Varghese John vs Kerala

Section 2(u) defines "Public Prosecutor". As per this provision, a person appointed as Public
Prosecutor under Section 24 is a Public Prosecutor. So, also the person who is acting under the
directions of the Public Prosecutor so appointed is also a Public Prosecutor. In the definition, the
legislature used the words "means" and "includes". When such a course is adopted by the
legislature while defining a term, it is settled rule of interpretation that such definition is to be given
a wider meaning and is not exhaustive or restricted to the items contained or included in such
definition. When such a wide interpretation is to be given to the definition under Section 2(u), the
effect will be that not only the person appointed as Public Prosecutor under Section 24 is to be
treated as Public Prosecutor, but also any other person acting under the direction of that Public
Prosecutor to be a Public Prosecutor.
Section 301 deals with appearance by Public Prosecutors. Clause (2) of that section deal with the
circumstances under which a pleader can be instructed by any private person to prosecute any
person in any Court. If any private person instructs a pleader to prosecute Anr. in any court, the
Public Prosecutor in charge of the case shall conduct the prosecution and the pleader so instructed
shall act therein under the direction of the Public Prosecutor with the permission of the Court. It
is also provided that such pleader can submit written arguments after the evidence is closed in the
case. Thus, the pleader so instructed by the private person cannot of his own accord assume the
role of the Public Prosecutor. The pleader so instructed by the private person should act under
the directions of the Public Prosecutor who shall conduct the case. Prosecutor mentioned in the
section is to be understood as defined in Section 2(u). The Public Prosecutor can require any other
person to act for and on his behalf under his direction. If a person is so directed by the Public
Prosecutor, that person gets the status and power of the Public Prosecutor. When a private party
wants to take part in the inquiry, trial or appeal of a case and instructs a pleader to prosecute Anr.
in Court, that pleader cannot act except under the direction of the Public Prosecutor, or of the
person who acts under the direction of the Public Prosecutor. If the Public Prosecutor directs the
pleader so instructed by the private person to prosecute the accused, then such pleader will come
under the ambit of the definition under Section 2(u) of the Code and thereby can be treated as a
Public Prosecutor. We hold that the Public Prosecutor can direct Anr. to conduct the case arid
when the said Anr. So conducts the case at the direction of the Public Prosecutor he will be a
"Public Prosecutor" coming within the purview of the Code. A question has arisen as to whether
the Public Prosecutor can direct any other person other than a pleader or an advocate to conduct
the case under his direction. Definition in Section 2(u) does not contain any such restriction.
Parliament in its wisdom has not imposed any such restriction. Any person whom the Public
Prosecutor considers competent to conduct the case at his direction, can be required to conduct
the case. Such a person so directed by the Public Prosecutor will certainly be "Public Prosecutor"
as defined in the Code.
When a senior counsel engaged in a case permits his junior counsel to act for him it does not mean
that the responsibility is not on the senior counsel. So is the case with a Public Prosecutor
permitting a Pleader or a private person to act in the case. The responsibility for questions put to
the witnesses cannot be disowned later by the Public Prosecutor, and in so far as the matter in
which the Pleader is allowed to act by the Public Prosecutor is concerned that will be taken to be
the act of the Public Prosecutor or Assistant Public Prosecutor as the case may be. In the
circumstances of this case, where the Assistant Public Prosecutor has agreed to the conduct of
examination of the witnesses by the Pleader of a private person, it is necessarily within his
competence under Section 301(2) of the Act.

Laxman Rupchand Meghwani vs Gujarat

Public prosecutor holds a "Public Office". The primacy given to him under the Scheme of Cr.P.C.
has a "special purpose". Certain professional, official obligations and privileges are attached to his
office. His office may also be termed as an office of profit as he remains disqualified to contest
the election so long he holds the office though permanency is attached to the office and not to the
term of his office. His duties are of public nature. He has an "independent and responsible
character". He holds the public office within the scope of "quo-warranto proceedings". Prosecutor
is not a part of investigating agency but is an "independent statutory authority". He performs
statutory duties and functions. He holds an office of responsibility as he has been enclothed with
the power to withdraw the prosecution of a case on the directions of the State Government. the
Government Pleader of this court is employed by the State on remuneration paid from the public
exchequer and having regard to the various functions and duties to be performed by him in the
due exercise of that office, most of which are an independent and responsible character, the office
must be held to be a public office within the scope of a quo warranto proceeding.
The plain reading of Section 24 of the Cr.P.C. and the Rules, referred to above, makes it clear that
the District Magistrate in consultation with the Sessions Judge may prepare a panel of names of
persons, who are in the opinion of the District Magistrate fit to be appointed as the Public
Prosecutor. The use of the words "fit to be appointed as Public Prosecutor" and "suitable
person" goes to show that the fitness and suitability are the express statutory requirements of
Section 24.
Meaning of the word 'fit': The New Oxford dictionary of English (Indian Edition) explains the
word "fit" as of a person having the requisite skills to undertake something competently
The essential requirement of fitness, under Section 24(4) Cr.P.C., is that the person should be
suitable for doing the particular work, which is different from his eligibility.
The appointee is, therefore, required to be fit and suitable for, (a) holding the independent office
of the Public Prosecutor in the manner in which it is required to be held under the law; (b) for
being able to perform the duties and functions that are required to be performed by the Public
Prosecutor in the manner in which they are expected to be performed under the law.
In the case of Centre for PIL and another v. Union of India [MANU/SC/0179/2011 : (2011) 4
SCC 1] emphasis was placed on the necessity to make the appointment keeping in mind the need
for the institutional integrity and to take into consideration what is good for the institution and
not what is good for the appointee.
Role and function: The office of the Public Prosecutor involves duties of public nature and of
vital interest to the public. Sections 199(2), 225, 302, 308, 378, 301, 385 (1) and 321 of the Cr.P.C.
are some of the provisions in the Cr.P.C., which confers a special position upon the Public
Prosecutor. This would go to show that a Public Prosecutor is not just an advocate engaged by the
State to conduct its prosecutions. The importance of the office from the point of view of the State
and Community, is brought out in Section 321, Cr.P.C. which vests in the Public Prosecutor a
discretion to apply to the Court for its consent to withdraw from the prosecution of any person.
The consent, if granted, has to be followed by the discharge of the person or his acquittal as the
case may be. The Public Prosecutors are officers of the Court who assist the Courts in the process
of dispensation of justice. He should strike a fair balance between the competing interests of
convicting the guilty, protecting citizens' rights and freedoms and protecting the public from
criminals. Prosecutors should ensure that prosecutions are conducted in a diligent, competent and
fair manner. The importance of the office of the Public Prosecutor cannot be overemphasized.
The Public Prosecutor must be a person of high merit, fair and objective, because upon him
depends to a large extent the administration of criminal justice. The office of the Public Prosecutor
is a public office and the incumbent has to discharge statutory duties. The person appointed as
Public Prosecutor must, therefore, be one who is not only able and efficient, but also enjoys a
reputation and prestige which satisfy his appointment as a Public Prosecutor. He must not
suppress or keep back from the court evidence relevant to the determination of the guilt or
innocence of the accused. He must present the complete picture, and not a one-sided picture. He
must not be partial to the prosecution or to the accused. He has to be fair to both sides in the
presentation of the case.
A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the
accused somehow or the other irrespective of the true facts of the case. The expected attitude of
the Public Prosecutor while conducting prosecution must be couched in fairness not only to the
Court, to the investigation agencies, but to the accused as well. If an accused is entitled to any
legitimate benefit during trial, the Public Prosecutor should not scuttle/conceal it. On the contrary,
it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused.
Even if the defence counsel overlooked it, the Public Prosecutor has the added responsibility to
bring it to the notice of the Court, if it comes to his knowledge.
The authorities must take into consideration the question of institutional competence into
account. If the selection would adversely affect the institutional competence and functioning, then
it is their duty not to appoint such a candidate. Institutional integrity should be the primary
consideration while submitting proposals for appointment to the post of a Public
Prosecutor. When institutional integrity is in question, the touchstone should be "public interest".
Personal integrity is relevant, and has a co-relationship with institutional integrity. If a duty is cast
under the Section to recommend the name of the selected candidates, the integrity of that decision
making process must ensure that the powers are exercised for the purposes, and in the manner,
envisaged by the said Section, otherwise such recommendation will have no existence in the eye
of the law.
The factors which the District Judge may take into consideration, before satisfying himself that an
eligible advocate is "fit" to be empanelled for being considered for appointment as a Public
Prosecutor/Additional Public Prosecutor, would include the performance of the advocate at the
bar, the volume and quality of his practice, the manner in which he conducts himself in Court, his
integrity, a blemishless background, fairness of approach to cases presented by him before the
Court, adverse material, if any, the effect of strictures or remarks passed by High Court or Supreme
Court in any judgment or order etc. In this regard, it should be kept in mind that the final decision
is always taken by the Government being the appointing authority and not by the District
Magistrate who has only to make his recommendations after holding effective consultation with
the Sessions Judge. The use of the word "shall", therefore, in the context of consultation between
the District Magistrate and the Sessions Judge has a far reaching consequence, inasmuch as, the
State Government intends to select the best person for being appointed on the post of
Government Pleader and Public Prosecutor and who can be in a more better position than the
District & Sessions Judge to give his opinion as regards the character, integrity, competence, or
the like of a lawyer being suitable to assist the Court in performance of the duties of the
Government Pleader as well as Public Prosecutor.
The State should bear in mind the dicta of this Court in Mundrika Prasad Singh
(MANU/SC/0017/1979 : AIR 1979 SC 1871) (supra), as regard the necessity to consult the
District Judge. While making appointments of District Government Counsel, therefore, the States
should give primacy to the opinion of the District Judge. Such a course of action would
demonstrate fairness and reasonableness of action and, furthermore, to a large extent the action
of the State would not be dubbed as politically motivated or otherwise arbitrary.
Though consultation does not mean "concurrence", it postulates an effective consultation which
involves exchange of mutual viewpoints of each other and examination of the relative merits of
the other point of view. Consultation or deliberation is not complete or effective before the parties
thereto make their respective points of view known to the other or others and discuss and examine
the relative merits of their views.
It goes without saying that the "fitness" of the empanelled advocates must also be examined by
the Government before appointing one of them as the Public Prosecutor. The appointment to the
post of the Public Prosecutor cannot be on the sweet will of a Minister. There are many relevant
considerations which should weigh with the Minister before finalizing the appointment. The State
should not act as a mere rubber stamp, otherwise, the very power of the appointment conferred
on it would be frustrated. The State is obliged to act fairly and take an appropriate decision as
regards the appointment of a particular person from the panel in public interest. The State should
not do anything which would shake the confidence of the people at large. In the past also, as I
have indicated, the State did undertake some exercise to determine the fitness and suitability of the
candidate.
In my view, the eligibility factor provides answer to the question "can the person perform?" The
suitability factor provides answer to the question "will the person perform?" The Supreme Court
in the case of Mahesh Chandra Gupta (supra) explained that "eligibility" is an objective factor.
Suitability belonging to the realm of subjectivity is a matter of opinion and beyond the scope of
judicial review – like consultation between DM & SJ, however, the grounds of consultation are
amenable to judicial review.
The District Magistrate as well as the District Judge should express their respective opinions as
regards the fitness and suitability in writing. The opinion in writing should indicate what was
discussed, considered, etc. The written opinion should also indicate whether any adverse material
had come to their notice and was looked into and discussed. The District Magistrate would be
wholly dependent on the opinion of the District Judge, because it is the District Judge, who would
know best the person who is being considered for the post being a member of the legal fraternity.
In a given case, on a given day, the District Judge could also be made answerable in a case like one
in hand. Sometimes, it may happen that the District Judge, who takes over on being transferred,
may not be familiar with the Bar. Obviously, he would take some time before he gets to know the
lawyers practicing at the Bar. When all of a sudden, he is to give an opinion to the District
Magistrate as a part of the consultative process, he might find it difficult. In such circumstances,
the District Judge is expected to inquire in his own way by talking to the senior members of the
Bar as regards the reputation of the person who is being considered for the post. He should not
express any opinion in the absence of any information or material with him. Such an action would
be nothing, but a mechanical exercise on the part of the District Judge. It is true that there is an
inherent danger in undertaking such process because there could be two sets of opinions. One,
probably, favouring a particular candidate, and the other, something adverse to him, but it is for
the District Judge in his own way to ascertain the eligibility as well as the suitability of the lawyer
who is being considered for the post. Except merit, nothing else should weigh with the District
and Sessions Judge. If there is anything adverse against any person named in the panel, then the
District and Sessions Judge should be bold and honest enough to state in his written opinion about
the same so that the State Government can also look into the same and would even help the Court
at times when the appointments are challenged on the ground of lack of effective consultative
process.
Don’t go merely by the total score on the marksheet, can be misleading go for the holistic view,
what is the score of different candidates in different marking criteria – one may have the highest
total score but the lowest score in overall conduct and personality. LLB degree given less
significance than LLM degree? The judge for this reason stressed upon the expression of opinion
and consultation between DM & SJ in writing.
(1) The words "in his opinion fit to be appointed as Public Prosecutor" are not to be construed in
the sense of a mere discretionary power, but in the context of the words "in consultation with the
Sessions Judge" impose a statutory duty to examine the fitness and suitability of the persons as
one of the important eligibility criteria or statutory requirements. The words "in the opinion" does
not mean purely subjective determination by the District Magistrate. It is not correct to say that
the words "in the opinion" leave the matter entirely at the subjective will of the District Magistrate
and the High Court cannot interfere in appropriate cases even when there is a failure to comply
with the legal requirements or the decision is not in public interest.
(2) The Public Prosecutor holds a "public office". He holds the public office within the scope of
a "quo warranto".
(3) Apart from the eligibility criteria provided by Section 24(7) of the Code and the rules so far as
the appointment as the Public Prosecutor is concerned, the other important eligibility criteria are
that such persons should be "fit" to be appointed.
(4) The institutional integrity of the institution of the Public Prosecutor should be kept in mind
while recommending the name of the candidate. Appointment to the post of a Public Prosecutor
must satisfy, not only the eligibility criteria of the candidate, but also the decision-making process
of the recommendations.
(6) The "fitness" of the empanelled advocates must also be examined by the Government before
appointing one of them as the Public Prosecutor.
(7) The allotment of marks or the marksheet alone can never be construed as an expression of
opinion as regards the "fitness" and "suitability".
(8) The District Magistrate as well as the District and Sessions Judge must express their respective
opinions in writing and such opinions must reflect what was considered and how.
(9) The written opinion should also indicate whether any adverse material had come to their notice
and was looked into and discussed.

Sunil Kumar Paul vs Phota Sheikh

The case of Sunil Kumar Pal vs Phota Sheikh And Ors., decided on August 13, 1984, involved the
alleged murder of an individual and the subsequent trial that faced challenges due to witness
intimidation and concerns about impartiality. Here's a brief breakdown: Background: Topan
Kumar Pal, a relative of the deceased, filed a First Information Report (FIR) alleging murder in
1975. The appellant, Sunil Kumar Pal, believed the police investigation was inadequate and unfair.
Witnesses expressed fear of testifying due to threats from the accused and perceived bias of local
authorities.
Key Issues: Fairness of investigation: The appellant questioned the thoroughness and impartiality
of the police investigation. Witness intimidation: Witness testimonies were potentially
compromised due to threats and fear. Public prosecutor's role: The public prosecutor's connection
to the accused raised concerns about bias. Court's Decision: The Supreme Court ultimately
dismissed the appeal, finding no sufficient grounds to interfere with the acquittal order by the
lower court. However, the judgment acknowledged the seriousness of witness intimidation and
emphasized the importance of fair and impartial investigations. Additional Points: This case
highlights the challenges faced in ensuring fair trials when witness intimidation and concerns about
impartiality exist. The judgment serves as a precedent for addressing such issues in the Indian legal
system.
Shri S.N. Ganguly, who was appointed Special Public Prosecutor to conduct the prosecution,
asked for an adjournment of the trial in order to enable him to prepare the case particularly since
he was appointed only on 20th May 1978, the trial was adjourned only for one day, with the result
that S.N. Ganguly had to return the brief. Then late in the evening of 22nd May 1978 Shri S.S. Sen
Additional Public Prosecutor was asked to conduct the prosecution and he had to begin the case
on the very next morning on 23rd May 1971 without practically any time for effective preparation.
We have no doubt that under these circumstances the trial could not be regarded as fair and just
so far as the prosecution was concerned. The entire course of events shows that the conduct of
the trial was heavily loaded in favour of respondent Nos. 1 to 9. The trial must in the circumstances
be held to be vitiated and the acquittal of respondent Nos. 1 to 9 as a result of such trial must be
set aside. It is imperative that in order that people may not lose faith in the administration of
criminal justice, no one should be allowed to subvert the legal process. No citizen should go away
with the feeling that he could not get justice from the court because the other side was socially,
economically or politically powerful and could manipulate the legal process. That would be
subversive of the rule of law.

