CaseCiter Digest

Criminal Trial – Sentencing -There is a crying need for a clear sentencing policy, which should never be judge-centric as the society has to know the basis of a sentence- Sentencing shall not be a mere lottery. It shall also not be an outcome of a knee-jerk reaction.- The Government of India represented by the Secretary for the Ministry of Law and Justice shall file an affidavit on the feasibility of introducing a comprehensive sentencing policy and a report thereon, within a period of six months from today. (Para 32,33, 58)

Code of Criminal Procedure, 1973; Sections 207,238 – An accused shall be put to notice on the incriminating materials leading to the charges framed against him. As stated, the obligation so imposed is not only on the supply of the relevant documents, but such compliance should be at the appropriate stage so that it does not brook any delay. The idea is to enable an accused to face the trial by thoroughly understanding the case stated against him. However, a mere non-supply of a part of the documents would not lead to the trial being vitiated, unless an accused substantiates before the Court that it has caused prejudice to him. Obviously, it is ultimately for the Court to come to an appropriate conclusion by an adequate assessment of facts placed before it. (Para 16) -The right of an accused would arise, in getting the documents relied upon by the prosecution, after taking cognizance and before framing of the charges. Therefore, between taking cognizance and framing of charges, an accused should have sufficient window to go through the documents supplied to him as he is entitled to be heard at a later stage. (Para 17)

Code of Criminal Procedure, 1973; Section 227 – Before the stage of framing of charges, the Judge is expected to discharge an accused, if he is of the considered view that there is no sufficient ground to proceed against the accused. This being a judicial exercise, his discretion must be supported by adequate reasons. In discharge of his powers, he has to consider the records and documents submitted by the prosecution vis-àvis the arguments adduced by both sides. The words “after hearing the submissions of the accused” would imply an effective and meaningful hearing. It is not a mere procedural compliance. A Judge has to satisfy himself that the accused had reasonable time to ponder over and prepare his arguments before seeking a discharge. At this stage, an accused gets a substantive right as there is a window of opportunity for him to get discharged, instead of facing a prolonged trial. Such an opportunity can only be exercised by not only supplying the documents needed, but also giving adequate and sufficient time to the defence to place its case. Granting time for the aforesaid purpose is the sole discretion of the Court – The duty of the Court is to see as to whether the materials produced by the prosecution are reasonably related to the offence attributed against the accused. What is to be seen is the existence of a prima facie case. The case is at a pre-framing stage and therefore, it cannot be a full-fledged pretrial. Adequacy and sufficiency are the relevant factors to be seen. The test is one of the degree of probability. .Section 227 of the CrPC, 1973, in fact, is a provision which gives effect to Article 22 of the Constitution of India, 1950. The right of an accused to be heard is inalienable. For exercising this right, there has to be due consultation. Such a right can never be termed as a procedural one. It would be a ground to challenge the proceeding at that stage, but the same would not vitiate the trial. Suffice it is to reiterate that it is the duty of the court to ensure that the accused is given sufficient opportunities to consult his lawyer. (Para 18-20)

Code of Criminal Procedure, 1973; Section 228 -The Judge, while framing any charge, is ordained to read and explain it to the accused. Thereafter, the accused shall be asked as to whether he pleads guilty of the offence charged or claims to be tried. As a matter of routine, video conferencing must be avoided, unless there are compelling reasons to do so. This is an occasion where the Judge avoids the lawyer and keeps in touch with the accused directly. He records the response of the accused. Under those circumstances, unless a situation so warrants otherwise, the presence of the accused shall be ensured. (Para 21)

Code of Criminal Procedure, 1973; Sections 230,231 – To ensure fair play, as a normal practice, the Court has to fix a date for the examination of the witnesses. The idea is to complete the examination-inchief and cross examination, both at the same time. While fixing the date, the Court is expected to take into consideration the relative convenience of the parties, though the discretion lies with it. Sub-section (1) of Section 231 of the CrPC, 1973 fixes a responsibility on the Court, the prosecution and the defence to go ahead with the examination of witnesses on the date so fixed. Therefore, even for this reason, the Court shall ascertain and then decide a convenient date for both sides, while being conscious about any attempt to drag the trial. Completion of such examination is a matter of rule as any deferment can at best be an exception, to the discretion of the Court. Obviously, the use of such a discretion, being judicial in nature, has to be on a case-to-case basis. Suffice it is to state that a balance has to be struck between the competing interests. (Para 22)

Code of Criminal Procedure, 1973; Section 354– Section 354 of the CrPC, 1973 though merely deals with the language and contents of judgment, also sheds light on the fact that a judgment contains two distinct parts, wherein the first part deals with the conviction and the second deals with the sentence. Sub-section (1)(c) of the aforesaid provision has to be understood to mean that a Judge is expected to consider the aggravating and mitigating circumstances. In such view of the matter, sub-section (3) of the aforesaid provision is more clarificatory, keeping in mind the nature of the offence committed. As a convict is heard on sentence, it follows that any decision on sentence has to indicate the reasons for exercise of judicial discretion by the Judge. (Para 42)

Code of Criminal Procedure, 1973; Section 233– If the accused applies for the issue of process to compel the attendance of any witnesses or production of document, the Judge shall issue such process. It is only when he comes to the conclusion, that an application filed for the aforesaid purpose on behalf of the defence is vexatious or filed to delay the proceedings or for defeating the ends of justice, it has to be refused. We have no hesitation in holding that when an application is moved invoking Section 233 of the CrPC, 1973 the Judge is duty bound to issue process, unless he is satisfied on the existence of the three elements as aforesaid. Any denial would be an affront to the concept of a fair trial.

Code of Criminal Procedure, 1973; Section 309 -This section places emphasis on the continuation of the trial as any obstruction and delay would hamper the process of justice. In a criminal trial, continuity is of utmost importance, as it not only helps the court to concentrate, but ensures quality justice. However, the courts are not powerless in granting adjournments if the circumstances so warrant. Therefore, despite a bar under the second and fourth proviso to Section 309, an adjournment can be granted, provided the party who seeks so, satisfies the court. After all, a speedy trial enures to the benefit of the accused- (Para 24)

Code of Criminal Procedure, 1973; Section 465 – This provision is meant to uphold the decision of the trial court, even in a case where there is an apparent irregularity in procedure. If the evidence available has been duly taken note of by the Court, then such a decision cannot be reversed on account of a mere technical error. This is based on the principle that a procedural law is the handmaid of justice. However, the ultimate issue is as to whether such an error or omission has constituted a failure of justice, which is one of fact, to be decided on the touchstone of prejudice- If the Appellate Court is of the view that there is a continued noncompliance of the substantial provisions of the CrPC, 1973 then the rigour of Section 465 of the CrPC, 1973 would not apply and, in that case, an order of remand would be justified. (Para 25-26)

Code of Criminal Procedure, 1973; Section 386– An Appellate Court has got ample power to direct re-trial. However, such a power is to be exercised in exceptional cases. The irregularities found must be so material that a re-trial is the only option. In other words, the failure to follow the mandate of law must cause a serious prejudice vitiating the entire trial, which cannot be cured otherwise, except by way of a retrial. Once such a re-trial is ordered, the effect is that all the proceedings recorded by the court would get obliterated leading to a fresh trial, which is inclusive of the examination of witnesses. (Para 27)

Code Of Criminal Procedure, 1973; Section 360- Probation of Offenders Act, 1958; Sections 3,4,6- A trial court is duty bound to comply with the mandate of Section 360 of the CrPC, 1973 read with Sections 3, 4 and 6 of the Act, 1958 before embarking into the question of sentence. In this connection, we may note that sub-section (10) of Section 360 of the CrPC, 1973 makes a conscious effort to remind the Judge of the rigour of the beneficial provisions contained in the Act, 1958. (Para 28)

Rules for Video Conferencing for Courts, 2020 –Under Rule 11, an act of securing the presence of an accused through video conferencing at the time of judicial remand for the first time or police remand, is not a matter of course and, therefore, it is to be exercised only in exceptional circumstances for the reasons to be recorded in writing. Similar is the case qua recording of the statement of an accused under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “CrPC, 1973”), in which case, it is obligatory on the part of the Court to make sure that the accused is free from any form of coercion, threat or undue influence. (Para 4)

Criminal Trial – Fair Trial –The right to fair hearing is a part of Article 21 of the Constitution of India, 1950. A trial should be a real one and, therefore, not a mere pretence. There shall never be an impression over the decision of a Court that it has predetermined and pre-judged a case even before starting a trial, or else, such a trial would become an empty formality. (Para 7-10)- Speedy Trial -While a speedy trial is in the best interest of everyone, including the society, the pace can only be set through the procedural mechanism, and it cannot be done at the mere dictate of the Court in ignorance of the procedural law. At the same time, care has to be taken with the aid of the law, to prevent the miscarriage of justice, when the delay is caused on purpose. Thus, a speedy trial, being a facet of fair trial, cannot be permitted to destroy the latter by its recklessness. Any anxiety on the part of the Court, either to expedite the trial in contravention of law, or delay it unnecessarily, would seriously impede fair trial. In such a case, either the prosecution or the defence would bear the consequences.

Jammu & Kashmir Reorganisation Act, 2019 – Jammu and Kashmir Reorganisation (Removal of Difficulties) Order, 2019– CrPC, 1973 would govern the field only from the appointed day and consequently the CrPC, 1989 stands repealed- It would come into effect only from the appointed day, and therefore has got no retrospective application. To make this position clear, the CrPC, 1973 shall be pressed into service from 31.10.2019 onwards, and thus certainly not before the appointed day. (Para 18-20) – There is nothing to infer either from the Act, 2019 or the Order, 2019 that CrPC, 1973 will have a retrospective application- While an investigation could continue after its initiation under the CrPC, 1989, by way of the application of the CrPC, 1973, it cannot be stated that even for a case where there was a clear non-compliance of the former, it can be ignored by the application of the latter.

