that a
murderer, concurrently found to be so, may theoretically be released on his own bond without sureties while a suspect,
presumed to be innocent, cannot be. Such a strange anomaly could not be, even though it is true that the Supreme Court
exercises wider powers with greater circumspection.
28. The truth, perhaps, is that that indecisive and imprecise language is unwittingly used, not knowing the draftsman's
golden rule :
In drafting it is not enough to gain a degree of precision which a person reading in good faith can understand, but it is
necessary to attain if possible to a degree of precision which a person reading in bad faith cannot misunderstand (Lux
Genthum Lex-Then and Now 1799-1974, p. 7)
29. If sureties are obligatory even for juveniles, females and sickly accused while they can be dispensed with, after being
found guilty, if during trial when the presence to instruct lawyers is more necessary, an accused must buy release only
with sureties while at the appellate level, suretyship is expendable, there is unreasonable restriction on personal liberty
with discrimination writ on the provisions. The hornet's nest of Part III need not be provoked if we read 'bail' to mean
that it popularly does, and lexically and in American Jurisprudence is stated to mean, viz., a generic expression used to
describe judicial release from custodia juris. Bearing in mind, the need for liberal interpretation in areas of social justice,
individual freedom and indigent's rights, we hold that bail covers both-release on one's own bond, with or without
sureties. When sureties should be demanded and what sum should be insisted on are dependent on variables.
30. Even so, poor men-Indians are in monetary terms, indigents young persons, infirm individuals and women are weak
categories and courts should be liberal in releasing them on their own recognisances put whatever reasonable condition
you may.
31. It shocks one's conscience to ask a mason like the petitioner to furnish sureties for Rs. 10,000/-. The magistrate must
be given the benefit of doubt for not fully appreciating that our Constitution, enacted by We, the People of India", is
meant for the butcher, the baker and the candle-stick maker-shall we add, the bonded labour and pavement dweller.
32. To add insult to injury, the magistrate has demanded sureties from his own district; (We assume the allegation in the
petition). What is a Malayalec, Kannadiga, Tamilian or Andhra to do if arrested for alleged misappropriation or theft or
criminal trespass in Bastar, Port Blair. Pahalgam of Chandni Chowk ? He cannot have sureties owning properties in
these distant places. He may not know any one there and might have come in a batch or to seek a job or in a murcha.
Judicial disruption of Indian unity is surest achieved by such provincial allergies. What law prescribes sureties from
outside or non-regional language applications ? What law prescribes the geographical discrimination implicit in asking for
sureties from the court district? This tendency takes many forms, sometimes geographic, sometimes linguistic,
sometimes legalistic. Article 14 protects all Indians qua Indians, within the territory of India. Article 350 sanctions
representation to any authority, including a court, for redress of grievances in any language used in the Union of India.
Equality before the law implies that even a vakalat or affirmation made in any State language according to the law in that
State must be accepted everywhere in the territory of India save where a valid legislation to the contrary exists.
Otherwise, an adivasi will be unfree in Free India, and likewise many other minorities. This divagation has become
necessary to still the judicial beginnings, and to inhibit the process of making Indians aliens in their own home-land.
Swaraj is made of united stuff.
33. We mandate the magistrate to release the petitioner on his own bond in a sum of Rs. 1,000/-.
An After word

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34. We leave it to Parliament to consider whether in our socialist republic, with social justice as its hallmark, monetary
superstition, not other relevant considerations like family ties, roots in the community, membership of stable
organisations, should prevail for bail bonds to ensure that the 'bailee' does not flee justice. The best guarantee of
presence in court is the reach of the law, not the money tag. A parting thought. If the indigents are not to be betrayed by
the law including bail law, re-writing of many processual laws is an urgent desideratum; and the judiciary will do well to
remember that the geo-legal frontiers of the Central Codes cannot be disfigured by cartographic dissection in the name
of language of province.

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MANU/SC/0128/1984
Equivalent Citation: 1984(8)ACR441(SC), AIR1984SC1503, 1984CriLJ1211, 1984(1)SCALE990, (1984)3SCC555,

[1984]3SCR993, 1984(16)UJ969
Special Leave Petition (Criminal) No. 1543 of 1984
Appellants: State through Deputy Commissioner of Police, Special Branch, Delhi

Vs.
Respondent: Jaspal Singh Gill
Hon'ble Judge:
E. S. Venkataramiah, J.
ORDER
E.S. Venkataramiah, J.
1. Four persons-Maj. General (Retd.) F.D. Larkins Air Vice Marshal (Retd.) K.H. Larkins, Lt. Col. (Retd.) Jasbir Singh
and Jaspal Singh Gill alias Jassi Gill, the respondent herein, were accused of having committed offences punishable
under Sections 3, 5 and 9 of the Official Secrets Act, 1923 read with Section 120B of the Indian Penal Code and of them
F.D. Larkins and Jasbir Singh were also accused of having committed the offence punishable under Section 6 of the
Official Secrets Act, 1923 in a complaint filed by the Deputy Commissioner of Police, Special Branch, Delhi with the
authorisation of the Government of India before the Additional Chief Metropolitan Magistrate, Patiala House, New
Delhi.
2. The prosecution case appears to rest inter alia on the following facts : On March 24, 1983, Group Captain Jasjit Singh
informed the Air Vice Marshal (now Air Marshal) Shri S. Raghavendran that for some days immediately prior to that
dale AVM (Retd.) K.H. Larkins then resident of Azad Apartments, Mehrauli Road, New Delhi, under whom he had
served earlier, was inducing him to pass on secrete manuals of aircrafts used by the Indian Air Force for a consideration
of Rs. 20,000/- per document. AVM Raghavendran brought this to the notice of his superiOrs. Thereafter further
information was collected and the movements of AVM (Retd.) K.H. Larkins were kept under observation. The links of
the said K.H. Larkins and his brother Major General (Retd.) F.D. Larkins were discovered. A First Information Report
was registered at Police Station, Tughlak Road, New Delhi.
3. On November 11, 1983 raids were conducted at the residence of K.H. Larkins as well as that of F.D. Larkins. Certain
incriminating items are stated to have been recovered from the latter's house. It is alleged that on interrogation after
arrest F.D. Larkins and K.H. Larkins confessed that they had been passing on classified information relating to the
defence of the country to a foreign agency.
4. It is further alleged that Major General (Retd.). F.D. Larkins stated that he had engaged Lt. Col. (Retd.) Jasbir Singh as
his sub-agent for procuring secret/restricted documents and manuals relating to armament. On this disclosure the search
of the house of Jasbir Singh was conducted on November 13 1983 and he was arrested and remanded to police custody.
It is stated that on interrogation he disclosed that he had been passing on secret/classified information to Major General
(Retd.). F.D. Larkins and Jaspal Singh Gill, the respondent, for monetary consideration. He appears to have further
disclosed that many secret/restricted manuals and documents were unauthorisedly got issued to him from D.G.I. and
EMF libraries to which he gained access through the good offices of certain Army Officers and by impersonating
himself as a serving officer when actually he was retired and that the information contained in these documents and

Page 287
manuals was passed on by him to Major General (Retd.) F.D. Larkins and Jaspal Singh Gill alias Jassi Gill resident of 82,
Sunder Nagar, New Delhi, the respondent, who represented a private firm namely, M/s. EMGEE International Pvt.
Ltd., and with whom he, Lt. Col. (Retd.) Jasbir Singh, was also Working as consultant. On the basis of the said disclosure
made by the said Jasbir Singh, the search of the house of Jaspal Singh Gill alias Jassi Gill, the respondent herein, was
conducted at 82, Sunder Nagar, New Delhi. Some secret/restricted documents alongwith a Defence telephone directory
connected with the Army are stated to have been recovered from his possession and he was arrested on November 19,
1983.
5. It is alleged that the respondent herein had obtained classified information on defence matters through the aforesaid
Jasbir Singh for monetary consideration and bad passed on the information to the U.S. Intelligence OperatOrs. During
the search of the house of Jaspal Singh as many as 13 invitation cards from the U.S. officials for cocktail and dinner
parties are alleged to have been recovered showing the association of the respondent with foreign agents as defined in
Section 4 of the Official Secrets Act. It is alleged that the respondent was paying Rs. 1,000/- per month to Jasbir Singh
and Rs. 1,000/- per month to the wife of Jasbir Singh.
6. It is further alleged that the copy of the Defence telephone directory was a restricted document, the disclosure of the
contents of which to unauthorised persons is prejudicial to the interest and security of the country.
7. All the accused persons including the respondent have been committed to the Court of Sessions for the the various
offences which are really of a serious nature.
8. During the investigation, the respondent made an application for bail before the Addl. Sessions Judge, New Delhi and
it was rejected in January, 1984. Then again he made another application for bail before the Sessions Court. Before the
said application could be taken up, he made an application under Section 482 of the Criminal Procedure Code before the
High Court of Delhi for bail. The learned Judge of the High Court who heard the bail application went into the merits
of the case and after holding that the material before the Court was insufficient to sustain the conviction of the
respondent proceeded to enlarge him on bail subject to his furnishing a personal bond in the sum of Rs. 5,000/- with
one surety in the like amount. It may be stated here that the very same learned Judge had dismissed earlier the bail
application of Jasbir Singh who was the employee of the respondent. Aggrieved by the order of the High Court
enlarging the respondent on bail, the prosecution has filed this Special Leave Petition for revoking the said order of bail.
9. The offence punishable under Section 3 of the Official Secrets Act, 1923 with which the respondent is charged relates
to military affairs and it is punishable with imprisonment which may extend to fourteen years. This Court in The State v.
Captain Jagjit Singh MANU/SC/0139/1961 : [1962]3SCR622 has indicated that the Court should exercise a greater
degree of care in enlarging on bail an accused who is charged with the offence punishable under Section 3 of the Official
Secrets Act when it relates to military affairs. I have also gone through the decisions of this Court in Gurcharan Singh
and Ors. v. State (Delhi Administration) MANU/SC/0420/1978 : 1978CriLJ129 and Gudikanti Narasimhulu and Ors.
v. Public Prosecutor, High Court of Andhra Pradesh MANU/SC/0089/1977 : 1978CriLJ502 which deal with the
principles governing the grant of bail. It may be mentioned here that in the last of the above cases, the accussed had
been acquitted by the trial court but convicted by the High Court on appeal. On a consideration of the above three
decisions, I am of the view that the Court before granting bail in cases involving non-bailable offences particularly where
the trial has not yet commenced should take into consideration various matters such as the nature and seriousness of the
onence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the
presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the
larger interests of the public or the State and similar other considerations.
10. On going through the order passed by the High Court, I feel that its decision that the material collected by the
prosecutions and the evidence to be adduced at the trial would not be sufficient to sustain a conviction appears to be a
premature one in the circumstances of this case. Since the trial is yet to begin, I do not propose to say anything more at
this stage lest it should prejudice either the accused or the prosecution than observing that on a persual of the complaint
and the other material available in the case, it cannot reasonably be stated that the prosecution case against the
respondent is such that it can be thrown out at the threshold. It appears that a prima facie case is made out against the
respondent. The gravity of the offences is quite obvious. They relate to the security of the State, Espionage and
intelligence are utilised to pass on information regarding military plans, equipment, technical advances etc. of one
country to another. Naturally passing on of such information from our country to a foreign country is bound to be most
harmful to our country. The persons accused alongwith the respondent are admittedly ex-military men well versed in
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military affairs who are capable of establishing bridges with the sensitive sections of the defence services. The
respondent is also alleged to be having some dealings with the defence department and Jasbir Singh is in the
employment of the respondent. The allegations made by the prosecution which no doubt have still to be established at
the trial suggest that the respondent and the persons accused alongwith him are persons of easy conscience in so far as
the interests and security of the country are concerned. The current situation in the country is such that it can be easily
be exploited by unscrupulous men to their own or to some foreign power's advantage. These aspects of of the case do
not appear to have been considered by the High Court It is seen that while dismissing the bail application of Jasbir Singh
on April 24, 1984, the learned Judge of the High Court had relied on the decision of this Court in Captain Jagjit Singh's
case (supra), he has not even referred to that decision while granting bail to the respondent on May 3, 1984. Some of the
observations made by the High Court against the sustainability of the case of criminal conspiracy alleged by the
prosecution at this stage were not called for. The circumstances of this case are such that the question whether the case
of criminal conspiracy had been made out or not should have been left to be decided by the trial court at the end of the
trial on a consideration of the entire evidence adduced in the case.
11. In the circumstances, I am of the view that the High Court should not have enlarged the respondent on bail in the
larger interests of the state. It is urged that the respondent is a person who has undergone a cardiac operation and needs
constant medical attention. I am sure that the prison authorities will arrange for proper treatment of the respondent
whenever the deed for it arises.
12. I am informed that in a criminal revision petition filed by one of the accused, the High Court has stayed the trial of
the case The High Court is requested to dispose of the case early since the accused are all in judicial custody.
13. The order of bail passed by the High Court was suspended by this Court by an order, made on June 4, 1984 and the
respondent was ordered to be rearrested and kept in judicial custody. The respondent is now taken back into judicial
custody.
14. In the result, the order of the High Court enlarging the respondent on bail is set aside and the respondent is directed
to remain judicial custody until further orders to be passed by a competent court.
15. The trial court shall proceed to dispose of the case without feeling itself bound by any of the observations of the
High Court.

Page 289
MANU/SC/0017/2005
Equivalent Citation: 2005(1)ACR333(SC), AIR2005SC716, 2005(1)ALD(Cri)825, 2005(2)ALD(Cri)961,

2005(1)ALD825(SC), 2005((1))ALT(Cri)255, 2005(1)ALT(Cri)255, 99(2005)CLT644(SC), 2005CriLJ883,
2005(1)CTC233, 116(2005)DLT354(SC), (2005)2GLR1133, 2005(1)JKJ9[SC], JT2005(1)SC361, 2005(1)KLT471(SC),
2005-1-LW(Crl)95, 2005(1)OLR325, 2005(I)OLR(SC)325, 2005(1)PLJR340, (2005)2SCC13
Criminal Appeal No. 44 of 2005 (Arising out of SLP (Crl.) No. 6192 of 2004)
Appellants: Jayendra Saraswathi Swamigal

Vs.
Respondent: State of Tamil Nadu
Sankararaman Case
Hon'ble Judges:
R. C. Lahoti, C.J., G. P. Mathur and P. P. Naolekar, JJ.
JUDGMENT
G.P. Mathur, J.
1. Leave granted.
2. This appeal, by special leave, has been preferred against the order dated 8.12.2004 of Madras High Court, by which
the petition for bail filed by the petitioner under Section 439 Cr.P.C. was rejected.
3 An F.I.R was lodged at 7.00 p.m. on 3.9.2004 at Police Station B-2, Vishnu Kanchi by Shri N.S. Ganesan. It was stated
therein that at about 5.45 p.m. on 3.9.2004 while he was in the office of Devarajaswamy Devasthanam, two persons
armed with aruval came there and caused multiple injuries to Sanakararaman, In-charge Administrative Manager, who
was sitting on a chair. Three persons were waiting outside and the assailants escaped on their motor cycles. After the
case was registered, necessary investigation followed and several persons have been arrested. According to the case of
the prosecution, the actual assault upon the deceased was made by A-6 and A-7, while four persons, namely, A-5, A-8,
A-9 and A-10 were standing outside.
4. The petitioner, Shri Jayendra Saraswathi Swamigal, who is the Shankaracharya of Kanchi Mutt, Kanchipuram, was
arrested on 11.11.2004 from Mehboob Nagar in Andhra Pradesh. He moved a bail petition before the High Court of
Madras, which was rejected on 20.11.2004 and the second bail petition was also rejected by the impugned order dated
8.12.2004.
5. According to the case of the prosecution, the petitioner had entered into a conspiracy with some other co-accused for
getting Sankararaman murdered. The motive for the commission of the crime is said to be various complaints alleged to
have been made by the deceased levelling serious allegations, both against the personal character of the petitioner and
also his style of functioning as Shankaracharya of the Mutt. In the reply statement filed on behalf of State of Tamil
Nadu, it is averred that the deceased had filed a complaint before the Commissioner HR&CE not to allow the petitioner
to visit China. He filed a writ petition in the Madras High Court claiming the same relief which was later on dismissed as
a statement was made by the petitioner that he had no intention of going to the said country. The deceased sent several
letters alleging that the petitioner was selling properties of the Mutt; was indulging in corruption and misappropriation of
funds. He also made complaint before Special Commissioner, HR&CE that the petitioner was not observing the rules of
Sanyasa Asrama Dharma; was leading a luxurious life enjoying mundane comforts; not performing the Pooja and
Page 290
promoting commercial ventures. It is also the case of the prosecution that the deceased sent a letter under the name of
Somasekara Ganapadigal alleging that the petitioner was indulging in immoral activities and was having relationship with
women and finally a letter was sent by him on 30.8.2004 to the petitioner as "last warning" wherein it was said that when
the petitioner went to Thalakeverj, Kaveri river dried; when he went to the only Hindu Kingdom of Nepal, the entire
royal family was wiped out; and when he went to Kumbakonam, there was a fire tragedy and many innocent lives were
lost. Shri K.T.S. Tulsi, learned senior counsel for the State, has submitted that after receipt of this letter dated 30.8.2004
described as "last warning", the petitioner called accused A-2, A-3 and A-4 and a conspiracy was hatched for eliminating
the deceased.
6. In order to establish the aforesaid motive for commission of crime, the prosecution relies upon copies of 39 letters
which were allegedly recovered from the house of the deceased himself. What the prosecution claims is that the
deceased used to keep copies of all the letters and complaints which he made against the petitioner and it is these copies
which have been recovered from the house of the deceased. The prosecution claims that of these 39 letters or
complaints 5 complaints were found in the office of HR&CE, Chennai which relate to the period 14.8.2001 to
23.1.2002, one in the residence of A-4 and 2 in the residence of the petitioner. In our opinion, the recovery of these
letters from the house of the deceased himself is not a proof of the fact that they were actually received by the petitioner
or were brought to his notice. The deceased was not an employee of the Mutt but was working as In-charge
Administrative Manager of another Dharamsthanam which has nothing to do with Kanchi Mutt and at least since 1998
he had no connection with the said Mutt. Though according to the case of the prosecution, the deceased had started
making complaints against the petitioner since August 2001, there is absolutely no evidence collected in investigation
that the petitioner made any kind of protest or took any kind of action against the deceased. Even otherwise, many
letters or complaints etc. are addressed to people holding high office or position and it is not necessary that they read
every such letter or complaint or take them seriously. There is absolutely no evidence or material collected so far in
investigation which may indicate that the petitioner had ever shown any resentment against the deceased for having
made allegations against either his personal character or the discharge of his duties as Shankaracharya of the Mutt. The
petitioner having kept absolutely quiet for over three years, it does not appeal to reason that he suddenly decided to have
Sankararaman murdered and entered into a conspiracy for the said purpose.
7. Shri F.S. Nariman, learned senior counsel for the petitioner, has submitted that the specific case of the prosecution at
the time of the hearing of the first bail application before the High Court was that a huge sum of money amounting to
Rs.50 lakhs was withdrawn from an account of the Mutt maintained in ICICI Bank, Kanchipuram for being paid to the
hirelings. The same stand was taken by the prosecution when the second bail application was heard by the High Court.
In the two orders passed by the High Court by which the bail petitions were rejected, the plea of the State that the
money was withdrawn from the account of the Mutt in ICICI Bank, Kanchipuram for payment to the hirelings is clearly
mentioned. When the special leave petition was heard for admission on 17.12.2004, a detailed order was passed by this
Court, wherein the State was directed to give particulars of the bank account wherefrom money is alleged to have been
withdrawn by the petitioner for payment to the assailants and also to produce the copy of the account and the passbook,
if any, seized by the investigating agency. However, in the statement in reply which has been filed in this Court by the
State on 6.1.2005, a different stand is taken that an agreement had been entered into for sale of 50 acres of land
belonging to Kanchi Janakalyan Trust to Bhargava Federation Pvt. Ltd. for Rs.5 crores, wherein an advance of Rs.50
lakhs in cash was received on 30.4.2004 and an endorsement regarding receipt of the said amount was made on the
reverse side of the first page of the agreement. It was this money which was retained in cash by the petitioner all along
from which payment was made to the hirelings after the conspiracy was hatched soon after the receipt of the alleged
letter dated 30.8.2004 sent by the deceased which was described as "last warning". No documents of the account in
ICICI bank have been produced in support of the plea which was twice taken by the prosecution before the High Court
while opposing the prayer for bail made by the petitioner.
8. N. Sundaresan (A-23) who is Manager of the Mutt was arrested on 24.12.2004 and was produced before the Judicial
Magistrate, Kanchipuram at 1.45 p.m. on 25.12.2004. He stated before the Magistrate that he had received Rs.50 lakhs in
cash on 30.4.2004 and the said amount was deposited in Indian Bank, Sankara Mutt Branch on 7.5.2004. Learned
counsel for the petitioner has placed before the Court copies of two accounts bearing nos.124 and 125 which the Kanchi
Kamakothi Peetham Shri Sankaracharya Swam has in the Indian Bank at No.1, Salai Street, Kanchipuram. This
statement of account shows that on 7.5.2004 an amount of Rs.28,24,225/- was deposited in cash in account no.124 and
an amount of Rs.21,85,478/- was deposited in cash in account no.125. Thus the total amount which was deposited in
cash comes to Rs.50,09,703/-. Learned counsel has explained that in addition to Rs.50 lakhs which received in cash an
extra amount of Rs.9,703/- was deposited in order to liquidate the overdraft over which penal interest was being charged

Page 291
by the bank. The statement of account clearly shows that after deposit of the aforesaid amount the entire overdraft was
cleared. This clearly shows that the entire amount of Rs.50 lakhs which was received in cash on 30.4.2004 was deposited
in Bank on 7.5.2004. This belies the prosecution case, which was developed subsequently after the order had been
passed by this Court on 17.12.2004 directing the State to produce copy of the ICICI Bank account, that the cash money
was retained by the Petitioner from which substantial amount was paid to the hirelings.
9. The prosecution also relies upon confessional statement of Kathiravan (A-4) recorded under Section 164 Cr.P.C. on
19.11.2004, wherein he stated that he went to the Kanchi Mutt on 1.9.2004 and in the presence of Ravi Subramaniam
and Sundaresan, the petitioner said that Sankararaman had written letters and had filed cases and it was not possible for
him to bear the torture any longer and, therefore, he should be killed on the same day. It is important to mention here
that A-4 retracted his confession on 24.11.2004 when his statement was again recorded under Section 164 Cr.P.C. The
prosecution also relies upon confession of Ravi Subramaniam (A-2) which was recorded on 30.12.2004 wherein he made
a similar statement that the petitioner offered him Rs.50 lakhs on 1.9.2004 for getting rid of Sankararaman.
10. Shri Nariman has submitted that in view of Section 30 of the Evidence Act confession of a co-accused is a very weak
type of evidence which can at best be taken into consideration to lend assurance to the prosecution case. He has referred
to the decision of the Privy Council in Bhuboni Sahu v. The King MANU/PR/0014/1949, wherein it was observed that
confession of a co- accused is obviously evidence of a very weak type and it does not come within the definition of
evidence contained in Section 3 as it is not required to be given on oath, nor in the presence of the accused and it cannot
be tested by cross-examination. Learned counsel has also referred to Kashmira Singh v. State of M.P.
MANU/SC/0031/1952 : 1952CriLJ839 where it was held that the confession of an accused person is not evidence in
the ordinary sense of the term as defined in Section 3 and it cannot be made the foundation of a conviction and can only
be used in support of other evidence. It was further observed that the proper way is, first to marshall the evidence
against the accused excluding the confession altogether from consideration and see whether, if it is believed a conviction
could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to
call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands
even though, if believed , it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the
confession and use it to lend assurance to the other evidence and thus fortify himself in believing such evidence which
without the aid of the confession he would not be prepared to rely on for basing a finding of guilty. Reliance has also
been placed upon the Constitution Bench decision in Haricharan Kurmi v. State of Bihar MANU/SC/0059/1964 :
1964CriLJ344 where it was held that the Court cannot start with the confession of a co- accused person; it must begin
with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect
of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of
guilt which the judicial mind is about to reach on the said other evidence. It was further observed that the confession of
a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the Court is
inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion
deducible from the said evidence. It has thus been urged that the confession of A-4 which was retracted by him
subsequently and also that of A-2 have very little evidentiary value in order to sustain the charge against the petitioner.
11. Shri K.T.S. Tulsi, learned senior counsel, has, on the other hand, placed strong reliance on Section 10 of the
Evidence Act and has submitted that this being a specific provision dealing with a case of conspiracy to commit an
offence, the principle laid down in the authorities cited by Shri Nariman would not apply and anything said, done or
written by any one of the accused is a relevant fact as against each of the person conspiring to commit a crime. In this
connection he has referred to State of U.P. v. Buta Singh MANU/SC/0182/1978 : [1979]1SCR298 State of Maharashtra
v. Damu MANU/SC/0299/2000 : 2000CriLJ2301 Firozuddin Basheeruddin and Ors. V. State of Kerala
MANU/SC/0471/2001 : 2001CriLJ4215 Prakash Dhawal Khairnar v. State of Maharashtra MANU/SC/0788/2001 :
2002CriLJ928 and State of H.P. v. Satya Dev Sharma and Ors. MANU/SC/2898/2000 : (2002)10SCC601.
12. The opening words in Section 10 are "where there is reasonable ground to believe that two or more persons have
conspired together to commit an offence". If prima facie evidence of the existence of a conspiracy is given and accepted,
the evidence of acts and statements made by anyone of the conspirators in furtherance of the common object is
admissible against all. Therefore, there should first be a prima facie evidence that the person was a party to the
conspiracy before his acts or statements can be used against his co-conspirators. No worthwhile prima facie evidence
apart from the alleged confessions have been brought to our notice to show that the petitioner along with A-2 and A-4
was party to a conspiracy. The involvement of the petitioner and A-2 and A-4 in the alleged conspiracy is sought to be

Page 292
established by the confessions themselves. The correct import of Section 10 was explained by the Judicial Committee of
the Privy Council in Mirza Akbar v. King Emperor, MANU/PR/0037/1940 as under :
"The words of Section 10 are not capable of being widely construed so as to include a statement made by one
conspirator in the absence of the other with reference to past acts done in the actual course of carrying out the
conspiracy, after it has been completed. The words "common intention" signify a common intention existing at the time
when the thing was said, done or written by one of them. Things said, done or written while the conspiracy was on foot
are relevant as evidence of the common intention, once reasonable ground has been shown to believe in its existence.
But it would be a very different matter to hold that any narrative or statement or confession made to a third party after
the common intention or conspiracy was no longer operating and had ceased to exist is admissible against the other
party. There is then no common intention of the conspirators to which the statement can have reference."
Here, the confessions of A-2 and A-4 were recorded long after the murder when the conspiracy had culminated and,
therefore, Section 10 of the Evidence Act cannot be pressed into service. However, we do not feel the necessity of
expressing a concluded opinion on this question in the present case as the matter relates to grant of bail only and the
question may be examined more deeply at the appropriate stage.
13. Shri Tulsi has also submitted that there is also evidence of dying- declaration in order to fasten the liability upon the
petitioner and for this reliance is placed upon the statement of S. Vaidyanathan, which was recorded under Section 164
Cr.P.C. on 28.12.2004. This witness has merely stated that he knew deceased Sankararaman and used to talk to him and
further that at 1.30 p.m. on 3.9.2004 Sankararaman contacted him over phone and told him that his petition presented to
HR&CE Department was numbered and if any danger came to him, Jayendra alone will be responsible for the same.
Since the telephonic conversation which the Sankararaman had with this witness, did not relate to the cause of his death
or as to any of the circumstances of the transaction which resulted in his death, the same does not come within the
purview of Section 32(1) of the Evidence Act and is not admissible in evidence.
14. Shri Tulsi, learned senior counsel for the respondent, has also referred to certain other pieces of evidence which,
according to him, showed the complicity of the petitioner with the crime in question. He has submitted that the
petitioner had talked on phone to some of the co-accused. The material placed before us does not indicate that the talk
was with A-6 and A-7 who are alleged to have assaulted the deceased or with A-5, A-8, A-9 and A-10, who are alleged to
have been standing outside. Learned counsel has also submitted that there are two other witnesses who have heard the
petitioner telling some of the co-accused to eliminate the deceased. The names and identity of these witnesses have not
been disclosed on the ground that the interrogation is still in progress. However, these persons are not employees of the
Mutt and are strangers. It looks highly improbable that the petitioner would talk about the commission of murder at
such a time and place where his talks could be heard by total strangers.
15. Shri Tulsi has lastly submitted that the prohibition contained in Section 437(1)(i) Cr.P.C. that the class of persons
mentioned therein shall not be released on bail, if there appears to be a reasonable ground for believing that such person
is guilty of an offence punishable with death or imprisonment for life, is also applicable to the Courts entertaining a bail
petition under Section 439 Cr.P.C. In support of this submission, strong reliance has been placed on a recent decision of
this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Anr. MANU/SC/0214/2004 :
2004CriLJ1796. The considerations which normally weigh with the Court in granting bail in non-bailable offences have
been explained by this Court in State v. Capt. Jagjit Singh MANU/SC/0139/1961 : [1962]3SCR622 and Gurcharan
Singh v. State (Delhi Admn.) MANU/SC/0420/1978 : 1978CriLJ129 and basically they are - the nature and seriousness
of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of
the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with;
the larger interest of the public or the State and other similar factors which may be relevant in the facts and
circumstances of the case. The case of Kalyan Chandra Sarkar (supra) was decided on its own peculiar facts where the
accused had made 7 applications for bail before the High Court, all of which were rejected except the 5th one which
order was also set aside in appeal before this Court. The 8 th bail application of the accused was granted by the High
Court which order was subject matter of challenge before this Court. The observations made therein cannot have
general application so as to apply in every case including the present one wherein the Court is hearing the matter for the
first time.
16. For the reasons discussed above, we are of the opinion that prima facie a strong case has been made out for grant of
bail to the petitioner. The appeal is accordingly allowed and the impugned order of the High Court is set aside. The
Page 293
petitioner shall be released on bail on his furnishing a personal bond and two sureties to the satisfaction of the Chief
Judicial Magistrate, Chengleput. Shri Nariman has made a very fair statement that till the investigation is under progress,
the petitioner shall not visit the Mutt premises. We accordingly direct that till the submission of the charge sheet in
Court, the petitioner shall not visit the Mutt premises. He shall also surrender his passport before the CJM.
17. Before parting, we would like to place it on record by way of abundant caution that whatever has been stated
hereinabove in this order has been so said only for the purpose of disposing of the prayer for bail made by the
petitioner. Nothing contained in this order shall be construed as expression of a final opinion on any of the issues of fact
or law arising for decision in the case which shall naturally have to be done by the trial court seized of the trial. We have
only formed a prima facie opinion and placed the same on record in fairness to the learned senior counsel for the State
who raised those pleas and vehemently urged the same by citing various provisions of law and the authorities.

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MANU/SC/3568/2006
Equivalent Citation: 2006(3)ACR2559(SC), 2006(6)ALD103(SC), 2006((3))ALT(Cri)82, (2006)205CTR(SC)53,

[2006(4)JCR89(SC)], JT2006(8)SC328, 2006-2-LW(Crl)712, 2006(8)SCALE161, (2006)6SCC613, [2006]Supp(4)SCR742
Writ Petition (Criminal) Nos. 197-198 of 2004
Appellants: Rajiv Ranjan Singh 'Lalan' and Anr.

Vs.
Respondent: Union of India (UOI) and Ors.
Hon'ble Judges:
K. G. Balakrishnan, Dr. AR. Lakshmanan and S. H. Kapadia , JJ.
JUDGMENT
K.G. Balakrishnan, J.
1. These writ petitions are filed as Public Interest Litigation by the two petitioners herein who were Members of the
Parliament at the time of filing the petitions. Respondent nos. 4 and 5 were formerly Chief Ministers of the State of
Bihar. It is alleged by the petitioners that they filed writ petitions before the High Court of Patna alleging large-scale
defalcation of public funds and falsification of accounts involving hundreds of crores of rupees in the Department of
Animal Husbandary in the State of Bihar and pursuant to these allegations, several cases were registered by the Police
and investigation of these cases was later handed over to the Central Bureau of Investigation. In an earlier petition filed
before this Court on 19.3.1996, this Court directed that the investigation shall be monitored by the Division Bench of
the Patna High Court and in that Order, it was indicated that the CBI Officers entrusted with the investigation shall
inform the Chief Justice of Patna High Court from time to time of the progress made in the investigation and if they
needed any directions in the matter of conducting the investigation, obtain them from him and it was also said that the
learned Chief Justice may either post the matter for directions before a Bench presided over by him or constitute any
other appropriate Bench. It was also directed that the State Government shall co-operate in assigning adequate number
of Special judges to deal with the cases expeditiously so that no evidence may be lost.
The petitioners allege that consequent upon change of the Government in the center, attempts have been made to delay
and interfere with the judicial process. It is alleged that the public prosecutors who were handling the cases were
removed and to protect the interests of respondent nos. 4 and 5, convenient prosecutor was appointed.
2. The respondent no. 5 is an accused in a case registered under the Prevention of Corruption Act, 1988. The case is
filed pursuant to the FIR registered as no. R.C. 5[A] 498/AHD-Pat dated 19.8.1998. The allegation in that case is that
respondent no. 5 as Chief Minister of Bihar between 1990 to 1996 had acquired assets disproportionate to his known
sources of income. Chargesheet was filed in the Court of the Special Judge, CBI, Patna on 4.4.2000 under Section
13(1)(e) of the Prevention of the Corruption Act, 1988. Respondent no. 4 also was charge sheeted in the same case for
abetment under Section 109 of the IPC read with Section 13(2) and Section 13(1)(e) of the Prevention of Corruption
Act, 1988. This case has been re-numbered as Special Case No. 5/1998 and is pending trial in the Court of the Special
Judge, CBI, Patna. The petitioners allege that certain income tax cases of respondent nos. 4 and 5 were pending before
the Income Tax Appellate Tribunal (ITAT) and one Mr. D.K. Tyagi who was a member of the ITAT had been hearing
those cases and that respondent nos. 4 and 5 found it difficult to pursue the hearings before the said ITAT member and
hence at their influence Mr. Tyagi was sent on deputation and he was replaced by one Mr. Mohanarajan who was on the
verge of retirement. It is further alleged that the new member alongwith another member heard these cases within two
weeks and orders were pronounced in favour of respondent nos. 4 and 5. It is also alleged that respondent no. 3, namely,
the Central Board of Direct Taxes did not prefer appeal in these cases though the decision went against the revenue.

Page 295
This, according to the petitioners, was to help respondent nos. 4 and 5 in the cases filed against them based on the
allegation that they acquired assets disproportionate to their known sources of income.
3. The petitioners have also alleged that the Special Case No. 5/1998 pending before the Special Judge, CBI was at the
final stage of hearing and that the Director, CBI, presumably under pressure from the accused changed the prosecutor
and appointed one Shri Oma Shankar Singh who was only a retired Deputy Superintendent of Delhi Police and had no
experience of conducting the prosecution. According to the prosecution, this was done at the fag end of the prosecution
case to help the accused. The petitioners have made allegations against respondents 1 to 3 also that they were acting
arbitrarily and interfering in the judicial process to benefit the respondent nos. 4 and 5. The petitioners have alleged that
respondent nos. 4 and 5 obtained stay of proceedings of the case pending before the Special Judge from this Court
suppressing some material facts. It is alleged that the respondent nos. 4 and 5 still wield influence and power and,
therefore, this Court should monitor the trial of the case pending before the Special Judge, CBI, at Patna.
4. In these Writ Petitions, the petitioners have prayed mainly four reliefs. The first relief prayed is to issue an appropriate
writ, order or direction monitoring the conduct of the trials relating to fodder scam cases proceedings against
respondent nos. 4 and 5 in the States of Bihar & State of Jharkhand. The second prayer is to appoint the very same
prosecutor who had been conducting prosecution earlier and to direct the High Court to see that no prosecutor or CBI
Officer attached with the investigation and trial of the case should be removed, harassed or victimized for discharging
their duties. The petitioners have also prayed that at least one inspector be provided for each fodder case. The
petitioners have also prayed for cancellation of bail granted to respondent nos. 4 and 5. Petitioners have further prayed
for a direction to respondents 1 to 3 to file an appeal against the orders passed by the ITAT.
5. During the pendency of these Writ Petitions, the Counsel for the petitioners alleged that the Special Judge who was
trying the case involving respondent nos. 4 and 5, was being replaced by another Special Judge. The allegation was that
one Shri Yogender Prasad was the CBI Special Judge and he was being replaced by one Shri Muni Lal Paswan and this
according to the petitioners was deliberately done to help the respondent nos. 4 and 5. In view of the allegations made
by the petitioners, this Court on 1.8.2005 directed the Registrar General of the Patna High Court to send details and files
as to when Judge Shri Yogender Prasad was promoted as a District Judge and all papers regarding posting of the
subsequent officer Shri Muni Lal Paswan. As regards the posting of Shri Muni Lal Paswan as a Special Judge, this Court
again passed an Order on 26.10.2005 and the Registrar of the High Court was directed to give further clarification in the
matter. The Registrar General of the High Court of Patna appeared in person before us and filed an affidavit giving out
the details leading to the decision of the Standing Committee of the High Court to post Shri Muni Lal Paswan as a
Special Judge, CBI case Patna.
6. In view of the allegations made by the petitioners in respect of the cases pending before the ITAT, the President of
the ITAT was directed to send all papers pertaining to the constitution of the Bench of Shri P. Mohanarajan and Shri
M.K. Sarkar which disposed of the various appeals pending before the ITAT. The President of the ITAT has submitted
a report and also produced relevant papers before us. In view of the allegation made by the petitioners regarding the
appointment of a new prosecutor in place of earlier prosecutor, this Court directed the 3 rd respondent to produce the
entire files including the notations pertaining to the appointment of Shri Oma Shankar Sharma as Prosecutor.
7. Refuting the allegations contained in the Writ Petition, detailed counter-affidavits have been filed by the respondents.
In the joint counter-affidavit of respondent nos. 4 and 5, they have alleged that the writ petitions contain vague and
indefinite allegations and they are made with political motive to satisfy their personal grudge and that this is an abuse of
the process of the Court. The respondents have alleged that the Public Interest Litigation shall not be used for private or
political motives or for other consideration. It is also alleged that Special Case no. 5/98 pending before the Special Judge
is a case registered under Sections 13(2) and 13(1) of the Prevention of Corruption Act and it has nothing to do with the
'fodder scam' case. The various allegations made in the Writ Petitions have been denied specifically.
8. We heard the learned Senior Counsel Shri Mukul Rohtagi for the petitioner and Solicitor General appearing for
respondents 1 to 3 and also the learned Counsel for respondent nos. 4 and 5. At the time of the arguments, the learned
Counsel for the petitioners submitted that the petitioners in the present facts and circumstances of the case only pray for
appointment of an appropriate prosecutor to conduct the case pending before the Special Judge and that the bail of the
respondent nos. 4 and 5 be cancelled and Respondent no. 3 be directed to file appeals against the orders passed by the
ITAT. The petitioners also submitted arguments to the effect that the appointment of the present Special Judge was not
done properly. No specific prayer was made by the petitioners to change the Presiding Officer. They, however,
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submitted a request that High Court may be directed to reconsider the appointment and posting of Shri Muni Lal
Paswan as a Special Judge.
9. We shall first consider the prayer of the petitioners as to whether any irregularities have been committed in the matter
of disposal of cases against respondent nos. 4 and 5 by the Income Tax Appellate Tribunal, Patna. The petitioners have
alleged that Shri D.K. Tyagi, who had been hearing the cases of respondent nos. 4 and 5 and proving to be difficult
during the course of the hearing, was curiously sent on deputation and was replaced by Shri Mohanarajan, who was on
the verge of the retirement, to head the Tribunal. It is further alleged that Shri Mohanarajan picked up only two cases
pertaining to respondent nos. 4 and 5 even though the matter had been heard fully by another bench, and within two
weeks, the cases were heard and allowed in favour of the assessees namely respondent nos. 4 and 5, and that he had no
background of the case and had not disposed of any other matter. The petitioners alleged that after the disposal of these
cases by the Tribunal, steps were not taken to file appeal against these orders and that was done at the instance of
respondent nos. 4 and 5.
10. The entire allegations made by the petitioners are denied. The President of the Income Tax Appellate Tribunal
submitted a report regarding the manner in which income tax cases of respondent nos. 4 and 5 were disposed of by the
Tribunal. The President has stated that he took over as the President of ITAT on 31.10.2003 and at that time a petition
filed by Respondent no. 5 for transfer of cases from Patna to Delhi was pending. The Department after considering the
legal aspects declined to transfer the cases of respondent no. 5 to Delhi. It was suggested and noted on the files "it may
perhaps be worthwhile to consider constituting a Special Bench for early disposal of these appeals". Shri D.K.
Tyagi sent a representation on 12.1.2004 praying that he may be transferred to Delhi as his mother was 80 years old and
with deteriorating health and that he was anxious to arrange marriage of his daughter and his son was studying at Delhi.
There were some other developments also as Shri D.K. Tyagi had left India without permission and a show-cause notice
was issued to him. He filed an explanation and came over to Delhi to personally explain the things and he was allowed
to remain at Delhi for some period and the President of the ITAT, with a view to inculcate judicial discipline, decorum
and proper behavior from the Bench, made Shri Tyagi to sit in Delhi Bench of the ITAT alongwith the seniormost
Accountant Member. There were also other circumstances whereby Shri. Tyagi wanted his transfer from Patna to avoid
recurrence of another incident in view of the repeated confrontations with the Bar. It was under these circumstances
Shri Mohanarajan was directed to camp at Patna in June, 2004. Another member Shri Aggarwal also expressed his
inability to camp at Patna. Shri P. Mohanarajan alongwith Shri M.K. Sarkar who was a senior member of the Tribunal,
dealt with the cases of respondent nos. 4 and 5. The President has also refuted an allegation that Shri Sarkar was selected
to camp at Delhi only for a short period to dispose of this case. He has brought to our notice that the Bench disposed of
11 appeals of respondent no. 5 and several other cases and that 136 cases were disposed of during that period and the
list of such cases and details are given at Annexure I.
As regards non-filing of the appeals against the order passed by ITAT, the Chief Commissioner of Income Tax-VIII in
New Delhi had filed affidavit wherein it is stated that the question was referred to the Central Board of Direct Taxes for
consideration and he had sought opinion from the Ministry of Law. The Central Board of Direct Taxes and the Ministry
of Finance obtained the opinion of the Ministry of Law to the effect that no substantial questions of law arose out of the
judgments of the ITAT in the cases of respondent nos. 4 and 5 for filing appeals before the High Court and thus
instructions were issued not to appeal against these cases.
11. The allegations made by the petitioners that there were serious irregularities in disposing of the cases of respondent
nos. 4 and 5 are not factually correct. The very foundation of the allegation is that Shri Tyagi, member of the Appellate
Tribunal was transferred from Patna to Delhi at a time when he was hearing appeals is factually incorrect. It is also not
correct to say that appeals were disposed of by the member of the Tribunal who was on the verge of retirement. The
petitioners could not point out any procedural irregularity in the manner in which these appeals were disposed of. After
going through the affidavits and reports and various other papers, we are satisfied that the allegations made by the
petitioners are not true. The petitioners have prayed that this Court should direct the authorities to file appeal against the
orders passed by ITAT in the cases of respondent nos. 4 and 5. In a collateral proceedings like this, the petitioner cannot
seek any remedy of Writ of Mandamus directing the authorities to file appeals against such orders. An appeal is a
statutory remedy available to the Department and the third party like Writ Petitioner cannot seek such remedies in
collateral proceedings like this. Moreover, the petitioners could not point out anything to show that there were serious
procedural irregularities on the part of the Department in not filing the appeal. The Department had taken opinion of
the Central Board of Direct Taxes as well as the Ministry of Finance and the Ministry of Finance had sought the opinion
of the Ministry of Law. The petitioners have not made any specific allegation that these decisions were taken at the

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behest of respondent nos. 4 and 5 or any undue influence was exerted to take such decisions. The allegations made by
the petitioners are vague and indefinite. Therefore, the prayer for Writ of Mandamus to direct the respondent nos. 1 to 3
to file an appeal against the ITAT orders cannot be allowed and is liable to be rejected.
12. The next prayer of the petitioners is that the Special Judge who is dealing with the CBI cases at Patna was not
properly appointed by the High Court of Patna and another Judge who was dealing with this case was suddenly
transferred to help respondent nos. 4 and 5. It may be noticed, at the outset, that no such allegations have been made in
the original Writ Petition. The petitioners filed IA as Criminal Miscellaneous Petition nos. 6589-6590 of 2005 wherein
certain allegations have been made. Subsequent to this filing of these interim petitions, the original writ petition was not
amended and no prayer was incorporated in the relief portion as to whether the present Special Judge is to be removed
or not. In the interlocutory application as Criminal Miscellaneous Petition nos. 6589-6590 of 2005, the petitioners
alleged that taking undue advantage of the ongoing summer vacations, in an attempt to over reach the orders passed by
this Hon'ble Court which was already seized of the matter in its entirety, the Patna High Court on the administrative
side, has directed the transfer of the Special Judge(AHD), Patna. Such act according to the petitioners amounts to
contempt of this Hon'ble Court and the petitioners reserved their right to initiate appropriate proceedings for contempt
against the persons responsible for the same. The petitioners sought for stay of the transfer of the then Special Judge
Shri Yogender Prasad. This Court on 1.8.2005 passed the following order:
At the request of the learned Counsel appearing for the parties, the petitions are fixed for hearing on 20th September,
2005.
In the meantime, the prosecution arguments may continue but thereafter the trial to remain stayed and defence
argument not to start without further orders of this Court.
The Registrar General of the Patna High Court to send the details and files when Judge Yogender Prasad was promoted
as a District Judge and all papers regarding posting of the present incumbent Shri Muni Lal Paswan.
13. This Court declined to grant stay of transfer of Special Judge Shri Yogender Prasad as he was promoted to the post
of Principal Sessions Judge. This Court also passed an Order on 26.12.2005 wherein the details regarding the
appointment of the present incumbent Shri Muni Lal Paswan were sought from the High Court. The entire records
relating to the appointment of Shri Muni Lal Paswan as a special judge CBI, Patna have been produced in this case
including the Confidential Registers of the various officers. On perusal of these records, we find that the Standing
Committee of the High Court took a decision to post Shri Muni Lal Paswan as the CBI Special Judge, Patna. Six senior
most judges of the High Court of Patna constituted the Standing Committee of the High Court and the decision was
taken in the meeting of the Committee held on 22nd June, 2005. The decision of the Standing Committee is recorded as
follows:
Having considered the relevant service records of the officers concerned as also taking into consideration the fact that
no allegation petition has been received against Sri Muni Lal Paswan, Additional District Judge, Sahara. It is resolved
that let him (Sri Muni Lal Paswan) be posted as Special Judge for C.B.I.(Fodder Scam Cases) at Patna. It is further
resolved upon consideration of the relevant service records of the officers concerned that Shri J.P. Ratnesh, Additional
District Judge, Patna, be posted as Special Judge, C.B.I. (South Bihar) and Sri Ram Niwas Prasad, Additional District
Judge, Patna, as Special Judge for Vigilance Case (Court No. 1).
In view of the urgency of the matter, the officer Is directed to take necessary steps for issue of notification immediately.
14. Though the petitioners have not made any allegations in the Writ Petitions, at the time of argument, the learned
Senior Counsel stated that Shri Muni Lal Paswan was having poor record and he was not senior to be appointed as a
Special Judge. We have perused the Confidential Register of Shri Muni Lal Paswan which was made available to us. Of
course, the Confidential Register of this Officer was available only upto 2003. For some period, he was working on
deputation and the inspecting judge had not recorded the confidential registers for that period, though the confidential
registers of other officers were available to the Standing Committee. The Confidential Reports of Shri Muni Lal Paswan
from 1981 to 2003 have been produced in Court. We have perused the Confidential Register of this Officer and it has
been repeatedly recorded that this Officer has maintained honesty and integrity during the period under report. About
his conduct and integrity, nothing adverse is reported against him. Of course, in some of the years, this Officer has been

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graded as 'Category B' with regard to his judicial performance. These are all matters considered by the Standing
Committee which consists of senior judges of the High Court. The appointment of this Officer is not challenged by the
petitioners and no pleadings also made in the main Writ Petition. By filing a Criminal Miscellaneous Application, the
petitioners have made series of allegations which are not borne out by any records. If at all, the petitioners had any
grievance regarding the appointment of any particular Officer, the proper remedy was to approach the High Court and
to bring this fact to the notice of the Chief Justice. Under the above circumstances, we do not find any material on
record to show that there was any illegality or serious infraction of any procedure in the appointment of the present CBI
(Special Judge), Patna and the appointment as such cannot be challenged in a collateral proceedings and this Court
cannot go into the question of appointment of a Special Judge which is exclusively within the domain of the High Court
under Article 235 of the Constitution. Therefore, the oral appeal of the petitioners for the change of the Officer of the
Special Judge cannot be granted.
15. The learned Counsel for the petitioners also alleged that the public prosecutor who was conducting the case no. 5/98
against the respondent nos. 4 and 5 was removed by the Director of the CBI presumably under pressure from the
accused and one Uma Shankar Singh was appointed and he was a Deputy Superintendent of Delhi Police and had
commenced his law practice only recently. The petitioners alleged that the respondent nos. 4 and 5 were unnecessarily
interfering in the course of justice and managed to change the public prosecutor who was diligently discharging his
duties.
16. In the rejoinder affidavit filed on behalf of the petitioners, the petitioners reiterated their allegation and stated that
Shri L.R. Ansari who had been conducting the disproportionate assets case, had examined 225 witnesses, was sent
elsewhere and some other public prosecutor was appointed. Refuting all these allegations, a counter- affidavit was filed
on behalf of respondent no. 2 CBI. In the counter- affidavit, it is stated that disproportionate assets case against
respondent nos. 4 and 5 was being conducted by Shri L.R. Ansari, right from the beginning. He had examined 132
witnesses from the prosecution and the defence had also examined 93 witnesses. Arguments on behalf of the petitioners
were completed on 14.7.2004 and the arguments on behalf of the defence started on 19.7.2004 and as the case was
practically over, it was decided to avail Shri Ansari's service in other Animal Husbandary cases. It is also stated that if
found necessary, Mr. Ansari would be called to give any reply at the end of the case. As regards Shri Oma Shankar
Sharma, it is submitted that he had started his practice as an Advocate on 23.2.1968 and he was appointed as a
Prosecutor in 2.1.1973 in Delhi and conducted several cases before criminal courts in New Delhi. He was promoted as
Senior-cum-Additional Public Prosecutor on 16.10.1992 and conducted several important cases including TADA cases.
He was appointed as a Legal Adviser to the Commissioner of Police, Delhi and continued upto 31.8.2003.
From the averments made in the counter-affidavit, it is clear that the earlier prosecutor Shri Ansari had completed the
cases and examined all the witnesses for the prosecution as well as for the defence and he had also submitted his entire
arguments to the Special Judge. Therefore, the contention of the petitioners that the prosecutor was purposely changed
to give benefit to respondent nos. 4 and 5 is not correct. There is no allegation to prove that respondent nos. 4 and 5
had in any way interfered with the appointment of the Public Prosecutor. The petitioners could not produce any
documents to show that the allegations made in the original petitions were true.
17. The learned Counsel for the respondent nos. 4 and 5 submitted that the original petition is a politically motivated
move to malign respondent nos. 4 and 5 and this sort of public interest litigation should not be entertained by the Court
and placed reliance on the series of decisions passed by this Court. It may be noticed that the case nos. 5/98 has been
filed against the respondent nos. 4 and 5 alleging that they had amassed wealth disproportionate to their known sources
of income while holding the post of Chief Minister of the State of Bihar. Both the petitioners are not in any way
connected with this case. They are not de-facto complainant in this case. It is for the prosecution to prove its case and
the respondent nos. 4 and 5 to deny that the allegations are not true and they did not have the disproportionate income
as alleged by the prosecution. It is a criminal litigation exclusively between respondent nos. 4 and 5 and the State. It is
also important to note that in a case of this nature, nobody else has got any right to interfere especially by way of public
interest litigation or else such public interest litigation would only hamper the course of justice and may cause prejudice
to the accused by denying a fair trial. In this case, as early as 2004, 132 witnesses were examined on the side of the
prosecution and 93 witnesses were examined on the defence side. Arguments of the prosecution were over as early as in
14.7.2004 and the defence arguments continued upto 19.7.2004. Because of the present public interest litigation, the trial
could not be conducted. It is equally important to note that though the petitioners have alleged series of irregularities,
but they are not supported by basic facts having solid foundation.