Abdul Karim vs Karnataka

The law as it stands today in relation to applications under Section 321 is laid down by the majority
judgment delivered by Khalid, J. in the Constitution Bench decision of this Court in Sheonandan
Paswan v. State of Bihar & Ors., [1987 (1) SCC 288]. It is held therein that when an application
under Section 321 is made, it is not necessary for the court to assess the evidence to discover
whether the case would end in conviction or acquittal. What the court has to see is whether the
application is made in good faith, in the interest of public policy and justice and not to thwart or
stifle the process of law. The court, after considering the facts of the case, has to see whether the
application suffers from such improprieties or illegalities as would cause manifest injustice if
consent was given. When the Public Prosecutor makes an application for withdrawal after taking
into consideration all the material before him, the court must exercise its judicial discretion by
considering such material and, on such consideration, must either give consent or decline consent.
The section should not be construed to mean that the court has to give a detailed reasoned order
when it gives consent. If, on a reading of the order giving consent, a higher court is satisfied that
such consent was given on an overall consideration of the material available, the order giving
consent has necessarily to be upheld. Section 321 contemplates consent by the court in a
supervisory and not an adjudicatory manner. What the court must ensure is that the application
for withdrawal has been properly made, after independent consideration by the Public Prosecutor
and in furtherance of public interest. Section 321 enables the Public Prosecutor to withdraw from
the prosecution of any accused. The discretion exercisable under Section 321 is fettered only by a
consent from the court on a consideration of the material before it. What is necessary to satisfy
the section is to see that the Public Prosecutor has acted in good faith and the exercise of discretion
by him is proper.
The applications did not state why the Special Public Prosecutor apprehended a disturbance of the
peace and normalcy of the border area or the particular village, nor was any material in this behalf,
or a summary thereof, set out. There was, therefore, no basis laid in the applications upon which
the learned Judge presiding over the Designated Court could conclude that the Special Public
Prosecutor had applied his mind to the relevant material and exercised discretion in good faith and
that the withdrawal would not stifle or thwart the course of the law and cause manifest injustice.
The order of the learned Judge noted that the statement of opposition filed by the present appellant
averred that Rajkumar had been abducted by Veerappan and it said that he would have to take
notice of this aspect. The order did not note that the statement of opposition also said that,
consequent upon such abduction, the State of Karnataka had yielded to the demands made by
Veerappan and had issued notifications that it would withdraw all cases against Veerappan and his
associates. No query in this regard was made by the learned Judge with the Special Public
Prosecutor. It is not the case of anybody that any materials were placed before the learned Judge
upon the basis of which he could have been satisfied that the Special Public Prosecutor had applied
his mind thereto and had reached, in good faith, the conclusion that the withdrawal he sought was
necessary for the reasons he pleaded. The learned Judge placed on record, as he called it, the
decision of this Court in the case of Sheonandan Paswan, referred to above, but he did not
appreciate what it required of a Public Prosecutor and of a court in regard of Section 321, and he
did not follow it. The order granting consent on the Special Public Prosecutors application,
therefore, does not meet the requirements of Section 321 and is bad in law. The decision of the
Government of the State of Karnataka, therefore, was that, in view of its apprehension of the
unrest that would follow if any harm were to come to Rajkumar, it was better to yield to
Veerappans demand and to withdraw the TADA charges against Veerappan and his associates,
including the accused respondents. In this context, the Special Public Prosecutor should have
considered and answered the following questions for himself before he decided to exercise his
discretion in favour of such withdrawal from prosecution of the TADA charges.
1. Was there material to show that the police and intelligence authorities and the State
Government had a reasonable apprehension of such civil disturbances as would justify the
 dropping of charges against Veerappan and others accused of TADA offences and the
release on bail of those in custody in respect of the other offences they were charged with?
2. What was the assessment of the police and intelligence authorities and of the State
Government of the risk of leaving Veerappan free to commit crimes in future, and how
did it weigh against the risk to Rajkumars life and the likely consequent civil disturbances?
3. What was the likely effect on the morale of the law enforcement agencies?
4. What was the likelihood of reprisals against the many witnesses who had already deposed
against the accused respondents?
5. Was there any material to suggest that Veerappan would release Rajkumar when some of
Veerappan’s demands were not to be met at all?
6. When the demand was to release innocent persons languishing in Karnataka jails, was there
any material to suggest that Veerappan would be satisfied with the release of only the
accused respondents?
7. In any event, was there any material to suggest that after the accused respondents had
secured their discharge from the TADA charges and bail on the other charges Veerappan
would release Rajkumar?
8. Given that the Governments of the States of Karnataka and Tamil Nadu had not for 10
years apprehended Veerappan and brought him to justice, was this a ploy adopted by them
to keep Veerappan out of the clutches of the law?

Kerala vs KJ Ajith
In granting consent to withdraw a prosecution, the court exercises a judicial function. However,
in doing so, the court need not determine the matter judicially. The court only needs to be satisfied
that “the executive function of the Public Prosecutor has not been improperly exercised, or that it
is not an attempt to interfere with the normal course of justice for illegitimate reasons or
purposes.”
Quoting Rajendra Kumar Jain, “In the past, we have often known how expedient and necessary it
is in the public interest for the public prosecutor to withdraw from prosecutions arising out of
mass agitations, communal riots, regional disputes, industrial conflicts, student unrest etc.
Wherever issues involve the emotions and there is a surcharge of violence in the atmosphere it has
often been found necessary to withdraw from prosecutions in order to restore peace, to free the
atmosphere from the surcharge of violence, to bring about a peaceful settlement of issues and to
preserve the calm which may follow the storm. To persist with prosecutions where emotive issues
are involved in the name of vindicating the law may even be utterly counter-productive. An elected
Government, sensitive and responsive to the feelings and emotions of the people, will be amply
justified if for the purpose of creating an atmosphere of goodwill or for the purpose of not
disturbing a calm which has descended it decides not to prosecute the offenders involved or not
to proceed further with prosecution already launched. In such matters who but the Government
can and should decide, in the first instance, whether it should be baneful or beneficial to launch or
continue prosecutions. If the Government decides that it would be in the public interest to
withdraw from prosecutions, how is the Government to go about this task?”
Under the CrPC, it is the Public Prosecutor that has to withdraw from the prosecution and it is
the court that has to give its consent to such withdrawal. […] it is he that is entrusted with the task
of initiating the proceeding for withdrawal from the prosecution. But, where such large and
sensitive issues of public policy are involved, he must, if he is right-minded, seek advice and
guidance from the policy-makers. His sources of information and resources are of a very limited
nature unlike those of the policy-makers. If the policy-makers themselves move in the matter in
the first instance, as indeed it is proper that they should where matters of momentous public policy
are involved, and if they advise the Public Prosecutor to withdraw from the prosecution, it is not
for the court to say that the initiative comes from the Government and therefore the Public
Prosecutor cannot be said to have exercised a free mind. Nor can there be any quibbling over
words. If ill-informed but well-meaning bureaucrats choose to use expressions like “the Public
Prosecutor is directed” or “the Public Prosecutor is instructed”, the court will not on that ground
alone stultify the larger issue of public policy by refusing its consent on the ground that the Public
Prosecutor did not act as a free agent when he sought withdrawal from the prosecution. What is
at stake is not the language of the letter or the prestige of the Public Prosecutor but a wider
question of policy. The court, in such a situation is to make an effort to elicit the reasons for
withdrawal and satisfy itself, that the Public Prosecutor too was satisfied that he should withdraw
from the prosecution for good and relevant reasons.” Thus, the fact that the withdrawal was
initiated by the government was held not to vitiate the application, so long as the Public Prosecutor
had independently applied his mind.
The power of the court to grant consent for a withdrawal petition is similar to the power under
Section 320 of the CrPC to compound offences. The court in both the cases will not have to
enquire into the issue of conviction or acquittal of the accused person, and will only need to restrict
itself to providing consent through the exercise of jurisdiction in a supervisory manner. It was held
that though Section 321 does not provide any grounds for seeking withdrawal, “public policy,
interest of administration, inexpediency to proceed with the prosecution for reasons of State, and
paucity of evidence” are considered valid grounds for seeking withdrawal. Further, it was held that
the court in deciding to grant consent to the withdrawal petition must restrict itself to only
determining if the Prosecutor has exercised the power for the above legitimate reasons.
When an application under Section 321 CrPC is made, it is not necessary for the court to assess
the evidence to discover whether the case would end in conviction or acquittal. To contend that
the court when it exercises its limited power of giving consent under Section 321 has to assess the
evidence and find out whether the case would end in acquittal or conviction, would be to rewrite
Section 321 CrPC and would be to concede to the court a power which the scheme of Section 321
does not contemplate. The acquittal or discharge order under Section 321 are not the same as the
normal final orders in criminal cases. The conclusion will not be backed by a detailed discussion
of the evidence in the case of acquittal or absence of prima facie case or groundlessness in the case
of discharge. All that the court has to see is whether the application is made in good faith, in the
interest of public policy and justice and not to thwart or stifle the process of law. The court after
considering these facets of the case, will have to see whether the application suffers from such
improprieties or illegalities as to cause manifest injustice if consent is given.
The principles which emerge from the decisions of this Court on the withdrawal of a prosecution
under Section 321 of the CrPC can now be formulated: (i) Section 321 entrusts the decision to
withdraw from a prosecution to the public prosecutor but the consent of the court is required for
a withdrawal of the prosecution; (ii) The public prosecutor may withdraw from a prosecution not
merely on the ground of paucity of evidence but also to further the broad ends of public justice;
(iii) The public prosecutor must formulate an independent opinion before seeking the consent of
the court to withdraw from the prosecution; (iv) While the mere fact that the initiative has come
from the government will not vitiate an application for withdrawal, the court must make an effort
to elicit the reasons for withdrawal so as to ensure that the public prosecutor was satisfied that the
withdrawal of the prosecution is necessary for good and relevant reasons; (v) In deciding whether
to grant its consent to a withdrawal, the court exercises a judicial function but it has been described
to be supervisory in nature. Before deciding whether to grant its consent the court must be satisfied
that: (a) The function of the public prosecutor has not been improperly exercised or that it is not
an attempt to interfere with the normal course of justice for illegitimate reasons or purposes; (b)
The application has been made in good faith, in the interest of public policy and justice, and not
to thwart or stifle the process of law; (c) The application does not suffer from such improprieties
or illegalities as would cause manifest injustice if consent were to be given; (d) The grant of consent
sub-serves the administration of justice; and (e) The permission has not been sought with an
ulterior purpose unconnected with the vindication of the law which the public prosecutor is duty
bound to maintain; (vi) While determining whether the withdrawal of the prosecution subserves
the administration of justice, the court would be justified in scrutinizing the nature and gravity of
the offence and its impact upon public life especially where matters involving public funds and the
discharge of a public trust are implicated; and (vii) In a situation where both the trial judge and the
revisional court have concurred in granting or refusing consent, this Court while exercising its
jurisdiction under Article 136 of the Constitution would exercise caution before disturbing
concurrent findings. The Court may in exercise of the well-settled principles attached to the
exercise of this jurisdiction, interfere in a case where there has been a failure of the trial judge or
of the High Court to apply the correct principles in deciding whether to grant or withhold consent.

K Anbazhagan vs Karnataka
The only reasonable interpretation that can be given to the scheme laid out in Sections 24, 25, 25-
A and 301(1) of the Code is that a Public Prosecutor appointed for the High Court and who is put
in charge of a particular case in the High Court, can appear and plead in that case only in the High
Court without any written authority whether that case is at the stage of inquiry or trial or appeal.
Similarly, a Public Prosecutor appointed for a district and who is put in charge of a particular case
in that district, can appear and plead in that case only in the district without any written authority
whether that case is at the stage of inquiry or trial or appeal. So also, an Assistant Public Prosecutor
who is put in charge of a particular case in the court of a Magistrate, can appear and plead in that
case only in the court of a Magistrate without any written authority whether that case is at the stage
of inquiry or trial or appeal. Equally, a Special Public Prosecutor who is put in charge of a particular
case can appear and plead in that case only in the court in which it is pending without any written
authority whether that case is at the stage of inquiry or trial or appeal. In other words, Section
301(1) of the Code enforces the 'jurisdictional' or 'operational' limit and enables the Public
Prosecutor and Assistant Public Prosecutor to appear and plead without written authority only
within that 'jurisdictional' or 'operational' limit, provided the Public Prosecutor or the Assistant
Public Prosecutor is in charge of that case.
The converse is not true, and a Prosecutor (Public Prosecutor, Assistant Public Prosecutor or
Special Public Prosecutor) who is put in charge of a particular case cannot appear and plead in that
case without any written authority outside his or her 'jurisdiction' whether it is the High Court or
the district or the court of a Magistrate. In other words, Section 301(1) of the Code maintains a
case specific character and read along with Sections 24, 25 and 25-A of the Code maintains a court
or district specific character as well.”
Two anomalous situations that are likely to arise if such an interpretation is accepted. The first
anomalous situation which is pointed out by him is that a Public Prosecutor in charge of a case in
a district or an Assistant Public Prosecutor in charge of a case in the court of a Magistrate can
claim, on the basis of Section 301(1) of the Code, to appear and plead without any written authority
before any court in which that case is under appeal, including the High Court of the State. Since a
police officer can also be appointed as an Assistant Public Prosecutor, acceptance of the argument
would mean that a police officer (appointed as an Assistant Public Prosecutor) can appear and
plead without any written authority in the High Court of the State in which that case is under
appeal, which, by no stretch of imagination, can be the intent of Section 301(1) of the Code. The
other anomalous situation which the learned Judge has taken note of is that an appeal in the High
Court arising out of a case in a district, the Public Prosecutor for the High Court is engaged.
However, the Public Prosecutor in charge of that case in the district or an Assistant Public
Prosecutor (including a police officer) in charge of that case in the court of a Magistrate appears
in the High Court in the appeal relying, for this purpose, upon Section 301(1) of the Code. Then,
in the appeal, the said Public Prosecutor or the said Assistant Public Prosecutor could take a stand
that is diametrically opposed to or in conflict with the stand of the Public Prosecutor before the
High Court and, therefore, such an interpretation cannot be placed on Section 301(1) of CrPC.
A Public Prosecutor who is appointed in connection with a district his working sphere has to be
restricted to the district unless he is specially engaged to appear before the higher court. A Special
Public Prosecutor when he is appointed for any specific case and that too for any specific court, it
is a restricted appointment. In this context Section 25A of the Code renders immense assistance.
The State Government is under obligation to establish directorate of prosecution. Section 25A
clearly stipulates that Public Prosecutor, Additional Public Prosecutor and Special Public
Prosecutor are appointed by the State Government under sub-Section (1) or under sub- Section
(8) of Section 24 to conduct cases in the High Court, shall be subordinate to the Director of
Prosecution. Sub-section (6) postulates that the three categories named herein appointed by the
State Government to conduct cases in the district courts shall be subordinate to Deputy Director
of Prosecution. Thus, the scheme makes a perceptible demarcation and compartmentalization for
the Public Prosecutor in the High Court and the district courts.

Sheonandan Paswan vs Bihar

Section 321
(1) The application should be filed by a public prosecutor or Assistant public prosecutor who is
competent to make an application for withdrawal,
(2) He must be in charge of the case,
(3) The application should get the consent of the Court before which the case is pending.
In the present matter the grounds submitted seeking permission?
(a) Lack of prospect of successful prosecution in the light of the evidence,
(b) Implication of the persons as a result of political and personal vendetta,
(c) Inexpediency of the prosecution for the reasons of the State and public policy and
(d) Adverse effects that the continuance of the prosecution will bring on public interest in the light
of the changed situation.
Grounds - Section 321 does not give any guideline regarding the grounds on which a withdrawal
application can be made, such guidelines have to be ascertained with reference to decided cases.
While construing Section 321, it is necessary to bear in mind the wide phraseology used in it, the
scheme behind it and its field of operation. True, it does not give any guideline regarding the
grounds on which an application for withdrawal can be made. But in applying it, we have to bear
in mind that it was enacted with a specific purpose and it would be doing violence to its language
and contents by importing into the section words which are not there or by restricting its operation
by fetters in the form of conditions and provisos.
• This Court observed that paucity of evidence is enough ground to proceed - (when the
Court finds that there is no ground to proceed with the cases. Sections 203,227,245,257
and 258 are some such sections) – present matter did a comparison.

• Ending in conviction or acquittal - When an application under Section 321 Cr.P.C. is made,
it is not necessary for the Court to assess the evidence to discover whether the case would
end in conviction of acquittal. To contend that the Court when it exercises its limited
power of giving consent under Section 321 has to assess the evidence and find out whether
the case would end in acquittal or conviction, would be to re-write Section 321 Cr.P.C. and
would be to concede to the Court a power which the scheme of Section 321 does not
contemplate.

