CaseCiter Digest

Indian Penal Code 1860 – Section 198-Mens rea is an essential ingredient of the offence. Only because the accused could not establish her caste claim before the Committee, one cannot conclude that the accused corruptly used the caste certificate. Moreover, corruptly using the certificate is not sufficient. The accused must have knowledge that the certificate is false. The allegation that the certificate is false to the knowledge of the accused must be proved by the prosecution. (Para 7) Section 415,420 – Fraudulent or dishonest acts are essential ingredients of cheating. (Para 9)

Code Of Criminal Procedure 1973 – Section 378,386- The Appellate Court has to examine whether the findings recorded in the acquittal judgment are plausible findings that could have been recorded based on the evidence on record. Only if the Appellate Court is satisfied that the guilt of the accused is duly proved was the only plausible finding which could have been recorded based on the evidence on record, the Appellate Court can overturn the order of acquittal. In this case, no such finding has been recorded by the Sessions Court. Only because it is possible to take another view is no ground to overturn an order of acquittal. (Para 5)

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Code Of Criminal Procedure 1973- Section 432 of the CrPC [ Section 473(1) BNSS] -(I) The appropriate Government has the power to remit the whole or any part of the punishment of a convict. The remission can be granted either unconditionally or subject to certain conditions; (ii) The decision to grant or not to grant remission has to be well­informed, reasonable and fair to all concerned; (iii) A convict cannot seek remission as a matter of right. However, he has a right to claim that his case for the grant of remission ought to be considered in accordance with the law and/or applicable policy adopted by the appropriate Government; (iv) Conditions imposed while exercising the power under sub­section (1) of Section 432 or sub­section (1) of Section 473 of the BNSS must be reasonable. If the conditions imposed are arbitrary, the conditions will stand vitiated due to violation of Article 14. Such arbitrary conditions may violate the convict’s rights under Article 21 of the Constitution; (v) The effect of remitting the sentence, in part or full, results in the restoration of liberty of a convict. If the order granting remission is to be cancelled or revoked, it will naturally affect the liberty of the convict. The reason is that when action is taken under sub­section (3) of Section 432 of the CrPC or sub­section (3) of Section 473 of the BNSS, it results in the convict being taken to prison for undergoing the remaining part of the sentence Therefore, this drastic power cannot be exercised without following the principles of natural justice. A show cause notice must be served on the convict before taking action to withdraw/cancel remission. The show cause notice must contain the grounds on which action under subsection (3) of Section 432 of the CrPC or sub­section (3) of Section 473 of BNNS is sought to be taken. The concerned authority must give the convict an opportunity to file a reply and of being heard. After that, the authority must pass an order stating the reasons in brief- Registration of a cognizable offence against the convict, per se, is not a ground to cancel the remission order. The allegations of breach of condition cannot be taken at their face value, and whether a case for cancellation of remission is made out will have to be decided in the facts of each case. Every case of breach cannot invite cancellation of the order of remission. The appropriate Government will have to consider the nature of the breach alleged against the convict. A minor or a trifling breach cannot be a ground to cancel remission. There must be some material to substantiate the allegations of breach. Depending upon the seriousness and gravity thereof, action can be taken under sub­section (3) of Section 432 of the CrPC or sub­section (3) of Section 473 of the BNSS of cancellation of the order remitting sentence. (Para 17)

Code Of Criminal Procedure 1973- Section 432 of the CrPC [ Section 473(1) BNSS] – Condition requiring the convict to behave decently for a period of two years after release from jail- The words ‘decent’ or ‘decently’ are not defined in the CrPC or any other cognate legislation. The concept of decency of each human being is likely to be different. The idea of decency keeps on changing with time. As the term ‘decency’ is not defined in the CrPC or any other cognate legislation, every person or authority may interpret the same differently. Therefore, such a condition while granting remission becomes too subjective. Putting such a vague condition while exercising the power under sub­section (1) of Section 432 of the CrPC will give a tool in the hands of the executive to cancel the remission at its whims and fancies. Therefore, such a condition is arbitrary and will be hit by Article 14 of the Constitution of India. Such a condition cannot be imposed as it will defeat the very object of remitting the sentence in the exercise of powers under sub­section (1) of Section 432 of the CrPC. (Para 13)

Constitution of India – Article 226– The convict can always challenge the order of cancellation of remission by adopting a remedy under Article 226 of the Constitution of India. (Para 15)

Code Of Criminal Procedure 1973 – Section 294– Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed. That is to say that if the authors of such documents does not enter the witness box to prove their signatures, the said documents could still be read in evidence. Further, under the proviso the Court has the jurisdiction in its discretion to require such signature to be proved. In the present case, the documents filed by the investigating agency were all public documents duly signed by public servants in their respective capacities either as Investigating Officer or the doctor conducting the autopsy or other police officials preparing the memo of recoveries etc. (Para 15)

Code Of Criminal Procedure 1973 – Section 319 –Is it mandatory to decide the application under section 319 CrPC before conducting cross-examination and only on the basis of examination-in-chief? The Constitution Bench judgment in Hardeep Singh vs. State of Punjab does not take away the discretion of the Trial Court to wait for the crossexamination to take place before deciding the application under section 319 CrPC. It merely provides that consideration of such an application should not be a mini trial. It is for the Trial Court to decide whether the application should be decided without waiting for the crossexamination to take place or to wait for it. The same would depend upon the satisfaction of the Trial Court on the basis of the material placed on record- The complicity of any person sought to be arrayed as an accused can be decided with or without conducting cross-examination of the complainant and other prosecution witnesses, and there is no mandate to decide the application under section 319 CrPC before crossexamination of other witnesses. (Para 13-17)

Criminal Trial –The role of the complainant in a trial does not permit it to act as a Public Prosecutor on behalf of the State. The complainant and its counsel have a limited role in a sessions trial in a State case. (Para 18)

Summary -Charge sheet alleged that the accused, with the object of cheating the Bank, granted the three facilities to a company – High Court allowed his discharge petition – Dismissing appeal, SC observed: perhaps the only material that creates suspicion is the speed with which the proposal of the Company was sanctioned. As far as the respondent is concerned, considering his position and the role ascribed to him in the grant of sanction to the loan proposal of the Company, mere suspicion against him is not enough to frame a charge against him- Only because the entire proposal was processed and cleared within a short span of time, no offence is made out against the respondent. Taking the material in the charge sheet as it is, complicity of the respondent is not made out.

Indian Penal Code 1860 – Section 302 – Death Sentence –Doctrine of “rarest of rare” requires that death sentence should not be imposed only by taking into consideration the grave nature of crime but only if there is no possibility of reformation by a criminal. (Para 32)

Criminal Trial – Non-examination of independent witnesses by itself would not give rise to adverse inference against the prosecution. It would only assume importance when the evidence of eyewitness raises a serious doubt about their presence at the time of actual occurrence (Para 14( – here are bound to be some discrepancies between the narration of different witnesses, when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. It is further observed that corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. (Para 21) -Conviction can be based on the testimony of a sole eyewitness- The court can act on the testimony of a single witness though uncorroborated. Unless corroboration is insisted upon by a statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence that corroboration should be insisted upon. Whether corroboration of the testimony of a single witness is or is not necessary, would depend upon facts and circumstances of each case and depends upon the judicial discretion- Court would be considered with the quality and not the quantity of the evidence necessary for proving or not proving a fact. (Para 12)

Summary: Appellant conviction for murdering his pregnant daughter upheld -But the sentence of death penalty imposed by the courts below converted to 20 years of rigorous imprisonment without remission.

Code of Criminal Procedure, 1973 – Section 235 –A judgment of conviction shall have two components; namely, (i) Judgment on the point of conviction; and (ii) Where the accused is convicted, a separate order of sentence to be passed according to law, after hearing the accused on the question of sentence- Once the judgment of conviction is delivered, the accused has a right to be heard on the quantum of the sentence- Various relevant factors, including mitigating circumstances, if any, are to be kept in mind by the Court while awarding an adequate and proportionate sentence- In this case, the accused was held guilty and convicted vide judgment pronounced on 30.04.2015- Before he could be heard on the quantum of the sentence, the accused moved an application to exempt him from personal appearance on the ground that he had met with an accident. In view of that application, the matter was adjourned on a few occasions to enable the accused to recover from the accident.In the meanwhile, the Presiding Officer of the Court,, who had convicted him, was transferred – A new Presiding Officer was posted in his place. The question raised in this appeal is whether the new Presiding Officer was obligated not only to hear the accused on the question of sentence but also on the point of conviction? SC Held: The process and procedure contemplated under Section 235(2) cannot annul the judgment of conviction recorded under sub-section (1) thereof. Both clauses operate in their respective fields, though sub-section (2) is contingent upon the outcome under sub-section (1) of Section 235. The occasion to comply with subsection (2) arises only when there is a judgment of conviction passed under Section 235(1) of the Cr.PC -Once the judgment was pronounced, the conviction of the appellant stood finalized within the meaning of Section 235(1) whereupon the Trial Court became functus officio for the purpose of sub-section (1) of Section 235 of the Cr.P.C. The only issue that survived thereafter was of the quantum of sentence for which, the procedure contemplated under sub-section (2) was to be complied with-The successor officer should therefore hear the appellant on the question of sentence and pass an appropriate order.