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18. This Court in Janata Dal v. H.S. Chaudhary and Ors. MANU/SC/0532/1992 : 1993CriLJ600 held that in a
criminal case, a person who has no interest shall not invoke the jurisdiction of the Court by intervening in the
proceedings and a person acting bona fide and having sufficient interest in the proceeding alone has locus standi to file a
public interest litigation and a person for personal gain or private profit or political motive, or any oblique consideration
has no such right to file public interest litigation.
19. The respondent nos. 4 and 5 relied on Ashok Kumar Pandey v. State of W.B. MANU/SC/0936/2003 :
AIR2004SC280 . That is a case where petition was filed under Article 32 of the Constitution purportedly in public
interest but the prayer was to the effect that the death sentence imposed on one 'D' by the Sessions Court, affirmed by
the Calcutta High Court and the Supreme Court, needed to be converted to a life sentence because there had been no
execution of the death sentence for a long time. Therein, this Court said that a person acting bona fide and having
sufficient interest in the proceeding alone can initiate public interest litigation and that the court must not allow its
process to be abused for oblique considerations.
20. In Union of India and Ors. v. Sushil Kumar Modi and Ors. MANU/SC/0062/1998 : (1998)8SCC661 , a three
Judge bench of this Court held that once a charge-sheet is filed in the competent court after completion of the
investigation, the process of monitoring by the monitoring Court for the purpose of making the CBI and other
investigative agencies concerned perform their function of investigating into the offences concerned comes to an end;
and thereafter it is only the court in which the charge-sheet is filed which is to deal with all matters relating to the trial of
the accused, including matters falling within the scope of Section 173(8) of the Code of Criminal Procedure.
21. In the instant case, the petitioners have approached this case by filing this public interest litigation under Article 32
of the Constitution at the time when the recording of the prosecution evidence was almost over and the trial of the case
reached a final stage. If at all, the petitioners had any grievance regarding the removal of the public prosecutor, they
should have submitted their grievance before the Special Judge or before the High Court. It is already noticed that the
petitioners had no direct connection with this case. They were absolutely strangers as regards the criminal cases against
respondent nos. 4 and 5 which was pending before the Special Judge. This unnecessary interference in the criminal case
may cause, sometimes, damage to the prosecution case and at times may cause serious prejudice to the accused also. In
any view of the matter, this sort of interference in the criminal prosecution would only deny a fair trial to the accused.
22. The petitioners in the writ petitions have prayed to re-engage the same prosecutor who was handling the case in the
Trial Court from the very beginning of the trial. The earlier prosecutor had already been deployed to conduct some
other case and we do not think that there is any necessity to give any direction to the CBI. However, the CBI would be
at liberty to make use of the services of the earlier Prosecutor Shri Ansari. The second prayer of the petitioners that the
present Special Judge is to be replaced by another Judicial Officer also cannot be granted as the appointment of the
Judge has been validly made by the High Court. In the petition, there was no allegation against the present Judicial
Officer warranting his removal from the post.
23. The petitioners prayed for a Writ of Mandamus directing the respondent nos. 1 to 3 to file appeal against the orders
passed by the ITAT. The petitioners have not made out any case for issuing any such Writ of Mandamus. The
respondent nos. 1 to 3, after following the due procedure, have decided not to file an appeal against the order passed by
ITAT and we do not find any reason to give any direction to file appeal. The last prayer of the petitioners is that the bail
granted to respondent nos. 4 and 5 is liable to be set aside. The petitioners could not prove anything that these
respondents have interfered in the course of justice and they misused the privilege of bail extended to them. The
petitioners have also no case that they are likely to flee from justice. The petitioners have not made out any case for
cancellation of their bail.
The prayers sought for in the Writ Petitions cannot be allowed and the Writ Petitions being without any merits are liable
to be and dismissed accordingly. All interim orders passed in the Writ Petitions are vacated.
AR. Lakshmanan, J.
24. I had the privilege of perusing the judgment proposed by my learned Brother - Hon'ble Mr. Justice K.G.
Balakrishnan. While respectfully concurring with the conclusion arrived by the learned Judge, I would like to add the
following few paragraphs:

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25. The first petitioner is a Member of Parliament and the second petitioner is the Deputy Chief Minister of Bihar. The
above writ petition, ostensibly in public interest, has been filed by them for the following relief:
a. issue an appropriate writ, order or direction monitoring the conduct of the trials relating to the fodder scam case
proceeding against respondent Nos. 4 and 5 in the State of Bihar & State of Jharkhand;
b. issue an appropriate writ, order or direction directing the Director, CBI to reinstate the prosecutors who were
handling the cases in the Trial Court and the High Court and directing that no prosecutor or any CBI officer attached
with the investigation and the trial of these scam cases should be removed, harassed or victimized for discharging their
duties, without specific orders from this Hon'ble Court;
c. issue an appropriate writ, order or direction directing the Director, CBI to provide the logistics and ensure that it is
represented by at least one Inspector in each of the 7 courts by Special Judge, CBI in the State of Jharkhand which is
trying the fodder scam cases so that no adjournments are sought and granted;
d. issue an appropriate writ, order or direction canceling the bail granted to respondent Nos. 4 and 5
e. issue an appropriate writ, order or direction directing the respondent No. 1 and/or 3 to file an appeal against the order
passed by the Hon'ble Income Tax Appellate Tribunal
26. On our direction, the Registrar General of the Patna High Court was present in Court on 26.07.2006. He filed an
affidavit and also explained the procedure followed in the appointment of Shri Munni Lal Paswan as a special Judge to
try the disproportionate assets cases with reference to the records.
We heard Mr. Mukul Rohatgi and Mr. Kailas Vasudev learned senior counsel for the petitioners and Mr. Ram
Jethmalani, learned senior counsel assisted by Mr. P.H. Parekh and Mr. G.E. Vahanvati, learned Solicitor General and
Mr. Mohan Parasan, learned ASG for the respondents.
27. Mr. Mukul Rohatgi and Mr. Kailash Vasudev, learned senior counsel made elaborate submissions on the question of
maintainability of the writ petitions and also submitted that Mr. Munni LaL Paswan was promoted recently and posted
at Patna for disposing off the case filed against respondent Nos. 4 and 5 and that the said Munni Lal Paswan is not a
desirable person to be posted in the said post to conduct the case. He also requested that the Public Prosecutors who
were proving to be inconvenient to respondent Nos. 4 and 5 are being supplanted with chosen ones. Like that, Member
(Judicial) in the Income-tax Appellate Tribunal - Mr. R.K. Tyagi who had been hearing the appeal of respondent Nos. 4
and 5 was curiously sent on deputation and was replaced by Mr. Mohanarajan, a person who was on the verge of
retirement to head the Tribunal. Within 2 weeks, the matter was heard and allowed in favour of the assesses. He also
submitted that the case relating to disproportionate assets before the Special Judge, CBI is at the final stage of hearing.
The Director, CBI has started changing the prosecutors mid-way when the case was nearing completion and that the
public prosecutor who was conducting the cases from the very beginning has been replaced by Shri Om Shankar Singh,
a retired Deputy Superintendent of Delhi Police who has commenced law practice recently. It is also submitted that
respondent Nos. 4 and 5 are deliberately protracting the trial by taking unnecessary adjournments which, by itself, would
be a ground for cancellation of bail. He further submitted that by virtue of the new political equations between the party
in power in the State of Bihar and at the center, respondent No. 5 one of the main accused in the fodder scam now has
substantial administrative control and political say in the functioning of the Government of India and that the CBI and
the Central Board of Direct Taxes, respondent Nos. 2 and 3 have become a party in an effort to shield respondent Nos.
4 and 5. He continued to submit that this Court shall monitor the case since the accused are using state machinery to
block the judicial process and subvert the trial and dilatory tactics being adopted by the accused to delay the trial on one
pretext or the other. He also submitted that the prosecutors or investigators connected with the fodder scam matters in
the State of Bihar who have till date been discharging their functions in the trial Court should not be disturbed, replaced
or sidelined.
Mr. Rohatgi, in support of his contentions, invited our attention to the various documents, annexures, income-tax
records and the paper books.

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28. Appearing for respondent Nos. 4 and 5, Mr. Ram Jethmalani, learned senior counsel argued that the petition had
been filed only to achieve personal or political gain, no case had been made out for the cancellation of bail to Mr. Lalu
Prasad Yadav and his wife and this Court should not monitor the trial as it would send wrong signals. He also cited
many decisions with regard to the maintainability of the writ petitions at the instance of practicing politicians. He sought
dismissal of the writ petitions with exemplary costs.
29. Appearing for the CBI, learned Solicitor General G.E. Vahanwati denied point by point the allegations of the
petitioners made in their pleadings with reference to various documents and records and proved to our satisfaction that
the statements made by the petitioners are not true and correct and have been made with an ulterior motive. Learned
Solicitor General further submitted that there had been no interference by Mr. Lalu Prasad Yadav or his wife in any of
the matters whether in the appointment of Judges or in the change of the prosecutor or on the decision not to file an
appeal in the income-tax cases. The learned Solicitor General cited T.N. Godavarman Thirumulpad (98) v. Union of
India and Ors. MANU/SC/0596/2005 : AIR2005SC4256 (Hon. Y.K. Sabharwal, C.J., Arijit Pasayat and S.H. Kapadia,
JJ.) and submitted that howsoever genuine a case brought before the Court by a public interest litigant maybe, the Court
has to decline its examination at the behest of a person who, in fact, is not a public interest litigant and whose bonafides
and credentials are in doubt and that no trust can be placed by the Court on a mala fide applicant in public interest
litigation. Learned Solicitor General submitted now it is time to give a severe warning and sound alert since these are
basic issues which are required to be satisfied by every public interest litigant. He also cited paras 25 and 26 in support of
the contention that the writ petition is not maintainable at the instance of the political rivals.
30. Mr. Ram Jethmalani in regard to the maintainability of the writ petition cited the following decisions:
Janata Dal v. H.S. Chowdhary and Ors. MANU/SC/0532/1992 : 1993CriLJ600 .
It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have
a locus standi and can approach the court to wipe out the tears of the poor and needy, suffering from violation of their
fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration.
Similarly, a vexatious petition under the colour of PIL brought before the court for vindicating any personal grievance,
deserves rejection at the threshold.
Dattaraj Nathuji Thaware v. State of Maharashtra and Ors. MANU/SC/1060/2004 : AIR2005SC540 (Hon. Arijit
Pasayat and Hon. S.H. Kapadia, JJ) and invited our attention to para 4, 5, 9, 10, 12 and 14.
31. Ashok Kumar Pandey v. State of W.B. MANU/SC/0936/2003 : AIR2004SC280
12. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to
be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or
publicity-seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to
citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It
should be aimed at redressal of genuine public wrong or public injury and not publicity-oriented or founded on personal
vendetta. As indicated above, Court must be careful to see that a body of persons or a member of the public, who
approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other
oblique consideration. The Court must not allow its process to be abused for oblique considerations. Some persons with
vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper
motives. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies
deserve to be thrown out by rejection at the threshold/ and in appropriate cases, with exemplary costs.
32. S.P. Gupta v. Union of India and Anr. MANU/SC/0080/1981 : [1982]2SCR365 24
24. But we must be careful to see that the member of the public, who approaches the Court in cases of this kind, is
acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The
Court must not allow its process to be abused by politicians and Others to delay legitimate administrative action or to
gain a. political objective. Andre Rabies has warned that "political pressure groups who could not achieve their aims
through the administrative process" and we might add, through the political process, "may try to use the Courts to
further their aims". These are some of the dangers in public interest litigation which the Court has to be careful to avoid.

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It is also necessary for the Court to bear in mind that there is a vital distinction between locus standi and justiciability
and it is not every default on the part of the State or a public authority that is justiciable. The Court must take care to see
that it does not overstep the limits of its judicial function and trespass into areas which are reserved to the Executive and
the Legislature by the Constitution. It is a fascinating exercise for the Court to deal with public interest litigation because
it is a new jurisprudence which the Court is evolving, a jurisprudence which demands judicial statesmanship and high
creative ability. The frontiers of public law are expanding far and wide and new concepts and doctrines which will
change the complexion of the law and which were so far as embedded in the womb of the future, are beginning to be
born.
Mr. Rohatgi submitted that this Court should monitor the conduct of the trial relating to the fodder scam cases against
respondent Nos. 4 and 5.
33. Union of India and Ors. v. Sushil Kumar Modi and Ors. MANU/SC/0062/1998 : (1998)8SCC661
6. This position is so obvious that no discussion of the point is necessary. However, we may add that this position has
never been doubted in similar cases dealt with by this Court. It was made clear by this Court in the very first case,
namely Vineet Narain v. Union of India MANU/SC/0926/1996 : [1996]1SCR1053 that once a charge-sheet is filed in
the competent court after completion of the investigation, the process of monitoring by this Court for the purpose of
making the CBI and other investigative agencies concerned perform their function of investigating into the offences
concerned comes to an end; and thereafter it is only the court in which the charge-sheet is filed which is to deal with all
matters relating to the trial of the accused, including matters falling within the scope of Section 173(8) of the Code of
Criminal Procedure. We make this observation only to reiterate this clear position in law so that no doubts in any quarter
may survive. It is, therefore, clear that the impugned order of the High Court dealing primarily with this aspect cannot
be sustained.
(emphasis supplied)
It is thus clear from the above judgment that once a charge-sheet is filed in the competent Court after completion of the
investigation, the process of monitoring by this Court for the purpose of making the CBI and other investigative
agencies concerned perform their function of investigating into offences concerned comes to an end and thereafter, it is
only the Court in which the charge-sheet is filed which is to deal with all matters relating to the trial of the accused
including matters falling within the scope of Section 173(8).
We respectfully agree with the above view expressed by this Court. In our view, monitoring of pending trial is
subversion of criminal law as it stands to mean that the Court behind the back of the accused is entering into a dialogue
with the investigating agency. Therefore, there can be no monitoring, after the charge sheet is filed.
34. This Court issued a direction on 22.02.2005 to the President of the Income-tax Appellate Tribunal to submit a
detailed report in regard to the allegations made by the petitioners. Pursuant to the directions of this Court, the President
of ITAT filed a detailed report dated 09.03.2005. A perusal of which shows that there is not an iota of truth in the
allegation and all the aforesaid averments are completely baseless. As noticed earlier, certain allegations were made
against Mr. R.K. Tyagi and Mr. Mohanarajan whom, according to the petitioners, were due for retirement was appointed
to head the Tribunal. It was further stated that on 02.07.2004 Mr. R.K. Tyagi who had been hearing the appeal of
respondent Nos. 4 and 5 was sent on deputation for 2 weeks and was replaced by Mr. Mohanarajan, a person who was
on the verge of the retirement to head the Tribunal and that the said Mohanarajan picked up only the cases pertaining to
respondent Nos. 4 and 5 and heard the matter and allowed in favour of the assesses and that no appeal has been filed
against the said order.
35. On 22.02.2005, an order was passed by this Court directing the Union of India to produce before this Court the
proposal of CBI dated 20.07.2004 and the entire file including notations pertaining to the appointment of Mr. Uma
Shankar Sharma as prosecutor. The President, ITAT was directed to send to this Court all papers pertaining to
constitution of the Bench of Mr. Mohanarajan and Mr. M.K. Sarkar and also to sent copies/order sheets of ITA Nos.
233-237 of 2000 etc. etc. The President, ITAT was directed to state whether Mr. R.K. Tyagi was sent on deputation for
two weeks during the period the other two persons were appointed and if so why and on whose behalf he was sent on
deputation.

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36. On 09.03.2005, Mr. Vimal Gandhi, President, ITAT submitted his report. Flash figures of investigation, disposal and
dependency of appeals for the month of April, 2004 and the position as on 01.05.2004 with reference to the various
benches in the country was furnished (Annexure-2). It is seen from the report that Mr. D.K. Tyagi, JM, Patna had left
India without obtaining permission as required under the rules and he was accordingly issued a show cause notice to
explain about the acts of indiscipline. This was done in early June. Mr. Tyagi also explained the circumstances under
which he had gone abroad etc. The President acceded to his request on compassionate grounds and permitted him to
remain in Delhi without any T.A. D.A. for 1 month from June, 21 onwards. The President, ITAT, therefore, has stated
that it is not correct to suggest that Tyagi was shunted out of Patna by him.
37. Insofar as Mohanarajan is concerned, the President has explained the position with regard to Mohanarajan and M.K.
Sarkar. He said Mr. Mohanarajan joined the Tribunal as Judicial Member in November, 1995 and posted at Jabalpur,
Chennai, Patna and Bangalore and he served in Patna from 02.09.2002 onwards till he was transferred to Bangalore in
March, 2003. He is sober in nature and that he is to retire on 06.11.2009 and he had never sat with Mr. Sarkar earlier.
When Mr. Agarwal's inability to tour Patna was made known to the President in Bangalore, Mohanarajan's name came to
his mind as an appropriate person to replace Mr. D.K. Agrawal and he was accordingly directed to camp at Patna in
June, 2004 and that the camp was organized accordingly. Insofar as Mr. M.K. Sarkar is concerned, he before joining the
Appellate Tribunal Mr. Sarkar was asked managed to Patna and other Benches on camp till regular members were
available as pendency at Kolkata was also low. The details of tour of Sarkar to Patna in 2004 has also been furnished.
38. The learned Solicitor General then invited our attention to Annexure-7 filed along with the report of the President,
ITAT. Respondent No. 4 - Mr. Lalu Prasad, by his letter dated 15.10.2003, addressed a letter to the President, ITAT,
New Delhi requesting for transfer of appeals filed before Patna Bench of the Tribunal to Delhi Bench in his case. On
17.10.2003, the President made a note on the said letter to call for comments/objections, if any, from the
Department/Patna Bench by fax. Mr. Lalu Prasad has stated in the said letter that since he is elected as a Member of
Rajya Sabha and performed duties as a Member of Rajya Sabha he has to be present in Delhi and, therefore, the appeals
may be transferred from Patna to Delhi Bench. By annexure-8, the Patna Bench gave its response on 31.12.2003 stating
that the legal aspect of the matter was being examined and that a final report will follow soon. By annexure-9 dated
08.01.2004, the Directorate General of Income-tax Patna addressed a letter to Assistant Registrar, ITAT Patna Bench as
to whether constituting a special Bench for early disposal of the appeals of Shri Lalu Prasad. Annexure-9 was in reply to
the ITAT Patna Bench letter dated 11.11.2003 and during that time the present Government was not in power. By
Annexure-10 the DGIT by their letter dated 23.04.2004 stated that it would not be possible to agree to transfer the
appeals of Mr. Lalu Prasad from ITAT, Patna Bench to ITAT, Delhi Bench and it may be worthwhile to consider
constituting a special Bench fur early disposal of these appeals. It is seen from annexure-12 dated 11.03.2004 signed by
M.A. Bakshi, V.P. ITAT, Chandigarh Zone that it may not be necessary to constitute a special Bench for disposal of the
appeals relating to Mr. Lalu Prasad.
In regard to the prayer for cancellation of the bail at the instance of the petitioner, we are of the opinion that: the said
request cannot at all be countenanced. Our attention was drawn to order dated 14.07.2003 passed by this Court which
reads thus:
We have been extending bail from time to time for a period of six months in order to monitor the trial. In our view, it is
not now necessary to do so any further. We, therefore, order that the bail which has been granted by this Court will
continue for the duration of the case on the same terms and conditions. We clarify that it will be open to the C.B.I to
apply for cancellation of bail in accordance with law in this Court. Further, if it is found that the petitioner is deliberately
protracting the trial or taking unnecessary adjournments then that by itself would be a ground for cancellation of bail.
39. Mr. Rohatgi submitted that respondent Nos. 4 and 5 are interfering with the cause of justice so far as conduct of the
trial and IT proceedings are concerned and, therefore, the bail granted to them is liable to be cancelled. This submission
has no merits in view of the arguments advanced by learned Solicitor General inviting our attention to the various
documents and annexures etc. to the effect that the respondent Nos. 4 and 5 have never interfered with, the conduct of
trail or with the IT proceedings. It is stated that respondent Nos. 4 and 5 are deliberately protracting the trial by taking
unnecessary adjournments. Then that itself would be a ground for cancellation of bail. This argument has no substance.
It is a fact that the matter was adjourned at the instance of the defence on various occasions. Court itself has adjourned
the matter for various reasons. We, therefore, cannot hold that the delay is solely attributable to respondent Nos. 4 and 5
which, in our opinion, cannot be a ground for cancellation of bail when it is not proved that any of the bail conditions

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has been violated. The delay is attributable to both the prosecution and the defence and also to the Court. Therefore,
respondent Nos. 4 and 5 cannot be held responsible for the delay.
40. Mr. Rohatgi argued that Munni Lal Paswan should be changed from the present place and some other officer should
be posted there. Mr. Ram Jethmalani, at the time of hearing, explained to this Court as to how and under what
circumstances the earlier incumbent of the office - Mr. Yogendra Prasad was shifted at his own request and that how
Munni Lal Paswan was promoted recently and posted at Patna for the conduct of the matters. We summoned the
Registrar General of Patna High Court on 26.07.2006. The Registrar General Madhusudhan Singh has also filed an
affidavit in regard to the three queries raised by us. The Registrar General explained to this Court in regard to the
practice in the High Court of Patna and how the matter is placed before the Standing Committee and the remarks of the
inspecting Judges and the guard files which are maintained separately of each officers which were made available to the
Standing Committee. The said fact also finds mention in the decision dated 22.06.2005 of the Standing Committee. In
regard to query No. 3 the Registrar has submitted as follows:
That in regard to Query No. 3 of this Hon'ble Court as mentioned in the order dated 26.7.2006, I respectfully say and
submit that the remarks of the Hon'ble Inspecting Judge in case of Shri Jawahar Prasad Ratnesh was of the year 1985,
1986-87, 1988, 2001, 2003 and 2005 (and remarks recorded by P.O., Industrial Tribunal, Patna in 1998). In respect of
Shri Ram Niwas Prasad, the remarks recorded by the Hon'ble Inspecting Judge was of 1985, 1986, 1997 and 2002. As
regards Shri Munni Lal Paswan, the remarks recorded by the Hon'ble Inspecting Judge was of 1985 and 1990 and by
Vice-Chairman, Industrial Tribunal, Patna Bench in 1997.
We have perused the records submitted by the High Court in regard to the officers including Munni Lal Paswan. There
is absolutely no adverse entry against Munni Lal Paswan and that poor record if any is not the record of integrity and
that no gradation has been given to officers after 1997 onwards including Paswan.
41. We have perused the proceedings of the meetings of the Standing Committee held on 22.06.2005 in the chambers of
the Hon'ble Chief Justice which reads thus:
Proceedings of the meeting of the Standing Committee held on 22nd June, 2005 in the Chambers of the Hon'ble the
Chief Justice:
Agenda Decision To consider the matter regarding Having considered the relevant service Postings if three Special
Judges records of the officers concerned and at Patna for C.B.I. (Fodder Scam also taking into consideration the fact
Cases), C.B.I. (South Bihar) and that no allegation petition has been Vigilance Cases (Court No. 1) in received against Sri
Muni Lal Paswan, Place of S/Shri Yogendra Prasad, Additional District Judge, Saharsa. It Mungeshwar Sahoo and
Jitendra is resolved that let him (Sri Muni Lal Mohan Sharma, respectively (P.F. Paswan) be posted as Special Judge for
XXVII-5-98) C.B.I. (Fodder Scam Cases) at Patna. It is further resolved upon consideration of the relevant service
record's Of the officers concerned that Sri J.P. Ratnesh, Additional District Judge, Patna, be posted as Special Judge,
C.B.I. (South Bihar) and Sri Ram Niwas Prasad, Additional District Judge, Patna as Special Judge for Vigilance Case
(Court No. 1 ). In view of the urgency of the matter, the office is directed to take necessary steps for issue of notification
immediately. Sd/- Nagendra Rai, Actg, CJ. Sd/- I.P. Singh, J.A.D. 1 Sd/- R.N. Prasad, J.A.D. II Sd/- Barin Ghosh, J.
Sd/- M.L. Visa, J. Sd/- Rajendra Prasad, J.
It is thus seen from the above that all the relevant service records of the officers concerned including Munni Lal Paswan
was placed before the Standing Committee which took into consideration the fact that no allegation petition has been
received against Munni Lal Paswan, Addl. District Judge. It was resolved that Munni Lal Paswan be posted as Special
Judge, CBI Fodder scam cases at Patna. The Registrar General had also stated at the time of hearing that the resolution
of the Standing Committee was also placed before the Full Court which also approved the same.
42. Article 233 of the Constitution of India deals with subordinate Courts. The appointment of persons, posting and
promotion of District Judges in any State shall be made by the Governor of the State in consultation with the High
Court exercising jurisdiction in relation to such State. Likewise, under Article 235 the control over district courts and

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courts subordinate thereto including the posting and promotion of and the grant of leave to persons belonging to
judicial service of a State and holding any post inferior to the post of District Judge shall be vested in the High Court.
43. The appointment of lawyers is the prerogative of the Government and the prosecuting agency. The petitioners are
trying to find fault with every attempt with every steps taken. Cases like this the delay is inevitable. It is also settled law
that appointment of advocates, public prosecutors etc. is the prerogative of the government in power and court has no
role to play. In the above case, the Standing Committee has taken a decision to appoint Munni Lal Paswan and other
officers after scrutinizing the records, ACRs etc. in accordance with Article 233 and 235 of the Constitution of India
which is the prerogative right of the Standing Committee and the High Court and when a decision is taken it is not for
this Court to scrutinize the correctness of the decision that too at the instance of third parties.
44. In regard to the prayer of the petitioner to direct the Government of India to file the appeal in the income-tax
matters, we are of the opinion that the said prayer also cannot at all be countenanced, in this regard, Section 260A(1) and
(2)(a) may be referred to which reads as under:
260A. Appeal to High Court - (1) An appeal shall lie to the High Court from every order passed in appeal by the
Appellate Tribunal, if the High Court is satisfied that the case involves a substantial question of law.
(2) The Chief Commissioner or the Commissioner or an assessee aggrieved by any order passed by the Appellate
Tribunal may file an appeal to the High Court and such appeal under the sub-section shall be-
(a) filed within one hundred and twenty days from the date on which the order appealed against is received by the
assessee or the Chief Commissioner or Commissioner;
(b) ***
(c) ***
In this regard, counter affidavit filed on behalf of the Under Secretary to the Government of India, Ministry of Finance
may be usefully referred to. It is stated in the said counter affidavit that the matter has been fully considered and legal
opinion was sought by BCIT investigation, Patna and that the opinion of the learned ASG was received stating that
there is no substantial question of law for filing an appeal and that the consideration of this aspect had been done
property and independently and there have been no extraneous consideration.
45. This apart, another affidavit was filed by Mr. L.K. Sighvi, the Chief Commissioner of Income-tax (VIII), New Delhi
para 1
I was the Director General IT (Inv.), Patna during the relevant period when decision was taken regarding filing of
appeals pertaining to the ITAT orders in the cases of Smt. Rabri Devi and Shri. Lalu Prasad Yadav before the Hon'ble
High Court at Patna. Considering the facts and circumstances of the case and the fact that the present petition was
pending before this Hon'ble Court, I thought it fit to refer the matter to the CBDT for consideration and seeking
opinion from the Ministry of Law. The CBDT and the Ministry of Finance obtained the opinion of the Ministry of Law
to the effect that no substantial questions of law arose out of the judgments of the ITAT in the cases of Smt. Rabri Devi
and Shri Lalu Prasad Yadav for filing appeals before the Hon'ble High Court. Accordingly, instructions were issued by
me that appeals would not be filed in respect of these cases.
It is thus seen that the Government of India has taken into consideration the views of the Ministry of Law, Ministry of
Finance to the effect that no substantial questions of law arise out of the judgments of the ITAT in the case of
respondent Nos. 4 and 5 for filing appeals before the High Court and that instructions were issued that appeals would
not be filed in respect of those cases.
46. Certain allegations have been made against CBDT and the Public Prosecutors, Members of the Income-tax Tribunal
etc. None of them were made parties before us. Therefore, the allegations made against them are one-sided and cannot
be looked into at all. We cannot also say that all these authorities have acted in a mala fide manner.

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47. In our opinion, public interest litigation meant for the benefit of the lost and lonely and it is meant for the benefit of
those whose social backwardness is the reason for no access to the Court. We also say that PILs are not meant to
advance the political gain and also settle their scores under the guise of a public interest litigation and to fight a legal
battle. In our opinion, the liberty of an accused cannot be taken away except in accordance with the established
procedure of law under the Constitution criminal procedure and other cognate statutes. We are also of the opinion that
PIL is totally foreign to pending criminal proceedings. The records placed before us would only go to show that
respondent No. 4 had no hand in any of these matters whether in the appointment of judges or in the change of the
prosecutor or on the decision not to file an appeal in the income tax cases.
48. For the foregoing reasons, we hold that both the writ petitions have no merit and is liable to be dismissed and
accordingly we do so. In the circumstances, we order no costs. Before concluding, we say that the petitioners are waging
a political battle against respondent Nos. 4 and 5 through the medium of Public Interest Litigation. The venue for
political battle, in our opinion, can never be this Court by filing a writ petition under Article 32 of the Constitution of
India.
S.H. Kapadia, J.
49. I have had the privilege of reading the opinions of Brother Justice Balakrishnan and Brother Justice Lakshmanan, I
have to record my respectful dissent with the views expressed by my learned brothers.
50. In these writ petitions under Article 32 of the Constitution, filed to enforce Article 14 of the Constitution, following
three issues arise for determination:
(a) Whether the writ petitions were maintainable as Public Interest Litigation;
(b) whether there was failure of statutory and public duty on the part of the Revenue in not preferring an appeal to the
High Court under Section 260A of the Income Tax Act, 1961; and
(c) whether the procedure adopted at the time of posting Mr. Munni Lal Paswan, ADJ as Special Judge, CBI, Patna
(Fodder Scam Cases) on 22.06.2005, needs to be relocked by the Patna High Court.
(a) WHETHER THE WRIT PETITIONS WERE MAINTAINABLE AS PUBLIC INTEREST

LITIGATION:
51. BACKGROUND FACTS:
Large-scale defalcation of public funds, fraudulent transactions and falsification of accounts, of around Rs. 500 crores,
came to light in the Animal Husbandry Department of the State of Bihar. This scam took place during the period 1977
to 1996. A similar situation existed in the Education, Corporation and Fisheries Departments. By judgment dated
11.03.1996 delivered by the Division Bench of the Patna High Court in Writ Petition No. 459 of 1996 the High Court,
in exercise of its powers under Article 226 of the Constitution, took away the investigation from the State police and
entrusted it to CBI. The said decision of the Patna High Court was challenged by the State vide Civil Appeal Nos. 5177-
81 of 1996. By judgment dated 19.03.96, this Court observed that the exercise of the power under Article 226 in a public
interest litigation was not to give any advantage to a political party or group of people but it was done to investigate
corruption in public administration, misconduct by the bureaucracy, fabrication of official records and misappropriation
of public funds. Therefore, this Court refused to interfere with the impugned judgment of the Patna High Court [See:
State of Bihar and Anr. v. Ranchi Zila Samta Party and Anr. MANU/SC/0384/1996 : 1996CriLJ2168 .
52. In the case of Union of India and Ors. v. Sushil Kumar Modi and Ors. MANU/SC/0086/1997 : 1997CriLJ358
certain allegations were made against the then Director, CBI, in the context of investigations into the above fodder
scam. The relevant paragraphs 11 and 14 of the said judgment are quoted hereinbelow:
11. We deem it proper to emphasise that every officer of the CBI associated with the investigation has to function as a
member of a cohesive team which is engaged in the common pursuit of a fair, honest and complete investigation into

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the crimes alleged. It is needless to further emphasise that the exercise has to be performed objectively and fairly,
mindful of the fact that the majesty of law has to be upheld and the 'rule of law' preserved, which does not discriminate
between individuals on the basis of their status, position or power. The law treats everyone as equal before it and this
has to be kept in view constantly in every State action to avoid violation of the 'right to equality' guaranteed in Article 14
of the Constitution.
14. It appears necessary to add that the Court, in this proceeding, is concerned with ensuring proper and honest
performance of its duty by the CBI and not the merits of the accusations being investigated, which are to be determined
at the trial on the filing of the chargesheet in the competent court, according to the ordinary procedure prescribed by
law. Care must, therefore, be taken by the High Court to avoid making any observation which may be construed as the
expression of its opinion on merits relating to the accusation against any individual. Any such observation made on the
merits of the accusation so far by the High Court, including those in Para 8 of the impugned order are not to be treated
as final, or having the approval of this Court Such observations should not, in any manner influence the decision on
merits at the trial on the filing of the chargesheet The directions given by this Court in its aforesaid order dated March
19, 1996 have to be understood in this manner by all concerned, including the High Court.
53. PLEADINGS
On 31.08.2004 the present Writ Petition (Crl.) Nos. 197-198 of 2004 were filed for enforcement of Article 14 of the
Constitution. Briefly, it is alleged that the Union of India (respondent No. 1) and other respondents (including
respondent Nos. 4 and 5) are allegedly committing acts of misfeasance in relation to the corruption cases pending before
the Special Judge, CBI, Patna as well as in the appeals preferred by the accused before the Income Tax Appellate
Tribunal. Respondent No. 4 is Smt. Rabri Devi, former Chief Minister of Bihar and respondent No. 5 is Mr. Lalu
Prasad, former Chief Minister of Bihar. In the writ petitions it is alleged that trial judge as well as the Member (Judicial)
of the Income Tax Appellate Tribunal who are found to be inconvenient are being transferred and supplanted with the
chosen ones. That, even the judgment of the Income Tax Appellate Tribunal (for short, the Tribunal') allowing the
appeal in favour of the assessees for the assessment years 1986-87 to 1996-97, though involving substantial questions of
law, has not been challenged by the Revenue by filing appeals under Section 260A of the Income Tax Act, 1961 (for
short, 'the I.T. Act') in order to protect some of the respondents-accused.
54. Respondent Nos. 4 and 5 as well as Union of India have categorically denied the allegations made by the petitioners.
It is the case of the respondents that irresponsible statements have been made in the petitions without having any basis;
that, political battles were being fought in the name of public interest litigation (for short, 'PIL') by politicians and that
respondent Nos. 4 and 5 had no role to play either in the transfer of lawyers in the criminal case, in the transfer of the
trial judge or in the constitution of the Special Bench of the Tribunal. They have further submitted that they have no
role to play in Revenue Department not going in appeal to the High Court under Section 260A of the I.T. Act. It is
submitted that the Revenue Department took the opinion of Additional Solicitor General of India who has certified that
no substantial questions of law arise for determination by the High Court under Section 260A of the I.T. Act.
Accordingly, it is submitted by the respondents that the writ petitions deserve to be dismissed with heavy costs.
55. SUBMISSIONS
Mr. Ram Jethmalani, learned senior counsel appearing on behalf of respondent Nos. 4 and 5, raised the preliminary
objection stating that PIL has no role to play in pending criminal proceedings. He submitted that if the petitioner is a
politician and if it is found that the object is to win political battle then PIL should be dismissed with costs. He
submitted that in the present case the PIL is politically motivated; that, in the present petitions there is no breach of
Article 14 and, therefore, it deserves to be dismissed with strictures against the petitioners. Learned senior counsel
submitted that PIL is meant for the benefit of the lost and lonely who have no access to courts or the legal system.
Learned senior counsel submitted that when the provisions of the Constitution are violated and loss is caused to a group
of persons who are handicapped then PIL is maintainable, if it is shown that they have no access to legal system. It is
submitted that respondents 4 and 5 are the accused persons before the criminal court and the liberty cannot be taken
away except by the procedure established by law; that, the criminal procedure code requires that the guilt of the accused
must be determined by a special judge in the present case which is the court of exclusive jurisdiction and if anybody,
aggrieved by the decision of the special judge, is free to hold appeal. Learned senior counsel submitted that the
assessment orders passed by the Revenue Department under the I.T. Act cannot be used to prove holding of
disproportionate assets by respondent Nos. 4 and 5. He submitted that in the present case the CBI pressurized the
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assessing officer to pass assessment order against respondent Nos. 4 and 5. Learned senior counsel further alleged that
in some cases even the Commissioner of Income Tax (Appeals) was persuaded to make order of assessment against
respondent Nos. 4 and 5 and in such circumstances and even otherwise orders of assessment cannot form the basis of
trials dealing with accusation of disproportionate assets by respondent Nos. 4 and 5. Learned senior counsel submitted
that in fact a hare perusal of the decision of the Tribunal in the present case indicates although the appeal is allowed in
favour of the assessees the Tribunal has decided every point against the assessee and in the circumstances the
Department was right in not moving the High Court in appeal under Section 260A of the I.T. Act. Learned senior
counsel further urged that respondent Nos. 4 and 5, who are the accused in the criminal trial, should be allowed to
pursue their defence. Learned senior counsel stated that admittedly there was a scam and misappropriation of public
property but that should not give right to the petitioners to obstruct the course of justice or obstruct the rights given to
the accused under Criminal Procedure Code, Evidence Act and the Constitution.
56. Learned senior counsel submitted three propositions in the context of the parameters of the PIL. He submitted that
- firstly, every criminal trial has to proceed according to the procedure established by law and every deviation from that
procedure, even if by a judicial order could violate Article 21 of the Constitution; secondly, in every PIL the locus standi of
the petitioner should be examined at the threshold; and thirdly, the source of his information must be subjected to strict
scrutiny. Learned senior counsel submitted that if any of the three conditions are not fulfilled then PIL should be
dismissed. In this connection, learned senior counsel relied upon the judgments of this Court in support of his above
submissions.
57. In the case of Janata Dal v. H.S. Chowdhary and Ors. MANU/SC/0532/1992 : 1993CriLJ600 this Court observed
that violation of a fundamental right is the sine qua non of the exercise of the right conferred by Article 32; that, PIL is
part of the process of participatory justice and in a competition between courts and streets the rule of law must win and,
therefore, the rule of locus standi must be liberalized to meet the challenges of the times. This Court, further, noted the
judgment in A.R. Antulay v. Ramadas Sriniwas Nayak and Anr. MANU/SC/0082/1984 : 1984CriLJ647 in which it has
been observed that locus standi of the complainant is a concept foreign to criminal procedure jurisprudence except where
the statute creates an offence which provides for the eligibility of the complainant to set the criminal case in motion.
58. In para 92 of the said judgment the concept of PIL has been explained. Any member of the public having sufficient
interest can maintain an action for judicial redress for public injury arising from breach of duty or violation of the
Constitution. This is absolutely essential for maintaining the rule of law, furthering the cause of justice and achieving the
constitutional goals, subject to a caveat which states that the member of the public who approaches by way of PIL
should be acting bona fide and not for personal gain, private profit or political motivation.
59. In the case of Union of India v. Sushil Kumar Modi and Ors. MANU/SC/0062/1998 : (1998)8SCC661 this Court
has held that once a chargesheet is filed in the competent court after completion of investigation the process of
monitoring for the purposes of making the CBI and other investigating agencies to perform their function comes to an
end and, thereafter, it is only the court in which the chargesheet is filed has to deal with all matters relating to the trial of
the accused, including matters falling within Section 173(8) of Cr.P.C. Relying on this judgment, learned senior counsel
for respondent Nos. 4 and 5 stated that in the present case the chargesheet has been filed and, therefore, the process of
monitoring has ended. It is urged that since the chargesheet has been filed the criminal trial should be allowed to take its
own course without any further interference from any court outside the trial court.
60. In the case of Dattaraj Nathuji Thaware v. State of Maharashtra and Ors. MANU/SC/1060/2004 : AIR2005SC540
the Division Bench of this Court on facts found that the petitioner was a lawyer who had filed PIL. He was a
blackmailer. In the circumstances the PIL was dismissed with costs. It is in that light, that the Division Bench of the
Court speaking through Pasayat, J. stated the parameters of PIL. Learned senior counsel for respondent Nos. 4 and 5
has referred to para 4 of the said judgment in support of his contention that PIL is maintainable to help poor and needy
who have no access to the legal system. I quote hereinbelow para 4 of the said judgment.
4. When there is material to show that a petition styled as a public interest litigation is nothing but a camouflage to foster
personal disputes, the said petition is to be thrown out. Before we grapple with the issue involved in the present case, we
feel it necessary to consider the issue regarding public interest aspect. Public Interest Litigation which has now come to
occupy an important field in the administration of law should not be "publicity interest litigation" or "private interest
litigation" or "politics interest litigation" or the latest trend "paise income litigation". The High Court has found that the
case at hand belongs to the last category. If not properly regulated and abuse averted, it becomes also a tool in
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unscrupulous hands to release vendetta and wreck vengeance, as well. There must be real and genuine public interest
involved in the litigation and not merely an adventure of knight errant borne out of wishful thinking. It cannot also be
invoked by a person or a body of persons to further his or their personal causes or satisfy his or their personal grudge
and enmity. Courts of justice should not be all-owed to be polluted by unscrupulous litigants by resorting to the
extraordinary jurisdiction. A person acting bona fide and having sufficient interest in the proceeding of public interest
litigation will alone have a locus standi and can approach the Court to wipe out violation of fundamental rights and
genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique
consideration. These aspects were highlighted by this Court in The Janta Dal v. H.S. Chowdhary
MANU/SC/0532/1992 : 1993CriLJ600 and Kazi Lhendup Dorji v. Central Bureau of Investigation
MANU/SC/0989/1994 : (1992)ILLJ922SC . A writ petitioner who comes to the Court for relief in public interest must
come not only with clean hands like any other writ petitioner but also with a clean heart, clean mind and clean objective.
(See Ramjas Foundation v. Union of India MANU/SC/0117/1993 : AIR1993SC852 and K.R. Srinivas v. R.M.
Premchand MANU/SC/0874/1994 : (1994)6SCC620 .)
61. To the same effect is the ratio of the decision of the Division Bench of this Court in the case of Gurpal Singh v.
State of Punjab and Ors. MANU/SC/0381/2005 : AIR2005SC2755 . In the said judgment it has been held that PIL will
not lie in cases of personal and political rivalry. While laying down the parameters the Division Bench speaking through
Pasayat, J. observed that in the PIL nobody should be allowed to make wild and reckless allegations spoiling the
characters of others; that, PIL is not maintainable in cases of personal vendetta. However, in the said judgment it has
been held that the court can act if it is satisfied with the correctness or the nature of the information given by the
petitioner.
62. Mr. Goolamhusein E. Vahanvati, Learned Solicitor General of India, appearing for Union of India, adopted the
arguments advanced by Mr. Ram Jethmalani, learned senior counsel, on the preliminary issue. He, however, added that
in the present case reckless allegations have been made without any basis against important functionaries, judges and
authorities under the I.T. Act. He submitted that the petitioners cannot destroy the service careers of the government
officers without any reason on basis except for their own political rivalry with respondent No. 5. He submitted that there
is no violation of law or the Constitution, particularly, when Mr. Yogender Prasad, the earlier trial judge who had
extensively heard the matter, was promoted as District Judge. Learned Counsel further submitted that constitution of the
Special Bench by the President of the Tribunal was done in the circumstances spelt out in the various affidavits; that the
matter was required to be expeditiously heard which led to the constitution of the Special Bench; and that decision was
not arbitrary, as alleged. There is nothing on record to indicate that favoured judges/members were appointed and that
inconvenient judges/members were dispensed with to favour the accused in the present case.
63. Learned senior counsel relied upon the judgment of this Court in the case of T.N. Godavarman Thirumulpad (98) v.
Union of India and Ors. MANU/SC/0596/2005 : AIR2005SC4256 where this Court speaking through learned Chief
Justice of India has held vide para 26 as follows:
26. For the last few years, inflow of public interest litigation has increased manifold. Considerable judicial time is spent
in dealing with such cases. A person acting bona fide alone can approach the court in public interest. Such a remedy is
not open to an unscrupulous person who acts, in fact, for someone else. The liberal rule of locus standi exercised in
favour of bona fide public interest litigants has immensely helped the cause of justice. Such litigants have been
instrumental in drawing attention of this Court and High Courts in matters of utmost importance and in securing orders
and directions for many under-privileged such as, pavement dwellers, bonded labour, prisoners' conditions, children,
sexual harassment of girls and women, cases of communal riots, innocent killings, torture, long custody in prison
without trial or in the matters of environment, illegal stone quarries, illegal mining, pollution of air and water, clean fuel,
hazardous and polluting industries or preservation of forest as in the T.N. Godavarman Thirumulpad (I) v. Union of
India MANU/SC/0278/1997 : AIR1997SC1228 . While this Court has laid down a chain of notable decisions with all
emphasis at their command about the importance and significance of this newly developed doctrine of PIL, it has also
hastened to sound a red alert and a note of severe warning that courts should not allow their process to be abused by a
mere busybody or a meddlesome interloper or wayfarer or officious intervener without any interest or concern except
for personal gain or private profit or other oblique' consideration. (See Janata Dal v. H.S. Chowdhary and Ors.
MANU/SC/0532/1992 : 1993CriLJ600 ).
64. FINDINGS:

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At the outset, it needs to be noted that in this case we are concerned not with the merits of the allegations but with the
decision-making process, be it in the posting of Mr. Munni Lal Paswan, Special Judge, CBI, Patna or in the matter of the
Revenue Department not moving in appeal to the High Court under Section 260A of the I.T. Act despite there being
substantial questions of law arising from the impugned judgment of the Tribunal. It is submitted on behalf of the
petitioners that the present writ petitions should be seen in the context of the earlier two decisions of the Supreme Court
under which investigations were handed over to CBI as an amount of around Rs. 500 crores stands misappropriated in
the fodder scam. It is the case of the petitioners that the present case should be seen in the light of the directions given
by the Supreme Court in the cases of Ranchi Zila Samta Party (supra) and Sushil Kumar Modi (supra).
65. The present petitions are filed on the alleged acts of misfeasance. The test which one has to apply to decide the
maintainability of the PIL concerns sufficiency of the petitioner's interest. Under this test it is necessary to consider the
subject matter to which the PIL relates. It is wrong in law for the court to judge the applicant's interest without looking
at the subject matter of his complaint. If the petitioner shows failure of public duty, the court would be in error in
dismissing his PIL.
66. In the case of Inland Revenue Commissioners v. National Federation of Self-employed and Small Business Ltd.
reported in 1982 Appeal Cases 617, a declaration was sought that the Revenue had acted unlawfully in granting amnesty
to the trade union of casual workers and accordingly a writ of mandamus was sought to assess and collect income tax
from casual workers according to law. In the Divisional Court when the motion for judicial review came, the point of
locus standi was treated as a preliminary point. The Divisional Court refused the leave saying that the petitioner had no
power to bring such an action. The Court of Appeal by majority reversed the decision of the Divisional Court and made
a declaration that the applicants have sufficient interest to apply for judicial review. Upholding the decision of the
Division Court it was held by the House of Lords that the question of sufficient interest of the petitioner cannot be
considered in the abstract. It must be taken together with the legal and factual context. It was held that the management
of tax recovery falls within the domain of the Revenue but if that act of management is found to be based on exercise of
its authority for extraneous reasons, then judicial review would certainly lie. It was held that the Revenue Department
was incharge of assessment and collection of taxes for the welfare of the State; that, it was responsible for good
management under the statute; that, if it was found that the Board was proposing to exercise its authority or if the Board
was refraining itself from exercising its power not for good reasons of good management but for some extraneous or
ulterior reasons then that action or inaction by the Board would be ultra vires and such a matter would be a proper
matter for judicial review. In this respect the following observation made by the House of Lords at pages 636-637 is
quoted hereinbelow:
It is, in my view, very much to be regretted that a case of such importance to the development of English public law
under this new procedure should have come before this House in the form that it does as a result of what my noble and
learned friend, Lord Wilberforce, has described as the unfortunate course that was taken in the courts below when, leave
to apply for judicial review having been previously granted ex parte, the application itself came on for hearing. This has
had the result of deflecting the Divisional Court and the Court of Appeal from giving consideration to the questions (1)
what was the public duty of the Board of Inland Revenue of which it was alleged to be in breach, and (2) what was the
nature of the breaches of that duty that were relied upon by the federation. Because of this, the judgment of the Court of
Appeal, against which appeal to your Lordships' House is brought, takes the form of an interlocutory judgment declaring
that the federation "have a sufficient interest to apply for judicial review herein.
As my noble and learned friend has pointed out, these two omitted questions need to be answered in the instant case
before it is possible to say whether the federation have "a sufficient interest in the matter to which the application
relates," since, until they are answered, that matter cannot be identified. This is likely also to be the case in most
applications for judicial review that are not on the face of them frivolous or vexatious. Your Lordships have accordingly
heard full argument on both these questions.
As respects the statutory powers and duties of the Board of Inland Revenue, these are described and dealt with in several
of your Lordships' speeches. It would be wearisome if I were to repeat what already has been, and later will be, better
said by others. All that. I need say here is that the board are charged by statute with the care, management and collection
on behalf of the Crown of Income tax, corporation tax and capital gains tax. In the exercise of these functions the board
have a wide managerial discretion as to the best means of obtaining for the national exchequer from the taxes committed
to their charge, the highest net return that is practicable having regard to the staff available to them and the cost of
collection. The board and the inspectors and collectors who act under their directions are under a statutory duty of

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confidentiality with respect to information about individual taxpayers' affairs that has been obtained in the course of
their duties in making assessments and collecting the taxes; and this imposes a limitation on their managerial discretion. I
do not doubt, however, and I do not understand any of your Lordships to doubt, that if it were established that the
board were proposing to exercise or to refrain from exercising its powers not for reasons of "good management" but for
some extraneous or ulterior reason, that action or inaction of the board would be ultra vires and would be a proper
matter for judicial review if it were brought to the attention of the court by an applicant with "a sufficient interest" in
having the board compelled to observe the law.
(emphasis supplied)
Applying the above test we have to ascertain in the present case whether the decision of the Government in not
preferring the appeal to the High Court under Section 260A of the I.T. Act constituted inaction on the part of the
Department. This question needs to be answered not in an abstract but having regard to position in law and having
regard to the facts of the present case.
(b) WHETHER THERE WAS FAILURE OF STATUTORY AND PUBLIC DUTY ON THE PART OF
THE REVENUE IN NOT PREFERRING AN APPEAL TO THE HIGH COURT UNDER SECTION
260A OF THE INCOME TAX ACT. 1961:
The facts of the case of the assessee, Smt. Rabri Devi, are as follows: On 14.10.1996 the assessee filed voluntary returns
for assessment years 1995-96 and 1996-97. On 14.11.1996 she filed voluntary returns for assessment years 1986-87 to
1994-95 declaring various incomes which had escaped assessment as she had not filed her returns earlier. The assessee
also applied for waiver of interest and penalty under Section 273A of the I.T. Act. In the voluntary returns, the assessee
disclosed income derived from dairy farming, agriculture and rent from house property. Upon receipt of returns for the
assessment years 1995-96 and 1996-97 the Assistant Commissioner of Income Tax issued notice of defecting returns
under Section 139 of the I.T. Act in which it was alleged that regular books of accounts were not maintained; that, return
was not accompanied by a statement indicating the amount of turn-over, gross receipts, gross profits and net profits
from business/profession. The assessee also received notices under Section 148 of the I.T. Act for the period 1986-87 to
1994-95. The Assessing Officer recorded the reasons for reopening the assessment for each of the above years. For
example, the reasons for reopening the assessment for the year 1986-87 are as follows:
A notice Under Section 131A of the I.T. Act' 61 was issued to the husband of the assessee, asking him to furnish, among
other things, details of income of other family members and details of assets owned by such family members. In reply to
the said notice the assessee' husband submitted that the assessee had been deriving k rental income from house property
at Sheikhoura since 1983-84 and from dairy farms since 1975. Subsequently, the assessee on 25.10.96 filed details of her
immovable and movable properties before the ADIT (Inv.), Patna. From a perusal of this, it is noticed that the assessee
has made substantial investments in residential house at Sheikhoura, in agricultural land at Saran and Patna and land at
Danapur, Patna. It is also noticed that she has made substantial investments in FDs, Kisan Vikas Patras and National
Savings Certificates, besides having a number of bank a/cs. The assessee has also contributed to the construction of her
husband's house property at Phulwari.
Despite having made such large investments, the assessee has never filed Income-tax returns, nor has she be assessed to
Income-tax in past Recently, the assessee had filed a petition Under Section 273A of the I.T. Act' 61 before the CIT,
Patna. Pursuant to this petition, she had also filed a disclosure of income Rs. 70,000 for the A/Y in question in order to
explain the capital required for the investment that she has made.
All these information in our possession give us reason to believe that at the very least a sum of Rs. 70,000 has escaped
assessment for the A/Y 1986-87. Owing to the failure of the assessee to file return within stipulated time limit and to
disclose material facts relevant to have assessment at the appropriate time.
As more than four years from end of the assessment year have lapsed, approval is solicited from DCIT, Range-1, Patna
to issue notice Under Section 148 of the I.T. Act' 61. It is clarified that notice Under Section 148 of the I.T. Act is
issuable as income escaping assessment exceeds the amount stipulated in Section 149(1)(b).

