Supreme Court Half Yearly Digest 2023 [Code of Criminal Procedure, 1973]

Code of Criminal Procedure, 1973 - Difference in the power of Police to register and investigate an FIR under Section 154(1) read with 157 of the Code, and the Magistrate’s direction to register an FIR under Section 156(3) of the Code. Power of the Magistrate to direct registration of an FIR under Section 156(3) in contrast with post-cognizance stage power under Section 202 of the Code – Explained. (Para 23 -38) Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023 LiveLaw (SC) 396 : 2023 INSC 494

Code of Criminal Procedure, 1973 - Inherent power of the High Court under the Code to quash the FIR – Explained. (Para 19-22) Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023 LiveLaw (SC) 396 : 2023 INSC 494

Code of Criminal Procedure, 1973 - Principles in respect of the exercise of power under Section 482 Cr.P.C. – Explained. Peethambaran v. State of Kerala, 2023 LiveLaw (SC) 402 : 2023 INSC 481

Code of Criminal Procedure, 1973 - Section 173(3) read with Section 158 does not permit the Secretary (Home) to order for further investigation or reinvestigation by another agency - The order passed by the Secretary (Home) transferring the investigation / ordering further investigation by another agency and that too, on the basis of the application / complaint submitted by mother of the accused is unknown to law - In any case, as it is a case of reinvestigation, the same is not permissible and that too by another agency without the prior permission of the learned Magistrate even while exercising the powers under Section 173(8) of the Cr.P.C. (Para 7.1, 7.3) Bohatie Devi v. State of Uttar Pradesh, 2023 LiveLaw (SC) 376 : 2023 INSC 465

Code of Criminal Procedure, 1973 - The power under the Code to investigate generally consists of following steps: (a) proceeding to the spot; (b) ascertainment of facts and circumstances of the case; (c) discovery and arrest of the suspected offender; (d) collection of evidence relating to commission of offence, which may consist of examination of various persons, including the person accused, and reduction of the statement into writing if the officer thinks fit; (e) the search of places of seizure of things considered necessary for investigation and to be produced for trial; and (f) formation of opinion as to whether on the material collected there is a case to place the accused before the Magistrate for trial and if so, taking the necessary steps by filing a chargesheet under Section 173. (Para 12) Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023 LiveLaw (SC) 396 : 2023 INSC 494

Code of Criminal Procedure, 1973 - No accused can be permitted to play with the investigation and/or the court’s process. No accused can be permitted to frustrate the judicial process by his conduct. It cannot be disputed that the right of custodial interrogation/ investigation is also a very important right in favour of the investigating agency to unearth the truth, which the accused has purposely and successfully tried to frustrate. Therefore, by not permitting the CBI to have the police custody interrogation for the remainder period of seven days, it will be giving a premium to an accused who has been successful in frustrating the judicial process. (Para 8) Central Bureau of Investigation v. Vikas Mishra @ Vikash Mishra, 2023 LiveLaw (SC) 283 : AIR 2023 SC 1808 : (2023) 6 SCC 49 : 2023 INSC 345

Code of Criminal Procedure, 1973 - Powers of the Appellate Court while dealing with the appeal against an order of acquittal - General principles discussed. (Para 14) Siju Kurian v. State of Karnataka, 2023 LiveLaw (SC) 338 : AIR 2023 SC 2239 : 2023 INSC 378

Code of Criminal Procedure, 1973 - Supreme Court directs Police to not file closure report in cases where proceedings/FIR have been quashed by the High Court - In case of quashing of the criminal proceedings/FIRs by the High Court, there is no question of preparing/filing a closure report under Section 173 Cr.P.C. State of Uttarakhand v. Umesh Kumar Sharma, 2023 LiveLaw (SC) 335

Code of Criminal Procedure, 1973 – Remand - There seems to be a practice followed by Courts to remand the accused to custody, the moment they appear in response to the summoning order. The correctness of such a practice has to be tested in an appropriate case. (Para 10) Mahdoom Bava v. Central Bureau of Investigation, 2023 LiveLaw (SC) 218 : AIR 2023 SC 1570 : 2023 INSC 263

Code of Criminal Procedure, 1973 - High Courts should endeavour to ensure that all basic essentials (i.e. FIR No., Date, the concerned police station and the offences allegedly committed etc.) are duly recorded or reflected in the format of the bail orders. Ravish Kumar v. State of Bihar, 2023 LiveLaw (SC) 206

Code of Criminal Procedure, 1973 - Prevention of Money-laundering Act, 2002; Section 46(1), 65, 71 - The provisions of the Cr.P.C. are applicable to all proceedings under the Act including proceedings before the Special Court, except to the extent they are specifically excluded. Hence, Section 71 of the PMLA providing an overriding effect, has to be construed in tune with Section 46(1) and Section 65. (Para 28-29) Rana Ayyub v. Directorate of Enforcement, 2023 LiveLaw (SC) 86 : AIR 2023 SC 875 : (2023) 4 SCC 357 : 2023 INSC 101

Chapter XII - Information to the Police and their Powers to Investigate

Code of Criminal Procedure Code, 1973 - Chapter XII - The Investigating Officer is the person tasked with determining a direction, the pace, manner and method of the investigation. (Para 38 - 43) Maghavendra Pratap Singh @ Pankaj Singh v. State of Chhattisgarh, 2023 LiveLaw (SC) 358 : 2023 INSC 415

Code of Criminal Procedure Code, 1973 - Chapter XII - Whether the Investigating Officer had complied with the duties and responsibilities cast upon him - Held, the Investigating Officer did not examine the owner of the house; (b) did not enter his movement in the case diary; (c) did not record that he took the accused for effecting the recovery; (d) was not able to describe clearly the area from where the recovery was effected; (e) admits both the independent witnesses, who do not belong to the area from where the recoveries were effected; (f) does not associate any of the residents of the area for conducting the search; (g) does not examine any of the residents for carrying out any further investigation and (h) Most importantly he admits that both the memo of arrest as also the recovery not to have been prepared by him or bearing his signature and the same too, have many corrections and over­writing, thus reducing the correctness and authenticity of this document. Furthermore, he is not clear about the description of the articles recovered. The Investigating Officer did not meet the obligations he was under. Numerous infirmities affected the conduct of the Investigation Officer calling into question, credibly, the investigation conducted by him or upon his directions. (Para 35) Maghavendra Pratap Singh @ Pankaj Singh v. State of Chhattisgarh, 2023 LiveLaw (SC) 358 : 2023 INSC 415

Chapter XXV - Provisions as to accused persons of Unsound Mind

Code of Criminal Procedure, 1973; Chapter XXV; Sections 328 to 339 - Though procedural in nature, Chapter XXV becomes substantive when it deals with an accused person of unsound mind - There is not even a need for an application under Section 329 of Cr.P.C. in finding out as to whether an accused would be sound enough to stand a trial, rather it is the mandatory duty of the Court -The whole idea under the provisions discussed is to facilitate a person of unsound mind to stand trial, not only because of his reasoning capacity, but also to treat him as the one who is having a disability. The role of the Court is to find the remedial measures and do complete justice. (Para 15-16) Prakash Nayi @ Sen v. State of Goa, 2023 LiveLaw (SC) 71 : (2023) 5 SCC 673 : (2023) 1 SCR 823 : 2023 INSC 24

Section 41 - When police may arrest without warrant

Code of Criminal Procedure, 1973; Section 41, 154 - To strike a balance, distinction is drawn between power of arrest of an accused person under Section 41 and registration of an FIR under Section 154 of the Code. While registration of an FIR is mandatory, the arrest of the accused on registration of the FIR is not. FIR is registered on the basis of information without any qualification like credible, reasonable or true information. Reasonableness or credibility of information is not a condition precedent for registration of the FIR. However, for making arrest in terms of Section 41(1)(b) or (g), the legal requirements and mandate is reflected in the expression ‘reasonable complaint’ or ‘credible information’. (Para 15) Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023 LiveLaw (SC) 396 : 2023 INSC 494