Code of Criminal Procedure 1973- Section 482 –A petition to quash the FIR does not become infructuous on submission of a police report under Section 173 (2) of the CrPC- But when a police report has been submitted, particularly when there is no stay on the investigation, the Court must apply its mind to the materials submitted in support of the police report before taking a call whether the FIR and consequential proceedings should be quashed or not – At the stage of deciding whether a criminal proceeding or FIR, as the case may be, is to be quashed at the threshold or not, the allegations in the FIR or the police report or the complaint, including the materials collected during investigation or inquiry, as the case may be, are to be taken at their face value so as to determine whether a prima facie case for investigation or proceeding against the accused, as the case may be, is made out. The correctness of the allegations is not to be tested at this stage- FIR is not an encyclopedia of all imputations. Therefore, to test whether an FIR discloses commission of a cognizable offence what is to be looked at is not any omission in the accusations but the gravamen of the accusations contained therein to find out whether, prima facie, some cognizable offence has been committed or not. At this stage, the Court is not required to ascertain as to which specific offence has been committed. It is only after investigation, at the time of framing charge, when materials collected during investigation are before the Court, the Court has to draw an opinion as to for commission of which offence the accused should be tried. Prior to that, if satisfied, the Court may even discharge the accused. Thus, when the FIR alleges a dishonest conduct on the part of the accused which, if supported by materials, would disclose commission of a cognizable offence, investigation should not be thwarted by quashing the FIR. (Para 16-19)

Mens Rea – To commit an offence, unless the penal statute provides otherwise, mens rea is one of the essential ingredients. Existence of mens rea is a question of fact which may be inferred from the act in question as well as the surrounding circumstances and conduct of the accused. (Para 17)

Indian Penal Code,1860 –Section 306 [Section 108 of BNS,2023]-The basic ingredients to constitute an offence under Section 306 of the IPC are suicidal death and abetment thereof -The ingredients to constitute an offence under Section 306 of the IPC (abetment of suicide) would stand fulfilled if the suicide is committed by the deceased due to direct and alarming encouragement/incitement by the accused leaving no option but to commit suicide. Further, as the extreme action of committing suicide is also on account of great disturbance to the psychological imbalance of the deceased such incitement can be divided First, where the deceased is having sentimental ties or physical relations with the accused and the second category would be where the deceased is having relations with the accused in his or her official capacity. In the case of former category sometimes a normal quarrel or the hot exchange of words may result into immediate psychological imbalance, consequently creating a situation of depression, loss of charm in life and if the person is unable to control sentiments of expectations, it may give temptations to the person to commit suicide, e.g., when there is relation of husband and wife, mother and son, brother and sister, sister and sister and other relations of such type, where sentimental tie is by blood or due to physical relations. In the case of second category the tie is on account of official relations, where the expectations would be to discharge the obligations as provided for such duty in law and to receive the considerations as provided in law. In normal circumstances, relationships by sentimental tie cannot be equated with the official relationship. The reason being different nature of conduct to maintain that relationship. The former category leaves more expectations, whereas in the latter category, by and large, the expectations and obligations are prescribed by law, rules, policies and regulations. (Para 14- 21)

Code of Criminal Procedure, 1973- Section 482 – Abetment of suicide cases -The test that the Court should adopt in this type of cases is to make an endeavour to ascertain on the basis of the materials on record whether there is anything to indicate even prima facie that the accused intended the consequences of the act, i.e., suicide. Over a period of time, the trend of the courts is that such intention can be read into or gathered only after a fullfledged trial. The problem is that the courts just look into the factum of suicide and nothing more. We believe that such understanding on the part of the courts is wrong. It all depends on the nature of the offence & accusation. For example, whether the accused had the common intention under Section 34 of the IPC could be gathered only after a full-fledged trial on the basis of the depositions of the witnesses as regards the genesis of the occurrence, the manner of assault, the weapon used, the role played by the accused etc. However, in cases of abetment of suicide by and large the facts make things clear more particularly from the nature of the allegations itself. The Courts should know how to apply the correct principles of law governing abetment of suicide to the facts on record. It is the inability on the part of the courts to understand and apply the correct principles of law to the cases of abetment of suicide, which leads to unnecessary prosecutions. We do understand and appreciate the feelings and sentiments of the family members of the deceased and we cannot find any fault on their part if they decide to lodge a First Information Report with the police. However, it is ultimately for the police and the courts of law to look into the matter and see that the persons against whom allegations have been levelled are not unnecessarily harassed or they are not put to trial just for the sake of prosecuting them. (Para 22)

Summary: Allowing appeal filed by accused in an abetment to suicide case, the Supreme Court observed: putting the appellants to trial on the charge that they abetted the commission of suicide by the deceased will be nothing but abuse of process of law. In our opinion, no case worth the name against the appellants is made out.

Code of Criminal Procedure 1973 – Section 482 -For quashing of criminal charges it must be shown that there is no sufficient evidence to prove a prima facie case against the accused person/s. [In this case, there are statements by witnesses indicating abuse and torture of deceased by her in-laws and other factual circumstances- Therefore prima facie case is made against the accused persons- The High Court erred in quashing the order of trial court framing charges]

Summary: Trial Judge did not impose death penalty holding that it does not fit in the category of ‘rarest of rare cases’ – High Court imposed death penalty in appeal – Partly allowing appeal, SC observed: Unless the finding recorded by the Trial Judge was found to be perverse or impossible, the High Court ought not to have interfered with the same. In any case, the role played by appellant- is similar with all the other accused and the case of appellant could not have been segregated to impose death penalty upon him- The sentence of death imposed by the High Court set aside.

Code of Criminal Procedure ,1973- Section 154– When there is a delay in forwarding the FIR to the jurisdictional magistrate and the accused raises a specific contention regarding the same, they must demonstrate how this delay has prejudiced their case. Mere delay by itself is not sufficient to discard and disbelieve the case of the prosecution. If the investigation starts in right earnest and there is sufficient material on record to show that the accused were named and pinpointed, the prosecution case can be accepted when evidence implicates the accused. The requirement to dispatch and serve a copy of the FIR to the jurisdictional magistrate is an external check against ante dating or ante timing of the FIR to ensure that there is no manipulation or interpolation in the FIR. If the court finds the witnesses to be truthful and credible, the lack of a cogent explanation for the delay may not be regarded as detrimental. (Para 30)

Code of Criminal Procedure ,1973- Section 161– Statements under Section 161 CrPC are per se not evidence in the court. (Para 31)

Summary: Murder conviction of some of the accused upheld – Murder conviction of some other accused restored.

CrPC; S.82 [BNSS; S.528]-Criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves. (Para 31)

Code Of Criminal Procedure,1973; Section 173(8)- Where fresh materials come to light which would implicate persons not previously accused or absolve persons already accused or where it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, it may be the duty of the investigating agency to investigate the genuineness of the same and submit a report to the court-However, the further investigation cannot be permitted to do a fishing and roving enquiry when the police had already filed a charge-sheet. (Para 32-33)

Criminal Trial -Speedy Justice – The victims of crime, the accused, and the society at large have a legitimate expectation that justice will be available to the parties within a reasonable time. It is beyond cavil that speedy and timely justice is an important facet of rule of law. Denial of speedy and timely justice can be disastrous to rule of law in the long term. Even if the 31 parties involved in a case themselves, with no valid justification attempt to delay the proceedings, the courts need to be vigilant and nip any such attempt in the bud instantly. The administration of justice feeds on the faith of the citizenry and nothing should be done to even remotely shake that faith and confidence. (Para 45)- The legal profession has an important role to play in the process. Any proceeding or application which prima facie lacks merit should not be instituted in a court. (Para 46)

Indian Penal Code,1860; Section 34 [BNS 2023; Section 3(5)]– There cannot be a fixed timeframe for formation of common intention. It is not essential for the perpetrators to have had prior meetings to conspire or make preparations for the crime. Common intention to commit murder can arise even moments before the commission of the act. Since common intention is a mental state of the perpetrators, it is inherently challenging to substantiate directly. Instead, it can be inferred from the conduct of the perpetrators immediately before, during, and after the commission of the act. (Para 19)

Code Of Criminal Procedure,1973; Section 464(2) [BNSS 2023; Section 510]-In order to judge whether a failure of justice has been occasioned, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself- the burden to show that in fact a failure of justice has been occasioned is on the accused. (Para 25)

Indian Penal Code,1860; Section 34,149 [BNS 2023; Section 3(5),190]-Common intention and common object- Both the sections deal with combinations of persons who become punishable as sharers in an offence. Thus, they have a certain resemblance and may to some extent overlap – If the common object does not necessarily involve a common intention, then the substitution of Section 34 for Section 149 might result in prejudice to the accused and ought not, therefore, to be permitted. But if it does involve a common intention then the substitution of Section 34 for Section 149 must be held to be a formal matter. Whether such recourse can be had or not must depend on the facts of each case. The non-applicability of Section 149 is, therefore, no bar in convicting the appellants under Section 302 read with Section 34 IPC, if the evidence discloses commission of an offence in furtherance of the common intention of them all – Referred to Chittarmal vs. State of Rajasthan (2003) 2 SCC 266. (Para 21-22)

Criminal Trial -The sworn testimonies provided by injured witnesses generally carry significant evidentiary weight. Such testimonies cannot be dismissed as unreliable unless there are pellucid and substantial discrepancies or contradictions that undermine their credibility. If there is any exaggeration in the deposition that is immaterial to the case, such exaggeration should be disregarded; however, it does not warrant the rejection of the entire evidence. (Para 12) -examination of independent witness is not an indispensable requisite if the testimonies of other witnesses are deemed trustworthy and reliable. Non-examination of any independent witness by the prosecution will not go to the root of the matter affecting the decision of the court, unless other witnesses’ testimonies and evidences are scant to establish the guilt of the accused. (Para 29)

Code Of Criminal Procedure, 1973; Section 482-There is no prohibition against quashing of the criminal proceedings even after the charge sheet has been filed.- Referred to Anand Kumar Mohatta v. State (NCT of Delhi) (2019) 11 SCC 706. (Para 16)

Summary: High Court refused to quash the FIR- Allowing appeal, SC observed: The provocation for the Complaint/FIR is essentially the property dispute between father and son. Further, the rights and claims in the suit are the very basis and provocation for filing the criminal cases. The Complaint/FIR is replete with just one theme i.e. that the appellants are threatening them that they will deny share in the property. The Complaint/FIR is intended only to further their interest of the civil dispute- none of the ingredients of Sections 498A, 323, 504, 506 read with Section 34 IPC are made out.