Bail– While considering as to whether bail ought to be granted in a matter involving a serious criminal offence, the Court must consider relevant factors like the nature of the accusations made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the role attributed to the accused, the criminal antecedents of the accused, the probability of tampering of the witnesses and repeating the offence, if the accused are released on bail, the likelihood of the accused being unavailable in the event bail is granted, the possibility of obstructing the proceedings and evading the courts of justice and the overall desirability of releasing the accused on bail- bail once granted, ought not to be cancelled in a mechanical manner. However, an unreasoned or perverse order of bail is always open to interference by the superior Court. If there are serious allegations against the accused, even if he has not misused the bail granted to him, such an order can be cancelled by the same Court that has granted the bail. Bail can also be revoked by a superior Court if it transpires that the courts below have ignored the relevant material available on record or not looked into the gravity of the offence or the impact on the society resulting in such an order (Para 26-27) -The considerations that weigh with the appellate Court for setting aside the bail order on an application being moved by the aggrieved party include any supervening circumstances that may have occurred after granting relief to the accused, the conduct of the accused while on bail, any attempt on the part of the accused to procrastinate, resulting in delaying the trial, any instance of threats being extended to the witnesses while on bail, any attempt on the part of the accused to tamper with the evidence in any manner. We may add that this list is only illustrative and not exhaustive. However, the court must be cautious that at the stage of granting bail, only a prima facie case needs to be examined and detailed reasons relating to the merits of the case that may cause prejudice to the accused, ought to be avoided. Suffice it is to state that the bail order should reveal the factors that have been considered by the Court for granting relief to the accused. (Para 28- 29)

Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989; Section 3(1)(r) and 3(1)(s)- Intentional insult or abuse coupled with the humiliation is made in any place within public view. The expression “in any place within public view” has an important role to play in deciding whether the allegation attracts the ingredients of an offence or not- An important test for “in any place within public view” is within the view of persons other than the complainant. (Para 19-22)

Code Of Criminal Procedure, 1973; Section 156(3)- The Magistrate, under section 156(3) of the CrPC, asks himself a question: whether the complaint, as presented, makes out a case for directing the registration of an FIR or calls for inquiry or report from the jurisdictional police station. The inner and outer limit of the exercise of this jurisdiction is on a case-to-case basis dependent on the complaint, nature of allegations and offence set out by such a complaint- The Magistrate does not act mechanically and exercises his discretion judiciously by applying mind to the circumstances complained of and the offence alleged against the accused for taking one or the other step- To cause or register an FIR and consequential investigation based on the same petition filed under section 156(3) of the CrPC, the complaint satisfies the essential ingredients of the offences alleged. In other words, if such allegations in the petition are vague and do not specify the alleged offences, it cannot lead to an order for registration of an FIR and investigation. (Para 14-18)

Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989; Section 4– The commission or omission of any of the duties by the public servant becomes a cognizable offence against the public servant only on the recommendation of the administrative enquiry, for in law, an offence means any act or omission made punishable by any law for the time being in force. A combined reading of sub-sections (1), (2) and (3) of section 4, would demonstrate that the commission or omission by a public servant has penal consequences and the willful neglect is recommended by an administrative enquiry and the cognizance can be taken thereafter. The recommendation of administrative enquiry on alleged failure of duty or function by a public servant would make the neglect of an offence clear and the cognizance of such an offence is legal. The competent court can take cognizance of the commission or omission of any duty specified under sub-section (2) of section 4 when made along with the recommendation and direct legal proceedings. Therefore, to constitute a prima facie case of negligence of duty, the proviso to subsection (2) of section 4 contemplates an administrative enquiry and recommendations- the purpose of an administrative enquiry is to find out the conduct of a public servant against whom allegations of failure of duty or function are made and the omission or commission is bonafide or willful. (Para 13.4)

Interpretation of Statutes- A proviso is a clause that introduces a condition by the word ‘provided’. The main function of a proviso is to put a qualification and to attach a condition to the main provision. It indicates the exceptions to the provision but may aid in explaining what is meant to be conveyed by its part. A proviso is “introduced to indicate the effect of certain things which are within the statute but accompanied by the peculiar conditions embraced within the proviso”. A proviso is enacted to modify the immediately preceding language. (Para 13.4)

Indian Penal Code, 1860; Section 375,376 -Absence of injuries on the person of the prosecutrix is by itself no ground to infer consent on the part of the prosecutrix. (Para 6)

Code Of Criminal Procedure, 1973; Section 313- The conviction cannot be based solely on the statements made by an accused under sub-section (1) of Section 313 of the Cr. PC. The statements of the accused cannot be considered in isolation but in conjunction with the evidence adduced by the prosecution. The statements may have more relevance when under a statute, an accused has burden of discharge. When the law requires an accused to discharge the burden, the accused can always do so by a preponderance of probability. But, while considering whether the accused has discharged the burden, the court can certainly consider his statement recorded under Section 313. (Para 6)

Summary: Appeal against HC judgment that convicted accused for the offence punishable under clause (g) of sub-section (2) of Section 376 of the Indian Penal Code, 1860 – Dismissed appeal.

Code Of Criminal Procedure, 1973; Section 357- Payment of victim compensation cannot be a consideration or a ground for reducing the sentence imposed upon the accused as victim compensation is not a punitive measure and only restitutory in nature and thus, has no bearing with the sentence that has been passed which is punitive in nature – . In criminal proceedings the courts should not conflate sentence with compensation to victims. Sentences such as imprisonment and / or fine are imposed independently of any victim compensation and thus, the two stand on a completely different footing, either of them cannot vary the other. Where an accused is directed to pay compensation to victims, the same is not meant as punishment or atonement of the convict but rather as a step towards reparation to the victims who have suffered from the offence committed by the convict- If payment of compensation becomes a consideration for reducing sentence, then the same will have a catastrophic effect on the criminal justice administration. It will result in criminals with a purse full of money to buy their way out of justice, defeating the very purpose of criminal proceedings. (Para 23-26)

Code Of Criminal Procedure, 1973; Section 357- The sole factor for deciding the compensation to be paid is the victim’s loss or injury as a result of the offence, and has nothing to do with the sentence that has been passed. Section 357 of CrPC is intended to reassure the victim that he/she is not forgotten in the criminal justice system. It is a constructive approach to crimes based on the premise that mere punishment of the offender may not give solace to the victim or its family- when deciding the compensation which is to be paid to a victim, the only factor that the court may take into consideration is the convict’s capacity to pay the compensation and not the sentence that has been imposed. (Para 24-25) – The idea of victim compensation is based on the theory of victimology which recognizes the harsh reality that victims are unfortunately the forgotten people in the criminal justice delivery system. Victims are the worst sufferers. Victims‟ family is ruined particularly in cases of death and grievous bodily injuries. This is apart from the factors like loss of reputation, humiliation, etc. Theory of Victimology seeks to redress the same and underscores the importance for criminal justice administration system to take into consideration the effect of the offence on the victim’s family even though human life cannot be restored but then monetary compensation will at least provide some solace. (Para 22)

Code Of Criminal Procedure, 1973; Section 102(3)- Non reporting of the seizure forthwith by the police officer to the jurisdictional court would not vitiate the seizure order- But it does not mean that there would be no consequence whatsoever as regards the police officer, upon whom the law has enjoined a duty to act in a certain way- in deciding whether the police officer has properly discharged his obligation under Section 102(3) Cr.P.C., the Magistrate would have to, firstly, examine whether the seizure was reported forthwith- The meaning of the word ‘forthwith’ discussed- In doing so, it ought to have regard to the interpretation of the expression, ‘forthwith’-If it finds that the report was not sent forthwith, then it must examine whether there is any explanation offered in support of the delay. If the Magistrate finds that the delay has been properly explained, it would leave the matter at that. However, if it finds that there is no reasonable explanation for the delay or that the official has acted with deliberate disregard/ wanton negligence, then it may direct for appropriate departmental action to be initiated against such erring official- However, the act of seizure would not get vitiated by virtue of such delay. (Para 16-23)

Code Of Criminal Procedure, 1973; Section 482- if delay in registration of FIR is no ground to quash the FIR, then delay in forwarding such FIR to the Magistrate can also afford no ground for nullification of the FIR- Unless serious prejudice is demonstrated to have been suffered as against the accused, mere delay in sending the FIR to the Magistrate by itself will not have any deteriorating effect on the case of the prosecution- If prejudice is demonstrated and the prosecution fails to explain the delay, then, at best, the effect of such delay would only be to render the date and time of lodging the FIR suspect and nothing more. (Para 16)

Words and Phrases – Forthwith– The expression ‘forthwith’ means ‘as soon as may be’, ‘with reasonable speed and expedition’, ‘with a sense of urgency’, and ‘without any unnecessary delay’. In other words, it would mean as soon as possible, judged in the context of the object sought to be achieved or accomplished- The interpretation of the word ‘forthwith’ would depend upon the terrain in which it travels and would take its colour depending upon the prevailing circumstances which can be variable. (Para 22-23)

Bail – Dismissing appeal filed by Union of India against bail granted to an accused in UAPA case, SC observed: An accused cannot be detained under the guise of punishing him by presuming the guilt and in Vaman Narain Ghiya v. State of Rajasthan, (2009) 2 SCC 28 – The broad probability of accused being involved in the committing of the offence alleged will have to be seen. This Court in NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1 – Referred to Himanshu Sharma v. State of Madhya Pradesh, 2024 SCC OnLine SC 187- Considerations for grant of bail and cancellation of bails are different and if conditions of bail is flouted or the accused had misused the liberty granted or bail was granted in ignorance of statutory provisions or bail was obtained by playing fraud then bail granted to the accused can be cancelled- In the absence of their being a strong prima facie case on the conditions of the bail having been violated, it would not be appropriate for the said order being reversed or set aside after a lapse of fifteen (15) months- In fact, the apprehension of the Union of India that respondent is likely to pose threat to the witnesses and there was a threat posed to the complainant, Mr. Sanjay Kumar Tiwari, would not be a ground to set aside the impugned order enlarging the respondent on bail in as much in the case referred against the respondent for the said offence he has been granted bail. That apart we are of the considered view that there are no other overwhelming material on record to set aside the order granting bail which out weighs the liberty granted by the High Court under the impugned order.