Section 102 - Power of police officer to seize certain property

Code of Criminal Procedure, 1973; Section 102 - Company's bank account cannot be frozen for criminal investigation against an unrelated party. Jermyn Capital LLC Dubai v. CBI, 2023 LiveLaw (SC) 412 : 2023 INSC 509

Section 173 - Report of police officer on completion of investigation

Code of Criminal Procedure, 1973; Section 173 (8) - Victim has a fundamental right of fair investigation and fair trial. Therefore, mere filing of the chargesheet and framing of the charges cannot be an impediment in ordering further investigation / re-investigation / de novo investigation, if the facts so warrant. (Para 12.3) Anant Thanur Karmuse v. State of Maharashtra, 2023 LiveLaw (SC) 136 : (2023) 5 SCC 802 : 2023 INSC 168

Code of Criminal Procedure 1973 - Sections 173, 207 - Direction to publicly upload chargesheets against the scheme of Cr.P.C. - If all the chargesheets and relevant documents produced along with the chargesheets are put on the public domain or on the websites of the State Governments it will be contrary to the Scheme of the Criminal Procedure Code and it may as such violate the rights of the accused as well as the victim and/or even the investigating agency. Putting the FIR on the website cannot be equated with putting the chargesheets along with the relevant documents on the public domain and on the websites of the State Governments. (Para 4.5) Saurav Das v. Union of India, 2023 LiveLaw (SC) 52 : AIR 2023 SC 615 : 2023 INSC 76

Section 154 - Information in cognizable cases

Code of Criminal Procedure, 1973; Section 154 - Registration of an FIR - Mandatory nature of Section 154(1) of the Code – Explained. (Para 14-18) Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023 LiveLaw (SC) 396 : 2023 INSC 494

Code of Criminal Procedure, 1973; Section 154 and 157 - there is a distinction between Section 154 and 157 as the latter provision postulates a higher requirement than under Section 154 of the Code. Under Section 157(1) of the Code, a Police officer can foreclose the investigation if it appears to him that there is no sufficient ground to investigate. The requirement of Section 157(1) for the Police officer to start investigation is that he has “reason to suspect the commission of an offence”. Therefore, the Police officer is not liable to launch investigation in every FIR which is mandatorily registered on receiving information relating to commission of a cognizable offence. When the Police officer forecloses investigation in terms of clauses (a) and (b) of the proviso to Section 157(1), he must submit a report to the Magistrate. Here, the Magistrate can direct the Police to investigate, or if he thinks fit, hold an inquiry. Where a Police officer, in a given case, proceeds to investigate the matter, then he files the final report under Section 173 of the Code. The noticeable feature of the scheme is that the Magistrate is kept in the picture at all stages of investigation, but he is not authorised to interfere with the actual investigation or to direct the Police how the investigation should be conducted. (Para 16) Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023 LiveLaw (SC) 396 : 2023 INSC 494

Code of Criminal Procedure 1973; Section 154 - Principles of natural justice are not applicable at the stage of reporting a criminal offence - Code of Criminal Procedure, 1973 does not provide for right of hearing before the registration of an FIR. (Para 30) State Bank of India v. Rajesh Agarwal, 2023 LiveLaw (SC) 243 : AIR 2023 SC 1859 : (2023) 6 SCC 1 : 2023 INSC 303

Code of Criminal Procedure, 1973; Section 154 - Delay in registering FIR - The immediate lodging of an FIR removes suspicion with regard to over implication of number of persons, particularly when the case involved a fight between two groups. When the parties are at loggerheads, the immediate lodging of the FIR provides credence to the prosecution case. (Para 31) Nand Lal v. State of Chhattisgarh, 2023 LiveLaw (SC) 186 : AIR 2023 SC 1599 : [2023] 2 SCR 276 : 2023 INSC 224

Section 156 - Police officer‘s power to investigate cognizable case

Code of Criminal Procedure, 1973; Section 156(3) - Proposed accused has right to be heard in revision filed under Section 401 Cr.P.C. against dismissal of petition under Section 156(3) Cr. P.C. Santhakumari v. State of Tamil Nadu, 2023 LiveLaw (SC) 465

Code of Criminal Procedure 1973; Section 156(3) - In order to cause registration of an F.I.R. and consequential investigation based on the same the petition filed under Section 156(3), Cr.P.C., must satisfy the essential ingredients to attract the alleged offences. In other words, if such allegations in the petition are vague and are not specific with respect to the alleged offences it cannot lead to an order for registration of an F.I.R. and investigation on the accusation of commission of the offences alleged. (Para 10) Usha Chakraborty v. State of West Bengal, 2023 LiveLaw (SC) 67 : AIR 2023 SC 688 : 2023 INSC 86

Code of Criminal Procedure 1973; Section 156(3) - Supreme Court quashes criminal proceedings after noting that the attempt was to give a cloak of criminal offence to a civil dispute. The Court noted that the application filed under Section 156(3) Cr.P.C. were vague and did not attract the essential ingredients of the offences. Also, the pendency of a civil suit on the issue was suppressed in the application. Usha Chakraborty v. State of West Bengal, 2023 LiveLaw (SC) 67 : AIR 2023 SC 688 : 2023 INSC 86

Section 164 - Recording of confessions and statements

Code of Criminal Procedure, 1973; Section 164 - Non-examination of the statement under section 164 Cr.P.C. also has no relevance or bearing to the findings and conclusions arrived at by the courts below. It was for the Investigating Officer to have got the statement under section 164 Cr.P.C. recorded. If he did not think it necessary in his wisdom, it cannot have any bearing on the testimony of PW-1 and the other material evidence led during trial. (Para 22) Ajai @ Ajju v. State of Uttar Pradesh, 2023 LiveLaw (SC) 110 : AIR 2023 SC 996 : 2023 INSC 127

Section 167 - Procedure when investigation cannot be completed in twenty-four hours

Code of Criminal Procedure, 1973; Section 167(2) - Default Bail - If NIA as well as the State investigating agency they want to seek extension of time for investigation, they must be careful that such extension is not prayed for at the last moment - The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application or subsequent filing of the chargesheet or a report seeking extension of time by the prosecution before the court. However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a chargesheet, or a report seeking extension of time is preferred before the Magistrate or any other competent court, the right to default bail would be extinguished. The court would be at liberty to take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the accused may still be released on bail under other provisions of the CrPC. Judgebir Singh @ Jasbir Singh @ Jasbir v. National Investigation Agency, 2023 LiveLaw (SC) 377 : 2023 INSC 472

Code of Criminal Procedure, 1973; Section 167(2) - Filing of a chargesheet is sufficient compliance with the provisions of Section 167 of the CrPC and that an accused cannot claim any indefeasible right of being released on statutory / default bail under Section 167(2) of the CrPC on the ground that cognizance has not been taken before the expiry of the statutory time period to file the chargesheet - Grant of sanction is nowhere contemplated under Section 167 of the CrPC - Once a final report has been filed, that is the proof of completion of investigation and if final report is filed within the period of 180 days or 90 days or 60 days from the initial date of remand of accused concerned, he cannot claim that a right has accrued to him to be released on bail for want of filing of sanction order. (Para 44, 63) Judgebir Singh @ Jasbir Singh @ Jasbir v. National Investigation Agency, 2023 LiveLaw (SC) 377 : 2023 INSC 472

Code of Criminal Procedure, 1973; Section 167(2), 193 - National Investigation Agency Act, 2008; Section 16 - Error on the part of the investigating agency in filing chargesheet first before the Court of Magistrate has nothing to do with the right of the accused to seek statutory / default bail under Section 167(2) of the CrPC. The committal proceedings are not warranted, when it comes to prosecution under the UAPA by the NIA by virtue of Section 16 of the NIA Act. This is because the Special Court acts as one of the original jurisdictions. By virtue of Section 16 of the NIA Act, the Court need not follow the requirements of Section 193 of the CrPC. Judgebir Singh @ Jasbir Singh @ Jasbir v. National Investigation Agency, 2023 LiveLaw (SC) 377 : 2023 INSC 472