Criminal Trial -A post mortem report is generally not considered as conclusive evidence of the facts mentioned in the re-port regarding the cause of death, time of death etc. It could always be corroborated with other direct evidence on record such as ocular evidence of the eye witnesses. However, when there is no other credible evidence on record to contradict the report, the facts stated in the post mortem report are generally taken as true (Para 30)- in a case based on circumstantial evidence, the chain of evidence must be complete and must give out an inescapable conclusion of guilt – motive has a bearing only when the evidence on record is sufficient to prove the ingredients of the offences under consideration. Without the proof of foundational facts, the case of the prosecution cannot succeed on the presence of motive alone(Para 35)-Ordinarily, there is no rule of law to discard the testimonies of the witnesses merely be-cause they were known to the victim or belonged to her family. For, an offence may be committed in circumstances that only the family members are present at the place of occurrence in natural course.(Para 24) -Motive has a bearing only when the evidence on record is sufficient to prove the ingredients of the offences under consideration. Without the proof of foundational facts, the case of the prosecution cannot succeed on the presence of motive alone. (Para 35)

Code Of Criminal Procedure,1973; Section 378– In order to reverse a finding of acquittal, a higher threshold is required. For, the presumption of innocence operating in favour of an accused through-out the trial gets concretized with a finding of acquittal by the Trial Court. Thus, such a finding could not be reversed merely because the possibility of an alternate view was alive. Rather, the view taken by the Trial Court must be held to be completely unsustainable and not a probable view. (Para 32)

Indian Evidence Act,1872; Section 27 [BSA,2023; Section 23(2)]- The word,“distinctly” used in Section 27 relates to the discovered fact. Only that much which relates to the discovery of a physical object is admissible. The rest of the testimony is to be excluded. The facts proved by the prosecution, particularly the admissible portion of the statement of the accused, would give rise to two alternative hypotheses, namely, (i) that the accused had himself deposited the physical items that were recovered; or (ii) only the accused knew that the physical items were lying at that place. The second hypothesis is wholly compatible with the innocence of the accused, whereas the first would be a factor to show the involvement of the accused in the offence. The court has to analyse which of the hypotheses should be accepted in a particular case. Further, a fact already known to the police is not admissible under Section 27 of the Evidence Act. (Para 13)

Criminal Trial – Circumstantial Evidence- Referred to Sharad Birdhichand Sharda v. State of Maharasthra- Five essential principles, often referred to as the “golden rules”, which must be satisfied for circumstantial evidence to conclusively establish the guilt of the accused: “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. xxx xxx xxx (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

POCSO Act, 2012; Section 15– Wherever a person indulges in any activity such as viewing, distributing or displaying etc. pertaining to any child pornographic material without actually possessing or storing it in any device or in any form or manner, such act would still tantamount to ‘possession’ in terms of Section 15 of the POCSO, if he exercised an invariable degree of control over such material, applying the aforesaid doctrine of constructive possession. If ‘A’ routinely watches child pornography over the internet, but never downloads or stores the same in his mobile. Here ‘A’ would still be said to be in possession of such material, as while watching he exercises a considerable degree of control over such material including but not limited to sharing, deleting, enlarging such material, changing the volume etc. Furthermore, since he himself on his own volition is viewing such material, he is said to have knowledge of having control over such material. But if ‘A’ is sent an unknown link by ‘B’, which upon clicking opened a child pornographic video on the phone of ‘A’. Here although ‘A’ at the time of opening the link had control over the said link, yet he cannot be said to have a knowledge of that control over such material as he at that relevant point of time was unaware as to what would open from the said link; thus ‘A’ cannot be said to be in possession. This is because, ‘A’ had no information as to what the link pertained to, in order to have knowledge of control over such material, a person requires reasonable information such as what is involved in the material in question, what is the purpose of such material, etc. Without such information no person can decide whether he wants to view it, or delete it or further forward it i.e., he cannot effectively exercise the control that he has, without a certain degree of knowledge. However, if ‘A’ rather than closing the link in a reasonable time, continues to view such material he would be deemed to be in possession of such material. This is because, after a reasonable window of time, he would be said to have sufficient information about such material to have knowledge for the effective exercise of his control over such material. (Para 118-121)

POCSO Act, 2012; Section 15– Section 15 of the POCSO provides for three distinct offences that penalize either the storage or the possession of any child pornographic material when done with any particular intention specified under subsection(s) (1), (2) or (3) respectively. It is in the nature and form of an inchoate offence which penalizes the mere storage or possession of any pornographic material involving a child when done with a specific intent prescribed thereunder, without requiring any actual transmission, dissemination etc. (II) Sub-section (1) of Section 15 penalizes the failure to delete, destroy or report any child pornographic material that has been found to be stored or in possession of any person with an intention to share or transmit the same. The mens-rea or the intention required under this provision is to be gathered from the actus reus itself i.e., it must be determined from the manner in which such material is stored or possessed and the circumstances in which the same was not deleted, destroyed or reported. To constitute an offence under this provision the circumstances must sufficiently indicate the intention on the part of the accused to share or transmit such material. (III) Section 15 sub-section (2) penalizes both the actual transmission, propagation, display or distribution of any child pornography as-well as the facilitation of any of the abovementioned acts. To constitute an offence under Section 15 sub-section (2) apart from the storage or possession of such pornographic material, there must be something more to show i.e., either (I) the actual transmission, propagation, display or distribution of such material OR (II) the facilitation of any transmission, propagation, display or distribution of such material, such as any form of preparation or setup done that would enable that person to transmit it or to display it. The mens rea is to be gathered from the manner in which the pornographic material was found to be stored or in possession and any other material apart from such possession or storage that is indicative of any facilitation or actual transmission, propagation, display or distribution of such material. (IV) Section 15 sub-section (3) penalizes the storage or possession of any child pornographic material when done for any commercial purpose. To establish an offence under Section 15 sub-section (3), besides the storage or possession of the pornographic material involving a child, there must be some additional material or attending circumstances that may sufficiently indicate that the said storage or possession was done with the intent to derive any gain or benefit. To constitute an offence under sub-section (3) there is no requirement to establish that such gain or benefit had been actually realized- Sub-section(s) (1), (2) and (3) respectively of Section 15 constitute independent and distinct offences. The three offences cannot coexist simultaneously in the same set of facts. They are distinct from each other and are not intertwined. This is because, the underlying distinction between the three sub-sections of Section 15 lies in the varying degree of culpable mens rea that is required under each of the three provisions. (Para 223-I-V)

POCSO Act, 2012; Section 30- The statutory presumption of culpable mental state on the part of the accused as envisaged under Section 30 of the POCSO can be made applicable provided the prosecution is able to establish the foundational facts necessary to constitute a particular offence under the POCSO that may have been alleged against the accused. Such presumption can be rebutted by the accused either by discrediting the prosecution’s case or by leading evidence to prove the contrary, beyond a reasonable doubt.(Para 222) The foundational facts necessary for the purpose of invoking the statutory presumption of culpable mental state for an offence under Section 15 of POCSO are as follows: – (a) For the purpose of sub-section (1), the necessary foundational facts that the prosecution may have to first establish is the storage or possession of any child pornographic material and that the person accused had failed to delete, destroy or report the same. (b) In order to invoke the statutory presumption of culpable mental state for an offence under sub-section (2) the prosecution would be required to first establish the storage or possession of any child pornographic material, and also any other fact to indicate either the actual transmission, propagation, display or distribution of any such material or any form of an overt act such as preparation or setup done for the facilitation of the transmission, propagation, display or distribution of such material, whereafter it shall be presumed by the court that the said act was done with the intent of transmitting, displaying, propagating or distributing such material and that the said act(s) had not been done for the purpose of either reporting or for use as evidence. (c) For the purpose of sub-section (3) the prosecution must establish the storage or possession of such material and further prove any fact that might indicate that the same had been done to derive some form of gain or benefit or the expectation of some gain or benefit. (Para 223-X,XI)

Code Of Criminal Procedure,1973; Section 482 – POCSO Act, 2012; Section 30 – The statutory presumption of culpable mental under Section 30 of POCSO can be made applicable in a quashing proceeding pertaining to any offence under the POCSO.(Para 222)

Information Technology Act,2000; Section 67B– Comprehensive provision designed to address and penalize the various electronic forms of exploitation and abuse of children online. It not only punishes the electronic dissemination of child pornographic material, but also the creation, possession, propagation and consumption of such material as-well as the different types of direct and indirect acts of online sexual denigration and exploitation of the vulnerable age of children. Section(s) 67, 67A and 67B respectively of the IT Act being a complete code, ought to be interpreted in a purposive manner that suppresses the mischief and advances the remedy and ensures that the legislative intent of penalizing the various forms of cyber-offences relating to children and the use of obscene / pornographic material through electronic means is not defeated by a narrow construction of these provisions. (Para 223-IX)

Suggestions: (i) The Parliament should seriously consider to bring about an amendment to the POCSO for the purpose of substituting the term “child pornography” that with “child sexual exploitative and abuse material” (CSEAM) with a view to reflect more accurately on the reality of such offences. The Union of India, in the meantime may consider to bring about the suggested amendment to the POCSO by way of an ordinance. (ii) We put the courts to notice that the term “child pornography” shall not be used in any judicial order or judgment, and instead the term “child sexual exploitative and abuse material” (CSEAM) should be endorsed. (iii) Implementing comprehensive sex education programs that include information about the legal and ethical ramifications of child pornography can help deter potential offenders. These programs should address common misconceptions and provide young people with a clear understanding of consent and the impact of exploitation. (iv) Providing support services to the victims and rehabilitation programs for the offenders is essential. These services should include psychological counselling, therapeutic interventions, and educational support to address the underlying issues and promote healthy development. For those already involved in viewing or distributing child pornography, CBT has proven effective in addressing the cognitive distortions that fuel such behaviour. Therapy programs should focus on developing empathy, understanding the harm caused to victims, and altering problematic thought patterns. (v) Raising awareness about the realities of child sexual exploitative material and its consequences through public campaigns can help reduce its prevalence. These campaigns should aim to destigmatize reporting and encourage community vigilance. (vi) Identifying at-risk individuals early and implementing intervention strategies for youth with problematic sexual behaviours (PSB) involves several steps and requires a coordinated effort among various stakeholders, including educators, healthcare providers, law enforcement, and child welfare services. Educators, healthcare professionals, and law enforcement officers should be imparted training to identify signs of PSB. Awareness programs can help these professionals recognize early warning signs and understand how to respond appropriately. (vii) Schools can also play a crucial role in early identification and intervention. Implementing school-based programs that educate students about healthy relationships, consent, and appropriate behaviour can help prevent PSB. (viii) To give meaningful effect to the above suggestions and work out the necessary modalities, the Union of India may consider constituting an Expert Committee tasked with devising a comprehensive program or mechanism for health and sex education, as well as raising awareness about the POCSO among children across the country from an early age, for ensuring a robust and well-informed approach to child protection, education, and sexual well-being. (Para 260)

Code Of Criminal Procedure, 1973; Section 482 – High Court in exercise of its inherent powers under Section(s) 482 of the Cr.P.C. or 530 of the BNSS as the case must not conduct a mini trial or go into the truthfulness of the allegations while dealing with a quashing petition. The High Court may be justified in quashing the chargesheet if it appears to it that continuance of criminal proceedings would be nothing but gross abuse of the process of law. (Para 197) When dealing with a quashing petition, there lies a duty on the High Court to properly apply its mind to all the material on record. The least which is expected of High Court in such situation is to carefully go through the allegations contained in the FIR and the charge-sheet, and to ascertain (i) whether, the offences alleged therein could be said to have been prima facie established from the material on record? or (ii) whether, apart from the offences alleged in the FIR or the charge-sheet, there is possibility of any other offence prima facie being made out? The High Court in exercise of its inherent powers, may be justified in quashing the criminal proceedings only where, neither any offence as alleged in the FIR or charge-sheet is disclosed nor any other offence is prima facie made out, and the continuance of the proceedings may be found to amount to abuse of process of law. (Para 202)