Code of Criminal Procedure, 1973; Section 299 (1)- The first part provides for proof of jurisdictional fact in respect of abscondence of an accused person and the second that there was no immediate prospect of arresting him. In the event, an order under the said provision is passed, deposition of any witness taken in the absence of an accused may be used against him if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without any amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable – Referred to Nirmal Singh v. State of Haryana (2000) 4 SCC 41 re: Under what circumstances and by what method, the statement of a witness under Section 299 of CrPC could have been tendered in the case for being admissible. (Para 31-32)

Summary: Some disturbing contents of the History Sheet to the extent it pertained to the school going minor children of the appellant and his wife, against whom there was apparently no adverse material whatsoever for inclusion in the History Sheet – Amended Standing Order -The decision taken to the effect that History Sheet is only an internal police document and it shall not be brought in public domain, largely addresses the concern expressed by us in the beginning. Secondly, the extra care and precaution, to be now observed by a police officer while ensuring that the identity of a minor child is not disclosed as per the law too, is a necessary step to redress the appellant’s grievances. It will surely prevent the undesirable exposure that has been given to the minor children in this case.

History Sheet – States and Union Territories may also consider the desirability of ensuring that no mechanical entries in History Sheet are made of innocent individuals, simply because they happen to hail from the socially, economically and educationally disadvantaged backgrounds, along with those belonging to Backward Communities, Scheduled Castes & Scheduled Tribes. While we are not sure about the degree of their authenticity, but there are some studies available in the public domain that reveal a pattern of an unfair, prejudicial and atrocious mindset. It is alleged that the Police Diaries are maintained selectively of individuals belonging to Vimukta Jatis, based solely on caste-bias, a somewhat similar manner as happened in colonial times. All the State Governments are therefore expected to take necessary preventive measures to safeguard such communities from being subjected to inexcusable targeting or prejudicial treatment. We must bear in mind that these pre-conceived notions often render them ‘invisible victims’ due to prevailing stereotypes associated with their communities, which may often impede their right to live a life with self-respect. (Para 14)

Constitution of India, 1950; Article 21 – The value for human dignity and life is deeply embedded in Article 21 of our Constitution. The expression ‘life’ unequivocally includes the right to live a life worthy of human honour and all that goes along with it. Self-regard, social image and an honest space for oneself in one’s surrounding society, are just as significant to a dignified life as are adequate food, clothing and shelter. (Para 15)

Code Of Criminal Procedure, 1973; Section 161,162– Any statement made by a person to a police officer in the course of investigation, which is reduced in writing, cannot be used for any purpose except as provided in Section 162. The first exception incorporated in sub-Section (2) is of the statements covered by clause (1) of Section 32 of the Indian Evidence Act, 1872 (for short, ‘Evidence Act’). Thus, what is provided in subSection (1) of Section 162 does not apply to a dying declaration. The second exception to the general rule provided in sub-Section (1) of Section 162 is that the accused can use the statement to contradict the witness in the manner provided by Section 145 of the Evidence Act. Even the prosecution can use the statement to contradict a witness in the manner provided in Section 145 of the Evidence Act with the prior permission of the Court. The prosecution normally takes recourse to this provision when its witness does not support the prosecution case. There is one important condition for using the prior statement for contradiction. The condition is that the part of the statement used for contradiction must be duly proved. When the two statements cannot stand together, they become contradictory statements. When a witness makes a statement in his evidence before the Court which is inconsistent with what he has stated in his statement recorded by the Police, there is a contradiction. When a prosecution witness whose statement under Section 161 (1) or Section 164 of CrPC has been recorded states factual aspects before the Court which he has not stated in his prior statement recorded under Section 161 (1) or Section 164 of CrPC, it is said that there is an omission. There will be an omission if the witness has omitted to state a fact in his statement recorded by the Police, which he states before the Court in his evidence. The explanation to Section 162 CrPC indicates that an omission may amount to a contradiction when it is significant and relevant. Thus, every omission is not a contradiction. It becomes a contradiction provided it satisfies the test laid down in the explanation under Section 162. Therefore, when an omission becomes a contradiction, the procedure provided in the proviso to sub-Section (1) of Section 162 must be followed for contradicting witnesses in the crossexamination.

Indian Evidence Act, 1872; Section 145- The Section operates in two parts. The first part provides that a witness can be cross-examined as to his previous statements made in writing without such writing being shown to him. Thus, for example, a witness can be crossexamined by asking whether his prior statement exists -The second part is regarding contradicting a witness. While confronting the witness with his prior statement to prove contradictions, the witness must be shown his prior statement. If there is a contradiction between the statement made by the witness before the Court and what is recorded in the statement recorded by the police, the witness’s attention must be drawn to specific parts of his prior statement, which are to be used to contradict him. Section 145 provides that the relevant part can be put to the witness without the writing being proved. However, the previous statement used to contradict witnesses must be proved subsequently. Only if the contradictory part of his previous statement is proved the contradictions can be said to be proved- The witness is intended to be confronted with his prior statement reduced into writing, that particular part of the statement, even before it is proved, must be specifically shown to the witness. After that, the part of the prior statement used to contradict the witness has to be proved. As indicated earlier, it can be treated as proved if the witness admits to having made such a statement, or it can be proved in the crossexamination of the concerned police officer. The object of this requirement in Section 145 of the Evidence Act of confronting the witness by showing him the relevant part of his prior statement is to give the witness a chance to explain the contradiction. Therefore, this is a rule of fairness. (Para 8)

Indian Evidence Act, 1872; Section 155– Every contradiction or omission is not a ground to discredit the witness or to disbelieve his/her testimony. A minor or trifle omission or contradiction brought on record is not sufficient to disbelieve the witness’s version. Only when there is a material contradiction or omission can the Court disbelieve the witness’s version either fully or partially. What is a material contradiction or omission depends upon the facts of each case. Whether an omission is a contradiction also depends on the facts of each individual case. (Para 9)

Public Prosecutor – There should not be any element of political consideration in the matters like appointment to the post of public prosecutor, etc. The only consideration for the Government should be the merit of the person. The person should be not only competent, but he should also be a man of impeccable character and integrity. He should be a person who should be able to work independently without any reservations, dictates or other constraints. The relations between the Public Prosecution Service and the judiciary are the very cornerstone of the criminal justice system. The public prosecutors who are responsible for conducting prosecutions and may appeal against the court decisions, are one of judges’ natural counterparts in the trial proceedings and also in the broader context of management of the system of criminal law- The duty of the Public Prosecutor to cross-examine a hostile witness in detail and try to elucidate the truth & also establish that the witness is speaking lie and has deliberately resiled from his police statement recorded under Section 161 of the Cr.P.C. A good, seasoned and experienced Public Prosecutor will not only bring the contradictions on record, but will also cross-examine the hostile witness at length to establish that he or she had actually witnessed the incident as narrated in his/her police statement- It is not sufficient for the public prosecutor while cross-examining a hostile witness to merely hurl suggestions, as mere suggestions have no evidentiary value. (Para 67- 70)

Indian Evidence Act, 1872; Section 165 – Code Of Criminal Procedure, 1973; Section 311– If the questioning by the public prosecutor is not skilled, like in the case at hand, the result is that the State as a prosecuting agency will not be able to elicit the truth from the child witness. It is the duty of the court to arrive at the truth and subserve the ends of justice. The courts have to take a participatory role in the trial and not act as mere tape recorders to record whatever is being stated by the witnesses. The judge has to monitor the proceedings in aid of justice. Even if the prosecutor is remiss or lethargic in some ways, the court should control the proceedings effectively so that the ultimate objective that is the truth is arrived at. The court must be conscious of serious pitfalls and dereliction of duty on the part of the prosecuting agency. Upon failure of the prosecuting agency showing indifference or adopting an attitude of aloofness, the trial judge must exercise the vast powers conferred under Section 165 of the Evidence Act and Section 311 of the Cr.P.C. respectively to elicit all the necessary materials by playing an active role in the evidence collecting process- The judge is expected to actively participate in the trial, elicit necessary materials from the witnesses in the appropriate context which he feels necessary for reaching the correct conclusion. The judge has uninhibited power to put questions to the witness either during the chief examination or cross-examination or even during re-examination for this purpose. If a judge feels that a witness has committed an error or slip, it is the duty of the judge to ascertain whether it was so, for, to err is human and the chances of erring may accelerate under stress of nervousness during cross-examination. (Para 73-74)

Indian Penal Code, 1860; Section 300– The sine qua non for the application of an Exception to Section 300 always is that it is a case of murder but the accused claims the benefit of the Exception to bring it out of that Section and to make it a case of culpable homicide not amounting to murder. This plea, therefore, assumes that this is a case of murder. Hence, as per Section 105 of the Evidence Act, it is for the accused to show the applicability of the Exception-Four conditions must be satisfied to bring the matter within Exception 4: (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in the heat of passion; and; that (iv) the assailant had not taken any undue advantage or acted in a cruel manner. 80. On a plain reading of Exception 4, it appears that the help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or having acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4, all the ingredients mentioned in it must be found. (Para 78-80) – Where the offender takes undue advantage or has acted in a cruel or an unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is disproportionate, that circumstance must be taken into consideration to decide whether undue advantage has been taken. (Para 83)