Code of Criminal Procedure, 1973; Section 167(2), Section 173 - We find no merit in the principal argument canvassed on behalf of the appellants that a chargesheet filed without sanction is an incomplete chargesheet which could be termed as not in consonance with sub section (5) of Section 173 of the CrPC - Once a final report has been filed with all the documents on which the prosecution proposes to rely, the investigation shall be deemed to have been completed - Once a final report has been filed, that is the proof of completion of investigation and if final report is filed within the period of 180 days or 90 days or 60 days from the initial date of remand of accused concerned, he cannot claim that a right has accrued to him to be released on bail for want of filing of sanction order. Judgebir Singh @ Jasbir Singh @ Jasbir v. National Investigation Agency, 2023 LiveLaw (SC) 377 : 2023 INSC 472

Code of Criminal Procedure, 1973; Section 167 - Filing incomplete chargesheet without completing investigation would not extinguish the right of accused to get default bail. Ritu Chhabaria v. Union of India, 2023 LiveLaw (SC) 352 : 2023 INSC 436

Code of Criminal Procedure, 1973; Section 167(2) - Accused cannot claim the benefit of default bail, when he did not challenge the first extension of time granted for investigation and the second extension was granted in his presence and when the chargesheet was subsequently filed within the period of extension. Qamar Ghani Usmani v. State of Gujarat, 2023 LiveLaw (SC) 297 : AIR 2023 SC 1901 : (2023) 2 SCR 824 : 2023 INSC 337

Code of Criminal Procedure, 1973; Section 167(2) - It is true that in the case of Central Bureau of Investigation v. Anupam J. Kulkarni, reported in (1992) 3 SCC 141, this Court observed that there cannot be any police custody beyond 15 days from the date of arrest. In our opinion, the view taken by this Court in the case of Anupam J. Kulkarni (supra) requires re-consideration. (Para 7, 7.1) Central Bureau of Investigation v. Vikas Mishra @ Vikash Mishra, 2023 LiveLaw (SC) 283 : AIR 2023 SC 1808 : (2023) 6 SCC 49 : 2023 INSC 345

Code of Criminal Procedure, 1973; Section 167 - The day of remand is to be included for considering a claim for default bail - the stipulated 60/90 day remand period under Section 167 CrPC ought to be computed from the date when a Magistrate authorizes remand - In cases where the chargesheet / final report is filed on or after the 61st/91st day, the accused in our considered opinion would be entitled to default bail. In other words, the very moment the stipulated 60/90 day remand period expires, an indefeasible right to default bail accrues to the accused - 3 judge bench answers reference. Enforcement Directorate v. Kapil Wadhawan, 2023 LiveLaw (SC) 249 : 2023 INSC 723

Code of Criminal Procedure, 1973; Proviso to Section 167(2) - Default bail can be cancelled on merits - there is no absolute bar that once a person is released on default bail under Section 167(2) Cr.P.C., his bail cannot be cancelled on merits and his bail can be cancelled on other general grounds like tampering with the evidence/witnesses; not cooperating with the investigating agency and/or not cooperating with the concerned Trial Court etc. [Para 11] State through CBI v. T. Gangi Reddy @ Yerra Gnagi Reddy, 2023 LiveLaw (SC) 37 : AIR 2023 SC 457 : (2023) 4 SCC 253 : (2023) 1 SCR 741 : 2023 INSC 44

Code of Criminal Procedure, 1973; Proviso to Section 167(2) - Grant of Default Bail - the bail so granted is not on merits - when an accused is released on default bail they are released on furnishing the bail bond by them on the failure of the investigating agency to complete the investigation and file the chargesheet within the stipulated time mentioned therein - the object and purpose of proviso to Section 167(2) Cr.P.C. is to impress upon the need for expeditious investigation within the prescribed time limit and to prevent laxity - the object is to inculcate a sense of its urgency and on default the Magistrate shall release the accused if he is ready and does furnish bail - it cannot be said that order of release on bail under proviso to Section 167(2) Cr.P.C. is an order on merits. [Para 8.1] State through CBI v. T. Gangi Reddy @ Yerra Gnagi Reddy, 2023 LiveLaw (SC) 37 : AIR 2023 SC 457 : (2023) 4 SCC 253 : (2023) 1 SCR 741 : 2023 INSC 44

Code of Criminal Procedure, 1973; Proviso to Section 167(2) - Grant of Default Bail - deemed to be released under provisions of Chapter XXXIII of the Cr.P.C., which includes Section 437 and 439 also - deeming fiction under Section 167(2) Cr.P.C. cannot be interpreted to the length of converting the order of default bail, which is not on merits as if passed on merits. [Para 8.1] State through CBI v. T. Gangi Reddy @ Yerra Gnagi Reddy, 2023 LiveLaw (SC) 37 : AIR 2023 SC 457 : (2023) 4 SCC 253 : (2023) 1 SCR 741 : 2023 INSC 44

Code of Criminal Procedure, 1973; proviso to Section 167(2) - Grant of Default Bail - the merits brought out in the chargesheet and attending circumstances are relevant, as the bail was granted due to default of the investigating officer without Court's adverting to the merits but strong grounds are necessary to cancel the bail and mere filing of the chargesheet itself is not sufficient. [Para 9.2, 9.4, 9.7] State through CBI v. T. Gangi Reddy @ Yerra Gnagi Reddy, 2023 LiveLaw (SC) 37 : AIR 2023 SC 457 : (2023) 4 SCC 253 : (2023) 1 SCR 741 : 2023 INSC 44

Code of Criminal Procedure, 1973; Proviso to Section 167(2) - Grant of Default Bail - Order granting bail shall be deemed to be under Section 437(1) or (2) or Section 439(1) of the Cr.P.C. and that order can be cancelled when a case for cancellation is made out under Section 437(5) or 439(2) Cr.P.C. [Para 9.6, 9.7] State through CBI v. T. Gangi Reddy @ Yerra Gnagi Reddy, 2023 LiveLaw (SC) 37 : AIR 2023 SC 457 : (2023) 4 SCC 253 : (2023) 1 SCR 741 : 2023 INSC 44

Code of Criminal Procedure, 1973; Proviso to Section 167(2) - In a case where an accused is released on default bail under Section 167(2) Cr.P.C., and thereafter on filing of the chargesheet, a strong case is made out and on special reasons being made out from the chargesheet that the accused has committed a non-bailable crime and considering the grounds set out in Sections 437(5) and Section 439(2), his bail can be cancelled on merits and the Courts are not precluded from considering the application for cancelation of the bail on merits. However, mere filing of the chargesheet is not enough, but as observed and held hereinabove, on the basis of the chargesheet, a strong case is to be made out that the accused has committed non-bailable crime and he deserves to be in custody. [Para 13] State through CBI v. T. Gangi Reddy @ Yerra Gnagi Reddy, 2023 LiveLaw (SC) 37 : AIR 2023 SC 457 : (2023) 4 SCC 253 : (2023) 1 SCR 741 : 2023 INSC 44

Code of Criminal Procedure, 1973; Proviso to Section 167(2) - To hold that default bail cannot be cancelled on merits will be giving premium to lethargic investigation-In a given case, even if the accused has committed a very serious offence, may be under the NDPS or even committed murder(s), still however, he manages through a convenient investigating officer and he manages not to file the chargesheet within the prescribed time limit mentioned under Section 167(2) Cr.P.C. and got released on default bail, it may lead to giving a premium to illegality and/or dishonesty- Such an interpretation frustrates the course of justice. [Para 12] State through CBI v. T. Gangi Reddy @ Yerra Gnagi Reddy, 2023 LiveLaw (SC) 37 : AIR 2023 SC 457 : (2023) 4 SCC 253 : (2023) 1 SCR 741 : 2023 INSC 44