Inchoate crimes– Inchoate crimes, are often referred to and described as an incomplete or preliminary offence, that capture the essence of criminal intent and the preparatory actions that precede the commission of a criminal act. The principle is that the law does not merely respond to offences already committed but also intervenes when a crime is in the process of being committed, thus thereby protecting public order and safety- Doctrine of constructive possession – For establishing constructive possession both the power to control the material in question and the knowledge of exercise of such control are required. The doctrine of constructive possession, is a crucial development in the criminal jurisprudence, especially pertaining to inchoate crimes where possession is sought to be punished, as it ensures that no person can evade liability by simply distancing themselves from the physical possession of contraband while retaining the ability to control it. (Para 117)

Criminal Trial –Four-prong test wherein for a valid defence, there must exist (1) an ignorance or unawareness of any law and (2) such ignorance or unawareness must give rise to a corresponding reasonable and legitimate right or claim (3) the existence of such right or claim must be believed bonafide and (4) the purported act sought to be punished must take place on the strength of such right or claim. It is only when all the four of the above conditions are fulfilled, that the person would be entitled to take a plea of ignorance of law as a defence from incurring any liability -Such a plea is not a statutory defence with any legal backing, but rather a by-product of the doctrine of equity. Whether such a defence is to be accepted or not, largely depends upon the extant of equity in the peculiar facts and circumstances of each individual cases- Equity cannot supplant the law, equity has to follow the law if the law is clear and unambiguous. (Para 211,215)

Code Of Criminal Procedure, 1973; Section 378,386 [BNSS, 2013; Sections 419,427]- The power of the appellate Court while dealing with an appeal against a judgment of acquittal -(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasize the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court – It would be essential for the High Court, in an appeal against acquittal, to clearly indicate firm and weighty grounds from the record for discarding the reasons of the Trial Court in order to be able to reach a contrary conclusion of guilt of the accused- It would not be legally sufficient for the High Court to take a contrary view about the credibility of witnesses and it is absolutely imperative that the High Court convincingly finds it well-nigh impossible for the Trial Court to reject their testimony.

Negotiable Instruments Act,1881- Section 138,147 –An offence under Section 138, N.I. Act could be compounded under Section 147 thereof, only with the consent of the complainant concerned’ . (Para 17)

Code of Criminal Procedure,1973- Section 482 – Merely because, in Raj Reddy Kallem v. The State of Haryana & Anr. 2024 INSC 347, SC ‘quashed’ the proceedings by invocation of the power under Article 142 of the Constitution of India, cannot be a reason for ‘compounding’ an offence under Section 138, N.I. Act, invoking the power under Section 482, Cr.P.C. and the power under Section 147, N.I. Act, in the absence of consent of the complainant concerned. (Para 18)

Summary: Bail granted to Arvind Kejriwal in CBI Case – Conditions imposed including: He shall not make any public comments on the merits of the CBI case, it being sub judice before the Trial Court. This condition is necessitated to dissuade a recent tendency of building a self-serving narrative on public platforms- Justice Surya Kant held that the arrest of by CBI does not suffer with any procedural infirmity and therefore dismissed the appeal challenging the legality of arrest- But Justice Ujjal Bhuyan clearly held that belated arrest by CBI is unjustified and therefore clarified the impugned judgment to that extent- However, the operative order signed by both judges says that the Criminal Appeal challenging the legality of arrest is dismissed.

Indian Evidence Act, 1872; Section 132 [BNSS,2023; Section 137]- The qualified privilege under the proviso to Section 132 of the Act does not grant complete immunity from prosecution to a person who has deposed as a witness (and made statements incriminating himself)- The only protection available is, a witness cannot be subjected to prosecution on the basis of his own statement. It nowhere provides that there is complete and unfettered immunity to a person even if there is other substantial evidence or material against him proving his prima facie involvement. If this complete immunity is read under the proviso to Section 132 of the Act, an influential person with the help of a dishonest Investigating Officer will provide a legal shield to him by examining him as a witness even though his complicity in the offence is writ large on the basis of the material available in the case. (Para 20-25) -No prosecution can be launched against the maker of a statement falling within the sweep of Section 132 of the Act on the basis of the “answer” given by a person while deposing as a “witness” before a Court – Referred to R. Dinesh Kumar alias Deena v. State (2015) 7 SCC 497 (Para 16) -Section 132 of the Act is a necessary corollary to the principle enshrined under Article 20(3) of the Constitution of India which confers a fundamental right that “no person accused of any offence shall be compelled to be a witness against himself”-The purpose for granting such a statutory immunity was to enable the court to reach a just conclusion (and thus assisting the process of law). (Para 14-15)

Code Of Criminal Procedure, 1973; Section 319- What is the course available to a Court, which in the course of trial is confronted with evidence, other than the statement of the witness (against whom incriminating material is available)? Whether the Court can rely upon the statement of the witness for invoking the provisions of Section 319 Cr.P.C? Whether reference to any statement tendered by the witness would vitiate the order under Section 319 Cr.P.C? There cannot be an absolute embargo on the Trial Court to initiate process under Section 319 Cr.P.C., merely because a person, who though appears to be complicit has deposed as a witness. The finding to invoke Section 319 Cr.P.C., must be based on the evidence that has come up during the course of Trial. There must be additional, cogent material before the Trial Court apart from the statement of the witness. An order for initiation of process under Section 319 Cr.P.C against a witness, who has deposed in the trial and has tendered evidence incriminating himself, would be tested on the anvil that whether only such incriminating statement has formed the basis of the order under Section 319 Cr.P.C. At the same time, mere reference to such statement would not vitiate the order. The test would be as to whether, even if the statement of witness is removed from consideration, whether on the basis of other incriminating material, the Court could have proceeded under Section 319 Cr.P.C. (Para 21-22)

Code Of Criminal Procedure, 1973; Section 319- The order of conviction in the case of some of the accused and the order of acquittal in the case of the other accused was passed in the first half of the day. In the second half, the Court first passed an order for sentencing of the persons who were convicted and only thereafter passed an order under Section 319 of Cr.P.C. for summoning the present appellant- if such a summoning order is passed, either after the order of acquittal or imposing of sentence in the conviction, the same may not be sustainable- Followed Sukhpal Singh Khaira vs. State of Punjab [2022] 10 S.C.R. 156:: 2022 INSC 1252

Code Of Criminal Procedure, 1973; Section 438 – [BNSS,2023; Section 482]– An accused is entitled to seek anticipatory bail in connection with an offence so long as he is not arrested in relation to that offence. Once he is arrested, the only remedy available to him is to apply for regular bail either under Section 437 or Section 439 of the CrPC, as the case may be- There is no express or implied restriction in the CrPC or in any other statute that prohibits the Court of Session or the High Court from entertaining and deciding an anticipatory bail application in relation to an offence, while the applicant is in custody in relation to a different offence. No restriction can be read into Section 438 of the CrPC to preclude an accused from applying for anticipatory bail in relation to an offence while he is in custody in a different offence, as that would be against the purport of the provision and the intent of the legislature. The only restriction on the power of the court to grant anticipatory bail under Section 438 of the CrPC is the one prescribed under sub-section (4) of Section 438 of the CrPC, and in other statutes like the Act, 1989, etc- While a person already in custody in connection with a particular offence apprehends arrest in a different offence, then, the subsequent offence is a separate offence for all practical purposes. This would necessarily imply that all rights conferred by the statute on the accused as well as the investigating agency in relation to the subsequent offence are independently protected – The investigating agency, if it deems necessary for the purpose of interrogation/investigation in an offence, can seek remand of the accused whilst he is in custody in connection with a previous offence so long as no order granting anticipatory bail has been passed in relation to the subsequent offence. However, if an order granting anticipatory bail in relation to the subsequent offence is obtained by the accused, it shall no longer be open to the investigating agency to seek remand of the accused in relation to the subsequent offence. Similarly, if an order of police remand is passed before the accused is able to obtain anticipatory bail, it would thereafter not be open to the accused to seek anticipatory bail and the only option available to him would be to seek regular bail- The right of an accused to protect his personal liberty within the contours of Article 21 of the Constitution of India with the aid of the provision of anticipatory bail as enshrined under Section 438 of the CrPC cannot be defeated or thwarted without a valid procedure established by law- Such procedure should also pass the test of fairness, reasonableness and manifest non-arbitrariness on the anvil of Article 14 of the Constitution of India – Under Section 438 of the CrPC, the pre-condition for a person to apply for pre-arrest bail is a “reason to believe that he may be arrested on an accusation of having committed a non-bailable offence”. Therefore, the only pre-condition for exercising the said right is the apprehension of the accused that he is likely to be arrested- custody in one case does not have the effect of taking away the apprehension of arrest in a different case -(Para 60) -Distinguished Narinderjit Singh Sahni v. Union of India, [2001] Supp. 4 SCR 114, (2002) 2 SCC 210 :

Code Of Criminal Procedure, 1973; Section 46– Arrest involves actual touch or confinement of the body of the person sought to be arrested. However, arrest can also be effected without actual touch if the person sought to be arrested submits to the custody by words or action-The actual seizing or touching of the body of the person to be arrested is not necessary in a case where the arrester by word brings to the notice of the accused that he is under compulsion and thereafter the accused submits to that compulsion. This is in conformity with the modality of the arrest contemplated under Section 46 of the CrPC wherein also it is provided that the submission of a person to be arrested to the custody of the arrester by word or action can amount to an arrest. The essence is: There must be an actual seizing or touching, and in the absence of that, it must be brought to the notice of the person to be arrested that he is under compulsion, and as a result of such notice, the said person should submit to that compulsion, and then only the arrest is consummated. (Para 46-51)

Code Of Criminal Procedure, 1973; Section 267-Although Section 267 of the CrPC cannot be invoked to enable production of the accused before the investigating agency, yet it can undoubtedly be invoked to require production of the accused before the jurisdictional Magistrate, who can thereafter remand him to the custody of the investigating agency. (Para 52)