Indian Evidence Act, 1872; Section 106– Principles of law governing the applicability of Section 106 of the Evidence Act – Section 106 of the Evidence Act referred to above provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The word “especially” means facts that are pre-eminently or exceptionally within the knowledge of the accused. The ordinary rule that applies to the criminal trials that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the rule of facts embodied in Section 106 of the Evidence Act. Section 106 of the Evidence Act is an exception to Section 101 of the Evidence Act. Section 101 with its illustration (a) lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish the facts which are, “especially within the knowledge of the accused and which, he can prove without difficulty or inconvenience”- The court should apply Section 106 of the Evidence Act in criminal cases with care and caution. It cannot be said that it has no application to criminal cases. The ordinary rule which applies to criminal trials in this country that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the provisions contained in Section 106 of the Evidence Act. 44. Section 106 of the Evidence Act cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. This section cannot be used to support a conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence. It does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifically within the knowledge of the accused and it does not throw the burden on the accused to show that no crime was committed. To infer the guilt of the accused from absence of reasonable explanation in a case where the other circumstances are not by themselves enough to call for his explanation is to relieve the prosecution of its legitimate burden. So, until a prima facie case is established by such evidence, the onus does not shift to the accused-Section 106 of the Evidence Act obviously refers to cases where the guilt of the accused is established on the evidence produced by the prosecution unless the accused is able to prove some other facts especially within his knowledge, which would render the evidence of the prosecution nugatory. If in such a situation, the accused offers an explanation which may be reasonably true in the proved circumstances, the accused gets the benefit of reasonable doubt though he may not be able to prove beyond reasonable doubt the truth of the explanation. But, if the accused in such a case does not give any explanation at all or gives a false or unacceptable explanation, this by itself is a circumstance which may well turn the scale against him – But Section 106 of the Evidence Act has no application to cases where the fact in question, having regard to its nature, is such as to be capable of being known not only to the accused but also to others, if they happened to be present when it took place. The intention underlying the act or conduct of any individual is seldom a matter which can be conclusively established; it is indeed only known to the person in whose mind the intention is conceived. Therefore, if the prosecution has established that the character and circumstance of an act suggest that it was done with a particular intention, then under illustration (a) to this section, it may be assumed that he had that intention, unless he proves the contrary – Distinction between the burden of proof and the burden of going forward with the evidence – Generally, the burden of proof upon any affirmative proposition necessary to be established as the foundation of an issue does not shift, but the burden of evidence or the burden of explanation may shift from one side to the other according to the testimony. Thus, if the prosecution has offered evidence, which if believed by the court, would convince them of the accused’s guilt beyond a reasonable doubt, the accused, if in a position, should go forward with counter-vailing evidence, if he has such evidence. When facts are peculiarly within the knowledge of the accused, the burden is on him to present evidence of such facts, whether the proposition is an affirmative or negative one. He is not required to do so even though a prima facie case has been established, for the court must still find that he is guilty beyond a reasonable doubt before it can convict. However, the accused’s failure to present evidence on his behalf may be regarded by the court as confirming the conclusion indicated by the evidence presented by the prosecution or as confirming presumptions which might arise therefrom. Although not legally required to produce evidence on his own behalf, the accused may, therefore, as a practical matter find it essential to go forward with proof. This does not alter the burden of proof resting upon the prosecution. (Para 25-48)

Indian Evidence Act, 1872; Section 8,27- The evidence of discovery would be admissible as conduct under Section 8 of the Evidence Act quite apart from the admissibility of the disclosure statement under Section 27 of the Evidence – However, conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction. (Para 57-61)

Code Of Criminal Procedure, 1973; Section 161,162- Section 162 Cr.P.C. bars the use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated therein. The statement made by a witness before the police under Section 161(1) Cr.P.C. can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to Section 162(1) Cr.P.C. The statements under Section 161 Cr.P.C. recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose: (i) of contradicting such witness by an accused under Section 145 of the Evidence Act; (ii) the contradiction of such witness also by the prosecution but with the leave of the Court; and (iii) the re-examination of the witness if necessary- The court cannot suo motu make use of statements to police not proved and ask questions with reference to them which are inconsistent with the testimony of the witness in the court. The words ‘if duly proved’ used in Section 162 Cr.P.C. clearly show that the record of the statement of witnesses cannot be admitted in evidence straightaway, nor can be looked into, but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the cross-examination of the Investigating Officer. The statement before the Investigating Officer can be used for contradiction but only after strict compliance with Section 145 of the Evidence Act, that is, by drawing attention to the parts intended for contradiction. (Para 63-64)

Indian Evidence Act, 1872; Section 145 -When it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his crossexamination. The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need of further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter, when the Investigating Officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the Investigating Officer who, again, by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo motu make use of statements to police not proved in compliance with Section 145 of the Evidence Act, that is, by drawing attention to the parts intended for contradiction (Para 66)

Code Of Criminal Procedure, 1973; Section 319– The degree of satisfaction required to exercise power under Section 319 Cr.P.C. – The evidence before the trial court should be such that if it goes unrebutted, then it should result in the conviction of the person who is sought to be summoned- The degree of satisfaction that is required to exercise power under Section 319 Cr.P.C. is much stricter, considering that it is a discretionary and an extra-ordinary power. Only when the evidence is strong and reliable, can the power be exercised. It requires much stronger evidence than mere probability of his complicity- Referred to Hardeep Singh v. State of Punjab, (2014) 3 SCC 92. (Para 16)

Code Of Criminal Procedure, 1973; Section 173(2)– It is the police report which would enable the Magistrate to decide a course of action from the options available to him. The details of the offence and investigation are not supposed to be a comprehensive thesis of the prosecution case, but at the same time, must reflect a thorough investigation into the alleged offence. It is on the basis of this record that the court can take effective cognisance of the offence and proceed to issue process in terms of Section 190(1)(b) and Section 204 of the Code. In case of doubt or debate, or if no offence is made out, it is open to the Magistrate to exercise other options which are available to him- The chargesheet is complete when it refers to material and evidence sufficient to take cognizance and for the trial. The nature and standard of evidence to be elucidated in a chargesheet should prima facie show that an offence is established if the material and evidence is proven. The chargesheet is complete where a case is not exclusively dependent on further evidence. The trial can proceed on the basis of evidence and material placed on record with the chargesheet. This standard is not overly technical or fool-proof, but a pragmatic balance to protect the innocent from harassment due to delay as well as prolonged incarceration, and yet not curtail the right of the prosecution to forward further evidence in support of the charge- (Para 3-32)

Code Of Criminal Procedure, 1973; Section 205– The observation that there is no provision for granting exemption from personal appearance prior to obtaining bail, is not correct, as the power to grant exemption from personal appearance under the Code should not be read in a restrictive manner as applicable only after the accused has been granted bail. (para 47)

Code Of Criminal Procedure, 1973; Section 156(3),204- Magistrate to be cautious in examining whether the facts of the case disclose a civil or a criminal wrong. Attempts at initiating vexatious criminal proceedings should be thwarted early on, as a summoning order, or even a direction to register an FIR, has grave consequences for setting the criminal proceedings in motion- Any effort to settle civil disputes and claims which do not involve any criminal offence, by way of applying pressure through criminal prosecution, should be deprecated and discouraged. (Para 44)

Code Of Criminal Procedure, 1973; Section 204- Non-bailable warrants cannot be issued in a routine manner and that the liberty of an individual cannot be curtailed unless necessitated by the larger interest of public and the State- nonbailable warrants should not be issued, unless the accused is charged with a heinous crime, and is likely to evade the process of law or tamper/destroy evidence. (Para 46)

Indian Penal Code, 1860; Section 406- An offence under Section 406 of the IPC requires entrustment, which carries the implication that a person handing over any property or on whose behalf the property is handed over, continues to be the owner of the said property. Further, the person handing over the property must have confidence in the person taking the property to create a fiduciary relationship between them. A normal transaction of sale or exchange of money/consideration does not amount to entrustment. (Para 36)

Indian Penal Code, 1860; Section 420-. The offence of cheating is established when the dishonest intention exists at the time when the contract or agreement is entered, for the essential ingredient of the offence of cheating consists of fraudulent or dishonest inducement of a person by deceiving him to deliver any property, to do or omit to do anything which he would not do or omit if he had not been deceived. (Para 37)

Indian Penal Code, 1860; Section 506– An offence of criminal intimidation arises when the accused intendeds to cause alarm to the victim, though it does not matter whether the victim is alarmed or not. The intention of the accused to cause alarm must be established by bringing evidence on record. The word ‘intimidate’ means to make timid or fearful, especially: to compel or deter by or as if by threats. The threat communicated or uttered by the person named in the chargesheet as an accused, should be uttered and communicated by the said person to threaten the victim for the purpose of influencing her mind. The word ‘threat’ refers to the intent to inflict punishment, loss or pain on the other. Injury involves doing an illegal act.- This threat must be with the intent to cause alarm to the person threatened or to do any act which he is not legally bound to do, or omit to do an act which he is entitled to do. Mere expression of any words without any intent to cause alarm would not be sufficient to bring home an offence under Section 506 of the IPC. The material and evidence must be placed on record to show that the threat was made with an intent to cause alarm to the complainant, or to cause them to do, or omit to do an act- Referred to Manik Taneja v. State of Karnataka (2015) 7 SCC 423(Para 38-39)

Code Of Criminal Procedure, 1973; Section 482- At the time of examining the prayer for quashing of the criminal proceedings, the court exercising extra-ordinary jurisdiction can neither undertake to conduct a mini trial nor enter into appreciation of evidence of a particular case. The correctness or otherwise of the allegations made in the complaint cannot be examined on the touchstone of the probable defence that the accused may raise to stave off the prosecution and any such misadventure by the Courts resulting in proceedings being quashed would be set aside. (Para 13)

Indian Penal Code, 1860; Section 498A- When a plain reading of the complaint would clearly indicate that the complainant having been driven out of her matrimonial home had been residing at her father’s residence namely paternal home i.e. Jamshedpur- the appellant having been driven out of her matrimonial home continued to reside at her parental home and as such the court at Jamshedpur had jurisdiction.- Referred to Rupali Devi V. State of Uttar Pradesh & Ors., (2019) 5 SCC 384 (Para 17)

Code Of Criminal Procedure, 1973; Section 482 – High Court quashed an FIR – Allowing appeal, SC observed: High Court has hastily concluded that there is no evidence to show meeting of minds between the other accused persons and the Respondents which in our considered opinion, can only be decided after a thorough examination of evidence and witnesses by the Trial Court – Dismissing the case at the preliminary stage, especially when linked to a broader pattern of similar frauds involving government lands as part of a larger conspiracy risks undermining the integrity of multiple ongoing investigations and judicial processes. Such a decision would be detrimental to the investigation of similar fraudulent schemes against public assets.