Section 173 - Report of police officer on completion of investigation

Code of Criminal Procedure, 1973; Section 173 (8) - District Police Chief cannot order further investigation without permission from magistrate or higher court - Power to order further investigation rests with either with the concerned magistrate or with a higher court and not with an investigating agency. Peethambaran v. State of Kerala, 2023 LiveLaw (SC) 402 : 2023 INSC 481

Code of Criminal Procedure, 1973; Section 173(8) - Even after the final report is laid before the Magistrate and is accepted, it is permissible for the investigating agency to carry out further investigation in the case. There is no bar against conducting further investigation under Section 173(8) of the CrPC after the final report submitted under Section 173(2) of the CrPC has been accepted - Prior to carrying out further investigation under Section 173(8) of the CrPC it is not necessary that the order accepting the final report should be reviewed, recalled or quashed - Though the order passed by the Magistrate accepting a final report under Section 173 is a judicial order, there is no requirement for recalling, reviewing or quashing the said order for carrying out further investigation under Section 173(8) of the CrPC - There is nothing in the CrPC to suggest that the court is obliged to hear the accused while considering an application for further investigation under Section 173(8) of the CrPC - Mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial and effective justice. (Para 50, 73, 76- 77) State v. Hemendhra Reddy, 2023 LiveLaw (SC) 365 : 2023 INSC 460

Code of Criminal Procedure, 1973; Section 173(8), 173(2)(i) - Alternatives before a Magistrate when a “Final Report” is filed - The Magistrate may either: (1) accept the report and take cognizance of offence and issue process, (2) may disagree with the report and drop the proceeding or may take cognizance on the basis of report/material submitted by the investigation officer, (3) may direct further investigation under Section 156(3) and require police to make a report as per Section 173(8) of the CrPC. (4) may treat the protest complaint as a complaint, and proceed under Sections 200 and 202 of the CrPC. State v. Hemendhra Reddy, 2023 LiveLaw (SC) 365 : 2023 INSC 460

Section 190 - Cognizance of offences by Magistrates

Code of Criminal Procedure, 1973; Section 190 - the cognizance is taken of an offence and not of the offender - As such the phrase “taking cognizance” has nowhere been defined in the Cr.PC, however has been interpreted by this Court to mean “become aware of” or “to take notice of judicially. (Para 10) Cardinal Mar George Alencherry v. State of Kerala, 2023 LiveLaw (SC) 203 : (2023) 2 SCR 1014 : 2023 INSC 250

Code of Criminal Procedure, 1973; Section 190, 203 - an order of dismissal under Section 203 of the Criminal Procedure Code is no bar to the entertainment of a second complaint on the same facts, but it will be entertained only in exceptional circumstances, e.g. that the previous order was passed on an incomplete record or on a misunderstanding of nature of complaint or it was manifestly absurd. Cardinal Mar George Alencherry v. State of Kerala, 2023 LiveLaw (SC) 203 : (2023) 2 SCR 1014 : 2023 INSC 250

Section 197 – Prosecution of Judges and public servants

Code of Criminal Procedure, 1973 – Section 197(1) – Discharge of Official Duties by Public Servants – Previous sanction requirement – Determination of the existence of a reasonable nexus between an alleged offence by a public servant and their official duties – Held, a public servant would be considered to have acted to purported to have acted in the discharge of their official duty at the time of the commission of an alleged offence if the said government employee could take cover – rightly or wrongly – under any existing policy, and as such, would be granted protection under Section 197(1) of the Code of Criminal Procedure, 1973 – Appeal allowed. A. Srinivasulu v. State of Rep. by the Inspector of Police, 2023 LiveLaw (SC) 485

Section 200 - Examination of complainant

Code of Criminal Procedure, 1973; Section 200 - No doubt, summoning of an accused is a serious matter and therefore the Magistrate before issuing the summons to the accused is obliged to scrutinize carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face any frivolous complaint, nonetheless one of the objects of Section 202 Cr.P.C. is also to enable the Magistrate to prosecute a person or persons against whom grave allegations are made. Just as it is necessary to curtail vexatious and frivolous complaints against innocent persons, it is equally essential to punish the guilty after conducting a fair trial. (Para 18) Cardinal Mar George Alencherry v. State of Kerala, 2023 LiveLaw (SC) 203 : (2023) 2 SCR 1014 : 2023 INSC 250

Section 202 - Postponement of issue of process

Code of Criminal Procedure, 1973; Section 202, 204 - While summoning an accused who resides outside the jurisdiction of court, it is obligatory upon the Magistrate to inquire into the case himself or direct investigation be made by a police officer or such other officer for finding out whether or not there is sufficient ground for proceeding against the accused. (Para 22) Deepak Gaba v. State of Uttar Pradesh, 2023 LiveLaw (SC) 3 : AIR 2023 SC 228 : (2023) 3 SCC 423 : 2023 INSC 1

Section 204 - Issue of process

Code of Criminal Procedure, 1973; Section 256 - Where the complainant had already been examined as a witness in the case, it would not be appropriate for the Court to pass an order of acquittal merely on non-appearance of the complainant. BLS Infrastructure Ltd. v. Rajwant Singh, 2023 LiveLaw (SC) 153 : (2023) 4 SCC 326 : (2023) 2 SCR 183 : 2023 INSC 187

Code of Criminal Procedure, 1973; Section 204 - Summoning order is to be passed when the complainant discloses the offence, and when there is material that supports and constitutes essential ingredients of the offence. It should not be passed lightly or as a matter of course. When the violation of law alleged is clearly debatable and doubtful, either on account of paucity and lack of clarity of facts, or on application of law to the facts, the Magistrate must ensure clarification of the ambiguities. Summoning without appreciation of the legal provisions and their application to the facts may result in an innocent being summoned to stand the prosecution/trial. Initiation of prosecution and summoning of the accused to stand trial, apart from monetary loss, sacrifice of time, and effort to prepare a defence, also causes humiliation and disrepute in the society. It results in anxiety of uncertain times. (Para 21) Deepak Gaba v. State of Uttar Pradesh, 2023 LiveLaw (SC) 3 : AIR 2023 SC 228 : (2023) 3 SCC 423 : 2023 INSC 1

Section 211 - Contents of charge

Code of Criminal Procedure, 1973; Sections 211-224, 464 - Trial Courts ought to be very meticulous when it comes to the framing of charges. In a given case, any such error or omission may lead to acquittal and/or a long delay in trial due to an order of remand which can be passed under sub-section (2) of Section 464 of CrPC. Apart from the duty of the Trial Court, even the public prosecutor has a duty to be vigilant, and if a proper charge is not framed, it is his duty to apply to the Court to frame an appropriate charge. (Para 16) Soundarajan v. State, 2023 LiveLaw (SC) 314 : AIR 2023 SC 2136 : 2023 INSC 377

Section 235 - Judgment of acquittal or conviction

Code of Criminal Procedure, 1973; Section 235(2) - Appellate court reverses acquittal of two accused in murder case - However imposes sentences on them without hearing them on sentence as per Section 235(2) - Supreme Court sets aside the sentence finding it to be ex-facie illegal as accused were not heard - In view of sub Section (2) of Section 235 of CrPC, the court is obliged to hear the accused persons after their conviction on the quantum of sentence before passing a sentence against them - The principle of according opportunity of hearing to the convict before sentencing him is equally applicable where the sentencing is done by the appellate court. Fedrick Cutinha v. State of Karnataka, 2023 LiveLaw (SC) 326 : AIR 2023 SC 2102 : 2023 INSC 384