Code Of Criminal Procedure, 1973; Section 438 – [BNSS,2023; Section 482]– Principles of law as regards the grant of anticipatory bail summarized – Gurbaksh Singh Sibbia v. State of Punjab, [1980] 3 SCR 383, (1980) 2 SCC 565: i. The applicant must genuinely show the “reason to believe” that he may be arrested for a non-bailable offence. Mere fear is not belief and the grounds on which the belief of the applicant is based must be capable of being examined by the Court objectively. Specific events and facts must be disclosed to enable the Court to judge the reasonableness of belief or likelihood of arrest, the existence of which is the sine qua non in the exercise of the power to grant anticipatory bail. ii. The High Court or the Court of Session must apply its mind to the question of anticipatory bail and should not leave it to the discretion of the Magistrate under Section 437 CrPC. iii. Filing of the FIR is not a condition precedent. However, imminence of a likely arrest founded on the reasonable belief must be shown. iv. Anticipatory bail can be granted so long as the applicant is not arrested in connection with that case/offence. v. Section 438 of the CrPC cannot be invoked by the accused in respect of the offence(s)/case in which he has been arrested. The remedy lies under Section 437 or 439 of the CrPC, as the case may be, for the offence for which he is arrested. vi. The normal rule is to not limit the operation of the order in relation to a period of time. (Para 32) –Sushila Aggarwal v. State (NCT of Delhi), [2020] 2 SCR 1, (2020) 5 SCC 1: i. An application for anticipatory bail should be based on concrete facts (and not vague or general allegations). It is not essential that an application should be moved only after an FIR is filed. ii. It is advisable to issue a notice on the anticipatory bail application to the Public Prosecutor. iii. Nothing in Section 438 of the CrPC compels or obliges courts to impose conditions limiting relief in terms of time. The courts would be justified – and ought to impose conditions spelt out in Section 437(3) of the CrPC [by virtue of Section 438(2)]. The need to impose other restrictive conditions would have to be judged on a case-tocase basis. iv. Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail or not. v. Once granted, Anticipatory bail can, depending on the conduct and behaviour of the accused, continue after filing of the chargesheet till the end of trial. vi. An order of anticipatory bail should not be a “blanket” order and should be confined to a specific incident. vii. An order of anticipatory bail does not limit the rights of the police to conduct investigation. viii. The observations in Gurbaksh Singh Sibbia (supra) regarding “limited custody” or “deemed custody” would be sufficient for the purpose of fulfilling the provisions of Section 27 of the Indian Evidence Act, 1872. ix. The police can seek cancellation of anticipatory bail under Section 439(2) of the CrPC. x. The correctness of an order granting bail can be considered by the appellate or superior court. – The court, on its own, should not try to read any other restriction as regards the exercise of its power to consider the plea for grant of anticipatory bail. Wherever parliament intends or desires to exclude or restrict the power of courts, it does so in categorical terms. This is very much evident from the plain reading of sub-section (4) of Section 438 of the CrPC itself. The dictum as laid is that the court should not read any blanket restriction nor should it insist for some inflexible guidelines as that would amount to judicial legislation. (Para 35-36)

Constitution of India, 1950; Article 142 – Code Of Criminal Procedure, 1973; Section 320, 482- Courts cannot grant permission to compound the noncompoundable offences, on the basis of any sort of compromise between the parties, as it would be contrary to what has been provided by legislation, except the High Court under Section 482 of Cr.PC and the Apex Court in exercise of its powers under Article 142 of the Constitution of India. [In this case, the court invoked Article 142 as the appellants and complainant side are close relatives and after settling their disputes, both sides have agreed to maintain peace and harmony in the society.]. – Referred to Ramgopal & Anr. v. State of M.P (2022) 14 SCC 531 (Para 6-7)

Code Of Criminal Procedure,1973; Section 154-176 –Mere registration of FIR cannot be interpreted to mean that it constitutes the initiation of such proceedings. A registration of FIR necessitates an investigation by a competent officer as per the detailed process outlined in Sections 155 to 176. It is only after a Final Report (or as referred in the common parlance, a Challan or a Chargesheet) is submitted as per the compliance of Section 173(2) of CrPC 1973, cognizance for the offence(s) concerned is taken. However, undoubtedly, the Court is not bound by the said report. The cardinal principle that investigation and taking of cognizance operate in parallel channels, without an intermingling, and in different areas – Referred to H.N. Rishbud v. State (Delhi Admn.) (1954) 2 SCC 934 , Abhinandan Jha v. Dinesh Mishra 1967 SCC OnLine SC 107 and State of Orissa v. Habibullah Khan 2003 SCC OnLine SC 1411. (Para 19)

Code Of Criminal Procedure,1973; Section 311 [BNSS,2023; Section 348] – Section 311 CrPC operates in two parts, the first part clothes the Court with a power to summon or examine any person in attendance or recall or re-examine any person already examined. The second part mandates that the Court shall summon and examine or recall and re-examine such person, if his evidence appears to be essential to the just decision of the case. Thus, first part of section gives a discretionary power to the Court to summon any person as a witness or to recall or re-examine the person already examined. Such a course of action is only permissible if the Court is satisfied that the prayer to recall and reexamine the witness is not made to fill in the lacuna and that the nonsummoning of the witnesses would cause a serious prejudice to the accused – Referred to Rajaram Prasad Yadav vs State of Bihar (2013) 4 SCC 461. (Para 7) [In this case, other than a vague aspersion that the erstwhile lawyer engaged by the petitioners did not conduct proper cross-examination of the witnesses, no such specific ground was alluded on behalf of the accused petitioners which could be considered to be a valid ground for the trial Court to invoke the power under Section 311 CrPC]

Code Of Criminal Procedure,1973; Section 482 -Whether quashing of the FIR can be refused for no other reason than that the investigating officer has filed the charge-sheet? High Court under Section 482, Cr. PC. retains the power to quash an FIR, even after charge-sheet under Section 173(2) thereof is filed, provided a satisfaction is reached, inter alia, that either the FIR and the charge-sheet read together, even accepted as true and correct without rebuttal, does not disclose commission of any offence or that continuation of proceedings arising out of such an FIR would in fact be an abuse of the process of law as well as of the Court given the peculiar circumstances of each particular case- Referred to Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 479 , Anand Kumar Mohatta vs State (Govt. of NCT of Delhi) Home Department (2019) 11 SCC 706 and Abhishek vs. State of Madhya Pradesh 2023 SCC OnLine SC 108. (Para 7-8)

Code Of Criminal Procedure, 1973; Section 216,227- Section 216 is an enabling provision which enables the court to alter or add to any charge at any time before judgment is pronounced, and if any alternation or addition to a charge is made, the court has to follow the procedure as contained therein. Section 216 does not give any right to the accused to file a fresh application seeking his discharge after the charge is framed by the court, more particularly when his application seeking discharge under Section 227 has already been dismissed. Unfortunately, such applications are being filed in the trial courts sometimes in ignorance of law and sometimes deliberately to delay the proceedings. Once such applications though untenable are filed, the trial courts have no alternative but to decide them, and then again such orders would be challenged before the higher courts, and the whole criminal trial would get derailed- Such practice is highly deplorable, and if followed, should be dealt with sternly by the courts. (Para 11)

Code Of Criminal Procedure, 1973; Section 216,397– The order dismissing application seeking modification of charge would be an interlocutory order and in view of the express bar contained in sub-section (2) of Section 397 Cr.P.C., the Revision Application itself is not maintainable. (Para 8)

Code Of Criminal Procedure, 1973; Section 397-The Court exercising Revisional Jurisdiction under Section 397 should be extremely circumspect in interfering with the order framing the charge, and could not have interfered with the order passed by the Trial Court dismissing the application for modification of the charge under Section 216 Cr.P.C., which order otherwise would fall in the category of an interlocutory order – scope of interference and exercise of jurisdiction under Section 397 Cr.P.C. is extremely limited. Apart from the fact that subsection 2 of Section 397 prohibits the Court from exercising the powers of Revision, even the powers under sub-section 1 thereof should be exercised very sparingly and only where the decision under challenge is grossly erroneous, or there is non-compliance of the provisions of law, or the finding recorded by the trial court is based on no evidence, or material evidence is ignored or judicial discretion is exercised arbitrarily or perversely by framing the charge. (Para 10)

Code Of Criminal Procedure,1973; Section 439- Courts while granting bail are required to consider relevant factors such as nature of the accusation, role ascribed to the accused concerned, possibilities/chances of tampering with the evidence and/or witnesses, antecedents, flight risk et al. (Para 19) -. In cases where the allegations coupled with the materials brought on record by the investigation and in the nature of economic offence affecting a large number of people reveal the active role of the accused seeking anticipatory or regular bail, it would be fit for the Court granting such bail to impose appropriately strict and additional conditions. (Para 25)- At the end of the day, the interests of the victims of the scam have also to be factored in.

Indian Penal Code,1860; Section 307 – A conviction under Section 307 of the IPC may be justified only if the accused in question possessed intent coupled with some overt act in aid of its execution. Ascertaining the intention to kill or having the knowledge that death may be caused as a result of the overt act, is a question of fact and hinges on the unique circumstances that each case may present. (Para 17)

Criminal Trial – Usually in matters involving criminality, discrepancies are bound to be there in the account given by a witness, especially when there is conspicuous disparity between the date of the incident and the time of deposition. However, if the discrepancies are such that they create serious doubt on the veracity of a witness, then the Court may deduce and decline to rely on such evidence. This is especially true when there are variations in the evidence tendered by prosecution witnesses regarding the sequence of events as they have occurred. Courts must exercise all the more care and conscientiousness when such oral evidence may lean towards falsely implicating innocent persons. (Para 13) –Circumstantial Evidence – The chain of evidence proffered by the prosecution has to be as complete as is humanly possible and it does not leave any reasonable ground for a conclusion consistent with the innocence of the accused and must instead, indicate that the act had indeed been singularly committed by the accused only. (Para 15)

Code Of Criminal Procedure,1973; Section 378 – When the Trial Court has acquitted the accused based on a plausible understanding of the evidence, and such finding is not marred by perversity or due to overlooking or misreading of the evidence presented by the prosecution, the High Court ought not to overturn such an order of acquittal. (Para 16)

Constitution of India,1950; Article 136– Article 136 can be invoked by a party in a petition for special leave to appeal from any judgement, decree, determination, sentence or order in any cause or matter passed or made by a Court or Tribunal within the territory of India. The reach of the extraordinary powers vested in this Court under Article 136 of the Constitution of India is boundless. Such unbridled powers have been vested in Court, not just to prevent the abuse of the process of any court or to secure the ends of justice as contemplated in Section 482, Cr.P.C, but to ensure dispensation of justice, correct errors of law, safeguard fundamental rights, exercise judicial review, resolve conflicting decisions, inject consistency in the legal system by settling precedents and for myriad other to undo injustice, wherever noticed and promote the cause of justice at every level. The fetters on this power are self imposed and carefully tampered with sound judicial discretion. (Para 19.6)