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Sd/- Nikhil Choudhary 20.11.96

Asst Commissioner of Income-tax,
Spl. Inv. Circle-1, Patna.
I need not go into further details regarding the alleged undisclosed income for each assessment year. Suffice it to state
that additions have been made by the Department to the income of the assessee under various orders passed by the
Assessing Officer and the Commissioner of Income Tax (Appeals). These orders were challenged by the assessee before
the Tribunal.
67. By the impugned judgment the appeals filed by the assessee were allowed by the Tribunal. While allowing the appeal
of the assessee the Tribunal held that the case involved highly intricate issues; that, these issues were extremely difficult
to understand; that, but for the assistance of the learned advocates on both sides it was difficult to adjudicate such
disputes. At the same time the Tribunal without any basis castigated the officers of the Department including the
Commissioner (Appeals) saying that rampant additions were made to destroy the case of the assessees and to destroy the
political career of respondent No. 5 (See: para 40 of the judgment of the Tribunal). Similarly, the Tribunal has castigated
the higher officers of the Department saying that they were biased and that they had acted at the behest of the center in
clubbing the income of respondent No. 4 with that of respondent No. 5 who was going through political crisis (See: para
54 of the said judgment)
68. There is no basis given in the impugned decision of the Tribunal for making such strong observations against the
officers of the Revenue. Although the High Court under Section 260A of the I.T. Act would not have enquired into the
sufficiency of materials or substituted its judgment for that of the Tribunal in regard to facts, nevertheless, if the
conclusion drawn by the Tribunal is without any basis or based on irrelevant considerations then the High Court was
required to interfere under Section 260A.
PIL is not maintainable to probe or enquire into the returns of another taxpayer except in special circumstances. It is the
ratio of the decision of House of Lords in the case of National Federation of Self-employed (supra). However, when
scams take place, accusation of disproportionate assets are required to be looked into.
69. In the case of M.C. Mehta v. Union of India and Ors. (Taj Trapezium Matter) MANU/SC/0733/2003 :
(2003)8SCC696 the Division Bench of this Court not only directed CBI to investigate the cases against the bureaucrats
but also to enquire the outflow of Rs. 17 crores released by the State of U.P. in respect of project undertaken by NPCC.
In that matter the income tax returns of the former Chief Minister and other officials were ordered to be collected by
this Court. They were directed to be collected from various income tax authorities. The point to be noted is that the
source of the funds plays a crucial role in investigations by CBI in matters involving misappropriation of public funds.
Departments have to work in tandem. The evidentiary value of the collected material in the criminal trial is a matter
different from the collection of information by the officers of the Revenue Department. In the present case officers of
the Revenue have been condemned by the aforesaid judgment of the Tribunal. Comments have been made without any
basis and yet till today appeals have not been filed by the government under Section 260A of the I.T. Act. As stated
above, even the Tribunal has observed in its judgment that complicated legal issues were involved in the matter; that,
even the members of the Tribunal found it very difficult to understand those issues, particularly, matters involving
interpretation of Sections 131, 131(1A), 273A and 147/148 of the I.T. Act. If the issues were so difficult for the
members to understand, one fails to appreciate why high-ranking officers of the Department were castigated by the
Tribunal. This Court has noticed in number of cases that even an innocuous statement of the tribunal against the
Revenue Officers is challenged before the higher courts on the ground that such observations are aspersions against the
officers who have performed their duty and that they need to be expunged. Surprisingly in this particular case till today
no such appeal has been filed under Section 260A of the I.T. Act. There is one more reason which is required to be
mentioned. The judgment of the jurisdictional tribunal on the scope and interpretation of the above sections which the
Tribunal itself says involve complex legal issues, is binding on assessing officers and the appellate authority within that
jurisdiction. If so, one fails to understand why the Department has not moved in appeal under Section 260A of the I.T.
Act. In the circumstances of this case, Union of India should apply its mind afresh and take its decision keeping in mind
the factors referred to hereinabove.
70. Before concluding, it may be noted that arguments have been vehemently advanced on behalf of respondent No. 1
saying that these petitions need to be dismissed as the petitioners have made irresponsible statements against judicial
officers and members of the Tribunal whose service records are sought to be tarnished. Applying the same yardstick one
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fails to understand as to why the Revenue has not moved in appeal even when its own higher officers are branded as
biased in deciding matters against respondent Nos. 4 and 5. Their service records are as important as the service records
of members of the trial court or the judicial officers.
(c) WHETHER THE PROCEDURE ADOPTED AT THE TIME OF POSTING MR. MUNNI LAL
PASWAN, ADJ AS SPECIAL JUDGE. CBI. PATNA (FODDER SCAM CASES) ON 22.06.2005, NEEDS TO
BE RELOOKED BY THE PATNA HIGH COURT:
Institutional autonomy of the High Court on its administrative side under Article 233 and Article 235 is a well-known
concept. It is based on public trust and confidence. Existence of the power, as a concept, is different from exercise of
power. Promotions and posting of judicial officers fall within its domain on its administrative side. At the same time it is
important to note that choice of the candidate falls in the domain of public law and, therefore, that choice has to be
exercised on some standard, failing which judicial review steps in. Standards of evaluation in matters of promotion and
posting have to be uniformly applied otherwise arbitrariness comes in. Integration of the evaluation process has to be
maintained. If different standards or no standards are applied it breaks the integrity of the process which brings in
discrimination and arbitrariness which violates Article 14 and therefore judicial review.
In the present case we are required to see whether the standards applied to evaluate Mr. J.P. Ratnesh and Mr. Ram
Niwas Prasad, trial judges, appointed as Special Judges vide Minutes of the meeting of the Standing Committee dated
22.06.2005 were equally applied while posting Mr. Munni Lal Paswan as Special Judge, CBI, Patna (fodder scam cases)
71. By order dated 26.10.2005 this Court directed the Registrar General, Patna High Court, to forward this Court A.C.Rs
recorded by the Inspecting Judges of the High Court in the case of Mr. Munni Lal Paswan. In reply the Registrar
General has stated as follows:
The A.C.Rs, recorded by the Hon'ble Inspecting Judges in the years 1985, 1990 and by the Chairman of CAT in 1997,
have been placed before the Supreme Court. Besides them no ACRs of Sri Munni Lal Paswan have ever been recorded
by the Hon'ble Inspecting Judges. The A.C.Rs of Additional District and Sessions Judges are recorded by the Hon'ble
Inspecting Judges.
(emphasis supplied)
Mr. Munni Lal Paswan was promoted to the post of ADJ on 17th June, 2003. Therefore, when Mr. Paswan was
promoted as A.D.J. there was no categorization available.
72. In the report submitted by the Registrar General to this Court on 18.12.2005 pursuant to our order dated 26.10.2005,
the Registrar General has forwarded the consolidated statement showing the Outturn of the work done by Mr. Paswan
during the period 1998, 1999, 2000, 2001, 2002, 2003, 2004 and 2005 (partly). This statement refers to various
parameters like disposal, remarks of P.O., remark of D.J. etc. as approved by the court. At this stage, I do not wish to
comment about the remarks mentioned therein. These remarks have been approved by the District Judge and by the
Courts. These remarks are heavily weighed against Mr. Paswan. It is not clear whether these remarks were ever noticed
by the Committee and if not they need to be relocked by the High Court.
73. One more aspect needs to be stressed. There is a prescribed form in which the C.Rs are recorded. That form
indicates various parameters, namely, knowledge of law, whether the officer is hardworking, the rating to be given in
respect of the judgments, namely, A+(outstanding), A(very good), B+(good), B(satisfactory). The point to be noted is
that apart from honesty and integrity there are other parameters to be fulfilled by the judicial officers and that is where
the disposals, ability and all other relevant factors come.
74. On 26th July, 2006 this Court put up the following three questions in the form of order to the Registrar General of
the Patna High Court:
1. Is it the practice in the High Court of Patna to prepare gradation/ remarks of the Judicial Officers by the Inspecting
Judges?

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2. As regards the three officers, including Shri M.L. Paswan, who were appointed as Special Judges on 22.6.2005 by the
Standing Committee of the High Court, whether any remarks/gradation expressed by the Inspecting Judges were
available to the Standing Committee?
3. Whether the gradation/remarks of the Inspecting Judges were made as regards these three officers?
75. In reply, the Registrar General of the Patna High Court stated as follows in paras 2 to 4:
2. That in regard to Query No. 1 of this Hon'ble Court as mentioned in the Order dated 26.7.2006, I respectfully say and
submit that there is a practice in the High Court of Patna to record remarks of Judicial Officers by the Hon'ble
Inspecting Judges of the concerned Judgeships which is known as Annual Confidential Remarks. The Annual
Confidential remarks recorded by the Hon'ble Inspecting Judges which includes knowledge of law, integrity, behavior
with Bar, general reputation, industriousness, efficiency, behavior towards superiors and subordinate colleagues and
categorization made by the Hon'ble Inspecting Judges and net result categorization is to be placed before the Standing
Committee where the gradation is given to the Officer by the Hon'ble Standing Committee.
submit that the 3 Officers, namely, Shri Jawahar Prasad Ratnesh, Shri Ram Niwas Prasad and Shri Munni Lal Paswan
who were appointed as Special Judge on 22.6.2005 by the Standing Committee, the remarks of the Hon'ble Inspecting
Judges as maintained in the Guard Files which are maintained separately of each officers, were available to the Hon'ble
Standing Committee. The said fact also finds mention in the decision dated 22.6.2005 of the Hon'ble Standing
Committee.
submit that the remarks of the Hon'ble Inspecting Judge in case of Mr. Jawahar Prasad Ratnesh was of the year 1985,
1986-87, 1988, 2001, 2003 and 2005 (And remarks recorded by P.O., Industrial Tribunal, Patna in 1998). In respect of
Shri Ram Niwas Prasad, the remarks recorded by the Hon'ble Inspecting Judge was of 1985, 1986, 1997 and 2002. As
regards Shri Munni Lal Paswan, the remarks recorded by the Hon'ble Inspecting Judge was of 1985 and 1990 and by
Vice-Chairman, Industrial Tribunal, Patna Bench in 1997.
(emphasis supplied)
Reading para 4 it is clear that the remarks of Inspecting Judge, in the case of Mr. J.P. Ratnesh, were duly updated when
they were placed before the Standing Committee of the High Court In respect of Mr. Ram Niwas Prasad the remarks
recorded by the Inspecting Judge for the years 1985, 1986, 1997 and 2002 were updated and placed before the Standing
Committee of the High Court. However, in case of Mr. Munni Lal Paswan the remarks of the Inspecting Judge duly
recorded are only of 1985 and 1990. Mr. Munni Lal Paswan was promoted as A.D.J. on 17.06.2003. He was posted as
Special Judge on 22.06.2005. Therefore, it is clear that there is no gradation/categorization of the confidential reports of
Mr. Munni Lal Paswan by the Inspecting Judge of the High Court particularly after becoming A.D.J.
76. In the case of High Court of Punjab & Haryana, through Registrar General v. Ishwar Chand Jain and Anr.
MANU/SC/0299/1999 : [1999]2SCR834 this Court has held as follows:
32. Since late this Court is watching the specter of either judicial officers or the High Courts coming to this Court when
there is an order prematurely retiring a judicial officer. Under Article 235 of the Constitution the High Court exercises
complete control over subordinate courts which include District Courts. Inspection of the subordinate courts is one of
the most important functions which the High Court performs for control over the subordinate courts. The object of
such inspection is for the purpose of assessment of the work performed by the Subordinate Judge. his capability,
integrity and competency. Since Judges are human beings and also prone to all the human failings inspection provides an
opportunity for pointing out mistakes so that they are avoided in future and deficiencies, if any, in the working of the
subordinate court, remedied. Inspection should act as a catalyst in inspiring Subordinate Judges to give the best results.
They should feel a sense of achievement. They need encouragement. They work under great stress and man the courts
while working under great discomfort and hardship. A satisfactory judicial system depends largely on the satisfactory
functioning of courts at the grass-roots level. Remarks recorded by the Inspecting Judge are normally endorsed by the
Full Court and become part of the annual confidential reports and are foundations on which the career of a judicial

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officer is made or marred. Inspection of a subordinate court is thus of vital importance. It has to be both effective and
productive. It can be so only if it is well regulated and is workman-like. Inspection of subordinate courts is not a one-day
or an hour or a few minutes' affair. It has to go on all the year round by monitoring the work of the court by the
Inspecting Judge. A casual inspection can hardly be beneficial to a judicial system. It does more harm than good. As
noticed in the case of Registrar, High Court of Madras v. K. Rajiah MANU/SC/0411/1988 : AIR1988SC1388 there could
be ill-conceived or motivated complaints. Rumor mongering is to be avoided at all costs as it seriously jeopardizes the
efficient working of the subordinate courts.
33. Time has come that a proper and uniform system of inspection of subordinate courts should be devised by the High
Courts. In fact the whole system of inspection needs rationalization. There should be some scope of self-assessment by
the officer concerned. We are informed that the First National Judicial Pay Commission is also looking into the matter.
This subject, however, can be well considered in a Chief Justices' Conference as the High Court itself can devise an
effective system of inspection of the subordinate courts. The Registrar General shall place a copy of this judgment
before the Hon'ble Chief Justice of India for him to consider if the method of inspection of subordinate courts could be
a matter of the agenda for the Chief Justices' Conference.
(emphasis supplied)
The above judgment emphasizes the importance of the remarks given by the Inspecting Judge. The object of Inspection
is to assess the work performed, capability, competency besides integrity of the candidate. Those
gradations/categorizations given by Inspecting Judges are required to be placed before the Full Court. In the present
case, that exercise is done for two out of three judicial officers when they were posted. However, it appears from the
affidavit of the Registrar General that no gradation/categorization has been done after 1990 by the Inspecting Judge vis-
a-vis the judgments of Mr. Munni Lal Paswan.
It is important to bear in mind that in the matter of economic scams be it security transactions or fodder scams or Taj
corridor it is the economic interest of the country which is at stake. These cases are highly complicated in which
complicated questions are involved and, therefore, posting plays a vital role.
77. In the circumstances, it seems that the procedure followed by the High Court in the meeting on 22.06.05 has lost
sight of the above criteria. In the circumstances, a request is being made to the Chief Justice of the Patna High Court to
convene an urgent meeting of Administrative Judges and complete the exercise of giving appropriate
gradation/categorization after looking at the judgments and orders delivered by the concerned judge, Mr. Paswan. I may
make it clear that this is just a request to the High Court and not a direction so that the evaluation standards are
commonly applied to all the three candidates.
78. Before concluding it may be pointed out that this decision is confined strictly to the decision-making process and it is
not concerned with the merits of the allegations made in the petitions. The allegations made in the petitions are not only
against the accused, they are also directed against number of functionaries. It is, therefore, made clear that this decision
is only to rectify the procedure of decision-making at the High Court level and at the Revenue level so that in future
such anomalies do not arise.
79. To sum up, the Chief Justice of the Patna High Court is requested to convene a meeting of Administrative Judges
and have a fresh look at the evaluation in the case of posting of Sri Paswan as Special Judge for C.B.I. (Fodder Scam
Cases) at Patna, vide Minutes of Meeting dated 22.06.2005. At the same time, Union of India is directed to reconsider
approaching the High Court against the decision of the Tribunal dated 2.7.2004 under Section 260A of the Income Tax
Act, 1961 in the light of what is stated above.
80. In the end it may be stated that true value of a decision lies in its propriety and not in the decision being right or
wrong. Writ Petition (Crl.) Nos. 197-198 of 2004 are accordingly allowed to the extent indicated above.

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MANU/SC/1021/2010
Equivalent Citation: AIR2011SC312, (2011)1SCC694, (2011)1SCC(Cri)514
Criminal Appeal No. 2271 of 2010 (Arising out of SLP (Crl.) No. 7615 of 2009)
Appellants: Siddharam Satlingappa Mhetre

Vs.
Respondent: State of Maharashtra and Ors.
Dalveer Bhandari and K.S. Panicker Radhakrishnan, JJ.
JUDGMENT
Dalveer Bhandari, J.
1. Leave granted.
2. This appeal involves issues of great public importance pertaining to the importance of individual's personal liberty and
the society's interest.
3. The society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the State.
The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of
individual liberty and the interest of the society. The law of bails dovetails two conflicting interests namely, on the one
hand, the requirements of shielding the society from the hazards of those committing crimes and potentiality of
repeating the same crime while on bail and on the other hand absolute adherence of the fundamental principle of
criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of
individual liberty.
4. Brief facts which are necessary to dispose of this appeal are recapitulated as under:
The Appellant, who belongs to the Indian National Congress party (for short 'Congress party') is the alleged accused in
this case. The case of the prosecution, as disclosed in the First Information Report (for short 'FIR'), is that Sidramappa
Patil was contesting election of the State assembly on behalf of the Bhartiya Janata Party (for short 'BJP'). In the FIR, it
is incorporated that Baburao Patil, Prakash Patil, Mahadev Patil, Mallikarjun Patil, Apparao Patil, Yeshwant Patil were
supporters of the Congress and so also the supporters of the Appellant Siddharam Mhetre and opposed to the BJP
candidate.
5. On 26.9.2009, around 6.00 p.m. in the evening, Sidramappa Patil of BJP came to the village to meet his party workers.
At that juncture, Shrimant Ishwarappa Kore, Bhimashankar Ishwarappa Kore, Kallapa Gaddi, Sangappa Gaddi, Gafur
Patil, Layappa Gaddi, Mahadev Kore, Suresh Gaddi, Suresh Zhalaki, Ankalgi, Sarpanch of village Shivmurti Vijapure
met Sidramappa Patil and thereafter went to worship and pray at Layavva Devi's temple. After worshipping the Goddess
when they came out to the assembly hall of the temple, these aforementioned political opponents namely, Baburao Patil,
Prakash Patil, Gurunath Patil, Shrishail Patil, Mahadev Patil, Mallikarjun Patil, Annarao @ Pintu Patil, Hanumant Patil,
Tammarao Bassappa Patil, Apparao Patil, Mallaya Swami, Sidhappa Patil, Shankar Mhetre, Usman Sheikh, Jagdev Patil,
Omsiddha Pujari, Panchappa Patil, Mahesh Hattargi, Siddhappa Birajdar, Santosh Arwat, Sangayya Swami, Anandappa
Birajdar, Sharanappa Birajdar, Shailesh Chougule, Ravi Patil, Amrutling Koshti, Ramesh Patil and Chandrakant Hattargi
suddenly came rushing in their direction and loudly shouted, "why have you come to our village? Have you come here to
oppose our Mhetre Saheb? They asked them to go away and shouted Mhetre Saheb Ki Jai.
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6. Baburao Patil and Prakash Patil from the aforementioned group fired from their pistols in order to kill Sidramappa
Patil and the other workers of the BJP. Bhima Shankar Kore was hit by the bullet on his head and died on the spot.
Sangappa Gaddi, Shivmurti Vjapure, Jagdev Patil, Layappa Patil, Tammaro Patil were also assaulted. It is further
mentioned in the FIR that about eight days ago, the Appellant Siddharam Mhetre and his brother Shankar Mhetre had
gone to the village and talked to the abovementioned party workers and told them that, "if anybody says anything to you,
then you tell me. I will send my men within five minutes. You beat anybody. Do whatever."
7. According to the prosecution, the Appellant along with his brother instigated their party workers which led to killing
of Bhima Shanker Kora. It may be relevant to mention that the alleged incident took place after eight days of the alleged
incident of instigation.
8. The law relating to bail is contained in Sections 436 to 450 of chapter XXXIII of the Code of Criminal Procedure,
1973. Section 436 deals with situation, in what kind of cases bail should be granted. Section 436 deals with the situation
when bail may be granted in case of a bailable offence. Section 439 deals with the special powers of the High Court or
the Court of Sessions regarding grant of bail. Under Sections 437 and 439 bail is granted when the accused or the detenu
is in jail or under detention.
9. The provision of anticipatory bail was introduced for the first time in the Code of Criminal Procedure in 1973.
10. Section 438 of the Code of Criminal Procedure, 1973 reads as under:
438. Direction for grant of bail to person apprehending arrest.- (1) Where any person has reason to believe that he may
be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of
Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may,
after taking into consideration, inter alia, the following factors, namely:
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on
conviction by a Court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so
arrested,
either reject the application forthwith or issue an interim order for the grant of anticipatory bail:
Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order
under this Sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-
charge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such
application.
(1-A) Where the Court grants an interim order under Sub-section (1), it shall forthwith cause a notice being not less than
seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of
Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be
finally heard by the Court.
(1-B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the
application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court
considers such presence necessary in the interest of justice.
(2) When the High Court or the Court of Session makes a direction under Sub-section (1), it may include such
conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including -
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(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly,- make any inducement, threat or promise to any person
acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police
officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under Sub-section (3) of Section 437, as if the bail were granted under that
section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation,
and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be
released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first
instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-
section (1).
Why was the provision of anticipatory bail introduced? -Historical perspective
11. The Code of Criminal Procedure, 1898 did not contain any specific provision of anticipatory bail. Under the old
Code, there was a sharp difference of opinion amongst the various High Courts on the question as to whether the courts
had an inherent power to pass an order of bail in anticipation of arrest, the preponderance of view being that it did not
have such power.
12. The Law Commission of India, in its 41st Report dated September 24, 1969 pointed out the necessity of introducing
a provision in the Code of Criminal Procedure enabling the High Court and the Court of Sessions to grant "anticipatory
bail". It observed in para 39.9 of its report (Volume I) and the same is set out as under:
The suggestion for directing the release of a person on bail prior to his arrest (commonly known as "anticipatory bail")
was carefully considered by us. Though there is a conflict of judicial opinion about the power of a court to grant
anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The
necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in
false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In
recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false
cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or
otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain
in prison for some days and then apply for bail.
The Law commission recommended acceptance of the suggestion.
13. The Law Commission in para 31 of its 48th Report (July, 1972) made the following comments on the aforesaid
clause:
The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the
recommendation made by the previous Commission. We agree that this would be a useful addition, though we must add
that it is in very exceptional cases that such a power should be exercised.
petitioners, the final order should be made only after notice to the Public Prosecutor. The initial order should only be an
interim one. Further, the relevant section should make it clear that the direction can be issued only for reasons to be
recorded, and if the court is satisfied that such a direction is necessary in the interests of justice.
It will also be convenient to provide that notice of the interim order as well as of the final orders will be given to the
Superintendent of Police forthwith.

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14. Police custody is an inevitable concomitant of arrest for non-bailable offences. The concept of anticipatory bail is
that a person who apprehends his arrest in a non-bailable case can apply for grant of bail to the Court of Sessions or to
the High Court before the arrest.
Scope and ambit of Section 438 Code of Criminal Procedure
15. It is apparent from the Statement of Objects and Reasons for introducing Section 438 in the Code of Criminal
Procedure, 1973 that it was felt imperative to evolve a device by which an alleged accused is not compelled to face
ignominy and disgrace at the instance of influential people who try to implicate their rivals in false cases.
16. The Code of Criminal Procedure, 1898 did not contain any specific provision corresponding to the present Section
438 Code of Criminal Procedure The only two clear provisions of law by which bail could be granted were Sections 437
and 439 of the Code. Section 438 was incorporated in the Code of Criminal Procedure, 1973 for the first time.
17. It is clear from the Statement of Objects and Reasons that the purpose of incorporating Section 438 in the Code of
Criminal Procedure was to recognize the importance of personal liberty and freedom in a free and democratic country.
When we carefully analyze this section, the wisdom of the legislature becomes quite evident and clear that the legislature
was keen to ensure respect for the personal liberty and also pressed in service the age-old principle that an individual is
presumed to be innocent till he is found guilty by the court.
18. The High Court in the impugned judgment has declined to grant anticipatory bail to the Appellant and aggrieved by
the said order, the Appellant has approached this Court by filing this appeal.
19. Mr. Shanti Bhushan, learned senior counsel appearing for the Appellant submitted that the High Court has gravely
erred in declining the anticipatory bail to the Appellant. He submitted that Section 438 Code of Criminal Procedure was
incorporated because sometime influential people try to implicate their rivals in false cases for the purpose of disgracing
them or for other purposes by getting them detained in jail for some days. He pointed out that in recent times, with the
accentuation of political rivalry, this tendency is showing signs of steady increase.
20. Mr. Bhushan submitted that the Appellant has been implicated in a false case and apart from that he has already
joined the investigation and he is not likely to abscond, or otherwise misuse the liberty while on bail, therefore, there was
no justification to decline anticipatory bail to the Appellant.
21. Mr. Bhushan also submitted that the FIR in this case refers to an incident which had taken place on the instigation of
the Appellant about eight days ago. According to him, proper analysis of the averments in the FIR leads to irresistible
conclusion that the entire prosecution story seems to be a cock and bull story and no reliance can be placed on such a
concocted version.
22. Mr. Bhushan contended that the personal liberty is the most important fundamental right guaranteed by the
Constitution. He also submitted that it is the fundamental principle of criminal jurisprudence that every individual is
presumed to be innocent till he or she is found guilty. He further submitted that on proper analysis of Section 438 Code
of Criminal Procedure the legislative wisdom becomes quite evident that the legislature wanted to preserve and protect
personal liberty and give impetus to the age-old principle that every person is presumed to be innocent till he is found
guilty by the court.
23. Mr. Bhushan also submitted that an order of anticipatory bail does not in any way, directly or indirectly, take away
from the police their power and right to fully investigate into charges made against the Appellant. He further submitted
that when the case is under investigation, the usual anxiety of the investigating agency is to ensure that the alleged
accused should fully cooperate with them and should be available as and when they require him. In the instant case,
when the Appellant has already joined the investigation and is fully cooperating with the investigating agency then it is
difficult to comprehend why the Respondent is insistent for custodial interrogation of the Appellant? According to the
Appellant, in the instant case, the investigating agency should not have a slightest doubt that the Appellant would not be
available to the investigating agency for further investigation particularly when he has already joined investigation and is
fully cooperating with the investigating agency.

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24. Mr. Bhushan also submitted that according to the General Clauses Act, 1897 the court which grants the bail also has
the power to cancel it. The grant of bail is an interim order. The court can always review its decision according to the
subsequent facts, circumstances and new material. Mr. Bhushan also submitted that the exercise of grant, refusal and
cancellation of bail can be undertaken by the court either at the instance of the accused or a public prosecutor or a
complainant on finding fresh material and new circumstances at any point of time. Even the Appellant's reluctance in
not fully cooperating with the investigation could be a ground for cancellation of bail.
25. Mr. Bhushan submitted that a plain reading of the Section 438 Code of Criminal Procedure clearly reveals that the
legislature has not placed any fetters on the court. In other words, the legislature has not circumscribed court's discretion
in any manner while granting anticipatory bail, therefore, the court should not limit the order only for a specified period
till the charge-sheet is filed and thereafter compel the accused to surrender and ask for regular bail under Section 439
Code of Criminal Procedure , meaning thereby the legislature has not envisaged that the life of the anticipatory bail
would only last till the charge-sheet is filed. Mr. Bhushan submitted that when no embargo has been placed by the
legislature then this Court in some of its orders was not justified in placing this embargo.
26. Mr. Bhushan submitted that the discretion which has been granted by the legislature cannot and should not be
curtailed by interpreting the provisions contrary to the legislative intention. The courts' discretion in grant or refusal of
the anticipatory bail cannot be diluted by interpreting the provisions against the legislative intention. He submitted that
the life is never static and every situation has to be assessed and evaluated in the context of emerging concerns as and
when it arises. It is difficult to visualize or anticipate all kinds of problems and situations which may arise in future.
Law has been settled by an authoritative pronouncement of the Supreme Court
27. The Constitution Bench of this Court in Gurbaksh Singh Sibbia and Ors. v. State of Punjab MANU/SC/0215/1980
: (1980) 2 SCC 565 had an occasion to comprehensively deal with the scope and ambit of the concept of anticipatory
bail. Section 438 Code of Criminal Procedure is an extraordinary provision where the accused who apprehends his/her
arrest on accusation of having committed a non-bailable offence can be granted bail in anticipation of arrest. The
Constitution Bench's relevant observations are set out as under:
...A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its
intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is
required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the
discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hall mark of a
prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.
28. Mr. Bhushan referred to a Constitution Bench judgment in Sibbia's case (supra) to strengthen his argument that no
such embargo has been placed by the said judgment of the Constitution Bench. He placed heavy reliance on para 15 of
Sibbia's case (supra), which reads as under:
15. Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of
their decisions. And it will be strange if, by employing judicial artifices and techniques, we cut down the discretion so
wisely conferred upon the courts, by devising a formula which will confine the power to grant anticipatory bail within a
strait-jacket. While laying down cast-iron rules in a matter like granting anticipatory bail, as the High Court has done, it is
apt to be overlooked that even judges can have but an imperfect awareness of the needs of new situations. Life is never
static and every situation has to be assessed in the context of emerging concerns as and when it arises. therefore, even if
we were to frame a 'Code for the grant of anticipatory bail', which really is the business of the legislature, it can at best
furnish broad guide-lines and cannot compel blind adherence. In which case to grant bail and in which to refuse it is, in
the very nature of things, a matter of discretion. But apart from the fact that the question is inherently of a kind which
calls for the use of discretion from case to case, the legislature has, in terms express, relegated the decision of that
question to the discretion of the court, by providing that it may grant bail "if it thinks fit". The concern of the courts
generally is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern to stultify the
discretion conferred upon the courts by law.
29. Mr. Bhushan submitted that the Constitution Bench in Sibbia's case (supra) also mentioned that "we see no valid
reason for rewriting Section 438 with a view, not to expanding the scope and ambit of the discretion conferred on the

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High Court and the Court of Session but, for the purpose of limiting it. Accordingly, we are unable to endorse the view
of the High Court that anticipatory bail cannot be granted in respect of offences like criminal breach of trust for the
mere reason that the punishment provided therefore is imprisonment for life. Circumstances may broadly justify the
grant of bail in such cases too, though of course, the court is free to refuse anticipatory bail in any case if there is
material before it justifying such refusal".
30. Mr. Bhushan submitted that the court's orders in some cases that anticipatory bail is granted till the charge-sheet is
filed and thereafter the accused has to surrender and seek bail application under Section 439 Code of Criminal Procedure
is neither envisaged by the provisions of the Act nor is in consonance with the law declared by a Constitution Bench in
Sibbia's case (supra) nor it is in conformity with the fundamental principles of criminal jurisprudence that accused is
considered to be innocent till he is found guilty nor in consonance with the provisions of the Constitution where
individual's liberty in a democratic society is considered sacrosanct.
31. Mr. Mahesh Jethmalani, learned senior counsel appearing for Respondent No. 2, submitted that looking to the facts
and circumstances of this case, the High Court was justified in declining the anticipatory bail to the Appellant. He
submitted that the anticipatory bail ought to be granted in rarest of rare cases where the nature of offence is not very
serious. He placed reliance on the case of Pokar Ram v. State of Rajasthan and Ors. MANU/SC/0088/1985 : (1985) 2
SCC 597 and submitted that in murder cases custodial interrogation is of paramount importance particularly when no
eye witness account is available.
32. Mr. Jethmalani fairly submitted that the practice of passing orders of anticipatory bail operative for a few days and
directing the accused to surrender before the Magistrate and apply for regular bail are contrary to the law laid down in
Sibbia's case (supra). The decisions of this Court in Salauddin Abdulsamad Shaikh v. State of Maharashtra
MANU/SC/0280/1996 : (1996) 1 SCC 667, K.L. Verma v. State and Anr. MANU/SC/1493/1998 : (1998) 9 SCC 348,
Adri Dharan Das v. State of West Bengal MANU/SC/0120/2005 : (2005) 4 SCC 303 and Sunita Devi v. State of Bihar
and Anr. MANU/SC/1032/2004 : (2005) 1 SCC 608 are in conflict with the above decision of the Constitution Bench
in Sibbia's case (supra). He submitted that all these orders which are contrary to the clear legislative intention of law laid
down in Sibbia's case (supra) are per incuriam. He also submitted that in case the conflict between the two views is
irreconcilable, the court is bound to follow the judgment of the Constitution Bench over the subsequent decisions of
Benches of lesser strength.
33. He placed reliance on N. Meera Rani v. Government of Tamil Nadu and Anr. MANU/SC/0381/1989 : (1989) 4
SCC 418 wherein it was perceived that there was a clear conflict between the judgment of the Constitution Bench and
subsequent decisions of Benches of lesser strength. The Court ruled that the dictum in the judgment of the Constitution
Bench has to be preferred over the subsequent decisions of the Bench of lesser strength. The Court observed thus:
...All subsequent decisions which are cited have to be read in the light of the Constitution Bench decision since they are
decisions by Benches comprising of lesser number of judges. It is obvious that none of these subsequent decisions could
have intended taking a view contrary to that of the Constitution bench in Rameshwar Shaw's case
MANU/SC/0041/1963 : (1964) 4 SCR 921
34. He placed reliance on another judgment of this Court in Vijayalaxmi Cashew Company and Ors. v. Dy. Commercial
Tax Officer and Anr. MANU/SC/1015/1996 : (1996) 1 SCC 468. This Court held as under:
... It is not possible to uphold the contention that perception of the Supreme Court, as will appear from the later
judgments, has changed in this regard. A judgment of a Five Judge Bench, which has not been doubted by any later
judgment of the Supreme Court cannot be treated as overruled by implication.
35. He also placed reliance on Union of India and Ors. v. K. S. Subramanian MANU/SC/0468/1976 : (1976) 3 SCC 677
and State of U.P. v. Ram Chandra Trivedi MANU/SC/0465/1976 : (1976) 4 SCC 52 and submitted that in case of
conflict, the High Court has to prefer the decision of a larger Bench to that of a smaller Bench.
36. Mr. Jethmalani submitted that not only the decision in Sibbia's case (supra) must be followed on account of the
larger strength of the Bench that delivered it but the subsequent decisions must be held to be per incuriam and hence
not binding since they have not taken into account the ratio of the judgment of the Constitution Bench.

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37. He further submitted that as per the doctrine of 'per incuriam', any judgment which has been passed in ignorance of
or without considering a statutory provision or a binding precedent is not good law and the same ought to be ignored. A
perusal of the judgments in Salauddin Abdulsamad Shaikh v. State of Maharashtra, K.L. Verma v. State and Anr., Adri
Dharan Das v. State of West Bengal and Sunita Devi v. State of Bihar and Anr. (supra) indicates that none of these
judgments have considered para 42 of Sibbia's case (supra) in proper perspective. According to Mr. Jethmalani, all
subsequent decisions which have been cited above have to be read in the light of the Constitution Bench's decision in
Sibbia's case (supra) since they are decisions of Benches comprised of lesser number of judges. According to him, none
of these subsequent decisions could be intended taking a view contrary to that of the Constitution Bench in Sibbia's case
(supra).
38. Thus, the law laid down in para 42 by the Constitution Bench that the normal rule is not to limit operation of the
order of anticipatory bail, was not taken into account by the courts passing the subsequent judgments. The observations
made by the courts in the subsequent judgments have been made in ignorance of and without considering the law laid
down in para 42 which was binding on them. In these circumstances, the observations made in the subsequent
judgments to the effect that anticipatory bail should be for a limited period of time, must be construed to be per
incuriam and the decision of the Constitution Bench preferred.
39. He further submitted that the said issue came up for consideration before the Madras High Court reported in
Palanikumar and Anr. v. State 2007 (4) CTC 1 wherein after discussing all the judgments of this Court on the issue, the
court held that the subsequent judgments were in conflict with the decision of the Constitution Bench in Sibbia's case
(supra) and in accordance with the law of precedents, the judgment of the Constitution Bench is biding on all courts and
the ratio of that judgment has to be applicable for all judgments decided by the Benches of same or smaller
combinations. In the said judgment of Sibbia's case (supra) it was directed that the anticipatory bail should not be limited
in period of time.
40. We have heard the learned Counsel for the parties at great length and perused the written submissions filed by the
learned Counsel for the parties.
Relevance and importance of personal liberty
41. All human beings are born with some unalienable rights like life, liberty and pursuit of happiness. The importance of
these natural rights can be found in the fact that these are fundamental for their proper existence and no other right can
be enjoyed without the presence of right to life and liberty.
42. Life bereft of liberty would be without honour and dignity and it would lose all significance and meaning and the life
itself would not be worth living. That is why "liberty" is called the very quintessence of a civilized existence.
43. Origin of "liberty"' can be traced in the ancient Greek civilization. The Greeks distinguished between the liberty of
the group and the liberty of the individual. In 431 B.C., an Athenian statesman described that the concept of liberty was
the outcome of two notions, firstly, protection of group from attack and secondly, the ambition of the group to realize
itself as fully as possible through the self-realization of the individual by way of human reason. Greeks assigned the duty
of protecting their liberties to the State. According to Aristotle, as the state was a means to fulfil certain fundamental
needs of human nature and was a means for development of individuals' personality in association of fellow citizens so it
was natural and necessary to man. Plato found his "republic" as the best source for the achievement of the self-
realization of the people.
44. Chambers' Twentieth Century Dictionary defines "liberty" as "Freedom to do as one pleases, the unrestrained
employment of natural rights, power of free chance, privileges, exemption, relaxation of restraint, the bounds within
which certain privileges are enjoyed, freedom of speech and action beyond ordinary civility".
45. It is very difficult to define the "liberty". It has many facets and meanings. The philosophers and moralists have
praised freedom and liberty but this term is difficult to define because it does not resist any interpretation. The term
"liberty" may be defined as the affirmation by an individual or group of his or its own essence. It needs the presence of
three factors, firstly, harmonious balance of personality, secondly, the absence of restraint upon the exercise of that
affirmation and thirdly, organization of opportunities for the exercise of a continuous initiative.

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46. "Liberty" may be defined as a power of acting according to the determinations of the will. According to Harold
Laski, liberty was essentially an absence of restraints and John Stuard Mill viewed that "all restraint", qua restraint is an
evil". In the words of Jonathon Edwards, the meaning of "liberty" and freedom is:
Power, opportunity or advantage that any one has to do as he pleases, or, in other words, his being free from hindrance
or impediment in the way of doing, or conducting in any respect, as he wills.
47. It can be found that "liberty" generally means the prevention of restraints and providing such opportunities, the
denial of which would result in frustration and ultimately disorder. Restraints on man's liberty are laid down by power
used through absolute discretion, which when used in this manner brings an end to "liberty" and freedom is lost. At the
same time "liberty" without restraints would mean liberty won by one and lost by another. So "liberty" means doing of
anything one desires but subject to the desire of others.
48. As John E.E.D. in his monograph Action on "Essays on Freedom and Power" wrote that Liberty is one of the most
essential requirements of the modern man. It is said to be the delicate fruit of a mature civilization.
49. A distinguished former Attorney General for India, M.C. Setalvad in his treatise "War and civil Liberties" observed
that the French Convention stipulates common happiness as the end of the society, whereas Bentham postulates the
greatest happiness of the greatest number as the end of law. Article 19 of the Indian Constitution averts to freedom and
it enumerates certain rights regarding individual freedom. These rights are vital and most important freedoms which lie
at the very root of liberty.
50. He further observed that the concept of civil liberty is essentially rooted in the philosophy of individualism.
According to this doctrine, the highest development of the individual and the enrichment of his personality are the true
function and end of the state. It is only when the individual has reached the highest state of perfection and evolved what
is best in him that society and the state can reach their goal of perfection. In brief, according to this doctrine, the state
exists mainly, if not solely, for the purpose of affording the individual freedom and assistance for the attainment of his
growth and perfection. The state exists for the benefit of the individual.
51. Mr. Setalvad in the same treatise further observed that it is also true that the individual cannot attain the highest in
him unless he is in possession of certain essential liberties which leave him free as it were to breathe and expand.
According to Justice Holmes, these liberties are the indispensable conditions of a free society. The justification of the
existence of such a state can only be the advancement of the interests of the individuals who compose it and who are its
members. therefore, in a properly constituted democratic state, there cannot be a conflict between the interests of the
citizens and those of the state. The harmony, if not the identity, of the interests of the state and the individual, is the
fundamental basis of the modern Democratic National State. And, yet the existence of the state and all government and
even all law must mean in a measure the curtailment of the liberty of the individual. But such a surrender and
curtailment of his liberty is essential in the interests of the citizens of the State. The individuals composing the state
must, in their own interests and in order that they may be assured the existence of conditions in which they can, with a
reasonable amount of freedom, carry on their other activities, endow those in authority over them to make laws and
regulations and adopt measures which impose certain restrictions on the activities of the individuals.
52. Harold J. Laski in his monumental work in "Liberty in the Modern State" observed that liberty always demands a
limitation on political authority. Power as such when uncontrolled is always the natural enemy of freedom.
53. Roscoe Pound, an eminent and one of the greatest American Law Professors aptly observed in his book "The
Development of Constitutional Guarantee of Liberty" that whatever, 'liberty' may mean today, the liberty is guaranteed
by our bills of rights, "is a reservation to the individual of certain fundamental reasonable expectations involved in life in
civilized society and a freedom from arbitrary and unreasonable exercise of the power and authority of those who are
designated or chosen in a politically organized society to adjust that society to individuals."
54. Blackstone in "Commentaries on the Laws of England", Vol.I, p.134 aptly observed that "Personal liberty consists in
the power of locomotion, of changing situation or moving one's person to whatsoever place one's own inclination may
direct, without imprisonment or restraint unless by due process of law".

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55. According to Dicey, a distinguished English author of the Constitutional Law in his treatise on Constitutional Law
observed that, "Personal liberty, as understood in England, means in substance a person's right not to be subjected to
imprisonment, arrest, or other physical coercion in any manner that does not admit of legal justification." [Dicey on
Constitutional Law, 9th Edn., pp.207-08]. According to him, it is the negative right of not being subjected to any form
of physical restraint or coercion that constitutes the essence of personal liberty and not mere freedom to move to any
part of the Indian territory. In ordinary language personal liberty means liberty relating to or concerning the person or
body of the individual, and personal liberty in this sense is the antithesis of physical restraint or coercion.
56. Eminent English Judge Lord Alfred Denning observed:
By personal freedom I mean freedom of every law abiding citizen to think what he will, to say what he will, and to go
where he will on his lawful occasion without hindrance from any person.... It must be matched, of course, with social
security by which I mean the peace and good order of the community in which we live.
57. Eminent former Judge of this Court, Justice H.R. Khanna in a speech as published in 2 IJIL, Vol.18 (1978), p.133
observed that "liberty postulates the creation of a climate wherein there is no suppression of the human spirits, wherein,
there is no denial of the opportunity for the full growth of human personality, wherein head is held high and there is no
servility of the human mind or enslavement of the human body".
Right to life and personal liberty under the Constitution
58. We deem it appropriate to deal with the concept of personal liberty under the Indian and other Constitutions.
59. The Fundamental Rights represent the basic values enriched by the people of this country. The aim behind having
elementary right of the individual such as the Right to Life and Liberty is not fulfilled as desired by the framers of the
Constitution. It is to preserve and protect certain basic human rights against interference by the state. The inclusion of a
Chapter in Constitution is in accordance with the trends of modern democratic thought. The object is to ensure the
inviolability of certain essential rights against political vicissitudes.
60. The framers of the Indian Constitution followed the American model in adopting and incorporating the
Fundamental Rights for the people of India. American Constitution provides that no person shall be deprived of his life,
liberty, or property without due process of law. The due process clause not only protects the property but also life and
liberty, similarly Article 21 of the Indian Constitution asserts the importance of Life and Liberty. The said Article reads
as under:
no person shall be deprived for his life or personal liberty except according to procedure established by law
the right secured by Article 21 is available to every citizen or non-citizen, according to this article, two rights are secured.
1. Right to life
2 Right to personal liberty.
61. Life and personal liberty are the most prized possessions of an individual. The inner urge for freedom is a natural
phenomenon of every human being. Respect for life, liberty and property is not merely a norm or a policy of the State
but an essential requirement of any civilized society.
62. This Court defined the term "personal liberty" immediately after the Constitution came in force in India in the case
of A.K. Gopalan v. The State of Madras MANU/SC/0012/1950 : AIR 1950 SC 27. The expression 'personal liberty' has
wider as well narrow meaning. In the wider sense it includes not only immunity from arrest and detention but also
freedom of speech, association etc. In the narrow sense, it means immunity from arrest and detention. The juristic
conception of 'personal liberty', when used the latter sense, is that it consists freedom of movement and locomotion.