Section 277 - Language of record of evidence

Code of Criminal Procedure, 1973; Section 277 - The evidence of the witness has to be recorded in the language of the court or in the language of the witness as may be practicable and then get it translated in the language of the court for forming part of the record. However, recording of evidence of the witness in the translated form in English language only, though the witness gives evidence in the language of the court, or in his/her own vernacular language, is not permissible - The text and tenor of the evidence and the demeanor of a witness in the court could be appreciated in the best manner only when the evidence is recorded in the language of the witness - When a question arises as to what exactly the witness had stated in his/her evidence, it is the original deposition of the witness which has to be taken into account and not the translated memorandum in English prepared by the Presiding Judge - All courts while recording the evidence of the witnesses, shall duly comply with the provisions of Section 277 of Cr.PC. (Para 25) Naim Ahamed v. State (NCT of Delhi), 2023 LiveLaw (SC) 66 : (2023) 1 SCR 1061 : 2023 INSC 85

Section 306 - Tender of pardon to accomplice

Code of Criminal Procedure, 1973; Section 306 (4)(a) - Prevention of Corruption Act, 1988; Section 5(2) - When the Special Court chooses to take cognizance directly under Section 5(2) of the Prevention of Corruption Act, the question of Approver being examined as a witness in the Court of the Magistrate as required by Section 306 (4)(a) of the Code of Criminal Procedure does not arise. A. Srinivasulu v. State of Rep. by the Inspector of Police, 2023 LiveLaw (SC) 485

Code of Criminal Procedure, 1973; Sections 306 and 307 - Section 306(4) CrPC contemplates that every person accepting a tender of pardon be examined as a witness both in the Court of the Magistrate taking cognizance and in the subsequent trial. The requirement of Section 306(4)(a) CrPC is relaxed in cases falling under Section 307 CrPC, which empowers the Court to which the case is committed for trial, itself to grant pardon. Where the Special Judge takes cognizance of offence directly, Section 306 of the Code would get by-passed it is Section 307 of the Code which would become applicable. A. Srinivasulu v. State of Rep. by the Inspector of Police, 2023 LiveLaw (SC) 485

Section 311 - Power to summon material witness, or examine person present

Code of Criminal Procedure, 1973; Sections 311 and 391 - Power of the court to take additional evidence - Section 311 of the Cr.P.C. consists of two parts; the first gives power to the court to summon any witness at any stage of inquiry, trial or other proceedings, whether the person is listed as a witness, or is in attendance though not summoned as a witness. Secondly, the trial court has the power to recall and re-examine any person already examined if his evidence appears to be essential to the just decision of the case. On the other hand, the discretion under Section 391 of the Cr.P.C. should be read as somewhat more restricted in comparison to Section 311 of the Cr.P.C., as the appellate court is dealing with an appeal, after the trial court has come to the conclusion with regard to the guilt or otherwise of the person being prosecuted. The appellate court can examine the evidence in depth and in detail, yet it does not possess all the powers of the trial court as it deals with cases wherein the decision has already been pronounced. (Para 16) State of Rajasthan v. Asharam @ Ashumal, 2023 LiveLaw (SC) 316 : AIR 2023 SC 2228 : 2023 INSC 383

Section 311A – Power of Magistrate to order person to give specimen signatures or handwriting

Code of Criminal Procedure, 1973; Section 311A – Evidence Act, 1872; Section 73 - Specimen Signatures and Handwriting Samples - “to be a witness against himself” - Since specimen signatures and handwriting samples are not incriminating by themselves as they are to be used for the purpose of identification of the handwriting on a material with which the investigators are already acquainted with, compulsorily obtaining such specimens would not infringe the rule against self-incrimination enshrined in Article 20(3) of the Constitution of India. (Para 53, 57) Santosh @ Bhure v. State (G.N.C.T.) of Delhi, 2023 LiveLaw (SC) 418 : 2023 INSC 443

Section 313 - Power to examine the accused

Code of Criminal Procedure, 1973; Section 313 - Power to examine the accused - (i) It is the duty of the Trial Court to put each material circumstance appearing in the evidence against the accused specifically, distinctively and separately. The material circumstance means the circumstance or the material on the basis of which the prosecution is seeking his conviction; (ii) The object of examination of the accused under Section 313 is to enable the accused to explain any circumstance appearing against him in the evidence; (iii) The Court must ordinarily eschew material circumstances not put to the accused from consideration while dealing with the case of the particular accused; (iv) The failure to put material circumstances to the accused amounts to a serious irregularity. It will vitiate the trial if it is shown to have prejudiced the accused; (v) If any irregularity in putting the material circumstance to the accused does not result in failure of justice, it becomes a curable defect. However, while deciding whether the defect can be cured, one of the considerations will be the passage of time from the date of the incident; (vi) In case such irregularity is curable, even the appellate court can question the accused on the material circumstance which is not put to him; and (vii) In a given case, the case can be remanded to the Trial Court from the stage of recording the supplementary statement of the concerned accused under Section 313 of CrPC. (viii) While deciding the question whether prejudice has been caused to the accused because of the omission, the delay in raising the contention is only one of the several factors to be considered. (Para 16) Raj Kumar @ Suman v. State (NCT of Delhi), 2023 LiveLaw (SC) 434 : AIR 2023 SC 3113 : 2023 INSC 520

Code of Criminal Procedure, 1973; Section 313 – Power to examine the accused - While recording the statement under Section 313 of CrPC in cases involving a large number of prosecution witnesses, the Judicial Officers should take benefit of Section 313 (5) of CrPC, which will ensure that the chances of committing errors and omissions are minimized. Section 313(5) CrPC says that the Court may take help of the Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section. (Para 21) Raj Kumar @ Suman v. State (NCT of Delhi), 2023 LiveLaw (SC) 434 : AIR 2023 SC 3113 : 2023 INSC 520

Code of Criminal Procedure, 1973; Section 313 - It is optional for the accused to explain the circumstances put to him under section 313, but the safeguard provided by it and the valuable right that it envisions, if availed of or exercised, could prove decisive and have an effect on the final outcome, which would in effect promote utility of the exercise rather than its futility. (Para 16) Premchand v. State of Maharashtra, 2023 LiveLaw (SC) 168 : AIR 2023 SC 1487 : (2023) 5 SCC 522 : (2023) 2 SCR 119 : 2023 INSC 207

Code of Criminal Procedure, 1973; Section 313 - Iudicial experience has shown that more often than not, the time and effort behind such an exercise put in by the trial court does not achieve the desired result. This is because either the accused elects to come forward with evasive denials or answers questions with stereotypes like ‘false’, ‘I don’t know’, ‘incorrect’, etc. Many a time, this does more harm than good to the cause of the accused. For instance, if facts within the special knowledge of the accused are not satisfactorily explained, that could be a factor against the accused. Though such factor by itself is not conclusive of guilt, it becomes relevant while considering the totality of the circumstances. (Para 16) Premchand v. State of Maharashtra, 2023 LiveLaw (SC) 168 : AIR 2023 SC 1487 : (2023) 5 SCC 522 : (2023) 2 SCR 119 : 2023 INSC 207

Code of Criminal Procedure, 1973; Section 313 - Settled principles summarized. (Para 15) Premchand v. State of Maharashtra, 2023 LiveLaw (SC) 168 : AIR 2023 SC 1487 : (2023) 5 SCC 522 : (2023) 2 SCR 119 : 2023 INSC 207

Code of Criminal Procedure, 1973; Section 313 (5) - Once a written statement is filed by the accused under Section 313(5) of the Code of Criminal Procedure, 1973 and the Trial Court marks it as exhibit, such statement must be treated as part of the statement of the accused under Section 313(1) read with Section 313(4) Cr.P.C. (Para 17) Premchand v. State of Maharashtra, 2023 LiveLaw (SC) 168 : AIR 2023 SC 1487 : (2023) 5 SCC 522 : (2023) 2 SCR 119 : 2023 INSC 207

Section 319 - Power to proceed against other persons appearing to be guilty of offence