• Political purposes and political vendetta afford sufficient ground for withdrawal. - RK jain
case
“This is a supervisory function within the judicial function”
The initiative is that of the Public Prosecutor and what the Court has to do is only to give its
consent and not to determine any matter judicially. The judicial function implicit in the exercise of
the judicial discretion for granting the consent would normally mean that the Court has to satisfy
itself that the executive function of the Public Prosecutor has not been improperly exercised, or
that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or
purposes. The consent by the court is only in a supervisory manner and not essentially in an
adjudicatory manner. The grant of consent not depending upon a detailed assessment of the weight
or volume of evidence to see the degree of success at the end of the trial. Court’s function is to
give consent. The court is not obligated to record reasons for same. The section should not be
construed to mean that the Court has to give a detailed reasoned order when it gives consent. All
that is necessary for the Court to see is to ensure that the application for withdrawal has been
properly made, after independent consideration, by the public prosecutor and in furtherance of
public interest.
Public Prosecutor is not a persecutor. He is the representative not of an ordinary party to a
controversy, but of sovereignty whose obligation to govern impartially is as compelling as its
obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it
shall win a case, but that justice shall be done. As such he is in a peculiar and very definite sense
the servant of the land, the two-fold aim of which is that guilt shall not escape nor innocence
suffer. He may prosecute with earnest and vigour indeed; he should do so. But while he may strike
hard blows, he is not at liberty to strike foul ones.
Public Prosecutor must apply his own mind and come to his own decision whether to apply for
withdrawal or not, irrespective of the opinion or advice of the Executive. The PP is not the
executive, nor a flunk of political power. He acts as a limb of the judicative process, not as an
extension of the executive. An elected Government, sensitive and responsive to the feelings and
emotions of the people, will be amply justified if for purposes of creating an atmosphere of
goodwill or for the purpose of not disturbing the calm which has descended it decides not to
prosecute the offenders involved or not to proceed further with prosecutions already launched. In
such matters who but the Government can and should decide in the first instance whether it should
be baneful or beneficial to launch or continue prosecutions. The PP may act on the advice of the
Government in applying for withdrawal of the prosecution "where large and sensitive issues of
public policy are involved." The PP is not an absolutely independent officer. He is an appointee
of the Government for conducting in court any prosecution or other proceedings on behalf of the
Government concerned. So, there is the relationship of counsel and client between the Public
Prosecutor and the Government. A PP cannot act without instructions of the Govt.
The PP is bound to assist the court with his fairly considered view and the fair exercise of his
judgment. But at the same time, it must be noted that he conducts the prosecution on behalf of
the Central Government or the State Government, as the case may be, and he is an advocate acting
on behalf of the Central Government or the State Government which has launched the
prosecution. We are therefore of the view that there is nothing wrong if the Government takes a
decision to withdraw from the prosecution and communicate such direction to the Public
Prosecutor. If the PP is satisfied that these grounds are legitimate, he may file an application for
withdrawal from the prosecution. If on the other hand he takes the view that the grounds which
have been given by the Government are not legitimate he has two options available to him. He
may inform the Government that in his opinion, the grounds which have weighed with the
Government are not valid and that he should be relieved from the case and if this request of his is
not granted, he may tender his resignation. Or else, he may make an application for withdrawal
from the prosecution as directed by the Government and at the hearing of the application he may
offer his considered view to the court that the application is not sustainable on the grounds set
out by him and leave it to the court to reject the application. This power is conferred on the
Executive with a view to protecting the society against offenders who disturb the peace and
tranquillity of the society by committing offences. Of course, it is left to the Court to decide
whether to take cognizance of the offences set out in the charge-sheet but the filing of the charge-
sheet and initiation of the prosecution is solely within the responsibility of the Executive.
It is, therefore, clear that though the prosecution can be withdrawn at any stage, even after the
framing of the charge, it would not be competent to the Public Prosecutor, once the charge is
framed, to apply for withdrawal of the prosecution on the ground that the same material which
was before the Court when it framed the charge is not sufficient to sustain the prosecution. Of
course, if some material has subsequently come to light which throws doubt on the veracity of the
prosecution case the Public Prosecutor can certainly apply for withdrawal on the ground that the
prosecution is not well-founded. This court pointed out that consent is not to be lightly given on
the application of public prosecutor "without a careful and proper scrutiny of the grounds on
which the application for consent is made." It is not possible to provide an exclusive definition of
what may be regarded as falling within the imperative of public justice nor is it possible to place
the concept of public justice in a straitjacket formula.
RK Jain v State, 1980 Decision, Cited- [With Respect to Section 321] "1. Under the scheme of the
Code prosecution of an offender for a serious offence is primarily the responsibility of the
Executive. 2. The withdrawal from the prosecution is an executive function of the Public
Prosecutor. 3. The discretion to withdraw from the prosecution is that of the Public Prosecutor
and none else, and so, he cannot surrender that discretion to someone else. 4. The Government
may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can
compel him to do so. 5. The Public Prosecutor may withdraw from the prosecution not merely on
the ground of paucity of evidence but on other relevant grounds as well in order to further the
broad ends of public justice, public order and peace. 6. The Public Prosecutor is an officer of the
Court and responsible to the Court. 7. The Court performs a supervisory function in granting its
consent to the withdrawal. 8. The Court's duty is not to reappreciate the grounds which led the
Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public
Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous
considerations."
The public prosecutor should normally be credited with fairness in exercise of his power under
Section 321, when there is no attack against him of having acted in an improper manner. He had
before him the case diary statements and other materials. He perused them before filing the
application. Thus, his part under Section 321 in this case has been performed strictly in conformity
with this Section.

KJ John vs Kerala
The High Court was of the view that the provisions of sub-section (6) of section 24 could have
application in respect of States where there was a regular cadre consisting of hierarchy of
Prosecuting Officers with the Assistant Public Prosecutor at the lowest rung and having at the top
level Additional Public Prosecutors and Public Prosecutors. The High Court held that there was
no regular cadre of Prosecuting Officers in the State of Kerala comprising therein Public
Prosecutors and Additional Public Prosecutors.
Before this Court it was contended on behalf of the appellant/petitioners that Assistant Public
Prosecutors Grade I and Grade II together constituted a cadre of Prosecuting Officers so as to
attract the applicability of subsection (6) of section 24 of the Code. It was urged that in case the
meaning to the expression "regular cadre of Prosecuting Officers" under sub-section (6) of section
24 was given as to consist of a regular cadre of Prosecuting Officers going up to Public Prosecutor
at the top, then there was no benefit to such persons by enacting sub-sections (6) and (9) in section
24, by the Amending Act of 1978. It was further urged that there was no bar for appointment of
Assistant Public Prosecutors against tenure posts as officers on deputation.
The State of U.P. in its counter has brought out the distinction in these two kinds of posts in the
manner and terms of their appointment, discharge of duties, emoluments etc. It was further urged
that in Uttar Pradesh there was no regular cadre of Prosecuting Officers within the meaning of
section 24(6) of the Code of Criminal Procedure and as such the petitioners were not entitled to
appointment as Public Prosecutors or Additional Public Prosecutors.
Held - (1) The intention of introducing sub-section (6) and the deeming fiction in sub-section (9)
was in order to safeguard the promotional rights of Prosecuting Officers in such of the States
where there was already in existence a regular cadre consisting of a hierarchy of Prosecuting
Officers going to the top level of Additional Public Prosecutors and Public Prosecutors.
(2) The Kerala High Court was right in taking the view that the expression "regular cadre of
Prosecuting Officers" comprised a service with Assistant Public Prosecutor at the lowest level and
Public Prosecutors at the top. In case a regular cadre of Prosecuting Officers did not go up to
Public Prosecutor at the top, the State Government could not be considered as bound to appoint
Public Prosecutor or Additional Public Prosecutor only from among the persons constituting such
cadre under the Code of Criminal Procedure for conducting cases in the Sessions Court.
(3) It was within the competence of the State Government to keep such posts of Public Prosecutor
and Additional Public Prosecutor as tenure posts for some period based on contract and not to
make such posts as regular or permanent under any service rule. In this view of the matter, till
such posts were tenure posts, to be filled on contract basis for some period, the Assistant Public
Prosecutors who were members of a regular service could not claim any right to be appointed on
such posts under sub-section (6) of section 24 of the Code of Criminal Procedure.
In this view of the matter till such posts are tenure posts, to be filled on contract basis for some
period, the Assistant Public Prosecutors who are members of a regular service cannot claim any
right to be appointed on such posts under sub-section (6) of Section 24 of the Code of Criminal
Procedure. They are also eligible to be considered with any advocate of seven years standing if
willing to join such post on tenure basis by the District Magistrate in consultation with the Sessions
Judge. We cannot accept the contention of the learned counsel for the petitioners in this regard
that Assistant Public Prosecutors can be appointed on such tenure posts on deputation and may
return back to their parent service after completion of the period of such tenure posts. The State
of U.P. in its counter has clearly brought out the distinction in these two kinds of posts in the
manner and terms of their appointment, discharge of duties, emoluments etc. The Assistant Public
Prosecutors have avenues of promotion in their own cadre and no argument can however be
advanced in interpreting the provision of sub- section (6) of Section 24 on this basis.

Saramma Peter & Ors. vs State

There can be no doubt that only the Public Prosecutor or the Assistant Public Prosecutor in charge
of the case and none else, with the consent of the Court, could apply for withdrawal from
prosecution. He is not expected to act according to the instructions of the complainant but is the
sole Judge. The complainant does not come into the picture and indeed has no locus standi in the
matter of exercise of discretion by the Assistant Public Prosecutor.

Monica Bedi vs State of Andhra Pradesh

Article 20 (2) of the Constitution provides that no person shall be prosecuted and punished for
the same offence more than once. Article 20 (2) embodies a protection against a second trial and
conviction for the same offence. The well-known maxim `nemo debet bis vexari pro eadem causa'
embodies the well-established common law rule that no one should be put on peril twice for the
same offence. BLACKSTONE referred to this universal maxim of the common law of England
that no man is to be brought into jeopardy of his life more than once for the same offence. The
fundamental right guaranteed under Article 20 (2) has its roots in common law maxim nemo debet
bis vexari - a man shall not be brought into danger for one and the same offence more than once.
If a person is charged again for the same offence, he can plead, as a complete defence, his former
conviction, or as it is technically expressed, take the plea of autrefois convict. This in essence is
the common law principle.
What is prohibited under Article 20 (2) is, the second prosecution and conviction must be for the
same offence. If the offences are distinct, there is no question of the rule as to double jeopardy
being applicable. That the test to ascertain is whether two offences are the same and not the
identity of the allegations but the identity of the ingredients of the offences.

Kerala vs NR Shaji
Does the Court of the Committing Magistrate have the jurisdiction to entertain an application to
grant consent to withdraw from the prosecution?
After investigation, the magistrate committed the case against 27 accused to the Court of Session,
while proceedings against the remaining 17 accused were pending. At this stage, the Assistant
Public Prosecutor filed an application seeking consent to withdraw from the prosecution, citing
the government's non-objection and bleak prospects for a successful prosecution.
S.209. Commitment of case to Court of Session when offence is triable exclusively by it.- When in
a case instituted on a police report or otherwise, the accused appears or is brought before the
Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of
Session, he shall— (a) commit, after complying with the provisions of section 207 or section 208,
as the case may be, the case to the Court of Session, and subject to the provisions of this Code
relating to bail, remand the accused to custody until such commitment has been made; (b) subject
to the provisions of this Code relating to bail, remand the accused to custody during, and until the
conclusion of, the trial; (c) send to that Court the record of the case and the documents and articles,
if any, which are to be produced in evidence; (d) notify the Public Prosecutor of the commitment
of the case to the Court of Session.
Section 321 reproduced in the judgement.
As per Section 209, once it appears to the Magistrate that the offence is exclusively triable by a
Court of Session, he has no other option but to commit the case to the Court of Session. The
relevant word is ‘commit the case’ and not the accused. A careful analysis of Section 209 shows
that, once it appears to the Magistrate that the offence is exclusively triable by the Court of Session,
then other than for considering matters relating to bail and remand as provided under clauses (a)
to (d) of the said provision, the Magistrate has no implicit power to entertain any other matter,
including an application under Section 321.
The learned Magistrate had no jurisdiction to entertain the application filed under Section 321.
The procedure adopted and the order passed by the learned Magistrate in the instant case are
wrong and erroneous. The course available to the Magistrate was to direct the revision petitioner
to file the application before the Court of Session.

Arnesh Kumar vs Bihar

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. In
a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters
living abroad for decades are arrested.
Arrest brings humiliation, curtails freedom and cast scars forever. 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.
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. 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. The value of the proportionality permeates the amendment relating
to arrest.
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 officer 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 Cr.PC.
An accused arrested without warrant by the police has the constitutional right under Article 22(2)
of the Constitution of India and Section 57, Cr.PC to be produced before the Magistrate without
unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the
journey. 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. Before a Magistrate
authorises detention under Section 167, Cr.PC, 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.
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 Cr.PC 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. 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 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.

Delhi Judicial Service Association vs State of Gujarat

Held Court has inherent power and jurisdiction to take action for contempt of subordinate or
inferior courts also-Power to be exercised sparingly--Only when contempt is likely to have
repercussions throughout the country. Wide enough to include any act which would tend to
interfere with administration of justice or which would lower the dignity and authority of court.
Chief Judicial Magistrate--Assaulted, arrested on flimsy grounds, handcuffed, tied with rope,
photographs taken and published by Police Officers
To protect administration of public justice--Not to protect Judges personally. -Held constituted
criminal contempt--Punishment to contemners determined having regard to degree and extent of
part played by each contemner-Guidelines laid down by Supreme Court to be followed by State
Governments and High Courts while arresting Judicial Officers. Judicial officer not to visit police
station except in connection with official and judicial duties and with prior intimation to District
and Sessions Judge.
On 25th September 1989, the Police Inspector met the CJM in his chambers to discuss a case
where the Police had failed to submit the charge-sheet within 90 days. During discussion the Police
Inspector invited the CJM to visit the police station to see the papers and assured him that he
would mollify the sentiments of the police officials. At 8.35 p.m. on the said date, the Police
Inspector sent a Police Jeep to the CJM's residence and he went to the Police Station. According
when he arrived in the Police Station he was forced to consume liquor and on his refusal he was
assaulted, handcuffed and tied with rope by Police Inspector, Sub-Inspector, Head Constable, and
Constable and that he was sent to Hospital for Medical Examination under handcuffs. A
photographer was arranged to take his photograph which was published in the newspapers. The
Police Inspector disputed these allegations and according to him the CJM entered his chamber at
the Police Station in a drunken state, shouting and abusing him and since he was violent, he was
arrested, handcuffed and sent to Hospital for Medical Examination. He himself wanted to be
photographed and that is why the photographs were taken by the press photographer. As the
incident undermined the dignity of courts in the country, Judicial Officers, Judges and Magistrates
all over the country were in a state of shock, they felt insecure and humiliated. Petitions under
Article 32 for saving the dignity and honour of the judiciary filed.
That the CJM found that the Police of Nadiad was not effective in service of summons and had
adopted an attitude of indifference to the court's orders, and as complaints were forwarded to the
authorities by the CJM there was confrontation between the local police and the magistracy. When
the CJM visited the police station pursuant to the Police Inspector's request to discuss the matter,
he was forced to consume liquor and, on his refusal, he was assaulted. He was tied up with a rope
by the Police personnel and handcuffed deliberately in defiance of the state's Police Regulations
and Circulars and the decision of this Court in Prem Shankar Shukla v. Delhi Administration. A
request made by the CJM to the Civil Hospital doctors to contact and inform the District Judge
about the incident was not allowed. The District Superintendent of Police did not take immediate
action in the matter but created an alibi that he had gone elsewhere and stayed in the government
Rest House there, the register of the Rest House however indicating that the entry regarding the
stay was manipulated subsequently by making an interpolation.
Contempt of court is an act or omission calculated to interfere with the due administration of
justice. It includes civil and criminal contempt. The definition of criminal contempt is wide enough
to include any act by a person which would tend to interfere with the administration of justice or
which would lower the authority of court. The public have a vital stake in effective and orderly
administration of justice. The Court has the duty of protecting the interest of the community in
the due administration of justice and, so, it is entrusted with the power to commit for contempt
of court, not to protect the dignity of the Court against insult or injury, but to protect and vindicate
the right of the public so that the administration of justice is not perverted, prejudiced, obstructed
or interfered with.
The object and purpose of punishing contempt for interference with the administration of justice
is not to safeguard or protect the dignity of the Judge or the Magistrate, but the purpose is to
preserve the authority of the courts to ensure an ordered life in society. If the CJM is led into a
trap by unscrupulous Police Officers, and if he is assaulted, handcuffed and roped, the public is
bound to lose faith in Courts, which would be destructive of the basic structure of an ordered
society. If this is permitted Rule of Law shall be supplanted by Police Raj. It is necessary to lay
down guidelines which should be followed in the case of arrest and detention of a Judicial Officer.
In view of the paramount necessity of preserving the independence of judiciary and at the same
time ensuring that infractions of law are' properly investigated the following guidelines are to be
followed:
 (a) If a judicial officer is to be arrested for some offence, it should be done under intimation
to the District Judge or the High Court as the case may be.
(b) If facts and circumstances necessitate the immediate arrest of a judicial officer of the
subordinate judiciary, a technical or formal arrest may be effected.
(c) The fact of such arrest should be immediately communicated to the District and Sessions
Judge of the concerned District and the Chief Justice of the High Court.
(d) The Judicial Officer so arrested shall not be taken to a police station, without the prior
order or directions of the District & Sessions Judge of the concerned District, if available.
(e) Immediate facilities shall be provided to the Judicial Officer for communication with his
family members, legal advisors and Judicial Officers, including the District & Sessions
Judge.
(f) No statement of a Judicial Officer who is under arrest be recorded nor any panchnama be
drawn up nor any medical test be conducted except in the presence of the Legal Advisor
of the Judicial Officer concerned or another Judicial Officer of equal or higher rank, if
available.
(g) There should be no handcuffing of a Judicial Officer. If, however, violent resistance to
arrest is offered or there is imminent need to effect physical arrest in order to avert danger
to life and limb, the person resisting arrest may be overpowered and handcuffed. In such
case, immediate report shall be made to the District & Sessions Judge concerned and also
to the Chief Justice of the High Court. But the burden would be on the Police to establish
the necessity for effecting physical arrest and handcuffing the Judicial Officer and if it be
established that the physical arrest and hand-cuffing of the Judicial Officer was unjustified,
the Police Officers causing or responsible for such arrest and handcuffing would be guilty
of misconduct and would also be personally liable for compensation and/or damages as
may be summarily determined by the High Court.
These guidelines are not exhaustive but are the minimum safeguards to be observed in case of
arrest of a Judicial Officer. These should be implemented by the State Governments as well as by
the High Courts.