Code Of Criminal Procedure, 1973; Section 389 – The mere factum of sufferance of incarceration for a particular period, in a case where life imprisonment is imposed, cannot be a reason for invocation of power under Section 389 Cr.PC without referring to the relevant factors- Disposal of appeals against conviction, (especially in cases where life imprisonment is imposed for serious offences), within a short span of time may not be possible in view of the number of pending cases. In such circumstances if it is said that disregarding the other relevant factors and parameters for the exercise of power under Section 389, Cr. PC, likelihood of delay and incarceration for a particular period can be taken as a ground for suspension of sentence and to enlarge a convict on bail, then, in almost every such case, favourable invocation of said power would become inevitable- Such an interpretation would also go against public interest and social security. In such cases giving preference over appeals where sentence is suspended, in the matter of hearing or adopting such other methods making an early hearing possible could be resorted. We shall not be understood to have held that irrespective of inordinate delay in consideration of appeal and long incarceration undergone the power under the said provision cannot be invoked. In short, we are of the view that each case has to be examined on its own merits and based on the parameters, to find out whether the sentence imposed on the appellant(s) concerned should be suspended during the pendency of the appeal and the appellant(s) should be released on bail. (Para 9)- Acid Attack – An acid attack may completely strip off the victim of her basic human right to live a decent human life owing to permanent disfiguration- In appeals involving such serious offence(s), serious consideration of all parameters should be made. (Para 11)

Code Of Criminal Procedure, 1973; Section 204– High Court set aside the summoning order against the accused person under Section 420 read with Section 120-B IPC- Allowing appeal, SC observed: For summoning of an accused, prima facie case is to be made out on the basis of allegations in the complaint and the pre-summoning evidence led by the complainant.

Code Of Criminal Procedure, 1973; Section 482- High Court quashed the First Information Report for the offence under Section 7(a) of the Prevention of Corruption Act – Allowing appeal, SC held: despite the accused having been exonerated in the departmental proceedings yet the competent authority, vide Annexure P3 proceeded to accord sanction for prosecution. The High Court, in our considered view, failed to account for the principles enunciated by this Court in the case of State of Haryana & Ors. v. Bhajan Lal & Ors., (1992) SCC Suppl.1 33.

Bail – Allowing appeal, SC cancelled bail of two accused and held that despite their period of incarceration of more than 10 years would not be entitled to grant of bail for their subsequent conduct for which they are facing separate trial.

Indian Penal Code, 1860; Section 498A –Practice of state machinery being misused for ulterior motives and for causing harassment to the other side deprecated- Quashed FIR U/S 498A IPC and imposed costs of 5 Lakhs.

Code Of Criminal Procedure, 1973; Section 482 -Merely because the charge-sheet is filed cannot be a ground for the High Court to not invoke its jurisdiction under Section 482 of the Cr.P.C.-The Court would not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint at the stage of quashing of the proceedings under Section 482 Cr.P.C. However, the allegations made in the FIR/complaint, if taken at its face value, must disclose the commission of an offence and make out a case against the accused- Quashing FIR against appellants, SC observed: Merely because the appellants are close relatives of the Manager or Director of the said institute, cannot be a ground to involve them in criminal proceedings. Unless some material was placed on record to show that the appellants herein were in-charge of 5 the affairs of the said institute or had any role to play in the management of the institute or were involved in inducing the complainant and other students to give them admission against the unrecognized seats; in our view, the continuation of the criminal proceedings would be nothing else but an abuse of process of law.

Code Of Criminal Procedure, 1973; Section 378,386– scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles:-(a) That the judgment of acquittal suffers from patent perversity; (b) That the same is based on a misreading/omission to consider material evidence on record; (c) That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record- The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court – H.D. Sundara & Ors. v. State of Karnataka (2023) 9 SCC 581 and Rajesh Prasad v. State of Bihar (2022) 3 SCC 471. (Para 36-42)

Indian Evidence Act, 1872; Section 27- The statement of an accused recorded by a police officer under Section 27 of the Evidence Act is basically a memorandum of confession of the accused recorded by the Investigating Officer during interrogation which has been taken down in writing. The confessional part of such statement is inadmissible and only the part which distinctly leads to discovery of fact is admissible in evidence when the Investigating Officer steps into the witness box for proving such disclosure statement, he would be required to narrate what the accused stated to him. The Investigating Officer essentially testifies about the conversation held between himself and the accused which has been taken down into writing leading to the discovery of incriminating fact(s) – Referred to State of Uttar Pradesh v. Deoman Upadhyaya AIR 1960 SC 1125. (Para 58-60) – mere exhibiting of memorandum prepared by the Investigating Officer during investigation cannot tantamount to proof of its contents. While testifying on oath, the Investigating Officer would be required to narrate the sequence of events which transpired leading to the recording of the disclosure statement – Referred to Ramanand @ Nandlal Bharti v. State of Uttar Pradesh 2022 SCC OnLine SC 1396, Subramanya v. State of Karnataka 2022 SCC Online SC 1400, Mohd. Abdul Hafeez v. State of Andhra Pradesh (1983) 1 SCC 143. (Para 62-65)

Indian Evidence Act, 1872; Section 60 – Oral evidence in all cases must be direct. The section leaves no ambiguity and mandates that no secondary/hearsay evidence can be given in case of oral evidence, except for the circumstances enumerated in the section. In case of a person who asserts to have heard a fact, only his evidence must be given in respect of the same. (Para 61)

Code Of Criminal Procedure, 1973; Section 482 -Quashing a cheating case, SC observed: The matter was purely civil in nature. It was a case of money advancing for which no written document was executed to indicate its purpose or import as such whether it was a loan advance or an advance payment for transfer of property being land/building situate in Jaipur, is not borne out from any records. Such claim of the complainant that it was for transfer of property for land/building prescribed above, would be a matter of evidence to be led and established in the Court of law rather than the police investigating the same and finding out. It is not the case of complainant as stated in FIR that the plot/land as alleged by them which was to be transferred to them did not exist or had been sold or transferred to somebody else and therefore, there was an element of cheating by the accused persons. If the accused persons were not transferring the land and if the complainant could establish an agreement/contract with respect to the same in a Court of law, it ought to have filed a civil suit for appropriate relief.

Code Of Criminal Procedure, 1973; Section 200 – The right of the Complainant to file a petition under Section 200 Cr.P.C. is not taken away even if the Magistrate concerned does not direct that a Protest Petition be treated as a complaint- When the Magistrate is satisfied that a case is worth taking cognizance and fit for summoning the accused, the Magistrate ought to have followed the provisions and the procedure prescribed under Chapter XV of the Cr.P.C- Referred to Vishnu Kumar Tiwari vs. State of Uttar Pradesh (2019) 8 SCC 27. (Para 9,10)

Prevention Of Money Laundering Act, 2002; Section 2,3– In the absence of the scheduled offence, there cannot be any proceeds of crime within the meaning of clause (u) of subSection (1) of Section 2 of the PMLA. If there are no proceeds of crime, the offence under Section 3 of the PMLA is not made out. The reason is that existence of the proceeds of crime is a condition precedent for the applicability of Section 3 of the PMLA- Referred to Pavana Dibbur v. Directorate of Enforcement 2023 INSC 1029. (Para 4)

Code of Criminal Procedure, 1973; Section 200-204-Prevention Of Money Laundering Act, 2002; Section 3,44– Once a complaint is filed before the Special Court, the provisions of Sections 200 to 204 of the Cr.PC will apply to the Complaint. There is no provision in the PMLA which overrides the provisions of Sections 200 to Sections 204 of Cr.PC. Hence, the Special Court will have to apply its mind to the question of whether a prima facie case of a commission of an offence under Section 3 of the PMLA is made out in a complaint under Section 44(1)(b) of the PMLA. If the Special Court is of the view that no prima facie case of an offence under Section 3 of the PMLA is made out, it must exercise the power under Section 203 of the Cr.PC to dismiss the complaint. If a prima facie case is made out, the Special Court can take recourse to Section 204 of the Cr. PC. (Para 6)

Code Of Criminal Procedure, 1973; Section 439 – Appeal against cancellation of Bail – Strong criticism of the Hon’ble Chief Minister is not a violation of bail order- only by expressing his strong views about the demolition of the masjid and by demanding release of prisoners, it can be said that the appellant has misused the liberty granted to him .

Code Of Criminal Procedure, 1973; Section 406 -In exercise of power conferred under Section 406 of Cr.P.C., this Court would not transfer the investigation of an FIR- It is only when after investigation there is likelihood of causing some prejudice to an accused in the course of trial, that the power under Section 406 of Cr.P.C. can be invoked in exceptional cases and sparingly.- Referred to Ram Chander Singh Sagar (Dr) v. State of T.N., (1978) 2 SCC 35, para 1 and 2; State of U.P. v. State of Punjab, (2021) 19 SCC 519, para 24; Rhea Chakraborty v. State of Bihar, (2020) 20 SCC 184, para 19. [In this case, court invoked its powers under Article 142 of the Constitution of India and transfer all the four FIRs, to one and the same Investigating Agency, namely, Delhi Police.

Criminal Trial – Burden of Proof – Unless, under the relevant penal statute, there is a negative burden put on the accused or there is a reverse onus clause, the accused is not required to discharge any burden. In a case where there is a statutory presumption, after the prosecution discharges initial burden, the burden of rebuttal may shift on the accused. (Para 7)

Code Of Criminal Procedure, 1973 ; Section 378,386- While deciding an appeal against acquittal, the Appellate Court has to reappreciate the evidence. After re-appreciating the evidence, the first question that needs to be answered by the Appellate Court is whether the view taken by the Trial Court was a plausible view that could have been taken based on evidence on record. -Appellate Court can interfere with the order of acquittal only if it is satisfied after reappreciating the evidence that the only possible conclusion was that the guilt of the accused had been established beyond a reasonable doubt. The Appellate Court cannot overturn order of acquittal only on the ground that another view is possible. In other words, the judgment of acquittal must be found to be perverse. Unless the Appellate Court records such a finding, no interference can be made with the order of acquittal -An order of acquittal further strengthens the presumption of innocence of the accused. (Para 6)

Code Of Criminal Procedure, 1973 ; Section 161,162 – Statements recorded by police under Section 161 of the CrPC cannot be used for any purpose except to contradict the witness. (Para 9)

Code Of Criminal Procedure, 1973; Section 451 – Gujarat Prohibition Act; Section 98, 132– Section 451 of the Cr.P.C. would come into play when the article property seized during the course of inquiry or investigation is produced before the jurisdictional Court as per Clause (a) of Section 132 and the Court is called upon to pass appropriate orders for the proper custody of such article/property pending the conclusion of the inquiry or the trial -Section 98 deals with the Confiscation of the Articles whenever any offence punishable under the Act has been committed. The second part of sub-section (2) thereof would come into play when the Prohibition Officer or Police Officer sends the seized article liable to be confiscated but not required as an evidence, to the Collector as per Clause (b) of Section 132. (Para 14)