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63. Mukherjea, J. in the said judgment observed that 'Personal Liberty' means liberty relating to or concerning the person
or body of the individual and it is, in this sense, antithesis of physical restraint or coercion. 'Personal Liberty' means a
personal right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit
of legal justification. This negative right constitutes the essence of personal liberty. Patanjali Shastri, J. however, said that
whatever may be the generally accepted connotation of the expression 'personal liberty', it was used in Article 21 in a
sense which excludes the freedom dealt with in Article 19. Thus, the Court gave a narrow interpretation to 'personal
liberty'. This Court excluded certain varieties of rights, as separately mentioned in Article 19, from the purview of
'personal liberty' guaranteed by Article 21.
64. In Kharak Singh v. State of U.P. and Ors. MANU/SC/0085/1962 : AIR 1963 SC 1295, Subba Rao, J. defined
'personal liberty, as a right of an individual to be free from restrictions or encroachment on his person whether these are
directly imposed or indirectly brought about by calculated measure. The court held that 'personal liberty' in Article 21
includes all varieties of freedoms except those included in Article 19.
65. In Maneka Gandhi v. Union of India and Anr. MANU/SC/0133/1978 : (1978) 1 SCC 248, this Court expanded the
scope of the expression 'personal liberty' as used in Article 21 of the Constitution of India. The court rejected the
argument that the expression 'personal liberty' must be so interpreted as to avoid overlapping between Article 21 and
Article 19(1). It was observed: "The expression 'personal liberty' in Article 21 is of the widest amplitude and it covers a
variety of rights which go to constitute the personal liberty of a man and some of them have been raised to the status of
distinct fundamental rights and given additional protection under Article 19." So, the phrase 'personal liberty' is very
wide and includes all possible rights which go to constitute personal liberty, including those which are mentioned in
Article 19.
66. Right to life is one of the basic human right and not even the State has the authority to violate that right. [State of
A.P. v. Challa Ramakrishna Reddy and Ors. MANU/SC/0368/2000 : (2000) 5 SCC 712].
67. Article 21 is a declaration of deep faith and belief in human rights. In this pattern of guarantee woven in Chapter III
of this Constitution, personal liberty of man is at root of Article 21 and each expression used in this Article enhances
human dignity and values. It lays foundation for a society where rule of law has primary and not arbitrary or capricious
exercise of power. [Kartar Singh v. State of Punjab and Ors. MANU/SC/1597/1994 : (1994) 3 SCC 569.
68. While examining the ambit, scope and content of the expression "personal liberty" in the said case, it was held that
the term is used in this Article as a compendious term to include within itself all varieties of rights which goes to make
up the "personal liberties" or man other than those dealt within several clauses of Article 19(1). While Article 19(1) deals
with particular species or attributes of that freedom, "personal liberty" in Article 21 takes on and comprises the residue.
69. The early approach to Article 21 which guarantees right to life and personal liberty was circumscribed by literal
interpretation in A.K. Gopalan (supra). But in course of time, the scope of this application of the Article against arbitrary
encroachment by the executives has been expanded by liberal interpretation of the components of the Article in tune
with the relevant international understanding. Thus protection against arbitrary privation of "life" no longer means mere
protection of death, or physical injury, but also an invasion of the right to "live" with human dignity and would include
all these aspects of life which would go to make a man's life meaningful and worth living, such as his tradition, culture
and heritage. [Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Ors. MANU/SC/0517/1981 :
(1981) 1 SCC 608]
70. Article 21 has received very liberal interpretation by this Court. It was held: "The right to live with human dignity and
same does not connote continued drudging. It takes within its fold some process of civilization which makes life worth
living and expanded concept of life would mean the tradition, culture, and heritage of the person concerned." [P.
Rathinam/Nagbhusan Patnaik v. Union of India and Anr. MANU/SC/0433/1994 : (1994) 3 SCC 394.]
71. The object of Article 21 is to prevent encroachment upon personal liberty in any manner. Article 21 is repository of
all human rights essentially for a person or a citizen. A fruitful and meaningful life presupposes full of dignity, honour,
health and welfare. In the modern "Welfare Philosophy", it is for the State to ensure these essentials of life to all its
citizens, and if possible to non-citizens. While invoking the provisions of Article 21, and by referring to the oft-quoted
statement of Joseph Addison, "Better to die ten thousand deaths than wound my honour", the Apex court in Khedat

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Mazdoor Chetana Sangath v. State of M.P. and Ors. MANU/SC/0007/1995 : (1994) 6 SCC 260 posed to itself a
question "If dignity or honour vanishes what remains of life"? This is the significance of the Right to Life and Personal
Liberty guaranteed under the Constitution of India in its third part.
72. This Court in Central Inland Water Transport Corporation Ltd. and Anr. v. Brojo Nath Ganguly and Anr.
MANU/SC/0439/1986 : (1986) 3 SCC 156 observed that the law must respond and be responsive to the felt and
discernible compulsions of circumstances that would be equitable, fair and justice, and unless there is anything to the
contrary in the statute, Court must take cognizance of that fact and act accordingly.
73. This Court remarked that an undertrial prisoner should not be put in fetters while he is being taken from prison to
Court or back to prison from Court. Steps other than putting him in fetters will have to be taken to prevent his escape.
74. In Prem Shankar Shukla v. Delhi Administration MANU/SC/0084/1980 : (1980) 3 SCC 526, this Court has made
following observations:
...The Punjab Police Manual, in so far as it puts the ordinary Indian beneath the better class breed (para 26.21A and
26.22 of Chapter XXVI) is untenable and arbitrary. Indian humans shall not be dichotomised and the common run
discriminated against regarding handcuffs. The provisions in para 26.22 that every under-trial who is accused of a non-
bailable offence punishable with more than 3 years prison term shall be routinely handcuffed is violative of Articles 14,
19 and 21. The nature of the accusation is not the criterion. The clear and present danger of escape breaking out of the
police control is the determinant. And for this there must be clear material, not glib assumption, record of reasons and
judicial oversight and summary hearing and direction by the court where the victim is produced. ...
Handcuffs are not summary punishment vicariously imposed at police level, at once obnoxious and irreversible. Armed
escorts, worth the salt, can overpower any unarmed under-trial and extra guards can make up exceptional needs. In very
special situations, the application of irons is not ruled out. The same reasoning applies to (e) and (f). Why torture the
prisoner because others will demonstrate or attempt his rescue? The plain law of under-trial custody is thus contrary to
the unedifying escort practice. (Para 31)
Even in cases where, in extreme circumstances, handcuffs have to be put on the prisoner, the escorting authority must
record contemporaneously the reason for doing so. Otherwise, under Article 21 the procedure will be unfair and bad in
law. The minions of the police establishment must make good their security recipes by getting judicial approval. And,
once the court directs that handcuffs shall be off, no escorting authority can overrule judicial direction. This is implicit in
Article 21 which insists upon fairness, reasonableness and justice in the very procedure which authorities stringent
deprivation of life and liberty. (Para 30)
It is implicit in Articles 14 and 19 that when there is no compulsive need to fetter a person's limbs, it is sadistic,
capricious, despotic and demoralizing to humble a man by manacling him. Such arbitrary conduct surely slaps Article 14
on the face. The minimal freedom of movement which even a detainee is entitled to under Article 19 cannot be cut
down cruelly by application of handcuffs or other hoops. It will be unreasonable so to do unless the State is able to
make out that no other practical way of forbidding escape is available, the prisoner being so dangerous and desperate
and the circumstances so hostile to safekeeping. (Para 23)
Whether handcuffs or other restraint should be imposed on a prisoner is a matter for the decision of the authority
responsible for his custody. But there is room for imposing supervisory regime over the exercise of that power. One
sector of supervisory jurisdiction could appropriately lie with the court trying the accused, and it would be desirable for
the custodial authority to inform that court of the circumstances in which, and the justification for, imposing a restraint
on the body of the accused. It should be for the court concerned to work out the modalities of the procedure requisite
for the purpose of enforcing such control.
75. After dealing with the concept of life and liberty under the Indian Constitution, we would like to have the brief
survey of other countries to ascertain how life and liberty has been protected in other countries.
UNITED KINGDOM

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76. Life and personal liberty has been given prime importance in the United Kingdom. It was in 1215 that the people of
England revolted against King John and enforced their rights, first time the King had acknowledged that there were
certain rights of the subject could be called Magna Carta 1215. In 1628 the petition of rights was presented to King
Charles-I which was the 1st step in the transfer of Sovereignty from the King to Parliament. It was passed as the Bill of
Rights 1689.
77. In the Magna Carta, it is stated "no free man shall be taken, or imprisoned or disseised or outlawed or banished or
any ways destroyed, nor will the King pass upon him or commit him to prison, unless by the judgment of his peers or
the law of the land".
78. Right to life is the most fundamental of all human rights and any decision affecting human right or which may put an
individual's life at risk must call for the most anxious scrutiny. See: Bugdaycay v. Secretary of State for the Home
Department (1987) 1 All ER 940. The sanctity of human life is probably the most fundamental of the human social
values. It is recognized in all civilized societies and their legal system and by the internationally recognized statements of
human rights. See: R on the application of Pretty v. Director of Public Prosecutions (2002) 1 All ER 1.
U.S.A.
79. The importance of personal liberty is reflected in the Fifth Amendment to the Constitution of U.S.A. (1791) which
declares as under:
No person shall be .... deprived of his life, liberty or property, without due process of law." (The 'due process' clause was
adopted in Section 1(a) of the Canadian Bill of Rights Act, 1960. In the Canada Act, 1982, this expression has been
substituted by 'the principles of fundamental justice' [Section 7].
80. The Fourteenth Amendment imposes similar limitation on the State authorities. These two provisions are
conveniently referred to as the 'due process clauses'. Under the above clauses the American Judiciary claims to declare a
law as bad, if it is not in accordance with 'due process', even though the legislation may be within the competence of the
Legislature concerned. Due process is conveniently understood means procedural regularity and fairness. (Constitutional
Interpretation by Craig R. Ducat, 8th Edn. 2002 p.475.).
WEST GERMANY
81. Article 2(2) of the West German Constitution (1948) declares:
Everyone shall have the right to life and physical inviolability. The freedom of the individual shall be inviolable. These
rights may be interfered with only on the basis of the legal order.
Though the freedom of life and liberty guaranteed by the above Article may be restricted, such restriction will be valid
only if it is in conformity with the 'legal order' (or 'pursuant to a law, according to official translation). Being a basic
right, the freedom guaranteed by Article 2(2) is binding on the legislative, administrative and judicial organs of the State
[Article 1(3)]. This gives the individual the rights to challenge the validity of a law or an executive act violative the
freedom of the person by a constitutional complaint to the Federal Constitutional Court, under Article 93. Procedural
guarantee is given by Articles 103(1) and 104. Article 104(1)-2(2) provides:
(1) The freedom of the individual may be restricted only on the basis of a formal law and only with due regard to the
forms prescribed therein....
(2) Only the Judge shall decide on the admissibility and continued deprivation of liberty.
82. These provisions correspond to Article 21 of our Constitution and the court is empowered to set a man to liberty if
it appears that he has been imprisoned without the authority of a formal law or in contravention of the procedure
prescribed there.

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JAPAN
83. Article XXXI of the Japanese Constitution of 1946 says:
No person shall be deprived of life or liberty nor shall any other criminal penalty be imposed, except according to
procedure established by law.
This article is similar to Article 21 of our Constitution save that it includes other criminal penalties, such as fine or
forfeiture within its ambit.
CANADA
84. Section 1(1) of the Canadian Bill of Rights Act, 1960, adopted the 'Due Process' Clause from the American
Constitution. But the difference in the Canadian set-up was due to the fact that this Act was not a constitutional
instrument to impose a direct limitation on the Legislature but only a statute for interpretation of Canadian status,
which, again, could be excluded from the purview of the Act of 1960, in particular cases, by an express declaration made
by the Canadian Parliament itself (Section 2). The result was obvious: The Canadian Supreme Court in R. v. Curr (1972)
SCR 889 held that the Canadian Court would not import 'substantive reasonableness' into Section 1(a), because of the
unsalutary experience of substantive due process in the U.S.A.; and that as to 'procedural reasonableness', Section 1(a) of
the Bill of Rights Act only referred to 'the legal processes recognized by Parliament and the Courts in Canada'. The result
was that in Canada, the 'due process clause' lost its utility as an instrument of judicial review of legislation and it came to
mean practically the same thing as whatever the Legislature prescribes, - much the same as 'procedure established by law'
in Article 21 of the Constitution of India, as interpreted in A.K. Gopalan (supra).
BANGLADESH
85. Article 32 of the Constitution of Bangladesh 1972 [3 SCW 385] reads as under:
No person shall be deprived of life or personal liberty save in accordance with law.
This provision is similar to Article 21 of the Indian Constitution. Consequently, unless controlled by some other
provision, it should be interpreted as in India.
PAKISTAN
86. Article 9 Right to life and Liberty. - "Security of Person: No person shall be deprived of life and liberty save in
accordance with law."
NEPAL
87. In the 1962 - Constitution of Nepal, there is Article 11(1) which deals with right to life and liberty which is identical
with Article 21 of the Indian Constitution.
INTERNATIONAL CHARTERS
88. Universal Declaration, 1948. - Article 3 of the Universal Declaration says:
Everyone has the right to life, liberty and security of person.
Article 9 provides:
No one shall be subjected to arbitrary arrest, detention or exile.

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Cl.10 says:
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the
determination of his rights and obligations and of any criminal charge against him. [As to its legal effect, see M. v.
Organisation Belge ILR (1972) 446
89. Covenant on civil and Political Rights - Article 9(1) of the U.N. 1966, 1966 says:
Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No
one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by
law.
90. European Convention on Human Rights, 1950. - This Convention contains a most elaborate and detailed
codification of the rights and safeguards for the protection of life and personal liberty against arbitrary invasion.
91. In every civilized democratic country, liberty is considered to be the most precious human right of every person. The
Law Commission of India in its 177th Report under the heading 'Introduction to the doctrine of "arrest" has described
as follows:
Liberty is the most precious of all the human rights". It has been the founding faith of the human race for more than
200 years. Both the American Declaration of Independence, 1776 and the French Declaration of the Rights of Man and
the Citizen, 1789, spoke of liberty being one of the natural and inalienable rights of man. The universal declaration of
human rights adopted by the general assembly on United Nations on December 10, 1948 contains several articles
designed to protect and promote the liberty of individual. So does the international covenant on civil and political rights,
1996. Above all, Article 21 of the Constitution of India proclaims that no one shall be deprived of his right to personal
liberty except in accordance with the procedure prescribed by law. Even Article 20(1) & (2) and Article 22 are born out
of a concern for human liberty. As it is often said, "one realizes the value of liberty only when he is deprived of it."
Liberty, along with equality is the most fundamental of human rights and the fundamental freedoms guaranteed by the
Constitution. Of equal importance is the maintenance of peace, law and order in the society. Unless, there is peace, no
real progress is possible. Societal peace lends stability and security to the polity. It provides the necessary conditions for
growth, whether it is in the economic sphere or in the scientific and technological spheres.
92. Just as the Liberty is precious to an individual, so is the society's interest in maintenance of peace, law and order.
Both are equally important.
93. It is a matter of common knowledge that a large number of undertrials are languishing in jail for a long time even for
allegedly committing very minor offences. This is because Section 438 Code of Criminal Procedure has not been allowed
its full play. The Constitution Bench in Sibbia's case (supra) clearly mentioned that Section 438 Code of Criminal
Procedure is extraordinary because it was incorporated in the Code of Criminal Procedure, 1973 and before that other
provisions for grant of bail were Sections 437 and 439 Code of Criminal Procedure It is not extraordinary in the sense
that it should be invoked only in exceptional or rare cases. Some courts of smaller strength have erroneously observed
that Section 438 Code of Criminal Procedure should be invoked only in exceptional or rare cases. Those orders are
contrary to the law laid down by the judgment of the Constitution Bench in Sibbia's case (supra). According to the
report of the National Police Commission, the power of arrest is grossly abused and clearly violates the personal liberty
of the people, as enshrined under Article 21 of the Constitution, then the courts need to take serious notice of it. When
conviction rate is admittedly less than 10%, then the police should be slow in arresting the accused. The courts
considering the bail application should try to maintain fine balance between the societal interest vis-o?=-vis personal
liberty while adhering to the fundamental principle of criminal jurisprudence that the accused that the accused is
presumed to be innocent till he is found guilty by the competent court.
94. The complaint filed against the accused needs to be thoroughly examined including the aspect whether the
complainant has filed false or frivolous complaint on earlier occasion. The court should also examine the fact whether
there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the
complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the

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connivance between the complainant and the investigating officer is established then action be taken against the
investigating officer in accordance with law.
95. The gravity of charge and exact role of the accused must be properly comprehended. Before arrest, the arresting
officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases
the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks
and observations of the arresting officer can also be properly evaluated by the court.
96. It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion
must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of
the considered view that the accused has joined investigation and he is fully cooperating with the investigating agency
and is not likely to abscond, in that event, custodial interrogation should be avoided.
97. A great ignominy, humiliation and disgrace is attached to the arrest. Arrest leads to many serious consequences not
only for the accused but for the entire family and at times for the entire community. Most people do not make any
distinction between arrest at a pre-conviction stage or post-conviction stage.
Whether the powers under Section 438 Code of Criminal Procedure are subject to limitation of Section 437 Code of
Criminal Procedure ?
98. The question which arises for consideration is whether the powers under Section 438 Code of Criminal Procedure
are unguided or uncanalised or are subject to all the limitations of Section 437 Code of Criminal Procedure ? The
Constitution Bench in Sibbia's case (supra) has clearly observed that there is no justification for reading into Section 438
Code of Criminal Procedure and the limitations mentioned in Section 437 Code of Criminal Procedure The Court
further observed that the plentitude of the section must be given its full play. The Constitution Bench has also observed
that the High Court is not right in observing that the accused must make out a "special case" for the exercise of the
power to grant anticipatory bail. This virtually, reduces the salutary power conferred by Section 438 Code of Criminal
Procedure to a dead letter. The Court observed that "We do not see why the provisions of Section 438 Code of Criminal
Procedure should be suspected as containing something volatile or incendiary, which needs to be handled with the
greatest care and caution imaginable."
99. As aptly observed in Sibbia's case (supra) that a wise exercise of judicial power inevitably takes care of the evil
consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the
nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an
awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable
consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of
the power to grant anticipatory bail.
100. The Constitution Bench in the same judgment also observed that a person seeking anticipatory bail is still a free
man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by
the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested,
he shall enlarged on bail.
101. The proper course of action ought to be that after evaluating the averments and accusation available on the record
if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the public
prosecutor. After hearing the public prosecutor the court may either reject the bail application or confirm the initial
order of granting bail. The court would certainly be entitled to impose conditions for the grant of bail. The public
prosecutor or complainant would be at liberty to move the same court for cancellation or modifying the conditions of
bail any time if liberty granted by the court is misused. The bail granted by the court should ordinarily be continued till
the trial of the case.
102. The order granting anticipatory bail for a limited duration and thereafter directing the accused to surrender and
apply before a regular bail is contrary to the legislative intention and the judgment of the Constitution Bench in Sibbia's
case (supra).

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103. It is a settled legal position that the court which grants the bail also has the power to cancel it. The discretion of
grant or cancellation of bail can be exercised either at the instance of the accused, the public prosecutor or the
complainant on finding new material or circumstances at any point of time.
104. The intention of the legislature is quite clear that the power of grant or refusal of bail is entirely discretionary. The
Constitution Bench in Sibbia's case (supra) has clearly stated that grant and refusal is discretionary and it should depend
on the facts and circumstances of each case.
The Constitution Bench in the said case has aptly observed that we must respect the wisdom of the Legislature
entrusting this power to the superior courts namely, the High Court and the Court of Session. The Constitution Bench
observed as under:
We would, therefore, prefer to leave the High Court and the Court of Session to exercise their jurisdiction under Section
438 by a wise and careful use of their discretion which, by their long training and experience, they are ideally suited to
do. The ends of justice will be better served by trusting these courts to act objectively and in consonance with principles
governing the grant of bail which are recognized over the years, than by divesting them of their discretion which the
legislature has conferred upon them, by laying down inflexible rules of general application. It is customary, almost
chronic, to take a statute as one finds it on the grounds that, after all "the legislature in, its wisdom" has thought it fit to
use a particular expression. A convention may usefully grow whereby the High Court and the Court of Session may be
trusted to exercise their discretionary powers in their wisdom, especially when the discretion is entrusted to their care by
the legislature in its wisdom. If they err, they are liable to be corrected.
GRANT OF BAIL FOR LIMITED PERIOD IS CONTRARY TO THE LEGISLATIVE INTENTION AND LAW
DECLARED BY THE CONSTITUTION BENCH:
105. The court which grants the bail has the right to cancel the bail according to the provisions of the General Clauses
Act but ordinarily after hearing the public prosecutor when the bail order is confirmed then the benefit of the grant of
the bail should continue till the end of the trial of that case.
106. The judgment in Salauddin Abdulsamad Shaikh (supra) is contrary to legislative intent and the spirit of the very
provisions of the anticipatory bail itself and has resulted in an artificial and unreasonable restriction on the scope of
enactment contrary to the legislative intention.
107. The restriction on the provision of anticipatory bail under Section 438 Code of Criminal Procedure limits the
personal liberty of the accused granted under Article 21 of the constitution. The added observation is nowhere found in
the enactment and bringing in restrictions which are not found in the enactment is again an unreasonable restriction. It
would not stand the test of fairness and reasonableness which is implicit in Article 21 of the Constitution after the
decision in Maneka Gandhi's case (supra) in which the court observed that in order to meet the challenge of Article 21
of the Constitution the procedure established by law for depriving a person of his liberty must be fair, just and
reasonable.
108. Section 438 Code of Criminal Procedure does not mention anything about the duration to which a direction for
release on bail in the event of arrest can be granted. The order granting anticipatory bail is a direction specifically to
release the accused on bail in the event of his arrest. Once such a direction of anticipatory bail is executed by the accused
and he is released on bail, the concerned court would be fully justified in imposing conditions including direction of
joining investigation.
109. The court does not use the expression 'anticipatory bail' but it provides for issuance of direction for the release on
bail by the High Court or the Court of Sessions in the event of arrest. According to the aforesaid judgment of
Salauddin's case, the accused has to surrender before the trial court and only thereafter he/she can make prayer for grant
of bail by the trial court. The trial court would release the accused only after he has surrendered.

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110. In pursuance to the order of the Court of Sessions or the High Court, once the accused is released on bail by the
trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for
regular bail.
111. The court must bear in mind that at times the applicant would approach the court for grant of anticipatory bail on
mere apprehension of being arrested on accusation of having committed a non-bailable offence. In fact, the investigating
or concerned agency may not otherwise arrest that applicant who has applied for anticipatory bail but just because he
makes an application before the court and gets the relief from the court for a limited period and thereafter he has to
surrender before the trial court and only thereafter his bail application can be considered and life of anticipatory bail
comes to an end. This may lead to disastrous and unfortunate consequences. The applicant who may not have otherwise
lost his liberty loses it because he chose to file application of anticipatory bail on mere apprehension of being arrested on
accusation of having committed a non-bailable offence. No arrest should be made because it is lawful for the police
officer to do so. The existence of power to arrest is one thing and the justification for the exercise of it is quite another.
The police officer must be able to justify the arrest apart from his power to do so. This finding of the said judgment
(supra) is contrary to the legislative intention and law which has been declared by a Constitution Bench of this Court in
Sibbia's case (supra).
112. The validity of the restrictions imposed by the Apex Court, namely, that the accused released on anticipatory bail
must submit himself to custody and only thereafter can apply for regular bail. This is contrary to the basic intention and
spirit of Section 438 Code of Criminal Procedure It is also contrary to Article 21 of the Constitution. The test of fairness
and reasonableness is implicit under Article 21 of the Constitution of India. Directing the accused to surrender to
custody after the limited period amounts to deprivation of his personal liberty.
113. It is a settled legal position crystallized by the Constitution Bench of this Court in Sibbia's case (supra) that the
courts should not impose restrictions on the ambit and scope of Section 438 Code of Criminal Procedure which are not
envisaged by the Legislature. The court cannot rewrite the provision of the statute in the garb of interpreting it.
114. It is unreasonable to lay down strict, inflexible and rigid rules for exercise of such discretion by limiting the period
of which an order under this section could be granted. We deem it appropriate to reproduce some observations of the
judgment of the Constitution Bench of this Court in the Sibbia's case (supra).
The validity of that section must accordingly be examined by the test of fairness and reasonableness which is implicit in
Article 21. If the legislature itself were to impose an unreasonable restriction on the grant of anticipatory bail, such a
restriction could have been struck down as being violative of Article 21. therefore, while determining the scope of
Section 438, the court should not impose any unfair or unreasonable limitation on the individual's right to obtain an
order of anticipatory bail. Imposition of an unfair or unreasonable limitation, according to the learned Counsel, would
be violative of Article 21, irrespective of whether it is imposed by legislation or by judicial decision.
xxx xxx xxx
Clause (1) of Section 438 is couched in terms, broad and unqualified. By any known canon of construction, words of
width and amplitude ought not generally to be cut down so as to read into the language of the statute restraints and
conditions which the legislature itself did not think it proper or necessary to impose. This is especially true when the
statutory provision which falls for consideration is designed to secure a valuable right like the right to personal freedom
and involves the application of a presumption as salutary and deep grained in our criminal jurisprudence as the
presumption of innocence."
xxx xxx xxx
I desire in the first instance to point out that the discretion given by the section is very wide.... Now it seems to me that
when the Act is so expressed to provide a wide discretion, ... it is not advisable to lay down any rigid rules for guiding
that discretion. I do not doubt that the rules enunciated by the Master of the Rolls in the present case are useful maxims
in general, and that in general they reflect the point of view from which judges would regard an application for relief. But
I think it ought to be distinctly understood that there may be cases in which any or all of them may be disregarded. If it
were otherwise, the free discretion given by the statute would be fettered by limitations which have nowhere been

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enacted. It is one thing to decide what is the true meaning of the language contained in an Act of Parliament. It is quite a
different thing to place conditions upon a free discretion entrusted by statute to the court where the conditions are not
based upon statutory enactment at all. It is not safe, I think, to say that the court must and will always insist upon certain
things when the Act does not require them, and the facts of some unforeseen case may make the court wish it had kept a
free hand.
xxx xxx xxx
The concern of the courts generally is to preserve their discretion without meaning to abuse it. It will be strange if we
exhibit concern to stultify the discretion conferred upon the courts by law.
115. The Apex Court in Salauddin's case (supra) held that anticipatory bail should be granted only for a limited period
and on the expiry of that duration it should be left to the regular court to deal with the matter is not the correct view.
The reasons quoted in the said judgment is that anticipatory bail is granted at a stage when an investigation is incomplete
and the court is not informed about the nature of evidence against the alleged offender.
116. The said reason would not be right as the restriction is not seen in the enactment and bail orders by the High Court
and Sessions Court are granted under Sections 437 and 439 also at such stages and they are granted till the trial.
117. The view expressed by this Court in all the above referred judgments have to be reviewed and once the anticipatory
bail is granted then the protection should ordinarily be available till the end of the trial unless the interim protection by
way of the grant of anticipatory bail is curtailed when the anticipatory bail granted by the court is cancelled by the court
on finding fresh material or circumstances or on the ground of abuse of the indulgence by the accused.
SCOPE AND AMBIT OF ANTICIPATORY BAIL:
118. A good deal of misunderstanding with regard to the ambit and scope of Section 438 Code of Criminal Procedure
could have been avoided in case the Constitution Bench decision of this Court in Sibbia's case (supra) was correctly
understood, appreciated and applied.
119. This Court in the Sibbia's case (supra) laid down the following principles with regard to anticipatory bail:
a) Section 438(1) is to be interpreted in light of Article 21 of the Constitution of India.
b) Filing of FIR is not a condition precedent to exercise of power under Section 438.
c) Order under Section 438 would not affect the right of police to conduct investigation.
d) Conditions mentioned in Section 437 cannot be read into Section 438.
e) Although the power to release on anticipatory bail can be described as of an "extraordinary" character this would "not
justify the conclusion that the power must be exercised in exceptional cases only." Powers are discretionary to be
exercised in light of the circumstances of each case.
f) Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be issued forthwith and
question ought to be re-examined after hearing. Such ad interim order must conform to requirements of the section and
suitable conditions should be imposed on the applicant.
120. The Law Commission in July 2002 has severely criticized the police of our country for the arbitrary use of power of
arrest which, the Commission said, is the result of the vast discretionary powers conferred upon them by this Code. The
Commission expressed concern that there is no internal mechanism within the police department to prevent misuse of
law in this manner and the stark reality that complaint lodged in this regard does not bring any result. The Commission
intends to suggest amendments in the Criminal Procedure Code and has invited suggestions from various quarters.

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Reference is made in this Article to the 41st Report of the Law Commission wherein the Commission saw 'no
justification' to require a person to submit to custody, remain in prison for some days and then apply for bail even when
there are reasonable grounds for holding that the person accused of an offence is not likely to abscond or otherwise
misuse his liberty. Discretionary power to order anticipatory bail is required to be exercised keeping in mind these
sentiments and spirit of the judgments of this Court in Sibbia's case (supra) and Joginder Kumar v. State of U.P. and
Ors. MANU/SC/0311/1994 : (1994) 4 SCC 260.
Relevant consideration for exercise of the power
121. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are
clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all
circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In
consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and
circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia's case (supra) that the High
Court or the Court of Sessions to exercise their jurisdiction under Section 438 Code of Criminal Procedure by a wise and
careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this
is the legislative mandate which we are bound to respect and honour.
122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before
arrest is made;
ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment
on conviction by a Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice;
iv. The possibility of the accused's likelihood to repeat similar or the other offences.
v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him
or her.
vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly
comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections
34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over
implication in the cases is a matter of common knowledge and concern;
viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely,
no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment,
humiliation and unjustified detention of the accused;
ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the
complainant;
x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be
considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the
prosecution, in the normal course of events, the accused is entitled to an order of bail.
123. The arrest should be the last option and it should be restricted to those exceptional cases where arresting the
accused is imperative in the facts and circumstances of that case.

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124. The court must carefully examine the entire available record and particularly the allegations which have been
directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.
125. These are some of the factors which should be taken into consideration while deciding the anticipatory bail
applications. These factors are by no means exhaustive but they are only illustrative in nature because it is difficult to
clearly visualize all situations and circumstances in which a person may pray for anticipatory bail. If a wise discretion is
exercised by the concerned judge, after consideration of entire material on record then most of the grievances in favour
of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this
jurisdiction only to the judges of the superior courts. In consonance with the legislative intention we should accept the
fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against
the court of Sessions or the High Court is always available.
126. Irrational and Indiscriminate arrest are gross violation of human rights. In Joginder Kumar's case (supra), a three
Judge Bench of this Court has referred to the 3rd report of the National Police Commission, in which it is mentioned
that the quality of arrests by the Police in India mentioned power of arrest as one of the chief sources of corruption in
the police. The report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and
that such unjustified police action accounted for 43.2% of the expenditure of the jails.
127. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative
according to the peculiar facts and circumstances of the case.
128. In case, the State consider the following suggestions in proper perspective then perhaps it may not be necessary to
curtail the personal liberty of the accused in a routine manner. These suggestions are only illustrative and not exhaustive.
1) Direct the accused to join investigation and only when the accused does not cooperate with the investigating agency,
then only the accused be arrested.
2) Seize either the passport or such other related documents, such as, the title deeds of properties or the Fixed Deposit
Receipts/Share Certificates of the accused.
3) Direct the accused to execute bonds; 4) The accused may be directed to furnish sureties of number of persons which
according to the prosecution are necessary in view of the facts of the particular case.
5) The accused be directed to furnish undertaking that he would not visit the place where the witnesses reside so that the
possibility of tampering of evidence or otherwise influencing the course of justice can be avoided.
6) Bank accounts be frozen for small duration during investigation.
129. In case the arrest is imperative, according to the facts of the case, in that event, the arresting officer must clearly
record the reasons for the arrest of the accused before the arrest in the case diary, but in exceptional cases where it
becomes imperative to arrest the accused immediately, the reasons be recorded in the case diary immediately after the
arrest is made without loss of any time so that the court has an opportunity to properly consider the case for grant or
refusal of bail in the light of reasons recorded by the arresting officer.
130. Exercise of jurisdiction under Section 438 of Code of Criminal Procedure is extremely important judicial function
of a judge and must be entrusted to judicial officers with some experience and good track record. Both individual and
society have vital interest in orders passed by the courts in anticipatory bail applications.
131. It is imperative for the High Courts through its judicial academies to periodically organize workshops, symposiums,
seminars and lectures by the experts to sensitize judicial officers, police officers and investigating officers so that they
can properly comprehend the importance of personal liberty vis-o?=-vis social interests. They must learn to maintain
fine balance between the personal liberty and the social interests.

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132. The performance of the judicial officers must be periodically evaluated on the basis of the cases decided by them.
In case, they have not been able to maintain balance between personal liberty and societal interests, the lacunae must be
pointed out to them and they may be asked to take corrective measures in future. Ultimately, the entire discretion of
grant or refusal of bail has to be left to the judicial officers and all concerned must ensure that grant or refusal of bail is
considered basically on the facts and circumstances of each case.
133. In our considered view, the Constitution Bench in Sibbia's case (supra) has comprehensively dealt with almost all
aspects of the concept of anticipatory bail under Section 438 Code of Criminal Procedure A number of judgments have
been referred to by the learned Counsel for the parties consisting of Benches of smaller strength where the courts have
observed that the anticipatory bail should be of limited duration only and ordinarily on expiry of that duration or
standard duration, the court granting the anticipatory bail should leave it to the regular court to deal with the matter.
This view is clearly contrary to the view taken by the Constitution Bench in Sibbia's case (supra). In the preceding
paragraphs, it is clearly spelt out that no limitation has been envisaged by the Legislature under Section 438 Code of
Criminal Procedure The Constitution Bench has aptly observed that "we see no valid reason for rewriting Section 438
with a view, not to expanding the scope and ambit of the discretion conferred on the High Court or the Court of
Session but, for the purpose of limiting it".
134. In view of the clear declaration of law laid down by the Constitution Bench in Sibbia's case (supra), it would not be
proper to limit the life of anticipatory bail. When the court observed that the anticipatory bail is for limited duration and
thereafter the accused should apply to the regular court for bail, that means the life of Section 438 Code of Criminal
Procedure would come to an end after that limited duration. This limitation has not been envisaged by the legislature.
The Constitution Bench in Sibbia's case (supra) clearly observed that it is not necessary to re-write Section 438 Code of
Criminal Procedure therefore, in view of the clear declaration of the law by the Constitution Bench, the life of the order
under Section 438 Code of Criminal Procedure granting bail cannot be curtailed.
135. The ratio of the judgment of the Constitution Bench in Sibbia's case (supra) perhaps was not brought to the notice
of their Lordships who had decided the cases of Salauddin Abdulsamad Shaikh v. State of Maharashtra, K.L. Verma v.
State and Anr., Adri Dharan Das v. State of West Bengal and Sunita Devi v. State of Bihar and Anr. (supra).
136. In Naresh Kumar Yadav v. Ravindra Kumar MANU/SC/8067/2007 : (2008) 1 SCC 632, a two-Judge Bench of
this Court observed "the power exercisable under Section 438 Code of Criminal Procedure is somewhat extraordinary in
character and it should be exercised only in exceptional cases. This approach is contrary to the legislative intention and
the Constitution Bench's decision in Sibbia's case (supra).
137. We deem it appropriate to reiterate and assert that discretion vested in the court in all matters should be exercised
with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion
vested with the court under Section 438 Code of Criminal Procedure should also be exercised with caution and
prudence. It is unnecessary to travel beyond it and subject to the wide power and discretion conferred by the legislature
to a rigorous code of self-imposed limitations.
138. The judgments and orders mentioned in paras 135 and 136 are clearly contrary to the law declared by the
Constitution Bench of this Court in Sibbia's case (supra). These judgments and orders are also contrary to the legislative
intention. The Court would not be justified in re-writing Section 438 Code of Criminal Procedure
139. Now we deem it imperative to examine the issue of per incuriam raised by the learned Counsel for the parties. In
Young v. Bristol Aeroplane Company Limited (1994) All ER 293 the House of Lords observed that 'Incuria' literally
means 'carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this
principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in
ignoratium of a statute or other binding authority. The same has been accepted, approved and adopted by this Court
while interpreting Article 141of the Constitution which embodies the doctrine of precedents as a matter of law.
...In Halsbury's Laws of England (4th Edn.) Vol. 26: Judgment and Orders: Judicial Decisions as Authorities (pp. 297-98,
para 578) per incuriam has been elucidated as under:

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A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of
coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow (Young v.
Bristol Aeroplane Co. Ltd. 1944 KB 718 : (1944) 2 All ER 293 .
In Huddersfield Police Authority v. Watson 1947 KB 842: (1947) 2 All ER 193.; or when it has acted in ignorance of a
House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the
terms of a statute or rule having statutory force.
140. Lord Godard, C.J. in Huddersfield Police Authority v. Watson (1947) 2 All ER 193 observed that where a case or
statute had not been brought to the court's attention and the court gave the decision in ignorance or forgetfulness of the
existence of the case or statute, it would be a decision rendered in per incuriam.
141. This Court in Government of A.P. and Anr. v. B. Satyanarayana Rao (dead) by LRs. and Ors.
MANU/SC/0275/2000 : (2000) 4 SCC 262 observed as under:
The rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the
superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue.
142. In a Constitution Bench judgment of this Court in Union of India v. Raghubir Singh MANU/SC/0619/1989 :
(1989) 2 SCC 754, Chief Justice Pathak observed as under:
The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and
enables an organic development of the law, besides providing assurance to the individual as to the consequence of
transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal
principle in the decisions of a court.
143. In Thota Sesharathamma and Anr. v. Thota Manikyamma (Dead) by LRs. and Ors. MANU/SC/0621/1991 :
(1991) 4 SCC 312 a two Judge Bench of this Court held that the three Judge Bench decision in the case of Mst. Karmi v.
Amru MANU/SC/0480/1971 : (1972) 4 SCC 86 was per incuriam and observed as under:
... It is a short judgment without adverting to any provisions of Section 14(1) or 14(2) of the Act. The judgment neither
makes any mention of any argument raised in this regard nor there is any mention of the earlier decision in Badri
Pershad v. Smt. Kanso Devi. The decision in Mst. Karmi cannot be considered as an authority on the ambit and scope
of Section 14(1) and (2) of the Act.
144. In R. Thiruvirkolam v. Presiding Officer and Anr. MANU/SC/0159/1997 : (1997) 1 SCC 9 a two Judge Bench of
this Court observed that the question is whether it was bound to accept the decision rendered in Gujarat Steel Tubes
Ltd. v. Mazdoor Sabha MANU/SC/0369/1979 : (1980) 2 SCC 593, which was not in conformity with the decision of a
Constitution Bench in P.H. Kalyani v. Air France MANU/SC/0137/1963 : (1964) 2 SCR 104. J.S. Verma, J. speaking
for the court observed as under:
With great respect, we must say that the above-quoted observations in Gujarat Steel at P. 215 are not in line with the
decision in Kalyani which was binding or with D.C. Roy to which the learned Judge, Krishna Iyer, J. was a party. It also
does not match with the underlying juristic principle discussed in Wade. For the reasons, we are bound to follow the
Constitution Bench decision in Kalyani, which is the binding authority on the point.
145. In Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangra and Ors. MANU/SC/0308/2001 : (2001) 4 SCC
448 a Constitution Bench of this Court ruled that a decision of a Constitution Bench of this Court binds a Bench of two
learned Judges of this Court and that judicial discipline obliges them to follow it, regardless of their doubts about its
correctness.
146. A Constitution Bench of this Court in Central Board of Dawoodi Bohra Community v. State of Maharashtra
MANU/SC/1069/2004 : (2005) 2 SCC 673 has observed that the law laid down by this Court in a decision delivered by
a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.

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147. A three-Judge Bench of this Court in Official Liquidator v. Dayanand and Ors. MANU/SC/4591/2008 : (2008) 10
SCC 1 again reiterated the clear position of law that by virtue of Article 141 of the Constitution, the judgment of the
Constitution Bench in State of Karnataka and Ors. v. Umadevi (3) and Ors. MANU/SC/1918/2006 : (2006) 4 SCC 1 is
binding on all courts including this Court till the same is overruled by a larger Bench. The ratio of the Constitution
Bench has to be followed by Benches of lesser strength. In para 90, the court observed as under:
We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number
of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High
Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor
difference in the facts as the ground for doing so. therefore, it has become necessary to reiterate that disrespect to the
constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages
chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial
jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of
the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to
decide as to which of the judgments lay down the correct law and which one should be followed.
148. In Subhash Chandra and Anr. v. Delhi Subordinate Services Selection Board and Ors. MANU/SC/1460/2009 :
(2009) 15 SCC 458, this Court again reiterated the settled legal position that Benches of lesser strength are bound by the
judgments of the Constitution Bench and any Bench of smaller strength taking contrary view is per incuriam. The court
in para 110 observed as under: "Should we consider S. Pushpa v. Sivachanmugavelu MANU/SC/0091/2005 : (2005) 3
SCC 1 to be an obiter following the said decision is the question which arises herein. We think we should. The decisions
referred to hereinbefore clearly suggest that we are bound by a Constitution Bench decision. We have referred to two
Constitution Bench decisions, namely, Marri Chandra Shekhar Rao v. Seth G.S. Medical College (1990) 3 SCC 139 and
E.V. Chinnaiah v. State of A.P. MANU/SC/0960/2004 : (2005) 1 SCC 394. Marri Chandra Shekhar Rao (supra) had
been followed by this Court in a large number of decisions including the three-Judge Bench decisions. S. Pushpa (supra)
therefore, could not have ignored either Marri Chandra Shekhar Rao (supra) or other decisions following the same only
on the basis of an administrative circular issued or otherwise and more so when the constitutional scheme as contained
in Clause (1) of Articles 341 and 342 of the Constitution of India putting the State and Union Territory in the same
bracket. Following Official Liquidator v. Dayanand and Ors. MANU/SC/4591/2008 : (2008) 10 SCC 1 therefore, we
are of the opinion that the dicta in S. Pushpa (supra) is an obiter and does not lay down any binding ratio."
149. The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgment of a
larger strength is binding on a judgment of smaller strength but the judgment of a co-equal strength is also binding on a
Bench of judges of co-equal strength. In the instant case, judgments mentioned in paragraphs 135 and 136 are by two or
three judges of this Court. These judgments have clearly ignored a Constitution Bench judgment of this Court in Sibbia's
case (supra) which has comprehensively dealt with all the facets of anticipatory bail enumerated under Section 438 of
Code of Criminal Procedure Consequently, judgments mentioned in paragraphs 135 and 136 of this judgment are per
incuriam.
150. In case there is no judgment of a Constitution Bench or larger Bench of binding nature and if the court doubts the
correctness of the judgments by two or three judges, then the proper course would be to request Hon'ble the Chief
Justice to refer the matter to a larger Bench of appropriate strength.
151. In the instant case there is a direct judgment of the Constitution Bench of this Court in Sibbia's case (supra) dealing
with exactly the same issue regarding ambit, scope and object of the concept of anticipatory bail enumerated under
Section 438 Code of Criminal Procedure The controversy is no longer res integra. We are clearly bound to follow the
said judgment of the Constitution Bench. The judicial discipline obliges us to follow the said judgment in letter and
spirit.
152. In our considered view the impugned judgment and order of the High Court declining anticipatory bail to the
Appellant cannot be sustained and is consequently set aside.
153. We direct the Appellant to join the investigation and fully cooperate with the investigating agency. In the event of
arrest the Appellant shall be released on bail on his furnishing a personal bond in the sum of Rs. 50,000/- with two
sureties in the like amount to the satisfaction of the arresting officer.

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154. Consequently, this appeal is allowed and disposed of in terms of the aforementioned observations.

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MANU/SC/0881/2019
Criminal Appeal Nos. 816-817 of 2019 (Arising out of SLP (Crl.) Nos. 10051-10052 of 2018)
Appellants: Pradeep Ram

Vs.
Respondent: The State of Jharkhand and Ors.
Ashok Bhushan and K.M. Joseph, JJ.
JUDGMENT
Ashok Bhushan, J.
1. These appeals have been filed against the judgment dated 26.09.2018 of High Court of Jharkhand dismissing the Writ
Petition (Crl.) No. 277 of 2018 and Crl. Misc. Petition No. 1114 of 2016 Under Section 482 Code of Criminal Procedure
filed by the Appellant.
2. Brief facts of the case and sequence of events are: -
2.1 On 11.01.2016, a First Information Report No. 02/2016, Police Station Tandwa was lodged for offences Under
Sections 414, 384, 386, 387, 120-B Indian Penal Code read with Sections 25(1-B)(a), 26, 35 of the Arms Act and Section
17(1) and (2) of the Criminal Law Amendment Act. Apart from Petitioner, there were 11 other named Accused. The
allegations made against the Accused were that Applicant by showing fear of extremist of TPC Group recovered levy
from the contractors, transporters and coal businessman. It was also alleged that on information received from a co-
Accused, a search was also conducted in the house of the Appellant, during which search, an amount of Rs. 57,57,510/-
was recovered from the bag kept in the room of the Appellant alongwith four mobiles. No satisfactory explanation was
given by the Appellant.
2.2 By order dated 10.03.2016, the Appellant was granted regular bail by the High Court after he was taken into custody.
On 10.03.2016, a charge sheet was submitted Under Sections 414, 384, 386, 387, 120-B Indian Penal Code read with
Sections 25(1-B)(a), 26, 35 of the Arms Act and Sections 17(1) and (2) of the Criminal Law Amendment Act. Chief
Judicial Magistrate, Chatra took cognizance of the offences Under Sections 414, 384, 386, 387, 120-B Indian Penal Code
read with Sections 25(1-B)(a), 26, 35 of the Arms Act and Section 17(1) and (2) of the Criminal Law Amendment Act on
11.03.2016. A Crl. M.P. No. 1114 of 2016 was filed by the Appellant on 10.05.2016 in the High Court Under Section
482 Code of Criminal Procedure praying for quashing the entire criminal proceeding including the order taking
cognizance dated 11.03.2016. On 19.09.2016, the Chief Judicial Magistrate framed charges against the Appellant Under
Sections 414, 384, 386, 387, 120-B Indian Penal Code Charges were also framed Under Sections 25(1-B)(a), 26, 35 of the
Arms Act as well as Under Section 17(1) and (2) of the Criminal Law Amendment Act. The High Court passed an
interim order on 15.12.2016 staying the further proceedings in Tandwa P.S. Case No. 2/2016.
2.3 On the prayer made by the Investigating Officer on 09.04.2017, offences Under Sections 16, 17, 20 and 23 of the
Unlawful Activities (Prevention) Act, 1967 were added against the Accused. Central Government issued an order dated
13.02.2018 in exercise of power conferred under Sub-section 5 of Section 6 read with Section 8 of the National
Investigation Agency Act, 2008 suo-moto directing the National Investigation Agency to take up investigation of case
F.I.R. No. 02/2016, in which Sections 16, 17, 20 and 23 of the Unlawful Activities (Prevention) Act, 1967 were added,
which were scheduled offences. In pursuance of the order of the Central Government dated 13.02.2018, National
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Investigation Agency re-registered the First Information Report as FIR No. RC-06/2018/NIA/DLI dated 16.02.2018
under the above noted sections. The Appellant being under custody in some other case, request was made on behalf of
the National Investigating Agency before the Special Judge, NIA, Ranchi on 22.06.2018 praying for issuance of
production warrant. The Special Judge allowed the prayer. Consequently, the Appellant was produced from Chatra Jail
on 25.06.2018 and was remanded to judicial custody by order of Special Judge dated 25.06.2018.
2.4 A Writ Petition (Crl.) No. 277 of 2018 was filed by the Appellant praying for quashing the entire criminal
proceedings in connection with Special NIA Case No. 03 of 2018 including the First Information Report being No. RC-
06/2018/NIA/DLI. A further prayer was also made for quashing the order dated 25.06.2018 remanding the Appellant
to the judicial custody by order of the Judicial Commissioner-cum-Special Judge, NIA, Ranchi. The High Court by the
impugned judgment dated 26.09.2018 dismissed both, the Writ Petition (Crl.) No. 277 of 2018 as well as Crl. M.P. No.
1114 of 2016, aggrieved against which judgment, these appeals have been filed by the Appellant.
3. We have heard Shri Abhinav Mukherji, learned Counsel appearing for the Appellant and Shri Aman Lekhi, learned
Additional Solicitor General for the Union of India. We have also heard learned Counsel appearing for the State of
Jharkhand.
4. Learned Counsel for the Appellant submits that investigation against the Appellant in P.S. Case No. 02 of 2016 having
been completed and charge sheet having been submitted by the investigating agency on 10.03.2016, NIA could not have
registered second F.I. R. on 16.02.2018 being FIR No. RC-06/2018/NIA/DLI. It is submitted that the Special Judge
committed error in passing the order dated 25.06.2018 remanding the Appellant to judicial custody Under Section 167
Code of Criminal Procedure When cognizance has already been taken on 11.03.2016, order could have only been passed
Under Section 309 Code of Criminal Procedure It is submitted that by re-registration of the F.I. R., NIA cannot carry on
any re-investigation into the offence incorporated in the F.I. R. dated 10.03.2016. It is further submitted that Appellant
having been already granted bail on 10.03.2016, he cannot be re-arrested by virtue of addition of new offences Under
Sections 16, 17, 20 and 23 of the Unlawful Activities (Prevention) Act, 1967. The only course open for the NIA was to
file an application for cancellation of the bail dated 10.03.2016. It was only after cancellation of the bail that Appellant
could have been re-arrested or taken into judicial custody.
5. Learned ASG refuting the submissions of the counsel for the Appellant contends that present is not a case of
registration of any second F.I.R. It is submitted that NIA has only re-registered the F.I. R. as per the provisions of
National Investigation Agency Act, 2008. The re-registration of the F.I. R. by NIA cannot be said to be a second F.I.R.
It is further submitted that the mere fact that charge sheet has been submitted in P.S. Case No. 02 of 2016 and
cognizance has been taken by the Chief Judicial Magistrate shall not preclude the NIA from carrying out further
investigation and submit a supplementary report. It is submitted that by virtue of Section 173(8) of Code of Criminal
Procedure, even when report Under Section 173(2) is submitted, the investigation agency can carry on further
investigation and collect oral or documentary evidence and submit a supplementary report. It is further submitted that as
per the NIA Act, when scheduled offence is committed, the investigation is handed over to different investigation
agency. Present is a case where scheduled offences were committed and have already been added in P.S. Case No.
02/2016 for which it is NIA, which has to carry on the investigation as per the order of the Central Government dated
13.02.2018. There is no lack of jurisdiction in the NIA to conduct further investigation and submit a supplementary
report. It is further submitted that NIA has concluded the investigation and already submitted a charge sheet on
21.12.2018. Whenever a scheduled offence is reported, the Central Government has a wide amplitude of power to direct
the NIA to investigate into such offence and while taking over the investigation, the FIR is re-registered, as only the
nomenclature changes. It is further submitted that the bail granted to the Appellant on 10.03.2016 in P.S. Case No. 02 of
2016 cannot enure to the benefit of the Appellant in reference to offences Under Sections 16, 17, 20 and 23 of the
Unlawful Activities (Prevention) Act, 1967. The Appellant had to apply for grant of fresh bail in respect of newly added
offences. It is further submitted that the Special Judge has rightly remanded the Appellant exercising power Under
Section 167 Code of Criminal Procedure, during further investigation by NIA. The mere fact that the cognizance was
taken earlier by Chief Judicial Magistrate cannot preclude the Special Judge to exercise power Under Section 167 Code
of Criminal Procedure for further investigation by NIA.
6. Learned Counsel for the parties in support of their respective submissions placed reliance on various judgments of
this Court as well as judgments of High Courts, which shall be considered while considering the submissions in detail.