Code Of Criminal Procedure,1973; Section 482– Section 482 Cr.P.C recognizes the inherent powers of the High Court to quash initiation of prosecution against the accused to pass such orders as may be considered necessary to give effect to any order under the Cr.P.C or to prevent abuse of the process of any court or otherwise to secure the ends of justice. It is a statutory power vested in the High Court to quash such criminal proceedings that would dislodge the charges levelled against the accused and based on the material produced, lead to a firm opinion that the assertions contained in the charges levelled by the prosecution deserve to be overruled. 18.8 While exercising the powers vested in the High Court under Section 482, Cr.P.C, whether at the stage of issuing process or at the stage of committal or even at the stage of framing of charges, which are all stages that are prior to commencement of the actual trial, the test to be applied is that the Court must be fully satisfied that the material produced by the accused would lead to a conclusion that their defence is based on sound, reasonable and indubitable facts. The material relied on by the accused should also be such that would persuade a reasonable person to dismiss the accusations levelled against them as false. (Para 18.7-18.8)

Code Of Criminal Procedure,1973; Section 227– The expression “not sufficient ground for proceeding against the accused” clearly shows that the Judge is not a mere post office to frame the charge at the behest of the prosecution. The Judge must exercise the judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. The principles governing the scope of Section 227, Cr.P.C. – Referred to Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4. (Para 20.2)

Constitution of India,1950; Article 149- CAG Report is subject to scrutiny by the Parliament and the Government can always offer its views on the said report. Merely because the CAG is an independent constitutional functionary does not mean that after receiving a report from it and on the PAC scrutinizing the same and submitting its report, the Parliament will automatically accept the said report. The Parliament may agree or disagree with the Report. It may accept it as it is or in part. [In this case, the Audit Report of the CAG has not been tabled before the Parliament for soliciting any comments from the PAC or the respective Ministries. Therefore, the views taken by the CAG to the effect that tremendous loss had been caused to the public exchequer on account of the coal rejects being disposed of by the KPCL and KECML remains a view point but cannot be accepted as decisive. ] (Para 11.2-11.5)

Indian Penal Code,1860; Section 406, 415, 420-The offences of criminal breach of trust (Section 406 IPC) and cheating (Section 420 IPC) have specific ingredients. In order to constitute a criminal breach of trust (Section 406 IPC): – 1) There must be entrustment with person for property or dominion over the property, and 2) The person entrusted: – a) dishonestly misappropriated or converted property to his own use, or b) dishonestly used or disposed of the property or willfully suffers any other person so to do in violation of: i. any direction of law prescribing the method in which the trust is discharged; or ii. legal contract touching the discharge of trust (see: S.W.P. Palanitkar (supra). Similarly, in respect of an offence under Section 420 IPC, the essential ingredients are: – 1) deception of any person, either by making a false or misleading representation or by other action or by omission; 2) fraudulently or dishonestly inducing any person to deliver any property, or 3) the consent that any persons shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit (see: Harmanpreet Singh Ahluwalia v. State of Punjab, (2009) 7 SCC 712 : (2009) Cr.L.J. 3462 (SC))-In both the aforesaid sections, mens rea i.e. intention to defraud or the dishonest intention must be present, and in the case of cheating it must be there from the very beginning or inception. (Para 25-26) – If it is a case of the complainant that offence of criminal breach of trust as defined under Section 405 of IPC, punishable under Section 406 of IPC, is committed by the accused, then in the same breath it cannot be said that the accused has also committed the offence of cheating as defined and explained in Section 415 of the IPC, punishable under Section 420 of the IPC. (Para 27)- The case of cheating and dishonest intention starts with the very inception of the transaction. But in the case of criminal breach of trust, a person who comes into possession of the movable property and receives it legally, but illegally retains it or converts it to his own use against the terms of the contract, then the question is, in a case like this, whether the retention is with dishonest intention or not, whether the retention involves criminal breach of trust or only a civil liability would depend upon the facts of each case. (Para 29) – The distinction between mere breach of contract and the offence of criminal breach of trust and cheating is a fine one. In case of cheating, the intention of the accused at the time of inducement should be looked into which may be judged by a subsequent conduct, but for this, the subsequent conduct is not the sole test. Mere breach of contract cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right from the beginning of the ransaction i.e. the time when the offence is said to have been committed. Therefore, it is this intention, which is the gist of the offence. Whereas, for the criminal breach of trust, the property must have been entrusted to the accused or he must have dominion over it. The property in respect of which the offence of breach of trust has been committed must be either the property of some person other than the accused or the beneficial interest in or ownership’ of it must be of some other person. The accused must hold that property on trust of such other person. Although the offence, i.e. the offence of breach of trust and cheating involve dishonest intention, yet they are mutually exclusive and different in basic concept. There is a distinction between criminal breach of trust and cheating. For cheating, criminal intention is necessary at the time of making a false or misleading representation i.e., since inception. In criminal breach of trust, mere proof of entrustment is sufficient. Thus, in case of criminal breach of trust, the offender is lawfully entrusted with the property, and he dishonestly misappropriated the same. Whereas, in case of cheating, the offender fraudulently or dishonestly induces a person by deceiving him to deliver any property. In such a situation, both the offences cannot co-exist simultaneously. (Para 30)

Code Of Criminal Procedure, 1973; Section 204 -Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. [Referred to Pepsi Foods Ltd. v. Special Judicial Magistrate : (1998) 5 SCC 749] (Para 13)

Code Of Criminal Procedure, 1973; Section 482– A petition filed under Section 482, CrPC, for quashing an order summoning the accused is maintainable. There cannot be any doubt that once it is held that sine qua non for exercise of the power to issue summons is the subjective satisfaction “on the ground for proceeding further” while exercising the power to consider the legality of a summons issued by a Magistrate, certainly it is the duty of the Court to look into the question as to whether the learned Magistrate had applied his mind to form an opinion as to the existence of sufficient ground for proceeding further and in that regard to issue summons to face the trial for the offence concerned. (Para 22)

Indian Penal Code,1860; Section 406 – In case of sale of goods, the property passes to the purchaser from the seller when the goods are delivered. Once the property in the goods passes to the purchaser, it cannot be said that the purchaser was entrusted with the property of the seller. Without entrustment of property, there cannot be any criminal breach of trust. Thus, prosecution of cases on charge of criminal breach of trust, for failure to pay the consideration amount in case of sale of goods is flawed to the core. There can be civil remedy for the non-payment of the consideration amount, but no criminal case will be maintainable for it. (Para 36)

SC-ST (Prevention Of Atrocities) Act,1989; Section 3(1)(r) – Mere knowledge of the fact that the victim is a member of the Scheduled Caste or Scheduled Tribe is not sufficient to attract Section 3(1)(r) of the Act, 1989. The offence must have been committed against the person on the ground or for the reason that such person is a member of Scheduled Caste or Scheduled Tribe. (Para 80) -all insults or intimidations to a member of the Scheduled Caste or Scheduled Tribe will not amount to an offence under the Act, 1989 unless such insult or intimidation is on the ground that the victim belongsto Scheduled Caste or Scheduled Tribe. (Para 58) – The words “with intent to humiliate” as they appear in the text of Section 3(1)(r) of the Act, 1989 are inextricably linked to the caste identity of the person who is subjected to intentional insult or intimidation. Not every intentional insult or intimidation of a member of a SC/ST community will result into a feeling of caste-based humiliation. It is only in those cases where the intentional insult or intimidation takes place either due to the prevailing practice of untouchability or to reinforce the historically entrenched ideas like the superiority of the “upper castes” over the “lower castes/untouchables”, the notions of ‘purity’ and ‘pollution’, etc. that it could be said to be an insult or intimidation of the type envisaged by the Act, 1989.(Para 61) – The term ‘humiliation’ as it appears in Section 3(1)(r) of the Act, 1989 must be construed, that is, in a way that it deprecates the infliction of humiliation against members of the Scheduled Castes and Scheduled Tribes wherein such humiliation is intricately associated with the caste identity of such members. (Para 70)

SC-ST (Prevention Of Atrocities) Act,1989; Section 3(1)(u)– The offence under Section 3(1)(u) will come into play only when any person is trying to promote ill feeling or enmity against the members of the scheduled castes or scheduled tribes as a group and not as individuals. (Para 77)

SC-ST (Prevention Of Atrocities) Act,1989; Section 18,18A- Code Of Criminal Procedure,1973; Section 438 –If the complaint does not make out a prima facie case for applicability of the provisions of the Act, 1989 then the bar created by Sections 18 and 18-A(i) shall not apply and thus the court would not be precluded from granting pre-arrest bail to the accused persons .( Para 35)- Section 18 bars the remedy of anticipatory bail only in those cases where a valid arrest of the accused person can be made as per Section 41 read with Section 60A of CrPC – The bar under Section 18 of the Act, 1989 would apply only to those cases where prima facie materials exist pointing towards the commission of an offence under the Act, 1989. We say so because it is only when a prima facie case is made out that the pre-arrest requirements as stipulated under Section 41 of CrPC could be said to be satisfied. (Para 41- 46) – when the necessary ingredients to constitute the offence under the Act, 1989 are not made out upon the reading of the complaint, no case can be said to exist prima facie. As a sequitur, if the necessary ingredients to constitute the offence under the Act, 1989 are not disclosed on the prima facie reading of the allegations levelled in the complaint or FIR, then in such circumstances, as per the consistent exposition by various decisions of this Court, the bar of Section 18 would not apply and the courts would not be absolutely precluded from granting pre-arrest bail to the accused persons. (Para 47-48) -The duty to determine prima facie existence of the case is cast upon the courts with a view to ensure that no unnecessary humiliation is caused to the accused. The courts should not shy away from conducting a preliminary inquiry to determine if the narration of facts in the complaint/FIR in fact discloses the essential ingredients required to constitute an offence under the Act, 1989. It is expected of the courts to apply their judicial mind to determine whether the allegations levelled in the complaint, on a plain reading, satisfy the ingredients constituting the alleged offence. Such application of judicial mind should be independent and without being influenced by the provisions figuring in the complaint/FIR. The aforesaid role of the courts assumes even more importance when a prima facie finding on the case has the effect of precluding the accused person from seeking anticipatory bail, which is an important concomitant of personal liberty of the individual. (Para 50)