Code of Criminal Procedure, 1973 - Section 319 Cr.P.C., which envisages a discretionary power, empowers the court holding a trial to proceed against any person not shown or mentioned as an accused if it appears from the evidence that such person has committed a crime for which he ought to be tried together with the accused who is facing trial. Such power can be exercised by the court qua a person who is not named in the FIR, or named in the FIR but not shown as an accused in the charge-sheet. Therefore, what is essential for exercise of the power under section 319, Cr. PC is that the evidence on record must show the involvement of a person in the commission of a crime and that the said person, who has not been arraigned as an accused, should face trial together with the accused already arraigned. (Para 9) Jitendra Nath Mishra v. State of U.P., 2023 LiveLaw (SC) 480 : AIR 2023 SC 2757 : 2023 INSC 576

Code of Criminal Procedure 1973; Section 319 - Power under Section 319 ought to be exercised sparingly and would require much stronger evidence than near probability of the accused person’s complicity. The test elucidated by the Constitution Bench is as under -The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. Vikas Rathi v. State of U.P., 2023 LiveLaw (SC) 172 : (2023) 2 SCR 6 : 2023 INSC 186

Code of Criminal Procedure, 1973; Section 319 - Supreme Court lays down procedural guidelines to prevent abuse. Juhru v. Karim, 2023 LiveLaw (SC) 128 : AIR 2023 SC 1160 : (2023) 5 SCC 406 :(2023) 2 SCR 519 : 2023 INSC 148

Section 320 - Compounding of offences

Code of Criminal Procedure, 1973; Section 320 - Negotiable Instruments Act, 1881; Section 147 - Compounding of offences - The Appellants cannot be convicted on the basis of the orders passed by the courts below, as the settlement is nothing but a compounding of the offence-This is a very clear case of the parties entering into an agreement and compounding the offence to save themselves from the process of litigation. When such a step has been taken by the parties, and the law very clearly allows them to do the same, the High Court then cannot override such compounding and impose its will. (Para 8, 9, 11) B.V. Seshaiah v. State of Telangana, 2023 LiveLaw (SC) 75 : AIR 2023 SC 717 : (2023) 2 SCR 293 : 2023 INSC 93

Section 378 - Appeal in case of acquittal

Code of Criminal Procedure, 1973; Section 378 - Appeal against acquittal- Scope of interference - Unless such a finding is found to be perverse or illegal/impossible, it is not permissible for the appellate Court to interfere with the same. Nikhil Chandra Mondal v. State of West Bengal, 2023 LiveLaw (SC) 171 : AIR 2023 SC 1323 : (2023) 2 SCR 20 : 2023 INSC 198

Code of Criminal Procedure, 1973; Section 378, 397-401 - In an appeal/revision, the High court could have set aside the order of acquittal only if the findings as recorded by the trial Court were perverse or impossible. (Para 7) P. Sivakumar v. State, 2023 LiveLaw (SC) 116

Code of Criminal Procedure, 1973; Section 378 - Scope of interference in an appeal against acquittal is limited - Unless the High Court found that the appreciation of the evidence is perverse, it could not have interfered with the finding of acquittal recorded by the Trial Court. (Para 21) Rajaram Sriramulu Naidu v. Maruthachalam, 2023 LiveLaw (SC) 46 : AIR 2023 SC 471 : (2023) 1 SCR 809 : 2023 INSC 51

Section 385 - Procedure for hearing appeals not dismissed summarily

Code of Criminal Procedure, 1973; Section 385 - Procedure for hearing appeals not dismissed summarily - The language of Section 385 shows that the Court sitting in appeal governed thereby is required to call for the records of the case from the concerned Court below. The same is an obligation, power coupled with a duty, and only after the perusal of such records would an appeal be decided. (Para 36) Jitendra Kumar Rode v. Union of India, 2023 LiveLaw (SC) 347 : 2023 INSC 419

Code of Criminal Procedure, 1973; Section 385 - Whether, in the absence of the records of the Court of Trial, the appellate Court could have upheld the conviction and enhanced the quantum of fine? Held, the Accused, in appeal, has a right to have the record perused by the Appellate Court and, therefore, upholding a conviction by merely having noted that the counsel for the accused not having the record at the time of filing the appeal is “doubtful” and that “no one can believe” the appeal would have been filed without perusing the record, as observed by the High Court is not correct. The job of the Court of Appeal is not to depend on the lower Court's judgment to uphold the conviction but, based on the record available before it duly called from the Trial Court and the arguments advanced before it, to come to a conclusion thereon. (Para 33) Jitendra Kumar Rode v. Union of India, 2023 LiveLaw (SC) 347 : 2023 INSC 419

Section 389 - Suspension of sentence pending the appeal; release of appellant on bail

Code of Criminal Procedure, 1973; Section 389 - the Appellate Court should not reappreciate the evidence at the stage of Section 389 of the Cr.P.C. and try to pick up few lacunas or loopholes here or there in the case of the prosecution. Such would not be a correct approach. (Para 33) Omprakash Sahni v. Jai Shankar Chaudhary, 2023 LiveLaw (SC) 389 : AIR 2023 SC 2202 : (2023) 6 SCC 123 : 2023 INSC 478

Code of Criminal Procedure, 1973; Section 389 - to suspend the substantive order of sentence under Section 389 Cr.P.C., there ought to be something apparent or gross on the face of the record, on the basis of which, the Court can arrive at a prima facie satisfaction that the conviction may not be sustainable - the endeavour on the part of the Court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the Trial Court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. (Para 33) Omprakash Sahni v. Jai Shankar Chaudhary, 2023 LiveLaw (SC) 389 : AIR 2023 SC 2202 : (2023) 6 SCC 123 : 2023 INSC 478

Code of Criminal Procedure, 1973; Section 389 - Appellant was convicted by the Trial Court under Sections 307,323 and 341 IPC - High Court suspended the sentence, but imposed strict conditions of deposit of fine amount of Rs. 1,00,000/- along with a surety of Rs. 1,00,000/- and two bail bonds of Rs. 50,000/- each - Waiving these conditions, the Supreme Court observed: Excessive conditions imposed on the appellant, in practical manifestation, acted as a refusal to the grant of bail - Can the Appellant, for not being able to comply with the excessive requirements, be detained in custody endlessly? To keep the Appellant in jail, that too in a case where he normally would have been granted bail for the alleged offences, is not just a symptom of injustice, but injustice itself. Guddan @ Roop Narayan v. State of Rajasthan, 2023 LiveLaw (SC) 45

Section 391 - Appellate Court may take further evidence or direct it to be taken

Code of Criminal Procedure, 1973; Section 391 - Appellate Court may take further evidence or direct it to be taken - The power to take additional evidence in an appeal is to be exercised to prevent injustice and failure of justice, and thus, must be exercised for good and valid reasons necessitating the acceptance of the prayer. (Para 17) State of Rajasthan v. Asharam @ Ashumal, 2023 LiveLaw (SC) 316 : AIR 2023 SC 2228 : 2023 INSC 383

Section 406 - Power of Supreme Court to transfer cases and appeals

Code of Criminal Procedure, 1973; Section 406 - That most of the accused and witnesses are from A state is not a ground to transfer case from B state to A state. (Para 12) Ka Rauf Sherif v. Directorate of Enforcement, 2023 LiveLaw (SC) 284 : (2023) 6 SCC 92 : 2023 INSC 347

Code of Criminal Procedure, 1973; Section 406 - The lack of jurisdiction of a Court to entertain a complaint can be no ground to order its transfer. A congenital defect of lack of jurisdiction, assuming that it exists, inures to the benefit of the accused and hence it need not be cured at the instance of the accused to his detriment. (Para 11) Ka Rauf Sherif v. Directorate of Enforcement, 2023 LiveLaw (SC) 284 : (2023) 6 SCC 92 : 2023 INSC 347

Code of Criminal Procedure 1973; Section 406 - This Court has allowed transfers only in exceptional cases considering the fact that transfers may cast unnecessary aspersions on the State Judiciary and the prosecution agency. Thus, over the years, this Court has laid down certain guidelines and situations wherein such power can be justiciably invoked. Afjal Ali Sha @ Abjal Shaukat v. State of West Bengal, 2023 LiveLaw (SC) 268 : (2023) 2 SCR 1090 : 2023 INSC 257