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7. From the submissions of the learned Counsel for the parties and the pleadings on the record, following are the issues,
which arise for consideration in these appeals:
(i) Whether in a case where an Accused has been bailed out in a criminal case, in which case, subsequently new offences
are added, is it necessary that bail earlier granted should be cancelled for taking the Accused in custody?
(ii) Whether re-registration of F.I.R. No. RC-06/2018/NIA/DLI is a second F.I. R. and is not permissible there being
already a FIR No. 02/2016 registered at P.S. Tandwa arising out of same incident?
(iii) Whether N.I. A. could conduct any further investigation in the matter when investigation in the P.S. Case No.
02/2016 having already been completed and charge sheet has been submitted on 10.03.2016 with regard to which
cognizance has already been taken by Chief Judicial Magistrate, Chatra on 11.03.2016?
(iv) Whether the order dated 25.06.2018 passed by Judicial Commissioner-cum-Special Judge, NIA, Ranchi remanding
the Appellant to judicial custody is in accordance with law?
(v) Whether the power Under Section 167 Code of Criminal Procedure can be exercised in the present case, where the
cognizance has already been taken by Chief Judicial Magistrate on 11.03.2016 or the Accused could have been remanded
only Under Section 309(2) Code of Criminal Procedure.?
Issue No. 1
8. In the facts of the present case, Appellant was granted bail on 10.03.2016 in F.I.R. No. 02/2016 Under Sections 414,
384, 386, 387, 120-B Indian Penal Code read with Sections 25(1-B)(a), 26, 35 of the Arms Act and Section 17(1) and (2)
of the Criminal Law Amendment Act. In the present case, the Appellant was not arrested by the investigation agency
after addition of Sections 16, 17, 20 and 23 of the Unlawful Activities (Prevention) Act, 1967, rather he was already in
jail in connection with some other case and an application was filed in the Court of Special Judge by the prosecution
praying for production warrant, which application having been allowed, the Appellant was produced in the Court on
26.06.2018 and was remanded in judicial custody.
9. The question, as to whether when an Accused is bailed out in a criminal case, in which new offences have been added,
whether for arresting the Accused, it is necessary to get the bail cancelled, has arisen time and again, there are divergent
views of different High Courts on the above question. On one side, the High Courts have taken the view that for
arresting the Accused, who is already on bail, in event of addition of new offences, the earlier bail need to be cancelled
whereas the other line of opinion is that for new offences Accused has to obtain a fresh bail order and the earlier bail
order shall not enure to the benefit of the Accused.
10. Learned Counsel for the parties have also relied on several judgments of different High Courts in regard to the
circumstance when new cognizable and non-bailable offences are added. We may briefly refer to few of the decisions of
the High Courts in the above regard. Patna High Court in Sita Ram Singh and Anr. v. State of Bihar,
MANU/BH/0270/2002 : 2002 (2) BLJR 859 had considered the case where case was initially instituted Under Section
307 Indian Penal Code FIR was lodged on 24.08.2000 Under Section 307 Indian Penal Code. The Accused was granted
bail on 01.09.2000. Thereafter, due to death of the injured on 06.09.2000, Section 302 Indian Penal Code was added.
Informant had applied for cancellation of the bail. The bail earlier granted was cancelled in view of subsequent
development. In the above context, Patna High Court relying on judgment of this Court in Prahlad Singh Bhati v. NCT,
Delhi and Another, MANU/SC/0193/2001 : (2001) 4 SCC 280 held that on a serious change in the nature of the
offence, the Accused becomes disentitled to the liberty granted to him in relation to a minor offence and in such
circumstances, the correct approach of the Court concerned would be to apply its mind afresh as to whether the
Accused is entitled for grant of bail, in the changed circumstances.
11. Rajasthan High Court in Sukhpal v. State of Rajasthan, MANU/RH/1234/1988 : 1988 (1) RLW 283 has also made
following observations in paragraph No. 4:

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4. I am, therefore, of the opinion that the legal position is beyond doubt that once an Accused is ordered to be released
on bail under any of the Section of Chapter XXXIII of the Code of Criminal Procedure the police had no power to
arrest him by merely adding another Section which may be non-bailable. The police must seek an order from the Court
for cancellation of bail granted to a person.
12. Another judgment of Madras High Court in Dhivan v. State, MANU/TN/0528/2010 : (2010) 2 MWN (Cr.) also
took the same view. In paragraph No. 11, following was observed:
11. In view of the above discussions, I have no hesitation to hold that simply because a penal provision is added in the
case in respect of a serious non-bailable offence, the bail granted earlier shall not automatically stand cancelled and
therefore, the police shall not have the power to re-arrest the Accused until the bail granted earlier is cancelled by way of
a positive order by the appropriate court..
13. There are few decisions of Allahabad High Court also where the issue has been addressed. One judgment of the
High Court namely Bijendra and Ors. v. State of U.P. and Ors., MANU/UP/0264/2006 : (2006) CriLJ 2253 has also
been referred to and relied in the impugned judgment. In paragraph No. 25, following observations have been made by
Allahabad High Court:
25. After hearing the learned Counsels for the both sides at a great length and after analyzing Section 437 Code of
Criminal Procedure it transpires that Section 437 relates with bail in cases of non-bailable offence by the magistrate. So
far as the first contention which the learned Counsel for the applicants advanced, that because the bail has been granted
in the same crime number and therefore by mere change of Section Accused cannot be sent to jail is concerned it is to
be noted that case crime number is nowhere mentioned in the aforesaid section, which is the number of police for
identification of the case and is a procedural number of the police station. Crime number has no relation with bail under
Cr. P.C. In this view of the matter the contention of learned Counsel for the Applicant cannot be accepted and is
therefore rejected.
Coming to the second contention of the learned Counsel for the Applicant that there is no bar for this Court to direct
the Magistrate to accept fresh bail bonds for the newly added offence triable by Court of Session's it is noted that this
direction will amount to asking the Magistrate to do something de-hors the law. The contention is devoid of merit.
Section 437 Code of Criminal Procedure relates to an offence, therefore, on addition of a new offence, the Accused is
required to appear before the court and seek bail. His bail cannot be considered unless and until he surrenders and is in
custody in that offence. Any Accused who is not in custody in an offence cannot be granted bail. Custody is sine qua
non for consideration of bail prayer. Consequently when the Accused is guilty of an added offence and is not on bail, he
cannot be allowed to furnish bond without being in custody in that offence. For getting bail in newly added offences the
Accused has to surrendered in that offence..
14. In another case of Allahabad High Court in Bankey Lal Sharma v. State of U.P. and Ors., MANU/UP/0441/2008 :
(2008) CriLJ 3779 rejecting the submission that the Applicant should not be required to obtain fresh bail on addition of
new offences, following was observed in paragraph No. 14:
14. At this stage, learned Counsel for the Applicant submits that the Applicant should not be required to obtain fresh
bail under the newly added section. This relief cannot be granted in view of the decision of the Apex Court in Hamida v.
Rashid alias Rasheed and Ors. MANU/SC/7377/2007 : (LVIII)2007 ACC 577, wherein it has been mentioned that
without surrender prayer for bail in the newly added Section cannot be considered.
15. Learned Counsel for the Appellant has also relied on judgment of High Court of Jammu & Kashmir in CRMC No.
270/2018 - Fayaz Ahmad Khan and Ors. v. State, decided on 03.10.2018, where Jammu and Kashmir High Court
relying on judgment of this Court in Manoj Suresh Jadhav and Ors. (supra) took the view that simply because a penal
provision is added in respect of a serious non-bailable offence, the bail granted earlier shall not automatically stand
cancelled and therefore, the police shall not have the power to re-arrest the Accused until the bail granted earlier is
cancelled by way of a positive order by the appropriate court.
16. We may also notice a pertinent observation made by this Court in Prahlad Singh Bhati (supra). In the above case, a
case was registered Under Sections 306 and 498-A Indian Penal Code Application for anticipatory bail was dismissed,

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however, while dismissing the application, the Additional Sessions Judge had observed that if on facts a case Under
Section 302 is made out against the Accused, State shall be at liberty to arrest the Accused. After investigation, charge
sheet was filed Under Sections 302, 406 and 498-A. The Accused was directed to appear before the Magistrate since he
did not appear, non-bailable warrants were issued. The Accused had filed an application Under Section 482 Code of
Criminal Procedure in the High Court. Subsequently, the Accused appeared before the Magistrate, he was admitted on
bail even in a case Under Section 302 Indian Penal Code. The revision petition was dismissed by the High Court against
the order releasing the Accused on bail. The complainant had approached this Court. In paragraph Nos. 4 and 9,
following observations have been made by this Court:
4. From the facts, as narrated in the appeal, it appears that even for an offence punishable Under Section 302 Indian
Penal Code, the Respondent-Accused was never arrested and he manipulated the prevention of his arrest firstly, by
obtaining an order in terms of Section 438 of the Code and subsequently by a regular bail Under Section 437 of the
Code from a Magistrate.
9. ..With the change of the nature of the offence, the Accused becomes disentitled to the liberty granted to him in
relation to a minor offence, if the offence is altered for an aggravated crime..
17. This Court in Hamida v. Rashid alias Rasheed and Others, MANU/SC/7377/2007 : (2008) 1 SCC 474 held that an
Accused after addition of serious non-cognizable offence is required to surrender and apply for bail for newly added
offences. It is, thus, clear that the bail granted to an Accused earlier to addition of new non-bailable offence shall not
enure to the benefit of the Accused insofar as newly added offences are concerned and he is required to surrender and
obtain a bail with regard to newly added offences to save him from arrest.
18. Whether after addition of new non-bailable offence, police authority can straightaway arrest the Accused, who is
already granted bail by the Court, in reference to offences prior to addition of new offences or the police is to necessarily
obtain an order from the Court either of cancellation of the bail or permission to arrest the Accused in changed
circumstances are questions where different views have been expressed by different High Courts. In the present case, the
Appellant was not arrested by the police after addition of offences under the Unlawful Activities (Prevention) Act, 1967,
rather the police authorities had made an application before the Court for issue of production warrant since the Accused
was already in custody in jail in reference to another case.
19. We may refer to the relevant provisions of the Code of Criminal Procedure regarding grant of bail. Chapter XXXIII
of the Code of Criminal Procedure, Sections 436 to 439 deals with bail. Section 437 deals with the provision when bails
can be taken in case of non-bailable offence. Section 437(5), which is relevant for the present controversy is as follows:
(5) Any Court which has released a person on bail under Sub-section (1) or Sub-section (2), may, if it considers it
necessary so to do, direct that such person be arrested and commit him to custody.
20. Section 439 deals with special powers of High Court or Court of Session regarding bail. Section 439(2) is to the
following effect:
(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be
arrested and commit him to custody.
21. Both Sections 437(5) and 439(2) empowers the Court to arrest an Accused and commit him to custody, who has
been released on bail under Chapter XXXIII. There may be numerous grounds for exercise of power Under Sections
437(5) and 439(2). The principles and grounds for cancelling a bail are well settled, but in the present case, we are
concerned only with one aspect of the matter, i.e., a case where after Accused has been granted the bail, new and serious
offences are added in the case. A person against whom serious offences have been added, who is already on bail can very
well be directed to be arrested and committed to custody by the Court in exercise of power Under Sections 437(5) and
439(2). Cancelling the bail granted to an Accused and directing him to arrest and taken into custody can be one course
of the action, which can be adopted while exercising power Under Sections 437(5) and 439(2), but there may be cases
where without cancelling the bail granted to an Accused, on relevant consideration, Court can direct the Accused to be
arrested and committed to custody. The addition of serious offences is one of such circumstances, under which the

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Court can direct the Accused to be arrested and committed to custody despite the bail having been granted with regard
to the offences with which he was charged at the time when bail was considered and granted.
22. One of the judgments, which needs to be noticed in the above reference is Hamida v. Rashid alias Rasheed and
Others (supra). In the above case, the Accused was granted bail for offences Under Sections 324, 352 and 506 Indian
Penal Code. The victim succumbed to his injuries in the night intervening 16.06.2005 and 17.06.2005. The offence
thereafter was converted into Section 304 Indian Penal Code. An application was filed in the High Court by the Accused
to permit them to remain on same bail even after conversion of the offence into one Under Section 304 Indian Penal
Code, which was allowed by the High Court. The complainant filed an appeal by special leave in this Court against the
judgment of the Allahabad High Court. This Court allowed the appeal and set aside the order of the High Court and
directed the Accused to be taken into custody with liberty to apply for bail for the offences for which he was charged
before proper Court in accordance with law. This Court further held that Accused could apply for bail afresh after the
offence had been converted into one Under Section 304 Indian Penal Code. This Court laid down following in
paragraph Nos. 10, 11 and 12:
10. In the case in hand, the Respondents-Accused could apply for bail afresh after the offence had been converted into
one Under Section 304 Indian Penal Code. They deliberately did not do so and filed a petition Under Section 482 Code
of Criminal Procedure in order to circumvent the procedure whereunder they would have been required to surrender as
the bail application could be entertained and heard only if the Accused were in custody. It is important to note that no
order adverse to the Respondents-Accused had been passed by any court nor was there any miscarriage of justice or any
illegality. In such circumstances, the High Court committed manifest error of law in entertaining a petition Under
Section 482 Code of Criminal Procedure and issuing a direction to the subordinate court to accept the sureties and bail
bonds for the offence Under Section 304 Indian Penal Code. The effect of the order passed by the High Court is that
the Accused after getting bail in an offence Under Sections 324, 352 and 506 Indian Penal Code on the very day on
which they were taken into custody, got an order of bail in their favour even after the injured had succumbed to his
injuries and the case had been converted into one Under Section 304 Indian Penal Code without any court examining
the case on merits, as it stood after conversion of the offence. The procedure laid down for grant of bail Under Section
439 Code of Criminal Procedure, though available to the Respondents-Accused, having not been availed of, the exercise
of power by the High Court Under Section 482 Code of Criminal Procedure is clearly illegal and the impugned order
passed by it has to be set aside.
11. Learned Counsel for the Appellant has submitted that charge Under Section 302 Indian Penal Code has been framed
against the Respondents-Accused by the trial court and some subsequent orders were passed by the High Court by
which the Accused were ordered to remain on bail for the offence Under Section 302 read with Section 34 Indian Penal
Code on furnishing fresh sureties and bail bonds only on the ground that they were on bail in the offence Under Section
304 Indian Penal Code. These orders also deserve to be set aside on the same ground.
12. In the result, the appeal is allowed. The impugned order dated 1-7-2005 passed by the High Court and all other
subsequent orders whereby the Respondents-Accused were directed to remain on bail for the offence Under Section 302
read with Section 34 Indian Penal Code on furnishing fresh sureties and bail bonds are set aside. The Respondents-
Accused shall be taken into custody forthwith. It is, however, made clear that it will be open to the Accused-
Respondents to apply for bail for the offences for which they are charged before the appropriate court and in
accordance with law.
23. We may notice one more judgment of this Court reported in Mithabhai Pashabhai Patel and others v. State of
Gujarat, MANU/SC/0858/2009 : (2009) 6 SCC 332. Two Judge Bench of this Court in paragraph 18 laid down
following:
18. The Appellants had been granted bail. They are not in custody of the court. They could not be taken in custody
ordinarily unless their bail was not (sic) cancelled. The High Court, in our opinion, was not correct in holding that as
further investigation was required, Sub-section (2) of Section 167 of the Code gives ample power for grant of police
remand.

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24. What this Court said in the above case is that Accused who have been granted bail and are not in custody could not
be taken in custody ordinarily unless their bail was not cancelled. Can from the above observation it can be held that
unless the bail earlier granted is cancelled the Court has no power to direct the Accused to be taken into custody.
25. We may have again to look into provisions of Sections 437(5) and 439(2) of Code of Criminal Procedure Sub-section
(5) of Section 437 of Code of Criminal Procedure uses expression 'if it considers it necessary so to do, direct that such
person be arrested and commit him to custody'. Similarly, Sub-section (2) of Section 439 of Code of Criminal Procedure
provides: 'may direct that any person who has been released on bail under this Chapter be arrested and commit him to
custody'. A plain reading of the aforesaid provisions indicates that provision does not mandatorily provide that the Court
before directing arrest of such Accused who has already been granted bail must necessary cancel his earlier bail. A
discretion has been given to the Court to pass such orders to direct for such person be arrested and commit him to the
custody which direction may be with an order for cancellation of earlier bail or permission to arrest such Accused due to
addition of graver and non-cognizable offences. Two Judge Bench judgment in Mithabhai Pashabhai Patel (supra) uses
the word 'ordinarily' in paragraph 18 of the judgment which cannot be read as that mandatorily bail earlier granted to the
Accused has to be cancelled before Investigating Officer to arrest him due to addition of graver and non-cognizable
offences.
26. Learned Counsel for the Appellant has relied on an order of this Court dated 07.05.2018 in SLP (Crl.) No. 10179 of
2017 - Manoj Suresh Jadhav and Ors. v. The State of Maharashtra. In the above case, the Petitioners were granted bail
for offence punishable Under Section 509 read with Section 34 Indian Penal Code. During the course of investigation,
the police added another offence Under Section 376 Indian Penal Code and re-arrested the Accused. The Petitioners
filed writ petition before the High Court, which was dismissed. This Court in the above case while disposing the special
leave petition observed as under:
We have heard learned Counsel appearing for the parties and perused the record.
It is not permissible for the Respondent-State to simply re-arrest the Petitioners by ignoring order dated 02.06.2016
passed by the learned Additional Sessions Judge, Pune, which was in force at that time.
We direct that the Petitioners shall be released on bail on the same condition/s as imposed in the aforesaid order dated
02.06.2016 by the learned Sessions Judge, Pune.
Having regard to the provision of Section 439(2) of the Code of Criminal Procedure, the Respondent-State is at liberty
to apply for cancellation of bail and seek the custody of the Petitioners-Accused.
With the aforesaid directions, the special leave petition is disposed of.
27. Relying on the above said order, learned Counsel for the Appellant submits that Respondent State ought to get first
the order dated 10.03.2016 granting bail to Appellant cancelled before seeking custody of the Appellant. It may be true
that by mere addition of an offence in a criminal case, in which Accused is bailed out, investigating authorities itself may
not proceed to arrest the Accused and need to obtain an order from the Court, which has released the Accused on the
bail. It is also open for the Accused, who is already on bail and with regard to whom serious offences have been added
to apply for bail in respect of new offences added and the Court after applying the mind may either refuse the bail or
grant the bail with regard to new offences. In a case, bail application of the Accused for newly added offences is rejected,
the Accused can very well be arrested. In all cases, where Accused is bailed out Under Orders of the Court and new
offences are added including offences of serious nature, it is not necessary that in all cases earlier bail should be cancelled
by the Court before granting permission to arrest an Accused on the basis of new offences. The power Under Sections
437(5) and 439(2) are wide powers granted to the court by the Legislature under which Court can permit an Accused to
be arrested and commit him to custody without even cancelling the bail with regard to earlier offences. Sections 437(5)
and 439(2) cannot be read into restricted manner that order for arresting the Accused and commit him to custody can
only be passed by the Court after cancelling the earlier bail.
28. Coming back to the present case, the Appellant was already into jail custody with regard to another case and the
investigating agency applied before Special Judge, NIA Court to grant production warrant to produce the Accused
before the Court. The Special Judge having accepted the prayer of grant of production warrant, the Accused was

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produced before the Court on 26.06.2018 and remanded to custody. Thus, in the present case, production of the
Accused was with the permission of the Court. Thus, the present is not a case where investigating agency itself has taken
into custody the Appellant after addition of new offences rather Accused was produced in the Court in pursuance of
production warrant obtained from the Court by the investigating agency. We, thus do not find any error in the
procedure which was adopted by the Special Judge, NIA Court with regard to production of Appellant before the Court.
In the facts of the present case, it was not necessary for the Special Judge to pass an order cancelling the bail dated
10.03.2016 granted to the Appellant before permitting the Accused Appellant to be produced before it or remanding
him to the judicial custody.
29. In view of the foregoing discussions, we arrive at following conclusions in respect of a circumstance where after
grant of bail to an Accused, further cognizable and non-bailable offences are added:
(i) The Accused can surrender and apply for bail for newly added cognizable and non-bailable offences. In event of
refusal of bail, the Accused can certainly be arrested.
(ii) The investigating agency can seek order from the court Under Section 437(5) or 439(2) of Code of Criminal
Procedure for arrest of the Accused and his custody.
(iii) The Court, in exercise of power Under Section 437(5) or 439(2) of Code of Criminal Procedure, can direct for taking
into custody the Accused who has already been granted bail after cancellation of his bail. The Court in exercise of power
Under Section 437(5) as well as Section 439(2) can direct the person who has already been granted bail to be arrested
and commit him to custody on addition of graver and non-cognizable offences which may not be necessary always with
order of cancelling of earlier bail.
(iv) In a case where an Accused has already been granted bail, the investigating authority on addition of an offence or
offences may not proceed to arrest the Accused, but for arresting the Accused on such addition of offence or offences it
need to obtain an order to arrest the Accused from the Court which had granted the bail.
30. The issue No. 1 is answered accordingly.
Issue Nos. 2 and 3
31. The Central Government in exercise of its power under Sub-section 5 of Section 6 read with Section 8 of the
National Investigation Agency Act, 2008 passed following order:
F. No. 11011/08/2018/NIA
Government of India
Ministry of Home Affairs
CTCR Division
North Block,
New Delhi
Dated, the 13th February, 2018
ORDER
Whereas, the Central Government has received information regarding registration of a Case FIR No. 02/2016 dated
11.01.2016 at Tandwa PS, District Chatra, Jharkhand under section 414, 384, 386, 387, 120B of the Indian Penal Code,
Sections 25(1-B)(a), 26, 35 of Arms Act and Section 17(1)(2) of Criminal Law Amendment Act relating to incidents of
extortion/levy collection/money laundering by the Maoist cadres in the LWE affected States like Jharkhand and Bihar.
And whereas, Sections 16, 17, 20, 23 of the Unlawful Activities (Prevention) Act, 1967 were added later during the
course of investigation.

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And whereas, the Central Government having regard to the gravity of the said offence is of the opinion that the offence
involved is a scheduled offence which is required to be investigated by the National Investigation Agency in accordance
with the National Investigation Agency Act, 2008.
Now, therefore, in exercise of the powers conferred under Sub-section 5 of Section 6 read with Section 8 of the
National Investigation Agency Act, 2008, the Central Government hereby suo-motu directs the National Investigation
Agency to take up investigation of the aforesaid case.
Sd/- Illegible
(Dharmender Kumar)
Under Secretary to the Government of India
32. The NIA, which registered the FIR No. RC-06/2018/NIA/DLI dated 16.02.2018, in pursuance of the order of the
Central Government dated 13.02.2018, the submission which has been made by the learned Counsel for the Appellant is
that the FIR dated 16.02.2018 is a second FIR, hence could not have been registered. It is submitted that with regard to
one incident only one FIR can be registered and registration of second FIR is illegal. learned Counsel for the Appellant
in support of his submission has placed reliance on judgments of this Court in T.T. Antony v. State of Kerala and
Others, MANU/SC/0365/2001 : (2001) 6 SCC 181; Babubhai v. State of Gujarat and Ors., MANU/SC/0643/2010 :
(2010) 12 SCC 254; Chirra Shivraj v. State of Andhra Pradesh, MANU/SC/0992/2010 : (2010) 14 SCC 444 and
Amitbhai Anilchandra Shah v. Central Bureau of Investigation & Anr., MANU/SC/0329/2013 : (2013) 6 SCC 348.
33. In T.T. Antony (supra) with regard to an occurrence which took place on 25.11.1994 - Crime No. 353 of 1994 and
Crime No. 354 of 1994 were registered at Kuthuparamba Police Station in District Kannur. The State Government
appointed the commission of inquiry under Commissions of Inquiry Act, 1952, which submitted a report on 27.05.1997.
The Government accepted the report of the Commission. As a follow up action, the Additional Chief Secretary to the
Government of Kerala wrote to the Director General of Police regarding acceptance of the report of the Commission
by the Government and directed that legal action be taken against those responsible on the basis of the findings of the
Commission. The Director General of Police issued orders to the Inspector General of Police on 02.07.1997 to register
a case immediately and have the same investigated by a senior officer. On 04.07.1997 the Inspector General of Police
noted that firing without jurisdiction by which people were killed amounted to murder and issued direction to the
Station House Officer to register a case under the appropriate Sections and forward the investigation copy of the FIR to
the Deputy Inspector General of Police. Subsequently, another case was registered as Crime No. 268 of 1997, which was
challenged by filing a writ petition before the Kerala High Court. Learned Single Judge directed for re-investigation by
CBI. The Division Bench on appeal directed fresh investigation by the State police headed by one of the three senior
officers instead of investigation by CBI. Appeal was filed against the said judgment in this Court. One of the questions,
which was noted for consideration by this Court in para 15(i) is as follows:
15. On these contentions, four points arise for determination:
(i) whether registration of a fresh case, Crime No. 268 of 1997, Kuthuparamba Police Station on the basis of the letter of
the DGP dated 2-7-1997 which is in the nature of the second FIR Under Section 154 Code of Criminal Procedure, is
valid and it can form the basis of a fresh investigation;
xxxxxxxxxxx
34. This Court laid down that as per the scheme of Code of Criminal Procedure only the earliest or the first information
report in regard to the commission of a cognizable offence satisfies the requirements of FIR and there can be no second
F.I.R. In paragraph No. 20, following has been laid down:
20. From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162,
169, 170 and 173 Code of Criminal Procedure only the earliest or the first information in regard to the commission of a
cognizable offence satisfies the requirements of Section 154 Code of Criminal Procedure Thus there can be no second
FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the
same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt
of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering

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the FIR in the station house diary, the officer in charge of a police station has to investigate not merely the cognizable
offence reported in the FIR but also other connected offences found to have been committed in the course of the same
transaction or the same occurrence and file one or more reports as provided in Section 173 Code of Criminal Procedure.
35. The same principle has been reiterated in Babubhai v. State of Gujarat (supra) and Chirra Shivraj v. State of Andhra
Pradesh (supra). This Court in Amitbhai Anilchandra Shah v. Central Bureau of Investigation (supra) had again occasion
to consider the legality of second FIR. After reviewing the earlier decisions under the heading "legal aspects as to
permissibility/impermissibility of second FIR". This Court laid down following in paragraph Nos. 36 and 37:
36. Now, let us consider the legal aspects raised by the Petitioner Amit Shah as well as CBI. The factual details which we
have discussed in the earlier paragraphs show that right from the inception of entrustment of investigation to CBI by
order dated 12-1-2010 till filing of the charge-sheet dated 4-9-2012, this Court has also treated the alleged fake encounter
of Tulsiram Prajapati to be an outcome of one single conspiracy alleged to have been hatched in November 2005 which
ultimately culminated in 2006. In such circumstances, the filing of the second FIR and a fresh charge-sheet for the same
is contrary to the provisions of the Code suggesting that the Petitioner was not being investigated, prosecuted and tried
"in accordance with law".
37. This Court has consistently laid down the law on the issue interpreting the Code, that a second FIR in respect of an
offence or different offences committed in the course of the same transaction is not only impermissible but it violates
Article 21 of the Constitution. In T.T. Antony3, this Court has categorically held that registration of second FIR (which
is not a cross-case) is violative of Article 21 of the Constitution. The following conclusion in paras 19, 20 and 27 of that
judgment are relevant which read as under: (SCC pp. 196-97 & 200)
19. The scheme of Code of Criminal Procedure is that an officer in charge of a police station has to commence
investigation as provided in Section 156 or 157 Code of Criminal Procedure on the basis of entry of the first information
report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis
of the evidence collected, he has to form an opinion Under Section 169 or 170 Code of Criminal Procedure, as the case
may be, and forward his report to the Magistrate concerned Under Section 173(2) Code of Criminal Procedure
However, even after filing such a report, if he comes into possession of further information or material, he need not
register a fresh FIR; he is empowered to make further investigation, normally with the leave of the court, and where
during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with
one or more further reports; this is the import of Sub-section (8) of Section 173 Code of Criminal Procedure.
20. From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162,
169, 170 and 173 Code of Criminal Procedure only the earliest or the first information in regard to the commission of a
cognizable offence satisfies the requirements of Section 154 Code of Criminal Procedure Thus there can be no second
FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the
same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt
of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering
the FIR in the station house diary, the officer in charge of a police station has to investigate not merely the cognizable
offence reported in the FIR but also other connected offences found to have been committed in the course of the same
transaction or the same occurrence and file one or more reports as provided in Section 173 Code of Criminal Procedure.
***
27. A just balance between the fundamental rights of the citizens Under Articles 19 and 21 of the Constitution and the
expansive power of the police to investigate a cognizable offence has to be struck by the court. There cannot be any
controversy that Sub-section (8) of Section 173 Code of Criminal Procedure empowers the police to make further
investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the
Magistrate. In Narang case it was, however, observed that it would be appropriate to conduct further investigation with
the permission of the court. However, the sweeping power of investigation does not warrant subjecting a citizen each
time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences,
consequent upon filing of successive FIRs whether before or after filing the final report Under Section 173(2) Code of
Criminal Procedure It would clearly be beyond the purview of Sections 154 and 156 Code of Criminal Procedure, nay, a
case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on

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the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable
offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the
first FIR either investigation is under way or final report Under Section 173(2) has been forwarded to the Magistrate,
may be a fit case for exercise of power Under Section 482 Code of Criminal Procedure or Under Articles 226/227 of the
Constitution.
The above referred declaration of law by this Court has never been diluted in any subsequent judicial pronouncements
even while carving out exceptions.
36. Paragraph 58.1 to 58.10 contains the summary of judgments. In paragraph Nos. 58.3 and 58.4 following has been
laid down:
58.3. Even after filing of such a report, if he comes into possession of further information or material, there is no need
to register a fresh FIR, he is empowered to make further investigation normally with the leave of the court and where
during further investigation, he collects further evidence, oral or documentary, he is obliged to forward the same with
one or more further reports which is evident from Sub-section (8) of Section 173 of the Code. Under the scheme of the
provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of the Code, only the earliest or the first information in
regard to the commission of a cognizable offence satisfies the requirements of Section 154 of the Code. Thus, there can
be no second FIR and, consequently, there can be no fresh investigation on receipt of every subsequent information in
respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable
offences.
58.4. Further, on receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or
offences and on entering FIR in the station house diary, the officer in charge of the police station has to investigate not
merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in
the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 of the
Code. Sub-section (8) of Section 173 of the Code empowers the police to make further investigation, obtain further
evidence (both oral and documentary) and forward a further report(s) to the Magistrate. A case of fresh investigation
based on the second or successive FIRs not being a counter-case, filed in connection with the same or connected
cognizable offence alleged to have been committed in the course of the same transaction and in respect of which
pursuant to the first FIR either investigation is underway or final report Under Section 173(2) has been forwarded to the
Magistrate, is liable to be interfered with by the High Court by exercise of power Under Section 482 of the Code or
Under Articles 226/227 of the Constitution.
37. Thus, from the above discussions, it is clear that there cannot be any dispute to the proposition that second FIR with
regard to same offences is barred. But whether in the present case, FIR dated 16.02.2018 registered by NIA, can be said
to be second FIR. Before answering the above question, we need to look into the scheme of the NIA Act, 2008.
38. NIA Act, 2008 was enacted to constitute an investigation agency at the national level to investigate and prosecute
offences affecting the sovereignty, security and integrity of India, security of State, friendly relations with foreign States
and offences under Acts enacted to implement international treaties, agreements, conventions and resolutions of the
United Nations, its agencies and other international organisations and for matters connected therewith or incidental
thereto.
39. Sections 3 to 5 of the Act deal with National Investigation Agency. Chapter III deals with investigation by the
National Investigation Agency. Sections 6 to 8, which are relevant for the present case are as follows:
6. Investigation of Scheduled Offences.-(1) On receipt of information and recording thereof Under Section 154 of the
Code relating to any Scheduled Offence the officer-in-charge of the police station shall forward the report to the State
Government forthwith.
(2) On receipt of the report under Sub-section (1), the State Government shall forward the report to the Central
Government as expeditiously as possible.

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(3) On receipt of report from the State Government, the Central Government shall determine on the basis of
information made available by the State Government or received from other sources, within fifteen days from the date
of receipt of the report, whether the offence is a Scheduled Offence or not and also whether, having regard to the
gravity of the offence and other relevant factors, it is a fit case to be investigated by the Agency.
(4) Where the Central Government is of the opinion that the offence is a Scheduled Offence and it is a fit case to be
investigated by the Agency, it shall direct the Agency to investigate the said offence.
(5) Notwithstanding anything contained in this section, if the Central Government is of the opinion that a Scheduled
Offence has been committed which is required to be investigated under this Act, it may, suo motu, direct the Agency to
investigate the said offence.
(6) Where any direction has been given under Sub-section (4) or Sub-section (5), the State Government and any police
officer of the State Government investigating the offence shall not proceed with the investigation and shall forthwith
transmit the relevant documents and records to the Agency.
(7) For the removal of doubts, it is hereby declared that till the Agency takes up the investigation of the case, it shall be
the duty of the officer-in-charge of the police station to continue the investigation.
7. Power to transfer investigation to State Government.-While investigating any offence under this Act, the Agency,
having regard to the gravity of the offence and other relevant factors, may-
(a) if it is expedient to do so, request the State Government to associate itself with the investigation; or
(b) with the previous approval of the Central Government, transfer the case to the State Government for investigation
and trial of the offence.
8. Power to investigate connected offences.- While investigating any Scheduled Offence, the Agency may also investigate
any other offence which the Accused is alleged to have committed if the offence is connected with the Scheduled
Offence.
40. Further, Under Section 6, Central Government has to constitute such Courts and by virtue of Sub-section (1) of
Section 13 provides that:
Notwithstanding anything contained in the Code, every Scheduled Offence investigated by the Agency shall be tried only
by the Special Court within whose local jurisdiction it was committed.
41. The Schedule of the Act, Item No. 2 mentioned "The Unlawful Activities (Prevention) Act, 1967". Thus, any offence
under Unlawful Activities (Prevention) Act, 1967 is a scheduled offence. When the offences under the Unlawful
Activities (Prevention) Act, 1967 were added in case Crime No. 02/2016 and that the Central Government order issued
in exercise of its power under Sub-section 5 of Section 6 by entrusting the investigation to NIA, NIA is competent to
investigate the offence and submit a supplementary report.
42. Before proceeding further, we may notice few features of the present case, which are necessary to be noticed. As
noticed above, a charge sheet in the case Crime No. 02/2016 was submitted by the investigating agency on 10.03.2016
and cognizance was taken on 11.03.2016. The offences under Unlawful Activities (Prevention) Act, 1967 were added on
09.04.2017. Charges were framed on 19.09.2016, offences under Unlawful Activities (Prevention) Act, 1967 were added
for the first time on 09.04.2017, thus, there was no occasion for investigation of offences under Unlawful Activities
(Prevention) Act, 1967 prior to April, 2017. The charge sheet dated 10.03.2016 and charges framed on 19.09.2016 were
not with respect to offences under Unlawful Activities (Prevention) Act, 1967, thus, when the Central Government
directed the NIA to investigate the offence under scheduled offences, NIA was fully competent to investigate the
offences and submit a supplementary report. Present is not a case where any charges for offences punishable under the
Unlawful Activities (Prevention) Act, 1967 were available prior to April, 2017, thus, NIA was fully competent to
investigate further in the case as per the directions issued by the Central Government vide order dated 13.02.2018.

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43. Sub-section (6) of Section 6 prohibits State Government or any police officer of the State Government to proceed
with the investigation. In the present case, when order was issued by Central Government on 13.02.2018, it was not
competent for police officer of the State Government to proceed with the investigation. We, thus, are of the opinion
that FIR, which was re-registered by NIA on 16.02.2018 cannot be held to be second FIR of the offences rather it was
re-registration of the FIR to give effect to the provisions of the NIA Act and re-registration of the FIR is only
procedural Act to initiate the investigation and the trial under the NIA Act. The re-registration of the FIR, thus, is
neither barred nor can be held that it is second FIR.
44. As far as the submissions of the learned Counsel for the Appellant that NIA cannot conduct any investigation or
submit any report, since investigation was already completed and charge sheet was submitted, the charge sheet was
submitted on 16.03.2016 and charges were framed on 19.09.2016 by which date offences under Unlawful Activities
(Prevention) Act, 1967 were not even added, since for the first time the offences under Unlawful Activities (Prevention)
Act, 1967 were added on 09.04.2017. The Scheme as delineated by Section 173 Code of Criminal Procedure itself
indicates that even after report Under Section 173(2) is submitted, it is always open for the police authorities to conduct
further investigation and collect both documentary and oral evidence and submit a report Under Section 173(8). In this
context, reference is made to judgment of this Court in Vinay Tyagi v. Irshad Ali alias Deepak and Others,
MANU/SC/1101/2012 : (2013) 5 SCC 762, in which case after examining the provisions and elaborating the scheme as
delineated by Section 173 Code of Criminal Procedure, following was laid down by this Court in paragraph No. 15:
15. A very wide power is vested in the investigating agency to conduct further investigation after it has filed the report in
terms of Section 173(2). The legislature has specifically used the expression "nothing in this Section shall be deemed to
preclude further investigation in respect of an offence after a report Under Section 173(2) has been forwarded to the
Magistrate", which unambiguously indicates the legislative intent that even after filing of a report before the court of
competent jurisdiction, the investigating officer can still conduct further investigation and where, upon such
investigation, the officer in charge of a police station gets further evidence, oral or documentary, he shall forward to the
Magistrate a further report or reports regarding such evidence in the prescribed form. In other words, the investigating
agency is competent to file a supplementary report to its primary report in terms of Section 173(8). The supplementary
report has to be treated by the court in continuation of the primary report and the same provisions of law i.e. Sub-
section (2) to Sub-section (6) of Section 173 shall apply when the court deals with such report.
45. This Court again in Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel and Others,
MANU/SC/0104/2017 : (2017) 4 SCC 177 statutorily noticed the provisions of Section 173(8) as added in the Code of
Criminal Procedure, 1973. After noticing the 41st Report of the Law Commission of India in reference to Section 173,
this Court laid down following in paragraph Nos. 20 and 21:
20. The newly added Sub-section (8), as its text evinces, permits further investigation by the officer in charge of the
police station concerned in respect of an offence after a report under Sub-section (2) had been forwarded to the
Magistrate and also to lay before the Magistrate a further report, in the form prescribed, whereupon such investigation,
he obtains further evidence, oral or documentary. It is further ordained that on submission of such further report, the
essentialities engrafted in Sub-sections (2) to (6) would apply also in relation to all such report or reports.
21. The integration of Sub-section (8) is axiomatically subsequent to the 41st Report of the Law Commission Report of
India conveying its recommendation that after the submission of a final report Under Section 173, a competent police
officer, in the event of availability of evidence bearing on the guilt or innocence of the Accused ought to be permitted to
examine the same and submit a further report to the Magistrate concerned. This assumes significance, having regard to
the language consciously applied to design Section 173(8) in the 1973 Code. Noticeably, though the officer in charge of a
police station, in categorical terms, has been empowered thereby to conduct further investigation and to lay a
supplementary report assimilating the evidence, oral or documentary, obtained in course of the said pursuit, no such
authorisation has been extended to the Magistrate as the Court is in seisin of the proceedings. It is, however no longer
res integra that a Magistrate, if exigent to do so, to espouse the cause of justice, can trigger further investigation even
after a final report is submitted Under Section 173(8). Whether such a power is available suo motu or on the prayer
made by the informant, in the absence of request by the investigating agency after cognizance has been taken and the
trial is in progress after the Accused has appeared in response to the process issued is the issue seeking scrutiny herein.

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46. In paragraph No. 31, it was reiterated that the right of the police to further investigate even under the 1898 Code was
not exhausted and it could exercise such right often as necessary, when fresh information would come to light. In
paragraph No. 31, following has been laid down:
31. This Court also recounted its observations in Ram Lal Narang, MANU/SC/0216/1979 : (1979) 2 SCC 332, to the
effect that on the Magistrate taking cognizance upon a police report, the right of the police to further investigate even
under the 1898 Code was not exhausted and it could exercise such right often as necessary, when fresh information
would come to light. That this proposition was integrated in explicit terms in Sub-section (8) of Section 173 of the new
Code, was noticed. The desirability of the police to ordinarily inform the Court and seek its formal permission to make
further investigation, when fresh facts come to light, was stressed upon to maintain the independence of the judiciary,
the interest of the purity of administration of criminal justice and the interest of the comity of the various agencies and
institutions entrusted with different stages of such dispensation.
47. We, thus, do not find any lack of jurisdiction in NIA to carry on further investigation and submit a supplementary
report. In the counter affidavit, it has been stated by the Union of India that NIA has concluded investigation and
already a charge sheet has been submitted on 21.12.2018 vide first supplementary charge sheet. We, thus, do not find any
lack of jurisdiction in the NIA to carry on further investigation in the facts of the present case.
Issue Nos. 4 and 5
48. Both the issues being interrelated are being taken together.
49. We may recapitulate the essential facts for deciding the above issues. F.I.R. No. 2 of 2016 dated 11.01.2016 was
registered on 11.01.2016. The Appellant was taken into custody on 11.01.2016 itself. On 10.03.2016, the Appellant was
granted bail by the order of High Court. Charge sheet dated 10.03.2016 was submitted before the Court of C.J. M.,
Chatra, on which chargesheet C.J. M. took cognizance on 11.03.2016 Under Sections 414, 384, 386, 387, 120(B) Indian
Penal Code, Sections 25(1-B)(a), 26, 35 Arms Act and 17(1)(2) Criminal Law Amendment Act. The prayer of
investigation officer on 09.04.2017 to add offences Under Section 16, 17, 20 and 23 of Unlawful Activities (Prevention)
Act was allowed. After notification of Central Government dated 13.02.2018 transferring the investigation to NIA, NIA
took over the investigation and re-registered FIR No. RC-06/2018/NIL/DLI. The case stood transferred to court of
Judicial Commissioner-cum-Special Judge NIA, Ranchi. The Appellant being in custody in some other case, NIA prayed
before Special Judge for issue of production warrant. On 25.06.2018 on the strength of production warrant Appellant
was produced before the Special Judge on 25.06.2018 by superintendent, Chatra Jail, Chatra. The Special Judge vide his
order dated 25.06.2018 remanded the Appellant to B.M.C. Jail Ranchi and directed to be produced on 26.06.2018. On
26.06.2018, the Appellant was produced from Jail custody on which order was paved to put up on 11.07.2018.
50. The submission made by the learned Counsel for the Appellant is that in the present case the cognizance having
already been taken by the Chief Judicial Magistrate on 11.03.2016, Section 167 could not have been resorted to by the
Special Judge and provision, which was applicable in the facts of the present case, was Section 309. At this juncture, we
may notice the provisions of Section 167(1) and Sub-section (2) Code of Criminal Procedure, which are as follows:
(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed
within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or
information is well-founded, the officer in charge of the police station or the police officer making the investigation, if
he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries
in the diary hereinafter prescribed relating to the case, and shall at the same time forward the Accused to such
Magistrate.
(2) The Magistrate to whom an Accused person is forwarded under this Section may, whether he has or has no
jurisdiction to try the case, from time to time, authorise the detention of the Accused in such custody as such Magistrate
thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for
trial, and considers further detention unnecessary, he may order the Accused to be forwarded to a Magistrate having
such jurisdiction:
Provided that-

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(a) the Magistrate may authorise the detention of the Accused person, otherwise than in the custody of the police,
beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall
authorise the detention of the Accused person in custody under this paragraph for a total period exceeding,-
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or
imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or
sixty days, as the case may be, the Accused person shall be released on bail if he is prepared to and does furnish bail, and
every person released on bail under this Sub-section shall be deemed to be so released under the provisions of Chapter
XXXIII for the purposes of that Chapter;
(b) no Magistrate shall authorise detention in custody of the police under this Section unless the Accused is produced
before him in person for the first time and subsequently every time till the Accused remained in the custody of the
police, but the Magistrate may extend further detention in judicial custody on production of the Accused either in
person or through the medium of electronic video linkage;
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention
in the custody of the police.
Explanation I.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified
in paragraph (a), the Accused shall be detained in custody so long as he does not furnish bail;.
Explanation II.- If any question arises whether an Accused person was produced before the Magistrate as required under
Clause (b), the production of the Accused person may be proved by his signature on the order authorising detention or
by the order certified by the Magistrate as to production of the Accused person through the medium of electronic video
linkage, as the case may be.
Provided further that in case of a woman under eighteen years of age, the detention shall be authorized to be in the
custody of a remand home or recognized social institution.
51. Section 309 on which reliance has been placed by learned Counsel for the Appellant is as follows:
309. Power to postpone or adjourn proceedings.--(1) In every inquiry or trial, the proceedings shall be continued from
day-to-day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same
beyond the following day to be necessary for reasons to be recorded:
Provided that when the inquiry or trial relates to an offence Under Section 376, Section 376A, Section 376AB, Section
376B, Section 376C, Section 376D, Section 376DA or Section 376DB of the Indian Penal Code (45 of 1860), the inquiry
or trial shall be completed within a period of two months from the date of filing of the charge sheet.
(2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to
postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded,
postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a
warrant remand the Accused if in custody:
Provided that no Magistrate shall remand an Accused person to custody under this Section for a term exceeding fifteen
days at a time:
Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without
examining them, except for special reasons to be recorded in writing:
Provided also that no adjournment shall be granted for the purpose only of enabling the Accused person to show cause
against the sentence proposed to be imposed on him.
Page 355
Provided also that -
(a) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of
that party;
(b) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment;
(c) where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present
in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the
witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the
witness, as the case may be.
Explanation 1.- If sufficient evidence has been obtained to raise a suspicion that the Accused may have committed an
offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.
Explanation 2.- The terms on which an adjournment or postponement may be granted include, in appropriate cases, the
payment of costs by the prosecution or the Accused.
52. The issue to be answered in the present case is as to whether for remanding the Accused (Appellant), Section 167(2)
Code of Criminal Procedure could have been resorted to by the Special Judge or remand could have been done only
Under Section 309(2) Code of Criminal Procedure This Court had occasion to consider the provisions of Section 167
and Section 309 Code of Criminal Procedure in large number of cases. In the old code, there was a provision namely
Section 344 which was akin to Section 309 of present Code. Section 167 of Code of Criminal Procedure, 1973,
corresponds to Section 167 of the old Code. This Court had occasion to consider Section 167 and Section 344 of the old
Code in Gouri Shankar Jha v. State of Bihar and others, MANU/SC/0128/1972 : 1972 (1) SCC 564. This Court in
paragraph No. 12 laid down following: -
12. Thus, Section 167 operates at a stage when a person is arrested and either an investigation has started or is yet to
start, but is such that it cannot be completed within 24 hours. Section 344, on the other hand, shows that investigation
has already begun and sufficient evidence has been obtained raising a suspicion that the Accused person may have
committed the offence and further evidence may be obtained, to enable the police to do which, a remand to jail custody
is necessary.
53. This Court in Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J. Kulkarni,
MANU/SC/0335/1992 : (1992) 3 SCC 141, had occasion to consider Section 309 Code of Criminal Procedure This
Court held that Section 309 comes into operation after taking cognizance and not during the period of investigation.
Remand order under this provision (Section 309) can only be with judicial custody.
54. We may refer to a Three-Judge Bench Judgment of this Court in State through CBI v. Dawood Ibrahim Kaskar and
Others, MANU/SC/0643/1997 : (2000) 10 SCC 438. In the above case, the Government of India, with the consent of
the Government of Maharashtra, issued a notification entrusting further investigation in the above cases to Delhi Special
Police Establishment (CBI). The CBI filed applications before the designated Court praying for issuance of non-bailable
warrants of arrests against several Accused and the applications were rejected by the Designated Court relying on a
Bombay High Court judgment in Mohd. Ahmed Yasin Mansuri v. State of Maharashtra, MANU/MH/0130/1994 : 1994
Crl. LJ 1854 (Bom.). In paragraph No. 6 of the judgment, this Court has noticed the judgment of Bombay High Court in
Mohd. Ahmed Yasin Mansuri v. State of Maharashtra (supra) and observations made by the Bombay High Court.
Bombay High Court has observed in the said case that in the Code, no power is conferred for police custody after
cognizance of an offence is taken.
55. The observations made by the High Court as quoted in para 6 of the judgment were not approved by this Court.
This Court also noticed the provisions of Sections 167 and 309 Code of Criminal Procedure In paragraph Nos. 10 and
11, following has been laid down:

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10. In keeping with the provisions of Section 173(8) and the above-quoted observations, it has now to be seen whether
Section 309(2) of the Code stands in the way of a Court, which has taken cognizance of an offence, to authorise the
detention of a person, who is subsequently brought before it by the police under arrest during further investigation, in
police custody in exercise of its power Under Section 167 of the Code. Section 309 relates to the power of the Court to
postpone the commencement of or adjournment of any inquiry or trial and Sub-section (2) thereof reads as follows:
309. (2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to
postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded,
postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a
warrant remand the Accused if in custody:
Provided that no Magistrate shall remand an Accused person to custody under this Section for a term exceeding fifteen
days at a time:
11. ..Since, however, even after cognizance is taken of an offence the police has a power to investigate into it further,
which can be exercised only in accordance with Chapter XII, we see no reason whatsoever why the provisions of
Section 167 thereof would not apply to a person who comes to be later arrested by the police in course of such
investigation. If Section 309(2) is to be interpreted - as has been interpreted by the Bombay High Court in Mansuri - to
mean that after the Court takes cognizance of an offence it cannot exercise its power of detention in police custody
Under Section 167 of the Code, the Investigating Agency would be deprived of an opportunity to interrogate a person
arrested during further investigation, even if it can on production of sufficient materials, convince the Court that his
detention in its (police) custody was essential for that purpose. We are, therefore, of the opinion that the words
"Accused if in custody" appearing in Section 309(2) refer and relate to an Accused who was before the Court when
cognizance was taken or when enquiry or trial was being held in respect of him and not to an Accused who is
subsequently arrested in course of further investigation.
56. This Court clearly held that Section 309(2) does not refer to an Accused, who is subsequently arrested in course of
further investigation. This Court in paragraph No. 11, as noted above, clearly held that even after cognizance is taken of
an offence the police has a power to investigate into it further and there is no reason why the provisions of Section 167
thereof would not apply to a person who comes to be later arrested by the police in course of such investigation.
57. In above Three Judge Bench judgment the Accused was subsequently arrested during investigation after cognizance
was taken. Three Judge Bench explained the words "Accused if in custody" to relate to an Accused who was before the
court when cognizance was taken or when inquiry or trial was being held in respect of him and not to an Accused who is
subsequently arrested in course of further investigation. There cannot be any dispute to the above proposition laid down
by this Court but the above judgment does not help the Appellant in facts of the present case. In the present case as
noticed above, the Accused was before the Court when cognizance was taken or when inquiry or trial was being held in
respect of him. In the facts of present case as noted above, the Accused was produced in the Court of Special Judge on
25.06.2018, he was produced under production warrant from jail custody. The Accused was thus very well in custody on
the date when he was produced in the Court. Thus, this was not a case that Accused was subsequently arrested during
the investigation and was produced before the Court. The Accused was arrested on 11.01.2016 immediately after lodging
of the FIR and was granted bail on 10.03.2016. Thus, in view of the law as laid down by this Court in State through CBI
v. Dawood Ibrahim Kaskar(Supra), the Appellant was in custody and the Court could have remanded him in exercise of
jurisdiction Under Section 309(2) and the present was not a case where Section 167(2) could have been resorted to.
58. A Two Judge Bench judgment in Dinesh Dalmia v. Central Bureau of Investigation, MANU/SC/7924/2007 : (2007)
8 SCC 770, is relevant for the present case where this Court had occasion to interpret sub-Section (2) of Section 167
Code of Criminal Procedure vis-o?=-vis sub-Section (2) of Section 309 Code of Criminal Procedure In paragraph No.
29, this Court laid down: -
29. The power of a court to direct remand of an Accused either in terms of Sub-section (2) of Section 167 of the Code
or Sub-section (2) of Section 309 thereof will depend on the stages of the trial. Whereas Sub-section (2) of Section 167
of the Code would be attracted in a case where cognizance has not been taken, Sub-section (2) of Section 309 of the
Code would be attracted only after cognizance has been taken.

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59. After referring to Anupan J. Kulkarni(supra) and Dawood Ibrahim (Supra), this Court laid down following in
paragraph No. 39: -
39. The statutory scheme does not lead to a conclusion in regard to an investigation leading to filing of final form under
Sub-section (2) of Section 173 and further investigation contemplated under Sub-section (8) thereof. Whereas only when
a charge-sheet is not filed and investigation is kept pending, benefit of proviso appended to Sub-section (2) of Section
167 of the Code would be available to an offender; once, however, a charge-sheet is filed, the said right ceases. Such a
right does not revive only because a further investigation remains pending within the meaning of Sub-section (8) of
Section 173 of the Code.
60. Learned Counsel for the Appellant has relied on a Two Judge Bench judgment of this Court in Mithabhai Pashabhai
Patel and Others v. State of Gujarat, MANU/SC/0858/2009 : (2009) 6 SCC 332. In paragraph No. 17, this Court made
following observations:
17. The power of remand in terms of the aforementioned provision is to be exercised when investigation is not
complete. Once the charge-sheet is filed and cognizance of the offence is taken, the court cannot exercise its power
under Sub-section (2) of Section 167 of the Code. Its power of remand can then be exercised in terms of Sub-section (2)
of Section 309 which reads as under:
309. Power to postpone or adjourn proceedings.-
(1) * * *
61. The above observations do support the submissions raised by the learned Counsel for the Appellant.
62. After having noticed, the relevant provisions of Section 167(2) and Section 309, Code of Criminal Procedure and law
laid down by this Court, we arrive at following conclusions: -
(i) The Accused can be remanded Under Section 167(2) Code of Criminal Procedure during investigation till cognizance
has not been taken by the Court.
(ii) That even after taking cognizance when an Accused is subsequently arrested during further investigation, the
Accused can be remanded Under Section 167(2) Code of Criminal Procedure.
(iii) When cognizance has been taken and the Accused was in custody at the time of taking cognizance or when inquiry
or trial was being held in respect of him, he can be remanded to judicial custody only Under Section 309(2) Code of
Criminal Procedure.
63. We, thus, find substance in submission of learned Counsel for the Appellant that in the present case Accused could
have been remanded only Under Section 309(2) Code of Criminal Procedure The submission which was taken on behalf
of the CBI before us was that the Accused was remanded Under Section 167(2) Code of Criminal Procedure Since he
was produced before Special Judge during further investigation. The stand taken by the CBI is not correct.
64. We, however, have to decide the issue as per law irrespective of the stand taken by CBI. We may notice the order
dated 25.06.2018 passed by the Court of Judicial Commissioner-cum-Special Judge NIA, Ranchi, which is to the
following effect: -
25.06.2018 On strength of issued production warrant superintend Chatra Jail, Chatra produced Accused namely Pradeep
Ram @ Pradeep verma S/o Devki Ram, R/o Village. Winglat, P.S. Tandwa, District-Chatra. Let Accused Pradeep Ram
remanded in the case and sent to B.M.C. Jail, Ranchi to be produced on 26.06.2018. Learned Spl. P.P. is present.
Issued Custody warrant.

Page 358
Dictated
Ad/- Illegible
Spl. Judge(NIA)
..
65. The special Judge in his order has neither referred to Section 309 nor Section 167 under which Accused was
remanded. When the Court has power to pass a particular order, non-mention of provision of law or wrong mention of
provision of law is inconsequential. As held above, the special Judge could have only exercised power Under Section
309(2), hence, the remand order dated 25.06.2018 has to be treated as remand order Under Section 309(2) Code of
Criminal Procedure The special Judge being empowered to remand the Accused Under Section 309(2) in the facts of the
present case, there is no illegality in the remand order dated 25.06.2018 when the Accused was remanded to the judicial
custody.
66. We, thus, do not find any error in the order dated 25.06.2018 but for the reasons as indicated above. The High
Court, thus, committed error in holding that the order of remand dated 25.06.2018 was in exercise of power Under
Section 167 Code of Criminal Procedure We, however, hold that the remand order dated 25.06.2018 was in exercise of
power Under Section 309(2). The remand order is upheld for the reasons as indicated above.
67. The issue Nos. 4 and 5 are decided accordingly.
68. In view of the foregoing discussions, we do not find any merit in the appeals and the appeals are dismissed.