Interpretation Of Statutes –A penal statute must receive strict construction. A principle of statutory interpretation embodies the policy of the law, which is in turn based on public policy. The court presumes, unless the contrary intention appears, that the legislator intended to conform to this legal policy. A principle of statutory interpretation can, therefore, be described as a principle of legal policy formulated as a guide to the legislative intention. (Para 82)

Bail – Excessive bail is no bail. To grant bail and thereafter to impose excessive and onerous conditions, is to take away with the left hand, what is given with the right. As to what is excessive will depend on the facts and circumstances of each case. (Para 23)

Surety – The Oxford Dictionary defines ‘surety’ as “a person who takes responsibility for another’s obligation”. Advanced Law Lexicon by P. Ramanatha Aiyar, 3 rd Edition 2005 defines ‘surety’ to mean “the bail that undertakes for another man in a criminal case- Sureties are essential to ensure the presence of the accused, released on bail. At the same time, where the court is faced with the situation where the accused enlarged on bail is unable to find sureties, as ordered, in multiple cases, there is also a need to balance the requirement of furnishing the sureties with his or her fundamental rights under Article 21 of the Constitution of India. An order which would protect the person’s fundamental right under Article 21 and at the same time guarantee the presence, would be reasonable and proportionate. As to what such an order should be, will again depend on the facts and circumstances of each case- Whether it is to get individuals, to stand as a guarantor for a loan transaction or as a Surety in a criminal proceeding, the choice for a person is very limited. It will very often be a close relative or a longtime friend. In a criminal proceeding, the circle may get even more narrowed as the normal tendency is to not disclose about the said criminal proceeding to relatives and friends, to protect one’s reputation. These are hard realities of life in our country and as a court of law we cannot shut our eyes to them. A solution, however, has to be found strictly within the framework of the law. (Para 21-23)

Code Of Criminal Procedure, 1973; Section 161- Indian Evidence Act,1872; Section 32- A statement made by a person who is dead, as to the cause of his death or to the circumstances of the transaction which resulted in his death, to a Police Officer and which has been recorded under Section 161 CrPC, shall be relevant and admissible, notwithstanding the express bar against use of such statement in evidence contained therein. In such eventuality, the statement recorded under Section 161 CrPC assumes the character of a dying declaration. Since extraordinary credence has been given to such dying declaration, the court ought to be extremely careful and cautious in placing reliance thereupon. (Para 65) -the mere nonobtainment of a medical fitness certificate will not deter this Court from considering a properly recorded statement under Section 161 CrPC to be a dying declaration. (Para 69)

Code Of Criminal Procedure,1973; Section 154-The object of the FIR is three-fold: firstly, to inform the jurisdictional Magistrate and the Police Administration of the offence that has been reported to the Police Station; secondly, to acquaint the Judicial Officer before whom the case is ultimately tried as to what are the actual facts stated immediately after the occurrence and on what materials the investigation commenced; thirdly and most importantly, to safeguard the accused against subsequent variations, exaggerations or additions. (Para 39) -e stipulations outlined in Section 154 CrPC concerning the reading over of the information after it is written down, the signing of the said information by the informant, and the entry of its substance in the prescribed manner are not obligatory. These requirements are procedural in nature, and the omission of any of them does not impact the legal consequences resulting from the information provided under the section. (Para 43)

Criminal Trial -It would be too unfair and unreasonable to expect a witness, unless parroted, to recall every minute detail of the occurrence and 31 present it with a totally accumulative narrative. (Para 58)

Criminal Trial – The non explanation of human blood on the weapon of crime constitutes a circumstance against the accused. It is incumbent upon the accused to provide an explanation regarding the presence of human blood on the weapon. (Para 61)

Code Of Criminal Procedure, 1973; Section 227- At the stage of consideration of an application for discharge, defence case or material, if produced at all by the accused, cannot be looked at all. Once “the record of the case and the documents submitted therewith” are before the Court they alone can be looked into for considering the application for discharge and thereafter if it considers that there is no sufficient ground for proceeding against the accused concerned then he shall be discharged after recording reasons therefor. In that regard, it is only appropriate to consider the authorities dealing with the question as to what exactly is the scope of consideration and what should be the manner of consideration while exercising such power-in a case where an application is filed for discharge under Section 227, Cr.PC, it is an irrecusable duty and obligation of the Court to apply its mind and answer to it regarding the existence of or otherwise, of ground for proceeding against the accused, by confining such consideration based only on the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in that behalf. To wit, such conclusion on existence or otherwise of ground to proceed against the accused concerned should not be and could not be based on mere suppositions or suspicions or conjectures, especially not founded upon material available before the Court – Normally, the Court is to record his reasons only for discharging an accused at the stage of Section 227, Cr.PC. However, when an application for discharge is filed under Section 227, Cr.PC, the Court concerned is bound to disclose the reason(s), though, not in detail, for finding sufficient ground for rejecting the application or in other words, for finding prima facie case, as it will enable the superior Court to examine the challenge against the order of rejection(Para 22)

Indian Penal Code, 1860; Section 120A,120B -Conspiracy is hatched in privacy and not in secrecy, and such it would rarely be possible to establish conspiracy by direct evidence. A few bits here and a few bits there, on which the prosecution may rely, are not sufficient to connect an accused with the commission of the crime of criminal conspiracy- To constitute even an accusation of criminal conspiracy, first and foremost, there must at least be an accusation of meeting of minds of two or more persons for doing an illegal act or an act, which is not illegal in itself, by illegal means. (Para 26-27)

Code Of Criminal Procedure, 1973; Section 311- Indian Evidence Act, 1872; Section 165– The trial Court is under an obligation not to act as a mere spectator and should proactively participate in the trial proceedings, so as to ensure that neither any extraneous material is permitted to be brought on record nor any relevant fact is left out. It is the duty of the trial Court to ensure that all such evidence which is essential for the just decision of the case is brought on record irrespective of the fact that the party concerned omits to do so. (Para 48)

Indian Evidence Act, 1872; Section 65B- When the prosecution admittedly, did not prove the call detail records in accordance with the mandate of Section 65B of the Evidence Act and hence, the call detail records cannot be read in evidence. (Para 51)

Code Of Criminal Procedure, 1973; Section 319 – Prevention Of Corruption Act, 1988 ; Section 19- Courts cannot take cognizance against any public servant for offences committed under Sections 7,11,13 & 15 of the P.C. Act, even on an application under section 319 of the CrPC, without first following the requirements of Section 19 of the P.C Act. Here, the correct procedure should have been for the prosecution to obtain sanction under Section 19 of the P.C Act from the appropriate Government, before formally moving an application before the Court under Section 319 of CrPC. In fact, the Trial Court too should have insisted on the prior sanction, which it did not. In absence of the sanction the entire procedure remains flawed. (Para 11)

Code Of Criminal Procedure, 1973; Section 362- The second prayer in the writ petition could have been hit by Section 362 of the Cr.PC, as the prayer was to quash the order on the application for discharge (This prayer was sought in writ petition that was dismissed earlier). But the first prayer was for quashing the complaint itself. Therefore, dismissing the first prayer in the writ petition on the ground of the bar of Section 362 of the Cr.PC was erroneous. (Para 15)

Code Of Criminal Procedure, 1973; Section 154,161,162– When the police officer does not deliberately record the FIR on receipt of information about cognizable offence and the FIR is prepared after reaching the spot after due deliberations, consultations and discussion, such a complaint cannot be treated as FIR and it would be a statement made during the investigation of a case and is hit by Section 162 CrPC- Referred to State of A.P. v. Punati Ramulu 1994 Supp (1) SCC 590. (Para 29)

Criminal Trial -Sole circumstance of recovery of bloodstained weapon cannot form the basis of conviction unless the same was connected with the murder of the deceased by the accused – Referred to Mustkeem alias Sirajudeen v. State of Rajasthan (2011) 11 SCC 724. (Para 43)

Indian Evidence Act,1872; Section 21,26,27- confessions of the accused recorded by the Medical Officer while preparing the injury reports of the accused -These so-called confessions are ex-facie inadmissible in evidence for the simple reason that the accused persons were presented at the hospital by the police officers after having been arrested in the present case. As such, the notings made by the Medical Officer, ) in the injury reports would be clearly hit by Section 26 of the Indian Evidence Act, 1872- As a consequence, we are not inclined to accept the said admissions of the accused as incriminating pieces of evidence relevant under Section 21 of the Evidence Act – The circumstance regarding identification of place of incident at the instance of the accused is also inadmissible because the crime scene was already known to the police and no new fact was discovered in pursuance of the disclosure statements. (Para 40-41)

Code Of Criminal Procedure, 1973; Section 438 [Section 482 BNSS]- The practice prevalent in the State of Gujarat that the Courts while dealing with the anticipatory bail application routinely impose the restrictive condition whereby, the Investigating Officers are granted blanket permission to seek police custody remand of the accused, in whose favour the order of anticipatory bail is passed, is in direct contravention to the ratio of the Constitution Bench judgment of this Court in the case of Sushila Agarwal.

Code Of Criminal Procedure, 1973 ; Section 167- Remand – Before exercising the power to grant police custody remand, the Courts must apply judicial mind to the facts of the case so as to arrive at a satisfaction as to whether the police custody remand of the accused is genuinely required. The Courts are not expected to act as 60 messengers of the investigating agencies and the remand applications should not be allowed in a routine manner. (Para 48)

Code Of Criminal Procedure, 1973; Section 482– While exercising inherent jurisdiction under Section 482 of Criminal Procedure Code, 1973, the High Court is not supposed to hold a mini trial-The complicity of the accused in case of forgery will have to be addressed after a proper appreciation of evidence and such appreciation of evidence can be done only by undertaking the initial process i.e. by conducting the trial on the aspect of forgery.

Code Of Criminal Procedure, 1973; Section 372, 386- 40 Year Old Murder Case- Accused was sentenced to life imprisonment by Trial Court in 1986- His appeal filed in 1986 was dismissed by Allahabad HC in 2018-SC remanded the matter to HC and directed it to consider the appeal afresh- It is the duty of the appellate court to appreciate the evidence adduced in the case and to arrive at an independent conclusion as to whether the said evidence could be relied on or not and even if, it could be relied on, whether the prosecution’s case could be said to have been proved beyond reasonable doubt.