Eralottu Chathu vs Patingattillath Gopalan

Section 62 states that every summons shall be served by a police officer, or subject to such rules
as the State Government may make in this behalf, by an officer of the Court issuing it or other
public servant. Summons, shall, if practicable, be served personally on the accused by delivering
or tendering to him one of the duplicates. He is required to affix his signature on the back of the
other duplicate. Section 64 lays down that where he cannot be found by exercise of due diligence,
summons may be served by leaving one of the duplicates for him with some adult male member
of his family residing with him, and the person with whom the summons is so left shall, if so
required by the serving officer, sign a receipt therefor on the back of the other duplicate. Section
65 states that if by exercise of due diligence, service cannot be effected as provided in Sections 62
to 64, the serving officer shall affix one of the duplicates of the summons to some conspicuous
part of the house in which the accused ordinarily resides; and thereupon the Court, after making
such inquiries as it thinks fit, may either declare that the summons has been duly served or order
fresh service in such manner as it considers proper. Section 87 lays down that after recording
reasons in writing either before the issue of summons or thereafter, the Court may issue a warrant
for arrest of the accused if there is any reason to believe that he has absconded or will not obey
the summons, or where he fails to appear and the summons is proved to have been duly served in
time to admit of his appearing in accordance therewith and no reasonable excuse is offered for
such failure. If the person sought to be summoned is ordinarily residing in India, but is on a visit
to a foreign country, service can be effected as contemplated in Section 64 of the Code, if any
adult male member of his family resides with him in his house (i.e. in India). Service can also be
attempted under the first part of Section 65 of the Code by affixture to a conspicuous part of his
house in India where he ordinarily resides. If, however, the person sought to be summoned is
employed abroad, though he can be regarded as a "resident" of India, it cannot be said that he
"ordinarily resides" in his house in India. In such a case he ordinarily resides not in his house in
India, but at the place of his employment abroad. The expression "ordinarily resides" has been
used in Section 65 of the Code deliberately to strike a note of departure from the expression
"resides". In a case where the person sought to be summoned is actually working abroad, summons
cannot be served by affixture to any house in India under Section 65(1) of the Code.
The second part of Section 65 states that after making such enquiries as it thinks fit, the Court may
declare that the summons has been duly served or order fresh service in such manner as it
considers proper; this rule should be applied even in a case where a person resides abroad and
cannot be treated as a person ordinarily residing in an Indian home. A person working abroad,
during his return home on holidays or leave can be attempted to be served personally under Section
62 or by delivery to an adult male member of his family under Section 64 of the Code or by
affixture under the first part of Section 65 of the Code. But when he is on duty abroad and has
not returned home on holidays or leave, he cannot be served under Section 62 or Section 64 or
first part of Section 65 of the Code. Giving a liberal interpretation to Section 65 of the Code, I am
inclined to hold that the second part of Section 65 could be utilised by Courts for service in
contingencies where the person sought to be summoned is actually on duty abroad. Section 65
refers to "order fresh service in such manner as it considers proper". A reading of this clause will
make it clear that the statute has conferred on the Court very wide discretion of very broad import.
It is for the Court in every case to consider the circumstances obtaining in each case and decide
the proper manner of service contemplated in second part of Section 65 of the Code. In deciding
as to what is the proper manner of service under Second part of Section 65 of the Code, the Court
cannot allow itself to be fettered by the limitations found in Section 62(1) of the Code. In other
words, in ordering fresh service in such manner as it considers proper, the Court cannot take it
that service through "other public servant" or service in any other manner cannot be made in the
absence of Rules framed by the State Government. That is why, even at the outset I stated that
this limitation will apply only to service in the first instance. It cannot apply to service at later stage
covered by second part of Section 65 of the Code. The exercise of discretion under the latter part
of Section 65 of the Code must be untrammelled by the limitations contemplated in Section 62(1)
of the Code.
The officers working in the Indian Embassy abroad are certainly public servants for the purposes
of the Cr. P.C. They are persons working under the Government of India, discharging public
duties as laid down by the Government of India and receiving their emoluments out of public
funds. They can therefore be treated as public servants. In contingencies contemplated by the
second part of Section 65 of the Code, I can find no difficulty or disability for the Court to seek
the assistance of such public servants in serving summons. It cannot be said that an attempt to
serve summons through the Embassy officials will be an illegal act or an irregular act. If
circumstances would justify such a course, I find no limitation in the power of the Magistrate to
pass an order to that effect. Of course, this may not be of much assistance in an enquiry or trial in
a prosecution, because service of summons through the Embassy may not be of much practical
significance unless the accused himself responds to it and turns up before the Court. But this will
have a significant effect in at least some other areas. In a proceeding under Section 125 of the
Code, in an appropriate case the Magistrate is entitled to proceed and determine a case ex parte.
The procedure under discussion in this case would prevent embarrassment and solve many
difficulties which the Courts may have to face in the matter of service of summons in such cases.

Anoop Jacob vs Kerala

The specific case put forth by the petitioner is that the summons, alleged to have been sent through
WhatsApp to his mobile phone, had never reached him, as he has not downloaded the WhatsApp
application on his phone. Going by Section 65 of Cr.P.C, if service could not be effected as
provided under Section 62, the serving officer shall affix one of the duplicates of the summons to
the conspicuous part of the house or homestead in which the person summoned ordinarily resides.
Thereafter, the court should make such enquiries as it thinks fit and either declare the summons
to have been duly served or order fresh service in such manner as it considers proper.
The above provisions do not provide for service of summons through WhatsApp. No doubt, the
revolutionary changes in the field of communication calls for a more pragmatic approach regarding
the mode and manner of service of summons. In this regard, it may be pertinent to note the
insertion of Section 144 in the Negotiable Instruments Act (for short, 'the Act') for the purpose
of overcoming the delay in serving summons on the accused in complaints under Section 138 of
the Act. Section 144, providing for service of summons by speed post or by approved courier
service, was inserted by Act 55 of 2002. In Indian Banks Assn. v. Union of India, the Honourable
Supreme Court alerted the Magistrates about the need to adopt a pragmatic and realistic approach
while issuing process and had directed to issue summons by post as well as by email. In Meters &
Instruments (P) Ltd. v. Kanchan Mehta, the Apex Court observed that in complaints under Section
138, it may be desirable for the complainant to give his bank account number and if possible, the
email ID of the accused. In Makwana Mangaldas Tulsidas V. State of Gujarat, it has been held that
the Banks are bound to provide the requisite details by developing an information sharing
mechanism, where the Banks can share all the requisite available details of the accused, who is the
account holder, with the complainant and the Police for the purpose of execution of process.
In the case at hand, the summons is stated to have been issued through WhatsApp, which is not
an accepted mode of service. As such, the court should not have issued non-bailable warrant
against the petitioner on the assumption that he had failed to appear after receiving the summons.
Deeming petitioner to have appeared on summons. The non-bailable warrant issued against him
shall be kept in abeyance for a period of four weeks.

Raghuvansh Dewanchand Bhasin vs Maharashtra – Bom HC

Whether the respondent No. 2 could have been arrested the petitioner on the strength of a warrant
for arrest which had been already cancelled, and various other connected Issues are sought to be
raised in the petition. On the ground that the petitioner was not present in the Court, a non-bail
able warrant came to be issued against the petitioner making it returnable on 31st October, 2002,
and the said non-bailable warrant was forwarded to the Colaba Police Station for its execution.
However, on 12th August, 2002, the said warrant was cancelled by the learned Magistrate. After
verifying records at the Colaba Police Station with the help of one Police Constable Mr. Chavan,
and on perusal of the said non-bailable arrest warrant bearing No. 369 of 2002 issued on 7-8-2002
the respondent No. 2 herein, who was the Inspector of Police at Colaba Police station, directed
the constable to accompany the complainant Prem Harchandrai and to apprehend and arrest the
petitioner. Accordingly, after having identified the petitioner by the complainant and confirmed
by the petitioner himself, he was sought to be arrested by the said constable. On that occasion the
petitioner informed the constable as well as the respondent No. 2 that the warrant under which he
was sought to be arrested had already been cancelled. The respondent No. 2 thereupon tried to
contact the Public Prosecutor Mr. Tatkare, to enquire as to whether he had knowledge about the
cancellation of the said warrant. However, Mr. Tatkare could not give any information in that
regard. The petitioner was thereupon detained in the police station for some time and then was
produced before the Magistrate at about 2 p.m., thereupon he was ordered to be released.
Clearly revealed that the warrant which was issued on 7th August, 2002 against the petitioner in
Criminal Case No. 163/8/2000 was cancelled on 12th August, 2002. The power and jurisdiction
of the Court to issue appropriate warrant against an accused on his failure to attend the Court on
the date of hearing of the matter cannot be disputed. However, such a power has to be exercised
judiciously and not arbitrarily. In case, the accused fails to remain present on the date of hearing
of the matter, who had been previously either directed or called upon to remain present, certainly
a warrant can be issued to secure his presence, as the absence of accused in such circumstances
could per se reveal reluctance on his part to extend the required and expected cooperation to the
Court in speedy disposal of the matter. However, it cannot be said that merely because the accused
fails to remain present on any particular date of hearing of a criminal case, issuance of non-bailable
warrant without ascertaining cause for his absence could be said to be an act with judicious exercise
of such power. There could be various reasons for the absence of the accused on the particular
date of hearing of the matter. It could be for the reasons beyond his control that he might remain
absent for the hearing. This could be known only when the accused appears before the Court and
tenders his explanation for his absence. For that purpose, it is not necessary to issue non-bailable
warrant. In order to ensure his presence, a bailable warrant in such circumstances can certainly be
appreciated. Besides the Courts have to ascertain whether the accused is such a person, who can
be said to be of a character which is of such a nature that he is a chronic absentee or a person who
has no respect for the Courts order or Courts process.
In case of absence of advocate, who happens to be an accused person, it can hardly be believed
that advocate would not know the consequences of his absence in the Court, when he is facing
the criminal case against him. Certainly, in such a case at first instance it would be appropriate for
the Court to issue mere notice to the advocate to appear before the Court and to ascertain the
reason for his absence in case he remains absent without prior leave in that regard. Similar
approach can be in cases of educated person, who is expected to know the consequences of his
absence. By no stretch of imagination, it can be said that Court would be justified in presuming
that accused would remain absent without any justification. The Court has also to take into
consideration the traffic problems those are faced in the metropolitan city like Mumbai. In these
circumstances, we are in entire agreement with the petitioner when he submitted that non-bailable
warrant in the facts and circumstance of the case was not justified at all.
The next point which is sought to be raised by the petitioner is that when the police authorities
were informed by him that the warrant issued against him has already been cancelled, whether the
police were justified in executing the warrant and arresting the petitioner. When the petitioner
informed the police authorities that the warrant in question had already been cancelled the
petitioner was not armed with any documentary proof in that regard. Nevertheless, the police
officer to whom it was informed that the warrant had been cancelled, did try to ascertain from the
concerned APP as to whether such warrant had been cancelled. Undoubtedly once the warrant is
issued it is the duty of the police officer to execute the warrant as expeditiously as possible. But
one fails to understand the urgency which was shown in executing such warrant on a holiday.
Besides the facts disclosed in the affidavit by the Police Inspector clearly revealed that only upon
the insistence of the complainant, it was sought to be executed on holiday and this is apparent
from the affidavit filed by the respondent No. 2 himself. It was 15th August, 2002, and being a
holiday, obliviously, it was not possible for the petitioner to have the documentary proof of
cancellation of the warrant on 15th August, 2002 itself. In those circumstances, and as the
complainant had approached the police authorities only on 15th August, 2002, which was a holiday
and was insisting the execution of the warrant in spite of the fact that the petitioner had informed
the police officer that the warrant had been cancelled, it was certainly expected from the police
officer to ascertain whether the warrant had been really cancelled or not before executing such
warrant on holiday. Undoubtedly, there is no clear evidence in that regard, however, it creates
strong suspicion about the genuineness and bona fide on the part of the police to execute the
warrant on holiday in spite of petitioner insistence that the said warrant had already been cancelled.
It is pertinent to note that the petitioner appears to have been arrested in a public place, in a public
view, while he was at Radio Club at Colaba. One fails to understand the purpose and reason behind
the arrest in public place. Certainly, the petitioner could have been asked to approach the police
station on 16th August, 2002. It is not the case of the respondent that the petitioner had been in
habit of flouting the orders of the Court or the directions issued by the police authorities.
Undoubtedly, he was a practicing lawyer. The petitioner then has sought to raise a point as to
whether the Courts can at all issue any warrant called a non-ball-able warrant. Section 70(1)
provides that every warrant of arrest issued by a Court under this Code shall be in writing, signed
by the Presiding Officer of such Court and shall bear the seal of the Court, Sub-section (2) provides
that every such warrant shall remain in force until it is cancelled by the Court which issued it, or
until it is executed. Section 71(1) provides that any Court issuing a warrant for the arrest of any
person may in its discretion direct by endorsement on the warrant that, if such person executes a
bond with sufficient sureties for his attendance before the Court at a specified time and thereafter
until otherwise directed by the Court the officer to whom the warrant is directed shall take such
security and shall release such person from custody. Subsection (2) provides that the endorsement
shall state - (a) the number of sureties; (b) the amount in which they and the person for whose
arrest the warrant is issued, are to be respectively bound; (c) the time at which he is to attend
before the Court. Subsection (3) states that whenever security is taken under this section, the
officer to whom the warrant is directed shall forward the bond to the Court.
Section 70 neither speaks of bailable nor non-bailable warrant, it merely speaks of warrant of arrest.
Section 71 speaks of discretionary power of the Court to specify about the security to be taken in
case the person is to be released on his arrest pursuant to the execution of the warrant issued u/s
70, Cr.P.C. Sub-section (2) of Section 71, Cr.P.C. enumerates the endorsements which can be
made on a warrant. It cannot be disputed that all these sections and the form do not use the
expression like "non-bailable". However, said expression is used to facilitate the authorities seeking
to execute the warrant as well as the person against whom the warrant is sought to be executed to
make them aware as to the nature of the warrant that has been issued. Merely because form under
the Second Schedule nowhere uses the expression bailable or non-bailable warrant, that does not
prohibit the Courts from using the word or expression while issuing the warrant or even to make
endorsement to that effect on the warrant so issued. Any expression which is made on such
warrant for the benefit of the person against whom the warrant is issued or the persons who are
required to execute the warrant would not render the warrant to be bad in law. What is material is
that there is a power vested in the Court to issue the warrant and that power is to be exercised
judiciously depending upon the facts and circumstances of each case. Being so, merely because the
warrant discloses the expression like ''non-bailable'' and that such terminology is not to be found
in Sections 70 or 71, Cr.P.C. that itself cannot render the warrant issued against any person to be
bad in law. The argument in this regard is devoid of substance.
In the facts and circumstances as narrated above, we, therefore, find that there was no justification
for issuance of non-bailable warrant on 7th August, 2002 merely because the petitioner had
remained absent. The Magistrate could have issued either a notice or a bailable warrant depending
upon the facts revealed from the records. Once the warrant was cancelled on 12th August, 2002,
it was necessary for the Court to immediately communicate the same to the concerned Police
authority so that no inconvenience could have been caused to the person against whom the warrant
was initially issued. Once the warrant was sought to be executed on holiday and the concerned
police officer was categorically informed that the warrant had already been cancelled and the police
officer being fully aware of the circumstances and nature of the case in which warrant had been
issued, it was necessary for the police officer to ascertain and to find out whether the warrant
which was sought to be executed was still enforceable or had already been cancelled and not to
rush to execute the warrant in those circumstances and that too on a holiday. Having produced
the necessary documents confirming the cancellation of the warrant much prior to the date on
which it was sought to be enforced, it was the duty of the police officer to tender the necessary
apology to the petitioner for executing such warrant on the holiday, and the concerned officer
having failed to tender the apology it apparently shown that he had not performed his duty in the
manner he was required to perform as a responsible police officer. It is a clear case of unnecessary
interference with the liberty of a citizen.
Article 21 of our Constitution proclaims that no one shall be deprived of his liberty except in
accordance with the procedure prescribed by law.
The issuance of non-bailable warrants involves interference with personal liberty. Arrest and
imprisonment mean deprivation of the most precious right of an individual. Therefore, the Courts
have to be extremely careful before issuing non-bailable warrants. Sometimes in the larger interest
of the Public and the State it becomes absolutely imperative to curtail freedom of an individual for
a certain period, only then the non-bailable warrants would be issued.
Non-bailable warrant should be issued to bring a person to Court when summons of
bailable warrants would be unlikely to have the desired result. This could be when: it is
reasonable to believe that the person will not voluntarily appear in Court; or the police authorities
are unable to find the person to serve him with a summon; or it is considered that the person could
harm someone if not placed into custody immediately. As far as possible, if the Court is of the
opinion that a summon will suffice in getting the appearance of the accused in the Court, the
summon or the bailable warrants should be preferred. The warrants either bailable or non-bailable
should never be issued without proper scrutiny of facts and complete application of mind, due to
the extremely serious consequences and ramifications which ensue on issuance of warrants. The
Court must very carefully examine whether the Criminal Complaint or FIR has not been filed with
an oblique motive. If the accused seem to be avoiding the summons, the Court, in the second
instance should issue bailable warrant. In the third instance, when the Court is fully satisfied that
the accused is avoiding the Courts proceedings intentionally, the process of issuance of the non-
bailable warrant should be resorted to. Personal liberty is paramount; therefore, we caution Courts
at the first and second instance to refrain from issuing non-bailable warrants.
There cannot be any strait-jacket formula for issuance of warrants but as a general rule, unless an
accused is charged with the commission of an offence of a heinous crime and it is feared that he
is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-
bailable warrants should be avoided. The Court should try to maintain proper balance between
individual liberty and the interest of the public and the State while issuing non-bailable warrant.