Page 359
MANU/SC/0350/2021
Criminal Appeal No. 510 of 2021 (Arising out of SLP (Criminal) No. 1796/2021)
Appellants: Gautam Navlakha

Vs.
Respondent: National Investigation Agency
U.U. Lalit and K.M. Joseph, JJ.
JUDGMENT
K.M. Joseph, J.
1. Leave granted.
2. On the basis of FIR No. 4 of 2018 dated 08.01.2018, registered at Vishrambagh Police Station, Pune,
Maharashtra, which was one registered Under Sections 153A, 505(1)(b) and Section 34 of Indian Penal Code to
which Section 120(B) was added on 06.03.2018 and still further into which, Sections 13, 16, 17, 18, 18B, 20, 38 and
40 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as 'the UAPA', for short), were added
on 17.05.2018, and, in which FIR, the name of the Appellant was added on 22.08.2018, the Appellant came to be
arrested from his residence in Delhi on 28.08.2018. The Appellant moved Writ Petition No. 2559 of 2018 seeking a
Writ of Habeas Corpus in the High Court of Delhi. The High Court, apart from issuing notice, inter alia, ordered
that no further precipitate action of removing the Appellant from Delhi be taken till the matter was taken at 04:00
P.M.. The Order was passed at 02:45 P.M.. In the meantime, the CMM at Saket, Delhi disposed of an Application
seeking transit remand with the following Order:
FIR No. 4/18

PS: Vishrambagh, Pune, Maharashtra
Under Section: 153A/505(1)(B)/117/34 Indian Penal Code & Under Section 13/15/17/18/18B/20/39/40 of
Unlawful Activities Prevention Act.
State v. Gautam Pratap Navlakha
28.08.2018
Present: Sh. Jagdamba Pandey, Ld. APP for the State
IO Assistant Police Inspector Sushil V. Bobde alongwith ACP Ganesh Gawade and DCP Bachchan Singh Inspector
Sanjay Gupta, PS Special Cell, Lodhi Colony, New Delhi.
Accused Gautam Pratap Navlakha produced in Police custody.
Sh. Om Prakash, Ld. LAC for the Accused.
This is a handwritten application preferred by the 10 Assistant Police Inspector Sushil V. Bodbe seeking transit
remand of two days the above noted Accused persons. The identity of 10 as a police officer of P.S. Vishrambagh,
Pune, Maharashtra is established upto my satisfaction upon his having shown his identity card.
Heard. It is submitted by the IO that above noted Accused is required in above noted case FIR registered at PS
Vishrambagh, Pune, Maharashtra and has been arrested from his house at Kalkaji, Delhi. It is further submitted by
the IO that the Accused has been arrested without warrant and he is required to be produced before competent

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Court i.e. Court of Ld. Special Court, Shivaji Nagar, Pune, Maharashtra and therefore, his transit remand may be
granted.
Heard. Considered. I have given my thoughtful consideration to the submissions made by the IO and the APP for
the State.
As per the police papers, FIR No. 4/18 has been registered Under Sections 153A/505(1)(B)/117/34 Indian Penal
Code & Under Section 13/16/17/18/18B/20/39/40 of Unlawful Activities Prevention Act at police station
Vishrambagh, Pune, Maharashtra wherein the Accused is required. As per the arrest memo the Accused namely
Gautam Pratap Navlakha was arrested on 28.08.2018 at. 2.15 pm at Kalkaji, Delhi. Intimation of arrest of Accused
has been given to his partner/friend.
As the Accused is required for further investigation of the case, therefore, his transit remand Is granted till
30.08.2018. The Accused be produced before the concerned Ld. Special Court, Shivaji Nagar, Pune, Maharashtra on
or before 30.08.2018 without fail. Accused be got medically examined as per Rules and the directions of the Hon'ble
Supreme Court. A copy of this order be given dasti to the Investigating Officer.
Application of transit remand is disposed of accordingly. Necessary record be maintained by the Ahlmad.
(Manish Khurana)
Commissioner/SE/
District Court, Saket
New Delhi/28.08.2018
3. Thereafter, when the Writ Petition, filed by the Appellant before the High Court, came up at 04.00 P.M., the High
Court passed the following Order on 28.08.2018:
2. Court is informed at 4 pm by Mr. Rahul Mehra, learned Standing Counsel for the State that an order was passed
today by the learned Chief Metropolitan Magistrate (CMM), South East District, Saket in the post lunch session
granting transit remand for producing the Petitioner before the learned Special Court, Shivaji Nagar, Pune on or
before 30th August, 2018.
3. The Court is also shown the documents produced before the learned CMM most of which (including FIR No. 4
of 2018 registered at Police Station Vishrambagh, Pune) are in Marathi language and only the application filed for
transit remand before the learned CMM is in Hindi. However, it is not possible to make out from these documents
what precisely the case against the Petitioner is.
4. Since it is already 4.30 pm, the Court considers it appropriate to direct that pursuant to the order dated 28th
August, 2018 of the learned CMM, the Petitioner will not be taken away from Delhi and this case will be taken up as
the first case tomorrow morning.
5. Translations of all the documents produced before the CMM be provided to this Court tomorrow.
6. The Petitioner shall, in the meanwhile, be kept at the same place from where the was picked up with two guards
of the Special Cell, Delhi Police along with local Police that was originally here to arrest the Petitioner, outside the
house. Barring his lawyers, and the ordinary residents of the house, the Petitioner shall not meet any other persons
or step out of the premises till further orders.
4. A Writ Petition was filed in the Supreme Court as Writ Petition (Criminal) Diary No. 32319 of 2018 on the next
day. This Writ Petition was filed by five illustrious persons in their own fields, as is observed by this Court in the
Judgment, which is reported in Romila Thapar and Ors. v. Union of India and Ors. MANU/SC/1098/2018 : (2018)
10 SCC 753. The subject matter of the Writ Petition was the allegedly high-handed action of the Maharashtra Police
and the arrest of five Activists which included the Appellant on 28.08.2018 from their homes. The relief sought by
the Writ Petitioners was to ensure a credible investigation into the arrest of the five Human Rights Activists. Interim
orders were passed in the Writ Petition by this Court, under which, the benefit of house arrest of the Appellant,
inter alia, was also ordered to be extended to others. The order of house arrest of Appellant was extended. The relief
sought for, namely, an independent investigation in the Writ Petition, filed in this Court, was rejected by the
majority of Judges with Dr. D.Y. Chandrachud, J., dissenting. We notice paragraph-40, which reads as follows:

Page 361
40. Accordingly, this writ petition is disposed of with liberty to the Accused concerned to take recourse to
appropriate remedy as may be permissible in law. The interim order passed by this Court on 29-8-2018 (Romila
Thapar v. Union of India,) shall continue for a period of four weeks to enable the Accused to move the court
concerned. The said proceedings shall be decided on its own merits uninfluenced by any observation made in this
judgment, which is limited to the reliefs claimed in the writ petition to transfer the investigation to an independent
investigating agency and/or court-monitored investigation. The investigating officer is free to proceed against the
Accused concerned as per law. All the accompanying applications are also disposed of in terms of this judgment.
5. This judgment was rendered on 28.09.2018 by this Court. Thereafter, the Writ Petition, filed by the Appellant,
before the High Court of Delhi, was allowed. We may, at once notice, that the relief sought in the Writ Petition was
initially one seeking a Writ of Habeas Corpus. Thereafter, the Court came to be concerned with the legality of the
Order of transit remand passed by the CMM, which we have adverted to. We may notice only, paragraphs-28 and
29, 30 and 31 of judgment dated 01.10.2018:
28. With there being several non-compliances of the mandatory requirement of Article 22(1), Article 22(2) of the
Constitution and Section 167 read with Section 57 and 41(1)(ba) of the Code of Criminal Procedure, which are
mandatory in nature, it is obvious to this Court that the order passed by the learned CMM on 28th August, 2018
granting transit remand to the Petitioner is unsustainable in law. The said order is accordingly hereby set aside.
29. In view of Section 56 read with Section 57 Code of Criminal Procedure, in the absence of the remand order of
the learned CMM, the detention of the Petitioner, which has clearly exceeded 24 hours, is again untenable in law.
Consequently, the house arrest of the Petitioner comes to an end as of now.
30. It is clarified that this order will not preclude the State of Maharashtra from proceeding further in accordance
with law.
31. At this stage, Mr. Navare submits that this Court should extend the house arrest of the Petitioner by two more
days since the Supreme Court had itself extended his house arrest for four weeks. This submission overlooks the
fact that the Supreme Court had extended the Petitioner's house arrest only in order to enable him to avail of the
remedies that were permissible to him in accordance with law. As far as the present Petitioner is concerned, the fact
that this writ petition filed by him was already pending before this Court, was noticed by the Supreme Court and it
was made clear that he is free to pursue this remedy among others in accordance with law. The extension of his
house arrest by the Supreme was only for that limited purpose. Consequently, this Court is unable to accede to the
request of Mr. Navare.
(Emphasis supplied)
6. The Appellant filed Writ Petition No. 4425 of 2018 dated 05.10.2018 for quashing the FIR. The High Court
protected the Appellant from arrest during the pendency of the said Writ Petition. Charge-sheet was filed against the
Appellant's co-Accused on 15.11.2018. Then, this is followed-up by a supplementary charge-sheet against the co-
Accused on 21.02.2019. On 13.09.2019, the High Court of Bombay dismissed the Writ Petition filed by Appellant
against the FIR. The interim protection from arrest was, however, extended by three weeks. The Special Leave
Petition filed by Appellant, as SLP (Criminal) No. 8862 of 2019, came to be disposed of by acceding to the request
of the Appellant that the Appellant may apply for anticipatory bail before the competent Court. The Court extended
the interim protection, which was given to the Appellant for another period of four weeks, from 15.10.2019 and he
was given liberty to apply for regular/anticipatory bail. The Application seeking anticipatory bail came to be
dismissed by the Sessions Court by Order dated 12.11.2019.
7. The Appellant approached the High Court of Bombay seeking anticipatory bail, which was declined by Order
dated 14.02.2020. However, the High Court granted protection from arrest for four weeks. The Special Leave
Petition filed, challenging the Order by the High Court, came to be disposed of by Order dated 16.03.2020. By the
said Order, this Court dismissed the Special Leave Petition. In its Order, this Court noticed that since the Appellant
had enjoyed protection for approximately one and a half years, three weeks' time was granted to surrender. It is,
thereafter, that on 08.04.2020, this Court extended the time by a period of one week for surrendering and,
accordingly, on 14.04.2020, the Appellant surrendered before the NIA, Delhi. On 15.04.2020, seven days police
custody was granted by the Sessions Court, New Delhi. On 21.04.2020, the further remand of seven days was
ordered. Before the expiry of the Appellant's policy custody, he was remanded to judicial custody on 25.04.2020.
The Appellant was transferred to Mumbai on 26.05.2020 and he was remanded to judicial custody. It is, thereafter,
that the Appellant moved for default bail on 11.06.2020. In calculating the period of custody for the purpose of
filing the Application for default bail, the Appellant, included the period of 34 days of house arrest from 28.08.2018
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to 01.10.2018. Further, eleven days of custody with the NIA from 15.04.2020 till 25.04.2020 and forty-eight days in
Tihar Jail, Delhi and Taloja Jail, Mumbai from 25.04.2020 to 12.06.2020 (judicial custody), were also added. The
NIA, it would appear, filed Application for extension of time to file charge-sheet after 110 days of custody on
29.06.2020. The NIA Special Court, before which the Application for default bail was moved, rejected the
Application on 12.07.2020. The Appellant preferred an Appeal before the High Court of Bombay challenging the
Order dated 12.07.2020. On 09.10.2020, the NIA filed the charge-sheet against the Appellant, inter alia. By the
impugned Order dated 08.02.2021, the High Court of Bombay, dismissed the Appeal, which was filed Under
Section 21 of the NIA Act.
8. We heard Shri Kapil Sibal, learned Senior Counsel as also Smt. Nitya Ramakrishnan, learned Senior Counsel
assisted by Shri Shadan Farasat for the Appellant and Shri S.V. Raju, learned Additional Solicitor General, on behalf
of the Respondent.
THE FINDINGS IN THE IMPUGNED ORDER
9. During the period of the house arrest, the Appellant was not supposed to meet anyone, barring his lawyers and
ordinary residents of the house. He could not step out of the premises. There were to be two Guards of the Special
Cell of Delhi Police outside the house. The Investigating Agency/Investigating Officer did not have any access to
him or occasion to interrogate him. The Transit Remand Order being stayed, it could not be said that the Appellant
was under the detention of the Police for investigation. Under Section 167(2) of the Code of Criminal Procedure,
1973 (hereinafter referred to as 'the Code of Criminal Procedure', for short), the Magistrate has to authorise the
detention. The High Court having stayed the transit remand and finally having set aside the transit remand, thereby
holding the detention to be illegal, there was no authorised detention by an Order of the Magistrate. Therefore, the
Appellant cannot claim the benefit of default bail. It is an indispensable requirement to claim the benefit of default
bail that the detention of the Accused has to be authorised by the Magistrate. The authorisation by the Magistrate
having been declared illegal, the detention itself was illegal. The said period (house arrest custody) cannot be treated
as authorised custody Under Section 167(2) of the Code of Criminal Procedure. The Court drew support from
decision of this Court which is reported in Chaganti Satyanarayan and Ors. v. State of Andhra Pradesh
MANU/SC/0165/1986 : (1986) 3 SCC 141, to hold that the period of 90 days will commence only from the date of
remand and not from any anterior date in spite of the fact that the Accused may have been taken into custody
earlier. The Court held that it was not possible for it to hold that every detention, which may have resulted in
deprivation of liberty of the Accused, to be an authorised detention Under Section 167(2) of the Code of Criminal
Procedure Sans any valid authorisation of the Magistrate, detaining the Appellant, he was not entitled to default bail.
Thus, the Court took the view that the period, when the Appellant was under the house arrest, i.e., 28.08.2018 to
01.10.2018, had to be excluded. After the High Court of Delhi set aside the Transit Remand Order, it was noted that
the Appellant had applied for anticipatory bail, which was rejected at all stages and, ultimately, the Appellant
surrendered only on 14.04.2020. It was based on the said surrender that the Magistrate authorised police custody.
SUBMISSIONS OF THE Appellant
10. The learned Senior Counsel for the Appellant contended that there is no substance in the reasoning of the High
Court that the period of 34 days, during which, the Appellant was under house arrest, could not be included within
the period of 90 days, for the reason that the Investigating Officer did not have access to the Appellant, and it is
untenable. It was contended that nothing prevented the Officers from interrogating the Appellant/investigating the
matter, if need be, after obtaining the leave of the High Court of Delhi. It the Appellant's contention that Under
Section 167 of the Code of Criminal Procedure, what is contemplated is granting of such custody by the Magistrate,
as he thinks fit. The provision does not contemplate access to the Police for interrogation as a condition. It is
pointed out that it is open to the Magistrate and it is often so done that right from the first day of remand, what is
granted is judicial custody, wherein Police have no access to the Accused. However, such judicial custody is
reckoned for calculating the period for considering an Application for default bail. Still further, it is pointed out that
Under Section 43D(2)(b), of UAPA Police Custody can be sought at any time. It is further contended that there was
no stay of investigation. The two conditions required for attracting Section 167 are pointed out to be as follows: (a)
A person is arrested Under Section 57 of the Code of Criminal Procedure while investigating a cognisable offence
and (b) he is produced before a Magistrate after his arrest. It is contended that in the case of the Appellant, both the
conditions were fulfilled having regard to the fact that the Appellant stood arrested on 28.08.2018 and he was
produced before the Magistrate for the remand. It was next contended that the fact that the High Court of Delhi
finally set aside the said remand and held that the detention was illegal, was an untenable ground to hold that there
was no remand Under Section 167 of the Code of Criminal Procedure. Appellant lay store by the Order of the High
Court of Delhi, wherein it had concluded that the house arrest of the Appellant 'comes to an end as of now'. It is
contended that the Court has not treated the period of house arrest as either non est or void. Custody, it is pointed

Page 363
out, was authorised by the Magistrate Under Section 167. It was extended by a modification by the High Court and,
thereafter, by this Court. The High Court of Delhi, it is pointed out, only stayed the transit and not the remand
Order. The Court only modified the nature of the remand, i.e., from transit in Police custody to within the confines
of the Appellant's house. The detention, being found to be illegal, cannot wipe out the period of detention. The
Order of the High Court of Delhi, providing for house arrest can only be sourced from Section 167 of the Code of
Criminal Procedure. What is required Under Section 167 of the Code of Criminal Procedure is the total period of
custody which can include broken periods and the custody need not be one continuous lot. It is contended that
Section 167 does not distinguish between transit or other remand. The remand, be it a transit remand, has to be
sourced to Section 167 of the Code of Criminal Procedure and there is no other provision for the transit remand.
The High Court has itself found that Appellant was in custody when he was under the house arrest. It is then
pointed out that the High Court did not have any inherent power to place a person in custody. In this case the
power can only, therefore, be what flows from Section 167 of the Code of Criminal Procedure. It is the Order of
transit remand which occasioned the custody. It was contended that the High Court or any superior Court can
modify or change the nature of the Magisterial remand. The modified nature of the remand by the High Court of
Delhi and this Court was never set aside.
SUBMISSIONS OF THE Respondent
11. Mr. S.V. Raju, learned Additional Solicitor General would support the order of the High Court:
a. He points out that at the time when the writ petition was filed in the High Court of Delhi seeking a writ of habeas
corpus, the order of transit remand had not been passed by the CMM, Saket.
b. In his application seeking for anticipatory bail, the Appellant had sought through his pleadings to project the need
to be protected. The protection was granted which was continued in various proceedings as already noticed.
c. Reliance is placed on the bar Under Section 43(D)(4) of UAPA against the grant of anticipatory bail.
d. He referred to paragraph 12 of the order rejecting Appellant's plea for anticipatory bail. It is pointed out that it
was the case of the Appellant that this Court had protected his liberty by granting house arrest inter alia. The meat
of the matter is that it was understood by the Appellant himself that the house arrest was a protection from custody
and therefore it could not be understood as custody within the meaning of Section 167 of the Code of Criminal
Procedure. In short, house arrest was permitted in exercise of the extraordinary powers available to this Court.
12. It is further pointed out that house arrest according to the Appellant itself was unknown to the code. It is further
the case of the Respondent that an Accused who is remanded to custody Under Section 167 of the Code of
Criminal Procedure cannot come out of the custody unless he is bailed out or unless he is acquitted. There is no bail
in favour of the Appellant. He was also not remanded to judicial custody. The so-called custody during the house
arrest, in other words, was not custody or detention within the meaning of Section 167 of the Code of Criminal
Procedure It also was not a police custody because the investigating agency had no access to the Accused during this
period. Thus, a period of 34 days in house arrest was neither judicial custody nor police custody as provided in
Section 167 of the Code of Criminal Procedure. The order of the High Court is relied upon to point out that the
Court contemplated that the house arrest came to an end with the judgment. The fact that the High Court did not
grant bail when it pronounced the judgment on 1.10.2018, would go to show that it was not an order passed Under
Section 167 of the Code of Criminal Procedure. The contention which found favour with the High Court is
reiterated, namely, with its judgment on 01.10.2018, the Court has set the clock back and treated the arrest of the
Appellant as non-est. This is for the reason that the Appellant was not bailed out. He was not placed in judicial
custody. With the house arrest coming to an end, the Appellant became a free person, entitled to apply for
anticipatory bail which he availed of. The application for anticipatory bail presupposes that the arrest on 28.08.2018
was non-est since a person could not be arrested for an offence twice. By refusing anticipatory bail, the Courts
including this Court permitted the arrest of the Appellant for the same offences for which he was arrested earlier.
This indicates that the earlier proceedings were treated as non-est for all practical purposes. The surrender by the
Appellant estopped the Appellant from projecting the house arrest as custody within the meaning of Section 167 of
the Code of Criminal Procedure. The order passed by CMM, Saket was only an order for production and not an
order for detention in custody. Reading Section 167 alongwith Sections 56 and 57 of the Code of Criminal
Procedure, it is pointed out that the order of transit remand is to be understood as an order extending the period of
arrest of 24 hours for the purpose of facilitating the production of Accused before the competent Magistrate which
in this case, was the competent Court located at Pune. Sections 56, 57 and 167 is relied upon to contend that since
there is a duty to produce an arrested person within 24 hours, Section 57 provided for a special order Under Section
167 for such detention beyond 24 hours for production of the Accused before the competent Court. Orders are

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ordinarily passed under this Section 167 are either orders of police remand or orders remanding an Accused to
judicial custody. The special order referred to in Section 57 is the order forwarding the Accused to a Magistrate
having jurisdiction to either try the case or commit the Accused. In a case where an Accused is presented before a
Magistrate not having such jurisdiction, the Magistrate has no authority or power to remand an Accused to judicial
custody. Therefore, the order of transit remand is not an order for the purpose of including the period in computing
90 days and it is only a production order. At any rate, it is pointed out that the order of Saket Court (transit order),
even if it is considered to be an order Under Section 167 of Code of Criminal Procedure, it was hardly in force for a
couple of hours till the Delhi High Court stayed the same around 4.00 p.m. on the very day. Even if this period of 1
day is included for the purpose of computing the period of 90 days, the Appellant would not become entitled to
default bail. It is further the case of the Respondent that the interpretation adopted by the Appellant would render
police custody Under Section 167 illusory.
13. The investigating authorities would be deprived of the opportunity for custodial interrogation during the first 15
days or 30 days in case of UAPA offences. The interpretation which frustrates a fair investigation under the statute
should be avoided.
14. Act of Court should not negatively impact the investigating agency-the maxim "Actus curiae neminem gravabit"
would apply in the present case.
15. The order passed by the High Court of Delhi in the writ petition seeking habeas corpus was not an order Under
Section 167 of the Code of Criminal Procedure. If the submission of the Appellant is accepted, it would mean that
the Appellant was remanded to police custody after 30 days i.e., on 15.04.2020 and 21.04.2020. The Appellant never
objected to the same. This clearly shows that the present contention of the Appellant is a mere after thought. The
period of arrest has to be excluded and the period has to be reckoned from the date of production. The submission
is based on the decision of this Court in Chaganti Satyanarayana (supra). This is after treating 15.04.2020 to be the
date of production.
ANALYSIS
16. Though the final question to be answered is whether the period of 34 days spent in house arrest by the
Appellant is to be counted towards the period of 90 days Under Section 167 Code of Criminal Procedure, several
issues arise which we articulate as follows:
1) What is the nature of an order of transit remand? Is it an order passed Under Section 167 of the Code of Criminal
Procedure?
2) What is the nature of the interim order dated 28.08.2018 passed in the writ petition by the Appellant in the High
Court of Delhi as extended? Are these orders passed Under Section 167 of the Code of Criminal Procedure?
3) What is the effect of the judgment of the High Court of Delhi dated 1.10.2018 wherein the arrest of the
Appellant and the transit remand are found illegal?
4) Does the House arrest of the Appellant amount to police custody or judicial custody? Can there be an order for
custody other than police custody and judicial custody Under Section 167 Code of Criminal Procedure? Is House
arrest custody within the embrace of Section 167 of Code of Criminal Procedure?
5) Is the House arrest of the Appellant not custody Under Section 167 of the Code of Criminal Procedure on the
score that the Appellant could not be interrogated by the competent investigating officer?
6) What is the effect of the Appellant being in police custody from 15.4.2020 till 25.4.2020 and the alleged
acquiescence of the Appellant in the order and the custody undergone by the Appellant?
7) Whether broken periods of custody otherwise traceable to Section 167 Code of Criminal Procedure suffice to
piece together the total maximum period of custody permitted beyond which the right to default bail arises or
whether the law giver has envisaged only custody which is continuous?
8) What is the impact of mandate of Article 21 and Article 22 of the Constitution?

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17. Before we deal with the various issues, it is necessary to note certain salient features of the Constitution, Code of
Criminal Procedure and also Unlawful Activities (Prevention) Act (UAPA).
18. Article 21 of the Constitution incorporates invaluable fundamental rights insofar as it declares that no person
shall be deprived of his life or personal liberty except according to procedure established by law. Article 22(1) and
(2) read as follows:
2. Protection against arrest and detention in certain cases
(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the
grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his
choice
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a
period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to
the court of the magistrate and no such person shall be detained in custody beyond the said period without the
authority of a magistrate
19. Chapter V of the Code of Criminal Procedure deals with "Arrest of Persons". Section 41 deals with situations in
which any police officer may arrest any person without an order from a Magistrate or without a warrant. Section
41(1)(a) to 41(1)(d) provides for safeguards to avoid arbitrary arrest and also confer certain rights on the person
arrested. They were inserted by Act 5 of 2009 with effect from 1.11.2010. Section 43 Code of Criminal Procedure
provides for power to arrest even by a private person and the procedure to be followed in such case. Section 48
Code of Criminal Procedure reads as follows:
48. Pursuit of offenders into other jurisdictions. A police officer may, for the purpose of arresting without warrant
any person whom he is authorised to arrest, pursue such person into any place in India.
20. Sections 56 and 57 Code of Criminal Procedure are also relevant and we refer to the same.
56. Person arrested to be taken before Magistrate officer in charge of police station.-A police officer making an
arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take
or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a
police station.
57. Person arrested not to be detained more than twenty-four hours.-No police officer shall detain in custody a
person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and
such period shall not, in the absence of a special order of a Magistrate Under Section 167, exceed twenty-four hours
exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court.
21. Chapter VI deals with Processes to compel Appearance. Part A of Chapter VI deals with Summons. Part B deals
with Warrant of arrest. Warrant of arrest contemplated are those issued by a court under Code of Criminal
Procedure Section 76 Code of Criminal Procedure reads as follows:
76. Person arrested to be brought before Court without delay. The police officer or other person executing a
warrant of arrest shall (subject to the provisions of Section 71 as to security) without unnecessary delay bring the
person arrested before the Court before which he is required by law to produce such person:
Provided that such delay shall not, in any case, exceed twenty-four hours exclusive of the time necessary for the
journey from the place of arrest to the Magistrate's Court.
22. Under Section 77 Code of Criminal Procedure, a warrant of arrest may be executed at any place in India.
Chapter XII deals with Information to the Police and their Powers to Investigate. The mandatory duty of police
officer to register first information report has been elaborately considered by a Constitution Bench of this Court in
the decision reported in Lalita Kumari v. Government of Uttar Pradesh and Ors. MANU/SC/1166/2013 : (2014) 2
SCC 1.
23. Section 156 Code of Criminal Procedure reads as follows:

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156. Police officer's power to investigate cognizable case.
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case
which a Court having jurisdiction over the local area within the limits of such station would have power to inquire
into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the
case was one which such officer was not empowered under this Section to investigate.
(3) Any Magistrate empowered Under Section 190 may order such an investigation as above-mentioned.
24. Under Section 156 Code of Criminal Procedure, any police officer in charge of a police station can without order
of a Magistrate investigate any cognizable case which a court having jurisdiction over the local area within the limits
of such station have the power to try. Section 157 deals with Procedure for investigation. The said provision
contemplates inter alia the power to proceed, to the spot, to investigate the facts and circumstance of the case, and if
necessary, take measures for the discovery and arrest of the offender. It is also pertinent to notice Section 167 Code
of Criminal Procedure. It reads as under:
167. Procedure when investigation cannot be completed in twenty-four hours.--(1) Whenever any person is arrested
and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four
hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded,
the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of
sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter
prescribed relating to the case, and shall at the same time forward the Accused to such Magistrate.
(2) The Magistrate to whom an Accused person is forwarded under this Section may, whether he has or has not
jurisdiction to try the case, from time to time, authorise the detention of the Accused in such custody as such
Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case
or commit it for trial, and considers further detention unnecessary, he may order the Accused to be forwarded to a
Magistrate having such jurisdiction:
Provided that--
[(a) the Magistrate may authorise the detention of the Accused person, otherwise than in the custody of the police,
beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall
authorise the detention of the Accused person in custody under this paragraph for a total period exceeding,--
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or
imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety
days, or sixty days, as the case may be, the Accused person shall be released on bail if he is prepared to and does
furnish bail, and every person released on bail under this Sub-section shall be deemed to be so released under the
provisions of Chapter XXXIII for the purposes of that Chapter;]
[(b) no Magistrate shall authorise detention of the Accused in custody of the police under this Section unless the
Accused is produced before him in person for the first time and subsequently every time till the Accused remains in
the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the
Accused either in person or through the medium of electronic video linkage;]
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise
detention in the custody of the police.
[Explanation I.--For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period
specified in paragraph (a), the Accused shall be detained in custody so long as he does not furnish bail.]
[Explanation II.--If any question arises whether an Accused person was produced before the Magistrate as required
under Clause (b), the production of the Accused person may be proved by his signature on the order authorising

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detention or by the order certified by the Magistrate as to production of the Accused person through the medium of
electronic video linkage, as the case may be:]
[Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the
custody of a remand home or recognised social institution.]
[(2-A) Notwithstanding anything contained in Sub-section (1) or Sub-section (2), the officer in charge of the police
station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a
Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial
Magistrate, or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed
relating to the case, and shall, at the same time, forward the Accused to such Executive Magistrate, and thereupon
such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the Accused
person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and, on the expiry
of the period of detention so authorised, the Accused person shall be released on bail except where an order for
further detention of the Accused person has been made by a Magistrate competent to make such order; and, where
an order for such further detention is made, the period during which the Accused person was detained in custody
under the orders made by an Executive Magistrate under this Sub-section, shall be taken into account in computing
the period specified in paragraph (a) of the proviso to Sub-section (2):
Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest
Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which
was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as
the case may be.]
(3) A Magistrate authorising under this Section detention in the custody of the police shall record his reasons for so
doing.
(4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with
his reasons for making it to the Chief Judicial Magistrate.
(5) If in any case triable by Magistrate as a summons-case, the investigation is not concluded within a period of six
months from the date on which the Accused was arrested, the Magistrate shall make an order stopping further
investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special
reasons and in the interests of justice the continuation of the investigation beyond the period of six months is
necessary.
(6) Where any order stopping further investigation into an offence has been made Under Sub-section (5), the
Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the
offence ought to be made, vacate the order made Under Sub-section (5) and direct further investigation to be made
into the offence subject to such directions with regard to bail and other matters as he may specify.
25. Section 43(D)(2) of UAPA provides for the modified application of Section 167.
26. In State of Punjab v. Ajaib Singh MANU/SC/0024/1952 : AIR 1953 SC 10, the court had to deal with ambit of
Article of 22(1) and also the scope of the expression "arrest" contained therein.
16. Broadly speaking, arrests may be classified into two categories, namely, arrests under warrants issued by a court
and arrests otherwise than under such warrants. As to the first category of arrest, Sections 75 to 86 collected Under
Sub-heading "B-Warrant of Arrest" in Chapter VI of the Code of Criminal Procedure deal with arrests in execution
of warrants issued by a court under that Code. Section 75 prescribes that such a warrant must be in writing signed
by the presiding officer, or in the case of a Bench of Magistrates, by any Member of such Bench and bear the seal of
the court. Form No. II of Schedule V to the Code is a form of warrant for the arrest of an Accused person. The
warrant quite clearly has to state that the person to be arrested stands charged with a certain offence. Form No. VII
of that Schedule is used to bring up a witness. The warrant itself recites that the court issuing it has good and
sufficient reason to believe that the witness will not attend as a witness unless compelled to do so. The point to be
noted is that in either case the warrant ex facie sets out the reason for the arrest, namely, that the person to be
arrested has committed or is suspected to have committed or is likely to commit some offence. In short, the warrant
contains a clear accusation against the person to be arrested. Section 80 requires that the police officer or other
person executing a warrant must notify the substance thereof to the person to be arrested, and, if so required, shall

Page 368
show him the warrant. It is thus abundantly clear that the person to be arrested is informed of the grounds for his
arrest before he is actually arrested. Then comes Section 81 which runs thus:
The police officer or other person executing a warrant of arrest shall (subject to the provisions of Section 76 as to
security) without unnecessary delay bring the person arrested before the court before which he is required by law to
produce such person.
17. Apart from the Code of Criminal Procedure, there are other statutes which provide for arrest in execution of a
warrant of arrest issued by a court. To take one example, Order 38 Rule 1 of the Code of Civil Procedure authorises
the court to issue a warrant for the arrest of a Defendant before judgment in certain circumstances. Form No. 1 in
Appendix F sets out the terms of such a warrant. It clearly recites that it has been proved to the satisfaction of the
court that there is probable cause for belief that the Defendant's about to do one or other of the things mentioned
in Rule 1. The court may Under Section 55 read with Order 21 Rule 38, issue a warrant for the arrest of the
judgment-debtor in execution of the decree. Form 13 sets out the terms of such a warrant. The warrant recites the
decree and the failure of the judgment-debtor to pay the decretal amount to the decree-holder and directs the bailiff
of the court to arrest the defaulting judgment-debtor, unless he pays up the decretal amount with costs and to bring
him before the court with all convenient speed. The point to be noted is that, as in the case of a warrant of arrest
issued by a court under the Code of Criminal Procedure, a warrant of arrest issued by a court under the Code of
Civil Procedure quite plainly discloses the reason for the arrest in that it sets out an accusation of default,
apprehended or actual, and that the person to be arrested is made acquainted with the reasons for his arrest before
he is actually arrested.
Also in para 20, this Court laid down as follows:
20. Turning now to Article 22(1) and (2), we have to ascertain whether its protection extends to both categories of
arrests mentioned above, and, if not, then which one of them comes within its protection. There can be no manner
of doubt that arrests without warrants issued by a court call for greater protection than do arrests under such
warrants. The provision that the arrested person should within 24 hours be produced before the nearest Magistrate
is particularly desirable in the case of arrest otherwise than under a warrant issued by the court, for it ensures the
immediate application of a judicial mind to the legal authority of the person making the arrest and the regularity of
the procedure adopted by him. In the case of arrest under a warrant issued by a court, the judicial mind had already
been applied to the case when the warrant was issued and, therefore, there is less reason for making such production
in that case a matter of a substantive fundamental right. It is also perfectly plain that the language of Article 22(2)
has been practically copied from Sections 60 and 61 of the Code of Criminal Procedure which admittedly prescribe
the procedure to be followed after a person has been arrested without warrant. The requirement of Article 22(1) that
no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds
for such arrest indicates that the Clause really contemplates an arrest without a warrant of court, for, as already
noted, a person arrested under a court's warrant is made acquainted with the grounds of his arrest before the arrest
is actually effected. There can be no doubt that the right to consult a legal practitioner of his choice is to enable the
arrested person to be advised about the legality or sufficiency of the grounds for his arrest. The right of the arrested
person to be defended by a legal practitioner of his choice postulates that there is an accusation against him against
which he has to be defended. The language of Article 22(1) and (2) indicates that the fundamental right conferred by
it gives protection against such arrests as are effected otherwise than under a warrant issued by a court on the
allegation or accusation that the arrested person has, or is suspected to have, committed, or is about or likely to
commit an act of a criminal or quasi-criminal nature or some activity prejudicial to the public or the State interest. In
other words, there is indication in the language of Article 22(1) and (2) that it was designed to give protection against
the act of the executive or other non-judicial authority. The Blitz case (Petition No. 75 of 1952), on which Sri
Dadachanji relies, proceeds on this very view, for there the arrest was made on a warrant issued, not by a court, but,
by the Speaker of State Legislature and the arrest was made on the distinct accusation of the arrested person being
guilty of contempt of the legislature. It is not, however, our purpose, nor do we consider it desirable, to attempt a
precise and meticulous enunciation of the scope and ambit of this fundamental right or to enumerate exhaustively
the cases that come within its protection. Whatever else may come within the purview of Article 22(1) and (2),
suffice it to say for the purposes of this case, that we are satisfied that the physical restraint put upon an abducted
person in the process of recovering and taking that person into custody without any allegation or accusation of any
actual or suspected or apprehended commission by that person of any offence of a criminal or quasi-criminal nature
or of any act prejudicial to the State or the public interest, and delivery of that person to the custody of the officer in
charge of the nearest camp Under Section 4 of the impugned Act cannot be regarded as arrest and detention within
the meaning of Article 22(1) and (2). In our view, the learned Judges of the High Court over-simplified the matter
while construing the article, possibly because the considerations hereinbefore adverted to were not pointedly
brought to their attention.

Page 369
[Emphasis supplied]
27. It will be noted that with the proviso in the Code of Criminal Procedure, 1973, in Section 76, in the case of
arrest under a warrant, the person is to be produced before the Court within 24 hours with the exclusion of time
taken for travelling. Such a proviso was absent in Section (81) of the Code of Criminal Procedure, 1898 which was
considered by the Court.
28. In State of U.P. v. Abdul Samad MANU/SC/0102/1962 : AIR 1962 SC 1506, the Respondents who were
husband and wife were arrested for non-compliance with the order of deportation passed against them. They were
sent to Amritsar for being deported to Pakistan. They were produced before the Magistrate on 23rd July, 1960 at
10.00 A.M. who ordered them to be kept in the Civil Lines Police Station. They were brought back to Lucknow on
the 25th July 1960 based on a message from the High Court of Allahabad requiring their production and they were
produced before the Deputy Registrar, High Court who directed them to be produced on the next day of the
morning. The court which was dealing with the writ of Habeas Corpus by the Respondents directed the
Respondents be produced the next day. On 28th July 1960, the High court focussing on the second period i.e. 25th
July 1960 to 2.00 p.m. 27th July, 1960 found that during this period the Respondents having not being produced
before a Magistrate within 24 hours of the commencement of the custody the detention was found to be violative of
Article 22(2). It is on these facts the majority (Justice K. Subba Roa-dissenting) held as follows:
....It is very difficult to appreciate what exactly either of the learned Judges had in mind in making these observations
holding that the guarantee Under Article 22(2) had been violated. During the "second stage" at which the learned
Judges held that the detention has been illegal because of a violation of Article 22(2), the facts were these: The
Respondents had been brought back to Lucknow on a message requiring their production before the High Court.
They reached Lucknow on the 25th at 1 p.m. and were produced at 3 p.m. the same day i.e. within two hours of
reaching Lucknow before the Deputy Registrar. The Deputy Registrar had directed their production the next day
and they were accordingly so produced. Even taking it that the Deputy Registrar was not a judicial authority such as
the learned Judges had in mind, the Respondents had been produced on 26th morning at 10.15 a.m. before the
learned Judges when they were at liberty to make any order regarding the custody which they considered proper and
the time when they were produced before the Judges was admittedly not beyond 24 hours from the time the
Respondents reached Lucknow. On the 26th the learned Judges who took part in the final decision passed an order
directing the production of the Respondents on July 27, 1960 at 2 p.m. which obviously permitted the previous
custody to be continued till further orders. They were produced accordingly at 2 p.m. on that day and by a further
order of July 27, 1960 the learned Judges had directed the release of the Respondents on bail and in pursuance of
this order the Respondents had been released on July 27, 1960 itself. In these circumstances we are at a loss to
understand which is the period during "the second stage" or "on the 27th", when the Respondents could be said to
have been illegally detained for more than 24 hours without production before a judicial authority as required by
Article 22(2). We would add that even if Article 22(2) were construed to require that a person arrested and detained
has to be produced before a Magistrate every 24 hours during his detention, a meaning which it assuredly cannot
bear, though it is not clear to us whether the learned Judges did not understand the Article to require this, even such
a requirement was satisfied in this case as the Respondents were during "the second stage" produced before the
High Court itself "for suitable orders" on the 26th and again on the 27th. We have no desire to comment further on
this judgment of the learned Judges except to say that there was no justification whatsoever for the finding on the
basis of which the learned Judges directed the release of the Respondents.
[Emphasis supplied]
29. The aforesaid reasoning is not inapposite in the context of Respondent's case that only a Magistrate can
authorize detention Under Section 167 Code of Criminal Procedure.
PROCEEDINGS IN THE HIGH COURT OF DELHI
30. The writ petition filed by the Appellant was mentioned before the Chief Justice of the Court on 28.08.2018 at
2:15 p.m. From the judgment, it is further clear that it was taken up at 2:45 p.m. on the same day. The Court initially
ordered that 'no precipitate action be taken' of removing the Appellant till the matter was taken up again at 4:00 p.m.
In the meantime, it would appear that in the transit remand application moved by the Maharashtra police, the CMM,
Saket passed the order on the transit remand application which we have extracted.
31. We have also noticed the contents of the order which was passed at 4:00 p.m. on 28.08.2018. The perusal of the
judgment further reveals that the counsel for the state of Maharashtra, in fact, raised the preliminary objection to the
maintainability of the writ. It reads as follows:
Page 370
6. Mr. Vinay Navare, learned Counsel appearing for the State of Maharashtra, raised a preliminary objection to the
maintainability of the present writ petition relying on the recent judgment dated 5th September 2018 of a three judge
bench of the Supreme Court in Crl. A. 1124 of 2018 (State of Maharashtra v. Tasneem Rizwan Siddiquee). He
submitted that the Supreme Court has, in said decision, reiterated the settled position in law, as explained in the
decisions in Manubhai Ratilal Patel v. State of Gujarat, MANU/SC/0800/2012 : (2013) 1 SCC 314 and Saurabh
Kumar v. Jailor, Koneil Jail, MANU/SC/0626/2014 : (2014) 13 SCC 436, that once a person is in judicial custody
pursuant to a remand order passed by a magistrate in connection with an offence under investigation, a writ of
habeas corpus is not maintainable.
32. The High Court tides over this objection by holding as follows:
9. On the question of the maintainability of the present petition, as already noticed earlier, this Court had even prior
to the learned CMM passing the order on the remand application directed at around 2.45 pm on 28th August 2018
that "no further precipitate action of removing the Petitioner from Delhi be taken till the matter be again taken up at
4 pm." Mr. Rahul Mehra, learned Standing Counsel for the State (NCT of Delhi) informed the Court that he had
conveyed the aforementioned interim order to the concerned police officials at 2.54 pm on 28th August 2018. While
it is not clear if the learned CMM was actually informed of this Court's interim order, the arrest memo of the
Petitioner shows that he was arrested at 2.15 pm at his residence in Nehru Enclave. Given a reasonable time taken
to reach the Saket Court complex, it is unlikely that the learned CMM heard the matter, perused the remand
application and then passed the order before 2.45 pm, i.e. before this Court passed the interim order.
10. Consequently, when the present habeas corpus petition was entertained and the above interim order was passed
by this Court, there was no order of the learned CMM granting transit remand of the Petitioner. In each of the
aforementioned decisions cited by Mr. Navlakha the entertaining of the habeas corpus petition by the High Court
was subsequent to the transit remand order passed by the concerned Judicial Magistrate. This one factor
distinguishes the present case from the above cases. Consequently, this Court rejects the preliminary objection raised
by Mr. Navakre as to the maintainability of the present writ petition.
33. The High Court, thereafter, proceeded to find that even before a Magistrate, before whom the transit remand
application is filed, the mandatory requirement of Section 167 is that the entries in the case diary should be
produced, is applicable. He is required to apply his mind to ensure there exists material in the form of entries to
justify the prayer for transit remand. While the Magistrate examining the transit remand application is not required
to go into the adequacy of the material, he is obliged to satisfy himself from about the existence of the material. He
further found that the Magistrate is bound to ask the arrested person whether in fact, he has been informed about
the grounds of arrest and whether he requires to consult and be defended by any legal practitioner of his choice.
Though, a duty lawyer empanelled under the Legal Services Authority Act, 1987 was shown representing the
Appellant, the High Court noticed that the Magistrate did not ask the counsel of the arrested person whether he was
informed about the grounds of arrest and whether he asked to consult and be defended by the legal practitioner of
his choice. The High Court emphasized that this requirement does not get diluted only because the proceedings are
for transit remand. It was found be the mandate Under Article 22(1) of the Constitution. The appearance of the
duty lawyer was found to be essentially cosmetic and not in the true spirit of Article 22(1). The materials in the case
diary were found to be written in the Marathi language. It was found undisputed that the Magistrate was not
conversant with the Marathi language. This disabled the Magistrate from appreciating whether the requirements
Under Section 41(1)(b)(a) of the Code of Criminal Procedure stood satisfied. It is thereafter noticed that the Court
disposed of the writ petition with the findings and the directions as noted in paragraphs 28, 29, 30 and 31 which we
have already extracted.
34. The SLP against the judgment was disposed of as follows on 11.08.2020:
Heard the learned Solicitor General and the learned Counsel appearing in the matter at length.
The learned Solicitor General has submitted that the High Court should not have interfered in the matter and the
order should not have been passed and it is palpably illegal. Ms. Nithya Ramakrishnan, learned Counsel, has
submitted that the order is absolutely correct and there is no ground to make any interference in the order.
Be that as it may, the exercise is academic in nature and the Accused have surrendered on 14.04.2020, pursuant to
the order passed by this Court on 08.04.2020. We do not propose to go into the rival submissions, as the petitions
have been rendered infructuous for practical purposes.

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However, we direct that the impugned order shall not be treated as a precedent for any other case, questions of law
are kept open.
The Special Leave Petitions and the pending interlocutory application(s), if any, is/are disposed of.
NATURE OF HOUSE ARREST
35. The High Court in the impugned order has itself found that the period of 34 days spent in house arrest by the
Appellant amounted to custody. We, however, consider it necessary to articulate our views regarding the nature of
house arrest.
36. In an Article "A Brief History of House Arrest and Electronic Monitoring" by J. Robert Lilly and Richard A.
Ball, we find the following discussion:
HOME CONFINEMENT "House arrest" has a long history dating at least to St. Paul the Apostle, who is reported
to have been placed under "house arrest" (custodia libera) in Rome at about the age of 60. St. Paul's sentence lasted
two years during which time he paid rent and earned his keep as a tent maker, thus avoiding becoming a ward of the
church or state. While it would go far beyond the historical record to claim that St. Paul was the first person to pay
for his keep under conditions of house arrest, it is interesting to note that many of today's "house arrest" programs
expect their clients to pay supervision fees, restitution, and their living expenses. Galileo Galilei, the Florentine
philosopher, physicist, and astronomer, also experienced "house arrest" after a "second condemnation" trial in
Rome in 1633. After the trial, he returned to Florence and house arrest for the rest of his life. More recently, Czar
Nicholas II of Russia and his family were kept under house arrest in 1917 until their deaths in 1918. This history is a
cause for concern among some because of the traditional use of the practice as a means of silencing political dissent.
South Africa, for example, has a long history of control through "banning" and societies found in Poland, South
Korea, India, and the Soviet Union are known to employ "house arrest" primarily to deal with troublesome political
dissenters. On the other hand, France introduced the concept of control judiciare in 1970 as a fairly straightforward
form of pre-trial detention involving a provision that employed home confinement as an alternative for common
offenders. In 1975, Italy initiated a policy of affidamento in provo ai servizio sociale (trial custody), which may be
described as a form of parole following a shock period of three months incarceration. Other European countries
have also experimented with some manner of home confinement as a means of dealing with a variety of offenders.
The traditional use of "house arrest" should not in itself become a rationale for rejecting it. In the United States,
"home detention" had been put in practice in St. Louis as early as 1971.
Home confinement as a policy for use with adult offenders began to draw more attention in 1983 with the delivery
of two different papers on the subject, passage of the Correctional Reform Act, and the use of an "electronic
bracelet" to monitor compliance with home confinement on the part of an offender in New Mexico. The latter was
inspired by a New Mexico district court judge, who read a comic strip where "Spiderman" was being tracked by a
transmitter fixed to his wrist. The judge approached an engineer, who designed a device consisting of an electronic
bracelet approximately the size of a pack of cigarettes that emitted an electronic signal that was picked up by a
receiver placed in a home telephone. This bracelet could be strapped to the ankle of an offender in such a way that
if he or she moved more than approximately 150 feet from the home telephone, the transmission signal would be
broken, alerting authorities that the offender had left the premises. Officials in New Mexico gave approval for trial
use of the device and a research project funded by the National Institute of Justice eventually reported successful
results with this "electronic monitoring.
37. In the United States, in December 1985, one Ms. Murphy stood convicted in a case of insurance fraud. She
could have been packed off to a jail for a maximum period of 50 years. Instead, the Federal Judge placed her under
house arrest (See 108 F.R.D. 437, 439 (E.D.N.Y. 1985). This is what the Federal Judge inter alia ordered:
The sentencing of Maureen Murphy requires, in the court's opinion, a sentence not heretofore used in this District
and almost never used in the country in the federal court. It is used elsewhere in the world and is considered by
some to be highly objectionable. The difference, however, is that in other countries it is used to repress political
dissent and before trial. Here it will be used after a full trial where the Defendant has been found guilty of a serious
offense. The penalty is house arrest.
She was allowed to leave her apartment only for medical reasons, employment, religious services or to conduct
essential food shopping. House arrest has been employed in the United States essentially as an intermediate level
penal sanction. In other words, upon being found guilty instead of sentencing the convict to a term in prison and in

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lieu of incarceration, as a condition of probation, the convict is compelled to confine himself to his place of
residence. Interestingly, consistent with the constitutional protection afforded under United States constitution, the
house arrest does not visit the convict with an absolute restriction from leaving his home. In the Article "House
Arrest", a critical analysis of an intermediate level penal sanction by Jeffrey N. Hurwitz, we notice the following:
House arrest is a form of intensive law enforcement supervision characterized by confinement to the offender's
place of residence with permission to leave only for explicit, pre-authorized purposes. Generally, it is imposed as a
penal sanction in lieu of incarceration and mandated by the sentencing judge as a condition of probation. In Florida,
however, house arrest is considered a criminal sanction entirely separate from probation. In addition, at least one
jurisdiction has reported using house arrest for individuals who have been released on their own recognizance while
awaiting trial.
For example, a number of states and counties have recently added intensive supervision to probation programs in
order to provide an intermediate punishment in lieu of incarceration for selected offenders. Many of the reported
conditions of intensive supervision strategies are similar or even identical to those imposed as part of the house
arrest sanction. For example, multiple weekly contacts between offenders and probation officers, as well as
mandatory employment, may be common to both control techniques.
The unique restriction on the offender's freedom to leave home is the distinguishing feature of the house arrest
sanction. Although other heightened surveillance sanctions generally include strict curfews, house arrest allows the
offender to leave her residence only for specific purposes, unless time spent away from home is used for pre-
authorized ends, the offender risks detention and incarceration.
The Florida Community Control statute mandates that the court impose "intensive supervision and surveillance for
an offender placed into community control, which may include ... confinement to an agreed-upon residence during
hours away from employment and public service activities. The Florida law has classified three tiers of permissible
travel, ranked according to the purposes for spending time away from the site of confinement. "Essential travel"
includes travel for work, religious expression, vocational or educational training, self-improvement programming,
public service, and scheduled appointments with the supervising officer. Movement from the home oriented toward
"the fulfilment of the basic needs of the community controllee" is considered "acceptable travel. All three types of
travel must be approved in advance, although movements for family emergencies may occur without pre-
authorization provided that they are reported no later than the following day.
We may also notice the following discussion in the said article:
While the conditions of house arrest imposed in Murphy are highly restrictive, another federally imposed home
confinement program establishes even greater control. In United States v. Wayte the Defendant was convicted for
failure to register with the Selective Service System." The imposition of sentence was suspended and the Defendant
was placed on probation for six months. The court ordered that the entire probationary period be spent under
house arrest at the residence of Wayte's grandmother, and that Wayte be allowed to leave his site of confinement
only for "emergency purposes with the permission of the probation officer. The house arrest regime in Wayte is the
most restrictive yet reported. Because Wayte is unable to leave home at all, he is precluded from obtaining outside
employment. All travel from his site of confinement must be only in response to a life-threatening crisis; apparently,
even movement for religious expression must be approved by the probation officer as an emergency. He is
functionally isolated and removed from the outside world, as if he were incarcerated, his wife acts as his
intermediary with the community.
38. In the caption "the goals of house arrest", we notice the following discussion:
Yet house arrest, generally imposed as a special condition of probation, includes a distinctly retributive component.
The sentencing court in Murphy describes the incorporation of retribution, humiliation, and deterrence into the
traditionally palliative scheme of probation: There will be some people who will believe that this sentence is much
too lenient. Others will believe it too humiliating. Public humiliation is a part of the punishment.... In many respects
the colonial use of stocks and the equivalent punishment in other societies served a useful goal in providing swift
social disapproval as a deterrent. It is obvious that some form of this disapproval is required under modern
conditions.