Code Of Criminal Procedure, 1973; Section 482, 397 – Limitation Act, 1963,Article 131 – In the event a revision is lawfully instituted before the High Court but the same is thereafter found to be not maintainable on some other ground, it would be open to the High Court to treat the same as a petition filed under Section 482 Cr.P.C in order to do justice in that case. However, the reverse analogy may not apply in all cases and it would not be open to the High Court to blindly convert or treat a petition filed under Section 482 Cr.P.C as one filed under Section 397 Cr.P.C., without reference to other issues, including limitation. When the specific remedy of revision was available, it could not have ignored the same and filed a petition under Section 482 Cr.P.C. (Para 25)- The limitation period for filing a criminal revision under Section 397 Cr.P.C, be it before the High Court or the Sessions Court, is 90 days. However, there is no limitation prescribed for invocation of the inherent powers of the High Court under Section 482 Cr.P.C. and it can be at any time. [In this case, the court noted that Long after the expiry of the limitation period of 90 days, the CBI filed a petition before the High Court at Allahabad under Section 482 Cr.P.C. This was obviously to get over the hurdle of the limitation for filing of a revision under Section 397 Cr.P.C, the court said]. (Para 23)

Indian Penal Code, 1860; Section 415-420 -Ingredients required to constitute an offence of cheating – Referred to Ram Jas v. State of U.P.(1970) 2 SCC 740 : ‘(i) there should be fraudulent or dishonest inducement of a person by deceiving him; (ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii) (b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property

Revenue Records – Revenue records are not documents of title; and nor would any findings pursuant to revenue proceedings under the Code confer any rights, title or interest – Questions of title can only be determined by a civil court of competent jurisdiction.

Code Of Criminal Procedure, 1973; Section 482 – Principles governing the exercise of jurisdiction of the High Court under Section 482 of the CrPC vis-à-vis the quashing of an FIR – Referred to State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 – Interplay between civil disputes and criminal proceedings – Referred to Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751 – Neither does the present case satisfy any of the parameters laid down by this Court in Bhajan Lal (Supra) warranting the exercise of jurisdiction under Section 482 of the CrPC vis-à-vis the quashing of an FIR; and nor can the allegation(s) levelled against the accused person(s) be classified as ‘purely civil in nature’ or merely ‘cloaked as a criminal offence’. Undoubtedly, the genesis of the present dispute emanates from civil proceedings qua the possession of the Suit Property, however, the dispute in its current avatar i.e. as is discernible from the allegation levelled against the Respondents in the FIR, has certainly undergone a metamorphosis into a criminal dispute which ought not to have been scuttled at the threshold, and in fact ought to have been considered on its own merits, in accordance with law. (Para 7)

Summary: Bail granted to accused cancelled.

Indian Penal Code, 1860; Section 306 -Mere statement in suicide note that ‘ X will be responsible for his suicide’ would not be a ground at all to issue summons to X to face the trial for the offence under Section 306, IPC. (Para 24)

Code Of Criminal Procedure, 1973; Section 204, 482- A petition filed under Section 482, Cr.PC, for quashing an order summoning the accused is maintainable – 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. In this context, we think it appropriate to state that one should understand that ‘taking cognizance’, empowered under Section 190, Cr.PC, and ‘issuing process’, empowered under Section 204, Cr.PC, are different and distinct. (Para 14)

Code Of Criminal Procedure, 1973; Section 204- Issuance of summons is a serious matter and, therefore, shall not be done mechanically and it shall be done only upon satisfaction on the ground for proceeding further in the matter against a person concerned based on the materials collected during the inquiry – sine qua non for exercise of the power under Section 204, Cr.PC, to issue process is the subjective satisfaction regarding the existence of sufficient ground for proceeding- while conducting an inquiry, the Magistrate could go into the merits of the evidence collected by the investigating agency to determine whether there are sufficient grounds for proceeding. (Para 9- 13)

Code Of Criminal Procedure, 1973; Section 173(2) – When a Final Report under Section 173 (2), Cr.PC, is filed before the Magistrate, which happens to be a negative report, usually called a “closure report”, he gets the following four choices to be adopted, taking into account the position obtained in the case concerned: (1) to accept the report and drop the Court proceedings (2) to direct further investigation to be made by the police (3) to investigate himself or refer for the investigation to be made by another Magistrate under Section 159, Cr.PC, (4) to take cognizance of the offence under Section 200, Cr.PC, as a private complaint when the materials are sufficient in his opinion and if the complainant is prepared for that course. (Para 8)

Indian Penal Code, 1860; Section 107,306 -In order to bring out an offence under Section 306, IPC specific abetment as contemplated by Section 107, IPC on the part of the accused with an intention to bring about the suicide of the person concerned as a result of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306, IPC – Referred to M Vijayakumar vs State Of Tamil Nadu 2024 INSC 177 – What matters in deciding the question whether there is ground for proceeding against a particular person and to issue summons to him to face the trial for the offence under Section 306, IPC is whether the complaint and the materials collected during the inquiry/investigation prima facie disclose mens rea on the part of the accused to bring about suicide of the victim. (Para 18-19)

Code Of Criminal Procedure, 1973; Section 482 – Appeal against HC order that quashed an FIR alleging withdrawal of salary by accused for the period was on unauthorized foreign trips and also withdrawal of salary by producing false medical certificate – Allowing appeal, SC observed: The allegations against the accused are of defrauding the State. How can such a matter be settled on the basis of a “compromise” between two private individuals?

Code Of Criminal Procedure, 1973; Section 378,386– Unless the finding of acquittal is found to be perverse or impossible, interference with the same would not be warranted – The High Court could have interfered in the criminal appeal only if it came to the conclusion that the findings of the trial Judge were either perverse or impossible- In any case, even if two views are possible and the trial Judge found the other view to be more probable, an interference would not have been warranted by the High Court, unless the view taken by the learned trial Judge was a perverse or impossible view. ((Para 9,19-20)

Criminal Trial – Circumstantial Evidence – It is necessary for the prosecution that the circumstances from which the conclusion of the guilt is to be drawn should be fully established – The accused ‘must be’ and not merely ‘may be’ proved guilty before a court can convict the accused -There is not only a grammatical but a legal distinction between ‘may be proved’ and ‘must be or should be proved’ – The facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty – The circumstances should be such that they exclude every possible hypothesis except the one to be proved.- 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 probabilities the act must have been done by the accused.(Para 7)

Indian Evidence Act, 1872; Section 114A – The condition precedent for applicability of Section 114A of the Evidence Act is that the prosecution must be for the offence of rape under various clauses set out therein under sub-Section (2) of Section 376 of the IPC – When this condition is not met, the presumption under Section 114A of the Evidence Act will not apply, and the burden will be on the prosecution to prove that the sexual intercourse was without the consent of the Prosecutrix. (Para 11)

Criminal Trial – Unless there is a specific legislative provision which puts a negative burden on the accused, there is no burden on the accused to lead evidence for proving his innocence. (Para 11)

Code Of Criminal Procedure, 1973; Section 294 -The essential ingredient of sub-Section (1) of Section 294 of the Cr.PC is that when any document is produced by the prosecution or the accused, the parties shall be called upon to admit or deny the genuineness of each such document – Even if a particular document is not disputed, the Court has the discretion to read or not to read the same in evidence without formal proof of the signature of the person to whom it purports to be signed. The Court always has the power to require the signature to be proved. (Para 21)

Bail– The purpose of directing an accused who has been released on bail to furnish surety is to ensure that the accused is present to answer further proceedings including at the trial. Determining the amount of surety at an unreasonably high amount effectively defeats the very purpose of the grant of bail and infringes the right to life and personal liberty of the accused protected by Article 21 of the Constitution. (Para 4)

Bail – In cases where the accused is a part of the police force and the allegation is that of custodial death, having regard to the overall influence a member of a police force may wield in connection with a case against them pertaining to custodial death, a stricter view is to be taken on the question of granting bail.

Code Of Criminal Procedure, 1973; Section 372,386 – Can High Court reverse acquittal of an accused from a particular charge while considering appeal filed by accused who was convicted under other charges ? In this case, appellant was convicted under Section 302 read with Section 34 of Indian Penal Code – High Court rejected the appeal preferred by the appellant and at the same time, reversed the acquittal of the appellant as recorded by the trial Court for the charge under Section 449 IPC; convicted him for the said offence. Partly allowing appeal, SC held: High Court committed grave error in law while reversing the acquittal of the accused as recorded by the trial Court for the offence under Section 449 IPC and sentencing him to suffer seven years rigorous imprisonment. It may be noted that the acquittal of the accused from the said charge had not been challenged either by the State or by the complainant before the High Court and without an appeal being filed for questioning the acquittal of the appellant from the said charge, the High Court could not have exercised jurisdiction so as to reverse the said finding of acquittal and that too, without putting the accused to notice.

Bail – Appeal against HC order granting bail to murder accused allowed – Setting aside bail order, SC observed: the High Court merely noticing the arguments raised primarily by the counsel for the respondent no.2 has directed for his release on bail, which cannot be legally sustained

Code Of Criminal Procedure, 1973; Section 438 – Anticipatory Bail – Grant of bail based on parity is not a claim of right – While applying this principle of parity, the Court is required to focus on the role attached to the accused whose application is under consideration – Referred to Tarun Kumar v. Assistant Director Directorate of Enforcement – [In this case, prime accused was granted bail and the role played by the mother accused was only to further the alleged acts of her son and she has not acted independently, to further aggravate the situation – So court confirmed anticipatory bail granted to her]

Indian Penal Code, 1860; Section 415,420 –For attracting the provision of Section 420 of IPC, the FIR/complaint must show that the ingredients of Section 415 of IPC are made out and the person cheated must have been dishonestly induced to deliver the property to any person; or to make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security. In other words, for attracting the provisions of Section 420 of IPC, it must be shown that the FIR/complaint discloses: (i) the deception of any person; (ii) fraudulently or dishonestly inducing that person to deliver any property to any person; and (iii) dishonest intention of the accused at the time of making the inducement – The dishonest inducement is the sine qua non to attract the provisions of Sections 415 and 420 of IPC.