Code of Criminal Procedure, 1973; Section 432 - Remission - It is not open to the State to adopt an arbitrary yardstick for picking up cases for premature release. It must strictly abide by the terms of its policies bearing in mind the fundamental principle of law that each case for premature release has to be decided on the basis of the legal position as it stands on the date of the conviction subject to a more beneficial regime being provided in terms of a subsequent policy determination. The provisions of the law must be applied equally to all persons. Moreover, those provisions have to be applied efficiently and transparently so as to obviate the grievance that the policy is being applied unevenly to similarly circumstanced persons. An arbitrary method adopted by the State is liable to grave abuse and is liable to lead to a situation where persons lacking resources, education and awareness suffer the most. Rajkumar v. State of Uttar Pradesh, 2023 LiveLaw (SC) 144 : 2023 INSC 718

Code of Criminal Procedure, 1973; Section 406 - Transfer of case from one state to another must be ordered sparingly - followed Umesh Kumar Sharma vs. State of Uttarakhand, 2020 (11) SCALE 562 - It is also important to bear in mind that transfer of a criminal case from one State to another implicitly reflect upon the credibility of not only the State judiciary but also of the prosecution agency. Neelam Pandey v. Rahul Shukla, 2023 LiveLaw (SC) 141

Code of Criminal Procedure, 1973; Section 406 - Negotiable Instruments Act, 1881; Section 138, 142(1) - Notwithstanding the non obstante clause in Section 142(1) of the NI Act, the power of this Court to transfer criminal cases under Section 406 Cr.P.C. remains intact in relation to offences under Section 138 of the NI Act - the contention that the non obstante clause in Section 142(1) of the Act of 1881 would override Section 406 Cr.P.C. and that it would not be permissible for this Court to transfer the said complaint cases, in exercise of power thereunder, cannot be countenanced. (Para 13) Yogesh Upadhyay v. Atlanta Ltd., 2023 LiveLaw (SC) 125 : AIR 2023 SC 1151 : (2023) 2 SCR 511 : 2023 INSC 150

Section 432 – Power to suspend or remit sentences

Code of Criminal Procedure 1973; Section 432 – Remission - In determining the entitlement of a convict for premature release, the policy of the State Government on the date of the conviction would have to be the determinative factor. However, if the policy which was prevalent on the date of the conviction is subsequently liberalised to provide more beneficial terms, those should also be borne in mind. (Para 4) Hitesh v. State of Gujarat, 2023 LiveLaw (SC) 72

Section 433 - Power to commute sentence.

Code of Criminal Procedure, 1973; Section 433 (2) - Grant of Remission - Presiding Judge should give adequate reasons while giving opinion under Section 432 (2) Cr.P.C. Jaswant Singh v. State of Chhattisgarh, 2023 LiveLaw (SC) 33 : AIR 2023 SC 419 : 2023 INSC 31

Section 437 - When bail may be taken in case of non-bailable offence

Code of Criminal Procedure, 1973; Section 437 - Seeking pre-deposit of bank guarantee for grant of bail is unsustainable. Makhijani Pushpak Harish v. State of Gujarat, 2023 LiveLaw (SC) 345

Code of Criminal Procedure, 1973; Section 437 - 439, Section 357 - Interim victim compensation cannot be imposed as a condition for anticipatory bail - Question of interim victim compensation cannot form part of the bail jurisprudence - Victim compensation is simultaneous with the final view taken in respect of the alleged offence, i.e., whether it was so committed or not and, thus, there is no question of any imposition pre-finality of the matter pre-trial - In cases of offences against body, compensation to the victim should be methodology for redemption. Similarly, to prevent unnecessary harassment, compensation has been provided where meaningless criminal proceedings had been started. Such a compensation can hardly be determined at the stage of grant of bail. Talat Sanvi vs State of Jharkhand, 2023 LiveLaw (SC) 83 : (2023) 1 SCR 289 : 2023 INSC 80

Code of Criminal Procedure, 1973; Section 437 - 439 - The process of criminal law cannot be utilised for arm-twisting and money recovery, particularly while opposing the prayer for bail - The question as to whether pre-arrest bail, or for that matter regular bail, in a given case is to be granted or not is required to be examined and the discretion is required to be exercised by the Court with reference to the material on record and the parameters governing bail considerations. The concession of pre-arrest bail or regular bail could be declined even if the accused has made payment of the money involved or offers to make any payment; conversely, in a given case, the concession of pre-arrest bail or regular bail could be granted irrespective of any payment or any offer of payment. (Para 10) Bimla Tiwari v. State of Bihar, 2023 LiveLaw (SC) 47 : (2023) 1 SCR 501 : 2023 INSC 45

Code of Criminal Procedure, 1973; Section 437-439, 389 - Excessive conditions cannot be imposed while granting bail/suspension of sentence - Conditions of bail cannot be so onerous that their existence itself tantamounts to refusal of bail. (Para 9-16) Guddan @ Roop Narayan v. State of Rajasthan, 2023 LiveLaw (SC) 45

Section 438 - Direction for grant of bail to person apprehending arrest.

Code of Criminal Procedure, 1973; Section 438 - Anticipatory Bail - Detailed elaboration of evidence has to be avoided at the stage of grant / rejection of bail / anticipatory bail. We do not appreciate such a lengthy elaboration of evidence at this stage - In the matters pertaining to liberty of citizens, the Court should act promptly - An inordinate delay in passing an order pertaining to liberty of a citizen is not in tune with the constitutional mandate. Sumit Subhaschandra Gangwal v. State of Maharashtra, 2023 LiveLaw (SC) 373

Code of Criminal Procedure 1973; Section 438 - Supreme Court sets aside anticipatory bail granted to an accused in a 'casting couch' rape case - The nature and gravity of the alleged offence has been disregarded by the HC - So has the financial stature, position and standing of the accused vis-à-vis the appellant/prosecutrix been ignored. (Para 22) Ms. X v. State of Maharashtra, 2023 LiveLaw (SC) 205 : (2023) 2 SCR 1112 : 2023 INSC 252

Code of Criminal Procedure, 1973; Section 438 - Addition of a serious offence can be a circumstance where a Court can direct that the accused be arrested and committed to custody even though an order of bail was earlier granted in his favour in respect of the offences with which he was charged when his application for bail was considered and a favourable order was passed. The recourse available to an accused in a situation where after grant of bail, further cognizable and non-bailable offences are added to the FIR, is for him to surrender and apply afresh for bail in respect of the newly added offences. The investigating agency is also entitled to move the Court for seeking the custody of the accused by invoking the provisions of 437(5)3 and 439(2)34 Cr.P.C., falling under Chapter XXXII of the Statute that deals with provisions relating to bails and bonds. (Para 20) Ms. X v. State of Maharashtra, 2023 LiveLaw (SC) 205 : (2023) 2 SCR 1112 : 2023 INSC 252

Code of Criminal Procedure, 1973; Section 438 - Victim has right to be heard in bail application of the accused - No doubt, the State was present and was represented in the said proceedings, but the right of the prosecutrix could not have been whittled down for this reason alone. In a crime of this nature where ordinarily, there is no other witness except for the prosecutrix herself, it was all the more incumbent for the High Court to have lent its ear to the appellant. (Para 23, 24) Ms. X v. State of Maharashtra, 2023 LiveLaw (SC) 205 : (2023) 2 SCR 1112 : 2023 INSC 252

Code of Criminal Procedure 1973; Section 438 - Is it necessary to exhaust remedy available in Sessions Court before approaching High Court?- Whether the High Court exercising jurisdiction under Section 438 has discretion not to entertain such an application on the ground that the applicant must first apply to the Court of Sessions - SC to consider. Gauhati High Court Bar Association v. State of Assam, 2023 LiveLaw (SC) 177