Raghuvansh Dewanchand Bhasin vs Maharashtra – SC

Confirm HC judgement, lay down the following guidelines to be adopted in all cases where non-
bailable warrants are issued by the Courts:
(a) All the High Court shall ensure that the Subordinate Courts use printed and machine numbered
Form No.2 for issuing warrant of arrest and each such form is duly accounted for; (b) Before
authenticating, the court must ensure that complete particulars of the case are mentioned on the
warrant; (c) The presiding Judge of the court (or responsible officer specially authorized for the
purpose in case of High Courts) issuing the warrant should put his full and legible signatures on
the process, also ensuring that Court seal bearing complete particulars of the Court is prominently
endorsed thereon; (d) The Court must ensure that warrant is directed to a particular police officer
(or authority) and, unless intended to be open-ended, it must be returnable whether executed or
unexecuted, on or before the date specified therein; (e) Every Court must maintain a register (in
the format given below), in which each warrant of arrest issued must be entered chronologically
and the serial number of such entry reflected on the top right hand of the process; (f) No warrant
of arrest shall be issued without being entered in the register mentioned above and the concerned
court shall periodically check/monitor the same to confirm that every such process is always
returned to the court with due report and placed on the record of the concerned case; (g) A register
similar to the one in clause (e) supra shall be maintained at the concerned police station. The
Station House Officer of the concerned Police Station shall ensure that each warrant of arrest
issued by the Court, when received is duly entered in the said register and is formally entrusted to
a responsible officer for execution; (h) Ordinarily, the Courts should not give a long time for return
or execution of warrants, as experience has shown that warrants are prone to misuse if they remain
in control of executing agencies for long; (i) On the date fixed for the return of the warrant, the
Court must insist upon a compliance report on the action taken thereon by the Station House
Officer of the concerned Police Station or the Officer In-charge of the concerned agency; (j) The
report on such warrants must be clear, cogent and legible and duly forwarded by a superior police
officer, so as to facilitate fixing of responsibility in case of misuse; (k) In the event of warrant for
execution beyond jurisdiction of the Court issuing it, procedure laid down in Sections 78 and 79
of the Code must be strictly and scrupulously followed; and (l) In the event of cancellation of the
arrest warrant by the Court, the order cancelling warrant shall be recorded in the case file and the
register maintained. A copy thereof shall be sent to the concerned authority, requiring the process
to be returned unexecuted forthwith. The date of receipt of the unexecuted warrant will be entered
in the aforesaid registers. A copy of such order shall also be supplied to the accused.

Jugal Kishore Samra HC ruling, reversed by SC

Quotes Nandini Satpathy in context of advocate being present during interrogation.
The spirit of Article 22(1) is that it is fundamental to the rule of law that the services of a lawyer
shall be available for consultation to any accused person under circumstances of near-custodial
interrogation. Moreover, the observance of the right against self-incrimination is best promoted
by conceding to the accused the right to consult a legal practitioner of his choice. Lawyer's presence
is a constitutional claim in some circumstances in our country also, and, in the context of Article
20(3), is an assurance of awareness and observance of the right to silence. Article 20(3), and Article
22(1) may, in way, be telescoped by making it prudent for the Police to permit the Advocate of
the accused, if there be one, to be present at the time he is examined. Overreaching Article
20(3) and Section 61(2) will be obviated by this requirement. If an accused person expresses the
wish to have his lawyer by his side when his examination goes on, this facility shall not be denied,
without being exposed to the serious reproof that involuntary self-crimination secured in secrecy
and by coercing the will, was the project.
The learned Public Prosecutor representing the petitioner drew the attention of this Court to a
decision of the Supreme Court in Poolpandi's case 1992 Cri LJ 2761 (supra). In the said judgment,
the question that arose for consideration is whether the respondents accused are entitled to the
presence of their lawyers when they are questioned during the investigation under the provisions
of the Customs Act, 1962 and the Foreign Exchange Regulation Act, 1973. There is difference of
opinion between the High Courts on this issue. The Delhi High Court took a different view to the
Madras High Court. Article 20(3) declares that no person accused of any offence shall be
compelled to be a witness against himself. It does not refer to the hypothetical person who may in
the future be discovered to have been guilty of some offence. A statement from the accused was
recorded and in pursuance of the confessional statement, diamonds, pearls and jewellery was
recovered from different places. During the trial, the reliance was placed on his confessional
statement made before the customs authorities, which was objected on the ground that the same
were inadmissible in evidence inter alia in view of the provisions of Article 20(3) of the
Constitution of India. While rejecting the objection, the Supreme Court held that in order that the
guarantee against testimonial compulsion incorporated in Article 20(3) may be claimed by a
person, it has to be established that when he made the statement in question, he was a person
accused of an offence. The Supreme Court made the said observation by relying on Romesh
Chandra Mehta v. State of West Bengal . The Supreme Court after considering Nandini Satpathy's
case 1978 Cri LJ 968 (supra) and other cases observed that the FERA and the Customs Act are
pari materia and the object of the two Acts is also similar, therefore, the Appeal has to be allowed
against the judgment of the Delhi High Court permitting the interrogation of the accused in the
presence of their lawyer.

Therefore, in the light of the above decision, the learned Public Prosecutor representing the
petitioner submitted that the respondent shall not be permitted to have his Advocate present
during the course of interrogation.

In the present case, on account of the apprehension of the respondent, the lower Court permitted
the Advocate to be present during the course of interrogation. But the Advocate was directed not
to interfere during the course of interrogation. The purpose of the respondent requesting the
presence of the Advocate is only on account of the apprehension that the Investigating Officers
are likely to apply third degree methods like physical assault etc., therefore, the learned Sessions
Judge passed the impugned order. 10. It is an undisputed fact that the application of third-degree
method to the accused is prohibited and interrogation of the accused is a right provided to the
Investigating Officer to elicit certain information regarding the commission of the offence.
Though the Advocate was permitted to be present during the course of interrogation, he was
prevented from interference during the course of interrogation. When the police do not resort to
apply third degree methods, there cannot be any problem for them to interrogate the respondent
to elicit necessary information relating to the above crime in the presence of his Advocate. 11.
After considering the above aspects, I am of the view that the order passed by the learned Sessions
Judge is in no way affecting the right of the Investigating Officer to interrogate the respondent in
the presence of his Advocate therefore, I do not find any merits in this Revision Case.

Jugal Kishore Samra SC ruling

Stans the Nandini Satpathy judgement and quotes 3 issues-
"1. Is a person likely to be accused of crimes i.e. a suspect accused, entitled to the sanctuary of
silence as one 'accused of any offence'? Is it sufficient that he is a potential-of course, not distant-
candidate for accusation by the police? 3. Does the constitutional shield of silence swing into action
only in court or can it barricade the 'accused' against incriminating interrogation at the stages of
police investigation? 7. Does 'any person' in Section 161 Criminal Procedure Code include an
accused person or only a witness?"
"57. We hold that Section 161 enables the police to examine the accused during investigation. The prohibitive sweep
of Article 20(3) goes back to the stage of police interrogation-not, as contended, commencing in court only. In our
judgment, the provisions of Article 20(3) and Section 161(1) substantially cover the same area, so far as police
investigations are concerned. The ban on self-accusation and the right to silence, while one investigation or trial is
under way, goes beyond that case and protects the accused in regard to other offences pending or imminent, which may
deter him from voluntary disclosure of criminatory matter. We are disposed to read 'compelled testimony' as evidence
procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental
coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like-not legal penalty for
violation. So, the legal perils following upon refusal to answer, or answer truthfully, cannot be regarded as compulsion
within the meaning of Article 20(3). The prospect of prosecution may lead to legal tension in the exercise of a
constitutional right, but then, a stance of silence is running a calculated risk. On the other hand, if there is any mode
of pressure, subtle or crude, mental or physical, direct or indirect, but sufficiently substantial, applied by the policeman
for obtaining information from an accused strongly suggestive of guilt, it becomes 'compelled testimony', violative of
Article 20(3)."
"61. It may not be sufficient merely to state the rules of jurisprudence in a branch like this. The man who has to
work it is the average police head constable in the Indian countryside. The man who has to defend himself with the
constitutional shield is the little individual, by and large. The place where these principles have to have play is the
unpleasant police station, unused to constitutional nuances and habituated toother strategies. Naturally, practical
points which lend themselves to adoption without much sophistication must be indicated if this judgment is to have
full social relevance. In this perspective we address ourselves to the further task of concretising guidelines. 62. Right
at the beginning we must notice Article 22(1) of the Constitution, which reads: 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. The right to consult an advocate of his
choice shall not be denied to any person who is arrested. This does not mean that persons who are not under arrest
or custody can be denied that right. The spirit and sense of Article 22(1) is that it is fundamental to the rule of law
that the services of a lawyer shall be available for consultation to any accused person under circumstances of near
custodial interrogation. Moreover, the observance of the right against self-incrimination is best promoted by conceding
to the accused the right to consult a- legal practitioner of his choice. 63. Lawyer's presence is a constitutional claim
in some circumstances in our country also, and, in the context of Article 20(3), is an assurance of awareness and
observance of the right to silence. The Miranda decision has insisted that if an accused person asks for lawyer's
assistance, at the stage of interrogation, it shall be granted before commencing or continuing with the questioning. We
think that Article 20(3) and Article 22(1) may, in a way, be telescoped by making it prudent for the police to
permit the advocate of the accused, if there be one, to be present at the time he is examined. Overreaching Article
20(3) and Section 161(2) will be obviated by this requirement. We do not lay down that the police must secure the
services of a lawyer. That will lead to `police-station-lawyer' system, an abuse which breeds other vices. But all that
we mean is that if an accused person expresses the wish to have his lawyer by his side when his examination goes on,
this facility shall not be denied, without being exposed to the serious reproof that involuntary self-crimination secured
in secrecy and by coercing the will, was the project. 64. Not that a lawyer's presence is a panacea for all problems of
involuntary self-crimination, for he cannot supply answers or whisper hints or otherwise interfere with the course of
questioning except to intercept where intimidatory tactics are tried, caution his client where incrimination is attempted
and insist on questions and answers being noted where objections are not otherwise fully appreciated. He cannot
harangue the police but may help his client and complain on his behalf, although his very presence will ordinarily
remove the implicit menace of a police station. 65. We realize that the presence of a lawyer is asking for the moon
in many cases until a public defender system becomes ubiquitous. The police need not wait for more than for a
reasonable while for an advocate's arrival. But they must invariably warn -and record that fact- about the right to
silence against self-incrimination; and where the accused is literate take his written acknowledgment."
Discusses other caselaws, mainly the Poolpandi caselaw as follows:
"10....We do not share the apprehension as expressed above in the minority judgment in connection with enquiry
and investigation under the Customs Act and other similar statutes of our country. There is no question of whisking
away the persons concerned in these cases before us for secret interrogation, and there is no reason for us to impute
the motive of preparing the groundwork of false cases for securing conviction of innocent persons, to the officers of the
state duly engaged in performing their duty of prevention and detection of economic crimes and recovering
misappropriated money justly belonging to the public. Reference was also made to the observation in the judgment in
Carlos Garza De Luna, Appt. v. United States, American Law Reports 3d 969, setting out the historical
background of the right of silence of an accused in a criminal case. Mr. Salve has relied upon the opinion of Wisdom,
Circuit Judge, that the history of development of the right of silence is a history of accretions, not of an avulsion and
the line of growth in the course of time discloses the expanding conception of the right than its restricted application.
The Judge was fair enough to discuss the other point of view espoused by the great jurists of both sides of Atlantic
before expressing his opinion. In any event we are not concerned with the right of an accused in a criminal case and
the decision is, therefore, not relevant at all. The facts as emerging from the judgment indicate that narcotics were
thrown from a car carrying the two persons accused in the case. One of the accused persons testified at the trial and
his counsel in argument to the jury made adverse comments on the failure of the other accused to go to the witness
box. The first accused was acquitted and the second accused was convicted. The question of the right of silence of the
accused came up for consideration in this set up. In the cases before us the persons concerned are not accused and we
do not find any justification for "expanding" the right reserved by the Constitution of India in favour of accused
persons to be enjoyed by others."
Reversed HC ruling, and stated Strictly speaking the aforesaid direction does not apply to the case
of the respondent, because he being on bail cannot be described as an arrestee. But, it is stated on
behalf of the respondent that he suffers from heart disease and on going to the DRI office, in
pursuance to the summons issued by the authorities, he had suffered a heart attack. It is also alleged
that his brother was subjected to torture and the respondent himself was threatened with third
degree methods. The medical condition of the respondent was accepted by the Metropolitan
Sessions Judge and that forms one of the grounds for grant of anticipatory bail to him. Taking a
cue, therefore, from the direction made in DK Basu and having regard to the special facts and
circumstances of the case, we deem it appropriate to direct that the interrogation of the respondent
may be held within the sight of his advocate or any other person duly authorized by him. The
advocate or the person authorized by the respondent may watch the proceedings from a distance
or from beyond a glass partition but he will not be within the hearing distance and it will not be
open to the respondent to have consultations with him in course of the interrogation.

CA-Midterms

In Re: Enforcement Directorate case

The Enforcement Directorate through its Assistant Director has filed the instant criminal revision
challenging the legality, validity and propriety of the order dated 21 October, 2022 on the following
grounds:— 1) The learned Chief Metropolitan Magistrate acted illegally and with material
irregularity in allowing the learned Advocate for the opposite party/accused to all along remain
present at the time of investigation, rendering the process of investigation absolutely baseless and
irrelevant; 2) The learned Magistrate while issuing a direction upon the investigating officer to
arrange for medical examination of the opposite party/accused during his custody with the
Enforcement Directorate every 24 hours did not follow the guidelines in D.K. Basu's case.

“41D. Right of arrested person to meet an advocate of his choice during interrogation.- When any person is arrested
and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not
throughout interrogation.”
It is submitted by the learned Advocate for the petitioner that the learned Magistrate failed to
appreciate the difference between the accused person's entitlement to meet an advocate of his
choice during interrogation and giving unfettered authority to the learned Advocate for the
accused/opposite party to remain present in course of investigation and interrogation of the
accused/opposite party. If the learned advocate for the accused/opposite party is allowed to
remain present throughout the interrogation of the accused, the interrogation would be not only
fruitless but also rendering such process into a baseless, formal compliance. Presence of the
learned advocate for the accused/opposite party during interrogation will also reveal the course
and direction of investigation to others. Therefore, in view of the said direction, the investigating
officer of the Enforcement Directorate has not been able to interrogate the accused till date. It is
pointed out by the learned Advocate for the petitioner that previously the same learned Magistrate
had passed the similar order in connection with another case against which the Enforcement
Directorate was compelled to file a revision being CRR 2665 of 2022 (Enforcement Directorate
v. Partha Chatterjee) and this Court vide order dated 24 July, 2022 held that such direction
permitting presence of the learned advocate for the accused during investigation of the accused
suffers from patent illegality and the same was set aside. The learned Advocate for the petitioner
invites this Court to pass similar order in the instant revision.
It is needless to say that Section 41D of the Code of Criminal Procedure was inserted in the statute
by Amending Act 5 of 2009 with effect from 1 November, 2010. The purpose and object of
introduction of Section 41D of the Cr. P. C. is to ensure fundamental right of a citizen enshrined
in Article 21 of the Constitution of India. Such liberty of individuals cannot be curtailed likely. At
the same time, it is the duty of the Court to strike a balance between the right of a citizen for being
represented by an advocate during investigation and trial and the power of the investigating agency
to carry on proper investigation to unearth the truth and collect evidence against the perpetrator
of a crime punishable under any penal provision of the statute. 16. Therefore, Section 41D of the
Code of Criminal Procedure protects an accused during interrogation entitling him to meet an
advocate of his choice. It does not mean that the advocate of the choice will be permitted to be
present in course of his entire interrogation

Niranjan Singh & Anr vs Prabhakar Rajaram

Encounter killing happened, some police officers were the accused, Petitioner was brother of
deceased.
Held – 1. Custody, in the context of section 439 Cr.P.C. is physical control or at least physical
presence of the accused in court coupled with submission to the jurisdiction and orders of the
court. He can be in custody not merely when the police arrests him, produces him before a
Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody
when he surrenders before the court and submits to its directions. This word is of elastic semantics
but its core meaning is that the law has taken control of the person.
2. A responsible Government, responsive to appearances of justice, would have placed
police officers against whom serious charges had been framed by a criminal court, under
 suspension unless exceptional circumstances suggesting a contrary course exist. A gesture
of justice to courts of justice is the least that a government owes to the governed.
3. Detailed examination of the evidence and elaborate documentation of the merits should
be avoided while passing orders on bail applications. No party should have the impression
that his case has been prejudiced. To be satisfied about a prima facie case is needed but it
is not the same as an exhaustive exploration of the merits in the order itself.
4. Grant of bail is within the jurisdiction of the Sessions Judge but the court must not, in
grave cases, gullibly dismiss the possibility of police-accused intimidating the witnesses
with cavalier ease. Intimidation by policemen, when they are themselves accused of
offences, is not an unknown phenomenon.