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39. Among the advantages which have been perceived in promoting the house arrest, have been avoidance of
overcrowding of the prisons and also cost saving. However, concerns have also emerged in regard to the issues
arising out of the proper supervision of house arrest.
40. The said Article goes on to describe house arrest as a community based probationary sanction. We may also
notice the following discussion under the heading of waiver and probation being an act of grace:
Moreover, because of the particularly restrictive nature of home confinement, the implicated constitutional right
might not be waivable. For example, if a confinee's housing is substandard, home confinement imposed by the state
may violate the eighth amendment ban on cruel and unusual punishment. Similarly, it is likely that the offender
might sacrifice a right that is not alienable to the state. If a regime of home confinement does not include access to a
house of worship, the state will have coerced from the offender a waiver or transfer of the inalienable right to
freedom of worship guaranteed by the free exercise Clause of the first amendment.
[Refer to decision by EC. Also refer to Russian.]
41. It will be noticed that ordinarily in the United States, house arrest is ordered after the trial is conducted and an
Accused is found guilty. No doubt, it has also been resorted in respect of juveniles even during the pendency of the
proceedings against him.
42. In Buzadji v. Moldova; 398 Butterworths Human Rights Cases 42, the European Court of Human Rights
(Grand Chamber), was dealing with a case against the Republic of Moldova lodged Under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms, 1950. Dealing with the questions,
whether the applicant is deprived of liberty and whether the applicant had waived his right to liberty, inter alia, the
Court held as follows:
As it does in many other areas, the court insists in its case law on an autonomous interpretation of the notion of
deprivation of liberty. A systematic reading of the Convention shows that mere restrictions on the liberty of
movement are not covered by Article 5 but fall under Article 2(1) of Protocol No. 4. However, the distinction
between the restriction of movement and the deprivation of liberty is merely one of degree or intensity, and not one
of nature or substance. In order to determine whether someone has been 'deprived of his liberty' within the meaning
of Article 5, the starting point must be the concrete situation and account must be taken of a whole range of criteria
such as the type, duration, effects and manner of implementation of the measure in question (see Guzzardi v. Italy
(1980) 3 EHRR 333 : [1980] ECHR 7367/76, paras 92-93).
According to the court's case law (see, among many others, Mancini v. Italy (App No. 44955/98) (judgment, 2
August), para 17; Lavents v. Latvia (App No. 58442/00) (judgment, 28 November 2002), paras 64-66; Nikolova v.
Bulgaria (No. 2) [2004] ECHR 40896/98, para 60; Ninescu v. Moldova (App No. 47306/07) (judgment, 15 July
2014), para 53; and Delijorgji v. Albania [2015] ECHR 6858/11, para 75), house arrest is considered, in view of its
degree and intensity, to amount to deprivation of liberty within the meaning of Article 5 of the Convention.
In Storck v. Germany (2005) 43 EHRR 96 : [2005] ECHR 61603/00, para 75 the court held that the right to liberty
is too important in a 'democratic society' within the meaning of the Convention for a person to lose the benefit of
the protection of the Convention for the sole reason that he gives himself up to be taken into detention. Detention
might violate Article 5 even though the person concerned might have agreed to it (see De Wilde v. Belgium (1971) 1
EHRR 373 : [1971] ECHR 2832/66, para 65).
We may also notice:
The government submitted that lesser reasons were required in order to justify house arrest than detention in an
ordinary remand facility because the former measure was more lenient than the latter.
It is true that in most cases house arrest implies fewer restrictions and a lesser degree of suffering or inconvenience
for the detainee than ordinary detention in prison. That is the case because detention in custody requires integrating
the individual into a new and sometimes hostile environment, sharing of activities and resources with other inmates,
observing discipline and being subjected to supervision of varying degrees by the authorities twenty-four hours a
day. For example, detainees cannot freely choose when to go to sleep, when to take their meals, when to attend to
their personal hygiene needs or when to perform outdoor exercise or other activities. Therefore, when faced with a

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choice between imprisonment in a detention facility and house arrest, as in the present case, most individuals would
normally opt for the latter.
However, the court notes that no distinction of regime between different types of detention was made in the
Letellier principles (see para 92, above). It further reiterates that in Lavents (cited above), where the court was called
upon to examine the relevance and sufficiency of reasons for depriving the applicant of liberty pending trial for a
considerable period of time, the Respondent government had unsuccessfully argued that different criteria ought to
apply to the assessment of the reasons for the impugned restriction on liberty as the applicant had been detained not
only in prison but also been held in house arrest and in hospital. The court dismissed the argument, stating that
Article 5 did not regulate the conditions of detention, referring to the approach previously adopted in Mancini (cited
above) and other cases cited therein. The court went on to specify that the notions of 'degree' and 'intensity' in the
case law, as criteria for the applicability of Article 5, referred only to the degree of restrictions to the liberty of
movement, not to the differences in comfort or in the internal regime in different places of detention. Thus, the
court proceeded to apply the same criteria for the entire period of deprivation of liberty, irrespective of the place
where the applicant was detained.
HOUSE ARREST IN INDIA
43. In India, the concept of house arrest has its roots in laws providing for preventive detention. Section 5 of the
National Security Act, 1980, is a law providing for preventive detention. Section 5 reads as follows:
5. Power to regulate place and conditions of detention.--Every person in respect of whom a detention order has
been made shall be liable--
(a) to be detained in such place and under such conditions, including conditions as to maintenance, discipline and
punishment for breaches of discipline, as the appropriate Government may, by general or special order, specify; and
(b) to be removed from one place of detention to another place of detention, whether within the same State or in
another State, by order of the appropriate Government: Provided that no order shall be made by a State
Government under Clause (b) for the removal of a person from one State to another State except with the consent
of the Government of that other State.
Article 22(3) reads as follows:
22(3). Nothing in Clauses (1) and (2) shall apply
(a) to any person who for the time being is an enemy alien; or
(b) to any person who is arrested or detained under any law providing for preventive detention.
Thus, the safeguards Under Article 22(1) and Article 22(2) are not available under a law providing for preventive
detention.
44. We notice that State of Rajasthan and Ors. v. Shamsher Singh MANU/SC/0112/1985 : AIR (1985) SC 1082
was a case under the said act. It was a case where the High Court had after quashing the order of detention on
certain grounds gave certain directions. The detenu was to be released from the central jail but thereafter it was
directed that the detenu be placed under house arrest or in place like Dak Bungalow or Circuit House with members
of his family consisting of his wife and children. The authorities were to permit interview with other relatives also if
the detenu was kept outside the house. This Court allowed the appeal of the state finding that the requirements of
law in relation to detention had been complied with and the detention was wrongly quashed. In A.K. Roy and Ors.
v. Union of India (UOI) and Ors. MANU/SC/0051/1981 : AIR (1982) SC 710 a Constitution Bench also dealt with
the issue relating to preventive detention and house arrest in the said context. We may notice only paragraph 74.
74. By Section 5, every person in respect of whom a detention order has been made is liable-
a. to be detained in such place and under such conditions, including conditions as to maintenance, discipline and
punishment for breaches of discipline, as the appropriate Government may, by general or special order, specify: and

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b. to be removed from one place of detention to another place of detention, whether in the same State or another
State, by order of the appropriate Government.
The objection of the Petitioners to these provisions on the ground of their unreasonableness is not wholly without
substance. Laws of preventive detention cannot, by the back-door, introduce procedural measures of a punitive
kind. Detention without trial is an evil to be suffered, but to no greater extent and in no greater measure than is
minimally necessary in the interest of the country and the community. It is neither fair nor just that a detenu should
have to suffer detention in "such place" as the Government may specify. The normal Rule has to be that the detenu
will be kept in detention in a place which is within the environs of his or her ordinary place of residence. If a person
ordinarily resides in Delhi, to keep him in detention in a far off place like Madras or Calcutta is a punitive measure
by itself which, in matters of preventive detention at any rate, is not to be encouraged. Besides, keeping a person in
detention in a place other than the one where he habitually resides makes it impossible for his friends and relatives
to meet him or for the detenu to claim the advantage of facilities like having his own food. The requirements of
administrative convenience, safety and security may justify in a given case the transfer of a detenu to a place other
than that where he ordinarily resides, but that can only be by way of an exception and not as a matter of general rule.
Even when a detenu is required to be kept in or transferred to a place which is other than his usual place of
residence, he ought not to be sent to any far-off place which, by the very reason of its distance, is likely to deprive
him of the facilities to which he is entitled. Whatever smacks of punishment must be scrupulous avoided in matters
of preventive detention.
45. Thus 'house arrests' have been resorted to in India, in the context of law relating to 'preventive detention'. What
is however relevant is that preventive detention is also a form of forced detention. House arrest is also custody and
forced detention.
46. As to whether such detention would qualify as custody Under Section 167 will be considered when we discuss
the provision relating to set off Under Section 428 of Code of Criminal Procedure.
A LOOK AT PRISONS IN INDIA
47. The executive summary published by the National Crime Records Bureau for 2019 is as follows:
Prison Statistics India-2019

Executive Summary
Prisons-Types & Occupancy
1. The total number of prisons at national level has increased from 1,339 in 2018 to 1,350 in 2019, having increased
by 0.82%.
2. The 1,350 prisons in the country consist of 617 Sub Jails, 410 District Jails, 144 Central Jails, 86 Open Jails, 41
Special Jails, 31 Women Jails, 19 Borstal School and 2 Other than the above Jails.
3. The highest number of jails was reported in Rajasthan (144) followed by Tamil Nadu (141), Madhya Pradesh
(131), Andhra Pradesh (106), Karnataka (104) and Odisha (91). These Six (6) States together cover 53.11% of total
jails in the country as on 31st December, 2019.
4. Delhi has reported the highest number of Central jails (14) in the country. States/UTs like Arunachal Pradesh,
Meghalaya, A & N Island, D & N Haveli, Daman & Diu and Lakshadweep have no central Jail as on 31st
December, 2019.
5. Uttar Pradesh has reported the highest number of District jails (62). States/UTs like Goa, Chandigarh, D & N
Haveli, Daman & Diu, Delhi, Lakshadweep and Puducherry have no District Jail as on 31st December, 2019.

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6. Tamil Nadu has reported highest number of Sub-jails (96). States/UTs like Arunachal Pradesh, Goa, Haryana,
Meghalaya, Mizoram, Nagaland, Sikkim, Chandigarh and Delhi have no sub-jail in their States/UTs, as on 31st
December, 2019.
7. Only 15 States/UTs were having Women Jails (31 Women Jails) with a total capacity of 6,511 in India. These
States/UTs (number of Jails, Inmates Capacity) are-Rajasthan (7) (1048), Tamil Nadu (5) (2018), Kerala (3) (232),
Andhra Pradesh (2) (280), Bihar (2) (152), Gujarat (2) (410), Delhi (2) (648), Karnataka (1) (100), Maharashtra (1)
(262), Mizoram (1) (90), Odisha (1) (55), Punjab (1) (320), Telangana (1) (250), Uttar Pradesh (1) (420) and West
Bengal (1) (226) and The rest of 21 States/UTs have no separate Women Jail as on 31st December, 2019.
8. The actual capacity of prisons has increased from 3,96,223 in 2018 to 4,03,739 in 2019 (as on 31st December of
each year), having increased by 1.90%. Number of prisoners lodged in various jails has increased from 4,66,084 in
2018 to 4,78,600 in 2019 (as on 31st December of each year), having increased by 2.69% during the period.
9. Out of the total capacity 4,03,739 in 1,350 prisons in 2019, the Central Jails of the country were having the highest
capacity of inmates (1,77,618) followed by the District Jails (capacity of 1,58,986 inmates) and the Sub Jails (capacity
of 45,071 inmates). Among the other types of jails, Special Jails, Open Jails and Women Jails were having a capacity
of 7,262, 6,113 and 6,511 inmates respectively as on 31st December, 2019. The highest number of inmates were
lodged in Central Jails (2,20,021) followed by District Jails (2,06,217) and Sub Jails (38,030) as on 31st December,
2019. The number of inmates in Women Jails were 3,652.
10. Uttar Pradesh has reported the highest capacity in their jails (capacity of 60,340 inmates in 72 jails contributing
14.95% of total capacity) followed by Bihar (capacity of 42,222 inmates in 59 Jails contributing 10.46% of total
capacity) and Madhya Pradesh (capacity of 28,718 inmates in 131 jails contributing 7.1% of total capacity).
11. Out of the 4,78,600 prisoners, 4,58,687 were male prisoners and 19,913 were female prisoners.
12. The occupancy rate has increased from 117.6% in 2018 to 118.5% in 2019 (as on 31st December of each year).
13. The highest occupancy rate was in District Jails (129.7%) followed by Central Jails (123.9%) and Sub Jails
(84.4%). The occupancy rate in Women Jails was 56.1% as on 31st December, 2019.
14. Uttar Pradesh has reported the highest number of prisoners (1,01,297) in its jails contributing 21.2% followed by
Madhya Pradesh (44,603), Bihar (39,814), Maharashtra (36,798), Punjab (24,174) and West Bengal (23,092) as on
31st December, 2019. These States together are contributing around 56.4% of total prisoners in the country.
15. Delhi has reported the highest occupancy rate (174.9%) followed by Uttar Pradesh (167.9%) and Uttarakhand
(159.0%) as on 31st December, 2019.
16. The capacity in 31 Women Jails was 6,511 with the actual number of women prisoners in these Women Jails was
3,652 (Occupancy Rate: 56.1%). The capacity of Women Inmates in other types of Jail (i.e. except Women Jails) was
21,192 with the actual number of women inmates in these jails was 16,261 (Occupancy Rate: 76.7%) as on 31st
December, 2019.
17. Uttarakhand has reported the highest female occupancy rate (170.1%) followed by Chhattisgarh (136.1%) and
Uttar Pradesh (127.3%). However, the highest number of female inmates were confined in the Jails of Uttar Pradesh
(4,174) followed by Madhya Pradesh (1,758) and Maharashtra (1,569).
Prisoners-Types & Demography
1. During the year 2019, a total of 18,86,092 inmates were admitted in various jails of the country.
2. A total of (4,78,600) prisoners as on 31st December, 2019 were confined in various jails across the country. The
number of Convicts, Undertrial inmates and Detenues were reported as 1,44,125, 3,30,487 and 3,223 respectively

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accounting for 30.11%, 69.05% and 0.67% respectively at the end of 2019. Other prisoners accounted for 0.2% (765
prisoners) of total prisoners.
3. Convicted Prisoners
a. The number of convicted prisoners has increased from 1,39,488 in 2018 to 1,44,125 in 2019 (as on 31st
December of each year), having increased by 3.32% during the period.
b. Out of total 1,44,125 convicts, the highest number of convicted prisoners were lodged in Central Jails (66.2%,
95,470 convicts) followed by District Jails (27.0%, 38,846 convicts) and Open Jails (3.0%, 4,288 convicts) as on 31st
December, 2019.
c. Uttar Pradesh has reported the maximum number of convicts (19.2%, 27,612 convicts) in the country followed by
Madhya Pradesh (14.1%, 20,253 convicts) and Maharashtra (6.3%, 9,096 convicts) at the end of 2019.
d. Among the 1,44,125 convicts, 325 were civil convicts.
4. Undertrial Prisoners
a. The number of undertrial prisoners has increased from 3,23,537 in 2018 to 3,30,487 in 2019 (as on 31st
December of each year), having increased by 2.15% during this period.
b. Among the 3,30,487 undertrial prisoners, the highest number of undertrial prisoners was lodged in District Jails
(50.5%, 1,66,917 undertrials) followed by Central Jails (36.7%, 1,21,342 undertrials) and Sub Jails (10.6%, 35,059
undertrials) as on 31st December, 2019.
c. Uttar Pradesh has reported the maximum number of undertrials (22.2%, 73,418 undertrials) in the country
followed by Bihar (9.5%, 31,275 undertrials) and Maharashtra (8.3%, 27,557 undertrials) at the end of 2019.
d. Among the 3,30,487 undertrial prisoners, only 91 were civil inmates.
5. Detenues
a. The number of detenues has increased from 2,384 in 2018 to 3,223 in 2019 (as on 31st December of each year),
having increased by 35.19% during this period.
b. Among the 3,223 detenues, the highest number of detenues were lodged in Central Jails (81.4%, 2,622 detenues)
followed by District Jails (9.9%, 318 detenues) and Special Jails (6.1%, 196 detenues) as on 31st December, 2019.
c. Tamil Nadu has reported the maximum number of detenues (38.5%, 1,240) in the country followed by Gujarat
(21.7%, 698) and Jammu & Kashmir (12.5%, 404) at the end of 2019.
6. Women Prisoners with Children
a. There were 1,543 women prisoners with 1,779 children as on 31st December, 2019.
b. Among these women prisoners, 1,212 women prisoners were undertrial prisoners who were accompanied by
1,409 children and 325 convicted prisoners who were accompanied by 363 children.
7. Age-group of the Prisoners
a. As on 31st December, 2019 the maximum number of inmates (2,07,942 inmates, 43.4%) were belonging to the
age group 18-30 years followed by the age group 30-50 years (2,07,104 inmates, 43.3%).
b. 63,336 inmates (13.2%) were belonging to the age group above 50 years.

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c. 218 inmates belonged to the age group of 16-18 years.
8. Education
a. Among the 4,78,600 prisoners, literacy profile of 1,98,872 (41.6%) prisoners was Below Class X, 1,03,036 (21.5%)
prisoners were Class X & above but below Graduation, 30,201 (6.3%) prisoners were having a Degree, 8,085 (1.7%)
prisoners were Post Graduates and 5,677 (1.2%) prisoners were Technical Diploma/Degree holders.
b. A total of 1,32,729 (27.7%) prisoners were Illiterate.
9. Domicile of Origin of Prisoners
a. Among the 4,78,600 prisoners as on 31st December, 2019, around 90.8% (4,34,564 inmates) of prisoners
belonged to the State followed by prisoners belonging to the Other States (8.0%, 38,428 inmates) and prisoners
belonging to the Other Country (1.2%, 5,608 inmates).
b. Among the 1,44,125 convicts, 92.4% convicts (1,33,228 inmates) belonged to the State while 6.1% (8,726
inmates) and 1.5% (2,171 inmates) belonged to the Other States and Other Country respectively.
c. Haryana has reported the most number of other State domicile convicts (15.5%, 1,353 convicts) followed by
Delhi (9.8%, 855 convicts) and Maharashtra (9.2%, 800 convicts) as on 31st December, 2019.
d. Among the 3,30,487 undertrial prisoners, 90.2% (2,98,208 inmates) belonged to the State while 8.9% (29,300
inmates) and 0.9% (2,979 inmates) belonged to the Other States and Other Country respectively.
e. Maharashtra has reported the highest number of undertrial prisoners of other states (16.0%, 4,675 inmates)
followed by Uttar Pradesh (11.8%, 3,470 inmates) and Delhi (11.8%, 3,453 inmates) at the end of 2019.
Foreign Prisoners
1. The number of prisoners of foreign nationality (as on 31st December of each year) has increased from 5,168 in
2018 to 5,608 in 2019, having increased by 8.51% during this period.
2. The percentage share of foreign prisoners out of total prisoners has increased from 1.1% in 2018 to 1.2% in 2019
(as on 31st December of each year).
3. Among 5,608 prisoners of foreign nationality at the end of 2019, 4,776 were Males and 832 were females.
4. Among these foreign national prisoners, 38.7% (2,171 inmates) were Convicts, 53.1% (2,979 inmates) were
Undertrials and 0.7% (40 inmates) were Detenues.
5. Among the foreign convicts, the highest number of foreign convicts were from Bangladesh (67.7%, 1,470
convicts) followed by Nepal (10.5%, 228 convicts) and Myanmar (7.1%,155 convicts) at the end of 2019.
Prison-Budget & Infrastructure
1. The total budget for the financial year 2019-20 for all prisons in the country was ' 6818.1 Crore. The actual
expenditure was ' 5958.3 Crore which is 87.39% of total annual budget for FY 2019-20.
2. A total of ' 2060.96 Crore was spent on inmates during FY 2019-20 which is almost 34.59% of total annual
expenditure of all prisons for FY 2019-20.

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3. Almost 47.9% (' 986.18 Crore) of total expenses on inmates were spent on Food followed by 4.3% (' 89.48 Crore)
on Medical matters, 1.0% (' 20.27 Crore) on welfare activities, 1.1%(' 22.56 Crore) on Clothing and 1.2% (' 24.20
Crore) on Vocational/Educational trainings.
4. Among all the States/UTs, out of total expenditure, Haryana has spent the highest share of expenditure on
inmates (100.0%, ' 272.62 Crore) followed by Andhra Pradesh (88.1%, ' 152.24 Crore) and Delhi (66.2%, ' 310.02
Crore) during the Financial Year 2019-20.
5. Among the 1,350 prisons, 269 prisons were renovated/expanded during 2019.
6. Among the 1,350 prisons, 808 prisons were having Video Conference facility as on 31st December 2019.
7. A total of 33,537 quarters were available against the actual staff strength of 60,787 as on 31st December, 2019.
48. According to the data published by the National Crime Records Bureau (NCRB) the conditions relating to jails
and prisoners is fairly alarming. There were a total number of 1350 prisons as of the year 2019. 1350 prisons
consists of 617 Sub Jails, 410 District Jails, 144 Central Jails, 86 Open Jails, 41 Special Jails, 31 Women Jails, 19
Borstal School and 2 Other than the above jails.
49. A perusal of the executive summary would reveal an alarming state of affairs as far as occupancy rate is
concerned. It has climbed to 118.5 percent in 2019 as on 31st December. The occupancy rate is alarming for male
prisoners. In fact, during 2019, a total of 18,86,092 inmates were admitted in the jails. The figure of 4,78,600
prisoners as on 31st December, 2019 is the figure obviously after considering the number of prisoners who would
have been inter alia bailed out. The number of under trial prisoners in 2019 was 3,30,487 which in fact constituted
69.05 per cent of the total No. of prisoners. Delhi had the highest occupancy rate of 174.9 percent followed by
Uttar Pradesh which came second with 167.9 percent. This means that in Delhi a prison which was meant to be
occupied by 100 persons, was used for accommodating 174 persons. We cannot also be oblivious to the fact that the
figures represent the official version.
50. There is a tremendous amount of overcrowding in jails in India. Secondly, a very large sum (Rs. 6818.1 crore)
was the budget on prisons. Both aspects are relevant in the context of the possibilities that house arrest offer.
51. In the context of the rights conferred on citizens Under Article 19 which are essentially constitutional freedoms
or rather the enumerated rights as explained by this Court in Maneka Gandhi v. Union of India
MANU/SC/0133/1978 : AIR 1978 SC 597, when a citizen is placed on house arrest, which has the effect of
depriving him of any freedom, it will not only be custody but it would involve depriving citizens under custody of
the fundamental freedoms unless such freedoms are specifically protected. A person has a fundamental right to
move in any part of the country. It is obvious that in the case of a person undergoing a house arrest and in the teeth
of an absolute prohibition, in the facts of the case forbidding the Appellant from moving outside his home, the
hallmark of custody described in the case of incarceration is equally present. Personal liberty perhaps is the most
important of all values recognized as such under the constitution. It is to be jealously guarded from any
encroachment, save where such intrusion has the clear sanction of law. The expression "procedure established by
law" has received an expansive and liberal exposition in decisions of this Court commencing from Maneka Gandhi
(supra). Right to personal liberty is the birth right of every human being. The right Under Article 21 is undoubtedly
available to citizens and non-citizens. While personal liberty is a wide expression capable of encompassing within its
fold, many elements apart from the right to be protected against the deprivation of liberty in the sense of the
freedom from all kinds of restraints imposed on a person, the irreducible core of personal liberty, undoubtedly,
consist of the freedom against compelled living in forced custody.
52. Here we bear in mind the concept of negative liberty. In the celebrated lecture, "Two Concepts of Liberty" by
Isaiah Berlin, he states as follows, inter alia:
The notion of 'negative' freedom I am normally said to be free to the degree to which no human being interferes
with my activity. Political liberty in this sense is simply the area within which a man can do what he wants. If I am
prevented by other persons from doing what I want I am to that degree unfree; and if the area within which I can
do what I want is contracted by other men beyond a certain minimum, I can be described as being coerced, or, it
may be, enslaved. Coercion of not, however, a term that covers every form of inability. If I say that I am unable to
jump more than 10 feet in the air, or cannot read because I am blind or cannot understand the darker pages of
Hegel, it would be eccentric to say that I am to that degree enslaved or coerced. Coercion implies the deliberate

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interference of other human beings within the area in which I wish to act. You lack political liberty or freedom only
if you are prevented from attaining your goal by human beings. Mere incapacity to attain your goal is not lack of
political freedom. This is brought out by the use of such modern expressions as 'economic freedom' and its
counterpart, 'economic slavery'. It is argued, very plausibly, that if a man is too poor to afford something on which
there is no legal ban-a loaf of bread, a journey round the world, recourse to the law courts-he is as little free to have
it as he would be if it were forbidden him by law. If my poverty were a kind of disease, which prevented me from
buying bread or paying for the journey round the world, or getting my case heard, as lameness prevents me from
running, this inability would not naturally be described as a lack of freedom at all, least of all political freedom. It is
only because I believe that my inability to get what I want is due to the fact that other human beings have made
arrangements whereby I am, whereas others are not, prevented from having enough money with which to pay for it,
that I think myself a victim of coercion or slavery. In other words, this use of the term depends on a particular social
and economic theory about the causes of my poverty or weakness. If my lack of means is due to my lack of mental
or physical capacity, then I begin to speak of being deprived of freedom (and not simply of poverty) only if I accept
the theory. If, in addition, I believe that I am being kept in want by a definite arrangement which I consider unjust
or unfair, I speak of economic slavery or oppression. 'The nature of things does not madden us, only ill will does',
said Rousseau. The criterion of oppression is the part that I believe to be played by other human beings, directly or
indirectly, in frustrating my wishes. By being free in this sense I mean not being interfered with by others. The wider
the area of non-interference the wider my freedom.
53. In fact, personal liberty is interlinked with the right to life itself. It is an inseparable part without which the right
to life itself is deprived of its content and meaning. The right to life and personal liberty is essentially also based on
the principle that men in regard to fundamental rights be treated equal and that no man or a group of men, even
organized as a state under which he lives can deprive him except without infringing the right to be treated equally
unless there is a legitimate sanction of law. Personal liberty of its members must continue to remain the most
cherished goal of any civilized state and its interference with the same must be confined to those cases where it is
sanctioned by the law and genuinely needed. The court would lean in favour of upholding this precious, inalienable
and immutable value.
54. We have noticed that in the United States ordinarily, house arrest follows a conviction and is a choice which is
available to the Courts to send a person to house arrest which is in lieu of a jail sentence.
55. We will use this opportunity to echo the argument of Sh. Kapil Sibal, learned Senior Counsel for the Appellant
that no Court even if it is the High Court has any inherent power to deprive any person of his personal liberty by
placing him under house arrest. Placing a person in custody depriving him of his rights which would include his
fundamental rights as he would stand deprived of on giving effect to the term of house arrest, would amount to a
completely illegal exercise, were it not for the fact that the High Court must be treated as having exercised powers
available to a Judge Under Section 167 of the Code of Criminal Procedure. Thus, runs the argument.
THE REMEDIES OPEN TO AN Accused IN THE CASE OF REMAND UNDER SECTION 167 OF THE
CODE OF CRIMINAL PROCEDURE
56. In State rep. by Inspector of Police and Ors. v. N.M.T. Joy Immaculate MANU/SC/0448/2004 : (2004) 5 SCC
729, a bench of 3 learned judges considered the question of maintainability of a revision Under Section 397 of the
Code of Criminal Procedure against an order of remand. We notice para 13 which reads as follows:
(13) Section 167 Code of Criminal Procedure empowers a Judicial Magistrate to authorise the detention of an
Accused in the custody of police. Section 209 Code of Criminal Procedure confers power upon a Magistrate to
remand an Accused to custody until the case has been committed to the Court of Session and also until the
conclusion of the trial. Section 309 Code of Criminal Procedure confers power upon a court to remand an Accused
to custody after taking cognisance of an offence or during commencement of trial when it finds it necessary to
adjourn the enquiry or trial. The order of remand has no bearing on the proceedings of the trial itself nor can it have
any effect on the ultimate decision of the case. If an order of remand is found to be illegal, it cannot result in
acquittal of the Accused or in termination of proceedings. A remand order cannot affect the progress of the trial or
its decision in any manner. Therefore, applying the test laid down in Madhu Limaye case [MANU/SC/0103/1977 :
(1977) 4 SCC 551 : 1978 SCC (Cri) 10 : AIR 1978 SC 47] it cannot be categorised even as an "intermediate order".
The order is, therefore, a pure and simple interlocutory order and in view of the bar created by Sub-section (2) of
Section 397 Code of Criminal Procedure, a revision against the said order is not maintainable. The High Court,
therefore, erred in entertaining the revision against the order dated 6-11-2001 of the Metropolitan Magistrate
granting police custody of the Accused Joy Immaculate for one day.

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57. Thus, an order Under Section 167 is purely an interlocutory order. No revision is maintainable. A petition Under
Section 482 cannot be ruled out. Now at this juncture we must notice the following dimension. When a person
arrested in a non-bailable offence is in custody, subject to the restrictions, contained therein, a court other than High
Court or Court of Session, before whom he is brought inter alia, can release him on bail Under Section 437 of the
Code of Criminal Procedure Section 439 of the Code of Criminal Procedure deals with special powers of High
Court and court of session to grant bail to a person in custody. The said courts may also set aside or modify any
condition in an order by a Magistrate.
58. In Central Bureau of Investigation, Special Investigation Cell v. Anupam J. Kulkarni MANU/SC/0335/1992 :
(1992) 3 SCC 141, we may notice the following statement:
Now coming to the object and scope of Section 167 it is well-settled that it is supplementary to Section 57. It is clear
from Section 57 that the investigation should be completed in the first instance within 24 hours; if not the arrested
person should be brought by the police before a Magistrate as provided Under Section 167. The law does not
authorise a police officer to detain an arrested person for more than 24 hours exclusive of the time necessary for the
journey from the place of arrest to the Magistrate court. Sub-section (1) of Section 167 covers all this procedure and
also lays down that the police officer while forwarding the Accused to the nearest Magistrate should also transmit a
copy of the entries in the diary relating to the case. The entries in the diary are meant to afford to the Magistrate the
necessary information upon which he can take the decision whether the Accused should be detained in the custody
further or not. It may be noted even at this stage the Magistrate can release him on bail if an application is made and
if he is satisfied that there are no grounds to remand him to custody but if he is satisfied that further remand is
necessary then he should act as provided Under Section 167.
59. Thus, ordinarily, when the court considers a request for remand there would be an application for bail. It is for
the court to grant bail failing which an order of remand would follow.
60. No doubt, while the remand report is considered by the Magistrate the application for bail may be moved Under
Section 439 instead of moving Under Section 437 in view of the restrictions contained therein. Though an
application Under Section 397 would not lie against the remand, as already noticed, an application for bail would lie
Under Section 439. Therefore, ordinarily the Accused would seek bail and legality and the need for remand would
also be considered by the High Court or court of session in an application Under Section 439. No doubt the
additional restrictions Under Section 43(D)(5) of UAPA are applicable to citizens of India in cases under the said
law.
WHETHER A WRIT OF HABEAS CORPUS LIES AGAINST AN ORDER OF REMAND UNDER

SECTION (167) OF CODE OF CRIMINAL PROCEDURE
61. A Habeas Corpus petition is one seeking redress in the case of illegal detention. It is intended to be a most
expeditious remedy as liberty is at stake. Whether a Habeas Corpus petition lies when a person is remanded to
judicial custody or police custody is not res integra. We may notice only two judgments of this Court. In Manubhai
Ratilal Patel v. State of Gujarat and Ors. MANU/SC/0800/2012 : (2013) 1 SCC 314. We may notice paragraph 24.
(24) The act of directing remand of an Accused is fundamentally a judicial function. The Magistrate does not act in
executive capacity while ordering the detention of an Accused. While exercising this judicial act, it is obligatory on
the part of the Magistrate to satisfy himself whether the materials placed before him justify such a remand or, to put
it differently, whether there exist reasonable grounds to commit the Accused to custody and extend his remand. The
purpose of remand as postulated Under Section 167 is that investigation cannot be completed within 24 hours. It
enables the Magistrate to see that the remand is really necessary. This requires the investigating agency to send the
case diary along with the remand report so that the Magistrate can appreciate the factual scenario and apply his mind
whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand
at all. It is obligatory on the part of the Magistrate to apply his mind and not to pass an order of remand
automatically or in a mechanical manner.
However, the Court also held as follows:
31. It is well-accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to
judicial custody or police custody by the competent court by an order which prima facie does not appear to be
without jurisdiction or passed in an absolutely mechanical manner or wholly illegal. As has been stated in B.
Ramachandra Rao [MANU/SC/0085/1971 : (1972) 3 SCC 256 : 1972 SCC (Cri) 481 : AIR 1971 SC 2197] and Kanu

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Sanyal [MANU/SC/0154/1974 : (1974) 4 SCC 141 : 1974 SCC (Cri) 280], the court is required to scrutinise the
legality or otherwise of the order of detention which has been passed. Unless the court is satisfied that a person has
been committed to jail custody by virtue of an order that suffers from the vice of lack of jurisdiction or absolute
illegality, a writ of habeas corpus cannot be granted.
62. One of us (U.U. Lalit, J.) speaking for a Bench of two, followed the aforesaid line of thought in the decision of
Serious Fraud Investigation Office and Ors. v. Rahul Modi and Ors. MANU/SC/0420/2019 : (2019) 5 SCC 266
and held as follows:
(21) The act of directing remand of an Accused is thus held to be a judicial function and the challenge to the order
of remand is not to be entertained in a habeas corpus petition.
We may also notice paragraph 19 from the same judgment.
(19) The law is thus clear that "in habeas corpus proceedings a court is to have regard to the legality or otherwise of
the detention at the time of the return and not with reference to the institution of the proceedings".
63. Thus, we would hold as follows:
If the remand is absolutely illegal or the remand is afflicted with the vice of lack of jurisdiction, a Habeas Corpus
petition would indeed lie. Equally, if an order of remand is passed in an absolutely mechanical manner, the person
affected can seek the remedy of Habeas Corpus. Barring such situations, a Habeas Corpus petition will not lie.
WHETHER SUPERIOR COURTS (INCLUDING A HIGH COURT) CAN EXERCISE POWER UNDER
SECTION (167) OF CODE OF CRIMINAL PROCEDURE? CAN BROKEN PERIODS OF CUSTODY
COUNT FOR THE PURPOSE OF DEFAULT BAIL?
64. One of the contentions raised is that the order passed by the High Court of Delhi, is not one passed Under
Section 167 of the Code of Criminal Procedure, for the reason that what the Code of Criminal Procedure
contemplates is an order passed by a Magistrate. It, therefore, becomes necessary to consider whether a Court other
than a Magistrate can order remand Under Section 167. In the first place, going by the words used in Section 167,
what is contemplated is that Magistrate orders remand Under Section 167(2).
65. Let us, however, delve a little more into the issue. Let us take a case where a Magistrate orders a remand Under
Section 167 and at the same time, he also rejects the application for bail preferred by the Accused. The Accused
approaches the High Court Under Section 439 of the Code of Criminal Procedure. The court reverses the order and
grants him bail. The Accused who was sent to custody means police custody or judicial custody is brought out of his
custody and is released on bail pursuing to the order of the High Court. This order is challenged before the Apex
Court. The Apex Court reverses the order granting bail. The original order passed by the Magistrate is revived. It is
apparent that the Accused goes back to custody. Since assuming that the period of 15 days is over and police
custody is not permissible, he is sent back to judicial custody. Equally if he was already in judicial custody, the order
granting judicial custody is revived. Let us assume in the illustration that the Accused was in custody only for a
period of 10 days and after the order passed by this Court and the Accused who spent another 80 days, he
completes, in other words, a total period of custody of 90 days adding the period of custody, he suffered consequent
upon the remand by the Magistrate. That is by piecing up these broken periods of custody, the statutory period of
90 days entitling the Accused to default bail, is reached. Can it be said that the order of this Court granting custody
should not be taken into consideration for calculating the period of 90 days, upon completion of which the Accused
can set up a case for default bail. We would think that the mere fact is that it is the Apex Court which exercised the
power to remand, which was wrongly appreciated by the High Court in the illustration, would not detract from the
custody being authorized Under Section 167.
66. Let us take another example. After ordering remand, initially for a period of 15 days of which 10 days is by way
of police custody and 5 days by way of judicial custody, the Magistrate enlarges an Accused on bail. The High Court
interferes with the order granting bail on the basis that the bail ought not to have been granted. Resultantly, the
person who on the basis of the order of bail, has come out of jail custody, is put back into the judicial custody or jail
custody. The order is one passed by the High Court. The order granting custody by the High Court cannot be
treated as one which is not anchored in Section 167 of the Code of Criminal Procedure. Therefore, we would think
that though the power is vested with the Magistrate to order remand by way, of appropriate jurisdiction exercised by

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the superior Courts, (it would, in fact, include the Court of Sessions acting Under Section 439) the power Under
Section 167 could also be exercised by Courts which are superior to the Magistrate.
67. Therefore, while ordinarily, the Magistrate is the original Court which would exercise power to remand Under
Section 167, the exercise of power by the superior Courts which would result in custody being ordered ordinarily
(police or judicial custody) by the superior Courts which includes the High Court, would indeed be the custody for
the purpose of calculating the period within which the charge sheet must be filed, failing with the Accused acquires
the statutory right to default bail. We have also noticed the observations of this Court in MANU/SC/0102/1962 :
AIR 1962 SC 1506 (supra). In such circumstances broken periods of custody can be counted whether custody is
suffered by the order of the Magistrate or superior courts, if investigation remains incomplete after the custody,
whether continuous or broken periods pieced together reaches the requisite period; default bail becomes the right of
the detained person.
68. Equally when an order in bail application is put in issue, orders passed resulting in detaining the Accused would
if passed by a superior court be Under Section 167.
THE EFFECT OF TRANSIT ORDER? IS IT A PRODUCTION ORDER THOUGH SOURCED UNDER

SECTION 167 CODE OF CRIMINAL PROCEDURE?
69. The Respondent contends that the transit remand order is not a remand for detention Under Section 167 of the
Code of Criminal Procedure but only one for production. Reliance is placed on Section 57. It is in other words,
pointed out that Section 57 contemplates that in the absence of 'special order' Under Section 167, a person arrested
without warrant must be produced within 24 hours excluding the time taken for journey from the place of arrest to
the place where the Magistrate is located. Therefore, if a 'special order' Under Section 167 is obtained, it is for the
purpose of extending the time in Section 57 for production of the arrestee.
70. Per contra, Appellant contends that Section 167 specially covers cases where a judicial Magistrate who has no
jurisdiction to try a case, can order a remand. There is no other provision for ordering transit remand.
71. In this case the transit remand was ordered on 28.08.2018. The Appellant was to be produced under the same on
30.08.2018 before the Magistrate in Pune. A person may be arrested by a police officer in any part of India (Section
48 of Code of Criminal Procedure). Under Section 56 the person arrested without warrant is to be sent before the
Magistrate having jurisdiction or before the officer in charge of a police station. It is thereafter, that Section 57
forbids the person so arrested:
i. from being detained for a period more than what is reasonable.
ii. from being detained beyond 24 hours from the time of arrest, excluding the time necessary for the journey from
the place of arrest to the Magistrate Court.
72. Now, the 'Magistrate Court' referred to in Section 57 is the Magistrate competent to try the case. Section 57
contains the peremptory limit of 24 hours exclusive of the period for journey, in the absence of 'special order' Under
Section 167.
73. The words 'special order' is not found in Section 167 of the Code of Criminal Procedure. Therefore, could it not
be said that but for Section 57 permitting the Magistrate to allowing time by passing an order Under Section 167,
detention in violation of Section 57 would be rendered illegal? What is the nature of the custody on the basis of the
special order Under Section 167 referred to in Section 57? Is it police custody or is it judicial custody? Is it any other
custody? Will the period of remand for statutory bail begin from the date of this 'special order'? Will it begin only
when the competent Magistrate orders remand?
74. Now as far as this case is concerned, we notice findings of the High Court of Delhi as follows: (para 11 and para
15)
(11) Mr. Navare next tried to draw a distinction between the scope of the function of a Magistrate before whom an
application for transit remand is moved and the jurisdictional Magistrate who should be approached for an order of
remand in terms of Section 56 of the Code of Criminal Procedure. According to Mr. Navare, at the stage of transit
remand the concerned Magistrate would not be required to satisfy himself anything more than whether an offence is
made out and whether the Police Officer seeking the remand is in fact the one authorized to do so.
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(15) Therefore, when a person who after arrest is required to be produced before a jurisdiction Judicial Magistrate is
detained in a place which is away from that jurisdiction, and therefore cannot be produced before the jurisdictional
Magistrate within 24 hours, as mandated both by Article 22(2) of the Constitution and by Section 57 Code of
Criminal Procedure, he will be produced before the 'nearest Judicial Magistrate' together with 'a copy of the entries
in the diary'. Therefore, even before a Magistrate before whom a transit remand application is filed, the mandatory
requirement of Section 167(1) Code of Criminal Procedure is that a copy of the entries in the case diary should also
be produced. It is on that basis that Under Section 167(2) such 'nearest Judicial Magistrate' will pass an order
authorising the detention of the person arrested for a term not exceeding 15 days in the whole. Where he has no
jurisdiction to try the case and he finds further detention unnecessary, he may order the Accused to be forwarded to
the jurisdictional Magistrate.
75. In fact, as already noticed the submission of the State of Maharashtra was also that once a person was in judicial
custody a writ of habeas corpus would not lie which also was rejected.
76. Now, the question may persist as to whether the remand pursuant to a transit remand is to police custody or
judicial custody. It cannot be judicial custody as the police is exclusively entrusted with the man no doubt to
produce him before the Magistrate having jurisdiction. It is therefore, police custody. Could the police be engaged in
questioning/investigating the case by interrogating the Accused on the basis of the transit order either before,
embarking on the journey or during the course of the journey and after the journey before producing him? If it is
thought that during the journey it is impermissible, then such interrogation would equally be impermissible during
the time of journey permitted without obtaining an order Under Section 167. If also during such journey the
Accused volunteers with a statement otherwise falling Under Section 27 of Evidence Act, it would be one when the
Accused is in the custody of the police. If it is police custody then, the order of the Magistrate granting transit
remand would set the clock ticking in terms of MANU/SC/0165/1986 : (1986) 3 SCC 141 to complete the period
for the purpose of default bail.
77. We may also notice that the interplay of Section 57 and 167 was considered in the judgment of this Court in
Chaganti Satyanarayana (supra). It was held as follows:
(12) On a reading of the Sub-sections (1) and (2) it may be seen that Sub-section (1) is a mandatory provision
governing what a police officer should do when a person is arrested and detained in custody and it appears that the
investigation cannot be completed within the period of 24 hours fixed by Section 57. Sub-section (2) on the other
hand pertains to the powers of remand available to a Magistrate and the manner in which such powers should be
exercised. The terms of Sub-section (1) of Section 167 have to be read in conjunction with Section 57. Section 57
interdicts a police officer from keeping in custody a person without warrant for a longer period than 24 hours
without production before a Magistrate, subject to the exception that the time taken for performing the journey
from the place of arrest to the magistrate's court can be excluded from the prescribed period of 24 hours. Since Sub-
section (1) provides that if the investigation cannot be completed within the period of 24 hours fixed by Section 57
the Accused has to be forwarded to the magistrate along with the entries in the diary, it follows that a police officer
is entitled to keep an arrested person in custody for a maximum period of 24 hours for purposes of investigation.
The resultant position is that the initial period of custody of an arrested person till he is produced before a
Magistrate is neither referable to nor in pursuance of an order of remand passed by a magistrate. In fact the powers
of remand given to a magistrate become exercisable only after an Accused is produced before him in terms of Sub-
section (1) of Section 167.
(13) Keeping proviso (a) out of mind for some time let us look at the wording of Sub-section (2) of Section 167.
This Sub-section empowers the magistrate before whom an Accused is produced for purpose of remand, whether
he has jurisdiction or not to try the case, to order the detention of the Accused, either in police custody or in judicial
custody, for a term not exceeding 15 days in the whole.
78. We would hold that the remand order be it a transit remand order is one which is passed Under Section 167 of
the Code of Criminal Procedure and though it may be for the production of the Appellant, it involved authorising
continued detention within the meaning of Section 167.
THE IMPACT OF SECTION 428 OF CODE OF CRIMINAL PROCEDURE
79. Section 428 of the Code of Criminal Procedure reads as follows:

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(428) Period of detention undergone by the Accused to be set-off against the sentence of imprisonment.--Where an
Accused person has, on conviction, been sentenced to imprisonment for a term [, not being imprisonment in default
of payment of fine,] the period of detention, if any, undergone by him during the investigation, inquiry or trial of the
same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him
on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted
to the remainder, if any, of the term of imprisonment imposed on him:
[Provided that in cases referred to in Section 433-A, such period of detention shall be set off against the period of
fourteen years referred to in that section.]
80. If house arrest as ordered in this case is to be treated as custody within the meaning of Section 167 of the Code
of Criminal Procedure would it not entail the period of house arrest being treated as part of the detention within the
meaning of Section 428 in case there is a conviction followed by a sentence?
81. Do the provisions of Section 428 throw light on the issues which we are called upon to decide?
82. Section 428 enables a person convicted to have the period of detention which he has undergone during the
investigation, enquiry or trial set off against the term of imprisonment.
83. In this context, we may notice the judgment of this Court reported in Govt. of Andhra Pradesh and Anr. etc. v.
Anne Venkateswara Rao etc. etc. MANU/SC/0088/1977 : AIR 1977 SC 1096. In the said case the Appellant in one
of the appeals had been detained under the Preventive Detention Act on 18.12.1969. He was produced before the
Magistrate sometime in April, 1970 in connection with certain offences after he had been released from preventive
detention. He was later convicted. This Court while dealing with the contention that the benefit of provisions of
Section 428 must ennure to the Appellant held:
The argument is that the expression period of detention in Section 428 includes detention under the Preventive
Detention Act or the Maintenance of Internal Security Act. It is true that the Section speaks of the 'period of
detention' undergone by an Accused person, but it expressly says that the detention mentioned refers to the
detention during the investigation, enquiry or trial of the case in which the Accused person has been convicted. The
Section makes it clear that the period of detention which it allows to be set off against the term of imprisonment
imposed on the Accused on conviction must be during the investigation, enquiry or trial in connection with the
'same case' in which he has been convicted. We therefore agree with the High Court that the period during which
the writ Petitioners were in preventive detention cannot be set off Under Section 428 against the term of
imprisonment imposed on them.
84. We may also notice that in Ajmer Singh and Ors. v. Union of India and Ors. MANU/SC/0182/1987 : AIR 1987
SC 1646 dealing with the question as to whether the benefit of Section 428 of the Code of Criminal Procedure was
available to a person convicted and sentenced by court martial under the Army Act inter alia, this Court took the
view that the benefit is not available.
The Court held:
(12) The Section provides for set-off of the period of detention undergone by an Accused person during the
'investigation, inquiry or trial' of the same case before the date of conviction. The expression 'investigation' has been
defined in Section 2(h) of the Code as follows:
'2(h) 'investigation' includes all the proceedings under this Code for the collection of evidence conducted by a police
officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf'. In the case of
persons tried by Courts-Martial there is no investigation conducted by any police officer under the Code or by any
person authorised by Magistrate in that behalf.
85. There is a scheme which is unravelled by the Code regarding detention of an Accused. The starting point
appears to be the arrest and detention of the person in connection with the cognizable offence by a police officer
without a warrant. He can detain him and question him in the course of the investigation. However, the officer
cannot detain the Accused beyond 24 hours excluding the time taken for the journey from the place of arrest to the
place where the Magistrate who is competent to try the case sits. If he cannot so produce the Accused and the
investigation is incomplete, the officer is duty bound to produce the arrested person before the nearest Magistrate.
The nearest Magistrate may or may not have jurisdiction. He may order the continued detention of the arrested

Page 386
person based on the request for remand. He would largely rely on the entries in the case diary and on being satisfied
of the need for such remand which must be manifested by reasons. The Magistrate can order police custody during
the first 15 days (in cases under UAPA, the first 30 days). Beyond such period, the Magistrate may direct detention
which is described as judicial custody or such other custody as he may think fit. It is, no doubt, open to a Magistrate
to refuse police custody completely during the first 15 days. He may give police custody during the first 15 days not
in one go but in instalments. It is also open to the Magistrate to release the arrested person on bail.
86. The arrested person if detained during the period of investigation can count this period, if he is ultimately
charged, tried and convicted by virtue of the provisions of Section 428 of Code of Criminal Procedure. We are not
concerned with custody of the Accused during the period of an inquiry or trial which is a matter governed essentially
by Section 309 of the Code of Criminal Procedure. In this context, it must be remembered that it is not every
detention which can be relied upon to get the benefit of set-off Under Section 428. A period spent under an order
of preventive detention being not in connection with the investigation into an offence cannot be counted. (See
MANU/SC/0088/1977 : AIR 1977 SC 1096)
87. Detention pursuant to proceedings under the Army Act inter alia does not count. (See MANU/SC/0182/1987 :
AIR 1987 SC 1646)
88. Thus, detention 'during investigation' Under Section 428 is integrally connected with detention as ordered Under
Section 167.
89. The scheme further Under Section 167 is that custody (detention/custody) as authorized under such provisions,
if it exceeds the limit as to maximum period without the charge sheet being filed, entitles the person in detention to
be released on default bail. In fact, the person may on account of his inability to offer the bail languish in custody
but he would undoubtedly be entitled to count the entire period he has spent in detention Under Orders of the
Magistrate/Superior Court exercising powers Under Section 167 for the purpose of set off Under Section 428.
EFFECT OF ILLEGALITY IN THE ORDER UNDER SECTION 167 CODE OF CRIMINAL PROCEDURE
90. Now, it is necessary to make one aspect clear. An order purports to remand a person Under Section 167. It is
made without complying with mandatory requirements thereunder. It results in actual custody. The period of
custody will count towards default bail. Section 167(3) mandates reasons be recorded if police custody is ordered.
There has to be application of mind. If there is complete non-application of mind or reasons are not recorded, while
it may render the exercise illegal and liable to be interfered with, the actual detention undergone under the order, will
certainly count towards default bail. Likewise, unlike the previous Code (1898), the present Code mandates the
production of the Accused before the Magistrate as provided in Clause (b) of the proviso to Section 167(2). Custody
ordered without complying with the said provision, may be illegal. But actual custody undergone will again count
towards default bail.
91. Take another example. The Magistrate gives police custody for 15 days but after the first 15 days, (Not in a case
covered by UAPA). It is not challenged. Actual custody is undergone. Will it not count? Undoubtedly, it will. The
power was illegally exercised but is nonetheless purportedly Under Section 167. What matters is 'detention' suffered.
The view taken in the impugned judgment that sans any valid authorisation/order of the Magistrate detaining the
Appellant there cannot be custody for the purpose of Section 167 does not appear to us to be correct. The finding
that if any illegality afflicts the authorisation, it will render the 'detention' not authorised is inconsistent with our
conclusion as aforesaid.
92. Therefore, if the Court purports to invoke and act Under Section 167, the detention will qualify even if there is
illegality in the passing of the order. What matter in such cases is the actual custody.
93. However, when the Court does not purport to act Under Section 167, then the detention involved pursuant to
the order of the Court cannot qualify as detention Under Section 167.
JUDICIAL CUSTODY AND POLICE CUSTODY
94. Now, we must squarely deal with the question as to whether house arrest as ordered by the High Court amounts
to custody within the meaning of Section 167 of the Code of Criminal Procedure. Undoubtedly custody in the said
provision is understood as ordinarily meaning police custody and judicial custody. The period of custody begins not
from the time of arrest but from time the Accused is first remanded (MANU/SC/0165/1986 : 1986 (3) SCC 141).