Code of Criminal Procedure, 1973; Section 438 - Anticipatory bail application for money laundering offence should satisfy rigours of Section 45 PMLA - Observations made by the High Court that the provisions of Section 45 of the Act, 2002 shall not be applicable in connection with an application under Section 438 Cr.P.C. is just contrary to the decision in the case of Assistant Director Enforcement Directorate vs Dr VC Mohan and the same is on misunderstanding of the observations made in the case of Nikesh Tarachand Shah Vs. Union of India and Anr.; (2018) 11 SCC 1. (Para 5) Directorate of Enforcement v. M. Gopal Reddy, 2023 LiveLaw (SC) 138 : 2023 INSC 163

Code of Criminal Procedure; Section 438 - Dismissal for default / non prosecution of bail application - Practice adopted by the High Court in passing orders for dismissal of bail application in default disapproved. Rahul Sharma v. State of Uttar Pradesh, 2023 LiveLaw (SC) 64

Code of Criminal Procedure, 1973; Section 438 - Ordinarily, there is no justification in adopting such a course that for the purpose of being given the concession of pre-arrest bail, the person apprehending arrest ought to make payment. (Para 11) Bimla Tiwari v. State of Bihar, 2023 LiveLaw (SC) 47 : (2023) 1 SCR 501 : 2023 INSC 45

Section 439 - Special powers of High Court or Court of Session regarding bail

Code of Criminal Procedure, 1973; Section 439 - though usually the proper course of action of the High Court ought to have been to confine itself to the acceptance/rejection of the prayer for bail made by the accused under Section 439 of the Code; however, the High Court, being satisfied that there were, in its opinion, grave lapses on the part of the police/investigative machinery, which may have fatal consequences on the justice delivery system, could not have simply shut its eyes. (Para 13) Sanjay Dubey v. State of Madhya Pradesh, 2023 LiveLaw (SC) 435 : 2023 INSC 519

Section 482 - Saving of inherent power of High Court.

Code of Criminal Procedure, 1973; Section 482 - Unexplained inordinate delay must be taken into consideration as a very crucial factor and ground for quashing a criminal complaint. (Para 16) Chanchalapati Das v. State of West Bengal, 2023 LiveLaw (SC) 446

Code of Criminal Procedure, 1973; Section 482 - Where purely civil disputes, more often than not, relating to land and/or money are given the colour of criminality, only for the purposes of exerting extra-judicial pressure on the party concerned, which, we reiterate, is nothing but abuse of the process of the court. (Para 36) Gulam Mustafa v. State of Karnataka, 2023 LiveLaw (SC) 421 : AIR 2023 SC 2999 : 2023 INSC 511

Code of Criminal Procedure, 1973; Section 482 - High Court cannot quash criminal proceedings at section 482 Cr.P.C. stage by saying charges aren't proved - High Court cannot conduct a "mini trial" while exercising powers under Section 482 Cr.P.C. - At the stage of discharge and/or while exercising the powers under Section 482 Cr.P.C., the Court has a very limited jurisdiction and is required to consider “whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not.” - Whether the criminal proceedings was/were malicious or not, is not required to be considered at this stage. The same is required to be considered at the conclusion of the trial - What is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried. Central Bureau of Investigation v. Aryan Singh, 2023 LiveLaw (SC) 292 : AIR 2023 SC 1987 : (2023) 2 SCR 819 : 2023 INSC 338

Code of Criminal Procedure, 1973; Section 482 - Supreme Court criticises Kerala HC for overstepping jurisdiction to pass general orders - High Court in its overzealous approach" exceeded its jurisdiction under Section 482 CrPC by enlarging the scope of the petition and crossed all the boundaries of judicial activism and judicial restraint by passing such orders under the guise of doing real and substantial justice. (Para 28) Cardinal Mar George Alencherry v. State of Kerala, 2023 LiveLaw (SC) 203 : (2023) 2 SCR 1014 : 2023 INSC 250

Code of Criminal Procedure, 1973; Section 482 - Supreme Court opines that it is desirable that High Courts refrain from quashing cases under the Prevention of Corruption Act even if it suspected that the case is registered by a new government against officers who supported the previous government-it would be eminently desirable if the high courts maintain a hands-off approach and not quash a first information report pertaining to “corruption” cases, specially at the stage of investigation, even though certain elements of strong-arm tactics of the ruling dispensation might be discernible. (Para 74) State of Chattisgarh v. Aman Kumar Singh, 2023 LiveLaw (SC) 158 : AIR 2023 SC 1441 : 2023 INSC 189

Code of Criminal Procedure, 1973; Section 482 - Penal Code, 1860; Section 420 - A breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Merely on the allegation of failure to keep up promise will not be enough to initiate criminal proceedings - The criminal Courts are not meant to be used for settling scores or pressurise parties to settle civil disputes. Sarabjit Kaur v. State of Punjab, 2023 LiveLaw (SC) 157 : (2023) 5 SCC 360 : 2023 INSC 188

Code of Criminal Procedure, 1973; Section 482 - Constitution of India, 1950; Article 142 - In cases of offences relating to matrimonial disputes, if the Court is satisfied that the parties have genuinely settled the disputes amicably, then for the purpose of securing ends of justice, criminal proceedings inter-se parties can be quashed. Rangappa Javoor v. State of Karnataka, 2023 LiveLaw (SC) 74

Code of Criminal Procedure 1973; Section 482 - Criminal proceedings quashed - the respondent had failed to make specific allegation against the appellants herein in respect of the aforesaid offences. The factual position thus would reveal that the genesis as also the purpose of criminal proceedings are nothing but the aforesaid incident and further that the dispute involved is essentially of civil nature. The appellants and the respondents have given a cloak of criminal offence in the issue-coupled with the fact that in respect of the issue involved, which is of civil nature, the respondent had already approached the jurisdictional civil court by instituting a civil suit and it is pending, there can be no doubt with respect to the fact that the attempt on the part of the respondent is to use the criminal proceedings as weapon of harassment against the appellants. (Para 10, 11) Usha Chakraborty v. State of West Bengal, 2023 LiveLaw (SC) 67 : AIR 2023 SC 688 : 2023 INSC 86

Code of Criminal Procedure 1973; Section 482 - Jurisdiction under Section 482 Cr.P.C. is to be exercised with care and caution and sparingly. To wit, exercise of the said power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of process of law. (Para 3) Usha Chakraborty v. State of West Bengal, 2023 LiveLaw (SC) 67 : AIR 2023 SC 688 : 2023 INSC 86

Code of Criminal Procedure, 1973; Section 482 - Appeal against High Court order that quashed criminal proceedings observing that that the complaint lodged against the husband demand of dowry is inherently improbable and that it falls in the category of a bogus prosecution - Allowed - Merely because the wife was suffering from the disease AIDS and/or divorce petition was pending, it cannot be said that the allegations of demand of dowry were highly/inherently improbable - Once the charge sheet was filed after the investigation having been found prima facie case, it cannot be said that the prosecution was bogus. X v. State of Uttar Pradesh, 2023 LiveLaw (SC) 26

Code of Criminal Procedure, 1973; Section 482 - As per the settled position of law, it is the right conferred upon the Investigating Agency to conduct the investigation and reasonable time should be given to the Investigating Agency to conduct the investigation unless it is found that the allegations in the FIR do not disclose any cognizable offence at all or the complaint is barred by any law. State represented by the Inspector of Police v. Maridass, 2023 LiveLaw (SC) 25

Code of Criminal Procedure, 1973; Section 482 - Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989; Sections 3(1)(v) and (va) - Private civil dispute between the parties is converted into criminal proceedings - Initiation of the criminal proceedings therefore, is nothing but an abuse of process of law and Court - Complaint and summoning order quashed. B. Venkateswaran v. P. Bakthavatchalam, 2022 LiveLaw (SC) 14 : AIR 2023 SC 262 : 2023 INSC 18