State Of Haryana & Ors vs Dinesh Kumar

One of the common questions which, therefore, need to be answered in both these appeals is
whether the manner in which they had appeared before the Magistrate and had been released
without being taken into formal custody, could amount to arrest.
Of the said decisions, the one in which the meaning of the two expressions arrest and custody
have been considered in detail is that of the Full Bench of the Madras High Court in Roshan
Beevi’s case. In such context the Full Bench of the Madras High Court returned a finding that
custody and arrest are not synonymous terms and observed that it is true that in every arrest there
is a custody but not vice-versa. A custody may amount to arrest in certain cases, but not in all
cases. It is in the aforesaid circumstances that the Full Bench came to the conclusion that a person
who is taken by the Customs Officer either for the purpose of enquiry or interrogation or
investigation cannot be held to have come into the custody and detention of the Customs Officer
and he cannot be deemed to have been arrested from the moment he was taken into custody.
“6. From the various definitions which we have extracted above, it is clear that the word arrest when used in its
ordinary and natural sense, means the apprehension or restraint or the deprivation of one’s personal liberty. The
question whether the person is under arrest or not, depends not on the legality of the arrest, but on whether he has
been deprived of his personal liberty to go where he pleases. When used in the legal sense in the procedure connected
with criminal offences, an arrest consists in the taking into custody of another person under authority empowered by
law, for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of a
criminal offence. The essential elements to constitute an arrest in the above sense are that there must be an intent to
arrest under the authority, accompanied by a seizure or detention of the person in the manner known to law, which
is so understood by the person arrested. In this connection, a debatable question that arises for our consideration is
whether the mere taking into custody of a person by an authority empowered to arrest would amount to arrest of that
person and whether the terms arrest and custody are synonymous.”
Reiterates Niranjan Singh case and affirms it, and says we are unable to appreciate the Madras HC
ruling of Roshan Beevi – “When is a person in custody, within the meaning of S. 439 Cr. P.C.? When he is,
in duress either because he is held by the investigating agency or other police or allied authority or is under the control
of the court having been remanded by judicial order, or having offered himself to the courts jurisdiction and submitted
to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic
conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is
in custody for the purpose of S.439.”
Custody, in the context of S.439, (we are not, be noted, dealing with anticipatory bail under Se.438)
is physical control or at least physical presence of the accused in court coupled with submission to
the jurisdiction and order of the court.
It is no doubt true that in the instant case the accused persons had appeared before the concerned
Magistrates with their learned advocates and on applying for bail were granted bail without being
taken into formal custody, which appears to have swayed one of the benches of the Punjab and
Haryana High Court to take a liberal view and to hold that no arrest had actually been effected.
The said view, in our opinion, is incorrect as it goes against the very grain of Sections 46 and 439
of the Code. The interpretation of arrest and custody rendered by the Full Bench in Roshan Beevis
case (supra) may be relevant in the context of Sections 107 and 108 of the Customs Act where
summons in respect of an enquiry may amount to custody but not to arrest, but such custody
could subsequently materialize into arrest. The position is different as far as proceedings in the
court are concerned in relation to enquiry into offences under the Indian Penal Code and other
criminal enactments. In the latter set of cases, in order to obtain the benefit of bail an accused has
to surrender to the custody of the Court or the police authorities before he can be granted the
benefit thereunder.

M. P. Sharma And Others vs Satish Chandra

Search and seizure of documents under ss. 94 and 96 of the Code of Criminal Procedure Whether
compelled production thereof--Within the meaning of art. 20(3).
Held, that the provision for the search warrant under the first alternative of a. 96(1) of the Code
of Criminal Procedure does not offend art. 19(1)(f) of the Constitution. A search and seizure is
only a temporary interference with the right to hold the property searched and the articles seized.
Statutory recognition in this behalf is a necessary and reasonable restriction and cannot per se be
considered to be unconstitutional. A compelled production of incriminating documents by a
person against whom a First Information Report has been made is testimonial compulsion within
the meaning of art. 20(3) of the Constitution. But a search and seizure of a document under the
provisions of as. 94 and 96 of the Code of Criminal Procedure is not a compelled production
thereof within the meaning of art. 20 (3) and hence does not offend the said Article. A power of
search and seizure is, in any system of jurisprudence, an overriding power of the State for the
protection of social security and that power is necessarily regulated by law. When the Constitution
makers have thought fit not to subject such regulation to constitutional limitations by recognition
of the fundamental right to privacy, analogous to the American Fourth Amendment, there is no
justification for importing into it, a totally different fundamental right by some process of strained
construction.
The fundamental guarantee in article 20(3) comprehends within its scope not merely oral testimony
given by an accused in a criminal case pending against him, but also evidence of whatever character
compelled out of a person who is or is likely to become incriminated thereby as an accused. It,
therefore, extends not only to compelled production of documents by an accused from his
possession, but also to such compelled production of oral or documentary evidence from any-
other person who may become incriminated thereby as an accused in future proceedings. If this
view of the content of article 20(3) is accepted, the next step in the argument presented is that a
forcible search and seizure of documents is, for purposes of constitutional protection of this
guarantee, on the same footing as a compelled production of the said documents by the person
from whom they are seized.
Analysing the terms in which this right has been declared in our Constitution, it may be said to
consist of the following components. (1) It is a right pertaining to a person " accused of an offence
(2) It is a protection against compulsion to be a witness"; and (3) It is a protection against such
compulsion resulting in his giving evidence " against himself "
A person can " be a witness " not merely by giving oral evidence but also. by producing documents
or making intelligible gestures as in the case of a dumb witness (see section 119 of the Evidence
Act) or the like. " To be a witness " is nothing more than " to furnish evidence ", and such evidence
can be furnished through the lips or by production of a thing or of a document or in other modes.
So far as production of documents is concerned, no doubt section 139 of the Evidence Act says
that a person producing a document on summons is not a witness. But that section is meant to
regulate the right of cross-examination. It is not a guide to the connotation of the word " witness",
which must 'be understood in its natural sense, i.e., as referring to a person who furnishes evidence.
The phrase used in article 20(3) is "to be a witness" and not to "appear as a witness": It follows
that the protection afforded to an accused in so far as it is related to the phrase "to be a witness'
is not merely in respect of testimonial compulsion in the court room but may well extend to
compelled testimony previously obtained from him. It is available therefore to a person against
whom a formal accusation relating to the commission of an offence has been levelled which in the
normal' course may result in prosecution.
It is pointed out that the procedure contemplated is that normally there should be a summons or
notice for production under section 94 and it is only if there is no compliance therewith or if the
Magistrate is satisfied about the likelihood of non-compliance that a search warrant is to be issued.
It is, therefore, urged that these provisions themselves show that in law search and seizure is a
substitute for compelled production on summons. A notice to produce is addressed to the party ,
concerned and his production in compliance Therewith constitutes a testimonial act by him within
the' meaning of article 20(3) as above explained. But search warrant is addressed to an officer of
the Government, generally a police officer. Neither the search nor the seizure are 'acts of the
occupier of the searched premises. They are acts of another to which he is obliged to submit and
are, therefore, not his testimonial acts in any sense. It is to be remembered that searches of the
kind we are concerned with are' under the authority of a Magistrate (excepting,in the limited class
of cases falling under section 165 of the Criminal Procedure Code). Therefore, issue of a search
war- rant is normally the judicial function of the Magistrate. When such judicial function is
interposed between the individual and the officer's authority for search, no circumvention thereby
of the fundamental right is to be assumed. We are not unaware that in the present set up of the
Magistracy in this country, it is not infrequently that the exercise of this judicial function is liable
to serious error, as is alleged in the present case. But the existence of scope for such occasional
error is no ground to assume circumvention of the constitutional guarantee. We are, therefore,
clearly of the opinion that the searches with which we are concerned in the present cases cannot
be challenged as illegal on the ground of violation of any fundamental rights and.that these
applications are liable to be dismissed.

The State Of Bombay vs Kathi Kalu Oghad

Testimonial Compulsion Obtaining specimen writing and thumb impression from accused-
Statement of accused in Police custody used in evidence-If contravene constitutional guarantee
Constitution of India, Art. 20(3).
Section 73 of the Indian Evidence Act empowers the court to, obtain specimen writing or signature
and finger impressions of an accused person for purposes of Comparison. Sections 5 and 6 of the
Identification of Prisoners Act empower a Magistrate to obtain the photograph or measurements
of an accused person. Section 27 of the Indian Evidence Act permits the reception in evidence of
statements made by an accused person in police custody which lead to a discovery. It was
contended by the accused persons that the obtaining of evidence in any of these ways amounted
to compelling the person accused of an offence "to be a witness against himself" in contravention
of Art. 20(3) of the Constitution. It was further contended that it 'was implicitly the fact that the
accused was in police custody when' the specimen signatures or thumb impressions etc. were
obtained that compulsion was used. Held, that there was no infringement of Art. 20(3) of the
Constitution in compelling an accused person to give his specimen handwriting or signature, or
impressions of his thumb, fingers, palm or foot to the investigating officer or under orders of a
court for the purposes of comparison. Held, further, that the provisions of s. 27 of the Indian
Evidence Act did not offend Art. 20(3) unless compulsion was used in obtaining the information.
Compulsion was not inherent in the receipt of information from an accused person in the custody
of a lice officer; it will be a question of fact in each case to be determined by the court on the
evidence before it whether compulsion had been used in obtaining the information.

Per Sinha, C.J., Imam, Gajendragadkar, Subba Rao, Wanchoo, Raghubar Dayal, Rajagopala
Ayyangar and Mudholkar, jj. -> The correct position with respect to the guarantee under Art. 20(3)
is that- (i) the guarantee includes not only oral testimony given in court or out of court but also
statements in writing which incriminate the maker when figuring as an accused person; (ii) the
words "to be a witness" in Art.. 20(3) do not include the giving of thumb impression or impression
of palm, foot or fingers or specimen writing or exposing a part of the body by an accused person
for identification; (iii) "self-incrimination" means conveying information based upon the personal
knowledge of the given and does not include the mere mechanical process of producing
documents in court which do not contain' any statement of the accused based on his personal
knowledge; (iv) in order to come within the prohibition of Art. 20(3) the testimony must be of
such a character that by itself it should have the, tendency to incriminate the accused; and (V) to
avail of the protection of Art. 20(3) the person must have stood in the character of an accused
person at the time he made the statement.

Per S. K. Das, Sarkar and Das Gupta, JJ.- (i) The protection afforded by Art. 20(3) is not merely
in respect of testimonial compulsion in the court room but extends also to compelled testimony
previously obtained from the accused. (ii) The words "to be a witness" in Art. 20(3) mean,, to
furnish evidence" and cannot be confined to imparting personal knowledge; such evidence can be
furnished through lips or by production of a thing or of a document or in other modes. (iii) An
accused person furnishes evidence when he gives his specimen handwriting or impressions of his
fingers or palm or foot. (iv) But in doing so the accused does not furnish evidence against himself
as by themselves these specimens or impressions do not incriminate or even tend to incriminate
the accused and he cannot be said to be compelled "to be a witness against himself " when he is
compelled to give the specimen or impression.

View on MP Sharma case - After having heard elaborate arguments for and against the views thus
expressed by this Court after full deliberation, we do not find any good reasons for departing from
those views. But the Court went on to observe that "'to be a witness" means "to furnish evidence"
and includes not only oral testimony or statements in writing of the accused but also production
of a thing or of evidence by other modes. It may be that this Court did not intend to lay down-
certainly it was not under discussion of the Court as a point directly arising for decision -that calling
upon a person accused of an offence to give his thumb impression, his impression of palm or
fingers or of sample handwriting or signature comes within the ambit of ",to be a witness" which
has been equated to "to furnish evidence". Whether or not this Court intended to lay down the
rule of law in those wide terms has been the subject matter of decisions, in the different High
Courts in this country. The most recent decision brought to our attention is from a Full Bench of
the Kerala High Court in the case of State of Kerala v. K.K. Sankaran Nair. In this case, Chief
Justice Ansari examined various High Court pronouncements and concluded that the Supreme
Court's decision in Sharma's Case also applies to cases involving a specimen handwriting given by
an accused person under compulsion. "To be a witness" may be equivalent to "furnishing
evidence" in the sense of making oral or written statements, but not in the larger sense of the
expression so as to include giving of thumb impression or impression of palm or foot or fingers
or specimen writing or exposing a part of the body by an accused person for purpose of
identification.
The concept of "furnishing evidence" in the broader sense might not have been intended by the
Constitution-makers, as they aimed to safeguard accused individuals from self-incrimination
without hindering effective criminal investigations. Obtaining impressions or body parts from an
accused person is often necessary for crime investigation. The Constitution-makers likely
considered existing laws such as Section 73 of the Evidence Act and Sections 5 and 6 of the
Identification of Prisoners Act (XXXIII of 1920). Section 5 empowers a Magistrate to order
measurements or photographs for investigative purposes, while Section 6 allows the use of
necessary means if resistance occurs. Additionally, Section 73 of the Evidence Act permits the
court to authorize the collection of finger impressions, specimen handwriting, or signatures for
comparison if deemed necessary.
The matter maybe looked at from another point of view. The giving of finger impression or of
specimen signature or of handwriting, strictly speaking, is not ",to be a witness". "To be a witness"
means imparting knowledge in respect of relevant fact, by means of oral statements or statements
in writing, by a person who has personal knowledge of the facts to be communicated to a court or
to a person holding an enquiry or investigation. A person is said to be a witness, to a certain state
of facts which has to be determined by a court or authority authorised to come to a decision, by
testifying to what he has seen, or something he has heard which is capable of being heard and is
not hit by the rule excluding hearsay or giving his opinion, as an expert, in respect of matters in
controversy. Evidence has been classified by text writers into three categories, namely, (1) oral
testimony; (2) evidence furnished by documents; and (3) material evidence.
We have already indicated that we are in agreement with the Full Court decision in Sharma's case
(1) that the prohibition in cl.(3) of Art.20 covers not only oral testimony given by a person accused
of an offence but also his written statements which may have a bearing on the controversy with
reference to the charge against him. The accused may have documentary evidence in his possession
which may throw some light on the controversy. If it is a document, which is not his statement
conveying his personal knowledge relating to the charge against him, he may be called upon by
the' Court to produce that document in accordance. with the provisions of s.139 of the Evidence
Act, which, in terms, provides that a person may be summoned to produce a document in his
possession and that he does not become a witness by the mere fact that he has produced it; and
therefore, cannot be cross-examined. Of course, he can be cross-examined if he is called as a
witness who has made statements conveying his personal knowledge by reference to the contents
of the document or if he his given his statements in Court otherwise than by reference to the
contents of the documents. In our opinion, therefore, the observations of this Court in Sharma's
case(,) that s.139 of the Evidence Act has no bearing on the connotation of the word 'witness' is
not entirely well- founded in law. It is well-established that cl.(3) of Art.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. For example, the accused person may be in possession of a document which is in his
writing or which contains his signature or his thumb impression. The production of such a
document, with a view to comparison of the writing or the signature or the impression, is not the
statement of an accused person, which can be said to be of the nature of a personal testimony.
When an accused person is called upon by the Court or any other authority holding an investigation
to give his finger impression or signature or a specimen of his handwriting, he is not giving any
testimony of the nature of a 'personal testimony'. The giving of a "personal testimony' must depend
upon his volition. He can make any kind of statement or may refuse to make any statement. But
his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by
dissimulation cannot, change their intrinsic character. Thus, the giving of finger impressions or of
specimen writing or of signatures by an accused person, though it may amount to furnishing
evidence in the larger sense, is not included within the expression to be a witness'.

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'.
The information given by an accused person to,, a police. officer leading to the discovery of a fact
which may or may not prove incriminatory has been made admissible in evidence by that Section.
If it is not incriminatory of the person giving the information, the question does not arise. It can
arise only when it is of an incriminatory character so far as the giver of the information is
concerned. If the self- incriminatory information has been given by an accused person without any
threat, that will be admissible in evidence and that will not be hit by the provisions of el. (3) of Art.
20 of the Constitution for the reason that there has been no compulsion. It must, therefore, be
held that the provisions of s. 27 of the Evidence Act are not within the prohibition aforesaid,
unless compulsion has been used in obtaining the information. In this connection the question
was raised before us that in order to bring the case within the prohibition of cl. (3) of Art. 20, it is
not necessary that the statement should have been made by the accused person at a time when he
fulfilled that character ; it is enough that he should have been an accused person at the time when
the statement was sought to be proved in Court, even though he may not have been an accused
person at the time he had made that statement. The correctness of the decision of the Constitution
Bench of this Court in the case of Mohamed Dastagir v. The State of Madras (1) was questioned
because it was said that it ran counter to the observations of the Full Court in Sharma's Case. (2)
In the Full Court decision of this Court this question did not directly arise ; nor was it decided. On
the other hand, this Court, in Sharma's case(2), held that the protection under Art. 20 (3) of the
Constitution is available to a person against whom a formal accusation had been levelled, inasmuch
as a First Information Report had been lodged against him. Sharma's case (2), therefore, 'did not
decide anything to the contrary of what this Court said in Mohamed Dastagir v. The State of
Madras.

In order to bring the evidence within the inhibitions of cl. (3) of Art. 20 it must be shown not only
that the person making the statement was an accused at the time, he made it and that it had a
material bearing on the criminality of the maker of the statement, but also that be was compelled
to make that statement. "Compulsion' in the context, must mean what in law is called 'duress'. The
compulsion in this sense is a physical objective act and not the state of mind of the person making
the statement, except where the mind has been so conditioned by some extraneous process as to
render the making of the statement involuntary and, therefore, extorted. Hence, the mere asking
by a police officer investigating a crime against a certain individual to do a certain thing is not
compulsion within the meaning of Art. 20 (3). Hence, the mere fact- that the accused person, when
he made the statement in question was in police custody would not, by itself, be the foundation
for an inference of law that the accused was compelled to make the statement. Of course, it is
open to an accused person to show that while he was in police custody at the relevant time, he was
subjected to treatment which, in the circumstances of the case, would lend itself to the inference
that corapulsion was, in fact, exercised. In other words, it will be a question of fact in each case to
be determined by the Court on weighing the facts and circumstances disclosed in the evidence
before it'.

Conclusions - (1) An accused person cannot be said to have been compelled to be a witness against himself simply
because he made a statement while in police custody, without anything more.' In other words, the mere fact of being
in police custody at the time when the statement in question was 'made would not., by itself, as a proposition of law,
lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with
other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether
or not the accused person had been compelled to make the impugned statement. (2) The mere questioning of an
accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be
incriminatory, is not compulsion'. (3) To be a witness' is not equivalent to garnishing evidence' in its widest
significance ; that is to say, as including not merely making of oral or written statements but also production of
documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused. (4)
Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body
by way of identification were not included in the expression to be a witness (5) 'To be a witness' means imparting
knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or
otherwise. (6) 'To be a witness' in its ordinary grammatical sense means giving oral testimony in Court. Case law
has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely,
bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing. (7) To bring the
statement in question within the prohibition of Art. 20(3), the person accused must have stood in the character of
an accused person At the time he made the statement. It is not enough that he should become an accused, any time
after the statement has been made.