Code Of Criminal Procedure, 1973; Section 438 [Section 482 BNSS] – After forming an opinion, taking note of all relevant aspects, that bail is grantable, conditions shall not be put to make it impossible and impracticable for the grantee to comply with – The ultimate purpose of putting conditions while granting pre-arrest bail is to secure the presence of the accused and thus, eventually to ensure a fair trial and also for the smooth flow of the investigating process – Courts have to be very cautious in imposing conditions while granting bail upon finding pre-arrest bail to be grantable. [Putting conditions requiring a person to give an affidavit carrying a specific statement in the form of an undertaking that he would fulfil all physical as well as financial requirements of the other spouse so that she could lead a dignified life without interference of any of the family members of the appellant, can only be described as an absolutely improbable and impracticable condition]- We stress upon the need to put compliable conditions while granting bail, recognizing the human right to live with dignity and with a view to secure the presence of the accused as also unhindered course of investigation, ultimately to ensure a fair trial. In respect of matters relating to matrimonial cases, conditions shall be put in such a way to make the grantee of the bail as also the griever to regain the lost love and affection and to come back to peaceful domesticity. (Para 7-9)

Legal Maxim – ‘Lex non cogit ad impossibilia’ -The law does not compel a man to do what he cannot possibly perform. (Para 1)

Code Of Criminal Procedure, 1973; Section 439 – [Section 483 BNSS] – In an application made under Section 439(2) of the CrPC or Section 483(3) of the BNSS or other proceedings filed seeking cancellation of bail, the power to grant an interim stay of operation of order to bail can be exercised only in exceptional cases when a very strong prima facie case of the existence of the grounds for cancellation of bail is made out. While granting a stay of an order of grant of bail, the Court must record brief reasons for coming to a conclusion that the case was an exceptional one and a strong prima facie case is made out – As a normal rule, the ex­parte stay of the bail order should not be granted. The said power can be exercised only in rare and very exceptional cases where the situation demands the passing of such drastic order. Where such a drastic ex­parte order of stay is passed, it is the duty of the Court to immediately hear the accused on the prayer for continuation of the interim relief. When the Court exercises the power of granting ex­parte ad interim stay of an order granting bail, the Court is duty bound to record reasons why it came to the conclusion that it was a very rare and exceptional case where a drastic order of ex­parte interim stay was warranted. (Para 20)

Bail– An accused is entitled to a speedy trial- An accused or an undertrial has a fundamental right to speedy trial which is traceable to Article 21 of the Constitution of India. If the alleged offence is a serious one, it is all the more necessary for the prosecution to ensure that the trial is concluded expeditiously. When a trial gets prolonged, it is not open to the prosecution to oppose bail of the accused-undertrial on the ground that the charges are very serious. Bail cannot be denied only on the ground that the charges are very serious though there is no end in sight for the trial to conclude- Article 21 of the Constitution of India is overarching and sacrosanct. A constitutional court cannot be restrained from granting bail to an accused on account of restrictive statutory provisions in a penal statute if it finds that the right of the accused-undertrial under Article 21 of the Constitution of India has been infringed. In that event, such statutory restrictions would not come in the way. Even in the case of interpretation of a penal statute, howsoever stringent it may be, a constitutional court has to lean in favour of constitutionalism and the rule of law of which liberty is an intrinsic part. In the given facts of a particular case, a constitutional court may decline to grant bail. But it would be very wrong to say that under a particular statute, bail cannot be granted. It would run counter to the very grain of our constitutional jurisprudence. (Para 22-32)

Code of Criminal Procedure, 1973; Section 321 [ Section 360 BNSS]– Merely because an accused person is elected to the Legislative Assembly cannot be a testament to their image among the general public. Matters of a gruesome crime akin to the double murder in the present case do not warrant withdrawal of prosecution merely on the ground of good public image of an accused named in the charge sheet after thorough investigation. Contrary to the Trial Court’s view, such withdrawal cannot be said to be allowed in public interest. This reasoning cannot be accepted especially in cases of involvement of influential people. [In this case, Trial Court allowed the application for withdrawal of prosecution for one of the accused persons] (Para 12)

Code Of Criminal Procedure, 1973; Section 125 [Section 144 BNSS]- Muslim Women (Protection of Rights on Divorce) Act, 1986 – Section 125 of the CrPC applies to all married women including Muslim married women – Section 125 of the CrPC applies to all non-Muslim divorced women- If Muslim women are married and divorced under Muslim law then Section 125 of the CrPC as well as the provisions of the 1986 Act are applicable. Option lies with the Muslim divorced women to seek remedy under either of the two laws or both laws. This is because the 1986 Act is not in derogation of Section 125 of the CrPC but in addition to the said provision. If Section 125 of the CrPC is also resorted to by a divorced Muslim woman, as per the definition under the 1986 Act, then any order passed under the provisions of 1986 Act shall be taken into consideration under Section 127(3)(b) of the CrPC. -The 1986 Act could be resorted to by a divorced Muslim woman, as defined under the said Act, by filing an application thereunder which could be disposed of in accordance with the said enactment.

Code Of Criminal Procedure, 1973; Section 125 [Section 144 BNSS]- Muslim Women (Protection of Rights on Marriage) Act, 2019; Section 5 -In case of an illegal divorce as per the provisions of the 2019 Act then, i) relief under Section 5 of the said Act could be availed for seeking subsistence allowance or, at the option of such a Muslim woman, remedy under Section 125 of the CrPC could also be availed ii) If during the pendency of a petition filed under Section 125 of the CrPC, a Muslim woman is ‘divorced’ then she can take recourse under Section 125 of the CrPC or file a petition under the 2019 Act. iii) The provisions of the 2019 Act provide remedy in addition to and not in derogation of Section 125 of the CrPC.

Code of Criminal Procedure, 1973; Section 313 [ Section 351 BNSS] – Though questioning under clause (a) of sub-Section (1) of Section 313, Cr.PC, is discretionary, the questioning under clause (b) thereof is mandatory. Needless to say, a fatal non-compliance in the matter of questioning under Clause (b) of sub-section (1) thereof, in case resulted in material prejudice to any convict in a criminal case the trial concerned, qua that convict should stand vitiated. (Para 1) – Non-questioning or inadequate questioning on incriminating circumstances to an accused by itself would not vitiate the trial qua the accused concerned and to hold the trial qua him is vitiated it is to be established further that it resulted in material prejudice to the accused. True that the onus to establish the prejudice or miscarriage on account of non-questioning or inadequate questioning on any incriminating circumstance(s), during the examination under Section 313, Cr.PC, is on the convict concerned. (Para 21)

Bail – The condition of dropping a PIN on Google Maps cannot be imposed – Imposing any bail condition which enables the Police/Investigation Agency to track every movement of the accused released on bail by using any technology or otherwise would undoubtedly violate the right to privacy guaranteed under Article 21.

Indian Penal Code, 1860; Section 299,300- Provocation itself is not enough to reduce the crime from murder to culpable homicide not amounting to murder. In order to convert a case of murder to a case of culpable homicide not amounting to murder, provocation must me such that would temporarily deprive the power of self-control of a “reasonable person”. What has also to be seen is the time gap between this alleged provocation and the act of homicide; the kind of weapon used; the number of blows, etc. These are again all questions of facts. There is no standard or test as to what reasonableness should be in these circumstances as this would again be a question of fact to be determined by a Court. (Para 25)

Criminal Trial -Long Adjournments –This may affect the fairness of the trial and may even endanger, in a given case, the safety of the witness. As far as possible, the defence should be asked to cross examine the witness the same day or the following day. Only in very exceptional cases, and for reasons to be recorded, the cross examination should be deferred and a short adjournment can be given after taking precautions and care, for the witness, if it is required – A request for deferral must be premised on sufficient reasons, justifying the deferral of cross examination of the witness- The mandate of Section 231 of Cr.PC and the law laid down on the subject referred above must be followed in its letter and spirit. (Para 11-13)

Indian Evidence Act, 1872; Section 105- The burden of proof that the accused’s case falls within the general exception is upon the accused himself- This burden of proof though is not as onerous as the burden of proof beyond all reasonable doubts which is on the prosecution, nevertheless some degree of reasonable satisfaction has to be established by the defence, when this plea is taken. (Para 21)

Indian Penal Code, 1860; Section 34 and 149 –A mere common intention per se may not attract Section 34 IPC without action in furtherance of such common intention- There is a significant distinction between Section 34 and Section 149 of IPC. Section 34 requires active participation and prior meeting of minds whereas Section 149 assigns liability merely by membership of an unlawful assembly and has a wider scope than Section 34 IPC. (Para 19)

Code Of Criminal Procedure, 1973; Section 217– A Court may alter or add to any charge before judgment is pronounced but when charges are altered, opportunity must be given under Section 217 of the CrPC, both to the Prosecution and the defence, to recall or re-examine witnesses in reference to such altered charges. More importantly, in case, charges are altered by the Court, reasons for the same must be recorded in the judgment. (Para 21)

Unlawful Activities (Prevention) Act, 1957; Section 18– For the purpose of considering the offence under Section 18, the commission of terrorist act as contemplated in Section 15 of UAPA is not required to be made out. What Section 18 contemplates is that whoever conspires or attempts to commit, or advocates, abets, advises or incites, directly or knowingly facilitates the commission of a terrorist act or any act preparatory to the commission of a terrorist act would be punishable under the said provision. Hence, if there is any material or evidence to show that the accused had conspired or attempted to commit a terrorist act, or committed any act preparatory to the commission of a terrorist act, such material evidence would be sufficient to invoke Section 18. For attracting Section 18, the involvement of the accused in the actual commission of terrorist act as defined in Section 15 need not be shown. (Para 18)

Code Of Criminal Procedure, 1973; Section 173(2)- Chargesheet need not contain detailed analysis of the evidence- It is for the concerned court considering the application for bail to assess the material/evidence presented by the investigating authority along with the report under Section 173 Cr.P.C. in its entirety, to form its opinion as to whether there are reasonable grounds for believing the accusation against the accused is prima facie true or not. (Para 13)

Unlawful Activities (Prevention) Act, 1957; Section 43(D)(5) -the question of discarding the material or document at the stage of considering the bail application of an accused, on the ground of being not reliable or inadmissible in evidence, is not permissible. The Court must look at the contents of the documents and take such documents into account as it is and satisfy itself on the basis of broad probabilities regarding the involvement of the accused in the commission of the alleged offences for recording whether a prima facie case is made out against the accused. (Para 19)

Unlawful Activities (Prevention) Act, 1957- Counter terrorism enactments are to strike a balance between the civil liberties of the accused, human rights of the victims and compelling interest of the state- National security is always of paramount importance and any act in aid to any terrorist act – violent or non-violent is liable to be restricted. The UAPA is one of such Acts which has been enacted to provide for effective prevention of certain unlawful activities of individuals and associations, and to deal with terrorist activities, as also to impose reasonable restrictions on the civil liberties of the persons in the interest of sovereignty and integrity of India. (Para 23)