Page 387
Police custody can, in a case falling under the Code of Criminal Procedure (not under the UAPA), be given only
during the first 15 days (MANU/SC/0335/1992 : (1992) 3 SCC 141). During the first 15 days no doubt the Court
may order judicial custody or police custody. No doubt the last proviso to Section 167(2) provides that detention of
a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or
recognised social institution.
95. What is the distinction between police custody and judicial custody? When a person is remanded to police
custody, he passes into the exclusive custody of the police officers. 'Custodial Interrogation' as is indispensable to
unearth the truth in a given case is the substantial premise for such custody. The Magistrate must undoubtedly be
convinced about the need for remand to such custody. Reasons must be recorded. Judicial custody is ordinarily
custody in a jail. It is referred to also as jail custody. Thus, jail custody and judicial custody are the same. The jails
come under the Department of Jails and staffed by the employees of the said department. The person in jail custody
is therefore indirectly, through the jail authorities, under the custody of the Court. The police officer does not have
access to a person in judicial custody as he would have in the case of a person in police custody. Unless permission
is sought and obtained which would apparently be subject to such conditions as a court places the person in judicial
custody cannot be questioned by the police officers. Now in a case, ordinarily, instead of ordering a remand a
person can be released on bail. As to whether a case is made out is a question to be decided in the facts of each case.
There may be restrictions put in regard to the grant of bail by law which must be observed. But if bail is not granted
then a person arrested by the police in connection with the cognizable offence must be remanded to custody. This is
inevitable from the reading of Section 167 of the Code of Criminal Procedure.
96. In re. M.R. Venkataraman and Ors. MANU/TN/0081/1947 : AIR 1948 Mad 100, a petition was filed seeking a
writ of Habeas Corpus inter alia on the ground that the Petitioners were remanded to a central jail of a district which
was other than the one in which there were being tried. The court inter alia held as follows:
On the first point, it seems to us that no illegality or irregularity was committed. Section (167) empowers a
Magistrate having jurisdiction to remand a prisoner to such custody as he thinks fit. Section 344 does not use the
words "as he thinks fit" with regard to the order of remand; but there is nothing in the Section which suggests that
after a charge-sheet has been filed, the Magistrate has not the same freedom with regard to the custody to which he
commits the Accused as he had before a charge-sheet was filed. The learned Advocate for the Petitioners has
referred to the wording of Section 29 of the Prisoners' Act, as indicating that the only person who can transfer a
prisoner from one Jail to another within the same province is the Inspector-General of Prisons; but by its very
wording Section 29 of the Prisoners' Act does not apply to an under-trial prisoner; nor are we dealing with a transfer
of a prisoner. Whenever an Accused is brought before the Court and the Court issues an order of remand, the
Magistrate has complete freedom, as far as we can see, to remand the Accused to whatever custody he thinks fit.
[Emphasis supplied]
97. The concept of house arrest though familiar in the law relating to preventive detention, therein the
underpinnings are different. House arrest in the law of preventive detention is one which is permitted under the law
itself and such orders are made in fact by the executive. Also, detention Under Section (167) would not embrace
preventive detention in the form of house arrest as noticed by us in the discussion relating to impact of Section 428
of Code of Criminal Procedure.
98. However, taking the ingredients of house arrest as are present in the order passed by the High Court of Delhi in
its order dated 28.08.2018, if it is found to be one passed Under Section 167, then it would be detention thereunder.
The concept of house arrest as ordered in this case with the complete prohibition on stepping out of the Appellants
premises and the injunction against interacting with persons other than ordinary residents, and the standing of guard
not to protect him but to enforce the condition would place the Appellant under judicial custody. Section 167
speaks of 'such custody as it thinks fit'. If it is found ordered Under Section 167 it will count.
99. In the impugned judgment the High Court reasons as follows to deny default bail:
(1) The transit remand order came to be stayed by the Delhi High Court on 28/10/2018.
(2) The Appellant was placed under house arrest pursuant to the directions of the Delhi High court during which
period the investigating officer did not get the opportunity of interrogating him.
(3) The High court of Delhi quashed the Appellant's arrest holding that the Appellant's detention is illegal.

Page 388
(4) Pursuant to the declaration of the detention as illegal, the Appellant was set at liberty. It is not as if the Appellant
was released on bail but after being set at liberty, the Appellant is protected by an order of this Court restraining the
investigating agency from taking coercive steps during the pendency of Appellant's challenge to the FIR.
(5) The Hon'ble Supreme Court having dismissed the challenge of the Appellant to quash FIR granted 4 weeks
protection with liberty to seek pre arrest bail/protection before the Sessions Court. The Hon'ble Supreme Court
granted the Appellant time to surrender after the Appellant failed to serve pre arrest bail. The Appellant ultimately
surrendered to NIA Delhi on 14/04/2020. Only after the Appellant surrendered, the Magistrate authorised the
police custody whereupon the Appellant was interrogated.
It further held:
The CMM granted transit remand on 28.08.2018. The High Court of Delhi by an interim order having stayed the
transit remand and then having finally set aside the order of transit remand thereby holding the detention during the
period 28.08.2018 upto 01.10.2018 (period of house arrest) as illegal, then, in our opinion, in the absence of there
being an authorised detention by an order of Magistrate, the Appellant cannot claim entitlement to statutory default
bail Under Sub-section (2) of Section 167 of Code of Criminal Procedure...
It goes on to hold:
It is not possible for us to fathom a situation where detention of the Appellant though held to be illegal & unlawful
rendering the authorisation by the Magistrate untenable should still be construed as an authorised detention for the
purpose of Sub-section (2) of Section 167 of the Code of Criminal Procedure. In our view sans any valid
authorisation/order of the Magistrate detaining the Appellant, the incumbent will not be entitled to a default bail...
Finally, it holds:
Resultantly, we hold that the period from 28.08.2018 to 01.10.2018 has to be excluded from computing the period
of 90 days as the said custody has been held to be unsustainable in law by the High Court of Delhi.
DOES THE MAGISTRATE/COURT CONSIDER THE LEGALITY OF ARREST/DETENTION WHILE

ACTING UNDER SECTION (167).
100. The High Court of Delhi in its judgment dated 01.10.2018 has found that the order of remand is illegal as there
was violation of Article 22(1). Article 22(1) creates a fundamental right on a person arrested to be not detained
without being informed as soon as may be of the grounds for such arrest. It also declares it a fundamental right for
the detained person to consult and be defended by a legal practitioner of his choice. Now, detention follows arrest.
What Article 22(1) is concerned with is that the detention must be supported by the fulfilment of the rights referred
to therein. Strictly speaking, therefore, Article 22(1) does not go to the legality of the arrest.
101. Now, as far as the non-fulfilment of the conditions Under Article 22(1) and the duty of a Magistrate exercising
power to remand, we notice the judgment of this Court rendered by a Bench of three learned Judges in The matter
of: Madhu Limaye and Ors. MANU/SC/0047/1968 : (1969)1 SCC 292. Therein, the Petitioners were arrested
apparently for offence Under Section 188 of the Indian Penal Code which was non-cognizable. The officer did not
give the arrested persons the reasons for their arrest or information about the offences for which they had been
taken into custody. this was a case where the Magistrate offered to release the Petitioners on bail but on the
Petitioners refusing to furnish bail, the Magistrate remanded them to custody. The proceeding before this Court was
Under Article 32. It was in fact, initiated on a letter complaining that the arrest and detention were illegal. It was
contended that the arrests were illegal as they were arrested for offences which were non-cognizable. In fact, it was
found that the arrest were effected without specific order of Magistrate. It was also contended that Article 22(1) was
violated. What is relevant is the following discussion:
12. Once it is shown that the arrests made by the police officers were illegal, it was necessary for the State to
establish that at the stage of remand the Magistrate directed detention in jail custody after applying his mind to all
relevant matters. This the State has failed to do. The remand orders are patently routine and appear to have been
made mechanically. All that Mr. Chagla has said is that if the arrested persons wanted to challenge their legality the
High Court should have been moved under appropriate provisions of the Code of Criminal Procedure. But it must
be remembered that Madhu Limaye and others have, by moving this Court Under Article 32 of the Constitution,
complained of detention or confinement in jail without compliance with the constitutional and legal provisions. If

Page 389
their detention in custody could not continue after their arrest because of the violation of Article 22(1) of the
Constitution they were entitled to be released forthwith. The orders of remand are not such as would cure the
constitutional infirmities. This disposes of the third contention of Madhu Limaye.
102. We may further notice that in In Arnesh Kumar v. State of Bihar and Anr. MANU/SC/0559/2014 : (2014) 8
SCC 273, this Court taking note of indiscriminate arrests issued certain directions. We may notice:
8.2. Before a Magistrate authorises detention Under Section 167 Code of Criminal Procedure, he has to be first
satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person
arrested are satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of
the Code, Magistrate is duty-bound not to authorise his further detention and release the Accused. In other words,
when an Accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to
the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that the
condition precedent for arrest Under Section 41 Code of Criminal Procedure has been satisfied and it is only
thereafter that he will authorise the detention of an Accused.
8.3. The Magistrate before authorising detention will record his own satisfaction, may be in brief but the said
satisfaction must reflect from his order. It shall never be based upon the ipse dixit of the police officer, for example,
in case the police officer considers the arrest necessary to prevent such person from committing any further offence
or for proper investigation of the case or for preventing an Accused from tampering with evidence or making
inducement, etc. the police officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of
which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the
detention and only after recording his satisfaction in writing that the Magistrate will authorise the detention of the
Accused.
103. In terms of paragraph 8.2, it is clear that if the arrest does not satisfy the requirements of Section 41, the
Magistrate is duty bound not to authorize further detention. The Magistrate is to be satisfied that the condition
precedent for arrest Under Section 41 of the Code of Criminal Procedure has being satisfied. He must also be
satisfied that all the constitutional rights of the person arrested are satisfied. Therefore, it is not as if an arrest
becomes a fait accompli, however, illegal it may be, and the Magistrate mechanically and routinely orders remand.
On the other hand, the Magistrate is to be alive to the need to preserve the liberty of the Accused guaranteed under
law even in the matter of arrest and detention before he orders remand. This is no doubt apart from being satisfied
about the continued need to detain the Accused.
CUSTODY UNDERGONE Under OrderS OF SUPERIOR COURTS IN HABEAS CORPUS PETITIONS. IS

THE CODE OF CRIMINAL PROCEDURE APPLICABLE TO WRIT PETITIONS?
104. We have noticed that there is no absolute taboo against an order of remand being challenged in a habeas
corpus petition. Should the remand be absolutely illegal or be afflicted with vice of lack of jurisdiction such a writ
would lie? If it is established in a case that the order of remand is passed in an absolutely mechanical manner again it
would lie. Now in such cases the person would be in custody pursuant to the remand ordinarily. What would be the
position if the writ court were to modify the order of remand passed by the magistrate. Take a case where police
custody is ordered by the Magistrate. By an interim order of the High court let us take it the High Court provides
for judicial custody. It is done after the Accused undergoes police custody for 5 days. Finally, the writ petition is
however dismissed. What would happen to the period of judicial custody? Will it be excluded from the period
undergone for the purpose of grant of default bail? Another pertinent question which arises is whether Section 167
of the Code of Criminal Procedure is applicable in writ proceedings. If a writ petition is not a criminal proceeding,
Will Section 167 apply or does the provision apply only to the proceedings which arise under the Code? In the
example, we have given if we hold that irrespective of facts which otherwise justified including the period of jail
custody as part of the custody under one Section 167, it will not be reckoned it may produce anomalous and unjust
results. We expatiate as follows:
In the example we have given the High Court does not stay the investigation. The Petitioner who has been in police
custody is made over to judicial custody by the interim order of the High Court. The High Court also applies its
mind and finds that no case is made out at any rate for continuing the writ Petitioner in police custody and then
passes the order to continue the Petitioner in judicial custody. Finally, the writ petition is dismissed. In such a case
where there is no stay of investigation and in fact even the police custody was obtained and thereafter the High
Court after looking into the records also find that the Petitioner should only be continued in the modified form of
remand, the custody, which is undergone under an order of the court being also 'during the investigation' which the
investigation is also not stayed, ought to be counted.

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105. Now though the Code of Criminal Procedure will not apply to a writ petition, what is required to include
custody Under Section 167 is that the detention brought about by the court ordering it during the investigation into
an offence. It is a matter which will turn on the facts.
106. The crucial question to be answered is whether the High Court of Delhi was exercising power Under Section
167 when it ordered house arrest. The proceeding in the High Court was a writ petition. At the time when the writ
petition was filed, the relief sought was that a writ of Habeas Corpus be issued to set him at liberty. The further
relief sought was that the Appellant may not be arrested without prior notice to enable him to seek appropriate
remedies. As far as the prayer that the Appellant may not be arrested is concerned, it is a relief which does not go
hand in hand with Section 167 of the Code of Criminal Procedure. This is for the reason that the power Under
Section 167 is invoked only after there has been an arrest and what is sought is the extension of the detention of the
person arrested.
107. Though, this was the position when the writ petition was filed, by the time, the writ petition came up for
consideration at 2:45 p.m. on 28.08.2018, the Appellant stood arrested at 2:15 p.m. The Court initially at 2:45 p.m.
passed the following order:
4. When the matter was taken up at 2:25 pm yesterday, Mr. Rahul Mehra, learned Standing Counsel (Criminal) for
the State of NCT of Delhi appeared. The Court then passed the following order at around 2:45 pm:
1. The petition complains of the Petitioner and his companion Sehba Husain being restrained in his house by the
Maharashtra Police pursuant to FIR No. 4/2018, registered at P.S. Vishrambagh, Pune.
2. Notice. Mr. Rahul Mehra, who appears and accepts notice and informs that he will take some instructions.
3. The Court is informed by Ms. Nitya Ramakrishnan, learned Counsel appearing for the Petitioner, that her
information is that the Petitioner is just being taken away from his house. No further precipitate action of removing
the Petitioner from Delhi be taken till the matter is taken up again at 4 pm.
[This is taken from order dated 29.08.2018 extracted in the judgment.]
108. It would appear, in the meantime, the Appellant was produced before the Magistrate who passed the transit
remand order. Thereafter when the matter was taken up for consideration at 4:00 p.m. and on noticing the transit
remand, order, dated 28.08.2018, inter alia, ordering house arrest came to be passed. Therefore, at the time (4PM)
when the order was passed, the Court was dealing with the matter when the Appellant stood arrested and also
remanded by way of the transit remand order.
109. One way to look at the matter is to remind ourselves of the contents of the order dated 28.08.2018. In the said
order, we notice the following portion which we recapture at this juncture:
The Court is also shown the documents produced before the learned CMM most of which (including FIR No. 4 of
2018 registered at Police Station, Vishrambagh, Pune) are in Marathi language and only the application filed for
transit remand before the learned CMM is in Hindi. However, it is not possible to make out from these documents
what precisely the case against the Petitioner is.
110. The Court further proceeded to direct that the translations of all the documents be provided to the Court on
the next date (29.8.2018).
111. Now, the direction to supply the translation could not be complied with as is the evident from the order dated
29.08.2018 (See para 6 of the said order) as reproduced in the judgment.
112. Finally, we may notice paragraphs 18 and 19 of the order dated 29.08.2018 reproduced in the judgment:
He is informed that the Supreme Court has in the said petition passed an interim order today staying the transit
remand orders, including the one passed by the CMM in respect of the Petitioner, and has ordered that all those
who have been arrested including the Petitioner shall continue under house arrest.

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In view of the above development, it would not be appropriate for this Court to continue considering the validity of
the transit remand order passed by the learned CMM. The Court considers it appropriate to list this matter
tomorrow at 2:15 pm by which time the order of Supreme Court would be available. List on 30th August 2018 at
2:15pm.
113. On the next day i.e., on 30.08.2018, the Court passed a further order. Therein, in fact the order recites that the
Court was in the process of pronouncement an order on the validity of the transit remand and consequently on the
validity of the arrest of the Appellant. It is further stated that the court was informed by the counsel for the State of
Maharashtra that an interim order continuing the house arrest of the Appellant and some other similarly situated had
been passed. It is specifically recorded that the dictation of the order was then halted in order to peruse the order
passed by the Supreme Court. Thereafter, it is stated that as the Supreme Court as per the interim order extended
the house arrest of the Appellant, the court did not consider it appropriate to proceed with the matter. Orders of the
Supreme Court were awaited.
114. It was further adjourned. Thereafter, this Court pronounced the judgment on 28.09.2018 and finally, the
judgment was pronounced on 01.10.2018 by the High Court. We may also notice: para 5
5. This writ petition was listed for hearing today at 2:15 pm before this Court. It is noted that the Supreme Court in
para 7 of the majority judgment notes that the Petitioner has filed the present petition on 28th August 2018
"challenging the transit remand order passed by the Chief Metropolitan Magistrate (CMM) on 28th August 2018".
At this stage it is required to be noted that although when the writ petition was originally filed the ground of
challenge was that the arrest of the Petitioner was in violation of Section 165 and 166 Code of Criminal Procedure,
during the course of arguments on 28th August 2018 in light of the developments that took place subsequent to the
filing of the petition, challenge was laid to the remand order of the learned CMM. It was further contended that
there had been a violation of the mandatory provision contained in Section 41(1)(ba) Code of Criminal Procedure.
115. The Court went on to find that the writ petition was maintainable as the writ petition was entertained at a time
when the transit remand order had not been passed. The Court finally proceeds to find violations of Articles 22(1)
and 22(2) of the Constitution and Section 167 read with Section 57 and also Section 41(1) (ba) of the Code of
Criminal Procedure. The remand order is set aside. The continued detention beyond 24 hours of the arrest of the
Appellant, in the absence of the remand order which stood set aside, was found untenable. Consequently, the house
arrest of the Appellant was pronounced as having "come to an end as of now".
116. We have already found that the superior Courts including the High Court can exercise power Under Section
167. The finding of the High Court in the impugned judgment appears to proceed on the basis that only a
Magistrate can order remand, does not appear to be correct.
117. Undoubtedly, as pointed out by the Appellant, he came to be detained on the basis of an arrest carried out by
the police officer from the State of Maharashtra in connection with FIR No. 84 of 2018 disclosing the commission
of cognizable offences. The arrest is apparently effected in view of the powers available Under Section 48 of the
Code of Criminal Procedure. Finding that an order Under Section 167 was required to produce the Appellant before
the competent Court in Maharashtra, he produced the Appellant-in-person before the nearest Magistrate in Delhi
and the Magistrate passed an order which we have found to be an order of remand Under Section 167. The High
Court came to be concerned with the validity of the remand order and detention of the Appellant. A writ of habeas
corpus does lie in certain exceptional cases even by way of challenging the orders of remand. If there is non-
compliance with Article 22(1) and the person is detained it is an aspect which has to be borne in mind by the
Magistrate when ordering remand. Detention is the result of an arrest. Article 22(1) applies at this stage after arrest.
If fundamental rights are violated in the matter of continued detention, the Magistrate is not expected to be
oblivious to it. It is in this sense that the High Court has found violation of Article 22(1) inter alia and the Magistrate
over-looking it as rendering the transit remand illegal. As far as the arrest being made in violation of Section
41(1)(ba), undoubtedly, it is a matter which related to the legality of the arrest itself which is the stage prior to
detention. The High Court finds that the Magistrate had not applied his mind to the question as to whether the
arrest was in compliance with Section 41(1) (ba) of Code of Criminal Procedure.
118. This is unlike the decision in Madhu Limaye (supra) where this Court found that there was a violation of Article
22(1) and even during the course of arguments before this Court, it could not be explained to the court as to why
the arrested persons were not told of the reasons for their arrest or of the offences for which they had been taken
into custody. In the said case in fact one of the specific issues was about the legality of the arrest both on the ground
that the offences being non cognizable arrest which was illegally effected by the police officer and also there was
violation of Article 22(1).

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THE IMPACT OF THE NON-ACCESSIBILITY TO THE Appellant FOR THE INVESTIGATING AGENCY
DURING HOUSE ARREST AND THE EFFECT OF THE APPELLANT BEING IN POLICE CUSTODY
FROM 14.4.2020 TO 25.4.2020.
119. This is the most serious contention raised by the Respondent to exclude the period of house arrest. The
contention is that having regard to the nature of the proceedings in the High Court of Delhi during the period of
house arrest, no investigation could be carried out. The very purpose of custody Under Section 167 is to enable the
police to interrogate the Accused and if that opportunity is not present then such period of custody as alleged would
not qualify for the purpose of Section 167. In other words, the argument appears to be that the object and scheme
of Section 167 is that an investigation is carried out with opportunity to question the Accused and still it is not
completed within the period of 90 days whereupon right to default bail arises. By the proceedings on 28.08.2018
when the petition was filed, the High Court stayed the transit remand and the Appellant could not be taken to
Maharashtra. By the very same order, the High Court placed the Appellant under house arrest. No access was
provided to the investigating agencies to question the Appellant. In such circumstances, the period undergone as
house arrest should be excluded. It is appropriate that the allied argument, namely, the effect of the Appellant
surrendering on 14.04.2020, being produced on 15.04.2020 and being remanded to police custody in which he
remained till 25.04.2020, is considered. The argument is that under the general law, namely, the Code of Criminal
Procedure without the modification effected Under Section 43(D) of UAPA, police custody can be sought and
given only during the first 15 days, thereafter, police custody cannot be given. In the case of UAPA, in view of the
modified application of the Code of Criminal Procedure Under Section 43(D) (2), the period of 15 days stands
enhanced to 30 days. Thus, police custody by the Magistrate can be given on production for a period of 30 days.
The argument further runs that if it is on the basis of the Appellant having surrendered on 14.04.2020 and upon
being produced before the Court, he stood remanded to police custody, the period of 90 days would begin to run
only from the date of the remand i.e. 15.04.2020. If the contention of the Appellant is that the period of remand
commenced with the house arrest i.e., 28.08.2018, is accepted, it would result in the police custody given on
15.04.2020 as impermissible. In this regard, the fact that the Appellant did not object to the police custody being
given on 15.04.2020 is emphasized. The Appellant acquiesced in the police custody commencing from 15.04.2020.
This is possible only on the basis that the period of 90 days would commence only on 15.04.2020 in terms of the
law laid down in Chaganti Satyanarayana (supra).
120. Per contra, the case of the Appellant is as follows:
There is no requirement in law that the person should be granted police custody in all cases. Section 167 of Code of
Criminal Procedure confers a power with the Magistrate to grant either police or other custody (judicial custody)
during the first 15 days in a case not covered by UAPA. After the first period of 15 days, undoubtedly, custody
cannot be police custody but there is no requirement that any police custody at all should be given. It is entirely with
the Magistrate/Court to determine as to whether the custody should be police or judicial. Furthermore, it is
contended that in this case, the offences under UAPA are the main offences. A period of 30 days is available by way
of police custody. It is open to the investigator to seek police custody at any time.
It is contended that in any event, a reading of the second proviso Under Section 43(D)(2)(b) of the UAPA shows
that in cases under the said act for the purpose of investigation, police custody can be sought any time and is not
limited by 30 days/15 days period. It is submitted that the principle in Central Bureau of Investigation, Special
Investigation Cell (supra) that police custody is limited to the first 15 days of remand, does not apply. It is further
contended that there was no stay of investigation and police could have sought access to the Appellant during the 30
days period of interrogation or investigation but this was not done. It is also seen contended in the written
submissions that the second proviso to Section 43(2)(D) of UAPA nullifies the judgment in Anupam Kulkarni
(supra) in UAPA cases and custody can, therefore, be sought at any time even from judicial custody without the
limit of first 15 days or even 30 days. The requirement of an affidavit in terms of the proviso arises only when
custody is taken by the police from judicial custody. It was open to the investigating agency to file such an affidavit
and seek such custody or even the permission to interrogate during the period of house arrest which was not done.
It is seen further contended that on 14.04.2020, the Appellant surrendered before the NIA i.e. police custody.
Therefore, when the police custody was sought on 15.04.2020 and extended again on 21.04.2020, there is no
transfer from judicial custody to police custody. Therefore, it is contended that the police custody was not under the
second proviso to Section 43(D)(2)(b). This explains why no affidavit as required thereunder was filed by the police.
The conduct of the Appellant in not objecting to the application seeking police custody cannot defeat the case for
counting the period of 34 days of house arrest. The Appellant was indeed in police custody on 28.08.2018 for the
purpose of investigation. All his devices were seized by the investigating agency who had spent several hours at his
house and restrained him from morning till 2:15 P.M. when they proceeded with him to the Magistrate.

Page 393
121. The scheme of the law (Code of Criminal Procedure) is that when a person is arrested without warrant in
connection with a cognizable offence, investigation is expected to be completed within 24 hours from his arrest. If
the investigation is not completed, as is ordinarily the case, the Accused must be produced before the Magistrate
who is nearest from the place of arrest irrespective of whether he is having jurisdiction or not. The Magistrate on
the basis of the entries in the case diary maintained by the officer is expected to apply his mind and decide whether
the Accused is to be remanded or not. If the police makes a request for police custody which is accepted then an
order is to be passed and reasons are to be recorded Under Section 167(3). Police custody is an important tool in
appropriate cases to carry on an effective investigation. It has several uses. It includes questioning the Accused with
reference to the circumstances, and obtaining if possible, statements which are relevant in the future prosecution.
Custodial interrogation in some cases is clearly a dire need to give a prosecution and therefore the courts a complete
picture. The contention of the Appellant that it is always open to Magistrate to order only judicial custody and even
exclusively with 90 days of judicial custody alone, an application for default bail would lie cannot be disputed.
Whatever be the nature of the custody as long as it falls within four walls of Section 167, if the requisite number of
days are spent in police/judicial custody/police and judicial custody that suffices.
122. However, that may not mean applying the functional test or bearing in mind the object of the law that the
purpose of obtaining police custody is lost sight of. According to the Appellant, the period of house arrest is to be
treated as judicial custody on the terms of the order dated 28.08.2018 as subsequently extended. Investigating
officers, undoubtedly, could go to the house of the Appellant and question him. It is, however, true that if the High
Court had been approached, it may have directed the Appellant to cooperate with the officers in the investigation. It
however remains in the region of conjecture. The impact of this aspect, will be further considered later.
123. We must, in this regard, also consider the impact of the police custody, admittedly, obtained on 15.04.2020.
The order which is produced before us would show that police custody was sought for 10 days. Custodial
interrogation was necessary, it is seen pleaded, for analysing the retrieved electronic data/documents from the
electronic devices recovered during the investigation.
124. The special Judge ordered remand for 7 days. Thereafter, a period of 7 days further remand to police custody
was granted by the order dated 21.04.2020. Still further, it appears on 25.04.2020, the Appellant was remanded in
judicial custody in which he continued. The question would arise that all else being answered in favour of the
Appellant whether his case is inconsistent with the police remand initially granted for 7 days on 15.04.2020 and
further extended on 21.04.2020 which was, no doubt, cut short on 25.04.2020. The point to be noted is police
custody can be given only for 15 days and that too, the first 15 days, ordinarily. In the case of persons Accused of
offences, under UAPA, the maximum period of police custody is 30 days. If the case of the Appellant is to be
accepted then it must be consistent with the subsequent proceedings, namely, police custody vide orders dated
15.04.2020 and 21.04.2020. In other words, Section 167 of the Code of Criminal Procedure as modified by Section
43(D)(2) of UAPA, contemplates that remand to police custody on production of the Accused can be given only
during the first 30 days from the date of production and it advances the case of the Respondent that remand on
production of the Accused before the Special Judge took place only with the production of the Accused on
15.04.2020. If the remand in the case of the Appellant took place in the year 2018 then it would be completely
inconsistent with the remand to police custody well beyond the first 30 days of the remand in the year 2018.
125. The answer of the Appellant is that apart from the period of 15 days being supplanted by 30 days under UAPA,
police custody can be sought and granted at any time in cases involving UAPA. It appears to be the Appellants case
in one breath that this is possible under the second proviso contemplated in Section 43(2)(b) of UAPA. It is seen
contended, that unlike the cases generally covered by the Code of Criminal Procedure, police custody can be sought
in cases under UAPA at any time. It is also contended however that, it is only if a person is in judicial custody and
the investigator wants to get police custody in place of judicial custody that an affidavit is required. In this case, it is
the case of the Appellant that there is no such affidavit. This is for the reason that when police custody was sought
on 15.04.2020, the Appellant was not in judicial custody. He had surrendered on the previous day i.e. on 14.04.2020
before the NIA. It is, therefore, to resolve this controversy necessary to find out whether the case of the Appellant
that the police custody can be sought at any time in cases falling under UAPA is tenable.
126. Section 43D(2) of UAPA reads as follows:
(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to
the modification that in Sub-section (2), -
(a) the references to "fifteen days", "ninety days" and "sixty days", wherever they occur, shall be construed as
references to "thirty days", "ninety days" and "ninety days" respectively; and

Page 394
(b) after the proviso, the following provisos shall be inserted, namely:
Provided further that if it is not possible to complete the investigation within the said period of ninety days, the
Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and
the specific reasons for the detention of the Accused beyond the said period of ninety days, extend the said period
up to one hundred and eighty days:
Provided also that if the police officer making the investigation under this Act, requests, for the purposes of
investigation, for police custody from judicial custody of any person in judicial custody, he shall file an affidavit
stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody.
127. Under Section 43(D)(2)(a), it is clear that the maximum period of police custody which is permissible has been
increased from 15 days to 30 days. The further modification is that which is relevant which is incorporated in the
second proviso. It contemplates that the investigating officer can seek with reasons and explaining the delay obtain
the police custody of a person who is in judicial custody.
128. We would think that the position Under Section 167 as applicable in cases under UAPA is as follows:
Undoubtedly, the period of 30 days is permissible by way of police custody. This Court will proceed on the basis
that the legislature is aware of the existing law when it brings the changes in the law. In other words, this Court had
laid down in Anupam Kulkarni (supra), inter alia, that Under Section 167 which provides for 15 days as the
maximum period of police custody, the custody of an Accused with the police can be given only during the first 15
days from the date of the remand by the Magistrate. Beyond 15 days, the remand can only be given to judicial
custody. Ordinarily, since the period of 15 days has been increased to 30 days, the effect would be that in cases
falling under UAPA applying the principle declared in MANU/SC/0335/1992 : (1992) 3 SCC 141, the investigating
officer in a case under UAPA, can get police custody for a maximum period of 30 days but it must be within the
first 30 days of the remand. In this regard, the number of days alone is increased for granting remand to police
custody. The principle that it should be the first 30 days has not been altered in cases under UAPA.
As far as the second proviso in Section 43(D)(2)(b) is concerned, it does bring about an alteration of the law in
Anupam Kulkarni (supra). It is contemplated that a person who is remanded to judicial custody and NIA has not
been given police custody during the first 30 days, on reasons being given and also on explaining the delay, Court
may grant police custody. The proviso brings about the change in the law to the extent that if a person is in judicial
custody on the basis of the remand, then on reasons given, explaining the delay, it is open to the Court to give police
custody even beyond 30 days from the date of the first remand. We may notice that Section 49(2) of Prevention of
Terrorism Act is pari materia which has been interpreted by this Court in MANU/SC/0567/2004 : AIR 2004 SC
3946 and the decision does not advance the case of Appellant though that was a case where the police custody was
sought of a person in judicial custody but beyond 30 days.
In this regard, it would appear that the Appellant had surrendered on 14.04.2020. He was not in judicial custody. He
was produced with a remand report seeking police custody on 15.04.2020. Treating this as a remand sought within
the first 30 days, a remand is ordered for a period of 7 days initially. There is no dispute that the period was police
custody. We may notice that an Accused under UAPA may be sent to judicial custody, police custody or granted
bail. If the argument that the police custody can be sought at any time and it is not limited to cases where there is
judicial custody, it will go against the clear terms of the proviso and even a person who is bailed out can after 30
days be remanded to police custody. This is untenable. The case of the Appellant that the police custody granted on
15.04.2020 was permissible and consistent with his case does not appear to be correct.
THE DECISION IN MANU/SC/7326/2007 : (2007) 5 SCC 773
129. The High Court placed considerable reliance on the judgment reported in State of West Bengal v. Dinesh
Dalmia MANU/SC/7326/2007 : (2007) 5 SCC 773. So also the Additional Solicitor General, Shri Raju. In the said
case, the Respondent was arrested in New Delhi. He was produced before the Magistrate on transit remand in
Chennai. The Investigating Officer, in cases in Calcutta, prayed for production warrant before the Court at Calcutta
as the Respondent was arrested and detained in the CBI case before the Magistrate at Chennai. The said prayer was
allowed and the order was sent to the Court at Chennai. There was a further order by the Calcutta Court issued that
the Respondent should not be released in the CBI cases in Chennai. The Respondent also came to know that he was
wanted in two more cases pending in Calcutta. He voluntarily surrendered before the Magistrate in Chennai. It was
on the basis of the cases at Calcutta. The Respondent stood remanded to judicial custody till 13.03.2006. Finally,

Page 395
after the procedures were under gone the Respondent was produced before the Magistrate at Calcutta. The
Investigating Officer in the case at Calcutta sought police custody of 15 days. The Respondent moved for bail
contending that he had surrendered in the Court at Chennai and the period of 15 days had elapsed from the date of
surrender. Finally, the matter reached before the Calcutta High Court against the order of the Magistrate rejecting
the application for bail and ordering police custody. The Calcutta High Court in the revision filed by the
Respondent found that more than 90 days, had expired from the time of the detention which should have been
counted from 27.02.2006 when the Respondent had surrendered before the Court at Chennai. Therefore, the
question for consideration before this Court was whether the period of detention started from 27.02.2006 when the
Respondent had surrendered before the Court at Chennai in connection with the CBI case or whether it should be
counted from 13.03.2006 when the Respondent was actually taken into custody by the police and produced before
the Magistrate at Calcutta. This Court held that the Respondent having voluntarily surrendered before the Court at
Chennai could not be treated as being in detention under the cases registered at Calcutta. The Accused, in fact, it
was found continued to be under the judicial custody in relation with the CBI case in Chennai. The Court referred
to the decision of this Court in Niranjan Singh and Anr. v. Prabhakar Rajaram Kharote and Ors.
MANU/SC/0182/1980 : (1980) 2 SCC 559 and reiterated that if there is a totally different offence then it will be a
separate offence for which the detention in the previous case cannot be counted for the purpose Section 167.
130. The present is a case where there is only one FIR, one case. This is a case where following arrest and
production before the Magistrate a remand is made which is then questioned. The High Court orders house arrest.
131. THE CIRCUMSTANCES THAT MILITATE AGAINST THE ORDER OF HOUSE ARREST BEING
ONE UNDER SECTION 167.
1. The High Court entertains the writ petition on 28.08.2018. It intended to dispose of the matter on the very next
day. The order of house arrest was passed in such circumstances. But there was custody and what is more, it went
on for 34 days.
2. The High Court was unable to go through the entries in the case diary as the entries were in the Marathi language.
In fact, the court expresses inability to make out from the documents what precisely the case against the Appellant
was. Translation of the documents were to be made available on the next day. The translations were not made
available. Yet the house arrest was ordered until further orders on 28.08.2018. What is pertinent is that by the
standards in law applicable to a Magistrate acting Under Section 167, the High Court did not purport to act Under
Section 167. This is different from saying that it acted in violation of the mandate of law.
3. It is true that there was no stay of investigation as such. However, what was challenged was the transit remand.
The FIR was lodged in another state. Interrogation of the Appellant would be integral to the investigation. On the
terms imposed by the High Court in regard to house arrest it was not possible for such interrogation to take place. It
appears that the parties did not contemplate as it is presently projected. It is no doubt true that the Respondent
could have moved the High Court.
4. The house arrest according to the Appellant is by way of modification of the order of remand. In other words, the
contention is that the High Court stayed the transit. But the High Court when it passed the order of house arrest on
28.08.2018, it modified the remand from police custody to house arrest. Subject to what follows we proceed on the
basis that the High Court modified the order of remand. The transit remand order of the CMM Saket provided for
police custody which was to last for two days. But on the basis of the house arrest ordered by the High Court by
interim order the Appellant underwent house arrest for 34 days. By the judgment dated 01.10.2018 the High Court
of Delhi set aside the transit remand, as the transit remand ordered by the magistrate was found illegal. On the said
basis the High Court of Delhi finds that detention beyond 24 hours was clearly impermissible. Now it is relevant to
notice that the CMM Saket had not ordered detention for the period after 30.08.2018. Detention was ordered by
him only for two days and the Appellant was to be produced on 30.08.2018. By the order of the High Court of
Delhi, the transit could not take effect. Therefore, the entire period after 30.08.2018 till 01.10.2018 cannot be said to
be based on the order of the magistrate. The said period in fact is covered by the order of house arrest. The period
of house arrest covered the period from 28.08.2018 based on the order of the High Court. The arrest was effected at
2.15PM on 28.08.2018. The order of the CMM was passed within the next hour or so. The order of the High Court
was passed at about 4.30PM. No doubt, it is the order of the magistrate which originated the remand Under Section
167 to police custody. The High Court of Delhi proceeded to find that without the support of a valid remand order
by the magistrate, the detention exceeded 24 hours rendering it untenable in law and the further finding however is
that consequently the house arrest came to an end as of then (01.10.2018). Therefore, the High Court did not
proceed to pronounce the house arrest as non est or illegal. On the other hand, when it is pronounced, it as having
come to an end on 01.10.2018 and no part of it is found to be illegal, it meant that it was valid from the point of

Page 396
time it was passed till 01.10.2018. If this is perceived as an order passed Under Section 167 then there would not be
any detention beyond 24 hours of the arrest which could be illegal. The illegality of the detention is based on the
transit order being found illegal. If the transit order has been modified as claimed by the Appellant, then the
detention would be lawful as the order of house arrest is passed well within 24 hours of the arrest. We are
highlighting this aspect to emphasize this as a circumstance to show that the High Court of Delhi also did not
contemplate that the order of house arrest was passed by way of custody Under Section 167. No doubt, the
foundational order, the transit remand, being set aside it could be said that the interim order will not survive. But
then the order should have been so understood by the High Court.
5. Undoubtedly, the Appellant was placed in police custody from 15.04.2020 to 25.04.2020. Even the enhanced
period of 30 days of police custody, permissible Under Section 43(D)(2) of UAPA, must be acquired within the first
30 days of the remand. Proceeding on the basis of the case of the Appellant that the first remand took place on
28.08.2018, the Appellant being in police custody for a period of 11 days in 2020 is inconsistent with Appellants
case and the law. Though police custody can be had under UAPA beyond the first 30 days under the Second
Proviso to Section 43(D)(2), it is permissible only in a situation, where the Accused is in judicial custody. The
Appellant was, admittedly, not in judicial custody, having surrendered to the NIA on 14.04.2020, which is on the eve
of the first order directing police custody.
6. One of the contentions raised by the Respondent is that if the order of house arrest was passed Under Section
167 Code of Criminal Procedure then the High Court of Delhi would have after setting aside the transit remand,
either released the Appellant on bail or remanded him to custody. Instead, the High Court released the Appellant on
the basis that as the remand order was illegal and set aside, in view of Section 56 and Section 57 the detention
beyond 24 hours, cannot be sustained. Now in a proceeding Under Section 167 where a remand order is put in issue
before a superior court it presupposes an arrest in connection with a cognizable offence. Now if the remand is set
aside by the superior court, we are of the view that in a proceeding which originated from a remand Under Section
167, then the order that would follow on setting aside the remand, would be to grant him bail or to modify the
remand. This is for the reason that there is an arrest which in the first place sets the ball rolling. Therefore, he has
either to be released on bail, if not, he would have to be remanded. It is here that we may remember the decision of
this Court in MANU/SC/0047/1968 : (1969) 1 SCC 292 (supra). There was a remand. Violation of Article 22(1)
was found in a Writ Petition Under Article 32. It was, in fact, a non-cognizable offence, which was involved. The
Court released the Petitioners. The remand orders were found patently routine and were not such as would cure the
constitutional infirmities. In the said case, arrest was put in issue and found bad in law.
7. No doubt there is the filing of application for anticipatory bail wherein the Appellant has clearly projected the
period of house arrest as protection of this liberty. It was also sought to be rested under the extraordinary power of
this Court. [We would observe that while his conduct is not irrelevant in appreciating the matter, the contours of
personal liberty would better rest on surer foundation. Estoppel, may not apply to deprive a person from asserting
his fundamental right. A right to default bail is fundamental right [See Bikramjit Singh v. The State of Punjab
MANU/SC/0749/2020 : (2020) 10 SCC 616]. But hereagain, it must depends upon fulfilment of conditions in
Section 167.
THE KNOT TIGHTENED
132. Now, the argument, which survives is as follows:
What mattered was that the Appellant actually underwent the actual custody of 34 days by way of house arrest. The
fact that there may have been illegality in the Order of the Magistrate, will not take away, the factum of actual
custody. The fact that the Appellant was given in Police custody and he did not object, cannot defeat Appellant's
right. What is relevant is that a period of 90 days had run out. It is emphasised before us that be it the High Court, it
could not have ordered the detention of the Appellant without authority of the law. The only law, which supports
the house arrest, is Section 167 of the Code of Criminal Procedure.
133. We have already noticed the circumstances surrounding the Order passed by the High Court. We would also, at
this juncture, again capture the Order dated 29.08.2018, passed by this Court:
Taken on Board.
Issue notice.

Page 397
Mr. Tushar Mehta and Mr. Maninder Singh, learned Additional Solicitor Generals being assisted by Mr. R.
Balasubramanian, learned Counsel shall file the counter affidavit by 5.9.2018. Rejoinder thereto, if any, be filed
within three days therefrom.
We have considered the prayer for interim relief. It is submitted by Dr. Abhishek Manu Singhvi, learned Senior
Counsel appearing for the Petitioners that in pursuance of the order of the High Court, Mr. Gautam Navalakha and
Ms. Sudha Bharadwaj have been kept under house arrest. It is suggested by him that as an interim measure, he has
no objection if this Court orders that Mr. Varavara Rao, Mr. Arun Ferreira and Mr. Vernon Gonsalves, if arrested,
they are kept under house arrest at their own homes. We order accordingly. The house arrest of Mr. Gautam
Navalakha and Ms. Sudha Bharadwaj may be extended in terms of our orders.
Needless to say, an interim order is an interim order and all contentions are kept open.
Let the matter be listed on 6.9.2018.
134. We would think that the reality of the situation is explained by the said Order. Upon being informed that the
Appellant and another were kept under house arrest, on the suggestion of the Counsel for the Petitioners in the
Public Interest Litigation before this Court, that he had no objection in three others, if arrested, they be kept under
house arrest, at their own homes, it was so ordered. It is not a case where this Court even had in its mind the duty to
go through the entries in the case diaries relating to them, leave alone actually going through them. Quite clearly, in
respect of those persons, house arrest even was the result of the choice exercised by the Senior Counsel for the Writ
Petitioners, who were not the persons to undergo the house arrest. No doubt, the Public Interest Litigation was
launched to have an impartial enquiry regarding their arrests. It is thereafter that it was ordered that the house arrest
of Appellant and other (Sudha Bharadwaj), may be extended in terms of the order. House arrest was, undoubtedly,
perceived as the softer alternative to actual incarceration. It was in that light that the Court proceeded in the matter.
That house arrest, in turn, involved, deprivation of liberty and will fall within the embrace of custody Under Section
167 of the Code of Criminal Procedure, was not apparently in the minds of both this Court and the High Court of
Delhi. This is our understanding of the orders passed by the court.
135. Now, here, we are confronted with a clash between the two values. On the one hand, there is the deprivation,
in law, of the liberty of the Appellant, by way of house arrest for 34 days. On the other hand, it does not fall actually
in the facts of this case within the ambit of Section 167 of the Code of Criminal Procedure, for the reasons, which
have been discussed earlier. While, the Right to Default Bail is a Fundamental Right, it is subject to the conditions,
obtaining in Section 167 of the Code of Criminal Procedure, being satisfied. It must be purported to be passed
Under Section 167 Code of Criminal Procedure. The right to statutory bail arises dehors the merits of the case. The
fundamental right arises when the conditions are fulfilled. The nature of detention, being one Under Section 167 is
indispensable to count the period.
136. On the other hand, Article 21 of the Constitution of India, provides that no person shall be deprived of his life
or personal liberty except in accordance with the procedure prescribed by law. This Article, creates a Fundamental
Right, which cannot be waived. Moreover, unlike the persons, who apparently underwent house arrest on the basis
of the offer made on their behalf, in the case of the Appellant, even prior to the order dated 29.08.2018, the High
Court had ordered house arrest, which constituted house arrest. The Appellant was an Accused in a FIR invoking
cognizable offences. He stood arrested by a Police Officer. He was produced before a Magistrate. A transit remand,
which was a remand, Under Section 167, was passed. Police custody followed. The High Court ordered that the
Appellant be kept in house arrest. The setting aside of the Order of transit remand will not wipe out the Police
custody or the house arrest. We agree that illegality in order of the CMM, Saket, will not erase the deprivation of
liberty. But other aspects already discussed militate against the order being treated as passed purportedly Under
Section 167. There can be no quarrel with the proposition that a court cannot remand a person unless the court is
authorised to do so by law. However, we are in this case not sitting in appeal over the legality of the house arrest.
But we are here to find whether the house arrest fell Under Section 167. We are of the view, that in the facts of this
case, the house arrest was not ordered purporting to be Under Section 167. It cannot be treated as having being
passed Under Section 167.
137. There is one aspect which stands out. Custody Under Section 167 has been understood hitherto as police
custody and judicial custody, with judicial custody being conflated to jail custody ordinarily.
138. The concept of house arrest as part of custody Under Section 167 has not engaged the courts including this
Court. However, when the issue has come into focus, and noticing its ingredients we have formed the view that it
involves custody which falls Under Section 167.
Page 398
139. We observe that Under Section 167 in appropriate cases it will be open to courts to order house arrest. As to its
employment, without being exhaustive, we may indicate criteria like age, health condition and the antecedents of the
Accused, the nature of the crime, the need for other forms of custody and the ability to enforce the terms of the
house arrest. We would also indicate Under Section 309 also that judicial custody being custody ordered, subject to
following the criteria, the courts will be free to employ it in deserving and suitable cases.
140. As regards post-conviction cases we would leave it open to the legislature to ponder over its employment. We
have indicated the problems of overcrowding in prisons and the cost to the state in maintaining prisons.
141. In view of the fact that the house arrest of the Appellant was not purported to be Under Section 167 and
cannot be treated as passed thereunder, we dismiss the appeal. There will be no order as to costs.

Page 399
399

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NATIONAL UNIVERSITY OF STUDY AND

RESEARCH IN LAW, RANCHI

SESSION: JULY- DEC, 2023

SUBJECT- LAW OF CRIMES II

PREPARED BY: DR. JULIAN SEAL PASARI

Sr.No. Particulars Pg. No.

1 Ramashraya Chakravarti v. State of M. P.; AIR 1976 SC 392 04

2 Sunil Batra v. Delhi Administration; AIR 1978 SC 1675 06

4 Harpal Singh Chauhan v. State of U.P.; AIR 1993 SC 2436 61

5 D. K. Basu v. State of W.B.; AIR 1997 SC 610 67

9 State of Haryana v. Ch. Bhajanlal, AIR 1992 SC 604 94

14 CBI v. Sri Ravi Shanker Srivastava; AIR 2006 SC 2872 144

15 Arnesh Kumar v. State of Bihar; (2014) 8 SCC 273 150

16 Lalita Kumari v. Government of U.P AIR 2014 SC 187 155

22 KM Mathew vs. State of Kerala, 1992 (1) SCC 217 230

23 Anil Saran v. State of Bihar; AIR 1996 SC 204 232

24 Mohinder Singh v. State (Chandigarh Admn.), (1997)115PLR623 234

26 Mohammad. Safi v. State of W. B.; AIR 1966 SC 69 240

27 Banarsi Das v. Mohan Lal; 1986 CriLJ 1154 (P&H) 244

28 P. Gopalkrishnan @Dileep v. State of Kerala: 2019 SCC Online SC 1532 247

30 Moti Ram v. State of M.P.; AIR 1978 SC 1594 279

35 Pradeep Ram v. State of Jharkhand, 2019 SCC Online SC 825 340

Equivalent Citation: AIR1976SC392, 1976CriLJ334, 1976()JLJ153(SC), (1976)1SCC281, (1976)SCC(Cri)1,

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 154 of 1975

Decided On: 13.11.1975

Appellants: Ramashraya Chakravarti

2. Hegel in his 'Philosophy of Right' pithily put the difficulty as follows:

© Manupatra Information Solutions Pvt. Ltd.

Equivalent Citation: AIR1978SC1675, AIR1980SC1579, 1978CriLJ1741, 1980CriLJ1099, (1978)4SCC494,

IN THE SUPREME COURT OF INDIA

Writ Petition No. 2202 and 568 of 1977

Decided On: 30.08.1978

Appellants: Sunil Batra

this Court's role as catalyst of prison justice.

(Shelton v. Tucker, 364 US 476 (1950) at p. 468)

30. Karuna is a component of jail Justice.

Court's interpretative function when faced with invalidatory alternative.

The two problems and our basic approach

The Cooper effect and the Maneka armour vis-a-vis prisons.

One prisoner wrote :

They seem to fall apart emotionally and mentally;

The curse of the system is, in Nehru's words :

117. Is he under sentence of death ? Not yet.

Section 366 Cr.P.C. has pertinence at this point :

(a) Rules framed by the Government of India :

Mr. Justice Douglas, in his dissent, quoted from an earlier case :

The Sobraj Case

146. Discomfited Sobraj has moved this Court.

151. He has averred :

(iv) All accused persons in Vidya Jain murder case; and

Rights and Realities

If confinement takes place, there should be a short-term mandatory review.

... Restraint should be time-limited, with a maximum of five to seven days.

The key jurisdictional preconditions are :

(i) absolute necessity for fetters;

(iii) record of those reasons contemporaneously in extenso;

Access and the Law

(2) Rules in this area are seen often to go unobserved....

(3) Regulations are easily circumvented....

236. I agree that the petitions be dismissed.

Bhagwati, J ,observed as under :

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