Minority Opinion – Concurs with majority opinion with a separate approach with following
reasons - The complaint against the interpretation given in Sharma's Case is that it does not solve
the problem as to what the words "to be a witness mean; but merely postpones the difficulty, of
solving it by substituting the words "to furnish evidence" for the words, "to be a witness". It throws
no light. it is said, on what is "furnishing evidence", and unless that is clear, little is gained by saying
that "to be a witness" is to "furnish evidence".
As was pointed out in Sharma's Case(1) the phrase used in Art. 20(3) is "to be a witness" and not
"to appear as a witness". That by itself justifies the conclusion "that the protection afforded to an
accused in so far as it is related to the phrase "to be a witness" is not merely in respect of testimonial
compulsion in the court room but may well extend to compelled testimony previously obtained
from him". The contention that the protection afforded by Art. 20(3) is limited to the stage of trial
must therefore be rejected. That brings us to the suggestion that the expression "to be a witness"
must be limited to a statement whether oral or in writing by an accused person imparting
knowledge of relevant facts; but that mere production of some material evidence, whether docum
entary or otherwise would not come within the ambit of this expression. This suggestion has found
favour with the majority of the Bench; we think however that this. is an unduly narrow
interpretation. We have to remind ourselves that while on the one hand we 'should bear in mind
that the Constitution-makers could not have intended to stifle legitimate modes of investigation
we have to remember further that quite clearly they thought that certain things should not be
allowed to be done, during the investigation, or trial, however helpful they might seem to be to
the unfolding of truth and an unnecessary apprehension of disaster to, the police system and the
administration of justice, should not deter us from giving the words their proper meaning. it.
appears to us that to limit the meaning of the words "to be a witness" in Art. 20(3) in the manner
suggested would result in allowing compulsion to be used in procuring the production from the
accused of a large number of documents, which are of evidentiary value, sometimes even more so
than any oral statement of a witness might be. Suppose, for example, an accused person has in his
possession, a letter written to him by an alleged co-conspirator in reference to their common
intention in connection with the conspiracy for committing a particular offence. Under s. 10 of
the Evidence Act this document is the relevant fact as against the accused himself for the purpose
of proving the existence of the conspiracy and also for the purpose of showing that any such
person was a party to it. By producing this, the accused will not be imparting, any personal
knowledge of facts; yet it would certainly be giving evidence of a relevant fact. Again, the
possession by an accused of the plan of a house where burglary has taken place would be a relevant
fact under s.8 of the Evidence Act as showing preparation for committing theft. By producing this
plan is he not giving evidence against himself?
The illustrations we have given above show clearly that it is not only by imparting of his knowledge
that an accused person assists the proving of a fact; he can do so even by other means.,- such as
the production of documents which though not containing his own knowledge would have a
tendency to make probable the existence of a fact in issue or a relevant fact.
Of all these dangers the Constitution-makers were clearly well aware and it was to avoid them that
Art. 20 (3) was put in the Constitution, It is obvious however that these dangers remain the same
whether the evidence which the accused is compelled to furnish is in the form of statements, oral
or written about his own knowledge or in the shape of documents or things, which though not
trans- mitting knowledge of the accused person directly helps the Court to come to a conclusion
against him. If production of such documents, or things is giving evidence, then the person
producing it is being a witness, on what principle or reason can it be said that, this does not amount
to '-being a witness" within the meaning of Art. 20 (3)? We find none.
The question then is: Is an accused person furnishing evidence when he. is giving his specimen
handwriting or impressions of his fingers, or palm or foot ? It appears to us that he is : For, these
are relevent. facts, within the meaning of s. 9 and a. 11 of the Evidence Act. Just as an accused
person is furnishing evidence and by doing so, is being a witness, when he makes a statement that
he did something, or saw something, so also he is giving evidence and so is being a "witness",
when he produces a letter the contents of which are relevant under s.10., or is, producing the plan
of a house where a burglary has been committed or is giving his specimen handwriting or
impressions of his finger, palm or foot. It has to be noticed however that Art. 20 (3) 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 9 The answer to this must, in our opinion, be in the
negative. The matter becomes clear, when we contrast the giving of such handwriting or
impressions, with say, the production of a letter admissible in evidence under s. 10, or the
production of the plan of a burgled house. In either of these two latter cases, the evidence given
tends by. itself to incriminate the accused person. But 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.
We agree therefore with the conclusion reached by the majority of the Bench that there is no
infringement of Art.20(3) of the Constitution by compelling an accused person to give his
specimen handwriting or signature; or impressions of his fingers, palm or foot to the investigating
officer or under orders of a court for the purpose of comparison under the provisions of s.73 of
the Indian Evidence Act; though we have not been able to agree with the view of our learned
brethren that ,to be a witness" in Art.20(3) should be 'equated with the imparting of personal
knowledge or that an accused does not become a witness when he produces some document not
in his own hand- writing even though it may tend to prove facts in issue or relevant facts against
him. A further question as regards the validity of s.27 of the Evidence Act was raised. It was said
that the receipt of information from an accused person in the custody of a police officer which
can be proved under s.27 is an infringement of Art.20(3). Section 27 provides that when any fact
is deposed to as discovered in consequence of Information received from a person accused of any
offence, in the custody, of a police officer, so much of the information, whether it amounts to a
confession or not, as relates distinctly to the fact thereby discovered, may be proved. It cannot be
disputed that by giving such information the accused furnishes evidence and therefore is a
"witness" during the investigation. Unless however he is "'compelled" to give the information he
cannot be said to be "compelled" to be a witness; and so Art. 20(3) is not infringed. Compulsion
is not however inherent in the receipt of information from an accused person in the custody of a
police officer. There may be cases where an accused in custody is compelled to give the
information later on sought to be proved under s.27. There will be other cases where the accused
gives the information without any compulsion. Where the accused is compelled to give
information it will be an infringement of Art. 20(3); but there is no such infringement where he
gives the information without any compulsion.
Shyamlal Mohanlal vs State of Gujarat
An application under s. 94(1) Criminal Procedure Code, was filed before the Magistrate by the
prosecution for ordering the respondent to produce certain account books. The Magistrate, relying
on Art. 20(3) of the Constitution refused to do so. The State filed a revision before the Sessions
Judge, who disagreed with the Magistrate and made a reference to the High Court with a
recommendation that the matter be referred back to the Magistrate with suitable directions. The
High Court came to the conclusion that s. 94 does not apply to an accused person and agreed with
the Magistrate in rejecting the application… on appeal to the Supreme Court.
Held Per P. B. Gajendragadkar, C.J., Hidayatullah, Sikri and' Bachawat, JJ. - The High Court was
right in its construction of s. 94, that it does not apply to an accused person. Having regard to the
general scheme of the Code and the basic concept of criminal law, the generality of the word
"person" used in the section is of no significance. If the legislature were minded to make the
section applicable to an accused person, it would have said so in specified words. If the section is
construed so as to include an accused person it is likely to lead to grave hardship for the accused
and make investigations unfair to him, for, if he refused to produce the document before the police
officer, he would be faced with a prosecution under § 175, Indian Penal Code. The words "attend
and produce" used in the section are inept to cover the Case Of an accused person, especially
when the order is issued by a police officer to an accused person in his custody. It cannot be said
that the thing or document produced would not be admitted in evidence if an examination it is
found to in ate the accused, because, on most occasions the power under the section would be
resorted to only when it is likely to incriminate the accused and support the prosecution. Even if
the construction that the section does not apply to accused' renders s. 96 useless because, no search
warrant could be issued for documents known to be in the possession of the accused, still, as far
as the police officer is concerned, he can use § 165 of the Code of Criminal Procedure and order
a general search or inspection.

Per Shah, J. (Dissenting): The words in s. 94(1) are general: they contain no express limitation, nor
do they imply any restriction excluding the person accused of an offence from its operation. The
scheme of the Code also appears to be consistent with that interpretation. If s. 94(1) does not
authorise a Magistrate to issue a summons to a person accused of an offence for the production
of a document or thing in his possession no warrant may be issued under s. 96(1) to search for a
document or thing in his possession. To assume that the police officer in charge of investigation
may, in the course of investigation, exercise powers under s.165, which cannot be exercised where
the court issues a warrant, would be wholly illogical. The use of the words "requiring him to attend
and produce it" indicates the nature of the command to be contained in the summons and does
not imply that the person to whom the summons is directed must necessarily be possessed of
unrestricted freedom to physically attend and produce the document or thing demanded. The
observations made by the Supreme Court in the State of Bombay v. Kathi Kalu Oghad, [1962] 3
S.C.R. 10, that an accused may be called upon by the court to produce documents in certain
circumstances, relate to the power exercisable under s. 94(1) only. It is for the first time by the
Constitution, under Art. 20(3), that a limited protection has been conferred upon a person charged
with the commission of an offence against self-incrimination by affording him protection against
testimonial Compulsion. But apart from this protection there is no reservation which has to be
implied in the application of s. 94(1). Refusal to produce a document or thing on the ground that
the protection guaranteed by Art. 20(3) would be infringed would be a reasonable excuse for non-
production within the meaning of s. 485 of the Procedure Code and such an order in violation of
the Article would not be regarded as lawful within the meaning of s. 175, of the Indian Penal Code.
But protection against what is called testimonial compulsion under the Article is against
proceedings in Court: it does not apply to order, which may be made by a police officer in course
of investigation.

The Indian Legislature was aware of the above fundamental canon of criminal jurisprudence
because in various sections of the Criminal Procedure Code it gives effect to it. For example, in s.
175 it is provided that every person summoned by a Police Officer in a proceeding under S. 174
shall be bound to attend and to answer truly all questions other than questions the answers to
which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
Section 343 provides that except as provided in ss. 337 and 338, no influence by means of any
promise or threat or otherwise shall be used to an accused person to induce him to disclose or
withhold any matter within his knowledge. Again, when the accused is examined under S. 342, the
accused does not render himself liable to punishment if he refuses to answer any questions put to
him. Further, now although the accused is a competent witness, he cannot be called as a witness
except on his own request in writing. It is further provided in S. 342A that his ailure to give
evidence shall not be made the subject of any comment by any parties or the court or give rise to
any presumption against himself or any person charged together with him at the same trial. It
seems to us that in view of this background the Legislature, if it were minded to make s. 94
applicable to an accused person, would have said so in specific words. It is true that the words of
S. 94 are wide enough to include an accused person but it is well-recognised that in some cases a
limitation may be put on the construction of the wide terms of a statute. Again it is a rule as to the
limitation of the mean- ing of general words used in a statute that they are to be, if possible,
construed as not to alter the common law.
Art. 20(3) has been construed by this Court in Kalu Oghad's case to mean that an accused person
cannot be compelled to disclose documents which are incriminatory and based on his knowledge.
Section 94, Criminal Procedure Code, permits the production of all documents including the above
mentioned class of documents. If s. 94 is construed to include an accused person, some
unfortunate consequences follow. Suppose a police officer and here it is necessary to emphasize
that the police officer has the same powers as a Court-directs an accused to attend and produce or
produce a document. According to the accused, he cannot be compelled to produce this document
under Art. 20(3) of the Constitution. What is he to do ? If he refuses to produce it before the
Police Officer, he would be faced with a prosecution under s. 175, Indian Penal Code, and in this
prosecution he could not contend that he was not legally bound to produce it because the order
to produce is valid order if s. 94 applies to an accused person. This becomes clearer if the language
of s. 175 is compared with the language employed in s. 485, Cr. P.C. Under the latter section a
reasonable excuse for refusing to produce is a good defence. If he takes the document and objects
to its production, there is no machinery provided for the police officer to hold a preliminary
enquiry. The Police Officer could well say that on the terms of the section he was not bound to
listen to the accused or his counsel. Even if he were minded to listen, would he take evidence and
hear arguments to determine whether the production of the document is prohibited by Art. 20(3).
At any rate, his decision would be final under the Code for no appeal or revision would lie against
his order. Thus it seems to us that if we construe s. 94 to include an accused person, this
construction is likely to lead to grave hardship for the accused and make investigation unfair to
him.
The words "attend and produce" are rather inept to cover the case of an accused person. It would
be an odd procedure for a court to issue a summons to an accused person present in court "to
attend and produce a document. It would be still more odd for a police officer to issue a written
order to an accused person in his custody to "attend and produce" a ,document. The argument
pressed on us that the "person" referred to in the latter part of s. 94(1) is broad enough to include
an accused person does not take into account the fact that the person in the latter part must be
identical with the person who can be directed to produce the thing or document, and if the
production of the thing or document cannot be ordered against an accused person having regard
to the general scheme of the Code and the basic concept of Criminal Law, the Generality of the
word "the person" is of no significance.
It is not necessary to review all the cases cited before us. It will be sufficient if we deal with the
Full Bench decision of the Calcutta High Court in Satya Kinkar Ray v. Nikhil Chandra
Jyotishopadhya(1), for the earlier cases are reviewed in it. Three main considerations prevailed with
the High Court : First, that giving s.94 its ordinary grammatical construction it must be held that
it applies to accused persons as well as to others; secondly, that there is no inconsistency between
s. 94 and other provisions of the Code, and thirdly, that this construction would not make, the
section ultra vires because calling upon an accused person to produce a document is not
compelling the accused to give evidence against himself. Regarding the first Iwo reasons, we may
point out that these reasons do not conclude the matter. The High Court did not advert to the
importance of the words "attend and produce" in s. 94, or the background of Art. 20(3). The third
reason is inconsistent with the decision of this Court in M. P. Sharma v. Satish Chandra(4), and
the learned Chief Justice might well have arrived at a different result if he had come to the
conclusion that to call an accused person to produce a document does amount to compelling him
to give evidence against himself.

Shah, J. (Dissenting) - The question which falls to be determined in these appeals is whether in
exercise of the power under s. 94(1) of the Code of Criminal Procedure a Court has authority to
summon a person accused of an offence before it to produce a document or a thing in his
possession. The words of the clause are general: they contain no express limitation, nor do they
imply any restriction excluding the person accused of an offence from its operation. In terms the
section authorises any Court, or any officer in charge of a police- station, to issue a summons or
written order to the person in whose possession or power such document or thing is believed to
be, requiring such person to attend and produce it, at the time and place indicated in the summons
or order. The scheme of the Code also appears to be consistent with that interpretation.
Specific provisions with regard to the issue of a summons or warrant to secure attendance of
witnesses and accused and production of documents and things are not found in Chapters XX to
XXIII because they are already made in Chapters VI & VII. Again the use of the words "requiring
him to attend and produce it" indicates the nature of the command to be contained in the
summons and does not imply that the person to whom the summons is directed must necessarily
be possessed of unrestricted freedom to physically attend and produce the document or thing
demanded.
In The State of Bombay v. Kathi Kulu Oghad, Sinha, C.J., delivering the judgment of the majority
of the Court observed: "The accused may have documentary evidence in his possession which
may throw some light on the con trovers. If it is a document which is not his statement conveying
his personal knowledge relating to the charge against him, he may be called upon by the Court to
produce that document in accordance with the provisions of S. 139 of the Evidence Act, The
learned Chief Justice did not expressly refer to the source of the power, but apart from s. 94(1) of
the Code of Criminal Procedure there is no other provision which enables a Magistrate to summon
a person to produce a document or thing in his possession. The observations made by the Court
therefore only relate to the power exercisable under S. 94(1).
He gives examples of provisions running contrary to the protection against self-incrimination as
understood in the common law in the United Kingdom, like § 132 of IEA, 1872 which enacts in
no uncertain terms that a witness shall not be excused from answering any questions as to any
matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the
ground that the answer to such question will criminate, or may tend directly or indirectly to
criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness
to a penalty or forfeiture of any kind. + other provisions in different acts like § 4 & 5 of the
Identification of Prisoners Act, 1920, and §129 of the Bombay Prohibition Act, 1949.
Provisions have also been made under diverse statutes compelling a person including an accused
to supply evidence against himself. For instance, by s. 73 of the Evidence Act, the Court is
authorised in order to ascertain whether a signature, writing or seal is that of the person by whom
it purports to have been written or made, to direct any person present in Court to write any words
or figures for the purpose of enabling the Court to compare the words or figures so written with
any words or figures alleged to have been written by such person.
The inter-relation between S. 94 and the first paragraph of s. 96(1) strongly indicates that the power
to issue a search warrant under paragraph one of s. 96(1) is conditional upon the person, who it is
apprehended will not or would not produce a thing or document, being compellable to produce it
in pursuance of a summons under s. 94(1). If under S. 94(1) a summons cannot be issued against
a person accused of an offence. a search warrant under s. 96(1) paragraph 1 can evidently not be
issued in respect of a document or thing in his possession. Paragraphs 2 and 3 are undoubtedly
not related to s. 94(1). But under paragraph 2 a Court may issue a search warrant where the
document or thing is not known to the Court to be in the possession of any person; if it is known
to be in the possession of any person paragraph 2 cannot be resorted to. Again, if the interpretation
of the first paragraph that a search warrant cannot issue for a thing or document in the possession
of a person accused be correct, issue of a general warrant under the third paragraph which may
authorise the search of a place occupied by the accused or to which he had access would in
substance amount to circumventing the restriction implicit in paragraph one.
Nature of the power reserved to investigating officers by s. 165 of the Code of Criminal Procedure
must also be considered. That section authorises a police officer in charge of an investigation
having reasonable grounds for believing that anything necessary for purposes of an investigation
into any offence which he is authorised to investigate may be found in any place within the limits
of the police station, and that such thing cannot be otherwise obtained without undue delay, to
record in writing the grounds of his belief and specify in such writing, the thing for which search
is to be made, and to search, or cause search to be made, for such thing in any place within the
limits of such station. Section 94(1) authorises a police officer-to pass a written order for the
production of any document or thing from any person in whose possession or power the
document or thing is believed to be. If S. 94(1) does not extend to the issue of an order against an
accused person by a police officer, would the police officer in charge of the investigation, be
entitled to search for a thing or document in any place occupied by the accused or to which he has
access for such document or thing ? To assume that the police officer in charge of the investigation
may in the course of investigation exercise power which cannot be exercised when the Court issues
a search warrant would be wholly illogical. To deny to the investigating officer the power to search
for a document or thing in the possession of a person accused is to make the investigation in many
cases a farce. Again, if it be held that a Court has under the third paragraph of S. 96(1) power to
issue a general search warrant, exercise of the power would make a violent infringement of the
protection against self-incrimination, as understood in the United Kingdom, because the Courts
in that country frowned upon the issue of a general warrant for search ,of a document or thing :
Entick v. Carrington.