Code of Criminal Procedure, 1973; Section 482- There is nothing in the words of this section which restricts the exercise of the power of the Court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. It is settled principle of law that the High Court can exercise jurisdiction under Section 482 CrPC even when the discharge application is pending with the trial court -Indeed, it would be a travesty to hold that proceedings initiated against a person can be interfered with at the stage of FIR but not if it has advanced and the allegations have materialised into a charge-sheet. On the contrary it could be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge-sheet after investigation. The power is undoubtedly conferred to prevent abuse of process of power of any court – Referred to Anand Kumar Mohatta and Another v. State (NCT of Delhi), Department of Home (2019) 11 SCC 706 : 2018 INSC 1060 and Haji Iqbal alias Bala through S.P.O.A. v. State of U.P. 2023 SCC OnLine SC 946 : 2023 INSC 688. (Para 21-22)

Criminal Trial – When the examination-in-chief of a material prosecution witness is being recorded, the presence of the Advocate for the accused is required. He has a right to object to a leading or irrelevant question being asked to the witness. If the trial is conducted in such a manner, an argument of prejudice will be available to the accused – Trial Court ought to provide a legal aid Advocate to the appellantsaccused so that the evidence of the prosecution witnesses could have been recorded in the presence of the Advocate representing the accused. (Para 5-6)

Code Of Criminal Procedure, 1973; Section 242– Indian Evidence Act, 1872; Section 138 – In a warrant case, in view of the proviso to the sub-section (3) of Section 242 of the Code of Criminal Procedure, 1973 , the Magistrate, by recording reasons, can permit cross examination of a witness to be postponed till a particular witness or witnesses are examined -The normal rule is that witnesses shall be examined in the order laid down in Section 138 of the Indian Evidence Act, 1872. Sub-section (3) of Section 242 of the Cr.PC is the exception to the rule. (Para 6)

Code Of Criminal Procedure, 1973; Section 482 – Appeal against judgment of High Court refusing to quash criminal proceedings against accused – SC held: A closer examination of the surrounding facts and circumstances fortifies the conclusion that an attempt has been made by the Respondent to shroud a civil dispute with a cloak of criminality- when the High Court was apprised of such a matter wherein the substance of the criminal complaint served only to cast doubt on the validity of a commercial transaction (in this case, a sale deed for the transfer of property), and the appropriate civil remedy was already being pursued, the High Court ought to have quashed the criminal proceedings.

Code Of Criminal Procedure, 1973; Section 228- Prevention of Corruption Act, 1988 -Income Tax Act, 1961 -In this case, the accused against whom charges were framed under the Prevention of Corruption Act, seek to rely upon findings recorded by authorities under the Income Tax Act- SC held: The scope of adjudication in both the proceedings are markedly different and therefore the findings in the latter cannot be a ground for discharge of the Accused Persons in the former. The proceedings under the Income Tax Act and its evidentiary value remains a matter of trial and they cannot be considered as conclusive proof for discharge of an accused – The probative value of the Orders of the Income Tax Authorities, including the Order of the Income Tax Appellate Tribunal and the subsequent Assessment Orders, are not conclusive proof which can be relied upon for discharge of the accused persons. These orders, their findings, and their probative value, are a matter for a full-fledged trial.

Code Of Criminal Procedure, 1973; Section 228– A strong suspicion founded on material on record which is ground for presuming the existence of factual ingredients of an offence would justify the framing of charge against an accused person [Referred to Onkar Nath Mishra & Ors. v. State (NCT of Delhi) & Anr. (2008) 2 SCC 45 561 Paragraph 11]. The Court is only required to consider judicially whether the material warrants the framing of charge without blindly accepting the decision of the prosecution [Referred to State of Karnataka v. L. Muniswamy & Ors. (1977) 2 SCC 699 Paragraph 10]

Information Technology Act, 2000; Section 67 – Indian Penal Code, 1860; Section 292- “Obscenity” has been similarly defined in Section 292 and Section 67 as material which is: i. lascivious; or ii. appeals to the prurient interest; or iii. its effect tends to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it. However, the difference between them is only that Section 67 is a special provision that applies when the obscene material is published or transmitted in the electronic form- The law on determining obscenity has been summarised and reiterated in Ajay Goswami v. Union of India : i. Obscenity must be judged with regard to contemporary mores and national standards. 49 ii. The work must be judged as a whole and the alleged offending material must also be separately examined to judge whether they are so grossly obscene that they are likely to deprave and corrupt the reader or viewer.50 There must be a clear and present danger that has proximate and direct nexus with the material. iii. All sex-oriented material and nudity per se are not always obscene.52 iv. The effect of the work must be judged from the standard of an average adult human being. Content cannot be regulated from the benchmark of what is appropriate for children as then the adult population would be restricted to read and see only what is fit for children. Likewise, regulation of material cannot be as per the standard of a hypersensitive man and must be judged as per an “ordinary man of common sense and prudence”Where art and obscenity are mixed, it must be seen whether the artistic, literary or social merit of the work overweighs its obscenity and makes the obscene content insignificant or trivial. In other words, there must be a preponderating social purpose or profit for the work to be constitutionally protected as free speech. Similarly, a different approach may have to be used when the material propagates ideas, opinions, and information of public interest as then the interest of society will tilt the balance in favour of protecting the freedom of speech (for example, with medical textbooks). vi. The Court must perform the task of balancing what is artistic and what is obscene. To perform this delicate exercise, it can rely on the evidence of men of literature, reputed and recognised authors to assess whether there is obscenity (Para 10-25)

Information Technology Act, 2000; Section 67 – Indian Penal Code, 1860; Section 292- The enquiry under Section 292 of the IPC or under Section 67 of the IT Act does not hinge on whether the language or words are decent, or whether they are commonly used in the country. Rather, the inquiry is to determine whether the content is lascivious, appeals to prurient interests, or tends to deprave and corrupt the minds of those in whose hands it is likely to fall – Vulgarity and profanities do not per se amount to obscenity. While a person may find vulgar and expletive-filled language to be distasteful, unpalatable, uncivil, and improper, that by itself is not sufficient to be ‘obscene’. Obscenity relates to material that arouses sexual and lustful thoughts, which is not at all the effect of the abusive language or profanities that have been employed in the episode. Rather, such language may evoke disgust, revulsion, or shock -the standard for determination cannot be an adolescent’s or child’s mind, or a hypersensitive person who is susceptible to such influences -The metric to assess obscenity and legality of any content cannot be that it must be appropriate to play in the courtroom while maintaining the court’s decorum and integrity. Such an approach unduly curtails the freedom of expression that can be exercised and compels the maker of the content to meet the requirements of judicial propriety, formality, and official language- The process and method that must be followed to objectively judge whether the material is obscene: The court must consider the work as a whole and then the specific portions that have been alleged to be obscene in the context of the whole work to arrive at its conclusion. Further, the court must first step into the position of the creator to understand what he intends to convey from the work and whether it has any literary or artistic value. It must then step into the position of the reader or viewer who is likely to consume the work and appreciate the possible influence on the minds of such reader- the availability of content that contains profanities and swear words cannot be regulated by criminalising it as obscene. Apart from being a non-sequitur, it is a disproportionate and excessive measure that violates freedom of speech, expression, and artistic creativity. (Para 34-36)

Information Technology Act, 2000; Section 67A – Section 67A criminalises publication, transmission, causing to publish or transmit – in electronic form – any material that contains sexually explicit act or conduct. Though the three expressions “explicit”, “act”, and “conduct” are open-textured and are capable of encompassing wide meaning, the phrase may have to be seen in the context of ‘obscenity’ as provided in Section 67. Thus, there could be a connect between Section 67A and Section 67 itself. For example, there could be sexually explicit act or conduct which may not be lascivious. Equally, such act or conduct might not appeal to prurient interests. On the contrary, a sexually explicit act or conduct presented in an artistic or a devotional form may have exactly the opposite effect, rather than tending to deprave and corrupt a person – When there is no allegation of any ‘sexually explicit act or conduct’ in the complaint but only about about excessive usage of vulgar expletives, swear words, and profanities, Section 67A does not get attracted. (Para 46-47)

Code Of Criminal Procedure, 1973; Section 482 – A court must exercise its jurisdiction to quash an FIR or criminal complaint when the allegations made therein, taken prima facie, do not disclose the commission of any offence.(Para 48)

Indian Penal Code, 1860; Section 375 – Rape by giving promise to marry – Appeal against HC judgment Quashing criminal proceedings against accused dismissed- The allegations in the FIR so also in the restatement made before the Dy. S.P.,, do not, on their face, indicate that the promise by accused No. 1 was false or that the complainant engaged in the sexual relationship on the basis of such false promise. This apart from the fact that the prosecutrix has changed her version. The version of events given by the prosecutrix in the restatement is totally contrary to the one given in the FIR -Referred to Pramod Suryabhan Pawar v. State of Maharashtra (2019) 9 SCC 608 and Shambhu Kharwar v. State of Uttar Pradesh 2022 SCC OnLine SC 1032. (Para 15)

Code Of Criminal Procedure, 1973; Section 482 – The power of quashing the criminal proceedings should be exercised very sparingly and with circumspection and that too in the rarest of rare casees- the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint. (Para 18)

Code Of Criminal Procedure, 1973; Section 389 – High Court rejected accused’s plea for suspension of sentence on the ground that he had faced charge under Section 302 IPC though his actual conviction was for commission of offence under Part 2 of Section 304 IPC, Allowing appeal, SC observed: The offence he was charged with is of little relevance in a proceeding of this nature. There is no other factor which could justify his continued detention. Moreover, as the appellant has covered more than 2/3rd of the punishment imposed, we do not think he ought to remain detained till conclusion of hearing of the appeal. We, accordingly, suspend the sentence of the appellant and direct his release on bail on such conditions the Trial Court may consider fit and proper.