V. S. Kuttan Pillai vs Ramakrishnan

Warrant under s. 93(1)(c) issued for search and seizure of documents-Search warrant if violates
fundamental right under Article 20(3) of Constitution. Constitution of India-Article 20(3)-Right if
violated by issue of search warrant under s. 93(1)(c) of Cr.P.C.. 1973. The complainant (respondent
no. 1 ) made an application before a magistrate for the issue of a warrant for the search and seizure
of certain books and documents of a Sabha of which the accused were office-bearers. After the
seizure of the books and documents, on the application of one of the accused persons, the
magistrate directed their return to the persons from whom they were recovered. In the respondent
revision petition the High Court held that the provisions contained in s. 93(1) of the Cr.P.C. were
not hit by Art. 20(3) of the Constitution. Appeal was dismissed.
Section 91 of the Code of Criminal Procedure, 1973 confers power on the court or an officer in
charge of a police station to issue a summons or written order to any person in whose possession
or power a document the production of which the court or the officer considers necessary or
desirable for the purposes of any investigation, inquiry, trial or other proceeding under the Code
calling upon him to produce the document.
Section 93 of the Code contemplates three situations in which the court may issue a search warrant:
(a) where the Court has reason to believe that a person to whom the summons or order under s.
91 has been or might be addressed will not or would not produce the document or thing as required
by such summons or requisition or (b) where such document or thing is not known to the court
to be in the possession of any person or (c) where the court considers that the purposes of any
enquiry, trial or other proceeding under this code will not be served by a general search or
inspection, then it may issue a search warrant; and the person to whom such warrant is directed
may search or inspect in accordance therewith and the provisions contained in the code.

1. The immunity against self-incrimination extends to any incriminating evidence which the accused may be compelled
to give but does not extend to cover a situation where evidence which may have tendency to incriminate the accused is
being collected without compelling him to be a party to the collection of the evidence. The search of the premises
occupied by the accused, without compelling the accused to be party to such search, would not be violative of Art.
20(3) of the Constitution. 2. A search and seizure pursuant to a search warrant under s. 93 (1) (c) of the Code
would not have the remotest tendency to compel an accused to incriminate himself. He is not required to participate
in the search. He may remain a passive spectator or may even be absent. Merely because the accused is occupying the
premises to be searched it cannot be said that by such search and consequent seizure of documents, including the
document which may contain statements attributable to the personal Knowledge of the accused and which may have
a tendency to incriminate him, would violate the constitutional guarantee against self-incrimination because he is not
compelled to do anything. A passive submission to search cannot be styled as compulsion on the accused to submit to
search. If anything is recovered during the search which may provide incriminating evidence against the accused it
cannot be called a compelled testimony. 3. Section 93(1)(c) comprehends a situation where a search warrant can be
issued as the court is unaware of not only the person but even the place where the documents may be found and that
a general search is necessary. Therefore, power of the court under this clause cannot be cut down by importing some
of the requirements of cl. (b) of the s. 93(1). In the instant case although the order of the magistrate was laconic
certain important aspects could not be over-looked. The objects of the Sabha were of a general charitable nature. An
earlier search warrant was quashed by the High Court. When the complainant made more serious allegation a
search warrant was issued to conduct a search of the institution. The office premises, the books and other documents
of the Sabha could not be said to be in possession of any individual accused. They were in the possession of the
institution. A search of such a public place under the authority of a general search warrant can easily be sustained
under s. 93(1)(c). Viewed this way there was no illegality in the Magistrate's order.
Discusses the previous 3 cases – MP Sharma, Kathi Kalu Oghad and Shyamlal Mohanlal.

The question was whether a summons can be addressed to the accused calling upon him to
produce any document which may be in his possession or power and which is necessary or
desirable for the purpose of an investigation, inquiry, trial, etc. in which such person was an
accused person. The wider question that was raised soon after the enforcement of the Constitution
was whether search of the premises occupied or in possession of a person accused of an offence
or seizure of anything therefrom would violate the immunity from self-incrimination enacted in
Article 20(3).

MP Sharma case – Contention put forth was that a search to obtain document for investigation
into an offence is- a compulsory procuring of incriminatory evidence from the accused himself
and is, therefore, hit by Art. 20(3) as unconstitutional and illegal. A Constitution Bench of 8 judges
of this Court unanimously negatived this contention observing: "A power of search and seizure is
in any system of jurisprudence an overriding power of the State for the protection of social security
and that power is necessarily regulated by law. When the Constitution makers have thought fit not
to subject such regulation to constitutional limitations by recognition of a fundamental right to
privacy, analogous to the American Fourth Amendment, we have no justification to import it, into
a totally different fundamental right, by some process of strained construction. Nor is it legitimate
to assume that the constitutional protection under Article 20(3) would be defeated by the statutory
provisions for searches."

After the decision in M. P. Sharma's case, a Madras High Court Division Bench in Swarnalingam
Chettiar v. Assistant Labour Inspector, Karaikudi, ruled that a summons under Section 94 of the
old Code couldn't be issued to the accused for document production, irrespective of content. The
summons was quashed. Later, when a notice was issued for a search warrant, the accused moved
the High Court again, arguing testimonial compulsion. The High Court, in Swarnalingam Chettiar
v. Assistant Inspector of Labour Karaikudi, quashed the notice, holding that such notice practically
amounts to stating that either he produces the document or else the premises will be searched and
this will amount to testimonial compulsion held impermissible per the Supreme Court's decision
in M. P. Sharma's case. However, this view is outdated in light of subsequent Supreme Court
decisions.
Kathi Kalu Oghad case - Question arose whether obtaining specimen hand writing or thumb
impression of the accused would contravene the constitutional guarantee in Art. 20(3). In this case
there was some controversy about certain observations in M. P. Sharma's case (supra) and,
therefore, the matter was heard by a Bench of 11 Judges. Two opinions were handed down, one
by Chief Justice Sinha for himself and 7 brother judges, and another by Das Gupta, J. for himself
and 2 other colleagues.
In Sinha, CJ's (Majority) opinion, the observation in M. P. Sharma's case (supra) that s. 139
of the Evidence Act has no bearing on the connotation of the word 'witness' is not entirely
well-founded in law. Immunity from self- incrimination as re-enacted in Art. 20(3) was
held to mean conveying information based upon the personal knowledge of the person
giving the information and could not 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. It was
concluded that to be a witness is not equivalent to furnishing evidence in its widest
significance; that is to say, as including not merely making of oral or written statement but
also production of document or giving materials which may be relevant at trial to determine
the innocence or guilt of the' accused. What was kept open in Sharma's case (supra)
whether a person accused of an offence could be served with a summons to produce
documents was decided when it was observed that immunity from self-incrimination
would not comprehend 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 a statement
of the accused based on his personal knowledge.
Shah, J., in dissent, argues that Section 94(1) of the Code of Criminal Procedure grants a
court the authority to summon a person accused of an offense to produce a document or
thing in their possession, without any express limitation or implied restriction. The use of
the words "requiring him to attend and produce it" in the section does not imply
unrestricted freedom for the person summoned. The judge refers to provisions
contradicting the protection against self-incrimination in various acts and statutes. Shah,
J., points out that specific provisions regarding summons or warrants for witness
attendance and document production are absent in certain chapters of the Code because
they are already covered in earlier chapters. The dissenting judge cites The State of Bombay
v. Kathi Kulu Oghad to support the power exercisable under Section 94(1) and emphasizes
the inter-relation between Section 94 and Section 96(1). The judge further argues that
Section 94(1) and the first paragraph of Section 96(1) suggest that the power to issue a
search warrant under Section 96(1) is conditional on the person being compellable to
produce the document through a summons under Section 94(1). The dissenting opinion
 also considers the nature of the power reserved for investigating officers under Section
165 and highlights the potential illogicality in denying the investigating officer the power
to search for a document in the possession of an accused person. The judge raises concerns
about the circumvention of restrictions on search warrants and the potential violation of
protection against self-incrimination.

Shyamlal Mohanlal case - Question that was put in forefront before the Court was whether the
expression 'person' in s. 94(1) which is the same as s. 91(1) of the new Code, comprehends within
its sweep a person accused of an offence and if it does, whether an issue of summons to produce
a document in his possession or power would violate the immunity against self-incrimination
guaranteed by Article 20(3). The majority opinion handed down by Sikri, J. ruled that s. 94(1) upon
its true construction does not apply to an accused person. While recording this opinion there is no
reference to the decision of the larger Bench in Kathi Kalu oghad's case (supra). Shah, J. in his
dissenting judgment referred to the observation that the accused may have documentary evidence
in his possession which may throw some light on the controversy and if it is a document which is
not his statement conveying his personal Knowledge relating to the charge against him, he may be
called upon to produce it. Proceeding further it was observed that Art. 20(3) would be no bar to
the summons being issued to a person accused of an offence to produce a thing or document
except in the circumstances herein above mentioned. Whatever that may be, it is indisputable that
according to the majority opinion the expression 'person' in s. 91(1) (new Code) does not take
within its sweep a person accused of an offence which would mean that a summons issued to an
accused person to produce a thing or document considered necessary or desirable for the purpose
of an investigation, inquiry or trial would imply compulsion and the document or thing so
produced would be compelled testimony and would be violative of the constitutional immunity
against self-incrimination.

There appears to be some conflict between the observations in M. P. Sharma's case (supra) as
reconsidered in Kothi Kala oghad's case (supra) and the one in the case of Shyamlal Mohanlal
(supra).

Acc. to Shyamlal Mohanlal case, ‘person’ in §91(1) does not include accused. Cannot issue
summons and thus search warrant under §93(1)(a) can also not be issued for the obvious reason
that it can only be issued where the Court could have issued a summons but would not issue the
same under the apprehension that the person to whom such summons is issued will not or would
not produce the thing as required by such summons or requisition. §93(1) (b) comprehends a
situation where a search warrant may be issued to procure a document or thing not known to the
Court to be in the possession of any person. In other words, a general search warrant may be
issued to procure the document or thing and it can be recovered from any person who may be
ultimately found in possession of it and it was not known to the Court that the person from whose
possession it was found was in possession of it.

§93(1) (c) of the new Code comprehends a situation where the Court may issue a search warrant
when it considers that the purpose of an inquiry, trial or other proceeding under the Code will be
served by a general search or inspection to search, seize and produce the documents mentioned in
the list. When such a general search warrant is issued, in execution of it the premises even in
possession of the accused can be searched and documents found therein can be seized irrespective
of the fact that the documents may contain some statement made by the accused upon his personal
knowledge and which when proved may have the tendency to incriminate the accused. However,
such a search and seizure pursuant to a search warrant issued under s. 93(1) (c) will not have even
the remotest tendency to compel the accused to incriminate himself. He is expected to do nothing.
He is not required to participate in the search. He may remain a passive spectator. He may even
remain absent. Search can be conducted under the authority of such warrant in the presence of
the accused. Merely because he is occupying the premises which is to be searched under the
authority of the search warrant it cannot even remotely be said that by such search and consequent
seizure of documents including the documents which may contain statements attributable to the
personal knowledge of the accused and which may have tendency to incriminate him, would violate
the constitutional guarantee against self- incrimination because he is not compelled to do anything.
A passive submission to search cannot be styled as a compulsion on the accused to submit to
search and if anything is recovered during search which may provide incriminating evidence against
the accused it cannot be styled as compelled testimony. This is too obvious to need any precedent
in support. The immunity against self- crimination extends to any incriminating evidence which
the accused may be compelled to give. It does not extend to cover such situation as where evidence
which may have tendency to incriminate the accused is being collected without in any manner
compelling him or asking him to be a party to the collection of the evidence. Search of the premises
occupied by the accused without the accused being compelled to be a party to such search would
not be violative of the constitutional guarantee enshrined in Article 20(3).
Section 93(1)(b) comprehends a situation where the Court issues a search warrant in respect of a
document or a thing to be recovered from a certain place but it is not known to the Court whether
that document or thing is in possession of any particular person. Under clause (b) there is a definite
allegation to recover certain document or thing from a certain specific place but the Court is
unaware of the fact whether that document or thing or the place is in possession of a particular
person. Section 93(1)(c) comprehends a situation where a search warrant can be issued as the Court
is unaware of not only the person but even the place where the documents may be found and that
a general search is necessary. One cannot, therefore, cut down the power of the Court under s.
93(1) (c) by importing into it some of the requirements of s. 93(1)(b). No canon of construction
would permit such an erosion of power of the Court to issue a general search warrant. It also
comprehends not merely a general search but even an inspection meaning thereby inspection of a
place and a general search thereof and seizure of documents or things which the Court considers
necessary or desirable for the purpose of an investigation, inquiry, trial or other proceeding under
the Code.

(Discusses facts of the case and search warrant issued by Magistrate) … A search of such a public
place under the authority of a general search warrant can easily be sustained under s. 93(1)(c). If
the order of the learned Magistrate is construed to mean this, there is no, illegality committed in
issuing a search warrant. Of course, issuance of a search warrant is a serious matter and it would
be advisable not to dispose of an application for search warrant in a mechanical way by a laconic
order. Issue of search warrant being in the discretion of the Magistrate it would be reasonable to
expect of the Magistrate to give reasons which swayed his discretion in favour of granting the
request. A clear application of mind by the learned Magistrate must be discernible in the order
granting the search warrant. Having said this, we see no justification for interfering with the order
of the High Court in this case.

M. Kalanithi Maran Vs State, by the Inspector of Police, Cbcid

The petitioner has come forward to file the above criminal original petition seeking the relief
sought for on ground that in issuing the impugned order, the respondent has exceeded his
jurisdiction in directing the petitioner to cause production of the documents mentioned in the said
order; that a reading of Section 91 Cr.P.C. would clearly reveal that the words used therein are 'the
person' and not an 'accused person' and therefore the respondent cannot invoke his powers under
Section 91 Cr.P.C. against an accused person; that the Honorable Supreme Court has held that the
'person' referred to in Section 91 Cr.P.C. does not include 'an accused person' and therefore he
cannot be compelled to produce documents or information pursuant to a written order by a police
Officer under Section 91 Cr.P.C. Petitioner relies on Shyamlal Mohanlal case, and 3 other
judgements. Also relied on Nandini Satpathy case to the extent where it held that "Under S. 161
Cr.P.C. 'any person' includes the accused thus enabling the police to examine the accused during
investigation, but the prohibitive sweep of Art. 20(3) of the Constitution goes to the stage of police
investigation not commencing in Court only. In fact, the provisions of Art. 20(3) and S. 161(2)
substantially cover the same area so far as police investigations are concerned. The ban on self-
accusation and the right to silence, while an investigation or a trial is under way, goes beyond that
case and protects the accused in regard to other offences pending or imminent, which may deter
him from voluntary disclosure of criminatory matter." "Compelled testimony' is evidence procured
not merely by physical threats or violence but by psychic torture, atmospheric pressure,
environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods and
the like. A police officer is clearly a person in authority and insistence on answering is a form of
pressure especially in the atmosphere of the police station unless certain safeguards erasing duress
are adhered to." "Legal penalty for refusing to answer or answer truthfully may by itself not amount
to duress. It cannot be regarded as compulsion under Art. 20(3). But, frequent threats of
prosecution if there is failure to answer may take on the complexion of undue pressure violating
Art. 20(3). The manner of mentioning it to the victim of interrogation may introduce an element
of tension and tone of command perilously hovering near compulsion."

In consideration of the facts pleaded, having regard to the materials placed on record and upon
hearing the learned counsel for both, the short legal question that arises for determination is
pertaining to the notice issued by the respondent under Section 91 of Cr.P.C. seeking to cause
production of the items mentioned. The contention of the petitioner is, that 'the person'
mentioned in Section 91 of Cr.P.C. is not an 'accused person' but someone else and since the
petitioner being the accused in the case registered by the respondent for specific offences alleged
to have been committed and therefore, the respondent cannot invoke his powers under Section
91 of Cr.P.C. against the petitioner who is the accused in this case.

Even though on the part of the learned Public Prosecutor, he would cite from the case , wherein
the Full Bench of the Hon'ble Apex Court has held that under Section 161 of Cr.P.C. 'any person'
includes the accused person also thus enabling the police to examine the accused during
investigation, still, the case cited on the part of the learned senior counsel appearing on behalf of
the petitioner reported in (1965) MLJ (Crl) 417 (STATE OF GUJARAT V. SHYAMLAL
MOHANLAL CHOKSI) is direct to the point dealing with Section 91 Cr.P.C. with which the
subject matter is concerned, wherein it has been held by the Hon'ble Apex Court in no uncertain
terms, while answering the point, that the term 'the person' employed in Section 91 Cr.P.C. does
not include the 'accused person' true to its construction and therefore, adhering to the said
judgment of the Hon'ble Apex Court, this Court has to only answer that the respondent has no
authority or reason to summon the petitioner who is an accused in the case in which summons
have been sent to cause production of those materials mentioned.