Code of Criminal Procedure, 1973; Section 438, 83- In the absence of any interim order, pendency of an application for anticipatory bail shall not bar the Trial Court in issuing/proceeding with steps for proclamation and in taking steps under Section 83, Cr.PC, in accordance with law. (Para 23)

Code of Criminal Procedure, 1973; Section 438 –Filing of an Anticipatory Bail Application by the petitioners-accused through their advocate cannot be said to be an appearance of the petitioners-accused in a competent Court, so far as proceeding initiated under Section 82/83 of the Code is concerned – Approved Savitaben Govindbhai Patel & Ors. v. State of Gujarat 2004 SCC OnLine Guj 345

Code of Criminal Procedure, 1973; Section 438 -Nothing prevents the court from adjourning such an application without passing an interim order – In view of the proviso under Section 438(1), Cr.PC, it cannot be contended that if, at the stage of taking up the matter for consideration, the Court is not rejecting the application, it is bound to pass an interim order for the grant of anticipatory bail- Approved Shrenik Jayantilal Jain and Anr. v. State of Maharashtra Through EOW Unit II, Mumbai 2014 SCC Online Bom 549. (Para 23)

Code of Criminal Procedure, 1973; Section 438 –The power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. At any rate, when warrant of arrest or proclamation is issued, the applicant is not entitled to invoke the extraordinary power. Certainly, this will not deprive the power of the Court to grant pre-arrest bail in extreme, exceptional cases in the interest of justice. But then, person(s) continuously, defying orders and keep absconding is not entitled to such grant. (Para 24)

Code of Criminal Procedure, 1973; Section 82-The sine qua non for initiation of an action under Section 82, Cr. PC is prior issuance of warrant of arrest by the Court concerned. (Para 10)

Code of Criminal Procedure, 1973; Section 374 – While adjudicating an appeal against conviction and sentence, the appellate court is required to consider all the points dealt with by the trial court by independently applying its mind and re-appreciating the evidence.- Referred to Badan Singh v. State of Madhya Pradesh, (2003) 12 SCC 792 and State of Karnataka v. Papanaika. (2004) 13 SCC 180 – Referred to State of Rajasthan v. Dhool Singh, (2004) 12 SCC 546- Re: the trend of High Courts routinely reducing sentences to periods of incarceration already undergone: The courts should bear in mind that there is a requirement in law that every conviction should be followed by an appropriate sentence within the period stipulated in law. Discretion in this regard is not absolute or whimsical. It is controlled by law and to some extent by judicial discretion, applicable to the facts of the case. Therefore, there is a need for the courts to apply its mind while imposing sentence. (Para 5-7)

Criminal Trial – Circumstantial Evidence – The principles required to bring home the charges in a case based purely on circumstantial evidence have been crystalized in the case of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 – “(1) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely “may be”, fully established. (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. (Para 23)

Code Of Criminal Procedure, 1973; Section 378,386- The scope of interference by the High Court in exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378(1)(b) CrPC were reiterated in the case of H.D. Sundara and 10 Others v. State of Karnataka, (2023) 9 SCC 581- (a) The acquittal of the accused further strengthens the presumption of innocence; (b) The appellate Court, while hearing an appeal against acquittal, is entitled to re­appreciate the oral and documentary evidence; (c) The appellate Court, while deciding an appeal against acquittal, after re­appreciating the evidence, is required to consider whether the view taken by the Trial Court is a possible view which could have been taken on the basis of the evidence on record; (d) If the view taken is a possible view, the appellate Court cannot overturn the order of acquittal on the ground that another view was also possible; and (e) The appellate Court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible. (Para 24)

Indian Evidence Act, 1872; Section 25 –Confession of an accused in custody recorded by a police officer is inadmissible in evidence as the same would be hit by Section 25 of the Evidence Act. Thus, that part of the statement of A1 as recorded in the report/communication (Exhibit­96), wherein he allegedly confessed to the crime of murder of the jeep driver and looting the jeep and named the other accused persons as particeps criminis is totally inadmissible and cannot be read in evidence except to the extent provided under Section 27 of the Evidence Act.- disclosure statement of accused cannot be read in evidence against the other accused – Referred to Haricharan Kurmi v. State of Bihar reported in AIR 1964 SC 1184- The interrogation note of accused being hit by Section 25 of the Evidence Act cannot be read in evidence for any purpose whatsoever. (Para 29,36)

Criminal Trial -Referred to Mustkeem alias Sirajudeen v. State of Rajasthan (2011) 11 SCC 724 – the solitary circumstance of recovery of blood­stained weapons cannot constitute such evidence which can be considered sufficient to convict an accused for the charge of murder- Even if it is assumed for a moment that such recoveries were effected, the same did not lead to any conclusive circumstance in form of Serological report establishing the presence of the same blood group as that of the deceased and hence they do not further the cause of prosecution. In addition thereto, we find that the prosecution failed to lead the link evidence mandatorily required to establish the factum of safe keeping of the muddamal articles and hence, the recoveries became irrelevant (Para 35)

Code Of Criminal Procedure, 1973; Section 173 – Supreme Court expressed concern after it noticed that the investigating officers while submitting the chargesheet/Police Report do not comply with the requirements of Section 173 CrPC- Though it is true that the form of the report to be submitted under Section 173(2) has to be prescribed by the State Government and each State Government has its own Police Manual to be followed by the police officers while discharging their duty, the mandatory requirements required to be complied with by such officers in the Police Report/Chargesheet are laid down in Section 173, more particularly sub-section (2) thereof – Report of police officer on the completion of investigation shall contain the following: – (i) A report in the form prescribed by the State Government stating- (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties; (g) whether he has been forwarded in custody under section 170. (h) Whether the report of medical examination of the woman has been attached where investigation relates to an offence under [sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB] or section 376E of the Indian Penal Code (45 of 1860)” (ii) If upon the completion of investigation, there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, the Police officer in charge shall clearly state in the Report about the compliance of Section 169 Cr.PC. (iii) When the report in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report, all the documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; and the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses. (iv) In case of further investigation, the Police officer in charge shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed and shall also comply with the details mentioned in the above sub para (i) to (iii) – The officer in charge of the police stations in every State shall strictly comply with the afore-stated directions, and the non-compliance thereof shall be strictly viewed by the concerned courts in which the Police Reports are submitted- Once from the material produced along with the chargesheet, the court is satisfied about the commission of an offence and takes cognizance of the offence allegedly committed by the accused, it is immaterial whether the further investigation in terms of Section 173(8) is pending or not. The pendency of the further investigation qua the other accused or for production of some documents not available at the time of filing of chargesheet would neither vitiate the chargesheet, nor would it entitle the accused to claim right to get default bail on the ground that the chargesheet was an incomplete chargesheet or that the chargesheet was not filed in terms of Section 173(2) of Cr.P.C – Referred to CBI vs. Kapil Wadhwan (Para 12- 17)

Code Of Criminal Procedure, 1973; Section 173 – Though there are various reports required to be submitted by the police in charge of the police station before, during and after the investigation as contemplated in Chapter XII of Cr.P.C., it is only the report forwarded by the police officer to the Magistrate under sub-section (2) of Section 173 Cr.P.C. that can form the basis for the competent court for taking cognizance thereupon. A chargesheet is nothing but a final report of the police officer under Section 173(2) of Cr.P.C. It is an opinion or intimation of the investigating officer to the concerned court that on the material collected during the course of investigation, an offence appears to have been committed by the particular person or persons, or that no offence appears to have been committed- When such a Police Report concludes that an offence appears to have been committed by a particular person or persons, the Magistrate has three options: (i) he may accept the report and take cognizance of the offence and issue process, (ii) he may direct further investigation under sub-section (3) of Section 156 and require the police to make a further report, or (iii) he may disagree with the report and discharge the accused or drop the proceedings. If such Police Report concludes that no offence appears to have been committed, the Magistrate again has three options: (i) he may accept the report and drop the proceedings, or (ii) he may disagree with the report and 9 taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process, or (iii) he may direct further investigation to be made by the police under sub-section (3) of Section 156.

Code of Criminal Procedure, 19973; Section 482- Though inherent powers of a High Court under Section 482 of the Code of Criminal Procedure should be exercised sparingly, yet the High Court must not hesitate in quashing such criminal proceedings which are essentially of a civil nature -Where a dispute which is essentially of a civil nature, is given a cloak of a criminal offence, then such disputes can be quashed, by exercising 8 the inherent powers under Section 482 of the Code of Criminal Procedure Referred to Paramjeet Batra v. State of Uttarakhand (2013) 11 SCC 673- Randheer Singh v. State of U.P. (2021) 14 SCC 626 and Usha Chakraborty & Anr. v. State of West Bengal & Anr. 2023 SCC OnLine SC 90. (Para 5-6)- Indian Penal Code, 1860; Section 415-420– A mere breach of contract, by one of the parties, would not attract prosecution for criminal offence in every case – Referred to Sarabjit Kaur v. State of Punjab and Anr. (2023) 5 SCC 360 – Every breach of contract would not give rise to the offence of cheating, and it is required to be shown that the accused had fraudulent or dishonest intention at the time of making the promise Vesa Holdings (P) Ltd. v. State of Kerala, (2015) 8 SCC 293. (Para 7) [In this case, quashing the criminal proceedings, SC observed: The dispute between the parties was not only essentially of a civil nature but in this case the dispute itself stood settled later as we have already discussed above. We see no criminal element here and consequently the case here is nothing but an abuse of the process.

Code of Criminal Procedure, 1973; Section 482- Principles governing the exercise of jurisdiction under Section 482 CrPC by High Courts vis-à-vis quashing of an FIR, criminal proceeding or complaint reiterated – Referred to Gian Singh v. State of Punjab, (2012) 10 SCC 303 [Appellant neither entered into any settlement with the Accused Persons nor was courting any such idea- High Court proceeded to quash the FIR; and the proceedings emanating thereof in exercise of its jurisdiction under Section 482 CrPC- HC judgment set aside]

Code Of Criminal Procedure, 1973; Section 438 – Anticipatory Bail – When anticipatory bail is granted to an accused, the effect of the said order is that in the event of the arrest of the accused, he has to be forthwith released on bail. After coming to the conclusion that the accused is entitled to anticipatory bail, the High Court could not have passed the order directing that in the event of arrest of the accused or surrender before the learned Trial Court within a period of six weeks from the date of the order, he shall be enlarged on bail. The meaning of the said order is that if the appellant fails to surrender before the Trial Court within a period of six weeks or he is not arrested within six weeks, he will be deprived of the relief of anticipatory bail. Such approach is not contemplated by sub-section 1 of Section 438.